12/23/2019 Downham v Bellette [1986] TASSC 34 (30 June 1986)

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Supreme Court of Tasmania
Downham v Bellette [ ] TASSC ( June )

Last Updated: January

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COURT: SUPREME COURT OF TASMANIA

CITATION: Downham v Bellette [ ] TASSC ;A /

PARTIES: DOWNHAM, Geoffrey

BELLETTE, Kenneth

BELLETTE, Royden

BELLETTE, Neil

FILE NO/S: /

DELIVERED ON: June

JUDGMENT OF: Underwood J

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Judgment Number: A /

Number of paragraphs:

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File No /

GEOFFREY DOWNHAM v KENNETH BELLETTE,

ROYDEN BELLETTE and NEIL BELLETTE

REASONS FOR JUDGMENT UNDERWOOD J

June

The plaintiff's claim is for damages for assault and false imprisonment. It arises out of an incident which
occurred in the early hours of the morning of the th May . The incident has its origins in a feud which has
persisted between the plaintiff and the first–named defendant and their families since . The first and second–
named defendants are brothers. The third–named defendant is a son of the second–named defendant. For many
years the parties to the action, their families and relatives lived on a number of small farms all located within a
kilometre or so of each other at Runnymede on the Tasman Highway. The plaintiff was aged at the time of the
incident and lived with his wife and children in a house built on a property formerly owned by his parents. Since
their death this property has been owned jointly by himself and his three brothers. Two of these brothers, Cedric
and Trevor, lived alone in another house on the same property. This property adjoined a small farm owned by the
first and second–named defendants. The first–named defendant lived on this property. Both properties have
frontages on the Tasman Highway. On the opposite side of the Tasman Highway and a short distance to the east
the second and third–named defendants lived on a property owned by the second defendant.
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In there was an altercation between the plaintiff and the first defendant when the plaintiff accused the first
defendant of having an affair with his wife. Thereafter there has been continual animosity between the members
of the Downham family and the members of the Bellette family. Between and many accusations of
damage to fences, release of livestock on to the highway and assaults were exchanged. It is unnecessary to
canvass these allegations.

On many occasions in the years before the incident which is the subject matter of these proceedings, tacks, glass
and nails were strewn on a roughly formed driveway approximately twenty six feet long which led from the edge
of the bitumen on the Tasman Highway to the gate at the entrance of the property occupied by Royden Bellette.
The defendants suspected the plaintiff had placed these objects on the driveway.

On several occasions, usually on a Sunday morning, during the months prior to the incident the first defendant
discovered deposits of human excrement on the driveway. Again, the defendants believed that the plaintiff was
responsible for these deposits. Sometime prior to Sunday th May there was a discussion between the
defendants about the excrement which had been left on the driveway. They agreed that a watch should be kept to
see if the offender could be detected and apprehended. However, no date or time for keeping this watch was
fixed. Sometime very shortly before Saturday th May the second and third defendants decided they would
watch the driveway that evening. The first defendant was informed of this decision on the Saturday morning by
another son of the second defendant. The second and third defendants did watch the driveway for about two
hours in the late evening of the th May but saw nothing untoward and returned home. From a distance the
first defendant saw the other two in the vicinity of the driveway but nothing was said between them. The second
and third defendants decided they would go back just before dawn. In the early hours of the following morning the
second and third defendants returned to the vicinity of the driveway and again kept watch. The first defendant
was in bed and did not know they were there.

About . am when it was still dark, the plaintiff left his home and walked along the Tasman Highway towards
the first defendant's driveway. He was carrying a . rifle and corn sack. He intended to go round some rabbit
traps he had laid on a property owned by his brothers and located on the other side of the Tasman Highway.
When he got to the first defendant's driveway he went along it towards the gate. Just then a car travelling west on
the highway approached, The plaintiff thereupon retraced his steps, crossed the road and stood on the other side
until the car had gone past. He then re–crossed the road and again walked up the short driveway towards the
gate. Part way along the driveway he stopped and put down his rifle and sack. He squatted and defecated in the
middle of the driveway. All of this was seen by the second and third defendants from a short distance away. I
reject the plaintiff's explanation for his conduct expressed in his own words as "being caught short". I find that it
was a deliberate act of provocation directed towards the first defendant and done to insult and annoy him. As the
plaintiff stood up and rearranged his clothing the second and third defendants walked along the road to accost
him.

There was a substantial dispute between the plaintiff and the second and third defendants as to what occurred
after the latter reached the plaintiff. It was common ground the plaintiff was assaulted by the second and third
defendants but it was claimed by them that such assault was lawful being in self–defence. The plaintiff said he
was unaware of the presence of anybody until he was struck a hard blow just behind his right ear. I reject the
claim of self–defence. Neither the second nor third defendants claimed self–defence when interviewed by the
police although they were given ample opportunity to do so. I find their explanations for failing to make such claim
unconvincing. On the other hand I do not accept the entire account given by the plaintiff in particular, his evidence
that the incident started when he was struck a blow behind his ear. I formed the impression that his evidence
contained many exaggerations and inaccuracies.

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At this stage it is necessary to make some general observations about the evidence given by all the parties to
the action. With the exception of the first defendant most of the evidence given by each of the parties was
unreliable and unsatisfactory and in the case of the second and third defendants, inconsistent. with statements
made to the police shortly after the incident. The accuracy of the accounts given by the plaintiff and the second
and third defendants was tarnished by the obvious animosity which exists between the parties.

With reference to his intellect the plaintiff was described by his counsel in opening as "a person not endowed
with the advantages enjoyed by most members of the community". I reject this assessment of the plaintiff's
intellectual abilities. I would adopt the description afforded him by Dr Graham Dick, psychiatrist, when he said:–

"At first glance I would have judged Geoffrey Downham to be below the normal limit of
intelligence. After the administration of a number of rough and ready tests, however, it
was perfectly obvious that he may lack education but that he is anything but
unintelligent and probably is above the normal rating and certainly would show as
such had he received better education."

I reached the conclusion that the plaintiff felt aggrieved by the conduct of the defendants, had held a grudge
against at least the first defendant for many years and was prepared to give a version of events which he
perceived would be most likely to result in a judgment in his favour. The first defendant's evidence was
substantially consistent with the statement he made to the police. He was prepared to make admissions against
his own interest. I formed the impression that he did his best to give an honest account of the relevant events.

There was some independent material in the form of photographs and medical evidence. My findings of fact
upon the issue of liability are based upon the statements made to the police by the three defendants, the
independent material, the evidence of the first defendant and so much of the evidence of the other parties as I
consider reliable.

Upon the balance of probabilities I find the following facts. When the second and third defendants were close
to the plaintiff the third defendant shone a torch on the plaintiff's excrement, and the plaintiff, then becoming
aware of their presence, picked up his rifle. Before he made any gesture with the rifle and without anything being
said it was forcibly taken from his hands by the third defendant. I find that neither the second nor third defendants
were at any time apprehensive that the plaintiff might have used his weapon to cause them harm. After taking the
rifle from the plaintiff the third defendant leant it against the gate. While he was doing this the second defendant
punched the plaintiff about the face and body and the two fell to the ground where a struggle ensued. The third
defendant came back from the gate and joined in the struggle by seizing the plaintiff by the legs. The third
defendant lifted the plaintiff's legs up so that only the upper part of his back remained on the ground and kneed
the plaintiff in the area of his ribs. In the course of this struggle the plaintiff suffered extensive scratches to his
face and body from briers growing next to the driveway and into which the combatants had fallen.

The assault aroused the first defendant's dogs and their barking woke him. He saw torchlight at the gateway,
got dressed and went down to find the plaintiff being held on his back by the second defendant. The first
defendant then knelt by the plaintiff, restrained him in the prone position by twisting his hand and fingers, and
tried to extract admissions from him with respect to the earlier findings of excrement on the driveway.

The defendants decided that the Sorell police should be fetched and accordingly the second defendant left the
scene to ask another son of his to drive to Sorell and bring the police back. This son set off to Sorell and the
second defendant returned to the scene. The second defendant then took a photograph of the plaintiff being
restrained by the first defendant and a photograph of the excrement on the driveway. The plaintiff was kept at the
scene until the second defendant's son returned after about one and a half hours to say that they were to let the

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plaintiff go and the Sorell police would be along later in the day. The plaintiff was thereupon released and went
straight to his brother's house. He was subsequently taken by them to the doctor at Richmond and then to the
police at Bellerive where he made a complaint of assault. Later that day all three defendants made statements to
police from Bellerive, the contents of which are consistent with the findings I have made.

Although the plaintiff's conduct was reprehensible it did not justify the assault and subsequent period of false
imprisonment. Such conduct may have constituted an offence contrary to the Police Offences Act (ss. and
) but the power to arrest for such an offence is confined to police officers in the circumstances prescribed by
s. of the Act. I hold that the plaintiff was the victim of an actionable assault, battery and false imprisonment.

It is now necessary to consider whether the torts were jointly or severally committed by each of the defendants.
In The Koursk ( )P , Bankes L.J. examined the nature of a joint tort. He rejected the concept of single
damnum as the test because different tortious acts might well result in the same damage. At p he adopted the
following passage from Clerk and Linsdell on Torts, th ed p :–

"Persons are said to be joint tortfeasors when their respective shares in the
commission of the tort are done in furtherance of a common design."

This statement appears in almost identical form in the th edition at paragraph . . Furtherance of a
common design as the basis of a joint tort received approval in Brooke v Bool ( ) KB at . See also,
Glanville Williams on Joint Torts and Contributory Negligence, p and Street The Law of Torts, th ed, p .

It is clear that at all material times the second and third defendants acted in furtherance of a common design
and are jointly and severally liable. However, I am not persuaded on the balance of probabilities that the first
defendant is jointly liable with the other two defendants for the battery. It is clear that the first defendant agreed
with the other two that at some time a watch should be kept so that the offender could be detected and
apprehended and he knew such a watch was being kept on the evening before the assault, but I am not satisfied
that the first defendant was a party to a common design to commit a battery of the nature which was in fact
committed. He was of course a principal in the tort of false imprisonment both by reason of common design
formed prior to the day of the assault and by active participation in the restraint of the plaintiff for the period of one
and a half hours.

In the assault[ ] by the second and third defendants the plaintiff sustained a fracture of the tenth and eleventh
ribs, bruises and abrasions to his head and back as well as scratches to a substantial part of his body. The
plaintiff also sustained a dislocated finger but I am unable to make a finding as to which of the defendants caused
the injury. It may have happened whilst the plaintiff was being restrained by the first defendant or at an earlier
time during the assault by the other two defendants. With one exception the physical injuries have healed without
residual sequelae. Since the assault the plaintiff has complained of a persistent pain in the right side of the loin
extending to the right side of the abdomen especially after heavy lifting or when tired. I accept Dr Cooper's
opinion that such pain is probably caused by an involvement of a nerve consequent upon the healing of the
fractured ribs. I find that such pain is minor and not disabling.

The plaintiff claims that by reason of the assault and false imprisonment, he has suffered psychological injury
with a resultant diminution in the quality of life and earning capacity. The plaintiff said that since the assault he
has suffered from nervousness and a loss of confidence which has made it almost impossible for him to do many
of the things he formerly did.

The plaintiff and his brothers said in evidence that before the accident the plaintiff assisted his brothers in
carrying out general farm duties as well as raising a small flock of sheep on his own account. In return for the
assistance given to his brothers the plaintiff was free to catch opossums, rabbits and other game on the family
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property and earn some income from the sale of meat and skins. The plaintiff said his income from all sources
was so low that he was not obliged to pay any income tax except for a small amount in one year. The plaintiff
claimed that the nervousness and loss of confidence he has suffered from since the assault prevents him driving
a car, shearing sheep or using a chain saw except to a very limited extent and has substantially reduced his
ability to earn money from the sale of opossum skins.

Dr Dick expressed the opinion that the plaintiff's complaint constituted a phobia caused by the torts committed
by the defendants in and was likely to be permanent. Dr Dick's opinion is entirely dependant upon the
veracity of the account of symptoms and history given him by the plaintiff.

Referring to the assault and false imprisonment, Dr Dick wrote in a report dated the th June that the
plaintiff told him:–

"He does not know the origin of this particular assault, nor could he describe any
particular reason for it, beyond saying that his wife knew that he would be present just
before daylight in the vicinity at the Bellettes' property. The imputation here being that
she had set him up for the Bellettes to give him a beating. Relationships with her had
been strained for a number of years due to the fact that during his absences in other
parts of the farm, or elsewhere, he alleged that she received visits from one of the
Bellette brothers who was something of a gay lothario."

That history given by the plaintiff to Dr Dick is not wholly truthful. The plaintiff full well knew the immediate
cause of the assault was his defecation in the defendant's driveway, but no mention of this was made to Dr Dick.

In the same report, speaking of an incident in when the second defendant discharged a firearm in the
vicinity of the plaintiff, Dr Dick wrote:–

"On a previous occasion, Royden Bellette was lurking behind a tree and fired a shot at
Geoffrey Downham which fortunately missed him. The objection at that time was
Downham's setting traps for possums in the vicinity of Bellettes' land and is a little
difficult to understand because he was not setting the traps directly on that land."

That statement by the plaintiff to Dr Dick is also not wholly truthful. The evidence given at trial made it clear
that the incident arose out of the plaintiff trapping and killing a pet cat owned by the second defendant's
daughter and the plaintiff well knew that the discharge of the shot was in the course of rage expressed by the
second defendant to the plaintiff about him killing this cat.

Again, in the same report, Dr Dick said:–

"As a result of his beating up, he received a number of injuries, the most notable of
which would appear to have been damage to his rib cage on the right side. Since
then, according to his own account, he has been terrified of a repetition or the
assaults. He claims that he is unable to drive a car outside his property or a tractor
outside (sic) his property ................. "

The evidence disclosed that on his parents' death the plaintiff and his siblings jointly inherited an old Vauxhall
motor car. As it aged and deteriorated his brothers bought their own vehicles with the result the old family car was
used only by the plaintiff. Approximately six months before the incident this car became unusable, the registration
expired and was not renewed. The plaintiff has never purchased a car to replace it. I am satisfied the reason for

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the plaintiff not driving a motor vehicle since the end of is because he has not had one to drive and not
because of any nervous condition.

In his evidence and in his account to Dr Dick the plaintiff claimed that since the assault in he has been
terrified there would be a repetition. I am not satisfied that the plaintiff is fearful that the defendants or any of them
might assault him again. During the one and a half hours the plaintiff was restrained to await the arrival of the
Sorell police, the defendants gave him a hat to keep his head warm and made preparations to light a fire so he
would not get too cold. There is no evidence that since any of the defendants have made any threat to
assault the plaintiff and no basis exists for the claimed fear of repetition of the assault which it must be
remembered was provoked by the plaintiff's deliberate act of defecating on the driveway.

The plaintiff claimed that as a result of his nervous condition and the pain in his loin his ability to earn income
from the sale of opossum skins has been much reduced. Up until the plaintiff earned some income by
snaring opossums and selling the skins. At the end of it became unlawful to snare opossums. A licence
could be obtained to kill opossums by shooting them if they were a nuisance to property but only during the
months of July and August in each year. The plaintiff said that initially he did not understand he was entitled to
obtain such a licence and accordingly during , and he earned no income from the sale of opossum
skins. What he and his wife and five children lived on during those years is a mystery not explored by any cross–
examination. According to the plaintiff as a result of information he received he decided to apply for a permit for
the season and he estimated that he could have obtained fifteen hundred saleable skins in that season. The
plaintiff claimed that the injuries he received in May prevented him from shooting any opossums that year. I
accept that during the opossum season the plaintiff's injuries would have been disabling to some degree and
although there is no evidence that he in fact obtained a licence for that year, he is entitled to receive a modest
sum for diminution of earning capacity during that period.

In the years that followed the plaintiff earned some income from the sale of opossum skins but alleged his
disability was responsible for a substantial reduction of income from this source. The plaintiff gave an elaborate
account of how his injuries both physical and psychological, restricted the number of opossums he was able to
shoot and successfully skin. I reject the whole of this evidence as being fanciful, conjectural and a completely
improbable account.

I formed the clear impression that the plaintiff's claim of fear of the defendants and consequential phobia was
false, and put forward with a view to inflating any award of damages.

In addition to the claim for damages for diminution of earning capacity, the plaintiff claims damages for:–

Medical and hospital expenses.

Services in accordance with the principles laid down in Griffiths v Kerkemeyer,
ALJR p .

Pain, suffering and loss of the amenities of life.

Aggravated damages for indignity, disgrace and humiliation occasioned by the

trespass to his person.

The plaintiff's own conduct is relevant to a claim for aggravated damages. In Fontin v Katapodis and Ors.
( ) CLR p at p , Owen J said:–

"In a proper case the damages recoverable are not limited to compensation for the
loss sustained but may include exemplary or punitive damages as, for example,
where the defendant has acted in a high–handed fashion or with malice. But the rule
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by which the defendant in an action in which exemplary damages are recoverable is

entitled to show the plaintiff's own conduct was responsible for the commission of the
tortious act and to use this fact to mitigate damages has no application to damages
awarded by way of compensation."

In recognising the relevance of the plaintiff's own conduct his Honour referred to "exemplary or punitive
damages" but I understand the expression in that case to embrace aggravated damages and not to be confined
to exemplary damages in the strict sense.

Until Rookes v Barnard [ ] UKHL ; [ ] AC , there was no real distinction between exemplary and
aggravated damages; a distinction which Windeyer J in Uren v John Fairfax & Sons Pty. Ltd. [ ] HCA ;
( ) CLR at suspected was one of words rather than ideas. In Lane v Holloway [ ] EWCA Civ ;
( ) QB Denning MR referred to Fontin v Katapodis when considering the quantum of damages for an
assault which was precipitated by the provocative conduct of the plaintiff. At p he said:–

"The defendant has done a civil wrong and should pay compensation for the physical
damage done by it. Provocation by the plaintiff can properly be used to take away any
element of aggravation. But not to reduce the real damages."

Applying that principle to this case I find the plaintiff is disentitled from recovering aggravated damages by reason
of his provocative and insulting conduct. His act of defecating in the first defendant's driveway was calculated to
annoy the defendants and members of their families who used that driveway and was the immediate and
precipitating cause of the assault and false imprisonment.

With respect to the false imprisonment, the plaintiff is entitled to recover a small award. In this assessment. I
include a sum for the restraint applied to his thumb and fingers by the first defendant. In the circumstances, the
insult to the plaintiff's feelings and dignity was minimal and the period of detention relatively short. I assess
damages under this head against all three defendants in the sum of $ .

The special damages all relate to medical expenses for treatment given for the injuries sustained. The
evidence to support this claim consisted of a bundle of medical accounts and some receipts. The documents are
difficult to reconcile but doing the best I can with the material submitted I allow $ for special damages.

Immediately after the incident the plaintiff resided with his two brothers. He remained with them for three
months before returning to his wife and family. He said that initially his injuries were such that he was entirely
dependant upon his brothers for nursing care and to take him to visit medical practitioners. He also said he went
to his brothers and remained with them for three months because he feared for his safety and by inference, his
wife was in league with the defendants and would not afford him any protection from a repetition of the assault. I
find that although the second and third defendants' tort created an initial need for services by way of nursing care
and visits to medical practitioners it did not create a need for services to protect the plaintiff from apprehended
further assaults and such nursing services were required for a period of a few weeks only. Upon this aspect of the
plaintiff's claim, I assess the damages in the sum of $ .

Taking into account the nature and extent of the plaintiff's injuries and the fact that he has made a full recovery
subject only to the minor but permanent disability of intermittent pain in the right loin, I assess his general
damages in the sum of $ , . Included in this figure is a modest amount for the diminution of earning capacity
during the period immediately following the assault.

In result there will be judgment for the plaintiff against the first, second and third defendants in the sum of $
and against the second and third defendants in the sum of $ , .

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"asssault" in paper copy[ ]

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