"B" v Reineker  NSW SC 949
The plaintiff commenced proceedings seeking damages for trespass against the defendant and for negligence against Moree Christian Community School relating to events that occurred in the period from 1 August 2001 until 2008. The defendant was employed by Moree Christian Community School as the plaintiff's teacher between 2001 and September 2003.
The plaintiff's claim against Moree Christian Community School was resolved by agreement. The plaintiff continued her claim for damages against the defendant. The principle allegation against the defendant was that between 2001 and 2008 the plaintiff was sexually assaulted by during the course of his employment and on occasions independent of that employment.
The defendant was charged with two counts of aggravated indecent assault of the plaintiff (who was 14 and 15 years of age at the time) and four counts of unlawful sexual intercourse with the plaintiff (three of which occurred when she was 14 and the fourth when she was 15). The plaintiff pleaded guilty to these offences and was sentenced to a term of imprisonment. At the time of the hearing he was still in custody.
The matter proceeded to hearing and was not defended by the defendant. The plaintiff served evidence in support of her case including that of a former partner and her husband. She also served medical expert evidence in support of her psychological injuries.
Her Honour found that the plaintiff established her cause of action and trespass against the defendant. She accepted the plaintiff's uncontroverted evidence of the assaults which the defendant had committed on her, and that she was below the age of consent for a large of proportion of the consults.
Her Honour noted that consent is a defence to assault and that the onus of proving it lies on the defendant. The defendant neither alleged nor proved consent. As he did not appear at the hearing, her Honour addressed this question in light of the plaintiff's evidence. At the time of the assaults the plaintiff was a minor and pupil in the defendant's class. The defendant abused his position of trust and authority. He groomed her and then exploited her and corrupted her for his own sexual needs and desires. In these circumstances, her Honour considered that it would unreal to regard the plaintiff as being able to form a judgment in her own interests whether to consent to the defendant's advances. The affect of the defendant's conduct was to deprive the plaintiff of her power to object, in any substantial way, to his assaults on her. The plaintiff was, in her Honour's view, doing no more than submitting to the defendant's acts in circumstances where he had deprived her of the ability to resist.
The plaintiff claimed general damages, including aggravated and exemplary damages. In assessing damages, her Honour noted that as the tort of trespass is an intentional tort, the Civil Liability Act 2005 (NSW) does not apply.
Her Honour awarded the plaintiff general damages in the amount of $350,000. She found that it was not necessary, in circumstances where the nature of the trespass is sexual assault, and where it is inevitable that the circumstances and manner of the wrong doing gives rise to substantial hurt and damage, to separately identify an award for aggravated damages since this element is included as part of general damages.
Her Honour also found that there can be little doubt that the defendant's conduct meets the description required for an award of exemplary damages. She found however, that it was not appropriate to award exemplary damages against the defendant. Exemplary damages extend beyond compensation are intended to fulfil the purpose of punishment, denunciation and deterrence. Her Honour found that these very purposes were served by the imposition of a sentence upon the defendant, which he is currently serving. Her Honour found that this amounts to a substantial punishment which operates as a bar to an award of exemplary damages.
In addition to an award for general damages her Honour awarded interest and damages for personal injuries which totalled $1,228,000. She also ordered that the defendant pay the plaintiff's costs of the proceedings.
In cases of sexual of abuse, it is important to consider and advise in respect of causes of action in both negligence and intentional tort.
In the plaintiff's case, she succeeded in proving that the conduct of the defendant amounted to trespass to the person. Causes of action in assault and battery may have also been available.
Her honour's award of damages is significant and reflects the severity of the damage caused by the defendant's conduct.
Although the approach taken in respect of aggravated and exemplary damages is unusual, it reflects the factual matrix of the matter and the significant award of general damages.