Shaw v McGee & Anor

The plaintiff's version of events at the Park 8The Park is situated at XXX Road in the suburb of Wilberforce. The facilities include cabins, which contain a bathroom, a kitchenette and a small bedroom. 9In March 2007, while waiting for Housing Commission accommodation, the plaintiff and Mr Varga commenced renting a cabin in the Park. The rent was $70 per week. 10At the commencement of the rental the plaintiff signed a " lease type " document. She also received a copy of the Park Rules and Regulations (Exhibit C). The defendant, by its pleadings, admits that the arrangement with the plaintiff included a term that: "During her residency at the Van Park the plaintiff would have quiet enjoyment of her residence" . 11Exhibit D is an aerial photograph of the Park. The circle indicates the office. The rectangle shows the location of the plaintiff's cabin. 12During the week the office was staffed by a Ms Anne Cxxxx, apparently also known as Ms Lxxx Jxxxx. The office included a reception area and a residence. Ms Cxxxx introduced Mr McGee to the plaintiff as the caretaker and maintenance person. 13The plaintiff submitted that the role of a caretaker extended to the care of persons living in the Park. I do not agree. A caretaker, especially in the context used here, is limited to the care of property. 14Even applying my interpretation of 'caretaker', the defendant denied Mr McGee was the caretaker. It said he was an independent contractor. He was contracted to perform maintenance work. 15Mr McGee lived in a residence attached to the office. The plaintiff called upon his services on the day she moved in. He replaced two washers in the shower. According to the plaintiff he was then "very nice" . 16In August 2007 the plaintiff received the police brief for the sexual assault (Exhibit B, excluding the Westmead Hospital documents) from her solicitor, Mr Weller. She was concerned about the security of these documents so she took them to the office where she spoke to Mr McGee. She asked him to put the documents in the safe. He said he would, "so no-one could read it" . The documents were in an envelope. She saw Mr McGee put the envelope in a cupboard on top of the safe. She assumed that he would place it in the safe. She did not discuss the contents of the envelope with him. 17On 11 October 2007 the plaintiff was returning to her cabin from the office. Mr McGee approached her and said "Can I see your tits. You give it up to all the bikes" . She replied "No" and walked to her cabin. Mr McGee came up behind her and undid her bikini top. This exposed one of her breasts. She ran into the cabin and told Mr Varga. She felt "embarrassed and hurt" . 18About half an hour later the plaintiff went to the office and reported the incident to Ms Cxxxx. She saw Ms Cxxxx write it in a book, which she described as being of about A4 size, black with red corners and a hard cover. It was a book in which Ms Cxxxx "wrote everything" . 19A call was made for the book. It was not produced. Counsel for the defendant, in rejecting the call, said "it does not exist" . 20The following day the plaintiff reported Mr McGee's assault to the police. The police records are Exhibit E. 21The COPS report corroborates the plaintiff's version of the event as given by her in evidence. It also contains these matters: (a)The person of interest "Murry is described as the care taker of van park". His work phone number is the same as that of the Park as disclosed in Exhibit C. (b)His occupation is described as "Director, builder" . (c)His contact address is the " Windsor Riverside Caravan Park ". (d)The plaintiff declined to make a statement and said that she "wished to put the matter behind her" . 22The police spoke to Mr McGee on 24 October 2007. Later on the same day Mr McGee abused the plaintiff for ringing the police and "putting him in to them" . He called her a "fat slut and bitch" . The plaintiff told Ms Cxxxx who said that she would have to "report it to the owner and make a note ". She appeared to write in the same black book. 23There then followed a continuous sexual harassment of the plaintiff by Mr McGee. On one occasion, in early November 2007 the plaintiff asked Mr McGee for a washer for the sink. He grabbed her left breast. The plaintiff managed to break his hold. She pushed him away and ran into her cabin. She "felt dirty" and wanted to have a shower. The plaintiff again reported the matter to Ms Cxxxx and also to the police. Ms Cxxxx's reaction, as before, was to make an entry in the black book and indicate that she would contact the owners "to deal with Murray" . The owner never contacted the plaintiff. 24The plaintiff said Mr McGee's improper activities continued. He would cut the power to the cabin. He would sit on a picnic table and stare at the plaintiff. She was scared. Ms Cxxxx told her not to go to the office while Mr McGee was there. Often he would drive by in his yellow Mercedes Benz and shout out "show us your tits bitch" . 25In December 2007 yellow paint was thrown on the verandah of the plaintiff's cabin. She linked this incident to information that was in the police brief concerning a yellow rag. She told Ms Cxxxx about the link. Ms Cxxxx responded that Mr McGee would not have thrown the paint. She said "it could be anyone" . 26The plaintiff said that Mr McGee was paying people to harm her. They would throw things on the roof. 27The plaintiff said that in addition to telling the police and Ms Cxxxx about the events of 11 October 2007 she also told her solicitor, Mr Weller. She again spoke to him after Mr McGee grabbed her left breast. 28It was suggested to the plaintiff that some of the histories about the activities of Mr McGee were reported differently to Dr Klug and Ms Keegan. There certainly are some differences; however, I bear in mind the warnings given by Basten JA in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 (at paragraph 8) and Mason v Demasi [2009] NSWCA 227 (at paragraph 2) concerning the reliability of histories in medical reports. In addition Ms Keegan, in her oral evidence, said some of the details contained in her reports were derived from her memory. She did not make notes during consultations. 29It was never suggested to the plaintiff that she had fabricated her allegations against Mr McGee concerning the two physical assaults. It was put to the plaintiff that her allegations of continuing harassment were not true. No evidence was called by the defendant to positively rebut the plaintiff's evidence. Rather it was suggested that the lack of expected corroboration of her evidence made it likely to be untrue. 30The plaintiff accepted that she did not see Mr McGee actually cut off her power or put the yellow paint on her verandah. She assumed he did these things because of his general behaviour. A Mr Rxxx also told her that he had helped Mr McGee in cutting off her power. In fact, he had burned his hand while cutting a power cord. A neighbour also mentioned Mr McGee's involvement. 31The plaintiff said that Mr McGee had abused her, verbally, at least 20 to 30 times. She had constantly spoken to the police. The plaintiff said Mr McGee's behaviour continued until she left the Park in July 2008. 32On 20 November 2007 the plaintiff applied for an Apprehended Violence Order (AVO) against Mr McGee. Interim orders were made on 12 December 2007. I understood this was the only occasion on which Mr McGee attended court. The final orders were made on 6 February 2008. The orders were varied on 17 December 2008 to cater for a change of the plaintiff's address. The AVO documents are contained in Exhibit F. 33Documents produced by the police (Exhibit 11) do not mention any complaints after November 2007. The plaintiff submitted this was because no police action was taken. The defendant said this was unlikely because the harassment would have been in breach of the AVO. Neither side called any police officer concerning the alleged complaints. 34The plaintiff received a notice to quit the premises on 19 November 2007. It was put to her that there was a connection between her application for the AVO the following day and the notice. She rejected the suggestion. She said that the application would have been generated some time before the notice because it required a previous telephone call to make an appointment with the Chamber Magistrate. 35Following the making of the AVO Mr McGee would still harass the plaintiff but was careful to remain outside the prescribed distance under the conditions of the order. The plaintiff also suspected that Mr McGee contacted Centrelink, which stopped paying the plaintiff's rent at the Park. 36The plaintiff said that Ms Cxxxx told her that her mail would be "returned to sender". It was suggested this evidence was "nonsense" . The plaintiff disagreed. The plaintiff was also shown a number of soft covered blue coloured books (Exhibit K). She said they were not the books that Ms Cxxxx had made her entries in. 37As a result of Mr McGee's activities the plaintiff said that she once again became depressed. She had nightmares and she was very scared. She returned to Ms Keegan for treatment on 4 July 2008. The treatment has continued to the present. Since the Park 38In July 2008 the plaintiff and Mr Varga moved to the Central Coast where they took up occupation in a hotel. The plaintiff had recently received the $30,000 from the Victims Compensation Tribunal and so was able to afford the cost. 39In October 2008 the plaintiff and Mr Varga moved back to the Windsor area to enable the former to consult Ms Keegan more frequently. She was not coping. She had returned to a "dark hole" . Her nightmares were about Mr Bxxx, the two men that had sexually assaulted her and about Mr McGee. Her dreams would include being locked in a room with Mr McGee and not being able to find the door. 40In November 2008 the plaintiff saw Mr McGee at the Heritage Hotel. He was asked to leave. He continued to taunt her. 41The plaintiff said that she still suffers from depression. She is scared of her future. She cannot go to places alone. She needs company "24/7" . 42The plaintiff does care for a grandchild for two or three days a week. He is dropped at her house at 5am. She takes him to school and picks him up and then looks after him until about 5pm. 43The plaintiff is on antidepressant medication (Lexapro). This helps her but makes her "foggy" . She finds it hard to make decisions. Her home is a safe haven. When she was in the witness box she said she wanted to "run back there" . 44The plaintiff had taken antidepressant medication before moving to the Park but the details, of time and type of medication, are unclear. 45The plaintiff said that before Mr McGee's activities began she had hoped to commence courses that would ultimately lead to her becoming a domestic violence counsellor. She does not feel able to do them at the present time, although she is hopeful of making an attempt in 2012. The plaintiff said that at the moment she feels she is in a "holding pattern". 46It emerged in cross-examination that Mr Varga had assaulted the plaintiff in November 2009. An AVO was taken out preventing him from harassing or assaulting her. He was, however, allowed to continue living with the plaintiff. She said the incident was a result of his frustration at her being depressed and homebound. She said she was not scared of Mr Varga any longer. 47There was a second incident involving Mr Varga. In November 2010 he was given a Court Attendance Notice to attend Penrith Local Court. He was charged with breach of the previous AVO, common assault and destruction of property. The facts are described in Exhibit 2. 48The plaintiff agreed that she had injured her back in the assaults by Mr Bxxx and that she continued to suffer from this injury. Her back problems prevented her from carrying out domestic tasks. This situation has been constant since the assaults. 49The plaintiff also agreed that the mental health condition from which she presently suffers was present both after the assaults by Mr Bxxx and after being raped in 2005. She did, however, say that in respect of each these incidents that over time the conditions had ameliorated. This is certainly the impression that is to be gained from the medical reports that refer to an exacerbation following Mr McGee's activities. 50The plaintiff agreed under cross-examination that when she saw Mr McGee at the Heritage Hotel in November 2008 it made her feel worse. On this occasion Mr McGee also continued to harass her by calling things out, although she was not sure precisely what he said.

Other lay witnesses for the plaintiff 51Mr Varga gave evidence. His appearance somewhat contradicted his manner. Upon entering the witness box I had the impression of a hard man who might give little quarter if challenged. His manner, however, was quite to the contrary. He gave his evidence quietly, politely and I thought honestly. 52He said he first met the plaintiff when he moved into her house as a boarder in April 2005. He found both her and the premises "a mess" . He started to do the housework. A relationship soon formed. After some time he suggested that he and the plaintiff should leave their house and live elsewhere. There were then a series of moves ultimately culminating in March 2007 with the move into the Park. He said that at this stage the plaintiff was "a little bit of a mess, really stressing out" . Once they had moved in, however, he observed that she was gradually improving. She was able to go to the shop or the office and she was socialising. I think his evidence graphically depicted the effects on the plaintiff of the rape in 2005. 53Mr Varga said that Ms Cxxxx had introduced Mr McGee to him as the caretaker. He understood Ms Cxxxx was the manager. He said that Mr McGee lived in the residence behind the office. He drove a yellow Mercedes Benz and at one stage used it to pull a trailer after the Park's tractor broke down. 54Mr Varga said that as the stay at the Park continued the plaintiff appeared to be happy and she socialised with other Park occupants. Nevertheless he still did most of the housework. 55Mr Varga said that Mr McGee was always touching the plaintiff. He asked him to stop but to no avail. 56One day Mr Varga saw the plaintiff come into the cabin screaming. She told him that Mr McGee had tried to undo her top. He said tree loppers were present. I think he may have been confusing this episode with the occasion when Mr McGee grabbed the plaintiff's breast. 57Mr Varga also described the grabbing of the breast incident. Again the plaintiff was screaming. She said she had already been through these sorts of events. She was shaking and looking around everywhere. 58Mr Varga said that Mr McGee was "always around" . On one occasion another Park occupant (Kerry who is now deceased) said about Mr McGee: "Watch him, he's just trying to get into her pants" . 59Mr Varga described Mr McGee's attempts to extort rent from residents. He would disconnect their power and take away furniture. He would demand payment of rent before returning the furniture. A Mr Gill later gave a different reason for the presence of the furniture. He said the furniture had been left over when tenants left. 60Mr Varga said that when he went to the Central Coast with the plaintiff in 2008 she seemed much happier. 61In April 2007 Mr Varga was granted a carer's pension. This was extended in December 2008 to include a carer's allowance. It was a little difficult to understand how these payments operated but I think, in summary, they amount to him now receiving a total of $550 per fortnight. 62Mr Varga said that the plaintiff was now getting better. She went to the shops by herself and she looks after a grandchild. She nevertheless has relapses and he still does everything about the house. He said that the plaintiff had nightmares every night and she was very forgetful. 63In relation to the assaults in 2009 and 2010 (Exhibits 2 and 3) Mr Varga seemed to minimise their severity categorising them as part of the ups and downs in a relationship. This was the one area of his evidence that I did not find satisfactory. 64Mr Varga said that he hoped to return to work and also to marry the plaintiff later in the year. He said he had always wished to go back to work but the plaintiff would not let him do so because she did not feel safe. She was also now worried about her ex-husband, Mr Bxxx, because he has "turned up somewhere" . 65Mr Leslie Gill has been a resident at the Park for the last 11 years. He met the plaintiff at the Park. She was in the next cabin. He said there had been numerous caretakers. One of them was Mr McGee. When he arrived Mr McGee introduced himself as the new caretaker. He said "I run the place now" . Mr Gill was not cross-examined.

The defendant's witnesses 66Mr John Bourke is the sole shareholder and director of the defendant company. He also has the same status in respect of another company called Oak Twig Pty Ltd. The latter company trades under the name of Home Plan Project Design Resources ("Home Plan"). The defendant company owns the Park. 67Mr Bourke had a long association with Ms Cxxxx. She had originally been engaged to work at a different park in 1990. She later moved to another activity but was re-engaged in 2005 to be the office manager at the Park. Mr Bourke knew that she held herself out as the manager. 68Mr Bourke said that Ms Cxxxx provided a weekly report of financial matters. In addition, he said that Ms Cxxxx had been instructed to record complaints and requests for maintenance in books such as those that constitute Exhibit K. The procedure was for her to remove the duplicate pages each week and send them to the head office. This obviously did not happen because an examination of the books reveals that very few duplicate pages have been removed. When I pointed this out to Mr Bourke he said that Ms Cxxxx may have faxed copies. This answer seemed to me to be an unsatisfactory attempt to cover what was obviously a previously erroneous answer. 69Mr Bourke said that he visited the Park from time to time. He said that he had never seen a black book in Ms Cxxxx's office. He had searched for it but had not found any such book. He gave this evidence: "Q. Now you heard expression, or talk about a black book? A. Yes. Q. That Ms Cxxxx was said to write in. Did you visit the van park from time to time? A. Yes I did. Q. Did you visit Ms Cxxxx in the office? A. Yes. Q. Did you ever see a black book with red points or red markings on it? OBJECTION. LEGAL ARGUMENT. QUESTION ALLOWED. Q. Mr Bourke, did you observe a black book with red points I think, I think the way it was described, in Ms Cxxxx's office? A. No I did not. Q. Have you ever seen such a book in Ms Cxxxx's office? A. No. Q. Have you searched for such a book? A. We've searched, looked through all the old records, these are the books that were used, that's the only book that we instructed her to use. Q. Mr Bourke, I'm asking you, did you search for this book in the records of the caravan park? A. Yes. Q. For a black book? A. Looked through there, I didn't see any red or black book. Q. And did you look through the records at Home Plan? A. Yes. Q. And you have not seen a little black book? A. No.." (Transcript Day 4, page 8.24) 70When the matter resumed after a three month adjournment a black book, generally conforming to the plaintiff's description, was brought into evidence through a Mr Harris. As will be seen below he is a contractor who does occasional work at the Park. This book is Exhibit 13. It is a phone book. No explanation was given as to how it came to be found. The plaintiff, when recalled, said the book used by Ms Cxxxx was the same as Exhibit 13 except it had a sticker with " Complaints " written on the front. 71I do not accept Mr Bourke's evidence about the book. I also reject the defendant's submission that it was unlikely to have existed because there are complaints in Exhibit K. That does not exclude the possibility of a book dedicated to complaints. There are many things in Exhibit K besides complaints. They may have been entered by persons besides Ms Cxxxx. She may have had her own book dedicated to complaints. Whatever the case I see no basis for rejecting the plaintiff's evidence. 72In late 2007 or early 2008 Mr Bourke was informed that money was missing from the Park's takings. He spoke to Ms Cxxxx and instituted an audit. Ms Cxxxx later agreed to repay the money (about $22,000) provided she was able to obtain an extension on her mortgage. This was achieved and she made the repayments. It was later noticed, however, that the discrepancies continued and Ms Cxxxx was asked for an explanation in early 2010. Her response was to leave the premises and never return. Following Ms Cxxxx's departure Mr Bourke went to the office and noticed that a lot of paperwork was missing. 73Mr Bourke has not seen Ms Cxxxx since her departure. He understood she had gone to Queensland. This was the extent of any explanation for her unavailability. I do, however, acknowledge that she may not have been a willing witness having regard to her history with the Park. I also note that no efforts were made by the plaintiff to locate her after it was realised that she may not have been sympathetic. The parties agreed that I should not draw any inference that her evidence would not have assisted either side. 74Mr Bourke said that Mr McGee was contracted to carry out maintenance work. He was first engaged in 2006. He had his own tools and his own trailer. Mr Bourke said that Ms Cxxxx would provide him with a list of the work to be done and he would be paid upon submission of an invoice. 75About six months after he commenced his engagement Mr McGee apparently lost his residence. Because it was desirable that he should live close to the Park a townhouse behind the office was made available to him. Although the townhouse had a "rated" rent of $200 per week Mr McGee was only charged $170. No receipts for the rent or other documents evidencing payment, or any arrangement, were tendered. 76A number of invoices and notes of other payments were tendered. I particularly note the following: (a)The invoices should include GST. They do not. Mr Bourke said the arrangement was that the contract figure included GST. (b)The invoices in Exhibit L reflect payment for a regular five day week at set hours. (c)The payments for each week are the same. They are remarkably low considering they represent a gross payment for a full week's work. Mr Bourke said this was because the rent for the townhouse was factored in. (d)The payments do not vary with the changed description of the work being provided as set out in the invoices. (e)Mr Bourke said that as far as he was aware Mr McGee essentially only worked at the Caravan Park. (f)At least one of the payment records describes the moneys given to Mr McGee as "wages" (1/8/08 in Exhibit 8). 77Some of the entries in Exhibit K also raise issues about the nature of the relationship between Mr McGee and the defendant. I make the following comments against the background that Mr Bourke emphasised, on a number of occasions, that Mr McGee was engaged as a maintenance contractor. He was not a caretaker. (a)Page 156403: Murray is given a series of orders. These orders are inconsistent with his position as an independent 'maintenance only' contractor. They also suggest a degree of control over his activities. (b)Page 156422: Murray is paid $300. It is stated that $100 is owing. At 156423 the outstanding $100 is apparently paid. It is referred to as a wage. (c)Page 991725: Murray is directed to take money to the post office. Once again the entry is inconsistent with Mr McGee's status as only an independent maintenance contractor. (d)Page 991643: Mr McGee appears to be collecting rent. Mr Bourke said that as the entry is for a Saturday it suggests that the office may have been closed and Mr McGee was simply assisting. Mr Bourke was adamant that Mr McGee did not have authority to collect rent. (e)Page 991651: I think this is a particularly important entry: the entry refers to advertisements in the Sydney Morning Herald and The Land for a caretaker/handyman. It appears to have been made in early June 2008. Mr Bourke recalled that it was about this time that Mr McGee went to New Zealand. (f)When he was referred to the entry at 991684 Mr Bourke accepted that the advertisement referred to Mr McGee's position. He also recalled that another person provided services for two weeks. The entries on this page as well as on 991688 suggest Mr McGee may not have been welcome in the Park. Whatever the case it is clear from Exhibit 8 that he was back working by 25 July 2008. 78In relation to the plaintiff's allegations against Mr McGee, Mr Bourke said he received a telephone call in October 2007 from Ms Cxxxx saying that the police had been to the Park and told her about an incident with Mr McGee and the lady in Site 86 (the plaintiff). She told Mr Bourke that the police had said there appeared to be no case to answer. The police told her that the allegation was that Mr McGee had confronted the plaintiff and was supposed to have sexually abused her. Mr Bourke asked if there had been charges laid and was told there had not. Ms Cxxxx requested instructions. Mr Bourke responded that she should not give Mr McGee any jobs near or at Site 86 "to make sure nothing develops" . 79About a month later, on 22 November 2007, Mr Bourke received a facsimile from Ms Cxxxx (Exhibit 6). This is a somewhat unusual document that reflects, of course, on Ms Cxxxx rather than on Mr Bourke. Ms Cxxxx has made a number of assumptions about Mr Varga and the plaintiff that may not be correct. 80Mr Bourke said that after receiving the facsimile he telephoned Ms Cxxxx and told her to make sure that other contractors were used for work at or near Site 86. He mentioned a Mr Graham Harris. When Mr Harris gave evidence he did not say he had been assigned work at Site 86 instead of Mr McGee. 81Mr Bourke said he gave the same instruction over the telephone to Mr McGee about a week after the allegation was made. Mr McGee had protested that the allegation was "rubbish" and that he had not done anything wrong. Mr Bourke said that he took his word that "things were OK" . 82Mr Bourke emphasised that the general attitude of the Park was to leave all matters of improper conduct to the police. Dealing with conflicts involving tenants was outside the Park's capacity. There is some force in this statement. However it ignores the fact that the police would only become involved after an incident. On the plaintiff's evidence the Park was made aware of ongoing incidents and did nothing to stop them continuing. 83Notably Mr Bourke gave no evidence about the many phone calls that, on the plaintiff's evidence, he would have received from Ms Cxxxx. He gave no evidence about the many reports of harassment by Mr McGee or of any other areas of conflict between Mr McGee and the plaintiff. He said that following the issue in respect of which the police were called he was not aware of any other complaints by the plaintiff about Mr McGee's conduct. 84My acceptance of the plaintiff's evidence and, taking into account that her mental state was such that I believe it probable that she complained about every incident involving Mr McGee, suggests that either Ms Cxxxx did not forward the complaints to Mr Bourke or that he simply ignored them. The relationship that he described with Ms Cxxxx, namely that he telephoned her frequently and she sent weekly reports, suggests that she would have told him about the plaintiff's continuing complaints. Her description of the plaintiff in Exhibit 6 indicates that she regarded the plaintiff as a nuisance. I am satisfied that continual complaints by the plaintiff to Ms Cxxxx would have been passed on to Mr Bourke. 85Mr McGee finally left the Park in early 2009, apparently to return to New Zealand. Mr Bourke has not seen him since. Neither the plaintiff nor the defendant have made any real efforts to find him. 86Mr Bourke said that in December 2008 the arrangements to pay Mr McGee changed. Whereas the defendant had previously engaged him, he then had a new contract with Home Plan. There were no documents evidencing either his original contract or the new contract with Home Plan. 87Mr Graham Harris carried out handyman work at the Park during 2007 and 2008. He knew Ms Cxxxx and Mr McGee. He would go into the office from time to time. He noticed the black book (Exhibit 13). It was a phone numbers book. It was always in the office. This book was tendered through Mr Harris. There was no explanation as to why it may have been in his possession. His evidence that it was commonly seen directly contradicts the evidence of Mr Bourke (set out in paragraph 69, above). 88Mr Harris did not know the plaintiff. His evidence that he never saw Mr McGee abusing her is of no weight. The same applies to his evidence that he did not see Mr McGee cutting off the power. 89Other than as the surprising vehicle for the production of Exhibit 13 Mr Harris's evidence was of little relevance to the contentious issues.

Liability 90On the basis of the evidence I have little difficulty in making the following findings: (a)Mr McGee held himself out as the Park's caretaker. (b)The Park, through its manager Ms Cxxxx, held Mr McGee out as the caretaker. (c)The bikini incident and the grabbing of the left breast incident occurred as described by the plaintiff. (d)Mr McGee harassed the plaintiff by insulting her, staring at her and interfering with her use of the cabin. (e)The harassment continued until the plaintiff left the Park in July 2008. (f)Mr McGee's activities were reported to Ms Cxxxx. (g)Ms Cxxxx recorded, or at least appeared to record, the complaints in a black book. (h)Ms Cxxxx said to the plaintiff that she would report Mr McGee's actions to the owners. (i)No representative of the defendant contacted the plaintiff about her complaints. (j)Mr Bourke's directions to Mr McGee to stay away from the plaintiff's cabin had no effect on his harassment. The failure of the direction was made known to Ms Cxxxx (and therefore to Mr Bourke). (k)Mr McGee continued his harassment at the Heritage Hotel in November 2009, as described by the plaintiff. 91The effect of the above findings includes the following: (a)Whatever the status of Mr McGee (employee or independent contractor) the defendant was aware of his conduct in respect of the plaintiff. (b)Following the first complaint to Ms Cxxxx on 11 October 2007, the defendant's actions to shield the plaintiff from Mr McGee were minimal and of no effect. (c)The harassment affected the plaintiff's capacity to live safely at the Park. 92I will deal with the claim in negligence first. 93As stated above, the defendant admitted it was the occupier of the Park. An occupier has a duty to a lawful entrant to "take reasonable care to avoid a foreseeable risk of injury to the person concerned" ( Australia Safeway Stores Pty Ltd v Zeluzna (1987) 162 CLR 479 at 488). This formulation is consistent with Section 5B of the CLA. Even if some distinction can be discerned I am satisfied that, in terms of Section 5B, the risk of harm to the plaintiff was foreseeable and the risk was not insignificant. 94I am further satisfied that a reasonable person in the defendant's position would have taken precautions against the risk. The defendant had been informed of the first episode of improper conduct by Mr McGee. As soon as the second episode occurred it became reasonably foreseeable that Mr McGee's activities would continue. His actions were such that a risk of harm was not insignificant. 95For present purposes I think it sufficient to find that a risk of harm by, in effect a sexual predator, was not insignificant. The defendant, even as head contractor, was in a position to control Mr McGee's activities. In short it could, and should, have terminated his employment or contract, whichever was the case. Mr McGee should have been banned from the Park. 96I am satisfied that Section 32 of the CLA does not relieve the defendant of its duty of care. For convenience, I will give my reasons for this finding below when discussing Dr Klug's evidence. 97So far I have found against the defendant on the plaintiff's claim in negligence. It is accepted by the plaintiff that such a finding necessarily means that the harm done to the plaintiff by Mr McGee as a result of his first assault (on 11 October 2007) cannot be taken into account in the assessment of damages. 98Although I have dealt with it first, the claim in negligence was advanced by the plaintiff as an alternative to her primary allegations. These were that the defendant was directly liable for Mr McGee's activities in causing her harm and secondly, if not directly liable, then it was vicariously liable. 99The plaintiff's primary allegations relied heavily on the decision of the New South Wales Court of Appeal in Nationwide News Pty Ltd v Naidu & Anor [2007] NSWCA 377. 100The plaintiff submitted that Mr McGee had become the "will and mind" of the defendant company. Accordingly his actions were those of the company. The nature of Mr McGee's alleged status was described by Lord Reid in Tesco Ltd v Nattrass [1972] AC 153 at 170, in this way: "I must start by considering the nature of the personality which by a fiction the law attributes to a corporation. A living person has a mind which can have knowledge or intention or be negligent and he has hands to carry out his intentions. A corporation has none of these; it must act through living persons, though not always one or the same person. Then the person who acts is not speaking or acting for the company. He is acting as the company and his mind which directs his acts is the mind of the company. There is no question of the company being vicariously liable. He is not acting as a servant, representative, agent or delegate. He is an embodiment of the company or, one could say, he hears and speaks through the persona of the company, within his appropriate sphere, and his mind is the mind of the company. If it is a guilty mind then that guilt is the guilt of the company. It must be a question of law whether, once the facts have been ascertained, a person in doing particular things is to be regarded as the company or merely as the company's servant or agent. In that case any liability of the company can only be a statutory or vicarious liability." 101I would have no difficulty in attributing this status to Mr Bourke. I do, however, have difficulty in concluding that Mr McGee was the will and mind of the defendant company. 102The essence of the plaintiff's argument was that Mr McGee, for all intents and purposes, was the company carrying on its business at the Park. The plaintiff pointed out that Mr McGee was the caretaker, he lived on the premises and he was essentially responsible for all activities outside the office. The company's task was the management of the caravan park and Mr McGee was performing this in tandem with Ms Cxxxx. 103The plaintiff then pointed to the judgment of Beazley JA in Naidu , in particular from paragraphs 228 to 236. These passages include the portion of the judgment of Lord Reid that I have quoted above. Her Honour, in quoting Lord Reid, highlighted the words "within his appropriate sphere" . Her Honour then described the person in question in Naidu in this way: "236. In my opinion, Mr Chaloner's position and his responsibilities were such that he was in fact the "mind and will" of Nationwide News so far as the management of its security requirements were concerned. That responsibility included supervision of Mr Naidu's work. In this regard, it is irrelevant whether that situation evolved or was a matter of agreement (tacit or otherwise) between Nationwide News and ISS Security. In his "appropriate sphere", namely, the arrangement and implementation of security arrangements for Nationwide News, Mr Chaloner was an embodiment of the company." 104Mr Chaloner was a senior manager of Nationwide News. Mr Naidu was another, more junior, employee. Mr Chaloner, in very broad summary, bullied Mr Naidu. Although some of the bullying occurred outside of work it primarily took place within the sphere of Mr Chaloner's supervision of Mr Naidu. The position is different here. It was no part of Mr McGee's activities to supervise, or have anything to do with, the plaintiff other than meeting the requirements of the maintenance of her cabin. Secondly, and more importantly, I do not think Mr McGee was the mind and will of the company in his activities at the Park. He may well have been classified as an employee of the defendant but even in that capacity he was employed to carry out maintenance. He received directions from Mr Bourke, and sometimes Ms Cxxxx. He did not act with an independence that placed him in a different category to an employee doing his job. 105I think the distinction I am trying to draw was better put by Lord Diplock in Tesco Ltd in this passage: "In my view, therefore, the question: what natural persons are to be treated in law as being the company for the purpose of acts done in the course of its business, including the taking of precautions and the exercise of due diligence to avoid the commission of a criminal offence, is to be found by identifying those natural persons who by the memorandum and articles of association or as a result of action taken by the directors, or by the company in general meeting pursuant to the articles, are entrusted with the exercise of the powers of the company." (Page 199H) 106In my view, Mr McGee had not been "entrusted with the exercise of the powers of the company" . Rather he was carrying out the duties given him by Mr Bourke, the person who had been so entrusted. 107Accordingly, I reject the plaintiff's case of direct liability. 108Turning now to vicarious liability. I think the plaintiff has two hurdles to overcome: the first is to establish that Mr McGee should be treated as an employee of the company. The second is that his acts against the plaintiff were committed in the course of his employment (as explained by the High Court in New South Wales v Lepore (2003) 212 CLR 511). 109The defendant submitted that Mr McGee was no more than an independent contractor. It pointed out that he rendered invoices, he used his own tools, he did not wear a uniform and he used his own vehicle and trailer in carrying out some of his activities. 110The plaintiff responded that Mr McGee worked almost exclusively at the Park, he received a fixed "wage" every week, he was put up and seen as the Park caretaker and he lived on the premises. 111The principles to be applied are set out in Hollis v Vabu Pty Ltd (2001) 207 CLR 21. These principles emphasise the importance of "control" . I think the different indicators highlighted by the respective parties will have a part to play but, in my view, the telling factor is that Mr McGee was present at the Park to do the maintenance work that he was directed to do and generally look after the premises, other than the office. I think the plaintiff's description of him as a caretaker is correct (although using my interpretation of the position rather than the plaintiff's). In this role of caretaker, in which Mr McGee was available through the week, as well as after hours, he was performing duties at the request of the defendant. The defendant provided him with accommodation and gave him a weekly remuneration in order for him to perform the duties of a caretaker. In this status he was subject to the control of the defendant. Accordingly I think that the defendant could be vicariously liable for the actions of Mr McGee. 112This liability, as noted above, is of course subject to what he actually did and whether it is encompassed within the course of his employment. 113The Chief Justice in Naidu listed the various formulations that were given in Lepore to answer the question of whether the conduct complained of was "so connected with authorised acts that it may be regarded as a mode - although an improper mode - of doing them" . 114On my findings so far Mr McGee was the caretaker. His assaults and acts of indecency were committed while he was at work. Sometimes they occurred in the midst of particular tasks that he was undertaking. For example, he grabbed the plaintiff's breast while attending to some plumbing work. Thus far the argument tends to favour the plaintiff. However, ultimately I do not think that there is vicarious liability. It formed no part of Mr McGee's activities to conduct himself in the unseemly manner that he did. There may have been a temporal connection but the activities are entirely separate. 115Vicarious liability often arises in security guard cases where a "bouncer" uses excessive force in evicting an unruly patron. His mode of activity is an extension of a work action. In the present case assaulting or abusing the plaintiff is entirely disconnected to his employment. An analogy is that a person who steals from a house, while for example cleaning it, could not be seen to be acting in the course of their employment even though the activity took place during the employment. Mr McGee was not "doing an authorised act in an unauthorised way" (Gaudron J in Lepore at paragraph 108). Rather, he was carrying out an unauthorised activity totally divorced, even if at the same time, as doing separate authorised acts. 116I therefore find that the plaintiff fails in her allegation of vicarious liability. 117Before leaving vicarious liability it is necessary for me to deal with the plaintiff's assertion that the defendant was estopped from denying such liability. 118The submission was based on the judgment of Gaudron J in Lepore at paragraph 131. Her Honour stated the relevant test as follows: "131. Ordinarily, a person will not be estopped from denying that a person was acting as his or her servant, agent or representative unless there is a close connection between what was done and what that person was engaged to do. That was the focus of the attention of the House of Lords in Lister. However, that is not, of itself, the test of estoppel. Ultimately, the test is whether the person in question has acted in such a way that a person in the position of the person seeking the benefit of the estoppel would reasonably assume the existence of a particular state of affairs. In the case of vicarious liability, the relevant state of affairs is simply that the person whose acts or omissions are in question was acting as the servant agent or representative of the person against whom liability is asserted." 119Further support for the estoppel was taken from the judgment of Beazley JA in Naidu from paragraph 263. 120I do not think an estoppel arises. In my view, a person in the position of the plaintiff would not assume that Mr McGee was acting "as the servant agent or representative of the person against whom liability is asserted" . The plaintiff would certainly have assumed that Mr McGee's caretaker activities were on behalf of the defendant. I think that is a different question to any assumption on her part that his improper activities were in the course of his duties. To the contrary, in my view, a person in the plaintiff's position would assume that he was acting entirely outside the scope of his duties. 121In summary I find the defendant liable to the plaintiff for breach of the duty of care owed by the defendant as occupier of the Park. This is a finding of negligence and therefore falls within the scope of the CLA. Damages must be assessed accordingly. I do not find the defendant liable to the plaintiff on any other basis.

Medical evidence 122The plaintiff's medical material is in Exhibit A. The defendant did not tender any medical reports. 123The psychologist who has treated the plaintiff extensively since 2000 is Ms Bernadette Keegan. She gave oral evidence. In some respects her evidence was unsatisfactory because it emerged that her reports were primarily based on memory rather than the taking of notes. Thus her report written in March 2011, recalling matters going back to 2007, relied on memory rather than any contemporary recording of a history. I appreciate that a psychologist providing counselling to a patient would be more concerned with the interaction with the patient than with taking a note. However, Ms Keegan's process does raise an issue about the reliability of the histories she has recorded. 124Another point of concern in Ms Keegan's documents is the absence of detail about the assaults by Mr Varga. No mention is made of these assaults in Ms Keegan's report of 29 March 2011. In this report she attributes the plaintiff's current condition to an exacerbation caused by the harassment by Mr McGee. I suggested to her that even if this harassment was a continuing factor that she could not exclude the effects of Mr Varga's assaults. 125Ms Keegan said that she did exclude the assaults as a factor in the plaintiff's present condition because the plaintiff wished Mr Varga to continue to be her partner and carer and she was endeavouring to work matters out with him. I accept that this may be the case but I still have difficulty in excluding Mr Varga's assaults as a factor in the plaintiff's current condition. This is particularly so because of the emphasis through the evidence that the plaintiff was profoundly affected by breaches of trust. Mr Varga's assaults, one would expect, would have been against a background of the plaintiff trusting him as her partner and carer. 126Ms Keegan's records of the dates on which she saw the plaintiff have some difficulties but not to the extent that I doubt her evidence of the periods when she saw the plaintiff and the frequency of the consultations. 127Ms Keegan initially said that the last consultation with the plaintiff before 2008 was on 13 October 2006. This would have been inconsistent with the plaintiff's evidence that she was still under treatment when she went to the caravan park. Under cross-examination Ms Keegan referred to her practice's notes and was then able to say that there had been further consultations, in particular on 5, 12 and 26 March 2007. These were with another member of the practice, a Ms Sullivan. 128Ms Keegan said the plaintiff was doing "very well" when she saw her in October 2006. She said the plaintiff had goals and plans for the future. These were positive signs. The notes (Exhibit H) generally corroborate Ms Keegan's evidence. There is however a letter to Dr Thiow, the referring general practitioner, which suggests that further treatment was required (part of Exhibit A). It is also notable that the plaintiff chose to return to Ms Keegan after an absence of more than 18 months. 129I think Ms Keegan's ultimate evidence that the plaintiff was doing well but was nevertheless likely to require more treatment is probably accurate. It is also confirmed by the plaintiff returning for treatment in March 2007. 130Ms Keegan said that in 2006 the plaintiff hoped to start a certificate in welfare at a TAFE. This was a two year course. Ms Keegan could not envisage the plaintiff doing such a course at the present, nor did she think the plaintiff could hold down paid employment. Despite this her prescription for future counselling was for a period of only 12 months. 131Dr Klug gave evidence. He said that he had been shown Exhibits 2 and 3 before entering the witness box. Their contents did not change his opinion. I take little from this answer because Dr Klug saw the plaintiff before the events in the Exhibits took place. His opinion was based on his consultation. Consequently events that came after it could not affect the opinion. 132Under cross-examination Dr Klug said that Mr Varga's assaults would have exacerbated the plaintiff's PTSD. This is different to the evidence of Ms Keegan. As a matter of simple logic Dr Klug's answer seems more correct. 133A point of some contention between the parties arose from this passage in Dr Klug's evidence: "HIS HONOUR Q. He's putting to you that by the time you saw her she had gone back to her condition as it existed before the McGee episodes. So she was in partial remission, following all the other things that happened to her, then came along Mr McGee and exacerbated everything? A. Yes. Q. And then it's been put to you that she's then, by the time she's seeing you, she's returned to the condition she was before Mr McGee. Is that a fair summary Mr Bell? BELL: Yes your Honour. WITNESS A. Your Honour, I think that I regarded her as prior to the events in 05, as her PTSD being in substantial remission, and then-- HIS HONOUR Q. So prior to 05, we then have the rape in 05? A. Yes. Q. Which presumably-- A. I think brought the condition into full form again. Q. Right, and then prior to - how was it prior to 07 when she's come across this Mr McGee? A. As far as I could determine, in partial remission. Q. So I think the question that's being put to you now is, is the extent of partial remission that she was in before Mr McGee, the same as the partial remission that you identified when you saw her? A. Yes, that's approximately right your Honour. Q. So she's gone back to how she was before Mr McGee carried on with his activities? A. Yes." (Transcript Day 3, page 37.18) 134The defendant's contention was that Dr Klug's evidence produced a closed period claim because he said that by 5 August 2009 she had returned to the same mental state as existed just before October 2007. The plaintiff submitted that the above passage of Dr Klug's evidence only applied to the exacerbation of the plaintiff's PTSD. It did not include a diagnosis of her major depression, which continued to the present and was a product of Mr McGee's actions. 135The plaintiff's argument is derived, firstly, from Dr Klug's report in Exhibit A. The plaintiff submitted, correctly I think, that the doctor has a dual diagnosis of an exacerbation of PTSD together with the onset, in November 2008, of a major depressive episode. Secondly, submitted the plaintiff, the questions asked of the doctor in the above passage only related to the PTSD. I tend to agree with this analysis of the quoted passage. However, I think the doctor's report places the matter beyond doubt and favours the defendant's argument. The doctor stated at page 8: "I regard her major depressive disorder as currently being in substantial remission and her PTSD as currently in partial remission." The doctor repeats this statement in his summary. I am therefore of the view that the plaintiff's damages are to be substantially viewed as a closed period claim with the qualification that she no doubt has an even greater vulnerability as a result of Mr McGee's activities to further psychiatric stress than she already had before October 2007. 136The defendant submitted that the only injury that might have arisen from the defendant's negligence was the exacerbation of the plaintiff's PTSD. It submitted that the major depressive episode must be excluded because it arose from the events in the Wilberforce Hotel on November 2007. The defendant was not liable for these events. 137The defendant's position seems to have been derived from the report of Dr Klug, in particular on page 7 where in his " Opinion " he said "... which amounted to the diagnosis of a major depressive episode in November 2008 when she said she had a major breakdown" . This passage is to be contrasted with the doctor's " Summary " where he said: "She suffered a superimposed major depressive episode by November 2008" . 138The distinction between the above two passages in Dr Klug's report is really a question of semantics. More important, I think, is the doctor's statement at page 2 of his report that "since the time of the incidents involving Mr McGee her symptoms have included the following" . The doctor then included a long list of symptoms. I think the fairest interpretation of Dr Klug's report is that while there may have been a major depressive episode in November 2008, that episode was caused by the accumulation of symptoms arising from Mr McGee's activities, and in turn from the defendant's negligence. As I have already said it is also necessary to take into account in this equation the assault by Mr Varga. Dr Klug agreed in this passage of evidence: "Q. Now I'm not suggesting Dr Klug anyone told you about these events or the 2009 event before you wrote your report, however, if you assume that Ms Shaw's carer placed his hands around her neck and squeezed, that that would affect her or would exacerbate her post traumatic stress disorder? A. I would imagine so yes, I think that's likely. Q. And in fact if he also assaulted her in November 2010, that would also exacerbate her post traumatic stress disorder, do you agree with that? A. Yes, yes I agree with that." (Transcript Day 3, page 41.1) 139Dr Klug was asked questions about the plaintiff being of "normal fortitude" . He said she was not of normal fortitude but made the statement from a medical point of view. He was concerned to point out that he did not offer a legal opinion (Transcript Day 3, page 41.46). 140The doctor's evidence about normal fortitude does not assist with the issue arising under Section 32 of the CLA. This section is concerned with whether the defendant "ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken." The issue is therefore not whether the plaintiff was of normal fortitude but rather whether a person of normal fortitude might suffer the injury. 141The injury is the exacerbation of the plaintiff's PTSD and a possible major depressive episode. The defendant did not submit that either one of these two conditions was not a recognised psychiatric illness. The real issue was whether such an injury should have been foreseen by the defendant as liable to be suffered by a person of normal fortitude. 142Dr Klug gave this evidence under cross-examination: "Q. I take it that was because she would be, what one would consider a vulnerable person at that time? A. No, I think that most women, if somebody they don't have a relationship with, wanted to look at their breasts, would think that that might be a prelude to a sexual episode. I think it's a reasonable assumption. Q. Well do you talk about a violent or sexual episode? A. Well, certainly if the woman wasn't indicating any interest in such a relationship, then it could be - it's likely to be seen as an aggressive approach. Q. So what I would suggest to you is that Ms - she reports another time is that Mr McGee touched her on, or squeezed her left breast? A. Yes. Q. Would you take both of those episodes to be an indication, well certainly was an indication, you consider it to Ms Shaw, is that Mr McGee wanted to have non consensual sex with her, is that what you understand her reaction would be? A. Well, yes I assume so that he wanted to have sex with her, and that a prelude to that going on, whether it was consensual or non - I assume it was non consensual, because she clearly didn't want to have sex with McGee. Q. I'm not suggesting that, I'm suggesting from your understanding of her view, or your opinion on what her view would be at that time, that he wanted to have non consensual sex with her? A. Yes, that would have been her view I believe, at the time. Q. I suggest to you that would have been coloured by the events that happened to her earlier in her life? A. No, that her perception that it was his desire to have non consensual sex with her, I think most women in that situation, whether they'd been traumatised before or not, would have had that perception, but I think her response to it has been coloured by her previous experiences. Q. And her response, in fact it exacerbated an existing post traumatic stress disorder? A. That's correct, that's my view." (Transcript Day 3, page 45.5) 143Despite this evidence being elicited by a series of questions in cross-examination the defendant submitted that I should ignore the doctor's opinion. It was submitted that the doctor's views on the likely reaction of women was speculative and outside his specialty. I disagree. The psychiatric reaction of women to events is well within the speciality of a psychiatrist who no doubt from time to time is required to deal with patients who have experienced sexual assaults. 144The effect of Dr Klug's evidence is important. I take from it that the nature of Mr McGee's activities, which I extend beyond the assaults to the harassment as well, was such that their effect on a woman of normal fortitude would give rise to the possibility that the woman might suffer a recognised psychiatric illness. Sexual assault and harassment is a particularly harmful and hurtful activity. I can see little argument to suggest that prolonged activity of this nature could not, in the circumstances of this case, give rise to PTSD or a depressive episode.

Damages 145In relation to non-economic loss I have already said that the first incident, on 11 October 2007, cannot be taken into account in the damages payable by the defendant. Despite this the incident can be factored into the plaintiff's background and her vulnerability to further sexual assault and harassment. The defendant must take the plaintiff as it finds her and in this case it found a woman with a history that made her highly susceptible to exacerbation of her previous problems and the onset of new psychiatric difficulties. 146As I have said, the claim is effectively for a closed period, from November 2007 to August 2009. The latter date is when Dr Klug had his consultation with the plaintiff and concluded that her psychiatric symptoms were in partial or substantial remission. 147In the defendant's favour I also must take account of the effect of the assaults by Mr Varga and the incident in November 2008 with Mr McGee for which the blame cannot be attributed to the defendant. 148The effect on the plaintiff of Mr McGee's activities was obviously severe. I accept the plaintiff's evidence about the way she felt and her feelings of embarrassment, of being dirty and wishing to hide. These are the natural reactions of a person who has suffered at the hands of a sexual predator. These reactions are all the worse when suffered by a person with the plaintiff's history. 149It is a difficult task to separate non-related events in order to arrive at a conclusion about the degree of injury suffered by the plaintiff that was caused by the defendant. 150I should add here, in relation to causation and the requirements of Section 5D of the CLA, that I am satisfied that but for the activities of Mr McGee, for which the defendant by its own negligence is liable, the plaintiff would not have suffered an exacerbation of her PTSD and a major depressive episode. 151I would also add, as a matter of commonsense, the activities of Mr McGee, left uninterrupted by the defendant, would cause mental anguish to a person like the plaintiff. This is a case where the commonsense approach is, I think, available. Basten JA, in Lym International Pty Ltd v Marcolongo [2011] NSWCA 303, in paragraph 4, said this: "Appeals to "commonsense" in the context of findings as to causation are usually little more than an exhortation to avoid over-sophisticated analysis. That exhortation should generally be accepted. The point at which careful analysis becomes necessary, and reliance on "common sense" unhelpful, is where there is a real risk that "common sense" conceals fallacious assumptions, illogical reasoning or plain careless thinking." 152Returning to the assessment of non-economic loss, and doing the best I can to restrict the assessment to the injury that was caused by the defendant's negligence, I find that the plaintiff's entitlement amounts to 20% of a most extreme case. Pursuant to Section 16 of the CLA this assessment produces a figure of $18,200. 153The indexation of the maximum amount allowed for non-economic loss occurred after the completion of the hearing but before delivery of this judgment. I requested submissions from the parties as to whether the monetary equivalent of the percentage I have found should be assessed as at the date of hearing or the date of judgment. 154The defendant accepted the plaintiff's submission that the date of judgment is the correct choice. This is clear from the decision of Mason CJ in Johnson v Perez (1988) 166 CLR 351 at 356. In addition, the author of Assessment of Damages for Personal Injury and Death (4 th ed) states at paragraph 1.4.6: "The conclusion is that in all cases of personal injury and death, damages should be assessed as at the date of verdict and not at any earlier time." 155I appreciate that 20% may be regarded as somewhat high in the light of my finding that there is effectively a closed period claim. However, one needs to take into account the severity of psychiatric injury being imposed on an already distressed person and that a good deal of the pain and suffering was caused on an ongoing basis. The defendant's failure to rein in Mr McGee was not a once only event. It continued over a number of months during which the effect on the plaintiff would no doubt have intensified. In addition, I have also taken into account that although in remission, the plaintiff's symptoms, by the very definition of the word remission, may re-emerge either in their own right or in the creation of yet further vulnerability to future assaults on her mental state. 156The plaintiff has claimed $50,000 by way of a buffer for economic loss. The buffer, as I have understood the plaintiff's submission, is to take into account both the past and future loss. The defendant's response is that there should be no award for economic loss. 157The plaintiff's claim is based on her evidence that she had hoped to become a counsellor. This was corroborated by Ms Keegan who also said that she did not think the plaintiff was now capable of pursuing the course. I do, however, note that the plaintiff cares for a grandchild on a regular basis and she is not entirely incapable of travel or being able to attend a course. In addition, my finding that the claim is essentially for a closed period limits the amount of economic loss to the past. 158The plaintiff said that she had intended to commence the course in 2008 but she was not able to do so because of Mr McGee's activities. The plaintiff said that she still wished to do the course and hoped to try again in 2012 (Transcript Day 1, page 43.39). It appears the course would last for some two or three years so that even if the plaintiff had commenced the course in 2007 she would only just have been able to start employment as a counsellor. 159I think the only way I can approach economic loss is to treat the loss as a lost opportunity to have begun the course in 2007 and perhaps have found employment in 2010 or even this year. In effect, her entry into the workforce has been delayed. I was not informed of the wages of a counsellor, nor was there any evidence of the likelihood of such jobs being available. 160Taking all these matters into account, including the other limitations on the plaintiff's ability to work (for example caused by Mr Varga's assaults) I think I can allow the plaintiff no more than $10,000 on the basis that the defendant's negligence stopped her from pursuing the course for about two years and that she may have been able to find some counselling work had she commenced the course in 2007. 161Past out of pocket expenses were agreed at $2,813.15. The plaintiff has claimed $5,000 for future treatment. The defendant says there should be no allowance. 162In my view there should be some allowance for future treatment because of the increased vulnerability the plaintiff has to further exacerbations of her PTSD and her depression. The possibility of her symptoms coming out of remission must also be taken into account so that future psychological counselling is a real possibility. I think $2,500 is an appropriate figure. 163The plaintiff did not press her claim for past and future care, aggravated and exemplary damages if I found that the assessment of damages was governed by the CLA. Accordingly a summary of the damages I have allowed is as follows: Non-economic loss $18,200.00 Economic loss $10,000.00 Out of pocket expenses $2,813.15 Future treatment $2,500.00 Total $33,513.15

164I make the following orders: (a)Verdict and judgment for the plaintiff against the second defendant in the sum of $33,513.15. (b)The second defendant is to pay the plaintiff's costs of the proceedings. This cost order does not affect any cost orders already made.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 October 2011

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