Sexual Battery (Torts) Flashcards
Understand Sexual Battery In relation to Torts (13 cards)
Sexual battery is not necessarily separate from assault and battery.
The difference is limitation act defence.
1950 act → Court trying to let the cases fall out of the Limitations Act provision → because in both decisions were time barred
Does not sit right with principles of justice → sexually abused as minors → did not fit within time period → cases got thrown out → and that is against justice.
KM v HM →
IN NZ → exemplary damages → not compensatory. → ACA includes sexual abuse → does not have to be charged or capable of forming a criminal intent.
Sexual Battery:
Introduction
*Not really a separate tort from battery or assault
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*But have given rise to quite distinct limitation issues
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*See KM v HM: “incest constitutes an assault and battery”
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*But is only “a crude legal description of incest”
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*In NZ, the action would be for ED, not compensation – see A v M
KM v HM
*Facts:
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*P brought an action 11 years after the abuse stopped
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*Issue:
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*This gives rise to a limitation issue
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*Held: Under the Limitation Act, an action is no longer able to be brought once a certain time has passed. Note that previous legislation (1950 act) was quite restrictive in these cases (because of the nature of the abuse and the relatively short time frame to bring actions).
FACTS:
P brought action after 11 years of the Act.
Gave rise to limitations act issues →
Small time frame.
Sexual Battery:
Limitation Act 1950 (1)
Limitation Act 1950, s 4(7)
(7) An action in respect of the bodily injury to any person shall not be brought after the expiration of 2 years from the date on which the cause of action accrued
Provided that if the intended defendant does not consent, application may be made to the Court,…, for leave to bring such an action at any time within 6 years from the date on which the cause of action accrued;
and the Court may, if it thinks it is just to do so, grant leave accordingly, subject to such conditions (if any) as it thinks it is just to impose, where it considers that the delay in bringing the action was occasioned by mistake of fact or mistake of any matter of law other than the provisions of this subsection or by any other reasonable cause or that the intended defendant was not materially prejudiced in his defence or otherwise by the delay.
CANADIAN LImitations act
After 2 years → Cause of action for battery → the action starts when person is touched → For battery → this means cause of action occurs when it happens → minors are often not going to pursue after two years.
Can apply for leave → within six years → can grant leave
Sexual Battery:
Limitation Act 1950 (2)
Postponement of running of limitation period because of “disability” Limitation Act 1950, s 24
24 Extension of limitation period in case of disability
If, on the date when any right of action accrued for which a period of limitation is prescribed by or may be prescribed under this Act the person to whom it accrued was under a disability,—
(a) In the case of any action [ ] in respect of the death of or bodily injury to any person, …, the right of action shall be deemed to have accrued on the date when the person ceased to be under a disability or died, whichever event first occurred;
Section 2(2) For the purposes of this Act, a person shall be deemed to be under a disability while he is an infant or of unsound mind.
Many cases → where court tried to get around this
Section 24 → itnerpreted disability to be a minor.
Creative judging.
Sexual Battery:
Limitation Act 1950 (3)
Fraud And Mistake
28 Postponement of limitation period in case of fraud or mistake
Where, in the case of any action for which a period of limitation is prescribed by this Act, either—
(b) The right of action is concealed by the fraud of any such person as aforesaid; or …
the period of limitation shall not begin to run until the plaintiff has discovered the fraud or the mistake, as the case may be, or could with reasonable diligence have discovered it:
If there was grooming → it should not begin to run until discovered or reasonably discovered →
Sexual Battery:
Limitation Issues
*Trouble is that battery claims accrue when offensive contact occurs, as tort is actionable per se & damage not an ingredient
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*Assault tort similarly complete at the time the threats made. P also could not prove imminent danger.
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*Psychological problems & continuing fear part of the continuing damage from the tort, but is not a continuation of the assault itself
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*Courts tried to get around the limitation rules with creative interpretation
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*Justified by idea that these sorts of torts were not considered by the legislature when it drafted the Act
Issue occurs battery → when touching action starts.
Assault → when threat is made
S v G (1)
*Facts
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*Issue
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*Holding
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*Reasoning:
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*Cause of action accrues when all of its elements are subsisting
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*When cause of action accrues is question for CL
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*May turn to s 28 – fraudulent concealment of facts
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*Here the elements accrued when wrongful actions carried out
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*And then after 6 years have passed since she stopped being a minor (s 24)
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*In negligence, could use Canadian approach in KM v HM
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*That only when link between psychological harm and past abuse is reasonably discoverable is action accrued (applying a building negligence case – Hamlin)
COMMUNITY:
Community with rampant sexual abuse.
People lived in commune situation → and people sexually abused including children and plaintiff.
FACTS:
Limitation act issue.
Negligence trespass to person
Breach of fiduciary duty
From 14 years old till she was 16.
Wasn’t until October 1990 → that she came to recognise the psychological damage → that she linked the mental distress to the sexual assault.
When did the cause of action accure?
Limitation act → more than two years have elapsed
Can we bring it into the 6 years exception → first convicted of the crime → second → around evidence.
Grant leave unless → it was materially prejudice.
Culture within the commune → other people that were abusing these kids → hard to evidentially prove this →
Normally Coruts will try to bend the rules
But here because it would be so materially prejudice they declined it → limitation act barred.
REASONING:
Environment where the actual conduct occurred.
Prejudice to appellant → and that outweighs desirability.
*Doesn’t work for trespass to person where damage is not ingredient of action
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*But agreed that it was when reasonably discoverable that there was no consent (lack of consent is part of the action)
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*Here she reasonably knew everything about 3-5 years before bringing action
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*Outside 2 year limit
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*Should CA use discretion to bring her within 6 year limit?
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*Limitation defence will often receive little sympathy
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*But here was allowed – she could not bring action
Here it accrued when physical act occurred.
The reasonable discoverability test → the act isnt finished till you link the act with the harm → but the harm is not an element
So because of this there was an amendment.
Materially prejudice.
T v H
*Facts:
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*Victim argued that she was not time-barred as she was under long-term disability
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*This was fear of harm from abuser which only lifted once he died could she bring action.
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*Issue
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*Holding
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*Reasoning:
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*Here continuing fear of harm was not continued assault. It was continued damage.
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*But was not imminent harm, nor was it intentionally inflicted
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*She was thus time-barred by Law Reform Act (dealing with claims against deceased) was far before his death
Sexual Battery:
Limitation Act 2010 (1)
New Limitation Act 2010
New discretionary limitation period in physical & sexual abuse claims, s 17(6)
(6) The specified court or tribunal may, if it thinks it just to do so on an application made to it for the purpose, order that monetary relief may be granted in respect of the claim as if no defence under this Part applies to it.
CURRENT LIMITATION ACT
New Limitation period.
Sections of the act →
Pages 13 → to 16
Money claim → breach of contract, breach of tort → defence if the date is atleast six years from the date of act or omission.
If claimant has late knowledge of the claim → After late knowledge period extra three years.
Completely cannot be sued 15 years after.
Section 14 → late knowledge date →
Section 17 → abuse of a minor is an exception → abuse of claimaint under 18 years, wholly or partly sexual abuse → Court or Tribubal may state that there is no defence → can do it if they think it is just
Section 18 → matters to take into consideration→ hardship that would be caused, length of and reasons of delay, any effects of delay, defendants conduct after, etc.
Sexual Battery:
Limitation Act 2010 (2)
New Limitation Act 2010
18 Matters to be taken into account under section 17
In determining whether to make an order under section 17, the specified court or tribunal must take into account—
(a) any hardship that would be caused,—
(i) if the order were made, to … the defendant; and
(ii) if the order were not made, to A; and
(b) the length of, and reasons for, the delay on A’s part; and
(c) any effects or likely effects of the delay on—
(i) the defendant’s ability to defend the claim; and
(ii) the cogency of the evidence offered, or likely to be offered, by A or the defendant; and …
Sexual Battery:
Limitation Act 2010 (3)
New Limitation Act 2010
18 Matters to be taken into account under section 17
(d) the defendant’s conduct on and after the date of the act or omission on which the claim is based, including the extent to which the defendant responded to requests for information or inspection that were reasonably made by or on behalf of A in order to discover facts that were, or might be, relevant to the claim; and
(e) the extent to which prompt and reasonable steps were taken by or on behalf of A to make the claim after A became aware that A was entitled to do so; and
(f) any steps taken by or on behalf of A to obtain relevant medical, legal, or other expert advice, and the nature of any relevant expert advice received by or on behalf of A; and
(g) any other matters it considers relevant.
Sexual Battery:
Relationship between tort and criminal proceedings
*What about if the D has already been charged/convicted of crime?
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*In Daniels v Thompson the CA held that could not get ED from D who had already been convicted
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*When criminal prosecution likely, then stay of proceedings will be granted
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*Adequacy of criminal punishment not relevant
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*If D was acquitted, couldn’t get ED either
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*This was overruled in s 319(2)(a) of ACA for personal injury (including sexual abuse)
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*However, Daniels v Thompson still relevant for other torts
LIABILITY:
DANIELS V THOMPSON 1998:
FACTS:
Four sexual abuse victims sued for exemplary damages
Court held that where a person has been acquitted → exemplary damages cannot be awarded either
Theory invoked by the Court → Abuse of process, the criminal process has exonerated, cannot relitigate the same thing for exacting a punishment
Majority pursued it to its logical conclusion
Defence from Justice Thomas → a prior conviction should not be a complete bar, but it should be considered when considering awards if any. → if they had an acquittal, or put in prison could not proceed → because DOUBLE PUNISHMENT.
Legislature eventually overruled DANIELS v THOMPSON → ACA says you can seek exemplary damages
However RULE → damage other than personal injury → for example if prosected for deceit then civil claim arises → that will be barred.
SO only for personal injury → you can seek exemplary damages if there is an acquittal.
