Hammond, Tim --- "Damages for survivors of institutional child sexual abuse" [2019] PrecedentAULA 25; (2019) 151 Precedent 44

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DAMAGES FOR SURVIVORS OF INSTITUTIONAL CHILD SEXUAL ABUSE

By Tim Hammond

It is almost trite to say that assessments of compensatory damages in Australian common law jurisdictions are designed to put an injured plaintiff back in the position they would otherwise be in – but for their injuries, loss or damage.

The litigation landscape relating to the assessment of damages for institutional survivors of child sexual abuse is in some ways similar. But in other respects, assessing damages in these cases have the potential to play out in a slightly different way.

What follows is a brief summary of the relevant principles relating to an assessment of damages for common law claims from a Western Australian perspective, subsequent to the amendments of the Civil Liability Act 2002 (WA) and the Limitation Act 2005 (WA).

Recent amendments to both pieces of legislation provide for the ability of those who have been injured or traumatised as a result of childhood sexual abuse to be able to bring an action against the perpetrators of that abuse, particularly in the context of a setting where that abuse has occurred in the confines of an institution and/or educational environment.

Broadly speaking, the changes to the legislation mean that institutions (and in particular religious institutions) can no longer rely upon a defence commonly known as the ‘Ellis’ defence to assert that a particular archdiocese does not owe a duty of care to a survivor of child sexual abuse.^[1]

The change to the Western Australian legislation is not unprecedented. Similar changes to legislation in Queensland, New South Wales and Victoria have allowed survivors of institutional child sexual abuse to bring common law claims in negligence and other torts for the damage inflicted by perpetrators of child sexual abuse.^[2] However, all jurisdictions have some nuances in their legislation and practitioners are encouraged to review their own legislation with close scrutiny, particularly in terms of the injury and damage that is actionable under the new legislation.

BEFORE DAMAGES – OBTAINING LEAVE TO PROCEED

While this article concerns damages, practitioners ought to be conscious of the steps that may need to be taken beforehand, particularly in relation to claims that have previously been settled. In those cases, it is likely that leave of the court to commence an action will be required.

The WA amendments to the Limitation Act 2005 (WA) have meant that claims for survivors of child sexual abuse are no longer subject to a limitation period that applies to them.^[3] However, the absence of a limitation period does not necessarily mean an automatic green light for any particular prospective plaintiff.

In many respects, plaintiffs have previously been in a situation where they have chosen to accept (usually very modest) lump sums from the perpetrators or the relevant and responsible entities of those who committed the sexual abuse.

While those sums may pale in comparison to what those survivors may otherwise be entitled to receive by way of common law damages, it must be remembered that the power imbalance in these situations was enormous: small lump sums were mostly offered with agreements to release potential defendants from all future litigation. Past settlement amounts were often accepted in the context where the plaintiffs had no rights and their ability to bring a claim had long since passed pursuant to relevant section limitations, notwithstanding the (often insurmountable) challenges presented by proceeding with a common law claim.

In many respects, the existence of any previous deeds of settlement – which often contain clauses that release a religious institution from further suit – will mean that before proceeding with a common law claim, the deed will need to be set aside pursuant to s92(2) of the Limitation Act 2005 (WA). The factors which a court will take into account in deciding whether it is just and reasonable to set aside a previous settlement agreement still constitute a relatively untested environment.

However, there is some recent guidance as to the principles that are likely to be applied in these cases. In the District Court of WA, the Chief Judge’s decision in JAS v The Trustees of the Christian Brothers & Anor^[4] has given some indication as to what factors the court will take into account when assessing whether it is just and reasonable to set aside a previous settlement agreement so that the survivor of child sexual abuse can be placed in the same position as a plaintiff who has not entered into a previous settlement agreement, for whatever reason that may be.

DAMAGES

On the basis that a particular plaintiff is able to commence a proceeding against a perpetrator of institutional child sexual abuse, there are a number of nuances and likely areas of debate in relation to an assessment of damages, which to the author’s mind are not yet settled.

The first issue to consider is the extent to which the damage suffered by a plaintiff can be seen to be the result of ‘child sexual abuse’. The traumatic and sad reality is that for many survivors of institutional child sexual abuse, part of the lived experience of growing up in an institution, particularly back in the 1940s, 50s or 60s is that ongoing and unrelenting physical abuse was part and parcel of one’s existence in an institution. It is important for practitioners to be aware that in the many jurisdictions, a proceeding can be brought only for damage that is the result of child sexual abuse as opposed to physical abuse per se.

While in the author’s view the overall common law principles ought to apply in relation to that assessment of damages (that is, the eggshell skull rule, where one is obliged to take a plaintiff as one finds them), it is likely that the extent to which any psychiatric trauma is caused or contributed to by physical abuse – as opposed to child sexual abuse – will be an issue raised in defence of these claims if only to seek to try and distinguish the loss and damage that is suffered as a result of physical abuse compared with child sexual abuse. In the author’s view, such a situation is analogous to the authorities which seek to attribute the cause for ongoing loss and damage to non-tortious related factors (See Purkess v Crittenden^[5] and Watts v Rake^[6]).

Notwithstanding the legislative nuance around the potential demarcation relating to the type of harm we are talking about, it is submitted that some of the other substantive issues in relation to damages that require consideration are as follows:

(1) Having regard to the nature and extent of the child sexual abuse, what is an appropriate sum of compensatory damages to be awarded?

(2) Does the conduct of the respective tortfeasor amount to conduct that demonstrated such a contumelious and conscious disregard for the plaintiff’s rights so as to award aggravated, exemplary or punitive damages?

(3) By virtue of the operation of s15K of the Civil Liability Act 2002 (WA), what amount (if any) should be deducted from a plaintiff’s award of damages as a result of previous payments received by the plaintiff?

Compensatory damages

The overall objective and fundamental principle of compensation means that the damages to be recovered are in money terms no more and no less than the plaintiff’s actual loss: Livingstone v Rawyards Coal Co.^[7] This principle was reinforced in of Todorovic v Waller^[8] per Stephen J: ‘While there may be no one exclusive method of assessment appropriate to every circumstance there is but one criterion by which the adequacy of any particular method may be judged; it is whether or not the result of the assessment fairly makes good the financial loss incurred.’^[9]

Damages are ‘to be awarded so as to place the plaintiff as far as possible in the same position as if the defendant had not committed the actionable wrong’: Amaca Pty Ltd v Latz.^[10]

Damages in cases such as these in WA are to be assessed in accordance with ordinary common law principles; the restrictions as to damages as otherwise prescribed by the Civil Liability Act 2002 (WA) do not apply.^[11]

The starting point, therefore, requires an assessment of the plaintiff’s position as a consequence of their injuries.

Child sexual abuse has the potential to wreak a profoundly damaging effect upon all aspects of the life of a survivor of such abuse. In many respects, plaintiffs carry the emotional damage and trauma with them all their lives. The sexual abuse and consequent damage often results in poor mental health, suicide attempts, severely compromised relationships, bouts of imprisonment, sporadic and dissatisfying work, drug and alcohol abuse and associated health conditions.

As was revealed in the Royal Commission into Institutional Responses to Child Sexual Abuse, institutional child sexual abuse often involved the exploitation of vulnerable of plaintiffs (often wards of the state without any adult outside the institution to turn to) by those who were not only in a position of trust, but who were also widely respected by the broader community.

Accordingly, the impact of the trauma experienced by survivors of child sexual abuse plays across the spectrum of conventional heads of damage.

Given that we are generally dealing with matters involving psychiatric injury, and often in an historical setting, the relevant heads of damage that one would usually expect to apply in these cases are:

• general damages, that is, damages for pain and suffering, loss of enjoyment of life;

• past (and where relevant, future) loss of earning capacity (which includes loss of earnings, loss of superannuation and interest on past losses); and

• past and future medical treatment.

General damages

In relation to general damages, it is permissible for a court to ‘refer to earlier decisions of that or other courts for the purpose of establishing the appropriate award in the proceedings’: see s10A of the Civil Liability Act 2002 (WA).^[12]

Given that in many states, litigation of this kind is relatively recent, it is entirely appropriate in the author’s view to draw guidance from similar types of cases that have run to judgment or verdict in other jurisdictions.

In Hand v Morris & Anor,^[13] a 51-year-old plaintiff who was sexually abused by his teacher at nine years of age and sustained psychiatric injury in the form of an anxiety disorder was awarded general damages assessed at $260,000.00.

In Erlich v Leifer & Anor,^[14] a 28-year-old plaintiff who was sexually abused at her school by her teacher when she was about 15 and sustained psychiatric injury received an award of general damages assessed at $300,000.00.

In TB and DC v State of New South Wales v Quinn,^[15] two sisters in their 40s who were sexually abused by their stepfather and suffered psychiatric illness were awarded general damages assessed at $377,500.00 and $269,000.00 respectively.

Economic loss

For elderly plaintiffs who bring claims for child sexual abuse, in relation to economic loss, it is not necessary and indeed not possible to make a finding as to the specific career path a plaintiff would have followed if she/he had not suffered psychiatric injury. The issue is the economic value of their lost earning capacity had plaintiffs had the opportunity to exercise it: see Medlin v State Government Insurance Commission.^[16] In Medlin, McHugh J (with whom Deane, Dawson, Toohey and Gaudron JJ agreed) said:

‘In Australia, a plaintiff is compensated for loss of earning capacity, not loss of earnings ... Earning capacity is an intangible asset. Its value depends on what it is capable of producing. Earnings are evidence of the value of earning capacity but they are not synonymous with its value. When loss of earnings rather than loss of capacity to earn is the criterion, the natural tendency is to compare the plaintiff's pre-accident and post-accident earnings. This sometimes means that no attention is paid to that part of the plaintiff's capacity to earn that was not exploited before the accident’.^[17]

There is acknowledged difficulty in these cases where plaintiffs are injured as children. An appropriate approach – also adopted by other courts – can be to assess the plaintiff’s economic losses by reference to average weekly earning figures.

In B v Reineker,^[18] which concerned sexual abuse at a religious school by a school teacher of a female student, Her Honour ruled in relation to the loss of earning issue (adopting average weekly earnings):

‘I accept that the plaintiff’s capacity to earn has been affected by the depression and post-traumatic stress disorder that she has suffered as a result of the defendant’s trespass. Mr Lakeman submitted that it would be reasonable to calculate her loss for the past and the future by compensating her for the disparity between what she actually earned and average weekly earnings (AWE) for females in New South Wales. Although this is a somewhat crude measure, I accept that it is generally appropriate in the circumstances of this case to assess damages in this way. No greater precision is possible in circumstances where the torts were committed when the plaintiff was relatively young and before her uninjured potential was revealed.’^[19]

See also TB v State of New South Wales and Quinn; DC v State of New South Wales and Quinn.^[20]

Noting the observations of the High Court in Malec v Hutton,^[21] in that ‘the ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history’, it is submitted that in many situations a comparison with average weekly earnings may be the best fit in attempting to ascertain an appropriate range of damages to be awarded in these cases.

Exemplary damages

Exemplary damages may be awarded for conduct that involves a deliberate, intentional or reckless disregard for the plaintiff’s interests: Midalco Pty Ltd v Rebenault.^[22] An award of exemplary damages for victims of child sexual abuse in similar cases to the plaintiff is not novel; see Erlich v Leifer & Anor.^[23]

The trial judge in Erlich found the conduct of the school (the second defendant) as ‘deplorable’ and ‘disgraceful and contumelious behaviour demonstrating a complete disregard for (the first defendant’s) victims, of which the plaintiff was one. The conduct demonstrates a disdain for due process of criminal investigation’.

Section 15K of the Civil Liability Act 2002 (WA)

This section relates to the requirement for the court to set off previous payments received by the plaintiff in circumstances where they relate, or partly relate to her/his child sexual abuse. It is important for practitioners who are likely to find themselves practising in this area to inspect and review past deeds of settlement to ascertain precisely what the previous payment was intended to address. In cases where there is physical abuse as well as sexual abuse, it may be the case that it is not appropriate to deduct the entire amount, as that may serve to disproportionally reduce the quantum of the plaintiff’s claim.

CONCLUSION

Overall, an assessment of damages in relation to matters involving child sexual abuse is very much a case where the old may well meet the new. While one is fundamentally guided by long-established common law principles, it is impossible to ignore the implications of a legislative refinement on such an assessment in a circumstance where, in many cases, litigants who have suffered a profound and severe sexual trauma are only just now getting an opportunity to finally receive some recognition in the form of compensation (compensatory and also exemplary/aggravated) that will allow them the sense of closure that they have so often longed for, but never achieved.

It is also worth reflecting that such a regime has really only come about, in the author’s view, by the carriage of Parliament to enact a Royal Commission which finally shone a light on the criminal acts of those who were entrusted with the responsibility and care of vulnerable children, only to have abused it in the worst possible way.

Tim Hammond is a barrister at Central Law Chambers, Perth. PHONE [phone] EMAIL [e-mail].

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^[1] Trustees of The Roman Catholic Church v Ellis & Anor [2007] NSWCA 117 (24 May 2007).

^[2] In most cases, the changes were subsequent to recommendations arising out of the Royal Commission into Institutional Responses to Child Sexual Abuse. See <https://www.childabuseroyalcommission.gov.au/final-report>.

^[3] See Limitation Act 2005 (WA), s6A.

^[4] [2018] WADC 169, see [16]-[20] and [27].

^[5] [1965] HCA 34.

^[6] [1960] HCA 58.

^[7] [1880] UKHL 3; (1880) 5 APP CAS 25, 39.

^[8] [1981] HCA 72; (1981) 150 CLR 402.

^[9] Ibid, 427.

^[10] [2017] SASCFC 145, [56].

^[11] See s3A(1), table item 1(b).

^[12] It is specifically referred to at s3A(1) table item 1(b) of the Civil Liability Act 2002 (WA) as the only section in Parts 1A, 1C, 1CA, 1D, 1E and 2 that applies.

^[13] [2017] VSC 437 (11 August 2017).

^[14] [2015] VSC 499 (16 September 2015).

^[15] [2015] NSWSC 575.

^[16] (1995) 182 CLR 1.

^[17] Ibid, 16. See also Malec v Hutton (1990) 169 CLR 638 and Seltsam Pty Limited v Ghaleb [2005] NSWCA 208.

^[18] [2015] NSWSC 949 (20 July 2015).

^[19] Ibid, [64].

^[20] [2015] NSWSC 575, [211]-[226].

^[21] (1990) 169 CLR 638, 639.

^[22] [1989] VicRp 45; [1989] VR 461. See also Amaca Pty Ltd v Latz [2017] SASCFC 145, where an award of exemplary damages of $30,000 for a plaintiff suffering from mesothelioma as a result of cutting and installing asbestos fencing manufactured by James Hardie in 1976 was re-assessed by the South Australian Court of Appeal at $250,000 (see [226]-[228]).

^[23] [2015] VSC 499, [205]-[244].