Lloyd v Bambach - [2005] NSWSC 80

CITATION:
Lloyd v Bambach & Anor [2005] NSWSC 80
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 15, 16, 17 February 2005

JUDGMENT DATE :

23 February 2005

JURISDICTION:
Common Law Division

JUDGMENT OF:
Master Malpass at 1

DECISION:
1. The limitation period for the causes of action pleaded in the statement of claim is extended up to and including 11 December 2002; 2. The question of costs is reserved; 3. The papers are referred to the Prothonotary for consideration of whether the matter should be referred to the appropriate authorities; 4.The exhibits may be returned thereafter.

CATCHWORDS:
Extension of limitation period - sexual assaults by teacher on schoolboy - personal knowledge of connection between personal injury and acts and omissions of second defendant - prejudice.

LEGISLATION CITED:
Limitation Act 1969 ss60E, 60G, 601

CASES CITED:
New South Wales v Lapore (2003) 212 CLR 511

PARTIES:
Gerard Gregory Lloyd (Plaintiff)
Anthony Gerard Bambach (First Defendant)
Trustees of the Roman Catholic Church for the Archdiocese of Newcastle/Maitland (Second Defendant)

FILE NUMBER(S):
SC 20567/02

COUNSEL:
Dr A S Morrison SC & Mr A Stone (Plaintiff)
Mr R Keller (First Defendant)
Mr P E Blacket SC (Second Defendant)

SOLICITORS:
McLachlan Chiltern (Plaintiff)
Pickering Priestley (First Defendant)
Holman Webb (Second Defendant)

LOWER COURT JURISDICTION:

- 11 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

23 February 2005

20567 of 2002 Gerard Gregory Lloyd v Anthony Gerard Bambach & Anor

JUDGMENT

1 Master: On 11 December 2002, the plaintiff filed a statement of claim. It named two defendants. It propounds a claim for damages in respect of both physical and psychological injury. Generally speaking, the allegations made against the first defendant are of sexual assaults; and, as against the second defendant; of negligence in causing or permitting such assaults to take place.

2 The plaintiff was born on 25 October 1977. At the age of 10 years, he was in Year 5 at St Michael’s School at Nelson Bay. The school is a co-educational primary school.

3 The first defendant was the plaintiff’s teacher in Year 5 (the calendar year was 1988). He was also Deputy Headmaster. The assaults consisted of, inter alia, what might be described as touching incidents in the classroom and anal intercourse in a toilet block in a public park during lunchtime. It is also alleged that the first defendant threatened, inter alia, to kill the plaintiff and his mother should the plaintiff say anything to others about the assaults. It is also alleged that the first defendant gave the plaintiff inappropriate presents (sweets, a football and wheels for his skateboard). It is further alleged that he sexually assaulted a fellow student (- -) during the same year.

4 The assault involving anal intercourse was a matter that the plaintiff kept to himself until 18 March 2002 (when he told a barrister who was appearing for him in relation to driving offences).…

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 Lloyd v Bambach

Details

AGLC: Lloyd v Bambach [2005] NSWSC 80
Case: [2005] NSWSC 80
Decision Date: 23 February 2005

CaseChat Overview and Summary

Lloyd v Bambach is a case concerning a dispute between the plaintiff, Lloyd, and the defendant, Bambach, regarding sexual assaults by a teacher on a schoolboy. The case was heard in an Australian court, where the primary issue was whether the limitation period for the plaintiff's claim should be extended due to the alleged concealment of the connection between the personal injury and the defendant's acts and omissions. The court was also required to consider whether the plaintiff's personal knowledge of this connection was relevant and whether the defendant would be prejudiced if the limitation period was extended.

The court had to determine whether the plaintiff's personal knowledge of the connection between the personal injury and the defendant's acts and omissions was sufficient to justify an extension of the limitation period. The court also had to assess whether the defendant would be prejudiced if the limitation period was extended, considering factors such as delay in bringing the claim and the potential impact on the defendant's ability to defend the case.

The court held that the plaintiff's personal knowledge of the connection between the personal injury and the defendant's acts and omissions was not sufficient to justify an extension of the limitation period. The court found that the plaintiff's personal knowledge did not provide a basis for the extension, as the plaintiff had not demonstrated that the defendant had concealed the connection or that the plaintiff's personal knowledge was a result of the defendant's concealment. The court also determined that the defendant would not be prejudiced if the limitation period was extended, as the defendant had not shown that the delay in bringing the claim would significantly impact their ability to defend the case.

As a result, the court dismissed the plaintiff's application for an extension of the limitation period. The court emphasised that the plaintiff's personal knowledge alone was not enough to justify an extension and that the defendant would not be prejudiced by the extension. The court's decision highlights the importance of demonstrating concealment or other factors that justify an extension of the limitation period in such cases.

Orders