Sternberg v State of SA and Niutta No. Cicd-95-692 Judgment No. D3544

[1996] SADC 3544

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Judgment of His Honour Judge Kitchen

Hearing

20/08/96 to 22/08/96.

Representation

Plaintiff Aaron Peter Sternberg:
Counsel: Mr. I. Milson - Solicitors: Moloney &; Partners

Defendant State of South Australia:
Counsel: Mr. B. Ikonomopoulos - Solicitors: Crown Solicitor

Defendant Jason Shane Niutta:
Counsel: Mr. B. Dixon - Solicitors: Dixon Gallasch Pty Ltd

CICD-95-692

Judgment No. D3544

20 December 1996

(Criminal Injuries Compensation Division)

AARON PETER STERNBERG v STATE OF SOUTH AUSTRALIA

AND JASON SHANE NIUTTA

CIVIL

JUDGE KITCHEN

This is an application for compensation pursuant to the Criminal InjuriesCompensation Act 1978 ("the Act").

The plaintiff claims compensation for injuries he alleges he suffered as a result of an assault committed upon him by the second named defendant (whom I will hereafter refer to as Niutta) in the night of 31st December, 1992.Niutta is known to some of the witnesses who gave evidence, by the surname Simmons.

On 2nd February, 1994 Niutta pleaded guilty in the Elizabeth Magistrates Court to assaulting the plaintiff on 31st December, 1992.He was convicted of common assault and fined $400.

The plaintiff's case is that Niutta punched and kneed him in the face fracturing the bones around his right orbit, the extent of the fractures being such that they necessitated a surgical repair, under general anaesthetic, by open reduction of the fracture involving the use of metallic screws.

Niutta's case is that he did not cause the injury, of which the plaintiff complains, in his assault upon the plaintiff.Niutta says that injury was caused by Dallas Lindblom who intervened in Niutta's attack upon the plaintiff and kicked or "stomped" on the plaintiff's face in an attack of his own upon the plaintiff in which he, Niutta, claims he played no part.Lindblom gave evidence in Niutta's case.

The parties are agreed that if the plaintiff succeeds compensation under the Act should be assessed in the sum of $11,000.

The plaintiff said that he went to the house of his friend Veterin Riley at about 5.30 p.m. on 31st December, 1992.The plaintiff had recently turned 17 years of age.Riley was the same age.From Riley's house the plaintiff and Riley made their way to Movieland, an amusement arcade, in Murray Street, Gawler where they played games for about four hours before going first to a house of a mutual friend, where they spent approximately one and a half hours, and then to Pioneer Park in Gawler where they arrived at about 11.30 p.m.

In the park there was a large group of young people, some of whom the plaintiff knew, drinking alcohol.He said all of them appeared to be very drunk.

The plaintiff related that he and Riley left the park after about 10 minutes and walked along Murray Street to a telephone box where he telephoned his mother to arrange for her to call for him at Riley's house.They then continued walking along Murray Street toward Adelaide Road.The plaintiff said that, on crossing a bridge, his attention was attracted to a noise behind him; he looked and at a distance of some 50 metres to his rear at the other end of the bridge he saw three males engaged in what he described as "play fighting", that is yelling at each other and rolling around in the roadway in a mock fight.He said police officers approached the group of three males and told them to get off the road.The police officers then left.

The plaintiff said that he and Riley continued on their way and then paused at a Mitre 10 store on Adelaide Road some thirty metres from the bridge to smoke a cigarette. As they were sitting on a window ledge of the store the three males approached them.The plaintiff said he recognised them, as pupils at the same school he had attended, to be Niutta, Lindblom and Simon Summers all of whom he said he had seen but not spoken to in the park.He said he was better acquainted with Lindblom than the other two.

The plaintiff said that Lindblom and Summers came to where he and Riley were sitting, Niutta following a few steps behind, and Lindblom and Summers spoke to him and Riley in what the plaintiff described as slurred speech - he said he could not understand what was being said and judged both of them to be drunk. Then, the plaintiff said, Niutta pushed between Lindblom and Summers and in an angry, aggressive manner took hold of Riley by the throat pushing him against the window next to which Riley was seated, holding him in that way for some time meanwhile saying something to the effect that Riley deserved to be punished for what he had done,Thereupon the plaintiff stepped back, Niutta advanced on the plaintiff, pushed him to the ground and stood over him gripping the plaintiff's rib-cage between his feet, shouting at the plaintiff "to get up and fight".The plaintiff described that he was held in this fashion for a time, Niutta continuing to shout at him to fight, and then Niutta released him in response to the plaintiff's calls to be let go.On being released, the plaintiff said, he got to his feet and ran off chased by Niutta, going behind a group of shops on the other side of the road.Still running he emerged back onto Adelaide Road, headed for the opposite footpath on the same side of the road as the Mitre 10 store and then saw Niutta in the middle of the road some ten metres away.Gaining the footpath at a point he estimated to be up to forty metres from the Mitre 10 store, the plaintiff said Niutta grabbed him from behind by his shirt and (he thought) his left arm, swung him around, Niutta punched him in the face two or three times then grasped his hair pulled his head down and twice kneed him "at an angle" across his face.The plaintiff said he was dizzy, disoriented and his face was numb and he fell to the ground on his side where he remained for up to a minute, during which nothing happened as he remembered.He then scrambled to his feet and ran along Adelaide Road away from the direction of the Mitre 10 store, zig-zagging as he went, into Eighteenth Street.He said his next memory was collapsing beside a telephone box near the Gawler Railway Station in Eighteenth Street.He then saw Niutta, Lindblom and Summers and hid himself.A person he knew as Matthew came from the station and he, at the plaintiff's request, telephoned the plaintiff's mother.She came for him in her car, drove to Riley's house and then took the plaintiff to the Lyell McEwin Hospital where he was examined and admitted.

The plaintiff was transferred from the Lyell McEwin Hospital to the Royal Adelaide Hospital during the early afternoon of 1st January, 1993.He was detained until 6th January 1993.During that period he underwent an operation to reduce the fractures around his right eye.A fuller description of his injuries and the treatment he received is contained in the report of Dr. Allen dated 20th March 1995 (Exhibit P3).There is no issue between the parties as to the nature and extent of the plaintiff's injuries

In cross-examination the plaintiff agreed that at the time that he was admitted to the Royal Adelaide Hospital he had little recollection of the events concerning the assault upon him.He denied he had discussed with Riley what had happened, stating that when his mother stopped at Riley's house en-route to the Lyell McEwin Hospital after fetching him from near the railway station, his mother asked Riley what had happened.The plaintiff did not say, and he was not asked, what if anything Riley replied.The plaintiff said that by the time he next saw Riley, who visited him in the Royal Adelaide Hospital, he had recalled the events of the night and there was no discussion between them then, or at any later time, about the assault.

The plaintiff said he drank two beers at the house of his friend whom he and Riley visited after being at Movieland and before going to Pioneer Park and that is all the alcohol he had on this night.Dr. Allen who was called to give evidence concerning his report of the treatment the plaintiff received at the Royal Adelaide Hospital, which he compiled from a review of the notes of that Hospital and those of the Lyell McEwin Hospital, said, without objection, that there was nothing recorded in the hospital notes about alcohol in relation to the plaintiff.Riley, who also gave evidence, said that he did not see the plaintiff drink any alcohol during the time he was with the plaintiff this night.I am satisfied the plaintiff was not affected in the slightest by alcohol, and I therefore entirely discount that any impairment of his memory, or period of amnesia, was attributable to alcohol - it was wholly a consequence of the injury he suffered to his face, an opinion expressed by Dr. Allen.

The plaintiff repeated in cross-examination that in the first incident involving Niutta, when he pushed the plaintiff to the ground, Niutta did not punch him.He maintained that Niutta punched him in the face when Niutta caught him after a chase.

On 18th July 1995 the plaintiff swore an affidavit which was filed with his application in these proceedings.Mr. Dixon, counsel for Niutta, put to the plaintiff that the affidavit contained no assertion he was punched by Niutta. The plaintiff said he was not sure.There was then this exchange:

"Q. Perhaps if you could read para. 8 out to the court.

A. 'Jason caught up with me between the Income Tax Office and the Kentucky Fried Chicken shop.He grabbed my upper arms with his hands and swung me around to face him.He then pulled by head down by holding the top of it with one of his hands.He then kneed me in the area of my right eye with one of this knees.'

Q. Do you agree that in your description of the incident in this affidavit 'that you have at no stage there mentioned being punched.

A. Yes, I would agree that, yes.

Q. In fact I suggest to you that at no stage in this document at all do you say that you were punched.

A. That might be so.

Q. Can you explain to this court how it is that you now say under oath to this court that you were punched not only once but you were punched more than once by Mr Niutta.

A. To being with from the start I didn't recall everything and not even straight away within the first month of everything, I spoke as things came to me.If I didn't say it then it's obviously because I didn't remember it.

Q. Do you think it might be because things have been put into your head by speaking to other people about it.

A. No, I don't think so at all.

Q. This affidavit was sworn on 18 July 1995, wasn't it.

A. Yes.

Q. Are you saying that your memory is better now in August 1996 than it was in July 1995.

A. Yes, I think I've thought about what happened to me a lot more since then.

Q. You swore this document for the purposes of taking proceedings out, didn't you.

A. Yes.

Q. You had given a statement to the police about the incident, haven't you.

A. Yes, and at that time I was very vague also.

Q. I suggest to you, that you're putting this together as you go.

A. No, I don't think so.

Q. You said in the affidavit that immediately you were grabbed and swing (sic) around your held (sic) was pulled down and you were kneed to the area of your right eye.

A. Yes.

Q. With one of his knees.

A. Yes.

Q. Once again, that is not what you are saying to the court, is it.

A. Not just now I didn't, no.

Q. In fact, when you were asked in examination-in-chief where you were kneed, you described the area from the top left down to the bottom right.

A. I said I directed by hand as well across my face.

Q. So you are describing an area involving your left eye, aren't you, rather than your right eye.

A. No, I said from the top of my left face across to the bottom of my right and I directed with my hand at the time.

Q. In your affidavit you said, 'He kneed me in the area of my right eye.'

A. To me that's still in the same area.

Q. It's the left eye, isn't it.If you're going to say which eye it was -

A. That's not my left eye, I said from the top of the left of my head -

HIS HONOUR

Q. What are your saying.

A. I said from the top of the left side of my face to the bottom of the right-hand side and I directed at the same time with my hand what I meant.

XXN

Q. Why did you not say in your affidavit that he kneed me in the area of the top of the left side of my face down to the bottom right side of my face.

A. Maybe at the time I thought that was the best way of explaining it.

Q. Is it perhaps that you knew that the injury was to your right eye and so you thought you better make the blow to your right eye.

A. No, I don't think so.

Q. The fact of the matter is that you are making it up as you go along aren't you.

A. No, sir.

Q. Because you can't recall what happened, can you.

A. No, I can recall now.

Q. Just as you said to the police and just as you said to the hospital, you can't remember.

A. If you suffered those injuries, would you remember."

The plaintiff denied that he had no recollection of being punched by Niutta or that his telling of that was after discussions with Riley.He repeated he was kneed by Niutta.It was put to him, that when he was on the ground after Niutta had chased and caught him, he was kicked to the head or his head was "stomped" on by Lindblom - he said, as to being kicked, "not from what I remember" and as to there being contact between Lindblom's foot and his head he said "no I think that is false", although he agreed it was possible he was unconscious for a second or more while he was on the ground.Mr. Dixon elicited a number of other conflicts in or differences between the plaintiff's evidence and what appears in his affidavit - for example the plaintiff swore in his affidavit that he telephoned his mother to fetch him from the phone box near the railway station.However these and the other differences between his evidence and the contents of his affidavit did not impress me as demonstrating that the plaintiff is to be rejected as an honest witness.

Riley's evidence is that he had no alcohol at all this night.Riley denied that he had ever spoken to the plaintiff about the matter of the assault.

Riley's evidence is that when he and the plaintiff had crossed the bridge on their way from Pioneer Park he saw Summers and Lindblom fighting in the middle of the road.He and the plaintiff walked on and then stopped at the Mitre 10 store.He said Niutta came to him grabbed him by the throat and pushed him against a window of the Mitre 10 store, holding him in this fashion for some forty seconds.He then saw the plaintiff begin to walk away whereupon Niutta shouted to the plaintiff to "come back here" released Riley and went to the plaintiff, hit him in the back, turned the plaintiff around and hit him in the (he thought) left side of his face with a clenched fist.The plaintiff fell over then got to his feet and ran off to the south from Mitre 10 chased by Niutta on a zig-zagging route toward the premises of Kentucky Fried Chicken about 100 metres from Mitre 10.He saw the plaintiff disappear behind a group of shops at that point then emerge and run to the footpath on the same side of the road as Mitre 10.He said that from his position at Mitre 10, where he stated Lindblom was also positioned, he saw Niutta who was waiting in the road catch the plaintiff and Niutta then "kneed the plaintiff in the guts and I could see there was a bit of a rumble going on ... that went on for two or three minutes" (page 55) during which Niutta punched the plaintiff, who was "hunched over", around the head and back three or four times.He then saw the plaintiff run away, zig-zagging as he went, along Adelaide Road pursued by, but only by, Niutta.At that point Riley said he (Riley) ran off along a street next to Mitre 10.

Riley's evidence is he next saw the plaintiff at about 1.30 a.m. seated in the rear of a car driven by the plaintiff's parents to the house of Riley's parents.He said that the plaintiff's face was badly bruised and he was in what Riley described as a state of shock.He said he did not speak to the plaintiff at that time about what had happened nor did he speak to him about that matter when he next saw the plaintiff on the occasion he visited the plaintiff in hospital.His evidence is that he has never spoken to the plaintiff about the incident on this night.

Riley was thoroughly cross-examined on his evidence.As might be expected, unless he and the plaintiff had collaborated to present a common story or had discussed the events of this night in some detail, there were a number of striking dissimilarities between Riley's evidence and that of the plaintiff about the actions of Niutta.Having observed Riley during his evidence I judged he was relating what he honestly remembered.I reject the submission that he and the plaintiff have collaborated upon the substance of the evidence each of them gave.I accept that Riley has not discussed with the plaintiff the incident of this night - it is beyond belief that there would be so many differences in the detail of their respective versions if that had occurred. Riley was taken to his statement to the police; he agreed that in his statement he did not relate that after Niutta's first assault upon the plaintiff the plaintiff ran away to the rear of some business premises and it is the case he acknowledged there were other differences between his evidence and what he told the police particularly that in his statement he did not say Niutta had "kneed" the plaintiff; indeed the transcript of evidence (p. 77) records that Riley said in effect he did not now recall Niutta kneeing the plaintiff "anywhere", which I find puzzling in view of his evidence before that passage, that Niutta did knee the plaintiff.However, I am satisfied he was relating what he now remembers.I note he was unable to say what Lindblom did after he (Riley) ran off down a side street, but it is clear on his evidence, and that of the plaintiff, there were two incidents of Niutta attacking the plaintiff - the first very close to Mitre 10 and the second many metres away after the plaintiff had run off chased by Niutta.

I accept the evidence of the plaintiff and Riley that the latter had had no alcohol whatsoever this night and that the plaintiff had drunk at the most two drinks of beer.I am satisfied that neither of them, nor their memory of what happened this night, was affected by alcohol in any way.Not so Niutta and Lindblom both of whom I find were very much affected by alcohol.

Niutta's evidence is that he was in Pioneer Park drinking with a few friends - he recalled having several drinks.He left the park with Lindblom and another "bloke" to make their way to a party in Barrett Road.He said that on their way they came upon the plaintiff and Riley near the Mitre 10 store.He described that he applied a "headlock" to Riley for about a minute, then turned on the plaintiff pushing him with an open hand causing him to fall to the ground, then he gripped the plaintiff's chest between his ankles.He said the plaintiff asked to be allowed to get up, he released him and the plaintiff got to his feet and ran off.Niutta said he gave chase, the plaintiff ran behind premises on the other side of the road from the Mitre 10 store, then emerged heading for the Mitre 10 side of the road.Niutta said he caught him "two premises up from Mitre 10", grabbed the left side of the plaintiff's body, turned him around and struck him with his clenched right fist twice "to the left side of his head, face".He said the plaintiff fell to the ground on his back.He then saw Lindblom come past his (Niutta's) left side and stomp his foot on the plaintiff's head near the right eye and cheek bone with what Niutta described as a "pretty fierce blow".Niutta said he did not see Lindblom when he was chasing the plaintiff and he said there was no pre-existing arrangement between him and Lindblom to fight the plaintiff or Riley - he had no idea Lindblom was going to become involved.He related that he left the plaintiff lying on the ground after Lindblom had stamped on the plaintiff's head.He denied he kneed the plaintiff, struck any blow to the right side of the plaintiff's face or hit him on the back of the head.

In cross-examination Niutta said that he was 18 years old, weighed about 15 stones and was 184 centimetres tall at the time of the offence.He described Lindblom as a good friend whom he had known for 10 years.His evidence is he spoke to Lindblom about two weeks before the trial and asked him if he had spoken to the plaintiff's counsel and whether "he was going to admit to doing what he did and he told me he was going to", and also asked Lindblom the same question when he saw him on the morning of the trial.

Niutta thought it was about 9.00 p.m. when he had arrived at the park where he drank full strength beer at the rate of one stubby every fifteen to thirty minutes.He could not remember what he had been doing before he went to the park or when he had had his first drink on this day.He described Lindblom, with whom he was drinking beer in the park, to be "fairly" drunk or "reasonably" drunk when he and Lindblom eventually arrived at Barrett Street, after his attack on the plaintiff, at some time before midnight.He said he did not "think" his own state was similar to that of Lindblom "because I handle my alcohol a bit better than (Lindblom)".He rejected the suggestion his and Lindblom's tussling with each other in the middle of the road (which he agreed occurred) was engaged in because he and Lindblom were both drunk.

Niutta agreed that he was questioned by the police on 30th January 1993 about his attack upon the plaintiff when it was put to him that he had punched and kneed the plaintiff.He declined to answer their questions.In light of him being questioned by the police within about a month of the incident I have considerable reservations about his evidence that he does not remember where he had been or what if anything he had to drink before going to the Park.

During his cross-examination Niutta agreed he chased the plaintiff, after he released the plaintiff from between his ankles, in order to catch him and see if he would fight.It was put to him that he was drunk and looking for a fight; his revealing reply was "I wasn't looking for a fight".

Even accepting Niutta's evidence that he "probably" had more beer when he arrived at Barrett Street I am drawn to find that his professed absence of memory for events before going to the park is more likely to be explained by a desire to minimise just how much alcohol he had drunk before his attack upon the plaintiff.I have no doubt he was more affected by alcohol than he was prepared to admit and I do not believe he remembers with any clarity what he did on this night; to my mind his evidence consisted almost exclusively of accepting or rejecting the plaintiff or Riley's version of events and once he was taken to matters beyond that focus his recollection of what he did was notably fragmented or non-existent.He denied he had "memorised" a version of events for the purpose of giving evidence; in my assessment of him and his evidence that suggestion was, more likely than not, close to the truth of the matter.

In cross-examination Niutta was tested about what he saw Lindblom to be doing when Niutta chased the plaintiff to the point where he, Niutta, stopped near premises behind which the plaintiff had run.He said Lindblom was close by and that Lindblom had followed him in his chase of the plaintiff, a significantly different version from his evidence, as I have summarised, that he did not see where Lindblom was during his chase of the plaintiff.

Lindblom said he was having a few drinks in the park with Niutta and others and he also smoked two, and possibly more, "pipes" of marijuana whilst he was there.His description of his condition when he left the park ranged among expressions such as "pretty well happy", "not over drunk, not under drunk", "I don't think I was (unsteady) on my feet", "bit intoxicated but not falling all over the place".He said he could not remember everything about this night.

He related that he and Niutta were "fighting and mucking around" on the bridge on their way from the Park - he does not recall police officers speaking to them about that - and then they walked on.He said he saw the plaintiff and Riley "near Mitre 10 somewhere", Niutta went ahead of him and there was a "bit of a scuffle or something".He said he went to where that was occurring and saw the plaintiff on the ground and "I heard that he said something about one of my mates that passed away and I sort of give his head a bit of a shove with my foot ... I was just standing there and then I heard sort of what he said and then I just, I kicked him" (page 164).He described he was wearing rubber-soled sneakers and it was the "bottom bit I think, in between the bottom of my toe, it was sort of around the front there" that connected with the plaintiff's head, the blow being "not as hard as I could do but not real soft sort of thing" but he could not say which part of the plaintiff's head he kicked.

Lindblom said that the plaintiff then got up and ran off chased by Niutta, and he (Lindblom):-

"A. ... sort of started chasing him and then I stopped and went a bit further up towards Main North Road and down I think the alleyway or driveway and back out of there and sort of I think Aaron might have sort of stopped in the middle of the road and Jason was chasing him and they sort of collided or somehow and then Aaron got to the ground, I was still back a little bit sort of thing because I stopped running.

Q. Then what happened.

A. Aaron was on the ground and whatever from there I'm not sure. I was back a bit and then I got up to there and my sister was - I think she somehow got up to there somehow because she was yelling or something.

Q. Then what happened.

A. Then eventually they got up and I think they - like we left them there and went down to, I'm not sure what road it is, I can't remember the name of the road, I know what road it is, it goes down the side of - you have got Mitre 10, you have got a road that goes on the left hand side of Mitre 10 and you have got Main North, we went down that way.

Q. Who is 'we'.

A. Me and Jason."

Lindblom stated he gave his evidence from his own recollection of the events, genuinely recalling the incident in the detail he had related.There was this exchange between Niutta's counsel and Lindblom:-

"Q. Are you sure that it is not something that has been told to you and that you are recalling from having been told.

A. I remember doing it like - over that night I ended up going - I ended up getting locked up for a warrant and I come out and I sort of forgot all about it, I thought nothing of it and then we were talking about it later on and I sort of got reminded what happened and I thought, yes it did happen sort of thing.

Q. So it is, just to be absolutely sure it is something that you can actually recall doing.

A. I remember doing it, yes." (p. 165)

and at p. 168

"Q. Do I understand from your evidence that the following morning your recollection of what had happened the night before was somewhat vague.

A. Yes, I didn't think nothing of it sort of thing until I got reminded that yes, there was a bit of a fight.

Q. Is it, without wanting to repeat myself too often, is it the case that you can positively recall from your own memory your foot coming into contact with Sternberg's head.

A. Yes, I do remember that, yes.

Q. Is it possible that because of the amount of alcohol you had consumed that you may have the sequence of events confused.

A. I don't think so, no.I sort of remember it as there and running and stopping sort of thing, yes."

In cross-examination by the Crown Lindblom said that he kicked the plaintiff when the plaintiff was on the ground next to the Mitre 10 store, because Niutta told him the plaintiff had said something "about one of our mates, one that passed away you know, not too long ago.He said something like that, and I didn't like it".

Under questioning by the plaintiff's counsel Lindblom said that when Niutta chased after the plaintiff from the Mitre 10 store, he (Lindblom) ran after them for a short distance and then stopped in the roadway, and he was about 20 metres away from the point where Niutta caught the plaintiff.He saw the plaintiff fall to the ground and "then (I) slowly made my way up there and then there was him on the ground and I not sure if he got up and the left or whether we just left".He said he did not kick the plaintiff at that time.

Lindblom said that he gave a statement to the police on 20th December 1993 (Exhibit P4)in which among other things he said "I did not assault (the plaintiff) at all; I had nothing against him".He said that was a lie.He agreed he spoke with the plaintiff's counsel (Mr. Milson) on 4th June 1996, read a copy of his statement to the police and told Mr. Milson that what was in the statement was correct.He said that was a lie.He said he subsequently thought about it and had wanted to change his "statement".

Before he answered questions in examination in chief concerning the part he claimed he played in what happened to the plaintiff on this night, I informed Lindblom of his right to refuse to say anything that may incriminate him of an offence.In his evidence and in cross-examination he said he "remembered" kicking the plaintiff.I am not prepared to accept Lindblom's evidence unless there is credible evidence to support the substance of what he said was an assault by him on theplaintiff by kicking his head.Lindblom, I have no doubt, was drunk at the time, he claimed he was "reminded" by Niutta, or someone, what had happened this night and he asserts that what he told the police and Mr. Milson was a lie.

In his evidence in chief Dr. Allen said that the fracture of the plaintiff's right orbit was more consistent with his face being struck with a knee or punched with a fist than being kicked with a boot.From the description of the injuries contained in the hospital notes there was no reference to abrasions or lacerations in the region of the fracture so in his view it is less likely the injury was caused by the plaintiff's head striking the ground.In his opinion the presence of a facial fracture of the nature of that the plaintiff suffered would usually be sufficient to cause a loss of consciousness and a period of amnesia.He noted there was nothing recorded in the hospital notes to suggest there was any injury to the left side of the plaintiff's face but he said that did not necessarily mean the plaintiff had not suffered blows to that part of his face becausethe examiner may have focussed on the site of major injury and omitted to record minor marks.

Dr. Allen was asked "what is the likelihood of the injury being caused by a kick or a stomp to the right side of the face":-

"A. I think a kick is unlikely, certainly a kick from a boot, although I've seen a number of injuries caused by boots and I'd say almost without exception there are abrasions or lacerations associated with the rough surface of the leather of the shoe or boot.

HIS HONOUR

Q. Do those remarks apply equally to the concept of a stomp.

A. I'm not quite sure what is meant by a stomp.

Q. Stomp I guess is the placing of - a sort of marching step, a stomping down. (NOT ANSWERED).

HIS HONOUR.

Q. I think stomp is another word for stamp.

A. I think that's unlikely for the same reasons, it would be a fairly solid surface, hard leather.I would have expected abrasions or a laceration in most instances. I'm sure that someone could come up with an exception.

XN

Q. I want you to accept just for the purpose of this question:if the plaintiff had been punched on the right side of the face and then fell to the ground and he was then kicked or stomped on the right side of his face, accepting those two events occurred, are you able to say which blow caused - would you be able to differentiate which blow would have caused the plaintiff's injuries.

A. I don't believe I could."

In cross-examination by Niutta's counsel Dr. Allen was asked whether the fracture to the plaintiff's right face could have been caused by a kick with a foot shod with a track shoe or sandshoe rather than a boot.

"A. They are certainly softer.The only thing is I think that there is often an abrasive component of one surface moving over another as distinct from a direct blow just like that (DEMONSTRATES) it stops.Often with shoes the nature of the material also, usually some friction occurs.

Q. If the injury had been caused by the victim or the patient lying on the ground, and a person with track shoes as opposed to boots coming along and treading forcefully straight down onto the right side of his face, would that be a possible cause.

A. I would say it would be possible.It would be very silly of me to say it's impossible.I could imagine that happening.I could easily imagine a situation where there's not a lot of side to side friction, just straight down with a soft shoe.I could imagine that's feasible".

but at page 100 he said a kick or a stomp was unlikely to be the cause of the plaintiff's injury.

In my view the opinions of Dr. Allen do not persuasively support Niutta's evidence, or Lindblom's evidence, that the plaintiff was "stomped" by Lindblom and that caused the serious injury to around the plaintiff's right eye.I have already said that Lindblom was an unreliable witness.Niutta's evidence also was unconvincing and not credible.

Common to all the witnesses is that there were two incidents of attack by Niutta upon the plaintiff one by the Mitre 10 Store the other at a distance from the store after the plaintiff had been chased by Niutta.What was done to the plaintiff by the Mitre 10 Store, in my opinion, was of far less injurious severity than occurred in the second attack - the plaintiff's running escape to the safety of premises some distance away, and on the other side of the road, is inconsistent with him having suffered in the first incident an injury of the severity of that around his right eye.Lindblom says he kicked the plaintiff only when the plaintiff was on the ground next to the Mitre 10 Store.No other witness saw or spoke of that.Lindblom denied kicking the plaintiff in the second incident; the evidence of the plaintiff and Riley (so far as he observed the second incident) is to the same effect.Only Niutta claims that Lindblom kicked the plaintiff in the second incident.I do not believe him - in my opinion he was drunk and has no clear memory of the events of his assault upon the plaintiff.If Lindblom did kick the plaintiff, and I am not convinced he did, then it happened in the first incident, not the second, and caused little or no injury to the plaintiff and certainly not the serious injury around his right eye.So far as I am prepared to give any weight at all to Niutta's evidence, where it is in conflict with the evidence in the plaintiff's case, he is quite wrong in his assertion that Lindblom kicked the plaintiff in the second incident and caused the serious injury to the plaintiff's right eye.

Niutta said that in the second incident he punched the plaintiff in the left side of the face (he said twice) and denied kneeing him in the face.The plaintiff said he was punched in the face and kneed in the face; I accept his evidence.Riley who was some distance away said he saw Niutta punch the plaintiff around the head and back three or four times; I accept his evidence. (I put to one side Riley's puzzling "retraction" of seeing Niutta knee the plaintiff.)The plaintiff and Riley's descriptions of Niutta's actions in the second incident are sufficiently similar for me to be satisfied on the balance of probabilities, that the injury to the area of the plaintiff's right eye was caused by Niutta's attack on the plaintiff.I do not believe Niutta's evidence that he "knows" he punched the plaintiff on the left side of the face or his evidence that he did not knee the plaintiff in the face.

I find that only Niutta struck the plaintiff in the second incident and it was he and he alone who caused the injuries to the plaintiff's face.I do not accept the evidence of Niutta and Lindblom to the contrary.

I am satisfied that the plaintiff suffered the injuries, described by Dr. Allen, in the assault upon him by Niutta alone, an assault which was an offence to which Niutta pleaded guilty.I find, beyond reasonable doubt, that that offence was committed by Niutta.That his plea to common assault was, as I understand, accepted by the prosecution to a charge of the more serious offence of assault occasioning actual bodily harm is not to the point.

There is no evidence to even suggest that any conduct of the plaintiff contributed to the commission of the offence committed by Niutta, or the injuries the plaintiff sustained.

There will be an order that the Crown pay the plaintiff $11,000 as compensation for his injury, an amount the quantum of which has been agreed between all parties.

The only information the court has concerning Niutta's means is that which is recorded at page 157 of the transcript.

I will hear the parties on the issue of costs.

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There will also be an order that the plaintiff have his costs, but not exceeding the amount prescribed in the Act against the defendants.