Gersbach v Gersbach

Onus of Proof

1. Because of the nature of the allegations made by her, senior counsel for the plaintiff accepted in his opening that, although the proceedings are civil, and the onus of proof is one on the balance of probabilities, the Court needs to reach a state of reasonable satisfaction having regard to the factors mentioned in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.
2. In Briginshaw, Dixon J said at 362: "The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences."
3. In M v M [1988] HCA 68; (1988) 166 CLR 69, a decision which centred upon proof of an allegation of sexual abuse, the High Court of Australia in a unanimous judgment said at pp.76 - 77: "In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw … [Dixon J's] remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute."
4. Having regard to contemporaneous events and knowledge about the occurrence in the community and in family settings of child sexual abuse, it would not be appropriate to categorise accounts of such conduct as being inherently unlikely, as Dixon J did in 1938.
5. This common law position is now reflected in s 140 of the Evidence Act 1995 (NSW).

Removal of Limitation Period

1. It is convenient to note that, despite the time which is passed since the events the subject of this claim are said to have occurred, the plaintiff is not statute-barred by any limitation period in the bringing of her claim.
2. The removal of limitation periods for child abuse actions occurred in 2016 by the enactment of the Limitation Amendment (Child Abuse) Act 2016, which took effect from 17 March 2016.
3. That amending Act introduced s 6A of the Limitation Act 1969 (NSW), which is in the following form: "6A No limitation period for child abuse actions (1) An action for damages that relates to the death of or personal injury to a person resulting from an act or omission that constitutes child abuse of the person may be brought at any time and is not subject to any limitation period under this Act despite any other provision of this Act. (2) In this section, child abuse means any of the following perpetrated against a person when the person is under 18 years of age: (a) sexual abuse, (b) serious physical abuse, (c) any other abuse (connected abuse) perpetrated in connection with sexual abuse or serious physical abuse of the person (whether or not the connected abuse was perpetrated by the person who perpetrated the sexual abuse or serious physical abuse). (3) To remove doubt, connected abuse is child abuse only if both the connected abuse and the sexual abuse or serious physical abuse in connection with which it is perpetrated are perpetrated when the person is under 18 years of age. (4) This section applies regardless of whether the claim for damages is brought in tort, in contract, under statute or otherwise. (5) …. (6) …."
4. Clause 9 of Schedule 1 of the Limitation Amendment (Child Abuse) Act provides that s 6A applies retrospectively - that is, that it extends to a cause of action that arose before the commencement of that section. It further provides that s 6A applies "… whether or not any limitation period previously applying to the cause of action has expired".
5. The plaintiff claims that the defendant inflicted both sexual abuse and serious physical abuse upon her when she was aged under 18 years. Therefore, her claims, save for one alleged assault which will be addressed below, fall within s 6A.

The Gersbach Family

1. The defendant, Rodney Gersbach, was born in 1956. He worked as a member of NSW Fire Brigade for many years. In December 1994, he was admitted as a solicitor. He continued in a role with the NSW Fire Brigade for a few years after his admission. He then commenced practice on his own account as a solicitor. He practised from his home.
2. Mr Gersbach's long-term partner (regularly referred to as his wife although they are not actually married) and the plaintiff's mother, is Ms Julie O'Brien, who was born in 1960. She commenced living with the defendant in 1982. They separated in 2016 although they continue to live in the same house.
3. The plaintiff is the first-born daughter of Mr Gersbach and Ms O'Brien. She was born in May 1983. She is now 35 years old.
4. There are two more daughters of Mr Gersbach and Ms O'Brien. Their second daughter, Kate Gersbach ("Kate"), was born in 1987 and is now about 31 years old, their youngest daughter, Hayley Gersbach ("Hayley), was born in 1990 and is about 28 years old.
5. Not long after the plaintiff was born, she moved in 1985 with her parents to a newly constructed villa at Macquarie Fields. They lived there until 1989, or perhaps 1990.
6. During the time that the Gersbach family lived at Macquarie Fields, the plaintiff attended preschool, and then kindergarten at East Hills Public School. It was while the family was living at Macquarie Fields that the plaintiff alleges she was first sexually assaulted at the age of three or four by her father.
7. During the time they lived at Macquarie Fields, Mr Gersbach and Ms O'Brien had a period of separation in their relationship, which was for less than a year. Ms O'Brien, together with the plaintiff and Kate, moved to a flat provided by the Housing Commission of NSW on the Old Princes Highway at Engadine. It will be convenient to refer to this as the "Engadine flat". Ms O'Brien and the children moved in about 1989 or 1990, when the plaintiff was six or seven years old.
8. The Engadine flat consisted of two bedrooms and was quite small. Initially, Ms O'Brien, the plaintiff and Kate lived there. Mr Gersbach lived in his father's house in Revesby. Over time, the relationship of Mr Gersbach and Ms O'Brien was repaired. Mr Gersbach visited the family at the Engadine flat and on some occasions stayed overnight until, in due course, he and Ms O'Brien resumed living there together as a family.
9. Hayley was born while the family was living at the Engadine flat. In that flat, Ms O'Brien occupied one bedroom, in which there was also a cot for Hayley. There were bunk beds in the other bedroom which were used by the plaintiff and her sister, Kate.
10. Whilst she was living in the Engadine flat, in 1989, the plaintiff was enrolled in Year 1 at Engadine Central Public School.
11. In 1993, Mr Gersbach and Ms O'Brien purchased a three-bedroom house in Lantana Road in Engadine ("Lantana Road"). Ms O'Brien described the house as "… very compact, very small …". When the family moved there, Mr Gersbach and Ms O'Brien occupied one bedroom, and the plaintiff and her sister Kate occupied another. They slept in double bunk beds. The plaintiff slept on the top bunk. Hayley slept alone in another bedroom. These bedroom arrangements continued for some years. They changed, initially when the plaintiff moved into her own bedroom whilst her sisters shared a room, and then again when a detached garage was converted into an additional bedroom and the plaintiff moved out there. Her two sisters then occupied separate bedrooms in the house.
12. After moving to Lantana Road, the plaintiff continued to attend Engadine Central Public School. In 1995, she commenced high school at Engadine High School. Because she was teased there, she transferred in that year to Heathcote High School. She completed her schooling to the end of Year 12 at Heathcote High School, although she did not successfully complete her final Higher School Certificate examinations.
13. The plaintiff alleges that whilst she lived at Macquarie Fields, the Engadine flat, and at Lantana Road, she was assaulted, sexually and physically, by her father.
14. For reasons, and in circumstances which will become apparent, the plaintiff's employment history has been significantly disrupted. After leaving school, she worked in a number of places as a dental assistant which was her most consistent vocation. At other times, she seems to have worked in various retail and administrative roles. For a period she was a sex worker in a number of brothels. She is not presently employed.
15. Kate is a qualified hairdresser and works near Newcastle. She no longer lives at home in Lantana Road. Hayley is a qualified beautician who at the time of the hearing of the proceedings was still living at Lantana Road with her parents.
16. The plaintiff is the mother of a daughter who was born in 2014. She does not presently have the full-time care of this child.

The Plaintiff's Case

1. As earlier indicated, the plaintiff claims damages from her father for assaults, both sexual and physical, which commenced when she was three or four years old at Macquarie Fields, and continued regularly until she was about 14 years old. She alleges that a further sexual assault was committed by her father upon her when she was 19 years old. Whilst the evidence of this assault was led as part of the evidence in support of her claim, because the plaintiff was older than 18 at the time of that assault, it was not one which falls within the ambit of s 6A of the Limitation Act. Therefore, as these proceedings were commenced after the limitation period in respect of that assault had expired, the plaintiff does not include this assault as a part of her claim for damages.
2. The plaintiff's claim can, for convenience, be considered as having three components. The first is her claim that on a number of separate occasions, each of which she now says that she specifically recalls, she was sexually assaulted by the defendant. The second component of her claim is that she was regularly sexually assaulted by the defendant, usually at night, and usually in her bedroom. She does not have a clear or distinct memory of these assaults that is sufficient to enable her to recall specifically any one occasion. She says, in effect, that the defendant engaged in a course of conduct which meant that he sexually assaulted her at will. The third component of the plaintiff's claim is that, whilst in primary school and in her early years of high school until she was about 14 years old, she was physically beaten by the defendant on her bare buttocks with a leather belt, whilst she was bent over a bed.
3. The plaintiff's case is that she did not complain about the defendant's conduct at any time to anyone until she was about 19 years old. Even then, she says that it took another four or five years, during which time she had extensive therapy and counselling, before she could recall, and reveal, accurately what she alleges had occurred to her. She says that she had repressed her memories of the abuse, and that memories of that abuse first emerged in a flashback which occurred whilst she was having sex with her then boyfriend.
4. The plaintiff has been diagnosed as having a borderline personality disorder ("BPD"). She also has a diagnosed eating disorder - bulimia. She has, since she was about 16 years old, been a heavy user of alcohol, often binge drinking to such an extent that she passed out. At about that time, the plaintiff commenced using illicit drugs. She initially used marijuana, and has since then used a number of other drugs, including crystal methamphetamine ("Ice").
5. The plaintiff claims that the consequence of these psychiatric disorders is that she has had a completely disrupted life and that she will require ongoing therapy for an indefinite period. She also says that her employment has been intermittent and that she has not, and cannot now, develop her full economic potential. The plaintiff's claim is that all of these consequences derive from and were caused by the defendant's conduct towards her.
6. In addition to compensatory damages, the plaintiff claims aggravated and exemplary damages.
7. In his opening, senior counsel for the plaintiff submitted that the Court's tasks of assessing the plaintiff's case would be a difficult one. He informed the Court that histories given by the plaintiff had been given reluctantly and were often confused. He submitted that this was not unexpected, and that the plaintiff's case depended upon these histories "… in a very big way …".
8. In his final written submissions, senior counsel for the plaintiff submitted that the Court should accept the plaintiff's account of the sexual and physical abuse which it was said was supported by: "1. Consistency in her complaint once it had become clear to her what happened. 2. The suffering of [BPD] which is consistent with child sexual assault and physical abuse. 3. The lack of anything other than what she speaks of to explain the [BPD]."
9. The plaintiff's written submissions made it plain that the case for the plaintiff was that the defendant and Ms O'Brien had given false evidence in claiming that the plaintiff had a normal happy life in her teenage years, and that they were caring parents. It was also put that their denials of sexual and physical abuse were also false. It follows from this submission that their evidence must have been knowingly false on these matters.
10. In his final oral submissions, senior counsel for the plaintiff put the plaintiff's case in this way: "The cases that I make on behalf of the plaintiff, and my learned friend makes on behalf of the defendant, are starkly different, because in our case, we are saying that credibility of the plaintiff is established not just by what she says, but by all the supporting psychiatric evidence and psychological evidence, and by the fact that from well before the time she saw Mr Griffiths [a sexual assault counsellor], she was complaining to people, to police, to the Victims Compensation Tribunal, to the Attorney-General, and to various people, practitioners of various types and to Sutherland Hospital. In our submission, the credibility is made out by … considering what she says … herself, and the support that is given in all this material."

The Defendant's Case

1. Mr Gersbach denies absolutely that he sexually or physically assaulted the plaintiff in the way she claims. Mr Gersbach says that the plaintiff's claimed memories of sexual assaults are entirely untrue. Put differently, he says that they are false memories which may, he accepts, be genuinely held by the plaintiff. Nevertheless, his case is that those memories are false and are not a true reflection of any facts which occurred.
2. He accepts that he did administer corporal punishment to the plaintiff including by the occasional use of a leather belt while she was in primary school, but says that it was reasonably administered. He says that it was not administered in the way that the plaintiff claims, or as often as she claims.
3. The defendant's denials are supported by evidence given by Ms O'Brien, and by his two daughters Kate and Hayley. Of this evidence, the plaintiff submitted that both the defendant and Ms O'Brien were telling lies intentionally, so as to avoid admitting the commission of criminal offences by each of them.
4. The plaintiff did not submit that Kate and Hayley were intentionally lying to the Court but, rather, that their evidence was insufficient to be preferred to that of the plaintiff.
5. The defendant also submitted that the plaintiff's evidence was beset by inconsistencies which were so numerous and so significant that they demonstrated her evidence to be unreliable and unable to be accepted by the Court. He also submitted that the plaintiff's evidence of the specific sexual assaults is uncorroborated and, where it could be corroborated, such corroboration was not forthcoming.
6. The defendant relies upon the fact that the evidence of his daughters Kate and Hayley corroborate in a material respect his evidence as to the manner by which, and how frequently, he administered corporal punishment. He says that there is no reason to suppose that he would have applied a different method, with significantly different frequency, to only one of his three daughters.
7. The defendant does not dispute that the plaintiff has a BPD and an eating disorder. To the extent that the plaintiff claims that the existence of her BPD demonstrates that the sexual assaults took place, the defendant submitted that there is evidence of the other causal factors and conditions which are more than sufficient to have caused, and which explain the existence of that disorder.
8. To the extent that the defendant submits that the plaintiff's memories are false, he does not rely upon the existence of any diagnosable psychiatric condition of the kind described in evidence as a false memory syndrome. Rather, the defendant points to the phenomenon often observed in courts of law of a person honestly giving an account of facts which is shown to be erroneous.
9. In light of the issues raised, it is necessary to set out in this judgment the account given by the plaintiff, the range of histories and the expert evidence before coming to a resolution of those issues. Not every history given can be specifically referred to, but each one has been carefully read and considered.

Limitation on the Use of Some Evidence

1. It is necessary to record at the outset of this judgment the basis upon which a significant amount of the evidence about the occurrence of the claimed physical and sexual assaults, and their first recall, was admitted.
2. The plaintiff tendered as part of her case many hospital and counselling records, records of complaints to police and the Victims Compensation Tribunal, her own diary notes and musings and, finally, reports of experts qualified for the purpose of giving evidence in the proceedings. The defendant also tendered reports of a qualified psychiatrist. As well, the expert psychologists and psychiatrists gave evidence in the course of the trial by reference to, and on the basis of, a history given to them by the plaintiff, or a history to be drawn from documents given to them, such as counselling records and the like, about the assaults, and how they came to be first recalled.
3. Section 60 of the Evidence Act has the effect that such evidence which is relied upon variously as evidence of a complaint being made, or as a history given to experts for counselling and treatment purposes, or else to enable the formation of an expert opinion to be given in evidence, would be also evidence of the fact stated. In other words, where the plaintiff told a counsellor that she had been sexually abused, s 60 had the effect that this was evidence that she had been, in fact, sexually abused.
4. All such evidence about the occurrence of assaults and their first recall was the subject of a limitation imposed by the Court pursuant to s 136 of the Evidence Act, that such evidence was not to be used as any evidence of the truth of the facts stated but, rather, could only be used for the non-hearsay purpose or purposes, namely that the history was given at a particular time and that it was either consistent or inconsistent with other evidence in the proceedings, including other previous representations and the direct evidence of the plaintiff herself.
5. This limitation of use under s 136 of the Evidence Act was formulated after submissions from senior counsel for the plaintiff made it clear that the plaintiff was only seeking to rely on the evidence of the assaults and the circumstances of their first being recalled, to demonstrate that the particular statements were made, the time at which they were made and the person to whom they were made.
6. Senior counsel for the plaintiff submitted that it was not the plaintiff's intention to: "… establish the truth of every individual fact, because some of these are contradictory facts. But we want to establish that she said these things at those particular times and that's why they've been tendered."
7. To the extent that this evidence is referred to in this judgment, it is necessary to keep that limitation in mind. However, the limitation did not apply to other facts and matters given in the course of previous representations.

Plaintiff's History Prior to Leaving School

1. It is convenient now to review some of the relevant features of the plaintiff's history prior to the commencement of her relationship at about the age of 19 with a boyfriend named Rabih (I note that there are various spellings of this name in the exhibits - this is the one which I will use). This history does not include reference to any of the episodes of sexual assault or physical assault relied upon because they were first disclosed after this period.
2. In primary school, the plaintiff did quite well academically - there was no suggestion of any learning difficulties. She participated in athletics and did so at a reasonably high standard. She was a champion athlete of her school and competed at Zone and Regional events. During this period, the defendant was working full-time - sometimes on shift work - with the NSW Fire Brigade. Ms O'Brien was not working and was engaged full-time looking after the children.
3. Although for some part of this period the defendant and Ms O'Brien were separated, I am satisfied that the defendant visited the Engadine flat and continued to interact with Ms O'Brien and his daughters. As I have said, he restored his relationship with Ms O'Brien.
4. The plaintiff initially attended Engadine High School after graduating from Engadine Central Public School. However it appears that she did not enjoy her time there. In the first half of Year 7, her first year at the school, it became apparent that the plaintiff was being teased about her physical appearance. She had red hair and freckles. She was teased about those features. The teasing greatly upset her. The plaintiff said in evidence that she did not have any friends at that time. Such was the effect upon her of this teasing, that one morning when her mother drove her to school, the plaintiff refused to get out of the car and enter the classroom. Her mother drove her home. Both her mother and her father separately spoke to senior staff at the school. As a result, a decision was made to remove the plaintiff from Engadine High School, and enrol her at Heathcote High School. This happened midway through 1995 when the plaintiff was a little over 12 years old.
5. The plaintiff then attended Heathcote High School until her HSC. Her academic performance was quite good. There is no specific evidence about her earlier years, but in her trial HSC examinations the plaintiff did very well in English, General Studies and Hospitality.
6. Whilst in Year 12, the plaintiff had a boyfriend (not Rabih) whom she described as her first love, and felt that she was very much in love with him. Shortly prior to the final HSC examinations, she broke up with that boyfriend. She reacted very emotionally to the breakup and became quite distraught. Such was her emotional state that when she went into the final HSC examinations she could do nothing other than record her name on the exam paper but not complete the exam in any other way. On any view, this was an extreme reaction to this relationship breakdown.
7. The plaintiff agreed with counsel for the defendant that she went from being a reasonably happy girl before the breakup with her boyfriend, to one who became emotionally distraught and extremely depressed. She also agreed that her depression got worse and worse over time, as a result of this event, and that her weight increased.
8. Whilst the defendant and Ms O'Brien thought that their family life and the plaintiff's upbringing was a relatively normal one, the plaintiff did not see it that way. The plaintiff said that she started drinking alcohol at 14 of 15 years of age. She drank heavily a lot on the weekends. As a teenager she funded the purchase of alcohol from money either given to her, or else stolen by her, from the defendant.
9. By around the age of 15, she had commenced skipping school. Deirdre Coote, a dietician, recorded in a report dated 5 October 1998, that the plaintiff, who was then 15 years old, had skipped school on 14 August 1998 and that the Police had been involved. Ms Coote recorded that Ms O'Brien "… was upset that Jayne could not discuss her problems with her or Mr Gersbach…". Ms Coote recorded that there were "obvious signs of tension" between the plaintiff and her parents, and that the plaintiff was "particularly critical of her father", but did not elaborate.
10. Ms Coote also recorded that the plaintiff disclosed to her symptoms of an eating disorder, namely forced vomiting (also called purging) and laxative abuse. The plaintiff had also undertaken a rapid weight loss program, and when she lost weight was pleased with her appearance. This behaviour had occurred at about the time that the plaintiff "… had noticed boys". Ms Coote thought that the plaintiff had become entrapped in the beginnings of an eating disorder.
11. In her cross-examination, the plaintiff agreed that at about the age of 13 or 14, she had become concerned about her weight. It was that ongoing concern about her weight and her eating habits which, she accepted, led to her parents taking her to see Ms Coote. Whenever she visited Ms Coote, she spoke to her alone. Her parents were not in the consultation room.
12. Ms Coote recorded parental concern about the breakdown in the relationship between the plaintiff and her parents. The plaintiff felt unable to tell parents about her bingeing behaviour - namely overeating and bingeing, followed by purging.
13. I accept that these reports of Ms Coote accurately recorded the history which she was given of the events at that time. I am also satisfied that the history reflects the facts as they occurred. The history of concealed purging is corroborated by an event of which the defendant gave evidence about finding the remnants of food, vomited into a sink at Lantana Road shortly after an evening meal. The plaintiff denied to her parents that she was responsible for that occurrence. Having regard to the denials of responsibility for this episode by the plaintiff's sisters, and their respective ages at the time, I am well satisfied that the plaintiff was responsible for this episode, and that her sisters were not. She clearly lied to her parents at that time about this episode and her behaviour.
14. Of particular importance in the two reports of Ms Coote, both written in 1998 when the plaintiff was 15 years old, are these facts and circumstances: 1. the plaintiff clearly had an anxiety condition about her weight. Ms O'Brien did not feel there was any problem in this respect. There was evidently tension between these views; 2. by the time of the consultations with Ms Coote, the plaintiff was quite "… entrapped in the beginnings of an eating disorder"; 3. there had been a breakdown in relations between the plaintiff and her parents of a kind sufficient to persuade Ms Coote that a family session (with her) was necessary; 4. the plaintiff reported to Ms Coote that she had gone to a party (or perhaps parties) without telling her parents, thereby abusing the trust which her parents had placed in her not to do so; 5. Ms Coote was concerned that the plaintiff was not "reaching out" to her parents for advice, often about trivial matters, but was rather contacting Ms Coote to seek that advice; and 6. Ms Coote interpreted these calls for advice as being "… a desperate cry for help" by the plaintiff in circumstances where she did not feel that the plaintiff's parents were giving any commitment in support of the plaintiff.
15. Clearly, whatever are the present views of Mr Gersbach and Ms O'Brien about their historic family relationship with the plaintiff, an independent observer had formed a quite different conclusion. The plaintiff seemed to have no difficulty communicating with Ms Coote, and confiding in her a variety of personal matters.
16. I prefer the evidence of Ms Coote about the state of the relationship between the plaintiff and her parents during this period in 1998 to any other evidence. I accept its accuracy. Ms Coote recorded her views contemporaneously and was an independent and objective observer concerned to understand what the causes of the eating disorder were that she thought was developing in the plaintiff. For that reason I'm satisfied that she would have recorded accurately the facts and matters of which she was informed, and her observations, perceptions of and conclusions about the relationship.
17. At that time, I am satisfied that the plaintiff did not have a satisfactory relationship with her parents. She did not trust them to ask for advice, including about trivial matters. She was not prepared to comply with their directions about her own behaviour. She did not always attend school as she was required to do. The plaintiff obviously felt that she had been effectively abandoned by her parents and needed to seek help outside of the family. This conclusion is relevant to the later consideration of the plaintiff's psychiatric history.
18. I note that there was no reference made by the plaintiff in the course of her consultations with Ms Coote to being the victim of sexual assault. Having regard to Ms Coote's expertise, i.e. a dietician, I do not regard the absence of any complaint as being of any relevance in the determination of whether the assaults occurred as claimed by the plaintiff. It may not have been out of place for the plaintiff, but it would not be expected of her, to have made such a disclosure in the course of discussing her eating disorder and relationship with her parents.
19. According to the plaintiff, by the time she developed her eating disorder, she hated her father because she thought that he was curtailing her enjoyment of life by the discipline he was imposing upon her. She regarded him as a very strict disciplinarian and thought that he was very critical of her behaviour.
20. The plaintiff gave evidence that she ran away from home and went to Wyong. The plaintiff said that she was about 14 or 15 years old when this happened. She stayed away from home for a couple of nights with a family she had met whilst holidaying with her parents at a caravan park. She said that after a telephone conversation with her father, which took place whilst she was at Wyong, she returned home. She denied any further episodes of running away from home whilst she was at school. In the account of both the defendant and Ms O'Brien about this event, both said that it happened in 1999 when the plaintiff was 16 years old. They each recounted the plaintiff's admission to them that she had run away to Windang, south of Wollongong, to be with a boy whom she had met whilst staying at the caravan park in Windang during family holidays. She told her parents, whom she first contacted from Central Railway upon her return, that she had sexual intercourse with the boy.
21. I prefer the account of this episode given by the defendant and Ms O'Brien to that recounted by the plaintiff. The caravan park at which the Gersbach family took its occasional holidays was situated in Windang. It is likely that the plaintiff became friends there with a boy who lived locally. As well, having regard to the history given to Ms Coote, recorded at [64] above, and the absence of any police involvement in this episode of running away from home, it is most likely that this episode happened after the consultation with Ms Coote, who was not given any specific history of this event. That also suggests that the event happened much closer to the age of 16 rather than the age of 14 or 15 as described by the plaintiff. I also accept that having regard to what the plaintiff said to her parents about what occurred when she was with the boy she was to meet, it is unlikely that the parents would mistake the detail or fail to remember it quite clearly.
22. The significance to be drawn from any acceptance of the parents' account of this event is that it is an example of an event of some significance in the life of the plaintiff when she was in her mid-teens and of which her recollection is inaccurate and unreliable. In particular, the areas of Wyong and Windang are in opposite geographical directions from the plaintiff's home. And the difference between meeting her parents upon her return at Central Station, as opposed to her father driving to collect her, are not features of the plaintiff's account of events which are reconcilable with a clear or accurate memory of this episode.
23. This episode serves to reinforce the conclusion which Ms Coote expressed about the plaintiff's relationship with her parents, and as well, the findings which I have made about the relationship.

History at Sutherland Hospital, Meridian Clinic and Central Sydney Area Health Service Before 2006

1. On 10 September 2002, when she was 19 years old, the plaintiff presented the Emergency Department at Sutherland Hospital in the early hours of that morning. She had deliberately slashed her left arm with a pair of scissors. She informed the Emergency Department that she was then being treated for depression. She also told them that she had a background of bulimia for six years.
2. It appears that she had deliberately attempted to harm herself after an argument with her boyfriend, Rabih. The plaintiff informed the hospital that she felt unable to cope and did not know what to do and decided to self-harm. When examined in the Emergency Department, there were 10 lacerations on her forearm. Her parents had taken her to hospital.
3. She expressed remorse and regret at her actions to the staff at the hospital. She denied any formed suicidal intention either at that time or any previous occasions. However she did disclose that she had had several moments of contemplating standing in front of a train but had no formalised plan to give effect to those thoughts.
4. The plaintiff's presentation was discussed with a mental health team at the hospital, who formed the view that it was appropriate for her to be discharged home under the supervision of her parents. She was asked to return for further consultation.
5. Whilst she was being assessed at Sutherland Hospital on 12 September 2002, an intern psychologist undertook a comprehensive assessment, and recorded the findings in a lengthy document with standard headings. Under one of the headings "Abuse/Exploitation", where there is provision for a sexual history to be recorded, the psychology intern wrote: "No reported sexual abuse. However CT [client] has been subjected to inappropriate situations of a sexual nature: see Development."
6. At that time the plaintiff gave a history of physical abuse by her father of her and her mother in the past. The note was expanded under the heading "Development". It says "CT [client] reports that she recalls number of events that were difficult to cope with: - feels mother favours youngest daughter - heard father talking to mother and coercion into sex - saw photographs of her mother tied up, naked, distressed by father - approached father, he replied 'I don't regret doing it, but I regret that you saw the photos' - father had an affair with mother's best friend - finds pornography around the house."
7. She gave this relationship history: "Has unstable relationships with peers, boyfriend, parents and previous co-workers. Was ostracised at school by peers and consequently had to change schools from Engadine to Heathcote High. Client states that she 'hates' father. Client reports suffering from emotional and physical abuse by father. Reports a background of emotional invalidation by parents."
8. I am satisfied that these reports by the plaintiff to the intern psychologist, who is likely having regard to his position and the purpose of this consultation to have accurately recorded what he was told, accurately reflect her feelings and her perceptions of her family relationship at that time. Her reports of the events described are largely, although not entirely, corroborated by other evidence. This description, including in particular the background of emotional invalidation of the plaintiff by her parents, is of significance in later consideration of the expert opinions.
9. As part of follow-up investigations by the hospital, on 13 September 2002, a registered nurse received a phone call from Dr Michael Kohn with whom the plaintiff had been consulting. Dr Kohn described himself as a paediatrician who specialised in eating disorders of young people. He told the nurse that he had seen the plaintiff on two occasions. The nurse also recorded that Dr Kohn had told him that there was a counsellor, Vicky Ruhfus, a specialist in eating disorders at the Meridian Clinic, who had been present during his consultations. The plaintiff was encouraged to resume her consultations with Dr Kohn.
10. The following day, on 14 September 2002, Ms O'Brien telephoned the hospital on behalf of the plaintiff. She asked that the clinical nurse specialist, I assume in the mental health team, speak with the plaintiff. The plaintiff was put on the phone and reported that she had seen her ex-boyfriend on the previous Friday night. She reported that her boyfriend would not return any phone calls. The nurse made this note of their conversation: "… she cut herself last night with a knife/scissors, broken skin but is not as deep as the other ones. Client states she doesn't feel like doing anything. Client states 'having thoughts to end it all' and 'doesn't want to be here'. Client unable to guarantee safety but nil plan of suicide. Client describes that she cuts herself to 'take the pain away'".
11. The plaintiff was asked to return to the Emergency Department at Sutherland Hospital for review, which she did.
12. She was reviewed by a psychiatrist later on 14 September. Although the content of this consultation was not dealt with explicitly in the oral evidence, the Psychiatric Registrar made at a very full and, I am satisfied, accurate note of what he was told in the consultation. It is apparent from that note that: 1. the plaintiff had been in a relationship with her boyfriend for about 10 months. The boyfriend was Rabih, who was a Muslim. Her parents did not like him as her boyfriend; 2. the relationship between Rabih and the plaintiff was volatile, and verbally abusive; 3. she gave a history of past depression, bulimia nervosa and anxiety about low self-esteem, regarding herself as being fat and ugly; 4. the plaintiff's past social history was recorded as: "Un-recalled childhood. She says she's too tired to think about it. Mother and father separated when she was five years old. Got back together a few years ago." 1. of her boyfriend she said: "Her present BF, Rabih, is the best. She wants him back. Their relationship on and off. Frequent break up because of petty problems. … They have sexual relationship on a regular basis." 1. upon a mental state examination, the plaintiff was able to give a full and comprehensive account of herself. She was cooperative, spoke in a normal manner which was both relevant and comprehensible. Her mood was depressed. She expressed a number of suicidal ideations.
13. Apparently at the end of the consultation, the plaintiff and Ms O'Brien sought permission from the hospital staff to eat at the hospital cafeteria which was granted. They did not return as they had been asked to. In a later phone call, Ms O'Brien informed the Psychiatric Registrar that the plaintiff would not come back to the hospital and that she declined to be admitted. Her mother said that the plaintiff preferred to remain at home.
14. Included in the history given to the Psychiatric Registrar, was an event said to have happened four days prior to the consultation. The Registrar's note records this: "4 days prior to consult, the patient went to the pub with father and some of her friends. She took six glasses of hard liquor which made her tipsy. She called her BF [boyfriend] to inform him that she will kill herself that night. She inflicted slashes on her R arm while she locked herself in her room. The distraught parents bought her back to [emergency department]."
15. This account seems to refer to the events immediately prior to the plaintiff's first attendance at Sutherland Hospital on 10 September 2002.
16. At no time during any of her visits to Sutherland Hospital in September 2002, or in any of her consultations over that period, did the plaintiff disclose any history of sexual abuse at the hands of her father as a young child, or at any other time, although she disclosed one event which in evidence she described as occurring at the same time as, or else contemporaneously with, one of the specific episodes of sexual assault. The plaintiff accepted that by the time she attended Sutherland Hospital she had already experienced a flashback, discussed in more detail later, as a result of which she had become aware of the episodes of sexual assault upon her, by the defendant.
17. A few days later, on 17 September 2002, the plaintiff again harmed herself. She was brought by her father to the Emergency Department at Sutherland Hospital. She gave a history on that occasion of a relationship breakdown with her boyfriend. She said that she felt upset, rejected and unloved. She told the Psychiatric Registrar that she had been cutting herself on a daily basis over the last few days. She had done so impulsively and it temporarily relieved her emotional tension. She did it, she told him, to escape from stressors. She did not further specify what those stressors were, although it is clear that the relationship breakdown with Rabih was one of those.
18. The Registrar noted that the plaintiff had been made by her family to move from the external bedroom in the converted garage into the house, and that there had been arguments over her lifestyle and her attempts to re‑contact her boyfriend. The Registrar noted that the parents were struggling to find a balance between over-protection because of their concern for the plaintiff's safety, and encouraging autonomy and responsibility in the plaintiff.
19. Upon assessment, it was observed that the plaintiff was preoccupied with reconciliation with her former boyfriend. It would appear from what she said that she had rejected his culture and this had led in part to the breakup. She said that she was looking forward to a planned trip away from home with her family for a few days respite. In discussion with her parents and the plaintiff, a plan was formulated to assist the plaintiff's ongoing psychological state.
20. The notes record a series of subsequent and ongoing telephone calls between staff of the mental health team at the Sutherland Hospital and the plaintiff. It appears from the notes taken of the contents of these calls that in about late September or early October the plaintiff moved out from her parents' house and went to live with her grandparents in the Revesby area. Contact ceased with the mental health team at Sutherland Hospital in early October 2002.
21. On 11 September 2002, Dr Michael Kohn, an adolescent paediatrician, wrote a report to the plaintiff's general practitioner with respect to a recent consultation, the date of which was unclear. In it he said: "Jayne has struggled with an eating disorder over the last five years. Initially she had a restrictive eating pattern which developed into abstinence and binge/purge cycles. … Jayne's low mood and loss of appetite regulation is accompanied by frequent and obsessional thoughts with respect to food. Jayne's parents found out about her bulimia one month ago. Despite the family history of domestic violence and alcoholism, Rod and Julie are supportive of treatment for their daughter's eating disorder. Jayne is also in a peer relationship with Rabih. This is the first serious relationship since the breakup with her 'first love' prior to her HSC. Jayne's presentation has become further complicated following a recent episode of self-harm … Her current distress coincides with a breakdown in her current relationship and disclosures about her eating disorder and previous abuse during an initial consultation with Ms Ruhfus, a counsellor in the Meridian Clinic. … I look forward to continuing to liaise with Jayne and her parents to support management of both Jayne's mood and eating disorders."
22. The evidence did not address the term "previous abuse" which was used by Dr Kohn in this report, no detail was given orally of what was being referred to, and it is simply not possible to draw any specific conclusion from the phrase about what it was that Dr Kohn was referring to. As Dr Kohn (who was not called as a witness) was referring to a consultation at which he was not present, caution needs to be exercised to avoid speculation about what he was referring to. No notes have been tendered which recorded the primary consultation at that time with Ms Ruhfus, a counsellor at the Meridian Clinic. Ms Ruhfus was not called as a witness. No explanation was given for her absence from the proceedings. The plaintiff did not give evidence about what she had said to Ms Ruhfus (or Dr Kohn) during this consultation. It is not possible to, and I do not, conclude that the plaintiff made any complaint to Ms Ruhfus that the defendant had sexually abused her.
23. As well, it is curious that Dr Kohn would record that the defendant and Ms O'Brien only found out about the plaintiff's bulimia in August 2002. No doubt this was what the plaintiff told him. But, as Ms Coote's reports show, the plaintiff's parents had been aware for many years of the plaintiff's eating disorder.
24. On 26 February 2003, the plaintiff again presented to the Sutherland Hospital with a history of deliberate self-harm. When first seen at the Emergency Department at the Hospital, she described that two days earlier she had cut her wrists. She gave a history to the attending doctor of having been pregnant to her boyfriend, which pregnancy had been terminated at 20 weeks. The note continued: "? Previous sexual abuse when intoxicated. Doesn't get along with father → wouldn't go into detail. Previous eating disorder [about] age 14. … Broke up with boyfriend again / heated argument Monday 2/7 ago → went to Woolworths, stole scissors, slashed left wrist with suicide intent."
25. On examination, there were both superficial cuts to her wrist and a deep 2cm cut through the fascia. She required sutures. A question arose as to whether she needed to be admitted perhaps as an involuntary patient.
26. This recorded history containing the reference to possible sexual abuse is the first direct record in evidence of a history given by the plaintiff that she had been the victim of sexual abuse. She was then almost 20 years old.
27. Three observations may be made: first, in the history given by the plaintiff there is a link between the abuse having occurred whilst she was intoxicated (which excludes it being a reference to the abuse which she says occurred up to when she was 14 years old); secondly, her memory of the abuse seems, at best, to be a tentative one, accompanied by doubt and a lack of any detail including the name or any description of the perpetrator, although the next line of the note suggests that her father may possibly have had something to do with that sexual abuse - but, if he did, no connection was made by the plaintiff whilst giving this history; thirdly, the history which she gave was in one respect, to her knowledge incorrect.
28. The respect in which this history was false to her knowledge was that the plaintiff denied to the doctor any past history of illicit substance abuse, whereas on her evidence, by that time she was accustomed to using illicit drugs such as marijuana.
29. Shortly after this initial consultation in the Emergency Department, she was seen by a member of the psychiatric team by way of psychiatric triage. The following was recorded: "Presenting problem and situation Denies actively suicidal. CX: 7/12 ago was last time [before] this time, and 3-4 days ago. Bulimia - seen him 1x, had abortion to b/f 7/12 ago. Was having dreams re childhood issues? Sexual abuse - unsure - don't want to think about it. At the time [relationship] probs + [increased] ETOH → attempts kill self. Last 2x were to kill self - needs help - B/f wants to try and sort things out with himself and cope with her. 'I hate myself for everything I've done', 'I lost my parents to ringing [psychics]…'."
30. Again, it should be noted that to the extent that the plaintiff gave a history of sexual abuse during her childhood, the history was one of uncertainty, and an association with dreams of what occurred rather than a clear memory. There was no association between her memories and the fact that the perpetrator was her father.
31. The plaintiff also described symptoms of panic attacks, particularly in response to arguments with her boyfriend or if she felt her boyfriend was rejecting her.
32. Later during that consultation, the plaintiff gave a further history that her father had been physically abusive to her, but that he would not admit such abuse. She said of her father that he "belts the shit out of me". She said he was an alcoholic and that she had family issues which she wished to discuss in private. The evidence does not reveal what those further family issues were, or whether there was any further private discussion.
33. A relatively short time later, on 8 March 2003, the plaintiff again presented at the Sutherland Hospital with a 10cm laceration on the volar side of her left forearm. The volar side is the inside of the forearm which is the same side as the palm of the hand. It required suturing. The records note that she was brought in to the hospital by ambulance from Lantana Road. She was accompanied by her mother. The Psychiatric Registrar had a long consultation with her, and took extensive and detailed notes. It was noted that the plaintiff was living in the converted garage at her parent's house. It was noted that she had presented to the hospital following: "impulsive laceration to left forearm following ongoing arguments and conflicts with ex-boyfriend (Rabih) (on and off relationship past 18 months - currently broke up yesterday)".
34. Ms O'Brien reported to the Psychiatric Registrar that she thought the plaintiff was currently obsessed by a "pathological" attachment to her ex-boyfriend. She said she was constantly calling him up on the phone during both day and night. She had run up a phone bill of $2,000 calling psychic help lines regarding her relationship with her ex-boyfriend. It was recorded that the plaintiff was stealing money to pay for her phone bill. Ultimately, it seems that this telephone bill was paid by the defendant.
35. The plaintiff's relationship with Rabih had apparently come to a head on the previous evening when, having visited his house, she had been told that she was no longer welcome to visit Rabih or his family there. She tried to visit her ex‑boyfriend at work and was told by him that she needed psychological help and that she was no longer to contact him. Apparently she returned home, found a knife and deliberately lacerated her wrist. She had sufficient insight to recognise that her attempts at self-harm were associated with breaking up with her boyfriend and a resumption of their relationship. She said: "Every time I break up I do this to myself - I did it twice previously and he came back."
36. She gave an extensive history to the Psychiatric Registrar of everything in her past which she thought was relevant in answer to the questions she was asked. There was no reference to any past history of sexual abuse. The Registrar concluded that this was a deliberate self-harm attempt of an impulsive kind, secondary to a relationship breakup with her boyfriend and her perception that she had been abandoned and rejected by him. After receiving treatment for her laceration, she was discharged home to be looked after by her mother.
37. Follow up contact occurred with staff of the hospital. In those notes of ongoing care, there is a record of a telephone conversation between Dr Kohn and a clinical nurse supervisor at Sutherland Hospital on 12 March 2003. It reads: "Received phone call from Dr Kohn who saw client and family today. States client engaged well and is agreeable to regular follow up appointments. Will be seeing client in 2 weeks on 2/4/03 and then will see client every 2 [weeks]. Dr Kohn will be focussing on day to day coping strategies and monitoring medication. Dr Kohn feels client could benefit from sexual assault counselling. … Dr Kohn feels ongoing [Acute Care Treatment Term] involvement not further required after linking client with sexual assault services."
38. The staff at the Sutherland Hospital made arrangements for the plaintiff to be seen a few weeks later by the Sexual Assault Service at St George Hospital, which seems to have been a referral consequent upon the recommendation of Dr Kohn in the course of the telephone called referred to in the note. On 13 March 2003, this arrangement was discussed by telephone with the plaintiff. The note of that discussion is as follows: "P/c to client and advised a sexual assault referral to St George Sexual Assault Service."
39. This seems to be the first record of any reference to sexual assault counselling other than the somewhat Delphic reference in the hospital records in February 2003, at [102] above, and the reference in Dr Kohn's letter of 11 September 2002 to "previous abuse".
40. Dr Kohn sent a further report about a consultation with the plaintiff on 12 March 2003. He recorded that it was the first time that he had seen the plaintiff in six months. He recorded the following: "Jayne's principal distress currently arises from anxiety symptoms. She reports perseverative and intrusive thoughts with panic attacks. She is conflicted from her memories about earlier abuse and pregnancy earlier this year. … During today's consultation Jayne was able to contract for safety. She was accompanied by her parents who remain supportive, though clearly there exists an element of tension within their relationships."
41. Dr Kohn was not called to give any evidence in the proceedings. If there had been any concern on his part about any risk that the plaintiff may be subjected to sexual abuse by her father, then the remarks in the second paragraph referred to above would be most surprising. It seems to me to follow that, by this time, Dr Kohn was satisfied that whatever had previously occurred, if anything, he did not need to recommend to the plaintiff, who was his patient, that she remove herself from having any contact with the defendant, or from living with her parents in the family home.
42. The plaintiff was readmitted to Sutherland Hospital for surgical treatment of an infection in her left wrist laceration. She entered the hospital on 19 March 2003, underwent a procedure on that day and a further procedure on 22 March 2003. Her father collected her from the hospital and she was discharged into her parent's care and returned home.
43. In the course of the admission, the plaintiff was seen and assessed by the clinical nurse consultant in psychiatry. The nurse took this additional history: "● known to mental health (ACTT) ● chronic suicidal thoughts ● Hx of 2-3 attempts of cutting wrist in the context of relationship problems and family stress ● eating disorder ● ? sexual abuse ● has a private psychiatrist and counsellor."
44. The report of Dr Kohn of 2 April 2003 casts little further light upon the matter. He recorded that the plaintiff had moved back into her family home and that she was yet to engage in individual counselling which was to be arranged with the assistance of the Sutherland Hospital. He added this comment: "I have continued to encourage Jayne to engage in local counselling around her assault issues and then she'll continue to be supported around her general mood and eating disorder issues with Ms Vicky Ruhfus in the Meridian Clinic."
45. A letter from Dr Kohn of 21 May 2003 is a little more revealing. He said: "Over the last 6 weeks Jayne's mood, eating disorder behaviours and self-harming have continued to be well contained. With her elevation in mood she reports feeling ready to 'return to work'. … … Two destabilising influences in Jayne's life persist. She continues to live at home and experience an acrimonious relationship with her father. She remains angry at his philandering and concern about the possibility that he had sexually abused both Jayne and her sisters. Certainly she reports ongoing verbal abuse by him. The other destabilising influence pertains to Jayne's ex-boyfriend, Ravi [Rabih], who has recontacted her once again. Over the next month, Jayne will continue on Luvox (100mg at night) and look to opportunities for individual and sexual assault counselling…"
46. Three matters ought to be noted about this report. The first is that there is a clear expression of strong dislike by the plaintiff of her father, and a rational reason for that, namely, an allegation of unfaithfulness by him. Secondly, there is an expressed uncertainty, namely, a possibility, that her father had sexually abused her (although not that he had verbally abused her). Thirdly, there is, for the first time, a suggestion that such sexual abuse was also perpetrated by her father upon her two sisters.
47. In a report of 10 December 2003, from the Meridian Clinic, although it is unclear who the author is because the report is unsigned, the following appears: "Jayne is continuing to struggle to find ways to address her memories of earlier sexual abuse and continues to meet diagnostic criteria for bulimia nervosa."
48. In notes prepared by the Central Sydney Area Health Service, there is a reference to history provided on 22 September 2005 which is recorded as an initial contact. The history was taken by a counsellor. The plaintiff was accompanied by a male friend called "Steve". The plaintiff said in evidence that Steve was a boyfriend with whom she used the drug Ice every day for about two months - which seems to have been the entire length of their relationship. It is unclear if she was affected by Ice when she attended at this consultation.
49. The counsellor recorded the following: "Jayne reports that she has memories of being sexually abused by her father from a young age. Recalls masturbating in front of her father after having a bath. Younger sister Hayley was also masturbating. Developed bulimia nervosa from a young age 14 - still current but stable. She has attempted suicide and has a history of self-harm. Father denies CSA and mother refuses to believe Jane."
50. In the evidence of other consultations, the plaintiff did not recount the history given by her on this occasion to anybody else as a part of her history of sexual abuse. Although she apparently had a specific memory of the event, it did not form one of the specific events she relied upon as forming part of her case. She did not give any evidence that she masturbated in front of her father after having a bath, nor did she give any evidence that her younger sister Hayley was also doing the same. Hayley was not cross-examined about this event. In light of the absence of any supporting evidence for those parts of this history, I have concluded that the account of this specific recollection is completely inaccurate.
51. The progress notes made on that day continued with this information: "Jayne states she is fearful that her younger sister Hayley was also sexually abused by their father as she is starting to display same behaviours and eating disorder as Jane. … Jayne normally works as a dental nurse but has lost several positions due to anxiety. … Recently, she was in trouble with the law and fined $4,000. She began working in a massage parlour to try and earn the money quickly. Reports that she would cry and panic before work every day. She wants to now find a job as a dental nurse and keep away from drugs. She was using 'ice' to stay awake at night in the massage parlour. She says that the temptation of easy, quick money is hard to resist but she wants to break that pattern. Expressed some paranoid ideation - it may be drug related. Will go back to GP for assessment re anti-depressant medication and call back if she would like to continue with counselling."
52. It does not appear that there is any further note of a consultation with the Central Sydney Area Health Service before November 2006 when the consultations with Mr Griffiths occurred.

Interaction with Authorities

1. In the period between 2006 and 2011, the plaintiff had a series of interactions with the NSW Police, and also the Victims Compensation Tribunal ("VCT"). Her contact with the NSW Police was motivated by her desire to have her father charged and punished by a term of imprisonment for sexually abusing her as a child. Her motivation in claiming compensation was, I infer from what she wrote, to obtain monetary compensation to enable her to live independently from her parents and cease to be dependent on them, including by staying at the family home.
2. It is appropriate to note what the plaintiff told these authorities, bearing in mind her recorded motivations.
3. On 21 September 2006, the plaintiff, who by this time was 23 years old, attended the Bankstown Police Station late in the evening at about 10.30pm. She went there to report that: "… she believed she had been the victim of physical and sexual abuse between the ages of 4 to 18 years by her father …"
4. The plaintiff reported that: "… she began experiencing 'flashbacks' when she was about 19 years of age whilst having sex with her boyfriend. These flashbacks consisted of her having sex with her father."
5. At this point in time, the plaintiff was only able to give an account of a single particular incident which she says occurred in the converted garage at Lantana Road when she was about 18 years old. According to the Police entry, the plaintiff's memory was unclear. The Police officer recorded: "The victim was unable to be specific about any further incidents. She said she was having a lot of problems determining what was real and what memories were actually dreams."
6. The plaintiff reported to the Police about having concerns with respect to her sisters. She informed the Police that neither of her sisters had ever disclosed any sexual abuse by their father, but that she was of the view that it was occurring.
7. Clearly, the Detective who undertook the interview checked the Police records and noted the following: "The victim was reported as a missing person in 1998 and stated to police at the time that she was having difficulties with her father. … She did not disclose at this time any report of sexual abuse."
8. This seems to be a reference to the event recorded by Ms Coote and described at [64] above.
9. The plaintiff was advised that in order for the Police to be able to take a formal statement from her, she would need to be more specific about each of the incidents of sexual abuse. She told the Police that she would attempt to make a list of the actual incidents.
10. It seems that the next time the plaintiff contacted the Police was just over six months later on 27 April 2007, when she telephoned and informed Sutherland Police that she wished to provide a statement to them. The Police contacted Mr Mark Griffiths, who was then the sexual assault counsellor with whom the plaintiff was consulting. They were advised that Mr Griffiths did not think that the plaintiff was in a position at that time to provide such a statement.
11. On 7 May 2007, the plaintiff attended the Kings Cross Police Station to report a sexual assault perpetrated upon her by her father. She had with her a series of notes, but the Police did not regard them as being adequate to enable a full statement to be taken. The Police noted on this occasion that the notes which they plaintiff brought with her: "… were in no order, detailed a lot of other aspects of the victim's life including party guest lists, weight management issues etc …"
12. The Police also noted that the plaintiff was very vague, and took a long time to answer simple questions about details of the sexual assaults. They also noted that the plaintiff kept referring back to a single incident of sexual assault by her father. The matter was deferred, to be followed up at a later point in time.
13. On 13 July 2007, the plaintiff attended Sutherland Police Station to report that she had further information about the assaults. Again, she was vague about detail and police did not feel able to properly investigate the matter without some greater specificity.
14. On 11 October 2007, the Police received a telephone call from Mr Griffiths, who informed the detectives that he was of the view that the plaintiff: "… is now able to recall up to five specific incidents between the ages of 3-14 years old committed on the victim by her natural father …".
15. On 14 December 2007, the plaintiff attended the Sutherland Police Station by arrangement. She brought with her prepared handwritten notes relating to particular offences. The Police regarded the notes as being vague and having insufficient information for their purposes. The plaintiff was told that she needed to provide greater detail, and was also asked to provide the names of any family members or friends that could provide any form of corroboration with respect to the allegations she was making against her father.
16. There was obviously some further interaction between the plaintiff and the Police because it appears that on 11 March 2008, a statement to be compiled by police was commenced. By 22 March 2008, the plaintiff was informed that the Police had insufficient evidence to charge her father. There seems to have been no further police involvement with the plaintiff and her complaints of sexual assault.
17. In August and September 2006, prior to first attending the Bankstown Police Station, the plaintiff made an application for compensation to the (VCT. In support of that application on 21 November 2006, she made a statutory declaration, in which she declared that she had been sexually assaulted by her father when she was "… a child" and "… a little kid". She gave this account: "The sexual abuse occurred on a regular basis until my teenage years. I have flashbacks of the abuse all the time."
18. She also gave a history of severe physical abuse from around the age of 5 years until she was about 14 years old.
19. In the statutory declaration, she gave an account that she had disclosed the occurrence of the sexual and physical abuse to others. She said: "I had told people that my father was sexually and physically abusing me, but no one was doing anything about it. My mother turned a blind eye all these years. She was always aware of the abuse over all these years. … My own mother disregarded what I was saying… My mother used to tell me, don't tell anyone what happens in this house."
20. In the course of making the application to the VCT for compensation, the plaintiff provided, seemingly to the VCT, what seems to be a diary note written by her on Saturday 18 November 2006. The diary recorded this: "Today was painful. Reading a book I borrowed from Greenacre Library - something The Courage to Heal. I had lots of tears, I could feel deep rooted pain come up through my body. I will never forget the feelings, they are a mixture of controlled anger (if I let it out - it is so strong, I would be known as a complete wacko). I can't think of anything other than a torando inside. Whatever it is, it is not pleasant and I don't like people to see A panic attack! … I hate my father, may he root [scil. rot] in hell. … I want Dad in prison and I want him to tell my mother what he does - (sic)"
21. As earlier recorded, at [135], about two months prior to the plaintiff making this note, and reading the book referred to, she had been quite uncertain about any specific recollection of sexual assaults by her father. She could not determine satisfactorily for herself the difference between any reality and her dreams.
22. The diary note continues with six entries against which there is a star, in which the plaintiff asks herself a number of questions and then underneath, she appears to record an event which occurred at 124 Lantana Road involving her father assaulting her whilst they were both naked.
23. The applicant's claim to the VCT was ultimately unsuccessful. It terminated with a decision of the Assessor of the VCT on 28 November 2011.
24. At the same time as the plaintiff was in contact with both police and the VCT, she was being treated by Mr Mark Griffiths. It is appropriate now to examine the various histories which she gave to Mr Griffiths.

Sexual Assault Counselling with Mr Griffiths

1. Mr Griffiths is a senior psychologist who worked at the relevant time for the CSAHS. Although the plaintiff initially presented there in September 2005, the first note of substance made by Mr Griffiths concerned a consultation with the plaintiff on 24 November 2006. At that stage, little detail was obtained from her about the sexual assaults but, rather, Mr Griffiths was concerned to assist her to work out a strategy to enable her to prioritise the various issues which then existed in her life.
2. The plaintiff returned on 1 December 2006, about two weeks after the diary note set out at [150]. Mr Griffiths' note includes the following: "Jayne says she is finally starting to confront what happened. She told me of a number of incidents and a couple of further details emerged as she told me. These memories were surfacing spontaneously as she spoke, including 'waking up' in the bush with her father. Said she could not have been asleep and was therefore concerned and confused."
3. At that point, the plaintiff informed Mr Griffiths that she thought she may return to the scene of one or more of the incidents "… so she could remember". Mr Griffiths strongly discouraged her from doing that.
4. Mr Griffiths noted that the plaintiff appeared "to disassociate" on a number of occasions during the interview. He described what that meant. He said that there was a "blank stare - immobilised, not speaking". He recorded other details which emerged. Included in that record are statements to the effect that the plaintiff was certain that her mother knew she was being abused and that her mother herself was the victim of physical abuse from the defendant. She gave this account: "• once had a flashback when about to orgasm 'suddenly I saw my father with his head between my legs'. • another time a flashback resulted in her slashing her wrists and being hospitalised at Sutherland Hospital. … • last assault (which involved intercourse) was on a pink bed - remembers focussing on the pink bed rather than what was happening. … • has told a number of friends - many have said 'we always knew something was happening'. "
5. Mr Griffiths noted that the plaintiff was asking a lot of questions of him about her confusion and that at that stage details of her abuse were "tumbling out in a chaotic order".
6. At a consultation on 7 December 2006, the following was recorded: "Miserable at [high school]. Eating disorder started about [age] 14. Came home after school and binged on food. Thinks the sexual abuse was stopping about then. Actively avoided [father] 'I hated him'. [Possibly] before this found porn photos of mother. Told mother and took no action, told father who said 'I don't regret doing it - just regret you seeing them'. Photos looked like mother was drunk. She was naked and tied up."
7. The consultation included also a reference to having a flashback. Although the detail of that is recounted elsewhere, Mr Griffiths noted that, having given an account of the flashback, the plaintiff thought that what she had seen "… explains why dad would come into my room all the time".
8. The plaintiff continued to see Mr Griffiths over a period of some years. A particularly significant consultation occurred on 11 October 2007, that is, nearly a year after she first saw Mr Griffiths. The context for this consultation was that the plaintiff was frustrated that she had not been able to make a police statement, and that she wanted assistance from Mr Griffiths to enable her to do so. Mr Griffiths asked her to outline specific events for which she had a definite memory, and could locate at a particular time. This apparently caused the plaintiff stress and she told Mr Griffiths a couple of times that it was difficult to separate events and instances because the sexual abuse had happened so much.
9. However, Mr Griffiths recorded a series of specific events, and the age at which the plaintiff recalled those events as having occurred. It is these events which largely, but not entirely, form the basis of the plaintiff's claim in these proceedings for specific instances of sexual assault perpetrated upon her by her father.
10. Set out below, in a table, are the assaults which were able to be specifically recalled by the plaintiff during the consultation of 11 October 2007: Incident Age Description Location

11.    3 years   Father performed oral sex on her.                                                                                                                                                                                         At the house in Macquarie Fields.
    

12.    5 years   At home in parents' bed. Father made her touch and lick her mother's genitals.                                                                                                                                            At the units in Engadine.
    

13.    8 years   Had gone to the "bush" with "Ken", though Ken did not witness abuse. This was the first time her father penetrated her anally and she remembers it because of the extreme pain, [and] that the location was in the bush.  In the bush
    

14.    14 years  This time remembers "both naked", he turned her over and asked her "what hole do you want it in?"                                                                                                                         At home in parents' bed [124 Lantana Road]
    

15.    14 years  She woke up to him being on top of her and vaginally penetrating her with his penis. He then flipped her over and did it anal.                                                                                            In the pink bed [124 Lantana Road]
    

1. She went on to give a further general description in the following terms: "More general memories include many times of having his genital area in her face. Him holding her head and his penis against the back of her throat. Also that sometimes he would put a belt around her waist 'and pull it really tight' then bend her over and pull the loose end of the belt and penetrate her from behind."
2. On 26 October 2007, in a further consultation, the plaintiff informed Mr Griffiths that she was not sure if the last episode of sexual abuse was when she was 15 or 19. She also gave an account, which was recorded by Mr Griffiths as follows: "She describes aspects where her father appeared to believe he was in a relationship with Jayne - spoiling her, setting her up against her sisters and even her mother. Jayne was like her mother's competitor. Remembers aspects where the abuse was discussed openly with Jayne being told in front of her mother, that she didn't do it properly and Jayne being in tears asking to be told how to do it."
3. On 9 April 2008, the plaintiff gave the following history to Mr Griffiths: "During statement to detectives, Jayne reports she has now clarified for herself the 'pink bed' episode. And as a result remembered details of another episode. Says abuse in the pink bed (her bed) occurred when she was 15. She had confused it with another episode - last assault she believes, which occurred when she was 19 in her sister's bed. … This time she had been drinking with her father - 'he got me drunk, topping up my drinks'. Says she feels that was the last assault but believes many between ages 15 and 19."
4. The plaintiff ceased to attend for counselling with Mr Griffiths in April 2009 because he left his role. After discussion with the plaintiff, he referred her for further counselling to Ms Turner at the St George Sexual Assault Service.
5. The plaintiff saw Ms Turner during 2009 on a number of occasions. However, there is no note between June 2009 and about April 2011 that indicates that the plaintiff continued to consult a sexual assault counsellor at St George Hospital.
6. The plaintiff first consulted Dr Robert Gordon on 1 May 2014. From that time until the hearing, she consulted with him, and received treatment by way of psychotherapy on a very regular basis. Initially she attended three times a week, and that seems largely to have continued. More recently, the frequency of her visits to Dr Gordon appear to have reduced.
7. Throughout the period that she was consulting with Mr Griffiths, and also whilst consulting with Ms Turner at St George Hospital, the plaintiff continued to consult with and be seen by a number of practitioners with respect to her eating disorder. During that time, she had a disrupted employment history and on many occasions has not stayed in particular positions for very long. Sometimes, this is due to her eating disorder. At other times, the cause of her leaving her employment is unclear.

Flashback of Initial Memory of Abuse

1. It is convenient to describe the plaintiff's accounts, both in and out of court, about a flashback which occurred and caused her to recall previously suppressed memories of episodes of sexual abuse by the defendant.
2. Her evidence in court was that she had no recollection of the occurrence of any sexual abuse by her father at any time prior to the occurrence of a flashback which occurred when she was about 19 years old and whilst in a relationship with Rabih. This initial flashback occurred prior to her first attendance at Sutherland Hospital for treatment for her self-harming behaviour.
3. Dr Gordon gave expert evidence that the occurrence of the flashback was a matter of significant importance. He said that was because it represented the first occasion upon which her memory of the events which had been suppressed commenced to be retrieved by the plaintiff. Because of the importance of this event, it is appropriate to examine the accounts of it carefully.
4. Although written in a report dated 28 March 2007, Dr Eli Weiner, a general practitioner at the Engadine Medical Centre, recounted a history given by the plaintiff during a consultation in January 2005. Dr Weiner recorded that the plaintiff: "… may have been sexually abused by her father at a young age but cannot remember any details. Memories of the abuse were experienced as flashbacks during sexual intercourse."
5. This history refers to more than one flashback.
6. The first flashback was said by the plaintiff to have occurred when she was about 19 years old, namely sometime in 2002. There is no note in any contemporaneous record of any such flashback. The first direct note of the plaintiff is in the compensation application to the VCT.
7. On 27 October 2006, in a letter which the plaintiff wrote to the VCT, she said this: "Rabih Mijazi - I wouldn't mind speaking to him right now. I was having sex with him when I had my first flashback, after that my life it all made sense …"
8. She also described the flashback in this way in her VCT application of 31 May 2006: "I had a flashback during sex with my boyfriend (at the time) of my father between my legs, I was a little girl, he was doing something down there."
9. To Mr Griffiths, on 1 December 2006, she said: "Once had a flashback when about to orgasm suddenly I saw my father with his head between my legs".
10. And in the next consultation on 7 December 2006 with Mr Griffiths she said: "Once when having sex with Rabih, had a flashback to father to giving oral sex to me. Remembers thinking 'I knew something wasn't right, this explains why dad would come into my room all the time'."
11. As can be seen from the recounting of the plaintiff's attendances at Sutherland Hospital and the Meridian Clinic set out above, there were a number of opportunities in 2002 and 2003 for the plaintiff to have recounted the occurrence of the flashback. The nearest any account approaches the issues is the history given in February 2003 which is set out at [107] where she described: "… having dreams re childhood issues. ? sexual abuse - unsure …"
12. However, I could not conclude that what was recorded in this note could be taken to be a description of an important event, such as a "flashback". The history given does suggest that the plaintiff was having dreams about the abuse.
13. On 1 April 2008, Mr Griffiths described multiple flashbacks consistent with Dr Weiner's account of the plaintiff's history. In a letter to Ms Narelle Spinks, a clinical psychologist at the Missenden Psychiatric Unit within Royal Prince Alfred Hospital, Mr Griffiths wrote: "[In 2006] during sessions [the plaintiff] would dissociate, memories of abuse were spontaneously emerging and she complained of experiencing flashbacks."
14. On many occasions after this account, the plaintiff has given histories to doctors and counsellors of having multiple flashbacks which were continuing to occur at least until the history she gave to Dr Marcelo Rodriguez, a psychologist, which is recorded in his report of 5 September 2015.
15. In April 2009, when consulting with the St George sexual assault service, the plaintiff informed them that she recalled episodes of abuse dating from the age of 3 to 19 years, and that her initial memory had been triggered during oral sex with her boyfriend when she recalled her father doing the same.
16. In cross-examination, the plaintiff agreed that prior to this flashback occurring on the first occasion, she had smoked pot (marijuana) shortly before she commenced having sex with Rabih.
17. The oral evidence of the plaintiff was that she recalled a single flashback occurring, as has been described, whilst having sex with Rabih. Her history on a number of different occasions given to a number of different people, suggests that she had more than one flashback, and that multiple flashbacks had been occurring until at least 2015. In light of the expert evidence on this subject, this is a matter of some importance to the reliability and accuracy of her evidence.
18. The other reason why this is of importance is that on many occasions the plaintiff expressed doubt herself about whether her recollections of past sexual assault were accurate and real, or whether they were dreams which she had experienced. Some of her accounts of the occurrences of dreams involving sexual abuse by her father include the following instances reported by others.

Dreams or Reality

1. Ms O'Brien gave evidence of a conversation with the plaintiff which touched upon this issue. She said that she overheard a conversation between Rabih and the plaintiff over the phone in the Lantana Road house, whilst it was on loudspeaker. Soon after the conversation, Ms O'Brien approached the plaintiff and had a conversation with her. Ms O'Brien said: "What is this about Rabih saying you had a dream where you saw your father's face on Rabih whilst having sex with Rabih"? The plaintiff responded "Yeah, I had a dream". Ms O'Brien said "What do you mean", the plaintiff said "it was just a dream … I don't know".
2. Although the plaintiff initially denied this conversation, in the course of cross‑examination, it became clear that she did not remember it occurring, rather than being clear that it did not occur. Ms O'Brien was not challenged on her account of this conversation.
3. The plaintiff's sister, Kate, in her written evidence described a conversation with the plaintiff which seems to have occurred sometime in about 2006. She described the conversation in this way: "When I was 19, I received a telephone call from the plaintiff. She told me that she saw dad's face on Rabih's head while she was having sex with Rabih and that she didn't know if it was real or a dream."
4. Kate also gave written evidence of another conversation, although the date is not clear, when she confronted the plaintiff about her allegations of being sexually assaulted by the defendant. Kate said that the plaintiff responded by saying: "I don't know if it was a dream or if it really happened". Kate was not tested on these conversations during her cross-examination.
5. These conversations were put to the plaintiff during cross-examination. She had no recollection that these conversations occurred.
6. The plaintiff accepted that on a number of occasions, in circumstances where she was seeking to, or else had just returned to, live in the family home at Lantana Road, she told both of her sisters that what she had said about her father sexually assaulting her was untrue. One such occasion was when she told her sisters to "go along with it" so that her father could go to jail, and the plaintiff, her sisters and Ms O'Brien could remain living in the house. The plaintiff agreed that on one occasion she said to her sister, Kate, in reference to the sexual assaults - "Oh, it didn't happen. The psychologist put it in my head". However, in oral evidence which was entirely unconvincing in the way it was given, the plaintiff asserted that her father had told her to say that. That alleged instruction to cover up the truth was not put to the defendant during cross-examination.
7. Hayley gave evidence of a conversation at Lantana Road with the plaintiff at a time after she was first taken to Sutherland Hospital for treatment for cutting her wrists. Hayley confronted the plaintiff and asked her whether she still thought that her father had "molested her". The conversation continued: "Plaintiff: No, I don't think that anymore. Hayley: So what, you don't think he did anything to you? Plaintiff: No."
8. I accept the versions of each of these conversations given by Ms O'Brien, Kate and Hayley. I am satisfied that they are faithfully recounting these conversations which the plaintiff no longer remembers.
9. The question of whether the plaintiff's recollection of the various instances of sexual assault was a dream or reality is a subject which the plaintiff touched upon in her various histories and accounts on a number of other occasions.
10. According to the Police report, in September 2006, the plaintiff said she was having a lot of problems determining what was real and which memories were actually dreams. This is a contemporaneous note made by a police officer whose only purpose in making it was to accurately record what he was being told.
11. As well, the plaintiff accepted in her cross-examination that she had had some difficulties determining what of her recollection was real, and the matters of which she had dreamed. The following exchange took place: "Q. Yes. What I am putting to you is that it was a fact that, in 2006, you were having a lot problems determining what was real and what were dreams? A. Yes. Q. At that time, you didn't know whether you had been sexually assaulted or not, did you? A. I'm not sure. Q. If you were having a lot of problems determining what was real and what was dreams, that suggests you weren't sure in your own mind what had happened to you? A. At that time, that's what it seems like it means. Q. Do you say it was only after you started therapy with Mark Griffiths that you came to believe that you, indeed, had been sexually assaulted? A. Yes."
12. Answers to a similar effect were given later in cross-examination.
13. In light of those answers and the contemporaneous records, I accept, as I have earlier said, that Ms O'Brien, Kate and Hayley are faithfully recording what they were told by the plaintiff. I am satisfied from all of the evidence that up until the plaintiff commenced counselling with Mr Griffiths, as she herself said, she was having difficulty trying to determine whether her recollections were factual or were dreams.
14. This evidence about the conflict between reality and dreams is directly relevant to the plaintiff's evidence about her initial flashback.
15. I am satisfied that, whilst one or more flashbacks occurred as the plaintiff has generally described, at least up until she undertook sexual assault counselling, she was unable to decide whether the flashback (or flashbacks) represented reality or a dream. As well, the description of a "flashback" used by the plaintiff at times seemed to describe dreams she was having.
16. The significance of the confusion in the plaintiff's mind, and hence in her evidence in court, as to whether her recollection prior to counselling could have been dreams or reality is to be found in the following evidence.
17. One principal rule of sexual assault counselling is that the counsellor does not suggest any factual account to a patient being counselled. As Mr Griffiths explained, in all of the counselling which he undertook (not just with the plaintiff), the practice was not to use "leading questions", "prompt questions" which may prompt an answer, "guided imagery" or "hypnosis".
18. As well, Mr Griffiths acknowledged that patients attending for counselling in respect of a history of sexual assault are not referred to books of a self‑help kind until after a period of time, often of months, partly to enable a history of the past abuse to be given without any contamination to that history from what is read in the book. He said that a reference to books was made to assist the recovery of the individual, in particular, to assist such patients to "… normalise their reactions to what is an abnormal situation". Mr Griffiths had no recollection of referring the plaintiff to any book, but he accepted that was something which he did often with his patients.
19. In cross-examination, Mr Griffiths gave this evidence: "Q. Because you are aware, are you not, that there are a number of self-help books that are available to victims of child sexual abuse? A. Yes. Q. You are aware, are you not, of criticism that those self‑help books can sometimes lead to the implantation of false memories? A. Which is why we are fairly careful about the books we choose. Q. One of the books which has attracted the most criticism in that respect is a book called 'The Courage to Heal'? A. Mm-hmm. Q. You accept that, don't you? A. Yes. Q. Because it has been widely reported, to your knowledge, that victims - or persons, I should say - who read that book can often form false memories which are implanted by the suggestions which are made in that book? A. You're saying that is common? Q. Not common, but it certainly has been reported, hasn't it? A. It has been reported, yes. … Q. … But I think the thrust of your evidence just a few moments ago is that you don't refer people to these sorts of self-help books until some months into the program? A. Yes. Q. And that's so there is no risk of some false memory being implanted by reason of reading what is in those self-help books? A. As I said, that's one of the reasons. I - the main reason is that it's important for the person to be able to, in a safe way, be listened to and heard as to, as to what their, their story is. So it's, it's important for them to, in a safe place, be heard, to be able to say what happened, and at that stage generally you, you start looking at strategies to, to help the person recover and sometimes that can involve some reading."
20. Mr Griffiths accepted that there were at least two sources which could potentially feed into the construction of false memories, namely writings and therapist's suggestions.
21. It is convenient to note here that Mr Griffiths accepted that false memory was a phenomenon with which he was familiar. He understood a false memory to be "… where the person is relating a story that didn't actually happen, but the person can believe that it happened …".
22. At a time prior to the plaintiff's account of events becoming a factual reality, it is clear that she had read the book entitled "The Courage to Heal". The plaintiff's own handwritten note in a diary recorded the nature of the book, which can be described as a "self-help" book. The plaintiff's notes of this event are set out in [150]. Mr Griffiths accepted that this book had been reported as being a source for the creation of false memories. I would infer from the notes that the words in the diary were written on the day recorded, namely 18 November 2006.
23. The plaintiff agreed in evidence that in September 2006, when she visited Bankstown Police Station, she was having a lot of problems distinguishing between dreams and reality. By the time she commenced consulting Mr Griffiths, in late November and early December 2006, her description of her partial recollection appears to have become a factual recollection and not dreams.
24. The book named in the plaintiff's note, "Courage to Heal", was not tendered, nor were its contents revealed directly to the Court.
25. However, the contents of the book are described in an article tendered in evidence as Exh 7. The article "The Reality of Repressed Memories" by a psychologist, Elizabeth F Loftus, was published in a reputable peer-reviewed journal "American Psychologist" in May 1993. The article noted that there were at least two sources which can feed into the construction of false memories - popular writings and therapist's suggestions. It recorded this about the book "Courage to Heal", under the subheading "Popular Writings": "All roads on the search for popular writings inevitably lead to one, The Courage to Heal (Bass & Davis, 1988), often referred to as the 'bible' of the incest book industry. The Courage to Heal advertises itself as a guide for women survivors of child sexual abuse. Although the book is undoubtedly a great comfort to the sexual abuse survivors who have been living with their private and painful memories, one cannot help but wonder about its effects on those who have no such memories. Readers who are wondering whether they might be victims of child sexual abuse are provided with a list of possible activities ranging from the relatively benign (eg being held in a way that made them uncomfortable) to the unequivocally abusive (eg being raped or otherwise penetrated). Readers are then told 'If you are unable to remember any specific instances like the ones mentioned above but still have a feeling that something abusive happened to you, it probably did' (p.21). One the next page, the reader is told: You may think you don't have memories, but often as you begin to talk about what you do remember, there emerges a constellation of feelings, reactions and recollections that add up to substantial information. To say, 'I was abused', you don't need the kind of recall that would stand up in a court of law. Often the knowledge that you were abused starts with a tiny feeling, an intuition. … Assume your feelings are valid. So far, no one we've talked to thought she might have been abused, and then later discovered that she hadn't been. The progression always goes the other way, from suspicion to confirmation. If you think you were abused and your life shows the symptoms, then you were. (p.22) What symptoms? The authors list low self-esteem, suicidal or self-destructive thoughts, depression, and sexual dysfunction, among others."
26. Whilst it is not possible to make a definitive finding that the plaintiff's reading of that book was solely responsible for changing her mind about her recollection of being one of dreams to one of factual reality, I am satisfied in the light of her own notes that it was a factor which significantly influenced the certainty of the plaintiff's later recall, the histories which she has given and her evidence as to what had occurred.
27. The ongoing context of the plaintiff's counselling sessions is also important in an understanding of the plaintiff's evidence. Mr Griffiths accepted that it was not part of the function of a professional delivering counselling to forensically examine the truthfulness of the account being given by a patient. Rather, a professional counsellor treats the symptoms with which they are confronted. This is an entirely conventional approach. In circumstances such as these, the effect of that approach is that the plaintiff's recollection, which has not been tested or challenged in any way in the many years of counselling which she has had, becomes more certain and seemingly more definite in the repetition and unfolding to a counsellor of her recollection of events.
28. This unfolding and increasing certainty is apparent from the histories given by the plaintiff over time to Mr Griffiths. This presents as another reason to be cautious about accepting the plaintiff's account. The fundamental issue for this Court is the determination of the truthfulness and accuracy of the account given by the plaintiff in evidence. That issue is entirely different from the issue presented by a patient to a psychologist, such as Mr Griffiths when counselling is being sought. The fact that a court forms an adverse view of accuracy or truthfulness of an individual's account of what occurred does not reflect adversely upon the individual providing counselling. Whilst the counsellor may accept that inconsistency in history does not cause them to doubt the history they are given, and so change their therapeutic approach, a court may be persuaded that the inconsistencies are such as to cast real doubt upon an account. As Mr Griffiths acknowledged, describing the differences in history given as amounting to an inconsistency rather than a normal (and expected) variation, is a matter of fact and degree.

Specific Incidents of Sexual Assault

1. In her final submissions, the plaintiff identified seven specific acts of sexual assault upon which she relied as part of her case. The first two of these were claimed to have occurred whilst she lived at Macquarie Fields. The first sexual assault occurred inside the family home, and the second in a park area near the family home.
2. The next three specific episodes are said to have occurred whilst the plaintiff was living at the Engadine flat. The first such assault occurred in the Royal National Park which was located near the flat. The other two occurred in her parents' bedroom. Those episodes can be identified distinctly because one involved her father using a leather belt as an aid in his assault, and the other was an occasion on which the plaintiff claims her mother was a participant, albeit an unwilling one.
3. The final two identified occasions occurred when the plaintiff was living at Lantana Road. The first of these occurred whilst the plaintiff was at school, and the final assault is said to have occurred after she left school when she was about 19 years old.
4. It is now appropriate to examine the evidence and the out of court accounts about each of the specific incidents which form this part of the plaintiff's case. In so doing I should again record that the out of court accounts given by the plaintiff, and which were contained in documents admitted into evidence, were not admitted as evidence of the truth of the underlying facts but were admitted on the basis that those accounts represented histories or versions given by the plaintiff at the times indicated, and to the persons indicated in the documents, which are available to be used to assess the accuracy of the plaintiff's evidence of these incidents.
5. It is convenient to note here, rather than in the description of each incident, that the defendant denied that any of these incidents occurred.

First Incident - Macquarie Fields

1. In her evidence-in-chief, the plaintiff said that the first incident of sexual assault occurred: 1. when she was about three or four years old; 2. in her father's bedroom, in his bed at Macquarie Fields; 3. at a time when both she and her father were unclothed; and 4. by her father putting "… his penis in my mouth and his fingers, and licked me on my vagina".
2. In cross-examination, the plaintiff told the Court that she first recalled this assault after the flashback which occurred when she was 19 years old.
3. Her accounts to others between 2007 and 2015 contained other details which varied from those given in her sworn evidence. In notes taken by Mr Griffiths in 2007, she described this event as happening at Macquarie Fields, and consisting only of her father performing oral sex on her. In clinical notes of a consultation of 24 June 2009, she described the event as consisting only of her being compelled to perform oral sex on her father. This is a difference of significance which I would not regard as a mere inconsistency.
4. Dr Christopher Canaris, a psychiatrist who saw the plaintiff to express an expert opinion, in his report of 1 September 2014, recorded being given a more detailed and significantly more graphic account by the plaintiff of the immediate physical effects upon her when she was compelled to perform oral sex on her father, than that given in evidence.
5. To Dr Rodriguez, she gave an account of her father using the wall as a support for his movements when she was performing oral sex upon him. This account was also significantly more graphic than that given in court. If this history was accurate, it is surprising that it was not repeated in evidence. The fact that it was not given in evidence casts considerable doubt upon its veracity as a description of what the plaintiff remembers.
6. In his report of May 2015, Dr Gordon recorded that the plaintiff said, with respect to her earliest memory of an assault, that at about the age of four: 1. her father would come into her bedroom whilst she was asleep to sexually assault her; 2. he would perform oral sex upon her whilst she pretended to be asleep; and 3. she complained to her mother about her father's behaviour but was told to keep quiet and not to tell anyone.
7. This last account to Dr Gordon is quite inconsistent with the plaintiff's evidence of this first occasion of sexual assault. Given that the next two occasions of assault occurred whilst she was not inside her house or flat, and at about the ages of five and seven, and were not described in this way or any similar way, there seems to me to be only two possible explanations for the obviously inconsistent account which she gave to Dr Gordon about the first sexual assault.
8. Those explanations are that the plaintiff had attributed an incorrect age to this account of a specific incident of assault, or else she has given her best account, but one which is an unreliable one of the first occasion of this assault.
9. The plaintiff did not give any evidence that she made any complaint to her mother or anyone else about this specific first episode. It was not suggested to Ms O'Brien that any complaint had been made about this episode. The plaintiff did not give any evidence about any of the graphic descriptions of the events given to either Dr Canaris or Dr Rodriguez. In my assessment, these inconsistencies are not minor, but represent significant alteration in the plaintiff's recall of the alleged event.

Second Incident - Macquarie Fields

1. The second specific incident of which the plaintiff gave evidence, had the following features: 1. it had happened whilst she was still living at Macquarie Fields; 2. her father had taken her to a park behind their house, which was near to a creek; 3. prior to the assault, they had walked across the creek, the plaintiff had fallen into the water and had been picked up by her father; 4. she described what occurred as being: "… the same thing [referring to the first assault] except he didn't put his penis in my mouth".
2. She gave a history to Dr Rodriguez that "… her father took her to a park nearby, behind the house in Macquarie Fields, told her to lie on her back and performed oral sex on her".
3. She gave a history to Dr Phillips in 2016 to the following effect: "She has a specific memory of an incident of abuse which occurred in bush adjacent to the family home. She recalled both digital and oral penetration on that occasion".
4. When the plaintiff spoke with Mr Griffiths on 11 October 2007, she did not give any account of this assault in specific terms.
5. The plaintiff left the Macquarie Fields house when she was about six or seven years old, in 1989 or 1990 according to Ms O'Brien.
6. No evidence was elicited from the defendant or Ms O'Brien about the physical surrounds of the house at Macquarie Fields. It is to be expected that either could have corroborated the account of the plaintiff of the existence of a park behind their house, and of a creek in that area.

Third Incident - Engadine Flat

1. The third specific incident upon which the plaintiff relies is one which she says occurred at about the age of 8 whilst she was living at the Engadine flat. That flat was within walking distance of the Royal National Park at Engadine.
2. In her evidence-in-chief, the plaintiff said that she and her father, together with a neighbour whose name she remembered as "Ken", and one or both of his sons, went to the National Park for a walk. She said that at a time after Ken and his son or sons had left them, and she was alone with her father in the bush, that "she had to pull her pants down" although she did not know whether she or her father pulled her pants down. When asked to describe what occurred, she said this: "He tried to put his - well, he put his penis in my bottom a little bit - I don't know enough, yeh."
3. She was asked to, in effect, elaborate on this and she gave this evidence: "Q. He put his penis in your bottom, and how far up your bottom did he get? A. I don't know, but I screamed, it hurt. Q. It hurt? A. Mm. Q. Did he say anything to you about this? A. Yeh, but I - what I - I remember when we were walking back and he said 'It'll be - it'll be alright' or 'it'll go away' or something like that."
4. Mr Griffiths recorded on 28 June 2007 that the extent of the plaintiff's memory at that time was that she remembered being taken into the bush by her father, and that something bad had happened. Given that this account was given about five years after the plaintiff says that her first flashback occurred, it is surprising that she was not able to give a more extensive history of this particularly memorable event.
5. On 11 October 2007, a little over three months later, she told Mr Griffiths that the assault in the National Park was the first time that her father had penetrated her anally, and that she remembered it "… because of the extreme pain". It will be obvious that in this period of a little over three months, the plaintiff's account to Mr Griffiths of the history of this episode has changed quite substantially with respect to the detail of what the plaintiff records the defendant did to her and how she felt.
6. Dr Canaris, in his report of 1 September 2014, recorded a history given about this incident, which generally accorded with what the plaintiff has said in her evidence, except that she related that her father had pulled down her pants. He recorded that she felt a lot of pain unlike anything which she had previously experienced, and that she recalled holding herself around the backside and crying.
7. Dr Rodriguez, in his report of 5 September 2014, recorded a history which was more detailed than that which the plaintiff gave in Court. Having described the assault, the plaintiff told Dr Rodriguez that she remembered that "… it hurt so much that everything went white. All I saw was white". The plaintiff said in evidence, and to Dr Rodriguez, that she did not tell her mother of this particular assault.
8. When giving her account of this event to Dr Rodriguez, the plaintiff described other peripheral features - she said that the day was a sunny one, she thought that it was summer, and that she recalled being sweaty. She also added this history: "I wasn't allowed to tell mum anything. He said that he would kill mum. He said 'no-one is going to believe you'. "
9. The plaintiff did not give evidence consistent with these parts of this history.
10. Given the pain which the plaintiff described in evidence and ongoing soreness in her anal region as she walked, and having regard to the fact that Ms O'Brien was involved as her mother in bathing the plaintiff whilst she was in primary school and getting her dressed, it is to be expected that her mother would have noticed any problems with the way in which the plaintiff walked, or any sign of obvious injury or bruising from an assault of the kind described. Ms O'Brien's evidence was that she did not see any such difficulty or problem in the plaintiff's anal area. The plaintiff made no complaint to her about soreness in her anal area. This evidence was not challenged in cross-examination and I accept it.

Fourth Incident - Engadine Flat

1. The fourth specific episode of abuse which the plaintiff recalls, and relies upon, is said to have occurred at the Engadine flat.
2. In her evidence, the plaintiff said that this assault occurred in her parents' bedroom, whilst she was on the bed. She said the bed did not have a bedhead on it, it was "…just, like a mattress". Her father was present with her in the room and he had a belt around her waist. When asked whether she was clothed or unclothed, she said that she didn't know. She said that her father was putting his penis in and out of her bottom and that she was screaming in pain and that her father was screaming and yelling. She was unable to say how long the assault took, and did not know whether her father said anything at all about it.
3. In October 2007, whilst given an account of her general memories, she told Mr Griffiths, speaking of her father, that: "… sometimes he would put a belt around her waist and pull it really tight then bend her over and pull the loose end of the belt and penetrate her from behind."
4. However, the account given in evidence as a single specific occasion was not identified as such in that history which suggested the conduct was happening on more than one occasion.
5. In May 2016, she described this assault to Dr Phillips as occurring when she was approximately 8 years old in circumstances where her father placed a belt around her abdomen and raped her. She told Dr Phillips that she remembers her father screaming, and that she had a recall of crying.
6. In cross-examination, the plaintiff confirmed that she had no recollection of anyone else being in the room. The flat in which the plaintiff and her mother and sisters lived was described by Ms O'Brien as having two bedrooms. It was a modest size. If any family members were at home at the time, whether in the bedroom or not, then it seems to me to be highly likely that they must have heard what was going on.

Fifth Incident - Engadine Flat

1. The fifth specific incident of abuse again was said to have occurred at the Engadine flat in her parents' bedroom. This incident was said to have involved both the plaintiff's mother and her father.
2. In her evidence-in-chief, the plaintiff described this event which seems to have been a most significant one. She said that her mother and father were present and that it occurred at a time when she was 8 and that she was "little". She gave evidence that her mother was lying on her parents' bed, naked, with her legs open. She described her father as also being present in the room and being naked, and that she was also naked. She said that her father told her to lick her mother's vagina which she did. She gave this evidence: "Q. What did you feel when you did that? A. I didn't really want to, but Mum said 'Rod', then she - I had to do it, I just did it, I had to do it. … Q. Did you mother say anything to you or him? A. Yeah. Q. What did she say? A. She didn't want me to do it. She said -- Q. I'm sorry? A. I can't remember exactly what words she used right now. Q. Anyway, she said she didn't want you to? A. Yeah."
3. Although the plaintiff only recalled this episode after the flashback which has earlier been described, it is an event which she described quite early in the histories given to various practitioners. The plaintiff said in cross-examination that her first recall of the episode was not well after the flashback and was before she was first treated by Mr Griffiths in 2006.
4. On 4 September 2007, she first gave an account to Mr Griffiths where she said that she could recall her father (with her mother's complicity) making her put her fingers into her mother's vagina and then to lick her on her genitals. She told Mr Griffiths that her mother said to her that it was okay. Mr Griffiths described this memory as spontaneously emerging. In the following months, the plaintiff told Mr Griffiths that this event happened when she was aged 5 "and at the units at Engadine". Throughout 2008 and 2009, in giving various accounts to Mr Griffiths, she referred again to this incident in substantially the same way. I note that in the account given to Mr Griffiths, the plaintiff recalled her mother telling her that it was okay to do what she was told. However, the plaintiff's evidence was to the contrary - she said her mother did not want her to do it. In my view, these two accounts cannot be reconciled on that issue and are inconsistent with each other.
5. On 15 April 2013, the plaintiff attended a consultation with Dr Suzanne Burrows, a clinical psychologist to whom the plaintiff had been referred by Dr Paul Lumbewe (a general practitioner) for her depression and anxiety. When referring to this incident, the plaintiff described her mother as being coerced by her father to participate in it. She said that the incident occurred when she was about eight years old, and that she was forced by her father to perform oral sex on her mother. She also said to Dr Burrows that her mother turned a blind eye to the sexual abuse which was happening in the house.
6. Although not directly related to this incident, it is convenient to note here that in the consultation of 15 April 2013, the plaintiff told Dr Burrows that: "At one point, [the plaintiff] said she confronted her dad, calling him a pedophile (sic) and he admitted to molesting boys in football training massages."
7. I note that the plaintiff gave no evidence about her father making such a statement to her, and the contents of the statement was not put to the defendant in the course of cross-examination. Since the content of the statement would have been relevant and probative evidence in these proceedings, it is surprising that it did not form any part of the plaintiff's evidence. I can only conclude that this part of the history given to Dr Burrows was untrue. This conclusion raises some doubt about the accuracy of the whole history given to Dr Burrows.
8. On 6 May 2014, in her second consultation with Dr Gordon, the plaintiff gave a detailed history of this incident with her mother. She said: "Once when I was quite young, he brought me into their bedroom. I was naked. My mother had one arm tied to some cot, I think, and her other arm to the bedhead. Her feet were also tied to each end of the bed. She was naked. He told me to lick her between her legs. I remember feeling terrified and nauseated. She said 'Oh please, no, Rod', but he forced my head between her legs and I had to lick what now I know to be her clitoris. I remember she was crying and I was terrified. I think there was a photograph taken. I think my grandmother saw it."
9. This account of this incident is considerably more detailed and embellished than that given in evidence. The additional features of this account are that the plaintiff's mother was tied up with a detailed description of that manner of typing up; that the defendant forced the plaintiff's head between her mother's legs; that the plaintiff's mother was crying; that a photograph was taken of the incident and that the plaintiff felt nauseated. If the history given to Dr Gordon was an accurate one there is no reason from the perspective of the plaintiff's memory, for that version not to be given in evidence. I conclude that this embellished version of the history is highly unlikely to be accurate. Put differently, I am not satisfied that it is accurate. This conclusion adds considerable weight to the assessment of the overall veracity of the plaintiff.
10. In Dr Rodriguez's report in September 2014, the plaintiff is noted to have given an account of the incident, which included that she remembered the event as being "horrible, the smells. It was strange, it was weird". No other history included any reference to "…the smells…". This is a further embellishment which reinforces my conclusion about the veracity of the plaintiff's account.
11. The plaintiff told Dr Gordon in May 2015 that, in addition to the account which has previously been given, she could recall some photographs being taken of her mother without clothes on, in the presence of the plaintiff who was also in the nude and involved with her father. She told Dr Gordon that she believed that her grandmother had seen the photograph (or perhaps photographs).
12. In a number of histories that she gave to Mr Griffiths and the counsellors at South Eastern Area Health Service, the plaintiff said that this episode occurred when she was either five or approximately five years old. She told Dr Phillips that she was in Year 1 at school, which suggests that she was five or six at the time. The plaintiff told Dr Burrows, and gave evidence that she was eight years old at the time of this event.
13. The defendant denied that he at any time sexually assaulted his daughter. The allegation that he had compelled his daughter to sexually assault her mother was specifically put to him, and the defendant denied it.
14. In her statement, which was tendered, Ms O'Brien described the allegation that she had participated in any sexual activities involving her husband and her daughter as "totally and absolutely false". In her evidence, Ms O'Brien denied that anything fitting the description of this event had occurred. She agreed that, whilst living at the Engadine flat, her daughter had found a number of photographs which had been taken by her husband of her whilst she was naked. They were kept in a drawer in her bedroom. They were found by her daughter when she was about 10. Ms O'Brien said both she and the defendant had a conversation with the plaintiff at a time when the plaintiff appeared to be upset about the content of the photographs. She had been crying. Ms O'Brien and the defendant attempted to counsel the plaintiff not to be upset about the photographs and reassured her that in taking the photographs, they had not done anything wrong.
15. The plaintiff herself did not give any evidence about seeing these photographs. However, as I have described earlier, she had told Dr Gordon that she had seen some photographs taken of her mother in the nude in her presence whilst she was also in the nude. That particular feature of the plaintiff's account was put to Ms O'Brien and she denied it. In cross-examination she maintained her denial.
16. Although in the account given by the plaintiff to Dr Gordon, she said that her belief was that her grandmother had seen the photograph, she did not give evidence of that fact, nor was there any evidence called from her grandmother, which corroborated that history.

Sixth Incident - Lantana Road

1. The sixth specific assault event which the plaintiff recalled occurred at Lantana Road. The plaintiff said that so far as she could recall, she moved to Lantana Road when she was in about Year 5 in primary school. This suggests that she was about 10 or 11 years old. Ms O'Brien gave evidence that the move occurred in 1993, which is the year the plaintiff had her tenth birthday.
2. The plaintiff described Lantana Road as a three bedroom brick house in which her parents occupied one bedroom, and she and her two sisters occupied the other two bedrooms. Ms O'Brien described the Lantana Road house as having three bedrooms, and being "very compact, very small", with gyprock walls on the inside. The walls were described as very thin.
3. In particular, the plaintiff described an incident which occurred during the daytime at Lantana Road when she was perhaps in her early teens. She said that she was engaged in penile/vaginal intercourse with her father in circumstances where both she and her father were naked, on her father's bed and that she was positioned on top of him.
4. Her out of court accounts of this incident, on two occasions, included recounting that her father disclosed to her either during or else after intercourse, that he was 17 years old when he first had a sexual relationship with his then girlfriend or, perhaps, with one of her grandfather's girlfriends.
5. In October 2007, the plaintiff gave an account of this incident to Mr Griffiths, which included her father turning her over and asked "what hole do you want it in?". That statement was not repeated in her evidence or to any other person when the plaintiff was giving an account of this occasion of abuse. It seems to me that this remark would be a memorable one. If it was said, it is surprising that it was not repeated during the plaintiff's evidence.
6. In handwritten notes prepared by her, the plaintiff recorded that this assault occurred on a pink bed inside the Lantana Road property. The plaintiff also used the "pink bed" description in a statement to detectives, to which reference was made by Mr Griffiths in his report of 9 April 2008.
7. No questions were asked of Mr Gersbach, Ms O'Brien or either of the plaintiff's two sisters about whether the bed in the parents' bedroom at Lantana Road was pink, or could be reasonably described as being pink.

Seventh Incident - Lantana Road

1. The final specific assault was said by the plaintiff to have occurred when she was 19.
2. It was made clear by senior counsel for the plaintiff that this episode was not relied upon as forming part of the events which gave rise to a claim for damages, but was relied upon as a part of the overall narrative and context, and as an episode which indicated the tendency of the defendant to conduct himself sexually towards his daughter, consistently with the other assaults. No objection was taken to the evidence being led in this way, or for these purposes.
3. In evidence-in-chief, the plaintiff said that this episode occurred when she was 19 and after she had left high school. She said that she had been drinking at the Engadine Pub with her friend, Tamara Hunt, when the defendant joined them at the hotel. The plaintiff recalled drinking "Lemon Ruskis and that her father was drinking beer, and bourbon or scotch".
4. According to the plaintiff they went home together. She gave this description in answer to various questions: "We were - we were nude - got nude and took - I don't - we were in my room inside the house … It's the first room on the right when you walk down the hall … He asked me to suck his finger, and I did, and I had to go to the kitchen to get a glass of water and there were two white tablets on the bedside that I had to take. … I don't remember much, but he was having [vaginal] sex with me. … and then I tried to like get him, like I like shook and he put his hand around my neck to keep me still, and then I had to turn onto my stomach and I was all like numb. … he raped me anally."
5. The plaintiff said that she had been told by her father to take the two white tablets, and that she did not know what they were.
6. In her evidence, the plaintiff said that this assault occurred in a bedroom in the house at Lantana Road. She said that it was the first room on the right as you walked down the hall.
7. She gave an account of a further incident related to this assault which she said occurred on the following morning. Her evidence was this: "The next morning I woke up and I had a sore bottom, and I was sitting on the lounge and my sister was there, Kate, and he walked in the front door and said to Kate, 'Jayne must love me because she has dreams that we have sex', and I hadn't even spoke a word. But I remember thinking 'what the hell'. "
8. Kate Gersbach was not asked about this remark by the defendant, although she would have been able to corroborate the statement if it was made. As well, the statement, if made, was a circumstance relevant to the proof that the event occurred the night before because it would be seen as an attempt to provide a false story to avoid any complaint being made by the plaintiff.
9. The plaintiff continued to live in the Lantana Road house after this incident. The plaintiff's evidence, and submissions, did not address any reason as to why she remained living in the house with her father who had behaved in this way. She could have sought to live with her grandparents - but did not then do so.
10. In cross-examination, the plaintiff agreed that she knew that what had happened to her on this occasion was a crime, but she did not tell anyone about it prior to the flashback occurring. She made no report to the Police about this occasion. No explanation was given by her about why she did not report the incident promptly (or for the next four years or so) to the Police.
11. In a police record created on 22 September 2006, referring to an account given by the plaintiff to police on the previous day, it is noted that the plaintiff told police that this last assault occurred in the converted garage of the Lantana Road house. When cross-examined about this statement, the plaintiff had no recollection that she had told police of the location of the assault as being in the converted garage. She insisted in evidence that the assault occurred in her bedroom in the house. The evidence suggests that the plaintiff did not move out of the converted garage and back into a bedroom in the house until sometime after her first visit to Sutherland Hospital in September 2002. As well, although she said so in evidence, the plaintiff did not tell the Police that her father had forced her to consume two white tablets.
12. The defendant gave an account of this occasion in his evidence‑in‑chief upon which he was cross-examined. He told the Court that he was at the hotel at Engadine having a drink in the public bar. He saw that the plaintiff was there with some of her friends and went over to greet them. He formed the impression from looking at the plaintiff that she had taken drugs. He gave this evidence as to what occurred: "I didn't know what to do with her but she - she introduced me to her friend Tamara Hunt, … She said to me 'Dad, Tamara's been sexually assaulted too' and I thought, well, that's a strange thing to say, I said 'That's terrible'. I think I had one or two drinks with them but I wasn't with them very long. She said to me 'Dad, I've got a headache' and I said 'Well you know, would you like me to take you - take you home?' I think - I think it was while we were in the pub that I said to her, 'I'll give you a couple of Panadols' and we went home and I gave her a couple of Panadols and she went to sleep out in the granny flat."
13. He said that that was the full extent of what occurred on that day, and he repeated that he had never sexually assaulted his daughter. In cross‑examination, the defendant said that he and his daughter entered the house together and he gave her the Panadol tablets whilst they were in the house, and then his daughter left and went to the granny flat. He said he did not go into the granny flat at any stage.
14. In an account given to Mr Griffiths on 22 December 2006, the plaintiff said that she was confused "… that the assaults may have continued until she was 19". She said to Mr Griffiths that "… her father told her that she had dreamt last night that we had sex. She is worried that this did happen or that he may have drugged her". On a number of further occasions she described having a degree of confusion about this particular event.
15. In April 2008, she told Mr Griffiths that the final assault, when she was 19, occurred in her sister's bed and that her father had got her drunk. She also denied telling her father that she had a headache. The plaintiff's evidence did not contain any suggestion that her father had got her drunk, prior to the assault occurring.
16. Dr Rodriguez was asked about one part of the history given to him by the plaintiff with respect to the final specific event, namely, the occasion when the plaintiff said her father assaulted her when she was 19 years old after returning home from the Engadine Tavern.
17. The history addressed the issue of the plaintiff's memory and recall of the events of sexual abuse. In her evidence in court, the plaintiff gave evidence that she had no recollection of any of the specific events of sexual assault at any time prior to the occurrence of the flashback whilst she was having sex with her boyfriend, Rabih.
18. In cross-examination, the plaintiff confirmed that the position was that prior to the flashback occurring she had no memory of any sexual abuse. She agreed that it was after the flashback that it was "… the first time that you say that you remember ever possibly being sexually abused."
19. Dr Rodriguez gave evidence about what the plaintiff had told him about the final event. He recorded the history in his report of 5 September 2014. That history contained a statement by the plaintiff that immediately after the defendant concluded having sex with her, and left the room, the plaintiff then realised what had happened to her, and that it was real. The effect of what the plaintiff told Dr Rodriguez was that at all times after this event she had a recollection of it.
20. This evidence seems inconsistent with the plaintiff's account of what occurred to her when she had an initial flashback. The history given, namely of knowledge of what was occurring immediately after the event, is consistent with the evidence in cross-examination of the plaintiff, that she knew what happened to her was a crime, at the time of the event taking place.
21. That history, if accurate, would make it surprising that she did not report what occurred to the Police, or her sisters or other members of the family, such as her grandmother. When asked about the delay in telling anyone, the plaintiff said that she did not tell anyone for "… a while …", because she did not want to believe that it had happened. I thought that the plaintiff's evidence on this issue was most unpersuasive.
22. Ms Tamara Hunt was called to give evidence. She did not give any evidence about this specific occasion, nor of hearing any remark by the plaintiff to the effect of that contained in the defendant's evidence, but she did say that she recalled seeing the defendant at the Engadine Tavern frequently. She also said that she went to the Engadine Tavern with the plaintiff often. With respect to the assertion about sexual assault, Ms Hunt denied that she had ever been sexually assaulted, and expressed with certainty that she had never told the plaintiff that she had been sexually assaulted. Ms Hunt's account was not challenged. The defendant's recollection of being told by Ms Hunt that she had been sexually assaulted was clearly wrong.
23. Ms Renee Stapleton, a woman who frequented the Engadine Tavern and knew the plaintiff and the defendant socially, gave evidence that Mr Gersbach, the defendant, frequented the Engadine Tavern. She did not give any evidence about any of the circumstances on this specific occasion, although she did say that at an earlier unspecified time at a club in Cronulla, that the plaintiff had said to her: "My dad used to abuse me. He used to take me on bush rides on his bike where he would sexually assault me."
24. The plaintiff did not give any evidence that she had been on bike rides with her father into bushland where he would sexually assault her.
25. Neither Kate nor Hayley Gersbach were asked about the conversation set out above at [283]. However, both had given evidence that they were unaware of any allegation that the defendant has assaulted the plaintiff until sometime after the plaintiff had turned 19. They denied ever observing or hearing any instance of sexual assault.

Generalised Recollection of Sexual Assaults

1. Part of the plaintiff's case is that the defendant engaged in a course of conduct regularly, over many years, whereby he would come into her bedroom whilst she was asleep or pretending to be asleep and sexually assault her. These assaults took place at night whilst the plaintiff was in her own bed. The generalised course of conduct on the plaintiff's evidence seems to have commenced when the plaintiff was in primary school and continued until about the age of 14 or 15. Given that these assaults occurred at night, the plaintiff's mother and sisters are highly likely on most, if not all, occasions to have been at home and in the house at the time.
2. In her evidence, the plaintiff said that it happened lots of times when everyone was asleep, and that it was late in the evening. She described her father coming into her room and having both penile and anal sex with her.
3. In respect of the instances where the plaintiff said that it occurred in her bed, or her bedroom, her sister Kate gave evidence that for a period she shared a room with the plaintiff in the house at Lantana Road, and that they occupied bunk beds. Kate said that the plaintiff occupied the top bunk and she occupied the bottom bunk. When asked about this in cross-examination, the plaintiff had no memory of sleeping in a bunk bed at Lantana Road, but agreed that she did share a bunk bed in a single bedroom with her sister Kate when they lived at the Engadine flat.
4. The evidence is unclear about the year in which the garage at Lantana Road was converted into a bedroom, thereby giving the plaintiff a bedroom to herself, and each of her sisters having their own bedroom inside the house. As well, there is some evidence that for a period of time at Lantana Road, the plaintiff's sisters shared a bedroom and used the double bunks, thereby ensuring that the plaintiff had her own bedroom in the house.
5. Although the plaintiff gave a number histories about this course of conduct in various consultations over the years, Mr Griffiths in a consultation on 28 June 2007, recorded a lengthy note which relevantly contained these statements by the plaintiff: "… saying that her father pushed her head down onto his penis. Saying I had to do it right. If I wasn't any good, I would get the belt. Also he pushed his penis 'and things - I can't remember what - into my vagina'. … Said that when he put his penis into her mouth he grabbed her head and moved it up and down 'until he came'. He did this at home when he was often naked and in the car when not naked. … … her father told her (1) she had to do the sexual acts and (2) she could not tell anyone - because he would kill their mother."
6. The significant features of this history were not given in evidence by the plaintiff. Those features included being belted if her sexual performance was inadequate, the insertion by the defendant of foreign objects into her vagina, the occurrence of forced oral sex in a car, and the threat to kill her mother if the plaintiff did not comply with the defendant's sexual demands.
7. These features would not be easily forgotten by the plaintiff. The fact that they were not given in evidence, or in any other histories to other counsellors, or doctors, leads me to conclude that by the time the plaintiff came to give sworn evidence, she did not think that what she told Mr Griffiths was actually true and correct. The extravagance of this history and its absence from evidence results in the conclusion that it was simply not accurate. This weighs against the plaintiff's general veracity as an accurate recounter of history.

Physical Abuse

1. The third component of the plaintiff's claim is that she was physically abused by her father in such a manner, and with such frequency and severity, as to constitute tortious conduct on the part of the defendant. This approach necessarily accepted that the plaintiff would not recover damages if the defendant was using reasonable force for the purpose of proper discipline.
2. It may be noted that in the relevant time period, the use of reasonable physical force for disciplinary purposes was, under the common law, a defence to any charge of criminal assault. This defence of "lawful correction" provided that parents and those in loco parentis were permitted to physically punish their children, provided that the "correction" or chastisement was reasonable, moderate, administered with a proper instrument, and had a proper relation to the age, physique and mentality of the child: see Police (SA) v G, DM [2016] SASC 39; (2016) 258 A Crim R 75; Cleary v Booth [1893] 1 QB 465; R v Terry [1955] VLR 114; R v Mackie [1973] Crim LR 54; R v Griffin (1869) 11 Cox CC 402.
3. The common law defence of lawful correction was later incorporated into the Crimes Act by the enactment of s 61AA in the Crimes Amendment (Child Protection - Physical Mistreatment) Act 2001. That amending Act, which was assented to on 5 December 2001, is not retrospective in effect and accordingly has no application to the assaults in these proceedings.
4. The justification for relying on the criminal law for elucidation of matters concerned with tort law may be found in Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1 where the plurality at 149, adopting the language of Windeyer J in Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118, stated that the "sharp cleavage" between the criminal and the civil law is more apparent than real and, that the "roots of tort and crime" are "greatly intermingled".
5. The plaintiff gave evidence that this severe physical abuse was constituted by her father making her pull her pants down, bend over a bed and administering a strapping with his belt. The plaintiff's evidence was that she had a recollection of being physically assaulted in this way whilst living at the Engadine flat. She also said that these physical beatings occurred whilst she was in primary school and that they ceased as she got older, although she could not remember exactly what age these beatings ceased. She said they would occur when she was naughty, or if she lied and got found out, which she was "often".
6. In November 2006, the plaintiff supplied a significant number of documents to the VCT when she made an application for compensation. In an account given in a statutory declaration of 21 November 2006, which was supplied to the VCT, the plaintiff said that she had been the subject of severe physical abuse from around the age of 5, which ended when she was 19 years old. She described the physical abuse in this way: "My father used to make me take my pants and make me bend over and then he would beat me."
7. A number of handwritten notes of the plaintiff were given to the VCT as a part of her claim. One referred to incidents of physical abuse in this way: "Rod made us (my younger sister Kate Gersbach + I) pull our pants down, bend over the bed so he could whip our butts with the belt. That punishment known as - 'the belt' if we did something/anything wrong. Rod would threaten us with - the belt. Kate's told me she remembers running out of his room screaming or crying 'I'll smack you with the belt'. If we did something wrong mum would threaten us with 'I'll tell your father'." (sic)
8. On 7 December 2006, the plaintiff gave an account to the Sexual Assault Service at the Royal Prince Alfred Hospital that she could recall being made to take her clothes off to get strapped. She said that this occurred to her sister Kate as well. She also recalled that in Year 4 she told her teacher, whom she named as Mrs Ferguson, that her father would belt her if her report was bad.
9. The defendant did not dispute that he used a leather belt on the plaintiff's buttocks for the purpose of administering reasonable discipline to her. He did dispute that it was done in circumstances where the plaintiff was forced to pull her pants down, or that her buttocks were bare, or that he administered the punishment whilst she was bent over a bed. He did say that the plaintiff was bent over when hit with the belt. He disputed that this punishment was administered often, saying that it had actually occurred on fewer than five occasions.
10. Ms O'Brien's evidence generally accorded with that of the defendant. Ms O'Brien said that at the times the belt was administered, the children were fully clothed, that they just stood up straight, were never bent over and were hit hard enough to make them cry. She said that the plaintiff had no lasting marks from any occasion when the discipline was administered which supports the proposition that the beatings could not be described as severe, nor as a whipping. Ms O'Brien also said that the plaintiff made no complaint to her with respect to these episodes of discipline. The effect of her evidence was to characterise the punishment as being appropriate in the circumstances.
11. Kate gave evidence that she had not seen the plaintiff being hit with a belt by her father. She said that she had been, but that she had only ever been hit with the belt whilst she was clothed, when she was standing up and that her father administered the belt on maybe two or three occasions. Kate said that it had ceased to occur by the time she reached high school. Kate's account was not challenged in cross‑examination. This evidence largely corroborated the defendant's account, particularly with respect to the frequency of the administration of the punishment.
12. It is also relevant to note in considering this evidence that the Lantana Road house was described as being small or compact, and the internal walls at the house were described as being very thin. It was said in evidence that noise could be heard between the rooms of the house. Physical assaults of the kind described by the plaintiff could not have occurred at Lantana Road without anybody else who was in the house at the time being aware of, and hearing, the assaults happen.
13. The plaintiff's account of the method by which she, and her sister Kate, were hit with the belt is contradicted by each of the other relevant witnesses, in particular Ms O'Brien and Kate herself. The most florid of the accounts of that physical assault was given by the plaintiff in a statutory declaration made in support of an application for compensation, and in a handwritten note which she wrote herself. In that account, she suggested that the physical abuse had continued up to age 19. In her evidence, she said it occurred when she was in primary school and that she could not remember exactly what age she was when it stopped, however, the plaintiff did not suggest that her being hit by the defendant with a strap continued past about the age of 13 or 14 years old.
14. I do not accept that the plaintiff was strapped in the way she describes. If she was, then it must have been obvious to Ms O'Brien and, at least, Kate (if not Hayley). That is because of the size of the Engadine flat or the Lantana Road house, the thinness of the walls and the close living of the family. As well, Ms O'Brien specifically denied noticing any marks on the plaintiff which could be attributed to such abuse. If the beating was as hard as the plaintiff suggests and was carried out on her bare buttocks, then it seems to me to be highly likely that some marks would have remained on or about her body, which would have been seen by Ms O'Brien.
15. I am satisfied that the account given by the defendant of the administration of corporal punishment should be accepted. That is, he did administer corporal punishment to his children, but that it was done through the use of a belt whilst the children were clothed, not bent over a bed and on a small number of occasions. There is nothing in the evidence to suggest that this was administered for reasons other than discipline which the defendant regarded as appropriate, as did Ms O'Brien.
16. The accounts of the defendant, Ms O'Brien and Kate are consistent with each other, except that the defendant recalled the plaintiff bending over (but not over a bed), where Ms O'Brien and Kate's recollection is that the punishment was administered whilst standing up. I do not regard this inconsistency as significant. Of importance is that all three of them were consistent in their recollections that a bed was not involved and that the recipient of the punishment was fully clothed.
17. On the plaintiff's evidence, the punishment was administered whenever she was naughty or ill-mannered. Kate recalls being punished for similar reasons. Put differently, neither the plaintiff nor Kate associated the purpose of the punishment with any sexual motive on the part of the defendant, nor was it associated on the evidence with any form of sexual assault.
18. Given that the punishment was for a proper purpose, administered reasonably, not too frequently and without lasting physical effect, the plaintiff has failed to establish any tortious conduct on the part of the defendant.

Plaintiff's Psychiatric Conditions

1. The plaintiff relies upon her psychiatric condition as providing proof of the fact that sexual abuse had taken place. It is necessary to review the evidence about her diagnosed condition.
2. As is apparent from earlier discussion, from her teenage years onwards the plaintiff has suffered from a number of psychiatric conditions. In her early to mid-teenage years, she was diagnosed as suffering from anorexia nervosa and bulimia. As well, more recently, Dr Gordon diagnosed the plaintiff as suffering from a Borderline Personality Disorder ("BPD").
3. According to the Diagnostic and Statistical Manual of Mental Disorders 5th Edition ("DSM-5") to which the Court, with the parties' consent, had regard, there are three essential features of anorexia nervosa:

• persistent energy intake restriction;
• intense fear of gaining weight or becoming fat, or persistent behaviour that interferes with weight gain; and
• disturbance in self-perceived weight or shape.

1. It notes that anorexia nervosa commonly begins during adolescence or young adulthood, rarely before puberty. Further, the onset of the disorder is often associated with a stressful life event such as leaving home for residential tertiary education. One type of anorexia nervosa is the binge-eating/purging type in which an individual engages in recurrent episodes of binge eating or purging behaviour, namely self-induced vomiting or misuse of laxatives or diuretics.
2. Bulimia nervosa has similar features. The essential features are:

• recurrent episodes of binge eating;
• recurrent inappropriate compensatory behaviours to prevent weight gain; and
• self-evaluation that is unduly influenced by body shape and weight.

1. In order to qualify for a diagnosis of bulimia nervosa, these behaviours must occur on average at least once per week for three months. Individuals with bulimia nervosa place an excessive emphasis on body shape or weight in their self-evaluation, and these factors are extremely important in determining self-esteem. The binge eating episodes are generally associated with an episode of dieting to lose weight.
2. BPD is one of a group of disorders known as personality disorders. A personality disorder is an enduring pattern of inner experience and behaviour that deviates markedly from the expectations of the individual's culture, is pervasive and inflexible, has an on-set in adolescence or early adulthood, is stable over time and leads to distress or impairment.
3. BPD features a pervasive pattern of instability of interpersonal relationships, self-image and affects, and marked impulsivity. It generally begins in early adulthood. It is indicated by five or more of the following criteria: 1. frantic efforts to avoid real or imagined abandonment; 2. a pattern of unstable and intense interpersonal relationships characterised by alternating between extremes of idealisation and devaluation; 3. identity disturbance: markedly and persistently unstable self-image or sense of self; 4. impulsivity in at least two areas that are potentially self-damaging (eg spending, sex, substance abuse, reckless driving, binge eating); 5. recurrent suicidal behaviour, gestures or threats or self-mutilating behaviour; 6. affective instability due to a marked reactivity of mood; 7. chronic feelings of emptiness; 8. inappropriate intense anger or difficulty controlling anger; 9. transient, stress-related paranoid ideation or severe dissociative symptoms.
4. According to the evidence, BPD can have, at least in part, a genetic cause. According to DSM-5, individuals with BPD may have a pattern of undermining themselves at the moment a goal is about to be realised (eg dropping out of school just before graduation). Some individuals develop psychotic-like symptoms during times of stress. Premature death from suicide may occur in individuals with this disorder, especially in those with co-occurring depressive disorders or substance use disorders. Individuals with this diagnosis may also experience recurrent job losses and interrupted education. Physical and sexual abuse, neglect, hostile conflict and early parental loss are more common in the childhood histories of those with BPD than in others. Common co‑occurring disorders include substance use disorders, eating disorders (notably bulimia nervosa), post-traumatic stress disorder ("PTSD") and other personality disorders.
5. Dr Jonathon Phillips gave evidence in which he described a borderline personality as a serious distortion of personality. He said that the personality of a person with BPD is characterised by very rapid changes in mood, unusually intense mood states for the person's age group, a tendency to use sexualised coquettish messages, but not to be particularly sexual, and a tendency to fragment in the sense of having difficulties maintaining the correct chronology of memory and putting important events in perspective. He thought that looking at external stresses of life, particularly during the formative years of childhood and adolescence, was more important than examining genetic components, although he did not suggest that there was no genetic cause for BPD.
6. Dr Gordon, who it is to be noted is the specialist psychiatrist presently treating the plaintiff, expressed the opinion, which I accept, that the plaintiff is suffering from BPD and, as well, PTSD. He described the symptomatology in this way: "There are three realms of personality that are very central to human existence and behaviour. The first one is a sense of belonging and the ability to achieve that and sustain it. That's a very central element in all personality. The second one is to learn to manage your emotional state so that it remains within a very reasonable parameter and does not get out of control. The third area is … goal-directed behaviour, the ability to organise yourself in a particular direction and sustain and maintain that until your goal is achieved. Those three realms are a bit like three legs of a stool. Each leg, if not formed, makes the balance of that personality more difficult. By the time all three parameters are involved, we have a borderline personality disorder."
7. Dr Gordon was asked about his opinion as to the cause of the plaintiff's BPD. He gave this answer: "Well, borderline personality disorder may or may not have a genetic substrate, but the general feeling among psychiatrists who deal with this disorder believe there is a significant factor at about early childhood that plays a part. Neglect and abandonment are often fairly common in that situation and then trauma of some sort, physical, psychological can bring about the symptoms of borderline personality disorder."
8. Dr Phillips was of the opinion that there was no doubt that the plaintiff has a longstanding BPD. He was of the view, by reference to the numbered diagnostic criteria to which reference has been made above in [327], that the plaintiff met criteria (2), (3), (4), (5), (6), (7) and (9). Dr Phillips said that there was relatively strong clinical evidence that the plaintiff suffered Syndromal Depression and Anxiety, Episodic Panic Disorder, Chronic Relapsing Anorexia Nervosa (binge eating type), hazardous use of alcohol and a variety of illicit psychoactive drugs. He also concluded that the plaintiff had experienced symptoms which: "… point to, if not diagnose, post-traumatic stress disorder and she has possible features of obsessive/compulsive disorder."
9. Whilst Dr Gordon expressed the view that the plaintiff's BPD was caused by the sexual abuse to which she had been subjected, Dr Phillips took an opposing view. He said this: "Ms Gersbach's history and presentation, and the additional documents, do not suggest her to be within the normal category of people who have suffered childhood sexual abuse. I am very familiar with this group of people. To the best of my understanding the plaintiff had a less than satisfactory relationship with her parents, particularly her father, in the course of her formative years. In the context of the plaintiff's complex psychopathology, she began to elaborate a history of sexual abuse which has become more obvious to her with the passage of time and more comprehensive as well. The most likely explanation for the plaintiff's serious accusations regarding the conduct of her father will be through the development of false memory."
10. One of the ways in which the plaintiff puts her case is that her account of the sexual assaults is corroborated by the undoubted existence of her BPD. The plaintiff's case is that her disorder was caused by the sexual assaults perpetrated upon her by her father. She submitted that the fact of her disorder is, on all of the evidence, powerful support for her account that the assaults took place.
11. As discussed above, there seems little doubt that the plaintiff has a BPD and that she has features of PTSD. I accept that this is so. The question which arises on the evidence is what the cause of the plaintiff's BPD is, or what the causes are.
12. In his report of 12 May 2015, Dr Robert Gordon expressed the opinion that it was highly likely that the plaintiff's underlying psychiatric illness was directly related to the sexual and physical assaults perpetrated upon her from a very early age. He said that a BPD is commonly the consequence of physical and sexual violence in childhood and, hence, severe emotional neglect.
13. DSM-5 contains this statement: "Physical and sexual abuse, neglect, hostile conflict, and early parental loss are more common in the childhood histories of those with [BPD]."
14. Dr Phillips in his report of 6 May 2016 had no doubt as has earlier been noted, that the plaintiff had a long-standing BPD and that there was relatively strong clinical evidence that the plaintiff suffered syndromal depression and anxiety, episodic panic disorder, chronic relapsing anorexia nervosa (binge eating type), hazardous use of alcohol and a variety of illicit psychoactive drugs.
15. He was also of the view that there was some evidence that the plaintiff had experienced episodic paranoid symptoms and that she had experienced symptoms which pointed to, if not diagnosed, PTSD and possible features of any obsessive/compulsive disorder.
16. Dr Canaris gave evidence was to what a BPD was. He described it in this way: "Borderline personality disorder is a reasonably severe personality disorder. It's characterised by rapid shifts of mood, impulsivity, risky behaviours, a propensity to idealise and then devalue people, frequently self-harm, sometimes suicidality, but also very often self-harm which is driven by an attempt to distract yourself from psychological distress. … It is a disorder which often leads to frequent presentations to Emergency Departments … which is quite difficult to treat. And it may be associated with other conditions."
17. In evidence, Dr Gordon said that it would be unusual, although not impossible, for a child in primary school who had been the subject of child sexual abuse or severe child sexual abuse to show no symptoms of that abuse whatsoever. I took this to include behaviours of a kind which would have been noticeable to school teachers. He agreed that there was nothing in the evidence which he had heard from the plaintiff (which was the entirety of her evidence) that suggested in respect of her primary school years that she had been the victim of any child sexual abuse. That evidence obviously left out of account, and did not include the plaintiff's evidence-in-chief of where she herself recounted the instances of physical and sexual assaults.
18. In cross-examination Dr Gordon agreed that there was not merely one single cause of BPD. He agreed that one could not exclude a genetic factor and that there are a number of environmental factors that may play a role in the development of BPD. He also agreed that the development of BPD is not necessarily related to child sexual abuse and that there can be other causes. One element which he identifies as being an available cause is the existence of feelings of abandonment.
19. Dr Gordon was asked about the causes of bulimia nervosa and anorexia nervosa. He agreed that the causes were not known, but that the conditions occur in early adolescence and that the percentage of such conditions is higher in girls. He agreed that the conditions occur without there being any childhood sexual abuse. He said that those psychiatric conditions could be described as prevalent, although he would not describe them as common. Although he did not express any particular expertise in the field of anorexia or bulimia, he agreed with counsel that it was fair to say that the conditions often arise in association with perceptions of body image.
20. Dr Gordon gave evidence that the description which the plaintiff had given him about the characters of each of her parents and their relationship with her was a description which might lead to the development of BPD. He agreed that the description demonstrated that the child was likely to develop a psychiatric disorder, but not necessarily BPD.
21. Dr Gordon agreed that when the plaintiff and her then boyfriend broke up in Year 12 immediately before the start of the HSC exams, it was a traumatic event for the plaintiff. That event indicated to him that the plaintiff had suffered a severe level of acute depression and that what occurred would have led to a sense of severe abandonment. However, he did not agree that such a severe sense of abandonment could well explain the plaintiff's development of BPD. In principle, the reason for that was his view that BPD did not first arise when a person was aged about 18, but rather that it was already evident in early childhood when a child was pre‑pubescent.
22. Although I concluded that Dr Gordon was somewhat elusive in his answers to questions about possible causes of BPD which tended to a position of advocacy for the plaintiff, he ultimately gave this evidence which ought to be accepted: "Q. … If in fact Jayne had the types of parents you refer to in your report, as she described them to you, and if she then perceived physical abuse by beltings by her father which she hated and which made her angry with her father, then isn't it possible that borderline personality disorder might have been set in train by those events? A. It's possible. Q. Yes, and you don't need any childhood sexual abuse to explain the development of borderline personality disorder in those circumstances, do you? A. No."
23. He also gave some evidence in cross-examination about the hallucinogenic effects of cannabis. He said this: "Q. In respect of the effects on the brain, of the consumption of cannabis, one of the effects that can arise in some people are the experiencing of hallucinations? A. Correct. Q. Did Jayne give you any history, in respect of her use of cannabis, at the time of her flashback? A. She mentioned that that was part of her experience at the time, but I don't recall the extent of which - how long she used it for, or at what - Q. But if she had in fact consumed cannabis shortly before the flashback, then it may be that the flashback was in fact a hallucination, may it not? A. It's a very organised hallucination. Hallucinations don't usually run in that organised way. Q. Is the answer yes? A. Probably."
24. This evidence is another example of a tendency on the part of Dr Gordon to avoid, until pressed directly, answering questions in a way which he thought may be adverse to the plaintiff. He was, at times, not as independent an expert as the Expert Code of Conduct requires, and the Court expects.
25. The question of the role of hallucinations was pursued by cross-examining counsel and led to this evidence: "Q. … but in fact what may have occurred, is that in experiencing a flashback that was a hallucination, that may have led to Jayne somehow recovering or fantasising about what might have happened, and eventually come to believe that her father had performed these acts on her, that's a possibility that you can't discount, is it? A. Possibilities can't be discounted. But the probability is that the way the story unfolded is not what I would consider would be a continuing marijuana effect."
26. Mr Griffiths also gave some evidence about causes of BPD. He accepted that from his experience there was not one single cause of BPD, and that it was generally a combination of both genetic and environmental factors. He said that the environmental factors that might play a role included emotional, physical or sexual abuse of a child. He did not think that any of these three types of abuse could lead to the development of BPD on its own. It was his view, and from his experience, that the most likely environmental factor that would lead to a development of BPD was severe neglect, or else the child's perception of severe neglect.
27. Mr Griffiths said that BPD could often occur in the absence of any sexual abuse and that if a child perceived that physical beltings by a father were severe and prolonged and if that was coupled with a perception of a remote mother, then providing that the degree of severity could be regarded as amounting to severe neglect, then those factors could cause BPD.
28. Mr Griffiths also agreed that the episode described by the plaintiff to him of finding photographs of her mother, and when discussing it with her parents, having a reaction which caused her distress, may be a factor which with other aspects of neglect (or perceived neglect) which could lead to the development of BPD.
29. Dr Rodriguez agreed that the development of BPD did not necessarily have to be associated with a history of sexual abuse. He expressed the opinion that some people were more genetically disposed to the development of the disorder than others and so the disorder might be triggered by a more minor event than would be required in more resilient people.
30. In cross-examination, Dr Rodriguez said that the development of BPD was usually associated with invalidation, neglect or an unstable home environment. He agreed, when discussing those factors, that it was a matter of the perception of the individual as to what had occurred and what they were feeling rather than the objective reality of what in fact happened. What he said was: "Perception is 100% of an individual. So it is how you perceive the world. Everything is about perception. So if I perceive that your manner is hostile, then that's my perception. Other people here may think that it is not correct, but perception is very important in development of personality, development of features."
31. He then gave this evidence: "Q. If a child, let's say in primary school, was disciplined by her father by being beaten with a strap on certainly more than one occasion over a period of time, and was very distressed by that, hated her father for that, was fearful of her father and also at the same regarded her mother as being someone who was distant and didn't take an interest in her, is that the sort of situation that can lead to the development of a borderline personality disorder in someone who might predisposed to that condition? A. It could. It's possible. There may be even less than that. Q. That can lead to the development of a borderline personality disorder? A. It's the invalidation. It's the feeling of invalidation of, of not being heard. Q. Once again, when you say 'the feeling of the invalidation', that's the perception of the child? A. Yes."
32. Importantly, Dr Rodriguez was asked about the symptoms he would expect a child to display, whilst in primary school, where the child had been subjected to sexual abuse at that time. He said that he would expect to see externalising behaviours such as acting out, having behavioural problems, sometimes withdrawing, sometimes being depressed, not wanting to attend school, being very morose, not having much motivation and sometimes talking about suicide. He said also one would expect to see an attenuation of academic progress. The evidence did not identify any of these behaviours as happening during the time the plaintiff was at primary school. In fact, the evidence about the plaintiff's activities and sporting achievements was to the contrary.
33. On this question, Dr Rodriguez said: "Q. If someone who was later in life after primary school diagnosed with borderline personality disorder, would you expect that if that person had been the subject of serious child abuse during primary school that there would have been some symptoms of that severe sexual abuse whilst the child was still at primary school? A. Yes. Can I just add 'in most cases, but not in every case'."
34. In re-examination, Dr Rodriguez gave this evidence: "Q. Assuming that she had been sexually abused, and assuming she had been physically abused by strapping, a heavy leather strap, during primary school, at various times to the point she was fearful of her father, would you expect that to have manifested itself in some way? A. Yes I would. I would expect psychological conditions to manifest. The fear made manifest in depression, low mood, anxiety, hyper vigilance, at times even bedwetting. Q. Unhappiness at school? A. Unhappiness at school, inability to derive pleasure from usual activities, withdrawal."
35. No such psychological conditions were described in evidence by the plaintiff during her primary school years. The existence of such conditions at that time was not the subject of cross-examination of Ms O'Brien.
36. The only evidence about the plaintiff not attending school which was clearly identified in evidence was the occasion in her first year of high school which resulted in her changing high schools. In her evidence, the plaintiff attributed this event, as did her parents in their evidence, to an episode of bullying and other mean behaviour towards the plaintiff by one or more of her fellow students. The behaviour related to the plaintiff's physical appearance. None of the other signs spoken of by Dr Rodriguez were described in the evidence at any time prior to the plaintiff being identified as having an eating disorder in her mid-teens.
37. The substance of Dr Phillips' opinion was that he did not accept that there had been any sexual assault of the plaintiff, but rather attributed the plaintiff's complaints of sexual assault to a "false memory". In other words, Dr Phillips identified an explanation for the histories given by the plaintiff which did not relate to her BPD, or which could explain the cause of her BPD. Inherent in this opinion was that the plaintiff's BPD was caused by something other than sexual assaults on the plaintiff by her father. In cross‑examination, Dr Phillips agreed that if there had been a warm, empathetic relationship between the plaintiff, the defendant and Ms O'Brien, if there were no cruelty or sexual or physical abuse at home and if there was warmth in the relationship, that it would be improbable that such a child would develop BPD, although it would be possible. Dr Phillips expressed the view that it would be possible because of the influence of genetics in the development of such a disorder. He also said that the development of anorexia or bulimia would be consistent with a person who had been sexually abused, as would behaviour of a kind such as a teenager at the age of 14 drinking alcohol and concealing that from her parents.
38. Dr Phillips was asked to clarify what he was referring to when he used the notion of false memory. He said this: "It means a memory which has no basis in reality, which has come on often relatively suddenly, but certainly over a reasonably short period of time. It is a memory which is held with absolute conviction and is a memory more often than not which occurs in a situation which has been conducive to the person searching for matters in the past generally of a sexual nature."
39. The concept of false memory will be addressed in further detail later in this judgment.
40. The plaintiff submitted that the Court would find that her BPD was caused, or materially contributed to, by the events of sexual abuse which occurred whilst she was a child. She submitted that the evidence demonstrated unequivocally that the occurrence of child sexual abuse is well-known as a cause of the development of BPD. She also submitted that the evidence does not establish the existence in her case of any other sufficient cause for the development of BPD, except the sexual abuse which she said that she suffered.
41. In that way, the plaintiff's submission is that the undoubted fact that she has BPD is corroborative of her evidence that she was sexually assaulted by the defendant in the ways and at the times which she described.
42. All experts agree that the plaintiff presently has BPD. They all agree that childhood sexual abuse of the kind which she describes can be the cause of BPD. All the experts agreed that the cause of BPD can be, and often is, multi-factorial. They all agree that childhood sexual abuse is not the only cause known for BPD. The question therefore is whether the evidence identified any other possible cause or causes, for the plaintiff's BPD.
43. As well, because of the nature of BPD, it is clear from the experts' evidence that the perception of a child or teenager as to the way in which they have been treated, or what event occurred and how they reacted to, or else felt about the event is what is important, rather than the observation of a reasonably objective individual as to what in fact had occurred. Putting it differently, the experts agree that a reasonable person may regard an event from an objective view as not actually causing any trauma to a child. However, the issue when examining the cause of BPD is not that view, but rather whether the child perceived the event in that or some other way. Accordingly, in searching for other causes in the evidence for the plaintiff's BPD, the important evidence to examine is the plaintiff's perceptions of what was occurring in the Gersbach family rather than her parents' perceptions of the nature of their relationship with her.

False Memory

1. In his report dated 6 May 2016, Dr Phillips concluded that the most likely explanation for the plaintiff's accusations against her father was through the development of false memory. In that report Dr Phillips used the term "false memory syndrome".
2. If that term was intended to be used as a recognised psychiatric diagnosis, then Dr Phillips would have fallen into error because no such syndrome is recognised to exist in either DSM-5 or the International Classification of Diseases - 10th Revision ("ICD-10"). This revision is the current one, having been adopted in May 1990 by the World Health Organisation.
3. It is not unimportant to note that Dr Phillips in his evidence made it plain that he was not suggesting that the fact that a patient might have a false memory would mean that there was an identified and accepted psychiatric syndrome called a false memory syndrome. He said that false memory exists rarely and in unusual circumstances and that it was not a categorical diagnostic entity of a kind which could be described as a syndrome, and therefore it was inappropriate to include it specifically in DSM‑5 or as a classification in ICD-10.
4. Dr Phillips made it clear that he was suggesting that false memory was a phenomenological experience which is real, powerful and pervasive.
5. Mr Griffiths gave evidence that he understood that a false memory was a term used to describe: "… where a person is relating a story that didn't actually happen, but the person can believe that it happened."
6. He said that false memory was a phenomenon with which he was familiar.
7. In cross-examination, Mr Griffiths expressed doubt that the plaintiff's account of sexual assaults was a false memory because it had been "… resilient over a lengthy counselling experience". But he agreed that whilst treating the plaintiff he was not attempting to discover whether her memories were false or not, but rather that he proceeded upon the basis that he accepted her account to him as truthful.
8. Mr Griffiths also noted that he had experience working with people who had a fixed delusional belief about an assault having occurred.
9. Dr Canaris accepted that false memories could exist, particularly where the event being recalled was a sudden or unexpected one, or else where an individual may be "… sufficiently suggestible". He agreed that such a person may be influenced by articles or books which they had read. He agreed that the book "The Courage to Heal" was one such publication.
10. Dr Gordon strongly dismissed the notion of a false memory syndrome as being one which none of his colleagues would support. He understood that false memory syndrome encompassed such memories being brought about by therapists evoking such a memory in a patient. Dr Gordon did agree however that it was not unknown in the field of psychiatry for the phenomenon of an honest belief in an incorrect fact to be encountered.
11. Whilst the phenomenon of a person having false memories is known in the field of psychiatry as, it seems, comparatively rarely, it is well identified in the law.
12. Almost 30 years ago, McHugh J addressed the fallibility of memory in Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79. At p.107 he said: "17. The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to 'remember' is well documented. The longer the period between an 'event' and its recall, the greater the margin for error. Interference with a person's ability to 'remember' may also arise from talking or reading about or experiencing other events of a similar nature or from the person's own thinking or recalling. Recollection of events which occurred in childhood is particularly susceptible to error and is also subject to the possibility that it may not even be genuine: Hunter, Memory, rev. ed. (1964), pp.269-279. 18. No matter how honest the recollection of the complainant in this case, the long period of delay between her formal complaint and the occurrence of the alleged events raised a significant question as to whether her recollection could be acted upon safely. The likelihood of error was increased by the circumstances in which the complainant said the incidents occurred. The opportunity for error in recalling, twenty years later, two incidents of childhood which are alleged to have occurred as the complainant awoke, and then pretended to be asleep, are obvious. Experience derived from forensic contests, experimental psychology and autobiography demonstrates only too clearly how utterly false the recollections of honest witnesses can be. …"
13. In MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348, the High Court set aside a conviction on two counts of perjury under s 327 of the Crimes Act 1900 (NSW). The conviction was set aside because of a failure by the trial judge to give a direction which the Court found ought to have been given. That direction was said to require the trial judge to explain to the jury how they should differentiate between the giving of evidence honestly although mistakenly on one hand, and the giving of false evidence dishonestly on the others. The basis for this conclusion was that problems identified in courts over time have occurred: "… not because witnesses have deliberately given false evidence to police, and later to courts, but because it is an elementary feature of human psychology, … to carry a 'true mistake … through with … conviction'. "
14. The judgment of the plurality (Gaudron, Gummow and Kirby JJ) cited with approval the decision of the Full Court of the Supreme Court of Victoria in R v Dickson [1983] 1 VR 227 at 231, where it was said: "[I]t is essential to distinguish between honesty and accuracy and not assume the latter because of belief in the former."
15. The plurality remarked that the converse was also true.
16. In my view, the existence of the phenomenon of a false memory is a matter of forensic reality. The absence of it being regarded as an established and recognised psychiatric syndrome does not detract from this conclusion.
17. Whether or not the histories of the sexual assaults recounted by the plaintiff, and the evidence which she gave about the conduct of the defendant towards her, are accurate is not a matter which depends upon her honesty. It is a matter, so it seems to me, which is to be judged by a careful consideration of all of the surrounding facts, matters and circumstances, including the assessment of the extent of the consistency or inconsistencies in the accounts which the plaintiff has given.
18. In undertaking such a consideration, it is inevitable that the "subtle influence of demeanour" will have an impact upon any determination which the Court makes: Jones v Hyde [1989] HCA 20; (1989) 63 ALJR 349 at [18] per McHugh J.

Discernment

1. It would be an unsatisfactory basis for the resolution of these proceedings for the Court to simply prefer one account over another solely on the basis of a witness's demeanour whilst giving evidence. A careful observation of each of the lay witnesses whilst they were giving evidence, particularly the plaintiff, the defendant and Ms O'Brien, showed that the experience of giving evidence was itself traumatic. After all, the individual lives of these family members and their combined family life was being put on public display. It cannot have been an easy experience for any of the family members. To resolve the evidentiary differences, it is appropriate to proceed by analysis of the evidence, including reference to the surrounding context, and all other relevant matters and circumstances. It is appropriate to search for and identify any corroboration which may exist, or may be expected to exist.
2. Proceeding in this way, I have reached the conclusion that I cannot accept the plaintiff's evidence as establishing on the balance of probabilities, including having regard to the matters referred to in s140 of the Evidence Act, the events which she describes, of sexual and physical abuse perpetrated upon her by her father, and therefore the causes of action upon which these proceedings are based.
3. An integral part of this conclusion involves my inability to conclude that either Ms O'Brien or the defendant were intentionally lying in their evidence. Given that the conduct attributed to the defendant and Ms O'Brien constituted serious criminal conduct which must have been intentionally carried out, their evidence denying that the conduct occurred cannot be explained by forgetfulness or some other innocent reason. No parent, in my view, could forget that they had done such things to their daughter over such an extended period of time. It follows that if the plaintiff is to succeed, I must be satisfied by the evidence that Ms O'Brien and the defendant gave intentionally false evidence. I am not so satisfied.
4. Integral to that conclusion, is that I am also satisfied that there are many other matters in evidence, and in various accounts given by the plaintiff that are, in my assessment, factually untrue, even if the plaintiff honestly believes the facts to be true. These memories are, I am satisfied, false memories. It is convenient to turn to a discussion of some of these matters. A number have been considered in detail earlier in this judgment.
5. The first matter to be considered was the evidence of the plaintiff that her father was sexually abusing her two younger sisters. Both younger sisters, Kate and Hayley, denied that they had ever been sexually assaulted by their father. The defendant also denied that he had sexually assaulted them. With the exception of the plaintiff's assertions in conversations and histories referred to below, there was no evidence that any assaults had in fact occurred.
6. In about 2011, when Hayley was about 21 years old, Kate gave evidence of a conversation with the plaintiff in which she challenged the plaintiff's account that she had been sexually assaulted by the defendant. Kate gave evidence to the following effect: "I said 'why didn't it happen to me?'. The plaintiff said 'it did happen to you but you're in denial'. I said 'you are a nutcase, you seriously need help. It didn't happen to me'. The plaintiff said 'well, it didn't happen to you because you don't have red hair'. I said 'so, did it happen to Hayley then?'. The plaintiff said 'yes, it's still happening to her'."
7. Kate was not challenged about the accuracy of her evidence of the conversations, which I accept.
8. Hayley gave evidence on the same subject. She said that about the same time as the conversation just related took place, the plaintiff telephoned her and they had a conversation to the following effect: "Jayne said 'did Dad come into your room this morning?' I said 'yeah, what are you trying to say?' Jayne said 'Dad is molesting you now'. I said 'I think I would know if anything was happening to me right now'. Jayne said 'you're in denial'."
9. Again, Hayley was not cross-examined to suggest that this account was untrue. I accept that this evidence is accurate and recounts the particular conversation truthfully.
10. Both of these conversations centred upon the plaintiff asserting that the defendant had sexually assaulted each of her sisters, who each denied such an event. The plaintiff did not accept their denials, and continued to assert that the defendant was sexually assaulting her sisters.
11. According to a history given to Mr Griffiths by the plaintiff in March 2007, the plaintiff told him that her younger sister Hayley had confided in her that she had been assaulted by their father when she was younger. The fact of this conversation with Hayley, which would have been foundational to the belief of the plaintiff about the abuse of her sisters, was not the subject of evidence by the plaintiff. No suggestion was put to Hayley that she had said any such thing to the plaintiff. I regard the absence of the evidence about this conversation, and the lack of any challenge to the truthfulness or accuracy of the evidence of Kate and Hayley, as strongly favouring a conclusion that the plaintiff had no factual basis for these assertions. This history given to Mr Griffiths was quite untrue and inaccurate.
12. The plaintiff had in September 2006 informed the Police that although her two younger sisters had not ever disclosed to her any sexual abuse upon them by their father, she believed that it could be occurring.
13. I am satisfied that I should accept the denials of Kate and Hayley that they were ever sexually assaulted by their father. There is simply no evidence that any sexual assaults occurred, nor is there any reasonable basis for the plaintiff to suspect that such conduct had occurred. I am satisfied that the accounts which the plaintiff gave to the Police and to Mr Griffiths, and with which she confronted her sisters, were simply not based on any factual reality. I am satisfied that the plaintiff has simply invented the allegations, although there is not sufficient material to enable a motive to be determined. This conclusion means that the plaintiff's evidence on this matter is wholly unreliable and is inaccurate. It is a matter to be taken into account when considering the reliability of her evidence generally.
14. The second matter which is a similar subject matter to the first is a history given by the plaintiff to a counsellor, Ms Lil Vrklevski on 22 September 2005, at the Central Sydney Area Health Service, which was as follows: "Jayne reports that she has memories of being sexually abused by her father from a young age. Recalls masturbating in front of her father after having a bath. Younger sister Hayley was also masturbating. … Jayne states she is fearful that her younger sister, Hayley, was also sexually abused by their father as she is starting to display same behaviours and eating disorder as Jayne."
15. The timing of the event of masturbation is not described. Given that there is a seven year age difference between the plaintiff and Hayley, it would seem unlikely that, if it occurred, the plaintiff was any younger than 10 years old.
16. This history was not the subject of sworn evidence given by the plaintiff, nor was Hayley asked any questions about this incident. Having regard to the subject matter, and that the history was given at a relatively early stage (22 September 2005) of the various disclosures by the plaintiff, this account would be a highly probative of the allegations of the sexual assault made by the plaintiff. If recounted in evidence and corroborated, this event would add to the truthfulness of the plaintiff's account of her relationship with her father and his conduct towards her. The nature and content of the event, particularly as involving the plaintiff's younger sister, suggests that it was a memorable one.
17. The absence of evidence being given on oath about this event is highly unlikely to be explained by forgetfulness. I think that this history was inaccurate and not based in any reality. It was a false memory.
18. The next matter about which it is appropriate to shortly comment is the issue of the alleged severe physical assaults by the defendant on the plaintiff.
19. Because as I have earlier found, I am unable to accept the plaintiff's account of the severe physical abuse, that is a further significant factor which is to be taken into account when considering the reliability and acceptability of the whole of her evidence.
20. The next group of matters of significance is the evidence and various histories given by the plaintiff which involved allegations of inappropriate behaviour by and involving her mother, Ms O'Brien.
21. It is convenient to commence with the plaintiff's accounts to various people that she saw photographs of her mother naked and tied up. She gave no evidence-in-chief about seeing such photographs. She was challenged in cross-examination about the fact that she had said that she had seen photographs depicting her mother being tied up. The plaintiff adhered to her previous accounts of what the photographs showed. Both the defendant and Ms O'Brien accepted that photographs were taken of Ms O'Brien by the defendant whilst she was naked, but both said that she had not been tied up.
22. This event is said by the plaintiff to have taken place at the Engadine flat. The bed in the bedroom at Engadine which was occupied by Ms O'Brien was a double bed base without a bedhead.
23. The photographs were not tendered in evidence. Whether they still exist was not the subject of any evidence, although having regard to the passage of time since the event occurred, it would be surprising if they still existed. Their absence has the consequence that there is no objective means, independent of the witness' accounts, by which the Court can determine the issue of whether Ms O'Brien was tied up or not, or whether as the plaintiff has said, she was distressed or drunk.
24. The plaintiff gave a history to Mr Griffiths that in the photos her mother looked like she was drunk and that they depicted her naked and tied up. She told Dr Phillips that her mother appeared to be distressed in the photos.
25. In the note taken by Dr Gordon in consultation with the plaintiff on 6 May 2014, the contents of which are also set out at [261] above, there was recorded an (abbreviated) account of what seems to be the incident where a photograph was taken. It is convenient to repeat here what Dr Gordon recorded. He wrote this: "Once, when I was quite young, he brought me into their bedroom. I was naked. My mother had one arm tied to some cot, I think, and her other arm to the bedhead. Her feet were also tied to each end of the bed. She was naked. He told me to lick between her legs. I remember feeling terrified and nauseated. She said 'Oh, please no, Rod', but he forced my head between her legs and I had to lick what I now know to be her clitoris. I remember she was crying and I was terrified. I think there was a photograph taken. I think my grandmother saw it."
26. A statement from Mrs Pamela O'Brien, the plaintiff's grandmother, was tendered and became an exhibit. The plaintiff did not seek to cross-examine Ms O'Brien. Mrs Pamela O'Brien made no reference in her evidence to ever seeing a photograph of the kind described above.
27. The account, given to Dr Gordon, cannot sit with the evidence about the nature of the bed in Ms O'Brien's bedroom. Her unchallenged evidence was that there was no bedhead. The plaintiff also gave evidence to the same effect. As well, in the absence of any structure around the bed, no anchoring points have been identified to which Ms O'Brien's legs could be tied as the plaintiff described to Dr Gordon. The other matter to be noted is that the account given to Dr Gordon by the plaintiff conflates two events which are otherwise separately identified, namely, an incident of sexual abuse said to have taken place involving the plaintiff's parents jointly, and the incident in which the plaintiff saw one or more photographs of her mother naked.
28. That there were some photographs seen by the plaintiff which were taken whilst her mother was naked is not in dispute. The defendant and Ms O'Brien gave evidence that by chance the plaintiff saw them and became distressed. On their version, which I accept, the plaintiff was comforted and given appropriate advice. The evidence of the defendant and Ms O'Brien contradicted the plaintiff's evidence that her mother was tied up in any way.
29. I do not accept the plaintiff's account that she saw her mother naked and tied up, because I accept Ms O'Brien's denial of that account, and also because I am satisfied that the physical environment did not permit the plaintiff's mother to be tied up as the plaintiff asserts. It follows that I am persuaded that the accounts given by the plaintiff of the contents of the photographs is wholly inaccurate. Her memory of it is a false memory. This conclusion further impacts upon the overall accuracy of the plaintiff's version of events.
30. At [254] above and following, I have described at some length the evidence about, and the accounts given by the plaintiff of the fifth incident relied upon by the plaintiff as part of her claim. It is the incident in which she alleges that her mother was a participant and needs presently to be considered separately from whether the plaintiff's description of what she saw in the photographs is correct or not. It is necessary to consider and assess the discrepancies in the plaintiff's various accounts of this incident.
31. There are significant inconsistencies between the plaintiff's evidence of this event and various accounts which she has given to others. The first discrepancy relates to how old the plaintiff was when the incident occurred. In evidence she said that she was about eight years old. Her various accounts outside of court suggest that she was much younger - about five years old.
32. The second discrepancy relates to whether photographs were taken on this occasion or not. No such account was given in her evidence-in-chief, but various accounts given out of Court recounted that photographs were taken of this incident. In cross-examination the plaintiff adhered to her account that the photographs show her mother naked and tied up. As earlier discussed, I do not accept this evidence.
33. The third discrepancy is between the plaintiff's evidence-in-chief and the account told to Mr Griffiths on the one hand, and her account of this incident to Dr Gordon on the other, concerned whether her mother was tied up during the incident. It is unlikely that this discrepancy can be accounted for by there being a simply error of recollection since at least, as earlier discussed, the circumstances physically with respect to the bed were not such as would have allowed her mother to be tied up as the plaintiff described.
34. The fourth discrepancy is one which concerns whether the plaintiff was physically coerced by the defendant to perform oral sex on her mother. She told Dr Gordon that "… he forced my head between her legs …". The plaintiff's evidence-in-chief was that she did what she was told by her father, the defendant, but she did not say that the defendant had physically forced her in any way. At [262], I recorded my conclusion that I was not satisfied that the plaintiff's account to Dr Gordon was accurate.
35. The fifth discrepancy is whether the plaintiff's mother said that she didn't want the plaintiff to do what her father told her to, as she said in evidence, or whether her mother said that it was okay for her to do what she was told as the plaintiff told Mr Griffiths.
36. As earlier recorded, Ms O'Brien and the defendant emphatically denied that this specific incident occurred.
37. Considering the evidence of the plaintiff, and her various accounts of this event, including the discrepancies identified above and taking into account the denials of the defendant and Ms O'Brien, I am unable to accept the plaintiff's evidence that this incident occurred at all. It is in my assessment a figment of her imagination, likely to be related to, or arising from the photographs which she undoubtedly saw of her mother lying on her bed whilst naked. The repeated telling of this event with a degree of certitude and embellishment suggests strongly that the plaintiff's account of this incident is a false memory.
38. This conclusion is of particular importance in assessing the overall veracity and accuracy of the plaintiff's evidence about the facts and matters which support the causes of action upon which she relies.
39. A further matter involving the plaintiff's mother which is related to the specific incident just discussed is that the plaintiff asserts that her mother had knowledge of the various sexual assaults which were alleged to be occurring and did nothing to stop the defendant's conduct. The plaintiff gave an account to Mr Griffiths on 26 October 2007 in the following terms: "She describes aspects where her father appeared to believe he was in a relationship with Jayne … Jayne was like her mother's competitor. Remembers aspects where the abuse was discussed openly - Jayne being told in front of her mother that she didn't do it properly and Jayne being in tears asking to be told how to do it."
40. Dr Rodriguez, in his report dated 5 September 2014, attributed to Mr Griffiths a description of this as a "bizarre incident".
41. To Dr Rodriguez, she described her mother in these pejorative terms: "She described her mother as a 'shell', she said: 'she was weak, brainwashed, a bubble … completely controlled by him'. "
42. In her statutory declaration of 21 November 2006, filed in support of her claim for compensation, on this subject the plaintiff said: "My mother turned a blind eye all these years. She was always aware of the abuse over all these years. … My own mother disregarded what I was saying, she would answer me even before I finished what I was saying. My mother could not cope with the fact that her own husband was sexually and physically abusing his own daughter. … My mother always used to tell me don't tell anyone what happens in this house."
43. This account is consistent with the histories given to Mr Griffiths and Dr Rodriguez. At the core of these accounts is the assertion by the plaintiff that her mother was, at the least, aware of the sexual and physical assaults being perpetrated upon her by the defendant, and not only failed to do anything about them, but was actively encouraging the plaintiff to conceal the fact that her father was treating her in that way.
44. The effect of these allegations is that her mother had substantial knowledge of the sexual assaults which were being perpetrated on the plaintiff by the defendant, on one occasion participated in an assault, and did nothing to stop the assaults. The allegation also included that her mother then concealed the assaults herself and told the plaintiff that she also should conceal the assaults. As well, the plaintiff said that her mother was asked to give, and perhaps gave, advice to the plaintiff as to how she should conduct herself when interacting sexually with her father, the defendant.
45. It must logically follow from these allegations, if they be true, that Ms O'Brien has given intentionally false evidence in Court when she denied that these assaults occurred and denied that she had in any way participated in any sexual assault of the plaintiff.
46. The plaintiff did not give any evidence to the effect of that contained in her statutory declaration of 21 November 2006. Although Ms O'Brien was not a defendant, that the evidence would have been admissible as relevant to the occurrence of the events alleged by the plaintiff because, at least, it would have helped to explain how the sexual assaults could have occurred in a small house without Ms O'Brien noticing. But the plaintiff did not give evidence in chief directly saying that her mother knew about the sexual assaults, other than the extent to which such an allegation was an essential element of the plaintiff's mother's involvement in the specific event earlier described.
47. I do not think such a matter, if true, is likely to have been forgotten by the plaintiff. After all she, or her lawyers, had access to the statutory declaration. She did not recount these matters in her evidence-in-chief. Although the plaintiff did give evidence that, as referred to earlier, she had participated in a sexual act upon her mother, there was no suggestion that she was cautioned by her mother not to discuss what happened in the house or outside of the house.
48. Ms O'Brien gave specific evidence-in-chief denying that, as reported to Ms Griffiths, the adequacy of the plaintiff's sexual performance had been discussed in her presence. No cross-examination took place directly relating to this account.
49. The plaintiff's claim that her mother knew about the assaults at the time they were occurring is also inconsistent with the plaintiff's diary note of 18 November 2006, the contents of which are set out at [150] above. There the plaintiff expresses the desire for her father to be put in prison and for him to tell her mother "what he does". The plaintiff's expressed desire for her father to inform her mother would be inconsistent with her account that her mother knew of the assaults. The existence of this note is another matter which casts doubt on the veracity of the plaintiff's claim.
50. I am not prepared to accept that Ms O'Brien knowingly gave false evidence and I am not prepared to accept that the plaintiff's allegations that Ms O'Brien was a knowing participant in, and connived with the defendant in, the alleged sexual assaults of the plaintiff. I am satisfied that Ms O'Brien did not tell the plaintiff to cover up the assaults, and did not counsel her about, or in any way discuss how the plaintiff should behave.
51. Another reason why I cannot accept the suggestion that the plaintiff's mother knew of the assaults and instructed, or counselled, the plaintiff to conceal them is because such conduct would be inconsistent with the evidence which indicated that Ms O'Brien was a diligent mother. Ms O'Brien, after moving to the Engadine flat, and then to Lantana Road, did not work in paid employment. She stayed at home, with her principal role being to care for her three children. Ms O'Brien supported the plaintiff (as did the defendant) in a wide range of activities when she was in primary school. When the plaintiff encountered a difficulty at high school, Ms O'Brien took the appropriate action to confront the issue and deal with it in a way which assisted the plaintiff. It was Ms O'Brien who took the plaintiff to see Ms Coote when the plaintiff started obsessing about the food she was eating and how it was cooked.
52. She was diligent in seeking out further help for the plaintiff to manage her eating disorder. In addition to taking the plaintiff to see Ms Coote, the dietician, Ms O'Brien took her to the Meridian Clinic to consult with Dr Kohn, and Ms Ruhfus. There is no suggestion that at these places Ms O'Brien was constantly in the company of the plaintiff, thereby preventing her from disclosing any matters which she wished to those doctors. If Ms O'Brien was engaged in covering up the abuse as the plaintiff asserts, then one would have expected that she would have taken steps to stop the plaintiff from giving any such history to either Ms Coote, or to Dr Kohn or Ms Ruhfus at the Meridian Clinic by insisting on being personally present throughout the entire interview. There is no evidence that she did so.
53. As well, the evidence of both Kate and Hayley Gersbach does not suggest that Ms O'Brien was anything other than a diligent and caring parent. No submission was made which identified any reason why she would treat the plaintiff any differently.
54. The conclusion which I have reached is not inconsistent with my acceptance that the plaintiff's perception described in various histories was that her mother was distant, or else that she felt neglected. That was the plaintiff's perception and not the objective reality. Nor is the conclusion inconsistent with what I have earlier found about the state of the relationship between the plaintiff and her mother (and father) during 1998 when Ms Coote made the observation she did: see [70]-[71]. That is because the deterioration in the relationship seems to have first occurred at about that time, and that deterioration was not identified as relating to any behavioural feature of Ms O'Brien which indicated that she had abandoned her role of caring for, and being responsible for, the safety and well-being of the plaintiff.
55. I reject the plaintiff's evidence that her mother knew of the sexual assaults and failed to act upon that knowledge to protect the plaintiff.
56. Another matter of weight to be taken into account in considering the acceptability of the plaintiff's evidence about the defendant's conduct, is the evidence of Ms O'Brien that whilst the plaintiff was in primary school, she was involved in the bathing and dressing of the plaintiff (and the other children). She said that she went into the bathroom when the plaintiff was showering. She also said that the defendant did not come into the bathroom where the children were bathing. Ms O'Brien said that at no time did she observe any injuries to the plaintiff of any kind, nor did the plaintiff complain to her at any time that she was sore or else was in pain. It was not suggested to Ms O'Brien that her evidence in this respect was incorrect. Nor did the plaintiff give evidence that she had complained to Ms O'Brien about any pain or soreness which she had.
57. Had the plaintiff been sexually assaulted vaginally and anally as she suggests, whilst she was still in primary school, it would be most surprising if such assaults, involving as they did penetration by her father with his penis and his fingers, did not cause soreness or pain. It may also have caused visible signs of injury by way of bruising and the like. In those circumstances I would have expected that Ms O'Brien would have observed any injury or bruising which might have existed, and that the plaintiff would have disclosed to her any complaints of pain or soreness. If the plaintiff was not walking comfortably, or else was in any physical discomfort, I would expect Mr O'Brien to have noticed. The fact that none of these things occurred supports the contention of the defendant that the assaults of which complaint is made, did not occur.
58. A further factor which counts against accepting the plaintiff's evidence as to the ongoing course of conduct involving sexual assaults is the nature of the sleeping arrangements in place at the Engadine flat and the house at Lantana Road.
59. The Engadine flat was a two bedroom flat in which Kate and the plaintiff shared a bedroom which was furnished with double bunks. The plaintiff slept on the top bunk and Kate on the bottom bunk. As Hayley was a baby at that time, she slept in a cot in her mother's bedroom. The Engadine flat was small. Any activities within it were likely to have come to the attention of anyone else in the flat, particularly as the nature of the sexual assaults described by the plaintiff involved noise and movement.
60. As was previously described, the Lantana Road house was described as small with very thin walls. It had three bedrooms. The defendant and Ms O'Brien occupied one, and the other two bedrooms were shared between the three siblings. According to Kate's statement, her earliest memory of the living arrangements at Lantana Road was of her sharing a bunk bed with the plaintiff in a room that faced towards the backyard. She said that the room had bunk beds and that the plaintiff slept in the top bunk and she was on the bottom bunk. She said that there came a time when the plaintiff was too big for the bunk bed, so she was moved to her own bed in a separate bedroom and that she and her younger sister, Hayley, occupied the bunk beds.
61. Kate gave this evidence: "I completely deny the allegations of sexual assault made by the plaintiff against dad contained in the plaintiff's statement. I shared a room with the plaintiff during some of the time that the sexual assaults are alleged to have occurred, and to my knowledge no assaults of any kind occurred. The walls at Lantana Road are very thin. I couldn't get away with anything growing up because it was so easy to hear throughout the house."
62. The plaintiff agreed in cross-examination that the Lantana Road house was a very small one. She agreed that things which were happening in one bedroom could be heard in the adjoining bedroom. In particular, she agreed that if someone was screaming or making a noise in one bedroom, that noise could be easily heard in the other bedroom.
63. The accounts given by the plaintiff of the assaults included accounts in which she recalled waking up after the assault had occurred whilst in her parents' bed. At other times, she gave accounts of her father entering her room whilst she pretended to be asleep and carrying out sexual assaults upon her. It is not particularly clear whether these assaults are said to have occurred whilst she was sharing a bedroom with her sister, Kate, or while she had or own bedroom or perhaps both. However, I am satisfied that the nature of the sexual assaults, particularly having regard to the physical movements which were required by her father when perpetrating assaults involving either vaginal or anal intercourse, must have involved a degree of noise which, having regard to the layout of the house at Lantana Road, must have been able to be heard by others in the house. I do not accept that the defendant could have entered the plaintiff's bedroom (whether she was sleeping alone or sharing a bedroom with Kate) and carried out the assaults without that being heard by, and obvious to, the others in the house.
64. Similarly to the extent that there were any assaults in the plaintiff's bedroom at the Engadine flat, I am persuaded that Kate or Ms O'Brien would have heard what was going on. I appreciate that Kate was quite young at that stage, but nevertheless I would have expected her to have made a comment at the time either to her father or to her mother and to have remembered the incident. None of these features which one would have expected actually formed any part of the evidence.
65. These conclusions about the physical environment tell strongly against the plaintiff's evidence about a course of conduct involving sexual assaults upon her by the defendant in her bedroom at night being accepted.
66. Another matter of evidence, seemingly inconsequential in content, helps the resolution of the conflicting accounts because it demonstrates a faulty childhood memory on the part of the plaintiff. In her cross-examination, the plaintiff gave evidence that she recalled an incident whilst she was living at the Engadine flat when one of her sisters, she was pretty sure that it was Hayley, ran into a big fish tank in their neighbour's apartment, cutting her head and smashing the fish tank. The plaintiff was shown her handwritten note to the effect that she herself had broken the fish tank "… @ the units in Engadine". She said in evidence that she was referring to a smaller fish tank in her mother's flat which was broken by her when she was cleaning it.
67. Ms O'Brien's unchallenged evidence was that Hayley had smashed a large fish tank in their neighbour's apartment and that the Gersbach family had never owned, or had at the Engadine flat or in Lantana Road, any fish tank at all. She also said that the plaintiff had never broken any fish tank.
68. What is clear is that the plaintiff's handwritten note has transposed who was responsible for the well-known incident (within the Gersbach family) so as to be the centre of the incident. Her note was unreliable and she must have known that it was. When confronted with that note, and the inconsistency of it with her earlier evidence, the plaintiff advanced an inaccurate explanation. In that way, the plaintiff's evidence was shown to be unreliable when recalling a childhood event - because there was, simply put, no fish tank that she broke at any time, contrary to her own diary note and to her evidence.
69. In considering the accuracy of the plaintiff's evidence about her life and the various sexual assaults which she claims her father perpetrated upon her, which she has described in histories over time, it is necessary to bear in mind the plaintiff's admitted illicit drug use.
70. In particular, it is apparent from the evidence, and the tendered medical records from about 2004 (if not earlier), that the plaintiff was smoking "Ice" (crystal methamphetamine). She was a regular user of Ice and obviously whilst under its effect, behaved in ways which were entirely inappropriate. There are a number of instances where it is apparent that whilst affected by the drug or else whilst recovering from its use, the plaintiff has told mistruths to people. Whilst it is not directly recorded that the plaintiff was observed to be heavily affected by illicit drug use during any counselling sessions with Mr Griffiths or Dr Gordon, I cannot completely exclude the possibility that some inaccurate or exaggerated histories may have been given whilst the plaintiff was under the effects (to some extent) of her drug use.
71. I have kept in mind this factor in weighing up the reliability of the histories given by the plaintiff, and whether her evidence is acceptable.
72. A central submission of the plaintiff was that the existence of the diagnosis that she suffered from BPD was proof of the fact that the sexual assaults had occurred. This was a substantial reason, it was submitted, why the Court should accept the plaintiff's case.
73. As the review of the evidence on this topic shows, Dr Phillips' view must be taken to be that the plaintiff's BPD had a cause other than childhood sexual abuse (because he concluded that the abuse had not in fact occurred).
74. Mr Griffiths' evidence suggested that there was sufficient evidence of perceived traumatic or adverse events in the plaintiff's life, without any sexual assaults occurring, which could constitute factors of sufficient severity to cause BPD.
75. Dr Rodriguez gave evidence on this topic which I thought was balanced. The evidence which he gave, set out at [360] - [365] above, made it clear that there might be a sufficient factual basis for the identification of a cause for the plaintiff's BPD other than sexual abuse.
76. The basis for Dr Rodriguez's opinion on the question asked had these elements in the plaintiff's perception: 1. the administering of corporal punishment during primary school on more than one occasion over a period of time; 2. the corporal punishment caused distress to the plaintiff; 3. she hated and was fearful of her father; and 4. her mother was distant and disinterested in her.
77. The plaintiff's evidence-in-chief included specific reference to the fact that whilst she was in primary school she was the subject of beltings by her father with his belt. She described it as happening often, without stopping as she grew older. In cross-examination, the plaintiff agreed that she was very upset when she got "the belt", and that she remembering being scared of her father. She also said that she regarded him as a very strict disciplinarian who was curtailing her lifestyle and, by the time she was 14, she hated her father for that.
78. In a history which she gave, the plaintiff described her relationship with her father as "acrimonious". In her diary she recorded that she hated her father, writing "… may he rot in hell". It is unclear to what this specifically refers, but clearly she did not like her father.
79. I have earlier concluded in [72] above, based upon the reports of Ms Coote, that the plaintiff felt that she had been effectively abandoned by her parents, and did not feel able to seek advice from her mother. As well, the plaintiff's own statutory declaration, a part of which is extracted at [149] above, provides adequate factual support for the final element in the question posed to Dr Rodriguez.
80. I am satisfied that the question to Dr Rodriguez was soundly based in the oral evidence and in the factual material before the Court, and that his answer is one which ought to be accepted.
81. Whilst it is unnecessary for the purpose of this judgment to make a factual determination of what actually caused the plaintiff's BPD, I do not accept the case for the plaintiff that in the circumstances proved, there was no possible, or reasonably available, cause of her BPD other than the sexual assaults upon her by her father.
82. In my view, the evidence reviewed provides for a cause, or causes, other than the sexual abuse. In those circumstances, I am unable to conclude that the plaintiff's diagnosis of BPD is sufficient to prove that she was sexually abused by her father as she claims.
83. That being so, although the fact that the plaintiff has been diagnosed with BPD is consistent with her having been sexually abused, it does not prove that fact. If proof of the plaintiff's sexual abuse, aside from the existence of her BPD, is inadequate, then the fact of her being diagnosed as having BPD does not establish that the sexual assaults occurred as she claims.
84. In summary, the totality of the foregoing analysis, and taking into account the denials of the defendant and Ms O'Brien; the significant lack of corroboration; and an evaluation of the expert evidence, particularly about the possible causes of BPD, has led me to conclude that I do not accept the plaintiff's evidence that she was in any way sexually assaulted by the defendant, or that the defendant perpetrated physical assaults upon her of a type which establishes her claim for damages.
85. It follows that the plaintiff's claim must fail.
86. I can see no reason why upon dismissal of her claim, the plaintiff should not pay the defendant's costs. Orders to give effect to these conclusions will be made.

Damages

1. Although the plaintiff has not succeeded in her claim, it is appropriate to assess, on an entirely hypothetical basis, the amount of damages to which she would be entitled if her claim had succeeded.
2. The provisions of the Civil Liability Act 2002 do not apply to the assessment of damages claimed in this case because the claim for damage arises from "… sexual assault or other sexual misconduct committed by the person …" within the meaning of s 3B(1)(a) of the Civil Liability Act.
3. The effect of s 3B(1)(a) is that the whole of the Civil Liability Act is excluded and does not apply in respect of the existence of liability on the part of the defendant and any awards of damages, except for the provisions of s 15B and s 18(1)(c).
4. Section 15B regulates an award of damages in respect of a claimant's capacity to provide gratuitous domestic services to the claimant's dependants. The damages provided for in s 15 represent a modified form of the damages which were said to be allowable at common law by the NSW Court of Appeal in Sullivan v Gordon [1999] NSWCA 338; (1999) 47 NSWLR 319, which was overruled by the High Court in CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1. Section 18(1)(c) precludes an award of interest on damages of the kind permitted under s 15B.
5. Accordingly, the damages claimed in this case are to be assessed substantially in accordance with the common law, except for the claim for damages for gratuitous domestic services for the care of the plaintiff's dependent daughter.
6. Although I have found that I am not persuaded that the plaintiff has established liability against the defendant, it is appropriate nonetheless to assess the quantum of damages which would have been awarded if I had accepted the plaintiff's evidence that she had been sexually assaulted in the ways she described, and that these sexual assaults, either individually or as part of a course of conduct, have caused or materially contributed to the development by the plaintiff of BPD.
7. This is necessarily a hypothetical exercise and involves accepting as true and accurate the plaintiff's history of what happened to her, how she felt and how she reacted. It also involves accepting the plaintiff's case that the sexual assaults to which she was subjected as a child caused, or materially contributed to, the development of her BPD. This is contrary to my findings, but nevertheless damages would need to be assessed upon the basis that those findings were erroneous.
8. It is fair to say that the submissions of the parties on how the Court may approach the assessment of damages, should it find that the plaintiff made out her claim for liability on the part of the defendant, were spare and of the most general kind. They were not particularly helpful. Nevertheless, the Court needs to do its best on that sparse material to assess damages.
9. According to the Third Amended Statement of Particulars, being the most recent one filed on 2 December 2016, the plaintiff claimed that as a consequence of the sexual assaults she suffered from a BPD with features of PTSD with associated bulimia, drug and alcohol abuse, self-harm and other features of a disrupted personality. The disabilities which she claims were consequent upon these disorders.
10. The plaintiff claims compensatory damages, aggravated damages and exemplary damages. She has made a claim for past and future medical, hospital and like expenses; she does not make a claim for loss of earnings or loss of earning capacity; she has made a number of claims for care. She maintained these claims under those heads of damages at the conclusion of the proceedings.
11. I have largely referred to accounts given by the plaintiff to various practitioners of the history of the assaults to which she was subjected. I am now proceeding upon the basis that those accounts would be accepted and the effects upon the plaintiff also accepted. There is no need for me to separately repeat those accounts here.
12. In his first report of 12 May 2015, Dr Gordon, who is the only doctor presently treating the plaintiff, described her presenting symptoms at that time in this way: "Feels depressed, unable to cope, often overwhelmed by emotions, finds herself impulsive and out of control quite frequently. She has little control over her angry impulses … She does not have these feelings about her daughter. She cannot trust people. She suffers from insomnia. She is smoking excessively (over 30 cigarettes a day). She is unable to control her alcohol consumption and is frequently intoxicated. Incapable often just getting things finished." (sic)
13. Dr Gordon records that over the years the plaintiff has been treated with antidepressants, anxiolytics and occasionally anti-psychotic agents. He recorded that the plaintiff had had multiple hospitalisations for anorexia, bulimia and panic disorders. I add to that description that she had also had a number of visits to, and admissions to hospital to treat her attempts at self-harm. The details of their visits and admissions have been set out earlier.
14. Dr Gordon expressed the view that without ongoing psychiatric treatment, it would be impossible for the plaintiff to maintain any consistent long-lasting occupation. Any such occupation would be fraught with absenteeism, impulsive behaviour, and a significant inability to concentrate for any length of time, which would result in difficulties in her retaining her employment.
15. He was asked what impact the plaintiff's psychiatric illness would have on her capacity to be a spouse and a mother. He expressed this view: "Without psychiatric treatment, the ability to maintain a constant caring relationship with anyone be it partner, or child, is markedly impaired. With ongoing treatment it should be possible to help Jayne to manage her underlying personality difficulties whilst repair occurs. Medication in the form of mood stabilisers, and anti-depressants, help stabilise the personality structure whilst psychotherapy proceeds. Ultimately these medications will no longer be needed."
16. It is clear that the plaintiff obtained considerable treatment at the hands of Dr Gordon. The counselling sessions were frequent and intensive. Dr Gordon expressed the view that there had been a marked improvement over time in the plaintiff's condition. Dr Gordon was asked in November 2016 to express a view as to the plaintiff's need for lifetime medical and hospital care. He suggested that psychotherapy would need to continue at the rate of three times per week. Each session at that time cost $490. By the time he gave evidence, Dr Gordon indicated that the sessions had reduced in frequency and ultimately would not be required each week.
17. Dr Gordon thought that there was a high probability of intermittent hospitalisation, perhaps on two or three occasions in the future course of her life. Dr Gordon speculated that the plaintiff's future cost of medication would be between $500 and $1,000 per year.
18. On the question of future care, Dr Gordon said: "At this stage, because of her underlying significant personality disorder, Jayne would certainly benefit from someone regularly available, perhaps on a twice weekly basis to help organise her way of life. The idea of a 'drop in' person of mature age being available to her is an excellent idea."
19. Dr Rodriguez recommended that the plaintiff have long-term psychotherapy to assister her in controlling her symptoms of PTSD, anxiety, depression and personality difficulties. He suggested a cost for a one hour consultation of between $300 and $400 for the therapy which he described as needing to be intensive.
20. Although the Statement of Particulars contained a claim for the cost of assistance and the provision of care to her child, no evidence was adduced from the plaintiff on that subject. The plaintiff's daughter was born in February 2014. It is quite unclear from all of the evidence whether the child lives with the plaintiff or with her former partner, who is the child's father, or else perhaps with another member of his family.
21. The extent to which the plaintiff has contact with her daughter was unexplored in the evidence, as was the time she spends with her daughter giving her care. In those circumstances there is simply no factual material of any kind upon which any award under s 15B of the Civil Liability Act could be made.
22. At the time she gave evidence, the plaintiff was taking a mild tranquiliser which had been prescribed for her by Dr Gordon, but was otherwise not taking any medication.
23. In dealing with the question of the provision of care to the plaintiff herself, such as by having a mature-aged person call in on her a couple of times a week or else be available to be contacted by the plaintiff for assistance with organising her life and activities, and generally helping with organising her affairs, there was no evidence as to the availability of such a carer, nor of the cost for the provision of services from such a person. Whilst this may be "an excellent idea" as Dr Gordon suggested, the evidence does not suggest how or by whom such a service can be provided.
24. As can be observed, there is very little evidence, let alone detailed evidence, of the kind usually made available to assist in the determination of a sum for damages.
25. Nevertheless, that is the state of the evidence and the Court must do its best in all of the circumstances.

General Damages

1. A sum for general damages is one which is allowed by a Court to compensate a plaintiff for all of the physical harm and mental harm suffered by that plaintiff as a result of the conduct of the defendant.
2. It was not suggested that the Court should isolate out each occasion of sexual assault and make an award of damages separately for each. Rather, the plaintiff's submissions seemed to proceed upon the basis that having regard to all of the assaults which occurred throughout the plaintiff's childhood, and in light of her current condition which, it was submitted, was causally related to those assaults, the Court should proceed by a single award of damages. This approach seems to reflect what occurred in Varmedja v Varmedja [2008] NSWCA 177 at [154]. It also accords with the approach adopted in this court in XY v Featherstone [2010] NSWSC 1366.
3. It is necessary also to consider the question of aggravated damages which are claimed. Aggravated damages are a form of compensatory damages awarded for injury to a plaintiff's feelings "… caused by insult, humiliation and the like": Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1 at [8].
4. In New South Wales v Riley [2003] NSWCA 208 at [127]; (2003) 57 NSWLR 496 at 528, Hodgson JA considered what distinguished aggravated damages from ordinary compensatory damages.
5. At [130]-[131], his Honour said: "130 If, in addition to ordinary compensatory damages for injury to feelings, aggravated damages are to be awarded, then plainly it is important to avoid double counting; and the question arises, what can the additional aggravated damages be compensation for when injury to feelings have already been included in ordinary compensatory damages? 131 In my opinion, the only principled explanation must be along the following lines. It is extremely difficult to quantify damages for hurt feelings. In cases of hurt feelings caused by ordinary wrong-doing, of a kind consistent with ordinary human fallibility, the court must assess damages for hurt damages neutrally, and aim towards the centre of the wide range of damages that might conceivably be justified. However, in cases of hurt to feelings caused by wrong-doing that goes beyond ordinary human fallibility, serious misconduct by the defendant has given rise to a situation where it is difficult to quantify appropriate damages and thus where the court should be astute to avoid the risk of under-compensating the plaintiff, so the court is justified in aiming towards the upper limit of the wide range of damages which might conceivably be justified."
6. In practical terms, this has the effect that if the Court were to make an award for general damages which was towards the upper end of the available range, then that would be sufficient to take account of any aggravated damages and would avoid the risk of double-counting. This is the approach which I will take in this case.
7. Taking all of the facts into account and, in particular, the significant disruption to the plaintiff's upbringing and her adult life, and her ongoing personality disorder, I would award $300,000 for general damages.
8. Of this, $200,000 represents the past. It is appropriate to calculate interest on this amount at 4%: see MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 657. I consider it reasonable to regard the pain and suffering for the past as having been sustained from the time the plaintiff turned 14 - which was a time when most of the assaults had occurred and before her eating disorder manifested. As the plaintiff is now 35 years old, this represents 21 years of interest at 2%, which amounts to $84,000.
9. Exemplary damages are awarded to punish the defendant for engaging in conduct which can be described as showing a conscious and contumelious, or flagrant, disregard of the plaintiff's rights: Lamb v Cotogno at [20]; Gray v Motor Accident Commission at [12] and [21]. Exemplary damages would not generally be awarded where a perpetrator of sexual assault had been sentenced to a term of imprisonment. Here, there was no police prosecution, and the defendant has not served a term of imprisonment. It is appropriate to award exemplary damages which I would assess in the sum of $50,000.
10. The only evidence of out-of-pocket expenses on the part of the plaintiff was the outstanding amount to Dr Gordon of about $8,000. This amount ought be included in the award of damages.
11. As to the future, it is apparent that the plaintiff will require psychotherapy for some years, at least once, and probably twice, per week. In those circumstances, if one allowed the sum of $400 for each psychotherapy session, it would suggest that a not unreasonable allocation would be $1,000 per month for the next 10 years.
12. Applying the 3% multiplier, this would give a multiplier of 451.8 which, rounded up, results in a sum of $115,000 for future psychotherapy. I allow a modest sum for future medication of $10,000.
13. Accordingly, if damages were awarded they would constitute the following: General Damages including Aggravated Damages $300,000 Exemplary Damages $50,000 Future Therapy $115,000 Past and Future Out of Pocket Expenses $18,000 Interest on Past General Damages $84,000 TOTAL $679,950

Orders

1. I make the following orders: 1. Judgment for the defendant. 2. Plaintiff to pay the defendant's costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 November 2018