Schilling v Smith [2022] NSWDC 298

Schilling v Smith [2022] NSWDC 298

The Court accepted the plaintiff's unchallenged and compelling evidence that Adam Smith intentionally and without consent head-butted, punched, kicked, dragged and sexually assaulted him, and subsequently led threatening conduct against him. Those acts constituted unlawful intentional assaults and trespasses to the person in aggravated circumstances. Because some damages material had not been served, liability was determined separately and judgment was entered for the plaintiff on liability, with damages deferred to preserve procedural fairness.

Jurisdiction
Australia
Judgment Date
27 July 2022
Procedural Posture
Civil Tort Claim for Intentional Trespass to the Person, Including Assault, Battery and Sexual Assault / Determination of Liability of the First Defendant as a Separate Question Pursuant to UCPR R 28.2, With Damages Part Heard
Outcome
Verdict and judgment for the plaintiff against the first defendant Adam Smith on liability; damages hearing to resume later.
Legal Topics
['intentional Torts' 'assault' 'battery' 'sexual Assault' 'separate Question' 'procedural Fairness' 'substituted Service' 'abridged Service']
['torts' 'civil Procedure'] ['intentional Torts' 'assault' 'battery' 'sexual Assault' 'separate Question' 'procedural Fairness' 'substituted Service' 'abridged Service']

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Procedural Posture

Civil Tort Claim for Intentional Trespass to the Person, Including Assault, Battery and Sexual Assault / Determination of Liability of the First Defendant as a Separate Question Pursuant to UCPR R 28.2, With Damages Part Heard

Legal Issues

  1. 1 ["Whether the first defendant, Adam Smith, was liable for intentional trespasses to the plaintiff's person, including physical assaults and sexual assault." 'Whether the question of liability should be determined separately from the assessment of damages pursuant to UCPR r 28.2.' 'Whether procedural fairness required service of damages material on the first defendant before damages were assessed.']

Ratio Decidendi

The Court accepted the plaintiff's unchallenged and compelling evidence that Adam Smith intentionally and without consent head-butted, punched, kicked, dragged and sexually assaulted him, and subsequently led threatening conduct against him. Those acts constituted unlawful intentional assaults and trespasses to the person in aggravated circumstances. Because some damages material had not been served, liability was determined separately and judgment was entered for the plaintiff on liability, with damages deferred to preserve procedural fairness.

Court Disposition

Verdict and judgment for the plaintiff against the first defendant Adam Smith on liability; damages hearing to resume later.

Orders

  • ["Pursuant to UCPR r 28.2, the question of liability of the first defendant Adam Smith is to be determined as a separate question to the assessment of the plaintiff's claim for damages." 'Verdict and judgment for the plaintiff against the first defendant Adam Smith on the question of liability.' 'The part-heard...