Supreme Court New South Wales Medium Neutral Citation: Kucinskas v Lane (No 2) [2024] NSWSC 544 Hearing dates: 7 May 2024 Date of orders: 10 May 2024 Decision date: 10 May 2024 Jurisdiction: Common Law Before: Elkaim AJ Decision: 1. Judgment for the plaintiff in the sum of $808,690. 2. The defendant is to pay the plaintiff's costs. 3. The parties have liberty to apply on three days' notice for any variation of the costs order. 4. The judgment is to be served on the defendant and on the trustee in bankruptcy within seven days of the date of these orders. Catchwords: DAMAGES – Intentional Torts – child sexual assault – assessment of damages – past economic loss – future economic loss – damages by way of buffer – future out of pocket expenses – aggravated and exemplary damages Legislation Cited: Civil Liability Act 2002 (NSW), s 3B(1)(a) Cases Cited: Kucinskas v Lane [2024] NSWSC 373 Van Haren v Van Ryn [2023] NSWSC 776 Category: Principal judgment Parties: Jolie Kucinskas (Plaintiff) Ian Lane (Defendant) Representation: Counsel: Mr R Di Michiel (Plaintiff) Solicitors: Premier Compensation Lawyers (Plaintiff) File Number(s): 2023/356149 Publication restriction: Nil JUDGMENT 1. On 11 April 2024 I gave judgment for the plaintiff with damages to be assessed (Kucinskas v Lane [2024] NSWSC 373). These reasons concern the assessment of damages. 2. As stated in my earlier judgment the defendant has taken no part in the proceedings. That continues to be the case. His trustee in bankruptcy has also not appeared in the interests of the defendant. Background 1. Again, as previously stated, the plaintiff was sexually assaulted by the defendant when she was six and seven years of age. The defendant, then aged over 40, was her babysitter. 2. The sexual abuse to which the plaintiff was subjected is described in a statement she gave to the police on 1 February 2022. Without in any way seeking to minimise the detail of the abuse, the following is a summary: 1. the abuse took place away from the plaintiff's home. The defendant was asked to babysit because the plaintiff's mother and grandparents worked. The plaintiff's father was in England. Babysitting was regular, often weekly, or twice-weekly; 2. the first act of sexual abuse took place at a public swimming pool, where after a swim, the defendant took the plaintiff into a family change room. He masturbated in her presence. He encouraged her to touch his penis. She did so, bearing in mind of course, that she was an innocent child, incapable of consent and unaware of the sexual connotations of her actions; 3. incidents at the pool occurred on further occasions, including occasions when the defendant told the plaintiff to place her mouth on his penis; 4. the defendant also took the plaintiff to a park from time to time where she was sexually assaulted by the defendant in the toilet block; and 5. the plaintiff estimated that there were at least 12 occasions of abuse extending over a year or more. She told her mother who, after consultation with the plaintiff's grandmother, said that no further action should be taken and there should not be a report to the police. It was suggested the plaintiff's version had come from another person. The rejection of the plaintiff's report to her mother would no doubt have been a significant disappointment. 1. In her statement dated 13 April 2023 the plaintiff gives details of her history and the effects of the abuse. Based on the statement and her oral evidence, the following emerged: 1. she was born in 2001 in Sydney; 2. her father died by suicide in England in 2011; 3. the plaintiff was educated to the Higher School Certificate level; 4. after-school she had a selection of jobs, beginning with work at a fast-food restaurant; 5. when she was 12 and 13 respectively the plaintiff was sexually abused separately by two 16-year-old males. No reports were made to the police. There was also unlawful touching by a teacher while the plaintiff was at school; 6. the plaintiff began drinking alcohol when she was 12 years of age. She also started to use drugs and continued to do so until she was about 15. She stopped because of a medical reaction. She did however continue to use marijuana up to 2021; 7. her drug use led to threats of expulsion from school; 8. the plaintiff is currently working for a community services organisation. She is a team leader managing severely disabled persons. She is able to work from home except for two days per week when she needs to perform or manage 'hands-on' duties. The plaintiff averages about 35 hours per week for which she receives a net wage of $1,000; 9. the plaintiff enrolled at university in 2020, originally studying criminology and social work. This is a five-year course. She has however since dropped criminology and deferred social work. She is unsure if she will return; 10. the plaintiff had a partner with whom she lived. When she discovered that her partner's father was on a sex offenders' list, she found it very difficult to trust her partner. The relationship has now ended, there is a suggestion that her partner was "abusive and manipulative"; 11. the plaintiff commenced psychological treatment in 2021. The treatment was employer-based, and the plaintiff was unable to afford to continue the treatment on a private basis. The documents tended from Wellbeing Minder (Exhibit A) are of little assistance. 12. the plaintiff is currently seeing a psychologist at her own expense with some Medicare rebate on a fortnightly basis. She derives significant benefit from these sessions and would like them to continue. The plaintiff would also like to see a psychiatrist from time to time. 1. The plaintiff's general practitioner notes are Exhibit B. They refer to stress at work in September 2021 and also to "worsening mental health". There are continuing references to anxiety. The notes include a mental health care plan in which the presenting problems include anxiety arising from her father's suicide and the sexual abuse she suffered. The plan included referral to a psychologist. 2. There is a report from Dr Teoh, a consultant psychiatrist, dated 15 April 2024. This is the only medico-legal report relied upon. The doctor refers to the plaintiff having "intrusive memories of the abuse." He says that the plaintiff reported "significant anxiety and depressive symptoms. She has been worrying about her safety. She reported that she has been easily startled and hypervigilant." 3. Dr Teoh diagnosed Chronic Post-Traumatic Stress Disorder (PTSD). He says that a Substance Use Disorder is in remission and that the substance abuse was secondary to her PTSD. He says that "her psychiatric condition is caused by the sexual abuse during her childhood." 4. As to the future Dr Teoh stated: "Her prognosis for complete recovery is poor. She has persistent symptoms, despite counselling." In relation to employment, he states: "She has been struggling with her employment and studies. She reported poor concentration. She has intrusive memories, and she has periodic anxiety symptoms. … She admitted that she has periods of disassociation, and she has difficulty trusting people. She does not feel safe." 1. Dr Teoh suggested that the plaintiff would benefit from consulting a psychologist fortnightly to monthly for 12 months, and also from seeing a psychiatrist monthly for 12 months. He thought there was a possibility of her being on medication for two years. 2. The suggestion of treatment for 12 months is perhaps inconsistent with a diagnosis of chronic PTSD and a poor prognosis for complete recovery. It is unfortunate that the medical evidence is so sparse. As with other elements of the case there seems to have been an indifference to detail, perhaps arising from the fact that the defendant is taking no part in the proceedings. 3. My reference to indifference is reflected in the abandonment of the claim for past medical expenses due to an absence of evidence and the somewhat speculative basis upon which future economic loss is based. Assessment of damages 1. The plaintiff has claimed damages under the following heads: general damages, past and future medical expenses, past and future economic loss (including lost superannuation benefits) future domestic assistance and aggravated and exemplary damages. 2. The past medical expenses and future domestic assistance claims were abandoned during the hearing. 3. The first point to note is that the assessment of damages is not governed by the Civil Liability Act 2002 (NSW) (the CLA) because the acts of the defendant were those "done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person" (s 3B(1)(a)). 4. As a result, there are no caps on non-economic loss, and future losses are to be calculated at a discount rate of 3% instead of 5%. 5. The plaintiff's attitude, or at least that of her legal representatives, seems to have been that the case is very similar to a matter heard by Chen J and therefore a similar result should follow. The matter is Van Haren v Van Ryn [2023] NSWSC 776. In Van Haren, the plaintiff was sexually abused as a child by a person who took no part in the proceedings. 6. Chen J carefully analysed all aspects of the case and reached conclusions derived from his analysis. They are very instructive to this matter. However, the fact that he awarded $500,000 in general damages in Van Haren does not mean that I should do the same in this case. 7. It is inappropriate to compare the extent of sexual abuse in each case. No doubt each plaintiff has suffered in their own way and is subject to their personal vulnerabilities. I do however note that Dr Teoh was also retained in Van Haren. In Van Haren he diagnosed both PTSD and a major depression, the latter of which is absent in the present case. 8. As I have said, Chen J awarded general damages of $500,000. He included aggravated and exemplary damages within that award. I was urged to take the same approach. I think it is appropriate to do so but I do not agree that the same figure is applicable. In my view, based on the evidence in this case, general damages, including aggravated and exemplary damages, should be assessed at $350,000. I attribute 40% of this amount to the past. 9. In Van Haren Chen J said the following about aggravated damages at [86]-[87]: "86. In AA v PD [2022] NSWSC 1039 at [126]-[128] I said the following in relation to aggravated damages: [126] Aggravated damages are a form of general damages, given by way of compensation for injury to the plaintiff, which may be intangible, resulting from the circumstances and manner of the wrongdoing: State of New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57 at [31] (Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ). They are awarded for injury to the plaintiff's feelings caused by insult, humiliation and the like: Lamb v Cotogno (1987) 164 CLR 1 at 8 (Mason CJ, Brennan, Deane, Dawson and Gaudron JJ); [1987] HCA 47. That is, they are awarded when the harm done by the wrongful act was aggravated by the manner in which the act was done: Uren v John Fairfax (1966) 117 CLR 118; [1966] HCA 40; State of New South Wales v Abed [2014] NSWCA 419 at [231] (Gleeson JA, Bathurst CJ and Macfarlan JA agreeing). The entitlement to aggravated damages therefore turns upon establishment of these elements. The defendant's conduct [127] In order to secure an award of aggravated damages, typically (but not invariably) there must be "conscious wrongdoing in contumelious disregard of another's rights": Gray v Motor Accidents Commission (1998) 196 CLR 1; [1998] HCA 70 at [14] (Gleeson CJ, McHugh, Gummow and Hayne JJ). In State of NSW v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208 at [138] (Hodgson JA, Sheller JA and Nicholas J agreeing) ('Riley'), explained that whilst the presence of malice was not essential to ground an award of aggravated damages, and gave some guidance on the character of the defendant's wrongful conduct necessary to support such an award: "Conduct may be high-handed, outrageous, and show contempt for the rights of others, even if it is not malicious or even conscious wrong-doing. However, ordinarily conduct attracting exemplary damages will be of this general nature, and the conduct must be such that an award of compensatory damages does not sufficiently express the court's disapproval ..." Injury to feelings [128] As aggravated damages, like compensatory damages, are directed towards injury to (or hurt) feelings, the Court must take care not to "double-count". This is particularly relevant in a case whether the injury relied upon to justify an award of damages is psychiatric, rather than physical, injury. This means that, if a court has awarded damages for hurt feelings as part of ordinary compensatory damages, the award of aggravated damages must only be for the difference justified by this approach; that is, an award of so much as is necessary to bring the damages up to the upper end of the available range: Riley at [131]-[133] (Hodgson JA, Sheller JA and Nicholas J agreeing); State of New South Wales v Radford (2010) 79 NSWLR 327; [2010] NSWCA 276 at [95]-[96] (Sackville AJA, Beazley and Macfarlan JJA agreeing). 87. I am satisfied that the defendant's conduct is undoubtedly "conscious wrongdoing in contumelious disregard of the plaintiff's rights", and was in contempt of them. I am also satisfied that the abuse has caused injury to the plaintiff's feelings, including by the manner in which the acts were perpetrated upon him. I am, therefore, satisfied that the plaintiff is entitled to aggravated damages. Absent specific evidence directed to these matters, I have approached the matter on the basis that there has been an unspecified degree of injury to the plaintiff's feelings occasioned by the abuse (to be clear, above and beyond the injuries and disabilities for which compensatory damages have been awarded), and I have made due allowance for this in assessing the plaintiff's entitlement to general damages at the upper end of what I considered to be reasonably available – in line with the authorities that I have just mentioned." 1. I think the findings expressed by Chen J at [87] are equally applicable here and I have reached the same conclusion. I also adopt his Honour's approach to exemplary damages which he expressed in this way, at [91]: "I am satisfied that an award of exemplary damages is justified to fulfil the objectives of punishment, deterrence and condemnation, and for the disgraceful and reprehensible sexual abuse of a child: the sexual abuse of the plaintiff demonstrates a deliberate and outrageous disregard of his rights by the defendant, over an extended period of time. Here, in the circumstances, in order to eliminate the risk of overcompensation or double punishment, I have assessed a sum for compensatory (including aggravated) and exemplary damages." 1. Interest on $140,000 at 2% for 16 years is $44,800. 2. The plaintiff has claimed $50,000 for past economic loss, including interest, based, it would seem, on a rough buffer type assessment. There are some tax documents in Exhibit E. The plaintiff had a taxable income of $9,039 for the year ended 30 June 2019, $11,950 for the year ended 30 June 2020 and $30,611 for the year ended 30 June 2021. For the 2022 tax year, the taxable income was $26,963. There are no figures for the year ending 30 June 2023. 3. The plaintiff does not say in her statement when she began work but it seems to be after the Higher School Certificate in 2019. The above figures show a haphazard income history, but with the plaintiff now doing reasonably well at $1,000 net per week. She seems to be currently earning about $300 below average weekly earnings in New South Wales. 4. It may be that the $50,000 claimed by the plaintiff is modest. For example, if I were to allow her an average loss of $500 per week, the result would be $130,000. I would of course, have to take into account that she was starting out in employment in 2019 as a junior employee and would not have earned anything like average weekly earnings initially. 5. I will therefore accept the plaintiff's figure of $50,000 including interest. 6. For the future, the plaintiff has claimed $650 per week for 48 years, reduced by 15% for vicissitudes, producing a figure of $739,300. Alternatively, a buffer of $400,000 is claimed including interest. I am baffled by the interest claim for the future. 7. Dr Teoh's suggestion of future treatment for one or two years, as I have already observed, seems inconsistent with a lifelong incapacity. However, without delving into any degree of medical knowledge, it is well accepted that PTSD is an ongoing disability. This is at least consistent with Dr Teoh describing the PTSD as chronic. 8. I am going to adopt the buffer approach, but I do not think $400,000 is appropriate. I think it should be less and certainly not include interest. I will allow $300,000 which is roughly equivalent to $300 per week for 43 years on the 3% tables, and the usual deduction for vicissitudes. 9. The plaintiff is entitled to lost superannuation benefits on future economic loss, which at 14.63% is $43,890. 10. The plaintiff has claimed $20,000 for future out of pocket expenses. On Dr Teoh's assessment there is $6,500 for a psychologist, $4,200 for a psychiatrist and medication for two years. As I have said, I think treatment is likely to be required more than for the next 12 months so I will allow the amount claimed of $20,000. 11. A summary of the damages I have allowed is as follows: General damages including aggravated and exemplary damages $350,000.00 Interest on general damages $44,800.00 Past economic loss including interest $50,000.00 Future economic loss $300,000.00 Lost superannuation benefits $43,890.00 Future medical expenses $20,000.00 Total $808,690.00 1. I make the following orders: 1. Judgment for the plaintiff in the sum of $808,690. 2. The defendant is to pay the plaintiff's costs. 3. The parties have liberty to apply on three days' notice for any variation of the costs order. 4. The judgment is to be served on the defendant and on the trustee in bankruptcy within seven days of the date of these orders. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 May 2024