I introduction

D Aggravated and Exemplary Damages Should Be Available in Child Sexual Abuse Cases
Consideration should be given to the availability of aggravated and exemplary damages for several reasons. Child sexual abuse is an egregious abuse of human rights.¹⁷⁷ The conduct of perpetrators and those institutions that took few if any precautions against abuse, and in many instances ignored credible reports of abuse, was reprehensible, with the gravest consequences for victims. The common law courts have long recognised that a ‘right must be supported by an effective sanction’.¹⁷⁸
Survivors are able to pursue aggravated and exemplary damages awards in trespass to person claims for sexual battery and other intentional torts against perpetrators. Though without statutory reform, aggravated and exemplary damages will not ordinarily be available in some states against institutional defendants where the cause of action is in the tort of negligence, because of tort reform legislation.¹⁷⁹
Aggravated damages are a form of general damages awarded as compensation for ‘high-handed, malicious, insulting or oppressive’¹⁸⁰ treatment or victimisation by humiliation¹⁸¹ or emotional distress.¹⁸² Aggravated damages are provided as compensation for intangible as well as substantive injury caused by the circumstances and manner of the defendant’s wrongdoing.¹⁸³ Exemplary damages are punitive in nature. Whereas aggravated damages focus on factors such as humiliation, embarrassment, shame, and emotional distress of the plaintiff, exemplary damages focus on the culpable behaviour of the defendant and are awarded as punishment, retribution and deterrence.¹⁸⁴ Exemplary damages may be awarded where a defendant’s conduct is ‘high-handed, insolent, vindictive or malicious’ or where the defendant has displayed a ‘contumelious disregard of the plaintiff’s rights’.¹⁸⁵ The sexual abuse of a child in an institution is such a grievous human rights abuse that common law principles might very often indicate the imposition of punitive damages. Exemplary damages have been awarded in many different tortious causes of action in Australia including in cases of battery¹⁸⁶ and false imprisonment.¹⁸⁷ The High Court has held that an award of both aggravated and exemplary damages is allowable and does not constitute a ‘double punishment’ where the quantum of each is not disproportionate, because the two are different in kind.¹⁸⁸
The High Court has explicitly held that the purpose of exemplary damages is to punish and deter a defendant.¹⁸⁹ Accordingly, an award of exemplary damages may not be made where a defendant has already been convicted and subjected to a ‘substantial’ punishment for a criminal offence arising from the same conduct for which exemplary damages are sought. That would be a double punishment.¹⁹⁰ The situation is uncertain, however, where there is only the possibility of later criminal prosecution which has not been commenced or where a prosecution is not concluded at the time of a civil trial. There is also the possibility that a civil court might consider whether a non-custodial sentence is ‘substantial’ so as to preclude the imposition of an exemplary damages award.¹⁹¹ Justice Kirby has held that an award of exemplary damages is discretionary so that a criminal conviction does not automatically bar an award. It must however be taken into account given that the object of exemplary damages is to punish a defendant.¹⁹²
Where an institutional defendant is vicariously liable for the deliberate tortious conduct of the perpetrator, exemplary and aggravated damages should, on current authority, be available against the institution in most states.¹⁹³ However, such damages will not be available against institutional defendants in respect of negligence liability. Legislative reform allowing an award of aggravated and/or exemplary damages on common law principles against institutions in cases of negligently inflicted child sexual abuse would be necessary given the present restrictions under state legislation.
Whether it would be appropriate to legislate retrospectively to enable the award of aggravated and exemplary damages on common law principles for past abuse claims in the tort of negligence is a difficult question. To do so would increase potential liability of institutions very significantly where the number of maintainable claims would increase in the event that suggested reforms regarding abolition of limitation periods and identification of defendants were implemented. The possibility of such damages awards in respect of future cases would be a powerful deterrent and incentive for institutions to ensure as far as possible that future child sexual abuse does not occur.