S, M v S, RK
[2019] SADC 184
•4 December 2019
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
S, M v S, RK
[2019] SADC 184
Judgment of Her Honour Judge Schammer
4 December 2019
DAMAGES - PARTICULAR AWARDS OF GENERAL DAMAGES - SOUTH AUSTRALIA - GENERALLY
TORTS - TRESPASS - TRESPASS TO THE PERSON - ACTION FOR DAMAGES
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - GENERALLY - SUFFICIENCY
The plaintiff claims damages for the sustained sexual abuse, rape and sexual assault occasioned on her by the defendant, her adoptive father, from when she was aged 3 to 18.
The defendant pleaded guilty to one count of maintaining a sexual relationship with the plaintiff and is serving a sentence of imprisonment. He did not file a Defence to the action, which proceeded as an Assessment of Damages.
The Assessment is complicated by the paucity of evidence relied upon by the plaintiff in proof of her claim and the impact on the plaintiff of other non-compensable injuries and illnesses.
Held:
Judgment for the plaintiff in the sum of $744,093.84.
I will hear the parties further as to costs.
Limitation of Actions Act 1936 ss 3A, 36; Limitation of Actions (Child Abuse) Amendment Act 2018 ; Criminal Law Consolidation Act 1935 ss 20, 50(1), 50(2), 50(7); Civil Liability Act 1936 s 52; Supreme Court Act 1935 s 30C; District Court Act 1991 s 39; Superannuation Guarantee Charge Act 1992 ; Superannuation Guarantee (Administration) Act 1992 , referred to.
Cribb v Freyberger [1919] WN 22; Trevorrow v The State of South Australia (No. 5) [2007] SASC 285; Trevorrow v The State of South Australia (No. 6) [2008] SASC 4; Wheeler v Page (1982) 31 SASR 1; Medlin v SGIC (1985) 182 CLR 1; Husher v Husher (1999) 197 CLR 138; Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; State of New South Wales v Riley (2003) 57 NSWLR 496; Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71; State of New South Wales v Delly (2007) 70 NSWLR 125; Fontin v Katapodis (1962) 108 CLR 177; Gray v Motor Accident Commission (1998) 196 CLR 1; R v D (1997) 69 SASR 413, considered.
S, M v S, RK
[2019] SADC 184Introduction
This is an assessment of damages with respect to a claim made by S, M (the plaintiff) against her adoptive father, S, RK (the defendant) arising from his alleged sexual abuse, assault and rape of her on a regular and continuous basis from when she was aged three, until she was aged 18 (the abuse).[1]
[1] Statement of Claim (SOC) at [6], noting however that the Statement of Loss (SOL) at [2.2] refers only to abuse from the ages of 3 to 12 and the SOC refers to the abuse continuing until the plaintiff was aged 27.
The plaintiff was born on 14 August 1974 and shortly thereafter was put up for adoption by her biological mother. The defendant and his wife commenced caring for the plaintiff on 27 September 1974 and formally adopted her on 25 March 1975.
In 2017, the defendant was arrested and subsequently charged with one count of maintaining an unlawful sexual relationship with the plaintiff pursuant to s 50(1) of the Criminal Law Consolidation Act 1935 (CLCA). He pleaded guilty to that charge and on 23 January 2019 was sentenced to a term of imprisonment of nine years, seven months, one week and three days, with a non-parole period of seven years and eight months. The defendant is currently serving that term of imprisonment.
By Summons and Statement of Claim dated 5 March 2019, the plaintiff claims to have suffered injury, loss and damage as a result of the abuse and seeks by way of remedy; damages of $1 million, exemplary and aggravated damages, costs and interest from the defendant.
In the absence of the defendant filing a Defence, by order of a Master made on 4 July 2019, default judgment was entered in favour of the plaintiff as against the defendant, with damages to be assessed.
The Hearing
The Assessment of Damages was listed for hearing on 12 August 2019.
The plaintiff was represented by her solicitor, Mr Carpenter. The defendant was not in attendance and until recently had not participated in the action, noting that he has been in custody for its duration.
The plaintiff has, from time to time, filed affidavits, sworn by her solicitor, attesting to the steps taken by her solicitors to serve documents on the defendant and to keep the defendant informed as to developments in the action.[2] I am satisfied that the defendant had the opportunity to participate in the action from the outset, in that he has been served with relevant documents and been informed of the dates of relevant hearings, including the date of the hearing of the Assessment of Damages.
[2] Affidavit of Andrew Geoffrey Carpenter affirmed on 6 March 2019, Sixth Affidavit of Andrew Geoffrey Carpenter affirmed on 10 July 2019 and Eighth Affidavit of Andrew Geoffrey Carpenter affirmed on 31 July 2019.
The plaintiff elected not to give oral evidence.
The plaintiff relied on the following documentary evidence:
1Affidavit affirmed by her on 10 April 2019 (Second Affidavit), wherein reference is made to an earlier affidavit affirmed by her on 6 March 2019 (First Affidavit).[3] There are two annexures to the Second Affidavit, being Annexure MS-1, a statement the plaintiff made to police on 30 November 2016 (the first police statement) and Annexure MS-2, a statement the plaintiff made to police on 2 September 2017 (the second police statement). There are four annexures to the First Affidavit, but only Annexure MS-2, the Sentencing Remarks of His Honour Judge Costello dated 23 January 2019, is relevant to the assessment of damages.
2Statement of Loss affirmed by the plaintiff on 5 June 2019. There are two annexures to this document being Annexure MMS-1, the report of Dr Blakemore dated 22 May 2019 and Annexure MMS-2, the plaintiff’s curriculum vitae.
[3] Noting the First Affidavit was filed in support of an application seeking an order for a Freezing Order and deals predominantly with matters unrelated to the assessment of damages.
I received and considered an Outline of Argument (Outline) and heard very brief oral submissions at the hearing.
After the hearing, and at a Directions Hearing attended by both the plaintiff’s solicitor and the defendant by way of video link from custody, I raised with the plaintiff’s solicitor concerns I had with respect to certain gaps in the evidence and the manner in which the claim was pleaded.
Thereafter I received from the plaintiff:
1Further affidavit affirmed by the plaintiff on 10 October 2019 (the Fourth Affidavit). There are two annexures to the Fourth Affidavit, Annexure MMS-1, a report of Dr Ashley Ng dated 3 October 2019 and Annexure MMS-2, a report of Mr Jason Gill, Clinical Psychologist dated 3 October 2019.
2Two volumes of material containing data from the Australian Bureau of Statistics relating to Average Weekly Earnings from 1991 to 2019.
3Further affidavit affirmed by the plaintiff on 18 November 2019 (the Fifth Affidavit). There is an annexure to the Fifth Affidavit, Annexure MMS-1, being a printout of expenses incurred by the plaintiff at the Kidman Park Pharmacy from 15 June 2016 to 17 June 2019.
Preliminary Issues
In the absence of a Defence being filed and a Default Judgment being entered under Rule 229 of the District Court Civil Rules 2006, the allegations in the pleadings with respect to the causes of action so pleaded are deemed to be admitted.[4]
[4] Cribb v Freyberger [1919] WN 22
To assess the plaintiff’s damages, the parameters of the Claim, for which liability is deemed to be admitted, must be determined. This relates both to the period during which the abuse is alleged to have occurred and the nature of the abuse alleged to have been inflicted on the plaintiff by the defendant.
Period of Abuse
The plaintiff relies upon s 3A of the Limitation of Actions Act 1936 (LAA), introduced by the Limitation of Actions (Child Abuse) Amendment Act 2018. Pursuant to that section, an action for damages relating to personal injury to a person resulting from the abuse of the person when the person was a child, may be brought at any time and is not subject to a limitation period under the LAA, or any other Act or law.
Pursuant to s 36 of the LAA, all (other) actions for damages for personal injuries to a person must be commenced within three years next after the cause of action accrued.
The action was commenced on 5 March 2019, when the plaintiff was aged 44. The plaintiff has not otherwise pleaded an entitlement to an extension of time, meaning any claim she may have had for damages for personal injury sustained by her as a result of the defendant’s abuse when she was an adult, is statute barred.
As such, although the plaintiff pleads that she was abused by the defendant when she was aged between three and 27, her claim is confined to a claim for damages arising from her abuse by the defendant until she turned 18.
Nature of Abuse
‘Abuse’ is defined in s 3A LAA to include:
(a) sexual abuse;
(b) serious physical abuse;
(c) psychological abuse related to sexual abuse or serious physical abuse.
In the Statement of Claim, the plaintiff pleads a claim for injury, loss, damage and/or harm ‘due to years of persistent rape, sexual assault and sexual exploitation by the defendant’.[5]
[5] SOC: Introduction.
The acts comprising the abuse are described generally as ‘multiple instances of sexual abuse, assault and rape’ and are particularised in detail at paragraphs 11-59 of the Statement of Claim. The matters particularised all relate to ‘sexual abuse’ and therefore fall within the definition of ‘abuse’ in s 3A LAA.
However, when the pleadings are cross-referenced with the evidence, namely the matters set forth in the Statement of Loss, and as outlined in the plaintiff’s affidavits and her history to Dr Blakemore, it is apparent that the plaintiff attributes at least part of her loss and damage to acts and omissions of the defendant, which are not expressly pleaded, and/or conduct which may not fall within the definition of ‘abuse’ in s 3A LAA. These are allegations of:
1sexual harassment;
2deliberate malnourishment; and
3psychological manipulation by way of perpetuating unreasonable fears in the plaintiff designed to prevent her from leaving the home and resulting in the development of agoraphobia.
Sexual Harassment
In the Statement of Loss, the plaintiff says that the defendant sexually harassed her until she was aged 27 (the sexual harassment).[6] This conduct is said to have included the defendant making inappropriate and sexualised comments to her. The plaintiff says that both the sexual abuse and the harassment caused her to be inhibited in her schooling and to suffer significant physical and psychological injuries.[7]
[6] SOL at [2.2]-[2.5].
[7] SOL at [2.6].
The Statement of Claim does not plead a specific claim for damages as a result of sexual harassment.
In the Introduction to the Statement of Claim, the claim is described in general terms as arising from ‘rape, sexual assault and sexual exploitation’ of the plaintiff by the defendant. Sexual harassment is not rape. The issue then becomes, is sexual harassment either ‘sexual assault’ or ‘sexual exploitation’, such that the plaintiff is entitled to damages for loss and damage caused by the defendant’s sexual harassment of her when she was a child? If not, the pleadings do not include a claim arising from the defendant’s alleged sexual harassment of the plaintiff.
For the purposes of the criminal law, ‘sexual assault’ is conduct which must include an ‘assault’. For there to be an assault, there must be either; an intentional application of force, the making of physical contact, a threat to apply force, an act of which the intended application is to apply force, or the accosting or impeding of a person in a threatening manner.[8] I am not satisfied that the conduct described by the plaintiff as ‘sexual harassment’ fulfils any of these requirements, or otherwise falls within the ordinary meaning of the term ‘sexual assault’.
[8] Section 20 Criminal Law Consolidation Act 1935.
Prior to its amendment in 2017, s 50(1) CLCA prescribed the offence of ‘persistent sexual exploitation of a child’. Pursuant to s 50(2), ‘an act of sexual exploitation’, for the purposes of s 50(1), was defined in the following terms:
A person commits an act of sexual exploitation of a child if the person commits an act in relation to the child of a kind that could, if it were able to be properly particularised, be the subject of a charge of a sexual offence.
Section 50(7) defined ‘sexual offence’ by reference to other provisions in the CLCA.
While this is not a criminal proceeding, the action arises out of alleged conduct by the defendant for which he was prosecuted and pleaded guilty and other similar conduct particularised in the pleadings.
I am not satisfied that ‘sexual harassment’ of the nature described by the plaintiff in the Statement of Loss falls within the parameters of the claim as pleaded against the defendant.
Similarly, in her first police statement, the plaintiff states that as she developed as a teenager, the defendant would constantly comment with respect to her body and weight, resulting in her becoming very self-conscious and developing anorexia, such that when she was 20, she weighed 50 kg. Again, this is not conduct which is expressly particularised in the Statement of Claim, nor is it, in my view, either ‘rape, sexual assault or sexual exploitation’ of the plaintiff.
Insofar as the plaintiff may have suffered loss and damage arising from such conduct, it falls outside of the parameters of the claim as pleaded.
Deliberate Malnourishment
In the Statement of Loss, the plaintiff describes long term effects she attributes to being malnourished by the deliberate acts of the defendant, with her food being cooked separately from the rest of the family, in a gas oven without the flame being turned on. She remembers often getting food poisoning as a result. She expresses the belief the defendant did this with the deliberate intention of keeping her skinny so that he could continually rape her. She claims that she was then too physically weak to fight back when the defendant would sexually abuse, assault and rape her.[9]
[9] SOL at [6.2.21]-[6.2.22].
In the Statement of Claim, the plaintiff alleges to have suffered ‘an eating disorder’ as a result of ‘the sexual abuse, assaults and rape’,[10] however there is no pleading in the Statement of Claim consistent with an allegation that the defendant deliberately malnourished the plaintiff in the manner described by her in her Statement of Loss and in her police statements.
[10] SOC at [69j].
In the first police statement, the plaintiff refers to weighing only 55 kg and of being too scared to eat. In the second police statement, the plaintiff states that in her ‘earlier years’ she believed her parents were poisoning her, such that she started cooking her own meals and by the time she was ten, she was solely in charge of cooking the family meals.
It is arguable that any such conduct, insofar as it could be attributed to the defendant, is ‘serious physical abuse’ and therefore ‘abuse’ within the meaning of s 3A LAA. However, these allegations are not pleaded, and, given their specific nature, in my view do not fall within the ambit of the claim. As such, I cannot award the plaintiff damages against the defendant for any loss caused by such conduct.
As the plaintiff attributes her eating disorder both to the ‘sexual abuse, assault and rapes’ (compensable) and to the sexual harassment and deliberate malnourishment (both not compensable), this presents some challenges in terms of causation and loss.
Psychological Trauma resulting in Agoraphobia
In the Statement of Claim, the plaintiff alleges to having suffered agoraphobia as a result of ‘the sexual abuse, assaults and rape’ as particularised therein.[11]
[11] SOC at [69k].
In the Statement of Loss, the plaintiff describes being psychologically traumatised by the defendant such that she became fearful to leave the home (the psychological trauma). She attests to developing severe agoraphobia due to the defendant constantly advising her not to leave the house because of a storm warning or potential earthquakes, or because she looked sick. She claims this resulted in her not leaving the house for a period of 11 years and says that the condition remains symptomatic, inhibiting her ability to work and engage in social and recreational activities.[12]
[12] SOL at [2.19].
In her police statements and in her history to Dr Blakemore, the plaintiff attributed such conduct to both the defendant and her mother, and a belief that this was done deliberately so she would not leave the house.
By reference to s 3A LAA, for any such conduct on the part of the defendant to be ‘abuse’, such that the plaintiff can pursue a claim, out of time, for damages arising therefrom, the conduct must be ‘psychological abuse related to sexual abuse’.
I am satisfied that such conduct on the part of the defendant comprises psychological manipulation and control of the plaintiff by him, being a form of psychological abuse potentially consistent with and therefore related to the allegations of sexual abuse made against him by the plaintiff.
Although the plaintiff does not allege that the sexual abuse was in any way facilitated by such conduct, the plaintiff says that most of the abuse occurred within the family home, and although the ‘major abuse’ is said to have stopped when she was about 12, the plaintiff says that following the defendant’s release from jail (and therefore within the 11-year time frame as pleaded), the defendant would expose himself to her and touch her inappropriately. In the Statement of Claim it is pleaded that between about 1987 to 1993, again being within that 11-year timeframe, the defendant would regularly force the plaintiff to watch him masturbate himself to ejaculation.
I am satisfied that the defendant’s psychological manipulation of the plaintiff, designed to prevent her from leaving the home, was ‘psychological abuse related to sexual abuse’ and therefore ‘abuse’ within the meaning of s 3A LAA and therefore compensable.
The pleadings contain no reference to the specific conduct described by the plaintiff in both the Statement of Loss and in her history to Dr Blakemore as being the cause of the development by her of the agoraphobia. Notwithstanding this, I am satisfied that the pleadings are broad enough to be construed to cover any loss and damage arising from such conduct.
Other
In her Fourth Affidavit, the plaintiff says as follows:
My Statement of Claim is based on the guilty plea of the defendant for the crimes he committed against me prior to my 18th birthday. … As such I have limited my claim to the ten assaults the defendant plead guilty to committing against me despite hundreds if not thousands of sexual assaults, abuses and rapes being committed over the years by the defendant.
However, the claim is not pleaded in this manner. Rather the claim expressly pleads ten specific incidents but also makes it clear that in addition the plaintiff was subjected to years of ongoing and sustained abuse of a similar nature by the defendant.
The claim is premised on an assertion that the years of sustained abuse by the defendant have impacted on virtually every aspect of the plaintiff’s life and personality, shaping the person she has become. To endeavour to assess damages based only on the ten specific pleaded incidents, in a vacuum, is not only an entirely artificial and almost impossible exercise, but is inconsistent with the manner in which the claim has been pleaded and the evidence presented.
Summary
The plaintiff’s claim is assessed on the basis that it is a claim for damages arising from her sexual abuse by the defendant, during the period when the plaintiff was aged between three and 18, as particularised in the Statement of Claim. The abuse includes the ten specific incidents pleaded and the other more general allegations of ongoing and sustained abuse as pleaded.
The claim includes injury, loss or damage caused by the psychological trauma, but does not include any claim arising from alleged sexual harassment or deliberate malnourishment by the defendant.
The Abuse
Background
The plaintiff is now aged 45. She lives alone, with her two dogs, and has a female partner. She has no children and has never been married.
As a child, the plaintiff lived with the defendant and her adoptive mother at the family home at Fairview Park. She has two older siblings; a brother who is also adopted and another brother who is the biological child of her adoptive parents. She left home at the age of (about) 25, to live with her then boyfriend. She has spent a period of time homeless.
The plaintiff first recalls being sexually abused by the defendant when she was aged about three. As such, many of the plaintiff’s earliest memories as a child relate to the abuse she suffered at the hands of the defendant. The abuse is said to have been of the most serious kind, occurring on an almost daily basis, up until the plaintiff was aged about 12.[13]
[13] SOL at [2.2] and [2.4].
The plaintiff claims the abuse occurred mostly at the family home at Fairview Park and comprised the defendant perpetuating a series of sexual acts on her including touching her on the vagina, breasts and anus, causing her to perform acts of fellatio and masturbation, masturbating himself in front of her and raping her vaginally, anally and digitally.
The defendant was arrested and then imprisoned for sexually abusing one of the plaintiff’s friends when the plaintiff was aged about 12. Following his release from jail, the defendant returned to live at the family home and the abuse continued, although on the plaintiff’s account the nature of the abuse changed. The plaintiff recalls the defendant molesting her in her bedroom on an occasion following his release, but otherwise says that from thereafter, the abuse mostly comprised the defendant masturbating in front of her and touching her on her vagina, and buttocks, together with psychological abuse.[14]
[14] Report of Dr Blakemore at p.2-3.
The plaintiff also describes significant difficulties arising from the fact that she continued to attend the same school, where the students knew of the defendant’s actions. She describes having very few friends, and of being bullied and harassed by the other students about the defendant’s conduct. She describes growing up feeling very alone and alienated from friends and family.
The Ten Pleaded Incidents
The Statement of Claim refers to ten specific acts of sexual abuse recalled by the plaintiff, with these specific incidents also being described by the plaintiff in her police statements. There are some inconsistencies in the manner in which some of these incidents have been pleaded, when compared to the plaintiff’s description of them to police. The ten incidents are:
1In 1978, when the plaintiff was aged about three, the defendant placed her on his lap in the kitchen and rubbed his erect penis on her vagina.[15] In doing so, the plaintiff claims the defendant forced her legs so wide apart her hips felt as if they had been pushed out of their sockets, and that he moved her underwear to one side, meaning her vagina was exposed. She claims to have struggled to walk afterwards due to hip soreness.[16]
2In about 1978, when the plaintiff was aged about four, her adoptive mother used stockings to tie her wrists to the bed post to stop her from getting out of bed. While her wrists were so tied, the plaintiff claims the defendant entered her bedroom, lifted her night gown and touched her on her vagina, breasts and anus.[17] In her second police statement the plaintiff describes this incident as occurring when her right wrist and right ankle were tied to the bed posts, and said the defendant rubbed ‘my tummy, my chest and the outside of my vagina’.[18]
3On Christmas Day 1978, when the plaintiff was aged four, the family was at her adoptive grandparents’ house. The plaintiff claims the defendant took her into the lounge room, forcefully spread her legs open causing her pain and touched her on the vagina and anus.[19] In her second police statement the plaintiff describes this incident as involving the defendant putting her on his lap and engaging in a ‘horsey ride’, such that she was sitting on one of his legs, being held by the wrists, and moving both backwards and forwards, and up and down on his leg. She said the way the defendant pulled and lifted her was very rough and that it really hurt her vagina. This stopped when others entered the room.[20]
4On or about New Year’s Day 1979, when the plaintiff was aged four, the plaintiff’s family was at her adoptive great-grandparents’ shack at Parham (the shack). The plaintiff claims the defendant took her into a room away from the family and touched her on the vagina, breasts and anus, masturbated in front of her and then forced her to masturbate him, until he ejaculated.[21] In her second police statement the plaintiff described this incident as occurring in the annexe to a caravan, when the defendant removed her clothing prior to her participating, at his suggestion, in a ‘swimsuit parade’ for children on the beach. The plaintiff claims the defendant rubbed her vagina, nipples and ‘arse’, and that while he was doing so he was masturbating. He then positioned her hand on his penis and made her move it back and forth. She did not remember him ejaculating.[22]
5In or about the Easter holidays of 1980, when the plaintiff was aged about five, the plaintiff’s family was at the shack. The plaintiff was playing hide and seek outside with the defendant and one of her brothers. The plaintiff claims that after the defendant found her hiding behind some bushes, he touched her on the vagina, breasts and anus and then anally raped her.[23] In her second police statement, the plaintiff said that when the defendant found her, he knelt down behind her, pulled her pants down such that she was naked from the waist down, held her wrists and pulled her onto his lap. She described feeling his erect penis ‘pushing between my arse cheeks’. She remembered it really hurting, and feeling pressure on her anus, but said ‘I’m pretty sure it didn’t go inside’.[24]
6In about late 1980 or early 1981, when the plaintiff was aged about six, she was taking a shower at home when the defendant walked into the bathroom. The plaintiff claims the defendant took her out of the shower and into the lounge room, closed all the doors, and touched her vagina, breasts and anus, and then anally raped her. She claims that he then told her that if she ever told anyone about the incident he would ‘take her to Parham, kill her then bury her so no one could find her.’[25] In her second police statement, the plaintiff describes this incident as occurring after they had arrived home from a trip to the shack and her mother was unpacking the car. She said the defendant was sitting on the lounge, and she was standing up, between his legs, facing away from him. She was wrapped in a towel, which the defendant rolled down, and then dropped to the floor. She said the defendant stared at her, concentrating on her vagina and dried her with the towel. She described him as locking his legs so that she could not move and pulling her back onto his erect penis, which he pushed between her ‘arse cheeks’. She described feeling very cold and said she did not want it to happen. At the time the defendant made the threat, he spoke softly, but had grabbed her wrists and was squeezing them really hard, which hurt her. He had then rubbed her all over her body.
7In 1983, when the plaintiff was about eight, the defendant forced her to have a shower. The defendant came into the bathroom while the plaintiff was showering and masturbated outside the shower. He then reached into the shower and touched the plaintiff on her vagina, breasts and anus and then raped her.[26] In her second police statement, the plaintiff says this incident occurred when her mother had taken her brothers shopping and she was home alone with the defendant. She says that while she was showering, the defendant was masturbating, and that he continued to masturbate while he touched her, pretending to clean her, but concentrating on her vagina. She says that when he dried her she was facing him. He lifted her up by her elbows, put his hands under her ‘arse’ and completely stretched her vagina and ‘arse cheeks’ really wide apart, which hurt such that she was hysterical. He then bounced her up and down on his penis really roughly and tried to insert his penis into her vagina several times, which really hurt, ‘but couldn’t get it in’. He then rubbed her up and down against his penis.[27]
8In about late 1983, when the plaintiff was aged about nine, the defendant forced her to have a shower after playing cricket. The plaintiff alleges that while she was showering, the defendant came into the bathroom, locked the door and touched her on the vagina, breasts and anus.[28] In her second police statement, the plaintiff says that when she and the defendant arrived home from cricket, no one else was home and he locked the back door, which was strange. She said the defendant took her clothes off and forced her into the shower. He then rubbed her body violently with soap which really hurt and she became hysterical. She said ‘I know that Dad sexually assaulted me after this, but I was so distressed that I have blanked the details out. I know I was sexually assaulted because I remember lying on my bed crying afterward. My body was completely lifeless’.[29]
9In about 1986, when the plaintiff was aged about 12, the defendant entered her bedroom when she was sleeping.[30] He woke her up, placed her hand on his erect penis and forced her to masturbate him.[31] In her second police statement, the plaintiff says that she always wore pyjamas when she slept and wrapped herself up tightly in her quilt as she was scared someone would come in and get her. She pretended to be asleep, but the defendant untucked the quilt, grabbed her arm and put her hand on his penis. She said he moved her hand back and forth a few times, but stopped when her mother called out for him. She said, ‘Dad snuck into my room countless times after that’.
10Between 1987 to 1993, when the plaintiff was aged between 13 and 18/19, the defendant would regularly force the plaintiff to watch him masturbate himself to ejaculation.
[15] SOC at [11]-[13].
[16] Second Affidavit, Annexure MS-2.
[17] SOC at [14]-[16].
[18] Second Affidavit, Annexure MS-2.
[19] SOC at [17]-[21].
[20] Second Affidavit, Annexure MS-2.
[21] SOC at [22]-[27].
[22] Second Affidavit, Annexure MS-2.
[23] SOC at [28]-[33].
[24] Second Affidavit, Annexure MS-2.
[25] SOC at [34]-[40].
[26] SOC at [41]-[46].
[27] Second Affidavit, Annexure MS-2.
[28] SOC at [47]-[50].
[29] Second Affidavit, Annexure MS-2.
[30] This was after he was released from custody for the indecent assault of her friend (further details below).
[31] SOC at [51]-[56].
The plaintiff pleads that on multiple occasions over the years the defendant committed further acts against her including touching her on the vagina, breasts and/or anus, causing her to perform ‘an acts (sic) of fellatio’, causing her to perform acts of masturbation, masturbating himself in front of her, and raping her vaginally, anally and digitally.[32]
[32] SOC at [59].
Criminal Proceedings
As previously stated, the defendant pleaded guilty to one count of maintaining a sexual relationship with the plaintiff.
In the Statement of Claim the plaintiff also pleads ‘the defendant plead guilty to the above offences’, by reference to the allegations set forth in paragraphs 8-59.[33]
[33] SOC at [60].
The Sentencing Remarks of Judge Costello dated 23 January 2019 are in evidence. In those remarks Judge Costello described the circumstances of the offending as comprising a series of unlawful sexual acts upon the plaintiff when she was aged between three and 12, including the following:[34]
·Touching her on the vagina;
·Touching her on the breasts;
·Causing her to perform an act of fellatio upon him;
·Inserting his penis between her buttocks;
·Penetrating her labia majora with his penis; and
·Penetrating her labia majora with his finger.
[34] First Affidavit, Annexure MS-2.
Relevantly, the Sentencing Remarks do not confine the defendant’s conduct to the ten specific incidents of abuse recalled by the plaintiff.
I am not privy to the sentencing submissions made before Judge Costello. As such, the precise factual basis upon which that plea was entered is unknown. However, I understand the defendant entered his plea after admitting to having sexually abused the plaintiff during a taped telephone conversation with her.
Abuse by Others
The assessment of the plaintiff’s damages is complicated by her claim that she claims she was also sexually abused by her uncle (the defendant’s brother) for many years as a child between the ages of three and 12.[35] The plaintiff claims that abuse comprised multiple instances of sexual assault, abuse and rape, which occurred whenever her uncle was alone with her.
[35] SOL at [8.1].
There are no documents in evidence relating to this alleged offending.[36]
[36] For example, any police statements: see Fourth Affidavit at [10]-[18] as to the attempts the plaintiff and her solicitors have made to obtain access to the plaintiff’s statement made to police with respect to her uncle’s alleged abuse.
Criminal proceedings against the plaintiff’s uncle arising from these allegations are in their early stages and ongoing.[37]
[37] Fourth Affidavit at [18]-[19].
The plaintiff also claims that in 2015 she was brutally raped by a male at a party at Nairne.[38] The offender was apparently jailed after being convicted of assault. Again, there are no documents in evidence relating to the circumstances of this incident (such as police statements, a record of outcome of the proceedings, or sentencing remarks).
[38] SOL at [8.2], Annexure MMS-1 at p 5.
Finally, the plaintiff claims she was subjected to abuse by other students at her school at the age of about 14. She says that students at her school learned of the defendant’s conviction for sexually abusing her friend and tormented her because of this, including an occasion when a group of boys stripped her naked at a park near her house and verbally harassed her. She still suffers from flashbacks from this moment.[39]
[39] SOL at [8.3].
Comment
I am mindful of the inconsistencies in the evidence when compared to the pleadings. Although I do not intend to list them, I note that there are also apparent inconsistencies in the history as provided by the plaintiff to Dr Blakemore and what she told the police.
The plaintiff did not give oral evidence and I did not have an opportunity to form my own impression of her reliability and credibility as a witness. Had she given evidence she would not have been subjected to cross-examination in any event, given the defendant’s non-attendance at the hearing.
As this is an assessment of damages, the allegations in the pleadings as to the defendant’s conduct comprising the causes of action are deemed to be admitted.
There may be explanations for the apparent inconsistencies. Further, it is understood that the trauma of sexual abuse on children may impact on a victim’s ability to accurately recall the abuse, because of years spent trying to forget the abuse, rather than to remember it. The passage of time is also a relevant factor.
However, I have been cautious in my assessment of the plaintiff’s claim as to damages insofar as her affidavit evidence is not otherwise supported by independent or medical evidence.
The Injuries
The plaintiff claims to have suffered the following injuries as a result of the defendant’s abuse:[40]
[40] SOC at [69].
1Injuries to her wrists from being tied to the bed posts while the defendant sexually abusing her;[41]
[41] In her Fourth Affidavit at [6.2], the plaintiff refers also to having suffered injuries to her feet as a result of such conduct, and from the defendant manipulating her limbs in order to rape her.
2Injuries to her hips and lower limbs, caused by the defendant forcefully spreading her legs open in order to rape her;[42]
3Internal damage to her vagina and anus;
4An impact on her psycho-social development;
5Depressive symptoms;
6Anxiety symptoms;
7Post-traumatic stress disorder (PTSD);
8Substance abuse;
9Eating Disorder;
10Agoraphobia; and
11Ongoing suicidal ideation.
[42] In both the SOL at [2.8] and her Fourth Affidavit at [6.1], the plaintiff refers also to having suffered a displaced pubic bone and damage to the femoral nerve in her right leg and hip as a result of such conduct.
The plaintiff claims that the ongoing effects of the abuse have ‘all but prevented me from maintaining any form of employment, having social relationships and starting a family’.[43] She claims that the abuse has impacted on most aspects of her life, with long term physical and emotional effects. She has struggled with various addictions to drugs, alcohol and food over the years, and claims to have made multiple suicide attempts.
[43] SOL at [7].
The plaintiff claims that because of the abuse, her ability to participate in her schooling was inhibited as she was frequently absent. She claims that secondary to the abuse, she developed behavioural issues and a fear of leaving the house, such that she left school at an early age, thus compromising her future employability.
She alleges to have had difficulty obtaining and maintaining employment, such that she has only ever worked on a part time basis and claims to have frequently left employment because of psychological injuries arising from the abuse, including agoraphobia, anxiety, social phobia and a borderline personality disorder.[44]
[44] SOL at [2.14].
The plaintiff has not worked in any paid capacity since August 2013. She claims that this is ‘as a result of my psychological injuries sustained as a result of years of sexual assault, abuse and rape committed by the defendant, my uncle and a third party.’[45]
[45] SOL at [4.9].
The plaintiff describes having a low sex drive and low libido and says she has never enjoyed sex because of the defendant’s actions. She has had difficulty in her personal relationships and views sex as ‘dirty’.[46]
[46] SOL at [6.2.38]-[6.2.39].
As a teenager, the plaintiff says she was significantly underweight. The plaintiff attributes this to the defendant deliberately poisoning her food so as to keep her skinny, being his physical preference, and to make her too weak to fight his advances. She claims she developed anorexia due to the defendant constantly verbally harassing her about her weight.[47]
[47] SOL at [6.2.20]-[6.2.23].
She describes attempting to make herself look masculine as a means of self-protection and of struggling with her sexual identity, such that at one stage she contemplated undertaking sex change surgery. She describes suffering a fear of males such that she now identifies as gay because of this.[48]
[48] SOL at [6.2.24]-[6.2.26].
The plaintiff describes suffering regular panic attacks, a fear of using the bathroom, and a propensity to freeze when confronted by aggressive men, meaning she has been the victim of further sexual assaults. She describes that her fear of men further sexually abusing her has prevented her from going into the workforce.[49] She is socially isolated because of the agoraphobia and her distrust of others.[50]
[49] SOL at [6.2.40].
[50] SOL at [6.2.42].
As to the physical injuries, in her first police statement, the plaintiff says the defendant abused her basically every day, and that initially he was never aggressive with her, ‘more empathetic than anything’ and would touch her in a caressing manner, as if he was trying to please her. She said:[51]
He was never aggressive with me, but he did used to hold my wrist extremely tight when I was trying to get away from him and push on the pressure point on my wrist to get me to comply.[52]
[51] Second Affidavit, Annexure MS-1.
[52] This is seemingly inconsistent with the plaintiff’s description of the first pleaded incident to police – as per the Second Affidavit, Annexure MS-2.
She says that on weeknights at least once per week, the defendant would come into her bedroom and put his hands up her nightie and try to insert his fingers into her vagina. She remembers being in a lot of pain from the abuse and of him constantly trying to penetrate her.
The plaintiff claims to have difficulty sitting for long periods of time, walking long distances and being on her feet for prolonged periods because of injuries to her hips and spine which she attributes both to her abuse by the defendant, and by her uncle.[53] She also claims to have been diagnosed with plantar fasciitis, a heel spur and a ganglion on a nerve on her foot, which she attributes to the years of abuse perpetuated upon her by both the defendant and her uncle.[54]
[53] SOL at [2.9].
[54] SOL at [6.2.11].
The plaintiff alleges that her wrist injuries prevent her from engaging in many activities of daily living including cooking, cleaning, gardening and washing.[55] She describes having scars on her wrists because of this and also says she has been diagnosed with Carpal Tunnel Syndrome in both wrists.[56]
[55] SOL at [2.12].
[56] SOL at [6.2.15].
The plaintiff says she has developed scar tissue in her vagina and anus because of the years of sexual abuse she endured, and has been advised by her doctors that she has a bent uterus.[57] She also describes a lump on her perineum which she believes was caused by the defendant and her uncle constantly rubbing the area between her vagina and anus.[58]
[57] SOL at [6.2.16].
[58] SOL at [6.2.17].
Although not pleaded, the plaintiff claims that the defendant refused to take her to seek treatment for various physical injuries she sustained as a child, to prevent the discovery of his abuse, thus contributing to her resulting disability.
Medical Evidence
Dr Warwick Blakemore
Dr Blakemore, Psychiatrist, has provided a report dated 22 May 2019 following his examination of the plaintiff on that date for medico-legal purposes.[59]
[59] SOL, Annexure MMS-1.
In addition to the history provided to him by the plaintiff, Dr Blakemore had regard to Judge Costello’s Sentencing Remarks and the First and Second Affidavits.
Dr Blakemore took a history from the plaintiff that she was sexually abused by the defendant from the age of about two or three and that the ‘major sexual abuse’ stopped when she was about ten and a half, when the defendant was imprisoned for offending against her friend. She said that following the defendant’s release from jail ‘she was suffering more mental abuse than major sexual abuse after that and she said she became agoraphobic, she did not escape the house until she was 23’.[60]
[60] Report of Dr Blakemore at p 2.
The plaintiff said that the defendant would threaten her, and told her that if she left the house she would be in physical danger. She described suffering panic attacks from the age of ten and of being panicky and agoraphobic for years.
The plaintiff explained that the defendant would force her onto his lap when he sexually abused her and that as a result she had suffered injuries to her right hip, which she described as being ‘flipped out of its socket’, resulting in chronic hip and right leg pain.[61] She also told Dr Blakemore about other physical injuries she attributed to the defendant’s abuse namely cysts on her ovaries, a polyp in her vagina and a bent pubic bone. She said that as a result of having her hands tied by her father and of constantly having her hands grabbed, she had arthritis in her right wrist in particular and carpal tunnel problems with both hands.
[61] Report of Dr Blakemore at p 6.
Dr Blakemore took a history from the plaintiff that her uncle also abused her when she was a child. She described her uncle penetrating her with his finger and making her suck his penis – being things the defendant had also made her do. She said her uncle had threatened her life if she said anything and told her that if she ever told anyone ‘she would be chopped up and buried’.[62] She described being terrified, with no family support. She said she was still frightened that her uncle would kill her as he was ‘so violent and mental’ and she continues to look over her shoulder wherever she is going as she is still so frightened of him.[63]
[62] Report of Dr Blakemore at p 3.
[63] Report of Dr Blakemore at p 8.
The plaintiff told Dr Blakemore she left school after going off the rails and first sought counselling for her agoraphobia at around that time. Talking about the abuse had however led to her being taken to Glenside Hospital one night, when she just could not cope anymore. She described running out onto the street with a knife, intending to cut her throat.
The plaintiff said she had finally built up the courage to leave the family home at the age of 23 with the assistance of her former boyfriend. She described just trying to survive since then, trying to get help and to obtain employment, although she said she had only ever been able to work part time because she seemed to get too exhausted and panicky.
She had been taking anti-depressant medication, Aropax, since the age of 27, which had the effect of calming her and was also taking Pariet and Lyrica and Sodium Volproate for pain. She said she also takes Olanzapine at the end of the day if she is feeling too anxious, which allows her lengthy uninterrupted sleep.
The plaintiff described struggling with alcoholism for a couple of years, resulting in her seeking some treatment in about 2014 through a mental health organisation, Summit Health. She said unfortunately her condition had worsened, such that she was detained at the Royal Adelaide Hospital after cutting herself, and required stitches at the Mr Barker Hospital. She said she had not drunk alcohol for about two years, but had been using marijuana at night to help her sleep and to help her cope with her physical pain.
In 2014, the plaintiff was diagnosed with cancer, being a tumour on her kidney, and she told Dr Blakemore that she had not worked since that diagnosis. She needed surgery to remove the tumour, preceded by gall bladder surgery, both of which were delayed because of her agoraphobia and an incident where she attempted to take her life, by driving into a tree.
After this surgery, she had moved to Nildottie but had then become suicidal, requiring admission to the Lyell McEwin Hospital.
The plaintiff told Dr Blakemore that in 2015 she was brutally raped at a party, which had resulted in a worsening of her psychological condition, causing her more frequent and more intense nightmares. Before that incident the plaintiff had struggled with gender dysphoria, being uncertain to whom she was sexually attracted, but had started to express her femininity more. The rape in 2015 had lessened her ability to do so, and since then she felt safer and more comfortable being more masculine.
The plaintiff told Dr Blakemore that since her cancer diagnosis and her more recent suicide attempts she had started to consult a psychologist, whom she now sees monthly. She also has two support workers through a Mental Health mentoring association. This has assisted the plaintiff’s mental health, as had her enrolment in a TAFE course in Women’s Studies and Foundation Skills about three months prior to the consultation with Dr Blakemore. The plaintiff said she planned to continue with her studies, with her intention being to do a Certificate III in Community Studies and then a Diploma in Female Advocacy, with a view to obtaining employment in that field.
I note that since the plaintiff was assessed by Dr Blakemore she has deferred her TAFE studies, as she claims she is unable to cope with the pressure and stress of both this action and her studies at this time. She hopes to resume her studies in the short to medium term.[64]
[64] Fourth Affidavit at [20].
Dr Blakemore also took a history from the plaintiff that for the previous six months she had been volunteering two days a week at St Vincent de Paul, although she noted that sometimes she was not well enough emotionally to attend.
Since the assessment with Dr Blakemore the plaintiff has ceased her volunteer work, both because of the stress of these proceedings exacerbating her psychological injuries and a fracture to her hand sustained in a fall, resulting in a need for both hospitalisation and surgery.[65] There are no documents in evidence relating to that subsequent injury.
[65] Fourth Affidavit at [21]-[22].
As to her physical symptoms, the plaintiff told Dr Blakemore that she was in constant pain in her hips, hands and back, and that she seemed to spend much of her time attending medical appointments with respect to her various conditions. Although she had stopped smoking for about 18 months, she had started smoking again with the stress of this action and the defendant’s criminal proceedings. She also described trouble with binge eating and an inability to lose weight because of the various medications she was taking.
The plaintiff continues to suffer daily panic attacks, has difficulty trusting others and remains frightened when going into buildings such as hospitals. She described having no sex drive and, at times, of expressing a wish to be taken in her sleep and not wake up, being something she said she would pray for when she was little.
Having regard to the plaintiff’s history and her current symptoms, Dr Blakemore diagnosed her as suffering chronic PTSD and a chronic major depressive disorder which he attributed primarily to the sexual abuse occasioned on the plaintiff by the defendant, which had caused her to be ‘seriously emotionally unwell’ and to a lesser degree by her uncle’s abuse, which had exacerbated her condition. As this abuse had occurred during the plaintiff’s formative years, it had seriously affected the development of her personality, meaning there were limits on how and if her condition would improve over time.
He believed the 2015 rape had added to these conditions and contributed significantly to the plaintiff’s sexual dysphoria.
Dr Blakemore considered the plaintiff was permanently incapacitated in her ability to properly form relationships, in her sex drive and in dealings with others. He thought she would likely remain permanently incapacitated to a degree for any work, such that she was only capable of working part time, because of her chronic depression. He noted that the plaintiff’s ability to compete in the open labour market was prejudiced in light of her ongoing psychiatric illness and remains compromised by the limited benefit she received from her schooling, which was impacted by the chronic psychiatric illness she suffered as a child as a result of the abuse.
He noted that although the plaintiff remained chronically unwell, her condition was improving and would likely improve more with the finalisation of this action. As such, he was unable to assess any degree of permanent incapacity in percentage terms. In this respect, Dr Blakemore recommended the plaintiff continue with her current treatment, namely monthly consultations with her psychologist, the cost of which was unknown, and an ongoing medication regime which he estimated had a ‘possible’ cost of $100.00/month.
Dr Ashley Ng
Dr Ng is a General Practitioner at the Woodville South Medical Centre.
There is no evidence as to whether he is the plaintiff’s usual general practitioner and if so, for how long he has been seeing the plaintiff in such capacity.
In his brief report dated 3 October 2019,[66] Dr Ng has expressed the opinion that it is ‘possible’ that ‘the previous sexual abuse, assault and rape’ have contributed to the plaintiff’s physical injuries, including injuries to her pubic bone, femoral nerve, hands, feet and internal injuries to her uterus and anus.
[66] Fourth Affidavit, Annexure MMS-1.
He has described the plaintiff’s renal carcinoma as being in remission, but requiring indefinite ongoing surveillance scans.
Mr Jason Gill
Mr Gill is a Clinical Psychologist. In a report dated 3 October 2019,[67] he has confirmed that he has seen the plaintiff on 46 occasions for individual psychological treatment covering a period from 3 December 2014 to 30 September 2019 (inclusive). Those sessions have occurred at approximate monthly intervals. This is consistent with the plaintiff’s history to Dr Blakemore that she had been receiving such treatment since her cancer diagnosis.
[67] Fourth Affidavit, Annexure MMS-2.
Mr Gill was unable to comment on the likely ongoing cost of the plaintiff’s medication, but considered she ‘might’ require ongoing fortnightly therapy sessions in order to deal with the trauma of her abuse (being abuse committed both by the defendant and the plaintiff’s uncle), for a period of between two to three years, at an estimated cost of between $10,140.00 and $15,210.00.
Schooling/Further Study
The plaintiff’s Curriculum Vitae records that she attended high school until Year 10 in 1990.[68]
[68] SOL, Annexure MMS-2.
In her Statement of Loss, the plaintiff says she was unable to complete school due to the abuse, her bad attitude and frequent absenteeism.[69]
[69] SOL at [6.2.35], noting the plaintiff also attributes the sexual abuse she claims she suffered by an uncle as being a cause.
In the second police statement, the plaintiff says she achieved ‘really good’ grades at school up until about Year 5, when the defendant was arrested for sexually assaulting her friend, MO. Thereafter the plaintiff says she felt abandoned by her school friends and family, and started acting up such that her behaviour became progressively more erratic. She told police she was expelled just prior to her 16th birthday, midway through Year 10, due to her bad behaviour and lack of participation.
There are no school reports in evidence which assist the court in terms of observations made by the plaintiff’s teachers with respect to the plaintiff during her formative years, or of her academic ability.
In addition, there is no evidence relating to the plaintiff’s siblings’ educational outcomes, which may provide some comparative assistance to the court, albeit the plaintiff’s brothers are not her biological brothers. There is no evidence as to the academic achievements of either the plaintiff’s biological parents or her adoptive mother.
There is some limited evidence before the court as to the defendant’s education and employment history. The defendant was apparently educated to Year 9 only, then left school, working in the wool industry, albeit in what capacity is unknown, until he retired.[70]
[70] Sentencing Remarks of Judge Costello at p 2.
As to further study, in addition to recently commencing, but deferring the TAFE studies as previously described, the plaintiff’s curriculum vitae records her further qualifications as:
·2010 Certificate II in Security Operations;
·2010 Certificate III in Security Operations; and
·2010 First Aid Certificate.
Employment History
There are no taxation returns in evidence, nor any employment records, or references.
In the Statement of Loss, the plaintiff says she secured brief employment as a trolley collector when she was aged 17, but she left after only one and a half days, when her boss put his arm around her and she suffered a panic attack. She claims to have been unemployed from the age of 17 until age 32 due to agoraphobia and anxiety, and says the only taxation return she lodged was in 2013. A copy of that taxation return is not in evidence.
By reference to the Statement of Loss and Curriculum Vitae, from 2008 until 2013, the plaintiff worked in a number of different occupations and for several different employers. Although each period of employment was brief, her employment between 2008 and 2013 was relatively continuous, namely:
·September 2008 – November 2009: Freight Handler, Hunter Operations;
·November 2009 – March 2010: Courier, APD Parcel Delivery;
·April 2010 – June 2011: Security/Crowd Controller, Duke of York and Botanic Hotels;
·February 2012 – February 2013: Cook, Millers Arms Hotel; and
·March 2013 – August 2013: Cook, Corner Takeaway.
The plaintiff has not engaged in paid employment since August 2013.
Findings as to Injuries, Loss and Damage
Physical Injuries
The plaintiff alleges to have sustained numerous physical injuries as a result of the defendant’s abuse, resulting in ongoing pain, discomfort and the need for treatment and investigation, and causing permanent disability.
However, the plaintiff has produced only the short report from Dr Ng to support this aspect of her claim.
Dr Ng was only able to express the opinion that it is ‘possible’ that that the plaintiff’s previous sexual abuse has contributed to injuries he described as being to her pubic bone and femoral nerve, hands, feet, uterus and anus. [71] He did not describe those physical injuries in any detail, nor outline whether they, or any other physical conditions or illnesses, have impacted or continue to impact on the plaintiff’s ability to work or to undertake the usual activities of daily living, and if so, in what way.
[71] Noting, he does not specify if this includes sexual abuse of the plaintiff by anyone other than the defendant.
Dr Ng has not commented on whether any physical injuries have resulted in any permanent disability to the plaintiff and if so the extent and impact of such disability, nor has he expressed an opinion as to what, if any, ongoing treatment is required with respect to these injuries, or the cost of the same.
As such, there is simply insufficient evidence for me to be satisfied on the balance of probabilities as to the nature of the physical injuries she suffers, whether and if so, to what extent, the defendant’s abuse has caused or contributed to those injuries and what is any resulting disability arising therefrom.
Psychiatric Injuries
The evidence of Dr Blakemore supports the plaintiff’s claim that she has suffered significant psychiatric injury as a consequence of the many years of abuse she endured at the hands of the defendant (and others).
I find, in accordance with the opinion of Dr Blakemore, that as a result of the plaintiff being sexually abused by the defendant on a regular basis when she was a child, the plaintiff has suffered the following injuries:
·Chronic PTSD;
·A chronic major depressive disorder; and
·Sexual Dysphoria.
I find that as a result, the plaintiff has suffered ongoing anxiety, which has manifested itself in such symptoms as a fear to leave the home, fear of certain public environments, general distrust of others (in particular, men), difficulties forming and maintaining personal relationships and social anxiety.
I find that the defendant has suffered nightmares, flashbacks and panic attacks because of the abuse, and has, at times, been suicidal.
I find that because of these injuries, and the ongoing mental trauma of the defendant’s abuse, the plaintiff has struggled with addictions to drugs, alcohol and cigarettes during her adult years, and has had difficulty maintaining a normal body weight – at times under-eating and at other times struggling to lose weight because of binge eating and medication side-effects.
However, Dr Blakemore expressed the opinion that the plaintiff’s injuries were contributed to by her uncle’s abuse and the rape in 2015. The plaintiff acknowledges this.
Further, as previously stated, the plaintiff attributes as a contributing factor to her psychiatric and psychological injuries, conduct by the defendant which is not compensable, namely the sexual harassment and deliberate malnourishment. In addition, she describes being impacted by her mother’s conduct (as a participant in the alleged deliberate poisoning of her and in the psychological trauma which caused her to be fearful when leaving the house) and the effect of her abuse by the schoolboys in the park as still fresh in her memory.
It is extremely difficult to estimate the contribution these other incidents have had on the development and progression of the plaintiff’s psychiatric illness. There are no medical records in evidence, nor any reports from a treating psychologist which detail changes in the plaintiff’s presentation over the years, or, for example, assist the court to better understand what may have prompted the various suicide attempts and psychiatric hospital admissions as described by the plaintiff.
The plaintiff describes significant and horrific abuse perpetuated upon her by her uncle during the same formative years of ages three to 12, and importantly described an ongoing fear of her uncle which continues to cause her to be on guard even to this day. While she describes her uncle’s abuse as being less frequent than that of the defendant – consistent with the more limited extent to which her uncle had the opportunity to abuse her compared to the defendant – this was serious abuse perpetuated by another adult male family member.
There appears to have been a worsening in the plaintiff’s emotional state since she was seen by Dr Blakemore, with her ceasing her studies and volunteer work. While the stress of this action may be a factor, the criminal prosecution of her uncle, is likely a significant contributing factor, given her fear of him.
Further, the 2015 rape was described by the plaintiff as a brutal rape. It seems to have caused a significant setback to the plaintiff, as the plaintiff has not returned to work since that attack – although this likely also relates to her cancer diagnosis.
A review of the plaintiff’s employment history suggests that there was a definite improvement in her ability to participate in employment during the period 2008 to 2013. This supports a finding that events since then (which I accept include the trauma associated with the defendant’s prosecution and this action, but must also include other non-compensable incidents, such as the cancer diagnosis, the 2015 rape and her uncle’s prosecution) have had a significant effect on the plaintiff’s psychological functioning.
In the absence of any other expert evidence dealing with the issue of causation, and the paucity of information relevant to the other abuse allegedly suffered by the plaintiff, I am satisfied on the balance of probabilities that the defendant’s abuse is the cause of the majority of the plaintiff’s psychiatric injuries and any resulting loss and damage. The abuse was of the most serious and abhorrent kind, committed at a crucial stage in the plaintiff’s young life, on a frequent basis and over a sustained period. The defendant is the only father the plaintiff has ever known, further compounding the effects of the abuse.
In her Statement of Loss, the plaintiff attributes 60% of her psychiatric illness and resulting loss and damage to the defendant’s abuse.
I consider this is a reasonable assessment.
Assessment of Damages
General Discussion/ Evidentiary Issues
The plaintiff’s damages are to be assessed in accordance with the common law, the action having arisen from the commission of an intentional tort, thus falling outside of the scope of s 52 of the Civil Liability Act 1936.
Given the nature and frequency of the abuse, it has necessarily shaped the adult the plaintiff has become. As the abuse started at such a young age, this is not a case where the plaintiff’s damages can be readily measured by reference to any change in earning capacity, or activities of daily living, as occurs in ordinary personal injury cases. The trajectory of the plaintiff’s life is otherwise unknown.
Further, the assessment is made more difficult by the potential impact of the plaintiff’s non-compensable physical injuries, other contributing factors to her psychological presentation and a general lack of relevant evidentiary material.
Pain and Suffering
The plaintiff seeks a substantial award of damages for pain and suffering to reflect the multiple instances of abuse occasioned on her by the defendant, which has left her unable to form or maintain meaningful relationships and has impaired her ability to cope with the normal vicissitudes of life.
It was submitted that general damages should be assessed consistent with the decision in Trevorrow v The State of South Australia (No.5),[72] wherein Gray J awarded a substantial sum by way of general damages to compensate the plaintiff for the loss and damage he suffered following his removal from his mother at a young age.
[72] [2007] SASC 285.
In my view, the circumstances of that case are such that it can be distinguished from the within matter.
Gray J expressly declined to award Mr Trevorrow damages for loss of earning capacity, instead including a ‘discretionary allowance’ for such loss in the award of general damages. Further, given the circumstances of that case, loss of cultural identity was a significant issue and at the forefront of the Judge’s mind in calculating general damages. As such, while aspects of the decision are informative, it is not, in my view, a useful comparator.
However, as previously stated, the sexual abuse, as pleaded, was of the most serious kind, involving countless acts of rape and sexual assault, all committed on a scared and vulnerable young girl, by her adoptive father. The abuse must have been frightening and physically painful for the plaintiff, in addition to resulting in long term psychiatric sequelae.
As the abuse occurred when the plaintiff was such a young age, and continued throughout her childhood, it has had life-long consequences for the plaintiff, affecting almost every aspect of her life.
I acknowledge that the plaintiff’s enjoyment of life has also been substantially affected by other matters including the alleged abuse by her uncle, the rape in 2015, the memory of the incident in the park involving the schoolboys, other illnesses and the physical injuries she has referred to in detail in her affidavits.
Having regard to all of those matters, I allow the sum of $70,000.00 for past pain and suffering and $30,000.00 for future pain and suffering, a total of $100,000.00.
Interest on Past Pain and Suffering
The plaintiff seeks an award of interest pursuant to s 30C of the Supreme Court Act 1935 and in accordance with the reasoning of Gray J in Trevorrow v The State of South Australia (No.6).[73]
[73] [2008] SASC 4.
The relevant provision in the District Court Act 1991 is s 39, which states:
39—Pre-judgment interest
(1) Unless good reason is shown to the contrary, the Court will, on the application of a party in whose favour a monetary judgment has been, or is to be, given include in the judgment an award of interest in accordance with this section.
(2) The interest—
(a)will be calculated at a rate fixed by the Court; and
(b)will be calculated in respect of a period fixed by the Court (which must, however, in the case of a judgment given on a liquidated claim, be the period running from when the liability to pay the amount of the claim fell due to the date of judgment unless the Court otherwise determines); and
(c)is, in accordance with the Court's determination, payable in respect of the whole or part of the amount for which judgment is given.
(3) The Court may, without proceeding to calculate interest under subsection (2), award a lump sum instead of interest.
(4) This section does not—
(a)authorise the award of interest on interest;
(b)authorise the award of interest on exemplary or punitive damages;
(c)affect damages for dishonour of a negotiable instrument;
(d)authorise the award of interest (except by consent) on a sum for which judgment is given by consent;
(e)limit or affect the operation of any other enactment or rule of law providing for the award of interest.
The wrongdoing occurred over a period from about August 1977 to August 1992.
The court has a broad discretion as to which interest is allowed, over what period and at what rate. Further, the court has a discretion to award a lump sum in lieu of interest.[74]
[74] Wheeler v Page (1982) 31 SASR 1 at 4.
In this instance, the plaintiff’s action was commenced many years after the conduct the subject of the action. There are many reasons why the victim of sexual abuse may choose to complain or take any action in relation to that abuse at a particular point in time, and not earlier.
The delay was in part likely due to amendments to statutory limitation periods with respect to criminal prosecutions arising from child sexual abuse and to the LAA, and in part due to a personal decision made by the plaintiff, relevant to the timing of the death of her mother.
In my view, given these circumstances, it is appropriate to award a lump sum in lieu of interest, to acknowledge that the plaintiff has been kept out of her money because of the delay, but to reflect the fact that the claim could have been brought many years earlier by the plaintiff, but was not.
I award a lump sum in lieu of awarding interest on damages for past pain and suffering, in the sum of $30,000.00.
Loss of Earning Capacity
As the abuse occurred when the plaintiff was a young child, there is no baseline to measure the impact the compensable injuries have had on the plaintiff’s earning capacity.
I accept that as a result of the abuse, the plaintiff’s ability to properly learn and emotionally mature was significantly impaired. Her schooling is likely to have been compromised, both in terms of her level of attendance and her ability to concentrate and focus on her studies. In addition, her difficulty in maintaining close friendships during the period, caused in part by the effects of her PTSD and depression, and the impact of the psychological trauma inflicted by the defendant, meant that she was deprived of both the academic and social aspects of her school years.
I find that the abuse, and its impact on the plaintiff’s behaviour and emotional well-being, was a significant contributing factor to the plaintiff leaving school during Year 10, and without any formal qualifications, thus impacting on her earning capacity.
Thereafter, the plaintiff has had very limited involvement in the workforce.
The plaintiff claims that both her physical injuries (non-compensable) and her psychological symptomology (in particular, her agoraphobia) has prevented her from engaging in meaningful long-term employment.
Further, she claims to have left various positions of employment as the psychological and physical injuries she suffered as a consequence of the abuse were aggravated during such employment.[75] In addition, she claims her fear of men sexually abusing, assaulting and raping her prevents her from going into the workforce[76] and that although both her physical and psychological injuries have caused her to be unable to maintain employment, her psychological injuries have been the dominant reason.[77]
[75] SOL at [4.3]-[4.8].
[76] SOL at [6.2.40].
[77] SOL at [3.4]-[3.5].
The plaintiff claims that she has only been employed for 47 months (188 weeks) of her life.[78] She submits that in the absence of the abuse by both the defendant and her uncle she would have expected to have commenced full time employment at the age of 18, earning the equivalent of state average net weekly earnings.
[78] SOL at [5.2].
In her Statement of Loss, the plaintiff says she had the potential to earn $1,242,317.00 (net) during the period 1992 to 2019. In calculating a claim for damages for past loss of earning capacity, the plaintiff has deducted from this sum, a sum of $166,825.56, apparently calculated by reference to state net average weekly earnings for the period of 188 weeks during which the plaintiff has maintained employment.
This produces a sum of $1,075,491.44.
The plaintiff claims damages representing 60% of this sum, to reflect the contribution she says the defendant’s abuse has had on the development of her psychiatric illness and therefore loss of earning capacity. This results in a claim for the sum of $645,294.80.
I have not been provided with a guide as to precisely how the average net weekly earnings figures in the schedule[79] relied upon by the plaintiff have been calculated, noting the two volumes of ABS statistics provided as to state weekly earnings all relate to gross weekly earnings.
[79] SOL at [5.6].
In addition, there are some anomalies in the schedule prepared by the plaintiff’s solicitors which accompanied the volumes of ABS statistics. For example, that schedule refers to Male Earnings as at May 2019 in the sum of $1,528.00 and female earnings in the sum of $1,597.30. In fact, Average Earnings for Full Time adult males (total earnings) in May 2019 were $1,597.30 (gross) and for equivalent adult females were $1,406.00 (gross). Applying relevant taxation rates to either of those figures does not produce a sum of $61,103.00 for average net weekly earnings, being the sum referred to in the plaintiff’s schedule.[80]
[80] SOL at [5.6].
Further, there is no evidence before the court as to the plaintiff’s actual earnings from employment at any time in her life. To attempt to simplify the assessment by estimating what those earnings were, by reference to an estimated average net weekly sum of $887.37, is an artificial exercise.
There are a number of other difficulties with this approach.
The plaintiff claims to have suffered from numerous physical injuries – both related and unrelated to the defendant’s abuse – throughout her life.
She describes difficulties with walking and prolonged sitting or standing relating to her right leg, right hip and foot injuries. She claims to have carpal tunnel syndrome in both wrists. These non-compensable physical injuries must have had an impact on the plaintiff’s earning capacity. Measuring that impact is impossible in the absence of any medical evidence outlining the nature and extent of those injuries.
Similarly, the plaintiff has not worked since she was diagnosed with renal cancer in about 2014. The psychological impact of that diagnosis together with the need for treatment and surgery must have contributed to any loss of earning capacity since that diagnosis. Again, there is simply insufficient evidence to properly assess what has been the impact on the plaintiff of that diagnosis and illness, albeit the cancer is now in remission.
More recently the plaintiff fell and fractured her hand, requiring surgery. This injury has prevented the plaintiff from continuing her volunteer work and as such it is likely that it has also impaired her earning capacity. Again, there is a lack of evidence relevant to this injury and its effect on the plaintiff.
Further, the plaintiff remains involved in the ongoing criminal prosecution of her uncle, which, by reference to the Fourth Affidavit, is resulting in considerable emotional strain on the plaintiff, as she has been necessarily required to revisit painful memories related to that alleged abuse and he is a man she fears.
Finally, I note the plaintiff’s claims with respect to harassment and malnourishment which, although ancillary to the abuse, do not sound in damages because of the manner in which the claim has been pleaded. The impact of these matters on the plaintiff’s earning capacity must also be considered when assessing what is the plaintiff’s loss.
The plaintiff was not cross-examined. On its face, the plaintiff’s decision to undertake further training to become a security officer and to seek employment in such a role at licenced premises (the Duke of York and Botanic Hotels) seems at odds with and inconsistent with her claimed fear of aggressive men and social anxiety. However, the plaintiff may have a reasonable explanation as to why she decided to undertake such study and employment, reconcilable with her other evidence.
I mention all of these issues as they impact on the court’s ability to assess the loss of earning capacity caused by the defendant’s abuse and resulting psychiatric injury to the plaintiff.
As the High Court observed in Medlin v SGIC[81] and Husher v Husher,[82] damages are awarded for loss of earning capacity if a plaintiff establishes that their earning capacity has been diminished by reason of the compensable incident and that such diminution is or may be productive of financial loss.
[81] (1995) 182 CLR 1, 4.
[82] (1999) 197 CLR 138, 147.
The plaintiff submitted that the remarks of Gray J in Trevorrow v The State of South Australia (No.5) were applicable namely: [83]
Calculations of future economic loss normally require the identification of the specific earing capacity impaired and the financial consequences of that impairment. However, circumstances may arise where the evidence does not allow this process to be undertaken. However, if there is a real diminution in earning capacity which it can be inferred has or will cause economic loss, the plaintiff should be compensated for the loss despite difficulty in precise quantification. Providing there is a prospect of there being such a loss, it is necessary for the court to make an assessment of the probability and to make an award. Once it is clear that the plaintiff has suffered some real loss, the court must do its best to make an assessment of that loss, notwithstanding the lack of evidence. A discretionary judgment must be made. These principles allow a loss of earning capacity to be assessed in a non-specific way.
[83] [2007] SASC 285 at [1187].
I am satisfied that the psychiatric injuries suffered by the plaintiff as a result of defendant’s abuse have significantly impacted on the plaintiff’s earning capacity.
I accept that the defendant’s abuse was a substantial contributing factor in the plaintiff leaving school during Year 10, and that as a result of the abuse, including the psychological trauma referred to in paragraphs 39–45 herein, the plaintiff is likely to have experienced a high level of absenteeism when at school. I accept that the life-long problems the plaintiff has experienced in terms of anxiety, depression and agoraphobia, and her difficulties trusting and forming relationships with others, has made it difficult for her to obtain and maintain employment.
I am mindful of the contribution of other matters to the plaintiff’s reduced earning capacity as outlined above.
I also note that for a period from 2008 to 2013 the plaintiff was able to work in several different occupations, and while in each instance her period of employment was relatively brief, her employment was mostly continuous during that period. This suggests that there has been, over time, periods when the plaintiff is able to function in the work force, and that she does have some transferrable skills that she can continue to utilise in paid work. It also supports a finding that the combined effect of the cancer diagnosis, the impact of the 2015 rape and the stress of involvement in criminal proceedings – both with respect to the defendant and her uncle – have had a significant role to play in the plaintiff’s continued absence from the work force.
Doing the best I can on the very limited information available, and applying the reasoning of Gray J in Trevorrow v The State of South Australia (No.5),[84] I assess the plaintiff’s damages for past loss of earning capacity in the sum of $300,000.00.
[84] [2007] SASC 285 at [1187].
This sum is calculated on a necessarily broad-axe basis. It has been informed by a consideration of the plaintiff’s net earnings, had she remained in continuous employment, earning an average weekly income from 1992 to 2019, but reduced significantly for the likely contribution other non-compensable injuries and illnesses have had on the plaintiff’s earning capacity.
As to the future, Dr Blakemore acknowledged that over time there may be some improvement in the plaintiff’s condition. Nevertheless, I accept that the plaintiff will remain substantially restricted in her ability to engage in remunerative employment because of the long-term effects of the defendant’s abuse, as outlined by Dr Blakemore.
Given the limited evidence, the assessment of the plaintiff’s claim for damages for future loss of earning capacity must also necessarily proceed on a discretionary and broad axe basis, being mindful of matters unrelated to the defendant’s pleaded abuse, which impact on the plaintiff’s ongoing earning capacity.
I award the plaintiff a sum of $100,000.00 for damages for future loss of earning capacity.
Superannuation
The plaintiff is also entitled to damages to reflect her loss of superannuation benefits, noting she would have been paid superannuation pursuant to the Superannuation Guarantee Charge Act 1992 and the Superannuation Guarantee (Administration) Act 1992, at a rate of between 9-9.5 % of gross wages.
In accordance with the practice adopted by this and other courts, I award the plaintiff a sum calculated by reference to 11 % of the plaintiff’s net past loss of earnings ($300,000.00), namely $33,000.00.
In addition, I assess damages for future loss of superannuation in the sum of $11,000.00, being 11 % of the award made for future loss of earning capacity.
Past and Future Medical Expenses
The plaintiff pleads that as a result of the defendant’s abuse she has required and will continue to require medical assistance and the cost of medication.
The Outline of Argument does not refer to a claim for past medical expenses. However, by reference to the Fifth Affidavit, the claim seems to be confined to reimbursement of out of pocket medical expenses for medication.
The plaintiff also seeks an award of damages for future medical treatment comprising the cost of ongoing treatment with a psychologist and the cost of ongoing medication.
The plaintiff has not provided a Schedule of Special Damages nor copies of any invoices in support of the claim for past medical expenses. The only documentation provided in support of that claim is that set forth in the Fifth Affidavit. In that affidavit, the plaintiff states that her sessions with Mr Gill have been funded by Medicare under a Mental Health Plan and she has not been required to make any ‘gap payment’ to date.[85]
[85] Fifth Affidavit at [5] and [7].
The plaintiff also states that she was prescribed an anti-depressant, Aropax (also known as Paroxetine), by her general practitioner Dr Millington in about 1996, as a result of psychological injuries caused by both the defendant’s abuse and the alleged abuse perpetrated by her uncle. One script is said to last one month, with the cost being $5.50 per month. There are no reports from Dr Millington nor any records pertaining to the plaintiff’s treatment by Dr Millington in evidence.
The plaintiff also says she was prescribed Lyrica and Sodium Volprate in about 2017 by Dr Senthil Govindasa. Again, there are no reports or records relating to Dr Govindasa in evidence. The plaintiff describes this medication as being prescribed to assist her to cope with the pain arising from her physical injuries. She says that both scripts last for one month, at a cost of $5.50 per script.
The plaintiff does not have any record of the expenses she has incurred for medication prior to 15 June 2016. She has produced a printout of expenses incurred by her with the Kidman Park Pharmacy for prescription medication from 15 June 2016 to 17 June 2019.[86]
[86] Fifth Affidavit, Annexure MMS-1.
There are numerous references throughout that printout to the prescription of Lyrica and Sodium Volprate. However, having regard to my previous findings with respect to the plaintiff’s claimed physical injuries, no allowance can be made for the cost of medication to treat the plaintiff’s physical injuries.
The printout also contains a record of the prescription of Paroxetine and Paxtine (20 mg, blister, 90 tablets) to the plaintiff. I am satisfied that these drugs are one and the same having regard to their description on the printout and their identical ‘NHS’ reference, in each case being ‘2242B’. These prescriptions were made on an almost monthly basis between 15 June 2016 and 24 January 2019, initially at a cost of $5.20, with that cost increasing each year to its present level of $5.50. The total cost incurred by the plaintiff for that medication during that period was $156.40.
There is no record of any further prescription of either Paroxetine or Paxtine to the plaintiff after 24 January 2019, with the only entry on the printout after that date being on 7 June 2019 when ‘Pregabalin’ was prescribed. The Fifth Affidavit does not contain any explanation for this, nor does it outline any other pharmacies the plaintiff may have attended to fill her various prescriptions.
Having regard to the evidence provided, I allow the sum of $93.84 for past medical expenses, being 60% of $156.40.
As to future costs, the plaintiff has estimated her ongoing medication costs at approximately $3.80 per week ($16.50/month). Using the multiplier for life (said to be 921),[87] the plaintiff has estimated a claim for future medication costs in the sum of $3,499.80.[88]
[87] The source for this multiplier was not identified.
[88] Fifth Affidavit at [17], noting neither the source nor the discount rate for the multiplier used is stated.
I accept that the plaintiff will require ongoing medication to assist to treat her anxiety, to stabilise her mood and to assist with her sleep.
The evidence provided confirms the plaintiff spent $156.40 on such medication in the three-year period between June 2016 and June 2019, being, on average, $1.00/week.
Dr Blakemore recommended the plaintiff continue with her current treatment which comprises approximately monthly, rather than fortnightly, sessions with her psychologist.
Mr Gill suggested that the plaintiff ‘might’ need fortnightly psychological counselling over the next two to three years at a cost of between $10,140.00 to $15,210.00, namely $5,070.00 per year. This equates to a cost of $195.00/session.
I am uncertain why Mr Gill considered treatment would only be necessary for the next two to three years. This may equate to the likely timeframe of the progression of the criminal proceedings involving the plaintiff’s uncle.
Having regard to Dr Blakemore’s report, I find that the plaintiff will have a life-long need for psychological therapy because of the defendant’s abuse.
I consider it appropriate to assess the plaintiff’s future therapy costs by allowing, as a starting point, the cost of one psychological therapy session per month. Based on Mr Gill’s report, I accept that the cost of such a session is in the order of $195.00, equating to a weekly loss of $45.00.
I assess the plaintiff’s ongoing treatment costs (both medication and therapy) for the psychological injuries caused by the defendant’ abuse in the sum of $27.60/week (60% of $46.00).[89]
[89] $1.00/week for medication + $45.00/week for therapy = $46.00/week.
There is no actuarial evidence as to the present value of such a loss. Although the tables set forth in the Fourth Edition of Assessment of Damages for Personal Injury and Death, Harold Luntz, are now dated, they are regularly utilised by this court. As this is a common law assessment, I consider the appropriate table is Table 4A, which measures the present value of a regular loss to a female for life. As per that table, the appropriate multiplier for a female aged 45 for life is 1161.5, resulting in a loss with a present value of $32,057.40.
However, I consider this sum should be reduced for the normal vicissitudes of life, the likelihood that the plaintiff’s attendance at such sessions will fluctuate, and the very real possibility that some therapy costs may be met by Medicare.
I allow the sum of $20,000.00 for future medical expenses.
Interest on Past Pecuniary Losses
In addition to the awards already made, the plaintiff is entitled to interest on the awards of damages for past loss of earning capacity, past medical expenses and past superannuation loss.
I note my earlier observations as to the delay in bringing these proceedings. Ordinarily, I would calculate interest on the awards of damages for past loss of earning capacity and past superannuation loss at a rate of 6.5 % per annum, for the entire period of the loss, but reduced to reflect the fact that the loss was incurred over time.
Having regard to the particular circumstances of this action, I consider it appropriate to award a lump sum in lieu of interest on past pecuniary losses.
I fix a sum of $100,000.00.
Future Commercial Services
The plaintiff pleads that she ‘will require commercial assistance in the future’.[90]
[90] SOC at [70.f].
I assume that by this pleading the plaintiff is referring to a need for future services from commercial providers.
No specific claim is made for such damages in the Outline of Argument, nor have any particulars nor evidence been provided as to what services are required, why and at what cost.
As previously stated, the plaintiff has several unrelated and/or non-compensable physical injuries which may be the cause of any need for paid domestic, handyman or other commercial services.
In the circumstances, I decline to make an award of damages for the cost of future commercial services.
Exemplary and Aggravated Damages
The plaintiff claims both aggravated and exemplary damages.
It was submitted that the plaintiff was seemingly adopted by the defendant for the sole purpose of his sexual gratification. His conduct was conscious, wilful and deliberate and made worse by the threats he made to the plaintiff, the tactics he used to psychologically manipulate her such that she was too afraid to leave the house, and his failure to seek medical treatment for her.[91]
[91] Noting this latter aspect was not pleaded.
A distinction is drawn between aggravated and exemplary damages at common law. Both may be awarded where a defendant has acted, either in committing a tort or thereafter, with contumelious disregard of the plaintiff’s rights, in an insulting or high-handed way, or with malice.
Aggravated damages are awarded to compensate a plaintiff for increased mental suffering due to the manner in which the defendant behaved in committing the wrong or thereafter. [92]
[92] Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 149.
As such, the court’s focus is on the plaintiff. Care must be taken to ensure that the plaintiff is not over-compensated having regard to the assessment of damages for non-economic loss (pain and suffering) which necessarily has as its focus the personal impact of the wrongdoing on the plaintiff, including mental harm. [93]
[93] State of New South Wales v Riley (2003) 57 NSWLR 496 at [83], [121].
In my assessment of damages for pain and suffering I have acknowledged the significant mental stress suffered by the plaintiff arising from the defendant’s wrong-doing. However, the defendant was the plaintiff’s adoptive father, with whom the plaintiff should have felt safe and cared for. The assaults were, at times, committed while the plaintiff was restrained and completely helpless and vulnerable. The defendant threatened the plaintiff with violence in the event she ever disclosed his offending. He later subjected her to the psychological trauma.
As such, I am satisfied that the manner and circumstances of the defendant’s conduct have significantly increased the plaintiff’s mental suffering, such that an award of aggravated damages is warranted. I award a sum of $50,000.00 for aggravated damages.
Exemplary damages are intended to punish the wrong-doer, in order to serve the objects of punishment, moral retribution and deterrence, such that the focus is on the conduct of the defendant.
Generally speaking, an award of exemplary damages will be justified where there is conscious wrongdoing in contumelious disregard of another’s rights,[94] however the award is not confined to contumelious conduct.[95] The defendant’s conduct must be of such a character that it merits punishment, so that it must have been knowingly wanton, fraudulent, malicious, violent, cruel, insolent, high-handed or an abuse of power.[96] The conduct must be such that an award of compensatory damages does not sufficiently express the court’s disapproval.[97]
[94] Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71, 77 (Knox CJ).
[95] State of New South Wales v Riley (2003) 57 NSWLR 496, 530 [138] (Hodgson JA).
[96] See State of New South Wales v Delly (2007) 70 NSWLR 125, 143 [88]; Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118, 122 (McTiernan J); Fontin v Katapodis (1962) 108 CLR 177, 187.
[97] State of New South Wales v Riley (2003) 57 NSWLR 496, 530 [138].
Further, exemplary damages may also be awarded for the purpose of deterring the wrongdoer and others who may be in his or her position from a repetition of the kind of conduct under scrutiny.[98]
[98] State of New South Wales v Delly (2007) 70 NSWLR 125, 149 [116].
However, in cases where a defendant has already suffered ‘substantial punishment’ in criminal proceedings for essentially the same conduct, the High Court has determined that an award of exemplary damages may not be made.
In Gray v Motor Accident Commission, the majority of the High Court observed:[99]
Where, as here, the criminal law has been brought to bear upon the wrongdoer and substantial punishment inflicted, we consider that exemplary damages may not be awarded. We say “may not” because we consider that the infliction of substantial punishment for what is substantially the same conduct as the conduct which is the subject of the civil proceeding is a bar to the award; the decision is not one that is reached as a matter of discretion dependent upon the facts and circumstances in each particular case.
There are at least two reasons in principle why this is so.
First, the purposes for the awarding of exemplary damages have been wholly met if substantial punishment is exacted by the criminal law. The offender is punished; others are deterred. There is, then, no occasion for their award.
Secondly, considerations of double punishment would otherwise arise. In R v Hoar, Gibbs CJ, Mason, Aickin and Brennan JJ said that there is “a practice, if not a rule of law, that a person should not be twice punished for what is substantially the same act”. That practice or rule would be breached by an award of exemplary damages in the circumstances described. (citations omitted)
[99] (1998) 196 CLR 1 at [40]-[43].
This then raises two issues; was the conduct for which the defendant punished by the criminal law substantially the same conduct for which the plaintiff claims an entitlement to exemplary damages and if so, was the punishment he received ‘substantial punishment’.
I note my previous comments at paragraphs 50-51 herein with respect to the manner in which the claim has been pleaded and the factual basis upon which the assessment of damages is to proceed.
I do not know the precise factual basis for the defendant’s plea of guilty. The penalty imposed by the Sentencing Judge was a substantial penalty in line with the reasoning in R v D.[100]
[100] (1997) 69 SASR 413.
In all of the circumstances, I decline to award exemplary damages, in line with the High Court’s reasoning in Gray v Motor Accident Commission.[101]
[101] (1998) 196 CLR 1 at [40]-[43].
Summary of Damages
I award the plaintiff damages in the sum of $744,093.84 comprising:
Past Pain and Suffering $70,000.00 Future Pain and Suffering $30,000.00 Lump sum in lieu of interest on past pain and suffering $30,000.00 Past Loss of Earning Capacity $300,000.00 Past Superannuation Loss $33,000.00 Future Loss of Earning Capacity $100,000.00 Future Superannuation Loss $11,000.00 Past Medical Expenses $93.84 Future Medical Expenses $20,000.00 Future Commercial Services Nil Lump sum in lieu of interest on past pecuniary losses $100,000.00 Aggravated Damages $50,000.00 Exemplary Damages Nil Total $744,093.84
Orders
Judgment for the plaintiff against the defendant in the sum of $744,093.84.
I will hear the parties further as to the question of costs.
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