Miles v Doyle (No 2) [2021] NSWSC 1312

The assessment of damages for historic abuse cases was considered in the recent NSW Supreme Court decision of Miles v Doyle (No 2) [2021] NSWSC 1312. The case highlights the importance of establishing causation in relation to abuse and economic loss, which can be particularly difficult in historic abuse matters where a victim may not develop a recognised psychiatric illness until many years after the actual assault.

In Miles v Doyle, the Plaintiff was abused as a teenager in 1985 by Philip William Doyle, former Kogarah cinema owner, who has been convicted of a series of historical sexual assault charges. The Plaintiff sought damages in the sum of $7 million for the long-term psychological problems he has suffered as a result of the abuse that he claims changed the course of his life entirely. The Plaintiff argued that, were it not for the abuse, he would had had a successful career in the military and then as a commercial pilot. In fact, the Plaintiff did attend Duntroon Military College after school, but he dropped out after only a few weeks. Subsequently his life has not developed in the way that he hoped it might and the Plaintiff is currently unable to work due to psychiatric injury.

In historic abuse matters, the plaintiff bears the onus and must establish the loss for which he or she seeks compensation and the causal connection between those losses and the assaults committed by a defendant. In other words, a plaintiff must establish causation and loss on the balance of probabilities. In Miles v Doyle, Judge Cavanagh held that the Plaintiff had been unable to establish this on the evidence before him.

This was a case where the Plaintiff did not develop any recognised psychiatric illness until many years after the abuse when he was compelled to relive and confront the events in criminal and civil proceedings. The Plaintiff had been unable to provide any medical records or reports for the period from 1987 to 2010 indicating that he had suffered from any psychological condition as a result of the abuse until this later date. Judge Cavanagh therefore did not accept that the Plaintiff’s military career come to an end as a result of the sexual assault, stating that ‘Causation is not established by establishing only that there is a possibility that the events would not have happened but for the tortfeasor’s conduct.‘ (at [191]). It was held that, in reality, the Plaintiff made other career choices that, on balance, were not related to the abuse perpetrated against him.

As a result, the Plaintiff received a total of just under $1.3 million, rather than the $7 million he had argued he was entitled to. This included a sum of $35,000 for aggravated damages. Whilst Judge Cavanagh held that the Plaintiff had developed a psychiatric injury only later in life, he considered that the Plaintiff had experienced distress, hurt feelings and shame throughout his whole life as a result of the abuse whereby an award of aggravated damages was justified.

If you would like to read the case yourself, click the link here https://www.caselaw.nsw.gov.au/decision/17c7c09f9206b886b6a5c354