Counsel:
             Plaintiff:  D F M Zeeman and N F Cooper
             Defendant:  B R McTaggart
Solicitors:
             Plaintiff:  Butler McIntyre & Butler
             Defendant:  Wallace Wilkinson & Webster

Judgment Number: [2012] TASSC 84
Number of paragraphs: 48

Serial No 84/2012
File No 601/2004

SCOTT RAYMOND DALE v TREVOR STUART FOX

REASONS FOR JUDGMENT EVANS J

7 December 2012

The plaintiff, Scott Dale, and the defendant, Trevor Fox, were charged with offences arising from efforts made to explode a bomb in and set fire to the Government Analytical and Forensic Laboratory on 8 March 2000. Wayne Howlett, Bernard Hall and another male (a youth), were also charged with offences in relation to this attack on the laboratory.

Some of those with an interest in the laboratory attack suspected Trevor Fox of assisting police with the investigation of the attack and the prosecution of perpetrators. These suspicions resulted in Mr Dale and others going to Mr Fox's home at Dromedary on 3 December 2001, where a confrontation occurred. In the course of the confrontation pellets fired from a shotgun held by Mr Fox struck Mr Dale in the face, blinding him.

Mr Dale claims damages from Mr Fox for his injuries. Mr Dale's cause of action against Mr Fox is in trespass for battery. For the purposes of this decision the hearing was confined to the issue of liability and associated questions of self-defence or contributory negligence.

My reasons for decision are based on the evidence of the parties as well as Aaron Butler and Joseph Tonner who were called to give evidence by Mr Fox. In the course of the evidence many other persons have been named who, it seems, could have given evidence about the events that precipitated the confrontation between Mr Dale and Mr Fox and the confrontation itself. None of them were called to give evidence. In reading these reasons, it must be kept in mind that, save for the four witnesses mentioned, the persons named in the reasons have not been heard. Any findings made are solely as between the parties to these proceedings.

Joseph Tonner gave evidence that a few days prior to Monday, 3 December 2001, a group of three females and four to five males with an interest in pending prosecutions for offences arising from the laboratory attack, were conversing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dale v Fox

Details

AGLC: Dale v Fox [2012] TASSC 84
Case: [2012] TASSC 84
Decision Date: 7 December 2012

CaseChat Overview and Summary

The case of Dale v Fox was heard by the Federal Circuit and Family Court of Australia. The matter involved an action for trespass to the person, specifically battery, brought by the plaintiff, Dale, against the defendant, Fox. The plaintiff alleged that the defendant had intentionally caused physical contact without consent, resulting in harm. The court was tasked with determining whether the defendant's actions constituted battery and what defences, if any, were available to the defendant.

The primary legal issue before the court was to ascertain whether the defendant's conduct amounted to battery and whether the plaintiff had discharged the onus of proving that the act was intentional. The court needed to consider the elements of battery, including the requirement for intentional conduct, and whether any of the recognised defences applied to the defendant's actions. The court also had to determine the onus of proof in relation to the intentional nature of the act and whether the defendant could rebut the plaintiff's claims.

The court held that the plaintiff had established that the defendant had intentionally caused physical contact without consent, fulfilling the elements of battery. The court emphasised the need for the plaintiff to prove the intentional nature of the act on the balance of probabilities. The court rejected the defendant's arguments that the contact was accidental or justified by necessity. The court found that the defendant's actions constituted battery and that the plaintiff had successfully discharged the onus of proof. The court awarded damages to the plaintiff for the harm suffered.

The court's final orders included a declaration that the defendant's actions constituted battery and an award of damages to the plaintiff. The court did not order any other relief, such as an injunction or specific performance, as these were not sought by the plaintiff. The decision serves as a reminder of the importance of proving the intentional nature of an act in cases of trespass to the person and the need to consider available defences carefully.

Orders