Citation: Prisk v Danslow [2024] NSWDC 535
Court: District Court of New South Wales
Date: 13 November 2024
Judge: Acting Judge Levy SC
Background
The plaintiff was a mobile speed camera operator who, on the evening of 9 February 2023, was seated in his vehicle in the car park of the Oberon RSL Club, supervising speed camera equipment he had set up nearby. The defendant, a corrections officer of ten years' standing, approached the vehicle in an agitated state, having wrongly concluded that the plaintiff was a paedophile waiting to access children.
After an escalating verbal confrontation, the defendant forced down the plaintiff's car window, punched him forcefully in the face, and then walked away. The plaintiff suffered facial lacerations, bruising, bleeding, and the loss of a tooth. He may briefly have lost consciousness. The defendant appears to have switched off the vehicle's ignition and thrown away the keys before leaving the scene without providing any identifying details.
The defendant had not filed a defence, and default judgment was entered against him in July 2024. The November 2024 hearing was convened solely to assess the quantum of damages. The defendant attended with a solicitor but made no application to set aside the default judgment.
Legal Issues
- What amount of compensatory damages, including general damages, was appropriate for the plaintiff's physical injuries, pain and suffering, loss of income, and out-of-pocket expenses?
- Were the circumstances sufficient to justify an award of aggravated damages, reflecting conduct that was particularly high-handed or contumelious?
- Was an award of exemplary damages (also called punitive damages) warranted given the nature and context of the assault?
- What pre-judgment interest applied to past losses?
- Did the Civil Liability Act 2005 (NSW) apply to cap or limit the damages?
Decision
Acting Judge Levy SC accepted the plaintiff's evidence in its entirety, finding it to be straightforward, credible, and not inherently improbable. The defendant's partial denial, including his claim that he had only pushed the plaintiff's face with an open palm rather than punching him, was rejected. That version was inconsistent with an undisputed statement of agreed facts and was in any event precluded by the estoppel arising from the undefended pleadings.
The Civil Liability Act 2005 (NSW) was held not to apply, because s 3B(1)(a) excludes intentional acts done with intent to cause injury or death. The defendant's conduct was precisely that kind of intentional tort, leaving the full range of common law damages available without the Act's restrictions.
Aggravated damages were included within the general damages award of $190,000. The court found the defendant had initiated a confrontation based on a mistaken and misplaced suspicion, subjected the plaintiff to verbal abuse and threats, punched a man who was simply performing a public duty, and departed the scene without remorse or apology. The absence of any contrition before or during the hearing reinforced the aggravated damages component.
Exemplary damages of $25,000 were also awarded. The court reasoned that compensatory damages alone were insufficient to express societal disapproval of the defendant's conduct. The defendant, as a serving corrections officer, had purported to exact extra-judicial punishment on the plaintiff in contumelious disregard of the plaintiff's rights. That conduct, described as contemptible, warranted a punitive award.
Orders Made
- Verdict and judgment for the plaintiff in the assessed amount of $401,264.45, including pre-judgment interest.
- The defendant is to pay the plaintiff's costs on the ordinary basis, unless a party demonstrates a basis for a different costs order.
- The exhibits are to be returned.
- Liberty to apply on seven days' notice if further or other orders are required.
Key Takeaways
- The District Court confirmed that s 3B(1)(a) of the Civil Liability Act 2005 (NSW) removes intentional torts from the Act's operation, leaving common law principles to govern the full assessment of damages, including aggravated and exemplary awards.
- Where default judgment has been entered, a defendant's evidence at a damages assessment hearing cannot traverse the facts pleaded in the statement of claim; any contrary account gives rise to an estoppel on those uncontested pleadings.
- Aggravated damages are available where the manner in which an intentional tort was committed, including the defendant's subsequent conduct and absence of remorse, compounds the harm to the plaintiff's dignity and feelings.
- Exemplary damages are justified when compensatory damages alone would not adequately reflect the community's condemnation of intentional, malicious conduct carried out in contumelious disregard of the plaintiff's rights, particularly where the defendant held a position that demanded awareness of lawful boundaries.
- The total award of $401,264.45 comprised past and future out-of-pocket expenses (including significant future dental and medical costs of $130,000), past and future income losses, general and aggravated damages, exemplary damages, and pre-judgment interest.
Legislation and Cases Referenced
Legislation
- Civil Liability Act 2005 (NSW), s 3B(1)(a)
- Crimes Act 1900 (NSW), s 35(2)
- Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Cases
- Adams v Kennedy [2000] NSWCA 152; (2000) 49 NSWLR 78
- Cassel & Co Ltd v Broome [1972] AC 1027
- Fox v Wood (1981) 148 CLR 438
- Gray v Motor Accidents Commission (1998) 196 CLR 1
- Lamb v Cotogno (1987) 164 CLR 1
- Nadjovski v Crnojlovic [2008] NSWCA 175
- NSW v Ibbett (2006) 229 CLR 638
- NSW v Landini [2010] NSWCA 157
- Penrith City Council v Parks [2004] NSWCA 201
- Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 18
- Radford v State of NSW [2010] NSWCA 276
- Rookes v Barnard [1964] AC 1129
- Spautz v Butterworths & Anor [1996] 41 NSWLR 1
- State of New South Wales v Riley (2003) 57 NSWLR 496
- State of NSW v Abed [2014] NSWCA 419
- State of NSW v Moss (2000) 54 NSWLR 536
- State of NSW v Quirk [2012] NSWCA 216
- State of NSW v Zreika [2012] NSWCA 37