Citation: Murdock v Betham [2018] NSWDC 192
Court: District Court of New South Wales
Date: 20 June 2018
Judge: P Taylor SC DCJ
Background
The plaintiff was a 40-year-old woman who was attacked by her husband of approximately 20 years in their home on 4 July 2015. Over the course of several hours, her husband confined her, taped her mouth and bound her hands, cut her clothing from her body, and used a large knife to inflict wounds to her wrists and both breasts. During the ordeal he threatened to kill himself and indicated he might kill her as well. She was left naked, cold, bleeding, and terrified throughout the confinement.
The husband was subsequently sentenced to a lengthy term of imprisonment for this conduct. The plaintiff brought civil proceedings in the District Court for personal injury damages in assault and false imprisonment. The defendant did not file an appearance or defence, and default judgment had previously been entered against him. The matter came before Taylor SC DCJ solely for the assessment of damages.
At the time of the hearing, the parties were also engaged in concurrent property proceedings in the Family Court of Australia, which were awaiting the outcome of this assessment.
Legal Issues
- Whether the District Court should continue with the damages assessment, given concurrent Family Court property proceedings between the parties
- Whether the Civil Liability Act 2002 applied to limit damages, or whether it was excluded for intentional acts
- The appropriate quantum of damages for non-economic loss arising from the assault and false imprisonment, including aggravated damages
- Whether exemplary (punitive) damages were available
- The appropriate quantum of future out-of-pocket expenses, including psychiatric treatment, medication, and general practitioner visits
Decision
Jurisdiction and the concurrent Family Court proceedings
Taylor SC DCJ considered whether the proceedings more properly belonged before the Family Court. His Honour referred to the Full Court of the Family Court in Kennon v Kennon, which confirmed that damages claims for assault are not part of the ordinary jurisdiction of the Family Court, and that state courts are the natural tribunals for common law damages claims. While the subject matter of these proceedings fell within the Family Court's accrued (or pendent) jurisdiction as part of broader property adjustment between the parties, that was insufficient reason to interrupt the District Court proceedings. His Honour noted that finalising the damages assessment in advance might actually assist the Family Court by providing certainty as to the parties' asset positions.
Application of the Civil Liability Act 2002
The Civil Liability Act 2002 was held not to apply to this claim. Section 3B(1)(a) excludes the Act from applying to civil liability for intentional acts done with intent to cause injury or death. The husband's conduct plainly fell within that exclusion, meaning the Act's caps and thresholds on damages did not constrain the assessment.
Non-economic loss and aggravated damages
Taylor SC DCJ accepted the plaintiff's evidence in full, noting it was given on an ex parte basis and was internally consistent. The plaintiff suffered permanent scarring to both breasts and her wrist, and was diagnosed with post-traumatic stress disorder (PTSD) that persisted despite ongoing counselling. His Honour awarded $150,000 for non-economic loss for the assaults and $25,000 for the false imprisonment. Aggravated damages of $25,000 were also awarded in connection with each cause of action, reflecting the particularly humiliating and demeaning nature of the conduct, including the deliberate targeting of the plaintiff's breast surgery and the prolonged terror she experienced. Exemplary (punitive) damages were not separately awarded on the basis that the defendant's criminal conviction and imprisonment already constituted punishment.
Future out-of-pocket expenses
The court awarded $7,854 for future psychiatric counselling (the claimed figure of $9,240, reduced by 15% for vicissitudes of life), a buffer of $3,000 for psychiatric medication, and a buffer of $2,000 for future general practitioner visits. Interest of $5,400 was also awarded.
Orders Made
- Judgment for the plaintiff in the sum of $243,254.
- Defendant to pay the plaintiff's costs.
Key Takeaways
- The District Court confirmed that damages claims for domestic violence assault are not ordinary Family Court business; state courts remain the natural forum for common law damages claims, even where concurrent Family Court property proceedings are on foot between the same parties.
- Section 3B(1)(a) of the Civil Liability Act 2002 excludes the Act's operation where the defendant's conduct constitutes an intentional act done with intent to cause injury, leaving the court free to assess damages at common law without statutory caps or thresholds.
- Aggravated damages are available where the manner of the assault was particularly humiliating, degrading, or calculated to cause fear, beyond what is already compensated by the general damages award.
- Exemplary (punitive) damages were not awarded separately where the defendant had already been criminally convicted and imprisoned for the same conduct, as the criminal process had already served the punitive function.
- A persistent PTSD diagnosis, supported by medical evidence, was treated as sufficient to justify an award for future psychiatric treatment even where the recommended higher level of intervention had not yet commenced.
Legislation and Cases Referenced
Legislation
- Civil Liability Act 2002 (NSW), s 3B(1)(a)
- Family Law Act 1975 (Cth)
- Uniform Civil Procedure Rules 2005 (NSW)
Cases
- Lamb v Cotogno (1987) 164 CLR 1; [1987] HCA 47
- Uren v John Fairfax (1966) 117 CLR 118; [1966] HCA 40
- New South Wales v Radford (2010) 79 NSWLR 327; [2010] NSWCA 276
- State of NSW v Abed [2014] NSWCA 419
- Yen v Yen [2010] FamCA 1
- M v Nesbitt [2012] NSWDC 152
- Elliott v Kotsopoulos [2009] NSWDC 164
- Shalhoub v State of New South Wales [2017] NSWDC 363