J v J

• Jurisdiction: New Zealand
• Judge: Stevens J
• Judgment Date: 09 September 2014
• Neutral Citation: [2014] NZCA 445
• Docket Number: CA475/2013
• Court: Court of Appeal
• Date: 09 September 2014

Between

J

Appellant

and

J

Respondent

[2014] NZCA 445

Court:

Randerson, Stevens J, White J

CA475/2013

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal from a High Court (“HC”) decision that held the appellant had sexually abused the respondent; the abuse had constituted a breach of the appellant's fiduciary obligation to the respondent; the abuse constituted assault and battery of the respondent and that neither of the two causes of action were time — barred under the Limitation Act 1950 (“LA”) — exemplary damages of $75,000 were awarded to the respondent — cross-appeal by the respondent against name suppression — parties were relatives, respondent was the appellant's uncle — respondent was 20 years older that the appellant — alleged offending occurred in the late 1970s when the respondent was aged between six and eight years old — whether the respondent was under a disability arising from unsoundness of mind for the purposes of s24 LA (extension of limitation period in case of disability) — whether the HC erred in assessing the respondent's credibility based on the manner in which the respondent gave her evidence — whether expert evidence was not substantially helpful in terms of s25(1) Evidence Act 2006 (admissibility of expert opinion evidence — substantial help) — whether a fiduciary relationship existed — whether the award of damages was excessive — whether the appellant should be granted permanent name suppression.

Counsel:

G H Nation, J W A Johnson and S M K Hoffman for Appellant

A C M Fisher QC and Z A Matheson for Respondent

• A The appeal is dismissed.

• B The cross-appeal is dismissed.

• C An order is made prohibiting publication of the names, addresses, occupations or identifying particulars of the parties to this proceeding.

• D The appellant must pay the respondent costs for a complex appeal on a band B basis and usual disbursements. We certify for second counsel.

• E This case may be cited as Jay v Jay.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Stevens J)

Table of Contents	Para No
Introduction	[1]
Factual background	[6]
First and second grounds of appeal – proof of the allegations	[15]
First ground of appeal – Chisholm J's factual assessment	[16]
Assessment of evidence – appellant's submissions	[20]
Factual findings – our evaluation	[22]
Second ground of appeal – Dr Blackwell's evidence	[30]
Content of the evidence	[33]
Specific challenges	[37]
Specific challenges – our evaluation	[43]
Third ground of appeal – breach of fiduciary duty	[61]
Fourth ground of appeal – limitation	[71]
Accrual of assault and battery cause of action	[73]
Appellant's submissions	[76]
Analysis	[77]
Disability	[81]
Appellant's submissions	[84]
Analysis	[86]
Fifth ground of appeal – damages	[102]
Analysis	[104]
Sixth ground of appeal – declaration under Declaratory
Judgments Act 1908	[112]
Cross-appeal – name suppression	[116]
Result	[125]
Costs	[128]

Introduction

1 The respondent alleges that during the late 1970s when she was a child aged between six and eight years she was sexually abused by the appellant, a close family member. He is some 20 years older than the respondent and denies the allegations. The proceeding containing the allegations was filed in the High Court in December 2010. Two causes of action were relied upon: assault and battery and breach of fiduciary obligation.

2 The judgment of Chisholm J determined: 1

• (a) the appellant had sexually abused the respondent;

• (b) the abuse constituted a breach of the appellant's fiduciary obligation to the respondent;

• (c) the abuse constituted assault and battery of the respondent;

• (d) neither of the two causes of action were time-barred under the Limitation Act 1950 (the 1950 Act); and

• (e) exemplary damages of $75,000 should be awarded to the respondent.

3 The limitation issue required a determination as to the accrual of the relevant cause of action and whether the respondent was under a disability arising from unsoundness of mind for the purposes of s 24 of the 1950 Act. The Judge found that the cause of action did not accrue until the respondent received counselling between November 2005 and March 2006. She remained under a disability until she first issued proceedings in November 2009.

4 Chisholm J also found that, if the limitation issues had rendered an alternative remedy of declaration necessary, he would have held the 1950 Act does not preclude a declaration of the nature sought by the respondent and further that such a declaration would have been appropriate.

5 All of the above findings are challenged on appeal. In addition to the substantive appeal there is a dispute as to the continuation of interim name suppression ordered in a decision of Associate Judge Osborne on 30 November 2011. 2 This order was continued on the front page of the High Court judgment, although the judgment contains no discussion of the issue. The respondent cross-appeals against the continuation of interim name suppression, seeking a discharge of the initial order. The appellant seeks permanent name suppression, regardless of the outcome of his appeal. For the reasons given later, we make an

order for permanent name suppression. To protect the parties' privacy, we do not name them in this judgment

Factual background

6 While the main allegations are contested, the broader factual background is not in dispute. The following summary draws on the facts conveniently set out in the High Court judgment. 3

7 The respondent was born in 1971 and is 43 years of age. The appellant is now 64 years of age. The respondent's father was involved in a family business. The appellant was also involved in the business in a senior management role.

8 The abuse was alleged to have occurred during a period in which the appellant was between 25 and 27 years of age and living with his mother (the respondent's grandmother). The respondent alleges the appellant sexually abused her during the Easter holidays and Christmas holidays between 1 January 1977 and 8 July 1980. The appellant and his mother lived in a town where other members of the respondent's family also resided. The respondent regularly visited such family members, staying with another relative who lived a short distance away.

9 The particulars of the alleged abuse concern four occasions, all falling around Easter or Christmas time, when the appellant invited or encouraged the respondent to come into his room, with the promise of a reward of money. When in his bedroom, the appellant is said to have touched the respondent on the genital area, digitally penetrating her and causing pain. He is also said to have coerced the respondent to touch his penis and to masturbate him. The appellant denies these events occurred.

10 In 1980 the respondent moved to a different city with her family. When she was 14, she told her parents the appellant had sexually abused her. Her parents did not believe her. She again told her parents about the abuse when she was 16. This time her parents took it more seriously, but her father intimated they could not do anything about it because it would “kill” her grandmother, the appellant's mother.

As the respondent grew up, her personal life fell into disarray; she experienced alcohol abuse and unsatisfactory relationships with men. She spent time living in England, marrying there in February 2001 but subsequently divorced in October 2001. Her daughter was born shortly thereafter, in May 2002. Custody proceedings began in mid-2003.

11 The respondent has experienced recurrent major depressive disorder throughout her life. She saw a counsellor in England in 2005. She returned to New Zealand on several occasions. During some of those visits, she confronted the appellant by telephone. Following the resolution of custody issues pertaining to her daughter, she returned to New Zealand permanently in September 2007. Before Christmas, she saw a lawyer with her father and took legal advice about the prospect of issuing proceedings against the appellant. In March 2008, she lodged a claim with the Accident Compensation Corporation (ACC) for the cost of treatment in respect of mental health injury resulting from the sexual abuse. In April 2008, the respondent took an overdose in an apparent suicide attempt.

12 Despite her mental health issues, the respondent was able to consult a lawyer again in July 2008. Her lawyer then wrote to the appellant enclosing a statement of claim alleging he had sexually abused the respondent and informing the appellant exemplary damages would be sought. This was not filed. In September/October 2008, the respondent returned briefly to England with her daughter. In October, she took a further overdose. In November 2008 a meeting was proposed with the appellant, but the respondent was unable to face up to it and it did not take place.

13 In September 2009, her lawyer again wrote to the appellant's lawyer explaining that the respondent had been unwell and was on antidepressant medication, but now felt able to face the appellant and pursue her claim. In October and November 2009 the respondent had four sessions with a psychotherapist through ACC to attempt to address and treat her mental health issues. A proceeding alleging the sexual abuse was issued in the District Court on 19 November 2009. This was discontinued and re-issued in the High Court on 23 December 2010.

14 Against this background the appellant challenges the evidence relied upon to establish the respondent's allegations. He challenges the establishment of the causes of action in respect of both assault and...