Stone v The Owners - Units Plan 1214 and Ors [2014] ACTCA 14 - ACTCA 2014 case summary

Stone v The Owners - Units Plan 1214 and Ors [2014] ACTCA 14 - ACTCA 2014 case summary — Zoe

[117]

69. Professor Duflou considered that all of the appellant's injuries were caused by the application of blunt force. With the exception of the fracture of the right side of the jaw, all injuries were on the left side of the face and underlying skull. Professor Duflou thought that it followed that the major force applied to the appellant's head was on the left side. It was entirely possible that a single impact with that side of the head could have caused all the injuries. Whilst it was possible that a second blow may have caused fracturing to the right side of the mandible, it was also reasonably possible for a solid blow to the left side of the jaw to cause such a fracture. Professor Duflou accepted that the appellant's injuries could have been caused by a fall, but in such a case he would have expected to see injury to the upper limbs as a result of the appellant attempting to break his fall by putting out his hands. Such an injury would be at least in the form of abrasions, and could very likely also be expected to include a range of fractures typical of falling onto outstretched hands. Professor Duflou noted that there were a number of features consistent with the appellant having been assaulted, including the extensive injury to the head caused by the application of force with a blunt object and fracturing of parts of the skull which are typical of those expected in an assault. The lack of injury to other parts of the appellant's body would suggest that he did not have an opportunity to defend himself prior to being knocked unconscious. Professor Duflou also believed that the injuries to the appellant's face could reasonably be the result of impact with one of many broad flat surfaces on a car, including potentially the windscreen, bonnet or side mirror. They could also be the consequence of secondary impact with the ground following impact of any part of the body with a moving motor vehicle. He considered that the appellant may have moved some considerable distance after sustaining his injuries before he collapsed.

[126]

77. In cross examination Dr Collins said that he believed that the appellant's body was more likely to be tending towards the horizontal rather than the vertical when he hit the ground. He said that he could envisage "an erect individual" going to that foliage at the top of Wall B, in the foliage, stumbling through that, falling at some stage from the vertical orientation to the horizontal position, and then hitting the ground basically in the horizontal, headfirst position. In such a case he would have both forward and downward momentum. Dr Collins agreed that the appellant had hit the ground "relatively flat". It was suggested to him that in those circumstances you would expect to see bruising "from head to toe". Dr Collins said that that was not an unreasonable assumption except that the appellant had the possible protection of clothing. He agreed that the appellant's head had taken the brunt of the force of the fall. He thought that the angle of the appellant's body at the time of impact with the ground was close to horizontal, with the head slightly lower than the horizontal. It was suggested to him that if the appellant had landed this way you would expect to find bruising to the appellant's chest. Dr Collins said that the appellant's clothing may have protected him, and that it was unknown whether the appellant had sustained any "deep injuries". Dr Collins agreed that the evidence showed the appellant was wearing shorts when found by police, although they were shorts which extended below the appellant's knees. He disagreed with the proposition that if the appellant had fallen as he suggested, some injury to the exposed parts of the appellant's legs would be expected. Dr Collins agreed that if a man fell three metres, basically horizontal, onto the ground and ended up in the position of the appellant, it was more probable that there would be signs of contact with the ground such as bruises, abrasions and potentially fractures, although it was possible he may have been protected by his clothing. It was also possible that the appellant had not been properly examined for injuries at hospital. Indeed, he said that the absence of a record of any such injuries in the hospital record made him doubt the sufficiency of the medical examination of the appellant.

[129]

80. The primary judge was confronted by two experts who held differing views concerning the probable cause of the appellant's injuries. Both experts accepted a fall from Wall B was a possible cause of those injuries. Professor Duflou considered it improbable that the appellant's injuries were caused by such a fall, whereas Dr Collins thought it the most likely scenario. The primary judge was alive to the circumstantial evidence supporting the fall scenario: the position the appellant was found in, its proximity to the retaining walls and to the small break in the vegetation, the nature of the injuries (blunt force trauma) and the findings and conclusions of investigating police. Nevertheless, there was also evidence suggesting that the appellant's injuries were not caused by a fall. The injuries sustained suggested a peculiar mechanism of any fall; that is, to have sustained the precise injuries, and no others, the appellant had to land head first on the driveway, without moving his hands to break his fall and with his hands beside his body (the position they were found in). Because of the lateral distance from the top of Wall B to the position where the appellant landed he must have left the top of Wall B with some momentum. Dr Collins accepted that to be the case. The fact that there were no injuries, including abrasions, to other parts of the appellant's body was problematic, particularly bearing in mind the fact that his legs were at least partially bare as he was wearing shorts. In order to explain what would otherwise seem improbable (the absence of injuries), Dr Collins was forced to speculate about the appellant's clothing possibly protecting him and the thoroughness of the medical examination of the appellant at hospital. The primary judge clearly did not accept the initial opinion of Dr Collins that the appellant had injuries to his hands when located by police. With respect, we agree with her Honour's finding. The evidence of the police who located the appellant and the hospital medical records all support that finding.

Stone v The Owners - Units Plan 1214 and Ors [2014] ACTCA 14

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Judgment (141 paragraphs)

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Cases Cited (4)