Reed (a pseudonym) v Smith (a pseudonym) [2024] VCC 1387 (17 September 2024)

Last Updated: 20 September 2024

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION

Revised Not Restricted Suitable for Publication

GENERAL LIST

EMILY REED (A PSEUDONYM)	Plaintiff
v
EVAN SMITH (A PSEUDONYM)	Defendant

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JUDGE:	HER HONOUR CLAYTON
WHERE HELD:	Melbourne
DATE OF HEARING:	30 August 2024
DATE OF JUDGMENT:	17 September 2024
CASE MAY BE CITED AS:	Reed (a pseudonym) v Smith (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2024] VCC 1387

REASONS FOR JUDGMENT
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Subject: PERSONAL INJURY

Catchwords: Assessment of damages – intentional tort – child sexual abuse – psychiatric injury – loss of earning capacity

Legislation Cited: County Court Civil Procedure Rules 2018

Cases Cited: Victorian Stevedoring Pty Ltd v Farlow [1963] VicRp 80; [1963] VR 594

Judgment: Judgment for the plaintiff.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms F Spencer SC with Ms B King	Bowman & Knox Lawyers
For the Defendant	No appearance

HER HONOUR:

1. The plaintiff brings a claim for damages against the defendant for injuries caused by the intentional tort of sexual assault.
2. The plaintiff claims that, between 2013 and 2018 when she was aged between nine and fourteen, the defendant, her grandfather, touched her on her breasts, vagina and buttocks on a regular basis, removed her clothing, made her touch his penis, exposed his naked body to her, digitally raped her on repeated occasions and penetrated her vagina with his penis on one occasion.
3. The plaintiff claims that, in about 2018, she became aware that the defendant had also sexually assaulted her sisters.
4. As a consequence of the sexual assault on her and her knowledge of the sexual assault of both her sisters, the plaintiff has suffered a diagnosable psychiatric condition, being post-traumatic stress disorder (“PTSD”), anxiety and depression.
5. The plaintiff claims general damages for pain and suffering, pecuniary loss arising from a loss of earning capacity, medical and like expenses, aggravated damages and costs.
6. The plaintiff served the Writ and Statement of Claim on the defendant on 2 September 2022. The defendant is currently serving a term of imprisonment. He did not enter an appearance or defence.
7. On 29 May 2024, judgment in default of appearance was entered pursuant to Order 21 of the County Court Civil Procedure Rules 2018 (“the Rules”).
8. On 31 May 2024, orders were made setting the matter down for assessment on 30 August 2024 and requiring the defendant to file any affidavits upon which he sought to rely by 23 August 2024 and to file any notice to attend for cross-examination no later than 27 August 2024.
9. No affidavit or notice to attend for cross-examination was filed by the defendant. The defendant was notified of the assessment hearing and a link for the defendant to attend remotely was sent to the prison where he is incarcerated. The proceeding was delayed until the prison could accommodate the video link. The proceeding was further delayed for ten minutes after the start of the video link to allow an additional opportunity for the defendant to appear. There was no appearance by the defendant.
10. Pursuant to Order 40.05 of the Rules, I granted leave to the plaintiff to tender, and rely on the reports, of Dr Leon Turnbull, occupational and forensic psychiatrist, without requiring the author of those reports to attend for cross-examination.
11. At the commencement of the hearing, I made orders that the assessment of damages proceed before me pursuant to Order 23.03(3).

Background

12. The plaintiff was a very young child at the time the abuse started. Even prior to the age of nine she recalls the defendant exposing himself to her on many occasions, often at family gatherings, where adults were close by.
13. Around the age of nine, she recalls the first occasion when she was physically assaulted by the defendant. This occurred after the death of her grandmother, the defendant’s wife, when the plaintiff was sent to stay with her grandfather by herself.
14. She described the defendant forcefully pulling her into rooms, forcefully touching her and kissing her. This could occur at any time and in any location. At her own home, the defendant would cover her mouth with his hand and take her into a room where he would force her to touch him, or would touch her. This occurred often when her family were upstairs or in close proximity.
15. When the plaintiff stayed at the defendant’s house with someone else, he would wait until that person was otherwise occupied, for example having a shower, and would then push her onto furniture in order to touch and kiss her, to make sure she could not stop him.
16. She recalls escalating abuse, which included at least fifty occasions where the defendant touched her genitals, breasts and buttocks and forced her to touch his genitals and kissed her, and many occasions where he digitally penetrated her. She recalls one occasion of penile rape, which she describes as very painful and frightening.
17. She recalls the abuse happening “on every occasion” that she was at the defendant’s house.^[1] She says that every time the abuse occurred she felt it was her fault and that she could have stopped it.
18. She recalls wearing long clothing, even in the height of summer, to try to make access to her body more difficult for the defendant. This did not deter the defendant. The defendant would say things to her during the abuse to reference his own sexual arousal and to place the responsibility for that arousal onto the plaintiff – for example “look how hard you’ve made me”.^[2]
19. Although most of the assaults occurred at the plaintiff’s or the defendant’s home, the defendant also assaulted her in public, including in the carpark of a Bunnings store in about February 2016.
20. On many occasions the defendant called the plaintiff on her home landline phone and said sexual things to her.
21. In 2018, she sought counselling and that led to disclosure of the abuse to her mother and then to the police. She describes the process of reporting the abuse to the police as “very traumatic” and that she “hated that experience”. It was confronting and distressing.

Assessment of damages

22. The principles of award of damages are well known. A plaintiff who has been injured by the tortious act of a tortfeasor is entitled to damages to put them back, as nearly as possible, to the same position as if they had not sustained the injury.
23. By his failure to enter an appearance or defence, the defendant is taken to have admitted the allegations of assault and admitted the damage claimed.

General damages for pain and suffering

24. I have read and rely on the reports of Dr Turnbull, who provided a psychiatric assessment of the plaintiff, dated 29 September 2021,^[3] 7 August 2022^[4] and 2 July 2024.^[5]
25. The plaintiff describes feeling afraid and confused throughout the many years of abuse. She wondered if she was to blame. She felt threatened. The defendant told her that she could not tell anyone, that the abuse was their “little secret”. She would ask herself repeatedly if there was something wrong with her. She felt anxious and that anxiety has not abated.
26. She became depressed and began to associate her feelings of anxiety and her lack of wellbeing with the abuse. It was her association of her emotional state to the abuse that caused her to seek counselling, and that ultimately resulted in her disclosure of the abuse.
27. Through her early and middle years at high school she had significant absenteeism. There were times when she would make up physical symptoms to avoid going to school, and estimates she missed at least a day each week of school. She struggled to get out of bed, she was easily fatigued and was having nightly nightmares and flashbacks on a daily basis. She was filled with self-doubt. Reminders of the abuse were triggered, among other things, by smells, places and people using words such as “little secret”.
28. Throughout 2018 and 2019 she had suicidal thoughts. These thoughts led to serious self-harm on at least five occasions. She thought about means of taking her life. She hid these thoughts and actions from others.
29. Between 2019 and 2022 she describes being in “a bad place”. She says she “let myself go” and was drinking heavily and engaging in substance abuse. She has been able to stop taking illicit substances and only using alcohol occasionally now.
30. For about three years she took antidepressant medication, but felt that the medication “numbed” her emotions and she eventually ceased that medication.
31. The frequency of her nightmares and flashbacks has now reduced to around twice a month. She feels that her depression affects her motivation and sometimes leads her to contemplate “giving up”, which would be easier than “battling on”.
32. She has been diagnosed with PTSD, depression and anxiety. She notices the anxiety in particular remains a problem. She has panic attacks on a fairly regular basis, she estimates about six times a year. She sometimes feels as if she is detached and as if she is “in a TV show”. She has difficulty trusting and wonders whether she can rely on her partner when in a relationship. As a result, she has not been in a relationship for more than a year. Her ability to form intimate relationships has been badly affected by the abuse. She feels “imposter syndrome” in friendships and questions the intentions and motives of people. She worries that she is being misled or deceived.
33. She finds being in places that she associates with the defendant confronting and it provokes intense memories of the abuse. When she thinks about the abuse, she feels “consumed by an anxious feeling of doom”, which manifests in both emotional and physical symptoms.
34. She recognises that she needs professional help with her anxiety, but in the past has not found psychological counselling to be of great benefit. Nevertheless she does intend to pursue psychological counselling to help her manage her injuries.
35. The plaintiff is plagued by nightmares which, although less frequent than they once were, still impact on her ability to get a good night’s rest.
36. To her enormous credit and despite the significant burdens she has faced, she managed to get through school and do well in her final year, although her results were significantly less than she believes she could otherwise have achieved and lower than predicted.
37. She is now studying at university, and also works between twenty-five and forty-five hours a week in hospitality. She is a musician in a band and lives in a share house. She hopes that after completing her studies she will be able to qualify and practise as a forensic psychologist.
38. From the evidence before me, it is apparent that the abuse the plaintiff suffered has had an incalculable impact on her and it is an impact that will continue to reverberate throughout her life. Notwithstanding those obvious and significant impacts, the plaintiff has not allowed herself to be consumed by her injuries. Despite the adversity she has faced, she has forged a successful path. She is working, studying, playing music and living out of home, and these are all matters that are a great credit to her.
39. I do not consider that this is any way diminishes the significant harm she has suffered, the toll that harm takes on her now, or the significant risk she faces from that harm in the future.
40. I was particularly struck by the plaintiff’s description of the difficulties she has trusting people, including men her own age and the impact this has on her forming relationships. Her ability to form intimate relationships has been severely affected.
41. I accept that the criminal trial took a toll on her, which she understated as “a very unpleasant experience”, and meant that attending the Court to give evidence in this proceeding was “quite hard”.^[6]
42. She has abused alcohol and illicit substances over a number of years, although has managed to cease this behaviour now.
43. No amount of financial compensation can put the plaintiff back in the position she would have been in had the abuse not occurred. Sexual abuse, particularly in childhood, has profound effects and impacts on the victim, that cannot always be readily identified or quantified. However, despite its inadequacy, financial compensation is the only tool available to this court to compensate a plaintiff in a civil action of this kind.
44. I am required to award damages that are proportionate to the harm suffered. The harm suffered includes the harm that the plaintiff will continue to experience from her psychological injuries into the future.
45. I am mindful that the plaintiff is very young and has a normal life expectancy. The repercussions of the abuse will be with her for the rest of her life. I am mindful that, given the very early age at which the abuse commenced, there would be almost no aspect of her childhood that is unaffected by the impact of the abuse.
46. While other cases can be of some assistance in determining appropriate awards of damages, each case necessarily turns on its own facts.
47. Recent awards by both judges and juries in this State in cases involving childhood sexual abuse have recognised that psychiatric injuries can be just as damaging and cause just as significant consequences as physical injuries.
48. I am mindful, however, that many of the awards of damages in cases involving childhood sexual abuse have been brought by plaintiffs many years after the abuse. In those cases, the effects of the abuse on the plaintiffs’ lives can be more readily assessed.
49. Cases where the plaintiff is young present a unique challenge. One does not want to assume that this plaintiff’s life trajectory will inevitably follow a dysfunctional pathway. To the contrary, I consider that the plaintiff has shown herself to be a person capable of overcoming significant adversity, and have every confidence she will continue to do so.
50. However, outward signs of success, for example, achieving good academic results and forging a career path, do not mean that the psychological injuries she has sustained will not continue to take a toll. Much like the “stoic plaintiff” who continues to work notwithstanding severe pain, a plaintiff with a psychiatric injury such as PTSD may ostensibly function well, but be living with great psychological pain that has consequences in less obvious ways.
51. Having regard to fact that the abuse continued over many years, from the plaintiff’ earliest recollections until her early teenage years, the forceful and aggressive nature of the abuse, the painful nature of some of the abuse, the significant psychiatric harm she has suffered, including suicidal ideation, self-harm and substance abuse over a number of years, and having regard to her young age and many years ahead living with and managing her injuries, I consider an amount of $500,000 is appropriate compensatory damages in this case.

Aggravated damages

52. In addition to compensatory damages, the plaintiff pleads there are circumstances which have aggravated the damage she has suffered, and that as a result of the defendant’s actions, he ought additionally be required to pay an amount of aggravated damages.
53. I am satisfied that the defendant’s conduct significantly aggravated the damage she suffered. He assaulted her over an extended period of time, when she was particularly vulnerable and alone at his house. He assaulted her when she was in her own home, depriving her of the opportunity to feel safe in a space that should have been a sanctuary. He threatened her and caused her to fear what would happen if she told anyone else. This caused her to deny the abuse when asked about it by her sister. What he did to her and what he said to her caused her to blame herself, to wonder if there was something wrong with her and whether she was responsible. It is not uncommon for abused children to wrongly misplace the guilt and blame onto themselves.
54. It goes without saying that the plaintiff was not in any way responsible for what happened to her. There is no part of the abuse that occurred because she did not object sufficiently. The abuse occurred solely and entirely because the defendant violated his moral and legal obligation to his granddaughter in the most damaging way.
55. He had no regard whatsoever for her safety or wellbeing. The fact that he was a family member who should have been caring and protecting her, but instead sought to gratify his own needs at the expense of her physical and mental safety, aggravates the harm she suffered. This abuse occurred at a time when the understanding of the long-term devastating impacts of childhood sexual abuse were well known. There can be no suggestion that the defendant did not understand that the acts he was engaging in were illegal and would cause significant, long-term emotional and psychological distress, and physical pain, to the plaintiff.
56. The fact that the defendant required the plaintiff to keep the abuse secret is an acknowledgement that he knew what he was doing was harmful and wrong and would not be sanctioned.
57. He chose to let the plaintiff deal with the burden of keeping that secret.
58. His actions undoubtedly aggravated the harm suffered by the plaintiff.
59. I consider an amount of $50,000 is appropriate compensation for aggravated damages.

Pecuniary loss

60. The plaintiff makes a claim for pecuniary loss. I am satisfied that her absenteeism and fatigue, combined with depression and anxiety, impacted her studies, such that the ATAR she was able to achieve, while still a solid result, meant she could not get into her first choice of course, which was a Bachelor of Psychological Science. Given her strong performance, even in light of the injuries, she is clearly a high-performing student who likely would have had her choice of university courses and careers available.
61. She describes a lack of motivation as one of the consequences of her psychiatric state. She estimates that there is about one day a week when she is unable to attend university or school because of fatigue. This will inevitably take a toll on her academic achievement and her work capacity. During 2023, she was unable to continue with her studies on a full-time basis and dropped down to part time due to an increase in her anxiety.
62. As a result of the abuse, her path to her chosen career is likely to be more difficult and the opportunities available to her will be more restricted. In particular, discussion about child abuse and sexual abuse tend to trigger reminders of her abuse. These reminders are distressing and cause her a feeling of doom. This issue will likely limit the capacity in which she can work as a psychologist. Studying these subjects is particularly difficult, and, as she noted, these subjects are unfortunately a part of the experience of many people who seek psychological treatment. Unfortunately, it is likely that the experience of sexual abuse will continue to be a feature of litigation and criminal trials into the future, and therefore her opportunities as a forensic psychologist will likely be negatively impacted.
63. I am satisfied that it is appropriate to make an allowance pursuant to the principles in Victorian Stevedoring Pty Ltd v Farlow.^[7] Even though it is not possible to accurately quantify the loss, that does not mean that only nominal damages are to be awarded.
64. The plaintiff has demonstrated a capacity for academic achievement at high levels and an ability to absorb a significant load in terms of work and study.
65. I am satisfied that, having regard to the past impacts and future impacts of the abuse on her academic performance and the consequence of those impacts on her earning capacity, a sum in the amount of $200,000 is appropriate damages by way of an award for her future loss of earning capacity.
66. In addition, the plaintiff makes a claim for medical and like expenses in the past for medication in the amount of $1,237.56, and in the future for psychological treatment and medication in the amount of $31,176.00. I am satisfied that a reasonable allowance for past expenses is $1,200 and future medical and like expenses is $31,000.
67. Finally, the plaintiff claims costs fixed in the sum of $39,420. Fixing costs at this point has the advantage of facilitating recovery of a judgment debt, although it carries with it the risk that the plaintiff will not be able to recover future unanticipated costs arising after the date of judgment. Nevertheless, in the circumstances of this case, I consider it is appropriate to fix costs, rather than order costs to be assessed. This is because the defendant is currently incarcerated, is elderly and any delay in recovering on the judgment is not in the interests of justice.
68. It is not the role of this court to replace the role of the costs court in assessing costs. I consider engaging Senior Counsel to represent the plaintiff at the trial assessment to be warranted, given the particular complexity of this assessment and the high damages sought. In this case, having regard to the work done, I consider costs in the amount of $39,000 to be reasonable.

Orders

69. Judgment will be entered for the plaintiff as follows.
70. The defendant is to pay the plaintiff the amount of $821,200.00, which is made up of:

(a) $550,000 for pain and suffering damages, including aggravated damages;

(b) past pecuniary loss in the amount of $1,200;

(c) future pecuniary loss in the amount of $231,000, made up of:

(i) $200,000 for future loss of earning capacity; and

(ii) $31,000 for future medical and like expenses.

(d) Costs fixed in the amount of $39,000.

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^[1] Affidavit of plaintiff dated 4 August 2024, Plaintiff’s Court book (“PCB”) 157 at paragraph 13

^[2] Amended Statement of Claim, dated 24 April 2024, PCB 21 at paragraph [9d.]

^[3] PCB 168

^[4] PCB 262

^[5] PCB 177

^[6] Transcript (“T”) 26

^[7] [1963] VicRp 80; [1963] VR 594