Best v Rosamond

[2019] NSWDC 344

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Best v Rosamond [2019] NSWDC 344

Hearing dates:

16 – 17 July 2019

Date of orders:

24 July 2019

Decision date:

24 July 2019

Jurisdiction:

Civil

Before:

Abadee DCJ

Decision:

See paragraph 140.

Catchwords:

TORTS – intentional tort - assault.

 

LIMITATION OF ACTIONS – whether the plaintiff's action is time-barred by limitation period – discoverability – whether injury was “sufficiently serious to justify the bringing of an action on the cause of action” – whether claimant “ought to have known” of the relevant fact.

 

DAMAGES – past out-of-pocket expenses – future out-of-pocket expenses – general damages – diminution in earning capacity – aggravated damages.

  EVIDENCE – whether Jones v Dunkel inference should be drawn for failure to call third party witness.

Cases Cited:

Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454
Ditchburn v Seltsam Pty Ltd (1989) 17 NSWLR 697
Fabre v Arenales (1992) 27 NSWLR 437
Lamb v Cotogno (1987) 164 CLR 1
New South Wales v Ibbett [2006] HCA 57
New South Wales v Riley (2003) 57 NSWLR 496
Payne v Parker (1976) 1 NSWLR 191
Purkess v Crittenden (1965) 114 CLR 164; [1966] ALR 98
Rogers v Interpacific Resorts Australia Pty Ltd [2007] QSC 239
Royal North Shore v Henderson (1986) 7 NSWLR 283
State of New South Wales v Gillett [2012] NSWCA 83
Wardley v Western Australia (1992) 175 CLR 514

Category:

Principal judgment

Parties:

Mr Best (Plaintiff)
Mr Rosamond (Defendant)

Representation:

Counsel:
Mr K Andrews
Ms S Walsh

  Solicitors:
Wyatts Lawyers & Advisors
Rickards Whiteley Lawyers

File Number(s):

2018/253490

Publication restriction:

Nil

Judgment

INTRODUCTION

1. Prior to the very early hours of 10 January 2015, the plaintiff (Mr Best) and the defendant (Mr Rosamond) were the very best of friends. Mr Best was a self-described ‘restorer and repairer’ of classic vintage motor vehicles. Mr Rosamond was (at that point) a company director with managerial responsibility for a substantial group of companies in the event services industry. Mr Best had sold Mr Rosamond one of his expensive cars. Mr Rosamond had supplied the eulogy at the burial of Mr Best’s mother.

2. From about 1pm, or 2pm on 9 January 2015, Mr Rosamond and his then wife hosted a belated Christmas party for family and close friends at their home in an affluent suburb in the lower North Shore of Sydney. Mr Best was one of the guests.

3. In the very early hours of 10 January, Mr Rosamond assaulted Mr Best by punching him in the eye. Mr Rosamond later entered a guilty plea to the charge (initially) of recklessly inflicting bodily harm and (later) common assault. He also slapped his then wife. This much was admitted by him. Prior to this event, Mr Rosamond had had no prior record of violent conduct whatsoever. It was true that he had drunk much since the party the previous afternoon, but to whatever degree he was intoxicated did not prevent his recall of what happened. What…