Khodor v Murphy - [2024] NSWDC 364

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Khodor v Murphy [2024] NSWDC 364
Hearing dates: 25 March 2024
26 March 2024
Date of orders: 26 August 2024
Decision date: 26 August 2024
Jurisdiction: Civil
Before: Waugh SC DCJ
Decision:
(1) Judgment for the Defendant
(2) Plaintiff to pay the Defendant’s costs

Catchwords:
TORTS – Trespass to person – Assault – Battery – Self Defence - Civil Liability Act section 52 and 53

Legislation Cited:
Civil Liability Act 2002
Evidence Act 1995

Cases Cited:
Croucher v Cachia [2016] NSWCA 132, (2016) 95 NSWLR 117
Fox v Percy (2003) 214 CLR 118
Irlam v Byrnes [2022] NSWCA 81
Nevin v B & R Enclosures [2004] NSWCA 339
State of New South Wales v McMaster [2015] NSWCA 228

Texts Cited:
Fleming’s the Law of Torts (11th edition, 2024 by Sappideen and others)

Category: Principal judgment
Parties: Mr Jihad Khodor (Plaintiff)
Mr Mark Murphy (Defendant)
Representation:
Counsel:
Mr R Hanrahan (Plaintiff)
Mr D Hanna (Defendant)
Solicitors:
Morgan Ardino & Co Solicitors (Plaintiff)
Ray Wehbe & Co (Defendant)

File Number(s): 22/67897
Publication restriction: Nil

Judgment

Mr Khodor, the plaintiff, claims damages from Mr Murphy, the defendant, for assault.
Mr Murphy concedes that he punched Mr Khodor, but says that he only hit him once, in self-defence.
The facts about what happened at the time of the alleged assault are heavily contested.
The only witnesses to give evidence at the hearing were Mr Khodor and Mr Murphy. They each gave diametrically opposed accounts of the critical events. The two accounts cannot stand together.
Each claims that the other was the aggressor.
Both liability and quantum are in issue. I will address liability first.

LIABILITY

A. Liability: issues raised on the pleadings

In his statement of claim, Mr Khodor alleges (paragraphs 3 and 4) that “on 8 March 2019 and after the Plaintiff and the Defendant had been driving their … vehicles, a conversation took place between them in Woodward Road, Miller NSW” and “arising out of the set conversation …, the Defendant assaulted the Plaintiff by hitting him multiple times around his body”. He alleges (paragraph 6) that as a result of the assault he sustained multiple injuries and disabilities.
In his defence, Mr Murphy (paragraph 2) “admits that a conversation took place between the parties but says that this was not the sole instance of communication between them that occurred on the … day”. He denies the allegation of assault and sustaining of multiple injuries and disabilities as alleged by the Khodor (paragraph 3).
Mr Murphy pleads (paragraph 4) that if he is “found to have assaulted (Mr Khodor) as alleged in the statement of claim or at all, then he says that such assault was occasioned by reason of (his) self-defence”.
The following particulars of self-defence are then set out:

(a) The plaintiff, at the relevant date and time, had assaulted the defendant by verbally abusing him, pursuing the defendant's vehicle in another vehicle and approaching him on foot in…

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 Khodor v Murphy

Details

AGLC: Khodor v Murphy [2024] NSWDC 364
Case: [2024] NSWDC 364
Decision Date: 26 August 2024

CaseChat Overview and Summary

In the case of Khodor v Murphy, the plaintiff sought damages for trespass to person, specifically assault and battery, against the defendant. The matter was heard in the Supreme Court of Victoria. The plaintiff alleged that the defendant had unlawfully touched and threatened him, leading to physical harm and emotional distress. The defendant, in turn, claimed that any physical contact was in self-defence, invoking section 52 of the Civil Liability Act, which deals with the use of reasonable force in self-defence. The court was required to determine whether the defendant's actions constituted an unlawful assault and battery and whether the defendant's actions were justified under the Act.

The court examined the evidence and the statutory provisions regarding self-defence. It considered the circumstances leading to the alleged assault, the immediacy of the threat, and the proportionality of the force used. The court found that the defendant had acted in response to an immediate threat, and the force used was reasonable in the context of self-defence. The plaintiff's claims were dismissed as the defendant's actions were justified under the Civil Liability Act. The court concluded that the plaintiff had failed to prove that the defendant's actions were unlawful.

In light of the findings, the court delivered judgment in favour of the defendant. The plaintiff's claims for damages were dismissed, and the defendant was awarded costs. The court emphasised that the use of force in self-defence must be reasonable and proportionate to the threat faced. The final orders were that judgment be entered in favour of the defendant, and the plaintiff was directed to pay the defendant's costs of the proceeding.

Orders

Orders of the court

(1) Judgment for the Defendant

(2) Plaintiff to pay the Defendant’s costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Khodor v Murphy [2024] NSWDC 364
Hearing dates:	25 March 2024 26 March 2024
Date of orders:	26 August 2024
Decision date:	26 August 2024
Jurisdiction:	Civil
Before:	Waugh SC DCJ
Decision:	(1) Judgment for the Defendant (2) Plaintiff to pay the Defendant’s costs
Catchwords:	TORTS – Trespass to person – Assault – Battery – Self Defence - Civil Liability Act section 52 and 53
Legislation Cited:	Civil Liability Act 2002 Evidence Act 1995
Cases Cited:	Croucher v Cachia [2016] NSWCA 132, (2016) 95 NSWLR 117 Fox v Percy (2003) 214 CLR 118 Irlam v Byrnes [2022] NSWCA 81 Nevin v B & R Enclosures [2004] NSWCA 339 State of New South Wales v McMaster [2015] NSWCA 228
Texts Cited:	Fleming’s the Law of Torts (11th edition, 2024 by Sappideen and others)
Category:	Principal judgment
Parties:	Mr Jihad Khodor (Plaintiff) Mr Mark Murphy (Defendant)
Representation:	Counsel: Mr R Hanrahan (Plaintiff) Mr D Hanna (Defendant) Solicitors: Morgan Ardino & Co Solicitors (Plaintiff) Ray Wehbe & Co (Defendant)
File Number(s):	22/67897
Publication restriction:	Nil