Citation: Khodor v Murphy [2024] NSWDC 364
Court: District Court of New South Wales
Date: 26 August 2024
Judge(s): Waugh SC DCJ
Background
The plaintiff and the defendant were involved in an altercation on a suburban road in Miller, NSW on 8 March 2019, following an interaction between their vehicles. The plaintiff alleged that the defendant punched him multiple times, causing injuries to his shoulder, eye and psychological health. The defendant admitted to throwing a punch but maintained he struck only once, and only in response to a physical attack initiated by the plaintiff.
The case turned almost entirely on contested facts. Both men gave evidence at trial, each accusing the other of being the aggressor. No other witnesses were called, leaving the court to resolve two directly contradictory accounts.
Legal Issues
- Whether the defendant committed the tort of battery against the plaintiff
- Whether the defendant established self-defence under sections 52 or 53 of the Civil Liability Act 2002 (NSW)
- If liability was established, what damages the plaintiff was entitled to recover
Decision
The court accepted the defendant's account of events over the plaintiff's. His Honour found the defendant's version credible and consistent, while identifying significant implausibilities in the plaintiff's evidence. The court applied the principles from Fox v Percy in approaching the task of resolving conflicting oral testimony.
On the question of battery, the court confirmed the applicable principle from Croucher v Cachia: a defendant who directly causes physical contact with the plaintiff commits a battery unless the defendant proves they were "utterly without fault." The intentional nature of the blow was not in dispute. The onus then shifted to the defendant to establish the self-defence provisions under the Civil Liability Act 2002.
The court was satisfied that the defendant had established the requirements of section 52. The plaintiff's conduct was unlawful (constituting tortious battery), the defendant genuinely believed his response was necessary to defend himself, and the single punch was a reasonable response in the circumstances as he perceived them. That finding provided a complete defence to liability.
Because the section 52 defence succeeded, the court did not need to make final findings on quantum. His Honour nonetheless addressed damages in case the matter proceeded further, indicating that several heads of damage were not made out on the evidence. In particular, past out-of-pocket expenses were found to be insufficiently proved, and the claim for future surgery was not pleaded and lacked adequate medical support. A buffer of $5,000 for future out-of-pocket expenses relating to the shoulder would have been allowed had damages been in issue.
Orders Made
- Judgment for the defendant
- The plaintiff to pay the defendant's costs
Key Takeaways
- The District Court confirmed that under Croucher v Cachia, a defendant who intentionally makes physical contact bears the onus of proving they were "utterly without fault"; the plaintiff need not prove intention to establish battery.
- A complete defence under section 52 of the Civil Liability Act 2002 requires three elements: the conduct being responded to was unlawful; the defendant subjectively believed the response was necessary for self-defence; and the response was objectively reasonable in the circumstances as the defendant perceived them.
- "Unlawful conduct" for the purposes of section 52(1)(a) extends beyond criminal acts to include tortious conduct, provided no defence to that tortious conduct has been made out (following McMaster and Croucher).
- Where only two witnesses give directly opposing accounts, the court must carefully assess credibility and consistency rather than treating the plaintiff's failure to prove their case as automatically determinative.
- Past out-of-pocket expenses require direct documentary proof of actual expenditure; the court rejected the contention that such expenses could be established by inference or estimate alone.
Legislation and Cases Referenced
Legislation
- Civil Liability Act 2002 (NSW), sections 52 and 53
- Evidence Act 1995 (NSW)
Cases
- Croucher v Cachia [2016] NSWCA 132, (2016) 95 NSWLR 117
- Fox v Percy (2003) 214 CLR 118
- Irlam v Byrnes [2022] NSWCA 81
- Nevin v B & R Enclosures [2004] NSWCA 339
- State of New South Wales v McMaster [2015] NSWCA 228, (2015) 328 ALR 309