Poole v. Piggott [2000] QDC 254 (5 September 2000)

District Court of Queensland|2000-09-05

[1] The plaintiff in this action is Kellie Anne Poole. She sues the defendant, Jason Piggott, for damages for trespass to a person as a result of an incident on 12 December 1998 at the Caboolture Showgrounds, Queensland.

[2] The action is one of an intentional trespass to the person. In that event, the plaintiff may recover damages not only for her personal injuries, but also for the injury to her proper feeling of dignity and pride. It seems to be common ground that the defendant did not know the plaintiff prior to the events on this evening. There are two separate incidents pleaded in the pleadings.

[4] The plaintiff is a 27 year old female person who had an interest in rodeos. She has previously been employed with a solicitor and was a dancer for about 10 years. On 12 December 1998 she attended the Caboolture Showgrounds, where a rodeo was being held. She herself competed in rodeos in the barrel event, which involved riding a horse and weaving in and out of the barrels in a certain formation.

[5] The plaintiff had previously met Janelle Piggott, the sister of the defendant. When she was aware that Janelle Piggott was at the Caboolture Rodeo, the plaintiff stated that she walked over to say hello, hugged Janelle, and asked about her trip to America. Janelle denies that she hugged the plaintiff.

[6] The plaintiff had arrived at approximately 11 am at the rodeo. She had had some 4 drinks throughout the day and also possibly a beer. The drinks were called "Stollies". The plaintiff did not meet Janelle Piggott until later in the evening, probably around 10pm. Janelle and the defendant gave evidence that they did not arrive until about that time. After the events finished the parties assembled in an area which is depicted in Exhibit 2. Various witnesses have described where the events occurred. At this point in time, it is fair to say that both incidents occurred in an area behind the grandstand and adjacent to same. There was an issue in the case as to whether the area was well lit or how many people there were. Having observed the number of lights which were shown in Exhibit 3 on the top roof of the grandstand, I am satisfied that the area was reasonably well lit. The defence sought to paint the picture that the area was not well lit. That of course would have been of some assistance on the question of identification. Given the close contact of the parties in the present case, that aspect of the defence case has no merit. There is also a flood light in the area together with the lights from the football oval adjacent thereto. Dr Michael Patterson, a veterinary surgeon called by the defence, described the lighting as adequate. He could see quite clearly, (Transcript 283.49).

[7] At the time that the plaintiff spoke to Janelle Piggott, her friend, J. W. Hart, who is referred to throughout the trial as "JW", was with her. The plaintiff stated that when she spoke to the defendant, after giving her a hug, Mr Hart grabbed her (the plaintiff) by the right arm and pulled her towards him. The plaintiff could not understand what he was saying as he appeared to have been drinking alcohol. His words were not being clearly articulated. The plaintiff made some insulting remark towards him. He was, in her words, "right in my face". The plaintiff stated that she walked away after having she had given him a "mouthful of abuse about being a wanker or whatever". According to Janelle Piggott, the plaintiff then turned around and head-butted Mr Hart in the mouth area causing a cut and bleeding. The latter fact is confirmed by Dr Patterson and Mr Ian Bostock, a rodeo organiser, both of whom have known the defendant's family for some years. It could not be said that they were independent onlookers.

[8] The defendant came on the scene shortly after that event. Someone threw a drink on the back of the plaintiff's evidence. When she turned around to see what was happening, she observed that there was a fight occurring on the ground with the defendant on top of Andrew Achilles, whom the plaintiff knew. The plaintiff said that she attempted to drag the defendant off Mr Achilles by the collar. Janelle Piggott she said then grabbed the plaintiff by the hair and told her to let go of her brother. When she did let go, the plaintiff said that the defendant got up and starting directing punches at her, hitting her on the side of the face near her eye. The plaintiff was then dragged away by Steven Jones, who was also known as "Jugs". The plaintiff said that her left eye was sore.

[9] There were two witnesses called by the plaintiff in relation to this first event. Tracey Pohlman, who knew the defendant prior to this event, observed the plaintiff hugging Janelle Piggott, when an American man (presumably Mr Hart) came over and said "get your hands off my girlfriend". Mrs Pohlman heard the plaintiff say "I will do what I want". A drink was thrown and there was some pushing and shoving between the plaintiff and Mr Hart. At that stage, Mrs Pohlman saw no other incident involving the defendant. Louise Corcoran, who had known the plaintiff for some months, saw her speaking to Janelle Piggott. She observed the defendant to hit the plaintiff after the plaintiff had grabbed him on the ground. She observed the defendant to get up, turn, and hit the plaintiff in the face. It was then that the plaintiff was grabbed and escorted away by Steve Jones.

[10] The version of events given by the defendant, Janelle Piggott, and other defence witnesses differed somewhat. Janelle Piggott stated that the plaintiff did approach her but she did not hug her. She said that Mr Hart said to the plaintiff "I don't think you'd remember me". The plaintiff then went into a swearing tirade and used words such as "I don't fucking remember you.... you a Americans think you are so good ... watch your back". Janelle Piggott then observed the plaintiff to turn and head-but Mr Hart. There were three males standing near Mr Hart, so Janelle Piggott called out "Jason, Jason". The defendant rushed over, stumbled and the three men and the defendant ended on the ground according to Janelle Piggott. A brawl then ensured. She observed the plaintiff jump on the back of her brother, the defendant, and kick and punch him on several occasions. She said that she went in and grabbed the plaintiff under the arms and that her brother was too busy fighting to respond.

[11] The defendant's version differs from that of his sister. He heard Janelle call out "Jason, Jason". He observed blood on the face of Mr Hart and then someone lashed out and hit him (Jason). He stated that he did not see the plaintiff in the first incident and that he ended up on the ground with the other men like a "stack of cards". He accepted that he probably hit them with his right hand. He said he did not see any women. Other witnesses called by the defence generally supported that version of events. I refer to the evidence of Mr Hart and Dr Patterson, in relation to the first incident. I accept their evidence that Mr Hart was head-butted.

[12] What is interesting in the defence case is that Janelle Piggott has the plaintiff in physical contact with the defendant whilst he was on the ground. He was on the ground, according to the plaintiff and her witnesses, because he was punching Mr Achilles. As far as the defendant was concerned the plaintiff was not involved.

[13] In relation to the first incident, I find the following:

(a) The plaintiff did have a verbal altercation with Mr Hart which probably resulted in her giving him a head-but.

(b) The plaintiff was trying to pull the defendant off Mr Achilles and was herself the subject of being pulled by Janelle Piggott.

(c) That the defendant did get up from the ground, turned and struck the plaintiff in the face causing a minor soreness to the left eye. She was being abusive at the time.

(d) That in the circumstances of that event it could not be said that the defendant acted unreasonably up to that point in time.

[14] It is of some relevance at this stage to comment upon the credibility of the witnesses.

[15] The defendant was reluctant to provide satisfactory responses to some questions. He was somewhat coy in even admitting that he knew that 2 of his witnesses, Mr Bostock and Dr Patterson, had dealings with his father. They had known the Piggott family for many years. He was also reluctant to admit that his father was the Chief Executive Officer in the National Rodeo Council. The fact that the defendant's sister identified him as a person on the ground when the plaintiff was attempting to haul him off Mr Achilles undermined the defence case on identification. As far as the defence was concerned, the defendant never saw the plaintiff at any time. He stated that he would not have been able to identify her, but for seeing her in court. Also, in the course of the second fracas, he said he did not know whether the person that had "king-hit" his sister was male or female and he did not see any women involved. He said that he tackled the person on top of his sister with a shoulder charge. The defendant could not property explain his references in the criminal trial to stomping "her" in the second incident (T202). That version of events I find to be incredible.

[16] The defendant denied that he had been drinking excessively and may have had at most 2 beers. The fact that no injuries were suffered or at least reported by the defendant causes one to doubt his version. The suggestion to medical witnesses that the defendant could not use his left arm was not supported by direct evidence, except from the defendant. His treating doctor was not called. It was a pathetic attempt to show that he could not throw a punch with his left hand. The proposition is rejected totally. He was able to ride bulls holding on with his left arm and do other manual work.

[17] Both of these witnesses observed the plaintiff attempting to hit the defendant. At that point, the defendant was on the ground on top of Mr Achilles. The plaintiff was attempting to get him off. Janelle Piggott admits that she was trying to get the plaintiff away from her brother. Dr Patterson seems to confuse the first and second incident. He did not see the plaintiff hit by anyone. I am satisfied that in the first incident, the defendant was justified in using reasonable force to protect his sister, Janelle, or Mr Hart.

[18] In relation to the overall credit of Dr Patterson and Mr Bostock, it is significant that neither of them observed or heard the abuse by the plaintiff of Mr Hart in the first instance. Mr Bostock did not see Janelle Piggott involved in that first incident, yet she admits she was attempting to pull the plaintiff off her brother.

[19] In the second incident, Dr Patterson saw the defendant shoulder charge the plaintiff to get her off. Mr Bostock says that the defendant shoulder charged two men. He did not see the plaintiff struck at any stage. He observed no bruises or blood, and said the plaintiff "looked pretty healthy" (307.1). He seemed to confuse both events. Even on the version of the defendant and Janelle Piggott, Janelle was on the ground. Mr Bostock did not see Janelle Piggott on the ground. He did not see the defendant throw any punches, yet the defendant admits that he did probably used his right hand.

[20] I find that overall, the evidence of Dr Patterson and Mr Bostock is not reliable in relation to the second incident. Their evidence does little to explain the injuries suffered by the plaintiff in the fracas. They were not in a position to contradict the defendant's evidence that he threw punches which, I find, were intentionally directed to the plaintiff in the second incident.

[21] The plaintiff said she went over to speak to Janelle Piggott about the first incident. This was some minutes after the first incident. She admitted that she was swearing and said words to the effect "what the fuck was that about". During this tirade of words, the plaintiff said she was hit from behind and fell to the ground. She stated then that the defendant was on top of her hitting her some 5 maybe 10 times around the head. The injuries which she suffered support a version of multiple hits. The plaintiff said that Mrs Pohlman and Miss Corcoran got her off the ground and took her to the toilets. At that stage she observed the defendant to be yelling at her group. He used words to the effect "You started it, you slut".

[22] Although Mrs Pohlman did not see the defendant involved in the first incident, she confirms that the defendant did hit the plaintiff whilst standing some 4 to 5 times and was stomping on her when she fell to the ground. She stated that the defendant could have moved away at any time. Ms Corcoran, who knew the defendant, stated that she observed the defendant but the defendant then got on top of the plaintiff on the ground straddling her with his knees either side of her and hit her 3 to 4 times. Someone tried to push him of and then she and Mrs Pohlman went into assist the plaintiff. She is adamant that she recognised the defendant and that she saw his face. She recognised him from other occasions. It did the defence little credit denying the involvement of the defendant with the plaintiff, on the grounds of poor identification and having regard to the overall defence evidence.

[23] In view of the observations of Mrs Pohlman and Miss Corcoran, I find that defendant could have got off the ground and left the plaintiff alone at any point in time. I find that he has acted unreasonably in hitting her 4 to 5 times on the ground and whilst on top of her. The defendant admitted he shoulder charged the person on top of his sister. This places the parties on the ground.

[24] I have no hesitation in accepting the evidence of Mrs Pohlman and Ms Corcoran that the defendant punched the plaintiff 3 - 5 times. Mrs Pohlman was prepared to make concessions from time to time. For example she confirmed that the plaintiff and Mr Hart were in a physical push situation although she did not see the head-but on the first incident. She had no reason to doubt the identification of the defendant as being the person involved with the plaintiff. She was in close proximity for some time.

[25] Miss Corcoran said that she "could not forget" the hits by the defendant on the plaintiff in relation to both incidents. On observing her and Mrs Pohlman I am satisfied that they were truthful witnesses. Any discrepancy in their evidence is not crucial. Janelle Piggott, although attempting to assist her brother, was somewhat reticent in her answers and obviously tried to protect her brother. Similarly, Dr Patterson and Mr Bostock clearly overstated their evidence in order to assist the defendant. The fact is that, on Janelle Piggott's version of events, she had the defendant involved in the first incident in that she was grabbing the plaintiff under the arms. In the second incident she stated she was hit from behind by the plaintiff and that the plaintiff was on top of her punching and kicking and pulling her hair out. She said she might have landed some blows on the plaintiff, who was yelling abuse. As was put by counsel for the plaintiff to Janelle Piggott, the version of events seemed incredible and I so find. The evidence of the defendant lacks credibility particularly his denial of being involved with the plaintiff at any point in time in an altercation.

[26] Section 6 of the Criminal Code Act 1899 preserves the right to sue at common law: Battiato v. Lagana [1992] 2 Qd R 234 at 235. An assault is any act which intentionally, or perhaps recklessly, causes another person to apprehend personal violence. Battery, as a species of assault, incorporates any actual intended use of unlawful force to another person without his or her consent: Fagan v. Metropolitan Police Commissioner [1969] 1 Q.B. 439. Proof of damage is not necessary: Battiato v. Lagana op.cit. 235.

[27] It is a defence to a claim for assault to show that the defendant was acting to protect the person of another: Goss v. Nicholas [1960] TASStRp 13; [1960] Tas SR 133, 144; Saler v. Klingbiel [1945] SAStRp 43; [1945] SASR 171, 174; Pearce v. Hallett [1969] SASR 423, 426; Section 273 of the Criminal Code.

[28] The force used must be reasonable and the onus of establishing that it is upon the defendant: Goss v. Nicholas op.cit

[29] An assault will not be actionable where it is justifiable by reason of provocation as defined by section 269 of the Code: White v. Connolly [1927] St R Qd 75. Provocation was not relied upon.

[30] I am satisfied that it was in the second incident that the plaintiff suffered her injuries for which she now seeks damages. Any suggestion that the defendant was acting in self defence is rejected as the force used was unnecessary, unreasonable and excessive in the circumstances surrounding the second incident. I say this even if I were otherwise satisfied that the plaintiff had hit Janelle in the first instance.

[31] The defence of aiding a third party must be a like response to the nature of the attack. Given the findings above, particularly the injuries suffered, the number of punches and the relative size differences, the defendant acted unreasonably. He is a well-built young man. He responded in a manner disproportionate to any conduct by the plaintiff. The defence accept that the onus lies with the defendant to prove that what he did was reasonable: McLelland v. Symons [1951] VicLawRp 21; (1951) VLR 157, 162.

[32] The defendant gave evidence in this case that he did not see the plaintiff throughout the evening. The defence of provocation is not raised. It cannot be said therefore that any conduct on her part provoked him to acts he did. In Fontin v. Katopidis [1962] HCA 63; (1962) 108 CLR 177, the High Court held that the trial judge was wrong in making a reduction as a result of provocation on the part of the plaintiff. The court was dealing with compensatory damages. The learned author Luntz "Assessment of Damages" third edition at para 1.7.11 states that aggravated damages are now recognised as compensatory. All the circumstances must be taken into account in determining the hurt to the plaintiff's feelings and such circumstances include the fact that the plaintiff was actively involved in a fracas.

[33] The approach therefore is to compensate the plaintiff not only for her physical suffering but also by way aggravated damages because of the defendant's conduct which outraged the plaintiff's feelings and the indignity which she suffered: Uren v. John Fairfax Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118 at 151; Luntz op.cit para 1.7.11. In considering whether there are any mitigating factors as far as aggravated damages are concerned, the defendant did not know the plaintiff. Her conduct on that night was of such a nature which may have justified some retaliation. See the discussion in Luntz op.cit 1.7.12. I do take into account the abusive nature of her conduct, her attack on Mr Hart and her general involvement in the second incident in reducing any aggravated damages. It is not a case which calls for public censure of the defendant's conduct: Fleming "The Law of Torts" 8th Ed. p.241. No amount is allowed for exemplary damages, as I am not satisfied that there is evidence of contumelious disregard of the plaintiff's rights: Lamb v. Cotogno (1987) 164 CLRJ; Jervis Sulphate (NT) Ltd v. Petro Cash Corporations No Liability (1974) 5 ALR (NT.Supreme Court) 33-4.

[34] The plaintiff attended at the surgery of Dr Mogg on 14 December 1998 some 2 days after the incident. She had been sleeping for long periods, had dizzy spells and headaches, but was not knocked out and suffered no amnesia. Her injuries consisted of :

(vi) right leg - 3 bruises - 2 above knee and 1 below."

[35] The plaintiff was seen again on 16 December 1998 with persistent frontal headache and dizzy spells. She continued to have difficulty staying awake. She also developed a tick to the left eye.

[36] Dr Parker, who deals with head and neck surgery and in particular problems with the ear, saw the plaintiff on 22 April 1999. Her ear felt blocked on the right side and she is now bothered with ear problems, particularly when flying. He referred to her dizzy spells and sensation of feeling she was likely to faint. She also had headaches. Dr Parker found no gross abnormality and on testing there was some subjective sensation of vertigo but not nystagmus. The latter would be objective confirmation of problems which she said she was suffering. However, Dr Parker also stated that the subjective symptoms would be difficult to make up. He had assumed that she was knocked out. The plaintiff gave evidence she was not knocked out and that was confirmed when she saw Dr Mogg. Dr Parker said that the head injury could account for the asymmetry in her hearing levels and the symptom of right tinnitus. He was of the view that the symptoms should resolve and that her imbalance should clear up within 3 to 6 months.

[37] Dr Michael Weidmann, a neurosurgeon saw the plaintiff on 11 June 1999. Having heard the history, including reference to some memory loss, he assessed 8% partial impairment of the whole person. He reviewed the plaintiff on 24 August 2000 during the course of the trial. He assessed the disability at 4%. His evidence was to the effect that given the nature of the symptoms then they were more likely to be physical than psychological. He said that the symptoms that the plaintiff described were consistent with her having a relatively minor head injury and also post concussion syndrome. I accept that evidence. It may well be that other socio-economic factors would cause the symptoms to be worse compared to a person without the psychological problems which the plaintiff suffered pre-accident. However, the defendant must take the plaintiff as he finds her as a person who would be more vulnerable in the way that she has reacted in any event. As Dr Weidmann stated, it would be unlikely that she would have developed such symptoms in the ordinary course of events as they are of a discrete nature. Her symptoms could be regarded as separate from any pre-existing psychiatric problem. Dr Weidmann is a neuro-surgeon. Dr Allison Reid gave evidence contrary to that evidence. She stated that the plaintiff did not fall into the criteria of concussion syndrome. She believed that her symptoms are very non-specific and may have a multitude of underlying explanation separate from the incident. The headaches for example may have been caused by anxiety, depression or lifestyle. Dr Reid accepted that the plaintiff may be suffering from certain symptoms but that they are not related to the incident. Her analysis overlooks the fact that the plaintiff may have been a vulnerable person who once having suffered an injury then the symptoms have exacerbated an already underlying condition such as vulnerability to headaches or stress. One must allow for the fact that she may have suffered from headaches in any event.

[38] The observations of the plaintiff's mother Mrs Logan confirms that the plaintiff did suffer from headaches, sleeping excessively after the incident, sight problems and balance difficulties including an inability to ride her horses and some difficulty in driving a motor vehicle. I accept her evidence.

[39] The plaintiff has been reasonably candid in stating that her problems are not as serious as they were but they are on-going. In particular, the problem to her right ear, some minor problems with balance and the tick to her eye on occasions. In relation to the headaches, I am satisfied that they may be caused by the ordinary stresses of life and cannot be causally related to the accident at this point.

[40] The plaintiff is a 27 year old woman with an 8 year old child. She had had some previous psychological problems but was described by her mother as a happy person prior to this incident. The plaintiff had a great interest in rodeo riding, competing over many years and also nearly on a weekly basis throughout the State. Since this incident she has not competed. In assessing any claim, I take into account the following:

1. That an injury to her health may have prevented her from competing as did happen in 1998.

2. Her son was to start school and this may have limited her travel throughout Queensland and Australia.

3. The likelihood of her getting money from winning would have been off-set to a substantial expense by her expenses.

[41] I allow only a nominal amount of $1,000 for economic loss. It is a nominal amount given the uncertain nature of the activity.

[42] In relation to Griffiths v. Kerkemeyer I allow the following which was not really disputed in relation to health provided by Mrs Logan:

4 hours per day, 7 days per week over 3 weeks @ $10.00 per hour $840.00

2 hours per week, 7 days per week for 2 weeks @ $10.00 per hour 280.00

1 hour per day, 7 days per week for 25 weeks @ $10.00 per week 1750.00

[43] The total mileage travelled for doctors appointments (T.29-30) was 650 kilometres. I allow 50c per kilometre. This produces an amount of $325.00. I allow a further $270.00 for medication (T.25-26). The defence concede $595.00 for out of pocket expenses.

1. Judgment for the plaintiff against the defendant in the sum of $17,056.00.

2. Order that the defendant do pay the plaintiff's costs to be assessed on the appropriate Magistrates Court scale.

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