Fontin v Katapodis; Katapodis v Fontin

High Court of Australia|1962-07-01|Before: Owen JJ, Owen J, McTiernan J, Bridge J

High Court of Australia Dixon C.J. McTiernan and Owen JJ. Fontin v Katapodis; Katapodis v Fontin [1962] HCA 63

ORDER Appeal of Fontin (No. 14 of 1962) dismissed with costs. Appeal of Katapodis (No. 15 of 1962) as against the respondents Millars' Timber & Trading Company Limited and Harris Scarfe & Sandovers Limited dismissed with costs. Appeal as against the respondent Fontin allowed with costs. Order of Supreme Court varied by increasing the amount of damages to £2,850.

In my opinion the appeal by the defendant Fontin (No. 14 of 1962) should be dismissed with costs and the appeal by the plaintiff Katapodis should be dismissed as against the defendants respondents Millars Timber & Trading Co. Limited and Harris Scarfe & Sandovers Limited with costs, and allowed as against the defendant Fontin with costs. The order appealed against should be varied by increasing the amount of damages to £2850.

I have had the advantage of reading the judgment prepared by Owen J. and agree in it. There is, however, one reservation or observation which I would make: it is in relation to the reference to Reg. v. Howe [7] . In that case we were not concerned with the question whether there were any grounds in fact for a defence of self-defence to the charge of murder. The reason is that the Crown had obtained special leave to appeal for the purpose of examining the proposition or propositions of law upon which the order of the Supreme Court was founded, not the propositions of fact or of evidence which formed the basis or groundwork for the application of these propositions of law (if correct).

These appeals arise out of an action for assault and battery. The plaintiff was Katapodis and the defendants were Fontin and his employers, Millars and Sandovers. Katapodis alleged that Fontin assaulted and beat him and that Millars and Sandovers were vicariously liable on the same cause of action. The defendants said in answer to the alleged cause of action that Katapodis first assaulted and beat Fontin and he necessarily assaulted and beat Katapodis in his own self-defence. Millars and Sandovers denied that Fontin committed the alleged assault and battery in the course of carrying out his employment as their servant. Bridge J., who was the trial judge, found that Katapodis first beat and assaulted Fontin and he thereupon assaulted and beat Katapodis, but in so doing Fontin exceeded his right of self-defence. Accordingly, he decided that Fontin was liable for the damage and loss which Katapodis suffered in the affray. The learned judge decided that Fontin did not assault and beat Katapodis in the course of Fontin's employment with Millars and Sandovers and accordingly dismissed the action as against them. The learned judge assessed the damages at £2,850 which Katapodis should recover from Fontin in respect of the personal injury he suffered and the expenses and financial loss he incurred in consequence of the assault and battery. He found that Katapodis provoked Fontin into the assault and battery he sustained and on that basis mitigated the total damages of £2,850 to the extent of £850. There was, therefore, a verdict and judgment of £2,000 in favour of Katapodis against Fontin.

The appeal by Fontin raises the question whether Bridge J. ought to have decided in his favour on the issue of self-defence; and the appeal by Katapodis raises the question whether the decision ought to have been that Millars and Sandovers were vicariously liable. Another question which is raised by Katapodis in his appeal is whether it was an error to mitigate or reduce the total damages assessed.

None of the findings of fact made at the trial is called into question. The facts which the learned judge found are as follows: Katapodis had purchased goods for cash at the store conducted by Millars and Sandovers. Fontin was a servant of this firm and worked in the glass department of the store. His principal duty was to cut glass to sizes suitable for louvres ordered by customers. He did his work at a table behind which the uncut glass was stacked. The tools which he used were a wooden T square and a small cutter operated by hand. When Katapodis purchased the goods Fontin, a fellow Greek, assisted him because Katapodis was not able to converse in English. Katapodis paid cash and took the goods away with him, but the books of the firm contained no record of the payment. A few days afterwards Katapodis was at the store and Fontin pointed him out to the assistant manager as the customer who had not paid his account. This accusation enraged Katapodis who thereupon went home, found the receipt and produced it to the assistant manager at the store. The assistant manager apologized unreservedly to Katapodis and told him that the incident was closed. Katapodis insisted on his bringing the receipt to Fontin. Fontin was working at his table, attending to a customer. Katapodis and the assistant manager stood in front of the table and the receipt was shown to Fontin. The assistant manager apologized to Katapodis and repeated his assurance that the incident was closed. Katapodis called Fontin "a bad man". As the assistant manager turned to go away Katapodis began an altercation with Fontin and made an insulting remark to him. Fontin replied to Katapodis in similar fashion. Katapodis then grabbed the T square by the end without the cross-piece and hit Fontin with it once on the arm and once on a shoulder. Katapodis had raised the T square to hit Fontin again. Fontin, thereupon, picked up an off-cut of louvre glass fifteen inches long and two to three inches wide and threw it at Katapodis' face. Katapodis dropped the T square and raised one of his hands to fend off the missile. It cut the socket of the thumb and severed the ulna nerve. Serious and permanent injury was done to the hand. The assault and battery alleged in the action was that Fontin threw the piece of glass at Katapodis and wounded him with it. It is not contested in this Court that Fontin did so. The justification pleaded in defence is that Katapodis hit Fontin with the T square and was about to hit him again. Katapodis does not here contest the finding that he did this. Bridge J. decided that Katapodis' attack on Fontin did not justify his throwing the piece of glass at Katapodis for the purpose of self-defence. It is clear that Fontin had a right to defend himself against being beaten by Katapodis. The question is whether, in the circumstances, it was reasonably necessary for him to throw the piece of glass at Katapodis in order to protect his right of personal safety. The piece of glass which he threw at Katapodis was capable of causing him serious injury. Aimed at the face it is clearly a very dangerous weapon. Apparently, Fontin realized this because he attempted to pitch it so that none of its edges would strike Katapodis. Katapodis had done only trifling harm to Fontin by hitting with the T square. Perhaps, Katapodis may have struck more severe blows if Fontin had not prevented him. But to throw the piece of glass at Katapodis as a means of self-defence was out of all reasonable proportion to the emergency confronting Fontin. No other weapon was available to Fontin but instead of throwing the piece of glass at Katapodis he could easily have moved away from him and thus have avoided further blows from the T square. Fontin had no need to stand his ground and it was not reasonably necessary for him to throw at Katapodis the cruel and cutting missile which he did throw. It was somewhat of the nature of a deadly weapon. The conclusion of Bridge J. that, in the circumstances, it was not reasonably necessary for Fontin to use it in self-defence, is right. The next question is whether Millars and Sandovers were responsible for the assault and battery committed by Fontin on Katapodis by throwing the piece of glass at him, Fontin being the servant of Millars and Sandovers. They were liable only if this trespass was committed by Fontin in the course of his service. The trespass was an unlawful act but Millars and Sandovers were nevertheless responsible if it was Fontin's mode of performing a duty which fell within the scope of his employment. The fight between Fontin and Katapodis was a sequel to the incident about the account. That incident generated the anger in Katapodis which lead to his abusing Fontin. However, the incident was then closed and what ensued cannot be held to be other than a personal quarrel. The need for Fontin to attack Katopodis by throwing the piece of glass at him did not arise from his employment. Katapodis did not, in the capacity of a customer, beat Fontin nor did Fontin, in the capacity of a servant, hit back. The fight occurred on the premises of Fontin's employers, but by throwing the piece of glass, at Katapodis he was not, in fact, serving his employers' interest or affecting to do so. In my opinion, it is not a reasonable conclusion from the evidence that Fontin was acting in the course of his employment while engaged in this altercation and affray between himself and Katapodis. The decision of Bridge J. on the question of vicarious liability is right.

Katapodis, in his appeal, calls into question the deduction referable to provocation which the learned trial judge made from the total damages he assessed for damage and loss suffered by Katapodis as a result of his being hit by the piece of glass. The part of the judgment relevant to this question is: "Doing the best I can with this somewhat nebulous evidence as to the plaintiff's loss of earnings in consequence of his injury, I find that a fair figure to cover both past loss and possible future loss would be £1,500. I thus find the plaintiff's full pecuniary loss for expenses as well as past and future lost earnings to be £1,600. In respect of his general pain and suffering and loss of amenities and enjoyment of life I find that a fair figure for compensatory damages would be a further £1,250. Normally this would result in a total verdict for the plaintiff against Fontin of £2,850. However, as I consider that Fontin, in the commission of his assault, was substantially provoked by the plaintiff, this sum should be mitigated, in my view, to £2,000". It is contended for Katapodis that it is an error to mitigate or diminish the damages as assessed even if it is accepted that Katapodis provoked Fontin, thus causing him to resort to violence. Assault and battery is actionable per se and damages are "at large", so far as the trespass itself is concerned. Such damages may be nominal or substantial, according to the circumstances in which the plaintiff's right is infringed. A defendant's conduct may be such that it is right to require him to pay exemplary or punitive damages to the plaintiff. In the present case exemplary or punitive damages were not awarded. Having regard to the conduct of Katapodis, he had no ground for claiming damages of that kind. The damages awarded are actual and compensatory damages, nothing else. It may be that for the mere trespass itself Katapodis could have been awarded nominal damages. The damages awarded are solely for personal injury and consequent economic loss. They may be called compensatory or actual damages to distinguish them from exemplary, punitive or aggravated damages. The question is whether it was right to mitigate the damages computed by the trial judge. He mitigated or reduced them by £850 for the reason that Katapodis provoked the assault that resulted in the injury and loss in respect of which he claimed damages of a compensatory character. There are conflicting views on the question whether in the case of assault and battery mitigation or reduction of damages on account of provocation by the plaintiff applies only to exemplary or punitive damages, not to compensatory or actual damages: Linford v. Lake [1] ; Fraser v. Berkeley [2] ; Pollock, Law of Torts 15th ed. (1951) p. 143; J. C. Fleming, Law of Torts, 2nd ed. (1961) p. 90; Clerk & Lindsell on Torts, 12th ed. (1961) p. 240, footnote 2; Halsbury, 3rd ed., vol. 11, p. 225; Sedgwick, Damages, 8th ed., Chap. XI; Collins v. Keenan [3] ; Evans v. Bradburn [4] ; Hartlen v. Chaddock [5] ; Griggs v. Southside Hotel & German [6] ; Miska v. Sivec [7] ; Rov v. St. Jean (noted briefly in Canadian Annual Digest Yearly Volume 1953, at p. 46); Vol. 6 C.J.S., Assault & Battery, s. 44 (e) 2a, p. 867; 16 A.L.R. 816 et seq; 63 A.L.R. 890 et seq; Restatement "Torts, Miscellaneous Torts, Defences, Remedies" , s. 921, p. 622; and Powell v. Jonker [1] . It would seem that the principle on which damages of all kinds are reduced or mitigated because of provocation in a case of assault and battery is that the plaintiff brought the trespass on himself. It is, as it were, contribution charged to him on account of his own fault. On the other hand, it is said that the law provides a remedy for any damage or loss occasioned by a wrongful act and, therefore, if provocation brings the defendant to do any act in excess of lawful self-defence which results in personal injury and economic loss to the plaintiff, he is entitled to just and adequate damages, and to mitigate or reduce actual or compensatory damages is to deprive the plaintiff pro tanto of a legal right. This would seem to place actual or compensatory damages for assault and battery on the same footing as damages for personal injury caused by negligence. I am inclined to the view that there ought to be no reduction of actual or compensatory damages for provocation in the case of assault and battery. It seems to me to be correct in principle to mitigate or reduce damages of the nature of exemplary damages if the plaintiff has provoked the assault and battery complained of. It follows that the judgment of the Supreme Court of the Northern Territory should be varied by substituting the sum of £2,850 for the sum of £2,000. I agree in the order proposed in the case of each appeal.

(1858) H. & N. 276 [ 157 E.R. 475]. 2. (1836) 7 Car. & P. 621 [173 E.R. 272]. 3. (1914) 18 D.L.R. 795. 4. (1915) 25 D.L.R. 611. 5. (1957) 11 D.L.R. 2D, 705. 6. [1946] 4 D.L.R. 73. 7. (1959) 18 D.L.R. 2D, 363. 8. [1959] IV S.A.L.R. 443. Owen J.

These two appeals are brought in an action heard by Bridge J. in the Supreme Court of the Northern Territory. The plaintiff claimed damages for assault against three defendants. Two of them, Millars Timber & Trading Company Limited and Harris Scarfe & Sandovers Limited, were trading in partnership in Darwin under the name of Millars & Sandovers and carrying on a shop there, the assistant manager being a Mr. Miles. The other, Fontin, was an employee working in the shop. He was a Greek as was the plaintiff. On 6th December 1958 the plaintiff bought some earthenware pipes at the shop through Fontin. The plaintiff in fact paid the price of the pipes to some other employee but this was not known to Fontin who believed that the pipes had been taken away without payment and reported this to Miles. A few days later the plaintiff was again in the shop and was asked by Fontin to come with him to see Miles. They went to the latter's office where Fontin said that the plaintiff was the person who had bought the pipes but had not paid for them. The shop records did not show that payment had been made and the plaintiff was asked to produce the docket which he had been given when he bought the pipes. He could not then find it but later in the day did so and returned to the shop where he showed it to Miles who apologized and explained that a mistake had been made. The plaintiff then asked Miles to show the docket to Fontin and explain to him that payment had been made. Miles took him to where Fontin was working, showed him the docket and told him that payment had been made for the pipes on the day of the purchase. Miles again apologized to the plaintiff and began to walk away. Fontin was at work cutting sheets of glass on a bench behind which he was standing. On the bench was a wooden measuring stick about four feet long with a short cross piece at one end. Close behind where Fontin was standing were a number of large sheets of glass leaning against a wall. To his right there was a stack of boxes which would have prevented him from moving out from behind the bench in that direction, and to his left another man was standing. Under the bench piles of glass were stacked. As Miles moved away from the bench the plaintiff made an insulting remark to Fontin who replied in kind. The plaintiff then picked up the measuring stick and struck Fontin several times, causing the cross piece to break. He was about to strike Fontin again when the latter picked up a piece of glass about 15 inches long and 2 or 3 inches wide, which was lying on the bench, and threw it in the direction of the plaintiff's face. The plaintiff put up his hand to ward it off and the glass cut his wrist and inflicted serious and permanent damage to it. Apart from the piece of glass, the only other object on the bench was a small glass cutting instrument a few inches long. In reply to the claim of assault, a plea of self-defence was raised and the defendant companies pleaded also that, in assaulting the plaintiff, Fontin was not acting within the scope of his employment so as to make them responsible for his acts. The learned trial judge found that, in throwing the piece of glass at the plaintiff, Fontin had used more force than was reasonably necessary to protect himself and, for this reason, rejected the plea of self-defence. He found also that the assault by Fontin was not one for which his employers should be held liable. On the appeal both these findings of fact were attacked. Counsel for Fontin contended that, in all the circumstances, his client had not exceeded the limits of self-defence and counsel for the plaintiff argued that Fontin's act in throwing the piece of glass was done in furtherance of his employers' interests and that they should therefore be held responsible. In my opinion, no good reason has been advanced for disturbing either of the findings of fact made by the learned trial judge. He considered that Fontin might have taken steps of a less drastic kind to avoid the plaintiff's attack, for example, by moving out from behind the bench to his left. It is true that the fact that a means of escape was open to a person who claims to have been defending himself against attack is not a decisive factor in considering whether he has acted reasonably (Reg. v. Howe [1] ) and the weight to be attached to such a circumstance will necessarily vary according to the circumstances. In the present case, his Honour thought that the fact that a means of escape was open was a very material matter and, in my opinion, he was right in taking that view. A further fact which, to my mind, is of importance in considering the issue of self-defence is that before the piece of glass was thrown, Fontin had called to Miles, who was, he said, "about a yard away", and that Miles was moving to his assistance when the glass was thrown.

On the question of the defendant companies' liability, his Honour was of opinion that, in throwing the piece of glass to defend himself against the plaintiff's attack, Fontin was not doing something incidental to the performance of his duties and I think that finding was correct. It is true that the altercation between the plaintiff and Fontin had its origin in the fact that the latter had earlier reported to Miles that the plaintiff had not paid for the goods which he had bought some days before, but the inference is clear that what precipitated the attack with the measuring stick was the insulting remark made to the plaintiff by Fontin and that his response to the attack that followed was not an act done in furtherance or supposed furtherance of his employers' interests.

There remains a question relating to damages. The learned trial judge found that, as a result of his injuries, the plaintiff had incurred expense for medical and hospital treatment amounting to £100. He assessed the damages for earnings lost up to the date of the trial and for reduced earning capacity in the future at £1,600 and went on to say "in respect of his general pain and suffering and loss of amenities and enjoyment of life I find that a fair figure for compensatory damages would be a further £1,250". This, as his Honour said, would normally result in a verdict against Fontin for £2,850. He was of opinion, however, that since Fontin's action in throwing the glass had been provoked by the plaintiff, that fact might be taken into account in mitigation of damages. Accordingly he reduced the amount which he otherwise would have awarded to £2,000. In this respect, I think his Honour fell into error. In an action for assault, as in many other cases of tort, the conduct and motives of the parties may be taken into account either to aggravate or mitigate damages. In a proper case the damages recoverable are not limited to compensation for the loss sustained but may include exemplary or punitive damages as, for example, where the defendant has acted in a high-handed fashion or with malice. But the rule by which the defendant in an action in which exemplary damages are recoverable is entitled to show that the plaintiff's own conduct was responsible for the commission of the tortious act and to use this fact to mitigate damages has no application to damages awarded by way of compensation. It operates only to prevent the award of exemplary damages or to reduce the amount of such damages which, but for the provocation, would have been awarded. The subject is discussed at length in Chap. XI of Sedgwick on Damages 8th ed. In s. 383 of that work, the learned author says "Since the cause for inflicting exemplary damages is a malicious intent on the part of the defendant, and the amount is regulated according to the degree of wrong, all circumstances bearing on the defendant's intent may be shown to the jury, to be considered by them. All circumstances which negative the existence of malice, or show the malice to have been but little, may be shown to mitigate the damages". And, in s. 384, he says "The existence of provocation, though it may not be a defence, will prevent the allowance of exemplary damages". To the same effect is the statement in Halsbury's Laws of England, 3rd ed. vol. 11 p. 224 that "a plaintiff, however, who has provoked the defendant's conduct by his own, will not be entitled to exemplary damages". We were referred, however, to the case of Griggs v. Southside Hotel Ltd. [1] which, it was submitted, was an authority for the proposition that compensatory damages may be reduced where the defendant's act giving rise to the cause of action is provoked by the plaintiff's conduct. The report does not make it clear whether or not the learned trial judge in that case reduced the amount of the compensatory damages which he would otherwise have awarded or merely treated the plaintiff's actions as justifying a refusal to grant exemplary damages. If he took the former course, I think, with respect, that he was wrong.

In my opinion, the appeal by the defendant Fontin should be dismissed and that of the plaintiff should be allowed to the extent of increasing the damages awarded to him to £2,850.

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Judgment (13 paragraphs)