Bradley v Young [2019] NSWDC 857

District Court New South Wales

Medium Neutral Citation: Bradley v Young [2019] NSWDC 857 Hearing dates: 18 November 2019 Date of orders: 18 November 2019 Decision date: 18 November 2019 Jurisdiction: Civil Before: Neilson DCJ Decision: Verdict and judgment for the plaintiff against the defendant for $19,270.85. Defendant pay the plaintiff's costs. Catchwords: TORTS.

Assault – Battery – False imprisonment – Whether injuries caused by deliberate acts done with intent to cause injury. Legislation Cited: Civil Liability Act (2002) Crimes (Sentencing Procedure) Act 1999 Category: Principal judgment Parties: Nia Michelle Bradley – Plaintiff David Young – Defendant Representation: Woodbury – Plaintiff In person – Defendant File Number(s): 2018/00140395

Judgement 1. HIS HONOUR: The plaintiff, Nia Michelle Bradley, brings an action for damages for, amongst other things, injuries which she says she received when she was assaulted and battered by the defendant on 8 June 2014 at the Amble Inn at Corindi Beach in northern New South Wales. She also alleges that for a relatively short period of time she was falsely imprisoned by the defendant. The circumstances of this claim arise from what can be broadly described as "domestic violence", albeit that there is a dispute as to the nature of the relationship between the plaintiff and the defendant. 2. The defendant's evidence on this issue I found more acceptable than the evidence of the plaintiff. The defendant says that they had known each other for about four years. The plaintiff and the defendant were neighbours, they both lived in an area that used to be called Lanitza and is now known as Wells Crossing. They became friends and were in a relationship that was described by the defendant as, "on and off," a relationship that at times when It was "on" was intimate. The defendant gave evidence, which I accept, that he tried to assist the plaintiff and he said that he had built for her a wall at her property, he had installed a vanity unit, obviously in her bathroom, and he had installed a septic tank as well. 3. The defendant said that a few days before the visit to the Amble Inn at Corindi Beach on 8 June 2014 he had in jest told the plaintiff that he was breaking off his relationship with her, but there may have been more truth in that allegation than jest. In any event, on 8 June 2014 the defendant had staying with him his daughter and his daughter's boyfriend. The daughter is Joanne and her boyfriend is Adam. They decided to go from Wells Crossing to the Amble Inn at Corindi Beach for dinner. Joanne decided to invite the plaintiff. She drove up to the plaintiff's home and passed on the invitation. The plaintiff then drove her vehicle to the defendant's residence. One thing that is not disputed is that both the plaintiff and the defendant as well as Joanne and Adam drove in the plaintiff's car to the Amble Inn. The driver, however, was not the plaintiff but the defendant. The defendant's evidence is that the plaintiff, when she arrived at his residence, was intoxicated. The plaintiff denies that and says that at the defendant's residence she had two stubbies of beer or perhaps even smaller, they may have been twist tops and then she went with the group to the Amble Inn. 4. There appears to be little dispute that on the journey to the Amble Inn, the defendant stopped the car at the truck stop service station near Halfway Creek and filled the car up with petrol at his own expense. The car was then driven to the Amble Inn where it was parked in the car park. According to the defendant, the plaintiff got out of the car quickly and rushed into the beer garden where she sat at a table and talked with a gentleman who, it transpires, was the chef at the hotel and who was about to take up his work cooking evening meals ordered at the bar. The defendant did not know that gentleman. It appears to be common ground that Joanne and Adam went into the beer garden and sat at a different table to that occupied by the plaintiff and the chef. According to exhibit C, the amended fact sheet used in the Local Court, the tables occupied by the plaintiff and the chef and by Joanne and Adam were beside each other. 5. When the defendant entered, he asked Joanne and Adam what they would like to drink and he then went to the bar and purchased beers for himself and the plaintiff and also drinks for Joanne and Adam. The defendant bought a schooner of beer for himself and a schooner of beer for the plaintiff. The plaintiff said that when the defendant placed the schooner of beer in front of her, she told him that she did not wish to drink the beer and obtained a response from the defendant to the effect that he himself would drink the beer that she did not want. The chef then left the table occupied by the plaintiff and went to his work in the hotel. 6. The plaintiff, according to the defendant, then asked for her keys back as she wished to take her car and drive home. The plaintiff said that she was perturbed that the defendant and his daughter his and daughter's boyfriend had not joined her at her table. The defendant says that the plaintiff was in an odd or sour mood and she wished to leave straightaway even though the group had only been at the Inn for some five minutes. The plaintiff asked the defendant to give her the keys to her car. He refused to do so on the grounds that she was intoxicated, too intoxicated to drive the vehicle. 7. There was then an oral altercation between the two as they were walking in the direction of the car. The plaintiff told me that the defendant said to her, "You're just like Margaret," which meant nothing to her. It appears to me to be unlikely that the defendant would say something like that to her unless, because of previous interaction and their previous relationship the plaintiff knew who Margaret was. It may have been a former wife or former girlfriend. The plaintiff then told me that as they were right at the front of the car, she felt a blow on the top of her head. Her legs went from underneath her. She tried to get hold of the driver's door side mirror on her vehicle which was a Maverick four wheel drive. However, she could not reach that and she fell down again onto the bitumen surface of the car park. According to the plaintiff, the defendant immediately pulled her up by her hair. That was done a number of times as I understand her evidence. The plaintiff said that she was then dragged by her hair from the driver's door of the vehicle to the back of the vehicle, which is a station wagon, by the defendant. However, she was still on her feet. She then said that the defendant punched her both repeatedly and repetitively. She did not try to keep count of the number of blows which he struck her but she reiterated that they were repetitive blows and that they were frequent. She then told me that she collapsed onto the ground. She then said that she was holding her hair between her hands over her head but the defendant lifted her up by the hair and punched her on her left side. Again, the plaintiff fell over. He picked her up again and threw her into the vehicle, onto its back seat. 8. The plaintiff then said that the defendant entered the vehicle and sat in the driver's seat with the door open. She said that he was yelling in the direction of his daughter calling her to get into the car because they were going to leave. The plaintiff said that she tried to get the keys out of the ignition by reaching through between the front seats of the vehicle to grab the keys. When he prevented her doing so, she got out of the vehicle and went into the hotel and asked someone there to call the police. That was done. The defendant according to the plaintiff then left with his daughter and son-in-law in a cab going back to the defendant's residence. 9. The police arrived and the plaintiff spoke with a member of the New South Wales constabulary whose rank I take from the police fact sheet was Senior Constable Paul Matts of the Woolgoolga Police Station. He asked her to make a statement but he did not take one from her there. Instead, he asked her to go to the police station within a relatively short period of time in order to make a statement. She said that there were a number of other police officers present but she could not remember how many came. She told me that an ambulance came and the ambulance officers told her that she would be "fine." The plaintiff told me that she had previously worked at the Coffs Harbour Hospital. That was in response to some questions I asked her because the records of the Grafton Base Hospital where the plaintiff attended on the following day contain this history; "Assault last night, police and ambulance attended - patient refused to go to Coffs as ex-employee, agreed to present to Grafton Base Hospital." A refusal to go to Coffs Harbour Hospital indicated to me that the ambulance personnel thought that she ought to go to Coffs Harbour Hospital otherwise there was no need to record a refusal. However, the plaintiff maintained that the ambulance officers said that she would be "fine" and did not try to persuade her to go to the Coffs Harbour Hospital. She said that she had a reason for not going there because a relative of the defendant worked there. That, it appears, was the sister-in-law of the defendant. 1. Despite her injuries and despite the fact that she would be fine, the plaintiff believed that the police stayed with her for a long period of time, for about six hours. That appears to be an extremely long period of time for the police to stay with her without taking a statement from her. She told me that she got home late in the evening of 8 June 2014. 2. The plaintiff maintains that the major injuries that she received were a black right eye, a cut above her right eyebrow, a blow to her left chest wall from a punch and a loss of area of hair from her scalp which was pulled out by the defendant during the course of the interaction in the assault that I have described. There is no dispute that the plaintiff did go to the Grafton Base Hospital on the following day. The plaintiff's evidence is that on the morning of 9 June she drove to her daughter's house at Coramba where she had a shower and then she drove from Coramba to Grafton, via the inland route, where she attended the hospital. She thought she attended the hospital about noon but the triage notes commence at 1.19pm. The triage nurse, Ms Tiffany Goodern recorded the following findings on examination; "Black right eye with laceration above eyebrow, hair pulled out of right side plus pain to left ribs worse with movement/deep breathing, talking freely." The plaintiff was offered analgesia by Ms Goode but refused, it as she was required to drive back home. 1. The plaintiff was seen by Dr Cornelius van Dorp at 3.53pm. The history which he recorded is consistent with the triage history. On examination he noted a small cut over the right eyebrow, a peri-orbital hematoma around the right eye, a patch of hair missing from the right temple about two centimetres in diameter and tender over the lower left anterior ribs. He noted that there was good air entry bilaterally but full inspiration was restricted by pain. He cleaned the eyebrow laceration and applied steri strips to it and chlorsig ointment was applied. Chlorsig ointment is generally applied to the eye itself as distinct from the areas area around the eye. He prescribed panadol 1 gram as the need arose plus one four times daily as well as ibuprofen, 400 milligrams, five times daily or perhaps ever fifth hour, his abbreviations are not standard. He also ordered two X-rays, one of the left chest wall and the other of the chest itself. The chest X-ray is recorded as showing no abnormality. According to the radiologist, Dr Ian Cappe, there were no left rib fractures seen and there was no pneumothorax. Notwithstanding Dr Cappe's report, Dr Van Dorp indicated that as far as he was concerned, the X-ray of the ribs showed an anterior eighth rib fracture. I accept that to be accurate. Reports of hospital X-rays are often made briefly and quickly and fractures in them can often be overlooked. However, I accept that Dr van Dorp himself looked at the chest X-rays and found the fracture which he identifies in the clinical notes of the hospital which are exhibit A. The last record made at the hospital was that made by Dr van Dorp himself so I assume that the plaintiff was sent home at approximately 4pm on 9 June 2014. 2. The plaintiff has had relatively little treatment since that time. She consulted Dr Chandran Arianayagam, a plastic surgeon, on three occasions. Those occasions were 31 July 2015, 4 July 2017 and 12 October 2017. The cost of the attendances upon the plastic surgeon was $660. Each time the plaintiff went to see the plastic surgeon, she was referred by a different general practitioner. She first consulted Dr Ian Scott at the Park Avenue Medical Centre in Coffs Harbour. For the second referral, she consulted Dr Olga Voloshyna at the Northside Health Clinic in Coffs Harbour. On the third occasion she consulted Dr Miroslava Kon but I do not know to which medical practice Dr Kon belongs. The plaintiff told me that this was for treatment for her cut above the eyebrow which she believed to be unsightly. For the cut above the eyebrow, the plaintiff also obtained a special cream and there are before me accounts to indicate that she obtained tubes of the special cream on eight occasions. The cost of that treatment all for the cut above the right eye was $1,036.85. The plaintiff at the end of the case demonstrated to me the scar left by the cut above her right eyebrow. The scar is not keloid nor is it pigmented in any way. It appears as a fold or crease immediately above the right eye about the length of the eyebrow and is not in itself noticeable unless one looks directly at the plaintiff's face and notices the asymmetry in the lines on her forehead. In other words, there is one extra crease in her forehead immediately above her right eyebrow which is not there on the left hand side. 3. The defendant denies intentionally causing the plaintiff any injury and said that he was merely trying to restrain her, to stop her driving her car because of her intoxication. He says that she was not only intoxicated but behaving in a strange fashion which he thought may have been related to his mention earlier to the plaintiff that he was breaking off their relationship. In essence the defendant says that the relationship between the plaintiff and the defendant had not only been on and off but essentially stormy, riddled by interactions between the two and marked by applications for ADVOs and the use of alcohol. 4. This, like many cases of this nature, is one where it is difficult to know where the truth lies because, in essence, I only have evidence from each party, each party having animosity against the other, each party locked into a legal contest. 5. I accept that the plaintiff did suffer the fracture of her anterior eighth left rib as diagnosed by Dr van Dorp. I also accept that she sustained a peri-orbital hematoma around the right eye or using simple English, a black right eye. I also accept that she suffered a small cut over her right eye brow which has left her with the scar that I have described. 6. One of the problems besetting many cases of this nature is the provision of s 3B(1)(a) of the Civil Liability Act (2002). That commences thus; "(1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows; (a) civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person - the whole Act except ..." The important words to bear in mind are, "an intentional act that is done ... with intent to cause injury." There are some injuries that are suffered in assaults that are not intended, that are accidental. A classic example of that is the policeman who intentionally slammed a door of a police cell not realising that a finger of the prisoner was in the way and as a result of his slamming the door, the finger was severed. He did not intend the sever the finger but he did intend to close the door. 1. Here the defendant says that in reaching to grab the keys from the ignition of her vehicle from when she was in the back seat, the plaintiff reached for the rear vision mirror and pulled it out of its socket. It fell striking her on the head causing the hair loss injury and the cut above her eyebrow. The defendant also says that the plaintiff then smeared the blood from the cut around her right eye in order to pretend that she had a black right eye, that the eye itself had been damaged by a blow struck with a fist. I cannot accept that evidence. The reason for that is the medical evidence: there was no issue that Ms Goode, the registered nurse at the Grafton Base Hospital found a black right eye. It is also clear that Dr Cornelius van Dorp found a peri-orbital hematoma around the right eye. That could not be caused accidentally, it must be caused by a blow such as a punch because that area of the eye is protected by both the eyebrow and the nose. The plaintiff did not attempt to pretend that she had a black eye on the right hand side; she in fact had one. I am afraid that that causes me to reject the evidence of the defendant that the plaintiff pulled the rear vision mirror from its socket causing the injury, inter alia, to her eye. It is also, to me, medically unacceptable that a blunt falling of an implement on the temple would cause a loss of a patch of hair; a patch of hair loss could only be caused by pulling. I therefore accept that the right eye injury and the hair loss were caused, firstly, by a punch thrown by the defendant and also by the pulling, by someone, and the only person it could have been is the defendant, of the plaintiff's hair. Those are intentional injuries. In the circumstances, I am also prepared to accept that the plaintiff received a blow to her left chest wall which fractured her left eighth rib. 2. Having said that however, it appeared to me that the plaintiff's evidence about her injuries and the course of the interaction between her and the defendant was exaggerated. The plaintiff is a petite lady. At the time of the events now in question, the plaintiff was fifty-nine years old. She told me that she may have weighed as much as fifty-four kilos at the time of this event. She now is fifty-two kilos and she may have been anywhere between fifty-two and fifty-four kilos at the time of the event. She is a small lady, thinly built. The defendant is a tall man, well-built and approximately double the weight of the plaintiff as far as I can gauge. Any repeated, frequent punching would have reduced the plaintiff to pulp. Equally, the defendant's pulling her repeatedly by the hair and dragging her by the hair appears to me to be exaggerated. If the defendant did so and if the plaintiff was resisting, much more hair would have been lost than the area identified by Dr van Dorp. 3. Another matter which I need to consider is the allegation by the defendant that the plaintiff was intoxicated. I believe that to be likely. There are a number of things that point in that direction. Firstly, the police made no attempt to interview her even by asking her questions and asking her to sign a police notebook when they arrived. Secondly, they spent an inordinate amount of time with her, on her version six hours. That may be exaggerated but a large amount of time which would indicate that they were waiting for her to, "sober up," so that she could drive her car home. Furthermore, the fact that she did not drive her own vehicle from the defendant's residence to the Amble Inn is indicative that she may have been intoxicated. On this issue, I prefer the evidence of the defendant. The fact that she did not attend the Grafton Base Hospital early in the morning of 9 June 2014 also indicates that the plaintiff did not want to go directly to the hospital. She may have been concerned about blood being taken from her or the like. If she were in pain following the assault that she told me of, one would expect her to go directly to the hospital but she did not. 4. The dynamics of this event appear to be that for some reason or another, the plaintiff took umbrage to what happened when the defendant's daughter and Adam sat at another table to the one she was sitting at with the chef. Perhaps she took umbrage to the fact that the defendant bought her a drink when she had not asked him to do so. There may have been some other reason that she took umbrage to what was happening and she decided that she would go home. Although one might think the defendant was eager to stop her going home because that was the source of his conveyance back to his home with his daughter and her boyfriend, subsequent events prove that the defendant and his daughter and boyfriend could afford a taxi ride home so that I accept the defendant's version that he was trying to dissuade the plaintiff from driving home: because of her intoxication it would not be safe for her to do so. 5. The plaintiff was "falsely imprisoned," when she was thrown into the vehicle and the door slammed on it by the defendant, if he slammed the door. In any event, the evidence is the door was closed, she was confined in the vehicle for a short while, there was the interaction when she was trying to get the keys from the ignition. She then got out of the vehicle and went back to the hotel. The damages for the false imprisonment are damages for a very modest period of time. However, it has to be remembered that the ultimate penalty that the law in this country knows is imprisonment and any deprivation of liberty must be marked by an award of damages to mark the fact that one person should not imprison another albeit for a short period of time. I think the appropriate award for false imprisonment in this case is $1,000. 6. As to the battery and assault, leaving aside the scarring that the plaintiff has, I would assess the damages at $5,000. The out of pocket expenses, as I have said, are $1,036.85. However, the plaintiff has been left with a scar which she feels is unsightly and many would agree with her. I do not wish to sound sexist but if the scar were on a male he would probably not be as concerned with it as the plaintiff is with her scar. However, it is unsightly. It is permanent and I believe the appropriate amount to award for the scarring in addition to the immediate effects of the assault and battery is a sum of $10,000. 7. The plaintiff also claims aggravated damages and exemplary damages. This is not a case for the awarding of exemplary damages. The defendant was charged with assault occasioning actual bodily harm and an offence of contravening an ADVO. For those offences, the defendant was sentenced to imprisonment for fifteen months but that was suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999. That is adequate condemnation of the defendant's conduct. Bearing in mind all the facts of this case and bearing in mind the award which I have already indicated, I do not believe that this is a case for aggravated damages either. The circumstances arise from a dispute between two mature adults, one of whom was intoxicated, each of whom may have had an animus against the other at the time. In my view, an award of aggravated damages is not appropriate. 8. For those reasons, I give verdict and judgment for the plaintiff against the defendant for $17,036.85. I order the defendant to pay the plaintiff's costs. Any other orders sought? 9. WOODBURY: Interest your Honour. HIS HONOUR: Well you work it out. The interest on the OPs will only be half because the period over which they were incurred. WOODBURY: Yes your Honour. HIS HONOUR: The interest on $6,000 of the general damages can be full but on the $10,000 only half. WOODBURY: Your Honour it's never that simple a process as you know although the actual amount won't be very much. HIS HONOUR: Yes well I don't know but that's why I'm saying do it now. WOODBURY: Your Honour Mr Fahey's calculations have the interest at $2,234.00. Perhaps the defendant can have seven days your Honour if they disagree with that interest. HIS HONOUR: Well if my maths be correct that comes to $19,270,85. WOODBURY: Yes that's correct. 1. HIS HONOUR: I revoke the order I made earlier today. The solicitor for the plaintiff has now calculated interest. The interest which I would allow is on $11,518.00 being $11,000 of the general damages and $518.00 representing half the out-of-pocket expenses that were incurred between 2015 and 2017. The general damages for scarring go into the future albeit that most of the $6,000 representing the immediate effects of the assault and battery and the false imprisonment occurred at the time of or shortly after the event now in question. When I add the interest that has been calculated to be $2,234.00 and add that to $17,036.85 I reach a sum of $19,270.85. I give verdict and judgment for the plaintiff against the defendant for $19,270.85. I order the defendant pay the plaintiff's costs.