Watt v Redman

Facts of the Sexual Abuse

1. The facts of which I am well satisfied, are drawn from the Agreed Facts on Sentence which was signed by the defendant and his lawyer. The statement was used for the purpose of sentencing the defendant in the District Court for the criminal charges which relate to the abuse against his four sisters, including the plaintiff. As well, the plaintiff gave evidence, particularly about the consequences to her of the sexual abuse occurring over a lengthy period of time, which I accept.
2. The plaintiff was born in mid-1969. The plaintiff grew up in a family of eight children, including two foster children, and her parents both worked throughout her childhood. She was aged 5 years old when the abuse began. The defendant was born in May 1959 and was aged 15 when he began to abuse the plaintiff.
3. The abuse commenced at the end of 1974 or the start of 1975 when the family were residing at Elm Street, Gateshead West. The first incident occurred when the defendant came into the plaintiff's room, took her by the hand, and led her into the bathroom and closed the door. The defendant pulled down his shorts and underwear, sat on the toilet lid, grabbed the plaintiff's hand and said "You gotta touch this", placing the plaintiff's hand on his erect penis. At one stage, their mother knocked on the door and asked who was in the bathroom. The defendant placed his hand over the plaintiff's mouth and told his mother it was only him inside. After, the defendant told the plaintiff not to say anything about what occurred.
4. The second incident took place sometime in 1975 when the plaintiff was 5 or 6 years old and the defendant was 15 or 16 years old. The plaintiff and the defendant were alone in the bedroom of two of their sisters. The defendant lifted the plaintiff onto the bed, removed her underpants, and removed his own pants. The defendant masturbated himself, rubbed his penis against the plaintiff's vagina, and ejaculated on the plaintiff's stomach. The defendant said to the plaintiff, "Don't tell anyone or I'll kill you."
5. After this incident, the defendant frequently abused the plaintiff in similar ways, often by taking the plaintiff into a bedroom, removing her underwear, and masturbating until he ejaculated on her stomach. Sometimes the defendant attempted to insert his penis into the plaintiff's vagina and the plaintiff would cry or scream until he stopped. The plaintiff did not tell anybody about the abuse that was being perpetrated against her on a regular basis. She was scared of the defendant and did not understand what was happening. The plaintiff's parents worked during the day which was mostly when the abuse occurred.
6. In late 1978 or early 1979, the family started building a house at Glen Martin Road, Clarence Town. The plaintiff was aged 9 years old and the defendant was 19. The plaintiff's sister Charmayne threw a rock at the plaintiff's head and the plaintiff had to stay home from school for a week. During this week, the defendant abused the plaintiff in her bedroom, in his bedroom, or in the backyard. The defendant would remove the plaintiff's underwear, masturbate and rub his penis against her vagina until he ejaculated on the plaintiff.
7. The plaintiff recalls similar abuse occurring one Saturday morning between January 1979 and July 1980 when the defendant took the plaintiff into his bedroom, locked the door, and masturbated in the same way as the incidents above. On this occasion, the defendant also rubbed his hand against the plaintiff's vagina.
8. The abuse was occurring frequently throughout 1979 and 1980 when the family lived in the Clarence Town house and their parents were both still working. There was an occasion around this time when the plaintiff's father had bought a bulldozer and started an earthmoving business. The plaintiff's mother was taking photos of the children on the bulldozer and the plaintiff's mother told the plaintiff to go to the operator's seat where the defendant was seated. The defendant made the plaintiff stand in front of him, and he put his hand into the back of her shorts and rubbed her vagina. This occurred when the plaintiff was aged between 9 and 11 years old, and the defendant was aged between 19 and 21 years old.
9. Towards the end of 1980, when the plaintiff was 11 years old and the defendant was 21 years old, the defendant came into her bedroom and got into the plaintiff's bed, which was a bottom bunk bed. The defendant rubbed the plaintiff's vagina. Their sister Charmayne, who was on the top bunk, got down from the top bunk and screamed at the defendant to leave their room. Charmayne told their mother, and their mother told the plaintiff and defendant that she was aware that they were in bed together. Later that day, the defendant again entered the plaintiff's room and abused her by removing her underpants, masturbating, rubbing the plaintiff's vagina, touching her breast, rubbing his penis on her vagina, and ejaculating on the plaintiff's stomach.
10. In 1980 or early 1981, the defendant moved out of the Clarence Town house and moved in with his girlfriend. The defendant visited the Clarence Town house approximately once a week and continued to abuse the plaintiff. Later in 1981, the defendant and his girlfriend slept for approximately 6 months in a caravan on the Clarence Town property. During this time, the defendant abused the plaintiff in the caravan approximately three times and he abused her in a similar manner to that described above. He also abused the plaintiff inside the house. During this period, the abuse occurred on a weekly basis. The plaintiff was 11 or 12 years of age, and the defendant was 21 or 22 years of age. In early 1982, the defendant and his girlfriend moved out of the Clarence Town property.
11. In 1982, one week before the plaintiff's 13th birthday, when the defendant was 23 years old, the defendant sexually abused the plaintiff by inserting his penis into her vagina. This was the first incident of penile/vaginal penetration. The defendant also masturbated until he ejaculated on the plaintiff.
12. On the plaintiff's 13th birthday on 24 July 1982, the defendant took the plaintiff into his old bedroom, masturbated, and then inserted his penis into her vagina, and then ejaculated on the plaintiff's stomach. Later, the defendant gave the plaintiff coins from his moneybox.
13. The abuse continued whenever the defendant visited the family home. It mostly consisted of the defendant masturbating over the plaintiff as earlier described above. The defendant continued to give the plaintiff loose change. Another instance of attempted penetration occurred sometime between 1979 and 1985 in an old blue pie van which was stored on the property. The defendant had followed the plaintiff into the backyard and told her to come to the pie van, and he then abused her.
14. When the plaintiff was aged between 14 to 16 years, the defendant did not abuse her as regularly because he did not visit the house as often. The plaintiff believes the defendant had sexual intercourse with her on about 10 occasions in total.
15. The abuse ceased in 1985 when the plaintiff was 16 years old. The defendant visited the family's Clarence Town home and told the plaintiff to go into his old bedroom, which was now the office. The plaintiff said: "No. You're never going to touch me again and if you do I'm gonna dob". The defendant did not abuse the plaintiff again.
16. In about 1986, when the plaintiff was 17 years old, she disclosed the abuse to her sister Deborah. The plaintiff also disclosed the abuse to the defendant's partner when the defendant and his partner separated.
17. Towards the end of 1995, the plaintiff disclosed the abuse to her partner. Around this time, the defendant disappeared and was reported as a missing person. The plaintiff was contacted by a police officer to whom she disclosed the abuse over the phone. She was encouraged to formally report the abuse. The plaintiff received this phone call while at work, and after she became visibly upset, disclosed the abuse to her boss.
18. In 2003, the plaintiff disclosed the abuse to her family doctor.
19. During 2019, the plaintiff began discussions with her husband about reporting the abuse. In April 2019, the plaintiff was recalling memories of the abuse and became concerned about the role her mother played in the abuse, as the plaintiff came to believe her mother knew about the abuse. In June 2019, the plaintiff received a phone call from the defendant, who informed her that their mother was sick in hospital. The plaintiff said she would not visit because she had realised that her mother had known about the abuse. The defendant said "I'm sorry".
20. On 30 July 2019, the plaintiff made a formal report to police and completed a statement on 11 September 2019. Between 20 October 2019 and 30 October 2019, telephone conversations between the plaintiff and the defendant were lawfully recorded pursuant to a surveillance device warrant. During these conversations, the defendant made admissions about sexually abusing the plaintiff.
21. The defendant was arrested on 10 December 2019. In a recorded interview with police, he made some admissions about the abuse, denied some instances of abuse, and could not recall whether some other instances occurred. The defendant was subsequently charged.
22. The defendant pleaded guilty to several charges involving abuse against the plaintiff. On 12 March 2021, the District Court in Newcastle sentenced him to a period of imprisonment for 7½ years with non-parole period of 4½ years.
23. In light of the defendant's pleas of guilty, the compelling evidence of the plaintiff which I have entirely accepted, and in the absence of any defence or opposition from the defendant, I am satisfied that the plaintiff is entitled to judgment against the defendant.
24. It is convenient now to turn to the assessment of damages.

Dr Patricia Jungfer

1. The plaintiff consulted Dr Patricia Jungfer, a psychiatrist, who prepared a report dated 28 February 2022 for these proceedings which included a psychiatric assessment. The plaintiff reported to Dr Jungfer that she had experienced the following psychological symptoms as a consequence of the sexual abuse: 1. depression and trauma; 2. issues with trust; 3. nightmares; 4. nocturnal anxiety; 5. anxiety; 6. fear; 7. variable appetite; 8. insomnia; 9. flashbacks; 10. poor self-esteem; 11. fear of crowds; 12. fear of the dark; and 13. disassociation (including during sexual activity).
2. The plaintiff also gave oral evidence to the Court about her considerable reliance on consuming alcohol to the point of addiction as a means of dealing with her memories of the abuse.
3. Dr Jungfer expressed this opinion: "On the basis of the history reported by Ms Watt, since she has been a child, she has experienced anxiety, trauma re-experiencing symptoms and mood related symptoms. Ms Watt's clinical presentation would be consistent with a post-traumatic stress disorder. Ms Watt on the basis of her history meets the DSM-V criteria of a post-traumatic stress disorder. She has experienced repeated episodes of sexual violence with the violence being associated with fear and threats of harm. Ms Watt describes that she has the intrusion symptoms of the traumatic events including involuntary distressing memories, flashbacks, and dissociative reactions. In response to these intrusive recollective experiences are feelings of increased arousal and avoidance behaviour." (Emphasis added)
4. Dr Jungfer stated the plaintiff's post-traumatic stress disorder "has solely arisen as a consequence of the abuse that occurred from her brother" (the defendant).
5. Dr Jungfer's prognosis for the plaintiff achieving a complete resolution of her symptoms was guarded, given the length of time during which she was abused and the length of time for which she has been symptomatic.
6. I accept the expert opinion and prognosis expressed by Dr Jungfer.
7. The plaintiff currently takes the antidepressant medication Sertraline to reduce the impact of her anxiety and depression, however she states the symptoms remain and the medication is only "keeping a lid" on her symptoms. The plaintiff receives regular counselling.
8. By way of treatment for the plaintiff's post-traumatic stress disorder, Dr Jungfer recommended trauma informed therapy utilising cognitive behaviour therapy, systematic desensitisation, and trauma processing therapy such as eye movement desensitisation reprocessing. Dr Jungfer recommended an allowance of 30 sessions be made at a cost of $250 to $300 per consultation, a total of $9,000.
9. Dr Jungfer also recommended referral to a consultant psychiatrist for consideration of pharmacotherapy at a cost of $395 for a long session, with the initial consultation being $465. The pharmacotherapy would cost between $60 and $100 per month. As a global figure for the future, an allowance of $15,000 would be sufficient to give effect to this recommendation.
10. Dr Jungfer also noted the impact on the plaintiff's work capacity that has resulted from the abuse: "[The plaintiff's] ability to participate in education would have been adversely affected by the abuse from her brother because the symptoms impact on, for example, her concentration and capacity to trust people who are in positions of authority. Subsequently, her work history has been adversely affected because of her post-traumatic stress disorder."
11. I accept this opinion.

Work History

1. I am satisfied that the plaintiff's work capacity was impacted by the abuse. The plaintiff did not want to work while she raised her children due to her fears that something would happen to her children. The plaintiff was able to work at a fruit shop at the end of the street in which she lived so that she could be close to her children. The plaintiff said that her fears of something happening to her children caused her to be unreliable for work, to not undertake as much work as she could have, and that she lost the opportunity to work fulltime. This is an entirely understandable consequence of her psychiatric condition brought about by the sexual abuse.
2. The plaintiff last worked in or around 2012, when she had been working at a café for two days per week, however she ceased working there as she did not like being away from her home and having to deal with members of the public.
3. The plaintiff's submissions describe her economic loss claim as a "loss of opportunity claim", in that "there was a chance she would have worked more extensively, but also a chance that she would not have".
4. I am satisfied that the abuse perpetrated on the plaintiff by the defendant led to significant consequences for the plaintiff's psychiatric and psychological wellbeing and materially contributed to her inability to work in a full-time career.
5. The plaintiff's written submissions accepted that the evidence regarding the plaintiff's economic loss was necessarily limited. That limited evidence further complicates an already difficult task of assessing the value of the plaintiff's lost opportunity to engage in employment, in circumstances where the plaintiff was subject to sexual abuse as a child, before any work capacity had been established.
6. Accordingly, it is not possible to come to a precise, mathematical calculation which establishes what the plaintiff would have earned in a particular job. The plaintiff's vocational choices did not have the opportunity to mature and cannot be considered to have formed as a lifelong vocation or career. Further, when one is assessing a very lengthy period in the past during which a person's life experiences have varied or changed, precision is not possible.
7. In Searle v The Commonwealth of Australia [2019] NSWCA 127, Bell P (as the Chief Justice then was) identified the correct approach to the assessment of damages for a lost chance of earning income as a result of a defendant's tortious conduct. His Honour said: "202 There are peculiar difficulties associated with the assessment of damages for loss of opportunity and the proof and evaluation of future possibilities and past hypothetical fact situations, as contrasted with proof of historical facts: Sellars at 355. These difficulties are in part accommodated by the approach to the assessment of damages that only requires there to be established on the balance of probabilities that there was loss of an opportunity of some value but does not require it to be shown that the likelihood of that opportunity being realised was greater than 50%: Sellars at 355. Sellars drew on Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 (Malec) where Deane, Gaudron and McHugh JJ said (at 643) that 'the future may be predicted and the hypothetical may be conjectured'. … 206 It is not essential for a trial judge assessing damages for loss of a chance to nominate a particular percentage of probability to be attributed to the prospect of the chance being realised, and to insist on this would be prone to artificiality. A global approach not requiring the specification of particular percentages or degrees of probability or possibility was endorsed as acceptable by this Court in Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473; [1999] NSWCA 323 at [147]. In Malec at 640, Brennan and Dawson JJ said: '… we think it undesirable for damages to be assessed on the footing of an evaluation expressed as a percentage. Damages need not be assessed by first determining an award on the footing that the hypothetical situation would have occurred and then discounting the award by a selected percentage. Damages founded on a hypothetical evaluation defy precise calculations.' "
8. In the circumstances here, it is appropriate to apply a global approach.
9. Ordinarily, interest is payable on the sum awarded to represent past lost earning capacity. Here, as the damages are assessed on a broad-brush approach, it is impossible to make a sensible calculation for interest - for example, when should interest start to accrue, on what sum and over what period and what interest rate should apply. These are not capable of a direct answer. However, the preferable approach is to include interest in the assessment of the global sum as one of the many integers which contribute to that sum.
10. It is appropriate to take the same approach into account, since 1 July 1992, to any sum to which the plaintiff would have been entitled by way of compulsory superannuation contributions.
11. The Court is assessing an appropriate sum for such a lost opportunity from when the plaintiff was 18 years old until now - a period of about 36 years. The plaintiff is currently 54 years old and therefore she could expect to have had a further period of 10 years or so until she reaches the usual age of retirement.
12. The plaintiff submits that an award of $75,000 for past loss would be appropriate.
13. In all of the circumstances, I accept that it is appropriate to award economic loss by way of a global sum representing past loss of a chance of a full earning capacity, in the amount of $75,000.
14. Following the same approach for the future is somewhat easier. The plaintiff could have worked to age 65, a not uncommon retirement age. Of course, she may not have chosen to work for that long. Many people do not. Or else she may have chosen to work for less than a full week. However, the effects of the sexual abuse perpetrated by the defendant, including the absence of an established career or vocation by this time, has meant that the Court can only assess her damages on the basis of her lost opportunity to earn an income over the next 10 years. I assess the value of that lost opportunity as $50,000, which is the sum the plaintiff submits is appropriate.

General Damages

1. The abuse caused immense emotional distress to the plaintiff. The impacts of the abuse on the plaintiff's daily life are numerous and persistent. The abuse took place in the plaintiff's family home where she was entitled to feel safe. The abuse began when the plaintiff was young and vulnerable and was ongoing throughout most of her childhood. It is appropriate to award general damages to cover the non-economic consequences of the defendant's conduct.
2. I note that this assessment of general damages is one to be conducted according to the common law and is not restricted by any of the statutory schemes of compensation which presently exist.
3. I note, however, that if damages were to be assessed for non-economic loss in accordance with s 16 of the Civil Liability Act 2005, the current maximum amount which a Court could award is $722,000. The maximum award for non‑economic loss and damages arising from motor vehicle accidents at present is $620,000.
4. In my view, a proper award of general damages to the plaintiff for the conduct of the defendant is $420,000. The plaintiff would be entitled to interest on this amount. The conventional calculation of such interest is 2% on the proportion of that sum accrued to date. In my view, that proportion should be 75% because the time since the events occurred means that the plaintiff has suffered the bulk of the consequences of the defendant's sexual assaults by now. Without being precise, this would result in an amount of about 60% (accumulating a simple interest amount) on three quarters of the amount for general damage. In broad terms, this would be an amount of $190,000, which I think is the appropriate sum.

Aggravated Damages

1. The plaintiff also claims aggravated damages because of the egregiousness of the defendant's conduct. It occurred to the plaintiff when she was young and vulnerable, and in her home where she was entitled to feel safe. It lasted for nearly a decade. The defendant's aggravating conduct by way of his threatening of the plaintiff to prevent her disclosing the abuse and creating a fear of harm within the plaintiff's mind as a result of years of sexual abuse and coercion, contributed to the plaintiff not reporting the abuse until 2019.
2. The conduct involved the exercise of coercion without regard to the plaintiff's inability to consent because of her age, and had the hallmark of a male, older in age than the plaintiff, taking sexual pleasure whenever he wanted as if he had the right so to do. The conduct was callous, and it had a profound, life‑long effect on the plaintiff.
3. In my assessment, this is one of those unusual cases where there is a significant cross-over between the facts, matters and circumstances which could justify an award of exemplary damages and aggravated damages. In such cases, it is essential for a Court to take steps to ensure that the sums awarded for both aggravated damages and exemplary damages are moderated to ensure that compensation by way of aggravated damages are not double counted with exemplary damages. A defendant is not to suffer the consequences of his conduct twice.
4. Here, the sum which I have assessed for aggravated damages does not need to be moderated to avoid any such double amounts for damages.
5. In my view, the plaintiff is entitled to an award of damages in the sum of $50,000.

Exemplary Damages

1. The plaintiff has sought exemplary damages. I note the defendant was convicted for his offences against the plaintiff and a substantial sentence of imprisonment has been imposed, which he is presently serving for his sexual abuse of the plaintiff.
2. When questioned about how this impacted upon the Court in granting exemplary damages, Counsel for the plaintiff accepted the jurisprudential problem that would arise if exemplary damages were awarded in circumstances where punitive measures have already been imposed through the criminal justice system.
3. In Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1 at [38]-[40], Gleeson CJ, McHugh, Gummow and Hayne JJ said: "38 The factor which weighed most heavily with the primary judge in considering whether to award exemplary damages was that [the tortfeasor] had been sentenced to a substantial term of imprisonment for the actions which gave rise to the claim. 39 … 40 Where, as here, the criminal law has been brought to bear upon the wrongdoer and substantial punishment inflicted, we consider that exemplary damages may not be awarded. We say 'may not' because we consider that the infliction of substantial punishment for what is substantially the same conduct as the conduct which is the subject of the civil proceeding is a bar to the award; the decision is not one that is reached as a matter of discretion dependent upon the facts and circumstances in each particular case."
4. As the defendant has been imprisoned for a number of years (a substantial punishment), it is not open to this Court to make an award of exemplary damages.
5. This approach is consistent with that which I took in Mirosevich v Laughlan [2022] NSWSC 1103.

Summary

1. Accordingly, based on the assessments which I have described, I would assess the plaintiff's damages as a consequence of the defendant's conduct in the following sums: General Damages $420,000 Interest on past General Damages $190,000 Aggravated Damages $50,000 Past lost earning capacity (including interest) $75,000 Lost superannuation and long service leave $50,000 Cost of future psychological treatment $34,000 TOTAL $819,000

Orders

1. I make the following orders: 1. Judgment for the plaintiff against the defendant in the sum of $819,000. 2. Defendant to pay the plaintiff's costs of the proceedings. 3. Liberty to apply.

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