Bird v Bool

[1997] QSC 198

IN THE SUPREME COURT

OF QUEENSLAND
  Writ No. 815 of 1995

[Bird v Bool & Anor]

BETWEEN:
  SHELLY MAREE BIRD
  Plaintiff

AND:
  IAN LAWRENCE BOOL
  First Defendant

AND:
  BEVERLEY GWENDA BOOL
  Second Defendant

CATCHWORDS:     DAMAGES - personal injury - sexual assault by stepfather - Post Traumatic Stress Disorder - future treatment - economic loss - general damages

AWARD - $69,750 (general damages $40,000)

DAMAGES - aggravated - need for deliberate and intended insult or humiliation to attract aggravated damages

COSTS - whether costs should be awarded on an indemnity basis

Counsel:Mr T. Matthews for the Plaintiff

Mr B.R. Goodingham for the First Defendant
Mr G.D. Robson for the Second Defendant

Solicitors:Attwood Marshall for the Plaintiff

Hawthorne Cuppaidge & Badgery for the First Defendant
Nicol Robinson Kidd as Town Agents for Roberts Mason & Co for the Second Defendant

Hearing date:               15 October 1997

IN THE SUPREME COURT

OF QUEENSLAND
  Writ No. 815 of 1995

[Bird v Bool & Anor]

BETWEEN:
  SHELLY MAREE BIRD
  Plaintiff
AND:
  IAN LAWRENCE BOOL
  First Defendant
AND:
  BEVERLEY GWENDA BOOL
  Second Defendant

JUDGMENT  -  DERRINGTON J

Judgment delivered 16 October 1997

The Plaintiff’s action against the Second Defendant was discontinued.  The First Defendant’s solicitor obtained leave to withdraw and indicated that his client did not intend to appear to defend the matter, and that is what happened.

The Plaintiff was twenty-three years of age at the time of trial.  Her claim is for damages for personal injury and aggravated damages arising out of sexual assaults on her by the First Defendant over a period of about five years commencing when she was aged eleven years.  The sexual abuse was frequent and after a while extended to sexual intercourse.  All of this was against her will.  The First Defendant is plainly liable for tortious damages.

The First Defendant was her stepfather and because of her mother’s general antipathetic rejection of her in favour of other siblings and frequent ill-treatment by way of physical punishment, she felt unable to complain;  and even after her stepfather’s conduct was revealed, she derived little comfort from her mother.  Her mother’s conduct has contributed in a significant part to the Plaintiff’s personal problems other than those relating to sexual matters.  However, the sexual features alone would have substantially produced many of her chronic problems. After the First Defendant was released from prison he returned to the family and soon after that, she moved to live with her natural father. 

During the period of her stepfather’s assaults on her, she was also subjected to a number of sexual assaults by her brother Brendan.  These too have contributed, but only in a minor part, to the lasting harm which she has suffered.

Her reaction to these events seriously disrupted her education, and although she attempted to resume it after moving to live with her natural father, her continuing state of distraction from her experiences defeated that attempt.  As the result, her education level is roughly the equivalent of grade 11 with a little added training relating to business matters.  However, because she is now rearing her son as a single mother, she is working part time as a casual waitress bar attendant.  When he grows to school age, she will be able to work at that full time.  She could probably also perform other work involving clerical or mathematical skills.

She claims that she had ambitions to become a secondary school teacher of mathematics and computer operation, and through a teacher she had obtained appropriate enrolment forms to enter the teachers training college after Grade 12.  In her last year and a half at school her ability at mathematics was above average but her English subjects were not good.  Otherwise her marks at the time suggest that she was only an average student.  There is no evidence as to her level of performance prior to her mistreatment.  Her performance deteriorated after the disturbance in her family caused by the prosecution of the First Defendant for his crimes.

Having regard to all the circumstances, including her mother’s attitude towards her and treatment of her which may have impeded her ambitions, absent the First Defendant’s misconduct her chances of becoming a high school teacher cannot be rated higher than one third.  She faced many adverse factors, not the least being her unproven ability to perform academically at that level, for four years of successful university education would have been necessary.

In respect of her general psychological health, as might be expected, she has had a serious reaction to the First Defendant’s treatment of her.  Whilst she has not had a breakdown, she has had symptoms of Post Traumatic Stress Disorder.  In part these consist of re-experiencing some of these events, nightmares, a pervasive sense of mistrust, especially regarding men, insecurity with people that she does not know, and mood shifts towards anger and depression.  Not surprisingly, her attitude towards sexual activity is seriously affected and her capacity for enjoyment of it is seriously impaired, though it improved after the birth of her child.  She entered into a de facto marriage which has now broken down and she has custody of the child of that association.  This brief catalogue of her illness is more fully explored in the report of Dr Saboisky (ex.9).

Fortunately, with the passage of time and her relationship with her former de facto husband, the intensity of her symptoms have subsided considerably, but she is still left with ongoing personal difficulties, especially in the area of intimacy, trust and sexual reciprocity.  She also continues to experience some mood swings.

Although Dr Saboisky reported in may 1995 that he did not believe that she currently needed any psychiatric or psychological assistance, he now says that she does.  This happens to conform with the report of a psychologist, Ms Meredith, who said in 1996 that the Plaintiff would benefit from such treatment.  Having regard to the break-up of her de facto relationship and the probable exacerbation of her former state by that event, this should be allowed, though there must be some suspicions as to the validity of the recommendations.  The cost of about thirty sessions of treatment is about $4000 of which the present discounted value is $3750.  This figure should be allowed.

Because of the serious and lengthy period of suffering during which she experienced her sexual abuse at the hands of the First Defendant, because of the serious psychological impact it has had upon her, and because of the many years of the future for which she will suffer its consequences, even in an abated degree, the amount of general damages should be substantial.  This is properly reflected in a figure of $40,000.

It should be stressed that the amount awarded for this component does not include any element of punishment of the First Defendant:  that has already been effected by his gaol sentence.  Moreover, the award does not pretend to compensate the Plaintiff adequately for the suffering she has endured.  When damages are awarded for personal injury, the law has long since recognised that this cannot be achieved by a money award, and so the amount is assessed as well as that can be done by comparison with other awards.  It would be wrong to interpret it in any other way.

There will be interest on one half of that figure, representing past loss, at the rate of two percent per annum for ten years, producing a figure of $4000.

The head of damages relating to loss of earning capacity is more difficult to assess, particularly as the Plaintiff’s teaching career would have been interfered with by the birth of her son.  She would not have graduated until 1 January 1996, after four years of university education, by which time the child was born, and until he attains school age, it is unlikely that because of the unlikelihood of part-time teaching work or alternatively the costs of child care, she would have suffered any substantial loss at all.  In her present position, child care cost is negligible, whereas it would have been much more substantial if she were permanently employed as a teacher.  Her learned counsel very properly recognised his difficulties and did not press for other than a nominal allowance for this period.  It should be set at $2,000.00, including interest.

In two and a half years when the child will be of school age, she will be able to take full-time work, and had she been a teacher she could have resumed that occupation.  As things are, she will at least have work as a full-time bar attendant.  In both cases the child care costs would be the same, but the difference in salary would be about $150 per week net.  On the five percent tables, the present value of that loss for thirty years is about $120,000.  This should be reduced to $80,000 to allow for the ordinary contingencies of life over such a long period.  Because her lost chance of achieving this result is limited to one third, this produces a figure of about $27,000, and because of her chance of obtaining more remunerative work than that of bar attendant, this should be further slightly reduced to $22,500.  As its receipt is accelerated by some two and a half to three years its present value is $20,000.  This accords with a global assessment of the entire operative circumstances.

Exemplary and Aggravated Damages

Because the First Defendant was imprisoned for his conduct, the Plaintiff correctly does not ask for exemplary damages:  Watts v Leitch (1973) Tas SR 16. However, she seeks aggravated damages because of the nature of the assaults upon her and the breach by the First Defendant of his trust as her stepfather. Despicable as the conduct of the First Defendant was, and as serious as the emotional hurt to the Plaintiff proved to be, this is not the type of case where aggravated damages should be awarded. They are designed to add to the compensation because of the deliberate and intended insult and humiliation that is necessary to such an award. Nothing of that nature is suggested here, and the somewhat generous amount of the award of general damages is designed to compensate the Plaintiff fully for the suffering that she actually experienced. Aggravated damages would amount to a doubling up of that factor. Therefore there will be no allowance for this component.

Summary

Damages are as follows:

Future treatment	$3,750
Economic loss-
Past	2,000
Future	20,000
General damages	40,000
Interest thereon	4,000
$69,750

Costs

The Plaintiff seeks an order for costs to be taxed on an indemnity basis.  An order will usually be made on a party and party basis unless there is some good reason to the contrary, and then the matter is in the discretion of the court.  The type of conduct which usually attracts such an award is not present in this case, but the categories of case in which the discretion may be exercised are not closed:  Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248 at 257. This is not a suitable case to extend that list.

Orders

There is judgment for the Plaintiff against the First Defendant in the sum of $69,750 (Sixty-Nine Thousand Seven Hundred and Fifty Dollars) together with costs, including reserve costs, to be taxed on the appropriate District Court scale applicable to an award of over $50,000.