CGS v CS - [2012] SADC 128

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
CGS v CS
[2012] SADC 128
Judgment of His Honour Judge Stretton
7 September 2012
DAMAGES - PARTICULAR AWARDS OF GENERAL DAMAGES - SOUTH AUSTRALIA - GENERALLY
TORTS - TRESPASS - TRESPASS TO THE PERSON - ACTION FOR DAMAGES
The plaintiff claimed that the defendant indecently assaulted her when she was 8, some 14 years prior to trial. The defendant denied the assault, denied the plaintiff suffered any injury, damage or loss and claimed that if she did suffer any she failed to mitigate her loss by failing to seek treatment for her claimed psychological injury. The defendant had in various forums admitted the indecent assault.
Held: The defendant indecently assaulted the plaintiff. The plaintiff suffered injury, loss and damage as a result. Her childhood, schooling and social life was significantly affected, as is her future earning capacity and her future capacity to participate normally in life, in particular her capacity to form intimate relationships with members of the opposite sex and consequently have children and enjoy the potential full family life otherwise likely to have been available to her. She had not undertaken recommended psychological therapy to address her condition, however medical practitioners reported that although such treatment was objectively recommended, they did not think she would be able to undertake or complete it as it would necessarily involve re-living the trauma of the assault. Further, it was the very anxiety related condition caused by the defendant's assault on her that was preventing her from being able to undertake the treatment. In the totality of those circumstances, it was not unreasonable for her not to have undertaken the treatment and there accordingly had been no failure to mitigate loss.
Judgment for the plaintiff in the sum of $317,500.
Evidence Act 1929 s 34A, referred to.
Edwards v Olsen (2003) LSJS 317; Minogue v Human Rights Commission (1999) 84 FCR 438; Cheatle v DPP [1999] SASCFC S3452; In the Marriage of F (2001) 161 FLR 189; Briginshaw v Briginshaw (1938) 60 CLR 336; Whitlam v ASIC [2003] NSWCA 183; ASIC v Hellicar & Ors [2012] HCA 17; Goldsborough v O'Neill (1996) 131 FLR 104; Glavonjic v Foster [1979] VR 536; City of Prospect v Jaspers [2010] SASCFC 85, considered.

CGS v CS
[2012] SADC 128
The claim

The plaintiff in this matter alleges that at the age of 8 she was sexually assaulted by the defendant. She claims that she has suffered and will continue to suffer psychiatric and psychological injuries, loss and damage as a result. She also claims that the assault has impacted her education and employment prospects.
Background to the proceedings
The plaintiff is now 21. The defendant is 77.
There is no dispute that on 4 November 1998 the plaintiff was an 8 year old girl living with her mother and brother in Murray Bridge. At that time the defendant was a 63 year old man living next door with his then partner Ms M, together with two children he had had with a former partner. Prior to that, the defendant had had 11 other children with his wife, from whom he had separated.
The two families had got to know each other over a period of months, and one of the defendant’s children was a daughter of similar age to the plaintiff. The plaintiff and the defendant’s daughter had become friends and would play with each other. Every now and then the plaintiff’s mother would ask the defendant to pick the plaintiff up from school for her, and as at 4 November 1998 this had occurred on several occasions. On each of those prior occasions the defendant would take Ms M and his own two children with him to do so.
On 4 November 1998 the plaintiff’s mother asked the defendant to pick up the plaintiff from school. The arrangement was that the plaintiff would be brought back to the defendant’s house, and the plaintiff’s mother would collect her from there later. The defendant picked the plaintiff up from school in accordance with the request. On this occasion however the defendant went alone to pick up the plaintiff, and instead of taking her directly home the defendant took her to a shed on his market gardening property, where they remained for a period of time.
Ms M became concerned that the defendant had not brought the plaintiff home as expected and rang the shed. A little while later the defendant brought the plaintiff back to his house where Ms M was waiting. The plaintiff then played with the defendant’s daughter but confided to her that the defendant had touched her. The defendant’s daughter told Ms M, who passed the information on to the plaintiff’s mother as soon as she arrived to pick the plaintiff up. The plaintiff’s mother immediately took the plaintiff to the police.
The police arrested and charged the defendant. The defendant pled guilty in the District Court to indecently assaulting the plaintiff. He was convicted and sentenced to two years imprisonment with a non parole period of 9 months.
The plaintiff commenced this civil action in April 2011. The defendant filed a defence in May 2011, certified by his solicitor as complying with his instructions, and settled by senior counsel, admitting the indecent assault. Whilst denying some particulars, he specifically admitted indecently touching the plaintiff.
The defendant however now denies any indecent assault, any indecent touching, that the plaintiff has suffered any damage injury or loss, and says that if any damage, injury or loss has been suffered, that it has nothing to do with him. He also says she has failed to mitigate her loss by not undertaking available psychological treatment.
The defendant was unrepresented at trial
The defendant was initially legally represented. After the close of pleadings and after the settlement conference, and at about the time the matter was referred to a listing conference, he ceased to instruct lawyers and decided to represent himself.
The defendant attended the outset of the trial unrepresented. He said he did not want a lawyer because he could not afford it. The court encouraged the defendant to reconsider that position, however he insisted that he could not afford it and therefore did not want a lawyer.
The court therefore endeavoured to assist the defendant, mindful of the nature of the case and the defendant’s intelligence and understanding of it,[1] mindful of the importance of remaining neutral,[2] mindful that it is for the parties to decide how to run their cases,[3] and applying the guidelines recognised by courts over time as necessary for a fair trial where a party is unrepresented.[4]
[1] Edwards v Olsen (2003) LSJS 317.
[2] Minogue v Human Rights Commission (1999) 84 FCR 438.
[3] Cheatle v DPP [1999] SASCFC S3452.
[4] In the Marriage of F (2001) 161 FLR 189.
After the examination in chief of the plaintiff, the defendant changed his mind and decided he wanted legal representation. He was granted an adjournment to obtain legal representation.
When the matter resumed the defendant appeared with new lawyers, who had been instructed to apply for an adjournment. The court indicated it would allow a further adjournment to enable representation for the trial, so long as the defendant could assure the court that he would in fact instruct lawyers to act for him at trial. The court adjourned for the defendant to confer with his new lawyers about this.
When the court reconvened the defendant told the court that he had now changed his mind again and decided not to instruct lawyers, that lawyers charge too much, that he could not afford lawyers, and that he had again decided to represent himself.
The defendant said variously, at that time, later in evidence and on an application by the plaintiff during the latter stages of the trial, that he owns or has a substantial interest in four properties, but that they were his and were going to be left to his children although one might be sold to a developer if he got a good enough offer.
The essence of the defendant’s position was, in reality, that he regarded legal representation as too expensive and he was just not prepared to pay for it.
Application to amend the defence at trial
At the start of the trial the defendant took the position that he had never done anything wrong with the plaintiff, and in particular that he had never done any of the things to her that were alleged in the statement of claim.
Mindful of his unrepresented status, the court took this as an application to amend the defence to deny the claim in its entirety, and possibly apply for an adjournment for this purpose. Ultimately, in the light of the defendant’s admissions and plea of guilty in the criminal court, his formal admissions in his defence to this court of an indecent assault, and specific admissions in his defence to some (but not all) of the alleged conduct said to constitute the indecent assault, all while represented by apparently competent solicitors and counsel, and that no application had been made to amend the defence at any of the appropriate times pursuant to the Rules of Court, the court did not allow a formal amendment.
In an abundance of caution, and as many of the particulars of assault were denied in the defence, and as an assessment of the seriousness of the alleged assault is necessary in any event, and that injury loss and damage as a result of any assault had always been denied, the court ruled that the assault itself and the nature and extent of the alleged assault would remain an issue at trial.
Did the assault occur?
The plaintiff gave evidence that the defendant indecently assaulted her on 4 November 1998.
She said that on that day he picked her up from school but instead of taking her home he took her straight to the shed on his market garden, where they started to watch television. She said he told her to take her pants and underwear off, whereupon he told her to hop on top of him. She said the plaintiff then started touching her bottom, undid his pants and rubbed his penis against her vagina. She could not remember now whether it was erect. The next thing she remembered was the defendant taking her home to the defendant’s house.[5] As soon as she got there she told the defendant’s daughter what the plaintiff had done to her. She said she was scared because of what had happened in the shed.[6]
[5] T37-38.
[6] T39.
There were delays in a medical examination, as the plaintiff’s mother had to take her to Flinders Medical Centre, then further delays as the plaintiff did not want to be examined by a male doctor, and accordingly she had to return on a later occasion when a female doctor was available.
The court closely scrutinized her evidence, particularly as there was no formally corroborating material located by police at the time. She gave her evidence in a straightforward and matter of fact way. She became shy and upset at describing the assault on her itself. That had the ring of truth about it. Her presentation seemed genuine and she gave evidence well. She came across as a credible and reliable witness.
The court could detect no apparent motive for the plaintiff to have fabricated the allegations she made in 1998; the plaintiff was the defendant’s next door neighbour, got on well with him, as well as with his two children that lived there.
The plaintiff’s allegations did not go as far as particularized in her statement of claim; in particular the statement of claim alleges that the defendant digitally penetrated the plaintiff. The court accordingly raised with the plaintiff whether there was penetration and she said that no she did not think that happened.[7] There is some clue in the police materials as to how this pleading may have come about. The detailed summary of the plaintiff’s allegations to police at page 39 of the apprehension report[8] compiled by police is consistent with what the plaintiff told the court that no penetration occurred, albeit with more detail, having been taken in 1998 contemporaneously with events. The two-line police summary at the start of the report, page 32, however, appears to wrongly summarise these events as “he digitally raped her and stroked his penis over her vagina”, which is not an accurate summary of what she is recorded as saying in the more detailed body of the report. It may be that the pleading alleging penetration was derived from this inaccurate part of the document. However, because of the inconsistency, the court has closely scrutinized her evidence, and born this in mind when weighing and considering the evidence.
[7] The effect of the evidence at T38, lines 3-12.
[8] Exhibit P1.
The plaintiff tendered police and court records indicating that the defendant was arrested and charged on 17 November 1998, and pled guilty on 20 December 1999 to indecently assaulting her, ultimately being sentenced to imprisonment for that offence in the criminal jurisdiction of this court on 23 March 2000.[9] She also tendered psychological assessments that had been performed on her that attributed certain psychological problems to such an assault.[10]
[9] See exhibit P1.
[10] See exhibits P2 and P3, reports of Dr Jack White dated 30 April 2009 and 25 June 2012.
The plaintiff’s counsel pointed to the fact that in this court the defendant had also formally admitted the indecent assault in his defence, which such defence had been certified by his solicitor as having been prepared on the defendant’s instructions and had been settled by experienced senior counsel. The plaintiff’s counsel pointed to the fact that one particular of the assault was admitted and others denied, indicating that instructions plainly must have been sought from and provided by the defendant in some detail, to allow for such specificity in pleading the factual particulars of the defence.
The plaintiff relies on these admissions, made on two separate occasions in two different court cases, while fully legally represented by two different sets of lawyers, as strong evidence that she was indecently assaulted.[11]
[11] Section 34A of the Evidence Act provides that evidence of a criminal conviction is admissible in civil proceedings against the person convicted. It is evidence of, rather than conclusive proof of, the conduct for which the person was convicted.
The plaintiff’s mother also gave evidence of the events of 4 November 1998. She said she had asked if her daughter could be picked up from school that day. She said that when she attended the defendant’s house that afternoon to pick her daughter up from there, her daughter appeared clingy and scared. She said that Ms M the defendant’s partner told her about what the plaintiff had told the defendant’s daughter, and that the plaintiff had then told her, after which she took the plaintiff to the police station. She said there was no reference to the plaintiff lying or being a liar, as suggested by the defendant at trial.
The plaintiff’s mother said that they had nothing further to do with the defendant or his household. The family immediately went to stay at her parents’ house over that weekend, then applied to the Housing Trust to move elsewhere, which they were able to do several weeks later.
She also gave evidence of significant changes in her daughter’s behaviour after the assault, particularly in relation to her social life, and in any environment involving groups of people or requiring interaction with male persons.
Both the psychologist called by the plaintiff to give evidence, and the psychiatrist called by the defendant gave evidence that the plaintiff’s presentation and history was consistent with someone who had been indecently assaulted in the way that the plaintiff claimed she had been assaulted.[12]
[12] Under cross examination by and on behalf of the defendant Dr White said that all the information he had, and his psychometric test data was consistent with abuse having occurred, see for example T 343.
There was also some circumstantial support for the plaintiff’s allegation, from the surrounding events of the day. It was clear that this was the first time that the plaintiff had been picked up alone from school by the defendant, in circumstances where both Ms M and the plaintiff’s mother had expected that Ms M and the defendant’s children would be going with the defendant to pick her up, and that the defendant had for some reason taken the plaintiff away to his market gardening property instead of taking her directly home, which Ms M had also expected.
On the other hand the defendant gave evidence flatly denying that anything untoward had occurred.
He gave evidence that by 1998 he had separated from his wife and was living with his girlfriend Ms M and two children he had had with another woman. He said he was at work on his market garden property when he got a call from Ms M asking him to pick the plaintiff up from school, which he did. He said that rather than take the plaintiff home he decided to return to his market garden property and feed his animals, as it was a hot day. He said that when he got there the plaintiff went into the shed, sat on a lounge there and watched TV.[13]
[13] T376.
The defendant said after a while he went into the shed and said “time to go home dear”, to which the plaintiff replied that she wanted to wait a couple of minutes to finish watching a show that was on TV. He said he went and sat next to the plaintiff on the lounge whereupon she moved closer to him and she lifted his arm and put it around her so that it happened that “I put my hands down in his (sic) belly way”. He said the TV show finished whereupon he took her home and she then played with his daughter there.[14] The defendant said that there was no sexual touching at all, nor did he have any intention to molest the plaintiff.[15]
[14] T379.
[15] T380.
The defendant was asked whether anything happened on the day concerned that might give somebody a motive to make up an allegation like what is alleged in this case, and the defendant replied that he didn’t know, but that it could be that the plaintiff and her mother over the previous years worked out what happened and were trying to blame him for something that never happened.[16]
[16] T380.
The defendant said he never saw the plaintiff or her mother again, except once a few days later he said that the plaintiff spoke to him over the fence and asked “Uncle Charlie, so why can I never see (your daughter)?”.
The defendant said that he did have lawyers for his criminal case, but that he couldn’t afford to pay the $10,000 they told him he needed to fund the case. He said that he could not apply for legal aid in the year 2000 as he owned a number of properties. At that time he lived in one of them and the other two were rental investment properties. Two of the three properties were unencumbered. He said that although he told his lawyers he was innocent his lawyer told him that if he didn’t have any money to run the case he should plead guilty and he would get out of it easy, so he pled guilty. He said that the lawyers never told him that there was any possibility of going to jail.[17]
[17] T382-6 and T478-482.
During the course of this evidence the defendant volunteered that on another occasion, in 1990, he was charged with raping two other girls, but they had made up those allegations against him because he would not give them Shetland ponies, and the case was dropped after he went to court. Whilst it was not completely clear why the defendant brought this up, it may have been to illustrate to the court that other false accusations of sexual offending had been made against him as well.[18]
[18] T388.
The defendant said that notwithstanding that his filed defence admits indecently assaulting the plaintiff, he never instructed his lawyers to make such admissions.[19] At one point he said that he thought his lawyers compiled his defence from what they found out through the court,[20] although at another point he said he did not know why his defence admits the indecent assault.[21] He denied he gave his lawyers instructions to admit one particular and deny certain others, as appears from the pleadings, and said that he thought his lawyers were acting more for the other side than for him.[22]
[19] T486.
[20] T488.
[21] T490.
[22] T488-492.

The defendant called Ms M to give evidence.
Ms M indicated she has a range of medical problems including problems with her memory and was at risk of passing out.
Ms M told the court that the plaintiff’s mother did ring and ask if the defendant could pick up the plaintiff from school, and that was arranged to occur. She said she became worried that they did not return to the house, so she rang the shed and spoke to the plaintiff who said that the defendant was feeding the dog and was in the glasshouses with the tomatoes, to which she replied that they should have been home.
Ms M said that when they did return the plaintiff asked where the defendant’s daughter was and went to her. Then the defendant’s daughter came running in and told her that the plaintiff had told her something. The defendant’s daughter said she would say what it was when her friend had left, but Ms M insisted that Ms M be told immediately, whereupon the defendant’s daughter disclosed that the plaintiff had told her that the defendant had taken her out to the farm and touched her somewhere. Ms M then spoke to the plaintiff who said the defendant’s daughter was lying. Ms M said that as soon as the plaintiff’s mother arrived she told the plaintiff’s mother, who told Ms M that the plaintiff tells lies, and took her home.[23] In cross examination she said that she had been expecting the defendant to pick her and the defendant’s two children up for the purposes of then picking up the plaintiff, as had happened before, but that had not happened.
[23] T512 et seq.
I turn to an assessment of the evidence.
The plaintiff was a good witness. Her evidence was clear, consistent and straightforward. She became upset at the point of discussing the assault on her, in the way one might expect an honest witness recalling distressing and upsetting events might become upset. I could not detect any motive she might have had to fabricate the complaint she made to her friend, then her mother and ultimately the police in 1998, which was essentially consistent with the evidence she gave to this court. It had the ring of truth. She was a credible witness.
The plaintiff’s mother was a clear, mature, straightforward witness who also gave her evidence well. She was a credible witness.
The defendant was a poor witness. I make allowance for his language difficulties, although it is to be noted that he had the assistance of a qualified interpreter for the duration of the trial. Nonetheless his evidence was often jumbled and inconsistent well beyond what might be ascribable to any language difficulties.
His explanation for why he took the plaintiff back to his market garden shed rather than home was unconvincing. He had been at his market garden shed all day, and could also have gone back there immediately after dropping the plaintiff back to Ms M at the house as was being expected to happen. The house was only 500m to 1 kilometre from the house, i.e. only moments away by car. There was accordingly no need whatsoever to take the plaintiff to the market garden so he could feed his animals due to it being a hot day, in circumstances where he had already been there all day, and was to return there in any event as soon as he dropped the plaintiff home.
The defendant’s evidence about how his 1998-2000 lawyers told him to plead guilty although he told them he was innocent, and how he could not afford the $10,000 to plead not guilty although he had two completely unencumbered properties at the time, lacked credibility. His evidence about how his lawyers in this matter filed a defence settled by senior counsel either without getting instructions from him or contrary to his instructions also lacks credibility.
Overall the defendant was not a good or credible witness.
Ms M is a person with obvious physical and mental difficulties. She admitted a range of problems with her health and memory. She passed out at one point in the witness box. Despite this the court formed the view that she was an honest witness, trying to tell the truth. She has however, I find, a very poor memory due to her medical situation and a range of other challenges and tragedies she has had in her life which it is unnecessary to repeat in these reasons. Further, she has been discussing these events over the years with the defendant. Hence whilst she was an honest witness trying to do her best, her memory of events, particularly of who said what to whom 14 years ago, is I find quite unreliable.
As the defendant has repeatedly submitted throughout the trial and in his address, I note that there is no physical evidence of injury to the plaintiff or any other forensic evidence of an indecent assault.
Given the conduct alleged, of non violent touching of the bottom and non violent rubbing of the penis on the outside of the vagina, one would not necessarily expect there to be any physical manifestation on subsequent examination by a doctor, particularly a day or two after the event.
As no DNA evidence was called, I assume that there was either no DNA analysis done, or that if done there were no positive results, or that given the strength of the plaintiff’s case including the admissions made in 1999 and in the 2011 filed defence, that the plaintiff’s lawyers did not pursue the issue. For whatever the reason, no such evidence was called and the court accordingly proceeds on the basis that there is no such evidence.
I note however that both the psychologist who was called by the plaintiff and the psychiatrist called by the defendant gave evidence that the plaintiff’s presentation to them and the symptoms she displayed and the history she provided were consistent with her having been indecently assaulted.[24]
[24] Dr White variously, for example at T 355; Dr Raeside at T 643.
I have considered all the evidence given, and all the submissions made by counsel and by the defendant. I bear in mind the absence of forensic and DNA evidence. I bear in mind the pleadings, and the ways in which the plaintiff and the defendant’s evidence respectively departed from their pleadings.
In considering the evidence I bear in mind that the plaintiff alleges serious misconduct on the part of the defendant.[25]
[25] Briginshaw v Briginshaw (1938) 60 CLR 336, Whitlam v ASIC [2003] NSWCA 183, ASIC v Hellicar & Ors [2012] HCA 17.
In the final analysis I prefer the evidence of the plaintiff and her mother to the evidence of the defendant and Ms M where it conflicts. They were better, more consistent, more logical witnesses, whose evidence was more plausible and reliable than that of the defendant and Ms M.
Conclusion on liability - the indecent assault did occur
I find on the balance of probabilities that an indecent assault occurred as the plaintiff described it in evidence.
Accordingly I find that on 4 November 1998 the defendant rather than taking the plaintiff directly home from school, instead took her to a shed on his market garden property and indecently assaulted the plaintiff by getting her to take her pants and underwear off, having her on top of him, touching her bottom and rubbing his penis against her vagina.
Whilst a child cannot legally consent to an indecent assault, I also find that the plaintiff did not in fact agree or consent in any way, and that the events were frightening, confusing and upsetting for her as they occurred.
Quantum
The plaintiff claims that in addition to the assault itself she has as a result suffered and will continue to suffer psychological and psychiatric injury, affecting her education and employment prospects and her ability to enjoy the amenities of life, including the ability to socialize and interact with others.
The indecent assault itself, as described by the plaintiff would have been, and was, particularly frightening and upsetting for the 8 year old plaintiff at the hands of her elderly male next door neighbour, having been taken without explanation to a shed on his market garden property when she would plainly have been expecting to be taken straight home from school, and then subjected to the conduct described. She later described to a psychologist her state at the time of the assault, as feeling petrified and helpless. The events immediately following the assault would I find have been very upsetting as well, being taken to police and having to take her clothes off and give them to police, then being taken to Adelaide for medical examination only to be unable to face a male doctor and having to come back at a further time when a female doctor was available. The family went to stay at her grandparents’ farm at Milang as a result, then moved house.
The plaintiff said that the incident still comes into her mind sometimes, and it makes her feel lonely and sad when that happens.[26]
[26] T60.
The plaintiff did not have much current recall of the time immediately following the assault in terms of schooling, but said she didn’t have any male teachers then. The plaintiff said she completed year 9. She said that when she went to high school she had difficulty going to school:
A“…because I had to be in groups and stand up in front of students and the teachers, most of my teachers in high school were males.
QWhat were the difficulties about that?
AI just couldn’t be, I don’t know, I just couldn’t stand being around them, being in groups of people”.[27]
[27] T46.
She said that she wanted to be a vet or a vets nurse, due to a love of animals, but she didn’t have good enough grades as she didn’t complete schooling.
She said her life changed after the assault in various ways. She said that after the assault she would never go into a shop without her mother or someone by her side, and that she wasn’t able to stand up in front of people and talk and be in groups of kids like she had done previously. She said that she didn’t like being in groups of people unless she has her mother or a friend with her, and she never goes out where there are large groups of people such as a hotel and a cinema, except sometimes with her brother to the cinema. She says she only has female friends,[28] but that she never goes out with them when they invite her to public places such as clubbing or to the pub.[29] She said her only hobby was horse riding.[30] She said she does not like to be alone, even when horse riding, so she usually has her brother with her when she goes riding.[31] She said she was scared of talking to strangers even on the phone and would never answer the phone if she doesn’t know who is calling, per the caller identification on her phone.
[28] T46-48.
[29] T58.
[30] T47.
[31] T57.
She said that she feels worthless because she can’t achieve the things she wants to achieve such as going out and enjoying herself with friends.[32]
[32] T61.
She said she has never had a boyfriend.[33] She said she doesn’t let anyone get close enough to hurt her, that she does not like being touched and did not want to get into anything serious with anyone.[34]
[33] T63.
[34] T64.
The plaintiff said that when she left school after some casual part time work helping with racehorses, near the time she turned 17 she got a full time job at the local meat works, but that she only lasted some seven or eight months because she found she was scared of the men there. She told the court that sometimes they would hug her, or say they wanted her, and she became scared and could not stay there.[35]
[35] T50.
As a result she became unemployed and received assistance from a Centrelink work skills program called “Finding Workable Solutions”. She then did some seasonal work, but found it hard to get suitable employment for some time.
The plaintiff said that her caseworker suggested she look at available work in the area such as supermarket checkout operator, but she didn’t want to because of having to talk to people and having all the people there around her and having to meet people.
Eventually, some three years later in May 2011 she was able to get full time employment again in a job she could do, milking cows at a small family dairy farm at Monteith. That is very hard work, necessitating a 5am start to milk the cows in the morning, and a return to the farm later in the same day at 3.30pm to milk a second time. The plaintiff said that she had done milking off and on over her life and while she would like to try something else, nothing else was open to her at present.[36]
[36] T56.
The plaintiff said she enrolled in a TAFE childcare course in 2010, but she did not complete it because she found the compulsory placements hard as she didn’t want to be around the groups of people that were a part of the placements.[37]
[37] T58.
The plaintiff said she currently earned $20 an hour, bringing in between $1,100 and $1500 a fortnight depending on hours worked.
The plaintiff’s tax assessments were tendered for the financial years ending 30 June 2008, 30 June 2009, 30 June 2010 and 30 June 2011. The assessment ending 30 June 2008 would likely have covered the seven or eight months working full time at the meat works, with the rest of the year the plaintiff on unemployment benefits or doing casual seasonal work. Her income for that year was $23,349. That figure includes her earnings from the meat works while employed there and her unemployment benefit for the remainder of the year. I estimate therefore that in very rough terms her meat works job would have returned approximately $30,000 for the full year at around that time.
The assessments for the year ending 30 June 2009 and 2010 reflect a time of unemployment and casual work only, and are $8978 and $6966 respectively. The assessment for the year ending 30 June 2011 would reflect this same state of affairs for most of the year but include the first month or so of her employment at the Monteith dairy farm. The income for that year was $9,327.
Her current annual income, based on her evidence that her fortnightly income is between $1100 and $1500 would at an average fortnightly return of $1300 total $33,800.
The plaintiff did not pursue an initial application to tender retail shop assistant award rates.[38]
[38] T358-359.
The plaintiff called Ms Renee Cooper, the Youth Employment Consultant who in her role with an organisation called Finding Workable Solutions Inc, had assisted the plaintiff to look for employment. Centrelink had referred the plaintiff to that organisation as part of the service Centrelink provides to unemployed people to assist them gain employment. The organisation’s records relating to the plaintiff, largely compiled by Ms Cooper, were tendered.[39]
[39] Exhibit P4. A short summary letter was also tendered as Exhibit P5.
The Finding Workable Solutions’ records and Ms Cooper’s evidence documented the plaintiff’s contact with them between November 2010 and June 2012. In short, they reflect the Plaintiff’s reticence and difficulty at the idea or suggestion of any employment involving contact with groups of people and the general public. The evidence also shows that the plaintiff was interested in finding work, particularly with animals, and was motivated to look for and obtain such work, and stick at it when she did get it.[40]
[40] T175 et seq.
The plaintiff was assessed by a psychologist Dr Jack White. Two reports by Dr White were tendered.
In the initial assessment conducted in April 2009 Dr White noted that for various reasons the plaintiff was a particularly vulnerable child prior to the assault. He assessed the plaintiff as having significant psychological problems related to anxiety stemming from the assault on her, manifested as a fearfulness of males and general anxiety about most aspects of her living, in turn affecting her capacity to perform at school and limiting her later vocational choices.[41] He assessed the plaintiff as presenting to him with a very vulnerable personality makeup, dealing poorly with stress. The clinical profile emerging from the assessments and testing performed by Dr White indicated that in Dr White’s opinion the plaintiff satisfied the diagnostic criteria for a generalised anxiety disorder and a post traumatic stress disorder as a result of the assault. He quantified her level of overall functional loss, based on a comparison of her premorbid functioning to her post incident functioning as 35.7% of her global functioning. Dr White summarized this functional loss in terms of a poor coping in most aspects of her life, her extreme emotional distress, her limited capacity to deal with relationships and her extreme fearfulness of males.
[41] Report of Dr White dated 30 April 2009 P2, at page 9.
Dr White said that while the plaintiff would likely have difficulty engaging in therapy because of her psychological state, he recommended she do so and recommended an estimated total of 15-20 sessions of therapy to address her general anxiety and stress symptoms, at a likely cost of $3,000-$4,000.
Dr White reviewed the plaintiff in June 2012. He reported that she continued to suffer heightened levels of tension and anxiety in situations and had great difficulty socializing especially with males. He noted that since the 2009 assessment there had been a reduction in her general level of anxiety, emotional instability and level of reported ‘attitude to aggression’, although some aspects of her anxiety remained elevated and she also remained socially isolated. He noted that she had adopted avoidance behaviour/symptoms in that she actively avoided people and places that reminded her of the trauma. He observed that although she had not sought treatment as previously recommended, he had observed in 2009 that she was the kind of person who would have difficulty undergoing treatment. He observed in 2012 that she now reported a number of strengths and positive indicators for a relatively smooth treatment process and a reasonably good prognosis.
When speaking to his reports in evidence, Dr White observed that while her symptoms including her anxiety levels had indeed become less severe by 2012, that was because she had adopted avoidance as a coping strategy, simply avoiding situations that would cause her difficulty such as environments where there were males or any potential perceived threat, or any issues relating to sexuality. As a result he reassessed her loss of global function initially as down to 27.1%, but factoring in the loss of function caused by the avoidance itself, his view was that a more realistic figure was 30%. In layman’s terms, while she is feeling better in one sense, she is achieving that by reducing the areas of activity and function available to her.[42]
[42] T298-301, T322-325.
Dr White said that simply from an assessment of symptoms at present he would tend to a diagnosis that the post traumatic stress disorder had resolved and was now simply an adjustment disorder with anxiety, but that when you consider that the improved symptoms had been achieved by significant avoidance behaviour, he would maintain his original diagnosis of post traumatic stress disorder. In other words that she still suffered post traumatic stress disorder; simply that it was now manifested in a different way.[43]
[43] T298-301, T322-325.
Dr White said that the plaintiff could, and indeed he recommended that she should, address her issues with psychological treatment, but that in cases of sexual abuse doing so takes courage as therapy requires the person to go back into the events which can be a distressing process in itself. He said that while he recommended that she do so, it would be very difficult for the plaintiff to do so as her method of dealing with problems is to avoid situations that remind her of the abuse. He said that whilst he hoped she would, from his assessment of her and his experience with other sexual assault victims he was not confident that she would do so.
Dr White said that the plaintiff had a good work prognosis for jobs like the one she currently held, i.e. farm work where she did not have to interact with males or generally with the community, but she would have a limited likelihood of coping with other jobs of potential interest to her that did have such interaction, such as working in a veterinary surgery, pet shop or in any sales related role.[44]
[44] T335-336.

The defendant called a psychiatrist Dr Raeside to give evidence. He had examined the plaintiff in January 2012 at the defendant’s request, and he provided a report of that examination to the court.[45]
[45] Exhibit D1.
The main area of disagreement expressed by Dr Raeside with Dr White’s first report is in the area of reported symptoms. Dr Raeside notes several aspects described by Dr White either as a result of a ‘profile’ he has arrived at, or several reported symptoms that were simply not apparent in Dr Raeside’s examination of the plaintiff. It is likely that this may at least in part be due to the plaintiff’s difficulties as a result of her anxiety and interactive style and her reticence to discuss matters. This anxiety and reticence was displayed, observed and reported by Dr Raeside when he saw her. It may also be in part explained by the fact that Dr White’s first report assessed the plaintiff in April 2009, whereas Dr Raeside assessed her nearly 3 years later, at a time when her symptoms including anxiety had significantly improved, probably due to the plaintiff having learnt by that time to avoid situations that caused her anxiety and difficulty. Indeed when Dr White reviewed her in June 2012 he also noted the improved symptoms. There are some differences in aspects of assessed intelligence, Dr White’s view arrived at by application of standardized psychological tests, and Dr Raeside’s arrived at by way of clinical assessment, which ultimately I have not concluded are of major significance.
Dr Raeside had access to the plaintiff’s school reports which referred to periods before and after the 1998 assault. The assault occurred at the end of year 2. He noted that the reports revealed that there were features of introversion and social anxiety prior to the assault. The reports reveal that in the year after the assault there was a noticeable change in her behaviour after which she sought adult attention more frequently and seemed to have become more dependent on the security that her class and school provided. Dr Raeside also took a history and overall noted in particular problems in the year after the assault and also noted problems in particular in year 9 associated with the plaintiff then leaving school.
He concluded that while she was a vulnerable child and her anxiety problems and social difficulties were aggravated by the alleged assault to the point that she suffered a post traumatic stress disorder for up to a year after the assault, in his opinion that then resolved, and from that point on was only an adjustment disorder with anxiety. In other words he did not agree with Dr White’s opinion that she still suffered a post traumatic stress disorder.
Dr Raeside did agree with Dr White that her social and occupational functioning had been impaired as a result. In his view about a year after the event her functioning had improved significantly, as indicated by the school reports, however in year 9 the decline in functioning indicated by the school reports leading to her departure from school part way through that school year was probably related to the assault. As he put it in his report:
It is difficult to attribute (the plaintiff’s) current difficulties directly to the indecent assault, but this was probably a major influence in the subsequent difficulties. However, as noted she appears to have functioned relatively well throughout primary school and year 8, before declining in year 9. It is probably not simply co-incidental that she experienced increasing social problems and anxiety associated with her progress through adolescence, a time in which any of those underlying difficulties are likely to re-emerge and become more problematic, particularly in increasingly demanding social settings, often with associated sexual components to them.[46]
[46] Exhibit D1, page 17.
He concluded that whilst he would not say that her early departure from school was directly attributable to the events in question, that nonetheless she had been psychologically injured as a result of the indecent assault on her. He said that was primarily through anxiety symptoms, which may have led to early school termination, which may in turn have impacted on her future earning capacities.[47]
[47] Exhibit D1, page 19.
He agreed in his report with Dr White that the plaintiff’s avoidance of forming sexual relationships to date is probably directly attributable to the impact of the indecent assault on her, although he said her more general anxiety would also be a contributor to that.[48]
[48] Exhibit D1, page 17.
In evidence Dr Raeside said that the onset of puberty that may well have accompanied the re-emergence of her symptoms and problems at school and her departure therefrom, would also have re-emerged in terms of her personal life and anxiety levels, and that the major anxiety disorder would have been a major barrier to enjoying the social and other amenities of life from that time and into adulthood, which such thing does not go away as you become an adult.[49]
[49] T635.
Dr Raeside said in his report he did not believe that the plaintiff had any current incapacity for work, in the sense that she was currently working in a job she enjoyed, with a male person her employer.[50]
[50] Exhibit D1, page 17.
In evidence Dr Raeside observed that there were a range of contingencies that clearly needed to be borne in mind, that there could be any number of factors that could impact on the plaintiff’s schooling in any event, and even if the events did impact on her schooling that might not ultimately impact on her employment. He observed that the school reports showed that prior to year 9 there was not a great impact on her schooling indicated.[51] He did say that her school reports indicate she had the academic ability to have stayed at school beyond year 9.[52]
[51] T624-625
[52] T628.
In evidence Dr Raeside said that whilst the plaintiff could work and was working, the plaintiff had impairment in her ability to engage in employment that she otherwise might be capable of doing, for a range of reasons, including her limited schooling, her social anxiety, her difficulty in group situations and her other psychological factors, although it was less easy for him to ascribe the relative contribution of the assault at age 8, versus other factors that might have been operating in her life. He observed that people who have been sexually abused are at greater risk of experiencing difficulties later in life in interpersonal settings such as relationships, socially and in employment for a number of reasons. He said that in terms of any future incapacity for work she would be at increased risk of depression, stress and anxiety, particularly when under significant stress, and would find some situations particularly difficult, say for example where there may be domineering male supervisors. He said that many people in her situation would likely choose a path to avoid such situations, but that would limit her choices as to what she does. He said that she is likely to experience difficulties in employment in the future although she seemed to have located herself in a situation where she can control her anxiety and feel comfortable. Dr Raeside said he was broadly in agreement with Dr White in relation to this aspect of the plaintiff’s situation.[53]
[53] T630-632.
In the end Dr Raeside seemed broadly in agreement with Dr White that the same avoidance situation likely existed in her social and general life, in that she would suffer the anxiety adjustment disorder in a range of situations but would likely reduce and avoid the anxiety by ordering her life to avoid such situations, however that in turn would reduce the range of social and life activities that she could participate in. Given the practical similarity in the evidence given by both doctors in terms of the effect on the plaintiff’s life currently and in the future, in the final analysis the fact that the doctors categorise her disorder differently is of limited concern. Both agreed that the plaintiff should seek treatment, but would find it difficult to do so.[54]
[54] T638-639.
I have not summarized all the evidence in these reasons; however I have taken it all into account.
I turn to an assessment of that evidence.
Assessment of evidence as to quantum
I accept the plaintiff and her mother as witnesses of truth, and accept that they honestly attempted to recall and accurately describe the plaintiff’s life and the problems she has had since the assault.
I accept both doctors as fully qualified, honest and reliable expert witnesses. The evidence of each was a competent and reasonable reflection of the facts that each had at their disposal at the times of the respective reports, and of the applicable psychological and psychiatric principles. I find the differences in the written reports largely explicable in terms of the different times of the reports, the plaintiff’s coping mechanism of avoiding traumatic situations having improved her observable symptoms considerably between 2009 when Dr White wrote his first report, and 2012 when both doctors reviewed her. I also find that differences between the assessments were also likely due to the fact that the plaintiff was, due to her condition, relatively reticent and unforthcoming with both doctors, which made the task of each obtaining a full history in particular of symptomatology harder than it otherwise might have been. In the end, when both doctors gave oral evidence having reviewed the other’s report(s), their evidence was closer than originally apparent from the reports.
The school reports are a significant indicator, I find, of the plaintiff’s functioning during the period they cover, and although I accept to some degree the qualifications one must apply to such documents as adverted to by Dr White, I find they are likely to be a fairly reliable guide to the plaintiff’s functioning on a year by year basis during that time. They indicate significant effects in the year after the assault, then a relatively good school life and academic performance until year 9 when a combination of puberty and high school life with a higher incidence of male teachers was accompanied by a serious adverse effect on the plaintiff’s attendance and success at school.
I find on the balance of probabilities that:
1The plaintiff was a shy and relatively vulnerable child prior to the assault, due to instabilities in her childhood including the absence of a father and regular changes of address and schooling in her early years.
2The sexual assault by the defendant of the plaintiff at the age of 8 was a frightening and highly traumatic event that happened as the plaintiff described it in evidence, which was extremely upsetting at the time.
3The assault resulted in the already vulnerable plaintiff suffering a post traumatic stress disorder for at least a year, which resulted in the plaintiff seeking the safety of teachers and avoiding contact with males and groups.
4The post traumatic stress disorder settled down after about 12 months.
5From about one year after the assault (the assault occurred at the end of year 2) until year 9 the plaintiff’s life was only moderately affected although she avoided situations likely to stress her and create anxiety. Dr Raeside characterized this as an adjustment disorder with anxiety, as her symptoms had reduced, whereas Dr White characterized this as a continuing post traumatic stress disorder as he included the avoidance behaviour as an indicator in his assessment.
6In year 9, with the onset of puberty and issues surrounding that, the plaintiff as a result of the assault and the psychological condition the assault had caused found it difficult to cope with school life in high school, in particular with the higher incidence of male teachers and having to get up in front of groups in front of others including those male teachers. That was a significant factor in her increased absenteeism from school and her then leaving school entirely part way through year 9.
7From leaving school to the date of trial the assault has significantly impeded the plaintiff’s life in that she will not go out to pubs and clubs with her close friends, is fearful of and avoids situations that involve exposure to groups of people or interaction with people that she does not know, and has significantly impeded her ability to form a relationship with a partner.
8After leaving school the plaintiff obtained casual work, then at the age of 17 secured work at the local meat works which she genuinely pursued, however she was unable to continue in that job due to her psychological condition suffered as a result of the assault meaning that she could not cope with the men at that place of work. She was then unemployed until she secured a job milking cows on a small farm where there were limited males and no interaction with the public. While she was unemployed she genuinely sought work but due to her condition was impeded in finding work as she could not contemplate jobs suggested to her by her caseworker such as checkout operator due to the requirement to interact with the public including numbers of men she did not know.
9The plaintiff has a good work ethic, as demonstrated by her willingness to attempt to work full time at the local meat works and her securing and persisting with her milking work on the farm at Monteith for an extended period, which I find involves an early start, two separate attendances at the farm each day, and hard work.
10The plaintiff is significantly impaired in her ability to socialize and interact with the world generally in that she avoids situations where she will come into contact with groups, people in public and men that she does not know, both in her personal and social life, and in any potential work situation. This situation is likely to continue throughout her life unless she is treated for it.
11The plaintiff could likely significantly ameliorate her symptoms and condition with a dedicated course of psychological therapy.
12Because of the nature of her condition, it will be difficult for the plaintiff to embark on such a course of treatment as such treatment would require the plaintiff to revisit the traumatic events she has been trying to forget.
Failure to mitigate loss
The defendant has argued that if the plaintiff has suffered any loss then she has failed to mitigate her loss by failing to seek treatment.[55]
[55] Paragraph 6.3 of the Defence.
The medical evidence called by both the plaintiff and the defendant is to the effect that the plaintiff should undertake psychological therapy to address her psychological condition and ameliorate her symptoms.
Dr White reported in April 2009 that the plaintiff would benefit from psychological treatment addressing her extreme anxiety and her problems with a range of interpersonal relationships including relationships with the opposite sex and the prospect of having a normal sex life. He strongly recommended that she be referred to a female psychologist, and recommended an appropriate practitioner who practiced near where the plaintiff then lived. He noted however that the nature of her psychological profile as a person who is very vulnerable to stress and coped poorly with conflict would suggest that she would have difficulty engaging in therapy.[56]
[56] Paragraph 4.6 of Exhibit P2, report of Dr White dated 30 April 2009.
Dr White reviewed the plaintiff in June 2012. He reported that she indicated to him “a positive attitude to the possibility of personal change, the value of therapy and the importance of personal responsibility.”[57]
[57] Paragraph 3.4 of Exhibit P3, report of Dr White dated 25 June 2012.
Dr White gave evidence that while he recommended it, it would be difficult for her. He said that the plaintiff has adopted a coping strategy of avoiding situations that potentially remind her of the abuse she suffered. He said he hoped that with family support she would be able to undertake therapy particularly if a female therapist she was comfortable with could be located, but people are scared of being re-traumatised by having to relive the memory of events, and:
…if I was a betting person I would say she probably won’t and I say that because I’ve seen a lot of people similar to her, in her situation, who just – they get to a point where they can actually verbalise the fact that they’re going to do it but when the ‑ when the crunch comes, they find it very, very difficult and they will avoid it.
Dr Raeside also addressed this issue. He reported that whilst he did not believe she needed any psychiatric treatment, he said that psychological treatment assisting her with her social anxiety would potentially be useful, through cognitive behavioural techniques and exposure therapy. He observed that she may be only partially motivated to engage in such treatment, particularly if she finds it anxiety provoking, which Dr Raeside recognized would be a part of such treatment.[58]
[58] Page 18 of Exhibit D1, report of Dr Raeside dated 24 January 2012.
I find that the plaintiff has genuinely felt unable able to take up Dr White’s 2009 recommendation to undertake therapy.
This is an unusual case, in that the plaintiff’s condition would probably have been improved to some degree with psychological treatment to date, and likely would be so in the future, yet for the reasons expressed by both doctors, has felt unable to do so to date and will likely have difficulty doing so in the future.
The plaintiff is obliged to take reasonable action to avoid loss, and that obligation includes in appropriate circumstances to undergo treatment.[59] The defendant bears the burden of proving that the plaintiff unreasonably failed to mitigate the damage occasioning the loss by declining to submit to treatment.[60]
[59] Goldsborough v O’Neill (1996) 131 FLR 104.
[60] Luntz, H, Assessment of Damages for Personal Injury and Death, 4th Edition, Butterworths, Australia 2002 at paragraph 1.9.19.
The issue is not simply whether the treatment should be undertaken from a medical point of view, but whether looked at from the plaintiff’s point of view it was unreasonable not to have undertaken it, in other words subjective factors are relevant.[61] It is legitimate for a plaintiff to weigh up the chance of the treatment alleviating the condition with all the other circumstances, which might include the risk of possible aggravation, the inconvenience and discomfort associated with treatment, and other factors such as cost and time off work. Here, it must also be considered that it is the condition the plaintiff suffers due to the assault which is, according to the doctors, a genuine barrier to the type of treatment objectively recommended.
[61] Glavonjic v Foster [1979] VR 536.
Weighing all that up, ultimately I conclude that it has not been unreasonable for the plaintiff not to undertake psychological therapy to date. The plaintiff has been growing up through adolescence and young adulthood and has had to cope with her condition in a developmental and changing period of life, a period which has enough challenges for people even absent any psychological conditions. During such a period the prospect of intense psychological therapy would have been genuinely frightening, and would have required the plaintiff to relive, to some considerable extent, the traumatic events themselves. It would have required the plaintiff to abandon her primary coping mechanism of avoiding reminders of the events, which coping mechanism has according to Dr White been successful in significantly reducing her anxiety and other symptoms over time.
Accordingly no reduction in past loss is appropriate on the basis of the pleaded failure to mitigate loss.
I find that there is some chance that she will be able to undertake such therapy in the future, with more maturity and other aspects of her life having achieved stability. I find that, primarily based on the evidence of Dr White, it is more likely that she may not be able to commence or complete the recommended therapy due to the fear of the trauma of reliving the events that it would involve. I however factor into the assessment of future loss the possibility that she may be able to embark on and complete treatment to address her condition, although as with any treatment of that nature it is not possible to guarantee success or predict the degree of likely success.
Economic loss

It has not been the easiest task to assess economic loss in this case. The court has only received limited assistance in some respects. The court has received no evidence of average weekly wages or award rates, or of the wages the plaintiff might have earned in any of the fields that the plaintiff says she may have been able to work in, absent the assault on her.
However, the plaintiff is genuinely psychologically injured and has suffered a genuine loss of earning capacity, and so the court must simply do its best to make an assessment, despite the limited evidence tendered to it.
I do note as background the current average weekly earnings in Australia, and over the period concerned, appreciating the very general nature of that figure.[62]
[62] Conveniently set out in appendix A2, Britts, Comparable Verdicts in Personal Injury Claims.
Past economic loss
I find that the plaintiff was not materially impeded in securing her initial employment after leaving school, as she indeed initially took a job that did involve contact with people and men. I find that the assault was a primary cause of her inability to cope with that job and the reason she could not stay at it.
I find that she was genuinely interested in finding replacement work, and work such as checkout operator or service station attendant was available, but could not do so due to her condition caused by the assault. There is no evidence that she could have necessarily found a better paid job than the milking job she subsequently obtained, but there is a material possibility she may have, given that absent her condition occasioned by the assault there would simply have been more and varied jobs she could have done and accordingly she may have got a higher paid job.
I find that given her willingness to take the meat works job and her good work ethic at the farm now, she would likely have been fully employed from the time of getting her job at the meat works until the time of trial, at about the rate of pay she was getting there.
I assess her earning capacity absent the assault as slightly higher than what she was paid at those two jobs to reflect the chance she had of obtaining a better paid job absent the condition she suffered occasioned by the assault, which I assess at an averaged figure of $35,000 gross per year from the time she obtained the meat works job until the time of trial.
Her actual gross annual earnings prior to trial are as follows:
2008$23,349
2009$8,978
2010$6,966
2011$9,237
2012$32,800
I take into account global contingencies both positive and negative including that she may not in any event have secured any other employment or may have secured lower paid (than $35,000 per year) employment, or only had other employment for some of the time. I take into account that such contingencies are in this case real given that she was a young person growing up in a rural area seeking employment. I would in those circumstances make a substantial adjustment of around 40% in that regards.
In relation to all these figures, the plaintiff would be entitled to receive the compulsory employer superannuation contribution.
The plaintiff is entitled to an allowance for interest.
I recognize that as a loss of earning capacity is a capital loss, compensation for it does not attract income tax and accordingly the assessment must be a net figure.[63]
[63] City of Prospect v Jaspers [2012] SASCFC 85 at paragraphs [43]-[48].
Taking all these factors into account, I assess past economic loss at $70,000.
Future economic loss
I find that the plaintiff has developed coping strategies based on avoidance of work situations that will cause her anxiety, and that when she is able to secure employment that does not involve such stresses she will display a good work ethic that will allow her to make a good go of such a job.
Her condition as a result of the assault will mean that should she leave her current employment then there will be a significantly fewer number of jobs available to her than would be the case absent her condition, and that as a result it will be harder for her to find work and accordingly her chance of obtaining higher paid work will also be limited.
I also find that her condition was the primary reason for her inability to finish school, which she was otherwise likely to do given her good academic performance in earlier years and her motivation to complete school to pursue a career as a vet or veterinary nurse. Had she finished school she would have been better qualified for other better paid jobs as well, and may also have qualified for tertiary or other advanced vocational study.
I take into account that the plaintiff may with more maturity become able to undertake treatment which if substantially completed would likely address her condition and at least reduce her symptoms and make her more employable than at present, but that it will be difficult for her to do so and it is more likely than not that she will not be able to do so.
Taking a broad brush approach I estimate that in light of all of this her overall earning capacity for the future is currently reduced by 30%, a figure which also equates to Dr White’s estimate of the plaintiff’s global loss of function. I find that this must be adjusted for the contingency that the plaintiff will be able to undertake psychological therapy to address her symptoms as recognized by both doctors, recognizing that it will be difficult for the plaintiff to do so due to the nature of her condition. I adjust the plaintiff’s estimated loss of future earning capacity to 25% in light of this.
I take into account her earnings to date, all contingencies both positive and negative, and the totality of the circumstances.
I add an allowance for compulsory employer superannuation contributions to which the plaintiff would also be entitled. These are currently 9%, paid as well as a person’s salary. They have been announced to increase from 9% to 12% incrementally over the period 1 July 2013 to the 2020 tax year. The announced changes to the rate have not been implemented to date, and will be subject to the many vicissitudes of politics, public policy and Commonwealth budget, so I take into account that the rate may very well not in fact increase as announced and accordingly I only make a very minimal adjustment on this account.
Taking everything into account, and adopting the broad brush approach that I must in the absence of any further assistance, I assess future economic loss at $110,000.
Past non-economic loss
As a trespass to the person, the plaintiff is entitled to an allowance for the assault itself, together with the subsequent trauma, upset and consequent loss of the amenities and enjoyment of life it also caused.
The assault itself and its immediate sequelae were highly traumatic and very upsetting to the plaintiff, and she suffered significantly over the 12 months following the assault.
Her life settled down and, utilizing some avoidance behaviour, she had only a moderately affected school life until year 9, when high school, male teachers and puberty were conditions whereby the trauma and effects of the assault significantly re-emerged, with the consequence that the plaintiff suffered significantly increased anxiety and to cope avoided a significant number of normal life activities such as going out alone, socializing with friends in public places and thus the assault has significantly impaired her ability to form any intimate relationships.
As such, the defendant’s actions were highly traumatizing to the plaintiff at the age of 8, moderately affecting from then until year 9, and have since year 9 significantly affected her young adulthood by essentially significantly restricting what she can do socially, impeding relations with persons from the male gender, and largely preventing her from forming any intimate relationship such as a boyfriend or partner.
That is a significant loss of an important part of her childhood, adolescence and young adulthood
I take into account all the authorities cited, and everything put by both the plaintiff and the defendant in submissions, and assess her past non-economic loss at $50,000.
I am cognizant of the rate of interest recommended in Wheeler v Page (1982) 31 SASR 1 as appropriate to an award of past non-economic loss of 4% per annum, and the principles therein, and recognizing that the non-economic loss was not suffered all at the date of the assault but rather at that time and over the subsequent nearly 14 years to the date of trial, in the exercise of the court’s costs discretion, $12,500 interest is allowed.
Accordingly past non-economic loss inclusive of interest is $62,500.
Future non-economic loss
The plaintiff currently suffers significant restrictions in what she can do, essentially restricting her ability to enjoy the social side of life in public, preventing activities generally that involve being in places where groups of people and men she does not know are, and almost entirely preventing her from forming intimate ongoing relationships with members of the opposite sex. That is likely to continue undiminished into the future, unless the plaintiff becomes able to undertake treatment.
I refer to but do not repeat earlier references to those restrictions as given in evidence by the plaintiff and her mother, and observed and recorded by the doctors, and their opinions concerning her restricted ability to function in public.
This will affect many of the activities most take for granted as part of a normal life, such as many ordinary social activities, the ability to meet people, to go shopping in busy places such as the city or large shopping centres, and for example to travel or go on holidays by herself or to places involving groups of people.
The most serious restriction is the restriction it places on the plaintiff’s capacity to form an intimate personal relationship, and the consequent ability to marry, have a family and enjoy a normal happy family life. For many, this is the most important aspect of living life. Accordingly, this is a very serious consequence of the assault on the plaintiff.
I factor in that the plaintiff may be able to embark on treatment and ameliorate her symptoms and condition, but that it will be difficult for her to do so, and that although both doctors recommend she do so, they both on balance do not think she will be able to do it. Even if she could embark on such treatment, it is difficult to predict how successful that treatment would be.
I take into account the global contingencies of life, both positive and negative.
Taking everything into account I assess future non-economic loss at $75,000.
Future medical expenses
Both doctors in this case recommend that the plaintiff undertake psychological therapy. Dr White recommended 15-20 sessions of therapy to address her general anxiety and stress symptoms, at a likely cost of $3,000‑$4,000.
Both doctors recognize that it will be difficult for the plaintiff, given the condition she suffers and her coping strategies to date, to undertake that therapy.
If she were to undertake that therapy, whilst it would cost $3,000-$4,000, then it is likely that she would suffer less future economic and non-economic loss than I have assessed.
If she does not undertake it, then she will not incur the cost of doing so.
In all the circumstances, as it is unlikely on balance that she will undertake the treatment, but if she does that her future economic and non-economic loss will probably be reduced by more than the cost of treatment, in all the circumstances I make no allowance for it.
Conclusion
The defendant indecently assaulted the plaintiff on 4 November 1998, also occasioning her significant economic and non-economic loss.
Damages are assessed as follows:

Past economic loss inclusive of interest

$70,000

Future economic loss

$110,000

Past non-economic loss inclusive of interest

$62,500

Future non-economic loss

$75,000

Future medical expenses

$0

Accordingly judgment will be entered for the plaintiff in the sum of $317,500.
The court will hear the parties as to costs and any further or consequential orders.

Past economic loss inclusive of interest	$70,000
Future economic loss	$110,000
Past non-economic loss inclusive of interest	$62,500
Future non-economic loss	$75,000
Future medical expenses	$0