JMD v GJH
[2012] WADC 124
•10 AUGUST 2012
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: JMD -v- GJH [2012] WADC 124
CORAM: DAVIS DCJ
HEARD: 26-29 MARCH 2012
DELIVERED : 10 AUGUST 2012
FILE NO/S: CIV 1189 of 2009
BETWEEN: JMD
Plaintiff
AND
GJH
Defendant
Catchwords:
Personal injury - Sexual assaults for which defendant was convicted - Summary judgment for tort of assault and battery - Conviction for offence of pursuing another to intimidate - Whether defendant also liable for tort of intentional infliction of harm - Assessment of damages - Whether aggravated damages ought to be awarded
Legislation:
Civil Liability Act 2002
Result:
Defendant liable for tort of intentional infliction of harm
Damages assessed at $342,662
Representation:
Counsel:
Plaintiff: Mr I Morrison
Defendant: Mr T Offer
Solicitors:
Plaintiff: Michael Rogers & Associates
Defendant: Curwood & Co
Case(s) referred to in judgment(s):
AM v KW [2005] NSWSC 876
Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82
Bennett v The State of Western Australia [2012] WASCA 70
Brown v Dato Pty Ltd [2006] WASCA 170
Bunyan v Jordan (1937) 57 CLR 1
Carrier v Bonham [2001] QCA 234; [2002] 1 Qd R 474
Carter v Walker [2010] VSCA 340
Ciavarella v Balmer (1983) 153 CLR 438
Giller v Procopets (2008) 24 VR 1; [2008] VSCA 236
GJT v State of Western Australia [2011] WASCA 263
Heenan v Di Sisto [2008] NSWCA 25; (2008) A Torts Rep 81-941
Insurance Commission of Western Australia v Weatherall [2007] WASCA 264
Janvier v Sweeney [1919] 2 KB 316
Jongen v CSR (1992) A Torts Rep 81-192
K v G [2010] QSC 13
Kenny v Sholl (1905) 7 WALR 197
Khorasandjian v Bush [1993] QB 727
Lamb v Cotogno (1987) 164 CLR 2
Luxton v Vines (1952) 85 CLR 352
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Medlin v State Government Insurance Commission (1995) 182 CLR 116
Mickelberg v The Director of the Perth Mint [1986] WAR 365
Nationwide News Pty Ltd v Naidu [2007] NSWCA 377; (2007) 71 NSWLR 471
New South Wales v Lepore (2003) 212 CLR 511
Northern Territory v Mengel (1995) 185 CLR 307
P v R [2010] QSC 139
P v State of Western Australia [2007] WASCA 220; (2007) 177 A Crim R 69
Purkess v Crittenden (1965) 114 CLR 164
Roberts v The State of Western Australia [2005] WASCA 37
Rosniak v Government Insurance Office (1997) 41 NSWLR 608
Shorey v PT Ltd (2003) 77 ALJR 1104; (2003) 197 ALR 410
Spautz v Butterworth (1996) 41 NSWLR 1
Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15
Van der Velde v Halloran [2011] WASCA 252
Vim v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 147
Water Board v Moustakas (1988) 180 CLR 491
Watts v Rake (1960) 108 CLR 158
Wilkinson v Downton [1897] 2 QB 57
DAVIS DCJ: The plaintiff's claim is for damages suffered as a result of a number of offences committed by the defendant against her in late 2003 and early 2004 when she was only 14 years old.
In 2007 the defendant was convicted following his plea of guilty to eight counts of indecent dealing and one count of sexual penetration (which I shall refer to as the 'sexual offending'). The plaintiff was the victim in each of these offences. The defendant was then married and a family friend and neighbour of the plaintiff and her family.
In addition to the sexual offending, the defendant pleaded guilty to and was convicted on a further charge of pursuing another to intimidate, an offence under s 338E of the Criminal Code (which I shall refer to as 'the intimidation'). The intimidation occurred during and after the sexual offending when the defendant wrote letters, emails and sent text messages, flowers and gifts to the plaintiff at her home and then at her boarding school. It was because of the escalation of this conduct by the defendant that the plaintiff went to the police and criminal charges were laid against him.
For all of these offences the defendant was sentenced to a term of immediate imprisonment. There is no dispute that as a result of the defendant's offending against her, the plaintiff suffered a psychiatric injury, namely post traumatic stress disorder (PTSD).
In 2009 the plaintiff commenced this action. In relation to the sexual offending, the plaintiff pleaded that the defendant had thereby committed an assault and battery upon her. In relation to the conviction for the intimidation, the plaintiff pleaded that this amounted to an intentional infliction of harm. In the alternative to the intentional torts, it was pleaded that the defendant ought to have reasonably foreseen that his conduct was likely to cause loss or damage to the plaintiff, because he was in a proximate relationship to her. Accordingly, it was pleaded that the defendant owed a duty to take reasonable care not to cause physical, psychological or psychiatric harm to the plaintiff and breached that duty of care by committing the offences.
Summary judgment was obtained by the plaintiff against the defendant in relation to the claims for damages for assault and battery arising from the sexual offending, with orders made for the assessment of the plaintiff's loss and damage. It was ordered that the balance of the plaintiff's claims proceed to trial, together with the assessment of damages.
I must determine whether the defendant is liable to the plaintiff in tort as claimed in respect of the intimidation and, in any event, assess the plaintiff's damages.
Liability for the claim for damages for the intimidation
The statement of claim pleaded as follows:
5.The defendant pursued the plaintiff to intimidate her and emotionally abused the plaintiff:
1.Between December 2003 and February 2004 by writing letters to the plaintiff at her home.
2.From February 2004 until September 2006 by sending letters, emails, text messages, flowers and gifts to the plaintiff at her home and at [boarding school], by attending the plaintiff's home to see the plaintiff and by telephoning [the boarding school] to speak to the plaintiff.
Particulars
Full particulars are contained in the transcript of the sentencing of the defendant by Honourable Chief Judge Kennedy on [date of sentencing] on eight counts of indecent dealing with a child aged 14 one count of sexual penetration and one count of pursuing another to intimidate …
…
7.By each of the acts pleaded in paragraph 5 the defendant harassed the plaintiff and further and in the alternative committed the tort of intentional infliction of harm (and further and in the alternative intentional infliction of psychiatric injury) on the plaintiff.
8.Further and in the alternative in the premises set out in paragraphs 1 to 5 inclusive:
1.the defendant ought reasonably to have foreseen that his conduct described in paragraphs 3, 4 and 5 was likely to cause loss or damage to the plaintiff;
2.at all material times there was a proximate relationship between the plaintiff and the defendant in that the plaintiff lived across the road from the defendant ..., the plaintiff's father and the defendant were friends and during a period from about December 2003 to February 2004 the plaintiff attended the defendant's house to clean it;
3.the defendant owed the plaintiff a duty to take reasonable care not to cause physical or psychological or psychiatric harm to the plaintiff;
4.the defendant breached the duty of care by the acts set out in paragraphs 3 , 4 and 5.
The matters pleaded in pars 3 and 4 related to the sexual offending.
The facts pleaded in par 5 are taken from the statement of material facts, as admitted by the defendant, at the time of his conviction for the intimidation.
At trial the plaintiff abandoned the claim for what was termed the 'harassment' and pursued only the claim for the tort of intentional infliction of harm, alternatively negligence.
The Civil Liability Act 2002 applies generally to the plaintiff's claim in negligence but not to the tort of intentional infliction of harm, nor the tort of assault and battery. Section 3A of the Civil Liability Act provides that pt 1A (dealing with the tests for liability for harm caused by the fault of a person), pt 1B (dealing with mental harm) and pt 2 (dealing with constraints on awards for damages) other than s 10A, do not apply to damages relating to personal injury caused by an unlawful intentional act that is done with an intention to cause personal injury to a person.
When considering liability for the claim of intentional infliction of harm I must have regard to common law principles.
The elements of the tort of intentional infliction of harm
This tort has its origins from the principle first stated in Wilkinson v Downton [1897] 2 QB 57, what has come to be known as the tort of intentional infliction of harm. The principle in Wilkinson v Downton is that if a person wilfully does an act calculated to cause another physical harm, and in consequence causes physical harm including mental distress, a cause of action arises in the absence of lawful justification.
This cause of action has been accepted by the High Court in Bunyan v Jordan (1937) 57 CLR 1, 11 and Northern Territory vMengel (1995) 185 CLR 307, 347 and applied in a number of cases since.
As in the case of negligence for mental distress, the tort does not extend to any form of psychological damage, but requires a recognised psychiatric condition: Nationwide News Pty Ltd v Naidu [2007] NSWCA 377; (2007) 71 NSWLR 471 [73]; Giller v Procopets (2008) 24 VR 1; [2008] VSCA 236 [165], [471].
Although in some respects an intentional tort is more difficult to establish than negligence, it is not confined by a test of foreseeability and does not involve an inquiry into reasonableness of response: Nationwide News Pty Ltd v Naidu [74], [82].
The mental element of the tort is established where the defendant's action is calculated to cause harm to the plaintiff.
On the issue of what 'calculated' to cause means, it has been said that the word 'calculated' is notoriously ambiguous: it can either mean a subjective, actual, conscious desire to bring about a specific result or it can mean what is likely to occur considered objectively. 'Calculated' is capable of meaning subjectively contemplated and intended, or objectively likely to happen: Carrier v Bonham [2001] QCA 234; [2002] 1 Qd R 474 [12] (McMurdo P) and [25] (McPherson JA); Nationwide News Pty Ltd v Naidu [77], [78].
In Carrier v Bonham McMurdo P [12] was of the view that where 'calculated' describes a set of words, as in Wilkinson v Downton (where the defendant, as a practical joke, told the plaintiff her husband had been seriously injured in an accident), 'calculated' describes the quality of those words and means 'likely to have the effect', rather than 'intending to have that effect'. McPherson JA [25] was also of the view that the word 'calculated' was used in the sense of objectively likely to happen. He referred to Bunyan v Jordanwhere Latham CJ [11] discussed Wilkinson v Downton and noted that the words in that case 'were of such a character and spoken in such circumstances that it was naturally to be expected that they might cause a very severe nervous shock.'
In Nationwide News Pty Ltd v Naidu [79], [80] Spigelman CJ stated that to prove that the defendant's conduct was calculated to cause physical harm, an actual subjective intention is not required. A test of 'reckless indifference to a result' will satisfy the requirement as Spigelman CJ stated [80]:
It is not necessary, in this case, to decide, as McMurdo P suggests in Carrier v Bonham (at [12]), that 'calculated' means 'likely to have that effect'. It may be that it is sufficient if the result satisfied a test of 'substantial certainty'. However, a test of reckless indifference to a result will, in this context, satisfy the requirement of intention. In the present case, the findings of Adams J establish such reckless indifference and that is sufficient to establish intention, just as it is in the criminal law.
Relevant to this case, is a case of a defendant 'harassing' an ex‑girlfriend, Khorasandjian v Bush [1993] QB 727, which has been referred to in Australian authorities including Carrier v Bonham. Khorasandjian v Bush dealt with the grant of an injunction, which was held by the English Court of Appeal to be justified, among other grounds, on the basis of Janvier v Sweeney [1919] 2 KB 316. The conduct of the defendant included pestering the plaintiff with telephone calls to such an extent that the telephone number had to be changed. He was also convicted and fined for offences under the Telecommunications Act 1984 in respect of his telephone calls to the plaintiff viz making calls for the purpose of causing annoyance, inconvenience or needless anxiety to others. The injunction was granted because of the risk that the harassment of the plaintiff would in future give rise to a physical or psychiatric illness.
The test for recovery of consequential loss in the case of an intentional tort is whether the particular head of damage is a natural and probable result of the conduct: Nationwide News Pty Ltd v Naidu[81]. Thus, even where there is no finding that a defendant did actually intend to inflict psychiatric damage, if the nature and scale of his conduct was such as to constitute a recognised psychiatric injury as a natural and probable consequence of that course of conduct, the test will be satisfied: Nationwide News Pty Ltd v Naidu [82].
Findings of fact relating to the claim of intentional infliction of harm
I do not propose to set out all the material facts of the sexual offending in order to avoid unnecessary distress to the plaintiff, however, it is necessary to set out the material facts and background to the intimidation, which include not only the facts admitted by the defendant upon his conviction, but also facts from the evidence led at trial.
The evidence of the plaintiff was presented in the form of a witness statement, which stood as her evidence‑in‑chief. Thereafter cross‑examination took place in court with some re-examination by the plaintiff's counsel.
The plaintiff presented as a well groomed and pleasant young woman with an underlying cheerfulness and sense of humour. During cross‑examination she answered questions from counsel for the defendant in a forthright and open manner, generally making concessions when necessary. The plaintiff impressed me during her cross-examination as being not only honest, but also reliable in her account of the effect which the defendant's offending had and still has on her. Her evidence was supported by the evidence of Dr Stephen Proud, a psychiatrist who reviewed the plaintiff, provided reports and gave evidence at trial. Her evidence was also supported by two of her sisters, whom I shall refer to as 'NR' and 'PAB' who know her well and think highly of her, and her husband, all of whom impressed me as truthful and reliable witnesses.
The following findings I make from the statement of material facts which were read out at the time of the defendant's conviction and admitted by him, through his counsel, together with the plaintiff's evidence which I accept. I should note that when I set out the plaintiff's evidence, I have not necessarily set it out in the same order as her witness statement. Much of the plaintiff's witness statement was not in chronological order and I have done the best I can to put matters in the correct order and proper context.
The sexual offending took place over a six week period during the school holidays after the plaintiff had completed year 9 at high school (in 2003) and before she commenced year 10 (in 2004). The defendant's wife was unwell and admitted to hospital, so the plaintiff's mother asked her to help the defendant by cleaning his house. After the sexual offending commenced the plaintiff felt she could not get out of the situation. She told her mother she did not want to go and help any more, at which her mother suggested sending the plaintiff's sister, NR. The plaintiff was alarmed at that suggestion – as she said, that was the last thing she wanted to happen – and I understand that to mean she did not want her sister subjected to the same acts committed by the defendant against the plaintiff. So the plaintiff decided to continue to go to the defendant's home.
The plaintiff felt trapped. The defendant would tell the plaintiff's mother he would be working all day and when he returned to his house in the evening he would bring the plaintiff home. However, when the plaintiff went there during the afternoon she would find the defendant already home and he would spend the afternoon and evening with her.
As the plaintiff explained it, after the sexual offending and her return to school she was confused, and did not really know what had happened or what to feel. She knew what happened was wrong but did not know what to do about it and felt there was nothing she could do about it. She put on a brave face and pretended that nothing had happened.
During year 10 she was still living at her parents' home and the defendant was able to manage to approach her alone, tell her he was in love with her and wanted to be with her. He asked for details of what she did on weekends. He said he wanted her to visit him or have lunch with him. She did not know how to respond. She did not want to be rude. She tried every way to avoid seeing him.
One way of doing this was to stay somewhere else over the weekend with her friends from school. She and her friends (including her sister NR) either stayed at their friends' places or with their older sister PAB – a matter which both sisters confirmed in their evidence.
Though the plaintiff was not at home much during year 10 the defendant still found ways to have contact with her. Her evidence was that when she was at her parents' house she had to take steps to make sure she was in a place where everyone in the family could see her and the defendant would not find her alone.
The defendant left flowers and notes for her. Before the sexual offending, the defendant had on occasions, left flowers for both the plaintiff and her sisters. He did this openly and the plaintiff's parents knew about it. After the sexual offending when the defendant left flowers and notes, the way he left them changed. No longer did he leave them in public places where they could be seen by her parents. Instead of sending flowers and notes to her and her sisters, he was sending flowers and notes just for the plaintiff. He left flowers on her bed, which meant that he must have had access to her bedroom. He left messages in the mailbox addressed to her.
The plaintiff's evidence of these matters is supported by evidence from the principal of the school the plaintiff attended in years 8, 9 and 10. The principal gave evidence of an occasion when the plaintiff came to his office and asked to speak to him. She was upset and anxious about a neighbour who had been appearing at her bedroom window and leaving things in her room. The principal assumed, because this was an out of school issue, that her parents would have been informed about this, so he referred her to the school chaplain. The principal described the plaintiff's presentation to him as being upset, anxious and teary. He said that the plaintiff was quite an articulate young lady and on this occasion she seemed 'rattled', nervous, shaking and shaken. The principal thought that this occurred during 2003 when the plaintiff was in year 9, but having regard to the plaintiff's evidence and the confirmed dates of the defendant's offending, I find that this must have occurred when the plaintiff was in year 10.
During year 10 the plaintiff said she was managing to cope. As she explained it in her witness statement (par 33), 'In year 10 I was coping, just, I got through the year probably because there was so much going on'. She went on an overseas trip with her family to attend the wedding of her sister and upon her return she was involved in the school musical. As she explained, 'that helped me a lot because it was a relief to act as a different person'.
Another reason why she believed she managed year 10 was that the following year she would be leaving home to attend boarding school, in year 11. She clung to that thought – in her words, 'I was about to fall apart by the end of year 10 but I was hanging in there because I knew that the harassment was going to stop when I went away'.
Towards the end of the year the letters, notes and flowers tapered off but the defendant was approaching the plaintiff more often. On one occasion at the end of year 10 the defendant found her alone and gave her a gift as a going away present. In the course of giving her the present he gave her a passionate kiss. She told him she did not want any more to do with him. She also said 'We're just friends' and told him nothing would come of it, to which the defendant said 'oh I agree'. The plaintiff explained, however, that she did not want to be the defendant's friend; she just wanted to stop him going any further. Remembering that the plaintiff was at this stage only 15 years old, that is in my view completely understandable. Also, as she would be going away to boarding school she was confident she would not see him again.
Before she and her sister NR went to boarding school the defendant gave them both a box of envelopes and asked them to write to 'us' (the 'us' I find was a reference to himself and his wife). The plaintiff said to the defendant then 'this has to stop, we will write letters as friends, that's it '.
Unfortunately, matters did not stop as the defendant began sending letters, making telephone calls, sending text messages and flowers and gifts to the boarding school.
The plaintiff did write a couple of letters to the defendant but unfortunately that did not help because the defendant wanted more.
The plaintiff started to get letters and phone calls from the defendant nearly every day. She had a mobile phone and usually kept it off, however, when she turned it on there would be up to 10, sometimes more, missed calls on her phone each day. There would be at least one text message every night. The plaintiff had believed the contact from the defendant would stop when she went to boarding school but 'it just got worse and worse. What he did to me was one thing, but his attempts to contact me were constant reminders of it. With the constant harassing, I felt I couldn't escape from it all. It beat me down.'
The plaintiff described what was happening to her as being 'hounded'. The correspondence from the defendant was a constant reminder to the plaintiff of the sexual offending against her.
Letters came from him by post almost every day. These letters were put on a front desk near reception at the boarding school. Initially, the letters were addressed to both the plaintiff and her sister NR. When the defendant wrote to them both, he wrote general things such as 'I hope you girls are doing well at school'. Later he started addressing letters only to the plaintiff. The plaintiff did not want NR to know about this because then 'she would have to find out why it happened.' The plaintiff explained she did not feel she could tell anybody and if she told NR, then she would tell her parents, so the plaintiff kept everything to herself.
The plaintiff sent a number of letters back to the defendant, asking him to stop. In evidence before me was a letter dated 4 April 2005 which the plaintiff had written to the defendant telling him that the letters 'have to stop [name of defendant] sorry but they are becoming too much for me to handle. [NR] is here and we share a phone, it is hard to make up excuses for who is calling. Other people are becoming suspicious as to who and why I am getting these calls and letters. It must stop for the sake of both our families.'
On the copy of that letter of 4 April 2005 the plaintiff wrote the number of letters the defendant had sent to her and her sister NR at that time. The note was that the defendant had written 21 letters to her, nine letters to both her and her sister, seven emails (within two weeks) to her and three to her sister. The defendant had also sent presents including a gold locket, a bottle of perfume and a teddy bear.
The defendant did not stop, however. For more than a year after the letter of 4 April 2005 the defendant continued to send letters, emails, text messages, flowers and gifts to the plaintiff.
In addition the defendant was telephoning the boarding house. The phones were located right next to the headmistress' office and anyone who answered the phone would 'call up' the person for whom the phone call was. The plaintiff asked one of the male supervisors at the boarding house to speak to the defendant on the phone and tell him to stop ringing, which the supervisor did (the plaintiff was present when he made the call). Despite this, however, the telephone calls from the defendant did not stop.
When the defendant continued to make contact or attempt to make contact with the plaintiff during year 11, the full impact of the defendant's offending began to have an effect upon her. The plaintiff gave a full and frank account of her injuries and health problems in year 11.
The plaintiff started to harm herself. She cut herself on her wrists and her arms using scissors or razor blades. She was getting so overwhelmed by everything that was happening she felt like she needed something to come out of her. She had no outlet, no one to talk to and could not say anything to anybody. When she cut herself she felt no pain, only a release of pressure. She admitted she was a bit 'wrong in the head' at the time but this was her way of screaming for help. The plaintiff's evidence of self harm is confirmed by her sister, PAB, who gave evidence of having observed bandages around the plaintiff's wrists and later seeing 'repetitive' marks on the plaintiff's forearms, around the wrist area.
Another incident in year 11 occurred when she broke a hand by punching the door of the girls' bathroom. The plaintiff described how she just sort of 'lost control' punching this door a few times but not feeling any pain. The doctor she saw after this incident was called to give evidence at trial and confirmed that he saw the plaintiff in emergency on 3 April 2005 for a hand injury to her right hand, after hitting her hand on a doorway. After an x-ray was taken a fracture was diagnosed. The date of this injury to her hand coincides with the letter she subsequently wrote to the plaintiff on 4 April 2005.
The plaintiff's sister, NR, gave evidence which confirmed the incident where the plaintiff punched the door. NR also confirmed that the plaintiff was under pressure at that stage from the defendant with his persistent letters and telephone calls.
A further incident of self‑harm which the plaintiff described was when she smashed her face into a wall. She fractured facial bones but this coincided with another sporting accident. One incident caused facial fractures and another caused bruising and she could not remember which incident caused which.
The plaintiff gave evidence that she had trouble sleeping and was put on sleeping pills. She described how she took many sick days off school during year 11, not because she was sick but because she felt 'destroyed' inside. She wanted to curl up into a ball and die. She stayed in her room in her pyjamas and slept most of the day. The school required her to go and see a doctor and get a certificate. She went to the doctor about tiredness. She was exhausted because every time she went to bed she had 101 things going through her head and could not sleep.
There was evidence from the doctor who saw the plaintiff that she presented to him on 16 August 2005 with a history of forgetting things, misplacing things and becoming very tired. After some tests it was found that her iron stores were lower than normal and it was thought at the time that this was the cause of the tiredness and forgetfulness. She was prescribed, among other things, iron replacement medication.
The plaintiff did leave the boarding house at the weekends and spent time with her sister, NR, and her friends. They spent time together in the towns in which each of them lived, which she described as 'town‑hopping'. On one weekend in the early part of year 11 she was at her sister's house when she met a boy, and a couple of months later they started dating. He became her boyfriend and she had a sexual relationship with him. That relationship lasted for about a year. She gave this boyfriend a 'pretty good idea' of what had happened to her but not the specifics. By then, the plaintiff explained, 'I had detached myself into different people, one person on the outside to everybody who's looking in and another person inside.'
When the letters became, in the plaintiff's words, 'too much' she told the headmistress at her boarding school that she was not coping well. The headmistress gave evidence in the trial, which I accept. She confirmed that the plaintiff had asked that she not be called up for phone calls she was receiving from a particular person. The plaintiff was very guarded in what she told the headmistress and according to the headmistress' recollection, the plaintiff said that they were nuisance calls and she did not want the phone calls. An arrangement was made that if the headmistress or another of the boarding house supervisors answered the phone, they would tell the particular person that the plaintiff was unavailable. The headmistress recalled that the particular person was a 'gentleman' who was a friend of the plaintiff's family and a neighbour, but she could not recall his name. After these arrangements were made the plaintiff, in the headmistress' words 'started opening up a little bit' and then brought some letters to the headmistress' attention. The plaintiff told the headmistress that the letters came from the same person and she did not want anything to do with him. The headmistress said she could see that the plaintiff did not want to talk about it too much, and it upset her. The headmistress read one of the letters and the plaintiff asked the headmistress to then hold onto the letters because she did not want anything to do with them. The headmistress could not remember how many of the letters she kept, but it was not many. The headmistress also could not recall exactly when this occurred, indicating that this was during the second year the plaintiff was at the school, which is the year when the plaintiff was in year 12, however the headmistress could not be certain. Having regard to both the plaintiff's evidence and also the other evidence (including the correspondence which the plaintiff kept, and was tendered, exhibit 6, in particular pages 127 ‑ 128) I find that the plaintiff's requests to the headmistress occurred during year 11.
The defendant then returned to writing to both the plaintiff and her sister. In the envelope there would be one letter for the plaintiff's sister and then another envelope with the plaintiff's name on it which contained a separate letter to her.
In year 12 the plaintiff's mental state continued to suffer as the defendant kept writing and attempting to contact her. Letters from the defendant did not stop and sometimes came twice a week. The defendant also started to send emails. The plaintiff explained that the content of the letters began to change. In previous correspondence the defendant had written how much he loved her and wanted to be with her. In later correspondence sent in year 12 he became angry.
The plaintiff's sister NR also confirmed that matters became more 'intense' during year 12, describing the letters which the plaintiff received as 'constant', and sometimes on consecutive days. NR was aware of the correspondence and the fact that it was from the defendant. Although the plaintiff was at that stage trying to hide it from her sister, NR saw the letters come through and later the plaintiff became a little freer with information and allowed NR to read some of them. NR also obtained copies of other letters, without the plaintiff knowing, read these and provided the copies to her elder sister, PAB. PAB also read these, but did not keep them.
The plaintiff actually spoke to the defendant a few times when he telephoned her and also wrote some letters. Her explanation given for this, quite understandable in my view given her age and the other background, was 'I still felt bad because I felt maybe I played into the situation a bit but I just didn't know what else to do.'
The plaintiff destroyed much of the correspondence which the defendant sent to her, but there came a time when she decided it would be a good idea to keep some of it. She also began writing out the text messages she received.
Some of the letters and emails kept by the plaintiff were tendered in evidence (exhibit 6). The text messages she wrote out were given to the police and she does not know what happened to these.
The correspondence was persistent and repetitive, with the defendant continually asking the plaintiff to contact him, to write to him, sometimes asking if he could meet her (including saying he would like to take her out for lunch, and offering to take her for a ride on his motorbike) or asking if she could visit him. The correspondence also reveals that he was sending presents and flowers (sometimes personally delivering these), calling her at school, calling her mobile phone and sending SMS or text messages. I have set out in the attached schedule, in what I consider to be chronological order, a summary of the defendant's letters and cards (exhibit 6), and where mention is made of these matters.
The emails in evidence which the defendant sent commence on 21 July 2006 and end on 6 August 2006. The first email of 21 July was addressed to the plaintiff's sister with a message to 'say hello to [the plaintiff] for me, cause she won't talk to me anymore.' The very next day, however, the defendant wrote a long email directly to the plaintiff. That was followed by an email to the plaintiff two days later on 24 July, two emails on 26 July, another email on 31 July to the plaintiff's sister, then emails to the plaintiff on 2, 4, 5 and 6 August 2006.
The plaintiff's elder sister PAB gave evidence, which I accept, that on one occasion when the plaintiff was with PAB, the plaintiff's mobile phone rang and the plaintiff refused to answer it, telling PAB that it was the defendant. PAB then witnessed the defendant ringing the plaintiff on her mobile phone six times. After a discussion with her sister, PAB resolved that this could not go on and told the plaintiff that she would reply. PAB then sent a text message from her phone to the defendant stating that the plaintiff had already requested that it stop, that the defendant needed to respect her wishes and he needed to stop consuming her life. A short while later, when PAB realised that it was still going on, she sent a second text message to the defendant saying that if it did not stop, the matter would go to the police.
The last email of 6 August 2006 recorded that the defendant had received an SMS from someone asking him not to contact her. The plaintiff's evidence is that this was a text from her sister, PAB. He wrote in this email 'what happened between us 2 years ago was as much your fault as it was mine'.
None of it was the plaintiff's fault.
The email continued with defendant saying that he should have known better, that he had regretted it every day for the last two years and that was why he had tried to contact her all the time. He said he wanted to know that the plaintiff had forgiven him, so that they could just be friends. He said that it probably did not bother her not talking to him but it really hurt him and that was why he kept trying. He said he would do as she asked and then wished her well, ending with an apology if he hurt her.
The plaintiff thought that the defendant would not contact her again, and was relieved. However, he did try and contact her again and she realised it was not going to stop. It was then that she made a disclosure to a girl at school, and then saw a counsellor at the school and the matter was reported to the police.
The defendant's argument on liability for the intentional infliction of harm
On behalf of the defendant two issues were raised in relation to the liability of the defendant for the tort of intentional infliction of harm.
The first was that the allegation is only 'partially pleaded'. The defendant relied on what was pleaded in par 5 of the statement of claim that the 'defendant pursued the plaintiff to intimidate her and emotionally abused the plaintiff.'
The second issue was that an examination of the defendant's conduct did not support any intention to do as was pleaded. It was submitted that the gifts and communications, whilst fundamentally misdirected and ill‑advised, did not spring from any malice or intention to intimidate or harm the plaintiff.
These two arguments, which are linked, were expanded upon in closing submissions. While the defendant did not deny that he did the things alleged and that this conduct, applying the tests from the cases which I have discussed, if done recklessly, would satisfy the elements of the tort of intentional infliction of harm, the argument was that the case had not been pleaded that way by the plaintiff. The plaintiff had pleaded that the defendant had pursued the plaintiff for a specific purpose 'to intimidate her'. This was, it was submitted, a deliberate act, not recklessness. In essence what the defendant put was that to succeed in the claim the plaintiff had to establish an actual subjective intention of the defendant to intimidate the plaintiff. It was submitted that there was no evidence that the defendant acted deliberately to intimidate her and that the cards, letters, texts and phone calls did not have the intention of doing so, and on their face did not do so. It was argued that there were no threats made by the defendant, only pleas by the defendant for the plaintiff to contact him and correspond with him. It was submitted that the defendant was infatuated with the plaintiff.
I have assumed that the submission concerning the defendant's infatuation was made to me on two grounds. First the statement of material facts for the sexual offending recorded that in a record of interview with police, the defendant stated that he was suffering from depression due to the difficult relationship he had with his wife and that he had become infatuated with the complainant (plaintiff) and he had fallen in love with her. Secondly, on the evidence, there were other declarations of love for her.
I am unable to accept the defendant's submissions for the following reasons.
First, as a matter of law, to succeed in the tort of intentional infliction of harm, it is not necessary for the plaintiff to prove any subjective intention on the part of the defendant. That is apparent from all the authorities which I have discussed and this was recognised by counsel for the defendant (ts 342).
Secondly, what is pleaded in the statement of claim par 5 is what the defendant did, which he admitted to when he pleaded guilty to the criminal offence. (I discuss the effect of the plea of guilty in the criminal proceedings in more detail, below). It must have been apparent to the defendant that what was pleaded in par 5 of the statement of claim were the facts which gave rise to the offence of pursuing another to intimidate. That conviction was admitted in par 2 of the defence. What is then pleaded in par 7 is that the acts constituting the offence, set out in subparagraphs 1 and 2 of par 5, constitute the tort of intentional infliction of harm. I do not understand the words used in par 5 to literally mean, what is submitted by the defendant or to limit the case as argued by the defendant.
Thirdly, the main purposes of pleadings are to give notice to the other party of the case it has to meet, to avoid surprise and define the issues at trial. Pleadings are not an end in themselves, but are a means to the ultimate attainment of justice between the parties to the litigation. The court will not take an unduly technical or restrictive approach to pleadings such that, among other things, a party is strictly bound to the literal meaning of the case it has pleaded: Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82 [4] – [8] (Martin CJ); Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15 [13] (Greenwood, Mckerracher and Reeves JJ).
As Martin CJ stated in Barclay Mowlem Construction Ltd v Dampier Port Authority [7]:
[I]t follows that provided a pleading fulfils its basic functions by identifying the issues, disclosing an arguable course of action or defence, as the case may be, and apprising the parties of the case that has to be met, the court ought properly be reluctant to allow the time and resources of the parties and the limited resources of the court to be spent in extensively debating the application of technical pleadings rules that evolved in and derive from a very different case management environment.
In my view the plaintiff's pleading in this case did fulfil its basic functions. The defendant knew what the plaintiff was claiming and knew what case he had to meet at trial. Indeed, counsel for the defendant was well equipped to address me on the legal principles relating to the tort of intentional infliction of harm. In my view, the point taken by the defendant in relation to the pleading is unduly technical and restrictive, particularly given the way in which the case was run at trial.
In written submissions filed after trial, counsel for the plaintiff has sought leave to amend to plead an alternative, so as to effectively plead in the statement of claim par 5 as follows:
5.The defendant pursued the plaintiff to intimidate her, alternatively pursued the plaintiff, and emotionally abused the plaintiff.
In light of my construction of the pleadings I do not consider it is necessary to so amend, however, if I am wrong in my interpretation of the words in par 5, I should record that I would permit the amendment, given the way this issue was litigated at trial: Water Board v Moustakas (1988) 180 CLR 491, 497 (Mason CJ and Wilson, Brennan and Dawson JJ). I am satisfied there is no prejudice to the defendant, particularly given his guilty plea to the criminal offence and the evidence of the correspondence he wrote as produced at trial.
Finally, if I am wrong and the words 'pursued the plaintiff to intimidate her' pleaded in par 5 of the statement of claim could be construed as and limited to a pleading of intentional or deliberate conduct on the part of the defendant, as opposed to reckless conduct, I find that the defendant's conduct was intentional and deliberate, for the reasons which follow.
Findings on liability for the tort of intentional infliction of harm
The ordinary meaning of the word 'intimidate' is to terrify, overawe, cow: Shorter Oxford English Dictionary. It can also mean to force or deter from some action by threats or violence. Other definitions of 'intimidate' include:
1.To make timid, or inspire with fear; overawe; cow.
2.To force into or deter from some action by inducing fear.
(Macquarie Dictionary 4th Ed)
1.To render timid, inspire with fear; to overawe, cow; in modern use especially to force to or deter from some action by threats or violence.
(Oxford English Dictionary 2nd Ed)
In cross-examination by counsel for the defendant it was established that the defendant did not make any threat to the plaintiff. It was submitted to me in closing that the plaintiff had to establish a threat if the plaintiff was to prove that the defendant intended to intimidate her. I am unable to accept this, as intimidation can occur without threats, a matter which the counsel for the defendant ultimately conceded in closing submissions (ts 344). Further, that is not the way this case was either pleaded or run by the plaintiff at trial.
In this case, it was apparent that the plaintiff was relying on the defendant's plea of guilty to the offence of pursuing another to intimidate. By pleading guilty to that offence the defendant pleaded guilty to all of the elements of the offence. The Criminal Code s 338E, relevantly to this case, defines the terms 'intimidate' and 'pursue':
'intimidate', in relation to a person, includes —
(a)to cause physical or mental harm to the person;
(b)to cause apprehension or fear in the person;
(c)to prevent the person from doing an act that the person is lawfully entitled to do, or to hinder the person in doing such an act;
(d)to compel the person to do an act that the person is lawfully entitled to abstain from doing.
'pursue', in relation to a person, includes —
(a)to repeatedly communicate with the person, whether directly or indirectly and whether in words or otherwise;
(b)to repeatedly follow the person;
(c)to repeatedly cause the person to receive unsolicited items;
(d)to watch or best the place where the person lives or works or happens to be, or the approaches to such a place; …
The significance of a criminal conviction in civil proceedings has been discussed in Mickelberg v The Director of the Perth Mint [1986] WAR 365; Roberts v The State of Western Australia [2005] WASCA 37 [142] – [146] and, more recently in Bennett v The State of Western Australia [2012] WASCA 70 [63] – [67]. It has been recognised that while a conviction is an expression of opinion by a differently constituted court based on hearsay evidence, which is not before the court in the subsequent proceedings, such evidence is relevant and admissible. The weight to be given to the conviction is a matter for the trial judge. The rationale for admissibility is that it offends common sense to exclude evidence of a conviction where the material facts on which it is based, which have been proved beyond reasonable doubt, overlap in whole or in part with the matters that arise for determination in subsequent civil proceedings which has to be determined on the balance of probabilities.
The defendant's conviction for the offence of pursuing another to intimidate and the admitted material facts have been tendered and proved in this case. The defendant elected not to give evidence at the trial of these proceedings.
I have already mentioned that the statement of material facts relating to the offence of intimidation has been largely reproduced in par 5 of the statement of claim. From the time of the sexual offending (which commenced in late 2003) until September 2006, almost three years later, the defendant sent letters, emails, text messages, flowers and gifts to the complainant on a weekly basis. This was intentional and criminal wrongdoing, as admitted by the defendant, and in the absence of any other evidence from the defendant, I am prepared to give considerable weight to the conviction and facts as admitted.
Accordingly, on the balance of probabilities I find that, by his conviction and the admission of the material facts relating to the offence, the defendant pursued the plaintiff to intimidate her.
For the sake of completeness, in light of the defendant's submissions I have reviewed the defendant's communications as produced in this trial, exhibit 6. On the balance of probabilities from this correspondence, I find that the defendant's acts were deliberate and intentional.
After the plaintiff's letter of 4 April 2005 the defendant knew that the plaintiff wanted no more contact with him. In my view the plaintiff's letter could not have been clearer. The defendant ignored that and persisted in corresponding with her, attempting to contact her by telephone, and sending her gifts and flowers.
If it was not clear in April 2005, then it must have been clear to the defendant that the plaintiff did not wish to speak to him when he received no reply to his letters and was unable to speak to the plaintiff when he rang her boarding school. The correspondence which he sent to the plaintiff indicates that the defendant fully appreciated that the plaintiff did not want to talk to him. For example, in his letter of 24 October 2005 he acknowledged that he was annoying her with phone calls. In another letter (exhibit 6, page 127) he wrote about being told by a lady at the plaintiff's school to 'piss off', and in another letter (exhibit 6, page 125) he told the plaintiff he was learning to SMS so that she did not have to talk directly to him.
From the correspondence which followed this, it is apparent that the defendant also appreciated that the plaintiff was hurt and upset by his communications. For example in the letter of 2 February 2006 (exhibit 6, pages 123 ‑ 124) he wrote 'This note is not meant to hurt you'. In another letter of 19 February 2006 (exhibit 6, page 126) he wrote 'Sorry I rung, didn't mean to upset you.' In his letter of 6 May 2006 (exhibit 6, pages 132 – 135). it is apparent from what he wrote that he was aware that sending correspondence to her house upset her, that his note would put her off her studies and that sending her flowers would also upset her. That letter also made it clear that while he knew the plaintiff really did not want him to write to her, he was still going to. On 22 May 2006 (exhibit 6, pages 167 – 169) he wrote 'I know that you think that I'm a problem but I mean you no harm'. Another letter written by the defendant soon after this in June 2006 (exhibit 6, page 143) records that the plaintiff had asked him not to write and that her house mistress had also intervened.
I find that this was not a case of infatuation, as submitted to me by the defendant through his counsel, with no aim to intimidate. I also find that this was not an attempt by the defendant just to 'be friends' with the plaintiff. As the plaintiff herself put it, what the defendant said to her was not what a friend would say. The defendant was a 47‑year‑old man at the time of the sexual offending and there was a 33 year age difference between him and the plaintiff. He knew that the plaintiff did not want to talk to him and did not want him to write to her, yet he continued to communicate or attempt to communicate with her.
Taken individually, it might be argued that each item of correspondence was not intimidating. Taken as a whole, having regard to the frequency and persistency of the correspondence and in the context of the sexual offending which had occurred, I find it was intimidating to the plaintiff. I find that the whole of the correspondence shows a course of conduct by the defendant which was deliberate and persistent, in circumstances where he recognised that what he had done to the plaintiff was wrong, he knew that she did not want him to contact her and knew or ought to have known that his continued contact would cause her mental harm.
The email written by the defendant to the plaintiff on 6 August 2009 demonstrates this. The reference to the events of '2 years before' can only be a reference to the sexual offending. If this was a matter of 'regret' for him, and playing on his mind over that period of time, it must have been obvious to him, and certainly would be obvious to any reasonable person in his position, that the events would also prey on the mind of the plaintiff. Every time he wrote, telephoned, sent a text message or SMS or email, sent flowers or gifts, the plaintiff would be reminded of his offending against her.
I find that that the defendant did deliberately and intentionally pursue the plaintiff and on the balance of probabilities, that he did so to intimidate her. That is, on all of the evidence, the most probable inference: Luxton v Vines (1952) 85 CLR 352, 358. It is more probable than the other inference which the defendant has asked me to draw, which is that his conduct was only misdirected and ill‑advised, and did not spring from any malice or intention to intimidate or harm the plaintiff.
Applying the test from Wilkinson v Downton, I find the defendant wilfully committed a series of acts calculated to cause the plaintiff harm. The defendant's communications and other acts were of such a nature and done in such circumstances that, in the words of Latham CJ in Bunyan v Jordan 'it was naturally to be expected that they might cause a very severe nervous shock' with serious results to the health of the plaintiff.
If I am wrong in my findings concerning the deliberate and intentional nature of the defendant's conduct, then applying the test in Nationwide News Pty Ltd v Naidu [79], [80], the findings I have made about the defendant's conduct establish a reckless indifference to a result which, in the context of this case, is sufficient. What he did was objectively likely to cause harm to the plaintiff.
Even though the defendant may not actually have intended to inflict psychiatric damage, the nature and scale of his conduct was such that a recognised psychiatric injury was a natural and probable consequence of that course of conduct: Nationwide News Pty Ltd v Naidu [82].
I therefore find the defendant liable to the plaintiff for the tort of intentional infliction of harm.
The defendant's argument on the claim in negligence
Given my findings on the tort of intentional infliction of harm, it is not necessary that I consider the alternative claim in negligence.
There are some observations I should make, however, given the matters raised at trial.
The defendant argued that it was not open to the plaintiff to plead the alternative claim in negligence, based on the observations of Gummow J and Hayne J in New South Wales v Lepore (2003) 212 CLR 511 [270]:
[270]As Williams v Milotin (1957) 97 CLR 465 at 470 makes plain, negligently inflicted injury to the person can, in at least some circumstances, be pleaded as trespass to the person, but the intentional infliction of harm cannot be pleaded as negligence …
This statement was in the context of a claim that the defendant in that case should be held liable for the sexual abuse of a pupil by the teacher employed by the defendant. While the plaintiffs alleged intentional trespass to the person, not negligence, by that teacher, the claims against the defendant were founded in negligence, with allegations of vicarious liability or alternatively an allegation of non-delegable duty of care to take reasonable care for the plaintiffs. The High Court held, on the claim based on the non‑delegable duty of care that those who owe a non‑delegable duty to take reasonable care will be held liable for the negligence of others, but not intentional criminal conduct. The observations of Gummow J and Hayne J were made in the context of considering the claim based on a non-delegable duty of care and they went on to say:
[270] … The appellants allege intentional trespasses to the person, not negligence. The appellants' claims founded on an allegation of a non‑delegable duty to ensure that care was taken of them are, therefore, bound to fail.
As a matter of pleading it is possible to raise alternative claims: Kenny v Sholl (1905) 7 WALR 197, 203. Alternative claims may be pursued until judgment, when an election must be made because the judgment will give effect to one right rather than the other: Ciavarella v Balmer(1983) 153 CLR 438, 449.
In this case, the alternative claim in negligence in par 7 of the statement of claim relates to both the sexual offending and the intimidation. There being judgment for the sexual offending in respect of assault and battery, and given my finding on the tort of intentional infliction of harm, the alternative claim in negligence for 'nervous shock' falls away.
Causation
The defendant sought to distinguish the plaintiff's loss and damage arising from the sexual offending, from the plaintiff's loss and damage arising from the intimidation. The argument by the defendant, predicated on a failure by the plaintiff to prove her additional claim based on the intimidation, was that the consequences of the sexual offending were relatively mild and that the intimidation was the predominant cause of the plaintiff's level of distress. If that were the case, and if the defendant was not liable for the claim relating to the intimidation, this could have an impact on the quantum of the plaintiff's claim.
Where there are multiple causes of damage a plaintiff does not have to prove that the event for which the defendant was responsible was 'the' cause, in the sense of the one and only cause, of the plaintiff's condition. It is enough that the plaintiff shows that the event is 'a' cause of the condition for which damages are claimed: Shorey v PT Ltd (2003) 77 ALJR 1104; (2003) 197 ALR 410 [44] ‑ [49]; Van der Velde v Halloran [2011] WASCA 252 [95] ‑ [97].
Where a defendant seeks to assert another cause or causes of the plaintiff's condition, there is an evidentiary onus on the defendant to disentangle and quantify the extent of the plaintiff's condition caused by such other causes: Watts vRake (1960) 108 CLR 158, 160; Purkess v Crittenden (1965) 114 CLR 164, 168; Shorey v PT Ltd.
In this case, the defendant called no medical evidence of his own. It was put in cross‑examination to Dr Proud that the letters and cards were predominantly the cause of her level of distress, as to which Dr Proud firmly responded (ts 169) 'in my opinion, you can't disentangle them.' I find that the consequences of the sexual offending and the intimidation cannot be disentangled.
Thus, even if I am wrong in my conclusions on the liability of the defendant for the tort of intentional infliction of harm, it would make no difference on the issue of the assessment of the plaintiff's damages. There is ample evidence that the sexual offending which constitutes the assault and battery is 'a' cause of the plaintiff's condition for which damages are claimed and, since other factors which contributed to that condition cannot be disentangled, the plaintiff is entitled to succeed for the full amount of her damages.
Assessment of damages
The plaintiff seeks general damages for pain and suffering and loss of enjoyment of life, and loss of earnings, both past and future, as well as aggravated damages.
A claim for exemplary damages was also pleaded, but not pursued at trial, with counsel accepting that exemplary damages cannot be claimed because the defendant was imprisoned for what he did to the plaintiff.
In relation to the claim for loss of earning capacity it is claimed that the PTSD has meant she has lost the opportunity of becoming a teacher, as she had planned, and limited her work capacity. It was submitted that she can do no better than work as a clerk, a position in which she is currently employed.
The defendant has submitted that the level of her PTSD is not as severe as the plaintiff claims, and that she has not lost the opportunity to become a teacher.
The plaintiff's evidence
The plaintiff was obviously distressed by the conduct of the defendant towards her, both the sexual offending and the intimidation, and she still is. Some of the distress in giving evidence in this trial before me was alleviated by the fact that her witness statement stood as her evidence‑in‑chief, however, at various times during the course of her evidence in court the plaintiff became visibly emotional and tearful. I have no doubt that the emotion was genuine.
I have already set out some of the consequences of the defendant's offending and the plaintiff's mental condition in discussing the tort of intentional infliction of harm, particularly from [29] ‑ [60] above.
I find that as a result of the offending against her by the defendant, the plaintiff changed from a happy confident young girl, to a moody and withdrawn one, although she generally managed to keep up public appearances. I find this from the evidence I have already discussed, and the following evidence.
The plaintiff's boarding school headmistress gave evidence that the plaintiff was a pretty, vibrant young girl when she came to the boarding house, but that 'bubbliness' slowly waned. There was a change both in her personality and in her appearance, in particular her hair began to look a little bit limp.
The plaintiff's sister, NR, who was very close to the plaintiff, also gave evidence that in years 8 and 9 the plaintiff had been bubbly, outgoing, friendly and happy. In year 10 she changed and became very 'strange', was not talking much to her friends and was 'closed off' and 'weird'. Although the plaintiff was socialising, she was still 'weird'. I found NR's evidence about this both believable and reliable and I accept it.
NR confirmed that whenever the plaintiff received a letter or phone call from the defendant she would become anxious. The plaintiff was not coping at school. NR also confirmed that matters became more 'intense' during year 12, and described the plaintiff as becoming 'weak', losing weight and becoming 'ridiculously skinny'. The plaintiff also became an object of ridicule at school, with rumours abounding about the plaintiff having an affair with an older man. While NR agreed during cross‑examination that she had probably out of her concern for the plaintiff drawn a darker picture than the plaintiff herself saw, the matters I have set out above are all matters about which the plaintiff herself gave evidence.
The plaintiff's elder sister, PAB, was the first person in whom the plaintiff confided, mid-way through year 10. She described how the plaintiff was absolutely distraught and 'a mess' when telling her about the sexual offending. Since then PAB said she had not raised the matter as she did not want the plaintiff to re-visit those feelings. Over the years PAB had seen the impact it had caused. She had seen the plaintiff experience breakouts of cold sores, nervousness and anxiety. Before this the plaintiff had been energetic, bubbly and full of life. After this she was not the same person and became very reserved, introverted, nervous and needy of others close to her.
During year 10 the plaintiff had been interested in studying to be an early childhood or primary school teacher. The principal of the school the plaintiff attended in year 10 gave evidence that, in discussing vocations with the plaintiff, he had suggested she would make a very good teacher. He gave evidence of having observed her leadership qualities, her ability to communicate with people of all levels and his observations of her with children. Teaching was also an interest confirmed by the plaintiff's sister, PAB, who also observed how good the plaintiff was with children.
At the beginning of year 11 the plaintiff was undertaking TEE (Tertiary Entrance Examination) subjects, however, by the end of the year her mental state had got the better of her and she did badly in her subjects. Faced with poor grades and given her state of mind she decided to drop her TEE subjects and do non-TEE year 12 studies. She decided that as she was not going to get her TEE, her priority should be to graduate from high school. To get into a teaching course she knew she would need to get a sufficiently high TEE score in order to attend university. Her reasoning was that she might be able to get into university another way by completing a TAFE (Technical and Further Education) course.
After completing year 12 the plaintiff enrolled to go to TAFE to complete an Early Childhood Certificate 111, with a view to then obtain a Certificate IV and a teaching qualification. The TAFE where she enrolled for this course was near where her brother lived. Her intention was to live with him.
Before commencing that study, over the Christmas and New Year holidays, the plaintiff worked as a wheat sampler in a country town – what was referred to as working on the wheat bins.
When the plaintiff started at TAFE, she found it was 'not too bad'. However, she found her brother's house was full of people and so took up the offer from the father of one of her workmates at the wheat bins to take the father's holiday house, which was also close to the TAFE. She lived in this house alone, travelling to and from TAFE each day. She also on occasion went on her own to a local pub for a drink.
The pressures of the year, however, became too much for her. She was told about court dates on which the defendant would be appearing. While she did enjoy studying, the upcoming court dates played on her mind and she found it hard to study.
At the urging of her mother, the plaintiff visited another doctor. That doctor gave evidence confirming that he had seen the plaintiff in April 2007. He described her presentation as obviously depressed. She was not sleeping, she was tearful and she described an unwillingness to interact with people, or social avoidance. The doctor asked her about her motivation and that was down. While the plaintiff did mention that there had been some sexually inappropriate abuse, he did not go into specifics with her about this because he thought it would be too sensitive for her. He thought it was more appropriate that a psychologist go into the details of what had gone on and he made a special referral to a psychologist (the 'special' referring to satisfying certain Medicare requirements so that the plaintiff could access visits to a psychologist and have those visits subsidised by Medicare). The doctor considered that the plaintiff was definitely depressed and prescribed an anti‑depressant for her and some sleeping tablets. He made a specific note: 'Was suicidal. Wanted to disappear'. She had not formulated any real suicide plans but what she described was evidence to him that she was definitely depressed. He did not see her again after this, apart from one more occasion in late May 2007 when she attended with a throat infection. He made no note of any concern about her mental state on that occasion.
The plaintiff gave evidence that after she had been prescribed these anti‑depressants, she took them for a while but stopped taking them when they made her angry. Although the doctor also referred the plaintiff to a psychologist, she did not go. The plaintiff explained that every time she went to talk to someone she found she could not do it. She did not like the idea of talking to a complete stranger and felt that no‑one understood. She got worse when she started talking about what the defendant had done to her.
I pause here to note that as the plaintiff was cross‑examined about not wanting to see a psychologist and the fact that she did not like to talk to anyone about what the defendant had done to her, she became visibly upset. She explained she is not ready to go through counselling. I found her evidence about this both believable and understandable. Dr Proud in his evidence also explained that an inability to talk about the events could be a reflection both of her youth and the nature of her personality. The plaintiff was still a young person and, as he put it, a young person sometimes needs to have 'runs about the board, they need stability, they need to mature and to come to it in their own time and that's not an uncommon process'. The defendant has, quite properly in my view, not taken any issue with the fact that the plaintiff has not undergone treatment.
In May 2007 the plaintiff wrote two separate victim impact statements for the defendant's sentencing. Those two victim impact statements were tendered as exhibits in this trial. I was not told why two statements were prepared, however, I assume by their content that one was for the sexual offending and the other was for the intimidation. That charge was originally in the Magistrates Court and dealt with by the District Court on what is known as a s 32 notice (pursuant to s 32 of the Sentencing Act 1995).
The two victim impact statements describe in some detail the plaintiff's emotional distress and mental state at this time. They are consistent with the evidence she has given in this trial. They are also consistent with the impact which sexual offending has on children, long recognised by the courts in this State: Vim v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 147; P v State of Western Australia [2007] WASCA 220; (2007) 177 A Crim R 69 [39] and GJT v State of Western Australia [2011] WASCA 263 [80]. As was stated in Vim [291]:
[291] In the light of those experiences, courts now understand much more clearly the destructive effect of all such offending (whether accompanied by overt violence or not) upon a child's capacity to trust others and to form relationships, and upon the child's sense of self-worth. Particularly in cases of frequent or prolonged abuse, an inability to form adult relationships, or an inability to maintain them, exaggerated doubts and fears in relation to the parenting of the complainant's own children, and disrupted schooling which adversely affects the complainant's future educational and employment prospects, are very common. Also frequently encountered in such cases are drug or alcohol abuse, self-harm, and attempted suicide.
The plaintiff found she was in a really bad state – as she described it in cross‑examination she was overwhelmed by pressure. She decided to both leave TAFE and move out of the house where she was living alone. Her brother renewed his offer for her to live with him, but she was not in a good mental state and not coping. The plaintiff described the time between when she went to the police and when she left TAFE as 'like a blur'. I accept this evidence.
Soon after leaving TAFE in 2007, the plaintiff managed to find employment with a company as a receptionist. It was there that she met her husband. She was 18 years old at the time and he was in his early 30's, although at the time she met him she did not realise how much older he was.
The plaintiff moved from being a receptionist for this company to a sales representative, which involved meeting new people 'on the road'. She found it difficult meeting new people all the time. She felt nervous around customers and felt she was coming across badly to them.
She left the company and did some 'temping' work before she began working for a health club. Although working as a membership consultant, she was able to cope with this better as she was not on the road, but made appointments and people came to her office to see her. Although she did not express it in this way, I find that this job enabled her to remain in a safe working environment and also to have some control over her meeting other people.
While still working at the health club the plaintiff applied for and obtained employment as a sales co-ordinator for another company, where she still works. She is in charge of a small team of sales representatives whom she either sees in the office or deals with over the telephone. She feels safe with her boss and the two girls she works alongside. She knows everybody and does not have different people coming in and out of the office.
When the plaintiff first started in her current employment she took a few days off work. She does not take as many days off work now and if she feels bad in the morning or stressed, her boss is understanding.
The plaintiff has a good relationship with her husband whom she describes as gentle, good to talk to and unlike other men around her age. He is a great support to her, although she is unable to really talk to him about the offending and how it has affected her. One of the reasons for this is that she does not want to upset him. She gave evidence that one night, which I later heard in evidence from her husband was in January 2008, she took an overdose of anti‑depressants and sleeping pills after a particularly emotional day which brought back memories of the sexual offending. Her husband noticed something wrong with her and she told him what she had done. After she vomited up the pills, he stayed up all night watching over her. The following morning he made it clear he did not want anything like that to happen again. She does not want to lose him and so has put thoughts about self‑harm to one side.
The plaintiff's evidence at trial concerning her past and present symptoms as a result of the defendant's offending against her, which I accept, is that:
(a)she has suffered and still suffers from feelings of anxiety. As she explained at trial she feels most anxious in new areas and on social occasions when she is around people she does not know, and more so when older men she does not know are present. She feels better when her husband is with her and he is usually with her. She also suffers from anxiety at times even when she is in her home environment. She explained it depends on her mental state. If she is having a bit of a bad spell she becomes 'a little bit paranoid', for example, if she hears noises outside;
(b)trouble sleeping, which has led in the past to regularly taking sleeping pills. Her problems with sleeping had resolved in the 18 months to two years before trial;
(c)an extra vigilance of her surroundings – as she describes it, she is always cautious of her surroundings particularly in an unfamiliar place, where there are different people around;
(d)a loss of trust and confidence in people. She explained she has a trust issue with anyone with whom she is not familiar;
(e)in the past, particularly while at school during years 11 and 12, she suffered from eating problems. She has not had any difficulties in that area since 2008;
(f)fatigue. As the plaintiff herself explained, however, this was mainly in the early years. She has not suffered from fatigue for the last year and a half;
(g)a pre‑occupation with thoughts of the abuse. As the plaintiff described it 'my mind was fixated on and obsessed with the abuse [and] still is'. As she explained at trial, she thinks about the abuse quite often but it is not something that she talks about because it gets worse when she talks about it;
(h)feelings of guilt, for what her parents have gone through;
(i)feelings of unease in the company of her parents. That has now resolved and she gets on well with them, although she is unable to stay overnight in their home because of its proximity to the defendant's home. The plaintiff's sister PAB also gave evidence of how anxious the plaintiff was attending family gatherings, such as Christmas, at her parents' home. PAB's evidence was that you could see the plaintiff shaking, looking like she was having a panic attack, and she was unable to relax.
(j)an inability to talk to close friends. The plaintiff explained that had occurred mainly during her school years because questions were always asked. The situation has improved over the last couple of years and she has close friends now, although she is unable to talk to them about 'anything like this';
(k)difficulties in relating to men. She has described a 'fear' of any man who approaches her and 'it creeps me out and I shut down';
(l)a restricted social life. In her statement she said she did not go out socially without her husband and did not feel comfortable going out with her girlfriends. At trial she explained she was able to go to girlfriends' houses for dinner or something like that, however, did not go out otherwise if her husband was not with her;
(m)days of withdrawal where, in her words 'I need to hide for awhile. At those times I am unapproachable. I just shut down. I do not want to talk to anyone'. Those days were, as she explained at trial, happening 'at the moment, a lot'. When I asked whether that was because of this court case, she answered:
Probably more so, cos this has been like, obviously, looming. But I have bad times, well, since - well, for a - since I could - in the last - well, since that happened anyways, and that. But it's probably got really bad over the last couple of months leading up to here. But taking this out of the equation, you know, I'd have it every - you know, I couldn't put a finger on it. It's sort of up and down and that. I'd have it like, you know, maybe every couple of weeks or every - I might be right for a couple of months then all of a sudden something will just - something will happen, or something will trigger something and, yeah, I - I can't really ---
At this point in her evidence the plaintiff became visibly upset;
(n)thoughts of self harm, although not so often now.
The plaintiff's husband gave evidence which confirmed the plaintiff's overdose of medication and also the restrictions on her lifestyle, including her reluctance to go out socially without him and what he described as her 'stand-offishness' in dealings with others, apart from close friends. He also confirmed her reluctance to stay at her parents' home. He gave evidence that there are moments when the plaintiff retreats into 'her own little world' and becomes very withdrawn. She is also uncomfortable in groups of more than 10 ‑ 20 people.
Expert evidence
Dr Proud saw the plaintiff on two occasions, once in May 2009 and then again in May 2011. On each occasion he saw her for about an hour and produced a written report.
In his first report of 20 June 2009 he set out the background which he had obtained from his clinical interview with the plaintiff and recorded her symptoms.
In a supplementary report of 25 August 2009 he reported her as having PTSD, of moderate severity. Dr Proud advised that this illness had been present from the first time that she was sexually assaulted and had persisted. In Dr Proud's opinion, it was likely to continue into the future although it should gradually improve but not totally remit over time. At trial he explained that this improvement would apply whether or not the plaintiff underwent treatment. Although improvement was more likely with treatment, even treatment rarely achieved 100% recovery.
In a further report of 25 May 2011 Dr Proud recorded that the plaintiff still had symptoms of PTSD, as she was still getting occasional nightmares and eidetic images of the sexual assault. Talking or thinking about it still made her anxious and going anywhere near where the offending occurred also upset her. While her depression had gone, her restricted lifestyle remained and Dr Proud explained both in his report and at trial that the restrictions were all designed to 'keep her safe'. While the plaintiff had a good relationship with her husband, she still felt unsafe around men she did not know, particularly if they are 'sleazy or macho'.
In Dr Proud's opinion the plaintiff was still suffering from severe, chronic PTSD that had caused her to completely modify her life so that she remains safe and avoids all situations where she thinks she could be a target for men. Part of her strategy is to remain close to her husband and to carefully select working environments where she feels safe.
As he agreed in his cross‑examination, in coming to his conclusions he relied on what the plaintiff had told him. Dr Proud explained that this was based on the plaintiff's subjective distress, the number and intensity of the symptoms and the impact on her life.
Although not canvassed in cross‑examination of Dr Proud, one matter mentioned in his report of 25 May 2011 about which the plaintiff gave no evidence was of having nightmares. However, the other matters referred to in that report were the subject of evidence at trial.
In cross‑examination the evidence given by the plaintiff which differed in some respects from the matters recorded in Dr Proud's earlier reports was put to him. For example, as to the plaintiff's evidence about visiting a local tavern while living alone in 2007, Dr Proud was asked whether that gave an indication that she had a higher level of social functioning. Dr Proud explained that it could or could not, as it would depend on the plaintiff's state, what she experienced and what level of anxiety she experienced. He explained that going by herself could be an indication that she had a good degree of social function or that she had a high intent to prove to herself that she was not unwell. In re‑examination he explained that some people who are ill do not want to admit that they are ill, so they do actions, which people who admitted that they were ill would not do and they do it to hide from themselves the fact that they are ill.
Similarly, when it was put that living by herself would be indicative of a level of social function, Dr Proud agreed, with the rider however, that the available alternatives needed to be looked at.
11
Undated
100
The plaintiff and NR
'I've tried to ring and SMS [the plaintiff] can't get through it would be nice if I could call occasionally I would like to know your number [NR] if it's ok with you and [the plaintiff'].
'It would be nice if one weekend you are at school and not busy with your boyfriends I would love to take you out for lunch or tea.'
'I've often wondered what you did with my teddie bears I gave you ...'
'I found out about your ball dresses no thanks to [the plaintiff's] phone'
12
Envelope post marked 29 March 2006
110 - 112
The plaintiff and NR
'Your Mum said that you both looked bloody beautiful with your ball dresses on. It would be nice if I could get a photo of you and your boyfriends, it would be nice, as you both mean a great deal to me as (illegible) as it sounds' (p 111-112)
'I can't tell you how much it would mean to me to get some word from you both. Maybe a hi on the SMS.' (p 112)
13
Undated but refers to a forthcoming event on 8-10 April
95 – 97
The plaintiff and NR
'... I was just wondering if one of your would like to go with me; if you would like to go perhaps I can ask your mum if its ok or maybe your dad would like to go and you could both come, if your not to busy with your boyfriends'. (p95)
14
Envelope post marked 5 April 2006
113 – 114
The plaintiff and NR
'I hope you had a nice weekend with your honeys. Perhaps you could let me know what you did and where you went, that would be nice.'
'I hope to get some flowers for you both this weekend …' (p 114)
(written the next Saturday) 'Just been to your place to take some flowers …'
15
Envelope post marked 10 April 2006
115 – 118
NR only
'I wrote [the plaintiff] a letter on Friday ...
'It would be nice if I could get your phone no so I could SMS you both ... [the plaintiff's] phone doesn't work'.
16
Envelope post marked 10 April 2006
129
The plaintiff
'To [the plaintiff's] boyfriend, Would it be ok with you if I took [the plaintiff] for a ride on my motorbike one weekend when you don't need her. I love her company and she is a special friend to me …'
17
Envelope post marked 28 April 2006
150 - 151
The plaintiff
'It would be really nice if you could let me know if you get my letters, cause I sent you one the other day asking your manfriend if I could take you for a ride on my bike for a couple of hours, you didn't seem to know anything about it when I spoke to you the other day.' (p 150)
'It would be absolutely great if you could give me your new phone number so I could see how you are going.' (p 151)
'I've been writing and ringing and trying to SMS you and I never get an answer.' (p 151)
18
4 May 2006
130 - 131
The plaintiff
'I just care a lot about you and hope that you don't mind if I write to you.' (p 130)
(After referring to going to a place to collect a coat and pants) '... would have been nice if you could have come with me, anyway I suppose your boyfriend wouldn't have liked it very much.' (p 130)
'It would be nice if you could let me know if you get my letters. Just an empty envelope would be nice or a hi, on the SMS …' (p 131)
19
Post mark on envelope 6 May 2006
132 – 135
The plaintiff
'I sent you a letter on Wednesday, I'm not sure if you read them or not …' (p 132)
'I'm sorry if sending this letter to your house, that it upsets you, it's not meant to. You were the best friend I had when [defendant's wife] was ill and you were cleaning my house … at the moment I really need a friend.' (p 132)
'PS if you don't feel comfortable about visiting me by yourself maybe you could ask your boyfriend to come as well, I would enjoy that …'(p 132)
'I have decided not to send this to you at home, I'll send it to you on Monday. (p 133)
'Please don't let this note put you off of your studies, I know that you will do something wonderful with your life.' (p 133).
'I hope the flowers don't upset you, I just think that they would brighten up your room at school. Sometimes I run out of time to get some for you …'(p 133)
'... I'd still like to write to you if it's still OK. I'm guessing that you really don't want me to but I really do value your friendship and hope that I can continue to keep in touch …' (p 134)
'PS I'll keep writing to try and gain your respect back, I'm proud of you and I want you to be proud to call me your friend.'
20
Envelope post marked 10 May 2006
157 – 158
The plaintiff
'It would be nice if you could tell me what you are doing at the moment and if you are doing ok at school.' (p 158)
PS I supposed you'll be off to [place] as soon as you finish school. If you are, could you please give me an address or a phone number. So I can keep in touch, as you mean a lot to me writing to you and [NR] is the only thing that keeps me sane lately' (p 158)
21
15 May 2006 (envelope post marked 17 May 2006)
136 – 137
The plaintiff
'I sent the letter today for you with a couple of rose petals cause I didn't have time to get you some flowers.' (p 136)
'If your not doing anything one weekend the offer still stands to go for lunch … you know my mobile number you can ring or SMS any time you like (really would love to hear from you) …' (p 136)
'I haven't seen your new ball photos. I believe that your dress was drop dead gorgeous. I tried to SMS you in Perth when you were looking for it to see if you found the one you wanted.' (p 137)
22
22 May 2006
167 – 169
The plaintiff
'I really hope that you read my letters, I spose I never really know unless you tell me. I tried to SMS a few more times, the message goes through but I'm guessing your old number doesn't work, I'll keep trying anyway, maybe I'll get an answer one day.' (p 167)
(After discussing cars) 'red is a great colour for young girls oops young women, it makes them look pretty hot …'
'How are things going with your boyfriend is he treating you like a lady. I'll kick his effen ass if he's not. I really hope he is he treating you how you should be treated, instead of just using you.'
'I forgot to say, if you get your car, would you come and visit me for a couple of minutes it would really make my day.' (p 168)
(After suggesting she might phone him if she feels she cannot talk to her parents about anything) 'I'm only a phone call away… I know that you think that I'm a problem but I mean you no harm. It's just nice to have a wonderful caring and mature young lady to talk to …' (p 169)
23
Envelope post marked 26 May 2006
138 – 139
The plaintiff
'I dropped some flowers off for you and [NR] and your Mum, I hope you liked them …' (p 138)
'I still would love to get an SMS from you, letting me know how you are.' (p 138)
'I'm trying really hard to write sensible letters to you, and I hope you don't mind reading them even though most of them are trivial stuff … I'm really hoping to hear from you soon.' (p 139)
24
Envelope post marked 30 May 2006
142
The plaintiff
This is a short note stating 'hope things are going well, nothing to tell you except I'm thinking about you and wish you the best.'
25
Envelope post marked Illegible. June 2006?
143
The plaintiff
'I know you asked me not to write. I know your house mistress told me to fuck off …'
'I didn't get time to take you some flowers so I'll send a pressed one …'
'I hope that you can trust me again.'
26
Envelope post marked 13 June 2006
161 – 162
The plaintiff
'[name of person] sent me an email about 1 minute for (illegible) your address was on it. If I sent you an email would your parents be able to read it.'
'I'm still waiting to hear from you, how you and [NR] are going.' (p 161)
'I still try your phone at least once a week to see if it works. It doesn't.' (p 162)
27
Envelope post marked 19 June 2006
149
The plaintiff
Note: unable to ascertain which item of correspondence relates to this envelope
28
Envelope post marked 26 June 2006
144 – 146
The plaintiff
'I'm sending you a self addressed envelope, I'm really hoping that you send it back with or without anything in it.' (p 144)
'… I spose you really don't have time to write to me it would be just nice to know if you read my letters?' (p 144)
'I tried to send an email just a short note to say hi to you and [NR]….it said rejected by server whatever that means. It seems like every time I try to get in touch with you nothing works. Oh well I'll just have to hope that you read my letters and with luck you will contact me one day just for a chat about anything you like, that would be great …' (p 145)
'I really need your friendship and to know that your not angry at me any more.'
'I'd still like to come to [place] and take you out for a coke or a milkshake or whatever you like one day after school ...' (p 145)
'I stuffed up big time with you. It would be really nice if you could forgive me for hurting you and let me know how you are today …'
PS 'I don't know how to contact you other than these letters if there is another way perhaps you could tell me. Perhaps if you could look at me like your pen pal then it won't be so bad…it would be great if you could [stay] in touch I would like that.' (p 146)
29
Envelope post marked 26 June 2006
159 – 160
The plaintiff
'I don't know if you got your email or not but I went to your place on Sunday (to help the plaintiff's mother).'
'I'm writing sensible letters and trying to keep a special friendship going even if you don't think so. I'll keep asking if its ok to sms or write or email or ring, I don't care if you have a boyfriend. I'm sure he would understand that you have other male friends even though I'm an old fart. I would really like to keep in touch with you….Really hope to hear from you soon.' (p 160)
30
Undated but letter refers to 15 July - ?15 July 2006
154 – 155
The plaintiff
'I know you didn't want me to write but I just had to tell you that it was so nice that you took a couple of minutes to talk to me today …' (p 154)
(After telling the plaintiff how he cares for her and would like to help her) 'I realise you are extremely busy with school and homework and things, but if you've got a few spare minutes I would love to hear from you. I still carry my phone.
The flowers are for you, but if I didn't give [NR] the same it would look wrong. I value your friendship more than you think.' (p 155)
31
Undated but given reference to plaintiff's age in the letter probably written July 2006
153
The plaintiff
'I wish I knew what to say to you so that you would write or SMS me. It would be just great.'
(After referring to the age difference between the plaintiff and the defendant) but it would be really nice to know how your life is going. I don't know [NR]'s number and your phone doesn't work. I've sent lots of SMS and never get an answer.'
'Once again I'm sorry I rang you at school. I was trying to see if everything was going alright. The only other way is to write you a letter. Anyway I'll keep writing to you and [NR] and hopefully you'll write or ring back one day.'
32
Envelope post marked August 2006
103 – 105
Letter to the plaintiff and NR
Refers to the plaintiff's birthday earlier in the month.
'I hope my present wasn't too babyish.'
33
Undated but likely to be after August 2006 as the letter refers to it not being long before the plaintiff leaves school
140 – 141
The plaintiff
'I know you are extremely busy but it would be really nice if you could ring or write an SMS probably doesn't mean much to you but it would mean a great deal to me.' (p 140)
'It's not long now before you leave school, I'm really hoping that you get the job you want. I'm also hoping that you can let me know where you are so I can keep in touch. Every mail day I go to the letter box hoping that you have sent me a note.' (p 141)
'I don't mean to hurt you or upset you ...'
34
Undated
147 – 148
The plaintiff
'I'm hoping to get a note from you in the mail, I know that sounds really dumb but it would be sooo nice to hear about your life and what your thinking about doing when you leave school.' (p 147)
'Today is Sunday….I didn't get a letter on Friday it's sort of ok I didn't really expect one but it would have been nice …'
'Hope to hear from you soon.' (p 148)
35
Undated
152
The plaintiff
'It's Sunday night I just rang, you sounded very happy …'
'It would be nice if you could tell me if it's okay to write or ring every now and then ... don't be afraid to ring or write. I'd love to hear from you.'
36
Undated card
163 – 164
The plaintiff
(The card is not written in by the defendant)
37
Undated
165 – 166
The plaintiff
'The flat flower is for you, the card you can do what you want with.' (p 166)
'Can't understand why you don't write but it would be nice if you could.' (p 166)
38
Undated
170
The plaintiff
'it was nice to see you today (FRI) you look good ...' (From the description then given it is apparent that he has seen her at her parent's home).
'I didn't realise that you hadn't read your messages, but I left one for you a week ago saying that I didn't want to get into your pants, I just need your friendship.'
(After referring to the age different between them) 'but I really like hearing about your life as it interest me to know how you are going with school, sex, and relationships and whatever else bothers you.'
'I realise that you will probably never ring or write, but it would make my day if you did occasionally.'
'I'm sorry if I ring at the wrong time sometimes as I forget what times I could ring.'
39
Envelope post mark illegible
156
The plaintiff
'I hope you don't mind too much if I write occasionally, I really like to write to you.'
'I know I've rung you a few times lately I hope it doesn't piss you off to much … your happy voice cheers me up. I like to hear how things are going … I can't explain why, without upsetting you.'
'To an extra special person in my life.'
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: JMD -v- GJH [2012] WADC 124 (S)
CORAM: DAVIS DCJ
HEARD: 3 OCTOBER 2012
DELIVERED : 12 OCTOBER 2012
SUPPLEMENTARY
DECISION :12 OCTOBER 2012
FILE NO/S: CIV 1189 of 2009
BETWEEN: JMD
Plaintiff
AND
GJH
Defendant
Catchwords:
Practice and procedure - Costs - Special costs orders - Application to remove scale limits - Application for certificate for the transcript
Legislation:
Legal Profession Act 2008 (WA) s 280
Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010
Result:
Application allowed in part
Representation:
Counsel:
Plaintiff: Mr I Morrison
Defendant: Mr T Offer
Solicitors:
Plaintiff: Michael Rogers & Associates
Defendant: Curwood & Co
Case(s) referred to in judgment(s):
Como v Helmers [2011] WASC 179 (S)
Dakin Farms Pty Ltd v Elite Grains Pty Ltd [2012] WADC 43
Fagan v Morien [2008] WASC 54 (S)
Frigger v Lean [2012] WASCA 66
Heartlink Ltd v Jones as liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S)
M v J & J v J (Unreported, WASC, Library No 920598, 19 November 1992)
Miller v Evans [2010] WASC 127 (S)
O'Rourke v P & B Corp Pty Ltd [2008] WASC 36 (S)
Pourzand v Telstra Corp Ltd [2012] WASC 210 (S)
S v Neumann (1995) 14 WAR 452
SDS Corp Ltd v Pasdonnay Pty Ltd [2004] WASC 26 (S)
DAVIS DCJ: On 10 August 2012, I gave judgment in this matter for the plaintiff. I made orders which included giving the plaintiff liberty to apply within 30 days for special costs orders.
The plaintiff, within the time allowed, filed an application for special costs orders. Some of the orders sought in the application were resolved at a hearing which took place before me on 3 October 2012. The remaining orders sought by the plaintiff, opposed by the defendant and requiring this supplementary decision, are as follows:
3.The plaintiff's costs be taxed without regard to the limits (whether as to hours or hourly rates or otherwise) prescribed by the relevant determinations of the Legal Practitioners (Supreme Court) (Contentious Business) Determination in relation to:
(a)getting up;
(b)the counsel fee on brief;
(c)the second subsequent days of the trial.
4.There be a certificate for the transcript.
Application to remove the limits of the Legal Practitioners (Supreme Court) (Contentious Business) Determination
That part of the application seeking the taxation of the plaintiff's costs without regard to the limits set by the Legal Practitioners (Supreme Court) (Contentious Business) Determination (the Scale) is brought pursuant to s 280(2) of the Legal Profession Act 2008 (WA). This permits the court to make a special costs order if it considers that the Scale costs are inadequate because of the unusual difficulty, complexity or importance of the matter.
The relevant principles to take into account when determining an application made pursuant to s 280(2) may be summarised as follows:
(a)In order for the court to make a special costs order under s 280(2) the court must first form an opinion that the costs allowable under the Scale would be inadequate and then form an opinion that such inadequacy arises because of the unusual difficulty, complexity or importance of the matter: Heartlink Ltd v Jones as liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S) [11] (Martin CJ); Pourzand v Telstra Corp Ltd [2012] WASC 210 (S) [9] (Edelman J);
(b)The requirement of inadequacy will be demonstrated if the applicant shows that there is a fairly arguable case that the bill to be presented to the taxing officer may tax at an amount which is greater than the limit imposed by the Scale: Heartlink [15], [16], [22]; Pourzand [11].
(c)Because the inadequacy of costs is a determination which will ordinarily be made in advance of taxation, this should be addressed as a matter of impression rather than of detailed evaluation: Heartlink [20], [22].
(d)Evidence of the costs actually incurred by the applicant will not always be required. In some cases it may be necessary to prove the criteria in s 280 by specific evidence. In other cases, the court may be able to form a view from its knowledge of the case (particularly when the judge hearing the application was the trial judge): Frigger v Lean [2012] WASCA 66 [81] – [82] (Allanson J, Newness and Murphy JJA agreeing); Pourzand[12].
(e)An applicant is also not required to demonstrate that a limit is inadequate by reference to a detailed evaluation of a draft bill for taxation: Heartlink [20] – [21]; Frigger v Lean [82]. The court should not conduct a provisional taxation of costs and then ascertain whether, on the basis of that provisional taxation, the amount allowed in the Scale is inadequate. That would result in significantly usurping the role of the taxing officer and would also result in the undesirable practice of double handling of the assessment of costs. All that is required of a court is that it form a view on the question of whether there is an arguable case to be put before a taxing officer to the effect that the limit imposed by the Scale would be inadequate because of the 'unusual difficulty, complexity or importance of the matter': O'Rourke v P & B Corp Pty Ltd [2008] WASC 36 (S) [20] - [21] (Martin CJ).
(f)'Unusual' in s 280(2) qualifies 'difficulty' only and not 'complexity' or 'importance': SDS Corp Ltd v Pasdonnay Pty Ltd [2004] WASC 26 (S), [102] - [106]; Heartlink [17]; Pourzand [13].
(g)"Unusual difficulty' suggests that a matter was more difficult than would ordinarily be expected in a matter of the kind under consideration: Fagan v Morien [2008] WASC 54 (S) [19] (Templeman J); Como v Helmers [2011] WASC 179 (S) [18] (Corboy J).
(h)The reference to 'importance' includes consideration of whether the work done was appropriate to the significance of the issues that arose in the litigation. The significance of issues can be to the parties themselves or to other prospective parties, or to the public or to the community generally: Heartlink [17] – [19].
(i)However, the fact that the matter is considered to be of great importance to the parties, or even a matter of significance to others beyond the parties, may not be enough. As stated by Hall J when he considered the equivalent provision to s 280(2) in the Legal Practice Act 2003 (WA) (s 215) in Miller v Evans [2010] WASC 127 (S) [36] – [37]:
36In regards to the importance of the matter, it would be too easy to dismiss the matters at issue in this case as being a neighbourhood dispute. The matter was considered to be of great importance to the parties and, as I have noted, proceeded over six days. It could also be fairly argued that the issues are of significance to prospective parties given that the restrictive covenant at issue in this case is one that burdens other properties in the area. One of the matters at issue at the trial was the interpretation of the covenant and the nature of structures which are covered by it. I accept that that is a matter of significance to others beyond the parties to this action.
37However, those factors alone do not convince me that the matter was of unusual difficulty, complexity or importance. The usual order of party/party costs might be too readily departed from if cases such as this were thought to justify the exercise of the power under s 215(2). No doubt an argument could be made for almost every case that is difficult, complex or important in some respect or other. Certainly the parties might often see it that way. In my view the issues in this case would not in themselves justify an order in broad terms …
(j)The assessment of the question of whether or not there is 'unusual difficulty, complexity or importance' is essentially a value judgment having regard to the court's experience of the particular case and compared to the usual run of cases: O'Rourke [23] - [24]; Dakin Farms Pty Ltd v Elite Grains Pty Ltd [2012] WADC 43 [25] (Commissioner Gething).
Is the amount of costs allowable under the scale inadequate?
There is evidence in support of this application, consisting of an affidavit sworn by the plaintiff's solicitor. This annexed a diary of attendances maintained by counsel for the plaintiff showing he spent 287 hours and 54 minutes relating to work carried out on the plaintiff's claim at an hourly rate of $420, together with a ledger printout from the plaintiff's solicitors showing unbilled work in progress of $63,087.20 (applying a rate of $400 per hour plus GST) and disbursements of $8,701.56.
The affidavit also deposed to the fact that:
(a)the hours spent by counsel in relation to the plaintiff's claim includes time spent in relation to a preservation order application, the costs of which are not to be claimed against the defendant and will not be charged; and
(b)the unbilled work in progress of the plaintiff's solicitors includes attendances in relation to getting up for trial, including taking witness statements and periodically updating issuing proceedings, attending conferences with counsel, considering and checking documents drafted by counsel, issuing subpoenas, attending inspection of documents, giving discovery of documents and arranging and contacting witnesses and ensuring attendance of those witnesses at trial.
There is little else stated in the affidavit apart from these matters.
The relevant Scale is the Legal Practitioners (Supreme Court) (Contentious Business) Determination from both 2008 and 2010. The latter Scale came into operation from 1 July 2010. It is apparent from the diary of attendance of counsel that most, if not all, of the work which could be regarded as getting up and fee on brief occurred after that date. Before 1 July 2010, the work carried out by counsel related to the preparation of the statement of claim and preparation for the summary judgment hearing (on which orders for costs in favour of the plaintiff had already been made before the trial of this matter).
Item 17 of the 2010 Scale allows getting up by a senior practitioner of $51,480. Items 20(a) and (b) allow $15,345 for fee on brief including the first day of trial and $3,410 for the second and successive days on trial.
The trial which took place before me between 26 ‑ 29 March took three and a half days. Accordingly, I calculate the 2010 Scale allowances to be as follows:
Item 17
Getting up
$51,480
Item 20(a)
Fee on brief
$15,345
Item 20(b)
Second and successive days (two and a half days)
$8,525
Total
$75,350
The first requirement before a special costs order can be made, about which I must be satisfied, is that the Scale item is inadequate, in the sense that there is a fairly arguable case that the bill to be presented to the taxing officer may tax at an amount which is greater than these Scale limits.
I have not been provided with a calculation of the amount of work undertaken by counsel relating to the freezing order which will not be charged or claimed against the defendant. My own calculation taken from the items in counsel's diary of attendances which have been 'struck out' and the evidence of counsel's hourly rate of $420 is that the work on the freezing order amounts to approximately $6,000. It is apparent also from counsel's diary of attendances that some of his work corresponds to other items in the Scale, other than getting up case and trial work. Apart from work done on the statement of claim and the summary judgment application which I have already mentioned, counsel also did preparation for and attended at a pre-trial conference, attended other court appearances and directions hearings, drafted amendments to the statement of claim and undertook work relating to discovery – including the drafting of the supplementary list of documents – and inspection of documents. There was also work done on an appeal from a decision of a deputy registrar on an interlocutory matter, which I heard on the first day of the trial and for which the orders I made included that there be no order as to costs. While there is no breakdown of the unbilled work in progress of the plaintiff's solicitors, from counsel's diary of attendances it is apparent that some of counsel's work might be recovered under other items of the Scale.
These matters make the assessment I must make of the inadequacy for the Scale items 17, 20(a) and 20(b) difficult. I am, however, entitled to draw from experience and act on impressions, rather then detailed evaluation. A conclusion that it is fairly arguable that costs might be taxed at an amount greater then the Scale does not always require evidence of the costs actually incurred. Notwithstanding the difficulties I have mentioned, having regard to the fees for counsel which I can readily ascertain from his diary of attendances do relate solely to items 17, 20(a) and 20(b) of the Scale, even without any breakdown of the solicitor's costs, I consider that there is a fairly arguable case that the costs for these items are greater than the limit imposed by the Scale.
While I have formed an opinion that the costs would be inadequate and be taxed at an amount above the Scale, that is not the end of the matter. I need to be satisfied, and form an opinion, that the inadequacy arises because of the unusual difficulty, complexity or importance of this matter. The unusual difficulty of the case, or its complexity, or the importance of the matter will be relevant to the degree of work that may be properly and reasonably done in preparing for and presenting the case at trial.
Was this matter unusually difficult?
It has been submitted on behalf of the plaintiff that there were unusual difficulties in this trial as a result of the combination of the following:
(a)difficulties obtaining documents; the need to subpoena the Commissioner of Police and the Department of Education; the need to examine many documents so produced including school reports going back to primary school; the need to request and subpoena medical notes going back to 2005;
(b)obtaining documents from The Director of Public Prosecutions and complying with their requirements;
(c)the need to deal with and call the plaintiff's general practitioners;
(d)as to loss and causation, the need to call the plaintiff's school principal and boarding house principal, her sisters and her husband;
(e)difficulties persuading the plaintiff to see a psychiatrist and obtaining a definitive answer from the psychiatrist; and
(f)the fact that the plaintiff's lawyers have spent a lot of professional time on the case over three years.
In my view, none of these matters demonstrate that this case, which was a personal injuries case, was of unusual difficulty.
In my experience, it is common for plaintiffs in personal injuries cases in this court to subpoena, in advance of trial, documents from third parties. Where a plaintiff is a child at the time of an injury, and does not have a record of employment, it is usual for school reports to be produced in lieu of tax returns.
The documents which were obtained from The Director of Public Prosecution related to the transcript of the sentencing hearing and the certificates of final outcome relating to the charges to which the defendant pleaded guilty. I do not consider there was any unusual difficulty in relation to this, something which was conceded by counsel for the plaintiff during the hearing of the application before me.
As to the need to deal with and call the plaintiff's general practitioners, there was nothing unusually difficult in this case, compared to other personal injuries cases where a number of medical practitioners may need to be called to give evidence. There was not much time taken up by evidence given by the plaintiff's general practitioners and there were no difficult issues of an expert nature arising from the evidence they gave which was in dispute and needed to be resolved. In fact, as I observed in my reasons for judgment, the defendant called no expert evidence of his own.
As to loss and causation, although in this case there was a need to call the plaintiff's school principal and boarding house principal, in any personal injuries claim of this nature, involving the loss of a chance for a person who has not previously been employed, such evidence will be required. It is also not uncommon for the spouse or other family members of the plaintiff in a personal injuries case to give evidence as to matters relating to certain aspects of the plaintiff's loss and damage.
In relation to the plaintiff's difficulties in seeing a psychiatrist, while I accept that the plaintiff may have been initially reluctant to see another doctor, that is not, in my opinion, an unusual difficulty. It can be the case in personal injuries claims that a plaintiff may be required to see a medical practitioner which he or she does not wish to – see for example the provisions of O 28 r 1 Rules of the Supreme Court 1971. In any case, the plaintiff did see Dr Proud, she was able to discuss matters with him and he was able to give evidence to assist her case. So far as the submission that obtaining a definitive answer from Dr Proud involved some difficulties, in the evidence which was led during the trial, there was some correspondence from the plaintiff's solicitors to Dr Proud where they sought further information and opinions from him, particularly in relation to the plaintiff's loss of earning capacity, however, in my experience there is nothing unusual in any plaintiff's solicitors seeking further answers from a medical specialist on particular issues.
Finally, the fact that the plaintiff's solicitors have spent a lot of professional time on the case over the three years since its inception is not, in my view, a reflection of anything which is unusually difficult about this case.
The trial of this matter was not a long one. There were not many issues in the case. There was no evidence before me that a large number of documents were discovered and the number of documents tendered in evidence was not large. I have not been provided with any evidence that the plaintiff or her legal representatives faced any significant difficulty in identifying, marshalling and presenting evidence.
I am not satisfied that the inadequacy in costs allowable under the Scale arises because of the unusual difficulty of the matter.
Was this case complex?
It was submitted that the case was factually complex involving offences from late 2003 and requiring an extensive examination, including examining the plaintiff's performance in her studies, her life at boarding school, her mental and physical state and life after school. It was also submitted that there was some legal complexity because of the following matters:
(a)this was a loss of opportunity case with the plaintiff having not earned income before the infliction of wrongs upon her;
(b)the plaintiff had to lead evidence showing she probably would have received a sufficient TEE and admitted into a teaching course, and evidence about the length of the teaching course, earnings of a teacher, and so on;
(c)there was a need to consider the Criminal Injuries Compensation jurisdiction, its advantages and disadvantages;
(d)causation was a live issue;
(e)the tort of intentional infliction of harm is rare and not straightforward;
(f)the Civil Liability Act was relevant;
(g)the consequences of a plea of guilty to a crime had to be considered; and
(h)complexity generally in quantifying damages.
In my view, this case was no more complex than many other personal injuries cases involving issues of liability and the assessment of damages.
In any personal injuries claim, the plaintiff's medical condition, expert evidence about that condition and evidence about lost earning capacity and the prospects of future earning capacity (including the likely levels of those future earnings and the plaintiff's retained earning capacity) are usually canvassed. So far as the assessment of damages involved in this case was concerned, there was no dispute between experts which needed to be addressed. The assessment of general damages, past and future loss of earning capacity involved an assessment which was, in my view, not of complexity having regard to other personal injuries matters in this court.
While the plaintiff elected to pursue the defendant in tort, rather than to seek criminal injuries compensation, it is well established that ordinary tortious principles ought to be applied in the assessment of criminal injuries compensation, subject to the statutory maximum limit of compensation payable: S v Neumann (1995) 14 WAR 452, 462; M v J & J v J (Unreported, WASC, Library No 920598, 19 November 1992). In criminal injuries compensation cases, it is often the case that the applicant has had his or her education and possible employment prospects affected by a sexual offence committed on the applicant at a young age. In order to properly assess a young applicant's earning capacity, evidence is usually provided of the applicant's school records and the occupation or profession for which the applicant had an ambition and may have qualified, but for the offences against him or her.
While this case involved some consideration of the tort of intentional infliction of harm, it did not involve considering or interpreting any principles of law which were either new or untested.
In my view, neither the factual nor legal issues in this matter made it complex, and I do not consider that it was any more complex than many other personal injuries actions dealt with by this court where both liability and quantum are in issue.
I am not satisfied that the inadequacy in costs allowable under the Scale arises because of the complexity of the matter.
The importance of the case
It was argued by the plaintiff that the case was of particular importance to her, because, among other reasons, it provided recognition of her suffering and loss. It was further submitted that the case was important to the public because it sends a message that a crime may attract a financial as well as a criminal penalty and that the law is equal to the task of assessing, in monies worth, the damage done to a victim.
While the matter was clearly important to the plaintiff, I do not believe she is in a different position from any other plaintiff who is injured and seeking recovery from a defendant liable in tort.
So far as it has been submitted that this matter sends a message that a crime may attract a financial as well as a criminal penalty, it is already the case, pursuant to pt 6 of the Criminal Injuries Compensation Act 2003, that orders can be made which require the offender to reimburse to the State all or part of the compensation awarded to an applicant for criminal injuries compensation.
Counsel for the plaintiff submitted that the importance of this case was that 'we have a judgment now which sets out the legal causes of action and a discussion of their application to a crime, particularly a sexual crime'. While it is true that there are few decisions dealing with claims in tort following sexual offences, and a claim based on the tort of intentional infliction of harm is not a common claim, the principles of the tort are not new and I merely applied the principles as set out in the authorities to the facts of this case.
I am not satisfied that the plaintiff's costs should be taxed other than on a party/party basis because of the importance of the matter, either to the plaintiff or the public generally.
Whether there should be a certificate for the transcript
I am prepared to allow a certificate for the costs of the transcript of the trial. The fact that there was a running transcript was, I accept, helpful to the plaintiff's counsel. It was also of assistance to the court.
Conclusions on the application for special costs orders
For the reasons I have given, in relation to the orders sought by the plaintiff in the application for special costs orders:
(a)I refuse the application for special costs orders made in terms of par 3 of the plaintiff's application. While I have formed the opinion that the costs otherwise allowable would be inadequate and be taxed at an amount above the Scale, I am not of the opinion that the inadequacy arises because of the unusual difficulty, complexity or importance of this case.
(b)I will allow the application for the certificate for the transcript, par 4 of the plaintiff's application.
I will hear from the parties in relation to the costs of the application for special costs orders.
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