Abuse Law – Case Law Update – Tort & Battery, and Exemplary Damages – ZYX v Cable (No 5) [2023] WADC 61

In the matter of ZYX v Cable (No 5) [2023] WADC 61, the plaintiff, ZYX (pseudonym initials), sought damages from the defendant, Mr Barry Thomas Cable, as a result of psychological injuries sustained as a result of tort and battery. The plaintiff alleges that from mid-1968 to early 1973 when she was aged approximately 12 to 17 years old, the plaintiff was repeatedly sexually abused and assaulted by the defendant, who was her adult neighbour. The plaintiff also alleges that from 1974 until 1991, the defendant had ongoing contact and engaged in sexual activity with the plaintiff which constitutes a severe breach of trust, was predatory, and in contumelious disregard of the plaintiff’s welfare.  

The defendant denied engaging in any sexual conduct with the plaintiff when she was a child and denied that he sexually abused or assaulted the plaintiff. The defendant submitted that he and the plaintiff had a consensual sexual relationship in or around 1983, when the plaintiff was an adult, for a period of approximately three years.  

On 16 June 2023, the Court found at [4] as follows: 

(I) From approximately late 1968 or early 1969, shortly after the defendant first met the plaintiff when she was a school girl, he engaged in a course of grooming behaviour, speaking to the plaintiff in sexualised language and exposing his penis and genital area to her, mainly in and around his house in Gooseberry Hill. The defendant’s sexualised behaviour towards the plaintiff escalated in 1969 to showing his erect penis to the plaintiff and demonstrating to her how to masturbate his penis. 

(II) On two occasions, in approximately late 1969 at the Thornlie swimming pool and on 2 August 1971 at the Perth Football Club, the defendant attempted to sexually penetrate the plaintiff when she was a child by attempting to penetrate her vagina with his penis before forcing the plaintiff to masturbate him. In late 1969 the plaintiff was aged 14 and on 2 August 1971 she was aged 15, nearly 16. 

(III) From about March/April to August/September 1969 during the Western Australian Football League (WAFL) football season, when the plaintiff was aged 13, a pattern of regular sexual contact with the plaintiff occurred in which the defendant, on an almost weekly basis, drove the plaintiff in his car during which he forced her to masturbate him, often to ejaculation, while he also sexually touched and fondled the plaintiff’s breasts and vaginal area, and on occasions forced her to perform oral sex on him by pushing her into his groin. The defendant also often tongue kissed the plaintiff. 

(IV) On two occasions in 1969 while he was living in Gooseberry Hill the defendant drove the plaintiff to a bush track called the ‘Zig Zag’, exposed his penis and forced the plaintiff to masturbate him. On the first occasion he also touched the plaintiff’s breasts above her clothing. 

(V) On one or two occasions outside the football season, between approximately October 1969 and January 1970, the defendant engaged in similar conduct with the plaintiff while driving her in his car as he did during the football season when the pattern of regular sexual contact with the plaintiff was established. 

(VI) Throughout 1969 and into January 1970, the defendant regularly indecently dealt with the plaintiff by rubbing his erect penis against her through his clothing and forcing her to touch his penis through his clothing. He also touched and fondled the plaintiff’s breasts and vagina above and beneath her clothing. This type of conduct occurred less frequently after the defendant moved to a house in Thornlie in October 1969 because of the reduced contact with the plaintiff. It happened on a few occasions at the Thornlie house. 

(VII) On one occasion, probably during the school Christmas holidays in 1969/1970 when the plaintiff stayed overnight at the defendant’s house, and while they were watching TV together, the defendant rubbed her genital area and touched her breasts beneath her clothing while her younger sister was asleep nearby. 

(VIII) On 1 January 1971 in the backyard of his home, the defendant put his arm around the plaintiff and fondled her breasts above her clothing while blowing into her neck and calling her ‘his big girl’. 

(IX) From October 1969, probably when the defendant was living in Thornlie, to January 1970 before he moved to Victoria, on approximately three or four occasions the defendant, while playing in the Thornlie swimming pool with the plaintiff, touched her on her groin area with his feet and touched her breasts with his hands. He also took off his bathers while encouraging the plaintiff to take off her bathers. The plaintiff was aged 14.  

(X) On two occasions in 1972, 29 April 1972 and 20 June 1972, while driving the plaintiff, when she was aged 16, the defendant sexually touched the plaintiff, exposed his erect penis to her and forced her to masturbate him.