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A claim for a sexual assault on a 16-yr-old youth “in about 1972” that produced a mild mental injury and no proven loss of income has resulted in an award of more than $200,000 in damages.
Arthur Alan (not his real name) claimed to have been sexually assaulted on several occasions by his employer Philip Doyle in connection with his duties as an usher at Doyle’s cinema at Kogarah in Sydney.
But it was only one of those occasions on which he based his claim for compensation for the resulting psychological injury.That was an incident that occurred while he was taking a shower – at Doyle’s suggestion – on a detour to Doyle’s unit when being driven home after a work event.
On Alan’s account, Doyle made an unannounced entrance into the shower recess and commenced to masturbate him without consent “for a few seconds”.
Alan – scared – just stood there. He felt cornered with nowhere to go and responded: ‘I’m not doing any of this, I’m going.’
He left the apartment, walked to Cronulla station, caught a train home and had no further contact with Doyle.
As best as he was able to recall, this had occurred in late 1972 in spring or summer about a year after he had started work at the cinema.
After seeing news reports of Doyle’s arrest in 2009, Alan attended Cronulla police station to make a statement that a detective began to prepare about the shower incident. Alan did not however complete the statement because “he found it too stressful”.
It wasn’t until May 2021 that any injury compensation proceedings were filed in court.
Justice Nicholas Chen had no difficulty concluding that the shower event constituted “sexual misconduct” and therefore came within the definition of “sexual abuse” for which the limitation time bar had been retrospectively abolished in March 2016.
Although Alan was only required to prove his case on the balance of probabilities, His Honour observed that – having regard to the gravity of the allegations of an event that occurred nearly 50 years ago – he was obliged to approach his uncorroborated testimony with extreme care.
That was so even where the court was entitled to draw an adverse inference due to Doyle’s failure to give evidence without any explanation for his absence.
The court closely examined the two other unwanted sexual touching events on a fully clothed Alan which were not raised to ground any claim for compensation but rather, to constitute “tendency” evidence of the defendant’s propensity to behave in such manner.
In Justice Chen’s view, evidence of the “car conduct event” and the “change room event” could not properly be categorised as tendency evidence but could be relied on “relationship evidence”.
The value of such evidence was – the judge explained – that it “tends to remove the implausibility that might otherwise attach to the plaintiff’s account of the ‘shower incident’; and it can be used as some evidence that the defendant was, attracted to the plaintiff and had a motive to act as he did”.
In his view that relationship evidence – particularly of the ‘car conduct event’– rendered Alan’s version more believable.
“I have taken this evidence into account in my assessment of where the probabilities lie,” the judge wrote in the 25 page ruling.
Alan’s claim that he had sustained PTSD was not supported by the psychiatrist he engaged due to the absence of any anxiety or depression and because he had been sleeping well and had good energy, concentration and memory levels.
Dr Nigel Prior considered the impairment to have been a mild alcohol use disorder and an intermittent “Other Specified Trauma and Stress or Related Disorder” that began from around the age of 17 or 18.
Alan also claimed that he had taken up cannabis and alcohol misuse due to the “shower incident” as a coping mechanism, a claim of which His Honour was not convinced.
The judge did though accept that erectile dysfunction, decreased libido, occasional nightmares and painful memories triggered by specific reminders were a consequence of the “shower incident” and that they had a “mild” impact upon him and his relationships.
For this Alan was awarded compensation – “at the upper end of what [was] reasonably available” – of $100,000 plus interest of $60,000.
The court rejected the assertion that the incident had affected his income earning capacity because Alan had been able to maintain full time employment and achieve success in his career.
That said, an amount of $30,000 was awarded to account for the chance that his mild psychological conditions could have prevented him from earning a higher income.
His claims for future loss of income and for aggravated damages were dismissed, the latter because of the high end award for general damages.
Alan’s total award came to $217,550.
AA v PD [2022] NSWSC 1039 Chen J, 5 August 2022 Read case
Categories: sexual abuse