Bott v State of South Australia and Dohling No. Cicd-97-92 Judgment No. D3776

[1998] SADC 3997

BOTT v STATE OF SOUTH AUSTRALIA AND DOHLING

Criminal Injuries
Judge Herriman

The plaintiff sues for compensation under the Criminal Injuries Compensation Act 1978 as amended in respect of an assault committed on her by the second defendant Kevin Dohling (“Dohling”) at West Mount Gambier on 5 February 1994.

By his affidavit in response to the claim and in evidence during the course of the trial, the second defendant Dohling has admitted the assault, albeit that he has disputed some of the alleged circumstances of it.  I will deal with those later.

The substantial issues at trial have been causation and damage. 

PLAINTIFF’S BACKGROUND

The plaintiff was born in Queensland on 2 June 1969, but moved to Melbourne, with her parents, when she was two years old.  At some point her parents separated and, at about age 12, she went to live in Colac, for a short while, then to Portland, where she completed her schooling. At some point in her adolescence, she was fostered out for a short time.  She left school in Year 11, at the age of fifteen, and went to live in Mount Gambier. 

Although the evidence was not clear on this point, it appeared that she thereafter worked in various unskilled occupations, principally in food outlets, in and around Mount Gambier.

On a date, which she did not identify but which I take to be in the late 1980s, she entered into a de facto relationship with a man named Norton.  That relationship lasted for four and a half years and a son was born of it, Jamie, who is now aged nine years.  The relationship ended, on the plaintiff’s account, because she was “too young”.

In about 1990 she met another man, had a brief sexual relationship with him and then discovered she was pregnant. They lived together for a period of some months and he left her when she was eight months pregnant.  In April 1991 her second son, Bradley, was born of that union.  The relationship ended, she said, because of her companion’s drug taking and his frequent absences from the home.

HER RELATIONSHIP WITH DOHLING

She first met the defendant Dohling in Mount Gambier in 1991.  Their relationship did not begin immediately and, indeed, it was not until July 1992 that they began to see more of each other.

In December 1992 they entered into a de facto relationship and, in February 1993, became formally engaged.

On the night of their engagement party and whilst she was asleep in bed, the defendant punched her in the eye over a remark made to her by another guest at the party.  She said that, after that time, there were many occasions when he was violent towards her and, indeed, that this occurred as often as once a week. 

She then spoke of an incident when she was at a hotel with some girlfriends and Dohling arrived, “dragged” her into a taxi and took her home, where he undressed her and insisted upon inspecting her to see whether she had had sex with anybody.  He then struck her several times with his fists and threw her around.  This incident was denied by the husband but, for reasons I will later develop, I find that it occurred substantially as she related it.  I will hereafter refer to it as “the taxi incident”.

The plaintiff commenced a child care course in Mount Gambier in July or August of 1993 and in November of that year obtained employment in that capacity with the Children’s Services Office of South East Family Day Care.  She was by this time not prepared to further tolerate Dohling’s violence and persuaded him that it would be better for him to return to live in Mount Gambier (they had been living at nearby Mount Schank). He did this and she later moved to a separate address in Mount Gambier. That was the end of their de facto relationship (November 1993), although she said he continued to pester and harass her with prank phone calls and the like.  Dohling acknowledged he saw her during this period, but he denied making prank phone calls to her.

THE SUBJECT ASSAULT

The assault occurred on the 5 February 1994 and, as a result of it, Dohling was charged and convicted of assault, being sentenced to three months’ imprisonment on 17 May 1994.

The circumstances of the crime became important in the context of the medical evidence which later emerged in the case and for this reason I will cover the plaintiff’s account of it in some detail.  She said:

·at the time it occurred, she and Dohling had been separated for some three months and she was then living with her two young children, aged four and two, at Commercial Street, Mount Gambier;

·on the evening in question, she was at home making a cake with the children when, without warning, the defendant forced his way through the front door of the house and began yelling abuse at her.  He twisted her arm behind her back, placed his hand on her throat and forced her against the fridge door.  Her four-year-old son, Jamie, attempted to intervene, but he was picked up by Dohling and swung around.  She attempted to prevent this happening, whereupon Dohling forcibly placed Jamie on a chair and then punched her in the left ear, causing her to collapse to the floor with a bleeding ear.  She then saw the defendant pick up the chair on which Jamie was sitting and throw it against the wall with enough force to break the chair and cause Jamie to fall to the ground. At some point the defendant also slapped Jamie with an open hand, felling him.  Some of these matters were disputed by Dohling and I will discuss his evidence in due course;

·on her own account she was then too scared to attempt to leave the house.  Her mother had telephoned there by chance and she was expecting her to soon arrive;

·Dohling then proceeded to have a shower;

·she then witnessed him resisting and being forcibly removed from the house by four policemen;

·after he was taken away, she left that house and went to live with her mother;

·she frankly conceded that she suffered no lasting physical injury in the assault and did not deem it necessary to see a doctor about her ear.

EVENTS AFTER THE SUBJECT ASSAULT

The   plaintiff had been working as a child care provider at the time and continued that work for some four months afterwards, but she said in evidence that she knew something was wrong with her during that period.  She was stressed and, at the end, was “losing it”.  She was not sleeping, was tired most of the time and was not energetic enough for the children.  Under cross-examination she said she put herself  “in the mode” to look after the children and it was only when she “sat back and ... had time to think about it ...” that she collapsed.  As a result, she ceased work in June 1994.

In the meantime, she had been involved in the court proceedings in Mount Gambier, which saw Dohling convicted and sentenced to imprisonment.

By this time she had formed a friendship with Tim Bott.  In July 1994 he bought a house at Port MacDonnell.  She was aware when Dohling was to be released from prison and decided to move out of Mount Gambier before that occurred, going to live at Bott’s house at Port MacDonnell.  Bott later joined her there after they were married in March 1995.

In early 1995, she was becoming very concerned about her mental state and thought she was going mad.  She was frightened all the time, her eyes were flickering and everything was humming around her.  Her heart was going and sometimes she would faint.  She felt as though everybody was looking at her and would not go out shopping, nor where there were crowds of people.

In May 1995, she sought treatment from the local health centre, and saw a community health nurse.  That led to an appointment with a general practitioner, Dr Purvis, and, ultimately, her referral to a psychiatrist, Dr Hustig, who has seen her since.

During 1996 she attempted to carry out some child-care work with Mount Gambier Out of School Hours Care Service Inc.  She worked at St Paul’s School for a total of sixteen hours between 22 May and 4 August 1996, but  found she could not continue with it, as she became too “worked up”.  She also worked for two days in the meatworks in Mount Gambier in 1997.

In July 1997, she happened to see Dohling in Mount Gambier, became very upset and immediately left Bott and fled the district to live anonymously in a Victorian town, where she still lives.  She remains on good terms with Bott, they see each other regularly, communicate daily, and he assists her financially.  She does not regard their marriage as over and says she needs time to work things out.  She acknowledged at trial that there were difficulties in her marriage to Bott, because of her fear of intimacy and her agoraphobia.

The plaintiff said she continues to sleep very poorly, being afraid that someone will break into her house, and she suffers nightmares over that sort of thing, over the memory of Dohling swinging her son around and the fear of losing her son.  She has panic attacks, abuses alcohol and does not presently want any contact with men.  She finds life in the small town easier, however, albeit that she remains on medication.

She said in evidence that she had not, prior to the subject assault, suffered from sleeplessness, nightmares, excessive consumption of alcohol, panic attacks, fear of men, symptoms of depression, anxiety, agoraphobia or emotional upset.

Her evidence on a number of these matters was challenged by both defendants and I shall deal with those challenges later.

MEDICAL TREATMENT

It is important to note here that, when she saw the Community Mental Health Nurse, Jeanette Henke, in May 1995 (P3), that person recorded that the plaintiff’s stressors included the release of Dohling from prison, a fear (causing sleeping difficulties) that he would slash her car tyres at night, consistent prank phone calls and her recent marriage in March 1995.  (The plaintiff later said in evidence that the marriage “stress”, to which she then referred, related to the impending wedding ceremony itself and her anxiety and agoraphobic feelings about it.)

Upon referral from the Mental Health Nurse, Dr Purvis, a general practitioner, saw the plaintiff on 30 May 1995 and noted a history of agoraphobia and panic attacks over a period of 18 months previously.  He saw the plaintiff on a number of occasions, but then thought it best to refer her for psychiatric attention and did so.  He noted her “excessive vigilance at night” and observed that it was difficult for him to say what component of her problems was secondary to the episodes of assault.  He thought it best to seek psychiatric opinion on that.

The plaintiff was first seen by a psychiatrist visiting Mount Gambier, Dr Harry Hustig, on 21 March 1996.  He said she was then suffering from symptoms consistent with post-traumatic stress disorder (“PTSD”) arising from a situation of domestic violence.  “... the worst assault occurring on 5 February 1994”.

Dr Hustig continued to see the plaintiff and, by October 1997, he noted some abatement of some symptoms, in the context of her supportive relationship with Mr Bott, but he was still sufficiently concerned about their gravity to doubt his earlier optimism about an early recovery.  On all occasions he recorded anxiety, problems with short term memory, poor concentration, lack of energy, poor sleep patterns, labile moods, feelings of dysphoria and periodic flashbacks.  He also noted agoraphobic tendencies.  He put her on Anafronil, an anti-depressant, and commenced her on an anxiety behavioural programme to assist her with her agoraphobia.  I will deal with his detailed findings later in these reasons.

DOHLING’S EVIDENCE

The defendant Dohling presented his own case, assisted by his mother, whom I allowed to act as a McKenzie friend.  He said he was born on 14 July 1969 in Murray Bridge and that at age two he moved to Mount Gambier with his parents and sister.  He finished high school there at Year 10 and then went crayfishing, later working for a lengthy period as a ceiling fixer.  He was then unemployed for a while, before going to the Riverland fruit picking and attending a pruning course.

He returned to Mount Gambier some time prior to his first meeting with the plaintiff in 1991.  He confirmed that their relationship began in about July 1992, and that they moved in together in December 1992 and stayed together until November 1993.  When they separated, Dohling went to live with his mother, but said that he and the plaintiff were together on a few occasions in the intervening time.  He acknowledged that during their period of cohabitation they had arguments now and then and that he was violent towards the plaintiff on a “couple of occasions”. 

He denied the taxi incident altogether and he denied making prank phone calls or harassing or abusing the plaintiff, as she had alleged.

As to the subject assault, he largely admitted it occurred as pleaded.  He denied, however, that he forcibly entered the plaintiff’s house and said that it began when he encountered her walking in the street as he was driving home from cricket.  He had been drinking at cricket and was, he said, moderately drunk.  He said he picked her up and they had an argument in the car, so he took her to her home.  He admitted that he there grabbed her on the wrist, then the neck and pushed her against the wall, but he denied her version of the incident involving Jamie, saying that he merely pushed the chair on which Jamie was sitting, whereupon it broke and Jamie fell to the floor.  He did not look at the plaintiff’s ear afterwards and did not see it bleeding. He did not remember swinging Jamie around and did not know whether he had.  In his affidavit which he put in evidence, he also admitted slapping Jamie with an open hand and knocking him to the ground.

He said the plaintiff was probably screaming and hysterical during this incident and that she may have sought to prevent him from assaulting Jamie.  He could not be sure whether the plaintiff fell or stumbled after he hit her on the ear, but acknowledged she went to the ground.  He admitted to then having a shower.

Under cross-examination, he was questioned closely about incidents of violence pre-dating 5 February 1994.  He admitted that he had given the plaintiff “a bit of a shove” on two occasions prior to then and “pushed her into a wall or something” but could not remember whether he had  slapped or hit the plaintiff prior to then, as it was a while ago.

He remembered one occasion when he gave her a “backhander” but that was “just arguing”. He could not remember whether he had kicked her, could not be definite about that.  He admitted “giving her a slap” following the engagement party.  He was really unable to say, one way or another, whether there had been other assaults.

In discussing the subject assault, he freely admitted that he usually got violent with alcohol, but he was unable to explain discrepancies between his evidence as to that incident and the contents of his affidavit sworn on 2 May 1997.

CREDIT ISSUES

In considering the credibility of the plaintiff, I have had regard to those instances where her evidence conflicts with that of Dohling and also to the discrepancies in the histories she provided to health professionals.

I will deal with the latter first:

(1)    The Plaintiff’s Histories Provided to Medical Examiners

The plaintiff was challenged under cross-examination over the histories she had provided to Dr Hustig and Professor Goldney, as to their internal inconsistencies and as to the conflicts between them and her pleadings and evidence in this action. 

In the course of Dr Hustig’s evidence it became clear, and he frankly conceded it, that the history he had taken and recorded in his report (P7) was quite inaccurate and confusing.  Apart from confusing Dohling with the father of the plaintiff’s second child, he also appeared to regard the taxi incident and the subject assault as all part of one event.

When the confusion was explained to him, he said there were probably two reasons for it.  The first was that, due to the plaintiff’s level of distress when he saw her, he had found it very difficult to obtain a good history from her. Secondly, he stressed (and the defendant’s expert Professor Goldney supported him in this) that his history had been taken in the context of the plaintiff’s need for therapy and not with a view to any medico-legal enquiry.  From his perspective, it did not then matter whether the plaintiff’s condition had arisen from one or several incidents of domestic violence; his diagnosis and treatment remained the same.  Later, when he was asked to provide a medico-legal report, he acknowledged he had done so on the basis of a still-limited history.

Whilst it was thus clear that Dr Hustig took the plaintiff’s history, particularly relating to domestic violence, in circumstances where she was very upset and where precision as to the particular events relevant to her condition was less important, the same could not be said of her interview with Professor Goldney.  That interview was solely for medico-legal purposes and, in the course of it, she told Professor Goldney something quite different about the subject assault.  She said that somebody had broken into her house and attacked her and her son and that she had been stalked for 12 months before that.   She said her assailant was “just a person who used to live down the road”.  She then said that she had gone out with him for three months, some four years ago, and that his name was Dohling.  It had not been a serious relationship, she said, and she had never lived with him.  Her account of the violence that had occurred in the relationship was also in conflict with her other accounts, in the sense that it identified events not previously mentioned and, in particular, did not describe the taxi incident. 

Professor Goldney was, of course, well aware of these discrepancies, by reason of the fact that he had, in his possession, her affidavit (P2) and the other medical and health reports.  He did not confront the plaintiff with any of the them, but did note in his report, and affirmed in his evidence, that he experienced difficulty in obtaining a sequential history from her.

There can be no doubt that the history provided by the plaintiff to Professor Goldney was neither accurate nor complete and, of course, the same can be said of that taken by Dr Hustig.  It is more difficult, however, to criticise the latter for reasons already canvassed. 

The defendants quite properly challenged these inaccuracies and inconsistencies, as they went not only to credit, but to the respective diagnoses and to the causation issue itself.

Under cross-examination, the plaintiff said she believed she had told the whole story to Dr Hustig, but said that she had been very upset and was “in a mess” during her interview with Professor Goldney.  Nevertheless and even after the inconsistencies were put to her, she said she thought she had given the same history to both psychiatrists.  Clearly she had not done so.

If the plaintiff had otherwise presented as a careful and accurate historian and if the varying versions of events provided to Dr Goldney had had some obvious capacity to corroborate or bolster the plaintiff’s case, I would have been suspicious of them.  In the particular circumstances of this case, however, I find them of little assistance, in any respect.  I say so for the following reasons:

·.... both doctors clearly had considerable difficulty in obtaining a proper history, and said so;

·.... Dr Hustig’s history was taken at a time when his only interest was in the fact of a history of domestic violence and not in any particular incident.  Even then it was taken two years after the event;

·.... when the plaintiff saw Professor Goldney, it was nearly four years after the assault and, on her own account, she was very anxious;

·.... there was nothing obvious to be gained by her in providing to Professor Goldney the history she did, and it was even internally contradictory as it proceeded;

·.... her lack of recall, or appreciation of the significance of these conflicts, was manifest in her response that she thought she had given the same history to both practitioners, anyway, when patently she had not;

·.... it was obvious from her evidence, that her estimates as to time were approximate indeed and that she had difficulty in locating events within any historical framework;

·.... it is clear from all the medical evidence that she was suffering from severe depression and anxiety when she saw both examiners.

Another matter needs to be dealt with in the same context, and it relates to the reports P1 and P3.  Variously, the plaintiff told Dr Purvis and Nurse Henke that she had had her symptoms for eighteen months and “approximately sixteen months” prior to her consultations with them.  Taken literally, those estimates of time backdated her symptoms to a period of between one and three months prior to the subject assault.  Having heard the evidence and having had the opportunity to observe the plaintiff carefully, I am not prepared to find that that evidence casts any serious doubt upon her claim that none of her symptoms have been experienced prior to the assault of February 1994. That date was in fact fourteen months before the relevant appointments and I place no store upon estimates extending that period by between one and three months, particularly in the context of the plaintiff’s demonstrated difficulties as an historian.

(2) The Plaintiff’s Evidence Generally

I thought the plaintiff gave her evidence in a reasonably clear, if timid  and artless way.  She had obvious difficulty with time-frames and lacked the mental agility to grasp the significance of some of the conflicts that were put to her.  It was clear from the evidence of Professor Goldney that she had given him a history of her relationship with Dohling that sought to minimise its significance, but I bear in mind the matters I have mentioned above and, as well, the possibility that she was reluctant to re-live the circumstances of the relationship and assault.  The nature and extent of the parties’ relationship was by then patently well-known to all connected with the litigation.  It was even a matter of court record. 

Overall, I felt she was doing her best to tell the truth about events which were obviously extremely painful to her and with which she was ill-equipped to deal, either when they occurred or when she was later asked to relate them to examiners or, even later, to the court.  It was potentially detrimental to her cause to make anything of the taxi incident (which Dohling even denied) and yet she chose to do so. In travelling to Adelaide for medical examinations, appearing in court and giving evidence, she was subjecting herself to an ordeal which, in terms of her acknowledged psychiatric disabilities, must have been extremely stressful. There was no obvious or demonstrated embellishment or exaggeration, such as might have been consistent with any deliberate attempt to mislead, and overall I had confidence in her truthfulness.

By way of contrast, the defendant Dohling was an unimpressive witness.  He acknowledged the assault which led to his criminal conviction and which was the subject of this action and was prepared to concede that there had been occasions prior to it when he had been violent to the plaintiff.  He appeared to regard that violence as of no particular consequence; indeed, so unremarkable was it that he could not even remember whether or not he had kicked the plaintiff on one occasion.  He recalled “shoving” her sometimes, one slap on their engagement night and one “backhander”.

His lack of memory of matters of this kind was either indicative of a level of indifference to domestic violence which made his denials of such conduct unreliable or, more likely, and so I find, it pointed to evasiveness. 

In the event, I find he was habitually violent towards the plaintiff from about March 1993 onwards and wherever the plaintiff’s evidence on these matters conflicted with his, I preferred her evidence. I find it probable that the incidents of violence she related to the court, including, in particular, the taxi incident and the subject assault, occurred substantially as she described them.

CAUSATION

The conclusions I have so far reached do not necessarily resolve this matter, however, because the only act of violence upon which the plaintiff’s claim is presented is the subject assault and it remains necessary for me to consider whether the plaintiff suffered a compensable injury arising from that act.

In that respect, and despite Dohling’s denials as to other specific instances, both defendants sought to rely upon earlier events in the plaintiff’s life, and the history of previous violence in the relationship, to support their contentions that the injuries of which the plaintiff now complains were caused solely or largely by events which pre-dated 5 February 1994.  Both defendants pointed to dysfunctional elements in the plaintiff’s early family life, the fact that she had moved home on several occasions as a child, had been fostered out for a period, had had two unsuccessful relationships prior to meeting Dohling (each of which had produced a child) and one marital separation since. It was put that that unhappy background, coupled with the circumstances of her relationship with Dohling, was sufficient to cause her present condition and that the subject assault was no more than another chapter in a continuum.  The first defendant relied, too, upon the taxi incident, an event which Dohling denied having occurred.

Clearly, the plaintiff had a difficult childhood and I have already dealt with that.  Professor Goldney particularly remarked upon the significance of her having been fostered out at one point.

Having said that, and leaving aside her inability to be precise with dates or times, it would appear that, over the seven-year period between her move to Mount Gambier and the commencement of her relationship with Dohling, she had managed her life and had been able to obtain regular work and bring up two children.  She had had two jobs in fish and chip shops, worked for Kentucky Fried Chicken, Fletcher Jones, a chicken shop and in a crayfish factory.  Her unchallenged evidence was that she was mostly employed over those years until 1993, and that it was only a matter of months when she was out of work, either between jobs or having her two children.

Her first relationship, with Mr Norton, was a reasonably lengthy one, extending over four and a half years and resulting in Jamie’s birth in 1989.  As to the relationship with Bradley’s father, it was a casual episode which led to her pregnancy.  The relationship ended because of the father’s drug taking.

I was impressed by the fact that during her relationship with Dohling, in 1993, she had undertaken and completed a course in child care and had then worked in that occupation for a continuous period of six months, until she was unable to continue for reasons discussed. 

There was no evidence from Dohling suggesting that she was suffering from any of the relevant symptoms, either during their cohabitation or prior to the subject assault, nor any evidence at all suggesting any change in her behaviour or presentation after the taxi incident.  She had not sought medical treatment after it and was managing a household with her two young children and, for some of the time, Dohling.

She struck me as a person of limited education, personal and work skills, who had previously sought and obtained regular work and was prepared to continue trying to support herself. 

So, despite her past history, with all its difficulties and setbacks, I find that, prior to the subject assault, the plaintiff was managing her affairs and I accept her evidence that she was not suffering from any of the symptoms of which she now complains; that is to say, she was not suffering from sleeplessness, anxiety, short term memory or concentration problems, lack of energy, feelings of dysphoria, depression, nightmares, flashbacks or symptoms of agoraphobia.

That finding does not deny the probability that, because of her past history, she was predisposed to the development of those symptoms; indeed, the opinions of both experts at least converged on that.

PSYCHIATRIC EVIDENCE

In giving their evidence, both psychiatrists were afflicted by the difficulty that neither had obtained a history that was accurate or complete, hence neither of their original opinions was fully informed.  In the event, each was asked to review his diagnosis in the witness box on the basis of a new set of assumptions, some of which remained contested and not all of which were fully spelled out.  This implies no criticism of counsel; indeed, neither expert could have been provided with an adequate picture without sitting through most of the plaintiff’s evidence. That made each of their tasks difficult and I have borne that in mind in comparing their evidence.

Professor Goldney considered that the plaintiff suffered from a major depressive disorder with associated panic symptoms.  He was unable to say when the onset of those symptoms occurred, but felt very confident in saying it was probable they had developed as a result of all the “interpersonal stressors” in the plaintiff’s past, identified in these reasons, combined with the violent relationship she had had with Dohling.  He considered that the plaintiff could not have been particularly well prior to 5 February 1994, and that the subject assault merely contributed to the plaintiff’s overall condition, to the extent of 10% or 15%; in other words, it was simply another one in a series of violent episodes occurring in their relationship.  In response to a series of matters put to him about the circumstances of that assault, he then agreed it was perhaps a little more significant than he had first appreciated, but he adhered to his estimation of its contribution and pointed to instances where the plaintiff appeared to be coping with life after it.  He thought that, with treatment, the plaintiff’s recovery would still take two years.

Dr Hustig took a very different approach to his diagnosis.  He considered that the plaintiff’s symptoms were consistent with the existence of a PTSD and that the subject assault was of sufficient gravity to have triggered that condition.  Of necessity, such a diagnosis must attach itself to a particular trauma, so the taxi incident was separately described and it was put to him that that incident was also a trauma sufficient to give rise to the disorder.  He agreed and said that, in his opinion, each incident had probably led to a separate PTSD and that the two PTSDs had “co-merged”, that each would have been sufficient, but they had occurred in aggregate and, in the plaintiff’s perception, were life threatening.  They were outstanding traumas in a situation of low-grade domestic violence.  He was not prepared to apportion their relative contributions to the plaintiff’s condition since February 1994.

He considered there was still the potential for recovery with treatment, but certainly not without treatment.  Even with treatment, he could not say her recovery would be complete, although he thought it would be enough to enable her to carry out some work. 

He readily agreed with Professor Goldney that there were associated symptoms of depression and anxiety, that they were commonly cross-linked with PTSD and that, because of her earlier history, the plaintiff was historically predisposed to these, but, unlike Goldney, considered that, whilst historical events might have led in time to the plaintiff becoming distressed and dysfunctional, the two incidents had each triggered PTSDs.

Both experts conceded that from the point of view of treatment, the precise diagnosis or description of the plaintiff’s condition was of little relevance.  From the point of view of causation, however, its origins are of more significance and I find myself obliged to determine which (if any) diagnosis is more likely to be correct.

Having considered and compared their views and taken account of the responses each made to the new facts he had to bring into account in effectively offering a diagnosis from the witness box, I find I prefer the opinion of Dr Hustig and I do so for a number of reasons:

·Professor Goldney felt confident, on the basis of the plaintiff’s prior history, that even prior to 5 February 1994 the plaintiff must have been suffering some level of depression and dysfunction, but no evidence emerged to confirm that:  as I have already noted, the plaintiff denied it and Dohling, who contended for it and who was living with her up to three months before that time and saw her in the intervening period, did not proffer any evidence at all on the matter.  The plaintiff appeared to be managing her life and her two children prior to 5 February 1994 and I find that she was not experiencing the suggested symptoms.

·Professor Goldney saw the plaintiff’s history as involving significant stressors during her childhood, unhappy adult relationships resulting in the births of two children, and then a violent relationship with Dohling.  He referred to this "longitudinal” progression and saw the subject assault as simply a contributor to it. 

Whilst there can be no doubt that the plaintiff had had an unhappy childhood and some difficulty with two previous relationships, as I have noted, one of them was some four and a half years in duration, she had had a measure of stability in her life and she appeared to have still coped with her life and to be functioning satisfactorily at the time she commenced her relationship with Dohling. 

·On the evidence, I find that, whilst her relationship with Dohling was a violent one, the subject assault was not just another incident in that history.  Rather, it occurred some months after cohabitation ceased, and was a major event which stood out, for the reasons I have already discussed.  The plaintiff spoke of regular weekly violence, but three incidents rated special mention:  being punched whilst she was in bed on her engagement night; the taxi incident; and the subject assault.  The latter was all the more outstanding in its particular context.  Contrary to her own interests, she was prepared to lay some emphasis on the taxi incident as well, in each of the latter two cases being in fear of her life, and in the third case, that of her child as well.

·Amongst those factors relevant to the subject assault, it is important to note that the plaintiff immediately ceased living alone and went to live with her mother, that she soon began to feel inadequate in her work environment and that she began to experience fears and nightmares about home invasion and harm being caused to her child, Jamie.  Those factors, alone, are adequate testament to the impact it had upon her.

·Despite his rejection of the diagnosis of post-traumatic stress disorder, Professor Goldney was prepared to accept that it was a possible scenario and that it was also possible that the subject assault was the straw that broke the camel’s back, even in terms of his own diagnosis.  He did not favour that view, however.

·Dr Hustig’s opinion was fortified by the fact that he had been treating the plaintiff since 1996 and had seen her on a number of occasions.  Professor Goldney saw her once only.

·I was also impressed by the fact that Dr Hustig, whilst adhering to his opinion, seemed more open to accept reasonable hypotheses that potentially threatened it.  Professor Goldney was not.

FINDINGS

I therefore find that in consequence of the subject assault, the plaintiff suffered some slight physical injuries and otherwise has suffered a PTSD with associated anxiety and depression.  I find that that condition developed in the plaintiff between February and June 1994 and that it continues to this time.  I further find that it is likely to be amenable to treatment, but that treatment is likely to extend over a two-year period and there is some risk that the plaintiff will not make a complete recovery.

Having so found, I am mindful of Dr Hustig’s opinion, which I accept, that the plaintiff has also suffered a PTSD from the taxi incident.  That is not an incident in respect of which compensation is claimed and it is therefore necessary for me to consider to what extent the plaintiff’s psychiatric condition since 5 February 1994 has been attributable to that PTSD which arose out of the subject assault.

In approaching this task, I have had regard to the views of the Full Court as expressed in T v State of SA & Anor ((1992) 59 SASR 278 and HK & Others v State of South Australia & Anor (1997) 190 LSJS 174, and, as well, to the appropriate method of determining causation as discussed in March v Stramare Pty Ltd (1991) 171 CLR 506.

The evidence of Dr Hustig, on this point, was of limited assistance in that  he said he was “reluctant” to attempt to apportion the separate consequences of each of the two events.  This was hardly surprising, given that he did not have the benefit of a complete history on either of them, and that the information he received in the witness box, and upon which his opinion was sought, was incomplete.  I have thus been obliged to consider, in the light of his evidence and against the findings I have already made, the extent to which the subject assault has caused the plaintiff’s present psychiatric condition.

There was simply no evidence as to when the PTSD resulting from the taxi incident arose or would likely have arisen; indeed, the date of the incident itself never emerged:  it must have pre-dated November 1993, however, and possibly by as much as twelve months.  Certainly, there was no evidence of the plaintiff exhibiting any symptoms of PTSD between then and 5 February 1994.  All that was clear was that, within a few months after 5 February 1994, the plaintiff began to experience the symptoms of which she now complains and the disorder then became manifest.

On all the evidence, having particular regard to the plaintiff’s testimony, her presentation in the witness box and her constant fears of home invasion and harm to her children, I find it probable that the subject assault has been the major cause of her present psychiatric condition.  I further find that, but for the development of the PTSD arising from the subject assault, she would have continued to possess the working capacity she had on 5 February 1994, albeit with some minor symptoms attributable to the PTSD arising from the taxi incident.

In fixing an award for non-financial loss under s.7 of the Criminal Injuries Compensation Act 1978, I have not proceeded to assign an appropriate numerical value to her general condition since February 1994 and then applied some process of contribution to reflect the consequences of the taxi incident; rather, I have fixed that value after allowing that a small part of her non-financial losses since 5 February 1994 has been attributable to the non-compensable event (ie the taxi incident).  That is to say, even without the subject assault, I find she was going to suffer from mild symptoms of a PTSD, anyway.  In fixing that value, I have also accounted for the usual contingencies and, in particular, the possibility that, even without the subject assault, the plaintiff’s early life and the taxi incident might in time have led to more serious symptoms, anyway (cf Wilson v Peisley (1975) 7 ALR 571).

I assign a numerical value of 9 to the plaintiff’s injuries and I therefore fix this head of compensation at $­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­9,000.­­­­­­­­­­­­

As to financial loss, I find that notwithstanding the need to care for her two children, the plaintiff was able to earn an income as a child care worker and that over the period between 7 November 1993 and 19 June 1994, she earned a gross amount of $4,575.  Annualised, that promised an income of $7,436 per annum, which after tax was a net income of approximately $7,000 per annum.  Up to the date of trial, a net loss of $7,000 per annum multiplies out at approximately $26,000.  That figure should then be reduced to take account of approximately $300 earned by the plaintiff in 1996 and otherwise for the usual contingencies.  I would thus be disposed to award the plaintiff $20,000 for past financial loss.

As to the future, Professor Goldney thought her treatment might occupy a further two years.  Dr Hustig was less sure of that, but thought she would regain a capacity to carry out work.  Given the nature of her child-minding work, I find that within two years, and with treatment, she will likely regain that capacity.  Again, to take account of the usual contingencies, to allow for the risk that she might not have continued with that work, and to also account for the possibility she will not recover that capacity, I fix that aspect of her financial loss at $11,000.  The total financial loss is thus $31,000 and, applying the reduction required under s.7(8)(a)(i), I adjust her financial loss to the sum of $23,750. 

I therefore determine that the plaintiff’s entitlement to compensation under s.7 of the Act is in the sum of $32,750. 

I further record that it was ascertained during trial that the defendant Dohling had the following means.

He said that he was presently unemployed, having last worked on 24 January 1998 as a casual vineyard hand.  He said he had worked prior to then as a post peeler for about four months in 1997.  He is in receipt of Social Security benefits and has been receiving them for the last  ten months at the rate of about $321 a fortnight. He has the following commitments:

Housing Trust, $104 per fortnight; gas and electricity, $10 per fortnight; food, $60.70 per fortnight; cigarettes, $30 per fortnight; alcohol, $10 per fortnight.

He owns a car, which is presently being repaired, but he does not have a licence. 

He has about $5 in a bank account and furniture worth about $300.

He is not aware of any major debts.