Van Haren v Van Ryn

tiff) Solicitors: Premier Compensation Lawyers (plaintiff) File Number(s): 2022/36479 Publication restriction: Nil

Introduction

1. In the period 2010-2012, Edan Van Haren ('the plaintiff') - who was then between 14 and 15 years of age - was sexually abused and sexually assaulted by Maurice Van Ryn. Most of these events occurred at the defendant's then home in Tathra, NSW. Some occurred in the defendant's car.
2. By these proceedings, the plaintiff seeks damages (including aggravated damages) to compensate him for the pain and suffering - and loss and damage - caused by these events.
3. The defendant did not participate in the hearing of the plaintiff's claim. The circumstances surrounding that non-participation should be noted.
4. The plaintiff commenced proceedings by statement of claim filed 8 February 2022 ('the SOC'). The defendant (who at that time represented himself) filed a defence to that claim - it should be noted, making a number of admissions in connection with some of the offending conduct - on 25 May 2022. However, in communication to the Court on 17 April and 30 June 2023, [1] the defendant (or a solicitor on his behalf) advised that the defence would be withdrawn, and that the defendant did not wish to participate in the hearing of the plaintiff's claim in any manner. In those circumstances it is appropriate to proceed without his participation. Nevertheless, he appeared via AVL today and was present during the hearing.

Background

1. The evidence across the facts leading up to, and surrounding, the incidents sued upon were somewhat confined. What follows are my findings in relation to these matters, and the incidents themselves.
2. The plaintiff was born in 1996, and is currently 27 years of age. He is the second of three children to his father and mother: he has an older, and a younger, brother.
3. The plaintiff's parents separated in or around 2000, and the plaintiff and his brothers lived with his mother. Eventually, in around 2003/2004 they settled in Bega, NSW with his mother's new partner.
4. Whilst living in this area, the plaintiff attended Sapphire Coast Anglican College. At that school, when the plaintiff was 14 years of age and in year 9, he became good friends with another student, NC.
5. NC lived with his family in Tathra, NSW. Living opposite them was the defendant. The evidence suggests that the defendant lived there with his "family" - although, aside from the defendant's wife, the evidence did not identify who was a member of the defendant's household at that time. (Nothing turns on this).
6. NC's family were family friends of the defendant, and from this friendship it appears that NC would regularly go to the defendant's house without his family - and if the plaintiff was visiting NC, he would go with him.
7. It was during the course of these visits that some of the abuse was perpetrated upon the plaintiff. (The balance, as later described, occurred in the defendant's car).
8. In approximately December 2010, the plaintiff went with NC to the defendant's home. The defendant's wife was not present at the time. The plaintiff and defendant were sitting in a spa bath, when the following occurred (plaintiff's evidentiary statement, pars 19-29; 'the first incident'): 19. I can't remember exactly what we are talking about but I do remember that as we were talking, the defendant moved around so that he was sitting next to me. 20. At the time, I didn't feel this was unusual because the defendant was a friendly type of person. 21. He was a hugger and by that I mean he would give anyone that he met a hug. 22. Whilst I was sitting in the spa, I felt the defendant's hand on my leg. 23. When he put his hand on my leg, I just froze, I didn't know what to do or say. 24. He then moved his hand up my leg and put his hand up the leg of my boardies and grabbed my penis. 25. I just froze. I had no idea what to do. 26. The defendant then untied my boardies and slid them down my legs so that they were around my thigh area and played with my penis. 27. He then lifted me up and put me on his lap so that I was facing him. 28. He then lifted me up further and put my penis in his mouth. 29. I can't remember anything from there. I think I have just blocked it out.

Liability: the plaintiff's causes of action

1. The plaintiff particularised five specific events (SOC, pars 7(a)-(d) and (f) - the first to fifth incidents), as well as allegations of abuse of particular kinds occurring on multiple occasions between 2010-2012 (SOC, par 7(e) - the car conduct abuse), and relied upon them as supportive of causes of action expressed as "a trespass to the person of the plaintiff and constituted a rape and/or sexual assault and/or a battery" (SOC, par 9) or, alternatively, they are said to have constituted "a negligent act" (SOC, par 11). (Given that the plaintiff is entitled to succeed in the causes of action for assault and battery, it is unnecessary to address whether a claim in negligence is, in the circumstances established, apt).
2. Although the plaintiff sues in 'trespass', current tort law taxonomy suggests that a cause of action in trespass - distinct from assault and battery - has fallen away and developed into "the nominate torts of assault, battery and false imprisonment": Carolyn Sappideen and Prue Vines (eds), Fleming's The Law of Torts (10th ed, 2011, Thomson Reuters) at 25 ('Fleming's'); Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132 at [20] ('Croucher'). The decisions in Whittaker v Child Support Registrar [2009] FCA 188 at [34] and [37] and Carter v Walker (2010) 32 VR 1; [2010] VSCA 340 at [215] ('Carter') are to the same effect.
3. I will, therefore, address the causes of action in assault and battery.

Assault

1. An assault "consists in intentionally creating in another person an apprehension of imminent harmful or offensive conduct": see Fleming's at 34, cited approvingly in Rixon v Star City Pty Limited (2001) 53 NSWLR 98; [2001] NSWCA 265 at [57] ('Rixon'); Croucher at [99]. That is, there must be an intentional act by the defendant. An action for assault also requires proof of an intention to create in another person an apprehension of imminent harmful or offensive contact: Hall v Fonceca [1983] WAR 309, 314; Rixon at [58].
2. Typically, but not invariably (a battery can be inflicted upon an unexpected victim), assault occurs before battery: it is, in that situation, often called 'assault and battery'. Here, each incident of abuse (including the car abuse) involved a battery (as I explain below: see [33]ff, below) and all but certainly involved an assault in the moments leading up to the battery.
3. In those circumstances, it is, in my view, impossible to sensibly separate the respective parts of each of the events of abuse for the purposes of assessing damages in relation to each cause of action (viz., assault and battery) where, as here, the claim is based (and only based) on psychiatric injury caused by such conduct. I will illustrate the point by reference to the first incident.
4. It is clear that the plaintiff, whilst in the spa with the defendant, apprehended harmful or offensive conduct: his evidence was that, when in the spa and in the moments following the defendant putting his hand on the plaintiff's leg, the plaintiff "just froze" and "had no idea what to do". Having regard to this evidence, and the circumstances leading up to it and immediately following it, I am satisfied that the defendant, by his conduct, threatened to inflict harmful or offensive contact on the plaintiff, and to do so imminently. I am also satisfied that the defendant, by engaging in the conduct - at this point moving close to the plaintiff whilst they were in the spa, putting his hand on the plaintiff's leg and then moving his hand up his leg and underneath his board shorts - subjectively intended that such conduct would create in the plaintiff's mind an apprehension that harmful or offensive contact would be carried out imminently. I have earlier found that the plaintiff apprehended harmful or offensive conduct at this point; and I am further satisfied, and find, that that apprehension was demonstrably reasonable, and objectively so. Of course, intertwined with these acts, and immediately following them, the defendant subjected the plaintiff to unwarranted and improper physical contact (viz., battery): the defendant placed his hand on the plaintiff's leg, moved his hands under the plaintiff's board shorts and grabbed his penis, and then subjected him to a sexual assault.

Battery

1. Battery involves the actual infliction of unlawful force on another: Boughey v The Queen (1986) 161 CLR 10, 25; [1986] HCA 29. The most recent, commonly cited, exposition of the tort is that of Leeming JA in Croucher at [21] where his Honour said: "A defendant who directly causes physical contact with a plaintiff will commit a battery unless the defendant proves that the defendant was 'utterly without fault'". The touching of another person, however slight, may amount to a battery: Collins v Wilcock [1984] 1 WLR 1172, 1177-1178, Binsaris v Northern Territory (2020) 270 CLR 549; [2020] HCA 22 at [41]. Like assault, battery is an intentional wrong such that "the offensive contact must have been desired (purposive) or known to be substantially certain to result": see Fleming's at 34. Thus, relevantly here, although battery does not require that the defendant intended the plaintiff any harm, if "the act is voluntary, and the defendant 'meant to do it' in the sense of meaning to contact the plaintiff, it will be relevantly intentional": Carter at 215.
2. In my view, this cause of action is clearly made out on the findings that I have made in connection with the specific events of abuse (see [12]-[18], above): the defendant plainly made contact with the plaintiff in sexually abusing him, and it is equally plain that he intended to make that contact - by reason of the voluntary nature of his acts and the defendant "meaning to contact the plaintiff". To be clear, there is no suggestion that the conduct of the defendant could be characterised as "utterly without fault"- and therefore in some way excusable, and I do not find that it was.

Damages

1. The plaintiff seeks general damages, damages for loss of earning capacity (for the past and the future) and consequent loss of superannuation entitlements (for the past and the future), as well as damages for future medical and out-of-pocket expenses. The plaintiff also seeks aggravated and exemplary damages.
2. Before addressing the plaintiff's claim for damages, the following two matters should be noted.
3. The first is that the plaintiff argued that the provisions of Part 2 of the Civil Liability Act 2002 (NSW) ('the CLA') did not apply to any assessment of damages if I accepted the plaintiff's version: it was specifically pleaded that each of the incidents relied upon "was an intentional act that was intended to cause harm to the plaintiff": SOC, par 10. In my view there is a more straightforward explanation for why the provisions in Part 2 of the CLA do not apply. That outcome follows because the liability of the defendant is "civil liability" in respect of "sexual assault or other sexual misconduct": s 3B(1)(a) of the CLA. In those circumstances, the plaintiff's entitlement to damages is to be assessed at common law, and not pursuant to Part 2 of the CLA.
4. The second is that the two causes of action - assault and battery - are directed to compensating for the consequences of the offending conduct. In relation to assault, the plaintiff's apprehension must cause injury, loss or damage - a requirement that attracts the ordinary common law concepts of causation: ACN 087 528 774 Pty Ltd v Chetcuti (2008) 21 VR 559; [2008] VSCA 274 at [16]; Snell v State of Victoria (Department of Education and Training) (2022) 404 ALR 1; [2022] FCA 5 at [39]. In relation to battery, "once battery is established, immediate harm and consequential damage are compensable. The boundary of entitlement is set by the conception of 'natural and probable consequence' (or 'result')": Carter at 215. As I earlier indicated, given the nature of the 'events', it is not possible to sensibly separate the assault from the battery in terms of assessing damages for psychiatric injury, and the plaintiff during submissions did not advocate such an approach.

The nature and extent of the plaintiff's injuries

1. The plaintiff claims, in consequence of the abuse perpetrated upon him, to have developed psychiatric injury: specifically, major depression and post-traumatic stress disorder ('PTSD'). The plaintiff does not claim any amount of damages for the physical interference that arose in consequence of the abuse.
2. By all accounts, prior to the events in question, the plaintiff was a happy, well-adjusted, thoughtful and caring young man who was excelling at school and various sporting endeavours.
3. The plaintiff's evidence - which, as earlier noted, I accept unreservedly - is that the abuse has had a significant and detrimental impact upon him. That was also the effect of the evidence - which I also accept unreservedly - from his family members.
4. The effect of the abuse, I find, has had profound effects upon the plaintiff: he has had feelings of embarrassment, shame, guilt and personal responsibility for what has occurred. Although to those close to him this was not perceptible (at least until 2016), I have no doubt that the plaintiff experienced inner turmoil from these symptoms on an ongoing basis from the time that the abuse was inflicted upon him, but simply hid his suffering.
5. The plaintiff has also experienced, and continues to experience, a constellation of other symptoms including suicidal ideation, self-harming, depression, insomnia, loss of control, anger and aggression, and difficulties with interacting with others in social and work settings.
6. The fact that the plaintiff was able to continue with his schooling, and attain the marks that he did (including the awards that he received) is a testament to his self-declared ability, at least to that point, "to just block things out to be able to get through" (plaintiff's evidentiary statement, par 75). It reflects favourably upon him, in my view.
7. Nevertheless, I accept, and find, that following the plaintiff's completion of high school in 2013 there began a gradual decline in the plaintiff's mental health and well-being. This decline culminated in, as I have earlier noted, the plaintiff being arrested in 2016 in connection with a domestic disturbance with his then girlfriend.
8. To those close to the plaintiff - his family - this was an event that was quite out of character. Following his arrest, the plaintiff disclosed to his family that he was a victim of the defendant, and that he was suffering and struggling to function across many aspects of his life.

General damages

1. In light of the findings that I have made, I assess general damages at $500,000. Within that amount, as I later explain, I have allowed for both aggravated and a component for exemplary damages.
2. The plaintiff is entitled to interest on this amount in accordance with MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657, 663-664; [1991] HCA 3; Metropolitan Meat Industry Board v Williams (1991) 24 NSWLR 54, 58-59.
3. For purposes of calculating interest, I allocate 20% of those damages to the past (which takes into account that the events occurred between 11-13 years ago, and that there is an assumed life expectancy of around 56 years, according to the Median Life Expectancies Tables, 2022), and the reduction in rate is to reflect the fact that I am allowing the interest over the entire period of the claim.
4. The calculation, therefore, is: 2% x $100,000 x 13 = $26,000.00.

Loss of earning capacity

1. The plaintiff claims both past and future economic loss.
2. In order to recover damages for loss of earning capacity, what must be established is a diminution in earning capacity which is or may be productive of a loss: Graham v Baker (1961) 106 CLR 340, 347; [1961] HCA 48; Medlin v State Government Insurance Commission (1995) 182 CLR 1, 3; [1995] HCA 5. I will deal with each claim, in order.

Past economic loss

1. The plaintiff claims past economic loss in the sum of $150,000, to be assessed as a global sum, rather than by a more conventional approach - that is, by undertaking a mathematical comparison between the economic benefits derived from the plaintiff exercising his (injured) earning capacity, and the economic benefits that would have been derived, but for the defendant's conduct and the injuries suffered in consequence.
2. Assessments of damages for loss of earning capacity by reference to a "buffer" are ordinarily encountered in situations where the Court finds there is a risk that, in consequence of the injury, a plaintiff may lose otherwise secure employment or because there is considerable residual earning capacity: Penrith City Council v Parks [2004] NSWCA 201 at [3]-[5]; Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 at [2] and [33]; Allianz Australia Insurance Limited v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13 at [24]. (Although these cases were concerned with assessments under the CLA, the issue raised was one of principle - viz., whether an assessment by way of buffer was otherwise precluded by s 13 of the CLA).
3. Notwithstanding that the assessment of loss of earning capacity by way of "buffer" is typically encountered in assessments of that loss into the future, there is "no principle which prohibits the awarding of a buffer for past economic loss in an appropriate case": Ramsey v Denton [2021] NSWCA 310 at [61] and [112]; John XXIII College v SMA [2022] ACTCA 32 at [189]. The question here is whether or not this is "an appropriate case" for that approach and, if so, the quantification of any lump sum awarded.
4. The evidence was rather confined. Following the plaintiff completing his SACE (in which he attained a mark equivalent to an ATAR of 99.95), the plaintiff was offered a place at university to study mechanical engineering. The plaintiff accepted that offer and enrolled in that course, commencing in 2014. He has struggled with the academic demands placed upon him which I accept is a consequence of the psychiatric injuries and disabilities. His progression through that degree has been disrupted and delayed as a further consequence. He has yet to complete that course, and his evidence was that he expects to do so by the end of 2024. None of the plaintiff's academic records - from school or university - were in evidence.

1. Beyond that time, the plaintiff's evidence relating to his earnings was somewhat meagre. It was confined to the plaintiff's evidence that since "January 2022, I have been working for Willunga Quarry engaging in car restoration duties and I am in receipt of Centrelink benefits" (plaintiff's evidentiary statement, par 137). His evidence was that he earnt in the 2022 financial year approximately $15,000.
2. Given the paucity of material, I am satisfied that the plaintiff's capacity to earn in the financial years 2022 and 2023 was $25,000. Approaching the matter in that way, the plaintiff's past earnings (from 2019 to date) are approximately $135,000.00. The earnings of a graduate, and later employed, engineer (from 2019 to date) I have taken to be $390,000.00. The difference, therefore, is $255,000.00. In my view this amount appropriately and reasonably reflects the plaintiff's loss of earning capacity.
3. The plaintiff is entitled to interest on past economic loss. The conventional method is to use the average rate of interest in s 101 of the Civil Procedure Act 2005 (NSW) for half a period on the entire amount or for the full period on half the amount: Cullen v Trappell (1980) 146 CLR 1, 19; [1980] HCA 10.
4. The calculation is: $255,000.00 x 5% x 2.5 = $31,875.00.

Future economic loss

1. The plaintiff claims the sum of $500,000 for future loss of earning capacity as a "buffer".
2. As with the claim for past diminution in earning capacity, the evidence in support of this part of the plaintiff's claim was extremely limited. Although that does not, in and of itself, preclude an award of damages for future economic loss (Moss at [66]), it presents an added challenge.
3. Some matters are clearly established. The plaintiff has well entrenched psychiatric conditions, with a guarded prognosis and those conditions are likely to interfere, I find, with the plaintiff's earning capacity into the future. The plaintiff has struggled to complete his university degree, albeit that he is likely to do so by the end of 2024 - taking, as I have earlier found, approximately twice as long to complete the degree. That is further evidence that I accept is demonstrative of the psychiatric conditions interfering with the plaintiff's earning capacity - over an extended period of time. The plaintiff commonly has interpersonal difficulties - which I accept are a product of the various symptoms that the plaintiff has as a result of the abuse inflicted upon him - and they are likely to be further impediments to an uninterrupted earning capacity. Further, given these matters, there is a degree of uncertainty about whether - and if so, to what degree - the plaintiff is likely to be able to fulfil his goal of working as a mechanical engineer.
4. In my view, the matters to which reference has been made satisfied me that the plaintiff has suffered a diminution in his earning capacity of 331/3%. Again, as with past economic loss, there is limited material upon which to assess the plaintiff's loss. Approaching (as I did in connection with past economic loss) the matter by reference to Average Weekly Earnings for Adult Males (derived from Australian Bureau of Statistics data from November 2022), net weekly earnings are approximately $1,500.00.
5. The 3% multiplier, assuming retirement at 65 years, is 1191.2.
6. The calculation is: 1191.2 x $500 = $595,600, less 15% for contingencies = $506,260.00.

Loss of superannuation entitlements

1. In view of the finding that I have reached in connection with loss of earning capacity, I allow an amount, calculated at 11% of the loss quantified, to cover for loss of employer funded superannuation contributions. (The rate of 11%, it should be noted, was the one claimed by the plaintiff).
2. I allow $28,050.00 - being 11% of the award for past loss of earning capacity.
3. Interest on this amount, applying the rate (5%) and over half the period claimed, is $3,506.25.
4. For the future I allow 11% (in line with what was claimed for the past) - namely: $55,688.60.

Out of pocket expenses

1. Although the plaintiff incurred past treatment expenses - the precise nature and extent of that treatment was not established - it was accepted that those expenses had been met by Medicare or, that there was no obligation to repay those expenses. Accordingly, the plaintiff did not press a claim for claim for past medical or out-of-pocket expenses.
2. In relation to the future, the plaintiff claimed the sum of $49,216.21. The written submissions did not identify the basis for this claim although during oral submissions it was not pressed.
3. The plaintiff's claim for medical expenses was based upon the expression of the need for such treatment by Dr Teoh and I accept that there is a reasonable injury related need for them - that is, monthly sessions with a psychiatrist "for at least 12 months" at a cost of $350 per session (total: $4,200); a "need to continue pharmacological therapy" - albeit what this involved was not specified; and fortnightly counselling with a psychologist for 6 months at a cost of $250 per session (total: $3,250).
4. In relation to medication, the evidence was, as I noted above, confined. I allow $3,000 on the basis that a trial of medication, and the possible need for it to be used to treat the depressive symptoms for the short to mid-term, has been recommended.

Aggravated damages

1. The plaintiff claims aggravated damages in the amount of $100,000.00. The claim was advanced on the basis that the plaintiff's loss and damage was "aggravated by the fact of the defendant, being in a position of control and trust as a neighbouring adult was in a special position to rape and sexually assault the plaintiff" (SOC, par 13) and that the defendant's "conduct is deserving of a substantial award of aggravated damages" (SOC, par 14).
2. In AA v PD [2022] NSWSC 1039 at [126]-[128] I said the following in relation to aggravated damages: [126] Aggravated damages are a form of general damages, given by way of compensation for injury to the plaintiff, which may be intangible, resulting from the circumstances and manner of the wrongdoing: State of New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57 at [31] (Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ). They are awarded for injury to the plaintiff's feelings caused by insult, humiliation and the like: Lamb v Cotogno (1987) 164 CLR 1 at 8 (Mason CJ, Brennan, Deane, Dawson and Gaudron JJ); [1987] HCA 47. That is, they are awarded when the harm done by the wrongful act was aggravated by the manner in which the act was done: Uren v John Fairfax (1966) 117 CLR 118; [1966] HCA 40; State of New South Wales v Abed [2014] NSWCA 419 at [231] (Gleeson JA, Bathurst CJ and Macfarlan JA agreeing). The entitlement to aggravated damages therefore turns upon establishment of these elements. The defendant's conduct [127] In order to secure an award of aggravated damages, typically (but not invariably) there must be "conscious wrongdoing in contumelious disregard of another's rights": Gray v Motor Accidents Commission (1998) 196 CLR 1; [1998] HCA 70 at [14] (Gleeson CJ, McHugh, Gummow and Hayne JJ). In State of NSW v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208 at [138] (Hodgson JA, Sheller JA and Nicholas J agreeing) ('Riley'), explained that whilst the presence of malice was not essential to ground an award of aggravated damages, and gave some guidance on the character of the defendant's wrongful conduct necessary to support such an award: "Conduct may be high-handed, outrageous, and show contempt for the rights of others, even if it is not malicious or even conscious wrong-doing. However, ordinarily conduct attracting exemplary damages will be of this general nature, and the conduct must be such that an award of compensatory damages does not sufficiently express the court's disapproval ..." Injury to feelings [128] As aggravated damages, like compensatory damages, are directed towards injury to (or hurt) feelings, the Court must take care not to "double-count". This is particularly relevant in a case whether the injury relied upon to justify an award of damages is psychiatric, rather than physical, injury. This means that, if a court has awarded damages for hurt feelings as part of ordinary compensatory damages, the award of aggravated damages must only be for the difference justified by this approach; that is, an award of so much as is necessary to bring the damages up to the upper end of the available range: Riley at [131]-[133] (Hodgson JA, Sheller JA and Nicholas J agreeing); State of New South Wales v Radford (2010) 79 NSWLR 327; [2010] NSWCA 276 at [95]-[96] (Sackville AJA, Beazley and Macfarlan JJA agreeing).

Exemplary damages

1. The plaintiff claims exemplary damages in the amount of $100,000.00 on the basis that the defendant "took advantage of his position of control and domination over the plaintiff to rape and sexually assault him in a manner calculated to cause maximum harm to the plaintiff, whilst gratifying himself" (SOC, par 15) and that the defendant's "conduct speaks of a contumelious disregard of the plaintiff's rights and interests of a most extreme and egregious nature and is made the more reprehensible by reason of the power imbalance" (SOC, par 16) such that a substantial award of exemplary damages is "warranted and needed to ensure such conduct is never repeated" (SOC, par 18).
2. Exemplary damages serve a different function to aggravated damages. They go beyond compensation, and are awarded to punish the defendant for conduct showing a conscious and contumelious disregard for the plaintiff's rights and to deter him from committing like conduct again: Lamb v Cotogno (1987) 164 CLR 1, 8; [1987] HCA 47; New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57 at [33] ('Ibbett'); State of New South Wales v Abed (2014) 246 A Crim R 549; [2014] NSWCA 419 at [232]-[233].
3. Some further matters should also be noted in connection with exemplary damages. First, there is a need for moderation and restraint when awarding exemplary damages: XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448, 463; [1985] HCA 12; Backwell v AAA [1997] 1 VR 182, 205. Put another way, exemplary damages are awarded rarely and not every finding of fault warrants such an award: State of New South Wales v Zreika [2012] NSWCA 37 at [61] ('Zreika'). The "fact that an award of exemplary damages constitutes an expression of the Court's disapproval of the conduct does not mean that the Court's disapproval is a sufficient reason to make an award": State of NSW v Delly (2007) 70 NSWLR 125; [2007] NSWCA 303 at [117]. Secondly, it is necessary to determine and assess "both heads of compensatory damages before deciding whether or not a further award is necessary to serve the objectives of punishment, deterrence or condemnation": Zreika at [63]; Ibbett at [34]. Thirdly, in "cases where the same circumstances increase the hurt to the plaintiff and also make it desirable for a court to mark its disapprobation of that conduct, the court may choose to award one sum which represents both heads of damage and no element more than once": Ibbett at [35]; Zreika at [63]. Such an approach avoids the risk of overcompensation or "double punishment".

Summary of damages

1. I provide the following summary of the damages I have awarded: General Damages (incl. aggravated and exemplary damages) $500,000.00 Interest on general damages $26,000.00 Past loss of earning capacity $255,000.00 Interest on past loss of earning capacity $31,875.00 Past loss of superannuation $28,050.00 Interest on past loss of superannuation $3,506.25 Future loss of earning capacity $506,260.00 Future loss of superannuation $55,688.60 Future out-of-pocket expenses $10,450.00 Total $1,416,829.85

Orders

1. For the above reasons, I make the following order: 1. Verdict and judgment for the plaintiff in the sum of $1,416,829.85. 2. Order the defendant to pay the plaintiff's costs of the proceedings.

Endnote

1. Exhibit A (letter dated 17 April 2023) and Exhibit B (letter dated 30 June 2023). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 July 2023