Shallow v Frank; Thomas v Frank

• Jurisdiction: St Vincent and the Grenadines
• Judge: Thom, J
• Judgment Date: 16 September 2008
• Neutral Citation: VC 2008 HC 38
• Docket Number: 242 of 2005
• Court: High Court (Saint Vincent)
• Date: 16 September 2008

High Court

Thom, J.

242 of 2005

Shallow

and

Frank

Thomas

and

Frank

Appearances:

Ms. Niara Fraser for the claimants.

Mr. Joseph Delves for the defendant.

Damages - Assault and battery — Whether defendant used reasonable force in defence of his property and person.

Thom, J

1 This is a consolidated claim for damages for assault and battery.

2 Christina Thomas is the mother of Patsy Shallow. They and Thaddeus Frank all reside at Glenside Mesopotamia.

3 On the 23rd day of March 2003, Christina was walking on a piece of land which she claims to be her own. At the time she was carrying a bunch of plantains on her head. Thaddeus Frank who also claims the same piece of land as his land objected to Christina Thomas walking on the land. He knocked the plantains off her head. Christina Thomas alleges that Thaddeus Frank also beat her with a piece of steel and caused her to suffer several injuries. A few minutes later Patsy Shallow went to the scene and she alleged that Thaddeus Frank told her to get off his land. She held her mother and said she was going to report the matter to the Police whereupon Thaddeus Frank struck her with the steel several times as a result of which she received injuries.

4 Thaddeus Frank denied that he struck Christina Thomas and he alleged that it was Patsy Shallow who had the steel and she struck him several times with the steel causing him injuries. While she was striking him, Christina Thomas got injured. He further alleged that Christina Thomas attacked him and tore his jersey. He admitted that he struck Patsy Shallow. He alleged he was acting in defence of his property and his person.

ISSUES:

5 The issues to be determined are whether Thaddeus Frank committed assault and battery on Christina Thomas and Patsy Shallow and if he did so whether he used reasonable force in defence of his property and or his person.

SUBMISSIONS:

6 Learned counsel for Thaddeus Frank submitted that the Court should accept the evidence of Thaddeus Frank. The incident arose as a result of the unlawful act of Christina Thomas. Learned counsel stressed that it was Patsy Shallow who went to the scene of the incident armed with a piece of steel and referred the Court to the testimony of Aretha Baptiste a neighbour of Patsy Shallow who testified in the criminal trial at the Magistrate Court as a witness for the Prosecution. Learned counsel concluded that Thaddeus Frank acted reasonably in the circumstances.

7 Learned counsel for Christina Thomas and Patsy Shallow submitted that Thaddeus Frank's actions were unreasonable in the circumstances and referred the Court to the cases of Eustace St. Rose v Eric Gordon No. 0352 of 1996 H.C. Dominica; and Shaaira Alexis v John Small No. 22 of 1999 H.C. Grenada.

LAW:

8 It is settled law that a man may resist trespass to his property or his person. However, in doing so he may not use unreasonable force. In the Eustace St. Rose case Rawlins J (as he then was) after reviewing the cases of Lane v Holloway [1968] 1 Q.B. 379, Murphy v Culhane [1976] 3 All E.R. 533 and Fontin v Katapodis [1962] 108 C.L.R. 156 stated as follows at paragraph 16:

• “1. In a civil action for damages for injuries sustained in which the claimant initiated or contributed to the incident by his own unlawful acts, a defendant may avail himself of the defences exturpi causa non oritur action and volenti non fit injuria or even self defence.

• 2. These defences may not be available to the defendant, however even if the claimant initiated or contributed to the incident if the subsequent injury to the claimant is inflicted with a weapon, particularly where the injured person did not himself have a weapon or by a blow that is out of all proportion to the occasion.

• 3. In the circumstances that falls under (2) however a defendant may not be liable if he can prove accident or self-defence.”

EVIDENCE:

9 Christina Thomas and Patsy Shallow gave evidence on their own behalf and Thaddeus Frank gave evidence on his behalf.

10 The evidence on behalf of Christina Thomas and Patsy Shallow is that Christian Thomas was walking on a portion of land that belonged to her. Deed No. 2607 of 2004 was tendered in evidence. It shows that Christina Thomas became owner of the land being the sole beneficiary of the estate of Ruth Frank. The Deed is dated 14th July 2004. This is after the date of the incident. Thaddeus Frank who claims the same land objected to her walking across the land and he pushed the plantain off her head, beat her with a piece of steel, and she fell. She suffered several injuries. While Christina Thomas was lying on the ground Patsy Shallow went to her. Thaddeus Frank told her to leave his property. She held Christina Thomas and said she was going to get the Police. Thaddeus Frank then hit her several times with the piece of steel and as a result she suffered several injuries. The matter was reported to the Police. Thaddeus Frank was convicted of inflicting grievous bodily harm on Christina Thomas. He was acquitted of inflicting grievous bodily harm on Patsy Shallow. His appeal to the Court of Appeal was dismissed. Christina Thomas was examined by Dr. Debnath and Dr. George Walker. The medical report of Dr. Debnath states as follows:

• “1. Lacerated wound on the right side of upper lip which was sutured and dressed.

• 2. Tenderness over right shoulder and swelling.

• 3. Tenderness and marks of scratches on the back.

• 4. Swelling and tenderness with bluish discoloration on the left thigh.

• 5. She was unable to walk properly and was full of pain almost all over the body.”

The medical report of Dr. George...