Assaulted playing the pokies: Sections 52 and 53 of the CLA and exemplary damages

Background

The appellant and the respondent were involved in an altercation at the Parramatta Leagues Club. The appellant was criminally charged for the assault, pleaded guilty and was given a good behaviour bond. The respondent sued the appellant seeking damages for assault.

At the trial, the appellant denied that he had struck the respondent and pleaded s 52 of the Civil Liability Act 2002 (NSW) (CLA) in the alternative. The appellant also pleaded that any award of damages ought to be limited by the operation of s 53 of the CLA.

The trial judge held that the appellant had:

1. assaulted the respondent;
   
   
2. acted in defence of his wife so as to be entitled to the statutory defence under s 52 of the CLA; and
   
   
3. used excessive force.
   
   

As self-defence was not made out, s 53 of the CLA did not apply so as to limit any damages award. The award of damages included general damages in the sum of $100,000, exemplary damages in the sum of $10,000 and awards for past domestic assistance in the sum of $40,824 and future domestic assistance in the sum of $20,594.

Issues for determination on appeal

The issues for determination on appeal included:

1. Was the respondent entitled to damages at all and, if so, should the damages have been limited pursuant to s 53 of the CLA; and
   
   
2. Was the award of exemplary damages properly made.

Sections 52 and 53 CLA

Beazley J, with whom Ward and Harrison JJ agreed, found that a person is only entitled to the protection of the defence under s 52 of the CLA if the conduct to which the person was responding was unlawful. “Unlawful” within s 52 includes tortious conduct: State of New South Wales v McMaster [2015] NSWCA 228 at [200]-[204]. The appellant contended that the respondent’s approach towards him and his wife as they sat playing the poker machines was sufficiently confronting, threatening and intimidatory to raise an expectation in them of physical contact such that the respondent’s conduct was unlawful. After considering the evidence, Beazley J found that although the respondent remonstrated with the appellant, there was nothing in the manner of the remonstration that would have caused the appellant or his wife to fear that physically threatened, let alone imminent. Accordingly, Beazley J found that the appellant was not acting within the meaning of s 52 of the CLA and that section 53 of the CLA did not apply.

Exemplary damages

At first instance the trial judge observed that exemplary damages were awarded as a form of punishment, to deter repetition of reprehensible conduct by a defendant or others, or to act as a mark of the court’s disapproval of impugned conduct. The usual rule is that when a person has been the subject of a criminal penalty in respect of the conduct that was the subject of the claim, it is not appropriate to award exemplary damages because the criminal conviction and sentence imposed have adequately dealt with the elements of punishment and deterrence which are integral to an award of exemplary damages: see Gray v Motor Accidents Commission [1998] HCA 70; 196 CLR 1 at [46]; Tilden v Gregg [2015] NSWCA 164 at [66].

Beazley J considered in detail the principles governing the award of exemplary damages and concluded that the position in Australia is that exemplary damages may not be awarded where substantial criminal punishment has been imposed. However, the High Court in Gray did not preclude an award of exemplary damages where something other than substantial punishment was imposed and, in accordance with the authorities in this court, exemplary damages may be awarded in some circumstances notwithstanding that a criminal sanction has been imposed. Beazley J turned her mind to whether the imposition of the good behaviour bond on the appellant was a substantial penalty, and found that it was. Beazley J then considered the appellant’s conduct of the litigation, and found that the appellant’s conduct in denying the assault and swearing a defence that he had only pleaded guilty “for convenience” demonstrated a continuing contumelious disregard for the respondent’s rights, not only to be able to engage in social activities without being subjected to the serious assault that was inflicted upon him, but also by the continuing conduct in denying that same conduct and requiring the respondent to engage in a seven day trial to vindicate his civil right to damages. In short, Beazley J considered that the manner in which the appellant contested the proceedings was a continued display of a disregard for the respondent’s interests, in circumstances where the CCTV footage made his denial of the assault and its intensity and his claim of unlawful conduct by the respondent untenable. Accordingly, the award for exemplary damages was upheld.

Implications

The application of sections 52 and 53 of the CLA will depend upon the factual matrix of a matter. It is important to consider the evidence to be called in support of sections 52 and 53 of the CLA to ensure that the elements of the defence can be made out.

Beazley J provides a detailed summary of the law of exemplary damages. It is important to remember that:

1. exemplary damages may not be awarded where substantial criminal punishment has been imposed; and
   
   
2. the conduct of litigation, which displays a continued display of a disregard for the respondent’s interests, can ground an award for exemplary damages.