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Ms P v Mr D

Ms P v Mr D

Case [2020] NSWSC 224 16 March 2020

Breach of Contract

Unjust Enrichment

Compensatory Damages

Aggravated & Exemplary Damages

Tort Law

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Supreme Court

New South Wales

Medium Neutral Citation: Ms P v Mr D [2020] NSWSC 224
Hearing dates: 23-26 September 2019
Date of orders: 16 March 2020
Decision date: 16 March 2020
Jurisdiction: Common Law
Before: Simpson AJ
Decision:
Judgment for the plaintiff in the amount of $853,550.
The defendant to pay the plaintiff’s costs of the proceedings.
Catchwords:
TORTS – intentional torts of sexual assaults and physical assault – four counts of sexual assault admitted and others denied by defendant – standard of proof – s 140 Evidence Act 1995 (NSW) –Briginshaw standard – disputed torts proved on credibility of witnesses

EVIDENCE – tendency evidence – whether assaults the defendant admitted to should be allowed as tendency evidence to prove whether the disputed assaults occurred – notice requirement under s 97 of the Evidence Act 1995 (NSW) met – similarity of fact patterns between admitted and denied assaults – tendency evidence significantly probative for at least some of the disputed assaults – tendency evidence admitted for at least some of the disputed assaults but not necessary as court satisfied that the assaults occurred even absent tendency evidence

TORTS – Wilkinson v Downton claim – whether torts committed were calculated to cause physical, psychiatric or psychological harm – each assault was calculated to and did cause the defendant such harm – not satisfied that defendant’s overall abusive and controlling behaviour aside from the assaults sufficient to satisfy the Wilkinson v Downton test - assaults sufficient to establish a Wilkinson v Downton claim even absent more general behaviour towards plaintiff

LIMITATION OF ACTIONS – no limitation period applicable to counts of sexual assault – s 6A Limitation Act 1969 (NSW) – whether 2012 non-sexual assault statute barred by 3 year discoverability period in s 50C of Limitation Act 1969 (NSW) – defendant bears onus of proof for an action being statute barred – defendant failed to discharge onus of showing psychological and psychiatric harm specifically attributable to the 2012 assault became discoverable more than three years prior to plaintiff commencing action

DAMAGES – whether damages assessed under the Civil Liability Act 2002 (NSW) – each assault excluded from the damages provisions of the Civil Liability Act 2002 (NSW) – damages at large

DAMAGES – general and aggravated damages – general damages awarded for impact of sexual and physical assaults on plaintiff’s childhood and life more generally – recognised psychiatric condition – aggravated damages awarded because assaults caused ‘injury to feelings caused by insult, humiliation and the like’

DAMAGES – plaintiff claims for past and future medical expenses – allowance based on estimate – limited evidence to support plaintiff’s specific quantification

DAMAGES – economic loss – plaintiff claims for losses related to past and future economic loss –estimate – limited evidence to support plaintiff’s specific quantification
DAMAGES – exemplary damages – defendant’s conscious wrongdoing was done in contumelious disregard for the plaintiff’s rights – discretion should be exercised in favour of plaintiff – exemplary damages awarded
Legislation Cited: Civil Liability Act 2002…

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 Ms P v Mr D

Details

AGLC: Ms P v Mr D [2020] NSWSC 224
Case: [2020] NSWSC 224
Decision Date: 16 March 2020

CaseChat Overview and Summary

In the matter of Ms P v Mr D, the plaintiff, Ms P, brought an action against the defendant, Mr D, alleging multiple counts of sexual and physical assault. The case was heard in the Supreme Court of New South Wales. The plaintiff admitted to four counts of sexual assault, while Mr D denied all allegations of assault. The court was required to determine the admissibility of tendency evidence, the applicability of the tort of Wilkinson v Downton, the relevance of the defendant's abusive and controlling behaviour, the limitation period for the non-sexual assault, and the quantum of damages.

The court found that the evidence of the admitted assaults was significantly probative to prove the disputed assaults, and it was therefore admitted. The court determined that the torts of Wilkinson v Downton were committed as each assault was calculated to, and did, cause the plaintiff physical, psychiatric or psychological harm. The court was not satisfied that the defendant's overall abusive and controlling behaviour aside from the assaults was sufficient to satisfy the Wilkinson v Downton test. The court held that the assaults were sufficient to establish a Wilkinson v Downton claim even absent more general behaviour towards the plaintiff. The court found that no limitation period applied to the counts of sexual assault, but the non-sexual assault was not statute-barred as the defendant failed to discharge the onus of showing that the psychological and psychiatric harm specifically attributable to the 2012 assault became discoverable more than three years prior to the plaintiff commencing the action.

The court held that the damages for the assaults were at large, and it awarded general damages for the impact of the sexual and physical assaults on the plaintiff's childhood and life more generally, and a recognised psychiatric condition. The court also awarded aggravated damages because the assaults caused 'injury to feelings caused by insult, humiliation and the like'. The court held that the plaintiff's claims for past and future medical expenses, economic loss, and exemplary damages were supported by limited evidence, but the defendant's conscious wrongdoing was done in contumelious disregard for the plaintiff's rights, and the discretion should be exercised in favour of the plaintiff. Therefore, exemplary damages were awarded.

The court ordered that the defendant pay the plaintiff general and aggravated damages, past and future medical expenses, economic loss, and exemplary damages. The court also ordered that the defendant pay the plaintiff's costs of the proceedings.

Orders