Jennings v Wilden  NSWCA 41 In the matter of Jennings v Wilden, the plaintiff, Ms Kirra Wilden, commenced court...Read More
In the recent matter of Coat v Aves (Pseudonyms)  NSWC 560, the plaintiff, Ms Coates (a pseudonym), the plaintiff filed proceedings against the defendant (Mr Aves a pseudonym), who is the plaintiff’s stepfather, in relation to person injuries sustained as a result of a single occasion of historical child sexual abuse (inappropriate sexual touching) when the plaintiff was a minor.
The defendant denied that the alleged sexual abuse had ever occurred. He argued that the plaintiff’s allegations are false, improbable, and are irreconcilable with objective facts. The defendant points to inconsistencies in the plaintiff’s case and argues that these necessarily represent obstacles to the success of the case the plaintiff seeks to make against him. The defendant also contested the plaintiff’s claims for damages, and raised questions of implausibility, exaggeration, and problems concerning causation of alleged harm. The defendant relies on some inconsistencies and oversimplistic factual assumptions inherent in the case the plaintiff seeks to make to argue that those matters necessarily cast significant doubt upon the veracity of the plaintiff’s claims.
… I consider there is a compelling case for the alternative conclusion that the plaintiff gave untrue evidence in the false belief that what she was saying was true.
In my view that conclusion arises because the plaintiff had become convinced of the truth of her “pieced together” account of the alleged events. Dr Brown has persuasively described the process whereby, through repeated recall and repeated recounting, false detail can become imperfectly placed into memory even though it has not come from an actual event.
The evidence in this case certainly establishes a threshold basis for considering the proposition that that the plaintiff has developed and has continued to harbour a false memory as the basis for her claim, despite her denial of that proposition…
In essence, the plaintiff’s first disclosure of the alleged abuse to a health care professional included a fundamental inconsistent element of inherent improbability as to her age, at around 8 years, when the alleged abuse was said to have occurred. Consequently, inherent improbability arises as the plaintiff’s mother and the defendant were not in a relationship at that time. Their domestic relationship commenced when the plaintiff was aged 9 years. That fact alone necessarily precludes the finding that the plaintiff seeks.
When that issue was raised in the evidence, the clarification attributed to the plaintiff, and the inferences the plaintiff sought from that evidence, resulted in a more broadly imprecise range of alternative ages of between 8 and 12, or 13 years being suggested as to when the alleged abuse occurred. That revised range of ages still incorporates a contaminating element of inherent improbability.
Ultimately, at  on 14 December 2023, the trial judge accepted the defendant’s evidence and found that the alleged sexual assault claimed by the plaintiff never happened and found that the plaintiff’s claim to the contrary is based on a false memory. The plaintiff’s claim against the defendant therefore failed to achieve success, both on the issue of primary liability, and on the issue of causation of damage.
The Court ordered that the plaintiff is to pay the defendant’s costs on the ordinary basis.
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