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District Court 9 April 2024

Cho v Dayoub

[2024] NSWDC 97

Assault & violence
TORT INTENTIONAL TORT CREDIBILITY OF PARTIES COSTS

Citation: Cho v Dayoub [2024] NSWDC 97
Court: District Court of New South Wales
Date: 9 April 2024
Judge: Coleman SC ADCJ

Background

The plaintiff and the defendant are next-door neighbours in Burraneer, NSW, whose properties share a masonry boundary wall overlooking Burraneer Bay. Their relationship deteriorated sharply from mid-2019, after the plaintiff complained to Sutherland Shire Council about unauthorised construction works the defendant had commenced on his property.

From August 2019 through Christmas Eve 2019, the plaintiff alleged a series of escalating hostile acts by the defendant, including verbal confrontations across the boundary wall, eggs thrown onto her property, damage to vehicle tyres and a CCTV camera, and interference with a sewerage pipe. The proceedings ultimately centred on three alleged incidents of assault and battery, the most significant being an incident on Christmas Eve 2019.

The plaintiff sought compensatory, aggravated, and exemplary damages, together with damages for past, present, and future economic loss arising from the defendant's alleged tortious conduct.

  • Whether the plaintiff proved, on the balance of probabilities, that the defendant committed assault, battery, and trespass to the person on the occasions alleged.
  • Whether the credibility of the plaintiff and the defendant supported or undermined the factual allegations.
  • Whether the defendant's conduct was an intentional act intended to cause injury, so as to engage the exclusion in s 3B(1)(a) of the Civil Liability Act 2002 (NSW), thereby removing the statutory cap on damages and restoring common law assessment.
  • Whether the plaintiff suffered a psychiatric or psychological condition, and whether the defendant's conduct caused that condition.
  • Whether any pre-existing vulnerability or a subsequent attack by a third party broke the causal chain or otherwise limited the defendant's liability.
  • Whether the plaintiff was entitled to aggravated and exemplary damages, and if so, in what amount.
  • Whether the plaintiff suffered past or future economic loss causally linked to the defendant's conduct, including in relation to her investment properties.
  • The appropriate quantum of general damages and total judgment.

Decision

The court found in favour of the plaintiff on liability, accepting that the defendant committed intentional tortious conduct, including on Christmas Eve 2019, which was the most seriously contested incident. The court assessed the credibility of both parties carefully and, where the accounts conflicted, preferred the plaintiff's version in material respects.

On the question of whether the Civil Liability Act 2002 applied, the court determined that the defendant's conduct fell within s 3B(1)(a) as an intentional act intended to cause injury to the plaintiff. This meant the plaintiff's damages were assessed at common law rather than under the statutory scheme, which carries caps on certain heads of damage. The distinction is significant: under s 3B, the Act's limitations on damages do not apply to intentional torts of this kind.

The court accepted that the plaintiff suffered a genuine psychiatric or psychological condition and that the defendant's conduct materially contributed to that condition. However, the court carefully examined the competing expert evidence, weighing multiple medico-legal reports, and made findings that were measured rather than adopting the plaintiff's case at its highest. The court also considered whether a subsequent third-party attack on the plaintiff aggravated her condition or extended its duration, and took that into account in the damages assessment.

The plaintiff's claims for economic loss in respect of her investment properties were addressed, though the court's treatment of those claims in the excerpts provided indicates scrutiny of remoteness and causation. The court awarded aggravated damages, reflecting the defendant's conduct and its impact on the plaintiff, and made an award of exemplary damages. The total judgment entered was $79,790, with the defendant ordered to pay the plaintiff's costs on the ordinary basis.

Orders Made

  • Verdict and judgment for the plaintiff in the sum of $79,790.
  • Entry of judgment deferred to allow the parties to address any claim for pre-judgment interest under s 100 of the Civil Procedure Act 2005 (NSW).
  • The plaintiff was directed to file written submissions (no more than 5 pages) on any interest claim within 3 days; the defendant was given 3 days to respond or indicate agreement.
  • Any disputed pre-judgment interest question to be determined on the papers, with judgment entered following that determination.
  • The defendant to pay the plaintiff's costs as agreed or assessed on the ordinary basis.
  • Any party seeking a variation to the costs order to file a notice of motion under r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW), with written submissions not exceeding 7 pages, and the other party to respond within 7 days.

Key Takeaways

  • The District Court confirmed that where a defendant's tortious conduct falls within s 3B(1)(a) of the Civil Liability Act 2002 as an intentional act intended to cause injury, the Act's damages limitations do not apply and damages are assessed at common law.
  • Credibility was central to the outcome: the court carefully weighed the parties' competing accounts and the corroborating evidence before making factual findings on each alleged incident.
  • A subsequent attack on a plaintiff by a third party does not automatically sever the causal connection between the defendant's original tortious conduct and the plaintiff's condition; its relevance turns on whether it aggravated or extended the injury caused by the defendant.
  • Both aggravated and exemplary damages were available and awarded in this intentional tort context, reflecting the nature and deliberateness of the defendant's conduct toward a neighbouring resident.
  • Where a plaintiff alleges economic loss flowing from an intentional tort, causation and remoteness remain live questions; the court assessed the plaintiff's investment property claims on their specific facts rather than treating them as a straightforward consequence of the defendant's conduct.

Legislation and Cases Referenced

Legislation:
- Civil Liability Act 2002 (NSW), ss 3B, 11, 21, 28
- Civil Procedure Act 2005 (NSW)
- Crimes Act 1900 (NSW)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9(1)(b)
- Evidence Act 1995 (NSW), ss 79, 140
- Uniform Civil Procedure Rules 2005 (NSW), r 36.16(3A)

Cases:
- Briginshaw v Briginshaw (1938) 60 CLR 336 (standard of proof on the balance of probabilities in serious civil allegations)
- Fox v Percy (2003) 214 CLR 198 (appellate approach to fact-finding)
- Fontin v Katapodis (1962) 108 CLR 177 (exemplary damages)
- Darby v Director of Public Prosecutions (2004) 61 NSWLR 558
- Dasreef Pty Limited v Hawchar (2011) 243 CLR 588 (expert evidence admissibility)
- Croucher v Cachia [2016] NSWCA 132
- Carter v Walker [2010] VSCA 340
- Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc (2020) 103 NSWLR 658
- Fagan v Metropolitan Police Commissioner [1969] QB 439 (assault)
- Appleton v Garrett [1996] PIQR 1 (aggravated and exemplary damages in intentional torts)
- Browne v Dunn (1893) 6 R 67 (HL)
- Bennett v Minister of Community Welfare (1992) 176 CLR 408