Meeks v Kirkham - [1999] WADC 4

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: MEEKS -v- KIRKHAM [1999] WADC 4

CORAM: COMMISSIONER REYNOLDS

HEARD: 24 MAY 1999

DELIVERED : 16 JULY 1999

FILE NO/S: CIV 3409 of 1996

BETWEEN: OWEN JAMES MEEKS
Plaintiff
AND
STUART NEVILLE KIRKHAM
Defendant

Catchwords:

Tort - Assault and battery - Trespass - Use of no more force than reasonably necessary - Liability - Turns on own facts.

Legislation:

Nil

Result:

Judgment in favour of the plaintiff and damages to be assessed.

Representation:

Counsel:

Plaintiff: Mr P R Eaton
Defendant: In Person

Solicitors:

Plaintiff: Bowen Buchbinder Vilensky
Defendant: In Person

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

Nil

Case(s) also cited:

Nil

COMMISSIONER REYNOLDS:
Introduction

The plaintiff was born on 10 July 1950 and is 48 years of age. He is a qualified accountant but is currently unemployed and in receipt of a disability pension. The plaintiff alleges that on 15 November 1992 at between 8.30 pm and 9.00 pm at 41B Cloister Avenue, Manning, Western Australia the defendant wrongfully assaulted and beat him ("the assault") and that he has suffered damage as a result of the assault.
The plaintiff has particularised his injuries caused by the assault as a laceration to the right lateral eyebrow, periorbital bruising to his face, an injury to his neck, tenderness of the stomach, bruising about the tenth dorsal vertebrae and nervous shock. Each of the injuries has been of varying duration. It would be fair to say that the main injury complained of is the injury to the neck which the plaintiff says was severe at the time of the assault and remains so. He has attended on various medical practitioners and other medical professionals and undergone various forms of treatment in relation to the injuries.
The plaintiff alleges that he suffers from residual disabilities as a result of the assault including restricted movement of the neck, headaches, pain, reduced capacity about the home, reduced ability to sit, stand and walk, disturbed sleep, poor concentration, predisposition to arthritis, depression and irritability and loss of libido. He alleges that he is no longer able to participate in a wide range of sporting and recreational activities which he enjoyed prior to the assault. The plaintiff also alleges that as a result of his residual disabilities caused by the assault he was unable to continue with his employment as a lecturer in business studies at the Central Metropolitan College of TAFE and resigned from that position in September 1997 on medical advice. The plaintiff therefore seeks damages for economic loss made up of both past and future economic loss.
The defendant's defence provides as follows. He denies the assault. He says that his partner Catherine Mary Willett ("Ms Willett") was at all material times the owner and occupier of the premises situate at 41B Cloister Avenue, Manning, Western Australia ("the premises") and that on 15 November 1992 the plaintiff was a trespasser on the premises and attempted to, without authority, enter the dwelling thereon. The defendant further says that, as he was entitled to do, he laid hands on the plaintiff and removed him from the premises using no more force than was reasonably necessary. The defendant has also denied that the plaintiff has sustained any injuries, loss or damage as alleged.
On 29 March 1999 it was ordered that the plaintiff's action be listed for trial on the preliminary issue of liability only. It came before me on 24 May 1999 for the purpose of resolving the issue of liability only.
The evidence
The evidence consists of oral evidence by the plaintiff, Dr Michael Benson ("Dr Benson"), the defendant and a number of photographs of the premises.
The plaintiff gave evidence that as at 15 November 1992 he had known Ms Willett for about six years. At some time, I do not know when, the plaintiff and Ms Willett formed a relationship which started to deteriorate in 1992. They stopped going out together about six to seven weeks before 15 November 1992. On Sunday, 15 November 1992 Ms Willett's son, Justin, spent the day with the plaintiff and the plaintiff's two daughters. They all visited a military museum and the children later spent some time swimming in a pool. The plaintiff made an evening meal for the children and at about 8.30 pm returned Justin to the premises. He said that before he returned Justin he telephoned Ms Willett from his home to apologise for being late and tell her that they were on their way. He also said that Ms Willett agreed to his request to speak with him when he arrived at the premises.
The plaintiff gave evidence that when he arrived at the premises Justin got out of the car and went inside. The plaintiff had parked his car on the roadway end of the driveway to the premises. He waited in his car with the engine running for Ms Willett to come outside and speak with him. He said that he waited for probably five, ten minutes with the car engine running as a sign that he was not there to stay. The plaintiff gave evidence that at some stage during this time the defendant came out and told him that Ms Willett did not want to see him and that he should leave. In cross‑examination the plaintiff agreed that Justin passed on a message to him from his mother (Ms Willett) that she did not want him to talk to him and could he just leave. The plaintiff added that this was just one of the message that Justin gave him. He said that he did not leave because Justin had also been out and told him that his mother was coming out in about 30 seconds.
The plaintiff waited outside in his car after both the defendant and Justin had finally returned inside. Ms Willett did not go out to speak with him and so he left his car with the engine running and went to the front door where he knocked on the flywire door. The plaintiff said that "if he knew the attitude of certain people in the house he probably, prudence tells him that he shouldn't have been anywhere near the house".
The plaintiff said that the defendant came to the front door and grabbed his T-shirt with both hands around the chest area. He said that the defendant pushed him gently backwards and forwards within an arm's length between half a dozen and a dozen times and then both backwards and forwards with a severe amount of force "that forced my head to fly back. My glasses flew off over my head and at the same time my neck cracked". The plaintiff added that from that point "I just went numb from the neck down and he was actually holding me upright ... he just, I don't know, stood there holding me and just continued to shake me. I was basically like a rag doll. I had no control. My arms, legs and head were just going in all directions."
The plaintiff gave evidence that the defendant then flung him across the front verandah. He said that he then bent down to pick up his glasses and as he did so the defendant grabbed his T-shirt in the chest area with both hands and stood him up against a wall and knocked him back into the wall about half a dozen to a dozen times. The plaintiff said that when this was happening he was trying to get his arms up to force the defendant away.
There was a paved carport area adjacent to the front verandah at the premises. The plaintiff gave evidence that his next recollection is being on the driveway of the carport on all fours. He recalls saying on several occasions to the defendant "If I can just get my glasses I'm out of here". He said that every time he moved towards the front verandah to get his glasses the defendant stood in front of him and forced him back into the carport and against Ms Willett's car. The plaintiff said that while he was in the carport area the defendant hit him in the stomach about three times, once with a clenched fist and another time with an open hand like a knife into his stomach. The plaintiff gave evidence that on one occasion he had almost got past the defendant when he was grabbed by the side of his T-shirt and pushed back into the carport area.
The plaintiff gave evidence that it was at this time that Justin attempted to pass his glasses to him. The plaintiff gave evidence that as he leaned forward with his head down to collect his glasses from Justin the defendant grabbed him with his right arm and put him in a strong headlock. The plaintiff said that he took his glasses from Justin and held them in his hand.
The plaintiff gave evidence that while he was being held in a headlock the defendant "was literally dragging me up towards my car". The plaintiff recalls arriving at a position near the front right hand wheel of his car. He said from that point he has no recall until shortly thereafter when he says his head was resting on the roof of the car, his body was facing in and leaning against the car and he was buckling at the knees and sliding down the car. As for the period of time for which he has no recollection he said that he can only assume that he was concussed or knocked out for a few seconds. His next recollection was feeling "warm liquid running down the side of his face" and he realised that he was bleeding. He says that he does not know how he was cut but assumes that he was forcibly directed into his car because the weathershield over the driver's window was broken in three places. He said that it was not broken when he arrived at the premises.
The plaintiff gave evidence that when he realised he was bleeding the defendant was already walking back towards the house. The plaintiff said that he called out to the defendant something like "Now you have done it" whereupon the defendant returned to the car. The plaintiff said that he could not open the car door because he did not have the strength in his hands to do so. He added that the defendant then pushed him back towards the passenger door, opened up the driver's door and literally grabbed him from the back and threw him into the car across the seats and then just walked off.
The plaintiff gave evidence that he drove from the premises to the local shops and telephoned the police and reported the assault. He said that at the time he made this telephone call his eyesight was completely blurry even though he was wearing his glasses. Later that evening the plaintiff attended the Victoria Park police station and made a report. On his way home from the police station he stopped off at Royal Perth Hospital but did not wait there to receive any treatment because "I was feeling that sick I just wanted to go home". The plaintiff gave evidence that when he was at home he tried to clean the cut on his head but only succeeded in opening it further. He therefore went to the Emergency Department of Sir Charles Gairdner Hospital where the cut was sutured using four stitches.
The plaintiff gave evidence that he did not in any way strike or threaten or motion to strike the defendant in any way at all.
The plaintiff gave evidence that before going to the premises he had been to a Commonwealth Bank to withdraw money to purchase some petrol but the auto-teller was not working. He said that he was very low on petrol and had to start work at seven o'clock the next morning. The plaintiff said that when he had telephoned Ms Willett before going to the premises he asked her if she would lend him $10.00 for petrol. He said that Ms Willett rejected this request and so he then asked for $5.00. The plaintiff effectively said that she replied "I will see when I get over here". The plaintiff also gave evidence that he intended to stop at the 24 hour service station on his way home from the premises and purchase $5.00 worth of petrol so that he would have enough fuel to get to work the following morning. He said that if Ms Willett told him that she would not lend him the money then that was "fine" and he "would solve the problem elsewhere".
The defendant cross‑examined the plaintiff on a variety of issues including the nature and extent of his alleged injuries. In cross‑examination the plaintiff gave evidence that the neck injury was the only injury he received as a result of the incident on the front verandah. The plaintiff said that the punching to his stomach which occurred in the carport only caused soreness for the next couple of days. The plaintiff also said that the pushing and thumping to his chest resulted in soreness but no injury. The plaintiff agreed with the defendant's proposition that his only long term injury was the injury to his neck.
The defendant was charged with the offence of unlawful assault in relation to this incident and the charge was heard in the Court of Petty Sessions on 23 February 1993. The defendant cross‑examined the plaintiff on why he made no mention of any injury to his neck when he gave his evidence at the hearing of the charge in the Court of Petty Sessions. The plaintiff said that the police had a report from his doctor and he assumed that the police would present it as evidence. The plaintiff also said that when he was waiting outside the courtroom to be called as a witness two police officers who had attended the premises on the night of the alleged assault said to him "Whatever you do, the prosecutor is skilled. Don't tell them too much. Let the prosecutor guide you through giving - he will know what to ask you".
During cross‑examination the defendant asked the plaintiff where, in relation to the plaintiff's car, did the plaintiff allege that he was pushed by the defendant. The plaintiff replied that it was not his evidence on that part of the incident that the defendant gave him a push. The defendant put part of the contents of a report from a hospital to the plaintiff which stated "put in headlock and forced his head into the side of the car". The plaintiff effectively accepted that he used these words at the hospital but in evidence sought to explain their use by saying that:
"Yes, but they are just words when you are talking to a doctor or somebody explaining what happened. You don't cover everything in fine detail. You just give them an idea how the injury occurred so they have got a better appreciation of the situation. I wasn't giving evidence. I wasn't trying to get them to decide who was right and who was wrong. They asked how the injury occurred."
Dr Benson gave evidence that he saw the plaintiff on 17 November 1992. At that time the plaintiff had already been to Sir Charles Gairdner Hospital and had sutures to the cut on his right lateral eyebrow sutured. Dr Benson gave evidence that the plaintiff complained of pain in his back and heaviness in his spine and buttocks. Dr Benson noted that the plaintiff had bruising around his right eye, some limitation of neck movement and tenderness in the stomach. Dr Benson also noted tenderness over the tenth thoracic vertebrae accompanied by visible bruising.
Dr Benson cannot recall prescribing any treatment on 17 November 1992 and he has no note that he did so. His only note of prescribing medication for the plaintiff was made on 5 January 1993. He said that as at 17 November 1992 both he and the plaintiff had assumed that the injury would probably settle down. He did not think that he referred the plaintiff to anyone until possibly March 1993 when he referred the plaintiff to Mr Edelman, a rheumatologist.
Dr Benson gave evidence that it was very hard to say whether pushing the plaintiff backwards and forwards was sufficient to cause the plaintiff's neck injury. He found it very difficult to comment without knowing the exact force involved. He added that all he knew was that the plaintiff's injury was temporally associated with the alleged assault.
The defendant gave evidence that he had not met the plaintiff prior to 15 November 1992. He said that he had commenced a relationship with Ms Willett sometime shortly before 15 November 1992. They had been out together during that day and they were both in the house on the premises when the plaintiff arrived with Justin in the evening. He said that when the plaintiff and Justin arrived at the premises both he and Ms Willett waited in the house for Justin to get out of the car and come inside. The defendant said that he did not want to go outside and confront Mr Meeks about being late because he had never previously met or spoken with the plaintiff.
The defendant gave evidence that when Justin came inside he said that the plaintiff wanted $10.00 for fuel. The rule against hearsay prevents this evidence from being used to conclude that this is what the plaintiff actually told Justin. It is merely evidence of what Justin said to the defendant and Ms Willett. Justin was told to go outside and tell the plaintiff that he would not be given any money. At this stage the plaintiff's car was still running and the headlights were on. The defendant said that after Justin returned inside the plaintiff did not leave and remained outside in his car.
The defendant gave evidence that he then went outside and said to the plaintiff "You're not getting the money and Cathy doesn't want to speak to you and would you please leave". He said that the plaintiff replied by saying, "Who the hell are you to tell me what to do?" The defendant then returned inside. He said the plaintiff remained outside in his car and so Justin was sent out again to speak with him. The plaintiff remained outside in his car after Justin had again returned inside. The defendant said that he then went outside because the plaintiff had still not gone and said to him "Look, just please - just leave. It's late. It's getting after 9.00. You've got the motor running. You've got the lights on. It's Sunday night. We just want to put the kids to bed and forget about this incident for the time being." The defendant said that he then went back inside the house thinking that the plaintiff would drive off.
The defendant gave evidence that after he returned inside the plaintiff remained outside in his car with the engine running for approximately another minute and then turned the engine off and walked to the front door of the house. The defendant said that Ms Willett was in a very worried state at this point in time.
The defendant says that when the plaintiff arrived at the front door he yelled out quite loudly "Cathy, I've got to speak to you". The defendant said that he then went to the front door and the plaintiff again yelled out that he wanted to speak to Ms Willett. The defendant said that he then opened the front door and again asked the plaintiff to leave at which time the plaintiff made an attempt to move around him and into the doorway. The defendant also said that he told the plaintiff if he didn't leave he would call the police. The defendant thought that the plaintiff was attempting to get inside the house. He said that he put his arm out to stop the plaintiff as the plaintiff was moving forward. He grabbed the plaintiff and pushed him backwards in an attempt to get him outside and close the front door.
The defendant said that he did not succeed in closing the front door and the plaintiff continued to push towards him and again yelled out to Ms Willett that he had to speak to her. He said that it was during this altercation and when he grabbed the plaintiff's shirt that the plaintiff slipped and fell on the front verandah at the doorway and effectively dragged him down. The defendant also said that the plaintiff's glasses came off when they both fell to the verandah floor.
The defendant gave evidence that he then pushed the plaintiff to the chest causing him to move away from the front porch. He said that the plaintiff tried to get back to the porch and so he grabbed him as in a bear hug and simply walked him to his car. He said that when he was about a metre in front of the car he released the plaintiff and pushed him on the back and towards the driver's door of the car. He added that when he pushed the plaintiff he had no idea that there was a sun visor or wind visor on the side of the driver's door of the plaintiff's car.

During the defendant's evidence-in-chief he said that he did not punch the plaintiff or put him in a headlock. In cross‑examination he was referred to the transcript of the criminal proceedings where it was recorded that he said in evidence that he gave the plaintiff a quick punch to the side of his back and another one to the stomach during the struggle at the doorway. The plaintiff accepted that he gave this evidence in the criminal proceedings. When asked to explain the inconsistency he simply indicated that he had said there was no punching because he believed that to be so. He added that his memory of the event is still "pretty strong".
The defendant accepted that he was asked in the criminal proceedings why he grabbed the plaintiff in a headlock and that his response was "well, it wasn't a headlock. It was around the shoulders". He also accepted that he was asked how he grabbed the plaintiff around the shoulders and his response was "Well, like, its very similar to a headlock but you grab him on the upper arms, around the arms." The defendant also accepted that in the criminal proceedings he did not mention that he and the plaintiff "crashed to the ground" during the struggle at the doorway. When asked why this was not mentioned he said "I suppose because of the same reason that Mr Meeks didn't mention certain information at the same hearing".
The defendant was cross‑examined about him pushing the plaintiff towards the driver's door of the plaintiff's car. When asked about the force with which he pushed the plaintiff he said that it was probably enough to get him to the door. He agreed that the plaintiff was not bleeding before he pushed him towards the car door. In relation to this part of the assault the defendant said "it had to be remembered that the car headlights were on and you cannot see a car when the headlights are shining directly into your eyes".
The defendant rejected the suggestion put to him in relation to the incident as a whole that he got angry towards the plaintiff and lost control. He said that it was the plaintiff who got angry and lost control. The defendant also gave evidence that he was the defender and the plaintiff was the offender. He added that he was protecting Ms Willett from the unknown.
Findings
The charge of assault against the defendant was dismissed. It is trite to say that the plaintiff's action should not be dismissed because the charge of assault was dismissed. In the criminal proceedings the prosecution carried the onus of proving every element of the offence of assault beyond reasonable doubt. The burden was also on the prosecution to negative provocation and self‑defence. I have no idea whether authority of the sort provided in s254(3) of the Criminal Code was ever an issue in the criminal proceedings but if it was and the defendant properly raised it on the evidence then the prosecution carried the burden to negative it beyond reasonable doubt. If an assault was proved then the prosecution carried the onus to negative that it was authorised, justified or excused by law.
In civil proceedings the position is different in two material respects. First, the plaintiff carries the onus of establishing an assault and the onus of proof is the lesser standard of on balance of probabilities. Secondly, if the plaintiff establishes that an assault occurred then it is for the defendant to establish on balance of probabilities that it was authorised, justified or excused by law. In this case the defendant has pleaded that the plaintiff was a trespasser on the premises and attempted to enter the home on the premises without authority. The defendant has also pleaded that he used no more force than was reasonably necessary to prevent the plaintiff from entering the home. The onus is on the defendant to prove these things on balance of probabilities.
In cases of assault whether they be heard in the criminal jurisdiction or the civil jurisdiction, the assessment of the credibility and reliability of the respective parties to the assault or the alleged assault is crucial to the final outcome. In this respect this particular case is no different to most.
In my opinion the plaintiff was unimpressive and unreliable in relation to various parts of his evidence. He was also generally prone to exaggerate and dramatise to bolster his case and this was particularly so when he described what took place at the front door. According to the plaintiff the most severe of all of his injuries was his neck injury which occurred at the front door when he heard his neck crack. He indicated that the injury to his neck has continued to be severe ever since the accident. By 23 February 1993 when the plaintiff gave evidence in the Court of Petty Sessions more than three months had elapsed since the date of the incident and the laceration to his right eyebrow would have most likely healed leaving any neck injury and its related symptoms as the only lasting legacies of the incident. With the advantage of having observed the plaintiff give evidence I have no doubt that if his account of what took place at the front door was accurate then he would have made some mention of his neck injury when he gave evidence in the Court of Petty Sessions. The plaintiff said that he didn't mention his neck injury in the criminal proceedings because he wasn't asked about it and yet during his evidence in these proceedings he first spoke of "a large crack at my neck" without being asked about it.
The plaintiff rejected the suggestion that he should have expected a bit of tension in the air if he visited his recent girlfriend's place with her new boyfriend there. He gave evidence that he would not have had any problem doing so. Frankly I gained the impression from observing the plaintiff that he would like to think that he coped well with the separation whereas in reality he did not. His use of Justin, who was only 8 years of age at the time, as a go‑between lacked sound judgment.
When the plaintiff was cross‑examined he said that "prudence tells me I shouldn't have even been anywhere near the house". The fact of the matter is that at the material time he was there and he remained there knowing that Ms Willett's boyfriend, who he came to know to be the defendant, was inside the house. Even on the plaintiff's own evidence he was at the premises for up to 10 minutes before he went to the front door and during that time he was given one message by Justin that his mother, Ms Willett, did not want to talk to him, a request by the defendant to leave and another message by Justin that his mother would be out in 30 seconds. For a period of up to 10 minutes Ms Willett did not come out of the house to talk to him. Further, when he went to the front door Ms Willett did not come to the door after he had called out to her. Even before the plaintiff went to the front door it should have been obvious to him that it was not reasonable in the circumstances for him to remain there and insist that he speak with Ms Willett. It should have also been obvious to him that Ms Willett did not wish to speak with him.
In my opinion the plaintiff was making a nuisance of himself at the premises. That is not to say that he deserved to be assaulted. The point is that the plaintiff's lack of sound judgment at the premises is something to take into account when assessing his reliability as a witness on matters of fact.
The plaintiff sought to make out that it was necessary for him to talk with Ms Willett about her lending him $5.00 or $10.00 for petrol. In my opinion it was not necessary at all. He said he did not have any money because the auto‑teller he went to was not working. I have no doubt that he could have accessed another auto‑teller somewhere between Swanbourne where he lived and Manning where Ms Willett lived. It must be borne in mind that the plaintiff was satisfied that he had enough petrol to drive from his home in Swanbourne to Ms Willett's home in Manning and return and to work the next morning with the amount of petrol he had in his car. It is therefore highly likely that he had enough petrol to locate another auto‑teller.
The plaintiff initially gave evidence that he had to start work the next morning at seven o'clock and that garages did not open until seven o'clock in the morning. I think that he most likely gave this evidence to make out that he needed money to enable him to get some petrol at a 24 hour station on the night of the incident so that the petrol would be in his car the next morning to ensure that he had enough petrol to drive to work before the garages opened. It caused me concern when later in his evidence he said that he had to leave home at seven o'clock in the morning to go to work and that he needed more fuel in his car before he left for work to ensure that he could get to work and later drive to a garage after work.
I am not satisfied that the plaintiff needed to pursue Ms Willett for money for petrol on the night of the incident. Indeed I am satisfied that he did not need to do so. Given this finding, the fact that he persisted in wanting to speak with Ms Willett about her lending him money reflects poorly on the plaintiff and his judgment at the time.
Although there are some inconsistencies between the defendant's evidence in the Court of Petty Sessions and his evidence in this Court they do not cause me to discount his evidence on the particular acts which constituted an assault against the plaintiff. While there is an inconsistency in the defendant's evidence on the issue of punching I note that the admissions he eventually made in this hearing on punching relate to the struggle on the verandah. The plaintiff alleged that he was punched in the carport and not on the verandah. There was no clear and unequivocal admission by the defendant in the Court of Petty Sessions that he dragged the plaintiff from the carport to the plaintiff's car and that he held his right arm around the plaintiff's neck when he did so.
The only evidence that Dr Benson could give on the connection between the alleged assault and the plaintiff's neck injury was that they were temporally associated. He also said that it would have taken a considerable amount of force to have caused the plaintiff's neck injury. The matter is not before me to determine the issue of causation however in cases such as this it is not unusual for the nature and extent of the plaintiff's injuries and accompanying symptoms to be considered and taken into account with all of the direct evidence on the assault itself in order to determine the issue of liability.
The plaintiff said that he suffered a herniated disc at C6-7 as a result of that part of the assault which occurred on the verandah near the front door. There is no medical evidence to support this. Dr Benson made no mention of it. It is not open on the evidence to conclude that the plaintiff had any medication for any neck related pain until about seven weeks after the incident. There is no evidence that the plaintiff received any other treatment for his neck from Dr Benson or anyone else within at least a few months or so of the incident.
In the final analysis the weight of the evidence on the plaintiff's neck injury when weighed with all of the other evidence does not cause me to prefer the plaintiff's version of the assault to that of the defendant. Having regard to the whole of the evidence, on balance I prefer the defendant's version.
For all these reasons the plaintiff has not established that he was assaulted as he has alleged. That is not the end of the matter because the defendant's evidence contains admissions that he assaulted the plaintiff albeit in a factually different way to that alleged by the plaintiff. The defendant has admitted that he pushed the plaintiff to the chest at the front door/verandah area, put him in a bear hug and walked him from the verandah to his car and when at the car pushed him in the back towards the driver's door of the car. It is necessary for the defendant to prove on balance that these actions were authorised, justified or excused by law.
The defendant's case is that he conveyed Ms Willett's request to the plaintiff that he leave the premises, that the plaintiff attempted to enter the house on the premises without Ms Willett's permission and that he used no more force than was reasonably necessary to prevent the plaintiff from entering the house.
I find that the plaintiff had no permission from Ms Willett to enter the house. The plaintiff was well aware that he had no permission to enter the house. That is why he waited outside for up to 10 minutes, used Justin as a go‑between while he waited outside the house and Ms Willett was inside the house, and called out to Ms Willett when he first arrived at the front door rather than walking inside when the door was open at the time.
I find that Ms Willett did not want to talk with the plaintiff. This is clear on the evidence which shows that she did not present herself to the plaintiff and/or say anything to him for the whole time the plaintiff was at the premises. I accept the defendant's evidence that he asked the plaintiff to leave on a number of occasions. I find that he did so because Ms Willett did not want to talk to the plaintiff. I also find that when the defendant requested the plaintiff to leave he did so with the agreement of Ms Willett.
I accept the defendant's evidence that the plaintiff attempted to enter the house through the front door. I am satisfied that the defendant's preventative response of pushing the plaintiff to the chest and a punch to each of the back and stomach was reasonable in the circumstances. There is no reason to think that anything other than short term soreness resulted from the punches. I am also satisfied that it was reasonable for the defendant to have placed the plaintiff in a bear hug and walk him to his car.
It is when the defendant got to the plaintiff's car that I think he crossed the bounds of reasonableness. I find that the plaintiff received the laceration about his right eye when he came into contact with his car as a result of the defendant's push. Whether the plaintiff's head hit the edge of the roof of the car or the weathershield on the top of the driver's door is of no significance. The defendant should not have pushed the plaintiff towards the driver's door when he was so close to the car. I am not satisfied that the defendant was so blinded by the headlights of the car so as not to appreciate the actual position of the car. The car was parked on the driveway close to the roadway and well away from the front door of the house. The defendant should have simply released the plaintiff from the bear hug when they were close to the car.
Conclusion
For all these reasons I find that on 15 November 1992 at the premises the defendant did assault the plaintiff in a way that was not authorised, justified or excused by law and that such assault was constituted by the defendant pushing the plaintiff into the plaintiff's car causing the plaintiff to sustain a laceration to the right lateral eyebrow. The plaintiff's claim for damages should be assessed on this basis.
I will hear from the parties on the question of costs.