Gersbach v Gersbach [2018] NSWSC 1685

Gersbach v Gersbach [2018] NSWSC 1685

The court was not satisfied on the balance of probabilities that the plaintiff had established the alleged sexual or physical assaults by the defendant: her accounts were inconsistent, lacked corroboration, and critical claims were found to be based on false memories; the court preferred the evidence of the defendant, Ms O'Brien, and the siblings regarding physical discipline (found to be reasonable and not excessive). The plaintiff’s psychiatric condition (BPD) was not, on the evidence, necessarily or sufficiently linked to childhood sexual abuse. Accordingly, the plaintiff did not establish the causes of action relied upon.

Jurisdiction
Australia
Judgment Date
09 November 2018
Procedural Posture
Tort Personal Injury / Principal Judgment Final Orders
Outcome
Plaintiff's claim dismissed; judgment for the defendant.
Legal Topics
['intentional Torts' 'personal Injury' 'damages for Psychiatric Injury' 'child Abuse Limitation Periods' 'credibility Assessment' 'standard of Proof Briginshaw' 'aggravated and Exemplary Damages']
['torts' 'evidence' 'limitation of Actions'] ['intentional Torts' 'personal Injury' 'damages for Psychiatric Injury' 'child Abuse Limitation Periods' 'credibility Assessment' 'standard of Proof Briginshaw' 'aggravated and Exemplary Damages']

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Procedural Posture

Tort Personal Injury / Principal Judgment Final Orders

Legal Issues

  1. 1 ['Whether the plaintiff proved, on the balance of probabilities, that the defendant sexually and/or physically assaulted her as alleged' 'Whether the physical discipline administered by the defendant exceeded lawful correction' 'Whether the plaintiff’s psychiatric injury (BPD, bulimia) was caused by the alleged abuse' 'Whether the plaintiff’s recollections were reliable or the result of false memories']

Ratio Decidendi

The court was not satisfied on the balance of probabilities that the plaintiff had established the alleged sexual or physical assaults by the defendant: her accounts were inconsistent, lacked corroboration, and critical claims were found to be based on false memories; the court preferred the evidence of the defendant, Ms O'Brien, and the siblings regarding physical discipline (found to be reasonable and not excessive). The plaintiff’s psychiatric condition (BPD) was not, on the evidence, necessarily or sufficiently linked to childhood sexual abuse. Accordingly, the plaintiff did not establish the causes of action relied upon.

Court Disposition

Plaintiff's claim dismissed; judgment for the defendant.

Orders

  • ['Judgment for the defendant.' "Plaintiff to pay the defendant's costs."]