Sexual assaults & assessment of damages

 K v G [2010] QSC 13 

The plaintiff’s claim for personal injury by her guardian was in respect of sexual assaults for which the defendant had been convicted of whilst she was a child:

[9] According to a Certificate of Conviction tendered as part of the plaintiff’s case, on 20 May 2004 the defendant pleaded guilty in the District Court to the following counts: “Count 1: Indecent treatment of a child under 12 / on the 25th day of December, 1997 at Brisbane in the State of Queensland.

Count 2: Maintaining a sexual relationship with a child with a circumstance of aggravation / between the 21st day of January, 2003 and the 23rd day of February, 2003 at Brisbane in the State of Queensland.

Counts 3 & 4: Indecent treatment of a child under 16 (under care) / on the 22nd day of January, 2003 at Brisbane in the State of Queensland.

Counts 5-8, 11 & 13: Indecent treatment of a child under 16 (under care) / on the 27th day of January, 2003 at Brisbane in the State of Queensland.

Counts 9, 10 & 12: Carnal knowledge of a child under 16 (under care) / on the 27th day of January, 2003 at Brisbane in the State of Queensland.”

Counts 3-13 were clearly incidents of indecent treatment and carnal knowledge which occurred in the course of the sexual relationship referred to in Count 2.

[10] The defendant was sentenced to three and a half years’ imprisonment for the offence of maintaining the sexual relationship with the plaintiff, and was sentenced to two years’ imprisonment for each of the other offences.

[11] This evidence all supports findings that the defendant committed the assaults particularised in the statement of claim as indicia of the unlawful sexual relationship which he had with the plaintiff. The plaintiff has proved her case in this regard.

There were a number of issues before his Honour Daubney J.

Rule 476 – Proceeding in the absence of the defendant

His Honour was prepared to proceed in the defendant’s absence pursuant to rule 476 of the UCPR and in reliance of affidavit evidence.

Assessment of Damages

His Honour noted the dearth of authorities and made reference to Paten v Bale (1999) 135 QLD 36 and AM v KW [2005] NSWSC 876 and distinguished the approach in those cases of apportioning the damage from the first assault (80%) to aggravations of similar assaults (5%) over a period of time:

[14] The case before me is different from that considered by M Wilson J in that the assaults which are relied on as constituting the actionable conduct for the purposes of pursuing the claim for damages in the present case occurred only over a period of weeks. That is quite a different situation from that which confronted her Honour, where there were five discrete assaults which occurred over a period of two years. It seems to me that it would be manifestly unrealistic, and an exercise in artificiality, in the present case to attribute particular amounts of damages to particular elements of the assaulting conduct.

 

General Damages

His Honour proceeded according to section 61 of the Civil Liability Act 2003 (“CLA”) and regulation 6 of the Civil Liability Regulation 2003, together with schedules 3 – 6.  Dr Byth provided a report:

[30] Dr Byth, as a specialist psychiatrist, is a medical expert who is appropriately qualified to perform a PIRS assessment. He has provided a PIRS report and has made an assessment as required under schedules 5 and 6 to the Regulation. Dr Byth has assessed the plaintiff’s level of psychiatric impairment using PIRS at 44 per cent.

An ISV of 45 was assessed by his Honour and damages of $80.900.00:

[33] In assessing the plaintiff’s ISV, I therefore have regard to the PIRS rating of 44 per cent. I also have regard to the following matters: (a) The plaintiff clearly has insight into her psychiatric difficulties;

(b) She is a young woman who, despite the possibility of shortened life expectancy referred to by Dr Byth, still faces the prospect of many years of mental suffering;

(c) The mental disorder has clearly caused significant suffering and anguish to this plaintiff, and will continue to do so;

(d) There has been a significant loss of enjoyment of the amenities of life by reason of the psychiatric disorders;

(e) There is nothing to suggest that the plaintiff would have suffered the psychiatric disorders in any event.

[34] After taking all these matters into account, I assess the plaintiff’s ISV at 45. That assessment yields an award of general damages of $80,900.

Past and future care

 

Gratuitous care was assessed pursuant to section 59 of the CLA having satisfied the 6 hours a week for 6 months threshold:

[37] Many of the tasks particularised in the schedule are clearly services of the same kind which would have been provided by the plaintiff’s mother to the plaintiff before the breach of duty happened. So, for example, significant time is claimed in relation to domestic duties such as cleaning, vacuuming, mopping, cooking and so on. There are, however, particulars of services, such as driving the plaintiff to psychologist and psychiatrist appointments, administering her money, administering her medication, and similar, which I would regard as services which were and are necessary for the plaintiff, the need for which arose solely out of the psychiatric injuries in relation to which the present award of damages is being made. I would also accept, on the evidence before me, that these services have been provided for at least six hours per week and for at least six months since the need for them arose as a consequence of the sexual assaults.

 His Honour allowed past care at 10 hours a week over 7 years at the reduced rate submitted by the plaintiff of $12.50 per hour, yielding $45,500.00.

In respect of future care:

[40] The plaintiff has an ongoing requirement for care. Ms De Campo has provided a report which would have the plaintiff under a regime of receiving two hours care each morning plus an attendant to sleep over, and has assessed the commercial cost of provided such a level of care at a minimum of $1,229 per week.

[41] The plaintiff, of course, has the significant benefit of her mother’s support. The plaintiff is still a young woman, and will require care for many years to come. The best I can do, on the relevantly limited material before me, is to make a global assessment which would represent an allowance for the provision of gratuitous services in the future, whilst incorporating a significant discount for vicissitudes. An appropriate global award would, in the circumstances, be $100,000.

Special damages

 

The amount claimed in respect of the travel was modest and was allowed at $1,000.00.

Economic loss

 

The report of Dr Byth was relied upon, the affidavit evidence of the plaintiff and her mother, together with academic results.   Past was allowed at $10,400 with superannuation of $4,680.00 and futures at $226,560, with $20,390.00 for superannuation, after being discounted by 40% for vicissitudes of life:

[48] In all the circumstances, I am inclined to accede to the submission made on behalf of the plaintiff that, adopting a relatively conservative approach, the plaintiff could have been expected to undertake, at the very least, part-time work entitling her to, say, $250 net per week. Allowing that over the four years since the incident would yield an assessment of $52,000, with interest thereon of $10,400. Further, she would be entitled to recover lost superannuation benefits on that amount of $4,680.

[49] An accurate assessment of the plaintiff’s future economic loss is simply not possible. On first principles, of course, the damages being assessed under this head represent diminution of her capacity to earn income, and, in this case, the base from which one proceeds is that she was an average student with possible sensitive pre-morbid personality traits. Those factors raise the clear prospect of necessary limitation of the range of occupations which would have been open to her. Prediction of the future course of this plaintiff’s life is also difficult. She has not completely been deprived of her capacity to earn income, but it has certainly been significantly adversely affected. In all the circumstances, I am again inclined to adopt the submissions advanced on the plaintiff that a conservative approach to the matter would be to allow her future loss of income at the rate of $400 net per week over, say, 44 years to her notional retirement, yielding $377,600, which I would then discount by 40 per cent to account for the vicissitudes of life, the prospects of finding gainful employment, and as representative of the risks by reason of her pre-incident academic and psychological state. The amount allowed for future economic loss will therefore be $226,560. In addition, the plaintiff will be awarded $20,390 by way of an employer’s lost contributions to her superannuation entitlements.

 

Future expenses

 

The plaintiff failed to make out respite care of 6 – 8 weeks a year, but did receive an award for psychiatric treatment:

[51] Dr Byth did, however, say in his first report, and confirm in his second report, that the plaintiff would benefit from specialist psychiatric treatment, including inpatient and outpatient treatment, over the next 5-10 years, and this would cost $14,000 per year. Converting that to an average weekly cost of $270, over, say, 7.5 years, yields $88,425 after appropriate discounting.

Aggravated damages

 

A claim for aggravated damages as opposed to exemplary damages was also made. The basis was distinguished from Paten v Bale (supra):

[55] In the present case, the plaintiff cast her claim for aggravated damages on another basis, namely: “The assessment of aggravated damages should take into account stress and humiliation and, in this instance, the circumstances of a significantly older family friend taking advantage of his position of responsibility and trust to inflict quite serious damages upon the plaintiff.”

His Honour commented at paragraph 56 that an award of aggravated damages is fundamentally compensatory in nature.  His Honour considered all the compensatory payments, including the $34,500.00 received pursuant to Criminal Offence Victims Act 1995 and in particular section 22 inter alia:

“(1) A right, entitlement or remedy under this part is in addition to, does not limit, and is not in substitution for, any right, entitlement or remedy under common law or otherwise.

(3) Compensation provided to an applicant under this part is intended to help the applicant and is not intended to reflect the compensation to which the applicant may be entitled under common law or otherwise.”

His Honour noted that receipt of such a payment does not disentitle a claim for aggravated damages, but concluded:

[59] Ultimately, having regard to the factors considered under the assessment of the plaintiff’s general damages, and otherwise the circumstances of this case, I am not persuaded that this is an appropriate case for an award of aggravated damages. Aggravated damages are not awarded for a punitive purpose – quite properly, the plaintiff did not seek an award of exemplary damages. As M Wilson J noted in Paten v Bale,6 this was the correct approach, given that the defendant had already been punished by the criminal law. It seems to me, however, that the awards made in this judgment are the proper and appropriate compensation to which the plaintiff is entitled in this civil proceeding. In that regard, and for completeness, I should note that, this being a claim for personal injury damages caused by unlawful sexual assaults, the prohibition on an award of aggravated damages under the CLA is not applicable in this case – see s 52(2)(b).

6 At [15].  

Brisbane Barrister – David Cormack

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