Citation: Hernandez Ibarzabal v Chavez Soto [2026] NSWDC 44
Court: District Court of New South Wales
Date: 13 March 2026
Judge: Weber SC DCJ
Background
The plaintiff brought proceedings in assault and battery against the defendant following a violent attack at Birkenhead Point shopping centre in Drummoyne on 21 April 2022. Both parties were self-represented at the start of the hearing, and the evidence disclosed a prior history of acrimony between them, including previous Apprehended Violence Orders.
The assault involved the defendant spitting in the plaintiff's face, kicking him in the groin, and then chasing him across the street before grabbing him by the hair, repeatedly punching him with a closed fist, and kicking him in the face and head. The defendant also made homophobic slurs in Spanish throughout the attack. The plaintiff sustained multiple facial lacerations, significant bruising, hair loss, and other physical injuries requiring ambulance transport to Royal Prince Alfred Hospital.
When the court rejected the defendant's application to file a crossclaim, the defendant announced he was abandoning his defence and left the courtroom. The following morning, after the defendant's name was called three times without response, the court proceeded to hear the matter as an assessment of damages.
Legal Issues
- Whether the Civil Liability Act 2002 (NSW) applied to claims arising from intentional torts
- What injuries were causally established by the assault
- Whether general damages, including any aggravated component, should be awarded and in what amount
- Whether future out-of-pocket expenses, including dental treatment costs, had been sufficiently proved
- Whether a separate award of aggravated damages was warranted
- What deduction, if any, was required for prior statutory compensation received under the Victims Rights and Support Act 2013 (NSW)
Decision
Application of the Civil Liability Act
Weber SC DCJ confirmed at the outset that the Civil Liability Act 2002 (NSW) did not apply to the plaintiff's claims. Under s 3B(1)(a) of that Act, its provisions are excluded where the claim is in respect of an intentional act done with intent to cause injury or death. The assessment therefore proceeded outside the CLA framework.
Injuries Established
The court accepted three of the claimed injuries as causally linked to the assault: facial lacerations and permanent scarring (including soft tissue stranding under the right eye and patches of hair loss), a cervical spine injury with radiculopathy confirmed by MRI, and dental injuries including grinding, jaw deviation, and a displaced disc. However, the plaintiff's claim for olfactory nerve injury (loss of smell and taste) was disallowed because no evidence established a causal connection between that condition and the assault.
Damages Quantification
General damages of $50,000 were awarded for pain, suffering, and the established physical consequences of the assault. The court declined to make a separate award of aggravated damages. Weber SC DCJ held that the circumstances relied upon by the plaintiff (humiliation, fear of further attack, and public exposure while covered in blood) were already captured within the general damages award rather than warranting a discrete additional sum.
Out-of-Pocket Expenses
The plaintiff's claim for $20,000 in future dental and periodontal expenses was disallowed for want of proof. However, recognising the plaintiff's self-represented status, the court allowed $6,240 for occlusal dental treatment as past and future out-of-pocket expenses, supported by the plaintiff's affidavit. The $5,000 previously received under the Victims Rights and Support Act 2013 (NSW) was deducted from the general damages award, producing a net general damages figure of $45,000.
Orders Made
- Judgment and verdict for the plaintiff against the defendant in the sum of $51,240
- Interest on that sum at applicable rates pursuant to s 100 of the Civil Procedure Act 2005 (NSW)
- The defendant to pay the plaintiff's costs
Key Takeaways
- Under s 3B(1)(a) of the Civil Liability Act 2002 (NSW), the Act's provisions do not apply to claims founded on intentional torts such as assault and battery, meaning damages are assessed at common law without the CLA's caps or thresholds.
- Causal connection between an assault and a claimed injury must be established by evidence; the District Court disallowed the olfactory nerve injury claim precisely because no such evidence was led.
- Aggravated damages are not automatically awarded merely because an assault was humiliating or fear-inducing. Where the circumstances of aggravation do not go beyond what is already reflected in a general damages award, a separate aggravated component may be subsumed rather than awarded distinctly.
- Statutory compensation received under the Victims Rights and Support Act 2013 (NSW) must be brought to account and deducted when assessing civil damages for the same harm.
- Where a self-represented plaintiff fails to press a large out-of-pocket claim or provide sufficient proof, courts may still allow a more modest and evidenced subset of that claim rather than disallowing the head of damage entirely.
Legislation and Cases Referenced
Legislation
- Civil Liability Act 2002 (NSW), s 3B(1)(a)
- Civil Procedure Act 2005 (NSW), s 100
- Victims Rights and Support Act 2013 (NSW)
Cases Cited
No cases were cited in the judgment.