Increasing Awards – Assessment of damages in historical sexual abuse cases

Summary of ZAB v ZWM [2021] TASSC 64

On 22 December 2021 the Supreme Court of Tasmania awarded damages of $5.3M to the victim of historical sexual abuse.

Background

The Plaintiff was sexually abused by his father, the Defendant at their family home between the ages of 10 and 15. In 2016 the Defendant pleaded guilty to criminal charges relating to his abuse of the Plaintiff and was incarcerated when the Plaintiff commenced his civil claim.  Initially the Defendant was legally represented but in June 2021 his solicitors ceased acting for him and he took no further part in the proceedings or the trial.

The Plaintiff’s claim was pursued on the basis of the physical assaults. He also claimed aggravated damages for harassment after he confronted the Defendant about the sexual abuse in 1999. 

In 1999 the Plaintiff confronted his father about the abuse and was subsequently ostracised from his family. The Plaintiff obtained an AVO against the Defendant in 2003 due to the Defendant’s continued harassment including letters and phone calls, turning up at his work and unpleasant comments online. When the AVO expired in 2005 the Plaintiff moved to Germany.

The Decision

The Court first considered whether the allegations of sexual assault could be established and contemplated the criminal charges brought against the Defendant and the tort of battery.  The Defendant admitted to touching the Plaintiff’s genitals on four occasions but argued that it was done in the discharge of his parental duties and with the Plaintiff’s consent.  The Defendant bore the onus of proving consent and as he did not appear or take part in the trial these allegations went unsupported and were ultimately rejected by the Court.   The Plaintiff succeeding in his claim against the Defendant.

Damages

The Plaintiff was abused between the ages of 10 and 15. The Court accepted the Plaintiff suffered complex PTSD and major depression and that these conditions interfered with his capacity to earn an income as a corporate lawyer.

The largest component of the award (approx. 80%) was for past and future economic loss.

The Plaintiff successfully argued that the abuse and the Defendant’s actions and harassment after 1999 had a negative effect on his overall career trajectory. The Plaintiff completed high school, a law degree and articles with a large firm in Melbourne. The Plaintiff aspired to a career in corporate law and work as in-house counsel.  Following the confrontation in 1999, the Plaintiff’s physiological condition deteriorated, and he could only manage part-time work as a lawyer.  When he moved to Germany in 2005 the Plaintiff’s legal qualifications were not recognised and his income significantly reduced as a result.  Since then the Plaintiff has moved between Germany and Australia, which has been characterised by unstable employment and significant periods of unemployment.  The Plaintiff was totally unfit for work at the time of the trial.

The Plaintiff relied on expert evidence from the director of a large legal recruitment agency, who concluded that the Plaintiff was extremely well placed to achieve a highly successful corporate law career in Melbourne within the IT or telecommunications sectors or other industries.  The Court adopted the lower range of expected earnings put forward by the Plaintiff’s expert, which was in the vicinity of $300,000 gross per annum for both the past and future periods.  For the future the Court allowed damages on the basis the Plaintiff would continue working for a further 19 years, discounted by 25% for retained earning capacity.

The Court also awarded aggravated damages due to the repeated breaches of trust by the Defendant in sexually abusing his son and his “unusually dreadful” conduct to the Plaintiff since the confrontation in 1999. In addition, the Court awarded interest on aggravated damages.

Implications

The Plaintiff was accepted as a credible witness who, the Court also accepted, had the potential to pursue a successful and lucrative career in commercial law. The Court acknowledged that the Defendant’s persistent harassment and poor behaviour towards the Plaintiff in the years following the abuse exacerbated the Plaintiff’s psychiatric symptoms, which in turn made it difficult for him to undertake full time and stable employment in Australia. In the absence of the Defendant’s continued harassment of the Plaintiff many years after the abuse and the great lengths he went to discredit the Plaintiff and harm his relationship with his family and career, the award for damages would likely have been reduced.

Another factor in this significant damage award was the fact the Defendant did not appear at trial and was without legal representation.  The Defendant relied on no expert evidence to reduce or counter the Plaintiff’s claim for damages, particularly economic loss.

It is unknown (but unlikely) the Defendant will be able to satisfy the significant award of damages made against him.

If you have any questions on this case note, please contact Partner Emily McKeowen.