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Supreme Court 5 September 2005

"AM" v KW"

[2005] NSWSC 876

Sexual offences
SEXUAL ASSAULTS

Citation: "AM" v "KW" [2005] NSWSC 876
Court: Supreme Court of New South Wales, Common Law Division
Date: 5 September 2005
Judge(s): Associate Justice Harrison

Background

The plaintiff, identified by the pseudonym "AM," brought a civil claim against the defendant "KW," a family friend who had acted as his babysitter during his childhood. The plaintiff alleged that between approximately 1988 and 1992, when he was aged between six and ten years old, the defendant subjected him to a series of sexual assaults during overnight babysitting stays at the defendant's home.

The plaintiff sought damages for psychological injuries he said resulted from those assaults. He was 23 years old at the time of the hearing. The defendant appeared without legal representation throughout the trial, having had an application for an adjournment refused at the outset.

  • Whether the plaintiff's account of the alleged sexual assaults was credible and sufficiently established on the evidence
  • Whether the plaintiff suffered psychological injury caused by those assaults
  • The quantum of damages, including general damages, past and future out-of-pocket expenses, and future economic loss
  • Whether any limitation period issue arose under the Limitation Act 1969 (NSW), and how it would have been addressed had it been raised

Decision

Associate Justice Harrison accepted the plaintiff's evidence and found that the sexual assaults occurred as alleged. The court observed that the defendant's credibility was significantly undermined during cross-examination. In particular, the defendant initially insisted the plaintiff's grandmother had "always" been present during babysitting visits, but progressively conceded under questioning that the grandmother was not present on at least one, then two, and ultimately possibly more occasions. The court found the defendant had been deliberately deceptive in putting that suggestion to the plaintiff during the hearing.

Corroborating evidence came from the plaintiff's father, who gave evidence about the frequency of babysitting arrangements, the gifts the defendant had given the plaintiff outside of birthdays and Christmas, and a $50 note found in the plaintiff's possession after an overnight stay. The defendant's own admissions about the gifts supported the plaintiff's account that those gifts were used as a form of grooming or inducement.

On damages, the court awarded a substantial sum for general damages, reflecting the severity and duration of the psychological harm. The plaintiff's treating psychologist gave evidence that the plaintiff suffered ongoing difficulties including anxiety, depression, low self-esteem, and problems maintaining employment during periods of stress. For future economic loss, the court acknowledged that precise quantification was impossible given the plaintiff's young age and long working life ahead, and awarded a global sum of $100,000 on that basis, following the approach in State of NSW v Moss [2000] NSWCA 133.

The court also noted, without deciding the point, that no limitation period defence had been raised by the unrepresented defendant. Associate Justice Harrison observed that even if it had been raised, the plaintiff would likely have had grounds to seek an extension of time, given that he had first disclosed the sexual abuse to a medical practitioner in June 2002 and commenced proceedings just over a year later in August 2003.

Orders Made

  • Verdict and judgment entered in favour of the plaintiff in the sum of $444,745.09
  • The defendant is to pay the plaintiff's costs as agreed or assessed

Key Takeaways

  • A civil claim for damages arising from childhood sexual assault can succeed on the oral evidence of the plaintiff, supported by corroborating evidence from family members and admissions made by the defendant during cross-examination.
  • Where a defendant's evidence shifts materially under cross-examination on a matter central to the case, such as whether a third party was always present, the court may treat that shift as damaging to overall credibility.
  • Under the approach in State of NSW v Moss, a court assessing future economic loss for a young plaintiff may award a global sum where precise quantification is not possible, without defaulting to a nil or merely nominal figure.
  • The Limitation Act 1969 (NSW) was not pleaded as a defence by the unrepresented defendant, and the court noted in passing that provisions including ss 58, 60C, 60E, 60G, and 60I would have been available to the plaintiff had a limitation argument been raised.
  • Gifts given by a perpetrator to a child victim, particularly those accompanied by instructions to keep the giving secret, formed part of the factual matrix the court assessed in determining whether the assaults occurred.

Legislation and Cases Referenced

Legislation
- Limitation Act 1969 (NSW), ss 58, 60C, 60E, 60G, 60I

Cases
- State of NSW v Moss [2000] NSWCA 133
- Paten v Bale (1999) 135 QLDSC 36