Jennings v Wilden

1. [1]

   MEAGHER JA: For the reasons given by Basten AJA, this appeal should be dismissed with costs.

2. [2]

   MITCHELMORE JA: I agree with Basten AJA.

3. [3]

   BASTEN AJA: In proceedings in the District Court heard and determined in 2021, the respondent, Kirra Michelle Wilden, alleged that she had been raped in 2014 and 2015 by her then partner, Michael Jennings. The trial judge, Judge Wilson SC DCJ, accepted her claims and awarded her damages of a little under $500,000. The damages included an amount of $100,000 for future economic loss.

Overview

1. [4]

   Mr Jennings appealed against liability and one aspect of the assessment of damages. As to liability, the first two grounds of appeal alleged that the judge had misdirected himself as to how he should assess the plaintiff’s evidence (in a manner unduly favourable to her), with a consequence that he had effectively reversed the burden of proof which properly fell upon the plaintiff (now respondent) and accepted her evidence unless affirmatively satisfied that it was not correct.

2. [5]

   With respect to the assessment of damages, the challenge was limited to the submission that the sum of $100,000 awarded on account of future economic loss was manifestly excessive. The sum was not calculated on the basis that there was any established likelihood of lost work days or unemployment, but rather by way of a buffer against the possibility of such losses arising.

3. [6]

   For the reasons given below, the appeal should be dismissed.

Liability – assessing the plaintiff’s evidence (grounds 1 and 2)

1. [7]

   It is a matter of fundamental and unchallenged principle that the plaintiff in civil proceedings bears the burden of proving each element of her or his case to the satisfaction of the trial judge, established on the balance of probabilities. Further, it is not in doubt that that simple proposition must be applied contextually. Both these principles are reflected in s 140 of the Evidence Act 1995 (NSW) which states:

2. [8]

   The appellant, correctly, identified the importance of giving full weight to the “gravity of the matters alleged”. The allegations of sexual intercourse without consent were allegations of serious criminal conduct. That did not mean that the plaintiff was required to establish her claims beyond reasonable doubt, as in a criminal trial, but it did mean that the Court was required to be cautious in accepting the plaintiff’s evidence. Although decided three years before the commencement of the Evidence Act, the appellant submitted that the relevant principle was helpfully explained in the following passage in the judgment of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd: [1]

3. [9]

   There is no inconsistency between this statement and s 140 of the Evidence Act. Section 140 states what matters the Court may take into account, without explaining how they are to be taken into account. The statement from Neat helpfully and relevantly explains one aspect of that exercise.

4. [10]

   Ground 1 of the appeal alleged that the trial judge erred in two specific paragraphs in his reasons, by applying the standard for appellate review of findings of fact to the plaintiff’s evidence. The effect of that error, as explained in ground 2, was that it effectively reversed the onus of proof. The approach adopted by the trial judge, it was submitted, required the appellant (being the defendant at the trial) to demonstrate that the plaintiff’s evidence was “glaringly improbable” or “contrary to compelling inferences”. Properly understood, the plaintiff bore the burden of satisfying the judge as to her allegations of very serious misconduct on the part of her former partner; the appellant bore no onus of proof of his side of the case, though as a practical matter, his denials would need to be assessed against the evidence of the plaintiff.

5. [11]

   The specific passages referred to by the appellant ([24]-[25]) must be read in their immediate context. After a very brief outline of the circumstances of the proceedings, the judgment contained a heading, “Approach to determination of the proceedings”. The following six paragraphs, [20]-[25], commenced with the following proposition:

6. [12]

   That statement was explained briefly by the judge recording his impressions of the two parties. He described Ms Wilden as “an honest and reliable witness” and said of Mr Jennings that his evidence “raised concerns regarding his honesty generally”. The following observations are then found:

7. [13]

   The second sentence in [24] lies at the heart of the appellant’s case. As he submitted, the language is drawn from cases dealing with appellate review of fact-finding by a trial judge, such review being a significantly different function from that exercised by the trial judge who hears the witnesses. For the appeal court, there is a tension between its obligation to review the findings of the trial court and the deference it should accord to fact-finding by the trial court based on the trial judge’s impression of the witnesses. As three members of the High Court stated in Fox v Percy: [2]

8. [14]

   It is self-evident that the trial judge was not undertaking appellate review; but the questions are why the judge adopted terminology relevant to appellate review and, if in error, whether it gave rise to a miscarriage of justice.

9. [15]

   The appellant submitted that there is no available understanding of the judge’s observations at [24], nor of the clarity of his direction to himself at [25], which can be reconciled with the fundamental principles noted above. The judge said that he was accepting the plaintiff’s claims unless satisfied that her evidence was glaringly improbable or contrary to compelling inferences. He should have directed himself that the plaintiff was required to satisfy him of her claims and that, given their gravity, it was not sufficient that he considered her claims more plausible than the defendant’s denials, but that he was comfortably and affirmatively satisfied as to their truth.

10. [16]

    The plaintiff disputed this reading of the impugned passage. There are two factors which support the plaintiff’s contention that there was no material error. The first turns on the context in which the statement was made. That requires consideration of the immediately preceding paragraphs, and those which immediately followed the impugned passage. The second factor turns on the lack of evidence of error in the later passages in the judgment where the critical factual findings were made.

11. [17]

    As to the first, [20]-[24] contain a progression of considerations from the weakest to the weightiest. Beginning at [20], that paragraph should not be read as stating that the judge would not rely on impressions created by the witnesses giving evidence, but rather that the case would not be determined purely on that basis. That qualified reading is necessary because the two paragraphs immediately following identify the impressions he formed of the plaintiff on the one hand and of the appellant on the other. A similar qualified reading should be given to the statement at [23] that the evidence to be preferred was not to be determined merely by having regard to “consistency, demeanour or reliability”. The element of “consistency” referred to an earlier discussion of certain text messages which had passed between the parties. It appeared that the plaintiff had been unable to recover the text messages from her phone, but that the appellant had downloaded some 47,000 text messages from his phone, which were produced after the commencement of the trial. Ms Wilden gave evidence without the benefit of the text messages, but when produced, they supported her assertions. [3] The judge placed reliance on that material.

12. [18]

    By contrast, the judge said that Mr Jennings’ evidence was subject to inconsistencies which gave rise to doubts as to his reliability and that he gave evidence of “a history of lying to Ms Wilden, mostly as to his social life”. The judge said that this evidence raised “concerns regarding his honesty generally”. [4] Again, consistency, demeanour or reliability were not disregarded, but were not treated as determinative.

13. [19]

    It is clear that in these passages the judge was working through a number of matters which were relevant to the assessment of the evidence of the plaintiff and the defendant. He then turned, in the first sentence in [24], to consider objective facts and, where they exist, “incontrovertible facts”. It may be seen that each element discussed is likely to bare greater weight than the previous element or elements. Then, in the absence of objective facts or incontrovertible facts, the judge states that he will ask whether the plaintiff’s evidence was glaringly improbable or contrary to compelling inferences. In accordance with established principle, he referred only to the plaintiff’s evidence in that regard because (i) she bore the onus of proof and (ii) it was her allegations of criminal misconduct which might be thought implausible, rather than Mr Jennings’ denials.

14. [20]

    On this understanding, these passages in the judge’s reasoning did not represent a departure from established principles.

15. [21]

    There is further support for that view to be found in the succeeding paragraphs. Immediately following the impugned paragraphs: first, there is a new heading “Standard of proof”. In that section, the judge referred to the basic principles set out above, including s 140(2) of the Evidence Act, the fact that the allegations were of criminal acts, that they were “very serious”, and therefore should be dealt with in accordance with the principles established in Neat set out above (which was quoted) and the earlier judgment of Dixon J in Briginshaw v Briginshaw. [5]

16. [22]

    Having regard to these considerations, I am not persuaded that the impugned passages demonstrated any misunderstanding by the judge as to the principles he was required to apply. This understanding is consistent with the approach described by Ipp JA in Goodrich Aerospace Pty Ltd v Arsic: [6]

17. [23]

    The second factor noted above concerned the lack of evidence of error in making critical factual findings. Thus, the understanding of the impugned passage set out above may be tested by asking whether in subsequent passages in the judgment, where the evidence of particular events was considered, there was demonstrated misapplication of correct principles.

18. [24]

    The trial judge gave extensive consideration to the factual material before him. That commenced with a lengthy chronology, all contained within [38] but covering some 33 pages of the judgment. He then set out the evidence of the four alleged sexual assaults from [39] to [97]. Following that largely factual account, where no findings were made, the judge then turned to what were described as “disclosures by Ms Wilden”, in which section at [98]-[154] he dealt with both complaints to friends and to health practitioners.

19. [25]

    At [155] the judge began a consideration of the submissions of the parties on liability, recording that the written submissions exceeded 200 pages and that oral submissions took “the best part of two days of court time”. Inevitably, the submissions repeated much of the factual material that had already been identified. Within the summary of the submissions, however, there were significant findings of fact. Without seeking to be comprehensive, it is convenient to refer to some examples, which were identified in submissions in this Court as potentially significant to grounds 1 and 2 of the appeal.

20. [26]

    After noting Ms Wilden’s submissions dealing with the credibility of the witnesses and in particular the parties, the judge stated:

21. [27]

    After setting out the submissions with respect to the text messages, the judge continued:

22. [28]

    The last passage, at [196], was the only point in the judgment at which the judge repeated the language of Fox v Percy. However, it may be noted that the reference followed acceptance of Ms Wilden’s evidence as demonstrating consistency, reliability and honesty. These, too, were reflections of the language used in the earlier passage. There is, in my view, no suggestion of a reversal of the onus of proof. What is being undertaken is a careful assessment of the plaintiff’s evidence against a range of tests, including, despite findings of reliability and honesty, the possibility that they might inherently be so improbable as not to warrant acceptance.

23. [29]

    The judge then turned at [197] to the plaintiff’s submissions with respect to Mr Jennings’ reliability, or rather lack thereof.

24. [30]

    Without reference to the Fox v Percy language, the clearest subsequent suggestion of a reversal of the onus of proof was said to lie in the following passage:

25. [31]

    I do not read this passage as indicating the judge accepting that Mr Jennings bore a legal burden of proof. It was entirely appropriate for counsel to make submissions to the effect that the other party was unreliable and inaccurate in his oral testimony and that the Court should not accept his evidence unless corroborated. Mr Jennings had two forensic strategies available to him at the trial. One was to seek to undermine the credibility and reliability of the plaintiff’s evidence; the other was to attempt to persuade the judge by his denials. Discussion of these strategies did not impose on the defendant a legal burden of disproof.

26. [32]

    The conclusion of the judge with respect to liability was made at [206]-[207]. That appears to be a preliminary finding, as the judge then went on to address Mr Jennings’ submissions at [208]-[290]. In the course of that consideration, the judge dealt with a range of other issues, including a submission that Ms Wilden had deliberately deleted text messages from her phone in order to improve her prospects in these proceedings: at [265]. Significantly, the judge then stated:

27. [33]

    There followed a passage (at [291]-[312]) in the course of which the judge considered, and rejected, a defence raised by the defendant under the Limitation Act 1969 (NSW). Nothing further was said in relation to liability.

28. [34]

    In my view, consideration of the judgment as a whole confirms the analysis with respect to the impugned passages, namely that the adoption of language of appellate review demonstrated no misunderstanding of the principles governing proof in a civil case, nor any failure to apply those principles. It follows that grounds 1 and 2 challenging the finding of liability must be rejected.

Damages

1. [35]

   Ground 3 alleged that the trial judge erred in assessing damages for future economic loss in the amount of $100,000, a figure which was said to be “excessive and unsupported by the evidence”.

2. [36]

   The trial judge made reference to a submission on behalf of Mr Jennings that, if any amount were to be allowed on account of future economic loss, it would be a buffer of $10,000. In this Court, counsel for Mr Jennings submitted that no concession had been made but that, contingently, if some amount were to be allowed, $10,000 was all that would be appropriate.

3. [37]

   As the judge explained, Ms Wilden had originally claimed a loss of earning capacity of some $250 per week, or about 20% of her expected net weekly income, over 37 years. That would have given a capital sum of $284,000. In the course of her submissions at trial, Ms Wilden accepted that the calculation was speculative, given her then current abilities to study and work, albeit in a less stressful job than that for which she was seeking qualifications, and that an appropriate course was to allow a buffer of $200,000.

4. [38]

   It may readily be accepted that the evidence did not support an award of a precisely calculated amount. However, there was evidence to support a possibility that her capacity for employment had been affected by the four assaults. The judge accepted the opinion of a psychiatrist, Dr John Roberts, that Ms Wilden “may be at increased risk of decompensation (at work), being at a greater risk than if the posttraumatic stress disorder was not present”. [7] The judge continued:

5. [39]

   Mr Jennings submitted that the judge failed to have regard to the fact that Ms Wilden was, prior to the events in question, suffering from a generalised anxiety disorder which may have had an impact on her future earning capacity regardless of the assaults. However, that consideration was taken into account by Dr Roberts who nevertheless considered that she suffered from PTSD as a result of the assaults over a significant period of months, and that the PTSD would be likely to have an impact on her future work capacity. Ms Wilden submitted that at the time of the trial, she was working 25 hours a week in women’s fashion, which she had been doing for at least three years as well as undertaking her university studies.

6. [40]

   Mr Jennings further noted that Ms Wilden had not undertaken any psychiatric treatment for her conditions. That was a material consideration, but Dr Roberts had stated in his initial report: Blue 66K

7. [41]

   The joint report of Dr Doron Samuell and Dr Roberts was brief and largely a matter of agreement. It was that report upon which the trial judge relied.

8. [42]

   As explained by McColl JA in Pollard v Baulderstone Hornibrook Engineering Pty Ltd: [8]

9. [43]

   It is by no means clear that the amount awarded by the trial judge for future economic loss was excessive in the sense that it was beyond the range which could reasonably be considered. It was not a nominal amount of the kind Mr Jennings had proposed at trial, but neither was it a clearly excessive amount having regard to the fact that Ms Wilden had an expectation of 37 years of employment and an unchallenged finding of PTSD. There is no basis for concluding that the judge erred either in his understanding of the facts or of the relevant legal principles. Given the “necessarily impressionistic task of assessing damages for lost earning capacity”, [11] this is not a case which calls for the intervention of this Court. Ground 3 should be dismissed.

Orders

1. [44]

   As the appellant has failed to make good his grounds of appeal, the Court should make the following orders:

   1. (1)

      Dismiss the appeal from the judgment and orders of the District Court.

   2. (2)

      Order that the appellant pay the respondent’s costs in this Court.