EF v GH [2023] NSWDC 538

In the recent matter of EF v GH [2023] NSWDC 538, the plaintiff, EF (a pseudonym), commenced civil proceedings in which she sought damages from the defendant, GH (a pseudonym), 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. 

The plaintiff gave evidence of the following parts of her body which the defendant touched using his hands in the course of the massages whilst she was unclothed: 

  • Her breasts including on and around the nipple extending to the outside of the breasts; 
  • Her buttocks; 
  • Her vulva; and 
  • The inside of her vagina. 

Dr Gaunson diagnosed the plaintiff as having the following psychiatric conditions as a result of the abuse at the hands of the defendant and her treatment in the Government institution: 

  • Major depressive disorder – recurrent and in partial remission; 
  • Bulimia nervosa – mild at the time of assessment; 
  • Generalised anxiety disorder with features of traumatisation – including panic attacks, worry and obsessional and prominent disassociation; 
  • A differential diagnosis of complex post-traumatic stress disorder. The plaintiff is described as having symptoms with a negative self-concept, difficult interpersonal relationships and emotional dysregulation. Dr Gaunson also describes the plaintiff as having features of avoidance and a sense of threat although it did not meet the criteria for “ex-experiencing”. 

Dr Gaunson expressed the opinion that 50% of the plaintiff’s psychiatric injuries related to her alleged sexual abuse. 

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. The NSW District Court awarded the plaintiff the following damages:  

Head of Damage 

Amount awarded 

Detail 

General Damages for non-economic loss 

$150,000.00 

Half of the amount which should be allowed for the plaintiff’s combined abuse by the defendant and the government institution 

Interest on $100,000 at 2$ 

$48,000.00 

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 

$20,000.00 

Due to the nature of the conduct and the circumstances in which it was committed 

Past out-of-pocket expenses 

$2,000.00 

 

Future out-of-pocket expenses 

$30,000.00 

This is for future medical expenses relying on the estimates in Dr Gaunson’s report.  

Past Economic Loss 

Buffer of $130,000.00 

 

Future Loss of Earning Capacity 

Buffer of $230,000.00 

 

Loss of Superannuation (Past & Future) 

$35,000.00 

 

TOTAL 

$645,000.00 

Ultimately, the NSW District Court awarded the plaintiff damages in the sum of $645,000.00. The Court further ordered that the defendant pay the plaintiff’s costs of the proceedings as agreed or assessed, however, either party may apply to the Court for a different costs order. 

We are specialist abuse lawyers and can help you receive acknowledgement, meaningful apology and financial resolution from those institutions and systems of power that failed to protect you from harm. If you would like advice in relation to a childhood or adult sexual, physical and/or psychological/emotional abuse claim in any jurisdiction in Australia, please reach out to the author, Emily Wright, at Littles Lawyers today. 

Further Abuse Law information and case law updates written by our Emily Wright can be found on our website.  

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