Gorman v McKnight

The appeal concerned civil claims brought by several plaintiffs against the estate of the deceased, Mr McKnight, alleging sexual assaults that occurred up to 40 years prior. Mr McKnight had been charged in relation to some of the alleged incidents before his death, and had admitted to some of the acts but asserted they were consensual. Crucially, each of the plaintiffs was a minor at the time of the alleged assaults. The appeal was heard by Bell P, Payne JA, and Emmett AJA.

The central legal issues before the court were whether a permanent stay of proceedings should be granted in these circumstances, and whether consent by a minor could constitute a defence to a civil claim for damages for sexual assault.

The Court of Appeal determined that consent by a minor to sexual activity is not a defence to a civil claim for damages for sexual assault. The reasoning was that the law does not recognise a minor as having the capacity to consent to such acts, particularly given the inherent vulnerability of minors. The court found that the claims were not an abuse of process and that a permanent stay was not warranted.

Leave to appeal was granted, but the appeal itself was dismissed with costs.