Bandisch v Vincin [2022] PGNC 488; N10010 (28 October 2022)

N10010

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 119 OF 2019

BETWEEN
WOLFGANG BANDISCH
Plaintiff

AND
SEAN VINCIN
Defendant

Waigani: Linge AJ
2022: 28^th October

TRESPASS – trespass to person - personal injury claim –personal injury claim by plaintiff as a result of assault and battery - trial on liability – plaintiff has onus of proof on the balance of probabilities - defendant raises defence of self-defence – plaintiff knocked out of a stool and onto the floor and dragged towards the door of a club and sustained broken ribs and soft tissue injuries – defence of self defence not made out – plaintiff proved the defendant had assaulted him resulting in bodily injuries to his person – liability for trespass to person established – assessment of damages to follow

Cases Cited:
Papua New Guinean Cases

Mesa v Baki [2009] PGNC 80; N3681
Tuwi v Taiya [2010] PGNC 17; N3901
Reiman v Ningisere [2011] PGNC 209; N4531

Overseas Cases:

Browne v. Dunn (1893) 6 R. 67, H. L
Collins v Wilcock [1984] 1WLR 1172
Barton v Armstrong [1973] UKPC 27
Rixon v Star City Pty Ltd [2001] NSWCA 265

Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1

Counsel:

Mr. Simon Nutley, for the Plaintiff
Mr. Bobby Nutley, for the Defendants

JUDGMENT

28^th October, 2022

1. LINGE AJ: This is a judgment of the Court on liability on a contested trial conducted on the 28 October 2022.
   

2. By the Statement of Claim endorsed on the Writ of Summons filed 26 February 2019 the plaintiff claims damages for personal injury as a consequence of the trespass to the plaintiff by the defendant.

Facts

3. On 18 November 2018 at or about 6pm, the plaintiff and the defendant met for drinks at the air-conditioned bar at the Aviat Social and Sporting Club, Konedobu, Port Moresby, (Aviat Club). Both plaintiff and defendant were at the same high table having drinks. Others at the same table were:

i. Ken Vincin, the Defendant’s father; and

ii. Mark Ryder

4. The plaintiff was seated on a stool at the table. A verbal altercation ensued between the plaintiff and the defendant. The defendant became upset and objected to the statements made by the plaintiff in response to an opinion expressed by the defendant in relation to the merits and demerits and perceived benefits of the APEC Meeting which was held in Papua New Guinea at that time.

5. The defendant shouted to the plaintiff “Look at me when I am speaking to you”, or words to that effect. The plaintiff did not obey the defendant’s demands to look at him. The plaintiff’s refusal to look at the defendant while being addressed by the defendant enraged the defendant so he came around to the plaintiff’s side of the table going around his father Ken Vincin to so position himself directly behind the back of the chair on which the plaintiff was sitting.

6. The defendant grabbed the plaintiff’s shirt from the back then knocked the plaintiff from his chair onto the floor towards the door screaming at him to get out of the premises. The defendant discontinued dragging the plaintiff on the interaction of third parties.

7. The plaintiff sustained at least one broken rib bone and soft tissue injuries as a direct result of his fall from the stool or as a direct result of being manhandled by the defendant and dragged towards the door.

8. The plaintiff required medical attention for the injuries caused by or as a direct result of the defendant’s action. The soft tissue injuries to the neck and shoulders and his ribs area, (one rib and possibly two were broken) sustained by the plaintiff continues to cause him to experience extreme pain.

9. The plaintiff also claims that the injuries he sustained have prevented him from effectively returning to his workplace. His inability to return to work immediately causing him to suffer economic loss.

10. In his cause of action, the plaintiff claims consequential damages for injuries and loss as follows:

1. suffered pain, discomfort and inconvenience;
2. suffered economic loss, and will suffer economic loss in future;
3. has required medical treatment and will require medical treatment in the future; and
4. has required and will require, personal and domestic care and assistance.
   

Evidence
Plaintiff’s evidence

11. The plaintiff relies on his own affidavit sworn 3 October 2019 and filed 7 October 2019. This affidavit was tendered into evidence. The plaintiff was cross examined extensively by counsel for the defendant.

Defendant’s evidence

12. The defendant relies on his affidavit sworn 1 June 2022 and filed 2 June 2022. The defendant’s affidavit was tendered into evidence.

Submissions
For the Plaintiff

13. Mr. Simon Nutley for the plaintiff refers to the rule in Browne v. Dunn (1893) 6 R. 67, H.L. that basically entails that a cross examiner cannot rely on evidence that is contradictory to the testimony of the witness without putting the evidence to the witness in order to allow them to attempt to justify the contradiction.

14. He contends that on cross examination of the plaintiff, the defendant’s council based his questioning on the following:

i. the medical report dated 12 February 2022;

ii. invoices annexed to the affidavit of the defendant;

iii. the injury to plaintiff was not a result of the events of 28 November 2018, but that any injury he was suffering from at the time was pre-existing.

15. Mr. Simon Nutley submits that the defendant’s counsel failed to put to the plaintiff that the defendant did not cause the plaintiff to fall nor the defendant’s actions were unintentional.

16. He further submits that the defendant’s counsel did not put to the plaintiff during cross examination the allegation that the defendant acted in self-defence.

17. Counsel contends that the defendant’s counsel only queried the extend of the plaintiff’s injury as shown on the medical report dated 19 November 2018 in comparison to the plaintiff’s statement of claim in an attempt to downgrade the plaintiff’s injuries compared to the pleading in the Statement of Claim.

18. Counsel submits that the defendant merely took issue with certain invoices/receipts that predated the 28 November 2018, to demonstrate to the court that some of the invoices and receipts were excessive. The defendant’s main bone of contention was the amount in damages he is liable to pay to the plaintiff for assaulting him.

19. Mr. Simon Nutley submits that the defendant cannot deny the plaintiff’s versions of the incident by which the plaintiff was thrown to the floor which is a clear physical assault.

For the defendants

20. Mr. Bobby Nutley for the defendant submits that the plaintiff has pleaded the common law Tort of assault and battery trespass, and negligence against the defendant and has the onus to prove the essential elements of tort on the balance of probabilities.

21. Counsel contends that the defendant pleads the defence of self-defence. He submits that the defendant applied reasonable force to eradicate threats by the plaintiff by pointing and pushing his pointer finger against his chest. He cited in support the latin phrase ‘ex turpi causa non oritur action’ or a claimant may be debarred from recovering damages because his claim arises out of his own criminal conduct.

22. He refers me to the long definition of ”assault “in Bullen & Leake & Jacobs Precedents of Pleadings, 18^th Ed. Volume 1, para.5.03, Sweet & Maxwell. I will consider this in my consideration of the evidence in a while.

23. He also refers me to the definition of battery in Halsbury’s Laws of England (4^th Ed.) p.602 in part on “assault” states: “The term “assault” is commonly used to include battery. If the plaintiff has consented to the contact or has permitted it, either expressly or impliedly, there is no battery.”

24. Mr. Bobby Nutley submits that the plaintiff committed assault against the defendant when during the exchange the plaintiff threateningly, pointed and pushed at the defendant’s chest, while continuing to repeat the profanities. That such actions constituted an assault against the defendant and warranted the action from the defendant to contain the plaintiff.

25. He submits that the defendant applied reasonable force to move the plaintiff out of the air-conditioned Bar area and that there was no injury to the plaintiff at the relevant time of the incident.
26. Mr. Bobby Nutley submits that the plaintiff’s attitude and rude character of issuing threat and verbal assault was on display during cross-examination at trial. The plaintiff was very disrespectful towards the Court, was shouting and agitated towards the Court reporting staff and the lawyers and parties inside the Court room including the plaintiff use of “F” word when queried by defendant’s counsel about including receipts and invoices of payments related to medical fees incurred prior to the 18 November 2018.

27. Counsel submits that Court should not place much weight on the plaintiff’s evidence on his claim of assault and battery, or trespass, on the part of the defendant which have not been cross-examined due to his rude and disrespectful character in Court.

28. During cross-examination Counsel referred to the Medical Report from Aspen Medical Centre dated 12 February 2019. Attached to it was the Radiology Report of 19 November 2018 confirming a mild fracture on the plaintiff’s right 7^th rib. When queried during cross examined, the plaintiff confirmed the pleading at paragraph 10 of the Statement of Claim that 2 ribs were broken prompting Counsel to submit that the plaintiff was exaggerating his claim.

29. Also, during cross examination, the plaintiff revealed under questioning that he had prior medical condition and that he had fallen-off a treadmill, in or around September 2018 but there was no evidence before the Court about the treadmill incident. Counsel submits that the plaintiff’s response lacks credibility and that he deliberately excluded evidence of prior medical report and condition in his evidence and again the motive is to exaggerate his claim.

30. In the end Counsel submits:

(i) The plaintiff is untrustworthy, and lacks credibility as reflected in cross-examination at trial.

(ii) The evidence and the allegations by the plaintiff should be given less weight as there is a high probability of misleading the Court.

(iii) The plaintiff’s claim is a mere sham, the defendant is not liable for the plaintiffs alleged injuries, and it should be dismissed with costs to the defendant.

Consideration

31. As at the date of the incident at the Aviat Club, on the 18 November 2018, the plaintiff was 71 years of age, and the defendant was 37 years of age.

32. The plaintiff claims the common law tort of assault against the defendant. The elements of assault are:

(i) Positive act by the defendant. That is an act that causes another person to apprehend the infliction of an immediate unlawful force on him or his person, see Collins v Wilcock [1984] 1WLR 1172.

(ii) reasonable apprehension of the immediate and direct application of unlawful force, Barton v Armstrong [1973] UKPC 27.

(iii) intention that is with either general or specific intent, causing the reasonable apprehension of an immediate harmful or unlawful force of offensive contact, Rixon v Star City Pty Ltd [2001] NSWCA 265.

33. Bullen & Leake & Jacob’s Precedents of Pleadings, (supra) defines assault as:

“Assault is an intentional offer of force or violence to the person of another. There is an assault if there is a menace of violence, with a present ability to commit it. The menace must either be accompanied by an intention to commit the violence or must raise an actual fear of violence in the mind of the person threatened. Thus it is an assault for one person within striking distance unlawfully to advance to another in a threatening attitude with a fist clenched and with the intention of striking him immediately, or to point or brandish a weapon at another with the intention of using it or to present a firearm at another with the threat of shooting or to ride after another in a threatening manner so as to compel him to run for shelter to avoid being beaten.”

34. Both parties claim assault perpetrated against each other by the other. I will firstly consider the primary claim by the plaintiff in the cause of action.

35. The plaintiff’s evidence which is not in dispute is that, he made statements while seated on a stool at the high table facing the defendant at the Aviat Club. The content and nature of the interaction between the parties is not relevant and not for the Court’s scrutiny.

36. The defendant did not like what the plaintiff said, causing him to raise his voice and screamed at the plaintiff demanding that he look at the defendant while he was talking. I accept that the plaintiff refused to look at the defendant which enraged the defendant and that after a moment silence the defendant knocked the plaintiff from the stool he was sitting, down to the floor and dragged him by the shirt towards the door, screaming at the plaintiff to get out of the Aviat Club.

37. The plaintiff did not at any stage touched the defendant and did not threaten or gesture to threaten him in anyway.

38. In my view the defendant assaulted the plaintiff. The intention to assault was evident when the defendant approached the plaintiff by coming around Ken Vincin and grabbed the plaintiff by the shirt and dragged him towards the door. That was a clear intention to cause harm. It was the Positive act on the part of the defendant to so act and is a clear manifest of the intention. As a result, common assault on the plaintiff took place.

39. Put another way, the defendant acted with specific intent to lay his hand on and indeed executed his intention on the plaintiff when he “knocked the plaintiff from the stool he was sitting down to the floor and dragged him by the shirt towards the door”. This followed the refusal by the plaintiff to look at the defendant when he demanded him to do so. The assault was an unwanted and invited act, see Barton v Armstrong (supra).

40. It goes far beyond a mere apprehension of an infliction of an immediate unlawful force on his person. There was real physical contact or unlawful assault of which the plaintiff had not approved.

41. There is abundance of case law in this jurisdiction on unlawful assault, trespass upon a person and battery to a person usually by members of the Police personnels. I find the plaintiff’s claim to be clear cut and unlawful, see in Mesa v Baki [2009] PGNC 80; N3681 and Tuwi v Taiya [2010] PGNC 17; N3901.

SELF-DEFENCE

42. The defendant pleads self-defence. It is trite learning that assault can be justified in situations where there is lawful justification or excuse. Such situations can arise in situations of self-defence or defence of a third party where the act is deemed reasonable and necessary: Reiman v Ningisere [2011] PGNC 209; N4531.

43. The defendant claims that it was the plaintiff who perpetrated assault upon him. In evidence he deposes that he politely asked the plaintiff to cease from uttering the rude profanities but that the plaintiff reacted by pointing and pushing his pointer finger at his chest.

44. He also deposed in his affidavit evidence that he felt threatened by the plaintiff’s action and in fear he admitted to taking reasonable steps to prevent the plaintiff from continuing the physical and verbal abuse against him.

45. The action he undertook is the subject of my scrutiny based on the competing evidence of the parties.

46. Here is a 71-year-old man making rude profanities and pointing and pushing at the 37-year-old defendant’s chest. I must satisfy myself as to whether the act of pointing and pushing of the plaintiff’s pointer finger at the defendant’s chest is an assault or an act giving reasonable apprehension of an application of physical contact or harm or fear to the defendant, thereby justifying the defendant to act in self defence.

47. The act of self defence by the defendant was to take reasonable steps to prevent the plaintiff from continuing the physical and verbal abuse against him. The defendant took step to knock the plaintiff from the stool he was sitting down to the floor and dragged him by the shirt towards the door. It is not justified and is disproportionate to the action and gesture towards the defendant by the plaintiff.

48. I consider the cross examination of the plaintiff by the Counsel for the defendant in light of the rule in Browne v Dunn (1893) 6 R. 67, H. L. that basically entails that a cross examiner cannot rely on evidence that is contradictory to the testimony of the witness without putting the evidence to the witness in order to allow them to attempt to justify the contraction.

49. The rule is necessary both to give the witness the opportunity to deal with the other evidence or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn, see Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1, p.16.

50. As regards the main claim of assault, the defendant’s counsel failed to put to the plaintiff at cross examination that:

(i) the defendant did not cause the plaintiff to fall nor was it put to the plaintiff in cross examination that the defendant’s actions were unintentional.

(ii) the allegation that the defendant acted in self-defence.

51. In the end the plaintiff’s versions of the incident at the Aviat Club by which the plaintiff was held by the shirt, thrown to the floor, and dragged towards the Aviat Club door, intact and is clear physical assault.

Order

52. According, the order of the Court will be:
    
    1. The defendant is liable to the plaintiff for the tort of assault.
    2. Damages will be assessed.
    3. Cost follow the cause and is to be paid by the defendant.
    4. Time is abridged to the time of settlement of the Order.
       

Ordered Accordingly

__________________________________________________________________

Fiocco & Nutley Lawyers: Lawyers for the Plaintiff
Goodwin Bidar Nutley Lawyers: Lawyers for the Defendants