Hook v Hook
[2002] VSC 584
•20 December 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 6071 of 2001
| CARLY HOOK | Plaintiff |
| v | |
| ERIC RUSSELL HOOK | Defendant |
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JUDGE: | Smith J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 September and 16 December 2002 | |
DATE OF JUDGMENT: | 20 December 2002 | |
CASE MAY BE CITED AS: | Hook v Hook | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 584 | |
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Tort – Sexual assault – Damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B. McCullagh | Macpherson & Kelley |
| Defendant unrepresented |
HIS HONOUR:
The plaintiff, Carly Hook, is the daughter of the defendant, Eric Russell Hook. She was born on 4 March 1974. She has brought these proceedings to recover damages from the defendant for the injuries, loss and damage she alleges that she has suffered as a result of repeated sexual assaults in and between 1976 and 1989. Damages and compensation are sought for assault and negligence. The negligence complained of includes, in addition to the matters forming the basis of the claims in assault, the exposing of the plaintiff to explicit sexual acts either with another or on video tape.
The defendant has not appeared to defend the matter. The evidence is that he is living in America and has notice of the trial. He did have solicitors acting for him but they have ceased to act for him and leave was given to them to file the requisite notice. The matter has proceeded as an undefended claim. I am satisfied as to due service of all relevant materials.
Evidence has been given by the plaintiff and her mother. In addition, evidence has been given by Dr Epstein, a psychiatrist, and Ms Dianne Hoey, a sexual assault counsellor at the South Eastern Centre Against Sexual Assault.
On the evidence before me, I am satisfied that the defendant engaged in repeated sexual acts with the plaintiff when she was aged between approximately 2 or 3 years of age and 13 years of age. They occurred on average once a week and sometimes more often. The sexual acts included the fondling of, and being fondled by, the plaintiff, masturbation of the defendant, oral sex, the defendant ejaculating upon the plaintiff and the defendant attempting to digitally penetrate the plaintiff's vagina. I accept the detailed evidence of the plaintiff as to the events which she has been able to pinpoint in time. I also accept that throughout this period he manipulated her into being silent about what was occurring by telling her that what they were doing was wrong and that he would go to gaol if she told anyone and that, if that happened, her mother would not want her and she would have to live in a home.
When she was 13 years old, her father left the family home. He was at the time involved with another woman with whom he had a child. Between the ages of 13 and 15 she was sexually promiscuous. At the age of 14 or 15, she ran away from home for some 4 months. She was extremely confused. She thought that it was her fault that her father had left and she could not cope with the divorce of her parents. At that time her father, who was employed in the Transit Police, visited her in the unit where she was staying with two ladies in the neighbourhood. He said he had come to take her to visit her grandparents. They went to the grandparents' home but they were not there, having gone overseas. He attempted to use that opportunity to sexually abuse her again and succeeded to some extent.
Between the ages of about 5 and 13, he regularly had her watch pornographic videos and would try to get her to do what was being done on the videos.
The impact of this conduct upon the plaintiff has been extremely damaging.
To her great credit she attempted to gain employment in her later teen years and to gain qualifications. Initially, she worked part-time at a Childcare Centre when aged 15. While there she studied for an Assistant's Certificate at Frankston, studying one night a week for 12 months. She left the Childcare Centre to obtain a Mothercraft Certificate. This was a 3-year full time course. She participated full time for 2 years but because she was not coping and believed she was failing everything, she decided in the last year to do the course part-time. In the end she pulled out with 6 months to go because she did not think she could pass the course and felt she had no capacity to be anything or anyone. She has had two part-time jobs since. In early 1997 she worked for 2 weeks as a courier at $5 per hour. In May 2000 she worked as a casual cosmetics demonstrator at Myer in Dandenong, 4 days per week at $15 per hour.
In 1990, at about the time that she was working as a childcare worker at the Childcare Centre, she met a young man whom she described as her boyfriend and began a relationship with him. They both used marijuana and amphetamines at the time. The relationship has continued but they do not live together presently and do not have a sexual relationship. By the age of 18 or 19 she was using heroin occasionally and her boyfriend began using heroin. It was at that time that she began her full time Mothercraft course.
In 1997 she became pregnant and went cold turkey for more than 12 months. She gave birth to a baby daughter in March of 1998. The daughter was and is healthy. In September 1998 she commenced a methadone program while continuing to use heroin. She ceased to use heroin in early 2000 and has gradually tapered off the use of methadone since then.
The birth of her daughter appears to have been a particularly significant event in that it, amongst other things, caused her to relive and address her past. It brought back many thoughts to do with the way she had been treated as a child. She began having nightmares and flashbacks to the sexual abuse which had occurred. This was extremely distressing. In about May 2000 she told her boyfriend and decided to tell her mother. She began attending the Cranbourne Centre Against Sexual Assault at about that time, weekly at first and then subsequently monthly. She experienced increased levels of distress with panic attacks, nightmares and flashbacks. The panic attacks typically involved hyperventilation, sweating and light-headedness. She became less sociable and felt uneasy away from home unless with a companion. She also found she was unable to tolerate sexual activity and was experiencing great difficulty showing any affection to her boyfriend. Her appetite diminished significantly and she lost 40 kg in weight. She has since only partially recovered that weight. She continued to feel significantly depressed and miserable. She was prescribed an antidepressant medication in November 2000 but stopped because she felt uneasy about using any medication. She was also very apprehensive about taking any risks which might affect her own health or that of her daughter.
The nightmares and flashbacks have continued and as at February 2002 she was suffering them at least weekly. She becomes very upset with any reminders of what occurred including talking about the sexual abuse or hearing about other victims of sexual abuse. She is fearful of sexual activity and sexual activity has triggered off reminders of what occurred.
She appears to have been depressed ever since the abuse started. She now feels hopeless, helpless, worthless and her self-esteem and self-confidence are low. She is tearful much of the time. She feels bored and restless and frustrated. She is lonely and irritable and remains agitated. She lacks energy and is easily exhausted. She has difficulty motivating herself. She is still enduring panic attacks approximately weekly. She has difficulty sleeping. She has not had any sexual activity for some time. For her, life seems bleak.
She has experienced two very severe panic attacks in recent times. The first occurred in June of last year when she was told that her father who had been visiting Australia had returned to the United States of America without being interviewed by the police. She fell to the floor into a foetal position, shaking. Her mother took her to a doctor on that occasion. The other occasion, more recently, was when she heard that her brother had gone to visit her father. She could not cope and had a very similar attack.
At the moment she is living with her mother and receiving considerable emotional and financial support from her. I accept her mother's evidence that she is a good mother but that she would have difficulty coping on her own in dealing with minor daily matters and finances and life generally. Her mother's view, which I accept, is that she appeared to be coping better prior to the birth of her child but that since then the tears flow all the time.
To my observation, the plaintiff appeared to be an intelligent and courageous young person who, but for the serious psychological impact of the defendant's conduct, would have had the capacity to complete her education and be gainfully employed.
I accept Dr Epstein's analysis. He describes the abuse as being at the more severe end of the spectrum. He bases that conclusion on the fact that it occurred frequently, the offender was her father, and it took place over an extended period of time. Fortunately the response of care-givers was supportive when the abuse was disclosed and there was no additional violence involved. He has found that she suffers from typical features to be found in an adult victim of childhood sex abuse. This includes chronic depression since her early years, great difficulty with self-esteem, self-confidence and coping socially. Her school record was very patchy. She became involved in substance abuse and has been using illicit drugs since she was 11 years old and continues to do so. The impression he gained was that she had been self-medicating with a variety of drugs to help her cope more effectively.
His view is that she had been able to put the sexual abuse at the back of her mind and get on with her life, however limited that was, and she did not make a clear connection between the drug-taking and her distress with the sexual abuse until later. It appears, however, that at the age of 21 she had made some connection because she telephoned her father and abused him for ruining her life. At about the time of the birth of her daughter, however, Dr Epstein is of the view that she developed a moderate post-traumatic stress disorder of the delayed type. This occurred after she spoke to her mother at that time. As a result she has had to cope with recurrent intrusive thoughts about what occurred, distress with those reminders and increased concern and anxiety about her own safety and security and that of her daughter, resulting in hypervigilance, emotional withdrawal and a sense of bleakness. She has difficulty with trust. Her self-esteem and self-confidence remain very low. She has significant sexual difficulties. Dr Epstein's view is that she has been significantly damaged by this experience and that this is likely to have prolonged effects on her quality of life affecting her relationships, her recreational enjoyment and her capacity to work.
His view is that she would benefit from psychiatric or psychological treatment. He suggests that it should be weekly for at least a 6-month period and then every 2 weeks for a further 12 months and then monthly for a further 12 months. His view is that she may also require medication. Sadly, his view is that her prognosis is poor and he remains concerned about her future. Dr Epstein's views are confirmed and supported by the views of Ms Dianne Hoey, the sexual assault counsellor at SECASA. She believes in particular that the plaintiff will require ongoing support and therapy to enable her to resolve the complex feelings and consequences of the assaults and abuse, but she does believe that she will recover further and re-establish control over her life. SECASA has been providing her with counselling support for some time and will continue to be able to do so at least in crises by telephone if they are too busy to provide a face-to-face counselling session – as is likely.
The plaintiff in giving her evidence, while tearful much of the time and obviously stressed, showed considerable determination and courage. She says that she wants to get back to school and she would like to become qualified to do something like nursing. Her mother gave evidence that she felt her daughter was starting to think optimistically. Sadly, however, she has significant psychological damage to overcome and that is likely to affect her capacities in the future. On the most optimistic view of the evidence before me, her future is likely to be clouded with the continuation of her present symptoms, although hopefully substantially reduced and accompanied by an increased ability to cope with the damage, if suitable assistance can be provided as suggested by Dr Epstein.
The plaintiff seeks general damages, commonly referred to as past and future pain and suffering and loss of enjoyment of life. Her past life since 1976 up until now has been marred by considerable emotional and psychological pain and suffering, particularly since the birth of her child. She spends much of her time in a tearful condition. Prior to that and since there would appear to have been little in life for her to enjoy. Looking to the future it is to be hoped that she can find more pleasure in life but if she does it is likely to be significantly less than that which she could have enjoyed but for the defendant's conduct. She will continue to experience pain and suffering as a result of his actions.
Counsel for the plaintiff has sought, on instructions, an amount of between $120,000.00 and $150,000.00 to compensate her under this head of damage. This seems to me to be a conservative range of figures. Accordingly, I will proceed on the basis that $150,000.00 would be fair and reasonable compensation under this head of damages.
As to the question of the assaults and the claim for aggravated damages in relation to those assaults, there were something in excess of 500 sexual assaults over 13 years. They involved extreme insult and humiliation. The plaintiff seeks $100,000.00 for such assaults including aggravated damages. That claim is also fair and reasonable.
I turn to the issue of economic loss.
The plaintiff's medical and other expenses have been paid in large measure by Medicare or pursuant to a Commonwealth Government Pension Scheme. There is evidence, however, that the plaintiff has incurred pharmaceutical costs and expenses not covered totalling $343.80. That claim should be allowed. As to future economic loss, evidence has been placed before me which I am satisfied demonstrates that it would be fair and reasonable to compensate her for future medication expenses in the sum of $16,000.00. In support of the claim, the plaintiff drew attention to the fact that an amount of $15,990.00 would be sufficient if awarded now to enable the plaintiff to spend $15.00 per week to age 60. While no allowance in that figure was made for the vicissitudes of life, none the less it also does not allow for increases in the cost of medication. On balance I am satisfied that an amount of $16,000.00 would be fair and reasonable compensation for future medical expense.
Turning to loss of earning capacity, I am satisfied that the plaintiff's earning capacity has been significantly damaged. The plaintiff has made a claim for past economic loss of $157,154.00. This has been calculated on the basis of what a child care worker holding the type of diploma which the plaintiff had sought would have earned per annum in and between 1996 and 2002. Bearing in mind that I am satisfied that she had the potential, but for the psychological damage done, to work in employment paying substantially more than the salaries payable for the suggested Level 3 Group C Child Care Worker, and the high probability that she would have been employed over those years, I consider the amount claimed fair and reasonable.
The plaintiff through her counsel has sought an amount of $160,000.00 for future economic loss based on the damage done to her earning capacity. That figure was arrived at in a calculation assuming a weekly loss of $200.00 per week from the present time to age 60 using the appropriate multiplier and deducting 25 per cent for the vicissitudes of life. This produces a figure of $159,000.00. Again in my view this is a conservative estimate. The 25 per cent figure for vicissitudes of life had regard to the ordinary vicissitudes of life and the possibility that, assuming a normal earning capacity, she may well have had another child or more than one and thus would have had periods out of the workforce as well as having regard to the other vicissitudes of life. It was also put on her behalf that in the immediate future while she is attempting to obtain appropriate qualifications and coping with psychiatric treatment, she will not be able to effectively earn the income that would otherwise be payable to a Level 3 Group C Child Care Worker. I referred above to the psychiatric advice that for the first six months she should receive one session per week of counselling and in the next 12 months one session every two weeks and the final 12-month period one sessions each month. This would translate on the evidence before me to a loss of earnings from 2002 to 2004 of over $48,000.00.
In considering compensation for future economic loss there are at least two facets. The first is that having regard to the psychological damage done, the plaintiff is likely to find it difficult to sustain regular employment notwithstanding adequate psychiatric assistance. In addition, there is the reality that the damage done by the defendant has affected her ability to pursue higher-paying work. The assessment in those circumstances is obviously imprecise but I have no doubt that an award of $200,000.00 for future economic loss derived from damage to her earning capacity would be fair and reasonable.
I note that while exemplary damages were pleaded, they are not sought.
Conclusion
Looking at the case as a whole, I am satisfied that an award of damages of $620,000.00 would be fair and reasonable. Judgment should therefore be entered for the plaintiff in that amount.
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