Khodor v Murphy [2024] NSWDC 364, in the District Court of New South Wales examined a civil assault claim, addressing key issues surrounding contested evidence and the application of self-defence principles under the Civil Liability Act 2002 (NSW) ('CLA').
The case highlights the importance of witness credibility and consistency, corroboration of evidence and the evidentiary burden required to establish a self-defence claim.
Facts
On 8 March 2019, Mr. Khodor and Mr. Murphy were involved in a road-related altercation in Miller, in South-West Sydney.
Mr. Khodor alleged that after a brief exchange of words, Mr. Murphy assaulted him by striking him multiple times.
Mr. Murphy, however, admitted to delivering a single punch but maintained that it was necessary to defend himself.
Facts and Legal proceedings
Mr. Khodor initiated legal action against Mr. Murphy for assault. The case turned on the testimony of the two parties, as they were the only witnesses to the incident. Their accounts of events diverged significantly.
Under scrutiny was Mr. Khodor's assertion that Mr. Murphy had been speeding before the altercation.
The court found this claim implausible, given the road conditions and the characteristics of Mr. Murphy's van, which would have made excessive speed unlikely.
Moreover, Mr. Khodor admitted to following Mr. Murphy in an agitated state, which aligned with Mr. Murphy's account that Mr. Khodor had been the aggressor.
Decision
The court made the following key findings:
- Mr. Khodor's claim that Mr. Murphy was speeding was not supported by the physical evidence, including the presence of a speed bump that would have necessitated a lower speed.
- Mr. Murphy's version of events was deemed more credible and Mr. Khodor's evidence-in-chief was disjointed and difficult to follow. Evidence suggested that Mr. Khodor approached Mr. Murphy aggressively, yelled threats, spat at him, and threw multiple punches.
- In response, Mr. Murphy punched Mr. Khodor once in the face after attempting to retreat.
The central legal question was whether Mr. Murphy's punch amounted to an assault (technically a common law battery) or was justified under self-defence.
The court applied sections 52 and 53 of the CLA.
- Section 52 –
Under that section, Mr. Murphy would not be liable if:
- the force he used was in response to unlawful conduct,
- if he genuinely believed it was necessary for self-defence, and
- if the conduct was necessary to defend himself or a reasonable response in the circumstances under the circumstances as he perceived them [19]
- Section 53 –If the conduct was considered a reasonable response by Mr. Murphy, damages would only be awarded if circumstances of the case are exceptional and a failure to award damages would be harsh or unjust.
- Damages – By virtue of section 53(2) if damages were awarded against Mr. Murphy, no damages may be awarded for non-economic loss. If Mr. Khodor proved his case, damages would be assessed according to common law principles unmodified by the CLA [21 and 22].
Outcome
The court ruled in favour of Mr. Murphy, concluding that:
- Mr. Khodor's conduct—spitting and attempting to punch Mr. Murphy—was unlawful.
- Mr. Murphy's belief that he needed to defend himself was genuine and reasonable.
- His response—a single punch—was a reasonable given the situation.
Applying the civil standard of proof, the court found that Mr. Murphy's actions constituted lawful self-defence.
As a result, Mr. Khodor's claim for damages was dismissed, and he was ordered to pay Mr. Murphy's legal costs.
Although no damages were awarded, the court assessed Mr. Khodor's damages claim and determined that, had he succeeded, he would have been entitled only to a modest amount for general damages ($20,000.00) and future out-of-pocket expenses ($5,000.00). The court was otherwise critical of the claim.
Key takeaways
- Credibility– Where witness testimony conflicts, courts place significant weight on credibility. The implausibility of Mr. Khodor's claims, coupled with his aggressive conduct, undermined his case.
- Consistency – In matters involving assaults, Courts will place weight upon consistent evidence. In this matter, Mr. Khodor gave an inconsistent account of what happened, which went against Mr. Khodor's reliability and credibility as a witness.
- Contemporaneous evidence and corroboration – Courts will test the testimony of witnesses against any contemporaneous materials, objectively established facts and the apparent logic of events.
- Self-defence justification – The case reaffirms that self-defence can justify an otherwise unlawful act, provided it meets the criteria outlined in the CLA.
- Legal and strategic considerations – This case serves as a reminder of the importance of a well-supported factual narrative in civil assault claims, particularly when relying on self-defence as a legal argument.
This decision underscores the complexities of self-defence in civil assault cases and the critical role of credibility in determining outcomes.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
