New South Wales Supreme Court provides updated guidance for assessment of damages in sexual assault claims

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.

Written by Sharon Moohan, Large Loss and Casualty Partner at BLM (