Compensation claims largely deal with injuries and losses caused by accidents, mistakes, slips and errors. These might include worker's compensation claims, TAC road accident claims, medical negligence, and public liability claims. But what about compensation for losses and injuries that have been caused by someone deliberately? In this article, we look at compensation options for people injured in circumstances of family violence.
Very few cases involve an employer, doctor or motorist setting out to intentionally injure someone else. For this reason, the vast majority of personal injury claims for compensation revolve around the concept of "negligence"; that is, someone else caused the injuries.
We've previously explored the way that the law of compensation in Victoria deals with assaults in public places and where the perpetrator is a stranger. But what happens when an assault takes place in, for example, a private home and the perpetrator is intimately known to the victim?
CAN YOU SUE YOUR EX-PARTNER FOR CAUSING YOU INJURY AS A RESULT OF FAMILY VIOLENCE?
The answer does not necessarily depend on the perpetrator being charged or convicted of a criminal offence. The most famous example of this comes from the United States - where OJ Simpson was found not guilty of murdering his former partner and her lover, but was subsequently held civilly liable to pay damages to the families of the deceased.
Two recent decisions from NSW and Queensland remind us that a perpetrator can also be liable to pay damages (compensation) to the survivor of an assault or abuse which occurred during or after an intimate relationship. These cases also highlight why such claims remain rare in Australian courts.
GARDINER V DOERR: EX-WIFE SUES FORMER PARTNER AND IS AWARDED $967,113.40 COMPENSATION
In November 2022, the Queensland Supreme Court handed down a decision which highlights the way in which a perpetrator can be held civilly liable for assault and other criminal acts that cause injury or loss to another person.
Caitlin Gardiner and James Doerr were married for over 15 years.
Their relationship began to deteriorate between 2000 and 2004. They separated permanently and acrimoniously in September 2013.
Ms Gardiner sought compensation after alleging that she was assaulted by Mr Doerr shortly after the end of their relationship in December 2013.
Confusingly, an "assault" in criminal law is called a "battery" in the law of compensation. For the rest of this article, I will refer to the alleged assault as a "battery".
She alleged that Mr Doerr broke into her home while she was sleeping and physically attacked her, causing her ongoing psychiatric injuries.
Mr Doerr denied that the alleged battery occurred, or that if it did occur, he was not involved.
In criminal proceedings following the alleged battery, Mr Doerr was acquitted after a trial in the District Court.
However, criminal convictions are not required in order to find Mr Doerr liable to pay compensation in a civil claim.
The evidentiary burden in a criminal case is that the prosecution needs to prove that something occurred "beyond a reasonable doubt".
In a civil claim, a Court only needs to be satisfied "on the balance of probabilities", or on the basis that something occurred "more likely than not".
In this case, the facts of the alleged battery and the sequence of events, before and after it, were strongly contested by both parties.
In order for Ms Gardiner to be successful in her compensation claim, she needed to prove that, on the balance of probabilities:
- Mr Doerr committed an intentional or negligent act; which
- immediately or directly caused physical contact with Ms Gardiner; and
- that the contact was likely to cause injury or affront.
The Queensland Supreme Court ultimately found that, on the balance of probabilities, each of these elements was established, and found that Mr Doerr broke into Ms Gardiner's home and attacked Ms Gardiner. The Court determined that Mr Doerr committed the alleged battery, and that as a result he was liable to pay compensation to Ms Gardiner for her losses and injuries arising from the battery.
The Court awarded compensation to Ms Gardiner in the amount of $967,113.40. The compensation included awards for pain and suffering, past and future income loss, exemplary and aggravated damages, and past and future medical and care expenses.
WILDEN V JENNINGS: WILDEN SUES FORMER PARTNER AND IS AWARDED $325,000 COMPENSATION
Ms Wilden and Mr Jennings were in a relationship between 2010 and 2016. Ms Wilden alleged that while living together, Mr Jennings had sexual intercourse with Ms Wilden without her consent on a number of occasions.
Mr Jennings contested the allegations and staunchly defended the claim for compensation made against him by Ms Wilden.
The Court found in favour of Ms Wilden, and awarded damages which included compensation for pain and suffering in the amount of $200,000, as well as aggravated and exemplary damages totalling $125,000.
WHY AREN'T WE SEEING MORE COMPENSATION CASES AFTER FAMILY VIOLENCE?
Given the unfortunate prevalence of family violence that persists in our communities, you might expect claims for compensation, such as those in Gardiner and Wilden, to be more common.
After all, the law of intentional torts, such as for assault and battery, apply to physical and psychiatric injuries caused by strangers just the same as those caused by family members or people in intimate relationships. Whether you injure a stranger negligently or cause injury to a family member deliberately, you can be liable for the losses and injuries which you have caused by your acts.
However, there are a number of legal and personal barriers, which mean that cases such as these are rarely seen in Australian Courts.
The first hurdle is who pays an award of compensation in family violence cases if a survivor is successful?
If you injure someone while driving, say by failing to give way at an intersection, CTP insurance is highly likely to cover you in relation to a civil claim (a TAC common law claim) made by the injured victim of your negligence.
However, a claim made in relation to an assault or battery committed by a family member is highly unlikely to be covered by any kind of insurance - meaning that any successful claim for compensation against the perpetrator of family violence is likely to be payable from the perpetrator's own assets.
And if the perpetrator has no assets from which to pay damages awarded to a victim, while a victims of crime application is possible, there can be no viable claim for compensation against the perpetrator directly.
Even if the perpetrator has assets to satisfy a claim against them, a claim for compensation may not be one that a survivor wants to pursue.
Claims by survivors of family violence against perpetrators remain relatively rare.
Survivors of family violence or assaults committed by family members might be understandably reluctant to relive the trauma of their experiences by pursuing a civil claim for damages, particularly if it ends up in Court. Others may be concerned that bringing a civil claim will mean that they are brought back into contact with their abuser for a period of months or years while the litigation is ongoing.
Others may have experienced protracted, gruelling and costly family law litigation and might be reluctant to once again submit their personal and relationship histories to lawyers, Courts, and their abusers.
ALTHOUGH DIFFICULT, OPTIONS FOR COMPENSATION AFTER FAMILY VIOLENCE IS POSSIBLE
The cases of Wilden and Gardiner show that, despite the obstacles and huge personal cost, there are people of incredible courage prepared to do whatever it takes to hold their abusers to account.
That choice is not one that every survivor can make, and the course of litigation can be a long and difficult one.
Whatever choice is made by survivors of family violence, it is important that they are aware of the legal options available to them to hold perpetrators to account.