Paten v Bale - [1999] QSC 317

IN THE SUPREME COURT
OF QUEENSLAND

Writ No. 8921 of 1998

Before Wilson J
[Paten v Bale]
BETWEEN:              TONI MARIE PATEN
  Plaintiff
AND:  HENRY VALENTINE BALE
  Defendant

REASONS FOR JUDGMENT - WILSON J
Delivered the 19th day of October 1999

The plaintiff claims damages for assault. An interlocutory judgment was entered, and after an unsuccessful application to set it aside the matter proceeded to an assessment of damages. At the hearing on quantum the defendant appeared without legal representation, and declined to lead evidence or to make submissions about quantum.
The plaintiffs claim relates to five separate assaults in relation to each of which the defendant was found guilty of indecent dealing and sentenced to a term of imprisonment.
The plaintiff was born on 26 January 1979. The assaults took place over a two year period between 24 December 1985 and 31 December 1987, ie when she was aged almost seven to almost nine. At the time she was living with her father and grandmother. The defendant, a family friend, was living over the road with his wife.
In an affidavit sworn on 30 June 1999 the plaintiff said that there had been very many incidents of abuse. She set out six of them, the last five of which formed the basis of the criminal charges and the basis of the claim for damages. She described the incidents as follows:-
Incident 1
(a)While alone in the defendants house, he got me to sit on his knee and showed me explicitly pornographic books depicting male and female persons having sex. I recall that the men in the pictures were coming. The defendant told me that this was what he wanted me to do.
Incident 2
b)The defendant called me into his bedroom and felt my vagina through my panties. He then felt my nipples. Finally, he took my panties off and licked my vagina. When he finished, he threatened me that he would hurt me if I told anybody.
Incident 3
(c)I went to the defendants place to get some butter for my nanna. The defendant sat me on his knee and felt the inside of my thigh and my vagina through my panties.
Incident 4
(d)I went to the defendants house and he showed me some pornographic magazines. He then took me to the bedroom and played with my clitoris while placing my hand on his penis and making me masturbate him by moving my hand up and down
Incident 5
(e)I went to the defendants house and he took me to the front bedroom where he made me lay on the bed with my legs hanging over the end. He spread my legs apart, pulled my panties off and licked my vagina. He wouldnt stop despite me asking him to.
Incident 6
(f)On or close to my eighth birthday, the defendant had me sit on his lap and started feeling my chest. He slipped my swimming togs aside with his other hand and I felt something go into my…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Paten v Bale

Details

AGLC: Paten v Bale [1999] QSC 317
Case: [1999] QSC 317
Decision Date: 19 October 1999

CaseChat Overview and Summary

Toni Marie Paten sued Henry Valentine Bale for damages arising from five separate incidents of sexual assault that occurred when the plaintiff was a child. The incidents led to the defendant being found guilty of indecent dealing and sentenced to imprisonment. The defendant appeared unrepresented at the hearing for the assessment of damages, declined to lead evidence, and made no submissions on quantum. The court considered the nature of the injuries and trauma caused by the assaults, as well as the plaintiff's subsequent psychological conditions, in assessing damages. The court found that the first assault caused the greatest injury, which was aggravated by the subsequent assaults. The court apportioned the damages, awarding 80% for the first assault and 5% for each of the subsequent four assaults. The court rejected the plaintiff's claim for aggravated damages, finding that the criminal proceedings were conducted properly, and the defendant's conduct in the civil proceedings was not reprehensible enough to warrant such damages. The court assessed damages for pain and suffering and loss of amenities at $35,000, along with interest on half of that amount for 10 years. For loss of earning capacity, the court assessed past economic loss at $15,000 and future economic loss at $120,000, along with interest. The court also awarded special damages and the cost of future treatment. The defendant was ordered to pay the plaintiff's costs of and incidental to the action.

The court ordered the defendant to pay the plaintiff's costs of and incidental to the action, including reserved costs on the standard basis.

Orders