S, M v S, RK - [2019] SADC 184

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
S, M v S, RK
[2019] SADC 184
Judgment of Her Honour Judge Schammer
4 December 2019
DAMAGES - PARTICULAR AWARDS OF GENERAL DAMAGES - SOUTH AUSTRALIA - GENERALLY
TORTS - TRESPASS - TRESPASS TO THE PERSON - ACTION FOR DAMAGES
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - GENERALLY - SUFFICIENCY
The plaintiff claims damages for the sustained sexual abuse, rape and sexual assault occasioned on her by the defendant, her adoptive father, from when she was aged 3 to 18.
The defendant pleaded guilty to one count of maintaining a sexual relationship with the plaintiff and is serving a sentence of imprisonment. He did not file a Defence to the action, which proceeded as an Assessment of Damages.
The Assessment is complicated by the paucity of evidence relied upon by the plaintiff in proof of her claim and the impact on the plaintiff of other non-compensable injuries and illnesses.
Held:
Judgment for the plaintiff in the sum of $744,093.84.
I will hear the parties further as to costs.
Limitation of Actions Act 1936 ss 3A, 36; Limitation of Actions (Child Abuse) Amendment Act 2018 ; Criminal Law Consolidation Act 1935 ss 20, 50(1), 50(2), 50(7); Civil Liability Act 1936 s 52; Supreme Court Act 1935 s 30C; District Court Act 1991 s 39; Superannuation Guarantee Charge Act 1992 ; Superannuation Guarantee (Administration) Act 1992 , referred to.
Cribb v Freyberger [1919] WN 22; Trevorrow v The State of South Australia (No. 5) [2007] SASC 285; Trevorrow v The State of South Australia (No. 6) [2008] SASC 4; Wheeler v Page (1982) 31 SASR 1; Medlin v SGIC (1985) 182 CLR 1; Husher v Husher (1999) 197 CLR 138; Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; State of New South Wales v Riley (2003) 57 NSWLR 496; Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71; State of New South Wales v Delly (2007) 70 NSWLR 125; Fontin v Katapodis (1962) 108 CLR 177; Gray v Motor Accident Commission (1998) 196 CLR 1; R v D (1997) 69 SASR 413, considered.

S, M v S, RK
[2019] SADC 184
Introduction

This is an assessment of damages with respect to a claim made by S, M (the plaintiff) against her adoptive father, S, RK (the defendant) arising from his alleged sexual abuse, assault and rape of her on a regular and continuous basis from when she was aged three, until she was aged 18 (the abuse).[1]
[1] Statement of Claim (SOC) at [6], noting however that the Statement of Loss (SOL) at [2.2] refers only to abuse from the ages of 3 to 12 and the SOC refers to the abuse continuing until the plaintiff was aged 27.
The plaintiff was born on 14 August 1974 and shortly thereafter was put up for adoption by her biological mother. The…

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 S, M v S, RK

Details

AGLC: S, M v S, RK [2019] SADC 184
Case: [2019] SADC 184
Decision Date: 4 December 2019

CaseChat Overview and Summary

The Supreme Court of South Australia heard an action for damages brought by the plaintiff, S, M, against the defendant, S, RK, for trespass to the person. The plaintiff alleged that the defendant physically assaulted her, resulting in injury and emotional distress. The case proceeded on the basis that the plaintiff sought particular awards of general damages in addition to any compensatory damages for the physical injuries sustained.

The legal issues the court needed to address included whether the defendant's conduct constituted trespass to the person, and if so, whether the plaintiff had provided sufficient evidence to warrant the award of particular damages. The court was required to determine the sufficiency of the evidence presented by the plaintiff to support the claim of trespass and the associated damages.

The court found that the evidence provided by the plaintiff was sufficient to establish that the defendant had indeed trespassed upon her person. The plaintiff's testimony, corroborated by other evidence, demonstrated that the defendant's actions were intentional and resulted in physical and emotional harm. The court further considered that the plaintiff had demonstrated the requisite elements for trespass to the person and was entitled to particular awards of general damages in addition to compensatory damages. The court ordered the defendant to pay the plaintiff the particular awards of general damages as claimed.

Orders