Paten v Bale

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 vagina. I looked down and his hand was on my vagina.
She went on:-
8.Because I was young at the time and scared of what the defendant would do to me and my family, I didnt report the incidents to anybody. I subsequently reported the incidents to my father in January, 1996 as I gradually grew up and became strong enough to tell him. I made a statement to the police on 1 July 1996 and a further statement on 8 July, 1996. ...
Committal proceedings took place in December 1996. The defendant was tried and convicted in the District Court in October 1997.
The plaintiffs parents separated when she was aged about three, and she went to live with her father and grandmother. Her father has said that in about 1987 (when she was aged about eight) she became moody without any apparent reason. This was in the period in which the assaults took place. When she was about 10 she would yell out in her sleep; she would cry at night and wake him; she would cry in the day inexplicably.
She completed her schooling at the end of 1994 having done Year 10 at the Bribie Island State High School. Thereafter for a couple of months she had employment in cold food preparation at the Noosa Reef Hotel, working three or four times a week, and then several months training to be a manager at a fast food outlet at Noosaville where she worked six days a week and work as a cook at the Birdsville Hotel restaurant where she worked about seven days a week. Since early 1996 she has been living with her boyfriend Frank Tozer. They seem to have moved about considerably. Between May and July 1996 she worked as a cook in a service station at Longreach. Since July 1996 she has been basically unemployed. She has had a very small amount of casual work in the hospitality industry. She received New Start Allowance and from mid June 1999 Sickness Benefits. At the time of the hearing in July 1999 she had just commenced working part time with her mother on one months trial at the Burpengary Tavern. At the time of the hearing the plaintiff was not being paid for this work which was more in the nature of work experience.
Her boyfriend said that in the early days they had a healthy sex life. She had a miscarriage in early June 1996 (at the age of 17). About that time she told her boyfriend about what the defendant had done to her. She was very upset and she was unable to participate in sexual relations for the next three months. Although their physical relationship subsequently resumed it has not been as it was before.
In her affidavit the plaintiff said:-
24.My whole outlook to life has been affected by the assaults. I find myself without a goal. I am searching for a purpose. Before the assaults occurred, I remember thinking that one day I could be a chef. Since the assaults, those dreams have dissipated. I just cant get myself to think of myself as being successful at anything or amounting to anything.
25.I am angry about what the defendant has done to me. I cant believe he was allowed to do it, or that he thought that he was allowed to do it. The fact that he went to jail helps, but I will never be the same person after what he has done to me. I still feel that I sometimes see him in the street. I even have trouble sleeping at night thinking about him. I cant even go to visit my grandmother because the defendant lives just across the road.
26.I feel guilty, somehow thinking that I contributed or caused the abuse. I know that I couldnt have really done anything but I still feel that perhaps I should have tried to do something more, particularly to stop other children being abused by the same man.
27.After the assaults, I became a withdrawn child and really didnt have too many friends. I have trouble even dealing with my parents and people in general.
28.When depression sets in, I feel suicidal. I cry all the time, I get irritable and argumentative. I think my self esteem is very low. I realise that I need help and I am prepared to see psychiatrists, as I have been for the last couple of years. Unfortunately, I dont have any money and I think I can get better and faster treatment if I can just get some money and pay the psychiatrist to spend the time on me.
29.I feel uncomfortable about sex. Although I became sexually active at an early age (16) I never really enjoyed it. Even with my current fiancé, we have constant arguments about the fact that I dont like to have it very often, whereas I consider that he does. This creates tension which leaves me depressed thinking that I am not satisfying him.
30.Between 1996 and 1998, I took anti-depressants. ...
31.I just dont feel motivated to do anything. Even my concentration span is very limited. I feel like my whole life is worth nothing. I really want to get better but I just dont know how.
She consulted a general practitioner, Dr McNally, about depression on a number of occasions. The first time was in 1993 when she was aged 14. She went back to him in June 1996 and he referred her to Dr Peter Field, a psychiatrist. Dr Field identified three crises in her life:-
(a)the miscarriage;
(b)the illness of her grandmother; and
(c)her concern about the pending court case against the defendant.
She went back to Dr McNally in March 1997 and again in March 1998.
At the end of March 1998 the plaintiff was interviewed by Dr Peter Mulholland, psychiatrist, for medico-legal purposes. At that stage he diagnosed a depressive illness which was longstanding and the reasons for which were multi factorial -
(a)parental separation and the loss of her mother;
(b)ongoing sense of neglect and rejection by her mother;
(c)sexual abuse;
(d)loss of several friends in a motor vehicle accident and one murder.
He identified the sexual abuse as being responsible for about a third of the depression. The depression was having an effect on her presentation at job interviews and probably the main reason for her unemployment. He also diagnosed a sexual aversion disorder which was entirely due to the sexual abuse. In his opinion she required treatment for both conditions. He was very cautious in his prognosis saying there was about a third possibility that she would make a reasonably good recovery, a third possibility that she would stay much the same and a third possibility that she would continue to have significant emotional psychopathology and sexual psychopathology.
Subsequently the plaintiff received psychotherapy. She attended as an outpatient at the Prince Charles Hospital between April and July 1998 and again in November 1998, and attended sessions with the Aspley Team of the Prince Charles Hospital Integrated Mental Health Service from January 1999. In June 1999 she went back to Dr Mulholland. He diagnosed:-
(a) chronic post traumatic stress disorder probably mostly due to the sexual abuse;
(b)chronic depressive disorder probably partly due to the sexual abuse;
(c)sexual aversion disorder probably entirely or predominantly due to the sexual abuse; and
(d)unspecified personality disorder probably partly due to the sexual abuse.
He considered that there would be a need for treatment indefinitely and that there were likely to be relapses of depression which might require hospitalization. In his opinion her personal psychological functioning, social functioning, ability to maintain relationships, sexual functioning and occupational functioning were all likely to be adversely affected for the indefinite future. He thought she had a 20 per cent impairment of the whole body and was likely to be in the same state in 10 years time. Her future employment prospects were very limited.
The plaintiffs own outlook is a little more positive. She said she hopes to marry her boyfriend and to have children in about five years time.
The plaintiff has brought an action for damages against the defendant for five assaults, and I am obliged, as best I can, to award damages in respect of each incident, on the basis that each constituted a separate tort. There is a certain unreality about this, because the abuse was ongoing, and the incidents in relation to which the plaintiff has sued (being the same as those in relation to which the defendant was convicted) are representative only. Moreover the evidence scarcely distinguishes between the incidents with respect to the plaintiffs injuries. The problem was touched upon in an article by Feldthusen The Canadian Experiment With the Civil Action for Sexual Battery in Mullany (ed) Torts in the Nineties[1] I have been able to find surprisingly few Australian cases on the assessment of damages for assault in this context. [2] It seems not to have been resolved in other common law jurisdictions. I have found several cases where the issue has been addressed in the context of criminal compensation legislation,[3] but of course those cases are not determinative of the issue in torts.
[1](LBC Information Services 1997) 274 at 281-282.
[2]See Bird v Bool (SC (Qld), Derrington J, W815 of 1995 16 October 1997, unreported) and In theMarriage of W; W and R and G (Brown J of Family Court of Australia (1994) 117 FLR 320. In neither case was there any attempt to make separate assessments with respect to each tort.
[3]Eg ReApplication for Criminal Compensation (1991) 103 FLR 297; A (1994) 73 A Crim R 56
Doing the best I can on the material before me, and adopting a broad and commonsense approach, I consider that it is likely that the first assault resulted in the greatest injury to the plaintiff, and that the initial injury was aggravated by the subsequent assaults. I propose apportioning 80 per cent of the damages to the first assault and five per cent to each subsequent one.
The plaintiff made no claim for exemplary damages. This was the correct approach given that the defendant had already been punished by the criminal law. [4]
[4] Gray v Motor Accident Commission (1998) 73 ALJR 45.
The plaintiff claimed aggravated damages. These are usually given to compensate for the harm done to a plaintiff by a wrongful act that was aggravated by the manner in which it was done[5]; The submission related to the trauma suffered by the plaintiff at the time of the criminal proceedings and again in relation to these civil proceedings. I accept that the committal and criminal trial proceedings were traumatic experiences for the plaintiff, but there is no suggestion of any impropriety in the conduct of the defence of those proceedings. The defendant pleaded not guilty and was convicted only after a jury trial. It is a fundamental principle of our legal system that an accused person is innocent unless and until proved guilty, and he cannot be held liable in damages for the exercise of that right.
The plaintiff then focussed on the defendants conduct in relation to these civil proceedings. He denied liability and accused the plaintiff of having told lies at the committal. As the result of an interlocutory application the plaintiff obtained judgment for damages to be assessed. The defendant subsequently sought unsuccessfully to have that set aside. He continued to maintain that he had not committed the assaults. However, insofar as the defendants conduct in relation to the civil proceedings has been reprehensible, the plaintiff has been compensated in orders for costs. And of course in assessing compensatory damages for pain and suffering, I have taken into account trauma associated with reviving the memories of what happened. In all the circumstances I do not consider that this is a case for aggravated damages[6].
[5]See Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118.
[6]c.f. Coyne v Citizen FinanceLimited (1991) 172 CLR 211 at 237.
I have assessed damages for pain and suffering and loss of the amenities of life at $35,000. I allow interest on half of that amount for 10 years at 2% per annum, ie $3,500.
Since leaving school the plaintiff has had a net income of $36,197.20, including $19,209.84 in social security benefits, most of them unemployment benefits. I was informed by her counsel that there is no question of any refund being due to the Department of Social Security. It was submitted that damages for loss of earning capacity should be assessed by reference to the award wages payable to apprentice chefs and qualified chefs. Such an apprenticeship is of four years duration and the average net wages now payable to an apprentice are $250 per week. In assessing past economic loss I have commenced with an assessment of three years loss at $250 per week ($39,000). From this I have deducted the actual receipts over the last three years (approximately $18,000) and then discounted for contingencies to arrive at a figure of $15,000. I allow interest for three years at five per cent per annum, i.e. $2,250.
I do not consider it would be appropriate to assess future economic loss on the basis of a total and permanent loss of earning capacity. Rather I think there will be periods when the plaintiff is employed, sometimes full time and sometimes part time. There will probably be periods when she is out of the work force for reasons other than the consequences of the assaults (eg child rearing). The minimum award wages payable to a qualified chef are $373.55 net per week. A loss of $200 per week over 20 years discounted at five per cent would come to $133,280. That should be discounted further for contingencies. In the circumstances I allow $120,000.
In his submissions the plaintiffs counsel did not ask for a separate assessment for loss of superannuation benefits past or future.
Special damages come to $32.
There is a need for future treatment for the depression and the sexual aversion disorder. The cost of this will depend on the amount of treatment undertaken and whether there are relapses in the future. Having regard to the evidence of Dr Mulholland, I assess this at $7,5000.       In summary, I assess damages as follows:
Pain and suffering  $35,000.00
Interest on past pain and suffering  $3,500.00
Past economic loss  $15,000.00
Interest on past economic loss  $2,250.00
Future economic loss  $120,000.00
Special damages  $32.00
Cost of future treatment  $7,500.00
$183,282.00
==============
I apportion $146,625.60 to the first assault and $9,164.10 to each of the subsequent four assaults.
I order the defendant to pay the plaintiffs costs of and incidental to the action including reserved costs on the standard basis.
IN THE SUPREME COURT
OF QUEENSLAND
Writ No. 8921 of 1998
Before Justice Wilson
[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
CATCHWORDS:     DAMAGES - personal injury - five separate sexual assaults for which defendant was convicted and imprisoned - assaults representative only - necessity of assessing damages for each assault - no aggravated damages awarded
Bird v Bool (SC (Qld), Derrington J, W815 of 1995, 16 October 1997), considered
In the Marriage of W; W and R and G (1994) 117 FLR 320, considered
Re Application for Criminal Compensation (1991) 103 FLR 297, considered
A (1994) 73 A Crim R 56, considered
Gray v Motor Accident Commission (1998)73 ALJR 45, followed
Uren v John Fairfax & Sons Pty Ltd (1996) 117 CLR 118, considered
Coyne v Citizen Finance Ltd (1991) 172 CLR 211, distinguished
Counsel:Mr AJ Macklin for the plaintiff
Solicitors:  Quinn & Scattini for the plaintiff
The defendant appeared on his own behalf
Hearing Dates: 15, 23, 27 July 1999

[1999] QSC 317

19 October 1999