Citation: Ruzica Varmedja v Svetozar Ved Varmedja [2007] NSWDC 385
Court: District Court of New South Wales
Date: 30 April 2007
Judge(s): Walmsley SC DCJ
Background
The plaintiff was a Serbian-born woman who had married the defendant, an elderly Serbian-Australian man, in Serbia in July 2000. She joined him in Australia in January 2001, living on his isolated farm near Orange, New South Wales. She spoke little English, had no relatives in Australia, and was entirely dependent on the defendant socially and practically.
The plaintiff alleged that from approximately April 2001, following the defendant's use of Viagra, the relationship became one of sustained physical and sexual violence. She described repeated forced vaginal, anal, and oral intercourse accompanied by threats of death and deportation, beatings with objects including a stick, a curtain rod, and a shotgun, and other degrading conduct. The defendant threatened to have her killed, threw lit matches at her, cut off her hair, and on the final day of cohabitation, attempted to strangle her. She left on 21 September 2002 and went to a women's refuge.
The defendant denied the plaintiff's account. The court was required to assess the credibility of each party and determine whether the plaintiff's claims were proven on the balance of probabilities.
Legal Issues
- Whether the plaintiff's claims in assault and battery were established on the evidence, applying the Briginshaw v Briginshaw standard for serious allegations
- Whether the limitation period under the Limitation Act 1969 barred any of the causes of action
- Whether it was necessary to make a separate damages award for each individual act of assault, or whether a global lump sum was an appropriate method of assessment
- Whether aggravated damages were available and justified on the facts
- Whether exemplary damages were available and justified on the facts
Decision
The court accepted the plaintiff's evidence and rejected that of the defendant. Applying the Briginshaw principle, which requires that the strength of evidence be proportionate to the gravity of the allegation, the court was satisfied on the balance of probabilities that the sexual and physical assaults occurred as described. The defendant's evidence was found to lack credibility.
On the limitation question, the court considered whether the causes of action arising from earlier incidents were time-barred. The court's reasoning, drawing on the principles in Brisbane South Regional Health Authority v Taylor and related authority, ultimately permitted the plaintiff to proceed with her claims.
On the question of how to quantify damages across a large number of discrete assaults, the court held that it was not necessary to itemise each individual act. A global lump sum was an appropriate and practical method of assessment where the conduct formed a continuing course of serious abuse. The court awarded $150,000 in general compensatory damages.
The court also awarded aggravated damages of $25,000, finding that the defendant's conduct went beyond ordinary human fallibility. Exemplary damages of $50,000 were additionally awarded on the basis that the defendant's conduct amounted to conscious wrongdoing in contumelious disregard of the plaintiff's rights, and that a compensatory award alone did not sufficiently express the court's disapproval. The court noted that exemplary damages are exceptional but found this case warranted them.
Orders Made
- General (compensatory) damages: $150,000
- Aggravated damages: $25,000
- Exemplary damages: $50,000
- Past out-of-pocket expenses: $3,791.55
- Future out-of-pocket expenses: $4,000
- Total: $232,791.55
- Interest to be calculated by the parties and added to the order
- Costs to be addressed separately
Key Takeaways
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The District Court confirmed that where a plaintiff has suffered a large number of separate assaults and batteries forming part of a continuous course of conduct, a global lump sum is an appropriate method of damages assessment rather than a separate award for each individual act.
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Aggravated damages are available in tort claims arising from marital violence where the defendant's conduct goes beyond ordinary human fallibility. The court awarded $25,000 on that basis.
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Exemplary damages, while exceptional, may be awarded where compensatory damages alone do not sufficiently express the court's disapproval of the defendant's conduct. The court characterised the defendant's behaviour as conscious wrongdoing in contumelious disregard of another's rights, warranting a $50,000 exemplary award.
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The Briginshaw standard applies to serious civil allegations of sexual and physical assault: the evidence must carry sufficient weight having regard to the gravity of the conduct alleged, though the civil standard of balance of probabilities is not elevated.
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Isolation, language barriers, and a plaintiff's dependence on the defendant were relevant contextual factors in assessing the nature and effect of the abuse, including for the purposes of aggravated and exemplary damages.
Legislation and Cases Referenced
Legislation:
- Limitation Act 1969 (NSW)
- Crimes Act 1900 (NSW)
- Civil Liability Act 2002 (NSW)
- Evidence Act 1995 (NSW)
- Family Law Act 1975 (Cth)
- Family Provision Act 1982 (NSW)
- Legal Profession Act 1987 (NSW)
- Motor Accidents Compensation Act 1999 (NSW)
- Criminal Injuries Compensation Act 1983 (ACT)
Cases:
- Briginshaw v Briginshaw (1938) 60 CLR 336
- Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
- Lamb v Cotogno (1987) 164 CLR 1
- New South Wales v Ibbett (2006) 229 CLR 638
- Whitfield v De Lauret and Co Limited (1920) 29 CLR 71
- State of New South Wales v Riley [2003] NSWCA 208
- Cetojevic v Cetojevic [2006] NSWSC 431
- Rejfek v McElroy (1965) 112 CLR 517
- Nowlan v Marson Transport Pty Limited (2001) 53 NSWLR 116
- Gianoutsis v Glykis [2006] NSWCCA 137
- In the Marriage of C Kennon and D Kennon (1997) 22 FLR 1
- A v M [1991] 2 NZLR 228
- Wainwright v Home Office [2003] UKHL 53
- De Winter v Johnston (unreported, Court of Appeal, 23 August 1995)
- South-West Area Health Service v Gabrielle [2001] NSWCA 477