District Court New South Wales Medium Neutral Citation: M v Nesbitt [2012] NSWDC 152 Hearing dates: 7 June 2012 Decision date: 07 June 2012 Before: MURRELL SC DCJ Decision: Damages assessed Catchwords: Damages for sexual assault- aggravated damages- exemplary damages Legislation Cited: Civil Liability Act 2002, s 3B(1) Uniform Civil Procedure Rules 2005 Cases Cited: State of New South Wales v Doherty [2011] NSW CA 225 Gregory v State of New South Wales [2009] NSWSC 559 Lamb v Cotogno [1987] HCA 47 State of NSW v Zreika [2012] NSWCA 37 Category: Principal judgment Parties: M Mr Nisbett Representation: Foott Law & Co (plaintiff) No appearance (defendant) File Number(s): 2011/411862 Publication restriction: No publication of the name of the plaintiff or of any material that may tend to identify him. Judgment The Proceedings 1As a Year 8 - 9 boarding student at the Knox Grammar School (the school), the plaintiff was sexually assaulted by the defendant, who was a teacher and boarding master at the school. The assaults were intentional torts committed in breach of fiduciary duty. 2Pursuant to rule 10.14 of the Uniform Civil Procedure Rules 2005, the Court granted the plaintiff's application for an order for substituted service of the statement of claim by way of service at an e-mail address used by the defendant. The Court entered default judgement and listed the matter for the assessment of damages. 3The plaintiff asks the Court to assess compensatory, aggravated and exemplary damages. 4Under the UCPR, there appears to be no requirement to notify the defendant of the assessment hearing. In any event, on 14 May 2012, via the defendant's e-mail address, the plaintiff's solicitors notified him of the assessment hearing and provided him with the principal documents upon which the plaintiff intended to rely at the assessment hearing (affidavit of Joseph Fahey sworn 5 June 2012). The Events 5The plaintiff was a vulnerable young person. He was an only child. The plaintiff's parents separated when he was very young. He was raised by his mother, grandmother and aunt. However, he saw little of his mother. He had no relationship with his father. Unsurprisingly, he was a somewhat troubled boy. 6From 1975 to 1977, when he was about 13 to 16 years of age (Years 8 to 10), the plaintiff attended the school as a full-time boarder. The defendant was a teacher and boarding master at the school. He took an interest in the plaintiff, who came to see him as a father figure and a friend to whom he could turn to for comfort and support. When the plaintiff was in Years 8 and 9 (14 and 15 years of age), the defendant cuddled the plaintiff, behaved indecently towards the plaintiff and (on one occasion) had sexual intercourse with the plaintiff. The situation culminated when, after an encounter with the defendant, the plaintiff ran away from school. He ran in front of a train while being pursued by the headmaster. As a result, he was suspended. Thereafter, another teacher at the school took the plaintiff into his care and helped the plaintiff to achieve average to above-average results in his Year 10 School Certificate. After Year 10, the plaintiff left school. Thereafter, he lived an erratic lifestyle. 7In 2009, the plaintiff learned that the defendant and other former teachers at the school had been arrested on charges of sexual assault. He disclosed the assaults against him. Since 2009, a psychologist has counselled the plaintiff. In February 2012, the plaintiff and the school reached agreement regarding the payment of compensation. The Psychological Evidence 8The plaintiff is now 50 years old. He is married. He and his wife have one child and the plaintiff is a stepfather to his wife's other children. He has three children from a previous marriage. 9The plaintiff suffers from moderately severe post-traumatic stress disorder with mixed anxiety and depression. The condition is caused by the assaults. Since the assaults, the plaintiff has suffered from symptoms that include hyper-vigilance in public places, emotional lability, difficulties with concentration and memory, sleep disturbance, lethargy and lack of motivation. In the past, the plaintiff has been confused about his sexuality. As a young adult, he prostituted himself. There have been episodes of suicidal ideation. Following one such episode in 1997/1998, the plaintiff was treated as an outpatient at the James Fletcher Hospital, Newcastle. The most recent episode occurred in 2009. The evidence refers to the fact that the plaintiff has self-medicated with alcohol and drugs, but the Court has very limited information about that. 10Inferentially, the plaintiff has suffered from his present psychological condition since the assaults about 35 years ago. The condition is chronic and will affect the plaintiff for the rest of his life, although treatment may ameliorate the condition to some extent. The symptoms associated with the plaintiff's condition have caused ongoing misery and have markedly impaired the plaintiff's ability to function in all aspects of his life. 11Section 3B (1) of the Civil Liability Act 2002 provides that the Act does not apply to intentional acts of sexual assault or other sexual misconduct. The plaintiff's non - economic loss is to be assessed according to common law principles. The Court was referred to the decisions of State of New South Wales v Doherty [2011] NSWCA 225, and Gregory v State of New South Wales [2009] NSWSC 559 for the purpose of illustrating the appropriate level of awards for post-traumatic stress disorder when damages are assessed under the Act. 12Given the duration and severity of the plaintiff's psychological damages and the fact that his psychological impairment has impacted greatly on his enjoyment of almost every aspect of his life, the Court should award a very substantial sum by way of compensation for non-economic loss. Treatment 13Since mid-2009, the plaintiff has received psychological counselling about once a month. To date, the amount expended is $12,080. The estimated amount expended on prescribed medication (antidepressant medication etc) is $1000. 14The plaintiff will require a high level of psychological intervention for some years. In January 2011, his treating psychologist estimated that he would require such counselling for at least the next five years at $212 per hour. Occasional attendances at the plaintiff's general practitioner will be required. Currently, the plaintiff spends about $12 per month on medication in relation to his psychological condition. I will allow the sum of $9,900, being $212 x 42 months counselling plus an allowance for future medication. Economic Loss 15The plaintiff's employment history has been varied. It includes work as an apprentice refrigeration mechanic, auto electrician, and grazier/farm hand. From 1999 to 2009, the plaintiff ran a piggery. Because of orthopaedic disabilities, he had to sell the piggery when his sons left home and were no longer able to help him. 16The plaintiff suffers from orthopaedic disabilities arising from motor vehicle accidents in the 1980s. As a consequence, he cannot undertake manual work. His primary source of income is the disability support pension. In addition, he has some small investments. He can earn $15,002.94 without affecting his pension entitlement. 17Since 2009, the plaintiff has been unemployed. His treating psychologist describes future employment as "a remote possibility only achievable with the recommended psychological intervention and workplace support". 18In relation to past economic loss, the plaintiff claims $100,000. In addition, he claims $100,000 as a buffer in relation to future economic loss. 19The Court has no doubt that the plaintiff's psychological condition has significantly impaired his earning capacity. The associated fatigue and interference with the plaintiff's ability to concentrate must have affected his productivity and earnings at times when he was self-employed. These symptoms have prevented the plaintiff from pursuing tertiary studies and qualifications. The plaintiff was a person of average to above-average ability who had access to a good education. He has an interest in geology and accountancy. But for the assaults, it is probable that he would have pursued further education and increased his earning capacity. The sum of $100,000 that is claimed is a modest sum representing less than $4,000 per year for the period since the plaintiff left school. The Court will award that sum. 20In relation to future economic loss, the plaintiff claims a lump sum buffer of $100,000. The plaintiff has a future working life of 15 years (to 65 years of age). Because of his orthopaedic injuries and the disincentive of losing his disability pension, it is unlikely that, but for the assaults, he would have earned more than $15,000 per annum (including a small amount from investments). However, he could readily have earned such a sum. The sum of $100,000 that is claimed for future economic loss is modest and should be allowed. 21The sums awarded for economic loss take into account the loss of superannuation entitlement. Aggravated Damages 22The plaintiff claims aggravated damages to compensate him for the intangible harm resulting from the wrongdoing. The types of harm identified by the plaintiff include his sense of betrayal and abuse of trust, and feelings of indignity associated with the assaults. 23It is difficult to disassociate these harms from the psychological harm for which the plaintiff is to be compensated by the award for non-economic loss. However, I accept that there are some separate harms of the type identified for which the plaintiff should receive compensation. Exemplary Damages 24Exemplary damages are not compensatory in nature. They may be awarded for the purposes of punishment, general deterrence and to express the court's "detestation" of deliberate and disgraceful conduct: Lamb v Cotogno [1987] HCA 47, State of NSW v Zreika [2012] NSWCA 37 at [61]. After assessing compensatory damages, including aggravated damages, the court should consider whether exemplary damages should be awarded and, if so, the appropriate quantum of such damages: Zreika at [64]. 25In this case, the Court has decided to award substantial sums by way of compensatory damages. Nevertheless, the severity of the defendant's misconduct warrants a substantial award of exemplary damages as a punishment, general deterrent and to mark the Court's abhorrence of the defendant's actions. Damages Awarded Non economic loss $250,000 Interest- past non-economic loss $131,250 1.5% x 35 years Past economic loss $100,000 Future economic loss $100,000 Past out of pocket expenses $ 13,082 Future out of pocket expenses $ 9,900 Aggravated damages $ 25,000 Exemplary damages $ 50,000 Total $679,232 26In accordance with UCPR 42.1, the defendant is to pay the plaintiff's costs. ********** 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: 19 September 2012