The plaintiff, Ms Jessica Mirosevich, commenced proceedings by a Statement of Claim filed 23 February 2021. The plaintiff claims damages from the defendant, Mr Peter Laughlan.
The defendant filed a Notice of Appearance, however, did not file a Defence. The plaintiff filed a Notice of Motion, on 28 June 2021, for default judgment to be entered against the defendant. On 6 August 2021, default judgment for the plaintiff was entered with damages to be assessed at a later date.
This judgment assesses the damages that are to be awarded to the plaintiff against the defendant.
[2]
Facts
The plaintiff was born in December 1997. In 2007, the plaintiff's parents separated and she spent her time split between her mother's house and her father's house.
Her father has been married a further four times since he separated from the plaintiff's mother. The plaintiff experienced physical and domestic (but not sexual) abuse from her father and her various stepmothers. She gave examples of her father hitting her, being locked in a room to be hidden from other family members, being told she was an "embarrassment" and being deprived of food and sunlight over the five days she would spend at her father's home.
When this abuse was discovered by one of the plaintiff's primary school teachers, the plaintiff began to live only with her mother. Her father has since been diagnosed with Borderline Personality Disorder.
Around December 2007, the plaintiff's mother began a relationship with the defendant. In 2009, when the plaintiff was 11 years old, her family moved into the defendant's home. The defendant acted like a father figure to the plaintiff - he would watch her and her siblings' sporting commitments, spoil them, attend family functions and do other typically fatherly activities. This made the plaintiff feel like he was the father figure her life had been missing.
From 2009 until September 2014, over a six-year period, approximately three times a week, the defendant would sexually abuse the plaintiff. The conduct began with inappropriate touching while making the plaintiff hug the defendant before she left for school. From 2010, the plaintiff was an avid netballer and would often have sore muscles or injuries from her games. The defendant would offer to massage the plaintiff while she was in bed and, when thinking the plaintiff had fallen asleep, he would massage the plaintiff's breasts and bottom. The defendant would also digitally penetrate the plaintiff and would place his penis in the plaintiff's hand and move it back and forth.
On 22 October 2015, the plaintiff provided a statement to police at Raymond Terrace Police Station. The plaintiff was encouraged to do this after her younger sister came forward and reported that the defendant had abused her. After her younger sister did this, there was a significant fall out in their family as people did not want to believe her recollection of events as true. She now lives independently although, for a period of about six months in 2018/2019, she lived with her biological father.
On 2 September 2016, the defendant was sentenced in the District Court of NSW to a term of imprisonment for three counts of sexual assault in relation to the plaintiff. The defendant was sentenced to 11 years imprisonment expiring on 1 September 2027, with a non-parole period fixed which expires on 1 September 2023.
[3]
Damages
As mentioned above, the defendant filed a Notice of Appearance but did not file a Defence. Consequently, I am required only to undertake an assessment of damages. To aid this process, the plaintiff has provided written submissions and filed several affidavits.
The plaintiff claims damages for battery and trespass to her person, and negligence as set out in the Statement of Claim filed 23 February 2021 and Statement of Particulars filed 4 June 2021.
The provisions of s 3B(1)(a) of the Civil Liability Act 2002 ("the Act") , which are clearly applicable to this claim, mean that the Act does not apply to, nor in respect of civil liability and any awards of damage for an intentional act done by the defendant with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the defendant.
There are exceptions to this section, but they are inapplicable to the plaintiff's claims. Accordingly, in these proceedings, damages are to be assessed in accordance with the common law.
The plaintiff claims damages by way of general damages (including aggravated damages), past and future medical expenses, past and future economic loss, and exemplary damages. She also claims interest up to judgment on general damages.
The plaintiff suffered a variety of injuries and consequential disabilities caused by the abuse perpetrated by the defendant. It is convenient, as there is no contradictor, to merely summarise the evidence provided by the plaintiff and relevant medical professionals to understand the injuries suffered and their consequences. From the plaintiff's affidavit, it is plainly obvious, and I accept, that the abuse she suffered in her childhood was significant and has had a long‑lasting and detrimental effect on her life.
The plaintiff was a high achieving student who was ambitious and aspired to obtain a degree in social work and have a career as a social worker. However, as a result of the long-standing abuse she suffered, the plaintiff lost faith in herself and in her future. She found herself struggling to commit to her studies and to any future career path or strive towards anything. She attended all of her HSC exams, but was unable to complete them due to stress and the existence of such significant negative emotions. An average was taken from her marks throughout the year to enable her to graduate from her secondary school.
The plaintiff commenced her tertiary studies undertaking a course in social work. Despite being a once dedicated student, the plaintiff found herself unable to work hard at her studies and she saw no point in doing so as she fundamentally believed that anything she did achieve would somehow be taken away from her.
The plaintiff describes herself as once possessing a strong work ethic and the self-belief that she could excel at any position she worked in. She found that when she was busy at work, it would feel like a break from her "real life" and would provide a distraction to reflecting on her past. Despite this, the plaintiff changed jobs frequently as she felt bored and disinterested. She found the change in employment to be an attempt to "feel" something. Due to the inability to return to her tertiary studies, and the constant changing of employment, she remains concerned that this cycle will continue for the rest of her life - limiting her prospects of progression in the workforce. This concern exacerbates her feelings of stress and anxiety.
The plaintiff's ability to sleep has been severely affected and she has been an insomniac her entire teenage and adult life. Due to the abuse suffered, she feels unsafe in her bedroom. The plaintiff needs to have all doors and windows locked and to sleep with a lamp on every night so that, in the instant of waking up from a nightmare, she can be aware of her surroundings quickly and accordingly be reassured as to her safety. She is unable to have people stay the night as any movement or noise makes her feel like "her soul is leaving her body in fear". This has meant she cannot have housemates but, due to her fear of intruders, she is also unable to live alone.
The plaintiff suffers from frequent nightmares which involve dreams of a man pulling the quilt off her bed in an attempt to touch her. When this happens, she awakes screaming and crying and during the period when she lived with her biological father, he had to come in and comfort her until she could fall asleep. When she was living with her mother, the plaintiff would suffer from similar frequent nightmares.
The plaintiff's relationships and social life have suffered as a consequence of the abuse. She finds herself in unstable and unhealthy relationships, often with older emotionally unavailable men, and is anxious in social settings. Even tasks such as going for a walk or daily grocery shopping are difficult as they require the plaintiff to build up the confidence to leave her home.
The plaintiff has engaged in self-harm since she was 13 years old. Her first instance of self-harm was using a lighter to burn the inside of her arm, which felt painless and like a release of emotion. This self-harm has continued into her adult life but with less frequency. However, the plaintiff found that she would cover up her body to hide the scars of self-harming behaviour and would not want to go to the beach, pool or on holidays as it would involve wearing clothing which would reveal her scars. Between the ages of 13 years old and 18 years old the plaintiff describes herself as being "consistently suicidal". She was prescribed antidepressant medication. However, she took an overdose of that medication which resulted in her being in hospital for four days.
When the plaintiff was 20 years old, she had an unplanned pregnancy. She believed she had no option but to terminate the pregnancy after she had a vivid nightmare about her child being abused in a similar way to herself. Consequently, despite wanting children, the plaintiff believes she will never be capable of having a child as she could never trust someone enough to be sure they would not hurt her children.
In June 2018, the plaintiff was involved in a motor vehicle accident. The plaintiff had been at a nightclub and thought she could see and smell the defendant. This led to a hurried departure from the nightclub. She was having a post‑traumatic stress episode which caused her to essentially "black out" and the next thing she remembered was waking up to airbags crashing in her face because she had crashed her car. When police attended the scene, she mentioned the defendant's name and asked police to "get him away from her". Her insurance did not cover the cost of repairs to her car because she had high levels of alcohol in her blood at the time of the accident.
As part of those Court proceedings, the plaintiff was assessed by Ms Wakely, a forensic psychologist, on 2 October 2018 whose report was annexed to an affidavit in these proceedings for my assistance. Ms Wakely examined the plaintiff's symptoms of anxiety and depression using the Beck Depression Inventory. The plaintiff tested at the uppermost limits of the moderate to severe range for anxiety and within the severe range for depressive symptoms. Ms Wakely reported that the plaintiff's past and present stressors had a detrimental impact upon her self-esteem, and she suffered from feelings of hopelessness and worthlessness. Ms Wakely diagnosed the plaintiff with Complex Post Traumatic Stress Disorder ("PTSD"), depression and anxiety.
On 13 October 2020, the plaintiff was assessed by Dr Jungfer, a specialist psychiatrist. Dr Jungfer recorded that the plaintiff's background and developmental history, including that her father's family had mood related disorders, indicated a highly prejudicial family history. However, Dr Jungfer opined that the "genetic vulnerability" derived from the plaintiff's father's family history was not a significant contributing factor to her clinical presentation, except insofar as it was likely that the biological father's behaviour and family environment prior to the abuse from the defendant contributed to the plaintiff's Borderline Personality Disorder ("BPD"). She opined that the physical and domestic abuse the plaintiff suffered at the hands of her biological father was a minor contributing factor to her current psychological state. The major contributing factor was the repeated sexual abuse perpetrated by the defendant.
Dr Jungfer diagnosed the plaintiff with chronic PTSD and BPD. Dr Junger found that when considering the length of time that the plaintiff had been symptomatic, the lack of appropriate treatment and intervention and the guarded and phobic avoidance behaviour which she presented with, which would limit her ability to engage with treatment, her prognosis was considered to be poor.
[4]
General Damages and Aggravated Damages
The plaintiff is entitled to a significant award of general damages. In Ms P v Mr D [2020] NSWSC 224 Simpson AJ described general damages as including aggravated damages. At [124], her Honour said:
"[General damages] may, in appropriate circumstances, be augmented by a component representing compensation for 'injury to feelings, caused by insult, humiliation and the like': Lamb v Cotogno (1987) 164 CLR 1; [1987] HCA 47. Aggravated damages may be awarded to compensate a plaintiff where the wrongful act of the defendant was aggravated by the manner in which the act was done: Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; [1966] HCA 37; Gray v Motor Accidents Commission (1998) 196 CLR 1; [1998] HCA 70."
Cavanagh J in Miles v Doyle (No 2) [2021] NSWSC 1312 considered components of general damages for similar conduct in this way (at [54]):
"…provided that the Court accepts the causal relationship between the development of a psychological illness (at some time) and the assault, the allowance for pain and suffering may have regard to matters such as long term feelings of guilt, shame and emotional issues such as difficulties in maintaining relationships. Further, like any assessment of damages consequent on tortious conduct, the amount of the damages is not in some way measured against the gravity, severity or frequency of the assaults. Damages must be assessed having regard to the effect on the plaintiff."
The plaintiff is entitled to general damages towards the upper end of the aggregate range. She was subjected to repeated abuse from the age of 11 years old by someone who exploited the trusting and vulnerable nature of a child. The abuse occurred in the plaintiff's home and bedroom, where a child has the right to feel safe and secure. Moreover, the abuse occurred consistently for over six years. The debilitating impact of the abuse on the plaintiff's life is clear and significant. I am satisfied that the plaintiff has suffered over a lengthy period of time and without further treatment or intervention will continued to suffer indefinitely.
The plaintiff could not sleep without a light on for over 12 months; she cannot live alone or with housemates out of fear as to what might happen to her; she has not had an unbroken night of sleep for years; she has consistent night terrors; and the choice of having a family of her own (a choice which every person should be entitled to) has been taken away from her by the abuse inflicted by the defendant. The plaintiff struggles to choose an outfit for herself, catch public transport or enter venues alone due to her overwhelming anxiety.
I am satisfied that the plaintiff has suffered considerable injury and loss of enjoyment of life due to the actions of the defendant. Counsel for the plaintiff submitted several cases to aid my assessment of general damages, such as MC v Morris [2019] NSWSC 1326 and XY v Featherstone [2010] NSWSC 1366.
The plaintiff submits that a figure of $425,000 on account of general damages (including aggravated damages) is appropriate with $275,000 for past and $150,000 for future.
I consider there should be an award of general damages, including aggravated damages, in the sum of $400,000. I allocate $280,000 for past general damages and $120,000 for future damages.
[5]
Interest
The plaintiff submits interest should be calculated at 2% for the previous 12 years. I agree that this is an appropriate figure at common law, but interest should be calculated on one-half of the general damages amount for the past so as to, in a broad-brush way, compensate the plaintiff for the damages which have accumulated over time. I allow $33,600.
[6]
Past Expenses
The plaintiff submits that her past treatment costs should be covered by an award of damages in the amount of $9,540. I accept that the relevant past medical treatment was required as a result of the defendant's actions and these damages should be awarded. I allow $9,540 in damages for past medical expenses.
[7]
Future Expenses
Dr Jungfer suggests that the plaintiff will require substantial ongoing medical treatment. This consists of 50 sessions with a clinical psychologist at $254 per session. After 30 of those sessions, Dr Jungfer suggests there should be a reassessment as to whether the plaintiff will require more than those 50 sessions. Due to this, the plaintiff submits the costs for 70 sessions should be covered - which would total $17,780. I am satisfied that an appropriate amount of damages for future treatment by a clinical psychologist is $15,000.
The plaintiff will require antidepressant medication for 35 months at the cost of $50 per month - totalling $1,750. The plaintiff submits that a sum of $3,000 is suggested in the case of the medication being required long-term given the poor prognosis assessed by Dr Jungfer. I am satisfied that an appropriate allowance is $2,500 for future medication costs.
I allow $17,500 in total for future medical expenses.
[8]
Economic loss
The plaintiff submits that by way of past economic loss she should be compensated an amount of $50,000 for the difference in income which she could have been expected to have earned over the last 5 years, i.e., the time since she turned 18 and began working. But one has to take into account the fact that during some of this period, the plaintiff was, and would always have been, engaged in full-time study.
For future economic loss, the plaintiff submits that given her young age, the expectation that she would have worked to retirement age and promotion prospects, an amount by way of a buffer of $300,000 is appropriate.
It is difficult to make an accurate estimate when there has been no evidence provided by an accountant or someone in the relevant field to determine what a social worker would earn.
For past economic loss I allow $25,000 and for future economic loss I allow $300,000, making a total of $325,000 for economic loss.
[9]
Exemplary Damages
The plaintiff claims exemplary damages on the basis that the defendant has been punished for some of the abuse he inflicted on the plaintiff, but not all of it.
The plaintiff submits that the appropriate principle to guide the Court is found in Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70 is:
"not transgressed by an approach which permits some accounting of exemplary damages for conduct which has not been wholly punished criminally, notwithstanding some aspects of it have been."
In Gray, Gleeson CJ, McHugh, Gummow and Hayne JJ said:
"[12] Exemplary damages are awarded rarely. They recognise and punish fault, but not every finding of fault warrants their award. Something more must be found. Although they are awarded rarely, they have been awarded in very different kinds of cases: ranging from abuse of governmental power exemplified by Wilkes v Wood [(1763) Lofft 1; 98 ER 489] and its associated cases, through defamation cases of the kind considered in Uren [v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118], to assault cases such as Fontin v Katapodis [(1962) 108 CLR 177]. And the examples could be multiplied.
…
[20] … the remedy is exceptional in the sense that it arises (chiefly, if not exclusively) in cases of conscious wrongdoing in contumelious disregard of the plaintiff's rights…"
I do not accept that exemplary damages should be awarded. The defendant has been punished and sentenced for the offences criminally, and despite not being sentenced for each specific instance of abuse, the sentencing Judge's discretion in determining the sentence which was imposed had an obvious regard to the totality of the defendant's criminal conduct in the context in which the specific offences were committed: see XY v Featherstone [2010] NSWSC 1366 at [8]). I am satisfied that the defendant has been adequately punished for his sexual abuse of the plaintiff and that an award of exemplary damages is inappropriate.
[10]
Other Compensable Loss
The plaintiff also seeks compensation for her living and rental expenses during the period where she lived out of home to try and escape the memories of staying at her family home. The plaintiff provided a helpful record of these expenses, and the basis of her claim for $46,800.
I accept that the plaintiff had to move out of her home and live-in rental accommodation as a result of her suffering anxiety and stress-related PTSD. However, having regard to her age, her level of independence and the ordinary incidences of life as a young adult, it is likely that she would have done so, in any event, during this period. An appropriate allowance for this head of damage is $35,000.
[11]
Conclusion
On the basis of the above findings, I order that judgment be entered for the plaintiff against the defendant in the sum of $820,640.
The defendant must pay the plaintiff's costs.
[12]
Amendments
08 September 2022 - Addition of counsels name
20 September 2022 - Typographical error
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Decision last updated: 20 September 2022