A v B [2021] NSWDC 491

Catchwords: TORTS – intentional torts – battery – personal injury – psychiatric injury – historic sexual assault alleged – damages sought for battery and psychiatric injury and consequential loss – whether the plaintiff consented to the activity in question – whether the account of the plaintiff should be accepted on the balance of probabilities District Court New South Wales Medium Neutral Citation: A v B [2021] NSWDC 491 Hearing dates: 10-14 May 2021; 15 June 2021 (written submissions); 9 July 2021 (written submissions); 20 August 2021 (oral submissions) Date of orders: 15 September 2021 Decision date: 15 September 2021 Jurisdiction: Civil Before: Dicker SC DCJ Decision: (1) Judgment for the defendant against the plaintiff. (2) The plaintiff is to pay the defendant's costs of the proceedings as agreed or assessed. (3) Liberty to the parties to seek a different costs order to that in ( 2) above within 14 days. Catchwords: TORTS – intentional torts – battery – personal injury – psychiatric injury – historic sexual assault alleged – damages sought for battery and psychiatric injury and consequential loss – whether the plaintiff consented to the activity in question – whether the account of the plaintiff should be accepted on the balance of probabilities Legislation Cited: Civil Liability Act 2002 (NSW) Evidence Act 1995 (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Croucher v Cachia [2016] NSWCA 132 Cubillo v Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1 Danckert v Tonkin [2015] NSWSC 1570 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Gautem v Health Care Complaints Commission [2021] NSWCA 85 Gersbach v Gersbach [2018] NSWSC 1685 Gorman v McKnight [2020] NSWCA 20 KS v GR [2020 ] NSWDC 73 Kumar v Legal Services Commissioner [2015] NSWCA 161 Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1 MBP ( SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 657 MC v Morris [2019] NSWSC 1326 Musa v Alzreaiawi [2021] NSWCA 12 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; [1992] HCA 66 Nguyen v Tran [2018] NSWCA 215 Perpetual Trustees Victoria Ltd v Cox [2014] NSWCA 328 Sangha v Baxter [2009] NSWCA 78 State of New South Wales v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496 Watson v Foxman (1995) 49 NSWLR 315 White v Johnston (2015) 87 NSWLR 779; [2015] NSWCA 18 Category: Principal judgment Parties: Mrs A (Plaintiff) Mr B (Defendant) Representation: Counsel: K Andrews (Plaintiff) J Sleight (Defendant) Solicitors: Wyatts Lawyers (Plaintiff) Arcuri Lawyers (Defendant) File Number(s): 2018/00258374 Publication restriction: All information tending to reveal the identity of the plaintiff and the defendant in the proceedings is not to be published pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) on the basis that the public interest for the order significantly outweighs the public interest in open justice. Judgment In these proceedings, the plaintiff, Mrs A , sues the defendant, Mr B , in the tort of battery relating to a battery through an alleged rape committed by the defendant on the plaintiff in 1972. At that time, the plaintiff was 16 years of age and the defendant was 19 years of age. The defendant denies that there was any battery and asserts that any conduct of a sexual nature with the plaintiff was consensual. The circumstances of what occurred on the particular evening in question are heavily in dispute. The primary issue for the court to determine is whether the plaintiff ’ s account of the events of the particular evening in 1972 should be accepted having regard to all of the evidence . The only expert evidence before the court expresses the opinion that the plaintiff currently has post-traumatic stress disorder (PTSD) and generalised anxiety disorder. Previously , the plaintiff had been diagnosed by various psychologists and psychiatrists with an adjustment disorder, anxiety and depression as well as PTSD. The plaintiff currently takes , and has for a number of years taken, prescription medication for her condition. The plaintiff seeks damages for the tort alleged . I t is accepted by the parties that a battery involving sexual assault is to be determined in accordance with the common law and the Civil Liability Act 2002 (NSW) does not apply: see s 3B(1)(a) of the Civil Liability Act 2002 ( “ CLA ” ) ; Gersbach v Gersbach [2018] NSWS C 1685 at [ 4 8 0 ]; MC v Morris [2019] NSWS C 1326 at [1] . Although the tort of battery may be committed either intentionally or alternatively merely negligently, what is alleged in the present case is an intentional battery: see Croucher v Cachia [2016] NSW CA 132 at [ 34 ] . The pleadings The plaintiff brings her claim by an Amended Statement of Claim filed on 18 September 2018. T he plaintiff alleges conduct on a date between 1 July 1972 and 31 December 1972: paragraph 5 . I t is alleged that the defendant insisted that the plaintiff go for a drive with him . I t is pleaded that the defendant stopped the car and opened the plaintiff ’ s passenger side door. Paragraph 10 of the Amended Statement of Claim provides: “ T he defendant thereafter assaulted and/or sexually abused the plaintiff by without her consent having sexual intercourse with her ” . By a Statement of Particulars filed on 22 August 201 8, the plaintiff particularise s PTSD, depression and anxiety and a reduction in her ability to engage in various activities. By a Defence filed on 21 December 2018 , the defendant says that he does recall a sexual incident involving the plaintiff in October/November 1972 . I n paragraph 6 , the defendant pleads that he denies the allegation of the plaintiff and says that the plaintiff was actively involved and consented to sexual activity which took place. The defendant pleads that he immediately ceased his activity upon the plaintiff requesting that the defendant stop . Sexual abuse is denied (paragraph 7) and it is pleaded that prior to the date of the incident, the plaintiff attended at the defendant ’ s property whilst he was at his residence alone on no less than 12 to 15 occasion s where the defendant and the plaintiff participated in sexual activity . I t is also pleaded that after the incident , the plaintiff continued to be friendly with the defendant and invited the defendant to her wedding. The Court made an order that a ll information tending to reveal the identity of the plaintiff and the defendant in the proceedings is not to be published pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) on the basis that the public interest for the order significantly outweighs the public interest in open justice. The plaintiff’s oral evidence Evidence in chief The plaintiff was shown the chronology which is Exhibit B in the proceedings and confirmed that what was set out in the chronology was true and correct. The plaintiff indicated that her sur name prior to her marriage was J . The plaintiff gave evidence that she was born in June 195x and attended schooling including high schooling in K in New South Wales. Exhibit B indicates that the plaintiff finished her schooling in Year 10 prior to moving to Sydney and obtaining employment at the M Bank . The plaintiff gave evidence that prior to 17 June 1972 she worked in a supermarket as a checkout operator on weekends. The plaintiff stated that she “ probably ” stopped with this job prior to 17 June 1972. The plaintiff gave evidence that she undertook L as a sport and that all her siblings were involved in L . The plaintiff stated that others in K were involved with L as a sport [confidential] . The plaintiff indicated that she knew the defendant prior to June 1972 through L sport [confidential] . Later evidence established that the defendant was a friend of her family particularly her older brother. The plaintiff indicated that prior to 1972 she had not been involved in a sexual relationship. She said that prior to 1972 she had not had a boyfriend. However, the plaintiff gave evidence that prior to June 19 72 she was seeing a Mr N . The plaintiff stated that he lived in P and she saw him on a number of occasion s. Mr N was the brother-in-law of the defendant. On one occasion the defendant and his wife took the plaint iff to P to see Mr N for the day. O n another occasion , Mr N picked the plaintiff up in his car and drove to the defendant ’ s house where the plaintiff had been invited to lunch with the d efendant, his wife and Mr N . The first occasion that the plaintiff had gone out with Mr N was close to her sixteenth birthday : T26.39 . The plaintiff gave evidence t hat at the time she was living with her family at xxx Street in K . She stated that she was residing there with her mother and father, her two brothers and her sister. She stated that prior to June 1972 , the defendant had come to her house on many social occasion s , particularly to see her brother s . I n addition, the plaintiff gave evidence of having contact with the defendant on a number of occasion s prior to the alleged incident the subject of the proceedings . On one occasion , she went to the defendant ’ s house to babysit his xx month old child. Only the plaintiff and the child were present on this occasion . On another occasion , when the plaintiff was 14, the defendant came to her house to ask whether she was attending a party. The plaintiff attended the party with her brother and met up with the defendant at the party but the plaintiff went home in the presence of her brother. On a third occasion , the plaintiff said the defendant came to the plaintiff ’ s house and asked her to go to the local pool. The plaintiff asked her parents for permission and she went to the pool by herself. The plaintiff saw the defendant at the pool. The plaintiff said that she left the pool to walk home , t he defendant had contact with her and asked her to “ go behind a brick wall ” with him which she did. At that time , the plaintiff said the defendant kissed her and tried to pull down the bottom of the plaintiff ’ s swimming costume but she became angry and left and continued home. On yet another occasion , the defendant came to the plaintiff ’ s house when she was home undertaking cleaning. The plaintiff claims that she was led to her parents ’ bedroom by the defendant who kissed her and le a nt back with her on her parents ’ bed. On that occasion a conversation was stated to have occurred where the defendant allegedly said , “ Oh no .. . I t ’ s all over you ” . The plaintiff noted that there was “ creamy white stuff ” on her skirt and she was not sure what it was. The plaintiff said that she and the d efendant were both wearing clothes on that occasion : T32.18 . The plaintiff gave evidence that prior to the alleged assault in 1972 she had never seen a male naked. The plaintiff then gave evidence about the alleged incident the subject of the proceedings . The plaintiff said that this occurred during the September school holidays in 1972. Newspaper evidence before the court suggested that the September school holidays in New South Wales in 1972 ran from 24 August 1972 to 11 September 1972: Exhibit A pages 133-134. The plaintiff gave evidence that she saw the defendant on that occasion when he knocked on the door of her house at about 8pm : T32.31 . The plaintiff recounted a conversation which s he had with the defendant in which he said that he wanted to talk to her about something important. Although the plaintiff initially resisted going with the defendant because she said she was not feeling well , the plaintiff claims that the defendant took her by the arm and led her to the car : T33.17 . The plaintiff indicated that at th e time she was wearing a pink dress with a white collar, underpants under the dress but no shoes. The plaintiff was directed to the passenger seat in the front of the car. The defendant then drove the vehicle for a few minutes to a dirt road behind a number of silos where he stopped the vehicle. The plaintiff said that there were no houses there and it was near a railway line. The plaintiff stated that the defendant got out of the car and went around and opened the passenger door of the vehicle. The plaintiff gave evidence that the defendant pushed the plaintiff down by her shoulders so that she was lying across the passenger and driver ’ s seat s of the vehicle : T34.45 . She then claim ed that t he defendant held her arms by the wrist s with his right hand above her head, pulled her underpants partly down with his left hand and sexually assaulted her : T35.1-36.35 . The plaintiff claim ed that she told the defendant to stop a nd that she did n o t wish to undertake in the activity but he proceeded with the assault. During the course of the alleged assault , the plaintiff claims that the defendant penetrated her vagina with his penis and she felt pain. Whilst this was occurring (and also before penetration) , which went on for a few minutes , the plaintif f asked the defendant to stop w hat he was doing as it was hurting her but he proceeded. In due course , the plaintiff said the defendant let the plaintiff go and he go t out of the car and proceeded to the back of the car. The plaintiff said that she was in shock but eventually got out of the car and went to the back of the car. She noticed that something was running down her leg and she saw blood by the light from the boot. The plaintiff said that she saw the plaintiff wiping his e rect penis with a cloth. She said she had never seen an erect penis before. She requested a cloth from the defendant to wipe the blood running down her leg. The defendant expressed concern that there may be blood on the seat of the car. The plaintiff said she then wiped herself and thr ew the cloth into the boot and got into the car. The plaintiff claim ed that there was no further conversation with the defendant who drove his car and stop ped t he car on the corner of the plaintiff ’ s street . He allegedly said to her words to the effect “ don ’ t tell anyone will you ” : T38.2 . T he defendant then drove away and the plaintiff walked home. There was no one at home when she arrived : T38.16 . The plaintiff said she had a shower and noticed blood on her dress. She said she also washed her hair. The plaintiff said that she got out of the shower and dried herself and placed her pyjamas on. The plaintiff gave evidence that soon after , a friend of her mother ’ s, Ms E , arrived. The plaintiff said that she did not say anything to Ms E about the incident as she felt ashamed, scared and worthless : T39.5 . The plaintiff said that she invited Ms E in and made her tea. She said she had been crying before Ms E arrived at the h ouse both in the shower and in her bedroom : T39.18 . The plaintiff stated that soon after Ms E arrived , her mother came home. At that time the plaintiff said she was seated in the kitchen talking to Ms E at the kitchen table. The plaintiff gave evidence that she said nothing to her mother about the incident. She made a cup of tea for her mother and a couple of minutes later indicated that she wished to go to bed as she was tired. The plaintiff stated that the next day she put her clothes from the previous night in a bag at the bottom of the rubbish bin and threw them out. She said she did not want her mother to see them or k no w what had occurred. The plaintiff said that she felt “ damaged ” and worthless at this time. The plaintiff could not recall what else she did that day. She said she returned to school the following Monday which s he believed to be 12 September 1972. She said that she spoke to a friend of hers, Ms R , who had seen her crying. She told Ms R that there had been “ trouble at home ” : T42.4 . The plaintiff gave evidence that she did not continue to see Mr N . She said she wrote a letter to him ending the friendship . She said she did not want to go to the defendant ’ s home and the defendant was Mr N ’ s brother-in-law. She said she never went back to the defendant ’ s home and never undertook L sport again. The plaintiff stated that she told no one at that time about the incident : T42.31 . After completing her school ing that year , the plaintiff said that after the Christmas holidays she moved to Sydney and obtained banking work. The plaintiff gave evidence that she was very homesick in Sydney and wanted to go home. She returned home at Easter 1973 . At that time , her younger brother was still living at home but her older brother had moved out. Her mother and sister were residing at the house but her father had left for a short time. Her mother encouraged the plaintiff to seek employment and soon after the plaintiff commenced work in a department store. She did not return to L sport in K . The plaintiff gave evidence of meeting her husband when she was 17 : T43.43 . The plaintiff stated that she married her husband Mr C in January 197x . She gave evidence that she told her husband about the incident probably before Easter in 1976 : T44.44 . Her husband encouraged the plaintiff to tell her mother what had occurred when they visited K for Easter 1976: T45.10 . The plaintiff said that she went to her home in K at Easter 1976 and told her mother in the kitchen what had occurred. She said that Ms E was also in the kitchen and heard what she had said. She said she described what had happened in the incident to her mother in some detail : T45.39 . She said she was very upset at the time. The plaintiff said she felt “ devastated ” having to tell her mother in relation to the incident. The plaintiff also stated that in 1976 she told a friend Ms Q that she had been “ raped ” . The plaintiff gave evidence that in 1983 she spoke to her general practitioner Dr P in relation to w hat had occurred in the presence of her husband. The plaintiff stated that she was referred to a psychiatrist in Queensland soon after but s he could not recall the name of the psychiatrist. The plaintiff said that she saw Dr P as her usual general practitioner for 13 years. The plaintiff gave evidence of having difficulties with her daughter G when she was younger. As a result , G had seen a psychologist. The plaintiff stated that she had asked to talk to the psychologist. The plaintiff stated that she inform ed the psychologist that she also had been sexually assaulted. She stated that she saw the psychologist , a Ms M , every three or four weeks with her daughter but had seen Ms M herself on a couple of occasion s : T47.46 . The plaintiff stated that her general practitioner at the time, Dr S , referred the plaintiff to a Ms J , psychologist , in November 2014. The plaintiff attended a number of consultations with Ms J in 2014 and 2015. The plaintiff gave evidence that she was then referred to a Dr Y , psychiatrist. The plaintiff gave evidence that she had been prescribed medication which, although it had been varied over the years, she still took. The plaintiff stated that she had thoughts on occasion s in relation to self-harm and this had occurred first in 2016 when her mother had provided an affidavit for the defendant. The plaintiff indicated that she was very upset at this. The plaintiff also confirmed that she had thoughts and dreams in relation to the incident , although these had reduced more recently. The plaintiff said that those thoughts and dreams were bad in 2014 and she would wake up in a sweat as well as having nightmares and some incontinence issues. The plaintiff ’ s evidence discloses that in 2015 she attended xx Police Station to report the alleged sexual assault. She said that although she lived in Queensland she reported it in New South Wales as the assault had allegedly occurred in New South Wales. The plaintiff indicated that following discussions with police she had called the defendant and had a discussion about the incident. The plaintiff gave evidence that the content of the conversation was in the following terms: “Q. You'd been to the police, you then have a phone call with the defendant? A. Yes. Q. You indicated that you related again what had happened . Do you remember what the defendant said to you, the words he used when you did that? A. “No, no, no, it didn't happen that way.” Q. They were the words he used? A. That's ‑ yes. Q. Did he ever use any other words during the conversation? A. Yes. Q. What else did he say to you? A. Well, he said, “I don't remember it happening that way,” and I said, “I will tell you how it happened,” and I explained as I have today. And I said, “It wasn't consensual, it was rape and aren't you sorry for raping me?” And he said, “Yes, I'm sorry . I'm very, very sorry.” And we repeated that and then the last thing he said to me, “ I'm going to have to ring [S]” who is my older brother. ” (T50.46-T51.16) The plaintiff indicated that the alleged sexual assault had caused problems in her marital relationship which had resulted in her husband always being the initiator of intimacy. The plaintiff said that if she had instigated intimacy she believed that she was “ trashy ” : T51.42 . The plaintiff also indicated that she was very concerned about her security in her house and she ensured that every door was locked. The plaintiff gave evidence about her work ing history . S he stat ed that after marriage , she worked separately from her husband for about six years at a bank data centre and had then proceeded to work in her husband ’ s business. The husband was then a xxx and had started his own business. There the plaintiff undertook administrative duties in relati on to financial matters , including liaising with a book - keeper and an accountant : T52.45 ; T53.23 . The plaintiff stated that her medication sometimes inhibit s her getting to work on time with her sometimes requiring further rest in the morning which cause s her to ar rive at work at 11am or 12 noon . The plaintiff indicated that her husband had now undertaken further st udy and has become a xx [confidential] . The plaintiff indicated that she saw her psychiatrist every month and her general practitioner every second month for a review. The plaintiff ’ s evidence was that she ha s no contact at all with her siblings, her mother or her distant relatives. She said she stopped having contact with her relatives following her husband asking her mother to provide the plaintiff with more support in about October 2014. C ross-examination Mrs A was the subject of an extensive cross-examination in relation to the events of 1972-73, her subsequent consultation of doctors and allied health professionals and the giving by her of statements to the New South Wales police. The plaintiff gave evidence that she was in a group of people , which included her brothers and the defendant , who were interested in L sport whilst teenagers. [Confidential] . She accepted that by 1972 when she was 16 years of age the defendant had married : T56.42 . The plaintiff was then cross-examined as to what she had told Dr L , psychologist, in 201 8 . The plaintiff agreed that she had told Dr L of the events prior to June 1972. She agreed that she had the perception at th is time that the defendant liked her and she also liked him : T58 . The plaintiff also agreed that she told Dr L that she and the defendant had kissed but denied that she started kissing the defendant about two months before the alleged sexual assault incident : T58.40 . The plaintiff was then asked about an incident where the defendant allegedly arrived at her house when she went into her parents ’ bedroom with the defendant. The plaintiff had given evidence about this in her evidence in chief: T31.45-T32.8. The plaintiff gave evidence that both she and the defendant were wearing clothes when they were in the parents ’ bedroom and she was pulled by the defendant by the arm to the parents ’ room. The plaintiff claimed that she did not want to go into the room. She accepted that she may not have told Dr L that the defendant was insisting that she go into the room by physically pulling her by the arm into the bedroom. The plaintiff denied that she did not have a clear recollection that the defendant pulled her into the room. The plaintiff disputed that this was the first time that she had indicated that the defendant had pulled her arm: see T31.50. It was then put to the plaintiff that she did not tell Dr L as she had given evidence in chief that in this incident when she went to the bathroom she saw on her skirt “ this creamy white stuff and I wasn't sure what it was ” : T32.4. The plaintiff appeared to suggest in that evidence that it was the defendant ’ s ejaculate which was on her skirt. The plaintiff claimed that she told Dr L everything and she had a clear recollection of what she told her. The plaintiff stated that she believe d she did use the phrase “ creamy white stuff ” in telling Dr L . The plaintiff agreed that she told Dr L that her skirt was wet but denied embellishing her story in her evidence in chief by saying that the defendant pulled her or adding details in relation to how her skirt was wet. The plaintiff denied that the alleged incident in her parents ’ bedroom was a fiction and made up by her : T65.44 ; T66.28 . When the plaintiff was asked how this event could have occurred when both she and the defendant were clothed as she indicated in her evidence in chief (T32.21), the plaintiff said she assumed that the defendant must have undone his zip per in the dim light in the parents ’ room. The plaintiff agreed that in her evidence in chief she did not mention her assumption that the defendant had his zip per undone and said that she did not know whether that was the case : T67 -68 . The plaintiff was then asked about her evidence in chief relating to an alleged incident after she and the defendant had left a swimming pool in K : T30.29-T31.25. The plaintiff agreed that this occurred before the defendant was married and believed it was when she was 14 years old. She said the defendant walked home with her and took her behind a wall at the school where he kissed her. It was put to the plaintiff that she told Dr L that the defendant tried to take down her underwear. The plaintiff said that this was not correct and consistently with her evidence in chief, she said that the defendant tried to pull the bottom of her swimming costume down: T31.29 ; T68.44 . It was put to the plaintiff that the pool incident never occurred and the plaintiff denied this and said that it did occur : T69.21 . The plaintiff was then asked about answers to a request for further and better particulars which her solicitors had supplied to the solicitors for the defendant. She was also asked about the history provided to Dr B by her solicitors. She agreed that the source of the solicitors ’ instructions both to the doctor and for the answers to particulars was her. It was put to the plaintiff that the first time that there was kissing between her and the defendant was after the defendant was married and when she was invited to the defendant's home with her then friend Mr N and she followed the defendant when he entered a room to check on the baby. The plaintiff denied that she kissed the defendant in the baby's room and that is how her intimacy with the defendant started about two months before the alleged sexual assault. The plaintiff also denied the suggestion that she rode over to the defendant's home on 12 to 15 occasion s when the defendant's wife was not present as she was working as a nurse. The plaintiff denied that she touched and cuddled the defendant and he stopped at her request. The plaintiff said that she did not attend the defendant's premises as indicated : T71.47 . The plaintiff was then asked a number of questions in relation to the night of the alleged sexual assault. The plaintiff confirmed that at that time she was home alone and her sister was at a sleepover at her aunt's house and her mother was also at the aunt ’ s house. The plaintiff gave evidence that her mother had left to go to her aunt's house at about 8 to 8:30pm : T73.42 . T his should be compared to the plaintiff's evidence in chief that the defendant arrived at her house on the day of the alleged sexual assault at approximately 8pm: T32.31 ; T33.2. The plaintiff confirmed that her mother had left before the defendant arrived and that she had on her favourite dress which was pink with a white collar. She denied that she only wore it on special occasion s. She also denied that she was not wearing the dress when her mother left. She accepted that her mother would have seen all her clothing in the wash and conceded that she only had two or three dresses : T74.32 . She accepted that her mother should have known of all of her dresses : T74.49 . It was put to the plaintiff that she did not have a pink dress at the time and the plaintiff denied this and said that she did. She also denied that she did not have the pink dress on when her mother left. The plaintiff could not recall a navy blue dress with white flowers : T75.19 . The plaintiff denied that her favourite dress at the time was a navy blue dress with white flowers. The plaintiff also denied that she was wearing her favourite dress as she thought the defendant was coming to her house : T75.39 . The plaintiff was then cross-examined about the conversation which s he allegedly had with the defendant on the night of the alleged sexual assault as given by her in her evidence in chief compared to what is set out in paragraph numbered two of the f urther and b etter p articul ars provided by letter dated 21 November 2018: Exhibit 1 . The plaintiff accepted that she had given accurate and full instructions to her solicitors for the purposes of the particular s . In her evidence in chief, the plaintiff stated that the defendant “ coerced ” her to get into the passenger side of his car: T33.19. However, the plaintiff accepted that the defendant was pulling on her arm and she consented to get into the car : T78.46 . She denied that she did not want to take too long with the defendant as her mother was out. The plaintiff stated that she recalled the car being a golden brown W and denied that the car of the defendant was a white X . The plaintiff was then cross-exami ned about the reference in the further and b etter p articulars where it is stated : “ T he plaintiff cannot recall an exact date, however to the best of her recollection it was a date in July, as the plaintiff had just turned 16 ” . The plaintiff said her recollection was that the sexual assault occurred not long after she had turned 16 and she could not recall the month. The plaintiff confirmed her evidence that she believed the sexual assault occurred on a day during the school holidays. This was consistent with her evidence in chief: T32.34. The plaintiff agreed that when she saw the police in 2015 she believed that the incident occurred when she was over 16, not long after her sixteenth birthday. She said that she could not recall the incident occurring in July but accepted that she could have said something similar to what is appearing in paragraph 1( i ) of the letter supplying further and better particulars. However , the plaintiff denied telling the solicitors that it occurred in July but agreed that she could have said that it occurred somewhere between July and September 1972. The plaintiff gave evidence that she first recalled that the alleged sexual assault occurred in the school holidays in 2020 or 2021 : T83.34 . When it was suggested to the plaintiff that she was giving evidence that she recalled a matter in 2021 which she had not recalled for the last 40 years, the plaintiff said that she had put it out of her mind. It was then put to the plaintiff that after she had got into the defendant's car , he had driven to the hospital car park where she and the defendant had kissed and cuddled for about 30 minutes. The plaintiff denied this. The plaintiff also denied the proposition that the defendant never took her on the night of the alleged sexua l assault on a dirt road near silo s . It was put to the plaintiff that the defendant went to the passenger side of the car swung her legs out , removed her underpants and then penetrated her vagina with his penis , and that nothing occurred to indicate that she was not consenting to the activity. It was then suggested that after the defendant had penetrated her , the plaintiff pushed him off with both hands on h is chest and he withdrew. The plaintiff denied this account while accepting that the defendant penetrated her vagina with his penis. She rejected the proposition that she said nothing to the defendant to indicate that she was not consenting : T84.30-T85.35 . It was put to the plaintiff that she had some blood on her person and she said it was running down her legs. She denied that the defendant came back with a towel for her. She agreed that the defendant got back into the car and drove her home but she said he dropped her at the corner : T85.42 . The plaintiff was then asked some questions in relation to her dress. She denied that it was her evidence that her dress was torn and said it was not torn. She also denied that she had told Dr B that her dress was torn and damaged in the incident. In her first report , Dr B states: “ Ms A said once she returned home, she went into the shower and threw her dress and underwear into the rubbish bin. She said her clothes were stained and torn and it was a favourite dress of hers ” . The plaintiff stated that she did not say that her dress was torn to Dr B . The plaintiff accepted that she could not recall exactly what she said to Dr B but she said that her underpants w ere torn in the incident but not her dress. The plaintiff confirmed her evidence in chief (T38.25) that she had blood on her dress : T87.37 . She could not recall whether the blood was “ all over ” the dress . The plaintiff accepted that the blood on the dress would have been obvious to anyone who saw her including her mother if she had seen her : T88.1 . She agreed that she walked home after being dropped off crying and with blood on her dress and was still crying when she arrived home : T88.4 . The plaintiff said that when she returned home she knew her sister was not present as she had gone for a sleepover. She also knew that her mother's friend Ms E would not be there as she called in to her mother on a Wednesday night a fter she finished work at 10pm. The plaintiff accepted that she did not know who would be at home when she arrived and a greed that her mother could have been at home. She also agreed that if her mother was at home there would have been no way of disguising her distress. Whilst the plaintiff agreed that she took no steps to check if her mother was home and had no intention of h iding anything from her mother i nitially , she took her clothes off and threw them to the bottom of the garbage as she did not want her mother to find out. The plaintiff said that she said nothing remarkable to either her mother or her mother's friend Ms E but simply made them tea. The plaintiff was cross-examined about the answers to particulars referring to the plaintiff disposing “ of her clothing and underwear in the garbage ” whereas the plaintiff's evidence was that she put the clothes “ at the bottom of the rubbish bin ” : T40.42. The plaintiff denied this was an embellishment to her story and said that it happened. It was put to the plaintiff that her mother did not like her going out with the defendant once he was married. The plaintiff said that she never went out with the defendant once he was married. The plaintiff importantly agreed that the night of the alleged sexual assault was the only occasion when she got in the car with the defendant alone in the second half of 1972 : T92.21 . This was inconsistent with the plaintiff ’ s mother ’ s evidence. The plaintiff said she got in the car with the defendant and his wife and baby prior to the incident when they took her to see Mr N in P . This was consistent with the plaintiff's evidence in chief: T26.18. It was put to the plaintiff that when she arrived home on the night of the alleged sexual assault that her mother and her mother's friend Ms E were at home. The plaintiff denied this and further denied that she told her mother that she had been on a drive with the defendant and that her mother had indicated that as he was married she did not want her going out with him. The plaintiff accepted that this was her mother ’ s version as she understood it. The plaintiff accepted that if her mother and Ms E were home then her version of the evening could not be correct : T93.23 . The plaintiff said: “ Things would be different. ” It was put to the plaintiff that it was inconceivable that her mother would not have noticed if she had thrown out one of her few dresses. The plaintiff denied that her mother would have known if the dress had disappeared. However, the plaintiff said that she never discussed clothing with her mother other than saying that the pink dress with the white collar was her favourite dress. The plaintiff denied that when she returned home that her sister was home in bed and said she was at a sleepover . T he plaintiff confirmed that she changed in her bedroom after she arrived home . It was put to the plaintiff that she attended a farewell party for the defendant when he left to go to Sydney. She denied this and also denied that the family held a farewell party for the defendant when he moved to Sydney. The plaintiff was then asked a number of questions about the period after she moved to Sydney before she returned to K at Easter 1973. The plaintiff accepted that she was in Sydney from the beginning of 1973 until Easter. She also accepted that the defendant was in Sydney at this time. The plaintiff confirmed that while she was in Sydney she attended L [sporting] events. She said she was aware that the defendant was an avid [L sport] but claimed that she “ never gave it a thought ” that the defendant was likely to be at events : T95.36 . She said she never sat together with the defendant and could not recall walking past him. She said she always tried to avoid him. The plaintiff said that she attended L [sporting] events in the period probably about three times. She denied that she did not mind if the defendant attended the events and further denied that this was because the alleged sexual assault never occurred. The plaintiff said that she saw the defendant's wife and the baby at some of the L [sporting] events but could not recall seeing the defendant at the events although she accepted that if his wife and baby were there he would also be at the events: T97.21. The plaintiff was asked about other occasion s when she saw the defendant in Sydney between the beginning of 1973 and Easter 1973. The plaintiff gave evidence that she recalled the defendant and his wife and baby arriving at the family home where her brother and her lived in Sydney and requesting that she go and spend the day with them. The plaintiff conceded that she did go with the defendant and his wife and baby to their residence for lunch and “ a short while in the afternoon ” : T97.43. The plaintiff asserted that she did not want to go (T97.50) but claimed that everyone was insisting that she go and she felt she did not have a choice and if she did not go everyone “ would think it was odd ” : T98.6. The plaintiff conceded that she drove in the car with the defendant which was the same car that she alleged that she was assaulted in : T98.13-.17. The plaintiff was then asked about an incident where the defendant gave her a lift when he was in xxx Road in Y in Sydney. She confirmed that she met him in the street and he offered to give her a lift. This was about six months after the alleged sexual assault. The plaintiff agreed that she accepted his li ft on the basis that he had told her that there were no more buses coming and she had worked late at the bank until about 7:30pm. The plaintiff said that she believed him. The plaintiff was questioned whether she believed her alleged “ rapist ” , six months after the event when he told her that there were no buses . The plaintiff said she did. The plaintiff also agreed that the car she accepted the lift in was the same car that she alleged that she had been raped in : T99.42. The plaintiff agreed with counsel for the defendant that the defendant tried to give her a kiss and she said to stop it. She denied that she said “ I don't want to do this anymore ” . The plaintiff agreed that the defendant then took her home: T99.35-T100.10. In later evidence, the plaintiff said she was also living in Y at the time. The plaintiff also agreed that she obtained a lift home to K with another person in the defendant's car when he drove back with his wife and baby. The plaintiff said she got in the car because her mother and brother had organised the lift and she did not want to have to explain why she would not want to go in the car: T100.44. The plaintiff accepted that she had taken lift s from the defendant about six months after he had allegedly violently assaulted her in the same car in which she was assaulted. The plaintiff justified her accepting a lift from the defendant outside her work as he had indicated that there were no more buses and she was a 16-year-old girl “ in an unknown city ” : T101.18 . The plaintiff denied that when she received a lift from the defendant outside her bank that it was not as late as 7pm but only 4pm and it was daylight. The plaintiff accepted that she had attended three Easter L [sporting events] with her husband in K . She said the first of the L [sporting events] was in 1974 and the first two [sporting events] occurred when she had not yet been married to her husband. The plaintiff agreed that she spoke to the defendant at a barbecue which occurred during one of the L [sporting events] but claimed that the barbecue was at her house and not elsewhere: T103.20-.33. The plaintiff denied introducing the defendant to her now husband: T103.44. The plaintiff was asked questions about her wedding. She said she was married in January 197 x . She denied that she organised the wedding and said that her mother was in full control of the wedding: T103.50. The plaintiff also denied that she was in control of who was invited to the wedding. In answer to the question that she could have told her mother if she did not want someone to be invited to the wedding s he said, “ I never gave it a thought ” : T104.6. The plaintiff asserted that she told her now husband at the time that she did not want the defendant and his wife at the wedding but she did not know what to do. The plaintiff said that her husband did not ask what the reason was for why she did not want them at the wedding: T104.10-.23. The plaintiff accepted that she did not take any steps to have the defendant removed from the wedding list: T105.40. The plaintiff agreed that prior to her marriage she did not tell her current husband about the alleged sexual assault: T105.47. She stated that before she got married her husband had asked about whether she had had previous sexual partners and that she did not answer him: T106.3-.15. The plaintiff accepted that she did not tell her husband prior to the marriage that she had had any sexual encounters whether with or without consent: T107.9. This is consistent with the plaintiff's evidence in chief that when the plaintiff's now husband asked her whether she had previously had sex with anyone prior to the marriage that she did not say anything: T44.36. The plaintiff agreed that after her marriage , she did tell her husband about the alleged sexual assault and he continued to press her about it: T106.28 and .35. The plaintiff agreed that she thought she had to tell him about the previous encounter with the defendant: T107.39. The plaintiff denied that when she told her husband she formed a view in her own mind that the way to lessen the emotional impact upon her husband was to tell him that the act with the defendant had not been consensual: T108.22. The plaintiff agreed that her husband kept asking her the details of the sexual assault and she had to recount to him what had occurred in 1972 with the defendant on many occasion s: T108.38-.44. The plaintiff denied that i n recounting the events to her husband that she felt pressure from him to say that the activity was without her consent: T109.9. The plaintiff stated that she believed that she told her husband that she did not “ want it to happen ” but later told him that she had expressly said to the defendant “ no ” : T109.36-T110.1. The plaintiff agreed that she first told her mother of the alleged assault at Easter 1976. She denied that her now husband was present when she informed her mother or that it was first raised by her husband: T110.9-.36. The plaintiff was then asked a number of questions about her medical treatment. She agreed that she first sought medical treatment relating to the incident in 1983 from her general practitioner , Dr P . She said that her husband and she went to see the doctor together and he referred them to a psychiatrist for a form of marital counselling. The plaintiff was then asked a number of questions about her consultations with Dr S . The plaintiff denied that the first time that she told Dr S about the alleged sexual assault was in November 2014 some two years after she began seeing Dr S . The plaintiff asserted that she told Dr S about the sexual assault in the period up to 2012: T112.43. The plaintiff rejected that she only told Dr S in 2014. However , Dr S 's notes in evidence first refer to a sexual assault in November 2014. The plaintiff was taken to an entry of 24 May 2012 where Dr S records the plaintiff as not working. The plaintiff said that she always did the paperwork for her husband's business but completed it sometimes at home until her daughter left home. The plaintiff denied that when she told Dr S in May 2012 that she felt “ overwhelmed ” that she did not tell her about the sexual assault. The plaintiff was taken to the entry for 13 November 2014 when Dr S diagnosed the plaintiff as suffering from PTSD and an adjustment disorder a rising from being raped as a 16-year-old. She denied that this was the first time she had told Dr S of the incident. The plaintiff agreed that thereafter , Dr S referred her to see Ms J , psychologist , and prescribed her medication. The plaintiff was then asked about attending the police station in xxx . She accept ed that she attended the police station prior to 22 June 2015 as it is recorded in Dr S 's notes. She denied that rehashing the eve nts exacerbated her depression. S he agreed that she work ed with her husband in his business most of the time and had worked with her husband after completing work at the bank after several years . The plaintiff was asked about having a telephone conversation with the defendant while she was at the police station. She agreed that she did not tell him that he was being recorded. The plaintiff asserted that the defendant said to her that he was “ very, very sorry ” and accepted that what he was referring to was the fact that she was upset about what had occurred in 1972: T120.21. The plaintiff also accepted that at no stage in the conversation did the defendant ever agree that what had occurred in 1972 was without her co nsent: T120.28. See also T51.11. The plaintiff conceded that she had recounted the events relating to the alleged sexual assault in 1972 on numerous occasion s with the final version being in her evidence in chief. The plaintiff agreed that every time she gave her account of the events that she had to reconstruct the event in her mind : T128.39 . However , she rejected the proposition that in the course of that reconstruction she changed the version of the events which took place on the relevant night. She also rejected the proposition that she had altered what was a consensual activity into a non-consensual violent assault: T128.47 . In re-examination, the plaintiff said that she had been seeing Dr S, her previous general practitioner , from approximately 1995. The plaintiff made an application for leave to adduce further evidence in chief in relation to a conversation which s he allegedly had with her mother in 1976 when she told her what her version was of what had occurred. After hearing submissions, leave was granted by the court. The plaintiff was reminded of her evidence in chief that when she returned to her mother's house in Easter 1976 she spoke to her mother. The plaintiff's evidence in chief was as follows: “Q. Did you again just briefly tell them or did you describe what had happened? A. No, I described to my mother what had happened. Q. Is that similar to what you've described to the Court today? A. Yes. HIS HONOUR Q. So in some detail? A. Yes.” (T45.20-T45.29). The plaintiff said that she felt “ devastated ” abo ut having to tell her mother: T 45.47. The plaintiff t hen gave the following version of what she told her mother: “Q. I want you to relate to the Court what you said to your mother first of all? A. I went out to my mother from the bedroom and I was crying and I said I have to tell you something. Q. You said, “I have to tell you something”, did she reply to that at all? A. She said, “What do you have to tell me”? Q. And what did you then say? A. I told her that [Mr B] had sexually assaulted me. Q. So you have told her that? A. Yes. Q. What else did you say? A. And she said, “What happened”? Q. Yes? A. And I told her that he wanted to talk to me and I didn't really want to go because I wasn't feeling well and I told her that you know, that I walked him out to the front yard and he coerced me into the car. Opened the passenger's side door and pulled on my arm and then coerced me into the car. Q. Did you continue talking or did your mother say anything at that point in time? A. No, she was just listening. Q. What else did you say? A. I said he drove up the street towards [V's] and when we got to that corner I said, “What do you want to talk about” and he said, “Wait till we stop and I will tell you.” So we turned left and went up to the [xxx], turned right and then left over the railway line and I said to my mother that he pulled up behind the silos on the dirt road. I told her that he got out so I was turning around ‑‑ SLEIGHT: Excuse me, your Honour, I've not objected so far but perhaps the words “I told him that” the words he used could be? HIS HONOUR: Yes. … Q. Please go on? A. And I told my mother that “I thought he wanted to get out of the car to talk and so I turned my legs around and he opened the door.” And I told my mother that “He pushed me down by the shoulders” and I was getting quite upset at the time and I do believe my mother's friend, [Ms E], was in the kitchen as well ‑‑ SLEIGHT: Your Honour please. HIS HONOUR: Q. We're not worried who else is there, we're just dealing with the conversation. A. Yes. Okay. Q. So you told your mother that he pushed you down by the shoulders? A. Yes. Q. Did you tell her anything else? A. Yes, I told her exactly what had happened. Q. Well, no, I want you to tell me what you said to her? A. Yes. And “once he pushed me down by the shoulders he grabbed both my wrists in his right hand and then he got the small of ‑ put his other left hand under the small of my back and shoved me up against the door.” And I said to my mother that “My head was awkwardly up against the driver's side door” and ‑‑ Q. Go on. A. And she said, my mother never said anything, she just let me talk. And I said, “I told him 'What are you doing? Stop it, I don't want to do this'“ and she just listened. And when I told my mother that I said that ‑ I told my mother that “He said, 'You're not a virgin'“ and I told her that I told him “I am a virgin.” And then I told my mother that “I thought all I have to do is keep my legs tight together and nothing would happen because I couldn't move my arms below, they were trapped on the steering wheel. I couldn't move my arms” ‑ excuse me I need a drink. Q. Take your time. A. And then I said to her that “I just felt helpless” and I said, “You're hurting me.” I told my mother that I said to him “You're hurting me. Stop it. I don't want to do this.” And then he put ‑ I told her that he put his knees into my thighs and made my legs spread apart and I said to my mother “ Even though he spread my legs apart a bit I still thought I have to ‑ I kept them as tight as I could to try to stop anything.” And I said to my mother that “He forced his penis into me and I felt pain, such terrible pain, and I kept asking him to 'Stop it. You're hurting me' and he said, 'It won't hurt soon'“. And ‑ and then I told my mother that I persistently asked him to stop it, that he was hurting me and that I didn't want to do this. So then I told my mother that “He went around to the back of the car and I was in shock and I got out of the car” and I told her “I felt something running down my legs and it was blood” and I told her that I asked him “Could I have something to wipe my legs with because I have blood on my legs” and I told my mother that he was more worried whether I had blood on the seat or not. And then I hopped back in the car and I said, “Then he drove me home to the corner and dropped me off at the corner.” And I told my mother that “My husband is very upset because he still has contact with our family and that he doesn't want him coming around here anymore or having contact with our family.” And my mother didn't give me a hug or anything. HIS HONOUR: Hold on. ANDREWS: Q. That's the conversation is it? A. No, that's not the end of the conversation. The end of the conversation was “ I will go and talk to [Mr C].” HIS HONOUR: Q. Is that what your mother said? A. Yes.” ( T145.5-.42; T146.28-147.49) The plaintiff gave evidence that her husband was in her parents ’ bedroom at the time she had this conversation and there were no other persons present with her mother. It is to be noted that the plaintiff's account of the night in question before she arrived home concluded when she said that the defendant dropped her at the street corner. In further cross-examination, c ounsel for the defendant put to the plaintiff that she had no independent recollection of what she had told her mother 44 years earlier at Easter 1976 . The plaintiff rejected this and said she did have a recollection : T150.15 . S he also rejected the proposition that she had merely assumed that she had given her mother a detailed account. The plaintiff rejected that she always assumed the accounts were the same as she kept rehearsing the events in her mind : T151.21 . The plaintiff rejected the proposition that her mother had interrupted her as she gave her account and claimed that she had given the detailed account to her mother without any interruption. The plaintiff conceded that she did not tell her mother that when she returned she had showered and thrown out her dress which had blood on it : T152.25 . The plaintiff denied fabricating the account she gave her mother and said that she told her the truth : T158.18 . S he conceded that the account was similar to the account she had given her in her evidence in chief but not completely the same . The plaintiff rejected the suggestion that her version of her conversation with her mother in 1976 never happened and in particular that she never mentioned to her mother at that time the details of the alleged sexual assault : T158.25 . The plaintiff rejected the proposition that the first time that her mother was told about the sexual assault her husband was in the kitchen and there were present the plaintiff, her husband, her mother and her mother's friend Ms E : T158.37 . The plaintiff also rejected the suggestion that her husband had said to her mother that he wished her to go and tell the defendant's mother that her son had raped the plaintiff. The plaintiff rejected that she was standing behind her husband when he said this and s he had shaken her head. The plaintiff rejected the proposition that her mother had said “ I don't think so ” and that the plaintiff's husband had asked her to go and wake the plaintiff's father. It was put to the plaintiff that the plaintiff ’ s mother said that they would talk about it in the morning and that when it was raised with her the next day the plaintiff had replied: “ J ust leave it ” : T 159.19 . The plaintiff denied this. The plaintiff was later recalled and counsel for the defendant put to her that when she had a conversation with her mother in the kitchen in 1976 when her husband told her about the alleged assault, her mother asked when it was supposed to have happened and her husband replied the night “ you went to [ V 's ] ” . The plaintiff denied this and said she was never present when her husband said this to her mother. Oral evidence of Mr C Evidence in chief Oral evidence was given in the proceedings by Mr C , the husband of the plaintiff. Mr C gave evidence that he was born in June 195 x which made him nearly xx at the time of the final hearing. Mr C gave evidence that he first met the plaintiff at Christmas time in 1 972 at her uncle's place in K . At that time , he was attending a L [sporting] event in the country area. Mr C said he also came to a L [sporting] event at the end of 1973 when he went out with the plaintiff in a group for dinner to the local RSL club in K . The evidence established t hat the plaintiff and Mr C started courting and the plaintiff travelled to see Mr C in Brisbane where he resided. In due course, the plaintiff and Mr C decided to become engaged in early 197x and t hey were married in January 197x . Mr C gave evidence that he had intimacy with the plaintiff prior to their marriage and noticed that she was very tense and did not participate during intimacy. Mr C gave evidence that at some stage he asked the plaintiff whether she had been with anyone else pr eviously and he stated that the plaintiff did not answer him, went quiet, turned away , was crying and seemed very depressed. He said he had felt he had done something wrong and he apologised to the plaintiff. Mr C stated that he raise d the topic with the plaintiff on a number of other occasion s until the plaintiff and he got married and he received a similar response from the plaintiff. Mr C gave evidence that in December 197 x shortly before his marriage , the plaintiff said to him words to the effect: “ H e pulled my pants or ripped my pants down to my knees ” but did not identify who the “ he ” was: T 167.39 . H e said he did not follow up on the matter as it appeared to be upsetting the plaintiff. Evidence was given by Mr C that after their honeymoon in about January 197x the plaintiff informed him that she had never been sexually active with anyone else but said that she had been subject to a sexual assault: T 169.40 . The plaintiff ’ s husband said that they had, in his view, difficulties with intimacy. Mr C said that he had a further discussion with the plaintiff on the topic. Mr C stated that the plaintiff said the following to him: Q. She said, I said and what? Not a summary. A. She told me that ‑ I don't think she actually used his name because I already knew who it was. Q. Okay, well you tell us what she said? A. She said that he took her for ‑ ”He come uninvited to the house— … A. Yes. She told me she was unwell at the time and he was trying to get her to go for a drive in the car. She said she didn't want to go but eventually ‑ she ‑ she went to walk him out ‑ this is what she told me, she went to walk him out outside the house but he kept coaxing her, pulling on her arm to get in the car to go for a drive. He told her that “I need to have a talk” and she told me that they went for a drive to where the silos were and she described exactly what happened to me, that ‑‑ Q. What did she say? A. He got ‑ he got out of the car door, the driver's door, walked around to the other side ‑ the passenger side of the door. [A] was ‑ turned around and he opened the door up. She turned around with her legs to get out of the door and then he pushed her down by her shoulders, grabbed her arms, put all his body weight on top of her. He put his thighs between ‑ his knees between her legs, pinched her legs and he ripped her underpants down and told me all those things, ripped her underpants down to her knees. She said it was very painful with the ‑ she actually said it was the worst pain she ever experienced and she also told me that he said, “You're not a virgin.” She told him, “Yes I am, stop, please, stop. I don't want to do this.” She said she said that multiple times and she said that the plaintiff sexually assaulted her, yeah. (T172.3-.38) Mr C stated in this part of his evidence that the plaintiff did not identify who the person was that the plaintiff was talking about . He asserted that he knew who it was because of a conversation with a third party. After this conversation, Mr C said that he and the plaintiff we nt to her mother's house in K at Easter time in 1976 and stayed there. He recalled that he and the plaintiff stayed in her parents ’ room and that her sister was present. During his stay in the house, Mr C stated that he had a conversation with the plaintiff's mother in the house. T his occurred in the parents ’ bed room and only the plaintiff's mother and h e were present. Mr C said that he did not have a conversation with the plaintiff's mother about the topic when his wife was present. He also said that he did not have a conversation on the topic with the mother in the kitchen of the house : T174-175 . Mr C gave evidence that he attended an Easter L [sporting event] in K in 1976 at which he spoke to the defendant [confidential] on a Sunday night. Mr C gave evidence that he approached the defendant and said words to the following effect to him: “ Do you realise how much you have hurt her. You raped her ” . Mr C said he did not hear the defendant say anything in response: T 176.39-T177.2 . He said no further conversation occurred between him and the defendant at that time. Mr C asserted that after that incident he had a further conversation with the plaintiff's mother in the parents ’ bedroom in the house and next day moved to return to Brisbane by car : T177 . Mr C gave evidence that in February 19 7x he and the plaintiff moved to a new house in Brisbane. He stated that at that time the intimate relationship with the plaintiff was not “ good ” . He said that they were “ always talking ” about the alleged sexual assault: T 178.25 . Mr C stated that he attended the plaintiff's general practitioner Dr P with the plaintiff and obtained a referral to a psychiatrist in about 1980-1981 where the alleged sexual assault was di scussed. Following this, Mr C said his intimate relationship with his wife improved in the following decade. He claimed that on one occasion he raise d the plaintiff's arms above her head during intimacy and this upset the plaintiff : T179.30 . Mr C gave evidence that in 1990 the plaintiff ’ s younger brother was staying with them in Brisbane. At that time , he understood that the plaintiff and her mother were arguing. Following this, Mr C said that he rang the U Club to obtain the defendant ’ s telephone number. He said he wished to talk to the defendant to see if he showed remorse and to ask him to talk to the plaintiff's mother to assi s t their relationship. Mr C asserted that he had a conversation with the defendant in which he said that the plaintiff and her mother were arguing because of what the defendant did to the plaintiff. He effectively asked the defendant to telephone the plaintiff's mother to tell her what he had done. Mr C gave evidence that the defendant replied: “ I've heard that [A] was okay with it ” and then hung up. Mr C gave evidence that over the years the plaintiff was very anxious and stressed all the time and appeared to be depressed. He said the plaintiff took medication and rested frequently. At his work, Mr C said that the plaintiff's function was to do the book work and bring the patients in and out. He said that the plaintiff often got into work late and after a few hours had another rest. In relation to house work, Mr C said that he helped out. Cross examination Mr C was cross-examined in relation to a number of matters concerning his interaction with the defendant and the plaintiff relating to the plaintiff ’ s recollections of the alleged sexual assault. Mr C indicated that he did not recall being introduced to the defendant by his future wife before their marriage when they arrived at a barbecue by car in K . He stated that the plaintiff did not call the defendant over and introduc e him to Mr C . Mr C agreed with the proposition that he had discussed the details of the alleged sexual assault with his wife on many occasion s over the last 44 years : T188.1 . When it was put to him that the details were discussed many times a year, he said that they were not discussed through the whole of their marriage. However, he conceded that over the xx years of his marriage to his wife that they had discussed the incident “ hundreds of times ” : T 188.8 . He also agreed that when he was discussing with his wife whether to bring the proceedings he discussed the facts of the incident with her. He agreed that he could not remember every occasion when he discussed the details of the incident with her over their marriage. However, Mr C said that he did remember some occasion s. He agreed that he could not remember the precise words used in those discussions but could remember his understanding of what was said. Mr C agreed that if his wife won the proceedings and recovered damages that he would benefit from that and similarly if she lost the proceedings and a costs order was made against her that he would be financially worse off. He also accepted that if the court found that a sexual assault had occurred that his wife would be vindicated and that this would assist her emotionally . Mr C was then asked a number of questions about his evidence in chief given at T163-167 concerning his initial discussions with the plaintiff about her sexual experience . Despite his evidence at T167.7 where Mr C stated that he asked his wife about her sexual history on “ quite a few other times ” , Mr C disputed this. He said that he had only asked her once whether she had been with anyone else prior to the marriage and never asked her who it was : T192.30 cf T191.32 . After extensive further cross examination, Mr C accepted that prior to his marriage he had asked his wife whether she had been with anyone sexually prior to him quite a few times: T 195.7; T196.2 . He said that she responded only once to his questions prior to the marriage but otherwise did not respond: see T167.35 ; T195.11 . Mr C was then asked a number of questions about his evidence in chief at T167.38 and T172.45-T173.42. Mr C said that his evidence in chief was incorrect that his wife did not identify the perpetrator in her account: T172.14-.38 ; T199.20 . He said he wished to change his evidence and he should have given evidence that she had used the defendant's name : T201.11 . Mr C conceded that his evidence in chief was wrong, that his wife did mention the name of the defendant and he said that in giving his evidence he regarded it as being “ easy to get confused and nervous ” . Mr C 's evidence was confusing in relation to this issue. The cross-examination was extensive and he appeared to have real difficulties in following the questioning. He rejected the proposition that he pressed his wife into agreeing that the perpetrator was the defendant : T206.12 . Mr C said he never suggested the defendant to the plaintiff and kept his own counsel as to the identity of the perpetrator. [Confidential] . Mr C was then asked whether he had spoken to the plaintiff's mother in relation to the alleged sexual assault in about 1977 in the mother's kitchen. He rejected this. He also rejected that the mother's friend Ms E was present during the conversation . Mr C denied that he asked the plaintiff's mother to “ wake-up Mrs [B] and tell her that her son had raped [A] ” and that the plaintiff's mother replied “ I don't think so ” . Mr C agreed that he had met the plaintiff's mother at [the plaintiff ’ s brother F ’ s] house and had asked F to arrange the meeting. He denied telling the plaintiff's mother that he was obsessing about the issue and was seething in relation to it: T208.46 . He said he was going to see a psych ologist in the hope that his wife would come with him at the time. Mr C accepted that he saw the defendant at K at the AA and had accused the defendant of raping his wife. He denied that he walked rapidly past the defendant and said to him words to the effect: “ You should be in gaol ” , without giving the defendant an opportunity to reply. He denied that the defendant was with his brother at the time. Mr C agreed that he had obtained the telephone number of the defendant and had rung him. However , he said this only occurred on one occasion and he denied that it occurred many times. He also denied when he suggested to the defendant that he had raped the plaintiff that t he defendant replied: “ No, I did not, we had an affair ” or words that e ffect. It was put to Mr C that his recollection of conversations had faded over time and that he had had numerous conversations with the plaintiff and others in relation to the incident. He said he had numerous conversations with his wife about t he incident but not with others : T210.39 . Mr C was later recalled and it was put to him that when he had a conversation in the kitchen with the plaintiff's mother in 1976 she asked when the incident was supposed to have happened and he replied “ the night you went to [ V 's ] ” . Mr C denied that this conversation occurred. Mr C later denied in further evidence the evidence of Mrs D [plaintiff ’ s mother] as to a conversation with her on the balcony at F 's place in about November 2014. Oral evidence of Mr F Oral evidence was given by Mr F , the youngest brother of the plaintiff. Mr F gave evidence that he first heard of the defendant committing a sexual assault on his sister , the plaintiff , in around 2003. He said at that time he was living with the plaintiff and her husband for two or three weeks. Mr F stated that he was informed by Mr C that the plaintiff had been raped when she was younger. He gave evidence that Mr C stated that the plaintiff was raped by the defendant and it happened in a car in the front seat. [Confidential] . Mr F said that he arranged for Mr C to meet with his mother. This was following a conversation with Mr C when he asked whether it was permissible to speak to the plaintiff's mother in relation to the rape. Mr F said that when he came home he found his mother in tears and he spoke to Mr C asking him to revisit the matter with his mother at another time. Mr F stated that Mr C informed him that he could not sleep of a night and that he went over the incident again and again and had arranged a psych ological appointment in November 2014. He said Mr C was crying at the time and he offered to go with him to the appointment despite it being on Mr F 's birthday. Mr F stated that Mr C later informed him that he was not going to the appointment. Mr F was extensively cross-examined in relation to his recollection of his conversations with Mr C . Mr F said that he believed the first time he was asked to recall the conversations in about 2003 by anyone was when the police investigation happened which he put as being five to six years ago. He had agreed that he had not recorded the various words that Mr C had used anywhere and only became aware of the alleged rape in 2003 when he was living with the plaintiff and her husband. Mr F stated that he could recall some sentences in the conversation with Mr C and [confidential] . Mr F confirmed that he had had conversations with the defendant but believed it was after the police investigation. He agreed that he spoke to the defendant to obtain his version of what had occurred. He said the defendant confirmed that he had had “ sex ” with his sister : T227.23 . He also agreed that he had a conversation with his mother about what had occurred soon after Mr C had alleged that the plaintiff had been raped. He could not recall how many conversations he had had with his mother on the issue but said that he had had no more than three conversations with the defendant. [Confidential] . He also stated that subsequent t o 2002-2003 he had not been taking medication for anything. I found Mr F to be a convincing witness. I formed the firm impression that he was giving his evidence honestly and carefully. He made concessions where appropriate. [Confidential] . To the extent there is a difference between Mr F and Mr C on this issue, I clearly prefer the evidence of Mr F . He was clear, precise and convincing on the issue. He also did not appear to have any reason to fabricate the conversation. He had previously been on close terms with Mr C . Oral evidence of the defendant [Mr B] Examination in chief The defendant stated that he was born in June 195x and was thus nearly xx at the time of the final hearing. He said he first became acquainted with the J family when he was 14 or 15. He said that S [plaintiff ’ s elder brother] attended his school [confidential] and he got to know the whole of the J family in due course. He stated that he came to know the plaintiff due to her involvement in the L [sporting] community. He stated that in 1970 to 1971 he undertook [sporting] training three or four times per week and different people attended [sporting] training at different times. Mr B confirmed that at some stage his relationship with the plaintiff became more than friendship. He recounted an occasion where the plaintiff attended dinner at his house with his brother-in-law, Mr N . He said he went to check on his infant son in a room and the plaintiff followed him and they began talking. He conceded that he initiated kissing with the plaintiff despite being married at the time. He stated that after the kissing became passionate he pulled away as he was afraid that either his wife or brother-in-law may see them : T232.38 . The defendant gave evidence that he was married in December 197 x and his son was born in January 197 x . He said he married at the age of xx . He stated that his wife was a nurse at K Hospital and undertook the same shift which commenced at about lunchtime and continued until 10 or 11pm at night. Mr B stated that after about two to three months after the kissing occasion at his house the plaintiff started arriving unannounced at his house in the late afternoon when his wife was not there . A relationship further developed. He said initially it was only friendship but then became more passionate with kissing and cuddling. He said that the plaintiff had said no to him in relation to sex: T233.39-T234.14. Mr B stated that the plaintiff had come around to his house at least on 10 or more occasion s or 12 occasion s: T234.26. The defendant rejected that the incident occurred recounted by the plaintiff after they attended the swimming pool in K . Similarly, the defendant rejected that the incident had occurred which was recounted by the plaintiff as having happened in her parents ’ bedroom when she was about 14. The defendant then gave his version of the night of the alleged sexual assault. He said he went around to the plaintiff's house in his car as he had always planned to move to Sydney and had organised to travel there. He said he went around to the plaintiff to tell her that he was leaving for Sydney. Despite the contents of paragraph 4 of the Defence where it is pleaded that the defendant telephoned the plaintiff and arranged with her for him to attend the plaintiff's house and go for a drive, the defendant gave evidence that he could not recall telling her that he was coming around. Later in cross-examination , the defendant indicated that the first he heard that the Js did not have a telephone at the time was when counsel for the plaintiff stated that in court. Mr B indicated that at that time he had one car, a white 1972 X which he had shortly before purchased new and which had bucket seats. He said that his house was about 3 to 4km from the plaintiff's family house and his wife at that time was working as a nurse at K Hospital. He could not recall what he was wearing on the night in question. Mr B stated that he parked his car out the front of the plaintiff's house in the street and went into the house. He said he could not recall knocking on the front door and had been there hundreds of times. He recall ed talking with the plaintiff in the family lounge room but d id not recall sitting down but said that he may have. Mr B did not recall what the plaintiff was wearing on the evening in question. The defendant said that he asked the plaintiff to come for a drive with him as he intended to tell her that he was moving to Sydney. He stated that they walked out the front of the house and got into his car with the plaintiff sitting in the passenger seat. He denied kissing or touching the plaintiff in doing so. Mr B stated that he then drove the car to the car park at the K Hospital. He said he was often at the hospital as his wife worked there and he picked her up and it was well lit. He initially estimated that it took between 10 and 15 minutes to drive to the hospital car park. He stated that it was between 8 and 8:30 pm when he picked the plaintiff up and it was dark at the time : T238.16 . He said he parked his car with the nose into the gutter. He could not recall other cars being present in the car park but believe d that there were no other cars and it was not busy. Mr B stated that he then talked with the plaintiff for a period of about half an hour or more and during that time they kissed and cuddled. He then said he got out, walked around to the passenger side of the car, opened the door and pulled the plaintiff's legs around and removed her underwear using both his hands. Significantly, he said that the plaintiff said nothing whilst he did this : T239.37 . He said he la y on top of the plaintiff and penetrated her. He then said that the plaintiff immediately pushed him off with both her hands and said “ no ” and he got straight off her and got out of the car. He said that the plaintiff then got out and commented that she had blood running down her leg. The defendant said he went to the boot of the car and got a blanket and gave it to her to wipe her leg. At this time , he was standing next to her. He believed that the plaintiff was wearing a dress and the dress was down. He said the plaintiff wiped her leg and then gave the blanket back to him. He noticed blood on the seat of the car which was a vinyl seat and he wiped it off with the blanket which he placed in the boot. He then said that he and the plaintiff got back in the car, that she was crying and he felt in shock as although he was married he was not experienced. He said he had never had an experience previously like that. The defendant said he assumed that the plaintiff wanted to go home and he drove her home and dropped her off near the house next door as he did not want people to see him there as he was married. He said when he dropped the plaintiff off , she was still crying : T242.27 . T he defendant said that he did not see blood on the plaintiff's clothes after the incident including on her dress. He said he could not recall the date or month of the incident. Mr B said that he moved to Sydney in September or October 197 x . P rior to moving to Sydney , he said he attended a farewell given for him at the house of the plaintiff's uncle. He said he saw the plaintiff at the farewell and he believe d that he spoke to her but he was not sure : T243.41 . He said the plaintiff did not mention the incident to him at the farewell. The defendant gave evidence that he met the plaintiff on another occasion in Sydney in xxx Road in Y . This significant meeting was also referred to in the plaintiff ’ s evidence. The defendant said he believed he had been to a chiropractor in Y and met the plaintiff as she was also walking down xx Road. He asked the plaintiff whether she wanted a lift and she said yes. He said his car was parked in the street and they walked to the car. This was the same X car that he had been driving on the night of the incident. He denied mentioning anything to the plaintiff about buses : T244.34 . He said the plaintiff got in the car and he was driving her home and stopped near a park to talk . He said he attempted to kiss the plaintiff and she said words to the effect “ N o, I don't want to do that anymore ” : T244.37. The defendant said that he said “ okay, that's fine ” . He said that at the time he was under the impression that the plaintiff had followed him down to Sydney : T244.42. He said he was not sure whether they talked anymore or he just drove her home. He stated that she was living at that time in Y : T245.9 . A ccordingly, t he defendant picked the plaintiff up in Y and took her to the home she was staying at also in Y : T245.12. The defendant said that he was living either at Lakemba or Oatley at that time. Mr B stated that the first time he saw the plaintiff with her current husband was at a barbecue at Easter in K during a L [sporting event] . He said he could not remember the year. He said just as he was leaving the barbecue the plaintiff and her husband pulled up in the car and the plaintiff rolled the window down of the car and introduced him to her husband. He said that the plaintiff and her husband then went into the barbecue and he went home. The defendant gave evidence that at a L [sporting event] at K , Mr C walked past him and said words to the effect “ you should be in gao l you bastard ” : T246.40 . The defendant said he was there with his brother at the time and he said nothing to Mr C . The defendant said that the first time he was told by the plaintiff that she was alleging that he had sexually assaulted her was when she rang him from the police station. He stated that the plaintiff had never in the previous 44 years since the incident ever contacted him about the alleged sexual assault: T24 7.8. The defendant gave evidence that Mr C had telephoned him on at least six occasion s whilst he was living at BB in Sydney. During these calls , Mr C accused him of raping his wife , the plaintiff. The defendant said that he denied the allegation and tried to tell Mr C that they had had “ an affair ” but he would n o t accept that: T247.38-.48. The telephone contacts , Mr B believed , were in the period from before 1990 until 1995-1996: T248.4. He then said that the phone calls ceased. In relation to the alleged sexual assault, the defendant stated that immediately before he penetrated the plaintiff she said nothing which indicated that she was not consenting: T248.44. Cross-examination Mr B was extensively cross-examined by counsel for the plaintiff in relation to his evidence as to the circumstances of the alleged assault . The first area cross-examined on was the defendant's evidence that he drove the plaintiff and parked in the car park at the K Hospital where his wife worked. T he defendant was cross-examined in effect to suggest that it was highly unlikely that he would drive the plaintiff to the car park of the location where his wife worked and then attempt to have sexual intercourse with her in a well-lit car park nearby . At that time , the defendant was married and had been married for less than xx years: T249.36. Whilst the defendant agreed that he opened the door of the car and proceeded to engage in a sexual act with the plaintiff outside the hospital , he said the reason for going there did not involve the intention of having sex but to tell her something: T250.9. Mr B conceded that his Defence was incorrect, as indicated above, that he telephoned the plaintiff before coming to her house but denied that he lied. He said he assumed that he telephoned beforehand. He denied that his account of the circumstances leading to the sexual act was “ simply wrong ” : T252.41. Mr B said the car park area where he parked was not near the front door of the hospital and “ very rarely does anyone come out ” : T252.43-T253.1. He also noted that his wife did not leave the hospital that way when he picked her up by car. Mr B denied that during the incident that he pushed the plaintiff down but he accepted that he penetrated the plaintiff : T254.3-.13. He denied that he pushed the plaintiff down to the seat. He also said he did not recall her saying “ what are you doing? ” : T254.38. Mr B accepted that there were a lot of conversations which he did not recall. He also accepted that the plaintiff may well have sa id to him “ what are you doing? ” However , he denied that the plaintiff said to him the word “ no ” or “ don't do it ” or words to that effect: T255.10-.27. Mr B was then cross-examined about his knowledge of the plaintiff's age. Initially , Mr B said that he did not know at the time of the alleged assault how old the plaintiff was (T256.29) . He then accepted that he did not know ( T256.32 ) and did not think about it: T256.37. He then claimed that he knew that the plaintiff was over 16: T256.43-.47 and T257.15. He denied that he was making up his evidence about her age and said “ just don't know ” : T257.20. Mr B was then cross-examined about his evidence that the plaintiff had been coming around to his house in the afternoon for a couple of months. He denied that the plaintiff never came around to his house. It was put to him that his evidence of the plaintiff coming around was inconsistent with her relationship with Mr N , his brother-in-law, in circumstances where he had invited Mr N and the plaintiff around to his house for dinner. Mr B also denied the alleged incidents after the plaintiff left the pool, him asking her to a party in the neighbouring street and the alleged incident in the parents ’ bedroom. He accepted that he could have been in the plaintiff's parents ’ bedroom whilst he was in the house at some stage. He said he could not recall seeing the plaintiff whilst he h ad been drinking. In the end , Mr B accepted that it could have been the case that he went to the J house after he had been drinking but denied that he went there to see the plaintiff: T262.1-.39. Mr B was then cross-examined in relation to the alleged sexual assault. He agreed that he asked the plaintiff to go for a drive as he wanted to tell her something and would not tell her in the house. He denied holding onto the plaintiff ’ s arm when they came outside: T263.20. The defendant said that the plaintiff got in the car “ on her own free will ” : T263.35. He said he could not recall what she was wearing. In relation to when he was lying on top of the plaintiff , he accepted that the plaintiff's head would have been up against the door on the driver ’ s side of the car but he denied assisting her in moving into that position . T he defendant said that she could have moved herself: T266.3. He denied recalling whether she moved. When he drove the plaintiff home , he stated that he did not drop her at the corner but near the corner as he did not want anyone to see that he was out with her: T266.25. He accepted that he believed that going ou t with her was something which he should not be doing: T266.32. At this stage , he gave evidence that he did not kn ow whether she was over 16: T26 6.38. He stated that he knew the plaintiff “ was around 16 ” : T267.11. The defendant was cross-examined in relation to his hours of work, his days of work, his [sporting] training and various distances within K . [Confidential] . It would take three to four minutes to drive from the plaintiff's house to the hospital car park which was different to his evidence in chief of 10-15 minutes: T238.1. He agreed he was “ guessing ” when he gave that evidence and a much shorter period of three to four minutes was more accurate: T272.49. The defendant was then cross-examined in relation to his evidence in chief that he did not want anyone to see that he was out with the plaintiff on the night in question because he was married: T242.21. Despite this, he drove her to the hospital car park which was well lit and where his wife was working. The defendant denied that he did not drive the plaintiff to the hospital car park on the relevant night but drove near the silo area closer to the plaintiff's home. The defendant said that in 1972 , K was a very quiet town and at that time of the night the town was practically deserted. He said his car was commonly seen near the hospital and if anyone did see the car it would not have raised any concern. He also confirmed that he did not drive there to have sex with the plaintiff but it was “ something that happened ” : T275.6-.11. The defendant said that nobody was around the whole time he was with the plaintiff in the car park. The defendant was then cross-examined in relation to his evidence that the plaintiff started coming to his house in the afternoon unannounced before the incident: T233.15-.43. He said that a relationship developed. It was put to the defendant that this did not occur as he was in training. He said he did not train every day. The defendant was then further cross-examined about the incident itself. He said that he could not recall why he did not tell the plaintiff whilst she was in her house about him leaving for Sydney. He said she was the only person there but, in answer to the court, said he did not recall knowing the plaintiff would be alone when he went to her house : T289.25 . He denied that he drove to the plaintiff's house to initiate sex. However, the defendant confirmed that his Defence was incorrect that he stayed in the driver ’ s seat and the plaintiff came to his car. The plaintiff's version of when the defendant first came to the house on the night of the alleged sexual assault was then put to the defendant. He appeared to have a poor recollection of the conversation in the house but accepted that the plaintiff's version may in substance be correct. However, he denied that he was holding the plaintiff's arm or pulling on her arm but accepted that he may have been holding her hand. He said he wanted to talk to the plaintiff about him going to Sydney as they were having a relationship. The defendant said that when he got in the car he did not know where he was going to drive to and did not want to drive around the town but decided to go to the hospital car park as it was not uncommon to see his car there. The defendant did not recall any other cars being in the car park. In relation to the incident itself, the defendant denied pushing the plaintiff down by the shoulders. He also denied that the plaintiff said words the effect “ wh at are you doing? Stop i t ” . The defendant denied holding both of the plaintiff ’ s hands above her head with his right hand and pulling down her underwear with his left hand. He also denied the plaintiff requesting him to stop and that she asserted that she was a virgin. The defendant said that it did not occur that way and , if it h ad , he would have recalled it. H e also denied forcing the plaintiff's legs apart and ripping or tearing her underwear . H e could not recall what he did with the plaintiff's underwear after he took it off. He said he knew the underwear was not ripped as he did not remove it with force: T284.21-T286.28. The defendant said he did not have a great deal of recollection in relation to the night but was trying to remember what he could: T286.30-.36. The defendant said he walked to the boot as the plaintiff told him she had blood running down her leg and she wanted to wipe her leg . The defendant was then asked questions in relation to the event in 197x when he offered and gave the plaintiff a lift at xxx Road in Y . He denied telling the plaintiff “ there were no buses ” . He also disputed that it occurred at about 7:30pm as he said it was still daylight at that time. He said he could not recall the month or time of the year and based his assessment that it was not as late as 7.30pm on the fact it was still daylight. The defendant was then asked questions about why he picked the plaintiff up from outside her house but dropped her off at an area not outside her house closer to the corner of the street. The defendant said he did this as he “ figured her mother would be home ” : T290.15. He confirmed that he had no idea whether the plaintiff's mother would be at home when he arrived: T290.24. The defendant denied the plaintiff did not come to his house on numerous occasion s before the incident and they kissed and cuddled. He confirmed that apart from kissing he had had no sex with the plaintiff prior to the night of the incident and that each time he had approached her for sex she had refused. He confirmed that at the time of the incident he probably did not know whether the plaintiff was 15 or 16: T292.14. Oral evidence of Mrs D Oral evidence was given in the defendant ’ s case by Mrs D , the mother of the plaintiff. She gave evidence that she was born in 193 x and was thus xx when she gave her evidence at the hearing . Despite her age, she was attentive to the questions she was asked and appeared to answer them carefully and succinctly. Mrs D gave evidence that in 1972 she was living in her house in xxx Street in K and that all members of her family were residing in the house except her eldest son S and her youngest son F who was not yet born. Mrs D stated that in 1972 she had a good friend , Ms E . She said that she saw Ms E every Wednesday night and that they had previously worked together. If Ms E was working an early shift she would arrive at about 7pm for dinner and if she was working a late shift she would arrive for a cup of tea at about 10:10pm. Mrs D said that only on one occasion did Ms E arrive when she was out: T29 8 .12. That was on a Wednesday. Mrs D gave evidence that she had a very close relationship with the plaintiff in 1972: T29 8 . 1 8. Mrs D said t hat at that time the plaintiff as a 16-year-old did not have many clothes with very few “ good ” clothes . She stated that the plaintiff had “ a couple of good outfits ” . She asserted that in 1972 the plaintiff said that her favourite dress was a navy blue dress with white collar and cuffs and flowers on it. She said she did not recall the plaintiff having a pink dress as a 16-year-old in 1972. She said the plaintiff had a pink outfit which she wore when she was 11 or 12. Mrs D said that she had rules about the plaintiff going out. She had to ask permission to go out and if she went out while Mrs D was at work or not at home she had to leave a note so Mrs D knew where she was at all times. She said the plaintiff usually did that: T298.46. Mrs D gave evidence that there was an evening in 1972 where she was worr ied where the plaintiff was: T2 98.50. She said she had to deliver a message to her cousin “ [V] ” who lived a few doors up from her. She said she knew that Ms E was coming so she said to her two daughters, the plaintiff and T , to tell Ms E that she would n o t be long as she had to give V a message. W hen she left , the plaintiff and her other daughter T were in the house and the plaintiff was wearing “ every day clothes ” : T299.22. She said she was away from the house for “ perhaps a half an hour ” : T 2 99.25. Mrs D gave evidence that when she returned to her house, Ms E was seated at the kitchen table but her daughters were not there. She stated that Ms E said that she had not seen the plaintiff. Mrs D said she went to the bedroom and saw that her daughter T was in bed asleep but could not see the plaintiff and looked around the house and saw that there was no note. She said that she was “ quite disturbed ” because the plaintiff did not normally go out an d that “ nobody went out unless they left a note or asked permission ” : T299.43. In due course , the plaintiff returned to the family home and she noted that the plaintiff was “ nicely groomed in her favourite dress ” : T300.3. She asked where the plaintiff had been and the plaintiff replied “ I've been out driving with “ Z ” [nickname of Mr B] ” and that he “ just wanted to talk ” . Mrs D said that she said to the plaintiff: “ W ell, you'll no longer go driving with [ Z ] . He is now a married man ” : T300.3. Mrs D said that the plaintiff then made Ms E a cup of coffee and herself a cup of tea and the plaintiff made a Milo . The plaintiff then announced that she was having a shower and going to bed and left the kitchen. Mrs D said that the dress the plaintiff was wearing was dark navy blue with white flowers with a yellow centre and with white collar and cuffs. She said the plaintif f looked “ perfectly groomed ” : T 300.20 . Mrs D gave evidence that the first time the alleged sexual assault was raised with her was in Easter 1976 during a L [sporting event] . She said that the plaintiff and her husband came to the kitchen of her home . Ms E was also present. She gave evidence that the plaintiff's husband claimed that the plaintiff had been raped and that this occurred “ the night you went to [ V 's ] ” . Mrs D said that she thought back to that night and recalled that she was concerned because the plaintiff was not in the house when she came home and so the recollection “ came vividly back to [her] ” : T300.47. Mrs D said that the plaintiff shook her head when Mr C said that he wanted her to wake the defendant ’ s mother up to tell her of the incident . Mrs D said that she said that she would discuss the matter the next day . The following morning she asked the plaintiff if she wanted to talk about it now but the plaintiff said “ just leave it ” and she n ever heard any more about it: T 301.6. Mrs D then gave evidence about a discussion in 2014 when s he was at the home of her son, Mr F , when the plaintiff's husband arrived. She said the plaintiff's husband started to cry and there was a discussion with the plaintiff's husband saying that he thought he was having “ a nervous breakdown because of the alleged assault ” : T302.49 and following . Mrs D claimed that the plaintiff's husband , Mr C , said to her that he went to bed every night and “ I seethe ” : T303.6. [ C onfidential] . Mrs D claimed that she informed Mr C that the plaintiff “ willingly went driving with [the defendant] ” ( T303.28 ) but claimed that the plaintiff had never mentioned any sexual conduct with the defendant with her: T303.46. Mrs D also claimed that the dress that the plaintiff was wearing on the night she returned home was worn by her, Mrs D , when she went to a court appearance : T304.7 . Mrs D was cross-examined in relation to her recollections both of the night of the alleged incident and of her conversation with Mr C . She said she first became aware of the allegation of the sexual assault at Easter 1976: T304.21. Mrs D said that the defendant came to her house regularly as he was a friend of the whole of the family and was involved in [sporting] as was the family. Mrs D denied that in the 12 months after she was told about the alleged incident that she had any discussion with the defendant about it (T305.16). S he stated the defendant was invited to parties and weddings during that period as he was “ close to all my family ” : T305.19. Mrs D also denied speaking to the defendant in relation to the allegations after 1976 until 20 1 4 when she did speak with him: T305.35. Mrs D said she spoke to the solicitors for the defendant and police at about this time and told them of her recollections: T305.44- T306.16 . Mrs D agreed that when she saw the defendant ’ s solicitors that t he solicitor asked her specific questions about her knowledge of what occurred in 1972 and 1976 including questions in relation to the plaintiff ’ s dress. She said she did not recall the questions that were asked of her. In relation to 1972, Mrs D said that she did not recall a specific date being mentioned in relation to 1972. She understood that the evening of the alleged incident was the night that she went to the person known as “ [ V ] ” because this was what Mr C said to her in Easter 1976: T307.8. Mrs D said that she left her house to go to V 's at approximately 10pm: T306.19. This was different to the evidence of both the plaintiff and the defendant that he arrived at the plaintiff's house at around 8 or 8:30pm. Mrs D denied that she left the house before 10pm: T307.25. She also denied that she was at home when the defendant arrived and said that Mr B did not show up when she was home between 6 and 10pm. She also said that she did not see Mr B ’ s car at the front of her house. Mrs D claimed that she was at V 's for “ perhaps half an hour ” coming back at about 10:30pm: T308.25. At that time , Ms E was there. Mrs D said that she did not recall the plaintiff having a pink dress in the early 1970s but in answer to a question from the court , confirmed that the plaintiff did her own washing in 1972: T310.7. Mrs D said that she was not aware of the plaintiff receiving “ hand-me-downs ” from friends or acquaintances at that time: T310.26. In cross-examination , Mrs D denied the plaintiff's account of the discussion in the kitchen relating to the sexual assault when her friend Ms E was present. Mrs D said that the plaintiff never spoke to her relating to the incident when M r C was not there: T311.15. Mrs D described as “ totally incorrect ” the plaintiff's version of the Easter 1976 alleged conversation when she told Mrs D that the defendant had assaulted her. She said that she had never had a conversation with the plaintiff about the defendant: T313.45. Mrs D added that if the defendant had shown up between 8 to 8.30pm on the night of the incident at her house she would have told the plaintiff that she could not go out because the defendant was married: T315.9. Mrs D denied that when she came home , the plaintiff was at home. She denied that when she came home , the plaintiff was wearing pyjamas but said she was wearing a navy blue dress: T315.34. She also denied that the plaintiff had wet hair with a towel around it. Mrs D said she did not remember the exact time the plaintiff arrived home but said it would have been “ probably around 11ish ” : T315.42. Mrs D denied that the conversation which s he had was initially with the plaintiff in Easter 1976 and then with the plaintiff's husband: T316.23-.36. Mrs D was then asked about the alleged conversation at F 's place in 2014. She denied the suggestion that a conversation between her and Mr C as she related in her evidence in chief did not occur. She said she did not make a note of the conversation. Mrs D accepted that she had been to V 's place on other occasion s earlier than the night the plaintiff came home but not at 10 o'clock to deliver a message: T318.26. S he said that she usually did not visit V in the evening but visited during the daytime unless there was a function when “ W e'd all be together at night ” : T318.41. Mrs D denied that she was mistaken in her account of the relevant conversations with the plaintiff and Mr C and also denied that she was mistaken as to the date when the plaintiff went out with the defendant in his car: T319.1-.7. Statement of Ms E T here was tendered by the defendant, a statement of Ms E dated 14 June 2019 which became Exhibit 4 in the proceedings. Ms E gave the background to her friendship w ith Mrs D . S he stated in paragraph 4 of the statement that she knew the plaintiff well from when she was in first year at high school. Ms E stated that on a date she could not recall, she remembered being at Mrs D 's house on a Wednesday night and the door was left open for her to come into the home. S he said she arrived at the house and later Mrs D arrived and they had refreshments. Ms E states that she recalled the plaintiff coming home after sh e and Mrs D had been home for some time but could not recall the date and time. Ms E states that she recalled Mrs D asking the plaintiff where she had been , with the plaintiff replying “ I ha ve been out with [ Z ] , he just dropped me home ” . M s E said she understood that “ [ Z ] ” was t he nickname for the defendant. S he said she did not say anything. Ms E said that she noted that the plaintiff appeared to be “ her normal self ” and her hair was tidy and the clothing she wore “ appeared to be normal ” and nothing appeared to be out of place including as to the plaintiff's clothing. Ms E said that after this , the plaintiff wen t to her room or the bathroom. S he said she could not recall whether the plaintiff appeared again. Ms E said that at the time , if she was undertaking the evening shift she would have arrived between 10 and 10:30pm and sometime she and Mrs D stayed up and talked to 2 am in the morning. Ms E was not called to give oral evidence and to be cross-examined because she had a serious health condition which was established by medical evidence . The plaintiff’s medicolegal reports The plaintiff tendered as part of Exhibit A two medicolegal reports from psychiatrist , Dr B . In the first report dated 29 January 2019 following a consultation on 22 January 2019, a history provided to Dr B was set out . The history provided by the plaintiff of the incident as set out was , in my view, generally consistent with her evidence in chief. See also the letter of instructions at Exhibit A page 36A. The plaintiff told Dr B that when she told her mother in 1976 in relation to the alleged assault her mother “ did not believe her ” . In the history set out , the plaintiff referred to her various medical consultations and her different experiences with her extended family who did not apparently , according to the plaintiff, provide her with any support. The details of the plaintiff ’ s prescription s for drugs for her condition are referred to. It is indicated in the report that the plaintiff told Dr B that with treatment her mood had improved and she was feeling better as at January 2019. The plaintiff is recorded as saying that at that time , she was working full-time with her husband and she and her husband were preparing for retirement. On examination , Dr B found the plaintiff was anxious and talkative. The history of other medical examinations and consultations was noted. It was also noted that the plaintiff had been diagnosed by other medical practitioners with PTSD, anxiety and depression. Recurring thoughts and nightmares of the incident and ongoing anxiety were noted. Dr B diagnosed PTSD related to the alleged assault. An opinion was expressed that the symptoms were permanent although the plaintiff had shown resilience and did not appear to have any limitations with regards to previous domestic and recreational activities. A view was expressed that parental and familial denial of abuse and assault was common as was the delayed reporting of abuse. An opinion was expressed by the doctor that the reasons the plaintiff may have delayed informing others of the alleged abuse included the plaintiff ’ s feelings of shame, worthlessness and the belief that she was “ damaged ” and could never marry. The opinion was expressed by Dr B that the plaintiff did not appear to have been partially or totally incapacitated for employment as a result of the assault and the symptoms did not appear to provide a barrier to employment. The view was expressed by the doctor that in relation to future needs , the plaintiff would need to continue with counselling from her psychologist and to be reviewed by the psychiatrist. P rescribed medication was also recommended and treatment would be needed “ for at least the next two years ” . The prognosis for the plaintiff given her resilience was said to be good. In a further report dated 6 April 2021 , following a video telehealth conference which occurred on 23 March 2021, Dr B recorded an improvement in the plaintiff ’ s mood and a reduction in her alcohol intake and a cessation of insomnia. However, recurrent thoughts and nightmares of the incident and anxiety related to it in the plaintiff had not resolved. The plaintiff is recorded as being angry with her mother for not believing her. The plaintiff asserted some anxiety together with dizziness and blackouts due to stress. Suicidal ideation was mentioned. The plaintiff is recorded as continuing to work fulltime in her husband ’ s business but was finding it hard due to anxiety. Dr B noted that the plaintiff was consistent in her presentation. A diagnosis of PTSD and a generalised anxiety disorder was made. Flashbacks and nightmares of the incident continued. The plaintiff was also noted as being resilient particularly in her work and that she remained close to her husband. The medication taken was referred to as making the plaintiff drowsy. The plaintiff ’ s ostracism from her wider family was noted. Dr B indicated that the plaintiff would need to continue with antidepressant medication for a further six months following the court hearing. The cost of medical consultations and medication was referred to. Ms M ’s notes Before the court as part of Exhibit A were clinical notes of psychologist Ms M . Ms M had consultations with the plaintiff ’ s daughter G in early 2005. There are references in the notes to the plaintiff disclosing to Ms M that the plaintiff was “ raped ” as an adolescent. The plaintiff had consultations with Ms M in February 2005 where she disclosed an alleged sexual assault and that she was very upset as to it and still had several relationship and emotional issues because of the assault. No great detail is provided in the notes as to what had occurred in the alleged assault . Treating reports and referrals Also in evidence as part of Exhibit A were various referrals by the plaintiff ’ s general practitioner to Ms J , psychologist, in 2014. The referral related to the history that the plaintiff was allegedly “ raped as a 16yo ” and the plaintiff feeling “ worthless ” and that her family did not support her. It was noted that the “ perpetrator was like part of the family ” : Exhibit A page 64. A referral dated 22 June 2015 indicated that the plaintiff “ is in tears every day over the whole affair … is still hurt about her family ’ s continuing relationship with the perpetrator … worsening depression ” : Exhibi t A page 66. A referral dated 5 September 2018 to psychiatrist Dr K by the plaintiff ’ s general practitioner Dr S , referred to the plaintiff having “ regular feelings of sadness ” : Exhibit A page 69. There were also in evidence a number of reports of Dr D , psychologist, prepared in 2019-202 1 in relation to the plaintiff where the alleged assault is referred to. Although the reference to the assault is more general in these documents it is generally consistent with the plaintiff ’ s evidence including that she was cut off from her own mother and siblings who remain in contact with the defendant. Dr D diagnosed a major depressive disorder which was recurrent and moderate and a generalised anxiety disorder as well as PTSD. It is clear from the reports that the plaintiff had a number of consultations with Dr D in 2019-2021. Cost of the plaintiff’s medical treatment There was in evidence in Exhibit A substantial receipts and other documents relating to the cost of the plaintiff ’ s various medical consultations. Submissions of the parties The plaintiff, in summary, made the following submissions in her oral and written submissions: The onus of proof rested with the plaintiff and s 140 of the Evidence Act is relevant. Proof of the allegations by the plaintiff must be to the reasonable satisfaction of the court: paragraphs 6-8. On the balance of probabilities the incident in question did occur in accordance with the plaintiff ’ s evidence in September 1972 as the defendant clearly indicated he was in Sydney in October/November 1972: paragraph 9ii); A number of aspects of the defendant ’ s evidence were inconsistent with his pleaded Defence. This is relevant to the reliability of the defendant ’ s account: paragraph 9iii)-iv); There is no satisfactory evidence of consent by the plaintiff. Similarly, there is no satisfactory evidence that the plaintiff attended the defendant ’ s property on no less than 12-15 occasion s prior to the incident where the defendant and the plaintiff participated in sexual activity: paragraph 9vi) -viii) ; The relevant offence at the time was the offence of rape under s 63 of the Crimes Act 1900 (NSW). In issue was whether the plaintiff consented to the agreed sexual activity which involved penile/vaginal penetration: paragraphs 10-16 ; Applying Gorman v Mc Knight [2020] NSWCA 20, in the context of consent as a defence to a claim in tort, it is the presence or absence of consent that matters not the belief of the defendant as to consent: paragraph 17 . This requires an analysis of the evidence of the plaintiff in any given case and an assessment of his or her conduct at the time in question, including his or her age and experience ; In relation to consent for tort purposes, a position of relative weakness can, in some circumstances, interfere with the freedom of the person ’ s will and the ability to consent. This is particularly the case if the defendant ’ s conduct is punishable as a crime. On all the evidence, consent was not given by the plaintiff nor could it be implied to have been given : paragraphs 18-23 ; The defendant ’ s evidence had numerous problems as set out in the plaintiff ’ s written submissions in paragraph 2 4 and following. His evidence was inconsistent with his own Defence yet although becoming aware that his Defence was incorrect in a number of respects , he did not correct it prior to giving evidence. The defendant could not explain why he needed to take the plaintiff for a drive to tell her that he was moving to Sydney rather than telling her at her house. The defendant says that he did not wish to be seen with the plaintiff because he was married but his conduct in attending the plaintiff ’ s house and driving to the hospital carpark on his evidence was inconsistent with that; The defendant pleads that the plaintiff consented. However, his evidence relating to the complained of conduct and the defendant ’ s recollection of the incident was poor. His version given in evidence appeared to be reconstructed. The defendant ’ s evidence that the plaintiff attended his premises at about 5pm on a number of days should be rejected. It was inconsistent with the defendant ’ s evidence about his work and sport training. The defendant has not made out consent : paragraphs 41-52 ; There are a number of concerning matters about the defendant ’ s recollection. His evidence is either so internally inconsistent or otherwise reconstructed that the evidence ought not be accepted : paragraphs 53-54 ; The plaintiff ’ s evidence was clear and precise as to what occurred and she was an impressive witness. The plaintiff ’ s evidence as to the location of the assault was far more likely to be correct than the defendant ’ s description : paragraph 55 ; Mrs D was clearly wrong in her evidence. Her timing of attending her relative ’ s house was inconsistent with the evidence of the plaintiff and the defendant. Mrs D was recalling an incorrect date as on the times alleged by the plaintiff and the defendant , Mrs D would have seen the defendant arrive, seen the plaintiff leave and seen the plaintiff come home : paragraphs 56-59 . If the plaintiff and the defendant are correct about the timing then Mrs D ’ s evidence must be wrong ; The willingness of the plaintiff to accept the lift from the defendant in Sydney in early 1973 went to damages not to liability. The plaintiff ’ s reason for accepting the lift was persuasive: oral submissions; Detailed submissions were made about damages. It was alleged that a very significant amount of $250,000-$300,000 should be allowed for general damages. In addition, an amount for past and future economic loss as a diminution in earning capacity in the light of the extensive period should be allowed in the sum of $150,000-$200,000. An award of aggravated damages was also appropriate. The defendant, in summary, made the following submissions in his oral and written submissions: The pleadings and the plaintiff ’ s evidence make clear that the case against the defendant is one of sexual assault. Thus, in general terms, the provisions of the CLA do not apply by operation of s 3B(1)(a): written submissions paragraph 5; What is alleged by the plaintiff in the present case against the defendant would constitute the crime of rape as at July to August 1972. Under the criminal law , for the plaintiff to establish that the conduct of the defendant was a sexual assault in 1972, the plaintiff must negative any mistake made by the defendant as to the consent of the complainant irrespective of whether the mistake was, or was not, based on reasonable grounds : submissions paragraph 10 ; The nature of an intentional sexual assault under the civil law falls within s 3B(1)(a) of the CLA. In a civil assault case , the onus on the plaintiff is to prove the absence of consent , as the lack of consent is the “ very gist of assault and battery ” . This approach “ preserves the comity between the civil and criminal law at the time ” : submissions paragraph 13 ; There was a previous relationship between the defendant and the plaintiff involving intimate activity confined to kissing. There was a “ developing sexual relationship ” between the parties : written submissions paragraphs 16-19; The account given by the plaintiff of the alleged incident in the parents ’ bedroom was embellished by the plaintiff and is unreliable : written submissions paragraphs 22-28; The plaintiff ’ s recollection of the evening of the alleged sexual assault has been established by extensive reconstruction. The plaintiff agreed and consented to get into the defendant ’ s car before proceeding with him; The defendant ’ s version of driving to the K Hospital carpark should be preferred as he was “ hiding in plain sight ” and the carpark was deserted. He also intended only to talk to the plaintiff : written submissions paragraphs 41-43; For the plaintiff to succeed , she will have to establish that on the balance of probabilities, the defendant did not believe that the plaintiff was consenting: written submissions paragraph 49. Importantly, the plaintiff agreed that the occasion of intercourse was the only time that she got in a car with the defendant in the latter half of 1972: submissions paragraph 53; The plaintiff ’ s evidence as to when she left and when she arrived home was understated. It is consistent with the plaintiff arriving home in accordance with the account of her mother and the evidence of Ms E ; The mother ’ s estimate of being out of the house for “ perhaps half an hour ” was an underestimate: written submissions paragraph 59; The mother ’ s evidence was persuasive in relation to her recollection of the evening, as the plaintiff concedes that she had only been out driving with the defendant on one occa sion in the latter half of 1972: written submissions paragraph 63; The mother ’ s account is corroborated by that of Ms E ; The subsequent conduct of the plaintiff shows that she did not make every effort to avoid the defendant including in Sydney . Reference was made to the various contact s in Sydney before Easter 1973 including spending a day with the defendant and his then wife, accepting a lift with the defendant alone and later inviting him to her wedding : submissions paragraphs 67-76 . It was submitted that the contemporaneous conduct from the plaintiff was the best guide as to whether the plaintiff had consented – she did not avoid the defendant soon after the incident as she would have if her version was correct: oral submissions ; The mother ’ s recollection of the conversation at Easter 1976 should be preferred and was persuasive; The discussion s on many occa sions between the plaintiff and her husband as to the incident suggested strongly reconstruction under the emotional and physical pressure of recounting and re-enacting the events. Mr C ’ s evidence should be rejected; The evidence of Mr F should be preferred to that of Mr C . He was an impressive witness and had no reason to give inaccurate evidence. It was a conversation which would be difficult to forget and unlikely to be fabricated: submissions paragraphs 92-94. It is also consistent with the mother ’ s evidence: submissions paragraphs 95-96; There was a lack of recent complaint by the plaintiff . The defendant did not concede the sexual assault during the phone call from the plaintiff at the police station. It is very likely that there was reconstruction in relation to the event by the plaintiff: written submissions paragraphs 101-102; The plaintiff ’ s recollection is unreliable. The plaintiff ’ s evidence is not consistent with that of her husband ’ s. It is likely she has been subject to “ immense em otional pressure ” by her husband. Even if the plaintiff believes that a sexual assault occurred as stated, her version of events has likely been moulded and is not consistent with what actually occurred. The court should not feel a comfortable satisfaction that the defendant assaulted the plaintiff in any manner: submissions paragraphs 103-110; Careful consideration should be given to the various authorities relating to the unreliability in many cases of human memory of events occurring a long time ago; Submissions were made as to damages; The plaintiff ’ s claim should be dismissed. In reply, the plaintiff submitted , in summary , as follows: The plaintiff submitted that the CLA does not apply to the matter; The plaintiff had consistently rejected any sexual contact with the defendant; There was no prior sexual or intimate conduct between the plaintiff and the defendant; The defendant had difficulties recalling what the plaintiff said or did not say immediately prior to the alleged sexual assault: written submissions paragraphs 6-7; In relation to the swimming pool incident, the defendant did not recall the plaintiff being there: submissions paragraph 8; There was no consistency with Mrs D ’ s evidence and the timing on the night in question: submissions paragraph 10; The lack of belief in the defendant that the plaintiff was consenting was properly put to the defendant: submissions paragraphs 11-14 ; Ms E ’ s evidence should be taken into account but does not carry the same weight as it was not tested in cross-examination . Consideration I will proceed to consider the legal and factual issues in this difficult case. Credit and reliability Of central importance in this case is the credit and reliability of the main witnesses being , in particular, the plaintiff, her mother and the defendant. To a l esser extent, the credit and reliability of the plaintiff's husband and brother w ere also in issue. The defendant made detailed submissions in relation to the credit and reliability of the plaintiff and her husband . In the end, it was submitted that the plaintiff was not a reliable witness and had effectively reconstructed consensual sexual activity into a violent non-consensual sexual act. It was submitted that the court could not be satisfied that the plaintiff had established her case in relation to the alleged assault on the balance of probabilities having regard to the serious accusation s which were made. It was said that the plaintiff ’ s husband was obsessed with the incident and had suggested to the plaintiff that the defendant had sexually assaulted her and she had adopted this version of the incident under persistent questioning by him to explain her pre-marriage sexual activity . The plaintiff submitted that the defendant was a wholly unimpressive and unreliable witness who admitted having a poor recollection of the night in question and gave evidence which was inconsistent with the factual account pleaded in the Defence. In addition, it was submitted that the defendant ’ s account was inconsistent and implausible and clearly reconstructed . Further, it was submitted that Mrs D was mistaken about the night in question. The court had the advantage of seeing the various witnesses, particularly the plaintiff and the defendant , give oral evidence over an extensive period of time. Both the plaintiff and the defendant were closely cross-examined by counsel in relation to a significant number of matters including alleged discrepancies in their oral evidence and the events of the evening of the alleged sexual assault. In determining its factual findings in a particular matter, a court is not bound to accept any of the evidence which a particular witness attests to and similarly may accept part only of a particular witness’s evidence: Cubillo v Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1 at [118]-[123]; Danckert v Tonkin [2015] NSWSC 1570 at [152]. Accordingly, it does not follow from the fact that part of the evidence of a witness is rejected that other aspects must also be rejected and that is so even if it be found that the witness was lying: Sangha v Baxter [2009] NSWCA 78 at [155]-[156]; Croucher v Cachia [2016] NSWCA 132 at [129]. It is a particularly difficult task to make factual findings in a case such as the present where the alleged events in relation to which the witness gave evidence occurred a long time ago and there are no relevant contemporaneous documents to assist on the central issues . As stated, c oncerted attacks were made by counsel as to the reliability in particular of the plaintiff and the defendant. In relation to the witnesses, the plaintiff appeared to be a n honest witness. She appeared to give her evidence c arefully and with sincerity and made concessions where appropriate. I have no doubt that she considers the account she gave as to the alleged sexual assault to be true. I take into account her medical conditions in assessing her evidence. I found the plaintiff ’ s husband to be a less impressive witness. He changed his account in his evidence of what the plaintiff told him about the alleged assault : T205.35 . Overall, I found him not to have a good recollection about events in 1975-1976 . He appeared to have trouble on a number of occasion s in following questioning. It is clear to me that the plaintiff ’ s husband has become obsessive in relation to the 1972 event and seethes about it and ruminates about it frequently . He gave evidence that over the last 44 years he had discussed the incident hundreds of times with his wife: T188.8. The risk of reconstruction in both is therefore to be taken into account. This is particularly the case where the plaintiff provided details of her pre-marriage sexual experience and the incident to him in a number of conversations after their marriage . As stated above, I found Mr F to be a particularly impressive witness. I accept his evidence. [Confidential] . The defendant was heavily attacked by counsel for the plaintiff in his written and oral submissions. The defendant ’ s evidence was mixed. He accepted that aspects of the filed Defence were incorrect. He agreed he had not provided earlier instructions to change the Defence. He accepted that he did not have a g reat deal of recollection in relation to all aspec ts of the night of the incident: T286.33. He showed some hesitation and lack of recollection in his evidence as to what the plaintiff may have said to him including immediately before the act in question . He made concessions that conversations put to him which were said to have occurred at the plaintiff ’ s house in 1972 may have occurred. However, he clearly denied the allegation that his acts occurred with violence or against protestations by the plaintiff. There was nothing in his demeanour which indicated to me that he was lying on the central issues in dispute in the proceedings . I found Mrs D to be a careful and impressive witness. She made concessions where appropriate. There is no reason in the evidence why she should give false evidence concerning her memory or her conversations with the plaintiff and Mr C in 1972-76 and 2014. She said she was close to the plaintiff and I accept that evidence, certainly in the period up to 2015. Some aspects of her evidence raise issues for determination such as whether she is confused about the night in issue, what time she left for “ [ V ’ s ] ” house and the time the plaintiff came home. I consider Mrs D gave evidence which she considered to be true. Ms E ’ s statement must be taken into account. Its contents were less detailed than Mrs D ’ s evidence. The statement must be given less weight because her statement was not tested in cross-examination. She could not recall the date of the night in question. A s the majority of the High Court stated in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [31]: “ [31] Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.” In Briginshaw v Briginshaw (1938) 60 CLR 336 Dixon J stated at 361, in relation to the civil standard of proof, the following: “ The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found . I t cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. ” See also Watson v Foxman (1995) 49 NSWLR 315 at 319 and Perpetual Trustees Victoria Ltd v Cox [2014] NSWCA 328 at [107]. This warning is particularly relevant in relation to serious events said to have occurred nearly 50 years ago. The standard to be applied In the present case, v ery significant allegations are made against the defendant including of a serious criminal sexual assault. In Briginshaw , above, at pages 361 -363 , Dixon J stated: “ This mode of stating the rule for civil cases appears to acknowledge that the degree of satisfaction demanded may depend rather on the nature of the issue. … But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences. … This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil case may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues. … But, consistently with this opinion, weight is given to the presumption of innocence and ex actness of proof is expected.” In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; [1992] HCA 66 at [2], the majority of the High Court explained the principle in Briginshaw , as follows: “ 2. The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud ((1) See, e.g., Hocking v. Bell [1945] HCA 16; (1945) 71 CLR 430, at p 500; Rejfek v. McElroy [1965] HCA 46; (1965) 112 CLR 517, at pp 519-521). On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear ((2) Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336, at p 362; Helton v. Allen [1940] HCA 20; (1940) 63 CLR 691, at p 701; Hocking v. Bell (1944) 44 SR (N.S.W.) 468, at p 477 (affirmed in Hocking v. Bell (1945) 71 CLR, at pp 464, 500); Rejfek v. McElroy (1965) 112 CLR, at p 521; Wentworth v. Rogers (No.5) (1986) 6 NSWLR 534, at p 539 or cogent ((3) Rejfek v. McElroy (1965) 112 CLR, at p 521) or strict ((4) Jonesco v. Beard (1930) AC 298, at p 300; Briginshaw v. Briginshaw (1938) 60 CLR, at p 362; Helton v. Allen (1940) 63 CLR, at p 711; Hocking v. Bell (1944) 44 SR (N.S.W.), at p 478 (affirmed in Hocking v. Bell (1945) 71 CLR, at pp 464, 500); Wentworth v. Rogers (No.5) (1986) 6 NSWLR, at p 538) proof is necessary “where so serious a matter as fraud is to be found” ((5) Rejfek v. McElroy (1965) 112 CLR, at p 521). Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct ((6) See, e.g., Motchall v. Massoud [1926] VicLawRp 43; (1926) VLR 273, at p 276) and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J. commented in Briginshaw v. Briginshaw ((7) (1938) 60 CLR, at p 362; and see, also, Helton v. Allen (1940) 63 CLR, at p 711): “The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved ...”. Clear and cogent evidence to prove matters of the gravity of fraud or crime are, even when understood as not directed to the standard of proof, likely to be unhelpful and even misleading. In our view, it was so in the present case.” Section 140 of the Evidence Act 1995 (NSW) provides as follows: “ 140 Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account— (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged.” Accordingly, the legal onus to prove her case rests on the plaintiff. The plaintiff must satisfy the civil burden of proof on the balance of probabilities but the court must take into account the nature of the allegations of the plaintiff , here serious criminal activity, when deciding whether or not it is satisfied to that standard. In Nguyen v Tran [2018] NSWCA 215 Beazley P (with whom Emmett AJA and Bellew J agreed) stated as follows at [62]-[64] : “62. As is apparent from this passage , the Briginshaw principle is directed to proof in a civil proceeding of a party’s claim, which at all times remains proof on the balance of probabilities. This is now stated in express terms in s 140 , which governs the standard of proof in a civil proceeding. In accordance with s 140(1) , “ the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities ”. Section 140(2) provides for the matters that a court may take into account in deciding whether it is so satisfied, including the “ gravity of the matters alleged ”, picking up the language of Briginshaw . 63. However, care must be taken when stating the requirements of proof in a case in which s 140(2) is invoked. The High Court was alert to this in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd in the passage I have extracted above . Whilst acknowledging that there were authoritative statements using the language of “ clear or cogent or strict proof ” , the plurality’s observations were in significantly more moderate terms, namely, that a court should not “ lightly make [ such ] a finding ”. 64. Nor does s 140 refer to a requirement that there be “ ‘clear or cogent or strict proof’ in order to make out on the balance of probabilities [ the appellant’s ] allegation ” , as her Honour, at [125], considered was required. Rather, the nature of the defence, including the gravity of the denial that the respondent was in the car, was a matter for her Honour’s consideration in determining whether she was satisfied that the respondent had proved his claim. As I have sought to explain, there was no onus or burden on the appellant “ to make out on the balance of probabilities ” her denial of the respondent being in the car or to adduce evidence at all, let alone evidence satisfying a description of “ clear or cogent or strict proof ”.” In Musa v Alz r eaiawi [2021] NSWCA 12 Gleeson JA (with whom Bell P and Macfarlan JA agreed) stated as follows at [ 40]-[42] and [ 5 0]: “40. It has been said that s 140(2) provides for no new principle: Palmer v Dolman [2005] NSWCA 361 at [40] per Ipp JA (Tobias and Basten JJA agreeing); Bale & Anor v Mills (2011) 81 NSWLR 498; [2011] NSWCA 226 at [71]- [72] (Allsop P, Giles JA and Tobias AJA) . It reflects the principles stated in Briginshaw v Briginshaw , where Dixon J said at 362: The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences. 41. It is well accepted that the principles in Briginshaw v Briginshaw elucidate the list of matters in s 140(2): Director General of Department of Community Services; Re Sophie [2008] NSWCA 250 at [50] per Sackville AJA (Giles JA and Handley AJA agreeing); Bale v Mills [2011] at [71]; Bibby Financial Services Australia Pty Ltd v Sharma [2014] NSWCA 37 at [205] (Gleeson JA, Beazley P and Barrett JA agreeing); El-Wasfi v State of New South Wales; Kassas v State of New South Wales [2017] NSWCA 322 at [123] (Leeming JA, Simpson and Payne JJA agreeing). 42. Importantly, the requirement stated in Briginshaw v Briginshaw that there should be clear and cogent proof of serious allegations, does not change the standard of proof, but merely reflects the perception that members of the community do not ordinarily engage in serious misconduct: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd at 171; Palmer v Dolman at [46].” “50. Nonetheless, in my view, no principled basis was advanced for extending the remarks in Neat Holdings to the present case. Moreover, to accept that submission would be inconsistent with the requirement in s 140(2)(c) of the Evidence Act in a case such as the present where fraud is alleged against a party. The primary judge correctly had regard to the gravity of Mr Musa’s allegation that Ms Alzreaiawi forged or was party to the forgery of Mr Musa’s signature on the transfer, in the sense referred to in Neat Holdings at 171, which is referred to at [42] above. There was no error in her Honour requiring ”actual persuasion” on the balance of probabilities of Mr Musa’s version of events. As this Court said in Morley v Australian Securities & Investments Commission [2010] NSWCA 331; (2010) 247 FLR 140 at [750] ”[r]eferences in the authorities to ”actual persuasion” should be understood as equivalent to the state of ”satisfaction” , as that word is used in s 140 ”. (An appeal was allowed, but no exception was taken to this statement.)” In Gautem v Health Care Complaints Commission [2021] NSWCA 85, the Court of Appeal rejected an argument by the appellant that the Tribunal in that case had misapplied the Briginshaw standard of proof. The case involved an allegation of professional misconduct against a medical specialist. The Court of Appeal found that the Tribunal had properly applied the Briginshaw test. Payne JA (with whom Leeming JA and Simpson AJA agreed) held that the statement that the Tribunal “ must be convinced (or at the very least comfortably satisfied) that the alleged conduct actually occurred ” “ correctly encapsulates the test and is commonly used ” . Reference was made to s 140 of the Evidence Act and the need for the finder of fact to be conscious of the seriousness of the allegations and the correspondingly heightened need to be satisfied that they are made out: see Kumar v Legal Services Commissioner [2015] NSWCA 161 at [63] referred to in Gautem at [88]. Findings of fact It is necessary in this difficult matter to make a number of findings of fact. I will consider later in these reasons whether I am satisfied that a sexual assault occurred as claimed by the plaintiff. I proceed to make related findings of fact on other matters. The factual findings which I make on the evidence are as follows: In the early 1970s , the plaintiff lived with her family in K in New South Wales. The plaintiff was born on xx June 195x . In the second half of 1972 , the following persons lived in the plaintiff's house in K : [confidential] . [Confidential] . The defendant was born on x June 195 x . He was thus three years older than the plaintiff. The defendant also [confidential] and was very well known to the plaintiff's family. He had been to her house on numerous occasion s. He was a friend of her older brother. When the plaintiff was in her early teens she liked the defendant. He was well known to her as she had seen him at her family home on many occasion s and during [L sporting] events . The defendant was employed as [confidential] . In the second half of 1972 , I find that the defendant was the owner of a white X two-door car. The plaintiff gave evidence that the car driven by the defendant was in her view a golden brown W . However, I believe the defendant is more likely to be accurate as to the type of car which he owned at the time. I find it was white in colour as the defendant stated . The defendant married in late 197 x when he was xx years old. Soon after , he and his wife had a baby son. The baby was born in 197 x . The defendant lived with his wife and baby in K . [Confidential] . As at 1972, the defendant ’ s wife was a nurse who worked at K hospital. Despite various documents referring to July 1972 (Exhibit 1 and Exhibit A page 36A), I find that the alleged sexual assault which is the subject of these proceedings happened during the school holidays in September 1972. I accept the plaintiff ’ s evidence on this issue. As at that time, the plaintiff was still at high school. As at that time, the plaintiff had already turned 16. I am satisfied from the defendant ’ s cross-examination , that he believed the plaintiff to be around 16 at that time but he was not sure or had the means of knowledge that she had turned 16. He was thus willing to engage in sexual activity with the plaintiff when he did not know she had turned 16 years of age. Various events are referred to in the evidence as having occurred before the evening of the day in question. The plaintiff alleges an incident in her parents ’ bedroom when she was 14 when she was with the defendant, an incident near the swimming pool in K where the defendant followed the plaintiff and the defendant mentions an incident at the defendant's house where the defendant initiated kissing the plaintiff. In addition, the defendant asserts that the plaintiff had been coming around to his house at around 5 o'clock on 10 to 12 occasion s before the night of the alleged sexual assault at a time when the defendant's wife was working as a nurse at K Hospital and the defendant was alone with his baby being looked after by his mother. In my view , it is unnecessary to make findings in relation to these matters. That is because what is relevant is the sexual assault alleged to have occurred in September 1972. Previous incidents do not appear to me to be particularly significant except as to credit. However, I will proceed to consider the various allegations. I take my findings as to them into account. I reject aspects of the plaintiff's evidence in relation to the alleged event in her parents ’ bedroom when she was 14 . The plaintiff's evidence was that both she and the defendant were fully clothed and kissed . It is therefore difficult to see how, as appears to be the plaintiff's evidence, there was a degree of closeness and intimacy which resu lted in the defendant ejaculating on her clothes . I think it unlikely the defendant would partially disrobe in the manner required in the plaintiff ’ s parent ’ s bedroom or that he seemed to have the opportunity to do so . I am not satisfied that this event occurred as the plaintiff stated . I accept that there was an incident where they kissed in the bedroom. In relation to the alleged swimming pool incident, I accept that there was interaction between the plaintiff and the defendant after she left the swimming pool, and possibly behind the wall at her school, which involved kissing. The plaintiff ’ s evidence was clear on this point and I prefer it. I am not satisfied that the defendant attempted to pull down the bottom of the plaintiff ’ s swimming costume . The evidence was that this occurred during the day and the possibility of being seen by others was real. I am not satisfied that this occurred as the plaintiff stated due to the risks involved of being observed . I am also not satisfied that the plaintiff attended th e defendant's house on 10-12 occasion s in the few months prior to the incident at about 5pm where they kissed and cuddled. I prefer the plaintiff ’ s evidence on this point. This suggests a strong attraction by the plaintiff to the defendant as a 16-year-old girl with the willingness to be seen at the defendant ’ s house when he was married . I viewed the plaintiff carefully when this was put to her and I accept the plaintiff ’ s denial of this account. However, I accept that on at least one occasion the plaintiff was at the defendant's house (for example for the dinner to which Mr N was invited) where the defendant initiated cuddling and kissing with the plaintiff as he stated . I do not find that this was initiated by the plaintiff. I find that the defendant, despite being married, was attracted to the plaintiff and pursued her when the occasion was available . In September 1972, the defendant had decided to move to Sydney with his wife and child for employment reasons . At that time , despite being married , he was attracted to the plaintiff and was well known to her family. I have found that there was some intimate non-sexual con tact between the plaintiff and the defendant on occasion s in the period prior to this time which the defendant but not the plaintiff had initiated. I accept the evidence of the defendant that he wished to attend the plaintiff's house to tell her of his move to Sydney . I also accept the evidence of the defendant that when he attended the plaintiff's house he did not intend to initiate sexual activity with her. On the evidence, there was no way of the defendant knowing that the plaintiff's mother would not be there at the premises. Other family members may also have been there. In my view , it is likely that the defendant attended the premises in the belief that there may be a number of family members present including the plaintiff and her mother . It is likely that he wanted to tell the J family including the plaintiff of his decision to move to Sydney. That move would have been a significant one to a number of people in K . His wife was also working at the time. The evidence of the plaintiff and the defendant is that t he defendant arrived at sometime between 8 to 8:30pm : T32.31; T75.42 ; T238.10 . The evidence of Mrs D , the plaintiff's mother, is that he must have arrived much later than that because she was only absent at a relative ’ s house known as “ [ V ] ” , six houses away, for one half to three quarters of an hour and she went at some time closer to 10pm to deliver a message. In my view, Mrs D is likely to be mistaken as to the time and she probably left earlier , shortly before 8.30pm, and stayed there longer . The plaintiff submits that Mrs D is confused and wrong and the evidence which she gives in relation to the plaintiff's return related to another occasion or is simply erroneous . In my view , that submission should be rejected in part . I was very impressed with Mrs D . She appeared to be a careful and thorough witness. She linked the occasion to when she went to “ [ V 's ] ” at night and when her friend Ms E was later present. The plaintiff says that when she came home her mother and Ms E were not present. Having heard the evidence, read Ms E ’ s statement (which I approach with some caution as she was not cross-examined and thus it was not tested), noted the plaintiff ’ s evidence that she did not go out driving with the defendant on any other occasion in the latter half of 1972 (T92.14-T92.21), I prefer the evidence of Mrs D and Ms E that they were present in the house when the plaintiff returned on the night of the alleged sexual assault. The defendant must have arrived at the house at 8.30pm or perhaps even later. Mrs D must have left shortly before he arrived to deliver her message and stayed longer than she recalled at her relative ’ s house . I find that the defendant arrived at the house on the relevant night, parked outside (there being little chance that he would be seen as I accept Mrs D 's evidence that there was no street lighting at the time) and proceeded to knock on the door of the house. The defendant's D efence says that he rang ahead. He accepted in his evidence that that was incorrect. I find that he did not ring ahead. I find that the defendant entered the house and asked the plaintiff to come for a drive as he wanted to tell her something. In my view , he wanted to tell her that he was going to Sydney with his wife. I accept the defendant ’ s evidence on that issue. I accept the plaintiff's evidence that she initially resisted going as she felt somewhat unwell. However , in the end she agreed to accompany the defendant in his car. It is suggested that the defendant pulled on the plaintiff's arm and “ coerced ” her into getting into the passenger seat of his car. I find that the defendant may have touched the plaintiff's arm to guide her to his car but I reject the proposition that he pulled on her arm to force her to get into the car. I find that the plaintiff entered the car of her own free will. There is an issue as to where the plaintiff and the defendant then proceeded. The plaintiff said that they we nt to an area which was dark near some concrete silos. The defendant says that he initially did not know where he was going to drive but ended up driving to the car park at the hospital where his wife worked. The plaintiff submits that driving to the car park was highly unlikely as the defendant would not have wished to risk being seen with the plaintiff as his wife worked there and he could have been seen by her or one of her colleagues. The defendant says that he went there because he knew his wife was working and the entrance to the hospital was not near where he parked. Effectively, he said the presence of his car would not have drawn attention. The defendant could easily have given evidence of him parking in an area which was dark and private in order to have a discussion with the plaintiff. In my view , the defendant is more likely to recall where he drove the car rather than the plaintiff. He was the driver not a passenger. The plaintiff gives evidence that the entire experience was traumatic for her and that she was upset. In my view, the defendant ’ s evidence is more likely to be correct on this issue in these circumstances . There seems no convincing reason why he would give evidence that he took the plaintiff to the hospital car park unless it occurred. In my view , it is unlikely that the plaintiff would have been paying attention at the time where they we re driving. The defendant must have been paying attention as he was driving the car. Even if I am wrong o n this factual issue and the defendant ’ s recollection is in error , I do not consider it to be particularly significant one way or another as to my findings as to what occurred next. I will refer to my findings in relation to th e alleged sexual assault later i n these reasons . In relation to returning to the plaintiff home, I accept that the defendant dropped the plaintiff close to the corner of her street but not immediately outside her house. I accept the defendant ’ s evidence that he did not wish to be seen returning with her although he does not seem to have had the same problem when he arrived. Perhaps returning later at night would potentially attract more attention. Having considered the evidence of the plaintiff, Mrs D and the statement of Ms E , I prefer the evidence of Mrs D and Ms E as to the plaintiff ’ s arrival home . Both had similar recollections as to important aspects. I find that when the plaintiff retu rned home that her mother and Ms E were present and that there was a conversation with the plaintiff where the mother asked where she had been and she said that she went for a drive with “ Z ” and that her mother told her that she did not want her going out with him as he was a married man. I find that the plaintiff was somewhat upset when she arrived at the house, she knew her mother was likely to be at home and she composed herself before entering. I prefer the evidence of Mrs D on this issue for a number of reasons. First, there was no other occasion suggested by the plaintiff when she had gone out for a drive with the defendant after he was married. The defendant was known colloquially within the family as “ Z ” . There accordingly was no other occasion in relation to which this conversation could have occurred. Mrs D was definite and clear in her evidence and I prefer it. She had no reason to lie. She did not appear to have a poor recollection on the matter. She gains support on the issue from Ms E ’ s statement. There is an issue as to what the plaintiff was wearing that night. I accept the evidence that the plaintiff had few good clothes at the time other than a few dresses. The plaintiff gave evidence that her favourite dress was a pink dress with a white collar and cuffs and she was wearing it . Mrs D gave evidence that the plaintiff's favourite dress at that time was a blue dress with white collars and flowers on it. She did not recall a pink dress which the plaintiff had other than when she was a much younger child. The mother gave evidence that later when she had to go to court , she actually wore the blue dress of the plaintiff . Although the plaintiff was only 16, Mrs D when she gave evidence was an slight lady who could well have fitted into a teenager ’ s dress. On balance, I prefer Mrs D ’ s evidence on this point. In my view , it is more likely that she would recall what the plaintiff was wearing as she looked at the plaintiff when the plaintiff entered the house on her return . The plaintiff states that when she returned she was crying and she had blood on her pink dress. After considering the various accounts, I reject that evidence. I prefer the evidence of her mother and Ms E that when the plaintiff returned she appeared well groomed and appeared to be otherwise normal. I think it highly likely that the mother and Ms E would have seen blood on a pink dress if the plaintiff had returned in that state as she claims . The evidence of Mrs D and the statement of Ms E are also inconsistent with the plaintiff returning crying. The plaintiff gave evidence that the next day she threw out the dress because it had blood on it and the ripped underpants. I accept that she may have thrown out the underpants . I am unable to come to a clear finding as to whether the pants were torn and the dress was thrown out but think the latter unlikely. Mrs D said she later wore the dress herself. The defendant moved to Sydney with his wife. The plaintiff finished her schooling and then proceeded to Sydney in January 1973. The plaintiff remained in Sydney at a house in Y with a family who was also involved in [ L sport] until Easter 1973 when she returned to K , as she was homesick. A number of events occurred when the plaintiff was in Sydney. First, the plaintiff went, on a number of occasion s, to L [sporting events] . I accept that at least one if not at all of these [events] , the plaintiff saw the defendant's wife and child. She therefore knew that the defendant must be present. The fact that the plaintiff attended these [events] with the risk of meeting the defendant, in my view, does not detract from the possibility that the sexual assault may have occurred as the plaintiff indicated. The plaintiff would have been in the presence of others and thus feel safe . The plaintiff gave evidence that she got a lift with the defendant, his wife and child with a friend once to K when she was in Sydney. The plaintiff said that this lift was arranged by her mother or brother. I accept that evidence. It was submitted that the plaintiff would not get in the same car in which she was allegedly raped if the assault had occurred as she had indicated. Again, while it is surprising that the plaintiff would have been willing to get in the car in which she was allegedly raped, the plaintiff was in the presence of others including the defendant ’ s wife and child. I do not consider that this is necessarily inconsistent with the plaintiff's version. The plaintiff was clearly homesick and she wished to go home. She was in the presence of others and was thus in a protected environment. There was evidence from the plaintiff which was generally consistent with evidence from the defendant that on one occasion in xx x Road in Y t he plaintiff met the defendant and was given a lift home by him to the house in Y where the plaintiff was staying. I accept that evidence. The lift was in the same car with the plaintiff sitting in the same seat where she claimed that she was sexually assaulted. The plaintiff claimed that she was working late at the bank where she was working. The defendant claims that it was earlier and was light. The defendant concluded that it was earlier simply because he could recall that it was light. The plaintiff claims that she only agreed to the lift from the defendant as he told her that there were no more buses. The defendant asserts that on the way home he stopped the car and attempted to kiss the plaintiff and she re-buffed his advances. I accept that evidence. I do not accept the plaintiff's account that the defendant said that there were no more buses and she believed him . The plaintiff was in Sydney. There was no suggestion that this late working occurred in the first week that she was in Sydney. She was working at a bank in Y and she was staying with a family in Y . The plaintiff would have been likely aware, in my opinion, of the frequency of buses , including later buses , particularly as she was working late . Sydney was new to her and she would likely be concerned at aged 16 to know about the details of public transport. In my view , the plaintiff's willingness to agree to a lift with the defendant in the same car where she was allegedly violently sexually assaulted sitting in the same seat , is highly surprising and strange . In my view , it is very unlikely that a young girl who was sexually assaulted would agree to a lift with the perpetrator only six months after the alleged sexual assault unless she had no real choice . The plaintiff said that she was a young girl in an unknown city. However, she was living with a family. The family home was in the same suburb. She must have known how to get there from her work. In the alternative, she could have called for a taxi home if she was concerned. In the further alternative, she could have returned to the bank to see if someone could give her a lift. I will refer further to this event later in my re asons . The plaintiff gave evidence that the defendant attended her wedding. She said her mother was in control of the wedding list and that she indicated the person s she wanted to attend but otherwise left it to the mother. The plaintiff said that she saw the defendant's name on the list and had a discussion with her future husband that she did not want the defendant and his wife present. I accept that evidence. In my view, it is unlikely that the plaintiff, even assuming her to be a timid and conservative young woman, would have agreed for the defendant to attend her wedding if he had sexually assaulted her in a forceful and violent way as she claims . In my view , it is very likely that the plaintiff would have indicated to her mother that she did not want the defendant and his wife present and would have referred to some event which she did not wish to discuss to substantiate that. I think it highly unlikely that the plaintiff, even assuming that she was quiet and modest and that her mother was assertive, would agree to the defendant attending her wedding in the circumstances without some much more active opposition . Extensive evidence was given by the plaintiff, Mr C and Mrs D in relation to conversations which occurred in Easter 1976. The plaintiff denied that she was present when her husband had a conversation with Mrs D about the alleged sexual assault. Mr C had asked the plaintiff about whether she had any prior sexual history before they were married. I accept that the plaintiff did not reply to his questioning on the issue but on one occasion said words to the effect “ something occurred which I did not want to happen ” . When , on their honeymoon, Mr C was apparently dissatisfied with h is and his wife's intimate relationship , he questioned her further in relation to her sexual history. I accept that at this time the plaintiff gave him an account of being sexually assaulted. Further detail was later provided to him by her. I find that Mr C became increasingly concerned and obsessed in relation to his wife's pre-marriage sexual history. He discussed it with her on many occasion s. This appears to have become a dominating and consuming issue in their married life. I therefore accept that Mr C raised the issue with Mrs D at Easter in 1976. I was more impressed with Mrs D 's recollection than that of Mr C and the plaintiff in relation to this issue. I prefer her account of it. Although I found Mr C overall to be a careful witness , he gave inconsistent evidence as to whether the plaintiff had initially disclosed the defendant's name. At first he said that she had not but he had made his own enquiries and knew the defendant ’ s identity as the alleged perpetrator . He then changed his evidence and said that she did refer to the defendant's name. Overall, in my view , Mr C appeared to wish to portray that he had a better recollection of events than he actually had. I found Mrs D to be a careful, thorough and convincing witness in relation to the Easter 1976 discussions. I prefer Mrs D ’ s evidence on this issue to that of Mr C and the plaintiff . Mrs D gave evidence that her daughter had never raised the issue of the sexual assault with her. The plaintiff was clearly very upset about this issue. It was an issue which appeared to dominate her life particularly from the early 1980s if not before. In my view , it is likely that she would not have raised it with her mother but would have left it to Mr C as he was particularly worried about the plaintiff ’ s account . [Confidential] . [Confidential]. Mrs D gave an account of a conversation which she had with Mr C on the balcony at Mr F 's home in which he indicated that he thought he was having a nervous breakdown and was seething. He said he had difficulty coping with the fact that his wife had a sexual relationship before he was married. Mr C denied the conversation. Mrs D was clear and precise in her evidence. Having seen both witnesses, I accept and prefer her evidence. It was also generally consistent with Mr F ’ s evidence. [Confidential]. Following the discussions with Mr F in 2014, the plaintiff decided to take her concerns in relation to the alleged sexual assault to the New South Wales police. I accept that she saw the police on a number of occasion s. There was before me no evidence that any criminal proceedings have been taken against the defendant following the plaintiff seeing the police. The plaintiff commenced these proceedings in 2018. Medical findings As indicated above, the plaintiff relied on a number of medicolegal and treating reports . I accept the first report of Dr B dated 29 January 201 9 , that the plaintiff was taking appropriate prescription medication but she was diagnosed with PTSD. The plaintiff also had anxiety . I accept the opinion of Dr B in this report that with treatment the plaintiff's mood had improved and she was feeling better . I accept that the history which the plaintiff gave to Dr B was generally consistent with her evidence of the alleged assault in the case. The plaintiff had previously been diagnosed with PTSD or an adjustment disorder by psychologists in 2015 and 201 8 . I accept the opinion of Dr B that the plaintiff ’ s PTSD was, on the plaintiff's history of the alleged sexual assault, link ed to that . I also accept the finding that the plaintiff has shown resilience and did not appear to have any limitations with regards to previous domestic and recreational activities or to her employment opportunities . I also accept the opinion of Dr B that the delayed reporting of sexual abuse is common in circumstances where the victim felt shame about what had happened. At that time , Dr B recommended treatment for two years. In a later opinion dated 6 April 2021, Dr B diagnosed PTSD and generalised anxiety disorder. She based that on the plaintiff continuing to have recurring thoughts of the incident and the responses from the defendant a nd her family, flashbacks and nightmares and depression and anxiety and suicidal ideation . Dr B noted that the plaintiff said she continued to w ork full-time in her husband's business but was finding it hard due to anxiety . I accept Dr B ’ s opinion that the plaintiff continued to show resilience and was able to work but found relationships difficult . I also accept her opinion that the plaintiff was not partially or totally incapacitated for domestic duties and was able to enjoy social and recreational activities. I accept Dr B ’ s recommendation about the continued need for the plaintiff to have antidepressant medication for a further six months fo llowing the court hearing with review and counselling. The plaintiff appeared to be a sincere and honest woman . As stated above, I have no doubt that she believes that she was sexually assaulted by the defendant in September 1972 . I find that she has chronic PTSD and generalised anxiety disorder a s Dr B states . I find that she continues to suffer symptoms of anxiety and depression . I find that she continues to need the treatme nt referred to at E xhibit A page 36 . I n my view , a factor in the plaintiff ’ s condition and the need for treatment is her husband's response to the allegations and the strong and obsessive view he has taken in relation to the defendant's conduct. Despite that, I accept the plaintiff's evidence a s set out in Dr B ’ s opinion that he remains kind and supportive to her. The plaintiff is placed in a difficult position having regard to her husband's attitude over many years to the alleged sexual assault. Consent of the plaintiff One issue which was raised by the parties is whether the plaintiff consented to the alleged sexual act even on the defendant ’ s case. On the plaintiff ’ s version, the alleged incident being a violent sexual assault clearly constituted the criminal offence of rape under s 63 of the Crimes Act 1900 (NSW) as it then existed. The plaintiff was then over 16. There was therefore no issue in relation to the age of consent which was 16 for male/female sexual acts involving penetration. On the defendant ’ s case, if it is accepted, there would appear to be significant doubts that any crime occurred at all. The real issue for present purposes is whether there was consent in relation to the tort of battery on the defendant ’ s case . In Gorman v McKnight [2020] NSWCA 20 the Court of Appeal considered the nature of consent which must be established in relation to a tort claim based on an alleged sexual assault. In Gorman a number of the complainants alleged offences constituting sexual assaults said to have been committed against them when they were minors. The action involved an action in damages against the estate of the alleged perpetrator. The Court of Appeal considered the nature of the consent required. Bell P (with whom Payne JA and Emmett AJA agreed) stated the following at paragraphs 72-77: “72. There is, however, an important distinction between the fact of consent (and its availability as a legal defence), on the one hand, and a person’s belief as to another’s consent, on the other hand. The latter may form the basis of a defence to criminal charges in some but not all contexts (for example, not where the criminal offence exists irrespective of consent: see [7] above). In the context of consent as a defence to a claim in tort, however, when and if such a defence is available (as to which see further below), it is the presence or absence of consent that matters. That, in turn, will principally turn on an analysis of the evidence of the plaintiff in any given case and an assessment of his or her conduct at the time in question, including his or her age and experience. It would not be affected by any evidence as to Mr Judd’s state of mind (see Moon v Whitehead [2015] ACTCA 17 at [22] ( Moon )) so that his inability to participate in the trial should not in this regard be considered to be a material source of prejudice. 73. Views differ as to whether the absence of consent is an element of a cause of action based on trespass to the person, assault or battery or, rather, is a matter that, if available as both a matter of law and on the facts, falls to be pleaded as a defence. McHugh J’s judgment, although dissenting on the facts, in Secretary, Department of Health and Community Services v JWB and SMB [1992] HCA 15; (1992) 175 CLR 218 at 310-311; [1992] HCA 15 ( Marion’s Case ) supports the latter view, as does the decision of this Court in Dean v Phung [2012] NSWCA 223 at [59]- [62], the decision of the ACT Court of Appeal in Moon at [14], and the decision of the Supreme Court of Canada in Norberg v Wynrib [1992] 2 SCR 226 at 246 and 303 ( Norberg ). A number of decisions support the former view, however, including the learned discussion of the issue by Leeming JA in White v Johnston (2015) 87 NSWLR 779; [2015] NSWCA 18 at [94]- [129]; see also Freeman v Home Office (No 2) [1984] QB 524 at 539; J Goudkamp, Tort Law Defences (Hart Publishing, 2016) at 3.61; SKN Blay , “Onus of Proof of Consent in an Action for Trespass to the Person” (1987) 61 ALJ 25. 74. As has been noted at [10] above, Mr McKnight has positively pleaded that he was a minor who was not legally or psychologically capable of consenting to sexual acts with an adult male and, by necessary implication, did not consent to the sexual assaults so that nothing is likely to turn on the debate as to onus in his proceedings. The absence of consent is not raised explicitly in the Channell and Gammage pleadings, and whether or not it should have been positively pleaded was not a matter that was debated before the Court of Appeal. During the hearing, Mr Weinberger on behalf of Mr Gammage took the position that there was “consent” in the sense that his client returned on a regular basis to Mr Judd’s property after each assault, and was not forced to do so but that, because of his age, he was lawfully not capable of giving his consent. 75. Consent has not in fact to date been pleaded by way of defence to any of the three underlying sets of proceedings. This is despite the fact that defences (described by Mr Neil in argument as “holding defences” ) have been filed and it would appear that the Estate, based upon Mr Wrench’s evidence and the plaintiffs’ witness statements to police (insofar as they record that each plaintiff came back to Mr Judd’s farm on a regular basis notwithstanding sexual assaults on prior occasions, and without any apparent physical coercion to return or engage in sexual activity), would be in a position to do so. 76. If consent is pleaded as a defence to the claims, the plaintiffs in each set of proceedings will either put that in issue as a question of fact and/or contend that consent is not an available legal defence to a civil claim for damages for sexual assault of a minor. Issues may arise going to the reality of any apparent consent and/or its availability in circumstances where the plaintiffs may have lacked the maturity to give such consent (see Marion’s Case at 311). In Norberg , La Forest J, delivering the judgment of himself, Gonthier and Cory JJ, observed (at 247) that: “A ‘feeling of constraint’ so as to ‘interfere with the freedom of a person's will’ can arise in a number of situations not involving force, threats of force, fraud or incapacity. The concept of consent as it operates in tort law is based on a presumption of individual autonomy and free will. It is presumed that the individual has freedom to consent or not to consent. This presumption, however, is untenable in certain circumstances. A position of relative weakness can, in some circumstances, interfere with the freedom of a person's will. Our notion of consent must, therefore, be modified to appreciate the power relationship between the parties.” In the same case, Sopinka J observed (at 304) that: “In assessing the reality of consent and the existence and impact of any of the factors that tend to negate true consent, it is important to take a contextually sensitive approach. ... Certain relationships, especially those in which there is a significant imbalance in power or those involving a high degree of trust and confidence may require the trier of fact to be particularly careful in assessing the reality of consent.” cf. R v Howard [1966] 1 WLR 13 at 15. 77. Furthermore, it may well be that, as a matter of common law and informed by the public policy manifest in legislation at the time of the alleged assaults (see [7] above), and considerations of legal coherence, even actual consent, if established, may not be available as a defence: but see Bain v Altoft [1967] Qd R 32 at 41 per Gibbs J; cf. W Page Keeton et al ( eds), Prosser and Keeton on Torts (5th ed, West Publishing Co, 1984) at 124 where it is said: “If the defendant’s conduct is punishable as a crime primarily or substantially because of its harmful consequences to the consenting party, then there is good reason to take the position that consent will not be regarded as effective to bar a tort action, especially if the consenting party is not pari delicto or in equal fault, with the defendant.”“ In summary, the following propositions emerge: There is a distinction between the fact of consent on the one hand and a person ’ s belief as to another ’ s consent, on the other hand. In the context of consent as a defence to a claim in tort, it is the presence or absence of consent that matters; The presence or absence of consent will turn principally on an analysis of the evidence of the plaintiff in any given case and an assessment of his or her conduct at the time in question, including his or her age and experience; There are differing views by appellate authorities as to whether the absence of consent is an element of a cause of action based on trespass to the person, assault or battery or is a matter which falls to be pleaded as a defence. Clearly consent was in issue in the present case; In some cases consent even actual consent, if established, may not be available as a defence to certain torts. This is particularly the case if the defendant ’ s conduct is punishable as a crime because of its harmful consequences to the consenting party; All the facts and evidence need to be carefully considered. I regard myself as bound by the statements of principle by Bell P. I reject paragraph 13 of the defendant ’ s written submissions to the extent it suggests that I should adopt some other test to that stated by Bell P. The following background matters should be noted: The defendant was a long standing friend of the plaintiff ’ s family and brothers; The defendant was three years old than the plaintiff; The plaintiff was 16 years of age and, on her evidence, which I accept, was a person who had not engaged in any sexual activity prior to the night in question; The defendant was young but married at the time; The defendant had initiated kissing on a few occasion s with the plaintiff prior to the incident in question; There is no evidence that the defendant held a position of authority in relation to the plaintiff such as a teacher or sporting coach; On the evidence of both the plaintiff and the defendant, the defendant did engage in sexual activity with the plaintiff on the night in question involving penetration. At the time, the age of consent was 16 years for male/female sexual intercourse under the Crimes Act 1900. On the plaintiff ’ s evidence , there was a violent sexual assault and there clearly was no consent by her . In my view, despite her inexperience, the plaintiff at the time was intelligent and able to readily perceive sexual activity. On her evidence, she had already prevented the defendant seeking to remove her bathing costume after the alleged swimming pool incident. In my view, the plaintiff was able to provide her consent. H aving regard to the plaintiff ’ s intelligence and age , I reject the proposition that the plaintiff lacked the maturity to give consent to a sexual activity including intercourse . Despite the submissions on behalf of the plaintiff, I do not accept that the relation ship between the plaintiff and the defendant as evidenced in the proceedings was such that the defendant was in a position of dominance. He was only three years older than the plaintiff and was a friend of the plaintiff ’ s family. There is no suggestion, for example, that the event occurred in a remote location in the outback or that the plaintiff was unduly vulnerable and reliant on the defendant for protection or security . In my view, the defendant ’ s evidence is consistent with the plaintiff having provided her consent to the sexual activity. On the defendant ’ s evidence, he got out of the vehicle and walked around and opened the passenger door and moved the plaintiff ’ s legs. He then stated then he removed her underpants. There was no clear evidence from the defendant that any objection was taken by the plaintiff at that stage. He must then have taken actions to undo his clothing to enable sexual activity to have taken place. There is no suggestion by him that the plaintiff made any complaint at that stage. In addition, on the defendant ’ s evidence he placed his body so that he was able to penetrate the plaintiff ’ s vagina. It was only at this stage on his evidence that the plaint iff said no and pushed him forci bly with her hands off her. In my view, as a matter of fact, having regard to the defendant ’ s version alone , there was consent by the plaintiff to the defendant ’ s acts up to the stage when she said no and pushed him off her. This can be inferred for the purposes of the civil action from her absence of taking action or making complaint prior to that time . Whilst the defendant ’ s recollection on all matters that night was not strong he rejected the central case of the plaintiff ; The defendant ’ s account of the conduct in the car was given by him in a straightforward way and was plausible. He did not appear to me to be fabricating his evidence, although there are inherent difficulties in forming an accurate conclusion, as referred to by the High Court in Fox v Percy ; The real issue is whether this conclusion is altered in the light of all of the evidence, particularly the plaintiff ’ s account. As the authorities which Bell P quoted stated, this will principally turn on an analysis of the evidence of the plaintiff and their conduct at the relevant time. Accordingly, on the defendant ’ s evidence there was initial consent by the plaintiff in my opinion for the purposes of the law of battery : see T194.15-.28 and T195.47-T196.5. Even if I reject the defendant ’ s account as being unreliable due to his poor recollection and inconsistent evidence, I must be satisfied in relation to the plaintiff ’ s account of the alleged incident. The issue of the onus in relation to consent in the case of battery or trespass to the person was left open by Bell P in Gorman : see paragraph 73. In the pleadings, an absence of consent is positively pleaded by the plaintiff in the Amended Statement of Claim: paragraph 10. In the Defence filed 21 December 2018, the defendant denies the allegation of a lack of consent and positively pleads that the “ Plaintiff was actively involved and consented to the sexual activity that took place ” : paragraph 6. In the absence of a concluded view by the High Court, I will follow the most recent Court of Appeal analysis being the detailed and learned decision of Leeming JA (with whom Barrett and Emmett JJA agreed) in White v Johns t on (2015) 87 NSWLR 779; [2015] NSWCA 18 at [94]-[129]. His Honour held that the legal burden remained on the plaintiff to prove an absence of consent : see at [125] and [128] . With respect, I find his Honour ’ s analysis to be convincing . The onus rests on the plaintiff to negative consent. This seemed to be accepted by counsel for the parties during oral submissions. Whether the plaintiff's allegations of the sexual assault by the defendant are established Having considered all the evidence, and having reflected on the versions of the plaintiff and the defendant of the evening in question in the light of the evidence of Mr C , Mrs D and the statement of Ms E , the court is not satisfied on the balance of probabilities , taking into account the seriousness of the allegations made against the defendant, that the plaintiff has made out her case as pleaded in the Amended Statement of Claim and as given in her oral evidence . In arriving at this conclusion, I have considered carefully the various matters raised in the plaintiff ’ s written and oral submissions. I have reviewed in detail the plaintiff ’ s evidence. The matters which lead the court to this conclusion are as follows: Although Mrs A impressed the court as an honest and sincere witness, the evidence was that between 1974 and the present , the plaintiff and her husband had discussed the alleged incident “ perhaps hundreds of times ” : T188.8; T108.44. I accept that evidence. These discussions extended to whether the plaintiff should commence these proceedings: T188.16. On the basis of this evidence and the evidence of Mr F and Mrs D , t he plaintiff ’ s husband appeared to be obsessively focussed on the matter and has ruminated over it regularly for over 40 years. I accept he is a dedicated husband and is devoted to the plaintiff. However, the plaintiff ’ s pre-marital sexual history has caused real upset and focus in the marriage. Although some discussion even detailed discussion on the matter between spouses is to be expected having regard to its seriousness , the substantial risk of reconstruction and inaccurate elaboration or embellishment on the incident over those hundre d s of discussions over many years is in my view a real one and must be taken into account . In doing so, I also take into account that the plaintiff has reported the incident to health professionals and the police ; The evidence of Mr F at T224 is troubling. I accept and prefer his evidence to that of Mr C . He had no reason to fabricate the evidence and he was an impressive witness. It provides substantial support for the concept that there has been a reconstruction of the events of the alleged sexual assault by the plaintiff and her hu sband over the years since their marriage . This was contrary to their oral evidence ; Although the defendant had a poor recollection on some matters, was willing to assume incorrectly some matters for the purposes of his Defence and I have not accepted aspects of his oral evidence, he did not appear to me to be lying on the central issue. That, however, may be simply his incomplete recollection of a matter which was not particularly significant to him at the time ; The plaintiff ’ s willingness to accept a lift from the defendant at Y in early 1973 , about six months after the incident, and thereby sit alone in the same car and seat where the alleged violent sexual assault occurred is significant. The plaintiff was only 16 in a strange city (Sydney) and may have finished late from her work but I find it difficult to accept that she would take a lift from the perpetrator of an alleged violent sexual assault to her when they were to be the only occupants of the vehicle. As a young woman in a new city , her safety would be very important to her. Both her place of work and place of residence were in Y and the plaintiff had other options (walking or taxi) at her disposal . This raises real concerns about the accuracy of the plaintiff ’ s case as to the sexual assault . In my view, contrary to the submissions of counsel for the plaintiff, this goes to liability and not just damages ; The plaintiff ’ s acceptance of the defendant and his then wife being present at her wedding in early 1976 is relevant. The plaintiff alleges a violent sexual assault was committed on her by the defendant. The plaintiff said she did not want the defendant to attend the wedding but he was invited. Even assuming the plaintiff ’ s mother was a person of strong personality and arranged the invitation list, it would be expected that the plaintiff would take more active steps to ensure the defendant did not attend her wedding if the violent sexual assault had occurred as she states ; The evidence of Mrs D . The plaintiff stated that she “ never went out with [the defendant] when he was married ” : T92.16. The defendant was married in late 197 x . Even allowing for some inconsistencies in Mrs D ’ s evidence as discussed above, her evidence of what she said when the plaintiff allegedly came home on the night of the alleged assault is only consistent with the plaintiff having been out with the defendant after he was married. Mrs D was clear and persuasive in her evidence on this point: T300.2 . I have accepted it ; The statement of Ms E . The account of Ms E provides some support for Mrs D ’ s account, particularly that when the plaintiff arrived home she said she “ had been out with [ Z ] [the defendant], he just dropped me home ” : Exhibit 4 paragraph 8. Ms E also provides some support for the comment being made after 10.00pm at night: paragraph 15. I take into account that Mrs D may well have discussed the matter with Ms E . I also take into account that Ms E was not cross-examined and tested on her statement ; The defendant did not know who would be home when he arrived at the J home on the night of the incident. I accept his evidence on this point. For all he knew Mrs D and the plaintiff ’ s second brother and sister would be home. This is inconsistent with a planned assault by the defendant as the plaintiff seems to allege ; The plaintiff ’ s other contact with the defendant in 1973 in Sydney is of some relevance but not significant. Although the plaintiff spent time with the defendant and his then wife after the alleged sexual assault (including in the car where the incident was supposed to have occurred), it was in the presence of other persons when the plaintiff would have felt protected ; I do not find the absence of recent complaint to be particularly persuasive in the light of the medical evidence . Victims frequently do not report sexual crimes immediately . At the end of the day, the plaintiff ’ s version of the alleged sexual assault is possibly correct but I am not satisfied that it has been established on the balance of probabilities taking into account the seriousness of the allegations made. I find that the absence of consent has not been established to the requisite standard. Damages Introduction I t is necessary for me to assess damages in this matter in the event that I am found to be in error in relation to my factual and legal conclusions in the matter. I proceed to do so , on the basis that the plaintiff's account of the alleged sexual assault is preferred. If the plaintiff ’ s factual account is accepted, then it seems that the plaintiff's current medical condition of PTSD and generalised anxiety disorder, together with flashbacks and nightmares, depression and suicidal ideation at times, is at least principally caused by the claimed sexual assault. On the plaintiff's evidence, she had no prior sexual experience at the time of the assault. I accept that evidence. Although I have found that the re has been obsessive and ruminating conduct by Mr C , I accept the medical evidence that the plaintiff's medical condition is connected to the alleged sexual assault. In other words, I find that if the plaintiff ’ s version is accepted the alleged sexual assault is a common sense cause of her medical conditions. It is always very difficult to assess damages as compensation in a civil matter in relation to a sexual assault. As I have previously stated, on one level no amount of money can compensate for sexual abuse. Although I stated that in the context of persistent sexual abuse over a lengthy period of a party as a child, similar comments would apply to the plaintiff when this occurred at aged 16. The court has a duty to make a proper assessment of damages in accordance with legal principle: KS v GR [202 0 ] NSWDC 73 at [42]. There is no claim in the present case for gratuitous domestic services which would make relevant provisions of the Civil Liability Act 2002 (NSW): see Gersbach , above, at paragraphs 481-483. Damages are therefore to be assessed in accordance with the common law. General damages I accept the statement of Garling J in Gersbach , above, at paragraph 504 that the sum to be awarded for general damages is a sum “ to compensate a plaintiff for all of the physical harm and mental harm suffered by the plaintiff as a result of the conduct of the defendant ” . In the present case , only one occasion of sexual assault has been relied upon. This is not to diminish its seriousness if it is accepted to have occurred as stated by the plaintiff. The plaintiff seeks $ 250,000- $ 3 00,000 in general damages. In my view , this is excessive. Although the plaintiff had no prior sexual experience, an assault occurred on only one occasion . The plaintiff appears to have been able to continue her usual life including schooling, employment, marriage, having children and then working for her husband in his business, after the assault. I accept that the evidence shows that the alleged assault has had a profound effect on the plaintiff and has influenced the whole of her life including her marital relationship and mental health . I take into account that the sexual assault involved force and , on the plaintiff's account , if accepted , that she resisted it and told the defendant to stop. I take into account that the assault if found involved penile/ vaginal penetration. I take into account, as stated , that the plaintiff has had very serious mental health and psychiatric conditions as a result of the assault including suicidal ideation and the need for prescription medication . I reject the submission of the defendant , on this scenario, that the impact on the plaintiff ’ s relationship with her husband has been caused by his reaction and not by the assault. The defendant submits the general damages should be assessed at $120,000. In my view, this is too low and does not properly take into account the matters referred to in the previous paragraph. Tak ing into account all the evidence, including the psychiatric evidence which is before the court and the plaintiff's oral evidence, I assess the plaintiff's general damages at $150,000, comprising $1 00 ,000 for past damages and $ 50 ,000 for future damages. I nterest on past general damages I n relation to the assessment of $ 1 00 ,000 for past general damages, it is appropriate to calculate interest on the amount at 4% . As the period to which it relates is a lengthy one, interest should be assessed at 2% over the relevant entire period as the damage should be regarded as evenly distributed : see MBP ( SA ) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 65 7 and Gersba c h at paragraph 511. I accept the submission of the defendant on this issue : see paragraph 114 . Past out-of-pocket expenses I accept that the relevant past out-of-pocket expenses are $6 , 618.54 . T his was accepted by counsel for the defendant in the event that the plaintiff ’ s account was accepted in the sense that the expe nses were reasonably incurred in those circumstances . Future out-of-pocket expenses The plaintiff claims future out-of-pocket expenses. The plaintiff claims attendance upon a psychologist once per month for two years at $200 per session. This appears to be based on the first report of Dr B : see Exhibit A page 28. Having regard to the second report ( Exhibit A page 36 ) , the question is whether this continues to be justified. Having regard to the second report of Dr B , in my view attendance upon a psychologist once per month for two years following the hearing having regard to the plaintiff ’ s serious psychiatric condition is justified. I allow this amount. The plaintiff also claims attendance upon a psychiatrist four times per annum at $400 per session for two years. In my view, having regard to the second report, this is excessive. I would allow attendance upon a psychiatrist two times per annum for two years. The appropriate amount should be calculated. An amount for medication at $40 . 0 0 per month for two years is sought . The second report only allows antidepressant medication for a further six months following the court hearing. I accept this opinion. T he appropriate amount should be calculated. Economic loss An amount has been claimed for a diminution in earning capacity of $150,000-$ 2 5 0,000. The evidence establishes that the plaintiff worked for five to six years for a bank and a department store following the assault before working for her husband as a partner in his business. The medical evidence shows no real diminution in the plaintiff's earning capacity . It is noted that the evidence states that recently because of her medication the plaintiff has been unable to work at required times in her husband's business. Although , of course , the court must look at earning capacity rather than earnings, I find that it is very unlikely that the plaintiff would have worked anywhere else other than her husband's business after the first five or six years of employment . There is no evidence that the plaintiff ’ s earning capacity for the five to six years after the assault was reduced . The expert evidence establishes that the pl aintiff continued to work full time in her husband's business thereafter . I am not satisfied in the light of this evidence that an amount should be allowed for a diminution in the plaintiff ’ s earning capacity. I also take into account the plaintiff ’ s current age. Aggravated/exemplary damages The plaintiff seeks $35,000 in ag gravated/exemplary damages. In Lamb v Cotogno [ 1987 ] HCA 47; ( 1987 ) 164 CLR 1 at [8] the High Court stated: “ aggravated damages, in contrast to exemplary damages, are compensatory in nature, being awarded for injury to plaintiff's feelings caused by ins u lt, humiliation and the like ” . If the plaintiff's factual account of the incident is accepted, I am satisfied that the plaintiff has suffered significant injury to her feelings and humiliation as a result of the brazen and violent nature of the sexual assault on her evidence. The defendant denied that the sexual assault occurred. Obviously, it is important to avoid double counting of damage s in the assessment of any aggravated damages with the assessment of general damages: State of New South Wales v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496 at [130]. Although the sexual assault only occurred on one occasion , it was serious and involved violent conduct if found in relation to a 16-year-old young woman. It was brazen if the plaintiff ’ s account is accepted. I would allow the amount of $2 5 ,000 for aggravated damages. Exemplary damages In my view , the facts of the case do not warrant an award of exemplary damages. None is sought in the plaintiff ’ s written submissions. The parties should calculate the total amount allowed for damages . Determination This is a difficult case. The plaintiff appeared overall to be lieve that a violent sexual assault had occurred . However, on the whole of the evidence I am not satisfied that her case has been established on the balance of probabilities having regard to the seriousness of the allegations made against the defendant. For the above reasons, I make the following orders: J udgment for the defendant against the plaintiff. T he plaintiff is to pay the defendant's costs of the proceedings as agreed or assessed. L iberty to the parties to seek a different costs order to that in (2) above within 14 days. ********** 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: 17 September 2021