KS v GR

Case [2020] NSWDC 73 26 March 2020

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District Court

New South Wales

Medium Neutral Citation: KS v GR [2020] NSWDC 73
Hearing dates: 17 March 2020
Date of orders: 26 March 2020
Decision date: 26 March 2020
Jurisdiction: Civil
Before: Dicker SC DCJ
Decision:
(1) Judgment for the plaintiff against the defendant in the sum of $622,182.
(2) The 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 in (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
Legislation Cited: Civil Liability Act 2002 (NSW)
District Court Act 1973 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: Avopiling Pty Ltd v Bosevski [2018] NSWCA 146
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Croucher v Cacchia [2016] NSWCA 132
Gersbach v Gersbach [2018] NSWSC 1685
MC v Morris [2019] NSWSC 1326
Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1
MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 567
P2 v D2 [2019] NSWDC 84
Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118
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: KS (Plaintiff)
GR (Defendant)
Representation:
Counsel:
S Doupe (Plaintiff)
No appearance (Defendant)
Solicitors:
Shine Lawyers (Plaintiff)
In Person (Defendant)

File Number(s): 2019/00332286
Publication restriction: All information tending to reveal the identity of the plaintiff and the defendant in the proceedings not be published pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW).

Judgment

In these proceedings, the plaintiff, aged 66 years at the time of the final hearing, seeks damages from the defendant for the tort of battery and consequential psychiatric injuries arising from historic sexual abuse by the defendant of the plaintiff as a child between the ages of two-three years and about 14 years. The final hearing involved the assessment of damages only.
The evidence relating to the criminal charges which were ultimately brought against the defendant in about 1995 was very limited. It appears that he was charged with three counts of indecent assault and one of attempted sexual assault. Transcript from 9 December 1997 establishes that the defendant was found guilty by a jury of the four counts involving sexual assault over an extended period of time against the plaintiff. Judge Gibson entered a conviction of the defendant on 9 December 1997 (Exhibit B). It appears from the evidence that the defendant spent a period in custody of one year.

Procedural background

The plaintiff filed a Statement of Claim seeking damages against the defendant on 23 October 2019. Paragraph 3 of the Statement of Claim provides as follows:

“Between approximately…

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 KS v GR

Details

AGLC: KS v GR [2020] NSWDC 73
Case: [2020] NSWDC 73
Decision Date: 26 March 2020

CaseChat Overview and Summary

In the case of KS v GR, the plaintiff, KS, sought damages from the defendant, GR, for battery and consequential loss arising from historic sexual child abuse. The matter was heard in the Supreme Court of Victoria. KS alleged that GR had sexually abused her as a child, and as a result of this abuse, KS suffered psychiatric injury and other consequential losses.

The court was required to determine whether the defendant's actions constituted the tort of battery and whether the plaintiff was entitled to damages for the psychiatric injury and other consequential losses. The court had to consider the elements of the tort of battery, including the intentional application of force to another person, and whether the defendant's actions met this definition. Additionally, the court had to assess the extent of the psychiatric injury and other losses suffered by the plaintiff and whether they were a direct result of the defendant's actions.

The court found that the defendant's actions constituted the tort of battery, as they were intentional and resulted in the application of force to the plaintiff. The court also found that the plaintiff had suffered psychiatric injury and other consequential losses as a direct result of the defendant's actions. The court assessed the extent of the psychiatric injury and other losses and determined that the plaintiff was entitled to damages in the sum of $622,182. The court also ordered that the defendant pay the plaintiff's costs of the proceedings as agreed or assessed, with liberty to the parties to seek a different costs order within 14 days.

Orders

Orders of the court

(1) Judgment for the plaintiff against the defendant in the sum of $622,182.

(2) The 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 in (2) above within 14 days.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

KS v GR [2020] NSWDC 73

Most Recent Citation

S (a pseudonym) v R (a pseudonym) [2020] NSWDC 906

Cases Citing This Decision

EF v GH [2023] NSWDC 538
Citation 1 (Para 1)

…My decision in KS v GR [2020] NSWDC 73;…
A v B [2021] NSWDC 491
Citation 2 (Para 241)

…the plaintiff when this occurred at aged 16. The court has a duty to make a proper assessment of damages in accordance with legal principle: KS v GR [2020] NSWDC 73 at [42].…
S (a pseudonym) v R (a pseudonym) [2020] NSWDC 906
Citation 3 (Para 12)

…the conduct of the defendant ”.[4] It does not involve a separate award for each occasion of sexual abuse.[5] 4. Gersbach at [504]. 5. KS v GR [2020] NSWDC 73 at [45].…

See all citing cases →

Cases Cited

MC v Morris [2019] NSWSC 1326
Citation 1 (Para 7)

…o a major extent the common law applies: see s 3B(1)(a) of the Civil Liability Act 2002 ; Gersbach v Gersbach [2018] NSWSC 1685 at [480]; MC v Morris [2019] NSWSC 1326 at [1].…
P2 v D2 [2019] NSWDC 84
Citation 2 (Para 47)

…the awards of general damages in a number of cases involving child sexual assault. In the end, 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”. See also Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118 at 125.…
Gersbach v Gersbach [2018] NSWSC 1685
Citation 3 (Para 7)

…lity Act 2002 (NSW) does not apply and to a major extent the common law applies: see s 3B(1)(a) of the Civil Liability Act 2002 ; Gersbach v Gersbach [2018] NSWSC 1685 at [480]; MC v Morris [2019] NSWSC 1326 at [1].…
Avopiling Pty Ltd v Bosevski [2018] NSWCA 146
Citation 4 (Para 59)

…412.9 x 13.85 on a 5% table). Further medication may be needed after that time. Taking into account the principles in Avopiling Pty Ltd v Bosevski [2018] NSWCA 146, I allow an additional buffer of $2,000.…
Croucher v Cachia [2016] NSWCA 132
Citation 5 (Para 8)

…The tort which is applicable in the present case is the tort of battery. In Croucher v Cacchia [2016] NSWCA 132 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 intentional or alternatively merely negligent…
White v Johnston [2015] NSWCA 18
Citation 6 (Para 8)

…y merely negligent. His Honour said it was necessary to look at the character of the underlying conduct, following the analysis in White v Johnston [2015] NSWCA 18; (2015) 87 NSWLR 779 at [132].…
Paul v Cooke [2014] HCATrans 25
Citation 7

…fendant (this is another way in which “negligent” bears a variety of meanings, depending upon the context: see Paul v Cooke [2013] NSWCA 311; 85 NSWLR 167at [39]- [41]).”…
Paul v Cooke [2013] NSWCA 311
Citation 8

…the part of the defendant (this is another way in which “negligent” bears a variety of meanings, depending upon the context: see Paul v Cooke [2013] NSWCA 311; 85 NSWLR 167at [39]- [41]).”…
Varmedja v Varmedja [2008] NSWCA 177
Citation 9 (Para 45)

…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 paragraph 504 and MC v Morris , above, at paragraph 132.…
Stingel v Clark [2006] HCA 37
Citation 10 (Para 47)

…d utterly without his fault”. The position in this respect is essentially unchanged four centuries later. 25. As Gummow J said in Stingel v Clark [2006] HCA 37; 226 CLR 442 at [47]: “[I]n McHale v Watson , Windeyer J demonstrated that, contrary to the view taken by Diplock J in Fowler v Lanning , in an action fo…
Darby v Director of Public Prosecutions [2004] NSWCA 431
Citation 11 (Para 73)

…ect contact will be present if the defendant uses an instrument (such as gardening shears): Darby v Director of Public Prosecutions [2004] NSWCA 431; 61 NSWLR 558 at [73]. 22. Although battery is an intentional tort, a battery may occur when the defendant is merely negligent. It was in those circumstances that a un…
State of New South Wales v Riley [2003] NSWCA 208
Citation 12 (Para 49)

…how any remorse, it is important 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].…
Lamb v Cotogno [1987] HCA 47
Citation 13 (Para 46)

…The plaintiff also 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: “Aggravated damages, in contrast to exemplary damages, are compensatory in nature, being awarded for injury to plaintiff’s feelings caused by insult, humiliation and…
Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62
Citation 14 (Para 47)

…Judge Russell in P2 v D2 [2019] NSWDC 84 at [36] that “each case has to be decided on its own facts”. See also Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118 at 125.…
McHale v Watson [1964] HCA 64
Citation 15

…24. The fact that the onus lay on the defendant, and the nature of what was required to be proven, was explained by Windeyer J in McHale v Watson [1964] HCA 64; (1964) 111 CLR 384 and by Street CJ (with whom Ferguson and James JJ agreed) in Blacker v Waters [1928] NSWStRp 46; (1928) 28 SR (NSW) 406 at 410, in bo…
Williams v Milotin [1957] HCA 83
Citation 16

…occur when the defendant is merely negligent. It was in those circumstances that a unanimous High Court said in Williams v Milotin [1957] HCA 83; (1957) 97 CLR 465 at 474 that “[i]t happens in this case that the actual facts will or may fulfil the requirements of each cause of action” (ie battery and negligence…
Briginshaw v Briginshaw [1938] HCA 34
Citation 17 (Para 13)

…nce and the need for the court to reach a state of reasonable satisfaction having regard to the facts alleged as mentioned in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361 per Dixon J. See also s140 of the Evidence Act 1995 (NSW) and paragraphs 4-8 of the judgment of Garling J in Gersbach , abo…
MBP (SA) Pty Ltd v Gogic [1991] HCA 3
Citation 18 (Para 51)

…ast damages, it is appropriate to calculate interest on the amount minus the victim’s compensation amount paid, at 4%: see MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 567 and Gersbach at paragraph 511.…
These concepts derive from Weaver v Ward (1616) Hob 134
Citation 19

…son and James JJ agreed) in Blacker v Waters [1928] NSWStRp 46; (1928) 28 SR (NSW) 406 at 410, in both cases tracing the matter back to Weaver v Ward (1616) Hob 134; 80 ER 284. There it was said that no man may be excused of a trespass “except it may be judged utterly without his fault”. The position in this resp…
These concepts derive from Weaver v Ward 80 ER 284
Citation 20

…agreed) in Blacker v Waters [1928] NSWStRp 46; (1928) 28 SR (NSW) 406 at 410, in both cases tracing the matter back to Weaver v Ward (1616) Hob 134; 80 ER 284. There it was said that no man may be excused of a trespass “except it may be judged utterly without his fault”. The position in this respect is esse…

Legislation Cited

Civil Liability Act 2002 (TAS)
1 mention (from Para 7)
Court Suppression and Non-publication Orders Act 2010 (NSW)
1 mention
District Court Act 1973 (NSW)
1 mention (from Para 36)
Evidence Act 1995 (Cth)
1 mention (from Para 13)
Supreme Court Act 1970 (NSW)
1 mention
Victims Compensation Act 1996 (NSW)
1 mention (from Para 26)

Medium Neutral Citation:	KS v GR [2020] NSWDC 73
Hearing dates:	17 March 2020
Date of orders:	26 March 2020
Decision date:	26 March 2020
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) Judgment for the plaintiff against the defendant in the sum of $622,182. (2) The 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 in (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
Legislation Cited:	Civil Liability Act 2002 (NSW) District Court Act 1973 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	Avopiling Pty Ltd v Bosevski [2018] NSWCA 146 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Croucher v Cacchia [2016] NSWCA 132 Gersbach v Gersbach [2018] NSWSC 1685 MC v Morris [2019] NSWSC 1326 Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1 MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 567 P2 v D2 [2019] NSWDC 84 Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118 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:	KS (Plaintiff) GR (Defendant)
Representation:	Counsel: S Doupe (Plaintiff) No appearance (Defendant) Solicitors: Shine Lawyers (Plaintiff) In Person (Defendant)
File Number(s):	2019/00332286
Publication restriction:	All information tending to reveal the identity of the plaintiff and the defendant in the proceedings not be published pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW).