Howard v Wing
[2002] TASSC 35
•14 June 2002
[2002] TASSC 35
CITATION: Howard v Wing [2002] TASSC 35
PARTIES: HOWARD, Charles Leslie Atholston
v
WING, Bruce William
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION: APPELLATE
FILE NO/S: FCA 93/2000
DELIVERED ON: 14 June 2002
DELIVERED AT: Hobart
HEARING DATES: 25 March 2002
JUDGMENT OF: Cox CJ, Underwood and Evans JJ
CATCHWORDS:
Appeal - New trial - Appeal - General principles - Interference with judge's findings of facts - Functions of appellate court - Where inferences of facts are involved - Generally - Whether circumstances gave rise to a reasonable and definite inference that the respondent caused the appellant's injury.
Luxton v Vines (1952) 85 CLR 352, followed.
Aust Dig Appeal [75]
REPRESENTATION:
Counsel:
Appellant: C N Dockray
Respondent: J C Kitto
Solicitors:
Appellant: C N Dockray
Respondent: Jamie Kitto
Judgment Number: [2002] TASSC 35
Number of Paragraphs: 20
Serial No 35/2002
File No FCA 93/2000
CHARLES LESLIE ATHOLSTON HOWARD v BRUCE WILLIAM WING
REASONS FOR JUDGMENT FULL COURT
COX CJ
UNDERWOOD J
EVANS J
14 June 2002
ORDERS OF THE COURT:
Appeal allowed.
Judgment in favour of the respondent set aside.
Judgment for the appellant against the respondent entered for damages to be assessed.
The matter remitted to the learned trial judge for that purpose.
Serial No 35/2002
File No FCA 93/2000
CHARLES LESLIE ATHOLSTON HOWARD v BRUCE WILLIAM WING
REASONS FOR JUDGMENT FULL COURT
COX CJ
14 June 2002
The appellant sued the respondent and his daughter Joanne Lee Wing for damages for an assault and battery allegedly committed upon him by them on 26 December 1984. Although the writ was issued on 9 August 1988, the trial did not take place until May 2000. There was no evidence that Joanne Wing committed an assault or battery upon the appellant or that she was in any way a party to assault or battery upon him. Judgment was accordingly entered in her favour against the appellant and no issue is made of that decision. This appeal challenges the dismissal by the learned trial judge of the appellant's claim against the respondent that he struck blows unjustified in law, causing the frontal lobe damage from which the medical evidence clearly shows he suffered. The action arose in the way I now detail.
The appellant was the husband of Joanne Wing who, as I have said, was the respondent's daughter. The appellant and his wife lived in unhappy domestic circumstances at 75 Madden Street, Devonport. There were frequent arguments. On 26 December 1984, the respondent and his wife, Mrs Shirley Wing, the stepmother of Joanne Wing, visited the appellant and his family, intending to install an inflatable swimming pool for the use of Joanne Wing's children. The respondent was then aged 52, had dislocated his left shoulder the previous day, his left arm was in a sling and he was, furthermore, an asthmatic, was an invalid pensioner who suffered from a bad back, had no skills as a pugilist and generally was a man of limited physical ability. He had with him a shovel which he used with his right hand to smooth the ground on which the pool was to sit. His wife and daughter were with him in the garden. Suddenly the appellant came out of the house yelling and swearing and told Joanne Wing that it was all over and she could pack her gear and get out. The appellant clearly had lost his temper. He tried to take the spade from the respondent but after having given it two or three twists without succeeding, let go of it. Joanne Wing entered the house and was followed a minute or two later by the appellant.
Hearing a scream from within the house, the respondent and his wife entered the kitchen to see Joanne Wing come up the passage towards them looking dishevelled and upset. The appellant came into the kitchen, still ranting and swearing, and seized her by the hair and the back of her neck. He had a short knife in his hand and threatened her with it, but for some reason the knife flew out of his hand and she slipped from his grasp and came round towards the respondent. The appellant, still swearing, cursing and frothing at the mouth, according to the respondent, grabbed Joanne Wing around the throat. The respondent thought she was losing consciousness and called out to the appellant to stop, but he took no notice. The respondent then admits to striking the appellant a number of times. The first blow was one to the side of the appellant's face, inflicted with his right fist. It was only a light blow to jerk the appellant to his senses. The appellant let go of Joanne Wing and came at the respondent, pulling his fist back, whereupon, believing himself to be under attack, the respondent struck the appellant fairly hard in the face. The appellant went backwards to the sink which was two or so feet behind and advanced again towards the respondent who, thinking he was about to be attacked again, hit the appellant a third time, the blow being hard and full in the face. He described the appellant's nose and around that area as half dissolved and pulped and said that the appellant went backwards, down and onto the floor. The appellant stayed on the floor breathing slowly and in a very laboured way. Somebody called the police and ambulance and the appellant was taken away. In answers to interrogatories sworn in 1989, the respondent said he struck the appellant with his right fist three or four times and that he did not use as much force as he could apply. He described the appellant as appearing to fall as a result of being struck, buckling at the knees and then falling backwards and landing on the carpet in front of the dishwasher. In evidence, he admitted to hitting the appellant fairly hard and to having broken his little finger and dislocating another finger. He said that he could have hit harder but did not want to cause any more damage than was necessary to put a stop to what the appellant was doing. He said that after the striking of the first blow, Joanne Wing had left the room and that the appellant, upon falling to the floor, had given the appearance of being unconscious. At no time, the respondent claimed, had he struck the appellant in the forehead nor done anything to cause the appellant to suffer bruising to his testicles. Once the appellant was lying on the floor, the respondent said he did not think there was anyone in the room with him other than the appellant's son, Tony Howard, who the respondent described as being there right from when the appellant first hit the floor.
No evidence was given by the police officers or ambulance personnel who attended, nor were any hospital records tendered, save for one document detailing a fall in the Royal Hobart Hospital on 31 December 1984. I shall return to this document later. Save for what can be gleaned from it, the learned trial judge had no evidence of the appellant's condition when taken to hospital. It appears that he was admitted to the Royal Hobart Hospital on 26 December 1984, presumably after some form of assessment at the local hospital. The appellant himself claimed to have little recollection of the incident and gave no evidence of any battery by any person at the house. To prove an unlawful assault and battery by the respondent, the appellant relied substantially on the evidence of the injuries suffered by him and of the violence that would have been necessary to cause them.
Mrs Josephine Howard, the appellant's divorced first wife with whom he has lived since his discharge from hospital in March 1985, gave evidence that about a week after the incident she had visited the appellant in the Royal Hobart Hospital. The rails on his bed were up and he was lying on it. He was almost unrecognisable. His head and forehead were swollen to twice their normal size, she said. He had dried blood inside his mouth and his nose, his face was puffy, he had bloodshot eyes, he was crawling around the bed, acting like a child and appeared to be pleased about being visited, although she did not think he knew who his visitors were. He was incapable of looking after himself in any way and was incontinent. The incident report of the Royal Hobart Hospital for 31 December 1984 noted that the admission diagnosis was a "closed head injury (MVA)". Why this record was made, was not explained by the evidence. There certainly was no suggestion in the evidence that the appellant had been involved in a motor vehicle accident after his removal from the house and one would think that if there were any evidence to that effect, it would have been in the respondent's interest to present it. The report noted that before the incident on 31 December 1984, the appellant was disorientated. It recorded that at 3.45am that day, noises were heard coming from the appellant's room and that on investigation a nurse saw the appellant fall off the end of his bed onto the floor. The bed rails were still up in position. He sustained an abrasion above his left eye. A doctor who examined him noted that he "apparently climbed off end of bed and fell against end of bed", knocking his left frontal region. On examination it was noted that there was "old bruising +++" with no evidence of a new external injury except the left eyebrow abrasion. No neurological abnormalities were found, although it was noted that "fundi not well visualised". Some weeks after she visited him in the Royal Hobart Hospital, the evidence suggests that the appellant was moved to the Launceston General Hospital. When Mrs Howard first saw him there, she observed that his legs were bruised and that he had purple bruises on his scrotum. His face was still bruised and sort of twisted with swelling still there, but not as prominent as it had been in Hobart. For most of the time during the first month of his stay at the Launceston General Hospital, he was unconscious and kept heavily sedated.
Uncontested evidence was given by Dr Andrew Maclaine-Cross, a consultant physician in general medicine who saw the appellant several times while he was an inpatient at the Launceston General Hospital between 1 January 1985 and 14 March 1985, to the effect that the appellant was diagnosed as suffering from severe frontal lobe syndrome. This diagnosis was supported by Dr Eric Ratcliff, a psychiatrist who has treated the appellant since 1986 at fortnightly or monthly intervals. Both doctors were of the view that the kind of blows admittedly struck by the respondent and as described by him and other witnesses, were very unlikely to have caused the frontal lobe injury suffered by the appellant, nor did they consider it likely that it was sustained by the appellant's fall onto the carpeted floor in the kitchen after the last admitted punch. The possibility that it was sustained in hospital during the appellant's fall on 31 December 1984 was not really explored at trial but in view of the existence of considerable old bruising on the left frontal region, with no evidence of a new external injury, except the left eyebrow abrasion and of no neurological abnormality having been found, together with a history of admission with a closed head injury and disorientation prior to the incident, this seems a highly unlikely cause of the appellant's injury.
The learned trial judge found that in the circumstances the blows admittedly struck by the respondent were administered by him while acting in lawful self defence. The appellant is not in a position to contend otherwise, but in his closing submissions at the trial, and before this Court, his counsel contended that the learned trial judge should have found that even if those blows were struck in self defence, the respondent had delivered further blows not in self defence but in the form of retaliatory and vengeful blows, possibly with the spade, or with some other hard instrument or object such as might readily be found in a kitchen. Counsel for the appellant accepted that he bore the onus of proving the respondent struck further blows than those his Honour found justified.
The learned trial judge reached the following conclusions (Howard v Wing & Anor [2000] TASSC 147 at pars 41 - 44):
"I am not persuaded by the evidence that the [respondent] administered any violence to the [appellant] other than that admitted by him. The medical evidence, of course, deserves to be given considerable weight, and it strongly suggests that the [appellant's] frontal lobe syndrome was caused by a blow or blows about which no evidence was given by any of the persons at 75 Madden Street on 26 December 1984. Nevertheless, both Dr Maclaine-Cross and Dr Ratcliff accepted the possibility, albeit a remote one, that the punches for which the [respondent] admitted responsibility, may have caused the injuries. Even if it is a proper conclusion to draw, and it probably is, that the injuries were caused by a further blow or blows, there is no evidence that the [respondent] was responsible for them. There were a number of people at the house that day including him, [Joanne Wing], his wife and Tony Howard. Apart from the fact that the [respondent] admitted striking blows which I would find were lawfully justified, there was no evidence establishing that he was responsible for the further blows.
It is, of course, possible that the scenario of the events as described by the [respondent's] and [Joanne Wing's] witnesses is a false one and that what took place was not what they described. If that is so, then the likelihood is that they all told lies in this Court to protect the responsible person or persons. Nevertheless, even if that be the case, there is insufficient evidence upon which I could conclude that the [respondent] was the one who struck the [appellant] and caused his injuries.
I am therefore left in a state of uncertainty or, perhaps better expressed, of being unable to express a positive finding that it was the [respondent] who wilfully administered violence to the [appellant], other than that to which he admits.
… In conclusion I add that I have not overlooked that the credibility of most of the civilian witnesses was not good, having regard to their antecedents, as revealed by cross-examination. That comment applies to the [appellant] as well as to the [respondent] and [Joanne Wing]. For example, and without checking the transcript, I think that all of them admitted to having committed offences involving dishonesty. I have also not overlooked evidence establishing ill-feeling between the [appellant] and the [respondent] and [Joanne Wing] which was capable of explaining why they may have wished to hurt him. But such aspects of the evidence were not capable of persuading me that I should find for the [appellant]."
The appellant's grounds of appeal are as follows:
1 That the learned trial judge erred in that he ought to have held that there was sufficient evidence, or at least evidence from which reasonable and definite inferences could have been drawn, from which it should have been held, on the balance of probabilities, that it was the Respondent who further struck the Appellant beyond those blows admitted by him, resulting in the Appellant's medically diagnosed frontal lobe syndrome;
2 That the learned trial judge erred in that he ought to have held, given his conclusion that the Appellant's medically diagnosed frontal lobe syndrome was probably caused by a blow or blows beyond those admitted to by the Respondent, that it was the Respondent who delivered such blow or blows to the Appellant as there was no reasonable or cogent evidence upon which it could have been considered either possible or probable that Joanne Wing, Shirley Wing of [sic] Tony Howard were, either individually or collectively, responsible for such a blow or blows; in other words, the opposite inferences were so preponderant that the learned trial judge erred in law.
3 That the learned trial judge erred in that he misconstrued the Appellant's case as the Appellant's submission did not depend upon a finding that the 'Defendants' witnesses ... all told lies to protect the responsible person or person [sic]'; in fact, the Appellant's case relied upon the evidence of Joanne Wing and Shirley Wing that neither they nor Tony Howard were present at the time the further blow or blows were delivered to the Appellant."
In Luxton v Vines (1952) 85 CLR 352, Dixon, Fullagar and Kitto JJ said, at 358:
"The test to be applied in determining in cases like this whether circumstantial evidence suffices to support a finding that negligence for which the defendant is responsible vicariously or otherwise occasioned the injury complained of was restated recently by this Court in Bradshaw v McEwans Pty Ltd (1951) Unreported, and for the purposes of this case it is enough to set out the following passage from the judgment: 'Of course as far as logical consistency goes many hypotheses may be put which the evidence does not exclude positively. But this is a civil and not a criminal case. We are concerned with probabilities, not with possibilities. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while in the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture: see per Lord Robson, Richard Evans & Co Ltd v Astley (1911) AC 674, at p 687. But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise: cf per Lord Loreburn (1911) AC, at p 678'."
I think it is clear from the medical evidence that the only proper inference to draw on a balance of probabilities, from the nature of injuries sustained by the appellant is that they were caused by a further blow or blows. If blows were struck while the appellant was lying on the floor in an apparent state of unconsciousness as described by the respondent, no possible justification could be suggested for them. The real question in this circumstantial case is whether or not the proper inference on the balance of probabilities is that the appellant was the person who administered them. It appears that his Honour derived no assistance from the credibility of any of the civilian witnesses who claimed to have observed the incident or its aftermath. Even in relation to the conflicting accounts of the respondent and Mrs Josephine Howard as to a conversation concerning how the incident had occurred, his Honour was unable to make findings, saying that he had no reason to accept one version of the conversation over the other.
The competing hypotheses which stood to be weighed on a balance of probabilities were that the blows were inflicted by one or more of the respondent, his daughter Joanne, his wife Shirley, or the appellant's son, Tony Howard. As to the last mentioned person, he was not called as a witness and there was no evidence as to his age. The evidence revealed only that he was the appellant's son by his first marriage which was contracted in November 1963 and that he had two sisters. His parents were divorced in 1979 and had been estranged for a number of years. His stepmother Joanne Wing was asked in examination-in-chief what his relationship was like with his father and replied:
"Mr Howard was always very firm with all his children but they did seem to have quite a good relationship, you know, at times, they used to joke and muck around a lot together, but the comment that Tony did make after the events unfolded was ¾ ".
There was an objection at this stage and the answer was not completed. Later Joanne Wing was asked:
"Do you know of any occasion when you've seen what might be termed as bad blood between Tony Howard and his father"
and she replied:
"Honestly I couldn't say."
The evidence about where he was and what he may have seen of the incident was somewhat confusing. The respondent was asked in cross-examination, "Did anyone to your knowledge hit Mr Howard after you did". He replied, "No I don't think there was anyone in there other than his son Tony, and Tony was there right from when he first hit the floor". Mrs Shirley Wing did not mention seeing Tony Howard at all. She said that after a third blow was struck by the respondent causing the appellant to fall to the floor, she and Joanne Wing had left the house and had gone next door where they were joined some time later by the respondent. Joanne Wing said that after the appellant had attacked her and had been struck in turn by the respondent, she left the kitchen and thereafter went next door. She said, "Tony had already started taking the boys over there and I went out to assist with that and I came back to the doorway and my daughter was still inside and I took her out with me and we went over to the next door neighbours'". She was then asked did Tony Howard return to the house, 75 Madden Street and said, "Yes he was there the whole time". "Even after you left did he remain at 75 Madden Street?", the questioner asked and she replied, "Yes he did". A little later she was asked "So is my understanding correct, that your father and Tony Howard remained in the house when you were next door?" And replied, "No, Dad was over with us, he helped me over the fence." The question was then asked "So at any stage, was Tony Howard left alone in the house - well, left alone at 75 Madden Street with his father?" She replied, "Yes, he was." In cross-examination she said she saw one punch delivered by her father and that she had then left the room and stood in the porch area and saw no more of the incident. She said she went outside and saw Tony Howard in the backyard moving the children and that in that case he could have been in the backyard when the appellant attempted to strangle her. She said that having collected her daughter, she had put her over the fence and then had permanently remained next door. This exchange then followed:
"And was Shirley with you? … Shortly afterwards.
Yes … Very shortly afterwards. Tony - I can recall being at the side of the house and asking Tony to remove the knife block set that was on the kitchen bench, if he would bring it out and put it on Dad's truck. Because I didn't want any weapons left laying around."
There was, accordingly, evidence that Tony Howard was with his father after the initial blows were struck by the respondent in lawful self defence and may have been there with him alone. However there appears to have been no reason for him to have attacked his own father and in my view the suggestion that he may have done so is mere conjecture. In considering any competing hypothesis that one of the persons present at the scene, other than the appellant, was responsible for that conduct, it is, in my view, appropriate to consider the gravity of an allegation that such a crime may have been committed by the victim's own son.
Shirley Wing, save for some sense of loyalty to the respondent, and possibly of affront that he should have been embroiled and had to intervene in a domestic dispute between the appellant and her stepdaughter, likewise has no reason to have unlawfully assaulted the appellant after he had been felled. On the evidence of all the witnesses who saw the incident, that is, the respondent, herself and Joanne Wing, she did not do so. Any suggestion that she may have done so is likewise mere conjecture.
Joanne Wing had reason for animosity towards her husband. There had been previous arguments, including an assault by him upon her about 16 December 1984, and the attack on 26 December in which her father had defended her could have fuelled her antipathy towards him. Nevertheless, her clear evidence and that of her stepmother and the respondent, was that she had left the house soon after the respondent struck the appellant in self defence, or in her defence, and had remained next door.
The respondent, on the other hand, not only had reasons for animosity towards the appellant, including knowledge of the earlier assault on 16 December, but on his own evidence, as well as that of his wife and daughter, was the only person other than Tony Howard who had the opportunity to strike further blows which caused the appellant's injuries. While it is possible, as his Honour said, that the scenario of the events as described by the respondent's witnesses was a false one, and that they all told lies to protect the person responsible, there is no reason to suppose that the respondent's admission of leaving after his wife and daughter and their evidence to the like effect, was untrue. If it was true, the respondent had ample opportunity to inflict further trauma upon the appellant causative of his injuries.
In my opinion, the circumstances gave rise to a reasonable and definite inference that the respondent inflicted the blows in question. They do more than give rise to conflicting inferences of equal degrees of probability that any other person did so. The appellant has made out the first two grounds of appeal. I would allow the appeal, set aside the judgment in favour of the respondent and enter judgment for the appellant against him for damages to be assessed. The matter should then be remitted to the learned trial judge for that purpose.
File No FCA 93/2000
CHARLES LESLIE ATHOLSTON HOWARD v BRUCE WILLIAM WING
REASONS FOR JUDGMENT FULL COURT
UNDERWOOD J
14 June 2002
I agree with the reasons for judgment of the learned Chief Justice and the orders that he proposes should be made for the disposition of this appeal.
File No FCA 93/2000
CHARLES LESLIE ATHOLSTON HOWARD v BRUCE WILLIAM WING
REASONS FOR JUDGMENT FULL COURT
EVANS J
14 June 2002
I have had the advantage of reading the Reasons for Judgment prepared by the learned Chief Justice. I agree with them and with the orders he proposes.
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