Citation: Fung v Bossie Chau Pty Ltd t/a 278 Club, Chang & Hu [2020] NSWDC 118
Court: District Court of New South Wales
Date: 21 April 2020
Judge: Judge Levy SC
Background
The plaintiff was a 23-year-old customer at a brothel in Surry Hills operated by the first defendant company, whose guiding minds were the second defendant (the male proprietor) and the third defendant (his wife). Shortly after 2:40am on 26 June 2018, the male and female proprietors unlocked and entered the room in which the plaintiff was receiving paid sexual services, without prior warning.
The plaintiff alleged that what followed was a violent altercation in which he was repeatedly punched and kicked, subjected to intimidation and humiliation, and detained against his will for approximately half an hour. His mobile telephone was also confiscated during that period. Both the male and female proprietors had previously entered guilty pleas to common assault charges arising from the same events.
The plaintiff sued all three defendants for damages in tort, claiming assault, battery and wrongful deprivation of liberty, as well as aggravated and exemplary damages. The defendants denied the severity of the events and raised several statutory defences under the Civil Liability Act 2002 (NSW).
Legal Issues
- Whether the plaintiff's account of the assault, battery and detention was credible and reliable, and to what extent the defendants' competing accounts should be accepted
- Whether the defendants committed intentional torts against the plaintiff, specifically assault, battery and false imprisonment
- Whether the first defendant company was vicariously liable for the conduct of the second and third defendants
- Whether the defence of obvious risk under s 5F of the Civil Liability Act applied
- Whether the defence relating to criminal activity under s 50 of the Civil Liability Act applied
- Whether the Pt 7 defences under ss 52 and 53 of the Civil Liability Act applied
- The proper assessment of general, aggravated, exemplary, economic and other damages
Decision
Judge Levy SC conducted a detailed credibility analysis and preferred the plaintiff's evidence over that of the proprietors. The Court found significant problems with the defendants' testimony and accepted that the plaintiff had been assaulted, battered, detained and humiliated in the manner he described. The guilty pleas to common assault entered by the second and third defendants were noted as a relevant part of the evidentiary picture.
All four Civil Liability Act defences failed. The obvious risk defence under s 5F was rejected because the plaintiff's injuries did not result from the materialisation of a risk that was obvious in the relevant statutory sense. The criminal activity defence under s 50 was similarly rejected. The Pt 7 defences under ss 52 and 53 were found to be inapplicable to the circumstances of an intentional tort of this nature. The corporate first defendant was held vicariously liable for the actions of the second and third defendants as its directing minds.
On damages, the Court awarded general damages for non-economic loss at $75,000, comprising both past and future components. Aggravated damages were incorporated within that general damages figure, reflecting the humiliating and demeaning circumstances of the assault and detention. Exemplary damages of $25,000 were also awarded, given the deliberate and high-handed nature of the defendants' conduct. The Court applied established principles from cases including Lamb v Cotogno on the availability of exemplary damages for intentional torts.
Past economic loss of $12,600 was awarded, along with future economic loss of $30,000, future treatment expenses of $5,000, past out-of-pocket expenses of $6,185.85, and interest on past general damages of $1,072, yielding a total award of $154,857.85.
Orders Made
- Verdict and judgment for the plaintiff against each defendant in the sum of $154,857.85
- The defendants are to pay the plaintiff's costs on the ordinary basis, unless otherwise ordered
- Exhibits to be retained with the Court file until further order
- Liberty to apply on 7 days' notice if further or other orders are required
- The Registrar directed to forward a copy of the reasons, transcript and specified exhibit pages to the relevant officer at the Australian Taxation Office
Key Takeaways
- The District Court held that the Civil Liability Act defences under ss 5F, 50, 52 and 53 do not automatically apply where a plaintiff is present at a brothel; each defence requires a proper factual and legal foundation, which was absent here.
- Intentional torts such as assault, battery and false imprisonment remain outside the protective scope of the Pt 7 defences under the Civil Liability Act, at least on the facts considered in this case.
- Guilty pleas entered by the defendants in related criminal proceedings formed part of the evidentiary record the Court took into account when making civil findings.
- Exemplary damages are available in intentional tort cases involving deliberate, high-handed and humiliating conduct, consistent with the High Court's approach in Lamb v Cotogno (1987) 164 CLR 1.
- A company can be held vicariously liable for the intentional tortious acts of individuals who are its directing minds and who carry out those acts in connection with the business.
Legislation and Cases Referenced
Legislation
- Civil Liability Act 2002 (NSW), ss 5F, 50, 52, 53, Pt 7
- Evidence Act 1995 (NSW), ss 60, 67
- Summary Offences Act 1988 (NSW), s 15(3)
- Uniform Civil Procedure Rules 2005 (NSW), r 31.10(1)
Cases
- Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1
- MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657
- Briginshaw v Briginshaw (1938) 60 CLR 336
- Zavarinos v State of New South Wales [2004] NSWCA 320
- State of New South Wales v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496
- Presidential Security Services of Australia Pty Ltd v Brilley [2008] NSWCA 204
- Rosniak v GIO (1997) 41 NSWLR 608
- Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118
- Penrith City Council v Parks [2004] NSWCA 201
- Mason v Demasi [2009] NSWCA 227
- Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
- State of NSW v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536
- Browne v Dunn (1893) 6 R 67
- Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132