AA v BB

1. [1]

   BARR AJ This is an assessment of damages. Consequent upon an order made by the Court on 1 August 2013 I have referred to the plaintiff as AA and to the defendant as BB. I shall refer to the mother of AA, who is the estranged wife of BB, as CC.

2. [2]

   The plaintiff is the daughter of the defendant and CC. She is now 19 years of age. The defendant began sexually interfering with her when she was 5 years old and continued until she was 12 years old. She commenced this action by filing a statement of claim in which she sought aggravated and exemplary damages, interest and costs. In a statement of particulars filed with the statement of claim the plaintiff supplied particulars of injuries and continuing disabilities. She thereby made plain that she also sought an award for general and special damages.

3. [3]

   In his defence the defendant agreed for the most part with the facts pleaded. He admitted all the assaults pleaded. He mostly agreed with the facts pleaded as relevant to aggravated damages. He agreed that exemplary damages were appropriate. He appeared before Garling J on 16 July 2013 and consented to judgment for the plaintiff with damages to be assessed. He also consented to an order that he pay the plaintiff's solicitor the sum of $25,000.00 on account of damages. That sum was paid as ordered.

4. [4]

   Ten particular assaults were pleaded. The first two took place when the plaintiff was 10 years old. These accounts are adapted from the plaintiff's evidentiary statement.

The First Assault

1. [5]

   The defendant used to tell the plaintiff to come to the room he shared with CC. She would obey. On the first occasion pleaded she got into her father's side of the bed. He put his arms around her. Her back was against his chest. Her mother was asleep facing the other way. The accused lifted up the child's nightie and put his hand on her vagina. He rubbed her vagina and played with her nipples. He pinched and squeezed them. He also encouraged the child to touch and fondle his penis. He stopped when her mother started to wake up.

The Second Assault

1. [6]

   The plaintiff crawled into her parents' bed so that she was positioned with her back against BB's chest. He touched her vagina with one hand whilst he rubbed her nipples with the other. The accused grabbed her left hand and positioned it around his penis. He moved his hand and the child's hand up and down his erect penis. He said "take it out". She removed his penis from his boxer shorts. He placed his penis between her legs and started to move back and forth against her. As he did so he rubbed her vagina with his hand. He inserted his finger in her vagina and moved it back and forth. He asked "do you like this"?

2. [7]

   The next two assaults took place when AA was 10 or 11 years old.

The Third Assault

1. [8]

   AA was in bed, positioned in front of BB. He slowly rubbed her belly and chest, moving downwards towards the bottom of her nightie and rubbing her vagina through the fabric. He put his hand under the fabric and rubbed her nipples with his right hand while his left hand was touching her on the outside of her vagina. She could feel his penis against her lower back. He took his shorts off and said, "this will make it easier". He took off her nightie and rolled her so that she was positioned on top of him. He placed his penis between her legs and held her on top of him whilst holding his penis so that it rubbed on the outside of her vagina.

The Fourth Assault

1. [9]

   On the same occasion BB whispered, "Put it in your mouth and suck it". He pushed her head gently on his penis. He kept his hand on her head as she put his penis in her mouth. He pushed down on her head and then released it repeatedly. AA reported, "I was bobbing my head. I remember tasting pre-cum which was really salty and pretty disgusting. I wanted to stop, so I took it out of my mouth and he said, "Keep going you make Daddy feel good". So I put it back in my mouth and kept sucking it...both of Dad's hands were on my head holding it down. I was sucking for a few minutes. He then said, "Mum will be back soon we better get cleaned up". That was the first time BB made her suck his penis.

2. [10]

   The next two assaults took place when AA was about 12 years old.

The Fifth and Sixth Assaults

1. [11]

   After what was by then routine indecent touching in bed, the defendant made the plaintiff join him in the shower. They washed each other. He rubbed her vagina with his hand and then inserted his finger and moved it inside her. He picked her up so that they were facing each other, with her legs wrapped around his waist. Her hands were around his neck and her back against the wall. One of his hands was on her bottom and the other on her waist. He put his penis between her legs and thrust back and forwards against her vagina. He said, "someday you will be doing this with your own boyfriend".

The Seventh and Eighth Assaults

1. [12]

   On occasion in the same year the plaintiff was asleep on the lounge floor. BB lay next to her. He took her hand and put it inside his pants so that it was around his penis. He moved her hand up and down and said, "Good girl, keep going". He took his pants off and lay on top of her. He continued to have "pretend sex". He said "one day this will be inside you filling you all the way up to your belly". He carried her to the dining room table and laid her on her back on the edge of the table with her legs dangling over. He stood between her legs and continued to have "pretend sex" by thrusting his penis back and forwards against her vagina. He flipped her over and thrust back and forwards against her vagina. He flipped her over and thrust back and forwards against her bottom, saying "a lot of girls like this because it goes so much deeper". He picked her up so she was facing him with her legs wrapped around him. He pushed her up against the wall and continued to have pretend sex. He did this for a few minutes before carrying her to the couch. He lay on the couch and positioned her on top of him. He had his hands on her bottom and squeezed it as he moved his hips up and down. She could feel his erect penis pressing against her vagina.

The Ninth and Tenth Assaults

1. [13]

   During the same year the defendant tried to insert his penis into the plaintiff's vagina. On the first occasion the defendant lay on top of her between her legs and said "spread them real wide". She spread her legs and the accused lined up his penis to the entrance of her vagina and attempted to push his penis inside her. She could feel his penis pressing hard against the entrance of her vagina. She squirmed and tried to move away as it hurt. He told her to relax, that it would feel good.

2. [14]

   On the second occasion she was lying on her back. He lay on top of her, licked his fingers and began rubbing them against her vagina to make it moist. He tried to push his penis into her vagina. She reported, "It was too big and it hurt me so I pulled back. Again he told me to relax and that it would not hurt. He tied again a few times but each time it hurt and I pulled away. Dad stopped and said "not yet but some day you will love it, lots of boys filling you up inside, it'll feel so good".

Other Assaults

1. [15]

   Also pleaded and admitted are approximately five acts of touching and cunnilingus that took place in 2005 and 2006.

The Assaults Reported

1. [16]

   The defendant's assaults became less frequent during 2006 and stopped in August of that year. The plaintiff was then 12 years old. She continued to live in her parents' house until early 2011, when she could stand it no longer. She left the household for good.

2. [17]

   The plaintiff reported the defendant. The police were informed and he was arrested. He admitted the several assaults alleged and volunteered others. He has been dealt with in criminal proceedings.

The Effects on the Plaintiff of the Defendant's Conduct

1. [18]

   As appears from the plaintiff's evidentiary statement, the effect of the defendant's conduct on her has been profound. Looking back, she is embarrassed about the slow process of realisation that her father's actions were not normal. There must have been a considerable time during which she suspected or knew that what was happening should not be happening but was unable to stop it. When the defendant's behaviour was made known, the plaintiff's siblings began treating her differently, as though she were fragile. They could hardly be blamed for that, but the change made the plaintiff pull away from them and blame herself for their difficulties. Other tensions were set up in the family. At first CC blamed the plaintiff. Other members of the extended family took sides or demonstrated a refusal to do so, leaving the plaintiff either isolated or smothered with attempts at support. Her relations with her siblings are slowly reforming but they cannot speak about the abuse. Relations with the defendant and CC are at an end. She has changed her name. She never wants to be associated with them again.

2. [19]

   These effects have spread to other relationships. The plaintiff finds it impossible to trust people. She suspects their motives. She does not wish them to know what has happened to her or how she feels. She regards herself as socially inadequate. She has difficulty relating to people. She moves on rather than form attachments. She finds new or uncomfortable situations difficult to manage, and sometimes others seem to regard as inappropriate the resort to humour or sarcasm that she finds necessary.

3. [20]

   Early on, the plaintiff did well at school but her learning deteriorated during the years of realisation and self-blame. The disclosure of the defendant's conduct led to enormous pressure. The plaintiff had to cope with tensions within the family and to deal with the police. Then she lost her accommodation. She ceased to study some subjects in order to try to keep up with others at school, but that did not work and she eventually left school altogether. She did not sit for the Higher School Certificate. She moved in with a friend and when that did not work she lived in a refuge.

4. [21]

   The plaintiff tried to kill herself by cutting her throat. She was saved in emergency surgery but was committed to the care of mental health services. Since then she has had a series of mental health workers assisting her, but she has found it difficult to obtain support, not only because of frequent changes of personnel but because she has found it hard to place her trust in anyone. She feels blameworthy, vulnerable and unwanted.

5. [22]

   Since 2011 the plaintiff has suffered seizures. Twice she has descended into coma. As a result there have been several admissions for emergency hospital treatment. At first she was dealt with as though she had overdosed on drugs, though she had not. She was committed to a mental health unit and put on suicide watch. She was treated as though her symptoms were a result of her own actions. Late in 2012 these symptoms were diagnosed as epileptic, resulting from stress.

6. [23]

   The plaintiff is prescribed medicine to take daily and has counselling to try to reduce stress and anxiety. She suffers nausea and often vomits. She does not sleep properly. She has nightmares and flashbacks. She has persistent headaches.

The Expert Evidence

1. [24]

   The report of Dr. Colette Hourigan was tendered. Dr. Hourigan first attended upon the plaintiff when she was referred by the warden of the refuge I have mentioned. She said this:

2. [25]

   Dr. Hourigan went on to summarise consultations throughout 2012, dealing with admission to the hospital intensive care unit when unconscious or after fainting, what Dr. Hourigan called dissociation episodes, self-harm and seizures. It appears from Dr. Jungfer's report, to which I shall refer, that the plaintiff saw a child and adolescent psychiatrist for about 12 months during those consultations. Dr. Hourigan reported that from 20 February 2013 the plaintiff was admitted to hospital with pneumonia and epilepsy. Dr. Hourigan last reported seeing the plaintiff in March 2013.

3. [26]

   The plaintiff consulted Dr. Patricia Jungfer, psychiatrist, on 7 May 2013 for a medico legal report. Dr. Jungfer's report of 9 May 2013 was received into evidence. Dr. Jungfer diagnosed post-traumatic stress disorder, consequent upon the events I have described, and major depression secondary to her post-traumatic stress disorder. Among other things Dr. Jungfer said:

4. [27]

   Dr. Jungfer summarised the plaintiff's situation thus:

5. [28]

   Dr. Jungfer considers that the plaintiff will benefit from seeing a clinical psychologist experienced in eye-movement desensitisation reprocessing and from psychodynamic psychotherapy. She thinks that the plaintiff should continue to take anti-depressants. She said this about the plaintiff's prognosis:

6. [29]

   Dr. Jungfer thinks that the plaintiff's present symptoms prohibit any paid employment. They also inhibit her education, and that has consequences for employment in the longer term.

7. [30]

   The defendant took issue with only one matter dealt with by Dr. Jungfer, namely her report that the plaintiff denied any family history of psychiatric illness. Responding, the defendant read a paragraph of his own affidavit made on 16 July 2013 thus:

8. [31]

   The Civil Liability Act 2002 does not govern the assessment of the plaintiff's damages since the defendant's liability is for sexual assault: s 3B(1)(a).

9. [32]

   The statements of the plaintiff, Dr. Hourigan and Dr. Jungfer about the effect on the plaintiff of the defendant's acts are unchallenged, and I accept them. The defendant's conduct took place over a number of years at a stage of the plaintiff's life when she should have been developing appropriate social relationships with her family and others. That conduct robbed her of her right to a normal and healthy psychosexual development. Although the plaintiff does have a female friend whom she sees and apparently trusts, I am satisfied that as things stand she is almost incapable of forming ordinary friendly relationships. She is incapable of forming ordinary intimate relationships. She cannot readily trust others.

10. [33]

    The future course of the plaintiff's condition will be difficult, but I accept Dr. Jungfer's opinion that there are prospects for improvement with appropriate therapy and treatment, but the course of the therapy and treatment will, I think, be long and difficult. The plaintiff must first find a therapist able to stay with her long enough to win her trust.

11. [34]

    The plaintiff is intelligent, as is demonstrated by her written account, and has realised the importance of taking up her formal education and completing the Higher School Certificate if she can. She had resumed her studies by the time she saw Dr. Jungfer. I think that given proper therapy and material assistance she will be able to make progress.

12. [35]

    I think that given the proper conditions and in view of the early disclosure of the defendant's conduct, the plaintiff's condition will improve, but that will not be for a long time. I accept Dr. Jungfer's opinion that disruption to her education and her relationships will have a lasting effect on her.

13. [36]

    I conclude that the epilepsy that has recently emerged is stress-related. There is reason to believe that treatment will reduce stress, and I think that her epilepsy will subside.

14. [37]

    The conclusion of the present proceedings should be beneficial.

15. [38]

    The only factual matter on which the parties disagree is about the effect, if any, of a family history of depression. Dr. Jungfer expressed her opinion that the plaintiff's condition was brought about solely by the defendant's conduct and recorded her understanding that there was no family history of depression. I have set out above the defendant's evidence of such a history.

16. [39]

    I think it quite possible that the plaintiff was never told about any family history of depression, and it is not surprising that the plaintiff should have told Dr. Jungfer that she was unaware of any such history. I accept that there is a history of depression in the family, though I do not consider the defendant's father's schizophrenia relevant. The family history is only relevant, however, if it justifies a conclusion that depression arising independently of the defendant's conduct contributed to the plaintiff's symptoms. The burden of proof lies on the defendant and he has adduced no direct evidence to that effect. I would not come to such a conclusion by inference because the defendant's misbehaviour was prolonged and so serious as to be likely by itself to produce all the plaintiff's symptoms.

17. [40]

    I assess general damages at $200,000.00.

18. [41]

    Dr. Jungfer estimates the cost of the clinical psychologist whose services will be needed for between 10 and 20 sessions, each of 1 to 2 hours, at $220.00 per hour. I allow $5,000.00.

19. [42]

    Dr. Jungfer also considers that 2 to 3 years of intensive psychotherapy 2 to 3 times per week would be appropriate. She estimates the cost per session to be between $220.00 and $360.00, less a medical refund of $150.00 if the psychotherapist is a consultant psychiatrist. It would be easier to engage a non-psychiatrist physiotherapist because there are more of them, and if so the cost of each consultation would range up to $300.00 with no refund. I allow $50,000.00.

20. [43]

    Dr. Jungfer considers that the plaintiff should continue to take anti-depressants. She estimates the cost of appropriate drugs, including Quetiapine, which will be unavailable to her at the health care rate, at about $300.00 per calendar month. I allow $20,000.00.

21. [44]

    I allow a total of $75,000.00 for future medical expenses.

22. [45]

    The plaintiff has undoubtedly suffered loss of her capacity to earn income. But for the defendant's actions, if she had not gone on to tertiary education, and subject to one further matter I will mention, she might have been in paid employment by now. Her loss, however, is incalculable because she has never had an opportunity to demonstrate her earning capacity. Even so, the Court must on the limited evidence available assess the plaintiff's loss of capacity to earn; State of New South Wales v Moss (2000) 54NSWLR 536 per Heydon JA at 551 and following.

23. [46]

    I accept Dr. Jungfer's opinion that the plaintiff cannot earn income as things stand, but I think that she has reasonable prospects of earning an income if she receives the therapy and treatment she needs.

24. [47]

    The further matter to which I have referred is the condition hyperreflexia from which the plaintiff suffers. Dr. Jungfer is the only witness to have referred to it. She called it "a physical complaint that limits (the plaintiff's) ability to do any form of physical activity." Dr. Jungfer said this:

25. [48]

    That was the extent of Dr. Jungfer's remarks about the condition. There is no orthopaedic evidence and no indication how long the condition will limit the plaintiff's ability to perform physical activity. It is not suggested that the condition results from anything the defendant has done.

26. [49]

    There seems no reason why the surgery on the hips that has been performed and offered will not achieve its object, and I assume that the plaintiff will gain sufficient mobility to work within a reasonable time. I think it probable that any effect of hyperreflexia on the plaintiff's capacity to earn would not have lasted more than about a year.

27. [50]

    The plaintiff worked in a Chinese restaurant for four months when she was 14 years old and after that for 3 years at Red Rooster. That employment came to an end when the plaintiff disclosed the defendant's offences. Those were part time jobs, of course, typical of those undertaken by young people and students, but the plaintiff's preparedness to work at such times and for such periods indicate that, given appropriate therapy and treatment, she will be able to apply herself towards earning income.

28. [51]

    According to figures published by the Australian Bureau of Statistics, average gross weekly earnings for females employed full time in all industries in May 2013 were $1,250.50. The plaintiff's entry into and progress in paid employment would have been retarded or delayed by the need for hip surgery, but when that was behind her the plaintiff would, I think, have been able to obtain employment and progress to something like the average wage. As things stand, I think that the plaintiff will earn income. I cannot say when she will begin to do so. That depends on the effectiveness of the treatment offered her. I cannot say whether she will in time achieve a wage comparable to the average wage but I think there are reasonable chances that she will. If the chances materialise I cannot estimate how long that will take. I am satisfied that the plaintiff's loss of wage earning capacity will last for some years after the cessation of any effect of her hyperreflexia.

29. [52]

    I allow a lump sum in the nature of general damages to compensate her for her loss of opportunity to earn during that time.

30. [53]

    For future economic loss I allow $250,000.00.

Aggravated Damages

1. [54]

   Throughout the period of the defendant's misconduct the plaintiff was his child and entitled to his protection. His acts constituted a contumelious disregard for her dignity, rights and wellbeing. His was a breach of trust of high order.

2. [55]

   I allow $100,000.00 for aggravated damages.

Exemplary Damages

1. [56]

   For about 7 years the defendant callously used his own child for his sexual pleasure. His acts were disgraceful. The Court should manifest its strong disapproval of such conduct.

2. [57]

   I allow $100,000.00 for exemplary damages.

3. [58]

   I assess damages at $725,000.00 and direct the entry of judgment for the plaintiff in that sum. The defendant may deduct from it the sum of $25,000.00 on account of the payment he has already made.

4. [59]

   I order the defendant to pay the plaintiff's costs of the action.