Our heroine was a young girl (we will call her Pam) who suffered terrible abuse in the early 1990’s by her uncle when she was a child of 6 or 7. After suffering the final humiliation by her abuser forcing his penis in her throat causing her to choke and laughing at her, Pam finally raised the alarm with her parents and alerted the police. This ended the abuse she endured at the hands of her abuser however it was only the beginning of a life of suffering and survival where the trajectory of her life was changed indelibly and forever.
In 2021, Pam filed a claim for battery and damages for psychiatric injury against her abuser. He failed to respond and made no effort to defend the claim against him despite having the opportunity to do so. A default judgment was made by Judge Palmer of the District Court of WA and the facts of Pam’s claim were deemed admitted. However, it was not the end of the matter, her abuser’s failure to challenge simply meant that her abuser was liable to her but not liable for the amount of damages as this had to be assessed by the judge.
It was up to learned Judge Palmer to decide whether he believed Pam’s story. He tested her evidence and found that Pam gave a truthful and reliable account of the harrowing events of the sexual abuse recognising her distress and overwhelm as she gave her evidence most bravely at the trial.
He was ultimately persuaded to the requisite standard that the sexual abuse occurred as Pam had described.
Judge Palmer also accepted the medical evidence of her long time GP Dr Gary Wilson who had treated her in her teenage years and psychiatrist, Dr Felicity Sewell, both confirming the uncle’s abuse had caused the psychiatric injuries Pam suffered which detrimentally impacted on her life.
Pam experienced difficulties at school, turned to substance abuse, experienced difficulties with intimacy in her marriage, difficulties forming meaningful friendships and trusting people. She felt worthless. The abuse affected her ability to mentally and physically cope with working and caused her to permanently cease working.
Our Judge accepted the evidence of the financial accountant who assessed her loss of earnings. He formed the conclusion that Pam did suffer a loss of earning capacity as a result of the abuse and said abuse was responsible for her incapacity for work in the past and for the remainder of her life.
Judge Palmer was required to make the difficult assessment of deciding hypothetically what would have been Pam’s earning capabilities had she not been sexually abused; an assessment that depended on all manner of possibilities (Malec v Hutton). His enquiry made more difficult as the abuse had occurred when Pam was a child so there was no career or established work history before the abuse occurred that might otherwise provided clearer guidance.
While he questioned some of the enquiries made by the financial accountant with respect to calculating the earnings of a qualified teacher our judge accepted the alternative scenario that it was appropriate to assess Pam’s damages on the basis that if it were not for the abuse she would have at least completed high school to Year 12. Further, she would have maintained stable employment like her sisters, who were both teachers, and earned average earnings for a person who left high school at Year 12.
Judge Palmer referred to Lawrence and Cable and interstate cases to help him decide what damages Pam should receive for her injuries and loss of amenities in life. He ultimately determined an award of $300,000 as appropriate.
Although exemplary damages was claimed Judge Palmer noted it was rarely allowed and considered that exemplary damages focused on the wrong doings of the perpetrator, not the wronged individual; it was to make an example, to punish and deter however since Pam’s abuser had already served a custodial sentence for abusing Pam there was no occasion to award it. Equally, aggravated damages which are compensatory in nature was claimed for injury to Pam’s feelings caused by insult, humiliation and the like however this was accounted for in the general damages award.
Finally, Judge Palmer considered Pam was entitled to interest on her past loss of earnings and past lost superannuation in line with the approach by Herron DCJ in Lawrence (Court of Appeal) applying a refinement on the rough and ready approach and calculating a half rate during the period for which her loss was accruing (3%) and then at the full rate after the loss had ceased to accrue (6%). Judge Palmer considered that Pam’s loss has continued to accrue and therefore a 3% interest was applied annually for 21 years and 6% on her future loss of earning capacity over a period of 27 years (until retirement age).
Pam, our courageous survivor received a little over $2.4 million in damages for her pain and suffering, her past and future loss of earning capacity and future medical expenses.
While she would have received some comfort in this win it could never restore her sense of wellbeing and safety in the world and we can only hope that such courage and bravery can be inspired in others to come forward.
At Chamberlains Law firm we give our client’s the opportunity to explore what their claim might be worth. Our aim is to achieve an acknowledgement of the wrongs committed against our survivors and financial settlement through civil abuse action in the courts that meets our client’s individual circumstances. There is no perfect settlement and there are never guarantees in litigation but we will fight hard to ensure we get the best outcome we can for you so that you get to be the hero or heroine in your story.
This article was prepared with the assistance of Keziah Holdsworth*
If you have any questions or concerns please contact our Abuse Compensation Director Jon May on 02 6188 3600