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Southon v Ray

Southon v Ray

Case [2022] NSWDC 32 24 February 2022

Aggravated & Exemplary Damages

Tort Law

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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

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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Southon v Ray

Details

AGLC: Southon v Ray [2022] NSWDC 32
Case: [2022] NSWDC 32
Decision Date: 24 February 2022

CaseChat Overview and Summary

The plaintiff, Southon, brought an action against the defendant, Ray, in the Supreme Court of New South Wales, alleging assault and battery during their domestic relationship. Southon claimed that Ray pushed her in a lounge room, causing her to fall and injure her head on a nearby coffee table. The case involved two primary legal issues: whether Ray had a valid defence of self-defence and the appropriate framework for assessing damages, including the relevance of Southon's pre-existing physical injuries and mental health issues. The court also considered whether the Civil Liability Act 2002 (NSW) applied to the case, particularly in light of section 3B(1) of the Act.

The court examined whether Ray's actions were justified as self-defence under common law or under the provisions of Part 7 of the Civil Liability Act 2002 (NSW). The analysis included determining whether Ray had the intent to cause injury as defined by section 3B(1) of the Act. The court also assessed whether the operation of the Civil Liability Act was excluded by this section, which would mean reverting to common law principles. Additionally, the court had to decide whether aggravated damages should be awarded, considering Southon's pre-existing physical injuries and mental health issues, and the impact of these factors on the overall assessment of damages under the Civil Liability Act 2002.

In its reasoning, the court found that Ray's actions did not constitute self-defence under either common law or the Civil Liability Act 2002. The court held that Ray did not have a genuine belief that Southon posed an imminent threat, which is necessary for self-defence. Regarding damages, the court determined that the Civil Liability Act 2002 applied and that section 3B(1) did not exclude its operation. The court also considered the significance of Southon's pre-existing conditions but concluded that they did not warrant the award of aggravated damages. The court awarded Southon damages for her injuries, taking into account all relevant factors under the Act.

The final orders of the court were detailed in paragraph 232, where the court awarded Southon damages for her injuries sustained during the incident, calculated in accordance with the Civil Liability Act 2002. The court did not award aggravated damages, considering the circumstances of the case and the existing health conditions of the plaintiff. The court also dismissed Ray's defence of self-defence and held that the Act applied to the case without exclusion under section 3B(1).

Orders

Orders of the court

See paragraph 232

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Southon v Ray [2022] NSWDC 32

Most Recent Citation

McCabe v Riechelmann [2023] NSWDC 44

Cases citing this decision · 2 of 2 shown

McCabe v Riechelmann
[2023] NSWDC 44

…NSWCA 267 Saravinovska v Saravinovski (No 6) [2016] NSWSC 964 Slaveski v State of Victoria [2010] VSC 441 Southon v Ray [2022] NSWDC 32 State of New South Wales v Abed [2014] NSWCA 419 State of New South Wales v Ibbett (2005) 65 NSWLR 168; [2005] NSWCA 445. State of New South Wales v McMaster [2015] NSWCA 228; (20…
Ray v Southon
[2022] NSWCA 267 Para 3

…2020. On 24 February 2022, his Honour Abadee DCJ found in the respondent’s favour, and awarded her damages in the sum of $163,786.46: Southon v Ray [2022] NSWDC 32.…

View all 2 citing cases →

Cases cited in this decision · 11 of 11 shown

Joldzic (bht Joldzic) v Patrick
[2021] NSWDC 55 Para 187

…d 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 foll…
Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc
[2020] NSWCA 294 Para 98

…er 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.…
James v James (No. 3)
[2020] NSWDC 797 Para 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…
Croucher v Cachia
[2016] NSWCA 132 Para 79

…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 defe…
State of New South Wales v McMaster
[2015] NSWCA 228 Para 77

…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].…
Cooper v Mulcahy
[2013] NSWCA 160 Para 191

…ss 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.…
Tabet v Gett
[2010] HCA 12 Para 154

…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:…
Giller v Procopets (No 2)
[2009] VSCA 72 Para 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…
Giller v Procopets
[2008] VSCA 236 Para 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 o…
Lamb v Cotogno
[1987] HCA 47 Para 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…
Fontin v Katapodis
[1962] HCA 63 Para 226

…Mr Ray argues that no aggravated damages should be awarded as he was provoked [7] . 7. Fontin v Katapodis (1962) 108 CLR 177…

Legislation cited in this decision · 3

Civil Liability Act 2002 (TAS)
3A, 3B, 3B(1), 52, 53, 54 7 mentions (from Para 3)
Evidence Act 1995 (Cth)
140 2 mentions (from Para 91)
Uniform Civil Procedure Rules 2005 (NSW)
1 mention (from Para 229)

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