Supreme Court New South Wales Medium Neutral Citation: Haynes by her tutor Karen Lindley v Haynes [2022] NSWSC 581 Hearing dates: 16 September 2021 Date of orders: 18 May 2022 Decision date: 18 May 2022 Jurisdiction: Common Law Before: Lonergan J Decision: (1) Judgment for the plaintiff in the sum of $840,000. (2) The defendant is to pay the plaintiff's costs. Catchwords: CIVIL PROCEDURE – summary disposal – judgment for the plaintiff – no appearance - no defence DAMAGES – assessment – general damages – sexual assaults – Civil Liability Act 2002 NSW not applicable by operation of s 3B(1)(a) – significant psychiatric and physical injury – aggravated damages TORTS – intentional torts – trespass to the person – assault – battery – dissociative identity disorder – egregious repeated abuse and gratuitous cruelty Legislation Cited: Civil Liability Act 2002 (NSW) Crimes Act 1900 (NSW) Evidence Act 1995 (NSW) Limitation Amendment (Child Abuse) Act 2016 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Lamb v Cotogno (1987) 164 CLR 1 MBP (SA) Pty Limited v Gogic (1991) 171 CLR 57 State of New South Wales v Riley (2003) 57 NSWLR 496 Varmedja v Varmedja [2008] NSWCA 177 XY v Featherstone [2010] NSWSC 1368 Category: Principal judgment Parties: Jennifer Margaret Haynes by her tutor Karen Lindley (Plaintiff) Richard John Haynes (Defendant) (no appearance) Representation: Counsel: M Keaney (Plaintiff) Solicitors: GJ Gooden, Solicitor & Notary Public (Plaintiff) File Number(s): 2019/131818 Publication restriction: Nil Judgment 1. The plaintiff, Jennifer Haynes, now 52 years old, seeks summary judgment and damages from her father the defendant, for trespass, battery and personal injury in the nature of sexual abuse. The abuse occurred between 1974 and 1981 when Jennifer was 4 to 11 years of age. Jennifer has consented to her identity being known and published (s 578A(4) Crimes Act 1900 (NSW)). 2. Jennifer sues through a tutor because the horrific abuse inflicted upon her by her father caused her to develop a dissociative personality disorder known as dissociative identity disorder, (DID), in response to the repeated trauma. 3. A number of incidents of sexual abuse were the subject of criminal proceedings. The defendant admitted guilt in respect of a number of these incidents of sexual abuse. He was sentenced by Judge Huggett in September 2019 to an aggregate term of imprisonment of 45 years with a 33 year non-parole period for those admitted abuses. He is not eligible for release from jail until 4 January 2050. Given he is currently 77 years old, it is unlikely he will be alive at the time of potential release. 4. By statement of claim filed on 23 April 2019, Jennifer claimed damages for assault and battery, psychiatric and psychological injury as well as aggravated and exemplary damages. 5. The claim for exemplary damages initially pleaded in the statement of claim was specifically abandoned at the hearing on 16 September 2021. [1] 6. There was also initially a claim made for domestic assistance and loss of earnings, but those heads of damage were unequivocally abandoned at the hearing and the position formalised in the Amended Statement of Particulars filed on 15 September 2021. The damages claim is thus confined to general damages, and, if appropriate, aggravated damages. 7. Section 3B(1)(a) of the Civil Liability Act 2002 (NSW) provides relevantly that the provisions of the Act do not apply in respect of civil liability for an intentional act that is sexual assault or other sexual misconduct committed by the person. 8. The abuse occurred a very long time ago. This claim can be pursued because of the removal of limitation periods for child abuse actions. This occurred in 2016 by the enactment of the Limitation Amendment (Child Abuse) Act 2016 (NSW). Section 6A effectively removes the relevant limitation period(s) and Clause 9 of Schedule 1 to that Act makes the amendment retrospective. 9. It is clear that the defendant is aware of the proceedings, having been served with the statement of claim on 12 May 2019 [2] . He has never filed an appearance or defence or taken any active role to defend the allegations, despite observing various directions hearings before the Registrar. Given those circumstances and the subject matter and nature of the case brought against him, I considered it unnecessary for arrangements to be made by the Court for his AVL attendance for what would have had to have been passive observation of the hearing on 16 September 2021. 10. For the reasons that follow, I have concluded that judgment should be entered in favour of Jennifer and damages assessed at $840,000. The Evidence 1. The evidence tendered comprised an affidavit of the tutor, Karen Lorraine Lindley, (Ms Lindley), sworn 9 September 2021, which deposed to the origins of her involvement with Jennifer and outlined Jennifer's past and current situation. 2. The following material was exhibited to the affidavit: 1. A Certificate of Conviction from the Sydney District Court dated 7 September 2021 listing the charges for which the defendant was convicted and sentenced, together with a list of the indicative sentences; 2. The remarks on sentence of Judge Huggett dated 6 September 2019; 3. An expert certificate of Dr G Blair-West, Psychiatrist, dated 17 April 2013; 4. An expert report of Dr G Blair-West dated 12 September 2019; 5. A report of Professor Dianna Kenny, Psychologist, dated 17 July 2017; 6. A report of Ms Karina Johnson, Psychologist, dated 2 July 2021; 7. An expert certificate of Dr Carina Chow, Colorectal Surgeon, dated 16 January 2015; 8. Jennifer's academic transcript from the University of Queensland; 9. Eight very detailed statements made by Jennifer to the NSW Police, completed on 20 May 2011 in respect of abuses by the defendant committed in 1974, 1975, 1976, 1977, 1978, 1979, 1980 and 1981; 10. A victim impact statement provided at the sentencing hearing before Huggett J; 11. An order of the High Court of Justice, Queens Bench Division, regarding the preservation of assets of the defendant; 12. Completion Statement regarding the sale of property of the defendant in Durham, United Kingdom. 1. Whilst formal rulings were not requested or made at the time of the tender of the affidavit, I do not read, and in effect exclude from the evidence items 2, 10, 11 and 12 listed in [12] above. 2. In respect of item 2, Huggett J's remarks on sentence, s 91 of the Evidence Act 1995 (NSW) precludes their admission into evidence. Section 91 provides: 91 Exclusion of evidence of judgments and convictions (1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding. (2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose. 1. Her Honour's remarks on sentence understandably include various findings of fact. Further, the proposed use of the remarks on sentence do not fit within any of the exceptions set out in s 92 of the Act: 92 Exceptions (1) Section 91 (1) does not prevent the admission or use of evidence of the grant of probate, letters of administration or a similar order of a court to prove— (a) the death, or date of death, of a person, or (b) the due execution of a testamentary document. (2) In a civil proceeding, section 91 (1) does not prevent the admission or use of evidence that a party, or a person through or under whom a party claims, has been convicted of an offence, not being a conviction— (a) in respect of which a review or appeal (however described) has been instituted but not finally determined, or (b) that has been quashed or set aside, or (c) in respect of which a pardon has been given. (3) The hearsay rule and the opinion rule do not apply to evidence of a kind referred to in this section. 1. Section 92(2) allows the Certificate of Conviction (item 1) to be tendered and relied upon and so to that extent I have confirmation of the defendant's convictions for the identified offences. The Certificate alone cannot be used to prove the facts that gave rise to the offences for which he was convicted: s 91(1). 2. The defendant did not dispute the Statement of Facts. He entered guilty pleas. There was no appeal from the sentence imposed by Huggett J. 3. Section 178 specifically provides for certificate evidence of decisions: 178 Convictions, acquittals and other judicial proceedings (1) This section applies to the following facts— (a) the conviction or acquittal before or by an applicable court of a person charged with an offence, (b) the sentencing of a person to any punishment or pecuniary penalty by an applicable court, (c) an order by an applicable court, (d) the pendency or existence at any time before an applicable court of a civil or criminal proceeding. (2) Evidence of a fact to which this section applies may be given by a certificate signed by a judge, a magistrate or registrar or other proper officer of the applicable court— (a) showing the fact, or purporting to contain particulars, of the record, indictment, conviction, acquittal, sentence, order or proceeding in question, and (b) stating the time and place of the conviction, acquittal, sentence, order or proceeding, and (c) stating the title of the applicable court. (3) A certificate given under this section showing a conviction, acquittal, sentence or order is also evidence of the particular offence or matter in respect of which the conviction, acquittal, sentence or order was had, passed or made, if stated in the certificate. (4) A certificate given under this section showing the pendency or existence of a proceeding is also evidence of the particular nature and occasion, or ground and cause, of the proceeding, if stated in the certificate. (5) A certificate given under this section purporting to contain particulars of a record, indictment, conviction, acquittal, sentence, order or proceeding is also evidence of the matters stated in the certificate. …. 1. The Certificate of Conviction is admissible to prove the fact of the convictions, (and so the particular offences), but the indicative sentences included in the Certificate in my view should be excluded from my consideration as they reflect, amongst other things, findings of objective seriousness made by her Honour that underpin her remarks on sentence. Whilst in a different guise and context, such findings are different and separate to the conclusions this Court needs to reach and the findings that must be made in the context of these proceedings for damages. 2. Item 10 should be excluded as the role of a victim impact statement is a circumscribed one, relevant to the discrete task of sentencing of the offender. In any event, the statements to police contain a great deal of evidence about how the sexual abuse has affected Jennifer both at the time it occurred and now. 3. Items 11 and 12 do not pass the relevance test. Neither document is a matter that could rationally effect, directly or indirectly, the existence of the probability of a fact in issue in the proceedings (s 55 of the Evidence Act). The defendant's property and asset situation is not an issue in the proceedings. Background 1. Jennifer was born in January 1970 in the United Kingdom. She lived in a town in Kent with her mother, an older sister and younger brother and the defendant. The family emigrated to Australia in 1974 when the plaintiff was four years and four months old. 2. The sexual assaults began shortly after arrival and continued when the family moved back to the UK in 1981 when Jennifer was aged 11. Jennifer claims only for assaults that occurred in Australia. Those assaults all occurred at home in Dulwich Hill and Greenacre. 3. After divorcing the defendant, Jennifer's mother returned to Australia with Jennifer and her brother, arriving in November 1988. 4. The defendant was extradited from the United Kingdom in February 2017 to face the charges Jennifer levelled against him. 5. Jennifer's initial psychiatric and psychological history is somewhat difficult to piece together because the medical evidence does not commence until 1998 with the involvement of Dr Blair-West. Ms Lindley deposed to having been told by Jennifer that whilst living in the UK Jennifer had sudden blackouts in late adolescence that led to an initial diagnosis of epilepsy. There is no expert material setting out the asserted diagnoses and treatment in the UK. There are no experts named, or reports provided, regarding the asserted treatment for epilepsy by "a number of experts" in Australia after her return in 1988 as asserted by Ms Lindley. 6. It is asserted by Ms Lindley that in around 2000, a new diagnosis was identified, namely DID, and Jennifer was referred to Dr George Blair-West [3] for treatment. (a) Dr Blair-West – Psychiatrist 1. Dr Blair-West prepared a statement in 2013 in which he outlined his diagnosis and treatment of Jennifer between 1998 and 2013. It relevantly stated: "7. At her initial presentation she spoke of her experiences of having being repeated molested by her father from a young age. In the previous year she had been involved in proceedings against her father regarding his molestation of both her and her older sister, Francis. Ms Haynes gave an exhaustive history of repeated sexual abuse by her father from a very young age that involved violent attacks with oral, vaginal and anal rape. She spoke of being aware of having different parts to her personality and the needs to have a notice board in her mind that was used by her various alters (as they are technically known) to allow Internal communication such that she could present a reasonable stable face to the outside world. 8. I diagnosed her as suffering with Dissociative Identity Disorder (DID). This condition is nearly always associated with gross sexual abuse commencing prior to the age of eight. Ms Haynes reported that her abuse began around the age of eighteen months and continued until her parents separated when she was aged fourteen. It Is important to appreciate DID is a Post Trauma Syndrome that is an adaptive response to repeated psychologically overwhelming traumatic experiences. It is not an illness in the way that schizophrenia, with which is often confused, is an illness that involved disordered pathophysiology. 9. Indeed, certain functions especially memory, are heightened in people with this condition as various alters have recollections of the events that they were involved in that are unclouded by other experiences and that do not decay over time. More recently I undertook objective testing involving the Dissociative Experiences Scale. With this instrument Ms Haynes scored 80, which is the highest score that I have seen, despite treating many people in this area of Posttrauma Syndromes who suffer with Dissociative Disorders. A score of more than 30 represents a "higher association with Dissociative Identity Disorder." Accordingly, the diagnosis in Ms Haynes case is not in question. 10. Over time I have address Ms Haynes clinical picture with a range of modalities in therapy. The most important intervention that I have utilised, with good result, has been Eye Movement Desensitisations and Reprocessing (EMDR). This is a therapy that was developed specifically for the management of Posttrauma Syndromes and is one of a small number (two or three in most countries) of interventions that have been scientifically proven and recognised to be effective in the management of Posttrauma Syndromes. This treatment typically brings about both the desensitisation of the distress associated with the trauma and a reprocessing that allows the individual to recognise that they were not responsible, in the case of early childhood sexual abuse, for what happened to them, along with other changes. The perpetrator in this instance, Ms Haynes's father, like most perpetrators went to some lengths to have her believe that it was her actions that resulted in her sexual abuse. Typically he would couch abusing her in terms of her being punished for wrong doings on her part. 11. Ms Haynes has been damaged both psychologically and physically by her father through his abuse. I am not qualified to go into detail in outlining and quantifying the damage made to various parts of her anatomy. I will comment, however, that the injuries and problems that she reports with her jaw, teeth, bowel and anus are all consistent with a history of violent and repeated sexual abuse that extended over many years. 12. Psychologically this woman has been damaged to the extent she is unable to function in an employed capacity at any level. I will note that she was able to complete undergraduate and postgraduate studies at university, largely because she was able to do this on her own terms and in her own time. The psychological damage that she has sustained has meant that she has been unable to participate in health relationships as an adult. She is unable to function in a normal health sexual relationship. Indeed, she has been unable to even enter into a short-term relationship with a member of the opposite sex. 13. Now, at the age of forty-two she continues to reside with her elderly mother. She is able to function at a level such that she can complete most of the activities of daily living and live quite independently, albeit with the support and company of her mother. She has a very limited social life with few friends. Her considerable intellect and her upbeat demeanor belie her underlying, on going difficulties with functioning in the modern world. 14. Her psychiatric condition has Improved with therapy and she has achieved a degree of integration such that she now has significantly fewer alters tan when I first started working with her. Her moods are more stable and she dissociates less frequently than she did previously with a much higher level of co­consciousness between her various alters. Medical care is a particular challenge for her especially when it comes to dental care and gynecological treatments. She has only just been able to allow herself to received medical care for her various abuse-related conditions and only after intensive therapy to allow this to proceed. She continues to have difficulty with health professionals who are male. 15. In terms of her longer prognosis I expect that her condition will slowly improve with therapy and with the emotional resolution that would come with being able to see her father successfully prosecuted for his crimes against her. Achieving this latter, outcome has taken up a significant part of her waking life over recent years. I am unsure as to how she would cope were she to lose her mother. She does enjoy a supportive relationship with her younger brother who, unfortunately, lives interstate. 16. In summary, the cause of Ms Haynes' psychiatric condition and related disability is the physical, sexual and emotional abuse that she experienced at the hands of her father from a young age. There is no doubt in my mind as to the mechanism of injury in this case. Dissociative Identity Disorder is a debilitating condition - particularly when it does untreated until late in adulthood. As a psychiatrist specialising in trauma therapy with over twenty-five years experience in the field, I would point out that Ms Haynes traumatic experiences and subsequent disability fall at the severe end of the spectrum." (b) Dr Chow – Colorectal Surgeon 1. In 2010 Jennifer was referred to Colorectal surgeon Dr Chow, for management of her severe constipation and anal pain. Dr Chow says in her report that Jennifer outlined some of the abuses that involved insertion into her anus of objects such as crochet hooks, a rolling pin, a hammer, a chisel and a soldering iron that had been switched on. Dr Chow noted that Jennifer had great difficulty opening her bowels and would not do so for up to four weeks at a time and then would have to use aperients and manual evacuation. 2. In November 2010 Dr Chow performed a temporary colostomy by keyhole surgery and an endoanal ultrasound under general anaesthetic as the plaintiff was unable to tolerate any anal examination for which she was conscious. 3. Dr Chow located a sphincter injury which she stated could have been the result of the anal abuse described. Dr Chow also diagnosed chronic constipation with severe obstructed defecation. 4. On further examination in February 2011, Dr Chow discovered a rectocele (i.e., a laxity of the wall between the rectum and vagina) and a tender mobile coccyx which was likely dislocated. Dr Chow noted that rectocele is a common problem with women who have given birth and is also consistent with chronic anal and vaginal penetration like the history of abuse that Jennifer had provided. The dislocated coccyx was also consistent with the history provided but it could also be caused during childbirth or falling heavily. 5. Dr Chow stated that due to what she described as "Jennifer's abiding unwillingness to open her bowels at all", and after discussion with other colorectal surgeons, pain management specialists and Jennifer's GP, Jennifer agreed to permanent colostomy. This was performed in May 2011 and entailed the removal of her rectum and anus as well as removal of her coccyx to alleviate pain. Dr Chow stated that in her opinion Jennifer "improved enormously physically and emotionally after the procedures". 6. Jennifer had worked intermittently as an assistance nurse and assistant diversional therapist between 1988 and 1990. She enrolled in the University of Queensland and whilst there undertaking her Doctorate between 2000 and 2005, made some money tutoring. She otherwise has been in receipt of a disability pension, presumably related to her DID although no documents were tendered that evidenced that was the basis. 7. Jennifer received $50,000 victims' injury compensation in 2017. Whilst no documentation about that was tendered, my understanding is that any such payment must be refunded to the Victims Injury Compensation Board or taken into account if there is a successful recovery of damages in a civil case. (c) Professor Kenny – Psychologist 1. A report of Professor Kenny, Professor of Psychology, dated 17 July 2017 (apparently prepared for the criminal proceedings) outlined the definition, diagnostic criteria, aetiology and nature of DID and its associated features and issues: 1.0 Definition of DID 1.5 The aetiology of DID is trauma-based; it arises in response to repeated abuse, usually by a primary caregiver, over an extended time period, starting at a very young age (usually before the age of five years). There are frequently multiple forms of mistreatment, including emotional, physical and sexual abuse. 1.6 Dissociation is, at first, an adaptive process that is used defensively to manage overwhelmingly traumatic experiences. However, it evolves over time into a maladaptive or pathological process that continues even after the traumatic experiences have ceased. 1.7 Dissociative processes may also be non-pathological, biologically-based survival strategies that are automatic and reflexive time-limited reactions that dissipate once the threat/danger is passed. 1.8 The child likely to develop a dissociative disorder in response to repeated trauma has a constitutional capacity to go into trance (self-hypnosis), which may be observed as daydreaming or spacing out, and/or grows up in a family environment that affords no opportunity to acknowledge or process the traumatic experiences. 1.9 Dissociative identity disorder is characterized by (a) the presence of two or more distinct personality states and (b) recurrent episodes of amnesia. Observers notice sudden discontinuities in speech, affect, and behaviour in the individual suffering DID. 1.10 Non-epileptic seizures and other conversion symptoms are prominent in some presentations of dissociative identity disorder. …. 3.0 Alternate identities 3.1 In a small number of individuals with DID, distinct alternate identities (i.e., distinct personality states) are a feature of the DID presentation. They may manifest during periods of intense stress or internal psychological conflicts. 3.2 These separate identities manifest as stable, discrete sets of characteristics including a sense of self, body image, behaviours and state dependent memories. Distinct physiological and neuropsychological concomitants have been identified f r these separate alternative identities. Differences include visual acuity, heart rate, blood pressure, plasma glucose levels, immune function, brain activation, evoked potentials, and regional cerebral blood flow, among others. 3.3 A number of different terms have been used to describe alternate identities in DID, including alter, alter personality, part, self-state, disaggregate self-state, dissociated state. These terms all refer to essentially the same process. 3.4 DID, specifically alternative identities, almost always develop during childhood - it is rare to encounter an adult-onset DID in response to trauma in adulthood, unless it occurs in the context of pre-existing childhood trauma. 4.0 Aetiologies of DID 4.1 "Betrayal" trauma is a type of trauma whereby caregiver-child attachments are severely ruptured rendering the child unable to integrate the abusive experiences1. Fragmentation and encapsulation of traumatic experiences serve to protect relationships with important, though inadequate and abusive caregivers. These dissociated states encapsulate the intolerable and overwhelming experiences, memories, affects, and perceptions regarding the abuse, thereby allowing for normal maturation in other developmental domains, such as intellectual, interpersonal, sporting, and artistic endeavours. Thus, early life dissociation may support the child's development at a critical time when any form of adult support is absent. 4.2 Other etiological factors in the development of DID include (i) capacity for dissociation; (b) experiences that overwhelm the child's coping capacity; (ii) secondary structuring of DID alternate identities with individualized characteristics such as names, ages, genders; and (iii) a lack of soothing and restorative experiences, which render the child isolated or abandoned and needing to find his or her own ways of moderating distress. 4.3 A third model, described as the "structural dissociation of the personality" describes a traumatized individual's attempt to cope with the failure to integrate systems of ideas and functions of the personality following extreme trauma. The personality then bifurcates into the apparently normal part of the personality and a part of the personality dedicated to defending against the trauma. Thus, DID does not arise from a previously integrated personality that fragments or shatters. Rather, it represents a profound failure of normal developmental integration caused by overwhelming trauma in the absence of "safe havens" such as other caring adults or places where the child can go to avoid the abuse. 5.0 Associated features and comorbidity in DID 5.1 Individuals with DID may present with comorbid depression, anxiety, substance abuse, self-injury, non-epileptic seizures, self-harm and/or suicidal behaviours. They often conceal, or are not fully aware of, disruptions in consciousness, amnesia, or other dissociative symptoms. 5.2 Many individuals with DID report dissociative flashbacks during which they undergo a sensory reliving of a previous event as though it were occurring in the present, often with a change of identity, a partial or complete loss of contact with or disorientation to current reality during the flashback, and a subsequent amnesia for the content of the flashback. Individuals with PTSD also report similar experiences. (Dutra, Bureau, Holmes, Lyubchik, & Lyons-Ruth, 2009). 5.3 Alternative identities develop in response to persistent severe attachment trauma occurring before the age of five years. 1. Professor Kenny was provided with amongst other things, Jennifer's eight police statements. Extracted parts of her account were included in Professor Kenny's report as illustrations of dissociation and the development of the dissociation disorder continuing to afflict Jennifer. 2. Some of the examples of dissociation identified by Professor Kenny in her report follow: 10.0 Dissociation in the abuse history of Jennifer Haynes 10.1 In order to demonstrate some of these theoretical concepts as they present in the case of Jennifer Haynes, some examples of developing dissociation are presented below. These are taken from the transcripts of statements from Jennifer Haynes recorded by police. They show a steady development of a number of dissociative processes that assist her to cope with the escalating abuse. 10.1.1 Early abuse occurring at four years of age (c. 1974): Statement of Jennifer Haynes, #1, 20 May 2011, p.8, following vaginal penetration: "tried to move I got Intensely painful pins and needle type pricking sensations in my legs and knees. I moaned with the pain but continued to force my legs to uncross. As I got my knees to move I felt Intense shooting pains in my legs and knees and I stopped moving. It hurt and I felt sicker than ever. I tried to swing my body around on the chair so I was sitting properly with my back to the sofa back instead of sitting sideways and I put out my hands. That is when I realised that one of my hands was still clenched tightly. My clenched hand ached and as much as I tried to get my hand to open it had locked into a fist and would not unclench. It hurt terribly." This account indicates a dissociated body part - her clenched hand that did not respond to her attempts at voluntary control. 10.1.2 Early abuse: Statement of Jennifer Haynes, #1, 20 May 2011, p.9-10: "I held my hand out for Sweep (her puppet), only for Dad to hide him once more. Dad sat very close to me and stroked my legs and he kept playing with Sweep. The more he played with Sweep the further up my legs he stroked until his finders slipped under my skirt. I was focused on what he was doing with Sweep and how he was making Sweep disappear, I ignored him touching under my skirt for a long time. It was only when Dad picked up my legs and slipped his body underneath my legs that I really paid attention to his touch. This account indicates selective focus (tunnel vision) on her puppet and attempts to ignore her father's sexual touching." 10.2.3 Masturbating father in the toilet: Statement of Jennifer Haynes, #1, 20 May 2011, p.19: "Dad said '"Good" and leaned forward and flushed the toilet. He wiped over the toilet bowl with toilet paper and dropped the paper in the toilet and flushed again. Then he slipped his penis inside his trousers and I heard a zipper again. Dad stepped away from the toilet and tapped me on the back and said "Run along now." I turned and ran from the room and into the living room to start playing again. My hands and arms hurt and ached. My shoulders felt very stiff but I didn't know how to make It better." This statement indicates that she is already starting to compartmentalize her sexual abuse experiences - something she has to endure before she can go back to childish pursuits, like playing. 10.2.4 During another assault in which her father was masturbating her in such a way as to cause great pain, Jennifer reported "I tried again, and said, 'No, Daddy, No. Again Dad did not stop nor did he speak to me. It was as if I did not exist except as a toy for him to play with" [Statement of Jennifer Haynes, #1, 20 May 2011, p.27]. Here we see the beginning of feelings of depersonalization/derealisation. A little later, in this account of the same instance of abuse, Jennifer says, "My movements were completely out of my control. My body was reacting to the pain and I could not help moving" (p. 28). 10.2.5 During a vicious physical assault with his leather belt, Jennifer lost consciousness and when she came to she "was curled up in a ball on the floor by the twin tub. [She] had [her] hands over [her] head and was tucked as close into my chest as possible" [Statement of Jennifer Haynes, #6, 20 May 2011, p.115]. She had "lost time" when she felt her "body fall and then everything went black." 10.2.6 Statement of Jennifer Haynes, #7, 25 October, 2010, after a savage anal rape. These statements describe her experiences from 1980 when she was 10-years-old. Here there are more explicit statements suggesting dissociation from time and place: "…. My body was hurting badly and I seemed to be floating and I had a sensation of not really being there. I kept jerking back into my body and then floating away again only to come back with a terrific jerking sensation." …. 1. The effects of DID were also identified in Professor Kenny's report: 11.0 Effects of DID (In addition to conditions presented in section 5.0) 11.1 Adverse psychological symptoms of DID include dissociation, dissociative amnesia, fugue, stupor, trance and possession disorders or identity disorders, and PTSD. 11.2 Somatization, eating disorders, hostility, anxiety, depression, alexithymia, social dysfunction, maladaptive schemas, self-destruction, and adult victimization are all outcomes of DID. 11.3 Consequences of the above include Inability to work, develop or maintain friendships or intimate relationships. 11.4 Physical impairments arising from the severe sexual abuse that caused the DID include colo­rectal damage, which in severe cases requires surgical repair up to and including colostomy and colectomy (as a result of anal rape). Victims may also experience a range of gynaecological problems that include chronic pelvic pain, pelvic inflammatory disease and other sexually transmitted infections, infertility, bladder and yeast infections, severe premenstrual symptoms, menorrhagia, dysmenorrhoea, vaginal discharge, problem passing urine, sexual dysfunction, dyspareunia, sexual anhedonia, and anorgasmia. (d) Ms Johnson – Psychologist 1. Jennifer was referred to see Ms Johnson, Psychologist, in November 2019 for supportive therapy, based it seems, on NDIS intervention. In her report dated 2 July 2021, Ms Johnson stated: "Jennifer was referred to Afford Psychology services in November 2019 to assist with increasing her ability to understand social norms, increase her social participation, increasing her capacity, regaining control of her body, increasing her ability to participate in society, increasing her ability to understand normal relationships and reducing her disability's impact on her life. The following information is based on face to face intervention with Jennifer, information from her family, reports from her psychiatrist, information from her previous psychologist, information from her support coordinators, media information, information from her support workers and her NDIS service providers case workers. Jennifer has been engaged in psychological support with the author since the 6th of December 2019, on a regular basis. Usually occurring fortnightly within her home, with sessions lasting between 2-4 hours. Jennifer is a 51 year old female that lives with her mother. Jennifer experienced significant extreme trauma from the age of four, resulting in both psychological and physical difficulties. Jennifer was the victim of torture, sexual assaults, physical abuse, neglect, and psychological abuse that occurred daily as a child and adolescent, with even more recent sexual assaults as an adult from the same perpetrator. As a result of this significant abuse, Jennifer has been diagnosed with multiple disabilities. Jennifer has been diagnosed with Multiple Personality Disorder (MPD, known in the DSM-5 as Dissociative Identity Disorder, however Jennifer prefers the term MPD). She has experienced this disability since she was a child and has been receiving treatment for her symptoms for over 25 years. She also has a spinal injury, bowel difficulties, and chronic pain due to the abuse. Jennifer requires a colostomy bag, often struggles with walking, experiences sleep disturbances, fatigue, and psychosomatic pains. She experiences a range of Post-Traumatic symptoms, low mood, significant anxiety, flashbacks, and suicidal ideation. As a result of her psychosocial disability, any increase in stress can often result in ongoing somatic pain, decrease in ability to think, function and engage in society. Jennifer reports having more than 2500 personalities. Jennifer has previously received treatment from her psychiatrists, and has undergone treatment utilising Eye Movement Desensitization and Reprocessing (EMDR). Although Jennifer appears to be highly capable, with having a higher education background, her ability to understand social norms, acceptable boundaries, good touch, norm relationships, social activities and navigate life areas is greatly diminished by her disability. Likewise, when Jennifer experiences a memory or remembers the abuse, she is often triggered, disassociates, causing an alter to become present in the window of consciousness. Frequently, these alters are young children, and on at least three occasions, these alters have had significant difficulty in communicating their needs, their emotions and have appeared to have had reduced capacity to communicate due to a fear response. During these times, Jennifer has required significant support and guidance to assist with emotional regulation, communicating her thoughts and being able to emotionally recover from her experience. Jennifer's abuse history is extensive and significantly traumatising. Given the requirements of a court case of this nature, such as to go over evidence, testify, possibly see the perpetrator and retell her story, it is likely Jennifer will experience significant psychological and emotional distress throughout the court proceedings. This is likely to reduce her ability and capacity to communicate her needs, desires and memories without significant support. Jennifer reported that she has experienced this difficulty prior, in her previous court cases. It is likely Jennifer will become triggered throughout the case, and a very young alter, with limited communication may appear. As such, based on the information provided by the above mentioned stakeholders, Jennifer's self-report, direct observation and clinical judgement, it is my opinion that to ensure Jennifer's well-being, ability to communicate her experiences and her ability to negotiate any legal requirements, she would benefit from a tutor for the court. Jennifer has previously received a tutor for court, and has reported she has found this significantly helpful to reduce the associated distress from being involved in a court case." (e) Current situation 1. Jennifer currently lives with her mother in assisted accommodation in Brisbane and remains in receipt of the disability pension. Jennifer is obviously an intelligent woman having obtained a Bachelor of Arts degree in December 1995, a Master of Social Science (Legal Studies and Criminal Justice) Degree in 2000 and a Doctor of Philosophy in 2007. 2. Ms Lindley stated the background to her engagement was that she had been requested by a DOCs case officer to assist Jennifer in the role of support person from early 2017 for the purposes of preparation and participation in the criminal trial. When she spoke to Jennifer, she had to determine which alter ego of the DID she was dealing with. She became familiar with the different personalities - ("alters") - after a while, and found it best to speak to Jennifer early in the morning, because later in the day "it was more likely one of the alters would dominate". 3. Ms Lindley stated that Jennifer can perform some basic meal organisation, shopping and cooking tasks and can attend appointments, but is unable to make decisions about these legal proceedings as she cannot relive the events of past abuse and did not want to have to swear a further affidavit or participate in the hearing. Jennifer was concerned that she could not cope with hearing the defendant's voice and would find that traumatic. The sexual abuse 1. The sexual abuse the subject of this claim occurred between 1974 and 1981 and falls under the categories of criminal conduct described in the Crimes Act 1900 (NSW) at that time. I have been asked to assess damages on the basis of five counts of indecent assault, six counts of buggery (as it was then termed), five counts of rape and nine counts of carnal knowledge of a female under the age of ten years. 2. The facts of the events that comprise each identified offence are set out in detail in the agreed statement of facts and to which effectively, admissions were made by the defendant in the criminal proceedings. Those facts, together with the descriptions of those events in Jennifer's eight statements to police that are exhibited to Ms Lindley's affidavit, form the factual matrix upon which I have assessed damages. I have considered all of that material, together with, and in light of, the expert reports of Dr Chow, Professor Kenny, Dr Blair-West and Ms Johnson as to the nature and extent of Jennifer's physical, psychiatric and psychological injuries and disabilities. 3. Jennifer was not required to give oral evidence. This approach was taken to minimise costs and importantly to avoid the need for unnecessary re-traumatising of Jennifer by requiring her to give evidence again of the abuses already comprehensively detailed in her statements. It is appropriate in the circumstances, for this Court to adopt a pragmatic approach, particularly given the facts are not disputed and the defendant has taken no steps to defend the claim. 4. I have read the Statement of Facts and the eight very detailed statements made by Jennifer to the police. Violence, terrible emotional manipulations, gratuitous cruelty and repeated instances of physical injury, pain and terror are described. Physical sequelae – in particular – bladder and bowel continence issues feature. 5. The following are some extracts from the Statement of Facts that illustrate the abuses. I have not included the description of every assault that is the subject of this judgment. The extracts provide, in summary form, the acts and circumstances that comprised some of these sexual assaults: (i) When 4 to 5 years old (a) Indecent Assault During an evening between 1 May 1974 and 12 January 1975 the Offender entered the bedroom of the Victim whilst she was in bed. The Offender removed the bedcovers and lifted up the night dress of the Victim. The Offender placed his finger on the Victim's vagina and attempted to digitally penetrate her. At this time, the Offender also tried to digitally penetrate the anus of the Victim. The Offender was unable to penetrate the vagina or anus of the Victim. The Offender pinched the Victim's vagina before leaving the bedroom. (b) Indecent Assault About a week after the assault in Count 2, the Victim was sitting on the sofa in the living room with her family. The Victim was playing with a hand puppet she owned named 'Sweep'. The Offender sat beside the Victim and began playing with 'Sweep' also. The Offender played "Peek-A-Boo" with the Victim by hiding 'Sweep' behind his back. The Offender was stroking the Victim's legs, slowly moving further towards her vaginal area the more they played. The Offender began playing with the Victim's vagina and anus below her underwear. At first the Offender was massaging and soft in his movements but he became more aggressive as he attempted to penetrate the Victim's vagina and anus. When pain would cause the Victim to wince in pain, the Offender used 'Sweep' to cover her face and muffle any sounds. The Offender deeply penetrated the Victim's anus, moving in and out of her, forcing his finger deeper on each occasion. The Offender alternated between his penetration of the Victim's anus, and prodding at her Victim's vaginal area. The Offender reluctantly stopped his assault upon the Victim after she complained to him that he was hurting 'Sweep'. (c) Carnal Knowledge of female under 10 Around or shortly before October 1974, the Victim was asleep in her bedroom when she awoke to see the Offender sitting on her bed with 'Sweep' in his hand. The Offender used 'Sweep' to remove the Victim's bed coverings, and proceeded to crawl up her legs to her pubic mound, applying pressure to the region. The Offender used 'Sweep' to pull apart the Victim's vaginal lips using a finger from his other hand to penetrate her vagina. As the Victim moaned in pain, the Offender moved 'Sweep' to cover her face and muffle her cries. The Offender positioned himself on top of the Victim, holding her down by his sheer weight advantage. The Offender proceeded to force his erect penis into her vagina, and drove his penis in and out of her body. The pain from this assault caused the Victim to lose consciousness. The Victim woke up and alone in her bedroom. The Victim suffered cramping, rawness and extreme sensitivity in her genitals. A short time later, the Victim went to the bathroom to urinate and felt burning sensations and stinging making her feel weak and sick. Blood stains marked the Victim's underwear. The Victim replaced her underwear and left the bathroom, but was stopped by the Offender and returned her to the bathroom. The Victim asked the Offender what the marks in her underwear were and what the pain she was feeling was from. The Offender knelt beside the Victim, removed her underwear and proceeded to rub and prod at her vagina. The Offender directed the Victim to sit on the toilet seat while he went to the sink, washed his hands with an unknown liquid, before returning to her. The Offender again rubbed and prodded at the Victim's vagina, causing stinging sensations. After a period of playing with the Victim's raw vaginal region, he stood up walked outside before returning a moment later. The Offender walked to where the Victim was sitting, placed a new pair of underwear around her ankles and slid them up her legs. The pain from the assault caused the Victim to lose consciousness after a period of dizziness. The following days, the Victim bled from her vagina and felt immense pain in the region. (ii) When 5 to 6 years old (d) "Buggery" (as then described by s.79 Crimes Act 1900) Between September and October of 1975, the Victim was at school when her teacher asked the class to draw a picture of either their mother or father. The teacher provided a variety of paints and coloured pencils. The Victim chose to draw a picture of her mother. At the completion of the school day, the teacher retained each of the pictures in order for them to dry. The Victim's mother attended the school to pick the Victim up and take her home. Later, while the Victim was speaking with her mother about the picture, the Offender overheard the conversation and said to the Victim "You didn't draw me, you don't love me anymore". The Offender smiled as he said this. The Victim's mother changed the subject at which time the Victim went away to play with her dolls. That evening while the Victim was in bed, the Offender entered her bedroom, removed her from the sheets and dragged her into the living room. The Offender began to berate the Victim for not drawing him earlier in school. The Victim was unable to find the words to say to the Offender and began to cry. The Offender placed the Victim onto the sofa so that her head was against the seating area and her rear exposed over the edge. The Offender struck the Victim's rear end a number of times causing her to cry and moan. The Offender said "Shut up, if I hear a peep out of you I will knock you into next week". The Offender then inserted his erect penis into the Victim's anus causing her tremendous pain. The Victim bit down on her lip to prevent herself making further noise and avoid a further beating from the Offender. The Offender thrusted his penis in and out of the Victim's anus while saying to her "I'll teach you to prefer her over me. You belong to me. You're mine, not hers. You are nothing to her. Only I care about you. If not for me, you'd still be in England. She doesn't want you". The Offender continued his thrusting motions and again spoke with the Victim saying "Yes. You are such a dirty girl. Only I want you. No one else wants you". Following this the Offender ejaculated into the Victim's anus. The Offender removed his penis and the Victim felt a liquid trickle from her anus which she believed was faeces due to the scent. The Offender again struck the Victim's rear end and said "oh you dirty girl, stop that". The Offender left the room and returned with toilet paper, shoving it between the Victim's legs and saying "go to the toilet you filthy thing". (iii) When 7 years old (e) Buggery - s. 79 Crimes Act 1900 In mid-1977 the Victim was home alone with the Offender. The Victim was in the living room reading a book when the Offender approached her and invited her to play a game with him. The Victim agreed and was escorted by the Offender to his and her mothers' bedroom. The Victim noticed a series of tools set out on the floor beside the edge of the bed. The crotchet hooks, knitting needles, wooden spoon and screw drivers were all laid out in size order. The Offender stood the Victim against the edge of the bed facing away from him towards the head of the bed. The Offender removed the Victim's glasses and proceeded to fondle her genitals as he pressed her hard against the bed. The Offender then removed the Victim's underwear and pushed her onto the top of the bed with her legs dangling over the edge. The Offender sat on the ground between the Victim's spread legs with his body disallowing her to close them shut. The Offender proceeded to fondle the Victim's anus, before inserting what is believed to be the smaller of the crotchet hooks inside her. The Offender inserted the hook over and over, building up pressure and pain within the Victim's insides. The Victim attempted to edge further up the bed but the Offender took hold of her hips and pulled her back towards him and returned her into position. The Offender twisted and jerked the crotchet hook, before replacing it with a larger crotchet hook and continuing the assault. The Offender continued progressing through the tools he had assembled in size order. The tools scraped, scratched and pulled at the Victim's sphincter and insides. The Offender moaned and exhaled as the Victim cried and pleaded for a reprieve. As he forced the tools inside her anus and around her insides, the Offender rubbed at the Victim's vagina. The Offender then removed the final tool from inside the Victim before; he rested on her with his exposed erect penis. The Offender forced his penis inside the Victim's anus. The Victim recalls the Offender's penis to be larger than the tools used on her but the insertion was smoother as it was lathered in pre-ejaculate but the pain was still immeasurable. The Offender thrust deeply into the Victim's anus with his penis, pulling back to almost the edge of the sphincter before pushing it back inside her repeatedly. The Victim clawed the bedding attempting to pull away from the Offender. The Offender continued this until he ejaculated inside the Victim. The Offender stood up, collected the tools he had used to abuse the Victim, before saying to her, "Oooh you loved that didn't you?" before leaving the room and telling her to clean up. (f) Indecent Assault - s. 76 Crimes Act 1900 On the night of the Victim's seventh birthday she was awoken by the Offender who said he had "a gift" for her as he walked her to the sofa in the living room. The Offender explained to the Victim that it "Was important to give birth on your birthday". The Victim was sat on the edge of the sofa as the Offender forced apart her legs. The Offender played with the Victim's genitals before penetrating her vagina with his fingers. The Offender prodded the Victim's vagina and bent his fingers' apparently widening the vaginal lips for the ensuing assault. After a period of fingering the Victim's vagina, the Offender removed his fingers and forced a "Kewpie Doll" inside her. The Victim recalls this doll to be about 5cm in length. The Offender buried the doll deep inside the Victim's vagina explaining to her, "You are going to have a baby. Push down and give birth", "Bear down" and "Try to push it out of you". The object caused immense pain to the Victim who tried desperately to expel it from her vagina by pressing down and releasing her insides. The Victim pleaded with the Offender to ease the pain she was feeling but he responded by saying, "It's alright. Daddy's here" and "It's painful to be beautiful". As the Victim bore down forcing the foreign toy from inside her, the Offender placed his fingers in her vagina and around the object pulling and rotating it simulating child birth. The Victim's forceful push caused her to urinate over the Offender hands. The Victim pushed and pressed down eventually expelling the doll from her vagina. Once the doll fell from her vagina, the Offender wished the Victim "Happy birthday". The exhausted Victim struggled to her feet and noticed the towels she was laying on covered in faeces and urine. The Victim dragged her exhausted self to bed, and cried into "Sweep". The Victim ached and her genitals were in agony. The Victim was too scared to feel around her genitals as she was concerned of what she may discover. This was a yearly ritual carried out by the Offender on the Victim's seventh, eighth, ninth, tenth and eleventh birthdays. This assault caused irregular bleeding and vaginal discharges that the Victim battled to conceal. It is unknown if the same "Kewpte doll" was utilised each year. (iv) When 10 years old (g) Rape - s. 63 Crimes Act 1900 On the night of the Victim's tenth birthday on 13 January 1980, the Offender subjected his daughter to the 'ritual' of child birth involving the 'Kewpie' doll which has been described earlier. On this particular occasion the Victim lost consciousness, regaining lucidity to find the Offender having penile/vaginal intercourse with her. The Offender's arms were positioned either side of the Victim's body as she was laying down facing up towards him. The Offender used his upper arm strength to propel his chest off the Victim as he thrust his penis into her vagina, over and over. The pain of the assault caused the Victim to once more lose consciousness. (v) When 11 years old (h) Indecent Assault On a Friday or Saturday night in early 1981, following the Victim's birthday, she was sitting at the dining room table speaking with her brother Geoffrey. At the time, the Victim's sister Frances was staying elsewhere. The Offender entered the dining room and briefly spoke with Geoffrey and the Victim before walking out into the rear yard. The Offender returned shortly afterwards and told Geoffrey and the Victim to go to bed. The Victim went and put her night dress on and said goodnight to both her mother and the Offender. The Victim went to her room and fell asleep. She later awoke to the Offender lying in her bed rubbing his finger across her lips. The Victim opened her eyes and the Offender said to her, "Oh you're awake," before grabbing her arm and getting her out of bed. The Offender walked with the Victim outside and into the garage. The Victim tried to resist and the Offender harshly told her to "Stop it". Once inside the garage, the Victim saw a bundle of wires on the bench top along with some towels. The Offender said, "I had a treat for you, but I don't know if you deserve it now." The Victim apologised and said she was sorry and the Offender replied, "No. You like our games. You enjoy them don't you?" The Victim was not sure how to answer but said "Some." The Offender grinned at her saying, "I've a game you will love". Following this, the Offender led the Victim deeper in the garage and told her to lie down, pushing her shoulders. The Victim sat hesitantly and the Offender removed her night dress. He pushed the Victim's chest so she laid back and squatted next to her, opening her legs. The Victim noticed a blue coloured box next to her with cords leading from it. Upon the box was a dial. The Offender moved the dial slightly then placed his hands in the Victim's genital area. As the Offender did this he said, "Silly me, isn't Daddy silly?" and got up and walked away, telling the Victim not to move. When he returned, the Offender returned with some cushions and told the Victim to "Lift her bottom up". When the Victim raised herself, the cushions were placed underneath her. The Offender again placed his hands on the Victim's genitals with one moving down to her anus. The Offender rubbed over the Victim's anus and said "Oh relax, this is going to be good" before pushing one of his fingers into her anus. Shortly afterward, the Offender began to penetrate the Victim's anus with a hard, warm rod-like object. The object inserted in the Victim's anus was far hotter than any object the Offender had used previously. The heat of the rod caused the Victim to grit her teeth and soon it became overwhelming as the Offender thrust the object within her anus. The Victim cried out, "Too hot Dad, too hot". The Offender said to her, "If it gets too hot. just turn the dial anti-clockwise" and placed her hand onto the blue box with the dial. The Offender continued to thrust the object and the pain became too much for the Victim, who reached out and turned the dial anticlockwise as far as it could go. The Victim immediately felt the pain and heat in her anus increase dramatically, realising the Offender had tricked her into turning the dial the wrong way. The Victim thrashed about on the floor desperately trying to get the rod out of her anus. Finally, the Victim was able to get her hands on the metal box and immediately turned the dial in the opposite direction, which brought some relief. The extreme pain the Victim was subjected to caused her to lose consciousness. Upon regathering her senses, the Victim was aware of an intense searing pain within her anus, leading her to believe that no other part of her existed. The Victim tried to sing a song in her head to take her mind off the pain, but was unsuccessful and she again lost consciousness. On regaining her consciousness on this occasion, the Victim was walking toward the toilet unaware of how she got dressed. As a result of this incident, the Victim felt pain within her anus for a number of weeks afterwards. The Victim also suffered from a painful discharge from her anus and ignored her body's signals to defecate as the pain was too much. Conclusion re: liability 1. I accept as true the accounts contained in the Statement of Facts for which damages are claimed. The defendant did not dispute these accounts or any parts of them in these proceedings. Judgment will be entered for the plaintiff. Assessment of damages 1. The heads of damage claimed are confined to general and aggravated damages. 2. I accept the submissions of counsel for the plaintiff that there should be a single award of general damages for all of the assaults. This approach is consistent with Varmedja v Varmedja [2008] NSWCA 177 at [154] (Varmedja) and the approach taken by McCallum J (as her Honour then was) in XY v Featherstone [2010] NSWSC 1368. 3. I accept that the physical assaults and injuries to Jennifer's anus and rectum caused her ongoing pain and serious distress associated with bowel and anal function, to the extent that by 2012 she felt that she had no alternative but to remove the items associated with so much trauma and distress. Given there is no evidence of a serious fall or pregnancy or childbirth, I have concluded based on Dr Chow's report that the dislocated coccyx and the anal injuries and rectocele were caused by the defendant's sexual assaults. Whilst the fitting of a permanent colostomy – made necessary by the removal of her anus and colon – provided some psychological relief, it is still a situation requiring daily management of stoma bags, infection risks and disposal of faecal matter. It restricts what Jennifer can wear and what she can physically do. 4. Jennifer's life has been destroyed by the defendant's abuses. The loss of enjoyment of life and psychological distress caused to her by his vile conduct is immense. His bullying and manipulation of his daughter, a child at his mercy, was very damaging. I assess general damages at $500,000. 5. A claim is made for aggravated damages. Aggravated damages are compensatory in nature and are awarded for injury to the plaintiff's feelings caused by insult, humiliation and the like: Lamb v Cotogno (1987) 164 CLR 1 at [8]. 6. It is important not to doubly compensate for "hurt feelings", particularly when general damages awarded must at least, to an extent cover such considerations: State of New South Wales v Riley (2003) 57 NSWLR 496 at [130] to [131] per Hodgson JA, Sheller JA agreeing at [9] and Nicholas J agreeing at [147]: "[130] If, in addition to ordinary compensatory damages for injury to feelings, aggravated damages are to be awarded, then plainly it is important to avoid double counting; and the question arises, what can the additional aggravated damages be compensation for when injury to feelings have already been included in ordinary compensatory damages? [131] In my opinion, the only principled explanation must be along the following lines. It is extremely difficult to quantify damages for hurt feelings. In cases of hurt feelings caused by ordinary wrong-doing, of a kind consistent with ordinary human fallibility, the court must assess damages for hurt damages neutrally, and aim towards the centre of the wide range of damages that might conceivably be justified. However, in cases of hurt to feelings caused by wrong-doing that goes beyond ordinary human fallibility, serious misconduct by the defendant has given rise to a situation where it is difficult to quantify appropriate damages and thus where the court should be astute to avoid the risk of under-compensating the plaintiff, so the court is justified in aiming towards the upper limit of the wide range of damages which might conceivably be justified." 1. The rapes and sexual assaults were extremely serious. They were repeated, demeaning, degrading and terrifying and caused significant physical and mental harm. 2. There was gratuitous cruelty associated with many of the incidents. The fact that the defendant used his position as Jennifer's father to coerce her and terrify and threaten her makes the conduct even more appalling and damaging to Jennifer's sense of self. 3. The defendant engaged in egregious manipulation of Jennifer, who was only four years old at the time the relevant assaults began, in an attempt to convince her that all the events were her fault and that she deserved these terrible abuses. She of course did not. She was an innocent child who fell victim to a depraved monster, her father, who unfortunately exploited this easy and regular access to her body, heart, mind and psyche to abuse her and humiliate her. His behaviour justifies an award of aggravated damages separate to compensatory damages. 4. Jennifer has been psychologically destroyed and has constructed an elaborate but disabling coping mechanism in the split of her "self" into multiple personalities and identities to carry the psychological load of the trauma the defendant inflicted upon her. She has been able to construct a life for herself, but it is a very damaged and limited one. She has been entirely unable to cope with the formation of a relationship with a partner, sexual activity being associated with the abuse by her father. She cannot engage in paid employment but to her credit, has used her notable intelligence to complete study to a high level, in her time, and on her terms. There is no suggestion that despite therapy and support, Jennifer will recover to any degree. 5. She has taken the drastic step of removal of her anus and colon so that she does not have to defecate through the passages the defendant invaded, tortured and injured. I assess aggravated damages at $100,000. 6. Consistent with the approach outlined by Tobias JA in Varmedja at [163] (with whom Hodgson JA and McColl JA agreed), I assess damages as a total of both these figures at $600,000. 7. I attribute $400,000 of this sum to the past, and in accordance with MBP (SA) Pty Limited v Gogic (1991) 171 CLR 57, I calculate interest on those past damages at 2% for 30 years = $240,000. I have chosen 30 years as a compromise position rather than calculating interest back to when the assaults began, 48 years ago. 8. The total assessed amount, including interest, is $840,000. Costs 1. Costs should follow the event: Uniform Civil Procedure Rules 2005 (NSW) r 42.1. The defendant is ordered to pay the plaintiff's costs. Orders 1. I make the following orders: 1. Judgment for the plaintiff in the sum of $840,000. 2. The defendant is to pay the plaintiff's costs. ********** Endnotes 1. Transcript dated 16 September 2021, p 18 at 24 2. Affidavit of Service dated 12 May 2019 3. Affidavit of Karen Lorraine Lindley sworn 9 September 2021 at [19] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 May 2022