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Child sex offender fails in bid to quash damages judgment

Jonathan Cumberbatch (Photograph supplied)

A convicted child sex offender has lost an attempt to overturn a civil court ruling against him for the damage done to his victims.

Jonathan Cumberbatch, 58, argued he was not responsible for the lasting psychological harm suffered by his victims and their mother.

But Chief Justice Narinder Hargun, in a written judgment dated November 10, said Cumberbatch’s argument had no reasonable chance of success.

Mr Justice Hargun wrote: “There is no reason to doubt that each minor plaintiff received extensive psychological treatment with psychotropic medications and counselling.

“In the circumstances, it is difficult to sustain the argument that the actions of the defendant complained of did not ’materially contribute’ to the harm suffered by the plaintiffs.”

Cumberbatch was sentenced to12 years behind bars in 2010 after he admitted one count of sexual assault and three counts of the sexual exploitation of a young person while in a position of trust.

All of the offences took place in his home in 2008 and all three victims were under the age of 14 at the time.

The victims and their mother, who cannot be identified for legal reasons, filed a civil action against Cumberbatch in 2014.

The family told the Supreme Court that they had suffered injury, loss and damage and the three children needed extensive psychological treatment.

Cumberbatch, who was released in 2018, was still behind bars at Westgate when the civil suit was filed.

He received a writ of summons, but did not attend the Supreme Court hearing.

Then-Chief Justice Ian Kawaley granted a judgment in the victim’s favour, without Cumberbatch’s presence, with damages to be assessed.

The Supreme Court heard Cumberbatch did not know about the default judgment against him and that he believed the case would not go ahead without his presence in court.

He was told of the judgment when he was released, and launched an appeal to overturn it.

Cumberbatch claimed the decision should be quashed because his actions “did not cause or materially contribute to the damage which the plaintiffs have claimed they suffered”.

Mr Justice Hargun said: “The primary argument advanced by the defendant is that whatever psychological damage the plaintiffs complain of in the statement of claim, it was not caused by the defendant’s actions and behaviour.

“Counsel for the defendant submits that the minor plaintiffs were already so damaged that the defendant’s actions did not materially contribute to the damage set out in the statement of claim.”

Elizabeth Christopher, who represented Cumberbatch at the hearing, highlighted psychological reports that said the victims had suffered other abuse which did not involve Cumberbatch.

But the said in affidavits that they continued to suffer “emotional and psychological stress” because of the sexual abuse by Cumberbatch.

Mr Hargun said it was not uncommon for the victims of abuse to have underlying vulnerabilities and that there may be other contributory factors.

But he added it was reasonably clear that the abuse caused a “complete fracture of the family unit” and the children were sent to specialist centres.

Mr Hargun said: “It seems to me that the defendant’s reliance upon any pre-existing vulnerability of the minor plaintiffs to the harm complained of and the other facts relied upon are relevant, if at all, to the issue of apportionment of damages.

“Without expressing a concluded view, it may well be open to the defendant to raise those issues in the context of determination of damages.”

Mr Hargun added that to set aside the default judgment against him, Cumberbatch had to prove he had a realistic chance of success, but had failed to do so.

He said: “The burden is ordinarily discharged by the defendant filing credible affidavit evidence demonstrating a real likelihood that he will succeed in his defence.

“In all the circumstances, I have come to the view that the defendant has not discharged the burden of proof of establishing that he has a realistic prospect of success on the issue of liability.“

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