Joseph v Joseph

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: JOSEPH -v- JOSEPH [2006] WADC 121

CORAM: CRISFORD DCJ

HEARD: 29 & 30 MAY 2006, 29 JUNE 2006

DELIVERED : 15 AUGUST 2006

FILE NO/S: CIV 649 of 2005

BETWEEN: ANGELEENA JACOB JOSEPH
Plaintiff
AND
JUSTIN BERNARD JACOB JOSEPH
Defendant

Catchwords:

Torts - Assault - Claim for aggravated damages - Injury from pre-existing condition

Torts - Negligence - Failure to take proper care

Legislation:

Nil

Result:

Claim dismissed

Representation:

Counsel:

Plaintiff: A P Hershowitz
Defendant: B C Sierakowski

Solicitors:

Plaintiff: Butcher Paull & Calder
Defendant: B C Sierakowski

Case(s) referred to in judgment(s):

Briginshaw v Briginshaw (1938) 60 CLR 336
Cole v Turner (1704) 6 Mod Rep 149
F v West Berkshire Health Authority [1990] 2 AC 1

Case(s) also cited:

Adams v Kennedy & Ors [2000] NSWCA 152
Hunter Area Health Services v Marchlewski & Anor [2000] NSWCA 294
Poole v Piggott [2000] QDC 254
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 119
Weir & Anor v Tomkinson (2001) WASCA 77

CRISFORD DCJ: This matter revolves around what can only be described as an acrimonious and bitter family dispute.
The plaintiff Angeleena Jacob Joseph lives with her husband Sivapalan Kandiah in Malaysia. She is the older sister of the defendant, Justin Bernard Jacob Joseph, who lives with his wife and two children in Jane Brook, Western Australia.
Dennis Joseph Jacob Joseph the youngest sibling is central to the dispute. Also originally from Malaysia, he now resides with his wife and two children in Bellevue, Western Australia.
For ease of reference I have used the christian names of the parties and witnesses given the family connection and like surname.
Whilst living in Malaysia, Dennis was involved in a serious accident which left him with certain physical disabilities. He was assisted by his sister who in January 2002 provided him with employment and housing. Dennis wished to migrate to Australia. There were family connections with Western Australia. His older brother, Justin, already resided in Australia. The plaintiff's son, Ashwin, attended Christchurch Grammar School as a boarder.
Although the evidence was not particularly clear, Dennis required some financial assistance to acquire a business migration visa in order to get to Australia. It was agreed that the plaintiff's husband would loan him the sum of $100,000. This was lent in June 2003. These moneys were invested in a business called Quick Brick Cartage Pty Ltd. The plan was for Dennis to become a director and shareholder of that organisation.
Repayment of the money did not eventuate. The plaintiff and her husband were keen to recover the money. As the money had, ostensibly, been paid to Quick Brick Cartage Pty Ltd by Dennis it was necessary for any legal action for recovery of the money to be in his name. The plaintiff's husband took steps to have the necessary documentation prepared in Australia and sent to Dennis for signature.
Dennis was reluctant to involve himself in this recovery action. He was of the view that the money would be forthcoming over time. Any recovery action would be likely to jeopardise his migration status.
The plaintiff and her husband, keen to get things moving and adopting a pro‑active approach, paid a surprise visit to Dennis on the morning of 16 September 2004. This is the catalyst for these proceedings.

Pleadings

A statement of claim was filed on 21 April 2005. It pleads details of alleged assaults causing injuries to Angeleena. It claims the injuries continue and are permanent. There is a claim for aggravated damages.
Firstly, it is alleged that Justin wrongfully assaulted Angeleena:
"1.by pinning her against a wall and violently shaking her until (she) managed to break away."
Further assaults are pleaded:
"2.On the same date the plaintiff left the said property and proceeded to wait in her motor vehicle when the defendant wrongly assaulted the plaintiff by intentionally forcing the plaintiff out of the motor vehicle and pushing her against a fence and some bushes. The defendant further assaulted the plaintiff by pushing against the plaintiff's right knee."
Amended further and better particulars of the statement of claim were filed on 21 June 2005 (these amended particulars did not find their way into the amended papers for the Judge handed up in Court on 29 May 2006 which contained the original further and better particulars filed 3 June 2005 only). These amended particulars expand upon the further assault:
"A.2.The plaintiff was further assaulted by the defendant while sitting in the rear seat of her vehicle which was parked at the front driveway of the said property and thereafter while she was standing near the said vehicle. The result of the assault was that the plaintiff was forcibly shaken and pushed against the nearby fence and bushes and the defendant tightly held her forearm and pressed against her knee whereby she sustained further injuries."
The plaintiff further pleads that there was a failure by Justin to take proper care in that he attempted to remove a letter from Angeleena's possession in circumstances where there was a reasonably foreseeable risk that Angeleena would sustain injury.
The defendant denies any assaults or negligence. He pleads that if the plaintiff was injured it was not as a result of his actions. He refers to the plaintiff having a pre‑existing and symptomatic condition which caused her injuries.

Facts

(a) Plaintiff's case

Angeleena and her husband Sivapalan gave the plaintiff's version of the incident.
Both gave evidence that prior to 16 September 2004 there was no disharmony with Justin. Indeed their three children had spent term breaks with Justin and his family whilst they were at boarding school in Western Australia. Sivapalan described the relationship with Justin as being amiable. Vimala, Justin's wife, also confirmed the good relationship.
The couple had flown to Perth on 15 September 2004 and had availed themselves of this opportunity to visit their son Ashwin. He stayed over night with his parents at a city hotel and was delivered back to boarding school early on 16 September 2004. The couple then proceeded to drive from Claremont to Bellevue to visit Dennis and have him go with them to sign the legal document to start legal proceedings against Quick Brick Cartage Pty Ltd. The document had previously been sent to Dennis who had not wanted to sign it.
The exact time of arrival at Dennis's house is unclear. Angeleena was of the view that they arrived about 7.55 am. Sivapalan put it earlier at about 7.30 am. Given the records of the ambulance officers, it appeared the time of arrival at Bellevue was closer to 7 am. This is consistent with evidence led by defence witnesses.
Dennis had not been notified by the couple that they were in Australia and would be paying him a call to persuade him to sign the document.
Whilst it was denied their intention was to surprise Dennis, Angeleena explained that: "I did not want him to lock his house and leave."
The couple parked their hire car in the driveway behind Dennis's car, alighted and Sivapalan knocked at the front door. Dennis answered the door and there was a conversation about the legal document. Their evidence is that Dennis stepped aside thus inviting them in.
In the course of this conversation it became apparent that Quick Brick Cartage Pty Ltd had in fact made one repayment of the outstanding money. However, Dennis had not forwarded this money onto Sivapalan and had utilised it for his own purpose in the consultation of another migration agent.
Sivapalan was shocked, disappointed and felt betrayed by this information and as a result he pushed Dennis in the chest. The couple were keen to convey to the Court that the push to the chest was simply a gentle touch. Sivapalan explained that he pushed Dennis very gently to signify disgust at the action of his retaining the repayment for his own purpose.
Dennis became angry at the gesture and Angeleena intervened in an attempt to settle the situation. The couple refer to Angeleena separating the two men. As a result of her ability to calm the situation, their evidence suggests that Dennis was then willing to sign the document but wished to change his clothing before being conveyed to the solicitor's office.
To that end, Dennis and his wife Jainthee went into the bedroom to change. The bedroom door was locked during this time.
On the couple's exit from the bedroom Sivapalan gave evidence that he was suspicious. As a result he asked Dennis to hand over his mobile phone. He had the impression that Dennis was trying to delay matters and the basis for the suspicion was that the bedroom door had been locked, Dennis had not changed his clothes and thereafter had wanted to eat his breakfast prior to going to the solicitor's office. Angeleena thought he had changed his clothes.
Whilst Dennis was partaking of his breakfast, the couple waited for him. It was during this time that Justin arrived and "stormed" inside the house. The couple gave evidence that he shoved Sivapalan in the chest and there was an argument. This argument quickly settled but Justin then unexpectedly turned to Angeleena and a particularly nasty set of accusations were made towards her. I formed the impression that these accusations were completely unrelated to the matter in hand, being matters to do with the parties' mother and another son of the plaintiff, Kevin.
The evidence of the couple is that during the course of the argument, Justin's left hand or arm was placed across Angeleena's chest and he held a right handed clenched fist in the vicinity of her face.
Justin pushed her backwards along the corridor and into the kitchen. The evidence suggests there were 3‑4 separate episodes of this behaviour and on each occasion, Justin was removed by Dennis, Sivapalan and Jainthee. As soon as he was removed he started again.
However, there was one final action where according to Angeleena, Justin ran across the kitchen and pinned her against a kitchen wall next to the fridge. At this stage, Dennis was crying as were Justin's children. Again, Justin was pulled away from Angeleena by Dennis, Sivapalan and Jainthee. Dennis, in his state of upset, agreed that he would sign the document.
At this it all stopped and the group moved outside. Dennis got into the front passenger seat of Sivapalan's car. Angeleena sat in the back seat behind him. Sivapalan gave evidence that he was simply standing in the front driver's doorway waiting for Justin to move his motor vehicle, which according to Sivapalan was parked directly behind the hire car sandwiching it in place.
However, the couple gave evidence that Justin went to Dennis's door and ordered him out of the car. Indeed, Angeleena's evidence is that Justin pulled Dennis from the car. She also gave evidence that Justin pulled her out of the car while she was seated. At that stage she was holding the relevant legal papers. They had been provided to her in the house.
Her evidence was that Justin grabbed her right arm just above the elbow and asked for the document. She did not give it to him and tried to keep it out of reach. A struggle ensued.
"It was an instant reaction. I just ran and sort of squat (sic) and held the paper very hard" was Angeleena's evidence.
She held the papers between her knees. She said she was pursued by Justin who squatted as well and placed his hand on her arm. He grabbed the document and in the course of this the document was torn in half. Angeleena gave evidence that she hurt her leg and held onto the fence and the car door and levered herself into the rear passenger seat once again. Thereafter, she managed to hobble to the veranda stairs and sit on the steps. She said that initially she had been too shocked to cry out but once she was on the steps she was able to explain to her husband that her "leg had gone."
Sivapalan's recall was that after Justin had told Dennis to alight from the car, his wife commenced to get out herself. Justin pulled her out and enquired as to the whereabouts of the document.
At this stage Angeleena was trying to hide it behind her back and there was a struggle in which Justin tried to obtain the document and Angeleena was resisting in various ways including putting the document between her legs and placing herself in a semi‑crouched position. He gave evidence that Justin held her hand with one of his hands and pulled the paper with the other at which stage it tore.
"What happened to your wife, the plaintiff, in that incident?...Then it was quite strange because she sort of collapsed and I didn't know – there was no sound, there was no crying. She just collapsed and she held on to the car though and sat in the back seat of the car. By then they were arguing…"
By this time, Sivapalan gave evidence that he was near the boot and that he went to help her as she hobbled to the stairs.
He was asked in cross‑examination what had happened after Justin had pulled her out of the car and she had stood up:
"...and then he spotted the paper in her hand and he said, 'give me the paper', and they started‑and it was quite animated actually because she tried to hide the paper behind her back and obviously he was trying to reach for it and I don't know what prompted her to do that but all of a sudden when she felt I suppose that she couldn’t keep the papers at the back, she went into a semi kneeling/semi crouching position I would say...
…She had taken the paper, holding the paper with both hands by her knees.
…I don't know what she hoped to achieve by that but that's what she was doing."
Evidence was given by Sivapalan that prior to this specific interaction, there were three or four previous attempts to obtain the document from Angeleena. In re‑examination it was expanded on:
"Can you describe please what you saw? Whether you saw any force being used or what happened in those three or four attempts?...I would say that she was trying to – she held the document in her right hand and she was holding it behind her back, trying to keep it away from him and she was twisting her body.
What was Justin doing?...Justin was trying to grab it from her both ways, left and right.
Did you notice any force being used?...Yes, of course, they were grappling, if I can use that term.
Could you just tell us what you observed in relation to those attempts?...So in the ‑ he was not holding her at the time that he was trying to get the document but when she finally put it between her knees, he then grabbed her hand and then with the other hand he grabbed the piece of paper, so before that he was not holding onto her as such.
Could you just...?...there was a lot of pushing and shoving..."
After Angeleena had manoeuvred herself to sit on the step and explain that her leg or knee had been injured, the couple gave evidence that Justin's reaction was along the lines "Good. Die."
An ambulance was called, duly arrived and Angeleena was taken from the home. Sivapalan's evidence is that Vimala, Justin's wife, gave him the telephone number for the ambulance and "they" enquired if he wanted the police called.

(b) Defendant's case

Dennis and Jainthee gave evidence that early in the morning of 16 September 2004 there was a loud banging on their front door. The banging was accompanied by calls for the door to be opened.
Whilst Dennis gave evidence he had been previously asked by the plaintiff and her husband to sign a legal document, he had no inkling that they were in Australia or intended to pay him a visit to press the issue.
His evidence was that immediately on opening the door, Sivapalan entered the home and pushed him in his chest pinning him against a wall. He was not invited in. His evidence was there was abuse and threats and that Sivapalan wanted to obtain the document. Angeleena was also screaming.
Jainthee's evidence is that she was in the kitchen preparing the children's school lunches and as a result of hearing the ruction, looked out of the kitchen into the corridor and saw her husband pinned up against the wall.
She dispatched her two children into their bedrooms and returned to the kitchen to remove any visible knives. Her explanation was that she had heard Sivapalan use words to the effect that if it was not for Angeleena, he would murder them. This scared her and she thought some kind of harm would come to them.
Thereafter the couple went into the bedroom to obtain the sought after document. It was located. Dennis gave evidence he did not want to sign the document. Dennis changed his clothing and returned to the kitchen where Sivapalan was. Jainthee, still in the bedroom rang her sister‑in‑law Vimala to explain that Sivapalan was assaulting Dennis.
She saw her son off to school by bus which was due to arrive at 7.20 am.
She was asked by Dennis to give him the mobile phone so that he could ring his employer to indicate some delay to his arrival was possible.
The couple say that the phone was snatched from Dennis's hands by Sivapalan.
The document which had been located in the bedroom was handed to Sivapalan by Dennis who later gave it to Angeleena. Dennis's evidence is that he refused to sign the document and at that refusal, Sivapalan came up very close to him.
It was at this time that Justin and his wife and children arrived. He was told by Sivapalan not to interfere. Justin explained he had every right to interfere because it was his brother. Thereafter Sivapalan pushed Dennis towards the motor vehicle outside the house in order to have him go to sign the document.
Dennis seated himself in the front passenger seat and Justin came to him to enquire whether he had been threatened and whether he really wanted to sign the document. Dennis told him he did not want to sign and there had been threats to murder the family.
Dennis was not sure in cross‑examination whether he had ever said to Justin that he would go and sign the document because he did not want any trouble. Even if he did say that, I formed the view it did not mean he wanted to sign the document. As Jainthee put it, he was reluctant to sign.
According to this couple, Angeleena was standing at the rear part of the car and did not ever enter the car and sit in the rear passenger seat.
The couple's evidence is that Justin went to Angeleena and according to Dennis, initially asked for the document. When this was refused he grabbed the document from her upon which it tore in two. Thereafter Angeleena walked to the veranda indicating "My leg, my leg, Justin I'm going to sue you."
At this, Dennis and Justin decide to leave and make a police report about the threats and whilst in the process of leaving the property, Angeleena walked up to the car and made some further threat about them having been given a last chance.
Neither Dennis nor Jainthee gave evidence of anything untoward happening in the kitchen between Justin and Angeleena. The evidence for the plaintiff was that Dennis and Jainthee actively assisted in the removal of Justin from an assault on her. This was not explored at all during the course of cross‑examination.
The defendant gave evidence on his own behalf. His wife Vimala also gave evidence. This couple resided at Jane Brook some six or so minutes travelling time from Dennis and Jainthee. Their evidence is that a phone call was received by Vimala from Jainthee at about 7.15 am. The phone call revealed that Sivapalan was assaulting Dennis. The couple immediately set off to Bellevue with their children to see what was going on.
Angeleena was on the steps outside the property and indicated to Justin that he should not interfere. Justin with Vimala and his children behind him, walked into the kitchen where he observed Sivapalan up against Dennis. By "up against", he described that they were very close to each other. Vimala also gave evidence that Sivapalan was up against Dennis. In the kitchen, apart from Sivapalan and Dennis was Jainthee. Angeleena followed behind into the kitchen. Justin asked what was going on.

Sivapalan indicated to Justin that he should not interfere and Justin responded that he had every right to interfere as this was his brother.
Justin and Vimala gave evidence that Angeleena, who had followed them from the step, was screaming and cursing.
At this stage Sivapalan grabbed Dennis's arm and told him to go and get into the car. In the hallway, there was a conversation between Dennis and Justin to the effect that Sivapalan had taken Dennis's mobile from him and he had additionally made threats to kill Dennis's family if he did not do what he was told. Justin said Dennis was crying.
Dennis got into the car with his legs hanging out of the front passenger seat. The couple gave evidence that Angeleena remained at the rear of the vehicle although Vimala was of the view that Angeleena was at the right hand side of the rear of the vehicle rather than the left hand side.
Justin went to the car beside Dennis and asked him to confirm whether he had been threatened and Dennis said yes. Again Dennis was crying.
Thereafter Dennis attended to where Angeleena was standing at the rear of the car. He asked her to give him the papers. She made no reply and according to Justin he just grabbed it. Angeleena tried to resist, that is, she retained hold of the document and it tore.
Angeleena walked from the rear of the car to the step and sat down exclaiming "My leg, my leg, Justin I'm going to sue you."
Dennis had told Justin that he did not want to go and sign the document. Justin formed the view that it was not right for him to sign the document against his will especially in the context of threats to kill him and his family.

Law

Assault consists in intentionally creating in another person an apprehension of imminent harmful or offensive contact. If the threat is actually carried out, the whole incident is properly described as an "assault and battery." Usually both offences occur in rapid succession, and in common parlance the word "assault" is frequently used as including a battery. (The Law of Torts JG Fleming 9^th ed p 31).
"The least touching of another person in anger is a battery". (per Holt CJ in Cole v Turner (1704) 6 Mod Rep 149).
The definition of battery contains the notion of it being an act done against the will of the party the subject of the battery.
There is no requirement to prove that the actual contact caused or threatened any physical injury or harm. The culpable touching may take various forms, subject only to the rule that the contact must be direct. It is necessary to consider whether contact is simply consequential only on the act of a defendant. If this is the case there will be no battery.
A degree of physical contact is an inevitable part of everyday life. In F v West Berkshire Health Authority [1990] 2 AC 1 at 73 Lord Goff said:
"That exception is concerned with the ordinary events of everyday life – jostling in public places and such like – and affects all persons, whether or not they are capable of giving their consent."
Lord Goff re‑stated his own definition of the boundaries of battery: Was any physical contact imposed on the claimant in excess of that "generally acceptable in everyday life"?
It is necessary to examine all the surrounding circumstances in relation to the alleged assault (and battery). This includes considering the relationships between the parties and how they conduct themselves in their relationships. Any contact which is generally acceptable in the conduct of everyday life does not fall within the definition. It is a matter of considering the particular circumstances of each case.

Burden of proof

The plaintiff carries the burden of proof in this matter. In this regard it is helpful to again consider the comments of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336. He said at 361‑362:
"The truth is that, when the law requires the proof of any fact, a tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecutions, 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 of 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."
It is necessary obviously, to determine the issue of the assaults in this case by reference to the balance of probability.

Credibility

In relation to the assaults there are two very different versions. From the defence point of view the initial alleged assault, the kitchen incident, simply did not take place in any way, shape or form. The further allegations, according to the defence, involved simply the removal of a document from Angeleena's person outside the premises. Apart from these there are many other differences in the detail.
Like all matters where credibility looms large, this is a difficult matter for a trial Judge to determine. All the critical witnesses are family members. Some are related by marriage. No‑one is completely independent. It is clear that there were longstanding family dynamics. It was easy to detect many influences or emotions flowing through the course of the evidence including anger, jealousy, resentment, entitlement and loyalty. At least at the time of the alleged assaults, there was what appeared to me to be a disparity in sophistication between family members and also the wealth of family members. These were issues that were hard to ignore during the course of evidence and in the assessment of different witnesses.
Whilst it was not explored to any great extent, understandably perhaps, the Court was left with a distinct uneasiness about the whole business migration process and the methods utilised to further the success of any application. I formed the view that the parties involved were willing to manipulate the system or at least condone such manipulation. Sivapalan gave evidence that prior to the loan the subject of this dispute he had deposited a substantial sum of money in a fixed term deposit in Malaysia in Dennis's name, ostensibly it seems, to create the impression Dennis had funds. Once the application for a visa was approved, the money was repaid to Sivapalan.

Contemporaneous documents

Given these difficulties and in order to assist in the assessment of the witnesses, the Court had before it, tendered in evidence, a number of documents made shortly after the morning interaction.

(a) Ambulance and medical records

The patient care record of the ambulance officers reports arriving at Bellevue at 8.07 am to find Angeleena distressed, hyperventilating and with heart palpitations. However, these symptoms quickly subsided once she calmed. She reported a knee injury from allegedly being assaulted outside by her brother.
The ambulance took her to the Emergency Department at Swan District Hospital in Midland. On examination by senior registrar Andrew Hooper she had a mild effusion on her right knee with medial joint line tenderness. She had a full range of extension and a reasonable range of flexion limited by pain. There was no ligamentous instability and the limb was neurovascularly intact. He gave evidence the injury was consistent with a twisting of the knee. He noted no other injuries.
The following day Angeleena attended Doctor Ooi at the Applecross Medical Group. He gave evidence that she reported neck pain at this attendance and explained she had been pushed against a wall and shaken forcibly. A medical report based on his notes states:
"She experienced pain in the neck and right knee and was subsequently taken by ambulance to Swan District Hospital. Her neck pain persisted despite treatment with analgesics and she also complained of cramps in the right hand and paresthesia down both arms."

(b) Plaintiff's statement signed 1pm 16 November 2004

Although not entirely clear, it appears this statement was tendered into evidence on the basis that it was inconsistent with some aspects of the plaintiff's present testimony. It was tendered as a whole without objection.
The statement was made to the police apparently to report the alleged assaults. At the time the statement was made, Angeleena was aware that Justin and Dennis had immediately left Bellevue after the legal document was torn to make a report to the police about what had taken place.
Angeleena gave evidence that she was in a great deal of pain when the statement was made and that:
"Whatever I could remember I just said as it was, whatever I could remember at the time." (sic)
The statement recounts that if Angeleena and her husband were not successful in having Dennis sign the legal document then he would be sued. Sivapalan gave evidence the couple returned in October to Australia to see the police from the Commercial Crime Division with a view to commencing proceedings against Dennis.
The statement insofar as it relates to the alleged kitchen incident is more or less consistent with the sworn evidence given at trial by the plaintiff and her husband.
However, there is little consistency between the detail in her sworn evidence and what is contained in this statement insofar as it relates to any further alleged assaults.
(c) Defendant's statements signed 16 and 17 November 2004
Dennis and Justin attended the police station on 16 September 2004 immediately after the argument and before an ambulance arrived. Dennis gave a statement that was witnessed by a police officer and that same statement formed the basis of an intended application for a restraining order. The statement of 16 September 2004 was resigned before a Justice of the Peace on 17 September 2004. It was this latter statement that was tendered in evidence. Whilst there were some inconsistencies, I found them to be of a relatively minor nature, not necessarily going to the heart of the alleged assault. In giving evidence, Dennis had made it clear that the sequence in the statement was incorrect. It appeared to me that he was prepared to make certain concessions about some of the inconsistencies.
Prior inconsistent statements are, of course, not evidence. They cannot be treated as proof of the facts contained in the statements. However, the statements can be taken into account in assessing a witness's credibility especially when the Court is considering whether a witness's evidence on oath should be accepted.
As previously stated this is a case where it is difficult to make an assessment based simply on the credibility of each of the witnesses. The contemporaneous statements and documents made are of some assistance in this matter.

Findings of fact

(a) Generally

I find that the attendance of Angeleena and her husband at Dennis's residence on 16 September 2004 was for a specific purpose. It was not a social visit. It was unannounced at an hour of the day when Dennis and his family were involved in the family routine of preparing for the children's school day and for Dennis to go to work. The couple had no success in trying to persuade Dennis to sign the legal document by telephone or text message. They were there to "persuade" him in person. They were not invited to his home.
I find it of little relevance whether there was loud banging and shouting or simply a dignified knock at the front door. Again, it seems of little relevance whether the unseemly interaction commenced immediately Dennis attended to open the door or whether it started some short time later when it was divulged that one repayment had been received by Dennis but not forwarded to Sivapalan.
I do not accept there was an invitation to enter. There may have been acquiescence to the entry.
What I do find of relevance is that Sivapalan, even on his own admission, physically handled Dennis. In his own words he was shocked, betrayed and disappointed. I find that his reaction was not as gentle and calm as Angeleena and Sivapalan made out. However, I am of the view there may well have been some exaggeration by Dennis about the incident. None the less, taking into account his surprise and own physical disabilities, I accept the interaction would have been frightening. I find that the interaction was accompanied by certain threats, the exact nature of which are unclear. Overall, it was a time of agitation and heightened emotions. I formed the view that it is unlikely anyone was particularly calm and collected.
The evidence is that Justin attended at Bellevue after being told that Sivapalan was assaulting Dennis. Justin's presence at the premises was sought by the residents albeit indirectly.
I formed the view having seen and heard Angeleena's evidence that she was fairly reactionary and dramatic in her presentation. She was keen to present her presence at her brother's house as being calm, collected and rational. I do not accept that to be the case.
Although I accept that the whole incident was distressing for all involved I found most of the witnesses, not surprisingly given the dynamics between the parties, to be unsatisfactory in at least some aspects of their evidence. I find it highly likely there was both exaggeration and down playing of the events of the morning. Overall I preferred the evidence of the defence witnesses. I found the evidence of both Jainthee and Vimala to be given, by and large, in a credible manner. There was no real challenge to what they said.

(b) First incident

I am not satisfied on the balance of probabilities that this alleged interaction between the parties took place as maintained by the plaintiff.
The pleadings are quite specific about the nature of this assault – the pinning of Angeleena against a wall and her being violently shaken until she managed to break away. The sworn evidence of Angeleena and that of her husband Sivapalan did not support the detail of such an assault. Whilst she did mention it in her earlier police statement I did not, overall, find her recall to be reliable or accurate enough to feel that the onus of proof had been discharged.
Whilst according to this couple, Justin had her pinned against a wall, there is nothing in their evidence to suggest she was forcibly shaken. There was allegedly a clenched fist raised to her face. It is said this was a violent attack. Yet it seems on their evidence that once Dennis said he would sign the document, it all suddenly stopped despite the fact this particular argument had nothing to do with Dennis. I found this lacked credibility.
The couple was clear that Dennis, Sivapalan and Jainthee had physically removed Justin from Angeleena. Dennis and Jainthee gave no evidence of any such assault at all, let alone active involvement in separating brother and sister.
Neither Dennis or Jainthee were challenged in cross‑examination about this matter and their role in it.
The evidence of Angeleena, Sivapalan and Jainthee was that there was a very good prior relationship between Justin and Angeleena and her family. However, Angeleena and Sivapalan's evidence suggests that Justin for no apparent reason turned on Angeleena and raised matters completely unrelated to the situation at hand.
Whilst the statement Angeleena made to the police on the day of the incident suggests some consistency with there being an incident in the kitchen I am not satisfied that this, given the entirety of that document, assists the plaintiff's case. I know that Angeleena attended the police station fully aware that Justin and Dennis had immediately gone to report the matter to the police. Whilst I felt an uneasy sense both parties may have been trying to manipulate the position, Angeleena impressed me as being more likely and able to do so.
The ambulance and immediate medical records do not note any suggestion of neck pain which in the main was attributed to the kitchen incident. This may not have been apparent immediately but the report of Dr Ooi suggests that neck pain was present when she was taken by ambulance to Swan District Hospital yet this was not noted there or by the ambulance officer.

(c) Further assaults

There are two further assaults which are alleged to have taken place outside the Bellevue house. These assaults are said to arise in the context of Dennis leaving with Angeleena and Sivapalan to attend the solicitor's office to sign the legal document. It is pleaded that Justin forced Angeleena out of the hire car and pushed her against a fence and some bushes. Further, it is pleaded he assaulted her by pushing against her right knee. This is expanded on and the particulars include detail of Justin forcibly shaking Angeleena prior to pushing her against the fence and bushes. Additionally, he tightly held her forearm and pressed against her knee whereby she sustained further injuries.
Alternatively, it is pleaded that Justin failed to take proper care in attempting to remove a letter from Angeleena's possession in circumstances where it was reasonably foreseeable that Angeleena would sustain injury.
The common ground between all the parties is that the legal document was "grabbed" from Angeleena's grip by Justin.
I am not satisfied on the balance of probabilities that there was any assault and battery as outlined by the plaintiff, either in her pleadings or sworn evidence. I accept there was interaction between her and Justin resulting in the tearing of the legal document.
In coming to this conclusion, I have taken into account the whole context of the dispute. Angeleena and her husband had attended at Dennis' house in what can be described as a clandestine fashion. They were not invited to go there and it is unlikely given their purpose for attending, they were likely to be welcomed with open arms. Justin and his wife had been asked albeit indirectly to attend.
I have also tried to assess the likelihood of the skirmish taking place where the plaintiff and her husband gave evidence that it took place. Their evidence suggests that it happened between the passenger side of the hire car and the fence. Given their evidence that both the front and rear passenger side doors were open, and the photographs exhibited suggest little available room, it is hard to imagine the description of what happened by both the plaintiff and her husband as being capable of taking place in that space. The evidence of Sivapalan suggest ducking and weaving that was both physical and animated. Angeleena gave evidence she ran.
Overall, I found the defence witnesses evidence in relation to where the interaction outside the house between Justin and Angeleena took place as far more credible. Whilst I accept that there was some downplaying of that interaction, I do accept that it took place at the rear of the hire car and not to the side as the plaintiff would have the Court believe.
The statement made by Angeleena immediately after the events in respect to these alleged assaults is more in line with what the defence witnesses have said.
I accept that Justin attempted to remove the document from Angeleena on the basis that Dennis, to whom the document had been sent, did not want to go and sign it. I accept that it is highly likely that there was more to his removing the document than simply grabbing it. By this I mean there is likely to have been some ducking and weaving by Angeleena and Justin. However, I am not satisfied that there was an assault or that any action on the defendant's part caused a knee or any other injury to the plaintiff.

I do accept such a knee injury was sustained but it seems to me that her attempts to retain a document at all costs was the cause of any injury she sustained rather than an assault and battery by her brother Justin. I accept the evidence that he asked for the document and then retrieved it. In trying to evade him she was twisting her body.
I do not find it proved on the balance of probabilities that any contact was anything other than consequential upon the act of retrieving the document. Again, it is necessary to keep this matter in context and that includes the manner in which Angeleena attended the property, the purpose for which she attended and her inability to view what happened as being perhaps part of the family life she chose to lead.
In terms of the pleaded alternative that it was reasonably foreseeable Angeleena would sustain injuries as a result of Justin forcibly removing documents from her possession, again I am not satisfied the evidence is that he was negligent in attempting to remove papers from her possession. Whilst he accepts he grabbed the document, the difficulty arose when there was active resistance to the removal of it. I am of the view that Angeleena's actions outside the property were likely to have caused her injuries rather than any act or actions of her brother Justin.
I would dismiss the plaintiff's claim.

[2006] WADC 121

15 August 2006