A punch in the face, plus costs: Khodor v Murphy [2024] NSWDC 364

In the recent decision of Khodor v Murphy [2024] NSWDC 364, the New South Wales District Court delivered a judgment on a civil case of assault, which involved contested evidence and the self-defence principles under the Civil Liability Act 2002 (NSW) (CLA) were applied.

Facts

On March 8, 2019, Mr Khodor and Mr Murphy were involved in a road incident in Miller, in south-west Sydney. Khodor claimed that, after a brief conversation with Murphy, Murphy assaulted him by hitting him multiple times. Murphy admitted to hitting Khodor once but argued that this was a necessary act of self-defence.

Proceedings issued

Mr Khodor sued Mr Murphy for assault.

The only two witnesses to give evidence at the hearing were Mr Khodor and Mr Murphy, who gave completely different accounts of the critical events.

Mr Khodor’s description of the incident was scrutinised, especially regarding his claim that Mr Murphy was speeding. This was contradicted by the physical characteristics of Mr Murphy’s van and the road conditions, which did not support such a claim. In addition, Mr Khodor admitted to following Mr Murphy in an agitated state, corroborating Mr Murphy’s version of events that Mr Khodor confronted him aggressively.

Decision

The court found that:

Mr Khodor’s assertion that Mr Murphy was speeding as implausible, given the physical evidence, including the size of Mr Murphy’s van and the presence of a speed bump that would have likely reduced his speed. Mr Khodor’s admission to following Mr Murphy in a state of anger aligned with Mr Murphy’s account of the incident.

Mr Murphy’s evidence that Mr Khodor acted aggressively upon encountering him was credible. Mr Khodor approached Mr Murphy, yelled threats, and physically attacked him by spitting and throwing multiple punches. Mr Murphy, in response, punched Mr Khodor once in the face to defend himself after trying to retreat.

The central legal issue was whether Mr Murphy’s punch constituted an assault (or more correctly, common law battery), or if it was justified under self-defence. The Court considered sections 52 and 53 of the CLA, which provide defences for intentional acts done in self-defence:

• Section 52: Mr Murphy would not incur liability if the conduct he was responding to was unlawful, if he believed his response was necessary for self-defence, and if his response was reasonable in the circumstances as he perceived them.
• Section 53: Even if Mr Murphy met the first two criteria but not the third, damages would only be awarded if the court found exceptional circumstances and that failing to award damages would be harsh and unjust.

The court determined that:

• Mr Khodor’s actions were unlawful (spitting and punching).
• Mr Murphy’s belief that he needed to defend himself was genuine and reasonable.
• Mr Murphy’s response of a single punch was proportionate given the escalation of the situation.

In applying the civil standard of proof, the Court ruled in favour of Mr Murphy, finding that his single punch was a reasonable act of self-defence and that Mr Khodor had not proven his claim of multiple assaults and injuries. Consequently, Mr Murphy was entitled to a judgment in his favour, and Mr Khodor’s claim for damages was denied.Mr Khodor was ordered to pay Mr Murphy’s costs.

The court, as it often does, did go on to assess Mr Khodor’s claim for damages despite not awarding them. It found that he would have been entitled to a modest sum for general damages and future out of pocket expenses, but was otherwise critical of Mr Khodor’s claim for damages.

Key takeaways

Some fascinating takeaways from this case include the self-defence justification, that Mr Murphy’s single punch was deemed a reasonable response to Mr Khodor’s aggressive actions, affirming the principle of self-defence can justify otherwise unlawful conduct.

This case also serves as a reminder of the weight that the credibility of a witness can have on the outcome of proceedings. For a case that involved only two witnesses who had conflicting accounts, significant weight was placed on the credibility of each witness and relied on physical evidence, such as the size of the van and presence of a speed bump, to assess the plausibility of the witness statements and establish a factual basis of the incident. The court found that Mr Khodor’s implausible claims about Mr Murphy’s speed and the aggression he displayed affected his credibility significantly.