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District Court 17 March 2017

Wright v Bramley

[2017] NSWDC 45

Assault & violence
TORTS INTENTIONAL TORT OF ASSAULT DAMAGES

Citation: Wright v Bramley [2017] NSWDC 45
Court: District Court of New South Wales
Date: 17 March 2017
Judge: Judge Levy SC

Background

The plaintiff was a duty manager employed at the Brunswick Heads Hotel. The defendant was a patron who, on the evening of 21 February 2015, had consumed at least 20 schooners of beer since midday before approaching hotel staff to remonstrate about a decision to stop serving alcohol to guests at a 21st birthday function he was hosting for his son.

The plaintiff, acting in the course of his duties, engaged the defendant in conversation about the alcohol service decision. A violent altercation followed, during which the defendant punched the plaintiff in the face and the plaintiff was pushed, thrown or pulled to the ground. Other members of the defendant's party then joined the melee.

The plaintiff brought a common law action for damages for the intentional tort of assault. The defendant contested liability, arguing that the plaintiff had initiated physical contact and that his own response was lawful self-defence. The plaintiff had abandoned a separate claim for exemplary damages, noting that the defendant had already been dealt with in criminal proceedings, albeit by way of a s 10 order under the Crimes (Sentencing Procedure) Act 1999 rather than any substantial punishment.

  • Which party first made physical contact without consent, and in what manner?
  • Was the defendant's conduct a lawful act of self-defence, or did it constitute an actionable assault?
  • What damages, including aggravated damages, was the plaintiff entitled to recover?
  • Did the conduct of others during the fracas, or a separate incident on 21 February 2016, constitute a novus actus interveniens (an independent intervening act) that broke the causal chain and should reduce the plaintiff's damages?

Decision

Liability. After a detailed assessment of witness credibility and reliability, including evaluation of CCTV footage from two hotel security cameras, the court rejected the defendant's account of events. The court found that it was the defendant who had first made unauthorised physical contact with the plaintiff, and that the subsequent assault was perpetrated by the defendant rather than being a lawful act of self-defence. The defendant's credibility was significantly undermined by inconsistencies in his evidence and by his conduct following the incident, including the finding that his wife was evasive about his whereabouts when police attended.

Damages. The court assessed compensatory damages incorporating a component for aggravated damages. Aggravated damages were warranted in the circumstances, reflecting the nature of the defendant's conduct and its effect on the plaintiff. The court also assessed past and future economic loss, given that the plaintiff suffered PTSD and related psychological conditions that rendered him unfit for work in a hotel environment where he might be exposed to aggressive behaviour.

Novus actus interveniens. The defendant argued that blows struck by other people during the fracas, and a separate incident on 21 February 2016, should be treated as independent intervening events reducing his liability. The court rejected both arguments. The involvement of others in the fracas did not break the causal chain flowing from the defendant's assault. As for the 2016 incident, the court accepted expert evidence that the plaintiff was by then already "primed" for an adverse reaction due to the defendant's earlier assault: the 2016 event operated as a trigger, not a true independent cause. The plaintiff's decision to leave the hospitality industry in March 2016 remained a natural and probable consequence of the original assault.

Costs. The court awarded costs on the ordinary basis up to 19 September 2016 and on the indemnity basis thereafter, reflecting what appears to have been a relevant costs event, such as a Calderbank offer or an offer of compromise, at that date.

Orders Made

  • Verdict and judgment for the plaintiff in the sum of $231,509.70, inclusive of aggravated damages and interest.
  • The defendant is to pay the plaintiff's costs on the ordinary basis until 19 September 2016 and on the indemnity basis thereafter.
  • The exhibits may be returned.
  • Liberty to apply on 3 days' notice if further or other orders are required.

Key Takeaways

  • The District Court confirmed that the Civil Liability Act 2002 does not govern proceedings for intentional torts such as assault, except in relation to the calculation of interest on non-economic loss damages (ss 3B and 18).
  • Aggravated damages are available in intentional tort claims and may be awarded where the defendant's conduct and its impact on the plaintiff justify an additional compensatory component beyond general damages.
  • A plaintiff's abandonment of an exemplary damages claim, on the basis that the defendant has already faced criminal proceedings, does not preclude a claim for aggravated damages, even where the criminal outcome was a s 10 order involving no substantial punishment.
  • Where an original tortious act renders a plaintiff psychologically vulnerable, a subsequent triggering event does not necessarily constitute a novus actus interveniens: the court found that the defendant must accept the consequences of a plaintiff who was already "primed" for an adverse reaction as a result of the original assault.
  • Sufficient credibility concerns about a defendant's evidence, combined with CCTV footage and consistent lay witness accounts, can ground a finding against a self-defence claim even where the defendant asserts the plaintiff initiated contact.

Legislation and Cases Referenced

Legislation
- Civil Liability Act 2002 (NSW), ss 3B, 18
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10
- Evidence Act 1995 (NSW), ss 60, 136
- Limitation Act 1969 (NSW), s 52
- Property (Relationship) Act 1984 (NSW)

Cases
- Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
- Barton v Armstrong [1969] 2 NSWLR 451
- Bresatz v Przibilla (1962) 108 CLR 541
- Cheng v Farjudi [2016] NSWCA 316
- Gray v Motor Accidents Commission (1998) 196 CLR 1
- Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522
- Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
- Medlin v State Government Insurance Commission (1995) 182 CLR 1
- Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327
- State of NSW v McMaster [2015] NSWCA 228
- State of NSW v Moss (2000) 54 NSWLR 536
- Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28