In a landmark decision on 10 May 2024, the Supreme Court of New South Wales awarded $808,690 in damages to the plaintiff in the case of Kucinskas v Lane (No 2). This case, presided over by Elkaim AJ, centred around the devastating impact of child sexual assault and the subsequent damages assessed.
Background of the Case
The plaintiff, Jolie Kucinskas, suffered severe sexual abuse at the hands of Ian Lane, her 40-year-old babysitter, when she was just six and seven years old. The abuse, which took place over a period extending beyond a year, included multiple incidents at public places like swimming pools and parks. This traumatic experience significantly impacted Jolie’s mental health and future prospects. As a result, Jolie was diagnosed by consultant psychiatrist, Dr Ben Teoh, with Chronic Post-Traumatic Stress Disorder and a secondary Substance Use Disorder that was now in remission. Dr Teoh considered that her prognosis for recovery was poor and that she struggled with her employment and studies.
Claim for Damages
The plaintiff claimed damages under the following:
- General damages (including aggravated and exemplary damages);
- Past and future medical expenses (the claim for past expenses was later abandoned due to a lack of evidence);
- Past and future economic loss; and
Future domestic assistance. The Court’s Findings
The plaintiff claimed that the matter of Van Haren v Van Ryn [2023] (“Van Haren”) was highly analogous to her case, noting that it involved the sexual abuse of a child by a defendant who also did not participate in the proceedings. In that matter, Chen J had awarded the plaintiff $500,000 for general damages including aggravated and exemplary damages, and so the plaintiff claimed the same, noting the similarity.
While Judge Elkaim AJ considered that the acts committed were of a highly serious nature, he did not consider that he had to award the same amount of damages. He noted that different, and arguably more severe, psychiatric diagnoses had been made in Van Haren. As a result, he awarded the plaintiff the lesser sum of $350,000.
The plaintiff claimed a buffer sum of $50,000 for past economic loss. In assessing this claim, Judge Elkaim AJ reviewed her “haphazard income history” and her current employment which earned her $1,000 net weekly. He considered that she was “now doing reasonably well”. Judge Elkaim AJ opined that the amount claimed by the plaintiff was quite modest and therefore, accepted her sum.
The plaintiff claimed for $739,300 for future economic loss (a loss of $650 per week for 48 years, reduced by 15% for the vicissitudes of life) or, in the alternative, a buffer sum of $400,000. Judge Elkaim J considered that calculating future economic loss on the basis that she would suffer lifelong disability was inconsistent with Dr Teoh advising that she only required treatment for 1-2 years. However, he acknowledged that her diagnosis of PTSD was likely to cause ongoing disability.
In determining the appropriate sum, Judge Elkaim AJ considered it appropriate to award a buffer sum, but less than the sum the plaintiff had claimed. He awarded her $300,000 which he noted was roughly equivalent to $300 per week for 43 years with the usual deduction for vicissitudes. Lost superannuation was included and calculated at the 14.63% rate, totalling $43,890.
The plaintiff claimed for $20,000 in future out-of-pocket expenses, although Dr Teoh had only considered that $6,500 for a psychologist, $4,200 for a psychiatrist, and medication for two years, was required.
Judge Elkeim AJ considered that treatment would likely be required longer than just a year (as Dr Teoh had opined) and, therefore, allowed the amount claimed of $20,000.00.
In summary, damages were assessed as follows:
| General damages including aggravated and exemplary damages | $350,000.00 |
| Interest on general damages | $44,800.00 |
| Past economic loss including interest | $50,000.00 |
| Future economic loss | $300,000.00 |
| Lost superannuation benefits | $43,890.00 |
| Future medical expenses | $20,000.00 |
| Total | $808,690.00 |
The defendant, who took no part in the proceedings, and whose trustee in bankruptcy did not appear, was ordered to pay the above sum in addition to the plaintiff’s legal costs.
Legal Implications
A cause of action in intentional torts largely excludes the operation of the Civil Liability Act 2002 (NSW) due to the intentional nature of the acts which caused the plaintiff harm. Accordingly, the court was not bound by statutory caps on non-economic loss, future losses were calculated with a lower discount rate, and the plaintiff was able to claim for aggravated and exemplary damages. This damages assessment underscores the seriousness of the defendant’s actions and the need for substantial compensation.
The Road to Justice
Jolie Kucinskas’ journey to proper compensation for her injuries and disabilities was fraught with challenges, including a history of additional abuses and significant mental health struggles. Despite these obstacles, she managed to build a life for herself, currently working as a team leader in a community services organisation. We applaud Ms Kucinskas as just one of many brave survivors of historical abuse and this judgment is a testament to her resilience and the unwavering support of her legal team.
Conclusion
This successful outcome not only provides Ms Kucinskas with the compensation she deserves but also sends a powerful message about the importance of justice for survivors of child sexual abuse.
If you or someone you know needs legal advice and support, please contact The Law Office of Conrad Curry.
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.
