Legal: Former student awarded damages against teacher abuser

On 20 July 2015, a New South Wales Supreme Court judge awarded a former student damages of $1.228 million against her former teacher for sexual abuse.

This is an important reminder that improper conduct can lead not only to criminal, professional registration and employer disciplinary proceedings, but also to an obligation on the perpetrator to pay compensatory damages. Sexual abuse can have very severe effects which are enduring, and thus damages can be very substantial indeed.

A teacher perpetrator may become liable either by being sued directly (as here) by the former student, or, where liability is established against the educational employer (often quite difficult to do), the educational employer can claim contribution or indemnity from the teacher abuser.

In this case, the claims arose out of events that occurred in a period from 2001 until 2008. The defendant was the plaintiff’s teacher between 2001 and September 2003. By the time of trial, the defendant was no longer involved in the proceedings. The defendant had been charged with two counts of aggravated indecent assault of the plaintiff, who was 14 and 15 years of age at the relevant times, and four counts of unlawful sexual intercourse, three when she was 14 and four when she was 15. He pleaded guilty to those offences and was sentenced to a term of imprisonment. The sexual interaction occurred for some years after the ending of the teacher/student relationship and continued when the student was over the age of 16 years. On two occasions the student had abortions. The plaintiff’s claim was brought in personal trespass. As to the facts of the abuse, the evidence of the plaintiff was accepted and the judge then assessed damages.

In this context, an interesting feature of the case relates to the events which occurred after the 16th birthday of the plaintiff. The judge noted that, in respect of events occurring after the 16th birthday, consent would be a defence to assault, the onus of proving that being on the defendant. The judge noted that the defendant “…has neither alleged nor proved consent. However, as he did not appear at the hearing, I propose to assess the question in light of the plaintiff’s evidence”.

The judge said as follows: “The evidence established that while the plaintiff was still a minor and a pupil in the defendant’s class, he abused his position of trust and authority. He groomed her and then exploited and corrupted her for his own sexual needs and desires. In these circumstances I consider that it would be unreal to regard her as being able to form a judgment in her own interests whether to consent to his advances merely because she had reached the biological marker that legally corresponded with adulthood. Indeed, I consider that the effect of his prior conduct was to deprive her of the power to object, in any substantial way, to his assaults on her. She was, in my view, doing no more than submitting to his acts in circumstances where he had deprived her of the ability to resist.”

This of course resonates with established employer discipline and professional registration principles, namely that the power imbalance established during the teacher/student relationship continues for some period of time after the formal ending of the teacher/student relationship. This is particularly so in a case like this, where the power of the teacher over the student had been increased by the exploitation of that power to establish an utterly inappropriate sexual relationship.

The judge looked at a range of issues, including general damages, out of pocket expenses, future out of pocket expenses, past loss of earning capacity and future loss of earning capacity, and ultimately assessed damages at $1.228 million dollars.

This case is an important reminder of the personal consequences in terms of an obligation to pay compensatory damages which can result from sexual abuse (and indeed other forms of abuse). Whether or not the employer is liable, the perpetrator always is.

Andrew Knott                                                                                                                   Holding Redlich Lawyers

Queensland Teachers' Journal, Vol 121 No 5, 15 July 2016, p29