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District Court 3 September 2010

Hadaway v Robinson & Ors

[2010] NSWDC 188

Assault & violence
TORTS ASSAULT AND BATTERY DAMAGES DUAL DAMAGES ASSESSMENTS JURISDICTION FOR DAMAGES AWARD

Citation: Hadaway v Robinson & Ors [2010] NSWDC 188
Court: District Court of New South Wales
Date: 3 September 2010
Judge(s): Levy SC DCJ

Background

The plaintiff, a 44-year-old tradesman in the building industry, was assaulted outside the Hoey Moey Hotel at Coffs Harbour on the evening of 17 September 2004. He alleged that the first defendant, a man trained in martial arts, had confronted him on two occasions inside the hotel earlier that afternoon before following him outside and attacking him. The plaintiff suffered significant injuries and had not returned to his pre-injury work by the time of trial.

The plaintiff sued the assailant directly in assault and battery, seeking compensatory, exemplary, and aggravated damages assessed at common law. He also sued the hotel management company (the second defendant) and the hotel licensee and manager (the third defendant), alleging they had breached a duty of care owed to him in respect of events occurring inside the premises before the assault took place. Those claims were assessed under the Civil Liability Act 2002.

The second and third defendants filed a cross-claim against the first defendant, seeking contribution for any damages for which they were found liable.

  • Whether the first defendant was liable in assault and battery for the attack on the plaintiff outside the hotel
  • Whether the hotel management company and licensee owed the plaintiff a duty of care in respect of events occurring on the premises prior to the assault
  • Whether that duty was breached, and whether any breach was a material contributing cause of the plaintiff's injuries
  • Whether the plaintiff was contributorily negligent
  • How damages should be assessed across multiple heads, including whether exemplary and aggravated damages were available against the first defendant
  • How liability should be apportioned between the defendants, and the extent of contribution owed on the cross-claim
  • Whether the District Court had jurisdiction to enter judgment exceeding the ordinary cap of $750,000, given the plaintiff's damages exceeded that limit

Decision

The court found that the first defendant had unlawfully assaulted and battered the plaintiff as alleged. This finding was reached after extensive credit analysis involving numerous witnesses across a trial that ran for approximately thirteen hearing days. The court accepted the plaintiff's account of the assault and the events leading up to it.

On the negligence claims, the court found that the second and third defendants had breached their duty of care to the plaintiff in relation to events within the hotel before he left the premises. That breach was found to be a material contributing cause of the injuries the plaintiff subsequently suffered outside. The court's reasoning engaged with the principles governing the liability of occupiers and licensees for harm connected to the conduct of third parties on or near their premises, drawing on a substantial body of High Court and Court of Appeal authority.

Contributory negligence was raised but, on the evidence, the court's findings resulted in damages being assessed without any reduction for contributory negligence defeating the plaintiff's recovery. The court apportioned liability between the defendants, finding the second and third defendants were entitled to 70 per cent contribution from the first defendant on the cross-claim.

Damages against the first defendant were assessed at common law and included awards of exemplary and aggravated damages, reflecting the deliberate and wrongful nature of the assault. Damages against the second and third defendants were assessed under the Civil Liability Act 2002 framework and did not include exemplary or aggravated components. The court applied the extended jurisdiction available under section 51(4) of the District Court Act 1973, which permitted judgment up to 50 per cent above the $750,000 cap, in circumstances where the first defendant had not objected to that course.

Orders Made

  • Verdict and judgment for the plaintiff against the first defendant in the sum of $1,161,368
  • Verdict and judgment for the plaintiff against the second defendant in the sum of $922,394
  • Verdict and judgment for the plaintiff against the third defendant in the sum of $922,394
  • Verdict and judgment for the cross-claimants against the cross-defendant (the first defendant) in the sum of $645,675
  • The defendants to pay the plaintiff's costs on the ordinary basis unless otherwise ordered
  • The cross-defendant to pay the costs of the cross-claimants on the ordinary basis unless otherwise ordered
  • Exhibits may be returned
  • Liberty to apply on 7 days' notice if further orders are required

Key Takeaways

  • The District Court confirmed that a hotel management company and licensee can be found liable in negligence for harm suffered by a patron outside the premises, where a breach of duty relating to events inside the hotel materially contributed to that harm.
  • Exemplary and aggravated damages remain available at common law for intentional torts such as assault and battery, but the Civil Liability Act 2002 framework governs damages assessed against defendants whose liability sounds in negligence rather than intentional tort.
  • Where multiple defendants are liable for the same damage, contribution between them is available, and the court apportioned 70 per cent of the second and third defendants' liability back to the assailant on the cross-claim.
  • Under section 51(4) of the District Court Act 1973, the District Court may exercise extended jurisdiction to enter judgment up to 50 per cent above the ordinary jurisdictional cap, provided the relevant defendant does not object within the prescribed period.
  • Extensive credit findings were necessary where liability turned substantially on competing witness accounts of events both inside and outside licensed premises, illustrating the significance of the fact-finding exercise in multi-party assault and negligence cases.

Legislation and Cases Referenced

Legislation
- Civil Liability Act 2002 (NSW)
- District Court Act 1973 (NSW), s 51(4)
- Employees Liability Act 1991 (NSW)

Cases
- Adeels Palace Pty Ltd v Moubarak [2009] HCA 48
- Angel v Hawkesbury City Council [2008] NSWCA 130
- Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538
- CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47
- Golden Eagle International Trading Pty Ltd v Zhang (2007) 229 CLR 498
- Lamb v Cotogno (1987) 164 CLR 1
- MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 567
- March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 50
- Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254
- Portelli v Tabriski Pty Limited & Ors [2009] NSWCA 17
- Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd [2009] NSWCA 263
- State of NSW v Ibbett [2005] NSWCA 445
- State of NSW v Moss [2000] NSWCA 133
- State of NSW v Riley [2003] NSWCA 208
- Sretenovic v Reed [2009] NSWDC 280
- Strinic v Singh [2009] NSWCA 15
- Uren v John Fairfax & Sons Pty Ltd
- Vairy v Wyong Shire Council (2005) 223 CLR 442
- Waverley Council v Ferreira [2005] NSWCA 418
- Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485