Court allows assault damages despite defendant's criminal guilty plea, rejecting the bar on civil liability.

[*537] 1978 August 24

(STYLIANIDES, P. D. C. & LAOUTAS,

D. J.)

IN THE DISTRICT COURT OF NICOSIA

Savvas Savvides,

Plaintiff,

and

Chrysostomos Antoniou,

Defendant.

(Action No. 5479/76).

Civil Wrongs - Assault - Plea of guilty in criminal case - Whether defendant debarred from raising defences - Self-defence - Defendant attempting to assault plaintiff with his hands - Plaintiff grasping defendant’s hands preparing to assault him hut letting him loose without doing so - Defendant assaulting plaintiff with chisel - Plea of self-defence fails.

Damages - General damages - Assault

- Whether exemplary damages can be awarded for assault - Wound in chest wall, about 2 c.m. caused by sharp and cutting instrument - Surgical emphysima covering left part of chest wall and haemothorax of light nature - In hospital for 9 days - Severe pain and difficulty in breathing - Award of £750.

A. Georghiades for St. Ambizas, for the Plaintiff.

A. Danos, for the Defendant.

JUDGMENT

The judgment of the Court was delivered by:-

STYLIANIDES, P.P.C.:- The plaintiff by this [*538] action claims damages for assault. It is the allegation of the plaintiff in the statement of claim that on

30.8.76 the defendant unlawfully and intentionally assaulted him with a chisel and caused to him personal injuries, loss and damage, particulars of which are set, out therein.

The defendant contested and denied the claim. In the statement of defence it is averred that the plaintiff assaulted the defendant. In the alternative it is alleged that the defendant acted in self - defence and/or under serious provocation and claimed the dismissal of the action.

The parties are carpenters and furniture makers by occupation. The plaintiff is a refugee and carries on business in partnership with a certain Sophoklis, in the shop of the latter, The defendant runs his own business in Aglandjia suburb.

On 30.8.76 the defendant assaulted the plaintiff with a chisel in the latter's shop. The plaintiff was injured and was conveyed to the Nicosia General Hospital where he received treatment. The defendant was prosecuted and pleaded guilty to a charge of unlawful wounding contrary to Section 228(a) of the Criminal Code, Cap. 154, It was argued by plaintiff's counsel that in view of the confession of the defendant - his plea of guilty in the criminal case - the defence as to liability was in law untenable, In Murphy v. Culhane, (1976) 3 All E.R. p. 533, the defendant was convicted on a plea of [*539] guilty of the manslaughter of the plaintiff’s husband. The plaintiff claimed damages under the Fatal Accident 1846 - 1959 and the Law Reform (Miscellaneous Provisions) Act, 1934. The defendant admitted that the had pleaded guilty to manslaughter and that the husband died as a result of his assault, but alleged that the assault had occurred during a criminal affray which the husband had initiated with others for the purpose of assaulting the defendant. He contended that he was not liable to the plaintiff for the husband’s death on the ground that he could avail himself of the defences of (i)ex-turpi causa non oritur actio and (ii) volenti non fit injuria. It. was held by the Court of Appeal that irrespective of the admission by the defendant of his plea of guilty, he was entitled to raise defences in civil proceedings following his convection. There were matters which might not only aggravate or mitigate the damages awarded but also provide a complete defence to liability for the tort complained of. Therefore, despite the plea of guilty the allegation of self-defence, if substantiated by the facts, is maintainable

The civil wrong of assault is defined in Section 26 of the Civil Wrongs Law, Cap. 148. In Letang v. Cooper,

(1964) 2 All E.R., p. 929, Lord Denning, M.R. said at p. 932:-

"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, trespass to the person". [*540]

In Fagan v, Metropolitan Police Commissioner, (1968) 3 All E.R., 442, a criminal case, 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 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".

In an action brought in respect of any assault it shall be a defence that the defendant acted for the protection of himself, or another person against an unlawful use of force by the plaintiff and that in so acting he did no more than was reasonably necessary for that purpose and the damage caused to the plaintiff by the assault was not disproportionate to the damage sought to be avoided (Section 27(a) of Cap. 148). This section incorporates the common law on the subject. In Halsbury's Laws of England, 4th edition, volume 11, para. 1180, we read:-

"Provided the force used is reasonable a person is entitled to defend not only himself, or a member of his family, but even a complete stranger if the stranger is subject to unlawful attack by others. [*541]

In deciding whether the force used was reasonable, all the circumstances may be considered. The matter is one of fact and not one of law, hence it cannot be ruled that a person who is attacked must retreat before retaliating. A person’s opportunity to retreat with safety is a factor to be taken into account in deciding whether his conduct was reasonable, as is his willingness to temporise or disengage himself before resorting to force".

The

aforesaid statement of the law is based on R. v. Julien, (1969) 2 All E.R. p. 856; Palmer v. R.. (1971) 1 All E.R. 1077, and R. v. Mclnnes, (1971) 3 All E.R. 295.

We shall consider now the evidence adduced as to the happening.

The plaintiff (P.W.1), Stavros Michael (P.W.2) and Christakis Phani (P.W.3) testified for the plaintiff. The defendant was the sole witness for the defence.

The defendant had in his employment for a number of years Stavros Michael (P.W.2). In August, 1976, this employee asked for a rise in his wages. The defendant promised to give him some increase. Stavros Michael went for his annual holiday in August, 1976, and returned to the defendant's shop on 30.8.76. Plaintiff's partner is related to the said Stavros Michael. Three days before 30.8.76 this employee resorted to the plaintiff and his partner and agreed to take up employment with them on Monday, the 30th August, 1976, obviously at higher wages. [*542]

In the morning of 30.8.76 Stavros Michael went first to the workshop of the defendant and informed him that he would leave his employment. The defendant asked him to stay as he intended to arrange the matter of his claim for increased pay. The employee had already taken his decision and in order to avoid the defendant he told him that he would go to the workshop of the plaintiff and return. He did not return. He took up employment with his new employers.

About an hour later the defendant passed by the workshop of the plaintiff and saw his employee working there. He entered the shop and had a conversation with him on the subject of his employment. It is the contention of the plaintiff that he approached the defendant and greeted him. The defendant insulted him; the plaintiff asked of him the reason of the insults. The defendant assaulted him with his bare hands. They came to grips. They were wrestling there, standing on some piece of wood. The employee, Stavros Michael, said to the plaintiff, "Don’t strike him; he is of ill health". The plaintiff let the defendant, turned round but then the defendant grasped the chisel (exhibit No. 1) from the nearby router and pierced the left side of the defendant under the shoulder. The defendant pulled the chisel and attempted to strike for a second time. The plaintiff grasped his hands and his employee disarmed the defendant. The plaintiff was conveyed to the Nicosia General Hospital bleeding. The router was not in operation at the time and he [*543] denied in cross-examination that he pushed the defendant on the router which is electrically operated. In crossexamination it was put to him: "Q. I put it to you that the defendant neither assaulted you nor insulted? " A. No. "Q. I put it to you that when you were pressing him on the 'svoura' (router) he extended his arm; he took the chisel (exhibit No. 1) from the ’svoura’ and he assaulted with it? A. No, this is not true".

Stavros Michael (P.W.2) stated that he took up employment with the plaintiff and his partner. He was operating an electrical plane. The defendant went to that shop, asked the witness if he would return to his employment. The reply was in the negative. The plaintiff was operating a saw. He approached the defendant and asked him how he was getting on. The defendant insulted the plaintiff with the words "vromismene prosfyga", etc. When the plaintiff asked the reason, he was insulted, the defendant attempted to assault the plaintiff with his hands. The plaintiff grasped defendant's hands. The plaintiff got hold of the defendant and was ready to assault assault him with his fists. The witness said to the plaintiff, "Dont’ hit him; he is ill". The plaintiff let the defendant loose. As the plaintiff was turning round to go away, the defendant took the chisel from the router and pierced the plaintiff’s side. The defendant pulled back the chisel and was about to deliver the second blow, but the plaintiff disarmed the defendant. At the time the plane was in operation but the router was not. The defendant [*544] was pushed by the plaintiff on a wood or plank. The witness was asked in cross-examination: "Q. I put it to you that the plaintiff pushed and pressed the defendant on the plane that was in operation? A. No".

The defendant was furious when he made the first move to assault the plaintiff with his hands. The plane and the router were on the left of the defendant and the wood on his right. This witness demonstrated that the defendant was actually facing the router and the plane and his back was leaning on a piece of wood. The plane and the router are operated separately by two different motors.

Christakis Phani (P.W.3) is an employee of the plaintiff? and his partner. He was working in another room. He heard conversation; he turned and saw the defendant talking to P.W.2. He heard louder voices and saw the plaintiff approaching the defendant. The defendant insulted the plaintiff with the words "leshiasmene, pezevengi", etc. The witness continued his work. When he looked again, he saw the defendant holding the chisel with the left arm raised. He rushed and grasped the arm of the defendant who tried to hit the plaintiff again. The plaintiff withdrew and the defendant put the chisel on the plane. The plaintiff had already been injured. This employee did not witness the delivery of the blow that caused the injury.

The version of the defendant is that whilst he was having a conversation with Stavros Michael, the plaintiff intervened and told him that Stavros Michael [*545] quitted his employment and the plaintiff would give him more wages. The defendant replied, "Mind your own business" and made a gesture telling the plaintiff off. The plaintiff grasped the defendant's hand, pulled him. and then pushed him on the machine that is a complex of a plane and a router. The plaintiff was pressing the shoulders of the defendant on the machine and whilst in that position he extended his right hand, grasped the chisel and scratched the side of the plaintiff. He reacted in that way lest he would be injured as the machine was in operation. He did not insult the plaintiff in the beginning; he only made a gesture with the right hand and said, "Piyene, re karakiozi". He admitted that whilst the plaintiff was pressing him, the employee, Michael, said to the plaintiff, "Leave him; he is ill". He had no way of escape.

The initial injury of the plaintiff as described by Dr. Periclis K, Symeonides, was a wound in the chest wall about

2 c.m. caused by a sharp and cutting instrument. During the clinical examination the plaintiff was presenting a surgical emphysima which was covering the left part of the chest wall and haemothorax of light nature. The chisel is exhibit No. 1 before us.

We heard and observed the witnesses. There aresome discrepancies about the disarmament of the defendant. Each witness for the plaintiff gave a different version This is naturally explained by the confusion that must have prevailed due to the wounding. The defendant gave [*546] us the impression that he was very much aggrieved because Stavros Michael, who was in his service for many years, took up employment with the plaintiff under the circumstances to which we have referred. He is a person of ill health. He suffers from high blood pressure.

Having carefully considered and weighed the evidence before us, we find the true facts as follows:-

The defendant, when he found out that Stavros Michael was employed at plaintiff's workshop, he tried to convince him to return to him. The plaintiff intervened and said that Michael would stay with them as they would give him higher wages. The defendant was infuriated, insulted the plaintiff and raised his hands in an attempt to assault the plaintiff. The plaintiff, who is of strong physique, grasped defendant's hands and pushed him backwards on some planks or wood very close to the complex of the router and the plane. The plane was in operation but not the router. The plaintiff must have done something which gave the impression to witness Michael that he would assault the defendant with his fist. The witness warned his new master to let the defendant, as he was of ill health. This warning made the plaintiff let the defendant loose who found the opportunity, took the chisel and assaulted the plaintiff. The defendant was about to deliver a second blow but he was prevented by Michael and disarmed by the plaintiff.

In view of our aforesaid findings the plea of self-defence fails. The defendant is guilty of assault. [*547]

DAMAGES:-

Medicines, transport expenses and the damage to plaintiff’s shirt and vest were agreed at £13.- Plaintiff claims £462.- loss of earnings for the period 30.8.76 - 14.11.76 Dr. Symeonides gave the temporary incapacitation of the plaintiff as two months from the second discharge of the plaintiff from the hospital, 15.9.76. Thus the plaintiff was deprived of his earnings because of the assault for 2½ months, i.e. 11 weeks. He was working in partnership with Sophoklis and he was drawing £30.- per week. His loss of past earnings amounts to £330.-

Learned counsel for the plaintiff invited the Court to award exemplary damages against the defendant. The defendant’s counsel, on the other hand, submitted that the plaintiff was guilty of provocation and that he was himself at fault and the damages should be reduced.

Damages are compensatory, aggravated or exemplary. In awarding aggravated damages the natural indignation of the court at the injury inflicted on the plaintiff is a perfectly legitimate motive in making a generous rather than a more moderate award to provide an adequate solatium. But that is because the injury to the plaintiff is actually greater and as the result of the conduct exciting the indignation demands a more generous solatium. (Per Lord Hailsham, L.C. in Cassell & Co. Ltd. v. Broome. (1972) 1 All E.R. 801, at p. 825). [*548]

Exemplary damages are essentially different from ordinary damages. The object of damages in the usual sense of the term is to compensate. The object of exemplary damages is to punish and deter. It may well be thought that this confuses the civil and criminal functions of the law. (Per Lord Devlin in Rookes v. Barnard,

(1964) 1 All E.R. 367, at p. 407).

Exemplary damages are intended to teach the defendant and others that tort does not pay by demonstrating what consequences the law inflicts rather than simply to make the defendant suffer an extra penalty for what he has done, although that does, of course, precisely describe their effect.

In England exemplary damages for assaults were awarded by the courts. In Loudon v. Ryder, (1953) 1 All E.R. p. 741, at pp. 743 and 744, the Court of Appeal confirmed an award of exemplary damages for assault. In Rookes v. Barnard (supra) the categories for which exemplary damages are awarded were restricted to three: (a) The first category is oppressive, arbitrary or unconstitutional action by the servants of the government. (b) Cases in the second category are those in which the defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff. (c) There must be of course added any category in which exemplary damages are expressly authorised by statute. The judgment in Loudon v. Ryder was completely overruled. [*549]

In Cassell & Co. Ltd. v. Broome & Another, the decision of the House in Rookes v. Barnard was held that it had correctly formulated the principles of law governing the circumstances in which exemplary damages, i.e. damages by way of punishment of the defendant in excess of those necessary to compensate the plaintiff for the injury done to him, might be awarded to a plaintiff in the case of certain torts.

In Cyprus exemplary damages were in the past awarded for assault. (See Erodotos Georghiou Ellinas v. Maroulla Nicolaides. XX C.L.R., Part II, p. 60). That was a case of assault and false imprisonment. In Stavros Gregorides v. Evangelos Kyriakides, (1970) 1 C.L.R. p.120, decided some 6 years afters Rookes 7, Barnard,exemplary damages for assault were awarded by the Court of Appeal. Reference is made in that decision of Loudon v. Ryder (supra) but no mention is made of the House of Lords' decision in Rookes v. Barnard. In Mpuzouras case, (1973) 10 J.S.C. 1245, the Supreme Court confirmed an award of exemplary damages for breach of promise of marriage. The Court did not follow the two aforesaid decisions of the House of Lords. Hadjianastassiou, J., said at p. 1282:-

"Before concluding, however, we would like to observe regarding the question of exemplary damages, that even if the reasoning of their Lordships in the House of Lords in Rockes v. Barnard (supra)

indicates that they would not approve of the continued use of exemplary damages [*550] for this type of a breach of contract of marriage,

because such use would be anomalous, then once we are of the view that our law was developed by slow processes and not of faulty reasoning, we would have felt even if this point was argued, that there would be no need indeed to change the law on this issue. On the contrary, the policy of awarding exemplary damages for this type of breach of contract is so deeply rooted in our country because of the notions prevailing in Cyprus, and is fashioned so largely by judicial opinions until recently; that the decision in Rookes v. Barnard does not compel us to change the law which as we have said earlier, it is well-settled and it could only be done by the House of Representatives".

It is not the only branch of the law in which our courts departed from the English common law. In cases of assault, however, which is a criminal offence, the defendant is normally prosecuted and he is punished by the criminal courts. Therefore, the object of punishment of the culprit and the deterrence of others is effected by the armory of the criminal law and the award of exemplary damages to the victim, in our view, is an additional punishment which our courts should not impose. In the present case we have referred to the circumstances of the assault and we are of the opinion that even if exemplary damages were awarded for assault, this is not a proper case. This case does not deserve even aggravated damages. [*551]

Provocation - It was held in the Australian case of Fontin v. Katapodis,

(1962) 103 C.L.R, 177, that Provocation could be used to wipe out the element of exemplary or aggravated damages but could not be used to reduce the figure of pecuniary compensation. The English Court of Appeal in Lane v. Holloway, (1967) 3 All E.R. 129, followed the Australian decision. Lord Denning, M.R., said at page 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".

These cases were followed by our courts, (See Rasid v. Braybrook, (l972) 8 J.S.C. 1082).

In Gray v. Barr (Prudential Assurance Co. Ltd., third party), (1971) 2 All E.R. 949, it was said by Lord Denning, M.R.,at p. 957:-

"In an action for assault, in awarding damages, the judge or jury can take into account, not only circumstances which go to aggravate damages, but also those which go to ‘mitigate them".

He

reiterated this principle in the recent case of Murphy v. Culhane, (1976) 3 All E.R. 533, in the following words:- [*552]

"That is the principle I prefer rather than the earlier cases".

With regard to damages, however, it must be said that the provisions of s.57 of the Civil Wrongs Law, Cap. 148, governing apportionment of liability are applicable:-

"When any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons ... the damages recoverable in respect thereof shall be reduced to such extent as the Court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage".

"Damage" includes personal injury and "fault" means negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort or would, apart from the Civil Wrongs Law, give rise to the defence of contributory negligence. Therefore, if a plaintiff contributed by his fault, the damages fall to be reduced to the degree of his fault. The conduct, however, of the plaintiff in the present case was not such that he should be regarded as responsible in any degree for the damage. Therefore, we shall award to this plaintiff compensatory damages only.

The plaintiff, when admitted to the hospital, had a wound in the chest wall, about

2 c.m., caused by a sharp and cutting instrument. During the clinical examination [*553] he was presenting a surgical emphysima which was covering the left part of the chest wall and haemothorax of light nature. Chest X-rays taken showed surgical emphysima with mild haemothorax at the base of the left lung, without signs of pneumothorax or fracture of the ribs. X-rays were taken on the following day, 31.8.1976, whilst the patient was in bed in order to avoid complications of the haemothorax which showed good expansion of the rest of the left lung. Conservative treatment was applied; the signs of dyspnoea dissappeared after the first days. Clinically he was then looking well and on 7.9.76 he was discharged from the hospital. He was advised to be followed up on an outpatient basis. On 9.9.76 he was readmitted with recurrence of the previous symptomatology, that is, great dyspnoea, haemoptysis with pain on inhaling. Clinically and radiologically he presented too much blood in the cavity. Chest paracentesis was made and 600 c.c. of blood fluid was removed. Again on 10.9.76 he was reexamined radiologically and haemothorax was shown on the film. On 13.9.76 another paracentesis was made and 670 c.c. of blood fluid was again removed. His symptoms subsided and as the haemothorax disappeared, on 15.9.76 he was discharged from the hospital. During the follow-up he was found presenting "mesoplevrias neuralgias” which may be permanent and adhesions developed on the base of the left lung.

The plaintiff resorted to a

specialist physician, Marios Christofides (P.W.4), who gave him consevative [*554] treatment and some injections. There is a possibility for

the symptoms to subside but none of the two doctors could testify with certainty about this.

The plaintiff stated that he experienced originally severe pain which now is less intense; he has some difficulty in breathing; he suffers from easy fatiguability and his endurance has decreased. On inhaling he feels some pain in the lungs on the lower left part. When he gets cold, his condition deteriorates. He alleged that his productivity has fallen to 2/3rds of his pre-assault capacity. This contention, however, is not supported by the medical evidence. He will only require some rest intervals and no more. He stated that after 2 hours’ hard work, he needs half an hour's rest. He starts work at 7.30 in the morning and on occasions he downtools at 7.00 p.m. or oven 9 p.m. This is more than the ordinary working day of uven a hard worker. By this, however, we should not be taken to subscribe to the view expressed by counsel for the defence that the plaintiff will not have any difficulty in performing his duties as a carpenter or furniture maker. He will do his work but he will need some more rest intervals than an ordinary healthy person.

An amount of £750.- is a fair and reasonable compensation for this plaintiff. Adding to this amount £343.- special damages, we give judgment for the plaintiff for £-1,093.- with costs to be assessed by the Registrar.

Judgment for plaintiff for £1,093.- with costs.