'Unscrambling the egg' on psychiatric injury and apportionment between tortfeasors
15 September 2026
Background
The Plaintiff (ABC) was sexually assaulted after her Year 12 school formal in 2016. Following the assault, criminal charges were laid, the Plaintiff gave evidence and the offenders were convicted and sentenced to periods of imprisonment. The Plaintiff suffered significant psychological harm as a result of the offending.
During the criminal proceedings, one of the offenders and his brother attempted to coerce the Plaintiff into changing her evidence and falsely claim that the sexual activity had been consensual. They were subsequently convicted of attempting to pervert the course of justice and sentenced to periods of imprisonment. As a result of this campaign and threats, the Plaintiff changed her identity, moved house multiple times, stopped contacting family and friends and her relationship with her parents broke down.
The Plaintiff commenced civil proceedings in the NSW Supreme Court against the offenders who had assaulted her (the First and Second Defendants) alleging that the sexual assault caused significant physical and psychiatric injuries including post-traumatic stress disorder, anxiety and depression. The Plaintiff also commenced proceedings against the First Defendant and his brother (Third Defendant) alleging that the subsequent campaign to influence her evidence aggravated her condition and caused additional psychiatric harm. Only the Third Defendant participated in the hearing.
Decision
Justice McGuire accepted, on the balance of probabilities, that the First and Second Defendants had sexually assaulted the Plaintiff and that she suffered injury, loss and damage. His Honour also accepted that the First and Third Defendants had conspired to coerce the Plaintiff to change her evidence, that they intended to intimidate the Plaintiff and cause her psychological harm.
The Plaintiff argued that all three Defendants should be held jointly liable because the sexual assaults and subsequent intimidation campaign combined to produce a single, indivisible psychiatric injury. The Plaintiff submitted that it was impossible to 'unscramble the egg' and separate the psychological harm caused by the separate torts. In the alternative, the Plaintiff argued that the Defendants were concurrent tortfeasors whose separate conduct contributed to the same psychological damage suffered by the Plaintiff.
Although the Plaintiff's psychological injuries arose from the combined effect of the sexual assaults and conspiracy events, the Court held that the Defendants had engaged in different wrongful acts at different times. The First and Second Defendants were joint tortfeasors in relation to the sexual assault claim, and the First and Third Defendants were joint tortfeasors in relation to the conspiracy claims. However, the Second and Third Defendants were successive tortfeasors with each inflicting harm on the Plaintiff in separate events.
The question then remained whether the damage caused by the Defendants could be identified and assessed separately, with his Honour stating, 'a finding that a tortfeasor materially contributed to harm suffered does not inevitably lead to the conclusion that the tortfeasor is liable for all harm sustained'.
The Court did not agree that 'you can’t unscramble the egg' and instead said that the Court was required to do its best to determine the extent of the damage caused by the different torts. However, in this matter that was 'particularly challenging' as the expert medical evidence did not delineate how or to what extent each of the Plaintiff’s psychological disabilities related to each cause of action.
His Honour attempted to delineate the impact of each of the torts and determined that the sexual assaults and conspiracy contributed equally (ie 50/50) to the Plaintiff’s psychological injuries and loss. However, his Honour assessed general and aggravated damages for the sexual assaults at a higher amount due to the physical injuries associated with the assaults.
Both the sexual assaults and conspiracy claims were intentional acts done with the intent to cause injury. Pursuant to s 3B(1) of the Civil Liability Act 2002 (NSW) the provisions of the Civil Liability Act that restrict or modify damages did not apply and damages were assessed under the common law, which is typically more generous.
The Court assessed $1.16M in damages for the sexual assault claim (jointly against the First and Second Defendants) including $275,000 in general damages, and $1.06M for the conspiracy claim (jointly against the First and Third Defendants). The result was that the Court then awarded damages against the First Defendant (who was liable for both claims) in the sum of $1.1M, damages against the Second Defendant (who was liable for only the sexual assault claim) in the sum of $580,000 and damages against the Third Defendant (who was liable for only the conspiracy claim) in the sum of $530,000.
Implications and considerations
This decision demonstrates that a plaintiff may recover damages not only for the psychiatric injury arising from the original incident, but also for the additional psychological harm caused by subsequent events.
A defendant who seeks to establish that another event caused or contributed to a plaintiff’s psychological condition bears the onus of proof. Defendants should ensure that the medical experts they engage are properly briefed and asked to delineate the extent to which each diagnosis and disability relates to each event or causal factor. While the opinion of the expert is not binding on the court, it can be persuasive evidence that a court will consider in assessing damages against different tortfeasors.
The decision also reinforces that defendants who engage in witness intimidation, interfere with the administration of justice, or other misconduct may face independent civil liability for any additional psychiatric injuries and losses that flow from that conduct.
