Balven v Thurston

Supreme Court of NSW|2012-12-03|Before: Latham J

The Application of the Civil Liability Act. 41Given the plaintiff's success on ground 3, the application of the Act does not fall to be determined. However, it is appropriate that I provide some brief reasons for coming to the conclusion that the Act did not apply in the circumstances of the assault allegations. 42Section 3B of the Act relevantly provides :- (1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows: (a) civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person. 43"Injury" is defined in relation to damages under the Act to include personal injury and includes impairment of a person's physical or mental condition (s 11). Part 3 of the Act limits the recovery of damages for "pure mental harm", although that is of no relevance to the question posed by s 3B(1). 44There can be no doubt that the plaintiff sent the messages on 11 March and 6 April intentionally. Whether in so doing he was intending to cause an impairment of the defendant's mental condition was a question of fact for the magistrate. The plaintiff's intention in that regard was to be inferred from the circumstances surrounding the sending of the messages and the content of the messages themselves. There is no error disclosed by the magistrate's reasons in determining that the plaintiff had that intention. 45In every relevant respect, the allegation of an intentional act calculated to cause an apprehension of physical violence in this case is on all fours with the reasoning in State of NSW v Ibbett [2005] NSWCA 445, where it was held that the Act was excluded. 46Having regard to the plaintiff's failure on this ground, there is no need to deal with ground 4.1. 47A related aspect to this ground is the question of the admissibility of the expert report. It went to the assessment of the defendant's mental harm for the purposes of damages with respect to the alleged assaults. While it is not strictly necessary to determine this issue, there was no error in admitting the report. Whatever the discrepancies between the defendant's history and that provided by her to the doctor, it was a matter for the magistrate to ascribe such weight to the report as he thought appropriate in all the circumstances.

Damages. 48The above findings require the award of damages for the assaults to be set aside. The award of damages for the acts of trespass remain, but given the global award made by the magistrate, it is not possible to determine what proportion of the general and/or aggravated damages are referable to those torts. Having regard to the relatively short duration of the plaintiff's interference with the defendant's possession of her land, I would expect damages to be of a modest nature, even allowing for some component of aggravated damages arising out of the plaintiff's behaviour. 49The plaintiff has been partially successful in the appeal. In those circumstances, it is appropriate that each party bear their own costs on the appeal.

Orders 50It would have been desirable, given the long and unsatisfactory history of these proceedings, not to mention the maintenance of continuing hostilities between the parties by the prosecution of this appeal, to have finally determined the matter by the disposition of the appeal. However, the Court's powers under s 75(1) of the Local Court Act 1982 are to some extent limited. 51Accordingly, I make the following orders :- (1)The judgment of the magistrate of 26 October 2011 on the liability of the plaintiff for assault is set aside. (2)The judgment and order of the magistrate of 13 April 2012 is set aside. (3)The matter is remitted to the magistrate for determination of an award of damages for trespass in accordance with these reasons. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 June 2013

Disposition. 27Grounds 1 and 5 do no more than traverse findings of fact by the magistrate. They raise no error of law or mixed fact and law. 28There is no appeal to this Court from the Local Court on questions of fact. A wrong finding of fact, even a perverse finding of fact that is against the weight of the evidence, does not elevate such an error into an error of law. In Australian Gaslight Co v Valuer-General (1940) 40 SR (NSW) 126, Jordan CJ summarised the relevant principles thus (at 138) : - (3) A finding of fact by a tribunal of fact cannot be disturbed if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its finding, and there is evidence capable of supporting its inferences. (4) Such a finding can be disturbed only (a) if there is no evidence to support its inferences, or (b) if the facts inferred by it and supported by evidence are incapable of justifying the finding of fact based upon those inferences, or, (c) if it has misdirected itself in law. 29See also Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; Mahony v Industrial Registrar of New South Wales & Anor. (1986) 8 NSWLR 1; Haines v Leves & Anor. (1987) 8 NSWLR 442; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Gangemi Holdings Pty Ltd v Salter [1999] NSWSC 1004; Carr v Neill [1999] NSWSC 1263; State Rail Authority v Smith [2000] NSWSC 334. 30Grounds 1 and 5 complain of the questionable reliability of the defendant's evidence underpinning the magistrate's findings. Questions of reliability and weight are central to fact finding. 31Ground 5.1 is misconceived. The magistrate found that the plaintiff deliberately drove his motor vehicle into the garage door. It is clear from the evidence that the plaintiff's motor vehicle intruded into the defendant's garage, albeit slightly. It has never been doubted that "every invasion of private property, be it ever so minute, is a trespass." : Entick v Carrington (1765) 19 St. Tr. 1029 at 1066 : Plenty v Dillon (1990 -1991) 171 CLR 635 at 639. 32Grounds 2 and 3 raise errors of law in the application of the tort of assault to the facts of the case.

The Tort of Assault. 33At common law, an assault consists of an intentional act which creates in another person an apprehension of imminent harmful or offensive contact : see "The Law of Torts", John G Fleming, 7th ed. at p 24. 34Despite some controversy as to whether or not mere words could ever constitute an assault, it has been accepted that a threat of physical harm which is not accompanied by any physical contact, such as a threat made by electronic means, is capable of constituting an assault provided that the threat is to inflict immediate physical harm : Knight v The Queen (1988) 35 A Crim R 314 ; Slaveski v State of Victoria & Ors. [2010] VSC 441. 35In Knight, Lee J (Carruthers and Loveday JJ agreeing) overturned convictions for assault on the basis that the threats by telephone were not threats of immediate violence. It is the threat itself that must demonstrate the imminence of the physical harm. It is not sufficient that the recipient of the threat immediately apprehends some harm on hearing the threat. 36Returning to the instant case, the magistrate's reasons in relation to the assault of 11 March 2010 were :- On 11 March 2010 when she received the threat I accept that she was in fear as a result of the words. ... Clearly there was no battering. In view of the [plaintiff's] past, his mental difficulties, her knowledge of his training, experience and erratic behaviour I find that she apprehended reasonably immediate physical contact from the [plaintiff]. He did not live far away. He would arrive at her house from time to time unexpectedly. He had followed her around. 37The terms of the message (see [9] above) did not convey any temporal immediacy to the threat. No doubt it was partly for that reason that the magistrate focussed on the defendant's knowledge of the plaintiff's military background, his mental health issues and proximity to her home in order to reach the conclusion that he did. It is unfortunate however that his Honour framed the commission of the tort by reference to the defendant's apprehension. I unreservedly accept that such was her fear, but the threat itself was expressed in an indeterminate manner. The plaintiff did not say that the defendant would die if he did not receive the money by a specified time. 38The assault of 6 April was similarly characterised. The magistrate said :- In relation to the assault the background matters known by the [defendant] about the [plaintiff] must be borne in mind. His behaviour was by his own admission increasingly erratic. He was threatening harm. He had already entered her property without consent and damaged and destroyed her property on 5 April. He then trespassed again on 6 April and again, having taken her property sent an SMS saying in effect that he would burn down her house while she slept in it. I find that she apprehended reasonably immediate physical contact from the [plaintiff]. 39The terms of this message suggested some future indeterminate time when the defendant was asleep. The acts of trespass committed by the plaintiff on that day and the previous day demonstrated that the plaintiff could enter the premises at will, but that fact bore no necessary relationship to the infliction of harm upon the defendant. Once again, the tort was framed by reference to the defendant's apprehension, not the objective terms of the threat. 40For these reasons, I would uphold ground 3 of the appeal. While it is not strictly necessary to decide ground 2, I am not persuaded that, in the circumstances of this case, there is any error in describing the tort in terms of immediate physical contact as opposed to immediate harm. It may have been preferable had the magistrate referred to "immediate harmful contact", but it was abundantly clear from the evidence that the messages conveyed the threat of harm and that the magistrate understood that aspect of the tort.

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