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District Court 24 February 2022

Southon v Ray

[2022] NSWDC 32

Assault & violenceDomestic & family violence
TORTS WHETHER DEFENCE OF SELF SIGNIFICANCE OF PRE CIVIL LIABILITY ACT 2002 S 3B (1)

Citation: Southon v Ray [2022] NSWDC 32
Court: District Court of New South Wales
Date: 24 February 2022
Judge: Abadee DCJ

Background

The plaintiff and defendant had been in a de facto relationship for approximately 17 years, living together at a property in Kariong, NSW. On the morning of 17 August 2017, an argument broke out in the lounge room of the home after the plaintiff asked the defendant to let her know when he was planning to be away. The argument escalated, and the plaintiff alleged the defendant grabbed her by the shoulders and pushed her with sufficient force that she fell backwards approximately one and a half metres, striking her head on a coffee table.

The plaintiff commenced proceedings in June 2020 seeking damages for personal injury arising from that incident. The defendant denied the assault, but pleaded in the alternative that if he did push the plaintiff, he did so in self-defence and in response to provocation.

A subsidiary but significant dispute concerned which legal framework governed the assessment of damages. The plaintiff's primary position was that the Civil Liability Act 2002 (NSW) (the Act) was excluded, meaning common law principles applied to the damages assessment. That question turned on whether the defendant had intended to cause injury.

  • Whether the defendant committed battery by grabbing and pushing the plaintiff, causing her to fall and strike her head
  • Whether the defendant's conduct was justified by self-defence, either at common law or under Part 7 of the Civil Liability Act 2002 (NSW)
  • Whether the Act's damages provisions applied, or whether they were excluded by s 3B(1) on the basis that the defendant had "intent to cause injury"
  • Whether the plaintiff's injuries were caused by the defendant's conduct, her own conduct, or pre-existing conditions
  • What quantum of damages was appropriate, including whether aggravated damages should be awarded

Decision

Factual findings: what happened

Abadee DCJ accepted the plaintiff's account of events and found that the defendant had grabbed her and pushed her hard enough that she fell backwards and struck her head on the coffee table. The defendant's denial of the assault was rejected. The Court found the plaintiff to be a more credible witness and drew on her contemporaneous police interview, hospital records, and the physical evidence of the incident in reaching that conclusion.

Self-defence and provocation

The Court rejected the self-defence defence, both at common law and under the Act. Abadee DCJ was not satisfied that the defendant had a genuine belief that the push was necessary to defend himself, nor that his response was proportionate. The provocation defence was similarly dismissed. Even if the plaintiff's conduct could be characterised as provocative, it did not come close to justifying the degree of force the defendant used.

Application of the Civil Liability Act

The Court held that the Act's damages provisions were excluded by s 3B(1). Abadee DCJ found that the defendant, in pushing the plaintiff hard from close range while she was standing near furniture, had the intent to cause injury within the meaning of that provision. This was not a casual or inadvertent contact. The push was deliberate and forceful, and the risk of injury was obvious in the circumstances. Accordingly, damages fell to be assessed under common law principles rather than the Act's limiting framework.

Causation, pre-existing conditions, and quantum

The Court accepted that the plaintiff suffered physical injuries to her neck, head, right hand and arm, together with psychiatric sequelae, as a result of the incident. Although the plaintiff had some pre-existing physical and mental health conditions, the Court found the incident materially contributed to her disability and loss. Aggravated damages of $5,000 were awarded, based on the defendant's conduct in the aftermath of the incident and his approach to the proceedings. Total damages were assessed at $163,786.46.

Orders Made

  • Judgment for the plaintiff in the sum of $163,786.46, comprising:
  • General damages: $40,000.00
  • Interest on general damages: $8,861.92
  • Aggravated damages: $5,000.00
  • Past out-of-pocket expenses: $1,569.60
  • Future out-of-pocket expenses: $6,000.00
  • Past economic loss: $15,210.00
  • Interest on past economic loss: $3,369.74
  • Future loss of earning capacity: $24,000.00
  • Past domestic assistance: $14,750.00
  • Future domestic assistance: $45,025.20
  • The defendant is to pay the plaintiff's costs of the proceeding, as agreed or assessed
  • Either party may apply to vary the costs order by notice of motion supported by affidavit within 14 days
  • Liberty to apply within 14 days if there is any doubt about the calculations
  • Exhibits to be returned within 28 days

Key Takeaways

  • The District Court confirmed that the exclusion in s 3B(1) of the Civil Liability Act 2002, which removes the Act's limitations where a defendant acts with "intent to cause injury," applies even where the defendant does not subjectively aim to produce a specific physical outcome. A deliberate, forceful push in circumstances where injury is an obvious consequence was sufficient to engage the exclusion.

  • Where s 3B(1) is engaged, the common law framework governs the assessment of damages in full, meaning the Act's caps and thresholds on general damages do not apply.

  • Self-defence under both the common law and Part 7 of the Act requires that the defendant genuinely believed defensive action was necessary and that the response was proportionate. Neither element was established on the facts here.

  • Aggravated damages remain available in intentional tort claims governed by common law principles, but the District Court limited the award to conduct that was sufficiently connected to the tort itself or the conduct of the proceedings, rather than any and all distressing behaviour by the defendant.

  • Pre-existing physical and psychiatric conditions do not necessarily defeat or substantially reduce a damages claim. The Court assessed loss by reference to the extent the defendant's conduct materially worsened the plaintiff's position, taking the plaintiff as it found her.

Legislation and Cases Referenced

Legislation
- Civil Liability Act 2002 (NSW), ss 3A, 3B, 52, 53, 54

Cases
- Croucher v Cachia (2016) NSWLR 117
- Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc (2020) 103 NSWLR 658
- Fontin v Katapodis (1962) 108 CLR 177
- Giller v Procopets (2008) 24 VR 1
- Cooper v Mulcahy [2013] NSWCA 160
- James v James (No 3) [2020] NSWDC 797
- Joldzic v Patrick [2021] NSWDC 55
- Lamb v Cotogno (1987) 164 CLR 1
- State of NSW v McMaster (2015) 91 NSWLR 666
- Tabet v Gett (2010) 240 CLR 537