Citation: [2024] NSWDC 292
Court: District Court of New South Wales
Date: 18 July 2024
Judge: Cole DCJ
Background
The plaintiff, a woman living in a country town in New South Wales, brought proceedings against a neighbour following an incident on the evening of 7 March 2020. The two women had been at the same local hotel earlier that afternoon before the plaintiff drove a mutual acquaintance and her three children home. The defendant lived nearby and, shortly after the plaintiff arrived at the acquaintance's house, walked up the street toward them.
The plaintiff alleged that the defendant then lunged at her, pushed or punched her onto a barbed-wire fence, punched her repeatedly in the face while she was pinned against the fence, and subsequently kicked her in the head, ribs, and groin. The defendant disputed this account, presenting a different version of the altercation and calling a witness who claimed to have been present.
The plaintiff sought general damages for physical and psychological injuries, reimbursement of medical expenses, and aggravated damages based on subsequent harassment and the defendant's conduct of the litigation.
Legal Issues
- Whether the defendant committed assault and battery against the plaintiff on 7 March 2020, assessed on the civil standard of proof with the heightened scrutiny required by the Briginshaw principle and s 140(2) of the Evidence Act 1995 (NSW)
- What weight to give to conflicting witness evidence, including the credibility of the defendant's witnesses
- What quantum of general damages was appropriate to compensate the plaintiff for past and future non-economic loss
- Whether aggravated damages were warranted, and if so in what amount
- What future treatment expenses the plaintiff was entitled to recover
Decision
Liability
Cole DCJ accepted the plaintiff's account of the incident and found that the defendant had committed battery. Because the allegations were serious, the court applied the Briginshaw standard, requiring clear and cogent evidence capable of inducing actual persuasion, as reflected in s 140(2) of the Evidence Act 1995 (NSW). The court was not persuaded by the defendant's version of events. A witness called by the defendant who claimed to have been present at the incident was found not to have been there, which significantly undermined the defendant's case.
General Damages
Drawing on the comparable decision in Graves v West (No 2) [2015] NSWSC 306, the court awarded $75,000 in general damages for non-economic loss. Of that sum, $50,000 was attributed to past non-economic loss and $25,000 to future non-economic loss. Simple interest of $4,000 was added on the past component, calculated at 2% over four years.
Aggravated Damages
The court found that aggravated damages were warranted on two bases: the defendant's persistent harassment of the plaintiff in the months following the battery, which compounded the plaintiff's anxiety and sense of insecurity; and the defendant's conduct of the litigation, which included untrue allegations and reliance on a witness fabricating their presence at the scene. An award of $15,000 was made on this basis, rather than the $30,000 sought.
Future Treatment Expenses
The court accepted all of the future treatment expenses claimed by the plaintiff, totalling $17,064.22. These covered ongoing foot and ankle specialist appointments, an MRI, medication, psychology and psychiatry sessions, and general practitioner attendances. The amounts were supported by expert medical evidence and were not contested in terms of quantum by the defendant.
Orders Made
- Verdict and judgment for the plaintiff against the defendant in the sum of $111,064.22
- The question of costs is reserved
Key Takeaways
- The District Court applied both the Briginshaw principle and s 140(2) of the Evidence Act 1995 (NSW) together, treating them as complementary requirements when assessing serious allegations of assault and battery in civil proceedings.
- A defendant's credibility was significantly damaged where a witness called on her behalf was found not to have been present at the incident, despite claiming to be an eyewitness.
- Aggravated damages for battery can encompass not only the defendant's post-incident conduct toward the plaintiff but also dishonest conduct during the litigation itself, though the court awarded a more modest sum than was sought.
- Where expert medical evidence supports future treatment expenses and the defendant does not contest the quantum, the court will award those expenses in full even if the defendant disputes the entitlement to any award at all.
- Comparable awards from earlier decisions remain relevant benchmarks for general damages in battery cases, with courts adjusting for the passage of time and the differing circumstances of each case.
Legislation and Cases Referenced
Legislation
- Civil Liability Act 2002 (NSW)
- Evidence Act 1995 (NSW), s 140
Cases
- Briginshaw v Briginshaw [1938] HCA 34
- Croucher v Cachia [2016] NSWCA 132
- Fox v Percy [2003] HCA 22
- Graves v West (No 2) [2015] NSWSC 306
- Riechelmann v McCabe [2024] NSWCA 37
- Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208
- State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) [1999] HCA 3