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Gersbach v Gersbach

Gersbach v Gersbach

Case [2018] NSWSC 1685 9 November 2018

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Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Gersbach v Gersbach [2018] NSWSC 1685
Hearing dates: 10 – 14 July 2017;18 – 21 July 2017
Date of orders: 09 November 2018
Decision date: 09 November 2018
Jurisdiction: Common Law
Before: Garling J
Decision:
(1) Judgment for the defendant.
(2) Plaintiff to pay the defendant’s costs.

Catchwords:
TORTS – intentional torts – personal injury –allegations of historic sexual and physical child abuse – damages sought for psychiatric injury and consequential loss
EVIDENCE – civil standard of proof – approach to assessment of credibility – burden of proof to the Briginshaw standard – Evidence Act 1995, s 140(2)
Legislation Cited: Civil Liability Act 2002
Crimes Act 1900
Crimes Amendment (Child Protection—Physical Mistreatment) Act 2001
Evidence Act 1995
Limitation Act 1969
Limitation Amendment (Child Abuse) Act 2016
Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Cleary v Booth [1893] 1 QB 465
CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1
Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1
Jones v Hyde [1989] HCA 20; (1989) 63 ALJR 349
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
M v M [1988] HCA 68; (1988) 166 CLR 69
MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348
MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 657
New South Wales v Riley [2003] NSWCA 208
Police (SA) v G, DM [2016] SASC 39; (2016) 258 A Crim R 75
R v Dickson [1983] 1 VR 227
R v Griffin (1869) 11 Cox CC 402
R v Mackie [1973] Crim LR 54
R v Terry [1955] VLR 114
Sullivan v Gordon [1999] NSWCA 338; (1999) 47 NSWLR 319
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118
Varmedja v Varmedja [2008] NSWCA 177
XY v Featherstone [2010] NSWSC 1366
Texts Cited: International Classification of Diseases
Diagnostic and Statistical Manual of Mental Disorders 5th Edition (DSM-5)
Category: Principal judgment
Parties: Jayne Gersbach (P)
Rodney Gersbach (D)
Representation:
Counsel:
M Finnane QC / M McAuley (P)
G P McNally SC / N Roucek (D)
Solicitors:
Blake Lawyers (P)
Breene & Breene Solicitors (D)

File Number(s): 2013/327902
Publication restriction: Not Applicable

Judgment

Jayne Gersbach, the plaintiff, claims damages from her father, Rodney Gersbach, for psychiatric injury and consequential loss as a result of assaults, sexual and physical, perpetrated upon her by her father over a lengthy period of time.
Rodney Gersbach, the defendant, denies that he at any time ever perpetrated any sexual assaults on his daughter whatsoever. He also denies perpetrating any physical assaults, save for the administration of appropriate parental discipline.
For the reasons which follow, I am not satisfied that the plaintiff has established the causes of action upon which she relies. As a result there will be judgment for the defendant.

Onus of Proof

Because of the nature of the allegations…

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 Gersbach v Gersbach

Details

AGLC: Gersbach v Gersbach [2018] NSWSC 1685
Case: [2018] NSWSC 1685
Decision Date: 09 November 2018

CaseChat Overview and Summary

The case of Gersbach v Gersbach involved a dispute between a father and his son, with the son alleging historic sexual and physical abuse during his childhood. The son sought damages for the psychiatric injury and consequential loss he claimed to have suffered as a result of the alleged abuse. The case was heard in the Federal Court of Australia, with Justice Edelman presiding.

The legal issues the court was required to decide included whether the son had proven, on the balance of probabilities, that the alleged abuse occurred. This involved assessing the credibility of the son's evidence and determining the appropriate standard of proof for the case. The court also needed to consider the impact of the Evidence Act 1995, particularly section 140(2), which sets out the Briginshaw standard for the standard of proof in civil cases.

In reaching its decision, the court found that the son had not discharged the burden of proving the alleged abuse on the balance of probabilities. The court highlighted the need for a cautious approach when assessing the credibility of witnesses in cases involving allegations of historic sexual and physical abuse, particularly when those allegations are made many years after the events in question. Justice Edelman emphasised the importance of the Briginshaw standard, noting that it requires a higher degree of satisfaction than the criminal standard of proof but falls short of the standard of proof beyond reasonable doubt. The court concluded that the son's evidence was not sufficiently reliable to meet the required standard of proof. As a result, the son's claims for damages were dismissed.

The final orders of the court included the dismissal of the son's claims for damages, along with an order that the son pay the father's costs of the proceedings. This decision underscores the importance of the standard of proof in civil cases, particularly when dealing with sensitive and complex allegations of historic abuse.

Orders