Plos v Mroz (No 2) - [2015] SADC 148

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
PLOS v MROZ (No 2)
[2015] SADC 148
Judgment of His Honour Judge Tilmouth
4 November 2015
TORTS - TRESPASS - TRESPASS TO THE PERSON - ACTION FOR DAMAGES
Action by the plaintiff for damages for assault and battery upheld on the basis of the objective facts. Damages of $25,000 allowed.
Magistrates Court Act 1991 (SA) s 35; Mule v The Queen (2005) 79 ALJR 1573; Magistrates Court Act (Civil) Rules 2015 (SA) r 124; Plos v Mroz [2015] SADC 87, referred to.
Harradine v The District Court of South Australia (2012) 280 LSJS 520; Briginshaw v Briginshaw (1938) 60 CLR 336, applied.

PLOS v MROZ (No 2)
[2015] SADC 148
A re-hearing

This matter returns to court for re-hearing following a successful appeal by Mr Plos against a judgment entered in favour of the respondent Mr Mroz of $25,000 by a Magistrate sitting in the small claims jurisdiction of the Adelaide Magistrates Court.[1]
[1] Plos v Mroz [2015] SADC 87.
The appeal was allowed for essentially procedural reasons detailed in the primary judgment and summarised at para [53] thereof.[2]
[2] Ibid at [40]-[50], [53].
The primary cause of action
The underlying proceedings were issued by Mr Mroz claiming damages from an assault allegedly committed by Mr Plos in the mid-evening of Friday 10 September 2010. Mr Mroz was the tenant of Unit 1 in a block of units owned by Mr Plos in Carlton Road, Camden Park. There was a demonstrable history of difficulty between them in the landlord and tenant relationship, including allegations of harassment on both sides. There were several contested disputes between them in the Residential Tenancies Tribunal and Mr Mroz in fact was given notice of the termination of his lease.
The Magistrate found both men to be unsatisfactory witnesses, as I do for similar reasons expressed by his Honour.[3] Therefore as it is not possible to resolve the conflicting allegations and counter-allegations on the basis of credit, the court is driven to the objective evidence and proven facts and the inferences that arise thereon in order to ascertain the facts.
[3] Mroz v Plos AMCCI-13-3982, [16]-[19].
As the appeal was allowed, the position reverts to a hearing de novo ‘as an adversarial contest between the parties, ... neither bound by the rules of evidence, nor technicalities and legal forms’.[4] The rehearing was conducted in the manner outlined by Blue J in Harradine v The District Court of South Australia,[5] in that both parties gave sworn evidence, affirmed the truth of the evidence they gave before the Magistrate and what they had told me during the course of the appeal. I then questioned them in relation to the matters I considered unresolved by the Magistrate at first instance. They were permitted to cross-examine each other. In addition, Mr Plos called his partner, Ms Schlangen. She resided in Unit 3, and with whom he would stay when visiting Adelaide. His principal place of residence is on the West coast of South Australia.
[4] Magistrates Court Act 1991 (SA) s 35.
[5] (2012) 280 LSJS 520, [53].
The underlying facts
On the evening in question Mr Plos arrived at the premises with Ms Schlangen at sometime after 8.30pm when it was dark. Mr Plos parked his tray top vehicle more or less opposite Unit 1, whereas it was normally housed overnight in a more secure area behind Unit 3. Mr Plos undoubtedly approached and confronted Mr Mroz. For some reason Mr Mroz cannot remember, he took a photograph of Mr Plos and Ms Schlangen exiting the vehicle. It was by taking the photograph that Mr Plos confronted him, considering it to be ‘an act of provocation’ especially after having received an SMS message from Mr Mroz some weeks earlier stating he was ‘not leaving this Unit’.[6] No doubt the photograph was taken because Mr Mroz apprehended some difficulty might arise in light of the troubled past. The photograph plainly shows Mr Plos approaching.
[6] T25.22-.34, 9 October 2015.
There is no doubt that an angry exchange then took place. Mr Mroz claims that Mr Plos produced an iron pole but he did not see it. No pole can be seen in hand in the photograph just referred to. Mr Mroz gave the following evidence before the Magistrate about what happened next:[7]
I did walk towards him ... I’d explained to him on numerous occasions I don’t want to speak to him ... go away ... I got an iron bar ... put on my chest which I sort of tried to push away with on hand ... and the next thing bang ... just as I was turning ... out of the corner of my eye ... I turned to my left ... when I copped the punch full on in the mouth.
[7] T46.19-48.3, 14 July 2014.
He immediately telephoned the police who attended shortly afterwards, Mr Plos having decamped by then. In a statement given by him to the police at 8.55pm that evening he claimed Mr Plos ‘punched me in the mouth with his right closed fist’.[8]
[8] Exhibit P11, Magistrates Court.
In an interview with the police given in January the following year, Mr Plos admitted going to the premises that evening. He claimed Mr Mroz came at him with an iron bar retrieved from bush in front of his Unit, swung it at him and ripping his jumper, following which he grabbed the pole and pushed Mr Mroz who ‘fell to the floor’.[9] The statement given to police then proceeds, ‘he states that he was not sure but he could have hit Mroz with his hands in the face when he pushed him away, but it was not his intention’. He had retained and produced the bar to the police at this time, and it can clearly be seen in the video of the interview.
[9] Exhibit P12.
It is unclear why it took the police so long to contact Mr Plos, since they attended within minutes of the events. Mr Plos’ residential address was listed on his driver’s licence at the Carlton Road, Camden Park address. There is no convincing evidence that either he or Ms Schlangen deliberately made themselves scarce or that she was reluctant to be interviewed by police.
In his evidence before the Magistrate Mr Plos claimed:[10]
... he said to me “I have had enough of you Plossy” and pulled out the iron bar and swung at me ... I don’t know where it came from ... it clipped me on the chest ... it broke the jumper and hit me on the leg ... it fell onto me ... I grabbed the bar ... I pushed the whole lot back ...
[10] T57.5-62.9, 14 July 2014.
On the re-hearing before me, it was the evidence of Mr Plos that following the altercation, Mr Mroz fell to the ground on ‘his butt’ on a lawn area adjacent to the entry of Unit 1. Mr Plos claimed during the course of the hearing before the Magistrate that he saw a vision from his left side where a bar was swung diagonally at him, clipping him on the chest, tearing his jumper and hitting him in the leg and ‘as that occurred it fell onto me’.[11] He went on to explain that he saw the rod falling on him so he grabbed it causing him to push back and for Mr Mroz to ‘fall on his bum on the grass’ and that he left ‘I went for a drive to cool down’.[12] He described going for a drive to the beach, after having first gone to Unit 3 to briefly explain what had happened and leaving the jumper and pole there. The evidence of Ms Schlangen both before the Magistrate and before me confirms that was the case.
[11] T61.2-.7.
[12] T61.33-62.14.
Mr Mroz went to see his GP Dr Anderson the following Monday, 13 September 2010, reporting that he had been ‘hit in the face by his landlord after a verbal disagreement’. An examination according to his report of 24 November 2010, revealed the following:[13]
It was immediately obvious that he had facial injuries and difficulty talking. He told me that he had been hit in the face by his landlord after a verbal disagreement. He had obvious trauma to his mouth and lips. Both lips were very swollen with lacerations and abrasions. Specifically there were separate 2 cm lacerations to the internal aspect of both lips just to the right of the midline. These were deep and gaped. These were clearly related to impact with the adjacent teeth. There was a further laceration to the top lip which was 2 cm in length and was more external crossing the vermillion border. This was also deep and I would have sutured this woud [sic] if I had seen it clser [sic] to the time of injury. There were also abrasions 1 cm by 6 mm to the external aspects of both lips. all of these clearly related to external trauma .. There was obvious trauma to both upper and lower dentitian. 4 lower teeth – the 4 lateral to the lower right canine were clearly loose with bleeding around their gum insertion. The first tooth lateral to the upper Right canine was broken off at gum level and there was trauma with facture to the next tooth lateral to this. There was also bleeding around the gum insertion of these teeth.
Mr Mroz was also obviosly [sic] swollen across the whole area around the mouth adjacent to these wounds and had difficulty talking because of the swelling.
[13] Exhibit P4, Magistrates Court.
In a report of 7 November 2013 the dental surgeon Dr Yuen considered extractions and full upper denture treatment was required, together with a hybrid bridge supported by five implants to the upper jaw and similar extractions to the lower jaw, supported by four implants. His quotation for this remedial work was in the order of an astonishing $50,000. Photographs and x-rays taken by Dr Yuen were admitted before the Magistrate.
In the report of 24 November 2010, Dr Anderson considered the injuries he observed on 13 September:
... were entirely consistent with a very significant blow from a solid rod shaped object to the mouth area and they constitute significant facial injury.
In a subsequent report of 6 January 2014, he gave a somewhat different opinion:[14]
Certainly these injuries were entirely consistent with a very significant blow inflicted with very significant force to the mouth area and they constitute significant facial injury.
[14] Exhibit P5, Magistrates Court.
In his evidence before the Magistrate, Dr Anderson explained that he understood from his original conversation with Mr Mroz that he was struck a blow by an object, but he added that he ‘found it very difficult to talk that day’.[15] He added in response to the question ‘whether I thought the injury was consistent with a fall or not’, that the injury was:[16]
specific to the lips and teeth themselves. If one fell onto a very localised object, like if one had fallen onto a bed post … [or] a flat paver … it would have to have an edge.
[15] T19.14-.17.
[16] T18.21-.22.
This second report appears to have been sought on the basis that Mr Mroz’s version of events was that a punch rather than a rod used to inflict the obvious injuries. Nevertheless Dr Anderson adhered to the view that whatever caused these injuries, ‘it was a very localised blow …’,[17] adding that it was:[18]
caused by a, localised, specific thing. I’m certainly not absolutely saying that a fist or knuckle couldn’t cause that injury, but it would have to be very localised’.
In his evidence before the Magistrate on this topic Dr Yuen considered the injuries were ‘consistent with trauma’.[19]
[17] T19.30-.31.
[18] T19.34-.36.
[19] T6.1-.6.11.
To my mind this objective evidence is decisive of the matter, even according to a Briginshaw onus.[20] In the first place the account given by Mr Plos is an unlikely one simply because it utterly fails to account for how Mr Mroz sustained such significant injuries. A fall to the backside on a grassed area is inherently unlikely to cause injuries of the specific type described by the medical evidence. It is true that Mr Mroz did not remember taking the photograph and adhered to the view that a fist was used, but this is not so surprising as it seems to be at first sight, given the nature of his injuries. There is no self-interest involved in making these claims.
[20] Briginshaw v Briginshaw (1938) 60 CLR 336.
It is simply inescapable that the nature and extent of the injuries are such that they cannot be explained by any version of the events put forward by Mr Plos. It is not feasible that such marked injuries were caused by Mr Mroz simply falling on his backside on a flat surface, or for that matter accidently colliding with the fist of Mr Plos, as he appears to claim. Despite the fact that Mr Mroz’s recollection is that he was struck with a fist, a recollection likely to be compromised by the very nature of the trauma involved, as a first step to the conclusion that something else must have caused these injuries, is inevitable on this evidence.
Given the undoubted involvement of a rod, much like a construction rod as it was described, these known injuries are far more likely than not to have been caused by some kind of instrument like a thin reinforcing rod, so as to have caused such distinctive injuries. This is no doubt precisely why Dr Anderson understood, or reasoned, that ‘a very significant blow from a solid rod shaped object to the mouth’ was involved. He largely adhered to the view that ‘very localised object or specific thing’ caused the injuries. Whilst accepting that a fist or knuckle could conceivably have caused them, Dr Anderson plainly did not favour that view.
Although Mr Plos denied he had such an item as a construction rod in the rear of his utility, his general line of work was consistent with carrying such a rod, and he was at the time undertaking renovations to Unit 2, which was vacant at the time.[21] His self-serving statements to the police carry little weight, since they were not spontaneous and were in fact made a good deal later, after he had much time for reflection: Mule v The Queen.[22]
[21] T33.2-.8, 9 October 2015.
[22] (2005) 79 ALJR 1573, [22]-[23].
On the other hand his version is supported by the evidence of Ms Schlangen to the effect that immediately afterwards he came to her Unit leaving the rod and jumper there and telling her ‘he was attacked by Mr Mroz with a metal bar ...’,[23] which is consistent with her statement given to police on 10 January 2011. Once again this carries little weight since it was first made some five months after the events and more importantly, is a position contradicted by the objective facts as explained above.
[23] T30.29-.33, 9 October 2015.
Conclusion
In the proven circumstances therefore, it is conclusively demonstrated that Mr Plos must have injured Mr Mroz by means of the rod on this evening. This conclusion is one dictated by the precise nature of the injuries and his inability to plausibly explain how they could have been caused otherwise. This conclusion is also consistent with the motive to confront Mr Mroz and the unpleasant nature of their relationship.
Judgment and orders
Accordingly there will be judgment entered in favour of Mr Mroz for the maximum of $25,000, being the jurisdictional limit claimed. There is no reason to embark upon a detailed assessment of damages, because on any view of the injuries an assessment of more than $25,000 damages for personal injuries and special damages was inevitable.
Although there is some suggestion that Mr Mroz was mildly intoxicated and was in fact drinking a glass of wine at the time, there was no claim on account of contributory negligence, or on account of intoxication contributing to this incident within the meaning of s 46 of the Civil Liability Act 1936 (SA). Had there been, such defences were bound to fail on the evidence addressed.
Accordingly judgment will be entered in favour of Mr Mroz in the sum of $25,000. The orders of the Magistrate allowing $500 as a witness fee for Dr Anderson, a $400 witness fee for Dr Yuen, $400 for the cost of the report of Hutt Street photography, and $440 in total for the attendance of Mr Mroz at the trial and various directions hearings, are reinstated. Mr Mroz is also entitled to reimbursement for the costs of providing the attendance of Dr Yuen to give evidence before the Magistrate, in such amount as he can satisfy the Registrar of this Court that he has actually paid for doing so, over and above $400.
An award of pre-judgment of interest by way of a lump sum in respect of the award for damages of $25,000, based on a flat rate of 5 per cent over five years of $6,000, is made: s 35 Magistrates Court Act 1991 (SA), R124 Magistrates Court (Civil) Rules 2013 (SA). There will be no order as to costs of the two hearings on appeal as each party effectively succeeded on one and failed on the other.
Judgment
Judgment is accordingly entered in favour of Mr Mroz against Mr Plos as follows:
1.     $25,000 for general and special damages.
2.     $500 witness fee for Dr Anderson.
3.     $400 witness fee for Dr Yuen.
4.     $400 Hut Street Photography.
5.     $440 witness fee Mr Mroz.
6.     $6,000 interest on the damages awarded.
The total judgment is therefore in the sum of $32,740. In addition thereto, Mr Mroz is entitled to such sum as he can demonstrate to the Registrar he has paid over $400, for the attendance of Dr Yuen before the Magistrate.