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 ChengRepresentation: Counsel:
Solicitors:
Plaintiff - Mr de Greenlaw
Defendant - Mr Hallion
Plaintiff - Bellissimo Lawyers
Defendant - Luminous Legal
File Number(s): 2014/184227 Publication restriction: None
Judgment
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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.
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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
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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.
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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…
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- AGLC
- Farjudi v Cheng [2015] NSWDC 297
- Case
- [2015] NSWDC 297
- Decision Date
CaseChat Overview and Summary
The court was required to determine several key legal issues. Firstly, whether the defendant's actions were an assault and if so, whether the plaintiff's response was proportionate in the circumstances. The court also needed to consider whether the issue of self-defence was estopped due to the defendant's guilty plea to charges arising from the incident. Additionally, the court had to assess the claims of right and duty in the context of self-defence and the proportionality of the plaintiff's response. The assessment of damages for psychological injury, including the award of aggravated and exemplary damages, was another critical issue. Lastly, the admissibility and use of photographs and CCTV footage in substantiating the claims and counterclaims was examined.
The court found that the defendant's actions did amount to an assault. However, it held that the plaintiff's response was not proportionate given the circumstances. The court acknowledged the issue estoppel principle but found that it did not preclude the plaintiff from arguing the proportionality of his response. The court awarded damages for psychological injury, considering the severity and impact of the incident, and also granted aggravated damages. However, it declined to award exemplary damages, finding that while the defendant's actions were serious, they did not exhibit a level of culpability warranting such a penalty. The use of photographs and CCTV footage was deemed relevant and admissible, aiding in the understanding of the events.
The court ordered the proceedings to be adjourned to address costs, interest, and to make final orders. The plaintiff was awarded $210,927 in damages. The defendant was directed to pay the plaintiff's costs, including those from a notice of motion dated 6 November 2015, on an ordinary basis up to 13 April 2015 and on an indemnity basis thereafter. The exhibits were to be retained for 28 days.
Orders
Orders of the court
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.
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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