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Justice Forbes of the Supreme Court of Victoria delivered the highest damages award to a survivor of sexual abuse in the Victorian jurisdiction

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Justice Forbes of the Supreme Court of Victoria has delivered the highest damages award to a survivor of sexual abuse in the Victorian jurisdiction

Victoria has undertaken significant legal reform to enable survivors of childhood sexual and physical abuse by a person associated with an organisation or institution to access compensation.  Case law in Victoria over the past 5 years has also continued to provide reference points for damages awards for lawyers operating in a changing legal landscape.

Previous recent judgments

In 2015, Justice Rush awarded $1M in damages to a 28 year old woman abused over an extended period by her school principal at an Orthodox Jewish School[1]. Of that, general damages of $300,000 was awarded.  This was in part due to the particular vulnerability of the Plaintiff who was still very young and had been admitted to a psychiatric hospital on 3 occasions.  She suffered with chronic depression (at times resulting in major depressive episodes), dissociation, suicidal tendencies and had a history of self-harm.  Economic loss damages were assessed at $550,000 and medical expenses of almost $200,000.  In addition, aggravated damages of $250,000 were awarded against the School ($100,000) and the former Principal ($150,000).

In 2017, Justice Zammit awarded $717,000 to a 51 year old man who had been sexually abused by his teacher when he was 8 (in 1974)[2].  The abuse occurred a couple of times a week in the classroom over the course of the year. The survivor experienced generalised anxiety disorder, at times crippling, with excessive worry about certain fears.  However, he was able to maintain his relationship with his wife (although there was distance in the marriage) and with his children.  He maintained employment for 34 years at Centrelink with the last 17 years of employment without progression, which Justice Zammit accepted related to the anxiety stemming from the abuse. Justice Zammit awarded $420,000 in economic loss damages, and $260,000 for general damages.

The present judgment

Last week, Justice Forbes awarded $1.55M to a 47 year old survivor of sexual abuse by his teacher which occurred in the classroom on six occasions over a period of a few months when he was 10 years old[3]. The expert psychiatrists both diagnosed the Plaintiff with complex Post Traumatic Stress Disorder and a chronic dysthymic/depressive disorder. There was some evidence of past Major Depressive Disorder and Polysubstance Abuse and Pathological Gambling.

Justice Forbes noted that ‘not meeting the aspirations one hopes to achieve in life is not necessarily a measure of the effects of sexual abuse. Nor would the fact of meeting aspirations negate an impact from abuse.’[4]

Taking into account the diagnoses and the impact of the injury on the Plaintiff’s enjoyment of life, Justice Forbes awarded $265,000 for general damages.

Much of the judgment is focussed on the assessment of economic loss damages; the Plaintiff worked in labouring and trade roles both within and separate to his family business. Justice Forbes held it was unreliable to measure lost capacity only by reference to the family business without reference to other possible avenues potentially available to the Plaintiff were it not for the abuse.  The ‘shape’ of any family business would be different were it supporting two brothers (rather than one) and other forms of income might have come from working for an employer, for others as a subcontractor, for himself or some combination.   She considered the bookends of assessments as a skilled tradesman staying ‘on the tools’ throughout his working life, or progression to a supervisory role.

Justice Forbes also noted the limitation of the exercise given there is no specific data for the earnings of self-employed tradespeople.

Justice Forbes applied a figure of $100,000 gross P/A for a bricklayer as a starting point to assess but for injury earnings of a skilled tradesman[5].  Whilst noting that the exercise of determining a fair reflection of lost capacity is not ‘a mere matter of mathematics’[6] she allowed a figure of $640,000 for past loss from 1990 to 2020, taking into account actual past earnings. She allowed $490,000 for future economic loss to age 67, allowing for a reduction in work taken on in the later years. Superannuation of $250,000 was allowed.

Application

The application of this judgment is somewhat constrained due to the exercise undertaken in overlaying the involvement in the family business, and the speculative or variable nature of self- employment.   It does however, continue to build on the body of cases which adopt a traditional assessment of economic loss damages for abuse survivors by comparison to industry or community/location based ‘average weekly earnings’ against actual earnings, and allowing some flexibility around the assumptions made.

Given survivors of abuse may not disclose their experience for many years, often decades, even notional allowances of past loss of earnings on a year on year basis can result in very high awards of damages.

This most recent case confirms the Victorian system is on a similar trend with increasing damages awards for historical abuse survivors as shown in other parts of the country.

Further, when compared with past settlements, it may serve somewhat as a present day barometer and encourage some survivors who have previously settled their cases to revisit those outcomes in Victoria[7].

If you wish to know more about these issues, please contact Ingrid Nunnink (ingrid@mmrb.com.au) or Tessa Pham (tessa@mmrb.com.au).

[1]  Erlich v Leifer & Anor [2015] VSC 499

[2] Hand v Morris & Anor [2017] VSC 437

[3] Perez v Reynolds & Anor [2020] VSC 537

[4] Ibid at [39]

[5] Relying on the reports of accountant Mark Thompson

[6] Per Amaca Pty Ltd v Latz (2018) 92 ALJR 579

[7] Per Division 5 of the Limitations of Actions Act 1958 (Vic); also note there is presently a Bill to extend further to more recent settlements than July 2015. If the Bill were to pass without variation it would extend to certain survivor settlements entered up to July 2018.

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