[2011] HCA 53
Australian Guarantee Corporation Ltd v Commissioners of the State Bank of Victoria [1989] VR 617
Bevan v Coolahan (2019) 101 NSWLR 86
[2019] NSWCA 217
Butterfield v Forrester (1809) 103 ER 926
Croucher v Cachia (2016) 95 NSWLR 117
[2016] NSWCA 132
Darby v Director of Public Prosecutions (2004) 61 NSWLR 558
Source
Original judgment source is linked above.
Catchwords
[2008] NSWCA 161
Amaca Pty Ltd v Booth (2011) 246 CLR 36[2011] HCA 53
Australian Guarantee Corporation Ltd v Commissioners of the State Bank of Victoria [1989] VR 617
Bevan v Coolahan (2019) 101 NSWLR 86[2019] NSWCA 217
Butterfield v Forrester (1809) 103 ER 926
Croucher v Cachia (2016) 95 NSWLR 117[2016] NSWCA 132
Darby v Director of Public Prosecutions (2004) 61 NSWLR 558[2004] NSWCA 431
Dickson v Northern Lakes Rugby League Sport and Recreation Club Inc (2020) 103 NSWLR 658[1962] HCA 63
Fox v Percy (2003) 214 CLR 418 [2003] HCA 22
Harrison v Melhem (2002) 72 NSWLR 380[2002] NSWCA 67
Horkin v North Melbourne Football Club Social Club [1983] 1 VR 153
Jones v Dunkel (1959) 101 CLR 298[1959] HCA 8
Lane v R [2013] NSWCCA 317(2013) 241 A Crim R 321
Lee v Lee (2019) 266 CLR 129
[2019] HCA 28
Lim v Cho [2018] NSWCA 145 at [41]
84 MVR 514
McHale v Watson (1964) 111 CLR 384
[1964] HCA 64
Miller Heiman Pty Ltd v Sales Principles Pty Ltd (2017) 94 NSWLR 500
[2017] NSWCA
Palmer v Clarke (1989) 19 NSWLR 158
Presidential Security Services of Australia Pty Ltd v Brilley (2008) 73 NSWLR 241
[2008] NSWCA 204
Pritchard v Co-operative Group Ltd [2012] QB 320
[2011] EWCA Civ 329
Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22
(2016) 90 ALJR 679
Sangha v Baxter [2007] NSWCA 264
Sangha v Baxter [2009] NSWCA 78
[2003] NSWCA 208
Stingel v Clark (2006) 226 CLR 442
[2006] HCA 37
Suttor v Gondowda (1950) 81 CLR 418
Judgment (13 paragraphs)
[1]
Background facts
Shortly before 5pm on 23 July 2014 the appellant was at his home in St Clair. Adjacent to his house was a public reserve. On 18 July the respondent and/or his brother, Ronald, had asked the appellant if they could park a vehicle, being a hire car, at the back of the reserve behind the appellant's home. The appellant agreed, although I am not sure why the respondent needed to obtain his agreement.
The car remained in situ until 23 July 2014, when the respondent turned up at the appellant's home. The respondent approached the appellant saying something to the effect that if the drugs weren't back in his car he would be coming back with a gun and killing him and his son and daughter.
Although the appellant was a user of drugs, there is no evidence that he took any drugs from the parked car. He did not have the keys to the car.
Following this threat, the appellant rang Ronald and had a further conversation with Ronald about the threat.
After that conversation, the appellant walked out of his home and towards the car which the respondent had by then accessed. The driver's door was open. The appellant grabbed the respondent by the scruff of the neck and punched him twice in the head. The respondent did not respond physically but apologised to the appellant for the threat he had made to him earlier.
Shortly thereafter and following some further discussion between the two men and whilst the appellant was still standing adjacent to the open door of the vehicle, the respondent put the vehicle in reverse and accelerated. The appellant took hold of the frame of the door and the roof. Although his feet initially dragged along the ground, he was able to step up to the door sill and cling to the roof. After about 10 metres, the appellant yelled to the respondent to "stop the fucking car". The respondent laughed and said, "jump fucker". The appellant says that the respondent then turned the steering wheel sharply to the right with the result that the appellant was thrown from the vehicle and landed down on the bank of an adjacent creek and suffered injury.
The appellant sought damages from the respondent both based on an intentional tort (although not specified which but assumed to be battery) and in negligence.
Whilst the primary judge accepted that the respondent was negligent, he did not accept that the appellant had established that the respondent intended to hurt the appellant. Further, the primary judge accepted that the respondent had established the defences under s 53 and s 54 of the Civil Liability Act 2002 (NSW) (CLA).
The primary judge also found that the plaintiff was guilty of contributory negligence and that damages should be discounted by 70%. His Honour assessed damages in the sum of $132,279.16 before discount.
As identified by the appellant, there are four issues for determination on this appeal which may be conveniently described as:
1. Failure to give reasons (appeal ground 1)
2. Intentional tort (appeal grounds 2, 3, 4, 5 and 6)
3. Statutory defences (appeal ground 7); and
4. Contributory negligence (appeal ground 8).
I will deal with these issues with reference to the appeal grounds and under these four broad headings.
[2]
Failure to give reasons - ground 1
The essence of ground 1 is that, as the primary judge did not deliver his reasons when pronouncing judgment on 18 December 2020, as a matter of law, the judgment must be taken to have been made without reasons. As such, the judgment should be set aside and the matter should be remitted to the District Court for a new trial.
As set out in the Notice of Appeal, ground 1 originally contained an assertion that the judgment is null and void. However, during argument, it emerged that the appellant wishes for this Court to remit only the question of liability back for a new trial. The appellant submits that, as there is no dispute on damages, it is not necessary to remit the damages issues back for a new trial.
During the course of the hearing, the appellant sought and was granted leave to amend ground 1 to delete the reference to the judgment being null and void.
Although the primary judge did not give judgment until nearly two and a half years after the trial in June 2018, the appellant does not raise that delay as a specific appeal point. Rather, the appellant says that as the District Court is a court of statutory jurisdiction rather than a court with inherent jurisdiction, the primary judge had no power to make orders and give reasons sometime later. The primary judge was required to comply with the common law duty to give reasons at the same time as giving judgment, except to the extent as modified by legislation.
The appellant points to r 36.2 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) as governing the obligations of the primary judge. The appellant says that as the primary judge did not read out the reasons for his judgment, he was obliged to provide a written copy of the judgment at the same time or virtually immediately thereafter.
In circumstances in which the appellant says that the primary judge did not do so, he must be taken to have given no reasons and the matter should be remitted for a new trial. The appellant points to Palmer v Clarke (1989) 19 NSWLR 158 ("Palmer") as mandating that result.
The respondent submits that the short period between the giving of the judgment and the reasons makes this case distinguishable from the approach set out in Palmer.
The respondent submits that the delay in this case was of no moment. It did not interfere with the appellant's ability to bring an appeal and issues raised in Palmer such as questions of interest do not arise.
[3]
Consideration
Firstly, I do not think that this Court could separate parts of the judgment, so as to achieve that which the appellant wants, being to keep the damages assessment but have a rehearing on liability issues.
If, on the appellant's argument, reasons were not given on the liability issues, so too reasons were not given on the damages issues.
Of course, the parties might agree on damages but the respondent indicated that there is no agreement on damages and the respondent does not accept that only part of the judgment should be remitted for retrial.
It is not necessary to say anything further on this point as I have determined that the appellant fails on ground 1.
The hearing took place in the District Court over five days being 18 to 22 June 2018.
At 3.30pm on Friday 18 December 2020, the primary judge handed down the judgment and ordered the plaintiff to pay the defendant's costs.
As set out in the transcript of that day, his Honour indicated that he had determined the case on the basis that the defences under ss 52, 53 and 54 of the CLA are sustained (although the reference to s 52 must have been inadvertent as his Honour did not find that the defence under s 52 had been made out) and also determined that damages should be discounted by 70% on account of the plaintiff's contributory negligence. His Honour then said:
"As a consequence of my findings, for reasons that are lengthy and that I will publish by which I do not intend presently to read but which will be sent to you on Monday, the orders that I make in these proceedings are as follows …"
His Honour did not forward his reasons the next working day but at 5.39pm on Thursday 24 December 2020 his Honour's associate forwarded an email to the parties attaching what was described as the judgment. That document comprises 64 pages and is in standard form. The date of the orders is recorded as 18 December 2020 and the date of the decision is recorded as 24 December 2020.
Of course, a delay of nearly two and a half years between reserving judgment and the delivery of judgment must be viewed as unacceptable but the appellant does not submit that the very lengthy delay otherwise impacted upon the outcome. It is the delay between making the orders on 18 December and providing the reasons on 24 December about which the appellant complains.
[4]
The claim in intentional tort - grounds 2,3, 4, 5 and 6
The appellant seeks to challenge certain findings of fact by the primary judge's, particularly as they inform the finding that the respondent did not drive in such a manner with the intention of causing injury to the appellant.
The focus on the intent of the respondent as he turned the steering wheel sharply arose out of the appellant's pleading that "the accident was caused by the defendant's negligence and/or intentional conduct".
In the statement of claim, the appellant did not otherwise specify the nature of the intentional tort but the case appears to have proceeded on the basis that such conduct of the respondent, if accepted, would constitute battery. The case was argued on the facts and the primary judge determined the outcome of the pleading of intentional tort on the facts rather than any close analysis of the elements of tort.
Battery is a form of trespass to the person: Croucher v Cachia (2016) 95 NSWLR 117 at [20] (Leeming JA); [2016] NSWCA 132 ("Croucher"). It may be described as an intentional tort but may also occur when the defendant is merely negligent: Croucher at [22] (Leeming JA). However, even though a cause of action in battery may be established out of either intentional or merely negligent conduct, the distinction is important in a matter such as this having regard to s 3B(1)(a) of the CLA.
Section 3B is relevantly in the following terms:
3B Civil liability excluded from Act
(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 - the whole Act except -
(ia) Part 1B (Child abuse - liability of organisations), and
(i) section 15B and section 18(1) (in its application to damages for any loss of the kind referred to in section 18(1)(c)), and
(ii) Part 7 (Self-defence and recovery by criminals) in respect of civil liability in respect of an intentional act that is done with intent to cause injury or death, and
(iii) Part 2A (Special provisions for offenders in custody),
It follows that the provisions of the CLA do not apply to the civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death. That is the appellant's case.
[5]
Jones v Dunkel Inference
The respondent did not give evidence and indeed the only evidence as to what the respondent did or said or may have thought (other than the appellant's evidence) came from the Police Officer, Senior Constable Buttigieg, his notes, the COPS report and Senior Constable Buttigieg's oral evidence.
The appellant complains that the primary judge did not draw a Jones v Dunkel inference against the respondent: see Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 ("Jones v Dunkel").
That is so but nor did the appellant refer to Jones v Dunkel in his submissions in the Court below. That may not necessarily be determinative as in some cases, particularly those involving contested facts, the need to draw a Jones v Dunkel inference having regard to the failure of a party to give evidence might be obvious.
However, it is also important to bear in mind the limits of such an inference. In Lim v Cho [2018] NSWCA 145; (2018) 84 MVR 514, Sackville JA explained at [41]:
"It allows an inference that evidence not called by a party would not have assisted that party, but not that the evidence would have been adverse to that party. Nor does the rule enable a party to fill gaps in the evidence by relying on the absence of a witness the other party might have called. Until the plaintiff proves facts from which an inference of negligence can be drawn, the defendant is not called upon to say anything. More generally, no inference can be drawn unless evidence is given of facts requiring an answer."
In this case, the only inference would be that the evidence of the respondent would not have assisted his case.
Further, his Honour did not ignore the absence of the respondent and could not have been unaware of the possibility of a Jones v Dunkel inference. The respondent raised the issue in his submissions on the hearing which were given before the appellant's submissions. The respondent submitted that a Jones v Dunkel inference was not available because of the circumstances in which the respondent did not give evidence and the objection of the appellant to the respondent's statement being admitted into evidence without him being available for cross-examination.
The circumstances in which the respondent did not give evidence are set out in his Honour's judgment. His Honour refers to the application for an adjournment to enable the respondent to attend, which was supported by an affidavit from the solicitor for the respondent directed to the efforts that have been made to contact the respondent. Arrangements had been made for the respondent to attend but he had failed to attend.
[6]
Path of vehicle
His Honour accepted that the vehicle was reversing towards the bank of Byrnes Creek (the creek) and that the likely explanation for the sudden change of direction was the realisation (by the respondent) that the vehicle was heading towards the creek, coupled with an overcorrection of the steering wheel, leading to the spin that occurred that caused the plaintiff to fall from the vehicle.
I take this to mean that his Honour considered that the most likely explanation for the sudden movement of the vehicle causing the plaintiff to fall from the vehicle was that the respondent realised that he needed to turn quickly and perhaps overcorrected to avoid the vehicle going into the creek, as his Honour did not accept that the respondent so drove the vehicle as to deliberately cause harm to the appellant.
The appellant's primary contention is that the findings of the primary judge as to the intent of the respondent are infected by his Honour's misunderstanding of the appellant's evidence. That is, whilst the primary judge accepted that the vehicle was reversing towards the creek and thus that the respondent needed to turn sharply to avoid it, the appellant's evidence was that he was not reversing towards the creek before he steered the vehicle in that direction.
The appellant submits that the vehicle in fact crossed the creek at the early part of its journey and travelled away from the creek. It was only the sharp steering that caused it to be marooned on the bank of the creek.
Whilst the diagram in the COPS document is not as clear as the appellant might suggest, the Police Officer accepted in cross-examination that the physical evidence, being the marks in the dirt, revealed a distinct pattern that showed the vehicle had taken a very sudden and significant turn. It was travelling in one direction and all of a sudden it took a significant turn of 180 degrees. The vehicle became marooned close to where the turn took place.
Although the appellant submits that all of the appellant's evidence, the Police diagram and the photographs support his contention as to some different trajectory of the vehicle, that is not necessarily so. Firstly, I do not consider that the appellant's evidence is necessarily inconsistent with the primary judge's finding on the direction of the vehicle before it took a sharp turn. Secondly, the Police diagram is not inconsistent with the primary judge's finding. Thirdly, the photographs are so obscure as to be of little use.
[7]
Intent to cause injury
However, that is not the end of the issue as, irrespective of any finding as to the direction in which the vehicle was travelling prior to undertaking the sharp turn, it is necessary to consider not just the trajectory of the vehicle but all of the circumstances existing at that time.
His Honour stated that "the realisation" (meaning the possibility of the respondent realising that he needed to change course) coupled with an overcorrection could explain the spin that occurred.
There was no evidence from the respondent and his Honour seems to have inferred that this realisation may have occurred.
However, there is a difference between drawing an inference from proven facts and conjecture. In Lane v R [2013] NSWCCA 317; (2013) 241 A Crim R 321, the Court (per Bathurst CJ, Simpson and Adamson JJ) explained at [109]-[110]:
"The answer to that question lies in the distinction, which is a very real one, between inference and speculation. In Seltsam Pty Ltd v McGuiness; James Hardie & Coy Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262, Spigelman CJ considered this very question. He acknowledged that it is often difficult to distinguish between permissible inference and conjecture. Quoting from Jones v Great Western Railway Co (1930) 144 LT 194, his Honour adopted a definition of inference as "a deduction from the evidence" which, if reasonable, may have the validity of legal proof.
He referred also to Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152, quoting as follows:
"Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture"..."
In my view there are no objective facts which would support such an inference. Nothing in the Police notebook could support such an inference because the respondent stated that after being hit with a bit of wood or pole or something, the next thing he remembered was getting out of the car when it was in the ditch.
[8]
The statutory defences - ground 7
As specified in s 3B of the CLA, even in respect of injury caused by intentional conduct, Pt 7 of the CLA applies.
The provisions of Pt 7 preclude or limit the awarding of damages in certain circumstances, including when the acts of the defendant are carried out in self-defence and when the injuries occur during or following conduct which would constitute a serious offence.
The trial judge found that although all of the elements of s 52 were not satisfied, having regard to s 53, damages could not be awarded. Further, his Honour found the appellant was precluded from being awarded damages having regard to s 54.
The appellant submits that neither s 53 nor s 54 apply in the circumstances. In particular, the appellant submits that the primary judge erred in:
1. Finding that the respondent believed that his conduct was necessary to defend himself, which was a prerequisite to the operation of s 53;
2. Finding that the appellant's conduct materially contributed to his injury; and
3. Not finding that the conduct of the respondent that caused the injury constituted an offence (such that s 54 would not apply).
[9]
Section 52 CLA
Section 52 of the CLA is (relevantly) in the following terms:
52 No civil liability for acts in self-defence
(1) A person does not incur a liability to which this Part applies arising from any conduct of the person carried out in self-defence, but only if the conduct to which the person was responding -
(a) was unlawful, or
(b) would have been unlawful if the other person carrying out the conduct to which the person responds had not had a mental health impairment or a cognitive impairment at the time of the conduct.
(2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary -
(a) to defend himself or herself or another person, or
(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
(c) to protect property from unlawful taking, destruction, damage or interference, or
(d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,
and the conduct is a reasonable response in the circumstances as he or she perceives them …
Section 52 directs attention to a liability arising from conduct of a person (being the respondent) carried out in self-defence.
Section 52(2) specifies the circumstances in which a person carries out conduct in self-defence. Firstly, it is necessary that the person (that is, the person carrying out the conduct):
1. Believes that the conduct is necessary to defend himself or herself (or for other reasons not relevant to this case); and
2. The conduct is a reasonable response in the circumstances as he or she perceived them.
The first requirement is subjective, that is, it is the belief of the person acting in self-defence that is relevant. The second requirement is partly objective and partly subjective in that the conduct must be a reasonable response in the circumstances as the person perceived them.
The onus is on the defendant to prove the circumstances which give rise to the operation of s 52 (or s 53 or s 54): Presidential Security Services of Australia Pty Ltd v Brilley (2008) 73 NSWLR 241 at [162] (Ipp JA); [2008] NSWCA 204 ("Presidential Security Services Pty Ltd").
The primary judge found that:
1. The respondent believed that his conduct was necessary to defend himself; but
2. The conduct was not a reasonable response in the circumstances as he perceived them.
[10]
Section 53 CLA
The primary judge went on to find that s 53 of the CLA applied. Section 53 is in the following terms:
53 Damages limitations apply even if self-defence not reasonable response
(1) If section 52 would operate to prevent a person incurring a liability to which this Part applies in respect of any conduct but for the fact that the conduct was not a reasonable response in the circumstances as he or she perceived them, a court is nevertheless not to award damages against the person in respect of the conduct unless the court is satisfied that -
(a) the circumstances of the case are exceptional, and
(b) in the circumstances of the case, a failure to award damages would be harsh and unjust …
As the primary judge found that s 52 would not operate only because the conduct was not a reasonable response in the circumstances as the respondent perceived them, then s 53 applies as a preclusion to the awarding of damages in favour of the appellant unless the Court is satisfied that:
1. The circumstances of the case are exceptional; and
2. In the circumstances of the case, a failure to award damages would be harsh and unjust.
The primary judge made no finding that the circumstances were exceptional or that it would be harsh and unjust not to award damages.
The focus of this appeal is on the finding as to the respondent's belief, as without such a finding s 53 could not apply.
In the circumstances, the appellant challenges the primary judge's finding as to that belief. Although the respondent did not give evidence, the primary judge accepted that the absence of evidence from the respondent was not necessarily fatal, accepting that a subjective state of mind may be inferred from circumstances other than the person's own statement as to his perceptions: Sangha v Baxter [2009] NSWCA 78 ("Sangha") at [153] (Basten JA); (2009) 52 MVR 492; Croucher at [104] (Leeming JA).
The primary judge pointed to a number of circumstances as giving rise to the inference that the respondent believed his actions in reversing the vehicle were necessary to avoid being punched and the means of defending himself on the prospect of the further assault. Those circumstances include:
1. The evidence of Senior Constable Buttigieg; and
2. The evidence as to the events immediately before the respondent reversed his vehicle, including the plaintiff's evidence that the respondent did not defend himself from the appellant's punches and that they had been engaged in an angry exchange.
[11]
Section 54 CLA
Another basis on which the primary judge declined to award damages is s 54 of the CLA. Section 54 is in the following terms:
54 Criminals not to be awarded damages
(1) A court is not to award damages in respect of liability to which this Part applies if the court is satisfied that -
(a) the death of, or the injury or damage to, the person that is the subject of the proceedings occurred at the time of, or following, conduct of that person that, on the balance of probabilities, constitutes a serious offence, and
(b) that conduct contributed materially to the death, injury or damage or to the risk of death, injury or damage.
(2) This section does not apply to an award of damages against a defendant if the conduct of the defendant that caused the death, injury or damage concerned constitutes an offence (whether or not a serious offence).
Note -
Sections 52 and 53 can apply to prevent or limit recovery of damages even though the defendant's conduct constitutes an offence.
(3) A serious offence is an offence punishable by imprisonment for 6 months or more.
(4) This section does not affect the operation of the Felons (Civil Proceedings) Act 1981.
(5) This section operates whether or not a person whose conduct is alleged to constitute an offence has been, will be or is capable of being proceeded against or convicted of any offence concerned.
Section 54 operates to preclude the Court from awarding damages. It is not directed at the liability of the respondent: Presidential Security Services Pty Ltd at [124] (Ipp JA); Bevan v Coolahan (2019) 101 NSWLR 86 at [23] (Basten JA); [2019] NSWCA 217 ("Bevan v Coolahan").
The primary judge accepted that the injury suffered by the appellant occurred following his assault on the respondent. His assault constituted an offence under s 61 of the Crimes Act 1900 (NSW) and thus would fall within the definition of serious offence set out in s 54(3).
The appellant's challenge to the finding of the primary judge is twofold, being:
1. His Honour erred in finding that the assault by the appellant upon the respondent contributed materially to the appellant's injury or the risk of injury; and
2. In any event, s 54(2) is enlivened because the conduct of the respondent that caused the injury constituted an offence (whether or not a serious offence).
Section 54(1)(a) imports a temporal criterion into the section and s 54(1)(b) imports a causal criterion into the section.
[12]
Contributory negligence - ground 8
The primary judge found that the appellant was guilty of contributory negligence and would have reduced damages by 70% on account of that contributory negligence. There are two aspects to ground 8, being:
1. The appellant submits that if he succeeds in his claim in battery the defence of contributory negligence is not available; and
2. Even if he does not or even if it is available, he was not guilty of contributory negligence at all (or presumably he would seek some reassessment).
I have concluded that the primary judge ought to have found that the respondent intended to cause injury to the appellant.
On the appellant's case, there thus can be no reduction for contributory negligence.
The respondent does not agree, suggesting that the position regarding the availability of contributory negligence in the case of intentional infliction of injury is not as definitive as the appellant suggests, referring to the observations of Basten JA in Sangha (at [147]). Further, the respondent submits that the conclusion of the primary judge that the appellant had acted unreasonably, exposing himself to injury was not only open but was compelling. There was a direct link between the serial failures of the appellant to take care for his own safety and the injury that he ultimately sustained.
As by virtue of s 3B(1)(a), the provisions of the CLA do not apply in respect of an intentional act that is done by the person with intent to cause injury or death (with the limited exceptions set out in s 3B(1)(a)(i)-(iii)), s 5R (contributory negligence) does not apply to an intentional tort.
Whether contributory negligence operates as a defence to an intentional tort must thus be considered having regard to the law other than the CLA.
Until statutory modification, contributory negligence operated as a complete defence to a claim in tort: Amaca Pty Ltd v Booth (2011) 246 CLR 36 at [66]-[67] (Gummow, Hayne and Crennan JJ); [2011] HCA 53.
By virtue of s 9 of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) (LRMPA), contributory negligence no longer operates as a complete defence and apportionment between the tortfeasor and the injured person is permitted.
Section 9 is in the following terms:
9 Apportionment of liability in cases of contributory negligence
(1) If a person (the claimant) suffers damage as the result partly of the claimant's failure to take reasonable care (contributory negligence) and partly of the wrong of any other person:
(a) a claim in respect of the damage is not defeated by reason of the contributory negligence of the claimant, and
(b) the damages recoverable in respect of the wrong are to be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage.
(2) Subsection (1) does not operate to defeat any defence arising under a contract.
(3) If any contract or enactment providing for the limitation of liability is applicable to the claim, the amount of damages recoverable by the claimant by virtue of subsection (1) is not to exceed the maximum limit so applicable.
[13]
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: 03 June 2022
Presidential Security Services of Australia Pty Ltd v Brilley (2008) 73 NSWLR 241; [2008] NSWCA 204
Pritchard v Co-operative Group Ltd [2012] QB 320; [2011] EWCA Civ 329
Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22; (2016) 90 ALJR 679
Sangha v Baxter [2007] NSWCA 264
Sangha v Baxter [2009] NSWCA 78; (2009) 52 MVR 492
Sdrolias v Allianz Australia Insurance Ltd [2022] NSWCA 20
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
State of New South Wales v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208
Stingel v Clark (2006) 226 CLR 442; [2006] HCA 37
Suttor v Gondowda (1950) 81 CLR 418; [1950] HCA 35
Tre Cavalli Pty Ltd v The Berry Rural Co Operative Society Limited [2013] NSWCA 235
Venning v Chin (1974) 10 SASR 299
Texts Cited: C Sappideen and P Vines, Fleming's The Law of Torts (10th ed, Thomson Reuters, 2011)
Category: Principal judgment
Parties: Gregory Paul Irlam (Appellant)
Daryl Byrnes (Respondent)
Representation: Counsel:
D Hooke SC with D-L Del Monte (Appellant)
J Catsanos SC (Respondent)
Judgment
SIMPSON AJA: I have read in draft the judgment of Cavanagh J. I agree with the orders proposed, and generally, with his Honour's reasons. I will explain briefly how I come to that view. The relevant facts are outlined in his Honour's judgment, as are the various defences raised by the respondent.
By ground 1 the appellant initially contended that, by reason of the failure of the primary judge to deliver reasons simultaneously with, or immediately following, the pronouncement of the orders, the judgment was "null and void". After argument (and for reasons explained by Cavanagh J) the appellant was given leave to amend the ground to delete the contention that the judgment was null and void. He maintained, however, that the orders were fatally flawed because the delay of 6 days in the delivery of reasons constituted non-compliance with Uniform Civil Procedure Rules r 36.2. As Cavanagh J has explained, r 36.2 does not mandate delivery of reasons simultaneously with pronouncement of orders, but contemplates that there may be some break between the two events. The question then becomes what length of break is permissible before it amounts to non-compliance with the rule such as to invalidate the orders. There can be no definitive answer to that question. What constitutes non-compliance such as to be fatal to the orders will depend on the circumstances of the case. I agree with Cavanagh J, that, in this case, the break between pronouncement of the orders and the publication of reasons did not affect the validity of the orders and that ground 1 therefore fails.
Further, the respondent submits that r 36.2 of the UCPR should be given a broad meaning, particularly having regard to the undesirability of the matter being remitted back to the District Court for a new trial. The respondent submits that there is no guillotine on the timing of the delivering of reasons and that r 36.2 of the UCPR should not be construed in that way.
There is little dispute as to the principles to be applied other than in respect of the meaning to be given to r 36.2 of the UCPR.
The District Court is a Court of record. It has no inherent jurisdiction and its jurisdiction is thus determined by statute.
The primary judge was required to give proper and adequate reasons having regard to the purpose for which such an obligation is imposed by law: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Palmer at 170 (Kirby P).
There is no dispute that the statements made by his Honour on 18 December would not satisfy the requirement to give reasons and it is not necessary to consider that point further. The question which arises in this matter is whether the short delay between making the order for judgment in favour of the defendant and the giving of reasons was permitted under the rules which govern the operation of the Court.
The UCPR permits the publication of written reasons (rather than oral delivery) provided they are given in accordance with r 36.2. Rule 36.2 is in the following terms:
36.2 Written reasons for judgment
(cf SCR Part 40, rule 2; DCR Part 31, rule 9; LCR Part 26, rule 2)
(1) If the court gives any judgment, or makes any order or decision, and its reasons for the judgment, order or decision are reduced to writing, it is sufficient for the court to state its judgment, order or decision orally, without stating the reasons.
(2) After a judgment, order or decision has been stated orally under subrule (1), a written copy of it, including the court's reasons for it, must then be delivered to an associate, registrar or some other officer of the court for delivery to the parties or may instead be delivered directly to the parties.
The appellant relies on this Court's consideration of the principles and an earlier similar but not identical rule in Palmer:
In Palmer, the relevant rule was as follows:
Written opinion
9. Where the Court gives any judgment or makes any order and the opinion of the Court is reduced to writing, it shall be sufficient to state orally the opinion without stating the reasons for the opinion, but the written opinion shall be then given by delivering it to a specified officer of the Court or to the Chief Court Reporter for delivery to the parties.
In Palmer, the delay between making the order and giving the reasons was three months. The Court accepted that that delay was not de minimis. The Court (per Kirby P, Samuels and Priestley JJA) held that the requirements of the District Court Rules must be strictly complied with. The judgment must be given in accordance with the rules. The failure to provide reasons could not be cured on the basis that it was an irregularity: Palmer at 171 (Kirby P).
Both in Palmer and this matter, there was a focus on the meaning of "then". Originally it was found in Pt 31, r 9 of the District Court Rules and now is found in Pt 36, r 2(2) of the UCPR.
Kirby P observed at 169:
"… The duty under the Rules was, the opinion of the court being reduced to writing, then to give the written opinion, by delivering it to the specified officer of the Court for delivery to the parties. The injunction of immediacy implied by the word "then" was not complied with. The requirement of the rule is plain. It appears for good reason. A party is entitled to take immediate advice and decide for himself or herself whether to appeal against the judgment. Interest is running and other incidents attach to the judgment. That is why the Rules and judicial convention have required the immediate supply of reasons with the order made. Sometimes for technical, logistical or other inescapable reasons a very short delay might occur which could be overlooked as de minimis. But a delay of three months certainly does not fall into that category."
Samuels JA agreed with the President, only adding that (at 173):
"… in the District Court Rules, Pt 31, r 9, the word "then" means "at that time" and not "at any time thereafter". The reasons for that provision have been fully explained, if I may say so, by the President. They stem not from any technicality but are generated by the way in which our system of justice operates. The problems which may ensue if the provisions are not observed are unfortunately illustrated in these proceedings."
The appellant submits that the word "then" contained in the new Rule, r 36.2(2) of the UCPR, means "at the time, or virtually immediately thereafter", not "at any time thereafter".
In the end, the dispute between the parties on this issue is a narrow compass.
The appellant does not submit that the reasons must necessarily be given at the same time as the delivery of judgment but rather says that the delay of the type in this matter was not authorised by the rule. For example, the appellant did not press any submission that publication of the reasons on the next day i.e. the Monday, would have been contrary to law but maintains that three days later was too late.
I do not know why his Honour did not publish his reasons immediately having said that he would do so on 18 December. It may be no coincidence that 18 December was the last day of term.
I do not know whether there was a proofing problem, technology problem or problem arising out of his Honour's status as an Acting Judge. Perhaps his Honour overlooked the publication of the reasons between Friday afternoon and Thursday. I would not infer any particular reason as there is no evidence which explains the delay.
Of course, in construing the rule, the ordinary principles of statutory construction apply. The starting point for the ascertainment of the meaning of a statutory provision is the text of the provision considered in the light of its context and purpose: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] (McHugh, Gummow, Kirby and Hayne JJ); [1998] HCA 28.
In my view, there is nothing in Palmer which specifies a guillotine type cut-off between the delivery of judgment and the delivery of reasons. This is made clear by the observations of Kirby P, to which I have already referred, which suggest that some short period between the delivery of judgment and delivery of reasons might be permitted.
His Honour described the period as de minimis and specified that a period of three months would not suffice.
The appellant has not been able to provide the Court with any case where the outer limit of the de minimis period has been specified or where the question has been determined with reference to a matter of days.
The appellant relies on statements made in other cases such as Miller Heiman Pty Ltd v Sales Principles Pty Ltd (2017) 94 NSWLR 500; [2017] NSWCA 106, in which Macfarlan JA observed at [78]:
"Rule 36.2 of the UCPR permits reasons for judgment to be delivered in writing but the rule contains a temporal element which requires the reasons to be published at or about the time that judgment is pronounced: Palmer v Clarke (1989) 19 NSWLR 158. At least in respect of District Court proceedings (the Court not being a superior court of record), reasons not so published must be disregarded. Minor revisions, not changing the substance of the reasons published, are nevertheless permissible: Spencer v Bamber [2012] NSWCA 274 at [169] and Tre Cavalli Pty Ltd v Berry Rural Co Operative Society Ltd [2013] NSWCA 235 at [54]-[58]."
In Tre Cavalli Pty Ltd v The Berry Rural Co Operative Society Limited [2013] NSWCA 235 ("Tre Cavalli") the Court declined to take account of additional reasons published by the trial judge 20 days after reasons were given and judgment entered. Gleeson JA observed at [54] and [57]:
"There are limits within which a judge can correct or add to a draft of orally delivered reasons for judgment. A judge may revise reasons to correct errors and infelicities of expression, or to correct a slip, where the reasons as expressed, do not reflect what the judge meant to say. However, it is not permissible to alter the substance of reasons once given: see Bell v Veigel [2008] NSWCA 36 at [221] per Mason P (Giles and Tobias JJA agreeing).
…
Where additional reasons are not properly given in the exercise of judicial power the course commonly taken is for the appellate court to "disregard" the additional improper reasons: see Todorovic at [53] citing Palmer v Clarke (1989) 19 NSWLR 158 at 170 per Kirby P. See also Talbot-Price v Jacobs [2008] NSWCA 189 at [12] per Ipp JA, referred to by Basten JA in Spencer v Bamber at [13]."
The issue in Tre Cavalli was quite different from the issue in this matter. In this matter, his Honour did not purport to give reasons at the time of delivery of judgment but, rather, said that his reasons were lengthy and that he would publish them by means of sending them to the parties.
Plainly, despite his Honour's summary of the basis of his judgment, his Honour was not intending to give reasons when informing the parties of the judgment.
There may be no coincidence that his Honour convened the Court some time after 3pm on the last day of term. His Honour must have been conscious of the desirability of giving judgment in open Court prior to the end of term. There seemingly may be no coincidence that his Honour forwarded the reasons for judgment at 5.39pm on Christmas Eve. His Honour must have been conscious of the need to publish his reasons before Christmas.
In the end, I am satisfied that the very short delay, without anything else happening in the matter between the delivery of judgment and the date of publication, was permissible in the particular circumstances.
Whilst I acknowledge the observations of, in particular, Samuels JA in Palmer, I take a broader view of UCPR, Pt 36, r 2(2) than his Honour did of the old District Court Rules, Pt 31, r 9. I do not agree that the current rule requires publication of reasons "at that time" and not "at any time thereafter". His Honour's description must be taken to mean at the same time, such that adopting that very strict approach would mean that any reasons published at a different time, presumably even an hour or day later, would have no effect. That could not have been the intention of the legislature.
I do not consider that, in the circumstances of this case, the delivery of reasons days subsequent to the delivery of judgment requires that it be set aside for the following reasons:
1. Any rule of the UCPR must be construed having regard to the overriding purpose of the Civil Procedure Act 2005 (NSW) (CPA) which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: CPA s 56(1);
2. As set out in s 56(2) of the CPA, the Court must seek to give effect to the overriding purpose when it exercises any power given to it by the Act or Rules and when it interprets any provision of this Act or any such Rule. In my view, interpreting r 36.2(2) of the UCPR so strictly would fail to give effect to the overriding purpose of the Rule. The consequences of even such a short delay would be that the matter must be remitted to the District Court for a new trial. That hardly represents just, quick and cheap resolution of the real issues;
3. The rule under consideration in Palmer (being the old rule) is in slightly different terms to the current rule. Rule 36.2(2) of the UCPR commences with "After a judgment, order or decision …". The words "After a judgment" combined with "… must then be delivered" suggests that it is necessary for the reasons to be delivered with a degree of contemporality without specifying the limit of any timeframe that might be permissible;
4. A combination of those words (meaning the differently drafted rule) leaves open the possibility that the reasons may be delivered at some time after delivery of judgment rather than, as Samuels JA said in Palmer, at that time;
5. Further, as observed by Kirby P in Palmer, even on the strict approach in Palmer, a very short delay might occur which could be overlooked as de minimis. As his Honour said, a delay of three months would not fall into that category but, at least in my view, the delay in this matter might be viewed as de minimis;
6. The appellant described the delay as six days but, in reality, the judgment was published late in the afternoon on a Friday, the last day of term, and his Honour delivered his reasons during the Christmas week, that is, on Christmas Eve;
7. The matters referred to in Palmer that justified the necessity for immediacy such as taking immediate advice and the running of interest could hardly apply in this matter. Even allowing for a short extension of time over the Christmas period, the delay was a few days rather than a week or weeks; and
8. Finally, his Honour indicated when delivering judgment that he had prepared his reasons which were lengthy and that he would be publishing them. I would not infer that there was any change in reasons but rather that there was some problem such as referred to by Kirby P in Palmer that led to the short delay in the publication of the reasons.
Remitting any matter back to the original Court for a new trial is a regrettable step, particularly having regard to the considerable expense to the parties and the additional burden on the Court. In my view, the Court should strive to avoid that result where possible. This is particularly so where even the appellant does not wish the whole of the judgment to be remitted for retrial and the other issues raised by the appellant on this appeal can be determined by this Court.
In my view, the delay complained of in this case is de minimis and of no consequence. Even the appellant does not suggest a delay of a day or so would be in breach of r 36.2(2) of the UCPR and it would be somewhat artificial to, as it were, place the guillotine on more than one day.
Each case must depend on its particular circumstances. I am not intending to set some outer limit between the delivery of judgment and the publication of reasons, either in terms of hours or days but, in the particular circumstances of this case, I do not consider that the delay of a few days has the result contended for by the appellant, being that his Honour should be taken not to have given reasons at all and the judgment being set aside.
The appellant fails on ground 1.
The appellant seeks, in particular, to avoid the consequences of any finding of contributory negligence on the basis that the respondent intended to cause injury.
Battery is normally established merely by the proof of direct physical conduct unless the defendant proves that the defendant was "utterly without fault": Croucher at [21] (Leeming JA).
Further, a battery may be committed using an instrument or an object: Darby v Director of Public Prosecutions (2004) 61 NSWLR 558 at [73] (Giles JA); [2004] NSWCA 431 ("Darby"). In Darby, the battery involved the use of a Police dog. Use of a motor vehicle for the purpose of injuring a person would also constitute a battery even though there was no direct physical conduct between the driver of the motor vehicle and the other person: Fagan v Metropolitan Police Commissioner [1969] QB 439 at 444 (James J).
Generally, in an action for trespass to the person, it is the defendant who bears the onus of proving the absence of intent rather than the plaintiff: see Stingel v Clark (2006) 226 CLR 442 at [47] (Gummow J); [2006] HCA 37; McHale v Watson (1964) 111 CLR 384 at 288 (Windeyer J); [1964] HCA 64; Croucher at [24]-[25] (Leeming JA).
However, in the context of the exclusionary provisions in the CLA, it is the plaintiff who must establish that the CLA does not apply: Dickson v Northern Lakes Rugby League Sport and Recreation Club Inc (2020) 103 NSWLR 658 at [46] (Simpson AJA); [2020] NSWCA 294 ("Dickson"). On the appellant's case that means establishing both that the respondent committed an intentional act and that the act was done with intent to cause injury.
There is no issue that the driving of the vehicle was intentional. The issue is whether the respondent drove the vehicle in such a manner that was intended to cause injury. Whilst it has been suggested that injury means the injury the subject of the claim (see Basten JA in Dickson at [15]), I do not consider that it is necessary for a plaintiff to establish that a defendant intended to cause the precise injuries sustained.
In the end, the case was fought not on the basis of any particular consideration of the precise cause of action pursued by the appellant but rather on the basis that the issue of the respondent's intent was relevant to the question of whether the CLA applied and, in particular, whether any judgment in favour of the appellant could be reduced on account of contributory negligence. The arguments in this Court proceeded on the same basis.
Although his Honour did not accept that respondent drove in a manner with the intention of causing injury to the appellant, his Honour did say at [106]:
"I do accept for the present that the reversing of the vehicle had the likely consequence that the open passenger door would strike the plaintiff; the failure of the defendant to stop when the plaintiff was clinging to the moving vehicle and that his failure to steer the vehicle safely are actions that are demonstrative of negligence on his part as the vehicle driver. However, I do not accept that he drove in the manner that he did with the intention to cause injury to the plaintiff."
As the appellant submits, prior to making that finding the primary judge essentially accepted the appellant's version of events. That is, his Honour accepted that:
1. The appellant did punch the respondent twice in the head as he sat in his motor vehicle;
2. There was a gap in time between that assault and the reversing of the motor vehicle and during that gap in time, there was a verbal exchange as described by the appellant, followed by the appellant, because of the stress of the occasion, pausing and either falling to his knees or standing with his hands out as a consequence of the respondent's initial response (that is, the apology);
3. The period of time was more than a few seconds and is likely to have been measured in minutes, although only a few minutes;
4. The respondent then placed his hand on the gear lever putting the vehicle in reverse and reversed the vehicle;
5. The total distance travelled by the vehicle before spinning 180 degrees was 30 to 40 metres;
6. The cause of the 180 degree vehicle spin was a sharp turn of the steering wheel by the respondent;
7. Once the vehicle moved in reverse, the appellant jumped onto the driver's side door and clung to the door and then to the roof of the vehicle before being thrown from the vehicle as a result of that abrupt turn;
8. Whilst clinging to the vehicle the appellant called for it to stop; and
9. In response to the defendant's call for the vehicle to stop, the respondent responded by saying "jump fucker'.
The primary judge did not make a finding that the respondent laughed as he turned the steering wheel but there is no challenge to that evidence and having regard to the primary judge's general acceptance of most parts of the appellant's evidence, there seems no reason why that evidence should not have been accepted.
The appellant opposed the application for an adjournment. In the end, his Honour received some confidential information providing a possible explanation for the failure of the respondent to attend. This led to the appellant withdrawing the objection to the adjournment but, in any event, the respondent did not attend. This led to a further application for an adjournment on behalf of the respondent and the application to tender his statement. Both applications were refused.
The solicitors for the respondent are retained by the compulsory third party insurer. That does not mean that a Jones v Dunkel inference was not available but the failure of the respondent to attend must be viewed in context: Fabre v Arenales (1992) 27 NSWLR 437 at 449-451 (Mahoney JA).
In my view, this is not a case where the failure of the respondent to give evidence was entirely unexplained. It is a case where those representing the respondent made a number of attempts to obtain the respondent's evidence but were not able to do so.
Having regard to the particular circumstances of this case and suggestions of criminal activity and that the respondent had no personal interest in the outcome of the proceedings, his non-attendance may not be that surprising.
In any event, I am satisfied that, in the particular circumstances, there was no error on the part of the primary judge to not draw a Jones v Dunkel inference.
As has often been stated, an appellate court should not interfere with findings of fact unless they are demonstrated to be wrong by "incontrovertible facts or uncontested testimony" or they are "glaringly improbable" or "contrary to compelling inferences": Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22 at [43] (French CJ, Bell, Keane, Nettle and Gordon JJ); (2016) 90 ALJR 679; Lee v Lee (2019) 266 CLR 129 at [55] (Bell, Gageler, Nettle and Edelmen JJ); [2019] HCA 28; Sdrolias v Allianz Australia Insurance Ltd [2022] NSWCA 20 at [11] (McCallum JA).
Having regard to my analysis of the evidence, the finding of fact by the primary judge as to the direction in which the vehicle was reversing prior to doing the 180 degree spin is not glaringly improbable nor demonstrated to be wrong by incontrovertible facts or uncontested testimony.
When asked during his evidence what the respondent told him at the Police station, Senior Constable Buttigieg said that he told him that he blacked out after being hit by a pole or a stick.
It appears that, despite no evidence from the respondent as to his realisation or that he overcorrected, his Honour has concluded that the trajectory of the vehicle prior to the spin permitted an inference that the respondent must have realised that he was heading towards the creek and needed to change course quickly and then overcorrected. As such, his Honour drew two inferences, one as to the respondent's realisation and the other as to the overcorrection.
In my view these inferences were not available on a consideration of all of the evidence. The approach of the primary judge in focusing on why the respondent caused the vehicle to spin 180 degrees at the precise point rather ignores the fact that, prior to the vehicle spinning, the appellant had been hanging onto the vehicle whilst the respondent reversed it, during which time the appellant asked him to stop and the respondent told him to jump.
These facts are clear:
1. The respondent commenced to reverse his vehicle, even though he could have driven forward, whilst the appellant was close to him and adjacent to the open door;
2. The fact of reversing meant that the appellant needed to avoid being hit by the door;
3. The appellant clung onto the vehicle with his feet dragging on the ground for a short period;
4. The appellant then clung onto the roof with his feet on the side whilst the respondent continued to reverse;
5. The appellant asked the respondent to stop but the respondent replied telling him to jump, seemingly laughing at the same time; and
6. After the appellant did not jump the respondent did a sharp turn, not just slightly veering away from the creek bank but doing a 180 degree turn.
His Honour did not consider all of those facts in making a finding as to the intent of the respondent. Nothing said by the respondent to the Police Officer at the time would support the finding that his actions were merely a reflection of trying to veer away from the creek.
With due deference to the primary judge, the evidence simply does not support the finding made and there is a compelling inference to the contrary.
Even if the respondent was trying to escape the appellant or thought it necessary to reverse the vehicle to protect himself or avoid any further assault, he was in fact driving a motor vehicle with someone hanging onto the side. They were not doing it for fun and the appellant was not on some sort of a joy ride.
The respondent could have stopped the vehicle at any time. Instead, he continued to drive the vehicle. If the respondent was not going to stop, the appellant had to be forced off the vehicle sooner or later.
In my view, the compelling inference is that the respondent drove the vehicle in such a manner so as to cause injury to the appellant. That is, once the respondent refused to accede to the appellant's request that he stop, his continued driving of the vehicle could only have been with the intent of forcing the appellant off the vehicle.
Intending to force a person to fall from a moving vehicle must include an intention to injure that person. That is the likely consequence of any person driving a motor vehicle with another person hanging onto the side. Either the driver is going to have to stop to let the person off or the person is going to fall off at some point and most likely suffer injury as a result.
In circumstances in which the respondent refused to stop despite being asked to do so, the compelling inference is that he intended to force the appellant to fall from the vehicle and cause injury. The primary judge erred in not so finding.
As such, s 52 did not operate as a defence to the appellant's claim. There is no notice of contention filed by the respondent in respect of the primary judge's finding that the conduct was not a reasonable response and thus there is no basis on which this Court could find that s 52 applies.
These are matters which the primary judge considered supported what his Honour said was the respondent's statement that he reversed his vehicle to avoid being assaulted.
There is a problem with the reasoning of the primary judge as his Honour has used the surrounding circumstances to support his acceptance that the respondent said he reversed the vehicle to avoid being assaulted. However, it was only Senior Constable Buttigieg who said that the respondent did so state.
The only statement given by the respondent to the Police was a contemporaneous statement contained in the Police notebook. The respondent did not inform the Police at that time that he reversed the vehicle to avoid being assaulted. He was asked why he left the crash scene but not why he was reversing prior to his vehicle becoming stuck.
The respondent did not suggest that, before leaving the crash scene, he had driven the vehicle in such a manner because he thought he was going to be assaulted.
The primary judge's finding as to the statement of the respondent could thus only have been based on the evidence of Senior Constable Buttigieg. In particular, his evidence as follows:
"Q: Did you form a view as to why Mr Byrnes was reversing?
A: He told me that he was reversing to avoid being assaulted and I believed him.
Q: What caused you to believe him?
A: From the - what - the evidence that I had obtained from the scene, it matched what he was telling me and obviously there's a bit of experience, I guess, that comes towards hearing what people say, what happened and whether or not I believe what they're saying."
That evidence was admitted over objection. It was plainly hearsay and included an impermissible expression of opinion. Further, it is clear from the cross-examination of Senior Constable Buttigieg that:
1. He would have expected such a statement to be recorded in his notes if it was made; and
2. His memory would have been better closer to the time.
Senior Constable Buttigeig was asked for an opinion ("Did you form a view") and answered that he was told something. There being no document which contained such a statement, the only basis of Senior Constable Buttigieg's belief that he was told something must have been his recollection. Yet, he agreed in cross-examination that his recollection would have been better closer to the time of the events; that he would usually record anything told to him; and that, in essence with the passing of time, his recollection was unclear.
Of course, the cross-examiner was not in a position to put to the witness that the conversation never took place as the conversation was between the respondent and the Police Officer. However, at the very least, the effect of the cross-examination was that the basis on which Senior Constable Buttigieg would recall such a statement was uncertain. The evidence should not have been admitted whether it took the form of an opinion, what another person said or a more direct statement about something said to Senior Constable Buttigieg.
The other factors referred to by the primary judge as supporting the inference as to the respondent's belief could have no weight. For example, the fact either that the appellant had previously assaulted the respondent or that the respondent actually reversed his vehicle would hardly, of themselves, lead to an inference as to the respondent's belief at the relevant time.
In the circumstances, the primary judge erred in his finding that the respondent believed his conduct was necessary to defend himself. As such, s 52 could not have applied, because the respondent failed to establish both the belief and that his conduct was reasonable. Further, in those circumstances, s 53 could have no application also.
The death or injury must occur at the time of or following the conduct that constituted the serious offence. That conduct must then have contributed materially to the risk of death or injury.
As far as the temporal requirement is concerned, the injury must occur at the time or following the conduct that constituted the serious offence. In my view, those words should be read together and consistently. They import a sense of immediacy and contemporaneity between the injury and the conduct. "[F]ollowing" is used in its temporal rather than causal sense. Just where the link is severed is unclear: Sangha v Baxter [2007] NSWCA 264 at [84] (Young CJ in Eq).
There is also a causal requirement. The plaintiff's conduct must have contributed materially to the injury or risk of injury. There may be an issue as to the meaning of "contributed materially" in s 54(1)(b). Whether this requires the application of the "but for" test or something more may influence the outcome in some matters.
Having regard to the lapse in time of minutes rather than seconds between the punching and the respondent reversing his vehicle, there was obviously an issue as to whether the appellant's conduct materially contributed to his injury.
The respondent submitted in this Court that s 54 would apply if the finding remains that he was driving as he did to avoid being assaulted. As is apparent from this judgment, I have taken a different view.
It is not necessary to determine this point as the respondent was surely engaged in conduct which constituted an offence such that s 54(2) applies. It does not need to be a serious offence. Any offence would deprive a defendant of the benefit of s 54(1). Although the appellant did not identify the precise offence in submissions in this Court, the respondent accepted that, if the Court made the findings which the appellant urged upon the Court, there would be a number of offences which could apply.
Even negligent driving would be an offence within the meaning of s 54(2), subject to the incident happening on a road or road related area: see Road Transport Act 2013 (NSW), s 117(1). Perhaps this is why Basten JA observed in Bevan v Coolahan that s 54 would likely not apply to motor accident claims (at [7]).
No submission was made about whether the area might have been a road related area but, in any event, s 53 of the Crimes Act might be relevant in the circumstances of this matter. It is not necessary to determine which offence might apply having regard to the approach of the parties to the appeal.
I understand that s 54(2) was not raised by the appellant at first instance. However, it is not suggested that the respondent might have adduced further evidence on the hearing or that some other course would have been taken if it had been raised. This Court is in as good a position to consider the argument as the Court below: Suttor v Gondowda (1950) 81 CLR 418; [1950] HCA 35.
In my view, s 54 could have no application having regard to s 54(2). The primary judge's findings as to the application of both s 53 and s 54 must be set aside.
As specified in s 9(1), if the claimant suffers damage as the result partly of the claimant's failure to take reasonable care and partly of the wrong of any other person, the damages that are recoverable are to be reduced to such extent as the court thinks is just and equitable having regard to the claimant's share in the responsibility for the damage.
Wrong is defined in s 8 as follows:
In this Part:
…
wrong means an act or omission that:
(a) gives rise to a liability in tort in respect of which a defence of contributory negligence is available at common law, or
(b) amounts to a breach of a contractual duty of care that is concurrent and co-extensive with a duty of care in tort.
The definition of "wrong" thus does not assist in determining the issue in this matter, as "wrong" is defined with reference to whether a defence is available at common law.
In Horkin v North Melbourne Football Club Social Club [1983] 1 VR 153 ("Horkin"), Brooking J examined the relevant English and Australian authorities in the context of an intentional tort and determined that contributory negligence could not be raised as a defence at common law. His Honour observed at 165:
"Given that one may consider whether it is fair or reasonable to regard the plaintiff as in any real sense the author of his own harm (Alford v Magee, at (85 C.L.R) p. 461), it is easy to understand why the law should, as a matter of policy, withhold the defence in cases of intentional as opposed to negligent trespass to the person and to say with Prosser, Handbook on Torts, 3rd ed., p. 436 that the reason why contributory negligence is no defence where the defendant intended to inflict injury is to be found in the difference between the fault of the defendant and that of the plaintiff; the difference is not merely in degree but in kind, and the social condemnation attached to the fault differs markedly."
Similarly, in State of New South Wales v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208 ("Riley"), Hodgson JA noted with approval the observations in Horkin, stating that "It seems clear that such a defence is not available at common law to a claim for damages for an intentionally inflicted injury" (at [104]).
This was subject to one qualification made by his Honour at [107] as follows:
"… I am inclined to the view that, once some direct interference is established so that an action for trespass does lie, even indirect consequences of that interference can be compensated in the action for trespass (although such action would not lie at all if there was no direct interference but only indirect consequences). However, where there are indirect and unintended consequences of the trespass, I think the better view is that the defence of contributory negligence is available in respect of those unintended consequences."
In Riley the plaintiff pursued a claim for false imprisonment after being unlawfully arrested and transported inside a Police wagon. Whilst inside the wagon the plaintiff threw himself from side to side causing the vehicle to rock and fracturing his wrist. An issue arose as to whether the fracture of the wrist might be viewed as an indirect and unintended consequence of the false imprisonment. His Honour accepted that contributory negligence would be available, limited to such indirect and unintended consequences of the tortious conduct. There are no such indirect and unintended consequences of the intentional conduct in this matter.
Further, in Venning v Chin (1974) 10 SASR 299, Bray CJ held at 317:
"… [I]t is clear that contributory negligence could never be a defence to an intentional tort, or perhaps it would be preferable to say to the intentional consequences of a tort."
In Elite Protective Personnel Pty Ltd & Anor v Salmon [2007] NSWCA 322, the parties agreed that contributory negligence was available as a defence to an intentionally inflicted injury at common law and the matter proceeded on that basis. The parties have not made any such agreement in this matter.
In other cases (see, for example, Sangha at [147] and Croucher at [38]), this Court has not felt it necessary to determine the question of whether contributory negligence could extend to an intentional tort. It is necessary to do so in this case.
In my view, there are good policy reasons why contributory negligence should not be a defence to the intended consequences of an intentional tort such as battery. It would seem somewhat unjust that, at common law, in a contest between a person who intentionally causes injury and a careless injured person, responsibility would rest entirely with the careless injured person, although s 9 LRMPA would now allow for apportionment if the conduct of the tortfeasor fell within the definition of "wrong" in s 8 LRMPA. Allowing a person who intentionally injures another to escape the consequences of his conduct merely because the injured person might have carelessly contributed seems somewhat counterintuitive.
Leaving aside the possibility of contributory negligence being available in respect of the unintended consequences of an intentional act (which might give rise to causal issues in any event), I do not consider that contributory negligence operates as a defence to an intentional tort such as battery.
In the circumstances of this case, the judgment cannot be reduced on account of contributory negligence.
It is unnecessary to then go on and consider whether the apportionment undertaken by the primary judge, based on the negligence of the respondent and the contributory negligence of the appellant, should be set aside or varied.
Having said that, at least in general terms, it may be surprising that the culpability of the pedestrian (that is, the appellant hanging onto the vehicle) was considered much higher than the culpability of the driver of the vehicle who started the vehicle when the appellant was in a position where he might be hit by the door of the reversing vehicle and then continued to drive the vehicle with the appellant holding onto the vehicle and asking him to stop.
In any event, it is not necessary, having regard to my determination, to further consider this issue.
The orders I propose are:
1. Appeal allowed.
2. Judgment of Acting Judge Craig QC of 24 December 2020 set aside.
3. Judgment for the appellant in the sum of $132,279.16.
4. The respondent to pay the appellant's costs in the District Court.
5. The respondent to pay the appellant's costs in this Court.
6. Should any other order for costs be sought, grant leave for the parties to approach the Chambers of Cavanagh J.
By ground 2 the appellant asserts error in both the admission of and reliance on evidence of Senior Constable Buttigieg. Two aspects of the Senior Constable's evidence are in question. The specific evidence the subject of ground 2 was given by Senior Constable Buttigieg in answer to a question asked by counsel for the respondent (by whom the Senior Constable was called). The question was:
"Did you form a view as to why he [the respondent] was reversing?"
Objection was taken to the question by counsel for the appellant on the basis that the question invited "an opinion response" contrary to "the opinion rule" stated in s 76(1) of the Evidence Act 1995 (NSW). Counsel for the respondent pressed the question, saying:
"This is the investigating police officer, your Honour. In my submission, its relevant and admissible."
Without hearing further argument or giving reasons the primary judge admitted the question. Senior Constable Buttigieg answered:
"He told me that he was reversing to avoid being assaulted and I believed him."
Senior Constable Buttigieg was then asked what caused him to believe the respondent (a question to which no objection was taken), to which he answered:
"From the - what - the evidence that I had obtained from the scene, it matched what he was telling me and obviously there's a bit of experience, I guess, that comes towards hearing what people say, what happened and whether or not I believe what they're saying."
There are multiple problems in the admission of this evidence, to which the primary judge made reference, particularly in his consideration of the defences under ss 52 and 53 of the Civil Liability Act 2002 (NSW), and on which he, at least in part, based the inference that the respondent acted as he did in reversing the vehicle in the belief that such action was necessary in order to defendant himself.
The first problem is that the answer to the first question is plainly hearsay, made inadmissible by s 59 of the Evidence Act unless subject to one of the exceptions thereafter stated. No argument at trial was addressed to that aspect of the answer, perhaps because it was unresponsive to the question which had been permitted over objection. Conceivably, if the appropriate circumstances were established, that answer might have come within one of the exceptions to the hearsay rule provided (for example, s 63, s 64 or s 66A). However, none of these was raised, no foundational facts to establish any exception were presented or found. That answer was, accordingly, inadmissible hearsay. The answer to the second question contravened the opinion rule. Properly understood, Senior Constable Buttigieg was expressing an opinion about the reason the respondent elected to reverse the vehicle.
By s 76 of the Evidence Act evidence of an opinion is not admissible (unless subject to one of the exceptions that follow) ("the opinion rule"). Conceivably, counsel was seeking to rely on the exception to the opinion rule provided by s 79, which permits the admission of opinion evidence that is wholly or substantially based on training, study or experience of the person giving the evidence. If so, counsel made no attempt to lay the foundation to establish the exception and the primary judge made no findings that would bring the evidence within the exception. The evidence that Senior Constable Buttigieg believed the respondent was inadmissible for this reason also.
Finally, the effect of the evidence was to give Senior Constable Buttigieg's opinion as to the credibility of the respondent in a statement said to have been made outside the court by him with respect to an essential fact relevant to the s 52 and s 53 defences.
The admission of that evidence contravened the fundamental rule of the Evidence Act (s 55), that evidence that is relevant in a proceeding is admissible, and evidence that is not relevant is not admissible. Senior Constable Buttigieg's assessment of the credibility of the respondent's assertion had no possible relevance to a determination of the factual issues in the trial. Even if that were not so, Senior Constable Buttigieg's evidence suffered from the frailties identified by Cavanagh J, which rendered it of no value.
The erroneous admission of the evidence was material because it played a significant part in the determination of the s 52 and s 53 defences.
By ground 3 the appellant asserts error in the failure of the primary judge to accord any or any adequate weight to the fact that the respondent had deliberately absented himself from the court. The circumstances in which that absence came about are set out in the judgment of Cavanagh J. Inherent in the ground as pleaded is a complaint of failure on the part of the primary judge to draw, in accordance with the reasoning of the High Court in Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8, an inference adverse to the respondent. As is well established, the most that can be inferred on the application of Jones v Dunkel reasoning is that the evidence of the absent witness would not have assisted the case of the party who might be expected to have called that witness. That does not permit any inferences to be drawn about what evidence the absent witness might have given if called, nor does it operate to fill any gaps in the party's case. I agree with Cavanagh J that this ground fails.
Grounds 4 to 6 challenge several intermediate factual findings on the basis of which his Honour dismissed the appellant's claim in battery.
The appeal is governed by s 75A of the Supreme Court 1970, by which the appeal is a rehearing (subs(5)) and this Court has the powers and duties of the court from whom the appeal is brought, including powers and duties concerning the drawing of inferences and the making of findings of fact (subs(6)(b)), and may make any finding or assessment and give any judgment or make any order or direction which ought to have been given or made or which the nature of the case requires (subs(10)). Exercise of those discretions is subject to the constraints stated in Fox v Percy (2003) 214 CLR 418 [2003] HCA 22; Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22; (2016); 90 ALJR 679 and, most recently, Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55]. Even taking into account those constraints, I agree, for the reasons given by Cavanagh J, that the conclusion of the primary judge is not supported by the evidence and is, indeed, contradicted by compelling inferences to be drawn from the evidence. Specifically, I agree with Cavanagh J that the finding that, in driving as he did, the respondent did not intend to injure the appellant is unsustainable on the evidence.
By ground 7 the appellant asserts error in the approach to the provisions of the Civil Liability Act dealing with self-defence. The relevant provisions are set out in full in the judgment of Cavanagh J. The primary judge rejected the defence pleaded under s 52 but only because he found that the conduct of the respondent was not a reasonable response in the circumstances as he perceived them. He did accept that the respondent believed that his conduct was necessary to defend himself. That being so, s 53 applied, and his Honour found, notwithstanding that the respondent had not established reasonableness of the respondent's conduct, that s 53 precluded an award of damages. That was because subs (1) of s 53 provides that, where a s 52 defence is rejected (only) because the conduct was not a reasonable response in the perceived circumstances, no damages are to be awarded unless the circumstances of the case are exceptional and that, in the circumstances, a failure to award damages would be harsh and unjust.
As Cavanagh J has shown, the finding that the respondent believed that his conduct was necessary to defend himself was flawed, being dependent on the inadmissible evidence of Senior Constable Buttigieg and otherwise having no evidentiary support. The consequence is that the s 52 defence was not made out for reasons other than the failure of the respondent to establish the reasonableness of his conduct, and s 53 had no application.
Also incorporated in ground 7 was a complaint that the primary judge erroneously applied s 54(1) of the Civil Liability Act, which precludes an award of damages in circumstances where the events giving rise to the injury the subject of the claim occurred at the time or following the commission of a serious offence by plaintiff (here, the appellant). However, by s 54(2), that preclusion is not applicable if the conduct of the defendant (here, the respondent) that causes the injury itself constitutes an offence (which need not be a serious offence). As Cavanagh J has shown, the conduct of the respondent in managing the vehicle as he did with the intention of injuring the appellant plainly constituted an offence, with the effect that subs (2) of s 54 negated the effect of subs (1).
By ground 8 the appellant asserts error by the primary judge in reducing the notional award of damages by 70% due to what he held to be the contributory negligence of the appellant. As comprehensively explained by Cavanagh J and N Adams J, ss 5R and 5S the Civil Liability Act (concerning the reduction of awards of damages by reason of contributory negligence) do not apply to damages awarded in respect of intentional torts.
For these reasons (which do not differ in substance from those of Cavanagh J) I agree with the orders proposed.
N ADAMS J: I have had the advantage of reading the judgment of Cavanagh J in draft. I agree with the orders proposed by his Honour for the reasons provided. I also agree with the additional reasons of Simpson AJA. I wish to provide some further reasons for my agreement with Cavanagh J's conclusion that ground 8 should be dismissed on the basis that the defence of contributory negligence is not available at common law in respect of an intentional tort.
The primary judge found that the respondent's manner of driving was negligent but reduced the damages payable to the appellant by 70% on the basis that the appellant was contributorily negligent. I agree with Cavanagh J that the primary judge erred in not finding that the respondent's conduct amounted to the intentional tort of battery. The primary judge's finding of negligence (rather than of an intentional tort) meant that the applicability of the defence of contributory negligence to a finding of battery was not considered by his Honour below. In fact, the primary judge observed the following on this issue:
"Although the plaintiff pleaded his case on the basis that the action of the defendant in reversing his vehicle was negligent or, in the alternative, deliberate, he did not challenge the entitlement of the defendant to rely upon contributory negligence as expressed in ss 5R and 5S of the Civil Liability Act. He did not, for example, contend that if I found the action of the defendant to be deliberate, those sections had no application. In the absence of any submission by the plaintiff to that effect, I will treat the defendant's submission as being unlimited in its application to the claim that is made (cf Sangha v Baxter [2009] NSWCA 79 at [146]-[148])."
Although the question of whether contributory negligence was available for an intentional tort was not considered by the primary judge, it is necessary to do so now. The question is whether, following this Court's finding of battery, the appellant's contention that his damages should not be reduced by 70% (because contributory negligence is not available at common law in respect of an intentional tort) should be accepted. Determination of this ground requires a consideration of the relevant authorities.
The High Court has not considered the question of whether a defence of contributory negligence is available for an intentional tort. However, it did consider a similar question in Fontin v Katapodis (1962) 108 CLR 177; [1962] HCA 63, namely, whether compensatory damages awarded to a plaintiff arising from assault and battery can be reduced by the plaintiff's provocation of the defendant. That decision concerned an assault in which the plaintiff, after falsely being accused of not having paid his account, struck the defendant twice with an object. Before the plaintiff could continue this assault, the defendant threw a glass offcut at him which struck him in the hand when he raised his hands in defence. His hand was permanently injured as a result. The plaintiff brought proceedings for assault and battery against the defendant. Both self-defence and provocation were raised by the defendant.
On appeal to the High Court, it was contended that the primary judge had erred in reducing the compensatory damages payable by the defendant by reason of the plaintiff's provocation of the defendant. Owen J held that the primary judge had fallen into error and observed the following (at 187):
"In an action for assault, as in many other cases of tort, the conduct and motives of the parties may be taken into account either to aggravate or mitigate damages. In a proper case the damages recoverable are not limited to compensation for the loss sustained but may include exemplary or punitive damages as, for example, where the defendant has acted in a high-handed fashion or with malice. But the rule by which the defendant in an action in which exemplary damages are recoverable is entitled to show that the plaintiff's own conduct was responsible for the commission of the tortious act and to use this fact to mitigate damages has no application to damages awarded by way of compensation. It operates only to prevent the award of exemplary damages or to reduce the amount of such damages which, but for the provocation, would have been awarded."
Dixon CJ agreed with Owen J.
McTiernan J also held that compensatory damages for assault and battery cannot be reduced on account of the plaintiff's provocation of the defendant. His Honour observed (at 184):
"It would seem that the principle on which damages of all kinds are reduced or mitigated because of provocation in a case of assault and battery is that the plaintiff brought the trespass on himself. It is, as it were, contribution charged to him on account of his own fault. On the other hand, it is said that the law provides a remedy for any damage or loss occasioned by a wrongful act and, therefore, if provocation brings the defendant to do any act in excess of lawful self-defence which results in personal injury and economic loss to the plaintiff, he is entitled to just and adequate damages, and to mitigate or reduce actual or compensatory damages is to deprive the plaintiff pro tanto of a legal right. This would seem to place actual or compensatory damages for assault and battery on the same footing as damages for personal injury caused by negligence. I am inclined to the view that there ought to be no reduction of actual or compensatory damages for provocation in the case of assault and battery. It seems to me to be correct in principle to mitigate or reduce damages of the nature of exemplary damages if the plaintiff has provoked the assault and battery complained of. It follows that the judgment of the Supreme Court of the Northern Territory should be varied by substituting the sum of £2,850 for the sum of £2,000. I agree in the order proposed in the case of each appeal."
(Emphasis added.)
A subsequent decision of relevance, although not directly on point, is Venning v Chin (1974) 10 SASR 299. That decision concerned a collision between a pedestrian and a motorist on a road, causing injury to the plaintiff. The appeal turned first on the availability of an action in trespass for negligent conduct and questions of onus relating to "highway" incidents.
Bray CJ found that the action of trespass is still available for personal injuries caused by negligence then turned to consider the applicability of the apportionment legislation, being s 27a of the Wrongs Act 1936-1972 (SA) (which was framed in similar terms to the equivalent NSW provisions under the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) extracted by Cavanagh J at [226]-[228]). Bray CJ concluded that contributory negligence could be raised by a defendant as an answer to a claim in negligent (but not intentional) trespass. Relevantly, his Honour made the following observations in passing at 317 (footnotes omitted):
"In support of his argument that the contributory negligence of the female appellant would not, apart from the Wrongs Act, have provided the respondent with a defence to his clients' claims Mr. Newman relied on Fontin v. Katapodis and Lane v. Holloway, but these were cases of assault and it is clear that contributory negligence could never be a defence to an intentional tort, or perhaps it would be preferable to say to the intentional consequences of a tort: … I do not think that they touch the present question."
(Emphasis added.)
The decision of Brooking J in Horkin v North Melbourne Football Club Social Club [1983] 1 VR 153 would appear to be the first Australian authority to consider the availability of contributory negligence in respect of an intentional tort. Mr Horkin sued the defendant club for assault and battery. He brought his case in negligence in the alternative. He had sustained injuries after being forcibly ejected from premises by a staff member of the club. Brooking J accepted (at 157) that the plaintiff was the victim of battery by an employee of the defendant (in the sense that the force used was unreasonable and hence unlawful) before turning to the question of contributory negligence.
On the assumption that contributory negligence was available to reduce damages in an action for battery, his Honour found the defence to be made out in that "the plaintiff failed to take reasonable care for his own safety and that this failure contributed to his injury" (at 157). Brooking J continued:
"I find that the plaintiff was guilty of contributory negligence in that he became intoxicated while on licensed premises and failed to leave when asked in a proper manner to do so, and given a reasonable opportunity of doing so, by authorized employees of the defendant whom he knew or believed to be such, and instead of leaving attempted to push his way past one of the defendant's employees and penetrate further into the premises, so bringing about the situation in which the defendant's employees, acting lawfully by way of removing a trespasser, found it necessary to use, and did use, force to expel him by marching him to the door. His attempting to push past the defendant's employee did technically amount to a battery on his part. He was intoxicated and argumentative and speaking loudly and had tried to force his way through, and it was only natural and proper that he should be seized and removed from the premises as quickly as possible. He created a situation in which the use of force to expel him was the natural and lawful consequence of his own misbehaviour. The degree of force used was, in the end, after he had reached the door, unlawful, and was not the necessary consequence of his own condition and behaviour, but in my opinion a causal connection has been shown between his own negligence and his injury.
As to apportionment, assuming the legislation to be applicable, I would apportion responsibility 70 per centum to the defendant, 30 per centum to the plaintiff."
His Honour then posed the question: "But does contributory negligence operate to reduce damages in an action for battery?" His Honour reviewed a number of old English cases and texts on the subject (as well as Canadian and US writings) and noted the relative absence of authority or analysis on this issue. One case of relevance was Butterfield v Forrester (1809) 103 ER 926, which is an "early highway nuisance case". His Honour observed at 161 that Butterfield:
"….is cited in support of the proposition that the defence of contributory negligence is not restricted to actions for negligence and that the defendant raising the defence may be guilty of wilful wrongdoing, provided only that the consequence for which the plaintiff seeks to hold him liable was an unintended one. Similarly, Glanville Williams, Joint Torts and Contributory Negligence … refers to Butterfield v Forrester and makes the availability of the defence in cases of wilful wrongdoing depend upon whether the consequences were intended or unintended by the defendant, a view endorsed by Bray, CJ [Venning v Chin] at p. 317."
(Emphasis added.)
I note that this distinction between the intended and unintended consequences of an intentional tort has reappeared in modern authorities (see the discussion below of ACQ Pty Ltd v Cook (2008) 72 NSWLR 318; [2008] NSWCA 161 and State of New South Wales v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208).
Brooking J went on to consider Fontin v Katapodis and provocation generally, observing the following at 162:
"Clearly provocation is no defence to an action for battery. This is implicit in the decisions on whether provocation goes in mitigation of damages, and at times is made explicit in such decisions, as in Thom v Graham (1835) 13 Shaw (Ct of Sess) 1129; Green v Costello, [1961] NZLR 1010, at p. 1013 and the American cases of Mahoning Valley Railway Co. v De Pascale (1904) 70 Ohio St 179 and Terry v Richardson (1923) 123 SC 319, the relevant excerpts from which appear in 63 ALR 892. In Fontin v Katapodis (1962) 108 CLR 177 the trial Judge assessed damages for a battery at 2850 pounds, no part of the award being in respect of aggravated or exemplary damages, but reduced the award to 2000 pounds by reason of provocation. The plaintiff appealed successfully to the High Court, which laid it down that, while provocation might prevent the award of exemplary damages or reduce the amount of such damages, it could not lead to a reduction in compensatory damages. Owen, J., with whom Dixon, CJ agreed, made no mention of aggravated damages. Such damages are compensatory: Rookes v Barnard, [1964] AC 1129, at pp. 1221 and 1228-38, per Lord Devlin; [1964] 1All ER 367. McTiernan, J., at p. 183, appears to have considered that provocation could prevent the award or reduce the amount of aggravated damages, and that is my view: cf. Check v Andrews Hotel Co. Ltd. (1974) 56 DLR(3d) 364; Luntz, Assessment of Damages for Personal Injury and Death, supra, para. 1.817. In Fontin v Katapodis, supra, the incident occurred on 10 December 1958 in the Northern Territory, where apportionment legislation had been in operation since 1956: Law Reform (Miscellaneous Provisions) Ordinance 1956. Contributory negligence was not pleaded, and the question was dealt with as part of the law relating to mitigation of damages. The judgments contain nothing dealing in terms with the matter of contributory negligence, yet one cannot avoid the impression that some reference would have been made to contributory negligence if in the opinion of the Court it would have been available had it been raised on the pleadings. An observation of McTiernan, J.at (108 CLR) p. 184 may be thought not to countenance contributory negligence as a defence: [extracted above at [27]]."
(Emphasis added.)
His Honour considered a number of other decisions as well as Fleming, The Law of Torts, 5th ed. (at pp. 265-7), in which the author considered that contributory negligence was not available at common law nor under statute in cases of intended injury. His Honour then concluded the following at 165-166:
"Once it is accepted (as it must in Australia, having regard to Alford v Magee) that contributory negligence is not wholly to be referred to the theory of causation, it becomes easier to ground in principle the view that contributory negligence affords no defence at common law to an action for battery. Given that one may consider whether it is fair or reasonable to regard the plaintiff as in any real sense the author of his own harm (Alford v Magee, at (85 CLR) p. 461), it is easy to understand why the law should, as a matter of policy, withhold the defence in cases of intentional as opposed to negligent trespass to the person and to say with Prosser, Handbook on Torts, 3rd ed., p. 436 that the reason why contributory negligence is no defence where the defendant intended to inflict injury is to be found in the difference between the fault of the defendant and that of the plaintiff; the difference is not merely in degree but in kind, and the social condemnation attached to the fault differs markedly. Similarly, Glanville Williams, supra, article 55, suggests that the exclusion of the defence in cases of intentional wrongdoing is both a penal provision, aimed at repressing conduct flagrantly wrongful, and the result of the ordinary human feeling that the defendant's wrongful intention so outweighs the plaintiff's wrongful negligence as to efface it altogether.
I have concluded that contributory negligence was not at common law and is not under the statute available in an action for battery."
In the subsequent decision of Australian Guarantee Corporation Ltd v Commissioners of the State Bank of Victoria [1989] VR 617, a case concerned with the tort of conversion of a bank cheque, Ormiston J observed (at 637-638):
"Nevertheless, in the course of his submissions, counsel for the Bank candidly conceded that he would have great difficulty in strenuously putting a detailed argument that contributory negligence was a defence in the light of existing Australian authority … Recent textbook authority suggests that, except in the case where an "intentional" tort involves a claim for negligent injury, the Australian authorities should be preferred".
The above two cases were cited with approval by Williams J in Dura Constructions (Aust) Pty Ltd v Dovigi [2004] VSC 252 at [67]-[69] (footnotes omitted):
"Whilst contributory negligence or fault is relevant to the assessment of damages in an action for negligence by the operation of the Wrongs Act 1958 and its equivalents, it has been held that the contributory negligence of the victim may be taken into account in the assessment of exemplary damages, but will not reduce compensatory damages in relation to the intentional tort of battery: Fontin v Katapodis; Horkin v North Melbourne Football Social Club.
The different issue of the availability of the defence of contributory negligence or fault in an action for conversion was considered by Ormiston J (as his Honour then was) in Australian Guarantee Corporation Ltd v Commissioner of the State Bank of Victoria. His Honour took the view that the weight of authority and the opinion of text writers suggested that the defence was not available in cases of intentional torts except in the case of a claim for negligent injury. In State of NSW v Riley the New South Wales Court of Appeal held that the defence of contributory negligence was available in relation to the unintended consequences of an action for trespass where some direct interference had been established.
I note that, nevertheless, in R v MacGowan, the Court of Criminal Appeal in New South Wales upheld the trial judge's reduction of compensation on the basis of the dicta in McDonald and the contributory negligence of the victim. Neither the High Court's decision in Fontin v Katapodis nor the issue of the relevance of the concept of contributory negligence to an assessment of compensatory damages in relation to an intentional tort was addressed."
Turning to decisions of this Court, the decision of State of New South Wales v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208 ("Riley"), referred to by Williams J in the passage extracted above, concerned the lawfulness of police action to arrest the plaintiff and deal with him according to s 24 of the Mental Health Act 1990 (NSW). The police were called to the plaintiff's premises around midnight and observed the end of a domestic altercation. The plaintiff was apprehended by police, handcuffed, and placed in the back of the "paddy wagon". At the time of arrest, he stated that he felt the handcuffs were too tight. Once in the vehicle, the plaintiff was so angry he kicked against the door and threw himself from side to side with such force as to cause the vehicle to rock. A few weeks later, an X-ray showed a fracture of his right wrist.
The plaintiff commenced proceedings against the State for assault, battery and false imprisonment; negligence causing injury, particularly injury to the wrists and psychological injury; trespass to property constituted by the police search; and trespass to the person and property arising from a subsequent incident. A claim was made for aggravated and exemplary damages.
The primary judge dismissed the claim in assault on the basis that the arrest was lawful but upheld a case in negligence. As Hodgson JA noted (at [60]) the primary judge held that the decision to transport the plaintiff in such an agitated state and handcuffed behind his back along a road with steep grades and sharp bends failed to take adequate account of the risk of injury. His Honour found that the plaintiff was contributorily negligent and reduced the damages by 40% on that account.
On appeal, this Court found the initial arrest to be unlawful and thus the plaintiff's claim in false imprisonment to be made out. As for the interplay between the findings of intentional tortious conduct by police (the false imprisonment) and negligence (the driving), Hodgson JA (with whom Sheller and Nicholas JJA agreed) observed the following at [102]:
"My conclusion that false imprisonment continued until the respondent was scheduled at Moruya Hospital does not, in my opinion, justify a conclusion that the respondent suffered any additional injury or damage as a result of the appellant's tortious conduct; but it could possibly have consequences in relation to contributory negligence. Given that the respondent's wrist fracture was caused between arrest and arrival at Moruya, the conclusion that false imprisonment continued throughout this period raises the question whether the wrist fracture was caused by an intentional tort, rather than merely by negligence. In my opinion, the intentional wrongdoing was imprisonment (in the absence of explanation), not the absence of explanation itself; and the wrist fracture would not have occurred but for the imprisonment. And just as the wrist fracture was a foreseeable consequence of negligence, it was also in my opinion a foreseeable consequence of imprisonment and/or the manner of imprisonment (including the manner of driving)."
(Emphasis added.)
His Honour went on to observe at [104]-[108] in respect of contributory negligence:
"It seems clear that such a defence is not available at common law to a claim for damages for an intentionally inflicted injury: Quinn v Leathem [1901] AC 495 at 537; Fontin v Katapodis (1962) 108 CLR 177; Horkin v North Melbourne Football Club Social Club [1983] 1 VR 153. The contrary view, expressed in Lane v Holloway [1968] 1 QB 379, Hoebergen v Koppens [1974] 2 NZLR 597 and Barley v Paroz (Queensland Supreme Court, 4 April 1979, unreported), is I believe incorrect.
However, the wrist fracture was not inflicted intentionally, and was not proved to be other than an indirect consequence of the false imprisonment. This gives rise to two questions: (1) as an indirect consequence of the imprisonment, could it in any event be compensated in an action for trespass to the person; and (2) if it could be compensated in such an action, would a defence of contributory negligence lie because the injury was not intended?
It seems clear that contributory negligence is available as a defence to an action for unintentional trespass: see Venning v Chin (1974) 10 SASR 299 … And in J G Fleming, Law of Torts, 9th ed (1998) Sydney, LBC Information Services, the following appears (at 316): 'Even at common law contributory negligence was not a defence to all torts. Thus it did not apply to intended injury as distinct from unintended consequences of wilful wrongdoing'. (Footnotes omitted.)
Returning to my two questions, I am inclined to the view that, once some direct interference is established so that an action for trespass does lie, even indirect consequences of that interference can be compensated in the action for trespass (although such action would not lie at all if there was no direct interference but only indirect consequences). However, where there are indirect and unintended consequences of the trespass, I think the better view is that the defence of contributory negligence is available in respect of those unintended consequences. This view has some support from the decision of the Court of Appeals of New York in Sindle v New York City Transit Authority 352 NYS2d 183 (1973), which concerned a false imprisonment action brought by a schoolboy who sustained injuries attempting to escape from a moving bus. Jason J, with whom the other six judges agreed, said this (at 187): 'Where the damages follow as a consequence of the plaintiff's detention without justification an award may include those for bodily injuries … And although confinement perceived to be unlawful may invite escape, the person falsely imprisoned is not relieved of the duty of reasonable care for his own safety in extricating himself from the unlawful detention'.
For those reasons, I do not think that the circumstance that the false imprisonment continued until after the respondent arrived at Moruya Hospital affects either the amount of damages or the reduction for contributory negligence."
(Emphasis added.)
The question was also raised but not determined in Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322. Similar to Horkin, that appeal concerned a claim for injuries sustained during the plaintiff's forceful ejection from a nightclub. The relevant injury was a fractured right elbow which occurred as a security guard employed by the defendant attempted to restrain the plaintiff. At trial, counsel for the plaintiff did not raise the question as to whether contributory negligence was unavailable at law in respect of an intentional tort. The parties proceeded at first instance and on appeal on the basis that the defence was available. In this respect, McColl JA noted at [25]-[27]:
"As I have said the primary judge concluded that the second appellant intentionally assaulted the respondent. In the course of argument on appeal the Court raised the question whether contributory negligence was available in the circumstances having regard to the conclusion in New South Wales v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496 (at [104], [107]) that contributory negligence is not available at common law to a claim for damages for an intentionally inflicted injury.
The respondent did not take this point at trial. Mr L King of Senior Counsel, who appeared for the appellants on appeal, but not at trial, was caught by surprise when it was raised by the Court and, not surprisingly, expressed no enthusiasm for pursuing it on the run.
It is unnecessary to do more than flag that the point may have been available to resist the contributory negligence plea, and to consider the appeal on the assumption the parties adopted, that contributory negligence was available as a defence."
The primary judge held that the plaintiff was not guilty of contributory negligence and the Court of Appeal did not disturb this finding. Thus, it was not necessary for the Court to determine the question of whether damages could be reduced on that basis. In that context McColl JA stated the following at [32]-[33]:
"On the assumption to which I have referred, concerning the circumstances the primary judge took into account in dealing with contributory negligence, I can discern no error in his Honour's approach to this issue. The appellants' short point was that the respondent failed to take reasonable care for his own safety because he drank to a point where his state of inebriation affected his ability to react rationally (i.e. compliantly) with the second appellant. The primary judge held that the respondent was not adversely affected by alcohol. Further, he held that the respondent was trying to persuade the second appellant to permit his party to remain on the premises rather than resisting his order to leave. He also held that the respondent had told his cousin they had to leave virtually contemporaneously with the assault. These were findings which were clearly open on the evidence.
I can detect no error in the primary judge's approach to this issue. It might be expected that some force would be exerted on a patron who failed to leave premises. However, in my view a reasonable person would not expect even a sober pub or nightclub patron to foresee that failing to leave could lead to a bouncer using excessive force to remove the patron."
(Emphasis added.)
I note that her Honour's last finding, as to the foreseeability of excessive force, may be contrasted with the findings of Brooking J in Horkin at 157 (extracted above at [31]).
Basten JA identified the tortious conduct of assault (and battery) as comprising "the use of excessive force to achieve a lawful purpose" (at [124]) and went on to observe (at [125]):
"It should be inferred that the finding that the second defendant's act was intentional and that the force was excessive was a finding that it was to that extent unjustified and tortious. As confirmed by Clarke JA in Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR 714 at 743, in a case involving false imprisonment, 'it is not a necessary element of assault (and battery) that the defendant intended to injure the plaintiff'."
Basten JA referred to Riley and then observed at [126]:
"The defence was available in that case because the injury to the plaintiff's wrist occurred as a result of negligence in applying handcuffs or in the manner of driving the paddy wagon, during a period of false imprisonment: at [100]. These factual findings explain the availability of contributory negligence in those circumstances."
His Honour continued at [127]-[128]:
"By adopting as its indicium of operation the availability of contributory negligence at common law, the 1965 Act requires continuing reference to the common law. The circumstances in which contributory negligence might operate in a case of trespass were discussed by Bray CJ in Venning v Chin (1974) 10 SASR 299 at 317-322. However, the circumstances of that case involved an unremarkable running-down case pleaded in trespass, and therefore give limited guidance.
The present case is far removed from either Riley or Venning on its facts. Furthermore, in determining whether contributory negligence is available at common law in the present circumstances, it may be necessary to consider questions of coherence in relation to provocation. That is because, in the context of an intentional tort, it is likely that the plaintiff's conduct could as readily be characterised as provocation as a failure to take reasonable care in his or her own interest. The availability of a defence of provocation is itself contentious: see Horkin v North Melbourne Football Club Social Club [1983] 1 VR 153 (Brooking J) and Fontin v Katapodis (1962) 108 CLR 177. In Plumb v Breen (unrep, NSWSC, 13 December 1990) Young J held that there was no defence of provocation in answer to a battery, but considered that a different conclusion might be reached in Queensland. However, absent statutory influence, there should not be a difference of approach to the common law in different Australian jurisdictions: see Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 81 ALJR 1107 at [135]. (In relation to provocation, see generally Trindade, Cane and Lunney, The Law of Torts in Australia (4th ed, OUP, 2007) at par 2.5.9.)
His Honour at [129]-[130] reached the same finding as McColl JA that contributory negligence was in any case not made out on the facts. Beazley JA agreed with McColl JA.
Another decision of this Court in which the issue was raised but not determined is ACQ Pty Ltd v Cook (2008) 72 NSWLR 318; [2008] NSWCA 161. In that matter, Campbell JA (Giles and Beazley JJA agreeing) (at [159]-[164]), considered a defence of contributory negligence raised in respect of a liability imposed by s 10 of the Damage by Aircraft Act 1999 (Cth). Section 11 of that Act provided that damages "in respect of the injury, loss, damage or destruction" were recoverable "without proof of intention, negligence or other cause of action, as if the injury, loss, damage or destruction had been caused by the wilful act, negligence or default of the defendant or defendants." (Emphasis added.)
By force of ss 8 and 9 of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW), Campbell JA was led to enquire "whether a defence of contributory negligence is available at common law in an action for recovery of damages in respect of an injury, loss, damage or destruction that has been caused by the wilful act, negligence or default of the defendant or defendants" (at [159]).
The relevant passages of his Honour's judgment at [160]-[164] are as follows:
"It is elementary that a defence of contributory negligence is available at common law in an action for recovery of damages in respect of an injury, etc, caused by the negligence of the defendant or defendants. The availability of a defence of contributory negligence in action for recovery of damages in respect of an injury, etc, caused by the 'wilful act' or 'default' of the defendant or defendants is more complex.
…
Examination of Glanville Williams (at 198-222) shows that when contributory negligence was available as a defence at common law is a matter of considerable complexity. For example, if the consequences of which the plaintiff complains were intended by the defendant, no defence of contributory negligence is available: Quinn v Leathem [1901] AC 495 at 537 per Lord Lindley. For the tort of deceit (which can be committed either intentionally or recklessly: Derry v Peek (1888) 14 App Cas 337), contributory negligence of a gullible plaintiff, or of a plaintiff who negligently failed to check the accuracy of the statement made, is not a defence: Central Railway Company of Venezuela v Kisch (1867) LR 2 HL 99. However, contributory negligence can be a defence to the unintended consequences of wilful wrongdoing: Butterfield v Forrester (1809) 11 East 60; 103 ER 926. It may also be a defence to an action against a master for the wilful tort of his servant, and to an action based on strict liability where the loss was caused through the wilful tort of the defendant's servant: Bradley v Waterhouse (1828) M & M 154; 173 ER 1114; 3 Car & P 318; 172 ER 438. The situation may be different where the plaintiff actually intends to bring the damage on himself, rather than merely being careless of his own interests. A person whose goods are stolen after he or she has been careless for their safety can nonetheless recover them, or their value, from a bona fide purchaser from the thief: Scholfield v Earl of Londesborough [1896] AC 514 at 522 (an intentional tort in that proof of an action or actions by the defendant showing an intention to assert dominion over the goods would be an essential part of the plaintiff's case). These examples by no means exhaust the complexity of the topic. More recent authority continues to assert that there is no invariable rule about whether contributory negligence is a defence to a tort based on the wilful action of the defendant: State of New South Wales v Riley (2003) 57 NSWLR 496 at 522 [104]-[106]; Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322 at [25]; Lane v Holloway (1968) 1 QB 379 at 392-393; Dura Constructions (Aust) Pty Ltd v Dovigi [2004] VSC 252 at [67]-[68]; Australian Guarantee Corporation Ltd v Commissioners of the State Bank of Victoria [1989] VR 617 at 637-638 …
The relevant point, for present purposes, is that contributory negligence is sometimes available at common law in relation to an action to recover damages for injury, loss, damage or destruction caused by a wilful act of the defendant, and sometimes it is not."
(Emphasis added.)
Ultimately, Campbell JA did not need to determine the issue as those proceedings concerned the construction of the Damage by Aircraft Act.
One year later, doubt was expressed by Basten JA as to whether the defence is available in relation to an intentional tort in Sangha v Baxter [2009] NSWCA 78; (2009) 52 MVR 492 at [147]-[148] (Handley AJA agreeing):
"Whether a defence of contributory negligence is available in relation to an intentional tort intended to cause injury is at best doubtful: see State of New South Wales v Riley [2003] NSWCA 208; 47 NSWLR 496 at [104] (Hodgson JA, Sheller JA and Nicholas J agreeing); Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322 at [121]-[128].
It is not necessary to conclude that the approach taken by the trial judge was wrong; it is sufficient to note that an issue with respect to the availability of contributory negligence will arise again at the retrial, if the conduct of Mr Nagra is held to give rise to liability and is held to have involved the intentional infliction of injury. That may properly be characterised as involving at least one complex legal issue."
Nor did the question need to be determined in Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132. In that decision Leeming JA (Beazley P and Ward JA agreeing) commented at [38]:
"As well as putting in issue much of the conduct, Mr Croucher's defence pleaded a number of special defences. I pass over various defences under the Civil Liability Act which formed no part of this appeal. His defence also alleged contributory negligence. This plea was confined to the cause of action in negligence, and so I shall also pass over the question whether it could extend to the tort of battery: see Sangha v Baxter (2009) 52 MVR 492; [2009] NSWCA 78 at [147] and the cases there cited."
In C Sappideen and P Vines, Fleming's The Law of Torts (10th ed, Thomson Reuters, 2011) the authors note (at 45) that contributory negligence is "probably not applicable" in respect of intentional torts, citing Elite Protective, and Riley for the suggestion that "contributory negligence might be available for unintended consequences of intentional torts".
Finally, it is to be noted that in Pritchard v Co-operative Group Ltd [2012] QB 320; [2011] EWCA Civ 329 the English Court of Appeal unanimously held that contributory negligence was not available at common law as a defence to an intentional tort.
Having considered these authorities, as well as the policy considerations identified by Cavanagh J, I too am satisfied that contributory negligence does not operate as a defence to an intentional tort such as battery where, as in this case, the injury is a direct consequence of that intentional tort. I note that a distinction is drawn in some of the authorities as between intended and unintended consequences of the relevant intentional tort. As Basten JA noted in Elite Protection at [125] (see also Sangha v Baxter at [147]), it is not an element of either assault or battery that a defendant intends to injure a plaintiff; what is intended is the act itself. In that respect it seems to me that the references to intended and unintended consequences in some of the above cases might be better understood to mean direct and indirect consequences. Indeed, this language was used by Hogdson JA in Riley at [104]-[108] (see above at [42]). In any event, it is not necessary to consider the position where the injury is the indirect consequence, or even whether an inquiry into intention should govern the availability of the defence of contributory negligence, as in this matter the plaintiff's injury was a direct consequence of the defendant's act and the defendant intended to injure the plaintiff (as found by Cavanagh J at [173]-[175], [233]).
CAVANAGH J: In proceedings pursued in the District Court of New South Wales, the appellant sought damages from the respondent arising out of a motor vehicle accident which occurred on 23 July 2014.
The matter was heard over five days between 18 and 22 June 2018. On 18 December 2020, Acting Judge Craig QC pronounced judgment and made orders in favour of the respondent. His Honour did not give reasons when handing down the judgment but subsequently forwarded reasons to the parties on 24 December 2020.
The appellant appeals from that decision.
The appellant pursues a number of grounds of appeal including that, as submitted by the appellant, the failure of the primary judge to deliver reasons at the same time as making the orders or immediately thereafter means that the judgment must be set aside. The appellant says that the matter must be remitted to the District Court for a new trial.