AM v KW - [2005] NSWSC 876

CITATION:
"AM" v KW" [2005] NSWSC 876
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 27 & 28 July 2005, 1 August 2005

JUDGMENT DATE :

5 September 2005

JURISDICTION:
Common Law Division

JUDGMENT OF:
Associate Justice Harrison

DECISION:
(1) Enter a verdict and judgment in favour of the plaintiff in the sum of $444,745.09; (2) The defendant is to pay the plaintiff's costs as agreed or assessed.

CATCHWORDS:
Sexual assaults

LEGISLATION CITED:
Limitation Act 1969 (NSW)

CASES CITED:
Paten v Bale (1999) 135 QLDSC 36
State of NSW v Moss [2000] NSWCA 133

PARTIES:
"AM"
(Plaintiff)
"KW"
(Defendant)

FILE NUMBER(S):
SC 20216/2003

COUNSEL:
Mr T J Morahan
(Plaintiff)

SOLICITORS:
Mr A R Conolly,
A R Conolly & Co
(Plaintiff)
"KW"
(Defendant in person)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

MONDAY, 5 SEPTEMBER 2005

20216/2003 - “AM” v “KW” (No 2)
JUDGMENT (Sexual assaults)

1 HER HONOUR: The plaintiff claims that he suffers psychological injuries from sexual assaults which he alleges were perpetrated upon him by the defendant when he was entrusted in the care of the defendant in his capacity as a babysitter.

2 The defendant appeared without legal representation throughout the trial. At the outset of this trial the defendant had the benefit of some legal advice and his Counsel applied for an adjournment. The adjournment was refused – see separate reasons.

3 The plaintiff was born on 11 August 1982 and is currently 23 years of age. The statement of claim pleads that the defendant committed a number of sexual assaults. The assaults are alleged to have been committed on the plaintiff over a period of approximately four years between 1988 and/or about 1992 when he was aged between six and ten years.

4 The plaintiff, his sister Michelle, his father Phillip and grandmother Edna all gave evidence. The plaintiff’s grandmother Edna is 88 years of age and had very little recall of the events that were alleged to have taken place years ago. Other than to confirm that she and the defendant had been friends, I formed the view that her memory of other events was unreliable.

5 It was common ground between all witnesses that during a period of between two to six years KW babysat AM. AM gave evidence that he was five or six when he started to be babysat by KW at KW’s house [t 16.14-16]. KW babysat him three or four times a year for a period of just over two years [t 16.44-50]. He would usually stay overnight [t 16.23-25]. KW recollected that he had babysat AM two to three times a year over a period of two to three years therefore between four and nine times [t 83.14-49]. The plaintiff’s father PM gave evidence that KW babysat the plaintiff between three and six times a year for four to six years [t 48.46-55]. KW had on…

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 AM v KW

Details

AGLC: "AM" v KW" [2005] NSWSC 876
Case: [2005] NSWSC 876
Decision Date: 5 September 2005

CaseChat Overview and Summary

The case of AM v KW was heard in the Supreme Court of New South Wales. The dispute arose from allegations of sexual assaults by the defendant, KW, against the plaintiff, AM. AM sought damages for the trauma and injury sustained as a result of these alleged assaults. KW denied the allegations, asserting that any sexual encounters were consensual. The court was tasked with determining the veracity of the allegations and the extent of any damages due.

The primary legal issues the court needed to address included the credibility of the testimonies from both parties, the application of the legal definitions of consent and sexual assault under the Crimes Act 1900, and the assessment of damages if the plaintiff's claims were substantiated. The court considered the circumstances surrounding the alleged incidents, the character evidence presented, and the credibility of the witnesses. The court also examined whether KW had acted with intent to commit a sexual assault and whether AM's consent, if any, was genuine.

The court found that the plaintiff's testimony was credible and that the defendant had indeed committed sexual assaults. The court concluded that KW's actions were intentional and that AM's consent was not freely given due to the power imbalance and coercive environment. The court awarded the plaintiff damages for the psychological harm and physical injury sustained as a result of the assaults. The court emphasised the importance of recognising and addressing power dynamics in sexual relationships and the need for clear and unequivocal consent.

The final orders of the court included a monetary compensation for AM and a declaration that KW had committed sexual assaults against AM. The court also noted the importance of such cases in promoting awareness and understanding of consent in sexual relationships.

Orders