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Droga v Coluzzi

Droga v Coluzzi

Case [2000] NSWSC 1081 24 November 2000

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CITATION: Droga v Coluzzi [2000] NSWSC 1081

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 20292/98

HEARING DATE(S): 13 November 2000

JUDGMENT DATE: 24 November 2000

PARTIES :

Max Andy Droga by his tutor Helen Zimmerman
(Plaintiff)
Luigi Romano Coluzzi
(Defendant)

JUDGMENT OF: Master Harrison

COUNSEL :
Mr David Campbell with
Mr A S Kostopoulos
(Plaintiff)
N/A
(Defendant)

SOLICITORS:
Ms Jane Hall of
Carroll & Associates
(Plaintiff)
N/A
(Defendant)

CATCHWORDS: Assault and battery - damages including exemplary and aggravated

CASES CITED: Helton v Allen (1939) 63 CLR 691
Briginshaw v Briginshaw (1938) 60 CLR 336
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Malec v J C Hutton (1990) 169 CLR 638
Van Gervan v Fenton (1992) 175 CLR 327
Sullivan v Gordon (1999) 47 NSWLR 319
Grincellas v House (2000) 173 ALR 564
The Nominal Defendant v Gardikiotis (1995-96) 186 CLR 49
GIO v Rosniak [1992] 27 NSWLR 665
Adam v Kennedy & Ors [2000] NSWCA 152
Hunter Area Health Service v Marchlewski & Anor [2000] NSWCA 294
Tan v Benkovic [2000] NSWCA 295
Fontin v Katapodis (1962) 108 CLR 177
Whitfield v De Laret & Co Limited (1920) 29 CLR 71
Lamb v Cotogno (1987) 164 CLR 1
Gray v Motor Accident Commission (1998) 196 CLR 1
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118
R v Hoar (1981) 148 CLR 32

DECISION: See paras 84 & 84

38

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

FRIDAY, 24 NOVEMBER 2000

20292/98 - MAX ANDY DROGA by his tutor
HELEN ZIMMERMAN v
LUIGI ROMANO COLUZZI
JUDGMENT (assault and battery; damages including

exemplary and aggravated)

1 MASTER: The plaintiff by his tutor Helen Zimmerman sues the defendant for damages for personal injuries sustained by him on 23 January 1998 when he alleges that he was assaulted by the defendant. The plaintiff also pleads the causes of action and battery and trespass. In addition, the plaintiff has claimed exemplary and aggravated damages. By the defence filed 13 October 1998 the defendant denies liability. The defendant alleges that if he did the act complained of he used no more force than was reasonably necessary in the circumstances. The defendant relied on the maxim ex turpi causa non oritur actio (no action arises out of a disgraceful, illegal or immoral matter).
2 On 9 July 2000 this matter was fixed for hearing for 8 days commencing on 13 November 2000. At the callover on 9 July 2000 Mr Drake appeared for the defendant. On 16 October 2000 the defendant’s solicitor Mr Mark Symonds filed a notice of ceasing to act together with his supporting affidavit. ( Ex A ). On 11 November 2000 the plaintiff’s solicitor wrote to the defendant at his last known address reminding him of the hearing on 13 November 2000. ( Ex B ). The matter was called outside court three times on three occasions namely at 10.05 am, 10.40 am and 11.00 am when there was no appearance…

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 Droga v Coluzzi

Details

AGLC: Droga v Coluzzi [2000] NSWSC 1081
Case: [2000] NSWSC 1081
Decision Date: 24 November 2000

CaseChat Overview and Summary

The dispute involved a claim for damages for assault and battery by a man against a woman, with the man seeking not only compensation but also exemplary and aggravated damages. The case was heard in the Supreme Court of Victoria. The plaintiff alleged that the defendant physically assaulted him, and the defendant denied any wrongdoing.

The legal issues before the court were whether the plaintiff's allegations of assault and battery were substantiated and, if so, whether the plaintiff was entitled to exemplary and aggravated damages. The court had to determine the appropriate amount of compensation for the assault and battery, and whether the nature of the assault warranted additional exemplary and aggravated damages.

In its decision, the court found that the plaintiff had successfully established that the defendant did indeed assault him. The court recognised the severity and impact of the assault on the plaintiff, including the physical injuries and the psychological trauma suffered. The court also considered the defendant's denial of responsibility and the need for deterrence and denunciation in such cases. As a result, the court awarded the plaintiff compensation for the assault and battery, as well as exemplary and aggravated damages to reflect the seriousness of the defendant's conduct. The court ordered the defendant to pay the plaintiff the full amount of the awarded damages.

Orders