New South Wales Court of Appeal CITATION : Anton v White [2001] NSWCA 66 FILE NUMBER(S) : CA 40974/99 HEARING DATE(S) : 13 March 2001 JUDGMENT DATE : 30 March 2001 PARTIES : Jonathon Anton v Anthony White JUDGMENT OF : Mason P at 1; Priestley JA at 2; Barr J at 42 LOWER COURT JURISDICTION : District Court LOWER COURT 7390/97 FILE NUMBER(S) : LOWER COURT Mahoney DCJ JUDICIAL OFFICER : COUNSEL : Appellant - M.C. Ramage QC, D.R. Williams Respondent - J.E. Maconachie QC, I.R. Pike SOLICITORS : Appellant - W.R. Ghioni Solicitor Respondent - Carroll & O'Dea CATCHWORDS : Claim for damages for assault - dismissed by trial judge - attack on trial judge's findings of fact - whether demonstrably wrong - held: no sufficient basis for interfering with judge - s conclusions based on his principal findings of primary fact CASES CITED: Briginshaw v Briginshaw (1938) 60 CLR 336 DECISION : Appeal dismissed with costs. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40974/99 DC 7390/97 MASON P PRIESTLEY JA BARR AJA Friday, 30 March 2001 ANTON v WHITE 1 MASON P: I agree with Priestley JA. 2 PRIESTLEY JA: Introduction . On 22 March 1991 Mr J. Anton (the plaintiff) commenced proceedings in the Common Law Division of the Supreme Court against Mr A. White (the defendant). The plaintiff's statement of claim was in very simple terms. He alleged that on 23 September 1990 the defendant assaulted him, he gave particulars of his injuries, and he claimed damages. 3 The proceedings were later transferred to the District Court. 4 In the final form of the grounds of defence filed in the District Court, the defendant: 1, denied he assaulted the plaintiff; 2, pleaded self-defence; 2A, pleaded (a) inevitable accident, or (b) conduct of the plaintiff involving no fault or want of care on the part of the defendant; 2B, said that the plaintiff had advanced upon the defendant quickly and aggressively and with the intention the defendant be put in fear of his safety and that no action by the plaintiff was maintainable because his actions were unlawful; 2C, said that in the circumstances alleged in 2B, the plaintiff voluntarily assumed risk of injury to himself; 3, did not admit the particulars of injuries or disabilities; 4, said if he were liable for assault, which he denied, the circumstances giving rise to any such liability were provoked by the plaintiff. 5 The case was heard over seven hearing days during October 1999 by his Honour Judge Mahoney QC, who on 17 November 1999 published detailed reasons for his conclusions and ordered a verdict and judgment for the defendant. 6 The plaintiff appealed to this court. Matters not in dispute . 7 Some of the circumstances relating to the alleged assault are not in dispute. 8 The plaintiff and his wife lived in Unit 3 in a block of four home units. The defendant and his wife lived in Unit 2. Before 23 September 1990 there had been disputes and ill feeling between the plaintiff and the people living in Units 1, 2 and 4. 9 On 23 September 1990 the defendant knocked at the front door of Unit 3 at about 1.45 pm. He was carrying a bow saw (sometimes called a bush saw) and a saw blade. The plaintiff answered the door. At some stage the defendant walked into and down the Unit's hallway. The plaintiff asked him to get out. There was an argument. The defendant moved out of Unit 3 and was for a time near its front door. At some stage the plaintiff suffered scrapings on his forearms, some of them amounting to small cuts, and a cut on his right wrist. (This description is based on coloured photographs (Exhibits H, J, K, L and M) taken when police officers went to the plaintiff's home unit very shortly after the incident. The doctor who examined him next day described some further bruising and scratches which the doctor mostly called superficial.) 10 The defendant had gone to the plaintiff's home unit with the saw because he believed it belonged to the plaintiff and that the plaintiff had a similar but not identical saw of the defendant's. The defendant wanted to swap saws. The blade the defendant was carrying did not fit the saw he was holding. The defendant intended to use the blade to show the plaintiff that it fitted the saw in the plaintiff's possession and so help persuade him that each was in possession of the wrong saw. 11 Police were called to the plaintiff's home unit immediately after the incident. The coloured photographs were taken while they were there. The police spoke to the plaintiff and his wife and saw the bloodied appearance of the plaintiff's hand and forearms. They then spoke to the defendant and arrested and later charged him with assault occasioning actual bodily harm. (This charge was some time later, after representations by the defendant, not proceeded with.) The disputed facts . 12 Within the undisputed factual framework, two quite different versions of the events were given by the plaintiff and the defendant. 13 The plaintiff's version. The plaintiff said that when he opened his front door he saw the defendant with a blue saw in his right hand and a saw blade in his left hand and yelling that there was a mix-up over the saws and he wanted his saw. The plaintiff said he backed off up his hallway and the defendant was still yelling and jumping up and down; the defendant came inside the hallway; the plaintiff's wife said she would get the saw; and the defendant went on, "... at this stage he attacked me"; he further said that the defendant "started to hit me with this saw and the saw blade" and that "a lot" of blows were landed; the plaintiff lost his balance, went backwards, hit his head against the wall of the hallway and was sliding down and the defendant was still hitting him; his wife helped him up from floor level; and the two of them were covered with blood; his wife went to a cupboard under the stairs, got the saw which she gave to him and which he gave to the defendant who was backing out the doorway. In cross-examination he said that he was hit with both the saw and the blade, "there was both hands", the saw struck him about the arms, and "there were two chopping motions, he was using both hands". He was then asked whether if he had been struck with a chopping motion by the saw as opposed to the saw blade, the injuries would not have been devastating. He answered "I don't know ...". On his account, the defendant attacked him in the hallway of Unit 3. At various times he demonstrated the position of his body and hands, and the defendant's hands, at particular stages of what he was describing. 14 The defendant's version. The defendant said that he had the saw and the saw blade with him when he knocked on Unit 3's door. He said to the plaintiff that he thought there had been a mix-up with their saws. The plaintiff disagreed and walked back up the hall. The defendant walked in after him. The plaintiff turned around and shouted loudly to the defendant to get out of his house. The defendant started to walk towards the front door. He could hear the plaintiff shouting "Get out, get out". The defendant walked just outside the door and turned around. The plaintiff came to the threshold and in an ordinary speaking voice started talking about another subject. The defendant said he only wanted to talk about the saw and that the plaintiff then started shouting again, swore at him and "came forwards towards me with his hands raised and his fists in the air". The defendant thought the plaintiff was going to hit him. The defendant stepped back, the plaintiff was still coming towards him with his right hand raised as though he was going to punch him. The defendant put up his hands to defend himself. The defendant demonstrated in the witness box the way he said the plaintiff had been holding his hands. He also demonstrated the position of his own hands. The trial judge described in his words, for the benefit of the transcript, what was shown by the defendant's demonstrations. The defendant said he was holding the saw in his right hand and the blade, partly sheathed, in his left hand and that the plaintiff kept coming towards him and walked into the saw. When this happened the plaintiff leapt back into the unit. The defendant said the plaintiff picked up something from behind the front door and came towards the doorway saying "I'm going to get you you bastard". The plaintiff came past his front door carrying a hammer in his right hand, in a hitting position. The defendant said the plaintiff was hitting him with the hammer and he held up his hands to protect his head and ducked his head. Again he demonstrated the position and attempts were made to describe the demonstration for the benefit of the transcript. While in this position he could feel the plaintiff landing blows on his back. He then managed to retreat. There was no further physical contact between them. 15 The plaintiff's wife was present in Unit 3 while the defendant was there. She did not see everything that happened. She described the plaintiff and the defendant in the hallway of the unit and "a lot of shouting". She said she saw the saw and the blade being waved around and the plaintiff with his head bowed and his fingers outstretched near his head. (She demonstrated his position.) her evidence was that she then went to look into the cupboard under the staircase to see if there was another saw there. She could not see it and went back to where she could see the two men in the hallway. Her husband was shouting at the defendant to go out and that he was trespassing. She said she grabbed her husband from behind to try and pull him away and that the defendant just would not go away. Then she said that when she looked down afterwards she had blood on her which was not her blood. She then went and tried again to find the saw. This time she did, and when she saw the defendant again he had left the unit. She remembered her husband telling her to get the police. She was cross-examined in detail about each part of the sequence of events from the time of the defendant's knocking on the unit's door to the time when he left. At one point there was a question about the defendant's glasses which led to an answer on which the trial judge apparently later relied: " Q. Did you see him without glasses at any time during that encounter? A. Can I be really frank with you? Q. Please do Mrs Anton? A. My memories are of him, Mr White, being in the house. I remember a very heated situation where there seemed to be not a lot of sense on either side, and to be perfectly honest I couldn't have taken in half of what you're asking me. I was distressed, I wanted an end to this. " Mrs Anton made somewhat similar remarks in a number of places while giving her evidence. 16 There was a great deal more evidence in the case, both of the three persons already dealt with, and of others, than I have summarised. Much of it was concerned with the plaintiff's credibility. However, I have said enough to provide a background to the way the trial judge decided the case. The trial judge's reasons . 17 The trial judge recounted the opposing cases of the parties. He referred to the criminal nature of the allegations raised by the plaintiff against the defendant, noting that that made it necessary for him to apply the well-known observations of Sir Owen Dixon in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361. He then discussed Mrs Anton's evidence, and in particular the way she gave it. His conclusion was that she was an objective, unbiased witness doing her best to tell the truth. Then he considered the reliability of the plaintiff's evidence. He gave a number of reasons for concluding that he was an unreliable witness. Next he considered the reliability of the defendant's evidence and concluded that he also had given an unreliable version of what happened. In particular he said he was not satisfied, on applying the principles in Briginshaw that the plaintiff had had a hammer at his front door, let alone that it had been swung at the defendant. His conclusion was that he did not accept the defendant's evidence about each and every step in the incident although he said he tended to the view that the defendant's version was more reliable than that of the plaintiff. 18 The trial judge also made findings about particular facts, the most relevant for present purposes being the following: " Although the pictorial evidence of the plaintiff's injuries are lurid, the lacerations and abrasions were minor, needed no sutures, have caused no lasting functional deficit, are minimal from a cosmetic point of view and are ever so much less serious than would have occurred if the defendant had attacked him by using a chopping motion with the bow saw as the plaintiff had demonstrated in court. " 19 Near the end of his reasons, under the heading of "Level of proof achieved", the trial judge said: " Neither the plaintiff nor the defendant has satisfied me to the level required by the caselaw that his version of the altercation is completely correct. If the plaintiff's version be even nearly correct, then I would have expected him to have been more seriously injured. He had been too shocked on the occasion to be able to give a blow by blow description of it from start to finish. He was certainly in a state of shock and considered to be an inappropriate witness when the police attended the scene. Accordingly the chance of him being a reliable witness now, 7 years later, is a remote one indeed. Also the defendant would have been behaving in a most bizarre fashion, apparently quite out of keeping with his normal style of behaviour, if the plaintiff's version is correct. If the defendant's version of events be even nearly correct, then the ferocity of the hammer attack he describes would seem to be out of all proportion to the superficial injuries displayed on his body - even if inflicted by a hammer with a 'soft' end. The only eye witness fully concedes that her recollection of those parts of the altercation she saw is seriously flawed by her emotions at the time, by the passage of events in her marriage since then and by the length of time generally since the altercation occurred. The plaintiff bears the civil onus of proof that the defendant committed a trespass upon him. He has failed to establish that allegation to my reasonable satisfaction. Accordingly it is otiose for me to embark upon any enquiry whether the defendant had discharged the onus of proof incumbent upon him ( McHale v Watson 111 CLR 384). Should it have been otherwise, however, the defendant's version of events would not have been entirely accepted by me, inter alia , because he had failed to establish to my reasonable satisfaction, his allegation that the plaintiff had ever produced and wielded a hammer against him at a late stage of the altercation. " 20 On this basis, the trial judge entered a verdict and judgment for the defendant, with costs. The plaintiff's submissions on appeal . 21 In the appeal the plaintiff's submissions were all necessarily directed to challenging the trial judge's fact finding. It was submitted that his reasons showed that he was mistaken in a number of ways, which, cumulatively, meant that his conclusions could not stand and there would have to be a new trial. 22 One of the group of matters which, it was submitted, when taken together, led to this conclusion was the finding I have reproduced in par 17. It was submitted that it was not open to his Honour to act upon the conclusion that he expressed in that passage because, it was said, there was medical evidence (by way of a report) supporting the plaintiff in the sense that it said that his injuries were consistent with the kind of attack that he had described. It was submitted the trial judge was not entitled to substitute his own opinion for the expert one. 23 I do not agree with this submission. What the trial judge did was to consider the plaintiff's wounds as shown with moderate clearness in the photographs in evidence in the light of the saw and the blade which were also both in evidence and in light of the demonstration the plaintiff had given in the witness box of how the blows he claimed had been inflicted on him had been delivered. I do not see how the trial judge could avoid forming a view about the relation or lack of it between the alleged blows and the inflicted wounds, nor do I see that there was any reason why he should not act upon the impression he formed. The medical evidence in question does not seem to me to be by any means conclusive either in content or in tone. 24 The remaining matters in the group relied on by the plaintiff's counsel included some of minor significance and some, which, to my mind, comprised the most significant aspects of the appeal. I will mention these, and then discuss them and explain why, even taken altogether, I do not think they significantly undermine the conclusions reached by the trial judge. 25 The matters of some significance were: a misapprehension by the trial judge of one answer made by the plaintiff's wife in her evidence; the use made by the trial judge of the evidence of the plaintiff's wife; the effect of the trial judge's finding that he was not satisfied by the defendant that the plaintiff had hit him with a hammer; the use made by the trial judge of the accounts contained in various medical reports of the plaintiff's description to the doctors of the attack upon him by the defendant; and the relevance of the legal proposition that the plaintiff had been entitled to use reasonable force to compel the defendant, a trespasser, to leave the unit after he had been told to go. 26 The first of these matters is a clear instance where the trial judge made a mistake. In preparing his reasons for judgment, from his own notes because no transcript was available, he wrote that the plaintiff's wife had been prepared to go so far as to say that at the time immediately before the defendant had knocked on the door of the plaintiff's unit, the plaintiff had become "infuriated" upon learning of the contents of some documents delivered to the unit a short time before by the defendant. The plaintiff had said that he did not think he ever read the particular documents; as the judge thought the wife had said that the plaintiff had become infuriated on learning of the documents, this would make it more likely that in the ordinary course he would have some recollection of their contents. The judge thought that the plaintiff's refusal to admit to having any knowledge of the contents of the documents reflected adversely on him. The way the judge had understood the wife's use of the word "infuriated" was different from the way she had used it as recorded in the transcript available to this court. She had been asked whether the plaintiff had expressed any annoyance about the content of the documents and she had answered, "Not annoyance in the sense that it infuriated him, but I guess the fact that we ...". The rest of the answer, and the following questions, led to the plaintiff's wife agreeing with the way the cross-examiner eventually put it, that the plaintiff's feeling had not been "one of great joy". 27 The judge had thus made a mistake about the wife's use of the word, and naturally, counsel for the plaintiff sought to make the most of the mistake. However, when the whole passage of the wife's evidence on this matter is read and then the judge's finding about it is considered, I do not think the mistake was of any great significance. The judge's reference to the word "infuriated" came towards the end of a passage in which he was commenting on the plaintiff's attempt to emphasise he had never seen the documents in question and contrasting that with his wife's evidence that she had discussed the contents of the documents with the plaintiff. It was this inconsistency which led the trial judge to think the less of the plaintiff's credibility. The reference to his having become "infuriated" by learning of the content of the documents no doubt highlighted his expression of the view he had formed but it seems to me that in light of the whole of the relevant passage of cross-examination and the basic reason, which he stated, for treating the incident as damaging the plaintiff's credibility, his opinion would have been substantially the same upon a completely accurate recall of the evidence of the plaintiff's wife. 28 Another aspect of the matter discussed in the previous paragraph is that it is one of a number of examples in the trial judge's reasons of his acceptance of the evidence of the plaintiff's wife on aspects of the altercation between the plaintiff and the defendant. The plaintiff pointed to these matters and to the trial judge's description of the plaintiff's wife as a witness who was objective and doing her best to tell the truth, and submitted that there was a significant inconsistency between this and his treatment of her evidence as "seriously flawed" as he said in the passage quoted in par 18. It was also submitted that the plaintiff's wife had not conceded, at least in terms, what the judge recorded in that passage, that she had fully conceded her recollection was seriously flawed. 29 On the face of it, this submission is attractive. There were however a number of statements by the plaintiff's wife in the course of her evidence, which, although they do not use the word "concede" do, when taken together, in my opinion justify the judge's summation. The trial judge did not say that he did not accept any of the plaintiff's wife's evidence. As I have already mentioned, there were a number of instances of his direct acceptance of her. However, she did not give any evidence of seeing blows struck by the defendant which actually hit the plaintiff. The highest her evidence went was to speak of a lot of shouting and the saw and blade being waved around and jabbed. She did not describe the plaintiff being struck. She had also said in her evidence words to the effect that she had not wanted to watch what was going on; further, for what may have been significant parts of the altercation, she was trying to find the saw and not watching the nearby events. 30 In these circumstances I think the trial judge was entitled to treat her evidence in the way that he did. 31 The submission concerning the trial judge's finding adverse to the defendant concerning the hammer was that the judge failed to realise that once the hammer was out of the picture, the basic materials upon which he had to base his factual conclusions were changed and changed in a way which should have led him to realise that the defendant's account was quite unacceptable. The submission made the point that the defendant's description of the offensive attitude he took up and the position of his hands when he saw the plaintiff advancing towards him did not make any sense once the need to protect himself from the hammer no longer existed. 32 I do not think this submission should be accepted. The plaintiff, his wife and the defendant all demonstrated, while giving their evidence, the positions of the plaintiff and defendant, and the trial judge did his best to see that an accurate description of those positions was recorded in the transcript. It seems to me it was much easier for the judge to understand the conflicting contentions about the likely path of the saw and the blade in relation to the body of the plaintiff than it is for any member of this court to get any real grasp of what was (allegedly) happening from the descriptive words appearing in the transcript. So far as I can follow the various descriptions in relation to the evidence, I do not see anything inherently improbable in the proposition that the wounds suffered by the plaintiff were as consistent with the defendant trying to ward the plaintiff off as with the defendant directly attacking the plaintiff. 33 The judge was criticised because he thought a feature of the plaintiff's evidence detracting from its weight was that the version of events given by him in court differed significantly from what he told the doctors examining him. He said, that most notably, the history he gave to Dr Sebesfi on the day after the altercation was quite different from his evidence in court. 34 At first I thought there was some force in this submission because, it seemed to me that there was a certain consistency in what all the doctors had recorded the plaintiff as telling them about the circumstances of the attack. However, two matters seem to me to reduce the weight of the criticism. The first is that the way in which the plaintiff dealt with cross-examination on this topic itself showed him in rather a poor light. Second, and more importantly, although there is some consistency in what the plaintiff told the doctors, as recorded in all the reports, there is one feature of them which tells against him. The earliest report, that of Dr Sebesfi, which is a brief report of the plaintiff's consultation with that doctor the day after the incident, records that the plaintiff told the doctor of the defendant wielding the saw and the blade in the hallway of the plaintiff's home and then that "as he was pushing his assailant towards his front door his neighbour began flailing with both weapons. [The plaintiff] raised his arms in front of his face to defend himself". The next report, that of Dr Beran of 26 September 1990 recording a medico-legal consultation on 25 September 1990, two days after the incident, gives a fuller account of what happened than Dr Sebesfi's report but also records "the patient pushed the neighbour out of his house ...". None of the later reports records the plaintiff as having told the medical practitioner that he pushed the defendant out of the unit. I think the judge was entitled, after seeing the plaintiff cross-examined about these matters, to attach some significance to what he may well have thought was a change of story on the part of the plaintiff, the later versions of which, with the omission of his pushing the defendant out of the hallway, depicted the plaintiff as never actively trying to get the defendant out of the unit. 35 The next matter concerned the lodging of a complaint by the plaintiff on 17 July 1992 seeking protection from the defendant on the back of which were typed the circumstances from which the complaint arose. These circumstances contained an allegation that the plaintiff had lost the sight of his left eye as a result of the attack in September 1990. In fact the plaintiff had lost his sight in that eye many years before. He had worn a patch over this eye for many years. The fact of the loss of his sight in that eye must have been known to the defendant. The proceedings heard by Mahoney DCJ had been commenced in March 1991 and in the particulars given in the statement of claim then filed had referred to impaired vision. I think there is some strength in the submission that the statement in the complaint was a mistake but not an intentional one. Someone else had typed the complaint and the circumstances on the back of it in the plaintiff's presence. This however is not in my opinion of much assistance to the plaintiff in the appeal. The trial judge's criticism of him concerning this incident does not seem to me to have been based upon the idea that there was a deliberate intent to deceive; the trial judge's criticism went to the manner in which the plaintiff tried to excuse himself for the making of the mistake. It was this that contributed to the trial judge's eventual overall impression of the plaintiff. 36 The last of the matters relied on in the appeal which seem to me to be of possible significance was the fact that, on the plaintiff's version of events, he had asked someone in his home whom he did not want to be there to leave and was entitled to take reasonable measures to make certain that person went. There is no sign in the appeal papers of this aspect of the situation having been relied on at the trial in any way. The issue joined at the trial was between the two competing versions of the incident. It may be that some use could have been made at the trial of the legal entitlement to eject a trespasser, but whether that be so or not, it is too late to raise the matter as a relevant consideration in an appeal when no use was made of it at trial. In addition to there being no sign of the use of the concept at the trial in the appeal papers, counsel for the defendant who appeared both at the trial and in the appeal informed the court, without objection, that the matter had not been raised at the trial. 37 As I earlier indicated, the group of matters I have just been discussing seemed to me to comprise the strongest way in which the plaintiff's case could be put on appeal; a number of other arguments were put, but if the main group carried no real weight, then none of the minor arguments could improve the situation for the plaintiff. 38 In my opinion the main group, for the reasons I have given, do not make any significant inroad upon the trial judge's fact finding. Conclusion . 39 In the end, the case remains one in which the trial judge assessed all the witnesses and evidence before him and made findings of fact in the reasons for which no significant misunderstanding or error can be found and which therefore this court should not override by any possibly different views of its own. 40 On the factual findings made by the trial judge the conclusion he arrived at was a sound one. 41 In my opinion the appeal should be dismissed with costs. 42 BARR AJA: I agree with Priestley JA. *********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.