ACN 087 528 774 P/L (formerly Connex Trains Melbourne P/L) v Chetcuti [2008] VSCA 274

2 Hargrave AJA demonstrates that the learned trial judge acted upon a misapprehension as to the law with respect to the tort of assault. But although her Honour's finding for the respondent on that cause of action was thus successfully impugned, it cannot lead to judgment for the appellant. That is because, so far as her reasons for judgment disclose the situation, the judge failed to address the entirety of the respondent's claims as they were eventually articulated at trial; and because her reasons in respect of an allegation of battery were insufficient.

3 Further, to the extent that her reasons might be said to have addressed an alternative way in which the assault claim was pursued,[1] the judge concluded that there were two causes for the appellant fleeing. There is a serious question whether identification of the second cause was based upon a logical path of reasoning. But be that as may, her Honour did not decide - and having regard to the way in which the assault claim now under consideration was formulated she needed to do so - whether either or both of them was, considered discretely, a sufficient cause of him fleeing; the independent sufficiency of the first of them being a necessary step in the respondent's proofs.

4 I have had the benefit of reading in draft the reasons of Hargrave AJA. I agree with his Honour's proposed disposition for the reasons he gives.

5 In April 2003 the appellant, who I will call 'Connex', was a public transport company operating rail services in Melbourne. At that time, the respondent, Joseph Chetcuti, was a 31 year old panel beater.

6 On 10 April 2003, Mr Chetcuti attended Macleod railway station after having finished work, intending to catch a train home. Whilst he was at the railway station, Mr Chetcuti engaged in offensive and highly confrontational behaviour towards two officers employed by Connex, Corrado Alongi and Imran Jamal. In the resulting events, Mr Chetcuti committed a number of offences contrary to the Transport Act 1983 (Vic) ('the Act') and ultimately spat in the face of Mr Alongi before running from the officers as fast as he could. The officers gave chase. In the course of this chase, Mr Chetcuti fell to the ground and fractured his right wrist. When the officers took hold of him to detain him, Mr Chetcuti struggled violently to escape. During this struggle, there may have been further injuries to his right wrist. The injuries suffered by Mr Chetcuti were serious, and will permanently prevent him from working as a panel beater.

7 Mr Chetcuti sued Connex in the County Court of Victoria seeking damages for assault and battery. In his statement of claim, particulars were given of the alleged assault and battery. Those particulars bore no relationship to the evidence presented at trial by and on behalf of Mr Chetcuti. Unfortunately, the trial judge did not insist that the pleadings be amended so as to accord with the case in fact conducted at trial. The trial judge was wrong in failing to so insist.[2] However, Connex raised no objection to the departure from Mr Chetcuti's pleaded case. In these circumstances, it fell to the trial judge to determine the case which was in fact presented for her determination. As appears below, the trial judge both erred in principle when considering Mr Chetcuti's claim in assault, and failed to adjudicate upon all issues presented for her determination. It is principally for these reasons that the appeal by Connex to this Court must be allowed and the case remitted for re-trial in the County Court before a different judge. In the circumstances of this case, that is an unfortunate but necessary result. It is especially unfortunate in light of the fact that the trial occupied 11 sitting days and the decision was reserved for close to nine months before judgment.

8 The trial judge decided the case in favour of Mr Chetcuti and awarded him damages, including interest, in the sum of $571,178.55. In so deciding, the judge held that the two Connex officers committed the tort of assault upon Mr Chetcuti. This decision was based on findings by the judge that:

(1) the officers chased Mr Chetcuti with the intention of physically detaining him if they caught him;

(2) the chase caused Mr Chetcuti to continue running as fast as he could;

(3) Mr Chetcuti's decision to run was based upon a combination of two matters:

(a) because he feared being caught and detained pending the arrival of police; and

(b) because he expected physical retaliation in response to his act of spitting in the face of Mr Alongi. In Mr Chetcuti's words, he feared that the officers would 'bash' him; and

(4) as Mr Chetcuti would not have fallen if he had not been chased by the two officers, the chase caused Mr Chetcuti to be injured.

9 To the extent that there was any further injury or aggravation to the initial injury suffered by Mr Chetcuti as a result of his fall, about which no definite finding was made, the trial judge found that it was probably caused by a battery upon Mr Chetcuti by the Connex officers during the struggle which resulted from Mr Chetcuti's attempts to escape once the officers had caught hold of him.

10 The judge rejected Mr Chetcuti's evidence that he was deliberately tripped by one of the officers so as to cause him to fall, or that Mr Jamal deliberately trod on his injured wrist following the fall.

11 At trial, Connex denied that the conduct of its officers constituted an assault or battery of Mr Chetcuti. In addition, defences of self-defence, contributory negligence and justification under s 220 of the Act were raised. Other than to note that the only potentially viable statutory defence of justification was pursuant to s 219AA of the Act,[3] and that a late application by Connex to amend its defence to rely upon that section was abandoned, it is unnecessary to consider these defences in any detail. The judge rightly rejected the defences pleaded. Given the abandonment of the application to plead justification arising under s 219AA of the Act, and the failure to raise s 458 of the Crimes Act 1958 (Vic) as providing a possible justification for any assault or battery, the case fell to be decided in the absence of any defence of justification being available to Connex. None of these issues have been raised for determination on appeal.

12 Connex appeals against the whole of the orders made by the trial judge. In summary, Connex contends that the trial judge was mistaken in her understanding and application of the elements necessary to establish the tort of assault, made a critical finding of fact which was internally inconsistent and illogical, and failed to give adequate reasons for her decision.

13 In addition to supporting the trial judge's decision, Mr Chetcuti contends that the decision may also be supported upon grounds other than those stated in the judge's reasons, one such ground being that the judge ought to have found that Mr Jamal stood on Mr Chetcuti's injured wrist after he had fallen and thus substantially aggravated that injury. In this latter regard, it is contended on behalf of Mr Chetcuti that the judge's reasons for rejecting this aspect of his claim were inadequate.

14 Having canvassed the facts in detail, the trial judge stated her conclusions on the essential factual questions, stated the applicable legal principles as she understood them and applied them to the facts as found. In order to dispose of the issues on appeal, it is convenient to set out these paragraphs of the trial judge's reasons in full:

1. I am satisfied that even on Mr Chetcuti's own version of events, he initiated a confrontation on platform 2 with the inspectors and then acted in what he knew was an illegal way by jumping onto the tracks and crossing them. I do not accept that he did that to avert further confrontation; I conclude that he was trying to avert being arrested if police arrived as he believed they had been called, and he did that by purchasing a ticket. That he then precipitated further confrontation, in my view, is clear because he not only again crossed the tracks in a way he knew to be illegal, whereas at that stage there was nothing stopping him from going further down to the crossing point, and he did this as a train was pulling into the station so it was dangerous both to himself and others had the train jerked to a sudden stop to avoid him. He then jumped over a cyclone fence which was clearly not intended to be other than a barrier to people crossing it. That he then walked straight towards the area where he had last seen the inspectors was again inviting confrontation and it was both dishonest and ingenuous for him to say to them, as he says he did, that 'I've done nothing wrong' as he sought to board the train, simply because he had bought a ticket. That he spat towards Mr Alongi does not seem in doubt, and that it made Mr Alongi angry is totally understandable. The critical issues in this case, however, turn on what happened next.

Did the plaintiff's injuries result from an assault by the defendant's officers?

1. The torts of assault and battery involve the intentional touching of a person without his consent. There can be assault alone by intentional acts creating apprehension of imminent physical attack or harm, and it becomes battery if the offensive acts make contact with the other person. Intention to harm need not be proved, however an intentional act that creates the apprehension of harm, or which constitutes the battery, is required.
2. I am not satisfied, on the balance of probabilities, that either of the defendant's officers made contact with the plaintiff's left leg causing him to fall, as I believe Mr Alongi that he had not in fact caught up with Mr Chetcuti at that stage, and Mr Chetcuti did not actually see what happened.
3. In my view, it is more likely than not that Mr Chetcuti lost balance by indecision as to whether to take the pathway to the left of the ramp, beginning to veer to the left and then changing his mind, while he was running as fast as he could, and in doing so he lost his balance, and fell, putting his hands down as an instinctive protection. It is clear that he suffered one or more fractures to his right wrist at that stage, causing as he says severe pain and his wrist to look distorted.
4. Although I am not satisfied that either of the inspectors deliberately tripped the plaintiff, which would have been battery, I must also consider whether his fall and the resulting injuries were caused by assault in that the inspectors were chasing him in circumstances where he was afraid of being caught and harmed by them because of the anger he had finally evoked in Mr Alongi by spitting on him.
5. I am satisfied that Mr Alongi and Mr Jamal were intentionally chasing Mr Chetcuti, intending to physically detain him, which would have included physically holding him if necessary. I think that Mr Chetcuti's decision to run at that stage was at least in part due to his fear of the police arriving. However I am satisfied, on the balance of probabilities, that he was also fleeing to escape being caught by these officers as he feared being harmed by them. I do not take his word about this; it is largely Mr Chetcuti's less than admirable character that persuades me of that. I am satisfied that he would have expected the officers to retaliate physically because, if the positions were reversed and he had been provoked and finally spat upon, he would have done so. I am satisfied that the officers chased Mr Chetcuti intending to physically detain him after he spat at Mr Alongi - not having pursued him earlier to detain him for his various breaches of the Transport Act - and that he ran fearing being caught and expecting retaliation. As a matter of causation the pursuit caused his fall and the resulting injuries.
6. As to what happened next, I am not satisfied that Mr Jamal deliberately trod on the plaintiff's injured wrist. The evidence points to the primary efforts towards restraining the plaintiff on the ground being by Mr Alongi holding down his left arm and hand - a battery and therefore actionable but not one which caused any compensable injury. I find that Mr Jamal needed to step across Mr Chetcuti to reach his right side as he continued to struggle. The following attempts by the officers to hold him down, and then as an enraged Mr Chetcuti pulled himself under the fence to pull him out, did constitute a battery.
7. The medical evidence of Mr Weaver is that there was an unusual or curious combination of fractures in the wrist suggesting considerable trauma. This was consistent with the wrist being subsequently trodden upon, but that was not an exclusive possible mechanism, and he agreed with Mr John O'Brien that from the history, the subsequent events were not the cause of the fracture but one could certainly not rule out the possibility of some fracture displacement if any further force was applied to the wrist.
8. In my view, insofar as any further injury or aggravation of the initial injury occurred, it was more likely than not caused by Mr Chetcuti hitting his wrist on the fence in the struggle while he was being pulled from under the fence by the defendant's officers.[4]

15 As appears from the reasons quoted, the case advanced at trial on behalf of Mr Chetcuti was that he conducted himself so as to invite confrontation with the two Connex officers, knew that this resulted in those officers contacting the police, crossed the railway tracks, purchased a ticket, re-crossed the railway tracks in a dangerous manner, invited further confrontation with the Connex officers and, when it appeared that they wished to detain him pending the arrival of the police, spat in Mr Alongi's face and then turned and ran. In re-examination, Mr Chetcuti said that he ran as fast as he could because, having spat in Mr Alongi's face and seen his expression after he did so, he thought that the situation 'may become violent' and feared that the Connex officers would 'bash' him.

16 A plaintiff seeking to establish a cause of action for the tort of assault, in circumstances where no physical contact or battery in fact takes place, must prove the following elements:

(1) A threat by the defendant, by words or conduct, to inflict harmful or offensive contact upon the plaintiff forthwith.[5] It is enough if the threat is to make contact to the body of the plaintiff without the plaintiff's consent or without any legal justification.[6]

(2) A subjective intention on the part of the defendant that the threat will create in the mind of the plaintiff an apprehension that the threat will be carried out forthwith.[7] It is not necessary to prove that the defendant in fact intends to carry out the threat.[8]

(3) The threat must in fact create in the mind of the plaintiff an apprehension that the threat will be carried out forthwith.[9] It is not necessary for the plaintiff to fear the threat, in the sense of being frightened by it. It is enough if the plaintiff apprehends that the threat will be carried out without his or her consent.[10]

(4) The apprehension in the mind of the plaintiff must be objectively reasonable.[11]

(5) The plaintiff's reasonable apprehension caused injury, loss or damage to the plaintiff. This requirement attracts the ordinary common law concept of causation by reference to commonsense and, where appropriate, consideration of normative factors such as value judgments and policy considerations.[12]

17 In paragraph 46 of her judgment, the trial judge gave a very brief statement of her understanding of the elements of the separate torts of assault and battery. The trial judge made no reference to any authority for her summary of the applicable legal principles. I accept that the circumstances of the case did not call for anything other than a brief statement of the elements necessary to establish the torts of assault and battery. That being said, some further elaboration was required, and the trial judge ought to have explained the necessary mental elements of intention and apprehension. In my view, reading paragraphs 46, 49 and 50 of the trial judge's reasons, it is apparent that the trial judge misunderstood the law in this regard and that error resulted.

18 The trial judge erred in two important respects. First, the judge said that it was sufficient to satisfy the first two elements of the tort of assault, as stated above, for a defendant to engage in an intentional act which creates in the mind of a plaintiff an apprehension of imminent physical attack or harm. That is a statement of objective intention, and ignores the requirement that a defendant must subjectively intend to create such an apprehension. Second, the trial judge made no reference to the fourth element of the tort stated above. Nowhere in her reasons is there any consideration of the reasonableness of Mr Chetcuti's belief that the two Connex officers intended to cause him harmful or offensive contact if their chase resulted in him being caught.

19 It must be said that, on the material presented to this Court, the trial judge did not receive the assistance from counsel to which she was entitled. During the course of argument on appeal, counsel provided this Court with the brief written submissions made to the trial judge on behalf of Mr Chetcuti and extracts from the transcript of oral submissions. Nowhere in those submissions was the judge's attention drawn to the appropriate mental elements of intention and apprehension which are necessary to establish in order to prove the tort of assault. Indeed, the trial judge may have been misled because the focus of Mr Chetcuti's case was upon the tort of battery resulting from the alleged trip said to have caused him to fall, and the subsequent allegation that Mr Jamal trod on Mr Chetcuti's injured wrist. To the extent that the tort of battery may require intent, it is enough that the defendant intends to do the act which constitutes the battery.[13]

Failure to Consider all of the Appellant's Case

20 This Court has in recent times considered the standard of reasons which are expected of judges when dealing with cases which actually or practically have the result of finally disposing of the rights of parties.[14] It is unnecessary to canvass these principles in any detail for the purposes of disposition of this appeal. It is sufficient to note that it is established that adequate reasons will provide an intelligible explanation of the process or path of reasoning which led the judge to the conclusion reached, and that a judge is required to consider and give adequate reasons in determining each of the substantial issues raised for determination. Where there is a conflict on the evidence, and one version is accepted and the other rejected, the judge must avert to and assign reasons for that rejection. As appears below, the trial judge's reasons in this case did not meet the standard expected and an error of law has thus been disclosed. In particular, the trial judge did not give separate consideration to a substantial argument which was raised for determination, being one of the alternative ways in which Mr Chetcuti put his case.

21 It was submitted on behalf of Mr Chetcuti that, even if it be accepted that the trial judge erred in stating the legal requirements of the tort of assault, her reasons nevertheless disclose findings which are sufficient to constitute the commission of the tort of assault upon Mr Chetcuti. This submission had the following elements. First, it was submitted that there was no dispute on the evidence, and the judge found, that the Connex officers chased Mr Chetcuti with the subjective intention of physically detaining him, by holding him if necessary. This was said to satisfy the first two elements of the tort stated above. Second, it was submitted that any detention by the Connex officers of Mr Chetcuti would necessarily involve one or both of them physically holding him, as it was apparent from his decision to run that he wished to avoid such a result. Third, it was submitted that, in these circumstances, no express finding as to the reasonableness of Mr Chetcuti's apprehension was necessary, because it was undisputed, and the judge found, that the purpose of the chase was to apprehend and physically detain him. Accordingly, the reasonableness of his apprehension that he would be subjected to immediate harmful or offensive contact if caught was so 'blindingly obvious' that no such express finding was required. Fourth, it was submitted that, in the circumstances, no detailed analysis of causation was required given that, as a matter of commonsense, Mr Chetcuti would not have fallen if he had not been chased.

22 I do not accept these submissions. The trial judge did not find that Mr Chetcuti would have run from the two officers, thus causing the chase, because of a mere fear that they may physically hold him pending the arrival of police. The trial judge found that Mr Chetcuti's 'decision to run' was attributable to a combination of two factors. First, because of 'his fear of the police arriving.' Second, because he feared that the officers would 'retaliate physically' against him or, in his own words, 'bash' him in response to his act of spitting upon Mr Alongi. The trial judge concluded that Mr Chetcuti 'ran fearing being caught and expecting retaliation.'

23 It was submitted on behalf of Mr Chetcuti that the second reason given by the trial judge for Mr Chetcuti's decision to run was 'mere surplusage' or 'a superfluous finding'. I reject this submission. The trial judge made a clear finding of fact that Mr Chetcuti's apprehension of unwanted physical contact was based upon both fear of being caught and fear of physical retaliation. The trial judge did not find that either circumstance, of its own, was sufficient to cause Mr Chetcuti to run.

24 The trial judge's finding that Mr Chetcuti's decision to run was motivated, in part, by the desire to avoid detention pending the arrival of police is logical and sustainable on the evidence. Mr Chetcuti well knew that he had acted illegally and that the police had been called. However, notwithstanding this knowledge, Mr Chetcuti did not run away until after he had again approached the Connex officers and spat in Mr Alongi's face.

25 However, the trial judge's finding that Mr Chetcuti was 'also fleeing' in order to avoid physical retaliation, or 'bashing', by the Connex officers may be internally inconsistent and illogical, and such an apprehension on the part of Mr Chetcuti is not one which was so obviously reasonable that no express finding to that effect was necessary. The finding may be internally inconsistent and illogical because the trial judge rejected Mr Chetcuti's direct evidence about this ('I do not take his word about this') yet reasoned that the evidence should be accepted 'largely' because of Mr Chetcuti's 'less than admirable character' which gave rise to an inference that he must have expected physical retaliation 'because, if the positions were reversed and he had been provoked and finally spat upon, he would have done so.' Further, that finding is obviously one as to Mr Chetcuti's subjective apprehension, and involves no consideration of whether that apprehension was, on the evidence, objectively reasonable.

26 Notwithstanding the lack of precision in Mr Chetcuti's case, it was clearly put to the trial judge that Mr Chetcuti was entitled to succeed if he established that he decided to run from the Connex officers because he apprehended that he would be physically detained by them, merely by being held and without any retaliatory violence or bashing, until police officers arrived. Notwithstanding that this submission was made, the trial judge did not deal with it. This was a serious and substantial alternative submission to the other ways in which the case was put in both assault and battery, and the judge was obliged to deal with it. In failing to do so, the judge's reasons are materially inadequate. This is not a case where this Court can cure that inadequacy by substituting its own finding on this alternative of the case presented for adjudication. Whether or not Mr Chetcuti would have decided to run for the sole reason that he apprehended physical detention pending the arrival of police, was a matter to be decided upon the whole of the evidence, including the trial judge's assessment of the credibility of the witnesses on this issue. Accordingly and unfortunately, the result must be that the appeal should be allowed and the case remitted for re-hearing by the County Court.

27 The trial judge's reasons for rejecting Mr Chetcuti's battery case, insofar as it was based upon Mr Jamal allegedly treading on his injured wrist, were inadequate. In the circumstances of the case, the judge was required to consider all of the evidence, both lay and expert, and to reach a reasoned conclusion which disclosed her path of reasoning. It was insufficient for the trial judge to make some general comments about the credibility of the witnesses, involving a criticism of the credibility of both Mr Chetcuti and Mr Alongi,[15] and then conclude that she was 'not satisfied that Mr Jamal deliberately trod on the plaintiff's injured wrist' and that 'insofar as any further injury or aggravation of the initial injury occurred, it was more likely than not caused by Mr Chetcuti hitting his wrist on the fence in the struggle while he was being pulled from under the fence by [Connex's] officers.'

28 It was argued that this Court should reach its own conclusion on this aspect of the case. That is not an appropriate course. The determination of these factual issues involves a consideration of all relevant evidence, including the credibility of witnesses.

29 An issue arises as to the extent of the remitter which should be ordered. Counsel were asked to address submissions on the assumption that the Court might determine to allow the appeal and remit the proceeding for re-trial. In particular, counsel were asked to consider whether it was possible to remit the issue of liability only, with the judge's unchallenged findings on the quantum of damages to which Mr Chetcuti was entitled remaining undisturbed if liability was established at a re-trial. However, upon examination, it became apparent that there are a number of possible results of a new trial. For example, it is possible that Mr Chetcuti could fail in his claims based upon the tort of assault, and the resulting initial injury to his wrist caused by the fall, but could succeed in his claims based upon the tort of battery committed during the ensuing struggle with the Connex officers. On this hypothesis, Mr Chetcuti may only be entitled to damages for any aggravation to the wrist injury arising from any battery which he establishes. In all the circumstances, the whole of the proceeding must be re-tried, however inconvenient and unfortunate that result may be. It was the submission of both parties that the re-trial should be before a different judge, and I would so order. Further, both parties should have a full opportunity to re-plead their cases, including by abandoning obviously hopeless issues. This may result in the re-trial being of shorter duration than the initial trial.

[1] It involved the contention that the respondent fled for fear of being physically detained by the Connex employees.

[2] For example, Husain & Ors v O & S Holdings (Vic) Pty Ltd [2005] VSCA 269, [82]-[83].

[4] Chetcuti v Connex Trains [2007] VCC 166, [45]-[53] (further emphasis added).

[5] Barton v Armstrong [1969] 2 NSWR 451, 454-5; Rixon v Star City Pty Ltd [2001] NSWCA 265; (2001) 53 NSWLR 98, 114.

[6] Rixon v Star City Pty Ltd [2001] NSWCA 265; (2001) 53 NSWLR 98, 112-3. In this case, the threat to 'catch' and detain the plaintiff, by holding him, was a sufficient threat to satisfy this element of the tort.

[7] Rozsa v Samuels [1969] SASR 205, 207; Rixon v Star City Pty Ltd [2001] NSWCA 265; (2001) 53 NSWLR 98, 114.

[8] Rixon v Star City Pty Ltd [2001] NSWCA 265; (2001) 53 NSWLR 98, 114.

[10] Brady v Schatzel [1911] St R Qd 206, 208 (a case of criminal assault) as discussed in Francis Trindade, Peter Cane and Mark Lunney, The Law of Torts in Australia (4th ed, 2007) 53.

[11] Barton v Armstrong [1969] 2 NSWR 451, 455; R P Balkin and J L R Davis, The Law of Torts (3rd ed, 2004) 48.

[12] March v Stramare [1991] HCA 12; (1990) 171 CLR 506, 516-7; Henville v Walker [2001] HCA 52; (2001) 206 CLR 459, [100]-[103]; Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568, [55]; Travel Compensation Fund v Tambree [2005] HCA 69; (2005) 224 CLR 627, [28], [45]-[48], [57]-[60], [80]-[85].

[13] McClelland v Symons [1951] VicLawRp 21; [1951] VLR 157, 166; Rixon v Star City Pty Ltd [2001] NSWCA 265; (2001) 53 NSWLR 98, 112-4; R P Balkin and J L R Davis, The Law of Torts (3rd ed, 2004) 35-8.

[14] For example, Hunter v TAC & Anor [2005] VSCA 1, [21]-[22]; Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317, [38]; Sun Alliance Ltd v Massoud [1989] VicRp 2; [1989] VR 8, 18-19.

[15] Mr Jamal did not give evidence. The judge accepted the explanation for him not being called, and no adverse inferences were drawn against Connex for this failure.