ZAB v ZWM [2021] TASSC 64 (on AUSTLII).
In 2016 the defendant pleaded guilty to a charge of maintaining a sexual relationship with a young person under the age of 17 years – the plaintiff – and was sent to prison. This action was commenced before he was released.
In his amended defence, the defendant pleaded consent and other defences. He admitted touching the plaintiff’s genitals on four occasions, but pleaded that those acts “were done without indecent intent and were done with the Plaintiff’s consent and/or in the alternative were done in the discharge of the Defendant’s duty as parent of the Plaintiff, then a minor, to take care for the Plaintiff’s health, wellbeing and development”. Since the defendant did not defend the case at trial, no evidence was presented to support those allegations.
The Court assessed compensatory and aggravated damages, but not exemplary damages which had not been claimed, presumably because of the defendant’s imprisonment. The trial judge said:
This is an appropriate case for aggravated damages to be awarded because of the repeated breaches of trust on the part of the defendant in sexually abusing his son, and because of the unusually dreadful conduct on his part during and since 1999 as outlined above at [11]-[33]
The reference to [11] – [33] was a reference to the defendant’s initial denial of the abuse and to other steps taken by the defendant including his conduct in defending the civil action. The plaintiff’s non economic loss, including aggravated damages, was assessed in the sum of $300,000. Interest was also awarded. The overall damages award was as follows:
- Past impairment of earning capacity $1,563,000
- Past superannuation contributions $257,000
- Interest on those amounts $577,000
- Future impairment of earning capacity $2,022,000
- Future loss of superannuation contributions $378,000
- Past medical and pharmaceutical expenses $34,000
- Future medical and pharmaceutical expenses $115,000
- Non-economic harm $300,000
- Interest re past non-economic harm $67,500
- Total $5,313,500
[BillMaddensWordpress #1930]