Palmer v State of New South Wales

[2024] NSWSC 179

Supreme Court

New South Wales

Medium Neutral Citation:

Palmer v State of New South Wales [2024] NSWSC 179

Hearing dates:

01 September 2023

Date of orders:

29 February 2024

Decision date:

29 February 2024

Jurisdiction:

Common Law

Before:

Garling J

Decision:

(1) Judgment for the plaintiff against the third defendant in the sum of $1,832,900.

(2) Third defendant to pay the plaintiff’s costs of the proceedings.

(3) Liberty to apply.

Catchwords:

TORTS – Trespass to the person – Battery – Damages – Personal injury damages – Assessment of damages for default judgment in favour of the plaintiff.

Legislation Cited:

Civil Liability Act 2005

Uniform Civil Procedure Rules 2005

Cases Cited:

Not Applicable

Texts Cited:

Not Applicable

Category:

Principal judgment

Parties:

Kathleen Palmer (P)
State of New South Wales (D1)
Lillian Dora Ladis (D2)
Edwin Schwartz (D3)

Representation:

Counsel:
A McQuillen (P)

Solicitors:
Buckley Lawyers (P)
No Appearance (D1)
Deceased (D2)
No Appearance (D3)

File Number(s):

2021/161565

Publication restriction:

Not Applicable

JUDGMENT

1. Ms Kathleen Palmer (the plaintiff) brings proceedings seeking, amongst other things, damages for historical child sexual assault from three defendants.

2. The proceedings were initially commenced by a Summons filed on 4 June 2021. After some initial management hearings, the plaintiff was ordered to file a Statement of Claim, which was filed on 17 December 2021. The first-named defendant was the State of New South Wales. The plaintiff has resolved her claim against the first defendant and orders finalising the claim have been made. The State is no longer involved in the proceedings.

3. The second-named defendant is Ms Lillian Dora Ladis. She became the plaintiff’s guardian, and the person with whom she lived in Queensland after the plaintiff had been made a Ward of the State. Ms Ladis has died since the commencement of the proceedings, her Estate was not the subject of any grant of probate or Letters of Administration, and the proceedings have not continued against her.

4. The third-named defendant, Mr Edwin Schwarz (the son of the second defendant) was sued on the basis that whilst the plaintiff was living with the second defendant and her husband, he too was living in the same house and, for a period of five years between 1975 and 1980, sexually assaulted and abused her.

Judgment in the Absence of a Defence

5. The evidence before the Court satisfied me that the plaintiff had properly served all relevant documents on the third defendant in accordance with either Court orders or the requirements of the Uniform Civil Procedure Rules 2005 (“the UCPR”). On one occasion, the third defendant appeared personally in the proceedings.

6. On 1 September 2023, I ordered that there be judgment for the plaintiff against the third defendant, with damages to be assessed.

7. I did so having been satisfied that the Motion and affidavits in support had been properly served on the third defendant, and in the absence of any statement of Defence having been filed by the third defendant nor any appearance by him at the time the Motion for entry of judgment was returnable.

8. I made further consequential orders to enable damages to be assessed.

9. This judgment constitutes an assessment of damages for the plaintiff against the third defendant.

Facts

10. These facts are drawn from the plaintiff’s statement, a variety of statements from other witnesses, and contemporaneous documents.

11. The contents of the statements were not challenged by the third defendant, and I have no reason to reject any part of the plaintiff’s statement. I accept the plaintiff’s statement and, to the extent that there is any inconsistency in the plaintiff’s memory when compared with the contemporaneous documents, I generally have had regard to those contemporaneous documents, as they are likely to be more accurate, particularly as to details of dates, times and places.

12. On 5 September 1973, when the plaintiff was 6 years of age, she was playing with some of her siblings in the backyard of her home in Parramatta. She was alerted to the fact that there had been a number of gunshots and shortly thereafter discovered that her stepfather had shot her mother and another woman. Then, by turning his gun on himself, he committed suicide. The plaintiff went to the back door of her home and could see her mother’s body. She was too scared to go inside.

13. Together with her sister, Patricia, the plaintiff was taken by Police officers to Thornbury Lodge at Baulkham Hills where they were both initially cared for.

14. On 4 October 1973, the Minda Children’s Court committed the plaintiff to the care of the Minister for Youth and Community Services as a Ward of the State.

15. At about that time, the second defendant and her then husband applied to the Minister for custody of the plaintiff and her sister Patricia. The second defendant was the sister of the plaintiff’s stepfather, who had murdered her mother.

16. The second defendant and her then-husband lived in Brisbane, and some administrative steps had to be taken by the Minister before the plaintiff could go and live with them.

17. On 18 December 1973, after a series of formalities had been attended to, the plaintiff (and her sister, Patricia) commenced living in Queensland with the second defendant and her husband who were formally recognised as her foster parents. In Brisbane, the plaintiff and Patricia lived with the second defendant and her husband who also had two other children – a daughter named Annette, and a younger son named Edwin, who is the third defendant.

18. Prior to her leaving NSW to take up residence in Queensland, the plaintiff underwent a Psychological and Educational Assessment with D Doratis, a psychologist. The psychologist recorded that the plaintiff was functioning intellectually in the normal range, and that she was beginning First Grade educational work at that time. The psychologist thought that the plaintiff was upset and was having difficulty in dealing with the events surrounding the death of her mother and step-father, and the various arrangements being made for her accommodation.

19. The plaintiff had difficulties at school when she initially attended, and her placement in Queensland away from all of her other siblings except Patricia, was clearly distressing for her.

20. The plaintiff did well academically, although she was recorded as having some problems relating to other children at the school.

21. By January 1976, it became apparent to the Childcare Officer at the Queensland Department of Children’s Services that the second defendant was having significant difficulties caring for the plaintiff and Patricia. At that time, the second defendant had made a request that both of her foster children be placed into another foster home in NSW because she did not appear to be willing to keep the children on a permanent basis. However, the Childcare Officer thought it was preferrable at that stage for the placement of the plaintiff and Patricia to continue as long as was feasible.

22. In about May 1976, the second defendant separated from her husband who then left the family home.

23. The plaintiff’s statement records a series of incidents with the second defendant in which it is clear that she was physically assaulted by the second defendant. It is unnecessary to recount the detail of those assaults.

24. During 1976, when the plaintiff was 9 years old, there were a number of occasions during which she and the third defendant were alone in the house. On different occasions, the plaintiff was subjected to the following conduct:

1. the third defendant would require her to get undressed and would then take photos of her naked. When the plaintiff indicated that she did not wish to engage in this conduct, the third defendant told her to do as she was told or else she would be physically assaulted;

2. the third defendant would require the plaintiff to take a bath with him. Whilst in the bath, the third defendant would physically assault the plaintiff by poking and prodding her around her vaginal area and otherwise digitally manipulating her labia to see “how far he could stretch it”;

3. on a number of occasions when the plaintiff needed to use the toilet, the third defendant would watch her doing so, instructing her to spread her legs so that he could observe exactly what was happening; and

4. the third defendant would require the plaintiff to play cards with him and would then take her to the bathroom and then sexually assault her. Those assaults consisted of the third defendant poking and pulling on the plaintiff’s genitals and attempting to digitally penetrate her.

25. On one occasion in 1977, when the plaintiff was at home with the third defendant, the third defendant required the plaintiff to undress and then proceeded to forcibly penetrate the plaintiff’s vagina with his penis and caused her significant pain. The plaintiff notes that such sexual assaults continued from that time in 1977 until at least 1980 or 1981.

26. In late 1979 or early 1980, the plaintiff and Patricia were removed from the care of the second defendant by her elder sister, Jenny, and her elder brother, Danny. She went to live in NSW with Jenny.

27. The plaintiff and Patricia were unable to remain living with Jenny because of Jenny’s personal circumstances including the breakdown of her marriage.

28. In March 1980, the plaintiff and Patricia were taken to live at Minali Children’s Home where they resided in the Boori Cottage.

29. At the start of May 1980, the plaintiff returned to live with the second defendant and her new de facto partner, Mr Drago Ladis. Patricia did not return to Queensland and other arrangements for her care were made.

30. At that time, the plaintiff was enrolled at and attended Coorinda High School, starting in Year 9 in 1981.

31. In 1982, the plaintiff had a most unpleasant verbal exchange with the second defendant. The second defendant told the plaintiff that her mother deserved to die and that her father (the second defendant’s brother) was “… a great man for killing her …”. The second defendant also told the plaintiff that the only reason she had become a foster mother for the plaintiff and Patricia was “… to get back at her mother …”. When the plaintiff disagreed with the second defendant, she was physically assaulted and was, quite naturally, distraught at what she had been told and what had happened.

32. She left the house for school on that day, and after that time, having reported to the school authorities and the District Officer of the Queensland Department of Children’s Services, was removed from the second defendant’s home. She never returned there.

33. The plaintiff’s history after that incident, and after leaving the second defendant’s home, has been quite variable and complex. She ceased school in late 1983 and obtained casual employment as a check-out operator at a local store.

34. The Queensland Department of Children’s Services undertook various placements of her in care. She was observed to be “a difficult teenager to live with”. She had a strong desire to return to Sydney and be with her siblings and family.

35. When that did not appear to be an easy task, the plaintiff made an attempt to end her life on the spur of the moment by consuming a large number of antihistamine tablets - the attempt did not succeed. The relevant authorities were notified, and she was taken to hospital where she made a good recovery.

36. Shortly afterwards, in February 1984, the plaintiff returned to Sydney on a short‑term basis, to attempt a reconciliation with her family. This succeeded for a period, and thereafter the plaintiff remained in Sydney.

37. At about the age of 18, she formed a relationship with Mr Reece Palmer, and in February 1986 gave birth to her first son, Scott; this was followed by two further sons, Ricki (born in 1987) and Shannon (born in 1990).

38. By the time Shannon was born, the plaintiff and her partner Reece and two eldest sons had moved to live in Gilgandra in NSW.

39. In mid-1990, an unpleasant incident occurred in the family home which triggered the plaintiff’s memories of the traumatic period when she had been sexually abused by the third defendant (“the adverse incident”). She suffered emotionally at that time, and attended the Gilgandra Hospital for treatment with respect to the shock and anxiety attack she suffered as a result of the incident and those triggered memories.

40. During the course of counselling, which was initiated because of the adverse incident, the plaintiff disclosed to her counsellor some details of the sexual assault which she had suffered at the hands of the third defendant. In a report prepared some years later, the counsellor recorded this:

“Mrs Palmer had experienced a very tragic childhood, with her parent being murdered and sexual abuse in foster care. Her most important goal in life was to protect her own children from abuse.”

41. In March 1991, the plaintiff gave birth to her fourth child, a daughter.

42. Whilst the plaintiff was obtaining help with respect to her traumatic experience of sexual assault, she nevertheless found that those experiences began to intrude upon, and cause problems in, the relationship with her husband, Reece. In mid-1992, the problems became so severe that she made another attempt to take her own life by overdosing on Valium and alcohol. She was admitted to Bloomfield Hospital in Orange for psychiatric care at that time.

43. In 1992, the plaintiff obtained employment at a truck-stop restaurant where she prepared meals and also cleaned rooms.

44. By May 1993, she was admitted again to the Bloomfield Hospital suffering from severe depression, anxiety and suicidal ideation. Part of her presentation was the effect of the past sexual abuse of her by the third defendant.

45. The plaintiff left Gilgandra in about 1995. She moved to Sydney to take up residence there. Between 1995 and 1997, she was seen at various facilities at the Wentworth Area Health Service. In mid-1996, the plaintiff spent five days in the Pialla Unit (a mental health unit) at the Nepean Hospital.

46. The plaintiff had been admitted for symptoms of anxiety and depression, and overdose of benzodiazepine. She was diagnosed with an Adjustment Disorder and a benzodiazepine Withdrawal Syndrome. Initially she was nursed in a closed observation facility but she was ultimately moved to an open ward shortly before her discharge. She was discharged with medication.

47. She had reported to her treating doctors during that stay, amongst things, the existence of her history of child sexual abuse by the third defendant.

48. Dr Alexander Bremmer, a psychiatrist with the Penrith Mental Health Team, prepared a report on the plaintiff in April 1998. That report included the following:

“Mrs Palmer originally presented to the Wentworth Area General Counselling Service on the 7^th December 1995. She presented with problems in parenting and relating to her children, panics, tearfulness, irritability and insomnia, difficulty coping, feeling worthless, frightened and lonely. She had recently separated from her partner … [An account of the adverse incident] … This had brought back memories of Mrs Palmer’s own abuse as a child when she had been sexually assaulted by a cousin from the age of 9 years to 15 years.

At the time of her presentation she had become sexually unresponsive to her partner who in turn had retaliated by withdrawing practical support. At the time she reported feeling ‘she didn’t want to be here’ but had no plans of suicide and felt concern for her children’s needs and interest, preventing her from developing those thoughts.”

49. The psychiatrist recorded the plaintiff’s background history as being relevant to her condition, and included the following:

“… She became a Ward of the State and was moved to Queensland to be taken care of by her aunt. Kathy felt her Aunt did so in order to get back at her Mother through her. She described emotional and physical abuse and being sexually assaulted by her cousin with whom she lived with from the age of 9 years. She felt she now suffered from insomnia as a result of her cousin telling her that he would kill her if she sleep-walked into his room when she was 7 years old. At the age of 15 years she ran away and lived in a refuge and was looked after by a Social Worker.

…

At the time of this assessment … she was thought to be suffering from Major Depression with Anxiety and issues of past sexual assault.

…

In conclusion Mrs Palmer suffers from Alcohol Dependence Syndrome with depression and anxiety. Once someone has become dependent on alcohol to this extent the only route to help is through abstinence and controlled drinking is no longer really possible.

In retrospect it seems that Mrs Palmer had an extremely traumatic childhood but had managed to get her life together until [the adverse incident].

Although the full extent of her alcohol consumption has only recently been evident. She has probably been drinking excessively for some time.

[The adverse incident] brought back very unpleasant memories of her own abuse as a child. She resorted to the use of Marijuana and alcohol in an attempt to cope with her thoughts and feelings and developed secondary depression and anxiety. When admitted to Hospital her mood tended to improve quite markedly, but on discharge she returned to a depressed state. It seems that her lack of response to anti-depressant medication and indeed her ongoing symptoms are largely a result from continued use of alcohol. However she is reluctant to give up alcohol and in view of this it seems that her prognosis is poor.”

50. Later in 1998, the plaintiff again made a number of attempts to take her own life. One was where she sat on the edge of the water at Werrington Lake and consumed a mixture of prescription medication and alcohol. She was found by Police and taken to Nepean Hospital. She discharged herself from the Hospital and headed down towards the railway tracks in the area near the Hospital. She was again found by the Police and re‑admitted to the Pialla Unit at Nepean Hospital.

51. After her discharge from that Unit, the plaintiff was seen and treated at St John of God Hospital at Richmond where she attended a Survivor’s Program for Victims of Child Sexual Abuse. She reported the sexual abuse by the third defendant to the Penrith Police Station. She was told that the Police, after extensive enquiries, were unable to locate the third defendant.

52. Thereafter, the plaintiff had intermittent admissions via the Emergency Department to the Nepean Hospital.

53. In about 2000, after the third admission to Nepean Hospital, the plaintiff moved to Queensland with her family and lived in rental accommodation.

54. In about 2007, whilst living in Redcliffe in Queensland, the plaintiff suffered a form of mental breakdown which apparently led to her being detained in the street by the Police and being taken to the Mental Health Ward at Caboolture Hospital in Queensland.

55. The plaintiff’s relationship with her husband deteriorated. Her symptoms of anxiety and depression were exacerbated, and she found herself spending most of her days in bed, not eating or talking to anyone. Eventually she saw a diminution of those symptoms. Ultimately, in 2014, she managed to purchase a home in Queensland, where she has continued to reside.

56. The plaintiff consulted with lawyers who referred her to experts for the purpose of obtaining reports relevant to the litigation.

57. Reference will be made below to the opinions of those experts.

58. In her statement, the plaintiff described her current state in various ways, but in particular in the following:

“160.   I still have a lot of issues regarding my abuse and I still experience serious bouts of depression. I still have my fear of the dark and I have an instant hatred of any male that is white with Afro hair. I find smoking is a stress relief for me, although it has impacted my health and I now have lung issues.

161.   Every now and again, even the simple task of going to the toilet brings back sordid memories for me of the abuse at the hands of [the third defendant]. I cannot handle intimacy and I am still always on guard with my grandkids, regarding anyone that may hurt them. I am very protective of them and do not let them play on my property without supervision.

162.   I will not allow people to get close to me and if anyone tries to speak down to me, I totally lose my temper as I refuse to be spoken down to again. …

…

164.   My own children and husband have also been directly affected by what happened to me during my childhood, as I was not always functioning on a stable emotional level with them throughout my life.

…

166.   … I believe the trauma of my past has robbed me of the aspiration I had in becoming a registered nurse. I often think to myself how can I care for those when I cannot even care for myself.

167.   My life has more misery in it than happy memories and to this day I still struggle to keep it together. …

168.   Had I not received and suffered physical and sexual abuse at the hands of [the second and third defendants] I would have trained to become a registered nurse in New South Wales and followed a career in nursing. Except for the time I tendered to my three sons in their early years, I would have worked as a registered nurse in hospitals … from at least the age of 21 years to date.

169.   Apart from itinerant spasmodic employment, I have been unable to engage in regular gainful employment. I am presently and have for many years now been in receipt of Social Security Benefits.”

59. The plaintiff’s account of her abuse is corroborated, at least indirectly, by the observations made of her by her sister, Patricia. Patricia speaks of her time living at the second defendant’s house and of her interactions with the third defendant. This material tends to corroborate the plaintiff’s description of the third defendant’s conduct.

60. For some time after Patricia left the second defendant’s home, her relationship with the plaintiff was difficult. She gives this account in her statement, which I accept:

“48.   When Kathleen and I spoke to each other, she would always bring up the past. She was always bitter that I could not remember dates and times of the things that happened to us during our childhood.

49.   She treated me as if I had not experienced the same childhood as she had. She said to me words to the effect of ‘You would not believe or understand the things that have happened to me’.

…

51.   To this day, we remain in contact, however I never want to discuss our past and my intentions have always been to move on with my life.

52.   Each time I see Kathleen she appears sad and very much a shell of the person I remember growing up as a child. Low self-esteem and very negative, she never seems to want to hear anything positive about herself.”

Report of Dr Anna Farrah - 19 February 2020

61. The plaintiff consulted Dr Anna Farrah, a specialist psychiatrist, in November 2019 so that Dr Farrah could compile a report, including a psychiatric assessment.

62. During her consultation with Dr Farrah, the plaintiff reported that she had been abstinent from alcohol for 15 years. She was asked about current symptoms and function, and gave this account:

“Ms Palmer reported that she still had panic attacks every now and again. She reported that she had problems with sleep, including falling asleep and staying asleep. She reported that she slept with the lights on and could not sleep in the dark. She reported problems trusting people. She endorsed problems with anger and said ‘If people give me crap, I won’t take it’. She reported feeling depressed at times. She reported she tried to ‘fill my life with my grandkids’.”

63. On a mental state examination undertaken by Dr Farrah, the plaintiff’s mood was judged to be mildly anxious. She was tearful throughout most of the interview. She was mildly thought-disordered, but Dr Farrah did not determine the existence of any dangerous ideation and found that her cognition was grossly intact.

64. Dr Farrah expressed this opinion:

“According to the history provided by Ms Palmer, and the collateral information available, Ms Palmer had a DSM-5 diagnosis of Borderline Personality Disorder characterised by affective instability (history of depressed and angry mood with absence of pervasive mood disturbance), eating disorder history, history of suicidal ideation and previous suicide attempts and problems with interpersonal relationships (including with parenting, relationship with her husband and relationship with her coworker). … Ms Palmer reported multiple risk factors/history of significant trauma as a child, which would predispose to her to developing a Borderline Personality Disorder, including history of exposure to significant domestic violence between her parents from her birth until she was aged 6; history of exposure to violence perpetrated by her father; history of losing both of her parents aged 6 under traumatic circumstances; history of separation from her siblings after the deaths of her parents and foster placement; history of alleged physical and psychological abuse by her aunt Lillian aged 6-15; history of alleged sexual and psychological abuse by her cousin Edwin aged 9-10; and history of change in foster placement aged 12. She had further factors which would have perpetuated her symptoms, including running away from home aged 15, teenage pregnancy and care of four children as a young adult; domestic violence in her marriage; use of alcohol and cannabis; alleged abuse of her two sons; financial difficulties; and problems with employment. Her Borderline Personality Disorder has partially stabilised as an adult; her last contact with mental health services was in 1998 and there have been no recent suicide attempts or mental health treatment. Ms Palmer had a history of poor response to antidepressant medication, consistent with borderline personality disorder.

Ms Palmer had a history of Alcohol Use Disorder with problems with alcohol use beginning as a teenager … Ms Palmer reported that she last used alcohol 15 years ago; her alcohol use disorder was therefore in sustained remission at the time of assessment on 29 November 2019.

Ms Palmer had a history of Cannabis Use Disorder with problems with cannabis use beginning as a teenager and in her 20s and 30s. … Her cannabis use disorder was therefore in sustained remission at the time of assessment on 29 November 2019.” (emphasis in original)

65. Dr Farrah was asked whether the plaintiff’s condition was “… in any way brought about or contributed to by [the plaintiff’s] claim of sexual abuse …”.

66. Unsurprisingly, in light of the multiple circumstances to which Dr Farrah had earlier referred, her opinion was guarded. Having recounted all of those earlier facts, she said this:

“Given her multiple significant childhood traumatic experiences, it would not be possible to establish whether her alleged childhood sexual abuse was the primary risk factor in her development of her Borderline Personality Disorder.

These risk factors or traumatic experiences would have also predisposed her to developing her Alcohol Use Disorder and Cannabis Use Disorder.”

67. Dr Farrah went on to the discuss the availability of Dialectical Behaviour Therapy, done either on an individual basis or as part of a group, which might benefit the plaintiff as a form of treatment for her Borderline Personality Disorder.

Report of Dr Karen Chau – 8 November 2022

68. On 24 October 2022, at the request of the plaintiff’s solicitors, the plaintiff was assessed by an expert psychiatrist, Dr Karen Chau. Dr Chau produced a very lengthy, comprehensive and helpful report, which I entirely accept.

69. In light of all that I have recounted, it is unnecessary for me to quote extensively from Dr Chau’s report, which makes detailed reference to the plaintiff’s past history and the course of her life and treatment.

70. The plaintiff told Dr Chau that as a consequence of various symptoms, her doctors believe that she may have Chronic Obstructive Pulmonary Disease. She also told Dr Chau that she had chronic back pain from a degenerative condition which she first noticed in 2016, and which has worsened since then. The consequence of her chronic back pain was that she stopped working as a baker in 2019. She recounted that the chronic pain and physical limitations and its effect on her activities, particularly with her grandchildren, aggravated her anxiety, depression, helplessness, and hopelessness.

71. Dr Chau recorded this with respect to her current level of functioning:

“[The plaintiff] lived alone in rental accommodation. She said she was independent with housework and financial management. No bills were in arrears. It was reported that she was house proud.

[The plaintiff] stated that she has no friends. However, she maintained telephone contact with one cousin and had regular contact with her son, daughter, their partners, her grandchild and step-grandchildren. It was reported that she was able to meet them socially, independently.”

72. Dr Chau undertook a Mental State Examination and recorded this:

“[The plaintiff] was pleasant and cooperative throughout the assessment. There was good rapport. She was fidgety and was occasionally tearful.

Her affect was reactive and appropriate (normal facial expression) and she was noticeably anxious.

[The plaintiff] had over-inclusive and rambling speech. She often digressed off the topic. Thus frequent repetition of questions need to occur.

[The plaintiff] spoke about the effects of the childhood and adult trauma on her. Although she had fluctuating suicidal thoughts, she denied having plans to act on this. [She] described how she had nightmares and flashbacks regarding childhood and adult trauma.

She was alert with reduced concentration and reasonable recall.”

73. Dr Chau recorded her summary and conclusions in this way:

“[The plaintiff] was a 55-year-old unemployed grandmother who described having symptoms suggestive of Post Traumatic Stress Disorder (‘PTSD’), Generalised Anxiety Disorder and Social Phobia as a result of reported emotional, physical and sexual abuse as a result of her foster placement from the ages of 6 years old until 15 years old.

…

There appeared to have been a significant aggravation of PTSD and the development of Major Depressive and Polysubstance Use Disorder in her 20s to 30s, after discovery of [the adverse incident]. The latter two conditions appeared to be in remission currently.

The sudden and traumatic death of her mother (murdered by her alleged biological father), socially disadvantaged background, unstable schooling and placements, personality and genetic vulnerabilities may have predisposed her to these psychiatric injuries.

Limited social support, threat of ongoing domestic violence, limited contact with siblings, chronic grief, her copying style, limited education, high caffeine intake, estrangement from two sons, chronic pain, health concerns and unemployment may be maintaining symptoms.”

74. Dr Chau was of the opinion that the plaintiff suffered Post Traumatic Stress Disorder (“PTSD”), Generalised Anxiety Disorder and Social Phobia as a result of reported emotional, physical and sexual abuse suffered during her foster placement from the ages of 6 to 15 years old.

75. Dr Chau was asked for her opinion on the question of the relationship between the symptoms she detected on examination and the plaintiff’s childhood sexual abuse. She said:

“I opine that the reported trauma sustained by Edwin (sic) and [the plaintiff’s] foster mother/aunt is the major significant contributing factor to the development of her psychiatric injuries. …

Consistent with [the plaintiff’s] claims of childhood sexual abuse at the hands of Edwin, is her reported distress and avoidance of reminders of it such as the name ‘Edwin’, men of similar appearance, her mistrust in men and aversion to sex (leading to marital friction).”

76. Dr Chau thought that the symptoms would be ongoing and would persist long term.

77. Dr Chau suggested that a future regime of treatment which may assist included sessions with a clinical psychologist, the taking of antidepressant medication, and a number of sessions with a psychiatrist.

78. The plaintiff has quantified these costs as totalling $32,900.

Work History

Report of Furzer Crestani Forensic Accountants – 13 March 2023

79. The plaintiff’s solicitors retained Mr Chris Katehos, a director of Furzer Crestani, a firm of chartered accountants who are experienced in this area, to prepare a report quantifying, based on the assumptions they were given, the plaintiff’s past loss of income and future lost earning capacity.

80. Naturally, the calculations depend upon the assumptions under which Furzer Crestani were asked to operate.

81. The key assumptions for the purpose of lost earning capacity were these:

1. from an early age the plaintiff had the intention of pursuing a career in Nursing;

2. the plaintiff’s education was adversely affected by the physical, psychological and sexual abuse which she suffered;

3. had the plaintiff not suffered the physical, psychological and sexual abuse at the hands of [the second and third defendants], the plaintiff would have trained to become a Registered Nurse in NSW and followed a career in Nursing from the age of 21 years until retirement at the age of 70 years;

4. the plaintiff’s injuries would have made it difficult to study, train and work as a Nurse.

82. In addition, the calculations engaged in by Furzer Crestani included the assumption that the plaintiff would have, from one month prior to the birth of her four children, taken six months’ unpaid maternity leave, after which she would have returned to work on a full-time basis.

83. Working on these assumptions and taking the Public Hospital Nurse (State) Award as the likely guide for earnings, Furzer Crestani calculated that the plaintiff’s past income and future income loss, together with superannuation, long service leave and interest would amount to about $3.3 million. Furzer Crestani also calculated that if the plaintiff would, in addition to her Award pay, have received shift allowances and other penalty payments equivalent to 20% of her Award rate, she would have lost about $3.85 million.

84. The plaintiff claims the higher of these sums as representing the true value of her lost economic capacity.

85. In making their calculations, Furzer Crestani took into account any earnings of the plaintiff from work that she did, having regard to such records as exist which provide for the financial year ending 30 June 2013 and subsequent financial years. Although the plaintiff did work at earlier times, records of her earnings during those periods are not available. The effect of this is that Furzer Crestani assumed that the plaintiff did not work at all in the period from 8 January 1986 through to and including 29 August 2012.

86. A further relevant fact which may affect the plaintiff’s economic capacity, was that in 1984, she was struck and injured by a motor vehicle. She ultimately received the sum of $30,000 by way of compensation for consequences of that motor vehicle accident. There is no material before me which describes in any greater detail the injuries suffered by the plaintiff and what the consequences were for the plaintiff’s earning capacity of that accident.

87. In her Statement of Particulars, the plaintiff’s claim for economic loss notes that her education was adversely affected by the “… physical, psychological and sexual abuse …” she suffered. It also notes that her employment prospects were similarly affected. It notes that the plaintiff’s ability to engage in regular, gainful and meaningful employment was impacted. The Statement of Particulars describes the plaintiff’s claim in this way:

“35.   The plaintiff’s injuries and disabilities precluded her from studying to become a nurse, train as a nurse and obtain employment as a registered nurse. Since the abuse, the plaintiff has difficulties working with males and feels distressed when faced with reminders of the abuse for example males of similar appearance to the third defendant … and matters relating to physical contact with men.

36.   The plaintiff claims, in accordance with the Nurse Award Rates, loss of opportunity to earn an income …

37.   The plaintiff claims loss of opportunity to earn income as a registered nurse and, …

…

39.   As a result of her injuries and disabilities, the plaintiff lost the opportunity to work as a nurse until the age of retirement. …”

88. In cases such as the present, where a plaintiff has been subjected to sexual assault whilst a child, and before any history of work capacity has been established, the task of assessing the value of the plaintiff’s lost opportunity to engage in employment, and the remuneration which she would have received, is a complex and difficult task.

89. It is not simply a question of a mechanical and precise mathematical calculation which establishes what a person doing a particular job would have earnt. In part, that is because there is no established work history of the plaintiff, in part it is because the plaintiff’s vocational choices have not had the opportunity to mature and can therefore be considered to be formed as a lifelong vocation or career and also in part because one is assessing a very lengthy period during which a person’s life experiences are certain to change. Here, the Court is being asked to assess the lost opportunity from when the plaintiff was 17 years old until now, being a period of about 40 years, and for a further period of 14 years.

90. As is clear from the description of the plaintiff’s life, which I have set out above, she has in the course of her life been married and has given birth to four children, she has had personal complications arising out of difficulties in that marital relationship, and there have been a series of adverse life events: a motor vehicle accident causing her injuries; the adverse incident in a small country town; the need to leave that small country town as a consequence of the adverse incident; a traumatic and difficult divorce; a complex medical and psychological history over time; and, in particular, chronic back pain from a degenerative condition which, together with the physical limitations and the effect of the chronic pain on her activities, led to her ceasing work in 2019, when she was about 52 years of age.

91. I am satisfied that the consequences of the sexual abuse perpetrated on the plaintiff by the third defendant were significant and were a material contribution to her inability to work in a full-time career. However, as is clear, the consequences of the sexual assault were not the only adverse impacts on her capacity to work and engage in a full-time career.

92. In particular, I note that I am not being asked to assess the plaintiff’s damages on the basis that the care provided to her by the second defendant and the physical abuse perpetrated upon her by the second defendant, are assessable causes of her damages. By that I mean that I am not being asked to assess damages for the effects upon the plaintiff of the behaviour of the second defendant. They were undoubtedly significant contributors to the plaintiff’s mental illnesses.

93. I do not accept that the plaintiff would have been likely to commence a full‑time working career at the age of 21, which would have been in 1988: at that time, she had two children who were born respectively in February 1986 and October 1987; her husband was working full-time and she was engaged in the full‑time care of her children. By 1991, when the plaintiff was about 24 years old, she had four children aged 5 years and under. Again, her husband was engaged in full-time employment and the plaintiff was caring for her four children and living in rural NSW. She was spending and would have spent her time wholly engaged in domestic duties, even if she was qualified as a registered nurse at that time.

94. I do not accept that the assumption which Furzer Crestani was asked to make, that the plaintiff would have spent only six months away from paid employment whilst giving birth to her children, has been supported in the evidence. There is simply no evidence regarding the availability of any childcare facilities in Gilgandra of a kind which could have cared for young children such as the plaintiff’s children, nor is there any evidence of any family support which the plaintiff could have accessed to assist with caring for her children. The evidence does not suggest that her husband, who was in full-time work, was in a position to, or ever offered to, moderate his employment so as to assist in taking care of the children.

88. I think it unlikely that the plaintiff would have attempted to enter the full‑time workforce until sometime around 1996 when her daughter (her youngest child) would have attended primary school on a regular basis. By that time the plaintiff would have been 29 years old. She would then have needed to train for a nursing position which would have involved full-time training and study before entering the workforce. I do not think that, on the probabilities, the plaintiff would have entered the workforce before she was 30 years old.

89. As well, it seems to me that the plaintiff’s chronic backpain, due to her degenerative condition which was sufficient to result in her ceasing employment as a baker in 2019, would have resulted in her ceasing employment as a nurse at the same time.

90. Accordingly, the assumptions put to Furzer Crestani regarding when the plaintiff would have commenced working and if she would have continued working until the age of 70, are not supported on the evidence. In my view, the likely working life of the plaintiff would have been in the order of 22 to 23 years.

91. It follows from that conclusion that no allowance should be made in this assessment for any lost future earning capacity after the date of this assessment and judgment because the physical state of the plaintiff, which was not caused or related to the sexual abuse perpetrated by the third defendant, would have had the consequence that the plaintiff would, in any event, have ceased working at the age of 52.

92. Accordingly, I make no allowance for any future lost earning capacity.

93. In looking at the figures derived by Furzer Crestani for the past loss of earnings, they have been calculated on the basis that the plaintiff’s past working life was for a period in the order of 38 years. However, my assessment of the plaintiff’s working life is that it would have been in the order of 22 years i.e., a period which is about 60% of the period calculated by Furzer Crestani.

94. As well, Furzer Crestani assumed that the plaintiff would have worked full‑time and would not have had any time away from work as a consequence of any illnesses or adverse life events.

95. However, it cannot be overlooked that prior to the sexual abuse occurring, the plaintiff had undergone a series of very traumatic events which, I am satisfied, have contributed (and in a material way) to her ongoing mental illnesses and diagnoses: she had been present at the age of 6 when her stepfather had shot and killed her mother, and then turned the gun on himself; she was orphaned; she was removed from all of her siblings suddenly and without warning; she received no counselling or other assistance to deal with her grief and the consequences of her separation from her siblings; she was put into foster care with her aunt, who (as the plaintiff clearly recalls) treated her very badly indeed – and not just because she was physically abused by her aunt, but because she was also denied loving care, nurture and a proper family upbringing. Again, these are factors which have contributed in a significant way to her mental illness.

96. None of these effects and consequences can be said to have been caused by any of the third defendant’s conduct, but, having regard to their serious impact, I am satisfied that they would have been likely to have been adversely affected the plaintiff’s working career. Nor can one be certain that they would have, nor can one identify at what time or for what period they might have, impacted her working career. Nevertheless, I am satisfied that these events would have had an impact, and a significant impact, on her career at some stage.

97. In my view, the correct way to approach the impacts of these matters is to make an allowance by way of the vicissitudes of life which I assess on a broad basis as being the likely impact of those events on the plaintiff’s working career.

98. In my view, an appropriate assessment would be in the order of 30% i.e., without regard to the consequences of the conduct of the third defendant, the plaintiff’s working career would have suffered interruptions and periods when she was unable to work and earn money amounting to about 30% of the time which she would, unaffected by the third defendant’s conduct, otherwise have worked.

99. Applying the adjustment for a shortened working career of 22 years or so, and for the vicissitudes of life to the past loss of income calculated by Furzer Crestani results in a past loss of income sum, including interest, between $903,000 and $1,063,000.

100. I assess the plaintiff’s past loss of income as being $1,000,000, inclusive of interest. It is necessary to add to that figure an allowance for superannuation and long service leave. In my view an appropriate allowance is in the order of a further $200,000. I make that general allowance because it may not have been possible for the plaintiff to have worked in her career with one employer and, accordingly, the accumulation of long service leave may have been less than if she had worked with one employer for the whole period (which is the basis of the Furzer Crestani calculation) and superannuation would need to take account of any adverse impact upon her working career of the other adverse life events described above.

General Damages

108. It is necessary to assess a sum for general damages which is to cover all of the non‑economic consequences of the conduct of the third defendant. I have earlier described all of the consequences of the plaintiff’s childhood, which includes the consequences of the third defendant’s conduct. It is necessary to keep in mind that many of those consequences have also been the result of other causes and the plaintiff may well have sustained some of these adverse consequences in any event.

109. I note that this assessment of general damages is one to be conducted according to the Common Law and is not restricted by any of the statutory schemes of compensation which presently exist.

110. I note, however, that if damages were to be assessed for non-economic loss in accordance with s 16 of the Civil Liability Act 2005, the current maximum amount which a Court could award is $722,000. The maximum award for non‑economic loss and damages arising from motor vehicle accidents at present is $620,000.

111. In my view, a proper award of general damages to the plaintiff for the conduct of the third defendant is $400,000. The plaintiff would be entitled to interest on this amount. The conventional calculation of such interest is 2% on the proportion of that sum accrued to date. In my view, that proportion should be 75% because the time since the events occurred means that the plaintiff has suffered the bulk of the consequences of the third defendant’s sexual assaults by now. Without being precise, this would result in an amount of about 60% (accumulating a simple interest amount) on three quarters of the amount for general damage. In broad terms, this would be an amount of $180,000. However, that allowance is likely to underestimate the true effect of interest and, accordingly, I assess lost interest at $200,000.

Summary

112. Accordingly, based on the assessments which I have described, I would assess the plaintiff’s damages as a consequence of the third defendant’s conduct in the following sums:

General Damages	$400,000
Interest on past General Damages	$200,000
Past lost earning capacity (including interest)	$1,000,000
Lost superannuation and long service leave	$200,000
Cost of future psychological treatment	$32,900
TOTAL	$1,832,900

Orders

113. I make the following orders:

1. Judgment for the plaintiff against the third defendant in the sum of $1,832,900.

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

3. Liberty to apply.

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Decision last updated: 29 February 2024