Brown v Eremin - [2011] SADC 160

District Court of South Australia
(Civil: Minor Civil Review)
BROWN v EREMIN
[2011] SADC 160
Judgment of His Honour Judge Stretton (ex tempore)
6 October 2011
TORTS - TRESPASS - TRESPASS TO THE PERSON - ACTION FOR DAMAGES
The plaintiff sued the defendant for assault and battery before a magistrate. The magistrate dismissed the claim in part on the basis that no medical evidence had been provided. In fact a medical report documenting the plaintiff’s injuries had been tendered on the first day of hearing.
Held: The trial before the magistrate miscarried as the magistrate overlooked relevant medical evidence. Trial re-heard. Plaintiff’s evidence preferred to the defendant’s. Judgement entered for the plaintiff for $1,637.

BROWN v EREMIN
[2011] SADC 160

This is a minor civil review. It is an application to the District Court in its statutory jurisdiction to review the finding of a magistrate. The original claim is a civil claim for assault by Mr Brown against Mr Eremin.
The hearing before the Magistrate
In the summary court affidavits were filed and both parties gave evidence before a magistrate. The hearing occurred over some time and there were some delays between hearing days. Ultimately the magistrate delivered judgment on 27 April 2011. She summarised the evidence given by each party. She said that there was no medical evidence called by Mr Brown that he suffered any injuries. That was an error. Mr Brown had tendered a medical report as to his injuries. It may have been overlooked as it had been tendered early in the proceedings.
The magistrate said that the plaintiff had to establish on the balance of probabilities injury as a result of the assault upon him. The magistrate was not satisfied on the balance of probabilities that had been made out. That was in part, as I read her judgment, based on her belief that there was an absence of medical evidence. That was an error. Accordingly the decision miscarried.
Re-hearing required
As much depends on credibility, it is not possible to resolve the matter on the papers. I have therefore re-heard the matter.
Each party agreed that I take into account all evidence called and tendered before the magistrate, and all material filed both in the summary court and here. A number of affidavits with annexures were filed both there and here. Each party gave evidence on oath before me. The plaintiff called two witnesses as well.
The evidence
The plaintiff Mr Brown gave evidence today. He said that on the day in question, 30 March 2010, he was walking his dogs at about 6.30 in the evening. One of his dogs walked over towards a nearby fence, whereupon a cat ran across the road into the defendant Mr Eremin’s yard. Mr Brown’s dog, a small Jack Russell, followed the cat into Mr Eremin’s yard. Mr Brown gave evidence that he followed to retrieve his dog. He said that when he entered Mr Eremin’s yard he saw Mr Eremin kicking and hitting his dog. He says he asked Mr Eremin to stop and approached Mr Eremin to grab and remove his dog. He said his other dog was there as well at that time. I presume that the second dog followed Mr Brown in when Mr Brown entered Mr Eremin’s yard.
Mr Brown said that as he was grabbing his dogs and putting leads on them Mr Eremin started hitting him with a stick. He then tried to stop Mr Eremin by grabbing the stick and somewhat of a struggle ensued. Eventually he got the leads on his dogs and went to lead them out of the premises. He says he felt a sharp painful bang on his back. He says he looked around and saw that Mr Eremin was holding large hedge clippers. He conceded in answer to my questions that he assumed that it was the hedge clippers that hit him, although he did not see that happen. It could have been the stick.
Mr Brown says he took his dogs out of the yard. He went across the road and rang the police. He said he had cuts and injuries to his hand and a scratch to his back although that did not require any treatment.
Mr Brown went to hospital for treatment.
A medical report from the Wakefield Emergency Centre dated 31 March 2010 was provided. Dr Goodyear has recorded Mr Brown’s attendance that day. Mr Brown gave a history to Dr Goodyear. He said there had been an assault on 30 March and he was struck by a stick over his head and chest. His main concern was pain over his ring and little finger on his right hand. The skin was intact and the observations were that he was stable. The hand was neurovascularly intact. There was swelling over the fourth MCP joint but the skin was intact as well. The hand was X-rayed and there was no fracture. The assessment was STI which I interpret to mean soft tissue injury. Mr Brown was reassured and given painkilling medication by Dr Goodyear.
Mr Brown also called Mr Khan, a neighbour, to give evidence. Mr Khan said he was standing on his verandah nearby, having a cigarette. He said he heard a male voice yelling out. He said he looked up and saw Mr Brown looking for his two dogs.
Mr Khan said the dogs were in the cemetery at the time and indeed they looked like the two Jack Russells in the photos that are before this Court. Those photos picture Mr Brown with his two small Jack Russell dogs. Mr Khan said he pointed out to Mr Brown where the dogs had gone. He said Mr Brown acknowledged him. Mr Khan said he saw Mr Brown go into premises after the dogs but he cannot recall seeing the dogs after that. At that stage Mr Khan went back inside his own house.
Mr Khan said he then heard raised voices and went back out. He saw Mr Brown with a raised voice calling Mr Eremin a Nazi and a Hitler and so forth. He said at that stage Mr Brown was crossing back towards the cemetery with his dogs. He was walking away from Mr Eremin’s property. He said Mr Brown was saying call the police, or something along those lines, or at least there was some reference to the police in what Mr Brown was saying.
Mr Khan said that he has not seen anyone harassing Mr Eremin in the area but he did say that there had been high speed chases and people being arrested and trouble, mainly from young offenders, in that street. He was not aware of anyone targeting Mr Eremin.
Finally Mr Khan said that he had incurred a $12 parking fee for coming to court and may be out of pocket for the time he spent in court, although he was not sure whether that would be the case. He said he was able to return to work today after the court hearing and so I conclude it is unlikely that Mr Khan will be out of pocket for his attendance here. If anything, it may be an hour’s work time.
Mr Brown then called First Class Constable Perry, currently stationed at Woodside. As at March of last year, Constable Perry was at Holden Hill Patrols and was tasked to attend a disturbance in Warwick Street, relating to this incident.
The officer, with reference to his notes, gave evidence that he arrived in Warwick Street with his partner. On arrival he saw Mr Brown on the right hand side of the road, with his two dogs; he saw Mr Eremin on the left-hand side of the road with distinctive silver hedge clippers. The officer also identified the photo of the two Jack Russells that has been provided to the court as the dogs he saw on the day; he has a memory in particular of the older one, as he recalls Mr Brown indicating his fondness for the older dog. He said there weren’t any larger dogs about, that he could see.
The officer spoke to Mr Brown; he also spoke to Mr Eremin and asked Mr Eremin to place the hedge clippers down, which Mr Eremin did. He saw hedge clippings consistent with Mr Eremin having been doing hedge clipping. He spoke to Mr Brown, who he assessed as being in shock and distress at the time.
Mr Brown told Constable Perry that at about 6.20pm he was walking his dogs through the cemetery; they got away from him and ran into the Street. He went to grab them and they ran across the road into a residential property. He watched as a male at that address began hitting the two dogs. Mr Brown ran onto the property to get the dogs; the male attacked Mr Brown with a stick. Mr Brown came out into the street after getting the dogs. As he was leaving, he said the male attacked him with the hedge clippers.
Then Constable Perry took a more detailed statement from Mr Brown at 6.38pm. The statement is in the first person: ‘I am giving this statement to Constable Lucas Perry at about 6.38pm on Tuesday, 30 March 2010. I was walking my two dogs at the Enfield Cemetery this evening. At about 6.20pm my dogs took off from me and ran up to Warwick Street. I found them next to the street before they ran off again into an address of [address given]. As I went into the yard to retrieve them, a male who I have never seen before was clearly seen attacking my dogs. I watched as he was hitting them and hitting them with a stick. I went to grab the dogs and retrieve them in order to leave. As I was doing this we were both yelling at each other; twice he hit me with a stick. I am not sure where, but I have cuts to both of my hands. I finally got hold of the dogs and left the property as quickly as I could. As I came out of the driveway I felt a sharp pain in my back. I looked around and saw the male holding a long set of silver hedge clippers; I got to the other side of the road and called police. I would describe the male as Eastern European, about 50 years old, lean build, about six foot tall and fit for his age. He was in a long black shirt, shorts and running shoes. The hedge clippers were about 1.5 m long and silver in colour, and the blades were at a 90 degree angle. I did not give anyone permission to assault me in any way; I am willing to go to court.’
There is also a note in the police records of a dot point conversation with Mr Eremin; that dot point conversation indicates that Mr Eremin told police that he heard the victim calling out ‘Bob’, and saw a dog at the rear of the yard. He told the male to get out several times, there was a verbal confrontation. He picked up a stick and there was a tug of war, and the victim backed off. As the victim walked out of the driveway with the dogs, the subject hit him in the lower leg (calf). Mr Eremin denied hitting Mr Brown with the hedge clippers.
Mr Eremin was charged by police with aggravated assault and carry offensive weapon.
The police incident report and the police apprehension report also tendered, also reflecting those versions of events.
Then Mr Eremin gave evidence; he said he was clipping the hedge at about 6.30pm on the day. He heard someone repeatedly calling out ‘Bob’. He had heard that some time earlier, in January of that year. Some trouble had occurred in the street on that earlier occasion. He was concerned at hearing ‘Bob, Bob’ called out again; he therefore went inside, he said, to let the person pass. There had been a lot of trouble in the area and he thought he would just go inside and let that person pass.
He said he saw a dog under his kitchen window. A year before a dog had come on to his property and killed his cat, so he was concerned. He decided he would go and shoo off the dog; he went outside, got a stick and said he was shooing it off. The dog was in the front yard; he waved the stick at the dog and it left.
He said he did not really hit the dog. When I asked him what he meant by that, he said he did not hit the dog. Then he said he did not hit the dog as far as he could recall. After the dog left he said ‘this gentleman’ referring to Mr Brown, walked into his front drive. He said Mr Brown said ‘I am going to get you for assault’; at that stage the dogs had gone and were nowhere to be seen.
Mr Eremin said that he told Mr Brown to get out and that Mr Brown was trespassing, and he told Mr Brown that the dogs had gone. Notwithstanding this, Mr Eremin said that Mr Brown kept advancing on him. Mr Eremin picked up another larger stick and each advanced towards each other. He said Mr Brown grabbed hold of the stick and at some stage was going to throw a punch at him. He said Mr Brown waved his fist at him to punch him, although he never did. He said that he pushed at Mr Brown with his right foot, then Mr Brown turned to walk off. He says he gave Mr Brown a whack on the right calf with the stick as he walked off. At a later stage he said that whack was just what you would do to punish a child who had wrongfully come on to the property.
Mr Eremin said he did not know how or why or where Mr Brown had injured his fingers; he said perhaps Mr Brown had deliberately done that on the barbed wire fence back over the road. He said that Mr Brown had no reason to come onto his property. He said he hadn’t hit Mr Brown’s dogs and indeed they had gone; he said he couldn’t understand why Mr Brown came into his property.
Mr Eremin said he went back to clipping his hedge; he heard a lot of abuse from over the road, that he was a Nazi and so forth, and that was the end of the events.
In cross-examination, Mr Brown put to Mr Eremin that Mr Khan had given evidence corroborating Mr Brown that Mr Brown had taken his dogs out of Mr Eremin’s yard, and Mr Eremin did not have any substantial further comment to make about that.
I have carefully considered all the evidence given. I have reviewed the police documents that were tendered. I have reviewed the materials on file. I have noted the affidavit material provided. I have noted the medical evidence called.
Discussion
In the final analysis, the plaintiff says the events of the evening happened in one way; Mr Eremin says they happened in another way.
I take into account that the events all happened very quickly. They were sudden and unexpected, for each party. In such circumstances there may be a degree of natural difference in recollection. That cannot however fully explain the conflict between the witnesses. Mr Brown says that he was struck a number of times and then struck on the back as he left; Mr Eremin says he did brandish the stick and he did kick at Mr Brown but that he only hit Mr Brown with the stick once on the calf as Mr Brown left. Both versions cannot be true.
In the final analysis, the version of events given by Mr Brown rings truer than the version of events given by Mr Eremin.
I find it inherently unlikely that if Mr Brown’s dogs had simply been shooed off without being hit and had already left the property that Mr Brown would have come in in those circumstances, and approached Mr Eremin, threatening him and raising his fist to assault him, as asserted by Mr Eremin.
I also take into account that Mr Eremin thought he was perfectly entitled to strike Mr Brown as he was leaving the property when there was plainly no threat to him at that stage. Mr Eremin refused to accept that it is simply illegal to do that, even when the court made the law very clear to him. Mr Eremin did not accept that you are only allowed to use reasonable force to prevent an actual attack on yourself or use reasonable force to remove someone from your property who is refusing to leave, nor that when a person is not approaching you but is leaving the property there is absolutely no justification to be hitting them.
In the final analysis, I prefer Mr Brown’s evidence to that of Mr Eremin in relation to the events of the day.
Findings of fact
Accordingly, I find on the balance of probabilities that Mr Brown did see his dog run into Mr Eremin’s the front yard. I find that Mr Brown did see Mr Eremin kicking at and hitting at his dog. I find that Mr Brown asked Mr Eremin to stop and went to get his dogs and was struck by Mr Eremin with the stick in the course of that. Whether Mr Eremin was still waving it around to get the dogs out of the premises or whether he was doing that to get Mr Brown off his property, is unclear.
I find that Mr Brown got his dogs under control and was leaving but notwithstanding that, Mr Eremin struck him again.
Mr Eremin says it was on the legs; Mr Brown says it was on the back. On balance, for the reasons I have earlier mentioned, I prefer Mr Brown’s evidence. Mr Brown did concede that whilst he thought he was hit with the hedge clippers on that occasion, as he turned around and saw Mr Eremin holding the hedge clippers, it is possible that he was hit with the stick. I find it was more likely to be the stick, as that was the weapon that Mr Eremin was primarily brandishing and waving about. If Mr Brown had been hit with hedge clippers, I think on balance his injuries would have been considerably more severe. I refer to the photographs of the very substantial hedge clippers that have been provided.
Accordingly, I find that on the balance of probabilities that Mr Eremin did assault and batter Mr Brown. I find on the basis of Mr Brown’s evidence, supported as it is by the medical report I have referred to, that in the course of the assault and battery Mr Brown’s hands were injured in the way he described and that he suffered a scratch and pain to the back.
Mr Brown does not seek general damages. He seeks reimbursement of his medical costs and loss of wages, together with his filing fees in the Magistrate’s court and this court.
Mr Brown’s medical costs were $235. He is a temporary relieving teacher. He is only paid for days worked. He was off two days work through injury, at $285 a day. He has also lost three days coming to court. One of those days was a school holiday where he was not eligible to work.
Accordingly, I find on the balance of probabilities that the plaintiff has established an assault and a battery. Both are torts. Assault and battery are committed by a physical act by a defendant which directly interferes with a person, in this case the plaintiff, where the defendant either intended the act or should have foreseen the result of it.
I find that there was no basis for Mr Eremin to take any of the physical acts he took against the plaintiff, even the actions he claims he took on the basis of self-defence. Self-defence does not entitle you to approach somebody and engage in a fight with them. Mr Eremin could have simply walked back to his house and repeated his request that Mr Brown leave, and if that failed, gone inside and called the police. There was absolutely no basis for him to strike Mr Brown at any stage, and particularly not to strike him as he left the property. Mr Eremin is, on the material presented to me, quite lucky that the police did not ultimately pursue the assault charge against him.
I find that the assault and battery to Mr Brown had a material effect on him, in terms of the injuries, pain, upset and shock he suffered.
Conclusion
Accordingly, I find for the plaintiff. I assess damages in the following way: $1140 for four days lost income, that is, for two days off injured and two of the three days time off attending court. I award $235 for medical expenses incurred by the assault and $250 towards filing and other court fees, which according to my calculations is $1625. I also allow $12 costs, which is the parking fee that Mr Khan incurred, which he is entitled to recover from Mr Brown.
Accordingly, judgment is entered for the plaintiff for the sum of $1637.
Neither side has incurred any legal costs.