Sharon Whitehead v Michael Moon

[2013] ACTSC 243

SHARON WHITEHEAD v MICHAEL MOON
 [2013] ACTSC 243 (5 December 2013)

TRESPASS TO THE PERSON – sexual assault – sexual intercourse without consent – whether consent implicit from previous sexual activity between parties.
DAMAGES – personal injury – trespass to the person – sexual assault – sexual intercourse without consent – loss of virginity – psychological and psychiatric consequences – prior psychological vulnerability – effect on assessment of damages of subsequent incident exacerbating psychological injury – exemplary damages not awarded – aggravated damages awarded for manner in which trial conducted by defendant.

Civil Liability Act2002 (NSW), s 3B(1)(a)

No. SC 1044 of 2008

Master Harper
Supreme Court of the ACT

Date:   5 December 2013

IN THE SUPREME COURT OF THE     )
  )          No. SC 1044 of 2008
AUSTRALIAN CAPITAL TERRITORY )          

BETWEEN:  SHARON WHITEHEAD

Plaintiff        

AND:  MICHAEL MOON

Defendant

ORDER

Judge:  Master Harper
Date:  5 December 2013
Place:  Canberra

THE COURT ORDERS THAT:

1. judgment be entered for the plaintiff for $668,856.00.

1. the plaintiff’s costs be paid by the defendant.

1. the order as to costs be stayed for 14 days.

1. in the event that either party notifies an intention to apply for a different order about costs within 14 days, the order as to costs be stayed until further order.

1. This is an action for damages for personal injury arising from assault and battery.  The plaintiff claims that on Wednesday 13 August 2007 she was sexually assaulted by the defendant in a serviced apartment in Sydney.  Although both parties then lived, and still live, in the Australian Capital Territory, the fact that the alleged assault took place in New South Wales means that I must apply any relevant statute law of that State rather than of this Territory, in relation to liability and damages.  It is, however, common ground that the provisions of the Civil Liability Act2002 (NSW) will not have any effect on my task in relation to either aspect of the matter. Civil liability in respect of sexual assault or other sexual misconduct is expressly excluded from the operation of the Act by s 3B(1)(a). I have not been taken to any other NSW legislation which might have any application, and I proceed on the footing that both liability and quantum are governed by the general law.

The pleadings

1. The plaintiff pleads in the Statement of Claim that on or about 6 August 2007 she commenced working as a contractor at the Child Support Agency.  She was there supervised by the defendant.  On 13 August 2007, they travelled to Sydney to attend a conference on the following day.  Arrangements had been made for them to stay at a serviced apartment with two bedrooms and two bathrooms.  On arrival at the apartment they agreed as to which bathroom and bedroom they would use.  During the evening, after the plaintiff had gone to bed, the defendant came uninvited and naked into her bedroom and assaulted and battered her without her consent, kissing her, removing her clothing, fondling her and having sexual intercourse with her.  She feared for her personal safety and her continuing employment.  She suffered an affront to her dignity and person.  She suffered injury, disability and damage, including major depression and chronic post-traumatic stress disorder.  She was put to expense for treatment and lost income.  She claimed damages including exemplary damages and aggravated damages.

1. Proceedings were commenced on 17 December 2008.  The Amended Statement of Claim upon which the plaintiff went to trial was filed on 7 July 2010.  The only amendment was to make a specific claim for aggravated and exemplary damages.

1. The solicitors for the defendant sought particulars of the Statement of Claim.  Additional particulars provided by the solicitors for the plaintiff included the following:

The defendant as a contractor at the Child Support Agency performed duties equivalent to an Executive Level 2 director.  He supervised two teams led by team leaders, one being the plaintiff and the other being an Executive Level 1 public servant.  The defendant was responsible for performance assessments of those under his supervision.  The plaintiff’s understanding was that her contract was subject to termination at any time notwithstanding that the contact was nominally for twelve months.

They travelled to Sydney by plane from Canberra.  The travel was arranged by an identified Executive Assistant at the Child Support Agency, who also booked their accommodation at the Meriton World Tower in Liverpool Street in Sydney.  They arrived in Sydney at about 6:40pm.  They took a taxi from the airport to the city.  The plaintiff went to bed between 11:00pm and 12:30am.  About two minutes after she had gone to bed the defendant came into her bedroom and lay on the bed. 

The plaintiff, accordingly to the particulars, subsequently received treatment from the Rape Crisis Centre in Dickson; the Sexual Assault Unit at the Canberra Hospital; her general practitioner, Dr Dianne Hannaford; a psychologist, Dr Janine Mahoney; Calvary Hospital; and psychiatrists Dr Lev Fridgant and Dr Ilona DiBella.  The plaintiff made a claim for workers’ compensation.  The insurer, GIO, paid some expenses.  Other expenses were paid by Medicare Australia and by the plaintiff’s private health insurer.

1. She claimed that she convalesced at home between 17 August 2007 and 10 June 2008.  As a contractor with the Child Support Agency, she was at the time of the assault employed by Compass Pty Ltd, apparently a contract provider company.  She was totally incapacitated for work between 17 August 2007 and 10 June 2008.  She did not return to work at the Child Support Agency after 16 August 2007.  On 10 June 2008, she commenced work with the Commonwealth department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) as a permanent employee at the EL2 level.  She was said to be partially incapacitated for work from 10 June 2008 to 30 June 2009, earning less at FaHCSIA than she had been earning before the assault at the Child Support Agency.  She had taken leave for some periods during her employment with FaHCSIA for absences from work which she said were caused by the assault. Following a suicide attempt she was admitted to Calvary Hospital on 30 January 2009 and remained an inpatient until 27 March 2009. 

1. Upon receipt of the particulars, the solicitors for the defendant filed a defence.  The defendant admitted that on 13 August 2007 he travelled to Sydney with the plaintiff to attend a conference, which took place on 14 and 15 August 2007.  He admitted the accommodation arrangements.  He said that they were made following an oral agreement with the plaintiff to travel to Sydney on the evening of 13 August rather than the morning of 14 August 2007 and to share the cost of the accommodation for the first night.  He admitted that the parties reached agreement about use of the bedrooms but denied that they discussed allocation of the bathrooms.

1. He admitted entering the plaintiff’s bedroom but denied that his entrance was uninvited and denied being naked.  He admitted the sexual activity short of intercourse, but said that this took place with the plaintiff’s consent.  He denied intercourse.  He asserted that the parties had already kissed earlier on the evening of 13 August 2007, and that the plaintiff attempted to force his penis into her vagina.  He denied that he assaulted or battered the plaintiff.  He asserted that he and the plaintiff had been in a physical relationship prior to the date of the alleged assault at her request and with her consent, and said that she had “frequently requested and/or consented to the defendant contacting her person”. 

1. The plaintiff’s solicitors sought further and better particulars of the defence.  The solicitors for the defendant provided the following particulars:

The plaintiff through her conduct earlier on the evening and by leaving her bedroom door ajar provided the defendant with an implied invitation to enter her bedroom.  He was wearing black boxer shorts.  Kissing between them was by mutual consent and was reciprocated.  The plaintiff had removed her pyjamas in the course of sexual activity in her bed.  Her consent had been evidenced through her conduct which included leaning in to kiss the defendant and reciprocal fondling of his body.  He had attempted to insert his penis into her vagina on three occasions during the evening and early morning.  On each of these occasions his penis had slightly penetrated her vagina.  They had kissed, in his estimate, on about 15 to 20 times during the evening before he went into her bedroom.  They had kissed at two pubs and several adult stores on Oxford Street in Sydney between about 8:30 pm and their return to the apartment, and again at the front of the apartment building on their return, and in one of the bathrooms, before the defendant went into the plaintiff’s bedroom.  Each of them had initiated kissing at different times during the evening.

1. The defendant further said in the particulars that he and the plaintiff had been physically or sexually intimate on about eight occasions before the date of the alleged assault.  One of these occasions had been at the Spice of Life adult store at Fyshwick in September or October 2006.  Another had been at an area near Lake Ginninderra in the plaintiff’s car following a lunch at the Lighthouse restaurant at Belconnen in about November 2006.  There had also been occasions during November 2006 while the parties were working at the Department of Immigration when they had been physically intimate.  There had been, he said, numerous occasions when she had rubbed her breasts against him at work as part of general flirting between them.

The plaintiff

1. The plaintiff was born in June 1968.  She was 39 at the time of the alleged assault and is now 45.  She was single at all material times.  She had never been married and was a virgin at the time of the assault. 

1. The plaintiff grew up at Wangaratta in country Victoria, where she went to school.  She then trained as a schoolteacher, gaining a Bachelor of Applied Science at Bendigo College of Advanced Education and a Diploma of Education from the same institution, which was by then a campus of La Trobe University.  She was subsequently awarded a Graduate Diploma of Applied Science in Information Technology from Charles Sturt University and a Graduate Certificate in Education from Deakin University.  In later years she gained a Masters Degree in Information Technology from Charles Sturt University. 

1. After her initial training she worked for some years as a schoolteacher, but subsequently moved to her career as an information technology professional with the Commonwealth Public Service in Canberra.  She has lived in Canberra since 2002, working for a number of Departments, sometimes as a public servant and at other times as a contractor through outsourcing companies.  She worked at the Department of Immigration during 2005 and 2006, then at the Department of Veterans Affairs until August 2007 when she moved to the Child Support Agency.  She had been working there for a short time when the alleged assault occurred.

1. She later worked for FaHCSIA for some time.  By the time she commenced her evidence at trial in June 2011 she was working at the Australian Competition and Consumer Commission as an IT contractor, employed by an outsourcing company.  She was by then a Senior Server Engineer on a salary of $122,000.00 a year. 

1. Although they do not seem to have interfered with her work, the plaintiff had some psychological problems, probably from childhood, to which I shall return in more detail.

The defendant

1. The defendant was born in 1960.  He was 47 at the time of the incidents with which the case is concerned and is now 53.  He joined the Royal Australian Navy at the age of fifteen, attending Naval College at Jervis Bay where he obtained a Diploma in Applied Science.  He was subsequently awarded a Diploma of Management and a Resource Management Graduate Diploma.  He spent twenty years in the Navy, retiring with the rank of Commander, having commanded HMAS Cook and HMAS Harman.  On leaving the Navy he went into information technology project management.

1. Like the plaintiff, he worked for various Commonwealth instrumentalities, generally as a contractor.  He met the plaintiff in August 2005 when they were both working at the Department of Immigration, setting up servers for a trial of technology provided by a company named Citrix. 

1. The defendant had been married, but at about the time he met the plaintiff, his marriage had broken down or was in the process of doing so.  He was later divorced and went into a relationship with another woman.  The evidence did not descend into detail as to his marital or relationship status at the time of trial.

The oral evidence

1. The plaintiff gave evidence in chief for about a day and was cross-examined, extensively and rigorously, for about two days.  Oral evidence in the plaintiff’s case was also given by two psychiatrists, Dr Fridgant and Dr Saboisky, and two psychologists, Dr Mahoney and Dr Tonkin. 

1. The defendant gave oral evidence for almost a day.  There was no medical or other oral evidence called in his case. 

1. There was a substantial volume of documentation tendered in the plaintiff’s case, including reports by health professionals, police records and tax returns and notices of assessment.  Senior counsel for the defendant tendered a number of documents also, including medical and psychological reports and records.

The plaintiff’s evidence

1. During 2005, the plaintiff moved from another Commonwealth Department to the Department of Immigration.  To do so she left her position as a public servant and became a contractor.  She was employed by an outsourcing company.  She worked at Immigration until November 2006, when she moved to the Department of Veterans Affairs in a similar capacity.

1. She first met the defendant at the Immigration Department.  He was already working there as a project manager.  After she had been there for a couple of weeks, her project manager left and was replaced by the defendant.  Thereafter he was her immediate superior. 

1. The plaintiff’s evidence was that she had had a boyfriend at the age of twenty-one.  Their physical relationship had gone no further than kissing and fondling of her breasts.  Since then she had had no similar relationship, and was a virgin. 

1. Work was extremely important to her.  She was completing a Master’s degree, and living in a one-bedroom apartment.  Her life was generally limited to work and study.  Her social life involved occasionally going out after work with colleagues.  She regularly travelled to Victoria to visit her family.

1. When she first met the plaintiff she did not particularly like him.  She thought that his behaviour at work was inappropriate and inconsistent with the Public Service Code of Conduct.  He made derogatory remarks, and remarks with sexual connotations.  There was at least one occasion when he asked her to walk up a set of stairs ahead of him, and told her that he “liked looking at her arse”.  She said that she was scared by this but concentrated on her work.  She thought that because she did not know the defendant away from work she had the safety of the workplace.  She did nothing about his comments.

1. She said that he kept a baseball bat under his desk.  On occasions he would become angry with the outsourcer who worked for Immigration and would smack the bat into his hand and say “you may as well bend over and make it easier for them”.

1. During 2006, the plaintiff came to work after a weekend, and found the baseball bat lying on her keyboard smeared in Vaseline.  The plaintiff said that she felt disgusted and embarrassed about this.  She cleaned the bat up and put it back at the defendant’s desk.

1. She told of an occasion when she and the defendant went to a meeting in another building some distance away.  The defendant offered to drive her there.  During the trip he made a joke and put his left hand on her right thigh.  He removed it immediately.  The plaintiff thought that this behaviour was inappropriate, and thereafter took her own car to meetings to avoid sharing a car with him.

1. In September 2006, the defendant asked the plaintiff for some help with his son’s curriculum vitae.  The plaintiff suggested some changes.  She said that she had a lot of experience in applying for jobs and had helped out numerous people in a similar way.

1. By October 2006, the plaintiff’s relationship with the defendant had become a little more personal, to the extent that he talked to her about divorce proceedings he was involved in.  She listened to him and supported him generally during many conversations.  She became aware that he was having an affair with a married woman, that he frequented nudist colonies on weekends and that he went to adult shops.  He told her that his sons became embarrassed because he walked around his house naked when their friends were there.

1. During October 2006, the defendant became aware that the plaintiff had successfully applied for a contact position at the Department of Veterans Affairs and was leaving the Department of Immigration.  Her last day was to be 3 November.

1. On Wednesday 1 November, he called the plaintiff to his desk and gave her a brown paper bag which contained a battery-operated vibrator, blue and shaped like a dolphin.  She understood that this was a sex toy intended to be inserted into the vagina.  She said that she was embarrassed and disgusted.  She put it into her bag, and told the defendant that she could not believe that he had done this.

1. Until that day, the plaintiff’s evidence is that there had been no further physical contact with the defendant.  A farewell lunch for the plaintiff had been arranged, with the defendant and another contractor.  She went to the lunch in the defendant’s car.  The defendant told her that the other contractor was unable to come to the lunch.  On the way he took her to an adult shop, the Spice of Life, at Fyshwick.  They went in and looked at the stock.  This was the first time the plaintiff had been to an adult shop.  She said that the experience was “more about conquering the fear of going somewhere where I thought it was forbidden territory”.  The defendant took a pair of handcuffs off a shelf and suggested that they could make use of them.  The plaintiff told the defendant to put them back and to stop embarrassing her.  She said that she was disgusted at the suggestion but laughed it off because she did not want to look abnormal.

1. At the shop, the defendant put his hands around her waist, and put his hand down the back of her pants.  Each time that he did so she pushed his hands away and told him to desist.  She said that she did not like this physical contact, did not ask for it and was embarrassed.

1. They were in that shop for about fifteen minutes, then went to another adult shop, Adam and Eve.  They looked around and the plaintiff bought a DVD which she said was “targeted to women”.  She watched the DVD once subsequently, alone, but never talked to the defendant about it.

1. The defendant and the plaintiff then went to lunch at a cafe in the Canberra Centre.  During lunch she had two glasses of wine.  She was not a regular drinker and this made her feel a little tipsy.  As they were leaving the cafe the defendant put his hands around her waist and down the back of her trousers.  She was embarrassed and brushed his hands away.  She was conscious that they were in an extremely public place.

1. After lunch they returned to work.  The defendant told her that he had something he wanted to send to her mobile phone via Bluetooth.  This required her permission, in the form of making some entry on her phone to permit the transfer.  She did so, being at that stage unaware of what he wanted to send her.  When she looked at her screen she realised that he had sent her a photograph of his erect penis, which he had apparently taken himself with his mobile phone.  She was embarrassed and disgusted as she looked at it.  She immediately closed the telephone so that no one would see the screen.  She told the defendant that she could not believe that he had done such a thing.  His reply was “It’s just something that you can remember me by.  Perhaps you can do the same thing, return the favour”.  She said “I don’t think so”. 

1. The plaintiff did not delete the photograph from her system.  She said that although she was an IT worker, she was not particularly good with her telephone, and had difficulty in deleting entries or organising material on the telephone.  She was in the habit of synchronising her telephone with her computer when she got home each evening, and presumed that she had done so without giving particular thought to the photograph, which was identified by an obscure file name bearing no hint of its content.  The photograph had thereafter remained on her storage system, through a number of changes of personal computer over the years.

1. Later on the same day, she and the defendant spoke about going downstairs from their office for a coffee.  There was a coffee shop at ground level in an adjoining building.  They took the lift down.  They were alone in the lift.  The defendant moved across and pressed his body into hers.  She was embarrassed and pushed him away.  She was concerned that at any time the lift might have stopped and the door might have opened.  The defendant kept trying and she kept pushing him away. 

1. At the ground floor they got out and started to walk toward the coffee shop.  The plaintiff got to the coffee shop but turned around and realised that the defendant was no longer with her.  She went looking for him.  She waited outside the toilets but he did not emerge.  She thought that he might have received a telephone call, and she checked meeting rooms on the ground floor.  There was a meeting in one of them.  She opened the door to the other and found that the defendant was there.  There was no one else in that room.  The defendant closed the door and kissed the plaintiff.  Her evidence was that she liked this and kissed him back.  He started fondling her breasts and putting his hands down her pants.  She liked the feeling.  The defendant proceeded to undo her trousers and pull them and her underpants down to her ankles.  She was leaning against the table in the room.  The defendant began to use his fingers and tongue on her vagina.  She became quite excited.  She was willing to have intercourse at that moment, and she said to him “do it”.  The defendant said no because he would be too loud.  Soon after that, they stopped, she got dressed, they left the room and went and got their coffee.

1. She said that the defendant was unaware that she was a virgin at that time.  She said that no one knew this except her mother.

1. During the next two days, the plaintiff’s last days at the Immigration Department, she made a point of not being alone with the defendant because she did not want a repeat of the incident in the conference room.  She wanted to treat it as a one-off incident.  She had no intention of having a personal relationship with the defendant, a man with totally different values and morals to hers.  She referred there to his sleeping around, public displays of affection, nudity, remarks in the workplace, and the baseball bat.  During those last two days the plaintiff said that their contact was limited to normal professional work contact.

1. After the plaintiff left Immigration, and before she started work at Veterans Affairs, the defendant telephoned her to say that their colleague was upset that he had been unable to come to her farewell lunch.  The defendant asked whether she would come to a lunch at a different restaurant so that the colleague could say goodbye.  She agreed to this.  The lunch was arranged for about the following Wednesday after her departure from Immigration, which would have been 8 November 2006.  She drove to the lunch.  The defendant and their colleague were there.  The plaintiff had bought a bottle of wine as a gift for the defendant, to thank him for being her project manager.  At the end of the lunch the colleague left and the plaintiff asked the defendant to come to her car so that she could give him the present.  They walked to the car.  The defendant refused to take the bottle of wine.  He said “You keep it and maybe we could share it sometime”.  The plaintiff said “That’s not going to happen”.

1. At the car the defendant pressed his body against the plaintiff and started to kiss her.  She was embarrassed.  She pushed him off and said that she would drive him back to work.  He suggested that they go back to her home.  She said that her father was there and they could not.  He then accepted the offer of a lift back to work.  As she started to drive, the defendant put his hands between her legs and “started playing around in my crotch area”.  She said that this made her excited, and she suggested that they go parking somewhere.  The defendant agreed.  They went to a secluded spot on Lake Ginninderra.  They removed their clothing.  The plaintiff moved into the passenger seat and the defendant to the floor on the passenger side.  There was no conversation.  They kissed and engaged in other sexual activity.  The plaintiff said that it was not the same as the previous week.  She found the defendant’s fingers inside her vagina painful.  The excitement that had been there the previous week was no longer there.  She felt bored and could not wait until the defendant stopped.  The car was a small one, a Mazda 3, and she said that the defendant had a bad back so that the activity was very uncomfortable for him.  They remained parked for twenty minutes at the most.  They then got dressed and she drove the defendant back to work.

1. The plaintiff said that she felt guilty that with her departure from Immigration the defendant no longer had a project to manage, and his employment was threatened.  She offered to help him find another job, including helping him with his CV and dealing with the selection criteria for jobs.  For that reason she kept in contact with the defendant by email.  This continued until January 2007 when the defendant obtained a position at the Child Support Agency.

1. Meanwhile, the plaintiff and the defendant had lunch together on one further occasion, in December 2006.  He telephoned her and suggested meeting for a Christmas lunch.  They drank wine during lunch.  The plaintiff was having renovations carried out at her house.  The defendant told her that he wanted to see what they looked like.  She did not want him going to her home.  She showed him photographs of the renovations on her laptop computer.  At the lunch he gave her a Christmas present, a box of bath salts.  After lunch he walked her to her car and kissed her, wishing her a happy Christmas.  She had an appointment and left.  She did not like being kissed in public but it was not a passionate kiss. 

1. In March 2007, the defendant rang the plaintiff asking her to meet him for coffee.  She agreed to this and they met at a coffee shop at Woden, near her then office.  The defendant told the plaintiff that he would like her to come and work for him at the Child Support Agency.  On this occasion there was no physical or sexual contact.  The plaintiff felt relieved about that.

1. In May 2007, the defendant asked the plaintiff to lunch to talk further about the prospect of her working at the Child Support Agency.  They met for lunch at a restaurant at Belconnen.

1. The plaintiff was at that time going through health problems.  She had been diagnosed with a tumour which required surgical removal.  She did not know whether or not it was malignant at that time.  It was removed in July 2007 and, fortunately for the plaintiff, turned out to be benign.  She was attracted to a move to employment located closer to home, and she was also attracted to working with someone she had worked with before.  They had lunch together and discussed the position.  The plaintiff told the defendant that if it came about, she was not going to sleep with him.  He replied that he did not just want her for her body but wanted her for her brains as well.  She replied that she did not want a relationship with him, and that he should have more respect for his current partner.  She was aware that by that time he was living with the woman he had been having an affair with the previous year.  During this lunch there was no physical or sexual contact, and again the plaintiff felt relieved.  She was asked by her counsel whether, having regard to what had happened previously, she was interested in him physically by that stage.  Her reply was that she had not been interested in him physically in the first place.  What she had been interested in was how he had made her feel.

1. She later applied for the job at the Child Support Agency and was offered the position.  She negotiated a release from her contract at Veterans Affairs, and started at the Child Support Agency on Monday 6 August 2007.  The defendant was her immediate superior, equivalent to EL2 in the Public Service, while she was equivalent to EL1, or assistant director.  Her understanding was that the defendant was her manager and had the power to hire and fire her.  He had conducted the interview, and she reported directly to him. 

1. There was one occasion in her first few days of the Child Support Agency when the defendant behaved, in her view, inappropriately.  She had sent him an email with a business report attachment.  He called out to her, in front of others, “Boy you give good oral”.  She understood this to be a response to her email.  A number of other staff around heard it and laughed.  The plaintiff was embarrassed, upset and angry with the defendant.  She told him not to say it and that she was embarrassed, but he repeated it a number of times.  She walked away because he would not stop.  He eventually did so.

1. A week before she had started at the Child Support Agency, the defendant had telephoned her and asked her whether she would be willing to accompany him to a conference on about 13 August.  She agreed to this.  After she started her new job, she was asked by the personal assistant to the branch manager about accommodation at the conference in Sydney.  She was asked, in front of a number of other people, whether she would be willing to share a two-bedroom apartment with the defendant.  She was very uncomfortable about this but it had been done before at the Child Support Agency, and the plaintiff did not want people to know that she was frightened about such a situation.  She clarified that there were separate bathrooms.  She would not have agreed if the arrangement had involved a shared bathroom.  She was assured that there were two bathrooms, and said that she did not mind that arrangement. 

1. It was led from the plaintiff that she had had counselling earlier in 2007 from her general practitioner, Dr Jenkins, and also from a counsellor, Natalie Dixon, to whom her doctor had referred her.  Her most recent counselling prior to August 2007 when she joined the Child Support Agency had been in April 2007, for depression. 

   
   

   In January 2007, she had been prescribed Effexor, an anti-depressant which she took for six weeks.  She said that by August 2007 she was not depressed.  Her condition in any event had not affected her work and had not resulted in her taking any time off work.  By August 2007, she was working full-time, sleeping normally, and was able to attend social functions.  Her concentration was excellent.  She had been attending adult programs in creative writing and psychic development.  She had bought a house at Macgregor and was looking after the house and garden.  She had a dog and two cats.  She often took the dog for a walk.  She was living otherwise alone at the house.

1. The conference in Sydney was scheduled for Tuesday and Wednesday, 14 and 15 August 2007.  The defendant suggested to the plaintiff that they travel to Sydney the day before to avoid problems with fog at Canberra Airport.  The plaintiff agreed to this.  It was part of the arrangement that they would pay for the Monday night’s accommodation in Sydney, with the Agency paying for the Tuesday night.  They were to return to Canberra on the Wednesday evening, following the end of the conference.

1. The plaintiff agreed to this.  She drove her own car to the airport.  She said that this was because she did not want to go with the defendant, and did not want him to know where she lived.  They travelled to Sydney on the same plane, at about 6:00 pm, sitting together.  They each had a glass of wine on the plane.  They caught a taxi together to the city.  They checked in at the Meriton World Tower and went up to the apartment.  One of the bedrooms had an ensuite bathroom.  The other did not, but there was a separate bathroom.  There was also a room which served as a living room and dining room, with an open kitchen, from which a corridor led to the bedrooms and bathroom.  They agreed which bedroom each was to occupy.  The plaintiff suggested that the defendant take the bedroom for which the bathroom had a bath.  She said she did not want the defendant to have any reason to come into her bathroom. 

1. The defendant suggested that they walk to Oxford Street, a relatively short distance from the apartment building.  The plaintiff had never been there before.  She had heard of Oxford Street and knew that it was notorious but she was not sure why.  Her evidence was that they left the apartment between 7:30 pm and 8:00 pm, and did not return until after midnight.  They went to a hotel where they each had two glasses of wine.  She needed to go to the toilet.  The defendant told her that the toilets at the hotel were unisex.  This was unsatisfactory to her and they went to a second hotel for that purpose.  At the second hotel the defendant had a further glass of wine but the plaintiff did not.

1. They then walked back towards their apartment.  On the way back the defendant suggested they go into an adult shop.  She said no, and reminded him about what she had said before agreeing to take the job at the Child Support Agency.  He replied “yes, I know, the answer is no”. 

1. By this time the plaintiff said that she was feeling a little intoxicated.  She agreed to go into the adult shop.  She said that she did not want to go back to the apartment with the defendant immediately.  She wanted to buy some time to get over the effects of the alcohol.  They went into three adult shops in all.  The defendant made a comment to the effect that he might buy some toys to take back to the apartment.  He suggested in one of the shops that they go into a viewing room at the back.  She declined. 

1. In the third adult shop, the defendant put his hands around her waist and down the back of her trousers, while she was looking at stock on a lower shelf.  She did not like this.  She brushed his hands away and told him not to do it. 

1. After the third adult shop, they stopped for coffee.  She said that they crossed the road and went into a coffee shop, Michel’s Patisserie, but staff there said they had turned off their coffee machine and suggested that the plaintiff and the defendant go to Gloria Jean’s, which they did.  It was about midnight by this time.  The plaintiff ordered a large takeaway coffee with sugar.  The defendant also got a coffee. 

1. They did not have anything to eat after arriving in Sydney.  They had last eaten on the plane, where the plaintiff recalled having a chicken roll.

1. They sat in the coffee shop for half an hour or so, drinking their coffee.  The plaintiff had not finished hers.  They walked back to the apartment, the plaintiff carrying her coffee.  It was a five or ten minute walk.  When they got to the apartment building the plaintiff told the defendant that she would stay downstairs and have a cigarette and finish her coffee.  She said that she did this because she did not want to go up to the apartment in the lift with him, because of her earlier experience in the lift at the Immigration Department.  She stayed downstairs for five or ten minutes, and the defendant went upstairs.  They each had their own card key to the apartment.  When she had finished her coffee and cigarette the plaintiff went up to the apartment.  She heard the shower in the ensuite.  She said that she quickly gathered her towel and pyjamas and went and had a shower herself.  She went into the bathroom and closed the door.  She undressed and got into the shower.  The shower recess had glass sides and a sliding door.  She did not think to lock the bathroom door.  She said that she had grown up in a household where a shut door was treated as a locked door and in her family they had not been allowed to lock doors. 

1. While she was in the shower the defendant came into her bathroom.  He was naked.  He asked her whether she needed a hand with the soap.  She told him to get out.  The plaintiff was naked in the shower and the defendant could see her through the glass.  She said that she was angry and shocked.  She could not believe that it had happened.  The defendant left.  The plaintiff finished her shower and got into her pyjamas.  She went to her bedroom.  As she walked past the door to the defendant’s bedroom she observed him lying naked on his side on the bed facing the door.  She went into her room and closed the door.  She turned off the light and went to bed.  She was tired.  Her usual habit was to go to bed at 10:00 pm, and it was after midnight.

1. A couple of minutes afterwards the defendant opened the plaintiff’s door and came into her bedroom.  She could see that he was naked.  He came in and climbed on to the bed from the foot end, and climbed on top of the plaintiff as she rolled onto her back to sit up.  She put her hands on his shoulders and told him to get out.  He said that he was not leaving until he got a good night kiss.  She told him that he was not getting one, and told him again to get out.  She said that she felt threatened and scared.  He said that he would not leave until he got a good night kiss – just one.  The plaintiff, accepting this, kissed him on the lips.  She said that she wanted him out of her room.  She then told him again to leave.  He refused to do so.  He said that the kiss was not good enough.  The plaintiff said that she was scared of the defendant and worried about the possibility of losing her job.  She just wanted him out of her room.  He said that he would not leave until he got a better kiss.  He kissed her again and put his tongue in her mouth.  The plaintiff said that she was pinned under his weight and could not hold him up.  The kissing went on for some minutes.  The defendant began to fondle the plaintiff’s breasts with his hand under her pyjama top, still kissing her.  She said that by then she felt resigned.  The defendant had not left as requested.  She was scared of him and scared of the consequences that it might have on her job if she did not submit to him.  He started kissing her breast.  Her pyjama top came up around her neck and over her mouth and she was finding it difficult to breathe.  She removed her pyjama top. 

1. The defendant started to fondle her vagina area, pushing her pyjama pants and underpants down as he did so.  They would not go further than her buttocks, which she lifted to allow them to come down further.  He moved them down around her ankles.  She said that the reason she moved her buttocks was that the pyjama pants were being stretched and the elastic was cutting into her.  Her pyjamas came off under the bed clothes.  She removed them with her feet.  The defendant pulled her legs apart and started fondling her genital area with his fingers and subsequently with his mouth. 

1. The plaintiff said that the next thing she noticed was feeling a stabbing pain going from her vagina through to her back.  The pain was excruciating, worse than when she had had appendicitis the previous year.  The pain would come and go, consistent with the defendant thrusting into her body.  She moved her hands to clench her pillow but otherwise did nothing.  She lay there and “waited for it to occur”.  As far as she could tell the defendant’s penis was inside her.  The pain went on for one to two minutes.  The defendant then finished and the plaintiff went to sleep.  There was no further conversation between them during the sexual activity.  Before they went to sleep the defendant said “That was crap.  I can do much better than that and I’ve got all night to practise”.  The plaintiff made no reply.

1. The defendant stayed in the plaintiff’s bed all night.  The plaintiff also stayed there.  She said that she was afraid of confrontation if she left the bed.  She did not want to answer questions.  She did not want the defendant to know how she felt.  She did not want him to know that she was afraid.  She did not want him to have that power. 

1. During the night on three or four occasions the defendant touched the plaintiff’s breasts and tried to initiate sexual activity again.  Each time the plaintiff rolled onto her side facing away from the defendant, and he discontinued. 

1. The plaintiff woke up at about 6:00 am.  The defendant was still in bed beside her.  She got out of bed, grabbed her pyjamas and went to the bathroom.  She sat on the toilet.  She felt violated, and had pain in the vagina area.  She looked down and saw that she had blood on her legs.  She did not know what to do.  She wanted to leave Sydney but she could not leave because she did not want anyone to know what had happened.  She did not want to tell anyone.  She felt that her life had come to an end.  She realised that if she left Sydney without going to the conference she would have to tell people what had happened.  She was ashamed and embarrassed to talk about those things. 

1. She went and had a shower.  She said that she just wanted to wash the whole incident away.  The bleeding continued, until after midday.  She was aware that this was not her usual menstruation, which had finished a week earlier.  She got dressed in the bathroom.  She went back to her bedroom.  The defendant had left the room and she could hear his shower running.  She observed that the bed was covered in blood.  She pulled the covers up over the bed clothes.  She was disgusted to see the condition of the bed.  It made her feel dirty and violated.  She did not want to look at it.

1. The defendant told her that he was going out to get something for breakfast.  He asked if he could get something for her.  She declined.  He went out, and came back with coffee and a Danish pastry for each of them.  She ate half of the pastry and drank the coffee.  She did not say anything to the defendant about the night.  She said that she did not want him to know how she felt and did not want a confrontation.

1. They left the apartment and walked to the conference at Darling Harbour.  She said that she did not want to be near the defendant during the conference.  She suggested that they attend separate sessions, which they did. 

1. The plaintiff left her session before lunch early and walked back to the apartment.  She wanted to make sure that the cleaning staff had removed the sheets.  Her bleeding continued during the morning.  She went a number of times to the toilet and used toilet paper to mop it up. 

1. When she got back to the apartment she saw that the cleaner had not been into the room.  The sheets were still there.  She took them off the bed and put them in the washing machine, which she turned on.  She made the bed using a doona cover.  She went back to the conference at lunchtime. 

1. During lunch the defendant spoke to her.  He told her that he was tired and was going back to the apartment.  He asked her if she wanted to go.  She said that she intended to stay at the conference for the afternoon sessions.  The defendant said that he would return for cocktails at the conference in the evening. 

1. The plaintiff next saw the defendant at the cocktail party.  He told her that when he had returned to the apartment the washing machine was on.  She said nothing in reply.  He asked her whether she wanted a drink and she declined.  They stayed at the party for about half an hour and then walked back to the apartment together. 

1. He suggested that they go out for a meal at Kings Cross.  She agreed.  Her evidence was that she did not want to be in the apartment with him and felt safer in a public place.  They caught a train to Kings Cross.

1. The plaintiff said that she had only orange juice at the cocktail party.  She observed that the defendant was drinking red wine.  He had another glass of wine at dinner, and bought a bottle of red wine to take back to the apartment.  He asked the plaintiff whether she was angry with him.  She said that she wasn’t but that she was angry with herself.  Her evidence was that she had been angry with herself because she had not stood up for herself the night before.

1. They returned to the apartment.  The defendant suggested that they watch a movie.  He said that he had brought a film, The Bourne Identity, and a pornographic video.  She said that she would watch The Bourne Identity.  They began to watch it but the plaintiff fell asleep within five to ten minutes.  Her next memory was of the defendant waking her and telling her that she should go to bed.  He had poured her a glass of wine but she did not drink it.  She went to bed.

1. The plaintiff and the defendant attended the conference again the next day, returning to Canberra by plane during the afternoon.  The defendant took an earlier flight and the plaintiff a later flight, apparently because of her luggage.

1. When she got back to Canberra she went home.  She was feeling upset about what had happened in Sydney.  She did not know how she was going to deal with it.  She started practising blocking it out of her head so that she could behave normally at work the next day.  She tried to convince herself that it had been just a physical act and should not mean anything, but she said that it meant everything to her.  She was upset and frightened.  She rang her counsellor, Natalie Dixon.  Ms Dixon advised her to go to the Canberra Rape Crisis Centre, but she did not follow the advice because she did not want anyone knowing what had happened.  She said that she did not like people knowing her business.

1. Ms Dixon moved to Tasmania at the beginning of 2008.  The plaintiff had tried to contact her but had not succeeded in tracking her down.

1. On her first day back in Canberra, which would have been Thursday 16 August 2007, the plaintiff went back to work.  The defendant was in the bay next to her.  She realised that she could not put the incident out of her mind as she had proposed.  She did not want to be there.  She spoke to a male colleague and told him that she did not think she would be with the agency for much longer.  He asked her whether something had happened in Sydney.  She said that something had happened, and that “no doesn’t mean no”. 

1. The plaintiff kept working that day, but she had to go into a meeting with the defendant at one point and felt physically ill.  She said that his smell made her nauseous. 

1. The plaintiff did not go to work on the Friday.  She rang to say that she was sick.  She did not ever return to work at the Child Support Agency after that.  She did not say anything to her superiors at the agency about what had happened.  She said that she was embarrassed.  She did not want people to know what had happened.  She did not want to have to explain that she had still been a virgin. 

1. Over that weekend the plaintiff said she knew that she was not going back to work.  She did not know what she was going to do.  She felt as though she had lost her entire life.  She began planning to kill herself.  She started to write a suicide note.  She had not completed this by early on Monday morning, when she began to receive telephone calls on her mobile phone from the defendant.  She did not answer the calls.  She decided not to talk to anyone.  She continued with her suicide note.  At about 10:00 am there was a knock at her door.  She thought that it was the defendant.  She ended up in the corner of her kitchen shaking with a knife.  She did not go to the door.  At that point she rang Ms Dixon who came to her house, and they went together to the Canberra Rape Crisis Centre.  At the centre she was referred to a unit at the Canberra Hospital for tests as to whether she might have contracted a sexually transmitted disease.  She went through this process and the results were clear.

1. While the plaintiff was at the Rape Crisis Centre, a work colleague apparently contacted the police and reported that she had not been at work and was not answering telephone calls.  The police went to her house and broke in.  They telephoned her parents in Victoria to say that she was missing.  They left a card in her house.  Her parents came to Canberra to look after her.  Her mother contacted the police officer who had broken into the house and said that the plaintiff wanted to report the incident.  Until then the plaintiff had no intention of making a report to the police, but by then she took the view that it had become to some extent public.  The Canberra police said that because the incident had happened in New South Wales she would need to report it to the police in that State.  The plaintiff and her mother went to the Queanbeyan Police Station to make a report.  Queanbeyan police took a record of the plaintiff’s complaint, and passed it on to police in Sydney.  The plaintiff was unaware of this until she received a telephone call on about 27 September from a police officer in Sydney, asking her to travel to Sydney to make a formal report.  She made a statement.  Her interview with police took from 9:00 am until 4:00 pm on the day.  She told the police that she did not want the matter taken further. 

1. The plaintiff was asked in evidence why, having decided not to pursue criminal proceedings, she had decided to bring the present action.  She explained that she had made that decision when she became aware that the defendant had told an investigator for her workers’ compensation insurer that she had consented to the sexual activity in Sydney.  The insurer had by that time made payments of workers’ compensation to the plaintiff, and met treatment expenses for her, but decided to refuse the claim in relation to any future benefits.  The plaintiff assumed that this was because the defendant had said that she had consented to the sexual activity.  I suspect that her understanding in that regard was incorrect, but I accept that she believed that this was the reason.  The plaintiff’s evidence was that the defendant’s assertion of consent impugned her integrity as a person.  She had wanted to keep the whole incident private but had decided to sacrifice her privacy for her integrity.

1. The plaintiff said that she had not had any intention of claiming workers’ compensation but Ms Dixon had organised it on her behalf. 

1. The plaintiff said that as a result of the assault she had suffered, and continued at the time of the trial to suffer, depression, anxiety, panic attacks, flashbacks and nightmares.  She had suicidal thoughts.  She had had to rely on anti-depressant medication and sleeping medication.  She had had treatment from psychiatrists.

1. In May 2008, she intended to commit suicide but this was averted by a crisis assessment team who were in constant contact with her.

1. In January 2009, she attempted to commit suicide by taking an overdose of prescribed medication.  She was by this time working at FaCHSIA.  There had been a restructure.  She felt that she was being criticised negatively for her work and her adequacy generally.  She decided to kill herself.  She researched the method on the internet, and organised for a delayed email to be sent to her psychologist.  The psychologist, Dr Janine Mahoney, received the email and contacted the police who attended her house.  She had left the front door unlocked so that it would not be necessary for them to break in as they had previously.  The police organised for an ambulance to take the plaintiff to Calvary Hospital.  She was unconscious at the time.  She was in the Intensive Care Unit overnight and thereafter spent six weeks as a voluntary patient in the psychiatric ward at the hospital.  She had been told that if she did not agree to this she would be committed as an involuntary patient.

1. In June 2009, she was indeed admitted as an involuntary patient to the Canberra Hospital Psychiatric Unit.  She had been at the unit and had run away, bought a knife at a supermarket, and some alcohol and aspirins.  She intended to kill herself.  She hid behind some trees and cut her left wrist.  Police located her through some technology involving the position of her mobile phone.  They organised an ambulance and she was taken to the Psychiatric Unit.  She was admitted to the high dependency wing involuntarily. 

1. In August 2009, the plaintiff was admitted as a voluntary patient to Hyson Green, a private psychiatric unit at Calvary Hospital.  She was admitted at her own request because she wanted to get better and work towards a recovery.  She wanted to become non-suicidal, in her words, and to move on with her life.  In September 2009, she tried to go back to work at FaCHSIA but this was unsuccessful and she was again admitted in September to Hyson Green, spending some two weeks there. 

1. In February 2010, the plaintiff was again admitted to Hyson Green voluntarily, because of suicidal thoughts.

1. The plaintiff said that since the assault she had decided not to work as a consultant in Commonwealth agencies, but to work as a public servant.  She needed to know who else would be working at the agencies where she worked, and to ensure that she was never again rostered to work at the same place as the defendant.

1. She had not since then had an internal medical examination and would not do so in the future, as she put it, to save her life.  This extended to Pap smears.  She was unable to take her dog for a walk, because she became anxious when she got about twenty metres from her house.  She did not like being away from home and did not even like being in her front garden where she could be seen.  She no longer trusted people.

1. By the time of trial the plaintiff was continuing to see her psychologist, Dr Mahoney, once a fortnight but had recently ceased seeing her psychiatrist.

1. The plaintiff was rigorously cross-examined by senior counsel for the defendant.  The cross-examination extended over a period of six hours.  She was cross-examined extensively about the police statements.  She generally agreed that their contents were true but said that she had not read the Sydney statement carefully before she signed it.

1. It was put to her that she had told a number of doctors that the incident at the apartment in Sydney was the first time she had had sexual contact.  She did not accept this, but she said that she had told doctors it was the first time she had had sex, but which she had meant sexual intercourse.

1. The plaintiff agreed that she had kept the vibrator the defendant gave her for a time, and that she had used it.  She said that she kept it for about a month.

1. She agreed that by the time of the conference in Sydney the defendant had no idea that she was a virgin.

1. Senior counsel for the defendant put to the plaintiff that she had been diagnosed as suffering from Asperger’s Syndrome.  She agreed that one of her treating doctors, the psychiatrist Dr Fridgant, had expressed that opinion but she did not accept it.  She had subsequently been tested by a psychologist, Dr Tonkin, who had concluded that the diagnosis was incorrect and that she did not suffer from that condition.

1. It was put to her that her relationship with her parents was dysfunctional.  She accepted that this word had been used by Dr Fridgant but again she did not accept it.  She referred to difficulties in her relationship with her mother.  She said that her mother was very supportive but could be controlling and sometimes used emotional blackmail.  She said that her parents used to fight and argue a lot when she was growing up.

1. Counsel for the defendant generally put his client’s version, in considerable detail, to the plaintiff.  She adhered to her evidence in chief, and rejected the defendant’s version where it was inconsistent with hers.  She was also cross-examined about the contents of the police reports and statements, her claim form for workers’ compensation, and medical records.  She made no concessions of significance which might have given rise to an inconsistency with her evidence in chief.

The defendant’s evidence

1. The defendant gave evidence that he first met the plaintiff in August 2005.  He was a program manager, and one of his project managers had recruited the plaintiff to undertake a pilot setting up servers for a trial of particular computer technology for the Immigration Department.  Once the plaintiff started work there, he saw her daily.  He described their relationship as just a professional working relationship.  She was very professional and her work was excellent.  As time went on the relationship developed into a friendship and then a more personal relationship.  They talked to each other about intimate details of their lives, but did not see anything of each other outside work.

1. The defendant said that towards the end of 2006 the relationship became physical and intimate.  He said that this happened gradually.  They moved from talking about their lives and what they were doing to flirting.  He said that the plaintiff started touching him and the physical relationship gradually developed.  He agreed that it was likely that he had made a comment about her “arse” on the stairs.  By the end of 2006, he was addressing her in such terms as “hello beautiful” and “gorgeous”.  He used these terms orally and also in text messages and emails.

1. He agreed that he kept a small baseball bat at his workplace, which he used as a prop.  He also had a set of juggling balls.  The baseball bat, he said, was “basically to encourage good attitude, and many people in the office would pick it up when they were frustrated”.  He denied putting Vaseline on the baseball bat or putting it on the plaintiff’s keyboard, and said that she had never mentioned such an incident to him.

1. He said that they shared details about what his children were doing, his divorce, and other intimate information about their lives and families.  He gave her details about his habits, including his experience going to a nudist colony. 

1. He said that before the day of the visit to Fyshwick there had been physical contact between them, which he described as flirting and rubbing breasts while sitting together.  He agreed that he had given her a vibrator.  He said they had been talking about vibrators the previous evening, and he went and bought one and gave it to her at his desk in the morning.  He said that she was quite happy and she put it in her handbag.  She was quite coy, and pleased with it.  She told him that she wanted to go to the sex stores to see where he had got it.  She told him subsequently that she had used the vibrator.

1. On the day he gave her the vibrator, he and the plaintiff went in his car to Fyshwick where they went to the Spice of Life shop.  The plaintiff told him that she had not been to a sex shop, and wanted to get over her fear about it.  It was in this context that he offered to take her and show her what was there.  They walked about the shop looking at the stock.  He took down some handcuffs.  He said that they flirted and touched.  They were basically flirting the whole time.  He was touching her on her thighs and slipping his fingers down the back of her pants.

1. They then went to another sex shop in Fyshwick where the plaintiff bought a pornographic DVD.  She subsequently told him that she had watched it. 

1. They left Fyshwick and drove to the Canberra Centre where they had lunch at a restaurant.  They shared a bottle of red wine, drinking about half of the bottle each.  He then drove her back to work.  When they were back at his desk, he asked to see her mobile phone so that he could send her a photo.  She put in a pass code, and he sent the photograph of his erect penis.  He could not recall her saying anything after she saw the photo.  He said that she was just coy.

1. Immediately after this, they got into the lift to go downstairs for a coffee.  They kissed and cuddled in the lift.  They did not make it to the coffee shop.  They went into a meeting room on the ground floor.  He opened the door and the plaintiff went in.  He followed her.  It was dark.  The room was furnished with a boardroom table and meeting chairs.  He closed the door.  He said that they “started making out, kissing, touching”.  They slipped off her trousers and pants.  She sat up on the boardroom table.  He got down between her legs and stimulated her clitoris and vagina.  She was leaning back and enjoying it.  He said that after a while “she asked me to put it in”.  He understood that she wanted him to insert his penis in her vagina.  At the time of the request they had been in the room for fifteen or twenty minutes.  He said that the request acted for him as a reality check.  He said no, that he thought they would be too loud.  They put their clothes back on and went back upstairs.  They did not have coffee.  Soon afterwards they packed up and went home.

1. The defendant said that he saw the plaintiff again the following week, during her first week after she ceased to work with him.  They had remained in contact during the intervening days by email and telephone, primarily instigated by the defendant.  They arranged to have lunch with a colleague who had been unable to have lunch when she left.  The plaintiff had brought him a bottle of wine as a present.  His recollection was that the three of them had two bottles of wine with lunch.  The defendant had walked to the restaurant from his office.  The plaintiff had driven her car.  The colleague left a little earlier.  He and the plaintiff walked back to her car where they kissed.  She offered to drive him back to work.  When they got into the car he touched her on the leg and genital area, and she suggested that they go parking.  He was happy with this idea.  They drove to an area next to Lake Ginninderra and “proceeded to make out”.  Over time they slowly took each other’s clothes off.  They were both naked.  The plaintiff, he said, was on the passenger seat, with the seat laid back, with her legs spread and feet on the dashboard and he was between her legs.  He said they “were doing everything from oral to – then tried to put my penis in”.  This attempt was unsuccessful.  The plaintiff touched and fondled his penis and squeezed it trying to get it into her vagina without success.  His estimate was that they were parked in that position for about three hours.  They used a number of positions in the course of their sexual activity.  There was not much conversation during this period.  By the end of the time he was on his knees on the passenger side of the car and his back, he said, was killing him.  They put their clothes back on and the plaintiff drove him back to work.  It was then 5:00 pm and he went home without doing any further work on that day. 

1. A week or two later the defendant sent the plaintiff an email attaching his CV.  Further email communication followed.  This continued until about the middle of December when the defendant invited the plaintiff for lunch at a different restaurant.  He had bought her a Christmas present, a basket of bath goods.  The plaintiff brought her laptop computer with photographs showing renovations she had been carrying out to her house.  They had a glass of wine with lunch, and they kissed on departure. 

1. The next occasion the defendant saw the plaintiff was in March 2007 at Woden Plaza.  They had been in contact by telephone and email since December.  They talked about work.  There was no physical contact.

1. In May 2007, the plaintiff and the defendant had lunch at a pizza restaurant in Belconnen.  By then the defendant was working at the Child Support Agency.  He was keen to have the plaintiff recruited to work there with him.  They talked about this job during lunch.  He had a glass of wine but the plaintiff did not.  She showed keen interest in the position.

1. She was subsequently interviewed by a panel consisting of the defendant and a Mr Davis.  There were two applicants and the plaintiff was successful.

1. A couple of weeks before the plaintiff was due to start her new job, he received a brochure about a conference in Sydney relevant to their work.  He discussed the conference with his superior, who approved of their attendance, the defendant going to the management streams and the plaintiff to the technical streams.  He contacted the plaintiff and informed her that they would be attending the conference about a week after she started the new job. 

1. He said that the travel arrangements were booked by his superior’s executive assistant, and that he played no role in that process. 

1. He said that when the plaintiff arrived at the Child Support Agency he was her boss but he had no authority to dismiss her.  That authority resided in his superior, a Mr Brooks who was a Senior Executive Service Officer at the agency.  The defendant’s position was supervisor of the IT team as a contractor.  There were ten to fifteen people in the team, including people the plaintiff had worked with in other departments. 

1. The plaintiff and the defendant went to Sydney the night before the conference.  It was his idea to go up early, to avoid having to get up at 4:00 am to catch a 6:00 am flight to Sydney the next morning.  The plaintiff was happy to go along with this.  The first night’s accommodation was to be at their own expense.

1. The defendant disagreed with the plaintiff’s evidence about the configuration of the apartment where they stayed.  The plaintiff had drawn a pencil diagram from memory.  The defendant went to the website for the hotel on the internet and printed off a floor plan which was similar to his recollection of the configuration of the apartment where they stayed, although it was not identical.  He could not remember the floor number or room number of the apartment they had stayed in but his understanding was that the configuration of the apartments would be the same on each floor.

1. It is quite possible that the plaintiff’s recollection, giving her evidence four years after the event, was to some extent inaccurate as to the precise plan of the apartment.  It is also possible that the defendant’s recollection was unreliable.  The differences were, in any event, inconsequential, in my opinion, as to my task in this action.

1. The defendant said that he and the plaintiff flew to Sydney on a Qantas flight at about 5:00 pm.  Each of them had a glass of red wine on the plane.  He could not recall whether the plaintiff had anything to eat.  He did not eat.  They caught a taxi from the airport to the hotel where they checked in after 6:00 pm.  They went to the apartment and changed, they then walked to and along Oxford Street.  He recalled a conversation with the plaintiff, which he said was about making sure that they kept their relationship professional, and said that this was mutually agreed.  

1. They went to the Stonewall Hotel where, he said, they spent three hours and drank at least four, probably six and perhaps more glasses of red wine.  They had nothing to eat.  He said that the plaintiff was complaining about her legs being sore, and he started rubbing them.  They moved in closer, “knee to crotch”, and the defendant continued to rub her legs as they talked and drank.  They also kissed while at the hotel. 

1. After that they got up and went across the road to another nightclub where they had another glass of red wine.  The defendant said that by this stage he was considerably intoxicated and the plaintiff was much the same.

1. They then went across the road to a sex shop.  The defendant said that they flirted, touched, and looked at the stock.  They then went to another sex shop with a large range of vibrators.  They discussed the difference in price between Sydney and Canberra.  They touched and rubbed each other, and the defendant put his hands down the plaintiff’s pants.  They then walked back to the apartment. It was about midnight.  When they got there the plaintiff wanted to have a cigarette, and the defendant left her outside as he went upstairs.  He had a shower.  He heard the plaintiff come in the front door of the apartment.  He went into her bathroom, opened the shower door and offered to soap her back.  They were both naked.  He said that the plaintiff was coy and said “no thanks”.  He gave her a kiss and left the bathroom.

1. The defendant finished shaving and put on a pair of black boxer shorts.  By this time the plaintiff was in her bedroom.  The defendant said the door was slightly ajar, and he pushed it open.  The light was off and it was dark in the room.  He sat on the edge of the bed and talked, touched her legs and asked for a goodnight kiss.  They started kissing and became passionate.  They slowly took each other’s clothes off.  He removed her pyjama top and she slipped her pyjama pants off.  They kissed and fondled.  His evidence was that the plaintiff fondled his penis, kissed his body and sucked his penis.  They spent a long time in the sixty-nine position with the plaintiff sitting on his face as he lay under her on his back and she sucked his penis.  He said that during the course of their lovemaking in different positions the plaintiff had an orgasm.  He said that the plaintiff squeezed the base of his penis in an attempt to harden it, and tried to insert it into her vagina.  He was only semi-erect, which he attributed to his level of intoxication.  He said that the plaintiff was equally intoxicated.  The lovemaking continued for about an hour.

1. He spent the night in the bed, and got up at 6:00 in the morning.  He was the first up, and realised in the bathroom that he was covered in blood from head to toe.  He had not been aware of this during the night.  He then went back to bed.  A little later the plaintiff got up.  The defendant then got up and had a shower, and went to McDonalds to get coffee and Danish pastries for breakfast.  They had breakfast together.  By the time he returned with the breakfast the plaintiff was dressed.  He was worried about the blood and the fact that they had broken their agreement not to have a sexual relationship.  He asked the plaintiff “if we were all good”.  She responded affirmatively. 

1. They then walked to the conference at Darling Harbour where they attended different sessions during the day.  He saw the plaintiff, by arrangement, at morning tea, lunch and afternoon tea.  There was a cocktail party at the end of the first day of the conference.  The defendant said that he did not go back to the apartment during the day, before the cocktail party.  He was with the plaintiff at the cocktail party.  He drank red wine.  He could not remember whether the plaintiff had any alcohol. 

1. After the cocktail party they went by train to Kings Cross.  The defendant could not remember whether they went back to the apartment first.  They went to a restaurant called the Bourbon where they had chips.  He drank red wine.  As far as he could recall, the plaintiff did not drink.  They then caught the train back to the apartment where they watched a movie, The Bourne Identity.  There was no physical contact between them.  The plaintiff fell asleep during the movie.  The defendant went to bed at about 10:30 pm in his own room.  Nothing happened between the plaintiff and the defendant during that second night at the apartment.

1. The next morning the defendant went and got breakfast again.  They went to the conference together.  They had morning tea, lunch and afternoon tea together, and then caught a hire car to the airport.  The defendant was able to get an earlier flight, and did so.  The plaintiff returned on a later flight.  As they parted at the airport they kissed goodbye and the plaintiff reminded him to make sure he got half of the money from her when they got back to work.

1. When he got back to Canberra, the defendant went home.  He went to work the next day, a Thursday.  The plaintiff was there.  She was friendly and their relationship was professional during that day.  They had some work contact but no physical contact on that day.

1. There was an arrangement that once a month the defendant’s team would provide morning tea for the branch.  This was to take place the next day, the Friday of that week.  When the defendant got to work he found a cake on his desk with a note from the plaintiff saying that she had a headache.  She had clearly been in earlier but had gone.  She did not come back to work during that day.  The defendant sent her a text message, to make sure she was all right, but received no response.

1. There was no contact between them during the weekend.  On the following Monday the plaintiff was not at work.  The defendant sent her a text message and tried to ring her, again without response.  He became worried about her health.  On the next day, the Tuesday, he was becoming increasingly worried.  He obtained her address from her recruitment company, and between them they had the police go to her home to make sure that she was all right.  The defendant went to the house himself, with another staff member.  They saw a car in the driveway and movement through the window so they knew that the plaintiff was all right, and did not go into the house.  The defendant sent the plaintiff another text message but again received no reply, and by the time of trial had had no further contact with the plaintiff.

1. The defendant said that on 11 March 2011 he was at a lunch with work colleagues at the Canberra Labour Club in Civic.  He saw the plaintiff at another table with a group of people.  As far as he knew the plaintiff did not see him on that occasion.

1. After a break during which I infer a conference with senior counsel took place, the defendant continued his evidence in chief.  He said that after he fell asleep in the first night at the apartment in Sydney, the plaintiff woke him about an hour and a half later “for another round of sex”.  He said that he was spent.  He penis was flaccid.  They attempted intercourse but without success and he “basically spent the entire time orally servicing her”. 

1. At the first hotel in Oxford Street, the defendant said that he and the plaintiff discussed the team and problems at the Child Support Agency.  The plaintiff told him that she was worried about working with a particular man she described as an alpha male, a strong personality.  She was not sure she could keep going with the job.  The defendant reassured her that he would support her and they would work through the problem.  He made it clear that he needed the plaintiff to remain with the team because of her technical skills. 

1. Until the defendant became aware of documents produced during preparation for the hearing, he had no idea that the plaintiff had any problems with depression.

1. The defendant was cross-examined about a question-and-answer statement he had made and signed with Mr Egar, an investigator instructed by the plaintiff’s workers’ compensation insurer.  I shall return to that statement.  Counsel for the plaintiff put to the defendant a number of apparent inconsistencies between the statement and his oral evidence.  A number of assertions in the statement about the plaintiff’s behaviour had not been put to her in cross-examination.  The defendant nevertheless maintained that the assertions in the statement were true.

1. Counsel for the plaintiff put to the defendant “you now admit to penetrative genital to genital sex on that evening, don’t you?”  The defendant’s answer was yes.

1. The defendant subsequently said that at the end of the first period of lovemaking on the plaintiff’s bed, he had an orgasm, after which they both went to sleep.

1. In re-examination, the defendant was asked how many orgasms he could recall the plaintiff having during the evening in question.  His answer was three major ones, with the proviso that it was sometimes hard to tell. 

1. He said that at no time during the course of the evening did the plaintiff say no.  If she had done so he would have accepted it, gone back to his room and gone to sleep.

The documentary material

1. On Friday 10 August 2007, at the end of the week prior to the conference in Sydney, the plaintiff sent an email to a friend, Pauline Appleby, a work colleague at the Department of Veterans Affairs.  The email included the following:

Well I’ve just finished my first week here and it’s certainly a baptism of fire.  Spent the first couple of days wondering what I’ve got myself into.  No more technical hands on work for me for the next year.  A difficult situation for me to handle but instead I get to organise.  I have to admit I’m quite comfortable at organising but not sure if this is what I want to do for the rest of my life.  Anyway I’ll give it a year and probably try for a consulting position elsewhere   .   .   .   My team’s good.  Yes they’re all males and really thankful that I’m here to do the documentation and organisation for them   .   .   .   typical.  We’ll all get along really well and act as a team, except for maybe one person who was the team leader before me.  He still wants to organise everyone, so I’m expecting conflict there. 

I go to Sydney Monday night for that conference I told you about.  It’s just me and my director.  I was asked in front of everyone, by the person organising the accommodation, if I had any objections to sharing a two bedroom/two bathroom apartment.  What was I meant to say, I said no, so long as they had locks on the bedroom doors.  I handed a business case to my director for review and his reply (in front of everyone) “boy you give good oral”.  I challenged him on the comment and said he couldn’t say it and certainly not in front of everyone as it was offensive.  This is going to be a very long year in this respect.  Sydney will be interesting.

1. On 13 August 2007, a month after the conference in Sydney, the plaintiff attended Queanbeyan Police Station.  Senior Constable Lauren Johnstone made an entry in police records, from which I shall quote selectively:

The victim in this matter is a 38 year old female who until this incident was a virgin.  She is extremely traumatised by the incident and seeking assistance for this.  The victim does not want the matter investigated, however is happy at this time to have a report generated.  The victim and POI have known each other on a professional basis for approximately two years.  During that time a friendship has developed.  The POI is divorced and resides somewhere in Canberra with a girlfriend.  During the course of the friendship the POI has touched the victim and caused her to feel uncomfortable.  Once when intoxicated the victim and POI have in the words of the victim acted “inappropriately”.  When questioned about this she stated they kissed passionately, before she stopped, leaving the area.  The POI and victim had cause to attend Sydney for a conference.  The victim was apprehensive about this however wishing to remain professional has agreed to attend.  The arrangements were made by Child Support Agency for both to attend the conference.  However, the accommodation was a serviced apartment with two bedrooms and two bathrooms.  Again the victim was not comfortable however agreed to this wishing to appear professional.  On 13 August 2007 the victim and POI attended Sydney via airplane from Canberra.  They arrived approximately 1930.  Entered the room and left their luggage before going to dinner.  At dinner the victim consumed one glass of red wine.  After this the victim told the POI that she would not be having any more.  The POI paid no attention to this and continued to purchase red wine for the victim.  By the time the victim returned to the serviced apartment she felt very intoxicated.  The victim does not usually drink alcohol.  Upon realising her level of intoxication the victim has gone to the bathroom to shower in an attempt to sober up.  While in the shower the POI has entered bathroom naked, offering to wash her.  This was refused and the POI left the room.  The victim has left the bathroom dressed in her pyjamas.  As she walked past the bedroom occupied by the POI she saw him laying on the bed naked.  The victim entered her bedroom and closed the door, the POI has entered the room forced her on the bed and had penile vaginal intercourse with the victim.  The victim was asking him to stop but was also very out of control due to her level of intoxication.  The victim felt significant pain as the POI penetrated her.  As previously stated the victim was a virgin prior to the assault.  After the assault the POI said “that was terrible, I can do better than that.  It’s alright I can practice all night”.  After this comment the victim fell asleep.  Whenever the victim woke during the night the POI would attempt further intercourse, however the victim avoided this.  The next morning when the victim went to the bathroom she found she was bleeding.  Upon checking the bed where she had been sleeping the victim described the bed as if someone had been murdered there, due to the amount of blood.  The victim has sought help from medical professionals and Rape Crisis Centre.  She is also off on sick leave, with no intention of returning to the office.  When questioned about her safety from the POI she felt that he believed he had done no wrong and in the short term would not contact her, however she believed that he would contact her again and cause trouble.  The victim has changed her phone number so that the POI is not able to contact her.  Police contacted the POI and informed him that a complaint had been made in relation to an incident in Sydney last week.  It was requested that the POI not contact the victim under any circumstances or police would consider taking out Apprehended Violence Orders to assist in victim protection.  At this time there is no further investigation required.  Nil crime scene, nil medical evidence, nil action at request of victim.  Duty officer and detectives notified.

1. She said that since the assault the plaintiff’s condition had been exacerbated by workplace factors, including a restructure at FaHCSIA during 2008, and negative and insensitive comments made by a superior.  This had had devastating consequences for her and had led to a suicide attempt.  She had several months off work.  She remained very sensitive to perceived criticism, and had difficulty coping with conflict or displays of anger in the workplace.

1. Dr Mahoney thought that the plaintiff’s prognosis was guarded.  She would remain vulnerable to future workplace stress and difficulties in relationships, especially with men.  It was unlikely that she would ever be completely free of symptoms.  She would in Dr Mahoney’s opinion require psychological support for the foreseeable future.  She was seeing the plaintiff at that time once a fortnight.  She thought it possible that in the future the plaintiff’s needs might be met by monthly treatment sessions, but depending upon other triggers (including a negative outcome to the present litigation) she might require more frequent treatment than once a fortnight.

1. Dr Mahoney gave oral evidence.  By the time of trial she was still seeing the plaintiff once a fortnight and thought that this would continue indefinitely.  The plaintiff was working as a public servant, and Dr Mahoney thought that this was a productive form of distraction for her.  She would not be capable of resuming work as an independent IT contractor in the Public Service, which would be too unpredictable for her. 

1. Dr Mahoney was cross-examined extensively by senior counsel for the defendant, but adhered to the opinions she had expressed in her reports and in chief.  Senior counsel for the defendant put to her that she was biased in the plaintiff’s favour and an advocate for the plaintiff.  I did not form that view, although I recognise that as the plaintiff’s treating psychologist she had, at the time she gave evidence, a continuing professional relationship with the plaintiff.  I found Dr Mahoney a convincing witness in her field of clinical psychology.  As I have previously mentioned, no expert evidence was called in the defendant’s case so that there is no contrary expert psychological opinion before the court. 

1. Dr Saboisky, psychiatrist, saw the plaintiff on referral from her general practitioner, to whom he reported in December 2007.  He noted in the report that the plaintiff had had significant pre-existing psychological problems before the assault.  She had worked obsessively to the exclusion of other facets of her life.  She was very perfectionist, self-critical and socially avoidant.  She had always been phobic about allowing herself to become vulnerable.  Against that background a traumatic event had catapulted her into a state of a major depression and significant suicidal ideation.  Her general mistrust and containment of affect had made it difficult for her to deal with the trauma and to return to work.

1. Dr Saboisky had found it difficult to develop a good rapport with the plaintiff.  In his view she was seriously depressed and a high suicide risk.  Dr Saboisky thought of “certifying her to the Canberra Hospital” which I take it meant arranging her admission involuntarily to the psychiatric ward.  He decided not to proceed with this, thinking that it would be counter-productive and anti-therapeutic.

1. Dr Saboisky gave oral evidence that he had last seen the plaintiff in August 2009 as an inpatient at Hyson Green.  She had taken a serious overdose and was under the care of Dr DiBella, a psychiatrist employed by the hospital.  His diagnosis was that the plaintiff was suffering from chronic depression.

1. It became apparent in cross-examination that Dr Saboisky had not been given a complete history by the plaintiff as to her relationship with the defendant prior to the conference in Sydney.  Senior counsel for the defendant put various assumptions to Dr Saboisky based upon the evidence as to the previous sexual activity between the parties.  Dr Saboisky said that if this were accepted it would raise issues as to the plaintiff’s credibility but that he was not in a position to test it. 

1. Dr Saboisky had had only a minor involvement in the plaintiff’s care and had not been asked to prepare a medico-legal report.  He had not seen her for some two years before trial.  His evidence was therefore not of great assistance to me. 

1. Dr Lev Fridgant, psychiatrist, first saw the plaintiff in January 2009 following her attempted suicide.  He provided a report to Comcare, in which he answered a number of questions relevant to the plaintiff’s claim for workers’ compensation arising out of workplace issues late in 2008.  She was suffering from severe depressive symptoms.  Dr Fridgant made a diagnosis of major depressive disorder with depressed mood.  He had a history of the alleged sexual assault by the defendant and also of the workplace incidents in 2008.  He came to the view that she had probably been suffering from Asperger’s syndrome since childhood.  He thought it likely that the plaintiff’s illness in 2009 was closely related to her capacity to deal with emotional matters as well as traumas, as a result of her Asperger’s syndrome.  In his view her then condition had been caused to a substantial degree by the sexual assault.  The current condition supervened the earlier putative diagnosis of Asperger’s.  It was relevant that she had had, and continued to have, a significantly dysfunctional relationship with her parents, which meant that family support was not helpful, but rather added a further complication.  He recommended that an assessment be carried out to confirm or exclude the putative diagnosis of Asperger’s syndrome, and that she continue with medication for depression.

1. Senior counsel for the defendant cross-examined Dr Fridgant, putting to him that bullying and harassment at work during 2008 had been completely responsible for the plaintiff’s suicide attempt in January 2009, to the exclusion of the alleged assault.  Dr Fridgant accepted that these incidents had contributed significantly to the attempted suicide, but he was unable to say that they had contributed, for example, more than 50%.

1. Dr Tonkin saw the plaintiff in November 2009.  He was asked to carry out an assessment to determine whether her presentation was consistent with a formal diagnosis of any of the three autism spectrum disorders, one of which is Asperger’s disorder.  Dr Tonkin conducted a detailed assessment at the Faculty of Health clinic at the University of Canberra.  He concluded that there was evidence of symptoms of social anxiety, and some social avoidance tendencies, but that the plaintiff did not meet the diagnostic criteria for Asperger’s syndrome or either of the other autism spectrum disorders.

1. Dr Tonkin gave oral evidence.  He has been in practice as a clinical psychologist for some thirty years.  He has particular experience in the diagnosis of autism, including Asperger’s disorder.  He is a former director of the psychology clinic at the University of Canberra.  The interview to which he subjected the plaintiff took about three hours.  He described it as the gold standard for assessment of autism spectrum disorders.  His evidence was that its validity and reliability were accepted within his profession. 

1. Dr Tonkin was cross-examined at some length but adhered to his opinion as expressed in his report and his evidence in chief.  I found him an impressive witness.

1. Three reports by Dr Ilona DiBella were tendered in the plaintiff’s case.  Dr DiBella is a staff psychiatrist with ACT Health.  She was involved in the plaintiff’s treatment between April and June 2009.  Senior counsel for the defendant sought to rely on mention in her reports of a diagnosis of Asperger’s disorder.  I am satisfied, having read her reports, that this was not a diagnosis that Dr DiBella had arrived at personally, but rather something she had been told of by others.  It seems to me most likely that this emanated from Dr Fridgant’s earlier putative diagnosis, since proved incorrect on testing by Dr Tonkin.

1. Senior counsel for the defendant also sought to make something of records and the notes of two of the plaintiff’s general practitioners, Dr Hannaford and Dr Loong, that prior to the conference in Sydney the plaintiff had said she had never been sexually active.  Neither of the doctors gave oral evidence.  It seems to me more likely than not that the expression “sexually active” was an expression used by each of the general practitioners, rather than being an expression used by the plaintiff herself.  I accept that the plaintiff tends to be literal, and I accept that she had never had sexual intercourse prior to the events of 13 August 2007.  I think that it is most likely that the plaintiff told each of the doctors either that she was a virgin or that she had not had intercourse prior to that date, and that the doctors used their own language to record this as “never been sexually active”.  I accept that the plaintiff probably engaged in some activity with her boyfriend when she was about twenty-one which might come within the category of sexual activity.  I am satisfied that on two occasions in November 2006 she engaged in what was unarguably sexual activity with the defendant, in a conference room at her workplace and in her car at Lake Ginninderra.  But I am satisfied that she had not had intercourse prior to August 2007, and I am far from satisfied that she intentionally misled her doctors about the extent of her sexual experience prior to August 2007.

1. Also in evidence were three reports by a rehabilitation provider, Ms Dupont, engaged by FaHCSIA, in August 2009 and February and March 2010.  The evidence is that the plaintiff was provided with copies of these reports at the time and was rather upset by a suggestion in the reports that she had not been a team player and had been unsatisfactory in her work with FaHCSIA.  By and large those reports seem to me consistent with the evidence in the plaintiff’s case, neither being particularly supportive nor particularly detractive from the case.

Liability – consideration of the evidence

1. For a number of reasons, I preferred the evidence of the plaintiff to that of the defendant.

1. The plaintiff came over to me, in the course of her oral evidence, as an honest and truthful person.  In circumstances where there was no prospect of independent corroboration, she gave evidence which most people would see as against her own interests.  She made, I thought, no attempt to embellish her evidence in areas where many people would have been tempted to do so.  She admitted, for example, to watching the pornographic video she had bought at Fyshwick.  She admitted to a single incident of use of the vibrator the defendant had given her.  She described frankly and in some detail the incidents of sexual activity with the defendant prior to the conference in Sydney. 

1. Additionally, her evidence was consistent with the early statements she made, and descriptions she gave.  These descriptions were not verbatim: one would not expect them to be.  But any discrepancies were minor and the general picture of what happened at the apartment in Sydney was consistent throughout. 

1. Clearly the plaintiff has some characteristics consistent with Asperger’s syndrome, although I accept the evidence of Dr Tonkin that she does not meet all of the criteria and is not suffering from that condition.  Nevertheless, it seems to me that those characteristics of the condition which she does have include that of telling the truth.  I accept that it is unlikely that a person with her psychological makeup would tell deliberate untruths.

1. The defendant’s evidence, in contrast, was in a number of respects inconsistent with the statement he gave to the insurance investigator.  I would not go so far as to make a positive finding that the defendant gave intentionally false evidence as to a number of areas where his evidence was at odds with that of the plaintiff, although I acknowledge that he might have done so.  It is also possible that a man of his sexual experience mixed up some of the things which happened on the first night in Sydney at the apartment with experiences he had had at other times with other women.

1. I am, however, satisfied that in his statement to the investigator the defendant deliberately falsified his account of what had happened.  His version of the plaintiff taking an active part in the sexual activity, including performing fellatio on him, seems to me completely inconsistent with her naivety and sexual inexperience.  I also reject his statement to the investigator that the plaintiff told him that she had previously seduced a former superior. 

1. It seems to me that what happened on the night was that the defendant badly misread the signs.  The plaintiff had on the previous occasions of sexual activity between them exhibited reluctance initially but had come around with physical stimulation to participate.  It seems to me likely that the defendant thought that the same thing would happen in Sydney: she would initially say no and rebuff his physical advances but would eventually come around and participate in sexual activity with him.  It may be that he had had experience of such a kind with another woman or other women in the past.

1. However, in Sydney I accept the plaintiff’s evidence that she reminded him of their agreement not to engage in further sexual activity and that she rebuffed such physical advances as he made at the hotels in Oxford Street and in the sex shops.  I accept that she was genuinely astonished, not to say horrified, when he came into her bathroom naked and that she told him to get out.  I accept that she saw him naked on his bed as she went to her bedroom, and that she closed the door to her room immediately before going to bed.  I accept that the defendant came into her bedroom uninvited and forced himself upon her.  I accept that the plaintiff became resigned to her fate and did not fight him off.  I accept that she “kissed him back” and that she played a part in the removal of her pyjamas and underpants.  I accept that the defendant was probably misled by her behaviour into assuming that he had her consent to have intercourse with her. 

1. I find on the evidence that the defendant penetrated the plaintiff and had sexual intercourse with her to ejaculation, and that he made the comment about having all night to practise.  I accept that he was unaware that she was a virgin, and that it was not unreasonable for him to assume that a woman of her age and position in life was not a virgin.

1. I am satisfied that the defendant did not have the plaintiff’s permission to enter her bedroom, to kiss her (after the first goodnight kiss, to which she agreed under duress to get rid of him) and certainly not to have sexual intercourse with her.  I accordingly find that the defendant committed a trespass to the plaintiff’s person, entitling her to damages.

Damages

1. I accept the plaintiff’s evidence generally as to her reaction after the assault.  She was devastated by what had happened.  By reason of her pre-existing personality, the impact on her was much greater than it might have been on a woman of more robust psychological makeup.  I accept that the plaintiff seriously contemplated suicide in the days after the assault.  She found herself unable to return to work and go on with her previous life.  She had many months off work, and returned when she did only because her workers’ compensation benefits had been cut off.

1. The plaintiff was no doubt more vulnerable by reason of her existing psychological problems, but it seems that these had not seriously interfered with her working capacity until the assault.  She had a tendency to depression, and had required counselling and other treatment from time to time. In assessing damages I take account of the fact that, were it not for the assault, the plaintiff would be  more vulnerable to some trigger setting off psychological problems than the typical woman of her age, work experience and qualifications.

1. There is an issue to be determined as to the part played by the plaintiff’s difficulties at FaHCSIA following the restructure.  I am satisfied that the events at FaHCSIA were a cause of the plaintiff’s subsequent suicide attempt and time off work, and her psychiatric treatment, but I am equally satisfied that the assault was also a cause of those things.  It seems to me that if it had not been for the assault, the plaintiff may well have been able to weather that storm, and that the condition in which she had been placed by the assault greatly increased the likelihood that such an incident would have such a major impact on her.  This seems to me to be the effect of the evidence of Dr Mahoney, whom I accept, and who has seen the plaintiff fortnightly for a number of years.

1. Dr Mahoney has some optimism that the plaintiff may not require psychological treatment forever, but is of the view that the requirement is presently for the indefinite future.  At the same time, the plaintiff now seems to be coping with work as a contractor to government.  I take account of the fact that the assault has increased her vulnerability to other triggers in the future, and that she is now more likely to be negatively affected by things that happen outside her control, in the way she was affected by the events following the restructure at FaHCSIA.

1. Counsel for the plaintiff in his closing address suggested a range of $100,000.00 to $120,000.00 for general damages for pain and suffering, loss of enjoyment of life and the other components of non-economic loss.  Senior counsel for the defendant did not really address on damages, even in reply to the plaintiff’s submissions.  This is a case where the purely physical injury caused by the assault was transient and comparatively minor.  The major consequences have been psychological or psychiatric.  This is not to minimise their effect on the plaintiff.  Her life, certainly to the date of trial, was very different from what it would have been if the assault had not taken place.  I am persuaded that a reasonable figure for general damages is $100,000.00.  It seems to me that the larger part of that sum should be apportioned to the past and a lesser sum to the future.  The past component attracts interest.  I apportion $70,000.00 to the past.  This attracts interest at the rate applicable under the general law of 4% per annum, spread relatively evenly over the period since the assault.  For interest I allow $9,000.00

1. There was some disagreement between counsel as to a concession made by senior counsel for the defendant as to past treatment expenses and past loss of earnings.  During the course of the trial I was informed by counsel that agreement had been reached as to both of those components.  During the closing address of counsel for the plaintiff, senior counsel for the defendant asserted that the concession had been a more limited one.  I had understood it as an agreement that if the plaintiff succeeded on liability, those components of the damages were agreed.  Senior counsel for the defendant said that they were agreed “only as to quantum”.

1. This meant that it was agreed that the amounts claimed for those two components were fair and reasonable and that the plaintiff had incurred those expenses and losses, but it was not conceded that the losses flowed from the assault.  The defendant’s position was that the losses were at least partially caused by the events at FaHCSIA following the restructure in 2008. 

1. Counsel for the plaintiff sought to persuade me that the concession had been made, many days earlier during the hearing, and that his client would be at a disadvantage if the defendant were now permitted to place such a condition upon the agreement.  Counsel for the plaintiff suggested that if he had been aware that the agreement was limited in that way, he would have called further evidence, but did not go into detail about what further evidence he might have called.

1. I have already explained that, in relation to the period after the events at FaHCSIA, I see both the assault and those events as causes of the plaintiff’s loss.  I cannot immediately see that there is further evidence available to the plaintiff which was not called during her case, which might have altered my view about that.  The issue as to the effect of the FaHCSIA events was apparent to those advising the plaintiff when evidence was given in her case.  It was not suggested to me that the plaintiff’s counsel made a forensic decision not to call any particular evidence when the agreement or concession about expenses and economic loss was made.  Accordingly I propose to deal with the problem which has arisen on the evidence as it stands.

1. The agreement was that the plaintiff had incurred treatment expenses of $63,037.85, of which $58,467.40 attracts interest.  It was conceded that she had suffered past economic loss, that is, lost earnings, of $254,718.75 and that the whole of that sum attracted interest.

1. It seems to me that the correct approach is to make some deduction from each of those figures to reflect the possibility that if it had not been for the assault, the plaintiff might have incurred some of that expense, and suffered some of that loss, purely by reason of the events at FaHCSIA.  Adopting that approach, I allow $60,000.00 for past treatment expenses and $220,000.00 for past loss of earnings.

1. As to treatment expenses, I allow interest on $50,000.00.  In the absence of any submissions from counsel on either side about the rate or calculation of interest, bearing in mind that the expenses and losses were incurred over an extended period, I adopt the conventional rate of 9% and allow interest of $10,000.00.

1. I adopt a similar approach to interest on the past loss of earnings, for which I allow $50,000.00.

1. The plaintiff received some workers’ compensation from which tax had been deducted.  The Fox v Wood figure was agreed between the solicitors for the parties following my reserving judgment at $38,856.00.  I allow that amount.

1. Counsel for the plaintiff sought a figure for future treatment, principally based on the fortnightly sessions with Dr Mahoney ($175.00 a session) of $25,000.00.  I said during closing address that I would discount that claim significantly because of the plaintiff’s pre-existing vulnerable personality.  I allow $15,000.00.

1. For loss of earning capacity for the future, counsel for the plaintiff sought a figure of $200,000.00, based on an earning differential of a little over $700.00 per week for five years.  Senior counsel for the defendant submitted that there was no proper basis for any award for future economic loss, considering that the plaintiff was in full-time employment by trial and was completing a Master’s degree.  I am satisfied that her earning capacity has been affected, but I take account of the fact that she was, absent the assault, vulnerable to triggers which might have reduced her earning capacity in the future.  I also take into account, in a general rather than a mathematical manner, the possibility that the plaintiff may, for some reason unforeseeable at this time, decide to take her own life at some point in the future, thereby shortening her whole life and also her working life. 

1. The 3% multipliers for a woman aged 45 are 623 to age 60, 770 to age 65 and 1161 to death. 

1. Taking all of those considerations into account, I allow $150,000.00 for loss of earning capacity for the future.

1. The plaintiff makes a small claim for services provided by her parents, which I allow, at $25.00 an hour, in an amount of $4,000.00 plus interest of $2,000.00.

1. The plaintiff makes a further claim for aggravated damages and for exemplary damages.

1. It does seem to me that this is a case where a small amount is appropriate by way of aggravated damages, not so much for the conduct at the time of the assault,  but for the manner in which the defendant conducted the defence of the action.  Senior counsel for the defendant, I must assume on the defendant’s instructions, conducted the hearing, and in particular the cross-examination of the plaintiff, in a manner which was highly confrontational and at times aggressive, accusing her of lying on oath, something I have found she did not do.  It was apparent to me, and must have been apparent to the defendant and his lawyers, that these accusations, put in a confrontational and aggressive manner, had a serious negative emotional impact on the plaintiff.  An award of aggravated damages for the manner in which a trial is conducted is well established in defamation actions.  There seems to me no reason why the approach is not equally applicable in an action for damages for trespass to the person, and in this particular case for sexual assault.  I award $10,000.00 by way of aggravated damages.

1. Counsel for the plaintiff also seeks exemplary damages.  These may be awarded where the defendant’s conduct merits punishment, having been knowingly violent, cruel, insolent or high-handed: see Luntz, Assessment of Damages for Personal Injury and Death, 4^th Ed, LexisNexis Butterworths, Para 1.7.4.  This was not a rape accompanied by violence or the threat of violence.  The defendant was not, in my opinion, aware of the effect of his physical behaviour on the plaintiff’s psyche.  I am not persuaded that this is a case which warrants an award of exemplary damages.

Conclusion

1. The components of the amount I propose to award by way of damages are as follows:

General damages  $100,000.00

Interest on past component                   $9,000.00

Past treatment expenses   $60,000.00

Interest on past treatment expenses    $10,000.00

Past loss of earnings  $220,000.00

Interest on past loss of earnings          $50,000.00

Tax on compensation   $38,856.00

Future treatment expenses                  $15,000.00

Loss of earning capacity for future    $150,000.00

Gratuitous services   $4,000.00

Interest thereon   $2,000.00

Aggravated damages   $10,000.00

___________

$668,856.00

1. Upon consideration that figure appears to me to represent a fair reflection of the effect of the trespass by the defendant upon the person of the plaintiff.  There will be judgment for the plaintiff for $668,856.00.

1. Costs will follow the event unless there is some reason for a different order of which I am unaware.  I shall make an order for costs but stay its execution for 14 days to allow a party to make an application for a different order if so advised. 

I certify that the preceding two hundred and twenty five (225) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Master Harper.

Associate:

Date:      5 December 2013

Counsel for the plaintiff:  Mr S R Hausfeld
Solicitors for the plaintiff:  Stacks with Snedden Hall & Gallop
Counsel for the defendant:  Mr F J Purnell SC
Solicitors for the defendant:  Ken Cush & Associates
Date of hearing:  21-22 June, 6 July, 26-29 September 2011
Date of judgment:  5 December 2013