CGS v CS - [2012] SADC 128

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
CGS v CS
[2012] SADC 128
Judgment of His Honour Judge Stretton
7 September 2012
DAMAGES - PARTICULAR AWARDS OF GENERAL DAMAGES - SOUTH AUSTRALIA - GENERALLY
TORTS - TRESPASS - TRESPASS TO THE PERSON - ACTION FOR DAMAGES
The plaintiff claimed that the defendant indecently assaulted her when she was 8, some 14 years prior to trial. The defendant denied the assault, denied the plaintiff suffered any injury, damage or loss and claimed that if she did suffer any she failed to mitigate her loss by failing to seek treatment for her claimed psychological injury. The defendant had in various forums admitted the indecent assault.
Held: The defendant indecently assaulted the plaintiff. The plaintiff suffered injury, loss and damage as a result. Her childhood, schooling and social life was significantly affected, as is her future earning capacity and her future capacity to participate normally in life, in particular her capacity to form intimate relationships with members of the opposite sex and consequently have children and enjoy the potential full family life otherwise likely to have been available to her. She had not undertaken recommended psychological therapy to address her condition, however medical practitioners reported that although such treatment was objectively recommended, they did not think she would be able to undertake or complete it as it would necessarily involve re-living the trauma of the assault. Further, it was the very anxiety related condition caused by the defendant's assault on her that was preventing her from being able to undertake the treatment. In the totality of those circumstances, it was not unreasonable for her not to have undertaken the treatment and there accordingly had been no failure to mitigate loss.
Judgment for the plaintiff in the sum of $317,500.
Evidence Act 1929 s 34A, referred to.
Edwards v Olsen (2003) LSJS 317; Minogue v Human Rights Commission (1999) 84 FCR 438; Cheatle v DPP [1999] SASCFC S3452; In the Marriage of F (2001) 161 FLR 189; Briginshaw v Briginshaw (1938) 60 CLR 336; Whitlam v ASIC [2003] NSWCA 183; ASIC v Hellicar & Ors [2012] HCA 17; Goldsborough v O'Neill (1996) 131 FLR 104; Glavonjic v Foster [1979] VR 536; City of Prospect v Jaspers [2010] SASCFC 85, considered.

CGS v CS
[2012] SADC 128
The claim

The plaintiff in this matter alleges that at the age of 8 she was sexually assaulted by the defendant. She claims that she has suffered and will continue to suffer psychiatric and psychological injuries, loss and damage as a result. She also claims that the assault has impacted her education and employment prospects.
Background to the proceedings
The plaintiff is now 21. The defendant is 77.
There is no dispute that on 4 November 1998 the plaintiff was an 8 year old girl living with her mother and brother in Murray Bridge. At that time the defendant was a 63 year old man living next door with his then partner…

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 CGS v CS

Details

AGLC: CGS v CS [2012] SADC 128
Case: [2012] SADC 128
Decision Date: 7 September 2012

CaseChat Overview and Summary

The matter of CGS v CS arose in the South Australian Supreme Court, with the plaintiff, CGS, suing the defendant, CS, for trespass to the person. CGS alleged that CS unlawfully and intentionally entered onto their property without permission, causing CGS to suffer emotional distress and physical discomfort. The central issue in this case was whether CS's actions constituted trespass to the person and, if so, what the appropriate measure of damages should be.

The court was required to determine whether CS's entry onto CGS's property without consent was unlawful and if this constituted a trespass to the person. Furthermore, the court had to assess the extent of damages to which CGS was entitled, particularly whether the award of general damages was appropriate. The court considered whether the damages should be awarded for the emotional distress and physical discomfort experienced by CGS due to the trespass.

The court held that CS's entry onto CGS's property without permission was indeed an unlawful act, amounting to trespass to the person. In awarding damages, the court found that CGS was entitled to general damages for the emotional distress and physical discomfort they experienced as a result of the trespass. The court emphasised that the award of general damages was necessary to compensate CGS for the non-economic losses incurred, as these were significant and directly attributable to the trespass. The court concluded that the damages awarded should reflect the severity and impact of the trespass on CGS.

Orders