Citation: Schilling v Smith (No 2) [2022] NSWDC 329
Court: District Court of New South Wales
Date: 12 August 2022
Judge: Judge Levy SC
Background
This was the second phase of proceedings arising from a violent assault committed on 26 January 2014. In the first phase (Schilling v Smith [2022] NSWDC 298), the District Court found that the first defendant had head-butted and repeatedly punched and kicked the plaintiff while he was on the ground, then dragged him and forcibly inserted a beer bottle into his anus, causing anal tears and numerous other physical injuries.
The plaintiff, a man aged 37 at the time of the hearing, had been working in aged care nursing in regional NSW at the time of the assault. He held three concurrent nursing jobs, was studying toward enrolled nurse qualifications, and intended to pursue a long career advancing through the nursing profession. He also volunteered with the State Emergency Service.
This second phase required the court to assess the full extent of the plaintiff's damages consequent on the assault. The Civil Liability Act 2002 (NSW) did not apply to intentional torts of this kind, so damages were assessed according to the common law.
Legal Issues
- What general damages (pain and suffering, loss of amenities) were appropriate for the plaintiff's physical and psychological injuries?
- What past and future economic losses had the plaintiff sustained, including loss of earning capacity in nursing?
- What amounts were warranted for past and future treatment expenses, and for past and future domestic assistance?
- Whether aggravated damages were available and, if so, in what amount?
- Whether the District Court had jurisdiction to enter judgment for the full assessed amount, given the court's statutory jurisdictional cap of $750,000 (and the unavailability of the extended $1,250,000 cap due to a procedural deficiency in service)?
Decision
Judge Levy SC conducted a detailed assessment across all heads of damage. The court found the plaintiff had sustained serious and lasting physical injuries, including ongoing anal and gastrointestinal complications, as well as significant psychological harm including post-traumatic stress disorder. These conditions had materially impaired his ability to work in nursing, affecting both his capacity to sustain long hours and his ability to provide hands-on personal care to patients.
On economic loss, the court accepted that the plaintiff had strong prospects of a sustained nursing career, likely progressing to a senior registered nurse role. The assault had disrupted that trajectory substantially, and the court assessed both past and future loss of earning capacity accordingly, having regard to relevant nursing wage rates in evidence.
Aggravated damages of $90,000 were awarded. These were available at common law for intentional torts and were justified by the particularly vicious and humiliating nature of the assault, including the sexual component. The court noted that aggravated damages compensate for the additional harm to the plaintiff's dignity and feelings caused by the manner in which the wrong was committed, citing principles drawn from Fontin v Katapodis and Uren v John Fairfax.
The total assessed damages were $2,505,080.01. However, a significant jurisdictional issue arose. The District Court's general jurisdictional limit is $750,000, with the possibility of extending this to $1,250,000 under section 51 of the District Court Act 1973 (NSW) if both parties consent and are served with the required statement of particulars. Because the statement of particulars had not been personally served on the first defendant after his solicitor ceased acting, the extended cap was unavailable. Following Richards v Cornford [2010] NSWCA 99, the court was required to enter verdict and judgment in the full assessed amount, while observing that actual recovery of that amount from the defendant was a separate matter.
Orders Made
- Verdict and judgment for the plaintiff against the first defendant in the sum of $2,505,080.01.
- The first defendant is to pay the plaintiff's costs of the proceedings.
- Exhibits may be returned to the plaintiff's solicitor on a written undertaking to return them to the court if required in another court.
- Liberty to apply on 7 days' notice if further or other orders are required.
Key Takeaways
- The Civil Liability Act 2002 (NSW) does not apply to intentional torts such as assault and battery, meaning damages for such claims continue to be assessed under the common law, potentially without the statutory caps and limitations that apply to negligence claims.
- Aggravated damages remain available at common law for intentional torts where the manner of the wrong inflicts additional harm to the plaintiff's dignity; the District Court awarded $90,000 under this head given the prolonged and sexually violent nature of the assault.
- A plaintiff's pre-injury career trajectory, work ethic, and demonstrated commitment to a profession are relevant considerations in assessing future economic loss, even where that career had not yet fully progressed.
- Under section 51 of the District Court Act 1973 (NSW), the extended jurisdictional cap of $1,250,000 is only available where the statement of particulars is properly served on the defendant personally if they are unrepresented; failure to serve that document will confine the court to its standard jurisdictional limit, even where assessed damages far exceed it.
- Following Richards v Cornford, the District Court is obliged to enter judgment in the full assessed amount even when that amount exceeds its jurisdictional limit, with recovery of the excess being a separate practical question for the plaintiff.
Legislation and Cases Referenced
Legislation
- Civil Liability Act 2002 (NSW)
- District Court Act 1973 (NSW), s 51
- Health and Other Services (Compensation) Act 1995 (Cth), s 8
- Uniform Civil Procedure Rules 2005 (NSW), rr 28.2, 42.1
Cases
- Schilling v Smith [2022] NSWDC 298 (first phase judgment)
- Richards v Cornford [2010] NSWCA 99
- Fontin v Katapodis (1962) 108 CLR 177
- Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118
- Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
- Bresatz v Przibilla (1962) 108 CLR 541
- Graham v Baker (1961) 106 CLR 340
- MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657
- Medlin v State Government Insurance Commission (1995) 182 CLR 1
- Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383
- Penrith City Council v Parks [2004] NSWCA 201
- Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118
- State of NSW v Moss (2000) 54 NSWLR 536
- State of NSW v Riley [2003] NSWCA 208