Webster v Yasso[2002] QDC 206

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an assessment of damages in an action for damages for assault and trespass to property. The proceeding was commenced by a claim filed on 20 April 2001, and judgment in default of a Notice of Intention to Defend was signed by a Deputy Registrar on 14 February 2002. Damages are being assessed pursuant to that judgment in accordance with Part 8 of Chapter 13 of the Uniform Civil Procedure Rules.

2. [2]
   According to the statement of Claim the Plaintiff is claiming damages for the effects of two incidents:

1. (a)
   On 23 April 1998 the Defendant raped the Plaintiff and otherwise assaulted her in ways which were assaults of a sexual nature, as a result of which she sustained bruising and psychological injury.

2. (b)
   Between 6 and 13 February 1999 the Defendant entered the Plaintiff’s premises whilst she was absent and spread a quantity of oil throughout the premises, in the process damaging a number of possessions belonging to the Plaintiff, as well as smashing a cabinet and trying to set fire to some clothing belonging to the Plaintiff, as a result of which the Plaintiff suffered loss and damage.

3. [3]
   For the purposes of this assessment I assume that those events occurred as alleged. As a result of a complaint from the Plaintiff, the Defendant was charged with rape, and tried twice. At the first trial the jury was unable to agree, and at the second trial the Defendant was acquitted. The Defendant has not been charged with any offence in respect of the circumstances giving rise to the claim for damages for trespass to property. However, these matters are not relevant for the purposes of this proceeding.

Facts 

4. [4]
   There had been some relationship between the parties some time previously, including a sexual relationship, and the Plaintiff has a child by the Defendant: Ex 1. They had been living together for some time but had separated, and the Plaintiff told the Defendant a number of times that the relationship was over. Nevertheless on the night in question the Defendant came to the Plaintiff’s residence whilst she was asleep and got in somehow, removed her underwear, and began to assault her sexually.

Physical injury

5. [5]
   The bruising suffered by the Plaintiff was a thumb print and finger print around her arms, and a large bruise across the upper part of her right leg: p. 8. In a statement made by the Plaintiff on 10 July 1998 (ex 1) she said that during the attack the Defendant had squeezed her thighs, particularly when she was trying to fight him off. Subsequently he grabbed her by the shoulders and threw her onto the bed. He then forced her legs open and raped her.

Psychological injury

6. [6]
   Following the incident the Plaintiff became very anxious about her personal safety. She had been working in a bottle shop within a shopping centre, and continued that employment until December 1998 when she could no longer cope with the stress involved and had to leave : p 8. She had developed shaking in the head and hands after she left work. She went on holiday which took her away from Bowen, and while away the damage the subject of the claim for trespass to property was inflicted on her possessions: Ex 2. After this incident she moved away from Bowen permanently.

7. [7]
   Since doing so she has had very little paid employment, she has only worked for some three weeks in the middle of 1999. She tried to obtain other employment, but found being interviewed very embarrassing because of the continuing shaking of the hands and the head : p 9.

8. [8]
   As a result of the incident the Plaintiff has nightmares and has difficultly sleeping, and remains very anxious about further intrusions to her premises. She has experienced great difficulty in establishing in any social relationships, she has gained weight, has become withdrawn and avoided contact, and has been left with a generalised feeling of insecurity : Exhibit 6.

9. [9]
   The Plaintiff was seen for the purpose of a Medical report by a Psychiatrist, Dr Reddan on 13 September 2001 : Exhibit “3”. Dr Reddan was of the opinion that the Plaintiff was suffering from a generalised anxiety disorder as a result of the sexual assault. That had been made more severe by the later damage to the property. For a time it had interfered with her capacity to work, but there had been some improvement by that time. Dr Reddan recommended some treatment in the form of Cognitive Behavioural Therapy at a cost of approximately $2100.

Aggravated damages

10. [10]
    The Plaintiff claims damages including aggravated and exemplary damages. Aggravated damages are awarded for injury to the Plaintiff’s feelings caused by insult, humiliation and the like. Exemplary damages, on the other hand, go beyond compensation and are awarded as a form of punishment of someone who has acted in contumelious disregard of the Plaintiff’s rights : Lamb v Cotogno (1987) 164 CLR 1 at 8.  Aggravated damages are commonly awarded where there is something special in the circumstances in which the tort is committed which sets it apart from other torts of a similar nature, or where there has been other subsequent conduct in relation to the tort which makes the injury to the Plaintiff’s feelings worse.

11. [11]
    There is no difficulty about compensating as personal injuries the Plaintiff’s physical injury and psychological injury, but there will also have to be compensation for the deliberate violation of the Plaintiff’s right of personal integrity by the Defendant. In Kohan v Stanbridge (1916) 16 SR (NSW) 576 it was held that a court was entitled to award a Plaintiff compensation for the indignity which he had suffered.  In that case, an action for assault, the Plaintiff had been kept in an undignified position in the presence of others for some considerable time: p 584.  On the other hand in Paten v Bale (Writ 8921/98, Supreme Court of Queensland, Wilson J, 19/10/99, unreported) Her Honour declined to award aggravated damages in an action for assault based on a series of sexual assaults, although it appears that what was relied on to support the claim for aggravated damages was conduct other than the commission of the actual assaults.

12. [12]
    In McKean v Page (1999) 25 Fam LR 15 the full Family Court approved an award of aggravated damages in a case involving an assault on a child by a person in loco parentis, although not exemplary damages as the Defendant had already been punished through a prosecution.  In Greig v Greig [1966] VR 376 aggravated damages were included in an award in a case of trespass to land, where the trespass involved entering the Plaintiff’s premises so as to install a hidden microphone which would record the Plaintiff’s private conversations.  Although this was a different cause of action, it is a similar one and that decision suggests that aggravated damages may be awarded because of the particular nature of the trespass committed.

13. [13]
    Although I have not in the course of a relevantly short investigation found anything which seems to be directly on point, in my opinion damages are appropriately awarded in a case of trespass to the person to compensate the Plaintiff for the violation of her right to personal integrity, independent of any actual injury and independent of any special behaviour of the Defendant which makes this assault particularly insulting or damaging to her feelings compared with a typical assault of that kind. Fleming in the Law of Torts (9^th edition 1998) said that the action protects the individual not only against bodily harm but also the interference with his person which is offensive to a reasonable sense of honour and dignity : p 29.  Accordingly he expressed the opinion that the action is available where the physical conduct had taken place while the Plaintiff was asleep and not aware of the incident at the time, and where there were no lasting aftereffects, on the basis of the affront to her when she found out later : p 30.

14. [14]
    Overall therefore I believe I am entitled to make an assessment of general damages which goes beyond strict compensation for actual harm in the ordinary sense. It seems to me that the inherently insulting and degrading nature of the sexual assault, and the particularly severe invasion which such an assault is of the personal integrity of the Plaintiff, justifies some allowance in an award of general rather than aggravated damages^[1], but if I am wrong about this then I would make a similar award by way of aggravated damages.  In my opinion aggravated damages are better kept for circumstances which make the assault in the particular case more of an insulting act by comparison with other similar assaults, or where the injury to the Plaintiff’s feeling arose from subsequent conduct.  I should add that the Plaintiff did not seek to obtain the award of aggravated damages based on the conduct of the Defendant in connection with the criminal proceedings,  which was appropriate: Paten v Bale (supra) para 16.  I will return to the issue of exemplary damages.

15. [15]
    One difficulty in assessing damages of this kind is the absence of guidance in the authorities as to the appropriate sum to award. Given the nature of the assault, no amount can really compensate the Plaintiff adequately for the sense of personal violation suffered. That is an inevitable limitation on an award of damages for this kind of tort: Bird v Bool (Writ 815/95, Supreme Court of Queensland, Derrington J, 16/10/97 unreported). 

Assessment of general damages

16. [16]
    As compensatory damages, I assess general damages including for pain and suffering and loss of amenities of $35,500. This is made up of:

1) Damages for violation of personal integrity   $20,000

2) Damages for physical injury     $ 500

3) Damages for psychological injury   $15,000

I apportion $30,500 of this to past loss, which will carry interest at the rate of 2% per annum for four years.

17. [17]
    In the present case there are aspects of the defendant’s conduct which fall into the category which I recognise as being appropriate for aggravated damages in a case such as the present. Two matters are relied on by the Plaintiff : the first was that the following morning the Defendant presented himself naked to the Plaintiff and appeared to express an interest in further sexual activity, which the Plaintiff was able to deflect. The second was that, for some time after the Plaintiff complained to the Police, the Defendant would hang around whilst she was at work, and otherwise make his presence felt from time to time, so that he was constantly recalling to her mind what he had done, and putting pressure on her because of concern about further sexual assault. These are matters which I find do properly justify a separate award of aggravated damages. The consequence of this behaviour would have been considerably more emotional distress to the Plaintiff, particularly in the period when she was living in Bowen. I assess in respect of this aggravated damages of $5,000.

Economic Loss

18. [18]
    During the period prior to 1997 the Plaintiff was running a business, which however was unprofitable: Exhibit 6. Subsequently she worked as a sales assistant from November 1997 until December 1998, earning on average about $150 net per week: Exhibit 6. On this basis the Plaintiff sought past economic loss at the rate of $150 per week. The Plaintiff had attempted to return to work in middle of 1999 but had not been able to cope at that stage: p. 9. On the other hand in October 2001 Dr Reddan was of the opinion that she had reached a point where she was able to return to work: Ex 3. If she was in that state at the time of Dr Reddan’s examination (September 2001), that indicates that she lost employment for about 2¾ years, although I would expect that even after a person who had had such difficulties was capable of returning to work there would be likely to be some delay in actually obtaining a suitable position, a fact which would in my opinion justify my assessing past economic loss on the basis of loss of earnings over a period of 3 years.

19. [19]
    Some amount should be allowed for the vicissitudes of life when assessing past economic loss, and accordingly I will round the calculated figure^[2] down to $22,000.  I have not made much discount because the evidence of the Plaintiff’s earnings in Exhibit 5 suggests that the average figure of $150 per week was itself a fairly conservative one.  More recently the Plaintiff has been doing some volunteer work, and this may explain why she has stayed out of the workforce.  The Plaintiff has been in receipt of social security benefits in the past and in those circumstances no award of interest is sought in respect of the damages for past economic loss.

20. [20]
    The Plaintiff also seeks the sum of $2,100 for future medical expenses on the basis of Dr Reddan’s report. She said (and I accept) that if she could afford to take that course of treatment she would do so: p 11. I will allow that amount.

Property Damage

21. [21]
    With regard to the claim for property damage, ultimately the Plaintiff sought compensation on the basis of the items identified in an annexure to the statement made to the police on 18 February 1999 : Exhibit 2. These were the various items which were effectively destroyed by the Defendant. As mentioned earlier, the Plaintiff’s case is that the Defendant entered the Plaintiff’s premises by force whilst she was away and spread oil about, and set fire to some clothing, causing extensive damage to her property. A complaint was made to the police, but no action was taken because that there was insufficient evidence to identify the Defendant as the intruder. I proceed to assess damages on the assumption that the Defendant was responsible for this injury to her property.

22. [22]
    The Plaintiff’s case ultimately relied on the list and valuation in the document Exhibit 2; a total of $10,141. In addition the Plaintiff claims the amount paid to a cleaner to assist in cleaning up the unit, her removal expenses, the cost to repair the fly screen damaged when the Defendant broke in, and the cost of steam cleaning some carpets which had been damaged. These claims are supported by receipts (Exhibit 7) and total $190 which I will allow.

23. [23]
    Thus as a result of the trespass to the property and the deliberate destruction and damage, the Plaintiff suffered damage to her property and was put to expense to the extent of $10,731, which is properly allowed as damages for trespass to land or to chattels. As I noted earlier there is some authority for allowing compensation for violation of rights of property in an appropriate case as an element of damages for trespass. The damage was malicious, and was apparently calculated to distress and intimidate the Plaintiff, to the extent of even pouring oil onto the toys of the young child of the parties. Whether this is treated as damage for infringement of property rights, or as aggravated damages because of the particular nature of the injury to the property, may well not matter, because I do not intend to award more than one sum. It will also cover the emotional distress of the Plaintiff associated with the damage to her property in this way. In light of all these considerations, I will award in respect of the trespass to property a further sum of $5000.

24. [24]
    I will allow interest on the sum of $10,731 at 8% per annum for 3½ years, and interest on the sum of $5000 at 2% per annum for 3½ years, a total of $3,354.68.

25. [25]
    I should add that my assessment of damages in the present case, particularly in assessing figures where there was no real assistance to be obtained either from calculations or from comparable decisions, has faced the difficulty that I did not have the benefit of submissions on behalf of the Defendant.

26. [26]
    I therefore assess damages as follows :

Exemplary Damages

27. [27]
    It was recognised on the part of the Plaintiff that exemplary damages were properly awarded to punish the Defendant, and their assessment proceeds on a different basis from compensatory damages. It was also recognised that when assessing an amount appropriate for an award for exemplary damages it is relevant to take into account the amount already awarded by way of compensatory damages: Backwell v AAA [1997] 1 VR 182 at 210.  It is also relevant to have regard to the financial position of the Defendant.  At the moment there is no information about that except that he was in the past employed as a locomotive driver.  Subject to the consideration of whether the award is in any case sufficient to stand as appropriate punishment, in my opinion given the nature of the assault (and indeed the trespass) this is clearly a case for an award of exemplary damages.  Both incidents involved a contumelious disregard of the Plaintiff’s rights. 

28. [28]
    I proceed on the basis that the correct approach, when deciding whether an award of exemplary damages is appropriate, is to consider whether there are circumstances which justify some punishment of the defendant, and then to consider whether the award of damages apart from exemplary damages would, if looked at as a punishment, be appropriate as a punishment in the light of the Defendant’s conduct and the Defendant’s circumstances. If not, the court will then proceed to award some additional sum by way of exemplary damages so the total figure is appropriate in that way. In my opinion, bearing in mind the very limited information I have about the Defendant’s capacity to pay, and assuming that he is in relatively modest circumstances for a person in employment, I am not persuaded that the award of damages already assessed would not be a sufficient punishment to him without some additional award of exemplary damages. For that reason, I am not persuaded that it is appropriate to award exemplary damages in the present case.

29. [29]
    There will therefore be an assessment that the amount the Defendant has to pay the Plaintiff pursuant to the judgment is the sum of $86,126 which includes $2,775 by way of interest. I will also order the defendant to pay the plaintiff’s costs of the assessment to be assessed.