Gardiner v Doerr

Case [2022] QSC 188

SUPREME COURT OF QUEENSLAND

CITATION:

Gardiner v Doerr [2022] QSC 188

PARTIES:

CAITLIN MAREE GARDINER

(plaintiff)

v
JAMES KARL DOERR

(defendant)

FILE NO/S:

BS No 12860 of 2016

DIVISION:

Trial Division

PROCEEDING:

Claim

ORIGINATING COURT:


Supreme Court at Brisbane

DELIVERED ON:

11 November 2022

DELIVERED AT:

Brisbane

HEARING DATE:

22, 23, 24, 25, 26, 29, 30 August 2022; 7 September 2022; further written submissions delivered on 21 September 2022

JUDGE:

Cooper J

ORDER:

Judgment for the plaintiff against the defendant in the sum of $967,113.40.

CATCHWORDS:

TORTS – INTERFERENCE WITH THE PERSON – TRESPASS TO THE PERSON – WHAT CONSTITUTES GENERALLY: ASSAULT AND/OR BATTERY – where the plaintiff and defendant were married for approximately 15 years and had two children – where the plaintiff and defendant separated and the plaintiff continued to live in the matrimonial home after separation – where the defendant told the plaintiff that he had hired somebody to rape and sodomise her – where the defendant broke into the plaintiff’s home while she was sleeping and physically assaulted her – where the defendant denies the assault occurred at all or that if it did occur that he was not the perpetrator – where the defendant was acquitted after a criminal trial – where the plaintiff subsequently brings proceedings for damages for post traumatic stress disorder – whether the defendant is liable for the injury suffered by the plaintiff

Civil Liability Act 2003 (Qld), s 59, s 61, s 62
Civil Liability Regulation 2014 (Qld), Schedule 3, Schedule 4, Schedule 7

Boughey v R (1986) 161 CLR 10; [1986] HCA 29, cited
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, cited
Browne v Dunn (1893) 6 R 67, applied
Bulsey v State of Queensland [2015] QCA 187, considered
Cassell & Co Ltd v Broome [1972] AC 1027, cited
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited
Helton v Allen (1940) 63 CLR 691, cited
Jones v Dunkel (1959) 101 CLR 298, cited
Land v Dhaliwal [2012] QSC 360, cited
McHale v Watson (1964) 111 CLR 384, cited
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; [1992] HCA 66, cited
P v R [2010] QSC 139, considered
Pearce v Nominal Defendant (Qld) [1964] Qd R 312, considered
Pel-Air Aviation Pty Ltd v Casey (2017) 93 NSWLR 438; [2017] NSWCA 32, considered
R v Phillips [1971] ALR 740; (1971) 45 ALJR 467, cited
Rejfek v McElroy (1965) 112 CLR 517; [1965] HCA 46, cited
Ryan v Bunnings Group Ltd [2020] ACTSC 353, cited
Spautz v Butterworth (1996) 41 NSWLR 1, cited
Williams v Milotin (1957) 97 CLR 465, cited
Wormleaton v Thomas & Coffey Ltd [2015] NSWSC 260, cited

COUNSEL:

B F Charrington KC, with R B Dickson, for the plaintiff

A Harris for the defendant

SOLICITORS:

MBA Lawyers for the plaintiff

Lee Lawyers for…

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AGLC
Gardiner v Doerr [2022] QSC 188
Case
[2022] QSC 188
Decision Date

CaseChat Overview and Summary

Gardiner v Doerr was a case brought by the plaintiff, Ms Gardiner, against the defendant, Mr Doerr, for damages for post traumatic stress disorder (PTSD) that she claimed arose from a series of incidents that occurred after the couple had separated and during the process of resolving their parenting arrangements. The case was heard in the Supreme Court of Queensland. The primary legal issue before the court was whether the defendant was liable for the injury suffered by the plaintiff. The court had to consider whether the defendant's actions constituted an assault or battery, and if so, whether those actions led to the plaintiff's PTSD.

The court found that the defendant had indeed engaged in conduct that constituted assault and battery. Despite the defendant's denial and acquittal in a criminal trial, the court was satisfied based on the evidence that the defendant had threatened the plaintiff with words and later broke into her home while she was sleeping and physically assaulted her. The court noted that the defendant's threats and subsequent actions were deliberate and intended to cause harm, fulfilling the criteria for assault and battery. The court awarded the plaintiff damages for the PTSD, which included general damages, past and future economic loss, special damages, and interest on those amounts. Additionally, the court awarded aggravated and exemplary damages for the defendant's conduct.

The final orders of the court were that judgment be entered for the plaintiff against the defendant in the sum of $967,113.40, plus interest. The court also noted that it would hear the parties regarding the allocation of costs.

Orders

Orders of the court

Judgment for the plaintiff against the defendant in the sum of $967,113.40.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

They arrived at Mr Doerr’s parents’ house at around 9.10 am and transferred the Esky, about four white plastic shopping bags containing food items and two white garbage bags with the children’s towels and spare clothing down to the boat.The children’s evidence about the morning of 10 December 2013 Xavier did not give evidence about being woken by his father before 6 am on 10 December 2013. His evidence in chief was that he woke at around 8 am. He maintained that position in cross-examination when it was suggested to him that Mr Doerr had woken him earlier that morning. That part of Xavier’s evidence was consistent with his police interview on 10 December 2013,[24] where he said that he woke at around 8 am, saw that Mr Doerr was sleeping on the daybed and noticed that he had a “buzz-cut”. He said in that interview that after Avalon had woken up, she woke Mr Doerr and they left the manager’s residence at Allsafe at about 9 am with the supplies they had bought the previous evening.[24]Exhibit 39, p. 14. In his evidence in chief, Xavier said that he and Avalon took part in a phone call with Ms Gardiner before they left the manager’s residence that morning. I do not accept that evidence. Xavier did not make any reference to such a call when he spoke to police after the alleged assault. In his police interview on 21 December 2013,[25] Xavier referred to Avalon having a FaceTime call with Ms Gardiner on the morning in question. That contemporaneous account is consistent with what Ms Gardiner said both in her police statement[26] and in her evidence at trial. It is also consistent with evidence given by Avalon. [25]Exhibit 38, pp. 15-16. [26]Exhibit 37, paragraph [105]. In her evidence in chief, Avalon said that she remembered Mr Doerr coming up to her towards the end of her FaceTime call with Ms Gardiner, but that she did not tell Ms Gardiner that Mr Doerr had shaved his head. Under cross-examination, Avalon said that she remembered waking up and seeing Mr Doerr on the daybed with a shaved head. That was the first time she saw Mr Doerr that morning. She did not accept the suggestion put to her that she first saw Mr Doerr with a shaved head during the course of her FaceTime call with Ms Gardiner, or that she said words to the effect of “Oh Dad, you’ve shaved your head” during that call.The boat trip on 10 December 2013 and following events Mr Doerr’s evidence was that Xavier drove the boat when they first left his parents’ house but that Mr Doerr took over when they entered a narrow canal system. Xavier recommenced driving when they travelled through a number of zones where boats were limited to a speed of six knots. According to Mr Doerr, they travelled past Marina Mirage at about 10.30 am. While Xavier was driving the boat, Mr Doerr went to the back of the boat to empty water out of the fuel line. Once they reached the start of a 30 knot zone, Mr Doerr drove the boat again. Xavier gave evidence that Mr Doerr took a number of white garbage bags with him when he went to the back of the boat and that Xavier did not see those bags on the boat again that day. This was something that he mentioned in his police interview on 21 December 2013,[27] but not in his police interview on 10 December 2013. From this, and Ms Gardiner’s evidence that Mr Doerr left Villa 1 with a bag containing items used in the assault, Ms Gardiner submitted I should infer that Mr Doerr disposed of those items during the boat trip. I am not prepared to draw that inference.[27]Exhibit 38, pp. 16-18.

Decision

Reasons for decision

Interest at a rate of 4%[173] from 10 December 2013 (8.8 years) is $17,600.[173]Bulsey v State of Queensland [2016] QCA 158 at [28]-[29].Conclusion In summary, I have assessed the damages to be awarded to Ms Gardiner as follows:General damages $8,410Past economic loss $358,123Interest on past economic loss $58,302Future economic loss $343,081Gratuitous services $35,560Special damages $13,412.40Interest on special damages $1,899Future special damages $13,126Aggravated damages $50,000Interest on aggravated damages $17,600Exemplary damages $50,000Interest on exemplary damages $17,600 There will be judgment for the plaintiff in the sum of $967,113.40. I will hear the parties as to costs.

Ratio Decidendi

Legal Principle Established

It was never put to Xavier during his cross-examination that the verbal abuse or the incident he described involving the chair did not occur.Separation and parenting arrangements Ms Gardiner and Mr Doerr separated permanently in September 2013. Ms Gardiner’s evidence was that the separation occurred on 14 September 2013, when Mr Doerr left Villa 1 with the children and returned to live at the manager’s residence at Allsafe. Ms Gardiner then engaged family law solicitors who arranged for the children to be returned to her custody on 28 September 2013. On that day, Ms Gardiner caused the locks to Villa 1 to be changed and changed the code for the alarm system. Mr Doerr denied taking the children without Ms Gardiner’s consent but accepted that the children were returned to Ms Gardiner after he received a letter from Ms Gardiner’s solicitors threatening that an application would be made for recovery orders. From 28 September 2013, Ms Gardiner continued to live at Villa 1 with the children while Mr Doerr lived in the manager’s residence at Allsafe. On 6 December 2013, Ms Gardiner and Mr Doerr attended a mediation to discuss parenting and property issues. They reached agreement on a shared parenting arrangement whereby Mr Doerr would have custody of the children every second weekend and every second Wednesday night during the school term. During school holidays, Mr Doerr was to have custody of the children from Monday morning until Thursday morning. Relevantly, that meant Mr Doerr would have custody of the children from 9 am on Monday, 9 December 2013 until the following Thursday morning. The handover of the children on 9 December 2013 Shortly before 9 am on 9 December 2013, Mr Doerr arrived at the underground car park at Royal Pines Resort to collect the children pursuant to the parenting agreement reached at the mediation. Ms Gardiner and the children were not at the car park when he arrived. After waiting for several minutes, Mr Doerr telephoned Xavier to ask how long they would be. Xavier responded by saying he thought that Mr Doerr would be picking the children up from Villa 1. Following this call Ms Gardiner drove the children to meet Mr Doerr. Ms Gardiner’s evidence was that, upon arriving at the car park, she parked approximately 10 metres away from Mr Doerr’s car. Ms Gardiner then walked over to Mr Doerr’s car with the children and their bags. The children got into Mr Doerr’s car. When Ms Gardiner went to return to her own car Mr Doerr started talking to her and followed her back to her car. On Ms Gardiner’s account, when he followed her to her car, Mr Doerr said words to the effect that: “This madness has to stop. I can’t even afford the school fees. Do you want to look at Xavier’s report online? Do you want to look at his report?” Ms Gardiner told Mr Doerr she had been looking at the report online for years and then got into her car. Once she was in her car, Mr Doerr continued talking to her, saying words to the effect of: “I can’t even afford the school fees. I’ve hired someone to rape and sodomise you.” Mr Doerr repeated the statement about having hired someone to rape and sodomise her before Ms Gardiner drove away from the car park.