Haynes by her tutor Karen Lindley v Haynes

1. [1]

   The plaintiff, Jennifer Haynes, now 52 years old, seeks summary judgment and damages from her father the defendant, for trespass, battery and personal injury in the nature of sexual abuse. The abuse occurred between 1974 and 1981 when Jennifer was 4 to 11 years of age. Jennifer has consented to her identity being known and published (s 578A(4) Crimes Act 1900 (NSW)).

2. [2]

   Jennifer sues through a tutor because the horrific abuse inflicted upon her by her father caused her to develop a dissociative personality disorder known as dissociative identity disorder, (DID), in response to the repeated trauma.

3. [3]

   A number of incidents of sexual abuse were the subject of criminal proceedings. The defendant admitted guilt in respect of a number of these incidents of sexual abuse. He was sentenced by Judge Huggett in September 2019 to an aggregate term of imprisonment of 45 years with a 33 year non-parole period for those admitted abuses. He is not eligible for release from jail until 4 January 2050. Given he is currently 77 years old, it is unlikely he will be alive at the time of potential release.

4. [4]

   By statement of claim filed on 23 April 2019, Jennifer claimed damages for assault and battery, psychiatric and psychological injury as well as aggravated and exemplary damages.

5. [5]

   The claim for exemplary damages initially pleaded in the statement of claim was specifically abandoned at the hearing on 16 September 2021. [1]

6. [6]

   There was also initially a claim made for domestic assistance and loss of earnings, but those heads of damage were unequivocally abandoned at the hearing and the position formalised in the Amended Statement of Particulars filed on 15 September 2021. The damages claim is thus confined to general damages, and, if appropriate, aggravated damages.

7. [7]

   Section 3B(1)(a) of the Civil Liability Act 2002 (NSW) provides relevantly that the provisions of the Act do not apply in respect of civil liability for an intentional act that is sexual assault or other sexual misconduct committed by the person.

8. [8]

   The abuse occurred a very long time ago. This claim can be pursued because of the removal of limitation periods for child abuse actions. This occurred in 2016 by the enactment of the Limitation Amendment (Child Abuse) Act 2016 (NSW). Section 6A effectively removes the relevant limitation period(s) and Clause 9 of Schedule 1 to that Act makes the amendment retrospective.

9. [9]

   It is clear that the defendant is aware of the proceedings, having been served with the statement of claim on 12 May 2019 [2] . He has never filed an appearance or defence or taken any active role to defend the allegations, despite observing various directions hearings before the Registrar. Given those circumstances and the subject matter and nature of the case brought against him, I considered it unnecessary for arrangements to be made by the Court for his AVL attendance for what would have had to have been passive observation of the hearing on 16 September 2021.

10. [10]

    For the reasons that follow, I have concluded that judgment should be entered in favour of Jennifer and damages assessed at $840,000.

The Evidence

1. [11]

   The evidence tendered comprised an affidavit of the tutor, Karen Lorraine Lindley, (Ms Lindley), sworn 9 September 2021, which deposed to the origins of her involvement with Jennifer and outlined Jennifer’s past and current situation.

2. [12]

   The following material was exhibited to the affidavit:

   1. (1)

      A Certificate of Conviction from the Sydney District Court dated 7 September 2021 listing the charges for which the defendant was convicted and sentenced, together with a list of the indicative sentences;

   2. (2)

      The remarks on sentence of Judge Huggett dated 6 September 2019;

   3. (3)

      An expert certificate of Dr G Blair-West, Psychiatrist, dated 17 April 2013;

   4. (4)

      An expert report of Dr G Blair-West dated 12 September 2019;

   5. (5)

      A report of Professor Dianna Kenny, Psychologist, dated 17 July 2017;

   6. (6)

      A report of Ms Karina Johnson, Psychologist, dated 2 July 2021;

   7. (7)

      An expert certificate of Dr Carina Chow, Colorectal Surgeon, dated 16 January 2015;

   8. (8)

      Jennifer’s academic transcript from the University of Queensland;

   9. (9)

      Eight very detailed statements made by Jennifer to the NSW Police, completed on 20 May 2011 in respect of abuses by the defendant committed in 1974, 1975, 1976, 1977, 1978, 1979, 1980 and 1981;

   10. (10)

       A victim impact statement provided at the sentencing hearing before Huggett J;

   11. (11)

       An order of the High Court of Justice, Queens Bench Division, regarding the preservation of assets of the defendant;

   12. (12)

       Completion Statement regarding the sale of property of the defendant in Durham, United Kingdom.

3. [13]

   Whilst formal rulings were not requested or made at the time of the tender of the affidavit, I do not read, and in effect exclude from the evidence items 2, 10, 11 and 12 listed in [12] above.

4. [14]

   In respect of item 2, Huggett J’s remarks on sentence, s 91 of the Evidence Act 1995 (NSW) precludes their admission into evidence. Section 91 provides:

5. [15]

   Her Honour’s remarks on sentence understandably include various findings of fact. Further, the proposed use of the remarks on sentence do not fit within any of the exceptions set out in s 92 of the Act:

6. [16]

   Section 92(2) allows the Certificate of Conviction (item 1) to be tendered and relied upon and so to that extent I have confirmation of the defendant’s convictions for the identified offences. The Certificate alone cannot be used to prove the facts that gave rise to the offences for which he was convicted: s 91(1).

7. [17]

   The defendant did not dispute the Statement of Facts. He entered guilty pleas. There was no appeal from the sentence imposed by Huggett J.

8. [18]

   Section 178 specifically provides for certificate evidence of decisions:

9. [19]

   The Certificate of Conviction is admissible to prove the fact of the convictions, (and so the particular offences), but the indicative sentences included in the Certificate in my view should be excluded from my consideration as they reflect, amongst other things, findings of objective seriousness made by her Honour that underpin her remarks on sentence. Whilst in a different guise and context, such findings are different and separate to the conclusions this Court needs to reach and the findings that must be made in the context of these proceedings for damages.

10. [20]

    Item 10 should be excluded as the role of a victim impact statement is a circumscribed one, relevant to the discrete task of sentencing of the offender. In any event, the statements to police contain a great deal of evidence about how the sexual abuse has affected Jennifer both at the time it occurred and now.

11. [21]

    Items 11 and 12 do not pass the relevance test. Neither document is a matter that could rationally effect, directly or indirectly, the existence of the probability of a fact in issue in the proceedings (s 55 of the Evidence Act). The defendant’s property and asset situation is not an issue in the proceedings.

Background

1. [22]

   Jennifer was born in January 1970 in the United Kingdom. She lived in a town in Kent with her mother, an older sister and younger brother and the defendant. The family emigrated to Australia in 1974 when the plaintiff was four years and four months old.

2. [23]

   The sexual assaults began shortly after arrival and continued when the family moved back to the UK in 1981 when Jennifer was aged 11. Jennifer claims only for assaults that occurred in Australia. Those assaults all occurred at home in Dulwich Hill and Greenacre.

3. [24]

   After divorcing the defendant, Jennifer’s mother returned to Australia with Jennifer and her brother, arriving in November 1988.

4. [25]

   The defendant was extradited from the United Kingdom in February 2017 to face the charges Jennifer levelled against him.

5. [26]

   Jennifer’s initial psychiatric and psychological history is somewhat difficult to piece together because the medical evidence does not commence until 1998 with the involvement of Dr Blair-West. Ms Lindley deposed to having been told by Jennifer that whilst living in the UK Jennifer had sudden blackouts in late adolescence that led to an initial diagnosis of epilepsy. There is no expert material setting out the asserted diagnoses and treatment in the UK. There are no experts named, or reports provided, regarding the asserted treatment for epilepsy by “a number of experts” in Australia after her return in 1988 as asserted by Ms Lindley.

6. [27]

   It is asserted by Ms Lindley that in around 2000, a new diagnosis was identified, namely DID, and Jennifer was referred to Dr George Blair-West [3] for treatment.

7. [28]

   Dr Blair-West prepared a statement in 2013 in which he outlined his diagnosis and treatment of Jennifer between 1998 and 2013. It relevantly stated:

8. [29]

   In 2010 Jennifer was referred to Colorectal surgeon Dr Chow, for management of her severe constipation and anal pain. Dr Chow says in her report that Jennifer outlined some of the abuses that involved insertion into her anus of objects such as crochet hooks, a rolling pin, a hammer, a chisel and a soldering iron that had been switched on. Dr Chow noted that Jennifer had great difficulty opening her bowels and would not do so for up to four weeks at a time and then would have to use aperients and manual evacuation.

9. [30]

   In November 2010 Dr Chow performed a temporary colostomy by keyhole surgery and an endoanal ultrasound under general anaesthetic as the plaintiff was unable to tolerate any anal examination for which she was conscious.

10. [31]

    Dr Chow located a sphincter injury which she stated could have been the result of the anal abuse described. Dr Chow also diagnosed chronic constipation with severe obstructed defecation.

11. [32]

    On further examination in February 2011, Dr Chow discovered a rectocele (i.e., a laxity of the wall between the rectum and vagina) and a tender mobile coccyx which was likely dislocated. Dr Chow noted that rectocele is a common problem with women who have given birth and is also consistent with chronic anal and vaginal penetration like the history of abuse that Jennifer had provided. The dislocated coccyx was also consistent with the history provided but it could also be caused during childbirth or falling heavily.

12. [33]

    Dr Chow stated that due to what she described as “Jennifer’s abiding unwillingness to open her bowels at all”, and after discussion with other colorectal surgeons, pain management specialists and Jennifer’s GP, Jennifer agreed to permanent colostomy. This was performed in May 2011 and entailed the removal of her rectum and anus as well as removal of her coccyx to alleviate pain. Dr Chow stated that in her opinion Jennifer “improved enormously physically and emotionally after the procedures”.

13. [34]

    Jennifer had worked intermittently as an assistance nurse and assistant diversional therapist between 1988 and 1990. She enrolled in the University of Queensland and whilst there undertaking her Doctorate between 2000 and 2005, made some money tutoring. She otherwise has been in receipt of a disability pension, presumably related to her DID although no documents were tendered that evidenced that was the basis.

14. [35]

    Jennifer received $50,000 victims’ injury compensation in 2017. Whilst no documentation about that was tendered, my understanding is that any such payment must be refunded to the Victims Injury Compensation Board or taken into account if there is a successful recovery of damages in a civil case.

15. [36]

    A report of Professor Kenny, Professor of Psychology, dated 17 July 2017 (apparently prepared for the criminal proceedings) outlined the definition, diagnostic criteria, aetiology and nature of DID and its associated features and issues:

16. [37]

    Professor Kenny was provided with amongst other things, Jennifer’s eight police statements. Extracted parts of her account were included in Professor Kenny’s report as illustrations of dissociation and the development of the dissociation disorder continuing to afflict Jennifer.

17. [38]

    Some of the examples of dissociation identified by Professor Kenny in her report follow:

18. [39]

    The effects of DID were also identified in Professor Kenny’s report:

19. [40]

    Jennifer was referred to see Ms Johnson, Psychologist, in November 2019 for supportive therapy, based it seems, on NDIS intervention. In her report dated 2 July 2021, Ms Johnson stated:

20. [41]

    Jennifer currently lives with her mother in assisted accommodation in Brisbane and remains in receipt of the disability pension. Jennifer is obviously an intelligent woman having obtained a Bachelor of Arts degree in December 1995, a Master of Social Science (Legal Studies and Criminal Justice) Degree in 2000 and a Doctor of Philosophy in 2007.

21. [42]

    Ms Lindley stated the background to her engagement was that she had been requested by a DOCs case officer to assist Jennifer in the role of support person from early 2017 for the purposes of preparation and participation in the criminal trial. When she spoke to Jennifer, she had to determine which alter ego of the DID she was dealing with. She became familiar with the different personalities - (“alters”) - after a while, and found it best to speak to Jennifer early in the morning, because later in the day “it was more likely one of the alters would dominate”.

22. [43]

    Ms Lindley stated that Jennifer can perform some basic meal organisation, shopping and cooking tasks and can attend appointments, but is unable to make decisions about these legal proceedings as she cannot relive the events of past abuse and did not want to have to swear a further affidavit or participate in the hearing. Jennifer was concerned that she could not cope with hearing the defendant’s voice and would find that traumatic.

The sexual abuse

1. [44]

   The sexual abuse the subject of this claim occurred between 1974 and 1981 and falls under the categories of criminal conduct described in the Crimes Act 1900 (NSW) at that time. I have been asked to assess damages on the basis of five counts of indecent assault, six counts of buggery (as it was then termed), five counts of rape and nine counts of carnal knowledge of a female under the age of ten years.

2. [45]

   The facts of the events that comprise each identified offence are set out in detail in the agreed statement of facts and to which effectively, admissions were made by the defendant in the criminal proceedings. Those facts, together with the descriptions of those events in Jennifer’s eight statements to police that are exhibited to Ms Lindley’s affidavit, form the factual matrix upon which I have assessed damages. I have considered all of that material, together with, and in light of, the expert reports of Dr Chow, Professor Kenny, Dr Blair-West and Ms Johnson as to the nature and extent of Jennifer’s physical, psychiatric and psychological injuries and disabilities.

3. [46]

   Jennifer was not required to give oral evidence. This approach was taken to minimise costs and importantly to avoid the need for unnecessary re-traumatising of Jennifer by requiring her to give evidence again of the abuses already comprehensively detailed in her statements. It is appropriate in the circumstances, for this Court to adopt a pragmatic approach, particularly given the facts are not disputed and the defendant has taken no steps to defend the claim.

4. [47]

   I have read the Statement of Facts and the eight very detailed statements made by Jennifer to the police. Violence, terrible emotional manipulations, gratuitous cruelty and repeated instances of physical injury, pain and terror are described. Physical sequelae – in particular – bladder and bowel continence issues feature.

5. [48]

   The following are some extracts from the Statement of Facts that illustrate the abuses. I have not included the description of every assault that is the subject of this judgment. The extracts provide, in summary form, the acts and circumstances that comprised some of these sexual assaults:

Conclusion re: liability

1. [49]

   I accept as true the accounts contained in the Statement of Facts for which damages are claimed. The defendant did not dispute these accounts or any parts of them in these proceedings. Judgment will be entered for the plaintiff.

Assessment of damages

1. [50]

   The heads of damage claimed are confined to general and aggravated damages.

2. [51]

   I accept the submissions of counsel for the plaintiff that there should be a single award of general damages for all of the assaults. This approach is consistent with Varmedja v Varmedja [2008] NSWCA 177 at [154] (Varmedja) and the approach taken by McCallum J (as her Honour then was) in XY v Featherstone [2010] NSWSC 1368.

3. [52]

   I accept that the physical assaults and injuries to Jennifer’s anus and rectum caused her ongoing pain and serious distress associated with bowel and anal function, to the extent that by 2012 she felt that she had no alternative but to remove the items associated with so much trauma and distress. Given there is no evidence of a serious fall or pregnancy or childbirth, I have concluded based on Dr Chow’s report that the dislocated coccyx and the anal injuries and rectocele were caused by the defendant’s sexual assaults. Whilst the fitting of a permanent colostomy – made necessary by the removal of her anus and colon – provided some psychological relief, it is still a situation requiring daily management of stoma bags, infection risks and disposal of faecal matter. It restricts what Jennifer can wear and what she can physically do.

4. [53]

   Jennifer’s life has been destroyed by the defendant’s abuses. The loss of enjoyment of life and psychological distress caused to her by his vile conduct is immense. His bullying and manipulation of his daughter, a child at his mercy, was very damaging. I assess general damages at $500,000.

5. [54]

   A claim is made for aggravated damages. Aggravated damages are compensatory in nature and are awarded for injury to the plaintiff’s feelings caused by insult, humiliation and the like: Lamb v Cotogno (1987) 164 CLR 1 at [8].

6. [55]

   It is important not to doubly compensate for “hurt feelings”, particularly when general damages awarded must at least, to an extent cover such considerations: State of New South Wales v Riley (2003) 57 NSWLR 496 at [130] to [131] per Hodgson JA, Sheller JA agreeing at [9] and Nicholas J agreeing at [147]:

7. [56]

   The rapes and sexual assaults were extremely serious. They were repeated, demeaning, degrading and terrifying and caused significant physical and mental harm.

8. [57]

   There was gratuitous cruelty associated with many of the incidents. The fact that the defendant used his position as Jennifer’s father to coerce her and terrify and threaten her makes the conduct even more appalling and damaging to Jennifer’s sense of self.

9. [58]

   The defendant engaged in egregious manipulation of Jennifer, who was only four years old at the time the relevant assaults began, in an attempt to convince her that all the events were her fault and that she deserved these terrible abuses. She of course did not. She was an innocent child who fell victim to a depraved monster, her father, who unfortunately exploited this easy and regular access to her body, heart, mind and psyche to abuse her and humiliate her. His behaviour justifies an award of aggravated damages separate to compensatory damages.

10. [59]

    Jennifer has been psychologically destroyed and has constructed an elaborate but disabling coping mechanism in the split of her “self” into multiple personalities and identities to carry the psychological load of the trauma the defendant inflicted upon her. She has been able to construct a life for herself, but it is a very damaged and limited one. She has been entirely unable to cope with the formation of a relationship with a partner, sexual activity being associated with the abuse by her father. She cannot engage in paid employment but to her credit, has used her notable intelligence to complete study to a high level, in her time, and on her terms. There is no suggestion that despite therapy and support, Jennifer will recover to any degree.

11. [60]

    She has taken the drastic step of removal of her anus and colon so that she does not have to defecate through the passages the defendant invaded, tortured and injured. I assess aggravated damages at $100,000.

12. [61]

    Consistent with the approach outlined by Tobias JA in Varmedja at [163] (with whom Hodgson JA and McColl JA agreed), I assess damages as a total of both these figures at $600,000.

13. [62]

    I attribute $400,000 of this sum to the past, and in accordance with MBP (SA) Pty Limited v Gogic (1991) 171 CLR 57, I calculate interest on those past damages at 2% for 30 years = $240,000. I have chosen 30 years as a compromise position rather than calculating interest back to when the assaults began, 48 years ago.

14. [63]

    The total assessed amount, including interest, is $840,000.

Costs

1. [64]

   Costs should follow the event: Uniform Civil Procedure Rules 2005 (NSW) r 42.1. The defendant is ordered to pay the plaintiff’s costs.

Orders

1. [65]

   I make the following orders:

   1. (1)

      Judgment for the plaintiff in the sum of $840,000.

   2. (2)

      The defendant is to pay the plaintiff’s costs.