Ms P v Mr D

[2020] NSWSC 224

Supreme Court

New South Wales

Medium Neutral Citation:

Ms P v Mr D [2020] NSWSC 224

Hearing dates:

23-26 September 2019

Date of orders:

16 March 2020

Decision date:

16 March 2020

Jurisdiction:

Common Law

Before:

Simpson AJ

Decision:

Judgment for the plaintiff in the amount of $853,550.

 The defendant to pay the plaintiff’s costs of the proceedings.

Catchwords:

TORTS – intentional torts of sexual assaults and physical assault – four counts of sexual assault admitted and others denied by defendant – standard of proof – s 140 Evidence Act 1995 (NSW) –Briginshaw standard – disputed torts proved on credibility of witnesses

 

EVIDENCE – tendency evidence – whether assaults the defendant admitted to should be allowed as tendency evidence to prove whether the disputed assaults occurred – notice requirement under s 97 of the Evidence Act 1995 (NSW) met – similarity of fact patterns between admitted and denied assaults – tendency evidence significantly probative for at least some of the disputed assaults – tendency evidence admitted for at least some of the disputed assaults but not necessary as court satisfied that the assaults occurred even absent tendency evidence

 

TORTS – Wilkinson v Downton claim – whether torts committed were calculated to cause physical, psychiatric or psychological harm – each assault was calculated to and did cause the defendant such harm – not satisfied that defendant’s overall abusive and controlling behaviour aside from the assaults sufficient to satisfy the Wilkinson v Downton test - assaults sufficient to establish a Wilkinson v Downton claim even absent more general behaviour towards plaintiff

 

LIMITATION OF ACTIONS – no limitation period applicable to counts of sexual assault – s 6A Limitation Act 1969 (NSW) – whether 2012 non-sexual assault statute barred by 3 year discoverability period in s 50C of Limitation Act 1969 (NSW) – defendant bears onus of proof for an action being statute barred – defendant failed to discharge onus of showing psychological and psychiatric harm specifically attributable to the 2012 assault became discoverable more than three years prior to plaintiff commencing action

 

DAMAGES – whether damages assessed under the Civil Liability Act 2002 (NSW) – each assault excluded from the damages provisions of the Civil Liability Act 2002 (NSW) – damages at large

 

DAMAGES – general and aggravated damages – general damages awarded for impact of sexual and physical assaults on plaintiff’s childhood and life more generally – recognised psychiatric condition – aggravated damages awarded because assaults caused ‘injury to feelings caused by insult, humiliation and the like’

 

DAMAGES – plaintiff claims for past and future medical expenses – allowance based on estimate – limited evidence to support plaintiff’s specific quantification

 

DAMAGES – economic loss – plaintiff claims for losses related to past and future economic loss –estimate – limited evidence to support plaintiff’s specific quantification

  DAMAGES – exemplary damages – defendant’s conscious wrongdoing was done in contumelious disregard for the plaintiff’s rights – discretion should be exercised in favour of plaintiff – exemplary damages awarded

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 3B, 71
Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7
Crimes Act 1900 (NSW), ss 61J, 66C
Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3 Div 3, s 66C
Evidence Act 1995 (NSW), ss 97(1), 98, 140
Limitation Act 1969 (NSW), ss 6 A, 14(1), 50C,

Cases Cited:

Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419
Briginshaw v Briginshaw (1938) 60 CLR 336; [1998] HCA 34.
Bunyan v Jordan (1937) 57 CLR 1; [1937] HCA 5 Northern Territory v Mengel (195) 185 CLR 307 [1995] HCA 65
Dickens v State of NSW [2017] NSWSC 1173
Gray v Motor Accidents Commission (1998) 196 CLR 1; [1998] HCA 70.
Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51; [2000] FCA 1886
Magill (2006) 226 CLR 551; [2006] HCA 51
Nationwide New Pty Ltd v Naidu (2008) 71 NSWLR 471; [2007] NSWCA 377
Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; [1966] HCA 37
Wilkinson v Downton (1897) 2 QB 57.

Category:

Principal judgment

Parties:

Ms P (Plaintiff)
Mr D (Defendant)

Representation:

Counsel:
D J Hooke SC/N J Broadbent (Plaintiff) 23-25 September 2019)
D J Hooke SC/N J Broadbent/S Grey (Plaintiff) 26 September 2019)
P R Glissan (Defendant)

  Solicitors:
Clinch Long Woodbridge Lawyers (Plaintiff)
Armstrong Legal (Defendant)

File Number(s):

2017/361142

Publication restriction:

Names of parties are suppressed

Judgment

1. HER HONOUR: By statement of claim filed on 29 November 2017 the plaintiff claims damages, aggravated damages and exemplary damages from the defendant, together with interest and costs. She has identified the causes of action on which she relies as assault and battery and the intentional infliction of physical and psychiatric injuries.

2. She alleges that the defendant, on seven occasions between 1995 and 2001, sexually assaulted her, and, on one occasion in 2012, physically (but not sexually) assaulted her. She also alleges that, between 2001 and 2012, the defendant, by verbally abusing and belittling her, intentionally caused physical and psychiatric injury. In the statement of claim she nominates this conduct, together with some other conduct to which reference will be made below, as “the related abuse”. In respect of those allegations, she pleads a cause of action based on the decision in Wilkinson v Downton (1897) 2 QB 57.

3. She alleges that as a consequence of the assaults and the related abuse, she suffers a variety of psychiatric or psychological conditions and continuing disabilities. She also alleges that, as a consequence of one of the sexual assaults, she became pregnant, and suffered physical consequences as a result of the pregnancy, of labour, and of giving birth.

4. On 3 August 2018 the defendant filed a defence. He admits having sexually assaulted the plaintiff on four occasions between 2000 and 2001 and that each such assault constituted the tort of assault and battery. He denies all allegations other than the four assaults between 2000 and 2001. In respect of the alleged non-sexual physical assault in 2012, he pleads a defence under s 50C of the Limitation Act 1969 (NSW). In respect of the Wilkinson v Downton claim, he pleads a defence under s 14(1) of the Limitation Act. In respect of the claim for damages generally he invokes s 71 of the Civil Liability Act 2002 (NSW), (which imposes restrictions, “in civil proceedings for the birth of a child”, on the award of damages for economic loss associated with the birth).

5. On 28 November 2017 a judge of the Common Law Division, pursuant s 7 of the Court Suppression and Non-Publication Orders Act2010 (NSW), made orders prohibiting the publication or other disclosure of any information tending to reveal the identity of the parties to the proceedings, and of certain other individuals associated with the parties. In order to facilitate compliance with those orders, he assigned a pseudonym to each of those individuals. Those pseudonyms have been used throughout the proceedings and will continue to be used in these reasons.

Background

6. The following background facts are uncontroversial.

7. The plaintiff was born in June 1985. Initially, she lived with her mother (who was given the pseudonym “Ms PD1”) and her father in a Newcastle suburb. In November 1988 a brother (given the pseudonym “Mr PS1”) was born. In about 1989 or 1990 Ms PD1 and the plaintiff’s father separated. In about 1991 or 1992 Ms PD1 and the defendant commenced a relationship, and the defendant moved into the home and took on the role of stepfather to the plaintiff and her brother. Both children called the defendant “Dad”.

8. In 1984 a son (given the pseudonym “Mr PS2”) was born. Mr PS2 suffered from cerebral palsy and was significantly disabled. In about 1997 or early 1998 the family moved to a property owned by the defendant in a suburb of Port Stephens (to which I will refer as the Port Stephens property).

9. On four occasions between 2000 and 2001, when the plaintiff was 15, the defendant sexually assaulted her. As a consequence of one of those events, the plaintiff became pregnant. She did not disclose the pregnancy to her mother until it was exposed in a medical examination. She then told her mother, untruthfully, that the pregnancy was the result of an encounter with a boy at a party. Ms PD1, the defendant and the plaintiff continued to live in the Port Stephens property with Mr PS1 and Mr PS2.

10. In August 2001, shortly before the plaintiff was due to give birth, Ms PD1 discovered a diary that the plaintiff had kept. The diary revealed that the defendant was the father of the child the plaintiff was expecting. A confrontation took place between Ms PD1, the plaintiff and the defendant. The defendant took the plaintiff in his car to Port Macquarie where they booked into a motel. (The plaintiff alleges that the defendant again sexually assaulted her in the motel room but that allegation is denied and will be dealt with below.) The plaintiff went into labour and the defendant drove her to the Port Macquarie Hospital. A son (given the pseudonym “Mr DS”) was born on 28 August 2001.

11. When completing the necessary paperwork for the registration of Mr DS’s birth, the plaintiff stated (falsely) that the identity of the father was unknown.

12. The plaintiff and the defendant, together with Mr DS, returned to the Port Stephens property. Ms PD1 had vacated the property, with Mr PS1 and Mr PS2, taking most of the furniture that had been in the home. After some weeks, Ms PD1, with Mr PS1 and Mr PS2, returned to the home. Ms PD1 and the defendant resumed their relationship. A few weeks later, she again left the house, with Mr PS1 and Mr PS2.

13. Thereafter, for the next 11 years, the plaintiff, the defendant and Mr DS lived in the Port Stephens property, the plaintiff and the defendant in a non-sexual relationship. The nature of the relationship is controversial and is relevant to the plaintiff’s claim for damages, particularly in relation to the second cause of action pleaded (intentional infliction of physical and psychiatric injury). In 2012, in circumstances the subject of dispute, the plaintiff and Mr DS moved out of the Port Stephens property.

14. In 2015 the plaintiff reported the defendant’s sexual assaults to police. Prior to doing so, she prepared, in handwriting, a lengthy account detailing her relationship with her mother and the defendant over the years. That account is undated. On 28 July 2015 investigating police took a further statement, in which the plaintiff gave an account of various sexual offences she said had been committed on her by the defendant. Included in this statement were an allegation of a sexual assault in 1995 or 1996, when she was 10 or 11 from, (of which she said she had complained to her mother), allegations of sexual assaults in 2000 and 2001, an allegation of another sexual assault in 2001 in the Port Macquarie motel room and an allegation of a later sexual assault when she, and the defendant and Mr DS returned to Port Stephens.

15. The defendant was charged with and pleaded guilty to three offences - an offence of aggravated sexual assault, contrary to s 61J of the Crimes Act 1900 (NSW), and two offences of sexual intercourse with a child between 10 and 16 years of age, contrary to s 66C of the Crimes Act. Pursuant to Part 3 Division 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) he admitted his guilt to a further offence against s 66C. All of these offences were committed between 2000 and 2001, when the plaintiff was 15 years of age. The defendant was not charged with the sexual assault the plaintiff alleged had been committed in 1995 or 1996.

16. Following the defendant’s pleas of guilty, an agreed statement of facts was prepared for sentencing purposes. The defendant signed this statement. He was sentenced to imprisonment for 7 years and 6 months, with a non-parole period of 4 years and 6 months, a sentence he is still serving.

The present proceedings

17. On 29 November 2017 the plaintiff commenced the present proceedings. As indicated above, the defendant does not dispute that, on the four separate occasions in 2000-2001 the subject of the criminal proceedings, he committed sexual offences against the plaintiff. Moreover, he accepts that he is liable to an award of damages against him in respect of those offences.

18. However, the plaintiff also asserts that on three other occasions the defendant sexually assaulted her, and that, on a further occasion (in 2012), he physically (but not sexually) assaulted her. Put shortly, the plaintiff alleges:

1. that, in about 1995 or 1996, when she was 10 or 11 years old, and while the family was living in the Newcastle suburb, the defendant sexually assaulted her;

2. that, on 27 August 2001, when she and the defendant were in the motel room at Port Macquarie having left the Port Stephens premises, and immediately prior to the birth of Mr DS, the defendant again sexually assaulted her;

3. that, in 2001, shortly after their return to the Port Stephens property following the birth of Mr DS, the defendant again sexually assaulted her; and

4. that, in 2012, at the Port Stephens property and immediately before her departure from that property, the defendant physically (but not sexually) assaulted her.

19. These allegations were not the subject of criminal charges or admission and are denied by the defendant. It will therefore be necessary to determine if any and, if any, which, of the additional allegations have been proved. It is not suggested that any witness observed any of the incidents alleged. The evidence is solely that of the plaintiff on the one hand and the defendant on the other.

20. In that context it is appropriate to record my general impression of the evidence given by each of the parties. To my observation the plaintiff gave her evidence in a straightforward fashion. Under cross-examination she made appropriate concessions. There was no appearance of exaggeration.

21. I found the defendant a less impressive witness. He acknowledged, as he had to, the four incidents of sexual assault which he had previously admitted. On occasion, he denied the detail of those assaults until faced with the agreed statement of facts that bore out the proposition put in cross-examination. At times he was evasive, appearing to be reluctant to acknowledge even those assaults which he had admitted. For example, when questioned about one of the offences, he answered:

“That’s what I’ve been charged with, yes”. (T180/27)

Only when it was put to him, again, did he acknowledge that he had in fact done what he was accused of. The defendant accepted that he was “not proud” of his conduct. The impression I formed was that he was reluctant to confront his conduct towards the plaintiff and reluctant to come to grips with what he had done. To the extent that he admitted the plaintiff’s allegations, he was bound to do so by his pleas of guilty in the criminal proceedings; in turn, those pleas were made inevitable by the birth of Mr DS. I have no confidence that the defendant’s denials of the additional assaults were based on anything other than either refusal to acknowledge, any more than he had to, his conduct, or a determination to limit the extent of the damages he accepts he will have to pay, or both.

22. With those assessments in mind, I turn to the four disputed allegations. On behalf of the defendant it was argued that I should approach the determination applying the standard of proof commonly known as “the Briginshaw standard” (Briginshaw v Briginshaw (1938) 60 CLR 336; [1998] HCA 34). On behalf of the plaintiff, it was argued that the appropriate standard is that prescribed in s 140 of the Evidence Act 1995 (NSW), that is, the balance of probabilities taking into account the nature of the cause of action or defence, the nature of the subject matter of the proceeding and the gravity of the matters alleged.

23. To the extent (if any) that there is any real distinction between the two tests (see, for example – Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419), I accept the plaintiff’s submissions. The Evidence Act is the legislature’s last word on evidentiary matters, and supersedes common law authority, where any conflict is discernible.

The disputed allegations

(i) the incident alleged to have taken place at Newcastle in 1995 or 1996

24. The plaintiff’s account of the incident she alleged occurred in 1995 or 1996 was given in the first instance in the statement she made to police in July 2015. In an evidentiary statement dated 30 April 2018 made for the purpose of these proceedings, she repeated the account she had there given. She said that she and the defendant were lying on a couch in the living room watching television and that she fell asleep. She said that she woke “to a strange feeling”. She opened her eyes and found that the defendant had put his hands down the front of her pyjama pants inside her underwear and was rubbing her vagina. She said that she had no idea what was going on and that she froze, unable to move, not knowing how to respond. She said that she could not recall how long this continued and she could not see the defendant’s face and that she rolled sideways. She said that the defendant ceased the activity, removed his hand and lay on the couch.

25. The plaintiff said that she did not say anything, but recalled “feeling a mix of fear and confusion” (CB 260). She left the couch and went to bed. She said that she then went to her mother’s room and told her mother what had happened. She said that her mother immediately confronted the defendant who said:

“I have been drinking. I thought it was you.”

26. She said that her mother told the defendant to apologise, which he did, repeating that he thought it was Ms PD1 whom he had touched. She said that the incident was no further discussed.

27. Both in his filed defence and in his evidence the defendant denied that any such incident had ever occurred. In cross-examination of the plaintiff only a limited challenge was made to the reliability of her evidence. It was pointed out that, in her initial hand-written statement, made prior to her report to police, she had made no mention of this allegation, and it was put to her that her memory of what had happened nineteen or twenty years earlier was “not good”. She refuted that, saying that her memory:

“Is very clear of what happened.” (T 35)

28. Cross-examination of the defendant with respect to this allegation was more sustained and he maintained his denial. He agreed that by the time the plaintiff was 15, he had developed a strong sexual interest in her, but said that that occurred at some point immediately before the first admitted incident, when the plaintiff was 15. He rejected a proposition that his earlier conduct towards the plaintiff demonstrated apparent favouritism and was different to his conduct towards Mr PS1 (T 176).

29. In October 2015, after the plaintiff had reported the assaults to police, her mother, Ms PD1, made a lengthy statement to police. In it, she gave a detailed account of events from the time she and the defendant established their relationship. She made particular mention of what she perceived as the defendant’s affection for and favouritism towards the plaintiff to the exclusion of her brother, Mr PS1. She recounted how the plaintiff was found to be pregnant, and the family discussions that followed. These included an assertion that the defendant insisted on termination of the pregnancy, something Ms PD1 said the plaintiff rejected (and the defendant denies). She recounted her discovery of the plaintiff’s diary, and her realisation that the defendant was the father of the child. There was much more in the statement which it is unnecessary here to repeat. What is notable for present purposes is that there is no mention of an occasion in 1995 or 1996 when the plaintiff told her that the defendant had sexually assaulted her while she was asleep, or of the confrontation that the plaintiff claimed followed.

28. Unsurprisingly, counsel for the defendant made much of this omission in his submissions with respect to the 1995-1996 allegation. It is undeniably a factor to be taken into account in the assessment of the veracity of the allegation.

29. Notwithstanding the force of the submission made on behalf of the defendant I have concluded that the omission from Ms PD1’s statement of any mention of this alleged event is not sufficient to cause me to doubt the plaintiff’s account.

30. The plaintiff’s statement to police, in which she clearly recorded the incident, was taken on 28 July 2015. Ms PD1’s statement was taken by a different police officer over a number of days from 20 October 2015. The statement, it is fair to say, is unfocused, and is certainly not directed clearly towards exploring or confirming the plaintiff’s allegations. There is little, if anything, in the statement to indicate that the police officer was dealing with the detail of the plaintiff’s statement when taking the statement from Ms PD1. I infer from the content of Ms PD1’s statement that the interviewing police officer did not ask her about the detail of the allegations and that explains why she did not corroborate (or not corroborate) the plaintiff’s account. Had there been such questioning I would have expected it to have been recorded in the statement.

31. It is also to be noted, that, although the incident was clearly described in the plaintiff’s police statement, no charge in respect of that incident was laid, suggesting that it was overlooked.

32. Ms PD1 was called to give evidence in the plaintiff’s case. All she did was confirm the contents of her police statement, and deny one part of the defendant’s statement. She was not cross-examined. Neither counsel asked about the plaintiff’s claim that she had told her mother of the incident she alleged occurred in 1995 or 1996.

33. In the end, I determine this issue on my assessment of the two individuals involved, the plaintiff and the defendant.

34. The plaintiff’s responses to cross-examination were convincing. I do not find that the omission from her handwritten statement of any mention of this event casts any doubt on the plaintiff’s evidence. Although the statement records a sexual assault when the plaintiff was 15, and the incident of oral sex at about the same time, it is largely directed to events surrounding and after the birth of Mr DS, and relationships within the family.

35. The defendant’s responses in cross-examination were less convincing. As I have noted above, the impression I gained from his evidence overall was that he accepted that he had no option but to admit liability for those offences to which he had pleaded guilty, but that he would resist liability for any conduct outside those parameters.

36. On the evidence I am satisfied that the sexual assault that the plaintiff alleged was committed in or about 1995 was in fact committed.

(ii) the incident alleged to have taken place at Port Macquarie on 27 August 2001.

39. The plaintiff alleged that this incident occurred in the Port Macquarie motel room after she and the defendant had left the Port Stephens property following Ms PD1’s discovery of the paternity of the plaintiff’s expected baby. It will be recalled that the plaintiff was, at the time, heavily pregnant and, in fact, gave birth early the following morning. The plaintiff said that, after they booked into the motel room, the defendant left to purchase a takeaway meal and that, when he returned, he pulled down her pyjama pants and inserted his penis, which was erect, into her vagina. She said that she was numb and did not respond.

40. In his evidentiary statement, the defendant denied any attempt to have sex with the plaintiff at the motel. In oral evidence he confirmed that denial, and said that both parties were fully clothed and that, in the circumstances in which they had left Port Stephens, they had taken no other clothing with them.

41. Cross-examination on this allegation focused on the plaintiff’s evidence that the defendant pulled down her pyjama pants before sexually assaulting her. It is necessary, to an extent, to expand on the account given by the plaintiff of the circumstances in which she and the defendant travelled to Port Macquarie.

42. In her evidentiary statement the plaintiff recounted that after her mother, Ms PD1, had found the plaintiff’s diary from which she learned that the defendant was the father of the plaintiff’s child a confrontation took place during at least part of which the defendant’s sister was present. Ms PD1 physically and verbally attacked both the plaintiff and the defendant. The defendant then told the plaintiff that they were leaving and “ushered [her] out the door and into the car”. They drove to Port Macquarie and checked into the motel.

43. From that description of events it may easily be inferred that the plaintiff had no opportunity to prepare herself for the departure by packing a bag. In cross-examination she confirmed that, so far as she could recall, she had no luggage with her. She was asked specifically whether she had pyjamas with her, to which she replied:

“I was just wearing what I was wearing there the same day. I can’t recall exactly what I was wearing.” T/47-49

44. This evidence makes it unlikely that the plaintiff’s evidence that the defendant pulled down her pyjama pants is reliable. The question, however, is whether that anomaly casts doubt on the central allegation of non-consensual intercourse.

45. In response to a direct proposition that there was no sexual intercourse between her and the defendant in her advanced state of pregnancy, she replied simply:

“There was.” (T 48-36)

In response to another, similar, question she said:

“It did take place.” (T49-33)

46. As indicated above, I found the plaintiff to be a persuasive witness. I accept that her evidence that the defendant pulled down pyjama pants is unlikely to be correct, but I nevertheless accept that the act of intercourse took place otherwise as alleged by the plaintiff.

(iii)   the incident alleged to have taken place at the Port Stephens property after the birth of Mr DS.

47. The third contested allegation relates to events that the plaintiff said occurred shortly after she and the defendant returned, with the new-born baby, to the Port Stephens property, before the return of Ms PD1. The plaintiff said that she was asleep on a fold-out bed, with the baby beside her, and that the defendant “climbed” into the bed, removed her underwear and his, and attempted to insert his penis into her vagina. The plaintiff said that she told him that her vagina was hurting because of stitches that had been inserted after the birth, but that the defendant persisted.

48. The defendant denied that this incident occurred. In evidence in chief he said that on their return “there was next to nothing” in the house except for the fold-out bed (T157/15). In cross-examination, he disclosed that there “probably” was another bed in the house, in the room previously occupied by himself and Ms PD1. He said that he continued to share the fold-out bed with the plaintiff because that was what she wanted (T199/27). No such proposition was put to the plaintiff, and the defendant said that he had never before told that to anybody because it had not come up in conversation.

49. As with the two previous disputed allegations, I accept the plaintiff’s evidence that this event occurred. The defendant’s evidence that he slept with the plaintiff, despite the “probable” availability of another bed, because that was what she wanted, seems to me to be unlikely and something he fabricated while under cross-examination. On the whole, the evidence persuades me that the defendant continued to be sexually attracted to the plaintiff, and that, on the occasion in question, he acted on that attraction.

50. The plaintiff said that this was the last time she was sexually assaulted by the defendant. There was, however, a further occasion on which she alleged that she was physically assaulted by him.

(iv)   the 2012 alleged physical assault

51. The final allegation relates to events the plaintiff said took place in 2012, at a time when she and Mr DS were living with the defendant in the Port Stephens property. Neither the statement of claim nor the evidence establishes any more precise date. She has given some evidence of a somewhat toxic relationship between them, and of what she described as controlling and abusive behaviour by the defendant. It will be necessary to return to this. By 2012, the plaintiff had begun having social encounters with young men. She said that, on the night in question, she was in bed when the defendant returned home intoxicated. Mr DS (who by then would have been about 10 or 11) was staying with an aunt.

52. In her evidentiary statement the plaintiff gave a detailed account of the events that immediately preceded her departure from the Port Stephens property. She said that the defendant entered her bedroom where she was sleeping, took her by the ankle, and dragged her from the bed, shouting abuse at her. She said that she told him to go away and went back to bed and that he again pulled her from the bed and told her:

“Get your shit and get out”.

She said that she left and went to a relative’s home, although she subsequently returned to the Port Stephens property for a time. She said that as a result she suffered a bruise to her buttocks.

53. The defendant denied that this incident occurred as described. He conceded, however, that he “could have” told the plaintiff to “get your shit and get out”.

54. The plaintiff’s evidence of this event was not the subject of cross-examination. Nor did the defendant mention it in his evidentiary statement. In his oral evidence he gave a different account. He said that Mr DS was staying at a friend’s house and that he (the defendant) was going to a local hotel for a drink. He said that the plaintiff offered to drop him at the hotel and did so at about 7 pm prior to going out on a “dinner date”. He said that later (presumably after some time at the hotel) he attempted to contact the plaintiff so that she could pick him up, but that he was unable to reach her, and he walked home.

55. At this point objection was taken to the evidence (T178) on the basis that no challenge had been made in cross-examination to the plaintiff’s evidence. None of what the defendant said had been put to the plaintiff. Given the potential importance of the evidence to the defendant’s case I allowed the evidence on a provisional basis, its admission to be later considered.

56. The defendant then said that when he arrived home he knocked on the plaintiff’s door, and the plaintiff apologised to him saying that she had not received his message. He said that heated words were exchanged and:

“…I turned around that we should bloody turn around and try and just settle things down, turn around tomorrow, go through what the issues were and actually try and resolve them, but I’d had – just had enough, I said, ‘grab a couple of things and you’re out’.” (T 172/40)

He conceded that he might have said “get your shit and get out”, as alleged by the plaintiff, and said that within 10 minutes the plaintiff was gone from the home.

57. On behalf of the plaintiff it was argued that the evidence provisionally admitted should be excluded from consideration. There is much to be said for the proposition that to take the defendant’s evidence into account could be unfair to the plaintiff, in circumstances where she had not been given the opportunity in cross-examination to rebut what the defendant said. However, it is potentially an important part of the defendant’s case in respect of this allegation, and, notwithstanding some potential unfairness to the plaintiff, I am not prepared to exclude it.

58. Nevertheless, the evidence overall does not persuade me that I should reject the plaintiff’s account of this incident. On both versions, there was a hostile event in the plaintiff’s bedroom that night. On the defendant’s evidence, he had been drinking (the extent, if any, to which he was intoxicated cannot be determined) and he was, at least, out of sorts at what he perceived to be the plaintiff’s failure to comply with what he seemed to think was her agreement to pick him up from the hotel (although, it may be noted, his evidence was limited to an offer by the plaintiff to take him to the hotel). And he accepted that he may have used words to the effect “get your shit out of here”.

59. I have concluded that the plaintiff’s version of the events is more likely to be accurate. I find the physical assault proved.

Tendency Evidence

60. As will be apparent, I have reached my conclusion with respect to the disputed allegations of assault on an assessment of the evidence given by the plaintiff and the defendant and consideration of the limited amount of additional evidence there is. However, in aid of proof of those allegations, the plaintiff proposed to rely on the four incidents of which the defendant admitted his guilt as tendency and coincidence evidence under ss 97 and 98 respectively of the Evidence Act 1995 (NSW), and gave appropriate notices to that effect. (The s 98 notice was not pursued with any degree of vigour and can be put to one side.) It is necessary, however, to consider the basis on which the plaintiff seeks to rely on tendency evidence.

61. Section 97 of the Evidence Act that 97(1) provides:

“(1)  Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless:

(a)  the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence, and

(b)  the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.”

62. Since the causes of action in assault and battery depended in part on each of the four admitted sexual assaults, evidence of those assaults was, axiomatically, admissible in general terms. But the plaintiff sought to use that evidence for the additional purpose for which s 97 provides – to prove that the defendant had a tendency to act or think in a particular way. Proof of such a tendency is capable of being used as the foundation for an inference that the defendant conducted himself on the disputed occasions as alleged by the plaintiff. In Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51; [2000] FCA 1886, Sackville J (with whom Whitlam and Mansfield JJ agreed) characterised s 97 as “a contingent exclusionary rule”. The “contingencies” are (i) whether appropriate notice has been given, and (ii) the assessment of the significance of any probative value of the evidence. If appropriate notice has not been given, or the assessment is that the evidence does not have significant probative value, the evidence must be excluded.

63. Given that, as Sackville J explained, the Evidence Act proceeds on the foundation that evidence that is relevant (as defined by s 55) is, subject to any specific exclusionary provisions, admissible, (s 56(1)), and that evidence that is not relevant is not admissible (s 56(2)), I respectfully agree with his Honour’s characterisation of s 97 as a “contingent exclusionary rule”. However, the practical effect of s 97 is to render admissible evidence of the character, reputation or conduct of a person or a tendency that that person has in order to prove that, on a relevant occasion, the person acted or thought in a particular way, provided that appropriate notice has been given and the evidence is assessed to have significant probative value. There was no issue that appropriate notice had been given. To render the evidence admissible (for the purposes of s 97) it was necessary that the plaintiff establish that it had significant probative value.

64. The tendency evidence notice served on behalf of the plaintiff was detailed. In short, it indicated that the plaintiff proposed to rely on the evidence concerning the admitted sexual assaults and the circumstances in which they were committed to establish that the defendant had a sexual interest in the plaintiff, and a tendency to act on that sexual interest by sexually (and/or physically) assaulting her, to force himself upon her, to abuse her emotionally, to treat her in a physically and emotionally abusive manner, and to engage in sexual intercourse with her notwithstanding that he knew that she did not consent to the sexual intercourse, and that she was, in any event, legally incapable of giving consent.

The circumstances of the undisputed assaults.

65. In order to assess the probative value of the evidence of the admitted sexual assaults it is necessary to have regard to the circumstances and the nature of those assaults. That may be drawn from the agreed statement of facts in the criminal proceedings and may be stated briefly. Two of the assaults took place when the plaintiff was lying on the fold-out sofa bed in the living room in the Port Stephens property watching television. On each occasion, while the plaintiff was asleep, the defendant pulled down her pyjama pants and inserted, or attempted to insert, his penis into her vagina. A third incident occurred when, again, the plaintiff and the defendant were watching television. The defendant raised the subject of oral sex, exposed his penis which was erect, pushed the plaintiff’s head towards it and told her to suck on it. The fourth incident took place when the plaintiff and the defendant were at home alone and the defendant told the plaintiff to lie down on some pillows, following which he had sexual intercourse with her.

66. It will be seen that there were significant similarities between the sexual assaults to which the defendant pleaded guilty and those the subject of dispute. Were it necessary to have recourse to the tendency evidence, I would conclude that its probative value is significant. It demonstrates clearly that, at least from 2000, the defendant had an ongoing sexual interest in the plaintiff, that he acted on that interest and that he did so in a fashion that did not involve the willing participation of the plaintiff, nor any attempt by him to ascertain her willingness to participate. Rather, his conduct was forceful and self-assertive, with no regard to the wishes of the plaintiff, and would, even if she had been above the age of consent, have constituted the offence of sexual intercourse without consent.

67. That characterisation applies equally to the plaintiff’s description of the three additional, disputed, allegations of sexual assault. The evidence of the four admitted instances of sexual assault is significantly probative of the plaintiff’s account of the disputed sexual assaults.

68. I accept that the tendency evidence has less weight in relation to the earlier (1995-1996) allegation but, if I were in doubt about that allegation (I am not) I would infer that the defendant’s interest in the plaintiff at least began to emerge well before 2001. The tendency evidence gives substantial support to the later allegations, and some support to the earlier. There is no tendency evidence to support the 2012 physical violence allegation but, even without tendency evidence, I am satisfied that it occurred.

69. The plaintiff’s tendency evidence notice made no mention of the evidence of Ms PD1 concerning what she perceived as favouritism shown by the defendant to the plaintiff as a young child, and I have considered it appropriate to exclude that evidence from consideration in this respect. The consequence of my factual conclusions is that, subject to remaining matters, the defendant is liable to the plaintiff in respect of eight individual tortious acts, and the damage that flows therefrom.

70. I turn now to the “related abuse” claim, also referred to as the “Wilkinson v Downton” claim.

The “Wilkinson v Downton” claim

71. In Wilkinson v Downton the defendant, by way of a practical joke, falsely told the plaintiff that her husband had been seriously injured and was in hospital. As a result the plaintiff suffered severe nervous shock. The trial judge (Wright J) found that the defendant:

“has … wilfully done an act calculated to cause physical harm to the plaintiff – that is to say, to infringe her right to personal safety, and has in fact caused physical harm to her”,

and that the harm was actionable.

72. He then identified two questions:

“… whether the defendant’s act was so plainly calculated to produce some effect of the kind which was produced that an intention to produce it ought to be imputed to the defendant …” and

“…whether the effect [of the conduct] was … too remote to be in law regarded as a consequence for which the defendant is answerable.”

73. The decision in Wilkinson v Downton has been recognised by the High Court of Australia on at least three occasions, although without further discussion or elaboration: Bunyan v Jordan (1937) 57 CLR 1; [1937] HCA 5; Northern Territory v Mengel (1995) 185 CLR 307; [1995] HCA 65; Magill (2006) 226 CLR 551; [2006] HCA 51.

74. There appears to be no clear definition of what constitutes the tort. “Physical harm” may be taken to include psychological or psychiatric harm, provided that the plaintiff be shown to have suffered a recognised psychiatric illness: Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35. Mere emotional distress is insufficient. It will therefore be necessary, in due course, to consider the evidence adduced in that respect.

75. The tort was discussed by Spigelman CJ in Nationwide New Pty Ltd v Naidu (2008) 71 NSWLR 471; [2007] NSWCA 377. The issue that has attracted most attention is the meaning to be attributed to the word “calculated” as used by Wright J in Wilkinson v Downton, with reference to the conduct the subject of the pleading: see, for example, Carrier v Bonham [2002] 1 Qd R 474; [2001] QCA 234. In that case McPherson JA considered that the word signified not a subjective intention (to cause damage) on the part of the defendant, but “objectively likely to happen”; McMurdo P thought that it means “likely to have that effect”.

76. In Naidu (at [80]) Spigelman CJ found it unnecessary to decide if the McMurdo formulation was correct, and considered that it would be sufficient “if the result satisfied a test of ‘substantial certainty’”. So also would a test of reckless indifference satisfy the requirement of intention. In relation to intentional torts generally, consequential damage may be recovered where the head of damage claimed “is a natural and probable result” of the conduct complained of.

77. In Dickens v State of NSW [2017] NSWSC 1173 Fagan J interpreted the relevant passage in Naidu in the following way:

“38. I understand the dicta of Spigelman CJ at [80] to mean that, if liability for the tort depends upon proof of a state of mind in the defendant going beyond the requirement that his or her acts be of a nature inherently likely to cause harm, then it will be sufficient if either the defendant intended harm of the nature actually caused or the relevant acts were done with reckless indifference to whether such harm might result, in circumstances where they were objectively calculated to cause harm.”

I see no reason to depart from that approach.

78. It is necessary now to consider the evidence relied upon by the plaintiff to support the claim.

The evidence

79. In support of her claim under this cause of action the plaintiff relied on each of the sexual assaults and the physical assault. She also relied on what was described in the statement of claim as “the related abuse”. These allegations are less clear cut.

80. In her evidentiary statement the plaintiff gave a detailed account of life in the Port Stephens property after her mother left for the last time. She said that she was in fear of leaving the house, had a very young baby and had very little capacity to go anywhere or do anything because the baby was completely dependent upon her. She said that on one occasion in late 2001 the defendant told her that she needed to contribute financially to the household and drove her to a Centrelink office where he told her to state on the application form that Mr DS’s father was unknown. During her interview, she said, the defendant sat with her, and she did not feel able to tell the truth about the baby’s paternity. This incident was specifically relied upon as an instance of intentional conduct causing harm. Thereafter, the plaintiff said, she and the defendant shared the household expenses. From time to time the defendant gave her money towards Christmas, Easter and birthday presents. She did the housework.

81. She said that the defendant paid the mortgage and that she was in receipt of Centrelink payments from which she contributed to the household expenses. She said that the relationship was “akin to one of housemates” and that she performed most of the household cleaning and maintenance tasks; that she was severely depressed and turned to alcohol and drugs to escape what she described as “a very oppressive environment” in the home.

82. She said that the defendant often followed her around the house, abusing and criticising her. She said that on one occasion the defendant threatened to shoot her dog and that when she returned to the home the dog was missing. She said that she had no doubt that the defendant had shot and killed her dog. No objection was taken to this evidence.

83. She said that she “always felt intimated” by the defendant. She said that, during the years that they shared the house, the defendant:

“117.   ... would often follow me around the house and badger me, abusing and belittling me and saying things like:

‘You’re just like your mother’,

‘[Mr DS] doesn’t even want you’,

‘You’re a whore’,

‘You’re a slut’,

‘Get your shit together and get out of my house’,

‘You’re friends are no good sluts, just like you’.”

84. She said that there were numerous other insults and the abuse was constant. On occasions, she said, the defendant told her that her mother wanted him to “kick you out” so that she [Ms PD1] could move back in and for the baby to stay in the house.

85. This conduct, also, was relied on as evidencing the intentional causing of psychiatric injury.

86. In his evidentiary statement, the defendant agreed that he had driven the plaintiff to a Centrelink office, but denied having given her any instructions about what to say in the interview. (The plaintiff was not cross-examined about her evidence in this respect). The defendant made no response to her allegations of abusive and controlling behaviour.

87. Cross-examination of the plaintiff on this subject was directed towards establishing that the plaintiff and the defendant and Mr DS lived together in a harmonious and happy ménage. To support this proposition the plaintiff was confronted with a number of cards and letters that she had sent to the defendant, all in affectionate and even loving terms. She was shown photographs of holidays, outings and excursions the three had had as a family.

88. The plaintiff did not shrink from this evidence. She said that “there were good times”.

89. A forensic psychiatrist, Dr Stephen Allnutt, assessed the plaintiff on 17 November 2017 and reported on 4 February 2018. Dr Allnutt considered that the plaintiff does suffer from a recognised psychiatric disorder, which he identified in a variety of ways. These included persisting depressive disorder (dysthymia), post-traumatic stress disorder, and episodes of major depressive disorder. Alternatively, he diagnosed post-traumatic stress disorder with associated depression. He also diagnosed female sexual arousal disorder and female orgasmic disorder. He considered that the plaintiff had a history of substance abuse disorder currently in remission.

90. Dr Allnutt said that the behaviour of the plaintiff in joining in apparent family events was not unusual, and did not contradict the plaintiff’s account of the tensions and disharmony within the relationship.

91. Thus, on the one hand, the plaintiff gave a detailed account of what may fairly be described as emotional abuse and controlling behaviour on the part of the defendant. On the other hand, the defendant produced documentary and photographic evidence that, on its face, was capable of telling a different story.

Conclusions on the Wilkinson v Downton claim

92. There is no doubt in my mind that each sexual assault on the plaintiff was calculated (in the sense used in Wilkinson v Downtown and considered above) to cause damage to the plaintiff. Given that the plaintiff was 10 or 11 years of age at the time of the first sexual assault, 15 at the time of four such assaults, and became pregnant as a result, no other conclusion could reasonably be reached.

93. That there were tensions and conflict in the relationship after the sexual assaults ceased gains some support from the defendant’s own evidence of what happened in the confrontation in 2012, when, he said, he told the plaintiff that they should:

“try and just settle things down … go through what the issues were and actually try and resolve them …” (see 56 above).

94. Nor is there any doubt in my mind that the assaults did in fact cause damage of the kind asserted by the plaintiff. That damage was not ameliorated by “the good times”. Nor do the plaintiff’s affectionate letters and cards to the defendant undermine the damage that was done. What the defendant cannot escape is that, at the age of 16, as a result of one of the sexual assaults, the plaintiff gave birth to a baby of which he was the father.

95. I accept (particularly in the absence of any denial by him) that the defendant’s conduct towards the plaintiff was “abusive and controlling”. I am not, however, able to be satisfied that that behaviour rises to a level sufficient to satisfy the Wilkinson v Downton formulation. It is, in any event, unnecessary to do so; the proven acts of sexual and physical assault are sufficient for that purpose. That claim is determined in the plaintiff’s favour by reference to the sexual and physical assaults.

The limitation defence

96. By s 6A of the Limitation Act, no limitation period applies to the causes of action based on child abuse. “Child abuse” includes sexual abuse of a person under the age of 18 years. There is therefore no limitation period in respect of the seven sexual assaults. The only cause of action, potentially subject to a limitation period is the 2012 assault.

97. As indicated above, the defendant also pleaded a limitation defence (under s 14 of the Limitation Act) to the Wilkinson v Downton claim, so far as it arises out of controlling and abusive behaviour. That defence was not pursued. Given my conclusions in [95] above, it does not, in any event, arise.

98. Part 2 Div 6 (in which s 50C appears) of the Limitation Act applies to causes of action that relate to the death of or personal injury to a person, however the claim is based (s 50A), and therefore applies to the 2012 assault.

99. Section 50C creates two limitation periods. A cause of action is not maintainable if brought after the expiration of the first of those limitation periods to expire. The first is a “3 year post discoverability limitation period”; the second is the “12 year long-stop limitation period”. The latter is a period of 12 years from the time of the act or omission alleged to have given rise to the cause of action. That period has not yet expired. The former is a period of 3 years running from and including the date on which the cause of action is “discoverable” by the plaintiff. When a cause of action is “discoverable”, as explained in s 50D, is when the plaintiff knows or ought to know each of 3 facts, those facts being:

• that the injury or death has occurred;

• that the injury or death was caused by the fault of the defendant; and

• in the case of injury, that the injury was sufficiently serious to justify bringing an action.

100. That the s 50C defence is raised in response only to one of the causes of action pleaded by the plaintiff creates some complexity. That cause of action is said to have arisen in 2012. If the defence is to succeed, the defendant must show that the plaintiff knew, more than three years before she commenced these proceedings, (i) that the injury (which may be a psychological or psychiatric condition) was caused by the act of the defendant; (ii) that the injury was caused by the fault of the defendant; and (iii) that the injury so caused was sufficiently serious to justify bringing an action.

101. By subs (2) of s 50D of the Limitation Act, a person ought to know of a fact at a particular time if the fact would have been ascertained by the person had he or she taken all reasonable steps to ascertain the fact. It may be assumed that, before the expiration of the “3 year post discoverability limitation period” in 2015, the plaintiff actually knew the first two facts, that is, that a physical injury (the bruise to her buttock) had occurred, and that that injury was caused by the fault of the defendant.

102. The physical injury attributed by the plaintiff to the 2012 assault was minor – a bruise on her buttocks. On its own it would hardly be said to be sufficiently serious to justify bringing an action. That is not the injury on which the plaintiff sues. The injury on which she sues is the cumulative psychiatric injury, of which the assault was a contributing, but not the dominant, cause. The plaintiff claims that that injury is significant, and certainly sufficient to warrant bringing a cause of action. No argument to the contrary was put.

103. It is simply not possible to separate any of the psychiatric or psychological damage caused to the plaintiff by the 2012 assault, as distinct from the earlier causes of action based on child abuse. It is not to be overlooked that the physical assault took place at night, after the plaintiff was in bed, and that the confrontation of which it was part was followed by the defendant ordering the plaintiff to leave the premises. Nevertheless, no part of the plaintiff’s subsequently diagnosed condition can be attributed to that assault as distinct from the sexual assaults.

104. The onus of establishing a defence under the Limitation Act lies on the defendant. The defendant has not established that, by 2015, the plaintiff knew or ought to have known that any psychological or psychiatric injury caused by the 2012 physical assault was sufficiently serious to warrant bringing an action. Indeed, it may be doubted that, alone, it was sufficiently serious for that purpose.

105. Section 50C is ill-suited to cases where cumulative injury, resulting from sequential acts, is alleged. The parties agreed, sensibly, that an award of damages (it must be recalled, it was common ground that the plaintiff was entitled to an award of damages in respect of the four admitted instances of sexual assault) should be global, in relation to all proven causes of action. I do not propose to take more time on the s 50C defence. The assault the subject of that defence could make only a minimal difference in the quantification of the overall damages to which she is entitled, if such quantification could ever be made.

106. The defence based on s 50C of the Limitation Act fails.

Damages

107. Both parties proceeded on the basis that damages are to be assessed at common law. By s 3B of the Civil Liability Act 2002 (NSW), the provisions of that Act do not apply to or with respect to civil liability and awards of damages for:

(i)   an intentional act done by the defendant with intent to cause injury or death; or

(ii)   sexual assault or other sexual misconduct by the defendant.

with some exceptions which are presently irrelevant.

108. All of the torts committed by the defendant come within one or the other of these exceptions. That is undoubtedly so with respect to the sexual assaults. However, it was also submitted that the physical assault, having regard to its intentional nature, is excluded from the operation of the Civil Liability Act. Section 3B(1) is explicit in excluding the application of the Civil Liability Act to “intentional act[s]” done “with intent to cause injury”. That is, before the exclusion operates, there must be an intention to do the act alleged, and an intention that that act will cause injury or death. The discussion in the Wilkinson v Downton cases draws a distinction, as does s 3B(1)(a), between the intention to do the act, and the intention to cause harm. In my opinion the exclusion does not operate unless both of those intentions are established.

109. It is quite clear that the defendant intended to do the act that constituted the physical assault. It was also clear to my mind that physical injury was the likely result of that act. I also accept that the defendant had a subjective intention to cause physical harm to the plaintiff, even though that may have been relatively minor. I further accept that he intended to cause her emotional harm. The Civil Liability Act has no application.

110. Damages are, therefore, at large.

111. The plaintiff was born in June 1985. She will be 35 years of age in June of this year. She has a life expectancy of about 52 years. She claims damages under the following heads:

(i)   General damages (including aggravated damages);

(ii)   Interest on general and aggravated damages;

(iii)   Past and future medical and associated expenses;

(iv)   Past and future economic loss; and

(v)   Exemplary damages.

112. In the context of considering the Wilkinson v Downton claim above, I have referred in some detail to the plaintiff’s account in her evidentiary statement, of her life from the time of the sexual assaults. That bears repetition and expansion in the context of the assessment of damages. The plaintiff spoke of what is best described as a dysfunctional relationship with her mother, who, she said was “aggressive and dismissive towards me most of the time” and who “seemed to resent me” following the discovery of the pregnancy and the paternity of the child. Ms PD1 remained living in the Port Stephens property for only a few weeks after the return of the plaintiff and the defendant and Mr DS, before moving out. The plaintiff now has no contact with her mother and is hostile towards her.

113. She said that after her mother vacated the property she was in fear of leaving the house and had no real contact with the outside world. Her school friends had “abandoned” her. She found it difficult to make new friends. She had little money of her own, certainly until she applied for and received Centrelink payments.

114. She said that she was “severely depressed” and the house was not a healthy place to live and to raise a child. Neither she nor the defendant attended adequately to household tasks. She found the environment in the house “very oppressive” and turned to alcohol and illicit drugs, going out at night, engaging in risky and promiscuous sexual behaviour. She had:

“… a constant feeling of frustration and grief about what had happened to me and for my situation”,

as well as a constant feeling of rage against the defendant and her mother.”

115. She said that between 2001 and 2012:

“I felt like a person who had no identity”.

116. She self-harmed and was indifferent to the outcome.

117. She said that she developed a shopping addiction, purchasing unnecessary items in the hope that these things would “fill a void” and give her a sense of fulfilment.

118. One paragraph of the plaintiff’s evidentiary statement sums up her position:

“119.   Between 2001 and 2012 I felt like a person who had no sense of identity. I was suicidal at times. I felt like a terrible mother. I did things like cutting my wrists, tried to drown myself in the bathtub on a number of occasions and was indifferent as to whether I would hurt myself or not. I never saw a psychologist or a counsellor during this time, I think mostly because I did not see any benefit to it. …”

119. From 2008 the plaintiff had some intermittent employment, in the architectural drafting and design area. She had left school in mid-2001, halfway through Year 10. In about 2004 she returned to TAFE and completed Years 11 and 12 and then began a university degree in engineering, which she did not finish. She said that this was because she could not handle the workload given her commitment to Mr DS, and was depressed and unmotivated to study.

119. Since leaving the Port Stephens property the plaintiff’s position has improved somewhat. She is now in a stable relationship and has a daughter born in 2014, and a son born in 2019. She has difficulties in her sexual relationship. She has fears about her children, and is apprehensive about changing their nappies, being reminded of what the defendant had done to her.

120. She still experiences depression in “waves” and is now seeing a psychologist, and a general practitioner for on-going psychological support and prescription medication.

121. She is now in employment, with a sympathetic employer who permits her, when necessary, to take time off work to manage her emotional condition. She loses pay on these occasions.

122. I have already mentioned Dr Allnutt’s diagnoses, which are consistent with the account given by the plaintiff. These diagnoses were expressly accepted by the defendant.

(i) General damages and aggravated damages

124. The plaintiff is undoubtedly (as is conceded) entitled to an award of general damages calculated on common law principles. Such an award may, in appropriate circumstances, be augmented by a component representing compensation for “injury to feelings, caused by insult, humiliation and the like”: Lamb v Cotogno (1987) 164 CLR1; [1987] HCA 47. Aggravated damages may be awarded to compensate a plaintiff where the wrongful act of the defendant was aggravated by the manner in which the act was done: Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; [1966] HCA 37; Gray v Motor Accidents Commission (1998) 196 CLR 1; [1998] HCA 70.

125. The award of general damages must be substantial. From the age of 10, and certainly from the age of 15, the plaintiff’s life has been deleteriously affected by the defendant’s wrongful conduct. She has experienced serious psychological trauma, undiagnosed and untreated until recently. She has been deprived of the normal incidents of adolescence and young adulthood. At a time when she could have expected to be carefree, enjoying an active social life with friends and gradually maturing, she has taken on the responsibility of caring for a young child, and of, essentially managing a household. The effects on her have been sufficiently significant to cause her to self-harm on a number of occasions and to entertain suicidal ideas. Her education was severely interrupted. She has no relationship with her mother. She was, for many years, deprived of the opportunity of pursuing a career and has, instead, until recently, had only “patchy” employment. She remains dependent upon a sympathetic employer who releases her from work when her psychological condition makes that necessary. That necessity arises by reason of her psychological condition which, I am satisfied, is occasioned by the torts of the defendant.

126. On behalf of the plaintiff it was submitted that “a court could reasonably award in the order of $500,000 for general damages, inclusive of a figure for aggravated damages”. On behalf of the defendant, it was submitted (T235) that “a reasonable figure” for an award of general damages was $100,000, and that no basis for an award of aggravated damages or exemplary damages had been made out. Counsel for the defendant expressly accepted (T227) that damages are to be awarded for the consequences of the defendant’s torts and that, whether those consequences arose out of the four admitted sexual assaults only or those four together with the four disputed incidents, the result would be the same. That is a recognition that the plaintiff’s past and current condition is attributable to the defendant’s conduct. I agree with that submission. However, I am of the view that the proposed figure of $100,000 is wholly inadequate, in 2020, to compensate the plaintiff for the losses I have outlined above. Moreover, I am also satisfied that this is an appropriate case for augmentation of the award of damages by a component representing aggravated damages.

127. The amount I propose to award is made up of compensatory damages together with a component representing aggravated damages. It is not necessary to separate the two components.

128. The figure that I consider appropriate compensation for the plaintiff for the losses she has suffered, together with injury to her feelings, is $275,000.

(ii) Interest

129. The plaintiff claims interest on that part of the award of general damages that is attributable to the past. That calls for an apportionment of the amount awarded. I accept, as was proposed on behalf of the plaintiff, that 70% of the damages should be attributed to the period between 1997 and the date of judgment (2020) (23 years) and 30% to the future. Interest should be calculated at the rate of 2% pa on 70% of $275,000 ($192,500) yielding $88,550.

(iii) Medical and associated expenses

(a)   expenses already incurred

130. Although the plaintiff claims to have incurred expenses and has given evidence that she has consulted a general practitioner from time to time, and a psychologist, the evidence was inadequate to permit quantification of the claim. I decline to make an allowance for past medical expenses in the assessment of damages.

(b)   future expenses

131. Dr Allnutt recommended that the plaintiff undertake psychological treatment on a weekly to fortnightly basis over a period of 1 to 2 years, and psychiatric treatment on a 4-6 weekly basis “until stabilisation” is achieved.

132. The plaintiff’s claim was quantified as:

• continuing psychological treatment over a 1-2 year period, quantified at $10,596;

• continuing psychiatric treatment on a 4-6 weekly basis, for an unspecified time, with intermittent consultations after stabilisation, quantified as $9,200;

• on-going monitoring by a general practitioner, quantified at $8,942;

• medication, quantified at $30,790;

giving a total $59,528.

133. The evidence in support of these claims was scanty, and was limited to the evidence given by Dr Allnutt and some evidence by the plaintiff concerning her medication. Doing the best I can on the limited evidence available, in respect of future medical and associated expenses I allow $40,000.

(iv) Economic loss

Section 71 of the Civil Liability Act

134. On behalf of the defendant it was pleaded, and argued that the damages to be awarded for economic loss must, by reason of s 71 of the Civil Liability Act exclude any component attributed to loss of earnings by the plaintiff while rearing or maintaining Mr DS. For two reasons that contention is rejected.

135. First, as noted above, by s 3B of the Civil Liability Act the provisions of that Act (including s 71) do not apply, as the liability of the defendant is in respect of the sexual abuse of a child. Second, s 71 appears in Part 11, which, by s 70, applies to claims for damages “for the birth of a child”. That phrase is repeated in s 71 itself.

136. These proceedings do not involve a “claim for the birth of a child”. They are proceedings for damages for personal injury arising out of sexual and physical assault. The claim for damages is not limited as contended.

(a)   past

137. As indicated above, the plaintiff has, until very recently, had only intermittent employment. There was little evidence of her actual earnings (limited to her income tax returns from 2020), and only limited evidence of hypothesised possible earnings had she not suffered at the hands of the defendant. In her current employment where she is allowed some time off by reason of her depressive condition, she loses pay.

138. In her evidentiary statement, the plaintiff said that, had she not become pregnant, she would have completed Year 12 and gone on to tertiary study, either TAFE or university, and, once qualified, have sought work. I accept that evidence, but it is insufficiently specific to provide the basis for any firm conclusions.

139. The plaintiff relied on a lengthy and detailed report by a forensic accountant, Mr Mathew Gwynne. I found the report of only limited assistance. Mr Gwynne had not been provided with information concerning the plaintiff’s income prior to 2010 (when she was 25) and proceeded on only two assumed “scenarios” –

(i)   that the plaintiff graduated from university in architecture which would enable her to obtain full time employment in that profession;

(ii)   that the plaintiff obtained a diploma (for example in advanced architecture) from a “tertiary institution” (unspecified) which would qualify her for employment as a draftsperson.

140. He then calculated hypothesised losses by reference to those two scenarios, based on assumed income streams. He calculated the past financial loss on the first scenario as $170,872, and, on the second at $108,955. Each scenario includes loss of superannuation. As counsel for the defendant pointed out, there was no evidence to support the foundational assumptions although counsel did not contest the calculations.

141. The evidence to support a conclusion that, absent the defendant’s torts, the plaintiff would, on the probabilities, have successfully undertaken some form of tertiary studies in the architectural or design field, obtained employment in that profession, and earned income in the range identified, is limited.

142. I am, however, satisfied that the plaintiff has made out a case for loss of income to date, which must be assessed in more general terms. The plaintiff is clearly intelligent and articulate. Her chosen field of endeavour remains in the drafting/design areas. The figures adopted by Mr Gwynne are, at best, a guide to what a successful career might have yielded the plaintiff.

143. I accept that the plaintiff, if not subjected to the torts of the defendant, would have entered the work force, probably in some branch of architecture, design or drafting or a related area. I am satisfied that she would have done so in a professional or semi-professional capacity. On that basis, and using Mr Gwynne’s figures (since they are the only ones available to me) as a rough guide, for past economic loss, and including superannuation, I allow $150,000.

(b)   future

144. Mr Gwynne calculated the plaintiff’s future economic loss on the same two scenarios. He did this on the assumption that she worked in the architecture profession until retirement age of 67 (in June 2052). There appears to have been no allowance for loss of work by reason of illness, maternity or other. The range to which Mr Gwynne came is $170,309 - $384,621.

145. As with past economic loss, I accept that, absent the consequences of the defendant’s conduct, the plaintiff would have obtained and maintained a satisfying and successful career, probably in some form of drafting and design. It is not possible to be more precise.

146. For future economic loss including superannuation I allow $200,000.

(v) Exemplary damages

147. The plaintiff also claims exemplary damages. Such damages, in contrast to aggravated damages, may be awarded to punish the defendant and:

“…to serve one or more of the object of punishment – moral retribution or deterrence.” Uren at p 49, cited in Gray at [6].

148. In Gray, Gleeson CJ, McHugh, Gummow and Hayne JJ said:

“12.   Exemplary damages are awarded rarely. They recognise and punish fault, but not every finding of fault warrants their award. Something more must be found. Although they are awarded rarely, they have been awarded in very different kinds of cases: ranging from abusive governmental power exemplified by Wilkes v Wood [(1763) Lofft1 [1998 ER 489]) and its associated cases, through defamation cases of the kind considered in Uren, to assault cases such as Fontin v Katapodis [(1962) 108 CLR 177]. And the examples could be multiplied.”

149. Their Honours went on to accept that:

“20.   … the remedy is exceptional in the sense that it arises (chiefly, if not exclusively) in cases of conscious wrong doing in contumelious disregard of the plaintiff’s rights. …”

150. The present case fits squarely into those descriptions. The defendant’s “conscious wrongdoing” was done “in contumelious disregard of the plaintiff’s rights”. Nevertheless, an award is discretionary, although, as was discussed in Gray, the principles on which the discretion is to be exercised are far from clear.

151. What is clear is that, the defendant having been punished for the four offences to which he admitted his guilt, he is not to be punished again by an award of exemplary damages in respect of those offences. So much was established by the decision in Gray. That does not preclude such an award in relation to the other three sexual assaults, and the physical assault.

152. I am satisfied that this is an appropriate case in which to award exemplary damages, particularly in relation to the 1995-1996 sexual assault, and the two subsequent so far unpunished sexual assaults.

153. In my opinion an appropriate award of exemplary damages is $100,000.

154. Accordingly, the orders I make are:

1.   Judgment for the plaintiff in the amount of $853,550.

2.   The defendant to pay the plaintiff’s costs of the proceedings.

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Decision last updated: 17 March 2020