Undefended damages assessment from the NSW District Court
14 June 2024
Walter (a pseudonym) v Alcorn [2024] NSWDC 216
A damages assessment was handed down by the District Court of NSW on Wednesday. Walter (a pseudonym) v Alcorn [2024] NSWDC 216 was conducted over two days, and the Defendant who had previously consented to a default judgment made no contribution to the hearing. At the conclusion of the two days of hearing Acting Judge Levy SC made an award of $1,021,300.
Background
The Plaintiff alleged a series of sexual assaults against him by the Defendant, John Alcorn, between 1991 and 1992, when the Plaintiff was aged between five and six years. The Defendant is presently serving an eight-year term of imprisonment for these offences and others he was found to have committed on further children. The Defendant had no part in the final hearing having consented to the default judgment previously.
The Plaintiff was described as having had learning difficulties and difficult family circumstances. He struggled with his schooling and left before completing Year 10. In adulthood he had a poor employment history, periods of incarceration in adult correctional institutions, and a series of admissions to drug and alcohol clinics.
The Plaintiff’s submissions as to damages were unchallenged and relied on a report of Psychiatrist, Dr Rikard-Bell. The Plaintiff’s injuries were diagnosed as including persistent depressive disorder, a dependent personality disorder with antisocial features and a substance abuse disorder. Dr Rikard-Bell found that the abuse had a significant impact on the development of the Plaintiff’s psychiatric condition and thus this finding informed the Judge's assessment.
Acting Judge Levy SC ultimately assessed damages as:
- General and aggravated damages - $400,000.00
- Interest on past general damages - $247,500
- Future medical and treatment expenses - $30,000.00
- Future economic loss and superannuation - $343,800.00
- Total = $1,021,300.00
Damages were assessed under the common law and accordingly were not subject to the caps and limits as contained within the Civil Liability Act 2002.
The award for general damages was no doubt partially impacted by the conduct of the Defendant during an AVL appearance in the matter. During that appearance, the Defendant (from prison), and in what the Judge described as a “final aggravating insult to the plaintiff” denied that he knew of the Plaintiff despite having consented to judgment against him.
While no claim was made for past economic loss the Judge noted that the Plaintiff’s periods of incarceration were arguable materially caused as a result of the sexual abuse. This contrasts with the generally adopted position that a defendant is not liable for a plaintiffs rational and voluntary decision to engage in criminal activity (State Rail Authority of NSW v Wiegold (1991) 25 NSWLR 500).
What we can expect next?
Given that the matter was not defended it is important to be careful about the value and significance of the dollars awarded but, at the same time, it can provide some guidance as to the potential assessment a Judge may give in a contested matter.
