Davis v Viglianti

The pleadings

1. The plaintiff pleads the assault claim as follows: 1. That the defendant engaged in conduct that constituted an intentional infliction of bodily harm using a trap or device. Alternatively it constituted in law a battery by use of a device being the insertion into Blu-Tack on the defendant's window sill of razorblades for the sole purpose of injuring a class of persons, namely police officers, which included the plaintiff, who were lured to the trap by the defendant's conduct, including leaving a cord hanging from the ceiling (paragraph 9 of the statement of claim). 2. In the alternative, that the defendant was recklessly indifferent as to the fact that by inserting or leaving inserted razorblades in the window sill the said razorblades could act as a device causing significant injury to any person who was seeking to gain access to the premises in the circumstances set out above.
2. The plaintiff's injuries are set out in the statement of particulars filed on 24 June 2016 and in a series of medical reports. No medical reports were tendered on behalf of the defendant.
3. The defendant denies paragraphs 5 and 6 of the statement of claim concerning the sending of a text message in breach of the apprehended violence order, although the defendant effectively admitted that he had breached the order in cross-examination. The defendant unhelpfully "denies in part" paragraphs 13 and 14 and elides the pleading of the assault and negligence claims in an unhelpful fashion. No attempt is made to formulate a defence by reference to any provisions of the Civil Liability Act 2002 (NSW).
4. In the course of the hearing the defendant raised the issue of whether the plaintiff was a trespasser, which I assume are intended to be conveyed by the statement that the police "had no reasonable grounds to enter the premises" (paragraph 6), although without identifying which of the plaintiff's alternative causes of action this claim was relevant to, or why.
5. In relation to the claim for negligence, the defendant pleads a claim of contributory negligence.

The plaintiff's evidence

1. The plaintiff was a probationary constable at the time of the incident (T 11), having been a police officer for approximately 6 months. He was the most junior person on a team which attended the defendant's home on the night in question.
2. At about 2.00 am he and his partner heard a radio broadcast, as did a number of other car crews, about the need for police officers to attend the defendant's address for the purpose of an arrest. As the plaintiff and his partner were only a couple of minutes away by car, they attended to see if assistance was required.
3. Another five police officers, including the plaintiff's partner, were at the scene. The mobile supervisor was Sergeant Poidevin. Constable Hardman explained to the plaintiff that the defendant was to be arrested and that there was some urgency by reason of communications the police had received, which suggested there could be concerns for the defendant's welfare, in light of statements he had made to his former girlfriend in communications in breach of a domestic violence order.
4. Police entered the apartment block and initially tried knocking loudly at the defendant's door, announcing that they were the police, but the door was not opened. The plaintiff listened at the defendant's door and heard what sounded like a voice and possibly a fan. He and the other police made the determination that the defendant was inside but refusing to open the door.
5. Looking up from the street before they entered the building, the plaintiff and other police had been able to a light on in the defendant's unit because the curtains or blinds were drawn. As a result of the light being on, they could see what appeared to be a rope or cord hanging from a timber beam in the ceiling. In light of the pre-existing concerns about the defendant's well-being, this immediately escalated the level of police concern as the reason for the rope or cord hanging from the ceiling had to be determined with some urgency.
6. The plaintiff described what happened next as follows: "Q. Was there anything else you could see when you looked up? A. So, just cause of the viewing angle, it was quite a steep angle, but we could see part of the roof and there was ‑ it looked like a timber beam was on the ceiling and it had what looked like a piece of cordage hanging from that, that beam. Q. Do you recall Sergeant Poidevin saying anything to you? A. So, Sergeant Poidevin said, "I'd really like to get a look through that window", and then he and some of the others disappeared. I stayed around the side of the house, just chatting away to some of the other police. I think there was still police inside at the front door as well that time. Shortly after he returned and he had a ladder, so sort of a ten foot ladder, an A‑frame style of ladder, and he set that ladder up and Sergeant Poidevin went up the ladder to try and look through the window. When he was at the top of the ladder he was particularly unsteady on his feet; he didn't look like he felt comfortable on the ladder at all, and he got sort of to the second top rung of the steps and just sort of ‑ you could see his legs were starting to shake a little bit. Q. If we just pause there. Did you have any concern for the defendant? A. So, when we saw the ‑ what looked like the cordage there had been some discussion that he had a drug issue or some mental health issues as well, and I think Sergeant Poidevin was the one that said he might have been attempting to hang himself, or self‑harm if he knew that we were trying to arrest him. So, once he got off the ladder he couldn't get up tall enough on the ladder to see through the window, he looked very unsteady, so I've said to him "come down, let me go up" I've worked as an electrician and part of those duties was working at heights and working on ladders, so I was quite comfortable being on very tall ladders to the temporal ladder didn't really phase me. So, I went up the ladder, it was still too short, where the window was compared to my eye levels I could only just see in, so I was actually on top of the ladder and I was standing up on my tiptoes and I had my hands on the ‑ to the window frame or the bricks surrounded the window. And the window was open a couple of inches, it was like an aluminium sliding window. So, I called out "it's the police, open the door"." (T 12 - 13)
7. The plaintiff was not intending to enter the premises through the window, but was standing on his tiptoes as he could only just see in. He needed to hold on to the window frame to steady himself. As the window was already some way open, he knew that it was unlocked, so he slid the open window pane a little further along. As he did not know the defendant's name he called down to ask what it was and, upon being given the defendant's name, he turned back to the window and called out: "Giancarlo, it's the police. Mate, you need to open the door."
8. As he did so, the plaintiff put his hand down on the window frame of the aluminium-surrounded window so that he could steady his position and felt immediate pain in his hand.
9. He described what happened next as follows: "I've pulled my hand away and clenched it into a fist and my hand was just on fire, like I felt really bad pain. And then I've looked to where I had placed my hand and then I saw along the window frame for the aluminium frame. There were a number of razorblades, sort of a wedge‑shaped razorblade, and there were three or four in a row and they were facing up and they were attached to the outside of that window frame. So I've turned down to Sergeant Poidevin and I've said, "I think I've cut myself. He's got razorblades up here", and Sergeant Poidevin told me to come down the ladder so I've done that. I've climbed down the ladder and he said, "Give me a look at your hand", and I still had my hand in a fist and as I've opened up my hand I could see a cut along the base of my three fingers. As I've opened my hand the wound has just opened up into like a V‑shape. It started bleeding profusely and I don't know if it was just panic at the time, but I felt I could see the bone. So I could see something white going, you know, the length of where my finger would be ‑ in that direction ‑ and I just assumed it was the bone so I've closed my hand up with my other hand because I wasn't able to properly move my fingers, and so I've held my hand closed and Sergeant Poidevin said, "Mate, you need to go straight to the hospital". I'm not sure who it was, one of the other police said, "We'll call him an ambulance," and what to get on the radio, and Sergeant Poidevin said no to my partner, "Put him straight in the car and under lights and sirens go straight to the hospital yourself"." (T 13 - 14)
10. In cross-examination, the plaintiff was asked what information he had about the nature of the offence and why the arrest was asserted to be so urgent. The plaintiff said that as the most junior member of the team (T 24), he heard what his superiors were saying. While there was talk of text messages and the breach of apprehended violence order, his concern was the cord hanging from the ceiling, about which he had a conversation with other police officers: "Q. You saw a reflection possibly of a light from another building going in but there was no light on in the premises was there? A. No there was a light on. Q. Now the rope that you say you saw you say can you describe that a bit better? A. I never said it was a rope necessarily. It looked like a rope of piece of cordage. Q. Piece of? A. Cordage. Q. Cordage okay. And you said it was hanging from the ceiling? A. Yes. Q. Can I go back to what the situation was on the ground, so can you just go through what Sergeant Poidevin said to you about the defendant, before you decided to get the ladder? A. I don't know if he was, so before we got the ladder, so not just Sergeant Poidevin and myself, but others were standing there. I've seen, and they've made comment about, this piece of rope or cordage, so it looked like a white ceiling and a piece of timber, and the cordage looked to be hanging from that timber. And someone made mention, I think it was Sergeant Poidevin, that he might have been attempting to self‑harm, because he knew police were there. Q. But you're standing there chatting away? A. Yes. So whilst other people were away, we were looking at the window, there wasn't a lot happening at the window, obviously, so I was just chatting to my partner about different things, perhaps about the job, I don't really recall. And then, as other police would come, and then walk way back inside. It was several minutes. Q. So there is no hurry at this stage. All you are looking to do is to rouse the defendant from his sleep so he can open the front door? A. Correct, and then Sergeant Poidevin, I think his words were, "I'd love to see inside that window, I think he might be trying to self‑harm". Now, whether he had more knowledge about the defendant, I don't know."
11. Before climbing up the ladder (which was taken from the defendant's garage), the plaintiff had tried to climb a fence to look in, without success: "Q. What happens after he says that, "I'd love to see inside the window"? A. So we kept trying to look. I think at one stage I tried to climb the little fence to see if that gave me a better viewing angle, it didn't. Q. So you're climbing the fence? A. Yes, I had a look at him‑‑ Q. Sergeant Poidevin is looking for a ladder? A. Well I didn't know he was looking for a ladder, but he and others walked around the front of the property and returned a few minutes later with a ladder. Q. Right, so there is a ladder. That is after the sergeant has said to you, "He might be trying to self‑harm"? A. I believe so. Q. So then the sergeant puts the ladder up against the wall, he starts climbing it, he looks rickety, so you called him down, and then you go up? A. Yes. Q. So there is no real emergency at this stage. If Mr Viglianti, the defendant, was trying to self‑harm, then there could have been valuable seconds wasted by the sergeant coming back down the ladder and you going up? A. Yes, potentially. Q. Because in your mind, all you're trying to do is get the defendant to open the front door? A. So at that time, I had no particular knowledge of his mental state. They had mentioned, the collective were talking, about potential self‑harm, and I was thinking, "Well, maybe he is", but I had nothing to make me believe that he was at the time. If I had seen, when I was at the top of the ladder, him attempting to self‑harm directly in front of me, obviously then it would have been the emergency speed call and we would have done everything to force entry into that unit." (T 27 - 28)
12. The plaintiff was firm in his statement that he was not proposing to enter the premises from the window (T 29). He was endeavouring to look into the window where the rope or cord was hanging from the ceiling, information about which would determine whether a more urgent response to the defendant's failure to open the door to police.
13. It was put to the plaintiff that it was "overkill" (T 29) to have so many police there, and that it was unnecessary to effect an arrest at 2.00am in relation to a domestic violence offence. The plaintiff's answer emphasised the dangers of domestic violence situations: "Q. I want to suggest to you that that might be quite intimidating to have eight or nine police officers attend in order to effect an arrest at 2.00am in the morning? A. No. It's a safety aspect. The more police that we have, the safer we are. Q. What grounds did you have for thinking that you might be unsafe by entering the premises? A. No, I never said it was by entering the premises. By virtue of arresting an offender, it's a confrontational activity as the nature of policing. Sometimes they are violent, sometimes they will run, and sometimes you need to use physical force to effect that arrest, especially in domestic violence situations and arresting someone at a house where there is access to knives and potentially weapons." (T 29)
14. He went on to add: "Q. So then what is the urgency to get into the premises to arrest him at 2.00am in the morning? A. I didn't have any particular knowledge of the case. The decision as to whether there was urgency or not was the decision of the OIC who was there and the other more senior police. I was assisting them in effecting that arrest." (T 30)
15. The plaintiff was also asked why, if he needed to see inside the defendant's window, he did not use a torch: "Q. When you were climbing the ladder, you didn't take a torch with you? A. At that stage, I owned a torch, so a small LED laser torch that I had on my belt, but it wasn't in my hand, I wasn't using it at that stage. Q. Did any of your colleagues shine a torch? A. Not that I recall. There was ample light coming from inside the unit." (T 32)
16. In re-examination the plaintiff explained how it was that he knew the window in question was the defendant's window: "Q. Mr Davis could you just clarify for the Court how you knew that the window that you went to was the defendant's window? A. So the window was initially pointed out to me by other police. But from my own sort of understanding of the building, where we were inside the building, where the window was on the outside spatially it just made sense that that would be the unit." (T 37)
17. He clarified the instructions he received in relation to climbing up to the window as follows: "Q. Could I just clarify what instructions you got, or why you were going to the window? A. It was to have a look at what the cordage was hanging from the ceiling, to clarify what that was, and also to raise him. The inference I made was that if I saw something at the end of the cordage like him attempting to self‑harm, that that would escalate our response. Q. Could you clarify whether you were directed to do that? A. No, I wasn't particularly directed to, but that was from when he was talking about seeing in the window, that's what I understood his intent to be. Q. Did Sergeant Poidevin give you any instructions? A. He just said to see what we could see inside, that was the word I got." (T 37) [Emphasis added]
18. He repeated that there was "a bright light from inside" (T 37), and that there was no ambient light outside the apartment building. He said the light in question could have been coming from the defendant's dining room (T 38).
19. He also clarified why he was concerned that the defendant was self-harming: "A. I thought it was possible, but I hadn't formed in my own mind a belief that he was attempting to harm. If we had, or if I had formed that belief, that would have escalated our response, but at that time it was an inkling. We thought it was possible, I thought it was possible, but I hadn't formed any opinion one way or the other." (T 38)
20. Counsel for the defendant submits that all of the above does not amount to the requisite state of mind and that there were no reasonable grounds to do so in any event, in that the light showing the hanging rope and the failure to answer the door, in the context of such a message sent more than three weeks previously, could not be reasonable.
21. As I have set out in more detail below, this submission arises from a misunderstanding of the plaintiff's evidence. The plaintiff's clear meaning was that he thought it was "possible" the defendant was trying to self-harm and that he proposed to climb up the ladder to see what was at the end of the rope. If he had seen that there was evidence of self-harm being likely to occur police would have "escalated our response" (T 37) by forced entry. The purpose of climbing the ladder was to determine if this response was necessary. Whether or not that was a reasonable belief is discussed in more detail below.
22. The plaintiff was clear about what he saw from the ground. He saw the rope hanging from the beam independently of any observation by any other police officer (T 33). He formed his views from his own observation, and these views were the reason for his offer to ascend the ladder to see better what was happening.
23. The plaintiff's superior officer, Sergeant Poidevin, shared the plaintiff's belief as to the likelihood the defendant could self-harm and that investigation of this by climbing up to the window was imperative.

The evidence of Sergeant Damian Poidevin

1. Sergeant Poidevin described his activities on the night as follows: "A. Yes, I was performing my duties as a police officer, I was the mobile supervisor for that shift. At that time, I had conversation with Constable Sing. As a result of that conversation, myself and a number of other police attended the defendant's address on Hammond Road at Homebush West. The other police included Constable Davis, Constable Fraser, Constable Singh, Constable De Silva, and Constable Hardman. At this time, we were there to arrest to him for an alleged breach of an AVO. I knocked on the front door of his unit, I knocked quite loudly, I knocked numerous times. I shouted out, "It's the police, open the door". I then observed a number of other police also attempting to do the same thing while at this time I was on a mobile phone ringing the number that was provided to me for the defendant, the mobile phone number, with no success. I then was shown a number of text messages by Constable Fraser. These were text messages that were alleged to have been sent from the defendant to the person named in the AVO, who the breach was alleged to have involved. The nature of these text messages caused me concern for the psychological state of the defendant, and I had concerns for his welfare as a result of that. I could also hear faint noises coming from inside the unit; they weren't audible, I couldn't tell you what they were, they weren't loud enough to make out. I knocked on some neighbours' doors to see if I could get any information from them, but I wasn't able to get a response from the neighbours. I then attended the garage of the defendant. I didn't locate anything of interest inside there. I then went to the back of the unit complex. I could see that a rear window of the defendant's premises was on the first floor, the interior light was on." ( T 40)
2. Sergeant Poidevin was clear in his assessment of the risk that he was, in the words of the plaintiff's counsel, "going to the unit to stop a suicide". He considered it was necessary to gain access to the unit through some means other than the front door and looked for other methods of entry. He observed an open window and explained how he knew it was the defendant's window, and how he obtained a ladder from the defendant's garage: "A. Because it corresponded with where the front door of the premises would have been; that window was in line with that, it would have been his unit. The interior light was on, there were vertical blinds that were completely drawn open, and there was a sliding window that was slightly ajar. I could also see from my vantage point inside the unit towards the roof, there was a beam, and over that beam there was a length of light coloured, or white coloured, like a cord material. I couldn't see what the end of that cord had affixed to it, but had concerns that perhaps the defendant may have self‑harmed, may have hung himself. At that point, I went into his garage, I obtained a ladder from inside." (T 41)
3. Sergeant Poidevin described the difficulties he had had getting up the defendant's ladder, which was wet and slippery. When the plaintiff told him that "in a past life" he had been a tradesman and was familiar with ladders, he was happy for the plaintiff to mount the ladder in his stead.
4. He then described how he observed the plaintiff's injury occur: "He confidently climbed up the ladder, he got all the way to the top, I saw him grab hold of the window sill, and then he immediately pulled his right hand down and he said, "I've cut myself". And then he came down the ladder, he opened his palm up and I could see that he had a significant wound to his right hand, I believe it was round where the index finger meets the palm of the hand. I couldn't tell how far the cut extended because it was bleeding quite heavily. When he was able to close it, formed like a fist, that significantly stopped the bleeding." (T 41)
5. Sergeant Poidevin returned to the scene a little while later where he spoke to police officers who had attended the defendant's father's home. He said he had good grounds to believe that the defendant was still inside the unit and that he continued to hold those views after the plaintiff's injury: "I had a conversation with those police, and they attended the defendant's father's address and re‑attended the scene a short time later. I had a conversation with those police, and as a result of that conversation and what they told me, I had good grounds to believe that the defendant was inside the unit. In my mind, he was either deliberately avoiding our attempts to raise him, or I believed he may have self‑harmed." (T 41)
6. In those circumstances, steps had to be taken to remove the razorblades so that entry through the window could be made. Other police who had come to the scene provided an extendable ladder from their vehicle, which was safer and more reliable than the ladder taken from the defendant's garage.
7. Acting Sergeant Ferrari, after climbing the police ladder, first removed the razorblades from the window sill and then dropped them below, following which he entered the defendant's bathroom through the window and was heard by Sergeant Poidevin to be calling out "Police. Don't move. Don't move."
8. The defendant then appeared in the lounge room and said "Yeah, what's the problem? I was asleep." He opened the front door and was then arrested and handcuffed. Sergeant Poidevin then had the following conversation with the defendant: "I then cautioned him again, I've told him who I was again, I said, "I'm Sergeant Poidevin from Auburn Police, can I ask you some questions, you don't have to say or do anything unless you want and anything you say or do can be recorded and used as evidence, do you understand?" He said, "Yes", and I said, "What can you tell me about the razorblades on your window that caused a serious injury to a police officer?" And he said, "razorblades", he said, "Oh, those are my flatmate put them up to stop my" to stop his ex‑girlfriend from breaking in, and he said it's his or hers own fault. And I said, "So you knew they were there?" And he said, "Yeah, they've been there for years"." (T 42)
9. In cross-examination it was put to Sergeant Poidevin that there was no urgency as the text message in question had been sent 23 days beforehand. He replied as follows: "A. Well, firstly in answer to that question, I don't know when the matter was reported; it may have been reported a week after the messages were sent, it may have been reported 10/15 days after that. And on top of that as well, it's not uncommon for people to not answer the door when the police come, and they know that they're looking to be arrested. So, it may very well have been the case that police had attempted to make an arrest before then, I don't know. Q. Do you say then that the defendant knew that you were coming on that night of the 28th? A. I don't know what the defendant knew or what he didn't know. Q. He sends the text message, from the Court attendance notice, on 5 June and then 23 days elapse between that date and his arrest? A. All I can tell you is that he was alleged to have committed an offence on 5 June, and I attended his premises on 28 June to make an arrest. I don't know if prior attempts had been made, I don't know when the matter had been reported to police, I don't know either of those two things. Q. So, what's the urgency to do it on this night? A. To do the arrest on that night? Q. Yes? A. It's the information that came to hand that this arrest needed to be made. Q. And needed to be made at 2am in the morning? A. Absolutely. Domestic violence offences, we don't like to leave the offender outstanding for any substantial period of time. Q. But you did, he sent a message‑‑ A. Excuse me, I personally did not‑‑ Q. He sent the message on 5 June‑‑ A. And the first, to my knowledge that this matter came to hand was on 28 June, which was the first that I'd heard of it. I don't know when it had been reported prior, but when it came to my knowledge that he needed to be arrested for a breach of AVO it needed to be done, and it needed to be done at 2.30am. Q. Sergeant, we have no information about what the police did between 5 June and 28 June? A. I could get it for you, but I don't have it on hand with me now, no." (T 45 - 46)
10. Sergeant Poidevin considered that in view of the amount of noise the police were making, the defendant's statement that he was asleep was unlikely to be accurate (T 46). He said in re-examination that, when they first knocked at the defendant's door, he could hear sounds coming from inside sufficient for him to consider that there was someone inside moving around, especially as there was an interior light on inside the unit. He was able to get a good view inside the unit because the vertical blinds were drawn all the way up.
11. Sergeant Poidevin was the officer in charge and the person who told the plaintiff what to do. It is clear, from his discussions with the plaintiff and the plaintiff's offer to climb the ladder in his place, that the plaintiff listened to and agreed with Sergeant Poidevin's concerns that further inquiry was necessary to determine if the plaintiff was about to self-harm. The fact that other police officers came to the same conclusions is of some (though limited) relevance in relation to the reasonableness of the plaintiff's beliefs as to the urgency and need for closer inquiry by climbing the ladder.

The defendant's admissions in the record of interview

1. The defendant was interviewed after his arrival at the police station. The text of that record of interview forms part of Exhibit A.
2. The defendant agreed that after he broke up with his girlfriend, who had been living upstairs but had moved into his home until April, he had become "a bit upset and I sent her a lot of messages" (Q41). He became upset seeing her because she lived in the same building. He said the message the subject of the breach of the order was "pretty much to say goodbye and I wish her all the best" (Q56), but "there's a lot more to it, it was a long message. I knew I shouldn't have sent that but I couldn't…" (Q57). He was shown a screenshot of his message and he agreed that as she was living upstairs, "I saw her often and it was actually very hard on me" (Q95). When asked (Q28) why he sent the message he said "I think it's because she was still living upstairs".
3. Detective Constable McGurk asked the defendant: "Q130 Did you understand at the time that you were committing an offence? A I did. Q131 That you were in breach of the apprehended violence order? A I did. Q132 Okay and well … A It's just so hard on me, and I just couldn't deal with it. I just had to, I don't, I know, I didn't want to, I didn't want to send it, and I just - I even was going, not to send it, but I just ended up sending it, and…"
4. He was asked about other persons who had lived in the property and he identified a person called "Luke" (Q142, Q166-171).
5. It was put to the defendant in the record of interview that police had concerns for his welfare because they "saw a light on in a room, they also saw a rope hanging from, um, the ceiling". The defendant replied "It's electrical cable, I haven't finished renovations". He also said "That window should've been closed" (Q199). He noted, however, "it's pretty easy to open, to be honest" (Q201).
6. He claimed that there had been a few people who had cause to "jump in", one of them being "my mate's ex-girlfriend" (Q206) and went on to give the following explanation: "Q208 O.K. So you put them there, did you? A Um, oh, I, Luke did. Um, and then I, I was about to put - - - Q209 I'll just, going back to this, it is in your best interests to be, uh, honest with me now, O.K.? You, taking you back just a couple of questions, you did say, um, you put them there, and then you've just reverted and said Luke put them there, so - - - A Yeah, Luke put them there initially. Q210 [10.06] Yep. A And then I took them off. Q211 Yep. A To find my actual window was open one day, so I put them back. Q212 Yep. A I only put a couple there, it's not the way it was before. Q213 O.K. And how did Luke have it there? A Um, well there was a whole row before. Q214 Yeah? How many would you say? A Uh, there was no chance of putting your hand anywhere without touching it. Q215 Roughly - - - A Uh, it was probably, yeah, that window's probably about, I don't know, twelve, fifteen, something like that? Q216 O.K. A I don't know. Q217 And how many did you put there? A There was only three. Q218 Three there? And when, um, when did you put them there? A Oh, it would've been the end of last year. Q219 You put them there end of last year? A Yeah. Q220 [10.07] O.K. And when did Luke put them there? A Um, October, November. As far as I remember - - - Q221 So, so you - - - A - - - between November, December is when Luke - - - Q222 Of last year? A Yeah. Q223 So October to November - - - A Mmm. Q223 - - - um, and then you took them down in November. A (NO AUDIBLE REPLY) Q224 I'm not putting words in your mouth, I'm just trying to - - - A Well, I took, I took, I took some, I took them off and left - - - Q225 Yep. A - - - a couple there, yeah. Q226 Oh, you took the remainder off, and just left a few there? A Yeah. Q227 O.K. And why did you leave them there? A Well, just like, it's so's if youse look over into it, you'll see it there. It's right at the very front of the ledge, so you can't put your hand there. Q228 I, I haven't, yeah, I haven't been in there yet, so, sorry. Just - - - A If you're actually climbing up, you see them, you can't actually put your hand down, you can't actually pick them off when the window's closed. So, I just left them there. Q229 Is it, um, inside the window? A I just, not that I actually expected anyone from that point on to actually jump through that window. No, it's on the outside of the window. Q230 [10.07] So it's on the outside of the window, is it? A Yeah. Q231 O.K. Um, mate, you, you, you're worried about people coming into your, your house, what was your intention of having those razorblades there? A It was the same thing as barbed wire, or the glass you get on the top of stone walls, it's just to say there's, like, warning. So it's not actually to intent any harm upon anyone, I didn't intend it that way either. Q232 Well, I tend to disagree with that, mate, when you work with tools. That's correct? A That's correct. Q233 Do you work with razorblades? A I do, with box cutters … Q234 Box cutters? Yeah. So you understand how sharp they are? A I do, I've cut myself many times. Yeah. Q235 Yeah. So you understand the severity of, of a cut from a, from a box cutter? A Yeah. Q236 Yeah? And you understand the damage that that could do to someone? Uh, particularly at night time, someone can't see the cutters? A Wasn't really like that. Q237 Is it, is it fair to say it's not just a warning, that it's - - - A It's just a - - - Q237 - - - that if someone was to try and put their hands down that it would - - - A I don't want to hurt anybody. It's just a silly thing I left there, and then I forgot about because I don't open that window. If I was meaning to hurt people, it'd be on every single window in my whole apartment. They'd be on my balcony rails, they'd be everywhere. Q238 Did it not cross your mind to, um, especially being in the trade that you're in, you know, roller shutters, and then obviously being aware of security measures, um, when you're in, in garage doors, did it not cross your mind to install, uh, an alternative? A wire, um, uh, security grille, or maybe a lock on the window? A I'm not allowed to with, um, strata. Q239 Strata? O.K. That's fair enough, but did you think to put a lock on the, on the window, or - - - A Well initially I - - - Q239 - - - or jam something so it couldn't, the window couldn't open? A I did, I used to have a timber, it should've been in there as well. Maybe I took it out the day before, I can't remember, but, I should, I've got a piece of timber that fits between the two windows - - - Q240 [10.09] Yep. A - - - in the lounge room. Q241 Yep. A That should've been in there. Q242 So if, if you've got that there, what's the necessity to have razorblades? A As I said, I forgot all about those blades being there, I didn't even know they were there. It's been that long and I've got so much going on in my life, it's just so not, not, the first thing I'd be thinking of is not, when I walk in I think, "Oh, those things are still on the window, I've got to take them off". Q243 Mmm. A It's not, it's not something I think about."
7. The defendant was given a piece of paper and drew where the razorblades had been placed with Blu-Tack (Q262). He was asked the following at Q264-266: "Q264 O.K. How were they, is that they were put, um, back in October, November? A Yes. Q265 Yep? O.K. And then what happened at the end of the year? A I just, I just took a few off, and just moved them. So I take off several and then I just put a couple there, left a couple. Q266 O.K. A They would've been spaced apart."

The charges laid against the defendant

1. The defendant was charged with the offences of: 1. contravene prohibitions/restrictions in AVO (domestic) (for which he was sentenced to a s 9 bond and 18 months' supervision by the New South Wales Probation Service); 2. permit trap to be set/placed with intention to inflict grievous bodily harm (for which he was sentenced to a period of imprisonment of seven months suspended upon his entering into a bond pursuant to s12 and to be subject to the supervision of the New South Wales Probation Service); 3. reckless grievous bodily harm, for which he received a sentence of the same length as (b) above.
2. The magistrate, in his judgment, described the razors as being "blades from a Stanley knife" that were "embedded in a substance and affixed to the bottom runners on the outside of the window" in such a way that "the base was hidden with only the blades protruding." The fact that these items were on the outside of the window, although of limited importance in the criminal proceedings, is significant for the facts of this case.
3. The magistrate was satisfied that the defendant's "own evidence was that he placed the items there sometime in late 2012 and he knew that they continued to be there", holding that "the inescapable conclusion is that the accused did knowingly permit the device to be placed and I so find." His Honour noted that the defendant told police the razors were just there as a warning and that he did not intend to harm anyone (ERISP Q 231 and Q237) but that "on the evidence" he was satisfied that the razorblades were placed and allowed to remain there "not for the purpose of protecting the property, but rather for the purpose of injuring any prospective intruder". The combined effect of the evidence was that the blades could not be seen by anyone on the ground and were not placed so as to be a visible deterrent to a trespasser. The primary intention was to injure anyone attempting to get through the window, which had been left partly open for this purpose.
4. The magistrate was satisfied from the evidence that the defendant had thought about the consequences of his actions and realised the possibility of actual harm. The defendant was accordingly convicted of both offences.
5. The defendant was already known to police as he had previously breached prohibition or restriction orders in an apprehended violence order. On 11 October 2012 he was fined $1,000 and given a section 9 bond for two years. He appears to have been called up for a breach of this offence in January 2014 resulting in a community service order of 100 hours. He was also fined $1,000 for using a carriage service to menace, harass or offend between April and May 2013.

The evidence of the defendant in this court

1. The defendant told the court he was in a very distressed state and sometimes cried all day following the break up with his girlfriend, who had simply moved out one day and gone to live upstairs: "Q. She took that AVO out in May 2013, that's right, and she lives at your block of apartments, doesn't she? A. She was living with me, and I broke up with her, and one day she decided to move to her friend's apartment above us in the level above."
2. The defendant's evidence was that the razorblades were "placed there by another gentleman that was there before just on one of the windows" (T 50). He acknowledged that this "gentleman" was someone who was living with him at the time but said that the only man he could remember was "Luke". He said that Luke had "made mention" of the razorblades "in passing" (T 51), but as that window was never opened "I didn't worry about it at all". The defendant denied that he put the razorblades in the window or that he knew he would be arrested and that the police might try to enter from that window (T 55).
3. He was asked about the razorblades and whether he had ever removed them, and he said "I took ones off one [sic], I can't really remember the full story, how it all went, but. [sic]" (T 58)
4. The defendant gave another explanation when, at T 58, Mr Symons asked: "Q. Mr Viglianti, are you sure you didn't put the razorblades on the window sill? A. Well at that time I was on drugs, so it was hard for me to say what I said or not." (T 58)
5. However, the defendant had given specific, detailed and responsive answers during the record of interview. When Mr Symons took the defendant to these specific statements, the defendant's response was to deny making them or to say he did not remember: "Q. Mr Viglianti, you told the police that you put the razorblades there, that's right, isn't it? A. Well, as far as I was aware I didn't say that at all, no. Q. That is what the transcript [of the Record of Interview] says? A. I know what's written there, but I don't remember saying that at all. Q. I put to you that you told the police that you put the razorblades there? A. Well, for one it says, "Three", there was only two and I said I left them there, I didn't put them there. Q. The transcript clearly says that you put the razorblades there? A. I know what the transcripts says, I can read it. I don't remember saying that at all. Q. You knew the razorblades were there, didn't you? A. I did know they were there, yes, that's correct." (T 61)
6. These answers are not to the defendant's credit. He finally agreed that he knew the razorblades were there (at T 62), but only at the end of these evasive and untruthful responses.
7. The defendant gave similar inconsistent responses in relation to other factual issues. He said that all of the lights in his premises were off (T 51) although the plaintiff and Sergeant Poidevin were not cross-examined about seeing lights on and seeing the rope over the beam as a result (a rope the defendant did not deny having placed there). He asserted that lighting from other buildings made the razorblades readily visible to the naked eye and that these could be seen as far away as "down the driveway" (T 68) while at the same time claiming the window had "always been closed" (T 69), including that night (T 68). I consider all these answers, which are inconsistent with the observations of the plaintiff and Sergeant Poidevin as well as with certain of the answers the defendant gave in the record of interview, to be untruthful.
8. The defendant's admissions in the ERISP and his evidence in the Magistrate's Court (as appearing from the judgment) are inconsistent with these denials. The defendant not only knew that the razorblades were on the window sill but, I am comfortably satisfied, put them there in the sense that, on his own admission, he rearranged the razorblades which had been put there by another person.
9. I am also comfortably satisfied that, since the defendant was living there alone, he left the bathroom window open even though it was the middle of winter, despite knowing that if an open bathroom window was visible from the street if he left the light on and the curtains drawn it was likely, if he did not answer the door when the police knocked, that an attempt would be made to contact him or to gain entry by the window.
10. However, leaving the bathroom window invitingly part open is not all that the defendant did. I am also comfortably satisfied that he left the light on and blinds drawn, and that the plaintiff's evidence that the dining room light was on is correct. The defendant's evidence that all of the lights in his premises were off (T 51) is untruthful. Police would not have been able to see into the windows of his home unit if the light had not been on.
11. The significance of the light being on is that as a result, the police were able to see the cord dangling from a beam in the ceiling, which I am satisfied was the real reason for the police deciding that they need to investigate further to see if the defendant was about to self-harm. This cord, which I am comfortably satisfied was allowed to remain there by the defendant for this purpose, was the key element in the trap the defendant set.

The evidence in relation to the cord dangling from the ceiling

1. Although it was a central part of the evidence of the plaintiff and Sergeant Poidevin that a rope or cord had been seen dangling from the ceiling, the defendant made no mention at all of this rope or cord in his examination in chief. This is a telling omission.
2. The plaintiff was not challenged about whether the rope was where he described, or visible from the street, although he was cross-examined about whether there was a light on: "Q. Now if we can just take a step back, how far were you away from the window sill and ‑ I'll withdraw. How far away were you from the window that you say you saw the rope in? A. So where the fence was we were basically on that fence line so a metre, metre and a half, 2 metres or whatever to the wall and then the vertical height from the ground up to that window. Q. How far? A. Four metres maybe in height. Q. So you direct the Sergeant down and you go up to the window. Now I want to suggest to you that there was no light on in the premises? A. There was a light on. Q. That the defendant was in bed asleep, it's 2am in the morning and he's in bed asleep. There was no light on was there? A. There was a light on. Q. You saw a reflection possibly of a light from another building going in but there was no light on in the premises was there? A. No there was a light on. Q. Now the rope that you say you saw you say can you describe that a bit better? A. I never said it was a rope necessarily. It looked like a rope of piece of cordage. Q. Piece of? A. Cordage. Q. Cordage okay. And you said it was hanging from the ceiling? A. Yes. Q. Can I go back to what the situation was on the ground, so can you just go through what Sergeant Poidevin said to you about the defendant, before you decided to get the ladder? A. I don't know if he was, so before we got the ladder, so not just Sergeant Poidevin and myself, but others were standing there. I've seen, and they've made comment about, this piece of rope or cordage, so it looked like a white ceiling and a piece of timber, and the cordage looked to be hanging from that timber. And someone made mention, I think it was Sergeant Poidevin, that he might have been attempting to self‑harm, because he knew police were there." (T 27) The defendant's explanation for prior admissions in the ERISP
3. The defendant gave a series of explanations for the admissions he made and their inconsistency with his evidence in this court.
4. On one occasion, he sought to evade answering on the basis that he was in a distressed state of mind on the whole of the day in question: "Q. If I can take you to the night that we're discussing, if I can ask you what were you doing that day? A. I couldn't tell you to be honest. I wasn't really in a state of mind to do anything so I was probably at home the whole day. Q. And what were you doing in the unit the whole day? A. Probably just watching TV or just crying or something. I can't remember to tell you the truth." (T 50)
5. On a number of occasions, he said he could not recall what he said or did, and on one occasion, where his inability to recall seemed implausible, declined to answer on the basis that he could not remember "the exact details": "Q. Did you ever say to the police that you put the razorblades on the window sill? A. I can't recall the exact details of that, so I can't tell you if I‑‑" (T 59)
6. When confronted with an admission, he claimed that if he had in fact said what was recorded, then he was "jumbling" his words due to fatigue: "Q. Mr Viglianti I suggest from question 265 that you put the razorblades there. You told the police that you put the razorblades there. That's right isn't it? A. I suggest that I would not have said that however I may have been jumbling my words with the sentence because I had just took off a few. Then it says just moved and then take off several then I put them, a couple there. Left a couple. Q. Effectively you put the razorblades on the window sill‑‑ A. It's really just a couple of sentences. Q. That's right isn't it? A. No it's incorrect. HER HONOUR: Look he's answered it but anyway. Yes? SIMONS [sic] Q. And you knew the razorblades were on the window sill? A. I knew they were there. I didn't put them there." (T 65)
7. Most of the time, however, the defendant simply denied what was put to him, or refused to answer: "Q. You knew the razorblades were Blu‑Tacked to the window sill, that's right isn't it? A. Yes. Q. And they were arranged such that they more or less covered the entire window sill. That's right isn't it? A. No that's incorrect. Q. You'd agree with me that somebody putting their hand there could not avoid the razorblades. That's correct isn't it? A. That's incorrect. Q. Just skip ‑ could you just give me one minute your Honour. And you deliberately arranged the razorblades so that somebody would cut themselves if they put their hand on the window sill that's right isn't it? A. I'm not the one who put them there. The arrangement was already there. Q. But you'd agree with me that the razorblades were arranged so that somebody putting their hand on the window sill would be cut by those razorblades. That's right isn't it? A. That's questionable. It depends on how you see it. You've got a window sill that wide with that much razorblade." (T 66)
8. The above examples are illustrations of the generally evasive and at times untruthful nature of the defendant's evidence. His demeanour in the witness box was that of a truculent witness who was doing his best to avoid answering questions.
9. The evidence of the defendant's prior inconsistent statements is not only relevant to whether he should be believed on his oath, but rationally affect the probability of the existence of the facts in issue in these proceedings. That evidence, if rejected, affects the assessment of the probability of the existence of the facts in dispute as asserted by the defendant.
10. I note and adopt the approach the court should take in relation to issues of credit, as explained in McGlen-McLeod v Galloway [2012] NSWCA 368 and in Ipp, D., "Problems with Fact-Finding", (2006) 80 Australian Law Journal 667.

Conclusions concerning the evidence of the defendant

1. I am comfortably satisfied that the defendant has not only lied on his oath in these proceedings, but that he was evasive in his statements in the course of the ERISP, doing his best to minimise his role in relation to the placement of the razorblades.
2. I do not accept the defendant's claim that he left the cord hanging from the ceiling rafter because he was carrying out some unspecified form of repairs or work in his home.
3. I am comfortably satisfied that the defendant deliberately placed a cord over a beam in the ceiling, deliberately left a room light on and curtains drawn so that this cord could be seen from the street. He also deliberately opened the bathroom window. He did these things in the hope that any person who observed the rope or cord dangling from the ceiling would be sufficiently alarmed to alert either family members and/or his former girlfriend (who was living upstairs) and/or the police. His plan was that any or all of these persons, if unable to persuade him to answer the door by knocking (which I am satisfied he heard and deliberately did not answer), would come to the window to try to contact him and, in so doing, suffer fright and injury. I am comfortably satisfied, pursuant to s 140 Evidence Act 1995 (NSW), that he left open a window that was normally shut for this purpose of causing injury.
4. I also see it as potentially relevant that a ladder was readily accessible in the defendant's garage but, as the availability of this ladder was not put to the defendant as part of the plan, I have not taken this into account.
5. In arriving at these findings, I take into account all of the evidence but particularly the following: 1. The consistency and reliability of the evidence of the plaintiff and Sergeant Poidevin; 2. The defendant's admissions in the ERISP record of interview; 3. The summary of his evidence relied upon by the Magistrate in the criminal proceedings; 4. The unsatisfactory and inconsistent nature of the defendant's explanation for his admissions in the ERISP, such as his statement that he was high on drugs, that he was exhausted and jumbling his words and/or denials that he said what is set out in the ERISP, which I am satisfied were not honest statements but, like much of the rest of his evidence, deliberate lies.
6. I am satisfied that the defendant is not a witness of credit. The inconsistencies in his evidence were coupled by his resentful and angry demeanour in the witness box. I am satisfied that in his anger and resentment at the end of his relationship with his former girlfriend, he sent the text in question and, when that did not have the desired response, he created the trap that lured the plaintiff to his window, in that the plaintiff and the police officers who accompanied him were concerned that the defendant could have self-harmed. I do not accept the defendant's denials in relation to the placement of the razorblades and I would not accept his evidence on any issue unless he was corroborated by a witness of credit.
7. An additional factual issue for determination (essentially in relation to the claim in tort) is whether the plaintiff's entry onto the premises was as an invitee or trespasser.

Were the police trespassers?

1. Although not pleaded in the defence beyond the statement that "the Police had no reasonable grounds to enter the premises", the defendant challenges the legality of the plaintiff's entry into his premises. No objection was taken to these submissions (cf State of New South Wales v Exton [2017] NSWCA 294).
2. Section 9 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ("LEPRA") provides: "9 POWER TO ENTER IN EMERGENCIES (1) A police officer may enter premises if the police officer believes on reasonable grounds that: (a) a breach of the peace is being or is likely to be committed and it is necessary to enter the premises immediately to end or prevent the breach of peace, or (b) a person has suffered significant physical injury or there is imminent danger of significant physical injury to a person and it is necessary to enter the premises immediately to prevent further significant physical injury or significant physical injury to a person. (2) A police officer who enters premises under this section is to remain on the premises only as long as is reasonably necessary in the circumstances."
3. The first issue is whether the plaintiff had formed the requisite belief. The plaintiff must hold such a belief himself, as opposed to relying upon the belief of his superior officers: State of New South Wales v Bouffler [2017] NSWCA 185. The second issue is whether that belief was open on reasonable grounds: State of New South Wales v Bouffler at [231] - [243].
4. The defendant submits that there was no urgency in the arrest, and places great weight on the description the plaintiff gave of police officers standing around "chatting away" while another officer retrieved a ladder. It is submitted that this indicated that the plaintiff was not in any way concerned with the defendant's state of mind or health or with Sergeant Poidevin's concern that the defendant may be self-harming. The method of entry initially tried, namely banging on the door, took time, which was indicative that the police had no need to enter the premises urgently. In particular, it is submitted that the text message the subject of the apparent breach was sent on 5 June 2013 and it is submitted there is a gap of 23 days "that the police were aware of the text message and did nothing" until suddenly it "all became very urgent" for unexplained reasons on the night in question (written submissions paragraph 22).
5. These submissions misstate the evidence. There is no evidence of the police being aware of the contents of the text message prior to the night in question. The question is when the message was given to police, not when it was sent to the defendant's former girlfriend.
6. The urgency was that, when they arrived at the premises, police could see a light on from one of the rooms in the defendant's flat, showing a rope dangling from the ceiling. That was what prompted the plaintiff's trip up the ladder, after his earlier attempt to stand on the fence to look in had failed. The plaintiff climbed up the ladder for the purpose of ascertaining whether there was the danger of self-harm, and not for the purpose of making an arrest.
7. The defendant had prior arrests for breaches of domestic violence orders and had sent a text message in breach of a current order which appeared to hint at the potential of self-harm, but the immediate concern was the existence of the rope, visible from the street because (as I have found) the defendant had left a light on. The plaintiff first tried to stand on a fence to look in and, when that did not enable him to see what was at the end of the rope, assisted Sergeant Poidevin climb the ladder; when Sergeant Poidevin had difficulty, the plaintiff climbed the ladder in his stead. The purpose was to see whether the defendant was self-harming, not to enter via the window to arrest him.
8. Police officers are regularly faced with the requirement of having to take some form of decision (and subsequent physical action) in circumstances of urgency or stress. In Woodley v Boyd [2001] NSWCA 35 at [37], Heydon JA described this decision-making process, in the context of making an arrest, as "the agony of the moment." The mere presence of the dangling rope, given the domestic violence context (whether recent or not), was sufficient reason for the plaintiff to have formed the concerns that he did and to have acted as he did. Did the plaintiff in fact enter the premises?
9. Counsel for the defendant did not identify how the plaintiff putting his hands on the window sill while he called out to the defendant amounted to entry of the premises. Did the plaintiff in fact "enter the premises" at all?
10. What the plaintiff did was to place his hands on the window sill outside the window while standing on his tiptoes so that he could check if the defendant had or was about to commit suicide, not enter the premises. The plaintiff was not challenged about his evidence that he did not intend to climb in.
11. As Mason J explains in Barker v R (1983) 47 ALR 1, the question of whether a person is a trespasser must be determined with care, frequently in accordance with the relevant statutory provisions, not by reference to their common law meaning. Nor should the concept of "trespasser" be determined in accordance with some generalised concept of entering without permission. Although it was not the subject of submissions, I consider that the defendant's entitlement to resist trespassers did not extend to property over which he had no ownership rights, such as the portion of the window sill outside the window.

Conclusions

1. Whether the plaintiff entered the premises or not, I am satisfied that the plaintiff, in ascending the ladder in the place of his superior (due to the danger of his superior falling), had a reasonable apprehension that the defendant could self-harm based on the very strong visual evidence before him, thus satisfying s 9(1), by reason of the prior conduct of the defendant.
2. Accordingly, for the purposes of the Civil Liability Act 2005 (NSW), the plaintiff was not a trespasser and the duty of care owed to him was that of an invitee to the premises. Counsel for the defendant never elaborated on the relevance of the plaintiff's status as a trespasser to the assault claim.
3. Before proceeding to the issues of law, I set out my consideration of the defendant's preliminary argument that the statement of claim should be dismissed because it "cannot be sustained" (written submissions paragraph 4).

The plaintiff's knowledge of the factual issues in the statement of claim

1. The defendant makes the submission (written submissions, paragraphs 4 and 5) that the pleading "cannot be sustained" because it "does not represent the evidence and facts as known by the plaintiff". It is asserted that there are "at least five issues that are not true and the plaintiff had no knowledge of" which "begs the question about the statement of claim and its basis for seeking damages". The facts the plaintiff had no knowledge of are asserted to be as follows: "5. The Plaintiff: a. had no knowledge of the relationship between Ms Bint and the Defendant (at [3]); b. had no knowledge of text messages between the two (at [4]); c. had no knowledge of the text of 5 June 2013 concerning the breach of AVO (at [5]); d. had no knowledge of the content of the text (at [6]); e. concluded that the Defendant observed a light was on and that the Defendant was going to harm himself, or could harm himself, with a cord handing from the ceiling (at [9]). f. obtained a ladder to the open window and rested his hands, when in fact the Plaintiff did not obtain the ladder, saying nothing of opening the window (at [10]); and g. eschewed knowledge of paragraphs [11] and [12] that allege the Defendant deliberately put the razorblades in, then sent the text message, then lured the Police to his unit and then lured them into using a ladder to enter via the window." (Defendant's written submissions, paragraph 5)
2. I was not taken to any authority to the effect that the statement of claim must only set out the plaintiff's knowledge of the case, as opposed to the facts and matters which are to be proved in the course of the hearing. However, the real difficulty the defendant faces in relation to this submission is that it is wrong, on the facts as I have found them, to say that the plaintiff did not have this knowledge.
3. The relevant portions of the statement of claim are as follows: "7. Following on from a report to police the plaintiff accompanied by a number of other officers attended the premises of the defendant on or about 2:30am. 8. At the premises attempts were made to raise the victim who would not respond. 9. The plaintiff observed that a light was on in the premises and also was able to able [sic] to observe a cord hanging from the ceiling and feared that the defendant had done something to harm himself or was going to attempt to harm himself. 10. Thereafter the plaintiff obtained a ladder and climbed up to a window to look in. As he did so the plaintiff rested his open hands on the window sill to steady himself and as he placed his hands on the window sill he came into contact with a series of razorblades that were set into the window sill using blu-tac severely cutting the plaintiff's hands requiring him to be immediately conveyed to Auburn Hospital where he underwent surgery."
4. The plaintiff's evidence was in accordance with these particulars, which were facts known to him personally. The additional particulars set out as to the text messages the defendant sent to his former girlfriend was within the knowledge of the police officers in charge of the operation and, in particular, Sergeant Poidevin, and were discussed in very general terms within the plaintiff's hearing as well as in conversation with him. It was not necessary for the plaintiff to know about the reasons for attending the premises beyond this information. He did not need to know the details of the relationship between the defendant and his former girlfriend, or what the message which had brought the police to the scene had said, beyond knowing of the concerns of the superior officers in charge of the operation that those texts had raised concerns with the police that the defendant could self-harm.
5. The purpose of pleadings is to set out the case the opponent has to meet, and not to summarise the evidence that the plaintiff (as opposed to other witnesses) may give. The defendant's submission that the statement of claim must be restricted to the evidence known to the plaintiff is without any basis in law.
6. In addition, this is an ill-considered submission coming from a defendant who raised issues at the hearing which were not raised in the defence, details of which I have set out elsewhere in this judgment.

The relevant principles of law for the claim for assault and battery

1. The plaintiff submits that the conduct of the defendant was intentional and done with intent to cause injury, meaning that the Civil Liability Act 2002 (NSW) does not apply: see s 3B(1)(a); BJ v Wilcox [2008] NSWSC 1332. There are similar provisions in Tasmania, Victoria and Western Australia (see Stickley, A., "The Importance of Intention", (2016) 13(7) CL 104), but the relevant principles are most helpfully discussed in Croucher v Cachia [2016] NSWCA 132.
2. The facts in this case were as follows. The opposing parties were neighbours with a history of prior ill will. Following dispute about the trimming of hedges, there was an exchange of words which included a threat of physical violence and an altercation resulting in one of the parties being injured by the other by the use of gardening shears. The trial judge described the conduct of the defendant as "reckless", and held that a battery had been committed in circumstances where the self-defence provision under the Act did not apply as the plaintiff's conduct had not been unlawful.
3. In assessing damages, the trial judge did not refer to s 3B(1)(a) of the Act. On appeal, Leeming JA explained: "116. Her Honour appears to have proceeded implicitly on the basis that the cause of action in battery is one which engages s 3B(1)(a) and therefore is not subject to the limitations of the Civil Liability Act. Section 3B(1)(a) would undoubtedly apply if there were a finding that Mr Croucher had intended to injure Mr Cachia, but on balance I consider that the better reading of the judgment is that her Honour found merely that he was recklessly indifferent to the prospect that opening and shutting the shears and thrusting them at Mr Cachia would cause injury."
4. However, the correct position was as follows: "117. It is far from clear that conduct which is reckless, even if it amounts to an "intentional tort" such as battery, engages s 3B(1)(a). It is perfectly clear that a battery which involves merely negligent conduct will not engage s 3B(1)(a). This is because, as noted above, s 3B(1)(a) looks to the nature of the conduct found to occur, rather than to the cause of action which has been pleaded."
5. In other words, the issue was not whether the defendant had committed battery, but whether there had been an intentional act done with the intent to cause injury or death.
6. Counsel for the plaintiff helpfully summarised the principles relevant to these proceedings as follows: 1. In relation to the tort of assault in Australia, the plaintiff is not required to prove anything in relation to intention (Croucher v Cachia at [23] per Leeming JA); 2. A defendant who directly causes physical contact with a plaintiff will commit assault/battery unless the defendant proves that the defendant was "utterly without fault". Effectively, where physical contact occurs, the onus lies on the defendant to prove that contact was not assault/battery (Croucher v Cachia at [21] per Leeming JA); 3. The tort of assault/battery can be committed where a defendant is reckless as to physically harming the plaintiff ((Croucher v Cachia at [88] per Leeming JA)); and 4. The subjective state of mind of the defendant may be inferred from circumstances other than the defendant's statement as to their perceptions ((Croucher v Cachia at [104] per Leeming JA)).
7. In Croucher v Cachia the focus was, as Associate Professor Stickley notes, on whether the appellant's conduct could be found to be reckless on the evidence, and the question of the application of the Civil Liability Act 2002 (NSW) to a reckless battery, left unresolved by the New South Wales Court of Appeal in Dean v Phung [2012] NSWCA 223 and White v Johnson (2015) 87 NSWLR 779, remains unresolved (see also New South Wales v Le [2017] NSWCA 290 at [24]-[26]). I was not addressed on these issues by the parties. While the simple answer would be to award the damages alternatively assessed by me under the Civil Liability Act 2002 (NSW), it is not appropriate for such issues to be determined in the absence of full and careful submissions.

Conclusions concerning the claim for assault and battery

1. The plaintiff's case could not be pleaded more clearly. What is asserted is that the defendant in fact set a trap by a series of acts, namely: 1. Leaving the window with the trap in it partially open while refusing to answer the door; 2. In circumstances where he had left a light on and a rope dangling from the ceiling, which was designed to attract concern as it could be seen from the front of the building and street.
2. The sight of a rope hanging from the ceiling would have been of concern for any member of the community, let alone the police. The likelihood was that police would respond to the combination of one or more of these events, in circumstances where any person concerned for the defendant's welfare and unable to get him to open his door would have been likely to try to access the flat through the window,
3. I did not receive submissions as to whether it was necessary to attribute a wish to injure the police. The target of the trap could just as easily have been someone else, such as the defendant's girlfriend, who was still living upstairs at the time of these events (T 56). I am satisfied that the defendant's plan was to injure any persons coming either to arrest him and/or to inquire as to his wellbeing when he did not answer the door, both of which categories apply to the plaintiff.
4. The findings of fact comfortably support a finding that the defendant set a trap intending to cause injury and the plaintiff's claim for assault and battery is accordingly made out.
5. The plaintiff's claim is principally framed as a claim for assault and battery but as negligence is also pleaded, I briefly set out my reasons for holding that the plaintiff would alternatively succeed in a claim for negligence.

The claim in negligence

1. On the basis that the defendant admitted he allowed the razorblades to remain on the window sill, the duty of care the defendant owes to an invitee would clearly be breached. The same would be the case even for a trespasser.
2. In Roads and Traffic Authority of New South Wales v Dederer (2007) 238 ALR 761 at 764 Gleeson CJ described methods of deterring entry by trespassers involving shards of glass or razor wire as "extreme": "There is no foundation in the evidence, or in common experience, for inferring that the only way to deter people from climbing and jumping would have been to adopt extreme and fanciful measures such as erecting a very high fence topped with shards of glass or razor wire."
3. In view of my findings concerning the defendant's lack of credibility, I do not accept his assertions that a former flatmate put the razorblades out to deter a girlfriend. It was difficult for the police to get in, even with a ladder; the plaintiff, a tall and fit man, had to stand on his tiptoes.
4. In terms of s 5B Civil Liability Act 2002 (NSW), the risk was foreseeable, and acknowledged by the defendant to be so in his answers to the ERISP. Any person opening the window, even from the inside (the razorblades being on the sill and within striking distance of the hand opening the window) for any reason risked injury, as the presence of razorblades on a window sill would be completely unexpected. That risk was high, not insignificant, and a reasonable person would have either removed the razorblades when the tenant who allegedly placed them there left or alternatively (since the defendant was the registered proprietor) prevented his tenant from putting them there in the first place. Removing some of them was hardly a satisfactory solution. The probability of injury was high given the nature of razorblades.
5. The burden lay on the defendant, either as the proprietor or as the strata owner with closest access to the window sill, to remove the harm, not only for the benefit of the plaintiff but for any person seeking to open or shut the window in the manner or normal usage. It is no answer to claim that the window was kept permanently shut because it could have been opened at any time by any person using the bathroom. The fact that the defendant claims he forgot about the razorblades only worsens the situation, since he clearly would have therefore been unable to warn the visitor using the bathroom not to open the window because there were razorblades along the sill.

Contributory negligence

1. The claim for contributory negligence is pleaded as failure to look for any hazards, failure to enter through the door, failure to find another place of entry and failure to conduct himself "so as not to expose himself to unnecessary risk". These grounds were largely abandoned in favour of unparticularised claims that the plaintiff should have used a torch and should not have gone up the ladder.
2. The plaintiff's evidence was that there was plenty of light from the dining room and his failure to hold a torch in one hand while he stood on tiptoe to see what was at the bottom of the rope hanging from the ceiling was wise in the circumstances, given the lack of stability of the ladder. He had to put his hands on the window sill to hold on, and that was how he was injured. He could not have been holding a torch at the same time.
3. No evidence of contributory negligence is made out.

Damages

1. The plaintiff provided a Schedule of Damages on 24 October 2017 for the assault and battery claim, which I reproduce containing counsel's notations: Item Amount Reference General damages 80,000 MacDougal v Mitchell [2015] NSWCA 389. See Tobias AJA particularly at [24] with Meagher JA at [1] and Bergin CJ in Eq at [2] concurring Aggravated damages 20,000 See case outline / submissions Exemplary damages 50,000 See case outline / submissions Past economic loss Army Reserve - 4 month off (after 28 June 2013) 1,110 See 14 June 2013 Army payslip Army Reserve - 3 months off (surgery October 2014) 2,670 Averaging Adam's 2014 Army payslips Electrician - 3 months off (surgery October 2014) 903 Per "electrical invoices" tab Medicare expenses to be repaid 222 Per Exhibit F Repayment of workers compensation 42,089 Section 151Z Workers Compensation Act Future economic loss Trigger finger surgery - 1 month rest 1,340 Per Adam Davis payslips (averaging recent electrician and Army Reserve payslips - I note counsel has also added "please check he can claims [sic] workers comp for his police job") Early retirement - 3 years lost from career 100,000 Per Dr Dias report at question 9, Zreika v State of NSW [2009] NSWCA 99 Ipp JA at [43] citing McClellan AJA in Penrith City Council v Parkes [2004] NSWCA 201 at [58]) - the plaintiff's income earning capacity has been unquestionably diminished, but the effect of this is difficult to quantify Past domestic assistance Personal care - 5 hrs/week $141.2 per week) from 28 June 2013 - 25 May 2017 28,856 Rehana Memon report at 5.2 Domestic assistance - 15 hrs/week ($475.12 per week) from 28 June 2013 - 25 May 2017 97,096 Rehana Memon report at 5.2 Future domestic assistance Domestic assistance - 3.5 hrs/week ($209.5 per week) for 5 years 54,470 Rehana Memon report at 5.5 and Dr Dias report at question 10 Medical equipment 670 Rehana Memon report at 5.1 Future out-of-pocket expenses Trigger finger surgey 4,000 Per Dr Dias report at question 7 Occupational therapy for trigger finger sugery (for 5 years) 10,000 Rehana Memon report at 5.4 and Dr Dias report at question 7 Medical equipment 670 Rehana Memon report at 5.1 3-6 months analgesia 250 Dr Dias report at question 11 General on-going pain treatment medication 250 Grand total 494,596

1. The plaintiff underwent emergency surgery very quickly, due to the fortuitous circumstance of a specialist hand surgeon being available at the hospital to which he was taken. He was absent not only from work as a police officer but from his Army Reserve duties and his work as an electrician. He was cross-examined only in the most desultory fashion about these.
2. The only submissions made for the defendant are that "a low amount of damages" should be awarded as the plaintiff "has not demonstrated a loss of income in the past, or a loss of income in the future". It is submitted that his work as an electrician was "unstable" and that his Army Reserve loss "should be discounted as the attendance is voluntary" (written submissions, paragraph 48).
3. This is all contradicted by the documentary evidence of the plaintiff. As to the Army Reserve service, economic loss awards have taken such service into account, in Zeppelin v Commonwealth of Australia [2002] NSWSC 228 and in Smith v Copper Refineries Pty Ltd (Supreme Court of Queensland, Cullinane J, 7 September 1994).
4. Only the most dismissive of submissions were made about general damages/non-economic loss, past and future home care and past and future out of pockets. As already noted, no medical evidence was served.
5. It is the invariable practice of this court to require all parties in personal injury proceedings to provide a schedule of damages. The defendant's refusal to provide the necessary schedule at the hearing or to address damages in the usual way in written submissions prevents an even-handed estimation of the issues in question. If the defendant disdains participation in this process, perhaps in the hope of raising these issues on appeal, that puts the trier of fact in a very difficult position.
6. The transcript is replete with examples of the plaintiff's minimisation of his pain and suffering, mitigation of loss and to return to the workforce with as little complaint and fuss as possible. Instead of dwelling on his pain and suffering he made light of his problems, endeavouring to find a positive aspect to his ongoing problems, and seeing his problems as an opportunity to adapt and change his work patterns and part-time Army activities.
7. That is not to say that he escaped the stress and upset of his condition, as well as his physical pain. The plaintiff explained the mental effect of these injuries upon his ability to work as a police officer: "Q. You said it slowed me down in my job, it made me more fearful, fearful of what? A. Fearful of injury. I used to be fearless, I've served in the army, I've served overseas on operations, and I was fearless. But this has really scared me, it's seeing the look in my children's eyes, it's slowed me down. As a result of the injury I was warned off doing any physical activity with my hand for fear of damaging the repair." (T 33)

The relevant heads of damages: assault and battery

1. In view of the defendant's non-participation in the assessment of damages process, I propose to accept the plaintiff's estimates, with the exception to the award of exemplary damages, which I reject.

The claim for exemplary damages

1. The carefully pleaded statement of claim seeks exemplary damages on the basis that the defendant's suspended custodial sentence "is insufficient to deter and punish the defendant and persons like him from ever engaging in this kind of conduct again" and seeks exemplary damages for that purpose (paragraph 28 of the statement of claim).
2. The entitlement of a plaintiff to exemplary damages where criminal proceedings have resulted in a conviction was considered by the High Court of Australia in Gray v Motor Accident Commission (1998) 158 ALR 485, where the majority judgment set out a consideration of the potential for "double punishment" (at [49] - [52]), defining the issues for the court considering such an award at [53] - [54]: "[53] Putting the question in these terms emphasises the importance of addressing the underlying question of principle. How are the civil courts to set about a task of punishing a defendant when the criminal courts have already done so? In particular, how is the civil court to assess the adequacy of the punishment inflicted as the result of a criminal prosecution? If the criminal process has taken its course, why should it be open to a plaintiff in a civil proceeding to contend that the punishment inflicted is inadequate? Is it enough (as the Ontario Law Reform Commission suggest) that the victim of a crime may bring forward at a civil trial matters that go to punishment but are not brought forward at a criminal trial? How does that proposition fit with provisions made for sentencing courts to consider victim impact statements? [54] No doubt, if the punishment inflicted by a criminal court is properly regarded as substantial (and a term of imprisonment would seem always to be so) no question of inadequacy should arise. But what if a financial or other non-custodial penalty is exacted? How is the adequacy of that penalty to be judged?" (Footnotes omitted)
3. No award for exemplary damages was made in Gray v Motor Accident Commission because the court was satisfied that "substantial punishment" (at [58]) had been imposed.
4. The defendant has been the subject of two good behaviour bonds and the subject of a suspended sentence. The imposition of only a non-custodial sentence is capable of amounting to a significant punishment. While the High Court in Gray v Motor Accident Commission (at [54] - [55]) left open the question of whether a suspended sentence was sufficient, noting the position in Canada, the New South Wales Court of Appeal, in Cheng v Ferjudi (2016) 93 NSWLR 95, referring to this line of authority, stated (at [104]) that it would be a most unusual case for an award to be made even in the circumstances of a non-custodial sentence: "[104] Given the circumstances of this case, the question is whether it was an unusual case in the sense raised in Gray. It will be recalled that the plurality stated in Gray: … it would be a most unusual case in which it was open to a civil to conclude that the outcome of those criminal proceedings did not take sufficient account of the need to punish the offender and deter others from like conduct."
5. Counsel for the plaintiff raises persuasive arguments as to why this should be an exceptional case. I accept his submission that the defendant has shown no contrition for his acts in these proceedings, and am satisfied that he has in fact lied to the court to minimise or avoid liability for his wrongdoing. I also note the plaintiff's submission that a mortgage "the validity of which is highly questionable" has been registered over the property of the defendant in an attempt to deprive the plaintiff of any award of damages (and which is currently the subject of a freezing order).
6. The defendant's dishonest evidence and lack of contrition are matters of concern. However, I am satisfied that the sentence imposed was substantial and that the circumstances of this case are not sufficient to amount to the exception of the "unusual" kind referred to by the High Court.

The net sum for damages

1. The total sum to be awarded is $444,596.
2. Interest would also be available but I was not addressed on this issue. I have granted liberty to apply in relation to both interest and costs.

Alternative damages findings for the claim for negligence

1. As I am satisfied that the plaintiff should succeed in his claim for assault and battery, I merely note that the plaintiff makes no claim for non-economic loss, aggravated or exemplary damages: "48. The Plaintiff's damages are to be assessed at large. The Plaintiff has had the total whole personal [sic] impairment in respect of all the injuries to his right hand assessed at 12%. The plaintiff is not therefore entitled to an award of general damages. 49. The Plaintiff is not entitled to an award of aggravated damages or exemplary damages when suing in the tort of negligence. 50. The Plaintiff maintains its [sic] claim for damages for having to reimburse Workers Compensation for monies they have paid or expended on him. The Plaintiff maintains his claim for past and future economic loss. The Plaintiff maintains its [sic] claim for past and future domestic care and personal assistance." (Plaintiff's written submissions dated 24 October 2017)
2. The same estimates for past and future economic loss and out of pocket expenses would apply.
3. Is the plaintiff below the threshold for domestic assistance? I was not addressed as to this issue. However, the injury to the plaintiff's right hand was of a particularly inconvenient nature, as he noted in his evidence: "A. For that four weeks I was pretty helpless. I'm right‑hand dominant so it was my dominant hand, and I'm not ambidextrous by any stretch. I can't write, I can't ‑ my left hand is pretty useless as far as fine motor coordination type stuff so I was completely dependent on my friends and my family ‑ and my wife was my fiancée at the time ‑ just to do all my everyday tasks. So from waking up in the morning, you know, I had to have my hand elevated in the bed for the injury so I was sleeping in a different position. I had, you know, blankets and pillows all around me so I wouldn't roll over on it. My wife would help me out of bed. I couldn't ‑ I couldn't shower myself, I couldn't have a bath or a shower by myself; I couldn't get myself in and soap myself up and have a bath by myself. I couldn't put toothpaste on my toothbrush by myself, couldn't shave, so I was really dependent on her to sort of help through all these activities. I couldn't prepare meals for myself. Like, I could some, like I could manage getting cereal out but I couldn't ‑ I couldn't cut up anything, I couldn't use a knife and fork at the same time and I couldn't do any of my ‑ sort of my regular duties, so stuff round the house. I couldn't care for our kids. We've got four kids; we're a blended family, so I've got a stepdaughter and I've got three kids to my previous marriage. So whenever they were around ‑ I have my kids every sort of second weekend and my stepdaughter lives with me obviously. During that period, like I couldn't ‑ I couldn't pick her up from school or take her to school. I couldn't get her lunches ready in the morning. I couldn't do ‑ taking out the garbage; I couldn't even take the garbage out and tie the garbage bag up. I couldn't even tie my own shoes. So I was really dependent on my wife to do nearly everything. It was really hard for her as well, and just watching her go through the pain of having to watch me and feeling so helpless. I've always been a competitive person so, you know, I don't like sitting on the sidelines but she had to do everything. I had to get my brother‑in‑law to come round and mow the lawns. There was a door that was creaking that was ‑ it was driving me nuts just because I was stuck at home and hearing this door creak, so he came round and oiled it up, but he ‑ he would wait till I went to my hand therapy class and then he'd come round because he knew that I'd hate him having to come round and do all the stuff. Except the lawns; he couldn't hide that because it took so long. Yeah, so I was ‑ during that four weeks I was completely dependent on people. Even had to call a work colleague to come and pick me up, take me out to buy a new pair of jeans which was really hard. She's a good friend, but I had to ask her to do up a button on the jeans while I was trying them on, so ‑ but, yeah, so that four weeks that was ‑ that was particularly tough. By the end of it, though, once I sort of started back at work and I started to get a little bit of use of my hand and the hand therapist was allowing me to take it out of the splint every now and then, things got a little bit easier. So I could start to do a little bit more for myself. I could, you know, do things around the house and play with my kids a little bit again. I just had to be careful about how I used my hand. But things like food prep and all the meals and things like that, the cleaning around the house, my wife had to keep doing, you know, the lion's share of that. And I could get myself dressed by about that stage, but there was some things ‑ like, I couldn't do up shoe laces, and that's pretty embarrassing for ‑ like, I'm 35 now. I was 31/32 at the time. Walking around the police station at work asking people to do up my shoe lace if my shoe lace came undone, it's pretty belittling."
4. This is compelling evidence of a man unable to perform simple tasks over a three-year period. As already noted, the plaintiff tended to minimise his difficulties rather than exaggerate them. I am satisfied by his evidence and by the comprehensive report of Rehana Memon that the plaintiff passes the threshold for past home care.
5. It seems uncertain whether the plaintiff would pass the threshold for future domestic assistance under the Civil Liability Act 2002 (NSW) unless the assistance were of a commercial paid nature. As a busy police officer in a blended family, the likelihood is that the plaintiff would use the gardening, cleaning and meal care services set out in Ms Memon's report and I would award future domestic assistance on that basis. I note there was no challenge to Ms Memon's report by the defendant.
6. Accordingly, in the event that the plaintiff's damages fall to be awarded under the Civil Liability Act 2002 (NSW), the only difference would be the sum for non-economic loss and aggravated damages.

Orders

1. I note that freezing orders made by me on the first day of the hearing should continue until further order, at least while costs and interest remain to be determined, but, to err on the side of caution, I have included an order to this effect.
2. The orders I make are accordingly as follows: 1. Judgment for the plaintiff for $444,596. 2. Defendant pay plaintiff's costs. 3. The asset freezing order made on 10 October 2017 (in relation to the plaintiff's notice of motion filed on 6 October 2017) continued until further order. 4. Liberty to restore in relation to interest, the asset freezing order currently in place and costs. 5. Exhibits retained for 28 days.

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. Decision last updated: 12 June 2019