Citation: Davis v Viglianti [2017] NSWDC 452
Court: District Court of New South Wales
Date: 15 December 2017
Judge(s): Gibson DCJ
Background
In the early hours of 28 June 2013, a group of police officers attended the defendant's home at approximately 2:00am. They were responding to concerns that the defendant, who had breached an apprehended violence order by sending a text message to his former partner containing apparent references to self-harm, might be in danger. On arrival, officers could see a light on inside the premises and what appeared to be a cord or rope hanging from a ceiling beam, which heightened their concern.
The plaintiff, a probationary constable of around six months' experience, volunteered to climb a ladder to look through an open window after the supervising sergeant was unable to maintain a steady footing. Standing on his tiptoes at the top of the ladder, the plaintiff placed his open hand on the window sill to steady himself. He came into contact with a series of razor blades that had been embedded in the sill using Blu-Tack. His injuries were serious enough to require immediate transport to hospital and surgery.
The plaintiff brought proceedings against the defendant in battery (and in the alternative, negligence), claiming that the defendant had intentionally or recklessly set a trap by embedding razor blades in the window sill in circumstances where police attendance was foreseeable.
Legal Issues
- Whether the defendant's act of embedding razor blades in the window sill constituted a battery in law, either as an intentional infliction of harm by trap or as reckless indifference to the foreseeable risk of injury to persons seeking access to the premises.
- Whether the plaintiff, as a police officer climbing a ladder to look through a window, was a trespasser and, if so, what effect that had on liability.
- Whether the defendant was recklessly indifferent to the risk that the razor blades could injure a person in the plaintiff's position.
- The quantum of damages, including general damages, aggravated and exemplary damages, economic loss, and domestic assistance.
Decision
Gibson DCJ found in favour of the plaintiff. The court accepted that the defendant had intentionally placed razor blades in Blu-Tack on the window sill in circumstances where he was aware police might attend the premises. The rope or cord visible from outside, combined with the defendant's failure to respond to police knocking and calling out, had drawn officers to the window in the very way the defendant's conduct foreshadowed. The court concluded the conduct constituted a battery.
On the trespass argument, the court found the police had lawful grounds to attend the premises given the genuine welfare concerns and the terms of the apprehended violence order that had been breached. The argument that the plaintiff was a trespasser without lawful basis to be at the window was rejected.
The court also found, in the alternative, that the defendant was recklessly indifferent to the foreseeable risk of injury from leaving razor blades embedded in the window sill. A person seeking to look through the window in the circumstances that unfolded was precisely the kind of person who could be injured by such a device. The plaintiff's act of resting his hand on the sill was a natural and predictable response to climbing a ladder to that height.
On damages, the court accepted the plaintiff's evidence, noting that he tended to minimise rather than exaggerate his difficulties. The court awarded damages totalling $444,596, encompassing general damages, economic loss, and both past and future domestic assistance. An asset freezing order, made at the commencement of the hearing, was continued.
Orders Made
- Judgment for the plaintiff for $444,596.
- Defendant to pay the plaintiff's costs.
- The asset freezing order made on 10 October 2017 continued until further order.
- Liberty to restore in relation to interest, the asset freezing order, and costs.
- Exhibits retained for 28 days.
Key Takeaways
- The District Court held that embedding razor blades in a window sill using Blu-Tack, in circumstances where police attendance was foreseeable, could constitute a battery by use of a trap or device, even without direct physical contact between the defendant and the plaintiff.
- Reckless indifference to a foreseeable risk of injury is sufficient to ground a battery claim where the defendant sets or maintains a device capable of causing injury to a class of persons whose presence was foreseeable.
- A police officer responding to genuine welfare concerns arising from a breach of an apprehended violence order was found to have lawful authority to be at the defendant's premises, defeating any argument that the officer was a trespasser at the time of injury.
- Consistent understatement by a plaintiff in describing the extent of injury and functional limitation can strengthen, rather than undermine, the credibility findings a court makes when assessing damages.
- Where domestic assistance needs are established through uncontested expert evidence, courts may award future domestic assistance even where the precise threshold under the Civil Liability Act 2005 (NSW) is uncertain, provided the nature and likely use of those services is adequately demonstrated.
Legislation and Cases Referenced
Legislation:
- Civil Liability Act 2005 (NSW), ss 3B, 5B
- Evidence Act 1995 (NSW), s 140
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 9
Cases:
- Barker v R (1983) 47 ALR 1
- BJ v Wilcox [2008] NSWSC 1332
- Cheng v Ferjudi (2016) 93 NSWLR 95
- Croucher v Cachia [2016] NSWCA 132
- Dean v Phung [2012] NSWCA 223
- Gray v Motor Accident Commission (1998) 158 ALR 485
- McGlen-McLeod v Galloway [2012] NSWCA 368
- New South Wales v Le [2017] NSWCA 290
- Roads and Traffic Authority of New South Wales v Dederer (2007) 238 ALR 761
- Smith v Copper Refineries Pty Ltd (Supreme Court of Queensland, Cullinane J, 7 September 1994)
- State of New South Wales v Bouffler [2017] NSWCA 185
- State of New South Wales v Exton [2017] NSWCA 294
- White v Johnson (2015) 87 NSWLR 779
- Woodley v Boyd [2001] NSWCA 35
- Zeppelin v Commonwealth of Australia [2002] NSWSC 228