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Self- defence and ‘Lawfulness’

The NSW Court of Appeal recently had to consider if self-defence could be relied on to avoid a finding that a person had been responsible for an ‘assault’, which ultimately resulted in a civil claim for damages by the person who was hit.  

Briefly, a patron at a bar in Cronulla was ejected by the owner and his friend (a licensed security guard but not an employee) for being intoxicated and troublesome.  His female companion left with him.  There was an altercation on the footpath.  A fight broke out between the patron and the security guard, in the course of which the female companion was hit on the side of her face by the security guard and her jaw was broken.  She brought a claim for damages against the bar, the owner, and the security guard.  She failed in that claim at trial and brought an appeal.

One of the appeal points related to the issue of self-defence.  The security guard had successfully argued at trial, that when he struck the female companion (there was no dispute he had in fact done so) he was acting in self-defence because she had grabbed his shirt from behind; and he had immediately turned and struck her in the face.

There was no doubt that the security guard’s act was deliberate and intentional.  The trial Judge held, despite this, that the security guard was not liable because section 52 of the Civil Liability Act operated as a defence, by reason that the security guard was acting in self-defence.  The Court of Appeal reversed that decision following a careful analysis of the particular provision.  Fundamentally, it held that in order for the provision to apply (that is, for a person to be protected from liability by reason of self-defence) it was necessary to show that the conduct to which they were responding was “unlawful”.  On the particular facts of this case, although it was not in dispute the female companion had made contact with the security guard’s back, the Court of Appeal said that contact could not be described as “unlawful” conduct; and therefore the self-defence protection was not available to him.

There were various other aspects of the trial Judge’s decision that were also reversed, but the ultimate outcome was that whereas the security guard escaped any liability at trial, after the appeal he was ordered to pay damages of just less than $190,000.00, and costs.

The case shows that determining whether particular conduct is, or is not, “self-defence” for the purposes of civil liability, can be a quite nuanced exercise:  Brighten v Traino [2019] NSWCA 168

Liability limited by a scheme approved under Professional Standards Legislation

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