Patterson (a pseudonym) v Smith (a pseudonym)
[2024] VCC 1388
•17 September 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
| CHARLOTTE PATTERSON (A PSEUDONYM) | Plaintiff |
| v | |
| EVAN SMITH (A PSEUDONYM) | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 August 2024 | |
DATE OF JUDGMENT: | 17 September 2024 | |
CASE MAY BE CITED AS: | Patterson (a pseudonym) v Smith (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1388 | |
REASONS FOR JUDGMENT
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Subject:PERSONAL INJURY
Catchwords: Assessment of damages – intentional tort – child sexual abuse – pecuniary loss
Legislation Cited: County Court Civil Procedure Rules 2018
Cases Cited:Comensoli v O’Connor [2023] VSCA 131; Planet Fisheries Pty Ltd v La Rosa (1968)119 CLR 118; Victorian Stevedoring Pty Ltd v Farlow [1963] VR 594
Judgment: Judgment for the plaintiff.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms F Spencer SC with Ms B King | Bowman & Knox Lawyers |
| For the Defendant | No Appearance |
HER HONOUR:
1The plaintiff brings this claim for damages against the defendant for injuries caused by the intentional tort of sexual assault.
2The plaintiff claims that, between about 2003 and 2007, the defendant sexually abused her by touching her vagina on a number of occasions. She was approximately four to five years old at the time this abuse commenced. The plaintiff also witnessed the sexual abuse of her sisters.
3As a consequences of the sexual assault on her and her knowledge of the sexual assault of her sisters, the plaintiff has suffered a diagnosable psychiatric condition, being post-traumatic stress disorder (“PTSD”), anxiety and depression.
4The plaintiff claims general damages for pain and suffering, pecuniary loss arising from a loss of earning capacity, medical and like expenses, aggravated damages and costs.
5The plaintiff served the Writ and Statement of Claim on the defendant on 2 September 2022. The defendant is currently serving a term of imprisonment. He did not enter an appearance or defence.
6On 29 May 2024, judgment in default of appearance was entered pursuant to Order 21 of the County Court Civil Procedure Rules 2018 (“the Rules”).
7On 31 May 2024, orders were made setting the matter down for assessment on 30 August 2024 and requiring the defendant to file any affidavits upon which he sought to rely by 23 August 2024, and to file any notice to attend for cross-examination no later than 27 August 2024.
8No affidavit or notice to attend for cross-examination was filed by the defendant. The defendant was notified of the assessment hearing and a link for the defendant to attend remotely was sent to the prison where he is incarcerated. The proceeding was delayed until the prison could accommodate the video link. The proceeding was further delayed for ten minutes after the start of the video link to allow an additional opportunity for the defendant to appear. There was no appearance from the defendant.
9Pursuant to Order 40.05 of the Rules, I granted leave for the plaintiff to tender and rely on the reports of Dr Leon Turnbull, occupational and forensic psychiatrist, without requiring the author of those reports to attend for cross-examination.
10At the commencement of the hearing, I made orders that the assessment of damage proceed before me, pursuant to Order 23.03(3).
Background
11The first instance of sexual abuse the plaintiff remembers occurred when she was in a bedroom at the defendant’s home. She recalls the defendant grabbing for her vagina. She remembers rolling over repeatedly to avoid his hands, which caused him to “huff and groan” which she perceived as irritation at her attempts to shield herself.
12On another occasion she recalls waking up to find her pyjama pants off and the defendant touching her vagina when she was about seven years old. She remembers another occasion when she woke up and the defendants attempting to take her pants off. The plaintiff recalls there were other occasions of abuse, but cannot remember specific details. She does not know whether the defendant abused her on occasions when she was asleep and did not wake up.
13When she was about nine years old, the defendant exposed his penis to her during a family gathering. She describes being shocked and walking away.
14When she was about eight or nine years old, her younger sister told her that the defendant had touched her private parts and put her hands on his penis. After that disclosure, the plaintiff “made sure” that her sister was never sleeping in a room by herself when the defendant was around. However, there were at least four occasions when, staying at the defendant’s house and sleeping in the same room as her younger sister, she woke to find the defendant in the room touching her sister. She describes that, when she stayed at the defendant’s house, she was “petrified the whole day and would barely sleep”.[1]
[1] Plaintiff’s Court Book (“PCB”) 22 at paragraph [10]
15On one occasion, the defendant said to the plaintiff that, if she told her grandmother what was happening, he would not make her pancakes.[2]
[2] Transcript (“T”) 62, Lines (“L”) 13
16After the death of the plaintiff’s grandmother in 2014, the defendant’s conduct “ramped up and was a thousand times worse”.[3] The plaintiff managed to avoid staying at the defendant’s house after this time.
[3] Plaintiff’s affidavit, PCB 152 at paragraph [19]
17The plaintiff felt “stalked” by the defendant during the period 2014-2015. The plaintiff recounts that the defendant would regularly ring the family home. The plaintiff recalls the unique ringtone of the defendant calling the house and that it was “indelibly printed in [her] consciousness”.[4]
[4] Plaintiff’s affidavit, PCB 152 at paragraph [20]
18On occasions, he would mistake the plaintiff for her youngest sister and say things that made the plaintiff suspect that he was, or might be, abusing her youngest sister, for example, referring to their “special cuddles”.
19The defendant particularly wanted to stay at the family home when her father was away on business trips.
20The plaintiff says there were many occasions when the defendant came to stay at her home where she would wake up to find the defendant in the room she shared with her younger sister. She has a clear memory that, in about 2011, she was sharing the bottom double bed of a bunk bed with her younger sister and woke to see the defendant leaning through the gap at the end of the bunk with his hand between her sister’s legs “grabbing” her vagina. She recognised it as the same thing he had done to her. She asked him what he was doing and he left the room.
21She noticed that when the defendant stayed at her house he took a particular interest in where her youngest sister was going to be sleeping. On one night, her youngest sister was sleeping on the top bunk of her room, above the double bunk she was sharing with her immediately-younger sister. She had set up a barricade using a piano stool and some chairs to stop the defendant from entering the room. She woke up to the defendant pushing through the furniture barricade. She asked him what he was doing and he left. However, he returned again shortly after and she told him to leave. A few hours later, she again woke and saw him climbing the ladder to where her youngest sister was sleeping. She told him to get down and went to get her parents. By the time her parents returned, the defendant returned to his own bed and pretended to be asleep.
22When confronted about his behaviour by her father the defendant pretended he was sleepwalking or was otherwise confused.
23The plaintiff recounts having to set up furniture and toy barricades on several other occasions to act as a warning and deter the defendant. When the defendant stayed at their house, she would spend whole nights awake out of fear of the defendant entering her room. She describes getting “zero sleep” on those nights.
24On one occasion, her father asked her whether the defendant had ever done anything to her or her sisters. She says she denied the defendant had done anything as she was scared, but later told her father that she had seen the defendant touching her immediately-younger sister.
25She said her father said words to the effect “this is going to create a shitstorm”, but to her knowledge he did not do anything further. When she asked him about this conversation later, to her perception, he brushed it off as if nothing had happened.
26On one occasion in early 2016, when the defendant was staying at her house, she became aware that her youngest sister was alone in a bedroom with the defendant. She told her father, who quickly jumped up and ran downstairs. The defendant and her youngest sister exited the bedroom, giving different accounts of what they had been doing in the bedroom.
27In mid-2016, her immediately-younger sister brought to the plaintiff’s attention a screenshot of a note their youngest sister had written on her phone. This note appeared to the plaintiff to be a suicide note in which her youngest sister alleged that the defendant had raped her. She confronted her youngest sister about the note, but the youngest sister did not explain what she had meant.
28Eventually, the plaintiff’s youngest sister did report the her own abuse to her mother and a doctor and this led to a complaint to the police. The plaintiff made a statement to the police at that time.
29The defendant was charged with offences against the plaintiff and both her sisters. He denied the charges and the matter went to a contested trial. The plaintiff was required to give evidence and be cross-examined during the committal hearing. When the matter proceeded to trial at the County Court, the plaintiff was required to give evidence and be cross-examined again. The trial occurred during the COVID-19 restrictions, which meant it was beset by delays, and also meant that few people could attend, including people who might have been able to provide support for the plaintiff.
30The criminal trial was a traumatic experience for the plaintiff. Although she hoped it would provide her with a sense of resolution or a therapeutic effect, that did not happen.
31After the defendant was charged, the defendant’s family members, excluding the plaintiff’s parents, supported the defendant. The plaintiff says that those family members “were absolutely slandering our character as people, saying that it was all because we were wanting attention and, um, promiscuous, that sort of thing”.[5] As a result, the plaintiff has no contact with that side of the family. This has caused the plaintiff considerable distress, as she previously had a good relationship with her cousins, and now no longer communicates with them.[6]
[5]T24, L19-22
[6]PCB 154
Assessment of damages
32The principles of awards of damages are well known. A plaintiff who has been injured by the tortious act of a tortfeasor is entitled to damages to put them back, as nearly as possible, to the same position as if they had not sustained the injury.
33By his failure to enter an appearance or defence, the defendant is taken to have admitted the allegations of assault and admitted the damage claimed.
34Awards of damages in other trials may provide some assistance in undertaking the assessment, but ultimately each case will turn on its own facts and circumstances.
35In the case of Comensoli v O’Connor,[7] the Court of Appeal upheld an award of general damages of $525,000 made at first instance. The plaintiff in that case had been sexually assaulted by his parish priest over a number of years and as a consequence began to consume alcohol excessively, engaged in criminal offending and led a life that was very far from the expected course of his life as a happy child who was good at school and sport, served as an altar boy and loved the church. His life trajectory was very different from the plaintiff in this case, and the award of damages is to compensate for the severity of the consequences, not the severity of the offending. Nevertheless, the decision of the Court of Appeal demonstrates a recognition that the consequences of sexual abuse during childhood can be both indirect and far-reaching.
[7][2023] VSCA 131
36The damages awarded must be proportionate to the injury and its consequences as established on the evidence.[8]
[8]Planet Fisheries Pty Ltd v La Rosa (1968)119 CLR 118 at 125
General damages for pain and suffering
37I have read and rely on the reports of Dr Turnbull, who assessed the plaintiff for medico-legal purposes.
38The plaintiff has suffered psychologically as a result of the abuse and as a result of her misplaced sense of guilt at not being able to protect her younger sisters from the abuse. It goes without saying that the responsibility for the abuse rests entirely with the defendant and the plaintiff has no responsibility for any of her own abuse or the abuse of her sisters.
39Nevertheless, one can well understand that her attempts to protect her sisters, and her inability to do so, is a significant source of the pain and suffering she has experienced. Those attempts included trying to ensure that her sisters were not alone with the defendant, setting up a barricade in her bedroom to stop the defendant from coming in without waking her up, telling the defendant to leave when she found him in her bedroom, telling her parents that the defendant had been in the bedroom, asking the defendant why he had come into the bedroom, and telling her father that the defendant had touched her sister.
40The persistence of the defendant and his determination to offend against both the plaintiff and her sisters is apparent given that that plaintiff’s efforts to deter him did not succeed.
41As a result of her injuries the plaintiff had counselling for about five years and found the sessions very helpful. Ultimately, she could no longer continue with counselling due to financial constraints.
42She was diagnosed with PTSD and a depressive disorder.
43The plaintiff experienced nightmares of her abuse from a young age that have persisted into her adult life, now occurring approximately once a fortnight. She has sleep difficulties, including difficulty staying asleep and early waking. She sometimes takes melatonin to assist.
44As a result of her sleep difficulties, she is often tired. She says the consequences of the abuse, in particular her difficulties with sleep, impacted her education. She said that when the defendant stayed at her house she could not sleep and the effect of sleep deprivation on her mental health was “horrible”.
45Although she had always been a good student she found herself distracted and distressed. She became suicidal and engaged in self-harm. She had tumultuous friendships.
46She achieved a lower ATAR than expected, albeit that she still did well enough to get into university. She completed her degree and enrolled in a Masters of Social Work. She was unable to complete that degree because she was “exhausted” and unable to fully concentrate.
47To her great credit, she has been able to fulfill her ambition to work in the area of child protection. However, the abuse has impacted on her capacity to work with clients, particularly abused children, given her own past experience and diagnosis. As a result, she works in a policy role. She has difficulty concentrating and staying motivated. She finds that anything to do with sexual abuse or child abuse “is triggering”.[9]
[9]T20
48I have no difficulty accepting her evidence that the sort of work she would ideally like to do is not, at least at the moment, available to her by reason of her injuries. I have no difficulty accepting the injuries she suffers are likely to have an impact on her career, both in terms of the availability of career paths and the remuneration she can obtain. Her exhaustion and difficulties with concentration and motivation may, in the future, result in her progressing less quickly to promotions and being unable to take opportunities that arise.
49I have no difficulty accepting that, but for the abuse, the plaintiff would have attained even higher educational qualifications and had greater professional options available to her. Her predicted ATAR placed her among the very highest students in the State. Her achievements in the context of the abuse and her psychiatric injuries, while significantly lower than she hoped and expected, demonstrate that she was, and is, an extremely-able student who could have, but for the abuse, pursued any degree of her choosing.
50In her personal life, the plaintiff continues to have challenges in trusting others, particularly older men and male partners, and this affects her relationships and intimacy. She was in a coercive relationship for an extended period during her adolescence.
51She is hypervigilant, tense and anxious. She is self-protective and protective of others. She recalls “those seemingly endless nights as a middle teen”[10] have conferred a pattern of hypervigilance.
[10]PCB 154 at paragraph [33]
52She has emotional lability and extremes at “both ends of the spectrum”. She feels that her emotions and feelings continue to be “up and down”.[11]
[11]Ibid
53She has used antidepressant medication, but found that an unwanted side effect was that she could not experience pleasure, so she has ceased this.
54The consequences the plaintiff describes, including self-harm, feelings of guilt, depression, and anxiety and hypervigilance, are unfortunately common sequalae of childhood sexual abuse.
55The plaintiff has the added burden of being the oldest sister, witnessing the abuse of her younger sisters, trying to protect them, and feeling unable to prevent the defendant from harming them.
56I have no difficulty accepting that the committal and trial were traumatising events for the plaintiff, and that the reaction of some family members has also added to the pain and suffering she has experienced. These are consequences that were caused by the offending of the defendant.
57No amount of financial compensation can put the plaintiff in the position she would have been in had the abuse not occurred. It is now widely accepted that sexual abuse, particularly in childhood, has effects and impacts on the victim that cannot always be readily identified or quantified. It is likely that, notwithstanding the enormous efforts the plaintiff has made to complete her undergraduate education and pursue a career path, the injuries inflicted upon her by the defendant will continue to impact her life.
58I am mindful that the plaintiff was very young at the time she first experienced the abuse and that the role of the abuse in forming her memories and perceptions of her childhood has been profound. As a result of her very young age, she has lived with the repercussions of the defendant’s actions for more than twenty years already, and will continue to live with them for many decades to come.
59I consider an amount of $420,000 is appropriate to compensate the plaintiff for her pain and suffering in the past and into the future.
Aggravated damages
60In addition, I consider the plaintiff is entitled to a sum for aggravated damages. The conduct of the defendant in sexually abusing the plaintiff was aggravated by the fact that it took place in his home, and at her home, two locations where she should have felt safe and where she should have been provided a sanctuary. The offending also occurred in proximity to family members, often when they were in the house or very close by. The offending took place, on occasion, in the plaintiff’s bedroom, while she was asleep. She would wake to find the defendant already offending against her or her sister. The defendant is the plaintiff’s own grandfather, a person who should have the plaintiff’s best interests at heart. In particular, the defendant’s conduct in coming repeatedly into the bedroom, despite the plaintiff’s attempts to barricade her room, pretending to be sleepwalking when confronted by the plaintiff’s parents, and his threat to not tell her grandmother or he would not cook her pancakes, amount to aggravating conduct.
61I consider an amount of $30,000 to be an appropriate sum in aggravated damages.
Pecuniary loss
62The plaintiff claims a modest sum for past pecuniary loss, representing her loss of wages during the period of the criminal proceedings when she was unable to continue with full-time work, in the amount of $1,600. I am satisfied that this is a past loss the plaintiff incurred by reason of her injuries.
63I am satisfied that the plaintiff will suffer a future loss of earning capacity. It is not possible to quantify that loss, given the plaintiff’s young age. However, I am satisfied that an award of damages for pecuniary loss is appropriate pursuant to the principles enunciated in Victorian Stevedoring Pty Ltd v Farlow[12] . As set out above I am satisfied that the plaintiff’s injuries will mean that the range of opportunities available to her will be more circumscribed, and her injuries will impact on her ability to complete post graduate qualifications. I consider an amount of $150,000 represents a reasonable award for her loss of earning capacity.
[12][1963] VR 594
64The plaintiff also makes a claim for medical and like expenses past and future. These comprise past expenses for medication of $948, and future costs for medication and psychological treatment on a fortnightly basis, which, after applying the appropriate multiplier, comes to $15,872. The plaintiff relies on the report of Dr Turnbull to support her claim for future psychiatric services. I am satisfied, on the basis of Dr Turnbull’s report, that the plaintiff will benefit from psychological treatment and consider an allowance of $15,900 for future medical expenses is appropriate and award in an amount of $950 for past medication.
65The plaintiff also seeks her costs fixed in the amount of $39,420. Fixing costs at this point has the advantage of facilitating recovery of a judgment debt, although it carries with it the risk that the plaintiff will not be able to recover future unanticipated costs arising after the date of judgment. Nevertheless, in the circumstances of this case, I consider it is appropriate to fix costs, rather than order costs to be assessed. This is because the defendant is currently incarcerated and is elderly, and delay in recovering on the judgment is not in the interests of justice.
66It is not the role of this court to replace the role of the costs court in assessing costs. In this case, having regard to the work done, I consider fixing the costs in the amount of $39,000 is reasonable. Engaging Senior Counsel to represent the plaintiff at the trial assessment was warranted, given the particular complexity of this assessment and the high damages sought.
Orders
67Judgment will be entered for the plaintiff as follows.
68The defendant is to pay the plaintiff the amount of $657,450, which is made up of:
(a) $450,000 for pain and suffering damages, including aggravated damages;
(b) past pecuniary loss in the amount of $2,550;
(c) future pecuniary loss in amount of $165,900, made up of:
(i)$150,000 for future loss of earning capacity; and
(ii)$15,900 for future medical and like expenses
(d) costs fixed in the amount of $39,000.
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