Morris v Karunaratne

The next series of allegations is that from April 2006, after withdrawal of the criminal charges, the first defendant continued to beat her on a regular basis, and forced her to prostrate herself before him on a daily basis and beg his forgiveness. He also dragged the plaintiff before his parents and forced her to get on her knees and beg their forgiveness (2.16). Then in August 2005 he compelled her to write the letter that is Exhibit C (2.17). Thereafter he became more violent and intimidating (2.18).

I have dealt with the allegations of prostration, obeisance and begging forgiveness, and the circumstances surrounding the plaintiff having written the letter Exhibit C and delivering it to the first defendant's mother. I find that no such episodes occurred, and that the letter was willingly written by the plaintiff, of her own volition, and not at the instigation of the defendants, or for their purposes. I make no findings of conduct constituting battery or assault in respect of these allegations or the other unspecific allegations, that were the subject of evidence that was unconvincing and lacking in sufficient detail to warrant adverse findings of criminal conduct.

The next allegation is that later in 2005, at the parents' Eastwood home, the first defendant lashed out at his mother (2.19). I have already found that the first defendant did not use violence against his mother. In any event, there is nothing in the evidence of the plaintiff about this incident that could constitute a battery or even an assault, against her.

The next allegation is that during 2005 and thereafter the first defendant urinated on the plaintiff in the shower (2.23). This was an allegation as to which the plaintiff was not prepared to affirm in her evidence. It is also another example of her counsel, in his written submissions, unhelpfully embellishing the allegations, without the supporting evidence.

The next series of allegations relate to the following year, including the purchase of the Hunters Hill house in early 2006, an episode in May 2006, and the awarding of the college medal to the plaintiff in late 2006. As I have already said, it is difficult to sift any evidence of assault or battery from some of these allegations, as distinct from complaints more properly the province of the Family Law Court. Another notable feature is that there is only one specific allegation of an episode involving any intentional physical violence against the plaintiff for the 2½ years from the alleged episode in the Virgin Islands in December 2004 up until the alleged incident in Turkey in May 2007. And even that episode, said to have occurred in May 2006, is implausible.

The first of the allegations in this series is that in late 2005 and early 2006 the first defendant compelled the plaintiff to enter a transaction to purchase the Hunters Hill property (2.26) and then to reside there with the parents and the brother-in-law, Tusitha (2.25). She was forced to enter the transaction on the basis that her name was omitted from the title, but not the mortgage (2.24). I have already made my findings in respect of these allegations, and I am not satisfied that the plaintiff was forced to live with her parents-in-law or her brother-in-law, nor was she left off the title contrary to her will. Another allegation in this series is that the first defendant compelled the plaintiff to changer her name (2.21). For the reasons already given I find that she changed her name of her own volition.

The other allegation in this series is that in May 2006, at the Hunters Hill property, the plaintiff was assaulting and beating the plaintiff in their bedroom when his parents came in and watched. When his mother attempted to intervene, the first defendant threw his arms out at his mother, then continued to attack the plaintiff (2.20). I have already found that the first defendant did not use violence against his mother. In my view the allegation is entirely implausible and having regard to the absence of any corroboration, I find that this episode never occurred as alleged.

The next allegation (2.28) is that in May 2007, during a walk during the holiday in Turkey, the first defendant pinched and poked the plaintiff, and pulled her hair. It was also put to him in cross-examination that after they returned to their hotel room he became so angry that he beat her up. But she gave no evidence to this effect. The incident alleged is not corroborated, but in my view it is probable that something occurred during the conference in Turkey. It is clear that by this time the plaintiff was in the throes of a major commercial transaction involving other medical colleagues, which were a source of irritation to the first defendant, particularly as one of her business colleagues was Dr Wenderoth, about whom the first defendant was expressing his suspicions as to whether "something was going on" between him and the plaintiff. No doubt the plaintiff's display of independence in respect of the commercial transaction, and her refusal to discuss the details, was a source of further marital disharmony. That there were problems in the marriage at this time is evident from the letter drafted by the first defendant that is Exhibit J. On his own admission, the first defendant was badgering the plaintiff about these matters, and I find that it is probable that his irritation at her in Turkey spilled over into inappropriate physical force, consisting of pinching and poking. This was direct and intentional conduct involving harmful contact. I find the first defendant was guilty of battery in this episode.

The final set of allegations surrounds the ultimate breakdown of the marriage. It is alleged that the first defendant made repeated allegations of infidelity against the plaintiff (2.27). In my view, in the absence of any evidence of a specific threat on the part of the first defendant that put the plaintiff in apprehension of the application of harmful physical contact, his conduct in this regard was not tortious. The last allegation was that on 15 June 2007 he proceeded to punch her, whilst she was in bed, on the arms, legs and head (2.29). Again, there is no direct corroboratory evidence of this episode, but given her abandonment of the marriage soon thereafter, and her complaint to the police, it is probable that the episode was more than verbal. I do not find that she was punched with a closed fist, but I am satisfied that there was significant physical contact, sufficient to cause bruising. It is implausible that she would have kneed him in the groin if the episode involved nothing more than verbal confrontation. I am satisfied, therefore, that there was direct and intentional conduct involving harmful contact. I find the first defendant was guilty of battery in this episode. No doubt this was the ultimate precipitating factor in her decision to leave the first defendant.

The plaintiff's allegations against the parents, the second and third defendants, as alleged accessories to the conduct of the first defendant were abandoned. I have found that there was no factual basis for any of the allegations against the parents of direct assault or battery. The claim against the parents therefore fails, and there will be a verdict in their favour against the plaintiff.

The plaintiff's claim against the first defendant in assault and battery has been proved in part. It is, therefore, necessary to consider the defence based on the Limitation Act 1969, and whether any of the tortious conduct established by way of assault or battery on the part of the first defendant is defeated by reason that the claim is out of time.

The first defendant pleaded that in relation to any cause of action for personal injury occurring before 16 September 2005, the plaintiff's claim is not maintainable by reason of the Limitation act 1969. As a result of discussion during the course of oral submissions, counsel for the defendants conceded that any tortious conduct by way of assault or battery after 6 December 2002 would fall to be considered under s 50C of the Act and is not statute barred: Baker-Morrison v State of New South Wales [2009] NSWCA 35.

The Statement of Claim in these proceedings was filed on 17 September 2008. Any cause of action first accruing to the plaintiff before 17 September 2002 would be subject to s 14 of the Act, which provides for a limitation period of 6 years running from the date on which the cause of action first accrues to the plaintiff. There is only one finding of assault or battery that precedes that date, namely the episode in August 2002 that is the subject of allegation 2.2.

The plaintiff contended that the running of the limitation period was suspended by s 52 of the Act because the plaintiff was under a disability because, for a continuous period in excess of 28 days she was incapable of, or substantially impeded in, the management of her affairs in relation to the cause of action by reason of an impairment of her mental condition: s 11 of the Act. In my view, the contention has no merit. To the extent that the contention depends for its success on the psychiatric evidence, I have rejected that evidence for the reasons already articulated. But the psychiatric evidence, even at its highest, is not probative of the contention that the plaintiff was under a mental impairment that prevented her from attending to her cause of action. A belated application to extend the limitation was rejected.

I find, therefore, that the plaintiff's cause of action based on the episode in August 2002, prior to her marriage, cannot be maintained in that it was brought after the expiration of the limitation period, the running of which was not suspended by reason her being under a disability.

There are some preliminary matters to be considered and determined before embarking on an assessment of the damages to be awarded to the plaintiff.

The defendant contends that damages are to be assessed having regard to the limitations imposed under the Civil Liability Act 2002. The plaintiff contends that the provisions of that Act do not apply here: SOC @ 12. The applicable provision is s 3B(1), which provides, relevantly:

"The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows:

(a) civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person - the whole Act …"

The defendant submitted that some of the alleged assaults were not done with an intent to cause injury to the plaintiff:

"So if your Honour finds - and it would be necessary to distinguish between some of the alleged assaults and others in this regard - that in the course of arguments as between them - for example, that the plaintiff was not paying attention, was deliberately ignoring what the first defendant was saying to her, what some people call passive-aggressive behaviour, and that there was prodding, pinching, things going on for the purposes of attracting attention or, in the circumstances of an argument, the kind of thing which, I respectfully suggest, the evidence would tend to support of this case, then any physical contact in those circumstances is not done with the intent to cause injury; it is done with the intent to attract attention with the intent to make a point… and that indeed is the very purpose of the Civil Liability Act, to limit and exclude certain kinds of actions that would otherwise have been recoverable at common law." (T 727)

Even if the submission has any validity, which I doubt, I am satisfied that each of the batteries I have found proved was committed by the first defendant with intent to cause injury.

The second preliminary matter requiring consideration is what Judge Walmsley has described as the "particular difficulty" arising from the fact that there is a large number of separate torts which collectively have contributed to a psychiatric condition: Varmedja v Varmedja (Unreported, NSWDC, 30 April 2007) at [111]. It was submitted for the defendants that I should assess the damages separately in respect of each individual assault or battery. For my part, I am content to make a global assessment of the plaintiff's psychiatric condition having regard to the totality of the tortious conduct, as Judge Walmsley did in that case: In the Marriage of Kennon and Kennon (1997) 22 FLR 1.

Central to the assessment of damages in this case is the nature, extent, effect and likely duration of the plaintiff's psychiatric condition. I have already discussed the validity of the expert evidence tendered by the plaintiff having regard to the unreliability of the assumptions upon which the opinions are based: Ramsay v Watson [1961) HCA 65. The problem is aggravated by the reliance of the experts upon material not in evidence (see for example the report of Dr Jungfer dated 11 December 2008 at [6.1] and [6.2]). There is also the absence of evidence from her treating psychiatrists. In the result, little weight can be placed upon the medico-legal opinion.

It is the plaintiff's case that she suffers from a post traumatic stress disorder and a co-morbid major depressive condition. The defendants do not dispute that the plaintiff suffers from depression but they do dispute the diagnosis of PTSD. Reliance is placed upon the report tendered in the defendants' case from Dr Leonard Lee dated 13 January 2009. Criticism was levelled at the instructions given to the doctor by the defendants' solicitors, such as the positive assertion of an extramarital affair, but I did not regard those matters as invalidating his opinion. What did impact on any acceptance of his opinion, like the other experts, was the unreliability of the history obtained, and the consideration of material not in evidence before me.

Dr Lee's report is somewhat laconic and lacking in detail so far as the formulation of the basis for his opinion is concerned. But there are parts of his report that resonate, for example:

"In my opinion, while Dr Morris reported that she has major problems with memory and functioning, her manner in the interview did not reflect this and her role as a staff specialist in radiology was also inconsistent with gross impairment in attention or appraisal despite her reporting that she has to go in to work after hours and have colleagues cover for her. She was not disengaged from the assessment as judged by her comment about the process." (Page 8).

"Her reporting of symptoms was inconsistent, indicative of feigning. I found no evidence of abnormality in her speech. Dr Morris was told she topped her specialist examinations, and she holds a position as a staff specialist at a noted teaching hospital, but ultimately claims she is moderately unable to function. This data does not support the contention that Dr Morris suffers with post traumatic stress disorder." (Page 10)

The defendants' written submissions summarise the position thus:

"The law does not recognise an award of damages for marital disharmony, friction or arguments. It only recognises an award of damages for psychiatric injury flowing from tortious conduct. None of the medical evidence relied upon by the Plaintiff is consistent with other medical evidence relied on by her from medico-legal examiners. As Dr Lee has pointed out, her evidence has been inconsistent. It is easy for medico-legal examiners in a litigation context to opine that the Plaintiff has PTSD. It is impossible in this case to attribute, as must be done, any such condition to any particular tortious conduct. To the extent that the Plaintiff has a psychiatric disability and, her conduct would indicate that there is some degree of instability in her psychological makeup, this is no doubt attributable to other factors, including her being in a very disharmonious and unhappy marriage." [43]

Having regard to all these matters I am not satisfied that the plaintiff is suffering from a post traumatic stress disorder. I am, however, satisfied that she is suffering from depression, which is a result of her marital breakdown and the ongoing litigation. The breakdown in her marriage is no doubt due to a range of factors, but I am satisfied that the batteries that I have found proved played a materially causative role in the development of her psychiatric condition: Watts v Rake (1960) 108 CLR 158.

Whilst the plaintiff's depressive condition is described as severe, the prognosis is optimistic:

"…she is a highly motivated woman with no evidence of pre-morbid personality disorder and therefore I would expect that with appropriate intervention and therapy that she will be able to achieve good symptomatic recovery." (Dr Jungfer at 10.4)

The plaintiff complains of a number of negative impacts on aspects of her daily capacity to function. She complains, for example, of increased anger and irritability, sleep disturbance and fatigue, diminished self esteem, diminished libido and diminished motivation and initiative. She reported the following to Dr Jungfer

"She reports persistent depressed mood, feelings of sadness and difficulties with motivation to the point where it is difficult to get out of bed." (4.2)

"Her socialisation has been restricted due to exhaustion, difficulties in terms of coping emotionally and finding socialisation as being too draining." (4.3)

"She is not generally fearful, she does not have a generalised anxiety, she does have substantial phobic avoidance behaviour." (4.4)

"Her appetite is stable, her weight has increased and she attributes this to a reduction of physical activity. She has a severe reduction of libido and substantial anxiety regarding engaging in any form of intimate relationship." (4.6)

"There are problems with respect to concentration in two situations. The first is when she is severely fatigued due to sleep disruption and the second is when she is having a lot of flashbacks…There are some problems with regards to memory…" (4.7)

"There are no impairments with regards to her judgement, reasoning and problem solving, nor are there any impairments of language or communication skills. (4.8)

"Over time she has consumed excessive quantities of alcohol to deal with her emotional state… Currently her alcohol consumption is more moderate." (4.9)

Some of these complaints need to be approached with caution having regard to the plaintiff's capacity to embellish. Others are understandable consequences of the breakdown of her marriage. Her complaints, however, need to be balanced against the demonstrated activity in which she has engaged since separation, including her work, her business activities and a number of overseas trips. My overall conclusion is that the plaintiff has had severe depression that has impacted negatively on her life in a number of ways, but given her strength of character and determination, it is probable that with treatment and the disposition of the family law litigation she will make a substantial and speedy recovery.

245 I turn now to assess the damages. The plaintiff was born on 4 July 1973 and is now 36 years old. She is an intelligent and determined woman, who until these events was highly motivated. I have no doubt that motivation will return. She was subjected to a number of batteries over the period of her marriage resulting in a depressive illness since her separation, from which she is still recuperating.

Claims are made for damages under a number of heads. It is appropriate that I deal with these in turn. The first claim is for general damages. Counsel has not differentiated between compensatory damages and those damages that are not dependent upon proof of any injury or loss, but awarded to reflect the intentional nature of the tortious conduct, what Fleming has described as damages for violation of the dignitary interest: Fleming, The Law of Torts, 9th ed (1998) at page 216. In my view it is appropriate to do so.

I assess the damages for the violation of the dignitary interest as follows. I have weighted the award in respect of episodes following the initial AVO:

Episodes (6) between the marriage and May 2003 (2.3) $15,000.00 Episode in May 2003 (2.4) $10,000.00 Episodes (5) between July and October 2004 (2.7) $15,000.00 Episode on 3 October 2004 (2.4) $ 5,000.00 Episode on 10 October 2004 (2.9) $15,000.00 Episode in May 2007 in Turkey (2.28) $ 5,000.00 Episode on 15 June 2007 (2.29) $10,000.00 $75,000.00

In assessing the plaintiff's claim for compensatory general damages I take into account her age, the pain and suffering from each of the assaults and batteries, and the bruising suffered. I also take into account the depressive condition and its effects. I award a sum of $75,000.00 for general damages, and apportion $50,000.00 for the past and $25,000.00 for the future. Interest is to be paid on the past general damages, to which I will come shortly.

The plaintiff claims $15,760.00 for past treatment expenses. The mathematics was agreed, but the defendants disputed some of the claim, in particular the expenses relating to Ms Krieger, a clinical psychologist: see Exhibit K. It is rightly pointed out that there is no evidence from her or for what she was treating the plaintiff. In those circumstances the plaintiff has not proved that part of her claim. I therefore allow past out-of-pocket expenses at $10,000.00 (rounded up). There is no claim for interest.

A claim is made for future treatment expenses of $15,000.00. No submissions we made in opposition to the claim and I allow it.

A claim for domestic assistance articulated in the Statement of Particulars was not pressed.

The plaintiff makes a substantial claim for economic loss, past and future, in excess of $570,000.00. The basis alleged for the claim is that as a consequence of her psychiatric condition, the plaintiff has lost the opportunity of working for 2 days a week in private practice as a radiologist, and that her incapacity for work will continue for a further 5 years into the future. Prior to the break up of her marriage she was working full time. She alleges that since then she has only been able to work 3 days a week, because she had to stop doing private radiological work, and simply can't cope with the extra 2 days.

To the extent that the plaintiff obtains support for her claim from the psychiatric evidence tendered, I reject that evidence for the reasons already discussed. There is no other supporting evidence, such as from a treating therapist that she has an impairment that prevents her from working., I am left, therefore, to assess her claim on other evidence and my own assessment of her. She gave no evidence of any occasion on which she has not been able to work. Her evidence as to what aspects of her duties prevent her from working full time was imprecise and unconvincing. No one from her work place was called to say there were problems with the quality of her work. As counsel for the defendants submitted:

"In fact, no work colleague or supervisor was called to confirm any diminution in any capacity. It defies credulity to suggest that the Plaintiff could be employed in a capacity requiring the examination of radiological investigations in circumstances where a mistake could have life threatening consequences to a patient if her superiors, partners or work colleagues had any doubt about her capacity to perform her work." [30]

The involvement of the plaintiff in the major commercial enterprise involving the purchase of a building and the financial commitment involved is inconsistent with any diminution in earning capacity of the type claimed. None of these business colleagues was called to support her claim of incapacity.

I am not satisfied that the plaintiff has suffered from any inability to work, or that she has any incapacity to do so for the future. I make no allowance for any damages in respect of this claim.

The plaintiff also claims aggravated and exemplary damages.

Exemplary damages may be awarded to register a court's disapproval of a defendant's misconduct, to punish, or to act as a deterrent: Lamb v Cotogno (1987) 164 CLR 1 at 9. However, this is a case where there have been criminal proceedings and the expectations of the community in terms of punishment and deterrence have already been met, such that an award of exemplary damages is not appropriate.

Aggravated damages may be awarded where a defendant has acted in "contumelious disregard of the plaintiff's rights" or in an insulting or high-handed way, or with malice. They are designed to compensate for injury to a plaintiff's feelings, to redress indignity or hurt pride. However, the Court must be careful not to award such damages for matters already encompassed by any other award of compensatory damages. It has also been held that provocative conduct by a plaintiff may reduce such damages, or disentitle a plaintiff completely.

Whatever may have been the circumstances of the marital relationship, and the conduct of the plaintiff in the context of that relationship, as counsel for the first defendant rightly conceded, there is no justification in the civil law for the first defendant's conduct. [28]

The plaintiff has pointed to a number of circumstances she says aggravated the assaults and the battery she was required to endure. Many of her allegations were, as I have found, not proved. Others, in my view were more properly the province of the Family Law Court. It is also to be observed that I have already made a substantial award of damages for violation of the dignitary interest. The High Court has said, in New South Wales v Ibbett (2006) 229 CLR 638 at [31]:

"Aggravated damages are a form of general damages, given by way of compensation for injury to the plaintiff, which may be intangible, resulting from the circumstances and manner of the wrongdoing."

In my view, there are limited circumstances in this case that point to suffering over and above the awards of compensatory general damages and those for violation of the dignitary interest. His continued use of physical contact, notwithstanding the initial AVO and criminal charges is one. That should have been a salutary episode. Secondly, the batteries I have found proved were usually accompanied by personal abuse. In these circumstances I consider it is appropriate to make a small award of aggravated damages, which I assess at $10,000.00.

I assess the interest on the past general damages at $5,000.00. I assess interest on the damages for violation of the dignitary interest at $7,500.00, a total of $12,500.00.

Total damages 263. The calculations as to the damages are set out in the Table below. The table sets out the total amounts for each individual head of damages as I have found them, in summary form.

Heads of Damage Amount Violation of the dignitary interest $ 75,000.00 General damages $ 75,000.00 Interest on past general damages $ 12,500.00 Past out-of-pocket expenses $ 10,000.00 Future treatment expenses $ 15,000.00 Past economic loss Nil Future economic loss Nil Exemplary damages Nil Aggravated damages $ 10,000.00 Total damages $197,500.00

264. The prima facie position is provided for in r 42.1 and r 42.2, to the effect that the costs should follow the event and be assessed on the ordinary basis. I will give leave for either party to make an application for some other order.

Disposition 265. The orders are: (1) I enter a verdict for the plaintiff against the first defendant in the sum of $197,500.00 and I direct the entry of judgment accordingly. (2) I enter a verdict for the second and third defendants against the plaintiff and I direct the entry of judgment accordingly. (3) I order the first defendant to pay the plaintiff's costs, on the ordinary basis. (4) I order the plaintiff to pay the costs of the second and third defendants, on the ordinary basis. (5) I give leave to the parties to apply for other costs orders if considered appropriate, provided any such application is notified to the other party and the court within 7 days, in writing, specifying the order sought. (6) The Exhibits are to remain in court for 28 days, after which period they may be returned to the parties.

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