As of April 2022, the Australian National Redress Scheme (NRS):-
Had received 15,280 applications.
Made 9,417 decisions – including 8,087 payments, totalling over AUS$700.1 million, with an average award of redress of AUS$86,566.
Had made 9,167 offers for redress. (Readers of this Blog will be aware that Applicants to the NRS have six months to consider their offer of redress).
5,638 applications are currently being progressed.
710 are on hold or paused, including 113 applications due to institution not participating (representing 1.8% of applications on hand).
The total number of applications finalised and redress payments from establishment to date are 8,476 applications with redress of AUS$700.1 million having been paid out to date.
There still remains a number of institutions that were either named in the Royal Commission and/or in an application made to the NRS that have failed to join the NRS and they are:-
CYMS Basketball Association, VIC
Devonport Community Church, TAS
Forrest Tennis Club, ACT
Kenja Communication, NSW
Woodlands Golf Club, VIC
As previously advised these institutions will have financial sanctions applied and may lose their charitable status until such times as they join the NRS.
However, the ongoing effectiveness of the NRS (where the average award of redress is AUS$86,566) in finally determining claims relating to CSA must surely be impacted by very significant damages that claimant’s are recovering in the Courts in Australia.
In our Blog on New South Wales Supreme Court, we commented on a recent judgement handed down by the Supreme Court in New South Wales where damages totalling AUS$1,353,850 including AUS$400,000 for general damages and AUS$40,00 for aggravated damages were awarded to a defendant who was sexually assaulted when he was aged between 14 and 16 years old.
This has been recently followed with an award of AUS$1.9 million to a former altar boy who brought a civil claim against Melbourne’s archbishop, Peter Comensoli, claiming the Catholic Archdiocese of Melbourne was vicariously liable for him being sexually abused by Victorian priest Desmond Gannon.
It is likely that this is one of the contributing factors to the sluggish rate at which applications for redress are being received by the NRS.
The Scottish Child Abuse Inquiry (SCAI) is now hearing evidence, at public sessions and both in person and by video link, on the abuse of children in foster care, including on children who were boarded out. This phase of evidence started on 3 May 2022 and is expected to run until autumn 2022.
Before the current phase on foster care, SCAI broke new ground by hearing from various experts over two days in March 2022 at “round table” evidence sessions. These focused on the psychology of individual adult abusers in the context of preventing the abuse of children in care. Between 1 and 8 June 2022, written submissions were lodged by the experts who attended these sessions and also by certain other experts.
SCAI heard closing submissions on evidence relating to boarding schools on 17 February 2022. This phase of evidence involved over 220 witnesses and nearly 20,000 documents. In due course, SCAI will publish case study findings on the boarding school evidence. Case study findings on evidence heard previously on child migration also remain to be published. To date, SCAI has published seven sets of case study findings.
It remains to be seen whether any more case studies will follow after the foster care one. SCAI previously confirmed investigations into 4 young offender institutions, 3 local authority establishments and 3 further schools but has not yet confirmed whether evidence will be heard in public on any of those.
SCAI was established as a statutory inquiry under the Inquiries Act 2005 on 1 October 2015 with an overall aim of raising public awareness of the abuse of children in care (under 18) for the period “within living memory” of any person who suffered such abuse to no later than 17 December 2014. SCAI’s work will conclude with a report to Scottish Ministers. This report was originally to be delivered by October 2019 but the deadline for it was extended before the COVID-19 pandemic to “as soon as reasonably practicable” after then.
To 31 March 2022, SCAI had cost £55,309,420, with £3,654,009 expenditure incurred from 1 January 2022 to 31 March 2022 alone.
Scottish Government has recently updated its list of organisations who have agreed to make a “fair and meaningful” contribution to the cost of the Scottish in care abuse redress scheme. Fourteen contributors are now listed.
In a recent response to a freedom of information request, Scottish Government confirmed that, from the scheme opening on 8 December 2021 to 7 April 2022, 23 redress payments had been made. In response to the questions asked, amounts are only confirmed for the three most recent payments: one at the maximum £100k level and two at £10k. They also confirmed that, in the first quarter of the scheme’s operation, the number of applications received exceeded forecast, with 9% of the expected five year total of survivor applications received in that period. In response to the high number of applications received, a further ten redress caseworkers are being recruited to Redress Scotland, the independent body administering the scheme. A link to the Redress Scotland website is here.
In an earlier letter to the Convenor of the Scottish Parliament’s Education, Children and Young People Committee, John Swinney, MSP and Deputy First Minster of Scotland advised that, as at 8 March 2022, over 3,000 calls had been made to the Redress Scotland phone lines, with more than 750 survivor redress applications and around 50 next of kin applications received in that period.
To re-cap, the scheme is for redress payments upon successful application to those who were abused as children (under 18) in relevant residential care settings in Scotland before 1 December 2004. Successful applicants will receive a redress payment of one of £10k, £20k, £40k, £60k, £80k or £100k. The £10k is a “fixed rate payment” which may be topped-up to any of the higher levels by an “individually assessed payment” taking account of the nature, severity, frequency and duration of the abuse and any other relevant matter.
Next of kin of relevant deceased persons can apply for a redress payment of £10k, or a relevant share of that, where the person abused died on or after 1 December 2004. A litigation waiver is to be signed by applicants in exchange for a redress payment with the waiver operating in favour of Scottish Government and any “relevant scheme contributor” listed by Scottish Government as making a “fair and meaningful” contribution to the scheme.
Written by Frank Hughes, partner and Fiona McEwan, associate
The ongoing developments regarding vicarious liability in England and Wales have been covered previously by my colleagues in the BLM Abuse and Neglect News Blog; especially in light of the recent cases of Blackpool FC v DSN [2021] EWCA Civ 1352 and TVZ v Manchester City Football Club [2022] EWHC 7 (QB) in which the basis for a vicarious liability finding was considered in detail.
In Australia, similar to England and Wales, there have been some recent cases dealing with the issue of vicarious liability which provide further guidance as to how these types of cases are being dealt with.
PCB v The Geelong College
The case of PCB v The Geelong College [2021] VSC 633 was hailed as a landmark case not only for the level of damages awarded as a result of a finding of liability on the grounds of negligence but also for reframing the way a Defendant ought to approach vicarious liability in proceedings concerning historic sexual abuse.
The Claimant brought proceedings against the College which established, owned and operated a building known as the House of Guilds which was a space for students to pursue hobbies and crafts. The Claimant alleged that a community member, who had no formal relationship with the College but was sometimes left to supervise the House of Guilds and occasionally had access to keys, groomed and sexually assaulted him on more than 50 occasions, including at the House of Guilds, in the community member’s car as well as the Claimant’s home.
The College submitted that it should not be held liable for various reasons including: • It provided a full-time warden and had a system of rostering and supervision within the House of Guilds; • Prior to the enactment of the Working with Children Act 2005, when the alleged conduct took place, was a “different time”; • It was not in a position to exercise control over what happened on premises other than its own; and • the abuse occurred as a result of contact between the Claimant and the community member that was arranged with the knowledge and permission of the Claimant’s parents.
As to the allegation that the College was vicariously liable for the abuse perpetrated by the community member on the basis that he was in an employment-like relationship with the College, the Judge dismissed it and affirmed that vicarious liability requires:
• the presence of a relationship of employer and employee; and • a special role that the employer has assigned to the employee.
There had been no formal directions or assignments to the community member by the College thus there was no relationship between the College and the perpetrator.
As such the claim for vicarious liability was dismissed.
DP v Bird
The case of DP v Bird [2021] VSC 850 required the Court to consider whether the Diocese of Ballarat was vicariously liable for sexual abuse allegedly perpetrated by one of its priests, Father Coffey, on two occasions in 1971. The abuse occurred at Father Coffey’s home. He was the assistant parish priest as well as a teacher at the associated primary school.
The issues considered in that case were:
Was the relationship between the priest and the Diocese or Bishop such that it gave rise to vicarious liability on the part of the Diocese for the priest’s conduct? (i.e. the nature of the relationship)
If there is a relationship that gives to vicarious liability, is the Diocese or the Bishop liable for the priest’s unlawful conduct, it being accepted that the assaults were unlawful and far outside the priest’s clerical role? (i.e. should the Diocese be held liable?)
The Judge considering the matter ultimately found that the answer was yes to both of these questions and found that the Diocese were vicariously liable for Father Coffey’s conduct.
The Claimant relied upon authorities in the UK and Canada that the Diocese ought to be vicariously liable irrespective of whether the priest was an actual employee. The Diocese argued that unless it can be proven Father Coffey was its employee, then it cannot be held liable for the Father Coffey’s conduct arguing that the law in Australia at this time meant that considering vicarious liability outside of an employment scenario was prevented.
The Judge raised that “whether or not a priest can be said to be an employee of his or her diocese or bishop turns on the facts of the case, in particular, the manner of the priest’s appointment and the nature or structure of the relevant religious organisation”.
His analysis of the case law was that there was not a confined theory of vicarious liability restricted solely to an employer/employee relationship as contended by the Diocese.
For present purposes, it was accepted that the priest was not an employee of the Diocese as such but otherwise found in the claimant’s favour in respect of the nature of the relationship determining that vicarious liability ought not be limited to “preconceived notions of agency or employment” and, in line with other case law, “the inquiry ought to be directed to the totality of the relationship so as to enable a determination as to whether the Diocese should be held vicariously liable for Coffey’s actions as an assistant parish priest”.
The Judge considered the appropriate inquiry was whether Father Coffey’s role as a priest placed him in a position of power and intimacy such that his apparent performance of his role as a priest gave the occasion for the wrongful acts and that because he misused or took advantage of his position, the wrongful acts could be regarded as having been committed in the course of his employment.
It was ultimately found that Father Coffey was engaged in a pastoral visit when committing the alleged abuse thus in a position of power and therefore the Diocese was vicariously liable for Father Coffey’s conduct due to:
The close nature of the relationship between the Bishop, the Diocese and the Catholic community in Port Fairy (where St Patrick’s school was located),
The Diocese’s general control over Father Coffey’s role and duties within St Patrick’s parish,
Father Coffey’s pastoral role in the Port Fairy Catholic community; and
The relationship between the Claimant, his family, Father Coffey and the Diocese, which was “one of intimacy and imported trust in the authority of Christ’s representative, personified by Coffey”.
Brief comparison with recent English case law
As above, I refer to my colleagues’ blog posts as to the specificities relating to the law of vicarious liability in England and Wales.
The general rule is that vicarious liability is considered via an established two stage test which is:
Is the relevant relationship between the perpetrator and organisation one of employment or “akin to employment”? Where it is not clear then regard should be had to the following (amongst other issues as identified in the Christian Brothers case):
The employer is more likely to have the means to compensate the victim and can be expected to have insured against that liability
The act will have been committed as a result of activity being taken by the employee on behalf of the employer
The employee’s activity is likely to be part of the business activity of the employer
The employer by employing the employee to carry out on the activity will have created the risk of the act being committed by the employee.
The employee will to a greater or a lesser degree have been under the control of the employer
If so, was the act sufficient to closely connect with that employment or quasi-employment?
In respect of the recent cases of Blackpool and DSN (2021) and TVZ v Manchester City Football Club (2021), the Courts found:
Blackpool v DSN – in the first instance, it found Blackpool Football Club to be vicariously liable as it was accepted that the relationship between the Club and abuser was one akin to employment and that the tort committed was in circumstances closely connected with the functions or duties arising from that relationship. The Court of Appeal reversed this decision and held that the Club was not liable. The basis for this was that it was determined there was not a relationship akin to employment as there must be at the very least some measure of control that the Defendant is able to exert over the activities of the perpetrator to make it fair, just and reasonable to impose liability for his torts and in this case, “Blackpool FC was under no relevant statutory duty to boys who wanted to play football and did not ‘place’ the boys with Mr Roper in any meaningful sense of the word. The opposite was the case: Mr Roper scouted for boys who had no previous connection with Blackpool FC at all unless and until he introduced them to Blackpool.”
TVZ v Manchester City Football Club – regarding the issue of vicarious liability, the judge acknowledged that this was highly fact sensitive and that its resolution was not entirely straightforward: it depended on a detailed assessment of the nature of the relationship between the perpetrator (Mr Bennell) and the defendant. The judge determined that the claimants had failed to establish ‘the essential ingredient of their case’, namely that Mr Bennell was in a relationship with the defendant “akin to employment” as Mr Bennell’s footballing activities were voluntary and undertaken in his spare time, his activities as a football coach had a distinct existence independent of the defendant, and there was very little evidence of the Defendant exercising control over Mr Bennell’s activities amongst other things. As such the claimants’ claims were dismissed (as well as for other reasons including limitation).
Conclusion
The issue of vicarious liability still very much remains an area that needs to be considered in minute detail and on a case-by-case basis with each claim depending on its specific facts and circumstances. The specific role/s of the accused perpetrator, the supervising entity and the complainant always needs to be closely examined, including the context in which the alleged abuse occurred. This is notwithstanding the specific test/criteria established and utilised in order to determine whether a finding of vicarious liability should be made.
What is clear is that the same issues relating to vicarious liability arise over various jurisdictions and a general unwillingness to make a finding of vicarious liability in cases where the specifics of an abuser’s involvement/employment with an association being sued is not crystal clear. It is also important to be aware that whilst there are some recent (comprehensive) decisions in this area those in DSN (noted above) and in BXB v Barry Congregation of Jehovah’s Witnesses (2021) are being appealed and the latter will proceed to a hearing at the Supreme Court in late 2022.
As recently reported by the BBC and elsewhere, including The Daily Telegraph and The Times, Fettes College has agreed to pay £400,000 to a former pupil who alleged physical and sexual abuse by a teacher between 1975 and 1981. The Telegraph reports that 20 former pupils have ongoing claims against the school, with the former school master named as an alleged abuser.
Separately, Scottish Legal News has recently reported a “six figure settlement” to a 44 year old man who alleged sexual abuse by a teacher at Aberlour House in 1990 when he was age 12. At the time, Aberlour House was a prep school for Gordonstoun, with the schools legally separate then though they have since merged.
Further detail on these cases is provided in a previous blog.
The potential for interest in Scottish claims to add considerably to awards in this area is worth noting on past solatium (general damages or PSLA award) and past wage loss. This is particularly so with interest in such non-recent Scottish abuse claims being calculated from the occurrence of the abuse rather than from the commencement of litigation. In T v The English Province of the Congregation of Christian Brothers, Sheriff McGowan, ASPIC, 30 January 2020, for example, the award net of interest was £185,000. Interest on past losses increased this by £132,224 to £317,224.
The Scottish Civil Justice Council (SCJC) is presently reviewing matters relating to the Scottish 8% per year full judicial rate of interest. The minutes of SCJC’s meeting on 25 April 2022 record that “further work is required to clarify the policy objectives that should inform the mechanism used for setting the rate” and that SCJC has “requested a further policy paper to clarify the overarching policy objective in setting the judicial rate of interest”. SCJC is next scheduled to meet on 18 July then 24 October, both 2022. The likelihood of further challenges to the present rate in litigation cannot be discounted.
Written by Frank Hughes, partner and Fiona McEwan, associate
Following our blog yesterday specifically commenting on the report in to the deaths of Star Dobson & Arthur Labinjo-Hughes (12/21), we comment further on the shocking statistics regarding child deaths. Just this year other children including Amina-Faye Johnson & Matthew Langley (1/22), Kyrell Matthews (3/22), Nafahat Diini & Logan Mwangi (4/22) have all died
An NSPCC Report in 12/21 noted:
In a five year period there had been 58 child deaths due to assault. On average 1 child a week is killed in the UK due to abuse or neglect. Children under the age of 1 are the most likely age group at risk, followed by 16-24 year olds. Homicides are most commonly caused by the child’s parent or step-parent.
Key Findings of the NSPCC Review are:
England
The Child Safeguarding Practice Review Panel received notification of 482 serious incidents relating to 514 children between 1 January and 31 December 2020. Of these notifications 206 were in relation to child deaths:
36 were caused by maltreatment within the family
17 were related to extra-familial child homicide or fatal assault
20 were other deaths related to maltreatment
Scotland
The Care Inspectorate received 82 notifications that initial case reviews (ICRs) had been undertaken between 1 April 2018 and 31 March 2021, of which 32 progressed to a significant case review (SCR). The Care Inspectorate analysed 50 ICRs that did not progress to a full SCR, 23 SCRs and two thematic learning reviews; relating to 96 children and young people as part of its triennial review of findings. Of these 96 children and young people 28 had died:
2 died of culpable homicide or murder
4 died of neglect
7 died for reasons related to drugs
1 died of physical injury
Northern Ireland
Between January 2003 and December 2008 there were 24 case management reviews (CMRs). 18 of the reviews were convened on children who had died:
4 were related to deaths from physical or sexual assault
However according to recent press reports in some tabloids the true figures are significantly greater. There are claims of cover ups and sensational headlines of ‘The 228 child deaths they didn’t want to tell you about’ in which it is contended in 92% of cases children’s services failed victims.
Lord Laming’s inquiry into the death of Victoria Climbie in 2003 was meant to improve safeguarding.
Some of the Key Recommendations:
According to recent press reports the actual outcomes:
Free social workers from time-consuming bureaucracy
Social workers now spend 80% of their time in front of computers
A new child-protection agency be formed to ensure policy is implemented at a local level and that lessons are shared when children are killed
The agency was never created
Local agencies must always work together and share information
About three-quarters of serious case reviews say the failure to share information was a problem
At risk children should have a nominated worker
Often four to five different workers will be involved
safeguarding children’s boards, to be chaired by the council chief executive.
Boards are often chaired by children’s services directors. It is claimed social services departments are therefore reporting to themselves
No child protection case should ever be closed until social workers have seen the child and their families
Many cases – like Hylene Essilfie (4/07) – are marked ‘no further action’ without further interviews
The above claims question whether the child care system is in crisis?
*dates denote press interest
Written by Jagdeep Hayre (jagdeep.hayre@blmlaw.com)
The list of reviews into child protection is a long one. With each well-known case (Victoria Climbié, Holly Wells & Jessica Chapman, Baby P, Daniel Pelka) or scandal (Rotherham) often comes a review into the child protection system headed by prominent individuals (Lord Laming, Sir Michael Bichard, Eileen Munro, and Professor Alexis Jay OBE) and recommendations for improvements. Improvements to multi-agency working have been recommended time and again.
Following on from the tragic deaths of Arthur Labinjo-Hughes and Star Hobson (see earlier posts here and here) a National Review into their deaths was undertaken by Annie Hudson, Chair of the Child Safeguarding Practice Review Panel. Its report was published on 26 May 2022.
Arthur died in June 2020 at the hands of his father (Thomas Hughes) and his father’s partner (Emma Tustin). He was six years old. Star died in September 2020 at the hands of her mother (Frankie Smith) and her mother’s partner (Savannah Brickhill). She was 16 months old. In both cases numerous bruises were found on their bodies, and relatives had reported concerns to the authorities. Their deaths were clearly preventable. Both children were murdered by their ‘stepmothers’ – which might suggest that professionals retain an ingrained reluctance to view females as perpetrators of abuse.
In Arthur’s case the agencies (including Solihull MBC and West Midlands Police) failed to listen to Arthur on his own or to draw on Emma Tustin’s history of domestic abuse (both as a victim and a perpetrator). Solihull MBC has been ordered to make urgent improvements to its children’s social care services. In Star’s case the agencies (including Bradford Council and West Yorkshire Police) failed to work in true cooperation. Some information was shared, but it was not put in context or evaluated strategically. The failure to listen to the family’s concerns was also significant. Bradford Council has been stripped of control of its children social care functions – which were transferred to a trust.
The National Review makes eight national recommendations. They are:
Creation of genuinely multi-professional Multi-Agency Child Protection Units
Development of new National Multi-Agency Child Protection Practice Standards
Strengthening of local Safeguarding Partners
Changes to multi-agency inspections
Improvement to the performance of safeguarding partners through a new Child Safeguarding Practice Review Panel
Driving a sharper performance focus and better co-ordination of child protection policy in Government
Improvement to the use of data
Specific practice improvements in relation to domestic abuse.
The Education Secretary said he was committed to acting on the recommendations, but no plan or timescales have been published yet. The creation of dedicated multi-agency child protection teams in each area would mark a significant shift in this area.
Written by Geneviève Rich at BLM (geneviève.rich@blmlaw.com)
New Child Safe Standards are being introduced in the State of Victoria, Australia, on 1 July 2022. We will focus on the record keeping requirements that schools in Victoria will have to follow to comply with the Child Safe Standards – noting that schools in England and Wales may be subject to similar requirements in the not too distant future.
From 1 July 2022 schools in Victoria will have to:
“develop a policy or statement that details the processes the school has in place to meet Public Records Office Victoria Recordkeeping Standards [PROV].”
Victorian law will impose these recordkeeping standards on independent and religious schools – as well as on state schools.
In response to the Australian Royal Commission into Institutional Responses to Child Sexual Abuse, PROV introduced new record keeping standards. These standards require schools (and other organisations), to:
indefinitely retain records about the development of policy, strategy and procedure;
retain reporting and investigation records for 99 years; and
retain training and development records for 45 years.
The new law will also require:
school staff and volunteers to understand their obligations on information sharing and recordkeeping; and
that training for staff and volunteers includes guidance on the information sharing and recordkeeping obligations.
In its Interim Report, the Independent Inquiry into Child Sexual Abuse in England & Wales (IICSA) highlighted that documentation had been critical to the Inquiry’s work. For example, records relating to Knowl View School in Rochdale showed that the local authority had been aware of sexual abuse allegations but had ignored them, though this had been denied at the IICSA hearing. In other cases, poor record keeping or lack of records altogether, had hindered IICSA’s investigations. One organisation had retained hardly any records relating to its programme for migrating children to Australia, for example. The Interim Report noted that this indicated a ‘failure to have the welfare and needs of the children as priorities.’
Of general importance to schools and other organisations charged with a duty of care towards children the IICSA Interim Report specifically indicated that – “The inquiry will consider whether it can recommend changes that would particularly benefit victims and survivors of child sexual abuse.”
IICSA’s final report is expected to be published by the end of the year – perhaps as early as this Autumn. It is likely, if not certain, that recommendations will be made in the final report, that mirror some if not all of those new requirements that are shortly to be introduced in the State of Victoria. Indeed, it is possible that IICSA might event recommend wider record keeping requirements than those about to be implemented in Victoria, such as long or indefinite retention periods for holding reports of abuse made by pupils or others, and for retaining records of the investigations that took place following such allegations.
A New Jersey Catholic diocese has agreed to pay $87.5m to settle claims involving clergy sexual abuse with some 300 alleged victims. This is one of the largest cash settlements involving the Catholic Church in the US – although short of the $660m the Archdiocese of Los Angeles paid more to more than 500 victims in 2007.
The agreement between the diocese of Camden and plaintiffs was fled with the US bankruptcy court in Camden. The diocese had filed for bankruptcy following receipt of a number of lawsuits which stemmed from relaxation on the statute of limitations.
The relaxation on the law allowed victims of sexual abuse by priests to bring a claim up until the age of 55 or within seven years of when they realised that the abuse had caused them harm. The previous statute of limitations was age 30 or two years after first realising the abuse caused harm.
Although there are around 300 victims, details of the abuse have not been provided at this stage.
The diocese of Camden has issued an apology through Bishop Dennis Sullivan who stated – “I want to express my sincere apology to all those who have been affected by sexual abuse in our diocese. My prayers go out to all survivors of abuse and I pledge my continuing commitment to ensure that this terrible chapter in the history of the diocese of Camden, New Jersey, never happens again.”
Subject to approval from a judge a trust will be set up and funded over the next four years by the diocese to compensate the abuse victims who could receive up to $290,000 each. The deal also includes a provision that the diocese implements enhanced child protection measures.
The diocese said the deal calls for setting up a trust, which will be funded over four years by the diocese and “related Catholic entities” to compensate survivors of sexual abuse. Part of the deal also required maintaining or “enhancing” protocols to protect children.
The deal also paves the way for lawsuits against insurances firms that cover dioceses against charges of negligence. In previous abuse settlements with US Catholic institutions, insurers have been part of the agreement. The New Jersey deal is the first time a church abuse settlement has not included insurers, meaning the firms can be sued separately and victims can seek increased compensation.
Jeff Anderson who represents a number of the victims commented that this was “a pivot in the child protection movement” because of the potential to hold the church and their insurers to greater account.
Since the 1980s, US Catholic dioceses have reportedly amassed complaints from over 17,000 alleged victims and paid over $4bn in settlements. Clearly this figure has the potential to grow significantly with the New Jersey settlement leading a trend in that respect.
In a recent judgment handed down by the Supreme Court in New South Wales the court took the opportunity to provide clarification regarding the assessment of damages where the claimant/plaintiff has been the victim of a sexual assault.
The Court was clear that the restrictions and limitations contained in the Civil Liability Act 2002 (NSW) relating to the assessment of damages do not apply to claims involving sexual assaults and that damages in these claims will be assessed in common law.
The claimant in these proceedings was working at a cinema owned by the defendant when he was aged 14 to 16 years old. During this time he was groomed by the defendant before being sexually assaulted by the defendant on numerous occasions.
The claimant gave evidence of several sexual assaults that he was subjected to between August 1986 and December, 1987. The defendant did not dispute the occurrence of the assaults (which was not unexpected as the defendant had been convicted of multiple indecent assaults of a person under authority and soliciting a male under 18 to commit homosexual intercourse for the alleged acts against the plaintiff).
The Court was asked to determine whether the alleged assaults had taken place and if so what impact they had on the claimant’s psychiatric diagnosis and presentation. The Court was also asked to assess the level of compensation and aggravated damages that should be awarded to the claimant for the tort of trespass to the person.
The Court was advised that after the claimant ceased to work at the cinema and have contact with the defendant that he suffered from addictive behaviour in terms of his relationship with alcohol and pornography.
The claimant also became obsessive about controlling the privacy surrounding his own personal life, he was aimless in terms of progressing his life and overall ambitions which the claimant says was due to the impact of sexual assaults.
The claimant went on to tell the Court that the sexual assaults severely adversely impacted his ability to have and maintain normal personal and social relationships, to progress his career and in fact his overall ability to enjoy all aspects of his life.
The claimant’s family gave evidence to the Court as to how they believed the claimant was impacted by the abuse, they watched him change form a sociable, well-motivated young man in terms of educational attainment and general ambition to someone who became moody, withdrawn and dis-interested and who struggled in terms of managing his own emotions and his ability to relate to others.
The claimant had been examined by two consultant psychiatrists, both of whom gave evidence at the trial and prepared a joint report. They agreed that the claimant suffered form a persistent depressive disorder and episodic alcohol abuse disorder.
However, the psychiatrist on behalf of the claimant was of the view that the sexual assaults contributed to the claimant’s diagnosis as set out above whereas the defendant’s psychiatrist differed and stated that it was only one of a number of contributing factors that had contributed to the claimant’s presentation at the time of examination. The additional factors included alcoholism and bipolar disorder, his challenging relationship with his parents, a traumatic brain injury that his son suffered in 2009, difficulties in various relationships and his partner’s own psychiatric disorder.
The NSW Supreme Court concluded that:-
The defendant was liable and accepted the claimant was sexually assaulted by the defendant in four of the seven alleged assaults that were before the Court.
Determined that these four sexual assaults were causative of the claimant’s psychiatric disorders and in doing so they preferred the evidence of the claimant’s psychiatrist and placed significant weight on the evidence before the Court showing that the claimant did not exhibit any psychiatric symptomology up until the time of the assaults, and most importantly that there was no evidence that he displayed any mental health issues prior to the sexual assaults by the defendant.
Held that section 3B(1)(a) of the Civil Liability Act 2002 (NSW) (which stipulates that the Act does not apply to civil liability from an intentional act that is a sexual assault) applies, which meant that the restrictions and limitations contained in that Act relating to the assessment of damages did not apply. As stated above this meant that damages were assessed at common law.
Awarded damages totalling AUS$400,000 for general damages and AUS$40,00 for aggravated damages.
This judgment of the NSW Supreme Court cements the view that when assessing common law damages for claims relating to sexual assault/abuse, in the absence of other causation factors or intervening events, the Courts in NSW will be willing to accept that the claimant’s mental health problems are linked to sexual abuse and/or assaults that took place in childhood and/or earlier in life.
The judgment highlights the importance of fully investigation the claimant’s life both before and after the alleged sexual assault/abuse in terms of other causation factors and/or intervening events and in particular the need to forensically examine a claimant’s medical, counselling, social work and possibly even educational records so as to ensure that all possible other causation factors have been investigated.
This judgment read in conjunction with recent judgments in Scotland, England and the introductions of the 16th edition of the JSB Guidelines in England and Wales, all of which have been covered in detail in this Blog in recent months, point towards a more nuanced and generous approach by the Courts and Judiciary in the Common Law jurisdictions to the assessment of compensatory and aggravated damages in claims which result from sexual and physical abuse.
BLM Abuse & Neglect News blog 