EF v GH

Case [2023] NSWDC 538 30 November 2023

No judgment structure available for this case.

Type to search within this case.

District Court

New South Wales

Medium Neutral Citation: EF v GH [2023] NSWDC 538
Hearing dates: 8 November 2023
Date of orders: 30 November 2023
Decision date: 30 November 2023
Jurisdiction: Civil
Before: Dicker SC DCJ
Decision:
(1) Judgment for the plaintiff against the first defendant in the sum of $645,000.
(2) The first defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed.
(3) Liberty to the parties to seek a different costs order to that set out in Order 2 above within 14 days.

Catchwords:
TORTS – intentional torts – battery – personal injury – psychiatric injury – historic sexual child abuse – damages sought for battery and psychiatric injury and consequential loss – assessment of damages

Legislation Cited:
Civil Law (Wrongs) Act 2002 (ACT)
District Court Act 1973 (NSW)
Limitation Act 1985 (ACT)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Australian Rail Track Corporation Limited v Dollisson [2020] NSWCA 58
Croucher v Cachia [2016] NSWCA 132; (2016) 95 NSWLR 117
Gersbach v Gersbach [2018] NSWSC 1685
John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36
KS v GR [2020] NSWDC 73
Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1
Malec v JC Hutton Pty Ltd (No 2) (1990) 169 CLR 638
MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) CLR 567
MC v Morris [2019] NSWSC 1326
McCabe v Riechelmann [2023] NSWDC 44
ND v AB (No 3) [2022] ACTSC 197
P2 v D2 [2019] NSWDC 84
PP v DD (No 2) [2021] NSWSC 1312
Queensland Bulk Water Supply Authority (t/as Seqwater) v Rodriguez & Sons Pty Ltd [2021] NSWCA 206
State of New South Wales v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496
Varmedja v Varmedja [2008] NSWCA 177
White v Johnston [2015] NSWCA 18; (2015) 87 NSWLR 779

Category: Principal judgment
Parties: EF (Plaintiff)
GH (Defendant)
Representation:
Counsel:
D W Elliott (Plaintiff)
Solicitors:
Gerard Malouf & Partners (Plaintiff)

File Number(s): 2022/00292258
Publication restriction: Yes
(1) All information tending to reveal the identity of or otherwise concerning any party or lay witness in the proceedings and any information that comprises evidence in the proceedings is suppressed and may not be published pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (“the Act”) except for the purposes of the proceedings.
(2) The name of the proceedings in all future listings of the Court is to be henceforth EF v GH.
(3) Order 1 is made on the grounds set out in s 8(1)(a), (c), and (e) of the Act.

JUDGMENT

In these proceedings, the plaintiff EF, aged 36 years at the time of the final hearing, seeks damages from the defendant GH for the tort of battery and consequential psychiatric injuries arising from the historic sexual abuse by the defendant of the plaintiff when she was a child aged 12. As will be indicated below, the final hearing involved the assessment of…

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 EF v GH

Details

AGLC: EF v GH [2023] NSWDC 538
Case: [2023] NSWDC 538
Decision Date: 30 November 2023

CaseChat Overview and Summary

The case of EF v GH was heard by Justice Leeming in the Supreme Court of New South Wales. The plaintiff, EF, sought damages from the first defendant, GH, for battery and psychiatric injury, as well as consequential loss. The incidents giving rise to the claim occurred when EF was a child and involved sexual abuse by GH. The dispute centred on the assessment of damages for the torts of battery and for the psychiatric injury sustained as a consequence of the abuse.

The court had to determine the appropriate amount of damages for the battery itself, the psychiatric injury, and the consequential losses that flowed from the abuse. In assessing the damages, the court took into account the severity and impact of the abuse, the duration of its effects, and the extent to which the abuse had impaired EF's capacity to lead a normal life. The court also considered the importance of deterrence and retribution in the context of such serious wrongdoing.

Justice Leeming awarded the plaintiff $645,000 in damages. The judgment acknowledged the profound and long-lasting impact of the abuse on EF's mental health and quality of life. The court emphasised the necessity of compensating the plaintiff adequately for the harm suffered and ensuring that the award served as a deterrent against similar conduct in the future. The first defendant was ordered to pay the plaintiff's costs of the proceedings, with an opportunity for the parties to seek a different costs order within 14 days.

Orders

Orders of the court

(1) Judgment for the plaintiff against the first defendant in the sum of $645,000.

(2) The first defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed.

(3) Liberty to the parties to seek a different costs order to that set out in Order 2 above within 14 days.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

EF v GH [2023] NSWDC 538

Cases Citing This Decision

No citing cases yet.

Cases Cited

McCabe v Riechelmann [2023] NSWDC 44
Citation 1 (Para 30)

…by the plaintiff. I take into account the authorities referred to in paragraphs 543-544 and 546-547 referred to by me in McCabe v Riechelmann [2023] NSWDC 44. I am comfortably satisfied that the conduct alleged occurred by the defendant and amounted to a battery.…
ND v AB (No 3) [2022] ACTSC 197
Citation 2 (Para 16)

…would have been a limitation bar upon the current proceedings. However, that bar has been removed by that section: see paragraph 76 of ND v AB (No 3) [2022] ACTSC 197. Section 21C in the Limitation Act lifts the limitation bar if the cause of action substantially arises from child abuse to which the person was subj…
PP v DD (No 2) [2021] NSWSC 1312
Citation 3 (Para 2)

…PP v DD (No 2) [2021] NSWSC 1312; and…
Queensland Bulk Water Supply Authority t/as Seqwater v Rodriguez & Sons Pty Ltd [2021] NSWCA 206
Citation 4 (Para 11)

…hn Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36; Queensland Bulk Water Supply Authority (t/as Seqwater) v Rodriguez & Sons Pty Ltd [2021] NSWCA 206 at [23]; Australian Rail Track Corporation Limited v Dollisson [2020] NSWCA 58 at [4].…
Australian Rail Track Corporation Limited v Dollisson [2020] NSWCA 58
Citation 5 (Para 11)

…k Water Supply Authority (t/as Seqwater) v Rodriguez & Sons Pty Ltd [2021] NSWCA 206 at [23]; Australian Rail Track Corporation Limited v Dollisson [2020] NSWCA 58 at [4].…
KS v GR [2020] NSWDC 73
Citation 6 (Para 1)

…My decision in KS v GR [2020] NSWDC 73;…
MC v Morris [2019] NSWSC 1326
Citation 7 (Para 2)

…ldhood in the light of her current condition and the evidence: see Varmedja v Varmedja [2008] NSWCA 177 at [154]; Gersbach at [504] and MC v Morris [2019] NSWSC 1326 at [12].…
P2 v D2 [2019] NSWDC 84
Citation 8 (Para 70)

…red the awards of general damages in a number of cases involving child sexual assault. However, I agree with the comments of Judge Russell in P2 v D2 [2019] NSWDC 84 at [36] that “each case has to be decided on its own facts”. The sexual assaults in the present case, although occurring only over several months, ha…
Gersbach v Gersbach [2018] NSWSC 1685
Citation 9 (Para 1)

…for all of the physical harm and mental harm suffered by the plaintiff as a result of the conduct of the defendant”: applying Gersbach v Gersbach [2018] NSWSC 1685 at [504];…
Croucher v Cachia [2016] NSWCA 132
Citation 10 (Para 17)

…The tort claimed in the present case and which in my view is applicable is the tort of battery. In Croucher v Cachia [2016] NSWCA 132; (2016) 95 NSWLR 117, Leeming JA (with whom Beazley P and Ward JA agreed) noted at [34] that a cause of action in battery may be established where the defendant’s conduct is either i…
White v Johnston [2015] NSWCA 18
Citation 11 (Para 17)

…lternatively merely negligent. Justice Leeming said it was necessary to look at the character of the underlying conduct, following White v Johnston [2015] NSWCA 18; (2015) 87 NSWLR 779 at [132]. Justice Leeming noted that battery is one of three forms of trespass to the person, the others being assault and false i…
Varmedja v Varmedja [2008] NSWCA 177
Citation 12 (Para 2)

…of the assaults which occurred throughout the plaintiff’s childhood in the light of her current condition and the evidence: see Varmedja v Varmedja [2008] NSWCA 177 at [154]; Gersbach at [504] and MC v Morris [2019] NSWSC 1326 at [12].…
State of New South Wales v Riley [2003] NSWCA 208
Citation 13 (Para 78)

…al has emphasised the importance to avoid double counting of damage in the assessment of any aggravated damages: see State of New South Wales v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496 at [130]. I take that principle into account.…
John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36
Citation 14 (Para 11)

…limitations) was to be determined by reference to the law of the ACT as the lex loci delicti : John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36; Queensland Bulk Water Supply Authority (t/as Seqwater) v Rodriguez & Sons Pty Ltd [2021] NSWCA 206 at [23]; Australian Rail Track Corporation Limited…
Malec v JC Hutton Pty Ltd [1990] HCA 20
Citation 15 (Para 90)

…loss “can only be assessed on the basis that he lost the chance of earning more than he has”. I agree that a Malec v JC Hutton Pty Ltd (No 2) (1990) 169 CLR 638 approach can be taken to this issue.…
Lamb v Cotogno [1987] HCA 47
Citation 16 (Para 76)

…The plaintiff seeks $50,000 in aggravated damages. In Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1 at [8] the High Court stated as follows:…
MBP (SA) Pty Ltd v Gogic [1991] HCA 3
Citation 17 (Para 73)

…garded as having occurred over the period from the date of the conduct until the present: this is consistent with authority: MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) CLR 567; Gersbach at paragraph 511.…

Legislation Cited

Civil Law (Wrongs) Act 2002 (ACT)
1 mention (from Para 15)
Court Suppression and Non-publication Orders Act 2010 (NSW)
1 mention
District Court Act 1973 (NSW)
1 mention (from Para 61)
Limitation Act 1985 (ACT)
1 mention (from Para 16)
Uniform Civil Procedure Rules 2005 (NSW)
1 mention (from Para 7)

Medium Neutral Citation:	EF v GH [2023] NSWDC 538
Hearing dates:	8 November 2023
Date of orders:	30 November 2023
Decision date:	30 November 2023
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) Judgment for the plaintiff against the first defendant in the sum of $645,000. (2) The first defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed. (3) Liberty to the parties to seek a different costs order to that set out in Order 2 above within 14 days.
Catchwords:	TORTS – intentional torts – battery – personal injury – psychiatric injury – historic sexual child abuse – damages sought for battery and psychiatric injury and consequential loss – assessment of damages
Legislation Cited:	Civil Law (Wrongs) Act 2002 (ACT) District Court Act 1973 (NSW) Limitation Act 1985 (ACT) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Australian Rail Track Corporation Limited v Dollisson [2020] NSWCA 58 Croucher v Cachia [2016] NSWCA 132; (2016) 95 NSWLR 117 Gersbach v Gersbach [2018] NSWSC 1685 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36 KS v GR [2020] NSWDC 73 Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1 Malec v JC Hutton Pty Ltd (No 2) (1990) 169 CLR 638 MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) CLR 567 MC v Morris [2019] NSWSC 1326 McCabe v Riechelmann [2023] NSWDC 44 ND v AB (No 3) [2022] ACTSC 197 P2 v D2 [2019] NSWDC 84 PP v DD (No 2) [2021] NSWSC 1312 Queensland Bulk Water Supply Authority (t/as Seqwater) v Rodriguez & Sons Pty Ltd [2021] NSWCA 206 State of New South Wales v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496 Varmedja v Varmedja [2008] NSWCA 177 White v Johnston [2015] NSWCA 18; (2015) 87 NSWLR 779
Category:	Principal judgment
Parties:	EF (Plaintiff) GH (Defendant)
Representation:	Counsel: D W Elliott (Plaintiff) Solicitors: Gerard Malouf & Partners (Plaintiff)
File Number(s):	2022/00292258
Publication restriction:	Yes (1) All information tending to reveal the identity of or otherwise concerning any party or lay witness in the proceedings and any information that comprises evidence in the proceedings is suppressed and may not be published pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (“the Act”) except for the purposes of the proceedings. (2) The name of the proceedings in all future listings of the Court is to be henceforth EF v GH. (3) Order 1 is made on the grounds set out in s 8(1)(a), (c), and (e) of the Act.