A v B [2021] NSWDC 491

A v B [2021] NSWDC 491

Taking into account all the evidence, including the seriousness of the allegation, the plaintiff did not discharge the onus of proving, to the civil standard, lack of consent to the sexual contact that occurred. The plaintiff's case relied on recollections of events nearly 50 years prior, and while she was an honest witness, the risk of reconstruction and embellishment after decades of repeated discussion and the post-incident conduct was significant. The evidence of the plaintiff's mother and Ms E as to the immediate aftermath cast doubt on the plaintiff's account. The court was not satisfied on the balance of probabilities that the defendant committed battery by non-consensual sexual...

Jurisdiction
Australia
Judgment Date
15 September 2021
Procedural Posture
Civil / Principal Judgment
Outcome
Judgment for the defendant against the plaintiff.
Legal Topics
['battery' 'personal Injury' 'psychiatric Injury' 'historic Sexual Assault' 'consent' 'standard of Proof']
['torts'] ['battery' 'personal Injury' 'psychiatric Injury' 'historic Sexual Assault' 'consent' 'standard of Proof']

Case Brief

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Procedural Posture

Civil / Principal Judgment

Legal Issues

  1. 1 ['Whether the plaintiff was subjected to battery by sexual assault by the defendant in 1972' 'Whether the plaintiff consented to the activity in question' "Whether the plaintiff's account should be accepted on the balance of probabilities" "Whether the defendant's conduct caused the plaintiff's psychiatric injury"]

Ratio Decidendi

Taking into account all the evidence, including the seriousness of the allegation, the plaintiff did not discharge the onus of proving, to the civil standard, lack of consent to the sexual contact that occurred. The plaintiff's case relied on recollections of events nearly 50 years prior, and while she was an honest witness, the risk of reconstruction and embellishment after decades of repeated discussion and the post-incident conduct was significant. The evidence of the plaintiff's mother and Ms E as to the immediate aftermath cast doubt on the plaintiff's account. The court was not satisfied on the balance of probabilities that the defendant committed battery by non-consensual sexual...

Court Disposition

Judgment for the defendant against the plaintiff.

Orders

  • ['Judgment for the defendant.' "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 to that in (2) above within 14 days.']