District Court New South Wales Medium Neutral Citation: Dupont v Lampion; Dupont by tutor Dupont v Lampion; Dupont by tutor Dupont v Lampion [2015] NSWDC 33 Hearing dates: 10 February 2015 Decision date: 10 February 2015 Jurisdiction: Civil Before: Gibson DCJ Decision: See paragraph 34 Catchwords: TORT - assessment of damages - father and two daughters commence proceedings for damages for sexual assault and nervous shock following sexual abuse by the defendant of the two daughters - general and aggravated compensatory damages sought - no issue of principle Legislation Cited: Civil Liability Act 2002 (NSW), s 3B(1) Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 4 Cases Cited: Cerutti v Crestside Pty Ltd [2014] QCA 33 Gray v Motor Accidents Commission (1998) 158 ALR 485 Hallam v Ross (No 2) [2012] QSC 407 Kelly v John Fairfax Pty Ltd (1987) 8 NSWLR 131 M v Nesbitt [2012] NSWDC 152 Mather v Smith [2014] QCA 65 State of New South Wales v Doherty [2011] NSWCA 225 Category: Principal judgment Parties: Plaintiff in 2014/246212: Justin Dupont Plaintiff in 2014/155143: Jenny Dupont by next friend Justin Dupont Plaintiff in 2014/155162: Josephine Dupont by next friend Justin Dupont Defendant: Karel Lampion Representation: Counsel: Plaintiffs: Mr J Sheller Defendant: Mr N Newton / Mr T Buterin Solicitors: Plaintiffs: Greg Walsh & Co Defendant: Conditsis & Associates Lawyers File Number(s): 2014/155143; 2014/155162; 2014/246212 Publication restriction: Pseudonyms have been used in order to anonymise the children and parties Judgment The nature of these proceedings 1. This is an assessment for damages for personal injury. Thee plaintiffs, a father and two of his daughters, bring proceedings for damages against the defendant for sexual assaults of the daughters. The defendant is the maternal grandfather of the children. 2. The claim brought by Josephine (born 23 June 2003) particularises seven occasions of sexual assault between 13 October and 1 December 2010. Josephine's injuries are particularised as severe nervous shock and depression, as well as loss of self-esteem. Her continuing disabilities are: 1. Severe depression consequent upon being sexually assaulted on many occasions over a lengthy period of time by her grandfather; 2. Loss of self esteem consequent upon being sexually assaulted by her grandfather; 3. Inability to participate in normal sporting and leisure activities due to severe depression, associated loss of confidence and self esteem; 4. Intrusive thoughts; 5. Interference with sleep consequent upon frequent intrusive recollections of being sexually assaulted by her grandfather; 6. Lack of confidence. 1. The claim brought by Jenny (born 24 July 2001) particularises three occasions of sexual assault between 14 October and 1 November 2010. The same particulars of injuries and disabilities are pleaded. 2. The claim by the children's father is brought under s 4 Law Reform (Miscellaneous Provisions) Act 1944 (NSW) and is based upon the severe nervous shock, anxiety and associated sequelae he suffered following the discovery of the defendant's sexual assault of his daughters. The following continuing disabilities are particularised: 1. Severe nervous shock; 2. Anxiety and associated sequelae; 3. Depression; 4. Inability to concentrate; 5. Gross interference with sleep; 6. Intrusive thoughts associated with the incident; 7. Loss of confidence and capacity to go about normal everyday activities; 8. Loss [of] enjoyment of life consequent upon the plaintiff's disabilities; 9. Living in a constant state of anxiety and pre-occupation of the impact of the sexual assaults upon his daughters. 1. Claims for domestic assistance and loss of income, referred to in the Statement of Particulars, have not been pursued. 2. The defendant was charged and arraigned on 17 November 2011, when he pleaded guilty to fifteen counts in full discharge of the indictment. On 21 June 2012 he was sentence to seven years imprisonment with a non-parole period of four years, being eligible to be released on parole on 24 May 2016. In the defence filed in these proceedings, he has admitted to the conduct but did not make any admissions in relation to damages. 3. The plaintiffs seek general damages and (in the case of the two children) aggravated compensatory damages. 4. Section 3B(1) Civil Liability Act 2002 (NSW) provides that the Act does not apply to intentional acts of sexual assault; damages are assessed according to common law principles (State of New South Wales v Doherty [2011] NSWCA 225). As the defendant has been convicted of criminal offences arising out of these assaults, the plaintiff has abandoned a claim for exemplary damages: Gray v Motor Accidents Commission (1998) 158 ALR 485. 5. Mr Dupont gave evidence but was not cross-examined. The two minor plaintiffs did not give evidence. The defendant neither attended nor sought to give, or tender, any evidence. Apart from some helpful submissions in relation to the claims for aggravated and exemplary damages, and some corrections to out of pocket expenses, counsel for the defendant made no submissions as to quantum. As a result of the way in which these proceedings have been conducted and defended, it is not necessary for me to set out, other than in general terms, the factual background for the claims brought. The circumstances leading to the disclosure of sexual assault 1. Mr Dupont grew up in a normal, happy family. He excelled at sport. After completing the Higher School Certificate he ran a café in Manly. He married Irene, one of four siblings, and went to live on the property owned by her father at Singleton. Irene's sister, Linda was married to Jeremy Lampion, the defendant's son. Jeremy Lampion was Mr Dupont's best friend as well as being Linda Lampion's husband. Both families had seven children, and enjoyed a close and loving relationship with each other, as well as with other family members; at the time of sentencing, the defendant had a total of 22 grandchildren. 2. The defendant and his wife held two properties; one was in the defendant's sole name and the other in joint names. Most of the family members resided on the same large rural property upon which the male members of the family built the "Faith Walk Church", at which the defendant was the chief pastor, assisted by his wife. 3. There is little information about the defendant in the medical reports and evidence before me, not only because he has elected not to give evidence, but because Mr Dupont knows little about him. There is considerably more insight into the defendant's history and conduct from the careful analysis of facts set out in the sentencing judge's remarks, which are an annexure to the affidavit of Linda Lampion of 19 November 2014 (an exhibit in proceedings 2013/210388, but relied upon, at least in relation to this exhibit, by the plaintiffs in these proceedings). These remarks set out that the defendant, who was 63 at the time of sentencing, had been married for 43 of those 63 years. He, his wife and their four children lived for most of that time on an isolated country property where he ran a sheet metal working business. 4. I note, in relation to this history, that Dr Chris Rikard-Bell (Exhibit B, p. 56 - 7) considers there was "probably sexual abuse throughout the family", noting that the defendant was "very controlling and aggressive", while his wife, Mrs Tina Lampion, was "very quiet and meek". One of the defendant's other children claimed to have been sexually abused by an uncle, but no charges were laid. 5. Dr Rikard-Bell explains that the defendant was not only the minister of the family's strict religion, but "the boss" at the workshop; "he was in total control", Mr Dupont told Dr Rikard-Bell. The defendant and his wife were the only pastors of the church built on their property. The principal worshippers there were the defendant's extended family living on the property, whose children (including the minor children in these proceedings) were all home schooled. As they lived a strictly religious lifestyle based on the teachings of the defendant and his wife (Exhibit B, p. 21), the children grew up in a limited social circle of family members only; for example, they did not watch television, and Mr Dupont's own family was largely excluded (Exhibit B, p. 21 – 2). 6. In November 2010 Mr Dupont's eldest daughter told his wife that the children had decided they did not want to stay at their grandparents' home any more, as Jenny (then aged 9) had said that the defendant slept naked and had the girls in bed with him. He had had Jenny in bed with him and had put her hand on his penis even while his wife was in the same bed, "on numerous occasions". Josephine (then aged 7) had been assaulted "more often and in a more serious manner". 7. Mr Dupont told the court he felt as though he had been "hit by a cannon" by these disclosures. He and his wife went to the defendant's home and confronted him. Despite his trepidation in the context of his father-in-law's "overbearing" religious doctrine (Exhibit B, p. 23), he contacted police, although anonymously. Police ascertained that similar assault claims, over the same time period, were also made by Elise Lampion, one of the children of the defendant's son, Jeremy. The defendant was interviewed, charged and bailed. 8. From that time on, the defendant and his wife put pressure on both Mr Dupont and their son Jeremy, as well as their wives, for the charges to be dropped (Exhibit B, p. 23). According to the Victim Impact Statement of Elise Lampion (attached to the sentencing remarks) her father was under pressure because of this, and this was a factor in his committing suicide in front of his wife and children, by jumping from a moving car. 9. Mr Dupont gave evidence that the suicide of the defendant's son Jeremy Lampion had a "devastating" impact, not only on himself, but on the whole family. He and his wife went to live in Tasmania, but their marriage broke down. Mr Dupont made a serious suicide attempt. He decided to return to the Central Coast, where he and his wife, although still separated, share custody of their seven children. 10. All of those children were, and remain, deeply affected by these events, as Dr Rikard-Bell notes (Exhibit B, p. 93). The three eldest (including Jenny) engage in self-harm. Josephine, the principal victim of sexual abuse, suffers from the same post-traumatic stress syndrome and anxiety disorder as her sister. The youngest three suffer from other difficulties, including (in the case of Anna) a learning disorder. 11. Mrs Dupont is described by her husband as being very confused about her relationship with her father (Exhibit B, p. 89). All of the psychiatric evidence points to a constellation of future problems, particularly in the future, as the defendant will be released from gaol in 2016. 12. The defendant shows no insight into his wrongdoing. He repeatedly interrupted the sentencing judge to claim that the evidence was "lies"; as the preface to the sentencing remarks show, most of these interjections were not heard by the sentencing judge, but some were, and all his interjections have been recorded on the transcript. This provided some insight into the evidence Mr Dupont gave of the pressure he was under to agree to the charges being reduced or dropped entirely, with his wife threatening to kill herself if he did not agree. Mr Dupont told Dr Roberts (Exhibit B, p. 24) that the defendant blamed the devil for his behaviour, and said that a blood transfusion was the cause for his transgressions. The defendant also told Mr Dupont that the children had lied, which is consistent with his interjected remarks during his sentencing. Additionally, the defendant's wife is conflicted as to her loyalties; for example, when she sees the children, she has been in telephone contact with the defendant in gaol, and put the children on the phone to speak to him. 13. This is a family where the consequences of the defendant's wrongdoing have not only driven his son to suicide, but damaged the health and wellbeing of all family members, especially those the subject of these claims for damages. Having regard to the seriousness of the damage suffered by Mr Dupont and his two daughters, I accept the recommendations of Dr Rikard-Bell for four years of psychological therapy (48 sessions) as well as three sessions a year with a psychiatrist, who can advise as to diagnosis and medication for both children (Exhibit B, pp 63 and 93). 14. I also accept his advice as to the appropriate amount of treatment for Mr Dupont, an impressive witness who did not seek to embellish or exaggerate his evidence, or the events in question. Mr Dupont showed insight and sensitivity into the difficult issues of the future family relationships, and would be greatly assisted by professional support and therapy in achieving the peace of mind he so earnestly is seeking. Quantum of damages 1. The damages sought by each of the plaintiffs is as follows: 2. Insofar as it is appropriate to have regard to comparable awards, I note the award made in M v Nesbitt [2012] NSWDC 152. However, I have principally been guided by the submissions made on the components of the general damages claim by counsel for the plaintiff. Aggravated damages 1. Each of the minor plaintiffs claim aggravated damages to compensate for the additional harm resulting from the wrongdoing. This is not only the sense of betrayal and trust from a family member who was also the religious head of the family, but the manner in which he brought pressure to bear on family members, including the plaintiffs, to drop the charges, and the fact that more than one child was sexually assaulted by him, which magnified the distress level for each of the plaintiffs by reason of the impact on the family structure. 2. I accept that these are separate harms for which each of the plaintiffs should receive compensation. 3. Counsel for the plaintiffs initially claimed a single lump sum for double these amounts, representing aggravated and exemplary damages for the two claims brought by the victims of the abuse, and made no claim for interest on this sum. 4. As is noted above, the claim for exemplary damages has been withdrawn. Counsel for the defendant submitted that, in those circumstances, the sums claimed for aggravated compensatory damage should be reduced by half, which counsel for the plaintiff has agreed to. 5. Claims for aggravated and exemplary damages, which are made on different bases, should not be conflated. Additionally, while interest is not available on exemplary damages, it may be claimed in relation to the sum awarded for aggravated damages, although on a different basis, or for a shorter period: Mather v Smith [2014] QCA 65; the defendant in those proceedings appealed unsuccessfully from the award of interest on general damages from the date of commencement of the proceedings and the award of interest on aggravated compensatory damages from the date of the hearing. 6. The entitlement of a plaintiff to interest on general damages at common law is not in doubt. In Kelly v John Fairfax Pty Ltd (1987) 8 NSWLR 131 the NSW Court of Appeal, although not specifically referring to interest on the aggravated damages component, affirmed the availability of interest to a jury award where aggravated damages had been left for the jury to determine (at 135C). The principles for the award of interest in defamation proceedings generally have also recently been explained in Cerutti v Crestside Pty Ltd [2014] QCA 33, at [14] and [89]-[102]. For a recent example of an award of interest on aggravated damages, see Hallam v Ross (No 2) [2012] QSC 407 at [48]. 7. The approach I propose to take concerning interest on aggravated damages is that taken in Mather v Smith, namely to regard the appropriate starting date as the date of the hearing. As this is an ex tempore judgment, no award of interest need therefore be made. 8. For the reasons propounded by counsel for the plaintiff in his oral submissions, and noting that no submissions were made to the contrary, I am satisfied that the damages awards proposed by counsel for the plaintiffs are appropriate awards in the circumstances. 9. For the above reasons, on 10 February 2015 I entered judgment for each of the plaintiffs as set out in the orders below. The plaintiffs' application for freezing orders has been adjourned to enable the parties to prepare affidavit evidence. There is no need for interim orders as these orders are already in existence in relation to the judgment entered against the defendant in relation to another grandchild. Orders 1. I make the following orders: In relation to Justin Dupont (1) Judgment for the plaintiff for $88,400. (2) Defendant pay plaintiff's costs. (3) Matter stood over part heard to Wednesday 11 February 2015 at 2:00pm, for the making of further orders including freezing orders. In relation to Jenny Dupont (1) Judgment for the plaintiff for $150,100. (2) Defendant pay plaintiff's costs. (3) Pursuant to s 75-77 Civil Procedure Act 2005 (NSW), direct the damages awarded are to be paid to the NSW Trustee & Guardian for investment until the plaintiff's 18th birthday, with liberty to apply for payment of treatment expenses as and when payable. (4) Matter stood over part heard to Wednesday 11 February 2015 at 2:00pm, for the making of further orders including freezing orders. In relation to Josephine Dupont (1) Judgment for the plaintiff for $220,500. (2) Defendant pay plaintiff's costs. (3) Pursuant to s 75-77 Civil Procedure Act 2005 (NSW), direct the damages awarded are to be paid to the NSW Trustee & Guardian for investment until the plaintiff's 18th birthday, with liberty to apply for payment of treatment expenses as and when payable. (4) Matter stood over part heard to Wednesday 11 February 2015 at 2:00pm, for the making of further orders including freezing 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: 26 March 2015