Alan Matthew Smith v Brian Emerson [1986] ACTSC 36 (23 May 1986)

SUPREME COURT OF THE ACT

ALAN MATTHEW SMITH v. BRIAN EMERSON
S.C. No. 767 of 1984
Tort - Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Tort - assault - defence of volenti non fit injuria - defence of consent - whether defence of voluntary assumption of risk available.

Tort - assault - allegation of deliberate punches to jaw and face during Australian Rules match - defence of pushing within accepted rules of code.

Damages - whether aggravated or exemplary damages available.

Fleming Law of Torts 6th ed. p 73

McNamara v. Duncan 26 ALR 584 at p 588

Pallante v. Stadiums Pty. Limited (No.1) (1976) VR 331 at p 339-341

Hales v. Kerr (1908) 2 KB 601 at 605

Perry v. R [1982] HCA 75; 44 ALR 449 at 473

HEARING

CANBERRA
23:5:1986

ORDER

There will be judgment for the plaintiff in the sum of $10,414.69 plus interest of $1,500.

The defendant to pay the plaintiff's costs as agreed or taxed.

DECISION

This is an action for damages for assault. The plaintiff claims that he was assaulted on two occasions during an Australian Rules Football match being played at the Phillip Oval on 13 May 1984. The plaintiff was playing full back for the Ainslie team and the defendant was playing for the opposing Tuggeranong team. The first assault is alleged to have occurred during the second quarter of the match when the defendant punched the plaintiff on the jaw. The second assault is alleged to have occurred in the last quarter of the match when the defendant struck a blow to the right hand side of the plaintiff's face.

2. The defences are somewhat ambiguously pleaded and it may be convenient to isolate the issues for determination by reference in the first instance to the respective cases for the plaintiff and defendant as they emerge in the evidence.

3. As to the first alleged assault, the plaintiff contends that the defendant was playing in the full forward position so that he and the defendant were directly opposed to each other. The defendant gained possession of the ball. The plaintiff immediately tackled him, during the course of which tackle he unintentionally trod on the defendant's foot. The plaintiff alleges that the defendant then struck him a glancing blow with his right fist around the point of the jaw just under his left ear. Immediately thereafter a free kick was awarded to the Ainslie team by reason of the defendant holding the ball. The plaintiff took the free kick and continued playing.

4. The defendant's account in relation to this incident is simply that no such assault as that alleged occurred, but that the defendant did in the course of the tackle just described push the plaintiff when the plaintiff was on his foot.

5. The plaintiff alleges that the second assault occurred when the defendant had moved to another position and the plaintiff was attempting with outstretched arms to shepherd a team-mate who was trying to gain possession of the ball. He alleges that the defendant ran at him and struck him on the right side of the face, by reason of which he suffered a fractured jaw.

6. The defendant's contention as to the second assault is that in order to prevent the plaintiff from shepherding the Ainslie player, he ran at the plaintiff, pushing the plaintiff's extended right arm downwards and pushing the plaintiff's upper body away to the left.

7. It is common ground that if the defendant's account is accepted in either case, he was acting within the legitimate rules of the game.

8. The defence as pleaded in the amended defence which was further amended at the hearing does not distinguish between the first and second alleged assaults. The matters raised in the further amended defence are a denial of the assaults, a claim that "if (which is denied) there was any physical contact between the plaintiff and the defendant, then such physical contact arose in the normal course of the game and any injury suffered by the plaintiff as a result of such contact was purely accidental and unintended by the defendant" and a claim that "by virtue of his participation in the game the defendant (sic: presumably meaning the plaintiff) took the risk of injury by accidental striking or other striking in the course of the game by another player in the course of the game and the defendant says that any injuries suffered by the defendant were as a result of such accidental striking or other striking in the course of the game".

9. It is to be observed that none of the matters pleaded by way of defence unequivocally raises the defence of consent. The plea that the plaintiff undertook the risk of injury appears to be a plea of voluntary assumption of risk, which is appropriate in an action for negligence but which is not a matter which may be raised by way of defence to an intentional tort.

10. The defence of voluntary assumption of risk to an action for negligence is one application of the more general principle of volenti non fit injuria. The general principle is that no wrong is done to one who consents (see Fleming Law of Torts 6th ed. p 73). The principle when properly applied to an intentional tort requires a plea of consent and not of voluntary assumption of risk. I am prepared to take a liberal view of the matters pleaded by way of defence and interpret them to include a plea of volenti non fit injuria, that is to say, in answer to the claims for assault, a defence of consent. It has long been recognized as the law that participants in contact sports consent to acts of bodily interference which would otherwise constitute assaults so long as such acts are within the accepted rules of the sport concerned. To take an extreme example "a participant in a boxing match agrees to blows delivered in accordance with the rules, but does not sanction punches intentionally aimed below the belt or an attack with a knife": Fleming 3rd ed. p 84 citing American authority.

11. The law for the Australian Capital Territory on this subject was summarised by Fox J. in McNamara v. Duncan 26 ALR 584 at p 588:

"I do not think it can reasonably be held that the

plaintiff consented to receiving a blow such as he
received in the present case. It was contrary to
the rules and was deliberate. Forcible bodily
contact is of course part of Australian Rules
Football, as it is with some other codes of
football, but such contact finds justification in
the rules and usages of the game. Winfield (op
cit) says (at p 748) in relation to a non-prize
fight, "a boxer may consent to accidental fouls,
but not to deliberate ones". Street on Torts (4th
ed, p 75) deals with the presumed ambit of consent
in cases of accidental injury: "A footballer
consents to those tackles which the rules permit,
and, it is thought, to those tackles contravening
the rules where the rule infringed is framed to
maintain the skill of the game; but otherwise if
his opponent gouges out an eye or perhaps even
tackles against the rules and dangerously."
Prosser, Law of Torts (3rd ed, p 103) says: "One
who enters into a sport, game or contest may be
taken to consent to physical contacts consistent
with the understood rules of the game."

See also the judgment of McInerney J. in Pallante v. Stadiums Pty. Limited (No. 1)(1976) VR 331 at p 339-341.

12. In the present case, however, the defence of consent causes little difficulty because, as I have already indicated, the factual issues between the plaintiff are such that if the plaintiff's account is accepted, namely of deliberate blows with the fist to the jaw and face, then those acts constitute acts of violence which are "outside the rules of the sport in which the parties were participating". On the other hand, if the defendant's account is accepted, his actions were within the rules of the game and cannot be complained of as constituting acts of violence. I bear in mind at all times of course that the onus lies on the plaintiff to prove on the balance of probabilities his version of the events.

13. I turn now to the evidence. The plaintiff in addition to giving evidence himself, called two team-mates in order to substantiate his case. The defendant likewise gave evidence and he called five team-mates as well as two umpires. The umpires, however, were of little assistance in that the most they could say was that they observed no acts on the part of the defendant which were liable to penalties and that they would expect to have remembered any such incidents. However, I am of the view that it is quite possible for acts like those complained of to escape the attention of those who seek to referee or umpire fast-moving sports such as Australian Rules football.

14. I should say at the outset that I found the demeanour and presentation in the witness box of the plaintiff and his witnesses more impressive than that of the defendant and his witnesses. I say this being fully conscious of the dangers associated with assessing the credit of a witness by reference to demeanour and the impression given from the witness box. Those dangers are being subject to increasing scrutiny by academic writers and law reform bodies but in my view it is both impossible and inappropriate to seek to put such matters beyond consideration when attempting to decide disputed issues of fact. There are, furthermore, other aspects of the evidence in this case which lead me to accept the plaintiff's case as being more probable than that of the defendant.

15. During the course of the plaintiff's case I allowed over objection evidence which went to show that the defendant during the match in question struck a blow to the right side of the head of another member of the Ainslie team, Mr. Miller. This incident occurred in the final quarter some five to ten minutes before the second alleged assault on the plaintiff. In my view, it constituted evidence of facts so strikingly similar to the disputed facts which formed the gravamen of the plaintiff's complaints that it was probative of the central issue as to whether the defendant had committed the particular acts which the plaintiff alleged he had committed. The reception of similar fact evidence is not confined to criminal cases so long as care is exercised before it is admitted: Hales v. Kerr (1908) 2 KB 601 at 605. Similar fact evidence is admissible even if it relates to only one other occasion, provided that the similarity is sufficiently strong: Perry v. R [1982] HCA 75; 44 ALR 449 at p 473 per Brennan J. Whether the similar fact evidence is accepted or not and how far it is probative of the central issue are, however, different questions from that of admissibility.

16. The plaintiff's account in his evidence of how the assaults occurred has been sufficiently outlined above. In addition, Mr. Miller gave evidence that he was struck on the right side of the head near the eye and knocked to the ground by an unknown player in the last quarter of the match. Mr. Miller did not attempt to identify his assailant. He went on to give evidence that some five to ten minutes later he saw the plaintiff struck by the defendant with a clenched fist on the right side of the face over the right shoulder. He said that he saw this incident from the player's box some seventy to eighty metres from where the incident was observed to have occurred, and after he had retired to that position after being struck on the head. He said that he noticed the plaintiff go to the ground then get up and shortly after that was escorted off the field.

17. Mr. David Lalor, official runner to the Ainslie team and an Australian rules coach for approximately six years, gave evidence that he saw Mr. Miller struck a heavy blow to the head by the defendant. He said that he ran on to the field and found Mr. Miller dazed and that Mr. Miller came off the field and sat in the interchange. Later he saw the plaintiff in distress on the field and went out to attend to him. The plaintiff was on the ground complaining of pain to both sides of the upper jaw.

18. There were no inconsistencies of any substance in the evidence given by the plaintiff and his two witnesses. The two eye-witnesses moveover did not claim to see everything that supported the plaintiff's case. In particular Mr. Miller did not claim to identify his assailant and Mr. Lalor did not claim to see the plaintiff struck by the defendant. I realise, of course, that the two witnesses called by the plaintiff did not claim to see anything of the assault alleged to have occurred in the second quarter of the match.

19. The defendant's account as to the first alleged assault was that he simply pushed the plaintiff off his foot when the plaintiff landed on it. When he was asked directly, however, as to whether he had struck the plaintiff on the left side of the neck his answer was that he was not sure and that "maybe my hand has touched his neck". To support his account on the first of the two alleged assaults the defendant called a Mr. Rodney David Ferguson who said that he saw the plaintiff step onto the defendant's foot, upon which the defendant gave the plaintiff "a gentle push to the chest with his open hand". I found the evidence of Mr. Ferguson unimpressive.

20. The defendant's evidence as to the alleged incident involving Mr. Miller was that he was merely attempting to smother the ball by running straight at Mr. Miller and swinging his arms around in an attempt to get to the ball before he could get rid of it. Again, however, when the defendant was precisely asked as to whether he had struck the other player in the head with either of his hands, the defendant answered "No, not to my knowledge". In relation to the Miller incident the defendant called a Mr. Mario Charles Muscat, who was observing the match at a distance of about one hundred metres from where the incident occurred. He said that straight after Mr. Miller kicked the ball, the defendant "hit him with the shoulder and side". He saw Mr. Miller go down and trainers rush out to help him off "and he seemed to be very groggy". Mr. Muscat said that the event had been the talk of the club for the last two years and it had not left his mind in that time. Were there no other evidence in the case, I should think that I would find the evidence for the plaintiff and for the defendant on the Miller incident very evenly matched.

21. In relation to the alleged second assault on the plaintiff, the defendant sought to emphasise in his evidence that he had been moved from the position of full forward to centre half, so that he and the plaintiff were no longer directly opposed, and he did not know that the other player in the incident in question was in fact the plaintiff. The defendant said that "I made the movement to get him out of the road by running into his side with my body and dragging my, bringing my right arm across his body and pushing him sideways out of my road". The defendant said that having done that he chased after the ball and did not notice that anything had occurred in relation to the other player which required attention. He demonstrated that he brought his right hand down on the upper part of the other player's extended right arm and at the same time pushed with his left hand against the right side of the plaintiff underneath the armpit. This in itself seems to me an extraordinary manoeuvre. The defendant's account was not supported by the witnesses called on this aspect. Mr. Rene Tonna said that the defendant "busted the shepherd of Allan Smith" by pushing the right arm of the plaintiff down with his left arm. Mr. Tonna said that the defendant did nothing with his right arm, and further that the plaintiff did not fall down. Mr. Morris James Steele said that the defendant "swung his arms around as he was running through" and that the plaintiff's right arm "got thrown up". He also maintained that the plaintiff stumbled but did not fall. The evidence of Mr. Bryan Douglas Hartas did little to assist or damage the defendant's case. He said that he saw a clash between the two players but nothing unusual, that he did not have a very good view, that he was not concentrating and would not have seen a punch even if it had occurred. The equivocation of some of the answers given by the defendant and the conflict in the evidence in the defence case relating to the defendant's movements reflect adversely on the defendant's whole case.

22. Most important, however, is the evidence relating to the plaintiff's injury. The plaintiff said that his face was aching immediately after the alleged assault, that he went back to his position but within fifteen or twenty seconds the pain was so great that he left the field. None of that was challenged. He watched an adjoining game for about forty-five minutes but the pain became so bad that he took himself to the Royal Canberra Hospital. He was x-rayed at about 3.30 in the afternoon and spent the night in the hospital. He submitted to an operation on the Monday afternoon, his jaw was held together with wire for twenty-three days. The wire was removed under a further general anaesthetic. A report from Dr A.C. James admitted by consent states that the plaintiff sustained a fracture of the right angle of the mandible running through the root of the lower right eight tooth and that on 14 May 1984 under a general anaesthetic the fracture was immobilised with interdental eyelet wiring. The plaintiff was discharged on the following day and returned on 4 June 1984 when the interdental wires were removed under general anaesthetic. When last seen on 10 April 1985, the plaintiff stated that he had had no symptoms referable to the injury during the past six months. Dr James formed the view that the plaintiff's injury had healed with no continuing disability and no likelihood of further treatment being necessary. A report from a dental surgeon, Mr. Parragi, suggests that some dental work, although of a somewhat unspecific nature was carried out on the plaintiff following his injury, but no further dental treatment would be expected. The evidence from these two latter independent sources confirms that the plaintiff's account of how he sustained his injury to the jaw is correct. The defendant and his witnesses profer no explanation for that injury at all. I have little difficulty therefore in accepting that on the balance of probabilities the defendant committed the assault in the fourth quarter of the match as the plaintiff alleges and that leads me to the further conclusion that I should accept the plaintiff's account as to the assault in the second quarter. Accordingly there will be a verdict for the plaintiff on both counts.

23. Turning to the question of damages, it is quite apparent that the first assault caused no injury of any significance. As far as the second assault is concerned I have already referred to the general nature and effect of the injury itself. The plaintiff in his evidence tended to minimise the extent of the pain and disability. There was probably extreme pain and discomfort during the first few days, and although the plaintiff said that there was "not a great deal of physical discomfort" during the period of twenty-three days when his jaw was wired together, the situation must have been quite inconvenient to say the least. He could not eat and survived on liquids. He could hardly speak. He had to carry a pair of wire cutters in case of experiencing some obstruction in the throat which could become life-threatening. After the wire was removed it took about three weeks for him to start eating normally again. He experienced pain in the jaw occasionally when biting food. He had to visit a dentist not only for assessment but also to have his mouth and teeth properly cleaned. Out-of-pocket expenses are agreed at $2909.69. Although there is a claim for loss of earnings in the particulars filed, there was no evidence of any loss of earnings. The statement of claim included a claim for aggravated damages but counsel did not address on this aspect. Assuming that aggravated damages or exemplary damages or both are available to a plaintiff in an action for assault, I am not satisfied that the circumstances of the present case call for an award of damages of either nature. Although I have held that the actions of the defendant were assaults in the sense that they were outside the accepted rules of the game being played, I do not think that they went so far beyond acceptable conduct on the football field that they call for punishment or for some measure that would make the defendant an example to others. There is no evidence that the plaintiff suffered any sense of personal outrage or indignity. I am not satisfied that malice in any relevant sense had been shown on the part of the defendant. In all the circumstances I think that damages should be awarded to compensate the plaintiff and not to vindicate him. I award $5 damages for the first assault. I award $7,500 for general damages for the second assault together with the $2909.69 for out-of-pocket expenses, making a total of $10,414.69. There will be judgment for the plaintiff in the sum of $10,414.69 plus interest of $1,500. The defendant is to pay the plaintiff's costs as agreed or taxed.