Court allows assault claim against soldier for intentional finger injury, rejecting provocation defense for damages.

[*1082] 1972 January 31

(STYLIANIDES, AG. P.D.C.)

IN THE DISTRICT COURT OF LIMASSOL

Ali Rasid,

Plaintiff,

v.

David Braybrook,

Defendant.

(Action No, 535/71).

Civil Wrongs - Trespass to the person - Assault - Intention or negligence - When does a cause of action for assault exist - Section 26 of the Civil Wrongs Law Cap. 148 - Defendant forcibly shutting door of vehicle, trapping plaintiff's fingers therein, driving vehicle away and dragging plaintiff at a distance of 500 feet - Act done intentionally - Defendant guilty of assault - Moreover even if defendant were found not to have acted intentionally he is guilty of negligence - In that he acted in "reckless disregard for the safety" of plaintiff.

Damages - Trespass to the person - Assault - Mitigation - Provocation - Conduct of person assaulted provoking assault - May reduce the exemplary or rather aggravated element in damages but not the compensatory element.

Assault - See under "Civil Wrongs"; "Damages".

G. Talianos, for the Plaintiff.

S. McBride, for the Defendant.

JUDGMENT

The following judgment was delivered by:-

STYLIANIDES, AG. P.D.C.: The plaintiff by this Action [*1083] claims special and general damages for assault and, in the alternative, for negligence.

The Defendant counterclaimed for damages for trespass, or enticement and an injunction restraining the Plaintiff from molesting and/or kissing, and/or attempting to entice away the Defendant's wife. When the case was mentioned to the Court, the Counterclaim was withdrawn and dismissed.

Five witnesses, including the Plaintiff, gave evidence for the Plaintiff. The Defendant neither appeared in Court nor did he adduce any evidence.

P.W.1 is the Plaintiff, P.W.2 is a Police Officer, P.W.3 is a Doctor, P.W.4 is the Manager of Jason’s bar and P.W.5 is a student who, at the material time, was an employee of P.W.4.

I may say from the outset that P.W.4, Jason Christodoulides, the Bar Manager, did not impress me at all. His demeanour in the witness box left much to be desired. His evidence is contradicted by the evidence of P.W.5, Aristos Milona, a student. This Ear Manager was, at the time of the incident, repairing the door of his bar and had no opportunity to and in fact did not witness how the incident occurred. Probably he took notice of it at a later stage, when it was over.

The Plaintiff, a Turkish Cypriot aged 27, a builder by profession, was on friendly relations with the Defendant, a married British soldier. About two days [*1084] prior to the 9/1/71 the Defendant caught the Plaintiff in the act of kissing the Defendant’s wife. The Defendant was offended and he made it clear there and then to the Plaintiff that he wanted nothing further to do with him. The Plaintiff later tried, unsuccessfully, to explain to the Defendant. The Defendant was so angry that he sent the Plaintiff away, repeating that he wanted nothing more to do with him.

On the night of 9/1/71, whilst the Plaintiff with other Turks were standing on the pavement outside Jason’s Bar, on the corner of Makariou III Avenue and Polemidhia Road, the Defendant drove a self drive hired car and stopped outside the bar very close to the pavement. He alighted, had a quick look inside the bar and returned to his car. He seated himself at the driver's seat, hut before he closed the door of his vehicle, the Plaintiff proceeded towards the

vehicle and actually stood between the open door and the body of the car. He rested his one hand on the body of the car and the other on the open door.

He started to give his own explanation of the "kiss" but the Defendant objected to even hearing the Plaintiff and shouted repeatedly "Go away". The Plaintiff persisted and the Defendant, in an angry mood, pulled the door forcibly, thereby trapping the middle and ring fingers of the Plaintiff inside the door and drove off against the red traffic lights, at a distance of about 500 feet with the Plaintiff at first running along with the car, with his fingers trapped in the door and later being dragged along. [*1085]

All the way the Plaintiff was knocking on to the window pane with his free hand and shouting to the Defendant to stop. He was exclaiming in agony and pain: "My fingers, my fingers."

The Defendant, after turning round the corner, abruptly stopped, opened the door, released the Plaintiff’s hand and caused the fall of the Plaintiff on to the ground. The Plaintiff sustained injuries and was conveyed to the Limassol Hospital on the same night. His trousers and shoes were damaged, obviously by the forcible rubbing of the heels and tips of the Plaintiff's shoes on the asphalt due to the dragging.

The following questions fall for determination:-

(a) Are the acts of the Defendant tortious? If yes, do they amount to assault or negligence?

(b) If the Defendant is liable for a tortious act, to what amount is the Plaintiff entitled to for loss of earnings and general damages?

Assault is defined in Section 26 of the Civil Wrongs Law, Cap. 148 as follows:-

"(1) Assault consists of intentionally applying force of any kind whether by way of striking, touching, moving, or otherwise, to the person of another, either directly or indirectly, without his consent, or with his consent if the consent is obtained by fraud, or attempting or threatening by any act or gesture to apply such force to the person of another if the person making [*1086] the attempt or threat causes the other to believe upon reasonable grounds that he has the present intention and ability to effect his purpose.

(2) For the purposes of this section, the expression 'applying force' includes applying heats light, electrical force, gas, odour or any other substance or thing whatever if applied in such a degree as to cause damage".

The Civil wrongs Law came into operation in this country on the 1st January, 1933. It was a code neither complete nor exhaustive; it was not intended to be a Procrustean bed, but, to incorporate and codify the Common Law of England. (Vassiliou v. Vassiliou,

16 C.L.R. p. 69; Electricity Authority v. Kipparis, 24 C.L.R. p. 121).

The security of a man's person is the most elementary of civil rights. When actual violence is inflicted, it is a "battery", but if violence is only menaced, it is an "assault". For practical purposes today "assault" is generally synonymous with the term "battery". "Assault" is the term used in our statutes to mean both "assault" and "battery".

In Fagan v. Metropolitan Police Commissioner, (1968)

3 All E.R. p. 442, a criminal case, James, J. (Lord Parker, C.J. agreeing and Bridge, J., dissenting) said at p. 445: - [*1087]

"In our judgments the question arising, which has been argued on general principles, falls to be decided on the facts of the particular case. An assault is any act which intentionally - or possibly recklessly - causes another person to apprehend immediate and unlawful personal violence. Although 'assault' is an independent crime and is to be treated as such for practical purposes today 'assault' is generally synonymous with the term 'battery', and is a term used to mean the actual intended use of unlawful force to another person without his consent. On the facts of the present case, the 'assault' alleged involved a 'battery'. Where an assault involved a battery, it matters not, in our judgment, whether the battery is inflicted directly by the body of the offender or through the medium of some weapon or instrument controlled by the action of the offender. An assault may be committed by the laying of a hand on another, and the action does not cease to be an assault if it is a stick held in the hand and not the hand itself which is laid on the person of the victim. So, for our part, we see no difference in principle between the action of stepping on to a person’s toe and maintaining that position and the action of driving a car on to a person’s foot and [*1088] sitting in the car while its position on the foot is maintained".

At p. 446 he had this to say:-

"On the facts found, the action of the appellant may have been initially unintentional, but the time came when, knowing that the wheel was on the officer's foot, the appellant (i) remained seated in the car so that his body through the medium of the car was in contact with the officer, (ii) switched off the ignition of the car, (iii) maintained the wheel of the car on the foot, and (iv) used words indicating the intention of keeping the wheel in that position. For our part, we cannot regard such conduct as mere omission or inactivity. There was an act constituting a battery which at its inception was not criminal because there was no element of intention, but which became criminal from the moment the intention was formed to produce the apprehension which was flowing from the continuing act. The fallacy of the appellant's argument is that it seeks to equate the facts of this case with such a case as where a motorist has accidentally run over a person and, that action having been completed, fails to assist the victim with the intent that the victim should suffer". [*1089]

In Fowler v. Lanning

(1959) 1 All.E.R. 290, it was held that an action for trespass to the person does not lie if the injury to the plaintiff, although the direct consequence of the act of the defendant, was caused unintentionally and without negligence on the part of the defendant; this principle applies both to trespass to the person committed on the highway and to trespass to the person committed in any other place.

In Letang v. Cooper

(1964) 2 All E.R. 929, the plaintiff was staying in a hotel and was sunbathing on a piece of grass where cars were parked. While she was lying there, Mr. Cooper, the defendant, came into the car park driving his motor car. He did not see her. The car went over her legs and she was injured.

Lord Denning, M.R. , at p. 932 said:-

"If one man intentionally applies force directly to another, the plaintiff has a cause of action in assault and battery, or, if you so please to describe it, in trespass to the person. 'The least touching of another in anger is a battery'. If he does not inflict injury intentionally, but only unintentionally, the plaintiff has no cause of action today in trespass. His only cause of action is in negligence, and then only on proof of want of reasonable care. If the plaintiff cannot prove want of reasonable care, he may have no cause of action at all". [*1090]

And, further down: -

"When the injury is not inflicted intentionally, but negligently, I would say that the only cause of action is negligence and not trespass".

At p. 934 he concluded by saying: -

"Her only cause of action here, in my judgment (where the damage was unintentional), was negligence and not trespass to the person".

Diplock, L.J. , at p. 934 started his judgment with these words:-

"A cause of action is simply a factual situation the existence of which entitles one person to obtain from the Court a remedy against another person".

And, further down: -

"If A., by failing to exercise reasonable care, inflicts direct personal injuries on B., it is permissible today to describe this factual situation indifferently, either as a cause of action in trespass, and the action brought to obtain a remedy for this factual situation as an action for negligence or an action for trespass to the person - though I agree with Lord Denning, M.R., that today 'negligence' is the expression to be preferred". [*1091]

With regard to those cases where the act is done on purpose, it is frequently said that in order to constitute a battery there must be a hostile intent.

We now turn to the facts and circumstances of the case in hand.

The Plaintiff's claim is for damages, for loss and injury caused by:-

(1) Assault;

(2) Negligence of Defendant in driving his motor car.

In paragraph 3 of the Statement of Claim we read:-

"On or about the 9th January, 1971, the defendant did by the use of the aforesaid motor vehicle on a road, to wit the Polemidhia road and the Arch. Makarios III Avenue in Limassol, assault the Plaintiff causing to him physical injuries and loss".

The material part of paragraph 5 reads as follows:-

"Alternatively, the aforesaid injuries and loss were occasioned by the negligent or reckless use by the defendant of the aforesaid motor vehicle on the said road in that ……"

and particulars of negligence are set out.

The Plaintiff persisted to talk to the Defendant and lean on his car against the latter's wish, or consent and to his resentment. The Defendant had the opportunity, [*1092] and it is the view of the Court that he was well aware of the position of the Plaintiff’s hands at the time. The Defendant was disturbed by the Plaintiff’s presence and insistence and told him loudly to go away. When the Plaintiff failed to do so, he forcibly shut the door in such a way that the Plaintiff only managed to leap backwards, but, nevertheless the Plaintiff's fingers were trapped in the door of the Defendant’s vehicle. The Plaintiff in agony and pain was knocking on the glass pane of the car and was shouting to the Defendant to stop, saying: "My fingers, my fingers!" The Defendant must have heard the Plaintiff and noticed that the Plaintiff was being dragged along. Nevertheless, he drove against the red lights, turned to the right and stopped after covering 500 ft. (Vide evidence of P.W.2 Sub Insp. M. Michaelides).

This was definitely not an omission but an act.

Section 26(1) of Cap.148 provides that the application of the force must be "intentional".

In the criminal case of Fagan v. Metropolitan Police Commissioner, (supra) at p. 445 James, J., said:-

"For an assault to be committed, both the elements of actus reus and mens rea must be present at the same time. The 'actus reus' is the action causing the effect on the victim's mind: See the observations of Parke, B., in R. v. St. George. The ’mens [*1093] rea' is the intention to cause that effect. It is not necessary that mens rea should be present at the inception of the actus reus; it can be superimposed on an existing act".

"Intention" signifies full advertence in the mind of the defendant to his conduct, which is in question, and to its consequences, together with a desire for those consequences. But it is essential to add that the interpretation of this definition by the law is often technical. (Winfield on Tort, 7th edition, p. 17).

On page 18 of the same authority we read:-

"Then, again, although intention always implies desire for the consequences of an act or omission, many a wrongdoer has found himself responsible in law for consequences which he not only did not 'desire' in the layman's sense of the term but to which he did not even advert".

Most of the cases in which the intention of a person was judicially considered are criminal cases.

In the much argued and criticised by writers case of D.P.P. v. Smith,(1961)A.C. 290, it was held that a party must be considered in point of law to intend that which is the necessary or natural consequence of that which he does.

In the case of Georghios Protopapas v. The Police, 1962 C.L.R., p. 27, at p. 29 we read:- [*1094]

"With regard to the question of intent, on the Authority of Rex v. Steane, (1947) K.B. 997 at p. 1004, if the Prosecution Drove an act the natural consequence of which would he a certain result and no evidence or explanation is given, then a jury may, on proper direction, find that the prisoner is guilty of doing the act with the intent alleged".

The facts and circumstances of this case lead unequivocably to the inference that the Defendant did the acts which resulted in the injury of the Plaintiff, intentionally. He is therefore guilty of assault.

Even if the Defendant were found not to have acted intentionally, he is guilty of negligence. He shut the door of the car under his control without consideration for the safety of the Plaintiff and without ensuring that it was in the circumstances safe for him to drive off. Further, he failed to stop forthwith, or on realising that he had trapped the Plaintiff’s fingers in the door and he was dragging him along the road.

The Defendant acted in "reckless disregard for the safety" of the Plaintiff.

"'A reckless disregard for safety' means doing or omitting to do something when one recognises that one's act or omission is likely to cause serious injury and one does not care whether it does or not". (Per Salmon, L.J., in Harrington v. B. R. Board.

(1971) 1 All E.R. 897 at p. 906). [*1095]

Indeed, if the Defendant did not intentionally assault the Plaintiff, what less did he do than to act in reckless disregard for the safety of the Plaintiff?

We now turn to the damages the Plaintiff is entitled to.

The Plaintiff's Advocate contended that his client is entitled to exemplary damages because of the conduct of the Defendant. On the other hand, Counsel for the Defence submitted that his client was provoked and, therefore, the damages to which the Plaintiff is entitled must be reduced.

Provocation offered by the Plaintiff to the Defendant may reduce the damages for assault. Provocation, however, goes to reduce the exemplary or rather aggravated element in damages, but not the compensatory element.

In the Canadian case of Natonson v. Lexier (1939) 3 W.W.R. 289, where the defendant was provoked to assault by reason of the plaintiff's misconduct with the defendant’s wife, it was held that, where serious injuries are sustained, the plaintiff is entitled to full compensation for the actual injuries.

The High Court of Australia in Fontin v. Katapodis (1962), 108 C.L.R. 177, held that provocation could be used to wipe out the element of exemplary or aggravated damages, but could not be used to reduce the actual figure of pecuniary compensation. [*1096]

McTiernan, J., said:-

"The damages awarded are actual and compensatory damages, nothing else ...... solely for personal injuries and consequent economic loss. They may be called compensatory or actual damages to distinguish them from exemplary, punitive, or aggravated damages".

The Court of Appeal in England in Lane v. Holloway (1967) 3 All E.R. 129 followed the Australian decision.

Lord Denning, E.R. , said at p. 132:-

"I think that the Australian High Court should be our guide. The defendant has done a civil wrong and should pay compensation for the physical damage done by it. Provocation by the plaintiff can properly be used to take away any element of aggravation; but not to reduce the real damages".

Salmon, L.J., said at p. 133:-

"I entirely reject the contention that because a plaintiff, who has suffered a civil wrong, has behaved badly, this is a matter which a Court may take into account when awarding him compensatory damages for physical injuries which he has sustained as the result of a wrong which has been unlawfully inflicted on him".

After referring to two old English decisions he proceeded: - [*1097]

"For my part I accept entirely what was said in the High Court of Australia in Fontin v. Katapodis. It was an exceptionally strong Court consisting of Sir Owen Dixon, C.J., McTiernan and Owen, JJ. The case seems to me, for all practical purposes, indistinguishable from the present and it states in the plainest terms what, as I have already said, I should have been prepared to hold without any authority, namely, that on principle, when considering what damages a plaintiff is entitled to as compensation for physical injury, the fact that the plaintiff may have behaved badly is irrelevant".

The Plaintiff in this action at the material time behaved badly. It is his conduct that provoked and enraged the Defendant who, thereupon, committed the act of assault. This provocation, however, in the light of the authorities, cannot reduce the compensatory damages.

General Damages

The Plaintiff received first-aid at the Limassol Hospital by Dr. Loizou. The Medical Certificate issued by Dr. Loizou was produced by consent and marked exhibit 1.

As the Plaintiff’s fingers were painful and infected, the Plaintiff resorted to Dr. Tornaritis who examined the Plaintiff on 19/1/71 and found that he had a painful swelling over the proximal joint of the right little finger and infected abrasions and small lacerations over the dorsal aspect of the left middle and ring fingers. There was no [*1098] bone injury. The wounds were dressed and changed at regular intervals. They were painful injuries, mostly when the Plaintiff tried to move the fingers as the wounds used to crack with movements. After X-raying the small finger, Dr, Tornaritis noticed a foreign body, and by a small incision he extracted a small piece of glass therefrom. The Plaintiff fell on the ground when his hand was released and this glass penetrated his small finger when his hand came into contact with the ground. The Plaintiff recovered fully but some faint scars were left on his left middle and ring fingers. The Doctor described these injuries as minor.

Dr. Loizou, who first examined the Plaintiff, stated in his Report (Exhibit 1) that the Plaintiff was capable to resume work on 21/1/71. I prefer the evidence of Dr. Tornaritis who examined and treated the Plaintiff on 19/1/71 and was, therefore, in a better position than Dr, Loizou,

Taking into consideration all the heads under which general damages are awarded, I came to the conclusion that an amount of £75 would fairly compensate the Plaintiff.

Special Damages

Special damages except loss of earnings were agreed at £24.500 mils. The Plaintiff was a builder by profession earning £15 per week and at the time he undertook a small building contract which he could not perform as, according to his own evidence and that of Dr. Tornaritis, he was incapacitated from work for four weeks - until 6/2/71. He lost £15 a week, i.e. he paid £30 to another builder to do the [*1099] work for him for two weeks and thereafter he lost wages for another two weeks. His loss of earnings amount to £60.

In the result, judgment is given for the Plaintiff against the Defendant for £159.500 mils with costs on that scale to be assessed by the Registrar.

Judgment and order

for costs as above.