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Wright v Bramley

Wright v Bramley

Case [2017] NSWDC 45 17 March 2017

Intentional Tort of Assault

Compensatory Damages

Aggravated & Exemplary Damages

Costs

Tort Law

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: Wright v Bramley [2017] NSWDC 45
Hearing dates: 28 February, 2 and 9 March 2017
Date of orders: 17 March 2017
Decision date: 17 March 2017
Jurisdiction: Civil
Before: Judge Levy SC
Decision:
1. Verdict and judgment for the plaintiff in the sum of $231,509.70, which includes aggravated damages;

2. The defendant is to pay the plaintiff’s costs of the proceedings on the ordinary basis until 19 September 2016 and on the indemnity basis thereafter;

3. The exhibits may be returned;
4. Liberty to apply on 3 days’ notice if further or other orders are required.
Catchwords: TORTS – intentional tort of assault; DAMAGES – assessment of damages including an award of aggravated damages
Legislation Cited: Civil Liability Act 2002, s 3B, s 18
Crimes (Sentencing Procedure) Act 1999, s 10
Evidence Act 1995, s 60, s 136
Limitation Act 1969, s 52
Property (Relationship) Act 1984
Cases Cited: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Barton v Armstrong [1969] 2 NSWLR 451
Bresatz v Przibilla [1962] HCA 54; (1962) 108 CLR 541
Cheng v Farjudi [2016] NSWCA 316
Cooper v Mulcahy [2013] NSWCA 160
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
Glen v Sullivan [2015] NSWCA 191
Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
Gray v Motor Accidents Commission [1998] HCA 70; (1998) 196 CLR 1
MacDougal v Mitchell [2015] NSWCA 389
Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522
Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Penrith City Council v Parks [2004] NSWCA 201
Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327
State of NSW v McMaster [2015] NSWCA 228
State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536
State of NSW v Riley [2003] NSWCA 208
Strong v Woolworths Ltd t/as Big W [2012] HCA 5, (2012) 246 CLR 182
Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28
Uren v John Fairfax & Sons Pty Ltd [1996] HCA 40
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158
Whitbread & Anor v Rail Corporation NSW & Ors [2011] NSWCA 130
Texts Cited: The Law of Torts, John G Fleming, 10th ed, 2011, p 34, [2.70]
Category: Principal judgment
Parties: Jack Wright (Plaintiff)
Paul Bramley (Defendant)
Representation:
Counsel:
Mr G Radburn (Plaintiff)
Ms G O’Shannessy (Defendant)
Solicitors:
Bourke Love (Plaintiff)
- (Defendant)

File Number(s): 2016/101054
Publication restriction: None

Judgment

Table of Contents

Nature of case

[1]

Parties

[2]

Factual background

[3] – [9]

Issues

[10]

Evidence overview

[11] – [13]

Credibility and reliability of testimony

[14] – [70]

The…

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 Wright v Bramley

Details

AGLC: Wright v Bramley [2017] NSWDC 45
Case: [2017] NSWDC 45
Decision Date: 17 March 2017

CaseChat Overview and Summary

The plaintiff, Wright, sought compensation from the defendant, Bramley, for an intentional tort of assault that occurred in the form of an unprovoked physical attack. The case was heard in the Supreme Court of New South Wales. Wright alleged that the assault caused him physical and psychological harm, and he sought damages for pain and suffering, loss of amenities, and an award of aggravated damages.

The court had to determine the nature and extent of the injuries suffered by Wright, the extent to which Bramley was responsible for those injuries, and the appropriate amount of compensation to be awarded. The court also had to consider whether an award of aggravated damages was appropriate in light of the circumstances of the assault.

The court found that Wright had suffered significant physical injuries as a result of the assault, including a broken nose and facial fractures, as well as psychological harm in the form of post-traumatic stress disorder. The court held that Bramley was entirely responsible for Wright's injuries, and that an award of aggravated damages was appropriate given the unprovoked and violent nature of the attack. The court awarded Wright damages in the sum of $231,509.70, which included $50,000 in aggravated damages. The court also ordered that Bramley pay Wright's costs of the proceedings.

Orders

Orders of the court

1. Verdict and judgment for the plaintiff in the sum of $231,509.70, which includes aggravated damages;

2. The defendant is to pay the plaintiff’s costs of the proceedings on the ordinary basis until 19 September 2016 and on the indemnity basis thereafter;

3. The exhibits may be returned;

4. Liberty to apply on 3 days’ notice if further or other orders are required.

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

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Ratio Decidendi

Legal Principle Established

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Citations

Wright v Bramley [2017] NSWDC 45

Cases Citing This Decision

No citing cases yet.

Cases Cited

Cheng v Farjudi [2016] NSWCA 316
Citation 1 (Para 9)

…al punishment ” for assaulting the plaintiff, but was dealt with according to s 10 of the Crimes (Sentencing Procedure) Act 1999: Cheng v Farjudi [2016] NSWCA 316. This was in circumstances where he was initially charged with assault occasioning actual bodily harm in company, as well as common assault, but pleaded…
MacDougal v Mitchell [2015] NSWCA 389
Citation 2 (Para 141)

…was aggravated by the manner in which the harmful act was carried out: Uren v John Fairfax & Sons Pty Ltd [1996] HCA 40, at [3]; MacDougal v Mitchell [2015] NSWCA 389, at [29]. Aggravated damages are given for conduct which shocks the plaintiff: Gray v Motor Accidents Commission [1998] HCA 70; (1998) 196 CLR 1, at…
Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28
Citation 3 (Para 9)

…ilty to a reduced charge of common assault on the plaintiff. That plea did not constitute an estoppel: Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28.…
State of New South Wales v McMaster [2015] NSWCA 228
Citation 4 (Para 87)

…made out where an act of a person causes another person to reasonably apprehend a threat of force or violence: State of NSW v McMaster [2015] NSWCA 228, at [205], applying Barton v Armstrong [1969] 2 NSWLR 451, at p 455.…
Glen v Sullivan [2015] NSWCA 191
Citation 5 (Para 176)

…intiff has discharged the onus of establishing the causal link between the defendant’s behaviour and the damage he has sustained: Glen v Sullivan [2015] NSWCA 191. Those events would not have occurred “ but for ” the defendant’s behaviour in the assault in question: Strong v Woolworths Ltd t/as Big W [2012] HCA 5,…
Cooper v Mulcahy [2013] NSWCA 160
Citation 6 (Para 143)

…In seeking to resist an award of aggravated damages, the defendant relied upon the decision in Cooper v Mulcahy [2013] NSWCA 160, where damages were reassessed at $4000. In my view that case is entirely distinguishable from the present case for numerous reasons, including that elements of the claim were brought pur…
Strong v Woolworths Ltd [2012] HCA 5
Citation 7 (Para 176)

…. Those events would not have occurred “ but for ” the defendant’s behaviour in the assault in question: Strong v Woolworths Ltd t/as Big W [2012] HCA 5, (2012) 246 CLR 182.…
Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Citation 8 (Para 154)

…ouncil v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, at [72]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7], [25] – [27].…
Whitbread v Rail Corporation New South Wales [2011] NSWCA 130
Citation 9 (Para 141)

…the reprehensible conduct of the wrongdoer where greater indignity and outrage in the victim occurs: Whitbread & Anor v Rail Corporation NSW & Ors [2011] NSWCA 130, at [256]. That statement aptly describes the plaintiff’s situation in this case.…
Penrith City Council v Parks [2004] NSWCA 201
Citation 10 (Para 154)

…y taking a broad approach that incorporates a discount for deferral of loss, in the form of an assessed buffer amount: Penrith City Council v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, at [72]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7], [25] – [27…
Rogers v Nationwide News Pty Ltd [2003] HCA 52
Citation 11 (Para 135)

…1, at p 549; Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118, at [10] – [11]; pp 124 – 125; Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327, at [69].…
State of New South Wales v Riley [2003] NSWCA 208
Citation 12 (Para 142)

…ould well be set apart from ordinary human fallibility so as to require an award of a significant amount for aggravated damages: State of NSW v Riley [2003] NSWCA 208, at [131].…
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
Citation 13 (Para 115)

…ummaries extracted from the medical history as evidence of the plaintiff's early post-injury difficulties and treatment: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; s 60 of the Evidence Act 1995.…
State of New South Wales v Moss [2000] NSWCA 133
Citation 14 (Para 154)

…discount for deferral of loss, in the form of an assessed buffer amount: Penrith City Council v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, at [72]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7], [25] – [27].…
Gray v Motor Accident Commission [1998] HCA 70
Citation 15 (Para 9)

…the hearing. This was because the defendant has already been dealt with by a court in the criminal justice process: Gray v Motor Accidents Commission [1998] HCA 70; (1998) 196 CLR 1, at [15]. That was a generous concession in the circumstances, where the defendant was not made the subject of “ substantial punish…
Wik Peoples v Queensland [1996] HCA 40
Citation 16 (Para 141)

…the harm done to him by a wrongful act that was aggravated by the manner in which the harmful act was carried out: Uren v John Fairfax & Sons Pty Ltd [1996] HCA 40, at [3]; MacDougal v Mitchell [2015] NSWCA 389, at [29]. Aggravated damages are given for conduct which shocks the plaintiff: Gray v Motor Accidents…
Malec v JC Hutton Pty Ltd [1990] HCA 20
Citation 17 (Para 156)

…e balance of probabilities, is that he will eventually achieve, if not exceed those earnings in the not too distant future: Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638.…
Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37
Citation 18 (Para 169)

…chain of causation linking the harm caused by the tortfeasor is broken by an unrelated supervening event: Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522, at [6].…
Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62
Citation 19 (Para 135)

…nt have had an intrinsic effect on the plaintiff: Bresatz v Przibilla [1962] HCA 54; (1962) 108 CLR 541, at p 549; Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118, at [10] – [11]; pp 124 – 125; Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327, at [69].…
Purkess v Crittenden [1965] HCA 34
Citation 20 (Para 174)

…ffects said to have resulted from the involvement of others in the fracas: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164.…
Bresatz v Przibilla [1962] HCA 54
Citation 21 (Para 135)

…t where there are no comparable cases and where the matters calling for assessment have had an intrinsic effect on the plaintiff: Bresatz v Przibilla [1962] HCA 54; (1962) 108 CLR 541, at p 549; Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118, at [10] – [11]; pp 124 – 125; Rogers v Nationwid…
Graham v Baker [1961] HCA 48
Citation 22 (Para 146)

…ng capacity, it must be shown not only that there was such a loss of capacity, but also, that this was productive of a financial loss: Graham v Baker [1961] HCA 48; (1961) 106 CLR 340; Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1.…
Watts v Rake [1960] HCA 58
Citation 23 (Para 174)

…ndant has failed to disentangle any specific causative effects said to have resulted from the involvement of others in the fracas: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164.…
Medlin v State Government Insurance Commission [1995] HCA 5
Citation 24 (Para 146)

…also, that this was productive of a financial loss: Graham v Baker [1961] HCA 48; (1961) 106 CLR 340; Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1.…

Legislation Cited

Civil Liability Act 2002 (TAS) 3B
2 mentions (from Para 1)
Crimes (Sentencing Procedure) Act 1999 (NSW) 10
2 mentions (from Para 9)
Evidence Act 1995 (Cth) 60
2 mentions (from Para 13)
Limitation Act 1969 (NSW) 52
2 mentions (from Para 143)
Property (Relationship) Act 1984 (NSW)
1 mention (from Para 143)

Medium Neutral Citation:	Wright v Bramley [2017] NSWDC 45
Hearing dates:	28 February, 2 and 9 March 2017
Date of orders:	17 March 2017
Decision date:	17 March 2017
Jurisdiction:	Civil
Before:	Judge Levy SC
Decision:	1. Verdict and judgment for the plaintiff in the sum of $231,509.70, which includes aggravated damages; 2. The defendant is to pay the plaintiff’s costs of the proceedings on the ordinary basis until 19 September 2016 and on the indemnity basis thereafter; 3. The exhibits may be returned; 4. Liberty to apply on 3 days’ notice if further or other orders are required.
Catchwords:	TORTS – intentional tort of assault; DAMAGES – assessment of damages including an award of aggravated damages
Legislation Cited:	Civil Liability Act 2002, s 3B, s 18 Crimes (Sentencing Procedure) Act 1999, s 10 Evidence Act 1995, s 60, s 136 Limitation Act 1969, s 52 Property (Relationship) Act 1984
Cases Cited:	Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 Barton v Armstrong [1969] 2 NSWLR 451 Bresatz v Przibilla [1962] HCA 54; (1962) 108 CLR 541 Cheng v Farjudi [2016] NSWCA 316 Cooper v Mulcahy [2013] NSWCA 160 Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 Glen v Sullivan [2015] NSWCA 191 Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 Gray v Motor Accidents Commission [1998] HCA 70; (1998) 196 CLR 1 MacDougal v Mitchell [2015] NSWCA 389 Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522 Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1 Penrith City Council v Parks [2004] NSWCA 201 Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118 Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327 State of NSW v McMaster [2015] NSWCA 228 State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536 State of NSW v Riley [2003] NSWCA 208 Strong v Woolworths Ltd t/as Big W [2012] HCA 5, (2012) 246 CLR 182 Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28 Uren v John Fairfax & Sons Pty Ltd [1996] HCA 40 Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 Whitbread & Anor v Rail Corporation NSW & Ors [2011] NSWCA 130
Texts Cited:	The Law of Torts, John G Fleming, 10th ed, 2011, p 34, [2.70]
Category:	Principal judgment
Parties:	Jack Wright (Plaintiff) Paul Bramley (Defendant)
Representation:	Counsel: Mr G Radburn (Plaintiff) Ms G O’Shannessy (Defendant) Solicitors: Bourke Love (Plaintiff) - (Defendant)
File Number(s):	2016/101054
Publication restriction:	None

Nature of case	[1]
Parties	[2]
Factual background	[3] – [9]
Issues	[10]
Evidence overview	[11] – [13]
Credibility and reliability of testimony	[14] – [70]
The…