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[2013] NSWDC 251
District Court of NSW
2013-09-24
Original judgment source is linked above.
Introduction 1The plaintiff claims damages from the defendant who is her father arising from his committing serious sexual assaults against her from the time she was four or five years old until the time she was 13 years old. He has admitted his guilt to a series of charges preferred against him and is now in gaol following a sentence of imprisonment passed upon him earlier this year by another Judge of the District Court of New South Wales. 2The plaintiff is an attractive, though fragile and distressed woman of 54 years. The Statement of Claim rolls up all the sexual assaults in a single cause of action which is particularised. This, as a matter of pleading, is clearly wrong since each individual assault was a separate tort and in respect of each one there is a separate cause of action. However, that will not have any effect on the outcome of the proceedings. I attach a schedule of the various offences committed on the plaintiff by the defendant. All are serious offences. Carnal knowledge of a child under the age of 10 years rendered the perpetrator liable to a sentence of life imprisonment. The offender could also have been charged with rape, which also carried a maximum sentence of life imprisonment. 3The defendant pleaded guilty to a number of charges, including carnal knowledge of a girl under the age of 10 years, when he was brought before the District Court for sentence and has failed to file any defence in the current civil proceedings. As a result, there judgment was entered against him and I am required to assess damages. 4The plaintiff seeks general damages as compensation for the wrong she suffered and aggravated general damages because of the nature of the sexual assaults. She does not seek exemplary damages because the defendant is serving a term of imprisonment and exemplary damages cannot be awarded to her (See Gray v the Motor Accident Commission (1998-1999 196 CLR 1.)
Facts 5The plaintiff was the victim of most appalling sexual assaults from the time she was four years old until she was nearly 14 years old. The assailant was her natural father. 6Each sexual assault and each accompanying physical assault could have been separately pleaded and she would have been entitled to damages in respect of each individual assault. The initial attacks on her involved him coming into her bedroom pulling out his penis and making her rub it. He would also force her legs apart and perform cunnilingus on her. This would be followed by fellatio, performed roughly and in which he held her hands down, forcing his penis into her throat until she found it difficult to breathe. This course of events occurred many times between the time she was five years old and the time she was six years old. Like most paedophiles, he told her that this was their little secret, he did it because he loved her and she wanted it, but if she told anyone, he would have to hurt her. 7On a number of occasions during these early years, her mother walked in while sexual activity was going on, but said nothing, merely taking her elder sister out of the flat in which the family lived, presumably so that the plaintiff's father could continue to abuse her. 8The plaintiff was born in 1959 and the abuse would have started in 1963 or 1964. At the time, the early sexual acts would have rendered him liable under section 76 of the Crimes Act 1900, as amended, to prosecution for indecent assault, for which he would have been liable to imprisonment for 5 years 9When she was about six years old, abuse of this type continued, but he also would insert a finger in her vagina while he was committing fellatio on her. He frequently ejaculated into her mouth and compelled her to swallow the ejaculate. From time to time she would vomit and that would get her into trouble with him. When these sessions concluded, he would order her to clean herself up and would threaten her with physical harm if she did not do so. These types of sexual acts continued regularly until she was eight years old. 10He also forced his penis so far down her throat that that she felt she was going to choke. 11The sexual activity I have so far related, caused her to cry and it also had the effect that she could not form relationships with other children. At school she had no friends and sat alone at meal breaks, unless her sister was there. She could not concentrate in classes and was unaware of what was being taught. She also began to engage in inappropriate sexually explicit behaviour such as rubbing her genitalia against the corners of desks. At the age of eight her father began telling stories of his having extramarital sex with a number of women and what he did with them for example shaking up a bottle of drink, inserting it into the vagina of a woman and then sucking it out. When she was eight years old, he placed a soft drink bottle in her vagina having shaken it up and then went down and sucked her vagina to get out the drink. He also claimed to her that he inserted fruit tingles into the vagina of a woman and then used his tongue to suck them. He also did this on her. 12When she was eight years old, he adopted a practice after sexually abusing her orally in a bedroom of making her go to a bathroom where she had to lie on the floor while he inserted a douche into her vagina and squirted water into her vagina that caused her a great deal of pain. When she screamed, he went to hit her; she stopped screaming and went into a state of dissociation. 13As these years went on he also physically struck her, threatened her and abused her. The result of all this was that she had no self-esteem. At the age of eight, he also commenced to insert his penis into her vagina and engaged in this activity as well as the other forms of sexual abuse until she was 13 years old. When he started inserting his penis into her vagina he would lie on top of her, causing her to feel that she would cease breathing. On one occasion her mother walked in, saw what was happening and walked out. To assist with penile/vagina intercourse, he would insert vaseline into her vagina. After he had intercourse he would compel her to remove all of the vaseline and use the douche so that there was no semen on her clothing. 14He would claim that he was showing her love that then would threaten to kill her if she told anyone. When she was 12 years old, he would frequently become enraged with her and would grab her and smash the right side of her head against a wall. She now wears a hearing aid in her right ear. She believes her hearing loss in her right ear was caused by her father smashing her head repeatedly against a wall. She did not produce any medical evidence to support this belief. 15At one stage she became a compulsive eater. 16As she got older, her father started to travel overseas for work purposes and would abuse her sexually before he left and then when he returned would tell her about all the women he had sex with when he was overseas. Frequently when he returned home from work he hit her with a belt. 17When she was 13 years old, she first got her period and he purchased a large quantity of contraceptive pills from someplace in Hong Kong, gave them to her mother and instructed her to compel the plaintiff to use them. He ceased sexually abusing her at the age of 14 but continued to abuse her physically and psychologically until she became an adult. 18Clearly enough over these years he committed the common law offences of rape, indecent assault, assault occasioning actual bodily harm, incest and carnal knowledge of a girl under the age of 10 years and there is no doubt that he was a sadistic sexual offender. It is hard to comprehend that a man would treat his own daughter in such a cruel and heartless fashion. I have been told that he pleaded guilty to a series of offences and was given a minimum term of seven years imprisonment with a maximum term of fourteen years.
Consideration 19In my opinion, she has an entitlement to common law damages of a very high level. She has given evidence, which I accept, that she has had a very disrupted adult life. She married a man she knew to be a homosexual and whom she did not love and had a daughter who committed suicide at the age of 17 years. Her husband, who was a solicitor, was involved with a wealthy homosexual man in the eastern suburbs of Sydney. That man was murdered. There have been two Coronial enquiries, but no conclusive finding has been made as to who carried out the murder. Her husband was indicted and convicted for fraud in connection with the deceased man's will. 20She has now married another man and appears to be happy with him, but is afraid that he will leave her because she is fat and unattractive. This belief obviously relates back to her father's continually telling her that she was fat and unattractive. To my eyes, she is beautiful and quite slender. 21She failed to get a Higher School Certificate and I am certain that this was because of her disrupted schooling caused by the abuse of her by the defendant. She commenced work as a nurse, but abandoned it. She even went to work in her father's company and whilst there had a traumatic miscarriage. 22Her working life was very disrupted and it took some time before she could commence studies as a teacher and then become a teacher in the state education system. I accept that the disruptions in her life that caused her to embark on this career later then she should have done resulted from the abuse she suffered at the hands of the defendant. One of the consequences of her starting a teaching career so late was that she could not join the State Superannuation Scheme, which was closed to new members in 1985. She did not become a teacher until after that. 23She has also been promoted twice to the rank of Assistant Principal and then has lost the position because of her emotional inability to continue. I am satisfied that this results from the sexual and physical abuse she suffered at the hands of the defendant. 24The consequences of physical and sexual abuse are always serious and there is no doubt that the victims of abuse are often affected for many years. They feel shame, guilt and a profound sense of worthlessness. They ask the questions; "Why me? Am I so worthless?". Very many of them do not speak about these events for many years. In her case, what made her decide to come forward was a realisation that her father, who had remarried, had a child of about four years of age. She worried that her father would abuse this child, just as he abused her. Evidence was produced at the sentencing hearing that her father had abused sexually two young half sisters of the plaintiff. This occurred overseas and he was not charged with these offences 25I have dealt with many paedophiles during 13 years of conducting criminal trials and sentencing offenders. Many of them commit offences against many victims. It is not possible to understand why a man would sexually abuse and physically abuse his own daughter. However, he has caused her immense damage that is scarcely capable of being redressed by an award of damages. His conduct is worse than that of any other father I have encountered. 26She is entitled to substantial damages and I award her $400,000 general damages. I attribute two thirds of the damages to the past. She is entitled to interest on the past general damages. 27She is also entitled to damages for loss of earning capacity, past and future, loss of superannuation benefits, past and future, past and future out of pocket expenses.
Decision 28The normal jurisdictional limit of the District Court is $750,000, but because her claim involved very much more than that and because the defendant took no objection, she is entitled to damages that are up to 50% greater than the jurisdictional limit (see Richards v Cornford (2010) 76 NSWLR 573; Haddaway v Robinson & Ors [2010] NSWDC 188). 29I award damages of $1,125,000. 30The defendant is to pay the costs of the plaintiff. 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: 02 January 2014
LT
RT
(2010) 76 NSWLR 573