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District Court 21 December 2021

Wilden v Jennings (no 1)

[2021] NSWDC 705

Sexual offences
CIVIL SEXUAL INTERCOURSE WITHOUT CONSENT ASSESSMENT OF DAMAGES. DELAY WHETHER CLAIM BROUGHT OUT OF TIME.

Citation: Wilden v Jennings (No 1) [2021] NSWDC 705
Court: District Court of New South Wales
Date: 21 December 2021
Judge: Wilson SC DCJ

Background

The plaintiff and defendant were in a relationship from around 2010, cohabited from October 2012, and married in October 2015. The plaintiff left the matrimonial home in May 2016. During the period of cohabitation, the defendant was a professional rugby league player.

The plaintiff brought a civil claim for damages arising from four episodes of non-consensual sexual intercourse she alleged the defendant committed against her between October 2014 and May 2016, each occurring while the defendant was affected by alcohol. A separate claim for damages based on verbal abuse was abandoned during final addresses, not because the conduct was disputed, but on the basis that the law may not recognise such abuse as an actionable wrong.

The plaintiff alleged she suffered Post-Traumatic Stress Disorder (PTSD) as a result of the sexual assaults. She remarried in April 2019 but experienced difficulties with intimacy in that relationship, which she attributed to the abuse. It was around this time that she began disclosing more openly what she alleged had occurred.

  • Whether the plaintiff's allegations of non-consensual sexual intercourse were proven on the balance of probabilities, applying the elevated level of satisfaction required for serious allegations under s 140(2) of the Evidence Act 1995 (NSW) and the principles in Briginshaw v Briginshaw
  • Whether rape within marriage is actionable as a civil wrong in New South Wales
  • Whether the Civil Liability Act 2002 (NSW) applies to an intentional tort of this nature, or whether the Act is excluded under s 3B
  • Whether the claim was brought within the relevant limitation period
  • The appropriate assessment of damages, including whether aggravated and exemplary damages were available and warranted

Decision

Credibility and findings of fact. The court found the plaintiff to be an honest and reliable witness whose evidence was consistent, including in ways that aligned with text messages held by the defendant that had not been produced to her before she gave evidence. The defendant, by contrast, displayed inconsistencies and had admitted to a history of dishonesty toward the plaintiff. Applying Fox v Percy, the court also tested the plaintiff's account against objective facts and asked whether her claims were "glaringly improbable" or contrary to compelling inferences. The court was satisfied, to the required high level of satisfaction, that the defendant had engaged in sexual intercourse with the plaintiff without her consent on four occasions.

Marital rape as an actionable civil wrong. The court confirmed that rape in marriage is actionable in New South Wales. The blanket common law immunity that once prevented a wife from suing her husband in tort had been abolished by the Married Persons (Equality of Status) Act 1996 (NSW). The House of Lords had already rejected the common law marital rape immunity in R v R [1991] UKHL 12, and that position is reflected in NSW law. Accordingly, no legal barrier existed to the plaintiff's civil claim.

Application of the Civil Liability Act. The court held that the Civil Liability Act 2002 (NSW) does not apply to this claim. Section 3B of that Act excludes intentional acts done with intent to cause injury or death. Non-consensual sexual intercourse falls within that exclusion, meaning the Act's limitations on damages do not operate here.

Limitation period. The court accepted that the claim was not out of time, accepting the plaintiff's evidence as to when she was realistically able to disclose and particularise the assaults, given her PTSD and the progressive nature of her disclosure.

Damages. The court assessed damages under several heads. General damages of $200,000 were awarded for pain and suffering and loss of amenity, reflecting the severity and lasting psychological impact of the assaults. Aggravated damages of $50,000 were awarded, recognising the particularly egregious nature of the conduct in the context of a relationship of trust. Exemplary damages of $75,000 were awarded to mark the court's condemnation of the defendant's conduct and to deter similar behaviour. Economic loss was assessed as a buffer of $100,000, representing approximately $100 per week over the plaintiff's remaining working life.

Orders Made

  • Judgment for the plaintiff against the defendant in the sum of $490,091.05
  • The defendant to pay the plaintiff's costs of the proceedings
  • Leave to both parties to file and serve a notice of motion to vary the costs order within 21 days
  • Exhibits returned
  • The Judicial Registrar to refer the judgment and transcript to NSW Police for investigation and consideration of criminal prosecution of the defendant

Key Takeaways

  • The District Court confirmed that non-consensual sexual intercourse within marriage is actionable as a civil wrong in New South Wales following the abolition of the common law spousal immunity by the Married Persons (Equality of Status) Act 1996 (NSW).
  • Where a claim involves serious allegations equivalent to criminal conduct, the civil standard of proof remains the balance of probabilities, but the gravity of the allegations requires a correspondingly high level of satisfaction before the court is satisfied, consistent with Briginshaw v Briginshaw and s 140(2) of the Evidence Act 1995 (NSW).
  • Intentional torts involving non-consensual sexual intercourse fall outside the Civil Liability Act 2002 (NSW) by operation of s 3B, leaving aggravated and exemplary damages available to a successful plaintiff.
  • A plaintiff's delayed or progressive disclosure of sexual abuse does not automatically defeat a claim; the court accepted the plaintiff's pattern of disclosure as consistent with her PTSD diagnosis and the circumstances of the relationship.
  • Referral of civil proceedings to police for potential criminal investigation is an available step where the findings of a civil court disclose conduct that may constitute a criminal offence.

Legislation and Cases Referenced

Legislation
- Civil Liability Act 2002 (NSW), s 3B
- Crimes Act 1900 (NSW), s 61I
- Criminal Procedure Act 1986 (NSW), s 293A
- Evidence Act 1995 (NSW), s 140
- Married Persons (Equality of Status) Act 1996 (NSW), ss 4, 5

Cases
- Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454
- Best v Rosamond [2020] NSWCA 90
- Briginshaw v Briginshaw [1938] HCA 34
- Commonwealth of Australia v Smith [2005] NSWCA 478
- Fox v Percy (2003) HCA 22
- Luxton v Vines [1952] HCA 19
- Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66
- Palmer Bruyn v Parker Pty Ltd [2001] HCA 69
- R v R [1991] UKHL 12
- State of New South Wales v Gillett [2012] NSWCA 83
- Whitbread & Anor v Rail Corporation NSW & Ors [2011] NSWCA 130