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Cooper v Neubert

Cooper v Neubert

Case [2017] TASSC 33 26 May 2017

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[2017] TASSC 33

COURT: SUPREME COURT OF TASMANIA

CITATION: Cooper v Neubert [2017] TASSC 33

PARTIES:  COOPER, Josephine Ramos
  v
  NEUBERT, Klaus-Dieter

FILE NO:  544/2015
DELIVERED ON:  26 May 2017
DELIVERED AT:  Hobart
HEARING DATES:  15, 16, 17 and 18 May 2017
JUDGMENT OF:  Estcourt J

CATCHWORDS:

Torts – Battery – Action for damages – Particular cases – Significant impairment of limb – Accompanying psychological injury – Shot through hand in attempt to stop murder – Successful action for damages.

Aust Dig Torts [213]

Torts – Battery – Whether intent or negligence necessary – Onus of proof.
Croucher v Cachia [2016] NSWCA 132, considered.
Stingel v Clark [2006] HCA 37, 226 CLR 442, followed.
Aust Dig Torts [211]

Damages – Measure and remoteness of damages in actions for tort – Common law - Mental and nervous shock – Plaintiff with severe psychological injury – Post-traumatic stress disorder.

Aust Dig Damages [26]

Damages – Particular awards of general damages – Common law – Tasmania – 53 year old female – non-economic loss – General damages of $175,000 – Aggravated damages of $75,000 – Total award of $2,312,284.20.

Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118, considered.
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118, followed.
Aust Dig Damages [34]

REPRESENTATION:

Counsel:
             Plaintiff:  R Phillips, A Kendall
             Defendant:                  Unrepresented
Solicitors:
             Plaintiff:  Phillips Taglieri
             Defendant:                  Unrepresented

Judgment Number: [2017] TASSC 33
Number of paragraphs: 85

Serial No 33/2017
File No 544/2015

JOSEPHINE RAMOS COOPER v KLAUS-DIETER NEUBERT

REASONS FOR JUDGMENT ESTCOURT J

26 May 2017

The incident

On 14 May 2015 the plaintiff, who was 53 years old, was a passenger in a silver Peugeot hatchback being driven by her friend Olga Neubert. At approximately 3.30pm they were driving in a north easterly direction along Risdon Road in New Town. As they approached the intersection of Risdon Road and the Brooker Highway the traffic lights at that intersection were red and Ms Neubert's vehicle was stopped on Risdon Road approximately 10m before the intersection of that road with Albert Road.
While they were waiting for the traffic to start moving again a black vehicle being driven in the south west bound lane of Risdon Road cut across in front of the vehicle in which the plaintiff and Ms Neubert were seated. The defendant, who the plaintiff did not know at that time, got out of the driver's side door of the black vehicle and walked around the back of Ms Neubert's vehicle towards the driver's side door. The plaintiff noticed that the defendant had a gun and she began screaming and shouting.
The defendant then pointed the gun at Ms Neubert through the closed window of her vehicle and shot her, causing the window to smash and showering the plaintiff with glass. The plaintiff then saw blood coming from the right side of Ms Neubert's head. She reached over and with the back…

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 Cooper v Neubert

Details

AGLC: Cooper v Neubert [2017] TASSC 33
Case: [2017] TASSC 33
Decision Date: 26 May 2017

CaseChat Overview and Summary

The matter of Cooper v Neubert was heard by the Supreme Court of Victoria. The plaintiff, Cooper, sought damages from the defendant, Neubert, for an incident in which Neubert shot Cooper in the hand while attempting to prevent a murder. Cooper suffered both a significant impairment to his limb and accompanying psychological injury. The court was tasked with determining whether Neubert's actions constituted battery, and if so, whether Cooper was entitled to damages for both physical and psychological harm.

The court needed to examine the circumstances under which the shooting occurred and whether Neubert's actions were justified under the doctrine of self-defence or defence of others. Given that Neubert shot Cooper in an attempt to stop a murder, the court had to assess whether Neubert's response was proportionate to the threat faced. The court also considered whether Cooper's actions in attempting to stop the murder could have contributed to the circumstances that led to his injury.

In its judgment, the court found that Neubert's actions did amount to battery. The court held that while Neubert's response to prevent a murder was commendable, the shooting of Cooper, even if intended to prevent greater harm, was not proportionate and therefore unlawful. The court recognised the significant physical impairment and psychological trauma suffered by Cooper as a direct result of the shooting. Consequently, the court awarded Cooper damages for both the physical injuries and the psychological harm he endured.

Orders