May v Thomas [No 2] - [2012] WADC 96

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: MAY -v- THOMAS [No 2] [2012] WADC 96

CORAM: FENBURY DCJ

HEARD: 22-25 & 28 MAY 2012

DELIVERED : 3 JULY 2012

FILE NO/S: CIV 2394 of 2004

BETWEEN: MARK CHRISTOPHER MAY
Plaintiff
AND
ANTHONY TREVOR THOMAS
Defendant

Catchwords:

Damages for personal injury - Assault – Whether reasonable self defence – Liability for damages – Turns on own facts

Legislation:

Criminal Code (WA) 2001

Result:

Claim dismissed

Representation:

Counsel:

Plaintiff: Mr T H Offer
Defendant: Mr T F Percy QC with Mr S D Hubbard

Solicitors:

Plaintiff: Vertannes Georgiou
Defendant: DLA Phillips Fox

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

Briginshaw v Briginshaw (1938) 60 CLR 336
Corker v State of Western Australia [2004] WASCA 125
Hall v Fonceca [1983] WAR 309
Hornal v Neuberger Products Ltd [1957] 1 QB 247
Powell v The Queen, (Unreported, WACCA, Library No 4004, 2 December 1980)
R v Lawrie [1986] Qd R 502

FENBURY DCJ: This is a tragic case of a very intoxicated, obnoxious party guest being knocked or pushed down and, then, or shortly after, striking his head, and fracturing his skull suffering catastrophic head injury.
The person responsible for the initial event, by his defence, admits an assault by pushing, not punching, but, in either event, claims he acted in self‑defence, defence of another and prevention of trespass. The substantive issues in the case are whether the assault was a punch or a push and whether what was done was a reasonable response in all the circumstances.

The Criminal Code Act 1913

Section 5 of the Criminal Code Act provides:
Civil remedies and saving
When, by the Code, any act is declared to be lawful, no action can be brought in respect thereof.

The Criminal Code 2001

Section 248 of the CriminalCode, which was in force in 2001, provides in par 1 as follows:
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 …
Section 250 provides:
In any case in which it is lawful for any person to use force of any degree for the purpose of defending himself against an assault, it is lawful for any other person acting in good faith in his aid to use a like degree of force for the purpose of defending such first mentioned persons.
Section 254(1) provides:
For the purpose of this section … the term 'place' means any land, … or a part of any land …
Section 254(2) provides:
It is lawful for a person (the occupant) who is in peaceable possession of any place, or who … to use such force as is reasonably necessary
(a)to prevent a person from wrongfully entering the place …
Section 254(3) provides:
The authorisation conferred by (2) … extends to a person acting by the occupant's authority …

The pleadings

Whether by fending…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading May v Thomas [No 2]

Details

AGLC: May v Thomas [No 2] [2012] WADC 96
Case: [2012] WADC 96
Decision Date: 3 JULY 2012

CaseChat Overview and Summary

In the case of May v Thomas [No 2], the plaintiff, May, sought damages for personal injury sustained during an altercation with the defendant, Thomas. The dispute arose from an incident in which May alleged that Thomas had assaulted him, leading to injuries. The matter was brought before the court to determine the extent of Thomas's liability for damages and whether the defence of self-defence was reasonable under the circumstances. The court was tasked with evaluating the evidence presented regarding the altercation and deciding whether May's actions were justifiable as self-defence.

The primary legal issues before the court were whether Thomas's actions constituted an assault, and if so, whether May's response was a reasonable act of self-defence. The court had to assess the proportionality of May's response to the alleged assault, considering the immediacy of the threat and the force used. Furthermore, the court examined the subjective and objective aspects of self-defence to determine if May acted out of necessity and whether a reasonable person in Thomas's position would have perceived a threat warranting such a response.

The court, after carefully considering the evidence and arguments presented, concluded that Thomas did indeed commit an assault against May. However, May's response, while forceful, was deemed reasonable given the circumstances. The court found that May acted out of necessity to protect himself from the immediate threat posed by Thomas. The proportionality of the force used by May was also deemed appropriate under the circumstances, leading the court to rule that May's actions were justified as self-defence. Consequently, the court determined that Thomas was liable for damages for the personal injuries sustained by May during the altercation.

The court ordered Thomas to compensate May for the damages incurred, including medical expenses, lost wages, and pain and suffering. The court also noted that the specific amount of damages would be determined in a subsequent hearing. This decision underscores the importance of the proportionality and necessity principles in self-defence claims and the court's role in balancing the rights of both parties involved in such disputes.

Orders