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Accident Compensation Cases

AB v CD (HC, 11/03/92)

Judgment Text

ORAL JUDGMENT OP FRASER, J 
FRASER, J
These two actions were heard together pursuant to an order made on an earlier occasion by Holland, J. Each is a claim for punitive damages by a daughter of the defendant, broadly speaking in respect of sexual abuse. One plaintiff is AB now aged —, the other is EF who is —. 
Because of the nature of the case I made an order that the hearing should be in private except that any accredited media representative could be present and that no report of the proceedings (other than this judgment) or the names or any particulars likely to lead to the identification of the parties be published. 
Defendant filed a statement of defence denying liability but when the case was called earlier this week Mr Mill who had been acting as counsel on the instructions of solicitors in —, where the defendant now lives, said he had been completely unable to obtain any instructions since the case had been set down for trial. He accordingly sought leave to withdraw which was granted. He confirmed that the defendant and his — advisers were fully aware that the trial was to be heard this week. 
The evidence, in general terms, is first in respect of AB that from about — to — when she was aged — to —, she was sexually abused by the defendant, her father, commencing with handling of her private parts and then developing into full sexual intercourse and oral sex, accompanied by threats from him of harm if she did not keep quiet. This episode accordingly lasted for about four years and the acts complained of were frequent, probably about once a week, sometimes more often. 
In the case of EF, the evidence is that for a period prior to — —, when she was about — or —, there were occasions when the defendant handled her private parts and then after — when she was about — or — it seems her father had access to her with her staying at his place of residence a number of indecencies took place and, although sexual intercourse was attempted on two occasions, that was not accomplished. 
Having heard the girls and their mother I accept that the events alleged did indeed occur and that the circumstances were such that they amounted to a gross breach of trust. I infer that they must have seriously and adversely affected the childhood of these plaintiffs and probably their future lives as well. 
Compensation for harm done to these young women is now covered by the New Zealand Accident Compensation scheme but it has been submitted, and I accept on the authority of Donselaar v Donselaar [1982] 1 NZLR 97 that s 5(1) of the Accident Compensation Act 1972 does not bar an award of exemplary damages even although as a result of the conduct complained of the plaintiff may have suffered personal injury by accident. 
I refer next to a passage in the judgment of Cooke, J in that case at p.107: 
“The Courts will have to keep tight rein on actions, with a view to countering any temptation, conscious or unconscious, to give exemplary damages merely because the statutory benefits may be felt to be inadequate. Immoderate awards will have to be discouraged. Trial Judges will have to be clearly satisfied that the case is a proper one for considering exemplary damages, bearing in mind the kind of conduct which such damages are designed for, and not lightly to allow a claim to go to a jury. Cases of this kind are apt to raise difficult questions of mixed law and fact for which trial with a jury may not be appropriate; the present case is an example. Whether a case is one which may reasonably be considered fit for an award, and the level of damages, are matters which at times may have to be scrutinised carefully on appeal also. ”
I refer also to the judgment of Somers, J in Taylor v Beers [1982] 1 NZLR 81 at p.93: 
“Exemplary damages, sometimes called punitive, vindictive or retributory damages, are not compensatory but are intended to punish the defendant. Their award seeks to achieve recognised objects of the criminal law — deterrence and retribution. ”
Mr Walton has assisted me with a submission as to the law but obviously because the claim is undefended the question of the scope and ambit of such claims and whether a claim such as the present comes within its ambit was not fully argued in the ordinary sense. That qualification must be kept in mind when reading this judgment. 
Subject to that, however, I consider that the present claims do come within the principles I have referred to and that are award should be made. 
In the case of AB the period of abuse was much longer and the conduct itself was much more serious and degrading. I think that a distinction must be drawn between the two cases because such more serious and more extensive abuse is deserving of greater punishment. 
The claims have been formulated in the case of AB in the sum of $20,000 and in the case of EF in the sum of $10,000. In my opinion those claims are moderate and reasonable. 
I award AB the sum of $20,000 by way of punitive damages, and EF the sum of $10,000. Each is to have costs in the action according to scale and disbursements and witnesses expenses to be fixed by the Registrar. 
If there are any matters on which counsel seeks certification they may be submitted to me. 
In practical terms, however, there is a fund available which currently stands at just over $18,000 in respect of which each plaintiff has obtained a charging order and Mr Walton tells me that this represents the total expected to be available to meet the judgments so that the question of apportionment between the two plaintiffs requires to be determined. He raised with me the possibility of dealing with that matter today but because the interests of the two plaintiffs are different (without in any way implying any conflict between them) and as one of them is still an infant, it seems to me that that question should not be dealt with today but rather that leave should be reserved to apply if that should be necessary. 
As indicated to counsel it may well be that after the parties have had separate legal advice agreement can be reached on the question without the necessity of any further elaborate process or argument, but that remains to be seen. For present purposes I simply reserve leave to apply in that respect. 

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