201 Deducting these from each party's entitlements referred to above gives the plaintiff $71,617 ($342,313 less $270,696) and the defendant $444,469 ($542,469 less $163,000) of the remaining assets of the parties.
202 The balance of the assets of the parties should be sold, debts paid and the resulting sum distributed to the parties in the proportions set out in the preceding paragraph.
203 The defendant made a submission that due to her difficult financial situation she should be paid in cash with the defendant to retain the assets. Given that she will be entitled to her award of damages, which is substantial, this will relieve her financial situation. It is preferable that both parties have an incentive to attend properly to the realisation of their assets." (RAB 200 E-201E)
56The primary judge then considered the respondent's cross-claim for assault and in particular, the application of the Limitation Act 1969 (LTA). His Honour concluded that the May 1993 assault was statute barred and that the 2007 assault was not barred by the Act. Although the assaults of 1995, 1996 and December 2000 were prima facie statute barred, the respondent relied upon s52 LTA to argue that she was suffering a disability at the time that those events took place and accordingly the running of the limitation period should be suspended for the duration of her disability, i.e. the three year limitation period would not start to run until 9 June 2010.
57After having regard to a series of cases which considered this issue, and having had regard to the medical evidence, his Honour found:
"271 In my view the disability would have commenced after the events in 1993 and continued until a time shortly after the commencement of the proceedings in the Statement of Claim, August 2008, when she started to respond to the claim. The limitation period is therefore suspended, by reason of her disability, until this time. Applying the three-year limitation period, she brought the proceedings within time." (RAB 228I-M)
58The primary judge then proceeded to assess the damages to which the respondent was entitled in her cross-claim. In relation to the assaults and batteries, the primary judge said:
"164 The apprehension, contact and the injuries arising from the assault and battery is another matter. These are serious matters and are no less reprehensible because they occurred within a domestic arrangement. They should be separately treated to show the Court's disapproval of such matters. ..." (RAB 188P-R)
"275 The defendant has satisfied me that five incidents of assault and/or battery occurred and that she has brought her action in relation to these within time. I am also satisfied that by reason of the assaults and batteries the defendant has suffered anxiety and depression." (RAB 229J-L)
59By reference to an earlier decision of his (Jackson v Jackson (NSWSC, 26 March 1999, unreported) which involved assault and battery in a domestic context, the primary judge said:
"282 ... The physical circumstances of that battery were far worse than anything in the present case. However that case did not include threats to kill. Such threats had a real effect on the defendant and put her in fear of her life.
283 I have found that the defendant did not suffer from PTSD and that the disability was one in which there is a prognosis that will see the disability resolved. ...
284 Looking at the individual events, here I would fix general damages as follows:
The threat to kill and battery in 1995 (assault and battery); $50,000
One occasion of ordering the defendant out of the house in 1996 (assault); $2,000
The beer incident and threat to shoot in December 2000 (assault and battery); $50,000
Threat to shoot in 2007 (assault). $40,000
This is a total of $142,000." (RAB 230R - 231H)
60The primary judge declined to award exemplary damages but did award aggravated damages.
"293 There are in my view reasons why there should be aggravated damages in this case. This is because, although there has been an award in respect of the individual assaults it can be seen from the medical evidence that the combined effect of the assaults extended over the whole of the relationship with a pervasive affect on the defendant. I fix aggravated damages at $100,000." (RAB 233I-L)
61In relation to the other heads of damage claimed in the cross-claim, his Honour found:
"273 So far as the future is concerned Dr Fischer has opined that her present incapacity will not continue in the future if she has appropriate treatment. Dr Kraushaar who will no doubt be treating her puts the time for recovery at 12 to 24 months to recover from the trauma. I accept that its reasonable to expect her inability to work to cease within 2 years from judgment.
274 As to past economic loss Dr Fischer gives evidence, which I accept, that she was incapacitated from working as a shop assistant from the time of separation." (RAB 229B-G)
62His Honour then awarded damages as follows:
"285 The defendant is entitled to past out of pocket expenses of $19,218.35.
286 Past economic loss suggested in the defendant's submissions, namely, as a real estate property manager plus interest on half thereof with a 15% allowance for vicissitudes, namely, $112,011.03.
287 Future economic loss is for only 2 years with 15% for vicissitudes, a sum of $46,859.
288 Future out of pocket expenses were predicated on psychological treatment for 4 years, psychiatric treatment, specialist therapy and GP follow up for 10 years. Given the prognosis I have adopted, the psychological and specialist therapy figures need reducing but I would not reduce the others. I fix the amount of future out of pockets at $60,320." (RAB 231J-R)
Submissions and consideration
Ground of Appeal 1: The primary judge erred in finding that the sum of $250,000 and the sum of $50,000 referred to in paragraph [26] of the judgment delivered on 23 April 2012 reflect in the appellant's present assets and thus should be added back to ascertain the properties of the parties at the date of hearings.
Ground of Appeal 2: The primary judge ought to have found that the "asset pool" of the parties was $1,305,782 not $1,605,782.
63The appellant submitted that the finding by the primary judge at RAB 132X - 133J, was based on a misunderstanding of the evidence. It was also inconsistent with his Honour's finding at (RAB 135U-X). He submitted that although the primary judge had realised his error when handing down his judgment as to costs on 29 May 2012, it was not sufficient for the addback figure of $300,000 to be reduced by $90,396 (see [25] hereof) but that no part of the $300,000 should have been added back.
64The appellant submitted that the $300,000 had not been removed from the joint asset pool in circumstances where it should be "added back". On the contrary, his unchallenged evidence (affidavit of 2 September 2011) was that the funds had been used for either his own living expenses, had been returned to the respondent or had been used for their joint benefit.
65The appellant submitted that the rationale behind the concept of "add backs" was to ensure that one party did not obtain some kind of advantage by realising the assets of the parties for that party's personal benefit before a determination by the court as to how the property should in fact be apportioned. The appellant submitted that in this case it was clear that both parties were making use of joint funds before the trial to the knowledge of each other. This was not a case of one party obtaining an advantage, but of a tacit if not express arrangement between them that this would occur insofar as the payment of living expenses was concerned.
66The appellant explained how the $300,000 which had been transferred from joint accounts had been spent. He did so in his written submissions, but most particularly in documents tendered during the course of the appeal which were entitled "Addback Chronology" and "Supplementary Note Re Addback". These documents were in the nature of submissions which explained the appellant's affidavits of 22 September 2009 and 2 September 2011. The documents were predicated upon the evidence of the appellant in the affidavit of 2 September 2011 being accepted. This was because no challenge had been made to that evidence as to how the $300,000 had been spent.
67The effect of the appellant's submissions was as follows: On 5 October 2007 $250,000 had been transferred from a joint account into an account in the appellant's sole name. On 9 October 2007 an amount of $50,000 was transferred from another joint account into an account in his sole name. By reference to a bank statement (Blue AB 202 - 206), the $50,000 was accounted for by a withdrawal of $31,140 for the purchase of a car (which was part of the assets at trial), $17,360 was repaid to joint funds and $1,000 was paid to the respondent.
68No challenge was made to the proposition that $17,360 was repaid to joint funds and that $1,000 was paid to the respondent. The respondent disputed the $31,140 paid for the car on the basis that the payment occurred after the separation and that it was solely for the benefit of the appellant in that the respondent could not drive. Those submissions ignore that the residual value of the car was taken into account at trial and that the use of the car appears to be related to the telephone business and would otherwise be regarded as a reasonable living expense of the appellant. Moreover, as the respondent conceded, she did not object to the purchase of the car (respondent's affidavit, 29 June 2011, pars 551 - 553). I am satisfied that the $50,000 should not have been added back to the asset pool.
69The appellant sought to explain the expenditure of the $250,000. On 8 May 2008, $10,000 was transferred to a joint operating account. On 17 June 2008 $20,000 was paid to the respondent. On 27 June 2008 $5,000 was paid to a joint account. On 4 August 2008 $8,384 was taken by the appellant, by way of reimbursement for the payment by him of a joint tax bill. None of those amounts were disputed by the respondent. Accordingly, that $43,384 should not have been added back to the asset pool.
70The appellant explained the expenditure of the balance of $250,000 as follows. On 4 August 2008 he withdrew $81,869 to reimburse himself for similar expenditure by the respondent. On 22 January 2009 he withdrew a further $26,567 for the same purpose, i.e. a total of $108,436. The respondent disputed the reasonableness of that reimbursement. She submitted that there was no basis for the appellant reimbursing himself for monies which she was said to have spent in circumstances where he was able to work and was receiving money from the business, but she was not. The respondent did not accept that the evidence at Black AB 229 constituted an admission that she had spent that much for personal living expenses. She did not, however, proffer an alternative figure. She submitted that in the appellant's calculations of expenditure, he had claimed the joint tax liability of $8,384.95 twice.
71The evidence of the appellant in relation to the balance of the $250,000 is sparse. He submitted that allowing for payments of interest, there was an amount of $127,000 remaining from the $250,000 as of March 2010. On 6 September 2011 he transferred $52,712.65 to reimburse himself for making payments to meet joint expenses (affidavit, 2 September 2011, Blue AB 168G). This left approximately $78,000 as at the date of trial, which was reduced to $10,000 as at the date of judgment. In oral submissions on the appeal, senior counsel for the appellant explained that expenditure as follows:
"The difference between $78,000 and $10,000, there is no evidence as to how that was spent but in the history as set out above we say the only inference that's available would be that the money was used for joint expenses, not some unparticularised, unevidenced misuse of funds by the appellant. There is no allegation against us that it was spent in some improper way. That's the accounting." (AT 4.12.12 - 17.23 - .28)
72While that evidence was not challenged at trial, on the appeal the respondent submitted:
"The appellant says in his affidavit dated 2nd September 2011 that he transferred another $52,712.65 to reimburse himself for joint expenses (Blue 168H). There was no accounting for this amount. He paid some other amounts, totalling about $7,000 and said that he had made no other transactions. The balance at the date of judgment should therefore have been about $60,000 but it was only about $10,000.
On the basis of these examples and the rough and ready accounting of the amounts allegedly spent by the respondent, the Court cannot be persuaded that the roughly $90,000 claimed should be credited to the appellant as being used for joint purposes."
73The difficulty for this Court is that these issues were not explored at trial and his Honour did not deal with them. That having been said, there is some force in the respondent's submissions that in respect to the reduction of $127,000 to $10,000 between September 2011 and the date of judgment, no detail has been provided by the appellant of either the $52,000 or the reduction from $78,000 to $10,000.
74In relation to the $108,000 with which the appellant reimbursed himself in August of 2008 and January of 2009, there is also some force in the respondent's submission that because he was in receipt of regular earnings from the telephone business, his need for personal expenditure from joint funds was not as great as that of the respondent. Accordingly, while I would allow a reimbursement in favour of the appellant for his living expenses, that reimbursement should not necessarily be the same as the amount spent by the respondent for that purpose.
75On the state of the evidence, no precise calculations can be made. The Court, of necessity, has to apply a broad brush approach.
76I have concluded, as the primary judge himself appreciated, that he was in error in adding back $300,000 to the asset pool. In my opinion, justice would be done between the parties if $100,000 were to be added back to the asset pool.
Ground of Appeal 3: The primary judge erred in finding that the respondent was under a disability within the meaning of s 52 of the Limitation Act 1969.
Ground of Appeal 4: The primary judge ought to have found that the respondent's claim in respect of each of the alleged assaults that were held to be established (except for the found assault in 2007) were statute barred.
77The relevant sections of the LTA are:
"11(3) For the purposes of this Act a person is under a disability:
...
(b) while the person is, for a continuous period of twenty-eight days or upwards, incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of:
(i) any disease or any impairment of his or her physical or mental condition,
..."
"52 Disability
(1) Subject to subsections (2) and (3) and subject to section 53, where:
(a) a person has a cause of action,
(b) the limitation period fixed by this Act for the cause of action has commenced to run, and
(c) the person is under a disability,
in that case:
(d) the running of the limitation period is suspended for the duration of the disability, and
(e) if, but for this paragraph, the limitation period would expire before the lapse of three years after:
(i) the date on which the person last (before the expiration of the limitation period) ceases to be under a disability, or
(ii) the date of the person's death,
(whichever date is the earlier), the limitation period is extended so as to expire three years after the earlier of those dates.
(2) This section applies whenever a person is under a disability, whether or not the person is under the same or another disability at any time during the limitation period.
..."
78Those sections were analysed in Guthrie v Spence [2009] NSWCA 369 by Campbell JA (with whom Basten JA and Handley AJA agreed). There, his Honour said:
"Cause of Action
132 Section 11(3)(b) depends on a person being incapable of or substantially impeded in the management of his or her affairs "in relation to the cause of action". But what is "the cause of action"?
...
134 Notwithstanding that the expression "cause of action" has a central role to play in the Limitation Act, the Act does not define it. ...
138 The only places in the entire Act where the definition of "disability" in section 11(3)(b) has work to do is in section 52, and in related procedural provisions in section 53. The usual way in which a definition operates in a statute is by providing a set of words in the definiens that can be used to replace the definiendum in an operative provision of the statute, to articulate more fully the meaning of that operative provision ... If the defined meaning of "disability" is notionally read into section 52, the first place it applies is in section 52(1)(c). When it is read into section 52(1)(c), "the cause of action" in section 11(3)(b) then refers back to section 52(1)(a) and (b). In other words, it is a particular right to sue that a particular person has, and concerning which the limitation period fixed by the Act has commenced to run.
"Management of His or Her Affairs"
139 The word "affairs" is one which is capable of a variety of meanings and can be quite broad. ... Without trying to be exhaustive, the management of a person's affairs can include the management of the whole range of practical matters of a business nature that that person is involved in.
140 In the context in which it occurs in section 11(3)(b), the relevant "affairs" are ones in relation to a particular cause of action. In a general sense, managing one's affairs in relation to a particular cause of action includes doing the various things that would need to be done if that cause of action were to be dealt with. Thus, it includes seeking advice about whether a civil remedy exists for some perceived wrong, seeking advice about the difficulties, risks, cost and effort involved in pursuing any such remedy and the likely returns, comprehending and evaluating that advice, and, if the decision to commence proceedings is taken, thereafter engaging in the continuing process of co-operation, interaction and decision-making that exists between lawyer and client in running any civil action.
141 In deciding the meaning of "affairs" in section 11(3)(b), one must bear in mind that the context in which it occurs is that of the Limitation Act. The sole concern of the Limitation Act is with the time within which an action must be commenced - anything that happens after an action has been commenced is irrelevant to it. The Act prescribes various limitation periods for different types of causes of action. The purpose of section 11(3) and section 52 is to identify circumstances in which it would always be just to allow the plaintiff a longer time within which to commence an action. ...
...
143 Both these aspects of the context assist in concluding that the shade of meaning of "affairs" in section 11(3)(b) is one that places particular weight on the activities in relation to a cause of action leading up to and ending with the institution of proceedings.
"Substantially"
144 While I would not disagree with Slattery J's view in Kotulski at 117 that in section 11(3)(b) "substantially" "does not mean trivial or minimal, neither does it mean total", that still leaves open a wide range within which "substantially impeded" might fall. I do not read Slattery J as saying that falling anywhere within that range would suffice.
...
152 In the present context, whether the plaintiff has been "substantially" impeded is decided bearing in mind the context and purpose for which the court is called on to make the decision. It is for the purpose of deciding whether an as-of-right suspension of a limitation period will arise. It needs to be an impediment that has interfered with the ability of the plaintiff to commence the action within time to an extent sufficient to warrant the suspension of the limitation period.
...
156 The wording of section 11(3)(b) is awkward when it uses the words "management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises". It is not immediately clear how the phrases "in relation to the cause of action" and "in respect of the limitation period for which the question arises" fit into the syntactical structure of the chapeau of section 11(3)(b).
158 The words "in respect of the limitation period for which the question arises" are fairly clearly an adjectival phrase, but what is the noun or noun phrase that they describe? It could not be "cause of action" - one has a limitation period in respect of a cause of action, but not a cause of action in respect of a limitation period. It would make sense of the syntax if "in respect of the limitation period for which the cause of action arises" described "affairs" - one's affairs in respect of a limitation period would be those practical matters that needed to be attended to concerning the limitation period. They would involve doing those things one needed to do to be able to bring an action within the limitation period. However, reading the section that way would require the insertion of an "and", so that the section read "management of his or her affairs in relation to the cause of action and in respect of the limitation period for which the question arises". While the process of construction can proceed by reading a word into a statutory provision, it is preferable to avoid doing so if possible.
159 A meaning that is the same as I have just been considering will arise if the syntax is analysed so that "in respect of the limitation period for which the question arises" is an adjectival phrase that describes the noun phrase "affairs in relation to the cause of action". So regarded, "in respect of the limitation period for which the question arises" serves to divide off, from the whole ambit of a person's affairs in relation to a cause of action, those affairs that are in respect of the limitation period for which the question arises. Reading section 11(3)(b) as having that syntax would advance the purpose for which section 11(3)(b) exists. It is readily understandable policy that a limitation period should continue to be suspended while a plaintiff is substantially impeded in dealing with those practical matters that need to be attended to for the action to be brought in time.
160 In my view, that is the correct syntactical structure of section 11(3)(b). Its having that syntax enables one to advance from the conclusion reached by analysis of the meaning of "affairs", namely that the shade of the meaning of "affairs" in section 11(3)(b) is one that places particular weight on the activities in relation to the cause of action leading up to and ending with the institution of proceedings, and to conclude that the only "affairs" that are referred to by section 11(3)(b) are those practical matters that lead up to and end with the institution of proceedings for the particular cause of action in question.
161 It is also readily understandable policy that not every matter that substantially impeded the plaintiff in dealing with the practical matters that needed to be attended to enable the action to be brought in time should justify an extension of time. Bad legal advice, an inattentive lawyer, or having other pressing family or business commitments could each provide a reason why the plaintiff was substantially impeded in bringing an action in time, but it would be understandable legislative policy not to allow those to provide a reason for automatic suspension of a limitation period. The same might also be the case for significant poverty. There may be a measure of arbitrariness in the circumstances listed in subparas (i)-(iv) as adequate ones to provide the reason why a substantial impediment in management of the relevant affairs is treated as suspending a limitation period, but that is the choice that the legislature has made."
79With that as background, it is necessary to examine more closely the basis on which his Honour concluded that the respondent should have the benefit of s52 LTA.
80His Honour noted that when considering whether the respondent suffered from a disability of the necessary kind, he had to consider not only the assaults and batteries which he found to have occurred, but the whole of the relationship as it existed between the parties between 1993 and 2007. Matters which did not constitute an assault might still be relevant to medical opinion relating to the respondent's disability. His Honour rejected a diagnosis of Post Traumatic Stress Disorder (PTSD). That finding has not been challenged by either party. His Honour rejected the evidence of Dr Kraushaar, the psychologist, as to diagnosis on the basis that this was beyond his speciality. That finding has also not been challenged.
81The competing opinions which his Honour had to consider were those of Dr Robert Fisher, a consultant psychiatrist, who was retained on behalf of the respondent, and Dr Peter Klug, a forensic psychiatrist, retained by the appellant. The respondent had first consulted Dr Fisher on 5 January 2010 for treatment purposes. He provided a report, dated 11 January 2010, in relation to that consultation. Thereafter, he saw her for medico legal purposes on 15 June 2011 at the request of her solicitors. He prepared a report dated 30 June 2011 and gave evidence in the proceedings. Dr Klug saw the respondent on 5 April and 12 May 2011 and prepared reports dated 2 June, 30 June, 8 August and 16 August 2011. He also gave evidence in the proceedings. It should be noted that Dr Kraushaar accompanied the respondent when she was seen by Dr Klug and was present throughout the consultations. Both Dr Fisher and Dr Klug were referred to the provisions of the LTA when preparing their reports.
82Having been posed a question in terms of s52 LTA, Dr Fisher expressed his conclusion as follows (RAB 220G, Blue AB 765K):
"1. It is my view, that, to a significant extent, Mrs Mulcahy was in "thrall" to Mr Cooper, whom she had found charming and good company and pleasant initially to her children and initially a good sexual partner, but who, over a passage of months, from the beginning of their relationship, demonstrated himself to be jealous of her relationship with her two sons, extremely needy of attention, irracible and then increasingly, with the passage of time, was allegedly verbally abusive in the extreme, prone to using the worst expletives in the English lexicon and threatening her with physical violence and, again, allegedly, as pointed out in her affidavit, subjecting her to physical violence at times and, in the context of owning two rifles, engendering in her a realistically based fear of a potential threat to her life."
83In that report, Dr Fisher likened the condition of the respondent to that of the "battered woman" where the abuser is sorry after the event and the abused person stays in the relationship in order to keep the family together. Dr Fisher concluded (RAB 220T, Blue AB 765T):
"I believe there is clear evidence that most of these elements have had their part to play in Mrs Mulcahy's decision to stay on in the relationship, made worse by her decreasing sense of self-confidence, attractiveness and capacity to live a life alone.
So, I do believe that Mrs Mulcahy was suffering from a disability according to the definition of "disability" provided by section 52.
2. I believe that her primary condition was a mixed anxiety depressive syndrome induced by Mr Cooper's stress-producing verbal and physical abuse, which manifested insidiously initially and then became more profound with the passage of time.
I believe that, in this state, Mrs Mulcahy's confidence and her ability to assert herself was so significantly impaired, and she had become so pathologically dependent on Mr Cooper, that she was not capable, on the balance of probabilities, of making rationial decisions about whether or not to stay with him, whether or not to report his abusive behaviour to police.
3. I believe, on the balance of probabilities, that from the earliest time in the relationship, she was substantially impeded in her ability to manage her affairs ..."
At RAB 221P, Blue AB 766P:
"It is my view that Mrs Mulcahy experienced an insidious deterioration in her capacity to assert herself in this very unequal relationship with Mr Cooper and, in her increasingly anxious and depressed and unconfident state, was not able to take a stand against what was extreme and unreasonable behaviour. I believe that it is only since she separated from Mr Cooper that she was able to fully appreciate the extent and severity of his abusive behaviour, but I do believe that this persisted down to the time that Mrs Mulcahy was in fact able to obtain legal advice and an understanding of, and ability to pursue, her rights, in respect of the assaults and battery."
At RAB 22F, Blue AB 767H:
"I have already indicated that I believe that Mrs Mulcahy became so anxious and depressed and lacking in self-confidence, remaining "in thrall" of Mr Cooper, that she was not able to think rationally about the situation she found herself in, or to assert herself appropriately by either leaving Mr Cooper, seeking an AVO, or reporting him to the police and having him charged with assault and battery.
...
I believe, on the balance of probabilities, that she was caught up in a particular frame of mind, desperately hoping that the relationaship would be salvagable and that the once charming and considerate de facto husband would once again display such apparent loving and considerate behaviour. The fact that, during her time with him, she experienced a degree of intermittent reinforcement of the idea that he was a suitable companion, by demonstrating care and expressing a wish to re-engage with her, even after the various periods of separation, that she was caught up emotionally in the hope that such a meaningful resumption of the original style of relationship would occur."
84Dr Klug reached a different conclusion (RAB 223M, Blue AB 697L):
"My opinion is that Ms Mulcahy is not suffering from any severe psychiatric condition. She certainly has not been suffering from a chronic post traumatic stress disorder or a major depressive disorder. She has probably suffered at times from an adjustment disorder. An adjustment disorder is not a major mood disturbance but is nevertheless a significant psychiatric entity characterised by excessive distress and/or dysfunction in response to a specific stressor or stressors. If Ms Mulcahy has suffered from an adjustment disorder (chronic or intermittent) it would need to be specified what the stressors were that induced this condition. To my knowledge, and from the history Ms Mulcahy provided at interview, there has been no exposure to traumatic stressors. I note she is being medicated with an anti depressant and a minor tranquilisor and this is compatible with the diagnosis of an adjustment disorder."
Blue AB 707E:
"I do not believe the condition of a recurrent adjustment disorder has had any effect on Ms Mulcahy's ability to manage her affairs in relation to the cause of action of assault and battery.
Her condition of a recurrent adjustment disorder, in my view, did not render her incapable of, or being substantially impeded in, the management of her affairs in relation to the alleged assaults or batteries inflicted upon her."
85In response to Dr Fisher's report, Dr Klug said (Blue AB 721V):
"It should be stated at the outset, that there are inherent difficulties in being a treating psychiatrist who then provides an independent forensic assessment.
It is of considerable interest that in Dr Fisher's first report of 11 January 2010, when he assessed her as a treating psychiatrist, that he did not diagnose any major psychiatric illness. To the contrary, he described her as "quite stressed" but "not depressed". He notes that there were no features of severe depression. He however describes features of anxiety. He notes that Ms Mulcahy felt stressed by the legal action. He also notes that she is a worrier by nature. He notes that she was upset about Bob Cooper never really liking her sons and she said the marriage started to break down in late 2006. His opinion that her psychiatric symptomology is mild is one with which I concur in my previous report.
In his report of 30 June 2011, when he carried out a forensic psychiatric assessment, Dr Fisher's opinion is very different. He notes she suffers from a possible chronic post traumatic stress disorder, which is partially ameliorated and a major depressive disorder in remission. He also notes that she has some obsessional personality traits and some features of passive dependent personality functioning. ..."
(Blue AB 722N):
"Dr Fisher states, in other parts of this report, that Ms Mulcahy is suffering from "a mixed anxiety depressive syndrome". This, however, is not reflected in his multi-axial diagnostic formulation. A mixed anxiety depressive syndrome is not a diagnostic category in the DSM-IV-TR ..."
(Blue AB 723JH):
"He also refers to Ms Mulcahy's inability to assert herself and her becoming "so pathalogically dependent on Mr Cooper, that she was not capable, on the bounds of probability, of making rational decisions ..." On Axis 2 of his multi-axial diagnostic formulation Dr Fisher notes that Ms Mulcahy has "some features of passive dependent personality functioning". Axis 2 is reserved for the diagnosis of personality dysfunction or disorder. His reference to her being pathalogically dependent on Mr Cooper is, therefore, likely to be a long standing trait, which predated her forming a relationship with Mr Cooper. Personality characteristics, by definition, are formed at the completion of adolescence.
In conclusion, the following points should be noted:
1. There are inherent difficulties in being a treating psychiatrist who then declares himself as an independent forensic assessing psychiatrist.
2. Dr Fisher diagnoses Ms Mulcahy as having a possible post traumatic stress disorder in partial remission and a major depressive disorder in remission but then also diagnoses her as suffering from a mixed anxiety depressive syndrome, which is not a diagnostic category in the DMS-IV-TR. This is a confusing use of terminology.
3. Despite regarding her psychiatric conditions as being in partial or full remission, Dr Fisher, nevertheless, regards her as suffering from a disability according to section 52 and being substantially impeded in her ability to manage her affairs. This seems to be incompatible with his diagnoses, which he states are in partial or full remission.
4. The symptoms he describes as a treating psychiatrist are mild and would barely qualify for the diagnosis of any psychiatric disorder but in this further report, as a forensic psychiatrist, he diagnoses her with two possibly three major psychiatric disorders. The discrepancy between these two assessments is substantial and is difficult to fathom.
5. It is also of note that Dr Fisher comments on her intermittent, long term, low quantity marijuana use and experimentation with cocaine and magic mushrooms. Dr Fisher does not consider that poly drug abuse might play a role in her presentation and he does not interestingly, include it as a primary psychiatric diagnosis on Axis 1.
In summary, there is nothing in the further documentation by Dr Fisher to justify any change in my opinion. I do not believe Ms Mulcahy is suffering from a disability under the relevant section. I do not believe she is, or has been, suffering from a major psychiatric disorder but may have suffered from a recurrent adjustment disorder. The terms "battered woman" and "battered wife syndrome" are in my view, not appropriately applied to Ms Mulcahy given that there is no connotation of severe psychiatric illness."
86In relation to the criticism by Dr Klug of Dr Fisher's diagnosis of "mixed anxiety depressive syndrome", the following question and answer was given when Dr Fisher was giving evidence in chief at Black AB 455F (also at RAB 224G):
"Q. In that report Dr Klug seeks to criticise your diagnosis by stating that mixed anxiety depressive syndrome is not to be found in DSM-IV. What is your comment on that statement?
A. Strictly speaking, he is correct, it isn't found in the diagnostic entity in DSM-IV. It is found in the preliminary drafts of DSM-V which is the successor of DSM-IV. In reality people have argued very strongly that this is a useful way of charactering the sort of disorder I believe Ms Mulcahy suffered from because there is such a mixture of anxiety and depression which describes what the patient is experiencing. Furthermore, it may have idealogical implications. In other words, often enough severe depression is preceded by being very stressed and anxious. One of the aims of the DSM system is to try and put things into categories that can be tested and can end up understanding causes by virtue of that classification or we find out what we classify as separate entities are the same entities. There is some scientific and logical basis to this approach. So in summary the term "mixed anxiety depression" is something many people working in psychiatry would use as a diagnosis and is about to become an official diagnosis in DSM-V and Dr Klug is correct it is not in the current literature. He is correct in that. I think the point I am making qualifies why I am putting it in."
87His Honour regarded that explanation as acceptable. While minds might differ as to whether that response is an acceptable explanation of the diagnosis, it is the only comment which the primary judge made in relation to the serious criticisms which Dr Klug made of Dr Fisher's diagnosis.
88At RAB 224Q, the primary judge said:
"264 Some things about the parties' relationship raise doubts about whether Dr Fischer's conclusions may be correct. Obvious ones are the fact that the defendant was a relatively high functioning individual throughout the relationship and another is the long periods of time between the assaults. In the plaintiff's submissions in reply he makes the following points:
"7.6 The point made at paragraph 154 of the earlier submissions which goes totally unremarked upon in the Defendant's submissions that a period of more than six years passes between the allegation at item 9 of the schedule of alleged assaults occurring in the Christmas/New Year period of 2000/2001 and the next chronological allegation which is item 3 occurring in March/April 2007. This fact comprehensively debunks the repeated suggestions of the Defendant's submissions that there is some "continuum" of abuse.
7.7 The impressive list of examples of conduct of the Defendant which demonstrate a lack of fear or intimidation including (in addition to the matters mentioned above):
7.7.1 Camping in seemingly remote places; T354.28
7.7.2 Choosing to live in the isolated location at South Bank Road. It is instructive to consider just some of the evidence on this aspect. The evidence of the Defendant herself starting at T215.04 that, at least at the time of the purchase of South Bank Road in late 1999 and the farm in late 2003:
(a) she had no concerns about living there with the Plaintiff;
(b) this in circumstances where she was dependent on him to drive her anywhere away from the property; and
(c) at T217.11, at the time the parties were looking to purchase the South Bank property (in late 1999), she had no concerns about her personal safety or physical situation;
7.7.3 Pressing the Plaintiff to live at South Bank Road despite his initial lack of interest in purchasing that property;
7.7.4 The fact that she went shooting with the Plaintiff with a spotlight; T341.19
7.7.5 The dealings with Gaythorne and the purchase by the MFT of the Mitchelton property to assist David's wife buy a different house;
7.7.6 The pay out of the River Road loan after the Plaintiff had expressly declined to sign the documents required to be signed in this regard (see par 50.9 of the earlier submissions, par 502 of the Defendant's Affidavit of 29 June 2011 and T183.4);
7.7.7 The secret rental receipts from River Road and related CBA accounts;
7.7.8 The trip to Vanuatu in late 2007 post the date the Defendant alleges for separation;
7.7.9. The trip to Bribie Island;
7.7.10. Her control of the $55,000 loan to Wade (David Mulcahy's evidence was that he was not involved with this loan (T437.17 to 21) nor knew the details of the rent receipts of River Road (T417.47 to 418.09 and 427.18 to 36) and Wade Mulcahy's evidence was also that he did not know the details of the rent receipts of River Road (T113.22 to 31), which evidences the degree of involvement in these matters of the Defendant;
7.7.11 Her control and separateness in keeping the inheritance account. It should be noted that the inheritance was a modest amount of some $16,000, so that there is no credence in the suggestion by the Defendant that there is a basis for the separateness of these monies."
89His Honour considered that those submissions by the appellant had been adequately answered by the responses of Dr Fisher under cross-examination (Red 225V - G). In order to understand the responses, and his Honour's assessment of them, it is necessary to set out the whole of the exchange which is at Black AB 472P-474D:
"Q. In terms of post traumatic stress disorder, the diagnosis that we get from the manual would indicate that it relates to death, horrific type injuries that someone either experiences or sees and sees in respect of someone who is a good friend or member of family, or I take it a third category, which is someone who is constantly threatened and in fear of life during that period of time, is that right?
A. Yes, it is.
Q. Is that -
A. I think that's a very fair account for a non-psychiatrist.
Q. In respect of an incident where someone is taken by an arm down a flight of stairs at the rear of a house, where they are not taken off their feet, that is not knocked off their feet, they are not injured, ordinarily that incident would not fall within the type of incident in the first and second categories, would it?
A. No, not in the first or second.
Q. It could be part of -
A. The third.
Q. - the third, I take it?
A. Yes.
Q. And in respect of an incident that involved alcohol being poured over someone's head, on one occasion that of itself wouldn't be said to fall within categories 1 or 2, would it?
A. I wouldn't think so.
Q. It may be only considered as part of the category 3 of ongoing threats. Is that right?
A. Latent threat.
Q. Latent threat. And the threat is of the person being killed or seriously injured?
A. It is.
Q. Were you given a number of the number of assaults that you were asked to assume? Or the threats of assault, I should say.
A. I don't recollect being given a number.
Q. But I take it that you assumed that it was in the hundreds?
A. Not of physical threats, not of "I'm going to punch you now".
Q. Not of threats -
A. But words were of a threatening nature, like, "I know people in Sydney who could take care of you."
Q. With the recipient thinking that they might be killed or seriously injured?
A. Yes, plus the context of the husband - de facto husband possessing two rifles, which raises the stakes in terms of potential dangerousness.
Q. Now, if I can attempt to use my words, but if you could express it better; that is, the conversation from a person posing the threat has to be such as to put the person in fear when received by the recipient?
A. Yes, it would need to be of that order.
Q. And in terms of the third category, those incidents would need to be constant, I think, is the word you used in the report. That is, there's this constant apprehension of being killed, maimed, or persons close to them being killed or maimed. Is that so?
A. Yes, it is.
Q. And if there were periods of many years without these incidents, that would be relevant to your assessment of the illness if there were periods of time where there were normal behaviour?
A. Well, interestingly, it actually generally works in the obverse way to that because what we know is that intermittent reinforcement in behaviour therapy is the most powerful way of reinforcing an idea or a feeling. So if indeed the acts - the actual acts of violence are unpredictable but do occur intermittently, then that is more likely to engender fear and a sense of impotence in the face of the ongoing situation than where there are mild degrees of assault happening very regularly and predictably."
90In relation to that part of the appellant's submissions at trial, which related to the high functionality of the respondent, his Honour referred to other oral evidence of Dr Fisher (Red 226H - 227D) (Black AB 482K - W):
"Q. Sorry, doctor, there is a matter Mr Priestley has reminded me. In respect of managing her affiars, that is Mrs Mulcahy's affairs, in terms of the history where she was involved with real estate and with various businesses of the parties during the relationship, and continued to do so up until separation; that is able to deal with banks on her own behalf or whatever. She, in those circumstances, can I suggest to you, appear to have any disability in reporting matters or making complaint in respect of what she now complains of in affidavits as to how she was abused. What I am suggesting to you is, she, throughout the time of the relationship, was able to hold her own and appear to operate as a normal person would in a relationship with its normal ups and downs. That's not your understanding?
A. Well, I think clearly to make it simplistic or we can try and tease out the various factors that have contributed to this complex situation. I guess the most important thing in my mind is, where it came to doing things that involved strongly asserting herself against a man whom she felt ambivalent about did she make a sensible decision, such as taking out an AVO; no, she didn't as far as I know. Did not make that sensible decision, despite being advised to do so. So, the concept of being in thrall to someone implies that when it comes to matters that have to do with either saying things or doing things that could harm the other, which logically she should have done on the basis of what she is telling us she didn't do it. Why not? To try and understand why not is part of the psychology of the whole situation. Why did she not do the sensible thing?
Q. And there is an answer to this. That is she has exaggerated or taken out of context matters that have happened in her relationship for financial gain?
A. Well, the things she reports to me that were said to her and done strike me as being beyond the normal, beyond the healthy. As I tried to allude to previously, she didn't seem to me to take the opportunity to grossly exaggerate things when she could have."
91The primary judge set out his conclusions on those issues as follows:
"267 These responses seem to me to [be] quite reasonable. It should not be forgotten that a lot of the abuse is said to be continuous, see the evidence in respect of the abusive language in 1993. Exhibit P in the proceedings is a collection of emails between the parties after separation. They contain many emails from the defendant using expletives and direct sexual references which made Dr Fischer blush. This is put forward to play down the effect of the language used by the plaintiff. However it seems to me that they are in a limited time frame and probably said in the protective environment of emails and distance between the parties." (RAB 227D - J)
92The emails which comprised Exhibit P were voluminous. They are at Blue AB 438 - 678. They cover the period November 2007 to October 2008. A reading of the emails makes clear why they were tendered. As the primary judge pointed out, the expletives used by the respondent in these emails match, if not exceed, anything found to have been said by the appellant. Not only does the respondent consistently use those expletives throughout the exchange of emails, but they are used in a way and context which strongly suggests that this was the way in which the respondent normally communicated with the appellant. They are frequently mixed with terms of endearment. I should also observe that there is no basis in the evidence for his Honour's observation "However, it seems to me that they are in a limited timeframe and probably said in the protective environment of emails and distance between the parties". This was an entirely speculative conclusion.
93His Honour preferred the opinion of Dr Fisher and rejected that of Dr Klug for the following reasons:
"268 But what of the contrary opinion of Dr Klug? His interview with the defendant was made difficult in that she continually referred him to her affidavit instead of answering his enquiries about any assaults. He described the results in these terms:
"On specific and persistent enquiry about the history of assaults in the relationship, despite describing difficulties in the relationship and verbal abuse from Mr. Cooper, she said he had never physically assaulted her. There is one episode when she said she was "dragged" when he grabbed her by the arm and marched her down a set of stairs. Specifically however, there were no other incidents of physical aggression, according to Ms. Mulcahy's history at interview. There is also no history of sexual violence. When I persisted further along this line of enquiry she simply stated that she found it very difficult to talk about the situation and could not give me an answer. She referred me to her affidavit."
269 It seems that Dr Klug has proceeded on the basis that although he has read the affidavit he places no great reliance on it in contrast to what little he elicited in the interview. For example there is no reference in his report to the threats to shoot or maim. There could be several reasons for her attitude. She may have wished to be non-cooperative or she may have had a real difficulty in reliving the events again in the telling process. I think the latter is more likely.
270 Having regard to these matters and the other matters appearing in the cross examination I prefer the evidence of Dr Fischer to that of Dr Klug on this aspect." (RAB 227K - 228C)
94The basis for the primary judge's conclusion in favour of Dr Fisher is not further explained. This is despite the considerable detail provided by Dr Klug in his report as to the difficulties he had in eliciting information from the respondent (Blue AB 687P - 689F). These were the same difficulties identified by his Honour when assessing the credibility of the respondent ([29] - [30] hereof) Importantly, his Honour did not set out the balance of the quotation from Dr Klug, which is to be found in his report of 2 June 2011 at Blue AB 696B-J. Following the quotation set out above, Dr Klug said:
"There does not appear to be a firm history of what might be described as psychological abuse in the long term de facto marriage with Robert Cooper. Certainly, there appears to have been marital friction and it is possible that Ms Mulcahy adopted a passive stance in the relationship. I am aware that psychological abuse might be regarded as the genesis of what has been termed the "battered person syndrome". This is a term that has been used in the ICD (International Classification of Diseases) system of diagnosis. This condition is essentially compatible with that of a post traumatic stress disorder, but is also associated with repeated cycles of violence and reconciliation, which is associated with false and self-recriminatory beliefs on the part of the victim. It is also regarded as being associated with the victim fearing for her life or the lives of her children. This does not appear to be compatible with the history that Ms Mulcahy provided."
95His Honour's conclusion in favour of the application of s52 to the respondent's claims for assault and battery was as follows:
"271 In my view the disability would have commenced after the events in 1993 and continued until a time shortly after the commencement of the proceedings in the Statement of Claim, August 2008, when she started to respond to the claim. The limitation period is therefore suspended, by reason of her disability, until this time. ..." (RAB 228J - L)
96The appellant submitted that the findings by the primary judge based on the opinion of Dr Fisher, were not open. He relied on what was said in Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844. There the Court (Mason ACJ, Wilson, Brennan, Deane and Dawson JJ) confirmed the principle that it was an error to rely upon the opinions of an expert medical witness if those opinions were not based on assumptions and hypotheses established by the evidence.
97The appellant submitted that whereas the primary judge had extensively quoted the opinions of Dr Fisher, he had not sought to relate those conclusions to the evidence on which they were said to be based. This was despite the appellant's submissions at trial to the effect that there was a substantial disconnect between what the respondent said about the relationship and her actions while the relationship was on foot and the inferences which could be properly drawn from those actions. The appellant relied on the summary of evidence at RAB 224-225 (see [88] - [89] hereof).
98The appellant submitted that neither his Honour nor Dr Fisher had properly taken into account that the respondent had chosen to live in an isolated location at Southbank Road in 1999, that she did so in circumstances where he was not particularly enthusiastic and that she had no concerns about living there with him, even though she was dependent upon him to drive if she wished to leave the property. The appellant submitted that the respondent's asserted fear apparently brought about by his reference to his rifles, sat uneasily with her willingness to go spotlight shooting with him. The appellant submitted that nowhere did either Dr Fisher nor the primary judge deal with the respondent's control of her own financial affairs. The appellant referred in particular to the sophisticated financial scheme with her son David while the relationship was still on foot, which was designed to transfer the proceeds of sale of the Gaythorne and Mitchelton properties to David and his wife. As a result of this scheme, the Mulcahy Family Trust borrowed $500,000 which was used by David to buy a $1 million property in the name of his wife without the appellant's knowledge. The scheme is summarised at Red 132D-W.
99There is considerable force in this submission.
100There was no basis in fact for Dr Fisher's conclusion that "the physical violence started" in 1993 and continued throughout the relationship. As the respondent confirmed, there were only two instances of physical violence over 14 years and these were of a very low level. They consisted of grabbing by the arm and pulling down a stairway and pouring beer over the respondent's head. Dr Fisher's conclusions as to the commencement of the respondent's disability and its amelioration after the relationship ceased are arbitrary and contradictory.
101The only other violence relied upon was that which was described by Dr Fisher as "constant" and "extreme" verbal abuse. One could envisage a situation where constant verbal abuse, involving the use of expletives, could amount to violence but that was not the situation here. The only reasonable inference to be drawn from the emails in Exhibit P was that the respondent was an habitual user of expletives and sexually direct language. Without further evidence, it was not open to conclude that such a person would be offended when that kind of language was used by someone else in her presence, whether or not it was specifically directed to her. The treatment of this evidence by the primary judge (at RAB 227H-J) was not only superficial but involved speculation on his part which was not open on the evidence.
102The assumption by Dr Fisher that the "verbal abuse" was "constant", cannot be reconciled with the evidence. While it is not necessary in a case covering a 14 year relationship that every incident be described, rolled up expressions such as "constant" without specific illustrations and some supporting evidence are unhelpful. Eleven instances of abuse over a 14 year period were relied upon. None of them involved a direct threat of violence. At most, some involved a conditional threat, e.g. "don't be here when I get back". If one discounts the use of expletives by the appellant, on the basis that this was unlikely to have shocked or upset the respondent, the eleven instances relied upon by the respondent, and described by the primary judge, do not amount to "constant threats of physically assaulting her and her children".
103In particular, the six year period between Christmas 2000 and the assault in mid 2007, was not explained by Dr Fisher and was not properly taken into account by the primary judge. The explanation by Dr Fisher which his Honour took as a complete answer to that evidence (at RAB 225U-G) is not only surprising but verges on the absurd. The proposition which was put was that if acts of violence are unpredictable but do occur intermittently, that is more likely to engender fear than if there were assaults happening regularly and predictably. While as a general proposition that might be supportable, it has no relationship to the facts of this case. It cannot apply where there were only ever two low-level acts of physical violence and no identified physical violence or verbal assaults between those occasions for a period in excess of six years.
104A conclusion drawn by Dr Fisher, which is not borne out by the facts, is that the respondent was living in constant fear of physical violence and the threat that the appellant might use his rifles against her, or her sons. Such a conclusion is inconsistent with two low level episodes of violence occurring over 14 years. It is inconsistent with the content of the threats found by his Honour to have occurred on two occasions concerning the rifles. No mention was made of the sons. Taking the threats at their highest, they were not direct but were conditional and qualified. The last of the threats was found to have occurred in mid 2007 towards the end of the relationship. Over a 14 year period, that is an insufficient factual basis for such a broad conclusion.
105An important part of Dr Fisher's conclusions was that the respondent was "in thrall" of the appellant. He did not define what he meant by that term. In his oral evidence, he did provide some partial explanation. At Black AB 480S in the context of trying to explain how his theory could stand with the fact that the respondent went on holidays with the appellant after the final separation, Dr Fisher said:
"A. That's why I used the word "in thrall" because I think that it does encompass the very things that you're describing: despite the danger, keeps going back for more. I wouldn't call it healthy."
106Later, when asked to set out the facts upon which he based his opinion, Dr Fisher said:
"So I took into account the history provided of this regular and continuous and drawn out unpleasantness that existed between the two of them; the report by Mrs Mulcahy that she felt that she was suffering abuse and her subjective experience of it; and despite that, she continued in the relationship; she re-engaged in attempts at reconciliation and she did not take out an AVO when other people did advise her to do so and I think that the unifying explanation for that is that she was in thrall of Mr Cooper. She held ambivalent feelings, she was strongly attracted to him on the one hand and not happy with his treatment of her on the other hand, and the events unfolded in that context. I don't see it as being a normal reasonable piece of behaviour and I don't think that DSM is going to help us to understand that. But the understanding of human psychological dynamics will." (Black AB 486E)
107The fundamental premise of the opinion that she remained in the relationship "despite the danger" is not made out on the evidence. Over 14 years there had been two examples of low level violence and some intermittent threats, none of which had been implemented. What the factual background supports and Dr Klug found, was a volatile relationship which the respondent wished to maintain and did so over 14 years, despite its ups and downs. A matter which Dr Fisher ignores but is significant in the relationship, is that it was the appellant who was threatening to leave and did in fact leave the relationship on a number of occasions. It was he who brought the relationship to an end by leaving. At no time in the evidence is there a threat made by the respondent to the appellant to leave the relationship. The clear inference is that the respondent wanted the relationship to continue despite its volatile nature.
108That is not, as Dr Fisher asserted, indicative of an unhealthy relationship. The use of terms by Dr Fisher, such as "the Stockholm Syndrome" and the "Battered Wife Syndrome" are needlessly emotive and inaccurate descriptors of this relationship. The inappropriateness of such terms was made clear by Dr Klug (see [94] hereof). When Dr Fisher identified as a sign of an unhealthy relationship the unwillingness of the respondent to go to the police or seek an AVO, one has to ask what would be the basis of such an application? There is nothing in the evidence which would justify police intervention, nor is there anything which would justify an AVO.
109A matter relied upon by the appellant in submissions at trial and on appeal, and which was raised by Dr Klug, was the discrepancy between the history taken by Dr Fisher and his diagnosis when he first saw the respondent as a treating psychiatrist, and the history and diagnosis which he recorded after seeing her for medico-legal purposes. As Dr Klug noted (see [85] hereof), when Dr Fisher first saw the respondent he did not diagnose any major psychiatric illness. When he saw her for medico-legal purposes, one might think that he was describing a different person. There is, accordingly, considerable force in the appellant's submission that in these proceedings, Dr Fisher was acting more as an advocate than as an expert witness seeking to assist the Court. The primary judge did not address that issue.
110The basis upon which his Honour preferred the evidence of Dr Fisher to that of Dr Klug was flawed. The considerations relevant to the assessment of expert evidence were set out in Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; 60 NSWLR 127 where Ipp JA (with whom Bryson JA and Stein AJA agreed) said:
"61 But, where the issue in dispute involves differences between expert witnesses that are capable of being resolved rationally by examination and analysis, and where the experts are properly qualified and none has been found to be dishonest, or misleading, or unduly partisan, or otherwise unreliable, a decision based solely on demeanour will not provide the losing party with a satisfactory explanation for his or her lack of success. A justifiable grievance as to the way in which justice was administered will then arise.
62 In Moylan, Sheller JA (with whom Beazley JA and Giles JA agreed) referred to and adopted much of the reasoning of Henry LJ in Flannery. His Honour quoted the following remarks of Henry LJ (reported in Flannery at 381-382) with approval:
"It is not a useful task to attempt to make absolute rules as to the requirement for the judge to give reasons. This is because issues are so infinitely various. For instance, when the court, in a case without documents depending on eye witness accounts is faced with two irreconcilable accounts, there may be little to say other than that the witnesses for one side were more credible ... But with expert evidence, it should usually be possible to be more explicit in giving reasons: See Bingham LJ in Eckersley v Binnie (1988) 18 Con LR 1, 77-78:
"In resolving conflicts of expert evidence, the judge remains the judge; he is not obliged to accept evidence simply because it comes from an illustrious source; he can take account of demonstrated partisanship and lack of objectivity. But, save where an expert is guilty of a deliberate attempt to mislead (as happens only very rarely), a coherent reasoned opinion expressed by a suitably qualified expert should be the subject of a coherent reasoned rebuttal, unless it can be discounted for other good reasons ...""
And:
"[w]here the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other."
63 Sheller JA (at [64]) criticised the trial judge in Moylan for deciding the case virtually solely on the strength of the following remarks:
"I have had the advantage not only of hearing the various witnesses give evidence but also of seeing the way in which they have reacted to the questions that they were asked. Having done so, I prefer the expert evidence that was given for the defendants to that which was given for the plaintiffs.""
(The reference to Moylan is a reference to Moylan v Nutrasweet Co [2000] NSWCA 337.)
111That engagement with the competing opinions of the psychiatrists did not take place. Had the primary judge properly analysed the expert evidence of Dr Klug and Dr Fisher, it would have been apparent that the conclusions of Dr Klug were based on the facts as disclosed by the evidence, whereas those of Dr fisher were not. Since his Honour did not reject the evidence of Dr Klug on demeanour grounds, there is nothing to stop this Court taking his opinion into account.
112The respondent submitted that his Honour was entitled to substantially disregard the evidence that the respondent was a "high functioning" person in respect of many aspects of her life when considering the application of s52 LTA. She submitted that a person might be competent in many aspects of their life, but still be substantially impeded in their capacity to commence a particular sort of litigation. The respondent relied upon Saunders and Anor v Jackson [2009] NSWCA 192 to support that submission.
113In that case, with the concurrence of Ipp and Macfarlan JJA, I said:
"48 The fact that the opponent's mental condition fluctuated between a "major depressive illness" and a "low grade level of depression with little interest in enjoyment of life" over the years is not decisive. The fact that she was able to maintain employment and raise two children (although it is clear that she received considerable help from her mother in that regard) is also not decisive. From the psychiatric evidence it was well open to her Honour to find, as she did, that the opponent was substantially impeded by her mental condition in the management of her affairs in relation to the cause of action. Such a conclusion was not only open to her Honour but was clearly correct. This is particularly so when to commence and maintain the cause of action required in the circumstances of this case, such a difficult and emotional decision by the opponent with potentially devastating repercussions for her family."
114The facts in Saunders were, as the respondent conceded, quite different to those in this case. The cause of action arose from sexual and physical assaults which took place over nine years when the plaintiff was aged between six and fifteen. The assaults were committed by the plaintiff's eldest sister and her boyfriend. There was unanimous psychiatric evidence that the plaintiff was suffering from severe depression, requiring admissions to hospital. There was independent evidence as to her parlous emotional state over the years.
115The consequences of bringing proceedings were also significantly more serious in Saunders:
"44 A consideration of this question must have regard to the nature of the particular cause of action. This was not an industrial accident or a motor vehicle accident where a decision whether or not to commence and continue with an action is relatively straightforward. The cause of action alleged sexual assault by a family member over many years in the context of a family with considerable prestige in the community and with a distinguished association with the police force.
45 It would take a person of exceptional robustness and strength of character to pursue such a claim in the civil courts even if that person were not suffering from an impairment of her mental condition."
116It is true, as the respondent undoubtedly appreciated, that the commencement of proceedings against the appellant would have brought their relationship to an end. That is quite a different circumstance to that which confronted the plaintiff in Saunders. In this case, the respondent had to decide whether or not to maintain the relationship. This may have involved a difficult emotional decision on her part, with potentially serious consequences for the relationship. The difficulty in making a decision because of "human psychological dynamics" is not the same as being substantially impeded in her ability to commence the cause of action by reason of an impaired mental condition.
117A decision as to whether or not to end a relationship or to take a step which will have the effect of ending a relationship, can be very difficult particularly when emotions are heavily involved. An unwillingness to make such a decision, however, is not indicative of mental impairment as used in s11(3)(b) LTA. People do remain in relationships despite volatility because of mutual attraction.
118In this case the respondent appears to have made a considered decision to continue with the relationship and not take any action which would bring it to an end. This is consistent with her evidence at trial:
"Q. But going back in time in 2007, you were aware of various meetings with the solicitor who was going to act and who was acting in respect of the conveyancing transactions between the trust and David and yourself and Gaythorne, I think?
A. Yes. That had already been organised.
Q. And did you meet the solicitor?
A. Actually the solicitor was Bob's and my solicitor at that particular time.
Q. As well?
A. Yes.
Q. You never spoke to that solicitor to get any advice regarding any of the matters that you complain of in your affidavit regarding the alleged assaults by Mr Cooper upon you did you?
A. I never complained about anything in particular. I didn't speak to - I didn't speak freely to people about these things.
Q. When you were taken to Brisbane Hospital in 2007, there were a number of those occasions where Mr Cooper would leave you in the St Helens Road property, wouldn't he?
A. Yes.
Q. Or he would leave you with your son David is that right?
A. Yes.
Q. And you were able to go to speak to a solicitor if you chose to do so weren't you?
A. Yes.
Q. And you were able to speak to the solicitor about the matters that concerned you about my client's behaviour?
A. I would never discuss those things with anyone.
Q. I didn't ask you that. You were able to discuss those matters?
A. No, I was not able because I'm not like that. I don't do that. I'm not like that. I don't complain to people about my problems.
Q. I'm not asking whether you do or you don't complain. You were able to see a solicitor if you chose to do so regarding the matter you complain of about these alleged assaults.
A. Goodness me. I have answered the question as best I can." (Black AB 267X-268T)
"Q. When you were staying at Mitchelton, Mr Cooper would often leave you at that property and drive back to Harwood or somewhere else in New South Wales or Queensland in respect of the businesses that he was involved with?
A. On a few occasions, yes.
Q. And on those few occasions you could have gone to a solicitor to discuss the actions or the alleged assaults that you now complain of couldn't you?
A. But I am, I wouldn't and don't and you know.
Q. What I am suggesting to you - I'm sorry I interrupted. You "wouldn't and I don't" - that is, you say, you tell his Honour, that you chose not to, is that so?
A. I didn't even consider it.
Q. Didn't consider it?
A. No.
Q. You could have gone and got advice if you had wished to?
A. Oh goodness me." (Black AB271T-272E)
"Q. If I take you back towards the beginning of 2006, late 2005, Janice Young has been engaged to do bookkeeping; is that right?
A. Yes, that's right.
Q. And at that time you were able if you chose to go to a solicitor in respect of the assaults that you have complained about in this proceeding, weren't you?
A. See, I find that question very difficult to answer because I am not given to going to people and telling them about my problems or issues or whatever.
Q. The proposition I put to you then is that you chose not to go to anybody to tell of your complaints against you, is that right?
A. I don't consider it as a choice. I didn't -
HIS HONOUR: Q: You just didn't do it?
A. No.
COUNSEL: Q. The position was you chose not to do it, wasn't it?
A. I'm really sorry, I just don't know how to answer that question because I never considered it as a choice or ..." (Black 289Q-290E)
119It follows from the above that the primary judge was in error in relying upon the conclusions of Dr Fisher when those conclusions were not based on the evidence. His Honour erred in rejecting the evidence of Dr Klug without properly evaluating it and assessing its probative value against that of Dr Fisher. As a result, his Honour erred in finding that the respondent was under a disability within the meaning of s52 LTA. Grounds of Appeal 3 and 4 have been made out.
120The consequences for the respondent are that the assaults and batteries found to have occurred in 1995, 1996 and December 2000 are statute barred and the respondent is not entitled to damages in relation to them. The respondent is entitled to damages in respect of the assault which occurred in 2007.
Ground of Appeal 5: The primary judge erred in awarding general damages of $50,000 in respect of the assault and battery in 1995.
Ground of Appeal 6: The primary judge erred in awarding general damages of $50,000 in respect of the assault and battery in December 2000.
Ground of Appeal 7: The primary judge erred in awarding general damages of $40,000 in respect of the assault in 2007.
Ground of Appeal 8: The primary judge's assessment of general damages was beyond the range of damages, having regard to the circumstances of each claim.
Ground of Appeal 14: The primary judge erred in awarding aggravated damages.
Ground of Appeal 15: The primary judge erred in awarding aggravated damages on a basis other than to compensate the respondent for injury resulting from the manner and circumstances of the appellant's wrongdoing.
Ground of Appeal 16: Alternatively, the primary judge erred in awarding aggravated damages of $100,000.
Ground of Appeal 17: In awarding aggravated damages, the primary judge failed to distinguish between the consequences of the assaults, in respect of which he awarded damages and the consequence of the conduct of the appellant generally, which did not constitute an assault or battery.
121As a result of the appellant's success in relation to Grounds of Appeal 3 and 4, the only relevant ground of appeal in relation to the assaults and batteries is Ground 7. In case I am found to have been in error in my assessment of Grounds of Appeal 3 and 4, I propose to address all of the above Grounds of Appeal.
122Although the primary judge purported to award damages for the specific effect of each assault and battery, the size of the damages are such that they could only be justified if their combined effect produced the conditions found to exist by Dr Fisher, i.e., a mixed anxiety depressive syndrome, which had reduced the respondent to a state of thralldom to the appellant. That the primary judge had this in mind is clear from the way in which he expressed himself in relation to damages.
"275 ... I am also satisfied that by reason of the assaults and batteries the defendant has suffered anxiety and depression." (RAB 229L)
"293 ... This is because, although there has been an award in respect of the individual assaults it can be seen from the medical evidence that the combined effect of the assaults extended over the whole of the relationship with a pervasive affect on the defendant." (RAB 233 K-L)
That is how the respondent sought to justify the amount of the damages awards in submissions in the appeal (11.4.2013 - T.18.22 - 19.42).
123The difficulty with that approach is that it is not supported by the evidence. Dr Fisher neither in terms, nor implicitly, asserted that the particular assaults and batteries relied upon as having occurred in 1993, 1995, 1996, December 2000 and 2007 produced the anxiety and depression which he diagnosed in the respondent. On the contrary, he expressly found that it was the effect of the whole of the relationship with its "constant" abuse and "threats of violence" which produced the condition. At no time did Dr Fisher analyse the effect of the particular assaults and batteries, either collectively or individually in any detail. That was part of the problem with his opinion which led to the success of Grounds of Appeal 3 and 4. Accordingly, there is no medical support for the awarding of damages at such a high level.
124Moreover, the primary judge when analysing the individual assaults and batteries indicated that their effects would have lasted for a matter of weeks only. Although his Honour expressed this opinion in the context of considering whether the assaults had affected the respondent's homemaker contributions, it remains his only finding on the subject. At RAB 188I - J, his Honour said:
"Assuming that the fear generated by the incidents had some immediate affect on contributions at the time of affectation, a period of some weeks is of minor significance in the overall timeframe of this 15 year relationship. This is particularly so given that there was a substantial break for many years between the incidents."
His Honour appears to have forgotten that finding when he set out his conclusion at RAB 229L and 233K-L above.
125It is significant that when the primary judge came to assess damages (at RAB 229 and folowing), he did not refer to any evidence except in general terms. By not doing so his Honour effectively misdirected himself in his reliance upon Varmedja v Varmedja [2007] NSWDC 385 at [111] where Walmsley DCJ said:
"A particular difficulty is the fact that there is a large number of separate torts alleged which collectively, on the psychiatric evidence, have caused the psychiatric injury ..."
In this case, the psychiatric evidence was not to that effect. There was no evidence to that effect.
126His Honour was not able to identify any cases involving the same or similar facts as those before him. He said:
"One can look at another case; say for example Jackson v Jackson (NSWSC, 26 March 1999, unreported) where I gave an award of $10,000 for an assault and battery in a domestic context. The physical circumstances of that battery were far worse than anything in the present case. However, that case did not include threats to kill. Such threats had a real effect on the defendant and put her in fear of her life." (RAB 230Q - T)
127The facts of Jackson, as his Honour acknowledged, involved a much more serious physical assault than anything in this case. The victim in that case was severely bashed in public and suffered long term physical injury.
128It is difficult to see how a conditional threat in terms of "I really should get rid of the rifles. I'm either going to shoot you or shoot myself or both of us" said in the course of a argument in 2000 would have put the respondent in fear of her life when the threat was never implemented, nor repeated for the next six years. This is particularly so when the evidence from the respondent was equivocal. I use the term 'equivocal' because of the "disconnect" identified by the appellant in submissions between what the respondent said in her affidavit about being in fear and her actions in going spotlight shooting and willingly living in an isolated location with him.
129Of some assistance when considering damages is the decision of the Court of Appeal in Victoria in Giller v Procopets [2008] VSCA 236. The Court was there required to assess damages for assault and battery in a domestic context.
130The Victorian Court of Appeal approved the proposition that the victim of a domestic assault was entitled to compensation "for any injury suffered, pain and suffering and loss of enjoyment of life together with any distress, indignity and humiliation" (Neave JA at [480]). I agree with that statement of principle.
131Keeping in mind that each case depends on its own facts and that one should not look at damages findings in one case as fixing some kind of tariff for another case, it is helpful to set out the facts of one of the assaults in Procopets and the damages which were awarded.
"The defendant struck the plaintiff with a metal framed kitchen chair on the right arm and her right shoulder. Police were called. ... The injuries were bruising and lacerations to the lower right arm and some restricted painful movement of right shoulder. The plaintiff said that she suffered the effects for about a month. ... No medical treatment was sought. ... While the injuries were not serious, I am satisfied that they were not minor." (Procopets [481])
132Neave JA considered that $1000 as damages for that assault was inadequate. Her Honour found that it "was a serious assault which affected Ms Giller for a month. Mr Giller was in her home, a place where she was entitled to feel safe, when she was assaulted. ..." Damages were assessed at $5000.
133It is useful to keep those principles and their application in Procopets in mind when considering the assaults and batteries found to have occurred by the primary judge. The first was an assault and battery in 1995. His Honour dealt with that at RAB 173J - 174Q. This was the incident where the appellant grabbed the arm of the respondent and dragged her down the back stairs from the kitchen to the backyard. At the end of that incident, the appellant said "Get out of my fuckin' sight. Disappear. If you don't I'll fuckin' kill you. I'm fuckin' out of here. I'm going to pack my stuff and find somewhere else to live. Don't come back 'til I'm gone. I promise you I'll fuckin' kill you" (See [38] hereof). The respondent left the house for a couple of hours and then returned but kept out of the way of the appellant until he departed the premises. She said that she was afraid of him.
134The physical element of the battery was minimal. There was no physical injury or pain and suffering. Threats were made but they were conditional and nothing was done to implement them. The respondent was afraid but this state of fear appears to have lasted for only a few days. In those circumstances, an award of damages of $50,000 was excessive. Were it necessary to assess damages for that assault and battery, my assessment would be $5,000 based primarily upon the fear engendered in the respondent by the incident.
135The appellant made no challenge to the $2,000 in damages awarded for the assault in 1996. Its only relevance is to the award of aggravated damages.
136The next incident challenged by the appellant is that of December 2000, involving the pouring of beer and threats made to the appellant. This was dealt with by the primary judge at RAB 176D-181U. There was no physical injury. There was, however, implicit in the actions of the appellant an intention to humiliate the respondent. The appellant's conduct is consistent with an intention to demonstrate to the respondent in what low esteem he held her. The conduct, however, did occur in private. I can well understand why such deliberate and contemptuous conduct would have a serious and deleterious effect on the respondent's emotional health.
137The threat was in the following terms:
"This is driving me fuckin' nuts, I really should get rid of the rifles. I'm either going to shoot you or shoot myself or both of us."
The respondent said that the communication of this threat made her "terrified". Apart from the fact that the appellant owned two rifles (only one of which was capable of being fired), he never did anything to implement the threat. There is no suggestion that he picked up a rifle, or pointed a rifle towards the respondent. Although she says she was "terrified", the respondent did not relate this incident to any doctor, except Dr Kraushaar in 2009, nor did she include it in her affidavit. The evidence emerged for the first time at trial. I infer that the respondent's failure to mention the threat before trial indicates that she did not regard it as particularly significant.
138When assessing damages for this incident, I regard the pouring of the beer as much more important. The demeaning element in that conduct is such as would attract aggravated damages. For the reasons which I will indicate in due course, this is the only incident which would attract aggravated damages. Nevertheless, the amount awarded for compensatory damages of $50,000 in respect of this incident is excessive, even if aggravated damages were taken into account. Should it be necessary to assess damages in respect of this incident, I would assess them at $20,000, such amount to include aggravated damages.
139The final incident is that of 2007 which the primary judge held to be an assault. He dealt with this incident at RAB 182S - 183R. The circumstances in which the threat was made were almost identical to those described as having occurred at Christmas 2000. In the course of an argument, the appellant said:
"This is frustrating the shit out of me. I really should get rid of the rifles. I will either shoot myself because I'm going nuts or shoot you."
The respondent said that this was a "terrifying thing to hear". The respondent made no mention of such an incident until trial. She did not refer to it when giving histories to any of the doctors, nor did she refer to it in her affidavit. I infer that its effect upon her was transient at most. I am confirmed in that assessment because the relationship ended approximately three months later in September 2007.
140The assault involved a threat which was indirect. The effect of the threat was not such as to remain in the forefront of the respondent's mind in that she failed to mention it to anyone when preparing for the trial. Its effect on her was not long lasting. Nothing was done to implement the threat or reinforce it after it had been made. Neither the threat itself nor the circumstances in which it was made are such as to give rise to agravated damages. In those circumstances, the assessment of $40,000 for compensatory damages by his Honour was excessive. I assess damages at $4,000.
141It follows from the above that Grounds of Appeal 5, 6, 7 and 8 have been made out.
142His Honour set out the basis for his award of aggravated damages at RAB 233I - L, (see [60] hereof). Because Grounds of Appeal 3 and 4 have been upheld, the challenge to his Honour's assessment of aggravated damages at $100,000 must succeed and that finding should be set aside. As indicated, in relation to the assault found to have occurred in mid 2007, its circumstances were not such as to attract an award of aggravated damages.
143If I am incorrect in upholding Grounds of Appeal 3 and 4, I would still uphold Grounds of Appeal 14 -17 and set aside the primary judge's award of aggravated damages.
144It is trite law that aggravated damages are compensatory in nature and focus on the damage suffered by the recipient, whereas exemplary damages are punitive in nature and focus on the conduct of the person causing the harm. Aggravated damages are awarded to compensate a plaintiff for increased mental suffering due to the manner in which the defendant has behaved in committing the wrong. "Aggravated damages, it has been said, are intended to compensate the injured plaintiff because the more reprehensible the wrongdoer's conduct, the greater the indignity the plaintiff suffers and the greater the outrage to his or her feelings". (Whitbread and Anor v Rail Corporation NSW and Ors [2011] NSWCA 130 (Whealy JA) at [256].
145For the reasons already given, it was not open to his Honour when considering whether or not to award aggravated damages to examine the whole of the conduct of the appellant within the relationship over 14 years. What his Honour was required to do was to consider the specific assaults and batteries and assess the entitlement to aggravated damages, resulting from those incidents, either individually or collectively. Apart from the incident involving the beer, there was nothing in the other incidents which could possibly give rise to an award of aggravated damages. The global award of $100,000 is not supported by any reasoning or reference to the evidence.
146Grounds of Appeal 14 - 17 should be upheld and the award of $100,000 for aggravated damages should be set aside.
Ground of Appeal 9: The primary judge erred in awarding damages for past and future economic loss.
Ground of Appeal 10: The primary judge failed to give adequate reasons for awarding damages for past and future economic loss.
Ground of Appeal 11: The awards of damages for past and future economic loss were not supported by the evidence.
Ground of Appeal 12: The primary judge erred in awarding damages for past and future out-of-pocket expenses.
Ground of Appeal 13: In awarding general damages for past and future economic loss and damages for past and future out-of-pocket expenses the primary judge failed to distinguish between the consequences of the assaults in respect of which he awarded damages and the consequence of the conduct of the appellant generally which did not constitute an assault or battery.
147His Honour's reasons for awarding economic loss and out-of-pocket expenses are set out at RAB 231J-R (see [62] hereof). His Honour gave no reasons for awarding economic loss, nor did he refer to any evidence.
148The only evidence on the subject is in the report of Dr Fisher of 30 June 2011 at Blue AB 767P - 768M. That evidence was:
"8) You ask -
Is it reasonable, having regard to her then condition, that Mrs Mulcahy was incapacitated as set forth under Paragraph 6(a)(1) of the Amended Statement of Cross-Claim Past Economic Loss?
I believe that it is reasonable, having regard to her then condition, that Mrs Mulcahy was incapacitated, as set forth.
9) You ask -
Similarly, would Mrs Mulcahy likely have been unable to carry out the work described in paragraph 6(a)(iii) of the Amended Statement of Cross Claim?
I believe that this is, on the balance of probability, likely to be true.
10) You ask -
Would I further provide my opinion, again, on the balance of probabilities only, as to whether it is likely that Mrs Mulcahy's current incapacity for work will continue into the future and, if so, is this probably the case on an indefinite basis?
I do not believe that it is likely that Mrs Mulcahy's current incapacity for work will continue into the future, if she engaged in appropriate psychopharmacological and psychotherapeutic management of her Mixed Anxiety Depressive condition, and particularly if there is a favourable outcome to her Cross Claim.
In the event that she fails to be successful in her Cross Claim, I believe it will be tantamount to driving the final nail into the coffin of her self-confidence and her sense of fairness, in the face of the abuse to which she has allegedly been subjected to by Mr Cooper.
11) You ask -
What are the prospects, if any, of her returning, during the remainder of her prospective working life, to any gainful employment and, if so, in what measure?
As I have indicated above, I believe that with the correct intervention and with what is perceived as a fair outcome of the legal proceedings, she could return to gainful employment, subject to her successful response to treatment. The latter of course is yet to occur and is beyond definite prognostication at this stage."
149The references by Dr Fisher to various paragraphs in the Amended Statement of Cross-Claim are to paragraphs in the "Statement of Particulars Personal Injury Proceedings" at RAB 69P-70N. The relevant paragraphs are:
"6 (a) Past Economic Loss
(i) After separation, the cross claimant was no longer able to participate in the businesses which she formerly operated with the plaintiff and would have sought employment had she not been totally incapacitated for work by reason of her injuries and disabilities. She claims damages for economic loss on the basis of total incapacity as set out below,
(ii) If the cross claimant was not totally incapacitated for work she would have sought full time employment as a shop assistant from the date of separation and earned in the order of $555.30 per week net. She claims $555.30 per week from 1 October 2007 to date and continuing. (Retail Industry Interim Award 2004).
(iii) In the alternative to paragraph 6(a)(ii) the cross claimant would have undertaken study for 7 days, at a cost of $1,040.00, to obtain a real estate agent's licence to work in affordable housing. From the commencement of 2008, the cross claimant would have commenced employment and earned $530.09 per week net. She claims $530.09 per week from 1 February 2008 to date and continuing (Property Management Award Qld 2005)."
150The only other evidence was that of the respondent. She had not worked in any paid employment since 1983 (Black AB 230V-231D). In cross-examination her evidence was:
"Q. You didn't seek to get any work after early 2009 from any source?
A. No.
Q. You didn't seek to get a job as a sales person?
A. No.
Q. You didn't seek - well that was work you could have done in 2009 wasn't it?
A. I think I was up to my ears providing affidavits.
Q. With the litigation were you?
A. And, yes, and all pretty distressing.
Q. If you were not involved with the litigation, you could have worked as a sales assistant of some sort couldn't you?
A. I guess so, but if you say so, yes.
Q. In respect of Grafton, as I understand, you have from time to time worked as in the cleaning operations when tenants vacated those premises?
A. Yes.
Q. It was open to you to run a business which, or a real estate agent which did the cleaning when tenants vacated is that right?
A. It was open to me?
Q. Yes.
A. When was it open to me?
Q. 2009.
A. Oh you are sort of hypothetically? Nobody approached me for it.
Q. You didn't choose to go and work doing that sort of cleaning work which you had previously done?
A. I really was - I really was in - I was - doing my affidavits and up to my ears and I had no idea that it was going to go on - this whole situation was going to go on for such a long time." (Black AB 229M - 230F)
151The principles underlying a claim for economic loss and loss of earning capacity have been stated in a number of cases. Those principles are conveniently set out in Husher v Husher [1999] HCA 47; 197 CLR 138 at [7] (Gleeson CJ, Gummow, Kirby and Hayne JJ):
"7 Since at least Graham v Baker it has been recognised that it is convenient to assess an injured plaintiff's economic loss "by reference to the actual loss of wages which occurs up to the time of trial and which can be more or less precisely ascertained and then, having regard to the plaintiff's proved condition at the time of trial, to attempt some assessment of his future loss". But damages for both past loss and future loss are allowed to an injured plaintiff "because the diminution of his earning capacity is or may be productive of financial loss". Both elements are important. It is necessary to identify both what capacity has been lost and what economic consequences will probably flow from that loss. Only then will it be possible to assess what sum will put the plaintiff in the same position as he or she would have been in if injury had not been sustained."
152I have concluded that the respondent has failed to satisfy both those requirements. The evidence of Dr Fisher set out above is not sufficient to establish incapacity to work on the part of the respondent caused by the assaults and batteries found by the primary judge to have occurred. He has provided no reasons for that assertion. Such reasons are necessary because basal to Dr Fisher's opinion was that the whole relationship had brought about the respondent's incapacity. He did not turn his mind to the specific assaults and batteries. The difficulty is compounded for the respondent because only the assault of mid 2007 can be relied upon.
153Even if incapacity due to the assaults and batteries could be established, there is no evidence that the respondent wished to undertake employment or was seeking to do so but was prevented as a result of the assaults. To the extent that there is any evidence, it is to the contrary. Accordingly, the second limb identified in Husher has not been satisfied.
154Those difficulties exist not only in the claim for past economic loss but also in that for future loss of earning capacity. Accordingly, Grounds 9 - 11 should be upheld and the primary judge's award of damages for past economic loss and future loss of earning capacity should be set aside.
155The same problem arises in relation to the award of damages for past and future out-of-pocket expenses. The past out-of-pocket expenses of $19,218.35 related primarily to treatment provided by Dr Krauschaar. It is common ground that the appellant agreed to the mathematics associated with the claim for past and future out-of-pocket expenses, but did not agree that there was any entitlement to them. The claim for future out-of-pocket expenses also related to treatment to be administered by Dr Krauschaar, or some similarly qualified person.
156As with the economic loss claims, there is no evidence which distinguishes between the effect of the assaults and batteries found to be compensible by the primary judge and the effect of other conduct by the appellant which did not amount to assault and which occurred during the whole of the 14 year relationship. Dr Fisher made no such distinction, nor did the primary judge. Accordingly, there is no evidentiary foundation for the awarding of damages for out-of-pocket expenses by his Honour. The position is even clearer if Grounds of Appeal 3 and 4 are upheld and the only compensible event is the assault of 2007.
157Grounds of Appeal 12 and 13 should be upheld and the award of damages by the primary judge for out-of-pocket expenses should be set aside.
Amended Notice of Cross-Appeal
Cross-Appeal Ground 1: The Cross-Appellant appeals from the decision below in respect of the claim under the Property (Relationships) Act 1984 for the following reasons:
(a) His Honour erred in refusing to make an order that the Cross-Respondent pay to the Cross-Appellant forthwith the value of her share of the property, having regard to:
(i) The fact that the Cross-Appellant was unable to earn income by reason of her medical condition.
(ii) That the Cross-Appellant was living on a disability support pension supplemented only by a small amount of rental income; and
(iii) The Cross-Respondent had liquid assets of $15 million which were available to pay out the Cross-Appellant.
(b) His Honour erred in failing to make proper findings on the basis of the evidence of Dr Fisher (whom he accepted) as to the nature and seriousness of the Cross-Appellant's medical condition and as to their bearing on the question of whether:
(i) The Cross-Respondent should have been ordered to pay the Cross-Appellant forthwith the value of her share of the property awarded.
(ii) The Cross-Appellant should be required to work with the Cross-Respondent in the realisation of their assets.
(c) If necessary the Cross-Appellant will seek leave of the Court to present evidence as to her medical condition between judgment and the hearing of the appeal.
158No evidence was adduced as to the respondent's medical condition between judgment and the hearing of the appeal.
159The order sought in Ground 1 of the Cross-Appeal was rejected by the primary judge at RAB 201B - E (see [55] hereof). Of the two reasons given by the primary judge, the first is no longer applicable as a result of this appeal. The second reason remains valid, i.e., that it was important that "both parties have an incentive to attend properly to the realisation of their assets".
160The effect of the orders sought by the respondent is to require the appellant to "buy out" her interest in the property of the parties, as opposed to ordering a sale of the properties and a division of the proceeds. The grounds supporting this order are the relative financial positions of the parties and the health of the respondent. Given the findings in the appeal as to the conflict of opinion between Dr Fisher and Dr Klug, the argument based on the respondent's health is problematic. The outcome of the appeal, however, will not assist the respondent's financial position.
161In the appeal, the appellant submitted that for most of the 16 days of the trial the respondent's position was that there should be a sale of the real estate and a reckoning carried out thereafter between the parties. He submitted that the first time a "buy out" order was proposed was in the written submissions served in January 2012, after the close of the oral evidence. Before the respondent adopted that position, the parties had agreed on certain values for the real estate to assist the judge in his consideration of the matter (Black AB 843.15). The respondent did not disagree with that submission.
162The appellant submitted that the matter was litigated on the basis of a sale and distribution of the proceeds and that the agreement as to valuations might well not have been given if there was to be a lump sum "buy out". The appellant submitted that if the order were to be made, there would be no incentive for the respondent to co-operate in the sale of the property and that he would carry all of the risk associated with the sale of the property, particularly if the value realised on the sale was less than that agreed to in the proceedings.
163Despite the financial hardship of the respondent, I am not satisfied that his Honour erred in his approach to the order which was sought at trial. The application at trial was made late. Given the state of the relationship between the appellant and the respondent, there is a very real chance of a lack of co-operation in the sale of the properties unless both sides have an incentive to do so. There is also force in the appellant's submission that it would be unfair for him to carry the risk of the price achieved for the properties not matching the valuations agreed at trial. I would dismiss Ground 1 of the Cross-Appeal.
Ground of Cross-Appeal 2: The Cross-Appellant contends that the decision below on the tort claim should be affirmed on grounds other than those relied on by the trial judge namely:
(a) That the order for adjustment of property of 60 percent to the Cross-Appellant was less than should have been awarded having regard to the principle In the Marriage of Kennon (1997) 22 Fam LR 1 and in light of his Honour's finding that "the combined effect of the assaults extended over the whole of the relationship with a pervasive affect on the defendant".
(b) If the amount awarded for damages on the Cross-Claim for assault was too high, which is denied, that the result is in any event correct once account is taken of the matters referred to in paragraph 2(a).
164Having fully reviewed the circumstances surrounding each assault and battery, the primary judge set out his conclusion in relation to the Kennon principle at RAB 108 F-N (see [54] hereof). No error has been identified by the respondent in his Honour's conclusions or approach to this issue. There was an absence of evidence as to the effect of the assaults and batteries found to have occurred on the respondent's homemaker contributions. The result of this appeal, with its further analysis of the effect of the assaults and batteries, has confirmed rather than eroded the conclusion of the primary judge. This ground of the Cross-Appeal should be dismissed.
165The first day of the appeal was 4 December 2012. The matter did not conclude that day and resumed on 11 April 2013. On that second day, the respondent sought leave to rely upon a Further Amended Notice of Cross-Appeal which added the following grounds:
"3 The primary judge erred in failing to award damages for the proved assault in May 1993 on the basis that it was excluded from consideration by operation of s 11 of the Limitation Act 1969, which was inconsistent with his findings in paragraphs 270 and 271 of the judgment (Red 228).
4. In considering the award of aggravated damages, the primary judge failed to take into account the conduct of the proceedings by the Cross-Respondent, such conduct being:
(a) The Cross-Respondent maintained denials of behaviour which the primary judge found to constitute assaults, those denials including:
(i) Maintaining under oath a position which the primary judge found was "plainly wrong";
(ii) Persisting in blanket denials which were "not appropriate"; and
(iii) Thus making it necessary for the Cross-Appellant to give evidence and subject herself to cross-examination on the distressing circumstances of the assaults.
(b) The Cross-Respondent admitted during cross-examination that he included a claim that he was entitled to 100 percent of the property of the relationship with full knowledge that that claim was not justified and must have an emotional effect on the Cross-Appeallant (Black 736.30 - .38).
(c) The Cross-Respondent sought to conceal from the Cross-Appellant the fact of his entitlement to share in a significant lottery win by making deceptive statements during attempts to resolve the case including:
(i) Instructing his solicitors to file a Notice of Ceasing to Act twenty days after the lottery win.
(ii) Representing that he was not able to afford a solicitor and was facing bankruptcy.
(iii) Representing to the Cross-Respondent's solicitors that he had no funds to meet mortgage obligations on the properties owned with the Cross-Appellant within days of his sons entering into contracts to purchase properties with his assistance."
166It was common ground that notice of the proposed amendments to the Notice of Cross-Appeal were communicated to senior counsel for the appellant late on Friday, 5 April 2013, i.e. five days before the resumption of the appeal. The application for leave to rely upon the Further Amended Notice of Appeal was opposed by the appellant. During the course of argument, the respondent withdrew her application to rely upon paragraph 4(b) because it had been the subject of an informal undertaking given at trial.
167The Court refused leave to the respondent to rely upon the Further Amended Notice of Cross-Appeal and ordered her to pay the appellant's costs associated with the application to amend. The Court advised that it would provide reasons for the refusal of leave when judgment in the appeal was handed down. The following are those reasons.
168The application to amend was made very late and no evidence or explanation was provided to explain the delay. As such, the application failed to comply with both the spirit and the effect of s56 of the Civil Procedure Act 2005. The application also was contrary to the statements of principle in Aon Risk Services of Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 at [97] - [98]. Those considerations of themselves were sufficient to dispose of the late application to amend.
169There were, however, other considerations.
170With respect to proposed ground 3, had the amendment been allowed it would have been open to the appellant to contest not only the damages question but the issue of whether the incident was capable of being an assault. This is because the facts involved the appellant leaving a note when he went to Melbourne saying "Don't be here when I get back". Accordingly, a real issue as to whether the respondent was placed "in imminent fear of physical violence" by the note would have been raised. In order to deal with this ground the appeal would have been needlessly lengthened to deal with what at best was a peripheral issue.
171In relation to proposed Grounds 4(a) and (c), it is difficult to argue that the primary judge failed to take a matter into account when he was not asked to do so. These grounds raise a claim based on abuse of process, which was never made at trial. No findings were made by his Honour except inferentially when he was dealing with costs. Accordingly, this Court would have been required to make primary findings itself without having the benefit of an analysis and findings by the trial judge.
172There is another and more fundamental objection to Grounds 4(a) and (b). A claim seeking aggravated damages because of abuse of process would undoubtedly have required additional evidence to be called by the appellant in order to respond to the claim. To allow such an amendment would offend the principle in Coulton v Holcombe [1986] HCA 33; 162 CLR 1.
173The respondent sought leave to appeal against the primary judge's order as to costs. The Ground of Appeal was in the following terms:
"The trial judge:
(a) Erred in the exercise of his discretion in failing to take into account the material considerations that:
(i) Cooper had sought 100 percent of the assets of the parties until shortly before the hearing.
(ii) Cooper denied the tort claim in his defence to the Amended Cross-Claim.
(iii) Shortly before the hearing Cooper's position was that he should receive 40 percent of the assets, plus $176,000 with a verdict in his favour on the tort claim.
(iv) The position taken by Cooper from a time shortly before the hearing until its conclusion required Mulcahy to accept a verdict in his favour on the tort claim if the application for adjustment of property was to be resolved; and
(v) It was important to Mulcahy, both financially and psychologically that she pursue redress for Cooper's assaults on her.
(b) Erred in failing to order that Cooper pay Mulcahy's costs of the application for adjustment of property in circumstances whereby reason of Cooper's refusal to settle the application for adjustment of property unless Mulcahy abandoned her tort claim, she was left no option but to run both claims to judgment."
174In a separate judgment given on 29 May 2012, the primary judge ordered that the respondent pay the appellant's costs of the claim for property adjustment on the ordinary basis and that the appellant pay the respondent's costs of the cross-claim on the ordinary basis. The parties had argued for a different result. The appellant submitted that each party should bear his or her own costs of the whole proceedings, whereas the respondent sought an order that the appellant pay the costs of the proceedings on the ordinary basis until 29 June 2011 and thereafter on an indemnity basis.
175The costs order made by the primary judge will have to be set aside as a result of the outcome of the appeal. It is appropriate that the parties be given the opportunity to make submissions as to the costs of the trial, in the light of the result of the appeal. In view of the substantial costs which have already been incurred, the parties should give consideration to agreeing to an appropriate costs order.
Conclusion
176I propose the following orders and declarations:
(1) Appeal allowed.
(2) A declaration that the pool of assets for distribution between the parties is $1,405,782.
(3) A declaration that each of the respondent's claims for damages for assault and/or battery as found by the primary judge is statute barred, save for the 2007 assault.
(4) Quash the judgment in favour of the respondent on her cross-claim.
(5) Enter judgment for the respondent on her cross-claim against the appellant in the amount of $4,000.
(6) The respondent is to pay the appellant's costs of the appeal and of the cross-appeal and to have a certificate under the Suitors Fund Act 1951 if qualified.
(7) The parties are to advise the Court within seven days of the date of judgment as to whether they have been able to agree as to the costs of the trial.
(8) Direct that if the parties are unable to agree as to the costs of the trial:
(a) Within seven days of the date of this judgment, the appellant lodge with the Court a submission identifying the costs order which he contends should be made, such submissions not to exceed two folios.
(b) Within seven days thereafter the respondent is to lodge a reply, not to exceed two folios.
(c) Within a further seven days, the appellant lodge any submission in reply to that of the respondent, not to exceed one folio.