Plaintiff v Defendant

Supreme Court of Victoria|2007-11-07|Before: KAYE J

TORT - Assault - Sexual abuse by defendant of plaintiff as a young child - Standard of proof - Whether evidence of contemporaneous complaint admissible - Limitation of Actions Act s 27E, 27I - Damages - Exemplary damages.

1 The plaintiff is a young woman of some 26 years. She was born and raised in a small country town in northern Victoria. The defendant and his wife were, from the early 1970s until approximately the mid 1990s, neighbours and friends of the parents of the plaintiff. In this proceeding the plaintiff seeks damages from the defendant, including exemplary damages, claiming that, between approximately 1984 and 1991, he sexually assaulted her on a number of occasions.

2 Before outlining the nature of the allegations made by the plaintiff, it is necessary to say something first about the proceedings. The action was commenced by writ on 17 July 2006. During the interlocutory stages the defendant was represented by a firm of solicitors, who filed a defence on his behalf. However, approximately two months before trial, the defendant's solicitors sought and obtained the leave of the Master to cease to act for the defendant, on the basis that the defendant had not put them in funds to defend him at the trial. The case was set down for the Shepparton sittings of this Court commencing Monday 15 October 2007. At the callover which I conducted on that day the defendant appeared in person. He told me that he was unrepresented, that the Victoria Legal Aid Authority had rejected his application for legal assistance, and that he had unsuccessfully sought to access pro bono representation. I stood the matter down to come on later in the sittings, at the conclusion of some other trials.

3 Ultimately the trial of the action commenced at the Shepparton Court on Tuesday, 30 October. The defendant had been duly notified, and attended at Court that day. He again confirmed that he was unrepresented, that the Victoria Legal Aid Authority had rejected his application for assistance, and that his solicitor had not been successful in endeavouring to obtain pro bono representation on his behalf. Accordingly the proceedings commenced on that day. The plaintiff and her mother (to whom I shall refer as "SM") gave evidence. Two medical reports were tendered, with the consent of the defendant. Before those reports were tendered I explained to the defendant why they were being tendered in evidence, and he consented to the reports being tendered without the necessity for the psychiatrist and psychologist, who had written the reports, to come to Court to give evidence as to their contents. The defendant asked questions of the plaintiff and her mother, and on occasions I assisted him by converting propositions of fact, put forward by the defendant, into appropriate questions. The plaintiff closed her case on the same day. The defendant gave evidence and was cross-examined. At the conclusion of his evidence he indicated that he also wished to call his wife to give evidence on his behalf. She works as a nurse in a large Melbourne hospital. Accordingly, I adjourned the further trial of the case to the Melbourne Supreme Court, to recommence on Thursday 1 November, in order to enable the defendant's wife to give evidence on his behalf.

4 The statement of claim is in simple form. It alleges that between 1984 and 1991, the defendant sexually assaulted the plaintiff on numerous occasions. The plaintiff claimed that she suffered injury and loss, consisting of psychiatric disturbance and other emotional sequelae. In her statement of claim she foreshadowed a claim for special damage and loss of income and loss of earning capacity, but she did not pursue the claim for loss of earning capacity at trial. She also made a claim for exemplary damages.

5 In the defence filed on his behalf, the defendant denied the allegation of sexual assault on the plaintiff. He further pleaded that the plaintiff's claim is barred by reason of s 27E(1) and (2) of the Limitation of Actions Act (Vic). In response the plaintiff delivered a reply, pleading that at all material times the plaintiff was a "minor" and the defendant was a "close associate" within the meaning of s 27I of the Limitation of Actions Act, and that accordingly the claim was not barred.

6 Before I summarise the evidence, I shall state some of the principles which I consider I should apply in examining the evidence and in making findings on the evidence.

7 The claim by the plaintiff involves particular serious allegations against the defendant, including that the defendant engaged in conduct which constituted a grave criminal offence. The nature of the allegations made by the plaintiff, and the consequences of any findings which I might make in this case, are important considerations in determining whether the proofs put forward by the plaintiff are sufficiently clear and cogent to satisfy me of them on the balance of probabilities.[1]

8 Furthermore, in assessing the plaintiff's evidence, I take into account that at the time of the incidents which she has alleged against the defendant, she was young and impressionable. During her teenage years she was a troubled person, indulging in some self-destructive conduct. She still has a number of psychological issues which I shall set out later in this judgment. In addition, I take into account the fact that a substantial period has now passed between the time at which the incidents were alleged to have occurred, and the present time. That time lapse may not only have affected witnesses' memories, but may also have caused the defendant to have been deprived of the means of properly testing or rebutting the allegations made against him.[2] In this context, it is important to bear in mind that the defendant was at a distinct forensic disadvantage in the trial. The plaintiff was represented by experienced and competent counsel. By contrast, the defendant had to fend for himself in Court. Although I assisted him to formulate questions to be asked of the plaintiff and her witnesses, and I asked some questions myself, nonetheless I could not undertake the role of cross-examining those witnesses, as might counsel for the defendant, had the defendant been represented. I am therefore conscious of the fact that the evidence of the plaintiff and her mother was, substantially, untested by cross-examination which, as we instruct juries, is the tool used by the law to test the accuracy and veracity of evidence.

9 At the commencement of the trial, I inquired of counsel for the plaintiff whether it was intended to call evidence as to any contemporaneous complaint made by the plaintiff to her parents, or to anyone else, as to the assaults which she alleged against the defendant. Mr Monti, who appeared as senior counsel for the plaintiff, told me that it was intended that such evidence be led. I raised a question as to whether such evidence might be adduced on behalf of a plaintiff in a civil proceeding. It is, of course, well established that in criminal prosecutions for a sexual offence, a complaint made by the alleged victim may be proved in evidence in chief, provided certain conditions are met. Such a complaint is admissible as being "corroborative of the complainant's credibility, and, where consent is in issue, of the absence of consent".[3] However, the position is not so clear in civil proceedings, in which a plaintiff makes an allegation against the defendant of sexual assault such as in this case. In DeB v DeB,[4] the Full Court of the Supreme Court of Victoria held that, in a petition for divorce on the grounds of sodomy, evidence was not admissible that the petitioner had made a complaint of the offence to a third person in the absence of the respondent. In reaching that conclusion, the Court considered that such evidence, although admissible in criminal proceedings, is not admissible in civil cases. The Court further held that, in any event, such evidence would not be admissible in a divorce petition grounded on sodomy.

10 When I raised that decision with counsel, Mr Monti, while formally submitting that the decision was wrong, did not seek to persuade me that I should not follow it. I shall return to this issue later in my reasons. However, evidence of complaints made by the plaintiff, as to the assaults which she alleged, was admitted in the trial as being relevant to issues other than the plaintiff's credit. On one occasion, the complaint was made in the presence of the defendant, and the evidence was admitted in order to lay the foundation for the defendant's reaction to it. Secondly, evidence of contemporaneous complaint was admitted as being relevant to the question whether s 27I of the Limitation of Actions Act applies to the plaintiff's claims. Thirdly, the evidence has some relevance to the plaintiff's psychological state. The evidence suggests that, when the plaintiff raised the issue with her mother, SM was not particularly sympathetic, and that that has, in itself, contributed to the plaintiff's current psychological state.

11 I now turn to summarise the evidence given by the plaintiff and her mother, and the defendant and his wife. The plaintiff is the eldest of three daughters. Her younger sister (to whom I shall refer as "LM") is two years younger than her, and her youngest sister is some seven years her junior. The plaintiff stated that, when she was a child, her parents and the defendant and his wife were very close friends, particularly the plaintiff's father and the defendant. She stated that they spent a lot of time together and were constantly at each other's homes. She stated that over a period of time she was sexually assaulted by the defendant. She was not able to recall the first incident which occurred, nor the order in which the various incidents took place. Nor could she identify the last incident. In her evidence she was only able to describe, in any detail at all, three incidents.

12 The first incident described by the plaintiff was the "swimming pool incident". She stated that that incident occurred when she was about five or six years of age, during her early primary school years. The plaintiff went to the pool with her parents, together with a young girl who lived across the road from her, the defendant and his wife, and the defendant's daughter. The defendant's daughter is about three years younger than the plaintiff. In her evidence the plaintiff said that she was swimming with her friend, and the defendant's daughter, together with the defendant in the pool. As she swum under the water, on two or three occasions the defendant pulled his penis out of his swimming togs and shoved it in her face under water. The defendant's penis did not make contact with her face. The plaintiff stated that when she got out of the pool she told her mother, in the presence of the defendant and the defendant's wife, that the defendant was being rude. The defendant's wife became upset and the plaintiff's mother looked embarrassed. Her mother told the plaintiff that that was not a very nice thing to say. As the plaintiff's mother and the defendant's wife were walking off, the defendant said to her that he was quite cross with her because he thought that they were special friends. The plaintiff further stated that in the car going home her mother was very angry with her for making the comments, particularly in front of the defendant's wife.

13 The second incident was referred to as the "wood shed" incident. The plaintiff stated that this incident occurred when she was six or seven years of age. She said that on that evening her family had been at the defendant's house for dinner or a barbeque. It was dark and late at night. She was sitting in the lounge room of the defendant's house with the defendant, her father, her sister LM, and the defendant's daughter. The defendant and the plaintiff's father had been drinking quite a bit that day. The defendant had very short trousers on and his penis had been out of his shorts while he was sitting on the couch. The defendant then asked the plaintiff if she would go the wood shed with him to collect wood. The plaintiff, in her evidence, said that she did not wish to go with the defendant because "it wasn't the first occasion that things had happened and I believed that I knew what was going to happen if I went to the wood shed with (the defendant)". However her father told her to go and help the defendant. When they went to the wood shed, the defendant pulled his penis out of his trousers, and asked the plaintiff to touch it. The defendant had an erection. The plaintiff stated that she did as she was told and stroked the defendant's penis for a few minutes. She could not recall anything further about that incident.

14 The third specific incident related by the plaintiff was referred to as the "toilet" incident. The plaintiff stated that the defendant had an outside toilet at his house. She was in the toilet with her pants down. The defendant entered the toilet. He pulled his penis out of his pants and again she stroked his penis. The defendant then placed his fingers between the plaintiff's legs and penetrated her vagina. She could not recall how long that incident took. She could not recall leaving the toilet or what happened after it. That incident occurred when she was between the ages of five and seven.

15 The plaintiff was asked by her counsel whether, apart from those three incidents, she could recall any other particular occasions of assaults on her. She stated "I can't recall specific incidents but I feel that there were more assaults ... In my mind it was something that happened on a very regular basis and I feel there's a lot more that I don't remember about the assaults". She stated that she felt as if she has blacked out other incidents, and has blacked out some of the details relating to the toilet incident and the wood shed incident. She stated that she recalled feeling scared when she was told to go to the wood shed with the defendant, and she did not want to go there, as other incidents had previously occurred, but she could not now recall those other incidents. The plaintiff stated that she felt that they took place when she was between five and ten years old.

16 The plaintiff stated that when she was about 12 years of age, and in high school, she received a phone call from someone claiming to be a Chinese priest. She recognised the voice to be that of the defendant. He stated that he wanted to do a survey and asked if the plaintiff's parents were home. She said no-one was at home. He replied that he was touching himself and thinking about her. He asked her whether she knew what his penis looked like. The plaintiff became upset and ended the phone call. Within minutes the defendant rode his pushbike to the front door of the plaintiff's family home, which the plaintiff had locked. A few minutes later the plaintiff's father arrived home from work.

17 In about 1995 the plaintiff confided, to a school friend, what had occurred between herself and the defendant. The school counsellor was told, and made contact with the plaintiff about the allegations. The counsellor encouraged the plaintiff to speak to her parents and tell them. The plaintiff stated that at that stage her mother ceased to have contact with the defendant, but that her father continued to do so, until the defendant left the area in 1997.

18 In 1995, the plaintiff had a couple of counselling sessions with the school counsellor. She then had some counselling sessions with the Centre Against Sexual Assault ("CASA"). Those sessions took place approximately every fortnight for five or six months. The plaintiff stated that at that time she was very emotional and disturbed. She had suicidal thoughts. At about the age of 14 she commenced drinking heavily and becoming drunk. She engaged in reckless sexual conduct with boys who were a few years older than her. She said she performed sex with them because she wanted to fit in and she thought that that was what people wanted her to do. In the meantime her relationship with her parents deteriorated. She had a lot of fights with her mother.

19 Subsequently, approximately four and a half years ago, the plaintiff formed a relationship with a young man. They have a daughter aged 20 months, and the plaintiff is due to give birth to her second child in about five weeks. After the birth of her first child, the impact on her of the defendant's conduct intensified. She has been extremely protective of her child. The plaintiff's daughter sleeps in the same bed as the plaintiff and her partner. She has never left her daughter for a night. She suffers constant anxiety about the well being of her daughter. She is particularly anxious when she permits her mother, on infrequent occasions, to take her daughter. Even when she works, as a solicitor's secretary, she keeps her daughter with her. She is terrified of the birth of her second child, because she knows that that will separate her from her daughter. Her partner is often away, and as a result she keeps a couple of knives under her bed. At night she leaves the hallway light on. She has suffered from great anxiety and has constant thoughts of dying, and of people who she loves also dying. The plaintiff has significant issues with her parents, and in particular her mother, who she feels betrayed her trust.

20 In 2006, the plaintiff underwent five or six counselling sessions with a psychologist, Ms Lorraine Rowe. She feels that they helped, but they would have been more beneficial if they were more regular. The plaintiff had difficulty getting to see the psychologist, partly because of her concern about leaving her daughter with someone else.

21 In cross-examination, the defendant pointed out that, if his daughter was swimming at the time of the swimming pool incident, he would have been holding her. The plaintiff denied that that was so. The defendant also pointed out that his wood shed had not been built until 1988, when the plaintiff was eight years of age. The plaintiff responded that her estimate of the age at which the incident occurred was only an approximation. The defendant maintained that there was no need for him to go to the wood shed, because he normally kept wood in a wheelbarrow outside the door. The plaintiff responded that nonetheless she went to the wood shed with the defendant, and suggested that perhaps that that had been a pretext for the defendant to molest her. She agreed that that evening the defendant might have been sitting on a recliner and not on the lounge suite.

22 The second witness for the plaintiff was her mother, to whom I have referred as "SM". The plaintiff's mother stated that she and her husband had been friends with the defendant and his then future wife before they were all married. They attended each others' weddings and became very friendly. Over the years they spent a lot of time together. SM stated that her family would see the defendant and his family several times a week, sometimes up to four or five times a week. They would spend most weekends together. They would spend the weekends at each others' houses, having barbeques and going out for dinner together. The defendant and the plaintiff's father often fished together. SM stated that the defendant was her husband's best friend and he was very trusted.

23 SM remembered the day that the two families went to the swimming pool. She said that she was sitting at the side of the pool on a chair with the defendant's wife. The plaintiff, the plaintiff's friend and the defendant's daughter were all in the swimming pool with the defendant. SM thought that they were swimming between his legs. When they came out of the pool, SM asked the plaintiff if it was fun, to which the plaintiff replied "It was until (the defendant) got rude". SM asked the plaintiff what she meant. The plaintiff responded "He was showing me his penis in the water" or words to that effect. SM stated that thereupon the defendant's wife became quite upset. The defendant said "If that happened it would have been an accident, it must have fallen out the side". SM told the plaintiff she should not make accusations like that "because you can get people into trouble". When they got to the car the plaintiff told her that the defendant had said "You're meant to be my friend and you're not meant to say things like that". SM was confused and angry with the plaintiff and said to her "You shouldn't say things like that about our friends".

24 SM further stated that when the plaintiff was about eight years of age, while she and the plaintiff were watching television, they saw an advertisement "dob in a paedophile". The plaintiff then told her mother "I could dob in (the defendant) if you would let me". At the suggestion of SM the plaintiff then related some incidents to her. SM then said "Let's leave it at the moment while I talk to your dad about it".

25 SM further stated that while she had a close relationship with the plaintiff during her primary school years, the relationship became problematic when the plaintiff was in secondary school. In hindsight, SM considered that the plaintiff realised that SM had not been supportive of her. When the plaintiff went to high school she became moody, defensive and angry. There were a lot of arguments between the mother and the daughter.

26 In 1995, SM was contacted by the plaintiff's school counsellor. Subsequently she was contacted by a member of the Victorian Police about the matter. SM told the police that the plaintiff did not want to speak to them. In her evidence, when asked why she said that to the police, SM stated that she was confused at the time. The issue was causing a lot of tension between SM and her husband, who was still a very close friend of the defendant. SM was concerned about small town gossip and the effect that it might have on her three daughters. She was worried about her friends having to take sides in the issues, and she was scared. When she told the police that the plaintiff did not wish to speak to them, the police responded that they would have to close the file as the plaintiff was not being cooperative. SM stated that at that time she desisted from her friendship with the defendant.

27 SM further confirmed that the plaintiff was troubled during her teenage years. She had older boyfriends and she drank a lot. She had a poor relationship with SM. She also confirmed that the plaintiff has been obsessively protective of her own daughter.

28 The defendant asked a number of questions of SM. She agreed that the plaintiff had been a premature baby, but nonetheless she was not a slow learner and had completed Year 12 at school. She stated that she recalled the swimming pool incident very well, because it was the occasion when the plaintiff spoke to her about the issue. However, that did not give her cause then to be careful about the defendant being in the company of the plaintiff, because she did not believe the defendant could do something like that. However, after other incidents had been related to her by the plaintiff, it reached a point that, when the two families were together, SM would take care to ensure that the plaintiff was not present. Nonetheless, she and her husband remained friends with the defendant and his wife for some years after that. The defendant's second daughter, LM, was still permitted to go to the defendant's house and be friendly with the defendant's daughter. I asked SM whether the defendant's explanation of the swimming pool incident, as an accident, seemed feasible at the time. SM responded:

"I have to stress he was a very friendly person and I trusted him completely. I trusted him - he was my husband's best friend and I had all the trust that I would have in my husband's best friend not to do something like that to my child."

29 The other evidence adduced on behalf of the plaintiff consisted of a report provided by Ms Lorraine Rowe, the psychologist, and a report by Dr Michael Epstein, a psychiatrist. I shall refer to those reports later in this judgment.

30 The defendant gave evidence, in which he denied all of the allegations made by the plaintiff. In relation to the swimming pool incident, he said that his daughter was three years younger than the plaintiff and was timid in the water, so that he would have had to hold her during that incident. He said "There would have been lots of people there and I'm not going to expose myself in front of anybody ... ". He denied the wood shed incident and said that he would not wear shorts in winter. He said that the wood shed was not built until 1988 and that a barbeque area was not built until 1990. In relation to the toilet incident, which he denied, the defendant stated "I wouldn't lower myself to do that ... ".

31 The defendant stated that while he and his wife were friends of SM and her husband, they were not really close friends. They did not see each other up to four or five times per week. Essentially, the defendant denied that the relationship between the two families was as close as that stated by the plaintiff and SM. The defendant also denied that it was he who made the telephone call, pretending to be a Chinese priest, as alleged by the plaintiff.

32 The defendant was cross-examined by Mr Monti. He was questioned why his wife had not come to Shepparton to support him by giving evidence. The defendant maintained that she was too busy to do so. I told the defendant that arrangements could be made for his wife to give evidence in Melbourne, and he then said that he would like to call her. The defendant accepted in cross-examination that the two families had visited each other's homes for the purpose of having meals and the like over a period of 11 or 12 years. He regarded himself as a friend of the plaintiff's family, but not a good friend.

33 The defendant agreed that he had stated that he was not going to expose himself in front of anyone. He said that he would not lower himself to do such a thing. He denied that he had ever exposed himself previously to children or to anyone else. When asked to reflect on that answer he said he "would not lie on the Holy Bible". He then admitted that he had pleaded guilty to two counts of wilful and indecent exposure in the Wangaratta Court in late November 1997. He sought to explain that matter by saying that children kept riding their bikes up and down outside his house while he was renovating it, and that he used to walk naked in the house. The defendant, during cross-examination, asked what his later conviction had to do with the matter. I told him that it went to his credit, and that also it went to the credibility of the evidence which he had volunteered that he would not lower himself to expose himself. He responded to me "I've sort of got myself snookered so to speak". In answer to questions put by me, he stated that when he gave his evidence he knew he had previously pleaded guilty, and had thereby admitted, to indecently exposing himself, and he knew that that evidence was not consistent with the answer which he gave in his evidence before me. He agreed that the evidence which he had given to me in relation to that matter was not entirely truthful.

34 In cross-examination the defendant accepted that, on occasions, the two families might have been at the local pool at the same time and were thus together, but they did not go to there together. However, he could not recall any such occasion. He said that he drank on many many occasions with the plaintiff's father, who liked to drink. He said that the plaintiff's father would come to his house to drink because he could not afford to buy his own alcohol. At the conclusion of cross-examination I gave the plaintiff the opportunity to clarify any answers he had given. He then stated "I'm just going back to when I said I wouldn't lower myself, your Honour, to expose myself. Apparently I did. I'm very sorry but it just didn't register ... ".

35 On the adjourned date of the hearing, the defendant called his wife, "HB", to give evidence on his behalf. HB stated that she first met the plaintiff's father in about 1976, before he married SM. At that time HB was not married, but was going out with the defendant. In the course of time a friendship developed between the two couples. HB stated that they were in a group of friends together. Over the years the defendant, HB and her daughter would see the plaintiff's family once every one or two weeks. HB said that the defendant and she were friends of the plaintiff's family but not close friends. She denied that the defendant was the best friend of the plaintiff's father. She also denied that the contact between the families was as frequent as that depicted by the plaintiff and SM in their evidence.

36 I then took HB through the main allegations made against the defendant by the plaintiff and SM. She stated that she had no recollection of an incident at the swimming pool in which the plaintiff alleged that the defendant had exposed himself to her. HB stated that she, her husband and her daughter rarely went to the local pool, because they had a pool in their own back yard. I also summarised to HB the details of the wood shed incident, and the toilet incident, as described by the plaintiff in her evidence. HB stated that she did not know anything of either of those two incidents. HB said that her friendship with the plaintiff's family lasted until the early 1990s, because the plaintiff's sister, LM, used to come and stay at their place. HB denied that the plaintiff's parents ever raised with her the type of allegations which had been made in evidence before me.

37 In cross-examination HB stated that the plaintiff's sister, LM, used to stay quite regularly with her family. On those occasions the plaintiff's parents would accompany their daughter to the defendant's house. She agreed that there was a regular mutual exchange of friendship between the two couples. On a couple of occasions the defendant's daughter stayed with the plaintiff's parents. The defendant's daughter and LM were friends, and when one of them visited the other's homes, their parents went with them. Thus there would be plenty of occasions on which the defendant and HB would be at the home of the plaintiff, and plenty of occasions when the plaintiff's parents would be at the home of the defendant. The defendant regularly went fishing and camping with the plaintiff's father and drank with him. HB confirmed that that friendly relationship subsisted for 11 or 12 years. She agreed that the relationship was one of mutual trust.

38 Further, in cross-examination HB denied that she had learned of the allegations made by the plaintiff before the service of the writ in this case. Specifically she denied that the plaintiff's mother's sister, "EL", had raised the matter with her. She said that she discussed with EL the indecent exposure charges brought against the defendant in 1997, but said she could not recall EL, at that time, stating that the defendant had acted inappropriately towards the plaintiff. However, at that time she was very upset and she could not deny that EL had made that allegation to her.

39 HB further stated in cross-examination that SM and the plaintiff's father had abruptly terminated their social relationship with the defendant and HB. HB did not think about it at the time, but regarded it as a bit of a relief, because of the habit which the defendant had of drinking with the plaintiff's father.

40 HB further agreed that there might have been occasions when she and her husband went to the local pool, and while they were there they were in the company of the plaintiff's family. She again denied that, on any such occasion, the plaintiff alleged that the defendant had acted towards her in a rude manner. When further cross-examined as to why her relationship with EL had ceased, HB said that she had cut a lot of ties with the town in which they had lived, because they found them quite painful. She said that she and her husband had shifted to Melbourne to make a new start.

41 Before I make findings of fact in respect of the above evidence, I return to the question of the admissibility and relevance of the evidence of complaints made by the plaintiff to her mother as to the alleged conduct of the defendant. As I have stated earlier in these reasons, in DeB v DeB[5] the Full Court of the Supreme Court of Victoria held that, in proceedings for divorce on the grounds of sodomy, evidence was not admissible that the petitioner had made a complaint to a third person, in the absence of the respondent, of the offence which she alleged against the respondent. In reaching that conclusion the Court considered that, in civil proceedings, such evidence was not admissible. The Court further held that such evidence would not be admissible in any event in a divorce petition, because the intimate nature of the marital relationship was such that it would not be inconsistent for a wife to fail to make contemporaneous complaint of her husband's abnormal or unnatural sexual practices during the subsistence of the relationship. Thus the decision of the Full Court, that the evidence was inadmissible, rested on two bases. It is arguable that the authorities, relied on by the Court for the proposition that such evidence was not admissible in civil cases, are not particularly strong. However, given that the defendant is unrepresented, and thus is unable to present any submission to me on this aspect of the case, I have considered that I ought to be bound by the view of the Full Court in DeB v DeB, namely, that the evidence of contemporaneous complaint is not admissible, or relevant, to support the credit of the plaintiff. I note that the decision has been subsequently cited by judges at first instance in support of that proposition.[6]

42 On the other hand, as I have already stated, the evidence as to the complaints by the plaintiff to her mother was admitted on other bases, to which I referred earlier in these reasons.[7] In addition, I consider that the evidence is admissible and relevant for one other purpose. The plaintiff's allegations relate to incidents which she says occurred some 20 years ago. For reasons which I shall outline below, I accept the evidence of the plaintiff and her mother that the plaintiff did relate those incidents to her mother at a time which was contemporaneous to when she says they occurred. Thus, in assessing the plaintiff's evidence it is, I consider, relevant to bear in mind that this is not a case in which the plaintiff has, in recent times, experienced an onset of memory of incidents which, hitherto, she had not remembered. The defendant did not, in terms, make an allegation of "recent invention" against the plaintiff. However, as the evidence of complaint was admissible for other purposes, it would be artificial to ignore the fact that the plaintiff had long remembered the incidents, and that this is not a case in which she recently has had a "retrieved" memory of them.

43 As I have just stated, I accept the evidence of the plaintiff and her mother that, at an early age, the plaintiff did make complaint to SM about the conduct of the defendant. In giving that evidence, SM acknowledged that she had, in her own view, let down her young daughter. It was clear that when SM gave that part of her evidence, she did so under some strain and difficulty. It was not easy for SM, as a mother, to admit in a Court, before her daughter, and other members of her family, that, on her account, she had let her daughter down. In viewing SM's evidence, I was particularly impressed with her sincerity, and with her level of insight into what had occurred.

44 Thus, as I have stated, I accept that this is not a case of retrieved or reconstructed memory by the plaintiff. The real issue, then, is whether I am satisfied on the balance of probabilities that the events related by the plaintiff in her evidence, and reported to her mother at an early age, did actually occur. In this respect I am well satisfied that the plaintiff was a witness of truth. I scrutinised her evidence carefully as she gave it, and have read and re-read the transcript of her evidence. In relating the three specific incidents which she recalled, the plaintiff took care only to recount the particular details of the incidents which she was able to recollect. She did not succumb to the temptation to fill in any gaps in her evidence, nor did I detect any attempt by her to embellish or bolster her account. She gave her evidence in a relatively calm and dispassionate manner. When asked if she recalled other specific incidents than the three recounted in her evidence, the plaintiff took care not to allege that she could. Rather, she stated that she "felt" that there had been other incidents, and in particular she recollected that when her father told her to go to the wood shed with the defendant, she did not wish to do so, because the defendant had previously conducted himself in a sexually inappropriate manner to her. The nature of the testimony given by the plaintiff, and her demeanour while doing so, has well satisfied me that she endeavoured to be a witness of truth. In other words, I am satisfied that she has not, at any time, deliberately fabricated the allegations which she has made against the defendant.

45 I was particularly impressed with the plaintiff's candour in relating incidents and matters which did not reflect well on her. For example, when asked whether the incident in the wood shed had any impact on her, she recounted an incident, when the defendant was not present, but where she took a jagged piece of wood and put it down her pants. She said she could not explain why she did that. Further, and more substantially, the plaintiff was frank about her conduct during her teenage years. She made no attempt to diminish that conduct, or to dissemble about it.

46 In reaching the foregoing conclusions about the plaintiff's honesty as a witness, I have taken into account the fact that she was not subjected to any meaningful cross-examination. For that reason I scrutinised the plaintiff's evidence with particular care, and was particularly vigilant to detect any evidence of exaggeration or fabrication. However, nonetheless, as I have stated, I have reached the conclusion that the plaintiff was essentially a witness of truth.

47 I also have come to the same conclusion about the credibility and honesty of the plaintiff's mother. In a sense, it could not have been easy for SM to have given evidence to the effect that she did. Certainly, from her perspective, the matters which she related in evidence were considered by her to be tantamount to a concession by her that she had failed her daughter at a critical stage in her life. It is not for me to express any view, or to judge, whether that is in fact so. However, it was clear that SM certainly felt that she had failed her daughter. It was not easy for SM to make such a concession, in open Court, before her daughter and her family. SM gave her evidence in a sincere and forthright manner. Again, I have taken into account the fact that her evidence was, to all intents and purposes, untested by cross-examination. Nonetheless I am well satisfied that she was a witness of truth before me. I am further satisfied that her memory of the events which she recounted was a true memory. Her explanation for accepting the defendant's explanation of the swimming pool incident - that he accidentally exposed himself to the plaintiff - was realistic and credible.

48 Conversely, in assessing the credibility of the defendant, I took into account the fact that the defendant, in his demeanour, appears to be a diffident person, lacking significantly in self-confidence. Further, he was cross-examined by experienced and very capable counsel. No doubt he felt vulnerable, without the aid of counsel to assist him, and to take objections on his behalf. Nonetheless, and taking those qualifications into account, I have come to the conclusion that the defendant was not a credible witness. First and foremost, it is clear that the defendant told what I consider to be a significant untruth in his evidence. As I have stated, in his evidence in chief, when I asked him about the swimming pool incident, he expressly stated "There would have been lots of people there and I'm not going to expose myself in front of anybody". He later confirmed that he would not lower himself to expose himself to other people. When his previous conviction was put to him, he then conceded that he had not told me the truth, and that indeed, previously, he had lowered himself to expose himself. The inconsistency in the defendant's evidence went, I consider, to an important aspect of it. In addition, the defendant sought to downplay the circumstances of the incident for which he has been previously convicted. His explanation of those circumstances lacked credibility. His untruthful statement to me - that he would not expose himself in public - and his lack of candour about his previous conviction, suggested to me that the defendant does have trouble confronting his previous conduct.

49 In a number of other respects there was, I consider, a tendency of the defendant to endeavour to embellish or overplay his denials. When cross-examining the plaintiff, the defendant asserted that he only took his young daughter to the swimming pool for swimming lessons. However, in cross-examination, he ultimately conceded that there may have been occasions when he was at the local pool with his wife and child, in company with the plaintiff and her family. In a similar vein, the defendant sought to diminish the nature and extent of the friendship which he and his wife had had with the plaintiff's parents. Ultimately, it emerged, in cross-examination of HB, that the amount of contact between the two families was significantly more substantial than that conceded by the defendant. For those reasons, I do not regard the defendant as a reliable witness in the case.

50 The other witness in the case was the defendant's wife, HB. I consider that HB endeavoured to be a witness of truth. However, the circumstances of her husband's conviction for indecent exposure, in 1997, formed an important context in which to assess HB's evidence. Almost immediately after that incident, HB and the defendant left the local town in which they had resided, and came to live in Melbourne, in order to make a new start. HB stated that the circumstances were particularly painful to her. She appeared to me to be a very loyal wife, who has endeavoured to rebuild her life with the defendant in Melbourne. It is understandable that she would have a natural inclination to be defensive about events which preceded the departure of herself and her husband from the small country town in which they had resided, and in which, hitherto, they had made close friends. I gained the strong impression that she has tried to put the difficult events, which preceded the departure of her husband and herself from the country, behind her, and that that affected the manner in which she gave her evidence and the substance of her evidence.

51 Thus, for example, HB endeavoured to minimise the degree of friendship which she and her husband had had with the plaintiff's parents. However in cross-examination it emerged that the level of contact between the two families was significantly greater than that portrayed by HB in her evidence in chief. Similarly, HB bluntly denied that, before the issue of proceedings in this case, she had any knowledge of the allegations made on behalf of the plaintiff. The plaintiff's parents, some two years before the indecent exposure case, substantially terminated their relationship with HB and the defendant. On her account, HB did not ask why that occurred. Similarly, HB had been a close friend of SM's sister, EL. That relationship also terminated at about that time, but HB could not recall whether EL had related to her the allegations made by the plaintiff. Again, I detected a tendency by HB to endeavour to put the events of the 1990s behind her, and to avoid confronting the fact that particular painful events, affecting her husband, had indeed taken place.

52 Thus, in my assessment of the witnesses, I find the plaintiff and her mother, SM, to be witnesses of truth. For the reasons which I set out above, I do not regard the defendant is a reliable witness, and I have a number of reservations about the reliability of the evidence of HB.

53 The critical question, then, is whether the evidence of the plaintiff and her mother is sufficiently cogent and convincing to satisfy me, on the balance of probabilities, that the events related by the plaintiff are true. There are, in my view, three particular factors which lend support to the plaintiff's account. First, I am satisfied on the evidence of both the plaintiff and her mother, that there was an incident at the local pool, in which the plaintiff, in the presence of the defendant, complained to her mother that the defendant had exposed himself to her while she was under water. I accept the evidence of SM that, when the plaintiff made that complaint, the defendant said "If that happened it would have been an accident, it must have fallen out the side". That statement was, in my view, a partial admission by the defendant of the event related by the plaintiff. There was no suggestion by the defendant, in his evidence, that such an event could have accidentally occurred. Indeed, in cross-examining the plaintiff, he suggested that it would not have been possible for him to have exposed himself, given the swimming togs which he was probably wearing. I therefore regard his statement to SM, which I just quoted, as a partial admission by him of the truth of the allegation made by the plaintiff on that date.

54 The second significant factor concerns the incident related by the plaintiff in respect of the Chinese priest. I am satisfied on the balance of probabilities that the phone call, alleged by the plaintiff in her evidence, did occur. That phone call took place when the plaintiff was older. As I have stated, I consider that the plaintiff was a witness of truth. The content of the phone call lends support to the evidence of the plaintiff that, in early years, the defendant had had an inappropriate sexual attitude to her.

55 The third significant factor which, in my view, supports the evidence of the plaintiff, consists of the false denial by the defendant, in his evidence, that he was the sort of person who would expose himself to others. I take into account the fact that there may be other explanations for that untruth, other than a consciousness by the defendant of his previous sexually inappropriate conduct to the plaintiff.[8] However, the false denial was made in the context of evidence by the defendant that he would never expose himself in a public place. The untruth not only damaged the defendant's credit. In my view, the probable inference to be drawn from it was that the defendant, cognisant of his previous inappropriate sexual conduct to the plaintiff, had falsely sought to bolster his credibility on that issue.

56 For the reasons which I have set out above, I therefore accept, and am satisfied on the balance of probabilities, that the three specific incidents related by the plaintiff, and referred to as the swimming pool incident, the wood shed incident, and the toilet incident, did occur in the manner described by the plaintiff in her evidence. The toilet incident, and the wood shed incident, involved a physical assault by the defendant to the plaintiff. While no contact was made between the plaintiff and the defendant in the swimming pool incident, nonetheless I am persuaded that that incident also amounted to a civil assault. In her evidence the plaintiff stated that when was under water the defendant, having pulled his penis out of his swimming togs, "shoved it in my face under water". In my view that conduct constituted a threatening act of immediate illicit physical contact of the kind which could be properly described as a civil assault.[9]

57 The plaintiff also alleged that the type of conduct, described by her in the three incidents, occurred on other occasions. However, her evidence to that effect lacked any specificity or exactness. In final address Mr Monti recognised that circumstance, and submitted that I should find that the other, unspecific incidents, were no more than the background to the three assaults which I have found proven against the defendant. In my view, that concession by Mr Monti was correct.

58 It is therefore necessary to consider the defence, pleaded on behalf of the defendant, that the plaintiff's cause of action is barred under s 27E of the Limitation of Actions Act 1958. That section provides as follows:

"(1) This section applies to a cause of action to which this Part applies which is founded on a personal injury to a person who was under a disability at the date of the act or omission alleged to have resulted in the personal injury.

(2) An action in respect of a cause of action to which this section applies shall not be brought after the period of whichever of the following periods is the first to expire-

(a) the period of 6 years from the date on which the cause of action is discoverable by the plaintiff;

(b) the period of 12 years from the date of the act or omission alleged to have resulted in the personal injury with which the action is concerned."

59 Section 27F provides that a cause of action is discoverable by a person on the first date that that person knows, or ought to have known, the fact of the personal injury, the fact that that injury was caused by the fault of the defendant, and the fact that the personal injury was sufficiently serious to justify the bringing of an action on the cause of action. Section 27F(2) provides that a person ought to know of a fact at a particular date if the fact would have been ascertained by the person had the person taken reasonable steps before that date to ascertain the fact.

60 It is important to bear in mind that s 27E(2) provides that the proceeding must be brought before the expiration of the first of the two alternative periods of time referred to in that sub-section. Sub-paragraph (b) of s 27E(2) provides that the cause of action shall not be brought after the expiration of the period of 12 years from the date of the act or omission which is alleged to have resulted in the personal injury with which the action is concerned. In this case, the plaintiff has alleged that she sustained her injury between the age of 5 and 10 years. She was only able to provide a rough approximation of her age at the time of the three alleged assaults. Nonetheless it would seem that the last of the three assaults, which I have found proven, occurred when she was about eight years of age. Thus, if s 27E applies to this proceeding, the plaintiff's cause of action became barred in approximately 2000, or, at the very latest, 2002.

61 The plaintiff has relied, in response, on s 27I of the Act. That provision is entitled "Special limitation period for minors injured by close relatives or close associates". Sub-sections (1) and (2) provide as follows:

"(1) If a cause of action is founded on the death of or personal injury to a person (the victim) who was a minor at the date of the act or omission alleged to have resulted in that death or personal injury and the cause of action is against a person who at that date was a parent or guardian of the victim or a close associate of a parent or guardian of the victim-

(a) the cause of action is, for the purposes of this Part, deemed to be discoverable by the victim when the victim turns 25 years of age or when the cause of action is actually discoverable by the victim, whichever is the later; and

(b) the long-stop limitation period for the cause of action is the period of 12 years from when the victim turns 25 years of age.

(2) A person is a close associate of a parent or guardian of the victim if the person is a person whose relationship with the parent or guardian is such that-

(a) the parent or guardian might be influenced by the person not to bring an action on behalf of the victim against the person; or

(b) the victim might be unwilling to disclose to the parent or guardian the act or omission alleged to have resulted in the death or personal injury."

62 Section 27A(1) defines "long-stop limitation period" as follows:

"'Long-stop limitation period', in relation to a cause of action for damages that relate to death or personal injury, means the period of 12 years from the date of the act or omission alleged to have resulted in the death or personal injury with which the action is concerned."

63 The meaning of s 27I(1) is by no means clear, if not quite problematic. Section 27I(1)(a) does not on its own prescribe a period of limitation. Rather, it extends the time within which a cause of action might be deemed discoverable. Presumably s 27I(1)(a) is intended to apply to, and thus qualify, the period of limitation prescribed in provisions such as s 27E(2). Thus, for the purposes of s 27E(2)(a), the period within which the plaintiff's cause of action was discoverable by her did not commence until she was 25 years of age. By the terms of s 27E(2)(a), she would then have been entitled to commence a cause of action before she turned 31 years of age. However, as I have already pointed out, s 27E(2) contains two alternative periods of limitation, and provides that the applicable period of limitation is the first which is to expire. Thus, standing alone, s 27I(1)(a) of the Limitation of Actions Act would not assist the plaintiff in this case, because it would leave, unaffected, s 27E(2)(b), which would operate to bar the plaintiff's action from when she turned 20, or, at the latest, 22 years of age.

64 It is here that the meaning of s 27I(1)(b) is of critical importance. The terms of that sub-paragraph are entirely unclear, and indeed delphic. Section 27A(1)(a) prescribes the length of the period referred to as "the long-stop limitation period". However, there is no provision, in Part 2A Division 1 of the Act, which prescribes the meaning and effect of the phrase "long-stop limitation period".

65 Nevertheless, it is clear that s 27I(1)(b) is intended to have some effect.

66 If s 27I(1)(a) stood alone, it would provide no relief to a plaintiff who sustained an injury, at the hands of his or her parent, or a close associate of such a parent, when that plaintiff was less than 13 years of age. For, in such circumstances, the period of limitation, for that plaintiff, would have expired before the plaintiff reached the age of 25 years, by virtue of s 27E(2)(b). Such a construction of s 27I would lead to a manifest absurdity. If it applied in that manner, then a plaintiff would have less recourse, under s 27I, by virtue of being of more tender years when the injury was received at the hands of the parent or close associate, than if the injury were sustained between 13 and 18 years of age. Obviously s 27I was intended to expand the period of limitation for persons, on whose behalf a proceeding might not have been commenced, because the tortfeasor was either a parent, or an associate of the parent to whose influence the parent might have been subject. That objective would only be achieved, especially for those injured at a particularly young age, if the "long-stop" limitation period in s 27I(1)(b) were construed as displacing the period prescribed by s 27E(2)(b). Such an interpretation is, in my view, the correct construction of s 27I for three reasons. First, it avoids the clear anomaly, which I have described, that, otherwise, s 27I(1)(a) would be unavailable to those who are injured when under the age of 13 years. Secondly, it gives some meaning to s 27I(1)(b) which would otherwise be unintelligible. Thirdly, it gives effect to the clear legislative purpose of s 27I.

67 The construction of s 27I, which I have set out above, accords with the intention of the legislation as described in the Explanatory Memorandum to the Wrongs and Limitation of Actions Act (Insurance Reform) Act 2003, which introduced Part 2A to the Limitation of Actions Act. It is permissible, and in this case useful, to refer to the explanatory memorandum, pursuant to s 35(b)(iii) of the Interpretation of Legislation Act 1984. That memorandum, so far as it is relevant, states:

"Section 27I protects the interests of minors where there is a close relationship that may prevent a parent or guardian from bringing legal proceedings on behalf of the minor. This section refers to a minor in this situation as the 'victim' for the sake of clarity. This section provides that -

where a parent or guardian of a victim is the potential defendant; or
where the potential defendant is a close associate of a parent or guardian;

the limitation period runs from the later of the following two events:

• when the cause of action is actually discoverable by the victim.

The long-stop limitation period for the cause of action is 12 years from when the victim turns 25 years of age. It is considered that by the age of 25 years the plaintiff will have had a reasonable time to be free of the influence of the parent, guardian or potential defendant before having to commence the proceedings."

68 Thus, in my view, properly construed, s 27I(1) provides that, in the circumstances therein prescribed, the cause of action is barred either, under sub-paragraph (a), within six years of when the victim turns 25 years of age, or within six years of when the cause of action is actually discoverable by the victim, whichever is the later. Section 27I(1)(b) has the effect that the final date of that period of limitation shall be 12 years from the date upon which the victim turns 25 years of age.

69 On the evidence as I have already found it to be, I am satisfied that the defendant was a close associate of the parents of the plaintiff for the purposes of s 27I. I am satisfied that the plaintiff's parents were close friends of the defendant and his wife, and that the two couples trusted each other with their children. The relationship was such that when the plaintiff complained to her mother about the swimming pool incident, SM was angry with the plaintiff, and rebuked her. She was prepared to accept the explanation proffered by the defendant, namely that the incident might have been an accident, because she trusted the defendant, who was her husband's best friend, and she had "all the trust that I would have in my husband's best friend not to do something like that to my child". Later, when the plaintiff told her that other incidents had occurred, SM took steps to remove the plaintiff from the influence of the defendant, but took no other steps to vindicate the rights of the plaintiff. In 1995 when the police contacted SM, she told the police that the plaintiff did not wish to cooperate. The reasons given by SM for that attitude included a concern about gossip and embarrassment, but also were attributable to the tension between her husband and herself, arising out of the effect which any police action might have on the friendships which SM and her husband then had in the small town in which they resided. In those circumstances, I am well satisfied that the defendant was, for the purposes of s 27I, a "close associate" of both parents of the plaintiff. Accordingly it follows that, on the construction of s 27I(1) which I have outlined above, this proceeding is not barred under s 27E of the Limitation of Actions Act.

70 I turn then to the question of the quantum of damages to be awarded to the plaintiff in consequence of the assaults which I have found proven against the defendant.

71 As I have already set out, the plaintiff was particularly troubled during her teenage years. She indulged in inappropriate and erratic behaviour. Her relationship with her parents deteriorated. She still has a number of difficult unresolved issues with her mother, arising out of her perception that her mother failed to support her properly when she complained to her about the defendant's assaults. The plaintiff, and SM, both gave evidence as to how she is now obsessively and excessively protective of the young daughter. Further, the plaintiff gave evidence that the assaults have affected her sexual relationship with her partner. She does not like being touched and she and her partner do not have a very healthy sex life. As I have already set out, the plaintiff is particularly anxious at night, and takes extraordinary steps to give her any sense of security during the night hours.

72 The plaintiff has received counselling from Ms Lorraine Rowe, a psychologist. A report of Ms Rowe, dated 29 August 2006, was tendered in evidence. At the time of that report the plaintiff had consulted Ms Rowe on four occasions in July and August 2006. In summary, Ms Rowe was of the opinion that the plaintiff's developmental process has been significantly compromised by the sexual assaults. The plaintiff has developed complex and self-destructive coping mechanisms, in order to suppress her feelings of shame, confusion and responsibility for others. Those mechanisms have become inadequate in response to the powerful emotional response of motherhood. The plaintiff, in 2006, was suffering from severe post traumatic stress disorder, with delayed onset and severe impairment of her functioning. In addition she is severely anxious and hypervigilant. At the time of the report, the plaintiff was disturbed by her mother's betrayal of her trust, she feared for her infant's safety, and her relationship with her partner was significantly challenged. Ms Rowe reported that the plaintiff had been responsive to counselling, so that her prognosis is relatively positive. It was expected that her adjustment would be gradual. Ms Rowe recommended that the plaintiff undergo counselling over a two year period, which would consist of some 30 consultations.

73 In addition, the plaintiff was examined by Dr Michael Epstein, psychiatrist, in October 2006. Dr Epstein expressed the view that the plaintiff manifested common symptoms observed in adult survivors of childhood sexual abuse, including chronic depression with low self-esteem, a history of risk taking behaviour which included binge drinking, promiscuous sexual activity, difficulty showing affection to males, and great concerns about the safety of her daughter. From a diagnostic point of view, Dr Epstein considered that the plaintiff suffers from chronic dysthymia, which has been present since childhood, together with a chronic post-traumatic stress disorder, which has become worse since she commenced legal proceedings against the defendant. Dr Epstein stated that the plaintiff requires continuing psychological treatment which should be at least weekly for three months, every two weeks for a further six months, and then monthly for 12 months. The usual cost of such treatment is $250 per session. The plaintiff may also benefit from the use of medication for her depression. Dr Epstein concluded that the plaintiff's prognosis remained uncertain in the absence of appropriate treatment.

74 The principal component of the plaintiff's claim for damages consists of a claim for general damages for past and future pain, suffering and loss of enjoyment of life. I am satisfied that, as a consequence of her assaults, the plaintiff has suffered, from an early age, from psychological and emotional disturbance. I accept, on the evidence, that the assaults were such as to precipitate inappropriate and erratic conduct in the plaintiff's teenage years. Further, the plaintiff has continued to suffer the florid symptoms described by Ms Rowe and Dr Epstein. The assaults have, to a considerable degree, deprived the plaintiff of what should have been a normal happy childhood and adolescence. They have significantly impaired her capacity to relate appropriately to those who are close to her, including her parents, her partner and her infant daughter. Thus, for a period of almost two decades, the plaintiff has suffered substantially in terms of mental and emotional pain, and her quality and enjoyment of life has been significantly diminished, as a consequence of the assaults.

75 It is clear that the plaintiff requires a period of psychological counselling, as recommended by both Dr Epstein and Ms Rowe. Dr Epstein does not express any views as to the likely outcome of that treatment, other than to state that the prognosis remained uncertain in the absence of appropriate treatment. On the other hand, Ms Rowe, who has already commenced some treatment with the plaintiff, has indicated that the plaintiff has been responsive with the counselling she has so far received, and thus her prognosis is relatively positive. Neither report suggests that the plaintiff will totally recover from the emotional and psychological damage occasioned to her by the conduct of the defendant. In the short to medium term, therefore, it would be appropriate to assess the plaintiff's claim for general damages on the basis that her current condition will continue, but will commence to diminish with appropriate treatment. In the longer term, I take into account that, with appropriate treatment, it is likely that the plaintiff's symptoms will abate, but will not disappear. On the other hand there is, I consider, a realistic possibility that the treatment may not be as successful as predicted by Ms Rowe. It is therefore appropriate to take into account the chance that Ms Rowe's prognosis may prove to be overly optimistic.

76 With my encouragement, Mr Monti proffered a figure, and a range of figures, which he submitted would be appropriate to award the plaintiff for her general damages. Mr Monti submitted that I should award his client $75,000, and that the appropriate range was approximately $60,000 to $75,000. The quantification of general damages in a case such as this is not without its difficulties. However, in my view, the amount to be awarded to the plaintiff must adequately cater for the substantial diminution of the quality of her life during her childhood and adolescence, together with catering for the ongoing sequelae of the defendant's molestation of her during her childhood. In my view, taking those matters into account, I consider that it is appropriate to award the plaintiff the sum of $65,000 by way of general damages.

77 The plaintiff also claims special damages, consisting of the future cost of her psychological treatment. If the plaintiff were to undertake the course of treatment recommended by Dr Epstein, then, at the rate of $250 per consultation, that treatment would cost her $12,000. The plaintiff has had little treatment so far. She told me that she had some difficulty arranging an appointment with Ms Rowe because of Ms Rowe's unavailability, and also because she was reluctant to leave her daughter in order to undergo the treatment sessions. It is clear that the plaintiff needs the regime of treatment recommended by Dr Epstein and Ms Rowe, and that without that treatment she will continue to suffer from the symptoms which afflict her and which have afflicted her for some time. Nonetheless, given that the plaintiff has only undertaken limited treatment to date, I consider that I should discount the plaintiff's claim for special damages, to allow for the contingency that the plaintiff may not undertake all the treatment suggested by Dr Epstein and Ms Rowe. I should also discount the amount to be awarded to the plaintiff, for this category of damages, to present day value. Accordingly, I award the sum of $7,000 by way of special damages to the plaintiff, consisting of the cost of her further psychological treatment.

78 Exemplary damages are rarely awarded, and are regarded by the law of tort as an exceptional remedy. They are awarded to punish conscious wrongdoing in "contumelious disregard" of another's rights. In essence, there must be conduct which is disgraceful, humiliating or contemptuous of the rights of others.[10] An award by way of exemplary damages should only be made when the compensatory damages are insufficient to punish and deter the defendant.[11] Where a Court considers that it is appropriate to make an award of exemplary damages, it is necessary to exercise restraint and moderation in determining the quantum of those damages.[12]

79 In light of my findings that the defendant did sexually assault the plaintiff when she was a very young child, it is clear that the defendant's conduct was such as could properly be regarded as conscious wrongdoing in contumelious disregard of the plaintiff's rights. Very little evidence has been put before me as to the financial position of the defendant. In evidence he told me that he is a bricklayer. His wife is a registered nurse and is a nurse unit manager at a large public hospital. They live in rented accommodation in the suburbs. They have a daughter aged 24 years.

80 The conduct of the defendant was particularly egregious. On more than one occasion he sexually assaulted a young child who was entirely helpless to resist. His conduct was calculated to produce significant long term injury to the plaintiff. It destroyed and violated the innocence of her childhood, and was calculated to diminish significantly the enjoyment by her of her childhood and adolescence, and to cause serious long term injury to her. Notwithstanding the amount of general and special damages which I have awarded against the defendant, I have come to the conclusion that, in the circumstances of this case, it is both appropriate and necessary to make an award of exemplary damages, to deter the plaintiff and other like minded wrongdoers, and to mark the Court's condemnation of the defendant's behaviour.[13]

81 Bearing in mind the requirement that I exercise restraint, and taking into account the amount of special and general damages awarded to the plaintiff, in my view it is appropriate to fix the exemplary damages to be paid to the plaintiff in sum of $7,500.

82 Accordingly, for the reasons I have set out above, I am satisfied, on the balance of probabilities, that the defendant did sexually assault the plaintiff on the three occasions described by the plaintiff in her evidence. I am also satisfied on the balance of probabilities that those were not the only occasions on which the defendant was guilty of such conduct towards the plaintiff. However, in the absence of any specific evidence as to other incidents, I am only prepared to make specific findings as to the proof of the three assaults specifically described by the plaintiff in her evidence.

83 Further, for the reasons I have already set out, I award the plaintiff the following sums by way of damages as a consequence of the injury sustained by her arising out of the defendant's assaults of her:

84 I shall hear further argument in relation to the issues of interest and costs.

[1] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 354 (Rich J), 362-3 (Dixon J); Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517, 521.

[2] Compare Longman v R [1989] HCA 60; (1989) 168 CLR 79, 91 (Brennan, Dawson and Toohey JJ).

[3] R v Osborne [1905] 1 KB 551, 561 (Ridley J).

[6] Anderson v Anderson & Sullivan (No 3) [1965] QWN 15 (Stable J); R v Camilleri [1999] VSC 160, [7] (Vincent J); Attorney-General (NSW) v TCN Channel 9 Pty Ltd (1990) BC 9002260 , 24 (Hunt J).

[8] Compare Edwards v R [1993] HCA 63; (1993) 178 CLR 193, especially 209 - 211 (Deane, Dawson and Gaudron JJ).

[9] Compare for example Barton v Armstrong [1969] 2 NSWR 451, 454-5 (Taylor J); Bunyan v Jordan [1937] HCA 5; (1936) 57 CLR 1; Brady v Schatzel [1911] QSR 206, 208; Stephens v Myers (1930) 4 C&P 349, 350 (Tindal CJ); Hall v Sheiban [1989] FCA 72; (1989) 85 ALR 503, 572 (French J).

[10] Gray v Motor Accident Commission (1998) 196 CLR 1, 9; State of Victoria v Horvath & Ors [2002] VSCA 177; (2002) 6 VR 326, 349 [60].

[11] Cassell & Co Limited v Broome [1972] UKHL 3; [1972] AC 1027, 1029 (Lord Reid); Backwell v AAA [1997] 1 VR 182, 184 (Tadgell JA), 208 - 210 (Ormiston JA).

[12] De Reus v Gray [2003] VSCA 84; (2003) 9 VR 432, 457 [38] (Winneke P); XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1985] HCA 12; (1985) 155 CLR 448, 463 (Gibbs CJ).

[13] Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1, 9-10.

Actions Act](/cgi-bin/viewdoc/au/legis/vic/consol_act/loaa1958226/) (Insurance Reform) Act 2003

Legislation Act 1984

Actions Act](/cgi-bin/viewdoc/au/legis/vic/consol_act/loaa1958226/) (Insurance Reform) Act 2003

Legislation Act 1984

Actions Act](/cgi-bin/viewdoc/au/legis/vic/consol_act/loaa1958226/) (Insurance Reform) Act 2003

Legislation Act 1984

At a glance

Court

Decision date

Before

Source

Judgment (116 paragraphs)

Parties

Legislation Cited (9)

Cases Cited (11)