3 Judgment and orders of Court of Requests dated 25 March 1987 restored.

1 This is an appeal from a decision by a judge allowing an appeal against a judgment by a Commissioner of a Court of Requests in favour of the appellant. During the hearing leave to appeal was granted upon the application of the appellant. It may be that the appellant did not require leave to appeal but no purpose would be served by exploring that question now.

2 The facts and the course of the proceedings are set out in the reasons for judgment of the other members of the court.

3 The learned judge held that the Commissioner's judgment "was based upon correct legal criteria" and, apart from one matter which his Honour did not regard as significant, he was satisfied that the Commissioner's view of the primary facts was correct. The narrow issue before his Honour and this court was expressed by him in these terms:

"The real question for me to consider is whether I am prepared to disagree with his conclusion that the force used by the (appellant) to repel the (respondent's) objectionable behaviour was no more than was reasonably necessary."

4 The determination of that question involves the making of a judgment which takes into account all the circumstances of the situation in which the appellant found himself. In making that judgment it must be recognised that the circumstances which entitle a person to act in self defence are not conducive to the making of a cool considered assessment of the amount of force which is appropriate particularly when there has been provocation and that therefore it is unrealistic to weigh such conduct on "golden scales" per Richards J in Salor v Klingbiel [1945] SASR 171 at 172. Further, as Lord Morris said when delivering the judgments of the members of the Privy Council in Palmer v R [1970] UKPC 2; [1971] AC 814 at p832:

"If there has been attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken."

In Zecevic v DPP [1987] HCA 26; (1987) 162 CLR 645 the High Court approved that decision and that passage was cited with approval by Mason CJ at p650. Although those cases were concerned with the criminal law, that particular passage is equally applicable to cases in which self defence is pleaded as a defence to a civil action. Similarly in Clerk & Lindsell on Torts 15th ed, the following passage appears at p 294:

"It is lawful for one man to use force towards another in the defence of his own person, but this force must not transgress the reasonable limits of the occasion, what is reasonable force being a question of fact in each case. Nor does the mere assumption of an attitude of defence by one party without actual physical contact with his opponent justify the other in assaulting him. Moriarty v Brooks [1834] EngR 1141; (1834) 6 Car & P 684; contra in case of attack, Stephens v Myers (1830) 4 Car & P 349. Where, however, an assault actually takes place the assailed person is not bound to stand on a passive defence, for it is a reasonable means of repelling an attack to attack in return. Nor does the law require that a man when labouring under a natural feeling of resentment consequent on gross provocation should very nicely measure the weight of his blows."

5 In this case I recognise that different minds could well come to different but defensible conclusions about whether, in all the circumstances, the force used by the appellant exceeded that which was reasonably necessary. But after some initial hesitation I have come to the conclusion that it did not. The learned Commissioner found that the appellant's blow was a "reflexive response" but even if it was to some extent a calculated response it would have been quite reasonable for the appellant to have concluded that in view of the respondent's persistence in his conduct notwithstanding the appellant's attempts to deter him, nothing short of a blow would have been sufficient to protect him from a repetition of that conduct. In contrast say to a response with a weapon, the striking of a blow of this kind could not be characterised as inherently inappropriate or excessive and the blow was not repeated. As it turned out the respondent sustained injuries as a result of that blow but it is not suggested that the appellant intended to inflict those injuries and the mere fact that the respondent sustained them is not sufficient by itself to demonstrate that the appellant's action went beyond the bounds of reasonable self defence.

6 I would allow the appeal and set aside the orders made by Wright J

7 This is an appeal from the decision of a judge, made on appeal from a judgment of the Court of Requests given under the Local Courts Act 1896. The appeal in the Court below was one to which s123 of the Local Courts Act 1896 applied, and it was submitted that leave of the Full Court is required under s123(4) of the Local Courts Act to appeal from his Honour's decision. That is not so. The statutory position is that by Act 7 Geo. VI, No. 37, subss(3) and (4) were added to s123 of that Act. These subsections provided:-

"(3) Where the amount claimed in action, or the value of the goods or property taken in execution, does not exceed 50 pounds, an appeal under this section shall be allowed only on the ground that -

(a) the determination or direction of the Court was erroneous in point of law; or

(4) Upon any such appeal the decision of the judge hearing the same shall be final and conclusive unless the Full Court or a judge on application by either party grants leave for an appeal to the Full Court."

8 By Act No 35 of 1965, s26, the words "50 pounds" were deleted from s123(3), and substituted therefor were the words, "such sum as is specified in relation thereto under subsection (3A) of this section". Subsection (3A) was thereupon inserted, which read:-

"(3A) The following sums are specified for the purposes of subsection (3) of this section, namely:-

(a) in the case of an action for a debt or liquidated sum, 375 pounds; and

9 When the jurisdiction of the Court of Requests was increased to $5,000 (when the court is held before a Commissioner who is a practitioner), which amendment was effected by Act No 79 of 1983, by that Act s123(3) was further amended by omitting the words "such sum as is specified in relation thereto under subsection (3A)", and substituting therefor "the sum of $1,000". In addition, s123 was amended by omitting subs(3A). The resulting position is, therefore, that s123 now has no subs(3A), which made separate provisions requiring leave to appeal from a judge's decision, in the cases of an action for a debt or liquidated sum, and "any other case", and we are left with s123(4) which applies only to cases where the amount claimed in action, or the value of the goods or property taken in execution, does not exceed $1,000.

10 In the present matter, unspecified damages were claimed in the plaint issued in the Court of Requests, and Wright J on appeal gave judgment in favour of the respondent for $3,268.96. Therefore no leave to appeal from the judge's decision is required from the Full Court.

11 The law falls to be applied in simple human terms. The parties were both underground miners employed by the Electrolytic Zinc Company at Rosebery. Sometimes they worked on the same shift. They are well known to one another but are not friends. The appellant is a huge man, weighing about 130 kilograms. The learned Commissioner of the Court of Requests, Mr Chen, who heard the original case, in which conflicting accounts were given by the parties, described the appellant as a mild, sensitive man. The respondent weighs about 83 kilograms, and so is quite a big man also.

12 The respondent had been baiting the appellant for some time, by making comments about his personal appearance, throwing liquid soap over him at the shower and flicking him in the stomach with a towel when he was getting the soap out of his eyes, making comments about the size of his penis and trying to touch his penis on a number of occasions. On the night in question, both men were present at a farewell function in the RSL Club at Rosebery, and were in the bar. The bar was quite crowded. The Commissioner accepted the appellant's account of what happened. When the appellant passed the respondent on his way to the toilet, the respondent thrust his hand between the appellant's legs from the rear and attempted to grasp the appellant's scrotum. The appellant pushed the respondent with his hand and told him to "piss off and leave me alone". The respondent stumbled sideways and the appellant went on.

13 On returning from the toilet, the appellant went to the main bar and was leaning against it talking to a friend. He felt a push on the shoulder and turning around saw that it was the respondent trying to say something. The appellant again told him to "piss off", felt a further tap on the shoulder a few minutes later, and repeated his injunction to the respondent to leave him alone. The respondent did not do so. He stepped around behind the appellant and again grasped the appellant's scrotum in the same manner as before. The applicant thereupon turned and struck the respondent one blow in the mouth with his left fist. The respondent staggered back and sat on the floor, and found in due course that two front teeth had been knocked out or damaged, but in any event required replacing with a denture.

14 The respondent sued the appellant for damages for assault, the appellant counterclaimed, and the matter went to the Court of Requests. The learned Commissioner found for the appellant, holding that he was acting in justified self defence, and had not used excessive or unreasonable force in defending himself. The respondent's claim was dismissed by the Commissioner, who awarded a small sum to the appellant. The respondent appealed to the Supreme Court. In the court below, Wright J upheld the respondent's appeal, holding that the Commissioner was wrong in failing to find that the appellant, although entitled to defend himself, had used excessive and unreasonable force in doing so. That judgment is now under appeal to this Court.

15 With respect, I take the view that the learned Commissioner was right in his conclusion. The appellant did not use excessive force in defending himself. He had been baited and taunted over a period of time by the respondent in ways which, unless he made an appropriate physical response eventually, would be sure to earn him contempt from his fellow miners. The previous irritating assaults upon him had been done in the presence of one or more other employees of the company, because two of them gave evidence that they saw such incidents occurring. On the night in question, the respondent chose to continue his taunting conduct, but this time in a bar room in which a number of others were present, who presumably knew both men. In any event, the appellant's size and other characteristics would make him a person whose presence would be noticed. The essence of the Commissioner's finding was "that the (respondent) tormented the (appellant) over a lengthy period and on the night in question the second instance of this conduct drew what amounted to a reflex response".

16 The learned judge accepted the Commissioner's primary findings of fact, and was right to do so. His Honour, however, in making a qualitative judgment upon the conduct of the two men, and in particular upon the appellant's conduct in defending himself, reached a different conclusion as to whether the blow struck by the appellant amounted to excessive and unreasonable force in self defence. He upheld the appeal and ordered that the appellant should pay this substantial sum in damages. His Honour was entitled to reach a different conclusion upon the matter of excessive force in self-defence, within the principles set out in Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, and this Court too is entitled to form and act upon its own view upon that question. In my opinion, the appellant's response was not excessive, but in all the circumstances justified and reasonable. The relevant circumstances include the continuing nature of the respondent's taunting conduct, which involved assaults relatively minor in physical terms but nevertheless humiliating and invasive of the appellant's privacy, and the state of mind likely to have been aroused in a mild and sensitive man by such assaults, especially when performed in the presence of other miners and workmates.

17 Obviously, as the Commissioner in effect found, the appellant was driven beyond endurance and responded with a single reflexive blow. The respondent was pursuing his conduct in such a way as to indicate that it was likely to continue from time to time unless there was at some stage a physical response. He received the kind of response which he knew or ought to have known he would be likely to receive from most other men in the bar if he acted in that way towards any of them, but of course he chose his target carefully, assuming that the appellant would not defend himself physically. In the event, he misjudged his man. As the Privy Council said in Palmer v R. [1970] UKPC 2; (1871) 55 Cr App R 223, at p242:-

"If there has been attack so that defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary, that would be most potent evidence that only reasonable defensive action had been taken."

I think that passage applies aptly to the present circumstances, which admittedly are unusual. In my view the appellant's reflexive action in defending himself was appropriate and justified. The appeal should succeed. The Commissioner's judgment should be restored.

18 The plaintiff (respondent) sued the defendant (appellant) in the Court of Requests for damages for trespass alleging an actual battery, to wit, a punch to the mouth. The defendant did not deny the battery but pleaded lawful self defence, alleging, although not in terms, an entitlement to batter (i.e. trespass) by way of defence against actual trespass or, perhaps more accurately, an implied threat of trespass demonstrated by a series of actual trespasses.

19 The learned Commissioner found that the battery was an exercise in self defence and "was no more than was reasonably necessary". Accordingly he gave judgment for the appellant on the claim and the counter claim.

20 Pursuant to s123 of the Local Courts Act 1896, the plaintiff appealed to a judge of the Supreme Court. The appeal was heard by Wright J, who upheld the appeal and directed judgment be entered for the plaintiff in the sum of $3,268.96. The defendant applied to this court for leave to appeal. For reasons which appear in the judgment of Neasey J, it was not necessary to grant leave. Somewhere along the way the issue of the counter claim seems to have disappeared.

21 The facts found by the learned Commissioner were accepted by Wright J, and no significant reason appears for this Court to do otherwise. Those facts appear from this extract from the learned Commissioner's Reasons for Judgment:

"'The defendant's version of the affair with the exception of the actual punch was very different from that of the plaintiff. His evidence covered a period commencing some months prior to November 1985. He referred to several incidents which occurred when he was showering in the ablutions block coming off shift. He claimed that the plaintiff was in the habit of making comments concerning the defendant's physical appearance.

'It needs to be noted that the defendant is physically a very striking person. He can best be described as a huge man. Judging for myself I would estimate him to be close to two metres in height, weighing about 130 kilograms. He is a heavily bearded black haired Irish man speaking in a typical Irish brogue.

'Apart from making remarks concerning the size of the defendant's penis the defendant asserts that the plaintiff threw liquid soap over him and while he was getting this out of his eyes flicked him in the stomach area with a towel and grabbed him by the testes or tried to touch his penis on a number of occasions.

'On the night in question the defendant entered the Rosebery RSL Clubrooms and sat at a table in the lounge drinking with several workmates. The plaintiff was in the area. The defendant had cause to go to the toilet and on his way he passed the plaintiff. As he went past the plaintiff thrust his hand between the defendant's legs from the rear and grasped the defendant's scrotum. (This finding was inaccurate, it should have been "attempted to grasp the defendant's scrotum".)

'At that the defendant pushed the plaintiff with his left hand at the same time telling him to "piss off and leave me alone". The plaintiff stumbled sideways and the defendant went about his business. On returning from the toilet the defendant went to the main bar against which he leant while talking to a friend. He felt a push to the left shoulder and upon turning around saw that it was the plaintiff who was trying to say something. The defendant once again told him to "piss off".

'The plaintiff left but a few minutes later the defendant once again felt a tap on the shoulder, noticed it was the plaintiff and told his companion who knew the plaintiff to tell him to "piss off and leave me alone". This the plaintiff did not do. Instead he stepped around behind the defendant and once again grasped the defendant's scrotum in the same manner as before. The defendant thereupon turned around and hit the plaintiff in the mouth with his left fist. The plaintiff staggered back and sat on the floor.'" (It should be added that the defendant left the room shortly thereafter).

22 In the civil law, provocation by lawful means does not justify a battering. But a provocative act or gesture may also have the colour of attack or threatened attack. If it does, it may justify a battery by way of self defence against the attack or threatened attack. There is no doubt in my mind that the facts set out above disclose, as well as provocative behaviour, repeated unlawful batteries on the part of the plaintiff, from which the plaintiff would not desist when told, and which a push and curt words failed to deter. There was a clear, implied threat that this unlawful conduct would continue unless it was more actively discouraged. The defendant took the next step. He hit the plaintiff and then left the room. I agree with the learned Commissioner it was a reasonable act of self defence.

23 I have not reached this conclusion without anxious consideration of the thoughtful and careful judgment of Wright J But in the end I think that his Honour may have given too much weight to his view that the plaintiff intended to teach the defendant a lesson. Perhaps he did, but that is often the purpose of limited self defence - to make it plain that any continuation of the attack will have unpleasant consequences. And although as his Honour said, a blow to the head can be dangerous, the frequency of any real injury is very slight in a form of social conduct which has been popular for centuries. I would allow the appeal.