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Morrissey, Neil --- "A Punch 'Off the Ball': Graves v West (No 2) [2015] New South WalesSC" [2015] PrecedentAULA 65; (2015) 130 Precedent 44


A PUNCH ‘OFF THE BALL’

GRAVES V WEST (NO. 2) [2015] NSWSC

By Neil Morrissey

In Graves v West (No. 2), the plaintiff and the defendant were participants in a fourth grade rugby union game at Manly Oval in Sydney. The defendant punched the plaintiff in the face ‘well off the ball’, causing the plaintiff to fall to the ground and rendering him incapable of participating in the game any further. After punching the plaintiff the defendant left the oval and the sports ground. As a result of the violence, the plaintiff suffered serious injuries to his face, mouth and jaw and subsequently contracted post-traumatic stress disorder (PTSD). The plaintiff has not played rugby since the incident.

On 19 December 2011 in the local court at Manly, the defendant pleaded guilty to, and was convicted of, recklessly causing grievous bodily harm to the plaintiff. The magistrate placed him on a two-year good behaviour bond and shortly afterwards the defendant left Australia. At the time of judgment the defendant had not returned.

The plaintiff sued the defendant for damages arising from the assault. In May 2013, proceeding ex parte, Davies J entered summary judgment for the plaintiff pursuant to r13.1 of the Uniform Civil Procedure Rules 2005 (NSW).[1] Thus liability had been determined, and the only issue requiring resolution by Button J was the assessment of damages.

Counsel for the plaintiff applied to have the matter dealt with ex parte because there was no appearance from the defendant. On the basis that the defendant had provided an affidavit to the plaintiff’s solicitor dealing with elements of the plaintiff’s case following Davies J making orders for substituted service to be effected by forwarding documents to the defendant via email and Linked-In ‘In-Mail’ addresses, His Honour was satisfied that the proceedings had been brought to the attention of the defendant and the matter could proceed ex parte. Because the proceedings were ex parte, the plaintiff’s counsel had a special responsibility of candour as well as a responsibility to bring to His Honour’s attention legal and evidential matters that could be adverse to his submissions.

Button J took into account affidavit evidence from various lay and expert witnesses. He also received oral evidence from the plaintiff during the hearing and observed the state of his face from the bench. His Honour accepted the relevant chronology of events that included, inter alia, that at the time of the violence the plaintiff was aged 25 years, for several years before that date he had worked as a commercial property manager and he had completed two degrees at university before leaving Australia to travel as a backpacker in late 2010. The plaintiff had played rugby union since the age of five and the game was a source of enjoyment for him with many of his closest friendships being formed during his association with the North Sydney Rugby Club.

It was accepted that shortly after the assault the plaintiff was taken by ambulance to the Emergency Department at Royal North Shore Hospital and it was clear that he had suffered a broken jaw from the punch. The plaintiff required surgery the following day to insert several mini-screws and elastics in order to stabilise his jaw and to wire it shut. The plaintiff had many more visits to medical practitioners for treatment of his injuries. For a period he was forced to consume food through a straw, resulting in a loss of approximately 10 kg in bodyweight. In addition, the plaintiff had several visits to a psychologist who diagnosed PTSD and expressed the opinion that he was experiencing intrusive symptoms associated with the assault, including recurrent dreams and intense psychological distress from the resultant media coverage and public exposure. The plaintiff had two weeks off work due to his injuries and treatment. All of this time was covered by sick leave. While on sick leave he was cared for by his sister without charge.

In respect of his present and future condition, His Honour accepted that the plaintiff continued to feel an altered sensation in his mouth and observed that he had a slightly sunken right cheekbone. It was also accepted that he would require further dental treatment in the future as a result of his injuries.

A key issue for determination was whether the Civil Liability Act 2002 (NSW) applied to the proceedings. Relevantly, s3B(1)(a) established that, with some limited exceptions, the provisions of the Act did not apply to, or in respect of, civil liability of a person ‘in respect of an intentional act that is done by the person with the intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person’.

Button J held that when taking into account the combined effect of the defendant’s plea of guilty to recklessly causing grievous bodily harm, the judgment of Davies J, the documentary evidence of the plaintiff and a friend and the extensive injuries themselves established beyond the balance of probabilities that the punch to the face was an intentional tort committed with an intent on the part of the defendant to cause injury to the plaintiff. It followed that s3B applied, with the result that the Act did not apply except for the enumerated sections and parts. His Honour found that the enumerated sections and parts had no application to the case and, accordingly, the claim was to be determined in accordance with the common law of damages.

In assessing the plaintiff’s general damages Button J observed that under common law principles, general damages were ‘at large’. He was guided by a statement of Fullager J in Paff v Speed[2] to this effect which he accepted contained a correct statement of the general principles requiring consideration in a general damages claim. His Honour found the plaintiff to be ‘thoroughly credible in the witness box’ and was of the view that his concessions that not every procedure to which he was subject was very painful, supported his credibility about those that were.

After taking into account his findings that the plaintiff suffered serious physical injuries which were inflicted publicly and caused him a great deal of pain and discomfort as well as subsequent PTSD, the indignity of the publicity of the matter, a fear of dental procedures, a permanent distracting sensation with regard to his mouth and a very slight deformation of his appearance, His Honour accepted that there must be a substantial sum for general damages. General damages were assessed at $75,000 which was apportioned so that two thirds ($50,000) related to the period up until judgment and one third ($25,000) for the future. The plaintiff was awarded interest from the date of the punch at a rate of 2% on the sum of $50,000.

Button J accepted that the past out-of-pocket expenses claimed by the plaintiff were incurred as a result of the intentional tort committed against him and awarded $17,973.21 as claimed plus interest.

In respect of the plaintiff’s past gratuitous assistance claim, His Honour found it was well established that a very common consequence of traumatic injury is that the injured person may require assistance with regard to the activities of daily life and such services are frequently provided by family members without charge. His Honour was guided by the High Court’s statement in Griffiths v Kerkemeyer[3] that the cost of services provided gratuitously may be recovered as personal injury damages. Reference was also made to the High Court’s statement in Van Gervan v Fenton[4] that damages for such gratuitous assistance are assessed with reference to the cost of having that service provided commercially. Taking all factors into account, His Honour awarded the plaintiff $1,360 as claimed for past gratuitous services plus interest.

The plaintiff made a claim for aggravated damages which it was submitted by his counsel was appropriate to address the insult, embarrassment and humiliation that he had suffered. While Button J accepted that there was force in all of the arguments advanced by the plaintiff’s counsel in support of this head, because he had taken these factors into account in his assessment of general damages, no separate award was made for aggravated damages.

A claim was also made for exemplary damages on the basis that it would be appropriate to punish the defendant for his anti-social behaviour, and to deter him from committing similar conduct again. His Honour accepted that exemplary damages are denunciatory or punitive in character, and are concerned primarily with the conduct of the defendant. Reference was made to the High Court’s statement in Uren v John Fairfax & Sons Pty Ltd[5] that in order for such an award to be made, the defendant’s conduct must amount to or exhibit ‘a conscious and contumelious disregard for the plaintiff’s rights’. Taking into account that the defendant had left Australia shortly after having a good behaviour bond placed on him pursuant to s9 of the Crimes (Sentencing Procedure) Act 1999 (NSW), Button J held that it was appropriate to award exemplary damages and made an award of $4,000 for this head.

In assessing the plaintiff’s future economic loss claim, His Honour held that the likelihood of him losing earnings in the future as a result of his vulnerability to a further episode of PTSD, or his vulnerability to dental and jaw problems was very low. Nonetheless, after taking into account his age and the possibility of problems in the future, a ‘buffer’ of $30,000 was awarded for future economic loss.

Future out-of-pocket expenses were assessed in the sum of $33,142 to allow for the possibility of the plaintiff requiring further treatment.

Judgment was entered for the plaintiff against the defendant in the total sum of $168,084.21 and the defendant was ordered to pay the costs of the plaintiff of the proceedings relating to the determination of damages.

Neil Morrissey is a barrister at Albert Wolff Chambers, Perth. PHONE (08) 9221 1544 EMAIL neil.morrissey@bigpond.com.


[1] See Graves v West [2013] NSWSC 641).

[2] [1961] HCA 14; 105 CLR 549 at 559.

[3] [1977] HCA 45; 139 CLR 161.

[4] [1992] HCA 54; 175 CLR 327 at 331.

[5] [1966] HCA 40; 117 CLR 118 at 129.


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