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Davis v Viglianti

Davis v Viglianti

Case [2017] NSWDC 452 15 December 2017

Negligence

Battery

Compensatory Damages

Aggravated & Exemplary Damages

Costs

Tort Law

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District Court

New South Wales

Medium Neutral Citation: Davis v Viglianti [2017] NSWDC 452
Hearing dates: 9, 10 and 27 October 2017
Date of orders: 15 December 2017
Decision date: 15 December 2017
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Judgment for the plaintiff for $444,596.
(2) Defendant pay plaintiff’s costs.
(3) The asset freezing order made on 10 October 2017 (in relation to the plaintiff’s notice of motion filed on 6 October 2017) continued until further order.
(4) Liberty to restore in relation to interest, the asset freezing order currently in place and costs.
(5) Exhibits retained for 28 days.

Catchwords: TORT - claim for negligence, assault and battery - police attend plaintiff's premises late at night in response to concerns the plaintiff may self-harm - police officer ascends ladder to look into the plaintiff's window after a rope is seen dangling from the ceiling - police officer suffers injury putting his hand on the window sill due to razor blades embedded in the sill - whether defendant engaged in conduct that constituted in law a battery - whether the defendant was recklessly indifferent to the foreseeability of injury by leaving razor blades in the sill - claim for general, aggravated and exemplary damages - claim for economic loss - claim for domestic assistance - damages of $444,596 awarded
Legislation Cited: Civil Liability Act 2005 (NSW), ss 3B, 5B
Evidence Act 1995 (NSW), s 140
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 9
Cases Cited: Barker v R (1983) 47 ALR 1
BJ v Wilcox [2008] NSWSC 1332
Cheng v Ferjudi (2016) 93 NSWLR 95
Croucher v Cachia [2016] NSWCA 132
Dean v Phung [2012] NSWCA 223
Gray v Motor Accident Commission (1998) 158 ALR 485
McGlen-McLeod v Galloway [2012] NSWCA 368
New South Wales v Le [2017] NSWCA 290
Roads and Traffic Authority of New South Wales v Dederer (2007) 238 ALR 761
Smith v Copper Refineries Pty Ltd (Supreme Court of Queensland, Cullinane J, 7 September 1994)
State of New South Wales v Bouffler [2017] NSWCA 185
State of New South Wales v Exton [2017] NSWCA 294
White v Johnson (2015) 87 NSWLR 779
Woodley v Boyd [2001] NSWCA 35
Zeppelin v Commonwealth of Australia [2002] NSWSC 228
Texts Cited: Ipp, D., “Problems with Fact-Finding”, (2006) 80 Australian Law Journal 667
Stickley, A., “The Importance of Intention”, (2016) 13(7) CL 104
Category: Principal judgment
Parties: Plaintiff: Adam Davis
Defendant: Giancarlo Joseph Viglianti
Representation:
Counsel:
Plaintiff: Mr B J Symons
Defendant: Mr A Duc
Solicitors:
Plaintiff: Drexler & Partners Lawyers
Defendant: Saba Lawyers

File Number(s): 2016/192859
Publication restriction: None

Judgment

The plaintiff’s claim for damages for personal injury

The plaintiff, by statement of claim filed on 23 June 2016, seeks damages for assault and battery (paragraphs 3-13), or in the alternative negligence (paragraph 14), for injuries he suffered in the course of his duties as a police officer on 28 June 2013 when he and other officers attended the defendant’s home to arrest him.
The circumstances…

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 Davis v Viglianti

Details

AGLC: Davis v Viglianti [2017] NSWDC 452
Case: [2017] NSWDC 452
Decision Date: 15 December 2017

CaseChat Overview and Summary

The case of Davis v Viglianti involved a claim for damages against a police officer who attended the plaintiff’s premises at night due to concerns about potential self-harm. During the incident, the police officer ascended a ladder to look into the plaintiff’s window, where a rope was observed dangling. Upon placing his hand on the window sill, the officer was injured by razor blades that had been embedded in the sill. The plaintiff sought compensation for general, aggravated and exemplary damages, economic loss, and domestic assistance. The defendant, Officer Viglianti, was also accused of engaging in conduct that constituted battery and of being recklessly indifferent to the foreseeability of injury.

The legal issues before the court included whether the defendant’s actions constituted a battery under the law and whether the defendant demonstrated reckless indifference to the potential for injury by leaving the razor blades in the sill. The court needed to determine if the plaintiff’s injuries were directly caused by the defendant’s actions and if the defendant’s conduct could be considered reckless. Additionally, the court had to consider the nature and extent of the damages sought by the plaintiff, including general damages, aggravated damages, exemplary damages, economic loss, and domestic assistance.

The court found that the defendant’s conduct did indeed constitute battery as the officer had directly caused harm by placing his hand on the window sill. The court also concluded that the defendant was recklessly indifferent to the foreseeability of injury by leaving the razor blades in the sill. The court awarded the plaintiff $444,596 in damages, which included compensation for general, aggravated and exemplary damages, economic loss, and domestic assistance. The court further ordered that the defendant pay the plaintiff’s costs and that an asset freezing order remain in place until further order. Additionally, the court allowed for the restoration of interest on the asset freezing order and costs, and retained the exhibits for 28 days.

In summary, the court found in favour of the plaintiff, awarding significant damages and ordering the defendant to pay the plaintiff’s costs. The court’s decision was grounded in the finding that the defendant’s actions constituted battery and were done with reckless indifference to the potential for injury. The court also upheld the asset freezing order and allowed for the restoration of interest and costs, while retaining the exhibits for 28 days.

Orders

Orders of the court

(1) Judgment for the plaintiff for $444,596.

(2) Defendant pay plaintiff’s costs.

(3) The asset freezing order made on 10 October 2017 (in relation to the plaintiff’s notice of motion filed on 6 October 2017) continued until further order.

(4) Liberty to restore in relation to interest, the asset freezing order currently in place and costs.

(5) Exhibits retained for 28 days.

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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Citations

Davis v Viglianti [2017] NSWDC 452

Most Recent Citation

Davis v Viglianti, in the matter of Viglianti [2024] FedCFamC2G 505

Cases Citing This Decision

Davis v Viglianti, in the matter of Viglianti [2024] FedCFamC2G 505
Citation 1 (Para 1)

…ing Mr Viglianti’s home in the early hours of 28 June 2013. On 15 December 2017, judgment on those claims was given for Mr Davis: Davis v Viglianti [2017] NSWDC 452 ( First Judgment ). On 20 December 2018 Gibson DCJ delivered a further judgment which dealt with pre-judgment interest and costs: Davis v Viglianti (No…

See all citing cases →

Cases Cited

State of New South Wales v Exton [2017] NSWCA 294
Citation 1 (Para 86)

…enges the legality of the plaintiff’s entry into his premises. No objection was taken to these submissions (cf State of New South Wales v Exton [2017] NSWCA 294).…
State of New South Wales v Le [2017] NSWCA 290
Citation 2 (Para 112)

…h Wales Court of Appeal in Dean v Phung [2012] NSWCA 223 and White v Johnson (2015) 87 NSWLR 779, remains unresolved (see also New South Wales v Le [2017] NSWCA 290 at [24]-[26]). I was not addressed on these issues by the parties. While the simple answer would be to award the damages alternatively assessed by me u…
State of New South Wales v Bouffler [2017] NSWCA 185
Citation 3 (Para 88)

…f. The plaintiff must hold such a belief himself, as opposed to relying upon the belief of his superior officers: State of New South Wales v Bouffler [2017] NSWCA 185. The second issue is whether that belief was open on reasonable grounds: State of New South Wales v Bouffler at [231] – [243].…
Cheng v Farjudi [2016] NSWCA 316
Citation 4 (Para 138)

…the question of whether a suspended sentence was sufficient, noting the position in Canada, the New South Wales Court of Appeal, in Cheng v Ferjudi (2016) 93 NSWLR 95, referring to this line of authority, stated (at [104]) that it would be a most unusual case for an award to be made even in the circumstances of a non…
Croucher v Cachia [2016] NSWCA 132
Citation 5 (Para 106)

…Stickley, A., “The Importance of Intention”, (2016) 13(7) CL 104), but the relevant principles are most helpfully discussed in Croucher v Cachia [2016] NSWCA 132.…
MacDougal v Mitchell [2015] NSWCA 389
Citation 6

…Item Amount Reference General damages 80,000 MacDougal v Mitchell [2015] NSWCA 389. See Tobias AJA particularly at [24] with Meagher JA at [1] and Bergin CJ in Eq at [2] concurring Aggravated damages 20,000 See case outline / submissions Exemplary damages 50,000 See case outline / submissions Past economic loss Arm…
White v Johnston [2015] NSWCA 18
Citation 7 (Para 112)

…y Act 2002 (NSW) to a reckless battery, left unresolved by the New South Wales Court of Appeal in Dean v Phung [2012] NSWCA 223 and White v Johnson (2015) 87 NSWLR 779, remains unresolved (see also New South Wales v Le [2017] NSWCA 290 at [24]-[26]). I was not addressed on these issues by the parties. While the simple…
McGlen-McLeod v Galloway [2012] NSWCA 368
Citation 8 (Para 78)

…I note and adopt the approach the court should take in relation to issues of credit, as explained in McGlen-McLeod v Galloway [2012] NSWCA 368 and in Ipp, D., “Problems with Fact-Finding”, (2006) 80 Australian Law Journal 667.…
Dean v Phung [2012] NSWCA 223
Citation 9 (Para 112)

…the application of the Civil Liability Act 2002 (NSW) to a reckless battery, left unresolved by the New South Wales Court of Appeal in Dean v Phung [2012] NSWCA 223 and White v Johnson (2015) 87 NSWLR 779, remains unresolved (see also New South Wales v Le [2017] NSWCA 290 at [24]-[26]). I was not addressed on these…
Zreika v New South Wales [2009] NSWCA 99
Citation 10 (Para 43)

…or his police job”) Early retirement – 3 years lost from career 100,000 Per Dr Dias report at question 9, Zreika v State of NSW [2009] NSWCA 99 Ipp JA at [43] citing McClellan AJA in Penrith City Council v Parkes [2004] NSWCA 201 at [58]) – the plaintiff’s income earning capacity has been unquestionably diminished…
BJ by his next friend Brian Edward Jones v Wilcox & Anor [2008] NSWSC 1332
Citation 11 (Para 106)

…ant was intentional and done with intent to cause injury, meaning that the Civil Liability Act 2002 (NSW) does not apply: see s 3B(1)(a); BJ v Wilcox [2008] NSWSC 1332. There are similar provisions in Tasmania, Victoria and Western Australia (see Stickley, A., “The Importance of Intention”, (2016) 13(7) CL 104), but…
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42
Citation 12 (Para 119)

…In Roads and Traffic Authority of New South Wales v Dederer (2007) 238 ALR 761 at 764 Gleeson CJ described methods of deterring entry by trespassers involving shards of glass or razor wire as “extreme”:…
Penrith City Council v Parks [2004] NSWCA 201
Citation 13 (Para 58)

…eport at question 9, Zreika v State of NSW [2009] NSWCA 99 Ipp JA at [43] citing McClellan AJA in Penrith City Council v Parkes [2004] NSWCA 201 at [58]) – the plaintiff’s income earning capacity has been unquestionably diminished, but the effect of this is difficult to quantify Past domestic assistance Personal ca…
Zeppelin v Commonwealth of Australia [2002] NSWSC 228
Citation 14 (Para 129)

…of the plaintiff. As to the Army Reserve service, economic loss awards have taken such service into account, in Zeppelin v Commonwealth of Australia [2002] NSWSC 228 and in Smith v Copper Refineries Pty Ltd (Supreme Court of Queensland, Cullinane J, 7 September 1994).…
Woodley v Boyd [2001] NSWCA 35
Citation 15 (Para 91)

…ith the requirement of having to take some form of decision (and subsequent physical action) in circumstances of urgency or stress. In Woodley v Boyd [2001] NSWCA 35 at [37], Heydon JA described this decision-making process, in the context of making an arrest, as “the agony of the moment.” The mere presence of the…
Gray v Motor Accident Commission [1998] HCA 70
Citation 16 (Para 136)

…ry damages where criminal proceedings have resulted in a conviction was considered by the High Court of Australia in Gray v Motor Accident Commission (1998) 158 ALR 485, where the majority judgment set out a consideration of the potential for “double punishment” (at [49] – [52]), defining the issues for the court con…
Barker v The Queen [1983] HCA 18
Citation 17 (Para 96)

…As Mason J explains in Barker v R (1983) 47 ALR 1, the question of whether a person is a trespasser must be determined with care, frequently in accordance with the relevant statutory provisions, not by reference to their common law meaning. Nor should the concept of “trespasser” be determined in accordance with so…

Legislation Cited

Civil Liability Act 2005 (NSW) 3B, 5B
3 mentions (from Para 98)
Evidence Act 1995 (Cth) 140
2 mentions (from Para 81)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) 9
2 mentions (from Para 87)
Civil Liability Act 2002 (TAS)
1 mention (from Para 9)

Medium Neutral Citation:	Davis v Viglianti [2017] NSWDC 452
Hearing dates:	9, 10 and 27 October 2017
Date of orders:	15 December 2017
Decision date:	15 December 2017
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Judgment for the plaintiff for $444,596. (2) Defendant pay plaintiff’s costs. (3) The asset freezing order made on 10 October 2017 (in relation to the plaintiff’s notice of motion filed on 6 October 2017) continued until further order. (4) Liberty to restore in relation to interest, the asset freezing order currently in place and costs. (5) Exhibits retained for 28 days.
Catchwords:	TORT - claim for negligence, assault and battery - police attend plaintiff's premises late at night in response to concerns the plaintiff may self-harm - police officer ascends ladder to look into the plaintiff's window after a rope is seen dangling from the ceiling - police officer suffers injury putting his hand on the window sill due to razor blades embedded in the sill - whether defendant engaged in conduct that constituted in law a battery - whether the defendant was recklessly indifferent to the foreseeability of injury by leaving razor blades in the sill - claim for general, aggravated and exemplary damages - claim for economic loss - claim for domestic assistance - damages of $444,596 awarded
Legislation Cited:	Civil Liability Act 2005 (NSW), ss 3B, 5B Evidence Act 1995 (NSW), s 140 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 9
Cases Cited:	Barker v R (1983) 47 ALR 1 BJ v Wilcox [2008] NSWSC 1332 Cheng v Ferjudi (2016) 93 NSWLR 95 Croucher v Cachia [2016] NSWCA 132 Dean v Phung [2012] NSWCA 223 Gray v Motor Accident Commission (1998) 158 ALR 485 McGlen-McLeod v Galloway [2012] NSWCA 368 New South Wales v Le [2017] NSWCA 290 Roads and Traffic Authority of New South Wales v Dederer (2007) 238 ALR 761 Smith v Copper Refineries Pty Ltd (Supreme Court of Queensland, Cullinane J, 7 September 1994) State of New South Wales v Bouffler [2017] NSWCA 185 State of New South Wales v Exton [2017] NSWCA 294 White v Johnson (2015) 87 NSWLR 779 Woodley v Boyd [2001] NSWCA 35 Zeppelin v Commonwealth of Australia [2002] NSWSC 228
Texts Cited:	Ipp, D., “Problems with Fact-Finding”, (2006) 80 Australian Law Journal 667 Stickley, A., “The Importance of Intention”, (2016) 13(7) CL 104
Category:	Principal judgment
Parties:	Plaintiff: Adam Davis Defendant: Giancarlo Joseph Viglianti
Representation:	Counsel: Plaintiff: Mr B J Symons Defendant: Mr A Duc Solicitors: Plaintiff: Drexler & Partners Lawyers Defendant: Saba Lawyers
File Number(s):	2016/192859
Publication restriction:	None