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A Gold Coast man acquitted of having broken into the home of his estranged wife and violently assaulting her has been ordered to pay her close to one million dollars, including aggravated damages, for the December 2013 ordeal and resulting trauma.
Caitlin Gardiner – a 42-year-old insurance consultant – continued to reside in the family home at Royal Pines at Ashmore following her recent separation from her husband of 15 years, James Doerr.
Having fallen asleep on the couch in the lounge room, she woke to the sound of louvres being removed from a kitchen window.She screamed as she saw a man in a black balaclava wearing latex gloves standing at the sink in the dimly lit kitchen.
The assailant ran towards her and forced her back onto the couch by sitting on her chest. In a struggle, he forced her to lie on her back on the tiled floor and stuffed her mouth with a cloth before taping it closed.
He also placed cloth and tape over her eyes and tied her hands together with white garbage bags before asking if she preferred to be raped from the front or behind.
She eventually recognised from his mannerisms that the assailant was, in fact, her husband and called him out.
From that moment, he removed the balaclava and began talking to her as if the brutal assault had not occurred.
They sat down together at the dining room table, where he demanded that she sack her lawyer before he eventually left the residence at 6:00 am.
After the attack, Ms Gardiner unsuccessfully attempted to resume her work on four occasions. She received benefits under her income protection insurance policy for around 18 months.
Her resulting anxiety made it impossible to maintain the concentration and diligence required of her role, especially in relation to meetings with prospective clients.
However, by 2016 she was able to return to work in a reduced capacity to look after the insurance affairs of that half of her client list – 350 clients – who had remained on board and who had, in the meantime, been serviced by a colleague.
Doerr denied the incident had occurred at all and that if it had, he had not been the assailant.
He was charged by Burleigh Heads police for the break and enter and the assault but acquitted.
Justice Sean Cooper in the Supreme Court in Brisbane accepted Gardner’s evidence that the home invasion and assault had occurred, primarily by reason of the physical injuries that had been recorded by investigating police officers and medical personnel.
He also found Doerr to be the assailant, given the presence of his DNA on a remnant of one of the latex gloves found at the scene.
His contention was that Ms Gardiner’s psychological condition was a pre-existing longstanding condition, was rejected.
Gardiner was assessed in 2015 by psychiatrist Peter Mulholland with a PIRS rating of 17%, but his colleague Gary Larder attributed her to just 5% prior to the trial.
General damages at just $8,400 were allowed.
Forensic accountant Michael Lee tabulated her past loss of income up to October 2021 at between $250k and $418k. Given the upper range, the assessment was premised upon an unrealistic picture of pre-incident annual average income; the lower figure was accepted.
Justice Cooper concluded loss of income from November 2021 and for the future should be assessed on a figure for a gross reduction in the income of the business less than that adopted by the expert accountant. $404k was allowed.
The cost of Ms Gardiner’ regular psychological support from Katrina Fritzon and further fortnightly sessions over the next two years was also allowed in the award.
Aggravated damages were awarded having regard to the events of 2013 and the manner in which Doerr instructed that the trial be conducted – alleging that the assault had been fabricated, subjecting his victim to an overly long repetitious cross-examination over more than two days; and including unfounded suggestions of dishonesty concerning her professional qualifications.
“In all of the circumstances, I consider this to be an appropriate case to make an award of aggravated damages as additional compensation where Ms Gardiner’s sense of injury from the assault is justifiably heightened by the manner in which Mr Doerr committed that assault and the manner in which he has defended this claim”.
But the judge was not satisfied that the circumstances warranted the same award of $100k for aggravated damages that was granted to David Bulsey, who was illegally dragged from his bed in handcuffs by heavily armed, helmeted and masked police officers on Palm Island in 2004.
Rather, the figure was set at $50k, the same amount that was awarded by the court in a 2010 sexual abuse verdict relating to an eight-yr-old child.
A further $50k was awarded for exemplary damages – to mark the court’s disapproval of the outrage that had been committed – especially having regard to the fact that Doerr had escaped punishment in the criminal proceedings.
Total damages were awarded in the sum of $967,000.
Gardiner v Doerr [2022] QSC 188 Cooper J, 11 November 2022
Categories: sexual abuse