Murn v Beesley

[2017] SADC 46

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil: Minor Civil Review)

MURN v BEESLEY

[2017] SADC 46

Judgment of His Honour Judge Tilmouth

2 May 2017

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW

Error of law identified by assessing damages according to inapplicable Statute.

DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - GENERAL PRINCIPLES

A Magistrate assessed damages for an assault and battery according to the Civil Liability Act.

Held: The Civil Liability Act does not apply to the assessment of damages for loss suffered in the commission of intentional torts.  Damages at large reassessed.

Magistrates Court (Monetary Limits) Amendment Act 2016 (SA) s 4; Civil Liability Act 1936 (SA) s 51, 51(a)(B), 52; Civil Liability Act 2002 (NSW) s 3B; Magistrates Court Act 1991 (SA) s 38(5), 38(7), 38(7)(d)(ii); Fower v Lanning [1959] 1 QB 426; Plos v Morz [2015] SADC 87; (2015)295 LSJS 276; Uren v John Fairfax and Sons Pty Ltd (1966) 117 CLR 118, 149; State of New South Wales v Riley (2003) 57 NSWLR 496, referred to.
Stead v State Government Insurance Commission (1986) 161 CLR 141; Cross v Certain Lloyds Underwriters [2011] NSWCA 136; Thelander v Certain Lloyds Underwriters [2011] NSWCA 136; MacDougal v Mitchell [2015] NSWCA 389; Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64, 83, 125; Gray v Motor Accident Commission (1998) 196 CLR 1, applied.

MURN v BEESLEY
[2017] SADC 46

The Issue

1. This appeal from an award of limited damages must succeed, because damages were assessed according to a statutory formula which did not apply.

   Procedural History

2. Proceedings were commenced by Mr Murn in the Minor Civil Claims jurisdiction of the Adelaide Magistrates Court on 27 October 2014.  In further particulars of his claim filed on 7 April 2015, he sought damages from Mr Beesley for an intentional assault and battery, said to be committed in Mr Murn’s home at Parkholme on 18 October 2013.  The particulars record that Mr Beesley entered as an invitee but was later asked to leave because of misbehaviour. He refused to do so, and began damaging the internal premises before ‘intentionally’ assaulting and battering Mr Murn, causing ‘wounding, lacerations and contusions and pain and suffering’, as well as psychological distress.

3. Mr Murn further claimed aggravated and exemplary damages based on these particulars:

   Particulars of Aggravation and claim for aggravated Damages

   6.The plaintiff was known by the defendant to have acquired brain injury and to have been incapable of defending himself.

   7.The assaults and batteries occurred in the plaintiff’s own home after the defendant had been asked to leave.

   8.     The defendant has denied the events in the statement of claim.

   Particulars giving rise to claim for exemplary damages

   9.The plaintiff was known by the defendant to have acquired brain injury and to have been incapable of defending himself.

   10.The assaults and batteries occurred in the plaintiff’s own home after the defendant had been asked to leave.

   11.The defendant’s actions were intentional and humiliating to the plaintiff and in complete disregard for the plaintiff’s rights of bodily integrity.

4. In his defence, Mr Beesley denied the claim ‘in its entirety’. Default judgment was entered against him on 9 June 2015, owing to his non-appearance on that day.  The action was accordingly set down for an assessment of damages.  No application to set aside the default judgment was made at any later time.

   Proceedings in the Magistrates Court

5. The assessment came before a Magistrate on 27 January 2016. Her Honour allowed Mr Murn to read a statement to the court, later tendered as Exhibit P1.  Mr Beesley gave sworn evidence.  As will appear, Mr Murn had significant cognitive defects arising from brain damage sustained in a 2004 motor vehicle accident.  Mr Murn did not produce any medical evidence to support his case for damages for personal injury, despite the fact that he was warned on 9 June 2015 by her Honour that it was:[1]

   … essential that he adduced medical evidence from his treating practitioners concerning the physical injuries and psychological harm he had allegedly sustained.

   [1]    Murn v Beesley, ELCCI-13-14276, 27 January 2016, [20].

6. The following brief recitation of the facts is substantially based upon the findings of the fact made by her Honour, supplemented by the evidence given before her. Both parties had known each other for about 24 years.  They went to the same primary school.  They remained good friends afterwards and saw each other frequently, even though they attended different high schools.  Mr Beesley was aware that Mr Murn suffered significant brain injury following a ‘near fatal’ motor vehicle accident.  This accident resulted in a course of treatment over two years, including hospitalisation for nine months at the Hampstead Rehabilitation Centre.  Mr Beesley was in fact best man at Mr Murn’s wedding in 2006.

7. Mr Beesley was invited to the home of Mr Murn by text message on 18 October 2015 for a ‘night of drinking’.  A heated argument developed, so Mr Beesley was asked to leave, but he refused to do so.  Instead he proceeded to ‘trash’ the Unit by deliberately spilling drinks and destroying a laptop computer.  Mr Murn grew increasingly distressed at this.  Mr Murn stood up to retrieve the computer only to be pushed into a wall, hitting his head and shoulder, before falling to the floor.  Shortly afterwards, Mr Beesley pushed Mr Murn across a room, placing both hands on Mr Murn’s chest and ‘shoving’ him back.  He hit a wall very hard with his back, shoulders and head and slipped to the ground, scraping his back.  Photographs of the damaged plasterboard wall and resultant injuries including grazes on the lower back and shoulder blades, were tendered as Exhibit P3. By this time Mr Murn was ‘flailing on the floor, trying to get up’ as Mr Beesley was ‘grappling’ and laughing at him, whilst ‘straddling’ Mr Murn.  Mr Beesley subsequently left by taxi.  He called in the following morning to apologise, when he offered to repair the plasterboard wall.

8. Mr Murn spoke of sustaining serious bruising and abrasions as well as suffering psychologically, in that he felt unsafe for a significant period of time when left alone in his Unit.  He became hypervigilant and avoided contact with others, for a period of about 12 months.  He stated that he sought medical assistance two days afterwards by attending a Medical Clinic at Marion and that he had undergone psychological counselling at a clinic on South Terrace.

9. The evidence of Mr Beesley was effectively that Mr Murn was intoxicated and fell over as a result.  He accepted some ill-defined responsibility for what occurred by ‘upsetting’ him.  He was offered by the Magistrate  the opportunity to ask ‘any question of Mr Murn’ – as he was again in this court - which he declined on each occasion.

   The Assessment of Damages

10. Her Honour accepted the account of Mr Murn and rejected that of Mr Beesley. She made these findings with respect to the question of physical injuries after accepting Mr Beesley intentionally destroyed Mr Murn’s laptop computer:[2]

    Mr Murn and Mr Beesley began arguing and Mr Murn asked Mr Beesley to leave his unit. Mr Beesley refused, and then on two occasions he committed the tort of battery by throwing Mr Murn against the wall, as a consequence of which Mr Murn sustained bruising and abrasions. On both occasions the plasterboard wall was damaged. Mr Murn produced photographs of the bruises and abrasions he sustained as a consequence of the battery. He also produced photographs of the damaged plasterboard wall (Exhibit P3) and the invoice verifying the fact that he spent $300 having the wall repaired (Exhibit P2).

    [2]    Murn v Beesley ELCCI-13-14276, 27 January 2016, [17.4].

11. Her Honour proceeded to note that Mr Murn was seeking damages of $25,000 for non-economic loss, distress and anxiety as well as aggravated and exemplary damages. At relevant times the jurisdictional limit of the small claims court was $25,000. This has since reverted to $12,000 as of 1 August 2016: s 4, Magistrates Court (Monetary Limits) Amendment Act 2016.

12. Adopting a ‘broad approach’, her Honour considered that Mr Murn was entitled to recover damages of $500 for the cost and retrieval of lost data from the computer, $1000 for the computer itself and $300 with respect to the plasterboard repair.  Her Honour further allowed an issuing fee of $131, solicitor’s fees of $500 and the lump sum of $150 for attendances at directions hearings.  The total judgment including costs was therefore $2,581.  There was no award for general damages on account of pain and suffering or loss of amenities.

13. No mention was made during the progress of the claim through the Magistrates Court, of the potential application to the assessment of the Civil Liability Act 1936 (SA). It first arose in her Honour’s judgment, in the following manner:[3]

    [3]    Murn v Beesley ELCCI-13-14276, 27 January 2016, [19]-[23].

    [19] It is necessary to have regard to s 52 of the Civil Liability Act 1936 (SA) which provides as follows:

    52.     Damages for non-economic loss

    (1)     Damages may only be awarded for non-economic loss if:

    (a)the injured person’s ability to lead a normal life was significantly impaired by the injury for a period of 7 days; or

    (b)medical expenses of at least the prescribed minimum have been reasonably incurred in connection with the injury.

    [20]    I have already referred to the fact that Mr Murn bears the onus of proving his claim, on the balance of probabilities. He has failed to adduce any medical evidence in support of his claim for damages for non-economic loss, being the pain and suffering and physical and psychological injury sustained by him in the battery. At the hearing on 9 June 2015, I reminded him that it was essential that he adduced medical evidence from his treating practitioners concerning the physical injuries and psychological harm he had allegedly sustained.

    [21]    He told the Court he had endeavoured to obtain a report from his psychologist and had been informed the cost of the report would be $1,200. He could not afford to obtain this report. The only information tendered to the Court was the photographs of the bruising and abrasions he had suffered (Exhibit P3). This evidence clearly falls well short of the evidence required to discharge the onus of proof.

    [22]    Accordingly, as no medical evidence has been placed before the Court in support of his claim for damages for non-economic loss, Mr Murn has not established that his ability to lead a normal life was significantly impaired for a period of seven days. Similarly, no evidence of the medical expenses incurred by him was placed before the Court, and, as a consequence, it is not possible to determine whether ‘the prescribed minimum’ has been incurred. As at October 2013, the ‘prescribed minimum’ was $3,822.

    [23]    As a consequence of Mr Murn’s failure to adduce any medical evidence in support of his claim, his claim for damages for injuries sustained in the battery must be dismissed.

    The Appeal to the District Court

14. Mr Murn complains that he was denied procedural fairness as her Honour did not raise the question of the application of s 51 of the Civil Liability Act, earlier.  This oversight is probably of little consequence since had it been raised, it would only have emphasised the need for him to adduce the necessary medical evidence that her Honour had already advised him to obtain.  On the other hand, it might have served to reinforce the message and cause him to take steps to obtain that evidence which he had not taken previously.  He declined a similar opportunity to adduce such evidence in the course of this appeal.  As I explained in Plos v Mroz,[4] the small claims court is bound by the rules of procedural fairness.  This alone constituted a denial of natural justice sufficient to enable the appeal to succeed. As the High Court said in Stead v State Government Insurance Commission:[5]

    All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome.

    [4] (2015) 295 LSJS 276, [32].

    [5] (1986) 161 CLR 141, 147.

15. Be all that as it may, her Honour fell into error by applying s 52 of the Civil Liability Act, insofar as it concerned the assessment of damages for non-economic loss. This is so because of Part 8 of the Civil Liability Act; ‘Damages for personal injury’, does not apply to damages caused by the commission of intentional torts, such as assault and battery. This conclusion emerges from s 51 of the Civil Liability Act, which reads as follows:

    51—Application of this Part

    This Part applies—

    (a)     where damages are claimed for personal injury arising from—

    (i)     a motor accident (whether caused intentionally or unintentionally); or

    (ii)    an accident caused wholly or in part by—

    (A)    negligence; or

    (B)some other unintentional tort on the part of a person other than the injured person; or

    (C)     a breach of a contractual duty of care; or

    (b)     where personal injury arising in the manner described in paragraph (a) results in death and damages are claimed under Part 5 for harm resulting from the death.

16. Under the civil law, the elements of assault and battery require an intentional application of force without lawful excuse: Fowler v Lanning.[6] Unlike negligence where damage is the gist of the action, proof of damage is not an essential ingredient in an action for assault and battery, although that question does not directly arise here. The practical effect of s 52 of the Civil Liability Act is also to preclude awards for aggravated and exemplary damages, in cases to which it applies.

    [6] [1959] 1 QB 426.

17. The preclusion of damages for intentional torts from the ambit of the Civil Liability Act arises from the very terms of s 51(a)(B) of the Civil Liability Act: (T)his part applies … where damages are claimed for personal injury arising from … some other unintentional tort …’.[7]To adopt an expression used in a similar context, ‘the drafting … is awkward but clear’: Cross v Certain Lloyds Underwriters; Thelander v Certain Lloyds Underwriters.[8]

    [7]    Emphasis supplied.

    [8] [2011] NSWCA 136, [54], per Baster JHA.

18. This view is consistent with the approach taken to analogous legislation interstate.  For instance the Civil Liability Act 2002 (NSW) provides as follows:

    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)) ….

19. This provision was understood in Cross v Certain Lloyds Underwriters; Thelander v Certain Lloyds Underwriters,[9] to exclude damages in respect of intentional torts, and thus not to extend to a claim for damages for deliberately inflicted personal injuries.  A similar view was taken in MacDougal v Mitchell:[10]

    [15] Because the injuries sustained by the applicant were as a result of intentional acts of the respondents with intent to cause injury, s 3B(1)(a) of the Civil Liability Act 2002 (NSW) provided that the Act did not apply to or in respect of any award of damages in the present proceedings. Accordingly, damages were at large.

    [9] Ibid, [54], [71].

    [10] [2015] NSWCA 389, per Tobias AJA, Meagher JA and Bergin CJ in Eq. agreeing.

20. There is no substantial difference in their effect between the operative words in question in s 51(a)(B) of the Civil Liability Act ‘where damages are claimed for personal injury arising from… some other unintentional tort on the part of a person …’ and those in s 3B of the New South Wales statute, ‘awards of damages [for] … [the]….civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury…’. At the heart of both is the notion of an ‘intentional’ tort or intentional act causing damage. That being so, damages stand to be assessed at large according to common law principles. Section 52 of the Civil Liability Act had no application.   The analogous provisions are usefully collated and examined by Cockburn and Madden in ‘A Renewed Interest in Intentional Torts Following’. [11]

    [11]   (2006) 14 Tort L Rev 161.

21. Other examples of the same or similar statutory approaches can be found in ss 28C(2)(a) and 28LC(2)(a) The Wrongs Act 1958 (Vic); ss 4 and 5 Civil Liability Act 2003 (Qld); s 3B(1) Civil Liability Act 2002 (WA); s 93 Civil Law (Wrongs Act) 2002 (ACT); and s 4(1) Personal Injuries (Liabilities and Damages) Act 2003 (NT).

22. As there is now power of remission, this court must now proceed to ‘rescind the judgment and substitute a judgment that the court considers appropriate’: s 38(7)(d)(ii) Magistrates Court Act 1991 (SA)

    Reassessment of Damages

    General Damages

23. Despite the paucity of material, the court is required to do the best it can with such material as is available to it: Commonwealth v Amann Aviation Pty Ltd.[12]  The present situation is compounded by the fact that there is very little to delineate between long lasting effects attributable to the 2004 accident, and the present matter, so it is best to focus upon the short term sequela. The analysis begins with the primary findings of the Magistrate referred to earlier.

    [12] (1991) 174 CLR 64, 83, 125.

24. Mr Murn said that the following day his memory was ‘very fuzzy’ and that he was ‘somewhat disorientated and confused about what had happened’.[13]  As mentioned earlier, he said that for a long time after he felt unsafe, had grown reclusive and retained feelings of ‘anxiety and shame associated with this incident’.[14]  He described suffering serious bruising and scrapes as a result of the incident, which can be seen in photographs before the Court.  These show a number of abrasions to the side and rear of the body.  These are more than merely superficial.  It is not unreasonable to predict that they would have taken somewhere between one and two weeks to heal and would provide a measure of discomfort in the meantime.

    [13]   T8.18-19.

    [14]   T 10.36-38.

25. Two days later Mr Murn visited a medical clinic, where his injuries were documented. He was engaged in counselling with a psychologist, Dr Brain at the Brain Health Clinic on South Terrace. This occurred twice a week beginning in mid-2015, but that is as far as the evidence takes the matter.

26. Doing the best one can in the imperfect state of the evidence, an assessment of general damages of $1,500 is made to encompass pain, suffering and inconvenience both physical and emotional.  There is no evidence of long lasting, enduring or disabling personal injuries attributable to the incident in October 2013.

    Aggravated and Exemplary Damages

27. A distinction is drawn between aggravated and exemplary damages at common law.  Aggravated damages are awarded to compensate for harm done by a wrongful act aggravated by the manner in which it was done.  Exemplary damages are intended to punish the wrong-doer, in order to serve the objects of punishment, moral retribution and deterrence: Uren v John Fairfax and Sons Pty Ltd.[15]  Hence the focus of the former is on the plaintiff, whereas the focus is on the conduct of the defendant in the latter.  In those cases where the wrong-doer was subject to punishment imposed by the criminal law, an award of exemplary damages is not generally made, whereas with exemplary damages the fact that the wrong-doer was so punished remains a relevant factor: Gray v Motor Accident Commission.[16]  Mr Beesley concedes he was not charged in Criminal Courts for any offence arising out of the subject incident.

    [15] (1966) 117 CLR 118, 149.

    [16] (1998) 196 CLR 1.

1. Dealing first with aggravated damages, an award must proceed without double counting alongside of that allowed for compensatory damages: State of New South Wales v Riley.[17]  The breach of the friendship and the trust that went with it, clearly hurt Mr Murn’s feelings and caused him mental distress.  In addition the circumstances contained elements of humiliation.  An award of $400 is made under this head of damage.

   [17] (2003) 57 NSWLR 496, [83], [121].

2. Turning to exemplary damages, in this particular situation the actions and reactions of Mr Beesley were high handed, deliberate, unprovoked and protracted.  He abused Mr Murn’s hospitality and allowed the circumstances to get the better of him.  Because of their long association, he well knew Mr Murn suffered deficits resulting from the 2004 accident and that he was therefore vulnerable and relatively defenceless.  In those circumstances an award of $600 is made for exemplary damages. 

3. There is no proof before the court of any medical expenses incurred, so no question of special damages arises.

   Conclusion

4. In the result, there will be judgment in the above amounts for damages, additional to that awarded by the Magistrate of $1,500. Mr Murn further incurred the expense of issuing his appeal in this court of $154 and $89 for serving it. It is inappropriate to make any order for costs since both parties were unrepresented: s 38(5) Magistrates Court Act 1991 (SA).

   A Final Observation

5. In the written case submitted on behalf of Mr Beesley, his solicitor submitted that the Court should exercise a discretion under s 38(7) of the Magistrates Court Act, to review the liability of Mr Beesley, that is whether or not an assault and battery took place at all.  However the Court simply lacks the jurisdiction and the power to proceed in that way.  In the first place, the appropriate manner of reagitating the issue of liability was for Mr Beesley to apply to set aside the default judgment and seek leave of the Court to file or re-file a defence.  In the second place, as I pointed out in Plos v Mroz,[18] appeals of this kind come within the Court’s Administrative and Disciplinary jurisdiction, so it has no more power to exercise than the Magistrates Court itself had in the underlying proceedings.  The fact that the review jurisdiction is exercised by the District Court, confers no greater power and no form of accrued jurisdiction than held by the court from which the appeal was initiated in the first place.

   [18] [2015] SADC 87, [52]; (2015) 295 LSJS 276.

   Orders

6. For the above reasons, the following orders are made:

   1.The judgment given on 27 January 2016 is rescinded.

   2.The following judgment is substituted:

   (1)Mr Murn is awarded damages as follows:

   (i)     $1,500 general damages

   (ii)    $400 aggravated damages

   (iii)   $600 exemplary damages.

   (2)The awards amounting to $1,800 for the damaged computer in the court below are affirmed.

   (3)The award for costs of $781 in the court below is affirmed.

   (4)Mr Murn have the costs of issuing the appeal of $154 and the cost of serving the appeal of $89.

   3.Judgment in favour of Mr Murn against Mr Beesley of $5,235 is entered accordingly.

   4.There will be no order for costs of the appeal.