Canberran awarded $762,023 in damages for historical sexual abuse: ND v AB [2022] ACTSC 197
On 3 August 2022, the ACT Supreme Court handed down a decision considering the assessment of damages in historical abuse matters. In ND v AB [2022] ACTSC 197, the plaintiff was awarded a total of $762,023 for damages for sexual abuse committed by the defendant when she was a child in Canberra in the early 1980s.
The proceedings relate to the sexual assault of the plaintiff, known as “ND”, by the plaintiff’s uncle, known as “AB”, in approximately 1980 to 1981. The plaintiff suffered repeated sexual, physical and emotional abuse perpetrated by the defendant on about a weekly basis. This abuse commenced when the plaintiff as in Year 5 at about the age of 11 and continued into Year 6. The plaintiff estimates that this abuse occurred on more than 20 occasions.
After being found guilty by a jury on 6 December 2019, the plaintiff brought a claim against the defendant in assault, battery and negligence and claimed past and future economic loss, out-of-pocket expenses, past and future domestic assistance and aggravated damages. A default judgment was entered in favour of the plaintiff by McCallum CJ on 14 April 2022 after the defendant failed to enter a defence (ND v AB (No 2) [2022] ACTSC 100).
The matter for determination by Mossop J in the most recent proceedings was therefore the assessment of damages. At Paragraph 68 of the judgment, he states:
Plainly enough, the assessment of damages must take into account the immediate experience and effects of the abuse itself. However, more significant are the long-term consequences of that abuse upon the plaintiff’s mental state, her personality structure and her relationships throughout her life. That involves consideration the counterfactual situation in which she was not abused.
In regard to general damages, Mossop J reflected upon the severity and extent of the abuse, being an instance of at least 20 occasions of penile-oral penetration or digital penetration, together with the gross abuse of the family relationship. At Paragraph 70, he states that this is the kind of sexual abuse which ‘may readily be accepted would cause very significant long-term consequences for the child’. These consequences, Mossop J continues, have manifested themselves in the form of anxiety, panic and depression, as well as in the plaintiff’s difficulty with family and sexual relationships, a damaged sense of self, self-consciousness and a perceived lack of self-worth. Combined with the defendant’s instruction of secrecy and his manipulation of the young plaintiff’s desire to protect her cousins, Mossop J held that an appropriate award of general damages in this case was $240,000 including aggravated damages. The interest on the past component of general damages was $117,342.
In drawing this conclusion, Mossop J did consider various other challenges the plaintiff had faced in her life which may have contributed to her psychological injury. These included the separation of her parents, the lack of contact with her father, and the failure of various businesses, all of which cannot be causally attributed to the sexual assaults. However, in reliance of the evidence provided by Associate Professor Quadrio, Mossop J concluded that in addressing challenges in life, the plaintiff was likely to have been impeded by the long-term psychological consequences of serious sexual abuse at her young age, and as such the amount was not reduced (at [71]).
In relation to economic loss, the plaintiff submitted that had it not been for the abuse then it is likely that she would have had a greater degree of stability in her employment history. However, Mossop J also considered how the plaintiff’s working life involved disruptions caused by work injuries and child raising, as well as business failures which cannot be directly tied to the sexual abuse. Nevertheless, the evidence of the plaintiff and Dr Quadrio establish conditions which are likely to have reduced the plaintiff’s earning capacity. As a result, Mossop J held that it was only possible to address the question of past and future economic loss at a high level of generality, and he awarded the plaintiff $200,000 for past economic loss and $150,000 for future economic loss.
The plaintiff was also awarded damages for domestic care in the amount of $19,150 and out-of-pocket expenses in the amount of $35,531 in consideration of the regime of psychological or psychiatric treatment suggested by Dr Quadrio.
If you would like to read the judgment yourself, you can access the case here: ND v AB (No 3) – ACT Supreme Court
