Ray v Southon

1. [1]

   WARD P: I have had the advantage of reading in draft Harrison J’s reasons, with which I agree. I also agree with the order that his Honour proposes.

2. [2]

   GRIFFITHS AJA: I agree with Harrison J.

3. [3]

   HARRISON J: The appellant and the respondent lived in a de facto relationship for about 17 years until August 2017. The respondent alleged that on the 17th of that month she was assaulted by the appellant in their home at Kariong when he grabbed and shook her and pushed her, causing her to fall back and strike her head on a coffee table. She suffered injuries for which she sued, commencing proceedings on 26 June 2020. On 24 February 2022, his Honour Abadee DCJ found in the respondent’s favour, and awarded her damages in the sum of $163,786.46: Southon v Ray [2022] NSWDC 32.

4. [4]

   By his amended notice of appeal filed on 3 November 2022, the appellant appeals from the whole of his Honour’s decision upon the following grounds:

   1. (1)

      The learned trial judge erred in rejecting the appellant’s evidence concerning his relationship with the respondent, in circumstances where such evidence was relevant to the issue of self-defence.

   2. (2)

      The learned trial judge erred in concluding that the respondent [sic, appellant] did not act in self-defence, whether at common law or within the meaning of the Civil Liability Act 2002.

   3. (3)

      The learned trial judge erred in admitting the report of Dr T Sheehan dated 2 February 2021 into evidence in full, in circumstances where Dr Sheehan did not possess specialised knowledge in the assessment of the need for domestic assistance.

   4. (4)

      The learned trial judge erred in failing to give sufficient reasons for his findings concerning the respondent’s entitlement to an award of damages for past and future domestic assistance.

   5. (5)

      The learned trial judge erred in awarding damages to the respondent in respect of past and future domestic assistance.

   6. (6)

      The learned trial judge erred in concluding that the appellant had the intention to injure the respondent at the time he pushed her and that, as a consequence, the Civil Liability Act did not apply.

Background

1. [5]

   According to the respondent, at about 6am on 17 August 2017, the appellant was in the loungeroom of the house and was moving towards the front door. She asked him if, in the future, he could tell her when he was going away as she noticed he had a suitcase and she could tell he was going away. He replied, saying that he did not have to tell her. The respondent told him that his attitude was not acceptable and the appellant started yelling at her. The respondent told the appellant that she did not deserve to be treated like that. He then told her that he wanted her “out of his fucking house”. The respondent said that it was her house too and that she had been to see a solicitor and had received legal advice.

2. [6]

   The respondent formed the view that the appellant was angry as he gritted his teeth in front of her face, spat and foamed and kept slamming the door until the paint started to crack around it. It was at the point where she had mentioned being in contact with a solicitor that the appellant turned around, grabbed her with both arms on her shoulders and pushed her so hard that she fell backwards one and a half metres, hitting her head on a coffee table. She said that she was not unconscious but felt dazed although in other evidence the respondent said she had been unconscious for a short period. The appellant told her to “stop faking it” and “took off”. She lay on the floor for about two minutes. She realised she was injured and phoned the appellant, telling him she needed an ambulance. She rang for an ambulance herself, which arrived as the appellant returned.

3. [7]

   The appellant was interviewed at the Mudgee Police Station the following morning. He described their relationship as “not good” and that it had been “forced” upon him for the better part of 17 years. He said that arguments between them had been “fairly regular”. The appellant said that on the morning in question he had packed his bags and was ready to leave for three nights. The respondent was unhappy about this. An argument ensued. She became abusive. The argument lasted for about 15 minutes but did not become physical until just before he left. When he went to leave the house, the respondent blocked him from doing so. He tried to move her out of the way so that he could get to the front door when she fell over and hit her head. The appellant said he thought the respondent had probably put her hands on him as he was trying to open the door and that she had tried to push him out of the way to stop him leaving. He tried to move her out of the way by pushing her whilst he was opening the door. The appellant said to the police, “I pushed her and I think she’s fallen over … and she’s bleeding from the back of her head.” Although the appellant admitted in his police interview that he pushed the respondent, he made no reference to having done so in order to defend himself.

4. [8]

   At the date of the incident, the respondent was 52 and the appellant was 33. They met in 1998, when he was 14 and she was 33. At the time, the respondent became friends with the appellant’s parents and she often visited his parents socially. They commenced living together in 2000.

Grounds 1 and 2

1. [9]

   Part of the appellant’s response to the respondent’s allegations was that in pushing her away he had acted in self-defence. That was so despite the fact that he did not suggest this to the police in his interview with them on 18 August 2017.

2. [10]

   However, in his evidentiary statement made on 24 July 2021, the appellant referred to the situation in which his relationship with the respondent had been formed, including the manipulation and control exerted by her over him at an early stage and the degree of shame associated with the circumstances at that time. The appellant also referred to prior instances of violence perpetrated at the hands of the respondent and prior attempts by her to prevent him from leaving either the relationship or the home.

3. [11]

   The paragraphs of his statement that were objected to by the respondent, and upon which the appellant wished to rely, are as follows:

4. [12]

   The appellant submitted below that these paragraphs were relevant to the background of domestic discord and to the issue of self-defence in that they informed consideration by the trial judge of what was operating on the appellant’s mind when the incident happened.

5. [13]

   In the events that occurred, his Honour rejected paragraphs [12] to [25] and [28] to [35] on the grounds of relevance. His Honour found that, had he formed the view that the paragraphs were relevant, he would have rejected them pursuant to s 135 of the Evidence Act 1995. His Honour deferred ruling on paragraphs [36] and [37] and granted leave to the appellant to ask questions arising from those paragraphs on the voir dire. Evidence of prior instances of violence in 2012, 2015 and 2017 was adduced on the voir dire. The appellant renewed his objection and the respondent pressed for the admission of the evidence. His Honour ruled that paragraph [36] was admissible “to the extent to which reliance is placed upon an incident in April 2017”. He rejected evidence of instances of violence in 2012 and 2015 pursuant to s 135. He also rejected paragraph [37] on the basis that “no additional evidence was led on the voir dire to sustain the generalised assertions that were made”.

6. [14]

   It was not in issue that in order to establish self-defence at common law in civil proceedings, the person asserting that an act was performed in self-defence must establish two things. First, that he or she believed in the circumstances as he or she perceived them to be at the time when performing the act in question that it was necessary to do what was done to defend himself or herself. Secondly, that the act that was performed was a reasonable response in the circumstances as he or she perceived them. In assessing the subjective components of the test, a court may take into account a person’s mental condition and whether a person’s past experiences may inform his or her belief about what conduct was necessary (R v Hutchison & Wilkinson [2018] NSWSC 1759) and what the person knew or believed about his or her alleged victim: Elias v R [2006] NSWCCA 365; R v Castaneda [2015] NSWSC 964. Relationship evidence may also be admitted as relevant to the state of mind of the person and whether or not he or she was acting in self-defence: R v Toki (No 3) (2000) 116 A Crim R 536; [2000] NSWSC 999; R v Anderson (2000) 111 A Crim R 19; [2000] VSCA 16.

7. [15]

   The appellant submitted that the evidence his Honour rejected was probative of matters that could legitimately have assisted his assessment of the subjective elements of the defence, namely, whether the appellant believed that it was necessary to grab and push the respondent in order to defend himself. Rejection of the evidence limited his ability to rely upon matters that were relevant to his mental state, and which referred to his past experiences with the respondent and what he knew or believed about her.

8. [16]

   In particular, the appellant submitted that the rejection of this evidence curtailed his ability to propound a case that the respondent was manipulative or exercised a degree of coercive control over him, that his actions and any incongruity in his behaviour were affected by the level of fear, shame and isolation that arose out of the circumstances in which their relationship originally formed, that he desired to leave the relationship and about the lengths to which the respondent would go to ensure he remained in it. Far from being an attempt to besmirch the respondent, those were matters that were relevant to the appellant’s state of mind at the time of the incident, his subjective belief as to whether his conduct was necessary, his perception of the surrounding circumstances and the unpredictability of the respondent’s behaviour.

9. [17]

   His Honour dealt thoroughly with the issue of self-defence at [84] to [89] of his judgment as follows:

10. [18]

    The terms of his Honour’s dismissal of the appellant’s self-defence arguments essentially anticipated his complaint in this appeal by concluding in effect that the evidence that the appellant now contends was wrongly rejected would not have made any difference. His Honour admitted paragraph [36] of the appellant’s statement which was the only reference anywhere to the respondent being physically violent towards the appellant at any time. That included on the morning of 17 August 2017 when the high point on the appellant’s account of what occurred on that occasion was at paragraphs [46] to [51] of his evidentiary statement as follows:

11. [19]

    His Honour rejected the appellant’s evidence that he was concerned that the respondent was about to attack him and that he feared for his safety. That finding is not challenged save to the extent that the appellant contends that it was made without the benefit of the evidence he rejected. However, I am unable to accept that the legitimacy of that finding was in any way imperilled by his rejection of the evidence that is the subject of these grounds of appeal. His Honour did not accept the suggestion that the appellant had been threatened by the respondent with knives or that he “was so emotionally under the ascendancy of [the respondent] as to be trapped in a relationship”. His Honour’s finding that the “notion that a stocky man with [the appellant’s] physique, set against [the respondent’s] physique, would be afraid or scared as to what she might do, without him taking any action to protect his interests … bordered on the absurd” is a conclusion that in clear terms took account of the very subject matter of the evidence the appellant says his Honour should have admitted. In any event and significantly, his Honour rejected the suggestion that the respondent’s conduct had triggered an actual belief in the appellant that he needed to push her to protect himself.

12. [20]

    His Honour was entitled to conclude that the evidence he rejected about the appellant’s past experiences with the respondent did not relevantly assist his asserted belief about what conduct might have been necessary on the morning of 17 August 2017. Nothing that the appellant said concerning what he knew or believed about the respondent, or about their longstanding relationship, could rise higher than the appellant’s evidence that he was concerned that the respondent was going to attack him and that he feared for his safety, evidence his Honour comprehensively rejected. The paragraphs were clearly not relevant in the sense contemplated by s 55 of the Evidence Act. There was nothing in the rejected paragraphs which could rationally have affected, directly or indirectly, the assessment of the probability of whether the appellant believed in the circumstances as he perceived them to be at the time that it was necessary to do what he did to defend himself. I accept the respondent’s submission that his Honour’s ruling that the evidence was irrelevant was inevitable. The rejected paragraphs do not directly or indirectly concern the question of whether the appellant acted in self-defence in August 2017. The relationship material is of no assistance to him. Having regard to his Honour’s factual findings about what happened on the morning in question, and his Honour’s preference for the respondent’s evidence, neither of which is challenged in this appeal, it is clear that even if the rejected material had been admitted, it was not capable of reasonably or rationally supporting a finding of self-defence.

13. [21]

    Grounds 1 and 2 should be dismissed.

Grounds 3, 4 and 5

1. [22]

   The respondent claimed damages for past and future domestic assistance at the rate of two hours per week on a commercial basis up to the date of the hearing and two hours per week of commercial assistance thereafter. She qualified Dr Thomas Sheehan, a Medico-Legal Consultant and Occupational Health, Safety and Rehabilitation Consultant. His report is dated 2 February 2021. Dr Sheehan proffered an opinion on the question of domestic assistance in the following terms:

2. [23]

   The respondent did not qualify an occupational therapist or equivalent healthcare professional to provide any comparable opinion.

3. [24]

   Dr Sheehan’s report was objected to by the appellant, to the extent that it purported to express opinions on the need for domestic assistance, because the doctor lacked expertise to do so. It was later argued that the report should be afforded little weight on that topic. His Honour ultimately awarded the respondent damages for domestic assistance, discounted by reference to factors that are not presently relevant.

4. [25]

   The appellant contended that the approach adopted by Basten JA in Boral Bricks Pty Ltd v Cosmidis [2013] NSWCA 443 at [93] supported the adoption of a similar outcome in the present case:

5. [26]

   His Honour made similar observations in Sampco Pty Ltd v Wurth [2015] NSWCA 117 at [83]:

6. [27]

   The appellant also referred to Top Hut Banoon Pastoral Co Pty Ltd t/a Trustee for the Wakefield Family Trust v Walker [2021] NSWCA 296 at [72] to like effect.

7. [28]

   The appellant submitted that his Honour fell into error in admitting the portions of Dr Sheehan’s report that dealt with past and future domestic assistance in circumstances where he lacked expertise in assessing the number of hours required to undertake domestic duties and the fact that such expertise is generally not within the province of medical doctors. He submitted further that the report was of little value in terms of establishing a reasonable need for domestic assistance because it lacked facts or reasoning relating to the respondent’s functional impairments or functional tolerances and whether or to what extent a need arises by reason of her injuries. He submitted that a precise consideration of the tasks with which the respondent required assistance should have been provided, without which little weight can be given to the report.

8. [29]

   His Honour dealt with the claims for past and future domestic assistance at [218] to [223] of his judgment as follows:

9. [30]

   The respondent submitted that it was clear from his Honour’s assessment that he relied upon her evidence to quantify her need. It is also clear that his Honour did not adopt Dr Sheehan’s recommendations or opinion as to the number of hours of domestic assistance she required. The ultimate calculation was instead based upon the need identified in the lay evidence and by a process of averaging.

10. [31]

    Dr Sheehan had specific relevant qualifications and experience related to rehabilitative medicine and occupational health. Those qualifications arguably set him apart from the practitioners discussed by Basten JA in the cited cases. It does not seem to me to be impermissible for a medical specialist with the extensive qualifications attained by Dr Sheehan to convert his assessment of a patient’s functional losses into a calculation of the estimated time it might take a healthy replacement to carry out the identified tasks with the performance of which the patient has established an identified difficulty. This is particularly so considering that when Dr Sheehan’s estimate is broken down, and before application of the discounts his Honour selected, it equated to one hour daily for six days of the week for domestic assistance for personal needs and less than one hour per week for handyman/gardener assistance. It does not seem to me to have been impermissible for the respondent in this case to demonstrate a need for domestic assistance relying upon Dr Sheehan’s opinion and the lay evidence that supported it. Cases like Boral Bricks and Sampco caution against relying upon unqualified medical opinions about the number of hours of assistance a plaintiff claims are required. Dr Sheehan was well placed to offer his opinions.

11. [32]

    Nor did his Honour fail to give adequate or sufficient reasons for his conclusions (noting that counsel for the appellant candidly and correctly acknowledged that this was not his strongest ground). On the contrary, it is difficult to know precisely or even generally what more his Honour could or should have said. His Honour dealt in appropriate detail with the respondent’s claimed injuries and disabilities. The respondent devoted a number of paragraphs of her statement of evidence to her asserted need for domestic assistance and the difficulties she was experiencing. She was not cross-examined extensively about these matters. It is clear that his Honour incorporated his findings about her physical limitations into his assessment of the need for assistance with identified tasks. His conclusions are reliably supported by the other references in his judgment to the respondent’s need for domestic assistance.

12. [33]

    I would dismiss these grounds.

Ground 6

1. [34]

   Section 3B of the Civil Liability Act provides relevantly as follows:

2. [35]

   His Honour clearly and accurately identified the issues and the parties’ contentions about whether or not the Act regulated the respondent’s claim for damages at [98] to [100] as follows:

3. [36]

   His Honour dealt with this issue in the following paragraphs:

4. [37]

   The respondent perceives that the appellant does not challenge his Honour’s finding at [110] that the appellant pushed her with the intention of causing injury: the respondent’s written submissions include in terms the suggestion that “the appellant does not seek to challenge or disturb a positive finding by the primary judge that there was an actual, subjective intention to injure”. However, having regard to the wording of ground 6, which alleges that his Honour erred in concluding that the appellant had the intention to injure the respondent at the time he pushed her, that perception cannot be correct.

5. [38]

   The appellant provided detailed submissions in support of this ground of appeal that included a review of the authorities dealing with the nature of the intention to cause injury, and the issue of whether the requisite intention was one to cause the precise injury sustained or whether an intention merely to cause injury of the type ultimately sustained would suffice.

6. [39]

   Following that review, the appellant submitted as follows:

7. [40]

   In an apparent reliance upon that analysis, the appellant’s submissions proceeded thereafter to make the following case:

8. [41]

   It is timely to note what Basten JA said in Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc (2020) 103 NSWLR 658; [2020] NSWCA 294 at [10] and [15] to which the appellant refers:

9. [42]

   Paragraph [56] of the appellant’s submissions includes the contention that he intentionally did an act, which had the consequence of causing injury to the respondent but that at the time of doing the act, he did not have the actual, formulated, specific intent to cause the respondent injury. Framed in that way, the appellant appears to be submitting that while injury may have been the result of his act in pushing the respondent, he did not have the intention to cause that injury or indeed any injury at all. That submission is a direct challenge to his Honour’s finding that the appellant intended to injure the respondent or, what amounts to the same thing, to cause her harm, and that it did not matter how that harm was likely to be occasioned. However, apart from submitting that his Honour’s finding should be rejected, the appellant offers no basis for why that should occur, apart from the generic contention that it “is open to this Court to interfere with his Honour’s findings as regards specific intent as such findings are contrary to compelling inference”.

10. [43]

    Paragraph [110] of his Honour’s judgment makes it clear that he considered the evidence established that the appellant formed the intention to injure the respondent when he pushed her. I am unable, by reference either to the appellant’s submissions or to his Honour’s process of reasoning, to conclude that his Honour’s finding is wrong.

11. [44]

    Ground 6 should be dismissed.

Conclusion

1. [45]

   It follows in my view that the orders of the Court should be that the appeal is dismissed with costs.