Gersbach v Gersbach

[2018] NSWSC 1685

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Gersbach v Gersbach [2018] NSWSC 1685
Hearing dates:	10 – 14 July 2017;18 – 21 July 2017
Date of orders:	09 November 2018
Decision date:	09 November 2018
Jurisdiction:	Common Law
Before:	Garling J
Decision:	(1) Judgment for the defendant. (2) Plaintiff to pay the defendant’s costs.
Catchwords:	TORTS – intentional torts – personal injury –allegations of historic sexual and physical child abuse – damages sought for psychiatric injury and consequential loss EVIDENCE – civil standard of proof – approach to assessment of credibility – burden of proof to the Briginshaw standard – Evidence Act 1995, s 140(2)
Legislation Cited:	Civil Liability Act 2002 Crimes Act 1900 Crimes Amendment (Child Protection—Physical Mistreatment) Act 2001 Evidence Act 1995 Limitation Act 1969 Limitation Amendment (Child Abuse) Act 2016
Cases Cited:	Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Cleary v Booth [1893] 1 QB 465 CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1 Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1 Jones v Hyde [1989] HCA 20; (1989) 63 ALJR 349 Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 M v M [1988] HCA 68; (1988) 166 CLR 69 MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348 MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 657 New South Wales v Riley [2003] NSWCA 208 Police (SA) v G, DM [2016] SASC 39; (2016) 258 A Crim R 75 R v Dickson [1983] 1 VR 227 R v Griffin (1869) 11 Cox CC 402 R v Mackie [1973] Crim LR 54 R v Terry [1955] VLR 114 Sullivan v Gordon [1999] NSWCA 338; (1999) 47 NSWLR 319 Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 Varmedja v Varmedja [2008] NSWCA 177 XY v Featherstone [2010] NSWSC 1366
Texts Cited:	International Classification of Diseases Diagnostic and Statistical Manual of Mental Disorders 5th Edition (DSM-5)
Category:	Principal judgment
Parties:	Jayne Gersbach (P) Rodney Gersbach (D)
Representation:	Counsel: M Finnane QC / M McAuley (P) G P McNally SC / N Roucek (D)   Solicitors: Blake Lawyers (P) Breene & Breene Solicitors (D)
File Number(s):	2013/327902
Publication restriction:	Not Applicable

Judgment

1. Jayne Gersbach, the plaintiff, claims damages from her father, Rodney Gersbach, for psychiatric injury and consequential loss as a result of assaults, sexual and physical, perpetrated upon her by her father over a lengthy period of time.

2. Rodney Gersbach, the defendant, denies that he at any time ever perpetrated any sexual assaults on his daughter whatsoever. He also denies perpetrating any physical assaults, save for the administration of appropriate parental discipline.

3. For the reasons which follow, I am not satisfied that the plaintiff has established the causes of action upon which she relies. As a result there will be judgment for the defendant.

Onus of Proof

4. Because of the nature of the allegations made by her, senior counsel for the plaintiff accepted in his opening that, although the proceedings are civil, and the onus of proof is one on the balance of probabilities, the Court needs to reach a state of reasonable satisfaction having regard to the factors mentioned in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

5. In Briginshaw, Dixon J said at 362:

“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”

6. In M v M [1988] HCA 68; (1988) 166 CLR 69, a decision which centred upon proof of an allegation of sexual abuse, the High Court of Australia in a unanimous judgment said at pp.76 – 77:

“In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw … [Dixon J’s] remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute.”

7. Having regard to contemporaneous events and knowledge about the occurrence in the community and in family settings of child sexual abuse, it would not be appropriate to categorise accounts of such conduct as being inherently unlikely, as Dixon J did in 1938.

8. This common law position is now reflected in s 140 of the Evidence Act 1995 (NSW).

Removal of Limitation Period

9. It is convenient to note that, despite the time which is passed since the events the subject of this claim are said to have occurred, the plaintiff is not statute-barred by any limitation period in the bringing of her claim.

10. The removal of limitation periods for child abuse actions occurred in 2016 by the enactment of the Limitation Amendment (Child Abuse) Act 2016, which took effect from 17 March 2016.

11. That amending Act introduced s 6A of the Limitation Act 1969 (NSW), which is in the following form:

“6A   No limitation period for child abuse actions

(1)   An action for damages that relates to the death of or personal injury to a person resulting from an act or omission that constitutes child abuse of the person may be brought at any time and is not subject to any limitation period under this Act despite any other provision of this Act.

(2)    In this section, child abuse means any of the following perpetrated against a person when the person is under 18 years of age:

(a)    sexual abuse,

(b)    serious physical abuse,

(c)    any other abuse (connected abuse) perpetrated in connection with sexual abuse or serious physical abuse of the person (whether or not the connected abuse was perpetrated by the person who perpetrated the sexual abuse or serious physical abuse).

(3)   To remove doubt, connected abuse is child abuse only if both the connected abuse and the sexual abuse or serious physical abuse in connection with which it is perpetrated are perpetrated when the person is under 18 years of age.

(4)    This section applies regardless of whether the claim for damages is brought in tort, in contract, under statute or otherwise.

(5)    ….

(6)   ….”

12. Clause 9 of Schedule 1 of the Limitation Amendment (Child Abuse) Act provides that s 6A applies retrospectively – that is, that it extends to a cause of action that arose before the commencement of that section. It further provides that s 6A applies “… whether or not any limitation period previously applying to the cause of action has expired”.

13. The plaintiff claims that the defendant inflicted both sexual abuse and serious physical abuse upon her when she was aged under 18 years. Therefore, her claims, save for one alleged assault which will be addressed below, fall within s 6A.

The Gersbach Family

14. The defendant, Rodney Gersbach, was born in 1956. He worked as a member of NSW Fire Brigade for many years. In December 1994, he was admitted as a solicitor. He continued in a role with the NSW Fire Brigade for a few years after his admission. He then commenced practice on his own account as a solicitor. He practised from his home.

15. Mr Gersbach’s long-term partner (regularly referred to as his wife although they are not actually married) and the plaintiff’s mother, is Ms Julie O'Brien, who was born in 1960. She commenced living with the defendant in 1982. They separated in 2016 although they continue to live in the same house.

16. The plaintiff is the first-born daughter of Mr Gersbach and Ms O'Brien. She was born in May 1983. She is now 35 years old.

17. There are two more daughters of Mr Gersbach and Ms O'Brien. Their second daughter, Kate Gersbach (“Kate”), was born in 1987 and is now about 31 years old, their youngest daughter, Hayley Gersbach (“Hayley), was born in 1990 and is about 28 years old.

18. Not long after the plaintiff was born, she moved in 1985 with her parents to a newly constructed villa at Macquarie Fields. They lived there until 1989, or perhaps 1990.

19. During the time that the Gersbach family lived at Macquarie Fields, the plaintiff attended preschool, and then kindergarten at East Hills Public School. It was while the family was living at Macquarie Fields that the plaintiff alleges she was first sexually assaulted at the age of three or four by her father.

20. During the time they lived at Macquarie Fields, Mr Gersbach and Ms O'Brien had a period of separation in their relationship, which was for less than a year. Ms O'Brien, together with the plaintiff and Kate, moved to a flat provided by the Housing Commission of NSW on the Old Princes Highway at Engadine. It will be convenient to refer to this as the “Engadine flat”. Ms O’Brien and the children moved in about 1989 or 1990, when the plaintiff was six or seven years old.

21. The Engadine flat consisted of two bedrooms and was quite small. Initially, Ms O'Brien, the plaintiff and Kate lived there. Mr Gersbach lived in his father's house in Revesby. Over time, the relationship of Mr Gersbach and Ms O'Brien was repaired. Mr Gersbach visited the family at the Engadine flat and on some occasions stayed overnight until, in due course, he and Ms O’Brien resumed living there together as a family.

22. Hayley was born while the family was living at the Engadine flat. In that flat, Ms O’Brien occupied one bedroom, in which there was also a cot for Hayley. There were bunk beds in the other bedroom which were used by the plaintiff and her sister, Kate.

23. Whilst she was living in the Engadine flat, in 1989, the plaintiff was enrolled in Year 1 at Engadine Central Public School.

24. In 1993, Mr Gersbach and Ms O’Brien purchased a three-bedroom house in Lantana Road in Engadine (“Lantana Road”). Ms O’Brien described the house as “… very compact, very small …”. When the family moved there, Mr Gersbach and Ms O'Brien occupied one bedroom, and the plaintiff and her sister Kate occupied another. They slept in double bunk beds. The plaintiff slept on the top bunk. Hayley slept alone in another bedroom. These bedroom arrangements continued for some years. They changed, initially when the plaintiff moved into her own bedroom whilst her sisters shared a room, and then again when a detached garage was converted into an additional bedroom and the plaintiff moved out there. Her two sisters then occupied separate bedrooms in the house.

25. After moving to Lantana Road, the plaintiff continued to attend Engadine Central Public School. In 1995, she commenced high school at Engadine High School. Because she was teased there, she transferred in that year to Heathcote High School. She completed her schooling to the end of Year 12 at Heathcote High School, although she did not successfully complete her final Higher School Certificate examinations.

26. The plaintiff alleges that whilst she lived at Macquarie Fields, the Engadine flat, and at Lantana Road, she was assaulted, sexually and physically, by her father.

27. For reasons, and in circumstances which will become apparent, the plaintiff's employment history has been significantly disrupted. After leaving school, she worked in a number of places as a dental assistant which was her most consistent vocation. At other times, she seems to have worked in various retail and administrative roles. For a period she was a sex worker in a number of brothels. She is not presently employed.

28. Kate is a qualified hairdresser and works near Newcastle. She no longer lives at home in Lantana Road. Hayley is a qualified beautician who at the time of the hearing of the proceedings was still living at Lantana Road with her parents.

29. The plaintiff is the mother of a daughter who was born in 2014. She does not presently have the full-time care of this child.

The Plaintiff’s Case

30. As earlier indicated, the plaintiff claims damages from her father for assaults, both sexual and physical, which commenced when she was three or four years old at Macquarie Fields, and continued regularly until she was about 14 years old. She alleges that a further sexual assault was committed by her father upon her when she was 19 years old. Whilst the evidence of this assault was led as part of the evidence in support of her claim, because the plaintiff was older than 18 at the time of that assault, it was not one which falls within the ambit of s 6A of the Limitation Act. Therefore, as these proceedings were commenced after the limitation period in respect of that assault had expired, the plaintiff does not include this assault as a part of her claim for damages.

31. The plaintiff's claim can, for convenience, be considered as having three components. The first is her claim that on a number of separate occasions, each of which she now says that she specifically recalls, she was sexually assaulted by the defendant. The second component of her claim is that she was regularly sexually assaulted by the defendant, usually at night, and usually in her bedroom. She does not have a clear or distinct memory of these assaults that is sufficient to enable her to recall specifically any one occasion. She says, in effect, that the defendant engaged in a course of conduct which meant that he sexually assaulted her at will. The third component of the plaintiff's claim is that, whilst in primary school and in her early years of high school until she was about 14 years old, she was physically beaten by the defendant on her bare buttocks with a leather belt, whilst she was bent over a bed.

32. The plaintiff’s case is that she did not complain about the defendant's conduct at any time to anyone until she was about 19 years old. Even then, she says that it took another four or five years, during which time she had extensive therapy and counselling, before she could recall, and reveal, accurately what she alleges had occurred to her. She says that she had repressed her memories of the abuse, and that memories of that abuse first emerged in a flashback which occurred whilst she was having sex with her then boyfriend.

33. The plaintiff has been diagnosed as having a borderline personality disorder (“BPD”). She also has a diagnosed eating disorder - bulimia. She has, since she was about 16 years old, been a heavy user of alcohol, often binge drinking to such an extent that she passed out. At about that time, the plaintiff commenced using illicit drugs. She initially used marijuana, and has since then used a number of other drugs, including crystal methamphetamine (“Ice”).

34. The plaintiff claims that the consequence of these psychiatric disorders is that she has had a completely disrupted life and that she will require ongoing therapy for an indefinite period. She also says that her employment has been intermittent and that she has not, and cannot now, develop her full economic potential. The plaintiff’s claim is that all of these consequences derive from and were caused by the defendant's conduct towards her.

35. In addition to compensatory damages, the plaintiff claims aggravated and exemplary damages.

36. In his opening, senior counsel for the plaintiff submitted that the Court’s tasks of assessing the plaintiff’s case would be a difficult one. He informed the Court that histories given by the plaintiff had been given reluctantly and were often confused. He submitted that this was not unexpected, and that the plaintiff’s case depended upon these histories “… in a very big way …”.

37. In his final written submissions, senior counsel for the plaintiff submitted that the Court should accept the plaintiff’s account of the sexual and physical abuse which it was said was supported by:

“1.   Consistency in her complaint once it had become clear to her what happened.

2.   The suffering of [BPD] which is consistent with child sexual assault and physical abuse.

3.   The lack of anything other than what she speaks of to explain the [BPD].”

38. The plaintiff’s written submissions made it plain that the case for the plaintiff was that the defendant and Ms O’Brien had given false evidence in claiming that the plaintiff had a normal happy life in her teenage years, and that they were caring parents. It was also put that their denials of sexual and physical abuse were also false. It follows from this submission that their evidence must have been knowingly false on these matters.

39. In his final oral submissions, senior counsel for the plaintiff put the plaintiff’s case in this way:

“The cases that I make on behalf of the plaintiff, and my learned friend makes on behalf of the defendant, are starkly different, because in our case, we are saying that credibility of the plaintiff is established not just by what she says, but by all the supporting psychiatric evidence and psychological evidence, and by the fact that from well before the time she saw Mr Griffiths [a sexual assault counsellor], she was complaining to people, to police, to the Victims Compensation Tribunal, to the Attorney-General, and to various people, practitioners of various types and to Sutherland Hospital.

In our submission, the credibility is made out by … considering what she says … herself, and the support that is given in all this material.”

The Defendant's Case

40. Mr Gersbach denies absolutely that he sexually or physically assaulted the plaintiff in the way she claims. Mr Gersbach says that the plaintiff’s claimed memories of sexual assaults are entirely untrue. Put differently, he says that they are false memories which may, he accepts, be genuinely held by the plaintiff. Nevertheless, his case is that those memories are false and are not a true reflection of any facts which occurred.

41. He accepts that he did administer corporal punishment to the plaintiff including by the occasional use of a leather belt while she was in primary school, but says that it was reasonably administered. He says that it was not administered in the way that the plaintiff claims, or as often as she claims.

42. The defendant's denials are supported by evidence given by Ms O'Brien, and by his two daughters Kate and Hayley. Of this evidence, the plaintiff submitted that both the defendant and Ms O'Brien were telling lies intentionally, so as to avoid admitting the commission of criminal offences by each of them.

43. The plaintiff did not submit that Kate and Hayley were intentionally lying to the Court but, rather, that their evidence was insufficient to be preferred to that of the plaintiff.

44. The defendant also submitted that the plaintiff’s evidence was beset by inconsistencies which were so numerous and so significant that they demonstrated her evidence to be unreliable and unable to be accepted by the Court. He also submitted that the plaintiff's evidence of the specific sexual assaults is uncorroborated and, where it could be corroborated, such corroboration was not forthcoming.

45. The defendant relies upon the fact that the evidence of his daughters Kate and Hayley corroborate in a material respect his evidence as to the manner by which, and how frequently, he administered corporal punishment. He says that there is no reason to suppose that he would have applied a different method, with significantly different frequency, to only one of his three daughters.

46. The defendant does not dispute that the plaintiff has a BPD and an eating disorder. To the extent that the plaintiff claims that the existence of her BPD demonstrates that the sexual assaults took place, the defendant submitted that there is evidence of the other causal factors and conditions which are more than sufficient to have caused, and which explain the existence of that disorder.

47. To the extent that the defendant submits that the plaintiff’s memories are false, he does not rely upon the existence of any diagnosable psychiatric condition of the kind described in evidence as a false memory syndrome. Rather, the defendant points to the phenomenon often observed in courts of law of a person honestly giving an account of facts which is shown to be erroneous.

40. In light of the issues raised, it is necessary to set out in this judgment the account given by the plaintiff, the range of histories and the expert evidence before coming to a resolution of those issues. Not every history given can be specifically referred to, but each one has been carefully read and considered.

Limitation on the Use of Some Evidence

49. It is necessary to record at the outset of this judgment the basis upon which a significant amount of the evidence about the occurrence of the claimed physical and sexual assaults, and their first recall, was admitted.

50. The plaintiff tendered as part of her case many hospital and counselling records, records of complaints to police and the Victims Compensation Tribunal, her own diary notes and musings and, finally, reports of experts qualified for the purpose of giving evidence in the proceedings. The defendant also tendered reports of a qualified psychiatrist. As well, the expert psychologists and psychiatrists gave evidence in the course of the trial by reference to, and on the basis of, a history given to them by the plaintiff, or a history to be drawn from documents given to them, such as counselling records and the like, about the assaults, and how they came to be first recalled.

51. Section 60 of the Evidence Act has the effect that such evidence which is relied upon variously as evidence of a complaint being made, or as a history given to experts for counselling and treatment purposes, or else to enable the formation of an expert opinion to be given in evidence, would be also evidence of the fact stated. In other words, where the plaintiff told a counsellor that she had been sexually abused, s 60 had the effect that this was evidence that she had been, in fact, sexually abused.

52. All such evidence about the occurrence of assaults and their first recall was the subject of a limitation imposed by the Court pursuant to s 136 of the Evidence Act, that such evidence was not to be used as any evidence of the truth of the facts stated but, rather, could only be used for the non-hearsay purpose or purposes, namely that the history was given at a particular time and that it was either consistent or inconsistent with other evidence in the proceedings, including other previous representations and the direct evidence of the plaintiff herself.

53. This limitation of use under s 136 of the Evidence Act was formulated after submissions from senior counsel for the plaintiff made it clear that the plaintiff was only seeking to rely on the evidence of the assaults and the circumstances of their first being recalled, to demonstrate that the particular statements were made, the time at which they were made and the person to whom they were made.

54. Senior counsel for the plaintiff submitted that it was not the plaintiff’s intention to:

“… establish the truth of every individual fact, because some of these are contradictory facts. But we want to establish that she said these things at those particular times and that’s why they’ve been tendered.”

55. To the extent that this evidence is referred to in this judgment, it is necessary to keep that limitation in mind. However, the limitation did not apply to other facts and matters given in the course of previous representations.

Plaintiff's History Prior to Leaving School

56. It is convenient now to review some of the relevant features of the plaintiff's history prior to the commencement of her relationship at about the age of 19 with a boyfriend named Rabih (I note that there are various spellings of this name in the exhibits - this is the one which I will use). This history does not include reference to any of the episodes of sexual assault or physical assault relied upon because they were first disclosed after this period.

57. In primary school, the plaintiff did quite well academically – there was no suggestion of any learning difficulties. She participated in athletics and did so at a reasonably high standard. She was a champion athlete of her school and competed at Zone and Regional events. During this period, the defendant was working full-time – sometimes on shift work – with the NSW Fire Brigade. Ms O’Brien was not working and was engaged full-time looking after the children.

58. Although for some part of this period the defendant and Ms O'Brien were separated, I am satisfied that the defendant visited the Engadine flat and continued to interact with Ms O'Brien and his daughters. As I have said, he restored his relationship with Ms O'Brien.

59. The plaintiff initially attended Engadine High School after graduating from Engadine Central Public School. However it appears that she did not enjoy her time there. In the first half of Year 7, her first year at the school, it became apparent that the plaintiff was being teased about her physical appearance. She had red hair and freckles. She was teased about those features. The teasing greatly upset her. The plaintiff said in evidence that she did not have any friends at that time. Such was the effect upon her of this teasing, that one morning when her mother drove her to school, the plaintiff refused to get out of the car and enter the classroom. Her mother drove her home. Both her mother and her father separately spoke to senior staff at the school. As a result, a decision was made to remove the plaintiff from Engadine High School, and enrol her at Heathcote High School. This happened midway through 1995 when the plaintiff was a little over 12 years old.

60. The plaintiff then attended Heathcote High School until her HSC. Her academic performance was quite good. There is no specific evidence about her earlier years, but in her trial HSC examinations the plaintiff did very well in English, General Studies and Hospitality.

61. Whilst in Year 12, the plaintiff had a boyfriend (not Rabih) whom she described as her first love, and felt that she was very much in love with him. Shortly prior to the final HSC examinations, she broke up with that boyfriend. She reacted very emotionally to the breakup and became quite distraught. Such was her emotional state that when she went into the final HSC examinations she could do nothing other than record her name on the exam paper but not complete the exam in any other way. On any view, this was an extreme reaction to this relationship breakdown.

62. The plaintiff agreed with counsel for the defendant that she went from being a reasonably happy girl before the breakup with her boyfriend, to one who became emotionally distraught and extremely depressed. She also agreed that her depression got worse and worse over time, as a result of this event, and that her weight increased.

63. Whilst the defendant and Ms O'Brien thought that their family life and the plaintiff’s upbringing was a relatively normal one, the plaintiff did not see it that way. The plaintiff said that she started drinking alcohol at 14 of 15 years of age. She drank heavily a lot on the weekends. As a teenager she funded the purchase of alcohol from money either given to her, or else stolen by her, from the defendant.

64. By around the age of 15, she had commenced skipping school. Deirdre Coote, a dietician, recorded in a report dated 5 October 1998, that the plaintiff, who was then 15 years old, had skipped school on 14 August 1998 and that the Police had been involved. Ms Coote recorded that Ms O'Brien “… was upset that Jayne could not discuss her problems with her or Mr Gersbach…". Ms Coote recorded that there were “obvious signs of tension” between the plaintiff and her parents, and that the plaintiff was “particularly critical of her father”, but did not elaborate.

65. Ms Coote also recorded that the plaintiff disclosed to her symptoms of an eating disorder, namely forced vomiting (also called purging) and laxative abuse. The plaintiff had also undertaken a rapid weight loss program, and when she lost weight was pleased with her appearance. This behaviour had occurred at about the time that the plaintiff “… had noticed boys". Ms Coote thought that the plaintiff had become entrapped in the beginnings of an eating disorder.

66. In her cross-examination, the plaintiff agreed that at about the age of 13 or 14, she had become concerned about her weight. It was that ongoing concern about her weight and her eating habits which, she accepted, led to her parents taking her to see Ms Coote. Whenever she visited Ms Coote, she spoke to her alone. Her parents were not in the consultation room.

67. Ms Coote recorded parental concern about the breakdown in the relationship between the plaintiff and her parents. The plaintiff felt unable to tell parents about her bingeing behaviour – namely overeating and bingeing, followed by purging.

68. I accept that these reports of Ms Coote accurately recorded the history which she was given of the events at that time. I am also satisfied that the history reflects the facts as they occurred. The history of concealed purging is corroborated by an event of which the defendant gave evidence about finding the remnants of food, vomited into a sink at Lantana Road shortly after an evening meal. The plaintiff denied to her parents that she was responsible for that occurrence. Having regard to the denials of responsibility for this episode by the plaintiff’s sisters, and their respective ages at the time, I am well satisfied that the plaintiff was responsible for this episode, and that her sisters were not. She clearly lied to her parents at that time about this episode and her behaviour.

69. Of particular importance in the two reports of Ms Coote, both written in 1998 when the plaintiff was 15 years old, are these facts and circumstances:

1. the plaintiff clearly had an anxiety condition about her weight. Ms O'Brien did not feel there was any problem in this respect. There was evidently tension between these views;

2. by the time of the consultations with Ms Coote, the plaintiff was quite “… entrapped in the beginnings of an eating disorder”;

3. there had been a breakdown in relations between the plaintiff and her parents of a kind sufficient to persuade Ms Coote that a family session (with her) was necessary;

4. the plaintiff reported to Ms Coote that she had gone to a party (or perhaps parties) without telling her parents, thereby abusing the trust which her parents had placed in her not to do so;

5. Ms Coote was concerned that the plaintiff was not “reaching out” to her parents for advice, often about trivial matters, but was rather contacting Ms Coote to seek that advice; and

6. Ms Coote interpreted these calls for advice as being “… a desperate cry for help” by the plaintiff in circumstances where she did not feel that the plaintiff’s parents were giving any commitment in support of the plaintiff.

70. Clearly, whatever are the present views of Mr Gersbach and Ms O'Brien about their historic family relationship with the plaintiff, an independent observer had formed a quite different conclusion. The plaintiff seemed to have no difficulty communicating with Ms Coote, and confiding in her a variety of personal matters.

71. I prefer the evidence of Ms Coote about the state of the relationship between the plaintiff and her parents during this period in 1998 to any other evidence. I accept its accuracy. Ms Coote recorded her views contemporaneously and was an independent and objective observer concerned to understand what the causes of the eating disorder were that she thought was developing in the plaintiff. For that reason I'm satisfied that she would have recorded accurately the facts and matters of which she was informed, and her observations, perceptions of and conclusions about the relationship.

72. At that time, I am satisfied that the plaintiff did not have a satisfactory relationship with her parents. She did not trust them to ask for advice, including about trivial matters. She was not prepared to comply with their directions about her own behaviour. She did not always attend school as she was required to do. The plaintiff obviously felt that she had been effectively abandoned by her parents and needed to seek help outside of the family. This conclusion is relevant to the later consideration of the plaintiff’s psychiatric history.

73. I note that there was no reference made by the plaintiff in the course of her consultations with Ms Coote to being the victim of sexual assault. Having regard to Ms Coote’s expertise, i.e. a dietician, I do not regard the absence of any complaint as being of any relevance in the determination of whether the assaults occurred as claimed by the plaintiff. It may not have been out of place for the plaintiff, but it would not be expected of her, to have made such a disclosure in the course of discussing her eating disorder and relationship with her parents.

74. According to the plaintiff, by the time she developed her eating disorder, she hated her father because she thought that he was curtailing her enjoyment of life by the discipline he was imposing upon her. She regarded him as a very strict disciplinarian and thought that he was very critical of her behaviour.

75. The plaintiff gave evidence that she ran away from home and went to Wyong. The plaintiff said that she was about 14 or 15 years old when this happened. She stayed away from home for a couple of nights with a family she had met whilst holidaying with her parents at a caravan park. She said that after a telephone conversation with her father, which took place whilst she was at Wyong, she returned home. She denied any further episodes of running away from home whilst she was at school. In the account of both the defendant and Ms O’Brien about this event, both said that it happened in 1999 when the plaintiff was 16 years old. They each recounted the plaintiff’s admission to them that she had run away to Windang, south of Wollongong, to be with a boy whom she had met whilst staying at the caravan park in Windang during family holidays. She told her parents, whom she first contacted from Central Railway upon her return, that she had sexual intercourse with the boy.

76. I prefer the account of this episode given by the defendant and Ms O’Brien to that recounted by the plaintiff. The caravan park at which the Gersbach family took its occasional holidays was situated in Windang. It is likely that the plaintiff became friends there with a boy who lived locally. As well, having regard to the history given to Ms Coote, recorded at [64] above, and the absence of any police involvement in this episode of running away from home, it is most likely that this episode happened after the consultation with Ms Coote, who was not given any specific history of this event. That also suggests that the event happened much closer to the age of 16 rather than the age of 14 or 15 as described by the plaintiff. I also accept that having regard to what the plaintiff said to her parents about what occurred when she was with the boy she was to meet, it is unlikely that the parents would mistake the detail or fail to remember it quite clearly.

77. The significance to be drawn from any acceptance of the parents’ account of this event is that it is an example of an event of some significance in the life of the plaintiff when she was in her mid-teens and of which her recollection is inaccurate and unreliable. In particular, the areas of Wyong and Windang are in opposite geographical directions from the plaintiff’s home. And the difference between meeting her parents upon her return at Central Station, as opposed to her father driving to collect her, are not features of the plaintiff’s account of events which are reconcilable with a clear or accurate memory of this episode.

78. This episode serves to reinforce the conclusion which Ms Coote expressed about the plaintiff’s relationship with her parents, and as well, the findings which I have made about the relationship.

History at Sutherland Hospital, Meridian Clinic and Central Sydney Area Health Service Before 2006

79. On 10 September 2002, when she was 19 years old, the plaintiff presented the Emergency Department at Sutherland Hospital in the early hours of that morning. She had deliberately slashed her left arm with a pair of scissors. She informed the Emergency Department that she was then being treated for depression. She also told them that she had a background of bulimia for six years.

80. It appears that she had deliberately attempted to harm herself after an argument with her boyfriend, Rabih. The plaintiff informed the hospital that she felt unable to cope and did not know what to do and decided to self-harm. When examined in the Emergency Department, there were 10 lacerations on her forearm. Her parents had taken her to hospital.

81. She expressed remorse and regret at her actions to the staff at the hospital. She denied any formed suicidal intention either at that time or any previous occasions. However she did disclose that she had had several moments of contemplating standing in front of a train but had no formalised plan to give effect to those thoughts.

82. The plaintiff’s presentation was discussed with a mental health team at the hospital, who formed the view that it was appropriate for her to be discharged home under the supervision of her parents. She was asked to return for further consultation.

83. Whilst she was being assessed at Sutherland Hospital on 12 September 2002, an intern psychologist undertook a comprehensive assessment, and recorded the findings in a lengthy document with standard headings. Under one of the headings “Abuse/Exploitation”, where there is provision for a sexual history to be recorded, the psychology intern wrote:

“No reported sexual abuse. However CT [client] has been subjected to inappropriate situations of a sexual nature: see Development.”

84. At that time the plaintiff gave a history of physical abuse by her father of her and her mother in the past. The note was expanded under the heading “Development”. It says

“CT [client] reports that she recalls number of events that were difficult to cope with:

-    feels mother favours youngest daughter

-    heard father talking to mother and coercion into sex

-    saw photographs of her mother tied up, naked, distressed by father

-    approached father, he replied ‘I don't regret doing it, but I regret that you saw the photos’

-   father had an affair with mother's best friend

-    finds pornography around the house."

85. She gave this relationship history:

“Has unstable relationships with peers, boyfriend, parents and previous co-workers. Was ostracised at school by peers and consequently had to change schools from Engadine to Heathcote High. Client states that she ‘hates’ father. Client reports suffering from emotional and physical abuse by father. Reports a background of emotional invalidation by parents.”

86. I am satisfied that these reports by the plaintiff to the intern psychologist, who is likely having regard to his position and the purpose of this consultation to have accurately recorded what he was told, accurately reflect her feelings and her perceptions of her family relationship at that time. Her reports of the events described are largely, although not entirely, corroborated by other evidence. This description, including in particular the background of emotional invalidation of the plaintiff by her parents, is of significance in later consideration of the expert opinions.

87. As part of follow-up investigations by the hospital, on 13 September 2002, a registered nurse received a phone call from Dr Michael Kohn with whom the plaintiff had been consulting. Dr Kohn described himself as a paediatrician who specialised in eating disorders of young people. He told the nurse that he had seen the plaintiff on two occasions. The nurse also recorded that Dr Kohn had told him that there was a counsellor, Vicky Ruhfus, a specialist in eating disorders at the Meridian Clinic, who had been present during his consultations. The plaintiff was encouraged to resume her consultations with Dr Kohn.

88. The following day, on 14 September 2002, Ms O'Brien telephoned the hospital on behalf of the plaintiff. She asked that the clinical nurse specialist, I assume in the mental health team, speak with the plaintiff. The plaintiff was put on the phone and reported that she had seen her ex-boyfriend on the previous Friday night. She reported that her boyfriend would not return any phone calls. The nurse made this note of their conversation:

“… she cut herself last night with a knife/scissors, broken skin but is not as deep as the other ones. Client states she doesn't feel like doing anything. Client states ‘having thoughts to end it all’ and ‘doesn't want to be here’. Client unable to guarantee safety but nil plan of suicide. Client describes that she cuts herself to ‘take the pain away’”.

89. The plaintiff was asked to return to the Emergency Department at Sutherland Hospital for review, which she did.

90. She was reviewed by a psychiatrist later on 14 September. Although the content of this consultation was not dealt with explicitly in the oral evidence, the Psychiatric Registrar made at a very full and, I am satisfied, accurate note of what he was told in the consultation. It is apparent from that note that:

1. the plaintiff had been in a relationship with her boyfriend for about 10 months. The boyfriend was Rabih, who was a Muslim. Her parents did not like him as her boyfriend;

2. the relationship between Rabih and the plaintiff was volatile, and verbally abusive;

3. she gave a history of past depression, bulimia nervosa and anxiety about low self-esteem, regarding herself as being fat and ugly;

4. the plaintiff’s past social history was recorded as:

“Un-recalled childhood. She says she's too tired to think about it. Mother and father separated when she was five years old. Got back together a few years ago.”

5. of her boyfriend she said:

“Her present BF, Rabih, is the best. She wants him back. Their relationship on and off. Frequent break up because of petty problems. … They have sexual relationship on a regular basis.”

6. upon a mental state examination, the plaintiff was able to give a full and comprehensive account of herself. She was cooperative, spoke in a normal manner which was both relevant and comprehensible. Her mood was depressed. She expressed a number of suicidal ideations.

91. Apparently at the end of the consultation, the plaintiff and Ms O'Brien sought permission from the hospital staff to eat at the hospital cafeteria which was granted. They did not return as they had been asked to. In a later phone call, Ms O'Brien informed the Psychiatric Registrar that the plaintiff would not come back to the hospital and that she declined to be admitted. Her mother said that the plaintiff preferred to remain at home.

92. Included in the history given to the Psychiatric Registrar, was an event said to have happened four days prior to the consultation. The Registrar’s note records this:

“4 days prior to consult, the patient went to the pub with father and some of her friends. She took six glasses of hard liquor which made her tipsy. She called her BF [boyfriend] to inform him that she will kill herself that night. She inflicted slashes on her R arm while she locked herself in her room. The distraught parents bought her back to [emergency department].”

93. This account seems to refer to the events immediately prior to the plaintiff’s first attendance at Sutherland Hospital on 10 September 2002.

94. At no time during any of her visits to Sutherland Hospital in September 2002, or in any of her consultations over that period, did the plaintiff disclose any history of sexual abuse at the hands of her father as a young child, or at any other time, although she disclosed one event which in evidence she described as occurring at the same time as, or else contemporaneously with, one of the specific episodes of sexual assault. The plaintiff accepted that by the time she attended Sutherland Hospital she had already experienced a flashback, discussed in more detail later, as a result of which she had become aware of the episodes of sexual assault upon her, by the defendant.

95. A few days later, on 17 September 2002, the plaintiff again harmed herself. She was brought by her father to the Emergency Department at Sutherland Hospital. She gave a history on that occasion of a relationship breakdown with her boyfriend. She said that she felt upset, rejected and unloved. She told the Psychiatric Registrar that she had been cutting herself on a daily basis over the last few days. She had done so impulsively and it temporarily relieved her emotional tension. She did it, she told him, to escape from stressors. She did not further specify what those stressors were, although it is clear that the relationship breakdown with Rabih was one of those.

96. The Registrar noted that the plaintiff had been made by her family to move from the external bedroom in the converted garage into the house, and that there had been arguments over her lifestyle and her attempts to re‑contact her boyfriend. The Registrar noted that the parents were struggling to find a balance between over-protection because of their concern for the plaintiff’s safety, and encouraging autonomy and responsibility in the plaintiff.

97. Upon assessment, it was observed that the plaintiff was preoccupied with reconciliation with her former boyfriend. It would appear from what she said that she had rejected his culture and this had led in part to the breakup. She said that she was looking forward to a planned trip away from home with her family for a few days respite. In discussion with her parents and the plaintiff, a plan was formulated to assist the plaintiff's ongoing psychological state.

98. The notes record a series of subsequent and ongoing telephone calls between staff of the mental health team at the Sutherland Hospital and the plaintiff. It appears from the notes taken of the contents of these calls that in about late September or early October the plaintiff moved out from her parents’ house and went to live with her grandparents in the Revesby area. Contact ceased with the mental health team at Sutherland Hospital in early October 2002.

99. On 11 September 2002, Dr Michael Kohn, an adolescent paediatrician, wrote a report to the plaintiff’s general practitioner with respect to a recent consultation, the date of which was unclear. In it he said:

“Jayne has struggled with an eating disorder over the last five years. Initially she had a restrictive eating pattern which developed into abstinence and binge/purge cycles. … Jayne’s low mood and loss of appetite regulation is accompanied by frequent and obsessional thoughts with respect to food.

Jayne's parents found out about her bulimia one month ago. Despite the family history of domestic violence and alcoholism, Rod and Julie are supportive of treatment for their daughter’s eating disorder. Jayne is also in a peer relationship with Rabih. This is the first serious relationship since the breakup with her ‘first love’ prior to her HSC. Jayne’s presentation has become further complicated following a recent episode of self-harm …

Her current distress coincides with a breakdown in her current relationship and disclosures about her eating disorder and previous abuse during an initial consultation with Ms Ruhfus, a counsellor in the Meridian Clinic.

… I look forward to continuing to liaise with Jayne and her parents to support management of both Jayne's mood and eating disorders.”

100. The evidence did not address the term “previous abuse" which was used by Dr Kohn in this report, no detail was given orally of what was being referred to, and it is simply not possible to draw any specific conclusion from the phrase about what it was that Dr Kohn was referring to. As Dr Kohn (who was not called as a witness) was referring to a consultation at which he was not present, caution needs to be exercised to avoid speculation about what he was referring to. No notes have been tendered which recorded the primary consultation at that time with Ms Ruhfus, a counsellor at the Meridian Clinic. Ms Ruhfus was not called as a witness. No explanation was given for her absence from the proceedings. The plaintiff did not give evidence about what she had said to Ms Ruhfus (or Dr Kohn) during this consultation. It is not possible to, and I do not, conclude that the plaintiff made any complaint to Ms Ruhfus that the defendant had sexually abused her.

101. As well, it is curious that Dr Kohn would record that the defendant and Ms O’Brien only found out about the plaintiff’s bulimia in August 2002. No doubt this was what the plaintiff told him. But, as Ms Coote’s reports show, the plaintiff’s parents had been aware for many years of the plaintiff’s eating disorder.

102. On 26 February 2003, the plaintiff again presented to the Sutherland Hospital with a history of deliberate self-harm. When first seen at the Emergency Department at the Hospital, she described that two days earlier she had cut her wrists. She gave a history to the attending doctor of having been pregnant to her boyfriend, which pregnancy had been terminated at 20 weeks. The note continued:

“? Previous sexual abuse when intoxicated.

Doesn’t get along with father → wouldn’t go into detail.

Previous eating disorder [about] age 14.

…

Broke up with boyfriend again / heated argument Monday 2/7 ago → went to Woolworths, stole scissors, slashed left wrist with suicide intent.”

103. On examination, there were both superficial cuts to her wrist and a deep 2cm cut through the fascia. She required sutures. A question arose as to whether she needed to be admitted perhaps as an involuntary patient.

104. This recorded history containing the reference to possible sexual abuse is the first direct record in evidence of a history given by the plaintiff that she had been the victim of sexual abuse. She was then almost 20 years old.

105. Three observations may be made: first, in the history given by the plaintiff there is a link between the abuse having occurred whilst she was intoxicated (which excludes it being a reference to the abuse which she says occurred up to when she was 14 years old); secondly, her memory of the abuse seems, at best, to be a tentative one, accompanied by doubt and a lack of any detail including the name or any description of the perpetrator, although the next line of the note suggests that her father may possibly have had something to do with that sexual abuse – but, if he did, no connection was made by the plaintiff whilst giving this history; thirdly, the history which she gave was in one respect, to her knowledge incorrect.

106. The respect in which this history was false to her knowledge was that the plaintiff denied to the doctor any past history of illicit substance abuse, whereas on her evidence, by that time she was accustomed to using illicit drugs such as marijuana.

107. Shortly after this initial consultation in the Emergency Department, she was seen by a member of the psychiatric team by way of psychiatric triage. The following was recorded:

“Presenting problem and situation

Denies actively suicidal.

CX: 7/12 ago was last time [before] this time, and 3-4 days ago.

Bulimia – seen him 1x, had abortion to b/f 7/12 ago.

Was having dreams re childhood issues? Sexual abuse – unsure - don’t want to think about it.

At the time [relationship] probs + [increased] ETOH → attempts kill self.

Last 2x were to kill self – needs help – B/f wants to try and sort things out with himself and cope with her.

‘I hate myself for everything I’ve done’, ‘I lost my parents to ringing [psychics]…’.”

108. Again, it should be noted that to the extent that the plaintiff gave a history of sexual abuse during her childhood, the history was one of uncertainty, and an association with dreams of what occurred rather than a clear memory. There was no association between her memories and the fact that the perpetrator was her father.

109. The plaintiff also described symptoms of panic attacks, particularly in response to arguments with her boyfriend or if she felt her boyfriend was rejecting her.

110. Later during that consultation, the plaintiff gave a further history that her father had been physically abusive to her, but that he would not admit such abuse. She said of her father that he “belts the shit out of me”. She said he was an alcoholic and that she had family issues which she wished to discuss in private. The evidence does not reveal what those further family issues were, or whether there was any further private discussion.

111. A relatively short time later, on 8 March 2003, the plaintiff again presented at the Sutherland Hospital with a 10cm laceration on the volar side of her left forearm. The volar side is the inside of the forearm which is the same side as the palm of the hand. It required suturing. The records note that she was brought in to the hospital by ambulance from Lantana Road. She was accompanied by her mother. The Psychiatric Registrar had a long consultation with her, and took extensive and detailed notes. It was noted that the plaintiff was living in the converted garage at her parent's house. It was noted that she had presented to the hospital following:

“impulsive laceration to left forearm following ongoing arguments and conflicts with ex-boyfriend (Rabih) (on and off relationship past 18 months – currently broke up yesterday)”.

112. Ms O’Brien reported to the Psychiatric Registrar that she thought the plaintiff was currently obsessed by a “pathological” attachment to her ex-boyfriend. She said she was constantly calling him up on the phone during both day and night. She had run up a phone bill of $2,000 calling psychic help lines regarding her relationship with her ex-boyfriend. It was recorded that the plaintiff was stealing money to pay for her phone bill. Ultimately, it seems that this telephone bill was paid by the defendant.

113. The plaintiff’s relationship with Rabih had apparently come to a head on the previous evening when, having visited his house, she had been told that she was no longer welcome to visit Rabih or his family there. She tried to visit her ex‑boyfriend at work and was told by him that she needed psychological help and that she was no longer to contact him. Apparently she returned home, found a knife and deliberately lacerated her wrist. She had sufficient insight to recognise that her attempts at self-harm were associated with breaking up with her boyfriend and a resumption of their relationship. She said:

“Every time I break up I do this to myself – I did it twice previously and he came back.”

114. She gave an extensive history to the Psychiatric Registrar of everything in her past which she thought was relevant in answer to the questions she was asked. There was no reference to any past history of sexual abuse. The Registrar concluded that this was a deliberate self-harm attempt of an impulsive kind, secondary to a relationship breakup with her boyfriend and her perception that she had been abandoned and rejected by him. After receiving treatment for her laceration, she was discharged home to be looked after by her mother.

115. Follow up contact occurred with staff of the hospital. In those notes of ongoing care, there is a record of a telephone conversation between Dr Kohn and a clinical nurse supervisor at Sutherland Hospital on 12 March 2003. It reads:

“Received phone call from Dr Kohn who saw client and family today. States client engaged well and is agreeable to regular follow up appointments. Will be seeing client in 2 weeks on 2/4/03 and then will see client every 2 [weeks]. Dr Kohn will be focussing on day to day coping strategies and monitoring medication. Dr Kohn feels client could benefit from sexual assault counselling. … Dr Kohn feels ongoing [Acute Care Treatment Term] involvement not further required after linking client with sexual assault services.”

116. The staff at the Sutherland Hospital made arrangements for the plaintiff to be seen a few weeks later by the Sexual Assault Service at St George Hospital, which seems to have been a referral consequent upon the recommendation of Dr Kohn in the course of the telephone called referred to in the note. On 13 March 2003, this arrangement was discussed by telephone with the plaintiff. The note of that discussion is as follows:

“P/c to client and advised a sexual assault referral to St George Sexual Assault Service.”

117. This seems to be the first record of any reference to sexual assault counselling other than the somewhat Delphic reference in the hospital records in February 2003, at [102] above, and the reference in Dr Kohn’s letter of 11 September 2002 to “previous abuse”.

118. Dr Kohn sent a further report about a consultation with the plaintiff on 12 March 2003. He recorded that it was the first time that he had seen the plaintiff in six months. He recorded the following:

“Jayne’s principal distress currently arises from anxiety symptoms. She reports perseverative and intrusive thoughts with panic attacks. She is conflicted from her memories about earlier abuse and pregnancy earlier this year.

…

During today’s consultation Jayne was able to contract for safety. She was accompanied by her parents who remain supportive, though clearly there exists an element of tension within their relationships.”

119. Dr Kohn was not called to give any evidence in the proceedings. If there had been any concern on his part about any risk that the plaintiff may be subjected to sexual abuse by her father, then the remarks in the second paragraph referred to above would be most surprising. It seems to me to follow that, by this time, Dr Kohn was satisfied that whatever had previously occurred, if anything, he did not need to recommend to the plaintiff, who was his patient, that she remove herself from having any contact with the defendant, or from living with her parents in the family home.

120. The plaintiff was readmitted to Sutherland Hospital for surgical treatment of an infection in her left wrist laceration. She entered the hospital on 19 March 2003, underwent a procedure on that day and a further procedure on 22 March 2003. Her father collected her from the hospital and she was discharged into her parent’s care and returned home.

121. In the course of the admission, the plaintiff was seen and assessed by the clinical nurse consultant in psychiatry. The nurse took this additional history:

“●   known to mental health (ACTT)

●   chronic suicidal thoughts

●   Hx of 2-3 attempts of cutting wrist in the context of relationship problems and family stress

●   eating disorder

●   ? sexual abuse

●   has a private psychiatrist and counsellor.”

122. The report of Dr Kohn of 2 April 2003 casts little further light upon the matter. He recorded that the plaintiff had moved back into her family home and that she was yet to engage in individual counselling which was to be arranged with the assistance of the Sutherland Hospital. He added this comment:

“I have continued to encourage Jayne to engage in local counselling around her assault issues and then she’ll continue to be supported around her general mood and eating disorder issues with Ms Vicky Ruhfus in the Meridian Clinic.”

123. A letter from Dr Kohn of 21 May 2003 is a little more revealing. He said:

“Over the last 6 weeks Jayne’s mood, eating disorder behaviours and self-harming have continued to be well contained. With her elevation in mood she reports feeling ready to ‘return to work’. …

…

Two destabilising influences in Jayne’s life persist. She continues to live at home and experience an acrimonious relationship with her father. She remains angry at his philandering and concern about the possibility that he had sexually abused both Jayne and her sisters. Certainly she reports ongoing verbal abuse by him. The other destabilising influence pertains to Jayne’s ex-boyfriend, Ravi [Rabih], who has recontacted her once again.

Over the next month, Jayne will continue on Luvox (100mg at night) and look to opportunities for individual and sexual assault counselling…”

124. Three matters ought to be noted about this report. The first is that there is a clear expression of strong dislike by the plaintiff of her father, and a rational reason for that, namely, an allegation of unfaithfulness by him. Secondly, there is an expressed uncertainty, namely, a possibility, that her father had sexually abused her (although not that he had verbally abused her). Thirdly, there is, for the first time, a suggestion that such sexual abuse was also perpetrated by her father upon her two sisters.

124. In a report of 10 December 2003, from the Meridian Clinic, although it is unclear who the author is because the report is unsigned, the following appears:

“Jayne is continuing to struggle to find ways to address her memories of earlier sexual abuse and continues to meet diagnostic criteria for bulimia nervosa.”

126. In notes prepared by the Central Sydney Area Health Service, there is a reference to history provided on 22 September 2005 which is recorded as an initial contact. The history was taken by a counsellor. The plaintiff was accompanied by a male friend called “Steve”. The plaintiff said in evidence that Steve was a boyfriend with whom she used the drug Ice every day for about two months – which seems to have been the entire length of their relationship. It is unclear if she was affected by Ice when she attended at this consultation.

127. The counsellor recorded the following:

“Jayne reports that she has memories of being sexually abused by her father from a young age. Recalls masturbating in front of her father after having a bath. Younger sister Hayley was also masturbating. Developed bulimia nervosa from a young age 14 – still current but stable. She has attempted suicide and has a history of self-harm. Father denies CSA and mother refuses to believe Jane.”

128. In the evidence of other consultations, the plaintiff did not recount the history given by her on this occasion to anybody else as a part of her history of sexual abuse. Although she apparently had a specific memory of the event, it did not form one of the specific events she relied upon as forming part of her case. She did not give any evidence that she masturbated in front of her father after having a bath, nor did she give any evidence that her younger sister Hayley was also doing the same. Hayley was not cross-examined about this event. In light of the absence of any supporting evidence for those parts of this history, I have concluded that the account of this specific recollection is completely inaccurate.

129. The progress notes made on that day continued with this information:

“Jayne states she is fearful that her younger sister Hayley was also sexually abused by their father as she is starting to display same behaviours and eating disorder as Jane. … Jayne normally works as a dental nurse but has lost several positions due to anxiety. … Recently, she was in trouble with the law and fined $4,000. She began working in a massage parlour to try and earn the money quickly. Reports that she would cry and panic before work every day. She wants to now find a job as a dental nurse and keep away from drugs. She was using ‘ice’ to stay awake at night in the massage parlour. She says that the temptation of easy, quick money is hard to resist but she wants to break that pattern. Expressed some paranoid ideation – it may be drug related. Will go back to GP for assessment re anti-depressant medication and call back if she would like to continue with counselling.”

130. It does not appear that there is any further note of a consultation with the Central Sydney Area Health Service before November 2006 when the consultations with Mr Griffiths occurred.

Interaction with Authorities

131. In the period between 2006 and 2011, the plaintiff had a series of interactions with the NSW Police, and also the Victims Compensation Tribunal (“VCT”). Her contact with the NSW Police was motivated by her desire to have her father charged and punished by a term of imprisonment for sexually abusing her as a child. Her motivation in claiming compensation was, I infer from what she wrote, to obtain monetary compensation to enable her to live independently from her parents and cease to be dependent on them, including by staying at the family home.

132. It is appropriate to note what the plaintiff told these authorities, bearing in mind her recorded motivations.

133. On 21 September 2006, the plaintiff, who by this time was 23 years old, attended the Bankstown Police Station late in the evening at about 10.30pm. She went there to report that:

“… she believed she had been the victim of physical and sexual abuse between the ages of 4 to 18 years by her father …”

134. The plaintiff reported that:

“… she began experiencing ‘flashbacks’ when she was about 19 years of age whilst having sex with her boyfriend. These flashbacks consisted of her having sex with her father.”

135. At this point in time, the plaintiff was only able to give an account of a single particular incident which she says occurred in the converted garage at Lantana Road when she was about 18 years old. According to the Police entry, the plaintiff’s memory was unclear. The Police officer recorded:

“The victim was unable to be specific about any further incidents. She said she was having a lot of problems determining what was real and what memories were actually dreams.”

136. The plaintiff reported to the Police about having concerns with respect to her sisters. She informed the Police that neither of her sisters had ever disclosed any sexual abuse by their father, but that she was of the view that it was occurring.

137. Clearly, the Detective who undertook the interview checked the Police records and noted the following:

“The victim was reported as a missing person in 1998 and stated to police at the time that she was having difficulties with her father. … She did not disclose at this time any report of sexual abuse.”

138. This seems to be a reference to the event recorded by Ms Coote and described at [64] above.

139. The plaintiff was advised that in order for the Police to be able to take a formal statement from her, she would need to be more specific about each of the incidents of sexual abuse. She told the Police that she would attempt to make a list of the actual incidents.

140. It seems that the next time the plaintiff contacted the Police was just over six months later on 27 April 2007, when she telephoned and informed Sutherland Police that she wished to provide a statement to them. The Police contacted Mr Mark Griffiths, who was then the sexual assault counsellor with whom the plaintiff was consulting. They were advised that Mr Griffiths did not think that the plaintiff was in a position at that time to provide such a statement.

141. On 7 May 2007, the plaintiff attended the Kings Cross Police Station to report a sexual assault perpetrated upon her by her father. She had with her a series of notes, but the Police did not regard them as being adequate to enable a full statement to be taken. The Police noted on this occasion that the notes which they plaintiff brought with her:

“… were in no order, detailed a lot of other aspects of the victim’s life including party guest lists, weight management issues etc …”

142. The Police also noted that the plaintiff was very vague, and took a long time to answer simple questions about details of the sexual assaults. They also noted that the plaintiff kept referring back to a single incident of sexual assault by her father. The matter was deferred, to be followed up at a later point in time.

143. On 13 July 2007, the plaintiff attended Sutherland Police Station to report that she had further information about the assaults. Again, she was vague about detail and police did not feel able to properly investigate the matter without some greater specificity.

144. On 11 October 2007, the Police received a telephone call from Mr Griffiths, who informed the detectives that he was of the view that the plaintiff:

“… is now able to recall up to five specific incidents between the ages of 3-14 years old committed on the victim by her natural father …”.

145. On 14 December 2007, the plaintiff attended the Sutherland Police Station by arrangement. She brought with her prepared handwritten notes relating to particular offences. The Police regarded the notes as being vague and having insufficient information for their purposes. The plaintiff was told that she needed to provide greater detail, and was also asked to provide the names of any family members or friends that could provide any form of corroboration with respect to the allegations she was making against her father.

146. There was obviously some further interaction between the plaintiff and the Police because it appears that on 11 March 2008, a statement to be compiled by police was commenced. By 22 March 2008, the plaintiff was informed that the Police had insufficient evidence to charge her father. There seems to have been no further police involvement with the plaintiff and her complaints of sexual assault.

147. In August and September 2006, prior to first attending the Bankstown Police Station, the plaintiff made an application for compensation to the (VCT. In support of that application on 21 November 2006, she made a statutory declaration, in which she declared that she had been sexually assaulted by her father when she was “… a child” and “… a little kid”. She gave this account:

“The sexual abuse occurred on a regular basis until my teenage years. I have flashbacks of the abuse all the time.”

148. She also gave a history of severe physical abuse from around the age of 5 years until she was about 14 years old.

149. In the statutory declaration, she gave an account that she had disclosed the occurrence of the sexual and physical abuse to others. She said:

“I had told people that my father was sexually and physically abusing me, but no one was doing anything about it. My mother turned a blind eye all these years. She was always aware of the abuse over all these years. … My own mother disregarded what I was saying… My mother used to tell me, don’t tell anyone what happens in this house.”

150. In the course of making the application to the VCT for compensation, the plaintiff provided, seemingly to the VCT, what seems to be a diary note written by her on Saturday 18 November 2006. The diary recorded this:

“Today was painful. Reading a book I borrowed from Greenacre Library – something The Courage to Heal. I had lots of tears, I could feel deep rooted pain come up through my body. I will never forget the feelings, they are a mixture of controlled anger (if I let it out – it is so strong, I would be known as a complete wacko). I can’t think of anything other than a torando inside. Whatever it is, it is not pleasant and I don’t like people to see A panic attack!

…

I hate my father, may he root [scil. rot] in hell.

…

I want Dad in prison and I want him to tell my mother what he does – (sic)”

151. As earlier recorded, at [135], about two months prior to the plaintiff making this note, and reading the book referred to, she had been quite uncertain about any specific recollection of sexual assaults by her father. She could not determine satisfactorily for herself the difference between any reality and her dreams.

152. The diary note continues with six entries against which there is a star, in which the plaintiff asks herself a number of questions and then underneath, she appears to record an event which occurred at 124 Lantana Road involving her father assaulting her whilst they were both naked.

153. The applicant’s claim to the VCT was ultimately unsuccessful. It terminated with a decision of the Assessor of the VCT on 28 November 2011.

154. At the same time as the plaintiff was in contact with both police and the VCT, she was being treated by Mr Mark Griffiths. It is appropriate now to examine the various histories which she gave to Mr Griffiths.

Sexual Assault Counselling with Mr Griffiths

155. Mr Griffiths is a senior psychologist who worked at the relevant time for the CSAHS. Although the plaintiff initially presented there in September 2005, the first note of substance made by Mr Griffiths concerned a consultation with the plaintiff on 24 November 2006. At that stage, little detail was obtained from her about the sexual assaults but, rather, Mr Griffiths was concerned to assist her to work out a strategy to enable her to prioritise the various issues which then existed in her life.

156. The plaintiff returned on 1 December 2006, about two weeks after the diary note set out at [150]. Mr Griffiths’ note includes the following:

“Jayne says she is finally starting to confront what happened. She told me of a number of incidents and a couple of further details emerged as she told me. These memories were surfacing spontaneously as she spoke, including ‘waking up’ in the bush with her father. Said she could not have been asleep and was therefore concerned and confused.”

157. At that point, the plaintiff informed Mr Griffiths that she thought she may return to the scene of one or more of the incidents “… so she could remember”. Mr Griffiths strongly discouraged her from doing that.

158. Mr Griffiths noted that the plaintiff appeared “to disassociate” on a number of occasions during the interview. He described what that meant. He said that there was a “blank stare – immobilised, not speaking”. He recorded other details which emerged. Included in that record are statements to the effect that the plaintiff was certain that her mother knew she was being abused and that her mother herself was the victim of physical abuse from the defendant. She gave this account:

“•   once had a flashback when about to orgasm ‘suddenly I saw my father with his head between my legs’.

•   another time a flashback resulted in her slashing her wrists and being hospitalised at Sutherland Hospital.

…

•   last assault (which involved intercourse) was on a pink bed – remembers focussing on the pink bed rather than what was happening.

…

•   has told a number of friends – many have said ‘we always knew something was happening’. ”

159. Mr Griffiths noted that the plaintiff was asking a lot of questions of him about her confusion and that at that stage details of her abuse were “tumbling out in a chaotic order”.

160. At a consultation on 7 December 2006, the following was recorded:

“Miserable at [high school]. Eating disorder started about [age] 14. Came home after school and binged on food. Thinks the sexual abuse was stopping about then. Actively avoided [father] ‘I hated him’. [Possibly] before this found porn photos of mother. Told mother and took no action, told father who said ‘I don’t regret doing it – just regret you seeing them’. Photos looked like mother was drunk. She was naked and tied up.”

161. The consultation included also a reference to having a flashback. Although the detail of that is recounted elsewhere, Mr Griffiths noted that, having given an account of the flashback, the plaintiff thought that what she had seen “… explains why dad would come into my room all the time”.

162. The plaintiff continued to see Mr Griffiths over a period of some years. A particularly significant consultation occurred on 11 October 2007, that is, nearly a year after she first saw Mr Griffiths. The context for this consultation was that the plaintiff was frustrated that she had not been able to make a police statement, and that she wanted assistance from Mr Griffiths to enable her to do so. Mr Griffiths asked her to outline specific events for which she had a definite memory, and could locate at a particular time. This apparently caused the plaintiff stress and she told Mr Griffiths a couple of times that it was difficult to separate events and instances because the sexual abuse had happened so much.

163. However, Mr Griffiths recorded a series of specific events, and the age at which the plaintiff recalled those events as having occurred. It is these events which largely, but not entirely, form the basis of the plaintiff’s claim in these proceedings for specific instances of sexual assault perpetrated upon her by her father.

164. Set out below, in a table, are the assaults which were able to be specifically recalled by the plaintiff during the consultation of 11 October 2007:

Incident	Age	Description	Location
1.	3 years	Father performed oral sex on her.	At the house in Macquarie Fields.
2.	5 years	At home in parents’ bed. Father made her touch and lick her mother’s genitals.	At the units in Engadine.
3.	8 years	Had gone to the “bush” with “Ken”, though Ken did not witness abuse. This was the first time her father penetrated her anally and she remembers it because of the extreme pain, [and] that the location was in the bush.	In the bush
4.	14 years	This time remembers “both naked”, he turned her over and asked her “what hole do you want it in?”	At home in parents’ bed [124 Lantana Road]
5.	14 years	She woke up to him being on top of her and vaginally penetrating her with his penis. He then flipped her over and did it anal.	In the pink bed [124 Lantana Road]

165. She went on to give a further general description in the following terms:

“More general memories include many times of having his genital area in her face. Him holding her head and his penis against the back of her throat. Also that sometimes he would put a belt around her waist ‘and pull it really tight’ then bend her over and pull the loose end of the belt and penetrate her from behind.”

166. On 26 October 2007, in a further consultation, the plaintiff informed Mr Griffiths that she was not sure if the last episode of sexual abuse was when she was 15 or 19. She also gave an account, which was recorded by Mr Griffiths as follows:

“She describes aspects where her father appeared to believe he was in a relationship with Jayne – spoiling her, setting her up against her sisters and even her mother. Jayne was like her mother’s competitor. Remembers aspects where the abuse was discussed openly with Jayne being told in front of her mother, that she didn’t do it properly and Jayne being in tears asking to be told how to do it.”

167. On 9 April 2008, the plaintiff gave the following history to Mr Griffiths:

“During statement to detectives, Jayne reports she has now clarified for herself the ‘pink bed’ episode. And as a result remembered details of another episode. Says abuse in the pink bed (her bed) occurred when she was 15. She had confused it with another episode – last assault she believes, which occurred when she was 19 in her sister’s bed. … This time she had been drinking with her father – ‘he got me drunk, topping up my drinks’. Says she feels that was the last assault but believes many between ages 15 and 19.”

168. The plaintiff ceased to attend for counselling with Mr Griffiths in April 2009 because he left his role. After discussion with the plaintiff, he referred her for further counselling to Ms Turner at the St George Sexual Assault Service.

169. The plaintiff saw Ms Turner during 2009 on a number of occasions. However, there is no note between June 2009 and about April 2011 that indicates that the plaintiff continued to consult a sexual assault counsellor at St George Hospital.

170. The plaintiff first consulted Dr Robert Gordon on 1 May 2014. From that time until the hearing, she consulted with him, and received treatment by way of psychotherapy on a very regular basis. Initially she attended three times a week, and that seems largely to have continued. More recently, the frequency of her visits to Dr Gordon appear to have reduced.

171. Throughout the period that she was consulting with Mr Griffiths, and also whilst consulting with Ms Turner at St George Hospital, the plaintiff continued to consult with and be seen by a number of practitioners with respect to her eating disorder. During that time, she had a disrupted employment history and on many occasions has not stayed in particular positions for very long. Sometimes, this is due to her eating disorder. At other times, the cause of her leaving her employment is unclear.

Flashback of Initial Memory of Abuse

172. It is convenient to describe the plaintiff’s accounts, both in and out of court, about a flashback which occurred and caused her to recall previously suppressed memories of episodes of sexual abuse by the defendant.

173. Her evidence in court was that she had no recollection of the occurrence of any sexual abuse by her father at any time prior to the occurrence of a flashback which occurred when she was about 19 years old and whilst in a relationship with Rabih. This initial flashback occurred prior to her first attendance at Sutherland Hospital for treatment for her self-harming behaviour.

435. The plaintiff’s claim that her mother knew about the assaults at the time they were occurring is also inconsistent with the plaintiff’s diary note of 18 November 2006, the contents of which are set out at [150] above. There the plaintiff expresses the desire for her father to be put in prison and for him to tell her mother “what he does”. The plaintiff’s expressed desire for her father to inform her mother would be inconsistent with her account that her mother knew of the assaults. The existence of this note is another matter which casts doubt on the veracity of the plaintiff’s claim.

436. I am not prepared to accept that Ms O’Brien knowingly gave false evidence and I am not prepared to accept that the plaintiff’s allegations that Ms O’Brien was a knowing participant in, and connived with the defendant in, the alleged sexual assaults of the plaintiff. I am satisfied that Ms O’Brien did not tell the plaintiff to cover up the assaults, and did not counsel her about, or in any way discuss how the plaintiff should behave.

437. Another reason why I cannot accept the suggestion that the plaintiff’s mother knew of the assaults and instructed, or counselled, the plaintiff to conceal them is because such conduct would be inconsistent with the evidence which indicated that Ms O’Brien was a diligent mother. Ms O’Brien, after moving to the Engadine flat, and then to Lantana Road, did not work in paid employment. She stayed at home, with her principal role being to care for her three children. Ms O’Brien supported the plaintiff (as did the defendant) in a wide range of activities when she was in primary school. When the plaintiff encountered a difficulty at high school, Ms O’Brien took the appropriate action to confront the issue and deal with it in a way which assisted the plaintiff. It was Ms O’Brien who took the plaintiff to see Ms Coote when the plaintiff started obsessing about the food she was eating and how it was cooked.

438. She was diligent in seeking out further help for the plaintiff to manage her eating disorder. In addition to taking the plaintiff to see Ms Coote, the dietician, Ms O’Brien took her to the Meridian Clinic to consult with Dr Kohn, and Ms Ruhfus. There is no suggestion that at these places Ms O’Brien was constantly in the company of the plaintiff, thereby preventing her from disclosing any matters which she wished to those doctors. If Ms O’Brien was engaged in covering up the abuse as the plaintiff asserts, then one would have expected that she would have taken steps to stop the plaintiff from giving any such history to either Ms Coote, or to Dr Kohn or Ms Ruhfus at the Meridian Clinic by insisting on being personally present throughout the entire interview. There is no evidence that she did so.

439. As well, the evidence of both Kate and Hayley Gersbach does not suggest that Ms O’Brien was anything other than a diligent and caring parent. No submission was made which identified any reason why she would treat the plaintiff any differently.

440. The conclusion which I have reached is not inconsistent with my acceptance that the plaintiff’s perception described in various histories was that her mother was distant, or else that she felt neglected. That was the plaintiff’s perception and not the objective reality. Nor is the conclusion inconsistent with what I have earlier found about the state of the relationship between the plaintiff and her mother (and father) during 1998 when Ms Coote made the observation she did: see [70]-[71]. That is because the deterioration in the relationship seems to have first occurred at about that time, and that deterioration was not identified as relating to any behavioural feature of Ms O’Brien which indicated that she had abandoned her role of caring for, and being responsible for, the safety and well-being of the plaintiff.

441. I reject the plaintiff’s evidence that her mother knew of the sexual assaults and failed to act upon that knowledge to protect the plaintiff.

442. Another matter of weight to be taken into account in considering the acceptability of the plaintiff’s evidence about the defendant’s conduct, is the evidence of Ms O’Brien that whilst the plaintiff was in primary school, she was involved in the bathing and dressing of the plaintiff (and the other children). She said that she went into the bathroom when the plaintiff was showering. She also said that the defendant did not come into the bathroom where the children were bathing. Ms O’Brien said that at no time did she observe any injuries to the plaintiff of any kind, nor did the plaintiff complain to her at any time that she was sore or else was in pain. It was not suggested to Ms O’Brien that her evidence in this respect was incorrect. Nor did the plaintiff give evidence that she had complained to Ms O’Brien about any pain or soreness which she had.

443. Had the plaintiff been sexually assaulted vaginally and anally as she suggests, whilst she was still in primary school, it would be most surprising if such assaults, involving as they did penetration by her father with his penis and his fingers, did not cause soreness or pain. It may also have caused visible signs of injury by way of bruising and the like. In those circumstances I would have expected that Ms O’Brien would have observed any injury or bruising which might have existed, and that the plaintiff would have disclosed to her any complaints of pain or soreness. If the plaintiff was not walking comfortably, or else was in any physical discomfort, I would expect Mr O’Brien to have noticed. The fact that none of these things occurred supports the contention of the defendant that the assaults of which complaint is made, did not occur.

444. A further factor which counts against accepting the plaintiff’s evidence as to the ongoing course of conduct involving sexual assaults is the nature of the sleeping arrangements in place at the Engadine flat and the house at Lantana Road.

445. The Engadine flat was a two bedroom flat in which Kate and the plaintiff shared a bedroom which was furnished with double bunks. The plaintiff slept on the top bunk and Kate on the bottom bunk. As Hayley was a baby at that time, she slept in a cot in her mother’s bedroom. The Engadine flat was small. Any activities within it were likely to have come to the attention of anyone else in the flat, particularly as the nature of the sexual assaults described by the plaintiff involved noise and movement.

446. As was previously described, the Lantana Road house was described as small with very thin walls. It had three bedrooms. The defendant and Ms O’Brien occupied one, and the other two bedrooms were shared between the three siblings. According to Kate’s statement, her earliest memory of the living arrangements at Lantana Road was of her sharing a bunk bed with the plaintiff in a room that faced towards the backyard. She said that the room had bunk beds and that the plaintiff slept in the top bunk and she was on the bottom bunk. She said that there came a time when the plaintiff was too big for the bunk bed, so she was moved to her own bed in a separate bedroom and that she and her younger sister, Hayley, occupied the bunk beds.

447. Kate gave this evidence:

“I completely deny the allegations of sexual assault made by the plaintiff against dad contained in the plaintiff’s statement. I shared a room with the plaintiff during some of the time that the sexual assaults are alleged to have occurred, and to my knowledge no assaults of any kind occurred.

The walls at Lantana Road are very thin. I couldn’t get away with anything growing up because it was so easy to hear throughout the house.”

454. The plaintiff agreed in cross-examination that the Lantana Road house was a very small one. She agreed that things which were happening in one bedroom could be heard in the adjoining bedroom. In particular, she agreed that if someone was screaming or making a noise in one bedroom, that noise could be easily heard in the other bedroom.

455. The accounts given by the plaintiff of the assaults included accounts in which she recalled waking up after the assault had occurred whilst in her parents’ bed. At other times, she gave accounts of her father entering her room whilst she pretended to be asleep and carrying out sexual assaults upon her. It is not particularly clear whether these assaults are said to have occurred whilst she was sharing a bedroom with her sister, Kate, or while she had or own bedroom or perhaps both. However, I am satisfied that the nature of the sexual assaults, particularly having regard to the physical movements which were required by her father when perpetrating assaults involving either vaginal or anal intercourse, must have involved a degree of noise which, having regard to the layout of the house at Lantana Road, must have been able to be heard by others in the house. I do not accept that the defendant could have entered the plaintiff’s bedroom (whether she was sleeping alone or sharing a bedroom with Kate) and carried out the assaults without that being heard by, and obvious to, the others in the house.

456. Similarly to the extent that there were any assaults in the plaintiff’s bedroom at the Engadine flat, I am persuaded that Kate or Ms O’Brien would have heard what was going on. I appreciate that Kate was quite young at that stage, but nevertheless I would have expected her to have made a comment at the time either to her father or to her mother and to have remembered the incident. None of these features which one would have expected actually formed any part of the evidence.

457. These conclusions about the physical environment tell strongly against the plaintiff’s evidence about a course of conduct involving sexual assaults upon her by the defendant in her bedroom at night being accepted.

458. Another matter of evidence, seemingly inconsequential in content, helps the resolution of the conflicting accounts because it demonstrates a faulty childhood memory on the part of the plaintiff. In her cross-examination, the plaintiff gave evidence that she recalled an incident whilst she was living at the Engadine flat when one of her sisters, she was pretty sure that it was Hayley, ran into a big fish tank in their neighbour’s apartment, cutting her head and smashing the fish tank. The plaintiff was shown her handwritten note to the effect that she herself had broken the fish tank “… @ the units in Engadine”. She said in evidence that she was referring to a smaller fish tank in her mother’s flat which was broken by her when she was cleaning it.

459. Ms O’Brien’s unchallenged evidence was that Hayley had smashed a large fish tank in their neighbour’s apartment and that the Gersbach family had never owned, or had at the Engadine flat or in Lantana Road, any fish tank at all. She also said that the plaintiff had never broken any fish tank.

460. What is clear is that the plaintiff’s handwritten note has transposed who was responsible for the well-known incident (within the Gersbach family) so as to be the centre of the incident. Her note was unreliable and she must have known that it was. When confronted with that note, and the inconsistency of it with her earlier evidence, the plaintiff advanced an inaccurate explanation. In that way, the plaintiff’s evidence was shown to be unreliable when recalling a childhood event – because there was, simply put, no fish tank that she broke at any time, contrary to her own diary note and to her evidence.

461. In considering the accuracy of the plaintiff’s evidence about her life and the various sexual assaults which she claims her father perpetrated upon her, which she has described in histories over time, it is necessary to bear in mind the plaintiff’s admitted illicit drug use.

462. In particular, it is apparent from the evidence, and the tendered medical records from about 2004 (if not earlier), that the plaintiff was smoking “Ice” (crystal methamphetamine). She was a regular user of Ice and obviously whilst under its effect, behaved in ways which were entirely inappropriate. There are a number of instances where it is apparent that whilst affected by the drug or else whilst recovering from its use, the plaintiff has told mistruths to people. Whilst it is not directly recorded that the plaintiff was observed to be heavily affected by illicit drug use during any counselling sessions with Mr Griffiths or Dr Gordon, I cannot completely exclude the possibility that some inaccurate or exaggerated histories may have been given whilst the plaintiff was under the effects (to some extent) of her drug use.

463. I have kept in mind this factor in weighing up the reliability of the histories given by the plaintiff, and whether her evidence is acceptable.

464. A central submission of the plaintiff was that the existence of the diagnosis that she suffered from BPD was proof of the fact that the sexual assaults had occurred. This was a substantial reason, it was submitted, why the Court should accept the plaintiff’s case.

465. As the review of the evidence on this topic shows, Dr Phillips’ view must be taken to be that the plaintiff’s BPD had a cause other than childhood sexual abuse (because he concluded that the abuse had not in fact occurred).

466. Mr Griffiths’ evidence suggested that there was sufficient evidence of perceived traumatic or adverse events in the plaintiff’s life, without any sexual assaults occurring, which could constitute factors of sufficient severity to cause BPD.

467. Dr Rodriguez gave evidence on this topic which I thought was balanced. The evidence which he gave, set out at [360] – [365] above, made it clear that there might be a sufficient factual basis for the identification of a cause for the plaintiff’s BPD other than sexual abuse.

468. The basis for Dr Rodriguez’s opinion on the question asked had these elements in the plaintiff’s perception:

1. the administering of corporal punishment during primary school on more than one occasion over a period of time;

2. the corporal punishment caused distress to the plaintiff;

3. she hated and was fearful of her father; and

4. her mother was distant and disinterested in her.

469. The plaintiff’s evidence-in-chief included specific reference to the fact that whilst she was in primary school she was the subject of beltings by her father with his belt. She described it as happening often, without stopping as she grew older. In cross-examination, the plaintiff agreed that she was very upset when she got “the belt”, and that she remembering being scared of her father. She also said that she regarded him as a very strict disciplinarian who was curtailing her lifestyle and, by the time she was 14, she hated her father for that.

470. In a history which she gave, the plaintiff described her relationship with her father as “acrimonious”. In her diary she recorded that she hated her father, writing “… may he rot in hell”. It is unclear to what this specifically refers, but clearly she did not like her father.

471. I have earlier concluded in [72] above, based upon the reports of Ms Coote, that the plaintiff felt that she had been effectively abandoned by her parents, and did not feel able to seek advice from her mother. As well, the plaintiff’s own statutory declaration, a part of which is extracted at [149] above, provides adequate factual support for the final element in the question posed to Dr Rodriguez.

472. I am satisfied that the question to Dr Rodriguez was soundly based in the oral evidence and in the factual material before the Court, and that his answer is one which ought to be accepted.

473. Whilst it is unnecessary for the purpose of this judgment to make a factual determination of what actually caused the plaintiff’s BPD, I do not accept the case for the plaintiff that in the circumstances proved, there was no possible, or reasonably available, cause of her BPD other than the sexual assaults upon her by her father.

474. In my view, the evidence reviewed provides for a cause, or causes, other than the sexual abuse. In those circumstances, I am unable to conclude that the plaintiff’s diagnosis of BPD is sufficient to prove that she was sexually abused by her father as she claims.

475. That being so, although the fact that the plaintiff has been diagnosed with BPD is consistent with her having been sexually abused, it does not prove that fact. If proof of the plaintiff’s sexual abuse, aside from the existence of her BPD, is inadequate, then the fact of her being diagnosed as having BPD does not establish that the sexual assaults occurred as she claims.

476. In summary, the totality of the foregoing analysis, and taking into account the denials of the defendant and Ms O’Brien; the significant lack of corroboration; and an evaluation of the expert evidence, particularly about the possible causes of BPD, has led me to conclude that I do not accept the plaintiff’s evidence that she was in any way sexually assaulted by the defendant, or that the defendant perpetrated physical assaults upon her of a type which establishes her claim for damages.

477. It follows that the plaintiff’s claim must fail.

478. I can see no reason why upon dismissal of her claim, the plaintiff should not pay the defendant’s costs. Orders to give effect to these conclusions will be made.

Damages

479. Although the plaintiff has not succeeded in her claim, it is appropriate to assess, on an entirely hypothetical basis, the amount of damages to which she would be entitled if her claim had succeeded.

480. The provisions of the Civil Liability Act 2002 do not apply to the assessment of damages claimed in this case because the claim for damage arises from “… sexual assault or other sexual misconduct committed by the person …” within the meaning of s 3B(1)(a) of the Civil Liability Act.

481. The effect of s 3B(1)(a) is that the whole of the Civil Liability Act is excluded and does not apply in respect of the existence of liability on the part of the defendant and any awards of damages, except for the provisions of s 15B and s 18(1)(c).

482. Section 15B regulates an award of damages in respect of a claimant’s capacity to provide gratuitous domestic services to the claimant’s dependants. The damages provided for in s 15 represent a modified form of the damages which were said to be allowable at common law by the NSW Court of Appeal in Sullivan v Gordon [1999] NSWCA 338; (1999) 47 NSWLR 319, which was overruled by the High Court in CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1. Section 18(1)(c) precludes an award of interest on damages of the kind permitted under s 15B.

483. Accordingly, the damages claimed in this case are to be assessed substantially in accordance with the common law, except for the claim for damages for gratuitous domestic services for the care of the plaintiff’s dependent daughter.

484. Although I have found that I am not persuaded that the plaintiff has established liability against the defendant, it is appropriate nonetheless to assess the quantum of damages which would have been awarded if I had accepted the plaintiff’s evidence that she had been sexually assaulted in the ways she described, and that these sexual assaults, either individually or as part of a course of conduct, have caused or materially contributed to the development by the plaintiff of BPD.

485. This is necessarily a hypothetical exercise and involves accepting as true and accurate the plaintiff’s history of what happened to her, how she felt and how she reacted. It also involves accepting the plaintiff’s case that the sexual assaults to which she was subjected as a child caused, or materially contributed to, the development of her BPD. This is contrary to my findings, but nevertheless damages would need to be assessed upon the basis that those findings were erroneous.

486. It is fair to say that the submissions of the parties on how the Court may approach the assessment of damages, should it find that the plaintiff made out her claim for liability on the part of the defendant, were spare and of the most general kind. They were not particularly helpful. Nevertheless, the Court needs to do its best on that sparse material to assess damages.

479. According to the Third Amended Statement of Particulars, being the most recent one filed on 2 December 2016, the plaintiff claimed that as a consequence of the sexual assaults she suffered from a BPD with features of PTSD with associated bulimia, drug and alcohol abuse, self-harm and other features of a disrupted personality. The disabilities which she claims were consequent upon these disorders.

480. The plaintiff claims compensatory damages, aggravated damages and exemplary damages. She has made a claim for past and future medical, hospital and like expenses; she does not make a claim for loss of earnings or loss of earning capacity; she has made a number of claims for care. She maintained these claims under those heads of damages at the conclusion of the proceedings.

481. I have largely referred to accounts given by the plaintiff to various practitioners of the history of the assaults to which she was subjected. I am now proceeding upon the basis that those accounts would be accepted and the effects upon the plaintiff also accepted. There is no need for me to separately repeat those accounts here.

482. In his first report of 12 May 2015, Dr Gordon, who is the only doctor presently treating the plaintiff, described her presenting symptoms at that time in this way:

“Feels depressed, unable to cope, often overwhelmed by emotions, finds herself impulsive and out of control quite frequently. She has little control over her angry impulses …

She does not have these feelings about her daughter.

She cannot trust people.

She suffers from insomnia.

She is smoking excessively (over 30 cigarettes a day).

She is unable to control her alcohol consumption and is frequently intoxicated.

Incapable often just getting things finished.” (sic)

491. Dr Gordon records that over the years the plaintiff has been treated with antidepressants, anxiolytics and occasionally anti-psychotic agents. He recorded that the plaintiff had had multiple hospitalisations for anorexia, bulimia and panic disorders. I add to that description that she had also had a number of visits to, and admissions to hospital to treat her attempts at self-harm. The details of their visits and admissions have been set out earlier.

492. Dr Gordon expressed the view that without ongoing psychiatric treatment, it would be impossible for the plaintiff to maintain any consistent long-lasting occupation. Any such occupation would be fraught with absenteeism, impulsive behaviour, and a significant inability to concentrate for any length of time, which would result in difficulties in her retaining her employment.

493. He was asked what impact the plaintiff’s psychiatric illness would have on her capacity to be a spouse and a mother. He expressed this view:

“Without psychiatric treatment, the ability to maintain a constant caring relationship with anyone be it partner, or child, is markedly impaired.

With ongoing treatment it should be possible to help Jayne to manage her underlying personality difficulties whilst repair occurs. Medication in the form of mood stabilisers, and anti-depressants, help stabilise the personality structure whilst psychotherapy proceeds.

Ultimately these medications will no longer be needed.”

494. It is clear that the plaintiff obtained considerable treatment at the hands of Dr Gordon. The counselling sessions were frequent and intensive. Dr Gordon expressed the view that there had been a marked improvement over time in the plaintiff’s condition. Dr Gordon was asked in November 2016 to express a view as to the plaintiff’s need for lifetime medical and hospital care. He suggested that psychotherapy would need to continue at the rate of three times per week. Each session at that time cost $490. By the time he gave evidence, Dr Gordon indicated that the sessions had reduced in frequency and ultimately would not be required each week.

495. Dr Gordon thought that there was a high probability of intermittent hospitalisation, perhaps on two or three occasions in the future course of her life. Dr Gordon speculated that the plaintiff’s future cost of medication would be between $500 and $1,000 per year.

496. On the question of future care, Dr Gordon said:

“At this stage, because of her underlying significant personality disorder, Jayne would certainly benefit from someone regularly available, perhaps on a twice weekly basis to help organise her way of life. The idea of a ‘drop in’ person of mature age being available to her is an excellent idea.”

497. Dr Rodriguez recommended that the plaintiff have long-term psychotherapy to assister her in controlling her symptoms of PTSD, anxiety, depression and personality difficulties. He suggested a cost for a one hour consultation of between $300 and $400 for the therapy which he described as needing to be intensive.

498. Although the Statement of Particulars contained a claim for the cost of assistance and the provision of care to her child, no evidence was adduced from the plaintiff on that subject. The plaintiff’s daughter was born in February 2014. It is quite unclear from all of the evidence whether the child lives with the plaintiff or with her former partner, who is the child’s father, or else perhaps with another member of his family.

499. The extent to which the plaintiff has contact with her daughter was unexplored in the evidence, as was the time she spends with her daughter giving her care. In those circumstances there is simply no factual material of any kind upon which any award under s 15B of the Civil Liability Act could be made.

500. At the time she gave evidence, the plaintiff was taking a mild tranquiliser which had been prescribed for her by Dr Gordon, but was otherwise not taking any medication.

501. In dealing with the question of the provision of care to the plaintiff herself, such as by having a mature-aged person call in on her a couple of times a week or else be available to be contacted by the plaintiff for assistance with organising her life and activities, and generally helping with organising her affairs, there was no evidence as to the availability of such a carer, nor of the cost for the provision of services from such a person. Whilst this may be “an excellent idea” as Dr Gordon suggested, the evidence does not suggest how or by whom such a service can be provided.

502. As can be observed, there is very little evidence, let alone detailed evidence, of the kind usually made available to assist in the determination of a sum for damages.

503. Nevertheless, that is the state of the evidence and the Court must do its best in all of the circumstances.

General Damages

504. A sum for general damages is one which is allowed by a Court to compensate a plaintiff for all of the physical harm and mental harm suffered by that plaintiff as a result of the conduct of the defendant.

505. It was not suggested that the Court should isolate out each occasion of sexual assault and make an award of damages separately for each. Rather, the plaintiff’s submissions seemed to proceed upon the basis that having regard to all of the assaults which occurred throughout the plaintiff’s childhood, and in light of her current condition which, it was submitted, was causally related to those assaults, the Court should proceed by a single award of damages. This approach seems to reflect what occurred in Varmedja v Varmedja [2008] NSWCA 177 at [154]. It also accords with the approach adopted in this court in XY v Featherstone [2010] NSWSC 1366.

506. It is necessary also to consider the question of aggravated damages which are claimed. Aggravated damages are a form of compensatory damages awarded for injury to a plaintiff’s feelings “… caused by insult, humiliation and the like”: Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1 at [8].

507. In New South Wales v Riley [2003] NSWCA 208 at [127]; (2003) 57 NSWLR 496 at 528, Hodgson JA considered what distinguished aggravated damages from ordinary compensatory damages.

508. At [130]-[131], his Honour said:

“130    If, in addition to ordinary compensatory damages for injury to feelings, aggravated damages are to be awarded, then plainly it is important to avoid double counting; and the question arises, what can the additional aggravated damages be compensation for when injury to feelings have already been included in ordinary compensatory damages?

131    In my opinion, the only principled explanation must be along the following lines. It is extremely difficult to quantify damages for hurt feelings. In cases of hurt feelings caused by ordinary wrong-doing, of a kind consistent with ordinary human fallibility, the court must assess damages for hurt damages neutrally, and aim towards the centre of the wide range of damages that might conceivably be justified. However, in cases of hurt to feelings caused by wrong-doing that goes beyond ordinary human fallibility, serious misconduct by the defendant has given rise to a situation where it is difficult to quantify appropriate damages and thus where the court should be astute to avoid the risk of under-compensating the plaintiff, so the court is justified in aiming towards the upper limit of the wide range of damages which might conceivably be justified.”

509. In practical terms, this has the effect that if the Court were to make an award for general damages which was towards the upper end of the available range, then that would be sufficient to take account of any aggravated damages and would avoid the risk of double-counting. This is the approach which I will take in this case.

510. Taking all of the facts into account and, in particular, the significant disruption to the plaintiff’s upbringing and her adult life, and her ongoing personality disorder, I would award $300,000 for general damages.

511. Of this, $200,000 represents the past. It is appropriate to calculate interest on this amount at 4%: see MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 657. I consider it reasonable to regard the pain and suffering for the past as having been sustained from the time the plaintiff turned 14 – which was a time when most of the assaults had occurred and before her eating disorder manifested. As the plaintiff is now 35 years old, this represents 21 years of interest at 2%, which amounts to $84,000.

512. Exemplary damages are awarded to punish the defendant for engaging in conduct which can be described as showing a conscious and contumelious, or flagrant, disregard of the plaintiff’s rights: Lamb v Cotogno at [20]; Gray v Motor Accident Commission at [12] and [21]. Exemplary damages would not generally be awarded where a perpetrator of sexual assault had been sentenced to a term of imprisonment. Here, there was no police prosecution, and the defendant has not served a term of imprisonment. It is appropriate to award exemplary damages which I would assess in the sum of $50,000.

513. The only evidence of out-of-pocket expenses on the part of the plaintiff was the outstanding amount to Dr Gordon of about $8,000. This amount ought be included in the award of damages.

514. As to the future, it is apparent that the plaintiff will require psychotherapy for some years, at least once, and probably twice, per week. In those circumstances, if one allowed the sum of $400 for each psychotherapy session, it would suggest that a not unreasonable allocation would be $1,000 per month for the next 10 years.

515. Applying the 3% multiplier, this would give a multiplier of 451.8 which, rounded up, results in a sum of $115,000 for future psychotherapy. I allow a modest sum for future medication of $10,000.

516. Accordingly, if damages were awarded they would constitute the following:

General Damages including Aggravated Damages	$300,000
Exemplary Damages	$50,000
Future Therapy	$115,000
Past and Future Out of Pocket Expenses	$18,000
Interest on Past General Damages	$84,000
TOTAL	$679,950

Orders

517. I make the following orders:

1. Judgment for the defendant.

2. Plaintiff to pay the defendant’s costs.

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Decision last updated: 09 November 2018