MILLER v SOTIROPOULOS [1997] NSWCA 204

MILLER v SOTIROPOULOS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, MEAGHER and POWELL JJA 18 August 1997, 18 August 1997 [1997] NSWCA 204

Tort — Trespass to person — Defendant alleges provocation — Whether a defence — Defence alleges self-defence — Onus of establishing — Excessive force — Opportunity to retreat — Relevance of

Powell JA This is an appeal from a judgment delivered, and verdict found, on 20 September 1996 by Holt DCJ in the District Court in Sydney in proceedings which had been brought by the Respondent against the State of New South Wales ("the State") and the Appellant seeking damages in respect of an incident which had occurred at the Plumpton High School ("the School") on 28 August 1987. In that incident, the Respondent had been struck on the jaw by the Appellant, the Respondent's jaw being broken. The claim made by the Respondent against the State was that it had been negligent in its supervision of the pupils at the School at the relevant time, while the claim made by the Respondent against the Appellant was that the Respondent was guilty of assault and battery.

28 August 1987 was a rainy day at Plumpton, so that, when it came to the luncheon break, the pupils at the School were assigned to various places within the school buildings for the purpose of their taking the luncheon break. It was during the period of the luncheon break when the incident in question occurred.

It would appear that, during the early part of the luncheon break, there had been an incident involving the Appellant and a younger boy at the School. As a result of that incident, the Respondent, together with a Robert Hakim, went to the place where the Appellant was sitting with some other friends, and that, after apparently exchanging words with the Appellant, Robert Hakim then essayed what was described in the evidence as "a karate kick" in the direction of the Appellant's head - whether by accident or design the kick went over the Appellant's head.