UNDERHILL v SHERWELL [1997] NSWCA 325

UNDERHILL v SHERWELL [1997] NSWCA 325

The defence of self defence failed as the respondent did not discharge the onus of proving that the force used was reasonable; the nature of the appellant's injuries indicated excessive force. The appellant was entitled to assessment of damages including loss of opportunity for employment.

Parties
Appellant: Underhill; Respondent: Sherwell
Jurisdiction
Australia
Judgment Date
18 December 1997
Procedural Posture
Appeal / Judgment on Appeal
Outcome
Appeal allowed
Legal Topics
Trespass to Person, Civil Assault, Self Defence, Damages for Loss of Chance, Onus of Proof, Excessive Force
Torts Trespass to Person Civil Assault Self Defence Damages for Loss of Chance Onus of Proof Excessive Force

Case Brief

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Parties

Underhill

Appellant

Sherwell

Respondent

Procedural Posture

Appeal / Judgment on Appeal

Legal Issues

  1. 1 Whether the respondent's act constituted reasonable self defence or excessive force
  2. 2 Whether the onus was on the appellant to prove excessive force or on the respondent to prove reasonableness of force used
  3. 3 Whether the appellant is entitled to damages for loss of chance of employment

Ratio Decidendi

The defence of self defence failed as the respondent did not discharge the onus of proving that the force used was reasonable; the nature of the appellant's injuries indicated excessive force. The appellant was entitled to assessment of damages including loss of opportunity for employment.

Court Disposition

Appeal allowed

Orders

  • Appeal allowed with costs.
  • Respondent to have a certificate under the Suitors Fund Act 1951 (NSW), if so entitled.