"AM" v KW" [2005] NSWSC 876

New South Wales Supreme Court

"AM" v KW" [2005] NSWSC 876 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 27 & 28 July 2005, 1 August 2005

JUDGMENT DATE : 5 September 2005

JURISDICTION : Common Law Division

JUDGMENT OF : Associate Justice Harrison

DECISION : (1) Enter a verdict and judgment in favour of the plaintiff in the sum of $444,745.09; (2) The defendant is to pay the plaintiff's costs as agreed or assessed.

CATCHWORDS : Sexual assaults

LEGISLATION CITED : Limitation Act 1969 (NSW)

Paten v Bale (1999) 135 QLDSC 36 CASES CITED : State of NSW v Moss [2000] NSWCA 133

"AM" (Plaintiff) PARTIES : "KW" (Defendant)

FILE NUMBER(S) : SC 20216/2003

Mr T J Morahan COUNSEL : (Plaintiff)

Mr A R Conolly, A R Conolly & Co (Plaintiff) SOLICITORS : "KW" (Defendant in person)

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

MONDAY, 5 SEPTEMBER 2005

20216/2003 - "AM" v "KW" (No 2)

JUDGMENT (Sexual assaults) 1 HER HONOUR: The plaintiff claims that he suffers psychological injuries from sexual assaults which he alleges were perpetrated upon him by the defendant when he was entrusted in the care of the defendant in his capacity as a babysitter. 2 The defendant appeared without legal representation throughout the trial. At the outset of this trial the defendant had the benefit of some legal advice and his Counsel applied for an adjournment. The adjournment was refused – see separate reasons. 3 The plaintiff was born on 11 August 1982 and is currently 23 years of age. The statement of claim pleads that the defendant committed a number of sexual assaults. The assaults are alleged to have been committed on the plaintiff over a period of approximately four years between 1988 and/or about 1992 when he was aged between six and ten years. 4 The plaintiff, his sister Michelle, his father Phillip and grandmother Edna all gave evidence. The plaintiff's grandmother Edna is 88 years of age and had very little recall of the events that were alleged to have taken place years ago. Other than to confirm that she and the defendant had been friends, I formed the view that her memory of other events was unreliable. 5 It was common ground between all witnesses that during a period of between two to six years KW babysat AM. AM gave evidence that he was five or six when he started to be babysat by KW at KW's house [t 16.14-16]. KW babysat him three or four times a year for a period of just over two years [t 16.44-50]. He would usually stay overnight [t 16.23-25]. KW recollected that he had babysat AM two to three times a year over a period of two to three years therefore between four and nine times [t 83.14-49]. The plaintiff's father PM gave evidence that KW babysat the plaintiff between three and six times a year for four to six years [t 48.46-55]. KW had on the first occasion volunteered to babysit AM [t 49.04-06]. KW would usually babysit AM overnight as his (AM's) parents preferred not to expose his asthma to the cold of night [t 49.06-08]. The plaintiff suffered from episodic asthma during these years and was taking medication and occasionally had to use a nebuliser (see clinical notes of Dr Sandra Grass)