Van Der Poel v Hall and Ors

CATCHWORDS: Intentional Tort - common purpose to commit crime - standard of proof - drawing of inferences - scope of purpose - self defence

CASES CITED: Jones v Dunkel (1959) 101 CLR 298; Briginshaw v Briginshaw [1938] 60 CLR 336; Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1

Edward Van Der Poel (Plaintiff in File Number: 316/07) PARTIES: Justin Van Der Poel (Plaintiff in File Number 317/07) David Hall (First Defendant in both Matters) Jarrod Hall (Second Defendant in both Matters)

COUNSEL: Mr C. A. W. Hart (for Plaintiffs in both Matters) Mr E. Conditsis (for First and Second Defendants in both Matters)

SOLICITORS: Bale Boshev Lawyers (For Plaintiffs in both Matters) Conditsis & Associates Lawyers (for First and Second Defendants in both Matters)

1 In the early hours of Sunday, 19 September 2004 Mitchell Hall, the son of David Hall, the first defendant, and brother of Jarrod Hall, the second defendant, came home injured after a Saturday night out. The defendants were told that those injuries were inflicted by brothers Matthew Finigan and Mark Finigan.

2 At about 1.30 pm on 19 September 2004, Mr Hall Jnr and Mr Hall Snr arrived at the Finigan home. Mr Hall Jnr went in his car with friends, Geoffrey Barnett and Dane van Emden. Mr Hall Snr drove his own car. Matthew Finigan was not at home. Mark Finigan and his father, also Mark Finigan, were at the property.

3 Mr Finigan Snr and Mr Finigan Jnr became involved in a brawl with Mr Hall Jnr that spilled into their street. Mr Hall Snr subsequently became involved in this part of the events of that day.

4 The plaintiff in proceedings 316/07, Mr Van der Poel Snr, was lunching on the verandah of his home with his son, Mr Van der Poel Jnr, the plaintiff in proceedings 317/07. Mr Van der Poel Snr's property was next to that of Mr Finigan Snr. They heard a noise coming from Mr Finigan Snr's property and ran towards it.

5 They became involved in the dispute. They claimed they were assaulted by Mr Hall Snr, Mr Hall Jnr and Mr Barnett and suffered injury. They claimed damages for the alleged injuries as well as aggravated and exemplary damages.

6 Mr Barnett was named as a third defendant in the proceedings but was not validly served. The proceedings were pursued against Mr Hall Snr and Mr Hall Jnr only.

7 As was not unusual in proceedings of this nature, the evidence of the parties and other witnesses conflicted considerably. It was not disputed that there was physical interaction between Mr Hall Snr, Mr Hall Jnr, Mr Finigan Jnr, Mr Finigan Snr, Mr Van der Poel Snr, Mr Van der Poel Jnr and Mr Barnett. Further, Mr Barnett admitted that he assaulted Mr Van der Poel Snr with a cricket bat. Mr Van der Poel Jnr claimed that he was similarly assaulted by Mr Barnett.

8 I had no doubt that none of the parties or their witnesses was fully frank with the court and it was therefore necessary to scrutinise the evidence in detail.

9 The issues involved in determining liability were: 1 Whether Mr Hall Snr and Mr Hall Jnr were jointly liable for Mr Barnett's conduct because they attended upon the Finigan property in pursuit of a common purpose to assault or intimidate the Finigan brothers by way of revenge for the assault they believed had been directed towards Mitchell Hall. 2 If not, whether their conduct involved individual intentional assaults against Mr Van der Poel Snr or Mr Van der Poel Jnr.

10 The issues involved in assessing damages were: 1 The nature of any damage or loss suffered by Mr Van der Poel Snr for which the defendants should be held responsible and whether aggravated or exemplary damages should be awarded. 2 The nature of any damage or loss suffered by Mr Van der Poel Jnr for which the defendants should be held responsible and whether aggravated or exemplary damages should be awarded.

11 It was agreed between the parties that the plaintiffs' pleadings raised the issue of whether the common purpose of the defendants, Mr Barnett and Mr van Emden in attending at the Finigan property was to assault or intimidate the Finigan brothers and whether the assault on the plaintiffs was committed in the course of the execution of that common purpose.

12 If there was a common purpose of this nature, it was necessarily agreed upon at the property of Mr Hall Snr before the defendants left to travel to the Finigan property.

13 The injury to Mitchell: Mr Hall Snr said he checked on Mitchell at about 9.30 am on 19 September 2004. He initially said he did this because Mitchell appeared to be heavily intoxicated when he was brought home by friends in the early hours of the morning. He subsequently said he checked on Mitchell as a matter of course.

14 He discovered that his son's face was bloodied, swollen, bruised and cut. This indicated to him that his son had been fairly violently beaten around the face, black and blue Transcript D4.10.12. There was no evidence that Mr Hall Snr asked Mitchell what happened to cause these injuries at any time before he left to drive to the Finigan property.

15 Mr Hall Snr did not arrange medical attention for Mitchell. He did not contact the police. By about 1 pm when Mr Hall Jnr drove away, he was still wondering if Mitchell needed to go to hospital or have some other medical check.

16 Mr Hall Jnr went to see Mitchell in his room when he returned home from a camping trip. The time of his return was not in evidence but Mr Hall Snr said that he was at home when he came downstairs after checking on Mitchell at 9.30 am. He described the condition of his brother's face as bruised and grazed with swollen eyes. He said he tried to ask him what happened but obtained no answer either because Mitchell was unconscious or was unable to speak properly.

17 Mr Hall Jnr did not arrange medical attention for Mitchell. He did not contact the police.

18 The opportunity for discussion: After seeing what happened to Mitchell at 9.30 am, Mr Hall Snr went downstairs. He told Mr Hall Jnr of Mitchell's injuries and asked him if he knew how they were inflicted. He did not recall the answer.

19 Within one hour of discovering the injury to Mitchell, Mr Hall Snr rang three of Mitchell's friends, one of whom was Mr Barnett. None of them could tell him what happened to Mitchell.

20 Mr Hall Jnr rang some of Mitchell's friends who told him that Mitchell was assaulted by Mr Finigan Jnr and his brother Matthew. In subsequent evidence, Mr Hall Jnr said that he did not know the source of this information.

21 Mr Hall Snr did not know what Mr Hall Jnr was doing during the morning. He explained that he was a time poor person, that he had many things to do around the house on Sunday mornings and that he was particularly busy on the morning of 19 September 2004.

22 He did not remember if Mr Hall Jnr told him what happened to Mitchell but he remembered that the Finigan's names were mentioned. In later evidence Mr Hall Snr said that he was able to tell Mr Finigan Snr: Your sons bashed my son last night because this was something that Mr Hall Jnr told him. 23 Mr Hall Jnr did not remember any conversation with Mr Hall Snr that morning. Mr Hall Jnr did not remember the time at which he came home from his camping trip. He did not remember if he spoke to Mr Barnett before he came home.

24 Mr Barnett denied that Mr Hall Snr telephoned him before 10.30 am. He said he was driving to the gymnasium when Mr Hall Snr telephoned him. Out of concern for Mitchell, he drove directly to the Hall residence. He said he was at the house for only about two to three minutes, he did not enter the house and did not see or speak with Mitchell. He did not see or speak to Mr Hall Snr. Mr Hall Snr denied having seen him in the house.

25 Mr Barnett said it took five to ten minutes to drive to the Finigan property and that they arrived at about 1.30 pm. This meant that, if his evidence was accepted, he arrived at the Hall residence shortly after 1 pm.

26 Apparently, by the time he arrived, Mr Hall Jnr believed that the Finigans assaulted Mitchell. Mr Barnett suggested to Mr Hall Jnr that they go to the Finigan home, ask what happened and hear their story.

27 Mr van Emden arrived at the Hall residence with Mr Hall Jnr. He was with Mr Hall Jnr on the camping trip and travelled home with him in his car. Mr Hall Snr denied having seen Mr van Emden at the house. Mr Hall Jnr said that Mr van Emden did not enter the house.

28 According to Mr van Emden he did go into the Hall residence. He said when he and Mr Hall Jnr walked into the home Mr Hall Snr told Mr Hall Jnr that Mitchell had been in a fight and that Mr Hall Jnr should stay out of it and leave it alone. Mr Hall Snr agreed that he said these words to Mr Hall Jnr.

29 Mr van Emden said that Mr Barnett arrived shortly before they left to go to the Finigans and that the decision to go there was made when he, Mr Hall Jnr and Mr Barnett were outside the house. He denied that they told Mr Hall Snr what they were doing.

30 Mr Hall Snr said that before leaving Mr Hall Jnr said he was going to talk to the Finigans. It was at this point that he told him to stay out of it.

31 The claimed purpose in going to the Finigan property: Mr Hall Snr said he then saw Mr Hall Jnr get into his car and drive off and in the back of his mind he thought Mr Hall Jnr was going to the Finigans.

32 He did not know if anyone else was in the car, notwithstanding his evidence that he had a clear view of Mr Hall Jnr entering the car and Mr van Emden's evidence that he was in the house at the time Mr Hall Snr told Mr Hall Jnr to stay out of things.

33 Mr Hall Snr said his reason for going after Mr Hall Jnr was: …in the back of my mind was the thought that he was going to go around and have a chat with the Finigans and I felt compelled, after seeing my son, attack, that there was going to be a need to prevent any further attack, if it ever got to that point and I raced upstairs to find out where the Finigans might live and managed to get Mitch to indicate approximately where they lived. Transcript D4.14.23

34 Mr Hall Jnr said that he went to the Finigan's to talk to both of the brothers over what happened the night before. He wanted to learn their side of the story, whether they assaulted Mitchell and to make sure there would be no ongoing violence directed towards Mitchell or the Hall family. He did not ring the Finigans in advance because he thought it was the right thing to speak to them man to man Transcript D5.10.10.

35 Mr Hall Jnr said he took Mr Barnett and Mr van Emden with him because he needed directions to the Finigan address, he did not know the Finigan brothers and they did and: …so I needed them there as a kind of mediator for me to talk to them, and also because of their reputation of being in the gang and the violence that came with it. I felt I might need someone there to save me if I got into trouble. Transcript D4.98.47

36 He denied any conversation with Mr Barnett before they left about where he was to go because Mr Barnett came with him. He denied any conversation with Mr Barnett or Mr van Emden in the car on the journey to the Finigan property.

37 Contrary to this evidence, Mr Barnett stated that, on being told by Mr Hall Jnr that Mitchell was bashed up by the Finigans, he told him he knew Mr Finigan Jnr, that he was a friend and that they should go over to the Finigan home and ask what happened. He denied remembering any discussion in the car.

38 Mr van Emden went with Mr Hall Jnr because he knew Mr Finigan Jnr and knew where he lived.

39 Mr van Emden could not recall any conversation in the car on the way to the Finigan property. He agreed that on arrival Mr Hall Jnr parked about 20 metres south of the entrance to the Finigan property. Mr van Emden walked half way to the entrance and stopped. His reason for not going further was: I didn't want to confront, I didn't want to be involved in walking up to the front of the house because as I mentioned earlier, I was friends with both Finigans and the Halls and I didn't want it to be construed that - I didn't want them to feel uncomfortable with a few people coming to the front of their house so I just wanted to stay back. Transcript D5.109.33

40 Although he used the word confront, Mr van Emden denied that the purpose was to engage in a confrontation with the Finigans. He agreed that it was his conscience that caused him to stay back but said this related to his split loyalties rather than because he knew that what was going to happen would not be good.

41 The timing of Mr Hall Snr's arrival: According to Mr Barnett the drive to the Finigan property took five to ten minutes. On arriving at the property Mr Hall Jnr parked his car about 20 metres south of the entrance to the Finigan property.

42 Without further discussion, the three occupants left the car and walked towards the entrance to the Finigan property. Mr van Emden stopped half way and did not proceed further. Mr Hall Jnr walked with Mr Barnett up the steps to the front door. The time involved in walking from the car to the front door was estimated by Mr Hall Jnr to have taken about 30 seconds. He estimated that Mr Hall Snr arrived at the property about 30 seconds after he and Mr Barnett reached the front door. It would appear that at the most Mr Hall Snr arrived at the Finigan property about one minute after Mr Hall Jnr and his companions.

43 Mr Hall Snr said that after Mr Hall Jnr left his home, he needed to find out where the Finigans lived. This information was provided by Mitchell, who, on the evidence, was so badly injured that he was either unconscious or having difficulty speaking. Mr Hall Snr said that he left five minutes after Mr Hall Jnr.

44 The evidence of Mr Barnett and Mr van Emden indicated that Mr Hall Snr might have arrived less than one minute later.

45 According to Mr van Emden, he saw Mr Hall Snr's car 100 metres away as it came around the corner just after he stopped walking. By this stage he walked only 10 metres from Mr Hall Jnr's car. Mr van Emden was unsure if Mr Hall Snr left his house at or around the same time as Mr Hall Jnr.

46 Mr Barnett initially agreed that he saw Mr Hall Snr parked across the road by the time that he and Mr Hall Jnr reached the front door of the Finigan property. He subsequently retracted this evidence and said he first saw Mr Hall Snr when he intervened between Mr Hall Jnr and Mr Finigan Snr.

47 The incident with Mr Finigan Snr: It was not disputed that Mr Finigan Snr opened the door to his house and called Mr Finigan Jnr to the door. Mr Finigan Jnr walked to the bottom of the stairs with Mr Hall Jnr and Mr Barnett and started to talk to Mr Hall Jnr. Almost immediately Mr Finigan Jnr and Mr Hall Jnr became involved in a scuffle, each accusing the other of throwing the first punch. Mr Finigan Snr then ran down the stairs and tackled Mr Hall Jnr.

48 Mr Hall Snr said he was switching off his car's engine when he saw the tackle. He later said he left his car when he saw Mr Hall Jnr and Mr Finigan Jnr fighting before Mr Finigan Snr came down the stairs. He left his car because at that point he decided he should get involved and settle things down. He saw Mr Finigan Snr tackle Mr Hall Jnr by forcing his shoulder into the upper half of his body. Mr Finigan Snr then slid down to the lower half of Mr Hall Jnr's body. In the course of the tackle Mr Finigan Snr pushed Mr Hall Jnr five to eight metres towards the front of the property.

49 Mr Hall Snr described the way in which he intervened. He did this by standing behind Mr Finigan Snr and encircling him under his arms and dragging him backwards five to ten metres towards the road in front of the Finigan property. He was able to do this because, although at the commencement of the tackle, Mr Finigan Snr was facing away from his property, there was some swinging motion as the tackle proceeded so that Mr Finigan Snr subsequently faced the property. He denied that at the time he took hold of Mr Finigan Snr he was on the ground. He released Mr Finigan Snr, who stood to his feet. They then started to have words. He denied that Mr Hall Jnr fell to the ground.

50 Mr Hall Jnr remembered things differently. When Mr Finigan Snr tackled him, he was forced backwards and onto the road in front of the Finigan property. Mr Finigan Snr slid down his body falling to the ground and onto his stomach still holding onto Mr Hall Jnr's ankles with his arms. After he struggled with Mr Finigan Snr for some time to get him away from his ankles, he first noticed Mr Hall Snr who grabbed Mr Finigan Snr, lifted him up and gave him a light shove. At this point Mr Hall Snr and Mr Finigan Snr started to have words.

51 Mr Barnett remembered things differently. He saw Mr Finigan Snr take Mr Hall Jnr by the shirt and start to drag him towards the front lawn. He was asked in examination in chief if Mr Finigan Snr had in fact pushed Mr Hall Jnr. He rejected this suggestion and confirmed that he dragged him.

52 Mr Barnett did not remember if Mr Hall Jnr or Mr Finigan Snr fell to the ground. He did not remember if Mr Hall Snr or Mr Hall Jnr punched and kicked Mr Finigan Snr while he was on the ground. He remembered that there was fight and that it was a reasonably big fight Transcript D5.87.48.

53 Mr van Emden remembered things differently. He remembered that Mr Finigan Snr ran down the stairs, tackled Mr Hall Jnr by grabbing him by the shirt after which, both on the ground, they rolled out onto the nature strip. Mr Hall Snr then arrived and separated them by pulling Mr Finigan Snr from the top of Mr Hall Jnr: It was, yeah, it was basically grabbing Mr Finigan by the shirt and pulling him off the top of Jarrod, separating the pair and stopping the fight that was happening between them. Transcript D5.112.32

55 The incident involving the Van der Poels: There was much conflict in the evidence about the incident involving the Van der Poels. None of Mr Hall Snr, Mr Hall Jnr or Mr van Emden remembered having seen Mr Barnett strike Mr Van der Poel Snr or Mr Van der Poel Jnr with the cricket bat. Mr Barnett conceded that he struck Mr Van der Poel Snr with the cricket bat. He did not remember if he also struck Mr Van der Poel Jnr with the bat but conceded that he held him in a headlock for some period of time.

56 The cricket bat was introduced into events after Mr Van der Poel Snr struck Mr Barnett with a piece of timber.

57 Mr Van der Poel Snr described the timber as a tiler's batten about one metre long and 1 inch by 1.1/2 inches in dimension. He said the batten was made of very light wood. He said he struck Mr Barnett across the chest with the batten.

58 Mr Hall Snr described the timber as dark brown in colour and 4 inches by 2 inches in dimension. Mr Hall Jnr said it appeared to be a post, slightly longer than one metre and 5 or 6 inches square. Mr van Emden said it was 4 inches by two inches and about one metre long.

59 According to Mr Barnett it was a thick and chunky, like a fence post. He described it as follows: …it was a big lump of wood. It was a big dark piece of wood and it had nails at the end of it. Transcript D5.60.1

60 Mr Barnett said that when Mr Van der Poel Snr struck him with this big lump of wood, he saw stars and fell to the ground. He was the only witness to suggest that the blow delivered by Mr Van der Poel Snr was of such force that it caused him to fall to the ground.

61 The blow put such fear into him that he went to Mr Hall Jnr's car and happened to find the cricket bat. He returned with it because he wanted to use it as a weapon to hit the person who hit him.

62 By the time he returned Mr Hall Snr was facing away from him and towards Mr Van der Poel Snr, struggling with him and trying to disarm him.

63 Mr Hall Snr said he saw Mr Barnett rummaging in the car and concluded that he was looking for something with which to retaliate for the blow he received from Mr Van der Poel Snr. He was immediately concerned for the welfare of Mr Van der Poel Snr, noting that he was an elderly person Transcript D4.26.25. When he saw Mr Barnett approaching towards Mr Van der Poel Snr holding something that he was unable to identify, Mr Hall Snr listed his priorities as follows: My immediate concern was to get in between the two, use my right hand to try and get the baton [sic] or the, sorry, the lump of wood, off Mr Van Der Poel Senior and keep my left arm raised to keep Jeff [sic] Barnett away from approaching Mr Van Der Poel Senior. … My back was facing to the Finigan's property and Jeff Barnett was on my left and Van Der Poel Senior was on my right. … My first priority was to try and disarm Van Der Poel Senior from his lump of wood and I tried to grapple it with my right arm. Transcript D4.27.21

64 Mr Hall Snr denied that at any stage during this process he touched Mr Van der Poel Snr or that he was attempting to restrain him.

65 Mr Hall Jnr agreed that he saw that Mr Barnett was holding a cricket bat as he returned from the car. He saw Mr Hall Snr stand in front of Mr Barnett to stop him from approaching Mr Van der Poel Snr. He heard Mr Hall Snr tell Mr Barnett to stop when he was standing between Mr Van der Poel Snr and Mr Barnett. Both Mr Hall Snr and Mr Hall Jnr said that at this point Mr Van der Poel Snr swung at Mr Hall Snr with the lump of timber. This was not put to Mr Van der Poel Snr at any stage in cross examination. By this stage Mr Hall Snr was facing Mr Van der Poel Snr. He saw Mr Hall Snr reach up and take hold of the post when it was above the heads of both men. Mr Hall Snr and Mr Van der Poel Snr swayed back and forth as Mr Hall Snr attempted to take the timber from Mr Van der Poel Snr, they wrestled and fell to the ground and struggled on the ground for a short period. After some remonstrations from Mr Van der Poel Jnr, the scuffle ended and both men stood up. As far as Mr Hall Jnr was concerned, the incident then ended and he, Mr Hall Snr, Mr Barnett and Mr van Emden left in the vehicles in which they arrived. He denied that he saw anyone struck with a cricket bat.

66 Mr van Emden's observations were similar to those of Mr Hall Jnr. He saw Mr Hall Snr stand between Mr Van der Poel Snr and Mr Barnett, holding up both hands and telling Mr Barnett to stop. When Mr Barnett failed to stop, Mr Hall Snr turned to Mr Van der Poel Snr to take the lump of wood from him. They then fell to the ground, wrestling for the wood. He remembered more than Mr Hall Jnr in that he then saw Mr Finigan Snr become involved as well as Mr Hall Jnr. As the other members of their party were returning to their cars, Mr Barnett remained at the end of the driveway still yelling, yelling a little bit Transcript D5.118.35. Mr Hall Jnr drove the car to where Mr Barnett was standing, he jumped in and they left.

67 A great deal was said by the defendants concerning the credit of the plaintiffs and the extent to which I should accept their evidence. Indeed, the major part of the defendants' 92 pages of submissions addressed this topic. It will be noted that I found it unnecessary to consider any of the evidence relied upon by the plaintiffs in deciding the issue of common purpose except to note that Mr Van der Poel Snr agreed that he struck Mr Barnett with a piece of timber and that his description of the timber indicated that it was of smaller dimension than suggested by the defendants and their witnesses.

68 It was unnecessary therefore to deal with the issue of the plaintiffs' credit. Similarly, it was not necessary to deal with the defendants' submissions based on the principles of Jones v Dunkel Jones v Dunkel (1959) 101 CLR 298. Had I done so, I would have placed little weight on them. Nor was it necessary to consider references made in submissions to discrepancies between the opening statements of the plaintiffs' counsel and the evidence in support of their claims. I noted that the openings of both the plaintiffs and the defendants did not match the evidence. In my experience, this is an all too common occurrence and my decisions are only ever made on the pleadings and the evidence before the court and never on the basis of counsel's opening comments.

69 Mr Barnett entered pleas of guilty to the charges of assault on Mr Van der Poel Snr and Mr Van der Poel Jnr. He drove to the Hall residence on the morning of 19 September 2004 when he was not licensed to do so. I accept that he demonstrated scant regard for the law and that the reliability of his evidence was accordingly undermined.

70 Mr Hall Snr, Mr Hall Jnr and Mr van Emden were, however, of apparent good character. It was submitted on behalf of the defendants that I should have regard to what was said to be the Briginshaw test in deciding, in a civil action, cases that involve conduct that amounts to a criminal offence. In these submissions, I apprehended that the defendants were urging me to adopt some undefined intermediate standard of proof falling between the balance of probabilities and that which established an issue beyond reasonable doubt. I doubt that this was a proposition established in Briginshaw v Briginshaw Briginshaw v Briginshaw [1938] 60 CLR 336. In this matter I was dealing with a civil action to which the civil standard of proof applied. I accepted that I should not make a finding of a common purpose to engage in criminal activity against persons of apparent good character without first considering the evidence with great care.

71 Mr Hall Snr had assets. It was important therefore that the plaintiffs succeeded in their claimed against him. Similarly, it was important to the defendants that Mr Hall Snr and his assets be protected from any verdict or judgment.

72 There were a number of the aspects of the evidence of what occurred at the Hall residence on the morning of 19 September 2004 that bore the hallmarks of a concerted effort at protecting Mr Hall Snr from any suggestion that he was implicated in a common purpose involving the commission of a criminal act.

73 The question left open was whether this evidence was also designed to present an untrue picture of events so as to avoid a finding adverse to the defendants on the issue of common purpose.

74 It was argued that, since I was asked to infer that the defendants engaged in a common purpose with criminal intent, I should adopt the approach taken by the criminal law that an inference unfavourable to the defendants could only be drawn if there was no other inference available so that it remained the only rational inference.

75 I state again that this was a civil action. There is much authority on the drawing of inferences in civil cases, none of which indicates that a civil court is limited to a situation where only one rational inference is available. In one of the leading cases, the High Court said the following: … you need only circumstances raising a more probable inference in favour of what is alleged … where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference; they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere conjecture: see per Lord Robson, Richard Evans & Co Ltd v Astley (1911) AC 674 at p 687 … All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that injury arose from the defendant's negligence. By more probable is meant no more than that upon the balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood. Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1, per Dixon, Williams, Webb, Fullagar and Kitto JJ

76 I proceeded therefore on the basis that before I made findings adverse to the defendants I should be satisfied on the balance of probabilities that the circumstances appearing in the evidence gave rise to a reasonable and definite inference that they went to the Finigan property in pursuit of a common purpose that involved assault or intimidation of the Finigan brothers.

77 In this respect the defendants were not assisted by the considerable number of inconsistencies in the evidence to which I have already referred.

78 The defendants went to such lengths to deny that there was an opportunity for discussion that it was unclear how Mr Hall Snr knew what caused Mitchell's injuries, who was responsible for them and therefore how he was able to shout at Mr Finigan Snr words to the effect that his sons bashed Mitchell.

79 There was inconsistency between Mr Hall Snr's evidence that he rang Mr Barnett between 9.30 am and 10.30 am and that of Mr Barnett that upon receiving a telephone call from Mr Hall Snr he went directly to the Hall residence but arrived only a few minutes before leaving to drive to the Finigan property at about 1.30 pm. Further, Mr Barnett's evidence that he did not enter the house at all was inconsistent with his statement that his express purpose in going to the Hall residence was to visit Mitchell.

80 The proposition that Mr van Emden was either never in the house or somehow there only fleetingly was inconsistent with the evidence that he came to the Hall residence with Mr Hall Jnr who was spoken to by Mr Hall Snr at about 9.30 am. I did not accept that Mr van Emden waited outside the Hall residence from 9.30 am until some time around 1 pm when he left with Mr Hall Jnr and Mr Barnett to go to the Finigans.

81 The evidence of how and when Mr Hall Snr arrived at the Finigan property was improbable to the point of being not credible given that: 1 He was able to obtain an address and directions from Mitchell who, if Mr Hall Jnr is to be accepted, was unable to speak because of his injuries and may even have been unconscious. 2 He left five minutes after Mr Hall Jnr. 3 He went to an address with which he was not familiar and he arrived at most only one minute later.

82 Mr Hall Jnr offered in evidence that he was aware of the reputation of the Finigan brothers as gang members who engaged in violence. One of the reasons he gave for taking Mr Barnett and Mr van Emden with him was that they could save him if he encountered trouble. Against this background it was improbable that he expected to engage a gentlemanly discussion with the Finigans about the circumstances in which they bashed up Mitchell.

83 Mr van Emden clearly expected some kind of confrontation to occur. I did not accept that he stepped back from the situation only because of his concern about split loyalties.

84 Both Mr Barnett and Mr van Emden remembered that a fight occurred between Mr Hall Jnr and Mr Finigan Snr into which Mr Hall Snr intervened. Mr Barnett failed to remember much of the detail of this fight but he did remember that it was reasonably big. It was clearly more than a matter of Mr Hall Snr's lifting Mr Finigan Snr and dragging him to his feet.

85 The varying descriptions of the piece of timber that Mr Van der Poel Snr used were such that its size increased as the evidence progressed to the point where Mr Barnett described it as a fence post with nails protruding from the end.

86 I did not accept that Mr Barnett came upon the cricket bat by chance. The speed with which he went to the car and returned with it suggested that he was aware that it was there.

87 Mr Hall Snr was able to anticipate that Mr Barnett went to the car to find a weapon to use in retaliation for the blow he received from Mr Van der Poel Snr. He did not follow him to the car to persuade him from that purpose. He did not attempt to disarm Mr Barnett. Rather, he asked the court to accept that he attempted to disarm the elderly person who was at risk from the advancing Mr Barnett.

88 There was no evidence that Mr Hall Jnr or Mr van Emden attempted to stop Mr Barnett's advance towards Mr Van der Poel Snr notwithstanding that they could see that he carried the cricket bat.

89 Mr Hall Snr denied that he physically touched Mr Van der Poel Snr in the course of his attempt at disarming him. This was not so, according to Mr Hall Jnr and Mr van Emden. Both saw Mr Hall Snr and Mr Van der Poel Snr fall to the ground and wrestle for the timber.

90 The result of these inconsistencies and discrepancies in the evidence was that I rejected much of the self serving evidence of the defendants and I found the facts to be as follows: 1 Mr Hall Snr checked on Mitchell at about 9.30 am. 2 Mr Hall Jnr was in the Hall residence at this time and remained there until shortly after 1 pm. 3 Mr Hall Snr rang Mr Barnett between 9.30 am and 10.30 am. 4 Mr Barnett, instead of driving to the gymnasium, went directly to the Hall residence. He was at the Hall residence until shortly after 1 pm. 5 Mr van Emden came to the Hall residence with Mr Hall Jnr and was in the house during the morning. He left with Mr Hall Jnr shortly after 1 pm. 6 Mr Hall Jnr told Mr Hall Snr during the morning that Matthew Finigan and Mark Finigan assaulted Mitchell. 7 There was therefore ample opportunity for discussion before they left to go to the Finigan property. 8 Mr Hall Jnr left to drive to the Finigan property shortly after 1 pm. 9 Mr Hall Snr left to drive to the Finigan property at the same time as Mr Hall Jnr or almost immediately after him. 10 Mr Hall Jnr and Mr Finigan Snr became engaged in a fight in the course of which they both fell to the ground. 11 The fight was substantial and it subsequently involved Mr Hall Snr. 12 After Mr Hall Jnr and Mr Finigan Snr stood to their feet they continued with Mr Hall Snr to shout at each other. 13 Mr Van der Poel Snr struck Mr Barnett with a piece of timber. 14 Mr Barnett knew that there was a cricket bat in the car. 15 Mr Barnett went directly to the car, retrieved the cricket bat and returned with the intention of striking Mr Van der Poel Snr with it. 15 Mr Hall Snr wrestled with Mr Van der Poel Snr in an attempt to disarm him. They fell to the ground and continued to wrestle. 17 Mr Hall Snr made no attempt to disarm Mr Barnett. 18 Mr Hall Jnr made no attempt to disarm Mr Barnett. 19 Mr van Emden made no attempt to disarm Mr Barnett. 20 Mr Barnett struck Mr Van der Poel Snr with the cricket bat while he remained on the ground. 21 Mr Barnett struck Mr Van der Poel Jnr with the cricket bat and held him in a headlock.

91 The defendants did not contact police before attending at the Finigan property, nor did they initiate any contact after they returned to the Hall residence. This failure to deal through the proper channels with the alleged serious assault on Mitchell indicated that they were prepared to take matters into their own hands.

92 The defendants did not telephone Mr Finigan Snr or either of the Finigan brothers before attending at the Finigan property. Contact with them in this way could have fulfilled the dual purpose of finding out what happened to cause Mitchell's injuries and ensuring that no ongoing violence was directed at him or the Hall family. The failure to adopt this approach indicated that the defendants wanted to engage in direct confrontation to achieve their purpose.

93 Mr Hall Jnr was aware of the reputation of the Finigan brothers. The defendants could not reasonably have expected that directly confronting them with an accusation of serious assault on Mitchell would remain non-violent. Mr Hall Jnr volunteered the explanation that he took Mr Barnett and Mr van Emden with him, not only to direct him to the correct address, but to assist him if there was trouble.

94 I find therefore that the common purpose of the defendants, Mr Barnett and Mr van Emden when they went to the Finigan property on 19 September 2004 was to engage in the criminal activity of assault and intimidation of Mark Finigan and Matthew Finigan and in activity that would involve direct physical violence if it became necessary.

95 Interruption in events: It was submitted by the defendants that such violence as did occur between them and Mr Finigan Snr and Mr Finigan Jnr had ceased before the plaintiffs came upon the scene so that the interaction between them and the plaintiffs was outside the contemplation of the defendants and did not form part of any common purpose.

97 It was stated that the defendants arrived and left the scene in a period of not more than four minutes. On the defendants' evidence, even if Mr Finigan Snr was on his feet he was shouting at Mr Hall Snr, demanding to know what was going on and that Mr Hall Snr was shouting back at him. Present with Mr Finigan Snr in the road outside his home were Mr Hall Snr, Mr Hall Jnr and Mr Barnett, all younger, fitter men. The evidence was that the exchange of words was forceful and loud. They were not at that stage conversing like gentlemen.

98 It was apparent therefore that, even disregarding, without deciding whether it was preferred, the evidence of Mr Finigan Snr and the plaintiffs that the physical violence continued, the purpose with which the defendants attended at the Finigan property was not completed and the dispute continued.

99 I find that there was no interruption of consequence in the events.

100 Self defence: The submissions of the defendants on this topic appeared to relate to the question of whether the whole of the violence of this event was the result of the need to defend Mr Hall Jnr from Mr Finigan Jnr on the basis that it was Mr Finigan Jnr who threw the first punch.

101 I failed to understand how an attack on Mr Hall Jnr warranted the violence directed at the plaintiffs who attempted to intervene at a time when Mr Finigan Snr was either under actual attack or in a threatening situation that involved Mr Hall Snr, Mr Hall Jnr and Mr Barnett.

102 I find that there was no evidence to support the claim of self defence in respect of the assaults on Mr Van der Poel Snr or Mr Van der Poel Jnr.

103 The scope of the contemplated purpose: Mr Hall Snr and Mr Hall Jnr argued that, even if they were found to have engaged in a common criminal purpose, Mr Barnett's attack on the plaintiffs was outside the scope of that purpose. This part of the defence was rejected for the reasons that follow.

104 I accepted that there was no evidence upon which I could conclude that the cricket bat was placed in Mr Hall Jnr's car with the intention that it be used as a weapon against the Finigans. I have already found, however, that Mr Barnett was aware that the cricket bat was in the car and that he returned to the car with the intention of taking and using it.

105 The submission that Mr Barnett's actions in using the cricket bat as a weapon was not within the scope of the execution of the common purpose would have more substance if any one of Mr Hall Snr, Mr Hall Jnr or Mr van Emden had attempted to restrain Mr Barnett or divert him from his clear intention to use it against Mr Van der Poel Snr.

106 They did not do this. Rather, Mr Hall Snr tackled Mr Van der Poel Snr to the ground and Mr Hall Jnr became involved when Mr Van der Poel Jnr and Mr Finigan Snr went to the assistance of Mr Van der Poel Snr. Mr van Emden stood by as a passive observer of events.

107 Thus while Mr Hall Snr and Mr Hall Jnr were not themselves involved in that part of the assault committed by Mr Barnett with the cricket bat, they must also be held responsible for what occurred in the course of the execution of a purpose that was common to them and Mr Barnett.

108 There was clear evidence that Mr Hall Snr intentionally assaulted Mr Van der Poel Snr when he attempted to disarm him and then continued to wrestle with him after they fell to the ground.

109 I find that his purpose in this assault was not, as he stated, to protect Mr Van der Poel Snr from Mr Barnett. It was to protect Mr Barnett from the elderly Mr Van der Poel Snr.

110 In assaulting him in this manner Mr Hall Snr exposed Mr Van der Poel Snr to injury from the blows that he delivered. In addition he exposed him to the blows delivered by Mr Barnett with the cricket bat.

111 There was evidence that Mr Hall Jnr intentionally assaulted Mr Van der Poel Jnr after he intervened to protect Mr Van der Poel Snr.

112 In the circumstances I find that Mr Hall Snr and Mr Hall Jnr committed direct intentional assaults upon the plaintiffs.

113 The provisions of the Civil Liability Act 2002 do not apply in the circumstances of an intentional act that is done by a person with intent to cause injury. Civil Liability Act 2002, s 3B(1)(a) The damages in these proceedings must therefore be assessed on common law principles.

114 Mr Van der Poel Snr was 55 years old at the time of the assault. He claimed to have suffered a number of injuries, including fractured ribs, back injury, bruising, shock, anxiety, and distress. He claimed ongoing physical and psychological discomfort and disability as a result of these injuries.

115 Mr Van der Poel Snr claimed general damages, loss of income and damages for voluntary domestic care.

116 Mr Van der Poel Snr said that after the incident he was bruised and in pain in his back, right hip and right thigh. An ambulance was called but he declined hospital treatment and visited his general practitioner the next day. X-rays were arranged and a diagnosis of a fracture of the right tenth rib was made. Upon subsequent review of the X-ray films, Dr Ghabrial said there was also some doubt about the ninth and twelfth ribs. The general practitioner prescribed painkilling medication which Mr Van der Poel Snr could not tolerate and he discontinued them.

117 Mr Van der Poel Snr complained of ongoing discomfort, particularly on the right side of his chest and the right side of his middle back. The medical practitioners whom he consulted agreed that his symptoms were related to the assault and that his symptoms will continue to affect him indefinitely. No diagnosis was offered by Dr Ghabrial. Dr Patrick diagnosed post traumatic subacromial bursitis/impingement at both shoulders and noted continuing significant symptoms. Dr Lee, the plaintiff's general practitioner, diagnosed persistent soft tissue injury following trauma to the right chest wall and resultant rib fracture.

118 Mr Van der Poel Snr stated that counselling was recommended for his ongoing psychological symptoms but he was unable to afford to pay for this treatment. His symptoms were stated to Mr Maxwell, psychologist, in January 2008 to include loss of self confidence, flashbacks and anxiety, nightmares and insomnia leading to fatigue, and depressed mood. Mr Maxwell diagnosed post traumatic stress disorder and major depressive disorder (moderate). He recommended that Mr Van der Poel Snr have treatment to obtain some improvement in his condition.

119 Mr Van der Poel Snr was self employed as a bricklayer at the time of the incident. He claimed that he was unable to work for a period of 18 months after the incident and that for a further 18 months he was able to work in a supervisory capacity only. He said he continued to have difficulty performing his full duties and that he worked at a slower pace. The defendants challenged this part of his claim as an overstatement of the extent of his disability. Dr Lee's opinion was that he was unfit for work for five months and that he was fit only for supervisory work for a further 18 months. Mr Maxwell stated that Mr Van der Poel Snr's psychological injuries rendered him unfit for work for three months following the assault. The period during which he was totally unfit for work was stated by Dr Patrick to be 14 months with ongoing permanent partial incapacity. Dr Ghabrial stated only that Mr Van der Poel Snr was unfit for activity involving lifting over 10 kg or excessive twisting and bending.

120 Income tax returns in evidence indicated that Mr Van der Poel Snr increased his income in 2004, with a substantial reduction in 2005 and some recovery in 2006. Returns for 2007 and 2008 were not provided.

121 The evidence of Mr Van der Poel Snr and his wife, Mrs Judith Van der Poel was that he required personal assistance from his wife that was substantial for a period of two weeks and of a lesser degree for three months. It was also claimed that for a period of 12 to 18 months Mr Van der Poel Snr was unable to attend to the work that he was accustomed to performing in attending to lawn mowing, gardening and house maintenance. Mr Van der Poel Snr estimated that he spent four hours a week on these tasks. They were performed by Mrs Van der Poel or his son who lived nearby. Mrs Van der Poel estimated the time required was six to eight hours per week.

122 Assessment: The defendants were critical of the claim for damages on the basis that it was exaggerated and overstated. The defendants did not seek to have Mr Van der Poel Snr medically examined and therefore the court did not have the benefit of alternative medical opinions. I was satisfied, however, that there was some overstatement of the consequences to Mr Van der Poel Snr of the injuries suffered in the incident, particularly in relation to his claimed income loss. This appeared to have been recognised by the submissions on damages filed on his behalf. I have assessed his damages as follows: 1 General Damages: There was no evidence to support the claimed back injury. There was evidence of continuing discomfort in the area of the rib cage and, in the absence of contrary opinion, I accepted that this was the result of soft tissue damage. I also accepted that Mr Van der Poel Snr suffered a psychological reaction to the incident which was likely to improve with treatment. I assessed his general damages at $40,000. 2 Past Income Loss: The claim for past income loss was limited to two years. I assessed this part of the claim on the assumption that the 2004 tax return provided an indication of Mr Van der Poel Snr's income earning capacity at the time of the incident. I assessed his past income loss at $17,427. 3 Future Income Loss: Mr Van der Poel Snr's evidence was that he was able to return to full duties as a bricklayer but that he now worked at a slower rate. I would expect that as he advanced in years, his capacity to work at the rate of a younger bricklayer would diminish. Allowing some reduction in capacity by reason of his injuries, I moderated his claim. I assessed his future income loss at $15,000. 4 Out of pocket expenses: The figure for the past was agreed. For the future, there was no indication of any need for regular general practitioner review or for medication. I accepted that there was a need for some psychological treatment. I assessed his past out pocket expenses in the agreed sum of $569.95. I assessed his future out pocket expenses at $1,000. 5 Domestic care: The claim was limited to Mr Van der Poel Snr's past needs. I considered that 30 minutes per day for the period of 12 weeks after the incident was sufficient to meet his needs. I considered that, having regard to the medical evidence indicating that Mr Van der Poel Snr was capable of light work, a reasonable allowance for assistance with yard work was two hours per week. I assessed the award for past voluntary care at $4,158. 6 Aggravated damages: I was satisfied that this was a case where an award of aggravated damages was warranted. The damage suffered by Mr Van der Poel Snr was more than the result of negligence on the part of the defendants. They injured him deliberately and, with the use of the cricket bat, cruelly. I assessed aggravated damages at $10,000. 7 Exemplary damages: I was also satisfied that this was a case where an award of exemplary damages was warranted. The defendants took the law into their own hands. They did so in a suburban street on a Sunday afternoon. The circumstances and timing of their assault on Mr Van der Poel Snr could hardly have been more demonstrative of their lack of concern for the plaintiffs, the Finigans and the rights of citizens to enjoy peace and harmony in their homes. The award of exemplary damages is made to mark the court's disapproval of the conduct of the defendants and to deter others from behaving with the same level of disregard for the due process of the law. I assessed exemplary damages at $10,000.

123 Mr Van der Poel Jnr was 33 at the time of the incident and is now 38 years old. He said that received a number of blows in the course of the incident and felt immediate pain in his left shoulder blade and elbow. He claimed injuries to his neck, chest, shoulders and back, bruising and a psychological reaction. He complained of continuing disability and discomfort affecting all of these parts of his body as well as continuing psychological problems.

124 Mr Van der Poel Jnr made no claim for domestic care or income loss, his claim being limited to general damages and future out of pocket expenses.

125 Mr Van der Poel Jnr consulted his general practitioner, Dr Hawkes on 8 October 2004 complaining of pain in his upper thoracic spine. No abnormality was detected on the X-ray of his spine. Physiotherapy was provided, according to Mr Van der Poel Jnr, for a period of three months. No physiotherapy records or report were in evidence. These problems continued when he consulted Dr Hawkes in August 2006 who noted that Mr Van der Poel Jnr at that time also complained of neck pain. Dr Hawkes did not expect his injuries to result in long term disability.

126 Dr Hawkes referred to Mr Van der Poel Jnr's pre-existing spinal problems. These were related to a back injury suffered by Mr Van der Poel Jnr in the course of his employment for which he received workers compensation. It appeared that Mr Van der Poel Jnr received psychiatric treatment at the expense of the workers compensation insurer as a result of the back injury. Mr Van der Poel Jnr also had a history of drug and alcohol abuse with an associated criminal history.

127 He did not tell Mr Maxwell, psychologist, when he consulted him in January 2008 that he received counselling in relation to his back injury, nor did he make mention of his history of drug and alcohol abuse. In fact, Mr Maxwell reported that Mr Van der Poel Jnr denied having any psychiatric history or contact with mental health professionals prior to the incident of September 2004. He denied any family history or substance abuse Exhibit D2. Further, the history provided to Mr Maxwell of the nature of his injuries did not accord with the record provided by Dr Hawkes.

128 Mr Van der Poel Jnr attributed these inaccuracies in his history to the affect that the incident had on his memory and his capacity to think coherently. There was, however, no evidence that he suffered cognitive impairment as a consequent of the incident. The result was that no reliance could be placed on the opinion provided by Dr Maxwell.

129 Dr Patrick provided a medico-legal report in which he recorded Mr Van der Poel Jnr's complaints as left shoulder and left scapular pain, neck discomfort and stiffness and worsening depression. Dr Patrick considered Mr Van der Poel Jnr's injuries and ongoing symptoms to be sufficiently significant to render him unfit for all work as a result of the injuries related to the incident and the pre-existing back injury.

130 Assessment: The defendants were critical of the claim for damages on the basis that it was exaggerated and overstated. The defendants did not seek to have Mr Van der Poel Jnr medically examined and therefore the court did not have the benefit of alternative medical opinions. I was satisfied, however, that there was a considerable degree of overstatement of the consequences to Mr Van der Poel Jnr of the injuries suffered in the incident. This appeared to have been recognised by the submissions on damages filed on his behalf. I have assessed his damages as follows: 1 General Damages: Mr Van der Poel Jnr had a history of back injury, psychiatric problems and drug and alcohol addiction that pre-dated the incident. As noted, the report of Mr Maxwell was of no assistance in deciding whether and, if so, to what extent Mr Van der Poel Jnr suffered a psychiatric injury as a result of the incident. Dr Patrick's diagnosis of injury to both of his shoulders was based upon an unreliable history of events. Treatment expenses for Mr Van der Poel Jnr, including those for psychiatric treatment, were met by the workers compensation insurer to the end of 2004, suggesting that the problems from which he was suffering at that time were caused by his work related injury. There was therefore evidence to support only injuries in the nature of bruising from the blows received and some level of trauma. I assessed Mr Van der Poel Jnr's general damages at $10,000. 2 Out of pocket expenses: Past out of pocket expenses have been met by the workers compensation insurer. In the absence of reliable evidence there was no basis for an award of damages to cover the cost of psychological treatment. 3 Aggravated damages: I was satisfied that this was a case where an award of aggravated damages was warranted. The damage suffered by Mr Van der Poel Jnr was more than the result of negligence on the part of the defendants. They injured him deliberately and, with the use of the cricket bat, cruelly. I assessed aggravated damages at $5,000. 4 Exemplary damages: I was also satisfied that this was a case where an award of exemplary damages was warranted. The defendants took the law into their own hands. They did so in a suburban street on a Sunday afternoon. The circumstances and timing of their assault on Mr Van der Poel Snr could hardly have been more demonstrative of their lack of concern for the plaintiffs, the Finigans and the rights of citizens to enjoy peace and harmony in their homes. The award of exemplary damages is made to mark the court's disapproval of the conduct of the defendants and to deter others from behaving with the same level of disregard for the due process of the law. I assessed exemplary damages at $10,000.

131 In proceedings 316/07: 1 Verdict and judgment for the plaintiff against the defendants in the sum of $98,154.95. 2 The defendants are to pay the plaintiff's costs of the proceedings as agreed or assessed. This order is suspended for 7 days to allow the parties to arrange within that period to list the proceedings for further argument, if required. 3 Exhibits will be retained for 28 days. 4 My reasons are published.

132 In proceedings 317/07: 1 Verdict and judgment for the plaintiff against the defendants in the sum of $25,000. 2 The defendants are to pay the plaintiff's costs of the proceedings as agreed or assessed. This order is suspended for 7 days to allow the parties to arrange within that period to list the proceedings for further argument, if required. 3 Exhibits will be retained for 28 days. 4 My reasons are published.

i Transcript D4.10.12 ii Transcript D4.14.23 iii Transcript D5.10.10 iv Transcript D4.98.47 v Transcript D5.109.33 vi Transcript D5.87.48 vii Transcript D5.112.32 viii Transcript D5.60.1 ix Transcript D4.26.25 x Transcript D4.27.21 xi Transcript D5.118.35 xii Jones v Dunkel (1959) 101 CLR 298 xiii Briginshaw v Briginshaw [1938] 60 CLR 336 xiv Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1, per Dixon, Williams, Webb, Fullagar and Kitto JJ xv Civil Liability Act 2002, s 3B(1)(a) xvi Exhibit D2

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