Brighten v Traino

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.