"B" v Reineker

The Facts

1. The plaintiff was born in October 1987. When she was about five years old, she moved with her family to Moree. In 2000, when the plaintiff was 12 years old, she was enrolled in Year 7 at the School. At the end of the year, she met the defendant at the Four Square Calvary Christian Church, where she attended with her family. The defendant, a single parent, went to the same church with his two sons, one of whom was two years older than the plaintiff and the other, two years younger. The defendant befriended the plaintiff's parents.
2. In 2001, the defendant was engaged by the School as a teacher. He taught various classes, including the plaintiff's Year 8 class, and various subjects, including mathematics, design and technology and physical education. He was also the sports teacher for the whole school. It was not long before the defendant started training the plaintiff and one of his own sons in athletics after school.
3. The plaintiff was having difficulty with mathematics. The defendant offered to tutor her after school, which gave him access to her in a private setting. He used the opportunity to touch her inappropriately. He began by putting his hand up her skirt and touching her vagina. The plaintiff felt uncomfortable but did not report it for fear that she would get into trouble.
4. By about September 2001, the defendant also began coaching the plaintiff and one of his sons at the local swimming pool. The defendant would compliment the plaintiff on the shape of her body and, on one occasion, he asked her to remove her swimming costume in front of him. She refused his initial request. Later, when the defendant brought her to his home after training, she agreed to remove her swimming costume to permit him to massage her back as she had lumbar pain from athletics training. As he massaged her back, her bottom and her breasts, she became aware of his erect penis. She said of this incident: "At the time I thought the way I was feeling was my fault and Darryl wasn't doing anything wrong. I didn't want to upset Darryl. I thought that because Darryl was my school teacher and swim coach, and he was an adult that he wouldn't be doing the wrong thing. I trusted him."
5. As the days passed and the massages continued the plaintiff became accustomed to them and became less embarrassed by them.
6. In 2002, when the plaintiff was in Year 9, the defendant began to teach agriculture to her class. There was a shed on the school grounds, known as the "Ag shed" in which plants and equipment were stored. After school, the defendant invited the plaintiff into the Ag shed. He shut all the doors so that no one could see them. When he was inside the Ag shed with the plaintiff, the defendant kissed her, made her touch his penis.
7. On one occasion the defendant asked the plaintiff to kiss him. He kissed her on the lips and put his tongue in her mouth. The kiss continued for 10 to 15 seconds. This was the first time the plaintiff had ever experienced such a kiss.
8. Over time the defendant's behavior towards the plaintiff became more intrusive. When he massaged her he inserted his finger into her vagina. Later, just before she turned 14, he inserted his penis into her vagina. The act of penetration hurt her so much that she screamed in pain. He withdrew before ejaculation and then masturbated himself to ejaculation. Her uncontroverted evidence about this incident was: "I remember asking myself if what Darryl had done was sex. I didn't even know that it was sex at the time. I promised myself that it wasn't and that I wouldn't tell anyone and I would pretend it didn't happen. I was also very upset because my parents had raised me as a Christian and I believed I was to have sex after marriage. I thought that if I had just had sex with Darryl I would get in trouble. It made me feel guilty."
9. After this first occasion of penile intercourse, the defendant had sexual intercourse with the plaintiff regularly after school and on the weekends. She felt that she had no way of breaking the routine. In her uncontroverted evidence, the plaintiff explained that she had a poor relationship with her own father and regarded the defendant as showing her the love and affection she wanted, but did not receive, from her own father. The defendant told her that he wished she was his real daughter and encouraged her to call him "Dad". The plaintiff complied as she wanted the defendant to love her as a father would. At times, the defendant would threaten to kill himself if she did not do as he wished.
10. On the plaintiff's 15th birthday, in October 2002, the defendant visited her at home. He took her into the bathroom and told her to kneel down on the floor. He approached the plaintiff from behind and inserted his erect penis into her vagina, then withdrew and ejaculated into his hands. He then said, "Happy Birthday".
11. In June 2003 the defendant took students from the School, including the plaintiff, to an Outward Bound excursion. The defendant sat next to the plaintiff on the bus, put a coat over their laps and fondled the plaintiff during the journey.
12. As the intimacy between the defendant and the plaintiff increased, the plaintiff became more and more isolated from her contemporaries. She became depressed. She cut her arms and legs. She still bears a scar on her forearm from one of the more serious cuts she inflicted on herself. She withdrew from her family. She divided her time between school; being with the defendant at his place; and confining herself to her own bedroom when at home. She stopped playing sports. She felt trapped and believed that there was no one to whom she could turn.
13. In September 2003 the defendant resigned from his position at the School. The plaintiff transferred to another school in the area where she remained for a single semester before leaving Moree for Sydney in June 2004. She lived with her brother for a few months but was required to leave because of conflict with her brother's girlfriend. She sought refuge with the defendant. Her parents, who were not aware that the defendant was sexually assaulting her, agreed to this living arrangement.
14. In April 2005 the plaintiff became pregnant. The defendant threatened to kill himself if she did not terminate the pregnancy. The defendant arranged for the termination which was carried out at the Moree District Hospital on 11 May 2005. Investigations revealed that the pregnancy had ended prior to the termination. The defendant arranged for the plaintiff to go on the contraceptive pill thereafter. In December 2005, the plaintiff had an ultrasound that showed that she was again pregnant. A further ultrasound identified a "blighted ovum", which was removed by a dilation and curettage which was performed on 21 December 2005.
15. I note that the particulars of the assaults relied upon (set out above) do not include the events of 2005. Nonetheless the plaintiff was directed to file and serve statements and other evidence on which she relied. Her statements and the evidence served established the narrative of what occurred in 2005. The hospital records associated with both pregnancies were also served. Had the defendant taken part in the proceedings he would have appreciated that the plaintiff intended to rely on these events in her claim against him and could, if he had seen fit, have objected to the evidence on the ground that it fell outside the particulars. It is difficult to see how, in those circumstances, he could have resisted the expansion of the particulars or the admission of the evidence. Moreover, these assaults fall within the period alleged in the pleadings. A failure to amend particulars to correspond exactly with the facts established by the evidence does not preclude reliance on such facts, particularly where they fall within the pleaded case: Dare v Pulham (1982) 148 CLR 658 at 664. In these circumstances, I have had regard to the evidence of the events in 2005 and taken it into account on liability and in the assessment of damages.
16. When the plaintiff was 19, she moved from the defendant's house to Armidale to do Year 12 at TAFE. The defendant visited her and continued to have sexual intercourse with her. The last occasion on which the defendant had sexual intercourse with the plaintiff was in 2008 at Christmas time.

The aftermath

1. In March 2009 the plaintiff attended a talk conducted by Patrick Moore, a motivational speaker. Afterwards the plaintiff contacted Mr Moore and told him what the defendant had done to her. As a result of Mr Moore's encouragement, the plaintiff told her mother and sister what had happened with the defendant. She also rang the defendant and told him that she did not want to see him again. Her contact with the defendant caused her great distress.
2. In April 2009 the plaintiff sought medical assistance for her mental state. Her general practitioner, Dr Rajalingham, diagnosed post-traumatic stress disorder and recommended that she see a psychologist and report the matter to the police. In July 2009, the plaintiff went to see Wendy Oxley, a clinical psychologist at Port Macquarie, and was treated for the depression.
3. In August or September 2009 the plaintiff met Sean Lyons, who became her boyfriend. At that time the plaintiff was still in contact with the defendant. According to Mr Lyons' uncontroverted evidence the plaintiff and the defendant would talk for a long time on the phone. Mr Lyons often heard the plaintiff call the defendant "Dad".
4. In October 2009 the plaintiff gave a detailed statement to police at Port Macquarie Police Station in which she set out the events referred to above.
5. The plaintiff lived with Mr Lyons for the first three months of 2010 at Mr Lyons' home in Wauchope. During that period the plaintiff was violent towards Mr Lyons, who believed that her conduct was as the result of her anguish at what the defendant had done to her. Mr Lyons' evidence was: "The more [the plaintiff] talked about [the defendant] the more she went downhill. She would have really high highs and really low lows. She would be really angry one minute and in tears the next. [The plaintiff] suffers from serious anxiety issues. She would have sleepless nights. I would find her wandering around the house at all hours of the night. In the end, she had to find somewhere else to live."
6. On 19 March 2010 Mr Lyons accompanied the plaintiff to the offices of Priest McCarron, solicitors, in Port Macquarie. She lodged a claim for victim's compensation in respect of the defendant's conduct.
7. On 2 May 2010 the plaintiff rang the defendant. I infer from the form of the transcript that the telephone call was recorded by police pursuant to a warrant. The plaintiff denounced the defendant for sexually assaulting her when she was underage. She asked him to turn himself in. The defendant admitted the conduct in broad terms. He expressed concern about the effect on his own sons if he were to turn himself in. He intimated that he would kill himself. He also made the following statements in the course of the recorded conversation: "What I did to you was unbelievably wrong. I have no answers for it. I have no idea what I did, why I did it." "No, no, I did the wrong thing. You've made that clear and I know I've done the wrong thing. Don't worry. You know, I've, I didn't want this to happen with you. I can guarantee you that. I actually really really enjoyed your company and your, actually, your father's company. But that's irrelevant. And every time we used to do this sort of thing, we used, yep, it was, I knew it was wrong, but I just, I don't know, I, like I say, I'm not making excuses, I'm over it. It has never happened. I've never looked at another young girl that way in my whole life. And I never would. I don't know what has happened. But once is too much and thanks for waking me up to that. And I really think I was, I don't know I just, I've got so much on my plate. But, anyway, I'll do that, I'll give you a call around Thursday, if that's OK."
8. In February 2013 the plaintiff met "J" at the Coastside Church at Port Macquarie. They did not have sexual intercourse or live together before they were married. Although the plaintiff disclosed to J in broad terms what the defendant had done to her, J had no idea either of the detail, or the effects on the plaintiff, of the defendant's conduct, until they married in May 2013.
9. J's uncontroverted evidence is that the plaintiff sometimes calls him "Daddy" and reverts to the mindset and behavior of a three-year old. She is upset by small things and flies into a rage. On such occasions she regresses to child-like conduct. The plaintiff told Dr Parsonage, a medicolegal psychiatrist whom she consulted for the purposes of the proceedings, that on one occasion she had cut up most of her husband's clothes. J's evidence was that he tends to work hard to enable him to deal with and manage the stresses of the plaintiff's mental state.
10. J's uncontroverted evidence is that the plaintiff suffers from the following problems: "a. She has a hysterical inability to cope with minor incidents and changes. b. She is very sensory and has issues with tactile contact, especially when she is in one of her episodes where she is having trouble coping. c. She is easily startled by loud noises such as our dogs barking. d. She has fits of anger that lead to violent outburst. In the two years that we have been married, she has broken two television sets, three computers, two PlayStations and mobile phones. She is very upset after these episodes, which usually last from 30 minutes to an hour. e. She keep[s] herself very busy until something goes wrong and triggers an episode. These episodes are sometimes two or three times per day. There is the occasional day where she would not have an episode. f. On the day of making this statement, 30 April 2015, [the plaintiff] was unable to get out of bed because it was raining. She didn't have a raincoat and this triggered an episode where she was unable to go to work. g. A couple of times each month [the plaintiff] has episodes where she will be unable to attend work. She will telephone the office of the hospital where [she] works and she says she cannot come in because she is sick. I suspect that they have some idea that she has some issues. h. Things like her car being parked in or having difficulty getting the car out of a parking position result in her crying on the telephone to me. i. [The plaintiff] cannot cope with change to an extent that the same dvd must be played on our tv all day and night even if we are not home."
11. J described in his evidence the plaintiff's capacity to present herself in three distinct ways: first, the state she is in when with her family where she appears to be happy; secondly, her professional state where she presents in a very controlled manner; and thirdly, her "at home" state where she lets her defences down and becomes hysterical at the slightest trigger, including any disruption to her routine. J's evidence is that the plaintiff has two "therapy" dogs which provide her with comfort and support and appear to increase her ability to cope. The first was purchased on the recommendation of one of the plaintiff's treating medical practitioners.
12. In February 2014 the plaintiff and her husband moved to Sydney. She obtained employment at a hospital in the Sydney metropolitan area as an assistant in nursing where she has worked full-time since 28 July 2014. Her contract continues for two-years. J obtained employment in his chosen field as a sound engineer.
13. On 21 February 2014 the plaintiff prepared a victim impact statement which she read out in Court at the sentence hearing in respect of the defendant. In the statement, the plaintiff described the effects of the defendant's conduct on her. The evidence established that she has been hospitalized at least three times as a result of her attempts to commit suicide: the first on 26 November 2010; the second on 12 December 2010 and on 15 December 2010; and the third on 2 February 2011. On another occasion, in April 2011, she presented herself at Accident & Emergency at Port Macquarie Base Hospital for treatment after she had overdosed.
14. Her victim impact statement included the following: "I suffer from PTSD (Post Traumatic Stress Disorder), depression, anxiety, flash backs and anger. My flash backs don't allow me to sleep through the night. I have reoccurring nightmares that continually wake me up completely soaked through clothing and my bedding. Being an angry person has effected [sic] every single relationship I have ever had, especially loved ones. Suffering from PTSD, depression and anxiety effects me [sic] on a daily basis, its [sic] hard for me to gain employment and when I do I am unable to work full time because of all the physical side affect [sic] I have to deal with. A child is shaped and moulded by the actions of people that surround them and their environment. Because I grew up in a sexually abusive relationship with a person that held authority in my life. It has completely altered my way of thinking and way of life. How you think affects the way you feel, how you feel affects what what [sic] actions you take. The sexual abuse has created false and negative thinking patterns in my life, it has cause[d] me to feel only negative feelings, creating negative actions."
15. Since January 2015 the plaintiff has attended Lynne Tull, a psychologist, weekly.

Dr Natalie Green

1. The plaintiff was referred to Dr Natalie Green for the purposes of assessment of her functioning capacity which was conducted on 18 May 2010. The findings on psychometric assessment indicated that she was suffering from substantial distress and severe impairment in functioning.
2. In September 2011 the plaintiff was assessed by Alison O'Neill, psychologist, who summarized the results of psychometric testing as follows: "In sum, psychometric testing with [the plaintiff] suggests that she is a young woman of at least average intelligence, who has marked dysfunction in her personality characteristics. She was found to be someone who is chronically socially avoidant, emotionally detached and passive in her interactions with others. Such dysfunction undoubtedly impacts her day to day functioning. Moreover, her profile indicates she is experiencing clinical levels of anxiety, and specifically post traumatic stress, as well as depressive symptoms. These findings were consistent with [the plaintiff's] presentation and the history provided."
3. Ms O'Neill considered that the plaintiff's exposure to "innumerable acts of sexual abuse over a period of nearly ten years by a trusted member of the community who took on a father figure role" had resulted in the following long term effects: depression, self-destructive behavior, anxiety, feelings of isolation and stigma, poor self-esteem, difficulty trusting others and sexual maladjustment.
4. The plaintiff has been assessed for the purposes of these proceedings by Dr Parsonage, a psychiatrist, at Port Macquarie. Following the first assessment on 20 October 2011, Dr Parsonage diagnosed Post Traumatic Stress Disorder and Major Depressive Disorder. He opined that her ability to form mature intimate relationships has been "severely impaired". Although he considered that her disabilities would continue "indefinitely", he opined that her symptoms would improve with treatment in the next few years, although complete remission was unlikely. Dr Parsonage said that her anxiety about dealing with the public, and with men in particular, would be likely to compromise substantially her capacity to work in many occupations.
5. In his report dated 21 May 2013 Dr Parsonage addressed the question of the plaintiff's mental capacity. He opined that she was a "disabled person" within the definition in s 11(3)(b)(i) of the Limitation Act until at least 2009. In other words, Dr Parsonage considered the plaintiff to have been relevantly incapable of, or substantially impeded in, managing her affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of an impairment of her mental condition. I infer that this report was prepared to support the plaintiff's application for extension of time against the School. Nonetheless, Dr Parsonage's opinion is relevant to an assessment of the circumstances in which the torts were committed. Dr Parsonage explained that: "Her [the plaintiff's] relationship with Mr Reineker after she was 18 was severely distorted by the long term abuse she had experienced from Mr Reineker. While she was living with Mr Reineker she called him "Daddy" and introduced him to other people as her father. He treated her like a child in that she had chores to do and he cooked her meals, but at night he would try to have sex with her."
6. In his report dated 10 June 2014 Dr Parsonage noted that the plaintiff was seeing Ms Tull weekly and that she was taking Pristiq (an anti-depressant) and Valium. His diagnosis at the time of the report was as follows: "[The plaintiff] continues to be affected by the abuse she experienced which has affected her personality development. She exhibits some borderline personality traits including unstable and intense interpersonal relationships, recurrent self-harm, affective instability, as well as inappropriate intense anger. She continues to exhibit a full syndrome of Post-traumatic Stress Disorder and Major Depressive Disorder which is currently in partial remission."
7. Dr Parsonage considered the plaintiff to require long-term psychiatric and psychological treatment arising from the defendant's abuse. He estimated that she would require weekly psychological therapy for a period of two years at a cost of $200 per session, and further therapy less frequently thereafter. Dr Parsonage considered that her medication ought be reviewed and supervised by a psychiatrist and that she would require 10 psychiatric consultations at a cost of $300 per consultation.

Liability

1. The plaintiff has established her cause of action in trespass against the defendant. I accept her uncontroverted evidence of the assaults which he committed on her during the period 2001 to 2008. The plaintiff was below the age of consent (16) for a large proportion of the assaults. Consent is a defence to assault. The onus of proving it lies on the defendant. The defendant has neither alleged nor proved consent. However, as he did not appear at the hearing, I propose to address the question in light of the plaintiff's evidence.
2. The evidence established that while the plaintiff was still a minor and a pupil in the defendant's class, he abused his position of trust and authority. He groomed her and then exploited and corrupted her for his own sexual needs and desires. In these circumstances I consider that it would be unreal to regard her as being able to form a judgment in her own interests whether to consent to his advances merely because she had reached the biological marker that legally corresponded with adulthood. Indeed, I consider that the effect of his prior conduct was to deprive her of the power to object, in any substantial way, to his assaults on her. She was, in my view, doing no more than submitting to his acts in circumstances where he had deprived her of the ability to resist.

Damages

1. As the tort of trespass is an intentional tort, the Civil Liability Act 2005 (NSW) does not relevantly apply. Accordingly damages are to be assessed by reference to the common law.

General damages

1. The plaintiff claimed general damages, including aggravated and exemplary damages. Mr Lakeman, who appeared with Ms Webb for the plaintiff, submitted that $350,000 was an appropriate figure for general damages whether or not I considered that exemplary damages or aggravated damages ought be included.

Whether aggravated damages ought be awarded

1. Where the tort in respect of which general damages are to be awarded is trespass and the nature of the trespass is sexual assault, it appears to me to be inevitable that the circumstances and manner of the wrongdoing give rise to substantial hurt and damage. It is not necessary in these circumstances to identify separately any award for aggravated damages since this element is part of the general damages.

Whether exemplary damages can be awarded

1. There can be little doubt that the defendant's conduct meets the description required for an award of exemplary damages of "conscious wrongdoing in contumelious disregard of another's rights": Whitfield v De Lauret & Co. Ltd (1920) 29 CLR 71 at 77 per Knox CJ, referred to with approval in Gray v Motor Accident Commission [1998] HCA 70; 196 CLR 1 at [14]. However, it is not appropriate in the present case to award exemplary damages against the defendant. Exemplary damages extend beyond compensation and are intended to fulfill the purposes of punishment, denunciation and deterrence. These are the very purposes served by the imposition of a sentence on an offender: s 3A(a), (b), (e) and (f), Crimes (Sentencing Procedure) Act 1999 (NSW). The defendant has been convicted of six offences which include the conduct that constituted the trespass to the plaintiff, on which her claim in the present case is founded. He is presently serving a term of imprisonment for those crimes. This amounts, in my view, to substantial punishment which operates as a bar to an award of exemplary damages: Gray v Motor Accident Commission at [40] for the reasons given at [41] - [46].

Award for general damages

1. I consider the figure of $350,000 proposed by Mr Lakeman to be an appropriate award. The plaintiff has suffered substantial harm. She has been deprived of a normal adolescence and the opportunity to discover and enjoy sex in an appropriate way. Her willingness and ability to trust others, as well as her capacity to form intimate relationships, have been substantially compromised by the defendant's wrongdoing. The defendant's conduct blighted her past and will continue to affect her future. Although it is to be hoped that treatment will ameliorate some of the effects of the assaults, the plaintiff will suffer by reason of the defendant's conduct for the rest of her life.
2. Of the total figure of $350,000, I allocate $200,000 to the past and $150,000 for the future. The plaintiff is entitled to interest on the component for the past. The applicable rate is 4%: MBP (SA) Pty Ltd v Gogic [1991] HCA 3; 171 CLR 657. I consider it to be reasonable to regard the pain and suffering for the past as having been sustained for the whole of the period from the time of the first assault relied upon. The precise timing of this event is not revealed by the evidence. However, as the first act of penile/ vaginal intercourse took place before the plaintiff's 14th birthday I propose to allow interest from July 2001 to the present day, a period of 14 years (calculated as $200,000 x 14 x 4% x ½ (to take account of the whole period)). Accordingly the award for general damages is the rounded figure of $410,000, being $350,000 plus $56,000 for interest.

Past out of pocket expenses

1. I assess an amount for past out-of-pocket expenses as a rounded amount of $33,000. This sum comprises the following amounts. The amount for past medical expenses (which is to be repaid to Medicare) is $15,351.65. The sum of $12,580 claimed is referable to consultations with Ms Tull. I allow $5,000 for pharmaceutical medication. The actual amounts spent on pharmaceutical medication are not established precisely by the evidence. The amount awarded is $10 per week for 500 weeks.
2. The evidence is that the plaintiff has had first one and then a second therapy dog. I regard the cost of a single dog as being reasonable. The evidence is that the weekly cost of a dog is $200 per week. The evidence does not reveal how that sum is comprised or for what period the plaintiff has had each dog. In these circumstances I make no allowance for the past cost of a dog or dogs.
3. There is evidence that the plaintiff trains at a gym with a trainer (at a cost of $170 per fortnight). I accept that this is beneficial for her mental health. However, the evidence does not establish what has been spent in the past on a trainer and accordingly I make no award for the past requirement of a trainer.

Future out of pocket expenses

1. I accept Dr Parsonage's opinion as to the further treatment required. I propose to allow $200 per week for psychological treatment for the next two years. Using the 3% tables the multiplier is 101.3 and gives rise to a figure of $20,260. Thereafter I allow an amount of $50,000 for the balance of the future since I accept Dr Parsonage's opinion that fewer consultations will be required in the future after the initial period of two years of intensive therapy.
2. I allow for two psychiatric consultations per year at a cost of $300 per consultation ($11.50 per week) for the rest of the plaintiff's life. I accept Dr Parsonage's opinion that these consultations are reasonably necessary to review her condition and monitor any medication she might be taking for depression and anxiety. This gives rise to a rounded allowance of $17,000, being $11.50 x 1,474.4 (the 3% multiplier for the plaintiff's life expectancy of 61 years remaining).
3. Although Dr Parsonage does not address the need for consultations with a general practitioner, the plaintiff's evidence is that she sees her general practitioner once a month for prescription medication at a cost of $70 per month. Having regard to the psychiatric review referred to above, I consider it reasonable to allow for four visits annually to the plaintiff's general practitioner at an annual cost of $280, or a weekly cost of $5.30. This gives rise to a rounded allowance of $7,800, being $5.30 x 1,474.4 (the 3% multiplier for the plaintiff's life expectancy of 61 years remaining).
4. The weekly cost of a gym instructor is $85. I propose to allow this cost for the next five years in order to assist the plaintiff for the purpose of developing new habits and to assist in whatever rehabilitation is possible. I do not consider it to be reasonable to allow this amount beyond that period. Accordingly, I allow $20,600, being $85 x 242.6 (the 3% multiplier for five years).
5. The claimed weekly cost of a dog at $200 is not substantiated, except in broad terms in the plaintiff's evidence. I do not accept, without such substantiation, that it is a reasonable cost, although I accept that the provision of a dog is reasonable. I allow $100,000 for the cost of a dog, which equates in broad terms to $100 per week for the rest of the plaintiff's life with a discount to take account of the possibility that the plaintiff would have had a dog anyway or that she will live in accommodation where it is not possible to have a dog.
6. Accordingly, the award for future out-of-pocket expenses is the rounded figure of $215,000, less 15% discount for vicissitudes, resulting in a rounded award of $183,000.

Past loss of earning capacity

1. I accept that the plaintiff's capacity to earn has been affected by the depression and post-traumatic stress disorder that she has suffered as a result of the defendant's trespass. Mr Lakeman submitted that it would be reasonable to calculate her loss for the past and the future by compensating her for the disparity between what she actually earned and average weekly earnings (AWE) for females in New South Wales. Although this is a somewhat crude measure, I accept that it is generally appropriate in the circumstances of this case to assess damages in this way. No greater precision is possible in circumstances where the torts were committed when the plaintiff was relatively young and before her uninjured potential was revealed.
2. However, I do not accept that the plaintiff would, but for the defendant's wrongdoing, have worked full-time from the age of 17. I consider that her damages for loss of earning capacity ought be assessed on the footing that she would have begun working from the beginning of 2006, being the commencement of the first calendar year following her 18th birthday.
3. For the period when the plaintiff was aged 18 to 25 (350 weeks, rounded) I have used an average of the Total Earnings for All Females in New South Wales, being $690 net per week. I consider it to be reasonable to allow a lower figure for the period from the age of 18 to 25, to make allowance for the probability of her undertaking further education during this period. For the remaining 150 weeks (from age 25 to the present) I have used the Ordinary Time Earnings for Full-Time Adults (Female Employees) in New South Wales ($880 net per week).
4. Her total net earnings for the period but for the defendant's tort would, accordingly, have been in the order of $375,000 (rounded).
5. The plaintiff has tendered evidence as to her income since the 2006/2007 financial year. The income she has received includes Australian Government allowances. The evidence does not establish the precise nature of these allowances or whether the plaintiff will be required to repay them from any damages she receives as a result of the judgment in her favour.
6. The plaintiff's actual earnings (excluding government allowances) during this period have been in the order of $50,000, giving rise to a net figure for loss of earning capacity in the order of $325,000.
7. The plaintiff is entitled to interest on past economic loss. I accept Mr Lakeman's submission that an appropriate average rate is 7.625% and that it would be reasonable to apply half that rate (3.81%) to the whole past figure to take account of the interest requirement. For a period of nine and half years, I make an award for interest on damages for past economic loss of $117,000.

Future loss of earning capacity

1. There are substantial difficulties in the present case in assessing damages for future loss of earning capacity. On the one hand, the plaintiff has shown herself, since she obtained employment as a nurses' aide, to be a capable worker who is able to perform a relatively demanding job notwithstanding her considerable psychological difficulties. Her husband attested to her capacity to put on a professional front in such circumstances. Moreover, the expert medical evidence is that she is likely to improve with a sustained period of psychological treatment and that such improvement will be assisted by the conclusion of these proceedings. However, the psychological difficulties caused by the defendant's wrongdoing are likely to be intractable. For this reason it cannot be inferred that the plaintiff will ever fully regain her lost potential.
2. Mr Lakeman proposed that damages for future loss of earning capacity ought be assessed on the basis that the plaintiff will be able to work in a job such as the one in which she is presently employed into the future. I accept that this is a reasonable measure. Accordingly the award for future economic loss is the difference between $880 net per week (being the "Ordinary Time" AWE for females in NSW) and $687 net per week (being the plaintiff's earnings in her present employment) until the plaintiff is 65 (using the 3% multiplier of 1191.2). I have allowed a greater discount for vicissitudes, 30%, to take account of other factors, including that she would have had time off for children (and may well still do if she has them) since I consider that it would be unlikely that she will, or would have, worked continuously to the age of 65. The discount for vicissitudes also takes account of the possibility that the treatment will enable her to obtain a position in which her income is higher. The award for future economic loss is the rounded figure of $160,000.

Summary of damages

1. In summary I assess the plaintiff's damages as $1,228,000, as set out in the following table: General damages $350,000 Interest on past general damages ($200,000 x 14 years x 4% x ½) $60,000 Past out of pocket expenses $33,000 Future out of pocket expenses $183,000 Past loss of earning capacity $325,000 Interest on past loss of earning capacity ($325,000 x 9 ½ years x 3.81%) $117,000 Future loss of earning capacity $160,000 TOTAL $1,228,000

Orders

1. I make the following orders: 1. Judgment for the plaintiff against the first defendant in the sum of $1,228,000. 2. Order the first defendant to pay the plaintiff's costs of the proceedings.

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. Decision last updated: 20 July 2015