Keywords
Torts – Interference with the person – Trespass to the person – Assault – Battery – Liability-only trial – Multiple wrongdoers, proportionate liability and contribution – Joint wrongdoers – Evidence – Admissibility – Hearsay
Facts
The Plaintiff was a long-standing, licensed motor dealer and valuer, and operated a wholesale car yard business. He was 68 years old at the material time and was 75 at the time of the hearing. The first Defendant was the son of the second Defendant.
The first Defendant purchased a used van from the Plaintiff’s business in February 2017. The first Defendant encountered issues with the van despite at least three attempts at repairs over the months following the purchase.
In the lead-up to one such occasion for repairs on 8 July 2017, the first Defendant again brought the car back to the business and the advice of the mechanic on this occasion was that there was a blown head gasket, and the cost of the repairs was in the order of $4000. At all material times heretofore the first Defendant was dealing with a licenced motor dealer working within the business, Mr De Marco.
On 8 July 2017, which was a Saturday, the Plaintiff arrived at the yard for unrelated matters. De Marco arrived shortly thereafter followed by the Defendants’ arrival. De Marco and the Defendants went to inspect the van together. De Marco then went over to the Plaintiff to ask for assistance and the Plaintiff came over to the van and introduced himself to the Defendants. There was no dispute that this was the first time the Plaintiff and the Defendants had ever met or spoken to each other.
At trial, the Plaintiff and De Marco gave evidence that the second Defendant became aggressive and that they were manhandled by the second Defendant in a tussle for the keys of the van and the Plaintiff was (on at least one occasion) pushed into a garage wall. De Marco gave evidence that he was pushed by the first Defendant.
The Defendants gave conflicting evidence that the Plaintiff was aggressive and fell to the ground in the process of grabbing the keys for the van.
After this initial confrontation, there was no dispute that the Plaintiff retreated to his nearby truck and that the second Defendant pursued him.
The second Defendant gave evidence that there was no physical confrontation at the truck, however, the Plaintiff gave evidence that he was pulled out of the cab of the truck to the ground and there was an extended assault.
The Plaintiff gave evidence that the injuries he suffered were as a result of the fall from the truck and the extended assault by the second Defendant.
The medical evidence was that the Plaintiff suffered a significant shoulder injury which ultimately required surgery and PTSD, anxiety and depressive mood following the entirety of the events of 8 July 2017.
Decision
Porter KC DCJ , decision delivered on Monday 8 April 2024. His Honour found that the Plaintiff established that the Defendants committed the torts of assault and battery as described in the findings of the Judgment.
Ratio
The Court was satisfied that the actions of the second Defendant at the van (pushing the Plaintiff against a garage wall) amounted to a battery of the Plaintiff by the second Defendant. Further, the Court found that the physical altercation at the truck resulting in the Plaintiff being pulled out of the cab and onto the ground amounted to an assault and battery by the second Defendant of the Plaintiff.
The Court went on to consider the accessory liability of the first Defendant and considered the principles as enunciated in Thompson v Australian Capital Territory Pty Ltd (1996) CLR 574 and the guidance as to how these principles are to be applied in Pringle v Everingham (2006) NSWCA 195, concluding that it was established on the evidence that the first Defendant and the second Defendant participated in a common design to obtain the key from the Plaintiff and are jointly liable for that battery.
His Honour was also persuaded that that common design extended to the second Defendant’s battery of the Plaintiff by shoving him into the garage wall. His Honour accepted De Marco’s evidence that the struggle for the key and the shoving of the Plaintiff, including into the wall on at least one occasion, was part of a single melee in which the first Defendant also came into contact with De Marco.
Having embarked on the struggle for the key, and having continued involvement in it, at least by barging into De Marco in the course of a single melee and not withdrawing from the scene to signal his abandonment of the struggle with the Plaintiff, his Honour found that the first Defendant was jointly liable with the second Defendant for the battery on the Plaintiff when he was pushed into the garage wall by the second Defendant.
Accordingly, the Court found the Defendants jointly liable for the assault and battery involved in the struggle for the key and subsequent pushing of the Plaintiff into the garage wall and the threatening words used by the second Defendant during that struggle. However, the Court found the second Defendant alone liable for the assault and battery comprised in his pursuit of the Plaintiff to the Truck and his actions there.
The Court found that the Plaintiff made out the liability of the Defendants with quantum and apportionment of damages and costs to be determined at a later date.
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