NO EXEMPLARY OR AGGRAVATED DAMAGES AWARDED FOR ALLEGED SEXUAL ASSAULT, HARASSMENT, BULLYING AND INTIMIDATION
In the matter of RS v HS  WADC 157 the Court found in favour of a Plaintiff for general damages and future medical expenses but was of the view that the facts of the case were not appropriate for an award of either aggravated damages or exemplary damages.
The Plaintiff sued the Defendant for damages arising out of claims brought pursuant to the tort of battery and the tort of intentional infliction of harm. With regards to the former, the Plaintiff alleged that she was unlawfully sexually penetrated by the Defendant and with regards to the latter the Plaintiff alleged that, knowing full well that the Plaintiff was of Indian Hindu origin, coerced and threatened her not to tell anyone about the alleged sexual assault. The Court concluded with regards to the sexual penetration that the Plaintiff carried the burden of proving her claim on a balance of probabilities and it was not persuaded that such act was committed against her by the Defendant. The Court was, however, satisfied on a balance of probabilities that the Plaintiff and the Defendant were at some stage involved in a consensual sexual relationship. In that regard the Court was unable to exclude the possibility that, the Plaintiff’s husband having discovered about the affair and the wider implications for the Plaintiff within the Indian community in Australia, that she believed it was necessary for her as a matter of her own “respect” to allege that she had been “raped” by the Defendant since this was the “lesser of two evils” in the “eyes” of the Indian community. In that regard the Court concluded that on the case of sexual assault the Plaintiff’s claim must fail and be dismissed.
However, with regards to the tort of intentional infliction of harm, the Court concluded that whilst the Plaintiff did not specifically plead that she had suffered harm because of the mere fact that the Defendant had threatened to tell people that they had had a sexual relationship as opposed to having been “raped”, the Court believed such view was sufficiently covered in the particulars set out in her statement of claim and was subjected to evidence at trial. The Court was not satisfied that the Defendant had deliberately intended to cause the Plaintiff harm, but was, however, satisfied to the requisite standard that the Defendant was recklessly indifferent to the result that would flow from his conduct. In the Court’s view, the nature and scale of his conduct was such that the natural and probable consequence of that cause of conduct was that the Plaintiff would suffer a psychiatric injury. The Defendant’s personal and intimate relationship with the Plaintiff lead the Court to an overwhelming conclusion that a reasonable person standing in the position of the Defendant should have realised that the sort of conduct that he employed against the Plaintiff would have a significantly adverse effect upon her mental health. In the circumstances the Court was satisfied on the evidence of the Plaintiff that she was harassed, intimidated, threatened and emotionally abused in the manner set out in her pleadings.
In that regard and having established and satisfied the Court that the Plaintiff was suffering from a Major Depressive Disorder consequent upon the bullying, harassment and intimidation carried out by the Defendant against her it was for the Defendant to satisfy the Court that such disorder and injuries suffered by the Plaintiff were not caused by his conduct but rather by some other factor or factors. The Court concluded that the Defendant’s contact which amounted to bullying, harassment and intimidation, was the only factor causing the Plaintiff’s Major Depressive Disorder which materially contributed to causing her to suffer from a major depressive disorder.
Having found liability and causation in favour of the Plaintiff, it was necessary for the Court to assess her injuries, loss and damage.
In that regard the Plaintiff sought an award of aggravated damages on the basis that:
1. the Defendant’s conduct in failing to admit the allegations in the Plaintiff’s Statement of Claim and opposing the claim had increased the Plaintiff’s suffering; and
2. the harm inflicted upon the Plaintiff by the Defendant was done with contumelious disregard for the Plaintiff’s rights in an insulting and malicious manner.
The Court, after referring to various Judgments of the High Court, stated that aggravated damages are normally awarded to compensate a Plaintiff when the harm done by a wrongful act was aggravated in the way the act was done. It stated further that it was a key requirement of a claim for aggravated damages that the conduct must have increased the Plaintiff’s suffering. The High Court continued in various other matters to describe aggravated damages as “a form of general damages given by way of compensation for injury to the Plaintiff, which may be intangible, resulting from the circumstances and manner of wrongdoing”.
Exemplary damages, unlike aggravated damages, do not focus on the injury to the Plaintiff, but rather on the conduct of the Defendant which is said to be so reprehensible that warrants that the Defendant should pay an additional amount of tort damages. It is generally recognised that exemplary damages are awarded rarely and, while they recognise fault, not every finding of fault warrants the reward. It is also the case that exemplary damages chiefly if not exclusively, arise in cases of conscious wrongdoing when there is contumelious disregard of the Plaintiff’s rights.
The Court concluded that in its view, this was not an appropriate case for an award of either aggravated or exemplary damages and that the Defendant’s conduct did not, in its opinion fall within the category of the sort of conduct that exhibits the kind of conscious and contumelious disregard for the Plaintiff’s rights as would justify an award of exemplary damages as both punishment and deterrence.
The Court awarded $30 000.00 for General Damages and Future Medical and Psychiatric treatment.
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