Historical Sexual Abuse: General & Other Personal Damages

Brockhurst v Rawlings [2021] QSC 217

The Plaintiff brought his claim against a former female teacher. The claim was for ‘grooming’ which culminated in sexual intercourse when 14. Whilst the relationship and intercourse was ‘consensual’ the Plaintiff was unable to legally consent because of his age. In the aftermath of the relationship being exposed and in the years that followed, the Plaintiff developed a persistent depressive disorder, alcohol use disorder and personality dysfunction.

The evidence about the Plaintiff’s injury was complicated by the Plaintiff’s “pre-existing” condition of oppositional defiant disorder (ODD).

Her Honour noted in response to the Plaintiff’s submissions:

[434] The plaintiff submitted that nothing in the evidence supported the proposition that his symptoms were due to ODD rather than sexual abuse. Even if I were to find that ODD played some part in his psychological state, there was no evidence before me which would permit the disentanglement of the effects of ODD from the effects of child abuse. Further, the defendant’s own doctor acknowledged that the effects of child abuse were insidious and pervasive and that (assuming the plaintiff’s allegations to be true) the sexual abuse endured by the plaintiff had a profound effect on him.

Ultimately, her Honour came to the conclusion after reviewing the ODD evidence that it did not persuade her Honour that there was a link between it and the Plaintiff’s relationship and employment “difficulties”.  Her Honour stated that the Defendant had not overcome the evidentiary burden of “disentangling” the alleged effects of the Plaintiff’s ODD and it was not to be taken into account. [447]

Her Honour concluded that the Plaintiff suffered from the “ insidious and pervasive effects of the defendant’s sexual abuse” and that it materially contributed to the psychiatric injuries. [449]

Her Honour Ryan J was referred to the interstate decision of B v Reineker [2015] NSWSC 949 by the plaintiff in support of higher general damages. Her Honour summarised Reineker as follows:

[453] The plaintiff in Reineker was sexually abused on countless occasions, over seven or so years, by a “church” family friend who became her teacher and swimming coach. The abuse began when she was in year 9. The defendant told her he wished she was his daughter and encouraged her to call him “dad”. He threatened to kill himself if she did not do as he wished. The plaintiff became isolated. She felt trapped in the relationship and guilty about it. She fell pregnant to the defendant twice. She terminated both pregnancies. She terminated the first under the defendant’s threat that he would kill himself if she did not. She suffered from PTSD, depression, and anxiety. Her capacity for work was substantially compromised. Her ability to form mature, intimate relationships was severely impaired. She was awarded $350,000 in general damages, which included aggravated damages.

Her Honour stated,  “for obvious reasons” that P v R [2010] QSC 139 “aligned with awards made in Queensland for sexual abuse/assaults” and referred to BDT v BDG [2019] QDC 74. [455]

An award of $65,000.00 for general damages was made based on the nature of the battery, being ‘consensual’ sexual intercourse and other sexual acts with a 14-year-old boy, by a female schoolteacher, together with the “aftermath of the defendant’s abuse” on the plaintiff [456]. The award included the plaintiff’s violation of his personal integrity, but not aggravated damages of $35,000.00 [490] and exemplary damages of $15,000.00 [496], which were separately awarded.

Violation of Personal Integrity

It is not uncommon for a component of the damages to include damages for a violation of personal integrity. As his Honour McGill commented in BDT v BDG at [28], it is directly related to the trespass (assault) and less concerned with the consequences of the injury. In support, McGill DCJ referred to Fleming “The Law of Torts” (9th edition 1998) p.29 and McGregor on “Damages” (15th edition 1998) paragraph 1615. Accordingly, the degree of psychological or psychiatric harm is not relevant as it is when determining general damages.

Aggravated Damages

Aggravated damages are ordinarily excluded by operation of s.52 of the Civil Liability Act 2003 (CLA), save the exceptions. The exceptions are if the CLA does not apply, or the personal injury is an intentional act done with the intent to cause a personal injury or sexual assault or other unlawful sexual misconduct. In many instances of historical sexual or serious physical abuse, the conduct is before the operation of the CLA. In instances where the conduct postdates the CLA, then it is also excluded if it is an intentional act done with the intent to cause a personal injury or sexual assault or other unlawful sexual misconduct.

Aggravated damages are awarded where the conduct is insulting or reprehensible and the award is for the loss of dignity. It is a reflection of the degree of indignation at the defendant’s conduct – Cassell & Co Ltd v Broome [1972] AC 1027; [1972] 2 WLR 645; [1972] 1 All ER 801. Accordingly, it is commonly awarded where the action is as of right, as opposed to establishing negligence, which requires falling short of a duty of care and preventative measures.

Sexual assaults or other similar conduct falls within a common category of aggravated damages. In making the award the court will take into account all the behaviour, including the behaviour of the plaintiff. If the plaintiff engaged in provocative conduct or has since sought retribution, the court will weigh the conduct. Similarly, the court will be mindful of the manner in which the defendant conducts the trial and the manner in which the plaintiff is cross-examined.

David Cormack

Brisbane Barrister & Mediator

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