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District Court 24 July 2019

Best v Rosamond

[2019] NSWDC 344

Assault & violence
TORTS INTENTIONAL TORT ASSAULT. LIMITATION OF ACTIONS WHETHER THE PLAINTIFF'S ACTION IS TIME BARRED BY LIMITATION PERIOD DISCOVERABILITY

Citation: Best v Rosamond [2019] NSWDC 344
Court: District Court of New South Wales
Date: 24 July 2019
Judge: Abadee DCJ

Background

The plaintiff and defendant had been close friends for some years. In the early hours of 10 January 2015, following a lengthy Christmas party at the defendant's home on Sydney's lower North Shore, the defendant punched the plaintiff in the eye. The defendant later pleaded guilty to common assault. The core dispute about the assault itself concerned its extent and the degree of injury caused, with the defendant contending the plaintiff had exaggerated both.

The plaintiff commenced proceedings on 17 August 2018, approximately seven months after the ordinary three-year limitation period had expired. The defendant argued the claim was time-barred. The defendant also raised a contested factual explanation for the assault, claiming he had found the plaintiff in a compromising position with his then wife, though the parties gave conflicting accounts of what had actually occurred.

Because the claim was for an intentional tort, the damages restrictions under the Civil Liability Act 2002 (NSW) did not apply. The plaintiff claimed general damages, past and future out-of-pocket expenses, loss of earning capacity, and aggravated damages.

  • Whether the plaintiff's claim was time-barred under s 50C of the Limitation Act 1969 (NSW), given proceedings were commenced approximately seven months after the three-year limitation period expired
  • Whether the cause of action was "discoverable" within the meaning of s 50D, specifically whether the plaintiff knew or ought to have known that his injury was sufficiently serious to justify bringing an action
  • The extent of the assault and resulting injuries
  • The appropriate quantification of damages across each claimed head, including aggravated damages
  • Whether a Jones v Dunkel inference should be drawn from the failure to call a particular third-party witness

Decision

Limitation defence: time bar established

The court addressed the limitation question first, treating it as potentially dispositive. Under s 50C(1)(a) of the Limitation Act 1969, the three-year period runs from the date the cause of action is "discoverable." Section 50D defines discoverability by reference to three facts the plaintiff knows or ought to know: that the injury occurred, that it was caused by the defendant's fault, and that the injury was sufficiently serious to justify bringing an action.

Abadee DCJ applied the Court of Appeal's analysis in Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454, affirmed in State of New South Wales v Gillett [2012] NSWCA 83. Those authorities establish that the "ought to have known" test requires the plaintiff to have taken all reasonable steps, including obtaining legal and medical advice, and that the seriousness question under s 50D(1)(c) calls for a legal and medical evaluative assessment. On the facts, the court found the plaintiff knew or ought to have known, well within the ordinary limitation period, that his injury was sufficiently serious to justify bringing a claim. The limitation defence succeeded and the plaintiff's claim failed on that basis.

Damages assessment (hypothetical)

Although the time bar was dispositive, Abadee DCJ proceeded to assess damages on a hypothetical basis. The court found the assault had caused genuine injury, while accepting the defendant's contention that the plaintiff had overstated the extent of his ongoing disabilities and loss of earning capacity to some degree. Tax returns and medical evidence were examined in assessing past and future economic loss.

On aggravated damages, the court accepted that the circumstances of the assault, in particular the serious breach of trust involved in being punched by a close friend at a private gathering, warranted a substantial award. The defendant's arguments in opposition were assessed from the defendant's own perspective, which the court found was not the correct vantage point: the principle operates from the plaintiff's perspective, consistent with New South Wales v Ibbett [2006] HCA 57.

Orders Made

  • Verdict and judgment for the defendant
  • The plaintiff is to pay the defendant's costs
  • Liberty to apply on 7 days' notice for any application to vary the costs order, to be determined on the papers following short written submissions

Key Takeaways

  • The District Court confirmed that discoverability under s 50D of the Limitation Act 1969 requires a plaintiff to take all reasonable steps, including obtaining legal and medical advice, to ascertain whether an injury is sufficiently serious to justify bringing an action. Failure to do so will be assessed objectively.
  • In applying the "ought to have known" test in s 50D(2), the court examines the steps the plaintiff actually took and whether those steps were reasonable in the circumstances of the particular case, following Baker-Morrison and Gillett.
  • Where an intentional tort is established, s 3B of the Civil Liability Act 2002 removes the usual statutory caps and restrictions on damages, leaving courts to assess compensation at general law.
  • Aggravated damages for an intentional assault are assessed from the plaintiff's perspective, not the defendant's. The court indicated it would have awarded $40,000 under this head had the claim not been time-barred.
  • Even where a limitation defence succeeds, a court may proceed to assess damages in the alternative. Here, the hypothetical award would have totalled $181,248.35 across all heads, including past and future out-of-pocket expenses, general damages, loss of earning capacity, and aggravated damages.

Legislation and Cases Referenced

Legislation
- Civil Liability Act 2002 (NSW), s 3B
- Limitation Act 1969 (NSW), ss 50C, 50D

Cases
- Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454
- State of New South Wales v Gillett [2012] NSWCA 83
- New South Wales v Ibbett [2006] HCA 57; 231 ALR 485
- Wardley v Western Australia (1992) 175 CLR 514
- Lamb v Cotogno (1987) 164 CLR 1
- Royal North Shore v Henderson (1986) 7 NSWLR 283
- Ditchburn v Seltsam Pty Ltd (1989) 17 NSWLR 697
- Fabre v Arenales (1992) 27 NSWLR 437
- New South Wales v Riley (2003) 57 NSWLR 496
- Payne v Parker (1976) 1 NSWLR 191
- Purkess v Crittenden (1965) 114 CLR 164
- Rogers v Interpacific Resorts Australia Pty Ltd [2007] QSC 239