Fontin v Katapodis; Katapodis v Fontin [1962] HCA 63

High Court of Australia Dixon C.J. McTiernan and Owen JJ. Fontin v Katapodis; Katapodis v Fontin [1962] HCA 63

ORDER Appeal of Fontin (No. 14 of 1962) dismissed with costs. Appeal of Katapodis (No. 15 of 1962) as against the respondents Millars' Timber & Trading Company Limited and Harris Scarfe & Sandovers Limited dismissed with costs. Appeal as against the respondent Fontin allowed with costs. Order of Supreme Court varied by increasing the amount of damages to £2,850.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 10 Dixon C.J.

In my opinion the appeal by the defendant Fontin (No. 14 of 1962) should be dismissed with costs and the appeal by the plaintiff Katapodis should be dismissed as against the defendants respondents Millars Timber & Trading Co. Limited and Harris Scarfe & Sandovers Limited with costs, and allowed as against the defendant Fontin with costs. The order appealed against should be varied by increasing the amount of damages to £2850.

I have had the advantage of reading the judgment prepared by Owen J. and agree in it. There is, however, one reservation or observation which I would make: it is in relation to the reference to Reg. v. Howe [7] . In that case we were not concerned with the question whether there were any grounds in fact for a defence of self-defence to the charge of murder. The reason is that the Crown had obtained special leave to appeal for the purpose of examining the proposition or propositions of law upon which the order of the Supreme Court was founded, not the propositions of fact or of evidence which formed the basis or groundwork for the application of these propositions of law (if correct).

1. (1958) 100 C.L.R. 448. McTiernan J.

These appeals arise out of an action for assault and battery. The plaintiff was Katapodis and the defendants were Fontin and his employers, Millars and Sandovers. Katapodis alleged that Fontin assaulted and beat him and that Millars and Sandovers were vicariously liable on the same cause of action. The defendants said in answer to the alleged cause of action that Katapodis first assaulted and beat Fontin and he necessarily assaulted and beat Katapodis in his own self-defence. Millars and Sandovers denied that Fontin committed the alleged assault and battery in the course of carrying out his employment as their servant. Bridge J., who was the trial judge, found that Katapodis first beat and assaulted Fontin and he thereupon assaulted and beat Katapodis, but in so doing Fontin exceeded his right of self-defence. Accordingly, he decided that Fontin was liable for the damage and loss which Katapodis suffered in the affray. The learned judge decided that Fontin did not assault and beat Katapodis in the course of Fontin's employment with Millars and Sandovers and accordingly dismissed the action as against them. The learned judge assessed the damages at £2,850 which Katapodis should recover from Fontin in respect of the personal injury he suffered and the expenses and financial loss he incurred in consequence of the assault and battery. He found that Katapodis provoked Fontin into the assault and battery he sustained and on that basis mitigated the total damages of £2,850 to the extent of £850. There was, therefore, a verdict and judgment of £2,000 in favour of Katapodis against Fontin.