I introduction

C Restrictions on Damages
Civil liability legislation imposes severe limitations on personal injury damages. The legislation excludes certain causes of action¹⁶⁹ and in New South Wales for example, the exclusions include cases where liability arises from ‘an intentional act that is done by the person with the intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person’.¹⁷⁰ So in New South Wales, a plaintiff’s claim in respect of a sexual battery against a perpetrator will not be subject to the very significant restrictions on personal injury compensatory damages imposed by Part 2 of the New South Wales Act or the prohibition on the award of exemplary, punitive and aggravated damages in section 21 of the New South Wales legislation which applies in respect of negligent conduct alone. In Tasmania, Victoria and Western Australia the position is similar to that in New South Wales.¹⁷¹
An important issue is whether the restrictions imposed by the legislation would apply in a case where an institutional defendant is sued on the basis that it is vicariously liable for a deliberate sexual battery committed by another. A claim against that other person is clearly excluded from the operation of the legislation in New South Wales by virtue of section 3B(1)(a). The wording of the section might suggest that only the liability of the perpetrator is excluded because of the reference to ‘an intentional act that is done by the person … that is sexual assault committed by the person’.¹⁷² The New South Wales Court of Appeal interpreted the section in Zorom Enterprises Pty Ltd v Zabow¹⁷³ and held that section 3B(1) ‘does not differentiate in its operation between direct and vicarious liability’ and applies to exclude the operation of the Civil Liability Act 2002 (NSW) where a defendant is vicariously liable for the intentional tort of an employee.¹⁷⁴ The position in other Australian jurisdictions may remain somewhat uncertain.
In a negligence claim for breach of a duty of care by a survivor against an institutional defendant, the substantial restrictions on personal injury compensatory damages imposed by the civil liability legislation would apply. Various Australian jurisdictions restrict compensatory damages by imposing caps on damages for economic and non-economic loss, gratuitous services, and interest as well as thresholds for general damages.¹⁷⁵ These would produce major inconsistencies and inequality resulting in under-compensation in many cases and differential compensation among survivors across Australia.¹⁷⁶ The problem would be obviated by a clear statutory statement to the effect that a relevant state or territory civil liability enactment will not apply in respect of any claim (be it in trespass to person, negligence, or any other cause of action) for damages by survivors of institutional child sexual abuse. Common law principles concerning assessment of damages should apply to these cases.