Citation: A v B [2021] NSWDC 491
Court: District Court of New South Wales
Date: 15 September 2021
Judge(s): Dicker SC DCJ
Background
The plaintiff, identified only as Mrs A, brought a claim in battery against the defendant, Mr B, arising from an alleged rape she says he committed against her in 1972, when she was 16 years old and he was 19. The alleged incident involved the defendant arriving at the plaintiff's home one evening, taking her by the arm, and driving her to a location where she says he sexually assaulted her without her consent.
The defendant acknowledged a sexual encounter occurred in around October or November 1972 but denied any assault. He pleaded that the plaintiff participated in and consented to the activity, and that he immediately stopped when she asked him to. He also pleaded that the plaintiff had visited his residence alone on 12 to 15 prior occasions and engaged in sexual activity with him, and that she remained on friendly terms with him after the incident, including inviting him to her wedding.
The plaintiff sought damages for battery, as well as for psychiatric injury, including post-traumatic stress disorder (PTSD) and generalised anxiety disorder, which expert evidence confirmed she currently suffers. A suppression order was made preventing publication of any information tending to identify either party.
Legal Issues
- Whether the plaintiff's account of the 1972 incident should be accepted on the balance of probabilities, having regard to the seriousness of the allegations and the principles in Briginshaw v Briginshaw
- Whether the defendant committed an intentional battery by engaging in sexual intercourse with the plaintiff without her consent
- Whether the Civil Liability Act 2002 (NSW) applied (or whether the common law governed the claim)
- What quantum of damages, including general damages, economic loss, and aggravated or exemplary damages, would be appropriate if the claim succeeded
Decision
The central question was whether the plaintiff's account of events was more probable than not. Dicker SC DCJ acknowledged that the plaintiff appeared to genuinely believe a violent sexual assault had occurred. However, having regard to the whole of the evidence, the court was not satisfied that the plaintiff's case had been established on the balance of probabilities, particularly given the seriousness of the allegations and the standard of satisfaction required under the Briginshaw principle.
On the applicable law, both parties accepted that a claim in battery involving sexual assault is governed by the common law, not the Civil Liability Act 2002 (NSW). Section 3B(1)(a) of that Act excludes intentional acts done with intent to cause injury or death from its operation, a position confirmed in Gersbach v Gersbach and MC v Morris. The battery alleged was intentional rather than merely negligent.
The court also assessed damages on a contingent basis in the event the factual findings had gone the other way. On aggravated damages, the court indicated it would have allowed $25,000, noting the serious and brazen nature of the alleged conduct toward a 16-year-old and the significant injury to feelings and humiliation involved. The court found the facts would not have warranted an award of exemplary damages. No amount was allowed for diminution in earning capacity, given evidence that the plaintiff continued to work full time in her husband's business throughout the relevant period.
Judgment was entered for the defendant, with costs ordered against the plaintiff.
Orders Made
- Judgment for the defendant against the plaintiff
- The plaintiff is to pay the defendant's costs of the proceedings as agreed or assessed
- Liberty to the parties to seek a different costs order within 14 days
Key Takeaways
- The District Court confirmed that claims in battery involving sexual assault are governed by the common law and fall outside the Civil Liability Act 2002 (NSW) by operation of s 3B(1)(a), consistent with Gersbach v Gersbach [2018] NSWSC 1685 and MC v Morris [2019] NSWSC 1326.
- Where allegations are serious, the Briginshaw standard requires the court to be conscious that the degree of satisfaction needed is commensurate with the gravity of the allegation, even in civil proceedings determined on the balance of probabilities.
- A plaintiff's apparent genuine belief in the truth of their account does not, of itself, satisfy the civil standard of proof when the whole of the evidence leaves reasonable uncertainty about what occurred.
- Aggravated damages in battery cases are compensatory in nature, compensating for injury to feelings, humiliation, and insult, but must be assessed carefully to avoid double-counting with general damages, as confirmed in State of New South Wales v Riley (2003) 57 NSWLR 496.
- No reduction in earning capacity was established on the evidence where the plaintiff continued to work full time throughout the period following the alleged incident, notwithstanding diagnosed psychiatric conditions.
Legislation and Cases Referenced
Legislation
- Civil Liability Act 2002 (NSW), s 3B(1)(a)
- Evidence Act 1995 (NSW)
- Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7
Cases
- Briginshaw v Briginshaw (1938) 60 CLR 336
- Croucher v Cachia [2016] NSWCA 132
- Cubillo v Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1
- Danckert v Tonkin [2015] NSWSC 1570
- Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
- Gautem v Health Care Complaints Commission [2021] NSWCA 85
- Gersbach v Gersbach [2018] NSWSC 1685
- Gorman v McKnight [2020] NSWCA 20
- KS v GR [2020] NSWDC 73
- Kumar v Legal Services Commissioner [2015] NSWCA 161
- Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1
- MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 657
- MC v Morris [2019] NSWSC 1326
- Musa v Alzreaiawi [2021] NSWCA 12
- Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; [1992] HCA 66
- Nguyen v Tran [2018] NSWCA 215
- Perpetual Trustees Victoria Ltd v Cox [2014] NSWCA 328
- Sangha v Baxter [2009] NSWCA 78
- State of New South Wales v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496
- Watson v Foxman (1995) 49 NSWLR 315