Watt v Redman

[2024] NSWSC 638

Supreme Court of NSW|2024-05-10|Before: Garling J

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Source facts

Court

Supreme Court of NSW

Decision date

2024-05-10

Before

Garling J

Source

Original judgment source is linked above.

Judgment (11 paragraphs)

[1]

JUDGMENT

Ms Lisa Maria Watts (the plaintiff) brings proceedings seeking damages for historical child sexual assault from the defendant. The defendant, Gregory Roy Redman, is the plaintiff's brother.
The proceedings were initially commenced by a Statement of Claim filed on 3 May 2023. Proceedings are brought against the defendant on the basis that while the plaintiff was a child, he too was living in the family home and, for a period of approximately ten years from end of 1974 or early 1975 to 1985, he sexually abused the plaintiff.

[2]

Judgment in the Absence of a Defence

The evidence before the Court satisfied me that the plaintiff had properly served all relevant documents on the defendant in accordance with either Court orders or the requirements of the Uniform Civil Procedure Rules 2005 ("the UCPR"). On four occasions, the defendant represented himself and appeared in the proceedings via Audio-Visual Link from custody, however the defendant did not file any Defence.
At a directions hearing on 24 November 2023, the defendant informed the Court that he did not wish to be involved in the Court's hearing of, and disposition of, the plaintiff's claim. He said: "She can have my share of mum's house."
On 15 March 2024, whilst present by AVL, the defendant confirmed what he had previously told the Court about his attitude to the litigation, and he confirmed that he did not wish to attend the hearing or to contest the plaintiff's claim. Accordingly, there was no appearance for the defendant when the matter was heard on 10 May 2024.

[3]

Facts of the Sexual Abuse

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.
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.
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.
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."
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
In 2003, the plaintiff disclosed the abuse to her family doctor.
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".
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.
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.
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.
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.
It is convenient now to turn to the assessment of damages.

[4]

Dr Patricia Jungfer

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).
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.
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)
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).
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.
I accept the expert opinion and prognosis expressed by Dr Jungfer.
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.
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.
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.
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."
I accept this opinion.

[5]

Work History

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.
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.
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".
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.
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.
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.
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.' "
In the circumstances here, it is appropriate to apply a global approach.
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.
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.
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.
The plaintiff submits that an award of $75,000 for past loss would be appropriate.
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.
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.