McDonald, Colin R. --- "Roberts v Devereux" [1982] AboriginalLawB 29; (1982) 1(4) Aboriginal Law Bulletin

• Roberts V Devereux
• Civil Damages-Assault-Aborigine And Licensee-Entitlement To Intervene In Fight-Claim Of Self Defence-Onus On Assailant To Prove Reasonableness Of Actions-Loss Of Ceremonial Function Taken Into Account In Assessment Of Damages.

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Roberts v Devereux

Civil damages - assault - Aborigine and licensee - entitlement to intervene in fight - claim of self defence - onus on assailant to prove reasonableness of actions - loss of ceremonial function taken into account in assessment of damages.

Roberts v Devereux

Supreme Court of the Northern Territory (No. 450 of 1980) at Darwin (Forster CJ)

22 April 1982

Casenote by Colin R. McDonald

On the evening of 21 March 1980, the defendant punched the plaintiff on the jaw, causing the plaintiff to fall to the ground and, either because of this or the blow to the jaw or a combination of both, he was rendered temporarily unconscious. The plaintiff sued to recover damages with respect to the assault. The defendant admitted the assault, but said that when he struck the plaintiff he used no more force than was reasonable. This somewhat elliptical pleading devloped into a plea of self defence.

The defendant was at material times the owner and licensee of the Mataranka Hotel near Katherine where the assault took place; the plaintiff was a customer drinking in the hotel. The defendant was a tall, fairly heavily built European man and the plaintiff was a full blood Aborigine, considerably smaller and very slightly built. At the relevant time, the defendant was entirely sober and the plaintiff was very drunk.

Forster CJ divided the confrontation between the parties into two parts although they were separated by a comparatively short space of time. His Honour accepted criticisms by counsel for the defendant concerning inconsistencies between the evidence of the plaintiff and the defendant and certain internal inconsistencies. He went on to state that the proper resolution of the issues in the case depended more upon the evidence of the defendant, whom he found to be a more reliable witness.

On the night in question the plaintiff was very drunk and was playing pool. His wife was angry with him and was urging him to leave the hotel and come home. This annoyed the plaintiff who shouted back at his wife and eventually pushed her so that she fell over. The plaintiff struck her a number of times. The defendant entered the area of the hotel where the fight between the plaintiff and his wife was taking place. He called upon the plaintiff to desist from assaulting his wife, whereupon the plaintiff threw a metal chair at him which missed. The defendant then picked up another chair and menaced the plaintiff with it. The defendant then picked up a piece of wood (four feet long and four inches by one inch) and struck the plaintiff across the chest with it. He told the plaintiff to leave the premises which the plaintiff proceeded to do with some assistance from the defendant. This was the first incident.

Forster CJ held that the defendant was entitled to intervene 'to stop the serious assault' on the plaintiff's wife. His Honour here followed the decision of Bray CJ in Pearce v Hallett (1969) SASR 423. His Honour held that the defendant's action in striking the plaintiff tiff with a piece of wood was action reasonably taken in defence of himself and the plaintiff's wife. The defendant satisfied His Honour on the balance of probabilities that his actions thus far were reasonable and that no liability should attach to him for what His Honour called 'the first assault'.

After this assault, while the defendant was shepherding the plaintiff towards the exit of the hotel, the plaintiff was asking if he could go back and get his hat and shirt which he had earlier removed in the hotel. The defendant refused, but said that he would find the hat and keep it for him. When the plaintiff was close to the exit with the defendant immediately behind him, the plaintiff turned around and swung a punch at the defendant which the defendant dodged. Thereupon the defendant struck the plaintiff on the jaw, a blow sufficiently hard to knock the plaintiff to the ground and render him unconscious and fracture his jaw. The defendant argued that when he struck the blow which caused the damage he was acting in self defence.

Forster CJ stated: 'The law on the matter of self defence as a defence to a claim from assault in a civil case is conveniently stated in the judgement of Bray CJ in Pearce v Hallett, with whom I respectfully agree. Once an assault is proved, and in the present case it is admitted, the onus lies upon the assailant, in this case the defendant, to prove the reasonableness of his action said to be taken in self defence.'

His Honour then referred to the defendant's evidence-in-chief:

What happened next?

We were half way to the exit and Roger (Roberts) turned around and took a swing at me.

What with?

With his fist.

Which one?

I presume it would be his right one, probably.

What did you do?

I ducked, and, reflex blow, I sort of punched him back.

Did you punch him hard, or soft, or what?

Well from his previous condition and what I'd witnessed of him before, I sort of - well, I sort of hit him hard to sort of make him feel that, you know, I wasn't sort of mucking around.

His Honour then compared the plaintiff's and the defendant's respective physical builds and sobriety. He continued:

Self defence is one thing and angry retaliation is quite another. I do not think it was reasonably necessary for the defendant to strike the plaintiff such a hard blow or indeed to strike him with his fist at all ... I think it probable that the blow struck by the defendant was angry retaliation to the punch thrown by the plaintiff. The defendant describes it very well in his evidence quoted above: "I ducked, and reflex blow, I sort of punched him back." I am aware that one must not be hypocritical in the peace and calm of a court room or a judge's chambers when evaluating the actions of people caught in a sudden and difficult situation, but having considered the matter at length, I doubt that the defendant was acting in self defence at all when he struck the plaintiff on the jaw, and even if he were, I find that the defendant has not satisfied me that his actions were reasonable, rather the reverse. I find that they were immoderate. The plaintiff is, in my view, entitled to succeed in his claim for damages with respect to the blow to his jaw. It remains to assess his damages.

In assessing damages as to the plaintiff's loss of enjoyment of life, His Honour made a significant decision in that he accepted loss of ceremonial function as a proper claim compensable in money terms under this head of damages. His Honour said:

He also says that he feels unable to play his full part in ceremonies involving loud singing because of the limitation of his jaw movement. I feel he exaggerates this last complaint somewhat but nevertheless it is a factor to be taken into account ... I assess the plaintiff's damages for loss of enjoyment of life at $1,000.

There were also pleaded claims for aggravated damages and exemplary damages, but the evidence called by the plaintiff did not, in His Honour's view, warrant an award of extra damages under either head.

The plaintiff's damages were assessed as follows:

Pain and suffering $1,500

Loss of enjoyment of life $1,000

Economic loss $1,000

$3,500

There was judgment for the plaintiff in the sum of $3,500 plus costs to be taxed.

Mr D. Parsons instructed by the North Australian Aboriginal Legal Aid Service Inc. appeared for the plaintiff.

Mr M. Ward instructed by Messrs McCormack & Co. appeared for the defendant.