P L I-b by her next friend S D I v D
[1999] WADC 14
•30 JULY 1999
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: P L I-B by her next friend S D I -v- D [1999] WADC 14
CORAM: WISBEY DCJ
HEARD: 26 JULY 1999
DELIVERED : 30 JULY 1999
FILE NO/S: CIV 3036 of 98
BETWEEN: I P L I-B by her next friend S D I
Plaintiff
AND
J C D
Defendant
Catchwords:
Practice and procedure - Summary judgment - Alternatively application to strike out paragraph of defence alleging consent.
Legislation:
Criminal Code s329(2)
Rules of Supreme Court O14, r1; O20, r19(1)
Result:
Paragraph 2 of defence struck out. Interlocutory judgment for plaintiff for damages to be assessed.
Representation:
Counsel:
Plaintiff: Mr C P Shanahan
Defendant: Mr N P Paterson
Solicitors:
Plaintiff: Butcher Paull Calder
Defendant: Birman & Ride
Case(s) referred to in judgment(s):
Secretary Department of Health and Community Services v JWB and SMB (Marion's case) (1992) 175 CLR 218
Case(s) also cited:
Dempsey v The Queen; unreported; SCt of WA; Library No 960059; 9 February 1996
Fletcher v The Queen; unreported; SCt of WA; Library No 970125; 27 March 1997
Gillick v West Norfolk Area Health Authority [1985] 3 All ER 402
Legal Practice Board v Said; unreported; SCt of WA; Library No 940003
Madalena v Kuun et al (1987) 35 DLR (4th) 222
Mickleberg v Director of Perth Mint [1986] WAR 365
Taylor Roberts and Simons (1977) 64 Crim App R 182
WISBEY DCJ: The infant plaintiff born on 5 October 1982 commenced proceedings against J C D seeking damages for "trespass and battery". The claim correctly expressed is a claim in tort for assault and battery; for trespass to the person. The gravamen of the claim is identified in paras 3 and 4 of the substituted statement of claim namely that on two occasions between 1 February 1995 and 31 September 1995 the defendant sexually penetrated the infant plaintiff who was at the relevant time under the age of 16 years, and a child to whom the defendant stood in a loco parentis position.
On the hearing before me I allowed the defendant to amend the substituted defence by deleting the word "amended" appearing in paras 1 and 2 and replacing it with the word "substituted"; adding a new paragraph 2 to read "The defendant denies para 7 of the amended statement of claim"; and renumbering para 2 as 3 amending the number 7 therein to 8.
The effect of the substituted defence in its amended form is to admit that the plaintiff was 12 years old at the material time; that the defendant sexually penetrated her on the occasions pleaded; that the defendant was convicted following trial in the District Court of two counts of sexual penetration contrary to s329(2) of the Criminal Code; to deny that the sexual penetration occurred without the infant plaintiff's consent; and otherwise to put the plaintiff to the proof of the allegations of injury loss and damage.
It is against the background that I now consider the plaintiff's application to strike out the substituted defence and/or to obtain summary judgment.
The application for summary judgment is fundamentally flawed. Apart from the fact that the application was no made within the time period prescribed by O14, r1, the affidavit in support of the application does not verify the facts on which the claim is based, nor does the deponent depose that it is her belief there is no defence to the claim.
The application pursuant to O20, r19(1) to strike out the allegation in the defence that the infant plaintiff consented to the trespass to her person, does have substance.
The controversy for resolution is whether in law and in fact a child of 12 years is capable of consenting to sexual penetration; in this case by her de facto father.
Section 319(2)(c) of the Criminal Code provides that for the purpose of chapter XXXI ‑ Sexual Offences ‑ a child under the age of 13 years is incapable of consenting to an act which constitutes an offence against the child. That provision is limited to that chapter, and does not purport to regulate the situation in a civil action such as this. It is however indicative of the recognition of the community through the Parliament, that a child under the age of 13 years is in truth incapable of giving an informed consent to his or her sexual violation. It would be an absurdity if the position emphatically recognised in the criminal law, did not apply with equal force in civil proceedings. Indeed it would seem that public policy may well preclude a person consenting to another committing a criminal act against him.A consent must be informed and genuine and it is not so if it is the result of an inequality of status such as exists between a parent and child. A consent may be vitiated by the abuse of a relationship of trust. The plaintiff could not consent to her sexual penetration.
Lack of consent is the very gist of the tortious claim of assault and battery ‑ trespass to the person ‑ although it would appear that the burden of proof in respect of consent rests upon the defendant. In Secretary Department of Health and Community Services v JWB and SMB (Marion's case) (1992) 175 CLR 218 McHugh J said at 310:
"a person who inflicts harm upon another must justify the doing of the harm. He or she may do so by proving that the harm was lawfully consented to or that the harm occurred in circumstances which the law recognises as a justification or excuse."
Having referred to the fact that there appeared to be opposing views in England and Australia as to who had the burden of proof on the issue of consent his Honour went on to say:
"I think that the onus is on the defendant to prove consent. Consent is a claim of 'leave and licence'… However, those who contend that the plaintiff must negative consent in an action for trespass to the person deny that consent is a matter of leave and licence. They contend that lack of consent is an essential element of the action for trespass to a person. I do not accept that this is so. The essential element of the tort is an intentional or reckless, direct act of the defendant which makes or has the effect of causing contact with the body of the plaintiff. Consent may make the act lawful, but, if there is no evidence on the issue, the tort is made out. The contrary view is inconsistent with a persons right of bodily integrity. Other persons do not have the right to interfere with an individual's body unless he or she proves lack of consent to the interference."
In my view para 2 of the substituted defence as now amended must be struck out, as it is in the circumstances of this case scandalous and with the potential to prejudice, embarrass or delay the fair trial of the action. In the result the defendant is not in a position to resist the plaintiff's claim, save as to the quantum of damages.
I therefore direct that:
1.Judgment be entered for the plaintiff against the defendant for damages to be assessed.
2.The damages payable by the defendant to the plaintiff pursuant to the judgment entered herein, be assessed by a judge in open court on a day to be fixed.
3.The plaintiff do forthwith make application for a pre‑trial conference before a registrar of the court.
4.There be liberty to apply generally.
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