Ms P v Mr D [2020] NSWSC 224

Supreme Court New South Wales

Medium Neutral Citation: Ms P v Mr D [2020] NSWSC 224 Hearing dates: 23-26 September 2019 Date of orders: 16 March 2020 Decision date: 16 March 2020 Jurisdiction: Common Law Before: Simpson AJ Decision: Judgment for the plaintiff in the amount of $853,550.

The defendant to pay the plaintiff's costs of the proceedings. Catchwords: TORTS – intentional torts of sexual assaults and physical assault – four counts of sexual assault admitted and others denied by defendant – standard of proof – s 140 Evidence Act 1995 (NSW) –Briginshaw standard – disputed torts proved on credibility of witnesses

EVIDENCE – tendency evidence – whether assaults the defendant admitted to should be allowed as tendency evidence to prove whether the disputed assaults occurred – notice requirement under s 97 of the Evidence Act 1995 (NSW) met – similarity of fact patterns between admitted and denied assaults – tendency evidence significantly probative for at least some of the disputed assaults – tendency evidence admitted for at least some of the disputed assaults but not necessary as court satisfied that the assaults occurred even absent tendency evidence

TORTS – Wilkinson v Downton claim – whether torts committed were calculated to cause physical, psychiatric or psychological harm – each assault was calculated to and did cause the defendant such harm – not satisfied that defendant's overall abusive and controlling behaviour aside from the assaults sufficient to satisfy the Wilkinson v Downton test - assaults sufficient to establish a Wilkinson v Downton claim even absent more general behaviour towards plaintiff