Pi v Zhou

The background

1. The defendants purchased the Property in 2003. The house had four bedrooms. The detached flat had one bedroom. There was also a separate kitchen and bathroom behind the house which could be used by the occupant of the flat. The defendants, who at that time lived in the house, rented out the flat and at least one bedroom in their house. The tenants of the house and the flat shared the outside kitchen and bathroom.

The lease agreement

1. When the flat became vacant in 2010 Mr Zhou placed an advertisement in the Chinese Daily. In June 2010 Mr Pi came to look at the flat and spoke to Mr Zhou, in Mandarin. Mr Pi told Mr Zhou that he was unemployed, had been "taking a break for around two years", and lived on social security benefits. Mr Zhou explained that the rent was $100 per week and that he would have to share the outside kitchen and bathroom with the tenant who rented a room inside the house. Mr Pi said that he wanted to rent the flat for three months. Mr Zhou agreed to the three month term and said that, thereafter, either party would be entitled to give the other two weeks' notice. Mr Pi agreed to these terms and, on about 14 June 2010, he moved in. He paid $100 for the first week's rent, as well as $200 for a two-week bond. Mr Pi asked Mr Zhou if he could store building materials on the Property. Mr Zhou agreed.
2. In about September 2010 Dr Lin, Mr Pi's general practitioner, referred Mr Pi to Mei Ling, a psychologist, whom he consulted for the first time on 15 September 2010 because he was "unhappy". I do not accept that the referral was related to any act or omission either of Mr Zhou or his wife.
3. In the second half of 2010, Ms Gu was a tenant in the house on the Property. In about November 2010 she complained to Mr Zhou that Mr Pi had touched her bra. Mr Zhou reproached Mr Pi and asked him to behave himself, which he said he would do. Ms Gu complained again about a week later. Mr Zhou approached Mr Pi and told him that he would call the police if he did not behave himself. In December 2010 Ms Gu told Mr Zhou that she was going to move out because of Mr Pi's behaviour which she regarded as insulting and rude. She moved out in late December 2010.
4. On 27 December 2010 Mr Pi paid $200 rent, which covered the period to 9 January 2011.
5. Between 5 and 12 January 2011 various text messages passed between Mr Pi and Mr Zhou, the content of which showed the increasing friction between them. On 5 January 2011 and 6 January 2011 Mr Pi sent a text message in which he complained that there was no internet reception and claimed that the rent should be reduced. On 6 January 2011 Mr Pi sent two text messages in which he complained that a caged bird had been hung in the vicinity of the detached kitchen area and asked for it to be removed.

The termination of the lease

1. On 9 January 2011, Mr Zhou told Mr Pi that he was no longer welcome to occupy the flat and gave him two weeks' notice. Mr Pi was upset and threatened not to pay rent for the remaining two weeks and to "cause trouble to the house". He also made threats of violence to both Mr Zhou and Mrs Zhao.
2. On 10 January 2011 Mr Zhou sent text messages to Mr Pi demanding that the rent be paid. Later that day, at 7.55pm, Mr Zhou sent a further text message saying that he still had to pay the last two weeks' rent even though he was going to move out on 23 January 2011. Mr Zhou also said in the text that the bond would be returned after he had cleaned up the flat. At 8.39pm Mr Pi complained by text message that the rental bond had not been paid to the Consumer Trader and Tenancy Tribunal (CTTT). Mr Zhao reiterated his claim for rent. Mr Pi, in turn, responded with an accusation that Mr Zhao had "frequent made much troubles with tenants and me" and accused him of damaging his health. Mr Pi also referred in terms which are unclear to "emergency into hospital on date 7th-8th Jan 2011".
3. In a text message sent to Mr Zhou at 5.43am on 11 January 2011, Mr Pi reiterated his complaint about the lack of internet service and claimed to be entitled to a deduction from the rent.

The events of 12 January 2011

1. On 12 January 2011, at about 7pm, Mr Zhou, who worked as a taxi driver, was walking from the house across the yard towards his taxi, which was parked in the street, in order to commence his night shift. Mr Pi, who was brandishing an electric drill, approached him and threatened to strike him with the drill. Mr Zhou stepped backwards to avoid being struck. He tried to get away from Mr Pi. There was an altercation between them as a result of which each man struck the other. During the altercation Mr Pi grabbed Mr Zhou's left hand and bit into the area near the thumb. Mr Zhou called for help.
2. Mrs Zhao came out of the house when she heard the commotion. She called out to Mr Pi to stop. Mrs Zhao saw Mr Pi hit Mr Zhou on the back with both his hands. She screamed for help and asked passersby to call the police. I infer that Mrs Zhao, a native Mandarin speaker, may have preferred a bystander to ring the police rather than make the call herself. During the altercation she took photographs of the two men with her mobile phone. The photographs in evidence, although somewhat blurred, show Mr Pi as the aggressor and that Mr Zhou was trying to get away. I reject Mr Pi's evidence that the photographs were "fake".
3. Eventually Mr Zhou got away from Mr Pi and called the police. A bystander stood between Mr Zhou and Mr Pi to prevent any further physical contact between them. The police arrived not long afterwards. They arrested Mr Pi and charged him with assault occasioning actual bodily harm.
4. An ambulance came to take Mr Pi to Canterbury Hospital. The ambulance records show that the ambulance was called at 7.52pm and arrived at the scene at 8.03pm. It departed the scene at 8.33pm. Mr Pi undertook triage at the hospital at 8.55pm.
5. The history recorded in the ambulance records is as follows: "O/A [on arrival] Police on scene. Pt [patient, Mr Pi] alleged to have been involved in incident with another male. Pt alleged to have chased other male with drill and bitten other male on hand. Pt allegedly punched in face by other male. O/E [on examination] Pt alert on AO's [ambulance officer's] arrival. Pt had periods not answering AO's questions only regarding to pain. Pt also has apparent language difficulties. Pt GCS [Glasgow Coma Score] 14, well [illegible] with swelling to mouth and bleeding from mouth and damage to teeth. Pt no apparent LOC [loss of consciousness]. Pt c/o [complains of] central neck pain. Collar applied. Pt c/o grazes to right and left knees. Pt haemodynamically stable. Pt Tx [transfer] for further Rx/ Assessment. Unable to obtain pain [illegible] - language difficulty/ assessment difficulty."
6. The diagram in the ambulance notes depicts abrasions to both the plaintiff's knees and swelling and tenderness to his mouth area.
7. Mr Pi gave evidence that, when he returned home in the early hours of 13 January 2011 after he had been discharged from hospital, his daughter took photographs of his mouth and bruises to his back. His daughter was not called to give evidence. I do not accept Mr Pi's evidence that the photographs were taken at that time.
8. Another ambulance came to the Property and took Mr Zhou to St George hospital where the injury to his hand, which required seven stitches, was treated. After Mr Zhou was discharged later that evening, he and his wife went to St George Police Station to provide statements about what had occurred. They arrived at the police station at about 2.40am on 13 January 2011.

The AVO against Mr Pi

1. Mr Zhou applied for an Apprehended Violence Order (AVO) against Mr Pi. The grounds set out in the application for the AVO recorded: "Police hold fears for the PINOP [person in need of protection] due to the unprovoked nature of the assault and the willingness of the defendant [Mr Pi] to use an implement [the drill] to attack the PINOP and by biting him."
2. Magistrate Baker made the AVO. The police served the order on Mr Pi, who was still at Canterbury Hospital.

The police statements

1. I accept the truth of what Mr Zhou said in his statement to police (which is reflected in the narrative set out above) in which he said as follows: "3. …For the past three (3) weeks I have been having problems with Mr Pi in relation to him not paying his rent which is one hundred ($100) dollars a week. On Sunday 9th of January 2011 Mr Pi threatened my wife and I. He took out his phone and took photos of my me [sic] and my wife and he said "I will send these photo's to someone who will kill you". I didn't report this to the police because I wanted to keep being friendly to him I didn't want any problems. 4. About 7.15pm on Wednesday 12th of January 2011, I left my house through the front door and walked to my taxi which was parked outside the front of my house. Mr Pi started approaching he was about two (2) cars lengths away from my taxi. He said "You bastard I will kill you" I turned around and I said "Don't be rude to me. You owe me rent and you need to behave yourself if you want to live here". 5 At the time he was speaking to me he had his right hand hidden behind his back and all of a sudden his right hand has risen up and he has tired [sic] to hit me in the head with a power drill. 6. I moved and he missed but he has done it a second time and hit me in the left side of the chest with the drill. 7. I felt very scared I thought he was going to kill me. I pushed his right hand away and the drill has fallen to the ground and I was tiring [sic] to protect myself by covering my face with my hands. He then grabbed my left forearm and pulled it towards his mouth and bit the webbing between my thumb and first finger. He has bitten very hard causing a very deep wound I felt immediate pain I kept trying to pull away but he just kept bitting [sic] me. I started to call for help and a man I don't know has come and stopped Mr Pi from bitting [sic] me. 8. I managed to get my hand free from his mouth. Then I called the police and I took the drill and put it on the ground. Mr Pi has tired [sic] to get the drill off the ground to hide it. I tired [sic] to stop him at that time police came and made him sit down of the ground. I then told police what happened and I was taken to St George Hospital by Ambulance where I received sever (7) stitches in my left hand. 9. I am very scared that he may return to my home and attack me or my wife. I am worried that I may have permanent damage to my hand."
2. I also accept the truth of what Mrs Zhao said in her statement to police, which is reflected in the narrative set out above. She said as follows: "3. I am currently living at [address] Lakemba with my husband Cheng ZHOU. We have been living there for three years. We rent a flat that is in our backyard to Guang Hua Pi. Guang has been living in the back flat for about six months. Over the last month or so we have been having problems with Guang over the payment of his rent. My husband told Guang he had three weeks to move out. 4. About 7pm on Wednesday 12 January 2011 my husband left the house to go to work. My husband is a taxi driver. I said goodbye to my husband and sit down to watch television. A few minutes later I heard yelling at the front of my house. I went to the front door to see what was happening. I saw my husband and Guang in the driveway of our house. Guang had a drill in his hand and he was pointing it at my husband's head. My husband was standing with his hands out in front of his face waving them around trying to protect himself. When my husband was waving his hands he hit Guang in the face a few times. I scream out: "Help me call police." My husband pushed the drill out of his hand. My husband tried to get away but Guang followed him. I saw Guang hit my husband on the back with both his hands."
3. Mr Pi tendered a statement of Constable Stone. No objection was taken on behalf of the defendants to this statement. I accept what Constable Stone said in the statement, as follows: "4. I took the victim [Mr Zhou] to the front porch area of the house and spoke to him and his wife. The victim's wife is Christine ZHAO. At this time several other police arrived at the location. ZHAO said "He want to kill my husband. He have drill and put it to my husband head. He want to kill him." I went back outside to where the accused and Constable REY were standing. The accused was pointing towards the victim and yelling "I kill you." The accused then sat down. A short time later an ambulance arrived at the location."
4. I reject Mr Pi's version of events, which is inconsistent with my findings set out above. Mr Pi's version was that he was trying to move out of the flat on 12 January 2011 when Mr Zhou attacked him. Mr Pi maintained that he only struck Mr Zhou because he needed to defend himself.

The aftermath

1. On 13 January 2011 Mr Pi sought treatment at the Sydney Dental Hospital. He reported that he had been hit on the face by his landlord on the previous evening. Dr Burleigh, who examined him, recorded that there was no evident bruising, but there was a swollen upper lip and clotted blood on his lips. Some of his teeth had been displaced and a laceration of his gum was noted. The affected teeth were repositioned. Mr Pi returned for review on 20 January 2011 and also on 27 January 2011. Because of continuing problems, Mr Pi had root canal treatment which was conducted under local anaesthesia. Dr Burleigh, recorded her conclusion as follows: "In our opinion, prognosis for the injured teeth is very poor and patient may require removal of all four (4) front teeth. In that case, he will require either crowns and bridges or implants to replace his injured teeth - for aesthetic and functional reasons. The cost of this treatment, future maintenance and probable replacement (must be considered) may be up to $50,000.00."
2. A few days after 12 January 2011, Mr Pi's wife and some friends returned to the Property to collect his belongings from the flat.

The criminal charge against Mr Pi

1. As referred to above, Mr Pi was charged with assault occasioning actual bodily harm as a result of the incident. The summary proceedings commenced in the Burwood Local Court before Pierce LCM on 1 September 2011. As the proceedings did not conclude that day, the matter was stood over until 12 December 2011, and again until 13 March 2012. At the conclusion of the hearing Mr Pi applied for Pierce LCM to disqualify himself. Magistrate Pierce acceded to the plaintiff's application. The matter was re-listed for hearing on 17 September 2012. It came before Madgwick LCM, who transferred it to Stone LCM, by whom it was ultimately heard. However, by agreement between the police prosecutor, and Mr Jawas, who appeared for Mr Pi, the oral evidence was not given again and the matter was determined solely by reference to the transcript. The legal representatives agreed that there would be no submissions but that they would simply rely on the transcript. At the conclusion of the hearing, Magistrate Stone dismissed the charge on the basis that his Honour was not satisfied beyond reasonable doubt that the police prosecutor had excluded self defence.

The CTTT proceedings

1. In September 2011 Mr Pi commenced proceedings against Mr Zhou in the CTTT. The matter was listed in the CTTT on several occasions. I accept Mr Zhou's evidence that Mr Pi attended the CTTT on each occasion and appeared to be walking unassisted and without difficulty. On 13 September 2011, the CTTT made an order (and subsequently, on 29 September 2011, issued a certificate to that effect under s 51 of the Consumer Trader and Tenancy Act 2001 (NSW)) that Mr Zhou was to pay Mr Pi the sum of $157.14 on or before 27 September 2011. The evidence did not reveal the reasons for the order, save that it was said that Mr Zhou did not lodge the bond with the Rental Bond Services until 2011. There was reference to the sum of $157.14 being for "refund of rent" but there was no explanation as to how this was calculated. Mr Zhou's evidence was that, in the CTTT, Mr Pi alleged that he had given money for outstanding rent to Mrs Zhao. Mr Zhou was not willing to subject Mrs Zhao to Mr Pi's questioning in the CTTT and, accordingly, this evidence was not refuted. Although I note the result of the CTTT proceedings, I do not regard it as affecting my task of assessing the evidence before me in the present proceedings.

Civil proceedings in the Local Court

1. In 2012 Mr Pi commenced proceedings in the Local Court against Mr Zhou claiming damages in respect of a washing machine. Mr Zhou told the Magistrate that Mr Pi had already claimed damages in respect of the washing machine in the CTTT. On that basis the Magistrate dismissed the claim.
2. In 2012 the defendants moved away from the Property and now live in a flat in Hurstville. I accept their evidence that they moved away from the Property because they were fearful of Mr Pi.

Claim for breach of covenant of quiet enjoyment and alleged forced eviction

1. I do not accept Mr Pi's evidence that Mr Zhou entered his room without his consent or that he hung a bird cage outside his kitchen in such a way as to interfere with his rights as an occupant. Nor am I satisfied that there was any issue about the internet for which Mr Zhou was responsible. I accept Mr Zhou's evidence that he did not enter Mr Pi's room.
2. I do not accept Mr Pi's version of what occurred on 12 January 2011. I accept that Mr Zhou gave him two weeks' notice on 9 January 2011 and that he was, accordingly, obliged to leave on 23 January 2011. I do not accept Mr Pi's evidence that Mr Zhou told him, on 12 January 2011, that he had to leave on that day.
3. Mr Pi has failed to discharge the onus of proving this aspect of his claim.

Claim for damages for assault

1. That Mr Pi was acquitted of assault occasioning actual bodily harm is no bar to a finding that he was the instigator and perpetrator of the assault or that he was not acting in self defence: Helton v Allen (1940) 63 CLR 691. The determination of who instigated an assault, particularly one as brutal as the one in the present case, requires careful consideration of the evidence in light of the gravity of the allegation: s 140(2) of the Evidence Act 1995 (NSW). As Starke J said in Helton v Allen at 701 (after referring to Briginshaw v Briginshaw (1938) 60 CLR 336): "Hence where the matter to be proved is a grave fraud or a crime, the tribunal [judicial tribunal in a civil case] ought not to be satisfied that it has been established unless the preponderance of evidence is so substantial as to establish it clearly."
2. It is enough, in the circumstances of the present case, to find that I am not satisfied, on the balance of probabilities, that Mr Zhou was acting other than in self defence when he came into physical contact with Mr Pi on 12 January 2011. However, I note for completeness that the evidence is sufficient to satisfy me that Mr Pi himself was the aggressor and that Mr Zhou acted in self defence.
3. I accept that Mr Pi suffered some injuries as a result of the altercation with Mr Zhou on 12 January 2011. He probably damaged his mouth and teeth when Mr Zhou resisted his attempts to bite his hand, and when he actually bit his hand. I am satisfied, too, that he suffered abrasions to both of his knees and bruising to his mouth as a result of the conflict on 12 January 2011, as recorded in the ambulance notes. Aside from those injuries recorded in the ambulance notes, or the injuries to his mouth recorded by Dr Burleigh, I do not accept that Mr Pi suffered any injuries as a result of the physical contact with Mr Zhou on 12 January 2011. To the extent to which photographs taken after the event depict blood around Mr Pi's mouth I am not satisfied that the blood was Mr Pi's own blood, since it may well have been Mr Zhou's blood which was shed as a result of Mr Pi biting his hand.
4. As referred to above, I accept that Mr Pi suffered some physical injuries in the course of the altercation on 12 January 2011. However, I am not satisfied, in respect of any such injury, that it was inflicted by Mr Zhou other than in self defence for the unprovoked attack on him which Mr Pi had initiated. I am not satisfied that Mrs Zhao took part in the attack at all or that there was any physical contact between her and Mr Pi. She was merely a distressed witness to an assault on her husband.
5. I do not consider that Mr Pi has established any liability on the part of the defendants for assault. However, for completeness, I shall address causation and damages.
6. Mr Pi tendered several documents relating to his medical condition in which he sought to attribute a large number of illnesses, ailments and medical conditions, including depression, haemorrhoids, insomnia, migraine, benign prostatic hypertrophy and chronic airways limitation and cervical spondylosis to the altercation on 12 January 2011. The evidence that postulates a causal connection between these conditions and the assault is based on a history of the assault (and an absence of any other matter that might have caused the conditions) that I do not accept.
7. For example, when Mr Pi saw Dr Conrad for the purposes of these proceedings on 16 February 2015 for the first time, Dr Conrad noted (in a medicolegal report of the same date) the following presenting symptoms: "Mr Pi continues to have considerable depression and anxiety. He has difficulty with his memory and he has some cognitive impairment. These were amply displayed during the interview where Mr Pi appeared profoundly depressed and had great difficulty answering questions, even with the help of an interpreter. He has headaches, tinnitus, problems with his teeth and pain in his neck and pain in his back. He finds it difficult to do a lot of standing, walking and has to walk with the aid of a mechanical walker. . . . He says that he is living in shared accommodation but he would not give me any details as he was frightened of being attacked."
8. Mr Pi has made claims under various heads of damage by reason of the assault, including claims for medical expenses and economic loss. In light of my findings above, I am not satisfied that the need for medication, physical support or care has resulted from the assault on 12 January 2011. Mr Pi tendered documents which show that, since at least 2008 he has obtained prescribed medication for several kinds of drugs. The evidence does not reveal the purpose of the various medications prescribed.
9. Mr Pi tendered material which shows that he held an authorised bus licence. He has also adduced evidence of ceramic art work he has created and of his drawings and paintings, as well as evidence of the regard in which he was held by at least one gallery proprietor (of the Silk Road Gallery in Kingston, Australian Capital Territory). The evidence adduced by Mr Pi also included his illustrations of the configuration of the house and the flat on the Property, as well as what he said occurred during the conflict on 12 January 2011. This evidence demonstrates his competence as an illustrator. I am not satisfied that any act or omission as alleged against either Mr Zhou or Mrs Zhao has any bearing on whether Mr Pi can engage in any occupation, whether remunerative or otherwise.

Claim for damages against Mr Zhou for conversion of a washing machine.

1. It is generally an abuse of process to make a claim in one court where the same, or a similar, claim has been dismissed in the same, or another, court or tribunal. There is some evidence, referred to above, that Mr Pi commenced proceedings in the Local Court which were dismissed on the ground Mr Pi had already claimed damages in respect of the washing machine in the CTTT. Mr Pi denied that he had made any claim concerning the washing machine in the CTTT. The evidence does not permit me to determine whether Mr Zhou's understanding of the ambit of Mr Pi's claim in the CTTT was correct; or, indeed, what was claimed in the Local Court.
2. However, it is not necessary to decide whether the same claim has already been dismissed elsewhere as Mr Pi has not adduced evidence to establish the factual elements of this claim, which is, accordingly, rejected.

Mr Pi

1. I found Mr Pi to be a very distracted and intense witness. He was utterly convinced that his conduct was at all times justified and that he was not in any way responsible for the conflict with Mr Zhou and his wife. He was adamant that Mr Zhou had instigated the attack. His evidence was, notwithstanding the skill of his interpreter, at times hard to follow. I formed the view that his grasp on reality was not particularly strong.
2. His evidence was that the attack lasted for about 40 minutes and that both Mr Zhou and Mrs Zhao had kicked him for at least 10 minutes when he was on the ground at the conclusion of the attack. Although Mr Pi may have genuinely believed in the truth of his own version, it conflicts not only with the defendants' version but also with the circumstance that there were bystanders in the vicinity and that the police arrived relatively soon after the conflict began. It is unlikely that Mr Zhou, who was dressed for work as a taxi driver and was about to commence his shift, would initiate a physical conflict with one of his tenants who was, apparently, in the process of moving out. Motive is an aspect of probability: Onassis and Calerropolous v Vergiottis [1968] 21 Lloyds LR 403 at 431 per Lord Pearce.
3. Furthermore the objective probabilities tend to suggest that Mr Pi was the one who had a grievance as he was required to leave what had been his home as he was no longer welcome at the Property. Indeed, the statement of Constable Stone (which I accept) records that Mr Pi was still pointing towards Mr Zhou and yelling, "I kill you", after the police had arrived.
4. I do not accept Mr Pi's evidence except where admitted, corroborated or against interest.

Mr Zhou

1. Mr Zhou was an impressive and articulate witness. At the time of the hearing he appeared still to be shocked by the violence of the attack on him by Mr Pi and concerned about the effect on his wife, Mrs Zhao, of proximity to Mr Pi. I am satisfied that his evidence was truthful. In particular, I accept his evidence that he had not interfered with Mr Pi's enjoyment of the flat and that he had no interest in his tenants, except to make sure that they paid rent and did not interfere with other tenants. His conduct in going to the police station to report the attack as soon as he had been discharged from hospital demonstrated, in my view, his concern (which I accept to be honest and well-motivated) that the details of the incident be accurately recorded and that the law be enforced.

Mrs Zhao

1. Mrs Zhao answered the questions put to her in cross-examination directly. She refuted Mr Pi's account in a straightforward manner. I accept her evidence.

Orders

1. For the reasons given above, I make the following orders: 1. Judgment for the defendants. 2. Unless either party makes an application in writing to my Associate within seven days hereof, order the plaintiff to pay the defendants' costs of the proceedings.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 November 2015