"AM" v KW"

Supreme Court of NSW|2005-07-28|Before: When AM, Harrison J

"AM" v KW" [2005] NSWSC 876 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 27 & 28 July 2005, 1 August 2005

DECISION : (1) Enter a verdict and judgment in favour of the plaintiff in the sum of $444,745.09; (2) The defendant is to pay the plaintiff's costs as agreed or assessed.

Paten v Bale (1999) 135 QLDSC 36 CASES CITED : State of NSW v Moss [2000] NSWCA 133

"AM" (Plaintiff) PARTIES : "KW" (Defendant)

Mr A R Conolly, A R Conolly & Co (Plaintiff) SOLICITORS : "KW" (Defendant in person)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT (Sexual assaults) 1 HER HONOUR: The plaintiff claims that he suffers psychological injuries from sexual assaults which he alleges were perpetrated upon him by the defendant when he was entrusted in the care of the defendant in his capacity as a babysitter. 2 The defendant appeared without legal representation throughout the trial. At the outset of this trial the defendant had the benefit of some legal advice and his Counsel applied for an adjournment. The adjournment was refused - see separate reasons. 3 The plaintiff was born on 11 August 1982 and is currently 23 years of age. The statement of claim pleads that the defendant committed a number of sexual assaults. The assaults are alleged to have been committed on the plaintiff over a period of approximately four years between 1988 and/or about 1992 when he was aged between six and ten years. 4 The plaintiff, his sister Michelle, his father Phillip and grandmother Edna all gave evidence. The plaintiff's grandmother Edna is 88 years of age and had very little recall of the events that were alleged to have taken place years ago. Other than to confirm that she and the defendant had been friends, I formed the view that her memory of other events was unreliable. 5 It was common ground between all witnesses that during a period of between two to six years KW babysat AM. AM gave evidence that he was five or six when he started to be babysat by KW at KW's house [t 16.14-16]. KW babysat him three or four times a year for a period of just over two years [t 16.44-50]. He would usually stay overnight [t 16.23-25]. KW recollected that he had babysat AM two to three times a year over a period of two to three years therefore between four and nine times [t 83.14-49]. The plaintiff's father PM gave evidence that KW babysat the plaintiff between three and six times a year for four to six years [t 48.46-55]. KW had on the first occasion volunteered to babysit AM [t 49.04-06]. KW would usually babysit AM overnight as his (AM's) parents preferred not to expose his asthma to the cold of night [t 49.06-08]. The plaintiff suffered from episodic asthma during these years and was taking medication and occasionally had to use a nebuliser (see clinical notes of Dr Sandra Grass)

The plaintiff's version of events 6 AM gave evidence that during the babysitting sessions KW had touched him in the genital area [t16.52-54] but this occurred infrequently [t 20.50-52]. At first the touching in the genital area would occur when KW would follow him into the bathroom and watch him urinate [t 17.22-27]. 7 On later occasions KW got AM to urinate into his mouth [t 19.23-27]. This occurred on every occasion when AM stayed overnight at KW's house with one or two exceptions [t 19.29 - 20.15]. As a six year old he had not felt comfortable with this and felt that it was not right but believed he had to do what he was told [t 21.38-46]. When AM was 10 or 11 he began to feel more strongly that it had been wrong and that he had been tainted and was dirty [t 25.38-40]. AM's feeling that he was dirty had lessened over the years [t 25.42-47]. 8 On at least one occasion KW had asked AM to touch his (KW's) genitals [t 20.31-32]. This occurred in KW's bedroom in circumstances where KW was naked having taken off his dressing gown and asked AM to touch his (KW's) genitals [t 20.57 - 21.02]. AM was in his pyjamas. KW did not ask AM to undress on that or any other occasion [t 21.04-16]. 9 It was common ground that KW gave AM gifts. AM gave evidence that KW had given him gifts of toys and occasionally money [t 22.02-03] and that KW had said at the time of giving AM the gifts that the gifts were to be "between us" [t 22.20-33]. The plaintiff's father also gave evidence that KW had on a fairly regular basis taken AM out to buy AM quite expensive toys, and that once he had found a $50 note in AM's dressing gown pocket on his (AM's) return from KW's [t 49.32-44]. KW conceded in cross-examination that he had given AM money on occasions other than birthdays and Christmas [t 79.56- 80.01] and on occasions when his grandmother was not there [t 80.34-38]. KW at first disputed ever having given AM $50 as he couldn't have afforded it but later thought he may have given AM $50 for a birthday [t 79.40-49]. 10 When asked whether he had ever protested to the babysitting sessions at KW's, AM recalled that he had kicked and screamed to his parents and told them he did not want to be left there and that he did not like going there but that his parents had still taken him to KW's as they could not find another babysitter on short notice [t 36.33-47]. AM recalled that on one occasion he had induced an asthma attack so that his parents would have to come and get him [t 36.49-53]. 11 The plaintiff's father had first become aware of the alleged assaults by KW on AM sometime in 2003 during a telephone conversation with AM's then girlfriend [t 51.31- 52.15]. In the course of that conversation he had said words to the effect, "I just don't understand why [AM] is doing this to himself… Do you mean to say he has been molested? …I really think I know who this is…Was it KW?" [t 52.39-54] The plaintiff's father also confirmed that Michelle spoke to him about the alleged incidents one or two weeks later [t 53.01-10]. AM has told Phillip M that the alleged incidents occurred but has not given details about what took place. 12 The plaintiff's sister (Michelle) is 15 years older than the plaintiff, married and has lived in Melbourne since when the plaintiff was five years of age. In August 2002 she visited Sydney to attended her Nanna's (Edna) 85th birthday. She recalled that she and the plaintiff went to collect videos. When they pulled up in the garage she said to her brother "Why are you troubled?" He answered: "You remember K. Well he was molesting me as a child" [t 10.18-34]. She gave him a hug and told him that she was sorry [10.36-40]. At that stage, the plaintiff had not told his parents. He did not want to tell them. His sister volunteered to tell them that night and she did so [t 10.44-57].

The defendant's version of events 13 Throughout the hearing, the defendant was keen to stress that the plaintiff's grandmother was always with him when AM came to stay (see for example [t 53.22-24; 54.43-44; 76.14-18; and 79.25]). KW stated early in the proceedings "[s]he [the plaintiff's grandmother] was always there AM" [t 47.27]. Initially KW gave the following evidence from the witness box: "[H]is grandmother was there as I said before and he wanted to go to the toilet, and we had to just take him into the bathroom and he done it in the bath (sic)…and we had to wipe him…most of the time I was there his grandmother was there." [t 74.21-26].

14 This is disputed by the plaintiff's father. The plaintiff's father did not recall any occasion when he had dropped AM at KW's residence and the plaintiff's maternal grandmother or anyone else had been present [t 49.10-30]. 15 During cross-examination KW conceded there was at least one time when AM stayed overnight at his place and AM's grandmother was not there [t 75.10-14]. KW later conceded it was two occasions [t 75.48-50] and later still that "it could [have been] more" [t 78.50-55]. KW, when pressed clarified that when he had put to AM in the witness box: "don't you remember that your grandmother was always there", he should have said "most of the time" [t 75.31-34]. It was put to KW that his question to AM had been deliberately deceptive:

"Q: Can you answer the question for me why you asked AM the other day…"don't you remember that your grandmother was always there?" A: I thought you meant in the day time.

Q: I didn't mean anything, you asked him the question … you know it's critical for this Court to know whether you were there by yourself and AM or with somebody else, you know that, don't you? A: Yes, that's right, yeah.

Q: … You were being deliberately deceptive in asking him the question… … … you were trying to give the impression to the Court that on all the occasions that you were with AM at your house there was somebody else there with you… … …[w]ere you, or were you not [trying to give that impression]? A: I suppose I would, thank you." [t 76.09-47]. And later: "Q: … You had complete freedom to ask Mr AM any questions that you wanted, and you chose to ask him the question, "don't you remember that your grandmother was always there?"… … … [t]hat was deceptive, wasn't it? A: Yeah, I suppose." [t 78.27-34]. 16 KW conceded in cross-examination that when he took AM into the bathroom, "[AM's] grandmother was outside" [t 88.57- 89.02]: "Q: What do you mean his grandmother was outside? A: In the loungeroom. Q: You were in the toilet with him by yourself? A: We had to wipe him and that. Q: You are using the word we? A: I had to wipe him…" [t 89.37-44] And later: "Q: [T]here was never one occasion, never an occasion, when both you and AM's grandmother went into the toilet or bathroom together to attend to AM? A: No, that's right, but she came in after to see how he went." [t 96.44-49]. 17 Initially, it was KW's evidence that the plaintiff's grandmother was always at the unit [t 79.25], then the grandmother was only there in the daytime. Initially, the grandmother assisted in wiping the plaintiff's penis, then the grandmother was outside the bathroom when the plaintiff and defendant were in the bathroom. 18 KW also conceded that when alone in the bathroom with AM he had touched AM's penis: "Q: How did you have to wipe him? A: With a paper towel or something. Q: What did you have to wipe [sic]? A: His genitals and penis… Q: And you did this without his grandmother being there, even when his grandmother was there? A: She might have been outside, I don't know now. Q: You have said she was probably outside in the kitchen? A: You would do that to an animal if they are sick, to help them after an operation. Q: So you touched AM in this way? A: Yes, with a paper towel or toilet paper or something, to wipe him. … Q: Without a towel, you touched him on the penis? A: I directed him into the bath - I don't know now. Q: So you may have touched his penis without a tissue, without a towel to direct it into the bath? A: Because it was very small… Q: So you now agree that you touched AM without a towel with your hand and directed his penis to urinate into the bath? A: Probably." [t 89.47- 90.25]. 19 The plaintiff underwent six operations for the first stage of the repair of hypospadias, those being in December 1987, May 1988, September 1988, May 1989, October 1992 and 15 March 1993. The plaintiff's specialist was Dr Kern and some of his reports are in evidence. It is possible that the plaintiff did stay at KW's unit when he was recovering from one or both operations which took place in September 1988 and May 1989. In April 1989, Dr Kern reported that when the plaintiff urinated the stream tendered to veer to the right. KW asked the plaintiff [t 46.54-59; 47.1-4]: "Q. Is it true you didn't go to the toilet, you done your business in the bath because you couldn't reach up to the toilet, you were that sick, Nanna and I were in there with you? A. That is not my recollection of things. The only time I had help was when I asked for it. When I would ask for it was when I was in pain and then I would request help. There was not an instance where I needed someone to accompany me every single time." 20 It was put to KW that he had directed AM to urinate in his (KW's) mouth, and that he had been naked in front of AM: "Q: And on many occasions you directed [AM] to urinate into your mouth? A: I wouldn't do that, you wouldn't do that to an animal, and I have had several animals. Q: And on at least one occasion you were naked in front of him? A: I was probably going to the bath or shower…" [t 95.17-25] 21 The plaintiff did not remember going to KW's place with his grandmother after coming out of hospital. There were occasions when KW had taken AM out to buy him gifts when AM's grandmother had not been there [t 79.19-38]. It was again put to KW that he had been deliberately deceptive when asking AM questions in the witness box. "Q: You asked AM this question about presents… … …"I used to buy you presents, they were from me and your Nanna and Grandpa just for your birthday and Christmas, that's when we bought you presents", that's what you asked AM in the witness box? A: Yes, but I should have mentioned that, the other toys. Q: And other things that you bought? A: But they were minor. Q: Again you were being deliberately deceptive in the way you asked AM questions in the witness box to give the impression to her Honour that you only bought presents with his grandmother and grandfather and for birthdays and Christmas and at no other time…The impression you were trying to convey to her Honour by asking those questions was false? A: You are trying to confuse me. Q: Was it false or not? A: It must have been, you are confusing me in what you are saying, and I don't feel like giving everything up everything just for me to get out. He will get it in the long run. Q: You haven't even got a will? A: It is an understanding --

Q: You haven't even gone to the trouble to make a will? A: Because he's only young.

Q: You are old, you could die tomorrow? A: I have it in writing at home somewhere, it was always done with the intention he would get it in the long run." [t 97.27- 98.13] 22 It was put to KW in cross-examination that he had made several false representations on the occasion of service of the statement of claim in this matter by a Mr King: "Q: And you said to [Mr King] on that occasion that there was always someone there with [AM] when he stayed with you. You said that didn't you? A: I probably did. … Q: You agree with me you lied to him? A: I probably did. Q: Why? A: I wouldn't know why [t 77.15-40] 23 And later: Q: Do you remember [Mr King] asking you questions where did you babysit, where were you living, here at this place, when you babysat in 1989, were you living here then… … … You answered Mr King, "I live at Hurstville but they used to come for dinner and that he [AM] never stopped here, there was always family here"? A: That's right, that was at Hurstville. … Q: Was it incorrect when you said that "He never stopped here, the family was always here", was that incorrect? A: It was daytime. Q: But what about night-time when you were babysitting? A: But that was only twice…" [t 86.38 -87.51] 24 I carefully observed both the plaintiff and the defendant while they gave evidence. The plaintiff gave his evidence in a clinical and precise manner. I accept that the plaintiff to the best of his ability gave truthful evidence. He was not seeking to embellish the events that occurred while he was a child. As would expected the plaintiff's evidence as to the actual number of times sexual acts took place was not precise. 25 Dr Sara Williams, psychiatrist, treated the plaintiff in 1995 when he was 12 years of age. She confirmed that in 1995 that the plaintiff did not reveal the sexual abuse experience to her, but she said that his account of the sexual abuse is a true record of what he can recall. While ultimately it is for the Court to determine credibility of a witness and I have, I am reassured that there is medical evidence supporting the plaintiff as being truthful when recounting. 26 I formed the view that the defendant tailored his evidence to put himself in a most favourable light. When the plaintiff's Counsel demonstrated what he was saying was implausible, the defendant temporised, then resorted to either changing his answer or saying that he was confused. The Court repeatedly requested that the defendant refrain from telling it about the settlement negotiations which took place prior to the hearing (at a time when he had Counsel assisting him) yet he chose to reveal this information because he perceived that it would help his case. I accept that the defendant has medical problems. He said he suffered from bowel cancer and shingles but without the benefit of a medical certificate the nature and extent of his medical condition remained unknown. Overall, I reached the view that when at times the defendant said he was confused, he was not. I formed the view that the defendant's evidence was not truthful. I prefer the evidence of the plaintiff.

Findings of sexual assaults and indecent acts 27 I make a finding that KW babysat AM at KW's unit three or four times per year for a period of just over two years, that is AW was in the care of KW between six to eight times when the plaintiff was aged between five to seven years of age. 28 The plaintiff denied that he urinated in the bath. His evidence was that he urinated in the toilet. KW agreed that he went into the toilet with AM but KW said it was because AM could not pass water [t 17.54-56]. It was KW's explanation that he had to wipe the plaintiff's penis with a paper towel or toilet roll and that he may have touched his penis without a towel because it was small and he was directing AM's penis so that the urine went into the bath. I do not accept KW's explanation, particularly because of the manner in which it was advanced (I have reproduced the transcript portions of this topic earlier in this judgment). The plaintiff and the plaintiff's father denied that Edna, the plaintiff's grandmother was ever present at the unit so she could not have been at the unit, when AM went to the toilet. The defendant admitted that the plaintiff stayed overnight twice. The plaintiff said that KW touched him in the genital area but that this occurred infrequently. I make a finding that it is more likely than not, on the balance of probabilities, that KW touched AM in AM's genital area in the bathroom after the plaintiff urinated on two occasions. 29 I make finding that it was more likely than not that KW coerced AM to urinate in his (KW's) mouth on four occasions. I do not accept KW's denials nor his explanation that he would not do that because he would not do that to an animal and he has several animals. 30 The defendant admitted that at least on occasion he was naked in front of AW. I make a finding that on one occasion KW coerced AM to touch KW's genitals and AM complied. This assault took place when KW had taken off his dressing gown and was standing naked in his bedroom. The plaintiff was in his pyjamas. 31 The plaintiff due to his young age could not consent to these acts and assaults.

Causation and damages 32 The plaintiff's father recalled that AM had after a reasonably uneventful primary schooling. The plaintiff started to experience problems on the commencement of his high schooling at Newington College [t 49.46 - 50.10]. Together with his wife (AM's mother) he had, at this point, sought advice in relation to AM's mental health, from a local psychiatrist [t 50.12-15]. The plaintiff was referred to Dr Williams, a child psychiatrist. While the plaintiff was at Sylvania High School he underwent two further operations for second stage of repair of hypospadias, April 1995 and 11 May 1998. 33 In relation to the hypospadias Dr Kern a paediatric surgeon (report 22 February 1999) reported that the plaintiff has had several operations when he was approximately five years of age and that his last operation was in 1993 when he had a meatoplasty. Dr Kern reported that on examination the plaintiff had an excellent result both cosmetically and functionally and his not need to see him again. Dr Kern does not mention the operations for the second stage of repair of the hypospadias. There is no need to give consideration to this difference between the plaintiff's evidence and that of Dr Kern as it has no bearing on the outcome. The plaintiff had operations over the years for hypospadias, the precise number of which is irrelevant. 34 At the end of 1998 the plaintiff completed his Higher School Certificate. In 2001 the plaintiff enrolled in Bachelor of Commerce at the University of Wollongong. He completed the first semester but deferred his studies in the second semester. It is at this stage, the beginning of university, that the plaintiff psychiatric health started to deteriorate. The plaintiff's father recalled that AM had on failing to obtain his driver's licence for the first time gone to bed for two days and refused to come out of his room [t 50.37-51.08]. On failing the second time he had threatened "dire consequences", gone under the bed and refused to come out. Phillip M had thought at the time AM's reactions were extreme and out of proportion but did not understand why they were happening. Together with his wife he had sought counselling for AM. 35 It was when AM was 18 years that he began to cut himself and AM's father links it to the time he failed his licence test [t 51.51-52.24]. The cutting began as little scratches. Then one morning AM's mother had found him in bed with bandaged cuts extending from wrist to shoulder on both arms. AM had at a later stage required three stitches for a self-inflicted cut on his wrist. 36 From 28 November 2001 to 5 December 2001 the plaintiff was admitted to the Northside Clinic and treated with antidepressants and tranquilisers. From 10 December 2001 to 24 December 2001 the plaintiff was again admitted to the Northside Clinic and medicated with antidepressants and tranquilisers. He was diagnosed with a depressive disorder. 37 From 14 February 2002 to 2 March 2002 the plaintiff was admitted to the Northside Clinic and diagnosed with major depressive disorder. He was medicated with tranquilisers and antidepressants. In May 2002 the plaintiff wrote-off his father's company car. The plaintiff's father gave evidence of this incident when AM had borrowed his company car, lost control, had an accident and written the car off [t 51.10-40]. AM had not said anything about the accident on coming home but had taken every pill that he could find in the house and gone to bed. Phillip M had later checked on AM seen the empty pill packets been unable to awaken AM and had called an ambulance. AM was kept under observation for 24 hours at Sutherland Hospital and then stayed overnight in the hospital's psychiatric ward. From 1 June 2002 to 3 June 2002 the plaintiff was admitted to Sutherland Hospital suffering from drug overdose. 38 Between 5 June 2002 and 9 July 2002 the plaintiff consulted Ms Durning psychologist and it was during this period when AM first disclosed to Ms Durning the sexual assaults that took place when he was a child. In July 2002 he returned to the University of Wollongong to continue his second semester. In December 2003 the plaintiff and his girlfriend broke up. He wrote a suicide note and was admitted to Sutherland Hospital after cutting himself about 20 times on the wrists and forearms. On 27 December 2003 the plaintiff again cut himself and took a drug overdose. The plaintiff successfully completed his Bachelor of Commerce majoring in Finance at Wollongong University in July 2004. 39 Currently the plaintiff is in a relationship with his girlfriend and has been so for four months. He is happy with the relationship and hopes that it continues. The plaintiff has been employed by the Australian Taxation Office in its graduate program on a full time basis since February 2005. The reports from his supervisors to date have been good. He reports that he has no difficulty with the work.

Medical opinion 40 Dr Williams (report 19 June 2003) opined that the plaintiff had a partially treated depression. At that time the plaintiff was taking an antidepressant and would need to continue to do so indefinitely. Dr Williams further opined that there was a family history of psychiatric illness which may have contributed to the plaintiff's vulnerability and while the extent of this contribution to his difficulties was unknown it was the abuse which precipitated the onset of his emotional disturbance and disrupted his education. Dr Williams stated that the cluster of self-destructive behaviour described by the plaintiff was frequently found in the history of abused children. 41 Dr Jonathan Phillips a consultant psychiatrist gave evidence via videolink and had provided two written reports, namely those dated 1 and 15 February 2005. In his latter report and after giving evidence, Dr Phillips opined that the plaintiff is likely to experience ongoing handicap as a consequence of both his psychiatric problems (dysthymic disorder, episodic major depressive disorder) and his personality problems (broadly within the borderline spectrum). Dr Phillips anticipated that the plaintiff will continue to have difficulties maintaining his sense of identity and maintaining a sense of self-worth, and that he will continue to react adversely to perceived setbacks in his life with development of significant depressive symptoms and/or self-destructive or suicidal thinking and behaviour. According to Dr Phillips it is unusual for any person who has suffered sexual abuse in childhood years to make full psychological recovery and he did not anticipate that the plaintiff would achieve this. 42 Dr Phillips is of the view that in the absence of treatment the plaintiff has a poor long-term prognosis including the presence of ongoing psychiatric symptoms and personality problems. The plaintiff will also have difficulties making friends, maintaining intimate relationships and he may experience poor motivation in the workforce. The plaintiff's prognosis will improve with treatment. 43 Dr Phillips in examination-in-chief on the issue of causation stood by his conclusion contained in his report of 15 February 2005 namely that "the episodes of sexual abuse remain as the outstanding stressor in the causal chain leading to [the plaintiff's] now deeply entrenched psychological problems" [t 66.44-48]. Dr Phillips considered that the plaintiff's hypospadias had not contributed significantly to his psychological problems: "the sexual assaults [are] clearly the central event rather than the fact [the plaintiff] had hypospadias successfully corrected" [t 66.50-57]. Dr Phillips noted that hypospadias once corrected ceased to be a psychological issue provided the boy could achieve erection, orgasm and sexual intercourse at the appropriate times [t 63.24-42]. 44 The defendant did not rely upon any medical reports as he had not sought to have the plaintiff medically examined. Hence, the defendant was given the opportunity to cross examine Dr Phillips. In these circumstances the Court asked Dr Phillips a question about the role hypospadias as a cause of the plaintiff' medical condition. As the plaintiff had given evidence that a stressor in his life caused him to "focus on things that have been wrong in my life, the physical aspects of when I was born and the incidents alleged" in referring to hypospadias and the alleged assaults [t 64.26-46]. After this answer was read to Dr Phillips he expressed some surprise that the plaintiff had given weight to the hypospadias and said that the plaintiff's reaction to his hypospadias could be intensified by sexual assault in that area of the body but did not concede this was in fact the case here [t 64.40-65.14]. 45 Dr Phillips stated that the plaintiff's work is potentially a "fairly safe area" and that the plaintiff's "unsafe areas are going to be in the interpersonal relationships and activities beyond the workplace" [t 60.12-18]. Even though the plaintiff's current work situation was positive, being his committed and satisfactory involvement in a training program, Dr Phillips expressed doubts as to the plaintiff's ability to work steadily without breaks and to hold a continuous job due to the influence of other difficulties in his life "interfering with his capacity to sustain gainful employment" [t 68.53 - 69.04]. 46 Dr Wendy Roberts, clinical psychologist, concluded, in her report of 29 March 2004, at 7.10-13, that the incidents of reported abuse against the plaintiff had been a significant factor contributing to the plaintiff's "current severe emotional problems". Other contributing factors included his sensitivity over hypospadias and perhaps an incident where his mother had been trapped in an upturned boat. Dr Roberts believed that the plaintiff met the criteria for a Dysthymic Disorder with periodic deterioration into Major Depressive Episodes with some borderline features and social anxiety "all of which need treatment". Dr Roberts opined that the effect of the sexual assault on the plaintiff will likely lead to a disruption of his earning capacity and that he will have difficulty coping under pressure however noted that this was a little difficult to predict as the plaintiff had at that time not yet finished his degree. 47 Dr Prem Naidoo, consultant and treating psychiatrist, stated in his report of 2 June 2003, that the plaintiff appeared to have developed a chronic major depressive disorder with significant anxiety and dissociative attacks. On the issue of causation Dr Naidoo concluded that the plaintiff's illness "certainly was precipitated in a major fashion by the sexual assaults perpetrated against him". 48 Dr Naidoo expressed a similar view to Dr Phillips in his report of 14 March 2004 where he stated that the plaintiff had continued to display significant psychological vulnerability, that the plaintiff was always going to be vulnerable to stressors and that his social anxiety could be expected to interfere with his work functioning post-university. Ms Patricia Durning, psychologist, noted in her brief report of 19 May 2004 that the alleged sexual abuse had had a major impact on the plaintiff's development and took the view that plaintiff when ready would benefit greatly from supportive counselling and therapy. 49 All of the doctors agree that the episodes of sexual abuse remain as the outstanding stressor in the casual chain leading to the plaintiff's now deeply entrenched psychological problems. I accept and agree with the medical opinion that the sexual acts and assaults perpetrated upon the plaintiff by the defendant caused the plaintiff psychological and psychiatric problems, the most serious being major depression.

General damages 50 To assess damages, I looked for some guidance from other decided cases. Like Wilson J in Paten v Bale (1999) 135 QLD 36, I have found surprisingly few Australia cases on the assessment of damages for civil assault. In that case, Wilson J approached the assessment of damages for five assaults by awarding damages for each incident, on the basis that each constituted a separate tort. However, as Wilson J commented that there is a certain unreality about this, because the abuse was ongoing, and the incidents in relation to which the plaintiff had sued were representative only. This problem was touched upon in an article by Bruce Feldthusen "The Canadian Experiment with the Civil Action for Sexual Battery", Torts in the Nineties, Mullany (ed) (LBC Information Services, 1997: 274-304), at 279. 51 It is my view that to approach damages by assigning a monetary value to each assault is artificial. In Paten, Wilson J attributed 80% to the first assault and 5% to each one thereafter. In this case before me it is my view, after the first assault occurred, each subsequent act made the sexual abuse more firmly entrenched in the plaintiff's mind. The approach that is most appropriate is to assess a global sum to reflect general damages. If I had to attribute a monetary value to each one, I would apportion the money equally between them. 52 I refer to the injuries and disabilities which have been described earlier in this judgment and to which I have taken into account. The major psychiatric disorder is major depression when the plaintiff is stressed, the memories of the sexual abuse come to the fore. The plaintiff has a number of occasions tried to kill himself. He has been admitted to as a patient into psychiatric care. The seriousness of the plaintiff's condition was well highlighted when AM was giving evidence. He clinically described the difference between self-cutting in order to release pain and self-cutting to kill himself [t 32.04-54]. Inherent in the former scenario is a sensation of being in control of the experience of pain through the self-infliction of physical pain, "watching yourself…slicing your hand". However soon after cutting superficially and seeing blood flow the feeling of release dissipates and you "do another one". You recognise the possibility of drifting into unconsciousness or dying but do not care. In the former scenario the cutting is deeper and the intent is "to kill myself". The plaintiff suffers and will continue to suffer from depression which will need treatment and medication. He will continue to have difficulty with interpersonal relationships and it is unlikely that the plaintiff will make a full psychological recovery. 53 I also take into account that the plaintiff has been able to complete his university degree and obtain full time employment and more likely go on to have a successful work life. Taking all these factors into account I assess general damages at $210,000.00. 54 Past general damages equates to $150,000.00. Future general damages makes up the assessment of general damages and it is in the sum of $60,000.00. It was at 11 years that the plaintiff began to feel more strongly about that what occurred had been wrong and he was tainted. While he still feels this way, this feeling has lessened over the years so I apportion a large portion of the general damages to the past. Interest on past general damages $150,000.00 at 2% for 12 years equates to $36,000.00. 55 General damages and interest thereon totals $246,000.00.

Past out of pocket expenses 56 The plaintiff claims for medical and other expenses incurred as a result of the injuries and disabilities. He received treatment for the psychological and psychiatric sequelae from his general practitioner Dr Ong, Dr Naidoo and Dr Williams. These costs are itemised and totalled in Ex B, which totals $5,515.91 and I allow this amount. Interest on past out of pocket expenses has been calculated at $1,654.00 and I allow this amount. 57 Past out of pocket expenses and interest total $7,169.91.

Future out of pocket expenses 58 Dr Phillips reiterated that the plaintiff currently had significant unmet treatment needs and that he will require a combination of psychotherapy and medication (antidepressant and possibly major tranquilizing agents). The plaintiff will need at least 50 hours of psychotherapy (this providing him with the opportunity to rebuild psychological resilience) with monthly follow ups. Dr Naidoo similarly concluded that the plaintiff should be involved in ongoing psychotherapy on a weekly basis and would need to stay on an antidepressant for a very extended period of time and quite possibly indefinitely. 59 The plaintiff has a life expectancy of 55.4 years. The plaintiff claims consultations for the first year at 50 x 148.50, plus medical expenses of $5,200.00. This equates to $12,625.00. This sum is necessary and reasonable and I allow this amount. 60 After one year, the plaintiff claims consultations with specialists at $148.50 x 12 ($34.27 per week) and medical expenses at $100 x 12 ($23.07 per week). This totals $57.34 per week multiplier 1,418.0 = $81,308.12 deferred 1 year 0.971 x $81,308.12 equates to $78,950.18. I allow this amount as being necessary and reasonable. 61 The total amount I allow for future out of pocket expenses is $91,575.18.

Economic loss 62 The plaintiff submitted that as a result of the psychological and psychiatric sequelae of his injuries he will be severely disadvantaged on the open labour market when competing for positions of employment which he is otherwise qualified by reasons of his education and experience. The plaintiff claims loss of income as a result of his failure to commence employment in December 2003 due to the deferral of studies for the first semester of 2002. The plaintiff submitted that his suffers periods of severe exacerbation of the symptoms that his is unable to work for periods of time while he undergoes intensive treatment and claims for loss of earnings and loss. The plaintiff also claims for loss of opportunity and diminution in earning capacity on the open labour market. 63 At the time of the assaults the plaintiff was a primary school student. Between 1995 and 2000 he attended high school and obtained his higher school certificate. From February 2001 to July 2004 the plaintiff attended university and graduated with a degree of Bachelor of Commerce (Finance). During this period the plaintiff was periodically absent from school and university as a result of the psychological sequelae of the assaults and he deferred his university studies for the first semester of 2002. 64 From 9 February 2005 the plaintiff commenced employment as a graduate administration assistant with the Australian Taxation Office (ATO) on a twelve month graduate program. He currently earns $803.27 gross per week ($582.59 net per week). At the conclusion of the graduate program the graduates who continue employment with the ATO are anticipated to receive remuneration of $869.73 gross per week ($646.00 net per week). 65 The medical opinion is that the plaintiff will not be able to work steadily without breaks or hold down a continuous job due to other difficulties which will occur in his life. As the plaintiff himself said, that when something goes wrong in his life, such as breaking up with his girlfriend as it brings back the sexual assaults and hypospadias and he has difficulty coping. He is not always able to recognise that he had reached the point where he needs psychological help. 66 The approach in relation to future economic loss is set out in State of NSW v Moss [2000] NSWCA 133. In Moss, Heydon JA (as he then was), at [66], referred to two principles, the first being that it is desirable for precise evidence to be called as to what the plaintiff would have been likely to earn but for the injury. The second is that the failure to call such evidence does not necessarily result in selection of only a nil or nominal figure as damages for impaired earning capacity. 67 Dr Phillips said that the plaintiff will have periods of work when he becomes stressed and this will be for longer periods than most and he will have more difficulties than most getting another job. The approach which is more appropriate is to allow a global sum as this loss is not capable of precise quantification. The plaintiff is a young man just starting out in his career and has 42 years of working life ahead of him. This makes the task more difficult. Doing the best I can, I allow the sum of $100,000.00. I have already factored into this sum an allowance for vicissitudes. 68 On a final note, the defendant was unrepresented. He did not raise the issue of the Limitation Act 1969 (NSW) in his defence. Even if he had the plaintiff could have applied under ss 58 and 60G & I or maybe s 60C & E seeking for an extension of time. One important factor which would have been considered would have been that the plaintiff disclosed the sexual abuse to a medical practitioner for the first time in June 2002. On 6 August 2003, just over one year after the sexual abuse was linked to the plaintiff's psychological and psychiatric damage, these proceedings were commenced. 69 I enter a verdict and judgment in favour of the plaintiff in the sum of $444,745.09. 70 Costs are discretionary. Costs normally follow the event. The defendant is to pay the plaintiff's costs as agreed or assessed. 71 The orders I make are:

(1) I enter a verdict and judgment in favour of the plaintiff in the sum of $444,745.09.

(2) The defendant is to pay the plaintiff's costs as agreed or assessed. SCHEDULE $ General damages $246,000.00 Past out of pocket expenses $7,169.91 Future out of pocket expenses $91,575.18 Economic loss $100,000.00 TOTAL $444,745.09

06/09/2005 - Amount of general damages amended - Paragraph(s) 71

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (27 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (1)