TORTS – INTERFERENCE WITH THE PERSON – TRESPASS TO THE PERSON
– WHAT CONSTITUTES GENERALLY: ASSAULT AND/OR BATTERY
– where the
plaintiff and defendant were married for approximately 15 years and had two
Source
Original judgment source is linked above.
Catchwords
TORTS – INTERFERENCE WITH THE PERSON – TRESPASS TO THE PERSON– WHAT CONSTITUTES GENERALLY: ASSAULT AND/OR BATTERY– where theplaintiff and defendant were married for approximately 15 years and had twochildren – where the plaintiffand defendant separated and the plaintiffcontinued to live in the matrimonial home after separation – where thedefendanttold the plaintiff that he had hired somebody to rape and sodomise her– where the defendant broke into the plaintiff’shome while she wassleeping and physically assaulted her – where the defendant denies theassault occurred at all or that ifit did occur that he was not the perpetrator– where the defendant was acquitted after a criminal trial – wherethe plaintiffsubsequently brings proceedings for damages for post traumaticstress disorder – whether the defendant is liable for the injurysufferedby the plaintiff
TORTS - INTERFERENCE WITH THE PERSON - TRESPASS TO THE PERSON - WHAT CONSTITUTES GENERALLY: ASSAULT AND/OR BATTERY - where the plaintiff and defendant were married for approximately 15 years and had two children - where the plaintiff and defendant separated and the plaintiff continued to live in the matrimonial home after separation - where the defendant told the plaintiff that he had hired somebody to rape and sodomise her - where the defendant broke into the plaintiff's home while she was sleeping and physically assaulted her - where the defendant denies the assault occurred at all or that if it did occur that he was not the perpetrator - where the defendant was acquitted after a criminal trial - where the plaintiff subsequently brings proceedings for damages for post traumatic stress disorder - whether the defendant is liable for the injury suffered by the plaintiff
B F Charrington KC, with R B Dickson, for the plaintiff
[24]
[1] In this proceeding the plaintiff (Ms Gardiner) seeks damages in respect of an assault upon her by the defendant (Mr Doerr).
[2] At the time of the alleged assault Ms Gardiner and Mr Doerr were married but had recently separated. After their separation, Ms Gardiner continued to live in their matrimonial home.
[3] Ms Gardiner claims that the assault took place early on the morning of 10 December 2013. She says that Mr Doerr broke into her home while she was sleeping and physically attacked her.
[4] Mr Doerr denies that the alleged assault described by Ms Gardiner occurred at all or, if such an incident did occur, that he was not involved in it. Mr Doerr also disputes the quantum of damages claimed under the various heads of loss alleged by Ms Gardiner.
[5] Consequently, the critical issues for determination are:
[25]
(a) whether the home invasion and assault alleged by Ms Gardiner occurred;
(b) if it is found that the assault occurred, whether Mr Doerr was the assailant; and
(c) the quantum of damages to which Ms Gardiner is entitled if Mr Doerr is found liable for the alleged assault.
[26]
[6] In determining the first two of those issues, the credit of each of Ms Gardiner and Mr Doerr is a critical consideration. The credit of Ms Gardiner is also relevant to the assessment of damages. In assessing each party's credit, I have been mindful of limits on the ability of judges to make credibility findings based on demeanour and the desirability of testing credit by reference to objectively established facts.[1]
[27]
[7] Ms Gardiner and Mr Doerr commenced their relationship in about August 1996.
[8] In about 1997 they began living together. At that time, Mr Doerr was living in an on-site residence at the premises of a business called Allsafe Self Storage (Allsafe) where he was employed as manager. Allsafe was located in Burleigh Heads. Ms Gardiner moved into the manager's residence at Allsafe.
[9] The couple married on 10 October 1998. Their first child, Xavier Doerr (Xavier), was born on 2 April 2001. Their second child, Avalon Doerr (Avalon), was born on 20 February 2006.
[10] Shortly after Avalon was born, the family moved to new premises at Villa 1, 5019 Riverwood Grove at Royal Pines in Ashmore (Villa 1).
[11] Ms Gardiner described her marriage to Mr Doerr as being happy at the beginning but said that the relationship began to deteriorate in around 2004.
[12] Mr Doerr said the relationship began to deteriorate at an earlier time, in 2000, when Ms Gardiner was pregnant with Xavier.
[28]
Ms Gardiner's allegations of earlier instances of violence
[29]
[13] The reasons for the deterioration of the relationship are disputed.
[14] Ms Gardiner gave evidence about an occasion in 2004 when Mr Doerr hit her on the side of her head and ear causing her to suffer a bleeding ear drum. Although she sought medical treatment for her injury, she did not report the incident because she sought to protect Mr Doerr.
[15] Ms Gardiner said that this first assault was followed by more controlling behaviour and an escalation in violence.
[16] She described another occasion on the day of Avalon's first birthday party and christening when, after an argument, Mr Doerr held Ms Gardiner up by her neck. She sought advice from lawyers shortly after that incident about how to try and leave the relationship safely. In the end she did not attempt to leave because, she said, she was fearful of the outcome.
[17] Ms Gardiner said that Mr Doerr was frequently verbally abusive to her and, less frequently, physically abusive. She was unable to say how many incidents occurred where she was subjected to violence by Mr Doerr.
[18] There was reference in other parts of the evidence to a further incident in January 2013, where Mr Doerr pushed Ms Gardiner over two chairs causing her to hit her head on the floor.
[19] Ms Gardiner did not refer to this January 2013 incident in her evidence at the trial. However, she described it in a statement she provided to police on 10 December 2013 (police statement). That police statement, and an addendum statement dated 21 December 2013 (addendum police statement), were tendered during the re-examination of Ms Gardiner without objection from Mr Doerr's counsel.
[20] In that police statement, Ms Gardiner described having an argument with Mr Doerr about their finances while they were both seated at their dining table. She said that Mr Doerr got up and came around to where she was seated and used both his hands to violently shove her. She ended up falling over two chairs and hitting her head on the ground.[2]
[21] Ms Gardiner applied for a temporary protection order against Mr Doerr on 23 October 2013. That order was made on 24 October 2013.
[22] Mr Doerr denied that he was ever physically abusive to Ms Gardiner. He said in cross-examination that there were occasions during arguments when both he and Ms Gardiner screamed at each other.
[30]
[31] Ms Gardiner and Mr Doerr separated permanently in September 2013.
[32] Ms Gardiner's evidence was that the separation occurred on 14 September 2013, when Mr Doerr left Villa 1 with the children and returned to live at the manager's residence at Allsafe.
[33] Ms Gardiner then engaged family law solicitors who arranged for the children to be returned to her custody on 28 September 2013. On that day, Ms Gardiner caused the locks to Villa 1 to be changed and changed the code for the alarm system.
[34] Mr Doerr denied taking the children without Ms Gardiner's consent but accepted that the children were returned to Ms Gardiner after he received a letter from Ms Gardiner's solicitors threatening that an application would be made for recovery orders.
[35] From 28 September 2013, Ms Gardiner continued to live at Villa 1 with the children while Mr Doerr lived in the manager's residence at Allsafe.
[36] On 6 December 2013, Ms Gardiner and Mr Doerr attended a mediation to discuss parenting and property issues. They reached agreement on a shared parenting arrangement whereby Mr Doerr would have custody of the children every second weekend and every second Wednesday night during the school term. During school holidays, Mr Doerr was to have custody of the children from Monday morning until Thursday morning.
[37] Relevantly, that meant Mr Doerr would have custody of the children from 9 am on Monday, 9 December 2013 until the following Thursday morning.
[31]
The handover of the children on 9 December 2013
[32]
[38] Shortly before 9 am on 9 December 2013, Mr Doerr arrived at the underground car park at Royal Pines Resort to collect the children pursuant to the parenting agreement reached at the mediation. Ms Gardiner and the children were not at the car park when he arrived.
[39] After waiting for several minutes, Mr Doerr telephoned Xavier to ask how long they would be. Xavier responded by saying he thought that Mr Doerr would be picking the children up from Villa 1.
[40] Following this call Ms Gardiner drove the children to meet Mr Doerr.
[41] Ms Gardiner's evidence was that, upon arriving at the car park, she parked approximately 10 metres away from Mr Doerr's car. Ms Gardiner then walked over to Mr Doerr's car with the children and their bags. The children got into Mr Doerr's car. When Ms Gardiner went to return to her own car Mr Doerr started talking to her and followed her back to her car.
[42] On Ms Gardiner's account, when he followed her to her car, Mr Doerr said words to the effect that: "This madness has to stop. I can't even afford the school fees. Do you want to look at Xavier's report online? Do you want to look at his report?" Ms Gardiner told Mr Doerr she had been looking at the report online for years and then got into her car. Once she was in her car, Mr Doerr continued talking to her, saying words to the effect of: "I can't even afford the school fees. I've hired someone to rape and sodomise you." Mr Doerr repeated the statement about having hired someone to rape and sodomise her before Ms Gardiner drove away from the car park.
[43] Ms Gardiner said that after she left the car park she called her family law solicitors and informed them what had occurred.
[44] There were some discrepancies between the account Ms Gardiner gave of the events at the car park in her evidence in chief and her description of those events in the statement she gave to police on 10 December 2013.[5] Ms Gardiner was cross-examined about these discrepancies and differing estimates given by her at different times about the distance between the two cars. In the end, Ms Gardiner did not resile from her evidence about the threat made by Mr Doerr.
[45] Mr Doerr's evidence was that, when Ms Gardiner and the children came across to his car, he told Ms Gardiner he had received a copy of Xavier's report card and asked if she would like to see it. Ms Gardiner told him she received that report online. Mr Doerr put the children's bags in the back of his car. Xavier got into the back seat on the driver's side. Mr Doerr secured Avalon in a child's seat on the passenger side of the back seat. By that time, Ms Gardiner was returning to her car. Mr Doerr got into his car and left with the children without having any further conversation with Ms Gardiner.
[33]
Ms Gardiner's movements on 9 December 2013 after the handover
[34]
[51] After Ms Gardiner left the car park she drove back to Villa 1 before going to the offices of PSC Coast Wide Insurance Brokers where she worked as a life insurance agent.
[52] Ms Gardiner remained at the office for approximately two hours. She then attended a Christmas party at a restaurant at the Marina Mirage resort hosted by Millennium3 Financial Services Pty Ltd (Millennium3), the financial services licensee under which Ms Gardiner provided advice as a life insurance agent.
[53] After leaving the Christmas party, Ms Gardiner went back to work.
[54] She returned home to Villa 1 at about 9 pm.
[55] Ms Gardiner drove into the garage and closed the garage door after her. From there she entered the house through an internal door leading to the laundry. No one was present and the house was locked.
[56] Ms Gardiner put her phone and iPad on the stairs, took off her overshirt, turned on lights on the Christmas tree and a dimmer light in the lounge room, and turned on the television. She cut up a mango and ate it on the couch. She made some telephone calls, including a call to her sister, before she fell asleep on the couch.
[35]
Mr Doerr's movements on 9 December 2013 after the handover
[36]
[57] After Mr Doerr had picked up the children he drove them to Mr Doerr's parents' house and they spent the day on his parents' pontoon boat.
[58] When they were returning to the manager's residence at Allsafe they stopped at a supermarket to buy food for dinner that evening as well as food for the next day when Mr Doerr planned to take the children out on the boat again.
[59] Xavier's evidence at trial was that Mr Doerr had not told the children of the plan to go out on the boat the following day and that they had not purchased any food for that second trip. However, the contemporaneous statements which Xavier made when he was interviewed by the police on 10 December 2013[8] are consistent with that having occurred. On this aspect of the evidence, I prefer the account given by Xavier in his police interview where it differed from his evidence at trial.
[60] After returning to the manager's residence at Allsafe and cleaning up after the day on the boat, Mr Doerr and the children had a barbecue dinner on the deck while watching television.
[61] At some point Mr Doerr noticed a ute drive into the Allsafe complex. This was unusual because it was after normal business hours. Subsequently, Mr Doerr saw a man loading items into the back of the ute. He told Xavier that he would be back in five minutes and then left the children in the manager's residence while he went out to check on the ute.
[62] As things transpired it took Mr Doerr longer than he had expected to resolve the situation with the ute. He did not return to the manager's residence for about 40 minutes. He put his return to the manager's residence at around 10 pm or 10.15 pm.
[63] Xavier said in his evidence at trial that he could not recall his father returning to the manager's residence that evening. The contemporaneous statements he made when he was interviewed by the police on 10 December 2013[9] are consistent with Mr Doerr having returned to the residence. Again, I prefer the account given by Xavier in his police interview where it differed from his evidence at trial.
[64] Following Mr Doerr's return to the manager's residence, the children finished watching a movie on television and then went to bed.
[65] Once the children had gone to bed Mr Doerr cut his hair very short with electric clippers. Under cross-examination, Mr Doerr also accepted that he shaved his body hair that evening, including the hair on his arms and wrists.
[37]
Ms Gardiner's account of the assault on 10 December 2013
[38]
[67] I now set out the substance of Ms Gardiner's evidence as to the alleged assault.
[68] Ms Gardiner woke when she heard a sliding noise in the kitchen of Villa 1. She did not see what made the sound.
[69] The kitchen was adjacent to the lounge room where Ms Gardiner had fallen asleep on the couch.[11] When she woke, Ms Gardiner was lying with her feet positioned closest to the kitchen and her head farthest away.
[70] At the time Ms Gardiner woke it was dark outside. The lounge room was dimly lit by the lights on the Christmas tree, a dimmer light and the television.
[71] Upon waking, Ms Gardiner sat up on the couch. She looked into the kitchen and saw a man wearing dark clothing and a black balaclava type mask. He was standing at the kitchen sink on the far side of the island bench.
[72] Ms Gardiner screamed as loudly as she could.
[73] This caused the man to run towards Ms Gardiner on the couch. He jumped on top of her and forced her back down onto the couch. He sat on her chest and placed his hand over her mouth and held her nose to silence her. As he held her nose, the man began shoving the fingers of latex gloves into Ms Gardiner's mouth.
[74] There was a struggle. Ms Gardiner attempted to grab and scratch the latex gloves the man was wearing on his hands. As she was scratching, one of the gloves tore and Ms Gardiner observed that the man had no hair on his hand.
[75] During the struggle, Ms Gardiner was moved into a position where her knees were on the ground with the man behind her. He was holding her by the neck with his left hand. The man dipped pieces of latex into a container of clear liquid and continued putting them into her mouth while the left side of her head was pressed into the couch.
[76] There was a further struggle and the man forced Ms Gardiner's head off the couch and onto the tiled floor where it impacted her right temple. She found herself in a position where she was lying on her back.
[77] The man put a dry cloth into Ms Gardiner's mouth and placed tape across her mouth. He then held her nose for a second time and Ms Gardiner was unable to breathe.
[78] Ms Gardiner continued to struggle as the man sought to bind her hands together with white garbage bags. The man also placed cloth and tape over her eyes.
[39]
[103] Ms Gardiner telephoned her sister, Felicity Dunn, at approximately 6 am. Mrs Dunn is a police officer.
[104] Mrs Dunn gave evidence that she was initially unable to understand what Ms Gardiner was saying due to her distressed state. When she learned what had happened, Mrs Dunn told Ms Gardiner to call triple zero. Ms Gardiner did so immediately.
[105] The transcript of Ms Gardiner's call to the triple zero operator was tendered.[13]
[106] In that call, Ms Gardiner informed the operator that Mr Doerr had accessed the house by taking two glass panels out of the kitchen window. She said she couldn't see her watch, but it felt like two or three o'clock in the morning.
[107] Ms Gardiner told the operator that Mr Doerr had filled her mouth with a latex glove, taped her mouth and eyes and tied her hands with a garbage bag. She described Mr Doerr's threat the previous morning to hire someone to rape and sodomise her and said she had reported that threat to her solicitor.
[108] Ms Gardiner confirmed that Mr Doerr had left the house. She said that she had tried to get her camera working as he went out the back door.
[109] Ms Gardiner told the operator that she had put some latex under the couch which might contain Mr Doerr's DNA. She said that when she saw Mr Doerr go to the kitchen cupboard to get garbage bags to tie her hands she wondered how a stranger would know the location of garbage bags under the kitchen sink.
[110] The operator sought to confirm that Ms Gardiner could not see Mr Doerr at that point and Ms Gardiner confirmed she couldn't see him because he was wearing a mask. She described the mask as a latex mask.
[111] Ms Gardiner told the operator that she had said "James, that's you. I know it's you now. I know it's you", because Mr Doerr had said that he was going to burn her mother's house down, that he was coming after her sisters and that her family was evil.
[112] Ms Gardiner told the operator that Mr Doerr had taken the mask off, that he had realised she was hurt, that he had gotten ice packs for her, and that he had spoken to her about how "this can all go away".
[113] When the operator asked whether there were any children at the house Ms Gardiner said that Mr Doerr had four days of access but had left the children with his mother.
[40]
(a) referred to the noise from the kitchen which woke her as sounding like a snake;[15]
(b) described the dry cloth being forced into her mouth before she was moved from the couch onto the floor,[16] not after she was on the floor;
(c) referred to the assailant saying the words "this way" and "that way' while forcing her around which she understood to be asking whether she wanted to be raped from the front or behind;[17]
(d) said that she begged with the assailant to leave her alone and (referring to the threat allegedly made earlier that day) that she would tell Mr Doerr that the assailant had raped her;[18]
(e) attributed her bleeding to the onset of her period;[19]
(f) made no reference to her having grabbed the outer mask off the assailant during the struggle, although she described the material from which each of the two masks appeared to be constructed;[20]
(g) made no reference to Mr Doerr having told her he entered through the kitchen louvres, but stated she became aware that was how he entered when she observed him replacing louvre windows;[21]
(h) made no reference to a third louvre having been removed, but stated only that she saw Mr Doerr replace two louvre windows;[22]
(i) referred to Mr Doerr putting on a latex glove to replace the louvre windows,[23] although she subsequently corrected this is a supplemental statement.
[41]
[122] Mrs Dunn remained at Villa 1 until the police finished their examination before eventually following Ms Gardiner to the Burleigh Heads police station.
[123] While she waited for the process of Ms Gardiner providing her statement to finish, Mrs Dunn contacted Dean Evans and Alison Caputo who she knew to be Ms Gardiner's family law solicitors. She provided basic information to the solicitors about the alleged assault and instructed them to prepare materials to apply for orders from the Family Court to recover Xavier and Avalon from Mr Doerr's custody.
[124] While Ms Gardiner was still at Burleigh Heads police station, she was visited by Ms Caputo who asked her to sign a court application and an affidavit for the recovery orders.
[125] Mrs Dunn described Ms Gardiner's mental state at that time as a state of shock. She said that Ms Gardiner was distressed and dishevelled and struggling to string a sentence together. It appeared to Mrs Dunn that Ms Gardiner was unable to think clearly for herself.
[126] After Ms Gardiner had finished at the police station, Mrs Dunn drove her to Primary Medical and Dental Centre in Southport where she attended upon Dr Koriki Love.
[127] Dr Love was not Ms Gardiner's regular doctor, but by that stage it was evening and the centre where Dr Love practised was chosen because it was open. I will return to Dr Love's assessment of Ms Gardiner's condition later in these reasons.
[128] After Ms Gardiner had seen Dr Love, Mrs Dunn drove her to where their mother, Denise Cameron, lived. While she was there, Ms Gardiner received a call from the Child Protection Investigation Unit at Surfers Paradise police station. After that call, Mrs Dunn drove Ms Gardiner to the Surfers Paradise police station where they met Xavier and Avalon.
[129] Neither Ms Gardiner nor Mrs Dunn had any involvement in the discussion which the police had with either of the children that evening. That discussion had concluded by the time Ms Gardiner and Mrs Dunn had arrived at Surfers Paradise police station.
[130] Mrs Dunn drove Ms Gardiner and the children back to Mrs Cameron's house.
[131] Mrs Dunn's evidence was that once they arrived back at Mrs Cameron's house Xavier was confused about what had occurred and was asking questions. She said that she sat down with Ms Gardiner, Mrs Cameron and Xavier and explained in a child appropriate manner what had occurred. She did not give Xavier details of the alleged assault beyond the fact that Mr Doerr had broken into Villa 1 and Ms Gardiner had been hurt.
[42]
Mr Doerr's account of events on the morning of 10 December 2013
[43]
[133] Mr Doerr's evidence was that when he woke up at 5.30 am on 10 December 2013 he walked past Avalon's room and noticed that she was still asleep.
[134] Mr Doerr then began making preparations for the outing on the boat that day by retrieving the children's bathers and towels from the laundry and putting them into two white plastic garbage bags. He also put bottles of water and cans of soft drink into an Esky. He left all those items at the top of the stairs at the manager's residence then woke Xavier to tell him he was going out to get a bag of ice.
[135] Mr Doerr said that when he woke Xavier he asked him if he wanted to have breakfast with Mr Doerr's parents. Xavier told Mr Doerr that he was too tired.
[136] According to Mr Doerr, he then left the manager's residence at Allsafe at about 5.45 am and drove to a nearby service station where he purchased a bag of ice and then drove back. He said he arrived back at the manager's residence at around 6.07 am. He emptied the ice into the Esky, changed into the clothes he proposed to wear on the boat that day, then lay down on the daybed on the deck and fell asleep.
[137] Mr Doerr said that he woke again at about 7.45 am. He asked Xavier to get changed ready for the day on the boat. He then went to see Avalon. When he went to the door of Avalon's room, he saw her lying back on her bed with her iPad. He said that when Avalon saw him, she said words to the effect of "Dad, you've got a shaved head." He said that he then asked Avalon what she was playing on her iPad and Avalon told him that she was on a FaceTime call with Ms Gardiner.
[138] Mr Doerr and the children then completed their preparation for the day's outing and left at around 8.30 am.
[139] They arrived at Mr Doerr's parents' house at around 9.10 am and transferred the Esky, about four white plastic shopping bags containing food items and two white garbage bags with the children's towels and spare clothing down to the boat.
[44]
The children's evidence about the morning of 10 December 2013
[45]
[140] Xavier did not give evidence about being woken by his father before 6 am on 10 December 2013. His evidence in chief was that he woke at around 8 am. He maintained that position in cross-examination when it was suggested to him that Mr Doerr had woken him earlier that morning.
[141] That part of Xavier's evidence was consistent with his police interview on 10 December 2013,[24] where he said that he woke at around 8 am, saw that Mr Doerr was sleeping on the daybed and noticed that he had a "buzz-cut". He said in that interview that after Avalon had woken up, she woke Mr Doerr and they left the manager's residence at Allsafe at about 9 am with the supplies they had bought the previous evening.
[142] In his evidence in chief, Xavier said that he and Avalon took part in a phone call with Ms Gardiner before they left the manager's residence that morning. I do not accept that evidence. Xavier did not make any reference to such a call when he spoke to police after the alleged assault. In his police interview on 21 December 2013,[25] Xavier referred to Avalon having a FaceTime call with Ms Gardiner on the morning in question. That contemporaneous account is consistent with what Ms Gardiner said both in her police statement[26] and in her evidence at trial. It is also consistent with evidence given by Avalon.
[143] In her evidence in chief, Avalon said that she remembered Mr Doerr coming up to her towards the end of her FaceTime call with Ms Gardiner, but that she did not tell Ms Gardiner that Mr Doerr had shaved his head.
[144] Under cross-examination, Avalon said that she remembered waking up and seeing Mr Doerr on the daybed with a shaved head. That was the first time she saw Mr Doerr that morning. She did not accept the suggestion put to her that she first saw Mr Doerr with a shaved head during the course of her FaceTime call with Ms Gardiner, or that she said words to the effect of "Oh Dad, you've shaved your head" during that call.
[46]
The boat trip on 10 December 2013 and following events
[47]
[145] Mr Doerr's evidence was that Xavier drove the boat when they first left his parents' house but that Mr Doerr took over when they entered a narrow canal system. Xavier recommenced driving when they travelled through a number of zones where boats were limited to a speed of six knots.
[146] According to Mr Doerr, they travelled past Marina Mirage at about 10.30 am. While Xavier was driving the boat, Mr Doerr went to the back of the boat to empty water out of the fuel line. Once they reached the start of a 30 knot zone, Mr Doerr drove the boat again.
[147] Xavier gave evidence that Mr Doerr took a number of white garbage bags with him when he went to the back of the boat and that Xavier did not see those bags on the boat again that day. This was something that he mentioned in his police interview on 21 December 2013,[27] but not in his police interview on 10 December 2013. From this, and Ms Gardiner's evidence that Mr Doerr left Villa 1 with a bag containing items used in the assault, Ms Gardiner submitted I should infer that Mr Doerr disposed of those items during the boat trip. I am not prepared to draw that inference.
[148] Mr Doerr and the children subsequently collected a number of people who were joining them for the day on the boat. After having lunch on South Stradbroke Island, they returned to their friends' residence and stayed for dinner.
[149] After dinner, Mr Doerr received a telephone call from his brother, Jason Doerr, requesting that he bring Xavier and Avalon back to Mr Doerr's parents' house. Mr Doerr borrowed a vehicle and drove with the children back to his parents' house.
[150] Police were present at his parents' house when they arrived shortly before 8 pm.
[151] Police then searched Mr Doerr's parents' house and Mr Doerr's car, which he had driven to his parents' house that morning.
[152] Mr Doerr agreed to accompany the police to Burleigh Heads police station. On the advice of his legal representatives he declined to take part in a record of interview.
[153] Mr Doerr gave consent to police downloading the contents of his mobile phones and provided the access codes for those phones to police.
[154] Police charged Mr Doerr with a number of offences arising out of the alleged assault on Ms Gardiner. Mr Doerr was found not guilty after the trial of those criminal charges.
[48]
The police investigation of the alleged assault
[49]
[155] At about 7.45 am on 10 December 2013, Senior Constable Jason Cross from the Gold Coast Scenes of Crime Unit attended Villa 1.
[156] Officer Cross observed that Ms Gardiner had bruising to her inner upper arms, swelling to the right side of her head near the temple area, abrasions on the back of her right shoulder and reddish marks to her face. He took photographs of those injuries.[28]
[157] Upon conducting a visual inspection of the scene at Villa 1, Officer Cross observed a green plastic cup on the dining room table, among other items. He also observed that the couch in the lounge room was out of place and saw items on the floor consisting of a piece of latex glove, a yellow plastic cup, a piece of yellow cloth and a white piece of plastic. He observed a plastic container under the couch.
[158] Officer Cross observed a white cushion on the floor in the lounge room that had what appeared to him to be blood on it. His evidence was that Ms Gardiner informed him that the blood was not related to the alleged incident.
[159] In the downstairs bathroom, Officer Cross observed a plastic lid which he took to be from the plastic container he had seen under the couch.
[160] At the rear of the house, Officer Cross observed a gardening glove near the kitchen louvres. Officer Cross took a trace DNA tape lift from the inside of the gardening glove and, on 18 December 2013, submitted that tape lift to Queensland Health and Forensic Scientific Services for DNA analysis.
[161] Officer Cross explained that police procedures required that if an item could be tested for fingerprints, then that should be done. The risk of transfer of DNA during the fingerprinting process meant that items subject to fingerprint analysis could not then be the subject of DNA collection or analysis.
[162] Officer Cross conducted a latent fingerprint examination of the kitchen louvres. He located a number of latent fingerprints on the interior of the kitchen louvres and submitted photographs of each of those latent fingerprints for comparison purposes. There was no evidence that any of those fingerprints were Mr Doerr's.
[163] Officer Cross also seized items for further analysis including the piece of latex glove, the green plastic cup, the yellow plastic cup, the plastic container and the plastic lid.
[50]
(a) was greater than 100 billion times more likely to have occurred if Mr Doerr had contributed DNA than if he had not;
(b) was greater than 100 billion times more likely to have occurred if Ms Gardiner had contributed DNA than if she had not.
[51]
[168] A mixed DNA profile obtained from the tape lift of the piece of latex glove taken from the lounge room indicated the presence of DNA from two contributors. A comparison of that mixed DNA profile was made with the reference samples provided for Mr Doerr and Ms Gardiner. Based upon a statistical analysis, Ms Rika estimated that the mixed DNA profile obtained from the piece of latex glove:
[52]
(a) was greater than 100 billion times more likely to have occurred if Mr Doerr had contributed DNA than if he had not;
(b) was greater than 100 billion times more likely to have occurred if Ms Gardiner had contributed DNA than if she had not.
[53]
[169] Ms Rika's evidence was that the DNA analysis unit treats the figure of 100 billion as a ceiling even though the statistical likelihood of contribution may exceed that figure. In this case, Ms Rika's actual estimate of the statistical likelihood in favour of Mr Doerr having contributed DNA to the samples analysed was:
[54]
(a) in the case of the gardening glove, 5.3 multiplied by 1024; and
(b) in the case of the piece of latex glove, 5.8 multiplied by 1021.
[55]
[170] Senior Constable Colin Burge gave evidence about an examination he performed on a computer tower seized from Allsafe as part of the police investigation.
[171] The purpose of the examination was to recover video files of footage recorded by security cameras at Allsafe in the period from the evening of 9 December 2013 through to the morning of 10 December 2013.
[172] Officer Burge's examination showed that security camera video files had been recorded to the computer's hard disk every hour beginning at 11 pm on 7 October 2013 until those recordings stopped at 9 pm on 9 December 2013. The recording of security camera video files recommenced at 6.21 am on 10 December 2013.[29]
[173] In a statement prepared for the criminal proceeding against Mr Doerr, Officer Burge said that one likely explanation for there being no recording of security camera video files in the period from 9 pm on 9 December 2013 until 6.21 am on 10 December 2013 was that the camera recording function was deactivated during that period, however he was unable to locate any data to show that the recording function was in fact deactivated.[30]
[174] In his evidence at trial, Officer Burge referred to a search he performed of the events logs on the computer. That search revealed that there was no last successful shutdown of the computer recorded in the events log. Officer Burge said this showed that power was off to the computer over the period from 9 pm on 9 December 2013 until 6.21 am on 10 December 2013, but that it did not reveal how the computer had been shut down.
[175] Under cross-examination, Officer Burge accepted that if power to the computer was cut off for any reason that would be recorded in the computer's events log as a failure to shut down properly. He was referred to evidence he had given at Mr Doerr's criminal trial: that the events log showed that there had been numerous prior incidents of a failure to shut down properly.
[176] The most recent such incident prior to the evening of 9 December 2013 occurred on 6 November 2013. This was the only other incident of a failure to properly shut down which had occurred during the period which Officer Burge had referred to in his evidence in chief (see [172] above).
[56]
Ms Gardiner's condition after the events of 10 December 2013
[57]
[178] Mrs Cameron described Ms Gardiner as having had an effervescent personality prior to 10 December 2013. Mrs Dunn gave evidence that Ms Gardiner was vibrant, driven, strong-willed and highly functioning.
[179] I have already referred to the evidence given by Officer Mustafa and Mrs Dunn concerning Ms Gardiner's mental state when she attended the Burleigh Heads police station on 10 December 2013. Mrs Cameron described Mrs Dunn as having to hold Ms Gardiner up when they came to Mrs Cameron's house later that day. She said that Ms Gardiner was in pain and quite distressed. She was tearful, shaking and traumatised.
[180] Mrs Dunn gave evidence that Ms Gardiner was unable to sleep that night after they returned to Mrs Cameron's house. Mrs Dunn heard Ms Gardiner sobbing during the course of the night. Mrs Cameron gave similar evidence.
[181] At one stage, Mrs Dunn opened the door to the room where Ms Gardiner was lying in bed. Mrs Dunn was dressed in black pyjamas. This frightened Ms Gardiner and she had what Mrs Dunn described as another episode of uncontrollable emotion.
[182] Ms Gardiner and her children did not return to live in Villa 1 after 10 December 2013. They stayed at Mrs Cameron's house until 13 December 2013. On that day they went to stay with Mrs Dunn and her family in Brisbane.
[183] Mrs Dunn described Ms Gardiner's state at that time as remaining in a state of shock. She said there had been little discernible improvement in Ms Gardiner's state since Mrs Dunn first started speaking to her at Burleigh Heads police station after she had finished giving her statement. Mrs Dunn said that Ms Gardiner's state did not improve for a very long time.
[184] Ms Gardiner and her children stayed with Mrs Dunn and her family until about 10 January 2014. During that period, Mrs Cameron and her husband arranged for Ms Gardiner to rent an apartment at Southport.
[185] Shortly after Ms Gardiner moved into that apartment, her brother-in-law, Gavin Dunn, went to stay with Ms Gardiner for a period of about two and a half weeks. Mr Dunn described Ms Gardiner's state during that period as stressed, angry, emotional and tired as she sought to establish some routine for herself and the children after her world had been turned upside down.
[58]
[186] On his first consultation with Ms Gardiner on the evening of 10 December 2013, Dr Love observed Ms Gardiner to be clearly distressed. She was crying and appeared agitated.
[187] In terms of injuries, Dr Love observed swelling on the right side of Ms Gardiner's forehead, slight swelling of her lower lip, linear abrasions overlying her right scapula and posterior shoulder, an ovoid shaped bruise on her right upper arm medial aspect, three circular bruises on her right upper arm proximal to her elbow, an abrasion over the right olecranon, two circular bruises on her left upper arm proximal to her elbow, and fine abrasions on the right side of her upper and lower lips in a radial pattern.
[188] Ms Gardiner attended a further consultation with Dr Love the next day, 11 December 2013, at which time Dr Love observed new bruising at the outer canthus of the right eye. On that occasion, Dr Love discussed referring Ms Gardiner to Katarina Fritzon who is a registered forensic and clinical psychologist. That referral was ultimately made on 18 December 2013.
[189] Ms Gardiner's first session with Dr Fritzon was on 4 January 2014. Upon initial assessment, Dr Fritzon diagnosed Ms Gardiner as meeting the diagnostic criteria for Post-Traumatic Stress Disorder.
[190] Dr Fritzon continued to treat Ms Gardiner over the ensuing years. For the first six months Ms Gardiner attended sessions with Dr Fritzon on a weekly basis. After that initial period the frequency of her sessions was generally fortnightly. By July 2022, Ms Gardiner had attended 133 sessions with Dr Fritzon.[31]
[191] The most recent formal assessment administered by Dr Fritzon was in March 2020. On that assessment, Ms Gardiner continued to meet the diagnostic criteria for Post-Traumatic Stress Disorder, although her level of impairment had improved from extremely severe to moderate. Ms Gardiner also continued to meet the diagnostic criteria for Generalised Anxiety Disorder.
[59]
[192] Ms Gardiner bears the onus of proving the material facts required to establish the elements of her cause of action. Those facts must be proved to the reasonable satisfaction of the court: in other words, on the balance of probabilities. That is the case even though the facts alleged by Ms Gardiner amount to the commission of a crime.[32]
[193] In such a case, the court must feel an actual persuasion of the occurrence or existence of a fact before that fact can be found. Further, the question whether a fact has been proved to the reasonable satisfaction of the court will be affected by the seriousness of the allegation made, the inherent unlikelihood of the occurrence or the gravity of the consequences flowing from a particular finding.[33]
[194] I have had regard to these statements of principle in making the factual findings set out below.
[60]
[195] I am satisfied that, in January 2013, Mr Doerr pushed Ms Gardiner causing her to fall over two chairs and to hit her head on the ground.
[196] Although Ms Gardiner did not refer to this incident in her evidence at trial, the description she gave in her police statement[34] was corroborated in part by Xavier's statements in his police interview on 21 December 2013.[35]
[197] That evidence is of sufficient cogency to persuade me on the balance of probabilities that the incident occurred in the manner described by Ms Gardiner.
[198] I do not accept Mr Doerr's submission[36] that I could not be reasonably satisfied the incident occurred in the absence of contemporaneous photographs of Ms Gardiner's injuries or medical records.
[199] Further, I do not accept Mr Doerr's denial that the January 2013 incident occurred. In circumstances where he never pleaded that Ms Gardiner exhibited physical violence in the relationship, his attempt to give evidence to that effect reflects poorly on his credit on this issue.
[200] While I have doubts as to the veracity of Mr Doerr's denial of the other prior incidents of physical abuse referred to in Ms Gardiner's evidence, I am not ultimately able to find on the balance of probabilities that those incidents occurred.
[201] The January 2013 incident, while not an event for which Ms Gardiner has sought compensation, forms part of the context of the relationship between Ms Gardiner and Mr Doerr against which later events fall for consideration.
[61]
[202] I am satisfied that, in the car park at Royal Pines, Mr Doerr followed Ms Gardiner to her car and threatened her by stating that he had hired someone to rape and sodomise her.
[203] Ms Gardiner's evidence at trial about what was said during that interaction was broadly consistent with the description she provided in her police statement.[37] There were some differences between the two accounts: for example, as to whether Ms Gardiner had got back into her car when the threat was made or whether Mr Doerr repeated the threat. However, those difference are not of such significance to lead me to form an adverse view of Ms Gardiner's credit on the question whether the words she attributed to Mr Doerr were in fact spoken by him. I do not consider that the different estimates Ms Gardiner gave as to the distance from her car to Mr Doerr's car affect the cogency of her evidence about the words that were said to her.
[204] I do not accept Mr Doerr's account of the conversation at the car park. On his account, he did not follow Ms Gardiner or say anything to her once she had started walking back to her car. In addition to being inconsistent with Ms Gardiner's evidence, that account is contradicted by the evidence of Xavier, including the statements he made in his police interviews on 10 December 2013 and 21 December 2013 about Mr Doerr having followed Ms Gardiner, hassling her as she returned to her car.[38]
[205] The evidence of Ms Gardiner, considered together with that of Xavier, is of sufficient cogency to persuade me on the balance of probabilities that Mr Doerr made the threat in the terms described by Ms Gardiner.
[206] I do not accept Mr Doerr's submission that the fact the threat was not heard by the children or anyone else in the car park means I could not be reasonably satisfied the threat was made.[39] None of the witnesses said that anyone else was in the car park at the time of the exchange. Further, I am satisfied that the children's ability to hear the words said by Mr Doerr was compromised by the fact that they had gotten into Mr Doerr's car before Mr Doerr followed Ms Gardiner back towards the car and made the threat.
[207] Likewise, I do not accept Mr Doerr's submission that Ms Gardiner's conduct after she left the car park makes her account of Mr Doerr's threat inherently unlikely. The effect of that submission was that someone who had been the subject of such a threat would not have responded by:
[62]
(a) failing to make a complaint to police about Mr Doerr breaching the temporary protection order made on 24 October 2013;
(b) attending the Christmas party hosted by Millennium3;
(c) remaining at her office alone until 8.45 pm and not returning home until it was dark;
(d) leaving the gate to the back yard of Villa 1 open;
(e) leaving a number of the blinds in the lounge room of Villa 1 partially raised;
(f) leaving the window in Xavier's room open;
(g) failing to set the zonal alarm at Villa 1 to detect motion on the ground floor;
(h) preferring to sleep downstairs on the couch rather than upstairs in the master bedroom which could be secured with a safety latch;
(i) failing to keep her mobile phone on her person but instead leaving it on the stairs;
(j) not arranging to stay with a friend or family member that night, or to arrange for someone to stay at Villa 1.
[63]
[208] As to the issue of complaint, Ms Gardiner's evidence was that she reported the threat to Ms Caputo, her solicitor. That evidence was not challenged in cross-examination. A submission by Mr Doerr that Ms Gardiner's case was deficient because Ms Caputo was not called to confirm the report of the threat reflects a misunderstanding of the effect of the rule in Browne v Dunn[41] and the admissibility of evidence of a prior consistent statement. In the absence of any challenge to Ms Gardiner's evidence about having reported the threat there was no need, and indeed no basis, for her to call Ms Caputo to confirm that evidence. This was a difficulty which permeated much of Mr Doerr's submissions.
[209] Ms Gardiner might have reported the threat to police, but the fact she did not do so does not render her account inherently unlikely. I am satisfied that Ms Gardiner took the threat sufficiently seriously to report it to Ms Caputo.
[210] As to Ms Gardiner's attendance at the Christmas party, there is no reason to think that a person who received a threat of the kind described by Ms Gardiner would necessarily choose not to attend such a party. Ms Gardiner was in a group of people she was familiar with through her work. There is no reason to think she should have felt unsafe at that function.
[211] As to the position of the gate to the back yard, it was open on the morning of 10 December 2013 when Officer Cross took photographs at Villa 1. However, Ms Gardiner described in her addendum police statement the gate having been open for a long time.[42] The gate being open was not an unusual feature which would have caused Ms Gardiner concern had she noticed it when she returned home that evening.
[212] Similarly, the evidence only established that the window to Xavier's room was open on the morning of 10 December 2013. Mrs Dunn's evidence means it was likely she opened that window when she waited upstairs that morning. There was no evidence that the window was open when Ms Gardiner returned home the previous evening or, if it had been, that she was aware of that fact.
[213] As to the other matters identified by Mr Doerr, it can readily be accepted that Ms Gardiner might have acted differently in response to the threat. She might have gone to stay with a friend or family member. She might have returned to Villa 1 earlier in the evening. She might have secured herself in the master bedroom and kept her phone with her at all times. However, I cannot see that her failure to act in any of those ways means her account of the threat should be rejected as inherently unlikely. Ms Gardiner returned to her locked house in a gated community. I accept Ms Gardiner's submission that there was no need for her to do any of the things Mr Doerr criticises her for failing to do.
[64]
[214] I am satisfied that Ms Gardiner was assaulted after a masked intruder broke into Villa 1 in the early hours of 10 December 2013.
[215] I consider the account of the home invasion and assault given by Ms Gardiner in her evidence at trial to be of sufficient cogency to persuade me on the balance of probabilities that the incident occurred broadly in the manner she described.
[216] Ms Gardiner's conduct in calling triple zero in the immediate aftermath of the assault, providing information to police who attended Villa 1 to investigate the assault and subsequently providing a description of the event in her police statement is consistent with the event having occurred.
[217] There are, however, some relatively minor aspects of Ms Gardiner's evidence at trial which I do not accept.
[218] First, I do not accept Ms Gardiner's evidence at trial that the blood on the couch cushion was caused by her bleeding internally during the course of the assault. That is inconsistent with evidence given by Officer Cross that, during his examination of Villa 1, Ms Gardiner told him the blood on the cushion was unrelated to the assault.[43] It is also inconsistent with Ms Gardiner's police statement in which she described the bleeding as being caused by her period.[44]
[219] Secondly, although I accept Ms Gardiner's evidence that the assailant removed his inner mask while Ms Gardiner was in the bathroom, I do not accept her evidence that he did so by pulling the mask down around his neck. That is not something she referred to in her police statement. In my view, Ms Gardiner is mistaken in her recollection of that detail of the assault.
[220] However, these matters do not cause me to form an adverse view of Ms Gardiner's credit more generally on the question whether the assault occurred.
[221] As to issues of credit, Mr Doerr submitted that Ms Gardiner's failure to refer to the fact that he had a shaved head in the triple zero call was explained by her only having become aware of that fact later, during the FaceTime call with Avalon.[45] I reject that submission for two reasons.
[222] First, I do not accept the evidence of Mr Doerr that Avalon referred to him having shaved his head while she was on the FaceTime call with Ms Gardiner. The evidence of both Ms Gardiner and Avalon as to the content of that call was that Avalon did not tell Ms Gardiner that Mr Doerr had shaved his head. I prefer that evidence to Mr Doerr's account.
[65]
"30. These proceedings are a collateral abuse of process for [Ms Gardiner's] purpose of increased
[66]
(a) Access to children; and/or
(b) Apportionment of property
[67]
in the parties' current divorce and related proceedings in the Family Court of Australia."
[68]
[237] In the end, it was conceded that paragraph did not plead a case of fabrication.[58]
[238] Mr Doerr was afforded an opportunity to apply to amend his defence to plead a positive case that Ms Gardiner fabricated evidence of the assault.[59] The following day, Mr Doerr's counsel confirmed that no amendment application would be made.[60]
[239] The result of this is that, on the evidence at trial, Ms Gardiner's physical injuries are only explained by her evidence of the assault. There is no evidence that those injuries might have been caused in some other way. I find that Ms Gardiner's physical injuries were caused by the assault.
[240] Secondly, there is the diagnosis of Post-Traumatic Stress Disorder made by Dr Fritzon for which Ms Gardiner has received treatment on an ongoing basis since January 2014.
[241] In his defence,[61] Mr Doerr denied the allegation that Ms Gardiner had suffered any psychological symptoms. The explanation given for that denial was that the allegation was said to be contrary to expert medical opinion which Mr Doerr intended to rely upon at trial. Mr Doerr then pleaded a positive case that any psychological symptoms Ms Gardiner had suffered were caused by a pre-existing childhood psychiatric condition for which she was seeking treatment prior to 10 December 2013.
[242] At trial, Mr Doerr did not lead any expert medical evidence which cast doubt upon the validity of the diagnosis of Post-Traumatic Stress Disorder made by Dr Fritzon or the symptoms which Ms Gardiner experienced by reason of that disorder. Nor did Mr Doerr lead any evidence that Ms Gardiner suffered from a pre-existing childhood psychiatric condition or that such condition caused any symptoms she experienced after 10 December 2013.
[243] Instead, Mr Doerr sought to undermine the evidence concerning Ms Gardiner's psychological condition by reference to her having gone shopping in the period immediately after the assault and having attended a number of social events.
[244] Ms Gardiner's bank statement[62] indicates that, in the week following the assault, EFTPOS purchases paid from her account comprised:
[69]
(a) $24.99 from Quiksilver on 11 December 2013;
(b) $5.00 from Quiksilver on 12 December 2013;
(c) $110.65 from McDonalds on 12 December 2013;
(d) $11.95 from Sumo Salad on 14 December 2013;
(e) $19.95 from Katies on 15 December 2013;
(f) $169.99 from Pumpkin Patch on 15 December 2013;
(g) $11.60 from Giri Kana Café on 16 December 2013.
[70]
[245] The evidence as to whether Ms Gardiner was present when these purchases was made was not clear. Ms Gardiner did not accept that she made the purchases recorded on her bank statement. She stated that she might have given her card to Mrs Dunn or to Xavier.[63] Mrs Cameron could not recall Ms Gardiner leaving to go shopping at all during the period she stayed at Mrs Cameron's house.[64] Mrs Dunn gave evidence that after 13 December 2013, while Ms Gardiner was staying with Mrs Dunn's family, Ms Gardiner went to shops, but in the company of others.[65]
[246] Even if there had been clearer evidence that it was Ms Gardiner who had gone to the shops and cafes identified in the bank statement in the week following the assault, such evidence would not have altered my conclusion as to the occurrence of the assault or the existence of Ms Gardiner's psychological disorder following the assault.
[247] As Dr Fritzon explained, when asked whether she was surprised Ms Gardiner made the purchases, the diagnosis of Post-Traumatic Stress Disorder did not require that Ms Gardiner be unable to go to a shop. Further, Dr Fritzon was aware from her sessions with Ms Gardiner that it was a matter of importance for Ms Gardiner to try and keep life as normal as possible for the children who, at that time, were on school holidays. Dr Fritzon maintained the view that the level of discomfort Ms Gardiner potentially felt while at a shop would still be consistent with her having Post Traumatic Stress Disorder.[66] Dr Larder, who assessed Ms Gardiner for the purpose of this proceeding, also stated that he did not believe that evidence of shopping could be equated with an absence of the relevant psychological diagnosis.[67]
[248] As to social events, Ms Gardiner accepted that at least once a year she attended what were referred to as Label Lunches which were organised by one of her friends.[68] She explained that she attended those functions with a very close circle of friends. She said that she found it difficult to start to socialise after the assault but that the purpose of doing so, in consultation with Dr Fritzon, was for her to attempt to do things as normally as possible. Mrs Dunn gave evidence to similar effect. Dr Fritzon also confirmed that Ms Gardiner reported feeling very uncomfortable during her attendance at these social functions.
[71]
[261] From the time she made the call to triple zero, Ms Gardiner has consistently identified Mr Doerr as the assailant who broke into Villa 1 and assaulted her.
[262] This is not a case in which it could be found that Ms Gardiner was mistaken in her identification. Her evidence was that she recognised Mr Doerr because of his mannerisms and his reference to her family and that this was confirmed when Mr Doerr removed the inner mask. Further, Ms Gardiner's evidence of the assailant's conduct after she had identified Mr Doerr by name was inconsistent with that person being a random intruder. That conduct included attempts to render assistance by providing Ms Gardiner with water, grapes and ice, offering to drive Ms Gardiner to the hospital and engaging in a lengthy conversation about matters personal to the two of them in the context of their marital breakdown.
[263] In order to find that Mr Doerr was not the assailant I would have to disbelieve Ms Gardiner's entire account of the assault. I have already set out the reasons why I accept much of that account.
[264] For the same reasons, I am satisfied that Mr Doerr was the person who broke into Villa 1 in the early hours of 10 December 2013 and assaulted Ms Gardiner.
[265] In particular, Ms Gardiner's identification of Mr Doerr as the assailant is supported by:
[72]
(a) the otherwise unexplained presence in the lounge room of Villa 1 of the piece of latex glove, with the highest probability of Mr Doerr having contributed his DNA to the profile obtained from that latex;
(b) Ms Gardiner's observation of Mr Doerr having shaved his head on the morning after Mr Doerr in fact shaved his head and (where I have found that Avalon did not convey that information to Ms Gardiner during the FaceTime call at about 8 am on the day of the assault) in circumstances where Ms Gardiner could not have known of that fact;
(c) Ms Gardiner's observation of Mr Doerr having no hair on his hands on the morning after Mr Doerr in fact shaved his body hair (a fact he accepted in cross-examination)[84] and in circumstances where Ms Gardiner could not have known of that fact.
[73]
[266] As to the matter of the shaved head, Mr Doerr submitted that he gave an adequate explanation for having cut his hair short.[85] In fact, Mr Doerr gave a number of differing explanations.
[267] On 13 December 2013, Mr Doerr swore an affidavit in support of an application for bail on charges arising from the assault.[86] Paragraph 37 of that affidavit said:
[74]
"I note that the prosecution allege that I shaved my head in an attempt to alter my appearance. I do admit that I shaved my head on 9 December 2013. I have been practicing yoga and reading a lot of meditation, Buddhism and spiritual books. My research into meditation and Buddhism has shown that shaving off the hair represents cleansing and new beginnings. As [Ms Gardiner] and I had reached some resolution at the mediation on Friday, 6 December 2013, I had decided to treat this as a new beginning. For that reason, I shaved my head and body hair."
[75]
[268] In the defence filed in this proceeding, Mr Doerr denied Ms Gardiner's allegation that he had shaved his head (despite what he had previously deposed to in his bail affidavit) and pleaded that he had given himself a #1 crew cut. The pleaded explanation for him having done so was because it was warm and Mr Doerr could not afford to pay for a haircut. There was no reference to the spiritual matters previously raised in the bail affidavit.
[269] Mr Doerr was not asked during his evidence in chief to explain why he cut his hair on the evening of 9 December 2013. Under cross-examination, he was first taken to the explanation pleaded in his defence and he adopted that explanation.[87] Later in the cross-examination he sought to explain his decision by reference to the fact that he wished to look his best for a woman who was going to be on the boat the following day.[88] Neither of the explanations put forward by Mr Doerr in this proceeding address his decision to shave his body hair.
[270] More importantly, nothing in the evidence explains the coincidence in the timing of Mr Doerr shaving his head and his body hair and Ms Gardiner's description of his appearance during the home invasion and assault in the early hours of the following morning.
[271] There is also the coincidental failure of the computer at the Allsafe premises to record security camera footage for the period from 9 pm on 9 December 2013 to 6.21 am on 10 December 2013.
[272] Officer Bradley gave evidence of a reconstruction to estimate the time it would have taken for Mr Doerr to drive from Carinya Street at the rear of Villa 1 to the intersection of Bermuda Street and Reedy Creek Road near the Allsafe premises. That exercise indicated that by driving at the speed limit and otherwise obeying road rules Mr Doerr would likely have passed through the intersection approximately 20 minutes after leaving Carinya Street.[89]
[273] The reactivation of the computer at Allsafe at 6.21 am on 10 December 2013 is consistent with Ms Gardiner's evidence that she last saw Mr Doerr on Carinya Street shortly before 6 am on 10 December 2013 and Officer Bradley's estimate of the time Mr Doerr would have taken to return from Villa 1 to the Allsafe premises.
[76]
[285] Although I have referred to the attack on Ms Gardiner as the "assault", in legal terms it is properly characterised as a battery. The tort of assault is founded upon the creation of an imminent fear of unlawful conduct. No physical contact is required. A battery requires physical contact.
(a) an intentional or negligent act by the defendant;
(b) that immediately or directly caused physical contact with the plaintiff; and
(c) such contact was offensive, in that it was likely to cause injury or affront.
[78]
[287] Each of these elements is established based on my finding that Mr Doerr broke into Villa 1 and attacked Ms Gardiner in the manner described above. Accordingly, Mr Doerr is liable to Ms Gardiner in the tort of battery.
[288] It remains to assess the damages to which Ms Gardiner is entitled.
[79]
[289] Sections 61 and 62 of the Civil Liability Act 2003 (Qld) (CL Act) require that the court assess an injury scale value (ISV) for the injuries suffered by Ms Gardiner from the range of ISVs set out in Sch 4 of the Civil Liability Regulation 2014 (Qld) (CL Reg) in order to determine the level of general damages[99] in accordance with the rules set out in Part 2 of Sch 3 of the CL Reg.[100]
[290] Ms Gardiner suffered multiple injuries. In such a case, it is necessary to determine the dominant injury and determine where in the range of ISVs provided for that injury it should fall. The ISV for the multiple injuries may be assessed as higher in the range of ISVs for the dominant injury than the ISV that would be assessed for the dominant injury only.
[291] The dominant injury in this case is a psychological injury which is to be categorised by reference to a psychiatric impairment rating scale (PIRS) assessment provided in a report by a medical expert.
[292] The report of Gary Larder dated 21 March 2022,[101] provides a PIRS assessment of 5%. This places Ms Gardiner's psychological injury within Item 12 of Sch 4 of the CL Reg. This item, titled moderate mental disorder, provides an ISV range of 2 to 10 for mental disorders with a PIRS rating between 4% and 10%.
[293] Ms Gardiner also relies on the earlier PIRS assessment of 17% in the report of Dr Mulholland dated 5 March 2015[102] which she submits more accurately reflects the severity of her psychological injury in the period following the assault. On that basis, Ms Gardiner submits that I should assess the ISV for her psychological injury at 6. I accept that submission.
[80]
[297] The court may only award damages for loss of earnings if it is satisfied that the person has suffered loss having regard to the person's age, work history, actual loss of earnings, any permanent impairment and any other relevant matters.[106]
[298] Ms Gardiner is presently 51 years old. She was 42 years old at the time of the assault. She commenced working in the financial services industry in 1996. In about 1997, she joined Coast Wide Insurance Brokers in Southport. After a number of years that business was purchased by the PSC Group and became known as PSC Coast Wide Insurance Brokers (Coast Wide). At that time, Ms Gardiner received shares in the PSC Group. The PSC Group listed on the Australian stock exchange in 2015.
[299] Ms Gardiner was as an insurance agent selling personal risk insurance products: namely, life insurance, total and permanent disability insurance, trauma insurance and income protection insurance. In her evidence, Ms Gardiner referred to conducting her business using a "full advice" model, under which she made recommendations to clients which took account of their personal circumstances such as their financial position and medical history.
[300] Ms Gardiner conducted her business through a company called Caitlin Services Pty Ltd (Caitlin Services) which she incorporated in 1996. This company owned her register of clients and received the commissions paid from insurance products sold by Ms Gardiner. From about 2006, the company also employed an administrative assistant for three days a week.
[301] In about 2004, Ms Gardiner obtained a Diploma of Financial Services which was a requirement for her continued practice as a personal risk insurance agent. From that time, Ms Gardiner and her partners at Coast Wide were required to obtain an Australian Financial Services Licence or to enter an arrangement to act as an authorised representative of a dealer group which held the required licence.
[302] Ms Gardiner, along with her partners, became an authorised representative of Millennium3, as follows:
[81]
(a) Coast Wide became a corporate authorised representative of Millennium3;
(b) Caitlin Services became a corporate authorised representative of Coast Wide;
(c) Ms Gardiner became an authorised representative of Caitlin Services.
[82]
[303] Ms Gardiner's business grew over time. In about 2005, Ms Gardiner purchased a register of between 30 and 40 clients from one of her former partners in the Coast Wide business, John Fowler, for $70,000. Some years later, in 2013, she purchased another register of between 30 and 40 clients from another former partner in the Coast Wide business, Peter Wardrop, for $100,000.
[304] Ms Gardiner also sought to grow her business through referrals over this period. She would meet with an average of one potential new client each day, as well as meeting with existing clients to review their insurance position.
[305] By December 2013, Ms Gardiner's client register numbered about 700. She intended to continue working in that business until she was 67 years old.
[306] After the assault Ms Gardiner attempted to resume her work, but those attempts were unsuccessful. In January 2014, she made a claim under her income protection insurance policy and, after the 60 day waiting period, received income protection benefits under the policy for around 18 months.
[307] Ms Gardiner's evidence was that when she attempted to return to work her anxiety made it impossible for her to meet with new clients. She also had difficulty applying the degree of concentration required to investigate clients' personal circumstances and to prepare the documents setting out her advice as to which insurance products best met the clients' requirements.
[308] From about January 2014, Ms Gardiner entered into an arrangement with Mr Wardrop where she paid for him to manage a number of her existing clients. She also received assistance from an administrative assistant employed by Coast Wide under an arrangement where part of that assistant's wages would be paid from commissions payable to Ms Gardiner.
[309] Ms Gardiner's inability to provide the service her clients required and expected of her meant that she began to lose clients. In the 18 months she was in receipt of income protection benefits, Ms Gardiner lost several clients every week.
[310] Ms Gardiner made four unsuccessful attempts to return to work. It was not until about 2016 that she was able to do so on a permanent basis. At that time, she remained unable to work to her previous capacity due to anxiety and an inability to concentrate. Her energy levels were very low. She continued to lose clients at a rate of several per week. Ms Gardiner's evidence was that, since the assault, she has lost about 350 clients. Her client register is now about 350 clients.
[83]
(a) the difference between the actual external labour costs incurred by the business as a result of the assault and the notional external labour costs which would have been incurred by the business but for the assault; and
(b) the reduction in the gross income of the business.
[84]
[323] I accept Ms Gardiner's submission that Mr Lee's analysis represents the most sensible analysis of the scope of her past economic loss. The cross-examination of Mr Lee did not cause me to question the appropriateness of the methodology he applied in quantifying the loss. Mr Doerr led no evidence to challenge Mr Lee's methodology or his assessment of the loss Ms Gardiner suffered based on the application of that methodology.
[324] Mr Lee assessed the replacement labour costs in the amount of $67,723.[121] I accept that assessment.
[325] Mr Lee then assessed the reduction in the gross income after tax of the business for the period up to 31 October 2021 on three different scenarios.[122] The most conservative scenario (Scenario 1) assessed that past economic loss to be $252,428.[123] The mid-range assessment for that period was $335,695.[124] The upper range of the assessments was $418,004.[125]
[326] Ms Gardiner submitted that the evidence of the impact of her psychological injury on her capacity to perform her work duties justifies adopting the mid-range assessment of the reduction in the gross income of the business. After considering Mr Lee's evidence, I do not accept that submission. In cross-examination, Mr Lee relied on Scenario 1 as having taken account of unrelated causes of reduction in business income such as client attrition and reduction in commission levels after the Royal Commission.[126]
[327] The effect of that evidence was that there was a difference of approximately $115,000 between the long term average annual income of the business before the assault ($315,000) and after the assault ($200,000). By assessing a maximum annual reduction in income under Scenario 1 ($100,000) which was less than the average annual reduction, Mr Lee sought to take account of the potential that causes unrelated to the assault contributed to the reduction in gross income. Mr Lee's final report contains a slightly lower figure for the average annual reduction in gross income, that being $106,242 in current terms.[127] On that evidence, whichever figure is adopted as the average annual reduction in gross income, neither the mid-range scenario (with a maximum reduction in annual income of $130,000) nor the upper range scenario (with a maximum reduction in annual income of $160,000) took sufficient account of these factors.
[85]
"You have three hours with 15 minutes reading time and I think there was one question in 70 which related to what I've done for 25 years. The questions are different so there are thousands of people who do what I do who have just said it's too hard, we're not doing it, and have left the industry."
[86]
[334] Secondly, the medical evidence shows that the impact of Ms Gardiner's psychological injury has improved significantly as time has progressed. This is consistent with the reduction in the PIRS assessment over time, referred to in [292] and [293] above.
[335] In his most recent report,[134] Dr Larder referred to the improvement in Ms Gardiner's presentation and expressed the opinion that it was likely that she would "be able to negotiate her current work-related regulatory changes and continue to develop her business and within two years return to full time employment". In re-examination,[135] Dr Larder stated that he was not aware of the detail of the change in Ms Gardiner's business from a "full advice" model to a "general advice" model. He also noted the potential that reduced job satisfaction which Ms Gardiner might feel under the changed business model might exacerbate her psychological injury. Nevertheless, nothing in Dr Larder's evidence in re-examination detracted from his evidence as to the significant improvement in Ms Gardiner's condition over time.
[336] Thirdly, the improvement in Ms Gardiner's psychological condition over time has been accompanied by an improvement in the gross income of the business. As Mr Lee noted,[136] the gross income of the business increased during the years ended 30 June 2020 and 2021 (when compared with 2018 and 2019).[137] This increase was even more marked in the period to 31 March 2022. Although the final period assessed by Mr Lee comprised only three financial quarters, the gross income earned in that period ($196,377) was greater than the gross income earned in any of the prior four financial years. Extrapolating the figure for the period to 31 March 2022 to a full year by adding the average quarterly income earned over the first three quarters ($196,377 / 3 = $65,459) would imply gross income for the year ended 30 June 2022 of $261,836. That suggests a significant increase in gross income compared to the current value of gross income in each of the years ended 30 June 2018 to 2021.
[337] Mr Lee explained this increase by reference to his instructions that an increase in the cost of insurance premiums (which would have occurred regardless) had contributed to the increase. Those instructions were not proved by any evidence, whether from Ms Gardiner or otherwise. Consequently, the gross income of the business after 30 June 2021 does not appear to be consistent with Ms Gardiner's psychological condition continuing to cause any ongoing reduction in gross income.
[87]
(a) $67,723 in replacement labour costs;
(b) $252,428 for reduction of gross income (after tax) to 31 October 2021;
(c) $37,972 for reduction of gross income (after tax) from 1 November 2021 to judgment.
[88]
[342] Interest at a rate of 1.85%[140] from 10 December 2013 (8.8 years) is $58,302.
[89]
[343] Mr Lee calculated Ms Gardiner's future economic loss on the same two alternate bases referred to in [330] above. He calculated that future loss based on the reduction in the gross income of the business under Scenario 1 to [141]$672,709.141 He calculated future loss under the second methodology based on the reduction in Ms Gardiner's earning capacity to [142]$277,509.142
[344] For the reasons addressed in assessing Ms Gardiner's economic loss in the period from 1 November 2021 to the date of judgment, I have concluded that future economic loss should be assessed on the basis that the gross reduction in the income of the business was less than Mr Lee adopted for the purposes of his calculation under Scenario 1.
[345] Again, in the circumstances, it seems appropriate to discount the figure calculated by Mr Lee under Scenario 1 by 40%. This gives a figure of $403,625, which is between the two figures calculated by Mr Lee described in [343] above.
[346] Given the increase in the gross income of the business, particularly since 30 June 2021 as described in [336] and [337] above, I do not consider it appropriate to include any additional amount in the assessment of future economic loss in the nature of a capital loss upon the ultimate sale of Ms Gardiner's register of [143]ents upon retirement.143
[347] I assess Ms Gardiner's future economic loss in the amount of $403,625. Reducing this amount by a discount factor of 15% to account for contingencies[144] gives a sum of $343,081.
[90]
[348] Damages for gratuitous services provided to an injured person can only be awarded where the requirements of s 59 of the CL Act are met:
[91]
(a) the services are necessary;
(b) the need for the services arises solely out of the injury in relation to which damages are awarded;
(c) the services are provided for at least 6 hours per week over a period of at least 6 months.
[92]
[349] Mrs Dunn gave evidence that she provided the following care and assistance to Ms Gardiner following the assault:
[93]
(a) approximately eight hours care per day for Ms Gardiner comprising cooking, cleaning and assisting Ms Gardiner's daily functioning, as well as providing comfort and emotional support during the period Ms Gardiner and her children stayed with Mrs Dunn and her family from 13 December 2013 to 10 January 2014;[145]
(b) two to three hours per day rendering consolation to Ms Gardiner by telephone in the two and a half week period when Mr Dunn and his children stayed with Ms Gardiner and her children after they moved into the new apartment at Southport;[146]
(c) between 14 to 20 hours of care per week in the six months from the end of January 2014 to the end of June 2014, including time spent cooking, cleaning and looking after Ms Gardiner's children;[147]
(d) approximately five hours per week comprising emotional support in the period since July 2014.[148]
[94]
[350] Mrs Cameron gave evidence that she provided the following care and assistance to Ms Gardiner following the assault:
[95]
(a) almost continuous care over the several days which Ms Gardiner and her children spent with Mrs Cameron immediately following the assault;[149]
(b) approximately 10 hours per week preparing meals and travelling to Brisbane to see Ms Gardiner over the month she was staying with Mrs Dunn and her family;[150]
(c) approximately 10 hours searching for new premises for Ms Gardiner and her children;[151]
(d) approximately 15 hours setting up the new premises;[152]
(e) one to three hours each evening in the first few weeks after Ms Gardiner moved into the new premises helping with cooking and housework as well as providing emotional support;[153]
(f) approximately 10 to 12 hours per week over the first half of 2014 transporting the children to or from school or to sport, as well as continued emotional support.[154]
[96]
[351] Mr Cameron's evidence was broadly consistent with that of Mrs Cameron although, aside from his involvement in searching for new premises and moving Ms Gardiner's belongings from Villa 1 to those new premises, it seems he left the provision of assistance to Mrs Cameron and Mrs Dunn.
[352] It is clear from this evidence that a significant amount of the assistance provided to Ms Gardiner was in the form of emotional support. The question whether that form of support can be characterised as gratuitous services for the purpose of s 59 of the CL Act does not appear to be settled.
[353] In Wormleaton v Thomas & Coffey Ltd,[155] Campbell J held that, in circumstances where the purpose of an award of damages for gratuitous services was to compensate a plaintiff for the cost (whether actually incurred or not) of services rendered to them because of their incapacity to render them to themselves, emotional support is not a service that one is capable of rendering to oneself. That case can be distinguished from the present on the basis that there was no diagnosis of any psychiatric or psychological injury.
[354] For that reason, I prefer the view expressed by Macfarlan JA (with whom Ward and Gleeson JJA agreed) in Pel-Air Aviation Pty Ltd v Casey,[156] that in the case of a psychological injury the gratuitous services for which damages can be awarded can include assistance in the form of emotional support where that support is necessary and appropriate to relieve the effects of the psychological injury.
[355] The evidence of Dr Fritzon[157] confirms that this emotional support was medically therapeutic for Ms Gardiner. Had it not been provided, Ms Gardiner would have needed to access additional professional care services above the level of treatment provided by Dr Fritzon.
[356] On that basis, I am satisfied that the gratuitous services provided to Ms Gardiner after the assault meet the requirements of s 59 of the CL Act.
[357] In her written submissions, Ms Gardiner fairly acknowledged that the amount of damages should not be assessed based on the estimates provided by Mrs Dunn, Mrs Cameron and Mr Cameron so long after the events. Instead, Ms Gardiner submits that the assessment should be based on Dr Fritzon's identification of the appropriate level of care, that being:
[97]
(a) 14 hours per week for the 29 weeks to mid-2014; and
(b) 7 hours per week for the 78 weeks from mid-2014 to the end of 2015.
[98]
[358] That level of care is substantially less than the estimates provided by Mrs Dunn and Mrs Cameron and I accept it is appropriate to use those figures to assess the value of the gratuitous services. At the agreed rate of $35 per hour, that gives a figure of $33,320.
[359] I also allow the following additional amounts:
[99]
(a) 12 hours care on each of the first two days after the assault (in addition to the time set out in [357](a) above), being $840; and
(b) 40 hours for the assistance provided by both Mr and Mrs Cameron with moving Ms Gardiner and the children from Villa 1 to their new premises, being $1,400.
[100]
[360] I will not allow any amount for gratuitous services after the end of 2015.
[361] The total amount I will allow for gratuitous care is $35,560. There can be no interest awarded for gratuitous care.[159]
[101]
[362] As I have already indicated, I will not allow any amount for gratuitous services after 2015.
[102]
[363] Special damages should be allowed in the amount of $13,412.40 comprising:
[103]
(a) the benefit paid to Ms Gardiner by Medibank Private in the amount of $1,745.40;
(b) the cost to Ms Gardiner of 47 sessions[160] with Dr Fritzon, being $6,345 at a bulk billed rate of $135 per session;
(c) the cost of travel associated with Ms Gardiner's attendance at 134 sessions with Dr Fritzon, being $2,814 based on a round trip of 30 kilometres per session and a rate per kilometre of 70 cents;[161]
(d) the cost of medication (Luvox), being $2508 at a cost of $38 per box every six weeks from March 2015 (7.66 years, 66 boxes in total).
[104]
[364] Interest at a rate of 1.85%[162] from 10 December 2013 (8.8 years) on this sum, less the Medibank refund which has not yet been incurred by Ms Gardiner, is $1,899.
[105]
[365] Dr Fritzon's evidence was that Ms Gardiner is likely to have to continue to attend sessions with a psychologist on a fortnightly basis for another two years. As Dr Fritzon is retiring from practice, those sessions will be charged at a higher rate ($240) than Ms Gardiner paid when Dr Fritzon bulk billed her sessions. A total of 52 further sessions at $240 per session will cost $12,480.
[366] Ms Gardiner also seeks the cost of medication for a further two years, that being $646 (17 boxes at a six weekly interval and a cost of $38 per box).
[367] I will allow future special damages in the amount of $13,126.
[106]
[368] Ms Gardiner claims aggravated damages. There is no statutory preclusion on such a claim in a personal injury proceeding where the act that caused the personal injury was an unlawful intentional act done with intent to cause personal injury.[163] The assault committed by Mr Doerr satisfies that requirement.
[369] Aggravated damages are compensatory in nature.[164] An award of aggravated damages provides additional compensation for the injured feelings of a plaintiff where his or her sense of injury resulting from the wrongful physical act is justifiably heightened by the manner in which or the motive for which the defendant did the act.[165]
[370] In addition to the circumstances of the assault itself, the manner in which a defendant conducts his or her defence to the claim, and the impact such conduct might have on the plaintiff are also relevant.[166]
[371] In the present case, Ms Gardiner was subject to a violent assault by a masked intruder in her home. Further, Mr Doerr's denials that he committed the assault prolonged the litigation which, on the evidence of Dr Fritzon, had detrimental impact on Ms Gardiner's psychological state. Mr Doerr pleaded that Ms Gardiner's psychological condition was a pre-existing longstanding condition but did not adduce any evidence of that. Having regard to the matters referred to in [235] to [238] above, it is apparent that Mr Doerr gave instructions to run a case that Ms Gardiner fabricated her account of the assault and the physical evidence of Mr Doerr's involvement. He had not pleaded that case. This was fairly described in Ms Gardiner's written submissions as an attempted ambush. Finally, the overly long and repetitious cross-examination of Ms Gardiner, which lasted for more than two days, included unfounded suggestions of exaggeration or dishonesty on her part concerning the timing of her registration with the Tax Practitioners Board and representations made on a website concerning her professional qualifications.
[372] In all of the circumstances, I consider this to be an appropriate case in which to make an award of aggravated damages as additional compensation where Ms Gardiner's sense of injury resulting from the assault is justifiably heightened by the manner in which Mr Doerr committed that assault and, thereafter, the manner in which he has defended this claim.
[107]
[381] Ms Gardiner also claims exemplary damages. Again, the nature of the assault means that the statutory prohibition on the award of damages in claims for personal injury damages does not apply.[171]
[382] Exemplary damages are punitive in nature. In addition to punishing a defendant and providing retribution to the plaintiff, they are awarded to act as a deterrent to the defendant and others and to demonstrate the court's disapproval of the defendant's conduct.[172]
[383] Mr Doerr has not been punished for the assault, having been acquitted following a trial in the District Court. However, for the purpose of this civil proceeding I act on the basis that he committed the assault.
[384] I consider it appropriate that, Mr Doerr not otherwise having been punished, that the assault I have found he committed is conduct which calls for an award of punitive damages.
[385] In P v R, Daubney J awarded exemplary damages of $50,000 and observed that he had fixed that amount to convey the court's disapproval of the conduct of the defendant in that case.
[386] I accept Ms Gardiner's submissions that a similar award is appropriate in this case. An award of that magnitude will convey the court's disapproval of Mr Doerr's conduct.
[387] I will award exemplary damages in the amount of $50,000.
[388] Interest at a rate of 4%[173] from 10 December 2013 (8.8 years) is $17,600.
[108]
[389] In summary, I have assessed the damages to be awarded to Ms Gardiner as follows:
[109]
[390] There will be judgment for the plaintiff in the sum of $967,113.40. I will hear the parties as to costs.
[40] Defendant's written submissions at [34]-[52].
[121]
[45] Defendant's written submissions at [112]-[113].
[122]
[47] Transcript 2-65:32 to 2-66:26 (pinching of Ms Gardiner's nose); Transcript 2-72:8-25 and 2-100:1-5 (assailant not having hair on hands); Transcript 2-99:36-40 (assailant having a shaved head); Transcript 3-2:46 to 3-3:7 (third louvre); Transcript 3-17:41-45 and 3-20:10-16 (assailant leaving Villa 1 with a white plastic garbage bag of items).
[123]
[49] Transcript 2-73:20-32; and see Exhibit 37, paragraph [59].
[53] Defendant's written submissions at [53]-[54] (the sound which woke Ms Gardiner); [67]-[70] (pinching of Ms Gardiner's nose); [85]-[88] (hole in the fence); [98]-[103] (how Ms Gardiner became aware of means of break in); [104]-[107] (number of louvres observed to be missing); [115]-[117] (Mr Doerr leaving Villa 1 with a bag containing items used in assault).
[72] Defendant's written submissions at [137]-[138].
[128]
[75] Defendant's written submissions at [56]-[63] (events following Ms Gardiner waking); [64]-[66] (liquid in the plastic container); [71]-[79] (attempts to capture footage of Mr Doerr departing Villa 1); [90]-[94] (initial failure to identify Mr Doerr as the assailant); [142]-[145] (absence of Mr Doerr's fingerprints on the louvre panes); [146]-[148] (location of items on kitchen bench and outside kitchen window); [149] (Ms Gardiner's jewellery not being dislodged); [150]-[151] (absence of Mr Doerr's fingerprints on plastic cup or plastic bags].
[109] Exhibit 63, paragraphs [94], [97]-[103], [107]-[109], [117] and [129]-[134].
[142]
[113]Corporations Act2001 (Cth), ss 921B(3), 921BA(2) and 921C. As someone who was authorised to provide personal advice on behalf of a financial services licensee in relation to insurance products Ms Gardiner was a relevant person for the purposes of those provisions.
[143]
[116] Exhibit 44, paragraph [14]; Transcript 5-33:27 to 5-34:31.
[118] For example, dividend income from Ms Gardiner's shares in the PSC Group and distributions paid by Caitlin Services at times which were likely to have had regard to tax consequences.
[138] Exhibit 44, paragraphs [4.5(x)] and [6.10(vii)].
[156]
[139] Exhibit 44, paragraphs [5.1]-[5.5] and [6.10(iii)].
[157]
[140] The rate being approximately half the rate for 10 year Treasury bonds as at the beginning of the quarter in which this judgment is given: CL Act s 60.
[144] This would include the possibility that Ms Gardiner might in future achieve the qualifications needed for her to return to a "full advice" model.
[160] This number excludes 87 sessions which Ms Gardiner attended with Dr Fritzon under a Mental Health Treatment Plan providing for 10 sessions per year.
[162] The rate being approximately half the rate for 10 year Treasury bonds as at the beginning of the quarter in which this judgment is given: CL Act s 60.
[23] During his evidence in chief Mr Doerr sought to give evidence about an occasion when Ms Gardiner had scratched him. That evidence was objected to on the basis that Mr Doerr had not pleaded any allegation of violence on the part of Ms Gardiner. Mr Doerr's counsel did not press for the admission of that evidence in the face of that objection.[3]
[24] Evidence about the nature of the parties' relationship was also given by Xavier, who was called as a witness by Ms Gardiner.
[25] Xavier's evidence corroborated Ms Gardiner's claim that Mr Doerr had been verbally and physically abusive to her prior to the alleged assault.
[26] In his evidence in chief, Xavier described the relationship between his parents over the period from about 2011 to 2013 as unhealthy and abusive. He said he observed several occasions where Mr Doerr had screamed at Ms Gardiner so violently and for such an extended period it caused Ms Gardiner to have difficulty breathing and an ambulance was called.
[27] Xavier also gave evidence in chief about an occasion in about January 2013 when he came downstairs to find Ms Gardiner extremely distraught after an altercation with Mr Doerr. On that occasion Ms Gardiner was again taken from the house by ambulance.
[28] Xavier had previously described this incident in an interview with police which occurred on 21 December 2013. The transcript of that police interview was tendered by Mr Doerr's counsel.
[29] In that interview, Xavier said that from his bedroom at Villa 1 he heard Mr Doerr scream and then heard Ms Gardiner say that she was leaving. He then heard Mr Doerr scream for Ms Gardiner to stay down, followed by a crumbling sound. When he came downstairs he saw that one of the chairs was half broken and Ms Gardiner was lying down, hysterical.[4]
[30] It was never put to Xavier during his cross-examination that the verbal abuse or the incident he described involving the chair did not occur.
[46] Mr Doerr denied having ever told Ms Gardiner that he had hired someone to rape and sodomise her.
[47] Xavier also gave evidence about what occurred at the car park on the morning of 9 December 2013. In his evidence in chief, Xavier said that he observed Mr Doerr badgering Ms Gardiner. He described Mr Doerr as being red-faced and talking to Ms Gardiner in an aggressive manner. However, he could not hear what Mr Doerr said.
[48] Xavier provided a broadly similar description of Mr Doerr's conduct towards Ms Gardiner when he was interviewed by police in December 2013.
[49] During his police interview on 10 December 2013, Xavier said that Mr Doerr started hassling Ms Gardiner when they came across to Mr Doerr's car. He said that Mr Doerr followed Ms Gardiner back to her car and seemed to be hassling her.[6] The transcript of that interview was also tendered by Mr Doerr's counsel.
[50] Xavier gave a similar description, with some further details, during his police interview on 21 December 2013. Relevantly, he continued to describe Mr Doerr as having hassled Ms Gardiner as she returned to her car.[7]
[66] Mr Doerr said he went to bed at around 11.20 pm and did not go anywhere from that time until he woke at 5.30 am the next day.
[79] During the struggle on the floor Ms Gardiner observed that the man had an erection. He said words to the effect of "Fucking get down, bitch. Stay down, bitch. Fucking get down, bitch." The man's voice was muffled.
[80] After struggling with the assailant Ms Gardiner managed to get her hands free from the garbage bags and remove the tape from her eyes. She managed to grab the man's mask and pull it from his head to find he was wearing a second balaclava type mask underneath. The outer mask was made of cotton. The inner mask was made of lycra bike short material.
[81] At some point during the struggle the container of clear liquid was knocked to the ground. Ms Gardiner knocked that container underneath the couch with her elbow.
[82] The man eventually left Ms Gardiner on the floor in the loungeroom and went to the kitchen.
[83] At some point, Ms Gardiner was able to remove the tape and cloth from her mouth and tried to vomit in an attempt to get the latex out of her mouth and throat. She pushed a piece of cloth and a piece of latex rubber glove under the couch.
[84] The man then returned from the kitchen and sat on the couch. Ms Gardiner began to recognise Mr Doerr from the way he sat hunched over.
[85] This was confirmed when the man said to Ms Gardiner that he was coming for her family, he was going to burn her mother's house down, that he was coming for Ms Gardiner's sisters and that Ms Gardiner's family was evil. It was at that moment, according to Ms Gardiner, that she realised the man who had attacked her was Mr Doerr.
[86] Upon that realisation, Ms Gardiner said words to the effect of: "The jig is up." She referred to Mr Doerr by his name. From that point, the violence of the assault diminished.
[87] After the struggle, Ms Gardiner noticed blood on a couch cushion and realised she had started bleeding from her vagina. Her period was not due.
[88] Mr Doerr told her that he would go and get a tampon, but he did not locate one.
[89] Ms Gardiner told Mr Doerr that she needed to get to the bathroom because she was bleeding. While she was in the bathroom, Mr Doerr brought her some grapes and said that Ms Gardiner should eat them to dislodge the latex from her throat. Ms Gardiner continued her attempts to remove all of the latex from her throat and attended to the bleeding.
[90] When she was coming out of the bathroom, Ms Gardiner saw Mr Doerr standing in front of the bathroom door. By that time, he was no longer wearing the inner mask over his face. He had pulled the mask down around his neck. She observed that he had shaved his head.
[91] Mr Doerr then told Ms Gardiner to sit down. The two of them sat down at the dining room table. By this time, it was light outside.
[92] Mr Doerr stated words to the effect of: "We're gonna call off the lawyers and do things my way." Mr Doerr told Ms Gardiner that she was going to "sack that bitch, Allison Caputo" because Ms Caputo (Ms Gardiner's solicitor) was affecting Mr Doerr's ability to see the children.
[93] Mr Doerr then said he wanted Ms Gardiner to write a letter of apology to Mr Doerr's father about artwork in Villa 1 which Mr Doerr's father was seeking to recover from Ms Gardiner after the separation.
[94] During this conversation Mr Doerr brought a plastic cup of water and bags of ice which he put on Ms Gardiner's shoulder and arm. He offered to drive Ms Gardiner to the hospital. Ms Gardiner responded by telling Mr Doerr that there was no way that she would get in a car with him. Mr Doerr then asked: "Do you really hate me that much that you wouldn't get in a car with me?"
[95] At some point during the conversation at the dining table (although she could not recall at what point), Ms Gardiner asked Mr Doerr how he had gotten into Villa 1. Mr Doerr told her he had come through louvres in the kitchen. Ms Gardiner told Mr Doerr that she and the children would never feel safe in the house again.
[96] Ms Gardiner asked Mr Doerr where the children were. He told her they were with his mother.
[97] Eventually, Mr Doerr sought to leave Villa 1 through the back door. That door was locked. Ms Gardiner had to go and get the key to open the door for Mr Doerr to leave.
[98] When Mr Doerr left through the back door he was no longer wearing latex gloves. Mr Doerr took a white garbage bag with him when he left.
[99] Ms Gardiner told Mr Doerr to replace the louvres in the kitchen which he had removed to gain access to the house.
[100] Mr Doerr took a gardening glove from a bar table outside the back door and put it on his right hand before putting the kitchen louvres back in place.
[101] Ms Gardiner watched from inside the kitchen as Mr Doerr replaced two of the three louvres which had been removed. She then ran to the stairs to get her phone to take a photograph of Mr Doerr leaving Villa 1.
[102] When Ms Gardiner returned to the kitchen the third louvre had been replaced. Ms Gardiner could not see Mr Doerr for a few moments. She then saw him in Carinya Street at the rear of Villa 1. She first tried to take photographs of Mr Doerr but the photographs she took were grainy. She then recorded a short video of Mr Doerr.[12] That video was recorded just before 6 am on 10 December 2013.
[114] Police attended at Villa 1 soon after Ms Gardiner's call to the triple zero operator ended. I will return to certain aspects of the police investigation later in these reasons.
[115] At approximately 8 am, Ms Gardiner received a FaceTime call from Avalon.
[116] Ms Gardiner asked Avalon whether she was with Nana, meaning Mr Doerr's mother. Avalon responded by saying that she wasn't with Nana, but that Mr Doerr was asleep on the daybed outside. Ms Gardiner understood that to mean one of the daybeds on the deck of the manager's residence at Allspace.
[117] Under cross-examination, Ms Gardiner refuted the suggestion that Avalon disclosed the fact that Mr Doerr had shaved his head during this FaceTime call.
[118] Shortly after 8 am, Mrs Dunn arrived at Villa 1 with her children, having travelled from Brisbane. She was let into the house by police in attendance but was not permitted to have any physical contact with Ms Gardiner or to access the lower floor of the house beyond the stairs.
[119] After briefly checking on Ms Gardiner's wellbeing, Mrs Dunn was directed upstairs until the police had concluded their examination of the scene. She said it was probable, due to the time of year, that she opened a window in one of the upstairs bedrooms.
[120] At about 10 am, Ms Gardiner was taken to Burleigh Heads police station. She provided a statement to Constable Alper Mustafa.[14] Officer Mustafa explained in his evidence that the process of taking the statement took around five or six hours due to Ms Gardiner's emotional state. Officer Mustafa described Ms Gardiner as tearful and distressed.
[121] Although it is broadly consistent with the account given by Ms Gardiner in her evidence at trial set out at paragraphs [68] to [102] above, the statement does not accord in every respect with that evidence. In the statement Ms Gardiner:
[132] It is convenient at this point to turn to Mr Doerr's account of the morning of 10 December 2013.
[164] On 11 December 2013, Officer Cross conducted a fingerprint examination on the green plastic cup, the yellow plastic cup, the plastic container and the plastic lid. That examination did not locate any identifiable latent fingerprints on any of those items.
[165] On 28 May 2014, Officer Cross conducted a trace DNA tape lift on the piece of latex glove taken from the lounge room in Villa 1. He subsequently submitted that trace DNA tape lift to Queensland Health Forensic and Scientific Services for DNA analysis.
[166] The trace DNA tape lifts taken from each of the gardening glove and the piece of latex glove were analysed by Kylie Rika, a senior scientist in the DNA analysis unit of Queensland Health Forensic and Scientific Services.
[167] A mixed DNA profile obtained from the tape lift of the inside of the garden glove indicated the presence of DNA from three contributors. A comparison of that mixed DNA profile was made with the reference samples provided for Mr Doerr and Ms Gardiner. Based upon a statistical analysis, Ms Rika estimated that the mixed DNA profile obtained from the inside of the garden glove:
[177] Officer Burge accepted a proposition couched in general terms that, in circumstances where he had not himself looked at the video files, there was a chance that these earlier failures to shut down properly would also have resulted in security camera footage not being retained on the hard drive.
[223] Secondly, Ms Gardiner called triple zero to obtain assistance from the police in the immediate aftermath of the assault. In circumstances where she had already told the triple zero operator that Mr Doerr was the person who broke in and assaulted her, including by identifying him by his name and date of birth, there was no reason for her to have given any further description of him in the course of that call for assistance.
[224] The occasion for Ms Gardiner to provide a more detailed description of the circumstances of the assault, including the fact that Mr Doerr had shaved his head, first arose when police attended Villa 1 in response to the triple zero call. Ms Gardiner's evidence was that she told police about Mr Doerr having a shaved head as soon as they arrived at Villa 1.[46]
[225] That was one of several matters which Ms Gardiner was challenged with in cross-examination for not having mentioned in the triple zero call or in her police statement and which she responded to by saying that she had raised those matters with police on the day of the assault.[47]
[226] There was only one occasion that Ms Gardiner's evidence that she informed police of a matter not mentioned in her statement was (perhaps inadvertently) tested in the cross-examination of one of the police witnesses. On that occasion, Officer Cross confirmed by reference to his field notes that Ms Gardiner had informed him that all items brought to the scene by the assailant were repackaged in a separate bag and taken away from Villa 1.[48] In my view, that independent evidence significantly diminishes the weight of Mr Doerr's attack on Ms Gardiner's credit.
[227] Other challenges to Ms Gardiner's credit were equally ineffective.
[228] On one occasion, in response to a question about why she was unable to see the assailant's eyes, Ms Gardiner explained that the man appeared to have difficulty seeing through the small eye slit in the masks because he kept stopping to adjust the outer mask. When it was suggested to her, wrongly, that it was the first occasion she had said that Ms Gardiner responded by stating that this was addressed in her police statement.[49]
[229] Mr Doerr submitted that the failure to call evidence from a police witness to, in effect, corroborate Ms Gardiner's claim about contemporaneous reporting of these various matters supports an inference that the police witness would not have assisted Ms Gardiner.[50] That submission was made with reference to Ms Gardiner's evidence in chief that she informed Sergeant Chris Hurley about the assailant having pinched her nose during the assault.[51] It is true that Officer Hurley was not called to give evidence at the trial to confirm that particular aspect of Ms Gardiner's evidence. However, that is readily explained by the fact that the cross-examination of Ms Gardiner on the subject of her nose being pinched did not extend to an assertion that she gave false evidence about having informed Officer Hurley of that matter.[52] The criticism was plainly misconceived.
[230] In any event, Mr Doerr's criticisms of Ms Gardiner's credit based on the absence of details in her earlier accounts of the incident or other differences between those earlier accounts and her evidence at trial[53] ignore her distressed state on the day of the assault. Each of Mrs Dunn, Officer Mustafa and Dr Love confirmed Ms Gardiner's evidence about her mental state that day.
[231] In that respect, Ms Gardiner relied upon observations made by Stable J in Pearce v Nominal Defendant (Qld)[54] about the limits on the capacity of a person subject to a traumatic event to accurately express the jumbled impressions of the event and the need to bear this difficulty in mind when assessing what might appear to be faults in that person's recollection. In my view, there is much force in the submission that Mr Doerr's criticism of Ms Gardiner's account pays little, if any, regard to the traumatic nature of the assault she suffered.
[232] In the end, I do not regard the differences between Ms Gardiner's evidence at trial and the account she gave to the triple zero operator or in her police statement, considered individually or together, to be of such significance as to lead me to form an adverse view of Ms Gardiner's credit on the question whether the home invasion and assault occurred.
[233] Further, Ms Gardiner's account of the home invasion and assault is consistent with relevant physical evidence. Given the way the trial was run, that physical evidence is only explained if Ms Gardiner's account is accepted.
[234] First, there are the physical injuries Ms Gardiner suffered. These injuries were documented in photographs taken by Officer Cross.[55] They were also identified by Dr Love during his examination of Ms Gardiner on the evening of 10 December 2013 and again the following day.[56]
[235] During cross-examination, Mr Doerr's counsel attempted to put a suggestion to Ms Gardiner that she had inflicted those injuries upon herself. An objection to that question was made, and allowed, on the basis that Mr Doerr had not pleaded a case that Ms Gardiner fabricated evidence of the assault.[57]
[236] In responding to that objection, Mr Doerr's counsel initially sought to rely upon paragraph 30 of the third further amended defence which is in the following terms:
[249] Again, such evidence as there is of Ms Gardiner having attended social functions does not alter my conclusion as to the occurrence of the assault or the diagnosis of Ms Gardiner's psychological disorder following the assault.
[250] In the end, on the evidence before me, Ms Gardiner's diagnosed psychological disorder is only explained by her evidence of the assault. There is no evidence that the disorder might have been caused in some other way. I find that Ms Gardiner's Post-Traumatic Stress Disorder was caused by the home invasion and assault.
[251] Thirdly, there is the presence of the piece of latex located by Officer Cross during his examination of the lounge room at Villa 1 on 10 December 2013, and the subsequent analysis of that item which indicated the maximum likely contribution of Mr Doerr's DNA to the mixed profile obtained from the piece of latex.
[252] Mr Doerr gave evidence about his use of latex gloves when undertaking work outside Villa 1 and where those gloves were stored.[72] However, Mr Doerr was clear in his cross-examination that he did not take used latex gloves inside Villa 1.[73]
[253] In closing argument, Mr Doerr's counsel submitted that it was open for me to find that Ms Gardiner placed latex from a glove used by Mr Doerr in the lounge room of Villa 1.[74] That is despite Mr Doerr having elected not to seek to amend his defence to plead a case that Ms Gardiner fabricated evidence of the assault. There was plainly no basis for such a submission. After Mr Doerr elected not to seek to amend his defence it was not, and could not be, put to Ms Gardiner that she placed latex from a glove used by Mr Doerr into the lounge room of Villa 1.
[254] Consequently, there was no evidence which might explain the presence of that piece of latex in the lounge room other than Ms Gardiner's evidence of the assault.
[255] I do not accept Mr Doerr's submission[75] that various aspects of Ms Gardiner's description of the assault mean it is inherently unlikely the event occurred.
[256] A submission that the assailant would not have had time to gather a garbage bag and fill a plastic container with liquid before he was seen by Ms Gardiner and ran over to stifle her scream[76] was founded on a mischaracterisation of the evidence. The submission was premised upon the sliding sound which woke Ms Gardiner having been made by the assailant sliding across the kitchen bench upon entry through the louvres. The difficulty with the submission is that there was no evidence that this was the cause of the sound which woke Ms Gardiner. Her evidence was that she did not see what made the sliding sound. She did not see the assailant sliding across the kitchen bench and so did not accept the suggestion put in cross-examination that this was the cause of the sliding sound.[77]
[257] Mr Doerr's submissions concerning the liquid in the plastic container, Ms Gardiner's account of her attempts to capture footage of Mr Doerr and her failure to identify Mr Doerr at an earlier point during the assault all ignore the frightening nature of the assault and the distress it caused to Ms Gardiner.
[258] As to the absence of Mr Doerr's fingerprints on the louvre panes, there was no evidence that Mr Doerr, by holding the louvre panes in the manner Ms Gardiner described, would necessarily have left fingerprints. Officer Cross' evidence was that the louvre panes were a surface that would possibly retain fingerprints,[78] but in my view that evidence does not warrant Mr Doerr's description of the lack of fingerprint evidence as "a very glaring absence in the forensic evidence."[79] As Ms Rika explained in connection with efforts to obtain a DNA profile, the absence of evidence is not evidence of absence.[80]
[259] The same applies to the submission about the absence of Mr Doerr's fingerprints or DNA on the plastic cup on the dining table and plastic bags in the sink. In any event, the weight of that submission is further diminished in circumstances where the plastic bags were not tested for fingerprints and neither the plastic cup nor the plastic bags were tested for the presence of DNA.
[260] As to the position of items on the kitchen bench and outside the kitchen window, a submission attacking Ms Gardiner's credit because she was unable to explain why a tea towel on the kitchen bench in front of the louvre window was not dislodged in the process of the assailant gaining entry[81] was, again, founded on a mischaracterisation of the evidence. The photographic evidence[82] established that the tea towel was in front of the window during the police examination on the morning of 10 December 2013. There was no evidence that the tea towel was in that position before the home invasion and assault occurred. Although Ms Gardiner said in cross-examination that she did not recall putting the tea towel in that position she did not accept the suggestion that it was there when she fell asleep the evening prior to the assault.[83] None of the other items identified by Mr Doerr obstruct access through the kitchen window so as to render Ms Gardiner's account inherently unlikely.
[274] In his defence in this proceeding, Mr Doerr pleaded that the security camera system suffered a technical malfunction in the relevant period, as it had many times prior to 9 December 2013. That was alleged to have been the result of water damage caused to the system in early 2012. Mr Doerr pleaded that the proceeds of the insurance claim made in respect of the water damage were used to pay a tax bill rather than the repair or replacement of the security camera system.
[275] Mr Doerr gave evidence about this water damage and the subsequent insurance claim. His evidence was that the computers were replaced.[90] However, despite the replacement of this equipment the security camera system was not fully operational. From time to time three or four of the cameras would turn off. The faults with those cameras would subsequently fix themselves.[91]
[276] This evidence was given in general terms without specifying any period when the security cameras had turned off. Mr Doerr's evidence was that he was not aware that the security camera system had ceased recording on the evening of 9 December 2013.[92]
[277] This evidence given by Mr Doerr is, in my view, of little assistance. The problem with the security camera system he described, namely individual cameras failing from time to time before coming back on, is different and provides no explanation for the failure of the computer to record any security camera footage in the period identified by Officer Burge. The failure of the computer to record footage from any of the cameras during the relevant period was the result of power to the computer being off.[93]
[278] Mr Doerr's father, Peter Doerr, gave broadly similar evidence about the insurance claim, including the replacement of all three of the computers used in the Allsafe office. He was unable to say whether any of the computers that were replaced were linked to the security cameras.[94] He gave no evidence about any malfunction of the security camera system prior to 9 December 2013.
[279] In addition to evidence about the effect of water damage on the security camera system, Mr Doerr sought to impugn the evidence of Officer Burge on the basis that he could not discount the possibility that a failure of the computer to shutdown properly on 6 November 2013 had led to a failure to record footage from the security cameras on that date. Mr Doerr argued that Officer Burge's evidence about continuous recording of security footage on an hourly basis from 7 October 2013 until 9 pm on 9 December 2013 was, perhaps, not correct. This suggestion was never clearly put to Officer Burge.[95] Even if it was to be assumed that there was one prior failure to record footage in the period addressed by Officer Burge's evidence, that would do little in my view to undermine the effect of that evidence.
[280] Mr Doerr also relied upon the fact that there was a security camera in the Allsafe office area where the computer which recorded the security camera footage was located, and the lack of evidence of any attempt to view footage from this camera to ascertain whether Mr Doerr could be observed in the vicinity of the computer around the time of the commencement of the failure to record or the recommencement of recording.
[281] The difficulty with this submission is that there was no evidence that this particular camera was working immediately prior to the relevant period or immediately after the commencement of recording. Mr Doerr could not give such evidence because he said he had nothing to do with the security camera system from about March 2013.[96] Peter Doerr did not know whether that particular camera was operating in December 2013.[97]
[282] In the end, neither the evidence of Mr Doerr and Peter Doerr concerning the damage to the security camera system nor Mr Doerr's criticism about the absence of evidence from the camera covering the Allspace office addresses in any way the coincidence between the timing of the failure to record security camera footage and the occurrence of the assault and, most particularly, the consistency in timing referred to in [273] above.
[283] In the face of Ms Gardiner's identification of Mr Doerr as the assailant and the supporting coincidental matters I have referred to, I do not accept Mr Doerr's denials that he was present at Villa 1 when the assault occurred or that he was the person who committed the assault.
[284] In particular, I do not accept Mr Doerr's evidence that he woke Xavier at the manager's residence at Allsafe before 6 am. As already noted, that suggestion is inconsistent with Xavier's evidence, including his statements during his police interviews. Whatever Xavier's feelings towards Mr Doerr might be now, there is no sensible reason to think that a 12 year old boy would fail to tell police about a conversation said to have occurred at the very time the assault was concluding and which, if it had occurred, would prove that Mr Doerr could not have committed the assault in the manner described by Ms Gardiner.
[294] Finally, Ms Gardiner submits that an uplift of the ISV should be made from 6 to 7 to take account of the physical injuries she suffered during the assault. I do not accept that submission.
[295] The items of Sch 4 relevant to Ms Gardiner's physical injuries all have an ISV range of 0 to 5.[103] Further, item 124 of Sch 4 contains a comment that an ISV at or near the bottom of the range will be appropriate if there are soft tissue injuries, lacerations, abrasions and contusions, from which the injured person will fully or almost fully recover. Having regard to the description of Ms Gardiner's injuries given by Dr Love,[104] I am not persuaded that any further uplift of the ISV I have assessed for Ms Gardiner's psychological injury is warranted to take account of the physical injuries she suffered.
[296] Having assessed an ISV of 6 for the dominant injury, by reference to Table 5 in Sch 7 of the CL Reg, I calculate general damages in the amount of $8,410. There can be no interest awarded on these general damages.[105]
[311] Ms Gardiner's evidence about her reduced ability to perform her work duties was supported by the medical evidence. The evidence of Dr Mulholland,[107] Dr Larder,[108] Mr Perros (a psychologist called by Mr Doerr),[109] and Dr Fritzon[110] is that Ms Gardiner suffered impairment of cognitive functioning associated with concentration and memory as a result of her psychological injury.
[312] In 2015, the insurance agents at Coast Wide ceased providing advice as representatives of Millennium3 and became authorised representatives of Certus Life Pty Ltd (Certus Life), a member of the PSC Group. Ms Gardiner was unable to attend to the matters required to transition from Millennium3 to Certus Life which included transferring hard copy client files onto an electronic database. Ms Gardiner eventually transferred from Millennium3 to Certus Life in 2017.
[313] At around that time, Ms Gardiner ceased conducting her business through Caitlin Services. Instead, she conducted the business through a company called Averse to Risk Pty Ltd as trustee for the Flametree Trust.
[314] In October 2021, Ms Gardiner ceased providing advice as an authorised representative of Certus Life and became an authorised representative of Sharpkey Pty Ltd. In about June 2022, Ms Gardiner became an authorised representative of Sustainable Life Solutions Pty Ltd. This involved a change from the "full advice" business model Ms Gardiner had previously used to a "general advice" model under which she was prevented from giving advice tailored to clients' personal circumstances.
[315] The main reason for this change was that, in February 2020, due to the impact of her psychological injury on her concentration and memory, Ms Gardiner failed to pass an examination overseen by the Financial Adviser Standard and Ethics Authority (FASEA).[111] Although the time allowed for financial advisers to pass the FASEA exam was extended, Ms Gardiner made the decision that she would not continue to try to meet that requirement.[112] This meant she did not meet the education and training standards required of a person authorised to provide personal advice under an Australian financial services licence.[113]
[316] Ms Gardiner gave evidence in broad terms that the change to a "general advice" model has limited the opportunities she now has to grow her client base and the value of commissions earned from existing clients, but without providing any detail about that issue.[114]
[317] I am satisfied that Ms Gardiner suffered a loss of earnings because of her psychological injury.
[318] The amount of Ms Gardiner's economic loss was addressed in a report provided by Michael Lee, a forensic accountant.[115] That report replaced several earlier reports which Mr Lee had prepared, but which were not tendered. Mr Lee acknowledged that the amounts he calculated do not represent Ms Gardiner's actual economic loss, but instead provide a range of scenarios, based upon his exercise of professional judgment, to assist the court in assessing that loss.[116]
[319] Mr Lee analysed Ms Gardiner's income for the period from the year ended 30 June 2010 to the year ended 30 June 2021.[117] This showed that in the year the assault occurred, Ms Gardiner earned taxable income of $189,785. Since that time her income has increased. In the year ended 30 June 2020 her income was $324,242. In the year ended 30 June 2021 her income was $302,579.
[320] Mr Doerr relied upon that increase to submit that no loss of earnings had been demonstrated by Ms Gardiner.
[321] I do not accept that submission. As Mr Lee explained when he gave evidence, in circumstances where Ms Gardiner earned personal income which did not necessarily reflect the income generated by her work as an insurance agent in a specified period,[118] an assessment of her economic loss should focus on the earnings of Ms Gardiner's business and not her combined sources of personal income.[119]
[322] Mr Lee's assessment of the gross income of the business showed decreased income after the year ended 30 June 2014.[120] That analysis involved consideration of:
[328] Further, the scenarios adopted in Mr Lee's final report are based upon greater annual loss of gross income than he used in previous analyses. In addition to Mr Lee's final report, Ms Gardiner tendered a page containing Table 10 from his first report.[128] That table shows the most conservative scenario adopted by Mr Lee at that earlier time involved a maximum annual reduction in gross income of $40,000 whereas the upper-range assessment was based on a maximum annual reduction in gross income of $100,000. This is in contrast with the range of maximum annual reduction in gross income figures Mr Lee adopted in his final report ($100,000 at the lower end up to $160,000 at the upper end).[129] The reason for this change was not addressed in Mr Lee's evidence.
[329] For these reasons, I adopt Mr Lee's lower-range assessment of the reduction in gross income for the period to 31 October 2021 from his final report, a figure of $252,428.
[330] Mr Lee separately assessed Ms Gardiner's economic loss for the period from 1 November 2021 to 22 August 2022 on alternate bases. The first was an assessment of the reduction in the gross income of the business as he had done for the period to 31 October 2021. The second was based on a reduction in earning capacity approach. Mr Lee explained that this second methodology took into account the possibility that Ms Gardiner's reduced capacity as a result of her psychological injuries might not result in any ongoing reduction in gross income for the business in the future.[130]
[331] Mr Lee calculated the loss based on the reduction in the gross income of the business under Scenario 1 to be $63,287.[131] He calculated the loss under the second methodology based on the reduction in Ms Gardiner's earning capacity to be $26,528.[132]
[332] Three matters lead me to conclude that the amount awarded in respect of Ms Gardiner's economic loss for the period from 1 November 2021 up to the date of judgment should be less than the amount calculated by Mr Lee under Scenario 1.
[333] First, statements made by Ms Gardiner to Dr Larder suggest that her failure on the FASEA exam was more due to her unfamiliarity with the material that was tested than the impact of her psychological injury. Although she stated that when she failed the exam she "absolutely panicked, froze" she went on to explain to Dr Larder:[133]
[338] I am conscious of Mr Lee's evidence as to the lag between when work is performed in the business and income is received (particularly in the form of trailing commissions) which makes it inappropriate to assess Ms Gardiner's loss based on a simple comparison of the income of the business in the period immediately prior to the assault with the period immediately following the assault.[139] There might also be a similar lag in the effect on the business of the change from the "full advice" model to the "general advice" model in October 2021.
[339] Nevertheless, the matters I have just addressed lead me to conclude that Ms Gardiner's economic loss in the period from 1 November 2021 should be assessed on the basis that the gross reduction in the income of the business was less than Mr Lee adopted for the purposes of his calculation under Scenario 1.
[340] In all the circumstances, it seems appropriate to discount the figure calculated by Mr Lee under Scenario 1 by 40%. This gives a figure of $37,972, which is between the two figures calculated by Mr Lee described in [331] above.
[341] On that basis, I award damages for past economic loss of $358,123, comprising:
[373] Ms Gardiner submits that aggravated damages in the amount of $100,000 should be awarded. Her written submissions referred to two cases: Bulsey v State of Queensland[167] and P v R.[168]
[374] Bulsey was a case involving wrongful arrest during a dawn raid by armed police and the subsequent unlawful detention of one of the plaintiffs for a further two days in police custody. On appeal from the dismissal of the claim, the first plaintiff was awarded total damages of $165,000. This comprised damages of $60,000 for assault, battery and false imprisonment during the wrongful arrest and $100,000 for false imprisonment after the wrongful arrest, plus general damages of $5,000 for personal injury. The sums of $60,000 and $100,000 were both described as "including aggravated damages".[169] The second plaintiff, who was present during the wrongful arrest, was awarded damages of $70,000. No specific reference to aggravated damages was made in relation to that award.
[375] P v R was a case involving multiple instances of sexual assault on an eight year old child committed over a period of approximately six months and where the defendant's conduct in the defence to the claim had a significantly detrimental impact on the plaintiff.
[376] Ms Gardiner submitted that the violent nature of the assault on her and its protracted timing is more analogous to the circumstances of Bulsey than those in P v R. On that basis, she submitted that the award in this case should fall between the two awards made in Bulsey.
[377] The difficulty with that submission is that it is not clear from the judgments in Bulsey that the amounts of $160,000 and $70,000 awarded to the plaintiffs in that case comprised only aggravated damages.
[378] In the end, I am not satisfied that the circumstances of this case warrant an award of aggravated damages in an amount substantially higher than the $50,000 awarded in P v R.
[379] I will award aggravated damages in the amount of $50,000.
[380] Interest at a rate of 4%[170] from 10 December 2013 (8.8 years) is $17,600.