By Grant Mitchell, Partner, Dillon Olliver, Senior Associate and Lily Dyson, Paralegal

Warning: This article contains descriptions of historical abuse, including references to physical, emotional, and sexual abuse. The content may be distressing or triggering for some readers. Please take care when reading, and consider whether this material is appropriate for you at this time.

Key Takeaway

Critically, given the very limited South Australian authority to draw upon in this jurisdiction and that the authority that does exist sits as an ‘outlier’ in contrast to comparable interstate decisions, the Supreme Court of South Australia deemed those interstate decisions provide ‘a more reliable guide as to what may accord with current ideas of fairness and moderation’ in relation to awards for the type of abuse featured in this case.

The implication for prospective respondents to historical abuse claims in South Australia moving forward is that they may face greater exposure in terms of quantum for non-economic loss than was the case previously.

Background

The applicant claimed damages against the respondents for trespass to the person (battery) and negligence.

The abuse commenced when the applicant was 15 years old and continued into young adulthood.

The abuse by the respondents resulted in a relationship of coercive control with the applicant, which led her to live with the respondents for several years, in isolation from her family.  This arrangement enabled the abuse (which also included verbal, physical and emotional abuse) to continue for an extended period.  In addition, while living with the respondents, the applicant was required to perform heavy chores (even while pregnant) and was housed in poor living conditions (in a caravan).

Decision

As the respondents failed to file defences in the proceedings, default judgment was entered against them and the matter therefore proceeded by way of an assessment of damages.

The applicant’s claim was limited to damages for:

1. non-economic loss (including interest);
2. future treatment; and
3. aggravated damages.

The Court accepted the opinion of the applicant’s psychiatric expert, Dr Jules Begg, and found that the applicant had developed a post-traumatic stress disorder and a mild depressive illness as a result of the abuse.

When considering the award for non-economic loss, the Court was drawn to a number of interstate decisions involving sexual abuse.  However, after research on authority in this topic in South Australia, the Court was only aware of one such reported case in South Australia – S, M v S, RK [2019] SADC 184.

The Court found that the amount awarded in S, M was ‘somewhat of an outlier’ in the context of the amounts awarded in the interstate cases.  The Court considered that difference in approach to possibly stem from the fact that in S, M, only 60% of the applicant’s psychiatric illness was attributable to the abuse suffered.  Further, it appeared that none of the interstate authorities referred to in the present matter were referred to the Court in S, M.

For those reasons, the Court considered the interstate decisions ‘to be a more reliable guide as to what may accord with current ideas of fairness and moderation in relation to awards for this type of abuse’.

Crucially, the Court referred to the decision of Doyle CJ in Ewins v BHP Billiton Ltd (2005) 91 SASR 303 in the context of the circumstances in which it is appropriate to revise an award of damages upwards from the prevailing level of awards in South Australia.

In line with Ewins, the Court noted that if there was a ‘prevailing line of authority in South Australia’ with respect to awards for psychiatric injury caused by abuse similar to that in the present matter, it would ‘be constrained to assess damages under this head in accordance with the level of those awards’.

The Court further noted that apart from S, M, it was ‘not aware of any other authority on this topic in South Australia, let alone a line of authority’ and so determined that it was appropriate to approach the assessment of damages for non-economic loss unconstrained from the previous level of damages awarded in South Australia for matters of this kind.

After making a very small discount as a result of a minor component of the applicant’s psychiatric injuries arising from an unrelated issue, the Court ultimately awarded her $400,000 for this head of damage, with $300,000 related to past general damages and $100,000 for future general damages.

The Court noted that the impacts on the applicant’s life had been profound and merited an award at the higher end of the scale, having regard to the following factors that emerged from analysis of the interstate decisions:

1. the applicants were mainly abused as children or for part of the time as children;
2. the abusers were usually in positions of authority/quasi-authority or were trusted/entitled to be trusted by the applicants;
3. the abuse generally occurred over a significant period of time;
4. the abuse was often sustained, regular and violent;
5. while quantum may widely vary, all of the awards were significant and usually for hundreds of thousands of dollars; and
6. the consequences of the abuse for the applicants in terms of their psychological health had been devastating.

For completeness, we note the Court awarded the following amounts for the remaining heads of damage:

• interest (non-economic loss) – $150,000;
• future treatment – $15,000; and
• aggravated damages – $40,000

The total damages awarded was therefore $605,000.