Bridging the gap: SA Court looks to other states for fairer damages in sexual abuse cases

In what legal experts are calling a turning point for victims of sexual abuse, the Supreme Court of South Australia has delivered a judgment that may reshape how general damages and trauma compensation for psychiatric harm are awarded in the state.

The decision in B P v K R & ANOR [2025] SASC 58, handed down by the Honourable Auxiliary Associate Justice Costello, awarded a survivor of childhood sexual abuse $400,000 in general damages, which is four times higher than the state’s previous benchmark of $100,000 set in 2019.

While the judgment does not formally declare a wholesale adoption of interstate approaches, Justice Costello’s reasoning shows a clear willingness to move South Australian practice closer to national trends, recognising the importance of consistency and fairness in compensating survivors of abuse.

What are ‘General Damages’ or ‘Damages for Non-Economic Loss’?

General damages, sometimes called damages for non-economic loss, are the law's attempt to monetary value the immeasurable: the pain, suffering, and loss of enjoyment of life that a person experiences due to wrongdoing.

Unlike specific financial losses (like medical bills or lost wages, known as economic loss), general damages address these intangible wounds. In cases of child (and adult) sexual abuse, lives are often devastated from a young age, and recognising this harm means acknowledging the profound psychological and emotional scars that can endure for a lifetime.

What's the issue about "Fairness"?

For years, there's been a recognised tension in how different Australian states assess general damages—the compensation awarded for non-economic losses like pain, suffering, and loss of enjoyment of life.

What might be considered a fair amount in Victoria or New South Wales could differ significantly, and it has typically been lower in South Australia. This has left legal professionals and, more importantly, plaintiffs feeling like the scales of justice weren't quite balanced across the nation.

Other Australian states have increasingly emphasised the need for greater national consistency in these awards, looking to comparable cases and broader trends to ensure fairer outcomes for individuals who have suffered similar harm, regardless of where they live.

The SA Court's nod to interstate trends

In B P v K R & ANOR [2025] SASC 58, while ultimately assessing damages based on South Australian common law principles (due to the Civil Liability Act not applying to intentional torts), Justice Costello’s reasoning went well beyond local precedent. The judgment makes clear that recent decisions from other Australian jurisdictions were not merely noted in passing but used deliberately as a “yardstick” and a “check” on what an appropriate and fair award should be.

This marks a notable shift: South Australia is beginning to align more closely with the approach taken in states such as Victoria and New South Wales, where courts have emphasised fair, consistent compensation for victims of abuse suffering similar harm.

Why this matters for South Australia

This open engagement approach with interstate trends has the potential to be transformative for this area of litigation in South Australia:

• Increased predictability: Referencing established trends in other jurisdictions could lead to greater predictability in fair compensation for survivors, making it easier for legal professionals to advise their clients.
• National consistency: The decision potentially marks the beginning of a broader shift towards greater national consistency in how general damages are assessed, fostering a fairer legal landscape across Australia.

A careful balancing act

Importantly, the South Australian court was clear that it is not simply adopting interstate decisions.

Each assessment will remain firmly grounded in South Australia law and the specific facts of each case. However, the willingness to actively draw guidance from comparable cases interstate shows a significant step towards more consistent and equitable outcomes for survivors.

A step towards fairer outcomes for survivors

For many survivors and their advocates, B P v K R & ANOR represents more than just a larger payout. It marks a powerful judicial acknowledgment that past awards in South Australia have not always matched the realities of the harm inflicted. It proves that it’s more than just a case about historical sexual abuse; it could be a pivotal moment in South Australian jurisprudence.

By openly engaging with the general ideas of fairness championed in other states regarding general damages, the court has potentially laid the groundwork for a more consistent and equitable approach to compensating victims of abuse in the future.

While each case will always turn on its own facts, this shift offers renewed hope for survivors seeking recognition and fair compensation for the profound harm they have endured. It is a development that both practitioners and claimants should watch closely as this area of the law continues to evolve.

If you're a survivor of childhood abuse, we know that no amount of compensation can take away the pain caused. Our experienced, trauma-informed lawyers are here to support you and help you get the justice you deserve. You are not alone. Reach out to us for a confidential discussion to find out what options are available to you.