Battiato v Lagana [1991] QSCFC 141 [1992] 2 Qd R 234

TRANSCRIPT C^£L OF PROCEEDINGS State Reporting Bureau, 4th Floor, The Law Courts, George Street, BRISBANE. O. 4000 (07) 227.4360. (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Retorting* *0 Bureau.) REVISED COPIES ISSUE Court Reporting Bureau S Date: [Ky U / <\| i \ 4 SUPREME COURT OF QUEENSLAND ( ) FULL COURT THOMAS J DERRINGTON J MOYNIHAN J Appeal No 36 of 1991 GERARD BATTIATO (Plaintiff) Appellant and GIUSEPPE LAGANA (Defendant) Respondent BRISBANE ..DATE 31/10/91 9.30 A.M JUDGMENT 1 [1991] QSCFC 141 -- 1 of 14 -- 1 10 20 BO 40 50 60 311091 JUDGMENT MR JUSTICE THOMAS: I agree with the reasons about to be published and the order about to be proposed by my brother Moynihan . MR JUSTICE DERRINGTON: I also agree. MR JUSTICE MOYNIHAN: I would set aside the judgment below and enter judgment for the appellant. I make no order as to the costs of the trial and order that the appellant recover his costs of the appeal limited to one third. I publish my reasons. j' MR JUSTICE THOMAS: The order will be that which my brother has just proposed. MR WEBB: In that matter I asked for a certification, I believe . MR JUSTICE THOMAS: The absence of its inclusion in the order means it has been considered and not granted. • • Govt. Printer, Qld. 2 -- 2 of 14 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT Appeal No. 36 of 1991 BETWEEN : GERARD BATTIATO (Plaintiff) Appellant AND: GUISEPPI LAGANA (Defendant) Respondent THOMAS J DERRINGTON J MOYNIHAN J Reasons for judgment delivered by Moynihan J on 31st October, 1991. Thomas and Derrington JJ agreeing with those reasons and with the orders proposed. "APPEAL ALLOWED. SET ASIDE THE JUDGMENT BELOW AND ENTER JUDGMENT FOR THE PLAINTIFF/APPELLANT. ORDER THAT THE APPELLANT RECOVER AGAINST THE RESPONDENT HIS COSTS OF THE APPEAL LIMITED TO ONE-THIRD ." -- 3 of 14 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT Before the Full Court Mr. Justice Thomas Mr. Justice Derrington Mr. Justice Moynihan Appeal No. 36 of 1991 -n BETWEEN : AND: GERARD BATTIATO (Plantiff) Appellant GUISEPPI LAGANA (Defendant) Respondent JUDGMENT - MOYNIHAN J. Delivered the 31st day of October, 1991 l. CATCHWORDS Counsel: Mr. Vitali for appellant Mr. Webb for respondent Solicitors: Cooper Grace & Ward t/a for Nehmer Davenport Dean McKee for appellant Mighell Lee-Bryce & Vandeleur for respondent Hearing date: 10th October, 1991 -- 4 of 14 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT Appeal No. 36 of 1991 BETWEEN: GERARD BATTIATO (Plaintiff) AND: GUISEPPI LAGANA (Defendant) JUDGMENT - MOYNIHAN J. Appellant Respondent Delivered the 31st day of October, 1991 This is an appeal against the entry of a judgment, with costs, for the respondent (the defendant in the action) against the appellant (the plaintiff in the action). The formal judgment was that the appellant "recover nothing against the defendant" and that the respondent recover his costs of and incidental to the action to be taxed from the appellant. The cause of action specified in the claim endorsed on the plaint was for the tort of battery. The facts pleaded as relied on to prove the appellant ' s claim allege that late in the afternoon of 6 June 1988 the respondent "wrongfully and intentionally beat the plaintiff by striking him on the head with -- 5 of 14 -- 2 a piece of wood". This and other allegations were put in issue by the defence. The action was tried by a jury in the District Court at Innisfail. The form in which the jury's verdict was taken is revealed by the record to be as follows :- "CLERK: How do you find for the plaintiff or for the defendant? — FOREMAN: The plaintiff. CLERK: What figure do you assess the damages? — FOREMAN : No damages . CLERK: So says your foreman, so say you all? — JURY: Yes." The verdict having thus been taken the jury was, without more, discharged. The Judge then heard argument as to which of the parties was entitled to have judgment entered in his favour and as to the form of the order as to costs. He concluded that he had "no alternative" but to enter judgment for the respondent and he did so in the terms to which I have referred and made the order as to costs. The course followed by the trial Judge was expressly based on a consideration that "an essential ingredient of the tort of assault is that damages are found". After saying that damages could be nominal the trial Judge went on to say that he knew of "no situation in which one can enter judgment for the plaintiff in relation to a tort without a sum of money being specified however small". This reasoning and the outcome reflects submissions made to the trial Judge by the respondent's counsel at the trial ( he was not the counsel on appeal). -- 6 of 14 -- 3 The direct intentional imposition of any unwanted physical contact on another person constitutes the tort of battery. There is no requirement to prove that the contact caused or threatened any physical harm; see for example Clerk & Lindsell on Torts 16th edition 17-803. It will be recalled that at common law, assault, in contradistinction to battery, is an overt act indicating an immediate intention to commit battery coupled with the capacity of carrying that intention into effect. Section 245 of the Criminal Code defines assault so as to include acts constituting assault or battery under the rubric of "assault" and so does away with battery for the purposes of the Code. Section 246 then renders an assault unlawful unless authorised, justified or excused by law. The "wrong" of battery is a species of trespass or more accurately trespass to the person based on trespass. The cause of action is one of a trilogy based on trespass to the person. The others are assault and false imprisonment. It is pertinent to note that s. 6 of the Criminal Code Act 1899, after declaring to the effect that no action could be brought in respect of a matter the Code declared lawful otherwise preserved common law rights for actionable wrongs. An action founded on battery affords protection against "any interference with the person offensive to a reasonable sense of honour and dignity", Fleming Law of Torts 7th Edition p. 23. Such intentional interferences are actionable whether resulting in harm or not; c.f . Dumont v. Miller (1873) 4 A.J.R. 152 (a case dealing with trespass to land) . -- 7 of 14 -- 4 Blackstone wrote in his Commentaries (17th edition 1830 Vol . 3 p. 120) - "The law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man's person being sacred, and no other having the right to meddle with it, in or the slightest manner." Since battery is designed to protect the inviolate person of the individual "the least touching of another in anger is a battery", Cole v. Turner (1704) 6 Mod. 149 (87 E.R. 907). There is no need to prove that contact caused any injury or harm, it is the "mere trespass" which is the harm; Wilson v. Prinale [1986] 2 All.E.R. 440 at 495 (C.A.); Collins v. Wilcock (1984) 1 W.L.R. 1172 at 1177, per Robert Gough L.J. Damages then are not an essential component of the cause of action of battery. The position is otherwise when a cause of action for interference with the person is founded on negligence. This was the situation which arose in the rather vexed case of Letang v. Cooper [1965] 1. Q.B. 232 where, given that the trespass to the person in issue was unintentional, the cause of action had to be founded on negligence. The situation was of course to the contrary in the case under appeal where it was alleged that the blow was intentional. In Letang if the plaintiff's claim was an action for negligence it was statute barred under the relevant limitations act. If it was a claim characterised as trespass to the person it was not. Since the act complained was unintentional the Court of Appeal characterised the action as being one for negligence and held it statute barred. In the course of his reasons, Diplock L.J. distinguished between breaches of duty giving rise to causes of actions in o -- 8 of 14 -- 5 which the infliction of actual damage was an essential element (i.e. negligence) and causes of actions where the infliction of actual damage was not an essential element (i.e. actions founded on trespass including battery). It follows that in my view the trial Judge was mistaken in entering judgment on the basis that the jury's finding of no damages gave him no alternative but to enter a judgment that the appellant recover nothing against the respondent on the basis that a finding of damages was essential to judgment for the appellant. On that basis the judgment below, including the consequential order as to costs, must be set aside. That in turn requires a consideration of the consequences of the jury's verdict from the perspective of the judgment it founds. At this stage it is necessary to say something of the commission of the alleged tort, of the effect of the evidence and as to the summing up. The alleged battery occurred in the context of what was described as a "melee" involving the appellant and others associated with him on the one hand and the defendant and others associated with him on the other. It would appear from the record that in the trial Judge ' s view the circumstances of the instigation of the melee reflected no particular credit on the appellant who had gone armed with "an unpleasant weapon designed for use on other human beings" and sought out the respondent. The view taken by the trial Judge, it can be discerned from the summing up and from what was said in relation to the entry of judgment and the order as to costs, seems to be well founded on the evidence as it appears from the record . It further appears that the events occurred in a -- 9 of 14 -- 6 situation of on-going bad blood involving the appellant and his partisans and the respondent. It is unnecessary to consider these matters in any detail. It appears however that the appellant had previously been successfully sued by another party to the events giving rise to the action the subject, of this appeal . It is to be remarked that no redirection was sought at the trial save in respect of a matter not presently in issue and no criticism of the summing up was essayed in the course of submissions made in the course of the appeal. It is clear that it was open for the jury not to be satisfied on the balance of probability that the injuries complained of by the appellant were inflicted by the respondent. Apart from anything else, this was so in the context of a contrary consideration that the injuries were caused by the appellant coming into contact with a truck in circumstances for which it was not contended the respondent bore a responsibility. There was another issue as to whether any battery by the respondent was lawful by reason of his acting in the defence of his son or on the basis of an honest reasonable but mistaken belief that he was so acting. This consideration notwithstanding it will be recollected that the jury were not asked to return a verdict in terms of their satisfaction or otherwise as to battery taking place and if it did whether it was lawful. Rather they were, it will be recalled, simply asked whether they found for the appellant or for the respondent in respect of what might be described as the issue of liability. -- 10 of 14 -- 7 So far as the issue of damages is concerned, in the course of his summing up the trial Judge told the jury:- "... if you were considering, as you would be at this stage, that the blow had occurred and the blow to the head was not lawful, that there would have been a battering, but no damage has been established as occurring as a result of that battering, then the effect of that finding would be that the plaintiff would be entitled to damages, to represent the fact that a battering had been committed on him, but those damages would be what we call nominal damages ." His Honour suggested that $5.00 might be an appropriate expression of nominal damages before going on to tell the jury that if they were satisfied that the plaintiff had made out his case that the injuries were occasioned by an unlawful blow to the head by the defendant "then you would go on to consider the fourth issue which is: what damages do we assess?" He then went on to deal with the meaning of damages at large and considerations bearing on the assessment of damages in the that context in the particular case before saying "... will be asked by my clerk when you have decided upon your findings, first of all 'Do you find for the plaintiff or the defendant? 1 and secondly, if appropriate, and you find for the plaintiff, 'At what figure do you assess damages?"' I have already dealt with the way in which the jury answered these questions. Generally speaking an appeal court will set aside a finding of a jury against the party carrying the onus of proof if only one verdict could reasonably have been reached on the evidence; Baird v. Maaripilas (1925-26) 37 C.L.R. 321; Conrad v. Chermside Hospitals Board [1982] Qd.R. 234. This case is the reverse but the point is the jury's finding for the appellant in the context of being asked whether they found for the appellant or for the -- 11 of 14 -- 8 respondent was open on and consistent with the evidence. On one view of it they could conclude there had been an unlawful battery even if they were not impressed with the appellant's role. It has not been demonstrated that in reaching their verdict the jury misdirected themselves; c.f. Cousins v. Bradford Kendall Foundry (1987) 7 N.S.W.L.R. 428 at 438. The finding of no damages is more difficult to reconcile not so much perhaps with the evidence as with the direction given in summing up in so far as it required the jury to consider nominal damages if there had been a battery but no damages established as a consequence. It may be that the verdict reflects a misunderstanding on the part of the jury of what was required of them in respect of the issue of damages if they were not satisfied any had actually been established. The verdict may be consistent with a view that the jury was not impressed with the appellant's case and declined to award him damages. This is however no more than speculation. On the other hand the evidence is not cogent enough to render a verdict for less than substantial damages unreasonable; c.f. Bariev v. Truth and Sportsman Ltd. (1938) 60 C.L.R. 700 at 731. It may have been desirable for a more explicit direction as to the circumstances in which a verdict for nominal damages was appropriate or to have asked the jury to return a verdict in respect of damages by directing their attention to the implications of the earlier part of the verdict. The difficulty which the form of the verdict was thought by the trial Judge to present diminishes if it does not disappear once it is appreciated that damages are not an essential component of the n o -- 12 of 14 -- 9 cause of action for battery. That it will be recalled is the appreciation which led the trial Judge giving judgment for the respondent. In the circumstances, the appropriate way to give effect to the jury's verdict was to enter judgment for the appellant. It remains to consider the question of costs. In the normal course of events costs would follow the event. That is not inevitable and the general rule may yield to particular circumstances. In dealing with the question of costs in the present case the trial Judge said:- "... I would indicate that had the jury found nominal damages I would, as I have indicated to counsel, have been very cautious about my approach to costs and having given the matter careful consideration I would, I consider, come to the conclusion that even in those circumstances I would not have made an order in favour of the plaintiff. Indeed I would have been disposed to give favourable consideration to an order in favour of the defendant because where nominal damages are awarded an essential ingredient of a substantive cause of action is in my view not made out." As I have already indicated His Honour was, in my respectful view, mistaken as to the later aspect. It is plain however that, from this and other remarks, that His Honour was less than impressed with the appellant's conduct insofar as it bore on the issue of costs. Whilst this court is not bound by his views they do not seem to be without foundation. Moreover he was better placed than this court, having conducted the trial, to make an appraisal of the respective merits. It may be noted that in defamation trials when the jury award normal damages the usual practice is to make no order as to costs; Oatlev on Libel and Slander 8th ed. para. 1547. That is the order I would make here. -- 13 of 14 -- 10 So far as the appeal is concerned the appellant has succeeded in obtaining the judgment he ought in my view have obtained below. He did so on a basis not expressed in the grounds of appeal. I would order that he recover costs of the appeal to be taxed limited however to one-third. -- 14 of 14 --