Torts - Trespass - Trespass to the person - What constitutes and defences thereto - Assault - Justification - Onus of proof on defendant to establish - Onus of proof on plaintiff to prove acts complained of.

Pearce v Hallett [1969] SASR 423; McClelland v Symons [1951] VicLawRp 21; [1951] VLR 157, applied.

Judgment ID Number: [2000] TASSC 147

CHARLES LESLIE ATHOLSTON HOWARD v BRUCE WILLIAM WING

1 Two actions were brought by the plaintiff against the defendants. In action 305/1998 they were sued for damages for an assault and battery allegedly committed by them on 26 December 1984 at 75 Madden Street, Devonport. In the other action, 613/1990, they, together with Donald Nicholas, were sued for damages for conspiracy, the allegation being that on or about 21 December 1984 the three defendants wrongfully and maliciously conspired together with intent to assault and injure the plaintiff by enticing him to 75 Madden Street on or about 26 December 1984 where, on the latter day, he was assaulted and battered by the above defendants, that is to say not by Mr Nicholas.

2 Prior to trial an order was made consolidating the two actions but there was no ancillary order concerning the pleadings. The trial proceeded therefore upon the basis of the separate pleadings in the original actions.

3 In action 613/1990 an interlocutory judgment in default of appearance was obtained against Mr Nicholas. When the trial of the consolidated action commenced the plaintiff could not prove that Mr Nicholas had been given notice of the hearing date and through his counsel, he elected only to proceed with the trial against the abovenamed defendants.

4 The second defendant is the daughter of the first defendant and at the material time, on 26 December 1984, she was married to the plaintiff. However, for some time their marriage had been unhappy and there had been many arguments between them.

5 Concerning the events of 26 December 1984, the plaintiff claimed to have little memory. The second defendant lived at 75 Madden Street and he had travelled there from Launceston the previous day. His evidence was that he recalled the second defendant was speaking to her mother outside the house, on the opposite side of the street. It was not uncommon for him to record other persons' conversations and on this occasion he recorded what the mother and daughter were saying to each other, using what he described as a directional speaker, but which I presume was a microphone. He was upset over what he heard. He explained this by saying that the second defendant had been telling him about effecting a reconciliation whereas she was telling her mother that it would not work and she hoped that the plaintiff would leave her again. He did not claim to remember anything about the rest of the day. His evidence was that he had no memory of the first defendant being at the house. The evidence established that his son, Tony Howard, was also at the house that day but he was not called to give evidence. I was given no explanation for that. I infer that his evidence would not have assisted the plaintiff's case.

6 The persons who were at the house, other than children, were the plaintiff, Tony Howard, the first and second defendants and Mrs Shirley Wing, the wife of the first defendant. I did not understand her to be the mother of the second defendant.

7 The first defendant gave evidence that on the previous day he dislocated his left shoulder and visited a doctor. On 26 December his left arm was in a sling but the arm was not completely immobilised. He could not raise it but he could press it against things. He went to the Madden Street house, where the second defendant lived, to help set up a small inflatable swimming pool for the use of her children. He was using a spade with his right hand, to smooth the ground upon which the pool would sit. He did not explain how the second defendant came to be in his presence outside, but gave evidence that the plaintiff came out of the house, yelling and swearing and carrying on, dressed only in a pair of underpants. He told the second defendant that it was all over and that she could pack her gear and get out. The first defendant said that the plaintiff was quite incoherent at the time, the expression on his face was contorted and it was quite apparent that he had lost his temper. He described the plaintiff as being borderline out of control, that it would not have taken much to push him over the edge but at the time he was trying to control himself. The plaintiff tried to take the spade from the first defendant who held onto it, and after giving it two or three twists and pulls the plaintiff let it go. He was abusing the second defendant and then told her "that it was finished and that she would have to get out and to get in and pack her gear and go". The second defendant went inside the house. The plaintiff remained outside for a minute or two, swearing and cursing, and then he too went back into the house.

8 The first defendant said that his wife, Mrs Shirley Wing, was present and that they heard a loud thump and a scream from the second defendant. They both went into the kitchen and the second defendant came up the passage and into the kitchen and joined them. She was clearly dishevelled, upset, screaming and crying. There was a table which more or less divided the kitchen. The first defendant and his wife were on one side of it and the second defendant came out of the passage on the other side of it and sat on a chair or a stool. The plaintiff then came into the kitchen on the other side of the table from Mr and Mrs Wing. The first defendant said that the plaintiff was still ranting and swearing and he grabbed the second defendant by the hair and the back of her neck. He had a short kitchen knife in his hand and threatened her with it and then pulled his hand back, giving the appearance that he was about to stab her. However, for some reason the knife flew out of his hand and across the room. The second defendant slipped out from his grasp and came around towards the first defendant. The plaintiff followed her and made her sit on a stool.

9 The plaintiff was swearing, cursing and frothing at the mouth, according to the first defendant, and he grabbed the second defendant around the throat. Her eyes rolled back in her head and she slumped and the colour went out of her face. The first defendant thought that she was losing consciousness. He yelled at the plaintiff to stop it but he took no notice. The plaintiff was right out of control at that stage and the first defendant thought that his daughter would have her life squeezed out of her.

10 It was the first defendant's evidence that to make the plaintiff let go of her, he hit the plaintiff once in the side of the face with his right fist. It was only a light blow to jerk the plaintiff to his senses. The first defendant had no intention of harming him. The plaintiff let go the second defendant, turned and came at the first defendant, pulling his fist back. Believing that he was going to be attacked, the first defendant then struck the plaintiff fairly hard. I understood that the blow was again to the face. The plaintiff went backwards to the sink, which was two or so feet behind, and he came back off the sink towards the first defendant, who thought he was being attacked again. He then hit the plaintiff hard "full in the face". He described the plaintiff's nose, and around that area, as half dissolved and pulped, and the plaintiff went backwards, down and onto the floor. He stood back and watched the plaintiff for a minute or two, expecting him to get back up, but he remained on the floor breathing slowly and in a very laboured way. The first defendant did not know who, but somebody called the police and ambulance and the plaintiff was taken away.

11 In answers to interrogatories sworn in 1989, the first defendant said that he struck the plaintiff with his right fist three or four times and that he did not use as much force as he could apply. He described the plaintiff 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 the first defendant said that he struck the plaintiff with his right fist three or four times, hitting harder each time he came back at him. He said "I hit him fairly hard but I could have put more in. ... I broke my little finger and dislocated that one, as you can still see, when I hit him and I could have hit harder, but I didn't want to do any more damage than what I had to do to stop him from doing what he was doing". He said that after the striking of the first blow, the second defendant got out of the room. After the plaintiff had fallen to the floor, he presented as being unconscious.

12 Asked for more detail concerning the nature of the punches thrown by him, his evidence was as follows. The first blow was intended to wake the plaintiff up to what he was doing, a slap more or less on the side of the face. The second was a punch to the side of the jaw, the third and fourth, if there was a fourth, were pretty well square on the face. The second blow was a harder punch than the first blow and I gathered that he meant that the last punch was the hardest of all. At no time did he strike the plaintiff in the forehead, although it might have been to the nose, eyes and jaw. He did nothing to cause the plaintiff to suffer bruising to his testicles. Once the plaintiff was lying on the floor, the first defendant did not think that there was anyone in the room with him other than the plaintiff's son, Tony, who the first defendant described as being there right from when the plaintiff first hit the floor.

13 I turn to the evidence of the second defendant. She said that the first defendant arrived to put in the swimming pool and her mother arrived separately. She went to talk to her mother on the other side of the road. When her mother left she went inside and the plaintiff called her into the bedroom, where he accused her of telling her mother one thing and telling him another. He became physically abusive, pushing her into the wall causing the plaster to be indented, and kicking her on her thigh as she made her way out the door to join her father outside. The plaintiff followed her out wearing only underwear. He was shouting, ranting and raving and made a grab for the shovel which was held by the first defendant. The latter kept a firm grip on it and told the second defendant to go inside and get her things and they would leave.

14 The second defendant then went inside and she referred to four people being in the kitchen at the same time, they being the plaintiff, the first and second defendants and Mrs Shirley Wing (the first defendant's wife). She described the plaintiff going over to the kitchen door and passing the sink, where he picked up a small knife and held it at her throat. At that time the first defendant was trying to talk to the plaintiff and calm him down. She then sat on a stool and the plaintiff also sat. The first defendant was standing near the sink and, possibly at that time, Shirley Wing was standing near the sink too. The second defendant said that the plaintiff was talking at her and he grabbed her hair, which was in a ponytail, and then grabbed her around the throat. She could not breathe properly because of the pressure on her throat and she was blacking out. She believed that she would in fact have blacked out if the pressure had continued. The plaintiff's face was distorted at the time and when he spoke spit was coming out of his mouth. She then saw the first defendant's hand come over the top of her head and hit the plaintiff in the facial area. As a result the plaintiff released his grip on her and turned to the first defendant, lifting his arm as if to swing at him. She had fallen off the stool and immediately made her way out of the room. She did not witness what followed in the kitchen. The plaintiff had turned his attention totally to the first defendant. She did not know whether Shirley Wing left the room with her.

15 The second defendant said that the plaintiff's son, Tony Howard, was at the house at the time but she accepted that he may have been in the back yard at the time the plaintiff had hold of her by the neck in the kitchen. After leaving the kitchen she made her way to the next door neighbour's house. When she went outside Tony Howard had already started taking her sons there and she went out to assist him with that. She then returned to the doorway, collected her daughter, climbed the back yard fence and went to the neighbour's house. The first defendant had helped her over the fence and joined her at the neighbour's house. Tony Howard remained at 75 Madden Street, along with the plaintiff.

16 Mrs Shirley Wing's evidence was of going to the house with her husband, the first defendant, to put the swimming pool down for the second defendant and her children. Her husband's arm was in a sling and he was using his other arm to level the ground with a spade. She heard a thump and the second defendant ran out into the yard screaming, followed by the plaintiff ranting and raving, dressed in his underpants. He was swearing at the second defendant and told Mrs Wing and her husband to get her out of the house and out of there. He tried to grab the shovel from the first defendant, and the second defendant ran in behind her father. Mrs Wing said that she went inside when the first defendant sent her in to help the second defendant get some clothes and she presumed whatever was needed. However, she only went as far as the kitchen where the second defendant joined her, having come from the bedroom carrying nothing. The plaintiff, who had put on more clothing, also entered the kitchen. He took up a knife, grabbed the second defendant by her ponytail, pulled her head back against the wall and waved the knife around in front of her face. For some reason the knife fell out of his hand and went across the room and the second defendant managed to move away closer to where Mrs Wing and the first defendant were on the other side of the table.

17 Mrs Wing said that the plaintiff then made the second defendant sit and he grabbed her throat with both hands and squeezed it. The first defendant called the plaintiff by name and told him "lay off" or "that's enough", or words to that effect. The second defendant's face at first went red and then "a funny, purpley shade". Her head was "sort of right back" with "her mouth sort of opened a bit and there was not a sound coming out of her mouth". Mrs Wing thought that the plaintiff would have killed the second defendant and it was only when the first defendant hit him that he let go. On doing so, the second defendant fell to the floor. On being hit the plaintiff went back against the sink and he came back with both fists up. Mrs Wing said that she stepped out of the way and the second defendant moved back somehow. She was not sure how it happened. Everything seemed to move very quickly and the first defendant hit the plaintiff again. She did not believe that the plaintiff got a blow in. She and the second defendant moved out of the room into the porch. Mrs Wing remembered one more hit and then she started screaming, getting a hit hysterical, and she remembers little thereafter, other than the fact that she went next door.

18 It was her evidence that on two occasions the first defendant asked the plaintiff to stop what he was doing but he seemed to turn a deaf ear. Spit was coming out of his mouth as he was talking non-stop and abusing the second defendant. Mrs Wing said that she was terrified.

19 Mrs Wing described the first punch thrown by the first defendant as having very little force. The second punch was to the jaw and following it the plaintiff came back at the first defendant in the same manner as before. The first defendant then hit him again, this time in the middle of the face, and she saw him fall backwards as a consequence. She was adamant that there were two blows to the jaw and one to the face. Counsel for the plaintiff put to her that there were more than three blows as described by her and her response was "no way". She agreed that after the third blow she was hysterical and she screamed. The last she saw of the plaintiff, when she was about four metres from him, was of him lying on the floor. She and the second defendant went next door where a lady made them a drink. The first defendant joined them there and had a drink also. She was unsure as to how much later it was before he joined them. She accepted that it may have been a couple of minutes but she was unsure. She did not know who called the police and the ambulance.

20 Evidence was also given by Mrs Josephine Howard, the divorced wife of the plaintiff. He has lived with her since he was discharged from hospital in 1985. She said that on about 9 January 1985 she was visited at her home by the first defendant. She took the plaintiff's side and was aggressive towards the first defendant, accusing him of attempting to murder the plaintiff. She said that in explanation the first defendant said:

"Jo, you know me, I have had many years and many reasons to hate Charles over the years, and I promise you, I only hit him with my fist once or twice."

She said that the first defendant made no mention of the second defendant. He said that he had hit the plaintiff with his fists and she asserted that she checked his hands and he did not have a mark on them. She accepted that she was aggressive and furious and said that she called the first defendant "every up-jump and never come-down I could think of". The first defendant's version of that conversation was different. Mrs Howard did not seem to be very upset at him. She asked him what had happened and why he had hit the plaintiff. He told her that the plaintiff was choking the second defendant and that Mrs Howard said words to the effect that "you had a right to defend her, but it looks like you have hit him too hard". He could not remember how many blows he told Mrs Howard he had struck. I have no reason to accept one version of the conversation over the other, and I make no findings as to it.

21 Concerning a conspiracy, in the statement of claim in action 613/1990 the plaintiff pleaded that on or about 21 December 1984 the first and second defendants and Donald Nicholas conspired together with intent to assault and injure the plaintiff by enticing him to 75 Madden Street on or about 26 December 1984. He further pleaded that in furtherance of that conspiracy he was so enticed and was assaulted and battered by the first and second defendants. There is, of course, no evidence that the second defendant struck him. The only evidence upon which he relied in support of his allegation of a conspiracy was a telephone conversation he had subsequently with Mr Nicholas. He did not know when the conversation was but accepted that it may have been shortly before he instructed his solicitor to commence the action alleging conspiracy. That action was commenced in December 1990. He tape recorded the conversation and a transcript of it was admitted into evidence, by consent, as evidence of the truth of what was said. Almost all of what was said was substantially irrelevant to the main issues at the trial. The plaintiff relied on part of the following passage towards the end of the conversation. The italics are mine and highlight what the plaintiff relies upon.

"Plaintiff Well why would you want to buy a car and put it into a blokes name by the name of Haines

Nicholas No. Actually I can buy them thats more than I can say for you Charlie you can't. You can't afford one

Plaintiff No because I've got an asshole like you and a slut like that one down here

Nicholas Yeah well that is right but that shows what you were like because we couldn't suffer you we had to get rid of you out of the way

Nicholas I organised it, did you think I did a good job of it

Nicholas Yeah but do you reckon I did a god [sic] job or not. Do you reckon I got results or not, because I don't like doing things if I dont get results."

22 In that conversation there was no reference to the first or second defendants. It is incapable of establishing on the balance of probability that either the first or second defendant were parties to the conspiracy alleged by the plaintiff. It is therefore unnecessary to consider the tort of conspiracy further. However, I comment about two matters. I reject the submission of counsel for the defendants that the time limit for bringing an action for conspiracy is three years. In my opinion it is not an action for breach of duty and it therefore follows that the three year limitation period of the Limitation Act 1974, s5(1), does not apply and that instead the six year limitation period of s4(1) applies. I also note my understanding that if a tort is committed by several persons acting in concert, and damage is caused, the prior agreement adds nothing to the tort, and has been said to merge in it, for the parties will be joint tortfeasors. According to one view, a combination to commit a tort such as battery, is no longer actionable as a conspiracy, the participants being simply liable as joint tortfeasors for the particular tort itself. See Galland v Mineral Underwriters Ltd [1977] WAR 116; Ward v Lewis [1955] 1 WLR 9 at 11; Pratt v British Medical Association [1919] 1 KB 244 at 254.

23 There was no evidence that the second defendant committed an assault or battery upon the plaintiff or that she was in any way a party to an assault or battery. Therefore there will be judgment for the second defendant against the plaintiff.

24 To prove an unlawful assault and battery against the first defendant, the plaintiff relies substantially on the evidence of the injuries suffered by him and of the violence that would have been necessary to cause them. It is to the evidence about those matters that I now turn. I make a preliminary comment that I found it an unsatisfactory aspect of the case that the records of the Royal Hobart Hospital and the Launceston General Hospital were not produced, apart from an incident report dated 31 December 1994 which concerned an accident suffered by the plaintiff while an inpatient at the Royal Hobart Hospital. I will say more about that incident report in due course. Apart from it, there was no evidence given at the trial concerning the condition of the plaintiff while he was an inpatient at the Royal Hobart Hospital, except for the evidence of Mrs Josephine Howard about a visit to him about a week after the incident. There was no evidence from police, ambulance officers or doctors. It might have been of great assistance when determining the extent of the injuries suffered by the plaintiff.

25 Mrs Howard said that when she went to the Royal Hobart Hospital about a week after the injury, the rails on the plaintiff's 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. He was acting like a child, wanting to kiss everybody, which was most unlike him. He appeared to be pleased about being visited, but she did not think he knew who his visitors were. He was incapable of looking after himself in any way. He could not control his bowel movements, she said.

26 The incident report of the Royal Hobart Hospital for 31 December 1984 noted that the admission diagnosis was a "Closed Head Injury (MVA)", which I take to be a record that the plaintiff had been admitted to the hospital with a closed head injury caused in a motor vehicle accident. Why that was recorded was not explained by the evidence. The report noted that before the incident on 31 December 1984 the plaintiff was disorientated. It recorded that at 3.45am that day noises were heard coming from the plaintiff's room. On investigating, a nurse saw the plaintiff 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 the plaintiff, Rosemary Abbott, noted that the plaintiff had "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 visualized".

27 Mrs Howard gave evidence that several weeks after she visited the plaintiff in the Royal Hobart Hospital he was moved to the Launceston General Hospital. When she first saw him there, she observed that his legs were bruised and he had purple bruises to his scrotum. The evidence did not establish their duration or cause. 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 in the Launceston General Hospital he was unconscious. He was kept heavily sedated. Mrs Howard visited him at the Launceston General Hospital on all except two of the days he was a patient. She gave evidence of physical disabilities suffered by the plaintiff, of a change of his personality and affects to his emotions, memory and appetite. Even without the assistance of medical evidence her description of the plaintiff suggests that he had suffered brain damage.

28 Dr Andrew Maclaine-Cross is a consultant physician in general medicine, with a special interest in geriatrics and rehabilitation. Since 1978 he has been in charge of the inpatient rehabilitation unit at the Launceston General Hospital. Most of the people with severe head injuries in north-eastern Tasmania since 1978 have come to the unit under his care. After they finished with neuro-surgery he had a major involvement in the acute and post-acute rehabilitation phase of their care. According to him, the plaintiff was admitted to the Launceston General Hospital on 1 January 1985 and was discharged on 14 March 1985. For much of that time he was in the surgical ward where Dr Maclaine-Cross saw him on several occasions. He came to be primarily under the doctor's care on 6 March 1985, when he was transferred to the doctor's ward. The diagnosis of the plaintiff's condition was of a severe frontal lobe syndrome. I have no reason to doubt the correctness of the diagnosis. It was supported by Dr Ratcliff, a psychiatrist, and there was no evidence to the contrary.

29 Dr Maclaine-Cross explained that the frontal lobe of the brain is damaged most commonly in traffic accidents, which account for between 50 and 60 per cent of such cases. The next most common cause is falls, such as from building sites or falls by jockeys from horses. Other common causes are being hit by a falling object. Forest workers receive such injuries. A group of causes which accounts for about 10 per cent includes injuries suffered in the course of sporting activities such as cycling, motor cycling, riding water vehicles and snowmobiles, playing hockey and football and horse-riding. About 20 per cent of cases are due to violence, including direct physical assaults to the head in the course of a violent confrontation, such as with assaults and firearm injuries. The usual mechanism that causes the brain damage is a violent deceleration of the skull. When the skull comes to a halt the brain keeps moving and is damaged by impact. There is no need for me to detail all of the evidence given by Dr Maclaine-Cross about such matters, for there was no conflicting medical evidence in this case.

30 A CT scan enabled it to be said that there was no evidence that there was any bleeding into the brain, which lead to a conclusion that a direct trauma to the brain was the cause of the plaintiff's injuries and his consequent frontal lobe syndrome. This latter condition was explained by Dr Maclaine-Cross as a disorder that occurs in people who have suffered injury to the frontal lobe, whereby they have changes in cognition, personality and behaviour that have far-reaching consequences on their ability to perform normally in their ordinary life.

31 Acknowledging that it is well-recognised that head injuries can occur from boxing, Dr Maclaine-Cross researched that subject, seeking information about it. The most important and perhaps most recent authoritative document he could find was a report of the National Health and Medical Research Council to a public health committee in 1993 entitled Boxing Injuries. It revealed that so-called chronic encephalopathy due to boxing occurs in between 6 to 15 per cent of long-term professional boxers and it involves a progressive deterioration of cognitive function and movement, that is to say it is a long-term consequence of many fights and much trauma. There was, however, no mention in the report of boxers suffering severe brain damage to the frontal lobe from a single blow or knockout. On the rare occasions when boxers die following a particularly severe punch in the course of a bout, Dr Maclaine-Cross said that the injuries are caused partly by the punch and also by the fact that the person comes down very heavily on the back of his head suffering an occipital lobe injury, and it is mainly forces tearing blood vessels causing rapid bleeding and pressure to build up in the brain which causes death, unless immediate neuro-surgery takes place. There was no evidence of such bleeding in the plaintiff's case. In the course of his research, Dr Maclaine-Cross found no instance of a severe frontal lobe syndrome being caused by a "king-hit".

32 In the course of over 20 years experience at the Launceston General Hospital the plaintiff was the only patient for rehabilitation treatment who was believed by Dr Maclaine-Cross to have suffered from a frontal lobe syndrome caused as a consequence of something in the nature of a fight or brawl. Over that period of time an average of about 10 persons were treated each week for facial injuries as a consequence of a fight or brawl at the Accident Emergency Department of the hospital and none of them had presented as suffering from severe frontal lobe syndrome.

33 It was the opinion of Dr Maclaine-Cross that it is "very, very unlikely" that the severe frontal lobe injury suffered by the plaintiff was caused by three or four punches to the left side of the jaw and face with less than maximum force.

34 Mrs Josephine Howard gave evidence that when she visited the plaintiff in the Royal Hobart Hospital about a week after his injury, he was almost unrecognisable and his head and forehead were swollen to twice their normal size. Dr Maclaine-Cross was asked whether having a grossly distorted upper forehead area, with gross swelling and bruising, was consistent with having been punched to the jaw on the side of the face. Dr Maclaine-Cross' response was that if someone is punched to the jaw on the side of the face, it could be expected that most of the bruising and soft tissue injuries would be in the lower part of the face. Massive swelling or bruising which extended right across the forehead would be unlikely, but Dr Maclaine-Cross pointed out that he had not seen the plaintiff at that point of his hospitalisation. He thought it "much more likely" that such swelling and bruising was caused by being hit over the head with a spade or blunt object than with being punched three or four times. He also thought it much more likely that being hit over the head with a spade or blunt object would cause a severe frontal lobe syndrome than the punches.

35 He accepted that although over the years experience showed him that frontal lobe syndrome was generally caused by high speed car accidents, every now and again he came across a person who had suffered it from a low speed car accident. He confirmed that every now and again a person can suffer a head injury to an extent which would not normally be expected having regard to the relatively low level of force involved in the case in point. Nevertheless, he thought that it was very unlikely that the plaintiff suffered his frontal lobe syndrome from his head hitting the floor, unless he fell from a full height onto a very hard floor or object, such as a concrete floor.

36 In cross-examination, Dr Maclaine-Cross accepted that it was possible that the plaintiff's frontal lobe injury was caused by a punch or punches to the head or by falling with the plaintiff's head hitting the floor, but remarked on such a consequence as "pretty unusual".

37 Dr Ratcliff's evidence generally supported Dr Maclaine-Cross. He agreed with the diagnosis of a frontal lobe syndrome. He estimated that over the last 30 years he had seen several hundred patients suffering from frontal lobe syndrome, the majority of which were caused by motor vehicle accidents and none of which were caused as a result of an assault, except for the plaintiff. Dr Ratcliff thought that if the plaintiff was hit by three or four punches to the left side of the jaw and face, with less than maximum force, causing him to buckle at the knees and fall backwards onto a carpet in front of a dishwasher, it would have been highly unlikely to have caused the frontal lobe syndrome. Dr Ratcliff said that it could occur fortuitously, but he would have expected there to have been evidence of accidental haemorrhage which would have been clearly demonstrable on a CT scan, which was not the case here. He would not expect blows to the jaw or nose area to give rise to a frontal lobe injury. For such an injury he would expect there to be either a direct blow to the frontal lobe area or a very severe blow to the occipital area producing a contracoup injury to the frontal lobe. Dr Maclaine-Cross also gave evidence with regard to contracoup injuries. Dr Ratcliff did not think there would have been sufficient force in falling to the floor to give rise to a frontal lobe syndrome in the plaintiff. He too thought that the injury was more consistent with being hit to the frontal lobe area with some blunt instrument.

38 There was no evidence to suggest that a person, other than the first defendant, administered the force to the plaintiff which caused his injuries, and that the first defendant was a joint tortfeasor because in some way he aided or abetted that person to do so. The plaintiff bore the onus of proving that the first defendant applied force to him and that such force caused his injuries for which he seeks damages. The first defendant admitted applying force to the plaintiff by striking him with three or four blows but it was his case that he did so in lawful self-defence. The onus of proving that he so acted in self-defence rested upon him. Pearce v Hallett [1969] SASR 423. He needed to prove that he or his daughter were in imminent danger from the plaintiff, that he had an honest and reasonably held belief that he needed to act in the way he did to defend himself or his daughter and that the force he used was not out of proportion to the danger he was seeking to avoid.

39 In so far as the plaintiff might rely on the evidence of the first defendant, supported to the extent it was by the evidence of his wife and the second defendant, I am satisfied that upon the basis of that evidence the first defendant established that when he administered the blows admitted by him he was acting in lawful self-defence and the violence he used was lawfully justified. I did not understand the plaintiff's counsel to seek to persuade me otherwise.

40 In his closing submissions, counsel for the plaintiff conceded that the plaintiff was not able to contradict the incident and what led to it, as described by the defendants' witnesses. On the assumption that I found the facts surrounding the incident essentially in conformity with their evidence, he submitted that I should find that more violence was administered to the plaintiff than the defendants' versions of the facts admitted. Counsel said that the blows admitted by the first defendant to have been delivered by him, may well have been so delivered, but I should find that thereafter some further blow or blows were administered, not by way of self-defence, but in the form of retaliatory and vengeful blows, possibly with the spade referred to in evidence, or with some other hard instrument or object. However, in so far as that may be the plaintiff's case, the onus rested on him, and his counsel accepted it, to prove the acts of violence, beyond those which I might find were justified. See McClelland v Symons [1951] VicLawRp 21; [1951] VLR 157.

41 I am not persuaded by the evidence that the first defendant administered any violence to the plaintiff other than that admitted by him. The medical evidence, of course, deserves to be given considerable weight, and it strongly suggests that the plaintiff'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 first defendant 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 first defendant was responsible for them. There were a number of people at the house that day including him, the second defendant, his wife and Tony Howard. Apart from the fact that the first defendant admitted striking blows which I would find were lawfully justified, there was no evidence establishing that he was responsible for the further blows.

42 It is, of course, possible that the scenario of the events as described by the defendants' 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 first defendant was the one who struck the plaintiff and caused his injuries.

43 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 first defendant who wilfully administered violence to the plaintiff, other than that to which he admits.

44 For these reasons there will be judgment for the first and second defendants against the plaintiff. 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 plaintiff as well as to the first and second defendants. 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 plaintiff and the first and second defendants 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 plaintiff.