H L v H P

[2019] ACTSC 299

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

H L v H P

Citation:

[2019] ACTSC 299

Hearing Dates:

21 October 2019 – 22 October 2019

DecisionDate:

24 October 2019

Before:

Elkaim J

Decision:

1.    Judgment for the plaintiff in the sum of $150,000.00.

2.    The defendant is to pay the plaintiff’s costs of the proceedings.

Catchwords:

DAMAGES – Assessment and quantum – General damages – Aggravated damages – Future medical expenses – Sexual assault – Battery

Cases Cited:

A B v Australian Capital Territory [2018] ACTSC 16
New South Wales v Ibbett [2006] HCA 57; 229 CLR 638

Parties:

H L (Plaintiff)

H P (Defendant)

Representation:

Counsel

T Crispin with M Keaney (Plaintiff)

A Muller (Defendant)

Solicitors

In Private Law Pty Ltd (Plaintiff)

Marjason & Marjason Solicitors (Defendant)

File Number:

SC 62 of 2018

ELKAIM J:

1. On 30 September 2009 the plaintiff was sexually assaulted by the defendant. The assault amounted to a battery for which the plaintiff seeks damages.

1. Although the defendant originally denied liability, on the basis that the plaintiff had consented to the assault, that stance was properly withdrawn, leaving the dispute limited to damages.

1. The plaintiff claims damages under the following heads: General damages, future medical expenses and aggravated damages.

1. The plaintiff was born in 1994. She is the fifth of eight siblings. There is no doubt that she had a troubled upbringing. Her parents, as between each other were abusive and violent. They took drugs and drank too much alcohol. As a result the plaintiff developed an independence at an earlier age than she might have within a secure upbringing.

1. She was however close to her sisters, in particular R, S and J. They are all older than her. She was quite close to her father but not at all close to her mother.

1. The plaintiff’s parents separated in 2009. The plaintiff joined her father at her grandmother’s residence. This was a difficult time for her grandmother because her husband was dying of cancer.

1. Probably as a result of her unsettled upbringing, by 2009 the plaintiff had developed a number of rebellious habits. In particular, she was frequently “wagging” school and drinking alcohol, although the latter habit may have initially developed as a result of peer pressure. On some occasions she would binge drink.

1. S is six years older than the plaintiff. As at 2009 S had a steady boyfriend, the defendant. He and S lived together at an address in Casey.

1. The plaintiff first met the defendant in about 2004. At that time the plaintiff was still in primary school, aged about 10. The defendant was 17. They got on well although from time to time the plaintiff felt that the defendant was acting inappropriately. For example when playing basketball he allowed his ‘private parts’ to rub against the plaintiff. He also made unseemly comments about sexual matters. Nevertheless, the plaintiff came to trust the defendant and a good rapport developed between them.

1. On 30 September 2009 the plaintiff asked…