Strike II: Acquitted criminally but liable to pay damages for assault

19 December 2022
Warning: This article contains details about sexual assault, abuse and domestic violence which may be upsetting for some readers. Reader discretion is advised.

The Queensland Supreme Court awarded damages to a plaintiff where the defendant had previously been acquitted of criminal charges for the same incident.

In issue

  • The Queensland Supreme Court had to consider whether, on the balance of probabilities, a home invasion and subsequent assault occurred and had been perpetrated by the defendant on 10 December 2013 against his wife (from whom he had recently separated), the plaintiff. The defendant had previously been acquitted of criminal charges in relation to the alleged incident.

The background

The plaintiff sought damages in respect of an assault upon her by the defendant. At the time of the alleged assault, the plaintiff and defendant were married but had recently separated. The plaintiff claimed that the assault took place early on the morning of 10 December 2013 when the defendant, broke into her home while she was sleeping and physically and sexually assaulted her. The plaintiff alleged that the relationship was marred with various instances of domestic violence. On 9 December 2013, the day prior to the assault, during a handover of the children the plaintiff alleged that the defendant became enraged about financial matters such as school fees and followed her back to her car, and threatened that he had hired someone to rape and sodomise her.

The plaintiff gave evidence that in the early hours of 10 December 2013, a masked man broke into her home and physically and sexually assaulted her. During the assault she noticed the mannerisms of the assailant were the same as those of the defendant. She gave evidence that she was able to identify the assailant as the defendant when he mentioned members of her family and when he later removed his mask. The plaintiff subsequently served proceedings seeking damages for the injuries she sustained during the assault. The defendant denied that he was ever physically abusive to the plaintiff. Their son partially corroborated the allegations of the plaintiff both in his initial statement to police and in evidence to the court.

The decision at trial

The court noted that the plaintiff bore the onus of proving the material facts required to establish the elements of her cause of action to the reasonable satisfaction of the court: in other words, on the balance of probabilities, even though the facts alleged amounted to the commission of a crime.

The court applied the principle established by the High Court in Briginshaw v Briginshaw that when considering allegations of serious misconduct in civil proceedings a 'court must feel an actual persuasion of the occurrence or existence of a fact before that fact can be found'1 and that the question whether a fact has been proved to the reasonable satisfaction of the court will be affected by the seriousness of the allegation made, the inherent unlikelihood of the occurrence or the gravity of the consequences flowing from a particular finding. Having outlined the required standard of proof, the court accepted the evidence of prior domestic abuse perpetrated by the defendant. The court also accepted that the threat was made by the defendant, the attack occurred as alleged and the assailant was the defendant. The acceptance of this evidence, coupled with the DNA evidence, led the court to find the defendant liable to the plaintiff for the tort of battery (not assault, for which no physical contact is required, only the creation of an imminent fear of unlawful conduct).

The court awarded total damages in the sum of $967,113.40. Notably the damages included an award of $50,000 for aggravated damages and a further $50,000 for exemplary damages. The plaintiff claimed damages for gratuitous care. The court observed that a significant component of that claim was for emotional assistance and that it was not settled whether that form of support could be characterised as gratuitous services for the purpose of s 59 of the CL Act. However, the court decided to follow an earlier decision of the NSW Court of Appeal2 that in the case of a psychological injury the gratuitous services for which damages can be awarded can include assistance in the form of emotional support where that support is necessary and appropriate to relieve the effects of the psychological injury. After reviewing the evidence of the 2 care givers plus a medical expert, the court concluded that the gratuitous care provided met the requirements of s 59 CL Act because emotional support was medically therapeutic for the plaintiff and avoided the need for additional professional care services.

Implications for you

The decision is significant because it is an example of the application of the Briginshaw principle - the standard of care is to be assessed more carefully and stringently in a civil matter involving allegations of criminal conduct. In this case, the higher standard of proof was met by the particular evidence tendered, and the defendant was found liable to the plaintiff for the tort of battery. The damages awarded included amounts for both aggravated and exemplary damages, for which there was no statutory preclusion because the act that caused the personal injury was an unlawful intentional act done with intent to cause personal injury. Despite the gratuitous care provided to the plaintiff mainly taking the form of emotional support (instead of domestic assistance), damages were awarded because in the court’s view it was necessary and appropriate to relieve the effects of the injury.

1Briginshaw v Briginshaw (1938) 60 CLE 336 at [361-362]
2Pel-Air Aviation Pty Ltd v Casey (2017) 93 NSWLR 438.

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