Farjudi v Cheng

[2015] NSWDC 297

District Court

New South Wales

Medium Neutral Citation:

Farjudi v Cheng [2015] NSWDC 297

Date of orders:

09 November 2015

Decision date:

09 November 2015

Jurisdiction:

Civil

Before:

Sidis ADCJ

Decision:

1. The proceedings are adjourned to a date to be fixed to deal with the issues of costs and interest and to make final orders.

 

Further Orders:

 

2. Verdict and judgment for the plaintiff in the sum of $210,927.

 

3. The defendant is to pay the plaintiff’s costs of the proceedings including those arising out of the notice of motion dated 6 November 2015 on an ordinary basis up to 13 April 2015 and thereafter on an indemnity costs basis.

 4. The exhibits are to be retained for 28 days.

Catchwords:

Personal injury; intentional tort; assault; self-defence; proportionality of response; issue estoppel and guilty plea; claims of right and duty; assessment of damages for psychological injury; aggravated and exemplary damages; use of photographs and CCTV footage.

Legislation Cited:

Civil Liability Act 2002

Cases Cited:

Blacktown City Council v Hocking [2008] NSWCA 144; Warren v Gittoes [2009] NSWCA 24
State of NSW v McMaster [2015] NSWCA 228
Sangha v Baxter [2009] NSWCA 78
Ashley v Chief Constable of Sussex Police [2008] 1 AC 962
Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26
Fontin v Katapodis [1962] HCA 63
Underhill v Sherwell [1997] NSWCA 325
Lamb v Cotogno (1997) 164 CLR 1
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118
Hunter Area Health Service v Marchlewski [2000] NSWCA 294
Whitford v De Lauret & Co Ltd (1920) 29 CLR 71
Tilden v Gregg [2015] NSWCA 164
Gray v Motor Accidents Commission [1998] HCA 70.

Texts Cited:

Fleming's Law of Torts, 10th Edition, Thomson Reuters (2011)

Category:

Principal judgment

Parties:

Plaintiff - Rostam Farjudi
Defendant - Jeffery Wai Chan Cheng

Representation:

Counsel:
Plaintiff - Mr de Greenlaw
Defendant - Mr Hallion

  Solicitors:
Plaintiff - Bellissimo Lawyers
Defendant - Luminous Legal

File Number(s):

2014/184227

Publication restriction:

None

Judgment

1. On 15 September 2011, while on the premises of the Parramatta Leagues Club, the plaintiff was assaulted by the defendant. The plaintiff claimed damages for injuries said to be the consequence of the assault.

2. The defendant claimed that he acted in defence of his wife and relied on the provisions of ss 52 and 53 of the Civil Liability Act 2002. He also challenged the plaintiff’s claims of injury and the extent to which any injury resulted in long term disability.

The Assault

3. There was no doubt that the defendant struck the plaintiff with at least one blow to his face. This much could be seen on the CCTV footage captured on the Club’s security camera and the defendant conceded that he struck the plaintiff once on the face.

4. The evidence concerning the assault was confused and conflicting. I heard five accounts of the circumstances in which the assault on the plaintiff took place. The majority of the evidence was given through interpreters. Each party attempted to clarify the evidence upon which they relied by reference to the CCTV footage, some of which was reproduced in the form of still frames. Each party warned me of the dangers of relying too heavily on photographic material and referred me to comments to that effect in decisions such as Blacktown City Council v Hocking [2008] NSWCA 144 and Warren v Gittoes [2009] NSWCA 24.

5. In Hocking the Court of Appeal was concerned that photographic evidence not be used as a means of conjecture when, in appropriate cases, some explanation through technical evidence of what they depicted was required. At [169 – 170] Tobias JA said:

169 It should be noted that the use by a trial judge of photographs is nothing new. They can, as the authorities to which I have referred confirm, be descriptive of what a witness says he or she saw, being a representation of the witness’ knowledge and observations. But they should not be used by a judge to make findings of fact which are otherwise unsupported by the evidence and are therefore no more than conjectural: Schmidt v Schmidt [1969] QWN 3 at 6; Beaton v McDivitt (1985) 13 NSWLR 134 at 142.

170 Thus in United States Shipping Board v The Ship St Albans [1931] AC 632 Lord Merrivale, in delivering the advice of the Judicial Committee of the Privy Council, observed (at 642) that the use of photographic evidence must be the subject of “careful delineation” particularly as a means of proof of matters of fact. This is not to say that photographs can have no probative value of themselves even in the absence of an oral description of what is depicted; only that care must be taken to ensure that they are not used as the sole source from which a primary fact is to be inferred where that fact is not revealed on the face of the photographs such as the condition of a structure at a time significantly removed from that when the photographs were taken.

6. Technical or expert opinion would have been of little assistance in the interpretation of the photographic evidence in the current case and there was a plethora of oral evidence put forward to explain what was depicted in the CCTV footage and the stills extracted from it from which appropriate inferences could be drawn.

7. Having viewed the CCTV footage and the photographs, I noted the very rapid escalation of the dispute and the very short space of time in which the skirmish involving the plaintiff and the defendant took place. Somewhat understandably, the oral evidence was confused and conflicting and it was difficult to put together a clear account of precisely what occurred.

Established Facts

8. The plaintiff and his wife, Mrs Jamileh Farjudi, and the defendant and his wife, Ms Jessie Gao (for convenience referred to in the proceedings as Mrs Cheng), were all present in the smoking section of the Reno gambling room at the Parramatta Leagues Club at about 9:30 pm on 15 September 2011. They were all playing poker machines.

9. The poker machines were set up in two rows so that gamblers in one row sat with their backs to gamblers in the other. Mrs Farjudi sat with her back to Mrs Cheng and her poker machine. The defendant sat immediately to the left of Mrs Cheng. The plaintiff played poker machines on the same side of the room as the defendant that were positioned a short distance away and outside the range of the CCTV camera.

10. All of the poker machines that were within the range of the CCTV camera were occupied. An acquaintance of the defendant and Mrs Cheng, referred to informally by her as “uncle” sat at the poker machine immediately to the left of Mrs Cheng.

11. Mr Chau stood between this man and Mrs Cheng watching and conversing with them as they gambled. A man stood beside and to the right of the defendant and another tall, well-built man stood behind the defendant. The congregation of persons around the defendant, Mrs Cheng and the man referred to as uncle caused this part of the room to become congested.

12. All witnesses agreed that the combination of the sound from the poker machines and from the conversation taking place around the defendant and Mrs Cheng elevated the noise levels in the room. Mrs Farjudi and another woman playing at the poker machine to her left were disturbed by this noise. They asked the defendant and his party to quieten down. They were ignored.

13. The noise increased significantly when the poker machine played by either the defendant or Mrs Cheng returned a jackpot. Mrs Farjudi turned and asked for quiet. The words she used and those of the defendant in response were in dispute.

14. The plaintiff overheard an exchange between Mrs Farjudi and the defendant, although not the words. He walked to the area where they were seated, partially passing the large man standing behind the defendant.

15. He turned to face the defendant and Mrs Cheng and raised his left arm. The defendant stood and he and the plaintiff became engaged in a fight in the course of which the defendant pursued the plaintiff across the room.

16. After the encounter the plaintiff was transported by ambulance to Westmead Hospital. The defendant attended Parramatta Police Station and provided a statement.

The plaintiff’s claim

17. The plaintiff’s claim of assault was clearly made out. The issues that arose dealt with the extent to which the plaintiff himself engaged in any violence towards the defendant and the number of punches that the defendant delivered to the plaintiff’s face.

18. The plaintiff claimed that he was taken completely by surprise by the defendant’s attack and that he did nothing other than attempt to defend himself. The defendant claimed that they each pushed against the other and that the plaintiff continued to push him throughout the encounter with both his left and right hands and arms.

19. The CCTV footage did not support the defendant’s claim. It depicted the plaintiff reeling from a blow delivered by the defendant to the left side of the plaintiff’s face. The delivery of this blow was also depicted in photographs 23 and 24 of Exhibit E. At that time the plaintiff’s left arm was raised by way of defence and his right arm remained behind the back of the large man who had been standing behind the defendant. The plaintiff’s arm remained there, at one time clinging to the fabric of the large man’s clothing, until he lost his grip and raised his right arm to fend off the defendant’s right arm that was aimed at him (Photograph 36, Exhibit E). The plaintiff continued to move backwards against the defendant’s advancing aggression until they both moved out of the range of the CCTV camera.

20. At no stage could it be said that the plaintiff engaged in a pushing action or any other action that was other than by way of defence against the defendant’s aggression.

21. The plaintiff claimed that the defendant struck his face up to three times. The defendant admitted one punch to the plaintiff’s face and firmly denied any other. The blow that was admitted was directed at the right side of the plaintiff’s face and was probably the one that caused the facial fracture diagnosed after X-ray at Westmead Hospital. The delivery of this blow was clearly recorded on the CCTV footage and in photographs 46 and 48 of Exhibit E. The defendant said that he ceased to direct further aggression towards the plaintiff after delivering this blow. The CCTV footage indicated that this part of his evidence was wrong.

22. The defendant denied that the CCTV footage showed the delivery of another blow at the opening stage of the assault. Photographs 25 and 26 and a frame by frame viewing of CCTV footage indicated that the defendant was also wrong in this evidence. In fact, although he continued to claim that he punched the plaintiff on the face only once, on one occasion during the evidence he stated that those photographs depicted the one blow that he admitted he delivered to the plaintiff’s face.

23. While the CCTV footage and photograph 43 provided the suggestion that a third blow was delivered, I was not satisfied that it was sufficiently clear to make a firm finding to this effect.

24. I find that the defendant assaulted the plaintiff delivering at least two blows to his face.

The claim of self defence

25. The following provisions of the Civil Liability Act 2002 (“the Act”) are relevant to the defendant’s claim that he acted in defence of Mrs Cheng in his assault on the plaintiff:

3B Civil liability excluded from Act

(1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows:

(a) civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person—the whole Act except:

(i) section 15B and section 18 (1) (in its application to damages for any loss of the kind referred to in section 18 (1) (c)), and

(ii) Part 7 (Self-defence and recovery by criminals) in respect of civil liability in respect of an intentional act that is done with intent to cause injury or death, and

(iii) Part 2A (Special provisions for offenders in custody)…

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.

(3) This section does not apply if the person uses force that involves the intentional or reckless infliction of death only:

(a) to protect property, or

(b) to prevent criminal trespass or to remove a person committing criminal trespass.

53 Damages limitations apply even if self-defence not reasonable response

(1) If section 52 would operate to prevent a person incurring a liability to which this Part applies in respect of any conduct but for the fact that the conduct was not a reasonable response in the circumstances as he or she perceived them, a court is nevertheless not to award damages against the person in respect of the conduct unless the court is satisfied that:

(a) the circumstances of the case are exceptional, and

(b) in the circumstances of the case, a failure to award damages would be harsh and unjust.

(2) If the court determines to award damages on the basis of subsection (1), the following limitations apply to that award:

(a) Part 2 (with the exception of Division 3 of that Part) applies with respect to the award of damages despite section 3B (1) (a), and

(b) no damages may be awarded for non-economic loss.

26. In State of NSW v McMaster [2015] NSWCA 228 Beazley P said at [187] that s 52 of that Act involved three elements:

1. The conduct of the other person must be unlawful;

2. The person must have believed that the conduct was necessary to defend another person;

3. The conduct must have been a reasonable response in the circumstances.

27. In dealing with conduct that was “unlawful” for the purposes of s 52(1)(a), her Honour said at [202] that it encompassed a criminal offence or a civil wrong. Further, she confirmed at [165] and [202] that the defendant in civil proceedings bears the onus of establishing all elements of the defence, including that of proportionality.

28. In Sangha v Baxter [2009] NSWCA 78 Basten JA said at [151] that the conduct of the person relying on the defence must be judged on the basis of:

1. A subjective belief of the person that the conduct is necessary for one of the reasons prescribed in s 52(2); and

2. A partly objective assessment of whether the conduct is a reasonable response in the circumstances as perceived by that person.

Justice Basten warned against the danger in labelling the second limb as objective because it depended upon the subjective perceptions of the person involved in the conduct.

29. The defence arose out of the claim that the plaintiff struck the left side Mrs Cheng’s face and her left ear. The defendant claimed that he acted in order to protect his wife after this assault by the plaintiff.

30. The defendant did not see the plaintiff’s assault on his wife. He relied on the evidence of Mrs Cheng and Mr Chau, a bystander, and the CCTV footage and photographs. The men standing beside and behind the defendant were not called and the plaintiff took no issue on this point.

31. There was some commonality in the accounts provided by the witnesses and that of the defendant and I accepted that it was unlikely that all witnesses would have the same recollection of a disturbing event that occurred in the space of less than one minute. There were, however, some significant discrepancies that suggested that not all of their evidence was reliable.

32. The only person who claimed to have witnessed this assault was Mr Chau. He said he was a friend of the defendant and Mrs Cheng, that he met them through his cousin and that he dined with them. Mrs Cheng denied knowing Mr Chau well, saying that she had dinner only with his wife.

33. Mr Chau was the man seen on the CCTV footage standing between the seats occupied by Mrs Cheng and the man referred to as uncle. He agreed that there was much noise in the Reno room and that the poker machine players on the opposite side of the room complained that the group of which he was a part were talking too loudly. He heard someone tell the defendant to “shut up” and he heard the defendant respond: “you shut up”. He did not know to whom the defendant responded.

34. He then saw a man, whom he identified as the plaintiff, walk towards them, reaching a point where he was one third past the large man standing behind the defendant. This was consistent with the point he marked on the floor plan, Exhibit 4, the plaintiff’s evidence and the CCTV footage.

35. Mr Chau had difficulty putting into words his physical demonstration of the movement of the plaintiff’s left arm as, on his account, he extended it to slap the face of Mrs Cheng. Mr de Greenlaw, counsel for the plaintiff, provided the following description of the movement indicated by Mr Chau:

DE GREENLAW: Would your Honour note that he moved his arm from about a foot and a half from the left of his body to directly in front of his left shoulder? (Transcript 195.29)

36. Mr Chau did not know how much force was used in the blow, saying:

I know he’s hit Jessie pretty hard. (Transcript 206.2)

37. He drew this conclusion from his observation that Mrs Cheng, after the blow, momentarily touched the left side of her face in the region of her left ear. At the time of the blow, Mrs Cheng was seated at her poker machine, facing and playing it. She remained seated. He thought that, after she was struck, she turned about 45 degrees to her right. He was 100% sure that the plaintiff struck Mrs Cheng.

38. He said nothing after the assault, except for a Chinese word in the nature of an exclamation of shock. He did not point to the plaintiff but he watched him as he took a step backwards and began to argue with the defendant. He did not hear the words used in this argument. He was unable to describe in detail the fight that followed.

39. Mrs Cheng said that she sat facing her poker machine when she felt heat and pain on the left half of her face and a noise in her left ear. She realised that someone had struck her.

40. She heard someone, whom she could not identify, say:

“Why this person hit you?” (Transcript 342.2)

41. She asked:

“Who is it?” And my friend on my left told me, “It’s him.” (Transcript 342.41)

42. The friend to the left was Mr Chau. This was inconsistent with Mr Chau’s evidence. He did not point in the plaintiff’s direction. She turned her head to her left and saw a man standing behind her whose hands dropped down. She identified this man as the plaintiff.

43. She said she was shocked and in fear. She stood because she was scared and leaned against her poker machine and told the defendant that the plaintiff hit her. This was inconsistent with the evidence of Mr Chau, the defendant and the CCTV footage. The defendant also stood. He said to the plaintiff:

“Don’t touch my wife”. (Transcript 353.19)

44. At this point the plaintiff stood facing her and the defendant. She did not hear the words used by the plaintiff and the defendant in the argument that followed before they started pushing each other.

45. Mrs Cheng agreed that the force of the blow delivered was such that it left a red mark on her face. Her evidence concerning this mark was somewhat confused. She said she knew it was there because she could feel the mark and the heat when she touched her face to ease the pain. She did not, however, touch her face immediately after the plaintiff hit her, as stated by Mr Chau. She said she had no time to care for her face at the time the fight started. She did so after it ended.

44. As might be expected, the plaintiff and Mrs Farjudi denied that he assaulted Mrs Cheng.

45. The plaintiff initially said that he did not hear the words his wife used on the last occasion when she asked the defendant and his party to be quiet. In cross examination he claimed that he heard his wife asking the defendant and his party to be quiet, a request with which they failed to comply.

46. He said he also heard a male voice say “shut up” and he noticed that Mrs Farjudi became distressed. He did not know who said these words but said he could see that Mrs Farjudi was talking to the defendant. Challenged on the extent to which he could have heard these words or seen the defendant in the crowded and noisy confines of the poker machine room, the plaintiff insisted that he was able to do so.

47. The plaintiff said he noticed that Mrs Farjudi and the defendant’s party became engaged in an argument and he moved towards them.

48. He partially passed the large man standing behind the defendant and raised his left arm as he asked the defendant: “What is happening?” The defendant stood up and, before the plaintiff finished the question, punched him on the face and pushed him as a consequence of which he fell. The defendant punched the plaintiff again while his friends intervened in an attempt to stop him.

49. The plaintiff denied that he was very angry about what was happening. He agreed that he moved quickly and that he raised his arm. He agreed that he brought his arm down. He said it was at this point that the defendant punched him.

50. The plaintiff emphatically denied:

1. That, as he raised his arm, he struck Mrs Cheng from behind;

2. That, after bringing his arm down, he stood and confronted Mrs Cheng;

3. That he saw any woman in the area;

4. That he heard Mrs Cheng scream.

53. The plaintiff said the defendant punched him twice. He denied that, in the course of the scuffle, the defendant shouted at him: “He touched my wife”. He denied providing a contrary statement to police. The defendant did not tender any such statement in evidence.

54. Mrs Farjudi said that, after asking for quiet a number of times without result, she turned and said to the defendant, who was making the noise:

“Will you shut up?” (Transcript 220.49)

55. The defendant replied:

“Shut up, you – fuck you”. (Transcript 221.14)

56. She said the defendant was facing her as these words were exchanged.

57. The plaintiff approached and she saw him raise his left hand. She heard him say: “Please” to the defendant who then jumped up and hit him. She was unable to see the plaintiff’s left arm and hand at the time he spoke to the defendant.

58. The only relevant challenges to Mrs Farjudi’s evidence related to the words she used when she spoke to the defendant, whether he swore at her in response and her precise seating position. These were matters that were not critical to my determination of the issues raised by the conflicts of evidence between the various witnesses. Mrs Farjudi was not cross-examined on the more critical aspect of her evidence that the plaintiff spoke only one word before the defendant assaulted and hit him.

59. In the light of the many conflicts in the evidence, the essential issue was whether the defendant established that the plaintiff committed “an unlawful act” as required by s 52(1)(a) of the Act. Unless this was established, the plaintiff’s claim was exempted from the operation of the Act.

60. In order to establish an unlawful act in the nature of assault or battery there must be evidence that the plaintiff had intentional direct physical contact with Mrs Cheng or that his conduct was in some way intimidating or threatening.

61. When the conflicts in the evidence of the defendant, Mrs Cheng and Mr Chau were analysed, it became apparent that there was little support for either of these propositions and discrepancies in their evidence were such that I considered it insufficiently reliable to be accepted in preference to that of the plaintiff and Mrs Farjudi.

62. The most serious difficulty facing the defendant was the proposition that the plaintiff struck Mrs Cheng as he raised his left arm. There was no doubt that the plaintiff raised that arm. He and Mrs Farjudi confirmed this. The question was whether, in the course of raising it, he also extended in the manner described by Mr Chau so as to make contact with left or further side of Mrs Cheng’s face.

63. The plaintiff’s denial of contact was supported by the CCTV footage that depicted the plaintiff’s extending his arm as he made his way between a man seated at the poker machine opposite the defendant and the large man standing behind the defendant. The plaintiff’s forearm and hand were obscured as he raised them by the position of the large man. They appeared again when his hand was raised further with an open palm facing towards him. The forearm and hand were positioned at that point behind the large man’s head and most of the plaintiff’s body remained positioned behind the large man’s body. Photographs 11, 12, 13 and 14 of Exhibit E were stills taken from CCTV footage depicting the upward movement of the plaintiff’s arm.

64. It was apparent from the CCTV footage that it was improbable that the plaintiff was able to extend his arm a sufficient distance to reach the left hand side of Mrs Cheng’s face in her seated position facing her poker machine.

65. Further, although Mrs Cheng’s head was obscured in the footage, her right hand was visible. Her hand continued to move over the buttons of the console as she continued to play the poker machine until after the plaintiff’s hand was fully raised. I considered it improbable that this activity would continue if, as she and Mr Chau described, she received a stinging blow to her face and ear.

66. Mrs Cheng did not immediately stand as she claimed. This was confirmed by the defendant, Mr Chau and the CCTV footage. She did not stand until after the defendant commenced his assault on the plaintiff. At this point she stood in front of her poker machine, showing no sign of distress or touching her face.

67. The shocked expression on Mr Chau’s face did not appear until after it became apparent that a fight was about to take place. Mr Chau said he did not tell Mrs Cheng that it was the plaintiff who struck her. Mrs Cheng said he did. There was no other evidence that indicated that someone else provided this identification.

68. Mr Chau saw Mrs Cheng touch her face immediately after she received a “stinging blow”. As already noted, Mrs Cheng said she did not touch her face until after the fight between the defendant and the plaintiff concluded.

69. The defendant provided two statements to police. The first was made immediately at 10 pm on 15 September 2011 and the second, electronically recorded, on 29 September 2011. The defendant’s police statements and, initially the defence, claimed that the plaintiff struck the back of Mrs Cheng’s head. The amended defence claimed that the blow was to the left back and side of her head. The statement of issues relied on at the hearing referred to a slap and burning sensation to the left side of Mrs Cheng’s face that resulted from a blow delivered in a down stroke. Mr Chau said the plaintiff’s hand moved up as he struck Mrs Cheng.

70. There were other significant discrepancies between the account provided to police and the defendant’s evidence at the hearing of the plaintiff’s claim. In the electronically recorded interview, the defendant said:

Q39   Can you tell me what happened? What is your version of what happened?

A   (interpreter) Okay. I was sitting next to my wife. I heard some shouted “why did you hit me?” and my wife said “you hit me”. So I hit him.

…

Q49   So I will just recall – you heard this man say “why did you hit me?”   

A   (interpreter) The man shouted and my wife responded and as I turned to them I saw the man holding his fist so I hit the man.

…

Q68   Did you see him hit your wife?

A   (interpreter) No I did not, but I heard my wife shout it, I heard her screamed. At the time there were only a couple of Asian men, and he was the only man there. I first – to my mind, I thought he must be the man who hit my wife.

71. No witness suggested that the plaintiff formed a fist with either hand and he was not shown to do so on the CCTV footage.

72. The defendant claimed that he and the plaintiff pushed each other as they moved across the Reno room. He said the plaintiff pushed with both of his hands and that both of his hands were visible before the assault started. This was a clear contradiction of the CCTV footage that depicted the plaintiff’s right hand behind the back of the large man until he and the defendant turned the corner past the poker machines. The plaintiff was then shown using both hands to shield his face against the ongoing attack by the defendant.

73. The defendant claimed that he did not see the plaintiff strike Mrs Cheng because he was facing his poker machine at the time of the alleged blow. He was taken to still photographs that were extracted from the CCTV footage. He denied that those photographs indicated that his recollection of the direction he faced at the relevant time was wrong. Those photographs demonstrated that his head was turned to the left and away from the poker machines in a position where the plaintiff’s arm would have been clearly visible to him had he reached across to strike Mrs Cheng’s face.

74. These were examples of some of the many discrepancies in the evidence of the defendant and his witnesses and the inconsistencies between their evidence and the images provided by the CCTV footage. Taken with the improbability that the plaintiff could have performed the physical action described by Mr Chau, I concluded that the plaintiff’s version of the events surrounding the assault upon him by the defendant should be accepted.

75. The self defence claim based upon actual unlawful conduct of the plaintiff therefore failed.

76. The issue then to be decided was whether the plaintiff’s conduct was such as to threaten or intimidate Mrs Cheng to the point where the defendant acted upon the subjective belief that it was necessary to intervene to protect her from danger. This was not raised in argument by the defendant nor was there evidence to support it.

77. The defendant claimed repeatedly in the course of his evidence that he acted to protect Mrs Cheng. However, he also said that he asked the plaintiff twice “Why did you touch my wife?” suggesting that his claim was based not upon the threat of violence but upon actual violence.

78. Further, there was no evidence that the plaintiff directed any threatening language towards Mrs Cheng or any spoken words at all. The plaintiff himself said that he did not look at her and did not notice that she was there. The defendant elevated this statement to the status of a denial by the plaintiff that Mrs Cheng was present in the Reno room. This was not the plaintiff’s evidence, nor could such an inference be drawn. The plaintiff simply stated that his attention was directed towards the defendant in the split second in which he faced him to remonstrate about the treatment of Mrs Farjudi before the defendant’s attack.

79. Further, as already noted, Mrs Cheng remained facing the poker machine and continued to play her poker machines until such time as the defendant reacted to the plaintiff’s presence. It was apparent that, although she claimed to be in fear, in reality she apprehended no threat from the plaintiff.

80. It was difficult to comprehend what it was that could have caused any belief on the defendant’s part that Mrs Cheng was in need of defence from a 68 year old pensioner who had no quarrel with her. The plaintiff pointed out that in neither police statement did the defendant make reference to self defence or a need to defend Mrs Cheng. I considered this might be an understandable omission in the case of a person with limited command of the English language and untrained in matters of criminal law.

81. In this case, however, I find that the defendant’s statements to police that he hit the plaintiff, not because of an apprehended threat, but in retaliation for an assault committed upon Mrs Cheng, coupled with the absence of evidence of any assault, battery or threat to the wellbeing of Mrs Cheng, denied the defendant any basis for a belief, subjective or objective, that it was necessary to direct violence towards the plaintiff in order to defend her.

82. Accordingly, the defendant failed to establish that he acted in the belief that it was necessary to defend Mrs Cheng and I rejected the claim of self defence based upon threatening and intimidating conduct.

83. The failure of this defence took the proceedings beyond the ambit of the Act and within the ambit of the common law. In McMaster at [211] Beazley P said that the common law defence remained available and distinct from the defence provided for in s 52(1) of the Act; the distinction being that unlawful conduct is not an element at common law.

84. The principles applying to self defence at common law, as set out in Fleming’s Law of Torts, 10th Edition, differ only marginally from those incorporated into the Act. They require:

1. Intentional conduct;

2. In the case of battery, harmful or offensive contact with another person’s body or invasion of that person’s personal integrity [2.60];

3. In the case of assault, conduct that causes another person to apprehend imminent, harmful or offensive contact. The issue is not whether the aggressor intended to put into effect the threatening conduct. The issue is whether the conduct caused the other person to apprehend imminent harm [2.70].

85. In respect of defences to intentional torts, Fleming provides the following principles:

1. Retaliatory attacks are not permitted.

2. Revenge is not permitted in cases where the danger has passed.

3. A person who is attacked may respond to ward off the assailant but:

1. Provocation that does not threaten physical security is not sufficient to warrant a defensive physical response;

2. Proportionality is required so that:

1. Only so much force may be used as is required for purely defensive purposes;

2. The degree of force used must be proportionate, having regard to the threat.

4. There is a distinction between the criminal law and common law so that:

1. Section 418 of the Crimes Act 1900 provides for facts to be assessed as the accused honestly believed them;

2. At common law, the defendant’s belief must be both honest and reasonable: Ashley v Chief Constable of Sussex Police [2008] 1 AC 962.

5. In respect of the defence of others, Fleming acknowledges that there exists a right to protect another against an aggressor and that, as in the case of self defence, allowance should be made for any reasonable mistake by the intervenor concerning the need to act and the proportionality of the response.

86. Again, subjective and objective elements are involved. In McMaster Beazley P referred to the test in Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26; 162 CLR 645 that required that two elements be satisfied:

1. The intervener must believe subjectively that it was necessary to what he or she did in self defence; and

2. Any such belief must be based on reasonable grounds.

87. Having regard to my findings that the defendant did not establish that he acted in the belief that it was necessary to defend Mrs Cheng, the defence at common law also failed. For the reasons given in paragraph 88(4), it would also have failed on the ground that the degree of force used was disproportionate to the apprehended threat.

88. Four other issues arose in the context of the self defence argument. Having regard to my findings of fact leading to the conclusion that the defence failed, it was unnecessary to decide whether these claims assisted either of the parties. They were:

1. Issue estoppel: the defendant was charged with the offence of Assault Occasioning Actual Bodily Harm as a result of his assault upon the plaintiff. He entered a guilty plea to the charge and was convicted of the offence. He was placed on a good behaviour bond for a period of 12 months pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999. The plaintiff contended that the plea of guilty constituted an admission against the defendant in respect of the claim of self defence. I accepted that the plea might be taken into account in deciding the issues in the civil proceedings if evidence was provided concerning the nature of the facts put before the court when the plea was entered. I did not accept that a plea of guilty necessarily raised an issue estoppel for two reasons:

1. There may be many reasons why an accused elects to adopt that course of action rather than take a risk that, after an extended criminal trial, the court would return a guilty verdict and impose a harsher penalty;

2. The proceedings before the Local Court involved no hearing or determination of the elements and issues required in a finding of guilt to the offence of Assault Occasioning Actual Bodily Harm.

2. The claim of right: this claim appeared in paragraph 10 of the Defence. Whilst, as noted, Fleming confirmed a right to protect others against aggression, nothing in that text suggested that there existed any separate right on the part of a husband to take action in defence of his wife nor was there any suggestion that in that circumstance any additional or special considerations applied.

3. Duty: In the same paragraph of his Defence the defendant referred to “a duty of a husband to protect his wife”. Similarly there was no reference in Fleming to any duty on the part of any person to intervene in order to defend another against aggression and there is little logic in modern jurisprudence in accepting that a duty is owed to a wife, as distinct from any other person with whom a man might have a personal relationship or, indeed as distinct from any other individual.

4. Proportionality: I made it clear in the course of addresses that, had I been persuaded that the defendant acted in defence of Mrs Cheng, I would not have accepted that the defendant, subjectively, believed that his conduct towards the plaintiff was a reasonable response in the circumstances as he said he perceived them or that, objectively, there were reasonable grounds for him to behave as he did. The defendant knew that he was a younger, taller man of apparently greater strength and physical fitness than the plaintiff. His assault on the plaintiff was made without permitting him any opportunity to deny or explain the allegation that he assaulted Mrs Cheng. The plaintiff was given no warning of the assault and it involved the pursuit of the plaintiff beyond removing him from a position where he posed a danger to Mrs Cheng. On the defendant’s own evidence he pursued the plaintiff with the intent to hit him because he touched Mrs Cheng. He fulfilled that intention by striking the plaintiff at least twice with sufficient force to cause significant physical and psychological injury.

In McMaster Beazley P at [144] confirmed the authority of Fontin v Katapodis [1962] HCA 63; 108 CLR 177 and Underhill v Sherwell [1997] NSWCA 325 that the defence of self defence fails if excessive force is used. My finding on the element of proportionality necessarily therefore also denies the plaintiff a verdict on the basis of self defence.

The Damages Claim

89. An ambulance was called to the Club and ambulance officers placed a cervical collar on the plaintiff’s neck before transporting him to Westmead Hospital. CT scans were undertaken disclosing a fracture to the floor of the right orbit. The plaintiff was discharged from the Hospital the following morning with pain in the region of his eyes and nose, blurred vision and bruising around both eyes.

90. The plaintiff’s general practitioner, at that time, Dr Saba, recorded that on 26 September 2011 the plaintiff complained to him of headache, dizziness, blurred vision in his right eye, anxiety and left sided neck pain.

91. The fracture to the right orbit healed without apparent residual consequence. The plaintiff complained, however, that he continued to suffer from headaches, dizziness and from Post Traumatic Stress Disorder to the point where he was significantly debilitated in his every day life.

89. At the time of the assault the plaintiff was 68 years old and in receipt of an age pension. He had not been in full time income earning employment since 1995 following a motor vehicle accident in which he suffered injury to his back and neck. As a consequence, he made no claim for loss of income earning capacity.

90. He claimed for general damages, out of pocket expenses, past and future, gratuitous attendant care, past and future, interest and aggravated and exemplary damages. He asserted that the circumstances of his injury were such that the constraints upon recovery of damages imposed by the Civil Liability Act 2000 did not apply.

General Damages

94. The main concern of the damages claim related to the plaintiff’s psychological condition following the assault and the diagnosis of Post Traumatic Stress Disorder made by Dr Oldtree Clark, psychiatrist. The principal symptom of the disorder complained of by the plaintiff was depression that left him lethargic and without motivation. The depression was contributed to by sleep deprivation caused by continuing distressing nightmares that occurred every night and woke him in a sweat, sometimes several times a night, and of continuing frequent headaches and ongoing dizziness.

95. The plaintiff described as the result of these symptoms a life of irritability, impatience and little activity. He described a typical day as one in which he rose after a restless and broken night’s sleep, drank tea and sat in the courtyard or watched television. He then took a nap until his grandchildren returned from school and woke him with their noise.

96. The plaintiff claimed that he no longer engaged in the social activities he enjoyed prior to the assault when he and Mrs Farjudi and their many friends visited each others’ homes. He no longer patronised the Parramatta Leagues Club, although he occasionally had dinner with Mrs Farjudi at the Ryde Club. He rarely went out of the house. His wife encouraged him to go out from time to time but he never went without her. He retained his own car that he drove for short distances only and rarely in the absence of Mrs Farjudi.

97. He no longer enjoyed the company of his three grandchildren. He went shopping rarely. He and his wife shared a bed up to the time of the assault. Since the assault, the nightmares from which he suffered disturbed Mrs Farjudi’s sleep so that they now have separate beds. He claimed that their relationship and intimacy suffered.

98. In essence the plaintiff described a life with little pleasure or joy. Mrs Farjudi confirmed the plaintiff’s evidence.

99. The defendant’s challenges to the plaintiff’s claims were extensive. He challenged the extent to which the symptoms of which the plaintiff now complained pre-existed the assault and suggested that medical records indicated that his treatment since the assault had been minimal and did not support his claim to be suffering from an ongoing disabling psychological disorder.

100. The plaintiff was extensively cross-examined in relation to a large quantity of medical records that, taken in isolation, might support the defendant’s contentions. When I examined those records as a whole, however, a different picture emerged.

Pre-existing medical history

101. The plaintiff conceded that he suffered from emotional upset following his mother’s death in 1984 and that shortly thereafter he first experienced symptoms of epilepsy and depression. In 1995 he suffered injuries to his back and neck in a motor vehicle accident. Those injuries, coupled with epilepsy and depression were such that for a period he was totally unfit for work and received a disability support pension. He returned to work on a part time basis. A second motor vehicle accident in 2005 caused minor injuries only.

102. The plaintiff and Mrs Farjudi said that by September 2011 he had no symptoms of depression, his epilepsy was controlled by medication and his physical injuries were of little concern.

103. Medical records to which I was referred by the defendant confirmed this pre-existing history. In May 1995 the plaintiff’s general practitioner, Dr Saba reported that he suffered from ongoing uncontrolled epilepsy as well as the physical injuries resulting from the motor vehicle accident. In October and November 1996 Dr Saba reported depression reactive to epilepsy. The epilepsy was controlled with medication so that the plaintiff experienced two brief fits per week lasting for seconds only without disability. He was able to drive. His depression was continuing but he did not take anti-depressant medication and had not seen a psychiatrist. He was fit for light work after rehabilitation and retraining.

104. In December 2002 Dr Saba reported mild symptoms from epilepsy, chronic neck and back pain and depression with severe impacts on his ability to function for which he was treated with anti-depressants. In his report of July 2005 Dr Saba said nothing of depression, although the remaining symptoms continued and a new condition of hyperlipidaemia was noted.

105. The medical records in evidence contained no further reference to depression or any other psychological condition between December 2002 and prior to the assault. Other unrelated complaints and treatment were reported, including complaints of dizziness.

106. Dr Charbel, cardiologist, in April 2011 reported a long standing history of dizziness, a condition that was improving with reduced doses of Tegretol, the medication prescribed to control the plaintiff’s epilepsy. This report was consistent with the evidence of the plaintiff and Mrs Farjudi that, at the time of the assault, the plaintiff’s epilepsy was under control, that the level of medication had been reduced and that his dizzy spells were intermittent only.

Post-assault medical history

107. The plaintiff continued to consult Dr Saba as his general practitioner after the assault and up to Dr Saba’s retirement in 2013. His clinical notes were brief. The initial post assault notes dealt with the physical injuries affecting the plaintiff’s facial bones and bruising.

108. The first reference to psychological symptoms appeared in a note of 26 September 2011 when Dr Saba described the plaintiff as “very uptight, upset”. On 20 October 2011 he was described as “very anxious”.

109. The date of 21 November 2011 appeared in the schedule of prescriptions as that upon which a prescription for an anti-depressant was issued. There is no reference to this prescription in Dr Saba’s notes. There were notes recorded in January 2012 and April 2012 of increasing concern and upset on the part of the plaintiff. Counselling was provided on 23 April 2012 and the plaintiff was referred to Dr Dowla, neurologist, for investigation.

110. The plaintiff consulted Dr Dowla on 26 April 2012. Dr Dowla reported no evidence of neuropathy. He attributed the plaintiff’s seizures to panic attacks and prescribed anti-depressant medication. He saw the plaintiff again in July 2012 and reported that he was feeling better with occasional dizziness.

111. Dr Saba continued the anti-depressant medication in May and July 2012 and continued to counsel the plaintiff. He recorded long discussions with the plaintiff about his medications and psychological symptoms in August, October and November 2012 and in January 2013.

112. In October 2012 the plaintiff consulted Mr Darrin Hooper, psychologist, on referral from and funded by the Commissioner of Victims Rights. Mr Hooper recorded the plaintiff’s complaints of sleep disturbance, nightmares, fatigue, impaired memory and concentration, dizziness, headaches, nervousness, ease of startle, social avoidance and adverse reaction to TV programs depicting violence. Mr Hooper provided 10 hours of counselling and in January 2013 he reported that the plaintiff continued to suffer from ongoing symptoms of Post Traumatic Stress Disorder that included hypervigilance to threat, active avoidance, recurring flashbacks of the event and disturbed sleep. He reported that the plaintiff scored 43 on the K-10 questionnaire, administered on 15 December 2012. This, he said, was within the high range and indicated a severe mental health disorder.

113. After Dr Saba’s retirement the plaintiff consulted Dr Majid Golsham Maghadam (referred to in evidence as Dr Golsham). The first clinical note in the evidence of Dr Golsham was dated 16 October 2013. He reported that the plaintiff was feeling well enough to cease anti-depressant medication. There were notes dated December 2013 and March 2014 that referred to pain after helping a friend clean a carpet and a friend move house.

114. In March 2015 Dr Golsham reported complaints of reduced motivation, low mood and low energy. He completed a Mental Health Care Plan and referred the plaintiff to Dr Pishyar, psychologist. The plaintiff did not follow up this referral when his mood improved. Dr Golsham issued a further referral in May 2015 after a consultation with the plaintiff in which he gave a history of the assault, Dr Saba’s treatment, continuing nightmares and panic attacks at night.

115. Notes in June and October 2015 recorded dizziness coinciding with panic attacks at night that Dr Golsham recorded as secondary to hyperventilation, recurrent depression since the assault, poor concentration and very low motivation. He recorded that Mrs Farjudi was forcing the plaintiff to shower. Dr Golsham noted that a referral to a psychiatrist would be made if counselling did not assist.

116. Dr Golsham reported in June 2015 to the plaintiff’s solicitors:

Given the extent of his emotional trauma during which he was beaten in front of his wife in September 2011, I believe it will be a need for long term management to assist his mood and help recovery of his Depression. His cultural background of being a migrant from Iran makes his recovery even more difficult as he may not be able to come in term with such incident that a man at his age being beaten in front of his wife due to cultural pride and the assumed role of the man as protector of family.

117. There was some delay in arranging consultation with Dr Pishyar, who was said to be overseas. At the time of the hearing he had seen the plaintiff only once, on 12 October 2015. His consultation record contained details of the plaintiff’s pre-assault medical history and the symptoms of which he complained after the assault that were consistent with those recorded in the medical records to that date and reference to a treatment plan.

118. In summary, the treating practitioners recorded symptoms of a consistent nature from November 2011 to January 2013 after which there appeared to be a period of remission before complaints resurfaced in March 2015. The symptoms at that time were considered by Dr Golsham to be sufficiently serious to warrant the preparation of a Mental Health Care Plan and referral for psychological counselling.

Medico-legal reports

119. Dr Curran, physician, examined the plaintiff on 2 March 2015. He recorded that the plaintiff complained of headaches, insomnia, dizziness, nightmares and flashbacks. He noted that anti-depressant medication ceased because of their side effects. Dr Curran recorded the plaintiff’s ongoing physical problems that were unrelated to this assault and diagnosed a Chronic Pain Syndrome. He recorded that the plaintiff had used Endone and Panadeine Forte on a long term basis and expressed concern that he was addicted to opioids. The PBS prescription records did not support the contention of long term consistent use of opioids nor did the plaintiff claim that he relied upon them. I therefore disregarded this aspect of the report for the purpose of assessing the plaintiff’s claim. As a result the only matter of significance arising from Dr Curran’s report was his recommendation that the plaintiff’s psychiatric issues be addressed by an appropriate specialist.

120. Dr Oldtree Clark examined the plaintiff on 4 March 2015. He accepted Mr Hooper’s report of symptoms of Post Traumatic Stress Disorder and formally diagnosed this disorder as the condition from which the plaintiff suffered. He also recorded symptoms that were consistent with those contained in the clinical notes. He said the plaintiff’s condition was stable but that he had not recovered and his condition was unlikely to change in the foreseeable future. He recommended that the plaintiff undergo psychotherapy and noted that he was reliant upon Mrs Farjudi for care.

121. Dr Mellick examined the plaintiff on 29 April 2015 and recorded symptoms that were consistent with those contained in the clinical notes. He said that there was no clear organic explanation for those symptoms and that the headaches and dizziness of which the plaintiff complained did not correspond with an epileptic event. He concluded therefore that his complaints were stress related, that they were occasioned by the assault and he accepted that the plaintiff continued to suffer from nightmares, social avoidance and fearfulness.

122. Dr Akkerman examined the plaintiff on 27 April 2015. He was critical of the absence of a Mental State Examination in Dr Oldtree Clark’s report which, he said, was the objective part of the psychiatric examination where the psychiatrist reports on signs and symptoms that are present and also on those that are not present. As a result Dr Akkerman considered Dr Oldtree Clark’s opinion to be of little value. In expressing this criticism Dr Akkerman appeared to overlook that part of Dr Oldtree Clark’s report that, while not headed as a Mental State Examination, noted that the plaintiff’s self-care appeared to be good, that he was able to relax in conversation and that he became “quite upset” when recalling the events of the assault.

123. Dr Akkerman reported that the plaintiff “volunteered” the symptoms of nightmares and social avoidance. Under the heading Mental State Examination he described the plaintiff as relaxed, not irritable or tearful or hypervigilant. His short term memory was normal and he was not upset when he described the event of the assault at length. He expressed the opinion that the plaintiff suffered from minor symptoms that were insufficiently severe to amount to a psychiatric disorder.

Inconsistent activity

124. The defendant put questions to the plaintiff to suggest that he continued to work with Mrs Farjudi in a business selling from a market stall T-shirts manufactured by members of her family. The plaintiff denied that he held any interest in this business. He said he occasionally went with his wife to the stall from which the T-shirts were sold and performed only very light tasks while there. No evidence to the contrary was put before the court.

125. Mr George, private investigator, undertook surveillance of the plaintiff over seven days in October and November 2015. His evidence was of little assistance to the court because of the deception involved in its acquisition and presentation.

126. He deceived the plaintiff on 23 October 2015 in order to gain entry to his property. The plaintiff said he did not like him and he engaged in his own deception when he told Mr George that he did not own the property and claimed to be a handyman.

127. Mr George also provided footage of the plaintiff walking in an area close to his home on 2 November 2015. He presented it in a manner that was designed to mislead the court into accepting that on this occasion, and contrary to his evidence that he does not go out alone, the plaintiff commenced his walk unaccompanied. In fact, he left his home with Mrs Farjudi and his daughter. Photographs indicated that they walked ahead of the plaintiff at the outset. It was not possible to determine whether they continued to walk ahead of the plaintiff because a number of clips within the footage had been deleted.

128. However, it must be acknowledged that the plaintiff conceded that, as reported by Mr George, he cleaned a fly screen on 23 October 2015 and that a photograph, taken by Mr George on that date under the guise of photographing the garden of the property, depicted the plaintiff holding an item in his hand. Notwithstanding the plaintiff’s refusal to acknowledge it, the item that he held was a screwdriver.

129. The cleaning of the fly screen appeared to involve relatively minor physical effort. His purpose in holding a screwdriver while alone at the property with the uninvited Mr George, a man of considerable height and bulk and Mr George’s very sizable companion was not made clear.

130. Further, although the plaintiff denied any memory of these activities, his general practitioner recorded he assisted in activities of carpet cleaning in December 2013 and house moving in March 2014. These activities were recorded during a period of apparent remission of symptoms. There was no evidence to suggest that any later traumatic incident caused the recurrence of symptoms of some severity in early 2015.

Assessment

131. The evidence of some inconsistent activity was suggestive of a level of embellishment by the plaintiff of the symptoms of his condition. In addition, it was apparent from the medical records that the plaintiff’s psychological symptoms fluctuated in severity with periods of remission.

132. Notwithstanding these factors there were a number of features of the evidence concerning his condition that persuaded me to accept the diagnosis of Post Traumatic Stress Disorder. They were:

1. I noted consistency of the symptoms of which the plaintiff complained to the various medical practitioners, both treating and medico-legal, with the apparent exception of Dr Akkerman.

2. In dealing with Dr Akkerman’s report, I noted that he did not record fully the information provided to him for the purposes of his report, referring only to the report of Dr Oldtree Clark. It was unclear therefore whether he was informed of the plaintiff’s history of consistent complaint to treating practitioners of significant and continuing symptoms.

3. More importantly, Dr Akkerman was very much in the minority. All other practitioners who examined the plaintiff accepted that his symptoms were psychologically and not physiologically based.

4. I considered the reports of Mr Hooper to be of considerable importance in my assessment. He was a practitioner who was entirely independent of the parties to the litigation. He set out clearly and concisely the symptoms he noted during an extended period of treatment of the plaintiff that resulted in his conclusion that the plaintiff suffered from a severe mental disorder.

5. On my observation of the plaintiff’s presentation during the extended period in which he was cross-examined, he suffered a very obvious deterioration in his condition.

133. I find that as a consequence of the defendant’s assault on the plaintiff, the plaintiff suffered:

• Injury to his right eye in the nature of a fracture to the right orbit;

• Facial bruising;

• Post Traumatic Stress Disorder manifesting in depression and anxiety and in physical symptoms of dizziness and headaches.

134. I accepted that the amount claimed for general damages in the sum of $100,000 was reasonable.

Out of Pocket Expenses

135. Past out of pocket expenses that were subject to the charge of the Health Insurance Commission were agreed in the sum of $2,500. The claim for a buffer for doctor’s visits and a further sum for medication was unsupported by evidence that expense additional to that met by the public health system were incurred and was therefore not allowed.

136. For the future the plaintiff claimed for the expenses of ongoing treatment by his general practitioner, psychiatrist and for medication. The plaintiff has to date been somewhat resistant to treatment by way of clearly needed psychotherapy and given the lapse of time since his condition developed I was concerned that the treatment, if provided, would be of questionable benefit. I therefore discounted the amount claimed to $5,000 to allow for some form of intervention to assist the plaintiff.

137. The amounts claimed for general practitioners and medications were considered reasonable and were allowed in the sum of $23,009.

Domestic Assistance

138. The evidence in this case satisfied me that the plaintiff was in need of attendant care and that Mrs Farjudi and her daughter filled the plaintiff’s needs on a gratuitous basis.

139. There were a number of considerations to be taken into account in assessing what was reasonable by way of compensation for the plaintiff’s loss of capacity to undertake his own attendant care.

140. The first was the difficult of assessing the reasonable level of need where the plaintiff has the physical capacity to perform everyday household functions but, by reason of mental ill health, lacks the motivation to do so. Added to this was the evidence that, although minimalised by the plaintiff and Mrs Farjudi, prior back and neck injuries placed some restrictions on his capacity to perform the heaviest of household duties. Further, the medical records suggested that the course of the plaintiff’s Post Traumatic Stress Disorder has been and will be one of fluctuating symptoms with periods of remission.

141. Taking these matters into account, I reduced by one third the claims made for care on a weekly basis, both past and future, to arrive at $40,824 for the past and $15,594 for the future.

142. I also had regard to the plaintiff’s age and the probability that his capacity will reduce as an ordinary incident of aging and I reduced the amount claimed as a buffer by one half to $5,000.

Aggravated damages

143. It is customary to award damages under this heading to a plaintiff who suffers increased distress as a result of the manner in which a defendant behaves when committing the wrong or thereafter. The qualification for their award is that the conduct of the defendant is of the type that increased the plaintiff’s suffering. In Lamb v Cotogno (1997) 164 CLR 1 at 8, aggravated damages were described as “compensatory in nature, being awarded for injury to the plaintiff’s feelings caused by insult, humiliation and the like”.

144. The leading case in this area is Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 where Windeyer J at 152 described the necessary conduct as “insulting” or “reprehensible” or capable of causing the plaintiff to suffer indignity or outrage to his or her feelings.

145. A number of authorities, including Hunter Area Health Service v Marchlewski [2000] NSWCA 294 considered that elements such as injured feelings or distress or difficulties in overcoming distress were often more appropriately dealt with in the award of compensatory damages.

146. In this case, while I have noted Dr Golsham’s comments concerning the particular difficulties arising from the plaintiff’s cultural background, I considered that those difficulties were adequately taken into account in assessing his general damages.

Exemplary damages

147. Exemplary damages are awarded as a form of punishment, to deter repetition of reprehensible conduct by the defendant or by others or to act as a mark of the court’s disapproval of that conduct. They may be awarded for conduct involving a deliberate, intentional or reckless disregard for the plaintiff and his or her interests. The objects of the award may include condemnation, admonition, making an example of the defendant, appeasement of the plaintiff in order to temper an urge to exact revenge, or the expression of strong disapproval.

148. The term repeatedly relied upon as the basis for the award of exemplary damages was first expressed by Knox CJ in Whitford v De Lauret & Co Ltd (1920) 29 CLR 71 at 77 as: “conscious wrongdoing in contumelious disregard of another’s rights”.

149. It might be argued that all of these considerations apply in this case. The defendant was younger, bigger, stronger and fitter than the 68 year old plaintiff. He engaged in no conversation with the plaintiff before commencing his violent attack on him. He gave him no opportunity to defend himself, and he caused him considerable injury. In the course of the attack his violence extended to Mrs Farjudi when she attempted to restrain him. His conduct was clearly reprehensible.

150. The defendant has been dealt with under the criminal law. He accepted his guilt to a charge of Assault Occasioning Actual Bodily Harm. He now has a criminal conviction against his name.

151. In Tilden v Gregg [2015] NSWCA 164 the defendant’s assault on the plaintiff also resulted in a criminal charge to which he entered a guilty plea. Justice Meagher referred to Gray v Motor Accidents Commission [1998] HCA 70; 196 CLR 1 at [46] in noting the principle that a civil court, when considering whether it was appropriate to award aggravated or exemplary damages, would ordinarily proceed on the basis that the criminal conviction and sentence of the assailant had adequately dealt with the elements of punishment and deterrence.

152. The plaintiff submitted that the penalty of a 12 month good behaviour bond was minimal and unlikely to meet these objectives. I considered that there was some merit to this submission, particularly having regard to changed position adopted by the defendant in his denial of guilt and liability in the civil proceedings. The position taken in these proceedings was effectively that his conduct was justified by his belief of an affront to Mrs Cheng. Even had I accepted that the plaintiff assaulted Mrs Cheng in the manner alleged, as I made it clear, I would not have accepted that the defendant’s conduct was reasonable, justified or acceptable.

153. I therefore considered this to be a matter in which an award of exemplary damages was appropriate. I assessed this sum at $10,000.

Summary

154. I have assessed the plaintiff’s damages as follows:

(1)	General damages	$100,000
(2)	Past out of pocket expenses	$2,500
(3)	Future out of pocket expenses	$28,009
(4)	Past domestic assistance	$40,824
(5)	Future domestic assistance	$20,594
(6)	Exemplary damages	$10,000

155. Total damages excluding costs and interest are therefore $201,927.

156. I order that the proceedings are adjourned to a date to be fixed to deal with the issues of costs and interest and to make final orders.

Further Orders

157. Verdict and judgment for the plaintiff in the sum of $210,927.

158. The defendant is to pay the plaintiff’s costs of the proceedings including those arising out of the notice of motion dated 6 November 2015 on an ordinary basis up to 13 April 2015 and thereafter on an indemnity costs basis.

159. The exhibits are to be retained for 28 days.

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Decision last updated: 14 December 2015