SMD v JDW [2022] NSWDC 156

SMD v JDW [2022] NSWDC 156

Because the defendant did not contest liability or the plaintiff's evidence, and the Civil Liability Act 2002 (NSW) did not apply to the intentional sexual assaults, damages were assessed at common law. The plaintiff's severe psychological impact justified the claimed general damages and aggravated damages. Exemplary damages were refused because the defendant had received substantial criminal punishment, there was no unusual conduct at the criminal trial or before the court, and the uncharged conduct formed part of the history of offending considered on sentence. The court accepted the plaintiff's evidence and calculations for counselling expenses, past economic loss and future economic...

Jurisdiction
Australia
Judgment Date
12 May 2022
Procedural Posture
Civil Proceedings for Damages for Intentional Torts Arising From Sexual Assaults / Assessment of Damages
Outcome
Judgment for the plaintiff for $534,000, with suppression and non-publication orders made, costs payable by the defendant, and exemplary damages not awarded.
Legal Topics
['damages for Sexual Assault' 'intentional Torts' 'general Damages' 'aggravated Damages' 'exemplary Damages' 'past Economic Loss' 'future Economic Loss' 'suppression and Non Publication Orders']
['tort' 'civil Procedure'] ['damages for Sexual Assault' 'intentional Torts' 'general Damages' 'aggravated Damages' 'exemplary Damages' 'past Economic Loss' 'future Economic Loss' 'suppression and Non Publication Orders']

Case Brief

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Procedural Posture

Civil Proceedings for Damages for Intentional Torts Arising From Sexual Assaults / Assessment of Damages

Legal Issues

  1. 1 ['Assessment of damages for intentional sexual assaults committed by the defendant against the plaintiff when she was a child.' "Whether general and aggravated damages should be awarded for the plaintiff's non-economic loss and distress." "Whether exemplary damages could be awarded notwithstanding the defendant's criminal convictions and term of imprisonment." 'Assessment of future out of pocket expenses, past economic loss and future economic loss.' "Whether suppression and non-publication orders should be made to protect the parties' identities."]

Ratio Decidendi

Because the defendant did not contest liability or the plaintiff's evidence, and the Civil Liability Act 2002 (NSW) did not apply to the intentional sexual assaults, damages were assessed at common law. The plaintiff's severe psychological impact justified the claimed general damages and aggravated damages. Exemplary damages were refused because the defendant had received substantial criminal punishment, there was no unusual conduct at the criminal trial or before the court, and the uncharged conduct formed part of the history of offending considered on sentence. The court accepted the plaintiff's evidence and calculations for counselling expenses, past economic loss and future economic...

Court Disposition

Judgment for the plaintiff for $534,000, with suppression and non-publication orders made, costs payable by the defendant, and exemplary damages not awarded.

Orders

  • ['Orders pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) directing that there be no publication of the names or addresses of either party (or any information tending to reveal the identity or address of either party).' "The parties' names are changed to SMD v JDW." 'Judgment for...