Citation: Elliott v Kotsopoulos [2009] NSWDC 164
Court: District Court of New South Wales
Date: 2 July 2009
Judge(s): Levy SC DCJ
Background
The plaintiff was a young Victorian woman working as a legal clerk and later as a recruitment consultant. She had been in a de facto relationship with the defendant, who operated a landscaping business. During the course of their relationship, the defendant's behaviour became increasingly erratic and violent, associated with heavy drinking.
Two separate incidents of physical violence formed the basis of the plaintiff's claim. In the first, in late March 2006, the defendant kicked the plaintiff hard in the lower back from behind, causing her to be thrown across a room. The injury initially appeared as bruising but later proved to be a traumatic pneumothorax (a collapsed lung), requiring hospitalisation and three painful drainage procedures over five days. The second and principal incident occurred on 8 and 9 June 2006 in Sydney, where the plaintiff was attending a work training seminar. The defendant had followed her to Sydney and, after she allowed him to visit in the hope of a reasonable conversation, carried out a sustained attack upon her.
The plaintiff obtained default judgment after the defendant failed to appear in the proceedings. The matter came before the court solely for the assessment of damages. The Civil Liability Act 2002 did not apply, as the proceedings involved intentional acts done with intent to cause injury under section 3B(1)(a) of that Act, meaning common law principles governed the assessment.
Legal Issues
- What quantum of general damages was appropriate for pain, suffering, cosmetic defects, and psychological harm arising from the assaults?
- How should past and future loss of earnings and earning capacity be assessed, given the impact of the injuries on the plaintiff's employment trajectory?
- What allowances should be made for past and future treatment expenses and out-of-pocket expenses?
- Were exemplary damages warranted, and if so, in what amount?
- Were aggravated damages separately warranted in addition to general damages, and was there a risk of double-counting?
- What rate of interest applied to the various past heads of damage?
Decision
The court accepted the plaintiff's evidence as truthful and accurate across both incidents. The defendant's conduct was characterised as cowardly and callous in the first incident, and the Sydney attack was treated as the principal event for which most heads of damage were assessed. Because the defendant did not appear, the plaintiff's evidence was uncontested.
General damages were assessed at $120,000. The court took into account the nature and severity of the physical injuries, the psychological consequences including post-traumatic symptoms, and the cosmetic impact upon a young woman who had previously undertaken modelling work and had a confident, outgoing personality.
On exemplary damages, the court found the defendant's conduct in the Sydney incident was of a sufficiently egregious and high-handed nature to justify an award of $30,000. The court noted that exemplary damages serve a punitive and deterrent function, distinct from compensation. The court also awarded $25,000 in aggravated damages, separately from general damages, taking care to avoid double-counting. The court reasoned that because general damages in this case covered multiple distinct categories (pain and suffering, cosmetic harm, and psychological injury), a separate aggravated damages sum was appropriate, unlike in cases where general damages are confined solely to pain and suffering. The court also indicated that, had it been required to assess exemplary damages for the first (March 2006) incident separately, it would have assessed that sum at $5,000.
Future loss of earning capacity ($49,200), future treatment expenses ($34,600), and superannuation losses (past and future combined at approximately $6,979) were also allowed, reflecting the long-term impact of the injuries on a plaintiff who had demonstrated strong employment prospects prior to the assaults.
Orders Made
- Verdict and judgment for the plaintiff in the sum of $324,549.
- The defendant is to pay the plaintiff's costs.
- Exhibits may be returned.
- Liberty to apply on 7 days' notice if further orders are required.
Key Takeaways
- The District Court confirmed that the Civil Liability Act 2002 does not apply to the assessment of damages for intentional torts committed with intent to cause injury (per section 3B(1)(a)), leaving common law principles to govern the entire damages exercise.
- Exemplary damages are available at common law for intentional torts where the defendant's conduct is sufficiently high-handed and egregious, serving punitive and deterrent purposes distinct from compensation. The court assessed these at $30,000 for the principal incident.
- Aggravated damages may be awarded separately from general damages even where general damages are substantial, provided the court guards against double-counting. Where general damages encompass several distinct categories of harm, a separate aggravated damages component is more readily justified.
- A plaintiff's pre-incident employment trajectory, personality, and broader life circumstances are relevant to assessing future loss of earning capacity, even where the precise trajectory of lost earnings cannot be calculated with precision.
- Default judgment does not end the court's scrutiny: a separate hearing for damages assessment is required, with the plaintiff bearing the onus of establishing each claimed head of loss through evidence.
Legislation and Cases Referenced
Legislation:
- Civil Liability Act 2002 (NSW), s 3B(1)(a)
Cases:
- Del Ponte v Del Ponte [1987] 11 NSWLR 498
- Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1
- State of NSW v Ibbett [2005] NSWCA 445
- State of NSW v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496
- Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118
- Varmedja v Varmedja [2008] NSWCA 177