Miller v Muir
[2013] WADC 6
•21 JANUARY 2013
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: MILLER -v- MUIR [2013] WADC 6
CORAM: BOWDEN DCJ
HEARD: 11 - 13 DECEMBER 2012
DELIVERED : 21 JANUARY 2013
FILE NO/S: CIV 2529 of 2010
BETWEEN: HELEN FRANCIS MILLER
Plaintiff
AND
CELESTE MARIE MUIR
Defendant
Catchwords:
Police attendance at domestic disturbance - Police officer assaulted by plaintiff in the first incident - Plaintiff assaulted by police officer in the second incident - Provocation, at common law and under the Criminal Code, as at defence to civil assault - Malice under the Police Act 1892 - Aggravated damages - Police officer assaulted by plaintiff in third incident - Plaintiff acting in self-defence in third incident
Legislation:
Criminal Code
Criminal Code Compilation Act 1913
Police Act 1892
Result:
Ms Miller awarded $6,000 damages for the assault upon her by Constable Muir during the first incident
Constable Muir awarded $6,000 damages for the assault upon her by Ms Miller during the second incident
Representation:
Counsel:
Plaintiff: Mr I Marshall
Defendant: Ms K Vernon
Solicitors:
Plaintiff: Aboriginal Legal Service of Western Australia (Inc)
Defendant: Lyn Zinenko Lawyers
Case(s) referred to in judgment(s):
Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419
Armstrong v The State of Western Australia [2012] WASCA 42
Briginshaw v Briginshaw (1938) 60 CLR 336
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44
Fontin v Katapodis (1962) 108 CLR 177
Government Insurance Office of NSW v Aboushadi [1999] NSWCA 396
Hancock v Beard (Unreported, WASC, Full Court 171 of 1995, Library No 960675, delivered 27 November 1996)
Ives v The State of Western Australia [2010] WASC 178
JLW v DRH [2004] WADC 214
Jones v Dunkel (1959) 101 CLR 298
Lamb v Cotogno (1987) 164 CLR 1
Law v Wright [1935] SASR 20
LMC (by her next friend The Public Trustee in and for the State of Western Australia) v RJO [2002] WADC 147
New South Wales v Ibbett (2006) 229 CLR 639
New South Wales v Riley (2003) 57 NSWLR 496
Noye v Robbins; Noye v Crimmins [2007] WASC 98
Pearce v Hallet [1969] SASR 423
Pollock v The Queen [2010] HCA 35
Powell v The Queen (Unreported, Library No 4004, CCA 115 of 1980, delivered 2 December 1980)
R v Duong, Sem & Huynh (2011) 210 A Crim R 452; [2011] SASC 121
State of New South Wales v Koumdjiev (2005) 155 A Crim R 186
Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118
Walker v Hamm (No 2) [2009] VSC 290
Wenn v Evans (1985) 2 SR(WA) 263
West Australian Newspapers Ltd v Bridge (1979) 23 ALR 257; (1979) 53 ALJR 465
Zecevic v Director of Public Prosecutions (DPP) (Vic) (1987) 162 CLR 645
BOWDEN DCJ: On 19 August 2007 police were called to an address in Narrogin by Mr Smith following an argument involving himself, his partner Ms Miller, and their eldest son.
Constable Dunjay, Constable Holtzman, Constable Muir and Aboriginal Police Liaison Office Bolton attended the residence.
This action results from that attendance. Ms Miller alleges she was assaulted by Constable Muir on two separate occasions (the first and second incidents), however only pursues this civil action in respect of the second incident.
Constable Muir admits she assaulted Ms Miller during the second incident and by her pleadings, amended on the morning of the trial, claims, inter alia, that she is not civilly liable because she was provoked.
By her counterclaim Constable Muir alleges she was assaulted by Ms Miller during the first and third incidents. Ms Miller admits these assaults but says she was acting in self defence.
The issues to be determined are as follows:
1.What occurred in the first incident? Did Constable Muir assault Ms Miller or did Ms Miller assault Constable Muir?
2.What occurred in the second incident? Was Ms Miller assaulted by Constable Muir striking her twice to the back of her head with her elbow or by punching her once to the back of the head?
3.Was Constable Muir's assault carried out with malice?
4.Is provocation a defence to a civil claim for assault?
5.Should aggravated damages be awarded to Ms Miller for the assault upon her by Constable Muir?
6What occurred in the third incident? Did Ms Miller assault Constable Muir by grabbing her hair with both hands or grabbing her hair and punching her several times to the face and if so were her actions in self Defence?
7.What injuries were received by Ms Miller and Constable Muir during the assaults and what is the appropriate assessment of damages for those injuries?
The claim and counterclaim are actions for trespass to the person. Both parties, in their pleadings and at the trial, referred to an 'assault' as it is used in common parlance that is to describe what in law is a battery.
Battery is intentionally bringing a harmful or offensive contact with another person's body, whereas assault is intentionally creating in another person an apprehension of immediate harmful or offensive contact.
To accommodate the pleadings and the manner in which the word assault was used at trial I have used that word throughout this judgment as encompassing what in law is a battery.
Although these are civil proceedings I have applied the Briginshaw v Briginshaw (1938) 60 CLR 336 standard of proof.
The evidence
Helen Francis Miller
Ms Miller says that on 19 August 2007 she was at home with her partner of 17 years, Mr Smith, their five children, and a female friend.
She became involved in an argument with her eldest son and Mr Smith. Ultimately she struck her son and Mr Smith called the police.
Ms Miller says she hit her son because he was swearing and saying unpleasant things to her. Ms Miller was also upset at Mr Smith and felt he was not listening to her side of the story and was taking away some of her parental rights, including the opportunity to discipline her son.
Ms Miller was on the veranda with her friend when APLO Bolton and Constable Muir came to speak to her. As she felt more comfortable speaking to APLO Bolton she told Constable Muir to 'shut your hole'. Constable Muir then waited at the bottom of the veranda steps and APLO Bolton came up the steps and spoke to her.
Ms Miller said she then received a police order preventing her from returning to her property or contacting her son for the next 24 hours and the police made arrangements for her to leave the residence and stay at a hotel, as the women's refuge was full.
Ms Miller said she was upset about the arguments and because Mr Smith had called the police over a family matter and became more upset and angry when the police order was issued as she did not consider one was required.
She said her partner called the police because he liked to dramatise everything.
Once she was told of the police order she went inside the house to obtain some items and when she came outside walked towards the road and towards Mr Smith. She threw some coins at him, intending to hit him, because she was upset and angry. Regrettably one of the coins hit her daughter who started crying.
Ms Miller said Constable Muir then grabbed hold of both of her hands by the wrists and raised them up above her head however she broke free by bringing her hands down rapidly and apart and commenced to walk away.
She claims Constable Muir then delivered, with a clenched fist, a blow to her face, followed by three or four more punches to her face.
Ms Miller said she then grabbed Constable Muir by the hair with one hand and commenced to punch her to the face three or four times with the other hand. She agreed she may have pushed Constable Muir's head downwards as she delivered those punches (the first incident).
Ms Miller said she punched Constable Muir because she had to defend herself.
They both ended up on the ground with her holding Constable Muir's hair, or head, and she let go as she saw Constable Muir's police jacket and reflected on what was occurring.
She said no-one intervened to separate them.
Ms Miller said she then walked towards the front driveway and was about 3 m away from Constable Dunjay, who was at the police vehicle, when he said 'you're under arrest'.
Constable Dunjay, then lent her against the police van and Ms Miller said she looked over her shoulder and saw Constable Holtzman helping Constable Muir off the ground about 5 m away.
Ms Miller said Constable Muir got up and rushed 'in a running position' towards her saying 'you're under arrest' and she asked 'what for'. Ms Miller said she turned back to face the police van and then felt two hits to the back of her head causing a sharp pain and causing her head to move forward on each occasion and hit the top of the car bonnet (the second incident).
She said it felt like Constable Muir had run and jumped at her using all her body weight.
Although she did not see the blows Ms Miller said they were delivered with an elbow and upper arm, not fists, and it felt as if she was being pushed with the elbow across the back of the head.
She said the blows caused her to feel 'a bit dizzy'.
She said Constable Dunjay then grabbed her by the collar, putting his left forearm on the upper part of her chest and across her throat causing her to choke. Although he had hold of her upper garment she was able to lift her arms up and grab Constable Muir hair with both hands (the third incident).
Mr Smith then told her to 'let go of her hair' and intervened by untangling her hand from Constable Muir's hair.
Ms Miller then stood next to the right hand side of the police vehicle and got in it and was taken to the Narrogin Police Station.
Paul William Holtzman
Mr Holtzman is a first class constable stationed at Wyndham and on 19 August 2007 was a constable stationed at Narrogin.
Upon arrival at the address he met Mr Smith and in due course issued a 24‑hour police order on Ms Miller, who protested and claimed there was no need for the police to be involved.
He permitted Ms Miller to re‑enter the house to obtain her belongings and when she came out, she walked in the direction of the road and yelled to Mr Smith words to the effect of 'I'm going to kill you, you dog cunt' and 'you're going to get smashed you black dog' and threw a handful of coins in his direction.
Constable Holtzman heard a child, who was standing in close proximity to Mr Smith, cry out. Ms Miller continued to yell at Mr Smith and started running towards him causing the officer to believe that she wanted to become involved in a physical altercation with Mr Smith.
Constable Holtzman said Constable Muir stepped between Mr Smith and Ms Miller and put her open palmed hands up in front of her in an effort to stop Ms Miller reaching Mr Smith.
He said Ms Miller took hold of Constable Muir by the hair with one hand and pulled her head downwards and punched Constable Muir's face and head four or five times with her other hand. They both fell to the ground whereupon he, Constable Dunjay and APLO Bolton separated them (the first incident).
He said APLO Bolton and Constable Dunjay pushed Ms Miller away and he took hold of Constable Muir and helped her to her feet. He said Constable Muir was only able to get to her feet due to his assistance.
Constable Holtzman asked Constable Muir some general welfare questions, to which he received no reply and he then checked her. He described Constable Muir as dazed, but not groggy, and said it appeared she was not listening or focussing although she was looking around in what he believed was an attempt to asses the situation.
He said Constable Muir looked over at Ms Miller, for 3 or 4 seconds yelled out 'you are under arrest' and ran over behind Ms Miller and struck her in the back of the head or the upper back once with either her left fist or left elbow (the second incident).
At that time Ms Miller was about 1 m away from the police vehicle and only inches away from Constable Dunjay. She was facing towards the police vehicle and away from Constable Muir. Although he said Ms Miller 'rocked or moved forward', he said she did not stumble or fall forward or bend over and he did not see her head strike the bonnet.
He said Constable Dunjay had not placed Ms Miller under arrest or in handcuffs at the time of the second incident nor did he have hold of her.
He said he could not be precise as to the type of blow or where it landed as he could not see clearly due to his vision being obscured by Constable Muir's body.
He estimated that he was 6 m to 7 m away from Ms Miller at the time of the second incident.
He said that Ms Miller, once struck, turned, grabbed Constable Muir hair and started to punch her to the head and/or face region (the third incident) and he and others then separated them.
Delson Vernon Smith
Mr Smith told the court his partner, Ms Miller, and their eldest son were involved in an argument, which included the son swearing and abusing Ms Miller, and she hit their son. Mr Smith said he was drawn into the argument and as things were getting out of hand he rang the police because they 'needed to separate people for a while'.
He said Ms Miller was angry at their son and at him for calling the police and was still angry when they arrived.
He said she was also angered by the 24‑hour police order, and the fact it was issued in favour of the son. This occurred because Mr Smith did not want it issued in his favour as he thought it might affect his prospects of having his firearms licence returned.
After the 24‑hour police order was issued he said he was standing on the driveway of the house. Ms Miller was walking from the veranda to the driveway. When she was about 5 m away and walking towards him she threw some coins which hit their daughter Lisa.
He said at the time the coins were thrown Constable Muir was standing on the left hand side corner of a church bus which was parked on their property and she jumped or stepped out (the words were used interchangeably) in front of Ms Miller, so that the two women were facing each other, and grabbed her.
He said the two women were wrestling and it looked like they were grabbing each other and they both went to the ground where they wrestled and grappled.
Although his view of Ms Miller was obscured by Constable Muir after she jumped out, he said he had a clear view of Constable Muir and her shoulder movements as he was looking at her back from a distance of about 4 m to 5 m.
He demonstrated in court with the movement of his shoulders backwards and forwards and from left to right and with each arm at about upper chest height and slightly, thou not fully, extended how the two were grappling before they went to the ground. He agreed he did not see Constable Muir's hands, but maintained he saw her shoulder and arm movements and said they were directed at Ms Miller and it looked like she had a 'clenched fist or had hold of Ms Miller's arm' (ts 113).
He said he did not see Constable Muir strike Ms Miller to the face.
He walked over and broke them up by pushing them apart whilst they were still 'scrapping on the ground' (the first incident).
He said Ms Miller then walked to the front of the yard and Constable Dunjay said 'you're under arrest for disorderly conduct', grabbed her and took her to the front of the police vehicle where she stood with her hands by her side.
He said Constable Muir ran in, or 'diving straight in', took three good steps and hit Ms Miller to the back of the head from behind with what looked like an elbow. Although he said the rest of Ms Miller's body could not move, because it was in between Officer Dunjay and the vehicle, her head went forward (the second incident).
Ms Miller then took Constable Muir by the hair and within seconds he went over, got in between the two and untangled Ms Miller's fingers from Constable Muir's hair (the third incident).
He said that after he separated them he said to Constable Muir 'you're a silly young girl for doing that, hitting Helen in the back of the head …' to which Constable Muir replied 'I did nothing wrong', about 2 seconds later APLO Bolton said to Constable Muir 'everything was under control, you did not have to do that'.
Objection was taken to the admissibility of Mr Smith's evidence of APLO Bolton's above mentioned remark.
The remark was made spontaneously. It was approximately, but not immediately, contemporaneous with the incident and made in such conditions of involvement or pressure from the incident as to exclude the possibility of concoction or advantage to Ms Bolton or disadvantage to Constable Muir: Armstrong v The State of Western Australia [2012] WASCA 42 [46] ‑ [50] (Buss JA). It is admissible as part of the res gestai, as a statement made spontaneously by an observer to the events immediately after the event. It is admissible even though APLO Bolton gave no evidence of having made the remark: R v Duong, Sem & Huynh (2011) 210 A Crim R 452; [2011] SASC 121.
It is admissible as an exception to the hearsay rule and as evidence of the truth of its contents notwithstanding that it contains a statement of opinion: Heydon, Cross on Evidence, 9th ed, par 37150, however the weight I attach to the remark, as a result of APLO Bolton not being questioned about it and considering it was an expression of her opinion, is negligible.
Mr Smith said he saw Ms Miller the next day, although he could not recall where, and observed a small bruise to her face or, using what he described as doctor's terminology, 'a soft tissue bruising to her face'.
He described it as little pink spot with slight bruising. He later said it was not bruising as in purple, pink or red but was just a little bit of skin colour difference, or a slight colour change, which he found hard to explain particularly as there were difficulties describing a bruise on an Aboriginal person.
He agreed that in a statement made on the 3 June 2008 he did not mention seeing Ms Miller the day after the incident and said in that statement that when he saw her a few days later he did not notice any injuries to her face.
Murrel Charmaine Bolton
In August 2007 Ms Bolton was an Aboriginal Police Liaison Officer (APLO) at the Narrogin Police Station. She served 10 years and 9 months as an APLO ceasing service in 2009.
When she went to the premises, Ms Miller was on the veranda with another female and called on her to approach. However, when Constable Muir approached the veranda Ms Miller was verbally abusive and swore at her effectively telling her not to enter onto the veranda so Constable Muir stood at the bottom of the steps.
APLO Bolton said Ms Miller was angry and told her about the incident with her son and claimed it was a family matter and had nothing to do with the police.
She said that if Mr Smith obtained alternative accommodation Ms Miller would have been able to remain at the residence, however the children did not want to stay at the house with their mother.
APLO Bolton said she radioed the police station to help find accommodation for Ms Miller.
APLO Bolton said that whilst she was on the footpath she heard Ms Miller abusing Mr Smith saying something along the lines of 'I'm going to kill you, you black dog' and heard the sounds of coins being thrown and a child cry out.
She said at this stage she was about 1/2 m away from the police van. Ms Miller was in the yard, about 10 m from her.
Ultimately her position in respect of the first incident was that her evidence to the Narrogin Courthouse on 12 March 2008, to the effect that Ms Miller was rushing towards Mr Smith when Constable Muir put her hands up in front of her body to intervene and Ms Miller said 'well you shouldn't have done that' and punched Constable Muir several times and they then both fell to the ground, was the truth (the first incident).
She also agreed that she had made a statement to police in November 2007, which was true and correct, which said she saw Constable Muir put her hands up to intervene between Ms Miller and Mr Smith but she was not sure if there was any connection with Ms Miller's face and then Ms Miller yelled 'you shouldn't have done that' and punched Constable Muir with a clenched fist.
She told this court that Ms Miller was restrained after the first incident. She said Constable Muir walked out of the yard and was standing behind her when Mr Smith came towards them, so APLO Bolton extended both her hands in a motion to stop him.
She said Officer Dunjay then walked Ms Miller to the police car.
APLO Bolton said Ms Miller was about 5 m away from Constable Muir but only inches from Constable Dunjay, with her back to both Constable Muir and APLO Bolton when Constable Muir ran straight over, lifted up her right elbow and then in a downward motion struck her twice to the back of the head (the second incident).
APLO Bolton saw Ms Miller's head nod or move forward twice but was not able to say how far away Ms Miller's head was from the vehicle.
Ms Miller turned immediately, reached out, grabbed hold of Constable Muir's hair and started punching her and they, together with Constable Dunjay, went to the ground (the third incident).
APLO Bolton said she and others then separated them.
Celeste Marie Muir
Constable Muir joined the police force in April 2005 and graduated from the academy in December 2005. She was first stationed at Narrogin in 2006 and is currently a First Class Constable at Karratha.
She said that when she arrived Ms Miller would not talk to her or answer her questions and kept turning to talk to APLO Bolton instead.
She said Ms Miller was abusing her elder child saying words to the effect of 'I'll make you pay for this, I'll make you piss'.
Constable Muir said that when the 24-hour police order hour was issued, arrangements were made to find accommodation for Ms Miller and the police were going to drive her to that accommodation.
Constable Muir said she went to the driveway and was near the kerb with Mr Smith. Ms Miller commenced to walk down the path towards them and Constable Muir told Mr Smith not to react to any verbal abuse he may receive from Ms Miller, and she then heard the sound of what she thought were coins being thrown.
Constable Muir turned around and saw Ms Miller rush toward Mr Smith and it appeared as if she was about to attack him.
Constable Muir stepped between the two of them and put both of her hands straight out in front of her with the palms open. Ms Miller then threw her arms up in the air, knocking Constable Muir's arms out of the way and grabbed a 'chunk' of Constable Muir's hair from the very top of the head, pulled her head forward and downwards and delivered five to six hard punches to the left side of her face, around the temple and eye area. Constable Muir said she then fell to the ground (the first incident).
Constable Muir's said she was in such a state of shock that she did not block any of the punches or attempt to use any of the accoutrements (baton, handcuffs, pepper spray) attached to her police belt.
Constable Muir's said she had never been punched previously and when the punching stopped she lay on the ground and could not focus for a few seconds. She said she was in pain, shocked and dazed and Constable Holtzman helped her up.
She then stood there and focussed for a couple of seconds and went over to Ms Miller, who at that stage was alone and walking around the top of the driveway about 3 m or 4 m away. She said she did not run but did 'quicken her pace'.
She said she went over to Ms Miller because she was by herself and when she was about 1/2 m to less than a metre away told her she was under arrest. Ms Miller turned her head looked back at her and responded aggressively 'what for?'
Constable Muir said she could not believe her ears when she heard that remark and got really angry, although not filled with rage. She said the remark and they way it was delivered tipped her over the edge. She said she did not completely lose it but was beyond thinking straight.
She said it was not the remark alone that caused her to lose control but rather the combination of the remark, the manner it was delivered and the previous incident whereby she had been punched five or six punches to the face and her hair had being pulled.
Constable Muir said she went up and punched Ms Miller in the back of the head once, with her left fist. She said it was neither a full force nor a light blow and said her hands actually slipped past Ms Millers head at one stage. Constable Muir said she felt pain in her hand as a result of the blow being delivered (the second incident).
Constable Muir said Ms Miller's head did not hit the vehicles bonnet.
Constable Muir explained that part of the reason for striking Ms Miller was that she wanted to cause her pain, but at the time she was dazed, angry, saw red and was not thinking clearly and did not have time to cool down or think as her mind was in shock. Although she agreed she gave way to anger she said she was not focusing at that stage and acted without thinking.
Constable Muir said she lost control for a split second and regained her composure after she had delivered her punch.
After the blow Ms Miller turned around and grabbed her by the hair, pulled her head downwards with one hand and then, with the clenched fist of the other hand, gave her four or five hard punches to the face and she ended up on the ground with Ms Miller standing over the top of her (the third incident).
Constable Muir said she was screaming due to the pain and because she did not think the assault would stop and even lost control of her bladder.
Eventually the punching stopped and other assisted in untangling Ms Miller's hands from her hair.
Ms Miller was taken away and Constable Muir said she got to her feet. Mr Smith said 'you shouldn't have done that you stupid white girl' to which she replied 'I didn't do anything'.
She said she only punched Ms Miller because she was provoked. She said she was not trying to assist Officer Dungay perform his duties or acting in self defence or acting to prevent Ms Miller from committing any offences nor was she retaliating or attempting to even the score.
She said she knew about provocation as result of her police training and general reading. She said the issue of provocation had been first raised by her when she spoke to her sergeant within days of the incident.
Some general matters
The party alleging an assaulted must prove it occurred on the balance of probabilities. The party admitting an assault but raising a defence must prove that defence on the balance of probabilities.
I may accept all of, or part, of a witness's evidence and reject a witnesses' evidence in part or in its entirety.
Consideration must be given to the fact that the witnesses were recalling events which took place unexpectedly within a short period of time and over 5 years and 4 months ago.
It was suggested by counsel for the defendant that a Jones v Dunkel (1959) 101 CLR 298 inference should be drawn against the plaintiff for their failure to call Constable Dunjay. Such an inference is only available if, inter alia, the evidence that the witness could give is not unimportant, cumulative or inferior to the evidence called and the witness is not equally available to both parties. There is nothing to indicate Constable Dunjay was not equally available for the defendant to call. I also note the defendant did not call Constable Dunjay to support their counterclaim.
I do not draw any inference of any type against either party as a result of Constable Dunjay not being called as a witness.
Findings on credibility
Although there is some common ground between the witnesses, credibility is a crucial issue.
It is well to remember the remarks of Chief Justice Burt in Powell v The Queen (Unreported, Library No 4004, CCA 115 of 1980, delivered 2 December 1980):
Assault cases, simple as they may be, are in my experience very difficult to try. They are difficult to try because the events are of short duration, they happen as often as not in circumstances where they cannot clearly be seen, and is not easy at the end of the day to say with any degree of certainly just what happened, nor is it easy, nor is it common that one can produce a witness who, with any degree of objectivity can tell the court what happened.
Although those remarks were made in the context of a criminal trial for assault they apply, in my opinion, equally to civil trials.
My findings on the credibility of each witness are as follows.
Helen Francis Miller
There were some unsatisfactory aspects of Ms Miller evidence.
In evidence‑in‑chief, when asked whether she drank alcohol Ms Miller replied 'no'. When challenged she replied she actually meant she was not drunk on that night and then admitted that on special occasions she drank alcohol including on some occasions drinking 6 to 12 cans before going to bed.
When first asked if the police had been called because she struck her son she replied 'I wouldn't' and said she would 'never' strike her son. It was only when further challenged that she conceded she 'might' have and then said that 'she thought she had', struck him, explaining that she had forgotten doing so until reminded in the witness box.
Her evidence was often unsupported by any other witness or contradicted by them, for example, she is the only witness who gave direct evidence that she had been punched by Constable Muir in the first incident and that her head had hit the bonnet during the second incident. She said no‑one separated them at the conclusion of the first incident, were as both Constable Holtzman and Mr Smith contradict this.
Her account of what occurred is largely contradicted by APLO Bolton, a person who she felt comfortable talking to on the day in question.
I find Ms Miller has a tendency to avoid responsibility for her actions by minimize her role and justifying her position by blaming others. For example when she struck her son, after initially denying that she did, her justification was that he was swearing and being abusive. When she argued with her husband, her justification was that he was not listening to her and was taking their son's side and that he was wrongly interfering with her right to discipline her son. When the police were called the justification was that her husband had over dramatised the incident and the police should not intervene because it was a family matter. On other occasions when restraining orders were issued against her, her justification was that she was 'hard done' by.
I find that by the time the incident occurred Ms Miller was angry with almost everybody at her premises. She was so angry with her son that she struck him, she was so angry with her husband that she verbally abused him, including threatening to kill him and threw coins at him intending to hit him.
She was angry that the police were involved and was not prepared to speak to Constable Muir telling her to 'shut your hole, I don't want to talk to you'. She felt the police were intervening in a family matter and subsequent events such as the issue of a 24‑hour police order, requiring her to leave the property, and baring her from contacting her son compounded her anger.
Ms Miller's anger and lack of control of her behaviour on the day, and demonstrated tendency to avoid responsibility for her actions by minimize her role and blaming others and the other factors I have referred to lead me to conclude that her evidence lacks objectivity and cannot be relied upon unless supported by other reliable evidence.
Paul William Holtzman
As a police officer, Constable Holtzman obviously has the benefit of training and experience and is familiar with the legal process and there is a need to guard against thereby artificially enhancing his credibility as a result of those factors alone.
Even bearing that warning in mind I found his evidence straightforward and frank. I found him to be a credible witness.
However the weight to be given to his evidence in relation to the second incident is effected by the fact that Constable Muir's back was to him at the time the blows were struck and his vision was obscured to such an extent that he could not see the part of Ms Millers body that was struck or the manner in which the blow was delivered.
Delson Vernon Smith
Mr Smith's evidence was criticised by counsel for the defendant as argumentative, deliberately evasive, desperately indicating matters that may 'shore' up Ms Miller's versions of events, intractable and given from the viewpoint of a person with an inflexible opinion about the meaning of what he saw.
Although I have rejected some aspects of his testimony I do not do so solely as a result of his answers given in a cross examination that was in parts robust and aggressive.
I accept without reservation that a cross‑examiner is entitled to be robust and aggressive to a witness.
However that type of cross‑examination quite often results in a witness 'digging their heels in' and responding to questions by asking questions and providing answers which clearly indicate the witness feels he is being belittled. That does not necessarily establish the witness is untruthful and/or unreliable.
It is a common reaction, unhelpful though it may be to those trying to assess credibility, for a witness who considers he is under attack to respond by becoming belligerent and argumentative.
Insofar as the first incident is concerned Mr Smith said he was looking at the back of Constable Muir and saw her shoulder and arm movements.
Descriptions and demonstrations were given of these movements and much of cross‑examination was focused on that evidence.
Although originally Mr Smith said he saw hand movements, he ultimately agreed he had only seen shoulder and arm movements and effectively concluded from those movements that the hands must have been moving in a particular manner.
His evidence was a mixture of what he saw and the inferences he then drew. It was sometimes difficult to be clearly delineated what he saw from the conclusions he drew.
There were also occasions when Mr Smith appeared to be less than frank with the court. For example he originally agreed that the police had only attended the residence on one prior occasion. Subsequently he conceded they attended on more than one prior occasion.
He was reluctant to concede that Ms Miller was walking towards him even when she was walking directly down the driveway to where he was standing. The only reasonable inference to draw from that reluctance, in my opinion, was that he did not want to tell the court Ms Miller was advancing towards him and thereby providing justification for Constable Muir's actions in intervening.
His reluctance to give evidence of matters that may portray his partner in a poor light in combination with the other matters referred to leads me to conclude that his evidence cannot be relied upon unless supported by other reliable evidence.
Murrel Charmaine Bolton
Ms Bolton is a senior citizen who served as an APLO for approximately 10 1/2 years, although no longer so employed, as she ceased service some 2 1/2 years ago.
She indicated at the commencement of her evidence that due to depression she had a history of not being able to remember dates, days and times. She found giving evidence stressful and required a short adjournment to refresh herself.
She said prior statement made by her in court or to the police would be correct as they were made at a time when the incident was fresher in her mind.
She was a straight forward witness who knew all the other witness.
She knew Mr Smith as he grew up in Narrogin and also knew Ms Miller.
Ms Miller's own evidence was that she felt more comfortable speaking to APLO Bolton than Constable Muir.
APLO Bolton had seen Ms Miller's instructing solicitor and they had provided her with the transcript of proceedings in the Narrogin Magistrates Court in the lead up to this trial.
At the time of the incident she worked with the three constables who attended.
However I consider her evidence needs to be scrutinized with extra care.
I have done so because during evidence‑in‑chief, when describing events occurring shortly before the first incident, she said Ms Miller was being abusive and was restrained by 'Constable Dunjay, perhaps Constable Holtzman and Constable Muir' and then Constable Muir reach over the other two with an outstretched hand, albeit she was not sure if that right outstretched hand connected.
However in cross‑examination she retreated from this position by saying that Ms Miller may not have been restrained, but Constable Dunjay and Constable Holtzman where near her.
Further at one stage in her evidence APLO Bolton could not recall whether Ms Miller was moving towards Mr Smith, however she later agreed that both her evidence at the Narrogin Courthouse in March 2008 and the contents of her 2007 police statement were true and that what occurred in the first incident was that Ms Miller rushed towards Mr Smith, Constable Muir put her hands in front of her body to intervene, Ms Miller said 'you shouldn't have done that' and then punched Constable Muir several times.
Although her police statement and evidence of March 2008, both if which she adopted at this trial, are slightly different in that in the former she refers to a punch and the latter refers to several punches I do not consider those differences to be material.
Clearly there is a significant difference between Ms Bolton's evidence‑in‑chief and the position she ultimately adopted after cross‑examination.
This has caused me to scrutinize her evidence with care, however having done so I am satisfied the position she ultimately arrived at after cross‑examination as to what occurred in the first incident (and other incidents) can be relied upon.
I accept her as a witness of the truth and where her evidence about any of the incidents conflicts with other witnesses' evidence I prefer her evidence. She appeared to have no axe to grind with any party and, I find, was simply telling it as she recalled it.
Celeste Marie Muir
It was suggested by counsel for the plaintiff that Constable Muir's credibility was affected by the pleadings as her defence and counterclaim filed on 27 October 2010 consisted of a denial of any assault on Ms Miller, a position maintained until the amended defence and counterclaim were filed on the morning of the trial and inconsistent with her evidence.
I do not draw such an inference. Constable Muir said she had a conversation with her then lawyer prior to the defence and counterclaim of 27 October 2010 being filed however she was not asked if she had seen or approved of the pleadings.
As a police officer Constable Muir obviously has the benefit of training and experience and is familiar with the legal process and there is a need to guard against artificially enhancing her credibility as a result of those factors alone.
This is illustrated by the fact that whilst I find that her injuries were no more severe than those suffered by Ms Miller; Constable Muir was more articulate in describing the effects of them.
There were, however, several unsatisfactory aspects of her evidence.
Constable Muir was not prepared to accept she made a mistake in assaulting Ms Miller and maintained she had nothing to be sorry for, although she accepted she would not do the same thing again.
She would not accept her conduct was completely outside the scope of her duty and stated she acted within the high standards of a WA police officer
She swore under oath in 2008 in the Magistrates Court that she:
I approached him [Constable Dunjay] to assist in taking her into … the police vehicle, and in doing so, punched her once to the back of the head with my left fist. I then tried to forcibly restrain her and place her in the police vehicle. She broke free of our grip, turned around and grabbed me by the hair again. She punched me another four or five times to the head and I ended up on the ground again (exhibit 2).
That account is completely different to her evidence in this trial whereby she now says she was not assisting Constable Dunjay in his duties, but was provoked into the assault, and now says that as soon as she delivered one punch to Ms Miller she was immediately assaulted by her, and makes no reference to trying to restrain or grip Ms Miller or the latter braking free of her grip.
Constable Muir said in evidence that when challenged by Mr Smith immediately after the third incident she replied 'I didn't do anything'. She now accepts she did do something.
When asked why she replied in those terms she claimed she had not done anything to provoke what occurred (ts 199). Clearly this is not correct as she now admits she had just assaulted Ms Miller but says she was provoked.
The quantum changes in the evidence given by her in two separate court hearings and her attempts to justify her conduct lead me to conclude that her denial at the time of the incident that she did 'anything' and her evidence at this trial are designed to enable her to avoid the unpleasant consequences of her actions and accordingly I do not rely upon her evidence unless supported by other reliable evidence.
Findings in relation to each incident
The first incident
Ms Miller admitted that she threw coins at Mr Smith intending them to hit him. She did this because she was angry and upset. Regrettably the coins hit one of their daughters.
Simultaneously, she threatened Mr Smith by saying words to the effect of 'I'm going to kill you, you dog cunt' and 'you're going to get smashed you black dog'. Whilst Mr Smith could not recall that abuse and Ms Miller gave no evidence of such abuse, I accept the evidence of Constable Holtzman and APLO Bolton in this regard. Constable Muir also referred to verbal abuse without providing specific details.
Contemporaneously with the coin throwing Ms Miller moved toward Mr Smith. I accept the evidence of Constable Holtzman, APLO Bolton and Constable Muir in this regard.
I accept the evidence of Constable Holtzman and Constable Muir that they each apprehended that Ms Miller was about to attack Mr Smith. This was a reasonable apprehension considering Ms Miller's earlier conduct, her close physical proximately to Mr Smith and her movements towards him.
I accept the evidence of Constable Holtzman, APLO Bolton and Constable Muir that Constable Muir stepped between Ms Miller and Mr Smith with outstretched hands in front of her in an effort to stop Ms Miller from advancing further towards Mr Smith. I reject the account given by Ms Miller and Ms Smith as being against the preponderance of the evidence. The acts of Constable Muir were entirely justified.
I accept the evidence of Constable Holtzman, APLO Bolton and Constable Muir, that Ms Miller then commenced to assault Constable Muir.
I accept the evidence of Constable Holtzman and Constable Muir that Ms Miller knocked Constable Muir's arms out of the way, grabbed a chuck of her hair, pulled her head forward and downwards and delivered five to six punches to her face resulting ultimately in both of them falling to the ground. This is not inconsistent with APLO Bolton evidence that she saw Ms Miller punch several times, being the later part of the incident, but not the earlier hair grabbing.
I reject Ms Miller evidence that Constable Muir attacked her and that she only punched Constable Muir in self defence. Ms Miller's evidence in this regard is entirely unsupported. No other witness saw any punches delivered by Constable Muir in the first incident.
Mr Smith's evidence of Constable Muir's shoulder and arm movements is equivocal. I am not persuaded he saw Constable Muir punching Ms Miller and in that regard I reject his evidence, it being contrary to the evidence of Constable Holtzman, APLO Bolton and Constable Muir.
Mr Marshall submitted that APLO Bolton's evidence that Ms Miller said 'you shouldn't have done that' during the first incident, supported the latter version of events. I accept APLO Bolton's evidence that those words were said, however in light of Ms Miller's angry state of mind at the time and propensity to justify her own actions by blaming others, that remark is entirely consistent with her anger at Constable Muir for stopping her advancing towards Mr Smith after she had thrown coins at him. I do not accept that the remark supports Ms Miller's version of the first incident.
Constable Muir has established that Ms Miller assaulted her during the first incident by grabbing her hair, pushing her head downward and punching her head five of six times and I reject the contention that Ms Miller carried out that assault in self defence.
The second incident
I find that having been assaulted by Ms Miller, Constable Muir was dazed and shocked and was helped to her feet by Constable Holtzman. I accept Constable Holtzman and Muir's evidence in this regard.
I find that having focused for a matter of seconds and ascertained the whereabouts of Ms Miller, who was that time between 3 m (Constable Muir) to 5 m to 10 m (APLO Bolton, ts 153) away, she rushed over to Ms Miller. I accept APLO Bolton's evidence in this regard which is supported by Constable Holtzman and Mr Smith. Even Constable Muir said she 'quickened her pace'.
I find that Constable Muir then struck Ms Miller two blows to the back of her head with her elbow .At that time Ms Miller was with Constable Dunjay near the police vehicle and had her back to Constable Muir.
I accept the evidence of APLO Bolton, supported by Ms Miller, that two blows were struck. Constable Holtzman and Mr Smith only saw one blow. Constable Holtzman view of the type of blow and where it landed was obscured and he may not have seen the second blow for that reason. Mr Smith view may also have been obscured. I reject the testimony of Constable Muir that she struck only one blow.
I accept the evidence of APLO Bolton and Mr Smith that Constable Muir struck Ms Miller with her elbow. Ms Miller did not see the blows and her evidence that it felt like she was struck with an elbow rather than a fist, is given little weight. Constable Holtzman was unable to say the type of blow. I reject Constable Muir's evidence that she struck with her fist.
I find the two blows were delivered in quick succession and caused Ms Miller head to move forward; however I am not satisfied her head struck the police vehicle on either occasion. Ms Miller is the only witness who said this occurred. Constable Holtzman and Constable Muir said it did not. Neither APLO Bolton nor Mr Smith saw Ms Miller's head striking the police vehicle.
Ms Miller's evidence that her face was 'puffed up' is unsupported by any other reliable evidence and not accepted by me. Mr Smith's evidence that he saw a discolouration on her face the next day is not accepted by me as he made no mention of seeing Ms Miller the next day in his police statement, which was made closer to the events occurring, and he said in that statement that when he saw her a few days later he did not notice any injuries. In light of those inconsistent statements I do not accept his evidence that he saw a discolouration or mark on her face.
Ms Miller has established that she was assaulted by Constable Muir during the second incident by being struck with an elbow twice to the back of the head however I am not satisfied her head struck the vehicle bonnet on either occasion.
Constable Muir says her assault was bought about by Ms Miller's provocation and I turn now to consider the question of provocation as a defence to a civil claim for assault.
Provocation as a defence to a civil claim for assault.
Constable Muir's amended pleadings allege provocation as defined in s 246 of the Criminal Code provides a defence to the claim.
In Australia, at common law, provocation has never been a defence to a civil claim of assault: Hancock v Beard (Unreported, WASC, Full Court 171 of 1995, Library No 960675, delivered 27 November 1996).
Section 5 of the Criminal Code Act Compilation Act 1913 provides that no civil action can be brought in respect of any act declared to be lawful by the Criminal Code.
West Australian Newspapers Ltd v Bridge (1979) 23 ALR 257; (1979) 53 ALJR 465 is authority for the proposition that a provision of the Criminal Code declaring there is a 'lawful excuse', or a person is 'not criminally responsible', for conduct is not a declaration that the act is lawful. That requires the use of the words 'it is lawful'.
Section 246 of the Criminal Code refers to a person not being criminally responsible for an assault by virtue of provocation and therefore the section has no application to a civil claim
In Wenn v Evans (1985) 2 SR(WA) 263, a decision of a single judge of this court and not the Full Court as stated in the defendant's written closing submissions, Judge Heenan, as he then was, in obiter remarks thought s 246 provided a defence to a civil action for assault, referring to Gibbs J's dissenting observations in West Australian Newspapers v Bridge.
In Hancock v Beard, a Full Court decision, Parker J, with whom Franklin J and Wallwork J agreed, disagreed with that view and observed that s 246 did not attract the operation of s 5 of the Criminal Code Act Compilation Act 1913.
West Australian Newspapers v Bridge and Hancock v Beard are authority for the view that s 246 of the Criminal Code does not providing a defence to a civil action. The Queensland authorities to the contrary have never been followed in this state.
Provocation, either at common law or under the Code, does not provide a defence to a civil claim for assault.
However in view of the fact that Constable Muir's case was almost entirely based on provocation I make some brief comments on that proposition.
The concept of provocation and self defence are well known in criminal law and should be given the same meaning in civil law.
Provocation under the Criminal Code and common law are broadly similar and reflected a degree of underlying notions: Pollock v The Queen [2010] HCA 35.
Provocation requires, inter alia, a wrongful act or insult from the victim (provocative conduct) and the gravity of that provocation must be such that it could deprive an ordinary person of their power of self‑control and cause an ordinary person to act in a manner encompassing the defendant's actions (ordinary person test) and the defendant must carried out the assault whilst in the state of temporary loss of self‑control (subjective test).
Provocation can be constituted by the cumulative effect of wrongful acts and insults with the last act or insult being the straw that breaks the camels back and causes both the loss of self control and the defendant to do what she did.
An insult is not required to be a wrongful insult and can be constituted by words alone or by words, signs, acts or other gestures or a combination.
I accept Ms Miller's assault upon Constable Muir in the first incident was a wrongful act. However it is the remark 'what for?' in response to Constable Muir's statement 'you are under arrest', and the manner in which it was made, that is relied upon as the insult and as having 'tipped Constable Muir over the edge' (ts 216).
Prior to that remark Constable Muir does not assert she had lost control. She could not make such an assertion because, on her own evidence, she had assessed the situation, moved towards Ms Miller and had sufficient control to advice her she was under arrest.
Even though I have my doubts that such an enquiry, even in the manner and circumstances that it was allegedly made, could constitute an insult, taking the case for Constable Muir at its highest, and accepting that it could and accepting that Constable Muir was in a state of temporary loss of self‑control as a result of the cumulative effect of the wrongful act and insult and that caused her to assault Ms Miller in the way she did the provocation plea would fail on the 'ordinary person' test. That test also encompasses issues such as the proportionality of the force, whether there has been time for loss of control to abate, and whether the loss of control was sudden, all of which need not be considered by me.
Constable Muir has failed to satisfy me that the provocative conduct was of such gravity that it could deprive an ordinary person of self control and causes that ordinary person to act in the manner encompassing her actions.
In this regard the gravity of the provocative conduct is assessed by reference to all of Constable Muir's personal features including her race, age, background, occupation and personal circumstances including her police training.
The powers of self control required is assessed as those of an ordinary person of the age of Constable Muir with powers of self control within the limits of that possessed by an ordinary person.
I find that assessing the gravity of the provocation by reference to all of Constable Muir's personal characteristics, and bearing in mind that prior to the 'insult' she had not lost self control, the insult even acting cumulatively with the other provocative conduct could not cause an ordinary person, with the powers of self control refereed to above, to lose self control and act in the manner encompassing Constable Muir's actions. It could not tip them over the edge.
At the time of the incident Constable Muir was a young (approximately 22), relatively inexperienced officer (less than two years out of the academy). Regrettably she had been physically assaulted, for the first time in her career. Clearly the situation that occurred was not all of her making. However she reacted badly to that situation and her powers of self control were below the limits of the range of power of self control that must be attributed to the hypothetical ordinary person of her age.
Even if provocation was a defence at common law or via s 5 of the Criminal Code Act Compilation Act Constable Muir has not persuaded me that she was provoked within the legal meaning of that word.
Police Act 1892, s 137
The Police Act 1892 s 137 provides:
(3)An action in tort does not lie against a member of the Police Force for anything that the member has done, without corruption or malice, while performing or purporting to perform the functions of a member of the police force, whether or not under a written or other law.
The effect of this section is that unless Ms Miller satisfies me that Constable Muir's assault was accompanied by malice (it is neither alleged nor pleaded that she acted with corruption) s 137(3) of the Police Act would defeat her claim.
Malice was considered in Noye v Robbins; Noye v Crimmins [2007] WASC 98 [252] ‑ [254] by Justice Heenan and by Justice Le Miere in Ives v The State of Western Australia [2010] WASC 178.
The legal meaning of malice is wider than spite or ill will and encompasses the abuse of power for some improper motive or purpose.
I reject the submission that Constable Muir was so angered that she acted on the spur of the moment without any intent and therefore her actions were without malice.
Constable Muir admitted that part of her reason for striking Ms Miller was that she wanted to cause her pain.
I find that she was motivated by ill‑will or spite, and that having lost her self control she formed the intent to extract some form of revenge upon or punish Ms Miller for the assault that Ms Miller had moments before committed on her. Her desire to inflict pain on Ms Miller falls within the definition of spite or ill‑will and is an improper motive.
I find that Ms Miller has discharged the burden of establishing that Constable Muir acted with malice.
The third incident
Having been struck twice to the back of her head Ms Miller reacted immediately, grabbed the hair of Constable Muir , pulled her head downwards and delivered somewhere between four to six blows to her face region. I accept the evidence of Constable Holtzman, APLO Bolton and Constable Muir in this regard. Constable Holtzman refers to repeated blows and Ms Miller taking hold of Constable Muir's hair. This provides independent support for Constable Muir's evidence. APLO Bolton also refers to Constable Muir being punched after her hair was pulled.
I reject Ms Miller's evidence that she grabbed Constable Muir's hair but did not punch her. It is against the preponderance of evidence. Mr Smith's evidence that he saw Ms Miller grab Constable Muir's hair and within seconds intervened and helped disentangle the fingers from Constable Muir's hair, insofar as implies that there were no punches delivered by Ms Miller, is rejected for similar reasons.
However I am satisfied Ms Miller's actions were taken in self defence. She said she acted in self defence. That was the real issue at the trial notwithstanding the pleadings state that she acted 'in order to prevent further unlawful assault from the defendant'.
Ms Miller acted immediately after having been struck twice with an elbow to the back of her head. The force used was strong enough to cause her head to move forward. Her back was to her assailant and her arms were down by her side and she was standing in close proximity to Constable Dunjay.
The question at common law in relation to self defence is whether it was reasonable for Ms Miller to defend herself and whether the force used was reasonable: Zecevic v Director of Public Prosecutions (DPP) (Vic) (1987) 162 CLR 645, 661. The Criminal Code provisions alluded to by her counsel are not materially different.
Ms Miller could not be expected to ascertain exactly how long the assault upon her was to last and in a split second had to determine how best to make her response.
The evidence establishes that as soon as others intervened Ms Miller and Constable Muir were separated. Ms Miller did not resisted or hindered that process or attempted to further assault Constable Muir.
I am satisfied her response was necessary and the force used including the number, type and force of the blows was a reasonable response to the attack upon her and there were reasonable grounds for her beliefs that it was necessary for her to do what she did in self defence and that she did not use excessive force.
Therefore whilst Constable Muir has satisfied me that Ms Miller assaulted her during the third incident by grabbing her hair and delivering between four to six punches to her face, Ms Miller has satisfied me that those actions were taken in self defence.
Damages
Any intentional trespass to the person constituting by an assault (battery) is actionable per se, as the law jealously protects the sanctity of a person's own body and any assault (battery) is considered to be of sufficient importance to warrant an award of damages irrespective of whether injury or loss is caused.
Accordingly damages for injury to feelings, humiliation and the like, inherent in any assault, and to recognise the violation of the body may be given without prove of any other damage and without them being classified as aggravated damages: McGregor on Damages, 17th ed, 37.001.
Any actual damage by way of personal injury is of course also compensable.
The injuries suffered by Constable Muir in the First Incident and her claim for damages.
Shortly after the incidents concluded Constable Muir said she was in pain and upset and reduced to tears .She described her head pain as approximately seven on the 'pain scale'.
As a result of both assaults she attended the Narrogin Hospital, as instructed by her sergeant, where she remained for less than an hour.
The hospital notes indicate swelling and tenderness to the left side of her face (left eye and left temple) (exhibit 5). She received medication (Panadeine Forte) which she took that night for her headache.
In the short term her head throbbed, her face was bruised and swollen, she suffered from a headache and some hair loss and had difficulties sleeping. She was absent from work for one day and when she went shopping was embarrassed because people were looking at her swollen face. Bruising to her eye appeared about two days later.
Photographs of her injuries were taken the night of the incident (exhibit 3) and two days later (exhibit 4). The close‑up photos show a slight swelling and bruise to her left eye.
Constable Muir said she was affected by the incidents for a long time and experienced difficulties at work as she had doubts about her ability and was nervous when she performed duties at night or attended jobs without backup. She said she now lets male officers take the lead role at domestic disturbances and for a period of time whenever she recalled the incident or talked about it would often burst into tears. The effect of the incident on her work practices have not resulted in any loss of income and are relatively minor.
Her injuries fall towards the lower end of the scale. She suffered short term swelling, pain and discomfort but no ongoing disability and took medication on one occasion only.
Constable Muir is entitled to recover damages for the injuries she sustained in the first incident. She is not entitled to damages for any injuries arising in the third incident. The mode of assault and number of blows and areas of the body grabbed or struck in both the first and third incidents were almost identical.
The compensable and non‑compensable injuries were occasioned within a very short span of time. Disentangling the impact of the two incidents can be a difficult task: Government Insurance Office of NSW v Aboushadi [1999] NSWCA 396 [21].
In JLW v DRH [2004] WADC 214 and LMC (by her next friend The Public Trustee in and for the State of Western Australia) v RJO [2002] WADC 147 [53] the damages that would have been awarded in respect of the overall injuries was determined and then an apportionment made between the compensable and non compensable incidents contribution to the overall condition. To do otherwise would result in Constable Muir receiving damages for injuries sustained when Ms Miller was acting in self defence.
I find the compensable first incident contributed 50% of the total injuries sustained and assess damages on that basis. After adjustments for that apportionment I award Constable Muir $6,000 for the assault upon her in the first incident. I have taken into account in arriving at that figure the injury to her feelings, and the humiliation inherent in this, as in any, assault.
The injuries suffered by Ms Miller in the second incident and the claim for aggravated damages
As a result of the assaults upon her during the second incident Ms Miller said she received two lumps to the back of the head, which were noticeable but not huge or sticking out, a puffed up face and numbness to the face which lasted a few hours.
She said she suffered from a headache that night and the next morning and from soreness to the back of the head which remained for about a week.
She did not visit a doctor although she took some Panadol medication.
I am not satisfied that she sustained any injury to her face as a result of a compensable assault carried out upon her by Constable Muir.
I have reject Ms Miller's evidence that she was punched in the face region during the first incident and that her head hit the bonnet during the second incident. She was the only witness who gave direct evidence about those two events. Additionally Ms Miller said in cross‑examination that her face was not puffy when she was at court the next day, although she qualified that answer by later saying it could have been but she did not remember feeling her face.
Although Mr Smith said he saw discolouration on her face the day after the assault I reject that evidence as unreliable as he made no mention of seeing Ms Miller the day after the assault when he made his police statement and said in that statement, which he accepted was true, that when he saw her a few days later he did not notice any injuries.
Her injuries fall towards the lower end of the scale. There was short‑term swelling, soreness and discomfort but no ongoing disability and fortunately she seems to have recovered from the effects of the assault in about a week.
Ms Miller's indorsement of claim sought aggravated damages although they were not pleaded in the statement of claim.
There was no claim in the writ or statement of claim or at trial for exemplary damages. O 20 r 9 Rules of the Supreme Court 1971.
Aggravated damages are compensatory in nature and awarded to compensate a plaintiff where the harm done by the wrongful act was aggravated by the manner in which the act was done: Lamb v Cotogno (1987) 164 CLR 1, Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, New South Wales v Ibbett (2006) 229 CLR 639, Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118, 149 and are not to punish the defendant Walker v Hamm (No 2) [2009] VSC 290 although some cases suggest it is accepted that there is an element of punishment in aggravated damages: Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 [1316].
To award aggravated damages there must be conduct which increased the victim's suffering: Luntz, Assessment of Damages for personal injury and Death, 4th ed, 1.7.10 and the plaintiff must prove that injury was done to her feelings at the defendants hands: Walker v Hamm (No 2) [36].
If aggravated damages are awarded they should be no more than is appropriate to bring compensatory damages towards the high end of the available range of compensatory damages: New South Wales v Riley (2003) 57 NSWLR 496, State of New South Wales v Koumdjiev (2005) 155 A Crim R 186.
In Fontin v Katapodis (1962) 108 CLR 177 the High Court ruled that exemplary damages, which by their nature are punitive, could be reduced by provocation but compensatory damages could not be so reduced.
The interesting question of whether the punitive element of aggravated damages can be reduced by provocation need not be decided as, for reasons previously given, Constable Muir has failed to satisfy me that she was provoked into her assault.
Whilst Constable Muir actions were deliberate and unjustified and were committed in the presence of Ms Miller's partner, a friend and at least one of her children I am not satisfied there has been any increase in Ms Miller's suffering because of the manner in which the assault was carried out. Ms Miller's only evidence in this regard was that she taught her children to respect the police and was angry that someone in uniform could behave that way (ts 26).
Further, all the circumstances of the case must be considered. Those circumstances reveal that shortly before she assaulted Ms Miller, Constable Muir was assaulted by Ms Miller. Immediately after assaulting Ms Miller, Constable Muir was again assaulted by Ms Miller who I have found was acting in self-defence.
I accept that 'contributory negligence' does not reduce damages, and I have found that Constable Muir was not provoked, however Ms Miller's conduct in assaulting Constable Muir in the first and third incident are relevant when considering aggravated damages: Law v Wright [1935] SASR 20, Pearce v Hallet [1969] SASR 423.
I am not satisfied it is appropriate to award aggravated damage.
I consider that the appropriate award for general damages for the assault upon Ms Miller in the second incident is $6,000. I have taken into account in arriving at that figure the injury to Ms Miller's feelings, and the humiliation inherent in this, as in any, assault.
Constable Muir claim for damages as a result of third Incident
Constable Muir has satisfied me that she was assaulted by Ms Miller during the third incident however Ms Miller has satisfied me that she was acting in self‑defence and accordingly Constable Muir's counterclaim for damages arising from the third incident is dismissed.
Orders
I find Ms Miller did assault Constable Muir during the first incident and award Constable Muir $6,000 damages for that assault.
I find Constable Muir did assault Ms Miller during the second incident and award Ms Miller $6,000 damages for that assault.
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: MILLER -v- MUIR [2013] WADC 6 (S)
CORAM: BOWDEN DCJ
HEARD: 11-13 DECEMBER 2012
DELIVERED : 21 JANUARY 2013
SUPPLEMENTARY
DECISION :19 FEBRUARY 2013
FILE NO/S: CIV 2529 of 2010
BETWEEN: HELEN FRANCIS MILLER
Plaintiff
AND
CELESTE MARIE MUIR
Defendant
Catchwords:
Costs - Plaintiff successful in its claim - Defendant successful on part of its counterclaim
Legislation:
District Court of Western Australia Act 1969
District Court Rules 2005
Magistrates Court (Civil Proceedings) Act 2004
Rules of the Supreme Court 1971
Supreme Court Act 1935
Result:
Each party ordered to pay their own costs
Representation:
Counsel:
Plaintiff: Mr I L K Marshall
Defendant: Ms K A Vernon
Solicitors:
Plaintiff: Aboriginal Legal Service
Defendant: Lyn Zinenko Lawyers
Case(s) referred to in judgment(s):
Broadway Pty Ltd Trading as Trustee for The Criddle Family Trust v Lewis [2012] WASC 373 (S)
Godden v Alford [1960] WAR 235
Permanent Building Society v Wheeler [No 2] (1993) 10 WAR 569
BOWDEN DCJ: In this case the issues between the parties were 'interlocked'. The whole case revolved around one incident, that is, what occurred when Constable Muir and other police officers attended the plaintiff's residence in response to a domestic disturbance, albeit there were several phases to that incident.
The plaintiff was successful in its claim against the defendant for the tort of battery arising out of the second incident and recovered $6,000.
The defendant was successful in its claim against the plaintiff for a battery arising out of the first incident and recovered $6,000.
The defendant was not successful in its claim for battery arising out of the third incident as I found the plaintiff was acting in self‑defence.
The plaintiff's submissions
The plaintiff says she was successful in her claim (the second incident) and should have her costs on that basis. They point out the defendant ran a defence (provocation) that as a matter of law could not succeed and that increased her costs.
She says, as far as the defendant's costs are concerned, the defendant succeeded only in relation to the first incident and failed in relation to the third incident.
The plaintiff says it would be wrong to order each party to pay their own costs as she established the defendant acted unlawfully and with malice. I reject this submission; the purpose of a cost order is to compensate a party for the costs incurred and not, in normal circumstances, to punish the losing party. Any issues relating to a party's malicious conduct in committing the tort are addressed, where appropriate, by an award of aggravated or exemplary damages.
The plaintiff says the appropriate order is for the defendant to pay her taxed costs or, at the very least, two‑thirds of them
The defendant's submissions
The defendant says that each party successfully obtained damages for the tort of battery and was awarded the same damages for the same cause of action.
They say the plaintiff commenced the action which prompted the counterclaim and if it had not commenced the action there would be no counterclaim and say this provides an appropriate basis to award costs in the defendant's favour.
However, they say the court should adopt a pragmatic approach and do substantial justice between the parties by making no order as to costs or, alternatively, award each party their taxed costs.
If taking the latter approach they say the plaintiff's cost should be on the Magistrates Court scale as that court had jurisdiction to hear the claim pursuant to the Magistrates Court (Civil Proceedings) Act 2004 (WA) and there were no important principles of law or complexity of facts sufficient to justify the action being bought in this court: O 66 r 17(1) Rules of the Supreme Court 1971 (RSC).
However the defendant says their costs should be taxed in the usual way because O 66 r 17 is limited to a plaintiff who issues an action in the wrong court.
I do not accept the submission that O 66 r 17 applies. The rule provides that 'if an action is brought in the Supreme Court …' certain consequences follow. Rule 6 of the District Court Rules 2005 say the RSC apply in respect of any case in the District Court and state that a reference in the RSC to 'the court' is a reference to the District Court, unless the context requires otherwise. Because the specific reference in O 66 r 17 is to 'the Supreme Court' and not 'the court' the context requires that rule to be confined to matters in the Supreme Court.
I also note the defendant made no application to remit this matter to the Magistrates Court pursuant to s 74 of the District Court of Western Australia Act 1969.
General principles
The court's discretion under s 37 of the Supreme Court Act 1935 (WA) and O 66 of the RSC is broad but, absent other considerations, a court will usually order the successful party recover his or her costs: Broadway Pty Ltd Trading as Trustee for The Criddle Family Trust v Lewis [2012] WASC 373 (S) Jenkins J [5].
However, the overriding consideration must be to do justice to the parties in the circumstances of this case.
The court always looks at the realities of the case and attempts to do substantial justice: Permanent Building Society v Wheeler[No 2] (1993) 10 WAR 569.
When all causes of action arise out of one course of dealings or the one transaction or the same facts there will usually be one order for general costs of the action moulded as necessary to ensure that however rough and ready it may be substantial justice is done: Godden v Alford [1960] WAR 235; Permanent Building Society v Wheeler [No 2] (574 ‑ 575).
At the end of the day the plaintiff was successful in her cause of action arising out of the second incident.
The defendant was successful insofar as the first incident is concerned but was not successful in relation to the third incident. The third incident occurred so contemporaneously with the second incident that very little time was separately devoted to it.
Each party says the other party was not successful on some of the issues they raised at the trial, however at the end of the day it is not a question of isolating each allegation and counter‑allegation made but looking at the case in its entire context. The defendant raised the defence of provocation, by an amendment on the morning of the trial, which was not available and the plaintiff unsuccessfully claimed aggravated damages, however neither issue unduly prolonged the trial.
As the facts were so interlocked and the plaintiff was successful in its claim and the defendant substantially successful in its claim, I consider justice is achieved by ordering each party pay its own costs.
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