Ray v Southon

[2022] NSWCA 267

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Ray v Southon [2022] NSWCA 267

Hearing dates:

7 November 2022

Date of orders:

16 December 2022

Decision date:

16 December 2022

Before:

Ward P at [1]
Griffiths AJA at [2]
Harrison J at [3]

Decision:

Appeal dismissed with costs

Catchwords:

TORTS – assault during domestic relationship – where appellant pushed respondent – where respondent fell and struck her head on a coffee table – where appellant claims to have acted in self-defence – whether trial judge erred in rejecting appellant’s evidence concerning his relationship with respondent as irrelevant to the issue of self-defence – whether trial judge erred in concluding that appellant did not act in self-defence – whether trial judge erred in finding appellant had “intent to cause injury” and that Civil Liability Act 2002 (NSW), s 3B(1) did not apply

DAMAGES – assessment – past and future domestic assistance – whether medical practitioner qualified by respondent lacked expertise to express opinions on her need for domestic assistance – whether trial judge erred by failing to give sufficient reasons for award of damages

Legislation Cited:

Civil Liability Act 2002 (NSW), s 3B

Evidence Act 1995 (NSW), ss 55, 135

Cases Cited:

Boral Bricks Pty Ltd v Cosmidis [2013] NSWCA 443

Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc (2020) 103 NSWLR 658; [2020] NSWCA 294

Elias v R [2006] NSWCCA 365

R v Anderson (2000) 111 A Crim R 19; [2000] VSCA 16

R v Castaneda [2015] NSWSC 964

R v Hutchison & Wilkinson [2018] NSWSC 1759

R v Toki (No 3) (2000) 116 A Crim R 536; [2000] NSWSC 999

Sampco Pty Ltd v Wurth [2015] NSWCA 117

Southon v Ray [2022] NSWDC 32

Top Hut Banoon Pastoral Co Pty Ltd t/a Trustee for the Wakefield Family Trust v Walker [2021] NSWCA 296

Category:

Principal judgment

Parties:

Christopher Ray (Appellant)
Sharon Southon (Respondent)

Representation:

Counsel:
M J Davis (Appellant)
R de Meyrick (Respondent)

Solicitors:
Fern Lawyers (Appellant)
CBD Law Pty Ltd (Respondent)

File Number(s):

2022/83330

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

[2022] NSWDC 32

Date of Decision:

24 February 2022

Before:

Abadee DCJ

File Number(s):

2020/189352

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant and the respondent lived in a de facto relationship for about 17 years until August 2017. At the date of the incident, the respondent was 52 and the appellant was 33. The respondent alleged that on the 17^th of that month she was assaulted by the appellant in their home at Kariong when he grabbed and shook her and pushed her, causing her to fall back and strike her head on a coffee table.

The appellant was interviewed at Mudgee Police Station the following morning. He said that on the morning in question he had packed his bags and was ready to leave for three nights. The respondent was unhappy about this. An argument ensued. When he went to leave the house, the respondent blocked him from doing so. He tried to move her out of the way so that he could get to the front door when she fell over and hit her head. Although the appellant admitted in his police interview that he pushed the respondent, he made no reference to having done so in order to defend himself.

The respondent suffered injuries for which she sued, commencing proceedings on 26 June 2020. Before his Honour Abadee DCJ, the appellant argued that he had acted in self-defence. On 24 February 2022, his Honour found in the respondent’s favour, and awarded her damages in the sum of $163,786.46. The appellant appeals that decision.

The principal issues before this Court were:

1. whether the learned trial judge erred in rejecting the appellant’s evidence concerning his relationship with the respondent, in circumstances where such evidence was said to be relevant to the issue of self-defence;

2. whether the learned trial judge erred in concluding that the appellant did not act in self-defence, whether at common law or within the meaning of the Civil Liability Act 2002 (NSW);

3. whether the learned trial judge erred in admitting the report of Dr T Sheehan dated 2 February 2021 into evidence in full, in circumstances where Dr Sheehan did not possess specialised knowledge in the assessment of the need for domestic assistance;

4. whether the learned trial judge erred in failing to give sufficient reasons for his findings concerning the respondent’s entitlement to an award of damages for past and future domestic assistance;

5. whether the learned trial judge erred in awarding damages to the respondent in respect of past and future domestic assistance; and

6. whether the learned trial judge erred in concluding that the appellant had the intention to injure the respondent at the time he pushed her and that, as a consequence, the Civil Liability Act did not apply.

Held by the Court, dismissing the appeal with costs:

Per Harrison J (Ward P and Griffiths AJA agreeing):

1. His Honour was entitled to conclude that the evidence he rejected about the appellant’s past experiences with the respondent was not relevant to the issue of self-defence. The paragraphs were clearly not relevant in the sense contemplated by s 55 of the Evidence Act. There was nothing in the rejected paragraphs which could rationally have affected, directly or indirectly, the assessment of the probability of whether the appellant believed in the circumstances as he perceived them to be at the time that it was necessary to do what he did to defend himself: at [20].

2. Dr Sheehan had specific relevant qualifications and experience related to rehabilitative medicine and occupational health. It is not impermissible for a medical specialist with the extensive qualifications attained by Dr Sheehan to convert his assessment of a patient’s functional losses into a calculation of the estimated time it might take a healthy replacement to carry out the identified tasks with the performance of which the patient has established an identified difficulty. Nor is it impermissible for the respondent in this case to demonstrate a need for domestic assistance relying upon Dr Sheehan’s opinion and the lay evidence that supported it: at [31].

Boral Bricks Pty Ltd v Cosmidis [2013] NSWCA 443 distinguished.

Sampco Pty Ltd v Wurth [2015] NSWCA 117 distinguished.

3. His Honour did not fail to give adequate or sufficient reasons for his conclusions. His Honour dealt in appropriate detail with the respondent’s claimed injuries and disabilities. It is clear that his Honour incorporated his findings about her physical limitations into his assessment of the need for assistance with identified tasks. His conclusions are reliably supported by the other references in his judgment to the respondent’s need for domestic assistance: at [32].

4. Paragraph [110] of his Honour’s judgment makes it clear that he considered the evidence established that the appellant formed the intention to injure the respondent when he pushed her. It is not possible, by reference either to the appellant’s submissions or to his Honour’s process of reasoning, to conclude that his Honour’s finding is wrong: at [43].

Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc (2020) 103 NSWLR 658; [2020] NSWCA 294 discussed with approval.

Judgment

1. WARD P: I have had the advantage of reading in draft Harrison J’s reasons, with which I agree.  I also agree with the order that his Honour proposes.

2. GRIFFITHS AJA: I agree with Harrison J.

3. HARRISON J: The appellant and the respondent lived in a de facto relationship for about 17 years until August 2017. The respondent alleged that on the 17^th of that month she was assaulted by the appellant in their home at Kariong when he grabbed and shook her and pushed her, causing her to fall back and strike her head on a coffee table. She suffered injuries for which she sued, commencing proceedings on 26 June 2020. On 24 February 2022, his Honour Abadee DCJ found in the respondent’s favour, and awarded her damages in the sum of $163,786.46: Southon v Ray [2022] NSWDC 32.

4. By his amended notice of appeal filed on 3 November 2022, the appellant appeals from the whole of his Honour’s decision upon the following grounds:

1. The learned trial judge erred in rejecting the appellant’s evidence concerning his relationship with the respondent, in circumstances where such evidence was relevant to the issue of self-defence.

2. The learned trial judge erred in concluding that the respondent [sic, appellant] did not act in self-defence, whether at common law or within the meaning of the Civil Liability Act 2002.

3. The learned trial judge erred in admitting the report of Dr T Sheehan dated 2 February 2021 into evidence in full, in circumstances where Dr Sheehan did not possess specialised knowledge in the assessment of the need for domestic assistance.

4. The learned trial judge erred in failing to give sufficient reasons for his findings concerning the respondent’s entitlement to an award of damages for past and future domestic assistance.

5. The learned trial judge erred in awarding damages to the respondent in respect of past and future domestic assistance.

6. The learned trial judge erred in concluding that the appellant had the intention to injure the respondent at the time he pushed her and that, as a consequence, the Civil Liability Act did not apply.

Background

5. According to the respondent, at about 6am on 17 August 2017, the appellant was in the loungeroom of the house and was moving towards the front door. She asked him if, in the future, he could tell her when he was going away as she noticed he had a suitcase and she could tell he was going away. He replied, saying that he did not have to tell her. The respondent told him that his attitude was not acceptable and the appellant started yelling at her. The respondent told the appellant that she did not deserve to be treated like that. He then told her that he wanted her “out of his fucking house”. The respondent said that it was her house too and that she had been to see a solicitor and had received legal advice.

6. The respondent formed the view that the appellant was angry as he gritted his teeth in front of her face, spat and foamed and kept slamming the door until the paint started to crack around it. It was at the point where she had mentioned being in contact with a solicitor that the appellant turned around, grabbed her with both arms on her shoulders and pushed her so hard that she fell backwards one and a half metres, hitting her head on a coffee table. She said that she was not unconscious but felt dazed although in other evidence the respondent said she had been unconscious for a short period. The appellant told her to “stop faking it” and “took off”. She lay on the floor for about two minutes. She realised she was injured and phoned the appellant, telling him she needed an ambulance. She rang for an ambulance herself, which arrived as the appellant returned.

7. The appellant was interviewed at the Mudgee Police Station the following morning. He described their relationship as “not good” and that it had been “forced” upon him for the better part of 17 years. He said that arguments between them had been “fairly regular”. The appellant said that on the morning in question he had packed his bags and was ready to leave for three nights. The respondent was unhappy about this. An argument ensued. She became abusive. The argument lasted for about 15 minutes but did not become physical until just before he left. When he went to leave the house, the respondent blocked him from doing so. He tried to move her out of the way so that he could get to the front door when she fell over and hit her head. The appellant said he thought the respondent had probably put her hands on him as he was trying to open the door and that she had tried to push him out of the way to stop him leaving. He tried to move her out of the way by pushing her whilst he was opening the door. The appellant said to the police, “I pushed her and I think she’s fallen over … and she’s bleeding from the back of her head.” Although the appellant admitted in his police interview that he pushed the respondent, he made no reference to having done so in order to defend himself.

8. At the date of the incident, the respondent was 52 and the appellant was 33. They met in 1998, when he was 14 and she was 33. At the time, the respondent became friends with the appellant’s parents and she often visited his parents socially. They commenced living together in 2000.

Grounds 1 and 2

9. Part of the appellant’s response to the respondent’s allegations was that in pushing her away he had acted in self-defence. That was so despite the fact that he did not suggest this to the police in his interview with them on 18 August 2017.

10. However, in his evidentiary statement made on 24 July 2021, the appellant referred to the situation in which his relationship with the respondent had been formed, including the manipulation and control exerted by her over him at an early stage and the degree of shame associated with the circumstances at that time. The appellant also referred to prior instances of violence perpetrated at the hands of the respondent and prior attempts by her to prevent him from leaving either the relationship or the home.

11. The paragraphs of his statement that were objected to by the respondent, and upon which the appellant wished to rely, are as follows:

“12. My parents put a lot of trust in Sharon, and they would often ask her to supervise me when they went away for weekends.

13. When my parents went away, Sharon would arrange parties where she would provide me with drugs and alcohol. She continued to try to force me to have a relationship with Tahlia.

14. At these parties, Sharon would encourage me to drink and use drugs. Sharon would often sit beside me and rub my leg in a sexual manner, making me feel uncomfortable. She would say to me words to the effect of: ‘I wish I could kiss you but you are only 14’ and ‘Tahlia doesn’t know what she is missing out on not being with a man like you’.

15. I was 14 years old, and I did not know what to do. I was embarrassed and felt uncomfortable telling anybody what was happening.

16. Sharon often booked weekends away at the cabins at Budgewoi Caravan Park and would invite me to stay and supply me with drugs and alcohol.

17. Sharon organised a long weekend away at Budgewoi Caravan Park commencing on 25 April 2000. During that weekend, Sharon asked me to stay back in the cabin to help her with something. I was heavily intoxicated at the time. Sharon forced herself on me and began to kiss me, and eventually she convinced me to have sexual intercourse with her, even though I said to her on numerous occasions that I didn’t want to. I was quite upset at the time as this was the first time that I had sexual intercourse. I was so upset that I cried, and I did not return to the rest of the group that night and went to bed.

18. The following morning, Sharon confronted me and said to me words to the effect of: ‘Why were you crying last night’. I said to her words to the effect ‘I am embarrassed and ashamed of what happened last night’.

19. I did not feel comfortable telling anybody about what had happened.

20. On 26 April 2000, Sharon entered my bedroom late at night and woke me up. She hopped into my bed and forced me to have sexual intercourse with her. I once again told her I didn’t want to. On this occasion, Sharon threatened me by saying words to the effect of: ‘If you don’t have sex with me, I will tell everybody what has happened’.

21. I continued to tell Sharon that I was embarrassed and ashamed of what was going on. She would say to me at this time ‘Why? I haven’t done anything wrong. I waited until you were 16’.

22. After that weekend, Sharon would call me on my mobile and house phone. She would say to me words to the effect of: ‘If you don’t continue to visit my house and attend my parties as normal, I will tell everyone what happened’.

23. In June 2000, Sharon’s husband confronted me about my relationship with Sharon. About that time, her relationship with her husband ended. Sharon said to me words to the effect of: ‘Because of you, I am not married anymore. I can’t afford my rent. You need to move in and help out, otherwise the kids and I are going to be homeless’. Sharon went on to say: ‘If you don’t move in, I will tell everyone about our relationship’.

24. I was 16 years old. At first, I refused and told her: ‘I want nothing more to do with you’, however Sharon said to me words to the effect of: ‘I am pregnant. I will have your child as proof to show everyone that there was a relationship between us’.

25. I eventually felt that to save my reputation and to save anyone from finding out what Sharon had done to me, that I should live with her until things calmed down, and I had the opportunity to leave.

…

28. Throughout the time that I lived with Sharon, she controlled me financially and took control of my bank account.

29. At the time, Sharon did not have any bank accounts in her name and would insist on using my accounts. Sharon said to me words to the effect of: ‘I cannot have an account in my name as I am bankrupt and all accounts that I do have are in the name of me and my husband’.

30. I was not happy living with Sharon. I said words to the effect of: ‘Sharon, I want to leave. I feel that I was forced into this because I was ashamed and embarrassed as I didn’t want anyone to find out’.

31. Sharon would laugh at me and call me a ‘coward’. I would cry and beg her to let me leave, but she would refuse.

32. As time went on, I became so upset that I would become angry and yell at Sharon. I can recall yelling at her things like: ‘Please Sharon. Just let me leave’ and ‘let me go free’.

33. Sharon would often overdose on drugs and end up in hospital and guilt me into staying in a relationship with her.

34. I felt helpless and depressed. I continued to attempt to leave the relationship, but I had nowhere to go. I had a strained relationship with my family because of my relationship with Sharon and I was completely controlled by her emotionally and financially. I also continued to be embarrassed that Sharon and I had sex, and I was scared about people finding out.

35. Sharon began contacting my work colleagues. She would say words to the effect of: ‘Is Chris still at work as I need to find him. Chris is hiding secrets which will come out if he doesn’t contact me soon’. This embarrassed me as it was the only place I went, where I felt that I had friends and a safe base.

36. It was around this time that Sharon started to become physically violent towards me. Sharon would threaten me with knives. She would also continue to threaten self-harm. Sharon would also hit and scratch me, if I threatened to leave home without her.

37. Sharon continued to control me until our relationship ended. She would destroy my clothing. On one occasion she scratched my face before I left the house for a social event. She hid and destroyed work related items and documents before important business meetings or visits from my management team. These actions were mostly done to stop me from leaving the house, as she was concerned that if I left the house, I would not come back.”

12. The appellant submitted below that these paragraphs were relevant to the background of domestic discord and to the issue of self-defence in that they informed consideration by the trial judge of what was operating on the appellant’s mind when the incident happened.

13. In the events that occurred, his Honour rejected paragraphs [12] to [25] and [28] to [35] on the grounds of relevance. His Honour found that, had he formed the view that the paragraphs were relevant, he would have rejected them pursuant to s 135 of the Evidence Act 1995. His Honour deferred ruling on paragraphs [36] and [37] and granted leave to the appellant to ask questions arising from those paragraphs on the voir dire. Evidence of prior instances of violence in 2012, 2015 and 2017 was adduced on the voir dire. The appellant renewed his objection and the respondent pressed for the admission of the evidence. His Honour ruled that paragraph [36] was admissible “to the extent to which reliance is placed upon an incident in April 2017”. He rejected evidence of instances of violence in 2012 and 2015 pursuant to s 135. He also rejected paragraph [37] on the basis that “no additional evidence was led on the voir dire to sustain the generalised assertions that were made”.

12. It was not in issue that in order to establish self-defence at common law in civil proceedings, the person asserting that an act was performed in self-defence must establish two things. First, that he or she believed in the circumstances as he or she perceived them to be at the time when performing the act in question that it was necessary to do what was done to defend himself or herself. Secondly, that the act that was performed was a reasonable response in the circumstances as he or she perceived them. In assessing the subjective components of the test, a court may take into account a person’s mental condition and whether a person’s past experiences may inform his or her belief about what conduct was necessary (R v Hutchison & Wilkinson [2018] NSWSC 1759) and what the person knew or believed about his or her alleged victim: Elias v R [2006] NSWCCA 365; R v Castaneda [2015] NSWSC 964. Relationship evidence may also be admitted as relevant to the state of mind of the person and whether or not he or she was acting in self-defence: R v Toki (No 3) (2000) 116 A Crim R 536; [2000] NSWSC 999; R v Anderson (2000) 111 A Crim R 19; [2000] VSCA 16.

13. The appellant submitted that the evidence his Honour rejected was probative of matters that could legitimately have assisted his assessment of the subjective elements of the defence, namely, whether the appellant believed that it was necessary to grab and push the respondent in order to defend himself. Rejection of the evidence limited his ability to rely upon matters that were relevant to his mental state, and which referred to his past experiences with the respondent and what he knew or believed about her.

14. In particular, the appellant submitted that the rejection of this evidence curtailed his ability to propound a case that the respondent was manipulative or exercised a degree of coercive control over him, that his actions and any incongruity in his behaviour were affected by the level of fear, shame and isolation that arose out of the circumstances in which their relationship originally formed, that he desired to leave the relationship and about the lengths to which the respondent would go to ensure he remained in it. Far from being an attempt to besmirch the respondent, those were matters that were relevant to the appellant’s state of mind at the time of the incident, his subjective belief as to whether his conduct was necessary, his perception of the surrounding circumstances and the unpredictability of the respondent’s behaviour.

15. His Honour dealt thoroughly with the issue of self-defence at [84] to [89] of his judgment as follows:

“84. Mr Ray supplied no particulars to his defence of self-defence in the defence that he filed. His case is that he pushed her because he was in fear of his physical safety, flowing from an attack on his person by Ms Southon. He did not contend that any fear arose from him simply being detained against his will in the home even if such fear could conceivably ground the defence.

85. It follows, virtually inevitably, for my preference for Ms Southon’s evidence, that I reject Mr Ray’s contention that he was in fear of his physical safety. At most, Ms Southon got into close spatial proximity to Mr Ray. It was he, not Ms Southon, who was angry, indeed, enraged, at her revelation that she had consulted lawyers and received an opinion about her interest in the family home. Ms Southon may have been persistent in making her point that she would like some indication of when and for how long Mr Ray would be away (then, or in the future), but she did not deserve to be yelled at, abused or disrespected, in response.

86. The highest that the evidence got for Mr Ray was a generalised reference (at paragraph 36) in his witness statement to earlier ‘attacks’ by Ms Southon which, when particularised by the part of the evidence of the voir dire which was admitted, amounted to no more than his evidence that in April 2017, she ‘ran’ towards him and reached into her bag and sprayed a product in his face. Mr Ray, self-consciously and gratuitously, added to that in cross-examination by throwing in (after this part of his evidence on the voir dire had been rejected) an unparticularised allegation about Ms Southon previously drawing knives upon him. I do not accept such evidence. Contrary to Mr Ray’s evidence, such conduct, if it occurred, could not conceivably have gone without report to the police or anyone else even if Mr Ray truly did believe that Ms Southon would take retaliatory action if he reported her to police. The notion that a stocky man with Mr Ray’s physique, set against Ms Southon’s physique, would be afraid or scared as to what she might do, without him taking any action to protect his interests (such as applying for Apprehended Violence Orders) bordered on the absurd. Even if it could be accepted that he may have been deterred from reporting, because of those incidents, or any other actual or perceived misdeeds by Ms Southon during a de facto relationship spanning 17 years, or the provenance of that relationship occurring whilst he was in his teens, I do not accept that Mr Ray was so emotionally under the ascendancy of Ms Southon as to be trapped in a relationship; or impeded in informing anyone (including work associates or other people without the knowledge of Ms Southon). Indeed, Mr Ray’s resort to such scandalous allegations in defence of this proceeding was itself discreditable.

87. To the extent that his mind was actuated by the history of what occurred in April 2017, there was a palpable difference (on Mr Ray’s account): on that occasion, he saw Ms Southon reaching into her bag and using a product as a weapon. Mr Ray gave no evidence of Ms Southon resorting to any implement to brandish as a weapon. Further, preferring, as I have, Ms Southon’s account of what occurred, all she did was (verbally) to stand her ground: to remonstrate in her entitlement to know where he was going, to be advised (in the future) about future trips and to correct Mr Ray when the latter asserted that it was his house. I am not persuaded that such ‘conduct’ by Ms Southon triggered an actual belief in Mr Ray that he needed to push her to protect himself.

88. Still less could it be said that there were any reasonable grounds for the belief. As was pointed out in argument, Mr Ray’s evidence, at its highest, in connection with self-defence, was entirely constituted by internalised beliefs: about what Ms Southon might do. He did not give an account of the content of conversation. He said nothing about that would indicate that a reasonable person, in his position and circumstances, may have apprehended imminent attack. I have rejected, in this regard, his evidence about Ms Southon ‘running’ towards him.

89. The defence of self-defence in common law fails.”

18. The terms of his Honour’s dismissal of the appellant’s self-defence arguments essentially anticipated his complaint in this appeal by concluding in effect that the evidence that the appellant now contends was wrongly rejected would not have made any difference. His Honour admitted paragraph [36] of the appellant’s statement which was the only reference anywhere to the respondent being physically violent towards the appellant at any time. That included on the morning of 17 August 2017 when the high point on the appellant’s account of what occurred on that occasion was at paragraphs [46] to [51] of his evidentiary statement as follows:

“46. …The argument started in my bedroom when she woke me up.

47. The rest of the argument took place whilst I was standing in the living room and Sharon was standing in the study room. I was getting ready to leave for work.

48. As I opened the front door ready to leave for work, I heard Sharon running towards me. Her footsteps were loud and fast, and I could hear she was running towards me. I was concerned that she was going to attack me, and I feared for my safety.

49. I tried to get out of the house and shut the front door before she could reach me, but I wasn’t able to get out in time.

50. I lifted up my right arm in an attempt to stop her from touching me. With the palm of my right hand, I pushed her right shoulder.

51. As I pushed her away from me, I turned to face the door as I was trying to leave. I did not see her fall.”

19. His Honour rejected the appellant’s evidence that he was concerned that the respondent was about to attack him and that he feared for his safety. That finding is not challenged save to the extent that the appellant contends that it was made without the benefit of the evidence he rejected. However, I am unable to accept that the legitimacy of that finding was in any way imperilled by his rejection of the evidence that is the subject of these grounds of appeal. His Honour did not accept the suggestion that the appellant had been threatened by the respondent with knives or that he “was so emotionally under the ascendancy of [the respondent] as to be trapped in a relationship”. His Honour’s finding that the “notion that a stocky man with [the appellant’s] physique, set against [the respondent’s] physique, would be afraid or scared as to what she might do, without him taking any action to protect his interests … bordered on the absurd” is a conclusion that in clear terms took account of the very subject matter of the evidence the appellant says his Honour should have admitted. In any event and significantly, his Honour rejected the suggestion that the respondent’s conduct had triggered an actual belief in the appellant that he needed to push her to protect himself.

20. His Honour was entitled to conclude that the evidence he rejected about the appellant’s past experiences with the respondent did not relevantly assist his asserted belief about what conduct might have been necessary on the morning of 17 August 2017. Nothing that the appellant said concerning what he knew or believed about the respondent, or about their longstanding relationship, could rise higher than the appellant’s evidence that he was concerned that the respondent was going to attack him and that he feared for his safety, evidence his Honour comprehensively rejected. The paragraphs were clearly not relevant in the sense contemplated by s 55 of the Evidence Act. There was nothing in the rejected paragraphs which could rationally have affected, directly or indirectly, the assessment of the probability of whether the appellant believed in the circumstances as he perceived them to be at the time that it was necessary to do what he did to defend himself. I accept the respondent’s submission that his Honour’s ruling that the evidence was irrelevant was inevitable. The rejected paragraphs do not directly or indirectly concern the question of whether the appellant acted in self-defence in August 2017. The relationship material is of no assistance to him. Having regard to his Honour’s factual findings about what happened on the morning in question, and his Honour’s preference for the respondent’s evidence, neither of which is challenged in this appeal, it is clear that even if the rejected material had been admitted, it was not capable of reasonably or rationally supporting a finding of self-defence.

21. Grounds 1 and 2 should be dismissed.

Grounds 3, 4 and 5

22. The respondent claimed damages for past and future domestic assistance at the rate of two hours per week on a commercial basis up to the date of the hearing and two hours per week of commercial assistance thereafter. She qualified Dr Thomas Sheehan, a Medico-Legal Consultant and Occupational Health, Safety and Rehabilitation Consultant. His report is dated 2 February 2021. Dr Sheehan proffered an opinion on the question of domestic assistance in the following terms:

“The assistance which has been provided for Ms Southon in the past by family and friends is considered to have been appropriate and consistent with the impact of her injuries upon physical wellbeing.

Further it seems clear that the past domestic assistance which has been provided has been for at least six hours per week and for a period of well over six months.

From now on, the subject will need to be provided with six hours of domestic assistance each week to meet her personal needs and that help will need to continue to be allocated to her for the rest of her life.

Further, should she move out of her present accommodation and into a house, she will immediately require the assistance of a handyman/gardener for four hours every six weeks throughout the foreseeable future.”

23. The respondent did not qualify an occupational therapist or equivalent healthcare professional to provide any comparable opinion.

24. Dr Sheehan’s report was objected to by the appellant, to the extent that it purported to express opinions on the need for domestic assistance, because the doctor lacked expertise to do so. It was later argued that the report should be afforded little weight on that topic. His Honour ultimately awarded the respondent damages for domestic assistance, discounted by reference to factors that are not presently relevant.

25. The appellant contended that the approach adopted by Basten JA in Boral Bricks Pty Ltd v Cosmidis [2013] NSWCA 443 at [93] supported the adoption of a similar outcome in the present case:

“[93] In support of the threshold of six hours per week, counsel for the plaintiff drew the Court's attention to the report of Dr Matthew Giblin, an orthopaedic surgeon, dated 18 July 2011 who stated (at p 4), ‘domestic assistance is recommended four hours a fortnight for gardening and four hours a week for home care’. This submission did not fit well with the plaintiff's other submissions in relation to the inadmissibility of Dr Johnston's evidence. On what basis the orthopaedic surgeon assessed the number of hours per week required to undertake domestic duties and gardening was not revealed. It is not the kind of ‘expertise’ which is normally attributed to orthopaedic surgeons. The evidence was clearly inadmissible, although not objected to, and should be given no weight at all. Why the Court was taken to it is obscure.”

26. His Honour made similar observations in Sampco Pty Ltd v Wurth [2015] NSWCA 117 at [83]:

“[83] The judge was entitled to put little, if any, weight upon hourly calculations provided by medical practitioners. No medical practitioner was qualified as expert in assessing the number of hours required for gardening, home maintenance or any other activity which might go into the purported assessment. It is difficult to imagine that the practitioners called in the present case could have been so qualified. No objection was taken to the evidence which was, on its face, inadmissible: however, the mere fact that it was admitted without objection did not require the trial judge to give it any weight at all. The real value of medical evidence in this area is in an assessment of the true extent of any physical or mental disability suffered by the plaintiff. That is because the key question is not what assistance the plaintiff has been provided by others, but the ‘reasonable need for the services to be provided’.”

27. The appellant also referred to Top Hut Banoon Pastoral Co Pty Ltd t/a Trustee for the Wakefield Family Trust v Walker [2021] NSWCA 296 at [72] to like effect.

28. The appellant submitted that his Honour fell into error in admitting the portions of Dr Sheehan’s report that dealt with past and future domestic assistance in circumstances where he lacked expertise in assessing the number of hours required to undertake domestic duties and the fact that such expertise is generally not within the province of medical doctors. He submitted further that the report was of little value in terms of establishing a reasonable need for domestic assistance because it lacked facts or reasoning relating to the respondent’s functional impairments or functional tolerances and whether or to what extent a need arises by reason of her injuries. He submitted that a precise consideration of the tasks with which the respondent required assistance should have been provided, without which little weight can be given to the report.

29. His Honour dealt with the claims for past and future domestic assistance at [218] to [223] of his judgment as follows:

“Past domestic assistance

[218] Ms Southon referred to her sister’s relatively recent assistance with domestic care since she moved to the Gold Coast, for 2 hours, once a week. Ms Southon gave unchallenged evidence about her inability to pay a commercial cleaner and that she did not (even if she could) rely upon her sister aiding her for the rest of her life.

[219] Ms Southon claims (under both the common law or under the Act) an allowance under this head of $75,042 on the basis of 2 hours a week at $45 per hour, yielding a sum of $21,060.00. As with other allowances for past heads of loss, it is appropriate to discount such award for the possibility that other matters may have triggered her predisposition to the physical injuries and that the fall in 2020 exacerbated her physical conditions.

[220] I would allow the sum of $14,750.

Future domestic assistance

[221] Ms Southon claims (under both the common law or under the Act) an allowance under this head of $75,042 on the basis of 2 hours a week at $45 per hour, with the multiplier for 31 years.

[222] I agree, however, with Mr Ray’s counsel that significant discounts on this award should be made to reflect a higher than usual level of contingencies affecting Ms Southon, in terms of her pre-existing conditions and post-incident injuries.

[223] I propose to allow $45,025.20.”

30. The respondent submitted that it was clear from his Honour’s assessment that he relied upon her evidence to quantify her need. It is also clear that his Honour did not adopt Dr Sheehan’s recommendations or opinion as to the number of hours of domestic assistance she required. The ultimate calculation was instead based upon the need identified in the lay evidence and by a process of averaging.

31. Dr Sheehan had specific relevant qualifications and experience related to rehabilitative medicine and occupational health. Those qualifications arguably set him apart from the practitioners discussed by Basten JA in the cited cases. It does not seem to me to be impermissible for a medical specialist with the extensive qualifications attained by Dr Sheehan to convert his assessment of a patient’s functional losses into a calculation of the estimated time it might take a healthy replacement to carry out the identified tasks with the performance of which the patient has established an identified difficulty. This is particularly so considering that when Dr Sheehan’s estimate is broken down, and before application of the discounts his Honour selected, it equated to one hour daily for six days of the week for domestic assistance for personal needs and less than one hour per week for handyman/gardener assistance. It does not seem to me to have been impermissible for the respondent in this case to demonstrate a need for domestic assistance relying upon Dr Sheehan’s opinion and the lay evidence that supported it. Cases like Boral Bricks and Sampco caution against relying upon unqualified medical opinions about the number of hours of assistance a plaintiff claims are required. Dr Sheehan was well placed to offer his opinions.

32. Nor did his Honour fail to give adequate or sufficient reasons for his conclusions (noting that counsel for the appellant candidly and correctly acknowledged that this was not his strongest ground). On the contrary, it is difficult to know precisely or even generally what more his Honour could or should have said. His Honour dealt in appropriate detail with the respondent’s claimed injuries and disabilities. The respondent devoted a number of paragraphs of her statement of evidence to her asserted need for domestic assistance and the difficulties she was experiencing. She was not cross-examined extensively about these matters. It is clear that his Honour incorporated his findings about her physical limitations into his assessment of the need for assistance with identified tasks. His conclusions are reliably supported by the other references in his judgment to the respondent’s need for domestic assistance.

30. I would dismiss these grounds.

Ground 6

34. Section 3B of the Civil Liability Act provides relevantly 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 … --the whole Act …

35. His Honour clearly and accurately identified the issues and the parties’ contentions about whether or not the Act regulated the respondent’s claim for damages at [98] to [100] as follows:

“[98] The defendant argues that for s 3B(1)(a) to be engaged, the plaintiff bears the onus of proving the two separate limbs: namely that the defendant not only did an intentional act, but also intended to cause injury or death. The latter limb requires proof of an actual subjective intention on the defendant’s part: Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc (2020) 103 NSWLR 658 (‘Dickson’). The defendant’s imputed or presumed intention, recklessness or negligence is insufficient.

[99] If both limbs of s 3B(1)(a) were satisfied, the plaintiff’s damages would be at large, but if it was found that the defendant’s mental state, in relation to the plaintiff’s prospect of harm, recklessly or negligently, her damages would be governed by Part 2 of the Act.

[100] Counsel for the plaintiff accepted these submissions. The plaintiff contends that by reason of s 3B(1)(a) of the Act, the provisions do not apply so that her claim for damages, and other liability issues, is to be adjudicated by the common law. She argues that Mr Ray intended to cause some injury to her. It did not matter that he may (on his account) have only intended to push her out of the way. It did not matter whether he knew, or foresaw the way in which she might be injured.”

36. His Honour dealt with this issue in the following paragraphs:

“[101] I accept the defendant’s submissions at the level of legal principle. The onus falls upon Ms Southon to establish that both limbs of s 3B(1) apply. I have no doubt, and Counsel for Mr Ray conceded, that Mr Ray’s conduct in grabbing Ms Southon and then pushing her backwards satisfied the first limb, of intentional conduct.

[102] The harder question is whether he pushed her with the intention of injuring her. To exclude the operation of the Act, Ms Southon needed to establish that Mr Ray had this intention when Mr Ray pushed her. That is a question of fact, but is nevertheless to be determined having regard to the seriousness of the allegation. In Dickson, the Court of Appeal endorsed the view that an allegation of an intent to injure, for the purposes of s 3B, engaged s 140(2) of the Evidence Act: at [128].

[103] It is pertinent to note that to the extent that Mr Ray gave evidence of his mental state, it was confined to trying to establish why he acted as he did – that it was necessary to push Ms Southon in self-defence. His argument was that it was necessary to push her. That is but another way of saying that he intended to push her. But it does not, by itself, amount to an admission that he intended to injure her.

[104] In her DVEC, Ms Southon stated, very charitably in the circumstances, that she did not think that Mr Ray “meant for this to happen … (or) realised this time that he pushed me that hard.” This evidence involved speculation as to another person’s state of mind and in the circumstances I place very limited weight on it.

[105] Towards the end of his cross-examination, Mr Ray said that in the act of pushing Ms Southon, he was not pushing her in any particular direction (i.e. towards the coffee table). He said it was not a planned push.

[106] In Dickson, Simpson AJA, who delivered the leading judgment, indicated that there is a strictness in approach to the construction of s 3B(1) as a matter of policy ([187]-[190]). It was not enough to make out the second limb that it may be presumed that injury might be the inevitable consequence of the intentional act (at [181]). Nothing less than actual subjective intention was necessary ([181]-[186], see also Basten JA at [4]-[9] and White JA at [19]). Amongst other things, her Honour referred (at [183]) to High Court authority positing that whilst foresight, likelihood and probability of harm is not enough, there can be cases where the defendant’s knowledge of the certainty that injury would occur may ground a compelling inference of an intent to cause injury.

[107] As Simpson AJA observed (at [181]), such intention can be proven by inference from all the circumstances and, given the potential forensic stakes, the circumstances as a whole may reflect on the issue more powerfully than self-serving statements of intent by a defendant after the event.

[108] There are difficulties in the application of s 3B: a curiosity of the provision is that in circumstances where the same conduct may constitute a tort (an intentional battery) and a crime (such as assault occasioning actual bodily harm), it is unnecessary, for proof of the crime to establish the intention to cause the actual bodily harm, whereas the additional mental element is required to oust the application of the Act in a civil claim for damages for personal injury. There may be cases, such as a person stamping on another, ‘beating up’ a victim repeatedly and even potentially a single punch to a person’s head (from in front or, perhaps more obviously from behind), where the inference of an intent to injure may readily be inferred by the conduct itself; which may be of such nature as to preclude acceptance of any explanation other than the intention of inflicting injury.

[109] There are, as counsel for the plaintiff argued, other cases on the borderline, where other inferences are potentially at play. In other circumstances, where a person pushes another person, multiple alternative inferences may arise; such as a desire to remove the person from out of the person’s way or ‘space’; or even a shortish push such as to convey displeasure but without anything more. It is possible to conceive of other pushes that may lack any sense of offensiveness at all.

[110] The question must be resolved by considering the defendant’s mental state, at the time of perpetrating the (intentional) act, in context. That context here is an apparently tempestuous relationship where the defendant had been known to vent his dissatisfaction in other ways, such as throwing, and damaging, chattels or punching the walls or banging the door to forestall further conflict. I infer he was an angry and frustrated man. Moreover, he, who had the title to the home in his name and was the principal breadwinner, felt powerful and in control. On this occasion however, he was challenged by the plaintiff. He was particularly enraged by the plaintiff’s indication that she had the gumption to obtain independent advice about her entitlements. The push was preceded by an aggressive grab of both her shoulders and a point in time when he gritted his teeth and was foaming at the mouth. In my judgment, in that moment of rage, no matter how fleeting it was, he completely lost his self-control. He intended to injure her or, what amounts to the same thing, cause harm to her. It did not matter how that harm was likely to be occasioned: it did not matter that he did not appreciate that he was pushing her back in the direction of the coffee table or was not conscious of its location nearby. It did not matter that he did not foresee the extent of the injury his conduct so caused, such as the plaintiff falling back and her head impacting on the coffee table. Further, in answer to the defendant’s argument, it did not need to be ‘planned’ for injury to be intended.

[111] The assessment of Ms Southon’s claim for damages is not restricted by the Act.” [Emphasis added]

37. The respondent perceives that the appellant does not challenge his Honour’s finding at [110] that the appellant pushed her with the intention of causing injury: the respondent’s written submissions include in terms the suggestion that “the appellant does not seek to challenge or disturb a positive finding by the primary judge that there was an actual, subjective intention to injure”. However, having regard to the wording of ground 6, which alleges that his Honour erred in concluding that the appellant had the intention to injure the respondent at the time he pushed her, that perception cannot be correct.

38. The appellant provided detailed submissions in support of this ground of appeal that included a review of the authorities dealing with the nature of the intention to cause injury, and the issue of whether the requisite intention was one to cause the precise injury sustained or whether an intention merely to cause injury of the type ultimately sustained would suffice.

39. Following that review, the appellant submitted as follows:

“Application

51. The appellant submits that the statement of Basten JA in Dickson (at [10] and [15]) to the effect that s 3B(1)(a) of the CL Act is intended to refer, if not to the injury which is the subject of the claim, at least to an injury of that character, is the preferable construction of s 3B(1)(a). Such a construction would be in keeping with the decision of Hulme J in McCracken v Melbourne Storm Rugby League Football Club [2005] NSWSC 107, [41] that s 3B(1) is not confined to conduct that is criminal.

52. A construction in accordance with the statement of Basten JA is also in conformity with the authorities concerning specific intent. That is, the strict nature of the test requires that actual, subjective, formulated intent to produce a particular result. Basten JA did not confine the scope of ‘injury’ to the particular injury caused, rather his Honour found that an intent to cause an injury of a similar character will suffice. That proposition does not detract from the doubt expressed by Cavanagh J in Irlam that the section requires proof of intent to cause the precise injuries suffered by a plaintiff.

53. Similarly, an interpretation that is consistent with Basten JA’s statement in Dickson would serve to address the concern identified by Simpson AJA in Dickson, to the effect that torts committed during contact sports would always be excluded from the operation of the CL Act, despite the fact that s 5L of the CL Act includes contact sports in such a way as to exclude liability in negligence where injury results from the materialisation of an obvious risk associated with the activity (at [190]).

54. The proposition is crystallised in Will v Brighton, where the Court drew a distinction between an actual subjective intention to [cause injury], as opposed to an intention to do acts which have the consequences of [causing injury], whether subjectively intended or not. Hannam provides a practical example where a distinction was made between the injury associated with being struck by taser prongs, that is during the battery, and the injuries sustained subsequent to the battery by falling and impacting with a floor below.”

40. In an apparent reliance upon that analysis, the appellant’s submissions proceeded thereafter to make the following case:

“55. If the interpretation contended for by the appellant is correct, it follows that the learned Trial Judge’s reasons in paragraph [110] are erroneous. The lack of appreciation that the appellant pushed the respondent in the direction of the coffee table or was not conscious of its location nearby; the lack of foresight as to the extent of the injury caused by the appellant’s conduct, such as the respondent falling back and her head impacting [with] the coffee table; and, the ‘unplanned’ nature of the push (where the authorities call for a design, purpose or directing of the mind) are all matters that would militate in favour of a finding that falls short of an actual subjective intention to cause the injuries sustained by the respondent, or injuries of a similar character.

56. In the instant case, it is submitted that the appellant intentionally did an act, which had the consequence of causing injury to the respondent. At the time of doing the act, he did not have the actual, formulated, specific intent to cause the respondent injury. It is open to this Court to interfere with his Honour’s findings as regards specific intent as such findings are contrary to compelling inference (Fox v Percy (2003) 214 CLR 118; Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679).

57. Such inferences might be drawn from the fact that the apparent cause of the respondent’s injuries was the impact with the coffee table, as opposed to the push; immediately after the push and the respondent’s fall to the ground, the appellant made a contemporaneous statement to the effect that he thought the respondent was ‘faking’ her injuries; upon realising that the respondent was in fact injured, he returned home to assist; on the same day as the incident, the respondent made statements during the course of a DVEC to the effect that the push ‘wasn’t that forcefully, he just like grabbed me and pushed me’, ‘I honestly don’t think he meant for it to happen, like I know you know the one punch things you should think anything can have happened when you do it. But I don’t think he realised this time that he pushed me that hard. Like normally, I can regain my footing, but he knocked me off my feet’ and, the statements made by the appellant in the course of his ERISP taken the day after the incident where he explains his understanding that the respondent fell after being pushed or tripped over a rug that was on the floor. Each of those matters weigh against a finding that the appellant had the requisite intent to cause injury to the respondent.”

41. It is timely to note what Basten JA said in Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc (2020) 103 NSWLR 658; [2020] NSWCA 294 at [10] and [15] to which the appellant refers:

“Nature of the injury

[10] The second element of the statutory phrase concerns the meaning of ‘injury’. The word appears in s 3B(1)(a) as an abstract concept, but it is clearly intended to refer, if not to the injury (or death) which is the subject matter of the claim, at least to an injury of that character. (It might not matter that the defendant intended to strike or shoot A and cause injury to A, but hit and injured B: such a case would likely engage s 3B(1)(a) although there was no intent to injure B.) The section refers to the injury which has resulted in compensable loss.

…

[15] It is not possible to read s 3B(1)(a) as engaged where the intent is to cause an injury which is not the subject of the claim. The injury which was the subject of the present claim resulted from the fact that the tackler fell onto the appellant’s head. There was no evidence that he subjectively held an intention to do that, or to cause the injuries which resulted from that act.”

42. Paragraph [56] of the appellant’s submissions includes the contention that he intentionally did an act, which had the consequence of causing injury to the respondent but that at the time of doing the act, he did not have the actual, formulated, specific intent to cause the respondent injury. Framed in that way, the appellant appears to be submitting that while injury may have been the result of his act in pushing the respondent, he did not have the intention to cause that injury or indeed any injury at all. That submission is a direct challenge to his Honour’s finding that the appellant intended to injure the respondent or, what amounts to the same thing, to cause her harm, and that it did not matter how that harm was likely to be occasioned. However, apart from submitting that his Honour’s finding should be rejected, the appellant offers no basis for why that should occur, apart from the generic contention that it “is open to this Court to interfere with his Honour’s findings as regards specific intent as such findings are contrary to compelling inference”.

43. Paragraph [110] of his Honour’s judgment makes it clear that he considered the evidence established that the appellant formed the intention to injure the respondent when he pushed her. I am unable, by reference either to the appellant’s submissions or to his Honour’s process of reasoning, to conclude that his Honour’s finding is wrong.

44. Ground 6 should be dismissed.

Conclusion

45. It follows in my view that the orders of the Court should be that the appeal is dismissed with costs.

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Decision last updated: 16 December 2022