H L v H P

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Elkaim J
• Judgment Date: 24 October 2019
• Date: 24 October 2019
• Docket Number: File Number: SC 62 of 2018

[2019] ACTSC 299

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Elkaim J

File Number: SC 62 of 2018

H L

(Plaintiff)

and

H P

(Defendant)

Representation:

Counsel

T Crispin with M Keaney (Plaintiff)

A Muller (Defendant)

Cases Cited:

A B v Australian Capital Territory [2018] ACTSC 16

New South Wales v Ibbett [2006] HCA 57; 229 CLR 638

DAMAGES — Assessment and quantum — General damages — Aggravated damages — Future medical expenses — Sexual assault — Battery

Decision:

• 1. Judgment for the plaintiff in the sum of $150,000.00.

• 2. The defendant is to pay the plaintiff's costs of the proceedings.

Elkaim J

1 On 30 September 2009 the plaintiff was sexually assaulted by the defendant. The assault amounted to a battery for which the plaintiff seeks damages.

2 Although the plaintiff originally denied liability, on the basis that the plaintiff had consented to the assault, that stance was properly withdrawn, leaving the dispute limited to damages.

3 The plaintiff claims damages under the following heads: General damages, future medical expenses and aggravated damages.

4 The plaintiff was born in 1994. She is the fifth of eight siblings. There is no doubt that she had a troubled upbringing. Her parents, as between each other were abusive and violent. They took drugs and drank too much alcohol. As a result the plaintiff developed an independence at an earlier age than she might have within a secure upbringing.

5 She was however close to her sisters, in particular R, S and J. They are all older than her. She was quite close to her father but not at all close to her mother.

6 The plaintiff's parents separated in 2009. The plaintiff joined her father at her grandmother's residence. This was a difficult time for her grandmother because her husband was dying of cancer.

7 Probably as a result of her unsettled upbringing, by 2009 the plaintiff had developed a number of rebellious habits. In particular, she was frequently “wagging” school and drinking alcohol, although the latter habit may have initially developed as a result of peer pressure. On some occasions she would binge drink.

8 S is six years older than the plaintiff. As at 2009 S had a steady boyfriend, the defendant. He and S lived together at an address in Casey.

9 The plaintiff first met the defendant in about 2004. At that time the plaintiff was still in primary school, aged about 10. The defendant was 17. They got on well although from time to time the plaintiff felt that the defendant was acting inappropriately. For example when playing basketball he allowed his ‘private parts’ to rub against the plaintiff. He also made unseemly comments about sexual matters. Nevertheless, the plaintiff came to trust the defendant and a good rapport developed between them.

10 On 30 September 2009 the plaintiff asked the defendant to purchase alcohol for her. She intended to take the alcohol, or some of it, to a party on the forthcoming weekend. The defendant agreed to the request, but only on condition that the plaintiff joined him in the purchasing exercise.

11 At about midday the defendant picked up the plaintiff. They purchased the alcohol, and some extra, in Gungahlin. The defendant then said that he needed to go to his home before he would drop the plaintiff at her home.

12 After arriving at the defendant's address in Casey the defendant offered the plaintiff a drink and they sat on the couch. They had some alcohol and were playing a video game called Mortal Kombat. This game is a fight ‘to the death’. The defendant suggested that the loser of each round would drink a shot of absinthe. The plaintiff agreed and, pursuant to the side game, she consumed two or three shots.

13 The defendant then put on a pornographic movie and embraced the plaintiff. He left the room and came back without his trousers. He put his penis into the plaintiff's mouth and after a short time pulled her pants off. He then continued with oral sex and then switched to penile vaginal sex. The plaintiff felt sick and went to the bathroom where she vomited. The defendant brought her some water.

14 During the sexual assault the plaintiff had asked “what about S?”. The defendant had replied “I still love her”.

15 The defendant then drove the plaintiff home, via a McDonald's restaurant. On the journey he told the plaintiff that she could not disclose what had occurred because it would destroy his relationship with S and he could go to prison.

16 The next day the defendant telephoned the plaintiff and enquired about her contraception status. She said that she was not following any contraception regime. The defendant then took her to her general practitioner in Queanbeyan for the prescription of a morning after pill.

17 Shortly afterwards the plaintiff told her best friend about the incident. She told another friend about six months later and a third friend after a further few months.

18 The plaintiff said that for the first few days after the assault she was very upset. She cried herself to sleep and she felt dirty. She decided that if she could not disclose the events then she needed to “push it so far back that it didn't exist”.

19 The plaintiff began missing more school and drinking more alcohol. She found it difficult to sleep because she would think about what had happened. She was racked with feelings of shame and guilt. Nevertheless, she tried to give an impression of being happy and in a happy setting.

20 S and the defendant married in 2011. The plaintiff was a bridesmaid and she made a concerted effort to hide her feelings.

21 In 2014 the plaintiff told her sister, R. This sister had always disliked the defendant. A few weeks later the plaintiff told her sister S about the assault. Her sister seemed sympathetic towards her, but after a few weeks days she asked the plaintiff for another meeting. At this meeting S recorded the conversation during which she asked a number of questions suggesting that the plaintiff had consented to the sexual activity.

22 I note again, that it is no part of the defendant's case that the plaintiff was a willing participant in the sexual assault.

23 The plaintiff later told her father who seemed understanding of the position. As might be expected, when the plaintiff's family became aware of the defendant's activity, the dynamics within the family substantially changed.

24 In July 2014 the plaintiff reported the matter to the police. She found this a particularly difficult time because she had to recall, in detail, the events that had occurred.

25 The plaintiff left school at the beginning of Year 12. This meant that she could not pursue her long held desire to become a nurse. She first worked in hospitality, sometimes doing three jobs at a time. She later became a dental assistant but did not get on with the dentist. She moved to another dental surgery where she worked as a receptionist.

26 In 2018 the plaintiff commenced work in the Australian Public Service as an executive assistant. She was initially on a fixed term contract but her position became permanent. She has since been promoted.

27 Following reporting the matter to the police the plaintiff drank more and also started to increase her use of drugs. She suffered flashbacks. She said she has only had one real relationship although there have been some short relationships. She said that her significant relationship had come to an end after she had suffered flashbacks during an intimate encounter. She does not feel comfortable being intimate. In submissions the plaintiff stressed the significance of her inability to enjoy an intimate relationship.

28 The plaintiff said that she feels she has little self-worth and she finds it difficult to connect emotionally. Although she admitted to still going out socially from time to time, she said that social situations created anxiety.

29 The plaintiff said that she had difficulty concentrating and her sleep was now sporadic. She is still close to her sisters R and J but she has no contact with S.

30 During the build up to the criminal case against the defendant the plaintiff started binge eating, followed by vomiting. At first this was a frequent activity but, although it continues, it is at a much reduced level.

31 The thrust of her cross-examination was to paint a picture that the plaintiff's problems were less serious than she asserted and also had different, at least in part, origins than only the sexual assault. The plaintiff accepted that she was already rebellious before the assault and had drunk alcohol, although to a lesser extent.

32 It was not however suggested to Ms Morris, the plaintiff's expert, that the plaintiff's psychological condition might have had a different origin or at least was partly caused by matters other than the assault. I also note that the defendant's expert, although arriving at a different diagnosis, attributes his diagnosis entirely to the assault.

33 In addition, it was put to the plaintiff that she had done quite well, both at a sporting level and an employment level. I agree, as did the plaintiff, with the suggestion. However, her achievements have been as a result of her fortitude and not because of an absence of psychological symptoms.

34 I found the plaintiff to be an impressive witness who did not exaggerate her symptoms and made concessions about her previous problems, where appropriate. I note that Dr Shaikh, the psychiatrist who reported for the defendant, was also of the view that the plaintiff was not feigning any mental disorder or exaggerating the extent of her symptoms (page 7[H] of his report).

35 The plaintiff agreed that in 2016 she had received $50,000 by way of victims' compensation. She had placed this money in a term deposit because she anticipated that her civil litigation would require a significant amount of funds. She agreed that she had not used any of the money for medical...