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PP v DD (No 2)

PP v DD (No 2)

Case [2021] NSWSC 1312 15 October 2021

Trespass to the person

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: PP v DD (No 2) [2021] NSWSC 1312
Hearing dates: 12, 13 and 14 July 2021
Date of orders: 15 October 2021
Decision date: 15 October 2021
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
(1) Judgment for the plaintiff in the sum of $1,273,125.
(2) I order the defendant to pay the plaintiff’s costs.

Catchwords:
TORTS – General principles - Assessing damages for sexual assault – Where contemporaneous records do not support the conclusions of medico-legal experts – Inherent difficulty in quantifying loss in cases involving sexual assault
TORTS – Trespass to the person – Assault and battery – Sexual assault - Where defendant has been convicted of criminal offences against the plaintiff

Legislation Cited:
Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW)
Court Suppression and Non-publication Orders Act 2010 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:
BDN v McCoy [2019] NSWSC 1723
Cookson v Knowles [1979] AC 556
Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132
Cullen v Trappell (1980) 146 CLR 1; [1980] HCA 10
Fernandez v Tubemakers of Australia Ltd (1975) 2 NSWLR 190
Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20
M.B.P (SA) Pty Ltd v Gogic (1991) 171 CLR 657; [1991] HCA 3
PP v DD [2021] NSWSC 1157
New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57
State of New South Wales v Ibbett (2005) 65 NSWLR 168; [2005] NSWCA 445
State of New South Wales v Loh Min Choo [2012] NSWCA 275
St George Club Ltd v Hines (1961) 35 ALJR 106
Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720
Watts v Rake (1960) 108 CLR 158; [1960] HCA 58

Category: Principal judgment
Parties: PP (Plaintiff)
DD (Defendant)
Representation:
Counsel:
K W Andrews with R Brown (Plaintiff)
Solicitors:
Carroll & O’Dea Lawyers (Plaintiff)
Hall Partners (Defendant)

File Number(s): 2018/204001
Publication restriction: Nil

Judgment

The plaintiff claims damages for sexual assaults alleged to have been committed in 1985. At that time, the defendant was the owner and operator of the Kogarah Mecca Cinema.
The defendant is now in prison having been convicted of a series of historical sexual assault charges including in respect of the plaintiff.
The defendant denies the claims albeit, as he said on a number of occasions during the conduct of the proceedings up to the time of the hearing, he “does not seek to go behind the convictions”.
The matter has been the subject of extensive case management and considerable interlocutory skirmish between the parties, particularly relating to the nature of the defence being pursued by the defendant. The defendant was previously represented by both senior and junior Counsel who were retained to appear on the hearing but withdrew when the defendant became bankrupt. Unfortunately, the consequences of this are that, whist some issues were explored comprehensively, others were not.
I was not informed as to the reasons for…

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 PP v DD (No 2)

Details

AGLC: PP v DD (No 2) [2021] NSWSC 1312
Case: [2021] NSWSC 1312
Decision Date: 15 October 2021

CaseChat Overview and Summary

The case of PP v DD (No 2) involved a dispute between PP, the plaintiff, and DD, the defendant, concerning damages for a sexual assault. The matter was heard in the Supreme Court of New South Wales. The plaintiff sought compensation for injuries sustained from the sexual assault, which the defendant had previously been convicted of committing. The crux of the dispute lay in determining the appropriate quantum of damages, particularly given the challenges in quantifying non-economic loss, such as pain and suffering, associated with sexual assault.

The primary legal issue before the court was the appropriate methodology for assessing damages in cases of sexual assault, especially when the contemporaneous records did not fully support the conclusions drawn by the medico-legal experts. The court had to balance the inherent difficulties in quantifying such losses against the need to provide fair and just compensation to the victim. Additionally, the court needed to consider the defendant's criminal convictions as a relevant factor in determining the quantum of damages.

The court acknowledged the difficulties in accurately assessing non-economic damages in sexual assault cases. It noted that while expert evidence and contemporaneous records were important, they were not the sole determinants of damages. The court emphasised the importance of a holistic approach, taking into account the nature and severity of the assault, the impact on the plaintiff's life, and the defendant's criminal convictions. The court ultimately determined that the damages should reflect the profound and lasting impact of the sexual assault on the plaintiff's physical and psychological well-being.

The court awarded damages to the plaintiff, recognising the significant impact of the sexual assault on her life. The specific amount of damages was determined based on a comprehensive assessment of the evidence and the factors outlined above. This decision highlights the need for a nuanced approach in assessing damages for sexual assault, recognising the unique challenges involved in such cases.

Orders