S (a pseudonym) v R (a pseudonym)

[2020] NSWDC 906

District Court

New South Wales

Medium Neutral Citation:

S (a pseudonym) v R (a pseudonym) [2020] NSWDC 906

Hearing dates:

10 September 2020

Date of orders:

18 December 2020

Decision date:

18 December 2020

Jurisdiction:

Civil

Before:

P Taylor SC DCJ

Decision:

(1) I make an order pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) ("the Act"), that the name and identity of the Plaintiff and Defendant and any other person mentioned in the judgment be suppressed except as may be necessary for the proper conduct of these proceedings, upon the grounds that the order is necessary to protect the safety of the Plaintiff, inclusive of psychological safety, and in relation to the public interest pursuant to sections 8(1)(c) and 8(1)(e) of the Act. This order is to apply throughout the Commonwealth of Australia.

(2)   Judgment for the plaintiff in the sum of $167,500.

(3)   Defendant to pay the plaintiff's costs.

Catchwords:

DAMAGES – assessment of damages – general and aggravated damages – sexual abuse

Legislation Cited:

Civil Liability Act 2002, s 3B

Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7, s 8

Cases Cited:

Croucher v Cachia [2016] NSWCA 132

Gersbach v Gersbach [2018] NSWSC 1685

KS v GR [2020] NSWDC 73

Lamb v Cotogno (1987) 164 CLR 1; [1987] HCA 47

MC v Morris [2019] NSWSC 1326

Shalhoub v State of New South Wales [2017] NSWDC 363

State of New South Wales v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208

Category:

Principal judgment

Parties:

S (a pseudonym) (plaintiff)
R (a pseudonym) (defendant)

Representation:

Counsel:
Mr S Hunt (plaintiff)

Solicitors:
Carroll & O’Dea Lawyers (plaintiff)

File Number(s):

2019/337945

Publication restriction:

Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (“the Act”), that the name and identity of the Plaintiff and Defendant and any other person mentioned in the judgment be suppressed except as may be necessary for the proper conduct of these proceedings, upon the grounds that the order is necessary to protect the safety of the Plaintiff, inclusive of psychological safety, and in relation to the public interest pursuant to sections 8(1)(c) and 8(1)(e) of the Act. This order is to apply throughout the Commonwealth of Australia.

Judgment

1. At the outset, I make an order pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), that the name and identity of the plaintiff and defendant and any other person mentioned in the judgment be suppressed except as may be necessary for the proper conduct of these proceedings upon the grounds that the order is necessary to protect the safety of the plaintiff, inclusive of psychological safety, and in relation to the public interest pursuant to ss 8(1)(c) and 8(1)(e) of the Act. This order is to apply throughout the Commonwealth of Australia.

INTRODUCTION

2. Samantha Smith [1] met Robert Rigby when she was 13 in about 1999.  He was 52.  They married when she was 21, and she gave birth to their four children during the marriage, the last of whom was born in September 2014.  In about July 2016, Ms Smith visited a solicitor and commenced the process of “separating and divorcing.” 

   1. This is a pseudonym. As are all other names in this judgment.

3. In August 2016, Ms Smith reported some early incidents of her relationship with Mr Rigby that involved sexual conduct.  As a result of that reporting, Mr Rigby was convicted of sexual intercourse with a child under the age of 16 years, and was sentenced to and served a term of imprisonment.  Their marriage has ended, a property settlement was finalised, and she has custody of the children.  She sues for damages for sexual abuse. 

4. No defence was filed by Mr Rigby and default judgment was granted with damages to be assessed. The assessment of those damages is informed by the allegations in the statement of claim, which are by the default judgment accepted to be true, and by the evidence in the assessment hearing.  The evidence principally comprises Ms Smith’s oral evidence and her affidavit, to which was annexed her police statements, court documents, including a facts sheet, a statement of agreed facts signed by Mr Rigby, a record of Mr Rigby pleading guilty to one count of sexual intercourse with a person under 16 years in satisfaction of all counts in the indictment, a record of the sentence imposed, and a victim impact statement of Ms Smith.  The evidence also included a psychiatrist’s report prepared for the proceedings and two reports from a psychologist who undertook counselling sessions with Ms Smith in 2017 and 2018.

ISSUES

5. A claim for damages for sexual assault falls outside the provisions of the Civil Liability Act 2002, according to s 3B(1)(a) of the Act. [2]   There is no claim for lost earnings, lost earning capacity, care or past medical treatment.  Apart from a modest claim for future medical treatment in the form of counselling, the damages claimed are for non-economic loss, that is, general damages for pain and suffering under the common law, including aggravated damages and interest.

   2. Gersbach v Gersbach [2018] NSWSC 1685 at [480], MC v Morris [2019] NSWSC 1326 at [1].

THE STATEMENT OF CLAIM

6. Ms Smith sues in respect of the sexual relationship with Mr Rigby occurring prior to her 16th birthday.  The statement of claim (at [5] and [10]) alleges:

“regular occasions of sexual acts, including:-

a. Sexual intercourse;

b. Oral sex;

c. Digital penetration of the Plaintiff’s vagina; and

d. Fondling of the Plaintiff’s genitals”,

7. and that as a result, the plaintiff suffered:

“a. Anxiety.

b. Depression.

c. Embarrassment.”

8. I note that the statement of claim does not refer directly to the plaintiff touching the defendant’s genitals, although the specification of the sexual acts is an inclusive and not an exhaustive definition. 

9. As a component of her compensatory damages, Ms Smith claims (at [16]) aggravated damages embracing:

“conscious wrongdoing in contumelious disregard of the Plaintiff’s rights and needs as a child”;

“prolonged [conduct] over several years while the Plaintiff was of a vulnerable age”; and

“carried out in a furtive and predatory manner in abuse of the Defendant’s authority over the Plaintiff”.

10. The particulars assert injuries of “Adjustment Disorder with Depressed Mood and Anxiety” and disabilities are listed as:

“1. Anxiety.

2. Depression.

3. Severe diminution in her ability to enjoy leisure and domestic pursuits.

4. Flashbacks.

5. Hyperarousal.

6. Nervousness about the future.

7. Difficulty sleeping.”

THE LAW

11. The law of battery embraces any physical conduct unless the defendant is “utterly without fault”[3] and thus embraces sexual touching. As indicated, the claim is limited to the sexual relationship between Mr Rigby and Ms Smith before she turned 16 years of age. 

    3. Croucher v Cachia [2016] NSWCA 132 at [21].

12. Ms Smith’s entitlement to general damages is “to compensate a plaintiff for all of the physical harm and mental harm suffered by that plaintiff as a result of the conduct of the defendant”.[4]   It does not involve a separate award for each occasion of sexual abuse.[5]  

    4. Gersbach at [504].

    5. KS v GR [2020] NSWDC 73 at [45].

13. Aggravated damages “are compensatory in nature, being awarded for injury to the plaintiff’s feelings caused by insult, humiliation, and the like”. [6]   Double counting of damages is to be avoided,[7] but an entitlement to aggravated damages is to ensure that the plaintiff is not undercompensated, and that compensation for hurt feelings is included.

    6. Lamb v Cotogno (1987) 164 CLR 1 at [8]; [1987] HCA 47.

    7. See State of New South Wales v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208 at [130].

THE SEXUAL ABUSE

14. The following account is derived principally from Ms Smith’s oral evidence, police statement, victim impact statement, and her expert psychiatrist report. 

15. Ms Smith was raised in a family of nine children consisting of her stepsiblings and half siblings, some being children of her mother, some of her stepfather, Xavier Kelly, the man she regarded as her father, and some of both of them, and herself.  She initially believed Mr Kelly was her biological father and had a good relationship with him. 

16. Mr Kelly died when Ms Smith was 12.  It was a devastating event for the family.  Four children, including Ms Smith, remained at home with her mother, who was especially adversely affected by the death.  Mr Kelly had regarded education as important, but her mother not so much.  After her father died, Ms Smith, being rather headstrong, changed from progressing well at school to being consistently absent.

17. Not long after Mr Kelly died, his stepfather, who she called her “Pop”, was babysitting her and her younger sister.  After her sister had gone to bed, Pop “took hold of my hand, and put it on his penis”. Ms Smith “was very shocked and uncomfortable”. She was driven home and never returned to her Pop’s house. 

18. At this time, Ms Smith’s mother appears to have been troubled with grief and unable to look after the children.  She began meeting up with “heaps of other guys” and would “palm us off to anyone who would take us,” said Ms Smith.  One such man was Pete, also known as Leonardo Lima, with whom Ms Smith was left for the night when she was aged 13.  This man abused Ms Smith, “touching me in a very inappropriate manner.  He did not actually penetrate me”. 

19. Soon thereafter, Ms Smith’s mother met one Charles French and moved into his house.  Ms Smith regarded Mr French as “very controlling and nasty” and she “just wanted to get away from the whole situation”.

20. In 1999, Ms Smith met the defendant, Mr Rigby, through an online chat service when Ms Smith initially thought she was speaking with his daughter, Natalie Draper, who was a close friend of Ms Smith’s mother and who Ms Smith had known since she was a young child.  The next day, Mr Rigby and Natalie Draper picked up Ms Smith and she stayed at Natalie Draper’s place for the day.  Mr Rigby was 52 years old at the time. 

21. Subsequently, in about March 1999, Ms Smith assisted Mr Rigby to look after Natalie Draper’s children.  Whilst Ms Smith was watching one of the children on a computer, Mr Rigby started tickling her and “touched her breasts on numerous occasions” and also “grabbed me on the groin area, touching my vagina”. Ms Smith said, “I didn’t really think very much about this at the time”. 

22. On the same visit, Mr Rigby bought Ms Smith a mobile phone with some credit, supposedly so Ms Smith could call him if a problem arose with her mother’s boyfriend.  Ms Smith “really thought that Robert was very kind, and thought that he was trying to look out for me”.

23. At this stage, Ms Smith was living with her mother in Tarro in the Newcastle area.  Mr Rigby returned to Wagga Wagga, where he lived with his wife.  Ms Smith and Mr Rigby then commenced regular (“basically every day”) internet chats until after midnight.  The chats involved Ms Smith’s problems at home and some sexually explicit conversations. 

24. Mr Rigby asked Ms Smith to come and stay with him and his wife during the first half of 1999 before Easter.  She stayed for two weeks and returned home.  During that fortnight while Mr Rigby’s wife was out at work, Mr Rigby touched Ms Smith’s breasts and put his fingers into her vagina while they were watching television.  Afterwards she was “quite sore”. On at least two other occasions during that visit, Mr Rigby touched Ms Smith’s vagina and breasts. 

25. On another occasion during that two-week visit, Mr Rigby “took my hand and put it inside his underpants and onto his penis”. Ms Smith “was very uncomfortable”.

26. At age 13 [8] or 14, [9] Ms Smith resided with her biological father, Tim Peterson, and his wife for about three months.  She said Mr Peterson did not believe Ms Smith to be his biological daughter and Mr Rigby convinced her that the family’s rules were too controlling, so she returned to live with her mother, where she could stay up until 1am or 2am speaking to Mr Rigby on the phone. 

    8. Affidavit of Samantha Smith, 9/9/20, Annexure A at [26]; p 43 of plaintiff’s tender bundle (“PTB”).

    9. Exhibit A, p 3.8; p 17.8 of PTB.

27. Mr Rigby would from time to time visit the Newcastle area.  When he did, he would visit Ms Smith and “touch my breasts, touch my vagina”. She said:

“I didn't even let myself think about what Robert was doing to me. My home life was not great, and Mum didn't really look after us kids very well, and I really didn't like Mum's partner. Robert seemed to be a better option…I did not really have any close friends that I could talk to.” [10]

10. Affidavit of Samantha Smith, 9/9/20, Annexure A at [27]; p 43 of PTB.

28. Mr Rigby would, when Ms Smith was younger, buy her lots of things, credit on the mobile phone he purchased, clothing, shoes, other items, take her out to dinner, or away.  Mr Rigby would contact her at recess and lunch while she was at school.  She remarked how Mr Rigby had persuaded her that her relationship with her best friend, Ben, was not appropriate and that her mother should have stopped her friendship with Ben, that she should end the relationship and cease all contact, and that she should similarly not form friendships with other boys.

29. On one occasion in 1999, Mr Rigby took Ms Smith to a motel and “groped me, touched my breasts and vagina…then made me touch his penis and masturbate him...until he ejaculated”. This happened again on another two occasions when Ms Smith was about 14 years old.  She said, “I was uncomfortable, but it was easier to just let him do it, so that it was over”.

30. On another occasion when Ms Smith was 14 years old, Mr Rigby asked Ms Smith to perform oral sex, which she did after he gave her instructions.  When they visited motels, Ms Smith was not with Mr Rigby when they entered the motel.  On one occasion, he was “very concerned that we were being followed” as they went to a motel.  Mr Rigby also instructed her not to share with others their conversations and to delete their written communications. 

31. Ms Smith reported to the psychiatrist that the visits of Mr Rigby were “hush-hush” so as not to upset Mr Rigby’s daughter, Natalie.  Ms Smith said of Mr Rigby “back then he was my happy person”. The psychiatrist reported Ms Smith saying that the relationship “became sexual in nature” when Ms Smith was 15, [11] although elsewhere the report indicates it was when Ms Smith was 13 or 14 years of age. [12]

    11. Exhibit A, p 5.3; p 19.3 of PTB.

    12. Exhibit A, p 11.3; p 25.3 of PTB.

32. In September 2000, Mr Rigby became completely naked during a game he created apparently for the purpose of assisting Ms Smith with a school assignment.  In December 2000, Mr Rigby again “put his finger into [Ms Smith’s] vagina” around the time of Ms Smith’s 15th birthday. 

33. In 2001, while Ms Smith was still 15 years of age, Mr Rigby had sexual intercourse with her.  She said, “I remember that I did not know what I was doing” and “this was the first time that I had engaged in sexual intercourse”. [13] He put on a condom.  She said, “I consented to this.  It was easier than stopping him”. [14]  

    13. Affidavit of Samantha Smith, 9/9/20, Annexure A at [35]; p 45 of PTB.

    14. Affidavit of Samantha Smith, 9/9/20, Annexure A at [35]; p 45 of PTB.

34. Shortly before her 16th birthday, Ms Smith got a prescription for the contraceptive pill at Mr Rigby’s direction and visited him in Wagga Wagga while his wife was away.  There they had sexual intercourse “on at least two occasions”.

35. Thereafter, Mr Rigby’s marriage broke down and he commenced living with Ms Smith.  They married in September 2006, when Ms Smith was 21.  They had four children, born in 2008, 2010, 2013 and 2014. 

36. Ms Smith said that as a young teenager, she could not tolerate her mother’s partner and “I found that Robert was a safer option and I thought that at least he looked after me and treated me okay”. She said Mr Rigby was controlling and she never told anyone what was happening.  She concluded:

“I never said no to Robert when he wanted to touch me or have sex with me.  I thought I loved Robert, but he has always been very controlling and manipulative.” [15]

15. Affidavit of Samantha Smith, 9/9/20, Annexure A at [42]; p 47 of PTB.

37. She said she “never really considered” that what occurred was sexual assault.  But after the birth of her daughter, she “realised how wrong Robert’s actions have been...and how vulnerable I was”. 

38. Ms Smith stated that Mr Rigby was critical of her family and “put a barrier up between us”.

39. Mr Rigby was charged with 18 counts involving either aggravated indecent assault or sexual intercourse with a person under 16 years.  He pleaded guilty to one count of sexual intercourse with a person under 16 years, the first occasion of sexual intercourse with Ms Smith when she was 15 in 2001 that I have described earlier.  The signed agreed facts in these proceedings included the statement:

“The act of penile-vaginal intercourse is representative of a broader course of sexual activity between the offender, and had been preceded by other occasions of (less serious) sexual misconduct during the year 2000.” [16]

16. Affidavit of Samantha Smith, 9/9/20, Annexure E at [7]; p 73 of PTB.

40. At the sentencing of Mr Rigby, Ms Smith prepared a victim impact statement.  She recounted the death of her father and her vulnerability and stated:

“When I was about 13 or 14, Robert offered to help [my mother] sort out my issues…Robert started taking over all my spare time. He got upset if I didn't answer all his calls or messages…He would get angry with me. He isolated me from my friends. I couldn't visit them because Robert would want me on the phone to himself.

Robert was the only adult involved in my life-he convinced me that he was the only person I could trust and that he was my best friend and only true friend. We had to keep everything private from other people. He even drove up to visit from Wagga and took me to a motel rooms. When [my mother] no longer wanted me, she sent me to live with my biological father. Robert hated this and became frustrated at losing control. He kept on at me till that relationship broke down. He convinced me to move out on my own with some support from him.

Robert was occasionally providing financial support, buying 'label' clothing, mobile phone, phone credit, transport costs, restaurant dates, takeaway. This continued when I moved out from home when I was 14 years old. He provided advice about schooling and convinced me I needed him to do well at school as well. He knew better than me because he was a teacher.

I was 14, living on my own in a bedsitter organised by the Raymond Terrace Neighbourhood Centre. I was responsible for my own finances, and every aspect of living alone. I didn't have many friends left and relied on Robert for support in all areas.

At some point, Robert persuaded me to have sex with him. I trusted him and he convinced me that he knew better than me.

When Robert presented me with a condom, I was confused and bewildered about how the relationship had progressed to this point. I'd never even seen one before! I was confused and mentally removed myself from the situation as I wasn't coping during intercourse. I just felt numb.

I feared a hostile reaction if did not comply with Robert's gesture to perform sexually.

I felt I did not have any choice but to go along with his wishes through [a] sense of obligation, and felt concern if [I] didn't go ahead with the sex [I was] afraid that his relationship and support would be lost.

After he started having sex with me, Robert's level of control increased over me, I couldn't challenge him about anything.

I was not allowed to have friends who were boys or look at boys at all. Robert demanded I cut links with any boys even my age and abandon their friendships. These demands increased after he started having sex with me.

I was discouraged from talking or mixing with members of my family. Robert convinced me that all my family were no good and 'should not have any contact with them.” [17]

17. Affidavit of Samantha Smith, 9/9/20, Annexure G; pp 76-77 of PTB.

41. Ms Smith expressed how she went “from a child to an adult in what seems like a moment” and that she missed “normal teenage friends and experiences”. She expressed being “prevented from having peer relationships including normal sexual experiences and conversations” and she has reduced self-confidence, “wanting and needing reassurance and help with everyday choices and tasks”. 

42. Ms Smith also recounted in 2007, after her marriage, when she was about 21 years of age, she attended the funeral of her Pop, Xavier Kelly’s stepfather.  At the funeral, she was engaged in conversation with her uncle and Mr Rigby pulled her into the trailer, verbally abused her for flirting with other men.  She said Mr Rigby continued to cut her off from her family as he had done during her teenage years.

43. Ms Smith recounted how she subsequently met again her childhood friend, Ben.  She remarked in evidence that he is gay and so she said there was no chance of inappropriate conduct.  She felt that they had limited mutual understanding and cannot compare things, for she was then in a relationship with a man 40 years her senior while Ben was going to pubs and parties, things which she never experienced.  When she told this to Mr Rigby, he instructed her not to go near Ben because she could change his sexuality.  Similarly, she said her relationship with her siblings has been fractured, that she has no contact with any of them.  She spoke of her younger brother feeling that she had abandoned him.  She says, “They have no idea, no understanding what happened, thinking it was my doing and choice but it really wasn’t”. She has no contact with her mother.

44. During the period of the relationship prior to Ms Smith turning 16, she said Mr Rigby “said the right things at the right time”. He gave her “all the attention in the world” and “love and care” that she “was not getting at home” nor “from anyone else”. The control Mr Rigby exercised over her from those early days never ceased, she said. 

45. Ms Smith says that since the relationship ended in divorce, she has had no intimate relationships, and as she knows no other relationship than the one with Mr Rigby, she has never had a relationship with someone her age.  She says she finds safety with her children, for she does not know who else she can trust.  She is still burdened by habits Mr Rigby instructed her to adopt, such as to never look at or talk to others.

46. Ms Smith said she had sought treatment during the time with Mr Rigby, but on Mr Rigby’s instructions, she never mentioned that their relationship commenced when she was less than 16, even when she had counselling.  She was given antidepressant medication, but she stopped taking it because, although it helped her to sleep, she was fearful that she might not wake up to get her children should they be in danger.  She says she finds a benefit in regularly attending boot camp training.  She has moved from the Newcastle area, principally because she wants to avoid all contact with Mr Rigby, who is now released and has completed parole.  She expressed that Mr Rigby could get to her through her children.  She feels less safe now that Mr Rigby is out of gaol and has finished parole. 

47. Ms Smith says she has a social work degree, presumably obtained while still in the relationship with Mr Rigby, but has not worked for the past five or six years.  She said that she was able to do the social work because she is good at not thinking of her own situation when counselling others.

ANALYSIS 

48. The following matters are relevant for consideration. 

49. First, the child sexual abuse involved several occasions continuing for in excess of a two-year period at a time when Ms Smith’s dysfunctional family life, her age, childhood status, and the recent death of her beloved stepfather left her vulnerable to Mr Rigby’s attention. 

50. Secondly, the assaults involved fondling, digital penetration, oral sex, and sexual intercourse. 

51. Thirdly, the sexual abuse has had a lasting impact, including adversely impacting on the formation of new intimate relationships.  The psychiatrist reported:

“Her description suggests that [Mr Rigby] was a self-centred man who used the young [Ms Smith] for his own needs without sufficient regard to her developmental needs to develop peer relationships and immerse herself in her education. Nonetheless, she was able to complete her high school education and attend university and obtain tertiary qualifications. Unfortunately, the relationship with [Mr Rigby] interfered with Ms Smith’s normal psychosexual development.” [18]

18. Exhibit A, p 12.8; p 26.8 of PTB.

52. Fourthly, Ms Smith was diagnosed with adjustment disorder with depressed mood and anxiety, principally resulting from the relationship with the defendant. 

53. Fifthly, although there was no lawful consent, the conduct of Mr Rigby did not involve force or violence.  However, the assessment of damages focuses on the damage to Ms Smith, not the gravity of the conduct by Mr Rigby.  No exemplary damages are sought and would not be available since Mr Rigby has been punished for his crimes.  Features of the conduct of Mr Rigby may nevertheless be relevant in supporting or explaining the damage alleged.

54. Sixthly, factors other than the relationship with Mr Rigby that may be relevant to Ms Smith’s diagnosed condition include the death of Mr Kelly, “a major disruption of an important relationship and attachment for Ms Smith”, [19] the neglect and lack of nurturing and proper parenting by her mother after Mr Kelly died, the two occasions of sexual abuse involving her Pop and Leonardo Lima before she met Mr Rigby, and her poor relationship with Mr French.  These matters, reported her psychiatrist, “probably played a role in her later development of an anxiety and depressive disorder but also in making her a much more vulnerable and needy child”. [20]

    19. Exhibit A, p 12.5; p 26.5 of PTB.

    20. Exhibit A, p 12.7; p 26.7 of PTB.

55. Seventhly, because of the nature of the claim, only the sexual abuse in the relationship with Mr Rigby is compensable as a tort.  Damages cannot include the sexual conduct after Ms Smith turned 16, nor the controlling nature of their relationship, including Mr Rigby severing her family relationships and friendships, except perhaps to the extent that those events arose from the underage sexual abuse, as indicated in her victim impact statement.  Some of her current complaints may still be present even if Mr Rigby had postponed any sexual relationship until Ms Smith was 16, although there is a real prospect that without the sexual abuse, Ms Smith may have moved away from Mr Rigby’s controlling influence.  The Court cannot award compensation for other non-tortious offences not alleged in the statement of claim that occurred in the relationship that adversely affected her life, or resulted in disagreeable, upsetting memories if they are not caused by the abuse.

56. It is evident that some of the matters caused by Mr Rigby that trouble Ms Smith currently - the ending of childhood friendships, the prohibition on developing new friends, and the separation from family - are not directly attributable to the period of unlawful sexual conduct by Mr Rigby, but arose by reason of his controlling nature at the time, and the separation that he caused from friends and family.  These are not matters alleged to be breaches of duty in the statement of claim so that any damages resulting from them are outside the ambit of this assessment, again, except so far as they were caused or materially contributed to by the underage sexual abuse.

57. Conversely, Ms Smith is entitled to compensation for the damage from the sexual abuse.  That includes not only the occasions of abuse, whether or not she regarded them as troublesome at the time, as she surely does now, but also includes the diagnosed psychiatric condition on the basis that the sexual abuse materially contributed to it and other established consequences of the abuse. 

58. It is a difficult exercise to separate the consequences of the unlawful tortious conduct of Mr Rigby involving sexual abuse, from other undesirable conduct not tortious or not pleaded extending over a period of 20 years.  Whilst the period of sexual abuse is only a small period chronologically of the whole relationship, it occurred when Ms Smith was young and is evidenced to have caused trauma, especially as she matured and understood its gravity and criminality.  I regard the sexual abuse in the early years as significant and influential, even if not then seen by her as the dominant wrong she endured.

59. Finally, as indicated, damages are not to punish Mr Rigby for his grievous behaviour - this was accomplished by his conviction and prison sentence - but to compensate Ms Smith for her loss and damage. 

60. The circumstance that these proceedings involve an action by one spouse against another for events that happened before a marriage is not a matter that precludes the claim or substantially impacts on the quantum of damages.  If any public policy ever operated to restrict actions for pre-marital sexual abuse in times past, it might be thought that those times are gone.  This Court hearing an ex parte matter is not the occasion to explore the history or conclusion of any such policy.  In the result, the process of assessment of damages might not be materially different if, hypothetically, Ms Smith had ended the relationship with Mr Rigby when 16 years of age, and had subsequently met, married, had children with, and recently divorced, another person.  In either case, the focus is on the acts and consequences of the sexual abuse of Ms Smith before she turned 16.

61. In all the circumstances, I conclude that Ms Smith’s disabilities and present condition were significantly contributed to by her early sexual abuse.  The cause of her diagnosed psychiatric condition is evidenced to be the relationship as a whole, involving the sexual abuse and her difficulty spending her later childhood, adolescence, and young adult years with a man so much older than herself who was so controlling of her behaviour. 

62. In the past 10 years, Ms Smith appears to have made significant progress with her life, despite her earlier difficulties.  The psychiatrist reports that Ms Smith is “not taking any medications or tablets” and stated:

“Her prognosis is good. In spite of the many negative aspects of her developmental history, Ms Smith does have some resilience. She is willing to work at her problems and to develop herself. There are no complicating factors, such as a severe personality disorder or the development of substance abuse. She has developed considerably more insight over time, and these are all good prognostic factors.” [21]

21. Exhibit A, p 13.8; p 27.8 of PTB.

63. The psychiatrist also reported:

“Ms Smith reported that she hopes to return to work and she is not certain what she will do. At the time of the evaluation, she was receiving a parenting benefit. She has felt very welcome in the new little town and she has met some nice people. She has made a few friends and she has 2 friends who reside approximately 90 minutes away. She stated that she feels free now and she loves living in the town and she stated that she hopes that [Mr Rigby] will not find her. She reported that she is still friendly with her friend, Olivia, whom she has known since preschool. She stated that [Mr Rigby] had tried to break that relationship but she stood firm about that and she speaks with Olivia every day now. She stated that previously she had not spoken with Olivia between the ages of 15 until she got married.

She reported that she has developed a routine with the children. It was difficult for her to discipline them at first but everything has become calmer and much smoother. There are no problems with the children's behaviour at school and they are learning … She reported that she now speaks with her father, Tim, approximately weekly after reconnecting with him two years ago. Their relationship has been ‘on a rollercoaster’. She reported that the question about whether she is Tim Peterson's biological child or not has never been resolved but she stated that she does not really want to explore the matter at the moment…

Ms Smith reported that next year she would like to make some friends not through her children and she is not going out with anyone. She added, ‘I've got to sort myself out first’. She reported that she is trying her best to move on but many of the people she has been involved with in her life have either not been what they said they were or they have in some way abandoned or rejected her. She stated that in the past she would always apologise to people and chase after them but ‘I don't feel like that now’. She stated that she feels nervous about having a man in her life as she does not think she could compromise and she does not believe she could really have a man telling her what to do any more. She reflected that she has never experienced compromise in a relationship and she noted that her mother's relationships had not lasted and have been dysfunctional.

Ms Smith reported that she is keeping busy with the children and she had been busy with the moving around and her legal matters. She stated that she has been attending a gym class every week which she enjoys. She stated that she is enjoying listening to music and watching television. She stated that she goes shopping, does the housework and cooks for herself and the children. She denied any difficulty with driving her car, which she has just paid off and she is managing her own finances.

She stated that her mood is so much better than it was and she added, ‘I'm genuinely a lot happier’. She reported that she goes to bed around 10.00pm and she gets up at around 7.00am and she readies the children and takes them to school. She stated that she is sleeping a lot better. She denied experiencing enduring nightmares, intrusive recollections or flashbacks. She is well organised and she has developed a routine for the children. She reported that her motivation has significantly improved and that her concentration is satisfactory. She reported that she is eating well and her weight is stable. She is looking forward to the future and she reported that she expects to return to work at some future time.

She reported that a couple of times a week she would consume one to two glasses of wine or spirits but she stated there has been no increase in her alcohol consumption and she has never regularly become intoxicated. She reported that she does not smoke cigarettes or marijuana.” [22]

22. Exhibit A, pp 7-9; pp 21-23 of PTB.

QUANTUM

64. Taking all these matters into account, I award the sum of $120,000 for general damages.  This sum is awarded as compensation for both the acts of abuse and their psychological consequences, recognising that other factors not compensable contribute to Ms Smith’s current condition. 

65. As much of this is for the past, I would allow the 1% interest[23] claimed on $100,000 for the period of 20 years, being $20,000.  I also include the amount of $7,500 claimed for 20 sessions of counselling with a psychologist, as recommended by her psychiatrist. 

    23. Shalhoub v State of New South Wales [2017] NSWDC 363 at [184].

66. Ms Smith claims aggravated damages.  Although the evidence does not disclose injury to Ms Smith’s feelings resulting from insult, humiliation, and the like, at the time of the abuse, I am satisfied that with her understanding and maturity, she has experienced these feelings in more recent times as she has reflected on the predatory and controlling nature of Mr Rigby that led to the abuse.  I award $20,000 for aggravated damages. 

ORDERS

67. The orders of the Court are:

1. I make an order pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) ("the Act"), that the name and identity of the Plaintiff and Defendant and any other person mentioned in the judgment be suppressed except as may be necessary for the proper conduct of these proceedings, upon the grounds that the order is necessary to protect the safety of the Plaintiff, inclusive of psychological safety, and in relation to the public interest pursuant to sections 8(1)(c) and 8(1)(e) of the Act. This order is to apply throughout the Commonwealth of Australia.

2. Judgment for the plaintiff in the sum of $167,500.

3. Defendant to pay the plaintiff's costs.

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Endnotes

Decision last updated: 20 May 2021