Ainsworth v Ainsworth

[2002] NSWCA 130

Reported Decision: (2002) Aust Torts Reports 81-664

New South Wales

Court of Appeal

CITATION:	AINSWORTH v AINSWORTH [2002] NSWCA 130
FILE NUMBER(S):	CA 40410/01
HEARING DATE(S):	26 March 2002
JUDGMENT DATE:	13 May 2002
PARTIES :	Anthony David Ainsworth - Appellant Michelle Judith Ainsworth - Respondent
JUDGMENT OF:	Meagher JA at 1; Sheller JA at 2; Santow JA at 82

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	3986/98
LOWER COURT JUDICIAL OFFICER :	Murrell DCJ

COUNSEL:	A J Katzmann SC/N S Jackson - Appellant S Norton SC/A P Healey - Respondent
SOLICITORS:	Macedone Christie Willis - Appellant The Hargreaves Practice - Respondent
CATCHWORDS:	TORTS - physical assaults - deep vein thrombosis - causation - damages - appeal dismissed
LEGISLATION CITED:	Evidence Act 1995
CASES CITED:	Briginshaw v Briginshaw (1938) 60 CLR 336 Abalos v Australian Postal Commission (1990) 171 CLR 167 Rosenberg v Percival (2001) 75 ALJR 734 Ziade v NSW Ministerial Insurance Corporation (Court of Appeal, 26 March 1993, unreported)
DECISION:	Appeal dismissed with costs

CA 40410/01
DC 3986/98

MEAGHER JA
SHELLER JA
SANTOW JA

AINSWORTH v AINSWORTH

The respondent began proceedings in the District Court against her former husband, the appellant, to recover damages for injuries suffered as a consequence of alleged unlawful assaults upon her. Judge Murrell SC found that the appellant had assaulted the respondent on four separate occasions and awarded damages in her favour. Part of the award for damages was based on her Honour's finding that as a result of one or more of the assaults, the respondent had suffered right axillary sub-clavian vein thrombosis.

The grounds of appeal contested almost every finding the trial Judge made. The appellant relied on over 50 grounds of appeal, classified as relating to causation, findings of physical assault, damages and findings of credit.

The substance of the appeal was in the area of causation and whether it was open to the trial Judge to conclude that the deep vein thrombosis was caused or exacerbated by all or any of the assaults. Her Honour's award of damages was also challenged. The appellant alleged that the trial Judge erred in failing to give weight or inadequate weight to the fact that the respondent had been involved in a gun related sexual assault in December 1997.

HELD (per Sheller JA, Meagher JA and Santow JA concurring):

1. There was sufficient evidence, bearing in mind the seriousness of the allegations, for the trial Judge to conclude that assaults had occurred on the four occasions the respondent described and in the manner she described. Ample reasons were given by the trial judge for her conclusions which in substance flowed from her hearing the parties give evidence: see Rosenberg v Percival (2001) 75 ALJR 734.

2. It was open to the trial Judge to prefer the medical opinion of one expert over another: see Ziade v Ministerial Insurance Corporation (Court of Appeal, 26 March 1993, unreported) for a discussion of the difficulties which can arise when medical experts are not called for cross-examination. On the evidence it was open for the trial Judge to find that in one of the assaults the appellant did land a direct blow over the vein which caused the injury complained of.

3. The trial Judge correctly observed that where a plaintiff has made out a prima facie case that incapacity has resulted from the defendant's negligence the evidentiary onus of establishing that the total or partial incapacity would, in any event, have resulted from a pre-existing condition rested upon the defendant. The appellant did not tender evidence of that nature.

4. Once the trial Judge was satisfied, taking account of the seriousness of the charges, that the assaults had been committed by the appellant the issue of causation did not require to be determined in any different way from causation in any other case where a plaintiff claims damages for the results of personal injuries suffered.

There was nothing glaringly improbable about the conclusion reached by the trial Judge in relation to causation. Nor was it inconsistent with any other fact incontrovertibly proved.

4. The trial Judge clearly took account of the effects of the sexual assault on the respondent when making a determination regarding damages.

Legislation cited:
Evidence Act

1995

(1938) 60 CLR 336

(1990) 171 CLR 167

(2001) 75 ALJR 734

(Court of Appeal, 26 March 1993, unreported)

ORDER

Appeal dismissed with costs.

**********

CA 40410/01
DC 3986/98

MEAGHER JA
SHELLER JA
SANTOW JA

Monday, 13 May 2002

AINSWORTH v AINSWORTH

Judgment

1 MEAGHER JA: I agree with Sheller JA.

2 SHELLER JA:

Introduction
The respondent, Michelle Judith Ainsworth, began proceedings in the District Court against her former husband, Anthony David Ainsworth, the appellant, to recover damages for injuries suffered as the consequence of an alleged unlawful assault upon her. Her statement of claim in its final amended form claimed assaults made on four separate occasions, one between mid-April 1995 and 4 July 1995, one on or about 12 June 1995, one on or about 3 July 1995 and one on or about 5 July 1995. The proceedings were heard by her Honour Judge Murrell SC, who, on 14 May 2001, found that the appellant had assaulted the respondent on each of the occasions claimed and awarded damages in her favour in the amount of $572,815. The appellant filed a notice of appeal with appointment in which he relied upon 57 grounds of which some, grounds 31 and 38 to 44 both inclusive, were not pressed. At the hearing of the appeal by leave he added four additional grounds.

3 Part of the respondent’s claim to damages was based on the allegation that as a result of one or more of the assaults she suffered a right axillary sub-clavian vein thrombosis. A good deal of the argument on the appeal was directed to the evidence in support of this allegation as well as the evidence in support of the occurrence of each of the alleged assaults.

District Court Judgment

4 Under the heading “Standard of Proof” Judge Murrell pointed out that the respondent’s allegations of repeated criminal conduct by the appellant resulting in significant injury were serious and referred to s140(2) of the Evidence Act 1995 and to Briginshaw v Briginshaw (1938) 60 CLR 336, particularly at 362-3.

5 At the beginning of her judgment, her Honour dealt with the credibility of the lay witnesses. Those for the respondent were herself, Colin Murdoch, a Pastor of the Churches of Christ, and her parents. For the appellant the witnesses were himself, his parents, his brother, Gregory Ainsworth and his sister, Cathryn Fohn. Judge Murrell was comfortably satisfied that the respondent and her witnesses were honest and reliable in relation to the critical matters about which they gave evidence. She found that the appellant and his mother were dishonest. She accepted that the respondent presented as a volatile, emotional and somewhat histrionic witness who had made allegations that on one occasion at the Family Court both the appellant and his solicitor threatened her and who expressed the view that the appellant may have been responsible for a sexual assault perpetrated on her in December 1997 because the assailant was a bikie and the appellant and his family had a tenuous connection with a bikie family. Her Honour accepted that the respondent’s suspicions and the inferences which she drew in relation to peripheral aspects raised in the proceedings might well be less reliable. To the appellant’s submission that over time the respondent had changed her version of events from one involving hits on the arm to one involving hits on the chest, Judge Murrell said:

“There has been some shift in emphasis. However, reference to the chest was made in Family Court affidavits sworn in 1996 and 1997. I do not consider this to be a matter of significance.”

6 The appellant submitted that the respondent did not raise the issue of ongoing assaults from mid-April 1995 to June 1995 until the very end of her evidence in chief. The trial Judge observed that the matter was referred to in the respondent’s 1996 Family Court affidavit. The trial Judge said:

“10. Many important aspects of the [respondent’s] evidence were corroborated. Before 12 June she complained to her sister Melinda that she had been physically assaulted. She had complained to Dr Soe of the [appellant’s] cruel and controlling behaviour. On 4 July she complained to Dr Lines in relation to the assault of 3 July. Prior to 5 July (when the [appellant] clearly indicated that he wished to separate from the [respondent]) the [respondent] was committed to repairing the marriage. Consequently, there was no motive for her to fabricate the complaints which she made prior to 5 July.
11. Importantly, each of the witnesses whom the [respondent] called in her case was reliable. Each corroborated the [respondent] in important aspects.”

7 The appellant criticised the evidence of Pastor Murdoch, in particular for lying to the appellant about his identity in a telephone conversation in July 1995. Her Honour did not find Pastor Murdoch to be an arrogant witness as claimed and acknowledged that he was mistaken about times and dates but expressed the view that he had an honest and accurate recall in relation to the substance of what transpired. She said:

“I consider it quite understandable that, in the circumstances of the telephone conversation of 5 July 1995, Pastor Murdoch decided to use the ruse that he was the [respondent’s] solicitor.”

8 Judge Murrell regarded the appellant as an unimpressive witness. She observed that on many occasions he seemed to be on the verge of giggling, in the context of belittling the respondent and was particularly anxious during cross-examination. His manner was evasive when he was questioned about contentious matters. There were several significant differences between his evidence and his allegations as put to the respondent and her witnesses in cross-examination. Her Honour said that his sister and father gave little evidence of significance. The father conceded memory problems. The trial Judge did not accept the appellant’s mother’s evidence because of her demeanour and a conflict between what she said on a particular matter at the trial and the contents of her Family Court affidavits. The appellant’s brother was not, in her Honour’s view, a convincing witness.

9 On behalf of the respondent there were filed forty-four medical reports which included reports by eleven medical practitioners. For the appellant there were filed eight reports by five medical practitioners. Not one medical practitioner was required to attend and give oral evidence.

10 The following background material is taken from the trial Judge’s reasons for judgment and is uncontroversial. The respondent was born on 7 January 1965 and obtained her Higher School Certificate in 1983. She undertook a secretarial course and trained as a data entry operator. Thereafter, she worked as a computer operator. Until 9 June 1995 she was working in that capacity on a temporary basis, doing about six hours work per day and earning an average of about $390 net per week. In her childhood the respondent had undertaken some swimming training. She competed in school swimming carnivals throughout her school years. After leaving school, she did not actively participate in sport preferring activities such as socialising, nightclubbing and shopping. She enjoyed dressing up and took pride in her appearance.

11 In about April 1994 she undertook two counselling sessions with Pastor Murdoch in relation to ‘personal matters’. In the second of these she told Pastor Murdoch she had met the appellant. This had happened in April 1994 through a dating agency. The appellant was a calibration technician who worked in his father’s business. In 1993 he had purchased a house at 68 Walter Street, Mortdale. In January 1994 after renovations he moved into the house.

12 From 10 August 1994 the couple lived in a de facto relationship and in November 1994 they became engaged. The respondent telephoned Pastor Murdoch and told him she had become engaged to the appellant. She asked him to conduct the marriage ceremony.

13 By appointment in January 1995 the respondent and the appellant met with Pastor Murdoch to discuss wedding arrangements. In the appellant’s presence the respondent informed Pastor Murdoch that the appellant’s father was pressuring the appellant not to marry her. She stated that his father had offered him a $50,000 sports car if he did not marry the respondent and told him that if he did marry the respondent he would be disinherited. When asked by Pastor Murdoch whether these allegations were true the appellant answered in the affirmative. He confirmed that he was committed to marrying the respondent.

14 In his evidence the appellant denied that his father had threatened to disinherit him or had offered him a sports car if he declined to marry the respondent. He said that his father had merely expressed a desire that they postpone their marriage and live together on a de facto basis. The father denied making the threat or bribe. The appellant denied the conversation with Pastor Murdoch asserting that Pastor Murdoch was deliberately lying about the conversation and had in effect conspired with the respondent to fabricate it.

15 Judge Murrell was not satisfied that the father did offer a threat or bribe to the appellant to try and prevent the marriage but was “well satisfied” that the appellant had told the respondent that a threat and bribe had been offered and that the conversation with Pastor Murdoch occurred in terms to the effect described by the respondent and the Pastor. Her Honour said:

“Such a statement by the [appellant] may have been irrational if no threat or bribe had been made by Mr Ainsworth senior and the [appellant] was committed to marrying the [respondent], but the [appellant’s] subsequent conduct demonstrates that he was capable of irrational behaviour.”

16 The trial Judge said that it was clear that the appellant’s parents did not favour the marriage at least at the time proposed and that the appellant’s father did not like the respondent. There was antagonism between the respondent and her future family-in-law.

17 The parties were married on 31 March 1995. After their honeymoon they resided at the appellant’s house at 68 Walter Street, Mortdale.

18 The respondent alleged that after the honeymoon the appellant began to behave in a controlling manner and at times exhibited bizarre conduct such as taking the car keys and telephone and leaving the respondent in a locked house without any means of communicating with anyone. She claimed that he attempted to control what she wore and limited the money to which she had access. The respondent alleged that the appellant touched her dog “in a sexual way” and had it desexed without her consent.

19 Her Honour said:

“31. It is neither necessary nor possible to investigate these allegations in detail. To the extent that controlling behaviour did occur, some of it may have been within the bounds of what is, in some circles, regarded as normal. In hindsight, the [respondent] may have drawn unjustified inferences about the [appellant’s] conduct. However, it is clear that by early June the [respondent] was sufficiently concerned about what she considered to be cruel and controlling behaviour to discuss the matter with Dr Soe, a general practitioner, and to make a complaint to her sister, Melinda. I am satisfied that those complaints were made because, by early June, the [appellant] had exhibited physical aggression towards the [respondent] and had, by other behaviour, caused her to feel oppressed.”

Assaults
Mid-April – 4 July 1995

20 Judge Murrell said that the first assault of the respondent occurred when the appellant arrived home drunk. There was an argument and the appellant hit the respondent in the chest, delivering what the respondent referred to as a ‘sternum hit’. The fist was half closed and the force of the hit was delivered through the palm. The appellant hit the respondent a couple of times in that way. It was the respondent’s evidence that the assault occurred in mid-April 1995.

21 The appellant denied the assault. His evidence was that the only incident of domestic violence that he recalled occurred at the end of May 1995 after a minor argument or ‘discussion’ between the respondent and him. Subsequently while he was watching television the respondent approached him and, apparently unprovoked, began to slap him around his face. His only response was to raise his hands to protect himself. The respondent was very agitated, aggressive and incoherent. The appellant then heard her speaking to her sister Melinda on the telephone. He heard her say: “Hi, Melinda, its Michelle. Anthony’s bashed me Anthony’s bashed me.” In cross-examination at first he said that he had not discussed this false allegation of assault with the respondent. He then stated that he did say something to her.

22 Judge Murrell rejected the appellant’s version of events and accepted the respondent’s. However there was a marked discrepancy in dates. Her Honour said:

“36. There is no doubt that on 4 June 1995 the [respondent] did telephone her sister Melinda (who is a lieutenant in the Navy) and complained that she had been assaulted. Melinda notified their father, who asked Melinda to obtain more details from the [respondent]. Subsequently, Melinda reported to their father that there had been a ‘lover’s spat’ and that ‘everything was okay’.”

23 On 29 May and 1 June 1995 the respondent consulted Dr Margaret Soe, a general practitioner, in relation to itchiness and a rash on her body. She asked for an appetite suppressant. According to Dr Soe, the respondent did mention the appellant’s cruelty and controlling behaviour but made no mention of an assault. The respondent was adamant that she had told Dr Soe about a physical assault. She stated that Dr Soe advised her to leave the appellant. Her Honour considered that Dr Soe’s recollection of the meeting was probably correct and said:

“38. … As at late May/early June when she saw Dr Soe, the [respondent] had not previously disclosed her concerns to anyone. The [respondent’s] recollection of her discussion with Dr Soe is probably mistaken. She assumed that she told Dr Soe about the first assault.
39. Having regard to the timing and substance of the complaints to Dr Soe and Melinda Ainsworth, in my view the first physical assault probably occurred later than mid-April 1995, and may have occurred at the end of May 1995 or on 4 June 1995.”
12 June 1995

24 On 12 June 1995, which was the Monday of the June long weekend, the respondent accompanied the appellant on a drive to Wollongong. Her dog was in the back of the appellant’s company van. On the return trip the van broke down at Helensburgh. The appellant became aggressive and began to yell at the respondent. He punched her twice in the top front of her right arm connecting through to her chest. The respondent went to the back of the van where the appellant followed her. He began to punch her dog. He held the respondent tightly by her wrists as she tried to rescue the dog. He pulled and pushed her by her wrists squeezing hard.

25 That evening as the respondent was undressing to take a shower she noticed that her right arm was extremely swollen and was a blue/black colour. She asked the appellant to take her to hospital but he procrastinated. Eventually after she threatened to call an ambulance, he took her to the St George Hospital. Before they arrived at the hospital the appellant threatened to divorce the respondent, bash her or even kill her if she told anyone about the assault. Consequently, the respondent told staff at the St George Hospital that she did not know how the injury had occurred. The respondent was admitted to the hospital at about 7 pm on 12 June 1995. The hospital notes refer to a sudden onset of swelling. A venogram disclosed a thrombosis of the axillary sub-clavian vein. A stent was inserted. The respondent was treated with Heparin and was discharged on Warfarin, an anti-coagulant.

26 The appellant denied any assault on 12 June. He said that he first became aware of this allegation in late 1995 or early 1996 through court documents. He said that in early June the respondent had complained of a sore arm and had asked him to examine it. At first, he said that on examination the arm looked “alright”. Later he said that it looked abnormal. The trial Judge pointed out that in an earlier Family Court affidavit he had said that the complaint occurred in early June. In his evidence in chief he referred to early June. However, in cross-examination he stated that the incident occurred on Saturday, 10 June in the presence of his mother and “Aunty Ame”, who is now deceased. The appellant denied resisting the respondent’s request to be taken to hospital on the evening of 12 June and denied making threats to her regarding disclosure of the assault.

27 The appellant’s mother gave evidence that both one week before the long weekend and on 10 June 1995, on each occasion in the presence of the appellant, the respondent complained to her of a swollen arm and showed her a swollen arm. This evidence differed from the contents of two Family Court affidavits, in which the appellant’s mother had stated that the second occasion on which a complaint was made was about 6 pm on Monday, 12 June, that is about three hours before the appellant telephoned her and asked her to attend the St George Hospital. The trial Judge considered that the appellant and his mother fabricated their evidence of arm complaints by the respondent.

28 The appellant said that he telephoned his mother from the hospital and she arrived there at 7.30 pm on 12 June. He asserted that he then telephoned the respondent’s parents. The trial Judge accepted the evidence of the respondent’s parents that the appellant failed to contact them and advise them of the respondent’s hospitalisation until 14 June. The respondent confirmed that her parents did not visit her until several days after her admission. Judge Murrell regarded the appellant’s conduct as consistent with a feeling of guilt in relation to the respondent’s arm condition.

29 Judge Murrell said:

“48. Various members of the [appellant’s] family were in almost continual attendance at the hospital, leaving the [respondent] with little opportunity to speak privately with her parents. There were no members of the [appellant’s] family present in the early morning when the [respondent’s] father visited her on his way to work. However, the [respondent] did not take advantage of this opportunity to discuss the assault with her father.”

30 On 18 June the respondent was discharged from hospital but required to attend the hospital clinic every second day. On 19 and 23 June 1995 she saw Dr Lines, a general practitioner, but she did not mention any assault to him. Her evidence was that she did not mention the assault because she was embarrassed to do so, particularly as she and the appellant had been recently married. Judge Murrell said:

“51. I accept the [respondent’s] evidence of the assault of 12 June and the circumstances leading to her admission to the St George Hospital. I accept the [respondent’s] evidence that she was frightened to disclose the assault at the hospital and through June she was too embarrassed to disclose the assault. The [respondent] is obviously a religious person who was firmly committed to her marriage. In addition to finding disclosure very embarrassing, she may well have considered that disclosure would undermine her prospects of preserving the marriage.”

3 July 1995

31 On 3 July 1995 the appellant arrived home at about 6 pm and told the respondent to pack her bags and get out. She made telephone calls to his mother and brother, Greg. As she was attempting to make another telephone call the appellant snatched her telephone notebook. He punched her three or four times in the right upper/shoulder area very hard with a closed fist. He pushed her over. Her arm was aching. A bruise appeared and the arm swelled. The appellant then left. The respondent telephoned her parents. She told her father that the appellant had or was hitting her.

32 The respondent’s father, Mr Pitt, drove to the home and spoke to her. He then left the home in an endeavour to locate the appellant and speak to him. He found him at the home of his brother, Greg. Mr Pitt and the appellant spoke for a short time in a back room. Mr Pitt asked the appellant why he was hitting the respondent. The appellant would not answer. The appellant’s brother Greg then called the appellant away and the appellant was absent for up to half an hour. Mr Pitt went looking for the appellant and located him elsewhere in the house with other family members, laughing and talking on the telephone.

33 While the appellant agreed there had been a five or ten minute conversation in the back room at his brother’s home he denied the conversation alleged by Mr Pitt. He said he told Mr Pitt that he had “had enough” of the respondent and “had to get out because of her threats to (his) family”. He agreed that he had been called out to the telephone but denied that he had been laughing on the telephone.

34 No member of the appellant’s family gave evidence of a threat which the appellant alleged the respondent had made. Greg Ainsworth adamantly denied that the appellant had been called out of the room in which he was speaking to Mr Pitt and asserted that Mr Pitt was not left alone in the room. The trial Judge accepted the evidence of the respondent and Mr Pitt as to the events of 3 July 1995.

35 On 4 July 1995 the respondent spoke by telephone to various members of the appellant’s family. She also said that she spoke to Pastor Murdoch but her Honour considered that she was probably mistaken about that. In the afternoon the respondent’s mother drove her to a meeting which had been organised with Dr Lines. She disclosed to Dr Lines that she had been assaulted by the appellant. Dr Lines’ patient card notes the respondent’s allegation that the appellant had punched her on 3 July in the right arm and notes his observation of bruising on the right upper arm. Dr Lines asked the respondent’s mother to come into his room and the respondent disclosed the assault in the presence of her mother.

36 While the respondent and her mother were attending the doctor, her father waited at the Mortdale house. The appellant arrived at the house before the respondent returned from the doctor. Mr Pitt asked the appellant what had been going on and why he had been hitting the respondent, but the appellant “wouldn’t reply”. The respondent and her mother arrived back at the house. They observed the appellant’s brother Greg and the appellant’s father near some bushes in the garden. They were present for the purpose of removing the appellant’s father’s car which was stored in the Mortdale garage. The respondent assumed that they were present for an ulterior purpose but that was not established.

37 Inside the house words were exchanged between the respondent and the appellant in the course of which the appellant said something to the effect that he had completed plan A and was onto plan B. He also referred to a plan C. The appellant then approached the respondent and pushed or attempted to push her. However, the respondent’s mother stepped between them and the appellant desisted in his attempts to push the respondent. The police were called and arrived soon after this attempted pushing incident. The respondent showed them her right arm and chest and the respondent’s mother told the police that she had just found out that the appellant had been assaulting the respondent. This allegation was made in the appellant’s presence. The appellant did not deny the allegation. The police asked everyone to leave except the respondent and the appellant. Otherwise, they took no action.

38 The appellant’s evidence was that after he arrived home on 4 July, the respondent’s father did not ask him why he had been hitting the respondent. He stated that there was no mention of domestic violence or assault. He denied that he heard the respondent’s mother speaking to the police about an assault. He asserted that the respondent started to do pretend karate fist punches and sternum punches very close to his face in a threatening manner. There were about twenty pretend fist punches and about half a dozen pretend sternum punches. This allegation had not been put to the respondent in cross-examination, nor was it put in cross-examination to her mother, whom the appellant alleged was present at the time. The appellant denied pushing or attempting to push the respondent. The trial Judge accepted the evidence of the respondent and her parents as to the events of 4 July 1995.

5 July 1995

39 The 5 July was the appellant’s birthday. The respondent gave the appellant a present and a card. The appellant said that he would be divorcing the respondent and left the home. He returned at about 10 am and started to hit the respondent in the back of her head, on her right arm, in the shoulder and chest areas, in her stomach and on her legs. He pushed her over. The respondent tried to contact her mother by telephone without success. She then telephoned Pastor Murdoch. Pastor Murdoch said that the telephone conversation occurred one evening. Her Honour said that he must have been mistaken about that. The respondent and the appellant agreed that the conversation occurred in the morning.

40 While speaking on the telephone to the respondent, Pastor Murdoch heard the appellant shouting in the background and heard thumps. There were two or three episodes of thumping and on each occasion there were two thumps in close succession, followed by a scream from the respondent to the effect of “stop hitting me”. Pastor Murdoch told the respondent to tell the appellant that she was speaking on the telephone to her solicitor. He asked the respondent to put the appellant on the line. The appellant came to the telephone and had a discussion with Pastor Murdoch, initially believing that Pastor Murdoch was a solicitor. According to Pastor Murdoch, he said to the appellant: “Assaulting Michelle is no way to resolve your marriage problems” to which the appellant replied: “Maybe not, but she gives me the shits”.

41 Eventually the appellant recognised Pastor Murdoch’s voice and Pastor Murdoch admitted that he was not a solicitor. He said to the appellant:

“I want you to know that if your assault harms Michelle or if your family harms her, I will remember this phone call.”

The appellant acknowledged that comment.

42 Later (Pastor Murdoch thought it was the next day, but her Honour regarded this as mistaken) Pastor Murdoch telephoned the police station. Subsequently, he rang police headquarters to complain of an apparent lack of police action. In fact, there were two police attendances at the Mortdale home on 5 July. The first attendance occurred soon after the conversation between the respondent and Pastor Murdoch. Her Honour considered that this first attendance was probably the result of Pastor Murdoch’s telephoning the police. No action was taken.

43 After those police left, the appellant began to hit the respondent and she again telephoned Pastor Murdoch. A different group of police arrived at the scene, collected the respondent and took her to a police station. Her Honour considered that the second police attendance probably resulted from Pastor Murdoch making a second telephone call for the purpose of complaining about police inaction. As a result of the second police attendance, an interim apprehended violence order was obtained.

44 The appellant said that on 5 July 1995 it was the respondent who behaved in an aggressive manner. He alleged that, when he told her that he would be leaving her, she made a telephone call to his brother Richard and swore at Richard. She ripped the telephone out of his hand as he was attempting to telephone his brother Richard. The appellant alleged that the respondent began to run from side to side of the house screaming out to the neighbours that she was being bashed. The respondent then made a telephone call to a person whom the appellant subsequently discovered was Pastor Murdoch. The appellant agreed that he spoke to Pastor Murdoch on the telephone but denied that he, in effect, admitted that he had assaulted the respondent. The appellant asserted that Pastor Murdoch had conspired with the respondent to give false evidence in relation to assaults occurring in the course of the telephone conversation, although the respondent had not given evidence of assaults occurring in the course of the telephone conversation.

Medical Sequelae

45 The trial Judge then turned to deal with the medical sequelae. From the large number of reports tendered in evidence it is possible to set out references to what appear to be the important statements of history and symptoms.

46 According to a letter of 15 October 1996 written by Dr Soe to a solicitor, Mr Michael Foley, Dr Soe saw the respondent on 29 May 1995 and 1 June 1995. The respondent complained of itchiness and rash all over the body and face. “She mentioned about her husband’s cruelty and controlling the finance eg like buying clothes and cigarettes and locking her in the room etc she never mentioned about assault”. Dr Soe did not see any bruises or injury and did not see the respondent again until she received the solicitor’s letter. On 2 October 1996 Dr Soe examined the respondent and

“discovered her right side of the arm was swollen from shoulder to the right arm with a lot of varicose veins on the front of the right side of her chest all these are the residue results of her husband’s assault which was still painful and tender.”

47 A St George Hospital Emergency Department Clinical examination record showed that the respondent on 12 June 1995 at about 7 pm presented “after a sudden onset of swelling to right arm”. There is a reference to Dr Englund with the words axillary vein thrombosis. In a letter of 27 June 1995, Dr Englund wrote to Dr Lines:

“Mrs Ainsworth [the respondent] was admitted to St George Hospital on 12 June 1995 as an emergency with swelling of her right arm. A venogram showed an occlusion of the axillo sub-clavian vein at the point where this vein crosses the first rib. The vein was clearly being compressed by combination of the scalenus anterior muscle at its insertion into the first rib. This syndrome otherwise known as Padgett Schroeder syndrome or effort thrombosis of the axillary subclavian vein is fairly well recognised and usually occurs in young athletic people or people who are doing a lot of physical activity. [The respondent] has a history of competitive swimming and this may be some contributing factor to this.”

Dr Lines wrote on 23 June 1995 to Dr Englund about further treatment and consultation.

48 On 6 July 1995 an application was made by a police officer for an apprehended violence order on the basis that members of the appellant’s family had been telephoning her, abusing and threatening her and that on 3 July the appellant arrived home and told her to get out. The respondent then made two phone calls and, when she attempted to make a third, the appellant punched her three or four times with a clenched fist in the right arm. The appellant then left the house.

49 On 8 August 1995, shortly before mid-day, the respondent again presented at the emergency department of St George Hospital. The clinical examination records said: “Recently in here for ? clots to veins in right arm, stents inserted.” The nursing assessment was pain in right arm, bruised and swollen arm, feels dizzy. Dr Lines was shown as the local medical officer. On 10 August Dr Ross Fulton wrote to the vascular surgeon at Concord Hospital thanking him for admitting the respondent that night. Dr Fulton observed: “She has an increasing swelling in the right shoulder upper arm.” The letter continued:

“Past history of this problem – domestic violence June 1995 – admitted to St George Hospital with gross swelling right upper arm. She was on Heparin for several days ….”

50 The Concord Hospital discharge letter showed the respondent as admitted on 10 August and discharged on 24 August 1995. By that time she was under the care of Dr Gray-Weale, vascular surgeon, who wrote on 20 August 1996 to Professor James May that he first came across her in “June 1995 when she was admitted to Concord Hospital” (sic) with clinical evidence of a right axillary vein thrombosis. There followed letters from Dr Gray-Weale to various doctors beginning on 19 September 1995 and continuing until 25 January 2000. On 14 November 1996 Dr Gray-Weale wrote to the solicitor, Mr Foley:

“I am unaware of any association between emotional trauma and development of clots. However there certainly appears to be a causal relationship between physical trauma and the development of venous thrombosis.
I take it your fourth question relates to trauma to a region already affected by a venous thrombosis. It would seem to me that it would be very difficult to prove that such an injury may not have had a deleterious effect on an already existing venous thrombosis.”

51 On 19 February 1997 Dr Raymond McKinley, a consultant physician and haematologist, wrote:

“I understand that no congenital or acquired thrombophilic state has been delineated and there appears to be a strong case that the thrombosis was of traumatic origin.”

52 On 21 April 1999 Dr Gray-Weale, writing to the respondent’s then solicitors, said in reply to their letter of 7 April 1999:

“The fracture in [the respondent’s] stent which is located in her right subclavian vein may have been caused by an injury to her shoulder region. However, stents in this position do have a tendency to fracture over time without an obvious injury. It is thus not really possible to be confident as to whether a blow to the region was the definite cause of the fracture of the stent though in my opinion it could well have been a contributing factor.”

53 On 23 April 1999 a psychiatrist, Dr Lisa Brown, set out instances of behaviour which the respondent alleged the appellant had engaged in. One of these was described as:

“episodes of physical violence occurring within weeks of the marriage on several times weekly basis including kicking her in the legs, punching in the stomach or chest and kicking her in the arms or back. These episodes would often occur after [the appellant] returned from visits to his family and when he was intoxicated with alcohol.”

54 The doctor observed that the most severe assault occurred on 12 June 1995 when the respondent described the appellant as becoming enraged when their car broke down and he began to punch her. Dr Brown said from the interview there was no evidence to suggest that the respondent was exaggerating or falsifying her symptoms and commented that her current mental state might lead to difficulties if she was to present her case in court because of her high level of anxiety and agitation. Dr Brown produced an update report on 1 March 2000.

55 In a report of 14 November 1996, Professor May observed that the diagnosis of the respondent was deep vein thrombosis in the right axillary and sub-clavian veins and stated that this could be caused by physical assault in the vicinity of where the blood clot actually formed. Asked what is the likely effect of a direct assault in the vicinity of the clot after it is formed, the Professor said: “This may result in extension of the clot embolisation where a portion of the clot breaks free and travels in the direction of the lungs.” Later he said:

“It is a well recognised syndrome that subclavian vein thrombosis can occur in persons of a previously high standard of fitness. This results from intermittent compression on the subclavian vein due to an abnormal thoracic outlet. [The respondent] has evidence of such a [sic] abnormality on physical examination and in my opinion had a predisposition for the development of subclavian vein thrombosis before its actual development in June 1995.”

56 The appellant’s evidence included a report of 19 June 1998 by an oral surgeon, Anthony J Hill, which noted that the respondent said that she had been getting headaches since she was repeatedly struck around the head and face in 1995 and again went through a very traumatic episode of personal violence just before last Christmas [a reference to a sexual assault by another party]. Dr Dyball prepared a report of 15 September 1999 referring to the history. On 19 February 1999 Dr Endrey-Walder said:

“It would be difficult for me to adjudicate as to the truth or otherwise of this lady’s ‘physical and verbal’ suffering on account of abuse by her husband.
It is equally difficult for me to see how the alleged physical assault, certainly the one described to me as per 12.6.1995, could conceivably have caused this lady to develop a right axillary/subclavian thrombosis.
She has repeatedly indicated to me that the alleged assault was with a closed fist to the lateral aspect to her right arm, and I would not be able to associate an injury, even with a closed fist, to that part of the body that would cause a thrombosis in the axillary or subclavian vein.
…..
I believe that [the respondent’s] problems relate to a thoracic inlet syndrome and it remains very difficult to argue that anything short of a direct blow over the vein, well protected behind the clavicle, could conceivably have caused the clotting.”
Proceedings in the Family Court

57 The respondent took proceedings in the Family Court. On 19 August 1996 she swore an affidavit in which she gave particulars of the appellant’s misconduct starting in about mid-April 1995. This referred, in general terms, to assaults from that time and in particular to assaults on 9, 10 and 11 June 1995 and then the incident on 12 June 1995. It went on to describe what she said happened on 3, 4 and 5 July 1995.

58 The appellant filed an affidavit on 9 August 2000 in which he said that he had not hit the respondent or assaulted her in any way. He referred to the argument in May 1995 asserting that his wife had been drinking since early in the morning and to the conversation that the respondent had with her sister using words to the effect “Anthony has bashed me”. He gave his account of the visit to St George Hospital. The appellant’s mother, Judith Ainsworth, made an affidavit on 13 November 1996 referring to an occasion about a week before the June long weekend in 1995 when the respondent showed her her right arm which was slightly swollen and said that she must have strained the muscles from rearranging furniture. She referred to the appellant and respondent coming to her home on the Monday of the long weekend and the decision to go to St George Hospital.

59 The appellant tendered the respondent’s police statement of 5 July 1995 which referred to assaults on 3 July and threats made by the appellant’s brother on 4 July. An affidavit by the respondent made on 23 August 2000 again set out the particulars of misconduct. In an affidavit of 23 September 1997 the respondent referred to the incidents of 12 June 1995 saying that by the afternoon of that day her right arm, right side of her chest and shoulder blade had swollen to an enormous size. It was dark purple and black in colour.

Grounds of Appeal

60 The fifty-seven grounds of appeal were set out under the following headings:

· Causation (1-20);

· Findings of Physical Assault (21-36);

· Damages (37-44); and

· Findings of Credit (45-57).

Of these grounds, 31 and 38-44 were not pressed. By leave of the Court the appellant filed and relied upon four further grounds. In totality the grounds in the notice of appeal give the impression of a comprehensive attack on almost every finding the trial Judge made based either on her Honour’s failure:

(a) properly to take account of s140(2) of the Evidence Act and the state of reasonable satisfaction dictated by Briginshaw v Briginshaw and required for the proof of allegations such as those made against the appellant; or

(b) to give reasons or sufficient reasons or sufficient attention to the weight of the evidence.

In grounds 47, 48 and 49 it was asserted that it was not open to the trial Judge to conclude that:

(a) the respondent was honest and reliable in relation to critical matters about which she gave evidence;

(b) that she was so volatile that it would have been very difficult for her to lie in relation to the many matters about which she gave evidence; or

(c) that the appellant was an unimpressive witness simply on a finding that he moved anxiously in his chair on many occasions, seeming to be on the verge of giggling, in the context of belittling the respondent and was particularly anxious during cross-examination.

On occasion the ground was no more than that her Honour had erred in making a finding; see for example grounds 3, 4, 5, 6, 51 and 57.

61 Having read the written submissions and listened to the submissions put orally I am satisfied, for reasons I will come to, that the evidence was sufficient for her Honour to conclude that the assaults had occurred on the four occasions she described and in the manner she described. The substance of the appeal is in the area of causation and whether it was open to the trial Judge to conclude that the deep vein thrombosis in the right axillary and sub-clavian veins was caused or exacerbated by all or any of the assaults.

62 The nature of the appeal and particularly the grounds of appeal require reference again to the principle for which Abalos v Australian Postal Commission (1990) 171 CLR 167 stands. In Rosenberg v Percival (2001) 75 ALJR 734 McHugh J, with whom on this point Gummow J agreed (see para 92), said at para 37 and following:

“[37] As Brennan and Gaudron JJ and I said in Devries v Australian National Railways Commission , ‘the trial judge had the advantage, which was denied to the judges of the Full Court, of being able to judge the true character and intelligence of the plaintiff’ ((1993) 177 CLR 472 at 477). In addition, as I have pointed out above, there were many objective matters that supported the trial judge’s findings that the patient would have had the operation even if the risk had been drawn to her attention. None of the matters referred to by Kennedy J pointed so overwhelmingly to the patient not proceeding with the surgery that they negatived the advantage that Gunning DCJ had in seeing and hearing the patient. Even if the matter is looked at on a purely objective basis, the matters against the patient’s claim were as weighty as the matters in her favour, perhaps more so. Once it is accepted that the matters in her favour could not overwhelm either the matters against her or the judge’s assessment of her character, fortitude and intelligence, the Full Court’s opportunity to review the judge’s finding on the causation issue was very limited.
[38] Wherever the boundary of review lay, in the circumstances of this case, the Full Court could not set aside the trial judge’s findings on the bare ground that he did not give sufficient weight to matters that the judges of the Full Court thought assisted the patient’s case. In Devries , Brennan and Gaudron JJ and I also said (at 479):
‘More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’. [citations omitted]
[39] To similar effect are remarks of Deane and Dawson JJ in Devries. Their Honours said at 482-3 that, ‘consistently with the obligation to make full allowance for the advantage which the trial judge had enjoyed, the Full Court could properly overturn the trial judge’s finding only if it was vitiated by some error of principle or mistake or misapprehension of fact or if the effect of the overall evidence was such that it was not reasonably open’ to make the finding that he did.
[40] In this case, the trial judge’s finding was based on the credibility of the witness and on facts that were not ‘inconsistent with facts incontrovertibly established by the evidence’ or ‘glaringly improbable’. That being so, it is impossible to conclude that he failed to use or has palpably misused ‘his advantage’ because he did not give to countervailing matters the weight that the Full Court thought they deserved.
[41] One of the consequences of the ‘advantage’ of seeing and hearing the witnesses is that the trial judge is in a far better position than an appellate court to know what individual weight should be assigned to the various factors – credibility, matters for and matters against – that must be evaluated in making the ultimate findings of fact in the case. Where a finding is based on credibility and other facts support the finding, the case would need to be exceptional before an appellate court could set aside the finding on the ground that, judging by the transcript, the trial judge gave insufficient weight or consideration to other facts and circumstances in the case. The common law tradition is an oral tradition. Trial by transcript can seldom be an adequate representation of an oral trial before a judge or an oral trial before a judge and jury.
[42] No suggestion could reasonably be made that Gunning DCJ acted on an erroneous principle or mistook or misapprehended the facts of the case. Nor was the overall effect of the evidence such that it was not reasonably open to find that the patient would have proceeded with the surgery, if she had been warned of the possibility of a temporomandibular joint disorder.”

63 The trial Judge was aware of the seriousness of the respondent’s allegation that the appellant had assaulted her on the several occasions referred to. Her Honour referred to Briginshaw v Briginshaw in which at 362-3, Dixon J, after referring to statements that an issue such as fraud must be proved “clearly”, “unequivocally”, “strictly”, or “with certainty”, said:

“This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues (citations omitted). But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected.”

64 The trial Judge accepted the respondent’s evidence about the first assault particularised. Her Honour’s finding coincided with the respondent’s sworn evidence. The respondent said that the assault occurred in mid-April 1995. The trial Judge said it probably occurred later than that and may have occurred at the end of May or on 4 June 1995. On 4 June as the appellant conceded the respondent telephoned her sister and complained that she had been assaulted. The respondent consulted Dr Soe in relation to itchiness and a rash on her body on 29 May and 1 June 1995. She said she told Dr Soe about a physical assault. Dr Soe’s account was that she did mention the appellant’s cruelty and controlling behaviour but made no mention of an assault. The trial Judge preferred Dr Soe’s account.

65 Her Honour was comfortably satisfied that the respondent and her witnesses were honest and reliable in relation to the critical matters about which they gave evidence and that the appellant and his mother were dishonest. Her Honour recognised that as she presented herself the respondent was a volatile, emotional and somewhat histrionic witness who was at times verbally aggressive and interrupted questions which were put to her. I do not accept that assuming, as is asserted, that the respondent as a witness had a propensity to blame others or was less than reliable in allegations she made against the appellant and other people concerning matters independent of her cause of action, it was not open to the trial Judge to come to the conclusion that she was honest and reliable in relation to critical matters about which she gave evidence or that it was not open to the trial Judge to conclude on the evidence that it would have been very difficult for the respondent to lie in relation to many matters about which she gave evidence or that it was not open to her to come to the conclusion that the appellant was an unimpressive witness because of various matters referred to as occurring during his cross-examination. It was quite open to her Honour to take account of the fact that the appellant gave evidence about matters which were not put in cross-examination to the respondent. As the respondent submitted, what weight her Honour put on the various matters described in the grounds of appeal under the heading “Findings of Credit” was entirely for her.

66 What I have said about the first assault applies to the other three assaults particularised, except that the trial Judge was satisfied they occurred on the dates alleged. The findings were based on the respondent’s oral evidence which was accepted. On the evening of 12 June 1995, the day of the second assault particularised, the respondent was admitted to the St George Hospital. A venogram disclosed a thrombosis of the axillary sub-clavian vein. Her Honour noted that the evidence given by the appellant’s mother differed from the contents of two Family Court affidavits. She considered that the appellant and his mother fabricated their evidence of arm complaints by the respondent. This finding suggests, though her Honour did not rely on it, that the appellant had something to hide about what happened. The trial Judge accepted the respondent’s evidence that she was frightened to disclose the assault at the hospital because of threats made to her by the appellant and through June was too embarrassed to disclose the assault. Her Honour observed that she may well have considered that disclosure would undermine her prospects of preserving the marriage.

67 The evidence of the respondent about the assault on 3 July 1995 is consistent with that given by her father, Mr Pitt, which her Honour accepted. The trial Judge said:

“The plaintiff’s parents were both reliable witnesses. I was particularly impressed by the evidence of the plaintiff’s father, who was calm, fair and, if anything, understated in his evidence.”

68 On 4 July 1995 the respondent told Dr Lines that she had been assaulted by the appellant (this appears in his patient card note of 4 July 1995, Blue AB 155). When the police were called to the matrimonial home at Mortdale the respondent’s mother told them that she had just found out that the appellant had been assaulting the respondent. This allegation was made in the appellant’s presence and he did not deny it. The appellant’s evidence was that when he arrived home there was no mention of domestic violence or assault and he had not heard the respondent’s mother speaking to the police about an assault. His allegation that the respondent in the presence of her mother started to do pretend karate fist punches and sternum punches very close to his face in a threatening manner was put neither to the respondent nor to her mother in cross-examination.

69 The fourth assault particularised occurred on 5 July 1995 at a time shortly before or during which the respondent spoke to Pastor Murdoch by telephone. Apart from the time of the conversation the trial Judge accepted the evidence of Pastor Murdoch. As a result of a second conversation with the respondent Pastor Murdoch spoke to the police. This seems to have resulted in a further police attendance.

70 I am satisfied that on the evidence and bearing in mind the seriousness of the allegations the trial Judge was entitled to find that the assaults occurred as the respondent described them. Ample reasons were given for her conclusions which in substance flowed from her hearing the respondent give evidence and believing what she said despite an acknowledgment that in some respects the respondent’s presentation and manner were unsatisfactory. The trial Judge was alive to all these matters but they did not individually or together make her Honour’s findings glaringly improbable or in any sense inconsistent with facts incontrovertibly established by the evidence. To my mind it was understandable that newly married the respondent did not immediately complain to doctors or to her parents. From 3 July she did complain. I would reject the grounds of appeal relied upon to support the submission that all or any of the findings of physical assault should be overturned.

71 In a case such as the present, where much depends upon the history that a plaintiff gave to treating and other doctors, upon her appearance when she visited them and upon which of differing opinions should be accepted, the trial Judge faces an extremely difficult task in doing justice to the parties on evidence which consists entirely of medical reports without any oral medical evidence. In Ziade v NSW Ministerial Insurance Corporation (Court of Appeal, 26 March 1993, unreported), Handley JA observed that the plaintiff’s case had been conducted with an economy of effort not appropriate in a case where serious injuries were alleged and substantial damages claimed. In that case the plaintiff was the only witness called to give oral evidence and on the medical issues the plaintiff’s legal advisers contented themselves with tendering a bundle of medical reports. The defendant responded by tendering a further bundle of medical reports. The trial Judge had great reservations about the plaintiff’s credit. His Honour accepted the opinion of one of the doctors in one of his reports. Handley JA remarked that it was impossible for the Court on the materials available to it and given his Honour’s findings as to the credibility of the plaintiff to disturb his conclusions on the medical evidence. Kirby P, as his Honour then was, said:

“…(as we see in virtually every running list of this kind) cases are increasingly being determined in the way this case had to be determined, namely, by the evaluation of the oral evidence of the plaintiff alone and the attempt by the trial Judge to decide where the truth and justice lay as between the series of conflicting medical reports seen from the perspective of the impression which the plaintiff makes. On the face of things this is an odd way to resolve the differences of conflicting expert opinions.”

72 Judge Murrell found that on the occasion of the first assault particularised the appellant hit the respondent in the chest delivering what the respondent referred to as a “sternum hit”. He hit her a couple of times that way. On 12 June 1995 he punched her twice in the top front of her right arm connecting through to her chest. By that night a test disclosed a thrombosis of the axillary sub-clavian vein. On 3 July 1995 the appellant punched the respondent three or four times in the right upper arm/shoulder area very hard with a closed fist. On 4 July 1995 he pushed or attempted to push her. On 5 July 1995 he started to hit her in the back of her head, on her right arm, in the shoulder and chest areas, in her stomach and on her legs. The trial Judge found, and on the evidence this seems to be beyond doubt, that the respondent had a predisposition to the development of Padgett Schroeder Syndrome or effort thrombosis of the axillary sub-clavian vein. This conclusion was supported by Professor May’s report of 14 November 1996. Professor May went on to say that the diagnosis of the respondent as having a deep vein thrombosis in the right axillary sub-clavian vein could be caused by physical assault in the vicinity of where the blood clot actually formed. The likely effect of a direct assault in the vicinity of the clot would be an extension of the clot embolisation where a portion of the clot breaks free and travels in the direction of the lungs. The respondent had evidence of such an abnormality on physical examination.

73 Dr Endrey-Walder in his report of 19 February 1999 was of opinion that it was difficult to argue that anything short of a direct blow over the vein, well protected behind the clavicle, could conceivably have caused the clotting. He took the view on a history different from the evidence that the respondent gave namely, the respondent’s indication to him that the alleged assault was with a closed fist to the lateral aspect of her right arm, that an injury even with a closed fist to that part of the body would not cause a thrombosis in the axillary sub-clavian vein.

74 Neither party saw fit to require any of the medical experts to attend for cross-examination. They were content to leave it to her Honour to decide the case on the written reports. Her Honour accepted the opinion of Professor May which was consistent with that of Dr Endrey-Walder if the blow was a direct blow over the vein. On the evidence her Honour was satisfied that in the assault of 12 June 1995 the appellant did land a direct blow over the vein. This accorded with the respondent’s evidence both as to the nature of the blow and as to what was diagnosed when she arrived later that evening at St George Hospital. The trial Judge said:

”In his report of 27 June 1995 Dr Englund referred to finding no evidence of significant clotting, as catheters could be passed through the vein and the vein was able to be dilated to ten millimetres. At that time, Dr Englund was optimistic that the plaintiff’s condition would heal over a period of about three months. Given the reference to ‘significant clotting’ and Dr Englund’s optimism about the plaintiff’s recovery, I conclude that the nature and extent of the clotting observed on 12 June must have been less serious than that which was observed subsequently.”

75 Her Honour said, and again this was consistent with the evidence, a direct assault in the vicinity of the clot might result in the extension of the clot of embolisation where a portion of the clot breaks free and travels in the direction of the lungs. She found that was what occurred when the appellant assaulted the respondent on 3 July 1995. She accepted the respondent’s evidence that from 3 July her condition worsened until she was admitted to Concord Hospital in early August 1995. Her Honour correctly observed that where a plaintiff has made out a prima facie case that incapacity has resulted from the defendant’s negligence, the evidentiary onus of establishing that the total or partial incapacity would, in any event, have resulted from a pre-existing condition, rested upon the defendant. She said:

“If it is asserted that at some future date the plaintiff would, in any event, have reached the same level of disability, it is for the defendant to prove that satisfactorily and to show when that would have occurred: Watts v Rake (1960) 108 CLR 158, Purkess v Crittenden (1965) 114 CLR 164.”

The appellant had not tendered evidence of that nature.

76 I do not think it matters in the present case but I would accept the respondent’s submission that once her Honour was satisfied, taking account of the seriousness of the charges, that the assaults had been committed by the appellant the issues of causation did not require to be determined in any different way from causation in any other case where a plaintiff claims damages for the results of personal injuries suffered. I do not think there was anything glaringly improbable about the conclusion to which her Honour came. Nor was it inconsistent with any other fact incontrovertibly proved. Her Honour sufficiently explained the reasons for the conclusion she came to. The grounds of appeal relied upon under the heading “Causation” I would reject.

Damages

77 The only ground of appeal under this head was that in assessing the respondent’s psychological disabilities, the trial Judge erred in failing to give weight or in giving inadequate weight to the fact that the respondent had been involved in a gun related sexual assault in December 1997. The trial Judge said:

“100 There is no doubt that the plaintiff suffered from significant psychological problems before the sexual assault on 17 December 1997 and has suffered from significant psychological problems since that date.
101 After June 1995 the plaintiff experienced nightmares, night sweats and fear of assault. She received some counselling, including the counselling from Pastor Murdoch in April and May 1997. The plaintiff’s father said that since July 1995 the plaintiff has been agitated, unhappy, has tended to over dramatise matters and has lost momentum.
102 The plaintiff’s mental condition has been complicated by the December 1997 sexual assault. The plaintiff received counselling for several months after the assault. According to the plaintiff, she has managed to rid herself of most of the memory of the 1997 sexual assault, but can’t rid herself of memory of the defendant’s assaults because she is constantly reminded of them by her disabilities. The plaintiff considers that she now suffers from stress, poor concentration and a short temper.
103 In July 1998 Dr Spark, a general practitioner, referred to continuing depression, hypervigilance, anxiety and a lack of confidence. Dr Spark attributed those problems to the assaults, the plaintiff’s medical problems, her marital breakup and the sexual assault.
104 Dr Lisa Brown, a psychiatrist, considered that the plaintiff has suffered two depressive episodes, the first occurring during and after her marriage and the second occurring after the 1997 sexual assault. According to Dr Brown, the plaintiff should try a regime of antidepressant medication and should undertake cognitive behavioural therapy. She should consider psychiatric treatment.
105 In my view, the plaintiff dismissed the effects of the 1997 sexual assault too lightly.
106 I accept the opinion of Dr Brown (which substantially accords with the opinion of the defendant’s Dr Dyball) that, as a result of the defendant’s assaults, the plaintiff suffers from a chronic adjustment disorder with depressed, anxious and angry mood. The plaintiff’s psychological condition has been compounded by the 1997 sexual assault, and she now suffers from a more serious disorder which includes symptoms related purely to the 1997 assault, such as an obsessional desire for cleanliness. That view is entirely consistent with the evidence of the plaintiff’s mother. I accept Dr Brown’s opinion that treatment with antidepressant medication and the conclusion of this litigation will see a substantial improvement in the plaintiff’s condition. However, the plaintiff may never completely address the psychological sequelae of the assaults.”

78 The trial Judge was satisfied that the respondent’s enjoyment of life had been dramatically and in many respects permanently affected. She described her physical disabilities and their consequences. She had not worked since 9 June 1995 having had a very good work history after leaving school until that date over a period of twelve years. She concluded that her life had been derailed over the six years before the trial because of the appellant’s assaults and the sexual assault of December 1997. She concluded however that once litigation was resolved the respondent would be in a position to address her psychological problems and thereafter to seek and obtain part time work, perhaps as a receptionist. I agree with the respondent’s submissions that clearly her Honour took account of the sexual assault. However, she was made unable to work as a result of the appellant’s assaults upon her and there is nothing to suggest that the sexual assault affected what was already an incapacity to work. She so remained until the date of judgment. Her Honour’s finding that the respondent should be able to address the psychological problems and obtain part time work was reflected in her reduction of pre-judgment loss of earnings from $390 per week to $200 per week. I am not persuaded that her Honour ignored the consequences which she described of the sexual assault in assessing damages. I would dismiss this ground of appeal.

79 The additional grounds of appeal were as follows:

“1. The trial Judge erred in admitting the evidence from the Plaintiff of conversations between Melinda and her parents.
2. The trial Judge erred in admitting the evidence of Norman Pitt of a conversation with his daughter, Melinda, in which Melinda reported that the Respondent informed her that the Appellant was hitting the Respondent when:
(a) the evidence was second hand hearsay;
(b) no evidence was called to show that it was not reasonably practicable to call Melinda to give evidence, assuming that her evidence was admissible;
(c) no notice was given to the Appellant of an intention to call the evidence in accordance with s67 of the Evidence Act .
3. The trial Judge erred in giving any weight to the evidence of a purported complaint to Melinda.
4. The trial Judge erred in having regard to the apparent absence of a motive to lie to corroborate the Respondent’s evidence.”

80 The appellant conceded that the respondent made the complaint to her sister Melinda. That fact remained whether or not other evidence was given that Melinda had reported the matter to her father. Accordingly, I do not think the additional ground 2 is of any significance even if it be correct and I would reject grounds 1 and 3. As to ground 4 her Honour observed that before 5 July when the appellant indicated that he wished to separate from the respondent, the respondent was committed to repairing the marriage. As I have already indicated this commitment explains her failure to complain earlier than she did. I have difficulty in understanding the next sentence in the reasons for judgment: “Consequently, there was no motive for her to fabricate the complaints which she made prior to 5 July.” But I am not persuaded that what her Honour said was of any significance. Certainly it does not undermine the compelling force of the conclusions she reached in her reasons for judgment.

81 In my opinion, the appeal should be dismissed with costs.

82 SANTOW JA: I agree with Sheller JA.

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