Dickson v Chaffey (No 3)

[2012] NSWSC 1135

Supreme Court

New South Wales

Medium Neutral Citation:	Dickson v Chaffey & Anor (No 3) [2012] NSWSC 1135
Hearing dates:	18 September 2012
Decision date:	18 September 2012
Jurisdiction:	Common Law
Before:	Beech-Jones J
Decision:	Judgment for the Plaintiff against the First Defendant
Catchwords:	ASSAULT - ex parte hearing - no question of principle.
Legislation Cited:	Civil Liability Act 2002 - s 52
Cases Cited:	- Dickson v Chaffey and Reddawn [2012] NSWSC 336 - Dickson v Chaffey (No 2) unreported, NSWSC, 18 September 2012
Category:	Interlocutory applications
Parties:	Steven George Dickson (Plaintiff) Russell Peter Chaffey (First Defendant) Event Safety & Security Solutions Pty Ltd t/as Reddawn (Second Defendant)
Representation:	Counsel: I.D. Roberts SC, Ms K. Oldfield (Plaintiff) J.S. Carroll (Sol) (Second Defendant) Solicitors: Stacks Goudkamp (Plaintiff) Wotton + Kearney (Second Defendant)
File Number(s):	2010/401443

EX TEMPORE Judgment

1. The plaintiff was seriously injured in an incident that occurred in the early hours of 2 December 2007. He subsequently commenced proceedings against the first defendant, Russell Peter Chaffey, pleading that Mr Chaffey had assaulted him. Mr Chaffey was at the time of the incident engaged as a security guard by Event Safety & Security Solutions Pty Ltd, trading as Reddawn ("Reddawn", the former Second Defendant). He was performing duties outside "Q Bar" which is located within the licensed premises of the Exchange Hotel in Oxford Street, Surry Hills. The plaintiff also sued Reddawn on the basis that it was vicariously liable for Mr Chaffey's assault.

Background

1. On 13 April 2012 I published a judgment dismissing an application by Reddawn for summary judgment and, in the alternative, the striking out of the statement of claim (Dickson v Chaffey and Reddawn [2012] NSWSC 336) ("Dickson No 1"). However, I acceded to Reddawn's application for a hearing of questions of liability separate to those of quantum. The plaintiff had also agreed with that course. It was proposed by both Reddawn and the plaintiff to avoid the incurring of what might prove to be unnecessary expense in preparing medical reports.

1. Since that judgment, the insurer of Reddawn was substituted as the second defendant and the daughter of the plaintiff, Carly Dickson, was appointed his tutor and has continued the proceedings on his behalf.

1. The first defendant, Mr Chaffey, has been served on numerous occasions with various documents concerning the proceedings, but has not taken any part.

1. The proceedings were listed for hearing on all questions of liability before me today. The plaintiff and the substituted second defendant agreed on orders providing for a judgment in favour of a second defendant with no order as to costs. As the plaintiff is under a legal incapacity, it was necessary to obtain my approval for that settlement, which I gave (Dickson v Chaffey (No 2) unreported, 18 September 2012). After I gave approval, the balance of the matter proceeded ex parte against Mr Chaffey. I am satisfied that Mr Chaffey was given ample notice of the hearing today but declined to attend.

The assault

1. The plaintiff gave short oral evidence which confirmed the contents of an evidentiary statement which he had signed. His daughter, who is also his tutor, gave brief oral evidence which confirmed the terms of an evidentiary statement that she had signed. Both of those statements address the events that gave rise to what was said by the plaintiff to be the assault upon him.

1. On the evening of 1 December 2007 Ms Dickson and her partner went on a harbour cruise. After they returned from the cruise, she contacted her father and arranged to meet him for a drink at a hotel on the corner of Oxford and Riley Streets Sydney. He attended, and they consumed alcohol. Their statements and some medical reports that were tendered reveal that it is unclear as to how much, but that is not necessary to resolve.

1. At about 12.30am, according to Ms Dickson, she, her father and her partner left the Brighton Hotel and went to the Courthouse Hotel which is located on the corner of Flinders and Oxford Streets, Sydney. She recalls they had one drink. They left and walked down Oxford Street towards the city. They bought some pizza and continued walking along Oxford Street towards the Brighton Hotel. They went to that hotel and consumed two or three more drinks.

1. It was Ms Dickson's belief that they were over the legal limit for driving, but she states that she did not observe her father to be intoxicated. She said they left that hotel and continued walking towards Oxford Square. At this point they were seeking to hail a taxi. She recalls that her father followed her in her attempts to flag down a taxi. They both stopped near a gold coloured four-door sedan. She stood at the driver's side door and leaned slightly on the car so as to avoid standing in the direct line of on-going traffic. She recalls that her father stood to her left at the front wheel guard of the driver's side of the vehicle. She recalls that her father was also leaning on the vehicle.

1. The plaintiff has the same recollection. He recalls that when he lent on the vehicle, the alarm sounded, and he slapped the bonnet in an attempt to get the alarm to stop sounding, as it was very loud. He does not believe he caused damage to the vehicle. The conduct of Mr Dickson in leaning on the vehicle and slapping the bonnet appears to have prompted a reaction from the first defendant, who I infer was the owner of the vehicle.

1. The plaintiff recalls someone crossing Oxford Street from the direction of the Q Bar, and approaching him very quickly. He recalls the man appeared to be of a very large build. It was the first defendant, Mr Chaffey. Mr Dickson recalls that this man approached him and shouted at him words to the effect of "give me the money for the damage you have done to my car", and that the plaintiff replied "go and get f****d". Ms Dickson recalled similar words being stated by the first defendant, but she does not recall her father's reply.

1. Both describe an incident which occurred very quickly in which the first defendant advanced towards the plaintiff, and used his elbow to hit the left side of the plaintiff's head.

1. Ms Dickson's description, which I would expect to be the more accurate, given that she was the observer rather than the victim, involves the first defendant's elbow hitting the side of her father's head, him falling backwards and landing flat on his back on the road and hitting his head as he fell. She recalls her father did not appear to be moving and was unconscious.

1. She turned to the first defendant and said to him words to the effect of "what did you do that for". She recalls that he replied words to the effect of "he f***ing hit my car, it's a $40,000 car, have a look at the dent he put in the bonnet". She recalled that another man approached him, who may have been another security car from Q Bar, who congratulated the first defendant on his conduct in hitting Mr Dickson.

1. Ms Dickson called for an ambulance, and she recalls the police and ambulance arrived shortly afterwards.

1. There was also tendered before me a neurological report from a Dr Michael Fearnside dated 13 May 2011, and a report from a clinical psychologist Dr Pauline Langeluddecke dated 6 May 2011. As I am not addressing issues of quantum it is not necessary to describe these reports in much detail. Suffice to state that their reports indicate that the blow to the plaintiff's head and the subsequent fall to the ground inflicted significant injury. He was unconscious for a number of days. He underwent surgery which either included or consisted of a right frontal temporal craniotomy with drainage of a haematoma. He was managed in the intensive care unit with intubation and ventilation. He spent three months in a rehabilitation centre before being discharged home.

1. Both the reports describe in detail the significant affectation of Mr Dickson. As I have said, as I am not addressing issues of quantum in this judgment, it is unnecessary to say anything further at this point.

Findings

1. The evidence of the plaintiff and his daughter satisfies me that he was the subject of an unlawful assault. The only possible legal justification for the first defendant's conduct is to be found in s 52(1) and (2) of the Civil Liability Act 2002:

"52 No civil liability for acts in self-defence

(1)  A person does not incur a liability to which this Part applies arising from any conduct of the person carried out in self-defence, but only if the conduct to which the person was responding:

(a)  was unlawful, or

(b)  would have been unlawful if the other person carrying out the conduct to which the person responds had not been suffering from a mental illness at the time of the conduct.

(2)  A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:

(a)  to defend himself or herself or another person, or

(b)  to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or

(c)  to protect property from unlawful taking, destruction, damage or interference, or

(d)  to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,

and the conduct is a reasonable response in the circumstances as he or she perceives them."

1. Sub-section 52(2)(c) allows a person to carry out some forms of conduct in self defence if necessary to protect property from unlawful taking, destruction, damage, or interference. On the facts that I have accepted, there is no possibility of the first defendant invoking this section. The blow that he administered to the plaintiff occurred after any suggested damage or interference with his motor vehicle. The description of the first defendant as a person of significant size, compared with the average size of Mr Dickson, and the fact that they were some distance from the vehicle, confirm that by the time the blow was inflicted the first defendant could not have believed it was necessary to prevent any further damage or interference with his vehicle that he needed to inflict violence on the plaintiff. Further, and in any event, the first defendant's conduct could not be described as a reasonable response in the circumstances, as he might have perceived them.

Orders

1. The order that was made following Dickson No 1 was that "all questions relating to the liability of the defendant be determined separately and before all questions relating to damages". This form of order was proposed by the parties. I made it. In retrospect, it may have been more appropriate to identify more precise questions concerning liability, so that a precise answer could be given to the question.

1. In so far as the first defendant is concerned, there is only one question relating to his liability, bearing in mind the contents of the amended statement of claim namely: is the first defendant liable to the plaintiff for assault? The answer to that question is: yes. The consequence is that at this point I will enter judgment for the plaintiff against the first defendant in an amount to be determined.

1. In terms of quantum, I will make directions requiring the plaintiff to serve on the defendant an outline of the heads of damage that are claimed and the material in support. The matter will then come back before me for mention in order to ascertain whether the first defendant wishes to participate in the hearing. At that point I will determine the most appropriate and hopefully cost effective course to assess the quantum claimed.

1. Accordingly, I will make the following orders:

(1)   Judgment for the plaintiff against the first defendant in an amount to be assessed.

(2)   I direct the plaintiff on or before 5 pm on 12 October 2012 to serve on the first defendant an outline of its heads of damage, all medical records and other material relied upon on the question of damage, a copy of these reasons, and a letter notifying the first defendant that the matter will be listed for mention at 9.30 am on 23 October 2012 at which time he can attend and make submissions on the question of quantum if he so chooses, and that failing his attendance the matter may proceed in his absence.

(3)   I stand the matter over for further directions before me at 9.30 am on 23 October 2012.

(4)   There be liberty to apply.

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Decision last updated: 25 September 2012