1. This is a claim for damages for personal injuries arising out of an assault which happened in the evening of 13 June 1996 in Corozal Town. The defence is that the injury was caused as a result of the Defendant's action taken in necessary self-defence. I heard the case on 18 April 2000. Only the Plaintiff and the Defendant gave evidence.

2. The Plaintiffs story was that he pulled up in his van outside "Guns and Roses" restaurant to buy a fried chicken. As he was trying to remove the key from the ignition with the driver's door open and his left foot out of the van the Defendant came up and slammed his foot with the door three times and slapped him in the face. The Defendant then left on his bicycle but a few minutes later the Plaintiff heard him cursing and insulting him and saw that he had returned with a machete. The Plaintiff was still inside the van and went to lock the doors. The Defendant smashed one of the windows with his machete and then went to the back of the van and climbed in before the Plaintiff could lock the back door. He said "Now I will finish you" and came at the Plaintiff with the machete. There was no room to swing it but he was able to stab at the Plaintiff. One stab got the Plaintiff on the inside of his left arm near the elbow and caused a deep and serious wound about six inches long. The Plaintiff then grabbed at the machete and suffered a further cut between his right thumb and forefinger. He was then able to pick up the spare tyre (which was slashed by the Defendant) and push the Defendant out of the van, from where the Defendant made his escape. The Plaintiff also told me of two previous unprovoked assaults by the Defendant; on the latter occasion, which was about three weeks before this incident, he had shouted: "I have not finished 'til I cut off your head and kick it like a ball".

3. The Defendant's account was rather different. He said he was riding his bicycle past "Guns & Roses" and the Plaintiff was standing outside the van. As he passed the Plaintiff he started to insult him and pushed him from his bicycle. He went to his van, opened the door and took out a large spanner. He swung it at the Defendant and tried to hit him but accidentally hit the side window of the van and broke it. He took another swing. The Defendant used his bicycle to fend off the blow. The Plaintiff let go of the spanner and it ended up by the side of the road. The Plaintiff went to get it. While he was bending down the Defendant got his machete off his bicycle and hit him on the back with a flat side. The Plaintiff grabbed the machete under his left arm from behind and held onto it. As the Defendant pulled it away it cut the plaintiff on the inside of his left arm. The Defendant then fled on his bicycle. He also told me that the Plaintiff always started insulting and attacking him and members of his family when he was drunk. It had only emerged in cross-examination of the Plaintiff that he had been married to the Defendant's elder sister and had three children by her, that they had been divorced a year or so earlier and that he had indeed been drinking on 13 June 1996.

4. I have found it extremely difficult to decide where the truth lies in this case. The Plaintiff was quite an impressive witness when he gave his evidence-in-chief but under cross-examination he was much less impressive: I found it very odd that he had not chosen to tell me about the family relationship with the Defendant, there were times when he virtually refused to answer questions (particularly about his divorce and the arrangements for access to and support for the children) and he was completely unable to deal properly with questions about his special damages claim. The Defendant was a reasonable witness but his demeanour outside the witness box was not encouraging. Ms Pitts for the Plaintiff sought to rely on the fact that the Defendant had been convicted of an assault on the Plaintiff by the Magistrate's Court in Corozal and referred me to s.l39 of the Summary Jurisdiction Procedure Act (Cap l00) which, she said, meant that the conviction was prima facie evidence that the Defendant had committed the offence. I am quite satisfied that s.139 does not have the radical effect for which she contended; in my judgment, it is clearly designed to provide a simple means of verifying what has happened before the Magistrate (i.e., in this case, that the Defendant was convicted) and not to circumvent the rule in Hollington v. Hawthorn [1943] KB 587 which is that a conviction by another tribunal on the evidence adduced before that tribunal is irrelevant to the issue of whether in fact the offence was committed. Ms Pitts also cross-examined the Defendant to the effect that he had made various admissions and inconsistent statements before the Magistrate but she was not in a position to put to him a properly verified copy of the transcript of his evidence at the earlier trial and I am therefore not able to take any account of those matters.

5. I am left therefore only with the inherent probabilities. On this basis, I marginally prefer the Defendant's evidence. I note the following points in particular:

   (a) it seems to me more likely that a window would be broken by a spanner than by a machete;

   (b) the Plaintiff's scar looked more consistent with the blade having been pulled away from him in the way described by the Defendant than with an injury inflicted by a stabbing;

   (c) it was perhaps unlikely that the Defendant, who was smaller and younger, would have got into a confined space with the Plaintiff, having already incensed him by banging his foot, when his only weapon (a machete) could not be used properly because there was insufficient space;

   (d) the Plaintiff had undoubtedly been drinking (this was confirmed by the hospital notes from Corozal).

6. Assuming the Defendant's evidence is accurate, I must still decide whether he has made out his defence of self-defence. Mr Dujon invited me to consult the relevant part of Clark & Lindsell (para 29-02). As is well known, reasonable force may be used in self-defence and, as the editors say, "the law does not require that a man labouring under a natural feeling of resentment consequent on gross provocation should very wisely measure the weight of his blows". I was concerned in this case that the Defendant ought to have fled the scene on his bicycle at the point when the Plaintiff went to pick up the spanner. When asked about this he stated that he did not cycle home because he was "mad" and he accepted that in hitting the Plaintiff on the back there was an element of retaliation, this being the second time that the Plaintiff had made an unprovoked attack. On balance I think, taking account of the position he was put in and the gross provocation he was under, the Defendant's actions did amount in law to reasonable self-defence. It follows that the Plaintiff's claim must fail.

7. In case I am wrong in this conclusion (particularly in relation to s.139), and I should have accepted the Plaintiff's account, I should indicate the damages that I would have awarded. I think the proper figure for general damages is $7,500. Of the special damages claimed, I would have awarded $3,000 for medical expenses, $55 for clothes, $4,700 for hiring a driver, $150 for the tyre and $800 for the carpeting in the van. I would have rejected the other special damages claimed because the Plaintiff was unable to substantiate them properly in cross-examination.

8. In any event, I dismiss the Plaintiffs claim in its entirety. As I said at the conclusion of the trial, I very much hope that the feud that had clearly developed between the Plaintiff and the Tzul family has now calmed down and that the parties can live in peace. Although for logistical reasons it will be difficult for me to receive submissions on costs my strong inclination would be to say "No order as to costs", a view I hope the parties will be able to respect without taking the matter further.

SHANKS J
4 May 2000