SAB v PMC
[2013] WADC 1
•17 JANUARY 2013
| JURISDICTION | : | DISTRICT COURT OF WESTERN AUSTRALIA IN CIVIL |
| LOCATION | : GERALDTON | ||
| CITATION |
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| CORAM | : GOETZE DCJ | ||
| HEARD |
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| DELIVERED |
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| FILE NO/S |
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| BETWEEN | : SAB |
Plaintiff
AND
PMC
Defendant
Catchwords:
Claim for damages for assault and battery - Assessment of damages - Turns on own facts
Legislation:
Civil Liability Act 2002
Evidence Act 1906
Result:
Judgment for the plaintiff in the sum of $86,165.40
[2013] WADC 1
Representation:
Counsel:
| Plaintiff | : | Mr A A Nolan |
| Defendant | : | Mr D L Armstrong |
Solicitors:
| Plaintiff | : | Trewin Norman & Co |
| Defendant | : | Altorfer & Stow |
Case(s) referred to in judgment(s):
AM v KB [2007] VSC 429
Bennett v Minister for Community Welfare (1992) 176 CLR 408
BGC Residential Pty Ltd v Fairwater Pty Ltd [2012] WASCA 268
Briginshaw v Briginshaw (1938) 60 CLR 336
Browne v Dunn (1893) 6 R 67 (HL)
Chappel v Hart (1998) 195 CLR 232
Jones v Dunkel (1959) 101 CLR 298
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Medlin v State Government Insurance Commission (1995) 182 CLR 1
[2013] WADC 1
GOETZE DCJ
GOETZE DCJ:
Introduction
1 The plaintiff, SAB, has pleaded that on 10 May 2007 in the course of
her employment with a government utility in regional Western Australia, she suffered an assault and battery from one of her immediate supervisors, PMC.
The alleged assault and battery is of a sexual nature.
3 SAB has also pleaded that as a consequence of the alleged assault
and battery, she suffered from some immediate short term bodily pain and a longer term psychiatric illness, the latter of which has affected her day-to-day living and employment and will continue to do so into the future. She claims to have suffered loss and damage.
The claim is brought at common law.
5 The Civil Liability Act 2002 does not apply by reason that the alleged assault and battery was either or both an unlawful intentional act done with an intention to cause personal injury and it is an intentional act the doing of which is a sexual offence as defined in the Evidence Act 1906, s 36A or sexual conduct that is otherwise unlawful: Civil Liability Act s 3A, Table 1, Items 1(a) and (b).
SAB did not make any claim for workers' compensation and so the legislation applicable to such claims has no application in this matter.
PMC has denied any sexual contact with SAB.
8 This action therefore requires determination of whether SAB has
proved that the alleged assault and battery occurred. If so, then an
assessment of her injuries, loss and damage is required.
The standard of proof
9 This is a civil claim for damages. SAB must therefore prove that it is
more likely than not that the alleged sexual assault and battery occurred. It is a serious allegation. Therefore, regard must be had to the dicta of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336, 361 that:
…at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a
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GOETZE DCJ
state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency. … This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained.
10 It is also necessary to remember that the alleged assault and battery is
said to have occurred some five and a half years ago. However, the alleged event was immediately advised to PMC. He then instructed a solicitor to act on his behalf and declined to be interviewed by his work superiors or the police about the alleged event. That, of course, was his right and no inference adverse to him can be drawn by reason of him exercising that right.
11 It has not been suggested by PMC's counsel that he has suffered any
forensic disadvantage by reason of this claim not coming on for trial until recently. PMC and other witnesses did however suffer the disadvantage of passing time when trying to recall events from the day in question and allowance should be made for this.
12 It is appropriate that the delay from the alleged event to trial be kept
in mind, especially when coming to assess the evidence of SAB in terms of it being truthful, accurate and reliable before acting upon it and also when considering evidence from any witness based purely on memory from events occurring years before trial.
SAB's evidence must be scrutinised with great care.
| SAB |
14 SAB was born on 3 October 1986 in regional Western Australia.
She grew up in the same town as that in which she was born.
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She completed year 12 high school and then obtained some trade certificates from TAFE.
15 In 2006, SAB entered into an arrangement with a government body
to find her a traineeship. This was arranged with a government utility in her home town. Initially, the traineeship was for one year. It was then extended for a second year. There was no guarantee of employment after successful completion of the second year.
The government utility operated from a depot in town and it also had many remote sites at which work was required.
17 At the time of the alleged assault and battery in May 2007, SAB was
in the second year of her traineeship. She was then 20 years old and living in a domestic relationship with another woman who had two children from a previous relationship. A third lady also shared accommodation with SAB and her partner.
| PMC | |
| 18 | PMC was born on 5 March 1949. He has lived and worked all his |
| life in the same regional town of Western Australia as that in which SAB was born. |
PMC has been married for 42 years and has two adult children.
20 In 1972, PMC began working in a government utility where he
remained for the rest of his working life. He started in labouring work. He rose through the ranks and in approximately 1997, he was made a supervisor, which position of seniority he held until 2007 when he was then 58 years old. By then, SAB had been working for about one year at the same government utility and PMC was one of her supervisors.
PMC did not return to his work after the alleged assault and battery.
Background
22 The evidence of SAB was that she got on well with PMC. In her
first year at the utility, she and PMC had a normal relationship. However, after approximately one year of her traineeship and for a few months prior to the alleged assault and battery, PMC began talking to her about her lifestyle and became closer to her. He discussed sexual partnership problems, which were mainly his problems. He asked about her lesbian relationship. They had numerous conversations about their sex lives. This was unwelcome from SAB's point of view, but in cross-examination
[2013] WADC 1
GOETZE DCJ
she conceded that she confided in him in some manner when privately talking about intimate matters. She did not enjoy it and would not go into detail with him. She told him as little as she could so as to change the conversation.
23 PMC denied that he ever spoke to SAB about his marriage. He did
not have any problem with her sexuality. He did not want to know about
her relationship.24 PMC denied any sexual conversations when driving between jobs
with SAB. Conversations would be work related. He said that he worked with her in a professional manner. Theirs was mostly a professional relationship.
25 In cross-examination, SAB confirmed that her police statement,
made shortly after midnight on 12 May 2007, revealed that she and PMC discussed pornography on 8 May 2007 whilst driving to a work site. SAB said in evidence that on the following day, she brought him some pornographic DVDs, the titles of which she was not able to recall. She did this, she said, because she was sick and tired of him always saying that his wife never gave him sex. SAB put these DVDs into PMC's working bag and sent him a text message advising that she had done so.
SAB said that she told the police about the DVDs, but they are not referred to in her police statement.
27 SAB's partner, KJT, gave evidence that she and SAB discussed
certain matters two days before the alleged assault and battery as a result of which SAB told KJT that she would deliver pornographic DVDs for PMC to view.
28 PMC agreed that he did drive SAB to a work site away from the
depot on 8 May 2007, but he denied talking to her about pornography during the journey. He knew nothing about any pornographic DVDs. He has never seen a pornographic movie. He does not have a DVD or video player.
PMC had a work mobile telephone provided by his employer.
30 PMC said that, in May 2007, he did not know how to send or receive
a text message on his mobile telephone and that he had not read a text
message from SAB about any DVDs being put into his bag.
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31 Further, in cross-examination, SAB's evidence was that PMC had
'offered himself up' to be a man for her if she wanted to have sex with a man. She replied that she would 'let [him] know'. PMC denied making this offer.
32 SAB also gave evidence in cross-examination that her police
statement revealed that on one occasion PMC overheard SAB talking on the telephone to her partner about 'a threesome' with her partner and a male person. She said that he wished her 'good luck' with that and that 'you should get a bit whenever you can'.
33 SAB's partner did not recall such a telephone conversation, but she
did say that a threesome had been discussed with SAB because she, the
partner, had had a history with males.
PMC denied that he overheard such a conversation and that he had wished SAB luck.
35 PMC agreed in cross-examination that he was supportive of SAB and
the other trainees at the depot and offered her a shoulder to cry on, but he
said, no more than he did with the other trainees at the depot.
PMC believed that SAB would have made a good worker and that is why he persevered with her and tried to make her succeed.
The alleged assault and battery
It is common ground between the parties, that, on 10 May 2007, SAB and PMC were both involved in a training session at the depot of the government utility for which they both worked.
38 SAB's evidence was that the training session concluded at
approximately 2.30 pm after which she, together with another utility worker, GBC, went to a site remote from the depot to undertake work thereat. She arrived there close to 3.00 pm. There were other workers at this other site, namely JW, TB, AB and another worker only identified as S, who was an electrician.
39 SAB's evidence was that PMC arrived at this other work site shortly
before work finished that day at around 5.00 – 5.30 pm. She did not know the reason why he attended. She had planned to be taken back to the depot by GBC after this work was completed, but PMC said that he would take her as he had to go back to the depot 'to do something'. She had to go with him because 'he's my boss. I've got to do what he tells me to do'.
[2013] WADC 1
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Together, SAB and PMC left the remote site to return to the depot at around 'quarter to six' pm.
40 The evidence of SAB was that when she and PMC arrived at the
front gate of the depot, she got out of the vehicle to unlock that gate. However, PMC called her back into his motor vehicle and asked her to go for a drive to talk some more. Her evidence was that he said he was not comfortable sitting in his utility at the front gate in case one of his superiors or some workers saw them there. SAB thought this was strange, but it was easier for him to take her elsewhere and so she got back into the vehicle. She did not know what he wanted to talk about. She thought it would be a normal conversation about life in general.
41 SAB said that PMC then drove her to a nearby secluded spot in
bushland near a pipeline which he said wanted to check. He then allegedly committed the alleged assault and battery in his motor vehicle, the details of which are set out below at [212] – [220].
42 The evidence of SAB was that during the alleged assault and battery,
an incoming text message was received on PMC's mobile telephone from EJB, who was PMC's supervisor. This interrupted the alleged assault and battery.
43 In evidence, SAB said that PMC read that text message and then
showed it to her. SAB said the text message concerned a joke about 'niggers, cotton wool and drugs'. SAB alleged that the assault and battery continued after receipt of the text message.
44 SAB said that after the alleged assault and battery, PMC drove her
back to the depot where she opened the depot gate. PMC drove through it and drove her to her car and said 'this is our little secret. No-one else need know'.
SAB said she then drove off in her own car, heading home and PMC did likewise, after locking the gate behind him.
46 SAB agreed in cross-examination that later that evening, she
received a telephone call from PMC who checked if she was 'ok' and he
also said that he could not thank her enough, or words to that effect.47 The telephone records show that this call was made at 7.50 pm.
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48 After SAB returned home, her partner, KJT, sent a text message to
PMC objecting to his conduct in the alleged assault and battery upon SAB earlier that day.
49 GBC gave evidence, on behalf of SAB, saying that SAB arrived at
the remote site with PMC, who then left and later he returned with AB.
PMC left again and returned on a third occasion with S, the electrician.50 GBC's evidence was that PMC last arrived at the remote site at about
the time work was finishing at approximately 4.30 pm. Other workers, being TB, JW and AB then left this site. GBC said that SAB and PMC left the remote site together. Only he and S then remained.
51 GBC gave evidence that his work at the remote site concluded at
'roughly 6 o'clock'. He then drove home. As he did so, he necessarily drove past the depot, he said, at 'about 10 to 6' pm. He then saw PMC's Holden Rodeo utility at the main gate of the depot, which was some distance away.
52 GBC could identify PMC's utility at the gate because it was the only
such work vehicle with a silver 'roo' bar. He also said that PMC's vehicle
did not have toolboxes on the back.
GBC thought that the front gate was closed. The gate had to be manually opened and closed.
54 Although GBC said that he saw PMC's stationary Holden Rodeo at
the front gate of the depot, he did not see either SAB or PMC out of that vehicle, but he assumed PMC and SAB were at the main gate. The vehicle was simply stationary at the gate. GBC could not perhaps have been expected to be able to see who, if anyone, was sitting inside that vehicle because he was too far away. However, he also drove past SAB's vehicle in the staff car park and was close enough to see that nobody was in it.
55 GBC could not remember the lighting conditions at the time when he
drove past the depot, but he said that 'it was 6 o'clock at night. It would
probably be pretty good still'.
EJB gave evidence-in-chief that he also had a work mobile telephone provided to him by the government utility. At 7.00 pm on 10 May 2007, he sent a text message joke on his work mobile telephone to PMC's work mobile telephone. The joke concerned 'indigenous people'. EJB also said
[2013] WADC 1
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that either just before or after the alleged assault and battery, he had sent a
couple of text messages to PMC.
The telephone records show that this text message was sent at
7.08 pm.
58 PMC's evidence-in-chief was that he became aware of the problem at
the remote site upon completing a training session at about 2.00 pm on 10 May 2007. He arranged for some extra personnel to attend at the site and made two trips thereto from the depot. He took SAB to this other work site. He said there were five or six employees at this other work site, including TB, AB and GBC. Five were working on a lower level, whilst the electrician S worked on an upper level.
59 PMC said that TB and AB left by 5.00 pm. SAB, GBC, S and
himself remained until about 5.30 pm to make sure that the repairs had been completely carried out. It was then necessary for him to return to the depot to check the alarms from the remote site and so he took SAB with him in his Holden Rodeo utility because she had parked her car at the depot. GBC and S remained at the remote site and then they were also to leave for home once they were ready to do so.
60 PMC's evidence was to guess that he and SAB returned to the depot
after 6.00 pm. Upon their return, SAB did not exit his vehicle to open the front gate but rather, he did because he had the master key on a key ring attached to his trouser belt. Only supervisors had such a key. He therefore opened the gate, got back into his motor vehicle, drove to the office building at the depot and asked SAB if she needed to use the toilet. She declined and then walked to her car. He then checked the alarms from the remote site in the office. As he closed the office door behind him when leaving, he saw SAB drive past him and exit the depot in her car. He then drove out of the depot in his vehicle, locked the gate behind him and went home.
61 In cross-examination, PMC said that only he could lock or unlock the
depot gate because only he had the key. Trainees were not given such a key to this gate, but then he widened the class of persons having such a key to maintenance men and workers.
62 PMC denied that, after concluding work at the remote work site on
10 May 2007, he drove SAB to any place other than the depot. He only
drove her from that site to the depot.
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PMC denied the alleged assault and battery. He denied saying anything to SAB about a secret.
PMC denied receiving a text message from EJB and said that he did not know how to send or receive a text message at that time.
PMC accepted that he made a telephone call to SAB later in the evening. His evidence-in-chief on 1 November 2012 was as follows:
Do you have any conversation with her after that?---We have a working alone policy in the (utility) that if you work back late – I don't know whether it has changed now of course, but back then it was a working alone policy. If you worked back late – as the supervisor of the day I had to make sure that everybody got home and I rang [GBC], I rang [S] and I rang [SAB] on the night and I rang her and [SAB] answered her phone and I said, 'I'm just ringing to make sure that you're okay and that you're home,' and she said, 'All is good; I'm down shopping down the street.
Did you say anything more to her?---No, I just said, 'Well, this is the – you know, this is our policy of working alone,' which no doubt I would have, and I said, 'Righto, I'll catch you on Monday; it's my rostered day off tomorrow.
Righto?---And that's the last time I spoke to [SAB].
Righto. Now, can you remember what time of the day – what time of the evening you rang her?---Well, I'd got home and I'd forgotten to ring people, so I had rung them and it was probably more close to 7 o'clock than it would have been to 6 o'clock.
66 In his evidence-in-chief, PMC also stated that he had first telephoned
SAB and then he called GBS and S. He was quite definite that these calls had been made.
67 In cross-examination on 2 November 2012, PMC was again quite
clear that he called GBC and S in accordance with policy and he 'would have thought' and 'as far as I'm aware', he did so on his work mobile telephone. He could not recall making those calls on either his personal mobile telephone or home land line, but he had previously made work purpose calls on his home land line.
68 PMC was then shown his work mobile telephone records from which
it is apparent that he did not call GBC and S on his work mobile telephone. Nonetheless, he insisted that he had telephoned each of them and he said he could have done so on either his home land line or personal mobile telephone.
[2013] WADC 1
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69 However, one month later when cross-examination resumed on
3 December 2012, PMC accepted that his earlier evidence of having telephoned GBC and S on either his personal mobile telephone or land line was mistaken.
70 Then, PMC also said that he had to make a decision on the day
(ie, 10 May 2007) and it was obvious that he did not see the need to call either GBC or S. He was not obliged to do so. He accepted his mistake because he had since examined the telephone records for each of his personal mobile and land line telephones. These records had been obtained under subpoena during the month since he last gave evidence. Copies of these records had been provided to counsel for both parties, but PMC's counsel in turn provided a copy to PMC before the resumed hearing of his cross-examination.
71 On this occasion of giving evidence, PMC explained that when he
worked at the utility, supervisors had a discretion to telephone an employee 'that was missing' or one who 'had taken a little bit longer than you thought'. He was not obliged to call. It was a 'discretion as to who you rang and why at the time'. His evidence remained that he telephoned SAB from the need to make a call in accordance with the policies on working alone and overtime.
PMC accepted that SAB was not working alone on 10 May 2007. He said she was a woman, it was after dark and she did not do a lot of overtime. He said that the reason for him calling her was a 'welfare check' as part of the working alone policy at the time. When he rang, she said she was shopping and that was 'all good', so that was the end of his responsibility.
73 PMC denied having received a text message from SAB's partner later
in the evening, again claiming that he did not know how to send or receive text messages. PMC said that he had never seen the text message sent to him by SAB's partner.
The telephone records
74 The telephone records reveal that on 10 May 2007 at 4.13 pm, a text
message was sent from PMC's mobile telephone to SAB's mobile telephone. SAB was not asked at all about this message. PMC was not asked about it in his evidence-in-chief on 1 November 2012 or in cross-examination on 2 November 2012.
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75 When the text message at 4.13 pm was pointed out to PMC in
cross-examination on 3 December 2012, he tried to suggest that he was in
training until around 4.00 pm, but he had 'no idea of the times'.
PMC said that it was impossible for him to have sent the text message at 4.13 pm. He could not explain how it was sent.
77 The telephone records relating to EJB's work mobile telephone
confirm that EJB sent a text message to PMC on 10 May 2007 at 7.08 pm.
78 The records relating to PMC's work mobile telephone also confirm
that he telephoned SAB at 7.50 pm that evening.
The telephone records show that PMC did not make calls on his work mobile telephone to either GBC or S on 10 May 2007.
80 The telephone records of PMC's personal mobile telephone and
home land line do not record any calls having been made to GBC or S, or
any calls at all, from either of those telephones on 10 May 2007.81 In fairness to PMC, it should be acknowledged that his personal
mobile telephone was a pre-paid telephone, such that it may be that his supplier's records produced under subpoena as to his calls made on that telephone on 10 May 2007 are deficient, given that those records show that an account is not sent for any such calls, such that there is no need for the supplier to keep a record thereof for itemisation of billing purposes. Evidence was not led as to what the supplier's records truly indicate, or whether it was possible for the supplier to provide other records.
Otherwise, there is no dispute as to the telephone records.
| Findings |
83 There is no independent evidence which corroborates the evidence of
SAB as to the acts involved in the alleged assault and battery itself. There is also no independent evidence which confirms PMC's denial of the alleged acts.
The independent evidence is generally either consistent with SAB's evidence, or at least, not inconsistent with it.
85 SAB's case stands or falls upon the acceptance or rejection of her
evidence. The credibility issue in the trial as to her evidence and that of PMC ultimately requires a critical examination of all the evidence, not
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only their oral evidence upon matters in issue, but also matters which are
facts relevant to a fact in issue.
The return to the depot gate at 6.00 pm and departure to the secluded place
86 It is common ground between SAB, GBC and PMC that PMC drove
SAB from the remote work site to the depot gate at about 6.00 pm on
10 May 2007.
GBC said he concluded work at 'roughly 6 o'clock' and he saw PMC's vehicle in a stationary position at the depot front gate at about '10 to 6' pm. He also saw SAB's vehicle. GBC did not see either PMC or SAB at all. They were not seen out of PMC's vehicle. Nobody was in SAB's vehicle.
88 GBC could well have expected to have seen the motor vehicles of
SAB and PMC at the depot because, he said, they left the other site shortly before he did.
89 GBC's evidence is important because it places PMC's vehicle at the
depot front gate at about 6.00 pm, being a time at which PMC agreed that SAB was with him in his vehicle at the depot gate. Further, on GBC's evidence, neither SAB nor PMC were seen out of PMC's vehicle and nor was SAB seen in, or near, her own vehicle, or between the two vehicles.
90 GBC was not cross-examined to the effect that it was dark or near
dark as he drove past the depot. He was not cross-examined in any way to suggest that he could not have seen SAB's or PMC's motor vehicles or SAB or PMC by reason of limited light. Rather, the cross-examination of GBC having been able to see PMC's car related its distance from the highway, on which GBC was driving, and the existence of buildings which might have blocked GBC's line of vision between the highway and PMC's car.
91 PMC did not give any evidence-in-chief to suggest that it was dark
when GBC drove past the depot. He did not suggest in evidence that GBC would have had difficulty in seeing his motor vehicle at the front gate because of the lack of light.
92 PMC only raised the issue of darkness on 3 December 2012 when he
was trying to justify the reason for his call to SAB at 7.50 pm. This is
dealt with this more fully below at [130] – [140].93 The point of departure between SAB and PMC is that SAB alleges
PMC dropped her at the depot only after the alleged assault and battery,
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which on her evidence was not at 6.00 pm, but at some time between the
text message at 7.08 pm and the telephone call at 7.50 pm.94 PMC however, said that he delivered SAB safely inside the depot
gate and outside the depot office at about 6.00 pm after which, SAB walked to her car and then she drove out of the depot in her own motor vehicle. His next and only subsequent dealing with her was the 7.50 pm telephone call. He did not drive her to the secluded place.
95 GBC's evidence confirms that neither SAB nor PMC are mistaken as
to the approximate time they arrived together at the depot gate from the remote work site. However, GBC's evidence does seem to contradict PMC's evidence, because if PMC simply drove to the gate, got out to open it, got back into his vehicle to drive through the open gate, did drive through it and delivered SAB to the office, then GBC would most likely have seen PMC out of his stationary vehicle walking from his vehicle to the gate to open it or back to the vehicle after opening it and probably with the driver's door open or PMC exiting or entering his vehicle, or he would have seen PMC driving through the gate. But he did not. His evidence was that PMC's stationary vehicle was at the gate and he saw nothing else. GBC's evidence is consistent with SAB and PMC both sitting in PMC's vehicle, or at least not inconsistent with it.
96 SAB said that upon arrival at the gate, she got out to open it, but
PMC called her back to the vehicle as he was not comfortable sitting in his motor vehicle at the depot gate in case they were seen by one of the bosses or some workers. He wanted to go for a drive to talk some more and so she thought she would 'be the ears for him to talk'. She got back into his vehicle.
97 SAB's explanation about how she came to leave the depot gate and
drive with PMC in his vehicle to the secluded place is plausible. PMC
denied that version of events.
The 7.08 pm text message joke
98 The similarity of the evidence from SAB and EJB concerning the
7.08 pm text message joke is such that the likelihood is, that, it is more probable than not, that, they were both referring to the same text message joke in their evidence.
There are three aspects to this evidence concerning the 7.08 pm text
message joke.
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First, the content of the joke. SAB said that it related to 'niggers, cotton wool and drugs'. EJB said that it related to 'indigenous people'.
Secondly, SAB identified EJB as the sender of the joke and EJB said that he sent such a joke.
102 Thirdly, SAB said that EJB in fact sent his joke to PMC whilst she
was with PMC. This was after having been at the depot gate at 6.00 pm, but before the 7.50 pm telephone call. EJB said he sent the joke about 7.00 pm, based on his own notes. The telephone records show that the joke was sent at 7.08 pm.
SAB was not cross-examined as to the contents of the text message joke, or PMC's claimed inability to send or receive text messages.
EJB was not cross-examined as to his knowledge of PMC being either able or unable to send or receive text messages.
105 EJB's evidence is independent of SAB and PMC. It is consistent
with, and corroborates, SAB's evidence about the joke. SAB must have been present with PMC at 7.08 pm when EJB sent the text message joke and it was received on PMC's mobile telephone in order for her to have known the content, the sender and the time when the text message joke was received by PMC.
It follows that I accept her evidence as to the content of the text message joke, its author and the timing of it being sent.
107 Accordingly, this finding places SAB with PMC approximately one
hour after SAB, GBC and PMC all agree that PMC returned SAB to the depot gate and after which, PMC claimed that she immediately left to go home alone in her own car.
This finding remains even if PMC did not know how to receive and send a text message.
109 In her evidence, SAB said that PMC read the text message joke from
EJB. However, in her statement to the police, SAB said that when the message was received, PMC stopped the alleged assault and battery and passed her his mobile telephone requesting that she read the message, which she did, and then she replaced the telephone in its holder on the dashboard of his vehicle.
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110 SAB was not cross-examined as to this discrepancy between her
evidence and her statement which was tendered into evidence and adopted
by her. However, my finding is that it does not diminish her credibility.111 Whether SAB or PMC opened the text message joke and read it, the
fact remains that SAB was able to give details of the content of the joke, she nominated EJB as the author of it and her evidence is consistent with the receipt of it at about the time the telephone records show it was sent. These details were confirmed by EJB. There was no other explanation put forward as to how SAB could know the details of the joke, its author and the time of it being sent, unless she was present when it was received. She could not have ascertained even the existence of the joke unless she was actually present with PMC at the relevant time. It is not suggested that EJB, PMC or anyone else otherwise revealed the joke to her. SAB disclosed the details of the text message joke to the police on the day following the alleged assault and battery.
112 This finding does not prove the occurrence of the alleged assault and
battery itself. It is however strongly supportive of SAB's evidence and
strikes at the heart of PMC's evidence.
The return to the depot after the alleged assault and battery
113 SAB said that after the alleged assault and battery, PMC drove her
back to the depot. Upon arrival, she opened the depot gate and PMC drove her to her car. She was not cross-examined about not having a key to unlock the depot gate. Nor was she challenged to the effect that only PMC had such a key. Further, GBC, EJB and SCD, who was another superior at the utility, were not cross-examined as to who had keys to the depot gate.
114 SAB's evidence was that PMC followed her out of the depot, without
attending to anything at the depot, either within the office or elsewhere.
It was put to her that PMC went to the office building, but she disagreed.115 PMC gave evidence that he entered the depot office building and
completed his tasks inside the office and was leaving when SAB drove
past him to leave the depot.116 It follows from PMC's evidence that the need to do check the alarms
inside the office did not take very long at all and PMC had time to do it before SAB left the depot. Therefore, she may not have noticed him doing whatever he did in the office.
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The call at 7.50 pm and other calls to GBC and S
117 The telephone records further confirm that a series of three calls
were made on PMC's work mobile telephone on 10 May 2007. The first two calls are of no importance to this case. The third call was to SAB at 7.50 pm.
118 SAB said that the 7.50 pm telephone call was to check on her and to
thank her. This evidence effectively repeated the detail she provided in
her police statement about the call.
SAB was not otherwise cross-examined about this call.
120 In his evidence-in-chief, PMC sought to justify his telephone call to
SAB at 7.50 pm by reason of a work policy of telephoning utility employees when they were working alone or working overtime. PMC was not truthful about this, as will be seen below at [130] – [140].
121 Further, his evidence-in-chief on 1 November 2012 of also
telephoning GBC and S in accordance with such policy was not truthful. He said that he first telephoned SAB and then he called GBC and S. He was definite about this.
PMC was not truthful in cross-examination on 2 November 2012 when his evidence was to the effect that he had made his calls to GBC and S on his work mobile telephone. The records show that PMC did not call GBC or S on his work mobile telephone on 10 May 2007.
123 In cross-examination on 2 November 2012, PMC was provided with
his work mobile telephone records showing that he did not call GBC or S on that telephone. His response was to then invent his evidence about calling them on either his private mobile telephone or his land line.
PMC was not truthful in cross-examination on 2 November 2012 about telephoning GBC and S from either his private mobile telephone or his land line to check that they had arrived home safely.
125 First, it is unlikely that he would telephone them from a private
telephone because he was provided with a work mobile telephone for that
very purpose.
Secondly, he himself would have to pay for any calls so made on his private telephones.
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127 Thirdly, telephone records confirm that such calls were at least not
made on PMC's land line. PMC's personal mobile telephone was pre-paid and the records may not detail any calls made on it, as previously noted, such that reliance cannot be placed on the personal mobile telephone records alone.
128 Fourthly, on 3 December 2012, when shown telephone records for
his private mobile telephone and land line, PMC conceded that he had been mistaken in his evidence-in-chief and cross-examination on 1 and 2 November 2012 respectively about having made calls to GBC or S. PMC conceded that he did not call them at all, and he even went so far as to say that it was obvious that he did not see the need to call either of them. This was a major reversal of his earlier evidence when he insisted that he had in fact called each of them.
129 PMC was forced to change his evidence first, after seeing his work
mobile telephone records and secondly, after seeing his private mobile
and land line telephone records.
Policy calls
130 When cross-examined about the working alone or working overtime
policies on 2 November 2012, PMC, at first, made reference to 'policy', but on 3 December 2012, he referred to a 'discretion' to make a 'welfare check' on employees, which he was not obliged to make. Perhaps nothing turns on this difference of wording, if any. However, on the latter occasion, PMC referred to the situation on 10 May 2007 as being dark and after overtime work. He said that SAB was female and previously she had not performed much overtime work. Hence there was a need to make a welfare check on SAB, but then he conceded that it was obvious he did not need to make a call to either GBC or S. This evidence does not withstand scrutiny because PMC left GBC and S together, but otherwise alone, working at the remote site. If anyone needed to be checked on so as to ensure that they had left the remote site safely and to have returned home, it was GBC and S.
131 In any event, SAB was not working alone, it was only about 6.00 pm
and even if it was dark as PMC claimed, he himself had returned her to the depot from the remote work site, and on his evidence, he did so to the office inside the depot, where her car was parked. She then only had to walk to her car and drive home. He saw her drive out of the depot. It can be inferred that this was all done safely.
On the evidence of GBC, the light was 'probably pretty good still'.
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133 PMC first made the claim of darkness when his cross-examination
resumed on 3 December 2012. It was another piece of invented evidence to justify his call to SAB at 7.50 pm. He had invented his evidence that policy required him to call her and at first, he sought to support that evidence by reference to calls to GBC and S. However, prior to giving evidence on 3 December 2012, PMC knew that the subpoenaed records relating to his personal mobile telephone and land line did not support his previous evidence of having made policy calls on either of those telephones to GBC and S. Further, SAB had ceased working overtime and she was not left alone at a remote work site at which she may have met with an accident. He himself had returned her to the depot. She lived relatively close by to the depot and even closer to the remote work site where they had been that afternoon. PMC knew that. PMC was groping for reasons to support his call to SAB at 7.50 pm. He therefore invented his evidence of darkness so as to justify the 7.50 pm call.
134 As previously observed, PMC ultimately agreed on 3 December
2012 that he did not in fact call GBC or S. That he did not call them is, no doubt, the truth. The concession was made only because PMC knew by then that his previous false testimony was disclosed from the telephone records. His change of evidence was not made because of some mistake or misunderstanding. PMC said it was obvious that he did not see the need to telephone either GBC or S. PMC was not obliged to do so. Given the circumstances outlined above, there was also likewise absolutely no work related reason for PMC to telephone SAB at 7.50 pm by way of a policy call, welfare check or in the exercise of a discretion.
135 The circumstances of that working day did not require either a policy
call or the exercise of a discretion to call SAB. They may have required
such a call to GBC and S.136 The so called welfare check was a ruse designed by PMC to justify,
support and provide a legitimate reason for his call to SAB at 7.50 pm,
when there was no such legitimate reason.137 It was not suggested to SAB in cross-examination that the reason for
the call to her was policy, as PMC indicated when giving his
evidence-in-chief.
It was not suggested to GBC in cross-examination that PMC had called him pursuant to any policy, or at all.
139 It was not suggested in the cross-examination of GBC, EJB or SCD
that there was such a policy or policies and they were not asked about
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circumstances in which any such policy or policies should be implemented,
or any discretion exercised 'as to who you rang and why at the time'.
S was not called to give evidence.
141 Finally, in cross-examination on 3 December 2012, PMC referred to
the present day utility policy of 'working alone' which he distinguished from another 'after hours working policy'. He had sought out and obtained written copies of each of these policies from another utility worker after his previous cross-examination on 2 November 2012.
PMC was asked from whom he had obtained the copies of the utility's present day policies and he answered by asking:
am I at liberty to say, because he's a [utility] employee?
Later he was again asked the same question and this time, having advised the name of the supplier, he said:
I made him aware that I would bring his name up in the courthouse and he said he had no problem with it.
There is a lack of consistency in these two answers.
PMC's ability/inability to read text messages
The text message at 7.08 pm from EJB is referred to in SAB's police statement. She gave oral evidence about it.
PMC invented his claim that he did not know how to send or receive such a text message.
147 The reasons for this finding are first, that this claim is perhaps
unlikely from someone who is required to have a work mobile telephone
for work purposes.148 Secondly, EJB sent other text messages to PMC at about this time.
It is unlikely that EJB would send text messages to PMC if he knew that PMC did not know how to receive or send such text messages. It is also unlikely that EJB sent text messages to PMC after this alleged assault and battery because the utility took possession of PMC's work mobile telephone and motor vehicle.
149 Thirdly, a text message was sent from PMC's mobile telephone to
SAB at 4.13 pm on 10 May 2007. The telephone records confirm this. This evidence is consistent with PMC knowing how to send text
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messages, but equally, it is not necessarily inconsistent with PMC not knowing how to send a message. It is possible that some other person sent such message on his mobile telephone, but PMC did not offer any explanation as to who that other person might have been, or how such message may have come to be sent.
150 The preponderance of evidence is that the conclusion of training on
10 May 2007 was between 2.00 pm and 2.30 pm. PMC said he did not take his mobile telephone into the training room. He left his mobile telephone on his desk during training. The likelihood is that after the completion of training, PMC retook possession of his work mobile telephone and that he had it with him for the rest of the day. It is unlikely that he left the depot and travelled to the remote site without taking his work mobile telephone. PMC was not continuously present at the remote site from immediately after the training session until driving SAB back to the depot gate at about 6.00 pm. Rather, he drove back and forth between the depot and that site at least twice and probably a third time, and he did not arrive to stay at the remote site until shortly before work finished on that day, according to SAB and at approximately 4.30 pm, according to GBC. Neither SAB nor GBC were challenged about this evidence.
The likelihood is that the 4.13 pm text message was sent by PMC.
152 The issues of time and the number of trips from the depot to the other
work site are examples of matters of forensic disadvantage from which PMC and other witnesses might be expected to suffer at trial some 5 1/2 years after the event.
153 Finally, PMC said that at one stage, SAB had shown him how to
send and receive a text message, but she failed to teach him. Apparently, this lesson was in front of two members of staff, who were named by PMC. They laughed at his inability to learn how to do deal with text messages.
154 It is unlikely that these two named female staff members could have
given evidence to support PMC's claim about this lesson or PMC's inability to send or receive text messages, as they were not called as witnesses – Jones v Dunkel (1959) 101 CLR 298. In any event, little or nothing turns on this particular evidence.
155 On PMC's evidence, SAB must have shown him how to open a text
message before 10 May 2007, because they never worked together again
after that date.
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156 Accepting for the sake of the argument, that, SAB had shown PMC
how to open a text message, then he should have known how to open a text message. It is implausible to think that PMC did not know how to open a text message so as to enable him to read it.
157 Counsel for PMC also submitted that either from her evidence or her
police statement, SAB knew that PMC could not receive or send text messages. But the evidence was not to that effect. This claim that SAB so knew was not part of her oral evidence and it was not included in SAB's police statement.
158 Further, PMC's evidence on this point is not plausible because if it
was true that SAB knew that PMC could not send or read text messages, despite having been shown by her, then she would have known that there was no point in sending him a text message and she would not have sent him a text message about pornographic DVDs and she would have told her partner, KJT, to not bother sending a text of complaint to PMC on the night of 10 May 2007. Indeed, her evidence was that she was scared of PMC and did not want that text message sent to PMC.
It was not suggested in the cross-examination of SAB that PMC could not send or read a text message, on a mobile telephone.
It was never put to EJB in cross-examination that PMC did not know how to send and receive a text message.
161 In any event, it matters not whether SAB or PMC opened and read
EJB's text message joke at 7.08 pm. Reasons for this have been set out above.
My finding is that PMC did know how to receive, read and send a text message on a mobile telephone.
Text messages left on PMC's mobile and the presence of DVDs in PMC's work bag
163 It is not disputed that EJB and SAB's partner, KJT, both sent text
messages to PMC on 10 May 2007. What is in dispute is whether PMC read them. If the messages had not been deleted, then that fact would have been apparent from the mobile telephone itself, whether or not they had been read.
164 Anyone from the government utility who took possession of PMC's
work mobile telephone and who found and read at least the text message from SAB's partner on 10 May 2007 might well be likely to have referred
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it to the police, but not necessarily. The relevance of the text messages at 4.13 pm and 7.08 pm and the text message concerning the presence of DVDs in PMC's work bag, if any, might not have been apparent to an employee at the utility.
165 The evidence of SAB's partner, KJT, supports SAB's evidence that
two days before the alleged assault and battery, SAB had reported her discussion with PMC to KJT as a result of which SAB told KJT that she was to deliver pornographic DVDs to PMC. This is only evidence of SAB stating her intention to deliver DVDs and nothing more.
166 It does not however seem that the police sought to obtain records
from any telephone supplier about the detail of the DVD text message, the text message joke sent by EJB and the text message sent by SAB's partner to PMC. It does not seem that the police checked the message bank on PMC's mobile telephone.
167 A police detective sergeant who investigated the alleged assault and
battery, but who did not take SAB's statement, said that police carried out a forensic examination of PMC's motor vehicle. Such examination centred upon what the detective sergeant said 'police would be looking for in a sexual assault case', namely 'things like saliva or semen'. The detective sergeant did not give evidence about searching for and finding, or not finding, any DVDs.
It is not known when the police carried out the forensic examination of the motor vehicle.
169 The search of PMC's motor vehicle for the DVDs was not
specifically put to the detective sergeant in cross-examination by PMC's
counsel. There is no evidence whether the police looked for them or not.170 It would be wrong to guess or speculate about evidence concerning
the message bank in PMC's work mobile telephone and contents of his working bag left in the back of PMC's work motor vehicle, including DVDs.
171 PMC nominated a work colleague, RB, as being the person from the
government utility who took possession of PMC's work mobile telephone
and motor vehicle.172 When cross-examining SAB, defence counsel referred to RB giving
evidence, but he did not give evidence and presumably, he was not able to give any evidence which would advance PMC's defence: Jones v
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Dunkel. Even if the DVDs were not in PMC's work bag in the utility, that would not assist PMC's case.
173 In the end, nothing much turns on whether anyone found any text
messages in PMC's work mobile telephone or whether they found any
DVDs in his work bag.
PMC's wife's working hours
174 SAB said that PMC told her that his wife worked on Thursday
evenings and that PMC had previously suggested they meet to talk on a
Thursday evening when his wife was at work.175 PMC agreed that his wife did work on Thursday evenings. He also
said that this was information which was readily available within the
depot lunchroom, but this was not put to SAB in cross-examination.176 It is the fact that this alleged assault and battery occurred on a
Thursday when PMC's wife would ordinarily have been at work and its occurrence is therefore consistent with PMC being able to stay away from the family home and his wife later than on other work days when his wife would notice him not returning home late from work.
PMC's circumcision
SAB said that during the course of the alleged sexual assault and battery, she saw PMC's penis. She said that he is circumcised.
PMC accepted that he is circumcised. This is consistent with SAB's evidence, or at least, not inconsistent with it.
| DNA | |
| 179 | SAB agreed with PMC's counsel that PMC was 'slobbering' on her. |
| Hence, saliva could be expected to have been found on her clothing. Chemical tests proved the presence of saliva on her clothing. It is not however possible to say if the DNA obtained from SAB's clothing came from saliva or other human tissue at the same site as the saliva. | |
| 180 | The DNA evidence obtained by the police, whilst excluding PMC |
| from contact with some areas of SAB's clothing where human tissue was found, nonetheless did not exclude him from being a possible donor of human tissue producing DNA at other areas of her clothing. | |
| 181 | Arguably, in the absence of any other evidence, the presence of |
| saliva supports SAB's evidence of it originating from PMC in the alleged |
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assault and battery. The DNA evidence is really equivocal, but that which
shows PMC as a possible donor is not inconsistent with SAB's evidence.
Conversation at the depot
SAB's evidence was that there was considerable discussion at the depot of matters of a sexual nature.
183 EJB gave evidence, consistent with SAB's evidence, that, there were
inappropriate discussions conducted by staff at the depot prior to SAB commencing her traineeship. That continued after her commencement. EJB said that SAB was involved in it, trying to 'fit in'. She was the first female to work at the depot who was not stationed in the depot office.
184 It was against this background of inappropriate commentary, that,
PMC told JPR, a manager at the institution which arranged SAB's traineeship with the government utility, that, because of her sexual preference, maybe all SAB 'needed was a penis inserted into her or a hard dick up her or something like that'. This evidence from JPR of PMC speaking in a sexual manner about SAB does not sit well with PMC's claim that he worked with SAB in a professional manner and that theirs was a mostly professional relationship. It is more in keeping with PMC conducting discussions with SAB of a sexual nature.
Some other matters of evidence
There are some other aspects of the evidence worthy of
consideration.
186 It is not proposed to detail all of the evidence, but for example, when
detailing the various acts allegedly performed by PMC, SAB did not seek to embellish her evidence. Further, SAB did not seek to embellish her evidence when discussing the consequences of the alleged assault and battery including, in particular, economic loss. On the contrary, she limited her description of those consequences. She also gave evidence contrary to her best interests.
187 SAB also had moments when she could not remember details.
For example, when cross-examined about PMC's motor vehicle, she described the console and objects located in or beside it. Counsel put to her that there was a fire extinguisher on the console and thereby inferred that it would be difficult for PMC to engage in the alleged sexual acts with her. SAB could not remember the presence of a fire extinguisher and said so. In so doing, she gave the appearance of an honest witness answering truthfully to the best of her recollection.
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188 SAB knew that the police did not prosecute PMC. In that regard, the
police evidence was that they believed it would be difficult to prove lack of consent. SAB accepted in cross-examination that she 'pecked' PMC by way of a kiss. This concession goes to the consent issue, but it reflects well on SAB's credit knowing how it may have affected the decision by the police not to prosecute, yet she did accept having said this and it is against her interests. On the other hand, she could hardly deny what was in her police statement. This however is not a case in which the issue is consent. Here, the acts constituting the alleged assault and battery are strenuously denied.
189 SAB readily admitted her use of prohibited drugs, which also at face
value does not reflect well on her credit, but it is the fact that the ready acceptance of matters against her interests which increase her credibility as a witness.
190 SAB's counsel tendered into evidence by consent hospital emergency
department records and the Sexual Assault Referral Centre records, both concerning SAB, from 11 May 2007. The persons who prepared those records did not give evidence. No further reference was made to these records until PMC's counsel submitted in his closing evidence that SAB's history to the relevant SARC doctor must have been that anal penetration, cunnilingus and the kissing of her breasts had not occurred as the records do not disclose those things. However, the SARC doctor's writing is impossible to decipher in full and the doctor concerned did not give evidence. How the records came to be as they are was not disclosed in evidence. Further, the emergency department records prepared by another person at least partially contradict this submission.
191 Defence counsel also submitted that EJB's notes of what SAB told
him contradicted SAB's evidence. However, these notes are of little value. They contain advice of what other people said and the contents were at least partly contradicted by SAB in May 2007.
192 SAB was cross-examined to the effect that none of the acts
comprising the assault and battery had occurred at all. Her evidence of
those acts essentially remained intact at the end of the cross-examination.193 My finding is that SAB was a witness of truth whose evidence of all
matters fundamental to her case withstands scrutiny. This is based not only on her demeanour, but from reading and re-reading the transcript of her evidence and the support she has from the independent evidence as outlined above. She was a truthful, accurate and reliable witness upon
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important matters. There are some differences between her evidence, her police statement and other records, but that can be expected after 5 1/2 years and these differences do not affect her credibility.
194 On the other hand, PMC was not an impressive witness. True it is
that PMC was required to recall events from May 2007. That brings with it the forensic disadvantage referred to previously. PMC's denials, reconstruction and fabrication of events was exposed by the telephone records. I simply do not accept his evidence and reject it, unless corroborated by another witness.
195 It is difficult to prove a negative, or to disprove positive allegations,
but nothing was offered from PMC upon which reliance could be placed in order to accept his evidence. It was no doubt difficult and embarrassing for him to publicly deal with this issue. He sought the comfort of his wife throughout the trial when not in the witness box by continually cuddling her in the public gallery. He said that his marriage was 'sacred' to him.
196 The discussions of a sexual nature between SAB and PMC show that
the assault and battery did not occur in a vacuum or 'out of the blue'. The discussions also reveal, in a limited sense, a form of grooming by PMC of SAB in a work environment in which he, as her superior, was in a position of power over SAB as a vulnerable 20-year-old who was possibly still coming to grips with her own sexuality and concerned about her partner's sexual preferences. She could not resist PMC by reason of the power imbalance in his favour by reason of their work relationship and also by his physical presence. PMC is approximately 6 foot 2 inches tall and weighs 125 kg.
197 These discussions with PMC also reveal his sexual interest in SAB
and why he may have thought SAB would not complain about his
unwelcome advances towards her.198 SAB alleged in her statement to police that on the day of the alleged
sexual assault, when she was climbing upstairs at the remote work site away from the depot, PMC had poked her in the bottom from behind and said 'if you don't move it, I'll stick my finger up your arse'. This was not part of her evidence-in-chief. It was not something that she suddenly offered in her evidence-in-chief. However, she was cross-examined about her statement to the police dealing with it. PMC denied that he said this.
199 I accept that PMC made the remark alleged by SAB as they climbed
the stairs on 10 May 2007 at the remote work site. Such remark was not
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heard by anybody else because of engine noise and because they were on higher ground. All SAB could do was to turn around and give PMC 'a dirty look given that he was my supervisor and my boss'. This remark was the forerunner of the assault and battery which occurred shortly thereafter.
I accept and find that:
(1) after first returning to the depot, PMC took SAB to a secluded
area;(2)
SAB and PMC were at the secluded area for some time, including at 7.08 pm, when the text message joke from EJB to PMC was received;
(3)
whilst at the secluded area from some time after 6.00 pm, but before 7.50 pm, PMC intentionally committed the assault and battery in the manner described by SAB as set out below; and
(4) at 7.50 pm, PMC telephoned SAB to thank her for what had
occurred earlier that day.
Browne v Dunn
201 Finally, it will have been observed above that SAB and her witnesses
were not cross-examined about various matters. The rule in Browne v Dunn (1893) 6 R 67 (HL) requires the nature of PMC's case to have been put to SAB and her witnesses so that she could have the opportunity to call evidence to corroborate her own evidence or to contradict matters upon which PMC relied. That is required so as to provide procedural fairness to SAB.
202 I have not referred to this rule on each occasion that mention has
been made of failure to cross-examine SAB and her witnesses, but it is necessary to do so now and to point out that no inference adverse to PMC has been drawn by reason of failure to cross-examine witnesses. The absence of cross-examination however, does make it easier to accept uncontradicted and otherwise believable, plausible and indeed, sometimes compelling evidence from SAB, her witnesses and written records.
Complaint
203 I have not found it necessary to consider any evidence from SAB and
her witnesses as to matters of complaint and demeanour immediately following the assault and battery. The admissibility of this evidence was
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not argued in any way by PMC's counsel. I will therefore ignore it in a similar fashion to the decision of Kaye J in AM v KB [2007] VSC 429. Unlike that case however, the evidence of complaint and demeanour in this case is not admissible for other reasons and no regard is had to it. However, should the evidence of complaint be admissible, then my finding would be that it bolsters SAB's evidence because it is how a young woman in her situation could have been expected to react after the events which have now been found to be proved.
Causation
204 In his closing submissions, counsel for PMC submitted that rather
than the assault and battery causing SAB's psychiatric or psychological symptoms, she had a number of other issues in her life which caused those symptoms.
205 SAB must, to the required standard, prove a material causal
connection between the assault and battery complained of and the damage
suffered by her.206 Causation is a question of fact to be determined after analysis of all
available evidence as a matter of common sense. The 'but for test' is not a comprehensive and exclusive test of causation, rather a value judgment may be called for: March v E & MH Stramare Pty Ltd (1991) 171 CLR 506, Bennett v Minister for Community Welfare (1992) 176 CLR 408; Medlin v State Government Insurance Commission (1995) 182 CLR 1; Chappel v Hart (1998) 195 CLR 232 and BGC Residential Pty Ltd v Fairwater Pty Ltd [2012] WASCA 268 [41] – [43].
207 A causal connection will be material if it is shown on the evidence
not to have been negligible. Once SAB proves the assault and battery and that such event has been followed by injury within the area of foreseeable risk, a prima facie causal connection will be established and PMC will bear an evidential burden to show that such assault and battery has not had any effect. However, once there is sufficient evidence to displace SAB's prima facie case, it remains for her, upon the whole of the evidence, to show that the injury was caused by PMC's assault and battery upon her.
208 First, SAB described the effects of the assault and battery upon her.
KJT confirmed, that, from her practical point of view as SAB's partner, the majority of SAB's relationship issues were triggered by that assault and battery. SAB had trust issues after that. I accept this evidence which, in its wider terms, formed the basis of the expert opinions.
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209 Secondly, the expert evidence to be outlined below points to the
assault and battery causing psychiatric and psychological symptoms for SAB. Of course, each expert had his or her own expert qualification which reflected his or her respective opinion, but the uncontradicted evidence was that SAB suffered a psychiatric condition of moderate severity. The defence criticised the experts for not knowing SAB's full background. However, the defence did not call any fully briefed expert evidence to contradict SAB's experts.
210 Following the common sense approach of the High Court in March v Stramare, the preponderance of evidence is to the effect that the assault and battery was causative of SAB's foreseeable psychiatric condition.
Assessment of damages
Having found liability and causation in favour of SAB, it is now necessary to assess her injuries, loss and damage.
The assault and battery
212 After parking his motor vehicle near the water pipeline in a secluded
position, PMC alighted from his vehicle to urinate. He returned to the vehicle having taken his shirt off, given that it was a hot day. He was wearing a singlet underneath the shirt.
213 PMC sat in his driver's seat and then leant over towards SAB, put
one hand on her thigh and one hand her breast outside her shirt. PMC touched her on the outside of her clothing over both breasts and her groin. He then lifted up her shirt and bra, undid her pants and put his hand on top of her underpants.
214 PMC then began to touch and suck SAB's breasts and to put his hand
inside SAB's underwear, touch her clitoris and penetrate her vagina with
his fingers.215 PMC then pulled SAB's pants down to about her knees. He was able
to do this because she was slouched forwards in the passenger seat. PMC was still in the driver's seat. PMC put his head between her legs and began to try to lick her vagina. He prevented her from pulling her pants up.
216 SAB was scared of PMC. He moved closer to her and tried to sit
next to her, but there was insufficient room and so he crouched in the foot well in front of her and digitally penetrated her vagina with two fingers, which hurt. He asked if she was enjoying herself. He performed
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cunnilingus on her and then wanted her to 'kiss him and taste myself'. He tried to tongue kiss her, but she was able to reject that. He again digitally penetrated her vagina, and then her anus 'just moving them back and forth'. He asked if she had been penetrated in the anus before, if she had ever wanted that before and if he could do it to her and she said 'no'.
SAB repeatedly said 'no' throughout the ordeal.
218 It was at about this point that, the text message joke from EJB was
received. Following this, PMC alighted from the vehicle and walked around the front of it and stood on the open door frame of the passenger side of the vehicle and put one hand behind SAB's head and placed his erect penis into her mouth, 'thrusting back and forth'. She felt 'pretty gross, sick'. She said that he realised his penis could not completely go into her mouth.
219 SAB then checked on her own mobile telephone for a message from
her partner, but there was nothing. She asked if they could leave, but PMC wanted another 'half hour' and he climbed back into the passenger foot well and again digitally penetrated her vagina and kept fondling her breasts.
220 PMC asked if she would get out of the motor vehicle to have
intercourse with him. SAB's evidence was that PMC realised that she would not get out of the vehicle and so he continued digital penetration of her vagina, but even harder than previously and then he again digitally penetrated her anus, which 'really hurt'. She 'felt like crying', but did not do so. He again performed cunnilingus on her and then he sought to fondle her breasts and kiss her again until a point was reached, at which, SAB said that she assumed PMC wanted to return home before his wife returned home after finishing her work. He returned to his side of the vehicle and drove back to the depot.
Nature of injuries
221 Immediately following the assault and battery, SAB suffered from
some welts which were observed by her partner and another lady resident at their home. They were not apparent when SAB attended the Sexual Assault Referral Centre on the following day for medical examination. The welts were short lived and of little consequence.
222 The other physical injury suffered by SAB was an infection
following the alternating penetrations of her vagina and anus by PMC
with his right forefinger.
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223 SAB's evidence was that she suffered a discharge from her vagina in
consequence of this infection. She received antibiotics from a doctor in
Northampton. The infection was apparently short-lived.224 SAB was, of course, challenged about the occurrence of the
penetrations, but her evidence that she suffered an infection was not
challenged.225 SAB's evidence was that she was distressed following the assault and
battery. On the following day, she attended the Sexual Assault Referral Centre for a forensic medical examination and she also attended upon the police to make her complaint. Further, she discussed the matter both with her superiors at the government body which had organised her traineeship with the utility and with a counsellor, Ms B Williams. SAB was advised that she was not able to return to work and she did not return for three months.
226 During this three month period, SAB spent a lot of the first month in
bed at home after which she began to leave the home and visit her parents, but she did not go there frequently by reason that they lived near PMC. She also obtained counselling in Perth, both in person and by telephone contact from her home town.
227 In the second and third months following the assault and battery,
SAB arranged for friends to visit her and she obtained work at a nightclub, in order to get back into life 'otherwise I wasn't going to get anywhere. Had to keep soldiering on'. Prior to the assault and battery, SAB had lead an active life. She explained that she 'loved my sports. I loved socialising, getting out, seeing friends, having a drink'.
After the third month, SAB's superiors cleared her to return to work,
which she did.
229 When SAB returned to work at the utility, she was 'emotionally
screwed up in the head'. She engaged in binge drinking and drug taking 'just to try and get back to reality'. By this, she meant to forget the assault and battery and to put it to one side.
230 She was only half-hearted in her work, was scattered and not really
sociable. She did not want to finish tasks and did not really want to go to
work.
Relationships at the utility were strained. It was necessary for SAB to go to Perth in order to complete her certificate of traineeship.
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232 The traineeship was only for two years. Completion of it did not
guarantee her work at the utility. She ceased work at the utility on 15 July
2008.233 In addition to her work at the nightclub, SAB also worked as a
driveway attendant for a fast food outlet and then in a pizza making establishment. This work was only for a few months at each of those work places, which were all in regional WA.
234 SAB also feared a confrontation with PMC. She described how,
once, when driving past his home, she saw PMC on his verge with his back to her. She felt like knocking him down with her motor vehicle. On another occasion, she wanted to take to him with a knife 'to make him feel pain, hurt, sorry. I wanted to chop his willy, his penis off and ram it up his arse'. Her feelings against PMC were strong.
Towards the end of 2008, SAB moved to Perth to 'get away from it all. Didn't like living every – day to day, watching my back'.
236 Prior to the assault and battery, SAB did not require any medication.
However because of it, she was on antidepressants for about 4 1/2 years until, she said, October 2011, but she was not too sure when her medication was changed to again provide for mood stabilisation, which had been required earlier and was later dispensed with.
237 SAB also ceased counselling in late 2011 by reason of cost factors
and because she found it difficult 'to relive the assault and just having to tell it over and over and over again'. She would like further counselling if funds were made available for that.
238 SAB suffers from flashbacks, and relapses. There are days when she
does not feel like doing much, but rather, she 'stays at home in bed, watches TV, just moans around the house'. This still occurs every few months and is triggered by anything to do with intimacy. The last occasion on which this occurred was two to three months before trial.
SAB now goes out of her way to avoid male persons and does not believe she can trust them.
240 KJT gave evidence that the majority, but not all, of SAB's
relationship issues were triggered from the assault and battery and that
SAB had 'trust issues with everybody after that'.
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Nature of medical treatment
Ms B Williams
241 Ms B Williams is currently a clinical psychologist, but at the time
she saw SAB, she was a registered psychologist and had been so for 12 years. She provided counselling to SAB, initially by telephone from Perth and later in person at Perth.
242 Ms Williams advised that SAB was initially in a state of shock, quite
withdrawn, not willing to talk about the assault and battery and reluctant to communicate. Ms Williams sought to restore some normal functioning in SAB. She referred her to the Sexual Assault Referral Centre in her home town and discussed with her attendances with a local psychologist.
Later, SAB reported disturbed sleep due to nightmares to
Ms Williams.
244 Ms Williams saw SAB in person on 23 May 2007 when she
described acute trauma reactions consistent with someone in a state of acute stress. SAB was not sure how to deal with family and friends learning about the assault and battery.
245 There were further follow up telephone calls between May and
August 2007, when SAB's condition stabilised and she was no longer having nightmares. There was only one personal attendance on SAB, but there were otherwise 10 or 11 discussions by telephone with her.
Ms K Weatherstone
Ms Weatherstone is a clinical psychologist based in the country and who first reviewed SAB on 14 November 2007.
247 Case notes provided to Ms Weatherstone from Ms Williams
indicated that SAB had suffered bullying in the workplace after the assault and battery with other workers being evenly divided in their loyalties between SAB and PMC. SAB had been teased about trauma reactions and she suffered gender slurs.
248 Ms Weatherstone gave evidence of a report to her by SAB that work
colleagues pressured SAB to have sex with one of her managers. She said that this upset SAB, whose condition was aggravated, she had difficulty sleeping, was stressed and afraid to return to work. It was not a place where she felt safe to work. She felt re-victimised each time she went to work.
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Ms Weatherstone said that the assault and battery by a male created difficulty for SAB regarding her sexual preference.
250 Ms Weatherstone thought that the cause of SAB's injuries/symptoms
was consistent with post traumatic stress disorder following a sexual assault. It was difficult for SAB to work at the utility with the same people.
251 Ms Weatherstone provided counselling to SAB who made slow,
uneven improvement until mid-2008, when she stabilised, but then had setbacks resulting from continued issues with her work at the utility which were serious, including social rejection, slurs and low level harassment from co-workers and mixed or intermittent support from her superiors.
SAB also had issues with personal relationships with her partner and significant family members.
253 Ms Weatherstone reported that SAB would have disrupted and
lowered functioning in occupational and personal settings, with mistrust of people, and particularly of men and organisations. The assault had dislodged SAB from her employment because of bullying in a male environment that was patriarchally supportive. These are predictable sequelae to unresolved or complicated post-traumatic stress.
254 Ongoing antidepressant and psychological therapy was required,
together with occupational rehabilitation referral. Ms Weatherstone thought SAB needed to work in a safe, non-judgmental setting where she is not the only female in a predominantly 'okker' male context.
Ms Weatherstone last saw SAB on 18 June 2008.
Dr C M Chang
On 16 July 2008, SAB attended Dr C M Chang, general medical practitioner, upon referral from her solicitors.
257 SAB told Dr Chang that her relationship with her partner had been
'affected big time' following the sexual assault. She complained of stress, insomnia, decreased libido and difficulty in communicating. Since the assault, she had not participated in softball, hockey, baseball, or clubbing.
258 Dr Chang reported that SAB was not on any medications.
He prescribed her antidepressants and referred her to Dr John Perica, consultant psychiatrist.
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Dr Chang certified SAB off work for three months.
Dr Chang reported that SAB had been receiving counselling from a psychologist in Geraldton.
261 One month later in August 2008, SAB was looking better than the
first visit and reported feeling better. She was less depressed. The Efexor antidepressant was causing her constipation. The medication was increased and later in the month, she was feeling better. Thereafter, Dr Chang continued to review SAB.
262 In May 2009, SAB was having good and bad days. Dr Chang
thought she was still affected by the assault and battery, but she was
working full time and was required to continue with her medications. SAB last consulted Dr Chang on 16 March 2012.
263
Dr J Perica
264 SAB attended Dr Perica on five occasions between August and
November 2008. He did not assess her capacity for work, but said she developed symptoms of depression following the assault and battery.
265 In October 2008, Dr Perica added Epilim to SAB's medication
regimes to deal with mood swings, but that had to be ceased because she became too drowsy. However, the Epilim dosage was later increased and obtained the desired results.
Dr F K F Ng
Dr Ng is a consultant psychiatrist who reviewed SAB for medico-legal purposes in May 2009.
267 Dr Ng was satisfied that the assault and battery led SAB to develop a
major depressive episode with some associated anxiety symptoms resembling post-traumatic stress disorder, even though there were not sufficient symptoms to diagnose post traumatic stress disorder itself. She may however have had that stress disorder in the past, but it had partially resolved with robust antidepressants and counselling.
268 At its worst, SAB's psychiatric condition was moderately severe, but
with treatment, it had improved. She required ongoing treatment when
seen in May 2009.269 By reason that SAB denied any previous personal psychiatric history,
then given the physically and emotionally traumatic nature of the assault
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and battery, Dr Ng was of the opinion that that incident was instrumental in precipitating the onset of her psychiatric condition. Her recent breakup from her former partner at the time of the assault and battery would have exacerbated her problems to some extent.
270 Ongoing treatment was required by way of antidepressant medication
and there was a requirement for consultant psychiatric services. This treatment would be required for the next two to three years at a cost of $50 to $100 per month, if not more. SAB did not commence that treatment.
271 Dr Ng also thought that SAB would benefit from concurrent
psychotherapy. She required six to eight sessions thereof at
approximately $285 per treatment. SAB has not received this treatment.272 Dr Ng expected further psychiatric improvement, but it was more
likely than not that she would be left with some degree of residual psychiatric symptoms into the foreseeable future in spite of any further psychiatric improvement. SAB was fit for full time work, but her psychological efficiency at work was then currently diminished to some extent by reason of her ongoing psychiatric symptoms which would diminish her ability to persist at work tasks and also would diminish the pace at which she could carry out those tasks and which further, would diminish the quality of her work.
273 Dr Ng reviewed SAB on 20 October 2011. SAB was then resident in
the regional town in which she was born and worked. She was a stores person working on a full time basis and was happy at her work. She had had other work since her May 2009 work.
274 SAB continued to see Dr Chang on an occasional basis in 2011 and
also a general medical practitioner in her regional home town. She had not seen a consultant psychiatrist, nor her psychologist, for the previous two years. She ceased antidepressants in about August 2011 as they did not seem to help, but she was recently recommenced on a mood normaliser as she was suffering mood instability. Her libido was low. Her then motivation and drive were not good. Her sleep was occasionally disturbed with initial insomnia. She was able to enjoy her life.
275 Dr Ng was of the opinion that SAB had largely recovered from the
previously diagnosed major depressive episode with associated anxiety. Psychotherapy was no longer required. SAB was however left with some residual anxiety over PMC and fears that he may seek revenge upon her. She expressed anxiety about meeting him face to face. She was suffering
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some unrelated stress at the time, relating to the daughter of her new
partner. Ongoing medication is required.276 Dr Ng thought SAB would be left with fear of her alleged perpetrator
seeking revenge into the foreseeable future and that she will also have
some degree of anxiety at any potential face to face meeting with him.277 Mood normaliser for one further year would be required, but that was
mainly for stress resulting from her relationship with her current partner's daughter and to a lesser extent, fluctuations stemming from the assault and battery at a cost of $30 to $50 per month. Psychotherapy was not warranted.
SAB was then fit to continue full time work in any capacity commensurate with her past work experience and qualifications.
Loss of amenities
279 Given the matters outlined above, an appropriate award for the
injuries, pain and suffering, loss of amenities and enjoyment of life is the
sum of $60,000.
Past medical expenses
280 PMC would not agree SAB's items of special damage. They were
therefore provided as a bundle and tendered as an exhibit. In summary,
they are as follows:
Ms K Weatherstone & Associates $210.00 Rangeway Pharmacy $111.40 Bluff Point Pharmacy $ 68.40 Guardian Pharmacy Balga $ 39.60 Friendlies Chemist Morley $286.00 $715.40
The amount claimed for Ms Weatherstone is the gap fee only. The actual cost of each consultation was not provided.
282 The team coach at Compensation Recovery, Specialised Provider
Services of Medicare Australia has advised that notification of SAB's claim was not required and that her claim is not considered to be
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compensation for the purposes of the Health and Other Services
(Compensation) Act 1995 (Cth).
Future medical expenses
283 In October 2011, Dr Ng said that SAB's psychiatric condition arising
directly from the assault and battery had largely resolved. He reported that SAB required medication mainly for stress arising from the daughter of her current partner, but to a lesser extent, for her vulnerability to mood fluctuations stemming directly from the assault and battery at a cost of $30 to $50 per month for a period of one year.
Psychotherapy is no longer required.
This is a range of $360 to $600 for one year. I will allow $450.
Past loss of earning capacity
SAB is to receive compensation for her loss of earning capacity which is productive of loss.
287 At the time of the assault and battery, SAB was 20 years of age
working pursuant to a two year traineeship with a government utility in regional Western Australia. Given her then age and the traineeship, her previous work history is of limited value in determining her earning capacity, except to show that she has a demonstrated ability to seek and obtain work.
SAB's financial earnings history is as follows:
Year ending Number of Taxable income Nett Nett
30 June employers income weekly
per annum income
2002 2 employers $4,615 2003 2 employers $6,052 2004 2 employers $8,195 2005 4 employers $11,196 2006 3 employers
$17,570 $16,150.30 2007 2 employers
$30,093 $26,227.59 $504.37
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2008 2 employers $37,425 $31,489.13 $605.60 2009 4 employers $22,258 $20,685.43 $397.79 2010 2 employers $36,748 $34,122.55 $656.20 2011 1 employer $65,503 $51,479.32 $989.98 2012 1 employer $41,011 $35,602.10 $684.65
289 In the years ending 30 June 2002 and 2003, SAB was still at school.
The nature of the work she then undertook was stacking shelves at a supermarket and working at a fast food outlet.
SAB continued stacking work until after she commenced her employment with the government utility in 2006.
291 Prior to commencing work at the utility, SAB twice worked in an
industry associated with the government utility. She left one of those places by reason of her unhappiness with other workers who did not like female workers. She left the second of those places because of its 'useless boss', she did not get an apprenticeship there and because it was away from the regional town in which she grew up and she wished to return to her home town.
292 The evidence from SAB was that she was off work for three months
immediately following the assault and battery without loss of pay, but was then requested to return. However, upon return, she was, on her own admission, 'emotionally screwed up in the head. I did a lot of binge drinking, drug taking just to try and get back to reality --- to try and clear the assault. Try and forget, put it aside'. As a result, her ability to perform her work tasks meant that she was only 'half heartedly there. I'd daydream a lot. Be scattered, not really sociable'. Ultimately, she said she was 'asked to leave' the government utility, which she did in August 2008. SAB also said that SP, from the body which placed her in the traineeship with the utility, had told her that her safety could not be guaranteed at the utility. This is, of course, hearsay.
293 On the evidence, it is not clear why SAB ceased to work for the
utility. It is clear that there was no guarantee that she would be kept on by
the utility for work after that traineeship.
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Representatives from the government institution which placed SAB in the traineeship were not asked why she ceased work.
295 EJB had no real knowledge why SAB did not continue to work for
the utility. He referred to an incident involving SAB and her partner following the false return of a positive test for SAB with respect to illicit drugs. It seems that it was SAB's partner who caused that incident but following it, certain people at the utility did not wish SAB to continue with her work there. EJB wrote a report recommending that she be dismissed and that was when she transferred to Perth to continue her traineeship.
296 EJB had complaints about all four trainees at the utility, including
SAB, but it is not known whether the other trainees were kept on at the utility after their respective traineeships concluded.
SCD did not explain why SAB did not continue to work for the
utility.
298 In any event, SAB completed her traineeship and, at face value, she
ought to have been able to obtain work based on that successful completion at some other institution. That however may not necessarily be the case. Evidence was not led one way or the other.
299 SAB was certified unfit for work in August 2008 for a further three
month period until 8 November 2008. She did however obtain part time work in October 2008. Thereafter, she has undertaken various roles with different employers.
In the financial years ended 2008, 2009 and 2010, SAB had a number of casual jobs. She moved to Perth at the end of 2008 and in 2011 and 2012, she worked for only one employer, but not the same employer, in each of those years. It appears that she returned to her home town during one of those years.
301 Had the assault and battery not occurred, then SAB may well have
been able to obtain work continuing with the utility or elsewhere, but she
did not.302 In May 2009, Dr Ng certified that SAB's symptoms diminished her
ability to persist at work tasks, the pace at which she could carry out those
tasks and the quality of her work.
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303 In October 2011, Dr Ng considered that SAB would be left with
ongoing fear and a degree of anxiety for the foreseeable future, but was
otherwise fit for full time employment.
SAB's income increased in 2011, but then it was reduced in 2012. This was not explained other than to say she was older in 2011. However, that would also apply in 2012.
305 It is clear, that, there was a reduced earnings history in the 2009 year
and that is reflected to a lesser extent in the 2010 year. It is also clear that notwithstanding being put off work by the utility for three months in 2007 and being medically certified off work in August 2008, SAB has nonetheless sought and obtained part time work during each of those periods. This demonstrates a desire to work.
306 SAB claims that she ceased to work at the utility by reason of the
assault and battery. This therefore caused her to not work full time in the
following financial years ending 2009 and 2010.307 It is also appropriate to recognise that SAB was the first female to
work in the physical environment of the government utility in what could be described as 'a man's world' in which she was a 19/20 year old female seeking to fit in to that world in circumstances where she and that world were quite different from each other. The assault and battery impacted on her personal dynamics and her sexual integrity. Accepting that she may have had trouble in maintaining employment with the government utility after the completion of her traineeship in any event, nonetheless it was the assault and battery which largely contributed to her deterioration and behaviour upon her return to work. EJB said there was plenty of work available at the utility and PMC himself thought that SAB could be a good worker and that is why he 'persevered' with her.
308 In all the circumstances of this claim, the appropriate response is to
provide a global sum for past loss of earnings, recognising the loss of steady employment with the government utility for reasons SAB has outlined herself and noting also the evidence of EJB and PMC as set out above.
309 In the circumstances, I will allow $25,000 by way of past loss of
earning capacity to include loss of income, loss of superannuation benefits
and interest thereon.
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Future loss of earning capacity
310 Dr Ng reported in October 2011 that SAB's psychiatric condition
arising directly from the assault and battery had largely resolved, but not
completely.
SAB has returned to her home town where she lives and works. She has previously had encounters with PMC subsequent to May 2007 and she reacted to those sightings. Dr Ng said SAB continued to have fear that PMC would seek revenge upon her and she suffered anticipatory anxiety of any face-to-face meeting with him. SAB still required mood normaliser.
312 Further, SAB said that she still suffers from flashbacks and relapses.
There are days when she does not feel like doing much and she stops at home. This can occur every few months and last occurred two to three months before trial.
313 SAB does not trust male persons. She goes out of her way to avoid
them. This must be very difficult to do in the workplace. The evidence however did not suggest that SAB has lost any time off work for these abovementioned matters.
314 In May 2009 and October 2011, Dr Ng certified SAB as fit for full
time work in any capacity that is commensurate with her past work experience and qualifications. However, in May 2009, he also said that her psychological efficiency at work was diminished to some extent in that her ability to persist at work tasks was diminished, as was the pace at which she could carry out work tasks and so too was the quality of her work. Given that Dr Ng's 2009 qualification of diminished working capacity was not repeated by him in 2011, it must be that such diminution no longer exists.
The evidence is not persuasive of any future loss of earning
capacity.
Gratuitous services
SAB has abandoned any claim for past and future gratuitous
services.
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Exemplary damages
317 SAB has not made any claim for exemplary damages and
accordingly, in the absence of a claim and argument about such a claim,
nothing should be provided.
Conclusion
318 For the reasons set out above, SAB has proved to the required
standard that she was sexually assaulted and battered by PMC causing
loss and damage. She entitled to damages as follows:
Loss of amenities $60,000.00 Past medical expenses $ 715.40 Future medical expenses $ 450.00 Past loss of earning capacity $25,000.00 $86,165.40
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