Perry v Kinnear (No. 5)

Case •

[2021] NSWDC 145

•

30 April 2021

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: Perry v Kinnear & Ors (No. 5) [2021] NSWDC 145
Hearing dates: 24 August 2020
25 August 2020
26 August 2020
27 August 2020
28 August 2020
14 September 2020
15 September 2020
16 September 2020
17 September 2020
18 September 2020
21 September 2020
23 September 2020
22 October 2020
2 November 2020 (Further Written Submissions)
3 November 2020 (Further Written Submissions)
5 November 2020 (Further Written Submissions)
6 November 2020 (Further Written Submissions)
19 February 2021 (Further Written Submissions)
29 March 2021 (Further Written Submissions)
30 March 2021
Date of orders: 30 April 2021
Decision date: 30 April 2021
Jurisdiction:Civil
Before: Montgomery DCJ
Decision:

1 Judgment for the Defendants

2 Plaintiff to pay the Defendants’ costs

Catchwords:

TORTS – Negligence – Sexual Assault

TORTS — Trespass to the person — Battery

TORTS – Breach of Duty of Care by Foster Carers

LIMITATION OF ACTIONS — Suspension of time — Plaintiff under disability

TORTS — General principles — Damages

Legislation Cited:

Civil Liability Act 2002 (NSW) ss 3B(1)(a), 5B, 5C, 5D, 5E, 21

Criminal Procedure Act 1986 (NSW) ss 279, 293A

Evidence Act 1995 (NSW) ss 41, 97, 140(1), 140(2)

Limitation Act 1969 (NSW) ss 11, ss 11(3)(b), 14(b), 50C, 50D, 50F, 52

Motor Accidents Compensation Act 1999 (NSW) s 109

Cases Cited:

Adams v Bracknell Forest Borough Council [2004] UKHL 29; [2005] 1 AC 76

Baker-Morrison v State of NSW (2009) 74 NSWLR 454

Briginshaw v Briginshaw (1938) 60 CLR 336

Cowell v Corrective Services Commission of NSW (1988) 13 NSLWR 743

Croucher v Cachia (2016) 95 NSWLR 117

Gersbach v Gersbach [2018] NSWSC 1685

Guthrie v Spence (2009) 78 NSWLR 225

Hahn v Conley (1971) 126 CLR 276

Kotulski v Attard (1981) 1 NSWLR 115

Kuhl v Zurich Financial Services Australia Ltd & Anor (2011) 243 CLR 361

Lamb v Cotogno (1987) 164 CLR 1

Longman v The Queen (1989) 168 CLR 79

M v M (1988) 166 CLR 69

MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657

McCallion v Dodd (1996) NZLR 710

Musa v Alzeaiawi [2021] NSWCA 12

Neat Holdings Pty Ltd v Karajan

Holdings Pty Ltd & Ors (1992) 67 ALJR 170

Nguyen v Tran [2018] NSWCA 215

NSW v Harlum [2007] NSWCA 120

Pomare v White [2019] NSWCA 317

State of NSW v Bujdoso (2007) 69 NSWLR 302

State of NSW v Gibbet (2005) 65 NSWLR 168

State of NSW v Gillet [2012] NSWCA 83

State of New South Wales v Riley (2003) 57 NSWLR 496

Walker v Howard (2009) 78 NSWLR 161

White v Johnston (2015) 87 NSWLR 779

Category:Principal judgment
Parties:

Mrs Isabell Perry (Plaintiff)

Mr Ian Kinnear (First Defendant)

Mrs Leisha Kinnear (Second Defendant)
Representation:

Counsel:

Mr D Elliott (Plaintiff)

Mr D Brezniak (First & Second Defendants)

Solicitors:

Gerard Malouf & Partners (Plaintiff)

Paul & Labuzin Lawyers (First & Second Defendants)
File Number(s): 2018/00106299
Publication restriction: N/A

Judgment

  1. The plaintiff, Isabell Perry, was born on 21 April 1993. She was placed into external care by the Department of Community Services because she was assessed to be a child at risk. On 29 June 1994, at the age of 14 months, she was adopted by Ernest Perry and Cheryl‑Lynne Perry. I will refer to them as her “parents”, “father” and “mother” respectively, that being the terminology generally adopted during the hearing. At the time of adoption, her parents thought that they were unable to conceive but in 1998 her mother gave birth to twins. Ian Kinnear (the first defendant), Leisha Kinnear (the second defendant) and the plaintiff were known to each other. The plaintiff’s mother was the second defendant’s sister. Accordingly, the first and second defendants were the plaintiff’s uncle and aunt. Difficulties developed in the plaintiff’s relationship with her parents. Following an argument with her father on 5 March 2009, the plaintiff commenced to live with the Kinnear family. The first and second defendants soon became Foster Carers of the plaintiff. In January 2012, the plaintiff ceased living with the Kinnear family and moved to Lismore, New South Wales, to attend university.

  2. For convenience and without meaning to convey disrespect, the defendants’ children (Chantelle, Jake, Amy‑Lee (Amy) and Brock) will be referred to in these reasons by their first names. This was the practice adopted by the parties during the hearing.

  3. The plaintiff sues for damages to compensate her for trespass to her person in the form of sexual assaults perpetrated by the first defendant. The applicable tort is battery. A cause of action in battery may be established where the defendant’s conduct is either intentional or alternatively merely negligent. The former would engage section 3B(1)(a) Civil Liability Act 2002 (NSW) and the later would not: Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132 per Lemming J, Beazley P and Ward JA at [34]. The nature of intentional sexual assault alleged does engage s 3B(1)(a).

  4. The plaintiff sues the second defendant for failing to take reasonable precautions to protect her from the alleged sexual assaults. The plaintiff says the second defendant’s failures were intentional: A.S.O.C. 13C; T44.10. Application of section 3B(1)(a) is not imposed merely because the plaintiff pleads or alleges an intentional tort. In order for section 3B(1)(a) to apply in this case, the plaintiff must establish both that the second defendant’s impugned conduct was intentional and that it was performed with intent to cause injury; Cowell v Corrective Services Commission of NSW (1988) 13 NSLWR 743, White v Johnston (2015) 87 NSWLR 779 per Lemming J (Barrett and Emmett JJA agreed) at [132]. The phrase “in respect of” in section 3B(1)(a) refers to, in this case, the liability of the first defendant against whom it is alleged, performed the intentional act with the relevant intent to cause injury; not to the second defendant, whose liability derives from her failing to prevent injury to the plaintiff caused by the first defendant’s intentional sexual assault; State of NSW v Bujdoso (2007) 69 NSWLR 302; [2007] NSWCA 44 per Hodgson JA at [2] and [3]; per Basten JA at [57]. Generally, section 3B(1)(a) is to be understood to refer to the liability of the person who did the intentional act with the relevant intent and not to the person whose liability derives from his or her own negligent conduct, where the risk against which precautions must be taken is the intentional violent act of another: Basten JA at [59]-[66]. Accordingly, s 3B(1)(a) does not exclude application of the CLA from the claim against the second defendant.

PLEADINGS & ISSUES

  1. The plaintiff commenced proceedings against the defendants and the State of New South Wales by Statement of Claim filed on 5 April 2018. Proceedings between the plaintiff and the State of New South Wales (as the third named defendant) were resolved on 9 April 2019.

  2. At the commencement of the hearing, the defendants, submitted that the Statement of Claim did not describe any extant duty of care known to law, because the allegations arose out of the parent/child relationship.

  3. I determined that a duty of care was owed by each of the defendants to the plaintiff. My ex tempore reasons for judgment were delivered on day 2 of the hearing. Whilst not to be read in place of the judgment [Perry v Kinnear & Ors (No. 1) [2020] NSWDC 897], I select the following paragraphs to elucidate the content of the duty of care:

“48   In these proceedings, the plaintiff sues the first and second defendants as separate tortfeasors.

49   In Hahn v Conley (1971) 126 CLR 276 at 283 to 284, Barwick CJ started a passage by saying that where there is a cause of action available to the child, the blood relationship of the defendant to the child will not constitute a bar to the maintenance by the child of the appropriate proceeding to enforce the cause of action, and the Chief Justice stated:

“I think that the view for which there is most judicial support and the view which commends itself to me is that the moral duties of conscientious parenthood do not as such provide the child with any cause of action when they are not, or badly, performed or neglected. Further I think that the predominant judicial view to be extracted from those cases and again a view which commends itself to me as correct is that, whilst in particular situations because of their nature and elements there will be a duty on the person into whose care the child had been placed and accepted to take reasonable care to protect the child against foreseeable danger, there is no general duty of care in that respect imposed by the law upon a parent simply because of the blood relationship. Also, parents, like strangers, may become liable to the child if the child is led into danger by their actions.”

50   And further on, his Honour added:

“In the case of the parent, as in the case of the stranger, it seems to me that the duty of care springs out of the particular situation: the extent and nature of the steps which it may be necessary to take to discharge their duty may well be influenced by the fact of parenthood, though parenthood is not itself the source of the duty.”

51   His Honour said that the view expressed by McCarthy J in McCallion v Dodd (1996) NZLR 710 at 729 should be accepted as correct. Due to the nature of this opposition to the amendment, I'm going to go to that judgment for completeness, but before doing so, wish to express the opinion that what I said of this case, drawing on the foundations of tortious liability as spoken of by the Chief Justice in the Modbury case, does not expand upon extant law when one bears in mind what Barwick CJ said in Hahn v Conley.

52   This is not an action against moral duties of conscientiousness of parenthood. It is an action alleging the most deplorable physical and emotional assaults by one individual on a child, the individual standing in the duty borne relationship of vulnerability of the child, they being a Foster Carer and in loco parentis. This is the particular situation and these are the nature or elements of which Barwick CJ spoke and which are to be observed in the application of principle in any particular case. What was said in McCallion v Dodd at 729 by McCarthy J included that there is:

“…no legal duty on a parent qua parent basis, and independently of any otherwise recognised specific duty of care to protect and control the parent’s child, which on breach gave the child a right of action.”

53   However, that does not mean the child cannot enforce against the parent the rights of action in tort which the law gives the child against those who harm him or her. McCarthy J had:

“no doubt at all that a child can sue his father for recognised torts, for example, for assault, for libel for failure of the duty which a motorist owes to a passenger in his car.”

54   McCarthy J said that the occasions when a child can sue his parent in tort are the result of specific situations in which the parties find themselves. His Honour stated that:

“In those situations, the fact that the defendant is a parent may, as a matter, be very immaterial, but the relationship is not the foundation of the right of action. It is the situation which creates the enforceable duty.”

  1. The hearing was conducted on the basis of the Amended Statement of Claim (ASOC) filed with leave on day 2, 25 August 2020. Amended Defences (AD) were filed by each defendant on 15 September 2020 (T426; wrongly dated as signed on 16 September 2020). On 31 March 2021, after close of evidence, Further Amended Defences were filed, pleading limitation of action defences.

  2. At paragraph 9 of the Amended Statement of Claim, the plaintiff provided particulars of the allegations of sexual assault, which did not by the descriptions given, well identify all of the events of sexual assault alleged in the running of the case. In the hearing, the plaintiff alleged that the first defendant sexually assaulted her, as follows:

  1. Starting from some weeks or months after the plaintiff commenced to live in the Kinnear household, the first defendant groped the plaintiff’s breasts, touched her vagina and on occasion digitally penetrated her vagina when tickling her and also touched and on occasion digitally penetrated her vagina in the course of a bottom‑slapping game, without her consent, which events occurred in the lounge room of the home and in the presence of other members of the Kinnear family (ASOC at [9(a), (b) and (c)]; plaintiff’s opening at T15.40‑16.05; Plaintiff Closing Written Submission (MFI 20) at [1.10 and 1.14]);

  2. The first defendant groped the plaintiff’s breasts and rubbed sun cream onto her breasts when it was not requested or required by sun exposure (ASOC at [9(a), (b) and (c)]; Plaintiff Closing Written Submission (MFI 20) at [1.18]);

  3. The first defendant sexually assaulted the plaintiff by digital penetration of her vagina, without consent, during driving lessons (ASOC at [9(d)]; plaintiff’s opening at T16.20; Plaintiff Closing Written Submission (MFI 20) at [1.15]);

  4. Between 10‑18 April 2010, at “Beachcomber” holiday house, Bulwer, Moreton Island, Queensland, the first defendant held the plaintiff on top of him whilst laying on a bed and inserted ice into her vagina, without her consent (ASOC at [9(e)]; plaintiff’s opening at T16.20; Plaintiff Closing Written Submission (MFI 20) at [1.16]);

  5. In July 2010, in a caravan at Tweed Heads, New South Wales, where members of the Kinnear family stayed whilst attending a (“Cooleys”) car show at Coolangatta, the first defendant without her consent “moved the Plaintiff’s hand whilst in contact with his penis until he ejaculated” (ASOC at [9(f)‑(g)]; plaintiff’s opening at T16.20; Plaintiff Closing Written Submission (MFI 20) at [1.17]);

  6. In November 2011, during the Southern Cross University Open Day, in a room of the AZA Hotel, Lismore, the first defendant invited the plaintiff into his bed when she was sick and without her consent rubbed her vagina (ASOC at [9(b)‑(c)]; plaintiff’s opening at T17.33‑35; Plaintiff Closing Written Submission (MFI 20) at [1.20]; T68.45);

  7. In January 2012, in a cabin at Lismore Lake Holiday Park, prior to the plaintiff’s commencement at Southern Cross University, Lismore, the plaintiff woke up naked, the first defendant without her consent having entered her bed whilst she slept and the first defendant was touching her body whilst masturbating his erect penis (plaintiff’s opening at T17.33‑35; Plaintiff Closing Written Submission (MFI 20) at [1.21]).

  1. Whilst not a particular of sexual assault pleaded in the ASOC and not identified in the plaintiff’s opening as an event from which liability arose; there was a substantial contest at the hearing concerning the plaintiff’s allegation that the first defendant watched the plaintiff showering by looking through the bathroom window of the home, from positions of at the lounge room glass doors and at the master bedroom glass doors. The plaintiff did not give evidence that this action caused her to apprehend that sexual contact with her by the first defendant was to occur.

  2. Paragraphs [10] and [11] of the ASOC pleaded that the first and second defendants were confronted by the second defendant’s sister‑in‑law (Ms Turner) saying that the plaintiff had complained to her of sexual assault by the first defendant which would fall within [9(1)] above. The case put by the plaintiff was that Ms Turner, on the occasion of the September/October 2010 school holidays, told the second defendant of a “smacking game”, wherein the first defendant smacked the bottoms of girls in the family, in the course of which sometimes his fingers touched the plaintiff’s vagina.

  3. Paragraphs [13A]‑[14] of the ASOC pleaded that the second defendant, having been notified by Ms Turner and as “a foster parent and/or by reason of being in loco parentis” deliberately (for the purposes of s 3B(1)(a) Civil Liability Act 2002 (NSW) (CLA)) failed to take reasonable steps to prevent the first defendant’s sexual assaults and abuse, occurring. Liability of the second defendant is alleged to arise only after Ms Turner’s notification to her: plaintiff opening at T12.40‑50.

  4. The defendants did not admit (first defendant – AD at [3]; second defendant – AD at [3]) ASOC [7], which pleaded that between March 2009 and 21 April 2011 the plaintiff was placed by the Department with them in out‑of‑home care, as foster parents and thereafter resided with them until January 2012.

  5. The facts of the plaintiff residing with the defendants between 5 March 2009 and January 2012 and of her being placed with them as Foster Carers by the Department, were not contested in the hearing (see Exhibit Q – the Department’s records). That, as Foster Carer and/or by reason of being in loco parentis, the second defendant owed the plaintiff the duty of care pleaded in ASOC at [13B] was ultimately conceded by the second defendant at [11] of AD. Whilst the first defendant pleaded denial of that duty of care (AD at [4]), at the conclusion of the case, it was not contested by either defendant.

  6. The second defendant did not contest the allegation of her failure to act to procure the first defendant to cease assaulting the plaintiff, to supervise the first defendant’s conduct with the plaintiff or otherwise to report the allegations in order to prevent such sexual assault and abuse by the first defendant from continuing (ASOC [13]B‑[13]F and [14]). Her defence was to deny both that the first defendant sexually assaulted the plaintiff and that Ms Turner provided that notification.

  7. In her closing written submissions (MFI 20) at 1.1, the plaintiff included in the description of her cause of action against the second defendant: “Her own abusive controlling treatment of the P”. That allegation does not describe a basis for damages pleaded or run in the case against the second defendant.

  8. As explained at [7] above, the duty of care, the breach of which each defendant is sued upon, is not composed of duties or standards of moral or conscientious parenthood. No such cause of action is known to the common law of Australia. The plaintiff sues the first defendant for the recognised tort of assault and the second defendant for deliberately failing to protect her from that assault. They, standing in the role of parents, were subject to liability, if the sexual assaults are proved: Hahn v Conley (1971) 126 CLR 276 at [283]‑[284] per Barwick CJ; McCallion v Dodd (1966) NZLR 710 at [729], (putting aside for the moment application of the Civil Liability Act 2002 (NSW) to consideration of breach of duty by the second defendant).

  9. In the context of the duty owed, the inclusion of emotional abuse with the expressed claims of physical and sexual abuse (ASOC at [9]) is to be read as emotional abuse in association with the specific claims of sexual abuse: see ASOC [1].

  10. The core issues for determination of liability are:

  1. Whether or not the plaintiff has proved the allegations of sexual assault at the hand of the first defendant; and

  2. If the plaintiff is successful as to the first issue; then whether or not the second defendant was notified by her sister‑in‑law, Ms Alberta (‘Bea’) Turner, during the September/October school holidays 2010 of the first defendant’s sexual assault of the plaintiff.

BURDEN OF PROOF

  1. In order to succeed on each of her allegations of sexual assault, the plaintiff must satisfy the civil burden of proof of on the balance of probabilities: s 140(1) Evidence Act 1995 (NSW). The Court must take into account that the plaintiff’s allegations of sexual assault are allegations of heinous criminal activity, when deciding whether or not it is satisfied to that civil standard: s 140(2) Evidence Act 1995 (NSW). That the Court, when determining whether or not it is so satisfied, must contemplate the gravity of the matters alleged and take into account the matters now listed in s 140(2), is not new.

  2. Dixon J, stated in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 at 361‑362, the following passage, often quoted for application of the principle:

“The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.”

  1. Whilst case law authority is not required for the observation that the allegation of sexual abuse by a Foster Carer upon the child within their care is an allegation of heinous criminal activity; in M v M (1988) 166 CLR 69; [1988] HCA 68 at p 67, the Court observed that the above quoted passage from the judgment of Dixon J in Briginshaw’s case has “direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute”.

  2. In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd & Ors (1992) 67 ALJR 170; (1992) 110 ALR 449; [1992] HCA 66 at [2], the plurality (Mason CJ, Brennan, Deane and Gaudron JJ) explained application of the Briginshaw principle, as follows:

The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud [case law cited]. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear [case law including Briginshaw v Briginshaw cited] or cogent [case law including Briginshaw v Briginshaw cited] or strict [case law including Briginshaw v Briginshaw cited] proof is necessary "where so serious a matter as fraud is to be found" [case law cited]. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct [case law cited] and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

  1. Most recently, in Nguyen v Tran [2018] NSWCA 215, at [62], and Musa v Alzeaiawi [2021] NSWCA 12, the Court of Appeal has restated that s 140(2) and application of the Briginshaw principle does not provide a standard of proof other than, on the balance of probabilities. Application of s 140(2) in this case where the nature of the cause of action is sexual assault (not only but including when the plaintiff was a child), requires me to be conscious of that grave nature of the allegations when considering the answer to whether or not the evidence persuades me on the balance of probabilities.

PLAINTIFF’S Memory CAPACITY CHALLENGED BY THE DEFENDANTS

  1. In closing written submissions, the parties properly described the contest as “a word on word case” (Defendants at MFI 21 at [99]; Plaintiff at MFI 22).

  2. The common ground is that the plaintiff, possibly in consequence of a predisposition (her birth parents suffered mental illness) and problematic parenting during her infant and first‑half of adolescent years, suffers complex mental health issues. She has from time‑to‑time been variously provisionally diagnosed as suffering Attention Deficit Hyperactivity Disorder, Post‑Traumatic Stress Disorder and commonly Borderline Personality Disorder with Anxiety and Depression. She started to self‑harm at the age of 13 years, typically by cutting herself high on her thigh region. She has attempted suicide on multiple (a clinical note recorded 8) occasions.

  3. The defendants submitted that the plaintiff’s mental health issues give insight to the unreliability of her evidence. In Closing Written Submissions (MFI 21) at paragraphs [65] and [67]‑[69]; the defendants put:

“[65]   Of importance to any assessment of the plaintiff is an understanding of the nature of the illnesses from which the plaintiff is diagnose[d] as suffering. Each of the reports [Ms Troy, Clinical Psychologist, dated 18 May 2018 (Exhibit F and Exhibit 22 – tendered by both parties) and Dr Skinner, Psychiatrist, dated 18 March 2019 (Exhibit 27)] describes a diagnosis of border line personality disorder and it [is] submitted that this is a recognised major psychiatric illness. Its features are critical to the weight and understanding that this court would and will accord to the plaintiff in these proceedings.

…

[67]   The medical material tendered in this case establish[ed] mental serious illness including the likelihood of the diagnosis of borderline personality disorder well before the (sic) Ian and Leisha Kinnear and their children came to accommodate the plaintiff in their own home.

[68]   It is submitted that the circumstance that the plaintiff suffers borderline personality disorder, has a history of psychological illness including persistent delusions is a matter and quality of the plaintiff which must be taken into account in assessing the reliability of the (sic) or any disputed account given by her both before trial and at trial in these proceedings.

[69]   It is the submission on behalf of Ian Kinnear that the account of the plaintiff of sexual assault by Ian Kinnear is the consequence of other grievances described by her (claimed restrictions on telephone; claimed too much control by Leisha Kinnear; disadvantage compared with the other children; reunification with Cheryl[‑L]ynne and Ernest Perry; her own confused identity together with a well‑documented delusional aspect.”

  1. The defendants’ ultimate submission in written reply to the Plaintiff’s Reply Submissions (MFI 23) and in final oral submissions (T789.45‑T790.10) was that, albeit there was no onus on the defendants to prove anything, an available explanation of the source of the plaintiff’s allegations was that over time she developed “a delusion” of the events in an environment of her “vivid history of psychological illness and continuing disability”, to be viewed in the context of her having failed to complain to either Amy, with whom she was very close, or her treating counsellor, Ms Blenkin. The defendants submit that the plaintiff’s complaint to Ms Turner was “…testing to see what would be the response to a complaint…”. Further, that the plaintiff’s withdrawal of her account given to police of various sexual assaults, including the allegation of insertion of ice into her vagina in New Zealand in 2011, which “complaint” was subsequently “withdrawn” and then, three years later, attending Queensland Police to make her formal statement to police, (Exhibit D), but then withdrawing that; are all facts consistent with “… a growing belief in something that didn’t occur.” We know that frequently happens because people do give accounts to justify their own failures in life. There are many examples in the public arena of people who make up a false story, even a sincerely held false story, and we say that this is such a case. It developed”.

  2. This finally put defence submission requires some immediate corrections. They are:

  1. The plaintiff was not diagnosed as suffering delusions and denied that she had;

  2. The proposition that the plaintiff complained to Ms Turner to test what would be the response, was never put to either the plaintiff or Ms Turner, nor did any witness suggest it; and

  3. The plaintiff did not withdraw the allegation that the first defendant pushed ice into her vagina; rather, in 2014 she told NSW Police, that sexual assault happened during a Winter holiday in New Zealand in 2011; but in 2017 she told Queensland police it happened on about Easter, in 2010.

Chronological Sketch

  1. The sexual assaults are alleged to have occurred over a period of more than two‑and‑a‑half years whilst the plaintiff, between the ages of 16 and 18 years, lived in the Kinnear household. It is of assistance to provide a chronological sketch of relevant events before considering challenges to the plaintiff’s credit. After that, each of the allegations of sexual assault and the allegation of Ms Turner’s notification to the second defendant, will be considered in detail.

  2. Throughout these reasons, references to page numbers within Exhibits are references to pagination appearing at the bottom right‑hand corner of pages taken from the MFI 5/Joint Court Book and MFI 9/Defendant Court Book. I have adopted this approach for convenience. This is the pagination used in the hearing and appearing in the transcript. Also, it is convenient to select this number because some documents and pages had been paginated more than once.

  3. When living with her parents, the plaintiff attended Manning Valley Anglican College, Taree. In 2009, when she commenced to reside in the Kinnear household, the plaintiff was in year 10 at that school. The plaintiff was a hyperactive child of attention‑seeking behaviours, impulsivity and a frustrating lack of focus with direction given to her by her parents. She attributed this to her ADHD, then undiagnosed. By 2009, her behaviours had caused significant stress in the family and her mother was not coping with her. The plaintiff had self‑harmed since the age of 13 years. On 5 March 2009, following an argument with her father triggered by not more than she not being ready when he arrived to pick her up from her casual work at the local KFC, he drove home, leaving her there. This resulted in the second defendant picking the plaintiff up and the plaintiff commencing to stay in the Kinnear household. The evidence of events surrounding that transition from living with her parents to living with the Kinnear household is explored in greater detail later these reasons.

  4. The defendants’ children were then of the following ages: Chantelle (21 years), Jake (17 years), Amy and Brock (11 years). The plaintiff was about to turn 16 years of age (on 21 April).

  5. In April 2009, the defendants applied to Family & Community Services for the Support Care Allowance. On about 12 May 2009, case worker Mr Adam Buchtmann, visited the Kinnear family home for the purposes of assessment. This was the only Department attendance at the home. On 16 June 2009, a Permanent Care Order was made and the Support Care Allowance was approved, with the date of the commencement of the placement being 27 April 2009 (Exhibit Q, pp 205‑206). The Department’s documents (Exhibit Q), do not show a continuing allocation to a caseworker, except for Mr Buchtmann up to June 2009. The plaintiff maintained that, whilst a schoolgirl, she on more than one occasion, telephoned the Taree office of the Department with the intention of complaining of the first defendant’s sexual assaults, but did not proceed to make a complaint because Reception was not able to identify her caseworker and she could not bring herself to speak to staff who were not her allocated caseworker about the assaults (T306.20‑30, T310). The plaintiff’s evidence in this regard is consistent with the Department’s records of caseworker allocation and with records subsequently made by treating medical practitioners of the plaintiff’s difficulty with disclosing the information (see in particular discussion of Exhibit G/Exhibit 24 following). The plaintiff agreed with the cross‑examiner putting that she struggled to trust even medical practitioners with disclosure of complaints of sexual assault and that, on one occasion, she terminated services of a psychologist because he touched her arm (T376.08‑11).

  6. The plaintiff alleged that some weeks or months after she commenced to live with the Kinnear family at 5 Sarah Close, Old Bar, NSW, the first defendant started to inappropriately touch her bottom, grasp her breasts and touch her vagina. She said these assaults occurred in front of the whole Kinnear family, in the open plan, kitchen/lounge area of the house. It is alleged these assaults frequently occurred throughout her living in the Kinnear household.

  7. In 2009, the second defendant took the plaintiff to a consultation with the Kinnear family doctor at Old Bar, Dr Cheung. Dr Cheung provided a referral for the plaintiff to Ms Blenkin, Psychologist in Taree. Between 9 September 2009 and 15 December 2010, the plaintiff consulted Ms Blenkin on 21 occasions. The plaintiff did not complain to either Dr Cheung or Ms Blenkin of sexual assault by the first defendant. The plaintiff’s explanation for this was that due to the second defendant’s engagement with the consultations, the plaintiff did not trust the confidentiality of consultation sufficiently to make that disclosure. Her evidence was consistent with the objective evidence of Ms Blenkin’s clinical documentation. That the plaintiff did not complain to Ms Blenkin will be considered in more detail later in these reasons.

  8. During 2009 to 2010, the plaintiff’s school friend, Ms Scofield, observed the first defendant putting his arm around the waist of the plaintiff, moving her close to him and that his hand would touch her bottom and the plaintiff would wriggle away. Ms Scofield also considered comments made by the first defendant to be inappropriate.

  9. Sometime after 21 April 2009 (the plaintiff’s 16th birthday), the plaintiff obtained her Driver’s Learner Permit and in 2009 commenced driving lessons. Over 2 ½ years, she received instruction from the defendants and Mr Cork, a professional driving instructor. The plaintiff obtained her driver’s licence in early 2012 when living at Lismore whilst attending Southern Cross University. The plaintiff alleges that the first defendant digitally penetrated her during driving under his instruction.

  10. Between December 2009 and January 2010, the plaintiff finished Year 10 at Manning Valley Anglican School and was moved to start Year 11 at Taree High School, at which school the Kinnear children attended.

  11. The plaintiff alleges that during a Kinnear family holiday on or about 10‑18 April 2010, at the “Beachcomber” holiday house at Bulwer, Moreton Island, Queensland, the first defendant sexually assaulted her by inserting ice into her vagina, without her consent.

  12. The Plaintiff celebrated her 17th birthday on 21 April 2010.

  13. The plaintiff disclosed to school friend Erin Holman (now Frost) “everything that had been happening to me” at the hand of the first defendant “from the tickling, bum slapping, breast grabbing, the car lessons and what happened at Moreton Island” (plaintiff’s formal Police statement, Exhibit D at [24] and T211.45). Ms Frost declined the plaintiff’s solicitor’s invitation to give evidence in the hearing. Exhibit D is hereafter referred to as “the plaintiff’s formal Police statement”.

  14. The plaintiff alleges that she was sexually assaulted by the first defendant whilst he and she were watching television in the Kinnear family caravan at a caravan park in Tweed Heads, New South Wales. With the defendants, Amy, Brock and Jake, she was attending a car show named in the evidence as “Cooley on the Rocks” and “Cooleys”, which reference is adopted in these reasons. The plaintiff chronology (MFI 1) attributed the date July 2010. The second defendant said it was on a long weekend (T477.34; T551.25). Ultimately, the date in 2010 was not identified in the evidence.

  15. For the September/October 2010 school holidays, the defendants asked Ms Turner (sister‑in‑law of the plaintiff’s mother and of the second defendant) if the plaintiff might stay with her during the school holidays in order for the Kinnear family to have a break from the plaintiff. At this time:

  1. The plaintiff, whilst staying with Ms Turner, informed her that she found it hard to fit within the Kinnear household and was confused with the way things ran at times in the Kinnear household;

  2. The plaintiff informed Ms Turner that the first defendant tickled and smacked her on the bottom, during which activity the first defendant’s fingers would touch the plaintiff’s vagina.

  3. Ms Turner notified the second defendant of the inappropriateness of the “smacking game” and of the plaintiff having said that the first defendant touched her vagina.

  1. On 13 October 2010, the plaintiff attended the Taree office of the Department of Community Services in relation to her want to contact her birth parents and was informed that she should discuss her request with the second defendant (Exhibit Q, p 203; T310). The plaintiff did not complain of sexual assault.

  2. The Plaintiff celebrated her 18th birthday on 21 April 2011 whilst attending a Kinnear family holiday to Geelong, Victoria.

  3. Between 24 June 2011 to 8 July 2011, the plaintiff accompanied the Kinnear family on a holiday to New Zealand.

  4. At a mutual friend’s 18th birthday at Cundletown, Taree, the plaintiff informed Ms Scofield that the defendant had put ice in her vagina and of multiple instances of sexual assault at the hand of the first defendant (timing inferred by age of 18 years).

  5. On about 30 September 2011, the plaintiff attended a Kinnear family holiday to Valla Beach, NSW.

  6. After returning from Valla Beach, the plaintiff was asked to cease residing with the Kinnear family. The plaintiff and the defendants contest how the separation came about.

  7. The plaintiff soon after went to live with Ms Scofield’s family. Whereas the defendants say this was for a couple of weeks, the plaintiff’s case is that it was for a couple of months.

  8. In November 2011, the plaintiff completed her Higher School Certificate examinations at Taree High School and was subsequently offered entry into a Bachelor of Nursing degree course at Southern Cross University, Lismore.

  9. In November 2011, the plaintiff and first defendant travelled together by car to Southern Cross University, Lismore, Open Day. The plaintiff alleges that she was sexually assaulted by the first defendant whilst staying overnight in a room at the AZA Hotel, Taree.

  10. In January 2012, the plaintiff and first defendant travelled to Lismore by car together for the plaintiff’s commencement of her university nursing degree course. On arrival, the plaintiff’s previously organised, share home accommodation was not available. The plaintiff and first defendant stayed overnight in a cabin at Lismore Lake Holiday Park. The plaintiff alleges that she was sexually assaulted by the first defendant.

  11. In March 2012, the plaintiff attended Jake Kinnear’s 21st birthday party at Old Bar, Taree.

  12. During 2012, the plaintiff attended Southern Cross University, Lismore, studying nursing, but did not continue with the course in 2013.

  13. Between 13 April 2012 and April 2013, the plaintiff attended Goonellabah Medical Centre, in Goonellabah, NSW, about 16‑18 times without giving any history of sexual assault by the first defendant to her doctors (note that, from 30 December 2012, the plaintiff was attending sexual assault counselling elsewhere, but through referral from Lismore Base Hospital).

  1. On 30 December 2012, at 4:00pm, the plaintiff attended Lismore Base Hospital, having overdosed on ibuprofen for a headache during a bout of heavy consumption of alcohol. The clinical nursing notes recorded that the plaintiff complained of past history of sexual assault whilst in foster care. On discharge, the plaintiff was given contact numbers for mental health services (including the name of a psychologist toward whom she could seek referral from a GP) and for sexual assault services.

  2. Over June and July 2013, the plaintiff attended Dr Tiongco of Goodna Family Medical Centre in Queensland, in regard to a Mental Health Plan relating to her complaint of abuse at the hand of the first defendant (plaintiff in‑chief, T77.45; no cross‑examination).

  3. On 8‑9 August 2013 and 19 November 2013, the plaintiff attended Dr See at Camp Hill in Queensland, in regard to a Mental Health Plan relating to her complaint of abuse by the first defendant (plaintiff in‑chief at T78.50; not challenged in cross‑examination).

  4. On 24 November 2013, at Redlands Hospital, Queensland, the plaintiff complained of sexual assault by the first defendant over a three year period. The notes (Exhibit G; Exhibit 24) include the following history of symptoms given by the plaintiff:

  1. Emotional lability and poor emotional regulation;

  2. Impulsivity;

  3. Need for attention;

  4. Low self‑worth and self‑regard;

  5. Has attempted suicide 8 times since the age of 13 – last suicide attempt was earlier this year requiring hospitalisation for OD of paracetamol and ibuprofen [Comment: this was the Lismore base Hospital care referred to above].

  6. DSH [Comment: deliberate self‑harm] – cutting upper thighs and scratching wrists;

  7. Difficulty maintaining friendships / relationships – states that “people don’t want to stay friends with me” and “people get angry with me all the time”.

  8. Precipitating factors identified by the plaintiff included “discussed her sexual abuse with her mother two days ago. Father encouraging her to file charges”.

  9. Psychiatric history included ADHD, anorexia (not formally diagnosed?); “likely undiagnosed borderline personality disorder”; 8 suicide attempts. Thought content included:

“…+++++ negative self‑worth – states that she hates herself. Is a bad person. Not worth anything. Strong need for attention. Complains of racing thought and intrusive negative thoughts. Fleeting suicidal ideations. General increasing acopia [Comment: inability to cope].”

  1. Insight was recorded as:

“Poor – states that she does not know why she has such a need for attention. She does not know why she is doing the things she is doing or how to fix it. She made for a difficult historian due to not answering questions. She had to be asked several times to elaborate on certain topics. Sometimes, the information needed to be sought from her partner.” [Comment: bold emphasis added because considered in later assessment of manner of evidence giving]

  1. Cognitive assessment included:

“Memory: ? poor – she did have some difficulty remembering some things. For example, when asked how her mother reacted when she told her about the sexual abuse, she stated that she did not remember – this was only two days ago.

Attention: Poor – she attributes this to her ADHD”

  1. The notes recorded recent self‑harming and ongoing ideation to self‑harm.

  2. Included in the Assessment recorded was:

“++++distressed and teary. +++psychosocial stressors.”

  1. The plaintiff was in relationship turmoil with her then same‑sex partner, Jo, who had discovered the plaintiff’s impulsive behaviour of sending naked pictures of herself to strangers on the internet. The clinical note was:

“Some neuroveg disturbances that seem chronic in nature. Could be a mild underlying mood/affect depression. Strong negative cognitions regarding self‑worth/regard. No psychotic features observed. No drug or alcohol problems. Likely has undiagnosed borderline personality disorder.”

  1. She was assessed as low acute risk of suicide with a medium chronic risk of suicide and a medium acute risk of self‑harm into the future. The plaintiff was referred to Dr Cook for treatment of ADHD only.

  1. Dr Cook prescribed Ritalin for ADHD. The plaintiff did not complain of sexual assault by the first defendant to Dr Cook but, at the time, she was under the care of Redland Hospital, Bayside Mental Health Team to whom she did report sexual assault (the plaintiff in‑chief, T79.15; Exhibit G; Exhibit 24).

  2. On 10 January 2014, the plaintiff was driven to Tamworth Police Station by her father and alone discussed with a female officer sexual assault by the first defendant (COPS Event Summary – Exhibit 32). The Event Summary records in part:

“the victim was very emotional whilst speaking with police and would only disclose the intimate details of the allegation to a female officer…The process was explained to the victim in relation to reporting the matter. The victim stated she did not know if she wanted to make a formal statement at this point…Will seek counselling before making a decision on whether to make a formal statement of complaint”.

  1. On 15 January 2014, the plaintiff attended Dr Aciu at Mt Gravatt, Queensland, for a Mental Health Plan related to her complaint of abuse at the hand of the first defendant (plaintiff in‑chief, T78.30; not challenged in cross‑examination).

  2. On 9 July 2014, the plaintiff attended Women’s Health at Ipswich Hospital, Queensland, and informed Ms Vikraman, Social Worker, of a history including the following (Exhibit 23):

  1. Prior to living in the Kinnear household, she suffered ADHD and was a troublemaker because of same;

  2. Her mother used punitive punishment and emotionally abused her;

  3. She was fostered to the defendants;

  4. The second defendant verbally and emotionally abused her the whole time she lived with the family – keeping different rules for the plaintiff to follow than for the other children;

  5. The plaintiff never felt part of the Kinnear family;

  6. The first defendant sexually abused and raped her multiple times;

  7. The plaintiff disclosed sexual abuse to “another aunty” (the evidence infers this would be Ms Turner) and it made things worse for her after that;

  8. Nobody believed her and everybody started isolating her more and harassment by the second defendant increased after the plaintiff’s disclosure to Ms Turner;

  9. The plaintiff’s partner, Jo, was very supportive and was helping the plaintiff to make a statement with police and to move on with her life.

  1. On 12 May 2015, the plaintiff attended Dr Jawad of Spring Lakes in Queensland for a Mental Health Plan arising from her complaint of abuse at the hand of the first defendant (plaintiff in‑chief, T77.25; not challenged in cross‑examination).

  2. On 17 December 2016, the plaintiff attended the counter at Ipswich Police Station, Queensland, and reported that during the period of her living with the Kinnear family at the home at Old Bar, NSW, and other occasions, the first defendant indecently groped her breasts and genitalia (under her clothing), penetrated her vagina with his fingers and ice cubes and forced her to bathe with an open window so that he could see in and watch her. “Most offences occurred in NSW, one in QLD” (Exhibit 33, p 291) [Comment: The only sexual assault which the plaintiff alleges in this case to have occurred in Queensland, was the insertion of ice into her vagina at Moreton Island].

  3. The plaintiff completed her formal police statement at Springfield Police Station, Southern Ipswich Command, Queensland, on 19 April 2017, although it is dated 5 February 2017 (Exhibit D, pp 26‑35).

  4. Between 27 January 2017 and 4 September 2018, the plaintiff attended general practitioners at Metro Medical Centre, Springfield Lake Metro, Queensland. The clinical notes (Exhibit 26) record the following:

  1. On 4 May 2017, the plaintiff reported auditory and visual hallucination for two months – hearing someone telling her that she will go to hell if she eats pork – seeing pigs telling her not to eat them.

  2. [Comment: The 4 May 2017 Metro Medical Centre record of report of hallucination is the only report of hallucination and later dated clinical notes refer only to that single report (see 18 December 2017, Exhibit 26, p 371). The plaintiff’s oral evidence, which was consistent with clinical records, was that visual hallucinations did not continue for two months, but that there was a single visual hallucination (T82.35‑50; T355.50‑T365.05). The plaintiff said she experienced auditory hallucinations for two months (T356.25‑39). For the single visual hallucination, the plaintiff was prescribed Risperidone for two weeks only. The clinical notes record no delusions (bold emphasis added)].

  3. CT Brain scan was normal.

  4. On 12 May 2017, Dr Jawad recorded the plaintiff was booked to see a psychiatrist on 2 June 2017, relaxation meditation was helping and a history including: no delusions, auditory hallucinations or visual hallucinations. Dr Jawad provided the plaintiff with a letter regarding her Mental Health Plan.

  5. On 2 June 2017, the plaintiff consulted Dr Randhawa, Psychiatrist at Apollo Specialist Medical Centre, arising from her complaint of abuse at the hand of the first defendant (the plaintiff in‑chief at T78.25; no cross‑examination).

  6. On 30 June 2017, the plaintiff underwent electroencephalography under Dr Bonev, which dismissed any organic brain cause of her symptoms of anxiety (the plaintiff in‑chief at T76.40 and T77.10; no cross‑examination).

  1. On 21 August 2017, Queensland Police Solicitors’ Office Report Details included an event summary (Exhibit 33, p 292) in the following terms:

“…nil disclosures in relation to this exact offence occurring in QLD Health staff. This matter is to be unfounded as there is no chance for a successful prosecution given nil independent witnesses and no other evidence available. There are other matters of abuse which have been disclosed to QLD Health and will be forwarded to NSW Police as offender and all other occurrences occurred there. A report will be furnished and sent for further investigation to NSW”.

This entry is of limited persuasion, for the following reasons:

  1. Its focus was only to the alleged insertion of ice into the vagina at Moreton Island, that being the only event said to have occurred in Queensland;

  2. In cross‑examination, the plaintiff said that she was never informed of that internal police decision;

  3. The plaintiff had complained of sexual assault at the hand of the first defendant to treating medical practitioners as set out in the above chronology;

  4. The plaintiff said that she found dealing with the Southern Ipswich Command police officer arduous and, after three months, was dissuaded when informed that they had lost her documents of authority for the obtaining of medical records. The solicitor’s summary of 21 August 2017 included that doctor’s reports from Hospitals had been received, but there were no references to whether or not the investigation for the obtaining of medical records was complete.

  5. There is no evidence that Queensland Police ceased prosecution from 21 August 2017 or on the basis of that entry. To the contrary, the entry two months later on 21 October 2017 reads:

“The victim phoned Police stating that she wished to withdraw the matter as it was making her anxious and causing her problems. Victim stated that she is not ready to proceed with this matter and may not be able to deal with it. Withdrawal to be obtained.”

  1. On 24 October 2017, the plaintiff completed the Queensland Police Service Withdrawal of Complaint form (Exhibit E).

  2. On 18 December 2017, the plaintiff received a referral from Dr Hossain of Metro Medical Centre, Spring Lake Metro, Queensland, to Dr Cook, “for ongoing management of her ADHD” (Exhibit 26, p 371).

  3. On 26 March 2018, the plaintiff attended Metro Medical Centre, Springfield Lake Metro, Queensland, for treatment of a lacerated wound to her right anterior thigh, which the plaintiff self‑inflicted. The plaintiff’s oral evidence confirmed that treatment required 20 stitches.

  4. On 5 April 2018, the original Statement of Claim was filed.

  5. On 11 February 2020, the plaintiff gave birth to her first and only child. On 13 March 2020, the plaintiff married.

  6. At the time of the hearing, the plaintiff was employed full‑time (but on maternity leave) with Dundaloo Support Service, Taree, as a disability support worker providing independent living and accommodation support.

  7. The above chronology of selected events shows:

  1. The plaintiff’s reported behavioural abnormalities started before her commencing to live with the Kinnear family on 5 March 2009 and are continuing;

  2. The plaintiff has no medical history of delusional behaviour and her evidence denying having experienced delusion and differentiating delusion from her episode of hallucination is consistent with the independent, objective evidence;

  3. The plaintiff has complained of sexual assault at the hand of the first defendant, firstly to school friends and subsequently to medical practitioners and police between 2009 and the hearing.

DR SKINNER’S REPORT – EXHIBIT 27

  1. The defendants qualified Dr Skinner, Psychiatrist, to provide medico‑legal opinion. Dr Skinner was asked to comment on:

“…the strength of any diagnosis of any condition of the plaintiff and, of course, how such an identified condition can or may have related to the actions of Ian Kinnear in circumstance (sic) of his clear and unequivocal denial of any assault upon Isabella, sexual or otherwise.” (bold emphasis added)

(Exhibit 27; defendants’ solicitor’s letter at page 135)

  1. The defendants also asked Dr Skinner:

“Is it possible to say that her psychiatric condition, illness or limitation has caused her to make up / concoct / invent the alleged assault and / or abuse as particularised in the Statement of Claim at paragraph 9 and paragraph 11?”. (bold emphasis added)

  1. At [119], Dr Skinner diagnosed the plaintiff as suffering Borderline Personality Disorder (BPD) and at [122], that she may have had symptoms of Attention Deficit Disorder (ADHD) in the past of mild severity, but displayed no symptoms of it at the time of examination.

  2. At [132] of her report, Dr Skinner responded “It is not possible to say whether Ms Perry has made up / concocted / invented the allegations”.

  3. At [133], expanding on her response to the question concerning concoction and invention, Dr Skinner identified abnormalities of autobiographical memory observed to be experienced by persons suffering BPD. She mentioned that they are more likely than another person to misunderstand or misinterpret the words and actions of others, and to present accounts that are different to the accounts of other observers, to misinterpret or misremember social interactions, or to lie manipulatively and convincingly. She reported the general observation that the abnormality of autobiographical memory suffered by persons with BPD includes memory bias. She added that episodes of disassociation, suffered by persons with BPD may result in memory gaps “as the person in the dissociated state is not fully conscious and aware at the time the memory is laid down. It appears that Ms Perry has experienced episodes of disassociation”.

  4. At [134], Dr Skinner noted that the plaintiff had experienced psychotic phenomena, hallucinations and paranoid ideation and that psychotic phenomena cause distortions for memory of other events around the time of the psychotic experience, or sometimes distortion of memory of events that have occurred previously.

  5. Dr Skinner, at [135], clearly expressed her reliance on instructed assumptions of the defendants’ denials for her assessment toward her expressed opinion and observations of potential unreliability of the plaintiff’s claimed recollection of events. In that penultimate, conclusive paragraph, her observation and opinion following that disclosure was:

“Sometimes a person may give an account of events that did not actually happen, but with the person genuinely believing that the events did happen. As Ms Perry suffers a severe disturbance of personality and has experienced psychotic phenomena, she would be more likely than the average person to develop a distorted perception of past events”.

  1. In fact, Dr Skinner had been briefed with “a history…” set out by the defendants in statements of members of the Kinnear family, which record of history and statements were not in evidence and were not identified or referred to during examination of the defendants or their children; Chantelle, Jake, Amy and Brock.

  2. In her final paragraph [136], Dr Skinner offered:

“It is also possible that Ms Perry has invented the allegations. If that were the case, she might gradually come to believe that the invented allegations were true. Because of her underlying personality disturbance, she would be more likely than an average person to come to this position, because of her Borderline Personality Disorder. With her unstable sense of self, her sense of reality is fragile. It is characteristic of persons with Borderline Personality Disorder to have difficulty in coping as changes occur in relationships. They often idolise a person and then become very distressed when there is a change in the nature of the relationship, then devaluing the person, even with respect of memories of past events”.

  1. In regard to paragraph [136], some caution must be exercised in recognition that the full instructions upon which Dr Skinner assessed the extent of the plaintiff’s unstable sense of self, fragility, sense of reality, changes in relationships she experienced in life, and her idolising of the first and second defendants (they could be the only persons in relation to whom the last sentence could have purpose) were not disclosed.

  2. Dr Skinner’s opinion is an evaluative one, partially based on that undisclosed information. Dr Skinner sparsely covered the defendant statements briefed to her at [61]‑[66]. For instance, her understanding that the plaintiff suffered rejection by her adoptive parents, was summarily covered in one sentence in [61]:

“According to the Witness Statement, when the two children arrived, Isabella (sic) was pushed aside and was ill‑treated”.

  1. The “pushed aside” assumption illustrates that Dr Skinner’s formulative process involved consideration of undisclosed history contained in the defendant’s statements of the plaintiff living in the defendant’s household, but also of her living with her parents. The words “pushed aside” provide a very general description of an assumedly complex home environment, including the plaintiff’s parents’ own behavioural difficulties.

  2. For instance, at [62], Dr Skinner included the important information relating to that “pushed aside” assumption that “Once the school rang Leisha and informed her that Isabella (sic) could not live with the father anymore and wanted to live with the Kinnears”. This version of events was not put to the plaintiff, albeit she did say that when living with her parents she thought the second defendant to be pretty cool (T300.35). The plaintiff’s evidence was that, whilst a child in her parents’ family, she felt that they favoured their birth twins, her brother and sister, over her; however as an adult and parent at the time of giving evidence, she realised that she may have been wrong in that (T331.30‑T332.35).

  3. At [63], Dr Skinner recorded that the Kinnear family member statements advanced that during the holidays attended by the plaintiff, they were always together and when at Moreton Island, “Leisha and Ian were never alone with” the plaintiff. At [64], Dr Skinner was informed that during the early four months of 2012, when the defendants travelled around Australia, the plaintiff “was in constant contact with them”. Each of these facts, reported at [63] and [64] were denied by the plaintiff and otherwise hotly contested in the proceedings. At [66], “Amy’s contemporaneous notes”…apparently written as a diary of events recording the trip to Moreton Island were read by Dr Skinner; but they were not in evidence in the hearing.

  1. It is not possible, from the evidence, to provide a precise measure of that worsening. Doing the best that I can with the evidence I find that the plaintiff would most likely presently suffer personality traits satisfying the DM-5 criteria for formal diagnosis of Borderline Personality Disorder, even had the sexual assaults not occurred. I accept the intertwining of post traumatic behavioural features with her Borderline Personality Disorder would likely have been worsened by the trauma of the sexual assaults and would likely have exacerbated the expression of her borderline acting out and self-harming behaviours as well as difficulties she suffers regulating her emotional response to triggers and trauma associated with the abuse, lability of mood, tendency to impulsivity and maintenance of interpersonal relationships.

  2. In this hypothetical exercise, I accept as true and accurate the plaintiff’s case that the sexual assaults to which she was subjected materially contributed to the development of that worsened psychological state. In this hypothetical assessment of damages, I accept the medical history, largely referred to in the Chronological Sketch, and proceed on the basis that those records evidence in part affects on the plaintiff of the material contribution of the sexual assaults to her pre-existing complex psychological health issues.

  3. On 26 March 2018, the plaintiff lacerated her right interior thigh. She told Dr Skinner that she did not intend the injury to be so severe as to require 20 stitches but the knife was sharper than she realised. That self-harm occurred between the plaintiff withdrawing her formal police complaint and the pending commencement of these proceedings, she having been advised on 30 January 2018 of her civil rights of action.

  4. On 11 February 2020 the plaintiff gave birth to her first and only child. On 13 March 2020 the plaintiff married.

  5. At the time of the hearing the plaintiff was employed full time (but on maternity leave) with Dundaloo Support Services Taree as a disability support worker providing independent living and accommodation support.

  6. The plaintiff said that it is not true that at every work she has had problems with colleagues and managers. She said that she loves her present employment and that she loved the employment before this one. She said that she had excellent references from both.

  7. During evidence in chief, when asked how she now feels about the abuse she suffered, the plaintiff answered that she did not think she would ever get over it but “I have come a long way in my life since. Just a whole lot of fear. Still hold a lot of shame that is not mine to hold”: T84.35-40. The plaintiff agreed that she is often distracted because of ADHD. After a pause in her evidence, she said that she also has Borderline Personality Disorder. She referred to “stigmatising” and she said that BPD can be cured. She agreed that it was hard to live with at times without the right treatment. She was then asked of the appropriate treatments and she listed, Cognitive Dialectic Therapy, medications, holistic group therapies, support, Cognitive Behavioural Therapy and Dialectic Behavioural Therapy.

  8. The plaintiff agreed that she told Dr Skinner that she could not “stick” with therapists because; if they formed a relationship with her, trust issues could interfere. She agreed that therapists were not allowed to touch her. Specifically, that she had difficulty trusting new people. It was the doctor who prescribed Risperidone who touched her arm and she couldn’t go back to see him. At one point, she avoided crowds and had problems with shopping and public transport, so she preferred to drive and she agreed that when she saw Dr Skinner in February 2019, she was not travelling on public transport because of the fear of people touching her. At the time she saw Dr Skinner, she was starting to go to her gymnasium but sometimes avoided going because she didn’t like having people around her, and it depended on the day.

  9. However, at hearing, 1.5 years after Dr Skinner’s assessment and 2 years after Ms Troy’s assessment, she said that she is improved now and she said that people who work with her now know her physical boundaries (T376.40).

  10. The plaintiff was able to give evidence including during a lengthy cross examination and only became obviously distressed when answering questions going to the alleged sexual assaults.

  11. At the hearing there was no evidence of current medical treatment other than as described in the expert reports of Ms Troy and Dr Skinner.

  12. Ms Troy’s ultimate assessment in relation to the plaintiff’s employment prospects is that she is capable of working full time but will struggle to sustain gainful employment and is limited in the type of work she can do due to her mental health issues.

  13. I understand Ms Troy’s opinion to be based on the practical observation that within the workplace the plaintiff will be exposed to interpersonal and/ trauma related stresses such as people touching her, which will likely cause exacerbation of her symptoms and decompensation impacting her general level of functioning and requiring her to regularly seek leave in order to help her regain emotional stability (at 3.9). On that basis, she will require a sympathetic employer and a work environment which does not trigger her trauma and where she is able to regularly seek consolation and reassurance by contacting her partner from her workplace. Ms Troy reported, as was the plaintiff’s evidence, that in her current work as a support worker in residential care she is able to make frequent phone calls to her partner and attend to work demands.

  14. However, and again, Ms Troy did not express that assessment apportioning the material contribution of the sexual assaults to those impairments for work, based as they are on her complex psychological behavioural issues which include her pre-existing ADHD traits and BPD (in the opinions of Ms Troy and Dr Skinner).

  15. Ms Troy’s ultimate opinion (at 3.15) which was directed to the material contribution to the sexual assaults was in the following terms:

“As a result of the injury, she will be impaired in her ability to lead a normal life. She will endure significant distress and difficulty in functioning in response to minor stressors, and struggle to maintain relationships, and sustain gainful employment, with her emotional lability and dependence and self-harming placing a strain across settings. Her symptoms will also limit her ability to engage in the community, both in her own and with her family, avoiding triggers and needing to withdraw when she experiences heighten emotional responses.”

  1. A comparison of the reports of Ms Troy and DR Skinner shows that during the period of 7 months between interviews between 2018 and 2019, the plaintiff reported some improvement in her mental health affected lifestyle. Dr Skinner reported that the plaintiff “feels better and her feeling of self-worth has improved”. By February 2019, for about 6 months the plaintiff had been socially active in that she had begun making friends, many of whom she worked with, and therefore they knew her “boundaries”. Her socialising included going out for coffee or a meal. The plaintiff had begun attending a gymnasium, performed her own shopping and was a licenced motor vehicle driver but in all places she attended she attempted to avoid crowds and people touching her. In 2018 she went to a holiday to the Philippines and visited her partner’s relatives.

  2. To say that the evidence supports the plaintiff’s claim for past and future out-of-pocket expenses is sparse, would be an exaggerated complement of that evidence. There was not the tendering of a schedule of agreed past out-of-pocket expenses as is common at the conclusion of cases involving claims for personal injury damages. I repeat, there was no evidence of current or more recently received medical treatment save for that which could be gleamed from a close reading of the expert reports.

  3. Doing the best that I can with that evidence, I conclude that the plaintiff presently receives very little mental health medical treatment at all. She was prescribed Ritalin-20mg/ 4 daily by Dr Cook. Dr Cook treated her for ADHD. The plaintiff told Dr Skinner that Dr Cook also counselled her in relation to anxiety and in the past had caused her to trial some mood altering medications without success. Dr Cook had retired before the plaintiff had spoken to Dr Skinner in February 2019. He had by then referred the plaintiff to other psychiatrists which because of trust issues is a transition which I accept would not be easy for the plaintiff to make; but she has not maintained psychiatric treatment with another practitioner since Dr Cook’s retirement. It is reasonable to infer, particularly on the basis of her report of improvement given to Dr Skinner, that she does not feel so great a need for such treatment that she is willing to overcome her discomfort with engaging with another treating professional. When she was under the care of Dr Cook, she consulted him on a 6 weekly basis.

  4. Ms Troy confirmed that the plaintiff had ceased taking mood stabilising medication both because of the side effects and because of lack of therapeutic benefit. When seen in February 2019, Dr Skinner recorded that the plaintiff was taking oxazepam-15mg/ twice per week and methylphenidate-20mg/ per day. There is no evidence explaining the therapeutic purpose of these medications. Experience of the Court recognises oxazepam as a benzodiazepine often used to treat anxiety or sleeping issues and methylphenidate to be known as Ritalin. The plaintiff was prescribed Ritalin for her ADHD by Dr Cook.

  5. Ms Troy commented broadly on the plaintiff’s future treatment needs. In her opinion it is unlikely that the plaintiff will respond to new psychological intervention presently but as she matures she will be able to engage more easily in therapeutic relationships. In the event that she is able to engage in therapy, she requires supportive therapy to maintain her state of function and future therapy should target her distress tolerance and regulation. Ms Troy advised that the plaintiff’s future treatment ought to be provided by a clinical psychologist, firstly on a monthly basis progressing to a one consultation every 3 to 6 months after 2 to 3 years at a cost of $248 per session.

  6. In my opinion, it is apparent from the plaintiff’s own evidence in the hearing, that she is coping with her employment and has, at least for some considerable recent time, been able to maintain full time and permanent employment and has been able to maintain her immediate personal relationships such that she is able to socialise with friends and colleagues as already observed, is married and is caring for her child.

  7. I am required to hypothetically assess damages as against the first defendant, under the common law and as against the second defendant, pursuant to the provisions of the CLA.

  8. Neither party addressed apportionment between the first and second defendant in the event that there had judgment for the plaintiff against each of them. A difficulty in arriving at determination of appointment is that the plaintiff pleaded and ran her case on the basis that the second defendant was not on notice of the sexual assaults and not in breach of her duty owed to the plaintiff until after Ms Turner notified the second defendant of the first defendants slapping of the plaintiff’s bottom and the touching of her vagina. That notification occurred in about October 2010. On the plaintiff case, that notification followed also the other sexual assaults which occurred during driving lessons at the Beachcomber, Bulwer, Moreton Island holiday and in the caravan at the Cooleys at the motorcar event holiday. That notification preceded the November 2011 University of Southern Cross open day and January 2012 pre university commencement sexual assaults at Lismore. However, on the plaintiff’s evidence the second defendant observed the first defendant slapping her bottom and touching her vagina whilst in the open living area in the family home from about mid-2009. In the absence of the parties addressing the inconsistency between the evidence and the pleaded commencement of the breach of the duty of care, I would proceed to assess damages on the case as pleaded. Alleged sexual assaults, except those which occurred in the family home during the bottom slapping activity, occurred in the absence of the second defendant and when the first defendant was alone with the plaintiff. In those circumstances I would have arrived at apportion damages at 90% to the first defendant and 10% to the second defendant.

  9. Allowing for the real prospect of dynamics not investigated in the evidence and in regard to which parties did not make any submission, on the hypothetical basis of judgment against the first and second defendants it is inferred from the evidence that the first defendant was so discrete and deceptive as to have sexually assaulted the plaintiff whilst in the presence of his family within the living area of the home. On the basis of that inferred fact, he was a person who may well have continued to sexually assault the plaintiff even had the second defendant counselled him and supervised his contact with the plaintiff. Doing the best I can. On this entirely hypothetical basis I would assess the contribution of the second defendant’s culpability at 10%.

  10. In assessment of damages which hypothetically would be awarded against the first defendant; in regard to general damages, it is important to avoid double counting with the provision for aggravated damages: (2003) 57 NSWLR 496; [2003] NSWCA 2008 per Hodgson JA at [127]-[131]. A sum for general damages is one which will in the assessment of the Court, compensate the plaintiff for all the physical and mental harm suffered by the plaintiff as a result of the sexual assaults by the first defendant. Aggravated damages are compensatory in nature, being awarded for injury to the plaintiff’s feelings caused by insult, humiliation and the like: Lamb v Cotogno (1987) 164 CLR 1 at 8; State of New South Wales v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208 at [126].

  11. I respectfully bear in mind the practical approach by Garling J in Gersbach v Gersbach [2018] NSWSC 1685 at [509] that essentially were the Court to make an award for general damages towards the upper end of the available range, then the Court might consider that to be sufficient compensation taking into account any aggravated damages and thereby avoid the risk of double accounting.

  12. In Riley’s Case supra at [133] Hodgson JA explained that damages awarded for hurt feelings may in part fall within ordinary compensatory damages and that an award for aggravated damages must only be for the difference justified when the defendant’s behaviour has been so insulting, malicious, hurtful, humiliating or oppressing such that general damages do not adequately compensate for hurt feelings and humiliation caused.

  13. That the first defendant was in the relationship of loco parentis arising from his Foster Carer appointment, that he was aware of the plaintiff’s deprived and troubled upbringing to that she was of vulnerable mental state such that she required counselling with Ms Blenkin and that the Victims Compensation Claim had been advanced on the basis of the abuse she suffered at the hand of her parents and that he was able to observe the plaintiff was a troubled and vulnerable adolescent; in my opinion the hurt and humiliation suffered by her during and as a consequence of the sexual assaults alleged justifies compensation by award of aggravated damages in addition to an award of general damages. I would award $30,000 against the first defendant only.

  14. Taking into account the physical battery of the sexual assaults, disruption to the plaintiff’s psychological development through adolescence and into early adulthood and her suffering the worsening of her complex psychological state, I would award $200,000 for general damages. Of this, $150,000 would be for the past. It is appropriate to calculate interest on this amount at 4% (MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657; [1991] HCA 3) and adopt the standard approach of calculating interest at 2% for the whole of the sum for the whole of the period. Since the pain and suffering was sustained between approximately mid-2009 and late January 2012, I calculate interest for the rounded period of 11.5 years at 2%. This amounts to $34,500.

  15. In regard to the plaintiff’s claim for exemplary damages, I respectfully adopt the approach taken by Garling J in Gersbach supra at [512]. In my view exemplary damages in this case are awarded to punish the first defendant for engaging in conduct which was consciously, contumeliously and flagrantly in disregard to the plaintiff’s rights; Lamb v Cotogno supra at [20]. The first defendant has not been sentenced to an imprisonment and there has been no police prosecution. It would be appropriate to award exemplary damages which I assess in the sum of $50,000 against the first defendant only.

  16. In regard to past out-of-pocket expenses, It is apparent that the plaintiff has undergone substantial mental health treatment and repeated Mental Health Plans since the sexual assaults. However, and again, the evidence does not permit me to differentiate between treatment to which she would have come on the continuation of her pre-existing mental health state and the treatment to which she did come because of the material contribution of the sexual assaults. Doing the best I can with the evidence I award $30,000 for treatment expenses. It is simply not available to calculate future out-of-pocket expenses because of the absence of better evidence and particulars.

  17. In regard to future out-of-pocket expenses whilst Ms Troy has recommended future treatment in the form of clinical psychologist directed therapy. The plaintiff has not maintained for any extended period such treatment in the past. I note Ms Troy’s provision of the cost clinical psychologist consultation at $248. There is no evidence of the cost of other therapies or medications. Bearing in mind that consultation fees of clinical psychologists and psychiatrists are substantial and Ms Troy’s prognosis that in the future, as she matures the plaintiff might be able to maintain a therapeutic relationship with her treaters; doing the best I can, I allow $50,000. Accordingly if damages were awarded against the first defendant, they would constitute the following: 

  • General Damages - $200,000 x 90% = $180,000

  • Interest on General Damages - $34,500 x 90% = $31,000

  • Aggravated Damages - $30,000  

  • Exemplary Damages - $50,000

  • Past Out-of-Pocket Expenses – $30,000 x 90% = $27,000

  • Future Out-of-Pocket Expenses - $50,000 x 90% = $45,000

  • Total - $363,000

Accordingly if damages were awarded against the second defendant, the would constitute the following;

  • Pursuant to section 16 CLA - Non-Economic loss at 30% of a most extreme case - $158,000 x 10% = $15,800

  • Past Out-of-Pocket Expenses - $30,000 times 10% = $3,000

  • Future Out-of-Pocket Expenses - $50,000 times 10% = $5,000

  • Total - $23,800

ORDERS

  1. I made orders as follows:

  1. Judgment for the Defendants 

  2. Plaintiff to pay the Defendants' costs

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Decision last updated: 03 May 2021

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Cases Citing This Decision

1

Perry v Kinnear (No. 6) [2021] NSWDC 273
Cases Cited

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Statutory Material Cited

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Baker-Morrison v State of New South Wales [2009] NSWCA 35
Baker-Morrison v State of New South Wales [2009] NSWCA 35
White v Johnston [2015] NSWCA 18