Willmington & Anor v Cassidy[2007] QDC 73

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   These proceedings largely arise out of an incident that occurred at the Wishart Shopping Village on Tuesday, 24 October 2000 at about 11.50 pm. There are claims and cross-claims for damages made by all parties.

2. [2]
   The defendant, Mr Cassidy, makes an additional claim for damages for harassment and intentional infliction of harm caused by conduct of the plaintiffs, Mr and Mrs Willmington, and the third defendant by counterclaim Mr McDonald, caused by conduct arising after 24 October 2000.  The plaintiffs and the third defendant by counterclaim contend that the claims for harassment and intentional infliction of harm are statute barred.

3. [3]
   Mr David Willmington is the first plaintiff and first defendant by counterclaim.

4. [4]
   Mrs Kathryn Willmington is the second plaintiff and second defendant by counterclaim.

5. [5]
   Mr and Mrs Willmington are the directors of DK Pty Ltd, the lessee of Shop 16 at the Wishart Shopping Village. The company operates an Italian restaurant called “Donini’s byo Wishart”. DK Pty Ltd acquired the restaurant as a going concern in December 1999. It commenced operating the restaurant from 1 December 1999.

6. [6]
   Mr Wayne Cassidy is the defendant and plaintiff by counterclaim. He is a chartered accountant. He conducted his accountancy practice from Shop 17D at Wishart Shopping Village from 1 November 1997 to 31 October 2001.

7. [7]
   Mr Scott McDonald is the third defendant by counterclaim. He was an apprentice chef employed by DK Pty Ltd at Donini’s Restaurant. He ceased employment there on 25 March 2001.

8. [8]
   Mr Cassidy arrived at the Wishart Shopping Village at about 11.45 pm on 24 October 2000. Mr Willmington said that Mr Cassidy was enraged by the location of chairs along the open veranda which was used by the restaurant as an outdoor dining area. In the course of the confrontation which followed, Mr Willmington says that Mr Cassidy produced a knife which was placed against his throat. Mrs Willmington claims to have suffered nervous shock as a result of having witnessed the incident.  Mr McDonald says that he was struck by Mr Cassidy when he came to the assistance of Mr Willmington.

9. [9]
   Mr Cassidy says that he was frustrated because there were tables and chairs blocking entry to his office. He said that when he spoke to Mr Willmington earlier in the day, he had agreed to move those tables and chairs. He began to move the chairs and he concedes that he did so quite roughly. He said that Mr McDonald lunged at him and struck him to the left side of the face. Mr Willmington then struck him in the mouth with the open palm of his right hand. Mr Cassidy denied having a knife. He said that he was in possession of a letter opener and his office key holder. He said that he held those objects up as Mr Willmington and Mr McDonald advanced towards him.

Causes of Action

10. [10]
    The following causes of action arise on the pleadings:-

1. (a)
   Mr Willmington’s claim against Mr Cassidy for damages, including aggravated and exemplary damages arising out of an assault and battery on 24 October 2000 and subsequent stalking;

2. (b)
   Mrs Willmington’s claim against Mr Cassidy for damages for nervous shock, including aggravated and exemplary damages as a result of her having witnessed the assault and battery on 24 October 2000 and as a consequence of the subsequent stalking by Mr Cassidy;

3. (c)
   Mr Cassidy’s claim against Mr Willmington and Mr McDonald for damages in the sum of $1,039,237 for personal injuries sustained by Mr Cassidy by reason of the alleged assault and battery on 24 October 2000, and the conduct particularised in para 21 of the counterclaim;

4. (d)
   Mr Cassidy’s claim against Mr Willmington and Mr McDonald for harassment as particularised in para 21 of the counterclaim.

5. (e)
   Mr Cassidy’s claim against Mr and Mrs Willmington for damages in the sum of $1,039,237 for personal injuries sustained by Mr Cassidy by reason of the conduct particularised in para 22 of the counterclaim, which is said to have been done “with the intention to cause damage to the mental health of the defendant”;

6. (f)
   Mr McDonald’s counterclaim against Mr Cassidy for damages, including aggravated and exemplary damages arising out of the assault and battery on 24 October 2000.

11. [11]
    The parties accepted that the resolution of these issues largely depended on credibility findings. However, there is the further issue as to whether the claims in paras 21 and 22 of Mr Cassidy’s defence and counterclaim are statute barred.

12. [12]
    On 30 January 2006, McGill SC DCJ ordered that the quantum of Mr Cassidy’s claim be determined at a subsequent separate hearing, if necessary.

The events of Tuesday, 24 October 2000 and the subsequent stalking conduct

13. [13]
    In all there were seven witnesses who gave evidence in relation to the events at Donini’s byo Wishart on Tuesday, 24 October 2000. A number of the witnesses also gave evidence in relation to the alleged stalking conduct by Mr Cassidy on 4 and 5 November 2000.

David Willmington

14. [14]
    Mr Willmington said that when he and his wife acquired the business in December 1999, they continued to operate the restaurant in much the same manner as it had been conducted for six years previously. The dine-in customers were seated at tables inside the restaurant as well as along the covered veranda area. There were three plans of the Wishart Village Shopping Centre placed in evidence^[1].  One of the plans^[2] shows 10 posts along the covered veranda.  The posts are numbered on the plan, with post number 1 being outside Mr Cassidy’s accountancy practice.  Donini’s byo Wishart is at the other end of the veranda in the vicinity of posts 7 to 10, as depicted on that plan.

15. [15]
    Mr Willmington explained that on ordinary trading nights the tables and chairs along the veranda would extend from post 10 to post 6, or possibly post 5. On busier nights outdoor dining would extend along the covered veranda, towards Mr Cassidy’s office.  Mr Willmington said that on a busy night, if there was a bigger group, the tables and chairs would extend to post 4 and, on some occasions, down to post 3.  Mr Willmington said that to his knowledge tables and chairs had never extended beyond post 3 and had certainly not been placed in the vicinity of Mr Cassidy’s office.

16. [16]
    Mr Willmington said that prior to 24 October 2000, there had been very little interaction with Mr Cassidy apart from the exchange of pleasantries in the car park. He said that he had never had a conversation with Mr Cassidy.

17. [17]
    On 24 October 2000, there were bookings for some large groups and tables had been set up down the veranda to the vicinity of post 3. Mr Willmington said that at about 3 pm Mr Cassidy came to the door of the kitchen and complained that the chairs were untidy. Mr Willmington then followed him along the veranda and saw that the chairs were not pushed in under the tables as they ordinarily would have been. He said that he would remind the staff to push the chairs under the tables.

18. [18]
    Mr Willmington said that at about 11.45 pm he and Mr McDonald were stacking tables and chairs. Mr Cassidy arrived in his BMW motor vehicle. According to Mr Willmington, Mr Cassidy was red in the face and he began yelling.  He was plainly angry about the restaurant furniture on the veranda.  Mr Willmington said that Mr Cassidy began swinging his arms around and he continued screaming.  Mr Willmington told him to calm down.  He then noticed a silver object in Mr Cassidy’s hand, which he later realised was a knife.  He said that Mr Cassidy picked up a chair and threw it at him, but it struck post number 4 and landed in front of the motor vehicle.  Mr Willmington said that he held both hands up saying, “Calm down.  Call the police”.  Mr Willmington said that he continued to back away, calling for Mr Cassidy to calm down.  He then backed away to the area of post 6, as depicted on Exhibit 3.

19. [19]
    According to his statement to the police^[3], Mr Willmington said that Mr Cassidy continued to come at him, holding the knife high in the air.  He was doing slashing motions in the air.  He grabbed Mr Willmington around the collar area of his jacket and pushed the knife towards his throat.  Mr Willmington grabbed Mr Cassidy’s right arm.  Mr McDonald then came in and pulled Mr Cassidy away.  Mr Willmington then observed Mr Cassidy strike Mr McDonald in the upper body with his left hand, causing Mr McDonald to be knocked backwards^[4].  He also saw Mr Cassidy rush at Mr McDonald and make two or three slashing motions at him^[5].  Mr Cassidy then turned from Mr McDonald towards Mr Willmington and called out, “I’m going to fucking kill you”, whilst pointing the knife at him.  Mr Willmington continued to urge Mr Cassidy to calm down and asked him to wait for the police.  He said that Mr Cassidy opened the right rear door of his motor vehicle and threw the knife onto the back seat.  As he closed the door he said, “I’m going to fucking stab you.  I’m going to fucking kill you.”^[6]  Mr Cassidy then drove away, colliding with the plastic chair that he had earlier thrown at Mr Willmington.

20. [20]
    The incidents of stalking relied upon by Mr and Mrs Willmington in para 6 of their claim relate to events that occurred on 4 and 5 November 2000.

21. [21]
    In his statement to the police dated 15 January 2001^[7] Mr Willmington said that on Saturday, 4 November 2000 at approximately 5.45 pm he, Mrs Willmington and the other staff were setting up tables on the front veranda outside the restaurant.  He said that Mrs Willmington drew his attention to the fact that Mr Cassidy was parked in his vehicle opposite the restaurant on Mt Gravatt-Capalaba Road.  Mr Willmington observed Mr Cassidy reverse his vehicle in the parking lane by approximately 30 feet.  As he was doing so, Mr Willmington said that Mr Cassidy was looking directly at him.  Staff were told to remain calm but Mr Willmington said that he was very nervous, as he feared the prospect of another attack.  Mr Cassidy continued to watch for three to five minutes before he slowly rolled down to the service station just past the shopping centre.  Mr Cassidy stopped his vehicle in the service station so that he was directly facing the restaurant.  After a further period of three to five minutes, he drove out of the service station and away from the restaurant.  However, a few minutes later Mr Willmington observed Mr Cassidy drive back along Mt Gravatt-Capalaba Road.  He was driving slowly and then turned into the shopping centre.  He drove directly past the restaurant very slowly and close to the edge of the veranda.  After he had passed the restaurant he accelerated away quickly.

22. [22]
    On Sunday, 5 November 2000 Mr Willmington was cooking in the kitchen at about 7 to 7.30 pm. One of the members of staff reported to him that Mr Cassidy was back. Mr Willmington looked outside and saw Mr Cassidy’s green BMW motor vehicle driving past the front of the restaurant very slowly. A short time after members of the staff reported that Mr Cassidy was back, Mr Willmington observed him again driving slowly past the restaurant. Mr McDonald called the police. While he was speaking to the police on the telephone, Mr Willmington saw Mr Cassidy in his vehicle, which was parked facing the restaurant.  After a few minutes he drove out of the shopping centre.

Kathryn Willmington

23. [23]
    Mrs Willmington said that the last customer had left the restaurant just after 11.30 pm.  She was polishing glassware when she noticed a set of car headlights enter the shopping centre.  She thought that one of the customers may have left something behind and she put down the glasses she had been polishing.  She then heard the sound of screaming and yelling and commotion.  She heard the sound of what she described as chairs being thrown around.  She went outside and noticed Mr Cassidy’s motor vehicle^[8].  Mrs Willmington said that her husband had his hands up saying, “Calm down, calm down”.  She said that Mr Willmington was walking backwards towards post 6.  She heard Mr Cassidy saying, “I’m going to fucking kill you, fuck you”.  She said that Mr Cassidy was screaming, he was irate, and his cheeks and eyes were red.  She called out that she was going to call the police and went to the kitchen for the purpose of doing so.  She returned and said that the police were coming and asked Mr Cassidy to let the police sort it out.  She said that Mr Cassidy had a knife and was making slashing movements.  She said that Mr Cassidy had her husband pushed up against post number 6.  She saw her husband trying to push the knife away from his throat.  She said that Mr Cassidy had one hand up around her husband’s shoulder and was holding the knife in the other hand.  Mrs Willmington said that Mr Cassidy repeatedly said, “Fuck you” and “I’m going to kill you”.  In her statement to the police dated 25 October 2000^[9], Mrs Willmington said that Mr Cassidy held the knife in an overhand manner and moved his arm backwards and forwards in a striking motion^[10].  She said that her husband continually told Mr Cassidy to “calm down”.  She asked Mr Ritchie, an apprentice chef employed at the restaurant, to call the police.  She told Mr Cassidy that the police were being called.  Mrs Willmington observed Mr Cassidy throw an object into the rear of his car.  She assumed it was the knife^[11].  Before departing Mr Cassidy said, “Kathy, I’m coming back to kill him”^[12].

24. [24]
    Mr Willmington also gave evidence of the occasions when Mr Cassidy sat in his car in the vicinity of the restaurant on Saturday, 4 November and Sunday, 5 November 2000^[13].

Scott McDonald

25. [25]
    Mr McDonald was employed as an apprentice chef at Donini’s byo Wishart.

26. [26]
    At about 11.45 pm on 24 October 2000 Mr McDonald was assisting Mr Willmington to stack tables and chairs on the veranda area.  He then noticed Mr Cassidy’s vehicle arrive.  He heard Mr Cassidy yelling and screaming, saying, “Why the fuck did you put these tables and chairs here?  I told you not to put them near the office”.  He said that Mr Cassidy continued to scream abuse at Mr Willmington.  He said that he was swinging chairs around and swinging his arms about.  He said that Mr Willmington was backing away with both hands at shoulder height and his palms facing outwards.  Mr Willmington continually asked Mr Cassidy to calm down.  Mr McDonald then said to Mr Cassidy, “Just calm down, buddy”.  Mr Cassidy then picked up a chair and threw it at Mr Willmington, who backed away.  The chair hit a post.  Mr McDonald then noticed that Mr Cassidy had a knife in his right hand.  He said that Mr Willmington stumbled into a post and that Mr Cassidy pinned him with his left hand around his throat, while holding the knife high above his head.  He said that Mr Cassidy was continuing to swear and yell.  Mr McDonald grabbed Mr Cassidy by the shirt and pulled him away from Mr Willmington.  Mr Cassidy then turned to face Mr McDonald and came at him with both arms in the air above his head.  He still held the knife in his right hand and was making a slashing motion.  Mr Cassidy then struck Mr McDonald in the right ear with the palm of his left hand.  Mr Cassidy then struck him in the chest with his right hand.  Mr McDonald feared that he had been stabbed.  However, Mr Cassidy evidently held the knife parallel to Mr McDonald’s chest.  He said that someone called out that the police were on their way and Mr Cassidy ran to his car and threw something on the back seat.  He then drove away.

27. [27]
    Mr McDonald also described the events of 4 and 5 November 2000, when Mr Cassidy drove slowly past the restaurant^[14].

Trent Ritchie

28. [28]
    Mr Ritchie was an apprentice chef employed at Donini’s byo Wishart. He was at work on the night of Tuesday, 24 October 2000. At about 11.45 pm he was in the pizza preparation area helping the kitchen-hand to clean up. He heard Mrs Willmington screaming and a male yelling.  When he went outside he saw Mrs Willmington running towards him, calling for him to ring the police.  He noted Mr Cassidy’s vehicle parked between posts 4 and 5, as illustrated on Exhibit 3^[15]He then called the police.  Mr Cassidy had left the premises by the time Mr Ritchie returned outside.

Jarrett Goos

29. [29]
    Mr Goos was employed as a casual waiter at Donini’s byo Wishart. He was in the kitchen washing up at about 11.45 pm on Tuesday, 24 October 2000, when he heard the sound of loud, abusive yelling coming from outside the restaurant^[16].  He went outside and saw Mr Cassidy, who was yelling and pointing at Mr Willmington.  He then saw Mr Cassidy grab Mr Willmington in the neck area and push him against a post.  He heard Mr Cassidy say that he was going to kill Mr Willmington.  He said that Mr Cassidy was holding a knife in a threatening manner, while holding Mr Cassidy by the throat or by the front of his shirt^[17].  He was holding Mr Willmington with his left hand and held a knife in his right hand.  He observed Mr McDonald intervene by placing his hand on Mr Cassidy’s shoulder.  He said that Mr Cassidy turned and struck Mr McDonald in the chest, causing him to fall backwards.  Mr Goos then grabbed Mr Willmington by the shirt in an endeavour to guide him backwards.  Mr Goos said that during the incident Mr Willmington held his hands up in what he described as a conciliatory gesture saying, “Calm down, calm down, Wayne”^[18].

Sarah Vasiliadis

30. [30]
    Sarah Vasiliadis was employed as a casual waitress at the restaurant. She was packing up tables and chairs in the pizza bar area of the restaurant at about 11.50 pm on 24 October 2000. She noticed Mr Cassidy’s green BMW sedan driving past slowly. The vehicle then stopped suddenly. She said that Mr Cassidy remained seated in the vehicle for about 20 seconds. He then got out and stumbled around the back of the car and began walking towards Mr Willmington and yelling. At that stage Mr Willmington was packing up tables and chairs further along the covered veranda. She said that Mr Cassidy was yelling, “What the fuck are you doing? What the fuck is going on?” She said that he just kept repeating those two things over and over. He then picked up some chairs and threw them towards Mr Willmington.  She said that he held his clenched fist above his head.  All of a sudden she saw a blade shoot out of Mr Cassidy’s right clenched fist.  He then yelled, “I told you before not to put your fucking chairs around here”.  She then saw Mr Cassidy pushing Mr Willmington with his left hand.  Mr Willmington was backing away the entire time and telling Mr Cassidy to “calm down”.  She said that Mr Cassidy then began swinging the knife at Mr Willmington, who stumbled backwards and almost fell to the ground.  She said that Mr McDonald attempted to intervene but Mr Willmington called out that Mr Cassidy had a knife and Mr McDonald backed off.  She said that Mr Cassidy then turned and jabbed the knife towards Mr McDonald.  She said that Mr Cassidy then picked up a chair and threw it towards Mr Willmington.

31. [31]
    Ms Vasiliadis said that Mr Willmington asked Mr Cassidy, “Do you want to stick around until the law arrive?” but Mr Cassidy returned to his vehicle and threw the knife into it before departing. She said that prior to leaving Mr Cassidy said, “I’m going to fucking kill you. I will kill you.” She said that at no stage did Mr Willmington provoke Mr Cassidy.  She said that throughout the incident he was backing away and telling Mr Cassidy to calm down.

Wayne Cassidy

32. [32]
    Mr Cassidy is a Chartered Accountant. Prior to 1997 he conducted his practice from his home at Wishart. In October 1997, he commenced to practice from an office at the Wishart Shopping Village. In December 1999 he became aware that Mr and Mrs Willmington had taken over the operation of Donini’s Restaurant. He had very little contact with them, although he had spoken to Mrs Willmington concerning the volume of music being played at the restaurant during the day time.

33. [33]
    On 24 October 2000 at about 3.00 pm, Mr Cassidy said that he spoke to Mr Willmington in relation to tables and chairs that he said were blocking access to his office and blocking passage along the veranda.  He says that Mr Willmington conceded, “we’ve really boxed you in there.”  Mr Cassidy says that Mr Willmington agreed to move the chairs in towards the table and to move a stack of grey chairs and four blue tables that he said were obstructing the passageway.  Prior to leaving his office at 4.30 pm Mr Cassidy said that nothing had been done to move the tables and chairs causing the obstruction.  He took two photographs^[19].

34. [34]
    Mr Cassidy said that he was particularly busy at this time following the introduction of the new tax system that required the lodgement of business activity statements with the Australian Taxation Office. He left his office at the Wishart Shopping Village at about 4.30 pm in order to prepare for a 5.00 pm appointment at his home office. As would usually occur, his mother stayed on Tuesday night and cooked him dinner. After that Mr Cassidy continued working. He explained that he generally worked very late into the night.

35. [35]
    After his mother had gone to bed, Mr Cassidy decided to take his uncompleted work back to the office.

36. [36]
    When he returned to the office he observed Mr Willmington and Mr McDonald on the covered veranda. He said that he had picked up his office key holder and a letter opener and was about to pick up the mail when he noticed that there were tables and chairs across the doorway to his office. He became frustrated because he claimed Mr Willmington had reneged on an agreement to move those tables and chairs. He walked on to the veranda and began to “roughly clear away” the chairs^[20].

37. [37]
    He said that Mr Willmington yelled at him “what do you think you’re doing, idiot?” He said there was a heated exchange. He continued clearing the chairs away and attempted to move the blue tables, but they were too heavy for him to shift with one hand. He said that Mr Willmington approached him and there was a repetition of the earlier exchange. Mr Cassidy said that he told Mr Willmington that he was not allowed to do what he was doing, but Mr Willmington replied that “he would do whatever he liked out here.” Mr Cassidy conceded that he used obscene language saying to Mr Willmington “what the fuck do you think you’re doing here?”  He says that Mr Willmington said “piss off”.  Mr Cassidy says that he repeated the obscenities mentioned before and that Mr Willmington continued to tell him to “piss off”.  He followed Mr Willmington along the veranda.  He then became aware that Mr McDonald was behind him.  He said that Mr McDonald was saying “fuck off”.  Mr Cassidy said that he ignored that, and continued his argument with Mr Willmington.  He said that Mr Willmington then pushed his hands out towards his body and face and was repeatedly saying “piss off”.  He then got a glimpse of something coming towards him from his left side and turned to see Mr McDonald lunging at him with a punch.  He was struck a glancing blow to the left side of his face.  He said that his movement avoided the full effect of the punch.  He said that he pushed his left arm towards Mr McDonald to fend off the punch.  At that stage Mr Willmington struck him with an open palm to the mouth.  He said that Mr Willmington then struck him with an open palm to the right shoulder.  The force of that blow caused him to lose balance and fall to the pebbled concrete.  He said that he got up quickly and Mr Willmington said to him somewhat sarcastically “How would you like us to call the police for you?”  He replied “No, I’ll let the centre manager take care of you.”^[21]   Mr Willmington then said “How would you like us to finish you off?”  Mr Cassidy viewed the threat seriously and said “Try that, and you will be dead first.”  He said that Mr Willmington and Mr McDonald moved towards him and he held up the office key holder and letter opener that he had in his left hand.  He backed away from them towards his car.  As he went past the rear of his car he noticed there was a green jumper hanging out of the door.  Although he could not remember opening the door, he said that the following day the jumper was inside the car, not hanging out.  He said that Mr Willmington and Mr McDonald stopped advancing towards him when he held up the letter opener and he was able to get into his car and drive away.  He said that he originally thought he would drive to the Upper Mt Gravatt Police Station but realised that his mother was at his home alone and he was fearful because one of the restaurant staff knew where he lived.

38. [38]
    On 25 October 2000, Mr Cassidy saw Dr Johnstone. He was prescribed Normison and Cipramil for stress.

39. [39]
    Mr Cassidy was charged by the police. His bail conditions evidently prevented him from having contact with Mr and Mrs Willmington and their staff^[22].

40. [40]
    Mr Cassidy conceded that he had driven in the vicinity of the shopping centre on 4 and 5 November 2000.  He explained that his primary reason for doing so was that it was his normal practice to attend at the shopping centre on weekends to inspect his office for any damage to windows or external air-conditioning and to see whether there had been theft, graffiti or vandalism.  He also said that the other reason for attending was “the very good reason that these Willmington people were failing to comply with what the centre manager informed me they had been instructed to do, namely, to keep their tables and chairs away from my side of the building and keep them in the line of their premises.”^[23]

41. [41]
    Mr Cassidy said that when he attended the shopping centre on 4 and 5 November 2000, he did not have any intention to intimidate Mr and Mrs Willmington or their staff. He said that he was very conscious that he was not to have direct contact with them. He said that he was very careful in the way that he attended at the shopping centre and attempted to inspect his property from the roadway^[24].

42. [42]
    He said that it was raining on 4 and 5 November 2000 and because Donini’s byo Restaurant had its blinds down between posts 5 and 6^[25], he was unable to inspect his office from the road.  He said that he simply drove through the shopping centre and observed what was happening.

43. [43]
    Mr Cassidy also gave evidence in support of his claim that Mr Willmington and Mr McDonald had harassed and annoyed him from November 2000 in circumstances where they knew or ought to have known that he would suffer fear and distress.  The conduct relied upon was:

1. (a)
   parking their vehicles near his office and staring into it for extended periods of time;

2. (b)
   positioning themselves near the corner of the shopping centre in the vicinity of his office and staring at him and his staff as they entered and left the office;

3. (c)
   walking past his office and staring into it;

4. (d)
   staring at him in public places.

44. [44]
    Mr Cassidy also contended that Mr and Mrs Willmington intentionally caused damage to his mental health by making continuous baseless allegations against him in written correspondence^[26].

45. [45]
    Mr Cassidy also called members of his staff at the relevant time, Susan Bathgate and her daughter, Sharon Sanzaro. They gave evidence in relation to some of the matters arising in respect of Mr Cassidy’s claim for harassment. They also gave evidence concerning the position of tables and chairs on the veranda during the afternoon of 24 October 2000.

Assessment of Credibility

46. [46]
    I was impressed by the evidence of Mr and Mrs Willmington and Mr McDonald. Although the cross-examination revealed some inconsistencies or contradictions, they were not such as to lead me to the view that their evidence should not be accepted. The event itself was traumatic. These witnesses had provided a statement to the police and then were cross-examined at earlier court proceedings. Having regard to the fact that the incident occurred over six years ago and these witnesses have given an account on a number of different occasions, it is not surprising that some inconsistencies would emerge. I therefore accept their evidence. Moreover the evidence of Mr Goos, whose evidence I also accept, supported the proposition that Mr Cassidy was the aggressor and that Mr Willmington was urging him to calm down.

47. [47]
    I also accept the evidence of Sarah Vasiliadis whose version generally supports that given by Mr Willmington. Although I accept Mr Ritchie’s evidence, he did not actually observe much of the incident itself.

48. [48]
    Mr Cassidy was an unimpressive witness. In my view he exaggerated the impact of the tables and chairs along the veranda. I do not accept that the tables and chairs were blocking access to his office when he returned to the shopping centre at about 11.45 pm on 24 October 2000.

49. [49]
    During cross-examination Mr Cassidy advanced conspiracy theories to explain the evidence. When asked by Mr Hackett why Mr Goos would participate in a conspiracy, Mr Cassidy said that he had been a skateboard rider who attended the centre some two years earlier and Mr Cassidy had spoken to him about that^[27].

50. [50]
    When asked why Sarah Vasiliadis (formerly Headland) would give false evidence, he said that she had chastised him one day at the shopping centre for reprimanding another restaurant employee for playing loud music in his car during a break^[28].  That incident had occurred prior to Mr and Mrs Willmington acquiring the restaurant.  Mr Cassidy explained that there was a “culture of dislike” towards him because he had been asking for the music to be turned down.  In my view these conspiracy theories are entirely baseless.

51. [51]
    During his evidence in chief Mr Cassidy explained that he held the letter opener and office key holder in his left hand. He emphasised that he was left handed^[29].  It is in the end unnecessary to decide whether he had a knife or a letter opener together with the office key holder.  It is nevertheless significant that the evidence of Mr Willmington and Mr McDonald that Mr Cassidy held the object in his right hand was not challenged.^[30]  When cross-examined by Mr Hackett as to which hand he used to move the tables and chairs, Mr Cassidy said that he used his right hand^[31].  When Mr Hackett put it to him that in order to move a heavy object like a table he would use both hands or his dominant hand being his left hand, Mr Cassidy said that his dominant side was in fact his right side.  He explained that he played golf, tennis and cricket right handed.  He said that the muscles down his back on the right side are a little stronger than those on his left.  He said he used his left hand for finer work like writing^[32]. On this aspect of the matter I regarded Mr Cassidy as disingenuous when he seemed to emphasise in evidence in chief that he was left handed.

52. [52]
    I formed the impression that Mr Cassidy was self righteous and became pre-occupied with issues concerning Donini’s byo, Wishart.

53. [53]
    At times Mr Cassidy was evasive. For instance Mr Hackett asked Mr Cassidy whether there was any physical impediment to him moving the tables and chairs on the afternoon on 24 October 2000. He responded by saying “I don’t think that I believe that I should touch other people’s property.”^[33]  Mr Hackett then clarified that he was not asking about Mr Cassidy’s beliefs and that the question was directed at whether there was anything physically restraining him from moving the furniture.  Mr Cassidy again replied by saying “it’s my belief that it was improper to interfere with somebody else’s business.”^[34]  He acknowledged that when he returned at about 11.45 pm that he moved the chairs roughly^[35].  He explained his change in attitude as being due to Mr Willmington having “reneged on his agreement not to put tables and chairs across my doorway.”^[36]  I have formed the view that there were no tables and chairs across Mr Cassidy’s office doorway.

54. [54]
    There were a number of matters that had not been put by Mr Kimmins to Mr and Mrs Willmington. When Mr Hackett cross-examined Mr Cassidy about that he explained that he was exhausted and had difficulty staying awake during the proceedings^[37]. It is difficult to reconcile his explanation with the very detailed knowledge of the evidence which he displayed during his lengthy diatribe towards the end of his evidence when he expounded his conspiracy theories^[38]. Moreover, Mr Willmington was re-called for further cross-examination on the morning of the third day of the trial.

55. [55]
    Overall I formed an unfavourable impression of Mr Cassidy. I do not accept his account of the incident on 24 October 2000.

Factual findings in relation to the incident on 24 October 2000

56. [56]
    There were a number of issues canvassed in the evidence which need not be resolved in order to determine the outcome of the case. For instance Mr Cassidy denied holding a knife, saying that throughout the incident he held the letter opener^[39] and the office key holder^[40].  Mr Willmington maintained that the letter opener was not similar to the knife used to attack him^[41]. Mrs Willmington also maintained that the letter opener was not similar to the knife^[42]. The evidence of Mr Goos was to similar effect^[43].  However when Mr McDonald was shown the letter opener and asked whether he had seen it before he said “I couldn’t tell you if it was exactly the same one”^[44].  His description of the blade of the knife was in some respects similar to the appearance of the letter opener^[45].  In the end as I have said it is not necessary to resolve this conflict in the evidence.

57. [57]
    A further issue that emerged was whether or not Mr Cassidy had been drinking.  Mr Willmington said that during the incident there was a strong smell of alcohol on Mr Cassidy’s breath^[46].  Mr McDonald described him as “stinking of alcohol”^[47].  Mr Cassidy denied consuming any alcohol^[48].  I am inclined to think that Mr Cassidy had been drinking but it is not necessary to conclude that he was intoxicated.  Whatever the explanation it is clear that he was in a rage.

58. [58]
    Although the standard of proof is on the balance of probabilities, the serious nature of the allegations influences the strength of the evidence required to discharge that onus^[49].

59. [59]
    I am satisfied that the following facts are established by the evidence:-

1. (a)
   Mr Cassidy attended at the Wishart Shopping Village at about 11.45 pm on 24 October 2000;

2. (b)
   following his arrival Mr Cassidy committed an assault and battery upon Mr Willmington by:-

• Verbally abusing him.
• Throwing a chair or chairs at him.
• Pushing him.
• Holding a knife or letter opener in his hand and waving or pointing it at him in a threatening manner.
• Grabbing him round the collar of the shirt or throat area and either pushing or holding him against a post.
• Holding the knife or letter opener to his throat.
• Telling him that he was going to kill him.

3. (c)
   Mr Cassidy committed an assault and battery upon Mr McDonald by:

• Verbally abusing him.
• Striking him with his hands.
• Holding the knife or letter opener in his hand and waving or pointing it at him in a threatening manner.
• Striking him in the chest while holding the knife or letter opener in his hand.

4. (d)
   There were no tables and chairs blocking access to Mr Cassidy’s office at the relevant time.  There was no operative nuisance at about 11.50 pm on 24 October 2000 as the tables and chairs along the veranda were being put away, which must have been obvious to Mr Cassidy.

5. (e)
   Mr Cassidy was not verbally abused by Mr Willmington or Mr McDonald, as alleged in para 14 of the defence and counter-claim.

6. (f)
   Neither Mr Willmington nor Mr McDonald assaulted Mr Cassidy as alleged in para 15 of the defence and counter-claim.

7. (g)
   Mr Cassidy was not acting in self defence or as a result of provocation as alleged in paras 16 and 18 of the defence and counter-claim.

8. (h)
   Mr Cassidy’s assaults cannot be justified on the grounds that he was abating a nuisance as alleged in para 17 of the defence and counter-claim.

1. (i)
   Mrs Willmington witnessed the assaults and heard the threats and suffered adverse consequences as a result.

10. (j)
    There was no conspiracy or collusion between Mr and Mrs Willmington, Mr  McDonald or any of the witnesses called in their cases.

Mr Cassidy’s claims for harassment and intentional infliction of harm

60. [60]
    Mr Cassidy’s claim in para 21 of the defence and counter-claim is made against Mr Willmington and Mr McDonald.  It is contended that they engaged in conduct such as parking their vehicles near his office and staring at him for extended periods of time and staring at him in public places.  The cause of action pleaded in para 22 is that Mr and Mrs Willmington have made continuous baseless allegations against him in various written correspondence^[50].

61. [61]
    Mr Hackett argues that the causes of action pleaded in paras 21 and 22 are statute barred by s 11 Limitation of Actions Act 1974.  He argues that the facts upon which the cause of action in paras 21 and 22 are dependent arise between the date of the assault on 24 October 2000 and the date of the last item of correspondence in Exhibit 13 which was a letter from Mr and Mrs Willmington’s solicitor to the Director of Public Prosecutions dated 30 October 2002.  Accordingly he submits that the action was statute barred from 30 October 2005.

62. [62]
    It is argued that as the action was introduced into the defence and counterclaim filed 25 January 2006, pursuant to leave granted on 29 November 2005, it is statute barred.

63. [63]
    Mr Kimmins draws attention to the wide power to permit an amendment to include a new cause of action in r 376(4) Uniform Civil Procedure Rules 1999. Mr Hackett draws attention to r 387 which provides that an amendment including a new cause of action takes effect from the date of the order granting leave (r 387(2)).  However, r 387(3) provides that in respect of an amendment including a new cause of action, for the purposes of the limitation period, the proceeding as amended is taken to have started when the original proceeding started, unless the court orders otherwise.

64. [64]
    On 14 November 2005, Mr and Mrs Willmington and Mr McDonald filed an application seeking an order pursuant to r 483 that the principal liability issues be tried in advance of the remaining issues. The application came before McGill SC DCJ on 29 November 2005. His Honour directed that Mr Cassidy file an amended defence and counterclaim. Mr Hackett explained that the order was made “because the existing pleading was a mishmash”^[51].  It was directed that the amended pleading be filed and served by 16 January 2006.  The substantive application was adjourned to 30 January 2006.  It is clear that the direction to file the amended pleading did not give rise to a consideration of the issue of the addition of a new cause of action.

65. [65]
    The amended pleading was not filed until 25 January 2005. There is a notation by the Registry on the back of the document stating “Filed upon the insistence by client/solicitor notwithstanding irregularities”.

66. [66]
    On 30 January 2006, McGill SC DCJ made the order for separate determination of the quantum of Mr Cassidy’s claim. His Honour also ordered the amendment of the defence and counterclaim by the correction of a typographical error.

67. [67]
    It is therefore clear that there has been no consideration of whether it is appropriate to give leave to include the new causes of action. Mr Kimmins submitted that:

“We’re suggesting that under the rules, under 375, 376 there was an amendment which has been made and if leave has not been formally sought we would seek the leave to make the amendment.”^[52]

68. [68]
    I have some doubt that the new causes of action could be said to arise out of the same facts or substantially the same facts, which is an essential requirement for the grant of leave to add the new causes of action. In Draney v Barry^[53], Thomas JA said:

“I do not think that ‘substantially the same facts’ should be read as tantamount to the same facts, and consider that the need to prove some additional facts is not necessarily fatal to a favourable exercise of discretion under Rule 376(4).  If the necessary additional facts to support the new cause of action arise out of substantially the same story as that which would have to be told to support the original cause of action, the fact that there is a changed focus with elicitation of additional details should not of itself prevent a finding that the new cause of action arises out of substantially the same facts.  In short, this particular requirement should not be seen as a straitjacket.”^[54]

69. [69]
    However, the issue need not be decided on this basis as I have had the opportunity to consider the merits of the action.

70. [70]
    Although I consider that the causes of action in paras 21 and 22 are statute barred, I have nevertheless reached a firm conclusion that Mr Cassidy’s case cannot be accepted. I have already expressed the view that Mr Cassidy was an unsatisfactory witness. The evidence of Mrs Bathgate and Mrs Sanzaro did not entirely support his case. There was a significant contradiction between them as to who occupied the front desk. Mrs Bathgate said that she sat at the front desk whereas Mrs Sanzaro said that her mother occupied the back office while she sat at the front desk. I formed the impression that Mr Cassidy exaggerated the conduct complained of in para 21 of the amended defence and counter-claim. I preferred the evidence of Mr Willmington^[55] and Mr McDonald^[56].  They denied in engaging in any such conduct.

71. [71]
    There is no evidence that the correspondence contained in Exhibit 13 was written with the intention of causing damage to Mr Cassidy’s mental health as is contended in para 22 of the amended defence and counter-claim. The correspondence is largely between Mr and Mrs Willmington’s solicitor and Shopping Centre Management. There are also two letters to the Director of Public Prosecutions concerning the criminal proceedings against Mr Cassidy. I consider that the action pleaded in para 22 is statute barred by s 11 Limitation of Actions Act 1974, but in any event I would dismiss it on the footing that there is no evidence that Mr and Mrs Willmington acted with intention to cause damage to Mr Cassidy’s mental health.  As I have reached the conclusion that the actions are futile it would be inappropriate to give leave to add them.

Medical Evidence

72. [72]
    Mr and Mrs Willmington saw Dr Stephen Hinchy at his Woodridge surgery on 26 October 2000.  In his report,^[57] Dr Hinchy said that Mr and Mrs Willmington were visibly upset.  After lengthy discussions, he said that they elected to endeavour to control their feelings of anxiety and fear of a further assault without the use of medication.  On a subsequent occasion Mr Willmington remained upset and Dr Hinchy suggested that he may need psychiatric assistance.  However, that was not progressed any further because the Director of Public Prosecutions evidently arranged for a psychiatric assessment for Mr and Mrs Willmington and their staff.

73. [73]
    Dr Hinchy has known Mr and Mrs Willmington for approximately 20 years. At one stage Mrs Willmington worked as his receptionist. He expressed the view that they were “pretty strong people” and he expected that their anxiety and stress would settle^[58].  In the normal course of events he would have expected their condition to settle in two to three months.  However, as a consequence of ongoing harassment by an unknown person, their condition did not settle as expected.

74. [74]
    Mr and Mrs Willmington were also treated by Mr Philip Barham, a chiropractor at the Wishart Shopping Centre. He saw Mrs Willmington on 25 October 2000. He said that she appeared to be stressed and emotional. She exhibited a degree of muscular spasm and general restriction to her spinal mobility that had not been present on earlier visits to him.

75. [75]
    Mr Barham saw Mr Willmington later the same day. In his report dated 25 June 2001^[59] Mr Barham says that Mr Willmington had restricted range of cervical movement, swelling of the soft tissues to the neck and noticeable restriction of movement to the lower back.  He says that on subsequent occasions Mr and Mrs Willmington reported that they had experienced an inability to sleep, a constant nervous feeling while at work, an increase in digestive upsets and increased frequency of headaches.

76. [76]
    Mr and Mrs Willmington and Mr McDonald were seen by Peter Perros, psychologist, who provided separate reports^[60].

77. [77]
    Mr Perros interviewed Mr and Mrs Willmington on 20 January 2003. He interviewed Mr McDonald on 10 February 2003. In Mr and Mrs Willmington’s cases the assessment of their psychological condition was complicated by the fact in the period following the assault, they experienced considerable harassment. For instance, Mr Perros mentioned that he had been told that plastic blinds at the restaurant had been slashed and that posters had been placed around the neighbourhood warning of food poisoning at the restaurant. On one occasion a motor cyclist circled Mrs Willmington outside the restaurant. There were graffiti attacks at the restaurant^[61].  He agreed with Mr Kimmins that there were a significant number of other events in the two year period following the assault on 24 October that would have caused stress^[62].  I am nevertheless satisfied that Mr Perros has attempted to isolate the impact of the assault in formulating his opinion.

78. [78]
    Mr Willmington told Mr Perros that he experienced nightmares and symptoms of phobic anxiety for several months after the accident. I accept the opinion of Mr Perros that Mr Willmington suffered a degree of nervous/mental shock that he says was more moderate than mild, as a result of the assault.  He stated that Mr Willmington’s symptoms would have resolved after three to six weeks if Mr Cassidy had moved from the premises^[63].  He expressed the view that Mr Willmington’s symptoms would have lasted a little longer, but perhaps only by a period of some days as a result of the stalking conduct of Mr Cassidy on 4 and 5 November 2000.

79. [79]
    Mr Perros said that Mrs Willmington suffered a moderate degree of nervous/mental shock as a result of having witnessed the assault^[64].  He also expressed the view that he would have expected her symptoms to resolve in four to six weeks^[65].  However, he considered that her symptoms would have been prolonged by a period of days to weeks as a result of the stalking conduct of Mr Cassidy on 4 and 5 November 2000^[66].  He said the incident had “quite a significant psychological impact upon her”^[67].

80. [80]
    Mr McDonald told Mr Perros that he was very upset and anxious for approximately one to two months after the assault. He did not fully recover until he commenced working at The Hilton in early to mid 2002. Mr Perros expressed the opinion that Mr McDonald suffered a moderate degree of nervous/mental shock immediately after the assault. He said that the stress was sufficient to cause him to become dysfunctional at work and to experience poor sleep and other symptoms of distress. Nevertheless, Mr Perros stated that he would have expected Mr McDonald’s condition to resolve fairly shortly after the incident.

Damages

81. [81]
    I am satisfied that Mr Willmington suffered mental/nervous shock of relatively short duration. In his case I would allow $10,000 for general damages. Mr Willmington also claims special damages of $1,762.90, which is admitted.

82. [82]
    There is no doubt that Mrs Willmington found the incident very distressing. She said and I accept, that when Mr Cassidy left the premises on 24 October 2000 he called out, “Kathy, I’m coming back to kill him”^[68].  Although she experienced a number of other stressors following the incident, I am satisfied she suffered a moderate degree of nervous shock for a relatively short period of time which is attributable to her having witnessed the attack on her husband.  In her case I would allow general damages of $7,500.  There is also a claim for special damages of $773.15, which is admitted.

83. [83]
    Mr McDonald was traumatised by the incident. At the time he was an 18-year-old apprentice chef. When the knife was placed against his chest, he thought that he had been stabbed^[69].  I accept that Mr McDonald suffered a moderate degree of nervous shock, but I consider that it endured for longer than the two weeks estimated by Dr Perros^[70].  I note that according to the report of Mr Perros, Mr McDonald told him that following the incident he experienced sleep disturbance and nightmares.  He took sleeping tablets over a four week period.  His appetite was affected for one week.  He struggled to remain focussed at work and it was 10 days before his concentration returned to near normal levels.  Following the assault, Mr McDonald’s alcohol consumption increased and uncharacteristically he drank to excess for a period of two months.  He left Donini’s Restaurant at the end of February 2001 and his health gradually improved.  He commenced employment at a café in New Farm, but continued to experience stress.  He remained there for two and a-half to three weeks^[71].  He was then out of work for five to six weeks.  In the circumstances, I assess general damages at $10,000.  There is also a claim for special damages of $22.10 which is admitted.  Mr McDonald also claims past economic loss of $1,466 for the five week period during which he was unemployed.  Mr Hackett points out that Mr McDonald’s evidence on this aspect was not challenged.  Mr Kimmins argues that there should be no allowance for past economic loss because Mr McDonald left Donini’s Restaurant “of his own volition for a myriad of reasons”.  Mr McDonald said that following the incident work became very difficult^[72].  Although some of the difficulties he experienced may well have been attributable to a number of reasons, I am satisfied that the incident on 24 October 2000 was a significant factor.  I therefore allow $1,466 for past economic loss.

84. [84]
    Mr and Mrs Willmington and Mr McDonald also claim aggravated and exemplary damages.

85. [85]
    In Lamb v Cotogno^[73] the High Court explained the distinction:

“Aggravated damages, in contrast to exemplary damages, are compensatory in nature, being awarded for injury to the plaintiff’s feelings caused by insult, humiliation and the like.  Exemplary damages, on the other hand, go beyond compensation and are awarded ‘as punishment to the guilty, to deter from any such proceeding for the future and as proof of the detestation of the jury to the action itself.’  Wilkes v Wood”^[74].

86. [86]
    In my view Mr Cassidy subjected Mr and Mrs Willmington and Mr McDonald to a very distressing ordeal. His subsequent conduct in driving slowly past the restaurant on 4 and 5 November 2000 appears to have been designed to increase the level of intimidation. In these circumstances I consider that it is appropriate to make an allowance for aggravated damages.

87. [87]
    Mr Cassidy’s conduct in threatening to kill Mr Willmington while pointing a knife or letter opener at him is extremely serious. It is clear that Mr Willmington was retreating during the incident. His assault upon Mr McDonald was also serious. In the circumstances I consider that it is appropriate to make an award for exemplary damages. In New South Wales v Ibbett^[75] the High Court said:

“In cases where the same circumstances increase the hurt to the plaintiff and also make it desirable for a court to mark its disapprobation of that conduct, the court may choose to award one sum which represents both heads of damages and no element more than once.  Such an approach was adopted by Bray CJ in Johnstone v Stewart.”^[76]

88. [88]
    In the circumstances I consider that the appropriate awards for aggravated and exemplary damages are those sought by Mr Hackett which are as follows:-

89. [89]
    Mr Hackett submitted that interest should be allowed on general, aggravated and exemplary damages at the rate of 2% per annum for the period since 24 October 2000. He submitted that interest should be awarded on special damages at the rate of 6% per annum for the entire period. Mr Kimmins did not oppose those submissions. I will therefore allow interest as submitted by Mr Hackett, with the exception that I consider that interest on Mr McDonald’s past economic loss should be awarded for a slightly lesser period of six years having regard to the fact that his period of unemployment concluded at about the end of April 2001.

90. [90]
    I therefore assess damages in Mr Willmington’s case as follows:

General damages$10,000.00

Aggravated and exemplary damages$5,000.00

Interest on $15,000 at 2% per annum for 6.5 years$1,950.00

Special damages$1,762.90

Interest on special damages at 6% per annum for 6.5 years$687.50

Total$19,400.40

91. [91]
    In Mrs Willmington’s case I assess damages as follows:-

General damages$7,500.00

Aggravated and exemplary damages$2,500.00

Interest on $10,000 at 2% per annum for 6.5 years$1,300.00

Special damages$773.15

Interest on special damages at 6% for 6.5 years$301.50

Total$12,374.65

92. [92]
    I assess Mr McDonald’s damages as follows:

General damages$10,000.00

Aggravated and exemplary damages$2,500.00

Interest on $12,500 at 2% per annum for 6.5 years$1,625.00

Special damages$22.10

Interest on special damages at 6% per annum for 6.5 years$8.60

Past economic loss$1,466.00

Interest on past economic loss at 6% for 6 years$527.80

Total$16,149.50

Summary

1. (a)
    Judgment for the first plaintiff, Mr Willmington against the defendant, Mr Cassidy in the amount of $19,400.40.

2. (b)
   Judgment for the second plaintiff, Mrs Willmington against the defendant, Mr Cassidy in the amount of $12,374.65.

3. (c)
   Judgment for the third defendant by counter-claim Mr McDonald against Mr Cassidy in the amount of $16,149.50.

4. (d)
   The action by the plaintiff by counterclaim Mr Cassidy for assault is dismissed.

5. (e)
   The action by the plaintiff by counterclaim Mr Cassidy for harassment and intentional infliction of harm is dismissed.

93. [93]
    I will hear submissions in relation to costs.