AP v Constantino Di Pino (No 2) [2012] QDC 5

DISTRICT COURT OF QUEENSLAND CITATION: Ap v Di Pino (No 2) [2012] QDC PARTIES: AP (Plaintiff) AND CONSTANTINO DI PINO (Defendant) FILE NO/S: D3369/10 DIVISION: PROCEEDING: Trial ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 27 January 2012 DELIVERED AT: Brisbane HEARING DATE: 18, 19 August 2011 JUDGE: McGill DCJ ORDER: Judgment that the defendant pay the plaintiff $146,027.83, including interest of $6,879.50. CATCHWORDS: TRESPASS TO THE PERSON – Sexual Assault – assessment of damages PSYCHIATRIC INJURY – Economic Loss – whether aggravated and exemplary damages to be awarded Amalgamated Television Services Pty Ltd v Marsden (No. 2) (2003) 57 NSWLR 338 – followed. Backwell v AAA [1997] 1 VR 182 – followed. Daniels v Thompson [1998] 3 NZLR 22 – cited. Gray v Motor Accident Commission (1998) 196 CLR 1 – cited. Henry v Thompson [1989] 2 Qd R 412 – cited. Lamb v Cotogno (1987) 164 CLR 1 – cited. P v R [2010] QSC 139 – considered. Paten v Bale [1999] QSC 265 – followed. Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 – cited. Webster v Yasso [2002] QDC 206 – cited. XL Petroleum (NSW) Pty Ltd v Caltex Oil Australia Pty Ltd (1985) 155 CLR 448 – cited. COUNSEL: C. Heyworth-Smith for the plaintiff -- 1 of 25 -- 2 M. Black for the defendant SOLICITORS: Murphy Schmidt for the plaintiff John Bussa, Solicitor for the defendant [1] This is an action for damages for trespass to the person in the form of sexual assault. Liability is not in issue, but counsel for the defendant appeared and cross-examined the plaintiff and her witnesses, and made submissions in relation to quantum. There are issues as to the prior state, in psychological terms, of the plaintiff, which is relevant to the loss suffered as a result of any injury suffered by her, whether the injury was aggravated by another later incident, and whether the defendant is also liable for the consequence of any aggravation, whether the plaintiff has suffered any economic loss as a result of the psychiatric injury, whether aggravated damages should be awarded, and whether exemplary damages should be awarded. [2] Because the claim for aggravated damages was advanced in part by reference to the conduct of the defendant in the current, and earlier, proceedings involving him and concerning the plaintiff’s allegations, it is necessary to say something about the factual circumstances giving rise to the claim, and the history of these various proceedings, including what has happened with the pleadings in this proceeding. Conduct of the defendant [3] The plaintiff’s account (which was not contradicted) appears in a statement signed by her which she verified in the witness box and which became Exhibit 2. On 15 January 2002 the plaintiff was working at the defendant’s barber shop. The plaintiff was born on 2 December 1988: Exhibit 2 para 1. She was 13 at the time. At a time when there were no customers in the shop and they were sitting watching television in a back room, the defendant put his left arm around the plaintiff’s back and put his hand on her left breast on the outside of her top. She was scared and pushed his hand away, but remained sitting next to him. She rubbed one leg and complained that it was sore, and he put her legs across his lap, rolled up her jeans and began to massage her legs. After a time he began to massage the upper leg, and then to rub the outside of her jeans in the area of her vagina. Again, she pushed his hand away, and he began to rub the lower part of her legs again. After some time the defendant again put his hand on the outside of the jeans over her vagina and began to rub there, but he was then distracted when a customer came into the shop. History of proceedings [4] The defendant was charged and brought to trial in July 2003 on three counts of indecent dealing in relation to the incident of touching the breast and the two incidents of touching over the vagina. The defendant did not give evidence at the trial. He was convicted of the first count but acquitted of the other two. The trial also involved three counts of indecent dealing with a sister of the plaintiff; of these the defendant was convicted of one and acquitted of the other two. He was sentenced to a term of imprisonment. However, on appeal, the conviction involving the sister was set aside as being inconsistent with the verdicts of acquittal, and the sentence was reduced because the head sentence which had been imposed took into account both counts on which he had been convicted: [2004] QCA 39. -- 2 of 25 -- 3 [5] There was subsequently an application by the plaintiff for compensation under the Criminal Offence Victims Act 1994. That application was heard and determined, coincidentally by me, in March last year: [2011] QDC 32. There was no evidence that the money ordered to be paid by the defendant to the plaintiff on that occasion has been paid. On 19 July 2011 the defendant became bankrupt.1 At the beginning of the trial I gave the plaintiff leave to proceed under r 72: p 3. [6] Prior to the commencement of the present action steps were taken as required by the Personal Injuries Proceedings Act 2002 (“the Act”). At one stage during those steps the plaintiff filed an originating application seeking an order that the defendant attend a compulsory conference as required by the Act. The application was adjourned, and did not come on for hearing, no doubt because a compulsory conference was held without an order having to be made. The conference having failed to resolve the matter, the claim was filed on 16 November 2010. A notice of intention to defend and defence were filed one month later, and a reply on 22 December. A request for trial date was filed on 27 June 2011, so the matter has come on for trial quite quickly. [7] In his pleading the defendant did not admit the allegations contained in the statement of claim dealing with the facts referred to earlier, or that the plaintiff did not consent or that the defendant’s conduct was intentional, wrongful, indecent and of a sexual nature. The defendant went on to plead non-admissions in relation to some of the matters alleged in relation to quantum. The defendant did not deny the facts alleged in relation to liability; it follows that the defendant on the face of the pleading was not going to call or give evidence in relation to liability: UCPR r 165(2). However, the wording of the non-admissions did not comply with the requirements of UCPR r 166(4), with the result that under sub-rule (5) the defendant was taken to have admitted the allegations. This applied to some of the allegations in relation to quantum as well as the crucial allegations in relation to liability. [8] At the beginning of the trial, counsel for the plaintiff drew attention to the state of the pleadings, and to the fact that as they stood only one of the paragraphs of the defence where a non-admission was pleaded complied with the rules so that the non-admission was effective: p 7. In response counsel for the defendant sought leave to amend the pleading, but only in relation to that part of the pleading which dealt with issues of quantum, so as to ensure that effective non-admissions were pleaded to those allegations as to quantum which were not admitted: p 8. No application was made for leave to amend which would have involved withdrawal of any of the deemed admissions in relation to liability. The plaintiff’s legal advisers had been expecting the matter to proceed on quantum, and could not oppose the granting of leave to amend to the extent sought. [9] Counsel for the plaintiff submitted that the effect of what the defendant had done was to admit that the incident happened but only on the morning of the trial; however, that was not what occurred. In the original pleading there was a deemed admission because of a failure to comply with the requirements of the rules in relation to pleading a non-admission; that occurred in December 2010. That could have been an error, but there was no denial, that is, no positive case that these things did not happen. There was no change to the pleading in relation to liability on the morning of the trial, so there was never more than a deemed admission of the facts 1 Affidavit of Thompson filed by leave 18 August 2011 para 27. -- 3 of 25 -- 4 in relation to liability; all that happened on the morning of the trial was that the defendant did not seek leave to resile from that deemed admission. [10] It was submitted that there was only a very fine distinction between this and actually admitting that the defendant had done these things, but I think there is a difference. It was not suggested that the defendant had ever said that, in relation to liability, the pleadings did not produce the result in fact produced under the rules, or that the defendant’s intention was other than to put the plaintiff to proof in relation to liability, and it is difficult to see that the defendant has actually changed anything by what occurred on the morning of trial. All that happened was that the plaintiff’s expectation that at the beginning of the trial the defendant would seek to put her to proof in relation to liability was not vindicated. Ultimately, the matter is one of assessing damages, though as I have indicated aspects of the history of the matter were relied on in relation to aggravated damages. Effect of the injury [11] The plaintiff said that at the time of the incident she felt scared, and she later went to the toilet where she cried.2 She did not know what to do, and eventually returned to the shop but stayed away from the defendant for the rest of the day. She complained to her mother who asked her about what had happened, but then did not believe the complaint. She felt that her mother did not support her at all. She said that everything started going downhill, everyone knew what had happened and the depression started to set in. She said she would rarely go to school or go out, and started drinking mainly at weekends, and at the end of year 8 (2002) began to cut herself. She used knives or the point of her school compass to cut her arms. One night when she had been drinking she cut her upper left leg through the skin with a knife, producing extensive bleeding, which continued for almost three days, but she did not get medical treatment and she has been left with a large scar from it.3 [12] At one stage she moved to Victoria, where she was earning a lot of money but spending it on alcohol.4 She moved back to Queensland and did an apprenticeship in hairdressing, though she hated cutting men’s hair and could not bear the thought of them looking at her. She has, however, had boyfriends since 2002 when she was 13; by the end of 2003 she was living with her then boyfriend,5 and she became pregnant with her first child in early 2007. She said that in October 2008 she started seeing a psychologist whom she saw regularly for over a year and a half.6 In the past she had taken medication to treat her symptoms at different times and had had counselling. At the time of the trial she was not taking medication and not having psychological treatment or counselling. She had cut down on her drinking and she largely stopped self harming in about March 2010; there had been only one incident since then. She said that she continues to feel uncomfortable around unfamiliar people and in public places, and cannot bear to have someone touch her back. She is now married and has had another child, though she said she had difficulty with intimacy with her husband and does not like even him looking at her body. 2 See Exhibit 2, for these two paragraphs. 3 She did not say when this occurred, but apparently it was not until 2005: Exhibit 1 p 28. 4 In June 2006 she earned about $400 net per week in Victoria for a short time: Exhibit 1 p 336. 5 Exhibit 1 p 249: I refer to this further later. 6 Exhibit 2 para 60: in fact she was a social worker, she first saw her in September 2009 (p 28) and stopped attending after the seventh visit, on 2 July 2010: Exhibit 1 p 23, tscp p 38. -- 4 of 25 -- 5 Medical evidence [13] The plaintiff saw a psychiatrist, Dr Oelrichs, on 1 March 2010 for the purposes of a report.7 The plaintiff attended with her children, and the two-year-old proved something of a distraction during the interview. She reported having seen a specialist mental health social worker regularly for over 12 months and was then seeing her at least every three weeks.8 This was mainly to deal with bad dreams; she had had these since the assault, but the dreams were not as severe as they had been. On the other hand, she denied flashbacks. It follows from what was said to Dr Oelrichs that she had married in August 2009, having been with her husband from the latter part of 2007, and had been close friends since early 2004. Her second child was born in late January 2010.9 [14] At that stage she was taking Lexapro 10 mg daily. She did not feel safe at home at night if she was there alone, and was anxious about going out of the house, although she was able to drive a car without difficulty. She was still having significant quantities of alcohol. She told the psychiatrist that she had been uncomfortable with having the lights on when she and her husband were together, but this had now changed. She disliked having her back touched. She had been working with her mother in a hairdressing salon for the last three years, but more recently she had decided she wanted to be a stay-at-home mum and put her energies into making sure her children have a good life. The report notes that the plaintiff’s mother also suffered from depression. [15] She told Dr Oelrichs that she was only two classes off finishing her apprenticeship, but she had stopped working at the hairdresser; in her oral evidence she said that she had completed her apprenticeship and was a qualified hairdresser: p 27, p 33. She has no social life except with her husband, and has no friends. She said that she was estranged from her mother; she has some contact with her father but cannot go to where he lives because the defendant lives nearby.10 Dr Oelrichs noted that the plaintiff presented as a difficult historian; there are inconsistencies between the account given to Dr Oelrichs and other evidence before me. [16] Dr Oelrichs was of the opinion that the plaintiff suffered chronic post traumatic stress disorder, currently with residual symptomatology. She had personality vulnerabilities with a borderline personality construct, and she had been significantly affected by her mother’s not having fully supported her at the time of the assault. There was currently a moderate level of functioning. Counselling was seen as having been of significant benefit, and in the last 12 months her condition had improved, though she had residual difficulties. Dr Oelrichs recommended continuing treatment for another 12 months and suggested that the treatment progress was one of improvement. She thought that there was moderate impairment in aspects of daily living, concentration and adaptation, and marked impairment of social functioning. 7 The report is included in the bundle of documents which was tendered by consent, and became Exhibit 1, at p 6. 8 The social worker said that there were only three attendances prior to 1 March 2010, on 13 September 2009, 5 November 2009 and 3 December 2009: Exhibit 1 p 23. The plaintiff agreed that Dr Oelrichs correctly recorded what the plaintiff in fact told her: p 18. 9 The plaintiff said the first was born on 9 November 2007, and the second on 28 January 2010: p 17. 10 Confirmed in evidence: p 33. -- 5 of 25 -- 6 [17] From 13 September 2009 until 2 July 2010 the plaintiff attended counselling session with a social worker specialising in mental health issues, who provided a report dated 2 August 2010.11 The report refers to issues associated with sexual abuse, significant alcohol issues, very poor social supports, and ongoing relationship difficulties with her partner. It notes that the plaintiff struggles in her relationships with people, being very distrustful, does not respond well to people in authority and struggles to maintain employment. She had a long history of depression, reporting her first contact with Pine Rivers Mental Health Services during 2003 when she presented with low mood, self harming behaviours and anger management issues. She felt very unsupported by her family. After the birth of her second child she was started on anti-depressant medication with very good effect and her mood significantly improved, although the report noted that at the last contact she had stopped taking medication. Her mood appeared to be stable, but the social worker suspected that further medication would be helpful, presumably because she had seen a considerable improvement while it was being taken on this occasion. The social worker considered that her treatment would be long-term and that she required more than 12 sessions per year. The plaintiff ceased attending the social worker, rather than being discharged by her: p 38. [18] On 1 November 2010 the plaintiff saw Dr Harris, a plastic and reconstructive surgeon, for the purposes of a report: Exhibit 1 p 26. He reported that the left forearm showed only one faintly visible scar 2 cm in length, vertical, over some superficial veins. The right thigh had several superficial scars, only two of which were faintly visible, each 6 cm in length with fine lines running obliquely in the upper portion of the thigh. The left upper thigh had one significant scar just below the left inguinal region 11 cm in length, 5 cm of which was slightly raised and up to 1 cm in width. This was said to be five years old. It was regarded as the only significant scar,12 being palpable but not discoloured. It was mature and no further improvement was to be expected. This was the only one that concerned her, but he did not think that surgery could greatly improve it, although it might be possible to reduce somewhat the thickness of the central portion of the scar. On the basis of the AMA guides, he gave an estimate of whole person impairment due to disfigurement of 2%. Dr Harris did not give oral evidence. Prior psychological state [19] The plaintiff said that her parents separated when she was six or seven, and thereafter she generally lived with her mother (p 19), although for a time she and her older sister lived with her father, who was a very strict man: p 20. She preferred to live with her mother,13 but agreed that her father took more of an interest in her career than did her mother: p 27. She said that during 2001, while she was in Grade 7, she started drinking alcohol and, some months later, smoking cigarettes: p 21. When I questioned her about this, she repeated that she started drinking in Grade 7, and then about six months after the incident with the defendant she started experimenting with marijuana and other drugs. However, at p 22 she 11 Exhibit 1 p 23. 12 Contrast the scarring from self-harming described by Dr Harris in P v R [2010] QSC 139 at [20]. This indicates that there has not been as much self-harming as the plaintiff’s evidence suggested, or the rest of the self-harming was superficial. 13 On all the evidence, I do not accept that, but for the sexual assault, the plaintiff would have returned to live with her father in 2002. -- 6 of 25 -- 7 said that she started drinking alcohol after the incident with the defendant.14 The plaintiff conceded that she got caught smoking once at school while she was in Year 7 (p 45) and that she smoked after that: p 46.15 [20] On 10 July 2001 the deputy principal of the Stafford Heights Primary School referred the plaintiff to the Child and Youth Mental Health Service at the Royal Childrens Hospital, reporting a discussion she had had with the plaintiff, her sister and her mother.16 The note of what the deputy principal said referred to the plaintiff’s wanting to change school again, having been there for six months. The deputy principle thought that the plaintiff was manipulating her mother, who had not been well, and that she had friendship problems. There had been some intervention with boys allegedly name calling, but there was a suspicion of exaggeration. The mother was said to have welcomed the support and suggestion from the deputy principal for mental health service involvement concerning adjustment and behavioural issues presenting in the plaintiff. [21] Apparently a social worker then spoke to the mother. Unfortunately, most of this note has been blanked out, but there is a reference to contacting the mental health service if needed. Evidently there was no further contact. The records note that in August, September and October the mother failed to appear at scheduled appointments. A discharge summary17 said that the plaintiff and her older sister did not get on and had been fighting with each other, which was having an impact on the plaintiff who was becoming more frustrated with the current situation. The position had improved after the older sister had moved elsewhere. [22] There was further information from that deputy principal in a memo from a guidance officer to an acting deputy principal of Clontarf Beach State High School dated 5 March 2003 concerning the plaintiff.18 She had refused to go to the school since some time in July 2002. When asked in court to explain why she had refused to attend school after July 2002, she nominated having a fight with one of the girls there, though she added that there were lots of different reasons to do with why she did not go to school then: p 30.19 She started at Clontarf Beach on 23 October 2002 and saw out the school year, but did not return to that school at the beginning of 2003, and by early March was attending Bray Park State High School. [23] The memo included the following comments attributed to the acting deputy principal at Stafford Heights State School: “[The plaintiff] had learning difficulties. Mother appeared to have no control over her. [The plaintiff] appeared to have a huge chip on her shoulder. School developed an individual management plan to assist [the plaintiff] to control her behaviour. Behaviour concerns included: intimidation of others, anger problems, cigarette smoking, bullying and threatening others. A/DP spent a fair 14 See also Exhibit 2 para 34. 15 She also said she started drinking “quite a few months before I started smoking”: p 21. 16 Exhibit 1 pages 73-4. 17 Exhibit 1 page 78. 18 A copy of this document is among the records of the Pine Rivers Child and Youth Mental Health Service, Exhibit 1 p 305. 19 She later said she had told the girl about what the defendant did, which the girl did not keep confidential: p 32. -- 7 of 25 -- 8 amount of time with [the plaintiff], both as a support and for time out. A/DP always suspected there was something more to this girl – knowledge of human relationships seemed advanced for her age. A/DP also reported that [the plaintiff] had attended a number of primary schools and she had been in attendance at Stafford Heights State School (to her knowledge) on at least two different occasions. [The plaintiff] was frequently absent from school.” [24] I asked Dr Oelrichs whether she had been aware of this information in the material that she had seen; she did not recall that specific information, but said that she had picked up a picture like that from reading other mental health service material: p 63. The plaintiff gave evidence that by the end of Year 7 she had stopped going to school because she was working for the defendant in the barber shop in order to make money to help support the family: p 15. The plaintiff did not recall when she had started working in the latter part of Year 7 rather than going to school: p 31. I passed this on to Dr Oelrichs as well: p 64. Dr Oelrichs agreed that it was likely that the plaintiff had some not insignificant pre-existing vulnerabilities.20 [25] The plaintiff said that when she was in Year 7 her mother was making her boyfriends a priority and not her children: p 29. She claimed not to recall the older sister being back at home with the mother while she was in Year 7: p 30. At p 30 she accepted that she had a big attitude problem in Year 7. She agreed that during Year 7 she was away from school from time to time, apart from at the end of it, although she could not think of any particular reason for this: p 48. Other education records [26] There are some documents from other schools in the material, Exhibit 1: there are reports from the Norris Road State School for 2000, when the plaintiff was in Year 6: p 382. Her specific results varied to some extent but were generally satisfactory (i.e. average), and social and behavioural attitudes were rated as good or satisfactory. The general comments for semester one were that the plaintiff “needs to focus more on her school work, as she is easily distracted by others. Having some difficulty with two digit multiplication. Needs to spend more time on her spelling and recall of basic facts. Overall [the plaintiff] needs to apply herself more and then her results will improve.” The comments for semester two included that she “needs to put in a more consistent effort with her school work. She continues to be easily distracted and this effects [sic] her results. Continues to have difficulty with multiplication and division.”21 There were also a couple of reports for her German classes, which speak positively of her.22 There are no reports for Year 7, 2001, when she was at the Stafford Heights State School. [27] The plaintiff was enrolled at the Everton Park State High School from January to March 2002 and then at Tullawong State High School from 26 March 2002 until early August.23 The Everton Park State High School provided a mid-semester progress advice for semester one 2002 which unfortunately is not dated.24 Again most of the ratings provided were average, although in four subjects no assessments 20 Page 64: her response to that proposition was “most definitely”. 21 Page 385; there is nothing about attendance. 22 Exhibit 1 pages 386, 387. 23 Exhibit 1 p 305. 24 Exhibit 1 page 390. -- 8 of 25 -- 9 were given because of absences from class, or it was said to be hard to assess due to absences. Where behaviour was assessed, it was assessed favourably. The only particularly unfavourable assessment was in English, where she was said to be working at a very poor rate and achieving well below average standard. The only information from the Tullawong State High School were three assessment sheets for particular tasks in drama or dance class, which seem to have been satisfactory. [28] A letter from the principal of the Clontarf Beach State High School indicates that on 14 November 2002 the plaintiff was suspended from school for one day for participating in a water fight during class, notwithstanding a direction from the teacher to stop.25 She was said to have been warned on a previous occasion by the deputy principal regarding water fights. The plaintiff said that in the second half of Year 8 she started getting into a lot of fights at school (p 23) but she did not recall being suspended from the Clontarf Beach State High School: p 24. [29] A second semester report on the plaintiff from the Clontarf Beach State High School26 shows somewhat mixed results but generally she was said to be producing work that satisfied course requirements (i.e. was average). It reported, in respect of industry, either working satisfactorily or working consistently well in all subjects but one, while behaviour was said to be generally satisfactory in three subjects, good in one and excellent in one. Homework was either satisfactory or not applicable, while overall achievement generally satisfied course requirements except in one subject where the work was regarded as being of a low standard. It noted that there had been 13 days absent in the semester, 12 of which were unexplained. Given that she only started there on 23 October, this strikes me as a lot,27 but otherwise there is nothing which particularly stands out about the report. [30] At some time in early 2003 learning support at the plaintiff’s school tested her for various things, and found a spelling and numeracy age of 10 years, with a reading and comprehension age lower than this: p 303. This is the equivalent of year 5, and suggests that the plaintiff was not keeping up with her year group even prior to 2002. This corroborates the evidence of learning difficulties from the acting deputy principal at Stafford Heights. [31] There was a report from the Bray Park State High School for the period 28 January to 27 June 2003, which indicated sound achievement in science and studies of society and the environment, limited achievement in English and mathematics, and very limited achievement in another subject which was not identified.28 The comments from the different teachers are not all consistent. One described her as quiet and polite, and another as quiet and attentive in class, while a third said she was sometimes inattentive in class and needed to maintain focus, and a fourth that she had a negative attitude to work and study and that she completed only the minimum requirements for the course with attitude deteriorating over the semester. She was suspended from the Bray Park State High School on 13 May 2003 for five days, for threatening to use physical force on another student and disrupting the learning of other students by climbing through a classroom window.29 25 Exhibit 1 page 395; this was only three weeks after she started there. 26 Exhibit 1 p 304. 27 On the other hand, it is not attending school “rarely”, as she claimed in Exhibit 2 para 33. 28 Exhibit 1 page 401. She told the mental health service she failed all subjects except science: p 240. 29 Exhibit 1 page 400. She reported to the mental health service that she had been suspended for 10 days: p 210. -- 9 of 25 -- 10 [32] Apart from this, I have no information about the plaintiff’s education in 2003. In June she was talking about working part time and going to school part time (p 237), and by August she did not want to stay at school: p 244. However, she started at Hendra High School on 8 December 2003: p 247. [33] An (undated) interim report for Year 10 from the Bray Park State High School recorded mixed results.30 In science the ratings were mostly satisfactory, in English behaviour and attitude were regarded as satisfactory, but other ratings were “needing improvement” or “cause of significant concern”, and “significant concern” was also the common rating for health related fitness, mathematics and technology studies. On the other hand, the two matters rated in the life skills class, behaviour/attitude and individual progress, were both said to be good. There were said to be 32 days absent, which again is significant. There are no other records in evidence from 2004; there was some attendance at Bray Park State High School (p 129) and later at a TAFE in 2005: p 402, 3. Treatment after January 2002 [34] There is no indication that the plaintiff received any treatment until after an incident in about July 2002 when she alleges that she was raped by a boyfriend.31 There are a number of references in documents in 2003 to the plaintiff’s having received counselling from the Caboolture Child and Youth Mental Health Service (CYMHS) in the latter part of 2002,32 but the records of that service are not in evidence, nor have I found any documents from that service in the records which are before me. According to the memo from the school guidance officer of 5 March 2003 (p 305), she had been told by the plaintiff’s mother that the mother had organised counselling and psychological assistance through the Caboolture CYMHS, from the context in response to the rape, and that she was organising for this assistance to be transferred to Redcliffe. There was no reason to delay counselling in response to the January event until after the move to Caboolture in March 2002, when she started at Tullawong SHS, and the documents put the counselling well after March. The plaintiff gave evidence that she had counselling prior to the rape after the family moved to Caboolture: p 26. I do not accept this evidence. There is nothing in the documents to support it, and what is in the documents leads to the opposite conclusion. I do not accept that the plaintiff is reliable on this. In Exhibit 2 she put the counselling at the end of 2002 (para 31), which would have been well after the rape, and after she began self harming. That makes sense. [35] The records from the Pine Rivers CYMHS show that the plaintiff presented to that service on 3 March 2003, where an intake officer assessed her to be at high risk and in immediate danger of self-harm; she was admitted to the child and family therapy unit that day.33 She was discharged from inpatient care on 6 March, after she settled; a discharge summary records a principal diagnosis of adjustment disorder, and post traumatic stress features.34 She was discharged on medication, 50 mg of Luvox at night. There was some follow up by the Pine Rivers CYMHS later in March 2003, where an initial diagnostic interview form records the plaintiff saying that her depression was compounded following the alleged rape: p 155. She is 30 Exhibit 1 page 391-2. 31 This happened while she was at Tullawong SHS: p 27. 32 In Exhibit 1, for example, p 91, p 100, p 151. See also p 328. 33 Exhibit 1 p 154. See also p 132, referral form, and p 299, discharge summary. 34 Page 300. -- 10 of 25 -- 11 recorded as saying she became angrier and rude about this time, both at home and at school, and slashed her wrists with a knife in October or November 2002. She was said to view herself as being physically strong, tough and a good fighter: p 157. [36] The social worker noted that her physical appearance had improved since 3 March and currently she had no obvious signs of low mood or depression: p 158. There was said to be some preoccupation with personal safety and a strong reluctance towards externally imposed limit setting. It states that the plaintiff had made quite a rapid recovery from her depression, apparently as a result of taking antidepressant medication, and that she reported a close, strong and supportive relationship with her mother since the admission. There was, however, said to be vulnerability to further bouts of depression, and the plaintiff was at risk of school expulsion because of her behaviour. A diagnosis of adjustment disorder was recorded: p 160. [37] There are detailed progress notes while she was attending the Pine Rivers CYMHS. These indicate that in the early part of 2003 there were difficulties in her mother’s relationship, with the mother and her children being ordered out of the house by her partner, and this was upsetting the plaintiff a good deal.35 At one point she expressed the view that she had caused the mother’s relationship to break up: p 186. There were also problems at school; a note on 22 May 2003 said that she had been suspended from school for 10 days: p 210. The relationship with her mother evidently deteriorated again, and on 5 June 2003 she was described as very angry with her mother: p 229. In July 2003 she obtained a part-time job at Eagle Boys pizza, which was not interfering with her school work although that was still not going well: p 239.36 There was a note of a conversation on 26 August 2003, during which she denied suicidal ideation or self-harm, and described herself as enjoying fights; she had a boyfriend aged 18 who in the latter part of the year was attending the counselling sessions with her: p 244.37 She was then not wanting to return to school, and was seeking work. [38] There was a home visit to where she was living with her boyfriend, in a house with two other young men, on 12 December 2003: p 249. This followed the defendant’s trial, and there was reference to how this “went well”, although she was said to be a little fearful of possible repercussions when the defendant was released. She was described as bright and chatty, warm and relaxed. She had stopped using drugs and was not self-harming and was having minimal alcohol. She was trying to get work, although she was contemplating returning to school the next year. However, it was not all positive: “Still feels angry, like hurting people, and is restless/has trouble concentrating.” [39] The situation deteriorated after the plaintiff broke up with her boyfriend in February 2004, although by March they were reconciled. She had only phone calls to the Pine Rivers CYMHS in this period. On 22 March she denied self-harm or suicidal ideation and said she did not want to return for further counselling: p 251. However, she returned to the Pine Rivers CYMHS on 14 April 2005 when she was said to be cheerful and chatty, although problems of alcohol use, relationships, intrusive memories of the abuse by the defendant, and pervasive anger were identified: p 254. The plaintiff continued to have some contact with the Pine 35 There are a number of references to this: one is p 200. 36 See also Exhibit 2 para 79. 37 She was 14 until 2 December 2003. -- 11 of 25 -- 12 Rivers CYMHS until May 2004, when she refused to continue attending: p 175, which noted that she had developed a more positive self-concept. At that time she was not receiving medication: p 176. In May the file was closed: p 253. [40] On 25 June 2004 the plaintiff was referred by a GP to the Enoggera CYMHS. It does not appear that the plaintiff attended an appointment with this service, but there was some telephone contact. She was formally discharged on 25 August 2004; a discharge summary referred only to telephone contact and noted that during the last call she sounded euthymic, reported positive feelings and future plans, and was made aware of support options: p 112. There is a note that she advised that things had improved since her relationship started four months earlier: p 107. [41] In February 2005 someone from the Bray Park State High School contacted the Pine Rivers CYMHS seeking further contact with the plaintiff, who had retuned to school but was irritable and angry much of the time with little tolerance for teasing from other students: p 129. At this stage she was back living with her mother. There was some difficulty in arranging for an interview, but ultimately the plaintiff was seen by a social worker on 14 April 2005, who recorded that the plaintiff was seeking help to control her anger: p 163. There was no suicidal ideation or impulse to self-harm, she was getting recurring dreams of sexual abuse and there were sleep difficulties, but she reported no sexual difficulties with her boyfriend: p 165. She raised two issues, wanting to hurt people who have hurt her or her mother or brother, and wanting to have a baby: p 164. She was seen as keen to reduce her anger or change the way she expressed it: p 165. In an interview on 22 April 2005 she again stated that she was not suicidal or self-harming, although she was drinking heavily and still had anger and felt unsafe: p 255. There were a few more interviews, but in June she decided to leave counselling for a time, and the situation was the same in July, when she was living with her mother again: p 258. The file was closed on 11 August 2005 as no further service was required: p 181. [42] More recently there were GP notes in 2006 and 2008 referring to depression and fearfulness associated with the sexual abuse; the latter resulted in the referral to the social worker for counselling. Analysis [43] In the light of the evidence there were three matters which broadly speaking contribute to the plaintiff’s current psychological problems. The first was her unsettled background and home life, including the difficulties with her mother and the difficulties with the mother’s partners. The second was the actions of the defendant the subject of this proceeding, and the third was the incident in about July 2002 when the applicant was raped by her boyfriend. It appears from what she said that on this occasion the boyfriend took advantage of her intoxication: p 30. [44] There is relatively little information about the position prior to January 2002, but such material as there is supports the view that the family situation of the plaintiff was most unsettled, and that even before this time she was having difficulties with authority figures and difficulties at school. I find that the plaintiff was smoking cigarettes and drinking alcohol to some extent during 2001,38 was getting into 38 This resolves the inconsistency in the plaintiff’s evidence on this point. There was clear evidence of smoking then, and the plaintiff said she was drinking before she was smoking. -- 12 of 25 -- 13 trouble at school and not performing well at that time. I think it is of some significance that the first referral to a mental health service came from the school, although it does not appear that the mental health service actually saw or even spoke to the plaintiff at that stage, so there is no expert evidence about any psychiatric condition or personality features. It is also significant that the applicant had effectively given up school early towards the end of 2001, as a by-product of her unsettled home life, although that was also consistent with a relatively large number of unexplained absences during that year, which indicate that even before January 2002 she was not an enthusiastic or successful student. [45] There was no documented referral to any mental health service in the period between the incident involving the defendant and the incident involving the boyfriend; I find that the first contact for counselling did not occur until after the incident involving the boyfriend and probably after she began self harming. There had been already one change in school that year, and subsequently the plaintiff stopped attending school as a result of conflict with a girlfriend whom she had spoken to in confidence about the abuse, and who she believed had subsequently spoken to others about it: p 32. The fact that an effort was made for the plaintiff to obtain counselling after the second incident indicates that her problems were made worse by it, although it is unfortunate that the records of that health service in relation to that counselling are not before me. The self-harming started at the end of that year, rather than directly after the abuse: Exhibit 2 para 35 and p 25. There was, however, no further reference to self-harming after mid 2003 in the records of the CYMHS, and she denied self-harm on at least five occasions.39 [46] The impression that I received from the records of the Pine Rivers CYMHS in particular is that in 2003 and 2004 when the plaintiff was seeing that service she was doing reasonably well. My impression from reading the notes is that difficulties in the relationship with the mother, and flowing from the mother’s relationship with her then partner, and later the plaintiff’s unsettled relationship with her boyfriend, were more closely associated with those periods when the plaintiff was having difficulty coping than the events of 2002, although reference to symptoms associated with the defendant’s actions do appear from time to time. [47] Dr Oelrichs’ report referred to the material from the mental health services elaborating in detail upon the setting in the plaintiff’s life and other stressors in very close proximity to the sexual assault; she expressed her opinion that the plaintiff’s ability to cope had been significantly affected by the nature of the assaults, but also by her perception that her mother had not fully supported her at the time.40 In oral evidence she expressed the opinion that the difficulties with the family prior to the incident made her vulnerable: p 56. As to whether the pre-existing vulnerabilities had made her situation worse after the incident with the defendant, Dr Oelrichs thought that that would be difficult to say, although it appeared that over the last few years a relatively stable environment had ameliorated some of those difficulties: p 57. She agreed that the rape was at least a contributing factor to the plaintiff’s psychological state, though she thought the defendant’s behaviour had been pre- 39 26 August 2003 (p 244), 12 December 2003 (p 249), 22 March 2004 (p 251), 14 April 2005 (p 163) and 22 April 2005 (p 255). In contrast, in Exhibit 2 she said she was “still … self harming in November 2007.” See also para 64. 40 Exhibit 1 p 20. -- 13 of 25 -- 14 occupying the plaintiff more: p 57. She said that the plaintiff’s depression was exacerbated by the rape: p 59. [48] Dr Oelrichs was not prepared to distinguish between the effects of the two events in percentage terms, but she expressed the opinion that the defendant’s assault would have had a greater effect upon the whole picture: p 60. She agreed that it was a combination of factors that led to the plaintiff’s presentation today: p 65. When commenting on a hypothetical situation where the defendant’s conduct had not occurred but the rape by the boyfriend had, she could not say whether this would have led to post traumatic stress disorder, but thought it unlikely that the plaintiff would have been in those circumstances as bad as she is: p 65. She also thought that had it not been for the rape her presentation might not have been quite as severe, but she was more guarded about that opinion: p 65. Dr Oelrichs supported the proposition that, notwithstanding the inherently more intrusive nature of rape than the relatively superficial touching in which the defendant engaged, because of the different surrounding circumstances the former had a less significant and lasting adverse psychological effect on the plaintiff, and I accept that that is the case. [49] I accept that as a result of the defendant’s behaviour the subject of the proceeding the plaintiff suffered post traumatic stress disorder which is chronic and which has produced varying symptoms over the years since the incident, and that by March 2010 she had residual symptoms which were controlled by medication and at times counselling. I accept that by 2010 the effects of the rape had probably largely subsided, so that there was little ongoing effect from it. On the other hand, it does seem to me that the effects of the rape were more significant in the plaintiff’s life in the latter part of 2002 and 2003, and contributed to the disruption to her schooling. Her condition was then further aggravated by her unsettled home life due to the mother’s difficulties with her then partner. During an interview on 10 March 2003, at one point the plaintiff identified two people she would like to see hurt: the boy who raped her, and the defendant: p 140. That was the order in which they were recorded by the social worker in the notes. [50] As to the effect on her education, my distinct impression is that the plaintiff was having significant problems at school prior to January 2002. She was not doing as well as her overall year group, and had behaviour problems and problems with accepting authority within the school. There is no evidence that the situation was significantly worse in the first half of 2002. In the second half of 2002 it does appear that things were worse, as I have explained. I do not accept the case advanced for the plaintiff that she was doing well at school until the defendant’s conduct caused her to perform badly and in that way disrupted her education. By 2003 the plaintiff had a significant problem with anger and with external authority, which were disrupting her education, as was her increasingly serious relationship with her then boyfriend, with whom she was living by the end of the year. [51] One issue which arose was whether the defendant’s behaviour was a cause of the subsequent rape, on the basis that it was the defendant’s behaviour which led to the plaintiff’s drinking too much and taking drugs, which in turn was a contributing cause to the rape, or at least provided the context within which it occurred. The evidence, however, indicates that the plaintiff was drinking during 2001, and I am not persuaded that there was any significant increase in alcohol consumption prior to the time of the rape. Given that she was drinking and smoking when she was 12, and that she knew her mother used drugs, she may well have been experimenting -- 14 of 25 -- 15 with drugs at 13 anyway. The CYMHS notes suggest that significant alcohol abuse was an issue that only arose somewhat later than mid-2002.41 Accordingly I find the rape was an independent intervening event. [52] I should say something about the credibility of the plaintiff. There was no particular challenge to her credibility on the part of the defendant, but it will be apparent from various matters that I have mentioned in the course of these reasons that there were several occasions where what she said in her evidence, particularly in Exhibit 2, was inconsistent with other material, particularly contemporaneous documents, or internally inconsistent. As a general proposition, what is recorded about the plaintiff in the notes forming part of the medical records of the Pine Rivers CYMHS in particular do not tally with her description of her problems. One example of this is that she claims to have difficulty with any form of intimacy and dislikes even her husband looking at her body: paras 71, 72. Yet it is clear from the history revealed by those notes that, whatever else the plaintiff suffered as a result of what was done to her, it did not include sexual aversion. [53] In May 2003 her mother was complaining about the plaintiff engaging in risk-taking behaviour involving young males (p 197) and on 15 May 2003 the plaintiff told a social worker that she had cut her wrists with a knife “after feeling upset by her boyfriend”: p 206. On 29 May 2003 there was an interview with a social worker during which the plaintiff spoke about living at the house of her boyfriend, and, in response to the question of what she would do if that boy began to see another girl, responded that she would move out and live with an ex-boyfriend and his family: p 220. On 3 September 2003 the plaintiff saw her social worker with her then boyfriend in attendance (p 244; p 245) and by December 2003 she was living with him: p 249. On 8 June 2005, after some problems with that boyfriend, she was contemplating moving out but told the social worker she planned to get another boyfriend as soon as possible: p 257. [54] It is clear that there were problems in the relationships with boyfriends, and from early 2004 whether the plaintiff was doing well or badly seems to have more to do with the current state of the relationship with her then boyfriend than anything else. In an interview on 14 April 2005 the plaintiff reported no sexual difficulties with her then partner: p 165. It may be that in 2003 part of the reason for living with her boyfriend was to avoid living with her mother, whose own problems with her then partner were causing a good deal of disruption in her own and the plaintiff’s lives. There are references in the notes to difficulties in relationships with boyfriends, some associated with mutual violence, but no references to any sexual problems. In the absence of any such material from the contemporaneous notes, I cannot accept the plaintiff’s evidence about this in Exhibit 2 as reliable. Overall, I did not regard the plaintiff as a reliable witness and am wary about accepting her evidence, except where it is corroborated or inherently plausible. [55] I should say something about the records which were put before me as Exhibit 1. There was very little reference to the CYMHS records during the trial, and I did not have the opportunity during the trial to become familiar with them.42 I did identify one or two documents which were raised with the plaintiff in cross-examination, but obviously the great bulk of this material was not covered in cross-examination, and 41 The first reference I noted to alcohol use as a problem was in April 2005. 42 Exhibit 1 has 306 pages of “medical records”. -- 15 of 25 -- 16 the inconsistencies between what is recorded in it and what the plaintiff said in her evidence emerged only after I came to work my way through this evidence in the course of preparing my judgment. Given that this material was tendered by counsel for the plaintiff, I consider that I am entitled to use it in this way, even though the matters to which I have referred were not raised specifically with the plaintiff in cross-examination. The documents were tendered subject to two experts being called to give evidence, and not objected to: p 5. No restrictions were placed by either counsel on the basis on which the contents of the documents were in evidence, and in my view I am therefore entitled to use them for any purpose which is relevant to the determination of the matters in issue. One of those matters is, obviously, how serious the plaintiff’s condition is; another is her credibility. [56] In my opinion there are two ways to take into account the effect of the plaintiff’s other problems. One is to compare her current state with a hypothetical situation where the defendant’s actions had not occurred, that is a situation where the plaintiff with her pre-existing vulnerabilities was subjected to the stressors which subsequently occurred, the rape and the subsequent problems with the mother’s domestic situation. There were problems with the relationship with the mother anyway, and it is apparent from the notes I read that the relationship with the mother fluctuated considerably over the period from at least 2003 on. It is not the case that what was previously a good relationship with the mother was substantially and permanently changed as a result of the mother’s rejection of the plaintiff’s account of the defendant’s behaviour. I accept that the plaintiff is now significantly worse off than in that hypothetical situation in terms of her psychological condition, but it is likely she would have had some psychological difficulties anyway, and there may well have been either some post traumatic stress disorder or some other, less serious, psychological condition as a result of the independent stressors following on the pre-existing vulnerabilities [57] Alternatively, one can look at the current situation overall, and try to analyse it as being due in part to the effects of the abuse, and due in part to the pre-existing and subsequent independent issues, making some allowance for each of these factors. I expect that in principle the former approach is the preferable one; it is important that these approaches are not applied cumulatively. [58] There is also the consideration that, for the reasons I have expressed, I am not prepared to accept the plaintiff’s account of the seriousness of her problems at face value. This may well also have affected the reliability of Dr Oelrichs’ opinion as to the seriousness of her condition, though my impression, on a careful consideration of Dr Oelrichs’ evidence, is that she was appropriately cautious about the situation. In circumstances where the plaintiff was being medicated but was not receiving regular counselling, she nevertheless described the plaintiff as suffering only residual symptoms of the chronic post traumatic stress disorder. [59] I find the plaintiff did not suffer psychiatric injury in the form of post traumatic stress disorder as a result of the actions of the defendant. Her condition was made worse, at least for a time, by later independent events. The plaintiff’s condition is probably significantly worse than it would have been had the defendant’s abuse not occurred, but she would probably have had significant psychological problems anyway because of other factors. The plaintiff’s condition has improved as a result of treatment, a more settled life and greater maturity, and it is likely that it will continue to improve. -- 16 of 25 -- 17 [60] I was referred to two decisions involving assessment of damages at common law for sexual assault,43 and am aware of one other of my own. In Paten v Bale [1999] QSC 265 the plaintiff had been sexually assaulted on five occasions over a two-year period, when she was aged from almost seven to almost nine, by a family friend who was living nearby. Shortly before the trial she was diagnosed by a psychiatrist with chronic post traumatic stress disorder mostly due to that abuse, chronic depressive disorder due partly to that abuse, a sexual aversion due to the abuse, and an unspecified personality disorder probably partly due to the abuse. She was in need of treatment indefinitely and there were likely to be relapses of depression which might require hospitalisation, with various aspects of her functioning adversely affected and little prospect of improvement over a 10-year period. General damages were assessed at $35,000, of which half was attributed to the 10-year period up to trial. [61] In P v R [2010] QSC 139 the plaintiff was sexually assaulted in six incidents when she was eight. She was diagnosed as suffering significant psychiatric illness with a guarded prognosis, including significant depression. The plaintiff had attempted suicide on three occasions and had received psychiatric treatment, having been admitted to mental health facilities on four occasions since the age of 16, including an admission for six weeks in the year of the trial. She had been self-harming and suffering from an eating disorder, and she was left with extensive scars which involved a large area of the body surface more obvious to onlookers. General damages in that case were assessed at $80,000. Again, half of that amount was attributed to past loss, which covered a period of about 12 years. That the plaintiff’s psychiatric condition seems from the reasons to have been significantly worse, the scarring was certainly significantly worse, and there was no mention of other vulnerabilities or stressors. [62] In Webster v Yasso [2002] QDC 206 the plaintiff claimed damages for a rape from a defendant who had previously been in a sexual relationship with her, but from whom she had separated. There was some physical injury in the form of bruising, and she developed a generalised anxiety disorder which was aggravated by some subsequent property damage inflicted by the defendant. The plaintiff suffered nightmares, had sleeping difficulties, remained very anxious, had difficulty in establishing social relationships, had become withdrawn and been left with a generalised feeling of insecurity, and had difficulty in obtaining employment. I assessed damages at $500 for the physical injury, $15,000 for the psychological injury, and I also allowed $20,000 for violation of personal integrity.44 This is not a factor which I have seen mentioned in other cases where damages have been assessed, and it is I think more directly related to the immediate nature of the trespass than the consequences in terms of psychological injury. I accept that in terms of her psychological injury the present is a worse case, but the nature of the actual trespass, an indecent touching on the outside of clothing, was obviously a much less significant violation of her personal integrity than a violent rape. [63] In the light of all the evidence, if damages were to be assessed for the whole of the plaintiff’s current psychiatric state I would assess them at $40,000, but this figure should be reduced by $15,000 to allow for the hypothetical psychological state of 43 The Civil Liability Act 2003 s 61 does not apply because the injury arose prior to 1 December 2002. 44 I referred to Fleming “The Law of Torts” (9th edition 1998) p 29. See also McGregor on “Damages” (15th edition 1998) para 1615. -- 17 of 25 -- 18 the plaintiff, assessed on the basis of probabilities, had the defendant’s conduct never occurred.45 That produces a figure of general damages of $25,000, to which I would add $5,000 for violation of personal integrity, to produce an award of general damages of $30,000. Twenty thousand dollars of this is attributed to past loss, and I allow interest at 2% for 10 years, $4,000. Aggravated damages [64] Aggravated damages are awarded to compensate a plaintiff for increased mental suffering due to the manner in which the defendant behaved.46 Aggravated damages can be awarded because of the circumstances in which the tort is committed, or by the defendant’s conduct thereafter. For example, in Henry v Thompson [1989] 2 Qd R 412 aggravated damages were awarded in relation to an assault because in the course of the assault of the defendants urinated on the plaintiff, a particularly degrading and humiliating act. Here there was nothing in the circumstances under which the assault occurred which made it a particularly humiliating or hurtful example of such behaviour; I have already allowed a component of damages for violation of personal integrity which I think is properly treated as part of general damages rather than aggravated damages, and which covers the features that it was a trespass of a sexual nature on a child. I do not consider that the fact that the plaintiff was vulnerable, having come from a broken home, justifies an award of aggravated damages; it is relevant to the assessment of the severity of the psychiatric injury suffered by her. [65] The fact that the defendant pleaded not guilty at his trial is not a factor which should result in an award of aggravated damages: Paten v Bale (supra) at [16]. Similar considerations also exclude aggravated damages because of the appeal against the conviction. In the same way, he was entitled to contest the application for criminal compensation, as he did; there was no dispute about liability, and the defendant’s involvement was essentially directed to making submissions as to the appropriate award of compensation, which he was entitled to do. There was nothing in the conduct of the criminal compensation proceedings on behalf of the defendant which in my opinion justifies an award of aggravated damages. [66] The same applies to the conduct of the civil proceedings. The case on liability was never denied on the pleadings, and there was no resiling from the deemed admission. It was submitted that the case was similar to P v R (supra), but in that case a particular significant feature about the conduct of the litigation by the defendant was that at an early stage, when he was represented, terms of settlement between the parties were reached but he refused to sign a formal settlement agreement: [13]. The other matters referred to there in making an award of aggravated damages were the fact that it was a sexual assault on a child, a matter I have covered already, and the defendant’s denial at the time that he committed the assault which was accepted by the plaintiff’s father, leading to an irreparable split in their relationship: [41]. This was said to have contributed to the psychological injury and therefore presumably was taken into account in the damages assessed in respect of that psychological injury; in those circumstances it ought not to have been of any great significance in relation to an award of aggravated damages. In the 45 Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638 at 643. The plaintiff is entitled to be compensated for the extent to which she is worse off as a result of the defendant’s actions. 46 Luntz “Assessment of Damages for Personal Injury and Death” (4th edition 2002) p 71. -- 18 of 25 -- 19 present case the plaintiff’s evidence is that the mother disbelieved the plaintiff spontaneously, and Exhibit 2 contains no reference to any denial by the defendant: para 28. The case is therefore distinguishable. [67] Reference was also made to the correspondence between the parties, in the course of litigation: Exhibit 4. Initially the plaintiff’s solicitors proposed the appointment of a psychiatrist as a joint expert, which was resisted. In a letter of 6 November 2009 the plaintiff’s solicitors referred to the obligations to have a single expert under the UCPR and in Supreme Court Practice Direction 2 of 2005, although they had already filed and served an originating application in this court. In the event, there was no agreement from the defendant on the appointment of a joint expert, the plaintiff obtained a psychiatrist’s report, and no psychiatrist’s report was obtained on behalf of the defendant. At one stage there was some correspondence from the defendant’s solicitor pointing out, correctly, that under the Act their client had a right to obtain an independent medical examination at his expense, but ultimately the point was not pressed. There was nothing in Exhibit 4 which reveals anything in the defendant’s conduct of the litigation which would justify an award of aggravated damages. [68] Reference was also made to the fact that an originating application was filed in order to get a compulsory conference held; it is quite clear from the letter from the plaintiff’s solicitors of 6 November 2009 that that application was filed prematurely; it was served under cover of a letter proposing a consent adjournment to a date to be fixed. The fact that the plaintiff’s solicitors brought a premature application cannot found an award of aggravated damages against the defendant. [69] Finally, there was evidence that proceedings had been taken in the Family Court, leading to an order for the transfer of the defendant’s assets to his wife,47 and it was submitted that this was an attempt to frustrate any judgment in these proceedings. I do not think it is for me to question the validity and appropriateness of proceeding in another court, particularly in circumstances where not all the parties to those proceedings are before me. I will not order aggravated damages on this basis. [70] Overall, I am not persuaded that on the facts of this case an award of aggravated damages is justified. Economic loss [71] The plaintiff’s case in relation to economic loss was based on the propositions that her education had been significantly disrupted as a result of her psychiatric injury, and that that injury in itself had made it more difficult for her to obtain and maintain employment. She said that she had difficulty settling into any job because of difficulty relating to unfamiliar people, and a mistrust of people in authority, and she also has difficulties in travelling by public transport, and in lifts. The plaintiff has had a variety of jobs, perhaps starting with the Eagle Boys pizza shop job, but most of them have not lasted very long. She was able to work long enough to complete her hairdressing apprenticeship, essentially because she was working in her mother’s salon, which was effectively protected employment. 47 Affidavit of Thompson para 11. -- 19 of 25 -- 20 [72] The plaintiff said that she had had ambitions to become a police officer or go into the army, and it was submitted that had she not been assaulted she would have completed her education and become a police officer. As I have indicated, I do not accept that the plaintiff’s education was progressing well up until the assaults, and then did badly because of them; the position is more complex. The plaintiff had problems with her education, including in her behaviour prior to the defendant’s assaults, and the plaintiff had problems with people in authority at that time as well. She was regularly taking time off school. Further, had the assaults never occurred, the plaintiff’s education would probably have been significantly disrupted anyway because of the rape and the problems faced by the mother in 2003 and the consequent disruption to the plaintiff’s living arrangements, and the relationship which developed with a boyfriend thereafter. [73] I am not persuaded that but for the defendant’s assaults the plaintiff would have become a police officer, or indeed that the plaintiff would probably have completed anything like a normal education. I accept that the plaintiff has had more difficulties, and would probably have otherwise obtained more education than she did. I think on the whole that it is likely that the plaintiff would not have been a particularly marketable employee anyway, but the range of jobs open to her and her ability to obtain and hold suitable employment would have been greater had it not been for the psychological consequences of the defendant’s assaults. [74] There is also the consideration that the plaintiff has, to some extent, in the past been in a position where she would not have been working anyway because she was the mother of a young child; since her children were born she has not been seeking employment except with her mother (p 19), and she has taken the attitude that, if she wants to work, she can work for her mother: p 27. [75] There is little evidence available as to the plaintiff’s past employment. In the middle of 2006 she was able to obtain reasonably well paid employment in Victoria, although she said that this just led to heavy drinking: Exhibit 2 para 56. It does at least demonstrate some continuing capacity to obtain reasonably remunerative employment, although it seems that at the moment her life is more settled because she has responsibility for looking after her two children, something which was likely to interfere with her search for work anyway. There was no case made out and I do not accept that the plaintiff would not have had her children but for the defendant’s assault. In the circumstances I do not think that the plaintiff is fully exploiting such residual earning capacity as she has, but I accept that that earning capacity is more limited than would have been the case had the assaults not occurred. On the other hand, she would probably have remained at school longer, so the period during which she was seriously looking for work would have been less. All I can do is make an assessment on a global basis, and on that basis I allow $15,000 for past economic loss. [76] With regard to future economic loss, the position I think is much the same. The plaintiff as a mother would have had periods when she was not working anyway, and I think it likely that as time goes on and the plaintiff becomes more mature, and with the assistance of additional treatment, her condition will settle further, and have less of a deleterious effect on her earning capacity. She is still only 23. [77] In Paten v Bale (supra) the plaintiff received $120,000 for future economic loss, in circumstances where she still had some earning capacity, and indeed had worked -- 20 of 25 -- 21 rather more than the present plaintiff, though most of the time she had been unemployed. That plaintiff may have had somewhat better prospects than the present, but on the other hand it does not appear that that plaintiff would have had any particular difficulties had the assaults not occurred; in her case, she was so young it was probably very difficult to tell. [78] Part of the difficulty is that at times when the plaintiff does receive some treatment, either by medication or through counselling, her condition improves to the point where she does not think that she needs to continue the treatment, and she then goes off it, and in time her condition deteriorates again: p 45. I suspect that if the plaintiff were willing to undertake treatment more consistently her condition would improve further, and that would also facilitate her prospects of employment, to the extent that she was seeking it. I think it likely therefore that through a combination of the attenuation of the symptoms over time and with greater maturity, and an increased willingness to engage with treatment regimes, the impact on the plaintiff’s employment prospects will diminish. [79] In the present case the hypothetical future earnings of the plaintiff had the assaults not occurred are essentially unknowable, though I suspect the most probable outcome for the plaintiff in those circumstances is that at times she would have been a stay-at-home mother, and other times she would have worked, either full-time or part-time, as a hairdresser. I accept that that would probably have involved more work than she is likely to obtain now, but again it is very difficult to know just what is going to happen with the plaintiff, particularly in circumstances where it is not known to what extent her condition will improve over the years (nor I suppose the effects of other supervening events in her life). Again all I can do is make an appropriate allowance by way of a global award, and I allow future economic loss of $80,000 as a global sum. Other matters [80] I allow 9% of past and future economic loss for loss of superannuation. The plaintiff claimed special damages for pharmaceutical expenses and travel expenses of $432.93 and $165.40. The defendant submitted that these amounts should be discounted because of the contribution to the problems the plaintiff had of matters for which the defendant was not responsible. It is really a question of whether the plaintiff would probably have undertaken this sort of care and medication anyway. On the whole I think it is appropriate to allow these as past special damages without deduction, together with interest at 3% over 10 years. [81] The plaintiff also claimed $20,800 for future psychological treatment, as recommended by Dr Oelrichs. The calculation was based on an assumption that Dr Oelrichs was recommending three to four sessions per week when, as I read her report (p 21), she was talking about a session every three to four weeks. The social worker suggested weekly sessions for a period of three months or more, followed by fortnightly sessions for two months, and then less frequently: p 40. Assuming a charge of $100 for one hour, this suggests $2,500 for the first 12 months, but on the whole I think that if the plaintiff undertakes regular treatment a more realistic figure will be $5,000. [82] The difficulty is in knowing whether the plaintiff will actually undertake such treatment; her history is one of discontinuing treatment when she felt she did not -- 21 of 25 -- 22 need it anymore, rather than being discharged by those who were treating her. On the other hand, as the plaintiff becomes older and more mature, it is more likely that she will recognise the value of treatment, and undertake it, and I have assessed future economic loss on that assumption. For that reason, no great discount should be made for the possibility that the plaintiff will not undertake the treatment, and it is sufficient to say that, if I treat the figure of $5,000 as covering travelling expenses for the treatment as well, and the possibility of future medication or medical expenses, that would cover any appropriate deduction. On the whole therefore an allowance for future treatment of $5,000 is reasonable. Exemplary damages [83] The plaintiff also claimed exemplary damages. Given the nature of the defendant’s conduct, it would ordinarily be appropriate for an award of exemplary damages to be made, subject to certain considerations. The first is that, where the relevant conduct constituted a criminal offence and the defendant has been convicted and punished in respect of that conduct in that way, it is not appropriate for him to be punished again by way of an award of exemplary damages.48 There was no dispute about the applicability of that proposition to the incident of touching the breast, in respect of which the defendant was convicted and sentenced. In relation to the other conduct of which the plaintiff complains, the defendant was tried and acquitted. The plaintiff submitted that an award could and should be made in relation to that part of the defendant’s conduct. [84] The effect of an acquittal for the purposes of such civil proceedings has been considered in New Zealand,49 in a decision which has been noted without disagreement by the High Court;50 in essence, it was also seen as a bar to a proceeding to recover exemplary damages. That, however, was a case where an action for compensatory damages could not be brought, and the question was whether a proceeding seeking only exemplary damages was an abuse of process. The context provides a basis for distinguishing that decision; I do not need to decide if I should follow it, for the reasons which follow. [85] Exemplary damages are assessed for the purpose of punishing the defendant, so it is appropriate to have regard to the financial position of the defendant, with a view to assessing the extent to which judgment for any particular amount will be a punishment to him.51 There was little evidence of the financial position of the defendant; all I know about him is that at one time he worked as a barber in a country town, that at one time he was co-owner with another of two parcels of land of unknown value, and that he is now bankrupt, being apparently unable to satisfy the order for criminal compensation in the sum of $22,500.52 In those circumstances, I think that I should assume that his financial position is poor. [86] It was submitted on behalf of the plaintiff that in the absence of evidence from the defendant as to his financial position and the effect any particular award of damages 48 Gray v Motor Accident Commission (1998) 196 CLR 1. 49 Daniels v Thompson [1998] 3 NZLR 22. 50 Gray v Motor Accident Commission (supra) at [47]. 51 XL Petroleum (NSW) Pty Ltd v Caltex Oil Australia Pty Ltd (1985) 155 CLR 448 at 472. 52 Affidavit of Thompson paras 10, 21, 27. The land had site values of $275,000 and $405,000: paras 36, 38. Pursuant to an order of the Family Court, his interests were transferred to his wife in 2010: ibid paras 11, 13, 14. -- 22 of 25 -- 23 would have on him, I was not justified in making any assumption that any particular level of compensatory damages would have any punitive effect, even to the extent of assuming that it would have the effect of an award of that sum on an average individual. However, in my view the correct approach is that in the absence of evidence I should assume that the defendant’s financial position is average. If a plaintiff seeks an assessment of damages on the basis that a defendant is particularly well off and therefore requires a larger award in order to achieve an appropriate punitive effect, the onus is on the plaintiff to show that rather than on the defendant to show to the contrary. I accept that if a defendant seeks to rely on the proposition that his financial position is unusually modest there would be an evidentiary onus on him. In the present case, there is evidence, put before me by the plaintiff. [87] Another issue which arises in these circumstances is how exemplary damages are to be assessed, in circumstances where there are significant compensatory damages payable anyway. If a case involves conduct on the part of a defendant which deserves punishment so as to justify an award of exemplary damages, are such damages awarded as an additional sum which in itself is intended to function as a punishment of the defendant for the relevant conduct, or is it necessary to take into account the extent of compensatory damages to be awarded, and award an additional amount by way of exemplary damages only if and to the extent that the award of compensatory damages would not be enough to stand as an appropriate level of punishment of the defendant for the conduct in question? [88] At the trial I drew attention to the decision of the Court of Appeal in Victoria in Backwell v AAA [1997] 1 VR 182, where it was held that the latter approach was appropriate on the basis of English authorities.53 I invited submissions in relation to whether I should follow that decision, and written submissions were subsequently received from counsel for the plaintiff, to the effect that I should not follow it, but award an appropriate amount for exemplary damages assessed without regard to any compensatory damages assessed. [89] It was submitted by counsel that the approach adopted in Backwell was inconsistent with the rejection by the High Court in Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 of the restriction placed by the House of Lords on awards of exemplary damages in Rookes v Barnard [1964] AC 1129, and that all that had been said in the High Court in relation to the statements of Lord Devlin in Rookes v Barnard about the assessment of exemplary damages was that in XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 Gibbs CJ at 456 had said that it was appropriate to consider the risk that exemplary damages might amount to a punishment greater than would be likely to be imposed if the conduct were criminal, and that the jury should be fully aware of the danger of an excessive award. Reliance was also placed on the statement by Brennan J in the same case at 471, that there was no necessary proportionality between the assessment of the two categories of exemplary and compensatory damages, and that the considerations that enter into the assessment of them were quite different. [90] Reference was also made to what was said about exemplary damages by the High Court in Lamb v Cotogno (1987) 164 CLR 1, and Gray v Motor Accident Commission (1998) 196 CLR 1. It was submitted that no reference was made in either of those decisions to any such principle as was upheld in Backwell, and that 53 As to which, see McGregor on Damages (15th Ed. 1988) para 428. -- 23 of 25 -- 24 general statements about the assessment of exemplary damages in those cases were difficult to reconcile with the Backwell principle. It was further submitted that it was relevant to have regard not just to the subjective effect of the award on the defendant, but the function of exemplary damages of assuaging any urge for revenge felt by victims so as to discourage any temptation to engage in self help, and as a deterrent against conduct of the same reprehensible kind, applying more generally than just to the particular defendant. It was also submitted that there were decisions in Queensland where awards of exemplary damages had been made which appeared to be inconsistent with the application of such a principle. [91] Ultimately, however, I am not persuaded by the arguments advanced on behalf of the plaintiff, essentially for three reasons. In the first place, it appears to me, with respect, that the reasoning advanced in Backwell is persuasive. Although reference was made to Rookes v Barnard, the court was conscious of the approach of the High Court in Uren (supra), but took the view that that did not cut across the question of assessment of exemplary damages in a case where it was appropriate to award them. The effect of the other High Court decisions was also considered, except of course the decision in Gray which followed Backwell. It does not appear to me, however, that there is anything in Gray which is inconsistent with the decision in Backwell. In short, the reasoning in Backwell provides a persuasive justification for rejecting the submissions made on behalf of the plaintiff. [92] The second reason is that Backwell stands as a decision of an intermediate appellate court on a point in respect of which I am unaware of any decision of the Queensland Court of Appeal to the contrary. I therefore ought to follow it unless actually convinced that it was wrong, and I am not so convinced. I am confirmed in that approach by the fact that the New South Wales Court of Appeal has adopted the same approach, in Amalgamated Television Services Pty Ltd v Marsden (No. 2) (2003) 57 NSWLR 338 at [24]. Given that the principle has been now adopted by two intermediate appellate courts in Australia, as well as having been recognised in England, Canada and New Zealand, there would be compelling reason for me to apply it even if I had some doubt about its appropriateness, which I do not. [93] In view of the force of those reasons, it is almost presumptuous of me to add a third, and I venture to do so only because it is a consideration which strikes me as not without some significance, although it was not mentioned in either of the other two cases. One of the justifications for exemplary damages noted in the authorities is to teach a wrongdoer that tort does not pay.54 This is particularly significant in a situation where the economic advantage to the defendant of having engaged in the wrongful conduct is or may well be substantially greater than the harm actually suffered by the plaintiff as a result of it, and hence the amount awarded by way of compensatory damages. XL Petroleum is an example of such a case;55 another example is where a defamatory statement of a sensational nature is published in a newspaper with a view to enhancing circulation and thereby profit.56 [94] This has some parallel with a situation where a plaintiff has suffered a tortious act in the form of being deprived of some profit earning property, and the defendant has been able to make a profit from the use of that property. Damages in tort will be the 54 XL Petroleum (supra) p 471 per Brennan J, citing Lord Diplock in Broome v Castle & Co. 55 See p 461, p 471. 56 Uren v John Fairfax & sons Pty Ltd (supra) at p 160. -- 24 of 25 -- 25 loss suffered by the plaintiff as a result of being deprived of that property, but it is open to the plaintiff to waive the tort57 and sue to recover the profit earned by the defendant from it.58 These, however, are alternative remedies: the plaintiff cannot both recover his own loss and appropriate to himself the profit made by the defendant.59 In those cases where exemplary damages operate in this particular way, there is some analogy with that principle. I appreciate that in a case like the present there is no question of the defendant’s receiving some financial advantage from his wrongdoing, but if exemplary damages on one basis ought not to be cumulative, that supports an approach that exemplary damages should never be cumulative. [95] It is true that that approach does not appear to have been applied in other Queensland cases,60 but in circumstances where there is nothing to indicate that there was any deliberate departure from the principle in those other cases, I do not consider that any significance should be attributed to that. In the light of these considerations, I do follow Backwell. Applying that principle, I consider that the award of compensatory damages is such that it already stands as a sufficient punishment of the defendant for that part of his conduct in respect of which exemplary damages could properly be awarded, and would be sufficient as well to fulfil the functions of deterrence and assuagement. Conclusion [96] Accordingly, I summarise my findings in relation to damages as follows: (a) General damages $30,000.00 (b) Interest on past general damages at 2% for 10 years $4,000.00 (c) Past economic loss $15,000.00 (d) Interest on past economic loss at 3% for 6 years $2,700 (e) Future economic loss $80,000.00 (f) Loss of superannuation benefits $8,550.00 (g) Special damages $598.33 (h) Interest on special damages at 3% $179.50 (i) Future expenses $5,000.00 TOTAL $146,027.83 [97] There will therefore be judgment that the defendant pay the plaintiff $146,027.83 including interest of $6,879.50. I will invite submissions as to costs when the reasons are delivered, but unless another order is appropriate I will order the defendant to pay the plaintiff’s costs of and incidental to the action to be assessed. 57 I acknowledge that the term is controversial, but the concept seems well established: Hedley (1984) 100 LQR 653. 58 A number of torts can be waived in this way, although not assault: United Australia Ltd v Barclays Bank Ltd [1941] AC 1 at 13. 59 Salmond & Heuston “Law of Torts” (19th Ed. 1987) p 677. 60 E.g., in P v R [2010] QSC 139. -- 25 of 25 --