UNDERHILL v SHERWELL [1997] NSWCA 325

UNDERHILL v SHERWELL

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER, SHELLER and BEAZLEY JJA 11 November 1997, 18 December 1997 [1997] NSWCA 325

Torts — Trespass to person — Civil assault — Self defence — Reasonable self defence — Justification — Excessive force — Whether act of self defence excessive — Onus — Whether onus on plaintiff to prove excessive force used or on defendant to prove that there was not.

Damages — Damages for loss of chance — Assessment.

This was a plaintiff's appeal arising from an incident which occurred on 11 April 1989. The trial judge, accepting the respondent's version of the incident, found that an argument had started between the parties and that the appellant had attacked the respondent with her fists and feet. The respondent had put up his hands to defend himself, and came into contact with the appellant's face. The appellant sustained her injuries on the day she was to be interviewed for employment. The interview was a final interview. On the appellant's action for damages, the trial judge found that the respondent had acted in reasonable self defence.

The appellant argued that the nature of her injuries suggested that she was hit with considerable force, far more force than a male putting up his hands simply to ward off a female. One question which arose in the determination of this question was whether the onus was on the appellant to prove that excessive force was used, or on the respondent to prove that there was not.

The appellant also appealed against the trial judge's award of damages.

HELD, allowing the appeal:

(1) The respondent had a right, in the circumstances of the case, to defend himself.

Fontin v Katapodis (1962) 108 CLR 177; McClelland v Symons [1951] VLR 157; Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645; R v Loughnan [1981] VR 443 considered.