The recent decision in Steen v Trustees of the Diocese of Tasmania [2023] TASSC 3 demonstrates the continuing trend of courts to award survivors of historical sexual abuse significant damages.
In the 1980s Steen, when aged between 9 and 16 was abused by Reverend Louis Daniels who ran Church of England Boys Society activities.
The Anglican church was aware of complaints against Daniels but took until 2002 to strip him of holy orders. The church’s knowledge would have prevented Steen from being abused because it could have removed Daniels from ministry and CEBS activities at a much earlier time.
Steen made a claim for damages for the abuse by Daniels, which settled in 1994 with Daniels paying $34,000 and the church paying nothing although the church demanded confidentiality about the settlement.
He made another claim against the church in 2022 seeking damages including for economic loss and exemplary and aggravated damages.
The church admitted the claim but argued that the 1994 settlement acted as a complete bar. The court disposed of that argument by finding that it was open to the church on what it knew in 1994 to admit liability so that it was in the interests of justice now that the 1994 settlement be set aside. Steen’s alternative argument that the deed should be set aside for fraudulent misrepresentation and unconscionability did not succeed because although the church knew of Daniels’ propensities it did not mislead or induce Steen into settling in 1994.
Steen had a successful academic career and unlike many abuse survivors had had a settled and happy family life. Despite these he claimed substantial general damages and economic loss damages.
The court awarded him $275,000.00 for general damages accepting that the psychological impact of the abuse was still ‘raw’.
In his economic loss claim the court assessed damages on the basis that any loss was to be assessed on his career as an academic, where it was accepted that the effect of the abuse had delayed his studies and promotion despite the fact that he had 2 PhDs.
Steen claimed and produced expert evidence that but for the abuse he would have become a geologist but the court rejected this speculative basis upon which to assess economic loss because Steen and his lay witnesses gave little if any evidence that convinced the court that he had more than a 20% chance in becoming a geologist. Despite this finding the court still awarded him economic loss damages of $1.688 million including for the value of lost superannuation.
Aggravated and exemplary damages were awarded totalling $225,000.00 largely arising from the twin facts that the church knew about Daniels and did nothing to stop him and Steen being shocked to discover through the royal commission just how much the church knew about him.
The overall effect of the judgment was to award Steen nearly $2.4 million in damages, continuing the trend that courts have demonstrated that plaintiffs who succeed are entitled to 7 figure sums as matter of course. The one ‘brake’ was the court’s rejection of a speculative basis for the assessment of economic loss reflecting a view expressed in ZYX (pseudonym initials) v Cable [No 5] [2023] WADC 61.