TORTS – INTERFERENCE WITH THE PERSON – TRESPASS TO THE PERSON – WHAT CONSTITUTES GENERALLY: ASSAULT AND/OR BATTERY– where the appellant and respondent were married for approximately 15 years and had two children – where the appellant and respondent separated and the plaintiff continued to live in the matrimonial home after separation – where the appellant subsequently moved out of the matrimonial home – where the appellant told the respondent that he had hired somebody to rape and sodomise her – where the appellant broke into the respondent’s home while she was sleeping and physically assaulted her – where the appellant denies the assault occurred or that if it did occur, that he was not the perpetrator – where the appellant was acquitted after a criminal trial – where the respondent brought proceedings for damages for post-traumatic stress disorder – where the trial judge found in favour of the respondent in the order of $967,113.40 – whether the trial judge erred in finding that the weight and/or reliability of the evidence before him was such as to justify judgment in favour of the respondent
DAMAGES – GENERALLY – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – INCOME LOSS AND LOSS OF EARNING CAPACITY – CONTINGENCIES GENERALLY – where the trial judge awarded damages for loss of earning capacity incurred after 1 November 2021 until trial and for the period of 16 years from judgment to likely retirement – where a forensic accountant was engaged to calculate the respondent’s past and future loss of earning capacity – where the trial judge provided three reasons that warranted a reduction in the figure calculated by the forensic accountant for the period of 1 November 2021 to trial – where the trial judge allowed for a reduction in the figure calculated by the forensic accountant for loss of earning capacity for the period of 1 November 2021 to trial by 40 per cent – where the trial judge also reduced the figure calculated by the forensic accountant in relation to future loss of earning capacity by 40 per cent – where the appellant contended that a reduction of between 50 to 75 per cent should have been applied to the figure calculated for the period of 1 November 2021 to trial and to the figure calculated for the period of 16 years from judgment to likely retirement – whether the reductions applied by the trial judge were too low and therefore inadequate
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Doerr v Gardiner [2023] QCA 160
Case
[2023] QCA 160
Decision Date
CaseChat Overview and Summary
In the case of Doerr v Gardiner, the appellant challenged the decision of the trial judge that awarded damages to the respondent for injuries sustained during an assault. The appellant and respondent were married for approximately 15 years and had two children. After their separation, the respondent continued to live in the matrimonial home while the appellant moved out. The appellant was acquitted of criminal charges related to the assault, but the respondent sought damages for post-traumatic stress disorder in the Supreme Court of Queensland. The trial judge found in favour of the respondent, awarding damages of $967,113.40. The appellant appealed the decision, arguing that the trial judge erred in finding the weight and reliability of the evidence sufficient to justify judgment in favour of the respondent and that the damages awarded were inadequate.
The primary legal issue in this appeal was whether the trial judge erred in finding that the weight and reliability of the evidence before him was such as to justify judgment in favour of the respondent. The court had to consider the standard of proof required in civil cases and whether the trial judge applied it correctly. Additionally, the court had to determine whether the trial judge's assessment of damages for loss of earning capacity was adequate. The appellant contended that a reduction of between 50 to 75 per cent should have been applied to the figure calculated by the forensic accountant for the period of 1 November 2021 to trial and to the figure calculated for the period of 16 years from judgment to likely retirement.
The Court of Appeal dismissed the appeal, finding that the trial judge did not err in his assessment of the evidence. The Court found that the trial judge appropriately considered the seriousness of the allegations, the inherent unlikelihood of their occurrence, and the gravity of the consequences flowing from a particular finding. The Court noted that the DNA evidence, which indicated a likelihood of over 100 billion times that the appellant contributed to the DNA samples, was compelling. The Court also found that the reduction in damages for loss of earning capacity was not inadequate, as the trial judge provided reasoned justification for the reduction. Consequently, the appeal was dismissed with costs.
The Court ordered that the appellant pay the respondent's costs, emphasizing that the appellant's grounds of appeal were without merit and that the trial judge's decision was correctly made.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
After the defendant took his children out on a boat for the day, later that night the plaintiff’s family law solicitors arranged for the children to be recovered from the home of the defendant’s parents.The police investigation – DNA evidence and an absence of CCTV evidence After delivering his children, the defendant accompanied police to a police station where, on the advice of his legal representatives, he declined to take part in a record of interview. The defendant was charged with a number of offences for which he was eventually found not guilty following a trial. Police observed that the plaintiff had bruising on her body in the region of her upper arms, swelling on the right side of her head near the temple and abrasions on the back of her right shoulder, as well as reddish marks to her face. Photographs were taken. Police detected that the couch in the lounge room at the Apartment was out of place and they identified a piece of latex glove, a yellow plastic cup, a piece of yellow cloth and a white piece of plastic on the floor. They found a plastic container underneath the couch. Attempts to detect fingerprints did not reveal the defendant’s fingerprints at the Apartment. A DNA analysis was subsequently undertaken of a trace DNA tape lift from a piece of latex glove taken from the lounge room. This revealed a mixed DNA profile, indicating the presence of DNA from two contributors. A senior scientist in the DNA analysis unit of Queensland Health Forensic and Scientific Services, Ms Rika, estimated that it was greater than 100 billion times more likely that the defendant had contributed DNA than if he had not. She also estimated that it was greater than 100 billion times more likely that the plaintiff had contributed to the DNA than if she had not. A similar estimation was given by the same scientist from a mixed DNA profile obtained from the inside of the garden glove found near the kitchen louvres. Ms Rika explained that the DNA analysis unit treated the figure of 100 billion as a ceiling, though the statistical likelihood of a contribution may exceed that figure. Her actual estimate of the statistical likelihood in favour of the defendant having contributed DNA to the samples was much higher:1.in the case of the piece of latex glove, 5.8 multiplied by 1021; and2.in the case of the gardening glove, 5.3 multiplied by 1024. An analysis of the CCTV footage recorded by a security camera near the defendant’s residence showed that there was no recording in the period between 9.00 pm on 9 December and 6.21 am on 10 December 2013. The camera recording function was deactivated during that period.The directions given and findings made by the trial judge The trial judge directed himself that the plaintiff bore the onus of proving the material facts required to establish her cause of action on the balance of probabilities, even though they amounted to the commission of a crime. His Honour also directed himself that whether a fact has been proved to the reasonable satisfaction of the court was affected by the seriousness of the allegation made, the inherent unlikelihood of the occurrence and the gravity of the consequences flowing from a particular finding. His Honour cited well-known authorities for these directions, including Briginshaw.[5][5]Briginshaw v Briginshaw (1938) 60 CLR 336, 361-362; Helton v Allen (1940) 63 CLR 691, 712; Rejfek v McElroy (1965) 112 CLR 517; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, 449-450.
Decision
Reasons for decision
It follows that these appeal grounds must be dismissed.Conclusion Given the way in which the defendant framed his attack on appeal, the appeal should be dismissed. The defendant should be ordered to pay the plaintiff’s costs.