Grieve v Gomez[2017] QDC 298

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an assessment of damages in an action for damages for negligence, breach of duty, assault and/or battery.^[1]The proceeding was commenced by a claim filed on 14 September 2016, and judgment in default of a Notice of Intention to Defend was signed by the Registrar on 7 June 2017.  Damages are being assessed pursuant to that judgment in accordance with Part 8 of Chapter 13 of the Uniform Civil Procedure Rules 1999. 

2. [2]
   The hearing for the assessment of damages first came before me on 28 August 2017. On that date, the defendant appeared in person and I adjourned the hearing until 30 November 2018. I also made directions for the further conduct of the proceeding including that: the plaintiff serve the defendant with copies of all the material intended to be relied upon at the hearing; the hearing proceed by way of evidence-in-chief by affidavit; the defendant advise the plaintiff’s solicitors in writing by 6 September 2017 which (if any) of the plaintiff’s witnesses were required for cross-examination; and the matter be listed for a mention on Friday 8 September 2017.^[2]

3. [3]
   At the directions hearing on 8 September 2017, the defendant again appeared in person. He confirmed he had been served with the affidavit material and stated that he did not require any witnesses for cross-examination. He submitted that the amount claimed was too high and urged the court, having read the material, to put everything in proportion. He otherwise said he would not be appearing at the hearing, and would abide the order of the court.

Pleadings

4. [4]
   By her statement of claim, the plaintiff alleges that at the relevant times, the defendant was a qualified medical practitioner practicing within the State of Queensland and she was his patient.

5. [5]
   The plaintiff claims damages for the effects of a number of incidents involving the defendant:

1. (a)
   The first two being, that on either 29 November 2005 or 13 December 2005, the defendant asked the plaintiff if she was interested in becoming his mistress.  Then, on either 13 December 2005 or 20 December 2005, at a subsequent consultation, the defendant told the plaintiff that he still wanted her to be his mistress and he would set her up in a “condo,” buy her a car, and take her to dinner and balls; and

2. (b)
   The remaining [described as the significant assault]^[3]being that on 2 April 2007, during the course of a full body examination for skin cancer, without the plaintiff’s consent and when such massaging was not necessary for the purpose of undertaking a skin examination, the defendant:

1. (i)
   massaged the breasts of the plaintiff; and

2. (ii)
   massaged the buttocks of the plaintiff.

6. [6]
   Given that these events occurred between November 2005 and April 2007, leave to issue proceedings was necessary. On 12 September 2016, such leave was granted.^[4]

7. [7]
   For the purpose of the assessment, I assume that the events as pleaded occurred.

8. [8]
   The injury said to be suffered by the plaintiff as a result of the defendant’s action is a severe psychiatric reaction.^[5]

9. [9]
   As a result of this severe psychiatric reaction, the plaintiff’s case is that she has, and will continue to, require medical and other treatment and she has suffered a loss of amenities of life. General and special damages are claimed.

10. [10]
    The plaintiff’s pleaded case is that the shocking and contemptuous conduct of the defendant also entitles her to “exemplary, aggravated and/or punitive damages” in the sum of $200,000.  Although in the written submissions filed on the plaintiff’s behalf, the sum of $50,000 was claimed for aggravated damages and the sum of $30,000 for exemplary damages.^[6]

11. [11]
    The plaintiff’s entitlement to an order for such damages and if so, the quantum of any such award, is the real issue for my determination in this case.

The Evidence

12. [12]
    The plaintiff did not give oral evidence before me. At the hearing, the plaintiff’s counsel relied on two affidavits of the plaintiff and other affidavit material, including medical reports filed in this proceeding and in separate proceedings for Freezing Orders.^[7]

13. [13]
    In order to consider the plaintiff’s claims, it is necessary to consider this evidence in the context of the plaintiff’s background and the circumstances giving rise to the incidents for which damages are claimed.

The plaintiff

14. [14]
    The plaintiff was born in Christchurch on 21 July 1947. Whilst the evidence is scant in detail in some respects, it reveals that from an early age the plaintiff’s life was marred with misfortune. She has faced adversity and endured difficult and confronting times through no fault of her own.

15. [15]
    The plaintiff was sexually molested by a male family friend when she was about five years of age. She was subsequently involved in legal action as a child against this person. For a period as a child she had a cruel foster who threw darts at her legs.^[8]Unsurprisingly, she found all of these experiences distressing.

16. [16]
    The plaintiff’s family lived a nomadic life. She attended at least eight schools whilst growing up in New Zealand. She left school before she was 13 and she did not learn to read until she was 39. After leaving school, she worked in a number of areas, but was mainly involved in home duties, marrying David “Joe” Grieve in 1966.  They have three children and six grandchildren.

17. [17]
    The plaintiff moved to Australia with her husband and children in 1980. She was employed in a variety of jobs including working in a circus, as a fitter and turner, in retail, as a machinist, as a fashion model and as a cleaner. She has not worked since a 1987 WorkCover claim for a back injury. Since her retirement (in 1987) she reports her marriage has been rocky with her husband providing little emotional support. The plaintiff’s marriage appears to be a difficult one, plagued by a variety of issues. The plaintiff complains that her husband controls the purse strings and has a gambling problem. The couple have suffered significant financial difficulties as a result of this gambling problem. Mr Grieve retired in 2012.

18. [18]
    The plaintiff is currently in receipt of the aged pension and apart from her vehicle and personal belongings, she is a part owner in a property at Nerang with the net equity in the property being $75,000. The only other significant asset she has is “the judgment that I have obtained against the defendant for damages to be assessed.”^[9]

19. [19]
    An overview of the plaintiff’s past medical and accident history is as follows:

1. (a)
   1972 – hysterectomy.

2. (b)
   1987 – lower back injury at work whilst cleaning a bath (for which she continues to suffer and take panadeine forte up to three times a day).

3. (c)
   2002 – IBS with diverticulitis for which she takes one Loperamide.

4. (d)
   2004 – surgery to remove basal skin tumour by the defendant.

5. (e)
   approximately 2007 – right shoulder reconstruction.

6. (f)
   approximately 2007 – fractured right hand from fall.

7. (g)
   2008 – removal of facial squamous cell cancer.

8. (h)
   13 November 2012 – motor vehicle accident – rear end collision – inured neck – still suffers neck pain and takes panadeine forte.

1. (i)
   6 December 2012 – removal of lesion on the surface of the front of the left eye for a skin tumour.

10. (j)
    August 2013 – fell on a spilt drink in a supermarket while holding grand-daughter.  Back and knee injured from the fall. 

11. (k)
    2 April 2015 – diabetes mellitus diagnosed.

20. [20]
    The plaintiff also takes medication for depression, neck pain (from 2002), reflux, cholesterol angina, irritable bowel syndrome, dizziness and anxiety.

21. [21]
    The complainant describes her issues in relation to the defendant to include that she:

1. (a)
   continues to feel dirty and unable to get clean;

2. (b)
   has significant social anxiety, rarely leaving home and if so, usually accompanied by her husband or daughter;

3. (c)
   rarely goes out, but if she does, it is with her husband to the pokie machines.  Whenever a male is next to her she has to get up and leave;

4. (d)
   is oversensitive to men and generally becomes distressed when men appear to be looking at her in a sexual manner;

5. (e)
   has no intimacy with her husband and they stay in separate bedrooms.  She is unable to even receive a hug from her husband;

6. (f)
   has bad days when all she can do is stay in bed and she cannot do household chores;

7. (g)
   has episodes of crying and spends a long time in the shower scrubbing herself;

8. (h)
   has nightmares of the defendant touching her;

1. (i)
   has severe social withdrawal;

10. (j)
    has depression and symptoms associated with post-traumatic stress disorder;

11. (k)
    considers that if she is able to continue with psychological and psychiatric treatment, then she would do so; and

12. (l)
    won’t go to the front door of her home when most people knock unless someone has been invited.

Circumstances giving rise to the incidents the subject of the claim

22. [22]
    The plaintiff’s evidence was that she was not sure when she first consulted with the defendant. She understood him to be a general practitioner who specialised in skin cancers/tumour examinations. She recalled a number of skin tumour check-ups with him in the early 2000’s and that he undertook some minor surgery for the removal of skin lesions on her face for which she had never been required to disrobe.

23. [23]
    Sometime between November 2005 and March 2007, the defendant made verbal comments to her which she found offensive. The first of these was that he asked her if she would be interested in being his mistress. The plaintiff declined and said she was happily married. She recalls fobbing off the comment as she thought the defendant was joking. In a subsequent consultation during that same period, the defendant told the plaintiff that he still wanted her to be his mistress and that he would set her up in a “condo,” buy her a car and take her to dinner and balls if she agreed. The plaintiff recalled being embarrassed and asking the defendant what his wife would think of this. The defendant responded along the lines that his wife would not care if it didn’t involve her having to have sex with him. The plaintiff’s evidence is that she told the defendant that there was only one man in her life and that was her husband.

24. [24]
    On 2 April 2007, the plaintiff again consulted the defendant and on this occasion he told her he wanted to examine other parts of her body. She was required to strip down to a gown. The defendant then examined her breasts and during the examination, he also stroked her inner thighs.^[10]Her evidence was that she was required to lie on her back and the defendant massaged her breasts.  It is not clear whether or not this was on the outside or inside of the gown or how long the massage took place.  She complained to the defendant and felt concerned as to the necessity of this treatment.  The defendant then asked her to roll over onto her stomach and at that time he caressed her buttocks.  Again, it is not clear how long this massage took and whether the plaintiff’s underpants were on and whether this was on the inside or outside of the gown.  The plaintiff then got off the bed in disgust noting that the defendant had what appeared to be an erection.  I infer from the evidence that both of these assaults took place over a relatively short period.  Whilst it is unfortunate that the evidence was not more detailed, I do not think anything turns on this lack of detail for the purpose of my assessment of damages. 

25. [25]
    Not surprisingly, the plaintiff felt sick to her stomach and said something nasty to the defendant that she cannot recall. The plaintiff then left and drove to a nearby school where she stopped and cried. She then went home and showered for a long time, scrubbing herself. Her husband found her in the shower shivering. This was the extent of her contact with the defendant.

26. [26]
    As a result of the abuse and trauma when she was five and the subsequent legal action, the plaintiff did not tell anyone about what happened for some time. The actions of the defendant brought back the past to her so she did not at the time contemplate going to the police, or taking action of any sort against the defendant. Some years later she tried to but started throwing up outside the police station.

27. [27]
    In September 2007, the plaintiff consulted Dr Dennis Evans, another skin doctor.^[11]She told Dr Evans of the defendant’s proposal to set her up in a local apartment to be his mistress.  She also told Dr Evan that “During physical examinations he [the defendant] intimately stroked her inner thighs ‘just like a husband would do in foreplay’” and that the defendant massaged her breast and had an erection at the time.

28. [28]
    Dr Evans told the plaintiff to contact the Queensland Medical Board and the police but she told him about the earlier abuse and how distressing this had been so she could not bear to be involved in a similar situation. The plaintiff continued to visit Dr Evans and received a call from him in mid-2012 asking whether she had taken any action against the defendant. Dr Evans subsequently arranged for her to speak with him and another doctor and to repeat the allegations so that action could be taken against the defendant.

29. [29]
    In 2012, the plaintiff attempted suicide by drowning by walking into the ocean, up to her neck, before being rescued. This conduct she says was entirely due to the defendant and his mistreatment of her. The plaintiff describes her symptoms being aggravated by her need to take civil action against the defendant to remedy what she has been through as a result his mistreatment.

30. [30]
    She recalls in August 2014, collapsing with tightness in her chest, although she is not sure whether this was due to stress or not.

31. [31]
    In March 2017, she attempted suicide again and was referred by her doctor to another psychologist by the name of Mr Paul Matsukis. She has seen Mr Matsukis on eight occasions. The plaintiff continues to suffer from aggravation of her anxiety and depression. She describes her current health as “not good”.

The defendant

32. [32]
    As set out above, no report of a criminal nature has ever been made to the police about the conduct of the defendant towards the plaintiff. There was action taken on behalf of the Queensland Medical Board on 15 September 2015, at which time the Queensland Civil and Administrative Tribunal (QCAT) ordered that the medical registration of the defendant be suspended for a period of six months from that date. Additionally, it was ordered that the defendant not consult, assess, examine or treat any female patient for the rest of his registration as a health practitioner.^[12]The QCAT judgment set out that the defendant cooperated with the Queensland Medical Board and accepted responsibility for his actions.  It also set out that the defendant had not worked since 27 March 2015 as he wanted to protect staff from unwanted media attention.  He was 67 years of age at the time of the QCAT judgment and at that point in time, his plan was to practice for a maximum of another 5 years.

Dr Gubanya

33. [33]
    Dr Gubanya states that he has seen the plaintiff for a long time but that “for some mysterious reason” he only had access to records from 2012.

34. [34]
    He also states that whilst he was the family doctor “I had no part in her treatment relative to her contact with Dr Gomez”.  He recalls that every time he saw the plaintiff they had had long conversations about what happened with the defendant.  He states that the plaintiff was affected by what happened and her enjoyment of daily life was gone.  She stopped going out and stayed at home to avoid people.  He reported the plaintiff avoiding friends and having serious relationship problems but that “luckily her husband understands and stays with her”. 

35. [35]
    He does not state why it was not until December 2011 that he referred the plaintiff to Ms Ind.

Ms Brhea Ind

36. [36]
    The plaintiff first saw Ms Brhea Ind, a psychologist, after a referral from Dr Gubanya, in December 2011. At this time, the plaintiff was experiencing symptoms indicative of extremely severe levels of anxiety, severe levels of depression and moderate levels of stress. These symptoms were reported to Ms Ind by the plaintiff to be as a result of misconduct from a professional person. The plaintiff stated she was having difficulty coping with the trauma and disbelief of the events. The symptoms were described as being exacerbated due to pending complaints made about the defendant.

37. [37]
    Nine reports from Ms Ind to Dr Laszlo are in evidence.

38. [38]
    In her report on 29 March 2012, Ms Ind states that after six sessions of treatment for her severe levels of anxiety, depression and moderate levels of stress, the plaintiff still had difficulties coping in everyday life. This was particularly so after the plaintiff attended a meeting with the Health Department in February 2012 to discuss the complaint she made. This meeting exacerbated the plaintiff’s symptoms of anxiety and depression. The plaintiff told Ms Ind that until she is informed that the defendant is penalised for his indiscretions, she is unable to move forward.

39. [39]
    Ms Ind’s report of 30 September 2014, states that the plaintiff described her marriage as continuing to be a battle and that her husband continues to gamble and that she has had enough. The plaintiff reported struggles with money due to her husband’s gambling. The plaintiff also reported betrayal and anger over one of her daughters whom she had tried to help get back on her feet after an abusive relationship. The plaintiff reported that she had spent her whole life giving to others with little in return and in particular, that she feels she gets little support from her husband.

40. [40]
    In her report of 3 August 2015, Ms Ind states that the plaintiff reported she is attempting to cope with events in her life and that she was very anxious about the impending court matter. The plaintiff reported not filing a report to the police and that until the defendant is punished she will not rest. Further issues with her daughter were reported, including that she had been to the police station to assist her daughter who was in a violent relationship. The plaintiff also reported debilitating pain and spending a lot of time in bed attempting to cope. In particular, that she used bed as a coping mechanism for depression and blocking out her family. Ms Ind opined that due to the significance of the plaintiff’s multitude of issues, she should continue with counselling.

Paul Matsukis

41. [41]
    Mr Paul Matsukis, a registered psychologist, has been involved in the treatment of the plaintiff since March 2017.

42. [42]
    Over these periods, Mr Matsukis describes the plaintiff’s moods to be dysthymic with poor sleeping patterns and regular suicide ideations. The plaintiff reported that her husband was not supportive due to gambling, alcohol issues and that he had labelled her as “tainted” from this sexual assault. On other occasions she reported no appetite, limited future orientation and showering – trying to clean herself from the sexual assault.

43. [43]
    In Mr Matsukis’ view, the plaintiff presented with symptoms of depression and symptoms associated with a diagnosis of post-traumatic stress disorder. She was initially assessed as a high risk of harm to herself and of no foreseeable risk of harm from others or to others. Her risk of harm to herself reduced after a few sessions to much safer levels of risk.

44. [44]
    He reported that initial sessions focused on reducing her risk of harm to herself and exploring her life story “in detail to assess the areas of concern”. His recommendation for any future treatment referred to the plaintiff’s re-exposure to the trauma of the sexual assault due to the current legal process and that the plaintiff was exhibiting symptoms of this traumatic experience like it had just happened.  In his view, once the legal process has completed, the plaintiff will be in a better position to process things in a healthier way.  Mr Matsukis recommended further psychological intervention.  His prognosis was that PTSD is a permanent condition however the symptoms are often temporary.  In his view, the plaintiff would be highly responsive to psychological or psychiatric treatment.  He opined that if the plaintiff accessed psychological intervention after the legal process concluded, the prognosis was positive for a return to normal functioning pre-sexual assault.

Dr Trevor Lotz

45. [45]
    On 7 July 2017, the solicitors for the plaintiff engaged Dr Trevor Lotz, a consultant psychiatrist, to see the plaintiff and prepare a report. A detailed covering letter was attached. The QCAT judgment was also attached.

46. [46]
    In engaging Dr Lotz, the solicitors for the plaintiff set out that the plaintiff had initially attended with them on 7 March 2016, at which time a claim was made under the Personal Injuries Proceedings Act 2002 (PIPA) against the defendant.  It identified that the defendant chose not to actively participate in the PIPA process and that a compulsory conference was convened under PIPA and again, the defendant chose not to attend.  Proceedings were subsequently served upon the defendant and no defence was filed. 

47. [47]
    Dr Lotz held a face to face interview with the plaintiff over 60 minutes. The plaintiff was 70 years of age at the time. In his report, he states the plaintiff described a history of sexual misconduct towards her from Dr Gomez starting around 2005 and that the plaintiff had what appeared to be “a significant anxiety reaction, with the not uncommon reaction of feeling dirty, distressed, violated and humiliated”.  He also refers to the plaintiff attending upon Ms Ind, in late 2011 for her anxiety and depression and that since the alleged incidences, the plaintiff has continued to have significant anxiety and depression to the point of being actively suicidal on two occasions. 

48. [48]
    In my view, the reference to there being a history of sexual misconduct from 2005, exaggerates the incidents pleaded and described by the plaintiff. The defendant’s overall conduct was a serious breach of his position of power, but the first “incidents” can hardly be described as sexual misconduct, although of course the second can.

49. [49]
    In the section of his report under past psychiatric history, Dr Lotz states:

“Ms Grieve appears to have had a traumatic childhood.  This included a foster mother who appeared cruel and persecutory, and she has a history of childhood sexual abuse.  It appears from her current history, that Ms Grieve may be suffering from a complex post-traumatic stress disorder dating back to her childhood.

It is speculated that the alleged incidences with Dr Gomez has caused a relapse of an otherwise covert, Complex Post-Traumatic Stress Disorder.”

50. [50]
    Dr Lotz referred to the plaintiff suffering from diverticulitis and continued back pain from the injury 20 years ago and that the plaintiff also has irritable bowel syndrome. He refers to a WorkCover claim for the back injury some 20 years ago which involved civil litigation.

51. [51]
    Dr Lotz opines that from the plaintiff’s history, her examination of mental state and the documentation, she has “a probable pre-existing diagnosis of complex post-traumatic stress disorder” with a significant relapse as a result of the alleged incidents with the defendant.  He identified that she has become socially withdrawn, distressed, has a sense of being violated and dirty, does not wish to be touched or associated with any men and has not had any intimacy with her husband for over 10 years.

52. [52]
    Dr Lotz does not give a favourable prognosis. He notes it has been close to 10 years since the incidents and the plaintiff continues to have ruminations, a sense of being violated and dirty, no association with males including intimacy with her husband and has bad days where she describes teariness and distress. He opines a PIRS rated at 10 per cent (whole WPI).

53. [53]
    In Dr Lotz’s opinion the plaintiff would benefit from continuing to see Ms Ind and Mr Matsukis on a regular basis and a review of her medication, particularly her psychotropic medication for anxiety and depression, is warranted by a psychiatrist.  Dr Lotz opines that from the history of her childhood, the plaintiff may have developed a complex post-traumatic stress disorder which had been undiagnosed and that the incidents with the defendant has probably triggered a relapse of this disorder as related in her symptomatology and behaviour.

Analysis

54. [54]
    In my view there is a lack of detail, particularity in the evidence. For example, there is no evidence as to why after 20 December 2005, when the defendant asked the plaintiff if she was interested in becoming his mistress, and she rejected him, she returned to see him two years later. The evidence touches on the myriad of issues the plaintiff has faced in her life. I would have expected there to more medical evidence dealing with those issues leading up to 2005 and more importantly 2007. In my view, the incident in April 2007 is the most serious in this case. Dr Gubanya’s evidence is vague and unsatisfactory given that he was the plaintiff’s family doctor for a long time (how long I do not know). He makes no mention of any of the other issues that clearly would have impacted on the plaintiff health, aside from her encounters with the defendant. It is most unfortunate that he cannot access her medical records prior to 2012. There was also no evidence about where there was a gap between April 2007 and late 2011 (one of over four and a half years) before the plaintiff was referred to Ms Ind.

55. [55]
    Despite the flaws in the evidence, I am satisfied that there is sufficient cogent evidence to make an assessment of damages in the plaintiff’s favour.

56. [56]
    I accept the expert medical opinion of Dr Lotz that the plaintiff has a probable pre-existing diagnosis of complex post-traumatic stress disorder and that she had a significant relapse as a result of her encounters with the defendant in 2007.

57. [57]
    I accept that this relapse has resulted in the plaintiff becoming socially withdrawn, distressed, suicidal and that she feels violated and dirty.

Plaintiff’s general damages

58. [58]
    By her pleading, the plaintiff claims the sum of $40,000 for general damages. By her counsel’s written submissions, the sum of $11,000 is claimed. This lesser claim is based on the medical evidence of Dr Lotz, of a PRI assessment at 10 per cent which falls under item 12, moderate mental disorder, at an injury scale value of 10 in the amount of $11,000. I accept this claim is proved and is a reasonable one.^[13]

Past special damages

59. [59]
    I accept the evidence of the plaintiff in relation to her special damages claim and I find that she entitled to the sum of $2,083.46 for past special damages. The plaintiff’s counsel submitted it would be reasonable to award 5 percent interest on the total of the special damages from April 2007 to the present (a period of 10.6 years). I accept that it is not possible to calculate interest on each and every expense for each and every identifiable period, so this approach to calculate interest on the total is reasonable. I do not consider there is a sufficient explanation for such a lengthy delay in bringing the proceeding. But, given that this claim is a small one, and relates to actual expenses incurred, I will allow the interest sought of $1,104.23.

Future special damages

60. [60]
    The plaintiff claims the sum of $9,560 for future damages.^[14]I accept this sum has been proved and is a reasonable one.

Aggravated and exemplary damages

61. [61]
    The plaintiff’s counsel submits that the modest assessment of general damages under the Civil Liability Act 2011 (Qld) guidelines leaves the plaintiff significantly under compensated for the severe consequences of the defendant’s actions.  Before addressing this submission, it is necessary to say something in general about aggravated and exemplary damages. 

62. [62]
    Aggravated damages are awarded to compensate a plaintiff’s increased mental suffering due to the manner in which the defendant behaved.^[15]The plaintiff is entitled to be compensated to the extent she is worse off as a result of the defendant’s actions.  Aggravated damages can be awarded because of the circumstances in which the tort is committed, or by the defendant’s conduct thereafter. 

63. [63]
    In Henry v Thompson [1989] 2 Qd R 412, aggravated damages were awarded because in the course of the assault, the defendants urinated on the plaintiff – a particularly degrading and humiliating act.

64. [64]
    In WAQ v Di Pino [2012] QCA 283, the appellant/plaintiff received damages for trespass in the form of a sexual assault.  The plaintiff sought, but was not awarded, both aggravated and exemplary damages.  The failure to award such damages was the subject of the appeal.  Di Pino, like the present case, involved a psychiatric injury where other significant factors had contributed to the plaintiff’s condition. In dealing with the trial Judge’s rejection of the claim for aggravated damages, the Court of Appeal referred to the High Court’s statement in Uren v John Fairfax and Sons Pty Ltd (1966) 117 CLR 118 (at p 149), that:

“aggravated damages are given to compensate the plaintiff when the harm due to him by a wrongful act was aggravated by the manner in which the act was done.”

65. [65]
    The Court of Appeal in Di Pino (supra), also referred to the compensatory nature of aggravated damages as follows:

“The compensatory nature of aggravated damages requires that in order for them to be awarded, the manner or circumstances in which the defendant’s actionable wrongful conduct was carried out increased the plaintiff’s suffering.”

66. [66]
    In Jordan v Bailey [2015] QDC 34 at [46], his Honour Judge Reid held some concerns and reservations about the role of aggravated damages under the Civil Liability Act 2011 (Qld).  He considered aggravated damages might be awarded separately for any injury capable of assessment under the scheme, where for example: a plaintiff has been assaulted and then been the subject of false imprisonment; and claimed damages for injury to his or her dignity; but does not allege a physical or psychiatric injury arising from that conduct.  Judge Reid considered the scope of such damages may be limited where the conduct complained of goes no further than conduct causing the injury the subject of an assessed injury.   Such a problem faced the trial Judge in WAQ v Di Pino (supra).  On this point, the Court of Appeal said:

“A further difficulty is that in his assessment of damages, the learned Judge did make allowance under some other heads of damage for a number of the features which the appellant has highlighted.”

67. [67]
    In Jordan, Judge Reid considered the position to be different if the defendant had acted at the time of committing the tort or thereafter, with contumelious disregard for the plaintiff’s rights or in an assaulting way or with malice.  In such cases, he identified that damages can be awarded to compensate for the aggravating effect of the harm done by such insulting or malicious conduct.^[16]

68. [68]
    Previously, in Davis & Anor v Bound & Anor [2011] QDC 082, Judge Reid awarded aggravated damages of $25,000 because of the contumelious disregard by the first defendant of the first plaintiff, and because of his aggravating, insulting and provocative conduct towards the first plaintiff during the course of the criminal proceedings.  In Davis the first defendant had brutally murdered the first plaintiff’s son.  As a result of her involvement in the circumstances surrounding her son’s death, the first plaintiff had developed a significant psychological injury.  One of the features of the first defendant’s conduct was that, at the committal proceedings, the first defendant pointed his index and middle fingers at the first plaintiff and cocked his thumb behind them, clearly signifying a gun.  Not surprisingly, the first plaintiff in Davis took this appalling behaviour as a threat and as a consequence lived in real fear that if freed in the future, the first defendant might attempt to kill her.^[17]

69. [69]
    The plaintiff points to the decision of P v R [2010] QSC 139 as having parity with the present case because the consequences suffered by the plaintiff in that case and the plaintiff in this case are similar.  I do not accept this submission for two reasons.  First, in my view, it conflates the issues.  The consequences need to be considered in the context of the aggravating conduct by the defendant.  Second, there is no relevant parity.

70. [70]
    In P v R, the sexual assaults for which the plaintiff claimed damages, occurred when the plaintiff was eight years old and was sexually assaulted by her father’s family friend on six occasions. The assaults included penetration and touching of the vagina, the placing of the defendant’s head between the plaintiff’s legs and the licking of her vagina, the touching on the outside of pyjamas and the rubbing of the defendant’s penis back and forth on the plaintiff’s vagina.  The defendant denied committing the assaults and convinced the plaintiff’s father that the assaults had not occurred. This lead to an irreparable split in the relationship between the plaintiff and her father and this was a contributing factor to the plaintiff’s psychological injury.  The ongoing litigation also exacerbated the plaintiff’s injuries.  This included a settlement being reached, but not formalised, because of the defendant’s refusal to sign terms of settlement.  In these circumstances, the sum of $50,000 in aggravated damages was ordered. 

71. [71]
    There were aggravating features to P v R which do not appear in the present case. Here there is no evidence that the defendant used any violence or persisted with his conduct.  Indeed, after the verbal approaches in 2005, the plaintiff was comfortable enough to return to see the defendant.   There is no suggestion that in relation to the far more serious conduct in April 2007 (the massaging of the breasts and buttocks), the defendant continued with his actions.  He stopped and the plaintiff rolled over after the breast incident.  After the massage of the buttocks, the plaintiff left abruptly. 

72. [72]
    In the present case the defendant has not defended the proceeding and whilst he appeared on the assessment of damages and had the opportunity to challenge the material or cross-examine witnesses, he did not. He has not prolonged these proceedings and he did not prolong the QCAT proceeding.

73. [73]
    Professor Luntz referred to the following conditions for the award of aggravated damages (omitting references to authorities):^[18]

“1.7.10 As with exemplary damages, aggravated damages may be awarded where the defendant has acted, either in committing a tort or thereafter, with contumelious of the plaintiff’s rights, in an insulting or high handed way or with malice.  The additional factor, which is required is that such conduct must have increased the plaintiff’s suffering.”

74. [74]
    In the present case, there was no subsequent conduct by the defendant that could be said to justify an award of aggravated damages.

75. [75]
    All of the evidence in this case points to the plaintiff’s suffering being due to a number of issues in her life, not only the defendant’s actions.

76. [76]
    That said, (and it is finely balanced), I consider that there is an additional factor that warrants an award of aggravated damages in this case. That factor is that the impugned conduct was by the plaintiff’s doctor. He was in a position of power and trust. The plaintiff was clearly a vulnerable woman. The defendant took advantage of her. That it was her doctor who carried on in such a way has, I accept, increased the plaintiff’s suffering. In these circumstances, I consider a small award for aggravated damages is appropriate.

77. [77]
    The plaintiff contends for an award of damages of $50,000. I do not consider that the aggravated damages to be awarded in this case have any parity with P v R (where $50,000 was awarded) or Davis (where $25,000 was awarded).^[19]In the present circumstances, I assess the quantum of the aggravated damages at $15,000. 

78. [78]
    The plaintiff submits that it is appropriate for the court to award 10 per cent interest on the claim for aggravated damages for a period of 10.6 years (that is from April 2007, when the significant assault occurred).^[20]

79. [79]
    Interest is awardable on aggravated damages (but not exemplary damages) up to the time of judgment.^[21]I accept I have an unrestricted discretion in regard to my power to award interest on aggravated damages claimed pursuant to s 58 of the Civil Proceedings Act 2011 (Qld). 

80. [80]
    I am of the view that some interest ought to be awarded in this case, but not for the full period of 10.6 years. The delay in the plaintiff commencing proceedings has not, in my view, been adequately addressed. On the evidence before me, there were a number of events and issues in the plaintiff’s life over the years for which interest is claimed. No delay can be attributed to the defendant. In these circumstances, I will allow interest on the sum of $15,000 for a period of 3 years at the rate of 10 per cent. This results in a figure of $4,500.

Exemplary punitive damages

81. [81]
    It is uncontroversial that aggravated and exemplary damages are separate and distinct awards that can be made in proceedings based on tort.^[22]Exemplary damages are punitive damages and are intended to punish a defendant for a contumelious disregard of a plaintiff’s rights and also to act as a deterrent.  The plaintiff in the present case submits that the effects of the defendant’s conduct on the plaintiff and the defendant’s conduct itself should be the subject of separate assessments. 

82. [82]
    The plaintiff submits that the six months suspension of the defendant’s registration and right to continue practice afterwards on conditions was a nominal punishment for a doctor approaching retirement age. I do not accept this submission. In my view, this was a significant punishment for a professional nearing the end of his career. The decision is a publically available admonishment of the defendant.

83. [83]
    The plaintiff also refers to the defendant not being charged, convicted or punished for his conduct in a criminal court and on that basis alone, an award of exemplary damages is warranted. It is difficult to see how all of the defendants conduct can be viewed as a criminal offence. All of his conduct is certainly relevant to the disciplinary proceedings. In any event, whilst I accept she had good reasons, the plaintiff did not make a complaint to the police.

84. [84]
    The plaintiff submits that the defendant having suffered no penal sanction for his offending conduct means that the consequences of his behaviour can be likened to the suffering by the plaintiffs in cases such as K v G [2010] QSC 13 and P v R.  The plaintiff accepts that the conduct of the defendant in this case in no way approaches the conduct of the defendant in P v R, where $50,000 was awarded for exemplary damages, but submits that an award of $30,000 for exemplary damages is warranted. 

85. [85]
    When deciding whether an award of exemplary damages is appropriate, the correct approach has been said to be to consider whether:

1. (a)
   there are circumstances which justify some punishment of the defendant; and

2. (b)
   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 (including his financial circumstances).^[23]If not, then the court will proceed to award some additional sum by way of exemplary damages, so the total figure is appropriate in that way.^[24]

86. [86]
    In bringing the application seeking the Mareva Orders, the plaintiff clearly had concerns about the defendant’s ability to pay any judgment sum.

87. [87]
    The defendant has only one known asset, a mortgaged property, which in August 2017 was up for sale, with offers over $539,000 being considered. In the affidavit material filed on behalf of the plaintiff in the Freezing Order proceedings, the plaintiff referred to the defendant’s suspension as a doctor in September 2015 and that she was unaware whether the defendant had resumed practice as a doctor or had any other alternative income source. There was no evidence that the defendant is or has been working since his suspension expired. But I note that prior to the QCAT judgment he had not been working. Given this suspension, the continuing restrictions and his age, I infer that he may not have been able to regain employment.

88. [88]
    In my view, this is not an appropriate case for an award of exemplary damages. I am not persuaded that the award of damages already assessed would not be a sufficient punishment to the defendant.  The overall circumstances of this case are not such that would justify some punishment of the defendant by way of exemplary damages. 

Conclusion

89. [89]
    For the reason above, I assess damages as follows:

Costs

90. [90]
    During the course of the oral submissions, counsel for the plaintiff quite properly identified that any damages awarded would be less than the jurisdiction of the District Court, but submitted that costs ought to be awarded on the District Court Scale because:

1. (a)
   There were complexities in this case because it involves sexual offences of some years ago;

2. (b)
   There were limitations of action issues which had to be addressed when leave was granted to commence proceedings – but that it was not necessary for an application to be brought for an extension of time at that stage;

3. (c)
   Had limitation issues been raised in these proceedings, the plaintiff would have had to bring an application for an extension of time to prosecute the proceedings, relying upon the material fact, namely the QCAT proceedings as being the material fact entitling an extension of time;

4. (d)
   There was a fairly complex inter-relationship between the Personal Injuries Proceedings Act 2002, Civil Liability Act 2011 (Qld) and the Common Law; (but as it turned out, this did not have to be the subject of a dispute because no defence was filed and because no defence was filed, there was no application for a transfer by the defendant to the Magistrates Court) and

5. (e)
   There was also a Freezing Order made in these proceedings after they were commenced which, the Magistrates Court had no jurisdiction to make.

91. [91]
    Rule 697 of the Uniform Civil Procedure Rules 1999 relevantly provides that:

“697 Costs of proceeding in wrong court

1. (1)
   Subrule (2) applies if the relief obtained by a plaintiff in a proceeding in the Supreme Court or District Court is a judgment that, when the proceeding began, could have been given in a Magistrates Court.
2. (2)
   The costs the plaintiff may recover must be assessed as if the proceeding had been started in the Magistrates Court, unless the court orders otherwise.
3. (3)
   Subrule (4) applies if the only relief obtained by a plaintiff in a proceeding in the Supreme Court is relief that, when the proceeding began, could have been given by the District Court, but not a Magistrates Court.
4. (4)
   The costs the plaintiff may recover must be assessed as if the proceeding had been started in the District Court, unless the court orders otherwise.” [emphasis added]

92. [92]
    The plaintiff relied on Connolly v Queensland Rugby Union [2017] QDC 251 to support the submission that costs should be awarded on the District Court Scale. In that case, Judge Dorney QC considered it was appropriate to award District Court Costs for a matter where the ultimate recovery was in the Magistrates Court. In doing so, he considered the relevant factors included the complexity of the matter, the amount of the claim and the ultimate judgment.^[25]

93. [93]
    In my view, there is no reason why costs should not follow the event and be paid in accordance with the Magistrates Court scale as provided for (without other order) under UCPR r 697. It is difficult to fathom why the proceedings were commenced in the District Court in the first place. The amounts claimed were unreasonably high (particularly the claims for exemplary and aggravated damages).

94. [94]
    In this case, I have determined judgment in favour of the plaintiff for an amount less than $50,000. This amount is well within the Magistrates Court jurisdiction. Accepting for arguments sake there may have potentially been some complex issues that required consideration, in my view, the Magistrates Court is well capable and often hear matters of such a nature. If proceedings had been instituted in the appropriate jurisdiction, any application for Freezing Orders could have been made in the District Court with costs assessed under that scale.

95. [95]
    Balancing all of the relevant considerations, in my view the appropriate costs scale for costs on the assessment of damages hearing in this case is the Magistrates Court Scale. I certify that Counsel and his instructing solicitor’s attendance was necessary at the hearing.

96. [96]
    It is appropriate that the reserved costs for obtaining the Mareva Orders be paid on the District Court Scale.

Orders

97. [97]
    Accordingly, I make the following orders:

1. The defendant pay the plaintiff the sum of $43,247.69 including interest of $5,604.23.

2. The defendant pay the plaintiff’s costs of the proceeding including reserved costs (if any) to be assessed [on the Magistrates Courts Scale].

3. The defendant pay the plaintiff’s costs of obtaining the Mareva Orders to be assessed on the District Court Scale.