Keep up to date with the latest news and developments in insurance law, by subscribing to our blog, InDefence.

  • This field is for validation purposes and should be left unchanged.

Worker awarded >$600k for sexual assault by manager

Case note: Moon v Whitehead [2015] ACTCA 17

Sexual Assault by Boss – Compensation for Sexual Assault – Compensation for Stress – Compensation for Mental Illness

Facts

Ms Sharon Whitehead, aged 39 (Whitehead) brought a claim for damages for trespass to the person against her supervisor at the Child Support Agency, Mr Michael Moon, aged 47 (Moon).  Whitehead alleged that she was sexually assaulted by Moon in a serviced apartment, while the pair were visiting Sydney for a work conference.

Whitehead’s claim for workers’ compensation benefits was rejected, so she pursued Moon personally.  The Supreme Court of the Australian Capital Territory (ACT) applied New South Wales law in deciding the case.

When Whitehead and Moon visited Sydney in 2007, a two bedroom, two bathroom apartment was booked, with Whitehead’s agreement.  On their first night in Sydney, the pair went out for coffee and visited three sex shops.  They then returned to the apartment separately.

When Whitehead returned to the apartment, she heard Moon’s shower running.  She decided to have a shower in her own bathroom.  While she was in the shower, Moon came in and asked if she needed help with the soap.  She told him to get out.  After she finished, she walked past his room in her pyjamas and he was naked on his bed.  Moon later entered her room, when she was in bed and her lights were out.  She asked him to leave.  He refused to leave until she kissed him.  She did so and intercourse followed.

Moon defended the claim on the basis that he had a physical relationship with Whitehead prior to the date of the alleged assault and that she had “frequently requested and/or consented to him [sic] contacting her person”.  The pair had previously engaged in sexual activity but not intercourse.

Following the incident, Whitehead suffered significant bleeding and pain.  She subsequently suffered a psychiatric illness and became suicidal.

It was Whitehead’s case that she had made known to Moon that she was not consenting to sexual intercourse, but that she stopped protesting when he did not desist because she was scared of him and concerned about any impact rejecting the appellant would have on her employment.

She was awarded $678,000 by the Supreme Court of the ACT.  Moon appealed to the Court of Appeal, on liability and quantum.

Issue

Moon set out a number of grounds of appeal.  However, the judgment concentrated on the question of consent.  Moon submitted that it was necessary for the state of mind of both participants to be taken into account, in determining the issue of consent.  The award by the Master for aggravated damages was also in issue.

Findings

In a judgment delivered on 22 May 2015, the ACT Court of Appeal found as follows:

  1. The real issue was a narrow one – whether Whitehead had consented to engaging in sexual conduct.
  2. There was ample evidence for the Master to find that Whitehead had not consented to intercourse.
  3. The test put forward by Moon for considering the question of consent was not supported by any authorities.
  4. A defence of ‘innocent mistake’ was irreconcilable with an intentional tort such as battery.
  5. The appeal was upheld in respect of the award for aggravated damages because Whitehead had not sought aggravated damages in final submissions at the hearing.  The damages award was reduced to $668,000.

Considerations

This case will be of particular interest to those working in the area of employment law.  It highlights a view taken by the ACT Courts that, despite a plaintiff’s actions, there is no substitute for consent and that consent should be clearly given.

BOOK A FREE CONSULTATION for advice and information about a workers’ compensation matter or sexual assault by calling (07) 3067 3025 or contact us online.

Contact us

Contact Form

  • This field is for validation purposes and should be left unchanged.

 

 

 

Kate Denning

Kate Denning is the Founder & Principal of Denning Insurance Law. Kate opened her own practice out of a desire to deliver high value, specialised legal services. Kate has been practising as a solicitor in Queensland for over 15 years. Her passion for delivering great results, approachable manner and breadth of experience, set her apart from her competitors.

Kate DenningWorker awarded >$600k for sexual assault by manager

Related News

InDefence covers legal and technical issues in a general way. Changes in circumstances or the law may affect the completeness or accuracy of the information published. InDefence is not designed to express opinions on specific cases, to provide legal advice or to establish a relationship of client and lawyer between Denning Insurance Law and the reader, or any third party. No person should act or refrain from acting solely on the basis of this publication. You should seek legal advice particular to your circumstances before taking action on any issue dealt with in this blog.