James v James [2020] NSWDC 797 | Case summary

20 February 2018

The second pleaded event occurred on 20 February 2018. The pleading is this with omissions: "7. On 20 February 2018 the defendant assaulted, verbally assaulted and physically battered the plaintiff without her consent or just cause or provocation during a disagreement in relation to the defendant's asserting that the plaintiff failed to complete household chores. PARTICULARS OF VERBAL ASSAULT 8. The defendant caused the plaintiff to fear that she would be battered by the defendant by directing the following phrases to the plaintiff in an aggressive and violent fashion: [I omit the terminology pleaded as between (a) and (h).] BATTERY 9. The defendant physically battered the plaintiff as follows: (a) Shoulder-charged the plaintiff between six and ten times to her shoulder and arm. (b) Spat at the plaintiff with spittle landing on her hand and in front of her hand. (c) Kicked the plaintiff approximately ten times to the right leg between the hip and the knee wearing steel-capped boots. (d) Hit the plaintiff with an open palm in excess of 20 times to both her arms and head. (e) In addition to the actions complained of in (d) above, slapped both sides of the plaintiff's face with open palms at least twice causing pain to her jaw and ringing in her left ear. (f) Pulled the plaintiff's hair numerous times to force her into position such as to make her get off the ground or be held up against a wall. (g) Poured bottles of water and soft drink over the plaintiff while she was on the ground. (h) Grabbed the plaintiff around the back of the neck and attempted to smash her head onto a glass table causing the plaintiff to strike her diaphragm [on] the metal frame of the glass table causing pain. (i) Pushed the plaintiff against a wall. (j) Pushed the plaintiff off a chair which resulted in her landing on glass and cutting her arm. (k) Pulled the plaintiff by her arms off a chair." All those assaults are admitted by the failure to file a defence in accordance with the rules.
As I have already said, there is an audio recording of the events of 20 February 2018 made on the plaintiff's mobile phone. Despite a technical breach of the Surveillance Devices Act 2007, for reasons which I have already given, I permitted the tender of that audio recording pursuant to s 138 of the Evidence Act 1995. The playing of that tape took just over one and a half hours. There were pauses in it when the plaintiff was absent from the room in which the assault took place. I understand that room to be some form of home office. What I have heard has been partially listened to by Dr Klug who described it as "deeply disturbing." To me that is somewhat of an understatement. I would describe what I have listened to as vile, foul, loathsome and disgusting. I made some notes as I was listening to it. The complaint made by the defendant about the plaintiff was that she was failing to keep his house clean and this was some form or pattern of behaviour on her part. I shall not go further than to say this. Part of the history given by the plaintiff to Dr Klug is this: "She said her husband drinks a lot of alcohol and uses 'ice' (crystal methamphetamine) … 'and we were using ice when the assault happened.' She said that they were also using cocaine and cannabis. She said, however, on the morning of the assaults of 20 February 2018 they had run out of 'ice.'" What I heard could be described as an episode of "ice rage." It would appear from the tenor of what was said, the tone in which it was said and the rapidity with which it was said that the defendant may well have been still under the influence of crystal methamphetamine.
I heard these types of words: "fucking joke," "bitch," "shut the fuck up," "leave, bitch!" "fucking cunt," "fucking lazy bitch," "fuckwit," "get off your fat arse," "fucking mole." At one stage one can hear the voice of the couple's daughter. There was then a reference to the calling of police and statements were made to suggest that the plaintiff and her children would be leaving the house. However, the tirade continued with more foul language. On this occasion the defendant called the plaintiff by another number of names including "cunt of a wife," "fat slut," "dead cunt," "lying bitch," "fucking bullshit artist," "idiot," "fucking lazy cunt."
During these tirades there are noises strongly suggestive of blows being struck. Whether they be slaps or kicks is hard to tell. At one stage what was being said by the plaintiff and noises she was making in what appeared to have been assaults were quoted back at the plaintiff by the defendant in mocking tones. At one stage one can hear the plaintiff crying and then sobbing and then hyperventilating. It is clear that before the end of the first of the four tracks that the plaintiff was down on the ground being ordered by the defendant to sit up but then he accused the plaintiff of "being an actor." Before the first track ends my note is that the defendant called the plaintiff "a lying two-faced fucking cunt."
The second track contains a lot of mocking commentary by the defendant over what the plaintiff was doing which was crying and sobbing. In the second track the defendant threatens to drag the plaintiff out of the house by her hair. He continually tells her that she was "full of shit." Again, there were multiple instances of demanding that she get up and leave or that the defendant would drag her out of the house. During the second track the defendant told the plaintiff to "pack up her shit and leave." On this occasion he called her, amongst other names which I will not continually repeat, a "slag" and a "smartarse mole." At one stage there is an intervention by a male. The first male to intervene was the son of a friend of the defendant who was residing at the time in a shed on the macadamia plantation. However, that male is told to "mind his own business" and to leave.
At the commencement of the third tape the plaintiff can be heard hyperventilating and after further bullying the defendant applauds what the plaintiff is doing as she was most probably on the ground sobbing, weeping, hyperventilating. There was also derision of the plaintiff by the defendant and the defendant sought to justify this by pointing out that she had attempted previously to kick him in the groin. That may be a reference to what occurred in September 2017. It is the defendant who keeps on telling the plaintiff to call the police. He wanted the police called because he thought the plaintiff was "in the wrong."
A second male intervention happens during track 3. The person who intervenes is the plaintiff's elder son, who most probably had again been called to the farm by the daughter. The son demands that the couple stay away from each other. That happens towards the end of the interaction.
The children left the property that afternoon presumably with the elder son and the plaintiff told me that she left the property on the following day. No doubt she had to pack up her personal effects and the personal effects of their children. Apparently the police intervened on 20 February but there was no arrest of the defendant at that time.
The plaintiff and her children were living for a while with the plaintiff's parents and are now living elsewhere in the Lismore district. The couple have been divorced and there have been proceedings for the settlement of their property rights in the Federal Circuit Court of Australia.
The defendant has also been prosecuted. According to the statement of claim he was charged with common assault for one assault on 20 February 2018 and faced two counts of assault occasioning actual bodily harm for other events on 20 February 2018. It is to those three counts that the defendant pleaded guilty in the Local Court, and as I understand it, he was sentenced by a Local Court magistrate sitting at Ballina to an Intensive Corrections Order for a period of 16 months expiring on 30 December 2019 and an Apprehended Violence Order was made for a period of two years.
On this occasion the plaintiff sought medical treatment. Since 26 April 2016 the plaintiff had been attending upon the Lismore Clinic in Molesworth Street, Lismore. On Monday, 26 February 2018 the plaintiff consulted Dr Lauren Adams at that practice. According to the surgery's notes the reason for the contact was acute back pain and barometric trauma to the left ear. The doctor's notes continue thus: "Long history of abuse in her 17-year relationship with her husband. Verbal until recently. A few episodes of physical violence. Last episode five days ago at home. She was punched and pushed to the floor, against a wall and glass tabletop. Left ear ringing and feeling blocked since. No discharge. Flare-up of chronic back pain, no specific area of pain, not using analgesia, wants to avoid Endone. No loss of consciousness or neurological symptoms. No other injuries. Currently staying with her parents. Feels safe. Police involved. Getting counselling and support and will be getting help with relocation." On examination Dr Adams found clear linear bruises to each upper arm. She found no evidence of a head injury. She examined the plaintiff's back movements and while her range of movements was normal her spine was generally tender in midline and in the musculature parallel to the midline of the back. On examination of the left ear the tympanic membrane or eardrum was intact but it was red compared to the appearance of the right ear. The doctor thought the plaintiff may have suffered from some conductive loss of hearing. She arranged to review the plaintiff in a week and suggested that if the symptoms in the left ear were not settling an audiogram should be carried out. The plaintiff was given medication seeking to control her back pain.
The plaintiff returned to see Dr Adams on 5 March 2018. By that stage the plaintiff's left ear was feeling better but she still had lower back pain and was taking painkilling medication. The next review by Dr Adams was on 27 April 2018. In the meantime there had been some minor injury to one of the plaintiff's fingers which she had cut on broken glass. On this occasion the plaintiff complained of insomnia which the doctor, and probably the plaintiff, thought were related to anxiety. However, the plaintiff also gave a long history of poor sleep which she thought was related to domestic violence over many years. There was reference to going to court within the next three weeks. The plaintiff was very stressed.
The plaintiff saw Dr Adams again on 28 May 2018 and, inter alia, complained of depression which was thought to be reactive to domestic violence. The plaintiff told Dr Adams that she had no access to personal finances, that her husband had moved money into his account and frozen private health insurance and was not paying any money to support the children. There was reference to a court case pending in June 2018. The plaintiff had continuing symptoms of depression and anxiety persisting since 20 February 2018. On that occasion the plaintiff told the doctor that she was not feeling well enough to look for work.
There was no further relevant attendance upon Dr Adams or any doctor at the Lismore Clinic. That may well be because the plaintiff changed doctor and has, since 3 June 2019, been seeing Dr Michele Blandford at the Keen Street Private Clinic. The initial reason for the plaintiff's presentation to Dr Blandford was for depression. By this time the plaintiff was being prescribed both Endone and Endep and there were various gynaecological problems as well. There was a discussion about the plaintiff's prior use of illicit drugs and about the undesirability of using opiate-based medication.
It appears that the plaintiff has been regularly attending Dr Blandford since that time and amongst other things complains about her mental health as well as other problems affecting her, in particular a gynaecological complaint which has required investigation and specialist attention. There was one setback on 28 October 2019 when the plaintiff told the doctor that "things fell apart with court recently" and an attempt to sell the matrimonial property had fallen through. However, that appears to have been remedied by early February 2020, two years after the assault with which I am currently dealing.
Again, there has been counselling by Dr Blandford and a reference to a counsellor. There is in evidence a letter from Angela Andrews, a mental health social worker, upon whom the plaintiff has been attending since April 2018. In a report bearing date 4 June 2020 Ms Andrews reports that she had had 28 sessions of counselling with the plaintiff since April 2018. The report of Ms Andrews contains this material: "Shannon said that her husband began with aggressive outbursts when her daughter was born. She said that he was verbally abusive, 'yelled and yelled,' and would 'swear horribly' to her and her children. She indicates that in the latter years of the relationship the situation deteriorated. She said he became increasingly violent and aggressive if things didn't go his way. She said that there had been violent outbursts that her children had witnessed. Shannon presented in shock and a distressed state, clearly shaken by the violent incident with her husband that she found terrifying. She was distressed about police involvement and having to move her family to her parents' home. She was overwhelmed with thoughts about how the situation came about and how frightening it had been. Shannon was also suffering extreme anxiety concerning her children's mental state considering what they had witnessed and now receiving distressing and malicious texts from their father. Shannon became depressed about her situation. At first, she thought things might settle and that she would be able to access her home and belongings but it soon became evident that her husband would prevent this from happening. She was too scared to approach the home without police protection and this seemed impossible to arrange." The report goes on to talk about the downfall of the family's macadamia nut farming business and depression and anxiety arising from her homelessness and her children's mental state.
After these events the couple's son has been diagnosed with autism spectrum disorder (ASD) or Asperger's syndrome as it was once called and agoraphobia and some "sexual orientation" confusion. Their daughter has also been seeing a psychiatrist and psychologist and is on antidepressant medication. Their son finished school at the end of 2018 and although their daughter is now 15 years old, she is doing her schooling by "distance education." It would appear that they may have been affected by the breakup of their parents' marriage to a large extent.
As I said, the plaintiff has been sent to see Dr Peter Klug, a forensic psychiatrist. Commencing on p 4 of his report he sets out the plaintiff's current symptomatology in some detail. It is not necessary for me to quote it all. However, the headings could be summarised thus: • Hypervigilance • Generally raised level of anxiety • Current panic attacks • Marked stress with the panic attacks • Ongoing and overt preoccupation with the assaults • Social withdrawal • Marked difficulty in trusting certain friends because of their relationship with the defendant • Intense flashback experiences • Chronic depression • Severe superimposed depressive episodes • Markedly disturbed sleep patterns • Hyperacusis (noise sensitivity) • Recurrent nightmares • Marked concern how she would interact if she met the defendant accidentally on the street • Partial anhedonia (a partial loss of the pleasure of living)
Dr Klug also took a history that amongst the plaintiff's current medications are Endep and Amitriptyline that she takes at night and diazepam a tranquilliser as well as oxycodone for her dental and back pain. The plaintiff has poor dentition; one of the conditions for which she is being treated by Dr Adams and Dr Blandford is dental problems. When giving a history of drug use the plaintiff told Dr Klug that she had not used any illicit drugs since 19 February 2018 which ties in with the other history I have quoted. Dr Klug's opinion is this: "In my opinion, as a consequence of the events of February 2018 which were both psychologically and physically traumatic, Ms James has suffered from a chronic post-traumatic stress disorder, a recurrent major depressive disorder, and recurrent panic attacks. There is a past history of poly-drug abuse which is now in remission. A post-traumatic stress disorder is a severe trauma-related illness in response to a traumatic stressor or stressors. The events of February 2018, in particular, in my opinion can be regarded as traumatic stressors. These stressors were in the context of long standing domestic violence in various forms prior to that. Her recurrent panic attacks are episodes of severe anxiety and tend to be triggered by reminders of the events of February 2018. In my opinion they can be incorporated into the diagnosis of post traumatic stress disorder as a form of autonomic hyperarousal. A major depressive disorder is a major mood disturbance which bears a high statistical relationship with increased levels of morbidity and mortality by suicide. It is a common comorbid diagnosis with post-traumatic stress disorder. There have been other recent stressors in her life in the form of her stepfather being in [an] intensive care unit and severely unwell, having to support her mother who is very distressed, and various concerns about her children. Nevertheless, there were no overt mental health issues prior to the assaults in February 2018. It is my opinion that these psychiatric conditions are a direct consequence of the severe domestic violence of February 2018 but are in the context of long-standing domestic violence in various forms prior to that." The last qualification made by Dr Klug is unnecessary. The mental health conditions which he diagnoses were clearly caused by the events of 20 February 2018, to which the Court has listened to with great alarm.
In answer to one specific question Dr Klug said this: "Clearly, her ongoing psychiatric problems will have a continuing adverse impact on her earning capacity. Her various symptoms are likely to substantially disrupt her capacity to work in either a part time or full-time capacity in the open labour market." The plaintiff has not been able to find any work for herself but does not believe at the current time she is in a position to look for work. When this case is finished no doubt she can try to put the events of the past behind her and try to get on with her life. Not having to relive the events by coming to Court and telling the Court of them will no doubt assist in her recovery.
Post-traumatic stress disorder can persist indefinitely, that is, it can be permanent. It is well-known that in the eastern suburbs of Sydney are many elderly Jewish ladies who survived the Holocaust and still suffer from post-traumatic stress disorder as a result of their experiences in eastern Europe during the Nazi occupation. However, those ladies are able to live a normal life albeit with their psychiatric trauma still intruding into their daily living.
The plaintiff does not seek exemplary damages on the basis that the defendant has been punished by the processes of the criminal law for the events of 20 February 2018. However, the plaintiff does seek aggravated compensatory damages. The plaintiff's experience on 20 February 2018 was shocking, deeply offensive to her, deeply affecting her self-worth and her dignity. She has a persisting problem, importantly a persistent post-traumatic stress disorder which is likely to affect her for many years to come.
This case is governed by the common law rather than by the Civil Liability Act 2002 because the plaintiff's actions are for deliberate torts. Whilst the deliberate torts are actionable per se without proof of damage, here there is grave damage proven to the Court's satisfaction. Doing the best I can, I award the plaintiff $140,000 in compensatory damages and I award her $40,000 in aggravated damages such that she is entitled to $180,000.
The plaintiff also claims past and future economic loss. Her claim for out-of-pocket expenses and future treatment expenses has been abandoned. The claim is a modest one. The plaintiff has tendered as exhibit G extracts from the Clerical and Administrative Employees (State) Award which prescribes minimum rates taking effect on 12 July 2005. Based upon those rates the plaintiff makes these submissions: "27. Table 1 of the award which is within the [tender bundle] provides for adult wages from 12 July 2005. If one assumes the plaintiff would only be employed at the second lowest level, that is, a weekly payment of $544.50, that equates to an hourly rate of $14.33. 28. The plaintiff's evidence is that she would have worked three days per week. That would be a total of 21 hours per week. That is a loss of $300.91 per week. To make allowances for the vagaries and the vicissitudes of life, it is submitted that it should be found the plaintiff would have: (a) worked every week for the remainder of 2018 financial year being 18 weeks. That equates to $5,416.38. It is submitted that no tax should be deducted as the income is below the $18,200 threshold applicable for that year; (b) for the 2019 financial year ending 30 June 2019, 44 weeks giving a total economic loss for that year of $13,239.93. That is again below the tax threshold for that year and again, it is submitted that no tax should be deducted; (c) for the 2020 financial year ending 30 June 2020, 44 weeks giving a total economic loss for that year of $13,239.93; (d) for the period 1 July 2020 to 12 November 2020, being a total of 23 weeks and 2 days, a claim is only made for that period totalling $6,491.53. That is again below the tax threshold for that year and again, it is submitted no tax should be deducted. 29. The total amount claimed for past economic loss is $38,387.77."
As I said, that is a modest claim. When I consult the current edition of the Furzer Crestani tables as at 1 April 2019 I know that the average wages for all females as at May 2018 were $976.30 and as at November 2018 were $996.30. That is to be compared with full-time female earnings of $1,433.40 in May 2018 and $1,466.50 in November 2018. When I go to the average weekly earnings for women in industry, average earnings in the retail trade for women were $670.30; in administrative support services, $901.70; in arts and recreation, $746.30; and for otherwise unlisted services, $772.40. It is clear from average full-time earnings that those earnings are well below full-time earnings which hover in the $1,300 to $1,200 per week range. Quite frankly, it is very difficult to find many jobs these days that remunerate at less than $20 per hour. Working 21 hours at $20 per hour would return one over $400. I am prepared to allow the plaintiff what she claims for past economic loss. I shall round that up to $40,000 rather than try to calculate interest on sums over broken periods.
As to the future, I am asked to award a "buffer." Originally these "buffers" were known as "cushions". However, the cushions became so large that I had the habit of referring to them as "lounge suites". "Cushions" have been replaced with the word "buffer." The plaintiff's ability to earn may be compromised well into the future. Doing the best I can and bearing in mind that if she were able to find work for 20 hours per week she could probably earn about $20,000 per annum, I believe the appropriate buffer to award is $100,000. I would allow interest on $80,000 of the sum awarded for general damages for the event of 20 February 2018 from 1 February 2019 so that it is averaged out over the period to date. That amounts to $7,200. If my mathematics be correct, the total sums I have awarded is $358,520. Is that right?
HIS HONOUR: Thank you. For those reasons, I give verdict and judgment for the plaintiff against the defendant for $358,520. I order the defendant to pay the plaintiff's costs.

James v James

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