Horne, Cherie Jayne v Wilson, Graeme James Gregory (No 2)

[1998] TASSC 44

44/1998

PARTIES:  HORNE, Cherie Jayne
  v
  WILSON, Graeme James Gregory (No 2)

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  796/1996
DELIVERED:  30 April 1998
HEARING DATE/S:  9, 11, 12 February, 19 March 1998
JUDGMENT OF:  Underwood J

CATCHWORDS:

Limitation of Actions - Contracts, torts and personal actions - When time begins to run - Particular causes of action - Negligence - Cause of action not complete until damage results - Post-traumatic stress disorder of delayed onset.

Limitation Act 1974 (Tas), s5(1).
Jaensch v Coffey (1983 - 1984) 155 CLR 549; Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383, applied.
Swan v Williams (Demolition) Pty Ltd (1987) 9 NSWLR 172, followed.
Aust Dig Limitation of Actions [23]

Damages - Particular awards of general damages - Tasmania - Negligence - Breach of duty of care by sexual abuse of the plaintiff when a child - Onset of injury delayed until adult - Post-traumatic stress disorder of delayed onset - General damages $15,000.

Aust Dig Damages [61]

Damages - Exemplary, punitive and aggravated damages - Exemplary damages - Circumstances in which award may be made - Sexual abuse of plaintiff when a child - Onset of psychiatric injury delayed until adult - Post-traumatic stress disorder of delayed onset - Exemplary damages $40,000.

Whitfeld v De Lauret and Company Limited (1920) 29 CLR 71, applied.
Aust Dig Damages [3]

REPRESENTATION:

Counsel:
             Plaintiff:  C K Brown and R A Browne
             Defendant:  S P Estcourt and J P E Walker
Solicitors:
             Plaintiff:  Legal Aid Commission
             Defendant:  Harry Serpanos & Co

Court Computer Code:  
Judgment ID Number:  44/1998
Number of pages:  9

Serial No 44/1998
File No 796/1996

CHERIE JAYNE HORNE v
GRAEME JAMES GREGORY WILSON (No 2)

REASONS FOR JUDGMENT  UNDERWOOD J

30 April 1998

Introduction

This is an unusual case.  By a writ filed on 23 May 1996, the plaintiff claims damages against the defendant for negligence, assault, battery and breach of fiduciary duty.  However, the statement of claim confines the case to one for damages for negligence.  The plaintiff, who was born on 12 April 1968, claims that from the age of 5 until the age of 12 (1973 - 1980), the defendant systematically and regularly subjected her to sexual abuse and she thereby suffered loss, psychological injury and damage.  Her case is, by this conduct, the defendant, who is her uncle, breached the duty of care he owed her by virtue of their relationship and proximity.

In addition to putting the principal allegation in issue, the defendant relies, in the alternative, upon the provisions of the Limitation Act 1974, s5(1), claiming that if there was a breach of the duty as alleged, it caused damage more than three years before the writ was issued and, consequently, this action is statute barred. In response to this defence, the plaintiff asserts that she suffered no injury as a result of the breach of duty until, at the earliest, 1995.

Only four witnesses gave evidence at the trial.  They were the plaintiff, two cousins, Leanne Lincoln and Shauneagh Jacobs and the psychiatrist, Dr Sale.  At the end of the plaintiff's case, the defendant elected to call no evidence and his senior counsel submitted that there was no case to answer.  This submission was overruled, see Horne v Wilson 17/1998.  I accept the substance of the evidence of the plaintiff and her cousin, Mrs Jacobs.  The evidence of the latter was adduced over objection as similar fact evidence.  Had Mrs Jacobs' evidence been rejected as inadmissible, I would nonetheless have accepted the substance of the evidence of the plaintiff.  It was not contradicted by any evidence from the defendant and there was nothing about her evidence or her demeanour to raise doubt about the general veracity of her account.  What follows constitutes my findings of fact.

The Duty of Care and its Breach

As a child, the plaintiff lived at Mt Seymour near Oatlands.  She lived there with her parents, her two brothers (one of whom is now deceased) and her sister.  The plaintiff is the youngest of her family, there being six years between her and her sister Leanne, and thirteen years between her and her surviving brother.  Not far from the plaintiff's house lived her paternal grandparents.  During her childhood the plaintiff was a frequent visitor to her grandparents' home.  At that time, the defendant, a paternal uncle, lived with his parents.  The plaintiff regularly went to her grandparents for cocoa and biscuits after school.  She also spent most of her weekends there. 

One day when the plaintiff was 5 years old, she was at her grandmother's house and the defendant asked her if she would like to go for a drive into Oatlands with him.  The plaintiff agreed and the two of them set off.  The defendant told the plaintiff that they were going to play a game on the way and that she had to bob down out of sight each time a car approached.  The plaintiff played this game as directed.  As they were going along the road, the defendant pulled out from under the seat, some pornographic magazines depicting heterosexual intercourse and gave them to the plaintiff to look at.  When the plaintiff and the defendant arrived at Oatlands, the defendant told the plaintiff to remember their little game and keep out of sight.  This she agreed to do.  The defendant parked his utility and went to a shop.  On his return, the defendant started up the car and drove it to the old Oatlands racecourse.  There, the defendant parked the car and put the passenger seat into the reclined position.  He explained to the plaintiff that the people in the magazines did the things depicted because it made them feel good.  He took the plaintiff's pants off.  He masturbated himself to erection, wet the plaintiff's vagina with his saliva and rubbed his penis against it.  He said that he loved her and she said that she loved him too.  The plaintiff said that she can remember that while the defendant was sexually assaulting her, she was looking out of the window at the trees.  After the defendant had ejaculated onto the plaintiff's stomach, he wiped her clean with some tissues.  The defendant then told the plaintiff he had a whole box of Crunchie bars in the boot of his car.  He got out and brought one back to her.  He said that they were for her if she kept their special secret.  The plaintiff experienced no emotional misgivings about this conduct. 

The conduct just described was repeated several times a week over seven years until the plaintiff began to menstruate at the age of 12.  Sexual abuse of the same or similar nature occurred on many occasions and was always followed by the gift of a Crunchie bar.  Sexual abuse of the plaintiff at the hands of the defendant occurred:

• frequently in the defendant's utility;

• in the plaintiff's grandmother's lounge room;

• in a room in the plaintiff's grandmother's house in which the defendant kept his CB radio;

• in a fowl house near the grandmothers' house;

• in the bath in the plaintiff's grandmother's home;

• on one occasion, not long before the abuse ceased, in the presence of the defendant's then de facto wife and whilst he was having intercourse with that woman.

  The plaintiff said that this sexual activity occurred, on average, about three times during the week and also at the weekends.  The defendant never physically hurt the plaintiff. 

  When the plaintiff was 11 years old, she told a school friend that her uncle was being "rude" to her but other than that she kept her counsel.  By the time the plaintiff reached the age of 12 and the abuse had stopped, she began to think that what had occurred was not right, but it was not something she dwelt on, nor worried about.  The plaintiff started to repress her memory of the defendant's sexual predatory behaviour towards her.  At about the same time, there was a family dispute between the plaintiff's father and the defendant, as a result of which the plaintiff was not allowed to visit her grandmother if the defendant was present.  There is no doubt that the defendant owed the plaintiff a duty of care to take reasonable steps not to expose her to the risk of reasonably foreseeable injury and there is equally no doubt that by treating her as he did the defendant was in breach of that duty.  Senior counsel for the defendant did not submit to the contrary.

When was Loss, Injury or Damage First Suffered?

During her development through to maturity, the plaintiff felt neither anxiety nor guilt about the defendant's sexual behaviour with her.  However, she described herself as a promiscuous girl.  She gave evidence of the following events in her life which were relied upon by the plaintiff as constituting injury sustained as a result of the defendant's tortious conduct. 

• At age 6, she was the leader in sexual play with a younger boy.

• She allowed boys at school to fondle her sexually.

• When aged 12, she engaged in sexual play with a girl friend about the same age as the plaintiff, but described by the latter as immature.  In this play the plaintiff pretended she was a boy whom this girl liked and the plaintiff fondled the girl sexually, much as the defendant had fondled her.  This activity stopped when the plaintiff attempted to penetrate the girl's vagina with a carrot used as a pretend penis.  This hurt the girl and she cried.  The plaintiff said she "just felt so ashamed and so sorry for what [she] had been doing to her."

• Also when aged 12, a young man who subsequently became her brother-in-law, then aged 22 years, seized her on two separate occasions during the course of one day and rubbed his penis against her vagina.  In doing so, this man told the plaintiff that he knew she let the defendant do the same to her.

• When aged 15, she undressed a female baby she was looking after and rubbed the child's clitoris in much the same manner as the defendant had rubbed hers.  She said the child just smiled at her and she immediately felt great shame, wrapped the child up again, cuddled her, and told her she was sorry.

• Aged about 15, she applied for and obtained a job in a piggery at Molesworth.  On her first evening there, the plaintiff was raped by the husband of the woman who had engaged her, apparently in the presence of, and with the consent of this woman.  The plaintiff was shocked by this conduct and locked herself in the bathroom afterwards.  However, the plaintiff remained in this house for another six weeks and had consensual sexual intercourse with this man on several occasions during this time.  (I must say that I have some reservations about the plaintiff's account of the circumstances surrounding the first act of intercourse at Molesworth, but such reservations are immaterial to the issues in this case and do not affect the general view I have formed that the plaintiff is a creditworthy witness.)

  Following the above events, the plaintiff had a number of short term jobs and met her first boyfriend.  She said that she was sexually active with him.  When the plaintiff was about 16 or 17, she met an "old school sweetheart".  This young man had the care and control of his young daughter by another woman.  The plaintiff embraced and looked after both of them.  This relationship lasted for about two years.  The child called the plaintiff "mummy".  One day the plaintiff, this boyfriend and the child, were travelling up the east coast of Tasmania.  The plaintiff asked where they were going to stay that night and the boyfriend said at the defendant's house, as he was apparently living there at the time.  The plaintiff then told her boyfriend that she did not want to go there because her uncle had molested her when she was a child.  This was the first time she had disclosed this information to anyone since she was aged about 12.  The boyfriend neither asked for, nor was given, any further details.  He shrugged it off.  They visited the defendant and stayed one night in a small flat in the defendant's backyard at Swansea.  The next day, the defendant told the plaintiff that her boyfriend was seeing the child's mother again and in result the relationship ended.  The plaintiff thereby lost her boyfriend and the child she loved, and, in her grief, tried unsuccessfully to take her own life with an overdose of tablets.

  Following her recovery, the plaintiff had a number of boyfriends and a number of different jobs until she met her present husband.  She settled into a steady relationship with him.  Both the plaintiff and her husband smoked a considerable quantity of marihuana in their early days together.  Her husband's use of this drug was to become a source of friction between them.  Seven months after the relationship commenced, the plaintiff became pregnant.  She said, "I was really overjoyed to be pregnant".  In April 1990, the plaintiff and her husband married.  They now have five children and the plaintiff was pregnant with her sixth child at the time she gave evidence.  However, the marriage has not been a stable one.  There have been many separations which, according to the plaintiff, were caused in the main, by her husband's excessive use of cannabis.  However, there have also been many reconciliations and the plaintiff said that she loves her husband. 

  The plaintiff said, and I accept, that until she had a conversation with her sister Leanne in about 1994, when her third child was four months old, she gave no thought to the defendant's sexual abuse.  The plaintiff said that she had pushed all the details of the defendant's conduct to the back of her mind.  Until shortly after this conversation with her sister Leanne, the plaintiff enjoyed her sexual life with her husband, cared well for her children and was generally of good spirits. 

The Events after Disclosure to the Plaintiff's Sister

About the end of 1994, the plaintiff's sister was "going through a bad time and no one knew why".  Eventually, the plaintiff's sister told the plaintiff that she had been sexually molested by the defendant.  The plaintiff said that this information "hit her like a ton of bricks".  At first, although the plaintiff found the news upsetting, she did not wish to disclose and discuss the defendant's abuse of her with her sister or anyone else but, eventually, the plaintiff told her sister that she, too, had been abused by the defendant.  Her sister Leanne advised the plaintiff to seek counselling and went with her on the first occasion.  By the time this occurred the plaintiff's next child had been born.  Although the plaintiff tried to repress her memories of the defendant's conduct, she found that she was unable to do so.  She went to the sexual assault support service in 1995 and received counselling.  She and her sister approached the police late in 1995.  As a result of doing all this, the plaintiff started to recall the detail of the sexual abuse perpetrated on her by the defendant.  In consequence, her relationship with her husband deteriorated.  The plaintiff got to the stage where she could no longer stand her husband touching her.  What had been a good sexual relationship became a bad experience for the plaintiff.  After intercourse she found that she had to get out of bed and go to the toilet feeling "dirty and repulsed".  The plaintiff said she would sit there crying until, after a while, she would begin to feel guilty and feel compelled to return to her husband and apologise to him. 

In addition, as the counselling continued and the memories returned, the plaintiff began to suffer from frequent nightmares.  She often dreamt that she was touching her daughter sexually.  This made her feel guilty when she kissed her daughter good night.  She often dreamt that the defendant was having sexual intercourse with her and not her husband.  In consequence of these and other nightmares, the plaintiff slept badly.  The plaintiff became irritable during the day and, contrary to her demeanour prior to counselling in 1995, she became short tempered with her children and sometimes hit them without cause.  In 1996, the plaintiff consulted a general practitioner at Oatlands and was prescribed Zolfot for depression.

The Plaintiff's Present Condition

At the time of trial, the plaintiff was still suffering from sex avoidance, frequent nightmares, tension headaches and general irritability. The plaintiff said that she has an abhorrence of Crunchie bars and, because the defendant always insisted on her wearing a dress when they went out together, of wearing dresses.  She says that now she always wears slacks even though there are occasions when she would like to put on a dress.

The Medical Evidence

The plaintiff first consulted Dr Sale on 8 July 1996.  She saw him again in 1996 and once in 1997.  Dr Sale made a written report on 3 July 1997.  It was tendered in evidence.  In it, Dr Sale wrote, with respect to the plaintiff's teenage years:

"While her behaviour during adolescence in particular was a sign of underlying adjustment problems, she would not have perceived herself to be ill at that time in that she was not experiencing subjective distress.  'Illness' might be considered as the presence of one or more symptoms which cause the individual distress and which prompt them to seek relief of such distress.  Such symptoms became evident after your client and her sister Leanne made disclosures.  Thus, while there had been longstanding and varied signs of adjustment difficulties, illness in this sense had only been apparent since 1995."

Dr Sale expanded on this in his evidence-in-chief when asked to explain the effect of the disclosure by the plaintiff following the discussion with her sister Leanne. 

"Well the disclosure and perhaps the immediate period before disclosure and there would be events and processes which lead to disclosure.  In many cases they seem to be associated with the appearance of actual symptoms in that individual whereas beforehand they may well have been symptom free.

Now in psychiatric theory one would say that that occurs because the previous defence mechanisms they have used to deal with that issue, namely suppression and repression, that is for both consciously and unconsciously avoiding memory or recall of the matter, were effective and allowed the individual to cope without symptoms as once those defence mechanisms are dismantled they start to experience anxiety, often of quite marked degree."

He went on:

"It appeared to me that she first started to experience actual symptoms of anxiety when her sister Leanne had started speaking of prior sexual abuse, and that those symptoms then escalated quite markedly after the two women had decided and subsequently went to the Police."

Dr Sale described the plaintiff's condition as a "Post-Traumatic Stress Disorder of delayed onset" and said that based upon the plaintiff's evidence-in-chief given on the trial, and the history recounted in his report (which is to the same effect as the evidence-in-chief, but in summary form), he did not believe that the plaintiff suffered from a psychiatric illness prior to 1995.  With respect to prognosis, Dr Sale opined:

"The prognosis in cases such as this, especially when they are involved now in litigation, is always very difficult and one has to be cautious.  One would expect her anxiety symptoms to gradually improve with the passage of time.  That is the usual course of events in cases such as this.  For example nightmares while [they] may be fairly prominent at this stage [they] will generally diminish and become sporadic within a few months of probably being out of this arena.  On the other hand sexuality, she has some fairly significant difficulties with sexuality and I expect that her problems in forming a comfortable and satisfying sexual relationship will persist."

That opinion was not challenged in cross-examination.  However, Dr Sale was cross-examined with respect to the onset of loss, injury or damage.  Dr Sale described the plaintiff's adolescent sexual behaviour set out earlier in these reasons for judgment, not as an adjustment difficulty, but as a manifestation of a child who has been subjected to sexual abuse.  He described the plaintiff's adolescent sexual conduct as a behavioural problem.  Dr Sale explained that sexually abused children have a precocious awareness of their own sexuality and often act out with other children behaviour that they have learnt.  In this sense, said Dr Sale, the development of such children has been affected by the sexual abuse [or tortious conduct].  Dr Sale said this is the likely, but not necessarily the only, explanation for what might be described as the plaintiff's early precocious sexual behaviour.

Dr Sale declined to describe the plaintiff's adolescent behaviour as an adjustment disorder.  He said, and I accept, "I would have seen her difficulties as a developmental problem, to do with sexual development.   I’m not sure what exact words I would use but that would certainly be how I would regard them, as a developmental disorder of sexual development specifically."  Dr Sale's evidence was to the effect that the plaintiff's sexual development in adolescence did not conform to the normal sexual development of an adolescent Australian female child of an equivalent age.  He would not categorise this deviation from the norm as a psychiatric illness or disorder.  He said that if he had been aware of this behavioural development at the time it was occurring, he would have advised counselling to try and bring the conduct in line with the norm.  Upon the history (and the evidence) given, Dr Sale said that the plaintiff's sexual development had caused her to suffer from no symptoms other than the occasional transitory ones of shame and guilt.  The question is, when did the plaintiff first suffer loss, injury and damage.  Was it in 1995 after the disclosure to her sister and the subsequent counselling, or was it during her adolescence, as was contended on behalf of the defendant?

The Law

As damage is an element in the cause of action relied upon by the plaintiff, her claim will fail by reason of the provision of the Limitation Act 1974, s5(1), if the defendant's breach of the duty of care he owed the plaintiff caused her to suffer loss, injury or damage prior to 23 May 1993. See Cartledge v E Jopling & Sons [1963] AC 758; Pirrelli General Cable Works v Oscar Faber & Partners Ltd [1983] 2 AC 1.

The common law of Australia does not recognise as compensable, transitory emotional upset.  Stress and anxiety do not sound in damages unless they reach the stage of an illness.  The issue in Jaensch v Coffey (1983 - 1984) 155 CLR 549, was whether foreseeability of (psychiatric) injury to a class of persons of which the plaintiff was a member, was the only determinant of the existence of a duty of care. In the course of his judgment Brennan J (as he then was) spoke of "psychiatric illness" resulting from sudden emotional shock. He said this at 559 - 560 with respect to mental disturbance giving rise to a claim for damages:

"A century ago psychiatric illness, without more, was not a form of harm or damage for which damages for negligence could be recovered: Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222. But at least for the last half-century 'neurasthenic breakdown amounting to psychiatric illness' has been held to be 'without more ... a form of harm or damage sufficient for the purpose of any action on the case in which damage is the gist of the action, ... supposing that the other ingredients of the cause of action are present': per Dixon J in Bunyan v Jordan (1937) 57 CLR 1, at p 16. The term 'nervous shock' has been used to describe that form of damage, although the term may not be an accurate medical description of the range of psychiatric illnesses which it is intended to cover — 'any recognizable psychiatric illness' was the description used by Lord Denning MR in Hinz v Berry (1970) 2 QB 40, at p 42, and cited by Windeyer J in Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383, at p 394, and that description must be right. Compensation is awarded for the disability from which the plaintiff suffers, not for its conformity with a label of dubious medical acceptability. The term 'nervous shock' is useful nevertheless as a term of art to indicate the aetiology of a psychiatric illness for which damages are recoverable in an action on the case when the other elements of the cause of action are present."

Deane J (with whose reasons Gibbs CJ agreed) said at 587, with respect to what he described at 586, as "injury" (of a kind which the law recognises as sounding in damages):

"It is now the settled law in this country that there is a distinction, for the purposes of the law of negligence, between mere grief or sorrow which does not sound in damages and forms of psychoneurosis and mental illness (which lawyers have imprecisely termed 'nervous shock') which may (see, eg, Bunyan v Jordan (1937) 57 CLR 1, at p 16; Chester v Waverley Corporation (1939) 62 CLR 1, at pp 8-9, 11, 13 and 21 and, generally, Mount Isa Mines Ltd v Pusey)."

In Swan v Williams (Demolition) Pty Ltd (1987) 9 NSWLR 172, Priestley JA (with whose judgment McHugh JA agreed) at 191 - 195, surveyed a number of cases in which consideration had been given to what constituted compensable nervous shock or psychiatric injury. His Honour correctly noted that in neither Jaensch v Coffey (supra), nor Mount Isa Mines Ltd v Pusey (supra) was it disputed that the plaintiff had suffered nervous shock in the compensable sense.  His Honour then referred to MacPherson v Commission for Government Transport (1959) 76 WN (NSW) 352, a case in which the issue was whether the trial judge's direction to the jury with respect to what constituted compensable nervous shock, was correct. In that case, at 352, the Court of Appeal approved of a direction that excluded from the jury's consideration, "ordinary grief, anguish or anything like that which is the ordinary result of sudden death, and of end of life and all those things." The Court of Appeal in Swan decided to follow MacPherson, but I must say that I agree with Priestley JA's observation in the former case at 195, that there is no substantial difference between Jaensch v Coffey, Mount Isa Mines Ltd v Pusey and MacPherson.

The New South Wales Court of Appeal obliquely revisited this question in Coates v Government Insurance Office of New South Wales (1995) 36 NSWLR 1. In that case, the issue was the effect of the Law Reform (Miscellaneous Provisions) Act 1944, s4(1)(b), on claims for damages for nervous shock. Gleeson CJ at 3 expressed the view that only recognisable psychiatric illness or injury sounded in damages and adopted the view of Brennan J (as he then was) in Jaensch, the relevant part of which I have already cited.  Kirby P, at 13, assumed that the law was as stated by Brennan J, and Clarke JA appeared to accept that as correct (19) and discussed the practical difficulties of drawing the line in each case.

As Mullany and Hanford observe in Tort Liability for Psychiatric Damage at 21:

"Demanding that there be damage of a recognisable psychiatric nature is one way in which the law has erected safeguards perceived to be necessary against unauthentic and illegitimate claims."

For the purpose of determining the issues in this case, I direct myself in accordance with the passage from the judgment of Brennan J in Jaensch which I have set out above.

The defendant has pleaded the Limitation Act 1974, s5(1), and, accordingly, the onus falls on him to establish that it is more probable than not that, prior to 23 May 1993, the plaintiff suffered from a recognisable psychiatric illness caused by the defendant's breach of the duty of care he owed her (Sorrenti v Crown Corning Ltdand ACI Operations Pty Ltd (1986) 7 NSWLR 77).

I find that the defendant has not discharged that onus of proof.  The evidence of Dr Sale, which I accept, is that the plaintiff suffered no psychiatric illness until some time after the disclosure by her sister Leanne, viz, some time in 1995.  Although the evidence demonstrated that in some respects the plaintiff's sexual development deviated from that of her peer group, it was Dr Sale's opinion that such deviation was not sufficiently gross to constitute any recognised psychiatric illness.

Not all teenage children develop at the same rate or in the same way.  Some are more sexually precocious than others during the years of sexual development.  Some become sexually mature earlier than others.  It is general knowledge that sexual curiosity and experimentation are quite frequently part of the maturing process.  Sometimes there occurs, for one reason or another, sexual behaviour that mainstream societal thinking considers inappropriate when measured against the prevailing norms.  In most cases, absent psychiatric illness, counselling, either by way of parental guidance or from a professional, will check the inappropriate behaviour and bring the perceived errant conduct back within the spectrum of conduct deemed to be the norm.  As I understand Dr Sale's evidence, the plaintiff, probably, but not necessarily, by reason of the defendant's sexual abuse of her, engaged in such perceived inappropriate sexual behaviour on several occasions during her sexual development.  It is more probable than not that by reason of the defendant's breach of his duty of care, the plaintiff's adolescent sexual development deviated from the norm because she had early become aware of sexual matters and acted out that which the defendant had showed her.  However, I accept Dr Sale's opinion that this behaviour did not constitute a recognisable psychiatric illness. 

The plaintiff said that until 1995 she enjoyed a happy life without symptoms of stress or anxiety.  She said that until 1995 her sexual relationship with her husband was good and her feelings towards her children were that of a contented and caring mother.  It is true that on one or more occasions of perceived sexual misbehaviour during her teenage years, the plaintiff experienced feelings of shame or guilt, but these were but fleeting reactions to her activity and resulted in no lasting anxiety or stress.  Accordingly, these feelings could not be described as symptoms of a psychiatric illness.  I find that the defendant has not discharged the onus he carries of establishing that the plaintiff suffered from a recognised psychiatric illness prior to 23 May 1993.  The plaintiff is entitled to recover damages against the defendant.

The plaintiff only seeks to recover compensatory general damages and exemplary damages. 

Compensatory General Damages

The plaintiff is entitled to compensatory damages for the injury she has suffered and the consequential loss of amenities of life, both in the past and in the future.  The injury is substantial and the loss has been grave.  However, it does appear that the prognosis is reasonably good, although the likelihood is that the plaintiff will have long-term problems in establishing a comfortable and satisfactory sexual relationship. 

Monetary compensation for injury is an artificial concept for it is based on the false assumption that money can compensate for injury suffered.  In the case of personal injury following trauma, the difficulty of assessment is alleviated somewhat as earlier decisions gradually establish bench marks of conventional sums for like cases.  The only case similar to this that my researches have unearthed is Bird v Bool & Anor, Queensland Supreme Court, unreported 16 October 1997, where an award of $40,000 for general damages was made in a case of prolonged sexual abuse by a stepfather.  In my judgment, the loss suffered in that case was much greater than the loss suffered in this case.  Compensatory damages for tortious conduct must be moderate, fair and just between the parties.  Taking into account the extent of the plaintiff's injury, the fact that she has only suffered injury since about 1995 and the fact that the prognosis is, in the main, hopeful, I assess her general damages in the sum of $15,000.

Exemplary Damages

The plaintiff also seeks exemplary damages.  This is a clear case for an award of exemplary damages to punish the defendant for his wrongful conduct and to visit him with retribution for his "conscious wrongdoing in contumelious disregard of [the plaintiff's] rights", per Knox CJ in Whitfeld v De Lauret and Company Limited (1920) 29 CLR 71 at 77. There was no direct evidence that there had been no criminal proceedings instituted against the defendant. However, I am prepared to assess exemplary damages on the basis that the defendant carries the onus of establishing matters that go to mitigate an award of exemplary damages, and there is no evidence that he was ever charged with or convicted of any offence arising out of his wrongful conduct. There is evidence that the plaintiff made a report to the police, but no evidence that any prosecution occurred as a result of that report. See Watts v Leitch [1973] Tas SR 16 at 20.

Documentary evidence establishes that by registration of a transfer, the defendant transferred his interest as a joint tenant in a property at Mt Seymour to his joint tenant, Eyvonne Wilson, on 10 January 1997, a month after the delivery of the statement of claim in this action.  The consideration in the transfer was expressed to be $40,000.  The transfer was subject to a mortgage to the Savings and Loans Credit Unit Co-Operative Society Ltd.  Certification for assessment of stamp duty, shows that the amount intended to be secured by the mortgage was not to exceed $19,000.  There was no evidence of the amount due under mortgage at the date of transfer.  It was taken out in 1994 and provides for fortnightly payments of at least $100.  Presumably, the defendant remains personally liable on the mortgage.  I accept the submissions made by junior counsel for the plaintiff that, absent any evidence from the defendant, the foregoing facts lead to the inference that either the transaction was a sham to defeat any judgment and the defendant retains an equitable interest in the property, or he received $40,000 from the purchaser.

Bearing in mind that I have already allowed $15,000 for general damages (Backwell v AAA [1997] 1 VR 182), an appropriate award for exemplary damages is $40,000.

There will be judgment for the plaintiff against the defendant for $55,000.