A v B

[2021] NSWDC 491

District Court

New South Wales

Medium Neutral Citation:

A v B [2021] NSWDC 491

Hearing dates:

10-14 May 2021; 15 June 2021 (written submissions); 9 July 2021 (written submissions); 20 August 2021 (oral submissions)

Date of orders:

15 September 2021

Decision date:

15 September 2021

Jurisdiction:

Civil

Before:

Dicker SC DCJ

Decision:

(1) Judgment for the defendant against the plaintiff.

(2) The plaintiff is to pay the defendant's costs of the proceedings as agreed or assessed.

(3) Liberty to the parties to seek a different costs order to that in (2) above within 14 days.

Catchwords:

TORTS – intentional torts – battery – personal injury – psychiatric injury – historic sexual assault alleged – damages sought for battery and psychiatric injury and consequential loss – whether the plaintiff consented to the activity in question – whether the account of the plaintiff should be accepted on the balance of probabilities

Legislation Cited:

Civil Liability Act 2002 (NSW)

Evidence Act 1995 (NSW)

Cases Cited:

BriginshawvBriginshaw (1938) 60 CLR 336

Croucher v Cachia [2016] NSWCA 132

Cubillo v Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1

Danckertv Tonkin [2015] NSWSC 1570

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Gautem v Health Care Complaints Commission [2021] NSWCA 85

Gersbach v Gersbach [2018] NSWSC 1685

Gorman v McKnight [2020] NSWCA 20

KS v GR [2020] NSWDC 73

Kumar v Legal Services Commissioner [2015] NSWCA 161

Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1

MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 657

MC v Morris [2019] NSWSC 1326

Musa v Alzreaiawi [2021] NSWCA 12

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; [1992] HCA 66

Nguyen v Tran [2018] NSWCA 215

Perpetual Trustees Victoria Ltdv Cox [2014] NSWCA 328

Sangha v Baxter [2009] NSWCA 78

State of New South Wales v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496

Watson v Foxman (1995) 49 NSWLR 315

White v Johnston (2015) 87 NSWLR 779; [2015] NSWCA 18

Category:

Principal judgment

Parties:

Mrs A (Plaintiff)
Mr B (Defendant)

Representation:

Counsel:
K Andrews (Plaintiff)
J Sleight (Defendant)

Solicitors:
Wyatts Lawyers (Plaintiff)
Arcuri Lawyers (Defendant)

File Number(s):

2018/00258374

Publication restriction:

All information tending to reveal the identity of the plaintiff and the defendant in the proceedings is not to be published pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) on the basis that the public interest for the order significantly outweighs the public interest in open justice.

Judgment

1. In these proceedings, the plaintiff, Mrs A, sues the defendant, Mr B, in the tort of battery relating to a battery through an alleged rape committed by the defendant on the plaintiff in 1972. At that time, the plaintiff was 16 years of age and the defendant was 19 years of age. The defendant denies that there was any battery and asserts that any conduct of a sexual nature with the plaintiff was consensual. The circumstances of what occurred on the particular evening in question are heavily in dispute.

2. The primary issue for the court to determine is whether the plaintiff’s account of the events of the particular evening in 1972 should be accepted having regard to all of the evidence.

3. The only expert evidence before the court expresses the opinion that the plaintiff currently has post-traumatic stress disorder (PTSD) and generalised anxiety disorder. Previously, the plaintiff had been diagnosed by various psychologists and psychiatrists with an adjustment disorder, anxiety and depression as well as PTSD. The plaintiff currently takes, and has for a number of years taken, prescription medication for her condition.

4. The plaintiff seeks damages for the tort alleged. It is accepted by the parties that a battery involving sexual assault is to be determined in accordance with the common law and the Civil Liability Act 2002 (NSW) does not apply: see s 3B(1)(a) of the Civil Liability Act 2002 (“CLA”); Gersbach v Gersbach [2018] NSWSC 1685 at [480]; MC v Morris [2019] NSWSC 1326 at [1]. Although the tort of battery may be committed either intentionally or alternatively merely negligently, what is alleged in the present case is an intentional battery: see Croucher v Cachia [2016] NSWCA 132 at [34].

The pleadings

5. The plaintiff brings her claim by an Amended Statement of Claim filed on 18 September 2018. The plaintiff alleges conduct on a date between 1 July 1972 and 31 December 1972: paragraph 5. It is alleged that the defendant insisted that the plaintiff go for a drive with him. It is pleaded that the defendant stopped the car and opened the plaintiff’s passenger side door. Paragraph 10 of the Amended Statement of Claim provides: “The defendant thereafter assaulted and/or sexually abused the plaintiff by without her consent having sexual intercourse with her”. By a Statement of Particulars filed on 22 August 2018, the plaintiff particularises PTSD, depression and anxiety and a reduction in her ability to engage in various activities.

6. By a Defence filed on 21 December 2018, the defendant says that he does recall a sexual incident involving the plaintiff in October/November 1972. In paragraph 6, the defendant pleads that he denies the allegation of the plaintiff and says that the plaintiff was actively involved and consented to sexual activity which took place. The defendant pleads that he immediately ceased his activity upon the plaintiff requesting that the defendant stop. Sexual abuse is denied (paragraph 7) and it is pleaded that prior to the date of the incident, the plaintiff attended at the defendant’s property whilst he was at his residence alone on no less than 12 to 15 occasions where the defendant and the plaintiff participated in sexual activity. It is also pleaded that after the incident, the plaintiff continued to be friendly with the defendant and invited the defendant to her wedding.

7. The Court made an order that all information tending to reveal the identity of the plaintiff and the defendant in the proceedings is not to be published pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) on the basis that the public interest for the order significantly outweighs the public interest in open justice.

The plaintiff’s oral evidence

Evidence in chief

8. The plaintiff was shown the chronology which is Exhibit B in the proceedings and confirmed that what was set out in the chronology was true and correct. The plaintiff indicated that her surname prior to her marriage was J.

9. The plaintiff gave evidence that she was born in June 195x and attended schooling including high schooling in K in New South Wales. Exhibit B indicates that the plaintiff finished her schooling in Year 10 prior to moving to Sydney and obtaining employment at the M Bank.

10. The plaintiff gave evidence that prior to 17 June 1972 she worked in a supermarket as a checkout operator on weekends. The plaintiff stated that she “probably” stopped with this job prior to 17 June 1972.

11. The plaintiff gave evidence that she undertook L as a sport and that all her siblings were involved in L.

12. The plaintiff stated that others in K were involved with L as a sport [confidential].

13. The plaintiff indicated that she knew the defendant prior to June 1972 through L sport [confidential]. Later evidence established that the defendant was a friend of her family particularly her older brother.

14. The plaintiff indicated that prior to 1972 she had not been involved in a sexual relationship. She said that prior to 1972 she had not had a boyfriend. However, the plaintiff gave evidence that prior to June 1972 she was seeing a Mr N. The plaintiff stated that he lived in P and she saw him on a number of occasions. Mr N was the brother-in-law of the defendant. On one occasion the defendant and his wife took the plaintiff to P to see Mr N for the day. On another occasion, Mr N picked the plaintiff up in his car and drove to the defendant’s house where the plaintiff had been invited to lunch with the defendant, his wife and Mr N. The first occasion that the plaintiff had gone out with Mr N was close to her sixteenth birthday: T26.39.

15. The plaintiff gave evidence that at the time she was living with her family at xxx Street in K. She stated that she was residing there with her mother and father, her two brothers and her sister. She stated that prior to June 1972, the defendant had come to her house on many social occasions, particularly to see her brothers. In addition, the plaintiff gave evidence of having contact with the defendant on a number of occasions prior to the alleged incident the subject of the proceedings. On one occasion, she went to the defendant’s house to babysit his xx month old child. Only the plaintiff and the child were present on this occasion. On another occasion, when the plaintiff was 14, the defendant came to her house to ask whether she was attending a party. The plaintiff attended the party with her brother and met up with the defendant at the party but the plaintiff went home in the presence of her brother.

16. On a third occasion, the plaintiff said the defendant came to the plaintiff’s house and asked her to go to the local pool. The plaintiff asked her parents for permission and she went to the pool by herself. The plaintiff saw the defendant at the pool. The plaintiff said that she left the pool to walk home, the defendant had contact with her and asked her to “go behind a brick wall” with him which she did. At that time, the plaintiff said the defendant kissed her and tried to pull down the bottom of the plaintiff’s swimming costume but she became angry and left and continued home. On yet another occasion, the defendant came to the plaintiff’s house when she was home undertaking cleaning. The plaintiff claims that she was led to her parents’ bedroom by the defendant who kissed her and leant back with her on her parents’ bed. On that occasion a conversation was stated to have occurred where the defendant allegedly said, “Oh no... It’s all over you”. The plaintiff noted that there was “creamy white stuff” on her skirt and she was not sure what it was. The plaintiff said that she and the defendant were both wearing clothes on that occasion: T32.18. The plaintiff gave evidence that prior to the alleged assault in 1972 she had never seen a male naked.

17. The plaintiff then gave evidence about the alleged incident the subject of the proceedings. The plaintiff said that this occurred during the September school holidays in 1972. Newspaper evidence before the court suggested that the September school holidays in New South Wales in 1972 ran from 24 August 1972 to 11 September 1972: Exhibit A pages 133-134.

18. The plaintiff gave evidence that she saw the defendant on that occasion when he knocked on the door of her house at about 8pm: T32.31. The plaintiff recounted a conversation which she had with the defendant in which he said that he wanted to talk to her about something important. Although the plaintiff initially resisted going with the defendant because she said she was not feeling well, the plaintiff claims that the defendant took her by the arm and led her to the car: T33.17. The plaintiff indicated that at the time she was wearing a pink dress with a white collar, underpants under the dress but no shoes. The plaintiff was directed to the passenger seat in the front of the car. The defendant then drove the vehicle for a few minutes to a dirt road behind a number of silos where he stopped the vehicle. The plaintiff said that there were no houses there and it was near a railway line. The plaintiff stated that the defendant got out of the car and went around and opened the passenger door of the vehicle.

19. The plaintiff gave evidence that the defendant pushed the plaintiff down by her shoulders so that she was lying across the passenger and driver’s seats of the vehicle: T34.45. She then claimed that the defendant held her arms by the wrists with his right hand above her head, pulled her underpants partly down with his left hand and sexually assaulted her: T35.1-36.35. The plaintiff claimed that she told the defendant to stop and that she did not wish to undertake in the activity but he proceeded with the assault. During the course of the alleged assault, the plaintiff claims that the defendant penetrated her vagina with his penis and she felt pain. Whilst this was occurring (and also before penetration), which went on for a few minutes, the plaintiff asked the defendant to stop what he was doing as it was hurting her but he proceeded.

20. In due course, the plaintiff said the defendant let the plaintiff go and he got out of the car and proceeded to the back of the car. The plaintiff said that she was in shock but eventually got out of the car and went to the back of the car. She noticed that something was running down her leg and she saw blood by the light from the boot. The plaintiff said that she saw the plaintiff wiping his erect penis with a cloth. She said she had never seen an erect penis before. She requested a cloth from the defendant to wipe the blood running down her leg. The defendant expressed concern that there may be blood on the seat of the car. The plaintiff said she then wiped herself and threw the cloth into the boot and got into the car.

21. The plaintiff claimed that there was no further conversation with the defendant who drove his car and stopped the car on the corner of the plaintiff’s street. He allegedly said to her words to the effect “don’t tell anyone will you”: T38.2. The defendant then drove away and the plaintiff walked home. There was no one at home when she arrived: T38.16.

22. The plaintiff said she had a shower and noticed blood on her dress. She said she also washed her hair. The plaintiff said that she got out of the shower and dried herself and placed her pyjamas on.

23. The plaintiff gave evidence that soon after, a friend of her mother’s, Ms E, arrived. The plaintiff said that she did not say anything to Ms E about the incident as she felt ashamed, scared and worthless: T39.5.

24. The plaintiff said that she invited Ms E in and made her tea. She said she had been crying before Ms E arrived at the house both in the shower and in her bedroom: T39.18.

25. The plaintiff stated that soon after Ms E arrived, her mother came home. At that time the plaintiff said she was seated in the kitchen talking to Ms E at the kitchen table. The plaintiff gave evidence that she said nothing to her mother about the incident. She made a cup of tea for her mother and a couple of minutes later indicated that she wished to go to bed as she was tired.

26. The plaintiff stated that the next day she put her clothes from the previous night in a bag at the bottom of the rubbish bin and threw them out. She said she did not want her mother to see them or know what had occurred. The plaintiff said that she felt “damaged” and worthless at this time. The plaintiff could not recall what else she did that day. She said she returned to school the following Monday which she believed to be 12 September 1972. She said that she spoke to a friend of hers, Ms R, who had seen her crying. She told Ms R that there had been “trouble at home”: T42.4.

27. The plaintiff gave evidence that she did not continue to see Mr N. She said she wrote a letter to him ending the friendship. She said she did not want to go to the defendant’s home and the defendant was Mr N’s brother-in-law. She said she never went back to the defendant’s home and never undertook L sport again.

28. The plaintiff stated that she told no one at that time about the incident: T42.31. After completing her schooling that year, the plaintiff said that after the Christmas holidays she moved to Sydney and obtained banking work. The plaintiff gave evidence that she was very homesick in Sydney and wanted to go home. She returned home at Easter 1973. At that time, her younger brother was still living at home but her older brother had moved out. Her mother and sister were residing at the house but her father had left for a short time. Her mother encouraged the plaintiff to seek employment and soon after the plaintiff commenced work in a department store. She did not return to L sport in K.

29. The plaintiff gave evidence of meeting her husband when she was 17: T43.43. The plaintiff stated that she married her husband Mr C in January 197x. She gave evidence that she told her husband about the incident probably before Easter in 1976: T44.44. Her husband encouraged the plaintiff to tell her mother what had occurred when they visited K for Easter 1976: T45.10.

30. The plaintiff said that she went to her home in K at Easter 1976 and told her mother in the kitchen what had occurred. She said that Ms E was also in the kitchen and heard what she had said. She said she described what had happened in the incident to her mother in some detail: T45.39. She said she was very upset at the time. The plaintiff said she felt “devastated” having to tell her mother in relation to the incident. The plaintiff also stated that in 1976 she told a friend Ms Q that she had been “raped”.

31. The plaintiff gave evidence that in 1983 she spoke to her general practitioner Dr P in relation to what had occurred in the presence of her husband. The plaintiff stated that she was referred to a psychiatrist in Queensland soon after but she could not recall the name of the psychiatrist. The plaintiff said that she saw Dr P as her usual general practitioner for 13 years.

32. The plaintiff gave evidence of having difficulties with her daughter G when she was younger. As a result, G had seen a psychologist. The plaintiff stated that she had asked to talk to the psychologist. The plaintiff stated that she informed the psychologist that she also had been sexually assaulted. She stated that she saw the psychologist, a Ms M, every three or four weeks with her daughter but had seen Ms M herself on a couple of occasions: T47.46.

33. The plaintiff stated that her general practitioner at the time, Dr S, referred the plaintiff to a Ms J, psychologist, in November 2014.

34. The plaintiff attended a number of consultations with Ms J in 2014 and 2015. The plaintiff gave evidence that she was then referred to a Dr Y, psychiatrist. The plaintiff gave evidence that she had been prescribed medication which, although it had been varied over the years, she still took.

35. The plaintiff stated that she had thoughts on occasions in relation to self-harm and this had occurred first in 2016 when her mother had provided an affidavit for the defendant. The plaintiff indicated that she was very upset at this.

36. The plaintiff also confirmed that she had thoughts and dreams in relation to the incident, although these had reduced more recently. The plaintiff said that those thoughts and dreams were bad in 2014 and she would wake up in a sweat as well as having nightmares and some incontinence issues.

37. The plaintiff’s evidence discloses that in 2015 she attended xx Police Station to report the alleged sexual assault. She said that although she lived in Queensland she reported it in New South Wales as the assault had allegedly occurred in New South Wales. The plaintiff indicated that following discussions with police she had called the defendant and had a discussion about the incident. The plaintiff gave evidence that the content of the conversation was in the following terms:

“Q.  You'd been to the police, you then have a phone call with the defendant?

A.  Yes.

Q.  You indicated that you related again what had happened.  Do you remember what the defendant said to you, the words he used when you did that?

A.  “No, no, no, it didn't happen that way.”

Q.  They were the words he used?

A.  That's ‑ yes.

Q.  Did he ever use any other words during the conversation?

A.  Yes.

Q.  What else did he say to you?

A.  Well, he said, “I don't remember it happening that way,” and I said, “I will tell you how it happened,” and I explained as I have today.  And I said, “It wasn't consensual, it was rape and aren't you sorry for raping me?”  And he said, “Yes, I'm sorry.  I'm very, very sorry.”  And we repeated that and then the last thing he said to me, “I'm going to have to ring [S]” who is my older brother.” (T50.46-T51.16)

38. The plaintiff indicated that the alleged sexual assault had caused problems in her marital relationship which had resulted in her husband always being the initiator of intimacy. The plaintiff said that if she had instigated intimacy she believed that she was “trashy”: T51.42.

39. The plaintiff also indicated that she was very concerned about her security in her house and she ensured that every door was locked.

40. The plaintiff gave evidence about her working history. She stated that after marriage, she worked separately from her husband for about six years at a bank data centre and had then proceeded to work in her husband’s business. The husband was then a xxx and had started his own business. There the plaintiff undertook administrative duties in relation to financial matters, including liaising with a book-keeper and an accountant: T52.45; T53.23. The plaintiff stated that her medication sometimes inhibits her getting to work on time with her sometimes requiring further rest in the morning which causes her to arrive at work at 11am or 12 noon. The plaintiff indicated that her husband had now undertaken further study and has become a xx [confidential].

41. The plaintiff indicated that she saw her psychiatrist every month and her general practitioner every second month for a review.

42. The plaintiff’s evidence was that she has no contact at all with her siblings, her mother or her distant relatives. She said she stopped having contact with her relatives following her husband asking her mother to provide the plaintiff with more support in about October 2014.

Cross-examination

43. Mrs A was the subject of an extensive cross-examination in relation to the events of 1972-73, her subsequent consultation of doctors and allied health professionals and the giving by her of statements to the New South Wales police.

44. The plaintiff gave evidence that she was in a group of people, which included her brothers and the defendant, who were interested in L sport whilst teenagers. [Confidential]. She accepted that by 1972 when she was 16 years of age the defendant had married: T56.42.

45. The plaintiff was then cross-examined as to what she had told Dr L, psychologist, in 2018. The plaintiff agreed that she had told Dr L of the events prior to June 1972. She agreed that she had the perception at this time that the defendant liked her and she also liked him: T58. The plaintiff also agreed that she told Dr L that she and the defendant had kissed but denied that she started kissing the defendant about two months before the alleged sexual assault incident: T58.40.

46. The plaintiff was then asked about an incident where the defendant allegedly arrived at her house when she went into her parents’ bedroom with the defendant. The plaintiff had given evidence about this in her evidence in chief: T31.45-T32.8. The plaintiff gave evidence that both she and the defendant were wearing clothes when they were in the parents’ bedroom and she was pulled by the defendant by the arm to the parents’ room. The plaintiff claimed that she did not want to go into the room. She accepted that she may not have told Dr L that the defendant was insisting that she go into the room by physically pulling her by the arm into the bedroom. The plaintiff denied that she did not have a clear recollection that the defendant pulled her into the room. The plaintiff disputed that this was the first time that she had indicated that the defendant had pulled her arm: see T31.50. It was then put to the plaintiff that she did not tell Dr L as she had given evidence in chief that in this incident when she went to the bathroom she saw on her skirt “this creamy white stuff and I wasn't sure what it was”: T32.4. The plaintiff appeared to suggest in that evidence that it was the defendant’s ejaculate which was on her skirt. The plaintiff claimed that she told Dr L everything and she had a clear recollection of what she told her. The plaintiff stated that she believed she did use the phrase “creamy white stuff” in telling Dr L. The plaintiff agreed that she told Dr L that her skirt was wet but denied embellishing her story in her evidence in chief by saying that the defendant pulled her or adding details in relation to how her skirt was wet. The plaintiff denied that the alleged incident in her parents’ bedroom was a fiction and made up by her: T65.44; T66.28.

47. When the plaintiff was asked how this event could have occurred when both she and the defendant were clothed as she indicated in her evidence in chief (T32.21), the plaintiff said she assumed that the defendant must have undone his zipper in the dim light in the parents’ room. The plaintiff agreed that in her evidence in chief she did not mention her assumption that the defendant had his zipper undone and said that she did not know whether that was the case: T67-68.

48. The plaintiff was then asked about her evidence in chief relating to an alleged incident after she and the defendant had left a swimming pool in K: T30.29-T31.25. The plaintiff agreed that this occurred before the defendant was married and believed it was when she was 14 years old. She said the defendant walked home with her and took her behind a wall at the school where he kissed her. It was put to the plaintiff that she told Dr L that the defendant tried to take down her underwear. The plaintiff said that this was not correct and consistently with her evidence in chief, she said that the defendant tried to pull the bottom of her swimming costume down: T31.29; T68.44. It was put to the plaintiff that the pool incident never occurred and the plaintiff denied this and said that it did occur: T69.21.

49. The plaintiff was then asked about answers to a request for further and better particulars which her solicitors had supplied to the solicitors for the defendant. She was also asked about the history provided to Dr B by her solicitors. She agreed that the source of the solicitors’ instructions both to the doctor and for the answers to particulars was her. It was put to the plaintiff that the first time that there was kissing between her and the defendant was after the defendant was married and when she was invited to the defendant's home with her then friend Mr N and she followed the defendant when he entered a room to check on the baby. The plaintiff denied that she kissed the defendant in the baby's room and that is how her intimacy with the defendant started about two months before the alleged sexual assault.

50. The plaintiff also denied the suggestion that she rode over to the defendant's home on 12 to 15 occasions when the defendant's wife was not present as she was working as a nurse. The plaintiff denied that she touched and cuddled the defendant and he stopped at her request. The plaintiff said that she did not attend the defendant's premises as indicated: T71.47.

51. The plaintiff was then asked a number of questions in relation to the night of the alleged sexual assault. The plaintiff confirmed that at that time she was home alone and her sister was at a sleepover at her aunt's house and her mother was also at the aunt’s house. The plaintiff gave evidence that her mother had left to go to her aunt's house at about 8 to 8:30pm: T73.42. This should be compared to the plaintiff's evidence in chief that the defendant arrived at her house on the day of the alleged sexual assault at approximately 8pm: T32.31; T33.2. The plaintiff confirmed that her mother had left before the defendant arrived and that she had on her favourite dress which was pink with a white collar. She denied that she only wore it on special occasions. She also denied that she was not wearing the dress when her mother left. She accepted that her mother would have seen all her clothing in the wash and conceded that she only had two or three dresses: T74.32. She accepted that her mother should have known of all of her dresses: T74.49. It was put to the plaintiff that she did not have a pink dress at the time and the plaintiff denied this and said that she did. She also denied that she did not have the pink dress on when her mother left. The plaintiff could not recall a navy blue dress with white flowers: T75.19. The plaintiff denied that her favourite dress at the time was a navy blue dress with white flowers. The plaintiff also denied that she was wearing her favourite dress as she thought the defendant was coming to her house: T75.39.

52. The plaintiff was then cross-examined about the conversation which she allegedly had with the defendant on the night of the alleged sexual assault as given by her in her evidence in chief compared to what is set out in paragraph numbered two of the further and better particulars provided by letter dated 21 November 2018: Exhibit 1. The plaintiff accepted that she had given accurate and full instructions to her solicitors for the purposes of the particulars. In her evidence in chief, the plaintiff stated that the defendant “coerced” her to get into the passenger side of his car: T33.19. However, the plaintiff accepted that the defendant was pulling on her arm and she consented to get into the car: T78.46. She denied that she did not want to take too long with the defendant as her mother was out. The plaintiff stated that she recalled the car being a golden brown W and denied that the car of the defendant was a white X.

53. The plaintiff was then cross-examined about the reference in the further and better particulars where it is stated: “The plaintiff cannot recall an exact date, however to the best of her recollection it was a date in July, as the plaintiff had just turned 16”. The plaintiff said her recollection was that the sexual assault occurred not long after she had turned 16 and she could not recall the month.

54. The plaintiff confirmed her evidence that she believed the sexual assault occurred on a day during the school holidays. This was consistent with her evidence in chief: T32.34. The plaintiff agreed that when she saw the police in 2015 she believed that the incident occurred when she was over 16, not long after her sixteenth birthday. She said that she could not recall the incident occurring in July but accepted that she could have said something similar to what is appearing in paragraph 1(i) of the letter supplying further and better particulars. However, the plaintiff denied telling the solicitors that it occurred in July but agreed that she could have said that it occurred somewhere between July and September 1972. The plaintiff gave evidence that she first recalled that the alleged sexual assault occurred in the school holidays in 2020 or 2021: T83.34. When it was suggested to the plaintiff that she was giving evidence that she recalled a matter in 2021 which she had not recalled for the last 40 years, the plaintiff said that she had put it out of her mind.

55. It was then put to the plaintiff that after she had got into the defendant's car, he had driven to the hospital car park where she and the defendant had kissed and cuddled for about 30 minutes. The plaintiff denied this. The plaintiff also denied the proposition that the defendant never took her on the night of the alleged sexual assault on a dirt road near silos. It was put to the plaintiff that the defendant went to the passenger side of the car swung her legs out, removed her underpants and then penetrated her vagina with his penis, and that nothing occurred to indicate that she was not consenting to the activity. It was then suggested that after the defendant had penetrated her, the plaintiff pushed him off with both hands on his chest and he withdrew. The plaintiff denied this account while accepting that the defendant penetrated her vagina with his penis. She rejected the proposition that she said nothing to the defendant to indicate that she was not consenting: T84.30-T85.35. It was put to the plaintiff that she had some blood on her person and she said it was running down her legs. She denied that the defendant came back with a towel for her. She agreed that the defendant got back into the car and drove her home but she said he dropped her at the corner: T85.42.

56. The plaintiff was then asked some questions in relation to her dress. She denied that it was her evidence that her dress was torn and said it was not torn. She also denied that she had told Dr B that her dress was torn and damaged in the incident. In her first report, Dr B states: “Ms A said once she returned home, she went into the shower and threw her dress and underwear into the rubbish bin. She said her clothes were stained and torn and it was a favourite dress of hers”. The plaintiff stated that she did not say that her dress was torn to Dr B. The plaintiff accepted that she could not recall exactly what she said to Dr B but she said that her underpants were torn in the incident but not her dress. The plaintiff confirmed her evidence in chief (T38.25) that she had blood on her dress: T87.37. She could not recall whether the blood was “all over” the dress.

57. The plaintiff accepted that the blood on the dress would have been obvious to anyone who saw her including her mother if she had seen her: T88.1. She agreed that she walked home after being dropped off crying and with blood on her dress and was still crying when she arrived home: T88.4. The plaintiff said that when she returned home she knew her sister was not present as she had gone for a sleepover. She also knew that her mother's friend Ms E would not be there as she called in to her mother on a Wednesday night after she finished work at 10pm. The plaintiff accepted that she did not know who would be at home when she arrived and agreed that her mother could have been at home. She also agreed that if her mother was at home there would have been no way of disguising her distress. Whilst the plaintiff agreed that she took no steps to check if her mother was home and had no intention of hiding anything from her mother initially, she took her clothes off and threw them to the bottom of the garbage as she did not want her mother to find out. The plaintiff said that she said nothing remarkable to either her mother or her mother's friend Ms E but simply made them tea. The plaintiff was cross-examined about the answers to particulars referring to the plaintiff disposing “of her clothing and underwear in the garbage” whereas the plaintiff's evidence was that she put the clothes “at the bottom of the rubbish bin”: T40.42. The plaintiff denied this was an embellishment to her story and said that it happened.

58. It was put to the plaintiff that her mother did not like her going out with the defendant once he was married. The plaintiff said that she never went out with the defendant once he was married. The plaintiff importantly agreed that the night of the alleged sexual assault was the only occasion when she got in the car with the defendant alone in the second half of 1972: T92.21. This was inconsistent with the plaintiff’s mother’s evidence. The plaintiff said she got in the car with the defendant and his wife and baby prior to the incident when they took her to see Mr N in P. This was consistent with the plaintiff's evidence in chief: T26.18.

59. It was put to the plaintiff that when she arrived home on the night of the alleged sexual assault that her mother and her mother's friend Ms E were at home. The plaintiff denied this and further denied that she told her mother that she had been on a drive with the defendant and that her mother had indicated that as he was married she did not want her going out with him. The plaintiff accepted that this was her mother’s version as she understood it. The plaintiff accepted that if her mother and Ms E were home then her version of the evening could not be correct: T93.23. The plaintiff said: “Things would be different.”

60. It was put to the plaintiff that it was inconceivable that her mother would not have noticed if she had thrown out one of her few dresses. The plaintiff denied that her mother would have known if the dress had disappeared. However, the plaintiff said that she never discussed clothing with her mother other than saying that the pink dress with the white collar was her favourite dress. The plaintiff denied that when she returned home that her sister was home in bed and said she was at a sleepover. The plaintiff confirmed that she changed in her bedroom after she arrived home.

61. It was put to the plaintiff that she attended a farewell party for the defendant when he left to go to Sydney. She denied this and also denied that the family held a farewell party for the defendant when he moved to Sydney.

62. The plaintiff was then asked a number of questions about the period after she moved to Sydney before she returned to K at Easter 1973. The plaintiff accepted that she was in Sydney from the beginning of 1973 until Easter. She also accepted that the defendant was in Sydney at this time. The plaintiff confirmed that while she was in Sydney she attended L [sporting] events. She said she was aware that the defendant was an avid [L sport] but claimed that she “never gave it a thought” that the defendant was likely to be at events: T95.36. She said she never sat together with the defendant and could not recall walking past him. She said she always tried to avoid him. The plaintiff said that she attended L [sporting] events in the period probably about three times. She denied that she did not mind if the defendant attended the events and further denied that this was because the alleged sexual assault never occurred.

63. The plaintiff said that she saw the defendant's wife and the baby at some of the L [sporting] events but could not recall seeing the defendant at the events although she accepted that if his wife and baby were there he would also be at the events: T97.21.

64. The plaintiff was asked about other occasions when she saw the defendant in Sydney between the beginning of 1973 and Easter 1973. The plaintiff gave evidence that she recalled the defendant and his wife and baby arriving at the family home where her brother and her lived in Sydney and requesting that she go and spend the day with them. The plaintiff conceded that she did go with the defendant and his wife and baby to their residence for lunch and “a short while in the afternoon”: T97.43. The plaintiff asserted that she did not want to go (T97.50) but claimed that everyone was insisting that she go and she felt she did not have a choice and if she did not go everyone “would think it was odd”: T98.6. The plaintiff conceded that she drove in the car with the defendant which was the same car that she alleged that she was assaulted in: T98.13-.17.

65. The plaintiff was then asked about an incident where the defendant gave her a lift when he was in xxx Road in Y in Sydney. She confirmed that she met him in the street and he offered to give her a lift. This was about six months after the alleged sexual assault. The plaintiff agreed that she accepted his lift on the basis that he had told her that there were no more buses coming and she had worked late at the bank until about 7:30pm. The plaintiff said that she believed him. The plaintiff was questioned whether she believed her alleged “rapist”, six months after the event when he told her that there were no buses. The plaintiff said she did. The plaintiff also agreed that the car she accepted the lift in was the same car that she alleged that she had been raped in: T99.42. The plaintiff agreed with counsel for the defendant that the defendant tried to give her a kiss and she said to stop it. She denied that she said “I don't want to do this anymore”. The plaintiff agreed that the defendant then took her home: T99.35-T100.10. In later evidence, the plaintiff said she was also living in Y at the time.

66. The plaintiff also agreed that she obtained a lift home to K with another person in the defendant's car when he drove back with his wife and baby. The plaintiff said she got in the car because her mother and brother had organised the lift and she did not want to have to explain why she would not want to go in the car: T100.44. The plaintiff accepted that she had taken lifts from the defendant about six months after he had allegedly violently assaulted her in the same car in which she was assaulted. The plaintiff justified her accepting a lift from the defendant outside her work as he had indicated that there were no more buses and she was a 16-year-old girl “in an unknown city”: T101.18. The plaintiff denied that when she received a lift from the defendant outside her bank that it was not as late as 7pm but only 4pm and it was daylight.

43. The plaintiff accepted that she had attended three Easter L [sporting events] with her husband in K. She said the first of the L [sporting events] was in 1974 and the first two [sporting events] occurred when she had not yet been married to her husband. The plaintiff agreed that she spoke to the defendant at a barbecue which occurred during one of the L [sporting events] but claimed that the barbecue was at her house and not elsewhere: T103.20-.33. The plaintiff denied introducing the defendant to her now husband: T103.44.

44. The plaintiff was asked questions about her wedding. She said she was married in January 197x. She denied that she organised the wedding and said that her mother was in full control of the wedding: T103.50. The plaintiff also denied that she was in control of who was invited to the wedding. In answer to the question that she could have told her mother if she did not want someone to be invited to the wedding she said, “I never gave it a thought”: T104.6. The plaintiff asserted that she told her now husband at the time that she did not want the defendant and his wife at the wedding but she did not know what to do. The plaintiff said that her husband did not ask what the reason was for why she did not want them at the wedding: T104.10-.23. The plaintiff accepted that she did not take any steps to have the defendant removed from the wedding list: T105.40.

45. The plaintiff agreed that prior to her marriage she did not tell her current husband about the alleged sexual assault: T105.47. She stated that before she got married her husband had asked about whether she had had previous sexual partners and that she did not answer him: T106.3-.15. The plaintiff accepted that she did not tell her husband prior to the marriage that she had had any sexual encounters whether with or without consent: T107.9. This is consistent with the plaintiff's evidence in chief that when the plaintiff's now husband asked her whether she had previously had sex with anyone prior to the marriage that she did not say anything: T44.36. The plaintiff agreed that after her marriage, she did tell her husband about the alleged sexual assault and he continued to press her about it: T106.28 and .35. The plaintiff agreed that she thought she had to tell him about the previous encounter with the defendant: T107.39. The plaintiff denied that when she told her husband she formed a view in her own mind that the way to lessen the emotional impact upon her husband was to tell him that the act with the defendant had not been consensual: T108.22. The plaintiff agreed that her husband kept asking her the details of the sexual assault and she had to recount to him what had occurred in 1972 with the defendant on many occasions: T108.38-.44. The plaintiff denied that in recounting the events to her husband that she felt pressure from him to say that the activity was without her consent: T109.9. The plaintiff stated that she believed that she told her husband that she did not “want it to happen” but later told him that she had expressly said to the defendant “no”: T109.36-T110.1.

46. The plaintiff agreed that she first told her mother of the alleged assault at Easter 1976. She denied that her now husband was present when she informed her mother or that it was first raised by her husband: T110.9-.36.

47. The plaintiff was then asked a number of questions about her medical treatment. She agreed that she first sought medical treatment relating to the incident in 1983 from her general practitioner, Dr P. She said that her husband and she went to see the doctor together and he referred them to a psychiatrist for a form of marital counselling.

48. The plaintiff was then asked a number of questions about her consultations with Dr S. The plaintiff denied that the first time that she told Dr S about the alleged sexual assault was in November 2014 some two years after she began seeing Dr S. The plaintiff asserted that she told Dr S about the sexual assault in the period up to 2012: T112.43. The plaintiff rejected that she only told Dr S in 2014. However, Dr S's notes in evidence first refer to a sexual assault in November 2014. The plaintiff was taken to an entry of 24 May 2012 where Dr S records the plaintiff as not working. The plaintiff said that she always did the paperwork for her husband's business but completed it sometimes at home until her daughter left home. The plaintiff denied that when she told Dr S in May 2012 that she felt “overwhelmed” that she did not tell her about the sexual assault.

49. The plaintiff was taken to the entry for 13 November 2014 when Dr S diagnosed the plaintiff as suffering from PTSD and an adjustment disorder arising from being raped as a 16-year-old. She denied that this was the first time she had told Dr S of the incident. The plaintiff agreed that thereafter, Dr S referred her to see Ms J, psychologist, and prescribed her medication.

50. The plaintiff was then asked about attending the police station in xxx. She accepted that she attended the police station prior to 22 June 2015 as it is recorded in Dr S's notes. She denied that rehashing the events exacerbated her depression. She agreed that she worked with her husband in his business most of the time and had worked with her husband after completing work at the bank after several years.

51. The plaintiff was asked about having a telephone conversation with the defendant while she was at the police station. She agreed that she did not tell him that he was being recorded. The plaintiff asserted that the defendant said to her that he was “very, very sorry” and accepted that what he was referring to was the fact that she was upset about what had occurred in 1972: T120.21. The plaintiff also accepted that at no stage in the conversation did the defendant ever agree that what had occurred in 1972 was without her consent: T120.28. See also T51.11.

52. The plaintiff conceded that she had recounted the events relating to the alleged sexual assault in 1972 on numerous occasions with the final version being in her evidence in chief. The plaintiff agreed that every time she gave her account of the events that she had to reconstruct the event in her mind: T128.39. However, she rejected the proposition that in the course of that reconstruction she changed the version of the events which took place on the relevant night. She also rejected the proposition that she had altered what was a consensual activity into a non-consensual violent assault: T128.47.

53. In re-examination, the plaintiff said that she had been seeing Dr S, her previous general practitioner, from approximately 1995.

54. The plaintiff made an application for leave to adduce further evidence in chief in relation to a conversation which she allegedly had with her mother in 1976 when she told her what her version was of what had occurred. After hearing submissions, leave was granted by the court.

55. The plaintiff was reminded of her evidence in chief that when she returned to her mother's house in Easter 1976 she spoke to her mother. The plaintiff's evidence in chief was as follows:

“Q.  Did you again just briefly tell them or did you describe what had happened?

A.  No, I described to my mother what had happened.

Q.  Is that similar to what you've described to the Court today?

A.  Yes.

HIS HONOUR

Q.  So in some detail?

A.  Yes.” (T45.20-T45.29).

80. The plaintiff said that she felt “devastated” about having to tell her mother: T45.47.

81. The plaintiff then gave the following version of what she told her mother:

“Q.  I want you to relate to the Court what you said to your mother first of all?

A.  I went out to my mother from the bedroom and I was crying and I said I have to tell you something.

Q.  You said, “I have to tell you something”, did she reply to that at all?

A.  She said, “What do you have to tell me”?

Q.  And what did you then say?

A.  I told her that [Mr B] had sexually assaulted me.

Q.  So you have told her that?

A.  Yes.

Q.  What else did you say?

A.  And she said, “What happened”?

Q.  Yes?

A.  And I told her that he wanted to talk to me and I didn't really want to go because I wasn't feeling well and I told her that you know, that I walked him out to the front yard and he coerced me into the car.  Opened the passenger's side door and pulled on my arm and then coerced me into the car.

Q.  Did you continue talking or did your mother say anything at that point in time?

A.  No, she was just listening.

Q.  What else did you say?

A.  I said he drove up the street towards [V's] and when we got to that corner I said, “What do you want to talk about” and he said, “Wait till we stop and I will tell you.”  So we turned left and went up to the [xxx], turned right and then left over the railway line and I said to my mother that he pulled up behind the silos on the dirt road.  I told her that he got out so I was turning around‑‑

SLEIGHT: Excuse me, your Honour, I've not objected so far but perhaps the words “I told him that” the words he used could be?

HIS HONOUR: Yes.

…

Q.  Please go on?

A.  And I told my mother that “I thought he wanted to get out of the car to talk and so I turned my legs around and he opened the door.”  And I told my mother that “He pushed me down by the shoulders” and I was getting quite upset at the time and I do believe my mother's friend, [Ms E], was in the kitchen as well‑‑

SLEIGHT: Your Honour please.

HIS HONOUR:

Q.  We're not worried who else is there, we're just dealing with the conversation.

A.  Yes.  Okay.

Q.  So you told your mother that he pushed you down by the shoulders?

A.  Yes.

Q.  Did you tell her anything else?

A.  Yes, I told her exactly what had happened.

Q.  Well, no, I want you to tell me what you said to her?

A.  Yes.  And “once he pushed me down by the shoulders he grabbed both my wrists in his right hand and then he got the small of ‑ put his other left hand under the small of my back and shoved me up against the door.”  And I said to my mother that “My head was awkwardly up against the driver's side door” and‑‑

Q.  Go on.

A.  And she said, my mother never said anything, she just let me talk.  And I said, “I told him 'What are you doing?  Stop it, I don't want to do this'“ and she just listened.  And when I told my mother that I said that ‑ I told my mother that “He said, 'You're not a virgin'“ and I told her that I told him “I am a virgin.”  And then I told my mother that “I thought all I have to do is keep my legs tight together and nothing would happen because I couldn't move my arms below, they were trapped on the steering wheel.  I couldn't move my arms” ‑ excuse me I need a drink.

Q.  Take your time.

A.  And then I said to her that “I just felt helpless” and I said, “You're hurting me.”  I told my mother that I said to him “You're hurting me.  Stop it.  I don't want to do this.”  And then he put ‑ I told her that he put his knees into my thighs and made my legs spread apart and I said to my mother “Even though he spread my legs apart a bit I still thought I have to ‑ I kept them as tight as I could to try to stop anything.”  And I said to my mother that “He forced his penis into me and I felt pain, such terrible pain, and I kept asking him to 'Stop it.  You're hurting me' and he said, 'It won't hurt soon'“.  And ‑ and then I told my mother that I persistently asked him to stop it, that he was hurting me and that I didn't want to do this.  So then I told my mother that “He went around to the back of the car and I was in shock and I got out of the car” and I told her “I felt something running down my legs and it was blood” and I told her that I asked him “Could I have something to wipe my legs with because I have blood on my legs” and I told my mother that he was more worried whether I had blood on the seat or not.  And then I hopped back in the car and I said, “Then he drove me home to the corner and dropped me off at the corner.”  And I told my mother that “My husband is very upset because he still has contact with our family and that he doesn't want him coming around here anymore or having contact with our family.”  And my mother didn't give me a hug or anything.

HIS HONOUR: Hold on.

ANDREWS:

Q.  That's the conversation is it?

A.  No, that's not the end of the conversation.  The end of the conversation was “I will go and talk to [Mr C].”

HIS HONOUR:

Q.  Is that what your mother said?

A.  Yes.” (T145.5-.42; T146.28-147.49)

82. The plaintiff gave evidence that her husband was in her parents’ bedroom at the time she had this conversation and there were no other persons present with her mother.

83. It is to be noted that the plaintiff's account of the night in question before she arrived home concluded when she said that the defendant dropped her at the street corner.

84. In further cross-examination, counsel for the defendant put to the plaintiff that she had no independent recollection of what she had told her mother 44 years earlier at Easter 1976. The plaintiff rejected this and said she did have a recollection: T150.15. She also rejected the proposition that she had merely assumed that she had given her mother a detailed account. The plaintiff rejected that she always assumed the accounts were the same as she kept rehearsing the events in her mind: T151.21. The plaintiff rejected the proposition that her mother had interrupted her as she gave her account and claimed that she had given the detailed account to her mother without any interruption. The plaintiff conceded that she did not tell her mother that when she returned she had showered and thrown out her dress which had blood on it: T152.25.

85. The plaintiff denied fabricating the account she gave her mother and said that she told her the truth: T158.18. She conceded that the account was similar to the account she had given her in her evidence in chief but not completely the same.

86. The plaintiff rejected the suggestion that her version of her conversation with her mother in 1976 never happened and in particular that she never mentioned to her mother at that time the details of the alleged sexual assault: T158.25. The plaintiff rejected the proposition that the first time that her mother was told about the sexual assault her husband was in the kitchen and there were present the plaintiff, her husband, her mother and her mother's friend Ms E: T158.37. The plaintiff also rejected the suggestion that her husband had said to her mother that he wished her to go and tell the defendant's mother that her son had raped the plaintiff. The plaintiff rejected that she was standing behind her husband when he said this and she had shaken her head. The plaintiff rejected the proposition that her mother had said “I don't think so” and that the plaintiff's husband had asked her to go and wake the plaintiff's father. It was put to the plaintiff that the plaintiff’s mother said that they would talk about it in the morning and that when it was raised with her the next day the plaintiff had replied: “Just leave it”: T159.19. The plaintiff denied this.

87. The plaintiff was later recalled and counsel for the defendant put to her that when she had a conversation with her mother in the kitchen in 1976 when her husband told her about the alleged assault, her mother asked when it was supposed to have happened and her husband replied the night “you went to [V's]”. The plaintiff denied this and said she was never present when her husband said this to her mother.

Oral evidence of Mr C

Evidence in chief

88. Oral evidence was given in the proceedings by Mr C, the husband of the plaintiff. Mr C gave evidence that he was born in June 195x which made him nearly xx at the time of the final hearing.

89. Mr C gave evidence that he first met the plaintiff at Christmas time in 1972 at her uncle's place in K. At that time, he was attending a L [sporting]event in the country area. Mr C said he also came to a L [sporting] event at the end of 1973 when he went out with the plaintiff in a group for dinner to the local RSL club in K. The evidence established that the plaintiff and Mr C started courting and the plaintiff travelled to see Mr C in Brisbane where he resided. In due course, the plaintiff and Mr C decided to become engaged in early 197x and they were married in January 197x.

90. Mr C gave evidence that he had intimacy with the plaintiff prior to their marriage and noticed that she was very tense and did not participate during intimacy. Mr C gave evidence that at some stage he asked the plaintiff whether she had been with anyone else previously and he stated that the plaintiff did not answer him, went quiet, turned away, was crying and seemed very depressed. He said he had felt he had done something wrong and he apologised to the plaintiff.

91. Mr C stated that he raised the topic with the plaintiff on a number of other occasions until the plaintiff and he got married and he received a similar response from the plaintiff. Mr C gave evidence that in December 197x shortly before his marriage, the plaintiff said to him words to the effect: “He pulled my pants or ripped my pants down to my knees” but did not identify who the “he” was: T167.39. He said he did not follow up on the matter as it appeared to be upsetting the plaintiff.

92. Evidence was given by Mr C that after their honeymoon in about January 197x the plaintiff informed him that she had never been sexually active with anyone else but said that she had been subject to a sexual assault: T169.40. The plaintiff’s husband said that they had, in his view, difficulties with intimacy.

93. Mr C said that he had a further discussion with the plaintiff on the topic. Mr C stated that the plaintiff said the following to him:

Q.  She said, I said and what?  Not a summary.

A.  She told me that ‑ I don't think she actually used his name because I already knew who it was.

Q.  Okay, well you tell us what she said?

A.  She said that he took her for ‑ ”He come uninvited to the house—

…

A.  Yes.  She told me she was unwell at the time and he was trying to get her to go for a drive in the car.  She said she didn't want to go but eventually ‑ she ‑ she went to walk him out ‑ this is what she told me, she went to walk him out outside the house but he kept coaxing her, pulling on her arm to get in the car to go for a drive.  He told her that “I need to have a talk” and she told me that they went for a drive to where the silos were and she described exactly what happened to me, that‑‑

Q.  What did she say?

A.  He got ‑ he got out of the car door, the driver's door, walked around to the other side ‑ the passenger side of the door.  [A] was ‑ turned around and he opened the door up.  She turned around with her legs to get out of the door and then he pushed her down by her shoulders, grabbed her arms, put all his body weight on top of her.  He put his thighs between ‑ his knees between her legs, pinched her legs and he ripped her underpants down and told me all those things, ripped her underpants down to her knees.  She said it was very painful with the ‑ she actually said it was the worst pain she ever experienced and she also told me that he said, “You're not a virgin.”  She told him, “Yes I am, stop, please, stop.  I don't want to do this.”  She said she said that multiple times and she said that the plaintiff sexually assaulted her, yeah. (T172.3-.38)

94. Mr C stated in this part of his evidence that the plaintiff did not identify who the person was that the plaintiff was talking about. He asserted that he knew who it was because of a conversation with a third party.

95. After this conversation, Mr C said that he and the plaintiff went to her mother's house in K at Easter time in 1976 and stayed there. He recalled that he and the plaintiff stayed in her parents’ room and that her sister was present. During his stay in the house, Mr C stated that he had a conversation with the plaintiff's mother in the house. This occurred in the parents’ bedroom and only the plaintiff's mother and he were present. Mr C said that he did not have a conversation with the plaintiff's mother about the topic when his wife was present. He also said that he did not have a conversation on the topic with the mother in the kitchen of the house: T174-175.

94. Mr C gave evidence that he attended an Easter L [sporting event] in K in 1976 at which he spoke to the defendant [confidential] on a Sunday night. Mr C gave evidence that he approached the defendant and said words to the following effect to him: “Do you realise how much you have hurt her. You raped her”. Mr C said he did not hear the defendant say anything in response: T176.39-T177.2. He said no further conversation occurred between him and the defendant at that time. Mr C asserted that after that incident he had a further conversation with the plaintiff's mother in the parents’ bedroom in the house and next day moved to return to Brisbane by car: T177.

95. Mr C gave evidence that in February 197x he and the plaintiff moved to a new house in Brisbane. He stated that at that time the intimate relationship with the plaintiff was not “good”. He said that they were “always talking” about the alleged sexual assault: T178.25.

96. Mr C stated that he attended the plaintiff's general practitioner Dr P with the plaintiff and obtained a referral to a psychiatrist in about 1980-1981 where the alleged sexual assault was discussed. Following this, Mr C said his intimate relationship with his wife improved in the following decade. He claimed that on one occasion he raised the plaintiff's arms above her head during intimacy and this upset the plaintiff: T179.30.

97. Mr C gave evidence that in 1990 the plaintiff’s younger brother was staying with them in Brisbane. At that time, he understood that the plaintiff and her mother were arguing. Following this, Mr C said that he rang the U Club to obtain the defendant’s telephone number. He said he wished to talk to the defendant to see if he showed remorse and to ask him to talk to the plaintiff's mother to assist their relationship.

98. Mr C asserted that he had a conversation with the defendant in which he said that the plaintiff and her mother were arguing because of what the defendant did to the plaintiff. He effectively asked the defendant to telephone the plaintiff's mother to tell her what he had done. Mr C gave evidence that the defendant replied: “I've heard that [A] was okay with it” and then hung up.

99. Mr C gave evidence that over the years the plaintiff was very anxious and stressed all the time and appeared to be depressed. He said the plaintiff took medication and rested frequently. At his work, Mr C said that the plaintiff's function was to do the book work and bring the patients in and out. He said that the plaintiff often got into work late and after a few hours had another rest. In relation to house work, Mr C said that he helped out.

Cross examination

102. Mr C was cross-examined in relation to a number of matters concerning his interaction with the defendant and the plaintiff relating to the plaintiff’s recollections of the alleged sexual assault.

103. Mr C indicated that he did not recall being introduced to the defendant by his future wife before their marriage when they arrived at a barbecue by car in K. He stated that the plaintiff did not call the defendant over and introduce him to Mr C.

104. Mr C agreed with the proposition that he had discussed the details of the alleged sexual assault with his wife on many occasions over the last 44 years: T188.1. When it was put to him that the details were discussed many times a year, he said that they were not discussed through the whole of their marriage. However, he conceded that over the xx years of his marriage to his wife that they had discussed the incident “hundreds of times”: T188.8. He also agreed that when he was discussing with his wife whether to bring the proceedings he discussed the facts of the incident with her. He agreed that he could not remember every occasion when he discussed the details of the incident with her over their marriage. However, Mr C said that he did remember some occasions. He agreed that he could not remember the precise words used in those discussions but could remember his understanding of what was said.

105. Mr C agreed that if his wife won the proceedings and recovered damages that he would benefit from that and similarly if she lost the proceedings and a costs order was made against her that he would be financially worse off. He also accepted that if the court found that a sexual assault had occurred that his wife would be vindicated and that this would assist her emotionally.

106. Mr C was then asked a number of questions about his evidence in chief given at T163-167 concerning his initial discussions with the plaintiff about her sexual experience. Despite his evidence at T167.7 where Mr C stated that he asked his wife about her sexual history on “quite a few other times”, Mr C disputed this. He said that he had only asked her once whether she had been with anyone else prior to the marriage and never asked her who it was: T192.30 cf T191.32. After extensive further cross examination, Mr C accepted that prior to his marriage he had asked his wife whether she had been with anyone sexually prior to him quite a few times: T195.7; T196.2. He said that she responded only once to his questions prior to the marriage but otherwise did not respond: see T167.35; T195.11.

107. Mr C was then asked a number of questions about his evidence in chief at T167.38 and T172.45-T173.42. Mr C said that his evidence in chief was incorrect that his wife did not identify the perpetrator in her account: T172.14-.38; T199.20. He said he wished to change his evidence and he should have given evidence that she had used the defendant's name: T201.11. Mr C conceded that his evidence in chief was wrong, that his wife did mention the name of the defendant and he said that in giving his evidence he regarded it as being “easy to get confused and nervous”. Mr C's evidence was confusing in relation to this issue. The cross-examination was extensive and he appeared to have real difficulties in following the questioning. He rejected the proposition that he pressed his wife into agreeing that the perpetrator was the defendant: T206.12. Mr C said he never suggested the defendant to the plaintiff and kept his own counsel as to the identity of the perpetrator.

108. [Confidential].

109. Mr C was then asked whether he had spoken to the plaintiff's mother in relation to the alleged sexual assault in about 1977 in the mother's kitchen. He rejected this. He also rejected that the mother's friend Ms E was present during the conversation. Mr C denied that he asked the plaintiff's mother to “wake-up Mrs [B] and tell her that her son had raped [A]” and that the plaintiff's mother replied “I don't think so”.

110. Mr C agreed that he had met the plaintiff's mother at [the plaintiff’s brother F’s] house and had asked F to arrange the meeting. He denied telling the plaintiff's mother that he was obsessing about the issue and was seething in relation to it: T208.46. He said he was going to see a psychologist in the hope that his wife would come with him at the time.

111. Mr C accepted that he saw the defendant at K at the AA and had accused the defendant of raping his wife. He denied that he walked rapidly past the defendant and said to him words to the effect: “You should be in gaol”, without giving the defendant an opportunity to reply. He denied that the defendant was with his brother at the time. Mr C agreed that he had obtained the telephone number of the defendant and had rung him. However, he said this only occurred on one occasion and he denied that it occurred many times. He also denied when he suggested to the defendant that he had raped the plaintiff that the defendant replied: “No, I did not, we had an affair” or words that effect.

112. It was put to Mr C that his recollection of conversations had faded over time and that he had had numerous conversations with the plaintiff and others in relation to the incident. He said he had numerous conversations with his wife about the incident but not with others: T210.39.

113. Mr C was later recalled and it was put to him that when he had a conversation in the kitchen with the plaintiff's mother in 1976 she asked when the incident was supposed to have happened and he replied “the night you went to [V's]”. Mr C denied that this conversation occurred. Mr C later denied in further evidence the evidence of Mrs D [plaintiff’s mother] as to a conversation with her on the balcony at F's place in about November 2014.

Oral evidence of Mr F

114. Oral evidence was given by Mr F, the youngest brother of the plaintiff. Mr F gave evidence that he first heard of the defendant committing a sexual assault on his sister, the plaintiff, in around 2003. He said at that time he was living with the plaintiff and her husband for two or three weeks. Mr F stated that he was informed by Mr C that the plaintiff had been raped when she was younger. He gave evidence that Mr C stated that the plaintiff was raped by the defendant and it happened in a car in the front seat. [Confidential].

115. Mr F said that he arranged for Mr C to meet with his mother. This was following a conversation with Mr C when he asked whether it was permissible to speak to the plaintiff's mother in relation to the rape. Mr F said that when he came home he found his mother in tears and he spoke to Mr C asking him to revisit the matter with his mother at another time.

116. Mr F stated that Mr C informed him that he could not sleep of a night and that he went over the incident again and again and had arranged a psychological appointment in November 2014. He said Mr C was crying at the time and he offered to go with him to the appointment despite it being on Mr F's birthday. Mr F stated that Mr C later informed him that he was not going to the appointment.

117. Mr F was extensively cross-examined in relation to his recollection of his conversations with Mr C. Mr F said that he believed the first time he was asked to recall the conversations in about 2003 by anyone was when the police investigation happened which he put as being five to six years ago. He had agreed that he had not recorded the various words that Mr C had used anywhere and only became aware of the alleged rape in 2003 when he was living with the plaintiff and her husband.

118. Mr F stated that he could recall some sentences in the conversation with Mr C and [confidential].

119. Mr F confirmed that he had had conversations with the defendant but believed it was after the police investigation. He agreed that he spoke to the defendant to obtain his version of what had occurred. He said the defendant confirmed that he had had “sex” with his sister: T227.23. He also agreed that he had a conversation with his mother about what had occurred soon after Mr C had alleged that the plaintiff had been raped. He could not recall how many conversations he had had with his mother on the issue but said that he had had no more than three conversations with the defendant. [Confidential].

120. He also stated that subsequent to 2002-2003 he had not been taking medication for anything.

121. I found Mr F to be a convincing witness. I formed the firm impression that he was giving his evidence honestly and carefully. He made concessions where appropriate. [Confidential]. To the extent there is a difference between Mr F and Mr C on this issue, I clearly prefer the evidence of Mr F. He was clear, precise and convincing on the issue. He also did not appear to have any reason to fabricate the conversation. He had previously been on close terms with Mr C.

Oral evidence of the defendant [Mr B]

Examination in chief

122. The defendant stated that he was born in June 195x and was thus nearly xx at the time of the final hearing. He said he first became acquainted with the J family when he was 14 or 15. He said that S [plaintiff’s elder brother] attended his school [confidential] and he got to know the whole of the J family in due course. He stated that he came to know the plaintiff due to her involvement in the L [sporting] community. He stated that in 1970 to 1971 he undertook [sporting] training three or four times per week and different people attended [sporting] training at different times.

123. Mr B confirmed that at some stage his relationship with the plaintiff became more than friendship. He recounted an occasion where the plaintiff attended dinner at his house with his brother-in-law, Mr N. He said he went to check on his infant son in a room and the plaintiff followed him and they began talking. He conceded that he initiated kissing with the plaintiff despite being married at the time. He stated that after the kissing became passionate he pulled away as he was afraid that either his wife or brother-in-law may see them: T232.38.

124. The defendant gave evidence that he was married in December 197x and his son was born in January 197x. He said he married at the age of xx. He stated that his wife was a nurse at K Hospital and undertook the same shift which commenced at about lunchtime and continued until 10 or 11pm at night. Mr B stated that after about two to three months after the kissing occasion at his house the plaintiff started arriving unannounced at his house in the late afternoon when his wife was not there. A relationship further developed. He said initially it was only friendship but then became more passionate with kissing and cuddling. He said that the plaintiff had said no to him in relation to sex: T233.39-T234.14. Mr B stated that the plaintiff had come around to his house at least on 10 or more occasions or 12 occasions: T234.26.

125. The defendant rejected that the incident occurred recounted by the plaintiff after they attended the swimming pool in K. Similarly, the defendant rejected that the incident had occurred which was recounted by the plaintiff as having happened in her parents’ bedroom when she was about 14.

126. The defendant then gave his version of the night of the alleged sexual assault. He said he went around to the plaintiff's house in his car as he had always planned to move to Sydney and had organised to travel there. He said he went around to the plaintiff to tell her that he was leaving for Sydney. Despite the contents of paragraph 4 of the Defence where it is pleaded that the defendant telephoned the plaintiff and arranged with her for him to attend the plaintiff's house and go for a drive, the defendant gave evidence that he could not recall telling her that he was coming around. Later in cross-examination, the defendant indicated that the first he heard that the Js did not have a telephone at the time was when counsel for the plaintiff stated that in court.

127. Mr B indicated that at that time he had one car, a white 1972 X which he had shortly before purchased new and which had bucket seats. He said that his house was about 3 to 4km from the plaintiff's family house and his wife at that time was working as a nurse at K Hospital. He could not recall what he was wearing on the night in question.

128. Mr B stated that he parked his car out the front of the plaintiff's house in the street and went into the house. He said he could not recall knocking on the front door and had been there hundreds of times. He recalled talking with the plaintiff in the family lounge room but did not recall sitting down but said that he may have. Mr B did not recall what the plaintiff was wearing on the evening in question.

129. The defendant said that he asked the plaintiff to come for a drive with him as he intended to tell her that he was moving to Sydney. He stated that they walked out the front of the house and got into his car with the plaintiff sitting in the passenger seat. He denied kissing or touching the plaintiff in doing so.

130. Mr B stated that he then drove the car to the car park at the K Hospital. He said he was often at the hospital as his wife worked there and he picked her up and it was well lit. He initially estimated that it took between 10 and 15 minutes to drive to the hospital car park. He stated that it was between 8 and 8:30pm when he picked the plaintiff up and it was dark at the time: T238.16. He said he parked his car with the nose into the gutter. He could not recall other cars being present in the car park but believed that there were no other cars and it was not busy.

131. Mr B stated that he then talked with the plaintiff for a period of about half an hour or more and during that time they kissed and cuddled. He then said he got out, walked around to the passenger side of the car, opened the door and pulled the plaintiff's legs around and removed her underwear using both his hands. Significantly, he said that the plaintiff said nothing whilst he did this: T239.37. He said he lay on top of the plaintiff and penetrated her. He then said that the plaintiff immediately pushed him off with both her hands and said “no” and he got straight off her and got out of the car. He said that the plaintiff then got out and commented that she had blood running down her leg. The defendant said he went to the boot of the car and got a blanket and gave it to her to wipe her leg. At this time, he was standing next to her. He believed that the plaintiff was wearing a dress and the dress was down. He said the plaintiff wiped her leg and then gave the blanket back to him. He noticed blood on the seat of the car which was a vinyl seat and he wiped it off with the blanket which he placed in the boot. He then said that he and the plaintiff got back in the car, that she was crying and he felt in shock as although he was married he was not experienced. He said he had never had an experience previously like that. The defendant said he assumed that the plaintiff wanted to go home and he drove her home and dropped her off near the house next door as he did not want people to see him there as he was married. He said when he dropped the plaintiff off, she was still crying: T242.27. The defendant said that he did not see blood on the plaintiff's clothes after the incident including on her dress. He said he could not recall the date or month of the incident.

132. Mr B said that he moved to Sydney in September or October 197x. Prior to moving to Sydney, he said he attended a farewell given for him at the house of the plaintiff's uncle. He said he saw the plaintiff at the farewell and he believed that he spoke to her but he was not sure: T243.41. He said the plaintiff did not mention the incident to him at the farewell.

133. The defendant gave evidence that he met the plaintiff on another occasion in Sydney in xxx Road in Y. This significant meeting was also referred to in the plaintiff’s evidence. The defendant said he believed he had been to a chiropractor in Y and met the plaintiff as she was also walking down xx Road. He asked the plaintiff whether she wanted a lift and she said yes. He said his car was parked in the street and they walked to the car. This was the same X car that he had been driving on the night of the incident. He denied mentioning anything to the plaintiff about buses: T244.34.

134. He said the plaintiff got in the car and he was driving her home and stopped near a park to talk. He said he attempted to kiss the plaintiff and she said words to the effect “No, I don't want to do that anymore”: T244.37. The defendant said that he said “okay, that's fine”. He said that at the time he was under the impression that the plaintiff had followed him down to Sydney: T244.42. He said he was not sure whether they talked anymore or he just drove her home. He stated that she was living at that time in Y: T245.9. Accordingly, the defendant picked the plaintiff up in Y and took her to the home she was staying at also in Y: T245.12. The defendant said that he was living either at Lakemba or Oatley at that time.

135. Mr B stated that the first time he saw the plaintiff with her current husband was at a barbecue at Easter in K during a L [sporting event]. He said he could not remember the year. He said just as he was leaving the barbecue the plaintiff and her husband pulled up in the car and the plaintiff rolled the window down of the car and introduced him to her husband. He said that the plaintiff and her husband then went into the barbecue and he went home.

1. I therefore accept that Mr C raised the issue with Mrs D at Easter in 1976. I was more impressed with Mrs D's recollection than that of Mr C and the plaintiff in relation to this issue. I prefer her account of it. Although I found Mr C overall to be a careful witness, he gave inconsistent evidence as to whether the plaintiff had initially disclosed the defendant's name. At first he said that she had not but he had made his own enquiries and knew the defendant’s identity as the alleged perpetrator. He then changed his evidence and said that she did refer to the defendant's name. Overall, in my view, Mr C appeared to wish to portray that he had a better recollection of events than he actually had. I found Mrs D to be a careful, thorough and convincing witness in relation to the Easter 1976 discussions. I prefer Mrs D’s evidence on this issue to that of Mr C and the plaintiff.

2. Mrs D gave evidence that her daughter had never raised the issue of the sexual assault with her. The plaintiff was clearly very upset about this issue. It was an issue which appeared to dominate her life particularly from the early 1980s if not before. In my view, it is likely that she would not have raised it with her mother but would have left it to Mr C as he was particularly worried about the plaintiff’s account.

3. [Confidential].

4. [Confidential].

5. Mrs D gave an account of a conversation which she had with Mr C on the balcony at Mr F's home in which he indicated that he thought he was having a nervous breakdown and was seething. He said he had difficulty coping with the fact that his wife had a sexual relationship before he was married. Mr C denied the conversation. Mrs D was clear and precise in her evidence. Having seen both witnesses, I accept and prefer her evidence. It was also generally consistent with Mr F’s evidence.

6. [Confidential].

7. Following the discussions with Mr F in 2014, the plaintiff decided to take her concerns in relation to the alleged sexual assault to the New South Wales police. I accept that she saw the police on a number of occasions. There was before me no evidence that any criminal proceedings have been taken against the defendant following the plaintiff seeing the police.

8. The plaintiff commenced these proceedings in 2018.

Medical findings

224. As indicated above, the plaintiff relied on a number of medicolegal and treating reports. I accept the first report of Dr B dated 29 January 2019, that the plaintiff was taking appropriate prescription medication but she was diagnosed with PTSD. The plaintiff also had anxiety. I accept the opinion of Dr B in this report that with treatment the plaintiff's mood had improved and she was feeling better. I accept that the history which the plaintiff gave to Dr B was generally consistent with her evidence of the alleged assault in the case. The plaintiff had previously been diagnosed with PTSD or an adjustment disorder by psychologists in 2015 and 2018. I accept the opinion of Dr B that the plaintiff’s PTSD was, on the plaintiff's history of the alleged sexual assault, linked to that. I also accept the finding that the plaintiff has shown resilience and did not appear to have any limitations with regards to previous domestic and recreational activities or to her employment opportunities. I also accept the opinion of Dr B that the delayed reporting of sexual abuse is common in circumstances where the victim felt shame about what had happened. At that time, Dr B recommended treatment for two years.

225. In a later opinion dated 6 April 2021, Dr B diagnosed PTSD and generalised anxiety disorder. She based that on the plaintiff continuing to have recurring thoughts of the incident and the responses from the defendant and her family, flashbacks and nightmares and depression and anxiety and suicidal ideation. Dr B noted that the plaintiff said she continued to work full-time in her husband's business but was finding it hard due to anxiety. I accept Dr B’s opinion that the plaintiff continued to show resilience and was able to work but found relationships difficult. I also accept her opinion that the plaintiff was not partially or totally incapacitated for domestic duties and was able to enjoy social and recreational activities.

226. I accept Dr B’s recommendation about the continued need for the plaintiff to have antidepressant medication for a further six months following the court hearing with review and counselling.

227. The plaintiff appeared to be a sincere and honest woman. As stated above, I have no doubt that she believes that she was sexually assaulted by the defendant in September 1972. I find that she has chronic PTSD and generalised anxiety disorder as Dr B states. I find that she continues to suffer symptoms of anxiety and depression. I find that she continues to need the treatment referred to at Exhibit A page 36. In my view, a factor in the plaintiff’s condition and the need for treatment is her husband's response to the allegations and the strong and obsessive view he has taken in relation to the defendant's conduct. Despite that, I accept the plaintiff's evidence as set out in Dr B’s opinion that he remains kind and supportive to her. The plaintiff is placed in a difficult position having regard to her husband's attitude over many years to the alleged sexual assault.

Consent of the plaintiff

228. One issue which was raised by the parties is whether the plaintiff consented to the alleged sexual act even on the defendant’s case.

229. On the plaintiff’s version, the alleged incident being a violent sexual assault clearly constituted the criminal offence of rape under s 63 of the Crimes Act 1900 (NSW) as it then existed. The plaintiff was then over 16. There was therefore no issue in relation to the age of consent which was 16 for male/female sexual acts involving penetration. On the defendant’s case, if it is accepted, there would appear to be significant doubts that any crime occurred at all. The real issue for present purposes is whether there was consent in relation to the tort of battery on the defendant’s case.

230. In Gorman v McKnight [2020] NSWCA 20 the Court of Appeal considered the nature of consent which must be established in relation to a tort claim based on an alleged sexual assault. In Gorman a number of the complainants alleged offences constituting sexual assaults said to have been committed against them when they were minors. The action involved an action in damages against the estate of the alleged perpetrator. The Court of Appeal considered the nature of the consent required. Bell P (with whom Payne JA and Emmett AJA agreed) stated the following at paragraphs 72-77:

“72.  There is, however, an important distinction between the fact of consent (and its availability as a legal defence), on the one hand, and a person’s belief as to another’s consent, on the other hand. The latter may form the basis of a defence to criminal charges in some but not all contexts (for example, not where the criminal offence exists irrespective of consent: see [7] above). In the context of consent as a defence to a claim in tort, however, when and if such a defence is available (as to which see further below), it is the presence or absence of consent that matters. That, in turn, will principally turn on an analysis of the evidence of the plaintiff in any given case and an assessment of his or her conduct at the time in question, including his or her age and experience. It would not be affected by any evidence as to Mr Judd’s state of mind (see Moon v Whitehead [2015] ACTCA 17 at [22] (Moon)) so that his inability to participate in the trial should not in this regard be considered to be a material source of prejudice.

73.  Views differ as to whether the absence of consent is an element of a cause of action based on trespass to the person, assault or battery or, rather, is a matter that, if available as both a matter of law and on the facts, falls to be pleaded as a defence. McHugh J’s judgment, although dissenting on the facts, in Secretary, Department of Health and Community Services v JWB and SMB [1992] HCA 15; (1992) 175 CLR 218 at 310-311; [1992] HCA 15 (Marion’s Case) supports the latter view, as does the decision of this Court in Dean v Phung [2012] NSWCA 223 at [59]- [62], the decision of the ACT Court of Appeal in Moon at [14], and the decision of the Supreme Court of Canada in Norberg v Wynrib [1992] 2 SCR 226 at 246 and 303 (Norberg). A number of decisions support the former view, however, including the learned discussion of the issue by Leeming JA in White v Johnston (2015) 87 NSWLR 779;[2015] NSWCA 18 at [94]- [129]; see also Freeman v Home Office (No 2) [1984] QB 524 at 539; J Goudkamp, Tort Law Defences (Hart Publishing, 2016) at 3.61; SKN Blay, “Onus of Proof of Consent in an Action for Trespass to the Person” (1987) 61 ALJ 25.

74. As has been noted at [10] above, Mr McKnight has positively pleaded that he was a minor who was not legally or psychologically capable of consenting to sexual acts with an adult male and, by necessary implication, did not consent to the sexual assaults so that nothing is likely to turn on the debate as to onus in his proceedings. The absence of consent is not raised explicitly in the Channell and Gammage pleadings, and whether or not it should have been positively pleaded was not a matter that was debated before the Court of Appeal. During the hearing, Mr Weinberger on behalf of Mr Gammage took the position that there was “consent” in the sense that his client returned on a regular basis to Mr Judd’s property after each assault, and was not forced to do so but that, because of his age, he was lawfully not capable of giving his consent.

75.  Consent has not in fact to date been pleaded by way of defence to any of the three underlying sets of proceedings. This is despite the fact that defences (described by Mr Neil in argument as “holding defences”) have been filed and it would appear that the Estate, based upon Mr Wrench’s evidence and the plaintiffs’ witness statements to police (insofar as they record that each plaintiff came back to Mr Judd’s farm on a regular basis notwithstanding sexual assaults on prior occasions, and without any apparent physical coercion to return or engage in sexual activity), would be in a position to do so.

76.  If consent is pleaded as a defence to the claims, the plaintiffs in each set of proceedings will either put that in issue as a question of fact and/or contend that consent is not an available legal defence to a civil claim for damages for sexual assault of a minor. Issues may arise going to the reality of any apparent consent and/or its availability in circumstances where the plaintiffs may have lacked the maturity to give such consent (see Marion’s Case at 311). In Norberg, La Forest J, delivering the judgment of himself, Gonthier and Cory JJ, observed (at 247) that:

“A ‘feeling of constraint’ so as to ‘interfere with the freedom of a person's will’ can arise in a number of situations not involving force, threats of force, fraud or incapacity. The concept of consent as it operates in tort law is based on a presumption of individual autonomy and free will. It is presumed that the individual has freedom to consent or not to consent. This presumption, however, is untenable in certain circumstances. A position of relative weakness can, in some circumstances, interfere with the freedom of a person's will. Our notion of consent must, therefore, be modified to appreciate the power relationship between the parties.”

In the same case, Sopinka J observed (at 304) that:

“In assessing the reality of consent and the existence and impact of any of the factors that tend to negate true consent, it is important to take a contextually sensitive approach. ... Certain relationships, especially those in which there is a significant imbalance in power or those involving a high degree of trust and confidence may require the trier of fact to be particularly careful in assessing the reality of consent.”

cf. R v Howard [1966] 1 WLR 13 at 15.

77.  Furthermore, it may well be that, as a matter of common law and informed by the public policy manifest in legislation at the time of the alleged assaults (see [7] above), and considerations of legal coherence, even actual consent, if established, may not be available as a defence: but see Bain v Altoft [1967] Qd R 32 at 41 per Gibbs J; cf. W Page Keeton et al (eds), Prosser and Keeton on Torts (5th ed, West Publishing Co, 1984) at 124 where it is said:

“If the defendant’s conduct is punishable as a crime primarily or substantially because of its harmful consequences to the consenting party, then there is good reason to take the position that consent will not be regarded as effective to bar a tort action, especially if the consenting party is not pari delicto or in equal fault, with the defendant.”“

231. In summary, the following propositions emerge:

1. There is a distinction between the fact of consent on the one hand and a person’s belief as to another’s consent, on the other hand. In the context of consent as a defence to a claim in tort, it is the presence or absence of consent that matters;

2. The presence or absence of consent will turn principally on an analysis of the evidence of the plaintiff in any given case and an assessment of his or her conduct at the time in question, including his or her age and experience;

3. There are differing views by appellate authorities as to whether the absence of consent is an element of a cause of action based on trespass to the person, assault or battery or is a matter which falls to be pleaded as a defence. Clearly consent was in issue in the present case;

4. In some cases consent even actual consent, if established, may not be available as a defence to certain torts. This is particularly the case if the defendant’s conduct is punishable as a crime because of its harmful consequences to the consenting party;

5. All the facts and evidence need to be carefully considered.

232. I regard myself as bound by the statements of principle by Bell P. I reject paragraph 13 of the defendant’s written submissions to the extent it suggests that I should adopt some other test to that stated by Bell P.

233. The following background matters should be noted:

1. The defendant was a long standing friend of the plaintiff’s family and brothers;

2. The defendant was three years old than the plaintiff;

3. The plaintiff was 16 years of age and, on her evidence, which I accept, was a person who had not engaged in any sexual activity prior to the night in question;

4. The defendant was young but married at the time;

5. The defendant had initiated kissing on a few occasions with the plaintiff prior to the incident in question;

6. There is no evidence that the defendant held a position of authority in relation to the plaintiff such as a teacher or sporting coach;

7. On the evidence of both the plaintiff and the defendant, the defendant did engage in sexual activity with the plaintiff on the night in question involving penetration. At the time, the age of consent was 16 years for male/female sexual intercourse under the Crimes Act 1900.

8. On the plaintiff’s evidence, there was a violent sexual assault and there clearly was no consent by her.

9. In my view, despite her inexperience, the plaintiff at the time was intelligent and able to readily perceive sexual activity. On her evidence, she had already prevented the defendant seeking to remove her bathing costume after the alleged swimming pool incident. In my view, the plaintiff was able to provide her consent.

10. Having regard to the plaintiff’s intelligence and age, I reject the proposition that the plaintiff lacked the maturity to give consent to a sexual activity including intercourse.

11. Despite the submissions on behalf of the plaintiff, I do not accept that the relationship between the plaintiff and the defendant as evidenced in the proceedings was such that the defendant was in a position of dominance. He was only three years older than the plaintiff and was a friend of the plaintiff’s family. There is no suggestion, for example, that the event occurred in a remote location in the outback or that the plaintiff was unduly vulnerable and reliant on the defendant for protection or security.

12. In my view, the defendant’s evidence is consistent with the plaintiff having provided her consent to the sexual activity. On the defendant’s evidence, he got out of the vehicle and walked around and opened the passenger door and moved the plaintiff’s legs. He then stated then he removed her underpants. There was no clear evidence from the defendant that any objection was taken by the plaintiff at that stage. He must then have taken actions to undo his clothing to enable sexual activity to have taken place. There is no suggestion by him that the plaintiff made any complaint at that stage. In addition, on the defendant’s evidence he placed his body so that he was able to penetrate the plaintiff’s vagina. It was only at this stage on his evidence that the plaintiff said no and pushed him forcibly with her hands off her. In my view, as a matter of fact, having regard to the defendant’s version alone, there was consent by the plaintiff to the defendant’s acts up to the stage when she said no and pushed him off her. This can be inferred for the purposes of the civil action from her absence of taking action or making complaint prior to that time. Whilst the defendant’s recollection on all matters that night was not strong he rejected the central case of the plaintiff;

13. The defendant’s account of the conduct in the car was given by him in a straightforward way and was plausible. He did not appear to me to be fabricating his evidence, although there are inherent difficulties in forming an accurate conclusion, as referred to by the High Court in Fox v Percy;

14. The real issue is whether this conclusion is altered in the light of all of the evidence, particularly the plaintiff’s account. As the authorities which Bell P quoted stated, this will principally turn on an analysis of the evidence of the plaintiff and their conduct at the relevant time.

234. Accordingly, on the defendant’s evidence there was initial consent by the plaintiff in my opinion for the purposes of the law of battery: see T194.15-.28 and T195.47-T196.5.

235. Even if I reject the defendant’s account as being unreliable due to his poor recollection and inconsistent evidence, I must be satisfied in relation to the plaintiff’s account of the alleged incident. The issue of the onus in relation to consent in the case of battery or trespass to the person was left open by Bell P in Gorman: see paragraph 73. In the pleadings, an absence of consent is positively pleaded by the plaintiff in the Amended Statement of Claim: paragraph 10. In the Defence filed 21 December 2018, the defendant denies the allegation of a lack of consent and positively pleads that the “Plaintiff was actively involved and consented to the sexual activity that took place”: paragraph 6. In the absence of a concluded view by the High Court, I will follow the most recent Court of Appeal analysis being the detailed and learned decision of Leeming JA (with whom Barrett and Emmett JJA agreed) in White v Johnston (2015) 87 NSWLR 779; [2015] NSWCA 18 at [94]-[129]. His Honour held that the legal burden remained on the plaintiff to prove an absence of consent: see at [125] and [128]. With respect, I find his Honour’s analysis to be convincing. The onus rests on the plaintiff to negative consent. This seemed to be accepted by counsel for the parties during oral submissions.

Whether the plaintiff's allegations of the sexual assault by the defendant are established

236. Having considered all the evidence, and having reflected on the versions of the plaintiff and the defendant of the evening in question in the light of the evidence of Mr C, Mrs D and the statement of Ms E, the court is not satisfied on the balance of probabilities, taking into account the seriousness of the allegations made against the defendant, that the plaintiff has made out her case as pleaded in the Amended Statement of Claim and as given in her oral evidence. In arriving at this conclusion, I have considered carefully the various matters raised in the plaintiff’s written and oral submissions. I have reviewed in detail the plaintiff’s evidence.

236. The matters which lead the court to this conclusion are as follows:

1. Although Mrs A impressed the court as an honest and sincere witness, the evidence was that between 1974 and the present, the plaintiff and her husband had discussed the alleged incident “perhaps hundreds of times”: T188.8; T108.44. I accept that evidence. These discussions extended to whether the plaintiff should commence these proceedings: T188.16. On the basis of this evidence and the evidence of Mr F and Mrs D, the plaintiff’s husband appeared to be obsessively focussed on the matter and has ruminated over it regularly for over 40 years. I accept he is a dedicated husband and is devoted to the plaintiff. However, the plaintiff’s pre-marital sexual history has caused real upset and focus in the marriage. Although some discussion even detailed discussion on the matter between spouses is to be expected having regard to its seriousness, the substantial risk of reconstruction and inaccurate elaboration or embellishment on the incident over those hundreds of discussions over many years is in my view a real one and must be taken into account. In doing so, I also take into account that the plaintiff has reported the incident to health professionals and the police;

2. The evidence of Mr F at T224 is troubling. I accept and prefer his evidence to that of Mr C. He had no reason to fabricate the evidence and he was an impressive witness. It provides substantial support for the concept that there has been a reconstruction of the events of the alleged sexual assault by the plaintiff and her husband over the years since their marriage. This was contrary to their oral evidence;

3. Although the defendant had a poor recollection on some matters, was willing to assume incorrectly some matters for the purposes of his Defence and I have not accepted aspects of his oral evidence, he did not appear to me to be lying on the central issue. That, however, may be simply his incomplete recollection of a matter which was not particularly significant to him at the time;

4. The plaintiff’s willingness to accept a lift from the defendant at Y in early 1973, about six months after the incident, and thereby sit alone in the same car and seat where the alleged violent sexual assault occurred is significant. The plaintiff was only 16 in a strange city (Sydney) and may have finished late from her work but I find it difficult to accept that she would take a lift from the perpetrator of an alleged violent sexual assault to her when they were to be the only occupants of the vehicle. As a young woman in a new city, her safety would be very important to her. Both her place of work and place of residence were in Y and the plaintiff had other options (walking or taxi) at her disposal. This raises real concerns about the accuracy of the plaintiff’s case as to the sexual assault. In my view, contrary to the submissions of counsel for the plaintiff, this goes to liability and not just damages;

5. The plaintiff’s acceptance of the defendant and his then wife being present at her wedding in early 1976 is relevant. The plaintiff alleges a violent sexual assault was committed on her by the defendant. The plaintiff said she did not want the defendant to attend the wedding but he was invited. Even assuming the plaintiff’s mother was a person of strong personality and arranged the invitation list, it would be expected that the plaintiff would take more active steps to ensure the defendant did not attend her wedding if the violent sexual assault had occurred as she states;

6. The evidence of Mrs D. The plaintiff stated that she “never went out with [the defendant] when he was married”: T92.16. The defendant was married in late 197x. Even allowing for some inconsistencies in Mrs D’s evidence as discussed above, her evidence of what she said when the plaintiff allegedly came home on the night of the alleged assault is only consistent with the plaintiff having been out with the defendant after he was married. Mrs D was clear and persuasive in her evidence on this point: T300.2. I have accepted it;

7. The statement of Ms E. The account of Ms E provides some support for Mrs D’s account, particularly that when the plaintiff arrived home she said she “had been out with [Z] [the defendant], he just dropped me home”: Exhibit 4 paragraph 8. Ms E also provides some support for the comment being made after 10.00pm at night: paragraph 15. I take into account that Mrs D may well have discussed the matter with Ms E. I also take into account that Ms E was not cross-examined and tested on her statement;

8. The defendant did not know who would be home when he arrived at the J home on the night of the incident. I accept his evidence on this point. For all he knew Mrs D and the plaintiff’s second brother and sister would be home. This is inconsistent with a planned assault by the defendant as the plaintiff seems to allege;

9. The plaintiff’s other contact with the defendant in 1973 in Sydney is of some relevance but not significant. Although the plaintiff spent time with the defendant and his then wife after the alleged sexual assault (including in the car where the incident was supposed to have occurred), it was in the presence of other persons when the plaintiff would have felt protected;

10. I do not find the absence of recent complaint to be particularly persuasive in the light of the medical evidence. Victims frequently do not report sexual crimes immediately.

238. At the end of the day, the plaintiff’s version of the alleged sexual assault is possibly correct but I am not satisfied that it has been established on the balance of probabilities taking into account the seriousness of the allegations made. I find that the absence of consent has not been established to the requisite standard.

Damages

Introduction

239. It is necessary for me to assess damages in this matter in the event that I am found to be in error in relation to my factual and legal conclusions in the matter. I proceed to do so, on the basis that the plaintiff's account of the alleged sexual assault is preferred.

240. If the plaintiff’s factual account is accepted, then it seems that the plaintiff's current medical condition of PTSD and generalised anxiety disorder, together with flashbacks and nightmares, depression and suicidal ideation at times, is at least principally caused by the claimed sexual assault. On the plaintiff's evidence, she had no prior sexual experience at the time of the assault. I accept that evidence. Although I have found that there has been obsessive and ruminating conduct by Mr C, I accept the medical evidence that the plaintiff's medical condition is connected to the alleged sexual assault. In other words, I find that if the plaintiff’s version is accepted the alleged sexual assault is a common sense cause of her medical conditions.

241. It is always very difficult to assess damages as compensation in a civil matter in relation to a sexual assault. As I have previously stated, on one level no amount of money can compensate for sexual abuse. Although I stated that in the context of persistent sexual abuse over a lengthy period of a party as a child, similar comments would apply to the plaintiff when this occurred at aged 16. The court has a duty to make a proper assessment of damages in accordance with legal principle: KS v GR [2020] NSWDC 73 at [42].

242. There is no claim in the present case for gratuitous domestic services which would make relevant provisions of the Civil Liability Act 2002 (NSW): see Gersbach, above, at paragraphs 481-483. Damages are therefore to be assessed in accordance with the common law.

General damages

243. I accept the statement of Garling J in Gersbach, above, at paragraph 504 that the sum to be awarded for general damages is a sum “to compensate a plaintiff for all of the physical harm and mental harm suffered by the plaintiff as a result of the conduct of the defendant”.

244. In the present case, only one occasion of sexual assault has been relied upon. This is not to diminish its seriousness if it is accepted to have occurred as stated by the plaintiff.

245. The plaintiff seeks $250,000-$300,000 in general damages. In my view, this is excessive. Although the plaintiff had no prior sexual experience, an assault occurred on only one occasion. The plaintiff appears to have been able to continue her usual life including schooling, employment, marriage, having children and then working for her husband in his business, after the assault. I accept that the evidence shows that the alleged assault has had a profound effect on the plaintiff and has influenced the whole of her life including her marital relationship and mental health. I take into account that the sexual assault involved force and, on the plaintiff's account, if accepted, that she resisted it and told the defendant to stop. I take into account that the assault if found involved penile/vaginal penetration. I take into account, as stated, that the plaintiff has had very serious mental health and psychiatric conditions as a result of the assault including suicidal ideation and the need for prescription medication. I reject the submission of the defendant, on this scenario, that the impact on the plaintiff’s relationship with her husband has been caused by his reaction and not by the assault.

246. The defendant submits the general damages should be assessed at $120,000. In my view, this is too low and does not properly take into account the matters referred to in the previous paragraph.

247. Taking into account all the evidence, including the psychiatric evidence which is before the court and the plaintiff's oral evidence, I assess the plaintiff's general damages at $150,000, comprising $100,000 for past damages and $50,000 for future damages.

Interest on past general damages

248. In relation to the assessment of $100,000 for past general damages, it is appropriate to calculate interest on the amount at 4%. As the period to which it relates is a lengthy one, interest should be assessed at 2% over the relevant entire period as the damage should be regarded as evenly distributed: see MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 657 and Gersbach at paragraph 511. I accept the submission of the defendant on this issue: see paragraph 114.

Past out-of-pocket expenses

249. I accept that the relevant past out-of-pocket expenses are $6,618.54. This was accepted by counsel for the defendant in the event that the plaintiff’s account was accepted in the sense that the expenses were reasonably incurred in those circumstances.

Future out-of-pocket expenses

250. The plaintiff claims future out-of-pocket expenses.

251. The plaintiff claims attendance upon a psychologist once per month for two years at $200 per session. This appears to be based on the first report of Dr B: see Exhibit A page 28. Having regard to the second report (Exhibit A page 36), the question is whether this continues to be justified. Having regard to the second report of Dr B, in my view attendance upon a psychologist once per month for two years following the hearing having regard to the plaintiff’s serious psychiatric condition is justified. I allow this amount.

252. The plaintiff also claims attendance upon a psychiatrist four times per annum at $400 per session for two years. In my view, having regard to the second report, this is excessive. I would allow attendance upon a psychiatrist two times per annum for two years. The appropriate amount should be calculated.

253. An amount for medication at $40.00 per month for two years is sought. The second report only allows antidepressant medication for a further six months following the court hearing. I accept this opinion. The appropriate amount should be calculated.

Economic loss

254. An amount has been claimed for a diminution in earning capacity of $150,000-$250,000.

255. The evidence establishes that the plaintiff worked for five to six years for a bank and a department store following the assault before working for her husband as a partner in his business. The medical evidence shows no real diminution in the plaintiff's earning capacity. It is noted that the evidence states that recently because of her medication the plaintiff has been unable to work at required times in her husband's business.

256. Although, of course, the court must look at earning capacity rather than earnings, I find that it is very unlikely that the plaintiff would have worked anywhere else other than her husband's business after the first five or six years of employment. There is no evidence that the plaintiff’s earning capacity for the five to six years after the assault was reduced. The expert evidence establishes that the plaintiff continued to work fulltime in her husband's business thereafter.

257. I am not satisfied in the light of this evidence that an amount should be allowed for a diminution in the plaintiff’s earning capacity. I also take into account the plaintiff’s current age.

Aggravated/exemplary damages

258. The plaintiff seeks $35,000 in aggravated/exemplary damages. In Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1 at [8] the High Court stated: “aggravated damages, in contrast to exemplary damages, are compensatory in nature, being awarded for injury to plaintiff's feelings caused by insult, humiliation and the like”.

259. If the plaintiff's factual account of the incident is accepted, I am satisfied that the plaintiff has suffered significant injury to her feelings and humiliation as a result of the brazen and violent nature of the sexual assault on her evidence. The defendant denied that the sexual assault occurred. Obviously, it is important to avoid double counting of damages in the assessment of any aggravated damages with the assessment of general damages: State of New South Wales v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496 at [130].

260. Although the sexual assault only occurred on one occasion, it was serious and involved violent conduct if found in relation to a 16-year-old young woman. It was brazen if the plaintiff’s account is accepted. I would allow the amount of $25,000 for aggravated damages.

Exemplary damages

261. In my view, the facts of the case do not warrant an award of exemplary damages. None is sought in the plaintiff’s written submissions.

262. The parties should calculate the total amount allowed for damages.

Determination

263. This is a difficult case. The plaintiff appeared overall to believe that a violent sexual assault had occurred. However, on the whole of the evidence I am not satisfied that her case has been established on the balance of probabilities having regard to the seriousness of the allegations made against the defendant.

264. For the above reasons, I make the following orders:

1. Judgment for the defendant against the plaintiff.

2. The plaintiff is to pay the defendant's costs of the proceedings as agreed or assessed.

3. Liberty to the parties to seek a different costs order to that in (2) above within 14 days.

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Decision last updated: 17 September 2021