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District Court 9 November 2015

Farjudi v Cheng

[2015] NSWDC 297

Assault & violence
PERSONAL INJURY INTENTIONAL TORT ASSAULT SELF DEFENCE PROPORTIONALITY OF RESPONSE

Citation: Farjudi v Cheng [2015] NSWDC 297
Court: District Court of New South Wales
Date: 9 November 2015
Judge: Sidis ADCJ

Background

The plaintiff and his wife were playing poker machines at the Parramatta Leagues Club on the evening of 15 September 2011. The defendant and his wife were seated nearby, and a dispute arose after the plaintiff's wife asked the defendant's group to lower the noise. When the plaintiff walked over to the area where his wife and the defendant had exchanged words, the defendant stood and struck the plaintiff in the face at least twice, pursuing him across the room.

The plaintiff sustained a facial fracture confirmed at Westmead Hospital and brought civil proceedings for damages arising from the assault. The defendant denied liability, asserting that he had acted in defence of his wife and arguing that any injuries suffered were not as serious or long-lasting as claimed. He had previously pleaded guilty to Assault Occasioning Actual Bodily Harm in criminal proceedings, receiving a 12-month good behaviour bond.

  • Whether the defendant's assault on the plaintiff was established on the evidence, including by reference to CCTV footage and still photographs
  • Whether the defendant's self-defence claim under sections 52 and 53 of the Civil Liability Act 2002 was made out, and whether any response was proportionate
  • Whether the defendant's criminal guilty plea gave rise to issue estoppel in the civil proceedings
  • The extent and cause of the plaintiff's psychological and physical injuries, and whether they were attributable to the assault
  • Whether aggravated or exemplary damages were appropriate, given the nature of the defendant's conduct and the adequacy of the criminal penalty

Decision

The assault and self-defence claim

The District Court found the assault clearly established. CCTV footage and photographic stills showed the defendant delivering at least two blows to the plaintiff's face. The court was satisfied that the plaintiff did not act as an aggressor and that his arm movements were defensive rather than offensive. The self-defence claim under the Civil Liability Act 2002 failed. Even accepting the defendant's account of events, the court found his response disproportionate and therefore not a reasonable act of defence of another person.

Issue estoppel and the guilty plea

The court considered whether the defendant's guilty plea in the criminal proceedings precluded him from denying liability in the civil matter. Although the court treated the guilty plea as relevant context, it did not need to resolve the issue estoppel question definitively, having independently found the assault proved on the civil evidence. The defendant's attempt to relitigate his justification in the civil forum was noted unfavourably.

Injuries and damages

The plaintiff sustained both physical and psychological injuries. The court accepted medical evidence of a significant psychological condition attributable to the assault and assessed general damages at $100,000. Past and future domestic assistance costs, and past and future out-of-pocket expenses, were also awarded, reflecting the ongoing nature of the plaintiff's disabilities.

Exemplary damages

The court held that exemplary damages were warranted. While the principle established in Gray v Motor Accidents Commission (1998) 196 CLR 1 is that a criminal conviction ordinarily addresses punishment and deterrence, the court found the 12-month good behaviour bond insufficient in the circumstances. The defendant's conduct during the civil proceedings, including advancing a justification he had not pressed in the criminal process, reinforced the appropriateness of an additional award. Exemplary damages were assessed at $10,000.

Orders Made

  • Verdict and judgment for the plaintiff in the sum of $210,927.
  • The defendant is to pay the plaintiff's costs of the proceedings, including costs arising from the notice of motion dated 6 November 2015, on an ordinary basis up to 13 April 2015 and on an indemnity costs basis thereafter.
  • Exhibits to be retained for 28 days.

Key Takeaways

  • The District Court confirmed that CCTV footage and photographic stills can be used to resolve conflicting oral evidence, but only where findings of fact are supported by the visual material rather than derived from speculation or conjecture alone, following Blacktown City Council v Hocking and Warren v Gittoes.
  • A self-defence claim under sections 52 and 53 of the Civil Liability Act 2002 requires that the response be reasonable and proportionate; a disproportionate use of force will defeat the defence even where some provocation existed.
  • Where a defendant has pleaded guilty to a criminal charge arising from the same incident, attempting to relitigate justification in subsequent civil proceedings may be viewed adversely when the court considers the appropriateness of exemplary damages.
  • The principle from Gray v Motor Accidents Commission (1998) 196 CLR 1 that a criminal conviction ordinarily satisfies punishment and deterrence is not absolute; a minimal criminal penalty may leave room for exemplary damages in civil proceedings.
  • Significant general damages for psychological injury following a single assault incident can be awarded where medical evidence supports the ongoing nature of the disability, with domestic assistance forming a substantial component of the overall award.

Legislation and Cases Referenced

Legislation
- Civil Liability Act 2002 (NSW), ss 52 and 53

Cases
- Blacktown City Council v Hocking [2008] NSWCA 144
- Warren v Gittoes [2009] NSWCA 24
- State of NSW v McMaster [2015] NSWCA 228
- Sangha v Baxter [2009] NSWCA 78
- Ashley v Chief Constable of Sussex Police [2008] 1 AC 962
- Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26
- Fontin v Katapodis [1962] HCA 63
- Underhill v Sherwell [1997] NSWCA 325
- Lamb v Cotogno (1997) 164 CLR 1
- Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118
- Hunter Area Health Service v Marchlewski [2000] NSWCA 294
- Whitford v De Lauret & Co Ltd (1920) 29 CLR 71
- Tilden v Gregg [2015] NSWCA 164
- Gray v Motor Accidents Commission [1998] HCA 70; 196 CLR 1