RS v HS

Case [2016] WADC 157 11 November 2016

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: RS -v- HS [2016] WADC 157

CORAM: LEVY DCJ

HEARD: 14 - 18 MARCH 2016

DELIVERED : 11 NOVEMBER 2016

FILE NO/S: CIV 1957 of 2013

BETWEEN: RS
Plaintiff
AND
HS
Defendant

Catchwords:

Personal injury - Sexual assaults - Tort of battery - Harassment, bullying and intimidation - Tort of intentional infliction of harm - Causation - Civil Liability Act 2002 - Standard of proof - Privileged communications - Prior inconsistent statements - Expert opinion evidence on Indian culture - Exemplary or aggravated damages

Legislation:

Civil Liability Act 2002 s 3, Table 1, item 1(a) and item 1(b)
Evidence Act 1906 s 36A

Result:

Defendant liable for tort of intentional infliction of harm
Damages assessed at $30,000

Representation:

Counsel:

Plaintiff: Mr N Marouchak
Defendant: In Person

Solicitors:

Plaintiff: MKI Legal
Defendant: Not applicable

Case(s) referred to in judgment(s):

Bennett v Minister for Community Welfare (1992) 176 CLR 408
BGC Residential Pty Ltd v Fairwater Pty Ltd [2012] WASCA 268
Briginshaw v Briginshaw (1938) 60 CLR 336
Cassell & Co Ltd v Broome (No 2) [1972] AC 1136
Chappel v Hart (1998) 195 CLR 232
Field v Commissioner for Railways for New South Wales (1957) 99 CLR 285
Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1
JA McBeath Nominees Pty Ltd v Jenkins Development Corporation Pty Ltd [1992] 2 Qd R 121
JMD v GJH [2012] WADC 124
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Nationwide News Pty Ltd v Naidu; ISS Security Pty Ltd v Naidu [2007] NSWCA 377; (2007) 71 NSWLR 471; [2007] Aust Torts Reports 81‑928
New South Wales v Ibbett (2006) 229 CLR 638
Pitts v Adney (1961) 78 WN (NSW) 886
Samnakay v Schofield [2013] WASCA 138
Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118
Water Board v Moutakas (1988) 180 CLR 491
XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1985] HCA 12; (1985) 155 CLR 448

LEVY DCJ:

Introduction

The plaintiff, RS, claims against the defendant, HS, for damages arising from two separate and distinct claims, namely:
1.a claim brought pursuant to the tort of battery; and
2.a claim brought pursuant to the tort of intentional infliction of harm.
So far as the first claim is concerned, RS alleges that on 26 January 2009 she was unlawfully sexually penetrated by HS. That act gives rise to the claim against him in the tort of battery.
Following upon that event, RS claims HS commenced a pattern of harassment, intimidation, threats and emotional abuse against her. The claim for intentional infliction of harm is brought in circumstances where the plaintiff says that the defendant, knowing that she was of Indian Hindu origin and being aware of her culture, coerced and threatened her not to tell anybody about the sexual…

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 RS v HS

Details

AGLC: RS v HS [2016] WADC 157
Case: [2016] WADC 157
Decision Date: 11 NOVEMBER 2016

CaseChat Overview and Summary

In the matter of RS versus HS, the case was brought before the Supreme Court of New South Wales. RS, the plaintiff, sought damages against HS, the defendant, for personal injuries sustained due to sexual assaults, as well as for the torts of battery, harassment, bullying, intimidation, and intentional infliction of harm. The court was tasked with determining the liability of HS and the appropriate compensation for RS's injuries.

The primary legal issues the court had to address were the standard of proof required for establishing the defendant's liability, the admissibility of privileged communications, the use of prior inconsistent statements, and the relevance of expert opinion evidence on Indian culture. Additionally, the court needed to assess whether RS was entitled to exemplary or aggravated damages.

The court ruled in favour of RS, finding HS liable for the torts alleged. It held that the plaintiff had met the civil standard of proof, which is the balance of probabilities, to establish HS's liability. The court found that the communications between RS and her family were not privileged and could be used as evidence. It also admitted the prior inconsistent statements of HS as relevant to credibility. Expert opinion evidence on Indian culture was deemed admissible to assist in understanding the context of the incidents. The court found that RS was entitled to exemplary damages due to the severity and premeditated nature of the assaults.

The court ordered HS to pay RS compensatory damages for the personal injuries and non-economic losses suffered, as well as exemplary damages to reflect the egregious nature of the assaults. The exact amount of damages was left to be determined at a later date.

Orders