DEVENPORT v WILSON - [2009] SASC 336

Supreme Court of South Australia
(Magistrates Appeals: Civil)
DEVENPORT v WILSON
[2009] SASC 336
Judgment of The Honourable Justice Duggan
5 November 2009
TORTS - TRESPASS - TRESPASS TO THE PERSON - WHAT CONSTITUTES AND DEFENCES THERETO - ASSAULT
TORTS - TRESPASS - TRESPASS TO THE PERSON - ACTION FOR DAMAGES - ONUS OF PROOF
Appeal against dismissal of action for assault - whether Magistrate erred in application of onus of proof as to self-defence - appeal allowed - order of dismissal of action set aside - judgment entered for the appellant against the respondent for damages to be assessed.
Pearce v Hallett [1969] SASR 423; Howard v Wing [2000] TASSC 147; Underhill v Sherwell [1997] NSWCA 325, considered.

DEVENPORT v WILSON
[2009] SASC 336
Magistrates Appeal: Civil

DUGGAN J: The appellant was the plaintiff in an action for damages for an assault against the respondent. The trial of the action took place before a Magistrate exercising the civil jurisdiction of the Magistrates Court. The appeal is against the dismissal of the action by the Magistrate. The central point in the appeal is whether the Magistrate erred by failing to properly apply the onus of proof to the facts of the case on the issue of self-defence.
The action arose in the following way. The appellant is 42 years of age. On 4 June 2006 he assisted his girlfriend, Rachel Davis, to transport a lounge suite from a furniture store to her home. Ms Davis is the former partner of the respondent.
According to the appellant and Ms Davis, the respondent rang Ms Davis while the appellant was still at her house. They said he made threats in relation to the appellant over the telephone. The appellant said in evidence that he then drove to his own home, parked his car in the front yard and that the respondent arrived shortly afterwards.
The appellant said in evidence that the respondent walked towards him in the front yard and started punching him. According to the appellant the respondent delivered a hard blow to the appellant’s nose and punched him again in the face. There was a third punch to the forehead.
The appellant said that they then started wrestling and the appellant fell onto a water meter which was located in the front yard. The appellant said he fell backwards onto the water meter and sustained an injury to his ribs. He said the respondent was with a friend who came over and led the respondent back to his car.
The appellant was taken to the Gawler Hospital where he was examined by Dr Mark Reid. Dr Reid said the appellant was bleeding from the nose which was swollen. There was a lot of bruising to the forehead, nose and the right cheekbone. There were a few minor abrasions to the right ear. Injuries to the lips indicated that they had been forced against the appellant’s teeth. Radiological examination demonstrated a fracture to the tenth rib on the left side. There was no injury to the lungs.
There were two fractures of the nasal bones. According to Dr Reid, it would have taken two blows to cause the injuries to the nose. He said it would require a significant amount of force to cause the fracture which was at the tip of the nose.
The respondent gave evidence. He said that when he was living with Ms Davis he gave her a set of keys to his house. He said he had asked for the return of the keys but had not received them. He said on the day of the incident he rang Ms Davis on about three occasions. He said that the conversations were mainly about their son Matthew, but he said he also discussed the return of the keys. He told Ms Davis that he was annoyed that they had not been returned to him. According to the respondent Ms Davis said she would be at the appellant’s house later and the respondent could collect the keys then.
In her evidence Ms Davis denied that the telephone calls related to their son. She said there was no mention of the keys. She said the respondent made threats against the appellant during the calls.
The respondent said he drove to the appellant’s house and saw the appellant in the front yard. The respondent said he walked towards the front door shouting “where are my fucking keys?”. He said the appellant then walked towards him at a fast pace with his right hand at his side. The appellant’s fist was clenched. The respondent said he concluded that the appellant was going to attack him. He said the appellant then punched him on the forehead. The respondent then hit back striking the appellant a hard blow on the nose.
The respondent said the appellant then placed him in a headlock and they fell to the ground. He said the appellant fell on his back on the water meter. At this stage they had hold of each other. The respondent said the appellant scratched the respondent’s face while they were on the ground. The respondent then got up and left the premises.
The respondent was accompanied to the house by a friend, Stuart Cheer. Mr Cheer said they were at a barbecue and the respondent said something about collecting his keys. They drove to the appellant’s home. Mr Cheer said he missed seeing the earlier part of the altercation, but he said he saw the appellant holding the respondent in a headlock. They were grappling with each other. Then he said he saw them both fall to the ground with the respondent on top of the appellant. He said that they were just holding each other.
It was not in dispute that the appellant’s ribs were broken when he fell on his back on the water meter. The Magistrate said that the meter is close to the front perimeter of the house and that this made it seem more plausible that the appellant moved towards the respondent before the respondent had a chance to advance onto the appellant’s property to any significant extent.
The Magistrate expressed some concerns about aspects of the evidence of the appellant and the respondent and concluded:
Having considered all of the evidence I’m left with two directly opposed versions of the incident in question, there were no other eye witnesses to the incident, Mr Cheer did not see the start of it, he only saw the latter part when both were grappling on the ground and he confirmed that no blows were being struck then. The plaintiff says that he was the victim of an unprovoked attack by the defendant, the defendant says that the plaintiff was the aggressor and he was merely defending himself and there is no evidence to suggest that the force he used was out of proportion to the danger he was seeking to avoid. I am therefore left in a state of uncertainty as to who the aggressor was and therefore the plaintiff has failed to discharge the onus of proving an assault by the defendant in the [manner] alleged; the plaintiff’s case therefore must fail.
Earlier in his reasons, the Magistrate stated that the onus of proving that the respondent acted in self-defence rested upon him. He referred to Pearce v Hallett[1] and Howard v Wing.[2] Both of these cases involved civil actions for assault where each party had used force against the other party.
[1] [1969] SASR 423.
[2] [2000] TASSC 147.
The proceedings in Pearce v Hallett arose out of an altercation between a father and son on the one hand and the plaintiff on the other. The plaintiff claimed damages for assault against the father and the son; the father claimed damages for assault by way of counterclaim against the plaintiff. The claim and counterclaim were successful. After reviewing a number of early authorities, Bray CJ said:[3]
If the position is, as in McClelland v Symons, that one blow would have been justified in self-defence but further blows would not and the plaintiff alleges several blows and the defendant admits only one, then the onus of proving the further blows must, I think, be on the plaintiff. Each alleged blow is really a different assault and the plaintiff has the onus of proving each assault. On the other hand, where it is not the number of blows alleged by the plaintiff but their nature and reasonableness which is in dispute, then once the plaintiff proves the blows it seems to me that the onus passes, or at any rate ought to pass, to the defendant to justify them, not only with reference to the necessity form some force but as to the necessity for the particular force.
(Footnote omitted)
[3] [1969] SASR 423 at 428.
Pearce v Hallett was followed in Howard v Wing. Crawford J said:[4]
The plaintiff bore the onus of proving that the first defendant applied force to him and that such force caused his injuries for which he seeks damages. The first defendant admitted applying force to the plaintiff by striking him with three or four blows but it was his case that he did so in lawful self-defence. The onus of proving that he so acted in self‑defence rested upon him. Pearce v Hallett. He needed to prove that he or his daughter were in imminent danger from the plaintiff, that he had an honest and reasonably held belief that he needed to act in the way he did to defend himself or his daughter and that the force he used was not out of proportion to the danger he was seeking to avoid.
(Citation omitted)
[4] [2000] TASSC 147 at [38].
Pearce v Hallett was also applied by the New South Wales Court of Appeal in Underhill v Sherwell.[5] Beazley JA, with whom Meagher and Sheller JJA concurred, said:[6]
… It is suggested in McClelland v Symons at 169-171 that where the plaintiff has established the assault and battery complained of, and the defendant has proved justification, or self defence, the onus rests upon the plaintiff to show that the act of self defence was excessive. This proposition was considered by Bray CJ in Pearce v Hallett [1969] SASR 423. His Honour stated at 428:
“I cannot think that under modern conditions the onus of proof can be affected by the form of pleading, still less that a plaintiff who replies specifically alleging excessive force thereby assumes a burden which would not otherwise fall upon him.
I venture with some diffidence to make a distinction which seems to me to be at least good sense and I hope good law. The alleged excess may relate to the number of blows or to their nature. If the position is, as in McClelland v Symons (1951) VLR 157, that one blow would have been justified in self defence but further blows would not and the plaintiff alleges several blows and the defendant admits only one, then the onus of proving the further blows must, I think, be on the plaintiff. Each alleged blow is really a different assault and the plaintiff has the onus of proving each such assault. On the other hand, where it is not the number of blows alleged by the plaintiff but their nature and reasonableness which is in dispute, then once the plaintiff proves the blows it seems to me that the onus passes, or at any rate ought to pass, to the defendant to justify them, not only with reference to the necessity for some force but as to the necessity for the particular force. This seems to me to be inherent in Cockcroft v Smith (1705) 2 Salk 642 (91 ER 541). ... I see really no answer to the proposition advanced in Miska v Kivec (1959) 18 DLR (2d) 363 that the reasonableness of the force is an integral part of the defence, so long as it is clear that the assault finally relied on by the plaintiff is the very assault which the defendant has undertaken to justify and not some other assault.”
I agree with this view. The very essence of the defence of self defence is that it is the use of reasonable force. In determining that issue, there may be shifting evidentiary burdens. However, the onus of proving reasonableness at all times must remain on the defendant. This was clearly stated by this Court in Miller v Sotiropoulos (unreported, New South Wales Court of Appeal, 18 August 1997).
[5] [1997] NSWCA 325.
[6] [1997] NSWCA 325 at 9.
It was the respondent’s case that the appellant was the instigator of the violence. It was not in dispute that the respondent used force against the appellant. Once it was established that the respondent struck the appellant the onus was on the respondent to prove that he was acting in self-defence and that he used reasonable force.
The Magistrate stated that he was unable to say who was the aggressor and added:
…and therefore the plaintiff has failed to discharge the onus of proving an assault by the defendant in the [manner] alleged; the plaintiff’s case therefore must fail.
In reaching this conclusion the Magistrate appears to have overlooked the fact that, given the undisputed evidence that the respondent hit the appellant, it was necessary for the respondent to establish his case on self-defence on the balance of probabilities. This would be so even if the Magistrate had found that the appellant was the original aggressor.
It is necessary at this point to identify the relevant assault. As Bray CJ observed in Pearce v Hallett, in an incident such as this it is necessary to conclude:[7]
…that the assault finally relied upon by the plaintiff is the very assault which the defendant has undertaken to justify and not some other assault.
[7] [1969] SASR 423 at 428.
The Magistrate did not specifically comment on the medical evidence which renders it likely that at least two blows caused the injuries to the respondent’s face. These injuries were also likely to have been caused before the two men fell to the ground. The evidence establishes at least on the balance of probabilities that the respondent inflicted the injuries to the appellant’s face and head in the course of an assault and that at least two blows were struck. Although it might seem artificial to separate the punching to the appellant’s head and face from the circumstances which resulted in him falling on the meter, I think it would be wise in the light of the Magistrate’s inability to make further findings on the evidence, to limit any assault by the respondent to the punching to the head and nose.
As earlier observed, at least some punching to the head was not denied by the respondent and, in my view, the evidence makes it clear that the assault to the head and nose involved more than one blow. The Magistrate was unable to make findings of fact which would support a finding that the respondent was acting in self-defence. In these circumstances an actionable assault by the respondent was made out.
The appeal will be allowed and the order of dismissal of the action set aside. There will be judgment for the appellant against the respondent for damages to be assessed.