Brighten v Traino

Case [2019] NSWCA 168


Court of Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Brighten v Traino [2019] NSWCA 168
Hearing dates: 15 March 2019
Date of orders: 08 July 2019
Decision date: 08 July 2019
Before: Basten JA at [1];
Gleeson JA at [134];
Brereton JA at [136]
Decision:

(1)   Allow the appeal and set aside orders 1 and 5 made in the District Court on 30 May 2018.
(2)   In their place:
(a)   Give judgment for the plaintiff against the third defendant in an amount of $187,734, to take effect from 30 May 2018;
(b)   Order that the third defendant pay 2/3rds of the plaintiff’s costs of the trial;
(c)   Dismiss the plaintiff’s claims against the first and second defendants;
(d)   Order that the plaintiff pay the first and second defendants’ costs of the trial.
(3)   Order that the third respondent pay half the appellant’s costs of the appeal.
(4)   Dismiss the appeal against the first and second respondents.
(5)   Order that the appellant pay the first and second respondents’ costs of the appeal, limited to the question of liability.
(6) Grant the third respondent a certificate under the Suitors’ Fund Act 1951 (NSW).

Catchwords:

EVIDENCE – expert evidence – use of psychometric testing – methodology experimental – lack of explanation justifying acceptance of methodology – plaintiff’s medical evidence discounted on basis of tests indicating plaintiff was disingenuous in answering test questions

 

TORTS – battery – plaintiff punched in the face – whether intentional act intended to cause injury – Civil Liability Act 2002 (NSW), s 3B(1)(a) – whether plaintiff grabbing the back of her assailant’s shirt unlawful – whether assailant acted in self-defence under Civil Liability Act, ss 52-53

 

TORTS – battery – damages – non-economic loss – causation – whether plaintiff suffered psychological injury – pre-attack psychological history – aggravated damages

 

TORTS – battery – damages – exemplary damages – effect of criminal conviction and sentence

TORTS – negligence – liability of licensee for battery by third party – whether duty of care owed to patrons outside licensed premises – obligations of licensee under Liquor Act 2007 (NSW) – breach
Legislation Cited: Civil Liability Act 2002 (NSW), ss 3A, 3B, 50, 51, 52, 53, 54, 58; Pt 2, Pt 6, Pt 7, Div 1;
Crimes Act 1900 (NSW), ss 35, 418, 420, 422; Pt 11, Div 3
Liquor Act 2007 (NSW), ss 3, 73, 77
Cases Cited: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48
Amanda’s On the Edge Pty Ltd v Dries [2011] NSWCA 358
Blacker v Waters (1928) 28 SR (NSW) 406
Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91; (1998) 91 ALR 149
Collingwood Hotel Pty Ltd v O’Reilly [2007] NSWCA 155
Collins v Wilcock [1984] 1 WLR 1172
Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132
Lamb v Cotogno (1987) 164 CLR 1 at 8; [1987] HCA 47
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA…

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AGLC
Brighten v Traino [2019] NSWCA 168
Case
[2019] NSWCA 168
Decision Date

CaseChat Overview and Summary

The appeal in *Brighten v Traino* concerned a plaintiff who suffered a punch to the face, leading to claims of battery and negligence against various defendants, including the assailant and a licensee. The dispute involved the admissibility and weight of expert evidence, particularly psychometric testing used to assess the plaintiff's credibility, and the application of self-defence provisions under the *Civil Liability Act 2002* (NSW). The court also considered the liability of a licensee for a third party's battery occurring outside licensed premises and the assessment of damages, including non-economic and exemplary damages, in light of the plaintiff's pre-existing psychological condition and the assailant's criminal conviction.

The primary legal issues before the Court of Appeal were whether the trial judge erred in admitting and relying upon expert evidence based on psychometric testing that was considered experimental and lacked sufficient justification for its acceptance. The court also had to determine whether the plaintiff's actions in grabbing the assailant's shirt were unlawful, thereby potentially negating the assailant's claim of self-defence under sections 52-53 of the *Civil Liability Act 2002* (NSW). Further, the court examined the extent of a licensee's duty of care to patrons outside their premises and the proper assessment of damages for psychological injury, including the impact of the plaintiff's prior psychological history and the appropriateness of aggravated and exemplary damages.

The Court of Appeal allowed the appeal in part, finding that the trial judge had erred in discounting the plaintiff's medical evidence based on the psychometric testing. The court held that the methodology of the psychometric testing was experimental and lacked a sufficient explanation to justify its acceptance, particularly in its application to assess the plaintiff's truthfulness. Consequently, the court set aside the original orders and entered judgment for the plaintiff against the assailant (the third defendant) for battery, awarding damages for non-economic loss and other heads of damage. The claims against the first and second defendants (presumably the licensee and another party) were dismissed, with the court finding no breach of duty of care. The court also made orders regarding costs and granted a certificate under the *Suitors’ Fund Act 1951* (NSW) to the third respondent.

Orders

Orders of the court

(1) Allow the appeal and set aside orders 1 and 5 made in the District Court on 30 May 2018.

(2) In their place:

(a) Give judgment for the plaintiff against the third defendant in an amount of $187,734, to take effect from 30 May 2018;

(b) Order that the third defendant pay 2/3rds of the plaintiff’s costs of the trial;

(c) Dismiss the plaintiff’s claims against the first and second defendants;

(d) Order that the plaintiff pay the first and second defendants’ costs of the trial.

(3) Order that the third respondent pay half the appellant’s costs of the appeal.

(4) Dismiss the appeal against the first and second respondents.

(5) Order that the appellant pay the first and second respondents’ costs of the appeal, limited to the question of liability.

(6) Grant the third respondent a certificate under the Suitors’ Fund Act 1951 (NSW).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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