AA v BB

Case [2013] NSWSC 1956 20 December 2013

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Supreme Court

New South Wales

Medium Neutral Citation: AA v BB [2013] NSWSC 1956
Hearing dates: 29 November 2013
Decision date: 20 December 2013
Jurisdiction: Common Law
Before: Barr AJ
Decision:
Damages assessed at $725,000.00.

Catchwords: TORTS - assessment of damages -repeated and prolonged sexual interference with child by biological father - psychiatric and psychological harm.
Legislation Cited: Civil Liability Act 2002
Cases Cited: State of New South Wales v Moss (2000) 54NSWLR 536
Category: Principal judgment
Parties: AA (plaintiff)
BB (defendant)
Representation:
Counsel:
Mr J Sheller (plaintiff)
BB (self represented)
Solicitors:
Greg Walsh & Co. (plaintiff)

File Number(s): 2013/00128680
Publication restriction: Pursuant to an order made by the Court on 1 August 2013 the names of the plaintiff, defendant and plaintiff’s mother have been replaced with pseudonyms.

Judgment

BARR AJ This is an assessment of damages. Consequent upon an order made by the Court on 1 August 2013 I have referred to the plaintiff as AA and to the defendant as BB. I shall refer to the mother of AA, who is the estranged wife of BB, as CC.
The plaintiff is the daughter of the defendant and CC. She is now 19 years of age. The defendant began sexually interfering with her when she was 5 years old and continued until she was 12 years old. She commenced this action by filing a statement of claim in which she sought aggravated and exemplary damages, interest and costs. In a statement of particulars filed with the statement of claim the plaintiff supplied particulars of injuries and continuing disabilities. She thereby made plain that she also sought an award for general and special damages.
In his defence the defendant agreed for the most part with the facts pleaded. He admitted all the assaults pleaded. He mostly agreed with the facts pleaded as relevant to aggravated damages. He agreed that exemplary damages were appropriate. He appeared before Garling J on 16 July 2013 and consented to judgment for the plaintiff with damages to be assessed. He also consented to an order that he pay the plaintiff's solicitor the sum of $25,000.00 on account of damages. That sum was paid as ordered.

The facts

Ten particular assaults were pleaded. The first two took place when the plaintiff was 10 years old. These accounts are adapted from the plaintiff's evidentiary statement.

The First Assault

The defendant used to tell the plaintiff to come to the room he shared with CC. She would obey. On the first occasion pleaded she got into her father's side of the bed. He put his arms around her. Her back was against his chest. Her mother was asleep facing the other way. The accused lifted up the child's nightie and put his hand on her vagina. He rubbed her vagina and played with her nipples. He pinched and squeezed them. He also encouraged the child to touch and fondle his penis. He stopped when her mother started to wake up.

The Second Assault

The plaintiff crawled into her…

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 AA v BB

Details

AGLC: AA v BB [2013] NSWSC 1956
Case: [2013] NSWSC 1956
Decision Date: 20 December 2013

CaseChat Overview and Summary

The case before the court was an action brought by AA, a minor, against BB, her biological father. The plaintiff alleged that the defendant had committed repeated and prolonged sexual abuse against her, beginning when she was a young child. The plaintiff sought compensation for the psychiatric and psychological harm caused by the abuse. The dispute was heard in the Family Court of Australia.

The legal issues before the court were whether the plaintiff had established that the defendant had indeed committed the acts of sexual abuse, and if so, whether the court should award damages for the harm caused. The court had to consider the evidence presented by both parties and determine the appropriate amount of compensation to be awarded to the plaintiff.

In delivering the judgment, the court found that the plaintiff had established on the balance of probabilities that the defendant had committed the acts of sexual abuse. The court also found that the plaintiff had suffered significant psychiatric and psychological harm as a result of the abuse. The court considered the severity and impact of the abuse, the age of the plaintiff at the time of the abuse, and the ongoing effects of the abuse on the plaintiff's mental health. The court awarded the plaintiff damages in the amount of $XXX,XXX, reflecting the harm caused by the abuse.

The court made an order that the defendant pay the plaintiff the amount of $XXX,XXX, together with interest and costs. The court also made a non-publication order to protect the identity of the plaintiff. The court emphasised the importance of protecting the privacy and dignity of child victims of sexual abuse, and noted that the order was intended to prevent the further traumatisation of the plaintiff.

Orders