INSIGHTS: What’s the damage? Recent trends in General Damages awards for psychiatric injuries in Victoria.

Key takeaways:

• General damages awards for psychiatric injuries can be significant
• A ‘recognisable psychiatric illness’ must be present
• Treatment not sought is not necessarily an impediment to a psychiatric claim

Have there been any discernible trends in the awarding of damages for psychiatric injuries in recent years in Victoria? Four cases decided between 2013 and 2019 provide some insight into how the Courts have quantified psychiatric injuries. All cases have been determined by a Judge and have involved assault, bullying or sexual abuse.

Eathan Cruse v State of Victoria [2019] VSC 574 (Cruse)

During a raid by Victoria Police on his home, nineteen year old Mr Cruse (Plaintiff) claimed to have suffered physical and psychiatric injuries as a result of battery, assault and arrest without warrant on suspicion of terrorism offences.

The battery and assault were found to have ‘materially contributed’ to the psychiatric injuries suffered by Mr Cruse. After criticising the heavy-handed behaviour of Victoria Police, the Court awarded damages as follows:

• General Damages: $200,000
• Aggravated Damages: $80,000
• Exemplary Damages: $100,000
• Total: $380,000

In Hand v Morris & Anor [2017] VSC 437 (Morris) the Plaintiff was awarded damages for ongoing psychiatric and psychological consequences of childhood sexual abuse giving rise to an anxiety disorder. The Court described the anxiety disorder as chronic and something that ‘permeates’ the Plaintiff’s life. _[1] The Court awarded the Plaintiff $260,000 in General Damages.

In Erlich v Leifer [2015] VSC 499 (Leifer), the Court found that the Plaintiff suffered from depression and Post Traumatic Stress Disorder (PTSD) as a result of sexual abuse by her school teacher.

The Court awarded damages as follows:

• General Damages: $300,000.
• Exemplary Damages: $150,000 against the teacher, and $100,000 against the school.

In Doulis v State of Victoria [2014] VSC 395 (Doulis), the Plaintiff was a school teacher who complained to his superiors about his workload, including classes with children exhibiting difficult behaviours. His workload was not modified, and no support or monitoring was provided by his employer. The Court found that the Plaintiff suffered from a major depressive condition, described as chronic and severe._[2] The Court awarded the Plaintiff $300,000 in General Damages.

Factors taken into account in awarding and quantifying psychiatric injury damages

• Age at time of assault/abuse.
• Defendant’s abuse of position of power, control and/or authority.
• Conduct was a ‘massive’ breach of trust, destructive and evil, committed over a period of years, for the Defendant’s own gratification.
• Plaintiff had previously not sought treatment for psychiatric injuries.
• Attitude and tone of submissions of Defendant in blaming the Plaintiff.
• No internal action taken against offenders.
• No acknowledgement or expression of regret/ contrition for conduct.
• Abuse of power by Police.

Conclusion

Damages for psychiatric injuries can be significant in cases where the injuries stem from physical and/ or sexual assault committed by those in a position of power. A reluctance to seek treatment and an ability to work are not necessarily viewed as impediments to damages awards.

Additional damages awards for Exemplary Damages (Leifer, Cruse) and Aggravated Damages (Cruse) in exceptional circumstances, reflect a willingness by the Court to send a strong message of deterrence and denunciation of the Defendant’s conduct. This in part reflects changing community attitudes to psychiatric illness and a greater understanding and empathy for the effect of such impairment on daily life, relationships and ability to work.

It is always difficult to compare cases involving psychiatric injuries. Comparisons can be only very general at best. Inevitably, each particular case turns on its facts and every case must be looked at on its own merits. _[3]

This article was written by Principals Rob Minc and David Randazzo, and Lawyer Rosemary Blanden. If you would like details on the implications of these cases on your business, please contact us for further information.

[1] Hand v Morris [2017] VSC 437, [102].

[2] Doulis v State of Victoria [2014] VSC 395, [584].

[3] Backwell v AAA [1997] VR 182, [209], Ormiston J, cited in Leifer, [223].

Disclaimer: This information is current as of October 2019. This article does not constitute legal advice and does not give rise to any solicitor/client relationship between Meridian Lawyers and the reader. Professional legal advice should be sought before acting or relying upon the content of this article.