Steven Paul Muscat v Nicholas Haider

STEVEN PAUL MUSCAT v NICHOLAS HAIDER
[2014] ACTSC 152 (27 June 2014)

TRESPASS TO THE PERSON – assault and battery – altercation at restaurant in licensed club ­– further altercation in club carpark – decision depending upon particular facts – no issue of principle

DAMAGES – personal injury – injury to shoulder resulting from fall to floor with impact to elbow – tears to tendons within shoulder joint – subsequent successful surgery to repair tendons – no issue of principle

Evidence Act 1995 (Cth), s 128
Court Procedures Rules 2006 (ACT), r 50
Legislation Act 2001 (ACT), s 255(4)

Griffiths v Kerkemeyer (1977) 139 CLR 161

No. SC 499 of 2007

Master Harper
Supreme Court of the ACT

Date: 27 June 2014     

IN THE SUPREME COURT OF THE       )
  )          No. SC 499 of 2007
AUSTRALIAN CAPITAL TERRITORY    )          

BETWEEN:  STEVEN PAUL MUSCAT

Plaintiff           

AND:  NICHOLAS HAIDER

Defendant

ORDER

Judge:  Master Harper
Date:  27 June  2014
Place:  Canberra

THE COURT ORDERS THAT:

1. judgment be entered for the plaintiff in the sum of $106,360.00.

1. judgment be entered for the plaintiff on the counterclaim.

1. the plaintiff’s costs be paid by the defendant.

1. the order as to costs be stayed for fourteen days.

1. The plaintiff claims damages for personal injury arising out of physical altercations with the defendant at the Hellenic Club, Woden, on 26 November 2006. The defendant makes a counterclaim for damages for personal injury.

1. The statement of claim expresses the claim to be in negligence. The particulars of negligence include two incidents of assault. The counter claim is for assault.

The pleadings

1. The plaintiff asserts that on 26 November 2006 at the Hellenic Club, the defendant unlawfully and without permission took hold of him around the neck from behind, forcing his left shoulder backwards. The defendant is said to have choked the plaintiff and pulled him backwards, rendering him unconscious or incapable of standing, with the consequence that he was forced to the floor. It is asserted that about five minutes later, as the plaintiff was leaving the club, the defendant approached him and punched him in the face, knocking him to the ground, and then sat on his chest and punched him repeatedly around the face and head.

1. The defendant initially filed a defence admitting all of those assertions, but asserting that he had been acting in self-defence. I was informed at the commencement of the trial that the admissions had been made in error, and that the paragraphs of the statement of claim setting out the alleged facts were denied. I granted leave to the defendant to file an amended defence.

1. The counterclaim was unchanged. The defendant asserted that that plaintiff had repeatedly hit him in the head at the club, and had later in the club carpark grabbed him by the throat, dragged him to the ground and choked him.

The plaintiff’s case

1. Counsel for the plaintiff opened his client’s case with the following narrative. On 26 November 2006, the Yianoulakis family held a dinner at the…