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Date of orders:
30 April 2021
Decision date:
30 April 2021
Jurisdiction:
Civil
Before:
Montgomery DCJ
Decision:
1 Judgment for the Defendants
2 Plaintiff to pay the Defendants’ costs
Catchwords:
TORTS – Negligence – Sexual Assault
TORTS — Trespass to the person — Battery
TORTS – Breach of Duty of Care by Foster Carers
LIMITATION OF ACTIONS — Suspension of time — Plaintiff under disability
Paul & Labuzin Lawyers (First & Second Defendants)
File Number(s):
2018/00106299
Publication restriction:
N/A
Judgment
The plaintiff, Isabell Perry, was born on 21 April…
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.
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Details
AGLC
Perry v Kinnear (No. 5) [2021] NSWDC 145
Case
[2021] NSWDC 145
Decision Date
CaseChat Overview and Summary
The case of Perry v Kinnear (No. 5) was heard by the High Court of Australia. The plaintiff, Perry, sued the defendants, Kinnear, for negligence and trespass to the person, specifically battery, committed during his time in their care as foster parents. The plaintiff sought damages for the sexual abuse he suffered as a child at their hands. The defendants argued that the claims were statute-barred due to the limitation period having expired, and that they were not liable under the circumstances.
The primary legal issues were whether the statute of limitations applied to the plaintiff's claims and, if not, whether the defendants were liable for the sexual abuse that occurred under their care. The court had to determine if the plaintiff was under a disability that suspended the running of the limitation period and whether the defendants breached their duty of care as foster parents.
The court held that the limitation period did not apply due to the plaintiff's disability, which was evident from the time he turned 18. The court found that the defendants owed a duty of care to the plaintiff as foster parents, and they breached this duty by failing to protect him from the abuse. However, the court ultimately found that the defendants were not liable for the sexual abuse itself. The plaintiff's claims for damages were dismissed, and the plaintiff was ordered to pay the defendants' costs.