Ms P v Mr D

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.