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(1) This Part applies to civil liability of any kind for personal injury damages (as defined in Part 2) or damage to property.
(2) This Part extends to any such liability even if the damages are sought in an action for breach of contract or any other action.
(3) This Part does not apply to civil liability that is excluded from the operation of this Part by section 3B.
(1) A person does not incur a liability to which this Part applies arising from any conduct of the person carried out in self-defence, but only if the conduct to which the person was responding:
(a) was unlawful, or
(b) would have been unlawful if the other person carrying out the conduct to which the person responds had not had a mental health impairment or a cognitive impairment at the time of the conduct.
(2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:
(a) to defend himself or herself or another person, or
(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
(c) to protect property from unlawful taking, destruction, damage or interference, or
(d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them.
(3) This section does not apply if the person uses force that involves the intentional or reckless infliction of death only:
(a) to protect property, or
(b) to prevent criminal trespass or to remove a person committing criminal trespass.
Mr Sica was injured during a physical altercation with his neighbour, Mr Brophy,
and sought damages for personal injury. It was accepted that Mr Brophy had struck Mr Sica, but was argued for Mr Brophy that he did so acting in self-defence. The primary judge found that Mr Sica had come close to Mr Brophy and lunged at him, and accepted that Mr Brophy reasonably believed that his actions were necessary to defend himself. Mr Sica appealed.
On s 52: Mr Brophy was entitled to rely on the defence in s 52. Even without finding that Mr Sica had first struck Mr Brophy, it was open to the primary judge to find that Mr Sica had at least assaulted him, and that that conduct was unlawful. Mr Brophy was responding to that unlawful conduct in striking Mr Sica, believing it necessary to do so in order to defend himself, and acted reasonably in doing so.
Ms Brighten attended the Sting Bar in Cronulla with her friend, Mr Provan. Mr Provan became intoxicated and disruptive. Mr Traino, the licensee, asked his friend Mr Richardson to help remove Mr Provan. Mr Richardson was trained as a security guard, but was not an employee. Mr Provan was evicted, and a skirmish occurred on the path. Ms Brighten left the venue to observe. Mr Richardson was moving backwards towards Ms Brighten at one point. She raised her hands and held the back of his shirt. He turned and struck her in the face, causing a fractured jaw. Ms Brighten commenced proceedings in the District Court, claiming damages for battery against Mr Richardson,
in negligence against Mr Traino, as the licensee, and against the company operating Sting Bar, on the basis that they owed her a duty to protect her from the actions of other patrons. The primary judge held that Mr Richardson was not liable in battery because his actions were taken in self-defence, and also dismissed the negligence claims. Ms Brighten appealed. The Court of Appeal allowed the appeal with respect to the claim in battery, and dismissed it with respect to the negligence claims.
On s 52: Mr Richardson could not rely on the protection against civil liability in s 52 and the damages limitation in s 53, because Ms Brighten’s conduct was not unlawful: [43], [135], [145].
NSWCA decision cited in discussion:
State of New South Wales v McMaster
(2015) 91 NSWLR 666; [2015] NSWCA 228
An altercation between two neighbours led to the respondent being seriously injured by gardening shears wielded by the appellant.
The primary judge awarded the respondent common law damages at first instance for battery and found that self-defence was not made out. On appeal, the appellant submitted that the act was one of self- defence to which s 52 applied.
Sections 52 and 53 depend upon whether the conduct to which the defendant was responding was “unlawful”. “Unlawful” conduct extends to conduct which is merely tortious as opposed to criminal. Further, the onus of establishing the elements of self- defence lies on the defendant. Section 52 then prescribes two necessary and sufficient conditions to establish a defence of self- defence: demonstrating, first, that the requisite subjective belief on the part of the defendant and, second, that the defendant’s conduct was a reasonable response to the circumstances as perceived by him or her.
The second limb of the test contains both subjective and objective elements.
In the event that the only reason for the defence under s 52 being unavailable is that the reasonable response limb was not satisfied, then s 53 imposes a prohibition upon ordering damages which can be lifted if the court considers that circumstances are exceptional.
In the immediate case, the findings of the primary judge disclosed error in several senses – the primary judge treated the reasonable response limb as dispositive and confined attention to crime, not dealing with the possibility that the respondent was committing an assault. Further, the primary judge applied the wrong test for the appellant’s subjective state of mind, proceeding on the basis that his state of mind could not be inferred from the circumstances of the case but could only be sourced from direct evidence.
However, there were insufficient factual findings as to the appellant’s state of mind to determine whether the defence should be made out. A retrial was ordered. [42]-[45],
[109]-[114]
NSW Court of Appeal cases cited in discussion:
State of New South Wales v McMaster
[2015] NSWCA 228
Presidential Security Services of Australia Pty Ltd v Brilley [2008] NSWCA 204
The first respondent was shot by a police officer who was responding to a violent home invasion occurring at the premises at which the first respondent was living. The first respondent brought claims against the State in negligence and trespass to the person. The trial judge found that the State was liable in battery. On appeal, the State contended, among other things, that the defence of self-defence was made out pursuant to s 52 of the Act.
There were three elements of the defence for which s 52 provides which were relevant in the present matter: first, the conduct of the other person must have been unlawful; second, the person must have believed the conduct was necessary to defend another person; and third, the conduct must have been a reasonable response in the circumstances. The critical question in the immediate case was whether the first respondent was acting unlawfully. The answer to that question was “yes” – the first respondent was acting unlawfully by committing an assault in contravention of the Crimes Act 1900 (NSW) s 61 at the time he was shot. The first respondent was not acting in self-defence and, therefore, responsibility for the assault was not precluded by s 418 of the Crimes Act. The State therefore successfully made out the defence of self-defence under s 52 of the Act.
Furthermore, “unlawful” conduct extends to purely tortious conduct under s 52 of the Act such that the section may apply as a defence to liability for actions done in self-defence against the commission of a tort. As the first respondent was at least negligent in committing a civil assault when he was shot, s 52 would also apply on that basis.
[190]-[199], [200]-[209]
(1) If section 52 would operate to prevent a person incurring a liability to which this Part applies in respect of any conduct but for the fact that the conduct was not a reasonable response in the circumstances as he or she perceived them, a court is nevertheless not to award damages against the person in respect of the conduct unless the court is satisfied that:
(a) the circumstances of the case are exceptional, and
(b) in the circumstances of the case, a failure to award damages would be harsh and unjust.
(2) If the court determines to award damages on the basis of subsection (1), the following limitations apply to that award:
(a) Part 2 (with the exception of Division 3 of that Part) applies with respect to the award of damages despite section 3B (1) (a), and
(b) no damages may be awarded for non- economic loss.
The appellant sustained injuries when he fell from the side of a motor vehicle which was being driven by the respondent across a grass reserve. The appellant sought damages from the respondent based both on an intentional tort and negligence. The primary judge accepted that the respondent was negligent but not that he intended to cause injury to the appellant. His Honour assessed contributory negligence at 70%.
His Honour accepted that the defences under Sections 53 and 54 of the Civil Liability Act 2001 (NSW) (CLA) were made out such that the respondent was not liable to pay damages to the appellant. The appeal was allowed, the judgment of the District Court was set aside and judgment was given for the appellant in the sum of $132,279.16.
On s 53: It is a prerequisite to the defence raised under s 53 of the CLA that the individual believe that their conduct was necessary to defend themself. Therefore,
s 53 of the CLA did not apply: [9]-[12],
[17]; [187]-[202].
In relation to s 54, the respondent was engaged in conduct which constituted an offence within the meaning of s 54(2) such that no defence was available under s
54: [18]; [213]-[217].
NSWCA decisions cited in discussion:
Sangha v Baxter [2009] NSWCA 78
Croucher v Cachia (2016) 95 NSWLR 117;
[2016] NSWCA 132
Presidential Security Services of Australia Pty Ltd v Brilley (2008) 73 NSWLR 241; [2008]
NSWCA 204
Bevan v Coolahan (2019) 101 NSWLR 86;
[2019] NSWCA 217
High Court decisions cited in discussion:
Suttor v Gondowda (1950) 81 CLR 418;
[1950] HCA 35
Ms Brighten attended the Sting Bar in Cronulla with her friend, Mr Provan. Mr Provan became intoxicated and disruptive. Mr Traino, the licensee, asked his friend Mr Richardson to help remove Mr Provan. Mr Richardson was trained as a security guard, but was not an employee. Mr Provan was evicted, and a skirmish occurred on the path. Ms Brighten left the venue to observe. Mr Richardson was moving backwards towards Ms Brighten at one point. She raised her hands and held the back of his shirt. He turned and struck her in the face, causing a fractured jaw. Ms Brighten commenced proceedings in the District Court, claiming damages for battery against Mr Richardson, in negligence against Mr Traino, as the licensee, and against the company operating Sting Bar, on the basis that they owed her a duty to protect her from the actions of other patrons. The primary judge held that Mr Richardson was not liable in battery because his actions were taken in self-defence, and also dismissed the negligence claims. Ms Brighten appealed. The Court of Appeal allowed the appeal with respect to the claim in battery, and dismissed it with respect to the negligence claims.
On s 53: Mr Richardson could not rely on the protection against civil liability in s 52 and the damages limitation in s 53, because Ms Brighten’s conduct was not unlawful: [43], [135], [145].
NSWCA decision cited in discussion:
State of New South Wales v McMaster
(2015) 91 NSWLR 666; [2015] NSWCA 228
An altercation between two neighbours led to the respondent being seriously injured by gardening shears wielded by the appellant.
The primary judge awarded the respondent common law damages at first instance for battery and found that self-defence was not made out. On appeal, the appellant pleaded that the act was one of self-defence to which s 52 applied.
Sections 52 and 53 depend upon whether the conduct to which the defendant was responding was “unlawful”. “Unlawful” conduct extends to conduct which is merely tortious as opposed to criminal. Further, the onus of establishing the elements of self- defence lies on the defendant. Section 52 then prescribes two necessary and sufficient conditions to establish a defence of self- defence: demonstrating, first, that the requisite subjective belief on the part of the defendant and, second, that the defendant’s conduct was a reasonable response to the circumstances as perceived by them. The second limb of the test contains both subjective and objective elements.
In the event that the only reason for the defence under s 52 being unavailable is that the reasonable response limb was not satisfied, then s 53 imposes a prohibition upon ordering damages which can be lifted if the court considers that circumstances are exceptional.
In the immediate case, the findings of the primary judge disclosed error in several senses – the primary judge treated the reasonable response limb as dispositive and confined attention to crime, not dealing with the possibility that the respondent was committing an assault. Further, the primary judge applied the wrong test for the appellant’s subjective state of mind, proceeding on the basis that his state of mind could not be inferred from the circumstances of the case but could only be sourced from direct evidence.
However, there were insufficient factual findings as to the appellant’s state of mind to determine whether the defence should be made out. A retrial was ordered. [42]-[45], [109]-[114]
NSW Court of Appeal cases cited in discussion:
State of New South Wales v McMaster [2015] NSWCA 228
Presidential Security Services of Australia Pty Ltd v Brilley [2008] NSWCA 204
An altercation occurred when the respondent caught the appellant breaking apart his staircase with a sledgehammer. The applicant submitted that the primary judge applied the incorrect test and incorrect onus for the defence of self-defence.
The effect of s 53 is that, ordinarily, no award for damages can be made if the defence of self-defence is not available only because the defendant’s conduct was not a reasonable response to the circumstances as perceived by the defendant. However, this is subject to an exception where the Court is satisfied that the circumstances of the case are exceptional and a failure to award
damages would be harsh and unjust. Even where the exception applies, s 53(2) limits the award of damages.
The onus of proof is on the plaintiff since the provision operates to prevent a court awarding damages against the defendant unless the court is satisfied of the two matters required to make out the exception. [65]-[66]
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10 Nov 2024
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