ZYX (pseudonym initials) v Cable [No 5] - [2023] WADC 61

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   ZYX (pseudonym initials) -v- CABLE [No 5] [2023] WADC 61
CORAM:   HERRON DCJ
HEARD:   7 SEPTEMBER 2022 & 9, 10, 13, 14, 15 & 17 FEBRUARY 2023
DELIVERED          :   16 JUNE 2023
FILE NO/S:   CIV 874 of 2019
BETWEEN:   ZYX (pseudonym initials)
Plaintiff
AND
BARRY THOMAS CABLE
Defendant

Catchwords:

Historical child sexual abuse cause of action - s 6A Limitation Act 2005 (WA) - Section 15A Civil Liability Act 2002 (WA) - Tort of battery - Sexual abuse of girl when aged 13 to 17 by adult neighbour - Defendant respected public figure

Damages - Psychiatric injury - Loss of past earning capacity - General damages for loss of amenities - Exemplary damages - Aggravated damages

Similar fact evidence in civil proceedings - Sexual abuse of other female children many years after sexual abuse of plaintiff - Whether evidence makes it more likely the defendant sexually abused the plaintiff - Evidence relevant to rebut the implausibility of a respected public figure sexually abusing a child

Evidence - Jones v Dunkel inference - Whether the failure of the defendant to participate in the trial and to give evidence is relevant to whether the child sexual abuse occurred

Legislation:

Civil Liability Act 2002 (WA), s 3A, s 10A, s 15A, pt 2A
Evidence Act 1906 (WA), s 31A, s 36BD, s 38 - s 39G
Limitation Act 2005 (WA), s 6A, s 6A(2)

Result:

Judgment for the plaintiff in the sum of $818,700

Representation:

Counsel:

Plaintiff	:	Mr T J Hammond SC
Defendant	:	No appearance

Solicitors:

Plaintiff	:	Rightside Legal
Defendant	:	Not applicable

Case(s) referred to in decision(s):

Ailakis v Olivero [No 2] [2014] WASCA 127
Backwell v AAA [1997] 1 VR 182
Bennett v The State of Western Australia [2012] WASCA 70
Briginshaw v Briginshaw (1938) 60 CLR 336
Carter v Walker [2010] VSCA 340; (2010) 32 VR 1
Cunningham v Traynor [2016] WADC 168
Department of Health and Human Services v County Court of Victoria [2018] VSC 322
DF Lyons Pty Ltd v Commonwealth Bank of Australia (1991) 28 FCR 597
Erlich v Leifer [2015] VSC 499
Hughes v The Queen (2017) 263 CLR 338
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Lamb v Cotogno (1987) 164 CLR 1
Lawrence v Province Leader of the Oceania Province of the Congregation of the Christian Brothers [2020] WADC 27
LNN v The State of Western Australia [2021] WASCA 39
Longman v The Queen (1989) 168 CLR 79
Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Martin v Osborne (1936) 55 CLR 367
MC v Morris [2019] NSWSC 1326
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Pollock v Wellington (1996) 15 WAR 1
Preston v The State of Western Australia [2012] WASCA 64
Province Leader of the Oceania Province of the Congregation of the Christian Brothers v Lawrence [2021] WASCA 77
Quine v Keerasawat [2014] WADC 150; (2014) 87 SR (WA) 17
Stephensen v The Salesian Society Inc; Easton v The Salesian Society Inc [2018] VSC 622
Weir v Tomkinson [2001] WASCA 77
ZAB v ZWM [2021] TASSC 64
ZYX (pseudonym initials) v Cable [No 3] [2023] WADC 10
ZYX (pseudonym initials) v Cable [No 4] [2023] WADC 15

Table of Contents

Introduction

Procedural background

The pleadings

Findings of criminal conduct - Standard of proof

Legal basis of the action

Background

Plaintiff's police statement - Plaintiff's evidence

Some examples of the unreliability of the police statement

History provided to treating health professionals

Child sexual abuse - The evidence

The plaintiff

Gooseberry Hill - 1968

1969

Zig Zag scenic drive - Gooseberry Hill

Thornlie swimming pool incident - September 1969

Thornlie

1970

1971

Perth Football Club incident - Monday, 2 August 1971

1972

School social incident - 29 April 1972

Channel 7 incident - 20 June 1972

1973

1973 - 1983: Ongoing contact between the plaintiff and the defendant during the plaintiff's adulthood - including sexual contact

Defendant's tractor accident - 25 October 1979

Last sexual contact

Unidentified date of sexual contact

Battery - The law

Child sexual abuse - Findings

Mid to late 1968: 5. Particulars of the child sexual abuse: (a), (b) and (c):

Early 1969: 5. Particulars of the child sexual abuse, (d):

Early 1669: 5. Particulars of the child sexual abuse, (e):

Early 1969: 5. Particulars of the child sexual abuse, (f):

Early 1969: Masturbation of defendant: 5. Particulars of the child sexual abuse, (g):

1969: Zig Zag scenic drive, Gooseberry Hill: 5. Particulars of the child sexual abuse, (h):

1969: Thornlie swimming pool incident: 5. Particulars of the child sexual abuse, (j):

Thornlie house

Perth Football Club incident - 2 August 1971

School social incident - 29 April 1972

Channel 7 incident - 20 June 1972

Other sexual acts

23 July 1971

1 August 1971

30 March 1973

The plaintiff's mother

Jones v Dunkel inference

Defendant's written submissions

Similar fact evidence

Implied admission against interest

Findings

Similar fact evidence - The plaintiff's submissions

Similar fact evidence - The legal principles

Damages

General damages - Loss of enjoyment of life/Loss of amenities

Medical/psychological evidence

Dr Robin Jones

Psychological report dated 27 October 1998

Report dated 24 February 2020

Geoffrey Andrew Kirkman

Geoffrey John Riley

Jonathan David Ewart Laugharne

Report dated 14 December 2022

The plaintiff's husband

Findings

The plaintiff's employment history

Loss of earning capacity

Aggravated and exemplary damages

Exemplary damages - The law

Aggravated damages - The law

Findings

Past and future medical expenses

Summary

CONFIDENTIAL ADDENDUM

HERRON DCJ:

Introduction

From mid-1968 to early 1973, when she was a child aged approximately 12 to 17 years of age, the plaintiff says she was repeatedly sexually abused or assaulted by the defendant causing her to suffer personal injury, principally psychiatric harm, for which she claims damages.
The plaintiff also claims that from 1974 until 1991 the defendant had ongoing contact, and engaged in sexual activity, with her which constitutes a severe breach of trust, was predatory, and in contumelious disregard of the plaintiff's welfare for which she is entitled to be awarded exemplary and aggravated damages.
The defendant denies he engaged in any sexual conduct with the plaintiff when she was a child and denies he sexually abused or assaulted her. He says he and the plaintiff had a consensual sexual relationship in or around 1983, when she was an adult, for a period of approximately three years.
For the reasons which follow, I find:
(i)From approximately late 1968 or early 1969, shortly after the defendant first met the plaintiff when she was a school girl, he engaged in a course of grooming behaviour, speaking to the plaintiff in sexualised language and exposing his penis and genital area to her, mainly in and around his house in Gooseberry Hill. The defendant's sexualised behaviour towards the plaintiff escalated in 1969 to showing his erect penis to the plaintiff and demonstrating to her how to masturbate his penis.[1]
(ii)On two occasions, in approximately late 1969 at the Thornlie swimming pool and on 2 August 1971 at the Perth Football Club, the defendant attempted to sexually penetrate the plaintiff when she was a child by attempting to penetrate her vagina with his penis before forcing the plaintiff to masturbate him. In late 1969 the plaintiff was aged 14 and on 2 August 1971 she was aged 15, nearly 16.[2]
(iii)From about March/April to August/September 1969 during the Western Australian Football League (WAFL) football season, when the plaintiff was aged 13, a pattern of regular sexual contact with the plaintiff occurred in which the defendant, on an almost weekly basis, drove the plaintiff in his car during which he forced her to masturbate him, often to ejaculation, while he also sexually touched and fondled the plaintiff's breasts and vaginal area, and on occasions forced her to perform oral sex on him by pushing her into his groin. The defendant also often tongue kissed the plaintiff.[3]
(iv)On two occasions in 1969 while he was living in Gooseberry Hill the defendant drove the plaintiff to a bush track called the 'Zig Zag', exposed his penis and forced the plaintiff to masturbate him. On the first occasion he also touched the plaintiff's breasts above her clothing.[4]
(v)On one or two occasions outside the football season, between approximately October 1969 and January 1970, the defendant engaged in similar conduct with the plaintiff while driving her in his car as he did during the football season when the pattern of regular sexual contact with the plaintiff was established.[5]
(vi)Throughout 1969 and into January 1970, the defendant regularly indecently dealt with the plaintiff by rubbing his erect penis against her through his clothing and forcing her to touch his penis through his clothing. He also touched and fondled the plaintiff's breasts and vagina above and beneath her clothing. This type of conduct occurred less frequently after the defendant moved to a house in Thornlie in October 1969 because of the reduced contact with the plaintiff. It happened on a few occasions at the Thornlie house.[6]
(vii)On one occasion, probably during the school Christmas holidays in 1969/1970 when the plaintiff stayed overnight at the defendant's house, and while they were watching TV together, the defendant rubbed her genital area and touched her breasts beneath her clothing while her younger sister was asleep nearby.[7]
(viii)On 1 January 1971 in the backyard of his home, the defendant put his arm around the plaintiff and fondled her breasts above her clothing while blowing into her neck and calling her 'his big girl'.[8]
(ix)From October 1969, probably when the defendant was living in Thornlie, to January 1970 before he moved to Victoria, on approximately three or four occasions the defendant, while playing in the Thornlie swimming pool with the plaintiff, touched her on her groin area with his feet and touched her breasts with his hands. He also took off his bathers while encouraging the plaintiff to take off her bathers. The plaintiff was aged 14.[9]
(x)On two occasions in 1972, 29 April 1972 and 20 June 1972, while driving the plaintiff, when she was aged 16, the defendant sexually touched the plaintiff, exposed his erect penis to her and forced her to masturbate him.[10]
[1] [246] - [250].
[2] [268], [285] - [287].
[3] [251] - [253].
[4] [254] - [259].
[5] [113], [253].
[6] [132], [270] - [272].
[7] [283].
[8] [284].
[9] [144], [261] - [262].
[10] [288] - [290].
Except for the conduct in [4(i)], the actions or the conduct of the defendant in each of the paragraphs above constitute the tort of battery and constitute child sexual abuse.
I further find that as a result of being sexually abused by the defendant the plaintiff has suffered psychiatric injury and harm and is entitled to an award of damages as follows:

General damages

$250,000

Exemplary damages

$100,000

Past loss of earnings

$400,000

Interest on past loss of earnings

$43,200

Future psychotherapy sessions

$15,000

Future medical expenses

$10,500

TOTAL:

$818,700

Procedural background

Throughout the conduct of the court proceedings, the plaintiff's name has been anonymised and suppression orders have applied to prevent the identification and public reporting of the proceedings in a way which might identify the plaintiff. Until 7 February 2023 similar orders remained in place regarding the anonymisation of the defendant's name and suppression of public reporting of the proceedings in a way which might identify him. On 7 February 2023, for reasons I published that day, I lifted the suppression orders insofar as they applied to the defendant for the reasons set out in ZYX (pseudonym initials) v Cable [No 3].[11] Therefore in these reasons I will not refer to the plaintiff by her name or by her anonymised initials but will refer to her simply as the plaintiff. No disrespect is intended. I will also refer to the defendant, Mr Barry Thomas Cable, as the defendant or Mr Cable for consistency purposes.
[11] ZYX (pseudonym initials) v Cable [No 3] [2023] WADC 10.
Four lay witnesses gave evidence in the trial in which they spoke about their own experiences of being sexually abused or assaulted by the defendant. I also made orders anonymising their names and suppressing the reporting of the court proceedings in a way which might tend to identify them. When referring to their evidence I will refer to them by their anonymised initials to protect their identities.
As I explained in my reasons in ZYX (pseudonym initials) v Cable [No 3], on 12 December 2022 Mr Cable filed a notice of intention to act in person and his solicitors withdrew from the proceedings. Mr Cable elected to take no active part in the court proceedings or in the trial which commenced on 8 February 2023. The court was informed he relied on his amended defence filed 14 September 2022 when he was legally represented. Notwithstanding Mr Cable's expressed intention not to participate in the trial, I directed that transcript of each day's proceedings be provided to him to the email address he gave in his notice of acting in person which, as it transpired, was the email address of his son, Mr Shane Cable. Any written submissions filed by the plaintiff were served on Mr Cable by emailing it to the given address.
By email dated 14 February 2023 to Mr Shane Cable from my Associate, the defendant was informed that if he wished to make oral submissions, he was permitted to have his son appear with him to assist him, but he would need to appear in person. He was also informed that if he wished to make written submissions in response to any submissions made by the plaintiff, he was permitted to have his son assist him with those submissions, but he would need to sign the submissions himself.
On 17 February 2023, the last day of the trial, Mr Cable filed brief written submissions signed by him which are incorporated into these reasons.[12]
[12] See [340] below.

The pleadings

By a further reamended statement of claim dated 13 February 2023, filed during the course of the trial, the plaintiff pleaded:[13]
[13] The paragraphs which were deleted when the statement of claim was amended have not been included.
4.From in or about mid 1968 until in or about mid 1973 the Defendant was in contact with the Plaintiff ('the childhood contact').
PARTICULARS OF THE CHILDHOOD CONTACT
a.In or about July 1968, the Defendant, his wife and their infant son moved into a house located at [an address] ('the Defendant's Gooseberry Hill home').
b.In or about July 1968 the Plaintiff resided with her parents and siblings at [an address], Gooseberry Hill.
…
d.On about 11 October 1969 the Defendant moved to a home in Thornlie in the State of Western Australia. In the years afterwards the Defendant moved to other homes in Thornlie or nearby suburbs ('the Defendant's subsequent homes').
e.The Plaintiff attended the Defendant's Gooseberry Hill home and later the Defendant's subsequent homes.
f.During the childhood contact:
i.it was commonplace for the Plaintiff to visit the Defendant and/or the Defendant's wife and/or the Defendant's infant son at the Defendant's Gooseberry Hill home and at the Defendant's subsequent homes;
ii.The Defendant visited the Plaintiff and her family at their Gooseberry Hill home;
…
…
v.the Plaintiff regularly looked after the Defendant's infant son at the Defendant's Gooseberry Hill home and the Defendant's subsequent homes; and
vi.the Plaintiff would regularly spend time in close physical proximity to the Defendant at the Defendant's Gooseberry Hill home and subsequent homes without any other adult supervision or control.
5.During the childhood contact the Defendant sexually abused the Plaintiff.
PARTICULARS OF THE CHILD SEXUAL ABUSE
a.In about mid to late 1968 the Defendant was alone with the Plaintiff in the Defendant's carport the Defendant told the Plaintiff words to the effect that:
i.he would teach her about the facts of life and the birds and the bees;
ii.he would teach her so she would be a big hit with men;
iii.he would be a good coach for her;
iv.he would teach her because the Plaintiff was his big girl and it would be good for her;
b.In about mid to late 1968, whilst alone with the Plaintiff, the Defendant regularly asked the Plaintiff words to the effect that:
i.Whether the Plaintiff knew about babies;
ii.Whether the plaintiff knew about sex;
iii.Whether the plaintiff touched herself; and
iv.If the Plaintiff had any pubic hair.
c.Whilst alone with the Plaintiff, the Defendant made comment to the Plaintiff about the size of her breasts and the size of her legs.
d.Whilst the Plaintiff was at the Defendant's Gooseberry Hill home, the Defendant walked around in only his underpants in the presence of the Plaintiff;
e.On occasion whilst the Plaintiff was at the Defendant's Gooseberry Hill home, the Defendant exposed his penis to the Plaintiff.
f.From in or about early 1969:
i.The Defendant forced the Plaintiff to fondle his penis;
ii.The Defendant instructed the Plaintiff as to how to masturbate him;
iii.The Defendant regularly forced the Plaintiff to masturbate him;
iv.The Defendant regularly masturbated in front of the Plaintiff;
…
vi.The Defendant, when talking with the Plaintiff, frequently referred to his penis as his 'totem pole'.
g.Whilst the Defendant was residing at his Gooseberry Hill home, the Defendant insisted the Plaintiff accompany him in his car. Whilst together in his car and whilst the car was stationary, the Defendant removed his shorts and underpants, fondled and groped the Plaintiff insisted the Plaintiff masturbate him and pushed the Plaintiff's face into his groin and asked for oral sex.
h.On two occasions whilst the Defendant was residing at his Gooseberry Hill home, the Defendant drove the Plaintiff to a scenic driving location in Gooseberry Hill known as 'Zig Zag'.
i.On the first occasion, the Defendant:
1.Pulled off the main road and parked on a bush track;
2.Removed his underwear;
3.Fondled and groped the Plaintiffs breasts and genitals;
4.Forced the Plaintiff to masturbate him.
ii.On the second occasion, the Defendant:
…
2.Pulled off the main road and parked on a bush track; and
3.Forced the Plaintiff to masturbate him.
i.During the period of the childhood contact, and whilst the Defendant was residing at his Gooseberry Hill home and his subsequent homes, he regularly:
i.fondled and touch the Plaintiff's breasts and genitals;
ii.rubbed himself on the Plaintiff and pressed his erection against her;
iii.forced the Plaintiff to touch his groin and exposed his penis to the Plaintiff.
j.From in or about 1968, when the Defendant was residing at his Gooseberry Hill and subsequent homes, the Defendant regularly took the Plaintiff, her sister and sometimes the Defendant's son to swim at the Thornlie swimming pool. During that time:
i.The Defendant would touch the Plaintiff whilst they were swimming in the water in the pool in her groin area and by grabbed the Plaintiff's breasts with his hands;
ii.The Defendant took the Plaintiff to the reception area of the pool facility, where he raped the Plaintiff by forcing his penis into her vagina and then ejaculated over her genital area.
k.From in or about October 1969 the Plaintiff was regularly invited to the Defendant's homes, during which visits the Defendant frequently fondled and groped the Plaintiff;
l.On one occasion when the Defendant was residing in the Defendant's home, the Defendant:
i.Entered the living room one evening and sat next to the Plaintiff on the floor whilst her sister was asleep on the lounge;
ii.Put his hands inside the Plaintiff's pyjamas and underwear;
iii.Began touching her on her genital area;
iv.Began fondling her breasts.
m.On 1 January 1971 whilst in the backyard of the Defendant's home, the Defendant fondled and groped the Plaintiff's breasts.
n.On 2 August 1971 the Defendant took the Plaintiff to the Perth Football Club in Lathlain. He took the Plaintiff into the football changerooms where they were alone. Whilst they were in the changerooms, the Defendant:
i.Pushed the Plaintiff up against a wall and started to kiss her;
ii.Groped the Plaintiff's chest;
iii.Rubbed himself against the Plaintiff and pressed his erect penis against her;
iv.Forced the Plaintiff onto a bench;
v.Attempted to rape the Plaintiff by attempting to force his penis into her vagina;
vi.Forcefully pressed his penis onto the Plaintiff's stomach;
vii.Forced the Plaintiff to masturbate him; and
viii.Struck the Plaintiff across the mouth as he was driving her home afterwards.
o.On 29 April 1972 as the Defendant drove the Plaintiff home, the Defendant pulled over and parked his car, and then groped the Plaintiff's breasts and genitals and forced her to masturbate him.
p.On 20 June 1972 as the Defendant drove the Plaintiff home from the Channel Seven television studio in Tuart Hill, the Defendant pulled over and parked his car, and groped the Plaintiff's breasts and genitals and forced her to masturbate him.
q.Frequently, the Defendant would threaten the Plaintiff that he would sexually abuse the Plaintiff's younger sister if the Plaintiff did not comply with his instructions or properly appreciate his attention.

In response, by his amended defence, the defendant pleads:
As to paragraph 4:
(a)the defendant denies any allegedly illegal or improper contact between the plaintiff and the defendant summarised in the statement of claim as 'childhood contact';
(b)the defendant admits sub-paragraphs 4(a), 4(b), and 4(d);
(c)the defendant admits the plaintiff attended the Gooseberry Hill Home and his home in Thornlie as pleaded in sub-paragraph 4(e) but says further that:
(i)the plaintiff, on occasion, attended at the Defendant's Gooseberry Hill home to babysit the defendant's son;
(ii)the defendant was either:
A.during summer working at Thornlie pool; or
B.at all other times training with the Perth Football Club;
(iii)the defendant was never alone with the plaintiff as the defendant's wife was always present when the plaintiff was present; and
(iv)the plaintiff only attended the defendant's home in Thornlie on two occasions and did not attend any of the defendant's subsequent homes.
(d)the defendant denies paragraph 4(f)(i);
(e)the defendant denies paragraph 4(f)(ii) and says further that the defendant only attended the plaintiff's Gooseberry Hill home on one occasion for tea with his wife and the plaintiff's parents;
(f)the defendant denies paragraph 4(f)(v) and further says that:
(i)defendant's wife was the primary caregiver to their children and looked after the children ~90% of the time; and
(ii)the plaintiff only looked after the defendant's children twice after they had moved out of the Defendant's Gooseberry Hill home; and
(g)the defendant denies paragraph 4f(vi) and further says that if the plaintiff was at the defendant's Gooseberry Hill home, or one of the defendant's subsequent homes, the plaintiff would have been in the company of the defendant's wife.
By par 5 of his amended defence the defendant denies each paragraph in par 5 of the further reamended statement of claim and, relevantly, further pleads:
…
(h)5(h) and sub-paras (i) parts 1 to 4 thereof inclusive, (ii) 1 to 3 inclusive are denied and the defendant says further that the defendant regularly attended the 'Zig Zag' for fitness training, including on Sunday mornings with members of his football team, however the defendant never took the plaintiff to the 'Zig Zag';
…
(j)5(j)sub-paras (i) - (ii) inclusive are denied and the defendant says further that while the defendant was the manager of the Thornlie pool, he did not take the plaintiff, her sister and his son to the Thornlie pool while it was not open to the public;
(k)in relation to sub-paragraph 5(k), which is denied:
(i)the plaintiff was not regularly invited to the defendant's home;
(ii)if the plaintiff was at the defendant's home, she would have been accompanied by the defendant's wife;
(iii)in October 1969 the defendant was engaged in intense training as he had had a conversation with the North Melbourne President, Ron Joseph, earlier in the year and it was agreed that the defendant would be joining North Melbourne in the VFL the following year
…
(n)5(n) sub paras (i) - (vii) inclusive are denied and the defendant says further that, apart from training two nights a week and football matches, if the defendant was at Lathlain Park other adults would also be in attendance;
(o)5(n)(viii) is denied and the defendant further says that after 400 games of league football in which he was the target of calculated violence from opposition players, he has never been reported for striking, retaliation or rough conduct;
(p)5(o) is denied and the defendant further says that:
(i)the 1972 football season had begun by April 29, which was a Saturday;
(ii)the defendant played East Fremantle in East Fremantle on 29 April 1972;
(iii)the defendant arrived to watch the reserves at 12.30pm, with his game beginning at 2.30pm;
(iv)prior to the reserves game, the defendant would have been preparing for the match as he was both player and coach at the time;
(v)after the game, which would have finished at 5.30pm, the defendant would have showered and then met with assistants as a part of his role as player/coach;
(vi)the defendant would not have finished at East Fremantle football club until 7pm at the earliest and it is highly likely the defendant spent further time at the club after that; and
(vii)even if the defendant did leave the East Fremantle football club at 7pm, he would not have arrived at the Thornlie home until after 7.30pm.
(q)5(p) is denied and the defendant further says that:
(i)as 20 June 1972 was a Tuesday, he would have attended football training at Lathlain Park; and
(ii)the defendant would not have attended the Channel Seven television studio in Tuart Hill on a day that he had football training;
…

Findings of criminal conduct - Standard of proof

When in a civil proceeding a question arises whether a crime has been committed, the standard of proof is on the balance of probabilities but, having regard to the principles explained in Briginshaw v Briginshaw,[14] weight is given to the presumption of innocence and exactness of proof is required.
[14] Briginshaw v Briginshaw (1938) 60 CLR 336.
Weir v Tomkinson[15] was an appeal from a decision of the District Court awarding damages to the respondent with respect to his claims for trespass to the person (battery), false imprisonment and malicious prosecution. Ground 1 of the notice of appeal, in reliance on Briginshaw v Briginshaw, argued that because of:
[15] Weir v Tomkinson [2001] WASCA 77.
(a)the very serious nature of the allegations made by the respondent (plaintiff);
(b)the inherent unlikelihood of the defendant (appellant) having committed a crime; and
(c)the gravity of the consequences flowing from the plaintiff's allegations,
the trial judge failed to have regard to the need for there to be clear and cogent proof of the allegations. Kennedy J (Wallwork & Murray JJ agreeing) by reference to Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd[16] explained the relevant principles as follows:[17]
In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170, at 171, Mason CJ, Brennan, Deane and Gaudron JJ, having cited the passage from Briginshaw regarding the consideration of the seriousness of an allegation, commented:
'There are, however, circumstances in which generalisations about the need for clear and cogent evidence to prove matters of the gravity of fraud or crime are, even when understood as not directed to the standard of proof, likely to be unhelpful and even misleading.'
They observed that, in that case, it was so, and at 172, they went on to say:
'When an issue falls for determination on the balance of probabilities and the determination depends on a choice between competing and mutually inconsistent allegations of fraudulent conduct, generalisations about the need for clear and cogent proof are likely to be at best unhelpful and at worst misleading. If such generalisations were to affect the proof required of the party bearing the onus of proving the issue, the issue would be determined not on the balance of probabilities but by an unbalanced standard. The most that can validly be said in such a case is that the trial Judge should be conscious of the gravity of the allegations made on both sides when reaching his or her conclusion. Ultimately, however, it remains incumbent upon the trial Judge to determine the issue by reference to the balance of probabilities.'
Their Honours, having commented that the trial Judge dealt with the matter on the balance of probabilities, and that he was correct in doing so, continued:
'The judgment contains no express reference to any requirement of clear, cogent or strict proof. However, in a context where the issue in the case had effectively resolved itself into which of Karajan (acting through the personal respondents) and Neat Holdings (acting through Mr Gundill) had been guilty of deliberate falsification of its records of takings, the omission of any such reference neither involves nor indicates error on his Honour's part. To the contrary, the particular circumstances of the present case and for the reasons which we have given, any such reference would have been unhelpful.'
[16] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170.
[17] Weir v Tomkinson [39].
Kennedy J held there was nothing in the trial judge's reasons for decision to indicate that he was unaware of the seriousness of the competing allegations and had not erred.[18]
[18] Weir v Tomkinson [40].
I acknowledge the seriousness of the allegations made by the plaintiff against the defendant in this case. I adopt my reasoning in Quine v Keerasawat.[19] In that case, the defendant pleaded he did not owe a duty of care to the plaintiff when the plaintiff was a passenger in a motor vehicle driven by him because he (the defendant) and the plaintiff were jointly engaged in an illegal enterprise being the illegal use of a stolen motor vehicle. I concluded:[20]
In summary, the defendant must prove on the balance of probabilities the plaintiff committed an offence of unlawful use of a motor vehicle contrary to s 371A of the Criminal Code and that the plaintiff and the defendant were together engaged in a joint illegal enterprise. In deciding whether a crime has been committed I should feel an actual persuasion of its occurrence and such a conclusion should not be reached without the exercise of caution and unless the evidence survives careful scrutiny and appears precise and not loose and inexact: Briginshaw v Briginshaw (361 - 363, 368) (Dixon J). I should not draw an inference adverse to the plaintiff unless I accept that the circumstances give rise to a reasonable and definite inference, not merely to conflicting inferences of equal degree of probability, the plaintiff committed a criminal offence.
[19] Quine v Keerasawat [2014] WADC 150; (2014) 87 SR (WA) 17 [63] - [70].
[20] Quine v Keerasawat [70].
Transposing the reasoning in Quine v Keerasawat to the circumstances of this case, I accept I should not make a finding the defendant sexually abused the plaintiff when she was a child unless I feel an actual persuasion of its occurrence and I should not reach such a conclusion without having carefully scrutinised the evidence which appears to be precise and not loose and inexact. That task would normally be easier in a case such as this where essentially the only evidence is the evidence of the plaintiff given in examination-in-chief where she has not been cross‑examined and when the defendant, except for denying the allegations of child sexual abuse, has not otherwise participated in the trial and has not himself given evidence contesting the plaintiff's evidence as to the happening of various incidents said to constitute child sexual abuse. However, for reasons I will explain, that has not proved to be the case.

Legal basis of the action

This action is able to be brought against the defendant because of amendments to the Limitation Act 2005 (WA) and the Civil Liability Act 2002 (WA) (CLA) which came into effect on 1 July 2018. The action is brought pursuant to pt 2A of the CLA.
Section 6A(2) of the Limitation Act makes special provision for child sexual abuse actions by removing the limitation period.
By s 3A of the CLA, item 1 of the table, the only section of the CLA which applies to the assessment of damages is s 10A, which permits the court, if it wishes, to refer to earlier decisions of this court or other courts for the purposes of establishing the appropriate award for non‑pecuniary loss. Accordingly, the plaintiff's claim for damages is to be assessed having regard to normal common law principles without regard to the restrictions and limitations imposed by the CLA.

Background

The plaintiff was born on 30 August 1955 and is therefore aged 67.
The plaintiff is the eldest of three children born to her parents. She has a younger sister. Her younger brother passed away in January 2022. Her father passed away in April 2007. Her mother is still alive and gave evidence at a hearing on 7 September 2022.
After the plaintiff and her family returned to Perth in December 1965, having lived in Switzerland for six months, they moved into and lived at [an address], Gooseberry Hill. In or about July 1968 the defendant, his wife, Helen, and then baby son, Barry, moved into and lived in a house at [an address], Gooseberry Hill, across the road from the plaintiff's home.[21]
[21] Reamended statement of claim, pars 4(a) and 4(b), admitted in par 4(b) of the amended defence.
On or about 11 October 1969 the defendant and his family moved from Gooseberry Hill to a home in Thornlie.[22]
[22] Reamended statement of claim, par 4(d), admitted in par 4(b) of the amended defence.
The plaintiff first met and came into contact with the defendant while they were each living in [the same street] in mid-1968.
The defendant was born on 22 September 1943[23] and is therefore aged 79. From mid-1968 to early 1973, when the plaintiff says she was sexually abused by the defendant, he was aged from 24 to 29.
[23] Reamended statement of claim, par 2, admitted in par 1 of the amended defence.
During the 1960s and 1970s the defendant was a well known and highly regarded footballer in both Western Australia and Victoria playing in the WAFL and then Victorian Football League (VFL) football competitions. Later, in the early/mid 1980s, he coached in the VFL.

Plaintiff's police statement - Plaintiff's evidence

In opening, counsel for the plaintiff applied for leave to adduce the plaintiff's evidence by the tendering of a statement she made to police and signed on 21 October 1998[24] in which in the last paragraph she declares:
… that this statement is true to the best of my knowledge and belief and that I have made this statement knowing that if it is tendered in evidence I will be guilty of a crime if I have wilfully included in this statement anything which I know to be false or that I do not believe is true.
[24] Exhibit 2, plaintiff's police statement, dated 21 October 1998.
The statement was signed by the plaintiff and witnessed by a police constable on 21 October 1998. I gave the plaintiff leave to adduce her evidence in that way providing she read the statement in court following which the statement would be tendered in evidence. Accordingly, the plaintiff read the statement which became exhibit 2. Once the statement was read counsel asked further questions of the plaintiff to clarify various matters referred to by the plaintiff in her statement and also to reflect changed circumstances since the statement was signed, such as the death of her father and her brother. Counsel also adduced further evidence from the plaintiff relevant to issues not addressed in the police statement such as damages and medical treatment received by the plaintiff.
With the benefit of hindsight, it was an unsatisfactory way to proceed and undermined the proper presentation of the plaintiff's case. The statement is poorly drafted, containing many inconsistencies and contradictions and often not going into sufficient detail in relation to various matters which would normally be required and expected in these type of court actions, particularly having regard to the long delay between the occurrence of the alleged events and the matters coming to trial. There are often unexplained gaps in the recounting of what is alleged to have happened. While there appears to have been an attempt to set out events chronologically, the statement often jumps back and forth between periods, and it is often confusing as to what period of time is being referred to. It is apparent the statement has been prepared in segments over time but when further information has been added to it, the writer of the statement has not gone back to what has earlier been written to ensure what is added is consistent with what has already been included.
The language used to describe what it is alleged the defendant did to the plaintiff is unhelpful. The statement is littered with statements that the defendant 'would have' done something. The expression the defendant 'did his usual thing' is often referred to.
The statement was prepared by a police officer for the purposes of a police investigation. It was not prepared for the purposes of civil litigation. Nor would it have been intended that the statement become an exhibit in a civil trial or form the basis of the plaintiff's evidence at trial in a claim she has brought against the defendant many years later. Even had the defendant been charged with criminal offences and the matter proceeded to a criminal trial, the statement would not have been tendered in evidence but would have formed the basis for the prosecutor to examine the plaintiff at the criminal trial. Of course, the defendant would have been provided with a copy of the statement pursuant to the State's disclosure obligations.
The plaintiff said that after she saw an Australian Story programme of Mr Cable, it took her a couple of years to work up the courage to contact the police. She did so because she understood Mr Cable was still working with vulnerable children and wanted to report the child sexual abuse she had endured because she was afraid the abuse might be continuing.[25] She telephoned and spoke to a person she believed was a police officer before later attending the Adelaide Terrace Police Station in Perth. She met with several police officers and was questioned before she was requested to provide a statement.[26] She was then assisted by a police constable and other police officers, to prepare the statement, which was prepared over several months. The statement was typed out by the police constable.[27]
[25] ts 294.
[26] ts 295.
[27] ts 296.
In preparation of the statement the plaintiff provided her diaries to police. After her statement was completed at some stage the police returned the diaries to her. She thought the diaries were probably returned to her in about 2000 before the Royal Commission into Police Corruption (the Police Royal Commission).[28]
[28] ts 375.
Following the Police Royal Commission, and when the plaintiff and her husband moved homes in 2005, she decided the diaries were of no further use and because they caused her distress, she burnt all of the diaries she had.[29] However, she later found some diaries which she had given to her lawyers in amongst a box of photographs, which she did not realise she had retained.[30] Amongst those diaries were her diaries from 1970 to 1972, extracts of which were tendered into evidence.[31]
[29] ts 375.
[30] ts 376.
[31] Exhibits 3 - 5; ts 378.
In the preparation of the statement she was assisted in her memory, particularly as to dates, by diaries she had kept.[32] She had kept diaries from about the age of 10.[33] Where she has referred to specific dates when she says the incidents occurred, the source for those dates was her diaries but they were not the source for the actual details of what she said occurred on a specific date.[34] She recorded day to day activities in her diaries such as appointments and tasks she needed to complete but did not record details of the sexual abuse about which she gave evidence.[35] She said the source of her memory about the specific dates was her diary entries but not in relation to the actual details of the sexual abuse.[36] So, for example, where at par 107 of her police statement she said the defendant and Helen left for Victoria on 26 January 1970, she relied on the entry in her diary to refresh her memory about the date.[37]
[32] ts 373.
[33] ts 296.
[34] ts 373.
[35] ts 374.
[36] ts 373.
[37] ts 374.
When the statement was finalised, she was given a copy to review, and when she was satisfied its contents were true and correct she signed the statement.[38] She retained a copy of the statement.[39]
[38] ts 297.
[39] ts 298.

I make no criticism of either the plaintiff or the police officer who prepared the statement. It was prepared for different purposes, nearly 24 ½ years ago. In my view, a properly detailed statement or proof of evidence should have been taken from the plaintiff by her solicitors for the purposes of this civil action rather than relying on a statement prepared many years ago for a police investigation when civil proceedings would not have been contemplated. I would expect a properly detailed statement or proof of evidence to specifically deal with issues relevant to the civil proceedings commenced in 2019, particularly having regard to the need for the evidence to be precise and not loose and inexact if a finding is to be made in a civil action that a crime has been committed.[40] Drafted by lawyers it would be expected that language such as 'would have' would not have been used.
[40] As explained in Briginshaw v Briginshaw.
While I acknowledge the plaintiff did not anticipate the matter proceeding to trial on an essentially undefended basis where she would not be cross‑examined, and was expecting to have to give viva voce evidence and be cross‑examined, I would still have expected her solicitors to have prepared a detailed statement or proof of evidence, which would have had regard to the issues raised in the pleadings and in any intended documentary evidence such as medical reports. Not to have done so is, in my view, a lazy way to prepare for and conduct litigation. That is especially so in circumstances which exist here concerning historical allegations of child sexual abuse going back over 50 years when memories have necessarily faded and become unreliable. If the concern was about the plaintiff being retraumatised by having to talk about and relive the trauma of the child sexual abuse, that is an unavoidable consequence of the litigation, especially in these types of cases. Normally a plaintiff would be subject to cross‑examination, particularly if liability is denied, which is likely to be traumatic and cause anxiety. Besides undermining the effective presentation of the plaintiff's case, a failure to take a proper proof of evidence is likely to exacerbate the trauma and anxiety a plaintiff will experience at trial. A full and proper understanding of the plaintiff's case, including an assessment of any weaknesses, can only, in my opinion, be gained by the taking of a detailed proof of evidence. The taking of a proper proof of evidence is likely to assist in the efficient presentation of the plaintiff's case and, importantly, is likely to assist the court in the determination of the issues at trial.
Nor do I make any criticism of the plaintiff or draw any adverse inference against her because she destroyed some of her diaries and later found some other of her diaries which she had not realised she had retained. I accept her explanation that the diaries were a cause of distress and were of no further legal use to her once the Police Royal Commission inquiry was finalised. It is understandable she destroyed the diaries, or thought she had destroyed all of her diaries. The fact that she later found some of the diaries does not give me any cause for concern.
I would also have expected a properly prepared statement or proof of evidence for the purposes of these proceedings to have referred to the diaries explaining their relevance and how they were used by the plaintiff to refresh her memory about specific dates when she says incidents of child sexual abuse occurred although she has not detailed the incidents in her diary.
Further, given the police statement was made approximately 30 years after the plaintiff initially came into contact with the defendant, and then she is asked to give evidence, by adopting her police statement made and signed over 24 years before she gave evidence in the trial, causes me to have reservations about the reliability and accuracy of her evidence in some respects. Has she simply come to believe that what she has said in the statement has occurred and is the truth and is simply repeating what is contained in the statement, or does she actually have a memory about these events and what she says occurred when the defendant sexually abused her when she was a child?
The difficulty is compounded by there being no contradictor in the trial, no one representing the defendant. The lack of cross-examination of the plaintiff to test her evidence and explore perhaps any inconsistencies and contradictions in the statement that she made in 1998, which became her evidence in 2023 by her adoption of the statement, has made the task of making findings about what occurred over 50 years ago more difficult. Various issues and inconsistencies in the plaintiff's evidence and in her police statement which may have been highlighted in cross‑examination, but which were not apparent at the time she gave her evidence, have only emerged upon closer analysis of the evidence in the writing of these reasons.
Unlike here, in ZAB v ZWM[41] (upon which the plaintiff relies and which also concerned historical allegations of child sexual abuse) where the evidence of the witnesses was permitted to be given by affidavit and the plaintiff adopted the contents of the police statement he made in 2014, which the trial judge described as a thorough account of his recollections of the sexual abuse,[42] the defendant had pleaded guilty to and been convicted of sexual offending against the plaintiff. The defendant had also initially been represented by solicitors but after they ceased to act for him he took no further part in the proceedings and, as is the case here, failed to attend court when representing himself and to cross‑examine the plaintiff.[43] The plaintiff in ZAB v ZWM adopted the contents of his police statement which was tendered as an exhibit. The trial judge, Blow CJ, 'unreservedly' accepted the plaintiff's evidence as to the defendant's conduct.[44]
[41] ZAB v ZWM [2021] TASSC 64.
[42] ZAB v ZWM [5].
[43] ZAB v ZWM [33].
[44] ZAB v ZWM [10].
Unlike in this case, the defendant in that case had been convicted of a criminal offence in relation to the same conduct which formed the basis of the civil action brought against the defendant. The police statement which formed the basis of the plaintiff's evidence in that case was, in my view, far better drafted than the plaintiff's police statement in this case and does not contain the inconsistencies, contradictions and gaps in the reciting of the occurrence of incidents that the plaintiff's police statement has in this case. Further, the police statement in that case clearly explains why there are difficulties in memory and why certain incidents were able to be remembered and others were not, unlike in this case. The statement clearly explained how a pattern of behaviour commenced and was able to continue. It clearly explains the nature and extent of the abuse alleged, unlike in this case.
The unreliability of the plaintiff's memory is not just associated with the period of time which has elapsed since the events, about which the plaintiff gave evidence, are alleged to have occurred. The reliability of her memory is also affected by the harm which she has suffered as a result of child sexual abuse which I will explain in more detail later in these reasons. The harm which the plaintiff has suffered, particularly post-traumatic stress disorder (PTSD), has impacted upon the reliability of the plaintiff's memory because as a self-protective factor she disassociated herself with what was happening to her, causing her to suffer from some level of amnesia and to question whether the events really happened or whether she imagined them.[45] The expert psychiatrist called by the plaintiff, Professor Riley, said the plaintiff had suffered catastrophic damage as a result of the child sexual abuse and further explained:[46]
[45] Professor Riley, ts 498.
[46] ts 499; ts 499 - ts 500; ts 502 - ts 503.
… But another important characteristic of this thing is - including the dissociation, which we might talk about, there's amnesia. And what happens is, difficulty remembering, or patchiness of this - of - of the symptoms and memory. So it looks to some - an outsider that there might be times when she's seemingly okay, at other times she'll be very, very dysfunctional.
…
Yes. And in the course of that answer, professor, you mentioned this notion of dissociation?‑‑‑Mm.
Are you able to expand upon how that applies in the context of ZYX's case?‑‑‑Yeah. It's a - it's a difficult thing to describe, and the history of psychiatry kind of has struggled with it, and it's the terms - a lot of these terms in psychiatry have been - have changed their meaning over time. So hysteria, for example, has been mixed in, in textbooks that I grew up with in the - perhaps in the '70s. Mixing up the word 'dissociation', for example, with things like conversion disorder, hysteria and so on.
Yes?‑‑‑So it's important to make the distinction that - that - that the - the understanding of dissociation I'm talking about is - is modern - - -
Yes?‑‑‑ - - - and understanding what was happening to her at the time. So dissociation where a state where you - in a context of extreme threat, extreme horror; traditionally combat, rape, and now, to an increasing extent, very early childhood sexual abuse - - -
Yes?‑‑‑ - - - causing someone to switch it off so that they can become unable - well, the traditional things are things like sound goes away, so there's no noise. There might be flashing lights and various things like that. But - but mostly the critical idea is emotion stops altogether. If there's an - if it's an accident or something, pain stops as well. It's all switched off at the base of the brain. And so the - it's a - it's a dreamlike state. The person goes into sort of what's - you know, might be call la‑la land and those kind of experiences.
Yes?‑‑‑A - a zombie state. So - and the point is, of course, it's taking away - it's a defence against what - the horror that's happening to you. And many people describe sort of, in these contexts, you know, just looking at a particular thing in the wall and - and ZYX did the same; just focusing on something and waiting for it to all finish.
Yes?‑‑‑So the dissociation aspect is critical but it's very important, and often not understood, that the amnestic effect is terrible important, because it makes someone look more scatty than they even are - - -
Yes?‑‑‑ - - - despite all the other symptoms.
…
How does it work? It's the dissociation that is the key feature that - that - that causes someone to switch off in - in that instance of severe threat and that process of - of dissociation separates you out - as I say, it switches it off so that you're not experiencing it and you're - you fell into another state. And the modern understanding of that particularly is why I mentioned this dissociative identity disorder, which isn't what ZYX suffered from.
Yes?‑‑‑But the - the phenomenon of dissociation involves this idea of amnesia so you forgot what - on purpose as it were or unconsciously. I mean, it's suppressed, the - so there is no memory if - if possible, but it doesn't work. And so it keeps re‑emerging, particularly the slightest trigger and so on. And that - that repeated stress at that extreme level which causes this switching off is understood to change the brain, quite literally, and - but it's not fully understood at that - at this stage. But there's no question that that link is there and the - and the amnesia comes back from time to time along with any - any of the other triggers.
Yes?‑‑‑And it also links to each of those other things that I said, the - the inability to modulate emotion at all times, all of these things fluctuate and are patchy in a sense. Sometimes she's good, sometimes you know they're functioning and can manage well, but at other times it's - they can't. So the - the absolute answer to your question is not - you know, it's not there yet, to be honest.
That expert evidence underlines the need for a thorough proof of evidence to have been taken from the plaintiff, exploring and testing the reliability of her memory, what she can remember and why. Had the defendant been represented at trial those matters were likely to have been the subject of cross-examination as part of the testing of the plaintiff's evidence.
None of this is the plaintiff's fault and she is not to be criticised for the way in which her evidence was adduced.
The plaintiff is essentially the only witness to the happening of the alleged child sexual abuse to which she claims she was subjected by the defendant, Mr Cable. Because of the crucial nature in this case of her evidence and because of the seriousness of the allegations she makes against Mr Cable, I need to scrutinise her evidence with care, notwithstanding, indeed perhaps more so because of, the absence of representation on behalf of Mr Cable and the absence of a contradictor.
I take carefully into account these events, the allegations of child sexual abuse, are alleged to have happened over 50 years ago.
The plaintiff was a child at the time, aged from 12 to 17 when the events are alleged to have occurred. The longer the delay, the more opportunity there is for error and particularly that is so for events occurring in childhood.
Human memory is fallible and honest witnesses can be wrong in their recollection. It is a matter of common experience that the longer you believed something to have happened the more convinced you are that it has happened. This can be so even if you are mistaken in your recollection. The long passage of time can harden a fantasy or semi‑fantasy into absolute conviction of reality.[47]
[47] Longman v The Queen (1989) 168 CLR 79, 107 - 108 (McHugh J).
In this case, that common experience is amplified by the reliance upon a police statement prepared 30 years after the initial events are alleged to have occurred and over 24 years before the plaintiff gave evidence by adopting and reading the contents of that statement which was tendered into evidence as an exhibit.
As Mr Cable did not, except for relying on his amended defence and in filing some brief written submissions on the last day of the trial, participate in the trial, there is no forensic disadvantage identified by him to which I need to have regard. Indeed from his reasonably detailed amended defence the plaintiff seems to have been able to source various records and refer to dates when he says certain events occurred.

Some examples of the unreliability of the police statement

Throughout the statement the plaintiff says the defendant 'would' or 'would have' done certain things. It is often unclear whether she was talking about an isolated incident or conduct which routinely occurred, so that when she signed the statement the plaintiff was unable to remember each specific occasion when something happened, or whether she was talking about a pattern of conduct which developed in which the defendant routinely acted towards her in a sexual way or routinely had her commit sexual acts upon him. While to some extent her use of such language, and what she was describing, was clarified and elaborated upon during her evidence, nevertheless some confusion and uncertainty as to exactly what the plaintiff said the defendant did to her, or forced her to do to him, remains. For example, at pars 45 to 56, the plaintiff describes the defendant forcing her to masturbate him or give him oral sex when they drove to purchase fish and chips. It is unclear whether the plaintiff is describing a particular incident or is describing a pattern of conduct which developed over time and continued over an extended period.
The description of when conduct occurred, or specific incidents happened, is often not set out sequentially and time periods are jumbled. For example, par 43 states the defendant 'always' pulled his pants down to mid‑thigh or his knees but then goes on to say 'or he would take them off all together' which is inconsistent. Paragraph 44 goes on to state that when the defendant ejaculated, he ejaculated into her hand and at times he would neither ejaculate or orgasm because someone would be coming. The plaintiff describes this conduct in the context of describing what the defendant did to her in the 'second phase' of his 'lessons' which started during the 1969 pre‑football season. At this point she is yet to describe any incidents which she says occurred in which the defendant conducted himself in the way described. She later goes on to describe what occurred during the period when scratch matches were played and then during the regular football season when she regularly accompanied the defendant in his car when they drove to the Kalamunda fish and chips shop.
It is unclear from her statement whether the plaintiff was referring to how the defendant conducted himself during the trips to the fish and chips shop during the period when scratch matches were played, and then during the regular football season, whether she was describing conduct which occurred before then, or whether she was describing such conduct occurring throughout the football season but on occasions other than the regular Saturday night trips to the fish and chips shop.
The plaintiff's evidence in relation to these paragraphs of her police statement was not clarified. In the absence of clear or precise evidence that the defendant conducted himself in this way towards the plaintiff on occasions other than the regular Saturday night trips to the fish and chips shop, I infer the plaintiff was only referring to the regular trips to the fish and chips shop on Saturdays during the football season and not to any other occasions.
In par 61 the plaintiff states that the defendant and his wife left Gooseberry Hill for Thornlie in October 1969 but then in par 63 refers to an incident occurring in September 1969 at the Thornlie swimming pool. The plaintiff's statement does not explain whether the date of the defendant leaving Gooseberry Hill is significant, and if so how, in relation to her memory of the incident she describes occurring at the Thornlie swimming pool in September 1969. She then goes on to refer to matters occurring while the defendant was still living in Gooseberry Hill. Later, in par 94, she says the Cables left Gooseberry Hill on 11 October 1969 and moved to Thornlie, in contrast to the earlier date she gave as simply October 1969.
In par 92 the plaintiff states that when the defendant was annoyed, like that day, 'he wouldn't finger me, or touch me under my clothes'. However, she did not previously, or subsequently, in the statement say that the defendant 'fingered' her or explain what she meant by that.
In par 116 the plaintiff talks about a specific incident, and states that she remembers that night well but goes on to say, 'Barry would come up behind me and put his arm around me and fondle my breasts' (emphasis added). Her use of 'would' suggests this type of conduct had occurred previously and had occurred regularly but the plaintiff did not give that evidence. It raises the question whether the plaintiff does actually have an independent recollection of that night, and was saying that on that night the defendant regularly came up behind her, put his arm around her and fondled her breasts, or whether she was talking about such conduct having regularly occurred on other occasions.
The plaintiff said she relied upon an entry she made in her diary for 1 January 1971[48] for her identification of the date as 1 January 1971, even though she did not make any mention of the incident in her diary. The plaintiff read into evidence what she had written in her diary:[49]
[48] Exhibit 4.
[49] ts 379 - ts 380; ts 380 - ts 382; ts 388 - ts 390.
And you will see in the diary entry for Friday 1, being New Year's Day, are you able to read out that entry, please?‑‑‑Yes:
Mass. Cables came up and picked me up for a few days! (weeks) with Lyn. Saw Joe and Josie. Went to bed at 1.30 pm as we talked and spied on the parties next door - doors.
Is it possible that the 1.30 pm might have been 1.30 am?‑‑‑Absolutely.
And did you - was it - did you - for the purposes of making your statement, you'll see - if I ask you just to put that to one side - you'll see in your statement there paragraph 114 through to 116, you talk about there your evidence as to what happened on that - on that night?‑‑‑Yes.
And I'd suggest that none of that appears in the excerpt you've just - none of that evidence appears in the excerpt that you've just read out?‑‑‑Yes. Yes.
And is it the case again that the diary - for the purposes of making your statement and giving your evidence, the - the diary entry was a trigger for your memory as to what happened after that?‑‑‑Yes.
…
HERRON DCJ:   Can I just seek this clarification from you, ZYX? As I understand your evidence, you've agreed with Mr Hammond or at least you've said yes to his question that this entry in your diary dated Friday, 1 January 1971 triggered in your mind the incident which is set out in paragraph 116 of your statement on page 25. You haven't put anything in your diary about that incident. How does your diarising of what you've set out in the - the entry on 1 January 1971 trigger a memory of what you said happened that night?‑‑‑Yes.
And, Mr Hammond, do you have a difficulty with me asking that question?
HAMMOND, MR:   No, I don't.
HERRON DCJ:   Yes?‑‑‑No. No. Lyn was from Melbourne staying there. There were parties that I remember. It was hot. We were outside in the garden. I remember the incidents very well because they just imprinted in my mind and the diaries sometimes just remind me the reference that many instances I recall like they happened yesterday. I just - they're actually in my body, in my memory kind of.
Yes.
It's a matter for you, Mr Hammond. I'm loath to get too involved in asking questions. I only ask questions to the extent that I need to to clarify the answers given and it's a matter for you of course as to how far you go. But do I need to know more evidence about who Lyn Saunders is in relation to ZYX? The evidence as I understand it so far is each of them slept over at the Cable's house that night.
Do I need to know was this a usual thing? It's a New Year's Eve, New Year's Day. What was Lyn Saunders to the Cables to ZYX? How did it come about that this happened relevant to that question I first asked, what triggers - triggers in ZYX's mind this incident arising out of a diary entry, 'The Cables came and picked up me for a few days/weeks with Lyn'?
HAMMOND, MR:   Yes.
HERRON DCJ:   Do you - have I made myself clear as to why you might want to ask more questions about that? If - as an example if this - yes, I'm not talking about the described incident, I'm talking about the night - this had happened once rather than on a regular basis, this being slept over, Lyn Saunders came over, that sort of thing. That might have an impact upon any findings I might make regarding the reliability of - of memory.
HAMMOND, MR: Right, yes.
HERRON DCJ:   I'm still just trying to understand how the fact of ZYX being picked up from her home with Lyn Saunders, sleeping overnight at the Cables triggered in her mind this incident she goes on to describe.
HAMMOND, MR:   Yes. Yes. Thank you, your Honour.
HERRON DCJ:   Have I - have I explained ‑ ‑ ‑
HAMMOND, MR:   Yes.
HERRON DCJ:   ‑ ‑ ‑ why that sort of questioning might assist me?
HAMMOND, MR:   Yes, I think - I think so, your Honour.
HERRON DCJ:   Yes.
HAMMOND, MR:   Thank you.
ZYX, when it came to preparing your statement in 1998, what was it about - do you remember what it was about that date that caused you to expand upon what happened to you on that date in your statement?‑‑‑Yes.
How did that work? So what was it that caused you to do that?‑‑‑To remember. Lyn Saunders, I understood from the Cables, was their babysitter in Victoria.
Right?‑‑‑And she had come over being invited for a holiday and they thought I would get on well with her, so they invited me to stay over.
Yes?‑‑‑And she was a year older than me and a nice person and Cables did not socialise a lot or have parties, so there was - it was a hot evening. There was a - there were a - there were parties.
Yes. I - I don't mean to interrupt. I understand what the memory is, but I'm interested in understanding I think what was it about that event that has triggered for you the extra information that you've put into your statement? What in particular caused you to remember that event?‑‑‑That - that I just remember because he touched me.
In a sexual way?‑‑‑In a sexual way and I remember seeing him touch Lyn, so I remember - that's the association.
Right. So just ‑ ‑ ‑?‑‑‑From the diary to ‑ ‑ ‑
Just in relation to what you've just said there, and you remember seeing him touch Lyn, can you expand upon that, please?‑‑‑I remember him touching her - can't - on the bottom and we were playing - watching the neighbours and listening to the music over the fence. There was a tree and in our shorter pyjamas ‑ ‑ ‑
Yes?‑‑‑ ‑ ‑ ‑ and he was, when he could, poking me with his hands on my bottom or ‑ ‑ ‑
So - so is this - it was the sexual nature of the interaction that caused ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ the trigger?‑‑‑Yes.
Is that right?‑‑‑Yes.
…
HERRON DCJ:   And before you move on to any more diary entries, if that's your intention, Mr Hammond, can I take you back to paragraph 114 - paragraphs 114 ‑ ‑ ‑
HAMMOND, MR:   Yes.
HERRON DCJ:   ‑ ‑ ‑ to 116 - 116 in particular at the top of page 25, and there's been a fair bit of evidence about this before lunch and ZYX's given evidence why she remembers that incident that's described as occurring on the date she's indicated. Can I go to how the evidence is and how it's set out in the police statement exhibit 2? She says:
I remember that night well.
And then goes on to say:
Barry would come up behind me and put his arm around me and fondle my breasts.
It's that language, 'would come up behind me' that troubles me a little bit.
HAMMOND, MR:   Yes. Yes.
HERRON DCJ:   Given we're talking about on one year a specific incident.
HAMMOND, MR:   Yes. Thank you.
I'm not sure if you heard that exchange or not, ZYX?‑‑‑Not all - not ‑ ‑ ‑
I'm sorry?‑‑‑I would like you to ‑ ‑ ‑
Sure. So what his Honour indicated was to this effect. Do you see on the top of page 25?‑‑‑Yes.
Three lines down it says:
I remember the night - that night well.
?‑‑‑Yes.
The language used after that is:
Barry would come up behind me and put his arm around me and fondle my breasts.
Do you see that?‑‑‑Yes.
Is that something he did on that night?‑‑‑Yes.
And it's fair to say that in quite a number of parts of your statement you use the word 'would' in relation to something that Mr Cable ‑ ‑ ‑?‑‑‑Would do.
‑ ‑ ‑ perpetrated?‑‑‑Yes.
My question is when you use the word 'would', did you mean - do you mean that he actually did that?‑‑‑I do mean that.
Where you refer to that in your statement?‑‑‑Yes. Yes.

At par 128, the plaintiff said that on 23 July 1971 she spent the weekend at the Cable home and the defendant 'did his usual thing'. She relied on an exclamation mark recorded in her diary which she said means that the defendant did his TV routine where he would make her lie down next to him and he 'would' touch her. Having asked the plaintiff to explain what she meant by the use of the word 'would' in par 116, counsel took her to par 128 regarding her expression that the defendant 'did his usual thing'. The plaintiff explained:[50]
And so for instance if I can take you to paragraph 128?‑‑‑Yes.
And that paragraph is a paragraph we have covered before where we discussed Mr Cable's - your use of the language to describe sexual abuse in the terms of Mr Cable's usual thing. You see that?‑‑‑Yes.
And you'll see that the sentence after that in paragraph 128 says:
I know this because in my diary entry there is an exclamation mark which means that Barry did his TV routine where he would make me lay down to him - make me lay down next to him and would touch me.
Is that what he did to you on that particular occasion?‑‑‑Would means did.
[50] ts 390.
However, the plaintiff did not give any evidence that after the end of 1969 the defendant routinely acted towards her in a sexually inappropriate way, noting that her evidence is that the defendant and his family left Perth for Victoria on 26 January 1970 and did not return to Perth until 1 September 1970. The plaintiff did not say in her police statement, nor did she give evidence, that throughout 1971 she regularly spent the night at the defendant's house when he regularly sexually touched her while the two of them watched TV together. The plaintiff's police statement only refers to intermittent contact with the defendant during 1971, not all of which involved the defendant acting sexually inappropriately towards the plaintiff. The plaintiff did not give evidence that after the defendant returned to Perth, the regular or routine sexual conduct which she described occurring during the 1969 football season in Gooseberry Hill, recommenced. She only gave evidence about intermittent contact with the defendant after September 1970 and during 1971.
Further, at par 131 of her statement the plaintiff says the defendant telephoned her at her home on Sunday, 1 August 1971 at 7.30 am and 'would have' spun her some yarn about Helen being unwell or little Barry missing her so she 'would go over'. She then goes on to talk about a specific incident that happened that night while she and the defendant were watching TV. It is the next day, 2 August 1971, when the plaintiff says the defendant took her to the Perth Football Club and penetrated, or attempted to penetrate, her vagina with his penis.
When she was asked to clarify what she meant by her use of such language, the plaintiff explained:[51]
[51] ts 355 - ts 356.
Can I take you to paragraph 131? You talk about at the start of that paragraph:
On Sunday, 1 August 1971 Barry phoned me at the home at 7.30 am.
Do you see that there?‑‑‑Yes.
Then you go on over the page at paragraph 132 to say:
That Sunday night Barry did his usual TV thing to me.
?‑‑‑Yes.
And when you've said 'The usual TV thing to me' are you talking about what we've just discussed?‑‑‑Yes. Yes.
So the same pattern of behaviour with the sexual ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ touching? The same ‑ ‑ ‑?‑‑‑Yeah.
‑ ‑ ‑ period of time in terms of maybe five to 10 minutes?‑‑‑Yes.
HERRON DCJ: Before you move onto another paragraph, Mr Hammond, just at the beginning of that paragraph there's a precise date and precise time in the first sentence. And then the second sentence starts:
He would have.
HAMMOND, MR:   Yes.
HERRON DCJ:   How is it that there's such a precise date, a precise time and yet the second sentence the language is being used 'He would have done it'. It might suggest there's uncertainty about it and her memory's not - ZYX's memory's not reliable about what did happen.
HAMMOND, MR:   Yes.
HERRON DCJ:   And in one sense it might be said there's a contradiction there, that she can be so precise about a date and a time ‑ ‑ ‑
HAMMOND, MR:   Yes.
HERRON DCJ:   ‑ ‑ ‑ and yet she goes onto say 'He would have spun me some yarn'. So can ZYX actually remember that?
HAMMOND, MR:   Yes.
HERRON DCJ:   Is she talking about a pattern of behaviour that this is what normally happened? What's being said there?
Except for this incident on 1 August 1971, the incident on 1 January 1971, the incident on 23 July 1971, and the Perth Football Club incident on 2 August 1971, there is no clear evidence that the defendant acted sexually inappropriately towards the plaintiff from late January 1970 until the school social incident on 29 April 1972 when she says the defendant made her masturbate him in his car after he picked her up from the school social. Except for that incident, and the Channel 7 incident on 20 June 1972, there is no evidence the defendant acted sexually inappropriately towards the plaintiff during 1972.
Referring to the incident on 2 August 1971 in her police statement the plaintiff, at par 141, said:
I often used to say to Barry to stop as he was hurting me.
The use of such language is again confusing. It suggests this type of incident, where the defendant attempted to sexually penetrate the plaintiff by inserting his penis into her vagina, occurred often. The plaintiff gave further evidence about par 141 as follows:[52]
[52] ts 361 - ts 362.
HAMMOND, MR:   Are you able to recall the length of time in which he tried to penetrate your vagina with his penis at that time?‑‑‑Some minutes.
At paragraph 141, you say:
I often used to say to Barry to stop as he was hurting -
‑ you. You see that there?‑‑‑Yes.
And when you say he was hurting you or, 'He was hurting me', what do you mean?‑‑‑Trying to insert his penis ‑ ‑ ‑
Okay. So where was he ‑ ‑ ‑?‑‑‑ ‑ ‑ ‑ into me.
Right. Where was he hurting you?‑‑‑In my - my vagina and being on top of me and just being on top of me and pushing and ‑ ‑ ‑
HERRON DCJ:   It's not clear to me, Mr Hammond, from that paragraph - it's expressed:
I often used to say.
We're here talking about an incident ‑ ‑ ‑
HAMMOND, MR:   Yes.
HERRON DCJ:   ‑ ‑ ‑ as I understand it.
HAMMOND, MR:   Yes.
HERRON DCJ:   And it says:
I often used to say.
It's not clear to me is ZYX talking about this incident. It's just not expressed well. Or is she saying, 'This sort of activity happened on other occasions ‑ ‑ ‑
HAMMOND, MR:   Yes.
HERRON DCJ:   ‑ ‑ ‑ and I would generally say this'?
HAMMOND, MR:   Yes. Yes. No. Thank you, your Honour.
ZYX, just in relation to that paragraph, is it your evidence that you said that to Mr Cable to stop it as - to stop it as he was hurting you when you were at the Perth Football Club?‑‑‑Yes. Yes, it was.
And - yes, it was?‑‑‑Yes, it was.
And did you say that to him at other times as well?‑‑‑Yes, I did.
And in relation to those other times, were those other times that he was also trying to penetrate you with his penis?‑‑‑Yes.
And in addition to those times of attempted penetration, as well as - as those, did you also ask him to stop hurting you at other times of sexual abuse as well?‑‑‑Yes, I did. I did. I would - I don't remember not saying to stop and even when he was inserting his fingers into my vagina ‑ ‑ ‑
Yes?‑‑‑ ‑ ‑ ‑ and sometimes pinching my breasts.
So you would often ask him to stop at other times as well?‑‑‑Yes.
And did he stop when you asked him to?‑‑‑No.
That evidence suggests the defendant regularly sexually penetrated the plaintiff, both penile and digital sexual penetrations, when she always told him to stop. However, the plaintiff did not refer in her police statement to the defendant trying to sexually penetrate her with his penis on any other occasions. Her evidence when asked to clarify what she meant by the expression 'I often used to say' is inconsistent with her police statement. Further, and as I have previously noted, she does not say in her police statement that the defendant inserted his fingers into her vagina. The plaintiff's evidence that there were other occasions on which she had been sexually penetrated by the defendant, either penile or digital penetration, was not further elaborated upon or clarified in her evidence. Except for the Thornlie swimming pool incident in September 1969, the plaintiff did not in her police statement refer to any other instances of sexual penetration.
The plaintiff's claim as pleaded, and as opened and closed upon, is that there were only two occasions in which the defendant attempted to sexually penetrate her by attempting to insert his penis into her vagina, the Thornlie swimming pool incident and the Perth Football Club incident. Despite the plaintiff's evidence, it is not pleaded that the defendant tried to penetrate her vagina with his penis on other occasions. Nor that he digitally sexually penetrated her. In response to a request during closing submissions that the court be provided with a precise statement of the nature and instances of child sexual abuse relied on by the plaintiff,[53] the court was provided with a document simply cross-referencing the plaintiff's evidence to the pleaded allegations in par 5 of the statement of claim. The only instance of sexual penetration of the plaintiff, that is penetration of her vagina, referred to is the Perth Football Club incident on 2 August 1971. The Thornlie swimming pool incident in September 1969 is not mentioned.
[53] ts 642 - ts 643.
The position is unsatisfactory. I do not accept the plaintiff's evidence that there were multiple occasions in which the defendant tried to sexually penetrate her vagina with his penis or digitally penetrated her vagina with his fingers.
The next time the plaintiff says the defendant acted sexually inappropriately towards her at his house was on 30 March 1973 when she spent the night at the Cable house and she and the defendant watched TV when he 'took me through his usual'.[54] It is difficult to reconcile her use of the words 'his usual' or 'I often used to say' when the evidence is that the defendant only acted sexually inappropriately towards her on isolated occasions from the end of January 1970 to the end of March 1973.
[54] Exhibit 2, plaintiff's police statement, dated 21 October 1998, par 180.
The plaintiff then left Perth for Switzerland on 31 June 1973. Noting the plaintiff turned 18 on 30 August 1973, there is no evidence, other than on the night of 30 March 1973, the defendant was sexually inappropriate towards the plaintiff during 1973 when she was a child. Certainly, as I have already explained, the plaintiff did not give evidence that after January 1970, when the defendant lived in Victoria for the 1970 football season, returning to Perth in September 1970, that a pattern resumed of the defendant regularly sexually abusing her. While, at times during her evidence there are references, suggestions or hints by the plaintiff that the defendant was regularly, or at least more frequently than isolated incidents, sexually abusing her when she was a child, the evidence is not sufficiently clear or precise which positively persuades me the defendant was regularly sexually abusing the plaintiff when she was a child. The plaintiff's pleaded case does not claim there was a pattern of repeated sexually inappropriate conduct by the defendant to the plaintiff when she was a child after the end of the football season in September 1969. Although at times the plaintiff described other sexual conduct happening such as the defendant inserting his fingers into her vagina, that evidence was never explored with the plaintiff and she was not asked to elaborate upon that evidence.
Nor was the evidence of Professor Riley regarding the self‑protective behaviour of disassociation or amnesia and its possible impact on the plaintiff's memory of what she says the defendant did to her explored.
Although it is not part of the plaintiff's case that she was regularly sexually penetrated by the defendant, in case I have misunderstood the basis of the claim, I find the plaintiff was not regularly sexually penetrated by the defendant, either by him inserting his penis or fingers into her vagina or attempting to insert his fingers or penis. However, the plaintiff's evidence of these matters occurring, when they do not form a basis of her claim, undermines the reliability of her memory as to the frequency and type of child sexual abuse to which she says she was subjected by the defendant.

History provided to treating health professionals

A further matter which causes me to have some reservations regarding the reliability of the plaintiff's memory of what she says happened to her is the history of the child sexual abuse she has provided to her treating psychologist, Dr Jones, and her earlier general practitioner, Dr Kirkman.
In her first report addressed to the police constable dated 27 October 1998, Dr Jones recorded the following history of the sexual abuse provided to her by the plaintiff:
… From the outset, she remembered many incidents of abuse that were frequently carried out under the guise of 'caring' and that, according to [ZYX], were accompanied by a conviction that 'he was doing it for her own good.' For instance, she would be frequently coerced to go with him to collect takeaway food on a Saturday night and en route, would be forced to 'suck him off' in the car. She described how such acts were always 'hurriedly carried out in a mechanistic, exploitative way' and how he would 'push her head down to avoid being seen by passing traffic.' She explained that on many other occasions Mr Cable took her to the Perth Football Club change rooms where sexual penetration occurred in much the same way as it did in pubs, or in his home, or wherever an opportunity presented itself. [ZYX] explained that what started out with Mr Cable's 'befriending' of her family, who were next door neighbours, progressed to 'persistent, opportunistic and degrading acts of sexual abuse' that left her psychologically and emotionally overwhelmed and forced to flee overseas as a 17 year old, in order to disentangle herself from the situation.
In her more recent report to the plaintiff's solicitor, Mr Magazanik, dated 24 February 2020, Dr Jones recorded the following history provided to her by the plaintiff:[55]
According to [ZYX], routines were established which opened up opportunities for the alleged perpetrator to enact the abuse. For example, she reports often feeling pressed into going with him to collect 'fish and chips' on a Saturday night and in the car en route, she described how she would be forced to 'suck him off.' [ZYX] went on to say how these acts were carried out in a forced, mechanistic, exploitative way and of how Mr Cable would 'push her head down' to ensure she would not be seen by passing traffic. She states that in early adolescence, she 'lost her virginity' to Mr Cable at a local Swimming Pool where he was employed as an attendant. On other occasions, she said that Mr Cable took her to the Perth Football Club where sexual penetration occurred as it did at other locations, including at pubs, at his home, and where ever the circumstance arose. All this occurred from about the age of eleven years onwards when [ZYX] was below the age of consent.
[55] Exhibit 1.12, Dr Jones' medical report, dated 24 February 2020, pages 83 - 84, trial bundle.
The plaintiff did not give evidence she 'lost her virginity' to the defendant at the Thornlie swimming pool. Nor did she give evidence that on multiple occasions the defendant sexually penetrated her at the Perth Football Club and at other locations including at pubs and at his home.
In relation to the Saturday night fish and chips shop routine, the plaintiff's evidence is that the defendant was not that into oral sex and he mainly forced her to masturbate him with her hand but occasionally forced her to perform oral sex on him. Dr Jones did not record a history of the plaintiff telling her the defendant regularly forced her to manually masturbate him in the car during those trips.
Of course, there being no contradictor in the case there was no cross‑examination of either the plaintiff or Dr Jones to test their evidence and explore any possible inconsistencies. While, in my view, there are clear inconsistencies between the history Dr Jones says she took from the plaintiff and the plaintiff's evidence about these matters, it is difficult to form a view as to whether those inconsistencies are significant in relation to the assessment of the credibility of the plaintiff and the reliability of her memory of what she says the defendant did to her when she was a child.
Although Dr Jones recorded a history that the sexual abuse started from the age of 11, which is clearly wrong, and again although there was no one to cross-examine her about that, I do not regard that error as significant in the assessment of the reliability and credibility of the plaintiff's evidence.
On one view, the fact that the plaintiff did not give evidence that she 'lost her virginity' to the defendant, or that there were multiple occasions on which the defendant sexually penetrated her, supports her credibility because she did not exaggerate the extent and nature of the child sexual abuse. As I have earlier observed, although at times the plaintiff referred to other sexual conduct such as digital penetration occurring regularly, and there are suggestions or hints that the sexual abuse was occurring more frequently than on isolated occasions, the plaintiff's pleaded case does not claim there was the regularity of sexual abuse that Dr Jones said was reported to her by the plaintiff.
In his report to the police constable of 7 October 1998, Dr Kirkman does not detail the types of sexual activity the plaintiff informed him the defendant engaged in with her but states:
… my recollection is that it began when she was approximately nine years old and continued until her family moved.
Clearly that recollection is inaccurate, both as to how old the plaintiff was when the child sexual abuse commenced and that it continued until her family moved. However, while that recollection is inconsistent with the plaintiff's evidence, I do not regard it as a significant inconsistency or as impacting upon the plaintiff's credibility or reliability as a witness.

Child sexual abuse - The evidence

The plaintiff

Gooseberry Hill - 1968

The plaintiff and her younger sister met the defendant while walking past his house when he was gardening in the front yard of his house. The plaintiff did not know who the defendant was until informed by another neighbour that the defendant was a good footballer. She learned that he played for the Perth Football Club and then used to read about him in the newspaper.
The plaintiff's interaction with the defendant commenced with her and her sister helping him with the gardening of his front yard and doing odd jobs for him. Later, she and her sister started to take the baby Barry for walks in his pram and then began babysitting the baby. Initially, her mother also assisted with the babysitting.
Over time during 1968 the plaintiff's and Cable families became friendly and interacted with each other. The plaintiff was frequently at the defendant's house. She was sometimes invited by Helen to play with the baby and watch television at the Cable home. Helen was often unwell, and the plaintiff was asked to babysit baby Barry.
The plaintiff also cared for the baby when the defendant was away from his house particularly when he was at football training or playing.
The plaintiff's relationship with the Cable family became so close that by the Christmas holidays of 1968 once a week Helen took the plaintiff with her when Helen visited her mother's home in Bentley so that the plaintiff could care for the baby.
The defendant frequently complimented the plaintiff and started calling her and her sister his special girls. He often referred to the plaintiff as 'my big girl' or 'my special girl'. He rarely called her by her name.

Because the amount awarded for past loss of earnings is not crystallised at any precise point in time during the period when the loss was suffered, it is not appropriate to make any specifically calculated award of interest on that award pursuant to s 32 of the Supreme Court Act1935 (WA) in respect of that period. However, as the past loss of earnings had been fully suffered or accrued by 30 August 2021 when the plaintiff turned 66, which is the end date to which the plaintiff claims damages for loss of earnings,[436] I am of the view pre-judgment interest pursuant to s 32 of the Supreme Court Act should be awarded on the sum of $400,000 at a rate of 6% from 30 August 2021 to the date of judgment, 16 June 2023, a period of 665 days or approximately 1 year 10 months, or 1.8 years. The calculation is therefore as follows:
$400,000 x 6% x 1.8 years = $43,200.
[436] Province Leader of the Oceania Province of the Congregation of the Christian Brothers v Lawrence [2021] WASCA 77.

Aggravated and exemplary damages

By par 15 of her re-amended statement of claim, the plaintiff pleads that after she was an adult the defendant continued to maintain unwanted contact with the plaintiff which caused an aggravation of the injuries suffered by her as a result of the child sexual abuse as follows:[437]
[437] Plaintiff's reamended statement of claim, dated 13 February 2023, par 15.
Further to the above, from 1974 until 1991 the Defendant continued to make contact with the Plaintiff ('the post-childhood contact'):
PARTICULARS
a.In or about 1975 the Defendant often arrived without invitation at a flat in Florence Street, Leederville, where the Plaintiff was occasionally residing, causing the Plaintiff to become increasingly fearful and intimidated of the Defendant.
b.On 8 October 1977 the Defendant took the Plaintiff to the Parmelia Hilton Hotel for dinner. Whilst in the Defendant's hotel room, the Defendant forcefully inserted his penis into the Plaintiff's vagina.
c.On 14 March 1978 whilst at the East Perth Football Oval on Lord Street, the Defendant fondled and groped the Plaintiff's breasts and genitals while she was sitting in his car.
d.In June 1978, whilst the Plaintiff was at the East Perth Football Oval dropping some car keys to the Plaintiff, the Defendant forced the Plaintiff up against her car.
e.In or about 1978 the Defendant often arrived without invitation at the Plaintiff's home in Maylands, causing the Plaintiff to become increasingly fearful and intimidated of the Defendant.
f.The Defendant suffered significant leg injuries following a tractor accident on 25 October 1979. In late 1979 and in early 1980 the Plaintiff was retained by the Defendant as his private nurse. Whilst the Plaintiff was providing nursing care to the Defendant in his home, he would:
i.Expose his erect penis to her whilst he was being showered, requesting that the Plaintiff touch his erection; and
ii.Push the Plaintiff's head into his groin when the Plaintiff was drying his legs.
g.In or about 1980 the Defendant often arrived without invitation at the house where the Plaintiff was house sitting in South Perth, causing the Plaintiff to become increasingly fearful and intimidated of the Defendant;
h.In about 1981 the Plaintiff was living with a male partner. The Defendant regularly telephoned the Plaintiff and enquired of the Plaintiff about the Plaintiff's sex life.
i.On 29 October 1983 the Defendant arrived without invitation at the Plaintiff's home in Kelmscott. After inviting himself into the Plaintiff's home, the Defendant inserted his penis into the Plaintiff's vagina.
j.On 7 March 1988 the Defendant arrived without invitation to the Plaintiff's home in Kalamunda. The Plaintiff refused to let him inside her home. The visit caused the Plaintiff to become increasingly fearful and intimidated of the Defendant.
k.From 1974 until 1991 the Defendant would regularly telephone the Plaintiff to proposition her about meeting with him.
l.On 18 March 1991 whilst the Plaintiff was at work at the Crisis Care Unit in East Perth, she unexpectedly came into contact with the Defendant. After conversing with the Plaintiff, the Defendant walked with the Plaintiff to her car, at which time the Defendant attempted to touch her and he pressed his body against her.[438]
[438] Although the plaintiff gave evidence that on an unidentified date the defendant rang her and directed her to go to the Chateau Commodore Hotel in the Perth city where the defendant had sex with her, the incident is not pleaded.
By par 17 of her reamended statement of claim the plaintiff pleads:[439]
Further, the Plaintiff claims aggravated and/or exemplary or punitive damages against the Defendant as a result of the sexual abuse and/or the post childhood contact.
PARTICULARS OF EXEMPLARY, PUNITIVE AND/OR AGGRAVATED DAMAGES
a.The sexual assault and child sexual abuse of the Plaintiff by the Defendant was a severe breach of trust and constituted exploitative and criminal behaviour. The behaviour was predatory, in contumelious disregard of the Plaintiff and her rights to a safe and happy childhood, and constituted an unequivocal breach of the trust vested in the Defendant by the Plaintiff, and is deserving of condign punishment.
b.The Defendant's breach of duty of care and/or the Defendant's intentional torts as pleaded at above, and/or the post childhood contact, showed a contumelious disregard of the Plaintiff and her rights, and constituted an unequivocal breach of the trust given to the Defendant by the Plaintiff and is deserving of condign punishment.
(emphasis added[440])
[439] Plaintiff's reamended statement of claim, dated 13 February 2023, par 17.
[440] Despite the plaintiff reamending the statement of claim to delete the cause of action based on a breach of a duty of care, this plea was not amended accordingly.
The plaintiff claims both exemplary and aggravated damages. In relation to exemplary damages, the plaintiff submits an award of exemplary damages should be made to 'mark the disapprobation of the court in relation to the sustained and brutal child sexual abuse inflicted upon [the plaintiff]'.[441]
[441] Plaintiff's reamended outline of written closing submissions, par 501.
The plaintiff also submits an award of aggravated damages is appropriate on the basis that the child sexual abuse was perpetrated when the defendant was a neighbour of the plaintiff and was a famous and revered community member who was trusted by the plaintiff's family. While the defendant continued to enjoy the respect of the public, he continued, it is submitted, to stalk and harass and sexually abuse the plaintiff into her adulthood. He was only able to do that because of the damage caused to the plaintiff by the child sexual abuse which made her vulnerable and submissive to the defendant's ongoing sexual approaches.

Exemplary damages - The law

I adopt my explanation of the law regarding exemplary damages in Lawrence.[442] I said:[443]
Exemplary damages are given over and above compensatory damages to punish the defendant, and to mark the court's disapprobation and denunciation of the conduct, in circumstances involving a deliberate, intentional or reckless disregard of the plaintiff's rights. They are rarely awarded. The object of exemplary damages is not wholly punishment but is also directed to deterrence, both against the actual wrongdoer and to other likeminded persons. The intent or recklessness necessary to justify an award of exemplary damages may be found in contumelious behaviour which falls short of being malicious.
[442] Lawrence [1032] - [1035]; see also Cunningham v Traynor [826]; Carter v Walker [284].
[443] Lawrence [1032].
However:[444]
It is necessary, … in such cases, to be wary of overcompensation. There is a risk in awarding both compensatory and punitive damages, arising out of exactly the same wrongdoing, that the plaintiff will receive an unwarranted windfall. That risk is accentuated by the recognition that, in reality, there can be a punitive element in aggravated damages.
(footnotes omitted)
[444] Carter v Walker [285].
In Backwell v AAA,[445] Ormiston JA (with whom Brooking JA agreed) considered whether, in awarding exemplary damages, the award of compensatory damages should be taken into account said:
… In this respect there seems nothing in the authorities which would deny consideration of the amount which the defendant will have to pay by way of compensatory damages, if they are sufficient to inflict adequate punishment. Such a principle may be seen to be more apposite where the damages are wholly or in part at large, such as in defamation, trespass, false imprisonment and the like and it may be less easy to apply where the ordinary damages are not at large, as in the present case. But in each case the question emphasised in all the authorities is that exemplary damages must be calculated by considering what is appropriate to punish the defendant, whereas compensatory damages are calculated upon the basis of what is sufficient to satisfy the plaintiff's claim. It is recognised that the plaintiff obtains a windfall benefit but that is not inappropriate if it is necessary to punish the defendant for his or her conduct. It is said to act as a general deterrent but nevertheless a deterrent which is appropriate to the defendant's own behaviour and situation. If the ordinary damages already awarded are sufficient to impose a punishment, then the plaintiff cannot fairly complain if no more is added.
(original emphasis)

Aggravated damages - The law

[445] Backwell v AAA [1997] 1 VR 182, 207 - 208.

As to aggravated damages, I again adopt what I said in Lawrence as follows:[446]
Aggravated damages, in contrast with exemplary damages, are compensatory in nature, being awarded for injury to the plaintiff's feelings caused by insult, humiliation and the like.

Findings

[446] Lawrence [1052], referencing Lamb v Cotogno (1987) 164 CLR 1.

I am of the view that it is appropriate to award exemplary damages, over and above the general damages I have awarded for pain and suffering and loss of amenities, to mark the court's disapproval and denunciation of the defendant's conduct in which he repeatedly sexually abused a young girl aged 13 to 17 who was the daughter of his neighbours, whom he had befriended and who trusted him when their daughter was in his company. I also have regard to my earlier finding that he sexually abused the plaintiff when he was a well-known and highly regarded public person because of his sporting ability of which he took advantage and abused the trust of the plaintiff's parents without any regard to the welfare of the plaintiff when she was a young child. His behaviour by repeatedly sexually assaulting the plaintiff when she was a child was contumelious behaviour. By the award of damages I make in favour of the plaintiff it is necessary in part to send a message of deterrence to members of the community, principally men, who are in a position of trust in relation to, and have power over, a child, and who are otherwise regarded as upstanding members of the community, to deter such people from acting in the same way that the defendant did.
Exemplary damages are also awarded as punishment of a person and to deter that person from acting in a similar way in the future. I accept, particularly given his advanced age and the adverse publicity to which he is likely to be subject as a result of these proceedings, the defendant is unlikely to engage in similar conduct again. The opportunity to engage in the type of conduct I have found he engaged in with the plaintiff when she was a child, principally arose because of his respected public profile. It is unlikely the same opportunity to engage in sexual conduct with a child will again arise. However, because the defendant's actions were deliberate and intentional, occurring repeatedly over an extended period where he took advantage of his respected and privileged public profile to sexually abuse the plaintiff when she was a child, an award of exemplary damages is necessary.
In Erlich v Leifer, exemplary damages against the school in the sum of $100,000 were awarded and against the perpetrator, the plaintiff's teacher and principal, $150,000 for exemplary damages were awarded. In my view the defendant's behaviour in that case was more egregious than the defendant's in this case because she was in a greater position of trust as she was a teacher and the principal of the plaintiff.
In Carter v Walker, on appeal, exemplary damages awarded against police officers for causing injury from the use of undue force were reduced to $100,000 against each officer. Again, there was a greater breach of trust in that case because the defendant police officers were performing statutory duties when they harmed members of the public.
In Cunningham v Traynor, each plaintiff was awarded $10,000 in exemplary damages for the assaults upon them by police officers. Each of them was also awarded aggravated damages, largely because of the way in which each of the plaintiffs were cross‑examined and because of the way in which the defendants' cases were conducted against each of the plaintiffs.
In ZAB v ZWM, and many of the other cases cited by the plaintiff, exemplary damages were not claimed or awarded because the defendant had been convicted and punished in the criminal justice system by being sentenced to terms of imprisonment. That is to be contrasted with this case where the defendant has not been charged with any criminal offence and has not been punished for the sexual batteries constituting child sexual abuse he perpetrated to the plaintiff.
In this case, although the defendant's breach of trust by sexually abusing the plaintiff when she was a child is egregious, it is not as great as the breach of trust of a school teacher to a student or a police officer to a member of the public and there is perhaps less need for punishment and deterrence. However, there still remains a strong need for punishment of the defendant and a need for deterrence in circumstances where the defendant was a person with a high and well-respected public profile which caused people to trust him and which provided him with the opportunity to sexually abuse the plaintiff. There is the need to send a message to adult men, who are the principal persons who perpetrate child sexual abuse, that they cannot take advantage of a power imbalance, and the trust children place in them, to sexually abuse those children. While wary of overcompensating the plaintiff, given the egregious nature of the child sexual abuse to which she was subjected by the defendant, I do not consider the awarding of both compensatory and exemplary damages will overcompensate the plaintiff and result in her receiving an unwarranted win fall.
I award $100,000 in exemplary damages.
As to aggravated damages, I am not persuaded it is reasonable or appropriate to award further damages over and above the award of general damages, for pain and suffering, and loss of amenities. I am satisfied the defendant engaged in the so-called post childhood contact with the plaintiff as pleaded by her. I accept the plaintiff felt fearful of and intimidated by the defendant and, arising from the child sexual abuse, remained vulnerable to approaches by the defendant towards her of a sexual nature. I accept that the ongoing contact with the defendant was unsolicited and unwanted. On those three occasions in which the defendant had sex with the plaintiff, on 8 October 1977 at the Parmelia Hilton Hotel, on 29 October 1983 at the plaintiff's home, and on an unidentified date at the Chateau Commodore Hotel in the Perth city (although this incident is not pleaded I accept the plaintiff's evidence that it occurred), the plaintiff did not seek out the contact and only unwillingly engaged in the sexual activity because of her vulnerability to approaches by the defendant and because of a sense of powerlessness which arose as a result of the child sexual abuse she suffered perpetrated by the defendant. However, the contact was relatively intermittent and isolated with significant gaps in between the contact. I am satisfied the award of general damages properly compensates the plaintiff for the injury and damage she has suffered because of the child sexual assaults including feelings of humiliation and worthlessness. I am not persuaded an award for aggravated damages is justified.
I therefore decline to award any further sum for aggravated damages.

Past and future medical expenses

By her particulars of damage the plaintiff claims:[447]
[447] Plaintiff's 'Book of Papers for the Judge', particulars of damage document, pars 7.1 and 7.2.
7.1
a)The Plaintiff has undergone an average of 15 sessions per year of psychotherapy with psychiatrist and/or psychologist since 1991 to the present time, this was funded via private health and/or self‑funding. The Plaintiff claims reimbursement for self-funded treatment and gap payment with her health insurer. The Plaintiff claims the sum of $17,500.00 for past treatment.
b)The Plaintiff has required various medications for her injuries over the years. The Plaintiff's claims the sum of $500.00 per annum for past medication since 1991. The sum $15,500.00 is claimed for past medication: $500.00 x 31 years.
7.2The Plaintiff also claims an indemnity for any refund to Medicare and/or HBF Private Health for expenses incurred in relation her injuries.
(i)The Plaintiff obtained a Medicare Notice of Charge valid to 17 June 2020 in the sum of $4,870.25 for medical treatment related to her injuries.
(ii)The Plaintiff has used medical services of her private health insurer HBF. Details of repayment will be provided prior to any conference.
The plaintiff also claims damages for future treatment and medication expenses as follows:[448]
[448] Plaintiff's 'Book of Papers for the Judge', particulars of damage document, pars 9.1 and 9.2.
9.1Treatment
a)The Plaintiff will require long-term psychotherapy to address her complex trauma experiences. The requirement for ongoing treatment is provided in the report of Consultant Psychiatrist, Dr Laugharne dated 22 July 2019.
b)The Plaintiff claims 20 session of psychotherapy per year for the next 12 years. The current recommended fee for a consultation by the Australian Psychological Society is $267.00 for years 2021/2022. The 6% multiplier for 12 years is 450.5.
The Plaintiff claims the sum of $46,262.88 for future psychotherapy.
9.2Medications
a)The Plaintiff requires ongoing medication for treatment of her psychiatric condition. The Plaintiff refers to the report of Consultant Psychiatrist, Dr Laugharne dated 22 July 2019, with current medication requirements.
b)The weekly cost of the Plaintiff's current medication is $23.84. The Plaintiff's life expectancy is 22 years (ASB Population Projections 2020). The 6% multiplier for 22 years is 647.0. The sum of $15,424.48 is claimed for medication for the foreseeable future.
In her written closing submissions the plaintiff submits she requires long‑term psychotherapy to address her psychiatric and psychological harm as follows:[449]
The Plaintiff claims 20 sessions of psychotherapy per year for the next 12 years. The current recommended fee for a consultation by the Australian Psychological Society is $267.00 for the 2021/2022 year. The 6% multiplier for 12 years is 450.5. The Plaintiff claims the sum of $46,262.88 for future psychotherapy.
[449] Plaintiff's reamended outline of written closing submissions, par 488.
The plaintiff also submits she requires ongoing medication to treat her psychiatric injury and claims:[450]
The weekly cost of the Plaintiff's current medication is $23.84. The Plaintiff's life expectancy is 22 years (ASB Population Projections 2020). The 6% multiplier for 22 years is 647.0. The sum of $15,424.48 is claimed for mediation for the foreseeable future.
[450] Plaintiff's reamended outline of written closing submissions, par 490.

I accept the plaintiff will require some level of ongoing psychological counselling and psychiatric treatment, including a need for medication to treat her anxiety and depression, into the foreseeable future. However, as I have earlier found I think it is likely that once these court proceedings are finalised and when it is likely the plaintiff will not have any ongoing contact with the defendant or any cause to be involved in the further proceedings concerning him, it is likely her mental health condition will stabilise, particularly with the ongoing support of her husband. Although I accept her symptoms will never disappear and she will contact to suffer intrusive thoughts and memories of the child sexual abuse, there is the prospect of further improvement in her condition. Also it is unlikely that as she ages she will need the same level of psychological and psychiatric treatment, and the need for medication, as she currently needs.
I am not persuaded the claim for 20 sessions of psychotherapy per year for the next 12 years is reasonable or justified. The evidence as to the nature and frequency of treatment sought by the plaintiff before the trial is not consistent with the level of treatment it is claimed is needed in the future. What is a reasonable award for future medical care and treatment is, as with any award of damages, a matter of impression.
I allow damages for future psychotherapy costs at 10 sessions per year for the next three years and thereafter for the next seven years at four sessions per year, that is, quarterly psychotherapy sessions. The calculation is as follows:

10 sessions of psychotherapy per year for the next three years 10 x $267 = $2,670 per year = $51.34 per week, but say $50 per week x 143.6 (6% multiplier for three years) $7,180

Four psychotherapy sessions per year for the following seven years 4 x $267 = $1,068 per year = $20 per week x 299.9 (6% multiplier for seven years) x 0.84 (6% multiplier delayed for three years) $5,038

Total $12,218

Which I will round up to a total of: $15,000

In relation to the future costs of medication, I allow a weekly cost of $20 for the next 15 years and the calculation is as follows:
$20 per week x 521.8 (6% multiplier for 15 years) = $10,436, say $10,500.

Summary

In summary I award the plaintiff damages assessed as follows:

General damages

$250,000

Exemplary damages

$100,000

Past loss of earnings

$400,000

Interest on past loss of earnings

$43,200

Future psychotherapy sessions

$15,000

Future medical expenses

$10,500

TOTAL:

$818,700

CONFIDENTIAL ADDENDUM

[Confidential information redacted]

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
KG
Associate to Judge Herron
16 JUNE 2023

General damages	$250,000
Exemplary damages	$100,000
Past loss of earnings	$400,000
Interest on past loss of earnings	$43,200
Future psychotherapy sessions	$15,000
Future medical expenses	$10,500
TOTAL:	$818,700

10 sessions of psychotherapy per year for the next three years	10 x $267 = $2,670 per year = $51.34 per week, but say $50 per week x 143.6 (6% multiplier for three years)	$7,180
Four psychotherapy sessions per year for the following seven years	4 x $267 = $1,068 per year = $20 per week x 299.9 (6% multiplier for seven years) x 0.84 (6% multiplier delayed for three years)	$5,038
Total	$12,218
Which I will round up to a total of: $15,000