EF v GH [2023] NSWDC 538 (on Caselaw).
With thanks to Patrick Thompson for drawing attention to this decision.
EF sought damages from the defendant GH for the tort of battery and consequential psychiatric injuries arising from the historic sexual abuse by the defendant of the plaintiff when she was a child aged 12.
At the relevant time, the plaintiff was an elite athlete who trained and performed under the auspices of a government institution in the Australian Capital Territory. The plaintiff was referred to the defendant for therapeutic massage purposes and the defendant was retained by the plaintiff’s parents to provide such services to her. An unusual feature of the case is that the alleged sexual misconduct by the defendant occurred whilst the plaintiff was receiving therapeutic massage services in the presence of the plaintiff’s mother. There is no suggestion that the plaintiff’s mother was aware of the improper nature of what was occurring to the plaintiff at the relevant time. It appears from all the evidence that what was occurring to the plaintiff happened covertly.
In light of the nature of the conduct pleaded and the age of the plaintiff at the relevant time, issues of consent to the battery did not arise.
The plaintiff commenced proceedings by filing a Statement of Claim on 30 September 2022 against both the current (first) defendant and the Government institution referred to above as the second defendant. The plaintiff discontinued her claim against the Government institution in May 2023.
The claim against the first defendant proceeded as an assessment, in his absence. Damages were awarded as follows:
|
Head of Damage |
Amount Claimed | Detail |
| General damages for non-economic loss | $150,000 | Half of the amount which should be allowed for the plaintiff’s combined abuse by the defendant and the government institution |
| Interest on $100,000 at 2% | $48,000 | The amount of $100,000 amounts to two-thirds of the amount for non-economic loss for the past and one-third for the future. |
| Aggravated damages | $50,000 | Due to the nature of the conduct and the circumstances in which it was committed |
| Past out-of-pocket expenses | $2,000 | |
| Future out-of-pocket expenses | $50,000 | This is for future medical expenses relying on the estimates in Dr Gaunson’s report |
| Past economic loss | Buffer of $150,000 | |
| Future loss of earning capacity | Buffer of $250,000 | |
| Amount for superannuation | $50,000 | |
| Total | $750,000 |
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