Assessing past economic loss on hypotheticals and similar fact evidence in civil cases: ZYX (pseudonym initials) v Cable [No 5] [2023] WADC 61

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By Rebecca Roberts, Partner, and Genevieve Barton, Law Graduate

Factual Background

District Court Judge Herron ruled former AFL Hall of Fame footballer Barry Cable sexually abused the plaintiff beginning in the late 1960s when the plaintiff was a young girl. The plaintiff, sought damages for psychological and psychiatric injury Mr Cable inflicted on her through repeated sexual abuse from the ages of 12 to 17, then for 17 years of her adult life. Herron DJC found that the defendant did engage in the child sex abuse and awarded the plaintiff a total of $818,700 for the psychiatric and psychological injury the plaintiff suffered as a result of the abuse. Criminal charges were never brought against the defendant.  Herron DJC provides some helpful insights in to calculating past economic loss and when to adduce similar fact evidence in civil proceedings.

Similar fact evidence in civil matters

Four lay witnesses gave evidence that the defendant sexually assaulted them as children, which the plaintiff submitted formed similar fact evidence. Herron DJC held he did not need to have regard to the similar fact evidence as he found the defendant did sexually abuse the plaintiff as a child without it. However, he went on to helpfully outline how to assess the admissibility of similar fact evidence sought to be adduced by the plaintiff in civil proceedings, similar fact evidence pursuant to s 31A of the Evidence Act 1906 (WA) only applies to criminal proceedings. Firstly, Herron DJC identified the fact in issue in which the evidence is said to be relevant. Here, the issue is whether the defendant sexually assaulted the plaintiff on multiple occasions when she was a child aged 13 to 17 from 1968 to 1972

Herron DJC assessed whether the other acts of sexual assault by the defendant against other girls when they were children in the 1980s and 1990s makes the occurrence of sexual assaults against the plaintiff in the years before more likely. The four other girls came into contact with the defendant in similar circumstances to the plaintiff, with the defendant being a neighbour/close family friend/family relationship. However, Herron DJC held the view that:

[453] The more remote in time the alleged propensity or tendency exists, the more difficult it is to maintain that the defendant would have acted in a similar way many years previously so that it makes it more likely he did the physical acts of sexual abuse as claimed.  Had the propensity or tendency existed at a point in time closer to when the plaintiff says the defendant sexually abused her the evidence may have been relevant by establishing a pattern of behaviour of sexually abusing young girls at a time contemporaneous to when the plaintiff says he sexually abused her, which would have made it more likely he sexually abused the plaintiff consistent with that pattern of behaviour.

While the similar fact evidence was not probative that the child sexual abuse occurred, Herron DJC was of the opinion it was “admissible in rebutting an explanation that it is implausible and not in the common experience of most people that a well-known and highly respected public figure, with an otherwise unblemished character, would sexually abuse a child of his neighbours whom he had befriended and who trusted him, not the least because of his public profile”.

Assessing Past Economic Loss

Herron DCJ made repeated comments on the difficulty of assessing the plaintiff’s past economic loss.

The plaintiff submitted that but/for the abuse, she would have qualified as a psychologist and worked full-time in this position earning up to $120,000.00 per annum, or in the alternative would have been able to earn what a tertiary educated West Australian woman would have earned between 1980 – 2021. The plaintiff relied on forensic accountant Mr Mark Thompson’s calculation of approximately $737,000. Herron DJC found Mr Thompson’s data to be outdated and that he did not have the expertise to draw conclusions from the data he sourced for his report. Herron DJC also said the following about Mr Thompson’s report:

[653] He seems to have assumed, as do the plaintiff’s solicitors, that because the plaintiff has suffered harm and been injured as a result of the child sexual abuse, it necessarily follows that she has suffered a loss of earning capacity.  The question is not whether the plaintiff’s earning capacity has been enhanced because of the harm she has suffered as a result of the child sexual abuse.  Rather, the question is whether the harm she has suffered has caused her to suffer a loss of earning capacity which is productive of financial loss which entitles her to damages.

Herron DJC held that the evidence did not suggest the plaintiff would have qualified and worked as a psychologist had she not suffered psychologically from the sexual abuse. Furthermore, there was little supporting evidence put forward by the plaintiff for her completing a tertiary qualification straight from high school. However, he accepted her mental health conditions as a result of the child sex abuse would have likely reduced and restricted the plaintiff’s capacity to study and obtain some tertiary qualifications, which in turn may have curtailed her working career.

He was satisfied the plaintiff had a diminution of her earning capacity because of the harm she suffered, which resulted in her suffering some financial loss as she had been unable to work to her fullest due to her psychological and psychiatric harm, concluding as follows:

[684] … I am required to do my best to place a valuation on the plaintiff’s reduced earning capacity throughout her working life, in circumstances where I am not persuaded the evidence establishes the plaintiff had the capacity to earn income as a fully employed psychologist throughout her working life, as she claims.

[685] Doing the best I can, I award the plaintiff $400,000 for past loss of earnings which includes loss of superannuation entitlements.  That award approximates an assessment on the basis that the measure of the plaintiff’s loss of earning capacity is one day a week since she commenced her business in 1993 to August 2021 when she reached the age of 66.  The award also incorporates an allowance, which is not specifically calculated, for loss of superannuation benefits.

This case provides insight as to how Courts will consider similar fact evidence in civil cases in Western Australia, noting the timing of the similar fact evidence is very important. It also demonstrates how a Court assesses economic loss in respect to psychological harm claims and the importance of experts remaining within their field of expertise.

For further information, please do not hesitate to contact us.

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