P v D - [2018] NSWDC 277

District Court

New South Wales

Medium Neutral Citation: P v D [2018] NSWDC 277
Hearing dates: 25, 26 and 27 September 2018
Date of orders: 04 October 2018
Decision date: 04 October 2018
Jurisdiction: Civil
Before: Russell SC DCJ
Decision:
(1)   Judgment for the plaintiff against the defendant for $472,742.04.
(2)   Order the defendant to pay the plaintiff’s costs.
(3) Order the plaintiff to pay the defendant’s costs of the Amended Defence filed on 26 September 2018.
(4)   Grant leave to the parties to approach my Associate within 7 days if any different costs order is sought.

Catchwords: TORTS – sexual assault – child assaulted by adult resulting in psychological trauma and drug and alcohol abuse – intentional tort – outside scope of Civil Liability Act 2002 – common law applies
TORTS – sexual assault – child assaulted by adult over 40 years ago – effects of sexual assault, drug and alcohol abuse, and medication upon memory
DAMAGES –general damages – interest upon past general damages – out-of-pocket expenses – economic loss and future loss of earning capacity – no evidence of earning rates
DAMAGES – effect of payment of victims compensation by defendant – damages assessed without reference to payment - reduction in judgment to reflect payment – ss 55, 74 and 102 Victims Rights and Support Act 2013 (NSW)
Legislation Cited: Civil Liability Act 2002
Court Suppression and Non-Publication Orders Act 2010
Victims Rights and Support Act 2013
Cases Cited: State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536
Upadhyaya v R [2017] NSWCCA 162
Category: Principal judgment
Parties: P (a pseudonym) (Plaintiff)
D (a pseudonym) (Defendant)
Representation:
Counsel:
K Andrews (Plaintiff)
P Glissan (Defendant)
Solicitors:
Wyatts Lawyers & Advisors (Plaintiff)
Philip Cox (Defendant)

File Number(s): 2017/333497
Publication restriction: 1 Order, pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010, directing that there be no publication of the name or address of either party or any information tending to reveal the identity or address of either party upon the grounds that: (a) the order is necessary to avoid causing undue distress or embarrassment to the plaintiff who was the victim of offences of a sexual nature committed by the defendant, when the plaintiff was a child; (b) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

Judgment

Introduction

By an Amended Statement of Claim filed on 26 September 2018 during the hearing the plaintiff P sued the defendant D for damages at common law caused by indecent assaults committed upon P by D between 1 January 1972 and 31 December 1975. At the time P was a child and D was an adult.
Because of the nature of the cause of action I made a non-publication order during the trial and this judgment will use pseudonyms for the names of the parties and for any other details which might indirectly identify…

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 P v D

Details

AGLC: P v D [2018] NSWDC 277
Case: [2018] NSWDC 277
Decision Date: 04 October 2018

CaseChat Overview and Summary

In the Supreme Court of New South Wales, the case of P v D addressed a claim of sexual assault against the defendant by the plaintiff, who was a child at the time of the assault over 40 years ago. The plaintiff alleged that the assault resulted in psychological trauma, drug and alcohol abuse, and that the defendant's actions constituted an intentional tort. The case required the court to determine whether the defendant's liability for the assault was governed by the Civil Liability Act 2002 (NSW) or if common law principles should apply. Additionally, the court had to assess the damages that the plaintiff was entitled to receive, including general damages, interest on past general damages, out-of-pocket expenses, economic loss, and future loss of earning capacity.

The court found that the assault fell outside the scope of the Civil Liability Act 2002 (NSW) and that common law principles applied. The plaintiff's claim was complicated by the effects of the assault, drug and alcohol abuse, and medication on her memory. The court had to determine if the plaintiff's claims were barred by the statute of limitations, but found that they were not. The court also needed to consider the impact of the defendant's payment of victims compensation on the damages awarded. The court awarded general damages, interest on past general damages, out-of-pocket expenses, and economic loss, but found that there was no evidence to determine the plaintiff's future loss of earning capacity.

The court ordered judgment for the plaintiff against the defendant for $472,742.04, which was reduced to reflect the payment of victims compensation by the defendant. The court also ordered the defendant to pay the plaintiff's costs and the plaintiff to pay the defendant's costs of the Amended Defence filed on 26 September 2018. The court granted leave to the parties to approach the Associate within 7 days if any different costs order was sought. The court's decision provides guidance on the application of common law principles to sexual assault claims and the assessment of damages in such cases.

Orders

Orders of the court

(1) Judgment for the plaintiff against the defendant for $472,742.04.

(2) Order the defendant to pay the plaintiff’s costs.

(3) Order the plaintiff to pay the defendant’s costs of the Amended Defence filed on 26 September 2018.

(4) Grant leave to the parties to approach my Associate within 7 days if any different costs order is sought.

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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Medium Neutral Citation:	P v D [2018] NSWDC 277
Hearing dates:	25, 26 and 27 September 2018
Date of orders:	04 October 2018
Decision date:	04 October 2018
Jurisdiction:	Civil
Before:	Russell SC DCJ
Decision:	(1) Judgment for the plaintiff against the defendant for $472,742.04. (2) Order the defendant to pay the plaintiff’s costs. (3) Order the plaintiff to pay the defendant’s costs of the Amended Defence filed on 26 September 2018. (4) Grant leave to the parties to approach my Associate within 7 days if any different costs order is sought.
Catchwords:	TORTS – sexual assault – child assaulted by adult resulting in psychological trauma and drug and alcohol abuse – intentional tort – outside scope of Civil Liability Act 2002 – common law applies TORTS – sexual assault – child assaulted by adult over 40 years ago – effects of sexual assault, drug and alcohol abuse, and medication upon memory DAMAGES –general damages – interest upon past general damages – out-of-pocket expenses – economic loss and future loss of earning capacity – no evidence of earning rates DAMAGES – effect of payment of victims compensation by defendant – damages assessed without reference to payment - reduction in judgment to reflect payment – ss 55, 74 and 102 Victims Rights and Support Act 2013 (NSW)
Legislation Cited:	Civil Liability Act 2002 Court Suppression and Non-Publication Orders Act 2010 Victims Rights and Support Act 2013
Cases Cited:	State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536 Upadhyaya v R [2017] NSWCCA 162
Category:	Principal judgment
Parties:	P (a pseudonym) (Plaintiff) D (a pseudonym) (Defendant)
Representation:	Counsel: K Andrews (Plaintiff) P Glissan (Defendant) Solicitors: Wyatts Lawyers & Advisors (Plaintiff) Philip Cox (Defendant)
File Number(s):	2017/333497
Publication restriction:	1 Order, pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010, directing that there be no publication of the name or address of either party or any information tending to reveal the identity or address of either party upon the grounds that: (a) the order is necessary to avoid causing undue distress or embarrassment to the plaintiff who was the victim of offences of a sexual nature committed by the defendant, when the plaintiff was a child; (b) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.