RS v HS
[2016] WADC 157
•11 NOVEMBER 2016
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: RS -v- HS [2016] WADC 157
CORAM: LEVY DCJ
HEARD: 14 - 18 MARCH 2016
DELIVERED : 11 NOVEMBER 2016
FILE NO/S: CIV 1957 of 2013
BETWEEN: RS
Plaintiff
AND
HS
Defendant
Catchwords:
Personal injury - Sexual assaults - Tort of battery - Harassment, bullying and intimidation - Tort of intentional infliction of harm - Causation - Civil Liability Act 2002 - Standard of proof - Privileged communications - Prior inconsistent statements - Expert opinion evidence on Indian culture - Exemplary or aggravated damages
Legislation:
Civil Liability Act 2002 s 3, Table 1, item 1(a) and item 1(b)
Evidence Act 1906 s 36A
Result:
Defendant liable for tort of intentional infliction of harm
Damages assessed at $30,000
Representation:
Counsel:
Plaintiff: Mr N Marouchak
Defendant: In Person
Solicitors:
Plaintiff: MKI Legal
Defendant: Not applicable
Case(s) referred to in judgment(s):
Bennett v Minister for Community Welfare (1992) 176 CLR 408
BGC Residential Pty Ltd v Fairwater Pty Ltd [2012] WASCA 268
Briginshaw v Briginshaw (1938) 60 CLR 336
Cassell & Co Ltd v Broome (No 2) [1972] AC 1136
Chappel v Hart (1998) 195 CLR 232
Field v Commissioner for Railways for New South Wales (1957) 99 CLR 285
Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1
JA McBeath Nominees Pty Ltd v Jenkins Development Corporation Pty Ltd [1992] 2 Qd R 121
JMD v GJH [2012] WADC 124
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Nationwide News Pty Ltd v Naidu; ISS Security Pty Ltd v Naidu [2007] NSWCA 377; (2007) 71 NSWLR 471; [2007] Aust Torts Reports 81‑928
New South Wales v Ibbett (2006) 229 CLR 638
Pitts v Adney (1961) 78 WN (NSW) 886
Samnakay v Schofield [2013] WASCA 138
Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118
Water Board v Moutakas (1988) 180 CLR 491
XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1985] HCA 12; (1985) 155 CLR 448
LEVY DCJ:
Introduction
The plaintiff, RS, claims against the defendant, HS, for damages arising from two separate and distinct claims, namely:
1.a claim brought pursuant to the tort of battery; and
2.a claim brought pursuant to the tort of intentional infliction of harm.
So far as the first claim is concerned, RS alleges that on 26 January 2009 she was unlawfully sexually penetrated by HS. That act gives rise to the claim against him in the tort of battery.
Following upon that event, RS claims HS commenced a pattern of harassment, intimidation, threats and emotional abuse against her. The claim for intentional infliction of harm is brought in circumstances where the plaintiff says that the defendant, knowing that she was of Indian Hindu origin and being aware of her culture, coerced and threatened her not to tell anybody about the sexual assault. Furthermore, the defendant claims that the defendant bullied, harassed and threatened her at work and coerced her into having sexual intercourse with him on a number of other occasions.
The plaintiff also claims that the defendant coerced her to loan him money at various times.
The plaintiff claims that each of the acts pleaded by her were done intentionally and calculated to cause her harm. The plaintiff alleges that the acts were not only unlawful, but caused physical and mental harm and distress to her.
The plaintiff claims for damages as a result of suffering injury, loss and damage, mental anguish and anxiety.
The Civil Liability Act 2002 does not apply to either one of the plaintiff's claims. The plaintiff's first claim in tort is alleged to be an unlawful sexual penetration. It would amount to an intentional act the doing of which is a sexual offence as defined pursuant to s 36A of the Evidence Act 1906 or sexual conduct that is otherwise unlawful: Civil Liability Act s 3A, table 1, items 1(a) and 1(b).
Nor does the Civil Liability Act apply to the plaintiff's claim in tort for the intentional infliction of harm. This is because s 3A of the Civil Liability Act provides that:
•Part 1A which deals with the test for liability for harm caused by the fault of a person;
•Part 1B which deals with mental harm; and
•Part 2 which deals with constraints on awards for damages other than s 10A,
do not apply to damages relating to personal injury caused by an unlawful intentional act that is done with an intention to cause personal injury to a person. In essence, each of the plaintiff's claims that give rise to the claim for intentional infliction of harm would amount to intentional unlawful acts if proved.
The defendant admits that he had sexual intercourse with the plaintiff but claims that the sexual intercourse was consensual and was therefore not unlawful. In addition, the defendant disputes the dates alleged by the plaintiff.
The defendant also denies that he at any stage did any acts that could amount to harassing, intimidating, threatening or emotionally abusing the plaintiff.
The standard of proof
Both of the claims brought against the defendant are civil claims for damages. Consequently, in relation to each claim, the plaintiff must prove that it is more likely than not that the alleged conduct occurred.
The acts alleged to have been carried out by HS against RS include serious criminal conduct that might amount to offences against the laws of Western Australia. They include:
•HS rubbing RS's vagina with his finger - indecent assault (s 323 of the Criminal Code)
•HS sexually penetrating RS without her consent on numerous occasions (s 325 of the Criminal Code)
•Threatening RS that he would tell people that they had sexual intercourse unless she came to his house; engaged in sexual intercourse with him or assisted him financially (s 338A(a) or s 338A(b) of the Criminal Code).
Repeatedly telephoning her and sending text messages to her; bullying her; harassing and insulting her at work (s 338E of the Criminal Code).
Since the subject of both claims raises serious allegations, I am required to have clear or cogent evidence of the facts alleged before being so satisfied. Regard must be had to the dicta of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336, 361 that:
… 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. … This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained.
I am mindful of the fact that the allegations raised by the plaintiff are alleged to have taken place up to seven years before the trial. No complaint about any of the defendant's conduct was raised with anyone until RS made a formal complaint to her employer on or about 9 May 2011 (see exhibit 5.1, Incident Register dated 9 May 2011). By that complaint, although RS raised an allegation that she had been assaulted by HS at his house, she did not allege that the assault was of a sexual nature. The background to the complaint will be considered in detail later in these reasons.
In about August or September 2011, more than two and a half years after the alleged sexual assault, RS made a complaint to the police that she had been sexually assaulted by HS (RS's evidence‑in‑chief, ts 71).
In or about the period between October to November 2011 police officers attended HS's home and spoke to him about the alleged sexual assault (HS's evidence, ts 203 ‑ 204). HS was never formally interviewed, let alone prosecuted. No evidence was led during the trial of precisely what RS had alleged to police. Other than a submission made by the plaintiff's counsel that the 'police did not prosecute [HS] due to the lack of evidence that's required in [sic] the criminal standard' (ts 5), I have no information about the criminal investigation carried out by police into the matter. All I can infer from the evidence is that: a complaint of sexual assault was made by RS to the police against HS; that it was alleged to have occurred sometime prior to August or September 2011 and that HS denied the allegation.
In the circumstances, I need to carefully scrutinise the plaintiff's evidence with great care.
The trial
The trial ran for four days. The plaintiff, who was represented by counsel at the trial, gave evidence and called the following witnesses:
•Dr Stephen Jay Proud – consultant psychiatrist who gave expert opinion evidence in relation to the psychiatric harm claimed by the plaintiff. His report dated 1 May 2015 was also tendered at trial (exhibit 6.2);
•Dr Devleena Ghosh – Associate Professor in Asian Studies at the University of Sydney who gave expert opinion evidence relating to the Indian community and culture;
•Mr Alan Ritchie – produced documents made in relation to a complaint that the plaintiff made against the defendant in May 2011 (exhibit 9);
•Frances Harrison – produced the plaintiff's medical records from Sir Charles Gairdner Hospital relating to the period between 3 July 2011 and 6 July 2011 (exhibit 10);
•Ms Judith Rae Leembruggen - produced the plaintiff's medical records from Graylands Hospital relating to the period between 29 September 2011 and 4 October 2011 (exhibit 11).
The defendant was unrepresented at trial. He did however cross‑examine the plaintiff and gave evidence at trial.
The plaintiff (RS)
At the time of trial RS was 45 years old. Her date of birth is 25 October 1971 (ts 253). She was born in Delhi in the northern part of India. Although her first language was Hindi, she spoke English well. She married in 1994. She has three children from that marriage, two daughters and a son. At the time of trial her daughters were aged 19 and 20. Her son was then 17 years old. She lived in Nollamara with her husband and children. RS and her family are of the Hindu religion.
RS completed a Bachelor of Arts degree at Delhi University in India. She had completed a number of subjects as part of her degree. These included English, another language (Sanskrit) and political science.
In 1994, when RS was 22 or 23 years old, she emigrated to Australia with her husband and children. The family initially lived in Sydney but in 2007 moved to Perth.
RS completed a Certificate II in Administration in the year 2000. She was enrolled in childcare studies at one stage but dropped out of that course.
When RS first moved to Sydney, her husband's family was very active in the Indian community there. They were involved in cultural and other programs in Sydney. She attended the Hindu temple in Sydney every week.
Following their move to Perth, in the period between 2007 and 2009 the family became active in the Indian community. During that time, RS attended the Hindu temple in Perth almost every week. Although she was Hindu, she also attended the Sikh temple in Perth on occasions (RS's mother followed the Sikh religion). According to RS, she originally had many friends within the Indian community. She mostly socialised within the Indian community and had very few friends outside of that community. After January 2009 this changed. She stopped socialising within the Indian community and generally became withdrawn.
RS's husband purchased a cleaning franchise in 2007 or 2008. That business failed in 2010. He subsequently obtained a taxi licence but only worked one or two days a week. For reasons that will be discussed later in more detail, it is clear that RS's marriage was an unhappy one and had been for some time prior to her meeting HS.
In 2008 RS commenced working as a bus driver with Swan Transit. She was based at the Shenton Park depot. In 2010 she suffered a back injury and claimed workers' compensation (ts 14). Thereafter she did office work and other administrative jobs (ts 14). Until RS went on workers' compensation, she was working full‑time as a bus driver. She was required to work between 35 ‑ 45 hours per week.
It should be noted that although RS spoke English well, she had an interpreter available to her throughout the trial. At times, RS resorted to the assistance of the interpreter when she had difficulty expressing herself in English. Nonetheless, I have no hesitation in finding that she was able to comprehend all questions, issues and matters relating to the proceedings. RS is an intelligent and well-educated person.
The defendant (HS)
HS, like RS, was of Indian descent. He came from the Punjab in India. He had completed a Bachelor Degree in Computer Science in India. Although all of his studies had been undertaken in English, his first language was Punjabi. He also spoke Hindi. He too was working as a bus driver employed by Swan Transit out of the Shenton Park depot at the relevant time.
When HS met RS he was unmarried. At some time, either before he met RS or shortly thereafter, he became betrothed to a woman in India. In about November 2009 he returned to India to marry his girlfriend. The marriage was arranged by HS's parents in India.
The relationship between RS and HS
RS and HS met in about June or July 2008 but did not speak to each other until about September or October 2008. From that time on, RS and HS became friends.
According to RS, they were work colleagues that formed a casual friendship (ts 16). They would talk to each other at work and, on occasions, HS would telephone her. They talked almost every day. They discussed his life, social matters, work matters and family.
As noted above, although HS was not married when he first met and became friends with RS, very early on in their friendship it was clear to RS that HS had a girlfriend in India and that he intended to marry her. In about November 2009, HS returned to India to marry his girlfriend. RS was aware of this at the time.
According to HS, the relationship between the pair ultimately became something far more than casual friends. According to HS, the relationship slowly grew over time. He too said that they shared personal information.
It is obvious that RS and HS formed a very close personal friendship and that they shared personal details about their lives with one another. For example, RS said that in the period between September 2008 and January 2009:
•she learnt that HS's parents and brother lived in India;
•HS told her that he had a girlfriend and that he was planning to marry her. It was an arranged marriage. HS's prospective bride had been selected by his parents;
•she learnt that [HS] was of the Sikh religion;
•she learnt that HS had come to Australia in or about the year 2000 and that he was born in Chandigarh in Punjab; and
•they talked about their work shifts.
According to RS, as their relationship developed, HS sought to elevate the relationship to a romantic one. RS said that she resisted this course because she was married with children. She wanted to have a friendship with HS, but nothing more.
RS said that HS persisted with romantic gestures. He would come onto her bus and attempt to get physically close to her. She told him that he had the wrong impression about their relationship (ts 17). She said she explained to him that she wanted a friendship with him, but nothing more. According to RS, when she told HS that she only wanted a friendship he would agree. He would respond by saying 'I know we are just friends', but would then act differently. These conversations occurred on a number of occasions (ts 17).
According to RS, despite HS saying that he understood that she did not want anything more to develop between them, he would say things that made it clear to her that he loved her. He would say things like 'I will take you. I will pick you up and take you'. According to RS, in India this expression is generally understood to mean that the man will 'kidnap' the woman and take her home to have their way with them (ts 19). According to RS, HS would use this expression in a romantic way. He would say things to her like 'I love you' and 'I'll take you home. I will kidnap you'. On RS's evidence, HS ultimately acted on his desires by unlawfully sexually penetrating her on 26 January 2009 and then on multiple occasions subsequently.
Unlike RS, HS's evidence was that the relationship eventually developed to the point where they had consensual sexual intercourse on a number of occasions. According to HS, by February 2009 his relationship with RS had become a romantic one. This was illustrated, on HS's evidence, by the fact that on Valentine's Day 2014 RS gave him a present and they kissed (ts 184). On his version of events the first time they had sexual intercourse was in or about June 2009 (ts 165). According to HS, there was another occasion where they had sexual intercourse. On the defence case, all acts of sexual penetration were consensual.
RS's account of the events of 26 January 2009
On 26 January 2009 RS worked her shift driving a bus. It was a public holiday. She started work in the morning. She had completed her shift and was driving home.
When she was almost at her house she received a phone call from HS. HS told her he needed to talk to her urgently. RS believed that there was a problem. She drove to his home in Nedlands, arriving there between 5.00 pm and 5.30 pm.
RS knocked on the door. HS came to the door smelling of alcohol. RS asked him what was so urgent. HS told her that he wanted to show her a photograph of his fiancée. RS agreed and went inside. HS then told her that the photo was on his laptop and that the laptop battery was dead. He said that he was charging the laptop in his bedroom and that he would show her the photo in one minute. He asked her to sit down. He got drinks for them, orange juice for her and an alcoholic drink for himself. He asked her to wait for 5 minutes while the laptop charged.
After 5 minutes, he told her to come into his bedroom. He asked her to come and sit with him. He told her that the laptop was not working properly. According to RS, he suddenly pushed her onto the bed, jumped on top of her and starting kissing her. She was having difficulty breathing and tried to get up. He had one of his arms around her neck and held onto one of her arms. With his other hand he then undid the zip of her pants. He then rubbed a finger on her vagina. She was trying to move away from him and started coughing. She was coughing so badly that she was not able to breathe. HS stopped what he was doing. RS noticed that her pants were open and down. HS gave her the juice to drink. She was coughing uncontrollably.
HS then pushed her back onto the bed, pulling her pants and underwear off in the process. RS continued to constantly cough and was not able to breathe. She repeatedly said to him: 'please leave me'; 'I don't want to do this'; 'I'm not into it'. He did not listen. According to RS, he then 'jumped onto [her]' and forcibly tried to have sex with her. HS inserted his penis into her vagina without her consent. On her estimation, he inserted his penis into her vagina for approximately half a minute (ts 24). He ejaculated. Some of his ejaculate ended up on her stomach and vaginal area (ts 25).
After he had ejaculated, RS said to him that he was an 'animal' for what he had done to her. The word 'animal' was said in Hindi. She tried to stand up, but found it difficult to do so because she was having difficulty breathing. HS was trying to calm her down. He told her that he loved her (ts 25). In response, she said 'what did you do? I don't want this thing from you. I told you.' Before she left the house she said to him 'you are animal [sic]' (ts 25). She cleaned herself up with tissues, put her clothes on and then immediately left. As she was leaving she said to him 'you are an animal' (ts 25).
After she had left the house and was on her way home, HS telephoned her and said that it was 'love nothing else' (ts 25). He said that he would not tell anyone. He kept repeating these things to her. According to RS, she told him that she could not speak to him because she was shaking and had difficulty driving.
As noted above at [39], HS denied that he had sexual intercourse with RS on 26 January 2009. His evidence was that the first time they had sexual intercourse was in June 2009. Ultimately, the defendant's case is that they had consensual sexual relations on two or three occasions in 2009 (ts 175 ‑ 176, 188). As discussed below, the defence case was somewhat fluid in relation to the dates of the acts of sexual intercourse.
It is of note that at one point HS told the court that he had sex with RS on two occasions. The first was in about June 2009 and the second in 2010 (ts 143). It should be noted that the information HS provided that he had sex with the plaintiff in 2010 arose in circumstances where I queried him about his defence. This was at a time when he was not giving evidence under oath. The following exchange occurred (ts 142 ‑ 143):
LEVY DCJ: Is it your case that nothing happened between the two of you at your house on 26 January 2009?
THE DEFENDANT: It's hard to remember particular that date.
LEVY DCJ: Well, yesterday you asked [RS] questions about June of ‑ ‑ ‑
THE DEFENDANT: There's no particular date, your Honour, but in that month, yes.
LEVY DCJ: Well, the two acts that - of - of sexual intercourse that you say you had with [RS], what's - is it your case that one took place in June of 2010? When do you say it happened?
THE DEFENDANT: 2009.
LEVY DCJ: Sorry, did I say 2010? When do you say it happened, the two acts?
THE DEFENDANT: June 2009 ‑ ‑ ‑
LEVY DCJ: Yes.
THE DEFENDANT: - - - and - and 2010.
LEVY DCJ: And some other - and some time in 2010? Okay. Right. [RS] gave evidence yesterday that you said certain things to her such as you will tell people that she had had sex with you and she would not be able to show her face. Do you agree that you said those - that thing?
THE DEFENDANT: No.
As noted above, whilst the defendant was not under oath at the time he made the above statements, nonetheless his comments by way of submissions are relevant to the court's assessment of his credibility generally. It was clear that at the time of the above exchange the defendant's case was that the acts of sexual intercourse took place in June 2009 and sometime in 2010.
RS's failure to report the 'rape' to police
RS did not report the matter to police, nor did she tell anyone about the incident. She said that she was too scared of the consequences that would follow if she did. She was scared of what her husband would do if he found out. She was concerned that her husband would kick her out of the home. She was concerned about what would happen if she went to the police and the incident became public knowledge. She said that if people in the Indian community found out that she had been raped, they would reject not only her, but also her children. She believed that it would not only affect her, but also her daughters' future. She thought about what her husband's family would do if they found out. Despite the fact that, on her evidence, she had been sexually penetrated without consent, she believed that the nature of the Indian culture was such that the Indian community would blame her, not the perpetrator of the offence.
When RS spoke about the Indian community, she spoke about the people she generally associated with within the Indian community. She also believed that the news would filter out to the Indian community in Sydney and that it would spread amongst her relatives and friends there.
RS elaborated upon her concerns about the likely effect upon her children. She said that the community would blame her. They would say that because she was married, she should not have had a relationship with a man. The consequences that would follow included the stigma that would be passed on to her children. RS said that within the Indian community they would think that because she was 'no good', therefore her children were 'no good'. This would affect her daughters' ability to marry, their education and the Indian cultural programs that they would be required to do. It would make it difficult for her daughters to find a husband (ts 26 ‑ 27). Her children would bear her shame. Although it would mostly affect her daughters, the consequences would flow onto her son as well. She said that the Indian community would never accept her if they became aware of the incident.
The social consequences for an Indian woman that has been raped was the subject of expert opinion evidence given by Associate Professor Devleena Ghosh during the trial. That evidence, including the consequences for an Indian woman who is discovered to have had an extra-marital affair, is considered below.
Events following 26 January 2009
Following the events of 26 January 2009, RS said that she tried to stay away from HS. She did not tell anyone about the rape. She had difficulty eating and fell ill a few weeks later. She suffered from nausea in the mornings. She feared that she had fallen pregnant. She informed HS that she believed that she was pregnant. She bought a pregnancy kit from a pharmacy. The test proved negative. Nonetheless, her concern that she may be pregnant caused her to consult a medical practitioner. She attended upon a medical practitioner in or about March 2009. The doctor confirmed that she was not pregnant. RS subsequently informed HS that she was not pregnant.
According to RS, after she informed HS that she was not pregnant, his attitude towards her changed. He would get angry with her over small things.
HS's request for money in March 2009 (RS's case)
Towards the end of March 2009, HS approached RS and told her that he was attempting to obtain Australian citizenship and he needed money to pay out his outstanding traffic infringements. This conversation took place at the bus depot in Shenton Park. RS said that she told him that she only had $200. According to RS, HS made a threat to her that if she did not help him, he would tell people that they previously had sex (ts 29).
RS did not readily have access to money because her bankcard was held by her husband. She needed his permission to withdraw money. She was concerned that if she asked her husband for money she would get into trouble with him. HS threatened her. He told her that if she said anything to anyone (which I infer meant that if she claimed she had been raped), he would tell people about their sexual involvement (which I infer meant consensual sex) and that she would not be able to show her face to others (ts 29).
This statement from HS caused her to become scared and stressed. She did not know what to do. She asked her brother to give her $2,000. She then gave HS the sum of $2,200 which included $200 that she had. According to RS, she gave HS the money at his address in Langham Street, Nedlands.
After she gave HS the sum of $2,200 he was nice to her. This change in attitude towards her only lasted for a period of about one or two weeks.
Shortly after this, HS told her that the other drivers were saying negative things about her. When she passed by the other bus drivers, she believed that they mocked her. She said that they would look at her and laugh loudly.
HS's request for money in March 2009 (HS's version)
HS did not deny that he had received the sum of $2,200 from RS in March 2009. On his version however, RS had insisted that she be allowed to lend him the money. Notably, at one point in his evidence he said that he had paid the money back to RS in cash within two or three months (ts 212). Under cross-examination however, he conceded that as at August 2011 the money had not been repaid to RS. RS engaged a lawyer to recover that money (as well as other money the subject of a subsequent loan discussed below) owed to her by the defendant. In fact, HS had at that stage claimed that he did not need to repay the money at all since it was a gift to him from RS (plaintiff's letter exhibit 12 – see ruling below).
In proof of this fact the plaintiff sought to rely upon the contents of, and tender, a letter that had been sent to RS's lawyers by lawyers acting on behalf of HS at the time of these events. The letter was sent on a 'without prejudice' during the course of negotiations to settle RS's claim against HS for unpaid money. Ordinarily, the letter would be subject to privilege. Notwithstanding that the letter was a 'without prejudice' communication, it is clear that the information contained within the letter was directly relevant and contradictory of the evidence that HS had given before me on oath that he had repaid the money within two months of receiving it.
In Field v Commissioner for Railways for New South Wales (1957) 99 CLR 285, in the joint judgment of the majority referring to the law relating to communications without prejudice, the court said, at (291):
As a matter of policy the law has long excluded from evidence admissions by words or conduct made by parties in the course of negotiations to settle litigation. The purpose is to enable parties engaged in an attempt to compromise litigation to communicate with one another freely and without the embarrassment which the liability of their communications to be put in evidence subsequently might impose upon them. The law relieves them of this embarrassment so that their negotiations to avoid litigation or to settle it may go on unhampered. This form of privilege, however, is directed against the admission in evidence of express or implied admissions.
Nonetheless, despite the sound public policy considerations preventing privileged communications being relied upon in subsequent litigation, a court has a discretion to allow evidence of those communications to be admitted in order to ensure that the privilege is not abused by a party who attempts to mislead a court: Walsh J in Pitts v Adney (1961) 78 WN (NSW) 886, 889; JA McBeath Nominees Pty Ltd v Jenkins Development Corporation Pty Ltd [1992] 2 Qd R 121; Samnakay v Schofield [2013] WASCA 138 per the Court [48].
In my view, given HS's evidence that he had repaid the money within two or three months, a position that he effectively maintained until questioned on the contents of the letter, his initial evidence carried with it a real risk that the court may have been misled about the true position. Whilst the purpose of RS's counsel's cross-examination on this point was to prove a prior inconsistent statement and therefore went to HS's credit, the subject matter was not merely collateral to the issues at trial. It was directly relevant to the core issues in the trial. Nor could it be said that RS expressly agreed under cross-examination with the contents of the 'without prejudice' letter. Without the evidence of the letter and its contents the court may have been led into deliberate error by the defendant whose claim in evidence that he had paid back the money within two months was, in fact, false.
Without the letter, the plaintiff would not have been able to demonstrate the falsity of the defendant's evidence on this point. Consequently, I am of the view that the evidence, being both HS's answers to the questions and the letter itself, is admissible. MFI 12 will be admitted into evidence as exhibit 12 in the trial.
Text messages and phone calls – 2008 to November 2009
RS said that HS often sent messages to her phone. These messages were often sent in the early morning before she started work. He would also call her. If she did not take his call, HS would continually ring her phone. She was concerned that her husband would find out that he was ringing and that it would create problems at home. HS would also send her text messages. These calls and messages commenced in 2008, continued through January 2009 and until October or November 2009 when HS went to India to get married. Although she told HS not to ring her or to send her messages, especially at home, HS continued to do so.
Notably, according to RS, after she gave HS the sum of $2,200 in or about March 2009, he telephoned her almost every day. He would call her at her home.
She avoided going to HS's home. If she did, she would try to talk outside so that she did not actually go into his home. According to RS, HS forced and threatened her to go to his house (ts 31). When she did attend his home, she said that he would confuse her. On occasions he would just talk about his fiancée.
HS's evidence was completely at odds with RS's account in relation to their telephone communications and meetings at his house. HS said that RS encouraged him to communicate with her, even going to the trouble of purchasing prepaid recharge mobile phone cards for him so that they could communicate with one another without her husband discovering the calls between them. I note that RS admitted she had bought the cards for him, but not for the purposes of encouraging him to call her.
According to RS, sometime towards the end of 2009 or early 2010 her husband became aware of her relationship with HS. RS's husband had secreted a recording device in her bag and had covertly recorded their conversations. It was not in issue at the trial that when, at the end of 2009, HS returned to Perth after his marriage in India, RS informed HS about what her husband had done.
Swapping shifts with HS
According to RS, she was unable to work morning or twilight shifts. Whenever she was rostered on for a morning shift, HS would demand that she swap with him. According to her, HS told her that unless she adhered to his wishes he would not let her live a normal life (ts 32). She was not permitted to swap the early shifts with any other person but him. If she attempted to do so, HS would shout at her.
RS tendered a number of documents from Swan Transit headed 'Change of Shift Advice' (exhibit 1). These documents showed that in the period between 21 April 2009 and 21 December 2009 there were 15 separate occasions where RS had swapped shifts with HS. HS conceded in his evidence that these shift swaps had occurred and that the swaps had benefited him. It was apparent that the shift swaps clearly benefited both RS and HS. It is of note that the shift swaps did not occur after the end of December 2009.
Other allegations of non-consensual sex
Although not pleaded as separate claims, RS alleges that there were a number of occasions after 26 January 2009 where HS forced her to have sex with him.
According to RS, although she told HS that she was prepared to help him, she made it clear that she would not engage in sexual relations with him. She said she told him 'I can help you financially, I'd help anyway, but don't do this thing because it hurts me inside'. She said she felt bad and felt like she could not go home. If she refused, RS said that HS would threaten her by telling her that he would tell people about them.
According to RS, the first occasion that she was forced to have sex with HS, after being raped on 26 January 2009, was after March 2009. There were somewhere between six and eight further occasions of non‑consensual sex between them.
Each of these occasions took place at HS's home in Nedlands. According to RS, there was a pattern in the way in which these incidents occurred. HS would speak to her at work and then call her on the way home after he had left. He would tell her to come to his home. He would say 'I'm waiting for you' or 'just come, I'm waiting there. Just come'. He would threaten her by saying that he would tell people about their sexual relations if she did not come and that consequently she would not be able to 'show her face to the public'.
RS said that she was scared about the consequences if she did not comply with his requests. She only went to his home because he threatened her. She was concerned that if she failed to comply with HS's requests there would be consequences for her children. She was scared about what her husband would do and what would happen to her family. She was scared about her children's future.
On her evidence, the last occasion that she was forced to have sex with HS occurred either the end of September 2009 or the first week of October 2009. The last occasion that she was forced to go to HS's home was an occasion in about October 2009. Again, on RS's evidence, it is of note that the conduct complained of did not occur after late 2009.
The allegations of further unlawful sexual intercourse committed by HS against RS lacked any specificity in relation to either the dates or the details of the alleged sexual acts said to have been committed by HS. In that regard I am mindful of what Dixon J said in Briginshaw v Briginshaw (1938) 60 CLR 336, 361.
As already noted above, HS denies that any sexual acts were carried out by him against her will. All sexual acts, on his account, were with RS's full consent. Furthermore, HS's evidence was that there were only two or three occasions when they had sexual intercourse, the first being in about June 2009.
In relation to when the first act of sexual intercourse occurred, it is of note that during the course of being cross-examined, HS conceded that in March 2009 he had a conversation with RS during which she told him that she may have been pregnant and that he may be the father (ts 186). It is difficult to see how any person would have engaged in such a conversation unless they had engaged in sexual intercourse prior to that date. The concession by the defendant that the conversation took place in March is a significant one. It compels the conclusion that an act of sexual intercourse between RS and HS had taken place well before June 2009.
HS's request for money in June or July 2009
RS said that in about June or July 2009 HS told her that his relatives had requested that he give them the sum of $14,000. RS understood that HS had previously borrowed the sum of $14,000 from his relatives for payment of his education. He also needed money to get married. He was due to marry in about November 2009. HS told her that he needed the money to pay them back.
RS said that she initially refused to help him with the money. According to her, HS's initial request for financial assistance was made nicely. When she refused however, he started to threaten her.
According to RS, at first he asked her to lend him $3,000 or $4,000. She could not raise that amount of money. RS did however give him the sum of $2,000. She told HS that she had raised the money by telling her husband that a driver needed the money. Her husband, who had control of the bankcards, withdrew the money from their bank account and gave her the money. She gave that money to HS in cash.
HS's request for money in August or September 2009
HS was due to marry in November 2009. In August or September of that year, HS told her he needed money for his marriage. He wanted $30,000 or $40,000. He asked RS for the money.
RS said she did not have any money to give him. HS told her she should get a loan. He told her that he could not get a loan because he had a bad record.
RS ultimately took out a loan with Bankwest on behalf of HS. The loan was in the amount of $16,338.99, but together with interest it totalled $22,806. There were also bank fees of $249. This amounted to a total of $23,055. After paying credit protection insurance in an amount of $1,338.99, RS gave $15,000 to HS. HS tendered a copy of Appendix 1 to the loan contract between her and Bankwest (exhibit 2). That document has a disclosure date of 14 October 2009 with an offer lapse date of 13 November 2009. There was no dispute that RS did in fact procure the loan and that the sum of $15,000 was given to HS.
Although the loan was taken out by RS, the arrangement was that HS would make the repayments. HS subsequently defaulted on the loan repayments. As at October 2011 the balance of $14,443.70 was outstanding on the loan. On 21 December 2011, HS signed a document acknowledging the debt (exhibit 4). HS ultimately agreed to repay the loan by way of instalments of $590 per month. This agreement did not eventuate until RS engaged lawyers to pursue the debt from HS.
According to RS, at the time she took out the loan she was being constantly threatened by HS and was stressed and scared. Consequently, according to RS, she did what HS told her to do, namely take out the Bankwest loan for his benefit (ts 147).
HS however, said that far from threatening RS, it was RS who had insisted that she be permitted, as his friend, to help him out financially by obtaining the loan at his behest. Again it is of note that the conduct complained of took place in 2009.
RS's account of HS's harassment at work
According to RS, after she gave HS the sum of $2,000 in about June or July 2009, he was nice to her again. This attitude however, only lasted for about a week or two before it changed again.
According to RS, once again HS began to behave offensively towards her (ts 42). According to RS, HS would speak to other drivers in her presence. He told her that the other drivers were talking about her character, were saying bad things about her and they ridiculed her. According to RS, although she did not know exactly what they were saying, HS would stand with the other drivers and look at her and laugh with them (ts 43). This behaviour caused her to feel bad and scared.
As already noted above, HS travelled to India to marry at the end of 2009. In December 2009, after HS had returned from India, he came to her at work and said that the drivers were talking about her and they were suggesting that she had a problem and needed money. He told RS that another driver, Chris Martin, was prepared to help her with money but he wanted sex from her.
There were other occasions when HS ridiculed her and caused her embarrassment and shame during work hours. This was generally by gestures he made towards her. RS said that between 2009 and 2011 there were occasions where he would give her 'the middle finger'. This would occur when they crossed paths when driving buses from opposite directions. According to RS, he would have his key chain on his index finger and would rotate the key chain on it in a gesture towards her. When he did this, he was laughing and singing. This behaviour also caused her to 'feel so bad' and to become stressed. HS's behaviour made her feel 'embarrassed and ashamed' and caused her to feel that '[she] wanted to die or even drown [herself].' She suffered 'shame' (ts 44).
In 2010, although HS stopped calling her on the telephone, RS said he continued to harass her at work. According to RS, this behaviour was in the form of him laughing at her with the other drivers. This would occur when she passed through the depot. He on occasions also deliberately hugged her in front of the other drivers.
HS's harassment of her also occurred on occasions when he drove his bus in front of her. He did this by deliberately slowing down and causing her to get stuck at traffic lights. This would cause her to be late on her runs, which caused problems for RS with her supervisors (ts 51).
According to RS, HS's harassment of her at work also included him telling her to keep her mouth shut, otherwise she would not be able to 'show [her] face to [her] people.' According to RS, HS kept telling her that he would not leave her alone and that she would 'have no face to show to the other people around' (ts 44).
He also told her that he would 'ruin [her] life'. This behaviour continued until about September 2011. It stopped after police attended upon HS at his home in about September 2011.
For a period of two years, RS said that she completely stopped talking to the other drivers. She would simply go to work, sign in, do her job and at the end, leave. She became isolated at work.
RS's complaints to authorities and police
The first complaint made by RS against HS was to her employer in early May 2011. According to RS, she made the complaint at that time because of a number of factors.
Firstly, as at April 2011, HS had stopped making repayments on the loan. As the loan was in her name, she had to make the payments. She was struggling financially. She had three children to support and her husband was not working. She was only receiving workers compensation payments and could not do overtime.
Secondly, according to RS, on 5 May 2011 she was confronted by HS in the drivers' room. HS had threatened to 'ruin [her] life' (ts 53). At the time, RS thought she may be assaulted by him. She said she was alone and he was angry. He was shouting at her.
She first reported the alleged sexual assault to the police in August or September 2011.
The plaintiff tendered copies of documents relating to the complaints that she made to her employer Swan Transit. These were relied upon by RS, not to prove the truth of what was contained in them, but rather to prove that the complaints were made and at the time she alleges. The documents were:
•Exhibit 5.1 - Incident Register relating to an incident on 9 May 2011. That document refers to an investigation conducted on 12 May 2011.
•Exhibit 5.2 - Incident Register Dated 22 December 2011 and signed by RS.
•Exhibit 5.3 - Grievance Form dated 9 May 2011 and signed by RS.
Exhibit 5.1, the first of the Incident Registers lodged by RS, contained a number of allegations against HS. They were:
•that in January 2009 she had been assaulted by HS at his house (there was no allegation that the assault was of a sexual nature);
•HS had threatened her if she said something;
•HS bullied her;
•in September 2009 HS asked her to obtain a loan for him. She gave him $15,000; and
•HS had been late paying the loan.
Exhibit 5.2, the second Incident Register dated 22 December 2011, relates to a complaint made by RS that HS had put legal papers in her pigeonhole at work.
Exhibit 5.3, the Grievance Form, relates to an alleged incident in the 'drivers' room' on 5 May 2011. It alleges that:
•HS had 'assaulted' her;
•HS had threatened her, lied to her and bullied her;
•HS had used her 'emotionally, physically, mentally in all aspects'; and
•after HS had got the loan, he had insulted her.
In the Grievance Form, it is noted that RS was seeking to have HS sacked and punished.
HS subsequently lodged a formal complaint against RS. He alleged that on 19 December 2011 RS had attended his home and confronted his wife (exhibit 7). RS agreed that she did go to his home, but only for the purpose of discovering his address. She said that she needed his address to lodge a complaint with the Equal Opportunity Commission in order to stop HS from harassing her. It is difficult to accept her evidence on this point for a number of reasons. Firstly, according to RS, HS stopped harassing her in September 2011 after the police had spoken to him. Secondly, RS had been to HS's address on many occasions prior to attending on this occasion. It would not have been necessary for her to attend there to obtain his address. Thirdly, given her desire to completely avoid HS and not go to his house, it is difficult to accept her explanation as to why she was at his address on this occasion.
Other affects upon RS
Irrespective of whether the relationship involved unlawful sexual conduct or not, it is clear from all the evidence that RS was at all times anxious to conceal her relationship with HS from her husband. Her reason for doing so was at least in part based upon the cultural implications that might arise if her husband became aware of her relationship with HS.
RS said that in mid-December 2009 her husband had suspicions in relation to the 'sexual assault' she claimed had occurred. According to her, his suspicions were confirmed in 2010 (ts 76). His reaction, according to RS, was to separate from her and take their daughters with him. Whether RS's husband believed she had been sexually assaulted or simply believed that she was having an affair with HS, is ultimately unclear on the evidence.
According to RS, she received a text message from HS on her birthday. Her husband discovered the text message and kicked her out of the house. According to RS, her husband then moved house and took his daughters away. He did not tell her where he had moved to. Her husband also sent her daughters to India for a period of more than six months. When they returned, they stayed in Sydney. They stayed in Sydney for a year or two.
RS's interactions with the Indian community completely changed. She stopped going out. She stopped socialising within that community. The only places she went were work and home. Her relationship with her children changed. According to RS, only her son talks to her now.
Although RS returned to live with her husband and children, her relationship with her family had been irreparably damaged.
RS's Valentine's Day 'Gift' to HS
In cross‑examination, HS asked RS why, given her evidence about the alleged 'rape' on 26 January 2009, she had given him presents on Valentine's Day some 19 days later. It was put to RS that on Valentine's Day 2009 she had attended his home with items and said to him: 'Choose whatever you like the rest I'll give it [sic] to my husband' (ts 79).
RS denied that she had given him a Valentine's Day gift. She said that in 2008 HS gave her a Myers card valued at $100. She told him that she did not want it and would not take it. It lay in her wallet for three or four months. She attempted to give it back to him by putting it in his mailbox. He did not accept it. Her husband subsequently found it and took the card. He gave her $100 for the card. She said that with the money she had purchased a number of gifts for her children and husband. She admitted that in February 2009 she did then attend HS's home with the items she had purchased and showed them to HS. According to RS, HS simply 'took two shirts' (ts 79). According to RS, the shirts were not a gift to HS.
RS's version of events relating to her attendance at HS's home, which I am satisfied occurred on or about Valentine's Day 2009, lacked credibility. I do not accept that, if she had in fact been raped by HS days earlier, that she would have attended his home and showed him the presents that she had purchased for her children and husband. I am satisfied that she voluntarily attended HS's home on or about Valentine's Day 2009 for the purpose of giving HS a gift.
RS's hospitalisations and health issues
In the period between July 2011 and October 2011, RS was hospitalised on two separate occasions.
On 3 July 2011 RS was admitted to Sir Charles Gairdner Hospital. Sometime before she was hospitalised, RS drank a bottle of alcohol and swallowed antidepressant tablets. RS's admission to Sir Charles Gairdner Hospital was for a period of three days.
According to RS, by then her situation had become unbearable. RS had complained about HS to her employer. She believed that they had ignored her. HS was frequently harassing her. She did not understand why HS continued to harass her. RS said she had reached the point where she did not want to live anymore (ts 72).
RS tendered hospital records from Sir Charles Gairdner Hospital relating to her admission in the period between 3 July 2011 and 6 July 2011 inclusive (exhibit 10).
According to RS, in September 2011 police officers took her to Sir Charles Gairdner Hospital. She was admitted for a day and then transferred to Graylands Hospital (ts 72 ‑ 73). According to RS, these events took place when police officers informed her that they had spoken with HS who had denied any wrongdoing. RS tendered records from Graylands Psychiatric Hospital that confirmed that on 29 September 2011 she was admitted to that hospital. The records reveal that she was discharged on 4 October 2011 (exhibit 11).
The Graylands Hospital records note that RS had 'suicidal ideation' and that was 'upset today that police will not charge a male work colleague for sexual assault which allegedly took place in December 2008' (see page 1 of exhibit 11).
According to RS, whilst the threats from HS stopped after police officers spoke to him in September 2011, he nonetheless continued to harass her at work. This continued until HS moved to another Swan Transit bus depot in February 2012. RS consequently sought the services of a psychologist, Mr Paul Beros. No evidence was led from Mr Beros.
Psychiatric Evidence – Dr Proud
The plaintiff led expert opinion evidence from Dr Stephen Jay Proud, a consultant psychiatrist. This evidence included his report dated 1 May 2015 (exhibit 6.2), as well as his oral testimony. Having read the report, received his Brief Curriculum Vitae and heard his evidence, I am satisfied that he was well qualified to give opinion evidence as an expert in the field of psychiatry.
Dr Proud ultimately proffered the following opinions:
1.'At face value [RS] described symptoms consistent with Post Traumatic Stress Disorder' (PTSD) which was of 'moderate to marked' severity (ts 63; exhibit 6.2, page 4); and
2.'that [RS] could suffer from a Major Depressive Disorder plus or minus a Paranoid Disorder from the sense of humiliation and shame from the bullying' (ts 65; exhibit 6.2, page 5).
For the purposes of providing an opinion, Dr Proud was provided with information by the solicitors acting on behalf of the plaintiff. Whilst Dr Proud was provided with a report of Mr Beros, he was not provided with any of the records from either Graylands Hospital or Sir Charles Gairdner Hospital. In fact, Dr Proud noted that he did not have any collateral history. He was aware that HS had not been charged with any offence and therefore could 'only take it on face value that [RS] was sexually assaulted because there is always the possibility that it was a consensual arrangement that went wrong' (exhibit 6.2, page 4).
In relation to Dr Proud's diagnosis that RS presented with symptoms consistent with PTSD, both in his report and in his oral evidence he made it absolutely clear that the accuracy of the PTSD diagnosis was reliant upon the veracity of the allegations made by RS that HS had sexually assaulted her (ts 65). Since bullying itself could not cause PTSD, the diagnosis could only be accurate if the allegations of unlawful sexual penetration were true. Furthermore, Dr Proud noted that some of the symptoms that RS displayed that were consistent with PTSD, may have been as a result of a Paranoid Disorder that she may have developed (ts 66).
In terms of the cause of RS's Major Depressive Disorder, plus or minus a Paranoid Disorder, being from 'the sense of humiliation and shame from the bullying', Dr Proud noted in his report some of RS's background which included RS's longstanding marital disharmony. Dr Proud also reported that he detected 'that there appears to have been significant marital difficulties for a long time with her being more educated and the husband not living up to her expectations' (exhibit 6.2, page 2) and 'absolute conflict in her own family of origin' and 'in her marriage' (exhibit 6.2, page 5).
Although Dr Proud opined that [RS] was suffering from a psychiatric illness, the cause of her mental health issues may be difficult to determine or unravel. What is clear however, is that unless RS proves either the unlawful sexual assault alleged to have occurred on 26 January 2009 or any of the subsequent alleged sexual assaults, she could not rely upon any evidence of injury being PTSD which was alleged to have arisen as a consequence.
Indian Culture - Expert Evidence
RS called Dr Devleena Ghosh to give expert opinion evidence in relation culture within the Indian community in Australia.
Associate Professor Ghosh worked in the Faculty of Arts and Social Sciences at the University of Technology, Sydney. She had previously provided expert evidence or opinions to the Legal Aid Commission of New South Wales as well as government bodies such as the Department of Immigration and Multicultural Affairs.
Dr Ghosh was Bengali, but grew up in Rajasthan and Delhi. She held a Bachelor degree from Delhi. She held a Bachelor of Economics (Honours) and Masters in Comparative Literature. Dr Ghosh also gained a PhD in Asian Studies from the University of Sydney in 1996. Her PhD thesis was in relation to Indian culture and the construction of gender and domesticity in India. Most of her research centred on gender in India, including historical constructions of gender and modern ramifications of those constructions.
Dr Ghosh had published work in respected journals and books in relation to the way in which migrant Indian women relate to the experience of migration and the way in which they adjust to a different society with different cultural norms such as the one in Australia. She had researched both the Indian community from Fiji and the Indian community from India who had migrated to Australia. She had studied young Indian people in Western Sydney and their responses to migration. She had researched the ways migrants from India had adjusted to Australian society. She had researched migration and was involved in an historical project looking at the history of relationships between Indian women and Australian women.
I was satisfied that Dr Ghosh was qualified as an expert to give evidence in relation to culture within the Indian community of Australia.
Dr Ghosh had been instructed by RS's lawyers to prepare a report addressing the issues and consequences for an Indian woman in Australia who alleged that she had been raped, including the response of the Indian community to those allegations. Dr Ghosh's report dated 4 June 2016 which attached her curriculum vitae and letter of instructions from MKI Legal dated 12 May 2015, became exhibit 8.
Dr Ghosh – the Indian community in Australia - how members of the Indian community treat an Indian woman who has been raped or alleges that she has been raped
According to Dr Ghosh, rape is still considered a matter of great shame within the Indian Hindu community. In India, Hindu women who have been raped are often ostracised by their families. They are publicly shamed, sometimes even killed. Within that community there is a general tendency towards blaming the victim for the rape. Blame was commonly assigned to the woman on the basis that she had been out without male protection, or that she had worn the wrong clothes, or she had been out at a bad time of the day or at night (ts 132).
According to Dr Ghosh, this attitude extended to the Indian community in Australia and is very prevalent within recent migrants to Australia. This attitude applied especially to Indian migrants who were older or were not born in Australia. Indian women have to maintain the honour of the family and the community and that any shame brought on them as a result of a sexual assault was their fault (ts 132).
Dr Ghosh opined that because of the Indian and Hindu cultural predilection to blame the woman, an Indian woman who had been raped in Australia would find it very hard to confide in her family. This would be especially so in cases where they were not certain of what their husband's or their children's reaction would be (ts 132).
According to Dr Ghosh, the common cultural fears faced by an Indian woman contemplating telling other people, including police, about being raped are:
•the fear of ostracisation (ts 132)
•the fear of rejection and separation from her husband
•fear of rejection by her children (ts 133).
Furthermore, Dr Ghosh noted that there was a history of distrust of police amongst Indian women. There were a number of recorded cases in India where women had gone to police stations to report sexual assault and had not only been disbelieved, but had subsequently been assaulted by the police (ts 133). Consequently, for an Indian a woman, going to the police with a complaint of sexual assault could be a difficult thing to do (ts 133).
Dr Ghosh opined that an Indian woman publicly raising an allegation that she had been sexually assaulted would risk:
•rejection by her husband, in extreme cases even death (honour killings) (ts 134);
•consequences for her daughters, who would bear the shame of her mother and might have difficulty finding marriage partners (ts 133);
•consequences for her son, although to a lesser degree than her daughters (ts 133);
•community disapproval of the woman (ts 133); and
•rejection by her children and their ostracisation from the community (ts 134).
Dr Ghosh said, so far as these risks could be applied to the Perth Indian community, although the extreme reaction of honour killings was unlikely, ostracisation and rejection was quite likely (ts 134).
Dr Ghosh was of the opinion that Indian cultural attitudes in relation to Indian woman who had been sexually assaulted could be applied to the Indian community in Perth. This was because immigration from India to Perth had occurred in the last few decades. Consequently, Indian views would not have altered so significantly in that time.
In the opinion of Dr Ghosh, people who had recently migrated from India may carry with them the cultural traits and practices from India. In that regard, a friendship with a man of the opposite sex was not common in Delhi.
Dr Ghosh gave evidence about the significance of the phrase 'not showing your face' in public. It is a Hindi phrase. According to her, the term within Indian culture was generally understood to mean that the person had done something so shameful that they could not go out into the community or be seen in public. In those circumstances the person's actions are considered so shameful that they have to hide themselves from the world at large so that people were not reminded of their shame which they may forget in the long term (ts 135).
Dr Ghosh went on to say that when the words are said to an Indian woman, culturally it would be interpreted to mean that the woman had done something so shameful, embarrassing and insulting for the family that she should not show herself in public because the woman is a reminder of that shame (ts 135 ‑ 136).
In cross-examination, HS suggested to Dr Ghosh that a woman could falsely accuse a man of rape so as to use the allegations as a weapon against him. Whilst accepting that this could occur, Dr Ghosh noted however that, in her opinion, an Indian woman was unlikely to make a false allegation of rape against a man because of the public repercussions that would flow from such an allegation. Dr Ghosh suggested that because of the shame, ignominy and public repercussions that would follow, it would require an Indian woman to have very significant reasons to put herself in that situation (ts 136).
Asked specifically about the region of India that RS and her husband came from, Dr Ghosh noted the Punjab where RS's husband came from was an area where these attitudes were prevalent. However, Dr Ghosh also noted that even amongst apparently liberal families or communities within India, when it involved their direct family members, there was a 'hidden conservatism' (ts 138). This was particularly the case amongst the Indian middle classes where these attitudes seemed to be more prevalent.
Dr Ghosh noted that Delhi, where RS came from, was renowned for some of the worst and most violent gender crimes in India.
I generally accept Dr Ghosh's evidence that, because of the shame, ignominy and public repercussions that would follow, it would require an Indian woman to have very significant reasons to make an allegation of rape against a man. Importantly in the context of this case, I note that Dr Ghosh's evidence also included her opinion that, within the Indian community, consensual sex between a married woman and a man outside of her marriage may be considered to be socially worse than being raped. This issue is a significant one and is considered further below.
Plaintiff's Documentary Evidence – inconsistencies with the plaintiff's case
A number of issues arise in relation to the documents tendered by the plaintiff during the trial. On their face, some of the documents introduced evidence that was potentially inconsistent with the evidence given by the plaintiff on oath.
Plaintiff's solicitor's letters of instruction sent to Dr Ghosh & Dr Proud
Firstly, the letters of instruction sent by the plaintiff's solicitors to both Dr Ghosh and Dr Proud, both of which were tendered in evidence at the trial (letter to Dr Ghosh - exhibit 8; letter to Dr Proud - exhibit 6.1), asserted that immediately following the alleged sexual penetration of RS by HS on 26 January 2009, RS 'cleaned herself up, didn't say anything to [HS] and got into her car and left [HS's] house'. This statement was contrary to RS's evidence on oath at trial. RS had asserted in evidence that:
•after HS had ejaculated, RS had said to HS:
o that he was an 'animal' for what he had done to her; and
o 'what did you do? I don't want this thing from you. I told you.'
•as she was leaving she said to him 'you are an animal.' (ts 25).
•after she had left the house and was on her way home, HS telephoned her. During that conversation, according to RS, she told him that she could not speak to him because she was shaking and had difficulty driving.
For the purposes of obtaining an expert opinion from Dr Proud, by letter dated 30 April 2015, RS's solicitors attached an earlier report dated 1 May 2013 from RS's treating psychologist Mr Paul Beros (exhibit 6.1). In that report Mr Beros noted that RS reported that following her inpatient admission to Graylands Hospital in September 2011, 'her husband and daughters were rejecting of [her] due to her experience of mental health issues … The daughter assaulted [RS] on her return to the family home and she was shunned by both daughters and her husband'. This is somewhat at odds with the information contained in the Graylands Hospital records under the heading of 'Clinical Management/Risk Assessment' which records:
When her mental state improved, arranged a family meeting with her husband and Children [sic], whom she was ashamed of facing. After the family meeting, her family requested her to return home and [RS] was also eager to go home.
The 'Incident Register'
Secondly, the plaintiff tendered a document called an 'Incident Register' (exhibit 5.1). That document recorded the complaint she made about HS to her employer. The complaint was made on or about 9 May 2011. In that complaint, although she said she had been 'assaulted' by HS, there was no reference to it being a sexual assault. I do not lose sight of the fact that RS's failure to refer to a sexual assault needs to be looked at in context, including the evidence of Dr Ghosh.
Graylands Hospital Records
Thirdly, the medical records from Graylands Hospital (exhibit 11) included a 'history' relating to the plaintiff which included: 'Upset today that police will not charge a male work colleague, for sexual assault which allegedly took place in December 2008'. This is obviously inconsistent with plaintiff's allegation that the first sexual assault occurred on 26 January 2009.
Medical Records – Earlier Mental Health Issues
I note that the medical records (exhibits 10 and 11) also contained a lot of information that strongly suggests that RS had a number of mental health issues well before she met HS and had been unhappy in her marriage for quite some time. The references in the medical records included the following information in relation to RS's background:
•She had a 'long history of depression, and marital unrest with a history of physical abuse – but not since 2007' (Sir Charles Gairdner Medical Records – exhibit 10);
•had been unhappy in her marriage for quite some time;
•her husband was abusive and controlling of her;
•her father had been physically abusive towards her in the past;
•she believed that her daughters did not care about her; and
•She had a 'history of wrist cutting in India' (exhibit 11).
Plaintiff's further evidence in relation to exhibits
The plaintiff did not address the potential inconsistencies (noted above at [153] ‑ [158]) in her initial evidence in chief. Because these statements were potentially relevant to her credit as a witness, I permitted the plaintiff to be recalled to address these issues.
So far as her further evidence in relation to the letters of instruction were concerned, other than to assert that she may not have read the letter of instruction properly before it was sent out, her further evidence did little if anything to assist the court. Nonetheless, I accept that the letters of instruction did not purport to suggest that they included the entirety of the circumstances of the alleged events of 26 January 2009. In the end, nothing really turns on those documents.
In relation to the statement in the Graylands Hospital records (exhibit 11) that included: 'Upset today that police will not charge a male work colleague, for sexual assault which allegedly took place in December 2008', RS denied ever having said that it occurred in 'December 2008'. RS said that at that time she was not in a fit condition to answer questions. RS then suggested that the hospital wrote down the 'wrong date' (ts 291). The two contentions are internally inconsistent with one another. Either RS was not capable of answering questions, or she was and the hospital incorrectly recorded what she said. Furthermore, she then asserted that both Dr Proud and the hospital had made other errors including 'the medical certificate they did wrong [sic]' (ts 290 ‑ 291). Precisely what the other error or errors were was never explained. The only error explained on the evidence relating to Dr Proud was what he described as a 'typo' in relation to the date of '2007' which he recorded in his report as being the date that RS was admitted to Graylands. He corrected that in evidence to be 2011 (ts 61).
Despite having earlier claimed that she was not in a fit condition to answer questions when admitted to Graylands Hospital, RS confirmed that much of the other information recorded in the Graylands Hospital records (exhibit 11) relating to her husband and father was not only true, but that she may have provided the information to the medical practitioners. In any event, RS confirmed the truth and accuracy of the following information disclosed in the medical records, including her records from not only Graylands Hospital, but also from Sir Charles Gairdner Hospital (exhibit 10):
•Her husband had been physically abusive towards her by slapping her;
•That she had been sexually assaulted by a male work colleague;
•Her marriage was an 'arranged' one;
•She was a bus driver;
•That her husband would not allow her to have friends come to the house;
•She had three children;
•Her husband had told her to 'forget it [the alleged sexual assault]';
•She had cut her wrists in India.
Notably, RS denied having mental health problems in India, but confirmed that she had cut her wrists after her father had 'hit [her] very badly' because she was not allowed to talk to certain people (ts 297). Despite what was contained about this in the Graylands Hospital records, RS did not think she had told anyone at Graylands Hospital about cutting her wrists.
It is difficult to accept that, if RS had not been the source of this information, the medical practitioners had somehow accurately recorded these personal details, most of which RS confirmed to be true. On the available evidence, the irresistible inference is that the information had come directly from RS. RS's evidence at times lacked credibility in relation to issues to deal with her hospitalisation and the surrounding circumstances.
Furthermore, as noted above, despite suffering from physical abuse at the hands of her father and cutting her wrists in India, RS denied having mental health problems in India. I do not accept RS's evidence about this.
Ultimately, I note that in answer to questions about her hospitalisation in July 2011 following her attempt to commit, RS said in her evidence that 'I admit in even 2008 I was very sick' (ts 71). Despite this admission, RS told Dr Proud that she had no prior psychiatric problems or trauma (exhibit 6.2 - report of Dr Proud dated 1 May 2015, page 3). This statement to Dr Proud is clearly at odds with the other evidence to the contrary and in my view undermines RS's credibility as a witness.
Whenever her mental health problems commenced, the evidence leads me to the overwhelming conclusion that she was suffering from mental health issues prior to meeting HS.
Conclusions about the relationship between RS and HS – was RS sexually assaulted by HS?
I note the comments of Dr Proud in his report that:
Really at the heart of all this is whether she was being sexually assaulted with the associated shame or whether there was a consensual sexual relationship with associated shame and that the stories of bullying and blackmail have got mixed up in either an outright sexual assault or a consensual relationship that got out of hand.
(exhibit 6.2, page 5)
This statement made by Dr Proud seems to accurately summarise the issues at the heart of this case.
RS's reason for pursuing the allegations against HS
It is of considerable note that RS said that, despite her husband not wanting her to pursue the case against HS, she was doing it 'for my respect' (ts 284). When asked to explain what she meant by that statement, the following exchange took place:
Levy DCJ: Okay. Now, when you first started giving evidence, [RS] today, this afternoon, you said that you're only doing this for your respect. What did you mean by that?
RS:Because I gone through too much humiliation, harassment, threatening, bullying, and this to come from my husband, like, he just - I don't know how to use proper word, and I have no family life left and, like, there - like, my – my daughters, if - if after this case, if I lose, I will lose everything. I can't go back home (indistinct) place, there's a - his friend was keep saying to the ‑ ‑ ‑
Levy DCJ:No, I'm just asking you what did you mean when you said, 'I'm only doing this for my respect'?
RS:Because I have been bullied by some of the driver that I went to - for him do the sex and these things, allegation, I had - like, completely destroy me inside when he laugh at me, his friend laugh at me. Like, I prove I didn't went to his place for myself for sex, nothing, and he just done so much threatening and, 'Can't show your face to the people.' I don't know exact word what I'm saying. It's like - something like I feel (indistinct) like, I feel like low inside.
Dr Ghosh was of the opinion that within the Indian or Hindu community, there was a stigma arising from consensual sex between people outside of marriage. Public knowledge of that would be a cause 'of major shame and ostracisation' (ts 139). Public knowledge of an affair would be looked upon in very similar ways to that of a woman who had been raped (ts 139). If it became public knowledge that a woman had had an extramarital affair, she would be at risk of being ostracised. In addition, there would be similar consequences for her family.
Dr Ghosh suggested that consensual sex between a married woman and a man outside of her marriage may be considered to be socially worse than being raped. A woman in those circumstances may be seen to be of worse character than the victim of a rape because not only was she at fault, but had allowed it to happen. Dr Ghosh was of the opinion that the crux of the issue was 'the fact that [the woman] had had sex outside marriage' and the Indian community would treat both situations in similar ways (ts 140).
I have already noted some of the significant issues that affect both the honesty and reliability of both the plaintiff and the defendant. In my view, there were a considerable number of significant matters that affected their credibility as witnesses in this trial.
Bearing in the mind that it is the plaintiff that carries the burden of proving the claims on the balance of probabilities and noting the test set out in Briginshaw v Briginshaw, I am not persuaded by the plaintiff that any alleged act of unlawful sexual penetration was committed against her by the defendant. On the evidence, whilst the plaintiff may have been somewhat reluctant to engage in sexual intercourse with HS and ultimately came to regret having done so, she has not satisfied me to the requisite degree that any occasion of sexual intercourse alleged against HS was without her consent. In fact, I am satisfied on the balance of probabilities that RS and HS were at some stage involved in a consensual sexual relationship.
Ultimately, I am unable to exclude the possibility that, RS's husband having discovered about the affair and the wider implications for her within the Indian community, RS believed it was necessary for her as a matter of her own 'respect' to make the allegations that she had been 'raped' by HS since that was the 'lesser of two evils' in the 'eyes' the Indian community.
Conclusions - the loans made by RS to HS
I am satisfied that by the time RS and HS met in or about late 2008, there were a number of factors that affected the way that RS behaved and came to be involved with HS.
By late 2008 RS was unhappy in her marriage and had been for some time. By the end of 2008 or early 2009, RS and HS had become very close personal friends. It was also necessary for RS to ensure that her husband and the wider Indian community did not find out about the relationship.
Contrary to HS's evidence about the dates, I am satisfied that RS and HS engaged in consensual sexual intercourse before March 2009. This is an inescapable conclusion given RS's evidence that in March 2009 she believed that she may be pregnant to HS and HS's agreement that he had spoken to her about her fears at that time. I am also satisfied on the balance of probabilities that there were a number of other occasions when they engaged in consensual sexual intercourse.
It is not in dispute that RS lent money to HS on a number of occasions. It is of significance that all of those occasions were at a time before HS left Australia in late 2009 to travel to India to marry. HS's requests for money were made in the period between March 2009 and September 2009. RS acted upon those requests and even took the highly unusual step of obtaining a significant loan for the benefit of HS (the money becoming available in or about October 2009). RS also took steps to ensure that her husband would not find out about the loan by having bank statements sent to a Post Office Box.
I accept the evidence of HS that on or about Valentines' Day 2009, RS gave him a gift. I also accept his evidence that RS bought him prepaid mobile phone cards to enable him to call her undetected by her husband. On the evidence of RS, all of these acts, including the money lent to HS at various times, were carried out or facilitated by her acting under duress and fear of the threats made against her by HS. In my view however, there is a more compelling explanation for her conduct at the time, namely that she was infatuated with HS at the time. In my view, RS behaved in a way that is consistent with doing acts designed to please HS. Indeed, RS's evidence was to the effect that she was prepared, as a friend, to assist HS financially and that the threats made by him to her were unnecessary since she would have lent him the money anyway. That evidence is at odds with her evidence that by that stage she had been violently sexually assaulted by HS. I do not accept her evidence that she would have voluntarily assisted HS financially if she had, on her evidence, been sexually assaulted by him.
I am re-enforced in my view about this by virtue of the fact that RS did not make any complaint about HS until around about May 2011. In my view, the combination of the following factors, which I am satisfied occurred, caused RS to complain about HS, namely:
•HS had defaulted on his loan repayments in April 2011;
•the significant deterioration of their relationship;
•HS's conduct amounting to 'bullying' and harassment including a confrontation in the driver's room in May 2011 when HS threatened to 'ruin [her] life';
•RS's deteriorating mental health (RS was ultimately hospitalised twice in the period between July 2011 and October 2011);
•the social stigma flowing from the revelation that RS had an extra‑marital affair (the evidence from RS included that her husband had covertly recorded her conversations with HS by secreting a recorder in her bag); and
•the threats made by HS that he would tell others about their sexual relationship in circumstances where such conduct carried with it a significant social stigma within the Indian community.
Conclusions on the plaintiff's claim relying upon any act of unlawful sexual penetration
The plaintiff's case in relation to the tort of battery was limited to the allegations relating to 26 January 2009. The plaintiff also relied upon that alleged act of sexual penetration in relation to her claim pursuant to the tort of intentional infliction of harm. The plaintiff also relied upon the other alleged unlawful sexual penetrations as part of her wider claim under the tort of intentional infliction of harm.
So far as RS relies upon the wider claim made under the tort of intentional infliction of harm, the plaintiff did not allege in the alternative that, if the court was not satisfied that the sexual intercourse was unlawful, that the court could nonetheless be satisfied that the defendant had harassed, intimidated, threatened and emotionally abused the plaintiff by coercing and threatening the plaintiff that he would tell others about their sexual relationship. The pleadings were confined to allegations of unlawful sexual penetration (the 'Sexual Assault' pleaded as being committed on 26 January 2009 and the further alleged unlawful acts of unlawful sexual penetration committed by the defendant in circumstances where it is alleged that he forced the plaintiff to have sexual intercourse with him under coercion and threats - see statement of claim 3.1, 3.4). This issue is considered further below.
Consequently, the plaintiffs claim for damages arising from either the tort of battery or the intentional infliction of harm, where the plaintiff relies upon either the alleged sexual assault committed on 26 January 2009 or any other sexual assault committed on any other occasion, must necessarily fail and is dismissed (statement of claim pars 1, 2, 3.1 and 3.4).
Claim for intentional infliction of harm – bullying, harassment, threats and intimidation associated with conduct separate from the allegations of unlawful sexual penetration.
Period between late 2008 and the end of 2009 or early 2010
By the time that RS formed a relationship with HS, she was a vulnerable person. It is clear that she not only had a long history of mental health issues dating back to a time well before migrating to Australia in 1994, but was also in an unhappy marriage. Noting her evidence that she was 'very sick' in 2008, she was either prior to meeting HS in 2008, or very shortly thereafter, suffering from mental health issues.
HS knew about RS's family and that she was Hindu. According to HS, they were never 'romantically involved'. On his account they were very close personal friends and they had sex on occasions (ts 179). He denied ever saying to RS that he wanted more than friendship. He said they were both happy with the nature of their friendship. In my view, HS well knew that RS was infatuated with him and he manipulated their relationship to his benefit. This included persuading RS to lend him money and to swap shifts with him. In my view, whilst I am not satisfied that any of HS's conduct prior to 2010 amounted to threats, intimidation, bullying or harassment, nonetheless I am satisfied that he preyed upon RS's vulnerabilities for his own benefit. HS used the nature of his relationship with RS to persuade her to lend him a significant amount of money. I note that all of the money was made available to him before he went to India to marry at the end of 2009.
Period between early 2010 – February 2012
After HS married in India and returned to Australia, his relationship with RS changed considerably. In my view, in 2010 HS effectively abandoned RS and treated her with some contempt. By April 2011, he had defaulted on the loan repayments due under the Bankwest loan taken out by RS.
I note that in her evidence, RS said that HS stopped threatening her after the police spoke to him, but his bullying and harassment continued until he moved to another depot in 2012. Whilst I do not accept that HS ever threatened her in a manner that caused her to either have non‑consensual sexual intercourse with him or to give him money, I do accept her evidence that at times after HS returned from India he told her that she would not be able to 'show her face'. This was said in the context of a threat to tell others about their sexual relationship. In my view, this threat, which I accept was said on more than one occasion, is of significance given the evidence I have heard about Indian culture and the stigma that arises from extra-marital sexual relations within that community. HS, being Indian was well aware of the significance of the phrase.
I also accept RS's evidence that HS's bullying and harassment of her continued until February 2012. I accept that the bullying, harassment and intimidation by HS was in the following form:
•threatening RS that he would tell others about their sexual relationship;
•on occasions, HS stood with the other drivers and looked at her and laughed with them (ts 43);
•a confrontation between RS and HS at work on 9 May 2011 where HS shouted at RS;
•on one occasion HS told her that the other drivers were talking about her at work and were suggesting that she had a problem and needed money. He told RS that another driver, Chris Martin, was prepared to help her with money but he wanted sex from her;
•on other occasions HS ridiculed her at work by making gestures towards her, including giving her 'the middle finger';
•on occasions he deliberately hugged her in front of the other drivers;
•on occasions he deliberately drove his bus slowly in front of her bus;
•HS told her that he would 'ruin [her] life'.
I have already found that the plaintiff's claims based upon allegations of unlawful sexual penetration were not supported by the evidence to the requisite standard. Consequently, it is now not necessary to consider the law relating to the tort of battery. However, it is necessary to consider the law relating to the tort of intentional inflection of harm.
The elements of the tort of intentional infliction of harm
In JMD v GJH [2012] WADC 124 [14] ‑ [23] Davis DCJ summarised the principles as follows:
This tort has its origins from the principle first stated in Wilkinson v Downton[1897] 2 QB 57, what has come to be known as the tort of intentional infliction of harm. The principle in Wilkinson v Downtonis that if a person wilfully does an act calculated to cause another physical harm, and in consequence causes physical harm including mental distress, a cause of action arises in the absence of lawful justification.
This cause of action has been accepted by the High Court in Bunyan v Jordan (1937) 57 CLR 1, 11 and Northern Territory v Mengel (1995) 185 CLR 307, 347 and applied in a number of cases since.
As in the case of negligence for mental distress, the tort does not extend to any form of psychological damage, but requires a recognised psychiatric condition: Nationwide News Pty Ltd v Naidu [2007] NSWCA 377; (2007) 71 NSWLR 471 [73]; Giller v Procopets (2008) 24 VR 1; [2008] VSCA 236 [165], [471].
Although in some respects an intentional tort is more difficult to establish than negligence, it is not confined by a test of foreseeability and does not involve an inquiry into reasonableness of response: Nationwide News Pty Ltd v Naidu [74], [82].
The mental element of the tort is established where the defendant's action is calculated to cause harm to the plaintiff.
On the issue of what 'calculated' to cause means, it has been said that the word 'calculated' is notoriously ambiguous: it can either mean a subjective, actual, conscious desire to bring about a specific result or it can mean what is likely to occur considered objectively. 'Calculated' is capable of meaning subjectively contemplated and intended, or objectively likely to happen: Carrier v Bonham [2001] QCA 234; [2002] 1 Qd R 474 [12] (McMurdo P) and [25] (McPherson JA); Nationwide News Pty Ltd v Naidu [77], [78].
In Nationwide News Pty Ltd v Naidu; ISS Security Pty Ltd v Naidu[2007] NSWCA 377; (2007) 71 NSWLR 471; [2007] Aust Torts Reports 81‑928 [79] ‑ [80] Spigelman CJ considered in that case whether the defendant's conduct was calculated to cause physical harm, and whether an actual subjective intention was required to be proved. Spigelman CJ concluded that it was not required to prove an actual subjective intention to cause harm and that a test of 'reckless indifference to a result' will satisfy the requirement. Spigelman CJ stated [80]:
It is not necessary, in this case, to decide, as McMurdo P suggests in Carrier v Bonham (at [12]), that 'calculated' means 'likely to have that effect'. It may be that it is sufficient if the result satisfied a test of 'substantial certainty'. However, a test of reckless indifference to a result will, in this context, satisfy the requirement of intention. In the present case, the findings of Adams J establish such reckless indifference and that is sufficient to establish intention, just as it is in the criminal law.
Consequently, even in the absence of a finding that a defendant did actually intend to inflict psychiatric damage, if the nature and scale of his conduct was such as to constitute a recognised psychiatric injury as a natural and probable consequence of that course of conduct, the test will be satisfied: Nationwide News Pty Ltd v Naidu [82].
Conclusions on intentional infliction of harm
I have already found that the threats made by HS to RS that he would reveal to others that he had sexual relations with RS formed part of the conduct amounting to bullying, harassment, or intimidation. I note however, that whilst the plaintiff pleaded in the statement of claim that HS 'harassed, intimidated, threatened and emotionally abused the plaintiff', it was in the context of him having '[c]oerced and threatened the plaintiff not to tell anyone about the Sexual Assault' (see statement of claim 3 and 3.1 – emphasis added).
The plaintiff set out further particulars at 3.1.1 and 3.1.2 to the effect that the threat made by HS to RS was made in circumstances where the defendant well knew that within the Indian community, women who were known to have had sexual intercourse with men outside marriage were 'shunned, shamed and adversely treated by family members and the community' (statement of claim 3.1.1 A, B and C).
The plaintiff did not specifically plead in the alternative, that if the court was not satisfied that the plaintiff had been sexually assaulted by the defendant, that it was still open for the court to find that the defendant had nonetheless made the threat that he would tell people in the community that he had sexual relations with RS. In Water Board v Moutakas (1988) 180 CLR 491, 497, Mason CJ, Wilson, Brennan & Dawson JJ said:
In deciding whether or not a point was raised at trial no narrow or technical view should be taken. Ordinarily the pleadings will be of assistance for it is one of their functions to define the issues so that each party knows the case which he is to meet. In cases where the breach of a duty of care is alleged, the particulars should mark out the area of dispute. The particulars may not be decisive if the evidence has been allowed to travel beyond them, although where this happens and fresh issues are raised, the particulars should be amended to reflect the actual conduct of the proceedings. Nevertheless, failure to amend will not necessarily preclude a verdict upon the facts as they have emerged. See Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658. In Leotta v Public Transport Commission (N.S.W.) (1976) 50 ALJR 666, at p 668; 9 ALR 437, at p 446, a case having been submitted to the jury which was factually different from that alleged in the pleadings and particulars, Stephen, Mason and Jacobs JJ. observed that the pleadings should have been amended in order to make the facts alleged and the particulars of negligence precisely conform to the evidence. The failure to apply for the amendment in that case was held not to be fatal.
Whilst the plaintiff did not specifically plead that she had suffered harm as a result of the mere fact that the defendant had threatened to tell people that they had a sexual relationship (as opposed to having been 'raped'), in my view the issue was sufficiently covered in the particulars (statement of claim 3.1.1) and was the subject of evidence at trial. This included the evidence of RS that HS told her that she would not be able to 'show her face' and the related evidence of Associate Professor Ghosh. Indeed, the defendant was alive to this issue when he cross‑examined Associate Professor Ghosh on whether it was possible for an Indian woman to make up a false claim of rape.
Whilst I am not satisfied that HS deliberately intended to cause RS harm, I am satisfied to the requisite standard that he was recklessly indifferent to the result that would flow from his conduct. In my view, the nature and scale of his conduct was such that the natural and probable consequence of that course of conduct was that RS would suffer a psychiatric injury. HS was not merely an acquaintance of RS. His personal and intimate relationship with her leads me to the overwhelming conclusion that a reasonable person standing in his position should have realised that the sort of conduct that he employed against RS would have a significantly adverse effect upon RS's mental health.
I have already set out my findings of fact that amounted to the relevant conduct carried out by HS. I am satisfied on the evidence of RS that in the period between early 2010 and about February 2012, HS harassed, intimidated, threatened and emotionally abused her in the manner set out at [189] above.
Causation
It is necessary to consider not only whether, following the conduct referred to in [188] ‑ [189] above, RS was suffering from a psychiatric condition, but whether the defendant caused it, as opposed to her condition having arisen from other causes.
RS must, to the required standard, prove a material causal connection between the intentional infliction of harm complained of and the damage suffered by her.
Causation is a question of fact to be determined after the analysis of all available evidence. The 'but for test' is not a comprehensive and exclusive test of causation, rather a value judgment may be called for: March v E & MH Stramare Pty Ltd (1991) 171 CLR 506, Bennett v Minister for Community Welfare (1992) 176 CLR 408; Medlin v State Government Insurance Commission (1995) 182 CLR 1; Chappel v Hart (1998) 195 CLR 232 and BGC Residential Pty Ltd v Fairwater Pty Ltd [2012] WASCA 268 [41] ‑ [43].
I have already noted that RS suffered from mental health issues for some time prior to meeting HS and that she was, at the very least, suffering from mental health issues in 2008. On her own evidence, RS admitted that in 2008 she was 'very sick'. In addition, the combination of various problems and issues suffered and endured by RS in 2010 and 2011 makes it difficult to disentangle them from her pre-existing problems. I note that it is clear that at the relevant time, being the period between early 2010 and 2012, RS was:
•in a very unhappy marriage; and
•already suffering from mental health issues which existed in 2008; and
•suffering from significant pain associated with her spinal injury; and
•on workers compensation payments at some time; and
•having financial difficulties; and
• suffering from the bullying and harassment perpetrated against her by HS.
Whilst Dr Proud said in evidence that the back injury was not the major contributing factor to the major depressive disorder that he diagnosed RS as suffering from, it does not appear that he was ever privy to either the Sir Charles Gairdner Hospital Records (exhibit 10) or the Graylands Hospital records (exhibit 11) which provided information about RS's previous mental health issues. The acknowledged fact that Dr Proud did not have any collateral history in relation to RS, together with the conflicting information contained in the medical records which were tendered by the plaintiff, causes me to have some concerns about the overall accuracy of Dr Proud's opinion and the weight to be attached to his evidence.
A causal connection will be material if it is shown on the evidence not to have been negligible. This requires a careful analysis of RS's evidence in relation to the injury she suffered and its circumstances.
Firstly, RS described the effects of the conduct amounting to bullying, harassment, threats and intimidation associated with conduct separate from the allegations of unlawful sexual penetration. That conduct is set out at [189] above. I accept her evidence that HS's conduct caused her to feel 'bad and stressed' and that she suffered from feelings of embarrassment and shame (ts 44). She also became socially isolated at both work and within the Indian community. She ultimately attempted suicide in July 2011 and was hospitalised suffering from depression in both July and September 2011.
Secondly, on the basis of Dr Proud's evidence in combination with the medical reports and the symptoms described by RS, I am satisfied that she was suffering from a major depressive disorder which followed HS's conduct towards her.
RS, having prima facie established and satisfied me that she was suffering from a major depressive disorder consequent upon the bullying, harassment and intimidation carried out by HS against her, it is for HS to satisfy me that such a disorder and the injuries that she suffered were not caused by his conduct, but rather by some other factor or factors. HS has not satisfied me that his conduct did not materially contribute to the injuries suffered by RS.
Whilst I am not satisfied that HS's conduct, which amounted to bullying, harassment and intimidation, was the only factor causing her major depressive disorder, I am satisfied that it did materially contribute to causing her to suffer from a major depressive disorder. I am satisfied that such psychiatric condition was materially contributed to by RS's 'sense of humiliation and shame from the bullying' (Dr Proud, ts 65). I am satisfied that the bullying, harassment and intimidation materially contributed to RS's attempt to commit suicide in July 2011 and the need for her hospitalisation in July 2011 and later in September 2011. In particular, HS's threats to inform others that he and RS had sexual relations played a significant role in exacerbating RS's already existing mental health issues.
Assessment of damages
Having found liability and causation in favour of RS in relation to her claim brought under the tort of the intentional infliction of harm, it is necessary to assess her injuries, loss and damage. I note that the damages arising from her claim are limited to HS's conduct of bullying, harassment, threats and intimidation which are separate from the allegations of unlawful sexual penetration. The conduct is limited to the period between early 2010 and February 2012 when HS moved to a different bus depot.
I have already found that HS's conduct materially contributed to RS suffering from a major depressive disorder. I also find that HS's conduct contributed to RS's attempt to commit suicide.
The plaintiff set out the damages alleged to have been caused by the defendant, namely 'injury, loss and damage and mental anguish and anxiety' in her statement of claim (par 5), which also included further particulars of the damages. The plaintiff also filed a schedule of damages which included particulars of the damages alleged. The plaintiff's Schedule of Damages included claims for:
General Damages - $100,000.00
Aggravated damages - $80,000.00
Past Medical and Hospital Care - $1,998.00
Future medical and hospital care being:
36 psychiatric sessions - $10,800.00
30 psychological sessions - $6,000.00
Medication (3 years) - $3,000.00
Psychiatric hospitalisations - $10,000.00
General damages
I am satisfied that HS's bullying, harassment and intimidation of RS from 2010 onwards not only materially contributed to her major depressive disorder, but also contributed to her becoming socially withdrawn both at work and within the Indian community. RS suffered a general loss of enjoyment of life. HS's conduct also contributed to RS's attempt to commit suicide. In my view, recognising that there were other contributing factors to the injury and harm suffered by RS, an award of $25,000 is appropriate in relation to her claim for general damages.
Past and future medical expenses
RS gave evidence about being referred to and attending upon Mr Paul Beros, psychologist. The plaintiff tendered a letter of instructions addressed to Abbotsford Psychiatry dated April 2015 which appended a report from Mr Beros', dated 1 May 2013 (exhibit 6.1). Those documents were tendered as part of the instructions provided to Dr Proud. Even if I were able to take this report into account (which I do not, since it was not tendered to prove the truth of its contents, but rather as part of the instructions provided to Dr Proud), according to the information contained in that report, RS first went to see Mr Beros at the end of 2010 or 2011 because her doctor had referred her to him because of the pain she was suffering from associated with the spinal injury incurred in mid‑2010.
Mr Beros was not called as a witness at trial. Other than the report of Mr Beros, there is no evidence about past or future costs associated with any psychological treatment received by RS. In any event, the past and future psychological treatment appears to be associated with RS's treatment for:
•Post‑traumatic stress disorder;
•Back pain issues; and
•Her family issues requiring counselling.
None of the above matters are referrable to my finding that RS was suffering from a major depressive disorder.
In terms of any evidence relating the quantification of any past or future medical expenses referrable to my findings, the only admissible evidence before me was that contained in Dr Proud's report at page 5, which expressed an opinion that RS:
•needs monthly psychiatric consultations for the next two to three years at a cost of $300 per session;
•needs ongoing care from a general practitioner at a cost of $1,000 per annum for medication and review over the next two to three years;
•is 'at high risk of future psychiatric hospitalisations at a cost of $10,000 for two weeks in the private sector'.
There are a number of problems associated with the above.
Firstly, apart from the psychiatric consultations, there is no breakdown of the actual costs. The claims are extremely general in nature.
Secondly, in my view, it would be necessary to reduce the amounts claimed to recognise that there were other contributing factors that caused RS to suffer from a major depressive disorder and to suffer the injury and harm.
Recognising the above, I am satisfied that RS will need future care and treatment to deal with her major depressive disorder and the risks associated with her suicidal ideation. Based upon the available evidence, an award in the global amount of $5,000 is appropriate to cover any future medical or psychiatric needs associated with her major depressive disorder.
Plaintiffs claim for aggravated damages
The plaintiff seeks an award of aggravated damages on the basis that:
(a)the defendant's conduct in failing to admit the allegations in the statement of claim and opposing the claims has increased the plaintiff's suffering; and
(b)the harm inflicted upon the plaintiff by the defendant was done with contumelious disregard for the plaintiff's rights in an insulting and malicious manner.
Although pleaded as 'aggravated damages', the claim that 'the harm inflicted upon the plaintiff by the defendant was done with contumelious disregard for the plaintiff's rights' is the sort of language commonly used to refer to exemplary damages.
Aggravateddamagesare awarded to compensate a plaintiff when the harm done by a wrongful act was aggravated in the manner in which the act was done: Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118, 149. It is a key requirement of a claim for aggravated damages that the conduct must have increased the plaintiff's suffering. In New South Wales v Ibbett (2006) 229 CLR 638, the High Court described aggravated damages as 'a form of general damages, given by way of compensation for injury to the plaintiff, which may be intangible, resulting from the circumstances and manner of wrongdoing' (per Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ at [31].
Unlike aggravated damages, 'exemplary damages' do not focus on the injury to the plaintiff, but rather on the conduct of the defendant which is said to be so reprehensible that it warrants that the defendant should pay an additional amount of tort damages: see Fleming, The Law of Torts, 10th ed [10.130] at 284. It is generally recognised that exemplary damagesare awarded rarely and, while they recognise fault, not every finding of fault warrants their award: see the plurality in Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1 [12]. It is also the case that exemplary damages chiefly, if not exclusively, arise in cases of conscious wrongdoing in contumelious disregard of the plaintiff's rights: Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1 [20]. It is the conscious and contumelious conduct carried out in disregard for a plaintiff's rights which gives rise to the need to deter the defendant from committing like conduct again. Exemplary damages are not given in order merely to compensate the plaintiff - see Uren v John Fairfax & Sons Pty Ltd and XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1985] HCA 12; (1985) 155 CLR 448, 471, 472.
In my view, this is not an appropriate case for an award of either aggravated damages or exemplary damages for a number of reasons. Firstly, the very nature of the claim brought pursuant to the tort of intentional infliction of harm was on the basis that HS's conduct amounted to bullying, harassment and intimidation. It seems to me to be somewhat duplicitous to also seek aggravated or exemplary damages on the basis that the conduct was contumelious.
Secondly, the plaintiff has failed to satisfy me to the requisite standard that much of the conduct alleged against the defendant actually occurred. Consequently, the plaintiff can no longer claim that the defendant's refusal to admit the allegations in the statement of claim and opposing the claims was not justified.
Thirdly, I have found that the defendant's conduct was not carried out with a deliberate intention to cause harm, but rather that the defendant was recklessly indifferent to the result that was objectively likely to occur.
The defendant's conduct does not, in my opinion, fall within the category of the sort of conduct that exhibits the kind of conscious and contumelious disregard of the plaintiff's rights as would justify an award of exemplary damages as both punishment and deterrence: Lord Diplock in Cassell & Co Ltd v Broome (No 2) [1972] AC 1136. In my view, in all the circumstances of this case, the award of $25,000 for general damages properly reflects and incorporates the defendant's conduct amounting to bullying, harassment and intimidation in all the circumstances of this case.
Conclusion and orders
There should be judgment for the plaintiff in the sum of $30,000 made up as follows:
General damages $25,000
Future medical and psychiatric treatment, care and medication $5,000
I will hear from the parties on costs.
I also make an order that no person is to publish any particular of this action or proceedings in this trial that is likely to lead members of the public to identify the plaintiff or the defendant.
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