Cosgrove v Culloton
[2014] WADC 146
•23 OCTOBER 2014
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: COSGROVE -v- CULLOTON [2014] WADC 146
CORAM: GOETZE DCJ
HEARD: 1-3 SEPTEMBER 2014
DELIVERED : 23 OCTOBER 2014
FILE NO/S: CIV 777 of 2012
BETWEEN: GEOFFREY GRANT COSGROVE
Plaintiff
AND
JEFFREY MICHAEL CULLOTON
Defendant
Catchwords:
Claim for damages for assault and battery - Assessment of damages - Turns on own facts
Legislation:
Civil Liability Act 2002
Criminal Code Act Compilation Act 1913
Criminal Code
Evidence Act 1906
Result:
Judgment for the plaintiff in the sum of $107,432
Representation:
Counsel:
Plaintiff: Mr H C Quail
Defendant: No appearance
Solicitors:
Plaintiff: Bradley Bayly Legal
Defendant: In person
Case(s) referred to in judgment(s):
Briginshaw v Briginshaw (1938) 60 CLR 336
Deputy Commissioner of Taxation v Robinswood Pty Ltd (2001) 24 WAR 284
May v Thomas [2014] WASCA 176
GOETZE DCJ:
Introduction
The plaintiff, Geoffrey Grant Cosgrove, has pleaded that at about 2.30 am on 12 April 2009, at a wedding at the premises known as 'Grand View Farm' on Midlands Road, Three Springs, the defendant, Jeffrey Michael Culloton, 'committed battery upon [him] by pushing him to the ground and punching him approximately three times to the face and head'.
Mr Cosgrove has pleaded that, as a consequence of the alleged battery, he suffered injury, loss and damage. Mr Cosgrove also alleges that his injuries were caused by Mr Culloton's negligence.
By his defence, Mr Culloton has denied the alleged battery and negligence. He has further denied that Mr Cosgrove is entitled to the relief sought by him.
The defence also alleges that Mr Cosgrove was intoxicated, directed offensive and insulting remarks at Mr Culloton and further, that Mr Cosgrove challenged Mr Culloton to a fight and struck him with a beer bottle. Mr Culloton has pleaded that he acted in self‑defence, that Mr Cosgrove was contributorily negligent in causing his own injuries and that he voluntarily assumed the risk of being injured.
The primary issue therefore is whether the incident occurred as alleged by Mr Cosgrove, and if so, the quantum of damage, if any, to which Mr Cosgrove is entitled in respect of any injury, loss and damage suffered as a consequence thereof. Other issues include the defences pleaded by Mr Culloton.
The Civil Liability Act (2002) does not apply to the common law claim concerning an alleged trespass to the person and battery by reason that, if it is established, it was an unlawful act done with an intention to cause personal injury as set out in item 1(a) of the table to s 3A Civil Liability Act.
Geoffrey Cosgrove
Mr Cosgrove was born on 4 April 1984 and was, at all material times, a farmer at Mingenew, near Three Springs. It was his brother's wedding at which the incident is alleged to have occurred.
Mr Cosgrove, then aged nearly 25 years, attended the wedding with his then fiancé, Fiona, whom he later married in October 2009.
Jeffrey Culloton
Mr Culloton attended the wedding as the husband of Geoffrey Cosgrove's aunt, and she, in turn, is the younger sister of Geoffrey Cosgrove's father. Mr Culloton is therefore Mr Cosgrove's uncle by marriage. Mr Culloton is 10 to 15 years older than Mr Cosgrove.
It seems that Mr Culloton was previously a farmer at Mingenew. However, prior to the wedding, he sold his farm and moved to Floreat Park, in suburban Perth.
The wedding
About 180 people attended the wedding. The reception thereafter started around 4.00 or 4.30 pm and was conducted in a shearing shed on the farm. Music was played in the shed. Alcohol and food were provided. After dark, floodlights lit the area surrounding the shearing shed so as to assist people who may have been going to the toilet, or who may have required to find their cars, or who may have just been talking outside the shed away from the music.
The standard of proof
This is not a criminal prosecution in which it is necessary for Mr Cosgrove to prove the alleged assault and battery beyond reasonable doubt. Rather, this is a civil claim for damages for personal injury. Mr Cosgrove is therefore only required to prove that it is more likely than not that the incident occurred as alleged by him. It is a serious allegation. Therefore, regard must be had to the dicta of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336, 361 that:
… at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency. … This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained.
Further, because it is a civil trial, it is for Mr Culloton to prove, on the civil standard, the defences raised by him against Mr Cosgrove, including self‑defence.
Mr Cosgrove attended at the trial, together with his witnesses, who each gave evidence.
Mr Culloton was present at the listing conference on 17 March 2014 when the trial dates were set for this action. Since that time, he has been involved in handling this action in his own defence. However, Mr Culloton did not attend at the trial, either in person or by counsel. No evidence was called at trial on his behalf. Numerous telephone calls by court staff were made to Mr Culloton on the morning the trial commenced, on the afternoon of the first day of trial, and on the morning of the second day, but such calls were not answered.
Self-defence under the Criminal Code
In May v Thomas [2014] WASCA 176, Martin CJ said:
20.Section 5 of the Criminal Code Act 1913 (WA) provided as follows:
When, by the Code, any act is declared to be lawful, no action can be brought in respect thereof.
Except as aforesaid, the provisions of this Act shall not affect any right of action which any person would have had against another if this Act had not been passed; nor shall the omission from the Code of any penal provision in respect of any act or omission, which before the time of the coming into operation of the Code constituted an actionable wrong, affect any right of action in respect thereof.
21.It is well established that this section provides a defence against civil proceedings brought in respect of an act which is declared by the Criminal Code to be lawful. It is also established that the section does not otherwise alter the common law, so that defences available at common law are unaffected. To put it another way, if an act is declared lawful by a provision of the Criminal Code, the effect of s 5 of the Criminal Code Act is to provide a statutory defence in addition to any existing common law defences.
Self-defence relied upon by Mr Culloton under s 248 of the Criminal Code, as it then applied, provided as follows:
248.Self-defence against unprovoked assault
When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, provided that the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm.
If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous bodily harm, it is lawful for him to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm.
An 'assault' is defined in s 222 of the Criminal Code as follows:
222.'Assault', definition of
A person who strikes, touches, or moves, or otherwise applies force of any kind to the person of another, either directly or indirectly, without his consent, or with his consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that other person, and the act is called an assault.
The term 'applies force' includes the case of applying heat, light, electrical force, gas, odour, or any other substance or thing whatever if applied in such a degree as to cause injury or personal discomfort.
Following Martin CJ in May v Thomas [25], for Mr Culloton to successfully invoke self-defence as provided by s 248 of the Criminal Code, it is necessary for him to establish that:
(a)Mr Cosgrove unlawfully assaulted Mr Culloton;
(b)Mr Culloton did not provoke that assault;
(c)the force used by Mr Culloton was reasonably necessary to make an effectual defence against the assault; and
(d)the force used by Mr Culloton was not intended, nor was it such as was likely, to cause death or grievous bodily harm or, if it was, the nature of Mr Cosgrove's assault was such as to cause reasonable apprehension of death or grievous bodily harm, and Mr Culloton believed, on reasonable grounds, that he could not preserve himself from death or grievous bodily harm otherwise than by using the force which he used.
Self‑defence at common law
Martin CJ also said in May v Thomas:
37.Self-defence at common law was succinctly described by Wilson, Dawson & Toohey JJ (in Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26; (1987) 162 CLR 645, 661):
[T]he law of self-defence requires no set words or formula. The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did.
38.The defence was explained in the civil context by the Court of Appeal of Victoria (in Watkins v Victoria [2010] VSCA 138 [71] ‑ [72]):
There are two elements to this test. In the context of a civil proceeding, the defendant must have believed at the time when he committed the relevant act that what he was doing was necessary; and that belief must have been based on reasonable grounds. The second element does not involve a test about what a hypothetical reasonable person might have believed in the circumstances, but rather whether the defendant had reasonable grounds for his belief, in the circumstances as he perceived them to be.
In determining whether the defendant believed that the force used was necessary, consideration should be given to the fact that a person who has reacted instantly to imminent danger cannot be expected to weigh precisely the exact measure of self defensive action which is required.
Again, following Martin CJ in May v Thomas [39], for Mr Culloton to establish self‑defence at common law, it is necessary for him to establish that:
(a)Mr Cosgrove assaulted Mr Culloton;
(b)Mr Culloton believed that the force which he used was necessary in order to defend himself from Mr Cosgrove's assault; and
(c)Mr Culloton had reasonable grounds for that belief, in the circumstances as he perceived them to be.
The incident
Five witnesses gave evidence about the alleged incident.
Geoffrey Cosgrove
Mr Cosgrove said he is presently 178 cm tall and 87 kg in weight. He said that Mr Culloton was a similar height to himself, but probably slightly heavier. The two had previously played in the same cricket team together. They would see each other socially and generally had a friendly relationship. Mr Cosgrove said there was no history of animosity or aggression between them.
At around midnight, or perhaps a bit later, on the night of the wedding, Mr Cosgrove was standing and talking with a group of people, outside the shearing shed. Present in this group were his then fiancé, Fiona; his younger brother, Andrew, his father's sister and her husband, Mr Culloton. Mr Cosgrove had not seen Mr Culloton for about the previous year since he sold his farm and moved to Floreat Park.
Mr Cosgrove said that he and Mr Culloton moved away from the group in which they had been talking. Mr Cosgrove could not recall exactly why they moved away from the group or what they were speaking about before doing so, but his mood was cheerful.
After moving away, Mr Cosgrove next remembers laying on his back on the ground, with Mr Culloton above him. Mr Culloton then punched him in the mouth and teeth. It was a heavy blow. Mr Cosgrove tried to turn his head away, but he received two further punches to the right side of the head above the ear from Mr Culloton's left fist. These were heavy blows. Mr Culloton's right arm was on him.
Mr Culloton was then pulled away by his wife and Mr Cosgrove's younger brother, Andrew.
When Mr Cosgrove got to his feet, he felt his mouth and realised that four of his teeth were missing.
Mr Cosgrove did not remember that either he or Mr Culloton had anything in their hands.
Fiona Cosgrove
Mrs Cosgrove gave evidence that she was with her then fiancé and Mr Culloton in the group which had been talking about the effect of weather upon crops. There was no animosity between Mr Cosgrove and Mr Culloton. The two men walked away from the group, towards the cars. When they were about 5 m from the group, Mr Culloton put his arm around Mr Cosgrove and they continued to walk a bit further. Mrs Cosgrove then turned away momentarily. When she turned back, she saw that Mr Cosgrove had his hands up. He was pushing Mr Culloton away from himself as Mr Cosgrove walked backwards and Mr Culloton moved forwards.
When Mr Cosgrove and Mr Culloton were approximately 10 m from the group, Mr Culloton grabbed Mr Cosgrove in a bear hug, pinned Mr Cosgrove's arms to his side, lifted him off the ground and spear tackled him into the ground, head first. Mr Culloton then pinned Mr Cosgrove to the ground with his left hand on Mr Cosgrove's chest holding him down and his knees on the ground on either side of Mr Cosgrove's body, whilst Mr Cosgrove lay on the ground, face up.
Mrs Cosgrove said she next saw Mr Culloton punch Mr Cosgrove three times with his right hand. She said these were very quick, hard blows and that one definitely hit Mr Cosgrove's face. There were two others that hit him on the left side of his head.
Mrs Cosgrove said that Mrs Culloton then ran to the two men, pulled Mr Culloton off and dragged him away to their car. They then left the wedding.
Mrs Cosgrove then observed Mr Cosgrove to be bleeding from his mouth and she noticed that some of his teeth had been snapped off.
Mrs Cosgrove gave evidence that she had not seen any aggression or animosity in her husband that evening. He does not become aggressive and abusive when drunk.
Anthony Lennard Crossland
Mr Crossland is a farmer from Corrigin. He attended the wedding, but he did not know either Mr Cosgrove or Mr Culloton.
When the incident occurred, Mr Crossland was seated in his motor vehicle facing the side of the shed.
As he sat in his car, Mr Crossland turned on the windscreen wipers as there had been some dew. He saw two men coming towards him. They looked like they were having a good time. He did not recognise these men, but they were approximately 30 m from him. Mr Crossland then directed his attention to starting his car's engine and when he looked back towards the two men whom he had previously seen, he noticed that one of them was on his back on the ground. The other man was bending over the man on the ground and acting in an aggressive manner. He was bent at the waist, but standing, and made contact with his hand to the head of the man on the ground. He could not see whether it was an open or closed fist and he was not able to say which arm it was that made contact. He only saw one such contact. He did not see the reaction of the man on the ground.
Mr Crossland said that a crowd then gathered around the two men. He thought the situation was under control and that the man who had been bending over the other man walked away to another group of people not far away. Mr Crossland had nothing further to do with them.
John Anton Koric
Mr Koric is a farmer at Allanooka, between Geraldton and Mingenew. He has been farming there for 30 to 35 years.
Mr Koric previously played football with Mr Cosgrove, whom he has known since Mr Cosgrove's birth, and he had also played football with Mr Culloton. He too attended the wedding and is a friend of the parents of both the bride and groom.
Mr Koric said that after midnight, he saw a group of people outside the shearing shed. The area was lit. He saw Mr Cosgrove and Mr Culloton move away off from a group of people in which they had been standing. It was that movement which attracted his attention to them. He was standing about 5 m away from them. He saw them walk together, as if they had their arms around each other. It seemed to be very friendly. He could not be definite about the two men's arms, but he said it was a totally friendly situation which quickly turned to a severe bashing after the two men 'pirouetted'.
Mr Culloton had control and Mr Cosgrove went to ground. When he was about half way to the ground, Mr Culloton punched Mr Cosgrove, but Mr Koric did not see where that punch landed. It was a left handed punch. He was not able to describe the force of that punch. Then, when Mr Cosgrove was on the ground, Mr Culloton executed a further punch to Mr Cosgrove's face whilst he was crouched over towards Mr Cosgrove's torso. The punches were apparently aimed at Mr Cosgrove's face. He described the second punch as 'vicious'. There was no time for Mr Cosgrove to react. There was no retaliation or defence from Mr Cosgrove. Mr Culloton was then taken off to the side, but Mr Koric did not see where he went. He focussed on Mr Cosgrove and went looking for missing teeth, none of which were found.
Rodney Mark Cosgrove
Mr Rodney Cosgrove is the brother of Mr Cosgrove's father. He has known Mr Cosgrove all Mr Cosgrove's life and he has known Mr Culloton since 1977.
Mr Rodney Cosgrove attended the wedding and the reception afterwards, including around the shearing shed, which he said was a lit area.
Just after midnight, Mr Rodney Cosgrove saw his nephew Mr Cosgrove and Mr Culloton come past a group in which he and Mr Koric were both standing. He did not see from where they came, but when they were about 5 or 6 m away from Mr Rodney Cosgrove, Mr Culloton had his arm around Mr Cosgrove's shoulders. He had not seen any animosity between the two men either earlier during the evening or then at this time.
Mr Rodney Cosgrove looked away. He later looked back to Mr Culloton and Mr Cosgrove, who, by then, were approximately 18 or 20 m away from Mr Rodney Cosgrove. Mr Culloton was then hitting Mr Cosgrove, who was flat on the ground, face up. Mr Culloton was standing on his feet, crouched over Mr Cosgrove. Mr Culloton's knee was into Mr Cosgrove's 'back shoulder corner area'. Mr Culloton struck Mr Cosgrove twice on the right side of the nose/lip area using his left fist.
Mr Rodney Cosgrove saw two punches, one straight after the other. The first punch was not that powerful, but the second punch started with Mr Culloton drawing his arm back as far as it would go. He then struck Mr Cosgrove's mouth with a clenched fist. Mr Cosgrove was not fighting back.
Mr Rodney Cosgrove then proceeded towards the two men, but by the time he reached them, his sister had taken Mr Culloton away towards their motor vehicle. They then left the wedding.
Mr Rodney Cosgrove then assisted in the search for Mr Cosgrove's teeth on the ground.
Alcohol
Mr Cosgrove gave evidence that he had had about eight full-strength stubbies of beer at the wedding. He was in a cheerful mood.
Mrs Cosgrove said she had not consumed any alcohol. She did not know how many beers her husband had consumed, but she said that the only effect of alcohol upon her husband was to make him more chatty and happy.
Mrs Cosgrove also remarked that she had not seen any observable effects of alcohol upon Mr Culloton. She said that Mr Culloton was also fairly chatty and happy to talk.
Mr Crossland drank only one beer at the wedding, but he had had a few on the previous evening.
Mr Koric was required to give a speech at the wedding and so he only consumed one light beer before that speech. After that, he had some beers. He did not say how many. He considered himself to be sober at the time of the incident.
Mr Rodney Cosgrove gave evidence that he thought he had had not more than nine full-strength stubbies that evening. They had very little effect on him. He had consumed plenty of food that evening.
Findings
The witnesses as to liability saw the alleged incident from their respective different positions outside the shearing shed. They were not necessarily solely focussed on Mr Cosgrove and Mr Culloton.
It is to be remembered that the alleged incident occurred on 12 April 2009, which is now some 5 1/2 years ago. It is therefore appropriate that the delay from the alleged incident to trial be kept in mind, especially when assessing of the quality of the evidence in terms of memories being truthful, accurate and reliable before acting upon the evidence, or any of it.
Further, in this case, the function at which the alleged incident is said to have occurred was a wedding and some, but not all, witnesses at trial had been drinking alcohol which can adversely affect memory such that, ordinarily, it too, must be borne in mind. However, in this trial, there is no evidence to suggest that any witness had consumed such an amount of alcohol at the wedding that it might impact on any witness' ability to now relate the events of that evening in his or her evidence.
It can be expected there will be some differences in the respective accounts of witnesses. However, the evidence of each witness is largely consistent with, and supportive of, Mr Cosgrove's evidence.
On the evidence at trial, there is no suggestion of any animosity between Mr Cosgrove and Mr Culloton either earlier in the evening or whilst they were talking in their group of people. It seems they simply left this group and walked away.
Mr Cosgrove could not explain how he ended up on his back, but Mr Culloton was above him and he punched him.
Mrs Cosgrove did not drink alcohol that evening. She said after her husband and Mr Culloton walked away, her husband was walking backwards, had his arms up and was pushing Mr Culloton away. She did not give any evidence as to why her husband was doing this. Mr Culloton then grabbed Mr Cosgrove in a bear like hug and spear tackled him to the ground. Mr Culloton punched her husband with his right hand. This is contradicted by those witnesses, including her husband, who said that Mr Culloton's punches were with his left hand. This suggests that Mrs Cosgrove is mistaken in this aspect of her evidence. It perhaps shows that she and her husband did not rehearse their evidence together.
There is no evidence from either Mr or Mrs Cosgrove as to why Mr Culloton might have wished to assault Mr Cosgrove. Nothing had occurred during the evening to warrant that. Mr Cosgrove's mood was cheerful, chatty and he was happy to talk.
Mr Crossland is an independent witness, previously not known to either Mr Cosgrove or Mr Culloton. He had had only one drink that evening. There is absolutely no reason to reject Mr Crossland's evidence. He did not see how the incident started, but he saw Mr Culloton strike Mr Cosgrove with one blow when Mr Culloton was standing over Mr Cosgrove on the ground.
Mr Koric had a relationship with each of Mr Cosgrove and Mr Culloton. He was sober at the time of the alleged incident. He did not see any aggression between the two men. This is consistent with Mr and Mrs Cosgrove's evidence. Mr Koric could not explain how the fight started. He saw two punches from Mr Culloton to Mr Cosgrove's face. The first punch was when Mr Crossland was about halfway to the ground and the second punch occurred when Mr Cosgrove was on the ground.
The evidence from Mr Rodney Cosgrove was consistent with that of Mr Cosgrove and the other witnesses. Again, Mr Rodney Cosgrove did not see how the incident started. He saw Mr Culloton walking with Mr Cosgrove and subsequently, he saw Mr Culloton punch Mr Cosgrove twice, the second of which at least was a powerful blow. He also said that Mr Cosgrove was not fighting back. He was then flat on the ground.
Mr Koric said that the first punch was when Mr Cosgrove was halfway to the ground. This is not inconsistent with Mr Crossland's evidence that he only saw one punch. Otherwise, the evidence is that Mr Cosgrove ended up on the ground, face up, with Mr Culloton above him and that Mr Culloton then struck Mr Cosgrove to the face, with quick and forceful punches without Mr Cosgrove retaliating or attempting to defend himself.
The reason for Mr Culloton putting Mr Cosgrove on the ground and punching him has not been explained by evidence. On the evidence, there was no reason for him to do so.
The defence, in summary, pleads that Mr Cosgrove was intoxicated, holding a glass bottle of beer and that he directed offensive and insulting remarks at Mr Culloton.
The defence then alleges that Mr Cosgrove challenged Mr Culloton to a fight, pushed him and struck him in the stomach with his beer bottle. The defence alleges that Mr Culloton then, in self‑defence, struck Mr Cosgrove on the side of the head after Mr Culloton fell to the ground. Although not clear, there seems to be an inherent contradiction in that the defence also alleges that Mr Culloton sought to prevent Mr Cosgrove from striking him. He therefore grabbed hold of Mr Cosgrove's arm and fell on top of him when the parties lost balance, and in the course of so doing, Mr Cosgrove was injured.
The defence also pleads contributory negligence by Mr Cosgrove and that he voluntarily assumed the risk of being injured.
It should be observed that the defences were pleaded by Mr Culloton's former solicitor. No one attended at trial to give any evidence whatsoever in support of such defences. The pleadings are not evidence.
Given Mr Culloton's failure to attend at trial and call any witnesses to give evidence, it is appropriate to observe that s 97 of the Evidence Act 1906 provides that evidence in any civil or criminal proceeding can only be given on oath by any witness, subject to certain exceptions. None of those exceptions apply to Mr Culloton. Hence, if Mr Culloton desired to adduce any evidence at trial from either himself or other witnesses then, he and the witnesses needed to attend the trial, take the oath and give their evidence. Anything falling short of that is not evidence in this trial.
On the evidence, it can be found that there were direct, intentional acts by Mr Culloton against Mr Cosgrove. First, Mr Culloton forced Mr Cosgrove to the ground, and secondly, he followed this with at least one left handed punch, and more likely two, including to Mr Cosgrove's right jaw area. One of those punches occurred when Mr Cosgrove was half way to the ground.
There is ample evidence in this trial to find that it is more probable then not that either or both the grounding of Mr Cosgrove and the punching by Mr Culloton were intentional acts in the one continuum and that Mr Cosgrove suffered injury to his teeth as a result thereof.
The evidence of Dr Bradley Shepherd, prosthodontist, is that the injury to Mr Cosgrove's teeth was more likely to have been caused by punching rather than having been suffered in a fall and Mr Cosgrove's face striking the ground as a result of that fall. The reason for this was the absence of injury to Mr Cosgrove's lips and cheeks. There is no reason to not accept Dr Shepherd's evidence, such that the finding can be made that it was one or more of the punches which caused the injury to Mr Cosgrove's teeth.
Accordingly, it can be found that Mr Cosgrove suffered an assault and battery at the hands of Mr Culloton and that liability for Mr Cosgrove's injury to his teeth and his loss and damage has been established against Mr Culloton.
In any event, if the assumption is made that Mr Cosgrove acted as alleged in the defence and assaulted Mr Culloton, then by reason of Mr Culloton having been able to ground Mr Cosgrove, any threat to Mr Culloton must thereby have been abated. Mr Cosgrove did not retaliate as he fell to the ground or when he was flat on his back on the ground. He was in no position to so retaliate in either situation. The punches from Mr Culloton whilst Mr Cosgrove was either falling to the ground or was on the ground were therefore an unreasonable response to any aggression which Mr Cosgrove may have initiated. Mr Culloton could not have apprehended Mr Cosgrove to have been a continuing threat to him when Mr Cosgrove was either falling to the ground or flat on his back on the ground.
Further, there is no evidence from Mr Culloton as to his beliefs relating to the incident or as to the intention with which he carried out his actions that evening. His subjective intention can only be determined, in this case, by what Mr Cosgrove's witnesses described of the circumstances that evening and Mr Culloton's actions. This has been detailed above. The witnesses heard nothing of what Mr Culloton or Mr Cosgrove may have said to each other. Some grievous bodily harm was at least likely when Mr Culloton punched Mr Cosgrove in the mouth, or at least, Mr Culloton should have reasonably have foreseen that that might be the result of the force he used. There is no evidence that Mr Culloton had reasonable grounds to believe that he could not preserve himself from death or grievous bodily harm otherwise than by using the force he did.
Nor is there any evidence to support the claims that Mr Cosgrove was contributorily negligent in that he sought to intimidate Mr Culloton by being insulting and offensive towards him, as a result of which, Mr Cosgrove should have known that such behaviour would lead to an altercation between the two men as pleaded and further, that Mr Cosgrove should have appreciated the risk of injury to himself when he challenged Mr Culloton to a fight, pushed and struck Mr Culloton whilst holding a glass beer bottle and that this necessarily placed himself at the risk of injury. Reliance is made in the defence upon s 5L of the Civil Liability Act to the effect that it is to be presumed that Mr Cosgrove was contributorily negligent by reason of his intoxication. The evidence contradicts any suggestion that Mr Cosgrove was intoxicated and it cannot be found that he was.
Further, it is pleaded that Mr Cosgrove voluntarily assumed the risk of being injured. Again, there is no evidence as to this and Mr Cosgrove was not cross‑examined about it or any of the other matters raised in the defence.
There is evidence from Mrs Cosgrove that her husband pushed Mr Culloton in the chest as Mr Cosgrove walked backwards. That is all she said. It is equivocal in terms of self-defence in so far as both Mr Cosgrove and Mr Culloton are concerned. It does not prove self‑defence for Mr Culloton.
The evidence does not permit findings of self‑defence under s 248 of the Criminal Code that:
(1)Mr Cosgrove unlawfully assaulted Mr Culloton;
(2)even if such an assault, being Mr Cosgrove pushing Mr Culloton in the chest as Mr Cosgrove walked backwards or otherwise, be assumed, such assumed assault was not provoked by Mr Culloton;
(3)the force used by Mr Culloton was reasonably necessary to make an effective defence against any assault by Mr Cosgrove; and
(4)the force used by Mr Culloton was not intended, nor was it such as was likely, to cause death or grievous bodily harm to Mr Cosgrove, or if it was, then nature of Mr Cosgrove's assumed assault was such that Mr Culloton could have reasonably apprehended that he might suffer death or grievous bodily harm from such an assumed assault and that Mr Culloton subjectively believed, on reasonable grounds, that he could not preserve himself from death or grievous bodily harm otherwise than by using the force he used.
Further, evidence does not permit findings of self‑defence at common law that:
(1)Mr Cosgrove had assaulted Mr Culloton;
(2)even if an assault be assumed, Mr Culloton believed that the force he used was reasonable in order to defend himself from Mr Cosgrove's assault; and
(3)Mr Culloton had reasonable grounds for that belief, in the circumstances as he perceived them to be.
It follows that Mr Culloton was not acting in self‑defence against an assault by Mr Cosgrove. The force used by Mr Culloton was not used in self-defence.
There is no evidence whatsoever from Mr Culloton, or anyone else in this trial, which supports any of his defences as pleaded.
Mr Culloton did provide unsworn written submissions claiming:
There are three parts to this trial.
(1)Assumptions
(2)A totally one sided Police investigation
(3)A 20 year vendetta by Gary and Rodney Cosgrove against me
The submissions allege factual matters arising out of the incident. There are also submissions from Mr Culloton directing attention to the transcript of a criminal trial in the District Court of Western Australia sitting at Geraldton in which Mr Culloton stood accused of intentionally doing an act as a result of which bodily harm was caused to Mr Cosgrove and, further and in the alternative, unlawfully doing an act as a result of which bodily harm was caused to him.
However, as previously observed, Mr Culloton did not attend the trial in this present action. He did not give evidence at it. Neither he nor counsel on his behalf cross-examined Mr Cosgrove or any of Mr Cosgrove's witnesses.
There is no evidence, under oath, from either Mr Culloton or anyone, and which, for any purpose he may require, can be taken into account in determining the issue of liability in this civil trial. The pleadings, the written defence submissions and the provision of a transcript from the criminal trial are not evidence in this trial.
Further, it is to be remembered that the standard of persuasion in a criminal trial is different to that in a civil trial. This has been discussed at [12] ‑ [15] above. Mr Culloton chose to not attend the trial. In that circumstance, it is simply not open to consider matters which, had Mr Culloton or counsel attended at trial, he could have raised in evidence under oath and about which he could have cross‑examined Mr Cosgrove and his witnesses, or at least, about which he could have made submissions.
In any event, simply mailing the transcript from a criminal trial to the court hearing a civil action does not make the transcript evidence in the civil trial: Deputy Commissioner of Taxation v Robinswood Pty Ltd (2001) 24 WAR 284. The criminal trial transcript, or part of it, may be admissible for some limited and proper purpose in a civil trial, such as to show that a witness has made a prior inconsistent statement to his or her sworn evidence in the civil trial. However, no reason for the reception of the transcript into evidence was provided by Mr Culloton.
Assessment of damages
It is now necessary to assess the injury, loss, and damage suffered by Mr Cosgrove.
Nature of injuries and treatment provided
Immediately following the assault and battery, Mr Cosgrove and others searched for his missing teeth, however they were not found. He was then driven to the Mingenew Nursing Post where a nurse attended to Mr Cosgrove's injuries and provided him with pain relief.
On the following morning, Mr Cosgrove attended at the Geraldton Dental Clinic, where he consulted a dentist, Dr Barry Thompson.
Dr Thompson apparently removed the roots of the four missing teeth and provided a removable partial denture as an interim measure from a cosmetic point of view. He placed a crown over another tooth which was slightly cracked. He also provided further pain relief, but nonetheless, later that afternoon, Mr Cosgrove fainted.
Dr Thompson did not attend the trial and a dental report from him was not tendered into evidence.
Mr Cosgrove was also referred to Dr Shepherd and to Dr Brent Allan, oral and maxillofacial surgeon. First, Mr Cosgrove attended Dr Shepherd on 25 May 2009, following which, he consulted Dr Allan on 10 July 2009.
It was noted that Mr Cosgrove was missing teeth 11, 12, 13, and 42, or in other words, three teeth on the top right side and one tooth on the bottom right side of his mouth being the upper right central incisor, the upper right lateral incisor, the upper right canine and the lower right lateral incisor respectively. All missing teeth were from the front of the mouth. They had been fractured.
An examination of teeth 11, 12, and 13 showed some minor vertical and horizontal bone loss in the alveolus in the anterior maxilla. As for tooth 42, there was some moderate labial bone loss.
The teeth adjacent to the fractured teeth also required assessment to ascertain to whether they could be retained and not cause problems to repair work. There was an undermined dental cosmetic situation due to missing teeth and slightly compromised periodontal health, mainly related to the use of the partial denture.
Further, there was obvious cracking and infraction lines within the enamel on teeth 21, 41 and 43, being his upper left central incisor, lower right central incisor and lower right canine respectively. Indeed, the top of the latter tooth had been removed, but the base of it had been retained. This tooth was then able to be restored with composite resin. Some other teeth also suffered soft tissue damage, which had been taken care of by the time of Dr Shepherd's review.
On 2 February 2010, Mr Cosgrove was admitted to St John of God Hospital where Dr Allan carried out bone grafting harvested from Mr Cosgrove's jaw, as preparatory to the placement of two titanium implants to support a bridge for teeth 11, 12 and 13 and a further single implant for replacement of tooth 42, which also required bone augmentation. This surgery required a general anaesthetic. The sutures were removed 10 days later. Further, the upper right, upper left and lower third right molars were removed.
Mr Cosgrove was reviewed on a regular basis following the bone grafting and implant treatment.
On 21 July 2010 at McCourt Street Day Surgery, the second stage of the implant surgery for the new 11, 12 and 13 teeth occurred under the care of Dr Allan who exposed the implants, placed healing abutments on top of the implants and removed mini screws from the previous bone graft in the maxilla. Ten days later the sutures were removed. Mr Cosgrove's recovery was without complication.
The delay from February to July was caused by the need for time for the bone grafts to heal. The titanium implants are buried under the gum for four to five months.
The final prosthetic replacement began on 17 August 2010, followed by further appointments.
By completion, a porcelain crown fused to a titanium alloy implant had been used to replace tooth 42 and porcelain crowns fused to an alloy bridge had been used to replace teeth 11, 12 and 13. These crowns are screwed onto the implants.
By 15 February 2011, all treatment was progressing satisfactorily and Mr Cosgrove was referred back to his dentist, Dr Thompson.
In December 2011 and January 2012, it was however necessary to repair the ceramic on the recently fitted prosthesis in the right upper maxilla due to trauma not related to the incident on 12 April 2009. The final prosthesis was replaced on 21 July 2012.
Dr Shepherd described the required treatment as painful. The acute phase of healing would have been quite debilitating for 10 to 14 days.
Mr Cosgrove has now made a satisfactory recovery utilizing prosthetics on implants.
An appropriate award for Mr Cosgrove's injuries resulting from his pain and suffering and loss of amenity of life is the sum of $50,000.
Past dental treatment
Mr Cosgrove has provided invoices detailing the following dental expenses:
12 April 2009 Fitzgerald Dental Clinic $1,312 15 April 2009 Fitzgerald Dental Clinic $705 25 May 2009 Dr Shepherd $1,445 2 February 2010 Dr Allan $11,150 2 February 2010 Mr Scott Aaronson (anaesthetist) $776 3 February 2010 St John of God Hospital $4,438 19 February 2010 Dr Shepherd $650 21 July 2010 Dr Allan $1,600 21 July 2010 McCourt Street Day Surgery $1,117 21 July 2010 Mr A Imison (anaesthetist) $426 17 August 2010 Dr Shepherd $3,600 5 November 2010 Dr Shepherd $8,400 TOTAL: $35,619
Travel expenses
It was necessary for Mr Cosgrove to drive from Mingenew to Perth and return in his motor vehicle to consult Dr Shepherd and Dr Allan. He has claimed the following six trips:
25 May 2009
Dr Shepherd
755 km
2 February 2010
Dr Allan
755 km
19 February 2010
Dr Shepherd
755 km
21 July 2010
Dr Allan
755 km
17 August 2010
Dr Shepherd
755 km
5 November 2010
Dr Shepherd
755 km
TOTAL
4,530 km
The total of this travel claim is 4,530 km at a cost of $0.60 per kilometre. An allowance of $2,718 can be made.
Future dental treatment
Dr Allan said that there is a 97% to 99% success rate for the implants on the upper and lower jaws respectively, so that the probability is they will last Mr Cosgrove's life. However, Dr Allan qualified this by saying that implants have been in existence for only 40 years and that these percentages were therefore only quoted over a 20 to 40 year period. The company which manufactures the implants guarantees the implants for life, so if there is a need for any replacement then, the cost of that replacement will be only the medical cost thereof.
The need for replacement of the implants is too remote to make any allowance for it.
The prosthetics will function for 12 to 15 years and thereafter, will require replacement with the experience being that the lifespan is closer to 15 years at a cost of $2,500 per tooth, assuming that the implants remain stable. This would be an all-inclusive cost.
There does not seem to be any difference between the cost of prosthetics for the upper and lower jaws. That being so, at $2,500 for each of the four lost teeth, the cost of replacement is $10,000 every 15 years, can be calculated for Mr Cosgrove's life expectancy (49 years) as follows:
15 years: $10,000 x .417 = $4,170
30 years: $10,000 x .174 = $1,740
45 years: $10,000 x .073 = $ 730
$6,640
It is possible that Mr Cosgrove may lose the implants with their associated prosthetic structures, in which case it may be necessary to extract other teeth situated beside the implants in order to provide implant replacement and a new prosthetic reconstruction. This however is unlikely. No allowance will be made for such a possibility.
There will however, be a requirement for ongoing maintenance for the implant crowns. Mr Cosgrove will require an annual routine check and dental prophylaxis with a minimal requirement for restorative dental intervention as the best case scenario. For 49 years maintenance, at a cost of $247 per annum, this amounts to $4,022.78 calculated as follows:
$247 ÷ 52 x 844 = $4009
The resin used to restore the lower right canine will require replacing every seven to 10 years at a present day cost of $250 on each occasion. The evidence is that it is probably a closer to 7‑year requirement, rather than 10 years. An allowance can be made for the resin replacement every seven years calculated as follows:
7 years:$250 x .665 = $166.25
14 years: $250 x .412 = $103.00
21 years: $250 x .294 = $ 73.50
28 years: $250 x .196 = $ 49.00
35 years: $250 x .130 = $ 32.50
42 years: $250 x .087 = $ 21.75
$446.00
The fact that Mr Cosgrove has gone without any problem to date is a good sign. Given the time which has passed since the assault and battery, other treatment is unlikely.
It is possible, but not probable, that a crown will be required for the lower right canine at a cost of $2,000 ‑$2,500. There may also be the need for root canal therapy or some other pathology might develop in this tooth, or in the other teeth with infraction lines. As this is only a possibility, no allowance will be made.
As a worst case scenario, the teeth with infraction lines may need to be removed and replaced with another implant and crown at a cost of $10,000 per tooth. However, this too is only a possibility and not a probability. No allowance can be made for this possibility.
An allowance for future dental treatment can be calculated as follows:
prosthetics$ 6,640
maintenance $ 4,009
resin replacement $ 446
$11,095
Aggravated and exemplary damages
In Fleming, The Law of Torts (9th ed, 1998) 274, the learned author quotes Salmond and Heuston on the law of torts (20th ed, 1992) 592 to the effect that:
… aggravated damages are given for conduct which shocks the plaintiff: exemplary damages are given for evidence which shocks the jury.
Aggravated damages are to compensate a successful plaintiff for injury to his dignity or feelings caused by a defendant's reprehensible conduct: Coffey v The State of Queensland & Ors [2012] QSC 186 [105]. Mr Cosgrove could have expected that, as a member of Mr Culloton's extended family at a wedding for his brother, his uncle would treat him in a respectful and dignified manner. There does not seem to be any justification for the action taken by Mr Culloton.
There is no evidence of any apology for Mr Culloton's actions but rather, he has sought to place the blame for the incident entirely upon Mr Cosgrove in that Mr Culloton pleaded self-defence, contributory negligence and voluntary assumption of risk.
An award of $3,000 for aggravated damages is appropriate in this action.
Exemplary damages are punitive in nature intended to punish a defendant for contumelious disregard of a plaintiff's rights and also, to deter other people from acting in like manner. They should mark the court's strong disapproval of the actions of the defendant constituting the battery for which he is liable, such being a deliberate application of force: Coffey v The State of Queensland & Ors [103].
In this action, Mr Culloton deliberately and intentionally struck Mr Cosgrove with his fist to the head, including around his mouth, for no apparent reason, thus demonstrating contumelious disregard for Mr Cosgrove calling for a deterrent to mark strong disapproval of his action.
An award of $5,000 should be provided for exemplary damages.
Conclusion
The evidence, in this civil trial, was limited to evidence on behalf of Mr Cosgrove. That limitation was due to Mr Culloton's own decision to not take part in the trial process. The findings made following trial therefore turn on only part of the totality of the possible available evidence which could have been led at trial if Mr Culloton had participated. He did not. The result of this trial can therefore only be made on the basis of evidence led at trial and not on the basis of what Mr Culloton alleges did or did not happen, about which there is no evidence.
For the reasons set out above, Mr Cosgrove has proved to the required standard that he suffered an assault and battery by Mr Culloton, causing injury, loss and damage. Mr Cosgrove has not sought any other compensation except as outlined above. He is entitled to damages as follows:
Loss of amenities $ 50,000
Past dental treatment $ 35,619
Travel$ 2,718
Future dental treatment $ 11,095
Aggravated damages $ 3,000
Exemplary damages $ 5,000
$107,432
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