Citation: James v James (No. 3) [2020] NSWDC 797
Court: District Court of New South Wales
Date: 16 November 2020
Judge: Neilson DCJ
Background
The plaintiff, a woman in her mid-forties, brought a civil claim against her former husband for the torts of assault and battery arising from two separate incidents of domestic violence. The parties had been married since 2003 and lived together on a macadamia farm near Clunes, NSW. They had two children together.
The first incident occurred on 26 September 2017 and involved sustained verbal abuse followed by the defendant physically grabbing and restraining the plaintiff, causing bruising to her upper arms and wrists. The plaintiff later returned to the farm after that incident. The second, far more serious incident occurred on 20 February 2018 and involved an extended and severe physical assault, including repeated shoulder charges, kicks with steel-capped boots, open-palm strikes to the head and arms, hair-pulling, and an attempt to smash the plaintiff's head onto a glass table.
Default judgment had already been entered against the defendant, and his application to set that judgment aside had been refused. This hearing concerned the assessment of damages only.
Legal Issues
- What compensatory, aggravated, and exemplary damages were appropriate for the assault and battery on 26 September 2017?
- What damages were appropriate for the far more serious assault and battery on 20 February 2018, including general damages, out-of-pocket expenses, and economic loss?
- What weight should be given to an audio recording of the 20 February 2018 incident made on the plaintiff's mobile phone, given a technical breach of the Surveillance Devices Act 2007?
- What allowance should be made for the plaintiff's ongoing psychiatric injury (PTSD) and its impact on her capacity to work?
Decision
September 2017 incident. The court accepted the plaintiff's evidence of the verbal abuse and physical restraint. It noted the defendant had avoided any criminal punishment for this incident after the relevant charge was withdrawn as part of a plea arrangement over the later events. Guided by the range of damages in comparable cases, including the Court of Appeal's assessment in Cooper v Mulcahy, Neilson DCJ awarded $15,000 in compensatory damages, $7,000 in aggravated damages, and $5,000 in exemplary damages, totalling $27,000 plus interest of $4,320.
February 2018 incident. The audio recording of this assault, admitted under s 138 of the Evidence Act 1995 despite a technical breach of the Surveillance Devices Act 2007, captured a prolonged and severe attack. The forensic psychiatrist, Dr Klug, diagnosed the plaintiff with Post-Traumatic Stress Disorder attributable to this incident. The court awarded $180,000 in general damages for pain and suffering, together with out-of-pocket expenses of $7,520.
Economic loss. The plaintiff had been working part-time in the period prior to the assault and had lost that capacity. The court accepted her past economic loss claim and rounded it to $40,000. For future loss, the court awarded a buffer of $100,000 to account for the plaintiff's compromised earning capacity going forward, noting she could likely earn approximately $20,000 per year if she were able to find part-time work. Interest of $7,200 was allowed on a portion of the general damages.
Total. Adding the awards for both incidents, general damages, out-of-pocket expenses, past and future economic loss, and interest, the court entered verdict and judgment for the plaintiff in the total sum of $358,520.
Orders Made
- Verdict and judgment for the plaintiff against the defendant in the sum of $358,520.
- The defendant is to pay the plaintiff's costs.
Key Takeaways
- The District Court confirmed that the torts of assault and battery do not require proof of damage, though actual bodily harm was established on the facts of both incidents here.
- Where a defendant fails to file a defence and default judgment is entered, the pleaded facts are taken as admitted, but quantum of damages remains to be assessed by the court.
- An audio recording obtained in technical breach of the Surveillance Devices Act 2007 may still be admitted in civil proceedings where the court exercises its discretion under s 138 of the Evidence Act 1995.
- A plaintiff's PTSD caused by domestic violence can ground an award for both general damages and loss of earning capacity, including a future economic loss buffer where the capacity to work remains compromised.
- Exemplary damages remain available in intentional tort claims arising from domestic violence, particularly where the defendant has faced no criminal punishment for the relevant conduct.
Legislation and Cases Referenced
Legislation:
- Civil Liability Act 2002 (NSW)
- Evidence Act 1995 (NSW), s 138
- Surveillance Devices Act 2007 (NSW)
Cases:
- Cooper v Mulcahy [2013] NSWCA 160