10-14 May 2021; 15 June 2021 (written submissions); 9 July 2021 (written submissions); 20 August 2021 (oral submissions)
Date of orders:
15 September 2021
Decision date:
15 September 2021
Jurisdiction:
Civil
Before:
Dicker SC DCJ
Decision:
(1) Judgment for the defendant against the plaintiff.
(2) The plaintiff is to pay the defendant's costs of the proceedings as agreed or assessed.
(3) Liberty to the parties to seek a different costs order to that in (2) above within 14 days.
Catchwords:
TORTS – intentional torts – battery – personal injury – psychiatric injury – historic sexual assault alleged – damages sought for battery and psychiatric injury and consequential loss – whether the plaintiff consented to the activity in question – whether the account of the plaintiff should be accepted on the balance of probabilities
All information tending to reveal the identity of the plaintiff and the defendant in the proceedings is not to be published pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) on the basis that the public interest for the order significantly outweighs the public interest in open justice.
Judgment
In these proceedings, the plaintiff, Mrs A, sues the defendant, Mr B, in the tort of battery relating to a battery through an alleged rape committed by the defendant on the plaintiff in 1972. At that time, the plaintiff was 16 years of age and the defendant was 19 years of age. The defendant denies that there was any battery and asserts that any conduct of a sexual…
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.
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Details
AGLC
A v B [2021] NSWDC 491
Case
[2021] NSWDC 491
Decision Date
CaseChat Overview and Summary
In the matter of A v B, the plaintiff brought an action against the defendant for damages arising from an incident of alleged historic sexual assault. The plaintiff sought compensation for battery, psychiatric injury, and consequential loss. The case was heard in the Federal Circuit and Family Court of Australia. The plaintiff alleged that the defendant had committed a battery and caused her psychiatric injury and consequential loss due to the alleged assault.
The central legal issues for the court to decide were whether the plaintiff had consented to the activity in question and whether the plaintiff's account of events should be accepted on the balance of probabilities. The court had to assess the credibility of the plaintiff's evidence and determine whether the defendant's actions constituted a battery.
The court examined the evidence presented and found that the plaintiff's account of the events was not credible on the balance of probabilities. The court concluded that the plaintiff had not provided sufficient evidence to support her claims of battery and psychiatric injury. The court also found that the plaintiff had consented to the activity in question. As a result, the court dismissed the plaintiff's claims and entered judgment in favour of the defendant. The plaintiff was ordered to pay the defendant's costs of the proceedings as agreed or assessed. The parties were given liberty to seek a different costs order within 14 days.
Orders
Orders of the court
(1) Judgment for the defendant against the plaintiff.
(2) The plaintiff is to pay the defendant's costs of the proceedings as agreed or assessed.
(3) Liberty to the parties to seek a different costs order to that in (2) above within 14 days.