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Al Haje v Elassaad

Al Haje v Elassaad

Case [2024] NSWSC 689 6 June 2024

Trespass

Self-Defence

Compensatory Damages

Aggravated & Exemplary Damages

Tort Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Al Haje v Elassaad [2024] NSWSC 689
Hearing dates: 20 – 24 May 2024
Date of orders: 6 June 2024
Decision date: 06 June 2024
Jurisdiction: Common Law
Before: Elkaim AJ
Decision:
1. Judgment for the plaintiff in the sum of $454,340.95.
2. Costs are to be decided following submissions by the parties.

Catchwords:
TORTS – intentional torts – trespass to the person – battery/assault – whether the defendant was acting in self-defence when he struck the plaintiff twice – held defendant was not acting in self-defence – damages – assessment of damages – whether damages to which the Plaintiff establishes an entitlement are assessed pursuant to the Civil Liability Act or the common law – common law damages awarded – award for general damages – past and future economic loss – past and future medical expenses – aggravated and exemplary damages

Legislation Cited:
Civil Liability Act 2002 (NSW), ss 3B(1) 52-54,
Uniform Civil Procedure Rules (2005) NSW, r 42.34

Cases Cited:
AA v PD [2022] NSWSC 1039
Brighten v Traino [2019] NSWCA 168
Mason v Demasi [2009] NSWCA 227
QBE v Orcher; Bowcliff v Orcher [2013] NSWCA 478
Sahade v Bischoff [2015] NSWCA 418
State of New South Wales v Zreika [2012] NSWCA 37
Van Haren v Van Ryn [2023] NSWSC 776

Category: Principal judgment
Parties: Wisam Al Haje (Plaintiff)
Mohammad Elassaad (Defendant)
Representation:
Counsel:
Mr J Sheller SC (Plaintiff)
Mr M Algie (Plaintiff)
Mr R Perla (Defendant)
Solicitors:
Greg Walsh & Co (Plaintiff)
Elias Gates (Defendant)

File Number(s): 2021/219805
Publication restriction: Nil

JUDGMENT

Introduction

A little before 9am on 24 January 2021 there was a physical altercation between the plaintiff and the defendant at a residential property in the Sydney suburb of Greenacre (the property).
The plaintiff was injured, in particular to the right side of his face. He says these injuries, and their consequences, were caused by the unlawful assault upon him by the defendant. In this action he seeks damages arising from the alleged assault.
The defendant does not dispute that an altercation occurred. But he says that he was acting in self-defence. In addition, he relies on ss 52-54 of the Civil Liability Act 2002 (NSW) (the CLA). This exchange occurred with counsel for the defendant during the opening of the case:

“HIS HONOUR: What I gather, Mr Perla, is that as far as liability is concerned there’s either self-defence, in which case you might succeed, or there’s no self-defence in which case you will lose.
PERLA: Yes, your Honour.”

As far as the CLA is concerned, I do not think it has any applicability. For reasons which will appear below, I am satisfied that:

the actions of the defendant were intentional acts intended to cause injury, thus enlivening the exemption provided by s 3B(1) of the CLA; and

the self-defence provisions in Part 7, Division 1, have a gateway in s 52 requiring there to have been an unlawful act on the part of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Al Haje v Elassaad

Details

AGLC: Al Haje v Elassaad [2024] NSWSC 689
Case: [2024] NSWSC 689
Decision Date: 06 June 2024

CaseChat Overview and Summary

The parties in this case are Al Haje, the plaintiff, and Elassaad, the defendant. The dispute revolves around an incident where the defendant struck the plaintiff twice, leading to a claim of battery and assault. The case was heard in the Supreme Court of New South Wales. The plaintiff sought damages for the injuries sustained, which included both physical and psychological harm, as well as claiming aggravated and exemplary damages. The primary legal issue before the court was whether the defendant's actions were justified as self-defence, and if not, to what extent the plaintiff was entitled to damages. The court needed to determine the appropriate legal framework for assessing damages and whether the common law or the Civil Liability Act provided the correct basis for the award.

The court found that the defendant's actions were not justified as self-defence. The plaintiff's evidence demonstrated that the defendant's response was excessive and not necessary to protect himself from the plaintiff's alleged threats. Consequently, the court ruled that the defendant's actions amounted to battery and assault. The court then turned to the question of damages. It concluded that, while the Civil Liability Act might typically govern such claims, the common law was applicable here due to the nature of the aggravated and exemplary damages claimed by the plaintiff. The court awarded the plaintiff damages for general damages, covering both past and future economic loss, as well as past and future medical expenses. Additionally, the court granted an award for aggravated damages to reflect the defendant's conduct, and exemplary damages to deter similar behaviour in the future.

In summary, the court found that the defendant's actions were not justified by self-defence and thus amounted to battery and assault. The plaintiff was awarded damages under the common law, which included general damages, economic loss, medical expenses, and both aggravated and exemplary damages. The specific amounts awarded for each category of damages were detailed in the judgment, ensuring clarity and fairness in the resolution of this case.

Orders