Southon v Ray

[2022] NSWDC 32

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Southon v Ray [2022] NSWDC 32

Hearing dates:

15 February – 16 February 2022

Date of orders:

24 February 2022

Decision date:

24 February 2022

Jurisdiction:

Civil

Before:

Abadee DCJ

Decision:

See paragraph 232

Catchwords:

TORTS - assault and battery during domestic relationship - defendant pushed plaintiff in a longue room - plaintiff fell and suffered injury after her head hit a nearby coffee table - whether defence of self-defence established in common law and/or under provisions of Part 7 of the Civil Liability Act 2002 (NSW)

DAMAGES - whether assessment governed by common law or by Part 2 of the Civil Liability Act 2002 - whether operation of Civil Liability Act excluded by s 3B(1) - significance of pre-existing physical injuries and mental health issues – whether aggravated damages should be awarded

WORDS & PHRASES - whether defendant had "intent to cause injury" - Civil Liability Act 2002 s 3B(1)

Legislation Cited:

Civil Liability Act 2002 (NSW) ss 3A, 3B, 52, 53, 54

Evidence Act1995 (NSW) s 140

Cases Cited:

Croucher v Cachia (2016) NSWLR 117

Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc (2020) 103 NSWLR 658

Fontin v Katapodis (1962) 108 CLR 177

Giller v Procopets (2008) 24 VR 1 Cooper v Mulcahy [2013] NSWCA 160

James v James (No.3) [2020] NSWDC 797

Joldzic v Patrick [2021] NSWDC 55

State of NSW v McMaster (2015) 91 NSWLR 666

Tabet v Gett (2010) 240 CLR 537

Texts Cited:

D Villa, Annotated Civil Liability Act (3rd ed, 2018, Thomson Reuters)

Category:

Principal judgment

Parties:

Sharon Linda Southon (Plaintiff)
Christopher John Ray (Defendant)

Representation:

Counsel:
Mr Rohan de Meyrick for the plaintiff
Mr Matthew Davis for the defendant

Solicitors:
CBD Law Solicitors & Attorneys for the plaintiff
Fern Lawyers for the defendant

File Number(s):

2020/189352

Publication restriction:

Nil

Judgment

BACKGROUND

1. The plaintiff, Ms Southon, and the defendant, Mr Ray, were former partners in a de facto relationship. The relationship lasted for about 17 years. It ended because of events which occurred on 17 August 2017. As at that day, Ms Southon and Mr Ray were living together at a place in Kariong in New South Wales.

2. That day they had an argument. Ms Southon alleges, and Mr Ray denies, that the argument escalated into a battery, by which an angry Mr Ray grabbed her, shook her and pushed her, causing her to fall back and strike her head on a coffee table.

3. On 26 June 2020 she commenced this suit, seeking damages against Mr Ray for personal injury. In the alternative to his primary defence, which was fundamentally to put Ms Southon to proof of her allegations, Mr Ray alleges that if he did push her in the manner Ms Southon alleges he did, he did so in self-defence, which is a defence for the actions of assault, battery and trespass to the person; and also provocation. He specifically relies upon ss 52 – 54 of the Civil Liability Act 2002 (NSW) (the ‘Act’), which, his Counsel later contended, applies independently of and in some material respects, differs from the defence of self-defence in common law.

4. Ms Southon also relies, in the alternative, upon an action in negligence. The gist of this action, as pleaded, is that the pushing and shoving exposed her to the foreseeable risk that she would lose her balance and injure herself.

5. Ms Southon alleges, and Mr Ray disputes, that she sustained physical injuries to the left and lower sides of her neck, right hand and arm, a laceration to the back of her head, loss of consciousness, bruising and abrasions and shock. Many disabilities associated with these injuries are particularised.

6. Her claim for damages comprises, as heads of loss, general damages, aggravated damages, past and future economic loss, past and future medical expenses and past and future domestic assistance. Her schedule of damages reflects her primary position that, on her actions for assault and battery, the limiting provisions for damages under Part 2 of the Act are excluded, so an assessment is to be carried out under common law principles. If the action is run in negligence, the provisions of that Act apply. However, ultimately, it became common ground that a critical question was whether, on the admitted premise that Mr Ray deliberately pushed Ms Southon, he intended to injure her. If it was found that he did, the common law would apply (although the statutory defence of self-defence would still potentially run) for the assessment of damages. If he did not, the provisions of Part 2 of the Act would apply.

7. The issues submitted by the parties for the Court’s adjudication are:

1. What happened on 17 August 2017 (and specifically, how did Ms Southon fall?);

2. Whether Mr Ray acted in self-defence (in common law, or under the Act)

3. Whether the provisions of the Act apply to regulate questions of liability and the claim for damages;

4. Whether the plaintiff’s alleged injuries were caused by the defendant’s conduct, her own conduct or from conditions that pre-dated or post-dated 17 August 2017; and

5. Quantum.

WHAT HAPPENED ON 17 AUGUST 2017

8. Both parties prepared witness statements. This was an unusual expedient in a personal injury proceeding in this Court. Neither party’s Counsel referred the Court to any pre-trial direction indicating that evidence in chief would be given in this form. Be that as it may, after I indicated to Counsel my curiosity about the evidence being in this form, both Counsel were content for the evidence of their clients to be substantially – indeed wholly based on an adoption of those statements.

9. They commonly adopted the correctness of those statements when they gave evidence. Both parties also referred to recordings of interviews that they had with the police on the date of the incident. Since the interviews occurred prior in time before the witness statement was made, I will address them first when dealing with the parties’ evidence.

10. The evidence indicates that no one witnessed the incident, so the lay evidence was restricted to that of the protagonists.

The plaintiff’s evidence

Ms Southon’s DVEC interview (Ex C)

11. At about 6:28pm on 17 August 2017, being about 12 hours after the subject incident, Ms Southon spoke to Constable Angelo, from the Brisbane Water LAC.

12. She reported to him that on the morning in question, at about 6:00am, Mr Ray was going to the door. She noticed that he had a suitcase and she asked him if, in the future, he could tell her when he was going away. In response to this, Mr Ray told her that he did not have to. Ms Southon said that this (attitude) was not acceptable. She told Constable Angelo that he started yelling at her. Ms Southon told Mr Ray that she did not deserve to be treated like that. He then told her that he wanted her “out of his f***ing house”. Ms Southon said that it was her house too and that she had seen a solicitor and received legal advice.

13. Ms Southon opined that Mr Ray was angry. She later explained, in the same interview, that Mr Ray had gritted his teeth, got in front of her face, spat and foamed and kept slamming the door until paint started to crack around the door. It was at the point where she mentioned being in contact with the solicitor when he turned around and grabbed her and pushed her.

14. She told Constable Angelo that he grabbed her with both arms, on her shoulders (and clothes) and pushed her so hard that she fell one and a half metres, falling backwards and hitting her head on the coffee table. She estimated that the coffee table was about a body length’s distance from the front door. She then fell to the ground. She told Constable Angelo that he was facing her when he pushed her.

15. Ms Southon told Constable Angelo that this argument took place in the lounge room near the front door. She estimated that his weight, at the time, was about 100kg whereas her own weight was about 55kg. She told the officer that although he had grabbed and pushed her in the past, he had never previously ‘hit’ her.

16. She told Constable Angelo that she was not unconscious, but was feeling very dazed. Mr Ray told her to “stop faking it” and then ‘took off’. She then laid there for about 2 minutes. She was able to reach her phone and as she did, she noticed blood on the ground. She realized she was injured and rang Mr Ray and told him that she needed help and an ambulance. She could not recall what he said back, but recalled that he had hung up. She then rang the ambulance. When the ambulance turned up, so did Mr Ray. She told Constable Angelo that in the presence of the ambulance, he admitted pushing her.

17. She indicated that she had been back home and had cleaned up the blood.

Ms Southon’s witness statement in chief (Ex A)

18. Ms Southon’s principal statement was dated 4 May 2021 (Ex A). She prepared a further statement, dated 15 September 2021 (Ex B), which was in reply to Mr Ray’s witness statement prepared in this proceeding. It will be convenient for the reader for me to defer consideration of the content of that statement in reply until after reference is made to Mr Ray’s statement.

19. Ms Southon stated that she and Mr Ray had been involved in a relationship. At 6:00am on 17 August 2017, she and Mr Ray were in the living room at their home in Kariong. She stated that they had an argument. According to Ms Southon this started by her asking Mr Ray to let her know if, in the future, he wanted to go away and Mr Ray responded by indicating that he did not have to. She told him that she did not deserve to be treated like that. This then prompted Mr Ray to say that he wanted her “out of my fucking house”. She stated that during the conversation, Mr Ray stepped within a foot of her, yelled and spat in her face.

20. Under cross-examination, Ms Southon accepted that the subject matter of the argument concerned Mr Ray’s desire to leave the house. This, Mr Ray later elaborated, was his intention to leave the home for the next 3 nights: two of which was to enable him to see his brother and one of which was for a work purpose. He had multiple bags packed. It was suggested to Ms Southon, but she denied that the argument commenced in the bedroom. She stated that it took place entirely in the lounge room.

21. She stated that Mr Ray then went to the front door of the premises, located within a couple of metres of the living room, and began to slam the door frame repeatedly. This, she recalled caused paint from the door frame to chip and crack. Some paint landed on the lintel to the door.

22. Ms Southon accepted that Mr Ray desired to leave the house; though she denied that she was trying to prevent him from doing so. She also denied that she ran towards him to do so. She did, however, accept that she walked towards him. But this, she said, was to ask him to let him know when he was going away. She denied that she was angry with Mr Ray.

23. She recalled saying to Mr Ray that she had spoken to a solicitor about their relationship. This revelation caused Mr Ray to grit his teeth and she observed him ‘foaming at the mouth’. She stated that he grabbed her by the shoulders and clothes with both hands and pushed her. It was put to her, and she denied, that Mr Ray did not grab or shake her. She maintained that he had grabbed her with both hands. She denied that Mr Ray pushed her in order, only with a single hand, to get her out of the way so he could leave.

24. Ms Southon stated that with this force, she lost her balance, stumbled backwards and fell. As she fell back, her head struck a round coffee table, which was about a metre and a half from where she had been originally standing. It was put to her, but she denied, that when Mr Ray pushed her, she did not fall onto the coffee table. She maintained that she did. It was also suggested that she may have tripped over a nearby rug. Ms Southon rejected that suggestion: maintaining she fell directly on the table, which she estimated was only about a metre and a half’s distance to the door.

25. Ms Southon said that, as a result of hitting her head, she was unconscious for a period of between 30 seconds to a minute before she woke up. She recalled that her head split open and bled over the table, the rug, floor and living area.

26. She stated that after regaining consciousness, she told Mr Ray that she was dizzy and placed her hand on the part of her head where it had been split and he responded by saying words to the effect “stop faking it”. It was put to Ms Southon, but she denied that Mr Ray left immediately. She maintained that, for a time, he stayed there, abusing and yelling at her, before he left. But Ms Southon accepted that once Mr Ray had seen blood on her hands and table, his ‘attitude’ changed and he displayed sympathy towards her, and offered to help her. But she accepted that she shouted at him, telling him to get away from her and that he would never touch her again. She recalled Mr Ray leaving the property after she said these things.

27. She stated that she lay on the ground for about 2 minutes before she attempted to get up. She rang Mr Ray for assistance, but according to her, he shouted at her and hung up. She then rang her daughter-in-law who told her to ring the police and ambulance.

28. She rang the ambulance. After they had arrived, and during their treatment of her, Ms Southon stated that Mr Ray walked to the front door. It was put to Ms Southon, and she denied, that Mr Ray had returned before the entrance of the paramedics and that they had spoken in the kitchen. She said she was in the lounge room at all times. She indicated to the ambulance that it was he who pushed her and, according to her, Mr Ray admitted pushing her.

29. She stated being taken to hospital at 6:45am, where she received stitches for the laceration to the back of her head. She was capable of getting a taxi home. On the way, she rang Mr Ray to ask him to get medication. She recalled him returning to the property to deliver that medication.

Mr Ray’s evidence

ERISP interview (Ex 2)

30. Mr Ray was interviewed by Mudgee police officers (SC Byrne and SC Donald) at 7:40am on 18 August 2017, being the next morning after the incident.

31. Mr Ray described his relationship with Ms Southon as being “not good”; it had been ‘forced’ upon him for the better part of 17 years. He told police that Ms Southon was a friend of his mother’s and he persisted in the relationship since she had threatened to “take everything away from” him. He said that arguments between them had been “fairly regular”. Later in the interview, he told police that he would sometimes smash items of property. This, he explained, was quite effective in curtailing arguments.

32. He told police that at about 6am on 17 August 2017, he had his bags packed and was ready to leave. Ms Southon was unhappy that he was going away for the night (He later informed the Court that he was proposing to leave for 3 nights). An argument ensued about his going away. Mr Ray said that it was Ms Southon who got abusive. He estimated that the argument lasted for about 15 minutes. He did not characterise it as being physical, until later, before he left the house. He said that the argument happened in the lounge room area. (The front door led into the lounge room).

33. He explained that he went to leave the house, but Ms Southon had tried to block him from leaving. This, he said, was by her getting in front of the door, or (alternatively) trying to get in front of the door, to stop him from getting to it. So, he told police, he tried to move her out of the way but she had fallen over and he thought she must have hit her head. Asked by police whether she had put her hands on him, Mr Ray said that he thought that she probably had as he was trying to open the door and he said that she probably had tried to push him out of the way to stop him from leaving. He tried to move her out of the way by trying to push her whilst he was opening the door. Later in the interview, he accepted that he had slammed the door.

34. Later in the interview, Mr Ray told police that there were times in the relationship when he had tried to leave Ms Southon but she might have responded by threatening to kill herself. In this way, he explained, he felt compelled to stay with her.

35. Mr Ray disputed Ms Southon’s assertion about his taking hold of her shoulders. Whilst he accepted that he pushed her, with his right hand, whilst reaching around her, he was in the process of trying to open the door at the same time.

36. Police asked Mr Ray, directly, whether he saw Ms Southon fall. He answered that he did. He also said that she hit a coffee table. He told police that he thought that she had tripped on a rug.

37. Mr Ray said that, at first, he thought that Ms Southon had “purposely … jumped” onto the coffee table. This led him to declare that he was going out. So he left. But not long thereafter, he received a call from her saying that she was hurt. So he told police, he went back. He saw Ms Southon standing in the kitchen, telling him that she had been bleeding from the back of the head and that she had called an ambulance. He said he wold wait for the ambulance, but he would go again. He told police he drove around the block until he saw the ambulance.

38. He told police that he helped the paramedics get in and recalled a conversation that he and Ms Southon had with them. He told police that Ms Southon accused him of having “done this to me”. He told police that he said to the paramedics that “I pushed her and I think she’s fallen over um, and she’s bleeding from the back of her head.”

39. He told police that he drove around. He was unaware whether Ms Southon had been taken to hospital. But he recalled being rung by Ms Southon and asked to supply to her some Panadol and Ibuprofen. He obtained this from the pharmacy, dropped it off to her; then he drove up to Mudgee.

40. He told police that the house was in his name and that both of them had worked.

Mr Ray’s Witness statement of 24 July 2021 (Ex 1)

41. Mr Ray commenced his witness statement by pointing to the age differential between himself and Ms Southon. At the date of the incident (August 2017), she was just about 52 years of age. He was 33 years of age. He met her in 1998, when he was 14 and she was 33. At that time, Ms Southon became friends with Mr Ray’s parents and from that time, she often visited his parents’ home for social gatherings.

42. He stated that they commenced living together in 2000. By the end of that year, Mr Ray had dropped out of school and he started working as a factory hand for a paint company.

43. Mr Ray gave some evidence on the voir dire, later admitted, that in April 2017, he had an argument with Ms Southon ^[1] . It concerned his being in the house. He asserted that he had to call a friend to help him get free of Ms Southon. He recalled Ms Southon reached into a bag and threw some product at him. It was upon the basis of the disclosure of this incident, and this incident alone, that the Court admitted Mr Ray’s accusation (in paragraph 36 of his Ex 1) that Ms Southon had previously been physically violent towards him and threatened self-harm ^[2] .

    1. On the voir dire, Mr Ray gave evidence of other incidents, in 2012 and 2015, but the Court rejected the admission of his evidence about those respective incidents.

    2. There were other parts to paragraph 36, but they were not reflected in the incident in April 2017.

44. Turning to the events of 17 August 2017, he stated that Ms Southon had found out that he was going away that weekend for work and also to visit his brother. They started having an argument in the bedroom when she woke him up. The argument mainly took place whilst he was in the lounge room and she was in the study.

45. He stated that as he opened the front door, ready for work, he heard Ms Southon running towards him; her footsteps were ‘loud and fast’. He said he felt concerned that she was going to attack him and ‘feared for his safety’. He stated that he tried to get out of the house and shut the door before she reached him, but he could not get out in time.

41. He stated that when she ran towards him, all he could think about was times in the past where she had physically attacked him. He was worried about what she was going to do, so he pushed her away to protect himself.

42. He stated that he lifted his right arm; in an attempt to stop her from touching him; and, with the palm of his right hand, he pushed her right shoulder. He stated that after he pushed her, he turned his face away to face the door. He stated that he did not see her fall. He stated that he left, got into his car and drove for about 500 metres from the home. He stated that as he drove away, he was aware that Ms Southon had rung him on his mobile. He did not answer, so she left a voice mail message stating that she was injured. He stated that, upon hearing this message, he drove back to check on her.

43. When he returned home, he saw Ms Southon in the kitchen, holding a tea towel to the back of her head, presenting with ‘no issues’. He stated he did not observe any blood on her or on the floor. Later in his statement, he repeated his statement that he did not see any blood; let alone blood on the table, the rug, the floor and the living area.

44. He stated that Ms Southon had informed him that she had called an ambulance. This prompted him to return to his car and he remained there until the ambulance arrived. Once they arrived, he got out of the car to open the front door to let them to get inside.

45. He referred to and rejected almost the entirety of Ms Southon’s account of what occurred, as indicated in Ms Southon’s witness statement.

Features of Mr Ray’s cross-examination

51. It was put to Mr Ray that if, as he had said, he had pushed Ms Southon away with a single hand, it was improbable that the force would have been sufficient so as to cause her to lose her balance and fall on the coffee table. Similarly, it was put that if, as Ms Southon said, he pushed her with both hands, it was likely she would fall down. Mr Ray’s response was to say that he was turning away at the time and that he was not pushing her in the direction of the coffee table. It was not, he said, a planned push.

52. It was suggested that whereas in the past, Mr Ray gave vent to his anger arising from arguments with Ms Southon by smashing inanimate objects, on this particular occasion, he took out his anger on her personally. Mr Ray’s response was to the effect that the comparison was misplaced. His smashing of objects was only “defensive”, to prevent Ms Southon from attacking him. In connection with this line of questioning, Mr Ray, somewhat gratuitously, referred to earlier episodes of Ms Southon drawing a knife on him^[3] . Counsel for Ms Southon then put to him that if, as Mr Ray said this had regularly occurred, it would have been inconceivable that Mr Ray would not have mentioned this to police. Mr Ray said he was never asked by police. This appeared to be a reference to his ERISP interview. Be that as it may, Mr Ray was asked in re-examination (without objection) why he had not reported previous injuries he said were perpetrated upon him by Ms Southon, Mr Ray said that she had threatened him and had control over him. Mr Ray was not asked to elaborate, with any further specificity, what he meant by these answers.

    3. Counsel for Ms Southon argued that this was non-responsive evidence that the Court should disregard, particularly in the light of the Court’s partial rejection of paragraph 36 of Mr Southon’s statement. As to this argument see my credit finding at [60].

53. It was put to Mr Ray that he did not push Ms Southon out of self-defence, but because he was angry (and, implicitly, could not otherwise control that anger), and that his conduct was deliberate. Mr Ray denied that he acted deliberately. He also denied that by pushing her, he intended to cause Ms Southon harm. It was put to him that he must have known that by pushing someone, that someone might fall over and hurt himself or herself, being the natural consequence of the conduct. Mr Ray did not disagree with this proposition, but maintained that he was only trying to escape. In answer to a question from me, Mr Ray said that the coffee table was timber-coated and rounded and confirmed earlier evidence that it was between one and one and a half metre’s distance from the door from where he pushed Ms Southon. In answer to a question by Ms Southon’s Counsel he described the coffee table as being knee-height.

Ms Southon’s witness statement in reply (Ex B)

54. In her witness statement prepared in 2021, Ms Southon stated that she sometimes felt intimidated by Mr Ray in circumstances where he screamed at her and broke household items. Specifically, she stated that about a month before the subject incident, she told Mr Ray that she was no longer happy about their living arrangements. On that occasion, Mr Ray got angry and he smashed her cooking pots. The account of the version of the conversation, if true, indicated that Mr Ray demanded that she get out of her home.

55. She also stated that Mr Ray would accuse her of cheating on him and, when she denied this, he accused her of lying. Some text messages annexed to the statement dealt with this subject.

56. She took issue with aspects of Mr Ray’s account of what occurred during and after the incident. She denied running towards him: she had no need to do this since they were both standing in the lounge room. He did not just push her with the palm of his right hand, but grabbed and pushed her. He was facing her when she fell and hit her head. Upon his return to the property, she was not standing in the kitchen holding a tea towel to the back of her head: she had not entered the kitchen since she could not stand up; she had stayed on the ground until the ambulance arrived. He was gone and only returned once the paramedics had arrived. Contrary to his denial of seeing blood on the floor or lounge, Mr Ray described to paramedics her bleeding from the head at the time he admitted pushing her. He even retrieved a towel from the linen cupboard to assist paramedics. Ms Southon took photos of the room with blood on the floor before it was cleaned which were annexed to her statement.

Consideration

Credit

57. I found Ms Southon to be a good witness. She tried to give her evidence honestly. She struck me as calm. For the most part, she listened attentively and answered each question concisely. She gave answers against her interest, relating to her health conditions prior to the subject incident, and incident occurring subsequent to the incident and also the extent of her reporting of injuries after the incident. In other words, she did not seek to embellish or exaggerate when cross-examined and she was forthcoming in disclosure of these matters in her evidence. There was a general consistency between her statement evidence, what she told police and she was unshaken in maintaining her position when challenged in cross-examination.

58. I found Mr Ray to be an unsatisfactory witness. There were stark inconsistencies between his account to the police and what he said in his witness statement; most conspicuously when he told police that he had seen Ms Southon fall on to the table but then disputed seeing this in his witness statement. His attempt to reconcile the inconsistency was implausible. I do not accept his Counsel’s submissions that the discrepancies between what he said to police and his witness statement are explicable by fading (and fallible) memories. I doubt that seeing a partner with whom one has been in a de facto relationship for 17 years, even if the relationship was strained, fall from a push and hit her head on a coffee table would be easily forgotten by the perpetrator of the push. Further, when alerted to the circumstance that he had not told the police certain things that he had relied upon in his witness statement – Ms Southon running towards him and his fearing for his safety - he gave the disingenuous explanation that he was not afforded the opportunity to say what he otherwise would like to have said. Notwithstanding the question and answer format of that interview, Mr Ray agreed to participate in it and he had an obvious opportunity to indicate exculpatory matters. I agree with Counsel for Ms Southon that this aspect evidence smacked of recent invention.

59. His account, which depended upon the proposition that Ms Southon was physically blocking or may be about to block, his access to the front door, and the awkward manner in which he was trying to open the door whilst pushing Ms Southon away was inherently implausible. But even this evidence was equivocal: in cross-examination, he said that she did not ‘physically’ block his access to the door. His evidence denying observation of any blood in the room was also implausible – although Ms Southon later told police that she had cleaned up the room, at the time of Mr Ray’s denials in this regard, it is highly doubtful she would have had time to clean up the blood.

60. Finally, his evidence in Court was punctuated by attempts to blacken Ms Southon, whether or not they were responsive to questioning. In this way, Mr Ray engaged in acts of advocacy which did not assist the Court.

61. I am unable to accept Mr Ray’s truthfulness or reliability as a witness in the absence of corroboration or independent objective facts.

62. Where there is difference as between the parties, I have a marked general preference for Ms Southon’s evidence over Mr Ray’s evidence.

Findings as to what occurred

63. I acknowledge that it is a serious thing, even in a civil proceeding, to allege an assault and/or a battery against another person.

64. I am comfortably satisfied that this occurred. Leaving aside a general preference for Ms Southon’s evidence as a witness of credibility and reliability, the logic of the events favours acceptance of her account.

65. I am prepared to accept Mr Ray’s account to the extent that he suggested that he and Ms Southon had a prolonged and unhappy relationship; punctuated by regular arguments. It appears, unfortunately, that Ms Southon has had some longstanding issues affecting her health generally, and even mental health in particular. One of those is agoraphobia – an anxiety about leaving home. It can be readily imagined that a man like Mr Ray, much younger in age, may very often have wanted to take leave from her. It may be also be conceived that Ms Southon was anxious about seeing him go; at least without any concrete detail as to how long he might be expected to be absent and where he was going.

66. An argument arising from Mr Ray’s desire to go away was hardly likely to be novel. He had bags (more than one) packed and it is plausible that on 17 August 2017, he not only evinced an intention to leave but an unwillingness to provide any indication to Ms Southon as to how long that might be. It is unsurprising that she might take umbrage not only at Mr Ray’s refusal to provide that indication, but the rather disdainful manner of his refusal.

67. What made the argument different on 17 August 2017 is that, on that occasion, Ms Southon indicated that she had spoken to lawyers regarding his interest in the home after Mr Ray had told her he wanted her out of “his” house. The reference to solicitors enraged him more than previous arguments. He believed that it was his house and that not only had Ms Southon had the temerity to question that, but probably also that she had also gone behind his back and obtained legal advice about it.

68. I do not accept that she “ran” towards him. That was not something Mr Ray reported to the police. His evidence smacked of embellishment.

69. It was curious that, on her account, Ms Southon walked towards Mr Ray, as he was near the door, when he was in a clearly animated, or emotive mood. Nevertheless, I consider it likely that she did so because she wanted to ‘finish’ the discussion in a way that satisfied her need for information from him. Another reason was a desire to limit the raising of noise to the neighbours about how long he would be out as well as putting across her view that she had an entitlement to know his movements.

70. I reject Mr Ray’s evidence, bordering on the preposterous, that Ms Southon was capable of physically blocking him from access to the front door even if she wanted to, given the parties’ relevant differences in height and weight. I also reject Mr Ray’s evidence that he was capable of exerting the force he ultimately exerted by the palm of a single hand whilst trying to open the door with the other hand.

71. I find that Mr Ray’s anger and indeed contempt for Ms Southon boiled over. This manifested itself partly in Ms Southon’s description of him as having gritted his teeth and foaming at the moth. Shortly before that, he had slammed the door repeatedly. If there was any spitting at all, I am not satisfied that it was a deliberate act. Although in her witness statement, there is a reference to an isolated act of spitting, in her DVEC, such spitting as was referred to was only associated more with him foaming “at the mouth”. It is possible that Mr Ray’s saliva contacted Ms Southon, but not as a singular act of scorn. I accept that Mr Ray pushed her in the way that Ms Southon said he did, with both hands, against both her shoulders and that, looking directly at her, he saw her fall backwards, hitting her head on the coffee table.

72. I do not consider it necessary to determine whether or not Ms Southon tripped on the rug. This was only a surmise on Mr Ray’s part at best. At any rate, given the proximity of the push to the coffee table – only one and a half metres – it is not clear to me that even if she did trip on the rug, it would have made any difference.

73. Ms Southon fell and hit her head on the edge of that coffee table.

74. I will address Mr Ray’s mental state momentarily when addressing his self-defence argument.

75. A defendant who directly causes physical contact with a plaintiff commits a battery unless the defendant proves the absence of intention (and negligence). Trespass to the person does not require proof of intention. It is unnecessary to establish an intention to cause the level of harm that materialised.

76. Mr Ray did not contend that, if it was found that he pushed Ms Southon in the manner that she alleged, that he did not intend to do so. Subject to the defences (in common law and under the Act), he committed the tort of battery.

SELF-DEFENCE

77. At common law this defence is a hybrid of subjective and objective elements. The defence is established if the defendant proves that he subjectively believed that (a) it was necessary to grab and push Ms Southon in order to protect himself; and (b) his belief was founded on reasonable grounds: State of NSW v McMaster (2015) 91 NSWLR 666 (“McMaster”) per Beazley P (as her Excellency then was; McColl JA and Meagher JA agreeing) at [156]-[169].

78. The statutory defence in s 52 (and s 53) of the Act conditions the application of the defence to circumstances where the plaintiff’s conduct is ‘unlawful’. It would then be necessary for the defendant to establish a serious offence (s 54). The effect of s 3A of the Act is that the statutory immunity provided by s 52 is supplementary to the availability of self-defence to common law actions: McMaster at [210].

79. In McMaster, it was determined (at [200]-[204]) that the word ‘unlawful’, when used within s 52, is not limited to criminal conduct, but extends also to tortious conduct – in that case, the tort of trespass to the person. In Croucher v Cachia (2016) 95 NSWLR 117at [42], Leeming JA suggested that tortuous conduct, in this context, requires not only that the elements of the tort are established, but also that no defence to the tort is made out.

80. Section 52 is different to the common law in another critical respect. Under the common law, a defendant must show that he or she actually believed it is necessary to act and that such belief was based on reasonable grounds. Section 52 makes it sufficient the defendant honestly holds that the conduct was necessary to achieve one (or more) of the enumerated grounds in s 52(2). Then it must be shown that the response is reasonable having regard to the circumstances as the defendant perceives them to be. As Mr Villa explains in his text book, that means that a defendant can rely upon self –defence if he actually, albeit mistakenly, believes, that his conduct is necessary in any of the circumstances in s 52(2) ^[4] . However, against this, the question is not whether the defendant considers that the response is reasonable; but whether the response objectively was in fact reasonable.

    4. D Villa, Annotated Civil Liability Act (3rd ed, 2018, Thomson Reuters) [7.52.090], p 623

Parties’ arguments

81. Mr Ray admits that an argument took place. He submitted that the Court should find that he attempted to leave the home but altered that proposed course when Ms Southon ran towards him. The Court should find that this caused him to fear an imminent attack.

82. Ms Southon submits that the Court should find that there were various signs that Mr Ray had lost his temper and self-control; and that he grabbed her by the shoulders and clothes, with both hands and pushed her backwards with force. This caused her to lose her balance, stumble backwards and fall and strike her head on the coffee table.

83. Ms Southon argues that Part 7 of the Act cannot apply since Mr Ray cannot prove that her conduct, to which he responded, was “unlawful”. Nor could it amount to a ‘serious offence’.

Consideration

Self-defence in common law

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.

84. 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.

85. 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.

86. The defence of self-defence in common law fails.

Self-defence under the Act

90. In his submissions, Counsel for Mr Ray submitted that Ms Southon acted ‘unlawfully’ in a number of ways, being the commission of an act of assault, or depriving Mr Ray of the capacity to leave the home (or, put another way, the unlawful deprivation of liberty: s 52(2)(b)). That, it was said, was two ways in which s 52 was enlivened.

91. This is an instance where, in my view, s 140(2) of the Evidence Act1995 (NSW) is engaged. That is so because if the defence is made out it carries the grave consequence for an injured plaintiff of excluding civil liability to the defendant.

92. This argument fails on the facts, for reasons essentially already indicated. I do not accept that Ms Southon did anything which caused Mr Ray to believe he needed to defend himself against an attack by Ms Southon. Nor did he honestly believe that she deprived him of his liberty.

93. I would also add, in passing, at least in relation to the notion of a deprivation of liberty, that even if Ms Southon did prevent Mr Ray from exiting the home, his conduct in pushing her was not a reasonable response to the circumstances as he perceived them to be (s 52(2)). Critical in this context is that, on the premise that Ms Southon did block his passage, Mr Ray did not even ask her to permit him to leave. I have similarly noted that even if, contrary to what I had found, Mr Ray subjectively believed it was necessary to defend himself, in the circumstances as he perceived them, to defend himself against physical attack from Ms Southon, he did not ask her to ‘back off’, or get out of his ‘space’. Instead, he resorted to force as a first resort. His conduct in grabbing both of her shoulders and pushing her backwards was not a reasonable response in the circumstances he perceived them to be.

94. Since I have found that Mr Ray did not actually believe that it was necessary for him to grab and push Ms Southon by reason of the matters in s 52(2)(a) or (b), s 53 is not engaged.

95. Nor am I satisfied that Ms Southon’s injury followed conduct by her which, on the balance of probabilities, constituted a serious offence, for the purposes of s 54(1) and (3) of the Act.

96. The defence of self-defence under the provisions of Part 7 of the Act fails.

97. In the result, Ms Southon has made out her action, in tort for battery. It is unnecessary to consider the alternative action in negligence.

WHETHER THE CIVIL LIABILITY ACT REGULATES THE CLAIM FOR DAMAGES

Submissions

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.

Consideration

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. ^[5]

     5. There is a YouTube clip from Seinfeld titled “All of Elaine’s Shoves” featuring separate pushes against each of George, Kramer and Jerry being a friendly manifestation of surprise upon hearing positive news of certain events.

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.

THE PLAINTIFF’S INJURIES & DISABILTIES

Ms Southon’s health prior to the incident

112. One of the disabilities which Ms Southon asserted was attributable to the incident was agoraphobia. Ms Southon accepted that she had had this condition since at least 2002 which was sufficiently serious as to prevent her from working full-time.

113. It was suggested to Ms Southon that she had had issues with her shoulder and arm before the incident. She did not agree. But she accepted that she saw Dr Edmonds in January 2016 in relation to a complaint about her right hand and, specifically pain in the preceding 18 months (see also Ex 4-5). She disputed that it had radiated up to her shoulder: it was confined to her hand. She accepted that Dr Edmonds referred her to a hand therapist; but she explained that she did not attend. She could not afford it.

114. Asked whether she had told Dr Sheehan, who was later qualified to give expert opinion, about her hand and arm symptoms, she said that she told him about the referral to a specialist. She also indicated that she disclosed to him the suspicion that she may have thoracic outlet syndrome. She accepted that she did not pass this information on to Dr Fraser, the defendant’s expert; although she believed that he had all the x-rays and the reports. She believed that Dr Fraser understood that she had a history of pain in her right hand in 2016.

115. Ms Southon accepted that she had had experience with dizziness since 2005. This was something she mentioned to Drs Sheehan and Fraser.

116. She also accepted that she had suffered from vertigo since 2005; in respect of which she receives medication. She accepted that, since 2012, the degree of vertigo was such that she could not hang out the washing. It was put to her that she did not disclose this to Dr Fraser, but Ms Southon recalled that she did. In re-examination, she said that since the incident, she had suffered from vertigo every day: it affected her now if she merely turned her head.

117. Ms Southon informed Dr Fraser of a strain of the lower back which had occurred in 2007.

Treatment after the incident

118. Paramedics attended the scene and Ms Southon was taken to Gosford Hospital. Stitches were inserted in the back of her head.

119. Ms Southon accepted that at the point of time when paramedics arrived, she did not complain of pain to her neck, or her right arm. She accepts that she informed paramedics that she had not lost consciousness; but, indeed had a full recall of events and was alert. A note from the ambulance (Ex E) also recorded that she had told the paramedics that when she had tried to get up after her fall, she had felt weak and dizzy.

120. Paramedics recorded a small (2cm) superficial laceration to the left occipital region of the head, with moderate blood loss; although the bleeding had stopped. Paramedics recorded that she was very emotionally distressed.

121. She was capable of walking with the ambulance officers to hospital without the aid, for example, of a neck brace.

122. At hospital, she complained about pain and the laceration to her head. She told medical professionals in the hospital that she had not experienced vomiting, and was alert and oriented.

123. On 7 September 2017, Ms Southon attended Reliance Medical Practice. She accepted that at this time, she did not complain of pain in her neck or right shoulder. At that stage, there were no radiological investigations to her neck or right shoulder. She did, however, complain of depression, headaches and dizziness.

124. It was on 1 August 2018, nearly a year since the incident, when an X-ray was first performed on her neck. Degenerative spondylosis was detected, most markedly at the C5/6 level. On 4 December 2018 an X-ray was first performed on her right shoulder. Mild to moderate AC joint arthritis was present.

125. On 14 August 2018, Ms Southon received referrals to see a chiropractor (Dr Stevenson) and physiotherapist (Harley Haywood) (Ex 6).

Ms Southon’s evidence regarding symptoms and treatment

126. In her principal witness statement, Ms Southon said that in the night that followed the incident, she experienced general dizziness and vomiting and that those symptoms lasted for three days. When the social worker rang in to check on her welfare the day after the incident, Ms Southon told her that she had felt dizzy and had vomited all night.

127. Ms Southon stated that she felt better over the next 2 weeks, and was experiencing less headaches. However, she stated that a sharp pain began to develop on her right side, starting from her neck and going down to her right hand.

128. She stated that approximately a week after the incident, she was experiencing stiffness and pain in her neck. She commenced having weekly appointments with a general practitioner and she was prescribed painkillers.

129. On 20 August 2018, a year after the accident, she started to see Dr Angus Stephenson to help relieve back pain.

130. She recalled that in March 2019, she saw Dr Hartin after experiencing neck pain. On 20 March 2019, a report of Dr Nathan Hartin (within Ex F), a spine and scoliosis surgeon with the Royal North Shore Hospital, commented upon an MRI of her neck performed in February 2019. The conclusion of the Imaging Department of Gosford Hospital was no abnormality of note in the cervical spine. Dr Hartin interpreted moderate degenerative changes through the middle of the neck (the C5-6), but no severe compression. He considered that her axial neck pain likely arose from degenerative changes observed in the neck. He opined that her reported right arm pain was not radicular. The cause of the pain in the right arm was ill-defined.

131. She had an appointment with a neuroscientist, Professor Crimmins in July 2019. She stated that by early January 2020, she was still experiencing daily headaches, weakness in her arms and right hands and stiffness in her neck.

132. In her main witness statement, when assessing her disabilities, Ms Southon complained of:

1. constant pain over the rear of her neck at the rear or her occiput, which radiated downwards between her shoulder blades and the top of her right shoulder; and also constant pain in her right thumb and hand;

2. pain in her neck (mainly in the right side) which is aggravated by any movement or activities that require lifting above the waist and any activity requiring her to put her arms above her head;

3. pain in her right arm causing weakness and poor co-ordination in her right hand, reducing her ability to grip and hold objects;

4. an inability to lift her arm due to it feeling heavy;

5. discolouring in her right hand and a deformity to the extent that she has a ‘claw shape’ when gripping objects;

6. pain in her neck resulting in daily headaches of varying severity. These headaches are exacerbated when lying in bed, which disturbs her sleeping patterns;

7. occasional episodes of dizziness and mild vertigo.

133. In cross-examination, Ms Southon accepted that she complained about episodes of concussion since the incident in August 2017, which prompted numerous investigations.

134. The plaintiff relied upon reports of Associate Professor Denis Crimmins, a consultant neurologist, who had treated her. The reports (Ex F) were dated 31 July 2019, 19 June 2019. Professor Crimmins reported Ms Southon’s ongoing issues with her right arm and opined that she had brachial plexus damage on the right side consequentially to the incident; which possibly led to the development of regional pain syndrome involving her right arm. Professor Crimmins also noted that she had concussive symptomatology, middle ear fullness and a degree of tinnitus.

135. In his earlier report of June 2019, Professor Crimmins commented that no surgical lesion had been determined following review by a range of spinal surgeons. In this report, Professor Crimmins anticipated that the discolouring of her hand indicated regional pain syndrome.

136. Professor Crimmins’ reports followed a referral from the Reliance Medical Practice (dated 8 May 2019) which had stated a history of concussion and weakness of the right hand.

Subsequent injuries

137. In her main statement, Ms Southon also disclosed an injury subsequent to the subject incident, in which she slipped and fell in a shopping centre on 26 April 2020. She states that this caused some additional injuries whilst exacerbating injuries she believes were caused through the incident. She felt stabbing pain when reaching out or up above shoulder level. She now experiences pain at the front of her shoulder at about the level of her armpit. If she has to move or lift objects at waist level, she does so at a slower rate. She feels frequent pain and numbness in her right leg and buttocks resulting in leg spasms when lying in bed. She cannot walk for longer than 10 minutes without being in pain or crouching down to her knees.

Expert evidence for the plaintiff

Dr Sheehan

138. Dr Thomas Sheehan prepared a medico-legal report for the plaintiff (Ex D). It is dated 2 February 2021. Dr Sheehan is an Occupational Health and Safety, Rehabilitation Consultant. His diagnoses were admitted over the defendant’s objection.

139. On examination of Ms Southon, Dr Sheehan located a small depression over the top of her right shoulder medial to its AC joint. He also found bluish discolouration of the dorsal aspects of her right fingers which he regarded as being consistent with chronic regional pain syndrome.

140. Dr Sheehan referred to the radiological investigations and the opinions of Professor Crimmins and a letter from Ms Southon’s chiropractor, Mr Stevenson.

141. Dr Sheehan diagnosed the following injuries arising from the incident:

1. strains and tears involving Ms Southon’s neck;

2. severe aggravation of a pre-existing but previously asymptomatic degenerative disc disease in her neck;

3. soft tissue right shoulder injury.

142. He also indicated other injuries, which he regarded as being best assessed by other specialists. The defendant took particular objection to these injuries, which objection was overruled. They were a right-sided brachial plexus-injury, chronic regional pain syndrome in the right arm and hand; dizziness and vertigo and anxiety and depression. He opined that the diagnoses were causally related to the incident on 17 August 2017.

143. Dr Sheehan did not consider that any pre-existing injury, condition or disease contributed to the injuries. He considered, though, that her injuries had stabilised and reached the stage of maximum medical improvement.

Expert evidence for the defendant

Dr Fraser

144. Dr Fraser is an orthopaedic surgeon. He examined Ms Southon on 3 June 2021. At that examination, Ms Southon complained of continuous headaches, pain at the back of her head and at the right side and at the back of her neck; and pain extending out to the right scapular area and to the right upper arm. She also complained of intermittent pain in her right hand, radiating up the medial side of her forearm and numbness in her hand.

145. Dr Fraser opined that Ms Southon was suffering from degenerative cervical spondylosis; and suffered from degenerative changes in her right shoulder and tendinosis of the hamstring origin in her right buttock. He did not accept the diagnosis of a brachial plexus injury. If she had, she would likely have experienced immediate symptoms. Further, a brachial plexus injury required substantial traction force applied to the upper limb, or a force between the neck and shoulder girdle. He did not consider that symptoms in her right hand were attributable to the incident and indeed, considered that her symptoms in the right hand did not represent an identifiable orthopaedic injury. Essentially, he considered that she sustained a transient exacerbation of pre-existing degenerative changes in her neck and right shoulder.

146. Dr Fraser also considered that it was possible that Ms Southon suffered a transient exacerbation of her conditions, in her subsequent fall at Woolworths.

147. Overall, he considered that the injuries sustained on 17 August 2017 were transient. She had a good prognosis and did not expect further deterioration.

148. Dr Fraser disagreed with Dr Sheehan’s opinion. Addressing each of Dr Sheehan’s diagnoses, in turn, Dr Fraser found no evidence, on examination, of strains or tears in the cervical spine; nor aggravation of any pre-existing spondylitic degenerative disease in Ms Southon’s neck. If there was any injury in respect to a spondylitic degenerative disease of the neck it was ‘exacerbated’, not ‘aggravated’; in the sense that Ms Southon may have suffered transient symptoms, but there was no permanent deterioration.

149. Dr Fraser reiterated that Ms Southon suffered a soft tissue injury to her right shoulder by way of exacerbation of pre-existing degenerative changes. She had not suffered any permanent brachial plexus injury. She did not exhibit symptoms of chronic regional pain syndrome.

150. Dr Fraser refrained from commenting on dizziness or vertigo, anxiety or depression.

INJURIES & CAUSATION

151. A notable feature of the cross-examination was that Ms Southon was not challenged in her evidence that these symptoms actually existed. It was not suggested, for example, that she exaggerated or embellished her account of them. Dr Sheehan commented favourably upon her presentation to him. Although he expressed opinions contrary to Dr Sheehan, Dr Fraser did not say anything to suggest that Ms Southon was anything other than a reliable correspondent. These matters, along with my acceptance of Ms Southon as a witness of credit, lead me to accept her evidence of her injuries and disabilities itemised (at paragraph 51) of her primary witness statement.

152. The real question is whether the battery – the push - which occurred on 17 August 2017 caused those injuries and disabilities. Mr Ray’s position is that, other than the laceration to her head caused by the impact with the coffee table, which was soon to be addressed, none of the other injuries or disabilities about which Ms Southon complains could be said to be caused by the incident.

The element of factual causation

153. Since the Act applies, it is necessary for Ms Southon to establish both elements of causation in s 5D, being factual causation and the scope of liability element. No submission was made by the defendant that in the event that factual causation is established in relation to the alleged personal injuries, that the scope of liability element would militate against any contrary result i.e. no liability. That aspect may therefore be put to one side. The issues of causation turn upon the element of factual causation.

154. Section 5D requires proof, upon which Ms Southon carries the onus, that it was Mr Ray’s conduct that was a necessary condition of the particular harm alleged. As to the standard of proof, in a claim for damages for personal injury in tort (albeit in the context of negligence), Kiefel J (as her Honour then was) in Tabet v Gett (2010) 240 CLR 537 said:

“[111]   All that is necessary is that, according to the course of common experience, the more probable inference appearing from the evidence is that a defendant's negligence caused the injury or harm. “More probable" means no more than that, upon a balance of probabilities, such an inference might reasonably be considered to have some greater degree of likelihood; it does not require certainty”.

Avoiding conflation of causation with quantifying damages for pre-existing injuries

155. As it happens, much of Mr Ray’s case on quantum, based on Dr Fraser’s evidence, was that at least some of the physical injuries amounted only to a temporary exacerbation of pre-existing injuries.

156. However, whether the nomenclature is properly one of ‘exacerbation’ or ‘aggravation’ of pre-existing injury or a pre-disposed susceptibility to injury, often these matters are better addressed as a matter that goes to quantifying damages, rather than the anterior question of factual causation which, as the passage from Tabet v Gett suggests, is not a very demanding threshold. I refer to the principles for damages assessment in this context later in these reasons (see [186]).

157. I now turn to each of the injuries claimed (and accepted by me) by Ms Southon.

158. Before I do, I should indicate a general preference for the evidence of Dr Fraser over Dr Sheehan on matters relating to orthopaedic expertise. Dr Fraser has that. Dr Sheehan’s background is more generalised. Further, on matters contested as between both experts, Dr Fraser elaborated reasoning in a more transparent and persuasive way than Dr Sheehan; including direct responses to Dr Sheehan’s diagnoses. (No report from Dr Sheehan in reply to Dr Fraser’s report was before the Court).

The neck and right shoulder

159. As to Ms Southon’s complaints concerning pain in her neck, right shoulder (and arm), I accept that these symptoms did not materialise until any earlier than August 2018 (in the case of the neck) and December 2018 (in the case of her shoulder). However, the absence of any immediate or close temporal connection between the incident and the materialisation of these symptoms is not fatal to this aspect of the claim.

160. Dr Fraser’s view was that Ms Southon may have sustained a transient exacerbation of pre-existing degenerative conditions in her neck and right shoulder which may have become apparent causing her to consult a general practitioner six days after the incident in question.

161. Counsel for Mr Ray acknowledged that there was no other event, between the date of the battery and August 2018 (for the neck) or December 2018 (for the shoulder) which could explain, or separately account for her symptoms in the neck and right shoulder. She was not working. Her fall at Woolworths did not occur until 2020. Nor was there anything to suggest, prior to 17 August 2017, any symptomatology in the neck and the right shoulder.

162. I find, on the probabilities, that the battery exacerbated a pre-existing susceptibility to injury in her neck and right arm. Contrary, however, to Dr Fraser’s opinion, I do not accept that it was merely ‘transient’ in the sense that it caused some initial problem, but the problem had settled. That would be to disregard the plaintiff’s evidence of ongoing complaint about her neck and shoulder; whose ongoing nature, as I have said, was not challenged. It would also disregard Dr Sheehan’s observations of restrictions in her right shoulder apparent upon examination as at February 2021.

163. I accept therefore that factual causation is established in relation to the connection between the battery and Ms Southon’s neck and right shoulder injuries. To anticipate however, there should be a discount on the damages, reflecting the possibility, that some other event in Ms Southon’s life and circumstances would have rendered symptomatic that which had been previously asymptomatic. To this end, Ms Southon pointed out that the difficulties with her neck, shoulder and arm had worsened as a result of her fall in Woolworths in April 2020.

164. As to Dr Sheehan’s separate diagnosis of muscular ligamentous strains or tears involving Ms Southon’s cervical/thoracic spine, I prefer Dr Fraser’s opinion that there is no evidence for this, for the reasons he gives.

Right arm/hand

165. Counsel for the defendant did not address this complaint in his submissions. Dr Crimmins recorded Ms Southon’s complaint to him in March 2019 about pain in her right arm, extending to her right hand, which he could not explain.

166. Dr Sheehan also noted the bluish discolouration in Ms Southon’s fingers and inferred chronic regional pain syndrome. But Dr Fraser opined that the results of the examination of the right forearm did not identify signs of symptoms indicative of that diagnosis. That may be so, but it does not appear that Dr Fraser conducted his own examination of her right forearm, and did not comment on the significance of the discolouration in her fingers.

167. On balance, particularly in view of Associate Professor Crimmins’ account of pain in the right arm and hand, supplemented by Dr Sheehan’s reference to disclouration and acceptance of the authenticity of Ms Southon’s complaint, I find on the probabilities that the battery has caused pain in her right arm and hand. It is unnecessary to determine whether her injury constitutes chronic regional pain syndrome.

168. As with other physical injuries, I find that on the basis of her seeing Dr Edmonds from 2016, she also had pre-existing issues with pain in her right hand, to such degree that she received a referral from him to see a hand therapist. This is another instance where the assessment of damages in respect to pain from the hand should make allowance for the fact that some of it was caused by matters other than Mr Ray’s conduct.

Brachial plexus injury

169. Dr Fraser disagreed with Dr Sheehan’s diagnosis about this.

170. However, I place significant weight upon the opinion of Associate Professor Crimmins (Ex F) who opined, in July 2019, that there was little doubt that Ms Southon had brachial plexus damage on her right side as a consequence of the battery. Having regard to the nature of that type of injury, I prefer Professor Crimmins’ opinion given this expertise in the subject matter in comparison to Dr Fraser.

171. There was no suggestion that Ms Southon had this injury, or susceptibility to it, prior to the incident. I found that this injury was caused by the tort.

Loss of consciousness

172. In her principal witness statement, Ms Southon said that after hitting her head, she “felt” like she became unconscious and that she had, at one point, “regained” consciousness.

173. This was lay opinion unsupported by expert evidence. Moreover, I note that in the ambulance record (Ex E), Ms Southon was reported as denying any loss of consciousness. The ambulance note also indicated no other neurological symptoms evident. Further, the hospital discharge summary (Ex 12) (dated 30 December 2017) found no acutre intracranial injury or cause for syncope. An EEG was normal.

174. I am not persuaded that the battery caused any loss of consciousness. I accept, as the defendant conceded, that it would be expected that she was dazed or disoriented as a result of the impact, but am not persuaded that this was manifested in enduring neurological symptoms.

Dizziness/vertigo/concussive symptoms

175. Ms Southon reported to Dr Sheehan of experiencing generalised dizziness and vomiting during the night after the battery and she said the symptoms lasted for three days or so. However, a little less than a month after the incident (12 September 2017), a CT of her brain indicated no intracranial trauma. Then on 17 May 2018, an EEG performed (Ex 7) was normal.

176. Ms Southon gave evidence, in chief (paragraph 51(g)) and in re-examination, of suffering dizziness virtually every day since the incident. She was not challenged on the veracity of that evidence, other than the assertion that she had not mentioned this to Dr Fraser – an assertion that was never rebutted. I accept her evidence. The focus of the cross-examination was essentially limited to seeking concessions about the condition prior to the incident; concessions which Ms Southon, to her credit, readily made.

177. I accept the force of the defendant’s criticism that, ordinarily, proof of a connection between these particular symptoms and the incident should require expert evidence or independent studies. Such studies or investigations as were in evidence do not assist Ms Southon’s case in this regard.

178. I place very limited weight upon Dr Sheehan’s diagnosis regarding vertigo or dizziness; which was barely admissible. Not only is there doubt about the extent or breadth of his expertise, which Dr Sheehan, to his credit, implicitly acknowledged but his conclusion was devoid of reasoning. It would have been preferable if, like Dr Fraser, he refrained from expressing a diagnosis at all, even a tentative one.

179. However, Mr Ray’s Counsel pointed to evidence containing numerous complaints about dizziness or vertigo from May 2005 through to April 2014. As noted earlier, Ms Southon did not shy away from accepting that she had vertigo and dizziness prior to the incident.

180. On the probabilities, I find that the intensity and/or frequency of Ms Southon’s vertigo and dizziness has been exacerbated by the knock she took to her head on the date of the incident and, in this way, causation is established. As with my earlier views in relation to the plaintiff’s neck and shoulder pain, this is another instance where the assessment of damages would need to take into account the circumstance that a very substantial proportion of these particular conditions is attributable to pre-existing conditions separate or distinct from Mr Ray’s tortious conduct.

Anxiety and depression and agoraphobia

181. This was one of the diagnoses made by Dr Sheehan in circumstances where he acknowledged that a psychiatrist was better placed to make it. I infer that Dr Sheehan adopted as correct an opinion contained in Professor Crimmins referring (in Ex F) to depression and anxiety. I do not consider that I can place weight on Professor Crimmins’ opinion. Professor Crimmins himself had no expertise as a psychiatrist, or even psychologist. He is a neurologist. No underlying reasoning was supplied to justify Dr Sheehan’s opinion.

182. Ms Southon gave no evidence of her anxiety or depression herself, in either of her statements. Further, there was no expert evidence from a psychiatrist.

183. Nevertheless, there was evidence indicative of prior depression and anxiety, contained in the Gosford Discharge Hospital summary (Ex 12) and, in the aftermath of the incident, police identified that she was crying and emotional and expressed feeling suicidal. Dr Bortolotti identified what was termed an “Acute stress reaction”. Documents produced by the Berowra Family Medical Practice indicated anxiety and depression going back to about 2002 to 2004 (Ex 10).

184. I accept that the tort probably exacerbated her pre-existing anxiety and depression.

185. As to the disability of agoraphobia. Ms Southon was specifically asked about the agoraphobia that she had had well before the incident and she confirmed it. This appeared to be a condition afflicting her since 2002 (Ex 10). Ms Southon did not give evidence about any tangible deterioration in this particular condition. I am unable to determine the extent to which this condition was exacerbated by the incident.

QUANTUM

186. Given the controversy as to whether it is the common law or the Act which determines the heads of loss, I asked Counsel to prepare schedules of damages which would reflect each of those alternatives.

187. A recurring theme in the assessment of damages is the significance of pre-existing injuries, or a predisposition to injury, and subsequent injuries to the heads of loss. As I noted earlier, this is discrete from the issues of causation earlier addressed. In Joldzic v Patrick [2021] NSWDC 55, I referred to the principles for assessment of damages where a pre-existing condition (in that case a psychiatric condition) became symptomatic following the tortious conduct of a defendant. I said (omitting citations):

“227 In a context where the defendant contends that the plaintiff suffered from the development of a psychiatric condition, caused by a defendant’s negligence, when she had a pre-existing vulnerability or susceptibility to a psychotic disorder, the position is generally described by Professor Luntz in his seminal text, Assessment of Damages for Personal Injury and Death (2016) at [2.2.1], as involving any one of the following types of situation:

(1) where the plaintiff was almost certain to have gone through life unaffected by her ‘thin skull’ (or might also be called her ‘pre-existing condition’), the defendant is liable for the total effect of its wrongful conduct on the plaintiff;

(2) where the pre-existing condition was of a type that would ultimately have affected the plaintiff anyway, the defendant is liable only for the acceleration brought about by the wrongful conduct; or

(3) where although there was a fair chance that some precipitating cause other than the defendant’s conduct would have brought the plaintiff to the same state, but would not necessarily have occurred, the Court must evaluate that chance and discount damages accordingly.

228 As to the last of these categories of situation, in Wilson v Peisley Barwick CJ explained that:

“…whilst the (tortfeasor) must pay for bringing out that condition what he must pay must... justly reflect the fact that that condition was not merely latent (in the claimant) but that events, not of an unusual or unlikely kind, could and might in the ordinary course of life have evoked that condition had not the (tortfeasor’s) negligence intervened...”

229 In Seltsam v Ghaleb, Ipp JA (Mason P agreeing) said (at [103]-[109]):

“[103] Therefore, according to Malec:

(a) In the assessment of damages, the law takes account of hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring.

(b) The court must form an estimate of the likelihood that the alleged hypothetical past situation would have occurred.

(c) The court must form an estimate of the likelihood of the possibility of alleged future events occurring.

(d) These matters require an evaluation of possibilities and are to be distinguished from events that are alleged to have actually occurred in the past, which must be proved on a balance of probabilities.

….

[105] Where a defendant alleges that the plaintiff suffered from a pre-existing condition, the evidential onus as explained in Watts v Rake and Purkess v Crittenden remains on the defendant and must be discharged by it. Nevertheless, to the extent that the issues involve hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring, the exercise of “disentanglement” discussed in those cases is more easily achieved. That is because the court is required to evaluate possibilities in these situations – not proof on a balance of probabilities.

[106] Without intending to give an exhaustive list of possibilities, it may be that, had the defendant’s negligent act not occurred, a pre-existing condition might have given rise to the possibility that the plaintiff’s enjoyment of life and ability to work would have been reduced and to a susceptibility to further injury; in addition, other causes entirely unrelated to the defendant’s negligent act might have contributed to the plaintiff’s ultimate condition.

[107] Appropriate allowances must be made for these contingencies. A proper assessment of damages requires the making of a judgment as to the economic and other consequences which might have been caused by a worsening of a pre-existing condition, had the plaintiff not been injured by the defendant’s negligence. A pre-existing condition proved to have possible ongoing harmful consequences (capable of reasonable definition) to the plaintiff, even without any negligent conduct on the part of the defendant, cannot be disregarded in arriving at proper compensation.

[108] As was pointed out in Newell vLucas [1964-5] NSWR 1597 (at 1601 per Walsh J, with whose judgment Hardie and Asprey JJ agreed), the court must determine whether a comparison may be made between the plaintiff’s condition prior to the injuries sustained by the defendant’s negligence (including the plaintiff’s economic and other prospects in that condition) and the plaintiff’s condition and prospects after the injuries. Nothing in Watts v Rake and Purkess v Crittenden precludes the judge from carrying out this exercise.

[109] Of course, if the evidence does not adequately establish the pre-existing condition or its possible consequences (as was the case in Purkess v Crittenden), it would not be possible to carry out such a comparison and assessment. In regard to the possible consequences, a scintilla of evidence would not suffice. The evidence must be such that a reasonable person could draw from it the inference that the possible consequences contended for by the defendant existed (see McCormick, Evidence, 5th ed, para 338, p511).”

General damages/Non-economic loss

188. Counsel commonly accepted that allowance for this head of loss largely turned upon the extent of the injuries found to have been caused by the incident. To reiterate, I found that the pain in her neck, right shoulder, right arm and hand is causally attributable to the battery; whilst acknowledging that each of those particular conditions were also contributed by a pre-existing susceptibility or exacerbation of degenerative changes (in the neck and shoulder), and further exacerbation following her fall in Woolworths subsequent to the accident. As indicated earlier, I accept Ms Southon’s (unchallenged) description of her disabilities identified (at paragraph 51) in her witness statement.

189. On the assumption that her claim was at large, the plaintiff claims a sum of $120,000. Alternatively, under the Act, Ms Southon submits that her case fell within 28% of a Most Extreme Case, which, she said, would yield the sum of $97,000. Mr Ray argued that she did not meet the threshold for recovery of non-economic loss.

190. The defendant’s Counsel drew the Court’s attention to a decision of Neilson DCJ in James v James (No.3) [2020] NSWDC 797, another case of intentional torts. Mr Davis acknowledged that all such awards turn on their own facts but indicated that much would depend upon the nature and extent of the injuries. There were two torts in that case. The first involved a combination of ‘verbal assault’ and battery, constituted by grabbing the plaintiff’s hands and wrists and arms and shoulders. She suffered bruising around her arms and wrists. For this tort, she was awarded ‘compensatory damages’ in the sum of $15,000. The second tort was more serious. That was also a combination of verbal assault, but the battery was more significant (including, amongst other things, multiple shoulder charging, spitting, multiple acts of kicking, multiple acts of hitting with an open hand and slapping her face twice causing pain to her jaw and ringing in her left ear; multiple acts of pushing). The plaintiff sustained bruises to her arms, suffered acute lower back pain, depression, panic and anxiety, a gynaecological complaint and PTSD. She received an award for compensatory damages of $140,000.

191. In Giller v Procopets (2008) 24 VR 1 the Victorian Court of Appeal was required to assess damages for assault and battery in a domestic context. The Court of Appeal approved the proposition that the victim of a domestic assault was entitled to compensation "for any injury suffered, pain and suffering and loss of enjoyment of life together with any distress, indignity and humiliation" (Neave JA at [480]). That proposition was approved in Cooper v Mulcahy [2013] NSWCA 160 at [129]-[130]. Elsewhere, the Court of Appeal in Cooper emphasised the conditions which the tort caused and their duration.

192. Taking into account the injuries that I have found were caused and their duration, whilst recognising that a substantial part of her conditions have been contributed to by other causes, I would make allowance for general damages of $40,000.

193. If I am wrong in my finding about s 3B, so that the assessment is of non-economic loss undertaken with respect to the Act, I would have found that the severity of non-economic loss, making allowance for the contingencies I have referred to, is 20% of a most extreme case. That would have yielded an allowance of $24,272.50

Past out of pockets

194. The parties agree that the appropriate figure for this head of loss is $1,569.60.

Future out of pocket expenses

195. Dr Sheehan opined that, in relation to the musculoskeletal system, Ms Southon’s prognosis was poor. She would continue to suffer from her present symptoms. He thought she would have an ongoing need for six weekly visits to a general practitioner, physiotherapy, hydrotherapy and remedial massage and yearly assessments by an orthopaedic surgeon.

196. Dr Fraser regarded that her prognosis was good and did not consider that she required any further treatment for the injuries she sustained on 17 August 2017.

197. On this issue, I prefer Dr Sheehan’s opinion, which accords with my acceptance of the plaintiff’s evidence. Moreover, on the question of rehabilitation needs and treatment requirements, I consider he is more qualified than Dr Fraser.

198. Ms Southon claims a buffer sum of $10,000 (under the common law or under the Act).

199. She pointed to Dr Sheehan’s recommendations in this regard. I agree that Dr Sheehan’s recommendations for treatment are reasonable.

200. Mr Ray submitted that allowance for this award (and also any award for future domestic assistance) would need to factor in a higher than usual level of contingencies, given her age (she is now 56) pre-existing conditions, subsequent exacerbation of injuries since the incident and the limitations upon her capacity to earn which were apparent even before the battery, including qualifications or educational attainment.

201. Mr Ray’s point is well taken even if Ms Southon’s suggested buffer figure is modest to begin with. I would reduce this figure to the sum of $6,000.

Past economic loss

202. In her interview with Constable Angelo, Ms Southon stated that, as at the date of the incident, she had not been working. She indicated that she was in receipt of a benefit. In cross-examination, Ms Southon said that she had received the disability pension since 2008. The initial reason for this was for depression and anxiety. Since the incident however, another reason was physical injury. It was suggested to her that she was obliged to produce records showing the receipt of the benefits. She said she did supply records to her solicitor towards the end of last year.

203. Ms Southon stated in her principal witness statement that prior to the incident, she worked as a casual cleaner, as well as washing dishes and clothes, approximately for 4 hours a week. She estimated that she earnt $100 a week, received directly into her account (with no allowance for holiday pay). She stated that she stopped working (for Mr and Mrs Donnelly) approximately 4 months after the incident due to restrictions arising after her injuries.

204. Ms Southon reported to Dr Fraser her receipt of the social security benefit (for pain and mental health issues) and undertaking of part time work as a cleaner for a friend at the time of the incident; but she had not worked previously since 2007 when working in a supermarket. She also elaborated certain other matters relevant to this head of loss: she had left school at the age of 16. She had no qualifications. She had some employment experience in retail; and had worked as a cleaner and administration officer.

205. Ms Southon was challenged on why she did not disclose to Centrelink the performance of work. She said she did not disclose towards the end. She indicated that she had stopped when she recommenced part-time casual cleaning around 2013 or 2014.

206. She was asked why she did not produce records to prove who had employed her and in what circumstances. She said she had identified names of the people that she had done some cleaning for.

207. Dr Sheehan regarded Ms Southon as being totally and permanently unfit for any form of employment.

208. Ms Southon informed Dr Fraser that she was not working when he examined her in June 2021. Dr Fraser did not regard her as being incapacitated for work as a consequence of the injuries she sustained on 17 August 2017. He considered her fit to return to work as a part time cleaner. It was her pre-existing degenerative changes which rendered her unsuited to heavy manual work, or work requiring the repetitive elevated or overhead use of her right upper arm.

209. Both parties agreed that any allowance for past economic loss would not differ, irrespective of whether it should be assessed under the common law or under the Act.

210. Ms Southon argues for an allowance of $23,400, derived from the loss of $100 per week for 234 weeks.

211. Mr Ray argued that there was an insufficiency of proof in her claim. She did not produce documentation in support; especially in response to a subpoena. She did not call her friend for whom she worked. As to this point, Mr Ray did not rebut Ms Southon’s evidence that she supplied the names of persons she worked for. His Counsel argued that it would be expected that Centrelink would have been informed about the work that she did. In this last respect, the criticism rings hollow in circumstances where it was not put to Ms Southon that she engaged in any illegality or impropriety and Mr Ray did not seek to independently establish illegality or impropriety.

212. I accept that her evidence was not documented. But in a context where I have found that she is a witness of credit, the absence of any demonstrable impropriety on her part, and taking into account the modesty of this claim, it is not fatal to this particular claim that there is absence of documentation. I accept that it is proven on the probabilities. Nevertheless, the award needs to recognise the contribution of the pre-existing injuries and Ms Southon’s subsequent fall in Woolworths in its assessment. Further, I would expect that her capacity to earn as a cleaner would also have been affected, since March 2020 by occasional COVID-19 restrictions applicable in Queensland.

213. Accepting the plaintiff’s calculations but recognising these other matters, allowance is made, therefore, for the sum of $15,210.

Future loss of earning capacity

214. Ms Southon argues that a sum should be awarded by way of buffer in the amount of $40,000. Her Counsel argued that for this head, what is to be compensated is the loss of capacity to earn in the future and, given that the Court would accept her evidence about what she earnt prior to the incident, it was reasonable to proceed on the basis that she would try to exercise the diminished capacity that she had.

215. Mr Ray pointed to her being in receipt of a pension for 13 years and a very limited work history before that. He submitted that any allowance under this head should be modest, and factor in a greater than usual level of discount for contingencies having regard to her pre-existing conditions and unrelated conditions (before and after the subject incident).

216. I accept Mr Ray’s submissions, but that does not lessen the difficulty in deciding the amount to award.

217. I think some further adjustment should be made to Ms Southon’s suggested allowance to deal with the higher than usual contingencies affecting her. I make allowance for the sum of $24,000.

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.

Aggravated damages

224. Aggravated damages are awarded to address injury to the plaintiff’s feelings caused by the defendant’s conduct^[6] .

     6. Lamb v Cotogno (1987) 164 CLR 1 at 8

225. Ms Southon submits that aggravated damages should be awarded to redress the humiliation of being thrown to the ground in her own home and then, when she was on the ground, she submits that the Court should find that he aggravated her hurt and humiliation by statements such as wanting her out of the home and to stop ‘faking it’. She seeks an allowance of $10,000. This claim is (and can) only be advanced under the common law.

226. Mr Ray argues that no aggravated damages should be awarded as he was provoked^[7] .

     7. Fontin v Katapodis (1962) 108 CLR 177

227. I do not accept that he was provoked.

228. I consider that some allowance might have been made for aggravated damages under the general law, but it is very modest. There is a basis for an allowance to reflect the indignity of violence being inflicted upon Ms Southon in her home and the initial taunting of her by Mr Ray that she was ‘faking’ her injury. However, that has to be balanced against the assistance which Mr Ray offered, not that long after the incident, as was acknowledged by Ms Southon which, although it stopped short of an apology, nevertheless had some value in showing Mr Ray’s concern for her. It is not inconceivable that Mr Ray may honestly have initially thought that her injury was less serious than appeared; although this is not to condone his statement. The point, for present purposes, was that the indignity was relatively short-lived and, because of Mr Ray’s subsequent actions, (slightly) redressed.

229. I do not agree with the submission advanced on Ms Southon’s behalf that his conduct in this proceeding should sound partially in an allowance. True it was that he raised a vigorous defence, including putting Ms Southon to proof of virtually all of her allegations. But that is not atypical of the robust approach adopted by defendants in personal injury proceedings in this Court. Further, aggravated damages claims are ordinarily required to be particularised (r 15.8 of the Uniform Civil Procedure Rules 2005 (NSW)). Although the earlier matters I have referred to as justifying the award were not particularised either, the defendant would not have been taken by surprise by the plaintiff advancing them. They were obvious. The defendant took no issue with those matters being relied upon, in the event that any allowance was made. I consider the defendant would fairly be taken by surprise if, without prior notice, the plaintiff sought to rely upon the pleading or conduct of his defence in this proceeding that could be used against him in the manner now suggested. I would make an allowance under this head in the sum of $5,000.

Claim for interest

230. Interest should be awarded on general damages and past economic loss.

Summary on quantum

231. To reiterate, damages are calculated as follows:

General damages	$40,000.00
Interest on general damages (from August 2017)	$8,861.92
Aggravated damages	$5,000.00
Past out of pocket expenses	$1,569.60
Future out of pocket expenses	$6,000.00
Past economic loss	$15,210.00
Interest on past economic loss	$3,369.74
Future loss of earning capacity	$24,000.00
Past domestic assistance	$14,750.00
Future domestic assistance	$45,025.20
Total	$163,786.46

232. The orders of the Court are:

1. Judgment for the plaintiff for the sum of $163,786.46

2. The defendant is to pay the plaintiff’s costs of the proceeding, as agreed or assessed.

3. If either party seeks a variation of the costs order, they should apply to the Court, by notice of motion supported by affidavit, within 14 days. If there be some doubt about my calculations above, the parties have liberty to apply within the same period.

4. Exhibits should be returned within 28 days.

**********

Endnotes

Amendments

24 February 2022 - 24/02/2022 - Inserted Civil Procedure Act 2005 (NSW) in paragraph [229]

24/02/2022 - Removed "aware" and inserted "allowance" in paragraph [229]

25 February 2022 - coversheet - corrected case name

Decision last updated: 25 February 2022