Trigger Warning: This case note contains references to subject matter and material that may be traumatising and/or upsetting for survivors of sexual assault, as well as their families. Reader discretion is advised. On 4 June 2021, Ms Kathleen Palmer commenced proceedings against the State of NSW, Ms Lillian Dora Ladis, and Mr Edwin Schwarz (Palmer v State of New South Wales [2024] NSWSC 179). The lawsuit stemmed from historical child abuse claims, with Ms Ladis, her previous foster mother, accused of physically and emotionally abusing Ms Palmer, and Ms Ladis’s son, Edwin accused of sexually abusing Palmer during the time that she lived in Ms Ladis’s household. The claim against the State of NSW was resolved before this Court decision and Ms Ladis died after proceedings were commenced; therefore, these proceedings were now solely against Edwin Schwarz. As Mr Schwarz failed to file a Defence or appear in Court, the trial judge, Garling J, made a default judgment in favour of Ms Palmer.
The remaining issue was the amount of compensation that Ms Palmer should receive for the sexual abuse that she suffered at the hands of Mr Schwarz. The contribution of Ms Ladis’s abuse could no longer be considered as the case was now solely against Mr Schwarz.
Ms Palmer had experienced a traumatic childhood, beginning with witnessing her mother’s murder by her stepfather at age six in 1973, her subsequent Ward of the State status, and then placement into a foster home in Queensland with her stepfather’s sister, Ms Dora Ladis, where the abuse occurred. During this placement, she was sexually abused on multiple occasions by Mr Schwarz when they were alone in the house, including taking photographs of her naked, touching and digital penetration of her vagina, penile sexual assault, watching her go to the toilet, and making threats of violence to her if she did not comply. These assaults continued until 1980-1.
During the placement, Ms Palmer was also told by Ms Ladis that her mother had deserved to die, that her stepfather was “a great man for killing [her mother]”, and that she [Ms Ladis] only become a foster mother to her “to get back at her mother”. After Ms Palmer argued with her about these comments, Ms Ladis physically assaulted her. Ms Palmer then reported the incident to the school authorities. This resulted in the Queensland Department of Child Safety (“DCS”) being notified and Ms Palmer was subsequently removed from the home. She was then placed in various placements under the care of Queensland DCS.
Following her traumatic childhood, Ms Palmer suffered from severe psychological injury with severe depression, anxiety, and suicidal ideation. Throughout her life, she attempted suicide several times. When assessed by an expert psychiatrist, Dr Karen Chau, for her legal matter, Dr Chau considered that Ms Palmer suffered from Post-Traumatic Stress Disorder, Generalised Anxiety Disorder, and social phobia due to the emotional, physical and sexual abuse she experienced at her foster placement with Ms Ladis.
Ms Palmer claimed that, if not for the abuse she experienced and the resulting injury, she would have trained to become a Registered Nurse in NSW and had a career in nursing until the age of retirement. Unfortunately, Ms Palmer had only been employed on a sporadic, itinerant basis and had never been consistently employed. Due to this, Ms Palmer relied upon a forensic accounting report that detailed her life in nursing, if not for the abuse, and claimed $3.85 million for past and future economic loss.
Garling J discussed the complexity of assessing economic loss in cases of child abuse. Usually when assessing economic loss, you would have a history of work capacity to compare which would help you determine how much the claimant should have been earning. However, with all child abuse, there is obviously no history of work capacity – just intentions of what that child may or may not have chosen to do in the future.
He did accept that the sexual abuse had significantly impacted her ability to work full-time but rejected the notion that, if not for the abuse, she would have pursued a nursing career uninterrupted, considering her actual life course and responsibilities.
The assessment included considerations of Palmer’s pre-existing traumas, separate from Schwartz’s abuse, that contributed to her psychological state including a difficult divorce, a motor vehicle accident causing injury, chronic back pain etc. Furthermore, Garling J did not accept that she would have worked until the age of 70. Ms Palmer had ceased employment in 2019 due to her chronic back pain and he believed that this would have similarly occurred if she was working as a nurse as well. Given this, he did not agree that she had any entitlement to future economic loss.
Although Garling J did not accept Ms Palmer’s claim at its highest, he did acknowledge the traumatic impact that the childhood sexual abuse had on her life. The New South Wales Supreme Court awarded Ms Palmer damages totalling $1,832,900 against Edwin Schwartz, broken down, as follows:
| General Damages: | $400,000.00 |
| Interest on past General Damages: | $200,000.00 |
| Past lost earning capacity (incl. interest): | $1,000,000.00 |
| Lost superannuation and long service leave: | $200,000.00 |
| Cost of future psychological treatment: | $32,900.00 |
This case highlights the legal system’s approach to quantifying damages for abuse victims, considering both the direct impacts of the abuse and the broader context of the victim’s life and challenges.
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Beyondblue https://www.beyondblue.org.au/ 1300 224 636
MensLine Australia https://mensline.org.au/ 1300 789 978
Lifeline https://www.lifeline.org.au/ 13 11 14
DISCLAIMER
This article reflects the current law at the time of publication. It is intended for informational purposes only and does not constitute legal advice. The actual decisions in each case are summarised for general understanding. For specific legal guidance in relation to your situation, please consult with a qualified legal professional.
