Brown v Walker

[2023] NSWDC 566

District Court

New South Wales

Medium Neutral Citation:

Brown v Walker [2023] NSWDC 566

Hearing dates:

14 September 2023

Date of orders:

15 December 2023

Decision date:

15 December 2023

Jurisdiction:

Civil

Before:

Waugh SC DCJ

Decision:

(1) Judgment for the plaintiff in the sum of $995,387

(2) The defendant is to pay the plaintiff’s costs

Catchwords:

TORTS – child sexual assault – assessment of damages – aggravated damages

Legislation Cited:

Civil Liability Act 2002

Crimes Act 1900 (Historical)

Uniform Civil Procedure Rules, 2005

Cases Cited:

AA v PD [2022] NSWSC 1039

Cheng v Farjudi (2016) 93 NSWLR 95

CLR 1

Gray v Motor Accident Commission (1998) 196 CLR 1

MBP (SA) Pty Ltd vGogic (1991) 171 CLR 657

Metropolitan Meat Industry BoardvWilliams (1991) 24 NSWLR 54

Purkess v Crittenden (1965) 114 CLR 164

SR v Trustees of the De La Salle Brothers [2023] NSWSC 66

Watts v Rake (1960) 108 CLR 158

Wilson v Peisley (1975) 7 ALR 571, (1975) 50 ALJR 207

Withyman v State of NSW [2013] NSWCA 10

Texts Cited:

Assessment of Damages for Personal Injury and Death” (5th edition, 2021 by Luntz and Harder)

Category:

Principal judgment

Parties:

Rebecca Brown (Plaintiff)
Anthony Stephan John Walker (Defendant)

Representation:

Counsel:
Mr R Royle (Plaintiff)
No Appearance (Defendant)

Solicitors:
Wyatts Lawyers (Plaintiff)

File Number(s):

22/157517

Publication restriction:

Nil

Judgment

1. This is an assessment of damages for personal injury for sexual abuse.

2. The abuse occurred in December 1977 at a time when the plaintiff was 6 years old and the defendant 23. It was reported to the police at the time. The defendant was charged with a criminal offence, to which he pleaded guilty and was sentenced.

3. The plaintiff’s initial memories of the abuse were repressed. They did not resurface again until about 2019, after regular psychotherapy of about six or seven years duration. By then, the plaintiff was 48 years old. As of July 2022, she had been under the care of a psychologist and psychiatrist for a decade, had been hospitalised for lengthy periods on at least 6 occasions, and was suffering from a complex post traumatic stress disorder and recurrent major depressive episodes, albeit that those episodes were in impartial remission. She has not worked full-time since 2018 and it is unlikely she will be able to do so again. Her complex post-traumatic stress disorder will not be cured, but will need to be managed with the help of her doctors.

4. The abuse perpetrated by the defendant on the plaintiff has had a major impact on her life and the state of her mental health. Regretfully it is not the only thing. The plaintiff also suffered and witnessed violence at home as a child. This too has had a major impact on her life and must be taken into account.

My conclusion

5. I have assessed the plaintiff’s damages in the sum of $995,387. I will explain how I have arrived at that figure.

Procedural background

6. The proceedings were originally commenced by statement of claim filed in the Supreme Court on 31 May 2022. The defendant filed a defence to that statement of claim on 29 August 2022.

7. On 15 May 2023 the Supreme Court ordered that the proceedings be transferred to this court pursuant to s.146(1) of the Civil Procedure Act 2005 and that the pleadings in the Supreme Court stand as pleadings in this court.

8. On 13 July 2023 the Judicial Registrar ordered that the defence be struck out under rule 12.7 of the Uniform Civil Procedure Rules, 2005. That rule permits the court to strike out a defence if the defendant does not conduct it with due despatch. At the same time the Judicial Registrar entered judgment for the plaintiff with damages to be assessed and listed of the matter for assessment hearing on 14 September 2023.

9. The plaintiff’s solicitor notified the defendant of these orders by email on the day they were made, in accordance with the direction of the Judicial Registrar.

10. The defendant did not appear at the hearing and it proceeded in his absence.

11. Mr Royle of counsel appeared for the plaintiff.

The statement of claim

12. The plaintiff has pleaded that the defendant assaulted her on four separate occasions on the same day, 23 December 1977.

13. The first occasion is asserted to have occurred when the plaintiff went next door to play with her friend. The plaintiff asserts that the defendant parked his car near where the two girls were playing. He then sat in the passenger seat with both legs outside of his vehicle and called the plaintiff over. The plaintiff did as the defendant asked and he lifted her onto his lap. The plaintiff asserts that he then proceeded to commit acts of sexual assault and trespass to the person upon her by fondling her and putting his hand down the front of her skirt, and down the front of her pants and touching her on the front of her vagina. The plaintiff asserts that after he assaulted her, the defendant took the plaintiff off his lap and told her to go back and play with her friend, and then drove away.

14. The second occasion is asserted to have occurred a short time later when the defendant asked the plaintiff if she wanted a “Big Twirly Whirly”, to which she agreed. The plaintiff asserts that she then put her arms and legs around the defendant, at which time the defendant proceeded to commit further acts of sexual assault and trespass by once again placing his hand inside her pants and indecently assaulting her by touching her on the outside of the vagina. The plaintiff asserts that the defendant then put her down and gave both her and her friend a “Twirly Whirly” before driving away again.

15. The third occasion is asserted to have occurred when the defendant returned soon after. When he got out of his car, the plaintiff asked the defendant for another “Twirly Whirly” to which he agreed. The plaintiff asserts that before he gave her the “Twirly Whirly” the defendant again proceeded to commit acts of sexual assault and trespass to her person touching her in the same way he had previously done.

16. The fourth and final occasion is asserted to have had an added dimension. The plaintiff asserts that the defendant took her into his apartment and once inside, undressed himself and began to masturbate in front of her, and while doing so directed the plaintiff to touch his penis. The plaintiff asserts that she refused and ran from the apartment.

17. The plaintiff asserts that as a result of the conduct of the defendant, she has suffered, and continues to suffer serious psychological injury, loss and damage. Further, she asserts that the conduct of the defendant was intentional, arbitrary and oppressive and in contumelious disregard for her rights and a violation of her rights to personal bodily integrity, and on that basis she claims exemplary and aggravated damages.

The nature of the evidence before me

18. The evidence before me, in the form of a Court Book, included a written evidentiary statement of the plaintiff; a detailed medico-legal report by Dr Geoff McDonald, psychiatrist; the clinical records of the plaintiff’s treating psychiatrist, Dr Tam Luu; the clinical records of the plaintiff’s treating psychologist, Dr Bob Tsapilis; the clinical records of St John of God Hospital; records produced on subpoena by the New South Wales Police; employment records of the plaintiff produced under subpoena by Woolworths Group; and copies of the plaintiff’s tax returns and notices of assessment.

19. This was supplemented by a schedule setting out details of the plaintiff’s employment income from 1997 to 2021, and a schedule of out-of-pocket expenses as at 14 September 2023.

20. The plaintiff also gave some brief oral evidence, in particular about her income in recent times.

Factual background: the arrest and conviction of the defendant

21. Whilst liability is not in issue before me, judgment having been entered for the plaintiff by default, it is necessary to understand a little bit more of what happened at the time of the abuse and immediately following.

22. The contemporaneous documents provided by NSW Police show that the plaintiff told her father and mother on the day (23 December 1977) what had happened. They took her to Peakhurst Police Station where they spoke to the police. The next day they went back to Hurstville Police Station. Inside the week, both the plaintiff and her father had given detailed written statements, and the plaintiff had been taken to police headquarters in College Street where she had been examined by the Police Medical Officer.

23. On 12 January 1978, following an interview during which the defendant admitted putting his hands inside the plaintiff’s pants and touching her vagina on two occasions, in circumstances that mirror the first and second occasions pleaded in the statement of claim, the Police charged the defendant with indecent assault and common assault.

24. The records (the COPS and handwritten records) show that the defendant was sentenced in the District Court at Sydney on 14 April 1978 to a recognizance under section 558 of the Crimes Act 1900 to be of good behaviour for 3 years and fined $500 for the offence of indecently assaulting a female under the age of 16. The charge of indecent assault had been brought under section 76 of the Crimes Act. At the time, section 76 provided:

“Whosoever assaults any female and, at the time of, or immediately before or after such assault, commits any act of indecency upon or in the presence of such female, shall be liable to imprisonment for four years, or, if the female be under the age of sixteen years, to penal servitude for six years.”

25. The records (the COPS and handwritten records) also show that the lesser charge of assault under section 494 of the Crimes Act was dismissed in Kogarah Court of Petty Sessions on 9 May 1978 when there was no appearance by the defendant and no evidence was offered.

The plaintiff’s account of the abuse

26. The plaintiff set out her account of what happened on 23 December 1977 in her evidentiary statement dated 11 September 2023 (at paragraphs 15 to 23). It is not necessary for me to repeat that account. With one exception, it mirrors in material terms the facts asserted in the statement of claim which I have set out already. The exception is that in relation to the first occasion pleaded in the statement of claim the plaintiff said in her evidentiary statement (at paragraph 17) that the defendant penetrated her vagina with his fingers.

27. The account of events given by the plaintiff in her statement to the police (which I remind myself was at a time when she was 6 years old) also mirrors in material terms the facts asserted in the statement of claim concerning the first three occasions of alleged abuse. The fourth occasion of abuse referred to in the statement of claim is not referred to in the statement to the police.

28. Having regard to those matters, but also the fact that liability has been admitted by default and that the defendant has chosen not to appear or to challenge the plaintiff’s account, I find that the facts asserted in the statement of claim about what happened on 23 December 1977, which I have set out above, are true, and I proceed to assess damages on that basis.

Damages are to be assessed according to ordinary common law principles

29. Section 3B of the Civil Liability Act 2002 states that the provisions of the Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is “sexual assault” or “other sexual misconduct” committed by the person.

30. As I have mentioned, the defendant was charged with indecent assault, pleaded guilty and was sentenced for that offence. Undoubtedly that qualifies as “sexual assault” for the purposes of section 3B. That charge appears to have related to the first two occasions of abuse described in the statement of claim. In my opinion, the charge of indecent assault could have just as easily been made in relation to the other two occasions of abuse described in the statement of claim. If I am wrong about that, in my opinion, the other two occasions of abuse described in the statement of claim would certainly qualify as “other sexual misconduct”. In that regard see Withyman v State of NSW [2013] NSWCA 10 at [49]-[53] per Allsop P (Meagher & Ward JJA agreeing).

31. It follows that the Civil Liability Act 2002 does not apply to these proceedings because of section 3B, and damages are to be assessed according to ordinary common law principles.

The course the plaintiff’s life has taken since the abuse

32. The plaintiff is now 52 years old. In many ways her life has been a struggle.

33. She was raised by her paternal aunt and her husband until she was around seven months old, at which point her mother and father married and took her into their custody. She recalls growing up in a household where, on occasion, she and her mother would suffer physical abuse from her father.

34. While in year eight at high school she suffered from some anger related psychiatric issues resulting, she says from the abuse, and punched a teacher in the face. She was asked to see a school counsellor because of this who subsequently monitored her classes for months afterwards. Outbursts of anger and rage have continued into her adult life.

35. She experienced some bullying at school, as she was quite withdrawn and quiet. However the main stressor for her was anxiety. She experienced extreme anxiety when sitting tests and other examinations. Because of this, she felt she was unable to keep up with school and as a result, underachieved. She also struggled with friendships and had a strong sense that she was different from her peers. This led her to have feelings of isolation and loneliness.

36. After completing high school, she attended St George TAFE in Kogarah where she studied for and obtained a Customs Trade Practice Certificate.

37. In or around 1989, while she was attending TAFE, she began working for Qantas, in the cargo department. After completing her course she moved to the position of customs compiler/classifier. She remained in that position until 1993 before moving to the International airport to work for Qantas as a customer service agent, where she was able to reduce her weekly hours to approximately 20 – 25 hours per week.

38. She remained working as a customer service agent until 2001 when she developed a panic disorder, which she said was a result of her not being able to deal with the daily stress of the job.

39. From 2001 to 2003 she worked as a salesperson at Jacksons Rare Guitars.

40. From 2005 to 2018 she worked for Woolworths as a Customs coordinator/Logistics operator.

41. She has also held occasional employment as a musician and guitar teacher intermittently since about 1989. She has played part-time in a band on and off since 2019. She receives some income from playing in the band. Since 2019 she has had only one regular student. She gives the student a guitar lesson via video link once a fortnight for one hour. Her income from playing in the band and giving guitar lessons varies. Year-on-year since 2019 it has fluctuated between $5000 and $8000 a year.

42. Otherwise, the plaintiff has not worked since leaving Woolworths in 2018.

43. The plaintiff says that she first experienced issues with her psychiatric state at around the age of 13 when she had her first thoughts of suicide. From this time, the emotional pain she felt became more conscious. She didn’t want to wake up in the mornings because she felt scared all the time for no apparent reason and felt she could not cope with life and its demands.

44. From around age 14 she began committing acts of self-harm by hitting herself. She continues to do this. She describes these as outbursts of rage which have led to several admissions to St John of God Hospital, Burwood for psychiatric treatment.

45. When she was 19 years old, which would have been sometime after March 1990, her father died. Following this, she attended a psychologist for the first time and was diagnosed with generalised anxiety disorder. She saw various therapists throughout her 20s, 30s and 40s to deal with unrelenting feelings of despair, suicidality and dread. She was first prescribed antidepressant medication in her early 20s. She began experiencing panic attacks about the age of 29 which led her to have cognitive behavioural treatment for a panic disorder at St Vincent’s Hospital. These attacks led her to resign from her job at Qantas. At the time she also had a part-time career as a musician, however, this was also disrupted due to the attacks, chronic performance anxiety and repeated occurrence of various physical illnesses.

46. In around 2004 she became heavily depressed whilst dealing with domestic violence in a relationship.

47. In 2012 she had a complete mental breakdown that resulted in two separate psychiatric admissions that year. She was formally diagnosed with chronic post-traumatic stress disorder and major depressive disorder. It took 18 months for her to return to her job full-time. As a result, she was “performance managed” extensively at work and bullied by her co-workers. Due to cognitive decline, feelings of isolation and persistent mental health symptoms, she reluctantly resigned from Woolworths in 2018. She has not been able to sustain any employment since.

48. In around 2018, while she was in the care of Bankstown Community Mental Health Service for trauma therapy, she was diagnosed with borderline personality traits and obsessional and perfectionistic traits. At this time she underwent “EMDR therapy”, which I understand to be eye movement desensitization and reprocessing therapy.

49. She has been seeing her psychiatrist, Dr Tam Luu, and her psychologist, Dr Bob Tsapilis, for approximately 10 years now to assist with her mental health and continued relationship difficulties. Under Dr Luu, she has had several psychiatric admissions during this time for continued management, treatment and medication adjustments. The plaintiff says the admissions themselves have been extremely challenging, disruptive and traumatic. The records of St John of God Hospital show that the plaintiff was admitted from 23 July to 31 August 2012; from 20 November to 24 December 2012; from 27 April to 25 May 2015; from 5 to 29 March 2018; from 2 October to 8 November 2019; and from 16 June to 30 June 2022.

50. On 26 July 2022 she saw Dr Geoff McDonald, psychiatrist, by video link for an assessment for the purposes of this claim. She believes the history she gave Dr McDonald is true and correct.

51. There are in the court book about 13 reports from the plaintiff’s treating psychiatrist, Dr Luu, to her GP. Most of these are short reports about changes in the plaintiff’s medication. The longest, and first, report is dated 20 March 2012. At that time the plaintiff was referred to Dr Luu for a medication review pending her entry into a group cognitive behaviour therapy course for anxiety disorders.

Medico-legal report of Dr Geoff McDonald, consultant psychiatrist

52. Dr McDonald provided a detailed report to the plaintiff’s solicitors on 3 August 2022 having reviewed the clinical notes of Dr Tsapalis and Dr Luu, the subpoenaed documents from New South Wales Police, the statement of claim and statement of particulars and having interviewed the plaintiff by video link. The report runs to 16 pages. I refer to some of what I consider to be the most significant aspects of it.

53. The plaintiff told Dr McDonald that her initial memories of the events of 23 December 1977 became repressed and that they resurfaced in about 2019, after regular psychotherapy of about six or seven years duration. She told Dr McDonald she had lifelong experienced some visual flashbacks of being naked with the alleged perpetrator in his apartment and sitting on his lap in the car, with her genitals being touched. When the memories resurfaced, she found this emotionally “overwhelming and upsetting” and she worked through this nexus between memory and emotional response with her psychologist. More details gradually emerged to her conscious memory.

52. She told Dr McDonald that she lived with her partner of five years, whom she married in 2021; that she lives in the home which her partner owns and she pays rent. Her partner was at that time 62 and retired and lives off her investments and financially helps to support the plaintiff.

53. Under the heading ‘social history”, Dr McDonald recorded that the plaintiff was born to her mother Theresa who worked for 40 years as a barmaid and her father Kenneth who was a New South Wales Police Force detective. Her father had previously been married, and his pregnancy with Theresa was unplanned, and initially the plaintiff was raised by paternal aunt to the age of eight months. The plaintiff has an older half brother and older half sister from her father’s previous marriage. Her parents assumed her care when they married, when she was eight months old. The plaintiff expressed the opinion that her father felt “obligated” to marry her mother. The plaintiff described a difficult childhood with bidirectional violence and emotional abuse between her two parents. The father was alcoholic and manifested drunken rages. She suffered violence at his hands, for instance she recalled at age 7 being ill, vomiting on the carpet and being beaten by him uncontrollably. She attributed her long-term fear of vomiting to this incident. Her father also manifested periodic ostracism towards her. She stated that her mother was generally loving and supportive, however their relationship deteriorated after the death of her father when she was 19 years old. She stated that her mother became “dependent upon me emotionally and was very isolated”. Her mother is now deceased.

54. Dr McDonald diagnosed the plaintiff as having complex post traumatic stress disorder; recurrent major depressive episodes (in partial remission); cannabis dependence (in remission); nicotine dependence; borderline personality traits. He noted that she had alleged sexual assault age 6; developmental trauma, involving domestic violence between her parents and suffering violent rages from her alcoholic father; insecure attachment style, recent hospital admission to facilitate switch of antidepressants.

55. He stated that the features in the plaintiff’s history consistent with PTSD include alleged sexual assault age 6, suffering and witnessing violence at home as a child, worry, panic, hypervigilance, retrieval of long suppressed memories causing emotional distress, and visual flashbacks. Features consistent with relapsing depression include periodical low mood since age 13, intermittent vegetative features, recurrent suicidal ideation and intermittent depressed cognitive perspective. Regarding the cannabis, he noted that she was dependent aged 28 to 41 and that she has been nicotine dependent all her adult years. Regarding the borderline personality traits, this was diagnosed about 2018. She manifests characteristic features such as emotional dysregulation, insecure attachment. She has a history of deliberate self-harm and describes a recurrent pattern of relationship dysfunction.

Causation

58. In answer to specific questions posed by the plaintiff’s solicitor, Dr McDonald said that it is possible that the plaintiff had PTSD prior to the alleged assault age 6, related to witnessing domestic violence between her parents and suffering violence and from her father who was alcoholic. Further, being transferred from the care of her paternal aunt to her biological parents at age 8 months probably predisposed her to attachment insecurity and borderline personality traits. Dr McDonald stated that it is impossible to be certain whether the plaintiff had PTSD prior to the alleged assault at age 6. He then went on to say:

“In my opinion, the violence at home has been a significant contributor to her long-term complex PTSD. It is impossible to precisely disentangle the relative contributions of domestic violence at home from the alleged assault at age 6 to her resultant complex PTSD. I would very roughly estimate that each has contributed approximately 50%.”

59. And subsequently:

“In my opinion, the alleged assault at age 6 is roughly contributed about 50% to Ms Brown’s complex post-traumatic stress disorder (citing DSM V 5^th edition at pages 271 – 280) and has also been a likely contributor to her recurrent major depressive episodes from age 13 onwards, also very roughly estimated at 50% contribution (citing 2 academic papers).”

Prognosis

60. As to the future, in the assessment of Dr McDonald, the complex post- traumatic stress disorder will not be cured, however the manifestations and symptoms are being managed much more successfully over the last few years than previously and he would be hopeful that reasonable symptom stabilisation can occur in the years to come.

61. On the question of her earning capacity, based on what he understood to be the employment history of working about five hours per week at the time of his interview, Dr McDonald was of the opinion that she was likely to be able to continue to work to that level but that “it appears unlikely that she will ever regain the capacity to work full-time”. He thought it unlikely that the plaintiff will ever work significantly more than what was then her current five hours per week.

62. As for future treatment, in the opinion of Dr McDonald, the plaintiff warrants ongoing regular supportive psychotherapy with a trusted psychologist on about a fortnightly basis for the next two years (as at the date of his report, which was 26 July 2022) and monthly thereafter, the approximate cost of which would be $250 per hour. In his opinion, the plaintiff also warrants regular monthly consultations with her psychiatrist for about the next 12 months (as at the date of his report, which was 26 July 2022), followed by three monthly thereafter, with the approximate cost being $450 per hour.

63. Dr McDonald concluded with the general comment that:

“Ms Brown’s prognosis for successful long-term management of the complex PTSD and relapsing depression is excellent. She no longer has any drug and alcohol problem, she has gratifying interests, she has part-time work, she has good plans, she has a supportive and loving relationship and as a trusted treatment team.”

64. I have no reason to doubt Dr McDonald and accept what he has said and the opinions he has expressed.

More about the plaintiff’s present circumstances and the effects of the abuse from her point of view

65. The plaintiff’s evidence is that she has suffered because of the abuse from the defendant every day since it occurred. That day, she believes, her childhood innocence was taken from her. Ever since, she has carried the lingering dark secret which replaced the joy of being a child and any pleasant memories. She has felt afraid every day since.

66. After the abuse, the plaintiff felt guilty of what had happened. She had been the one to agree to sit on the defendant’s lap and be picked up by him. Even after extensive psychotherapy the plaintiff’s still does not recall the exact details of how she ended up the defendant’s apartment, and so blames herself for being there. She has carried a terrible sense of shame since. She believes she was too young to apply reason to the situation, however, but even as an adult she still feels so ashamed. Underneath all of that she also feels anger that she was violated at such a young age, but she feels unable to express it or cry any tears to this day. Instead, she feels that the rage and sadness slowly seep into every area of her life, because she is still not healed – in spite of trying. In her view, these proceedings are more about her trying another way to truly process what happened that therapy has not been able to achieve so far. She says she desperately wants to heal and move on.

67. She believes also that her father experienced terrible guilt about what had happened. It is clear from the documents produced by NSW Police that the plaintiff’s father was at home at the time the abuse occurred and that he took the matter seriously. It must also be remembered that according to the social history given by the plaintiff to Dr McDonald, the plaintiff’s father was himself a police detective although according to the plaintiff’s evidentiary statement he had recently retired. Those facts may well explain why it was that three detectives investigated the complaint and were involved in bringing charges against the defendant. It seems only natural that such a father would feel terrible guilt about being unable to protect his six-year-old daughter. In any event, from the plaintiff’s point of view, she believes that this guilt may have fuelled the escalation of her father’s abuse of alcohol, which led to his rages and increased physical violence. The plaintiff recalls hearing repeated arguments, even years later, between her parents about what had happened to her. She interpreted this to be her fault.

68. The plaintiff believes that the assault has caused her to have significant issues trusting men. It has also caused her to feel a lot of confusion with regard to her sexual orientation which in turn created a barrier to having children. She wanted to be a mother very much and this remains one of the greatest disappointments of her life. Her relationships with both men and women have been too unstable for her to consider bringing a child into the world, and nor does she feel emotionally capable of raising a healthy person.

69. The plaintiff says that she has trouble dealing with her emotions, which leads to occasional flareups of anger, distress, self-harm, and suicidality. She has suffered terrible nightmares and fractured flashbacks of the assault for 45 years.

70. The plaintiff says she suffers a significant fear of abandonment in the context of her relationships which causes her to develop an insecure attachment. She has serious trust issues in both intimate relationships and friendships, which makes her feel disconnected from others and therefore isolated and lonely.

71. As an adult the plaintiff says that she is constantly worried about her health and safety and has been in an unrelenting state of hypervigilance over the last 45 years. Regardless of all the years of treatment and therapy she still finds herself in darkness too often. Robbed of joy, afraid, unsettled and hopeless.

72. She says that the abuse has caused her to have issues with physical and emotional intimacy and she associates being intimate with shame.

73. The panic attacks she began to experience from around the age of 29 were completely debilitating and happened whilst at work, and public transport and on stage was playing live music.

74. Whilst she did work at both Qantas and Woolworths for 13 years each, she took regular and at times, extensive, sick leave whilst employed due to her poor mental and physical health. This led to discrimination and bullying, along with limited opportunities for promotion.

75. The plaintiff feels that the abuse has affected everything in her life and since the abuse her life has become about survival, and jumping at shadows.

76. In his report, Dr McDonald records that when the plaintiff’s memories of the abuse resurfaced in about 2019 after regular psychotherapy of about six or seven years, she found this emotionally overwhelming and upsetting. This is borne out in the clinical notes of her treating psychologist Dr Bob Tsapilis – see entries for 2 July 2019, 18 July 2019,, 3 November 2021, 25 March 2021, 4 August 2021, 22 April 2021, 3 June 2021, 17 June 2021, 22 August 2019, 22 March 2022.

77. I accept the plaintiff’s evidence about the present circumstances and the effects of the abuse from her point of view, which I have summarised in the preceding paragraphs.

DAMAGES

78. With that factual background, I move to the plaintiff’s submissions about the assessment of damages.

79. Before going to the plaintiff’s submissions about particular heads of damage I need to address one question of general principle that arises from the fact that Dr McDonald is of the opinion, which I accept, that the plaintiff’s complex post traumatic stress disorder and recurrent major depressive episodes from age 13 onwards have 2 independent causes from a psychiatric point of view, which in summary he referred to as the alleged assault at age 6 and the domestic violence at home.

80. In oral submissions counsel for the plaintiff, quite properly, submitted that I must take this evidence into account and reduce what might otherwise be the full measure of the plaintiff’s loss. Counsel submitted that because the evidence was before the court, I must act upon it and the onus on a defendant to seek to disentangle separate causes of ongoing disability discussed in cases such as Purkess v Crittenden (1965) 114 CLR 164 and Watts v Rake (1960) 108 CLR 158 did not apply.

81. Counsel for the plaintiff submitted that I might reduce the plaintiff’s damages by a factor of between 30% and 50% having regard to Dr McDonald’s opinion and all of the evidence before me.

82. It seems to me that the general principle I must apply is stated in “Assessment of Damages for Personal Injury and Death” (5^th edition, 2021 by Luntz and Harder) at paragraph [2.5.2] page 378 as follows:

“… where, although there was a fair chance that some precipitating cause other than the defendant’s act would have brought the plaintiff to the same state, this would not necessarily have occurred, the court must evaluate that chance and discount the damages accordingly.”

83. One of the cases cited for that proposition is the judgment of Barwick CJ in Wilson v Peisley (1975) 7 ALR 571, (1975) 50 ALJR 207. The facts in that case were that the respondent had suffered personal injuries in a car accident and the injuries she suffered included a very rare and serious psychosomatic illness, involving various physical afflictions including massive bleeding. The trial judge had allowed for the possibility that the respondent’s condition might have been precipitated by some other event in the ordinary course of her life.

84. Barwick CJ said (7 ALR at 574) that whilst the respondent’s pre-existing condition afforded no answer in point of liability it must be placed in the scales when deciding what sum should be awarded for what the appellant had caused. His Honour went on:

“The trauma of the accident for which the appellant was responsible no doubt made a present reality of that which was ever a real possibility. Thus, whilst the appellant must pay for bringing out that condition, what he must pay must, in my opinion, justly reflect the fact that that condition was not merely latent in the respondent but that events, not of an unusual or unlikely kind, could and might in the ordinary course of life have evoked that condition had not the appellant's negligence intervened. The judge included this possibility in the vicissitudes of life which he was bound to bring to account in connection with the assessment of economic loss. In my opinion, he was not in error in so doing. No question arises in this case as in such cases as Watts v Rake (1960) 108 CLR 158 ; [1961] ALR 333 , and Purkess v Crittenden (1965) 114 CLR 164 ; [1966] ALR 98 , as to onus of proof. The existence of pre-existing condition and of its propensity for harm to the respondent was fully made out.”

His Honour returned to the general principle and said (7 ALR at 576-577):

“It is apposite to point out at this point that the award is made between a plaintiff and a defendant. It is not simply a case of compensating the plaintiff for the injured condition without consideration of the potentiality of the pre-existing situation. In a case such as the present, the claim of the defendant to a just consideration of the likely results of that pre-existing condition, as reducing to its proper proportion the damages he should pay for what he has caused, is an important element in assessment. It was for the judge to decide what were the chances of the respondent's pre-existing condition having brought her psychological harm in the future in the ordinary pursuit of her life, and at what level those chances should be evaluated in making an award against the appellant.”

85. It seems to me that these are principles that Cavanagh J applied when assessing damages for sexual abuse in SR v Trustees of the De La Salle Brothers [2023] NSWSC 66, when his Honour said (at [237]), dealing with the claim for past loss of income:

“The proper approach of the assessment of damages in circumstances where a psychiatric illness is caused by a number of factors, including the tortfeasor’s conduct, is to discount to the extent that the other factors have contributed to the illness. This reflects the likelihood that the plaintiff’s mental health problems arising from non-compensable factors were such that, even the Royal Commission bringing everything back to him, he would have experienced those personal difficulties emphasised in the records of the GP and psychologist. I will allow a 50% discount.”

The plaintiff generally

86. The plaintiff was born in 1977. She is now 52 years of age. According to the Australian Life Tables 2015-2017, a 52 female has a life expectancy of 34.27 years.

General and aggravated damages

87. General damages are awarded for pain and suffering, loss of amenity of life, loss of expectation of life and the like.

88. Chen J summarised the relevant principles about aggravated damages in AA v PD [2022] NSWSC 1039 at [126]-[127] as follows:

126. Aggravated damages are a form of general damages, given by way of compensation for injury to the plaintiff, which may be intangible, resulting from the circumstances and manner of the wrongdoing: State of New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57 at [31] (Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ). They are awarded for injury to the plaintiff’s feelings caused by insult, humiliation and the like: Lamb v Cotogno (1987) 164 CLR 1 at 8 (Mason CJ, Brennan, Deane, Dawson and Gaudron JJ); [1987] HCA 47. That is, they are awarded when the harm done by the wrongful act was aggravated by the manner in which the act was done: Uren v John Fairfax (1966) 117 CLR 118; [1966] HCA 40; State of New South Wales v Abed [2014] NSWCA 419 at [231] (Gleeson JA, Bathurst CJ and Macfarlan JA agreeing). The entitlement to aggravated damages therefore turns upon establishment of these elements.

127. In order to secure an award of aggravated damages, typically (but not invariably) there must be “conscious wrongdoing in contumelious disregard of another’s rights”: Gray v Motor Accidents Commission (1998) 196 CLR 1; [1998] HCA 70 at [14] (Gleeson CJ, McHugh, Gummow and Hayne JJ). In State of NSW v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208 at [138] (Hodgson JA, Sheller JA and Nicholas J agreeing) (‘Riley’), explained that whilst the presence of malice was not essential to ground an award of aggravated damages, and gave some guidance on the character of the defendant’s wrongful conduct necessary to support such an award:

“Conduct may be high-handed, outrageous, and show contempt for the rights of others, even if it is not malicious or even conscious wrong-doing. However, ordinarily conduct attracting exemplary damages will be of this general nature, and the conduct must be such that an award of compensatory damages does not sufficiently express the court’s disapproval ..

89. In SR v Trustees of the De La Salle Brothers [2023] NSWSC 66, Cavanagh J adopted that summary and added, at [203] omitting citations:

The plaintiff submits that I should make one award of general and aggravated damages. This is to avoid double-counting, as aggravated damages are awarded for hurt feelings caused by insult, humiliation and the like. They may be awarded when the harm done by the wrongful act was aggravated by the manner in which the act was done.

90. The plaintiff submits that bearing in mind the level of abuse and the effect that it has had on the entire life of the plaintiff, an assessment of general damages in the sum of $300,000 is appropriate. Whilst pointing out that each matter turns on its own facts, counsel for the plaintiff provided me with a list of sexual abuse cases that have come to judgment and included assessments for general damages. As I understand it from oral submissions, this figure does not take account of the causation issue that emerges from Dr McDonald’s opinions.

90. It is clear that the abuse has had a major adverse impact on the life of the plaintiff and her state of mental health since the age of six, whether she was aware of it at the time or not. In more recent years, particularly since 2019 as her memories resurfaced its impact has become more obvious, if not more severe. I must also take into account however that there have been many other stressors in the plaintiff’s life and chief among them is the domestic violence she encountered at an early age that is described by Dr McDonald.

91. I must also take into account the age disparity between the plaintiff and the defendant at the time of the abuse, what I find to be the conscious wrongdoing of the defendant and the contempt he showed for a six-year-old girl.

92. Having regard to those matters in particular, but the evidence as a whole, in my opinion the appropriate sum for both general and aggravated damages is $225,000.

93. As explained by Chen J in AA v PD [2022] NSWSC 1039 at [100], the plaintiff is entitled to interest on this amount in accordance with MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657 at 663-664 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ); [1991] HCA 3; Metropolitan Meat Industry Board v Williams (1991) 24 NSWLR 54 at 58-59 (Samuels AP, Mahoney JA and Hunt AJA).

94. For the purposes of calculating interest, and bearing in mind that the events occurred 46 years ago and that the plaintiff has a life expectancy of around 34 years, I allocate 60%, or $135,000, of those damages to the past.

95. The plaintiff is entitled to interest at 2% on that sum for the whole period.

96. On that basis I allow interest on past general damages in the sum of $124,200, which is calculated as 2% of $135,000 times 46 years.

97. The total I allow for general and aggravated damages is therefore $349,200.

Exemplary damages

99. The plaintiff sought exemplary damages in her statement of claim, although they were not pressed for heavily by Mr Royle in submissions. I believe that was for good reason, because in my opinion exemplary damages are not available to the plaintiff in light of the fact that the defendant was charged and sentenced in a criminal court in relation to the same conduct.

100. There is no need for me to discuss the relevant legal principles. They were stated in Gray v Motor Accident Commission (1998) 196 CLR 1, particularly at [40]-[46] per Gleeson CJ, McHugh, Gummow and Hayne JJ, and applied in Cheng v Farjudi (2016) 93 NSWLR 95, particularly at [105] where Beazley P said, Ward JA and Harrison J agreeing, that she was not prepared to find that a conviction recorded and the imposition of a bond was not a substantial penalty. Nor am I.

Past economic loss

101. As I have mentioned, whilst the plaintiff did work at both Qantas and Woolworths for 13 years each, she took regular and at times, extensive, sick leave whilst employed due to her poor mental and physical health. This led to discrimination and bullying, along with limited opportunities for promotion. Further she left work for Qantas in 2001 when she developed a panic disorder, which she said was a result of her not being able to deal with the strict daily stress of the job.

102. Other than earning some income of between $5000 and $8000 a year since 2019, the plaintiff has not worked since leaving Woolworths in 2018. The midpoint of those two figures is $6500.

103. Dr McDonald was of the opinion that the plaintiff is likely to be able to continue to work to that level but that it is unlikely she will ever work significantly more than that.

104. The schedule of employment (Exhibit C) shows that the plaintiff was in steady employment until 2018 when she left Woolworths, except for the years 2004 and 2005, but with some fluctuations up and down in the level of her income notwithstanding the fact that for many of those years she was working for the same employer.

105. Having regard to those matters when coupled with the medical and life history of the plaintiff set forth in the report of Dr McDonald, I find that the plaintiff did have a reduced earning capacity up to the time she left Woolworths in 2018. However, on the evidence before me, and perhaps on any view, it is very difficult to calculate that loss in money terms. Notwithstanding that it is unusual to do so, in those circumstances in my opinion it is appropriate to allow the plaintiff a buffer of $50,000 for past economic loss up to that time.

106. Thereafter the position is more straightforward. I accept that the plaintiff has been unable to work since leaving Woolworths in 2018 and is unlikely to be able to work again except and to the limited extent she has been working as a musician and giving guitar lessons, and that inability to work or loss of capacity to earn has been caused by her ongoing complex post-traumatic stress syndrome and recurrent major depressive episodes.

107. The plaintiff submits that for the years ending 2019 to 2023 (5 years) the plaintiff has been unemployable save for five hours per week. Assuming residual capacity of $6500 per year, then her past loss of earning capacity from 2018 to date would be calculated as $55,000 (being about the amount she was last earning at Woolworths) loss of capacity per year, less $6500, that is to say $45,500 by 5 years, giving a total loss for that period of $242,500. I accept those submissions and figures, however in my opinion it is appropriate to reduce that sum by 50%. I say that because according to the general principles I discussed earlier it is necessary to make some discount to account for the other major cause of the plaintiff’s psychiatric illnesses. Although counsel for the plaintiff impressed upon me the idea of making a smaller adjustment, I see no reason to reject or qualify Dr McDonald’s opinion that the assault at age 6 and its consequences have made a 50% contribution to the plaintiff’s complex post-traumatic stress disorder and recurrent major depressive episodes. That reduces the amount I allow for the years ending 2019 to 2023 to the sum of $121,225.

108. The plaintiff claims loss of superannuation for the period 2019 to 2023 at 11% of the net loss. I accept that submission. On that basis I allow a further sum of $13,334 in respect of past superannuation.

109. The total I allow for past economic loss is therefore $184,559.

Future economic loss

110. The plaintiff claims future economic loss based on a loss of earning capacity in the sum of $60,000 (increased from $55,000 at 2018) less $6500 residual capacity, giving a starting point for calculation of $53,500 per year or $1029 per week. I accept those figures.

111. On the basis that the plaintiff will turn 53 in March next year and assuming she would have worked until retirement at age 67, I would allow a period of 14 years. The multiplier for the present value of $1 dollar per week for 14 years on the 3% tables is 598.2.

112. On those figures the plaintiff’s future economic loss would be $1029 times 598.2, giving $615,547. Ordinarily that figure would be reduced by 15% to account for the vicissitudes. In my opinion, for the reasons I have already given, the appropriate reduction is 50%. On that basis, I allow $307,773 for future economic loss.

113. The plaintiff claims loss of superannuation and future economic loss at 11% of the net loss. I accept that she is entitled to do so. I therefore allow 11% of that sum, i.e. 11% of $307,773 for future loss of superannuation. The resulting figure is $33,855.

114. The total I allow for future economic loss is therefore $341,628.

Past out-of-pocket expenses

115. In her statement of particulars, the plaintiff claimed out it out-of-pocket expenses for the cost of all past treatment expenses including hospitalisation periods, ambulance expenses, GP/specialist visits, medications and therapies.

116. The evidence before me demonstrates that the plaintiff has had many periods of hospitalisation and treatment in the past and undoubtedly expenses have been incurred for these.

117. It seems to me that the only place in the evidence where the amount of expense incurred is set out is in the schedule of out-of-pocket expenses which became Exhibit D. That shows that the HCF private health fund paid sums totalling $71,358 and Victims Services NSW sums totalling $10,000. To put it mildly, this evidence appears to me to be a little thin. However, having regard to the fact, as I’ve said, that the plaintiff has undoubtedly received a great deal of medical treatment and services over a great many years, it is appropriate to have regard to a figure of $80,000 for past out-of-pocket expenses. Again though, for the reasons I have already given, I would discount that figure by 50%.

118. I therefore allow $40,000 for past out-of-pocket expenses.

Future out-of-pocket expenses

119. I have accepted Dr McDonald’s evidence about the need for and cost of ongoing treatment by a psychologist and psychiatrist.

120. Based on that evidence the plaintiff calculates that the plaintiff is entitled to the total sum of $63,211 for future treatment by the psychologist and $106,861.04 the psychiatrist. I would round those figures down to $60,000 and $100,000 respectively to account for the fact that Dr McDonald gave his report almost 18 months ago. In my opinion, for the reasons I have already given, it is appropriate to reduce those figures by 50%.

121. On that basis I allow $80,000 for future out-of-pocket expenses.

Summary of damages

122. In summary, I have found that the plaintiff is entitled to damages as follows:

General and aggravated damages	$349,200
Past economic loss	$184,559
Future economic loss	$341,628
Past out-of-pocket expenses	$40,000
Future out-of-pocket expenses	$80,000
TOTAL	$995,387

Orders

123. For those reasons I make the following orders:

1. Judgment for the plaintiff in the sum of $995,387.

2. The defendant is to pay the plaintiff’s costs.

Decision last updated: 15 December 2023