May v Thomas [No 2] - [2012] WADC 96

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: MAY -v- THOMAS [No 2] [2012] WADC 96

CORAM: FENBURY DCJ

HEARD: 22-25 & 28 MAY 2012

DELIVERED : 3 JULY 2012

FILE NO/S: CIV 2394 of 2004

BETWEEN: MARK CHRISTOPHER MAY
Plaintiff
AND
ANTHONY TREVOR THOMAS
Defendant

Catchwords:

Damages for personal injury - Assault – Whether reasonable self defence – Liability for damages – Turns on own facts

Legislation:

Criminal Code (WA) 2001

Result:

Claim dismissed

Representation:

Counsel:

Plaintiff: Mr T H Offer
Defendant: Mr T F Percy QC with Mr S D Hubbard

Solicitors:

Plaintiff: Vertannes Georgiou
Defendant: DLA Phillips Fox

Case(s) referred to in judgment(s):

Briginshaw v Briginshaw (1938) 60 CLR 336
Corker v State of Western Australia [2004] WASCA 125
Hall v Fonceca [1983] WAR 309
Hornal v Neuberger Products Ltd [1957] 1 QB 247
Powell v The Queen, (Unreported, WACCA, Library No 4004, 2 December 1980)
R v Lawrie [1986] Qd R 502

FENBURY DCJ: This is a tragic case of a very intoxicated, obnoxious party guest being knocked or pushed down and, then, or shortly after, striking his head, and fracturing his skull suffering catastrophic head injury.
The person responsible for the initial event, by his defence, admits an assault by pushing, not punching, but, in either event, claims he acted in self‑defence, defence of another and prevention of trespass. The substantive issues in the case are whether the assault was a punch or a push and whether what was done was a reasonable response in all the circumstances.

The Criminal Code Act 1913

Section 5 of the Criminal Code Act provides:
Civil remedies and saving
When, by the Code, any act is declared to be lawful, no action can be brought in respect thereof.

The Criminal Code 2001

Section 248 of the CriminalCode, which was in force in 2001, provides in par 1 as follows:
When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault …
Section 250 provides:
In any case in which it is lawful for any person to use force of any degree for the purpose of defending himself against an assault, it is lawful for any other person acting in good faith in his aid to use a like degree of force for the purpose of defending such first mentioned persons.
Section 254(1) provides:
For the purpose of this section … the term 'place' means any land, … or a part of any land …
Section 254(2) provides:
It is lawful for a person (the occupant) who is in peaceable possession of any place, or who … to use such force as is reasonably necessary
(a)to prevent a person from wrongfully entering the place …
Section 254(3) provides:
The authorisation conferred by (2) … extends to a person acting by the occupant's authority …

The pleadings

Whether by fending off or punching Mr May, Mr Thomas pleads in pars 4 and 5 of his amended substituted defence filed 2 June 2011, that he was 'acting in lawful self‑defence' and 'using such force as was reasonable in all the circumstances'.
Alternatively Mr Thomas pleads he acted in defence of another, namely Zeffron Reeves. Additionally Mr Thomas pleads his response was a reasonable one to prevent a trespass on the premises (pars 6.10 and 6.11).
Thus it is that Mr Thomas calls in aid the provisions of the Criminal Code above mentioned.

Preliminary observations

The plaintiff, Mr May, suffered catastrophic injury after being assaulted by the defendant Mr Thomas. The assault occurred on the poorly lit driveway of a Mount Claremont home where an engagement party was being held. Both Mr May, Mr Thomas and witnesses present had, to varying extents, been drinking alcohol at the party.
The incident took place in March 2001, more than 11 years ago. This action was commenced in 2004.
In Powell v The Queen, (Unreported, WACCA, Library No 4004, 2 December 1980), Burt CJ in an appeal against conviction relating to directions in an assault case made some observations which seem to me to be appropriate:
Assault cases, simple as they may be, are in my experience very difficult to try. They are difficult to try because the events are of short duration, they happen as often as not in circumstances where they cannot clearly be seen, and it is not easy at the end of the day to say with any degree of certainty just what happened, nor is it easy, nor is it common that one can produce a witness who, with any degree of objectivity, can tell the court what happened.
… A state of belief in either set of witnesses is not, under those circumstances, easy to achieve …
In addition to the factors identified by his Honour, this case has antiquity and witnesses who had been drinking. Those factors more than others can adversely affect perception and memory, all of which combine to make the task very difficult.

Common Ground

There was quite a deal of common ground between the parties.
On the 2 March 2001 an engagement party was held at the home of Raymond Sadgrove being the rear house of a duplex block in Mount Claremont. Mr Zeffron Reeves had become engaged to Rochelle Sadgrove, Raymond Sadgrove's daughter.
Guests comprised a mixture of younger people, of old school friends of Rochelle's, members of the Cottesloe Rugby Union Football Club where Raymond Sadgrove was a long-term member, and various other older and some elderly relatives.
The Sadgrove's house was accessed from the road, Adderley Street, by a sealed drive way that ran down the fence line being, it appears, about 40 m in length. The driveway was not specifically lit, but on the side of the Sadgrove's house, under the eaves, were at least three security lights. These lights were illuminated continuously on the night of the party. There was a similar security light or lights on the duplex house closest to Adderley Street however there was no evidence it or they were illuminated continuously on the night in question.
As a consequence there was some lighting in the driveway generally, but the lighting was not very bright.
At the Sadgrove's end of the driveway it terminates as a carport at the side of the house. Visitors then go through a gate into the rear patio thence a sunken grassed backyard and lawn/garden area.
Amongst a number of Rochelle Sadgrove's old school friends to attend, was Kate Chadborne. She brought her partner, Mark May.
Mr May was a very large man, about 200 cm tall who weighed at least 105 kg. He was working as a brick layer at the time.
Mr May did not really want to go to the party that night but decided to make the best of it. On the way there with Kate Chadborne he stopped and bought a carton of Victoria Bitter beer containing 24 cans. Kate Chadborne bought a bottle of wine. Upon arrival at the party Mr May took 12 cans with him and drank them over the next while, getting the other 12 at some time.
Whatever the number of cans Mr May drank, including before he went to the party, it is clear, and common ground, that he was very intoxicated at the time he was ejected.
His calculated blood / alcohol percentage at the relevant time based on a blood sample taken some 11 or 12 hours later in the hospital, was 0.218% (Professor Mead said this was a mildly conservative estimate).
As I have stated Mr May began to behave obnoxiously at the party. He deeply offended his partner causing her to become distressed. He used coarse language in front of the older guests. He was asked to leave by Raymond Sadgrove after making further loud offensive remarks.
This occurred when Mr May was seated with a group of people on the sunken rear garden lawn of the property. In due course he got to his feet and was escorted off the lawn, up the steps onto the patio and then down the side of the house through the gate and up the driveway by Mr Zeffron Reeves, the young man engaged to Ray Sadgrove's daughter Rochelle. He was reluctant to go, but put up no physical resistance.
Arriving at the end of the driveway Mr May walked off down the street, having been mislead into believing that Kay Chadborne had already gone and was waiting for him in the car. Shortly later he returned to the head of the driveway and wanted to re‑enter the property to get Kate Chadborne.
Mr Thomas, having been advised there was an issue at the end of the driveway and that Zeffron Reeves might need assistance and apparently having heard some commotion, went up the driveway to where Mr May was.
As a result of Mr Thomas either pushing or punching Mr May he fell on the ground. A short time later, after being assisted to his feet, Mr May went to the ground again. He was shortly thereafter unconscious, and whilst being half carried to a car with his torso and head elevated but his feet dragging, he was dropped onto the ground a third time.
Guests at the party, including Kate Chadborne and, later, her father, appear to have reached the view that Mr May's comatose state was alcohol related; nobody knew he had suffered a fractured skull. It was discovered about 11 hours later that Mr May had suffered an injury and he was then taken to hospital.
The quantum of damages agreed is $770,000.

The evidence on issues in dispute

There are four witnesses who saw or say they saw what happened in the critical moments during which Mr May was assaulted. Most of the other witnesses spoke as to events at the engagement party with a focus on aspects of Mr May's obnoxious behaviour. Some of the witnesses gave evidence about where they can recall Kate Chadborne being or where she was not. I shall return to that.

Mr May

Mr May gave evidence that he was standing at the driveway when, without preamble, he was punched on the chin. He remembers nothing of any significance after that. As I have mentioned Mr May was very intoxicated on the night in question and on or shortly after being assaulted he suffered a fractured skull and brain injury. It is not surprising that he has had difficulties in recall; indeed there was a reference to him not being able to remember anything of that night for several months afterwards.
I have concerns about Mr May's reliability as a witness which of course is not his fault. It is highly likely that he has absorbed and adopted what he has been told by others and in all probability by his then partner Kate Chadborne. Again I do not suggest any impropriety. But one can imagine Mr May, convalescing with no recollection, pressing Ms Chadborne about what happened and she telling him her version of events.
Mr May is not a witness whose evidence can be given much weight for the above reasons.

Mr Thomas

As I have mentioned Mr Thomas was a 38‑year‑old first grade rugby union player, about 182 cm tall. He played rugby in a position known as flanker, one of the forwards. The position of flanker requires significant capability in the rough house aspects of this rough game. Mr Thomas spoke of fending or pushing Mr May which sat him down on his bottom then on his back. A fend is a forceful open handed push usually to the upper torso. The common situation is a player carrying the ball and running at some speed fends off a person trying to tackle him by pushing him in the way I have described especially if the tackler is standing erect not crouching. A good fend can be very effective sometimes stopping and shunting the tackler backwards, even onto his backside. Of course in that scenario the person making the fend is travelling at speed and he is fending off a stationary or slower moving target. That is not the situation described in this case.
Apart from being a rugby player, Mr Thomas was an experienced amateur boxer who had boxed between the age of 8 and 19 years and occasionally worked out boxing in the gym since.
Mr Thomas said he had been at the party, consumed three or four beers and then some time later in the evening he was having a hot drink inside. He heard some sort of commotion, walked out onto the back patio and saw Rochelle Sadgrove consoling Kate Chadborne. Rochelle asked him to go out the front and check on Zeffron Reeves. Mr Thomas said that he walked around the side through the gate and walked up to where Zeffron Reeves and Mr May were standing. He heard raised voices. The things being said by Mr May were aggressive and he heard Zeffron Reeves telling Mr May to leave. He made these observations as he walked down the driveway to where the two men were standing.
Mr Thomas said that Mr May turned to him as he arrived and told him that the dispute was nothing to do with him and that he should 'piss off'.
Mr Thomas' evidence was to the effect that he and Zeffron Reeves were both facing Mr May side by side and that Mr May came forward. Mr Thomas stated he pushed Mr May in the chest in self-defence and defence of Zeffron Reeves.
Mr Thomas said that there were only the three of them there at the time. He said he was concerned about the situation for Zeffron Reeves safety and for his own safety. He said that he was 'just over a metre, may be a metre and a half' from Mr May. He said he was standing on the right‑hand of Zeffron Reeves and then as Mr Thomas put it:
Mark May was still being verbally aggressively and telling us he was going to come into the property and get Kate. And then, all of a sudden, he sort of raised his arms to clenched fists and lunged towards us to push past – as if to push past us.
Q.What do you remember the last thing that was said before he did that?
A.'I am going to the property. I am going to get her. Get out of my way.'
And later:
Q.As best you knew, where was Kate at that stage?
A.On the patio area with Rochelle and Jodie.
Q.How long had it been since you had left the patio to go out the front?
A.It was a matter of minutes. (ts 30)
Mr Thomas demonstrated how he said Mr May was carrying his arms as he lunged towards him and Zeffron Reeves. He said the arms were elevated with the fists clenched but palms facing forward, the hands being at about face height.
Mr Thomas said:
I believed he was coming towards-over to push us out of the way or hit us, either myself or Zeffron, and force his way back into property.
Q.So what did you do?
A.The instinctive reaction was to raise my right hand and fend him off as he was coming towards us. (ts 31)
Mr Thomas demonstrated doing that pushing firmly out with his open hand in a slight up hill gradient.
Mr Thomas said that Zeffron Reeves was standing next to him. He said that he used one hand which was his right hand. He said he connected with the chest area.
Mr Thomas described Mr May:
His momentum stopped and he tended to stagger backwards. He took a few paces backwards and fell onto his backside. Fell onto his backside, stumbled back and sat down to a seating position. He then attempted to stand up, but fell backwards, rolled onto his back. (ts 33)
Mr Thomas said he did not recall whether Mr May had hit his head at any stage.
This is surprising I think given that a number of other people said they heard Mr May's head hit the ground, sufficient it seems, for somebody to suggest the calling of an ambulance.
There are some differences in what Mr Thomas said in his evidence and what he said in his interview with police some 25 days after the incident in 2001. In his earlier statement he said that he pushed Mr May with the left hand whereas in sworn evidence he said he pushed with his right hand. In his sworn evidence he said that Mr May's hands were raised and clenched into fists whereas in his original interview he described the hands being raised but being open and not clenched into fists.
It is very difficult to reconcile Mr Thomas' description of what he did to Mr May, and what the result of it was, with the very significant injury suffered by Mr May.
Mr Thomas said that as soon as he pushed Mr May and saw him go down he turned around and left the area and went back inside the house. This is also a little difficult to follow given the circumstances and if Mr Thomas' version of merely pushing Mr May is accepted.
In submissions there was criticism of Mr Thomas' legal strategies in the action over the years and in particular, in his pleadings.
A defence comprising a blanket denial with no positive assertions was initially filed on behalf of Mr Thomas on 2 May 2005.
It was not until 29 October 2008 when the defence was amended, that the issue of self‑defence was raised in a pleading.
This plea was then altered and expanded on 29 July 2010 and 2 June 2011 when the defence in its final substituted form was filed.
The action was commenced in 2004. The incident occurred in 2001. There has been a great deal of delay given that it is now 2012. It may be Mr Thomas' legal advisors at that time, were at fault. I do not know, nor have I any inclination to analyse these matters in any detail because there can be no doubt that from relatively early days, certainly on 28 March 2001, being about 25 days after the event, Mr Thomas made reference to acting in self-defence in his video record of interview. I shall return to this later.

Zeffron Reeves

He was the man whose engagement was being celebrated at the party. He also gave a statement to police in March 2001, at about the same time as Mr Thomas.
In his description of the critical event Zeffron Reeves said 'he kept on advancing towards me and I think I probably made physical contact with him at some stage but more of him pushing into me, it was in a very short period of time and then Tony came through the side gate and was by my side'.
Mr Reeves said that Tony Thomas had arrived in less than a minute from when he had sent Rochelle into the house for help.
Mr Reeves described Mr Thomas as being on his left side, and not on his right side as Mr Thomas had recalled.
Mr Reeves agreed that his police statement would be a more accurate account of events than his sworn evidence given it was taken some three and a half weeks after the incident.
In that statement Mr Reeves said 'Tony stepped forward to meet Mark's progress and the two of them came together, I didn't see either person throw a punch, however Mark fell backwards flat onto his back. I think he hit the back of his head'.
This account is different to Mr Reeves sworn testimony where he describes Mr May sitting down on his bottom after being pushed which is of course consistent with what Mr Thomas said in his evidence.
Mr Reeves described Mr May advancing with one arm raised and one clenched fist. It was his right fist. He said that Mr May 'just sort of lurched forward to throw a punch'.
He looked like he was going to throw a punch?‑‑‑Yeah, he looked like he was going to throw a punch and then the – whether the contact was a punch or not, I – I don't know.
What happened with his other hand? Did you see anything with his other hand?‑‑‑No I wasn't looking at that. I was looking at the hand that was.
What did you think when you saw that?‑‑‑Was getting ready to – for an altercation to occur, basically. Getting ready to defend.
And that was in the direction of yourself is it or both of you?‑‑‑Just in – we were close together – we would have been touching more or less – shoulders touching, Tony and myself. And he just came at both of us.
Alright. And what did you see happen?‑‑‑There was contact made between Mark and Tony.
What form of contact?‑‑‑It looked more just – more like pushing into each other.
Alright. What else did you see?‑‑‑Straight after that contact Mark fell down onto his backside.(ts 165)
Mr Reeves then describes Mr Thomas as putting his hands up 'to push him away sort of thing' and he said: 'he certainly didn't have a clenched fist'.
Do you know what part of Tony might have come in contact with Mark?‑‑‑Probably his hands.
Can you say or were you guessing?‑‑‑No, I can't say …
You're aware that there's an allegation that Tony punched him in this case?‑‑‑Yes. I am.
But what do you say about that?‑‑‑I didn't see it if there was a punch and I was standing right next to him so I'd deny that Tony threw a punch. (ts 166)

In questions from myself Mr Reeves said that from his recollection 'Mark didn't try to break his own fall. … He just fell backwards without putting his hands down'.
Given Mr Reeves' proximity and, inferentially, what would have been his intense focus on the matter in hand, it is surprising he does not know how it came to be that Mr May went to ground backwards without breaking his fall. A man in a tense, if not dangerous, situation, where a threat has developed such that assistance is called for, would, I think, have adrenaline running through his veins and be on alert for any action. Mr Reeves was apprehensive. He would have been hyper vigilant. Yet he does not know if his friend, standing shoulder to shoulder by his side, who had come to his rescue, threw a punch to knock down the aggressor. This is implausible I think.

Kate Chadborne

The final witness who has anything to say about the critical event is Kate Chadborne, the former partner of Mr May, who was living with him at the time and had a child with him.
It was intriguing that there was no inquiry of her as to whether she stood to gain financially if Mr May was successful in the action.
Kate Chadborne said that she saw Mr Thomas punch Mr May and knock him down flat on his back hitting his head on the driveway.
Kate Chadborne gave her first statement to police on 4 March 2001, it appears, at 12.54 am. It is the day following the incident. Hers was the earliest of any witness statement by some 3 1/2 weeks.
Nevertheless, by the next day, on the evidence, Ms Chadborne would have known that Mr May, her partner and the father of her child, had suffered a serious head injury the day before.
Ms Chadborne's first account of events at the critical time in that first statement was as follows:
I went to try to talk to Mark.
As I was approaching Mark I saw a guy come from behind me on my left. I think he came through the gate that I came out of.
He was about 6 foot tall, quite biggish, fairly solid build. He had a shaved bald head. I think he had an earring. I think he was clean shaven. He was wearing I think blue denim jeans and a dark coloured T‑shirt.
He walked up to Mark and I think he swung with his right hand and he hit Mark in the corner of his mouth. It was a fairly decent sort of punch. I heard it connect.
Mark fell backwards, collapsed more or less onto his side. He hit his head. He sort of crumpled and ended up on his side. (Underlining mine)
I didn't hear the guy that hit Mark say anything. He walked back into the party.
… I went to see how Mark was. He was like asleep and he started to snore and I couldn't wake him up. I saw a little bit of blood at the side of his mouth but there was no gush of blood.
Ms Chadborne gave more detail in her statement of 6 March 2001.
I should mention that in both statements Ms Chadborne mentioned seeing a 'guy passed out on the grass' on the right hand side as she walked out. She did not know who that person was. She was sure it was not Mark May.
Senior counsel for Mr Thomas submitted that the man Ms Chadborne describes as being passed out on the grass was in fact Mr May. Consequently he submitted that the court should find that Ms Chadborne arrived outside after the incident had occurred and her evidence that she saw Mr Thomas punch Mr May should be rejected.
I am unable to identify any basis for this assertion in the evidence. Although it is true no‑one else refers to another male lying on the lawn, I accept the evidence of Ms Chadborne that that person was not Mark May. She could not be mistaken. She was a truthful witness. She has not transposed the recollection as suggested.
In essence however, there is not a lot of difference in the second statement. In the second statement, critically Ms Chadborne says:
He walked up to Mark and I think he swung with his right hand and hit Mark in the corner of his mouth. To my mind it was a fairly decent sort of punch. I heard it connect.
Mark fell backwards from the blow. The back of his head hit the concrete driveway before he moved very slightly to his left side. (Underlining mine)
Ms Chadborne's recollection was poor. However, she was adamant that she remembered the man who walked past her, who was Mr Thomas, punching Mr May.
Ms Chadborne did not remember whether Zeffron Reeves was there or not.
On the issue of what Mr May was doing immediately prior to the punch she was asked in cross‑examination:
Mark wasn't behaving in a belligerent manner at that stage?‑‑‑I don't know. I don't recall seeing.
He wasn't engaged in a confrontation or a verbal confrontation with two others?‑‑‑I don't recall hearing or seeing Mark do that. I don't know.
Didn't hear him from where you were inside shouting or screaming?‑‑‑No I don't recall hearing him. (ts 360)
It is noticeable that in her evidence‑in‑chief Kate Chadborne said nothing about the presence of Zeffron Reeves until after incident and other people had come out on the driveway. Her statement about the circumstances surrounding the blow is bare of detail. As to what happened immediately before the punch she does not say there was no interaction between Mr May and Mr Thomas. She said she does not know or recall whether there was any interaction or not.
Ms Chadborne seems to say the punch occurred without any preliminaries or conversation of any kind. However she is not able to say whether there was or there was not any verbal exchange or contact.
The circumstances of course are that Ms Chadborne was mistreated by Mr May earlier that night. She too had been drinking. She knew or would have known as she was walking towards Mr May that he was very drunk. She knew that he was causing trouble out the front of the house. She would have felt great embarrassment at his behaviour. It seems to me that she would have been focusing on how he was behaving, and perhaps not so much on what others were saying to him or he to them. It also is possible she was not close enough to hear at the time whatever was said.

Other witnesses

Rochelle Reeves was the woman who got engaged, for whom the party was held, and although she did not see the incident in question, her evidence was of some importance in the matter.
Her evidence was relied upon by Mr Thomas because of where she places Kate Chadborne at critical times.
Rochelle Reeves was adamant that Kate Chadborne was on the back patio and not insight of the driveway at the material time. She also says that Ms Chadborne was not outside or on the driveway at any time in front of her as she walked to where Mark May was on the ground after getting assistance for Zeffron Reeves.
Rochelle Reeves' was emphatic that Ms Chadborne was never in a position to see and could not have seen what Mr Thomas did to Mr May to cause him to go down.
I think it is of some importance to contemplate the nature of the issue about which Ms Reeves testifies. I refer to the statement she gave to police, the date of which is illegible, but which must have been given at around the date other police interviews took place, which is about 28 March 2001, some 25 days after the incident.
Rochelle Reeves, then of course Rochelle Sadgrove, describes Mark May calling out for Kate Chadborne. She says that when she was sent by Zeffron Reeves to get help (he being her fiancée), she went into the house and saw Kate Chadborne (at the edge of the house). She put it this way:
I ran towards the side gate. As I went through the gate, Tony Thomas, a family friend, walked past me in the opposite direction. I then met Sandra and Kate at the edge of the house. They also were walking toward the gate and the front of the house.
I said to Kate 'don't go with him' and grabbed her arm. She tried to push past me but I held onto her, telling her not to go with Mark.
… I still had hold of Kate and we moved towards Mark, Zeff and Tony.
I observed Mark on the ground.
… I took Kate up the driveway to the road and waited for her father.
Rochelle Sadgrove's emphasis on and detailed reference to what Kate Chadborne was doing, and where she was, speaks strongly of her being by then aware of the significance of where Kate Chadborne was that night. I have no doubt that by 28 May, Rochelle Reeves and the other friends of Mr Thomas all knew that Mark May had been seriously injured and, that Kate Chadborne was saying that she saw Tony Thomas punch Mark May and knock him down when he hit his head on the bitumen.
Thus it is that, post‑facto, Rochelle Reeves (Sadgrove) would have striven to remember where it was that Kate Chadborne was at a critical time when she had had no reason to take particular note at the time. She would have striven to see whether she could help her friend Tony Thomas on the question of whether Kate Chadborne was in any position to see what she says that she did see.
Thus it is that Ms Reeves gave evidence consistent with her statement so emphatically and she was so definite in her statement.
I do not think that Ms Reeves has deliberately set out to mislead the court. There is no evidence to justify such a conclusion. At the time these incidents were occurring, I would not have thought she would have been likely, particularly, to have noted exactly where it was that Kate Chadborne was at any particular time, it not being a significant matter on the night in question. True it is that 3 1/2 weeks later she is certain about where Kate Chadborne was but I do think the circumstances need to be carefully weighed.
On the other hand, Kate Chadborne saw something happen on the night in question and articulated it the very next day. Of course she, too, would be likely to have been inclined to help the cause of her seriously injured partner.

Standard of proof

As I have observed a number of times, and obviously, this is a claim for damages for catastrophic injuries suffered as a result of an assault.
An assault is admitted but not the one alleged. Apart from the nature of the assault, the other issue, which is and was basically the most significant issue, is whether the assault found to have been committed was a reasonable response in the circumstances.
The onus of proof on that issue falls on the defendant, Mr Thomas.
Mr May has brain injury and the quantum of his damages has been agreed at $770,000. There has been no suggestion that the claim by Mr May is covered by insurance. I am unaware of any such policy or even the possibility of purchasing the same.
The quantum in issue is very substantial. The injuries are catastrophic. Clearly a finding that an assault was not a reasonable response would be a massive financial blow to a person of the apparent means of Mr Thomas.
Similarly, the effect of a finding to the contrary on a damaged former bricklayer now working in a sheltered workplace would be the same.
There are well known authorities on the effect of the significance of the matter at issue upon the standard of proof in a civil case. In Briginshaw v Briginshaw (1938) 60 CLR 336, 350, Rich J, in the High Court, stated:
The nature of the allegation requires as a matter of commonsense and worldly wisdom, the careful weighing of testimony, the close examination of facts proved as a basis of inference and a comfortable satisfaction that the tribunal has reached both a correct and just conclusion.
Further, Dixon J at page 362 – 363:
… reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of an allegation made, … the gravity of the consequences flowing from a particular finding are considerations which must effect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal …
In Hornal v Neuberger Products Ltd [1957] 1 QB 247, Morris LJ said at page 266:
Though no court and no jury would give less careful attention to issues lacking gravity than to those marked by it, the very elements of gravity become a part of the whole range of circumstances which have to be weighed in the scale when deciding as to the balance of probabilities.

Findings on question of nature of assault

Kate Chadborne is quite clear that she saw a punch. She saw Mr Thomas punch Mr May who went down straight away hitting his head on the ground. She has been consistent on this since the day following.
It is apparent from the Fremantle Hospital medical records, exhibit 14, the patient care record upon Mr May's admission later on 3 March 2001, that it was noted there was 'blood around the mouth and swollen lips'.
There is evidence, including from Zeffron Reeves in his original statement which he acknowledged to be likely to be accurate, and of Kate Chadborne, that on being assaulted Mr May fell backwards flat onto his back hitting his head on the ground, or words to that effect.
In my view that event is consistent with a punch and inconsistent with a mere push or a rugby like fend. This is so especially given the size and weight difference between Mr May and Mr Thomas and the fact that although Mr May is described as having 'rushed' at Mr Thomas, according to Mr Thomas this was from a distance of 1 1/2 metres. That is not a distance in which any significant velocity or momentum could be achieved.
It also is significant that Mr Thomas was a relatively experienced boxer who, inferentially, knew how and where to punch. Of course he also knows how to fend off given he is a rugby player. However, a good crisp blow to the point of the jaw delivered by an experienced pugilist would be more likely to cause the event that occurred, I think, than a mere push or thrust with one hand out delivered by a stationary man.
There was a deal of attention paid to other subsequent occasions that night when Mr May's head came in contact with the ground. In my view none of those contacts would have been as impactful on Mr May's head as a fall from a standing position. The medical evidence did not support an assertion that the significant injury was sustained later. To the contrary.
I find, on the balance of probabilities, Mr Thomas punched Mr May in the jaw on the occasion alleged, causing Mr May to fall backwards and he hit his head on the bitumen.

Circumstances of the punch

However, having declined to accept the evidence of Mr Thomas, I do not consider that the adverse view I have of his reliability, or even credit, on that point disables me from having regard to any of his other evidence about the circumstances when he assaulted Mr May.
Mr May cannot help the court.
Ms Chadborne was walking towards Mr May when he was punched but may have been too far away to hear or does not recall.
The only evidence as to what was said or done at the critical moment comes from Mr Thomas and Mr Zeffron Reeves.
There are some differences in the evidence but the gist of what is said by both these men is that Mr May, full of rage and alcohol, came at them hand or hands raised perhaps to barge through them, to try and return to the party to get his girlfriend.
On the question of what passed between Mr May and Mr Thomas in the moment before the blow, the only witness for Mr May, Ms Chadborne, says Mr Thomas 'walked straight up to' Mr May and punched him. She makes this observation as she is proceeding up the driveway towards Mr May. She cannot say whether or not, or what, was said.
Mr Thomas and Zeffron Reeves however do describe a scenario giving rise to self‑defence issues. Mr May's case, relying on Ms Chadborne, is that the punch was delivered unlawfully, without preamble, not in defence of anybody and inferentially it was, in effect, summary punishment for obnoxious behaviour.
That is not impossible, especially given the extent of Mr May's obnoxious drunken boorish behaviour at the party.
However I do not think it is likely a some‑time amateur boxer with no criminal convictions at all would assault and knock down a man who has offered him no threat or insult.
Conversely it is plausible an angry and intoxicated freshly ejected misled party guest would seek to force re‑entry by physical means of some kind.
On the balance of probabilities, I think it more likely than not that Mr May posed a threat justifying a physical response.
In order to defend himself and/or Zeffron Reeves and/or to prevent him from re-entering the party, Mr Thomas punched Mr May once in the jaw and knocked him down.
I should mention again that Mr Thomas participated in a video record of interview on 28 March 2001 some 25 days after the event. This is not a contemporaneous statement and because of what must have been known after the passage of 25 days perhaps it has less value than it might otherwise. Nevertheless, Mr Thomas' evidence in court was reasonably consistent with that statement. There were some variations. For example he said in the statement he was wearing shorts whereas he now says he was wearing jeans. He said he drank all six of his Corona stubbies of beer whereas he now says he drank three or four.
These and other variations identified and stressed by counsel however seem to me to be relatively trivial. On the core matter of whether he raised the question of self-defence at that time it cannot be said that the video record of interview makes no such reference. There are at least two occasions when it does.

Reasonable force

The question whether the punch to the jaw was a reasonable response in the circumstances remains to be considered.
In pondering this I am mindful of what was said by Smith and Kennedy JJ in the Full Court of the Supreme Court of Western Australia in Hall v Fonceca [1983] WAR 309, 315. Their Honours were considering an appeal from a judge who had a similar task to that at hand and they said:
It is, however, always essential to have regard to the circumstances existing at the particular time and it is well established that the actions of a person in the position of the respondent are not to be too finely judged. The evidence suggests that the parties were separated by only half an arm's length when the respondent acted to defend himself against a threatened blow. His Honour rightly pointed out that it is the nature of the force used which is in question and not its consequences.
To the remarks of their Honours in Hall v Fonceca, I would simply add this. Fine combed analysis of a very brief tragic incident in which alcohol played a significant role, is always going to be problematic. This is the more so given that the incident occurred at night in poorly lit residential driveway. The antiquity of the matter, being more than 11 years ago, makes it even more difficult.
My attention was drawn to a decision of the Court of Criminal Appeal in Corker v State of Western Australia [2004] WASCA 125 where Wheeler J in reference to s 248 of the Criminal Code as it was in 2001 at [27] made reference to Connelly J in R v Lawrie [1986] Qd R 502, 505:
So far as the first paragraph, the primary rule, is concerned, it is obviously objective in terms. This is not to say however that what is reasonably necessary to make effectual defence will not depend on the circumstances as perceived by the defender. An honest and reasonable belief that a blow is about to be struck may justify a pre‑emptive blow.
And later in commenting upon the trial judge's direction to the jury about mistake (not raised here) her Honour said:
She expressly directed them in terms of mistake, and she expressly drew to their attention the fact that a person who is defending himself cannot be expected to weigh up exactly what extent of defensive action is necessary.
I bear those observations in mind. In the circumstances of this case obviously there was a major problem in the driveway with Mr May's drunken obnoxious behaviour and he was a very large man, angry, and wanting his girlfriend to come with him.
His girlfriend, Ms Chadborne, had been inside the house in tears as a result of his earlier conduct.
Zeffron Reeves and later Mr Thomas went out there to try and keep Mr May away from coming back inside the house. It is unarguable that their presence there was for the purpose of preventing another breach of the peace and further disturbance in the party.

It seems to me that accepting Mr Reeves' and Mr Thomas' account of the critical seconds before a punch was delivered which account is not contraverted by other evidence, that what was done was reasonably necessary to make effectual defence in all the circumstances.
Consequently Mr May's claim for damages must be dismissed.