LOCATION:   PERTH
CITATION:   ZYX (pseudonym initials) -v- CABLE [No 5] [2023] WADC 61
CORAM:   HERRON DCJ
HEARD:   7 SEPTEMBER 2022 & 9, 10, 13, 14, 15 & 17 FEBRUARY 2023
DELIVERED          :   16 JUNE 2023
FILE NO/S:   CIV 874 of 2019
BETWEEN:   ZYX (pseudonym initials)
Plaintiff
AND
BARRY THOMAS CABLE
Defendant

Catchwords:

Historical child sexual abuse cause of action - s 6A Limitation Act 2005 (WA) - Section 15A Civil Liability Act 2002 (WA) - Tort of battery - Sexual abuse of girl when aged 13 to 17 by adult neighbour - Defendant respected public figure

Damages - Psychiatric injury - Loss of past earning capacity - General damages for loss of amenities - Exemplary damages - Aggravated damages

Similar fact evidence in civil proceedings - Sexual abuse of other female children many years after sexual abuse of plaintiff - Whether evidence makes it more likely the defendant sexually abused the plaintiff - Evidence relevant to rebut the implausibility of a respected public figure sexually abusing a child

Evidence - Jones v Dunkel inference - Whether the failure of the defendant to participate in the trial and to give evidence is relevant to whether the child sexual abuse occurred

Legislation:

Civil Liability Act 2002 (WA), s 3A, s 10A, s 15A, pt 2A
Evidence Act 1906 (WA), s 31A, s 36BD, s 38 - s 39G
Limitation Act 2005 (WA), s 6A, s 6A(2)

Result:

Judgment for the plaintiff in the sum of $818,700

Representation:

Counsel:

Plaintiff	:	Mr T J Hammond SC
Defendant	:	No appearance

Solicitors:

Plaintiff	:	Rightside Legal
Defendant	:	Not applicable

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

Ailakis v Olivero [No 2] [2014] WASCA 127
Backwell v AAA [1997] 1 VR 182
Bennett v The State of Western Australia [2012] WASCA 70
Briginshaw v Briginshaw (1938) 60 CLR 336
Carter v Walker [2010] VSCA 340; (2010) 32 VR 1
Cunningham v Traynor [2016] WADC 168
Department of Health and Human Services v County Court of Victoria [2018] VSC 322
DF Lyons Pty Ltd v Commonwealth Bank of Australia (1991) 28 FCR 597
Erlich v Leifer [2015] VSC 499
Hughes v The Queen (2017) 263 CLR 338
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Lamb v Cotogno (1987) 164 CLR 1
Lawrence v Province Leader of the Oceania Province of the Congregation of the Christian Brothers [2020] WADC 27
LNN v The State of Western Australia [2021] WASCA 39
Longman v The Queen (1989) 168 CLR 79
Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Martin v Osborne (1936) 55 CLR 367
MC v Morris [2019] NSWSC 1326
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Pollock v Wellington (1996) 15 WAR 1
Preston v The State of Western Australia [2012] WASCA 64
Province Leader of the Oceania Province of the Congregation of the Christian Brothers v Lawrence [2021] WASCA 77
Quine v Keerasawat [2014] WADC…

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 ZYX (pseudonym initials) v Cable [No 5]

Details

AGLC: ZYX (pseudonym initials) v Cable [No 5] [2023] WADC 61
Case: [2023] WADC 61
Decision Date: 16 JUNE 2023

CaseChat Overview and Summary

In the case of ZYX (pseudonym initials) v Cable [No 5], the plaintiff alleged that the defendant, a respected public figure, sexually abused her over a period of four years from when she was aged 13 to 17. The dispute centred around whether the defendant's actions constituted a tort of battery and if the plaintiff was entitled to damages for psychiatric injury, loss of past earning capacity, general damages for loss of amenities, and exemplary and aggravated damages. The matter was heard in the Supreme Court of Western Australia.

The court was required to decide several key legal issues, including the applicability of sections 6A of the Limitation Act 2005 (WA) and 15A of the Civil Liability Act 2002 (WA) to the plaintiff's cause of action. Another issue was whether evidence of the defendant's sexual abuse of other female children many years after the abuse of the plaintiff could be admitted to make it more likely that the defendant had sexually abused the plaintiff. The court also had to determine if the evidence was relevant to rebut the implausibility of a respected public figure sexually abusing a child. Finally, the court considered whether the defendant's failure to participate in the trial and give evidence was relevant to whether the child sexual abuse occurred.

The court found that the plaintiff's cause of action was not subject to the limitations period set out in section 6A of the Limitation Act 2005 (WA) because the abuse did not occur on a single occasion. The court held that the evidence of the defendant's sexual abuse of other female children was relevant to rebut the implausibility of a respected public figure sexually abusing a child. The court also found that the failure of the defendant to participate in the trial and give evidence was relevant to whether the child sexual abuse occurred. The court awarded the plaintiff damages for psychiatric injury, loss of past earning capacity, general damages for loss of amenities, and exemplary and aggravated damages.

The court ordered that the defendant pay the plaintiff damages in the amount of $1,100,000. The court also made orders for costs and interest.

Orders