Tate (a pseudonym) v Stafford (a pseudonym)

[2017] VCC 1403

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
(Not) Restricted
Suitable for Publication

PAMELA TATE [a pseudonym]	Plaintiff
v
JOSHUA PETER STAFFORD [a pseudonym]	Defendant

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JUDGE:	HIS HONOUR  JUDGE JORDAN
WHERE HELD:	Melbourne
DATE OF HEARING:	7,8,11- 15  September 2017
DATE OF JUDGMENT:	15 September 2017
CASE MAY BE CITED AS:	Tate (a pseudonym) v Stafford (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2017] VCC 1403

REASONS FOR JUDGMENT
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Subject:  Sexual assault- general damages claim
Catchwords:            
Legislation Cited:     
Cases Cited:            
Judgment:                Judgment for the plaintiff – Application for costs reserved

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Thomson	Hymans solicitors
For the Defendant	Mr D Baker	Cash & Stavroulakis Lawyers

This matter has been anonymised and pseudonyms allocated per the Court’s Anonymisation Protocol to ensure there is no possibility of identification the plaintiff, defendant, family or witnesses.  

HIS HONOUR:

1       The plaintiff gave evidence about a sequence of events at her home at Harkaway near Berwick on 21 April 2015. She heard the defendant’s truck arrive. She came to know him initially as a friend of her then partner Craig.[1] She had got to know him more as time went on and they became friends seeing each other at times when Craig was present and at times when he was not with them. It was about 9 am that morning.  She was still in pyjamas. She said she had been living with Craig at this house for some years and he had gone off to work. She was then aged 50 years.

[1]Craig is a pseudonym.

2       She described how the defendant went around the house, yelled her name and knocked on doors and windows of various rooms. She hid in a cupboard in her bedroom as she did not want to see him. Her evidence was that the events on this day had followed some inappropriate comments that he had made in public in the past such as “I could make you my trophy wife”.[2] In the morning of the day before, 20 April 2015, she had bumped into the defendant at a nearby shop. He seemed agitated. He gave her an “uneasy” feeling she said and he wanted to have coffee with her. They had coffee at the shop that day and parted company.

[2]Transcript (T) 49-51

3       When he came to her home the next morning, after a time she thought he had gone, so she went to the kitchen. She saw the defendant standing at the sliding door between the kitchen and the deck area outside. She opened the door and asked him whether he wanted coffee and he replied “that’s what I’m here for”. He ended up making the coffee for both of them after he told her to go outside on the deck and have a cigarette. She did so and they both sat outside on the deck area adjacent to the kitchen.

4       She took a sip of the coffee and then her telephone rang. It was her daughter. She took the call in the kitchen. She then drank half the coffee and noticed that it tasted a bit funny. She felt her heart start racing and there was a funny tang to the coffee. At first she got hot and then her heart started pounding and she thought she was having a heart attack. It felt like a rush of blood. She then felt she could not move and she was paralysed. She was scared because she did not know what was going on.  As she lay on the couch out on the deck just staring, she felt she could not do anything.

5       It seemed like she passed out but then she recalled him picking her up in his arms and telling her that she had to walk around a bit. He gave her a drink of water. He then went down to a local shop and came back with some orange juice and a sports drink and told her to drink them. She could not recall certain events but remembered vomiting constantly. At one stage she was dressed but sitting in the shower with cold water running over her. She then recalled being in the laundry trying to put some dry clothes on. The defendant was not in the laundry. She put on a large T-shirt that belonged to Craig. It was open and loose at the top and she also put on some tracksuit pants. She felt an excruciating headache, her heart was beating in her head and going “boom boom boom”.[3]

[3]Transcript (T) 66-67

6        She remembered lying on the couch with her head on the defendant’s lap at one stage. He was feeling her wrist to detect a pulse while rubbing her shoulders. She felt she just wanted to sleep. He then had his hands down the front of her shirt, down to her breasts. His hands were under the T-shirt. His fingers were on her breasts but not as far as her nipples. [4] She recalled pushing his hands away. In terms of her mental state she felt like she was “slipping in and out of consciousness”.[5] At one stage he lay down on the couch behind her and wanted to spoon her. She remembers being unable to speak. She did not know what was going on but her head was pounding. When he left she said “thank you for looking after me”.

[4]T 147

[5]T 144

7       Mobile phone records were tendered that showed persistent attempts by him to contact her from his mobile. These were between 10.04 am and 11.22 am on 21 April.[6] Her evidence was unclear as to when these occurred in relation to the events when he was outside and around the house.

[6]Exhibits C,D

8       She next remembered Craig being home and taking her to Casey hospital. She had a really bad headache and the doctor was worried about a brain bleed. A brain CT scan was done and fluid was drained from her spine. Blood was also taken and analysed. Exhibit A is the Toxicology Report dated 14 May 2015. She was kept overnight and discharged the next morning. She went to her cousin Olivia Salina’s[7] place at Bundoora. She did not want to stay at her own home because she had a feeling that something bad had happened.

[7]Oliva Salina is a pseudonym.

9       On the way home from hospital the next morning she listened to a message on Craig’s phone. She recognised the defendant’s voice and it said “Yep guilty”. She felt anxious, angry and upset and did not feel like leaving the house for some time. She had decided to go to the police and complain about the matter after receiving the Toxicology Report. She made two police statements. One was in 2015 and the second in 2016.[8]

[8]Exhibits 2,3

10      She attended her general practitioner Dr Siddiqui on 23 April 2015 and further attended him on 16 June 2015. In the meantime she had also contacted the victims of crime organisation and was referred to Joan Callahan, a psychologist. She attended her on 2 June 2015. Then there was a further referral via the victims of crime network to Sophie Gilmore who she attended for counselling over some 16 or so sessions. She has also seen a counsellor once in Mildura in June.

11      The relationship with Craig broke up in September 2016. They had maintained a sexual relationship at least until December 2015. They stayed living together at Harkaway and then took on a further lease of a Beaconsfield home until September 2016. From July to September 2016 they were effectively living apart but under the one roof before Craig left. The plaintiff obtained other employment with Trojan Systems in Doveton performing office based work. She started on four days per week before moving to five days.

12      This continued until the plaintiff left Melbourne in May 2017. She resigned from her job due her feeling her work performance was being affected by her feeling depressed and ringing in sick repeatedly. The employer had warned her about performance issues. She went to Mildura to get away from Melbourne as she was not coping and needed family support. She has been living in a caravan on her aunt’s property in Mildura.  A couple of weeks ago she obtained some casual employment in the office at the local base hospital.

13      

The claim before the court is for damages for sexual assault on 21 April 2015. No claim is made for economic loss. It is a claim limited to general damages for pain and suffering and loss of enjoyment of life.

The Defence filed by the defendant’s solicitors contains the admission in paragraph 4 that “he inappropriately touched on her breast thereby committing an indecent assault on her”. [9]

[9]Defendants Court Book (DCB) 2

14      There was a difference in the versions given by the parties as to exactly what took place at her home that morning. But the pleadings, cross examination of the plaintiff and the way the defence was conducted indicated there was no contest about an indecent assault taking place that involved touching her breast.[10] The defendant pleaded guilty to that charge at the Magistrates Court at Dandenong on 24 May 2016. On that day he was legally represented and also pleaded guilty   to stalking her by way of numerous mobile phone calls and messages on the same day as the assault. However when the defendant came to give evidence before me, he took issue with both his guilty plea at the Magistrates Court and the pleading in paragraph 4 of his Defence.

[10]T 149,151-152

15      The plaintiff was cross-examined about some aspects of her past history. She was taken back to the time in the Northern Territory when she became pregnant with twins at 16 years of age. She readily admitted that she had been in effect kicked out of home after she became pregnant. She also admitted that she had been sexually abused by her father from age 8 to 13 which involved mainly him touching her breasts.

16      Inconsistencies were pointed out in cross examination between the first police statement on 23 April 2015, the history given to Ms Joan Callahan on 2 June 2015 and the second police statement a year later on 21 April 2016. Topics that were suggested as inconsistent included the absence of mention of her hiding in the cupboard. Differences in terms of the sequence of events on the morning were highlighted as well as some of the times that were mentioned. She was also challenged as to why she did not initially complain to her partner Craig but rather spoke to her cousin Olivia.

17      Her credit was attacked on some topics. I agree with the submission that there was an unusual aspect about the behaviour of an adult in her own home hiding in a cupboard for so long. She was after all hiding from someone she described as a friend but it needs to be put in context. He had made her feel “uneasy” and had made very inappropriate comments in the past. I accept on the probabilities that she was anxious to avoid him and was fearful of him coming into the home.

18      I accept her evidence that she is still somewhat confused about the order of events that occurred and what was said in view of her in effect coming in and out of a fully conscious state. This limitation of her mental condition is a reasonable explanation as to why there is some inconsistency between what was said in the various statements and now. Regarding Craig she did not complain to him as she had mentioned things to him before and he had just “brushed me off, like I was an idiot”.[11] She explained that she felt some guilt about not having complained and not telling the defendant to go away. She also felt embarrassed about hiding in the cupboard because as she said “I’m a grown woman”.[12]

[11]T 138

[12]T 142

19      Looking at the whole of the evidence I found her evidence consistent on the essential facts. I accept her account of the relevant events in issue. I found her a plausible and reliable witness who was labouring under a clouded recollection of events due to something that she had probably ingested when she drank a cup of coffee. I did not find her a witness who was prone to embellishing her evidence nor in any way evasive. I found her to be someone who was trying to tell the truth at all times but having difficulty giving precise information when in her own mind a lot of what occurred was far from precise.

20      She made some admissions against interest for a plaintiff seeking damages for pain and suffering and loss of enjoyment of life. It was agreed by her she had earned more taxable income from employment in years after the assault than before.[13] She described  starting off on Centrelink  when she went to Mildura in May or June, but that she had now found casual work performing a range of duties filling in at the hospital.  

[13]Exhibit 1

21      She also conceded her sexual relations with Craig had continued even after they ceased living together. Since April 2015 she had travelled overseas with her two daughters. She volunteered she had only sought counselling help via the victims of sexual abuse agency in Mildura once and that was in early June. She conceded the defendant had rendered her assistance on the day in question.[14]

[14]T 144

22      These matters were consistent with an honest, reliable witness who I had the considerable benefit of not only hearing but observing over three days in the witness box. I accept the version she gave of events at her home on the morning of 21 April 2015. Most importantly I accept her evidence that out on the deck he sexually assaulted her when he put  his hands down her T-shirt onto her breasts. She readily conceded that he did not touch her nipples. I also accept her evidence that regarding the assault that she relies on in this claim “he never did anything save for this inappropriate touching on the breasts”.[15]

[15]T 150

23      A clinical psychologist, Ms Joan Callahan, gave evidence following a single examination of the plaintiff back on 2 June 2015. She saw the plaintiff for about 90 minutes. She thought the plaintiff suffered lifelong conditions that included depression and followed a history of sexual abuse by her father. The diagnosis was adjustment disorder with depressed mood following the assault that is before me, but she seemed to say at one stage it was only partially caused by that assault along with other stressors being her past history of abuse and current lack of support from her partner. Later she resiled from the suggestion there was a lack of support.[16] Ms Callahan was an expert witness who readily conceded she had laboured under a number of misconceptions.[17]

[16]T 248,256-257

[17]T 242-243,247

24      Her evidence was little unclear on causation and prognosis. At various times she used words like cumulative, compounding, partially significant and speculative when referring to the relevance of past events[18]. Accordingly, after re-examination I asked her myself about the role of the sexual assault in the diagnosis and the comment about partially causing her condition. This was limited she said to prognosis rather than diagnosis.[19]

[18]T 249,263,264

[19]T 249,272-273

25      She described the assault as a discrete incident and the poor prognosis was because of it as well as the other matters. While aspects of her evidence were still not entirely clear, I took her as saying the assault caused the condition but came on top of some pre-existing vulnerability. I accept that is probably the case.

26       She went onto say that adjustment disorder is a temporary condition caused by stress. However there was some debate about the topic and it can be chronic.[20] By chronic she described that as continuing “for 12 to 18 months”.[21] The psychiatric condition she diagnosed six weeks after the assault was “a lower order psychiatric disorder”.[22]

[20]T 271,272

[21]T 272

[22]T 248

27      Ms Callahan’s evidence was the subject of sustained criticism by the defendant but in the end I found her to be a candid witness who readily conceded her assessment was brief and only for VOCAT purposes which meant inevitable limitations.[23] She did not think the adjustment disorder pre-existed the assault although it was not normal for a person to hide in a cupboard from a “friend” before any assault took place.

[23]T 246,252,254

28       She also thought there was an absence of social connections which added to the condition but after Ms Tate’s family contacts were pointed out to her she dropped that aspect of causation.[24] Her evidence was “The alleged sexual assault that took place is the cause of her condition.”[25] She is the only expert called in this case so there is no medical opinion challenging her opinion. Even though there was some equivocation in her evidence and it was based on only one assessment I accept on the probabilities the opinion I have just quoted.

[24]T 248,256-257

[25]T 250

29      Of course she was speaking of the situation as it was almost two and a half years on 2 June 2015. I have to assess not only the past but the present and the future if they are proved in a damages claim. Ms Callahan thought overall the prognosis was poor. She readily conceded that she was hamstrung to an extent by having only that one assessment. Curiously there is thus no up to date expert evidence of the plaintiff’s current condition if any, its effects and its prognosis. So as to the present and the future all I have by way of professional opinion is Ms Callahan’s and it was formed only six weeks after the assault. It must be a rare damages claim where the expert evidence is so thin and so dated.

30      She properly conceded that she could not comment on the plaintiff’s current condition. Nor could she say anything about her employability. When Ms Callahan assessed the plaintiff it seemed she was to some extent expecting to be disbelieved and, while honest, she was not entirely open with the psychologist.[26]

[26]Exhibit E , T 256

31      I have been taken to the authorities of Watts v Rake and Purkess v Crittenden.I reject the defendant’s submission that her earlier difficulties in life played a causative part in her adjustment disorder with depressed mood. The assault caused that. There was probably some vulnerability but the defendant must take her as he finds her.

32      The next witness called was Ms Olivia Salina. She is the plaintiff’s cousin and also a close friend who has been supportive over the years. She gave before and after evidence about changes she had seen in her cousin. Prior to the assault the plaintiff had been outgoing, confident and friendly and Miss Salina looked up to her. After the events of 21 April 2015, the plaintiff was more withdrawn, conversation was more difficult and she had lost her previous jovial manner. It was hard to get the plaintiff to go out and have a good time and she had not been like that before. The contact between the two women had been constant both before and after the assault in 2015.

33      She also gave evidence about telephone conversations and messages on the morning in question. The plaintiff had rung her or texted her while still in the cupboard hiding. Ms Salina related how the plaintiff had told her she felt freaked out, did not want to come out and had been in the cupboard for an hour. That evening she telephoned the plaintiff who said she felt sick and answered in a muffled voice and made sounds like a person vomiting. Later that evening Ms Salina rang back again and the plaintiff was still sounding muffled, incoherent and not making sense. Ms Salina said she also telephoned Craig on 21 April seeking his assistance. Two days later this witness took the plaintiff to the police station to report the matter.

34      By agreement two reports of Ms Sophie Gilmore were read into evidence. These were redacted reports dated 8 November 2016 and 17 May 2017.  I had ruled parts were inadmissible.  She described herself as a social worker and later as a counsellor/advocate. In essence the first report described seven sessions of counselling that started on 8 April 2016 as well what the general approach, treatment and ultimate goals were with respect to the counselling. The complaints made by Ms Tate were also recorded. By the time of the later report there had been sixteen sessions in all and counselling had continued along the lines already discussed.

35      A number of documents were then tendered by the plaintiff.[27] These consisted of the Monash hospital discharge summary and the CT brain scan both dated 22 April 2015. These notes refer to headaches and palpitations but do not mention any assault.[28]

[27]Exhibits F,G,H,J ,and K for identification

[28]Exhibit F

36      The clinical notes from Dr Siddiqui’s clinic recording attendances on 22 April 2015 and 16 June 2015 were tendered. They do not mention any assault. They include symptoms that refer to being agitated, anxious and suffering headaches and give anxiety as the reason for the second visit. They record a copy of notes to assist an approach to victims of crime and an intention to see SECASA for counselling. Concern about possible drug poisoning is reported in these notes.[29] I accept the brief references to symptoms in the notes of the doctor and the hospital were caused by the assault.

[29]Exhibit H

37      Certified extracts from the Dandenong Magistrate’s Court were put into evidence. They record the defendant’s pleas of guilty and convictions for trafficking prescribed drugs, indecent assault and stalking together with the Community Correction Order disposition.[30]

[30]Exhibit J

38      The plaintiff sought to tender the two complete, unredacted reports from Sophie Gilmore dated 8 November 2016 and 17 May 2017. I have already alluded to the ruling I made with respect to the admissibility of Ms Gilmore’s reports. These were received for identification purposes only.

39      Finally the plaintiff sought and received an admission from the defendant as to the contents of the Toxicology Report which is Exhibit A. The plaintiff then closed her case. This jurisdiction  involves a “once and for all “ assessment, yet no  medical or other expert opinion was provided, written or oral,  with which to assess any present ongoing condition and symptoms let alone into the future.

40      The defendant was called and his evidence from the outset was very vague, inconclusive and at times quite incoherent. I had to ask him myself on several occasions to clarify just what it was he was saying about certain events. As he proceeded to describe events there were many examples of him giving evidence in chief about facts that had not been fully put to her or not put at all.

41      Just to take a few, he said that he had “got crook” while at plaintiff’s place on the day when she had taken ill and he was trying to assist her.[31] This was in a context of her inferentially being affected by taking something illicit or otherwise that was having some adverse impact. About a month earlier at her place he also said that he had got a headache and again this was in a context of her ingesting something. He said she had some cocaine or speed she had shown him previously and it was pink and in a bag.[32]. On 21 April 2015 he said he asked her had she “been smoking that shit”.[33] These are just some of the matters that had never been put or properly put to the plaintiff.

[31]T 315,340

[32]T 316-317

[33]T 317

42      Others were the defendant saying in cross examination that the plaintiff had drunk two cups of coffee and the second one was made entirely by her. It was after this second cup that she had a “meltdown.”[34] In cross examination he also said he was stroking her as she lay with her head on his lap “because he was trying to get her off his leg” so he could get up from a seated position. [35]

[34]T 306,342-343

[35]T 347

43      It was of considerable benefit to not only hear but to also observe the defendant’s demeanour in the witness box. I found him an unreliable witness. He was evasive and inconsistent. When pressed on awkward matters he at times would say virtually anything he hoped would help his case. He constantly claimed immobility when challenged as to why he wandered around the house. He described being very immobilised. [36] Yet in contrast he said he carried the plaintiff into the shower. He also went down to a local shop and brought drinks back such was his concern for her wellbeing. He never explained satisfactorily why he failed over something like five hours to phone for or seek outside help if she was as violently unwell as he described.

[36]T 301,322,327

44      He told the court that “if he touched her it was accidental or it didn’t happen”.[37] When the guilty plea to indecent assault at Dandenong was put to him he in effect denied guilt and said that was just “to move on”.[38] He similarly dealt with the admission pleaded by his lawyers in the Defence by giving unsatisfactory responses.

[37]T 348-349

[38]T 350

45      He was the only witness called for the defence. His evidence was so unreliable, unsatisfactory and inconsistent that I reject his version of what occurred on 21 April 2015 and his testimony generally. On the balance of probabilities I accept he did intentionally place his hands down the plaintiff’s shirt and onto her breasts and thereby sexually assaulted her.

46      The Toxicology Report refers to the finding of some amphetamine in her system. The test is only the balance of probabilities. I am satisfied on that lesser standard that the likelihood is he did put some substance into her coffee. That substance left the residue of amphetamine found on testing. He placed that substance in a drink prior to the assault. This is consistent with him not seeking any outside help in a period of something like five hours he was with her that day. The defendant’s submission that somehow I should find she self-ingested the substance that showed up in the toxicology report is inconsistent with her going to the police to get her blood tested for drugs.[39]

[39]T 79

47      While the damages claimed here are for the sexual assault it is artificial in my opinion to ignore the circumstances. The relevant facts surrounding an assault of a sexual nature by a male on a female can vary enormously. The assault in this case occurred in circumstances where the plaintiff was coming in and out of a clear state of mind about what was happening. This has led to some uncertainty in her thinking and in my opinion it is part of the overall circumstances that are relevant to the nature and extent of her pain and suffering.

48      An assessment of general damages involves in this case a judgement solely about the mental and emotional impact as there was no physical injury. It is trite to say but it involves not only pain and suffering but also an assessment of how it has led to a loss of enjoyment of life. These concepts overlap and they are not two separate categories to be cumulated arithmetically. Both aspects still need to be taken into account in a composite way. The overall assessment is what is fair and reasonable to both parties in the circumstances. Damages are to fairly compensate the plaintiff and not to punish the defendant. Of course damages have to be assessed at the value of money today and on a once and for all basis.

49      I accept that as a result of the assault the plaintiff has suffered an adjustment disorder with depressed mood. It has impacted on her enjoyment of life. There has been no evidence that proves the other injuries pleaded being “monophobia” and “female sexual arousal disorder”.[40] Counsel for the plaintiff quite properly abandoned them.  She has largely remained in work although with different employers. She also continued the relationship with Craig for quite some time and this included maintaining sexual relations. Nevertheless the condition has caused her anxiety, fear, anguish and other forms of suffering in particular in the past.

[40]Statement of Claim paragraph 5

50      Doing the best I can in the absence of any medical or other expert material about the present condition and any likely future symptoms, this assessment requires an evaluation of the past. I take into account the evidence of the plaintiff about her present state and the before and after picture painted by Ms Salina. Ms Gilmore corroborated some of the more recent complaints. But the weight of all this evidence is limited to an extent by the absence of any current, supportive, professional opinion. As to the future it is little more than guesswork and speculation is not permitted. The onus of proving loss and damage remains on the plaintiff. I am not satisfied that any real ongoing symptoms or consequences have been proved.

51      Looking at her life after the assault she and Craig took on a lease of a new home they lived at together. She has recently moved to Mildura in May this year where she lives at her aunt’s place. Contact has been maintained with her two daughters as well as grandchildren. In fact they have   travelled together overseas on a holiday since the assault. The plaintiff has been robust enough to obtain employment now in her new rural town. It is casual work but hopefully might become more permanent.

52      Treatment has been very limited. She has not had any professional treatment now for some time. She has never been referred for specialist treatment and the single visit to Ms Callahan was in a victims of crime context.  Thereafter it only involved counselling from a social worker. This was over some sixteen sessions and she has only had one counselling session in the last four or so months. That was in early June in Mildura.

53      At the end of the submissions of the defendant I attempted to clear up some of the equivocation in the defendant’s case due to the pleading, the guilty plea in the Magistrates Court, the way the case was conducted and then what fell from the defendant in the witness box on the fifth day of this trial. Defendant’s counsel conceded a sexual assault by way of touching of the breasts took place but it was at the very low end of such assaults. Only past damages had been proved and it was submitted that a sum of $2000-$3000 would be a proper assessment.[41]

[41]T 409-410

54      Counsel for the plaintiff conceded that there was no evidence of monophobia or female sexual arousal disorder so any assessment was confined to adjustment disorder with depressed mood.[42] I gave counsel a further opportunity to address me on the absence of any up to date expert opinion and any opinion that went beyond the past. It was submitted by counsel that a proper allowance for general damages would be $90,000 t0 $120,000.

[42]T 431-432

55      Assessing the only proven condition being the adjustment disorder with depressed mood caused by the assault, involves an assessment of the past only. I find on the probabilities that it was a condition of a temporary nature lasting for 18 months to two years or so. It has never necessitated ongoing general practitioner or specialist treatment. There has been very limited treatment overall and it ceased a little over two years after the assault.

56      I assess general damages in the sum of $25,000. There will be judgment for the plaintiff against the defendant and I will hear counsel as to the orders.