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Supreme Court 24 November 2000

Droga v Coluzzi

[2000] NSWSC 1081

Assault & violence
ASSAULT AND BATTERY

Citation: Droga v Coluzzi [2000] NSWSC 1081
Court: Supreme Court of New South Wales, Common Law Division
Date: 24 November 2000
Judge(s): Master Harrison

Background

The plaintiff, a 53-year-old artist and sculptor, sued the defendant for damages arising from a serious physical assault that occurred on 23 January 1998. The plaintiff brought his claim through his sister as tutor, reflecting the severity of the cognitive and physical consequences he suffered from the incident. His causes of action included assault, battery, and trespass to the person.

The defendant denied liability and, in the alternative, argued he used no more force than was reasonably necessary. He also raised the defence of ex turpi causa non oritur actio, which is the principle that no legal action can arise out of the plaintiff's own illegal or disgraceful conduct. The defendant failed to appear at the hearing, his solicitor having previously filed a notice ceasing to act, and the matter proceeded in his absence.

A Mareva-style restraining order (an order preventing a party from dealing with or disposing of property pending the outcome of proceedings) had been in place over the defendant's real property since October 1998. That order remained in force pending entry of formal judgment.

  • Whether the defendant was liable in assault, battery, and trespass to the person arising from the January 1998 incident
  • Whether the ex turpi causa defence defeated the plaintiff's claim
  • The appropriate quantum of general damages, including compensation for pain and suffering, future economic loss, past and future care needs, and out-of-pocket expenses
  • Whether aggravated damages were warranted, given the nature of the defendant's conduct and his failure to apologise
  • Whether exemplary damages were available and, if so, in what amount
  • The appropriate handling of the existing property injunction upon entry of judgment

Decision

The court found the defendant liable for the assault. The ex turpi causa defence was rejected, the court being satisfied on the civil standard that the defendant's conduct was not excused by any illegality on the plaintiff's part.

On general damages, the court assessed the plaintiff's injuries as severe. The assault involved the plaintiff being punched multiple times and then kicked in the head while he was unconscious. The resulting injuries had a profound and lasting impact on his physical health and cognitive function, affecting his capacity to continue his work as an artist and sculptor and requiring ongoing care and assistance.

The court awarded $10,000 in aggravated damages. It found that being repeatedly punched and then kicked in the head while unconscious constituted a serious affront to the plaintiff's dignity and caused significant humiliation and insult. The court noted that these feelings were not captured within the general damages award, and that the defendant had made no attempt to apologise for his conduct.

Judgment was not formally entered at that stage because the restraining order over the defendant's property would dissolve upon entry of judgment. The court referred the matter to the duty judge to deal with the injunction and any consequential orders concerning the secured property, with the verdict moneys to be paid into court pending appointment of the Protective Commissioner.

Orders Made

  • The matter was referred to the duty judge on 4 December 2000 at 10:00 am to argue the dissolving of the injunction and any consequential orders.
  • The plaintiff's solicitor was directed to notify the defendant of that listing at his last known address by post.

(Note: Formal judgment in the sum of $341,592.25, plus costs, was proposed but not entered at the time of this judgment. Entry was deferred pending resolution of the injunction issue.)

Key Takeaways

  • The court awarded a total of $341,592.25 in damages, comprising general damages, interest, past and future care costs, future economic loss, out-of-pocket expenses, fund management costs, and aggravated damages.
  • Aggravated damages of $10,000 were awarded separately from general damages where the defendant's conduct, including kicking the plaintiff in the head while he was unconscious, caused humiliation and affront to personal dignity that general damages did not adequately capture.
  • The absence of any apology by the defendant was a relevant consideration in the aggravated damages assessment.
  • Where a Mareva-style injunction over the defendant's property was in place, formal entry of judgment was deferred to allow the court to address what would happen to the secured property upon the injunction's dissolution.
  • Verdict moneys were ordered to be paid into court pending appointment of the Protective Commissioner, reflecting the plaintiff's need for a tutor and the court's protective jurisdiction over vulnerable litigants.

Legislation and Cases Referenced

Cases cited:
- Helton v Allen (1939) 63 CLR 691
- Briginshaw v Briginshaw (1938) 60 CLR 336
- Medlin v State Government Insurance Commission (1995) 182 CLR 1
- Malec v J C Hutton (1990) 169 CLR 638
- Van Gervan v Fenton (1992) 175 CLR 327
- Sullivan v Gordon (1999) 47 NSWLR 319
- Grincellas v House (2000) 173 ALR 564
- The Nominal Defendant v Gardikiotis (1995-96) 186 CLR 49
- GIO v Rosniak [1992] 27 NSWLR 665
- Adam v Kennedy & Ors [2000] NSWCA 152
- Hunter Area Health Service v Marchlewski & Anor [2000] NSWCA 294
- Tan v Benkovic [2000] NSWCA 295
- Fontin v Katapodis (1962) 108 CLR 177
- Whitfield v De Laret & Co Limited (1920) 29 CLR 71
- Lamb v Cotogno (1987) 164 CLR 1
- Gray v Motor Accident Commission (1998) 196 CLR 1
- Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118
- R v Hoar (1981) 148 CLR 32

No specific legislation was cited in this decision.