District Court New South Wales Medium Neutral Citation: Murdock v Betham [2018] NSWDC 192 Hearing dates: 13 June 2018 Date of orders: 20 June 2018 Decision date: 20 June 2018 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: (1) Judgment for the plaintiff in the sum of $243,254. (2) Defendant to pay the plaintiff's costs. Catchwords: ASSESSMENT – assault – false imprisonment – domestic violence - wife confined by husband – cuts to breasts and wrists – fear of death – cold and naked – scars – post-traumatic stress disorder - damages Legislation Cited: Civil Liability Act 2002 Family Law Act 1975 (Cth) Uniform Civil Procedure Rules 2005 Cases Cited: Elliott v Kotsopoulos [2009] NSWDC 164 Lamb v Cotogno (1987) 164 CLR 1; [1987] HCA 47 M v Nesbitt [2012] NSWDC 152 New South Wales v Radford (2010) 79 NSWLR 327; [2010] NSWCA 276 Shalhoub v State of New South Wales [2017] NSWDC 363 State of NSW v Abed [2014] NSWCA 419 Uren v John Fairfax (1966) 117 CLR 118; [1966] HCA 40 Yen v Yen [2010] FamCA 1 Category: Principal judgment Parties: Melinda Suan Tinn Murdock (plaintiff) William Fagege Betham (defendant) Representation: Counsel: Mr M Weightman (plaintiff) Solicitors: Carroll & O'Dea (plaintiff) File Number(s): 2018/14708 Publication restriction: None Judgment Introduction 1. Melinda Murdock was assaulted and held captive for several hours by her husband, William Betham, in a violent attack that ended their relationship and left her with scars and disabilities. She sues for personal injury damages. The proceedings 1. Mr Betham is currently in custody serving a lengthy prison term for his conduct that is the subject of these proceedings. He is not represented in these proceedings, and there was no appearance when he was called outside the court. However, in a recent letter to the registrar of the Court on the court file, Mr Betham indicated that he is aware of the proceedings. 2. Mr Betham has filed no appearance or defence and as a consequence, the registrar has previously granted default judgment and made orders for the assessment of damages. Mr Betham was given notice by the Court that the assessment of damages was proceeding in these sittings, although the Uniform Civil Procedure Rules 2005 impose no requirement that a defendant the subject of a default judgment be so notified. [1] The matter was before me for the assessment of damages. 3. Ms Murdock and Mr Betham are currently engaged in a property dispute in the Family Court. Those proceedings are awaiting the result of this matter and I was informed that Mr Betham had representation in those proceedings. 4. A question arose as to whether these proceedings would more properly be part of the matter presently in the Family Court. I was referred to two decisions. Yen v Yen [2] concerned an application by the husband to injunct the wife from continuing a claim for damages for assault in the Victorian Magistrates Court on the basis that the proceedings fell within the accrued jurisdiction of the Family Court. [3] Cronin J stated: "[52] One way of looking at this issue is whether the common facts or substratum of facts give rise to the issues in dispute. It is stretching the language to say that an assault in a marriage that may or may not give rise to damages is a significant factor in a property case where there is no claim that contribution has been made more difficult because of conduct or because the conduct adversely affects future health or earning capacity. [53] In my view, the nature and basis of the claims in the two proceedings are quite different having arisen from completely different sets of facts." [4] 1. The proceedings in this Court may be different from those in Yen, not because the assault rendered "contribution" during the relationship by Ms Murdock more difficult (it did not since the relationship ended with Mr Betham's conduct) [5] or because the conduct affected her earning capacity (such claim, although made, was abandoned in these proceedings) but perhaps because the conduct of Mr Betham adversely affected the future health of Ms Murdock, as will appear in these reasons. However, while the subject matter of these proceedings between Mr Betham and Ms Murdock is within the Family Court's pendent or accrued jurisdiction, being part of the overall matter of adjusting the property interests between them under the Family Law Act 1975 (Cth), nevertheless, this is not sufficient to persuade me that these proceedings should be interrupted. As the Full Court of the Family Court of Australia said in Kennon & Kennon, [6] claims for damages for assault "are not part of the ordinary jurisdiction of the Family Court" [7] and that: "There is not, we think, any legitimate basis for concluding that the Family Court is uniquely suited to the adjudication of domestic violence damages claims. Its daily work brings it into contact in a variety of ways with domestic violence but the same may be said of the Magistrates' Courts and District Courts of the states which have the additional advantage of being more familiar with claims for damages. It is obviously inappropriate to attempt to compare the suitability of different courts to deal with domestic violence claims but we think it is legitimate to make the point that the Family Court cannot be said to be so uniquely attuned to the adjudication of these cases that that is a basis for preferring this court and for offsetting the circumstance that the state courts are the 'natural' tribunals for the adjudication of common law claims." [8] 1. It may be that the impact of this judgment on the rights and liabilities of the parties may be affected by the discretionary division of property made subsequently by the Family Court, but that is not a reason not to proceed. It may even be a reason for this Court to finalise the proceedings for the assault in advance of the Family Court finally resolving all property matters between the parties so that the Family Court has certainty in the asset positions of the husband and the wife. In any event, I propose to continue with the assessment. The factual circumstances of the claim 1. Ms Murdock's evidence was contained in an affidavit. Her police statement was an annexure. No oral evidence was given. As this is an ex parte application, and because the various forms of evidence were consistent, I accepted the account of Ms Murdock. 2. Ms Murdock was 40 years old at the time of the assault on Saturday, 4 July 2015, having commenced a relationship with Mr Betham about 20 years earlier and having been married for most of that time. 3. Mr Betham and Ms Murdock have a son, 15 years old at the time of the assault, who lived with them. Ms Murdock also has a daughter from a previous relationship. Ms Murdock saw Mr Betham as a "protector", a "family‑oriented person" who instilled in her children "great values and signs of respect". Apart from an incident early in the relationship in about 2001, and a consequent separation, Ms Murdock recounted that Mr Betham had never previously physically hurt her. But in 2015, Mr Betham became controlling of Ms Murdock and Ms Murdock was "feeling suffocated" by Mr Betham needing to know where she was at all times. Ms Murdock had raised this with Mr Betham but it remained unresolved. 4. On Friday, 3 July 2015 Ms Murdock spent the evening with a friend, Rachel, and returned home after breakfast. Mr Betham and Ms Murdock then dropped their son at work, did some shopping, returned home and Ms Murdock began preparing dinner. Mr Betham came up behind her, grabbed her throat, ignored her protest, turned her around and pushed her by the throat to another room. As she resisted, Mr Betham squeezed tighter around her neck, making it difficult for her to breathe. 5. Mr Betham was carrying a large knife. Ms Murdock protested. Mr Betham questioned her about the previous night, then grabbed some electrical tape and placed it on her mouth, although she was still able to mumble her words. Mr Betham commanded her to take her clothes off and when she was unable quickly to remove her shirt, Mr Betham "cut it off" her. Ms Murdock was then completely naked. Mr Betham then taped her hands together behind her back and in the process lashed out at her hand and cut her wrist. 6. Ms Murdock's attempts to have Mr Betham put the knife down and talk were unsuccessful. Twelve months previously she had had breast enlargement surgery and Mr Betham began "tapping her breast" and said, "See those things, I will cut them out." He "slashed out" at her with the knife and cut her right breast. Blood came from a deep wound. When Ms Murdock protested, Mr Betham slashed her left breast twice, once just above the nipple area and another slightly higher across her chest. Mr Betham said, "There is no going back from this." He was rambling and crying. He swung the knife at Ms Murdock's face but missed, just grazing her chin. Ms Murdock said, "You promised you would never hurt me and look at me, look [at] my chest, look at what you have done." Mr Betham said, "I am sorry I went back on my word." 7. The phone rang. Mr Betham did not answer it. He took the knife and struck Ms Murdock on the head with the butt of the knife. She was dazed and found herself sitting on the floor resting against the bed. Mr Betham then picked her up and she sat on the side of the bed. Mr Betham was talking and crying, saying, "I will not be walking out of this room. I am not sure if I am going to take you with me or not" and, "We don't have much time left." 8. Ms Murdock thought Mr Betham was planning to take his own life and perhaps hers. She was cold, naked, wounded with blood dripping on her body and down her legs. She was refused permission to have a drink or go to the toilet. She was commanded to lie on the bed. Mr Betham sat on top of her. He still had the knife. Ms Murdock was upset and crying. She spoke of not wanting to die painfully and not having said goodbye to her son or mother. Mr Betham said, "We both got the same goodbye as we dropped [our son] off at work." Ms Murdock said, "I want you to know that I do not want to die now I am not ready to die, please sit me up." Eventually, Mr Betham got up and they sat on the bed. Mr Betham said, "Look what I've done to you Mel." Ms Murdock said, "My arm is really sore and I don't know what is wrong with it." Mr Betham cut off the tape. Mr Betham wrapped her wrist with a bandage. Ms Murdock was given a singlet which she put on her chest to cover the wounds. 9. Ms Murdock called her friend, Rachel, as Mr Betham was kneeling on the floor crying. It was more than four and a half hours since the assault began. Mr Betham then helped Ms Murdock put on some clothes. They then jumped in the car to pick up their son from work. Mr Betham explained that they needed to go to the hospital as, "I hurt your mum tonight". Ms Murdock was then treated at the hospital and remained overnight, and gave a police interview. Sequelae 1. Ms Murdock was left with a deep gash to her wrist, one significant cut to her right breast, two to her left breast and a less significant cut to the right side of her neck. All the wounds have resulted in significant scarring. 2. Ms Murdock reported to her medico‑legal expert psychiatrist, Dr Christopher Bench, that she was no longer the same person, had become isolated and withdrawn, hardly socialised, cannot work around a lot of people and had to change her employment. She had nightmares, would awake screaming, sweating and hyper‑alert, and unable to return to sleep. She would have episodes of tearfulness, panic attacks and insomnia. She wears sunglasses everywhere in order to hide her identity. She avoided living by herself, returning to the matrimonial home, using knives and dating. She has had no intimate relationships and has no libido. She is very security conscious and avoids all contact with friends or family of Mr Betham. She has changed the way she dresses to cover her scars. According to Dr Bench, she sees the scars as a blight on her body. 3. Ms Murdock was unable to work for a time after the assault, but now works 25 to 30 hours per week. She has had many hours of counselling. 4. Dr Bench reported that Ms Murdock has persistent signs of post‑traumatic stress disorder ("PTSD") resulting from the assault and finds daily reminders of the trauma. He thought she was resilient, and had attempted to overcome her difficulties and mitigate her losses and has "achieved some significant improvement" without psychiatric medication and only a moderate level of psychotherapy. But she remains with chronic symptoms of PTSD despite the counselling. He thought she would "likely be vulnerable to have exacerbation of her illness at times of increased stress and anniversary reaction". 5. Dr Roland Hicks, orthopaedic surgeon, reported that Ms Murdock reported a numbing feeling around her left wrist, and had an "unpleasantly different sensation when exposed to cold, for example in cold water". She gets sharp pain if the wrist is grabbed and avoids letting hot water run on her left arm. She "cannot lift a laden wok without pain". This altered and diminished function in her left wrist and hand will continue indefinitely, but is not anticipated to deteriorate and surgery is unlikely to be helpful. The left wrist symptoms do not wake her and are untroubled by clothing. She has lost no range of movement and her wrist injury does not impair her driving. 6. Associate Professor Peter Haertsch, plastic surgeon, reported that Ms Murdock's wounds had healed satisfactorily, that her scars were generally "soft, flat, non‑tender and non‑adherent to the underlying structures", but that the scars on her breasts and chest are "slightly indurated". 7. Professor Haertsch noted that Ms Murdock was self‑conscious of the "scarring over both breasts", but not so with the scars on her wrist and the scar on her neck is hidden by her hair. He did not think the scars would deteriorate, but nor would surgical revision improve them, although he recommended a further consultation with a doctor at a hospital burns unit about laser intervention. Quantum 1. Ms Murdock did not maintain any claim for past or future economic loss apart from medical expenses, nor was any claim for exemplary damages maintained, no doubt in view of the penalty of imprisonment imposed upon Mr Betham. Ms Murdock confined her claim to non‑economic loss, including aggravated damages and interest, and future out‑of‑pocket expenses. (a) General damages 1. The damages in this case are unaffected by the limiting provisions of the Civil Liability Act 2002 [9] and common law principles apply. 2. I have been provided with the decisions of Elliott v Kotsopoulos [10] and M v Nesbitt. [11] Both decisions were given ex parte and neither have the imprimatur of being a Court of Appeal decision. 3. The latter decision involved sexual assault upon a schoolboy, where an amount of $250,000 for non‑economic loss, including aggravated damages was awarded. The facts and consequences are evidently quite different from the present. 4. Elliott was a decision in 2009 about events in about 2006. Ms Elliott was assaulted by her former partner. The judgment describes how she hid from her former partner for about two hours, but found he was still waiting for her, that he "grabbed her by the hair, and dragged her around the room" [12] and that he "chased her around the apartment", [13] "punched her hard in the face" resulting in "the walls, ceiling and mirrors being covered with her blood". She screamed, "her face feeling as if it had exploded", one of her teeth was "hanging out of her mouth by a thread of tissue" and another tooth had become dislodged. Her "lower lip had been penetrated by her upper teeth", her face was "bleeding, swollen and she felt horrible". 5. The judgment records, "There were multiple full thickness facial mouth and lip lacerations…bruising and abrasions to the skull, and her right knee was lacerated." [14] She had remedial dental surgery, bone and skin grafts, and developed severe infections. [15] She could not eat solid food for a year [16] and suffered "significant residual disfiguring scarring to her face and lower lip". [17] Levy SC DCJ awarded $120,000 general damages plus $25,000 aggravated damages. 6. General damages for Ms Murdock must include damages for both the unlawful captivity or imprisonment of Ms Murdock, about four and a half hours, naked and cold, in addition to the damages for the lengthy period of assaults comprising the compulsion that she strip, the electrical taping of her mouth and hands behind her back, the wounding of Ms Murdock by the slashing of her left and right breast, chest and neck, a slash at her face which grazed her chin, and a strike to her head by the butt of the knife, which seems to have caused some loss of consciousness for a period. All this occurred in a context of words from Mr Betham causing Ms Murdock to reasonably fear for her life. 7. I must also take into account that Ms Murdock has remained scarred for life, if not on the face, then on her breasts, another especially sensitive area for her. I must also take into account Ms Murdock's continued disabilities in her left wrist, and her ongoing PTSD, both of which, whilst stabilised, are, like her scars, going to persist to some extent for life. 8. Injury to Ms Murdock's feelings caused by insult, humiliation and the like are a component of aggravated damages reflecting a circumstance where the manner of the wrongful act aggravated the harm done. [18] Aggravated damages are compensatory. 9. Damages for false imprisonment are to reflect the "disgrace and humiliation" of an arrest. But this is also a factor of aggravation. Care must be taken not to double count an item where the various categories of damages are not self‑contained. [19] 10. I propose to award Ms Murdock $25,000 for the unlawful imprisonment and a further $25,000 for the aggravation of being held naked, cold and exposed, with tape over her mouth and around her hands, by her own husband, whom she evidently trusted and relied upon. 11. I would also award $150,000 for the assaults on Ms Murdock with the knife and with words indicating the possibility of death, leaving her scarred for life, requiring her to dress differently, to cover the upper part of her breasts and chest, an area which she had not long before sought to enhance, leaving her permanently scarred and sensitive, and leaving her life changed, feeling withdrawn, isolated, insecure and anxious. The circumstance of aggravation that the assault was by her husband, her trusted protector, justifies awarding an additional $25,000 aggravated damages. 12. Accordingly, I would award $225,000 for non‑economic loss. In my view, this is the appropriate non‑economic compensatory damages for the whole of the incident and its after‑effects, including both the assault and the unlawful imprisonment. Of this amount, the false imprisonment and the greater part of the damages for assault, say $180,000, should carry interest from the time of the assault at a rate of 1% for about three years for the reasons I gave in Shalhoub v State of New South Wales. [20] This is an amount of $5,400. (b) Future out-of-pocket expenses 1. The psychiatrist, Dr Dent, has recommended 1 or 2 courses of 12 to 16 sessions of psychiatric treatment. The likelihood of Ms Murdock engaging in that treatment is indicated by her willingness to engage with a counsellor for about three years on a monthly basis, and her willingness to try psychiatric medication. 2. While Dr Dent hypothesised that this treatment, psychiatric counselling and medication, would be necessary if a continuation of her present counselling regime proved ineffective, the evidence indicates that Ms Murdock's mental health remains impaired by PTSD despite long‑term counselling. I am therefore satisfied that there will be a need for the greater psychiatric intervention recommended. I will award the amount claimed of $9,240, less vicissitudes of 15%, which equates to $7,854. 3. Ms Murdock also claimed general practitioner visits monthly for life and antidepressant medication. Although the antidepressant medication and general practitioner visits have been undertaken in the past, neither has continued. The evidence indicates that it is unlikely that medication will be taken for life. Dr Bench reports that: "If she was to respond to psychiatric medication, she would need the medication for a minimum of two years, but potentially on a lifelong basis given the chronicity and severity of her symptoms." 1. I would award a buffer of $3,000 for the cost of psychiatric medication. Similarly, I would award a further buffer of $2,000 for general practitioner visits, a total of $5,000. Summary 1. Accordingly, damages are as follows: Non-economic loss Unlawful imprisonment $25,000 $25,000 (aggravated damages) Assaults $150,000 $25,000 (aggravated damages) Interest $5,400 Future out-of- pocket expenses Psychiatric counselling $7,854 Buffer for psychiatric medication $3,000 Buffer for General Practitioner visits $2,000 Total $243,254 1. The orders of the Court shall be, therefore: 1. Judgment for the plaintiff in the sum of $243,254. 2. Defendant to pay the plaintiff's costs. ********** Endnotes 1. M v Nesbitt [2012] NSWDC 152 at [4] per Murrell SC DCJ (as Murrell CJ then was). 2. [2010] FamCA 1. 3. Yen at [22]. 4. Yen at [52]-[53]. 5. See Kennon v Kennon [1997] FamCA 27; (1997) 22 Fam LR 1 at 24. 6. [1997] FamCA 27; (1997) 22 Fam LR 1. 7. (1997) 22 Fam LR 1 at 8. 8. (1997) 22 Fam LR 1 at 11-12. 9. S 3B(1)(a). 10. [2009] NSWDC 164. 11. [2012] NSWDC 152. 12. At [18]. 13. At [19]. 14. At [19]. 15. At [22]. 16. At [22]. 17. At [27]. 18. See Lamb v Cotogno (1987) 164 CLR 1 at 8; [1987] HCA 47, Uren v John Fairfax (1966) 117 CLR 118; [1966] HCA 40, State of NSW v Abed [2014] NSWCA 419 at [213]. 19. See New South Wales v Radford (2010) 79 NSWLR 327 at [97]; [2010] NSWCA 276, Abed at [234]. 20. [2017] NSWDC 363 at [184]. 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: 16 July 2018