K v G - [2010] QSC 13

SUPREME COURT OF QUEENSLAND

CITATION:

K v G [2010] QSC 13

PARTIES:

K by her litigation guardian C
(plaintiff)
v
G
(defendant)

FILE NO:

BS 4029 of 2008

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

29 January 2010

DELIVERED AT:

Brisbane

HEARING DATE:

28 April 2009; further submissions on 26 November 2009, 7 December 2009 and 21 January 2010

JUDGE:

Daubney J

ORDER:

1. Judgment for the plaintiff against the defendant in the sum of $629,855.

2. The plaintiff will be heard as to costs.

CATCHWORDS:

DAMAGES – personal injury – sexual assaults for which defendant was convicted and imprisoned – basis for assessment of damages – whether aggravated damages ought be awarded

AM v KW [2005] NSWSC 876
Paten v Bale [1999] QSC 265
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118

Civil Liability Act 2003 (Qld)
Civil Liability Regulation 2003 (Qld)
Criminal Offence Victims Act 1995 (Qld)
Uniform Civil Procedure Rules 1999 (Qld)

COUNSEL:

Mr R A Myers for the plaintiff
No appearance for the defendant

SOLICITORS:

Shine Lawyers for the plaintiff

In this proceeding, the plaintiff claims damages for personal injuries she has suffered as a consequence of being sexually assaulted by the defendant.

Although the claim is endorsed as being one for “damages ... as a result of the negligence of the defendant”, no case of breach of duty was pleaded or advanced on behalf of the plaintiff. Counsel for the plaintiff, when queried as to the cause of action, expressly relied on and formulated the case on the basis of the assaults particularised in paragraph 4 of the statement of claim.

Paragraph 3 of the statement of claim alleged that, from about 25 December 1996 (at which time the plaintiff was eight years old), the defendant “importuned and groomed the plaintiff for a sexual relationship”, particularising such matters as rubbing his penis against the plaintiff while they were in the swimming pool, exposing himself to her and exposing her to pornographic videos and photos.

Paragraph 4 of the statement of claim then pleaded that this culminated in the defendant seducing the plaintiff, and that “between 21 January 2003 and

23 February 2003 the defendant maintained an unlawful relationship of a sexual nature with the plaintiff”. There were then particularised numerous indicia of that relationship, each of which, if proved, clearly constituted an act of actionable assault, viz:

-       touching the plaintiff’s vagina and breasts
-       digitally penetrating the plaintiff’s vagina
-       passionately kissing the plaintiff
-       having sexual intercourse with the plaintiff
-       engaging in mutual oral sex
-       inserting a vibrator into the plaintiff’s vagina

The particulars also extended to alleging that the defendant forced the plaintiff to perform oral sex on him and compelled her to watch pornographic videos.

The defendant did not appear when this trial started. Accordingly, the plaintiff proceeded under UCPR r 476 to call evidence to establish her entitlement to judgment. The plaintiff requested, and I directed under r…

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 K v G

Details

AGLC: K v G [2010] QSC 13
Case: [2010] QSC 13
Decision Date: 29 January 2010

CaseChat Overview and Summary

In the case of K v G, the plaintiff, K, sought damages for personal injury resulting from sexual assaults committed by the defendant, G. G had been convicted of the assaults and sentenced to imprisonment. The court was tasked with determining the appropriate amount of damages to be awarded to K. The case was heard in the relevant court, where the primary focus was on the quantum of damages, including whether aggravated damages should be awarded.

The court examined the severity and impact of the assaults on K's physical and mental health. It considered the nature of the offences, the trauma experienced by K, and the long-term effects of the assaults. The court also assessed whether the circumstances of the case warranted the award of aggravated damages, which are intended to reflect the moral blame attached to the defendant's conduct. After evaluating the evidence and submissions, the court concluded that the appropriate compensation for K's injuries and suffering was $629,855.

In reaching its decision, the court balanced the need to compensate K for her injuries against the principles of deterrence and punishment, which had already been addressed through G's criminal conviction and sentence. The court determined that the award of general damages was sufficient to address the impact of the assaults on K's life, without the need for additional aggravated damages. The court ordered judgment for K against G in the sum of $629,855, with further directions to be given regarding the costs.

Orders

Orders of the court

1. Judgment for the plaintiff against the defendant in the sum of $629,855.

2. The plaintiff will be heard as to costs.

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.

CITATION:	K v G [2010] QSC 13
PARTIES:	K by her litigation guardian C (plaintiff) v G (defendant)
FILE NO:	BS 4029 of 2008
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	29 January 2010
DELIVERED AT:	Brisbane
HEARING DATE:	28 April 2009; further submissions on 26 November 2009, 7 December 2009 and 21 January 2010
JUDGE:	Daubney J
ORDER:	1. Judgment for the plaintiff against the defendant in the sum of $629,855. 2. The plaintiff will be heard as to costs.
CATCHWORDS:	DAMAGES – personal injury – sexual assaults for which defendant was convicted and imprisoned – basis for assessment of damages – whether aggravated damages ought be awarded AM v KW [2005] NSWSC 876 Paten v Bale [1999] QSC 265 Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 Civil Liability Act 2003 (Qld) Civil Liability Regulation 2003 (Qld) Criminal Offence Victims Act 1995 (Qld) Uniform Civil Procedure Rules 1999 (Qld)
COUNSEL:	Mr R A Myers for the plaintiff No appearance for the defendant
SOLICITORS:	Shine Lawyers for the plaintiff