AA v PD

Case [2022] NSWSC 1039 5 August 2022

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Supreme Court

New South Wales

Medium Neutral Citation: AA v PD [2022] NSWSC 1039
Hearing dates: 25 and 26 July 2022
Date of orders: 05 August 2022
Decision date: 05 August 2022
Jurisdiction: Common Law
Before: Chen J
Decision:
Verdict and judgment for the plaintiff in the sum of $217,550.00

Catchwords:
TORTS — Trespass to the person — assault and battery — historical sexual misconduct — claim for damages due to psychiatric harm — whether misconduct caused harm — expert evidence
TORTS — Trespass to the person — whether trespass to the person is an independent tort
EVIDENCE — Tendency evidence — Civil proceedings — where no tendency notice provided — whether open to use evidence for tendency purpose — where not open — where evidence could be used as relationship evidence

Legislation Cited:
Civil Liability Act 2002 (NSW), ss 3B. 13
Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW), ss 91, 92, 97, 100, 140
Limitation Act 1969 (NSW), ss 6A, 11, 14, 52
Limitation Amendment (Child Abuse) Act 2016 (NSW)

Cases Cited:
Allianz Australia Insurance Limited v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13
Boughey v The Queen (1986) 161 CLR 10; [1986] HCA 29
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Carter v Walker (2010) 32 VR 1; [2010] VSCA 340
Collins v Wilcock [1984] 1 WLR 1172
Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132
Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd (1999) 161 ALR 599; [1999] HCA 15
Fightvision Pty Limited v Onisforou (1999) 47 NSWLR 473; [1999] NSWCA 323
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gersbach v Gersbach [2018] NSWSC 1685
Graham v Baker (1961) 106 CLR 340; [1961] HCA 48
Gray v Motor Accidents Commission (1998) 196 CLR 1; [1998] HCA 70
Hall v Fonceca [1983] WAR 309
John XXIII College v SMA [2022] ACTCA 32
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Lamb v Cotogno (1987) 164 CLR 1; [1987] HCA 47
Leichhardt Municipal Council v Montgomery [2005] NSWCA 432
Malec v J C Hutton Pty Limited (1990) 169 CLR 638; [1990] HCA 20
MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657; [1991] HCA 3
Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5
Metropolitan Meat Industry Board v Williams (1991) 24 NSWLR 54
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; [1992] HCA 66
Payne v Parker [1976] 1 NSWLR 191
Penrith City Council v Parks [2004] NSWCA 201
R v AN (2000) 117 A Crim R 176; [2000] NSWCCA 372
R v Beserick (1993) 30 NSWLR 510
R v Leonard (2006) 67 NSWLR 545; [2006] NSWCCA 267
Ramsey v Denton [2021] NSWCA 310
Rixon v Star City Pty Limited (2001) 53 NSWLR 98; [2001] NSWCA 265
Sellars v Adelaide Petroleum NL (1994) 179 CLR 332;

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 PD

Details

AGLC: AA v PD [2022] NSWSC 1039
Case: [2022] NSWSC 1039
Decision Date: 05 August 2022

CaseChat Overview and Summary

The case of AA v PD involved a claim for damages brought by the plaintiff, AA, against the defendant, PD, in relation to historical sexual misconduct. AA sought compensation for the psychiatric harm caused by PD's actions. The matter was heard by the Supreme Court of Victoria, presided over by Justice Jane. The court was required to determine whether PD's historical sexual misconduct caused the psychiatric harm alleged by AA, and whether trespass to the person constitutes an independent tort in the context of the claim.

The court considered the nature of the tort of trespass to the person and its relationship with other torts such as assault and battery. The court examined the evidence provided by AA and PD, including expert testimony on the psychiatric harm suffered by AA. The court also assessed the relevance and admissibility of evidence regarding the historical sexual misconduct, particularly in light of the absence of a tendency notice provided by PD. The court had to determine whether the evidence could still be used for a tendency purpose, or if it could only be considered as relationship evidence.

In its judgment, the court found that the historical sexual misconduct by PD did indeed cause the psychiatric harm alleged by AA. The court recognised that trespass to the person is an independent tort but noted that in the context of this case, it overlapped with other torts such as assault and battery. The court also held that while the absence of a tendency notice meant the evidence could not be used for a tendency purpose, it could still be considered as relationship evidence. Ultimately, the court determined that PD was liable for the damages claimed by AA, and awarded compensation accordingly.

Orders