Citation: Crilly v Bumble Group Pty Limited t/a My Security [2012] NSWDC 3
Court: District Court of New South Wales
Date: 30 January 2012
Judge(s): Levy SC DCJ
Background
The plaintiff was a 22-year-old Irish tradesman working in Australia on a working visa at the time of the incident. He was in good health, employed in steel fabrication, and earning between $700 and $900 net per week. Shortly before 11pm on 20 December 2008, he was outside the Moore Park View Hotel in Waterloo, South Sydney, attempting to pull a companion away from a street altercation.
A security guard employed by the defendant, Bumble Group Pty Ltd trading as My Security, intervened in the altercation. The guard grabbed the plaintiff, who turned to see who had hold of him. The guard then punched the plaintiff on the lower jaw, causing him to fall and strike the back of his head on the concrete pavement. He lost consciousness immediately and was found vomiting heavily. The guard was subsequently convicted of assault occasioning actual bodily harm and sentenced to a suspended term of imprisonment.
The defendant did not file a defence, and default judgment on liability was entered in the plaintiff's favour. The proceedings before Levy SC DCJ were solely an assessment of damages. The defendant also failed to appear at the hearing.
Legal Issues
- Whether the plaintiff's damages should be assessed under common law principles rather than the more restrictive regime of the Civil Liability Act 2002, given the claim was framed in the intentional tort of assault
- The appropriate quantum of each head of damage, including general damages, past and future economic loss, future equipment needs, and out-of-pocket expenses
- Whether aggravated damages were available and, if so, in what amount
- Whether a late amendment to the statement of claim to plead aggravated damages could proceed consistently with procedural fairness obligations to the absent defendant
Decision
The court accepted the plaintiff's submission that, because the claim was primarily framed as an intentional tort (assault), damages should be assessed under common law principles rather than under the Civil Liability Act 2002. This approach followed the Court of Appeal's reasoning in Zorom Enterprises Pty Ltd v Zabow [2007] NSWCA 106.
On the procedural question of the late aggravated damages amendment, Levy SC DCJ adjourned the hearing and directed that the defendant be notified by courier and email of the proposed amendment and provided with copies of the evidence. The defendant chose not to appear when the hearing resumed, and the matter proceeded to judgment.
The medical evidence established that the plaintiff had suffered left frontal subdural and subarachnoid haemorrhages, parenchymal contusions, and intracranial bleeding. A later MRI confirmed post-traumatic gliosis (scarring) to the left anterior frontal lobe and changes to the temporal lobes, constituting permanent brain damage. The plaintiff also suffered persistent right-sided hearing loss and impaired balance. Levy SC DCJ noted that the plaintiff's own account of his disabilities was understated, and the court had regard to medical and allied assessments to properly characterise the extent of his ongoing impairments.
On aggravated damages, the court found that the security guard had acted with contumelious disregard for the plaintiff's rights, and that the plaintiff was an entirely innocent victim who had done nothing to provoke the assault. Relying on NSW v Ibbett [2006] HCA 57, the court awarded $20,000 in aggravated damages, taking care to fix a moderate amount to avoid overcompensating the plaintiff when general compensatory damages had already been assessed.
Orders Made
- Verdict and judgment for the plaintiff against the defendant in the sum of $356,759
- The defendant is to pay the plaintiff's costs of the proceedings on the ordinary basis, unless otherwise ordered
- The exhibits may be returned
- Liberty to apply on 7 days' notice if further orders are required
Key Takeaways
- The District Court confirmed that where a claim is framed in the intentional tort of assault, damages may be assessed under common law principles and are not confined to the regime established by the Civil Liability Act 2002, consistent with Zorom Enterprises v Zabow.
- Aggravated damages are available in intentional tort cases where the defendant's conduct showed contumelious disregard for the plaintiff's rights, but courts will exercise restraint in fixing the amount to avoid double-compensating the plaintiff when substantial general damages have also been awarded.
- Procedural fairness obligations applied even in undefended proceedings: the court adjourned and directed notification to the absent defendant before permitting the late pleading of aggravated damages.
- A default judgment on liability does not remove the need for a careful evidentiary assessment of each head of damage; medical evidence and third-party statements were scrutinised in detail to establish both the nature of the plaintiff's injuries and the extent of ongoing disability.
- Where a plaintiff's own evidence understates the severity of their disabilities, courts may rely on medical and allied health assessments to form an accurate picture of the impairments suffered.
Legislation and Cases Referenced
Legislation
- Civil Liability Act 2002 (NSW)
- Uniform Civil Procedure Rules 2005 (NSW), rr 30.1, 36.7(1)
Cases
- MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 657
- NSW v Ibbett [2006] HCA 57
- State of NSW v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536
- Zorom Enterprises Pty Ltd v Zabow & Ors [2007] NSWCA 106; (2007) 71 NSWLR 354