ND v AB (No 3)
[2022] ACTSC 197
•3 August 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | ND v AB (No 3) |
Citation: | [2022] ACTSC 197 |
Hearing Dates: | 5 and 6 July 2022 |
DecisionDate: | 3 August 2022 |
Before: | Mossop J |
Decision: | See [98] |
Catchwords: | DAMAGES – PERSONAL INJURY – Where defendant convicted of child sexual abuse of the plaintiff – where default judgment entered against the defendant – damages in relation to assault, negligence and battery and consequent psychological injury – general damages – where absence of clear counterfactual – aggravated damages – aggravation on basis of position of trust and conduct of criminal trial – past and future economic loss – consideration of appropriate basis to calculate economic loss – past and future domestic care – out-of-pocket expenses |
Legislation Cited: | Crimes Act 1900 (ACT), s 56 Limitation Act 1985 (ACT), s 21C |
Cases Cited: | Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2006] FCA 1427; 236 ALR 665 Cribb v Freyberger [1919] WN 22 Watson Specialised Tooling Pty Ltd v Stevens [1991] 1 Qd R 85 |
Texts Cited: | Harold Luntz, Assessment of Damages for Personal Injury and Death (LexisNexis, 5th ed, 2021) |
Parties: | ND ( Plaintiff) AB ( Defendant) |
Representation: | Counsel J Ronald ( Plaintiff) Self-represented ( Defendant) |
| Solicitors Blumers Personal Injury Lawyers ( Plaintiff) Self-represented ( Defendant) | |
File Number: | SC 394 of 2021 |
MOSSOP J:
Introduction
These are proceedings for the assessment of damages for personal injury commenced by a plaintiff known as “ND” (a pseudonym), against a defendant known by the pseudonym “AB”. The parties are identified by pseudonyms pursuant to an order of the court made in chambers by consent of both parties. The order was justified because the proceedings relate to sexual assault of the plaintiff when she was a child and identification of the defendant would identify the plaintiff.
The basis of the personal injury claim is that the defendant, the plaintiff’s maternal uncle, sexually assaulted her when she was young. The defendant was found guilty by a jury on 6 December 2019 and sentenced by Burns J on 20 March 2020 on one count of maintaining a sexual relationship with a young person in relation to ND, contrary to s 56 of the Crimes Act 1900 (ACT): R v KC [2020] ACTSC 94.
The defendant is currently serving a term of imprisonment for his offending against ND and for offending against two other young people.
The plaintiff brought a claim against the defendant in assault, battery and negligence and claimed past and future economic loss, out-of-pocket expenses, past and future domestic assistance and aggravated damages.
Default judgment was entered in favour of the plaintiff by McCallum CJ on 14 April 2022 after the defendant filed no defence to the proceedings: ND v AB (No 2) [2022] ACTSC 100. By failing to enter a defence, the defendant is taken to have admitted the facts pleaded in the Statement of Claim. It is this which forms the basis for the entry of default judgment: Cribb v Freyberger [1919] WN 22 at 22; Lombank Ltd v Cook [1962] 3 All ER 491 at 498; Motor Accidents Insurance Board v Young [2011] TASSC 26; 20 Tas R 89 at [14]. The position is explained by Lee J in Watson Specialised Tooling Pty Ltd v Stevens [1991] 1 Qd R 85 at 93-94 as follows:
The defendant by not appearing or defending is deemed to have admitted the claims against him (and only those claims), but when there is a claim for unliquidated damages, all he is taken to have admitted is his liability for such damages and not the quantum thereof.
(Emphasis in original.)
In Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2006] FCA 1427; 236 ALR 665 this was clarified to make clear that “[i]t is only allegations of fact which can be the subject of admission”: at [44]. It is for the court to determine whether the admitted facts mean that the plaintiff is entitled to the relief sought in the Statement of Claim (but not different relief): Faithfull v Woodley (1889) 43 Ch D 287 at 289.
Thus, by reason of the default judgment, so long as that judgment remains in effect, the defendant is taken to have admitted the facts pleaded in the Statement of Claim which included the following:
(a)between about 1980 and 1981 the plaintiff suffered repeated sexual, physical and emotional abuse perpetrated by the defendant on about a weekly basis;
(b)the assaults usually involved physically forcing the plaintiff to perform oral sex on the defendant often resulting in ejaculation;
(c)during this period the defendant also digitally penetrated the plaintiff by inserting his fingers into her vagina;
(d)the defendant told the plaintiff not to tell anyone about the assaults and said words to the effect of “you’re not to say anything because you are the liar of the family and no one will believe you anyway”.
At the hearing for the purposes of assessment of damages, the plaintiff made an application in proceeding to amend her Statement of Claim to seek aggravated rather than punitive or exemplary damages. The defendant was present at the hearing. There was no opposition to a grant of leave and leave was granted to make that amendment.
Evidence
Oral evidence was given by the plaintiff’s daughter, the plaintiff and Associate Professor Carolyn Quadrio, a consultant psychiatrist.
The plaintiff gave evidence in a manner that reflected some difficulty with precision in the timing of events and chronology. It reflected an honest attempt to recall her history which she had been required to repeat on multiple previous occasions. My impression was that she was, in the context of proceedings, placing some greater prominence upon the consequences of the sexual abuse over other difficulties that she had faced in her life.
Nothing about the manner in which the plaintiff’s daughter gave evidence caused me to doubt the accuracy of that evidence.
There was no material challenge to the evidence of Dr Quadrio. Nothing in her brief oral evidence caused me to doubt her expertise or the reliability of her opinion based upon the history that she was given.
Chronological findings of fact
The plaintiff was born in 1968. She has two siblings who are older than her. She grew up in the suburb of Macquarie in the Australian Capital Territory. The plaintiff’s father was an interstate truck driver who spent substantial portions of the week away. The plaintiff’s mother was a sales assistant.
Her maternal grandparents lived in Ainslie. Her mother had six siblings. One of her maternal aunts and the defendant, her uncle, lived at the Ainslie house.
The plaintiff attended Macquarie Primary School. She was an average student, neither at the top nor the bottom of the class. She liked going to school. She excelled at sport. Largely because of her father’s enthusiasm for it, the family was involved in water‑skiing. They water-skied at Good Hope near Yass, New South Wales. Members of the family subsequently learned to barefoot water-ski. The plaintiff was in the New South Wales barefoot water‑skiing team and competed around Australia starting from the age of nine. In 1980 and 1981 she was the Australian Champion in the “sub-junior girls” category. In 1981 she won three gold medals in the event. At about the age of 16 she was number five or six in the world.
She was also involved in ballroom dancing which she attended weekly in Hackett. At the age of nine, she and her dance partner won a first and second prize at the Australian and New Zealand junior ballroom dancing title. She also played softball.
She often spent time after school at her grandparents’ house, particularly if she was going to dance classes later in the evening. Some of her cousins would be present as would her grandparents and the defendant. Her aunt would also turn up after work.
The sexual assaults by the defendant commenced when the plaintiff was in about Year 5 at about the age of 11. It continued into Year 6.
The first occasion of sexual abuse occurred when her grandmother had asked the defendant to get some wood. The wood was stored behind the shed at the Ainslie house. If necessary, he had to chop it. There was a space between the shed and the fence of the property. The defendant asked the plaintiff if she wanted to play a game of “truth, dare, double dare or command”. He pulled his pants down and forced her to give him oral sex. She did not understand what was going on. He ejaculated in her mouth. He told her not to tell anyone and that she would not be believed because she was the family liar.
The abuse occurred on other occasions in the same place. On some occasions he would put his hands down her pants and “play with [her] vagina” and would feel her breasts. As to how often this occurred, she said it occurred on more than 20 occasions and “could be a weekly event”. Although she initially said that it occurred during Year 5 and also during Year 6, she later said that it ended in the year when the defendant turned 21 which was in 1981. She also stopped going to her grandparents’ house.
She did not tell her parents about the abuse. She thought that by submitting to the sexual abuse she was protecting her cousins because he told her that he was going to “do it to the other cousins”. By her submitting, she thought he might spare the cousins.
The abuse led the plaintiff to lose interest in ballroom dancing and barefoot water-skiing and led her to commence “wagging” school in Year 7 and Year 8. She attended Canberra High School. She described pretending to get dressed and leave for school but then coming back to the house and spending the day in her “dungeon” underneath the house by herself.
She said her parents separated when she was 13 or 14 years old. She described the relationship between her parents as “vicious” prior to their separation. She had little contact with her father after separation although she would telephone him from a public telephone booth. She said that she had a better relationship with her father than her mother, who she held responsible for the sexual abuse.
The plaintiff dropped out of school in Year 9. She got a job at an ice creamery in Belconnen. That job did not last long. She attended work unreliably. She said that she would “do a runner” if people in the shop looked similar to the defendant.
At the time she was working there she was still doing water-skiing. At a training camp near Wisemans Ferry she tried to kill itself by sniffing correction fluid to the point of passing out.
Subsequently she got a temporary job with the Department of Finance doing clerical work. She described it being difficult to be in the office dealing with people. She subsequently worked for the Australian Bureau of Statistics in another temporary clerical position. She described an incident in which she thought someone approaching her was the defendant and she left work and ran home. This resulted in her position being terminated.
She then worked in the Department of Immigration. She was initially temporary and then got a permanent job. In 1987 she made a workers compensation claim relating to repetitive strain injury to her wrist. From some time in 1988 she was off work because of the injury to her wrist. Her first child was born in December 1988. The father, who I will refer to as Mr O, also worked at the Department of Immigration. She married Mr O in 1990. Her mother forced her to invite the defendant to her wedding, something which affected her enjoyment of the event.
She had another son in 1991 and a daughter in 1994. She did not return to work until 2001. She received workers compensation payments up until at least the 1999 financial year.
In 1989 she disclosed the defendant’s sexual abuse to one of her aunts. This led to her disclosing it to her mother a short time later. Her mother asked her not to say anything while her maternal grandmother was alive because of the impact that it would have on her grandmother. At some stage she contacted the Canberra Rape Crisis Centre and found it helpful to talk to someone on the phone who made it clear that she believed the plaintiff. At some stage she told her husband “bits and pieces” about the assault.
In 1998 her daughter who was then aged four was sexually assaulted by the child of a neighbour. This led to that person being prosecuted and pleading guilty. That incident was made worse for the plaintiff by the fact of the plaintiff’s earlier sexual assault and her grief and guilt at having let her child to go to the neighbour’s house. She felt anger at her husband and his sister who had convinced her to allow the child to go to the neighbour’s house. She perceived that this had a long-term effect on her marriage as she felt betrayed by her husband. The marriage was not the same after this incident and she and her husband divorced in late 2003.
In 2001 she did a “nail course” and attempted to start an acrylic nails business from her house. However, this was not successful and she did not continue with it.
She then worked at the Portrait Place photographic studio in Grace Brothers, Belconnen but she found this too difficult because part of the job involved canvassing customers within the store and she could not cope with the interactions.
After that, she was a merchandiser for Cadbury Confectionery. This involved setting up displays and checking stock levels in Woolworths. It was a part‑time job for about three days per week. While she enjoyed the job, she could not cope with it because she “was
always looking over her shoulder for and keeping a lookout for [the defendant]”.
She then worked in a mobile telephone store in the Belconnen mall. This was a full-time position which she held for about 12 months up until the birth of her third son in 2004. She said that she could not cope with face-to-face interactions with people.
Her then husband, Mr O, was not the father of her third son. Following their divorce in late 2003 she moved to Kurrajong in the lower Blue Mountains where she attempted to run a café as well as look after her four children. She had intended to run this business with a friend, but the friend pulled out. The business was unsuccessful after about a period of six months notwithstanding that the plaintiff worked long hours. However, she stayed in Kurrajong for two years. She worked for Woolworths doing store refurbishment, moving stock and building shelves. During that work she damaged her thumb in a way which required operations to reconnect ligaments and tendons within her hand. Those were not completely successful and her thumb does not effectively bend at its base.
Sometime after the incident with her thumb she met her second husband who I will refer to as Mr D. They lived in Glenmore Park in Sydney for about a year. In about 2009 they moved back to Canberra. They stayed initially with the plaintiff’s mother and then in shared accommodation in Fraser. They subsequently moved to Moruya and bought a café business. The two youngest children also moved. The plaintiff described her role in the business as working in the kitchen rather than in customer-facing roles, saying “I hid in the kitchen”.
In 2014 she received payment of compensation arising from the injury to her thumb. The amount she received was $250,000 out of a total judgment of $350,000 inclusive of costs.
In December 2014 the plaintiff and Mr D bought the Bodalla Arms Hotel at Bodalla. Mr D continued on at the coffee shop. They hired a manager for the pub. The plaintiff worked behind the scenes. She got pregnant with twins who were born in 2015 just after they had purchased the pub. Difficulties arose with the pub as a result of noise complaints from neighbours. This led to the conditions of their licence being amended and resulted in the failure of the business in 2018.
The plaintiff had not initially told Mr D the whole story of her sexual abuse. She was embarrassed and feared being perceived as “damaged goods”. She opened up to him after about two years.
After her mother died in 2012 the plaintiff was ostracised by her family for suggesting that her uncle had done something wrong.
The plaintiff gave evidence that at some point after her mother’s death she contemplated suicide, driving from the coast to Canberra to the sewerage treatment facility near Holt and contemplating driving her car over a cliff. However, the thought of her youngest son led her to stop. This evidence was inconsistent with what she had told a counsellor in Mackay, when she described the incident as having occurred in 2007. This inconsistency was not addressed in the evidence, and it is not possible to reach a conclusion as to precisely when this occurred.
She made her first statement to police about the sexual abuse in 2017.
Following the making of a complaint to the police, she described an incident in which the defendant and his sister had driven in a car behind her, from where it had been parked in Bungendore to Braidwood. She said that despite having opportunities to overtake her, the defendant continued to drive his car behind her until they reached Braidwood. The plaintiff was so concerned she attempted to ring the police and then rang her husband who rang the police. She went to the police station in Braidwood and recorded what had occurred. The defendant appeared to admit the incident but denied knowledge that it was the plaintiff in the vehicle. I am not satisfied on the balance of probabilities that the following was done in the knowledge that it was the plaintiff in the vehicle or done with an intention to harass or intimidate her. I am, however, satisfied that the plaintiff was extremely upset by the incident and that reflects upon her mental state arising out of the history of abuse.
She also described an incident shortly after the road incident in which the defendant and his sister sat outside the pub in Bodalla but left when the plaintiff’s husband, Mr D, approached them. The defendant denied ever having been to the Bodalla Pub. In light of the limited evidence of the plaintiff relating to the identification of the defendant I am not satisfied on the balance of probabilities that the defendant was present. However, I accept the plaintiff’s evidence that she thought it was him and take this as reflecting her mental state arising out of the history of abuse.
The failure of the pub business led to both the plaintiff and her husband being bankrupted. They moved to Mackay in Queensland with the youngest three children. She and her husband were struggling. They stayed in a caravan until they obtained rental accommodation. Between February and August 2019 she received some counselling with a counsellor in Mackay. The counsellor formed the view that the plaintiff lives “in a constant state of hypervigilance”.
Mr D obtained work driving wide loads such as trucks and equipment for mines. The plaintiff continued to receive some form of social security payments.
The defendant’s criminal trial took place in December 2019. The plaintiff needed to travel to Canberra in order to give evidence for the purposes of the trial and then in February or March of 2020 for the purposes of the sentencing hearing. She and the children stayed in Canberra and Mr D continued working in Mackay until May 2020 when he came to Canberra.
The plaintiff participated in 10 counselling sessions with a psychologist as a result of support given to victims of crime. She has not had counselling since.
A difficulty arose for the plaintiff because her youngest children were going to the same school which was attended by the defendant’s grandchildren. While she initially made arrangements to drop her children off later and pick them up earlier so as to avoid contact with the defendant’s son, he made comments to her which led her to take the children out of that school and ultimately move them to a new primary school.
The plaintiff takes the antidepressant medication sertraline which she gets from her general practitioner monthly. She has been on the drug for at least five years. She describes herself as not going anywhere. She says she has a tendency to do stupid things when she goes into a panic and as a result, she takes her daughter with her when she goes out. She says that she does not have a social life. Reminders of the abuse upset her.
She had a problem with grinding of her teeth particularly after the road incident. This wore down her teeth the point where she had to have them taken out. She said that she does not wear dentures because they make her gag and this reminds her of the sexual assault. As a result of not wearing dentures, her appearance is such that she perceives that people judge her. She is on a public health waiting list for further dental treatment and cannot afford to have implants which would allow her to have dentures that were fixed in place. As a result, she does not eat solid foods.
As a result of a slip and fall incident at a Woolworths store she has had a hip replacement which has resulted in her having less pain and greater mobility.
The plaintiff’s daughter gave evidence that she visits her mother every day. She takes her mother shopping once or twice a week. She says otherwise her mother does not want to go shopping. She also takes her mother to medical appointments. That requirement was greater in the recent past when she was in need of a hip replacement. It is now less frequent because the hip replacement has occurred and those issues have resolved.
Medical evidence
The plaintiff relied upon the report of Associate Professor Quadrio dated 16 March 2022.
Dr Quadrio interviewed the plaintiff by audiovisual link on 2 December 2021 and had a further follow-up telephone call on 21 February 2022. The report set out in chronological form the history given by the plaintiff. This was largely consistent with the evidence given by the plaintiff and the findings that I have made. The report records that the plaintiff had some counselling in Moruya then in Mackay but had never seen a psychiatrist. She has been prescribed sertraline, a selective serotonin reuptake inhibitor antidepressant by her general practitioner for about nine years. In terms of other medical events, the report records that she has suffered from teeth grinding and two falls in Woolworths resulting in the need for a hip replacement.
Associate Professor Quadrio set out diagnoses for the plaintiff as follows:
Primary diagnosis:
Complex Posttraumatic Stress Disorder (CPTSD)
Comorbidities:
Depressive Disorder, Chronic or Persistent
Anxiety Disorders:
Generalised, Agoraphobic, Social Anxiety & Panic Disorder Enduring (Posttraumatic) Personality change.
The doctor explained the nature of the diagnosis of complex post-traumatic stress disorder (complex PTSD) as involving a combination of typical PTSD plus the symptoms of complex trauma. While typical PTSD is often time-limited and may relate to a single event, complex PTSD involves multiple or ongoing traumas, is more pervasive in its effects and can involve all domains of function. It always includes difficulties with mood regulation, relationships and the development of self.
She identifies that the plaintiff presented with disturbances in each of those three domains:
(a)mood dysregulation: anxiety, panic, depression;
(b)relationship difficulties: social, intimate, sexual and parental relationships; and
(c)self-organisation: damaged sense of self; self-consciousness, lack of self-worth.
She described that the trauma of sexual abuse has not been confined to the abusive acts but includes trauma arising from a sense of betrayal and humiliation. The diagnosis of complex PTSD is an overarching concept which includes the effects of what would otherwise be severally diagnosed conditions of depression, anxiety and personality change.
So far as bruxism was concerned, she said that this was generally considered to be a medical disorder rather than a psychiatric condition but that it is widely accepted that it is associated with psychological factors including childhood trauma and sexual abuse. Her opinion was that for the plaintiff “it clearly arose in that context”.
In relation to prognosis, complex PTSD has an uncertain one and the outlook is more guarded where, as in this case, the typical comorbidities are present and quite severe.
So far as causation is concerned, Dr Quadrio said:
Prior to the abuses, [the plaintiff] was progressing well in general and she was outstanding in sporting achievement, competing at an elite level. At the time, she was confident and outgoing. From the time of the abuse, however, she underwent steady deterioration in her adjustment, becoming withdrawn, self conscious, losing confidence and self esteem, and, ultimately, suffering from symptoms of PTSD, anxiety, and depression, as has been detailed. Thus, the abuse was the major determinant of her psychiatric conditions.
The financial hardship [the plaintiff] suffered after her parents separated added to her difficulties, most particularly in limiting her continued participation in sport. This was a contributing factor, rather than causal, since it was several years into the period of abuse, and [the plaintiff] was already suffering post traumatic symptoms to the point of depression and suicidality.
In my view there are no other contributing factors of significance; the subject assaults are the major factors in [the plaintiff’s] current psychiatric conditions.
Because of the impact of her lack of confidence and panic attacks, the report concluded that the plaintiff may be able to cope with some home-based work but even then, her lack of concentration and focus would limit her.
In relation to treatment, Dr Quadrio stated that the treatment of complex PTSD would require treatment by a psychologist or psychiatrist with appropriate expertise in weekly sessions over a two- or three-year period. Additionally, a period of six to 10 sessions of cognitive behaviour therapy to address panic attacks and flashbacks would be of assistance. She indicated that some family counselling may be useful in relation to the difficulties in the plaintiff’s relationship with her older two children.
She identified the general cost of these therapies as $250 to $300 per session and identified the Medicare rebates. In relation to antidepressants, she indicated that the cost of that medication is about $50 a month after the pharmaceutical benefits scheme subsidy.
The evidence of Dr Quadrio was not significantly challenged in cross examination.
Having regard to Dr Quadrio’s evidence, I accept:
(a)the diagnoses that she made;
(b)the opinions that she expressed as to the consequences of those diagnoses for the plaintiff;
(c)her assessment of the appropriate further treatment for the plaintiff; and
(d)the costs of that further treatment.
Damages generally
Plainly enough, the assessment of damages must take into account the immediate experience and effects of the abuse itself. However, more significant are the long-term consequences of that abuse upon the plaintiff’s mental state, her personality structure and her relationships throughout her life. That involves consideration of the counterfactual situation in which she was not abused.
In circumstances where there is no comparative evidence of, for example, the life trajectory of her siblings or other relatives (see State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536 (Moss) at [84]), that is a difficult and uncertain exercise. It is not that hard to assess the consequences of the abuse where there are consequences obviously distinctly related to it, such as where the plaintiff suffers from flashbacks or panic attacks arising from specific triggers associated with the abuse. It is harder to assess where the “baked-in” consequences are personality changes arising from lack of confidence, the sense of betrayal and the loss of trust affecting the plaintiff’s work and relationships. Nevertheless, the difficulty in assessing damages does not avoid the necessity to do so: Moss at [72].
Assessment of general damages
The plaintiff suffered serious sexual abuse as a young child. That occurred in at least 1980 and 1981 and involves at least 20 occasions of penile-oral penetration or digital‑vaginal penetration. It involved occasions of ejaculation into her mouth. It involved a gross abuse of the family relationship. It was combined with an instruction of secrecy and the manipulation of her desire to protect her cousins. It is the kind of sexual abuse which may readily be accepted would cause very significant long-term consequences for the child. Those consequences have in fact manifested themselves. The plaintiff suffers anxiety, panic and depression, has difficulty with her family and sexual relationships, has a damaged sense of self, is self-conscious and perceives a lack of self‑worth.
Many other events occurred in her life, most notably the separation of her parents, the lack of contact with her father and the failure of her various businesses. These cannot be causally attributed to the sexual assaults. However, in addressing the challenges in life, the plaintiff was likely to have been impeded by the long-term psychological consequences of serious sexual abuse occurring at a young age. The pervasive and complex effects of that kind of abuse are described in the report of Dr Quadrio. Those consequences made her less able to cope with the various other (very significant) challenges that life presented. It is in that way that the pervasive effects upon her have had and continue to have consequences for her.
The psychological consequences of the assaults have not prevented her from raising her children, engaging in employment and other business ventures. She has been able to sustain married relations for significant periods. However, these difficulties have been with her to a greater or lesser extent since the abuse. Her prognosis is uncertain and according to Dr Quadrio, that prognosis is more guarded when the typical comorbidities of PTSD namely depression, anxiety and personality change are present and quite severe. It is likely that treatment, if it is obtained, will have some effect on the severity and consequences of these conditions.
The plaintiff is now 54 years old and has a life expectancy of 33 years. The abuse occurred when she was between the age of 11 and 13. It was therefore between 41 and 43 years ago.
In my view, an appropriate award of general damages is $240,000 including aggravated damages as discussed below. That amount is to be attributed 75 percent to the past ($180,000) and 25 percent to the future ($60,000). The weighting towards the past reflects the suffering caused at the time of the offending and in the critical adolescent years after the offending, as well as over the many years up until today. The award for the future recognises that the effects of the abuse are still present but that they will be somewhat ameliorated by the vindication given by the court proceedings and the treatment made possible by the award of damages.
Interest on past general damages
If 75 percent of these general damages are attributed to the past and those damages were incurred evenly over the period, then the amount of interest would be $151,200 (42 years x 0.02 x $180,000).
Up until the insertion of s 21C in the Limitation Act 1985 (ACT) in 2016 there would have been a limitation bar upon proceedings. Except in relation to the period following the removal of the limitation bar, there does not appear to be an appropriate basis upon which to deny the plaintiff interest. The legislature has made a decision to permit what would otherwise be long statute-barred actions. The logic of compensation means that it is appropriate to make an award of interest even for the period during which the plaintiff could not have successfully brought proceedings. There is however a five-year period from the removal of the limitation bar until the commencement of proceedings. It is not appropriate that the defendant bear the interest liability for that period. Interest will therefore be calculated in a manner that excludes the five-year period from 2016 until the commencement of proceedings in 2021. The general damages accrued prior to 2016 are $188,571 ($180,000 - $21,429). Interest on this amount over 37 years is $117,342 (37 years x 0.02 x $158,571).
Aggravated damages
There were several aspects of the claim for aggravated damages. The first was the set of circumstances immediately associated with the abuse, the position of trust held by the defendant and the instruction to her not to tell anyone because she would be thought to be a liar. Second was the conduct in 2018 where the plaintiff alleged that the defendant had deliberately followed her between Bungendore and Braidwood. Third was the conduct shortly after in which the plaintiff said that the defendant and his sister attended the Bodalla Arms Hotel. Fourth was the defendant’s failure to admit the offences at his criminal trial with the consequence that the plaintiff was forced to give evidence at a contested hearing.
The factual basis for the first aspect of aggravated damages is made out: see [18]-[21]. The factual basis for the second and third aspects of aggravated damages are not made out: see [43]-[44]. The factual basis for the fourth aspect of aggravated damages is uncontroversial in that the defendant did not admit the offences and was convicted after trial before a jury.
Aggravated damages may be awarded where the defendant had acted, either in committing a tort or thereafter, with contumelious disregard for the plaintiff’s rights, in an insulting or high-handed way or with malice: Harold Luntz, Assessment of Damages for Personal Injury and Death (LexisNexis, 5th ed, 2021) at 188. They are awarded because the plaintiff suffers to a greater extent as a result of the circumstances in which the injury occurred or the subsequent conduct of the defendant.
In this case, it is not necessary to draw the distinction between general damages and aggravated damages. The consequences of the defendant’s conduct in carrying out the abuse in circumstances of his relationship with the plaintiff, his instructions to keep it secret and the ultimate necessity for a criminal trial and its consequences for the plaintiff are all matters which I have taken into account in assessing general damages as they form part of the psychological consequences of the abuse. Had it been necessary to do so, I would have made an award of general damages and separately of aggravated damages which in aggregate gave the same result.
Economic loss
In relation to economic loss, the plaintiff submitted that had it not been for the abuse then it is likely that there would be a greater degree of stability in her employment history. The defendant pointed to her capacity to engage in a variety of different employment activities and the fact that it was her repetitive strain injury rather than any consequence of the abuse that affected her capacity to continue in the public service.
The plaintiff’s working life involved disruptions caused by work injuries and child raising. Similarly, there have been business failures which cannot be directly tied to the consequences of the abuse. Nevertheless, the evidence of the plaintiff and Dr Quadrio establish conditions which are likely to have reduced her earning capacity. The evidence indicates that the plaintiff did not lack the capacity to do a variety of jobs other than in relation to the interactions with people. In the absence of that impairment of her working capacity, there is still significant uncertainty as to the extent to which she would have deployed it. That is, there is uncertainty as to the extent to which the loss of that capacity has been productive of economic loss.
The plaintiff claimed past economic loss on the basis of the difference between what she would have earned had she earned average weekly earnings and the amount that she actually earned. Excluded from any claim was the period 1988-2001 where the plaintiff was looking after her children and was in receipt of Comcare workers compensation payments. The plaintiff’s claim assumes that she would have worked full‑time in those periods when she was not at home looking after children. The amount claimed was (inclusive of superannuation) $900,884 which was $1,200,000 that it is said she would have earned less the amount she did earn or receive in other payments, being $388,392. The plaintiff also agreed that the proceeds of her claim arising out of her thumb injury ($250,000) would need to be deducted from this amount, reducing it to $650,884.
The defendant contended that it was wrong to base the calculations on average weekly earnings as it would be more accurate to base them on average weekly female earnings. That would have the effect of reducing the starting point to just under $1,100,000 and the resultant figure to approximately $530,000.
Further, these calculations take no account of the fact that in 2015 she had two further children and is unlikely to have been working full-time, if at all, during the subsequent years even in the absence of the abuse.
It is only possible to address the question of past and future economic loss at a high level of generality. The plaintiff has suffered a loss of earning capacity as a result of the defendant’s conduct because she is likely to have been able to maintain employment over longer periods than she has been able to and by maintaining that employment would be likely to have progressed to higher levels of remuneration. However, the extent to which that has been productive of economic loss is subject to so many contingencies that it is only possible to deal with the matter on a buffer basis recognising the likelihood of some loss but being unable to calculate it other than in a global sense. The award for the past will be $200,000 inclusive of loss of superannuation and interest.
In relation to the future, the claim was for 75 percent of average weekly earnings of approximately $1300 net until the age of 67. This gives a figure of $549,217 ($1300 x multiplier of 563.3 = $732,290 x 0.75). The claim was then increased by 11 percent to take account of superannuation ($609,631) and decreased by 15 percent for vicissitudes to give a figure of $518,186. This would need to be adjusted to average weekly female earnings, the effect of having two young children and the fact that there was no evidence of the plaintiff in relation to her intention to work to age 67. Having regard to these matters, a buffer of $150,000 inclusive of superannuation is appropriate.
Domestic care
The evidence of the plaintiff’s daughter is sufficient to support the claim for domestic assistance of one hour per week. The level of support that she provides her mother goes beyond that which would be expected for someone who did not suffer from her psychiatric conditions.
So far as the past is concerned, the evidence of the plaintiff’s daughter was not specific. She described her assistance as the current practice but did not give evidence of how long it had gone on. In those circumstances an award limited to $2000 inclusive of interest is appropriate.
In relation to the future, it is not appropriate to make any award beyond the age of 65 as, in the present case, it has not been proven that the need would be greater than that which would have existed in any event. The award for domestic assistance will therefore be $17,150 (multiplier 490 x $35).
Therefore, the total damages to be awarded under this head is $19,150.
Out-of-pocket expenses
Past out-of-pocket expenses involved some expenses for which Medicare made a payment of $410 as well as some travel costs to attend medical appointments of $121. Both of these amounts will be allowed giving a total of $531. Given that the bulk of these expenses were covered by Medicare, no interest will be awarded.
In relation to future out-of-pocket expenses, regard must be had not only to the ideal regime of treatment but also to the prospect that the plaintiff will undertake that treatment. The minimal treatment in the past indicates that some caution must be exercised with any assumption that the plaintiff will actually undertake all remedial treatment that a doctor or other health professional might suggest.
The regime of psychological or psychiatric treatment treatment and its cost suggested by Dr Quadrio are set out above. Having regard to the plaintiff’s history of minimal psychiatric or psychological intervention in the past, it is unlikely that she would engage in such a comprehensive regime of treatment.
In 2021 she obtained advice about the cost of implants to support dentures or implements of acrylic or porcelain teeth. These range from $15,000-$25,000.
If the plaintiff obtained 57 sessions of psychiatry or clinical psychology at $350 per session then that would be an amount of approximately $20,000. Antidepressant medication for the rest of her life would be approximately $12,000 (equivalent to $11 per week with a multiplier of 1099.8). Dental treatment to address her difficulties with dentures would be somewhere between $15,000 and $25,000. Having regard to the uncertainties as to what treatment she will actually proceed within the future and award of $35,000 is appropriate to reflect the various possibilities.
Summary
The damages to be awarded are as follows:
General Damages
$240,000
Interest on past component
$117,342
Economic Loss
Past
$200,000
Future
$150,000
Domestic Care
Past (including interest)
$2000
Future
$17,150
Out-of-pocket expenses
Past
$531
Future
$35,000
TOTAL
$762,023.00
Orders
The orders of the Court are:
1. Judgment be entered for the plaintiff in the sum of $762,023.
2. The defendant is to pay the plaintiff’s costs.
3. Order 2 does not take effect for 14 days and, if the defendant within that period notifies the associate to Mossop J by email that he wishes to be further heard in relation to costs, does not take effect until further order.
| I certify that the preceding ninety-eight [98] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop Associate: Date: 3 August 2022 |
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