JUDGE:	KAYE J
WHERE HELD:	Shepparton
DATE OF HEARING:	30 October 2007, 1 November 2007
DATE OF JUDGMENT:	7 November 2007
CASE MAY BE CITED AS:	AM v KB
MEDIUM NEUTRAL CITATION:	[2007] VSC 429

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TORT – Assault – Sexual abuse by defendant of plaintiff as a young child – Standard of proof – Whether evidence of contemporaneous complaint admissible – Limitation of Actions Act s 27E, 27I – Damages – Exemplary damages.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T S Monti and Mr A E Macnab	Messrs Nevin Lenne & Gross
For the Defendant	The defendant appeared in person

HIS HONOUR:

The plaintiff is a young woman of some 26 years. She was born and raised in a small country town in northern Victoria. The defendant and his wife were, from the early 1970s until approximately the mid 1990s, neighbours and friends of the parents of the plaintiff. In this proceeding the plaintiff seeks damages from the defendant, including exemplary damages, claiming that, between approximately 1984 and 1991, he sexually assaulted her on a number of occasions.

The proceedings

Before outlining the nature of the allegations made by the plaintiff, it is necessary to say something first about the proceedings. The action was commenced by writ on 17 July 2006. During the interlocutory stages the defendant was represented by a firm of solicitors, who filed a defence on his behalf. However, approximately two months before trial, the defendant’s solicitors sought and obtained the leave of the Master to cease to act for the defendant, on the basis that the defendant had not put them in funds to defend him at the trial. The case was set down for the Shepparton sittings of this Court commencing Monday 15 October 2007. At the callover which I conducted on that day the defendant appeared in person. He told me that he was unrepresented, that the Victoria Legal Aid Authority had rejected his application for legal assistance, and that he had unsuccessfully sought to access pro bono representation. I stood the matter down to come on later in the sittings, at the conclusion of some other trials.

Ultimately the trial of the action commenced at the Shepparton Court on Tuesday, 30 October. The defendant had been duly notified, and attended at Court that day. He again confirmed that he was unrepresented, that the Victoria Legal Aid Authority had rejected his application for assistance, and that his solicitor had not been successful in endeavouring to obtain pro bono representation on his behalf. Accordingly the proceedings commenced on that day. The plaintiff and her mother (to whom I shall refer as “SM”) gave evidence. Two medical reports were tendered, with the consent of the defendant. Before those reports were tendered I explained to the defendant why they were being tendered in evidence, and he consented to the reports being…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading A M v K B

Details

AGLC: A M v K B [2007] VSC 429
Case: [2007] VSC 429
Decision Date: 7 November 2007

CaseChat Overview and Summary

In the matter of A M v K B, the plaintiff brought an action against the defendant, seeking damages for sexual abuse that occurred when the plaintiff was a child. The case was heard in the Supreme Court of Victoria. The plaintiff alleged that the abuse took place over a number of years, beginning when the plaintiff was under the age of 16. The defendant denied the allegations and the case turned on the admissibility of the plaintiff's evidence and the applicable limitation period.

The primary legal issues before the court were whether the evidence of the plaintiff's contemporaneous complaint was admissible, and if so, whether the action was within the limitation period. The court was also required to consider the standard of proof and whether exemplary damages were appropriate in light of the defendant's conduct. The court found that the evidence of the plaintiff's contemporaneous complaint was admissible under the exceptions to the hearsay rule, and that the action was within the limitation period. The court found that the plaintiff had established the case on the balance of probabilities and awarded general and exemplary damages.

The court held that the evidence of the plaintiff's contemporaneous complaint was admissible under the hearsay exception for statements made for the purpose of obtaining medical treatment or assistance. The court found that the evidence was relevant and reliable, and that it was in the interests of justice to admit it. The court also found that the action was within the limitation period, as the plaintiff had exercised reasonable diligence in bringing the action and there were circumstances that justified the extension of time. The court held that the plaintiff had established the case on the balance of probabilities, and that the defendant's conduct warranted the award of exemplary damages. The court ordered the defendant to pay general and exemplary damages to the plaintiff.

Orders