EA v PD NON-PUBLICATION Order

[2007] NSWSC 1387

CITATION:	EA v PD NON-PUBLICATION ORDER [2007] NSWSC 1387 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	30 October 2007 - 5 November 2007
JUDGMENT DATE :	29 November 2007
JUDGMENT OF:	Fullerton J
DECISION:	1. Verdict for the plaintiff.; 2. I award general damages in the amount of $50,000 plus interest at the statutory rate from 23 December 2001 to today’s date.; 3. I award exemplary damages in the amount of $25,000.; 4. I note out of pocket expenses are agreed in the amount of $3454.05.; 5. I order the defendant to pay the plaintiff’s costs.
CATCHWORDS:	NEGLIGENCE - Breach of duty owed by counsellor / hypnotherapist to client - Sexual exploitation - Psychiatric illness - Compensatory damages - Exemplary damages
LEGISLATION CITED:	Trade Practices Act 1974 (Cth)
CASES CITED:	Gray v Motor Accident Commission (1998) 196 CLR 1 Lamb v Cotogno (1987) 164 CLR 1 Uren v John Fairfax Pty Limited (1966) 117 CLR 118 Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71 XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448
PARTIES:	EA (Pl) PD (Def)
FILE NUMBER(S):	SC 2003/20275
COUNSEL:	P Blacket SC/W Walsh (Pl) C Hickey (Def)
SOLICITORS:	Turner Freeman (Pl) McArdle Legal (Def)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CIVIL LIST

FULLERTON J

29 NOVEMBER 2007

2003/20275 EA v PD

NON-PUBLICATION ORDER
The Court has ordered that there shall be no publication of the names of either the plaintiff or the defendant, or of any means that may identify them.

JUDGMENT

HER HONOUR:

Introduction

1 The plaintiff brings proceedings against the defendant for damages to compensate her for the injury she claims to have suffered from his sexual exploitation of her in the course of providing treatment as a counsellor/therapist between January 2000 and April 2002. She also claims an award of aggravated and exemplary damages.

2 She pleads her case, in the alternative, as a civil assault, in negligence, in contract and under the Trade Practices Act 1974 (Cth). It is common ground, however, that liability under each cause of action depends upon my being satisfied that the therapeutic relationship between the defendant as therapist/counsellor and the plaintiff as client was transgressed when the defendant initiated sexual relations. Consent arises as an issue in the case of the civil assault and, in a different way, under contract but it has no bearing on the defendant’s liability in negligence where breach of his duty of care as a counsellor/therapist is alleged. For that reason, I made it clear to the parties that since it was not in dispute that the defendant owed the plaintiff a duty of care which would be breached by his initiating sexual contact with her, if I were satisfied that this occurred, I proposed to assess the plaintiff’s entitlement to recover damages and their assessment in negligence as the sole basis for recovery. Approached in this way, the question of informed consent does not arise other than as part of the factual matrix. On the other hand, even if liability in negligence is made out, whether the plaintiff’s capacity to resist the defendant’s sexual advances was vitiated or compromised by being the subject of a hypnotic trance may arise on an assessment of damages.

3 The defendant has consistently denied that there was any sexual dimension to the treatment he provided to the plaintiff. He was first confronted with her allegations in early 2002 following a complaint lodged by the plaintiff with the Health Care Complaints Tribunal. She has complained to other institutional and professional bodies since that time. She commenced proceedings in this Court in October 2003.

4 To the extent that the plaintiff suffered injury following the defendant’s termination of the therapeutic relationship with her, whether that be in the form of an aggravation of her depression or otherwise, the defendant submitted that this was an injury for which he was not liable, as his decision to terminate the relationship was entirely in accordance with his professional obligations and, in any event, it was a decision made in consultation with his peer supervisor.

5 Were I to find, contrary to his denials, that he engaged in sexual relations with the plaintiff, the defendant did not seek to persuade me that this was other than a breach of the duty of care he owed her. No question of contributory negligence was argued. The defendant did submit however that any award of damages should be moderated by the fact that the plaintiff is now recovered from any injury she suffered when the relationship terminated and such injury as she did suffer did not prevent her from working and otherwise ably conducting her life.

The defendant’s professional qualifications

6 The defendant has no tertiary qualifications in psychology or psychiatry. He has no formal tertiary qualifications in any recognised field of medical or academic scholarship save for having undertaken a course of study in hypnotherapy one night per week for six months in 1983 with the New South Wales College of Clinical Hypnotherapists, and a course of study by correspondence with the Australian School of Hypnotherapy. He also had some informal training as a counsellor with the Uniting Church.

7 In 1985 the defendant commenced to work one day a week as a hypnotherapist/counsellor from a doctor’s practice in Wollongong. In 1993 he resigned from his position as a bank officer to take up work as a hypnotherapist/counsellor on a full-time basis. He set up practice from rooms in Figtree at that time. It was at these rooms that the therapeutic relationship commenced with the plaintiff in December 1999. He closed this practice in May 2000. He continued to treat the plaintiff at her home until February 2001 after which he resumed practice from rooms at Wollongong.

8 Before commencing part-time work as a counsellor/therapist in 1985, the defendant became a member of The Australian Society of Clinical Hypnotherapists (“the Society“), a non-profit organisation which offers membership to health care professionals and non-professionals. His membership of the Society was current when he commenced to treat the plaintiff. The Society claims that its members are trained and examined in relevant areas of study including hypnosis, psychology and counselling skills in a clinical setting. Prospective members are said to be psychologically assessed to ensure that they are suitable persons to carry out hypnotherapy. They are also required to enter into a supervisory relationship with experienced members during their training and initial period of membership. All members are sworn to uphold the professional and ethical standards provided for in the Society’s published Code of Ethics. The ethical obligations of the Society include, relevantly;

“Members must establish and maintain professional boundaries with clients. Such boundaries apply beyond the therapeutic relationship…[There is also a prohibition on exploitation] which has as its purpose any form of sexual gratification, or which may be reasonably construed as having that purpose.”

The defendant acknowledged that any practitioner behaving in the proscribed way would fairly be described as behaving disgracefully and unprofessionally.

9 Despite the fact that the defendant is not and was not a registered health professional in any recognised medical discipline, from 1993 he advertised himself as a person who was a trained and qualified clinical hypnotheraphist and otherwise skilled in general counselling for grief and other emotional trauma.

The plaintiff’s profile as a client

10 The plaintiff’s immediate motivation for seeking treatment from the defendant was because she was suffering emotional trauma in association with the breakdown of her marriage of twenty years. She gave evidence that at that time she felt guilty for having failed at her marriage whilst at the same time feeling unloved by her husband and being unable to return love. It would appear that she and her husband had not physically separated but the marriage was, for all practical purposes, at an end. Her capacity to cope emotionally with this trauma and loss was also affected by the fact that she had the care of three children (two in early adolescence) and she had recently commenced full time work with the Commonwealth Recruitment Service.

11 It was not in contest that the plaintiff was a psychologically vulnerable woman prior to consulting the defendant and that she was likely to have suffered from subclinical depression for some years. She had not, however, ever sought psychological or psychiatric intervention and had neither sought nor been prescribed prescription drugs to address her condition. She had however self-medicated from time to time with the overuse and abuse of alcohol. It would appear that her complex developmental and psychological history is in part as a result of a difficult childhood and adolescence, having suffered sexual abuse at the hands of a grandfather and her brother over many years. She also learnt as a young girl that she was adopted. Her mother told her in a most perfunctory way that she was not her biological daughter which did nothing to ensure that the plaintiff saw herself as a worthy and valued member of her adoptive family. She said she became progressively estranged from the family at a young age. She had had no counselling of any kind in regard to her early childhood abuse until she consulted with the defendant, and had no therapeutic exchange of any kind whether with a psychiatrist, psychologist or a counsellor in respect of her general mental functioning.

12 The reports from her treating psychiatrist, Dr Turnbull, and the reports from Drs Pickering and White whose expert opinions were sought for the purposes of the proceedings, illustrate the difficulties associated with attempting any definitive diagnosis of the plaintiff’s mental health at the time when she commenced the therapeutic relationship with the defendant. This is not only because there was no previous clinical history to which the doctors could otherwise refer (thus rendering them dependent on the plaintiff’s ability to report reliably as to her actions and reactions over the course of her adult life), but Dr White (whose report was commissioned by the defendant) did not see her until June 2006, over three years after the relationship with the defendant terminated and at a time when she had been under medical treatment and supervision for some years. For that reason, the extent to which the plaintiff’s emotional instability or personality dysfunction translated into any recognised psychiatric disorder prior to her consulting with the defendant and, assuming liability is made out, the extent to which his conduct was causative of any mental illness or whether a pre-existing illness was exacerbated by his mistreatment of her, is problematic. I will return to consider these questions later in this judgment.

The therapeutic relationship

13 The defendant conceded that he was well aware from very early in the course of the therapeutic relationship that the plaintiff was emotionally vulnerable and in many respects a needy and troubled woman. A cursory read of the correspondence she forwarded to him after each successive consultation from early January 2000 provided, in my assessment, the clearest evidence of the extent to which she was desperately in need of professional guidance and support from a trained and qualified therapist. The defendant also conceded that he was aware by April 2000 that she had suffered childhood sexual abuse and that this was a source of unresolved conflict in her emotional life.

14 According to the plaintiff, the correspondence she sent as a matter of routine to the defendant was either hand delivered by her or mailed to his consulting rooms after each session. For the period from May 2000 to February 2001, when he saw her at her home, she would on occasions provide the correspondence immediately prior to the session commencing. The defendant gave evidence that he used the content of the correspondence to structure his counselling sessions with her. The correspondence was retained by him and comprised the entirety of his client file save only for a pro forma sheet recording the plaintiff’s personal details. He did not take a patient history from her and maintained no clinical notes of any kind. Accordingly, there is no objective record by which the plaintiff’s progress as a client under the defendant’s clinical care might be gauged and, as importantly, no record of the therapies he utilised as part of his treatment regime. Of crucial significance, there is no note of any kind supportive of the defendant’s claim to have terminated the therapeutic relationship in March 2002 on the advice of his own therapist and, accordingly, no record of the steps he claimed to have taken to ensure the plaintiff understood the reasons for termination. The circumstances in which the relationship was terminated were in dispute.

Did sexual relations take place?

15 It will be necessary to refer to some of the plaintiff’s correspondence in detail since it is by reference to it, in the context of the sworn evidence concerning it, that I have come to the settled view that sexual relations were initiated by the defendant as and from 31 July 2001 and continued with his involvement and encouragement until March 2002. Although, in general, this correspondence is supportive of the plaintiff’s evidence concerning the nature and extent of the sexual relationship (and that it ceased and the therapeutic relationship ceased on her initiation) it provides no support for her claim to have been under hypnosis when the sexual touching commenced in July 2001, or during any of the various sexual exchanges that occurred thereafter.

Was the plaintiff hypnotised?

16 Whether the plaintiff was ever subjected to hypnosis by the defendant was another matter in issue between the parties. As I noted earlier, the resolution of that question is not determinative of the defendant’s liability in negligence. What is determinative of liability is whether he had sexual relations with a client to whom he owed a duty of care. As stated above, I have already decided that question in the plaintiff’s favour. The extent to which the defendant employed hypnosis to prepare or ‘groom’ the plaintiff to receive his physical advances, and thereafter to initiate the sexual contact without resistance, will however have a bearing on the assessment of damages. It may also impact on an assessment of exemplary damages should I be satisfied that a proper basis to award them has been made out. It is for these reasons that the issue falls for determination.

17 Although the defendant held himself out to be a hypnotherapist, and had apparently used hypnosis extensively in other aspects of his practice, he denied utilising it in his treatment of the plaintiff. Along with much of his evidence, his evidence on this aspect was unsatisfactory. He was unable to describe with any clarity what therapies he used in preference to hypnosis, or why he did not use his claimed for expertise as a hypnotherapist, save only that he decided to address her reported feelings of stress, confusion or depression with some relaxation techniques accompanied by music. According to him, the relaxation techniques involved the plaintiff sitting and progressively relaxing her body from the toes up to the head and neck at his suggestion. He was emphatic that this did not involve physical touching of any kind or that he ever spoke to her about ‘energy transference’ from his body to hers during the course of relaxation. The plaintiff also gave evidence that in the first session she came to learn that one of the methods that the defendant proposed to employ in counselling her, in addition to hypnotherapy, was to transfer or generate energy by placing his hands over various zones of energy in the body referred to as “chakras”.

18 The defendant also said that he used different ‘modalities of counselling’ depending on the person being counselled. He was unable to nominate what ‘modality’ was used in the plaintiff’s therapy. It was not until he was confronted in his evidence with a reference in one of the plaintiff’s letters to their respective ‘physical sides’ being a ‘form of freedom’ that ‘sustains and nourishes’ (a letter sent on her account after the sexual activity commenced and a letter he does not deny receiving) that he volunteered that another aspect of the therapy he provided involved the Feldenkrais method. I reject his attempts at explaining this letter in this way as transparently untrue. I also reject his denials that sexual activity, constituted by fondling the plaintiff’s breasts, was first initated by him in the course of a so-called energy transference session where he was purporting to transfer energy to her heart.

19 From that finding alone, however, I am unable to conclude that he subjected the plaintiff to hypnosis at any time, or that he did so in order to render her pliable to his suggestion and to make it less likely that she would repel his sexual advances. Given the plaintiff’s tendency to emotional hyperbole, evidenced not only in her writing but also at times in the evidence she gave before me, I am also not persuaded that her belief that she was hypnotised in most, if not all of the 52 sessions with the defendant over a two year period, is a reliable evidentiary foundation upon which to decide the question. That said, her description of what she felt and experienced under what she thought was a hypnotic trance is not irrelevant to resolving the question even if it is not definitive of it. She said that she understood that the defendant styled the sessions to relax her and to transport her into a hypnotic state. She said that in the course of the consultations she felt that she was somewhere else. She said that she felt euphoric. She gave evidence that the defendant suggested that after his sessions with her that she not drive for a period of time.

20 The evidence from Dr Walker, a highly qualified and published practitioner in the field of hypnotherapy, gave me considerable insight into what hypnosis can achieve in the hands of a trained, skilled and responsible practitioner and the purposes to which hypnotherapy can legitimately be put in clinical practice. Dr Walker’s definition of hypnosis is:

“…a complex change in consciousness brought about in the context of a very special relationship, where the subject hands over the directing of consciousness to another person, the hypnotist. The alterations in consciousness result from complex shifts along a number of the dimensions of consciousness.
The subject gives up consciously monitoring his/her own experience and moves into passive-receptive mode. Attention is maintained on just following the hypnotist’s suggestions, and experiencing what is suggested. As the subject goes further into hypnosis, he/she becomes more suggestible and awareness of sensory or mental input unrelated to this diminishes.
Hypnotisable subjects already have capacity for involvement in imagined content, but the further a subject goes into hypnosis, the more vivid, subjectively real and engaging the suggested experience becomes. Awareness of the passage of time is changed, probably because the subject is not attending to the normal cues by which we judge time. Self watching and self monitoring (critical self awareness) fade to almost nothing.”

21 When Dr Walker was taken by me to the detailed account the plaintiff gave of the type and duration of sexual activity that she participated in with the defendant, including acts of fellatio, mutual masturbation and what she described as ‘simulated sexual intercourse’, Dr Walker expressed uncertainty as to whether this was consistent with the conduct of a person under hypnosis. What she was able to say however, and something which was not challenged by the defendant, was that in her assessment the plaintiff was a highly hypnotisable subject. She scored 33/34 on the Tellengen Absorption Scale, a test designed to centre on a subject’s capacity for absorption, for loss of self and imagination. Self evidently, the fact that the plaintiff is a person who is a highly hypnotisable subject cannot be definitive of whether the defendant ever used hypnotherapy in his treatment of her.

22 In the result, and having regard to Dr Walker’s evidence to the effect that the distinction between a deep state of relaxation and hypnotic trance is a question of degree, and my own doubts as to the plaintiff’s reliability on the issue, I am not satisfied that the sexual activity that developed from July 2001 took place when the plaintiff was under hypnosis. I am satisfied, however, that the defendant did use relaxation techniques and so-called ‘energy transference techniques’ to initiate the sexual contact and that this was in the context of having lured her over the course of many months into accepting and trusting that his sole aim and objective as her treating therapist was her emotional health and spiritual welfare. On any view this was exploitative of her.

23 I am also satisfied that the plaintiff initiated sexual activity with the defendant on various occasions after July 2001 but by this time, at the very latest, the therapeutic relationship had completely broken down. This is patent from the correspondence that she forwarded after this date to which I will refer shortly. In fact, I am satisfied that an objective and disinterested professional review of the plaintiff’s correspondence well before July 2001 would have necessitated the cessation of the therapeutic relationship in discharge of the duty of care that a competent therapist in the defendant’s position owed a client. Quite apart from what that correspondence reveals about the defendant’s disclosures of his feelings for her and his sharing with her of emotional stressors in his own life, her attachment to him was patent. According to Dr Pickering, from a clinical perspective, this exchange was contrary to a healthy therapeutic environment encouraging as it did an illusion of real intimacy between therapist and client.

24 I am satisfied that it was against this background that the defendant breached his duty of care to his client in July 2001 by making what I consider must have been a conscious and considered decision to introduce overt sexual activity into the therapeutic relationship and then to maintain that relationship at the plaintiff’s expense. In effect, he sought to derive sexual gratification from her in an impermissible and covert way.

The correspondence from the plaintiff

25 The plaintiff tendered in evidence the entire course of the correspondence she routinely forwarded to the defendant from January 2000 through to March 2002. By reference to the dates on the correspondence, it is clear that she would sometimes forward more than one letter between fortnightly sessions. In general, the correspondence reads like a stream of consciousness where the plaintiff details her thoughts and feelings, fears and desires, her perceived strengths and weaknesses and, as time passed, her assessment of the defendant’s strengths and weaknesses and, with increasing frequency and in lavish tones, her high regard and respect for him and her care and concern about his welfare. This correspondence comprised 235 pages of typescript in single spaced format.

The correspondence the defendant denied receiving

26 The defendant claims that the only correspondence he did not receive from January 2000 to March 2002 was that dated 1 August 2001, 20 August 2001, 23 August 2001, 16 September 2001, 12 November 2001, 22 November 2001, 27 November 2001, 31 November 2001 (sic), 10 or 18 January 2002 and 13 March 2002. This correspondence (a representative sample of which is set out below) is of considerable significance because of the way the plaintiff refers to the defendant and the way she describes their exchanges after the time when the sexual relationship commenced. Although the sexual references are euphemised the innuendo and sexual suggestion in the correspondence is unmistakable.

27 I am satisfied that the defendant has falsely denied receiving this correspondence not only in the proceedings before me but to the Health Care Complaints Commission. I am also satisfied that his false denials were motivated by a desire to avoid acknowledging the breach of his duty of care to her and to avoid civil and other sanction. He was similarly motivated to lie to the Australian Society of Clinical Hypnotherapists when the plaintiff complained to them and to the Uniting Church. I should make it clear that the way in which these complaints were dealt with by these institutional and professional bodies have had no bearing on my finding as to the defendant’s liability in negligence. The material was tendered by the plaintiff in order to ground her claim for exemplary damages. I will refer to this material in that context later in this judgment.

28 The significance of the letter of 1 August 2001, the first that the defendant claimed not to have received, cannot be overstated. It refers expressly to the day before as the day when ‘boundaries were crossed’. She went on to say the following:

“I wrote this today while all was clear in my mind. Yesterday occurred. We both chose a path that crossed boundaries. Do not recriminate yourself. Had either of us chosen control, that would have eventuated. We didn’t. There was a reason for each of us to choose what occurred. It confirmed for me that which I knew; for you [P] it confirmed that which you need to know… You have in the last year journeyed with me and shown me essences of being, spiritual worlds I have always known have existed, yet have been unable to find, hidden in the depths of my soul, considered non-existence by others. Yesterday we travelled to another realm. For me it was good for it tied the loose ends; for you [P] it may have opened your personal Pandora’s Box, closed behind those eyes. For me I am glad you trusted me enough to take a step outside whatever you hold hidden. You have nothing to fear from me because I chose the path I took yesterday…There was much more I would have liked to do for you and with you yesterday, but I know that for you and me enough had occurred… So don’t feel responsible or guilty for that which occurred. For I don’t and if you do then I will too. I have known for a while that what occurred was destined to happen.”

29 According to the plaintiff, it was at the scheduled appointment on 31 July 2001, the day before this letter was written, that the first sexual contact occurred. The defendant did not dispute consulting with the plaintiff on 31 July 2001.

30 The balance of the correspondence that the defendant denied receiving is in a similar vein to that extracted above. For example:

16 September 2007
“It was nice to be kissed, held and touched, to feel both a sensual and sexual joy/release… and while all this is real and our friendship within the confines of the room is real and personally and emotionally we believe it to be open, honest and genuine, it is surreal, for it doesn’t exist outside the four walls. For you [P] and for me to a degree this past month has raised some very tricky and personal questions and/or dilemmas… Unless I have misread you, I don’t believe that what has happened was an easy or light decision for you; if it was then I have misread you badly.”

12 November 2001
“I feel that you and I have become a little lost this last month, focusing on physical satisfaction (although it began on an emotional and spiritual level). I want to rebuild and strengthen our spiritual link, expand our emotional understanding and acceptance, yet I see how our physical link has to some extent confused this choice. While you [P] overstepped your professional ethos, I allowed and encouraged that to happen even though I knew that it could bring disharmony to yourself and myself.”

22 November 2001

“Months ago when the situation between us arose I felt an amazing surge of energy, souls within souls beings within beings. I knew it felt right and yet I knew it was wrong. You were married, I was your client, you were in need of love caring and understanding as was I… But you only knew me and I you within the boundary of four walls and the boundary of our thoughts. As it continued it started to become surreal. My head wanted to stop, my heart didn’t. I could sense things within you a conflict for me it was confusion. I am still as unsure of what you really think, as I am of what I really feel. I feel our friendship is bound by walls, walls that you control [P], and I am no longer sure how safe I feel or how grounded I can become in a place where I have no control… I just hope you are not doing all this to develop my ability to make decisions, that would not be fair, for you would be trafficking in mine and your emotions.”

31 November 2001

“I am as confused as you are [P] as I thought I had control. But the passion is real, the link is real. We tell ourselves no, yet we both want to. We know that to orgasm together and inside each other would be explosive and open us to feelings neither is yet ready for… We know we shouldn’t, yet each time we get closer, and yet we both know we must hold back. Your marriage and your fear holds you back as does my own desire for self preservation.”

The correspondence the defendant admitted receiving

31 The defendant did not deny receiving all of the correspondence sent by the plaintiff after July 2001. He accepted that he received correspondence dated 17 August 2001, 10 September 2001, 17 September 2001, 29 September 2001, 26 December 2001, 29 January 2002 and 13 February 2002. When pressed to explain the content of some of this further body of correspondence, in the context of what he claimed was a perfectly appropriate therapeutic relationship until a letter of 26 December 2001 (“the Christmas letter”) was opened by his wife, his explanations were entirely lacking in candour. For example, in correspondence dated 17 August 2001 the plaintiff wrote:

“It is difficult to accept that what we are doing is so opposite to many social mores , beliefs, and values, yet it seems right for you and for me, as if the spirit of all spirits accepts the journey we have begun… I am very touched that you allowed me in and let me massage and comfort your soul , as you do for me, that there is trust and safety.” (Emphasis added)

32 When asked to explain what he understood the plaintiff to be referring to in this extract when she referred to them acting ‘contrary to social mores’, the defendant said that it was a reference to the fact that they together spoke to plants while the reference to massaging his soul was similarly a reflection of their affinity with nature. I reject these explanations as palpably untrue. I am well satisfied that the defendant knew that what the plaintiff was referring to was the fact that the therapeutic relationship had taken on a sexual dimension.

The Christmas letter

33 The Christmas letter is unique because it was intercepted by the defendant’s wife, having been sent by the plaintiff to the defendant’s home. This letter contained the following:

“The hard part is that I let you into myself and when I opened up you trod on my weaknesses; and my head, my professional experience, my logic tells me to close all contact for I wonder if this was indeed the first time such a thing happened and I were and I indeed the first victim. You used your power against me, that once my freedom of self my confidence growing I wonder if you wanted to destroy it.”

34 I accept that this letter precipitated the defendant seeking peer supervision from Dr Audrey Jones, however for reasons I will make clear in a moment, I consider he did so on a pretext. I strongly suspect that the defendant’s motivation in seeking out Dr Jones was his fear of exposure in circumstances where the letter was intercepted by his wife. Furthermore, given my expressed doubts as to the defendant’s probity as a witness generally, and in the absence of having heard from his wife, I reject his claim that he discussed the Christmas letter with his wife for the purpose of seeking her views as to whether the concern he felt about the appropriateness of the plaintiff’s expressed feelings for him on reading the letter were well founded. I reject this account because even the most casual and uninformed reader of the Christmas letter would be in no doubt that the writer shared an intimate and close relationship with the person to whom the letter was sent. That conclusion is gainsaid when read in the context of the letters that preceded it.

35 The defendant had previously received counselling from Dr Jones when a complaint from another female patient in May 2000 caused him to close his Figtree practice. [There was no objection to the admission of the evidence of the earlier complaint. I did not receive it under s 97 or s 98 of the Evidence Act.] The earlier complaint involved generalised allegations of sexual misconduct but was not pursued by the complainant. It is not clear from Dr Jones’ clinical notes, however, that the defendant informed her in May 2000 that he was closing his practice as a result of a complaint or, if he did, that the complaint was of a sexual nature. I am also satisfied that after detailing a litany of physical complaints and complaining of depression, Dr Jones’ notes simply record:

“Particular patient upset – emotionally attached
Somebody hurt – lady”

36 In his evidence before me the defendant persisted in claiming he knew nothing of the details of the complaint from his previous client other than that it was sexually based. It is difficult to accept his evidence in this regard. The fact that the two pages of his 2000 diary which would likely have recorded the nature of the complaint before it was withdrawn had been torn from his diary adds to my concern. He could offer no explanation of any kind for his diary being damaged in this way.

37 I am compelled to the view that the defendant intentionally withheld the truth about his dealings with the former client from Dr Jones in May 2000, well knowing that he had acted in an inappropriate way towards her. I am satisfied that it was only 18 months later, when the Christmas letter arrived, that the earlier complaint was detailed in his consultation with Dr Jones. In that connection, Dr Jones’ notes record what on any view is a reference to the earlier complaint:

“Making advances to [P] ….
Would phone Janice and talk to her
Contacts hospital said he sexually abused her”

38 I do not accept the defendant’s evidence that he sought out Dr Jones because the content of the Christmas letter alerted him, for the first time, to the fact that the plaintiff had psychologically based attachment or transference issues and that she should be referred to another therapist, or further that he sought genuine guidance from Dr Jones as to how to affect the termination of the therapeutic relationship with her without putting her at risk of psychological damage. When compared with earlier correspondence the Christmas letter was mild in terms of the way the plaintiff expressed her feelings and desires for the defendant and her ongoing concern at the propriety of sex entering the therapeutic relationship. I am of the firm view that he sought out Dr Jones in January 2002 in order to camouflage the real nature of his relationship with the plaintiff so as to garner peer support in the event that she disclosed the sexual relationship to his professional association or to the Church. Furthermore, I am satisfied that he informed Dr Jones of the earlier complaint for the first time in that context. I have come comfortably to that view as a result of what I regard as a most revealing answer given by the defendant in cross-examination. When asked why he saw the need to refer to the earlier complaint when he sought guidance from Dr Jones as to how to deal with the Christmas letter he said:

“because of the similarities [in the complaint], so close to each other. It was devastating.”

When he was reminded that the plaintiff had made no complaint about his sexual misconduct in the Christmas letter he sought to withdraw his answer.

Who terminated the relationship and why?

39 According to Dr Jones’ notes, she advised the defendant in January 2002 that the therapeutic relationship with the plaintiff should be terminated on the basis that the Christmas letter exposed transference and counter transference issues. It cannot be overlooked that Dr Jones was deprived of access to the correspondence that preceded it as extracted earlier in this judgment because the defendant elected not to reveal it. While Dr Jones’ notes reflect the defendant’s desire that the termination be staggered over four weeks I am satisfied that he did nothing to terminate the relationship at any time. To the contrary, I am satisfied that he continued the therapeutic relationship (or what remained of it) and that he did so for his own continuing sexual gratification and, further, that it was the plaintiff who terminated the relationship in March 2002 when she realised his motivations in pursuing a sexual relationship were entirely self interested. She came to this ultimate realisation by the nature of the sexual exchange at their last consultation on 12 March 2002.

40 I accept her frank and telling evidence that as each month passed from July 2001, and as the sexual relationship continued, that she came to fear she was being exploited by the defendant. I also accept that she desperately hoped this was not the case and further, that even if the therapeutic relationship came to an end, the sexual relationship would survive and continue. Whatever the foundation for her belief and however fanciful it may have been, it is clear that after July 2001 when the defendant initiated sexual activity, she became progressively infatuated with him. To the extent that her feelings towards him were amorous before that time, I am satisfied that he actively and selfishly fostered her attachment to him with the expectation that she would meet his emotional needs and thereafter his sexual needs.

41 The following extract from the plaintiff’s correspondence of 23 March 2002, the last letter she forwarded to him, both exemplifies her resolve to end the therapeutic relationship and her hope that he would sustain the sexual relationship outside therapy. It also reveals the extent to which her idea of the relationship was distorted and even exaggerated.

“The Tuesday I recognised where you were. The sludge I felt inside your body was there it was real and it was in the area I felt and you knew I felt it. The energy between us flowed and I felt it but it became sexual and this stopped me from helping you and it kept you safe. I cannot deny that I feel very strongly for you [P] and although it has a physical-ness, that is not what attracts me. I have met no one who has ever touched my emotional and physical soul as much as you have and if I am not mistaken you feel the same way. If this is not the case then all that has occurred has been simply a physical sexual need on your part then if so I have totally misjudged who I have sensed you to be. And if that is the case then I must know, for my reality and for yours, and for the truth…….So it is goodbye, no more sessions. This is so sad in that by letting go I will lose a fellow journeyer and you will lose the one person who can help to set you free…… You are and always will be my most special friend but I need to know the truth. Your call .” (Emphasis added)

42 Certain evidence that was led following an application to reopen the plaintiff’s case (an application that was not opposed) leaves me in no doubt that it was the plaintiff who ended the therapeutic relationship and that the defendant’s evidence to the contrary is utterly untrue. The plaintiff’s solicitors discovered an appointment card within the materials assembled for the purpose of tender in the plaintiff’s case (but overlooked it at the time of tender). On this card was a date two weeks from the last session the plaintiff attended with the defendant on 12 March 2002, the session that was the subject of the letter extracted above. The plaintiff gave evidence that the defendant made this appointment for her and gave her the card but that she unilaterally decided later that she would sever the therapeutic relationship and accordingly did not attend the appointment. The defendant’s evidence as to why he would complete an appointment card at the last session is less than compelling. He claimed that at the end of the session he went to his diary, completed the appointment card and handed it to her before he realised that the session just concluded was the last. He was unable to explain how this could sensibly have occurred in circumstances where, if his evidence was to be believed, the entire session would have been structured around and referable to formalising the end of a therapeutic relationship at that time of over two years standing.

43 This finding provided an additional basis upon which I found in the plaintiff’s favour on the primary question as to whether there was an improper sexual relationship in the course of the therapeutic relationship. This was because it revealed to me that, contrary to the position the defendant took with Dr Jones, he had no intention of forgoing his own sexual gratification and ending the therapeutic relationship with the plaintiff and that his presentation of her to Dr Jones as a client who had inappropriate feelings for him, unprovoked by his own improper behaviour, was a ruse.

The plaintiff complains

44 The plaintiff first lodged a complaint with the Health Care Complaints Commission (HCCC) on 15 April 2002. She also complained to the Uniting Church of Australia on 26 April 2002. A concurrent complaint was also made to the Australian Society of Clinical Hypnotherapists (ASCH) sometime in April 2002. Each complaint was detailed and in writing.

The Health Care Complaints Commission

45 The plaintiff’s complaint to the HCCC was brought to the attention of the defendant on 3 May 2002. However, the HCCC declined to investigate the complaint on the grounds that the defendant was not a registered health care practitioner. On 20 May 2002, the HCCC received a letter from the plaintiff requesting a review of its decision to which the HCCC acceded the next day. On 12 August 2002, the reviewing officer, David Moss, confirmed that the HCCC itself did not have the power to deal with the complaint.

The Australian Society of Clinical Hypnotherapists

46 The ASCH wrote to the defendant on 22 April 2002 informing him of the complaint. On 2 May 2002, the defendant’s solicitor wrote to the ASCH denying that anything improper had occurred during the currency of his therapeutic relationship with the plaintiff. On 16 June 2002, the ASCH convened a meeting attended by the defendant and his solicitor, members of the ethics committee of the Society and an independent observer. The committee made it clear to the defendant that it had the responsibility to uphold the ethical standards of the ASCH, to thoroughly investigate every complaint and to provide guidance suspension, discipline and withdrawal of membership to any member in breach of the guidelines. It also pointed out that these sanctions had no force in the public domain. The defendant responded to the complaint as being untrue. He unequivocally denied the allegations made against him and said that the events detailed in the complaint were spurious. When asked what he thought the plaintiff’s motivation might be in making the complaint he claimed it sourced from anger towards her husband and with other people and that she needed a psychologist for long-term help. The defendant also sought to persuade the committee that since the HCCC had dismissed the complaint there was no substance to it. The committee rejected that approach. The outcome of the plaintiff’s complaint to the ASCH is unclear from the evidence.

The Uniting Church of Australia

47 The Illawarra Presbytery received the plaintiff’s complaint at first instance. The matter was then referred to the General Secretary who subsequently referred the matter to the Synod Sexual Misconduct Complaints Committee (SSMCC). From 26 August 2002 onwards, the Chairperson of the SSMCC, Keree Louise Casey, wrote to members of the church including the defendant and advised them that she had convened a panel to investigate the plaintiff’s complaint. On 24 September 2002, the SSMCC, in a preliminary meeting, decided that the plaintiff’s complaint constituted an allegation of sexual misconduct in particular that the complaint was one of the sexualisation of a relationship of responsibility warranting an investigation. The defendant’s solicitors wrote to the Uniting Church appealing their decision to investigate the complaint stating that the HCCC and the ASCH were the appropriate professional bodies to conduct such an investigation. On 11 December 2002 the defendant through his solicitors, appealed the decision of the SSMCC to investigate the plaintiff’s complaint. There was a protracted appeal process where the defendant sought to prevent the church from investigating the complaint. In the result, after the Church resolved to continue with the investigation and notified the defendant of its intentions in that regard, the defendant refused to cooperate. On 15 April 2004, the church issued its final determination. The church found that sexual misconduct did occur and that it occurred in circumstances where “[the defendant] abused [the plaintiff] by exploiting the power he had as a therapeutic practitioner and as a Uniting Church Elder”. The defendant appealed this determination in a 13-page letter dated 22 April 2004 to the church wherein he argued that the church did not have jurisdiction to hear the complaint as the alleged behaviour occurred within a non-church professional relationship. He further argued that the church was barred from hearing the complaint since the matter had been investigated by his professional association and to do so would constitute a breach of natural justice. An appeal committee was then constituted, however the evidence, as far as the subpoenaed material is concerned, does not disclose whether this committee ever heard the appeal or whether it made any determination. The defendant has withdrawn from his church since that time.

48 The defendant acknowledged in his evidence that from early 2002 to the present time, both directly and through his solicitors, he has portrayed the plaintiff as a liar and an agitated, unbalanced person who has made baseless allegations of misconduct against him. Somewhat curiously he said in response to a question put to him in cross-examination that he apologised for perpetrating a great injustice upon her by his conduct if the allegations had any substance. Whatever the defendant meant by this answer, I do not regard it as in any way ameliorating his conduct towards her when she sought the intervention of various institutional bodies.

The plaintiff seeks medical assistance

49 After the termination of the therapeutic relationship it would appear that the plaintiff first consulted with a health care professional when she consulted with Ms Leicester, a psychologist, on 2 May 2002. In the first consultation, the plaintiff disclosed that she had engaged in a sexual relationship with her therapist and that she had terminated the relationship after she eventually came to realise that he was exploiting her by seeking his own sexual gratification at her expense. She reported a deepening level of depression and exhaustion and said she felt suicidal. She told Ms Leicester that her behaviour had become erratic and that she had been drinking to excess and experiencing blackouts. She reported she had difficulty trusting others and believing them and that she felt isolated and lonely. This was consistent with the evidence that the plaintiff gave in the proceedings before me. In Ms Leicester’s view the plaintiff was clinically depressed at the time of the first consultation, a condition which had not abated at a further consultation on 31 May 2002. She also noted that the plaintiff reported she was taking days off work because of the depression.

50 In Ms Leicester’s opinion, the improper sexual relationship exacerbated the plaintiff’s pre-existing but sub-clinical depression resulting in suicidal urges and, further, that the termination of the relationship left her confused which reinforced her negative view of herself. Ms Leicester was gravely concerned at the time of her consultations with the plaintiff that her untreated clinical depression may result in increasing isolation and, moreover, that if she continued to use alcohol to self-medicate her condition may become even more problematic.

51 In September 2002, the plaintiff consulted with Dr Kahn, a general practitioner, who prescribed Aropax for treatment of generalised anxiety. Dr Kahn ultimately referred the plaintiff to Dr Turnbull, a psychiatrist, as a result of the persistence of her complaint and condition. It was Dr Kahn’s view that the plaintiff was suffering from an acute depressive state. He was concerned enough in the circumstances to refer her to a treating psychiatrist to obtain his opinion as to diagnosis, prognosis and causation. Dr Kahn notes that the plaintiff did not make an appointment with Dr Turnbull immediately but by February 2003, when her symptoms had not resolved, she did act on the referral. It was only at a consultation in February 2003 with Dr Kahn that the plaintiff informed doctor of the sexual relationship that had terminated almost twelve months earlier.

52 Dr Turnbull reported to Dr Kahn in March 2003 that whilst the plaintiff had a rapid response to Aropax, there was a gradual recurrence of symptoms and that there was a probability she was suffering from a bipolar spectrum disorder for which additional medications should be prescribed before a changed pharmaceutical regime was instituted. The pharmaceutical regime altered over succeeding months in 2003 until she was reviewed by Dr Turnbull in February 2004 at which time her condition was generally stable. In March 2004 however he observed that:

“she seems to have slipped back a little with escalating symptoms of depression and that her pharmaceutical regime was moderated to take account of that.”

By September 2004, over two and a half years after the termination of the therapeutic relationship, in Dr Turnbull’s view, the plaintiff’s condition had stabilised although not without the need for review and the maintenance of a pharmaceutical regime.

53 Dr Turnbull furnished an expert’s report in September 2003 where he expressed the view that the origins of the plaintiff’s then current depressive episodes were complex, namely, sexual abuse in childhood interacting with more recent inappropriate sexual behaviour from a person from whom she sought treatment. He was of the view that management of her condition would be complex and whilst medication would continue to play some part it would not be sufficient in itself. Dr Turnbull was not of the view that her prognosis was “particularly good” but that appropriate medication and psychotherapy will give her the best chance of a full recovery. He identified a high risk of relapse.

54 Ms Meagher, a registered psychologist, also provided an expert’s report prepared after consulting with the plaintiff from October 2004 over successive periods up to and including November 2005. While Ms Meagher deferred to the plaintiff’s treating medical practitioners on the issues of diagnosis and prognosis, she expressed the unqualified opinion that the plaintiff’s periods of depression and suicidal ideation in the past were consistent with the psychological effects of a violation of professional boundaries and the exploitative sexualisation of a therapeutic relationship in which the plaintiff had the expectation the she would be treated in an ethical and appropriate manner while receiving treatment.

55 The final report tendered by the plaintiff was under the hand of Dr John Pickering, a consultant psychiatrist who first saw the plaintiff in February 2003. This was prior to her first consulting with Dr Turnbull. I note that in that connection there is no updated report from Dr Pickering and that any question of ongoing damage must be resolved by reference to other expert opinions to which I have already referred and to the plaintiff’s own evidence.

56 After taking a detailed history from the plaintiff in terms that are not in any material sense inconsistent with her evidence before me, Dr Pickering noted that in the period immediately following termination of the relationship, the plaintiff experienced feelings of worthlessness, feeling like a ‘sexual toy’ which in turn gave rise to wakened feelings that she had suffered in her childhood. He also noted that she reported uncontrolled binge drinking and suicidal thoughts. She also felt guilty which gave rise to increased levels of anxiety and fatigue. She experienced difficulty sleeping which converted on occasions into sleeping excessively, sometimes spending an entire weekend in bed. He also noted that the acute depressive symptoms persisted for about six months after which time they seemed to improve. This was coincident with the medication prescribed by Dr Kahn. Dr Pickering noted that the plaintiff reported improvement on Aropax although she also reported that it took some time for her to adjust to the pharmaceutical regime imposed by Dr Khan and monitored thereafter by Dr Turnbull.

57 In diagnostic terms, Dr Pickering reported that there was no evidence of depressed mood during his lengthy consultation with her and that she did not display any major psychological pathology. On the basis of reported history and his own analysis, he considered that the plaintiff satisfied the DSM IV criteria for having suffered a major depressive episode in the six months following the termination of her therapy with the defendant. Dr Pickering was of the view that the disorder arose principally from her response to the realisation that her therapist had been exploiting her, and that while her predisposition to being depressed may have been present in relatively minor form, he regarded the defendant’s conduct toward her over an extended period after the relationship became sexualised as the “substantial cause of her major depressive disorder single episode (or reactive depression).” Dr Pickering also expressed the view that whilst not a psychiatric diagnosis, her increased alcohol consumption was causally linked to her termination of her relationship with the defendant.

58 Generally, however, Dr Pickering was of the view that the plaintiff’s prognosis was very good in the long term and that, as at September 2003, the acute depressive episode had largely remitted although he acknowledged that residual behaviour and psychiatric symptoms would require ongoing supervision by a consultant psychiatrist. Thus, the importance of Dr Turnbull’s ongoing review of her progress as reflected above. Importantly, Dr Pickering was not of the opinion that the plaintiff’s experience had caused her any loss of a chance of normalising her sexual feelings, or that it would be likely to lengthen any therapy she might have to resolve sexual difficulties, and that, in the main, there was nothing to suggest that there were any long-term implications detrimental to her enjoying a viable heterosexual relationship in the future.

59 I should note that in assessing the damages I have disregarded the views expressed by Dr White, forensic psychiatrist, since each of his three reports tendered by the defendant are predicated upon Dr White being of the view that the plaintiff’s psychiatric symptoms (as reported upon by the various health care professionals reviewed above) are a result of the defendant’s termination of the therapeutic relationship in March 2002 and that her perceived abandonment by him caused her to decompensate into a major depression. In effect, Dr White rejected her account of having been engaged in a sexual relationship with the defendant at all. That said, Dr White’s analysis of her as “a woman of long standing psychological vulnerabilities who appears to have overvalued the therapeutic relationship” is consistent with the views of the experts upon whose evidence I do rely.

What injury has the plaintiff suffered?

60 I am satisfied that as at October/November 2007, the date of hearing, the plaintiff suffers no residual injury that can be attributed to the defendant. She is no longer taking anti depressant medication or indeed medication of any kind. She is not participating in any counselling or receiving therapy of any kind. While Dr Turnbull was concerned in his report of September 2003 to identify the potential for a relapse of her condition as a result of fresh trauma, in the absence of any evidence allowing me to assess that risk, and in circumstances where there has been no re-presentation of symptoms of acute depression since March 2004 much less the need for her to seek any treatment, I am not satisfied as a matter of probabilities that I should award damages in an amount that would allow for the potential for future relapse.

61 It would also seem to be common ground that while the plaintiff suffered a debilitating illness to a greater or lesser degree in the period from March 2002 through to November 2004, she remained in full-time employment as an Employment Services Consultant and has been promoted since that time. Accordingly, there will be no award for past economic loss and no allowance for future economic loss. Out of pocket expenses are agreed.

General damages

62 In assessing the plaintiff’s entitlement to general damages I am concerned to emphasise that the sum I propose to award is purely compensatory being directed to the pain and suffering associated with the identified psychiatric injury the plaintiff suffered when the relationship ended. While she was certainly predisposed to succumb to the onset of severe symptoms of depression by March 2002, if for no other reason than how she presented when she first consulted to the defendant, there is nothing to indicate she would have developed the acute depressive illness and its sequelae as evidenced in the medical reports, were it not for the sexualising of the therapeutic relationship. It would also seem from at least the sending of the Christmas letter she was experiencing severe symptoms of depression (although not seeking treatment for them) and that this was itself a reflection of her unhealthy attachment to the defendant.

63 That said, the award I make is moderated by the fact that the plaintiff was a willing, energetic and adult participant in the sexual relationship during its currency from July 2001 for some months until March 2002. There is no evidence before me that would enable me to come to the view that she was coerced to participate in any of the sexual encounters even if she agreed to participate with the hope in her own mind that the relationship would continue and that the defendant would leave his wife to be with her. That is not to diminish my finding that the defendant’s conduct towards her was exploitative, unethical and opportunistic and that in initiating and maintaining sexual relations with her he abused his position of trust. These findings are however more appropriately addressed when considering exemplary damages.

64 I award the amount of $50,000 for past general damages with an entitlement to interest on that amount at the statutory rate from December 2001 to judgment. I nominate December 2001 as the date from which interest should be calculated since I accept that it was likely at this time that the plaintiff was descending into the depressive illness the subject of diagnosis in the following year.

Aggravated damages

65 In contrast to exemplary damages (to which I will refer presently) aggravated damages are also compensatory in nature but are awarded for injury to the plaintiff’s feelings caused by insult and humiliation (see Lamb v Cotogno (1987) 164 CLR 1 at 8). That is, they are distinct from and additional to the pain and suffering to which general damages are referrable. The plaintiff submitted, in effect, that she is entitled to an additional sum by way of aggravated damages because the circumstances of the defendant’s breach of duty were demeaning to her and his conduct towards her was affronting and insulting. For the reasons I outlined in [63] above I am not satisfied that the plaintiff has made out a case for aggravated damages. However disappointed, hurt and angry she was at being co-opted into a sexual relationship with the defendant – a relationship which for his own reasons the defendant did not wish to exist outside the therapeutic confines - I do not see that those feelings in the circumstances of this case should attract an award of aggravated damages.

Exemplary damages

66 Exemplary damages are distinguished from compensatory and aggravated damages. This distinction has been repeatedly accepted by the High Court where the existence of exemplary damages as a separate head of damage has been clearly affirmed (Lamb v Cotogno and Gray v Motor Accident Commission (1998) 196 CLR 1). The primary object of an award of exemplary damages is to punish and deter (see generally Lamb v Cotogno). It is also clear that exemplary damages may be given where a wrong is so gross and involves such factors that it is appropriate by special award to seek to deter the defendant and others in his position from a repetition of what has been done (Uren v John Fairfax Pty Limited (1966) 117 CLR 118 at 129-130). The punitive and deterrent aspects of the award cannot be overstated.

"The object or at least the effect, is not wholly punishment and the deterrence which is intended extends beyond the actual wrongdoer and the exact nature of his wrongdoing ... So far as the object of deterrence is concerned, not only does it extend beyond the defendant himself to other like minded persons, but it also extends to conduct of the same reprehensible kind". ( Lamb v Cotogno at 8)

67 With respect to the punitive aspect of exemplary damages, in Lamb v Cotogno at 9, the Court expressed its approval of Brennan J’s observations in XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 at 471:

“As an award of exemplary damages is intended to punish the defendant for conduct showing a conscious and contumelious disregard for the plaintiff’s rights and to deter him from committing like conduct again. The considerations that enter into the assessment of exemplary damages are quite different from the considerations that govern the assessment of compensatory damages. There is no necessary proportionality between the assessment of the two categories… The social purpose to be served by an award of exemplary damages is, as Lord Diplock said in Broome v Cassell & Co , ‘to teach a wrong-doer that tort toes not pay’.”

68 It is in connection with the punitive and deterrent purposes of an award of exemplary damages that the distinction between the process of civil law and the function of criminal law must be recognised. In the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ in Gray v Motor Accident Commission, their Honours stated at para 40 that where the criminal law has been brought to bear upon the wrongdoer and punishment inflicted, it was considered that exemplary damages may not be awarded. This is because it would inflict substantial punishment for what is essentially the same conduct as the conduct which is the subject of the civil proceedings. The High Court explained that there are at least two reasons in principle why that is so. Firstly, the purpose of the awarding of exemplary damages has been wholly met if substantial punishment is exacted by the criminal law. The offender is punished; others are deterred. There is then no occasion for their award. Secondly, considerations of double punishment would otherwise arise.

69 While it must be acknowledged that the criminal law has not been engaged in the facts of this case, for the self evident reason, so far as I see it, that the plaintiff consented to sexual activity, the defendant has strenuously denied or avoided sanction or counselling of any kind from either the church or his own professional body by reason of his persistent and steadfast denial of any wrongdoing. In that regard he can hardly ask this Court for any indulgence in declining to award exemplary damages against him when such an award is designed to punish him and to deter him from conduct of this kind in the future should he resume his career as a therapist or in any other quasi counselling role.

70 In addition, it is well recognised that exemplary damages may be based on conduct not in itself constituting tort, but conduct occurring after the commission of tort. In Lamb v Cotogno, the High Court upheld the award of exemplary damages based on the defendant abandoning the plaintiff in agony at the side of the road after attacking him by driving a motorcar at him. In this regard the court said (at 12):

“Even if the act of leaving the plaintiff lying on a darkened road, when viewed separately, constituted no compensable wrong, there is no reason why it should be so viewed. Indeed, it is at least arguable that, having caused the plaintiff’s injuries through what was held to be a tortious act, the defendant was under a duty to take reasonable steps to alleviate the effect of his wrongdoing. It was open to the master to regard the conduct of the defendant in abandoning the plaintiff in the manner in which he did as displaying a cruel and reckless disregard for the welfare of the plaintiff and an indifference to his plight and as colouring the whole of the conduct of the defendant, including the assault which was found to have been made upon the plaintiff. So regarded, the tort of which the defendant was guilty was committed in circumstances amounting to an insult to the plaintiff.”

71 The type of conduct which attracts an award of exemplary damages has been described by courts in innumerable ways. The phrase first adopted by Knox CJ in Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71 at 77, namely, “conscious wrongdoing in contumelious disregard of another’s rights”, describes at least the greater part of the relevant field of conduct but is not exhaustive (see Gray v Motor Accident Commission).

72 Finally, I acknowledge the necessary caution with which I must proceed before arriving at an award of exemplary damages (see XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd).

73 I am satisfied that the defendant’s conduct in initiating and continuing a sexual relationship with the plaintiff between July 2001 and March 2002 exhibited an intentional and contumelious disregard for her welfare. This is especially so since by that time in course of the therapeutic relationship he occupied a position of power and trust, namely that of a therapeutic practitioner providing counselling services to a woman who was in a particularly vulnerable state. He was also aware she suffered sexual abuse as a child. His position within the church gave him additional kudos which he exploited. Whatever might be said of her energy and appetite for the relationship, his obligation to her was the primary consideration and he breached it repeatedly and egregiously.

74 I award the amount of $25,000 for exemplary damages.

75 Accordingly, the orders I make are as follows:

1. Verdict for the plaintiff.

2. I award general damages in the amount of $50,000 plus interest at the statutory rate from 23 December 2001 to today’s date.

3. I award exemplary damages in the amount of $25,000.

4. I note out of pocket expenses are agreed in the amount of $3454.05.

5. I order the defendant to pay the plaintiff’s costs.

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