Trevitt v NSW TAFE Commission & Anor (formerly [2001] NSWCA 348 now deleted)

The New South Wales Court of Appeal considered an appeal by the plaintiff, Mr Trevitt, against the decision of the primary judge who had dismissed his claim for assault and battery against the NSW TAFE Commission and another party. Mr Trevitt had alleged he was subjected to unlawful physical contact.

The central legal issues before the Court of Appeal were whether the primary judge erred in failing to find that a battery had occurred, despite the plaintiff's claim being framed as an assault, and whether damages for distress suffered by the plaintiff, arising from his vulnerable personality, should have been awarded. The Court also had to determine the appropriate costs order, given the plaintiff's initial lack of success and subsequent partial success on appeal.

The Court of Appeal, in its reasoning, focused on the distinction between assault and battery and the requirements for establishing each tort. It examined the evidence presented to determine if the elements of battery, namely the intentional application of force to another person without lawful justification, had been proven. The Court also considered the principles governing the award of damages for distress, particularly in the context of a plaintiff's pre-existing vulnerabilities, and whether such distress was a foreseeable consequence of the alleged tortious conduct. The Court ultimately found that a battery had occurred and that the plaintiff was entitled to damages.