Drew Cuthbertson v State of New South Wales; Daniel Fletcher v State of New South Wales

Vo v Tran [2016] NSWSC 1043 New South Wales v Smith [2017] NSWCA 194 Re Tetbury Pty Ltd [2017] NSWSC 37 Wentworth v Rogers (2006) 66 NSWLR 474; [2006] NSWCA 145 Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221; [1987] HCA 5 Lumbers v W Cook Builders Pty Ltd (in liq) (2008) 232 CLR 635; [2008] HCA 27 Adeels Palace Pty Ltd v Moubarek (2009) 239 CLR 420 Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 [2014] HCA 36; (2014) 254 CLR 185 Griffiths v Kerkemeyer (1977) 139 CLR 161; [1977] HCA 45 Amaca Pty Ltd v Booth (2011) 246 CLR 36; [2011] HCA 53 Hamod v State of New South Wales [2011] NSWCA 375 Van Gervan v Fenton (1992) 175 CLR 327; [1992] HCA 54 State of New South Wales v Koumdjiev (2005) 63 NSWLR 353; [2005] NSWCA 247 MBP (SA) Pty Ltd (1991) 171 CLR 657; [1991] HCA 3 Category: Principal judgment Parties: Drew Cuthbertson (Plaintiff) Daniel Fletcher (Plaintiff) The State of New South Wales (Defendant) Representation: Counsel: Mr D. Toomey SC with Mr D. Morgan (Plaintiffs) Ms K. Williams SC with Mr A. Williams (Defendant)

Solicitors: Mr Matthew Garling (Plaintiffs) Ms Nouhad Khoury (Defendant) File Number(s): 2015/00108800 and 2015/00135825 Publication restriction: None

Preliminaries

1. After midnight on 8 September 2013, two young adult males Drew Cuthbertson and Daniel Fletcher were travelling in a train with friends between Central Railway Station and their homes on the Central Coast following a birthday celebration at Kings Cross. Senior Constables Walker and McArthur, in the course of Transport Police duties, observed Mr Fletcher consuming alcohol and swearing in the lower compartment of a carriage, in consequence of which actions they directed him to leave the train and accompanied him to the vestibule to wait for the train to arrive at Eastwood Station. Mr Cuthbertson accompanied Mr Fletcher to the vestibule. Senior Constable McArthur says that he was assaulted by Mr Cuthbertson whilst in the vestibule. In the vestibule of the train and subsequently on Eastwood Station platform SC McArthur voiced arrest of Mr Cuthbertson. Mr Cuthbertson was charged with the offences of assault and of resist an officer while in the execution of his duty pursuant to section 58 Crimes Act 1900, NSW. Mr Cuthbertson was ultimately found not guilty.
2. In the vestibule of the train and on the Eastwood railway station platform Messrs Cuthbertson and Fletcher and Senior Constables McArthur and Walker engaged in a transaction of confrontation both oral and physical. In these proceedings Messrs Cuthbertson and Fletcher proceed civilly against the State of New South Wales claiming damages for trespass to a person, assault and battery, wrongful imprisonment, and, in the case of Mr Fletcher only, personal injury damages. Mr Cuthbertson claims damages compensating him for the legal costs of his successful defence of the "resist" charge.
3. The State of New South Wales concedes that it is vicariously liable for any tortious action by the Senior Constables but defends the actions saying that the Senior Constables were acting within their powers and functions as police officers.
4. The hearing occupied 12 days including oral submissions. The parties submitted in excess of 220 pages of written submissions.

The Contest

1. The hearing proceeded on the basis of Mr Cuthbertson's and Mr Fletcher's proceedings being heard together, the evidence in each being evidence in the other.
2. By his Statement of Claim filed 7 May 2015, Mr Fletcher sues for assault and trespass to person ("assault" allegations) occurring when he was removed from the train. He alleges being grabbed by SC Walker on the arm and in the region of his left chest and shoved off the train and onto the platform (at [6]).
3. Mr Fletcher (at [7]) describes continuing assault allegations occurring on Eastwood platform by SC Walker in the form of grabbing, pulling, holding, pulling Mr Fletcher's hand up behind his back, throwing and flinging Mr Fletcher to the ground, and by SC Walker forcibly placing his body weight on Mr Fletcher whilst Mr Fletcher was on the ground.
4. Mr Fletcher claims personal injury damages compensating him for a fracture to his right distal ulna (right forearm fracture) suffered during his struggle with SC Walker on the platform.
5. Mr Fletcher pleads that if SC Walker's touching of him was lawful; then, because the force was excessive and unnecessary, it was nevertheless assault.
6. Mr Fletcher claims that he was wrongfully imprisoned whilst upon the platform of Eastwood Station (mis-described in [11] as "Eastwood Police Station") being detained against his will and deprived of his liberty. Whereas in his Statement of Claim the period of imprisonment is stated at 15 minutes, in plaintiff closing submissions it was refined to 8 minutes.
7. Particulars to [13] of his Statement of Claim describe the imprisonment as when he was grabbed, held and assaulted by SC Walker "and/or" for the period during which he remained seated on the platform as he was directed to do by SC Walker.
8. In addition to pleading denial of trespass, assault and wrongful imprisonment, the defendant, in answer to the whole of Mr Fletcher's Statement of Claim, pleads that SC Walker performed according to his statutory powers and duties as follows: 1. by using reasonable force pursuant to s 230 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) employed to prevent a breach of the peace (at [13]); 2. in direction of Mr Fletcher to leave the train pursuant to cl 55 (1) of the Passenger Transport Regulation 2007 (at [13A]); 3. in removal of Mr Fletcher from the train pursuant to cl 55 (5) of the Passenger Transport Regulation 2007; and 4. in accordance with acting in good faith pursuant to s 6 of the Police Act 1990.

Approach - Law

1. That the plaintiff plead that SC McArthur and SC Walker used excessive and unnecessary force and that the defendant pleads that SC McArthur and SC Walker exercised reasonable force, whilst acting in good faith pursuant to police statutory powers and functions; requires that the evidence of the transaction of events between the plaintiffs and the police including the physical engagement in that course be analysed with inclusion of consideration of the perspective states of mind possessed and reasonably available to SC McArthur and SC Walker in the taking of such action as it is ultimately found they did do: State of New South Wales v Randall [2017] NSWCA 88; State of New South Wales v Bouffler [2017] NSWCA 185.
2. There is not, nor could there properly be, dispute between the parties that physical touching and restraint from liberty by SC Walker and SC McArthur would be tortious unless permitted within their common law and statutory powers or in self-defence. The burden of establishing the elements of the defence falls upon the State: State of New South Wales v Randall [2017] NSWCA 88, per Basten JA at [15].
3. The defendant was not permitted to go beyond the particulars of its defence given in its letter of further and better particulars 28 March 2011 (Exhibit B), and therefore was not permitted in relation to Mr Fletcher's case against SC Walker to assert that his action was to quell a criminal assault upon Ms Erin Spence by Mr Fletcher. This does not exclude the defence of taking action to avoid a breach of the peace: s230 LEPRA.
4. The defendant letter of further and better particulars dated 28 March 2011 (Exhibit B) made plain that the defence to Mr Fletcher's case was that police responded reasonably in the scenario of belligerent conduct shown in the CCTV footage. At an early point in the hearing I indicated that I understood the use of "belligerent" in the defendant's letter of particulars to mean behaviour in the style of aggression, violence and conflict-like.

CCTV Footage

1. When opening its case, the plaintiff played the whole of the 8 passages of CCTV footage within Exhibit A. The case was conducted by both parties on the basis that the CCTV footage was the most complete and most accurate evidence of events. The CCTV footage included the whole transaction between the Senior Constables and the plaintiffs recorded by cameras showing activity on the lower deck of the carriage, in the vestibule to the carriage and on the Eastwood Station platform. Not surprisingly, after the passage of 3.5 years since the subject events occurred, all witnesses had refreshed their memory from pre-hearing viewing of the CCTV footage. During the hearing, all witnesses were referred to the CCTV footage when giving oral evidence. My observation was that all witnesses, when giving oral evidence, relied on the CCTV footage as the most accurate record of what occurred. The CCTV footage is silent and therefore evidence of what was said, was contained only in the oral evidence.
2. It is open to the Court to arrive at observations of movement and action of each of the Senior Constables and of Messrs Fletcher and Cuthbertson from the CCTV footage (Exhibit A). That CCTV evidence shows events without the subjective assessment and exercise of judgement and thought of the participants of the events, at the time depicted: Blacktown City Council v Hocking [2008] NSWCA 144 per Spiegelman CJ at [4]. This is particularly so in this case because of the following factors: 1. the perceptions of each of Messrs Cuthbertson and Fletcher must have been somewhat affected by their being under the influence of alcohol; 2. the weakening of individual recollections of witnesses over the 3.5 years between the incident and the trial (acknowledging that there was an intervening criminal proceedings in 2014); 3. each witness gave evidence strongly influenced by refreshment of memory by reviewing the CCTV footage in preparation for and during the trial; and 4. the hearing proceeded on the agreed basis that the whole of the CCTV footage be shown to the Court, and admitted into evidence without objection, and was referred to by the defendant in its letter of 28 March 2017 by way of provision of further and better particulars.
3. In Blacktown City Council v Hocking at [7], Spiegelman CJ said "It is not entirely clear in what circumstances photographs can be used as direct evidence, as distinct from explicating evidence otherwise given"; and at [13], the Chief Justice preferred the statement of Young J in Beaton v McDivitt (1985) 13 NSWLR 134 at 142-143, that it is available to the Court to treat "photographs as evidence and not merely as material to understand the evidence".

Lawful Action by Police

1. The plaintiffs' allegations must be considered in context. Review in the Courtroom is conducted in a leisurely atmosphere with time for contemplation of action which was not available to the Senior Constables on 8 September 2013. Any fair review must be free of unreal, retrospective criticisms of what an arresting constable might or might not have done or believed in the circumstances: Macintosh v Webster (1980) 43 FLR 112 at 123; Woodley v Boyd [2001] NSWCA 35 at [37] per Heydon JA, Davies and Foster AJJA agreeing.
2. In Carter v Walker (2010) 32 VR 1 the Victorian Court of Appeal observed at [142] (citations omitted): "Police officers are bound to prevent breaches of the peace that they reasonably apprehend. In order to prevent a breach of the peace, police officers are entitled to exercise reasonable force. In evaluating the reasonableness of police conduct, 'the matter must be judged by reference to the pressure of events and the agony of the moment, not by reference to hindsight'. Further, a police officer may use such force, not disproportionate to the object, as he believes on reasonable grounds to be necessary to effect, or assist in effecting, the lawful arrest of a person committing, or suspected of committing, an offence."
3. Police may not act arbitrarily, capriciously, or manifestly unreasonably in the agony of the moment. The point is, however, that it is the policemen's perception in the environment in which action is taken which is the subject of inquiry. It is not for the Court, with a sophisticated opportunity assisted by representations of counsel and complaints given in oral evidence by witnesses, all having over extensive time formed opinions of events; to apply an unreal measure of what was reasonable on the basis of the suspicions and belief of the policemen in the moments of the events: NSW v Randall [2017] NSWCA 68 at [22], [28], [39] to [40], [64] and [101].
4. Only events up to the time of each subject police officer's action are relevant to the inquiry concerning that action.
5. In order for arrest of a person without a warrant to be lawful pursuant to s 99 (2) LEPRA, the arresting police officer must hold a suspicion based on reasonable grounds that the person has committed an offence.
6. Pursuant to s 99 (3) LEPRA, a police officer must not arrest without a warrant unless the police officer holds a suspicion, based on reasonable grounds, that it is necessary to arrest the person (in this case) to ensure the appearance of the person before a Court in respect to the offence (s 99 (3) (a) LEPRA), or to prevent a repetition or continuation of the offence or the commission of another offence (s 99 (3) (b)): State of New South Wales v Hunt (2014) 85 NSWLR 226; [2014] NSWCA 47 at [26]; Hyder v The Commonwealth (2012) 217 A Crim R 571; [2012] NSWCA 336 at [15] to [18] and [90]; Director of Public Prosecutions (NSW) v Mathews-Hunter [2014] NSWCA 843 at [54].

The Defendant's Onus

1. The parties agreed that the defendant bore the onus of proof that the arrest, touching, and detention of each of Messrs Fletcher and Cuthbertson was lawful: Zavarinos v State of New South Wales [2004] NSWCA 320 at [12].
2. The relevant statutory provisions upon which the defendant relies, as at the date of the events, provided as follows: Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) 99 Power of police officers to arrest without warrant (1) A police officer may, without a warrant, arrest a person if: (a) the person is in the act of committing an offence under any Act or statutory instrument, or (b) the person has just committed any such offence, or (c) the person has committed a serious indictable offence for which the person has not been tried. (2) A police officer may, without a warrant, arrest a person if the police officer suspects on reasonable grounds that the person has committed an offence under any Act or statutory instrument. (3) A police officer must not arrest a person for the purpose of taking proceedings for an offence against the person unless the police officer suspects on reasonable grounds that it is necessary to arrest the person to achieve one or more of the following purposes: (a) to ensure the appearance of the person before a court in respect of the offence, (b) to prevent a repetition or continuation of the offence or the commission of another offence, (c) …, (d) …, (e) …, (f) … (4) A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law 230 Use of force generally by police officers It is lawful for a police officer exercising a function under this Act or any other Act or law in relation to an individual or a thing, and anyone helping the police officer, to use such force as is reasonably necessary to exercise the function 231 Use of force in making an arrest A police officer or other person who exercises a power to arrest another person may use such force as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest. Police Act 1990 6 Mission and functions of NSW Police Force (1) The mission of the NSW Police Force is to work with the community to reduce violence, crime and fear. (2) The NSW Police Force has the following functions: (a) to provide police services for New South Wales, (b) to exercise any other function conferred on it by or under this or any other Act, (c) to do anything necessary for, or incidental to, the exercise of its functions. (3) In this section "police services" includes: (a) services by way of prevention and detection of crime, and (b) the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way, and (c) the provision of essential services in emergencies, and (d) any other service prescribed by the regulations. (4) A reference in this section to the functions of the NSW Police Force includes a reference to the functions of members of the NSW Police Force. (5) … (6) Nothing in this section confers on the NSW Police Force a power to provide a police service in a way that is inconsistent with any provisions applicable to police officers under the LEPRA. Passenger Transport Regulation 2007 (provided in Preliminaries) Civil Liability Act 2002 - Self-Defence at Common Law 52 (1) A person does not incur a liability to which this Part applies arising from any conduct of the person carried out in self-defence, but only if the conduct to which the person was responding: (a) was unlawful, or (b) … (2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary: (a) to defend himself or herself or another person, or (b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or (c) …, or (d) …, and the conduct is a reasonable response in the circumstances as or she perceives them. (3) …

Reliability of Witnesses

1. The testimony of the witnesses in Court provided competing interpretations of the played CCTV evidence, Exhibit A. The case was conducted on this basis in that both parties required the whole of the CCTV footage to be shown at the start of the hearing. Each of the witnesses had refreshed their memory from viewing the CCTV footage before giving their oral evidence in circumstances where the events preceded the hearing by 3.5 years, albeit there had been criminal proceedings in 2014. Not infrequently when required to comment on events shown in the CCTV footage, witnesses had to be asked whether they were merely interpreting the film or giving evidence of an actual recollection following refreshment of memory from the film. At no time did a witness give evidence that the CCTV footage was not accurate or did not accurately show an event about which they gave evidence. Of course, the CCTV footage was silent and therefore provided no record of evidence of speech.

Mr Fletcher as a Witness

1. Mr Fletcher's poor memory was a striking feature of his presentation as a witness. The extent of his inability to recall events was not restricted to the events of the subject incident, 3.5 years in the past. He was unable to recall with reliable accuracy much more recent events. He knew that he had consulted orthopaedic specialist, Dr Ellis, on referral by his solicitor, on one occasion. He was unsure as to whether that occasion was in 2015 or in 2017: Transcript Day 2, page 107, lines 26 to 42. In fact, he consulted Dr Ellis in 2015. He could not recall what was said during the consultation. Dr Ellis was the only medico-legal doctor he attended for the purposes of the case, and plainly the consultation post-dated the subject events by 2 years. Mr Fletcher's inability to recall whether he had consulted Dr Ellis only a few months or 1.5 years before the hearing was striking, but not out of keeping with his general inability of recall.
2. Mr Fletcher could not recall being treated at the Emergency Department of Gosford Hospital for a fracture of his 5th metacarpal resulting from him having punched a wall in March 2009. When referred to the clinical notes of that treatment, he accepted that he had punched the wall, but still had no recall of those events. Despite the obvious importance to him of the CCTV footage for his refreshment of memory, he was unable to recall whether or not he had viewed the CCTV footage prior to the listing for hearing of the matter in October 2016 (which hearing was vacated because the video could not be shown in the courtroom), only six months before this subject hearing: Transcript Day 3, page 140, line 1 to page 141, line 17.
3. Whilst Mr Fletcher's claim for damages is in great part for his claimed on-going impairment of use of his right wrist consequent of it being fractured in his struglle with SC Walker, he described the mechanism of injury in October 2015 to Dr Ellis as: "… was in the process of being arrested, both hands and wrists were behind his back and behind his neck, and he experienced pain in both, particularly the right side." (bold added); whereas the CCTV footage plainly shows that Mr Fletcher's wrists were never held behind his neck. His recollection of perhaps the most central facts of his case was inaccurate when speaking to Dr Ellis only 2 years after the events.
4. In his case on damages relating to impairment for work, whereas in evidence in chief he said that he did not recall returning to work before removal of the plaster from his right wrist on 14 October 2013 (Transcript Day 1, page 42, lines 15 to 42); on being shown records of his employer during cross-examination, he agreed that he returned to work on 16 September 2013, only one week after the injury. When giving evidence in chief concerning a back injury suffered on 21 February 2017, only 2 months before the hearing, Mr Fletcher was unable to give a precise answer as to how long he had off work. The best that he could do was "about 3 or 4 weeks after" the injury he returned to "just a lot of light duties": Transcript Day 1, page 53, line 30 to page 54, line 7.

Mr Cuthbertson as a Witness

1. Mr Cuthbertson candidly conceded that he had difficulty recalling the events both because of the passage of time and because he was under the influence of alcohol at the time of the subject events: Transcript Day 6, page 310, lines 5 to 37.
2. Mr Cuthbertson gave evidence of his recollection of conversation in the following terms: [Transcript Day 5, page 280, lines 11 to 26] Q. Is it fair to say that you don't have a very good recollection now of words spoken in the carriage of the train on the evening of 8 September 2013? A. I do recall some significant words that were said. But not all. Q. You don't have a recollection, do you, of the precise words used by Senior Constable Walker when Mr Fletcher was given the fine for drinking on the train? A. No, I don't recall. Q. Do you recall that Mr Fletcher provided some identification to Senior Constable Walker, while he was still seated in the carriage on the train? A. I don't recall him doing so. But I imagine he would have. Q. And Senior Constable Walker told Mr Fletcher, didn't he, that he'd be getting an infringement notice in the mail, or words to that effect? A. Yes, I can imagine that, yep.
3. Mr Cuthbertson's use of "significant" in regard to his belief in his recall is to be weighed in the affectation of accuracy of human recollection over the passage of time before giving evidence (allowing for the intervening criminal proceedings in 2014), the effect of the influence of alcohol under which he was functioning at the time of the events, and his tendency in evidence, as I closely observed him, to be reconstructing from a diminished memory. I was concerned that he gave evidence with a commitment to a narrative, as he over 3.5 years has consciously or subconsciously constructed it. Mr Cuthbertson was shown to exaggerate in his description of force used by SC McArthur against him. I will accord caution to acceptance of his evidence where it is inconsistent with other evidence.
4. The following passage shows weakness of recollection, answering that he did not recall matters which would be against the interests of his and Mr Fletcher's cases and, again, a concession of agreement with use of "imagine" when the question fitted his narrative. I set out the transcript at Day 5, page 281, lines 1 to 49: Q. How can you say, sitting here today, that Mr Fletcher didn't say the word "fuck" when speaking to Senior Constable Walker, just after Senior Constable Walker had told him he'd be getting an infringement notice? A. Because I recall that me and Daniel were in the conversation, not Daniel and Mr McArthur. Q. I put to you that in addition to Mr Fletcher swearing in his conversation with you, he was also swearing and saying the word "fuck" in his conversation with Senior Constable Walker? A. No, I don't recall that at all. Q. I suggest to you that when Mr Fletcher was saying the word "fuck", he was doing so in a loud voice? A. No. Having a conversation, like I said, me and him were in general conversation, and they were there giving him the ticket. Q. What's a general conversation, Mr Cuthbertson? A. Something that you have with your friend. Talking about something, an event. General conversation. Q. What was your general conversation with Mr Fletcher about, just after Senior Constable Walker had told him that he'd be getting a fine for drinking? A. I don't remember the conversation, what it was about. Q. You don't really remember, do you, that you were having a general conversation, as you call it, at all? A. I do remember having a conversation with him, yes. Q. You said in your evidence‑in‑chief that Mr Fletcher was asked by the officers to stop swearing, several times, do you recall giving evidence to that effect? A. Yes. Q. It was Senior Constable Walker who asked him several times to stop swearing, wasn't it? A. I don't recall who it was. Q. In addition to that, Senior Constable McArthur said to Mr Fletcher, words to the effect of, "Mate, keep the language down", didn't he? A. I'm not too sure. Q. Senior Constable Walker told Mr Fletcher that he could also get a fine for swearing, didn't he? A. I don't remember that. Q. I suggest to you that after Senior Constable Walker told Mr Fletcher that, Mr Fletcher continued to swear, and use the word "fuck"? A. I imagine he did, because he did get escorted off the train for swearing.

Senior Constable McArthur as a Witness

1. SC McArthur gave evidence with control and care displaying his experience with giving evidence in Court. I observed him carefully in order to differentiate between technique learned through experience on the one hand and veracity on the other. I also observed him carefully during cross-examination for display of demeanour such as anger or loss of control. During an appropriately robust cross-examination, I observed SC McArthur to maintain his composure.
2. SC McArthur properly conceded that he was an experienced Court witness. He openly gave evidence of having viewed the CCTV footage repeatedly, as opportunity to do so was available to him during his police work, in preparation for the hearing.
3. SC McArthur was willing to make the appropriate concession that although he voiced arrest for assault upon him to Mr Cuthbertson in the vestibule of the train; subsequently when Messrs Fletcher and Cuthbertson were on the platform, he pointed and told Mr Cuthbertson to leave. Later, when on the platform with SC Walker, SC McArthur voiced arrest to Mr Cuthbertson a second time, for the assault in the vestibule. The common ground was; therefore, that between the first and second arrest, SC McArthur told Mr Cuthbertson that he was free to leave.
4. The CCTV being silent, it would have been available to him not to give that evidence of oral direction interrupting the two occasions of arrest. As an experienced police officer, it is likely that he was aware of the prohibition against arrest without a warrant unless necessary under s 99(3) LEPRA.
5. SC McArthur's evidence was that he did not obtain Mr Cuthbertson's identification details until a later time upon the platform than that invitation to leave occurring between the two events of arrest. Accordingly, SC McArthur's evidence conceded that his direction that Mr McArthur was free to leave, was given at a time when he did not have details upon which to issue a Court Attendance Notice. Had Mr Cuthbertson departed at that time, he would have been free of prosecution.
6. It was therefore a substantial concession, in my opinion. The relevant evidence during cross-examination appears in a passage as follows: (Transcript Day 9, page 507 to 508 line 28) Q. When you got off the train for the second time, you have said that you told Mr Cuthbertson he was under arrest for assault, didn't you? A. Assault police, yes. Q. It was your intention, at that time, to get this man's details, so you could forward him a Court attendance notice, that's right, isn't it? A. Yes, I don't know which way it was going to go at that stage, but that was going to be the most likely course. Q. What do you mean you didn't know which way? A. Well, I didn't know if I was going to. Q. Please, just let me finish the question. What do you mean by you didn't know which way it was going to go at that stage? A. Well, I didn't know if I would need to take him back to the police station. Or I didn't know what, if I was going to deal with him by way of future Court attendance notice. Q. If the man had provided his name and address to you, you were then in a position to check that, weren't you? A. Yes. Q. That in fact happened, on this night? A. Yes. Q. If you'd done that, there couldn't have been any possible reason to take him back to the police station? A. No. Q. Could there? A. Only if his violent behaviour continued. Q. Your principal objective, when you got back off the train, was to get his name and address from him, so that you could send him a Court attendance notice, wasn't it? A. Yes. Q. How as Mr Fletcher obstructing you from doing that, or impeding you in achieving that purpose? A. Just, well, as I said, I don't know if you like this word, but general hindrance, impeding, obstructing. Making things difficult. Q. From what, speaking to him? A. Yes. Q. If Mr Fletcher was doing anything, it only had the effect of moving Mr Cuthbertson away from the train, didn't it? A. No, he was making it, the process, very difficult. Q. If Mr Fletcher was impeding you, as you suggest he was, it was only because what you did, as soon as you got off the train, was to attempt to physically seize Mr Cuthbertson? A. No, I approached him. To arrest him. Q. Do you say that when you approached him, to arrest him? A. Yes. Q. You did not initially have any intention of placing your hands on the man? A. Not at that stage, no. Q. When you got off the train, your evidence to this Court, is that you did not have an intention to place your hands on the man? A. No. Not until, no. Q. That is an absolute lie, isn't it? A. No. Q. I want to suggest to you that in the face of what is depicted on that video, you are denying the undeniable? A. No. Q. The reason you're denying it, is because you realise that to get off the train, and immediately to physically seize this man, without making any attempt to get from him his name and address, what unjustifiable? A. I don't know, but that wasn't my intentions. My intention was to rearrest Mr Cuthbertson, and as you've said, get his name and address. However, I was obstructed, or hindered, by Mr Fletcher.

Senior Constable Walker as a Witness

1. I observed SC Walker carefully as he gave his evidence, taking a cautious view of his presentation because of his obvious experience in giving evidence. I formed the view that his evidence was generally reliable. In particular, he was unrattled by a robust cross examination and most importantly; his evidence was consistent with the vision of the transaction available in Exhibit A CCTV. In relation to this latter observation, SC Walker impressed as a witness who was giving evidence according to belief of his actual recollection, refreshed as it would have been by viewing the CCTV footage.

Ticket Checking

1. Following a substantial period of video showing the approximately nine ex-party attendees on their homeward journey to the Central Coast following their attendance at their friend Gabbi's birthday party at Kings Cross, they are seated with a few other passengers in the lower level of a double decker carriage. The group of which the plaintiffs were members are seen behaving with young adult exuberance, but not with visible recklessness or offensively. Indeed, at least a couple of other passengers joined the carriage from an earlier station without apparently taking offence to any behaviour.
2. SC Walker is first seen walking through the carriage. He asked for tickets to be produced. During this engagement, there is no apparent discord visible on the silent videos between him and the plaintiffs. Mr Fletcher's evidence in chief was that he was politely asked for his ticket. He was wrong in his recollection that both Senior Constables were present. Thinking that his friend from junior high school, Mr Cuthbertson, had his ticket, he asked Mr Cuthbertson for it. Upon Mr Cuthbertson informing him that he did not have it, Mr Fletcher found his ticket and presented it. SC Walker then moved up the stairs and disappeared from view leaving the carriage.
3. Mr Cuthbertson appears to be animated, pointing, gesticulating and talking. This was his performance in the carriage when the police were absent and when the police were present.

Second Police Attendance - Mr Fletcher Drinking Alcohol

1. Mr Fletcher's evidence in chief is that when he saw the police re-entering the carriage, he put down the can of alcohol he was holding. In fact, only SC Walker re-visited the carriage. SC McArthur stood on the stairs between the lower compartment of the carriage and the vestibule. He was behind SC Walker. He could hear what was said. Both plaintiffs had been drinking alcohol on the train. Police only saw Mr Fletcher drinking alcohol.
2. SC Walker informed Mr Fletcher that he would be breached for drinking alcohol on the train. It is apparent from Mr Fletcher's evidence that he produced some form of identification from which SC Walker took down his details.
3. During SC Walker taking down his details, Mr Fletcher says that he and Mr Cuthbertson were engaged in general conversation, and as was his habit in general conversation, he was swearing. He was politely asked by SC Walker to stop swearing which he said he did and apologised. Mr Fletcher was repeatedly asked to stop saying "fuck". As SC Walker continued to take down his particulars of identification, Mr Fletcher says that he accidentally again swore. In evidence in chief, he said that at that point SC Walker said to him "That's it mate, you're off the fucking train". As discussed in more detail below, in cross-examination Mr Fletcher conceded that he could not recall what words SC Walker used, and that whilst he retained an impression of "fuck", his evidence in chief was not truthfully accurate. The common ground is that Mr Fletcher was lawfully directed to leave the train.
4. He then got up, walked up the stairs and entered the vestibule with SC Walker and SC McArthur. Mr Cuthbertson joined him in the vestibule.
5. Police evidence was that each of Messrs Fletcher and Cuthbertson smelled of alcohol and that their speech was slightly slurred. The plaintiffs gave evidence of consuming about 4 drinks during the evening at Gabbi's birthday party at Kings Cross, before commencing the journey home by train from Kings Cross to Central Railway Station and then joining the subject train. The can of Woodstock Bourbon & Cola which Mr Fletcher had been holding had been drunk from by each of the plaintiffs on the train.

Exhibit A4 - Vestibule - Facing South - Clear Camera - 055B5981-07

1. The escalation of confrontation and physical engagement commenced in the vestibule of the train carriage as it arrived at Eastwood Station platform.
2. CCTV shows events in the vestibule. The Senior Constables stand in what SC McArthur described as the "blade" position. This means that in accordance with their officer safety protocol, they stand able to see the person under control and each other, angling their bodies and position to do so. Mr Fletcher was the person under control. He was complying with SC Walker's direction, under cl 55 (5), to exit the train when it arrived at Eastwood Station. The Senior Constables were observing Mr Fletcher's compliance. Mr Fletcher had been issued with an Infringement Notice for his consuming alcohol and swearing on the train. Each matter was a minor offence, carrying punishment of a fine.
3. In more detail, the CCTV shows:

• SC McArthur comes up the stairs from the lower carriage into the vestibule first and alone. He positions himself near the base of the stairs from the upper carriage and facing north (toward the camera).
• Mr Fletcher comes up the stairs from the lower carriage, and walks across to near the doors. He stands side-on to the doors facing south (back to the camera).
• Mr Cuthbertson follows behind Mr Fletcher from the lower carriage and stands face-to-face with Mr Fletcher, shoulder to the door. He faces north.
• At 0:24, SC Walker enters the vestibule, being the last to come up the stairs. As did SC McArthur before him, SC Walker holds a rail for stability.
• At 0:29, SC McArthur and SC Walker have adopted the "blade" position, whilst Mr Fletcher and Mr Cuthbertson are still face-to-face and close, apparently talking. Neither SC McArthur nor SC Walker would be within a metre of either of the plaintiffs.
• At 0:36, Mr Fletcher has remained in his position, and Mr Cuthbertson moved back against the south wall whilst facing north to Mr Fletcher. SC McArthur, who had been standing approximately where Mr Cuthbertson moved to, moved to the side to the base of the stairs.
• At 0:41, Mr Fletcher, stands with left hand out toward SC Walker as if Mr Fletcher and SC Walker are talking. SC McArthur is beside and just behind the elbow of Mr Cuthbertson, but looking at Mr Fletcher.

Unlawful Arrest of Mr Cuthbertson

1. That Mr Cuthbertson did not physically slap SC McArthur, and that SC McArthur could not have felt a sting near his sternum, as the Senior Constable claimed; leads inevitably to the conclusion that at the time of the first and second arrests, SC McArthur did not suspect, nor did he have reasonable grounds to suspect, the offence "of assault" under s 58 Crimes Act 1900, or the offence of "resist" had occurred. It follows that s 99 (2) LEPRA did not provide SC McArthur lawful power to arrest Mr Cuthbertson as he did.
2. In consequence of these findings, the restraint of Mr Cuthbertson and struggle with Mr Cuthbertson within the vestibule and pushing him out the door by SC McArthur, was not lawful use of force to prevent escape or for the performance of arrest under s 231 LEPRA.
3. In closing submissions, the defendant attempted to defend SC McArthur's man handling of Mr Cuthbertson by putting that Mr Cuthbertson's "thrashing and pulling away in the vestibule" constituted a breach of the peace because it was likely to cause harm to be done to a person or a person to fear being harmed through the disturbance of Mr Cuthbertson's engagement with SC McArthur. The defendant relied on the judgment of the House of Lords in R v Howell [1982] QB 416 at 427: "It is for this breach of the peace when done in his presence or the reasonable apprehension of it taking place that a constable, or anyone else, may arrest an offender without warrant."
4. In State of NSW v Bouffler [2017] NSWCA 185 at [164] a "breach of the peace" was defined to include "a wide range of actions and threatened actions that interfere with the ordinary operation of civil society".
5. The defendant referred to SC McArthur's evidence that he removed Mr Cuthbertson from the train onto the platform "for fear of the other commuters, the safety of them, the breach of the peace": Transcript Day 6, page 360, lines 34 to 44. During oral closing submissions, Senior Counsel for the defendant directed attention to a seated male person, who I would understand to be a member of the group with which the plaintiffs were travelling - but it is not important one way or the other - raising his hands and sitting back as SC McArthur and Mr Cuthbertson came near to him in their passage through the vestibule. The suggestion was that this was evidence consistent with SC McArthur's concern for other commuters.

Events on the platform up to restraint of Mr Fletcher

1. The defence relies strongly on what it describes as a quality of physically assertive behaviour of the plaintiffs. The defendant relied on SC McArthur's description of them as very erratic in their behaviour.
2. After the plaintiffs were pushed from the train by the Senior Constables, SC McArthur and the plaintiffs were on the platform but SC Walker remained on the train. The CCTV footage does not show that either of the plaintiffs was trying to leave or that they were trying to physically attack SC McArthur. The body deportment particularly of Mr Cuthbertson is consistent with him shouting. SC McArthur's evidence was that Mr Cuthbertson was calling him "fucking tough" and "fucking idiot". In fairness, if that language was used, it was not a threat or a statement of intention by Mr Cuthbertson to participate in violence with SC McArthur or anybody else. Again, in fairness, Mr Cuthbertson had just been man-handled by SC McArthur in the vestibule of the train carriage and arrested for an assault on police which he did not commit.
3. The passage of time following Mr Cuthbertson and Mr Fletcher being ejected from the train is in my view of importance.
4. On Exhibit A5 at 0:32, the plaintiffs and SC McArthur are on the platform, and SC Walker is just inside the door. Immediately previously Mr Fletcher had taken hold of Mr Cuthbertson's white pullover. That action indicated that not only were neither of the plaintiffs behaving in an attacking way to the Senior Constables but that the plaintiffs, particularly Mr Fletcher were exercising physical restraint, opposite to attack. It can be seen that SC McArthur has hold of Mr Cuthbertson's upper arm. Mr Cuthbertson's arms are down. Mr Fletcher's hand is on Mr Cuthbertson's left shoulder. The actions of the plaintiffs are not of aggression directed towards SC McArthur.
5. At 0:38, SC McArthur raises his arm and I accept his evidence that he was directing Mr Cuthbertson that he could leave. This was a release from the first arrest which had been voiced in the vestibule and which I have determined to be an unlawful arrest.
6. At 0:40, SC McArthur re-enters the vestibule of the train and joins SC Walker. In the few seconds beforehand Mr Fletcher's girlfriend Erin had exited the train. She was on the platform. It can be seen that she was refusing Mr Fletcher's encouragement that she re-join the train. She walked away from him at 0:44, and Mr Fletcher can be seen to pick her up from behind and put her back on the train with the Senior Constables. In the process of lifting her body weight from the platform to the train vestibule he has one foot on the platform and one foot placed on the verge of the train. The CCTV shows that his weight never moves into the train. Mr Cuthbertson's right arm is up in obvious direction of Erin to remain on the train. Mr Fletcher immediately steps back on the platform when he releases Erin.

Consideration of Events After Erin Re-joined the Train

1. At this point, at Exhibit A5 2:50, the next period of events of significance in the plaintiff cases commences.
2. In the portion of these reasons where I dealt with reliability of witnesses, I went in detail to the evidence of the incident of SC McArthur lifting Mr Cuthbertson from his embrace of Mr Fletcher. In rejecting the reliability of Mr Cuthbertson's description of the lift - his description of a lift with pinching of skin under both armpits being shown by the CCTV footage to be false - his evidence of this instant which is displayed on the CCTV footage from Exhibit A5 2:50 was grossly exaggerated. SC McArthur's description of the lift by one of his hands under one of Mr Fletcher's armpits was consistent with the CCTV footage and is to be preferred.
3. Following SC McArthur's lift of Mr Cuthbertson the following occurs:

• Mr Cuthbertson throws his arms around and his jumper becomes removed in the physical engagement he has with SC McArthur. SC McArthur's evidence was that he grabbed and lifted then directed Mr Cuthbertson because Mr Cuthbertson had disobeyed the "simple request" that he move away from Mr Fletcher. Mr Fletcher agreed that Mr Cuthbertson started thrashing his arms around and that he removed his shirt, as indeed, I find to be a fair interpretation of the CCTV: Transcript day 3 page 177 lines 31 to 50.
• SC McArthur by placing his hand at the chest to neck junction of the then bare chested Mr Cuthbertson pushes Mr Cuthbertson to the stanchion seat and restrains him in that position.
• In the course of the restraint, Mr Cuthbertson claims SC McArthur forced his head against the stanchion causing the skin to split. Having watched the CCTV footage carefully, in my opinion the physical action satisfies me that there is no action by SC McArthur intended to injure or cause harm to Mr Cuthbertson in that way. SC McArthur conceded that he pushed Mr Cuthbertson's head, causing it to hit the stanchion. No doubt the hit caused discomfort but vision of the CCTV footage does not show any powerful or sudden force. Mr Cuthbertson does not, for instance, reach for his head. CCTV footage does not show that Mr Cuthbertson became angrily aroused such as by flexing his muscles, albeit SC McArthur said he did: Transcript day 7 page 382 line 28. Mr Cuthbertson did not seek medical assistance.

Application of the Civil Liability Act 2002 (NSW)("CLA")

1. Mr Fletcher's claim for damages compensating him for his fractured wrist is a claim for personal injury and for personal injury damages as defined in section 11 CLA. That definition draws no distinction between damages awarded in claims for negligence and damages awarded in claims for an intentional tort: New South Wales v Williamson (2012) 248 CLR 417; [2012] HCA 57 at [18] per French CJ and Hayne J. I reject the plaintiff written submission 31 May 2017 at [6] where it is put that because negligence is not pleaded, the CLA does not apply.
2. It follows that Part 2 CLA applies to Mr Fletcher's claim for damages in respect of his fractured right wrist, unless application of the Act is excluded by section 3B CLA: section 11A(1) CLA. This applies regardless of whether the claim for damages is brought in tort, under statute or otherwise: section 11A(2) CLA.
3. The plaintiff submits: "the conduct of Sen Cons Walker in pulling the plaintiff by the hand/arm caused him to fall backwards to the ground (the point at which the inference is the plaintiff broke his right wrist) was such as to engage" the exclusion pursuant to section 3B CLA of the application of the CLA to damages in regard to Mr Fletcher's fracture.
4. Section 3B CLA relevantly provides: 1. The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows: 1. Civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death…committed by the person - the whole Act except: …
5. The question of whether or not section 3B CLA applies is not satisfied merely by finding the relevant act to have been an "intentional tort"; but rather, the focus is upon the act itself and whether it was both: 1. An intentional act; and 2. Intended to cause injury: Croucher v Cachia [2016] NSWCA 132 at [20] and [31]-[34]; Hamilton v State of NSW [2016] NSWSC 1311.
6. The plaintiff bore the onus of proving that SC Walker intended both the act causing the injury and the injurious consequence. The defendant accepts that "the acts of SC Walker in holding Mr Fletcher by the right arm, continuing to hold him and pulling him away from Erin and the train in response to Mr Fletcher pulling SC Walker towards Erin and the train and in manoeuvring him to the ground in response to Mr Fletcher lunging and leaping towards Erin were intentional acts" within the meaning of section 3B(1)(a): defendant closing submission 5 June 2017 at [199].

Mr Fletcher's Wrist Fracture

1. I have concluded that the right wrist injury which was suffered by Mr Fletcher in his struggle with SC Walker, occurred in the course of lawful action by SC Walker and that the force employed by SC Walker was not excessive because it was lawful, reasonable reaction to the forceful and wrongful action of Mr Fletcher, directed toward Erin pursuant to s230 LEPRA..
2. I am required, in any event, to give reasons briefly assessing damages which would be awarded, had SC Walker's action been tortious.
3. Doctor Ellis assessed Mr Fletcher's right wrist injury as "a minimally displaced fracture of the distal radius of his right arm" Exhibit D. His assessment as at the 8th of July 2016 of resultant disability was expressed as follows: "he has been able to return to full-time work as a carpenter but requires break periods and repetitive movement and forceful use of his right hand are limited by the post-traumatic arthritis affecting the wrist joint. There is signification (sic) weakness in the right hand grip and he is right-handed. It is likely he will maintain his employment as a carpenter in reduced capacity and his impairment was assessed according to AMA Guidelines 5th Edition in my previous report. Further treatment is not likely to improve the function of his right hand. He has persisting disability using a hammer, writing, and driving and can no longer ride a motorbike." The impairment assessment in Doctor Ellis' earlier report of the 21st of October 2015 identified dominant right handgrip strength as impaired at 20% of which 5% was considered pre-exiting, leaving a residual impairment related to the subject injury of 15% right upper extremity impairment. Dr Ellis equated this to an overall whole person impairment of 9%.
4. In closing written submissions at [181] the defendant refers to reports of x-rays pre-existing Doctor Ellis' assessment but apparently not considered by him. Those x-ray reports record that during early treatment the fracture had been immobilized in "good" position. The defendant did not require Doctor Ellis for cross examination. The defendant did not rely on medico-legal opinion. The court does not possess specialist radiological nor orthopaedic expertise such as to reach a preference between descriptions of the fracture contained in medical literature. The unchallenged expert opinion of Doctor Ellis must be accepted subject to proof of the factual history reported to him by Mr Fletcher.

Mr Fletcher - CLA Damages

1. Non-economic loss - section 16 CLA: the above recount of restriction of use of his right hand in the course of work duties provides a description of pain and restriction implicitly pervading Mr Fletcher's activities in private life. He said that the right wrist injury had significantly curtailed his ability to enjoy his passion of motorcycle riding.
2. A high degree of generalization is required in assessing non-economic loss as a percentage of a most extreme case under section 16: Doubleday v Kelly [2005] NSWCA 151; Motorcycling Event Group Australia Pty Ltd v Kelly (2013) 86 NSWLR 55; [2013] NSWCA 361 at [204]. No doubt Mr Fletcher's suffering is not relieved by his continuing want to pursue manual employment requiring the use of his right hand. There is not to be a double compensation with the economic loss which would follow from his impairment. I assess non-economic loss at 25% of a most extreme case in the sum of $40,000.
3. Past Economic Loss: other than the one week of work immediately following the injury and the reference in his evidence to days off when the symptoms were worse, Mr Fletcher did not give evidence upon which a calculation his past economic loss can be approached arithmetically. On day 2 of the hearing, his senior counsel made a submission that a sum of somewhere between $5,000 and $7,500 would be appropriate. He expressly resiled from the sum of $867 described in the plaintiff's Schedule of Damages handed up at the commencement of the hearing.
4. During cross examination, Mr Fletcher agreed that employment records showed he was paid $708 for his work with Campbell's in the week preceding his injury. He was being paid $18.65 per hour from 8 July 2012: Transcript Day 2 page 112; Exhibit 7. Mr Fletcher accepted that in the financial years 2013 to 2016, his gross earnings were $37,500, $42,500, $40,918 and $42,820 respectively. Given his increase in skills over that period; those broad figures do not describe an economic loss consequent of his claimed impairment. Time off due to his back condition is a discounting factor. At [2016] of its written submission made 5 June 2017 the defendant calculation of earnings loss in the week following the injury is in the sum of $957. Imprecision of evidence does not relieve the court of the obligation to assess economic loss. I allow $5,000.
5. Future Economic Loss: Mr Fletcher seeks a buffer in respect of future economic loss, said to restrict his diminished earning capacity consequent of his injury pursuant to section 13 CLA.

Fletcher - Assessment at Common Law

1. General damages: At common law general damages for pain, suffering and loss of amenity are not restricted by the provisions of section 16 CLA. I would assess general damages at common law in the sum of $65,000.
2. Past economic loss: In this case, the provisions of the CLA do not affect the calculation of damages for past economic loss such that the assessment differs from that which I would estimate at common law. I assess past economic loss in the sum of $5,000.
3. Future economic loss: Whilst the above quoted passage from the judgment of Giles JA in Parks' case and in that case per McClellan AJA at [58] refer to the requirement posed by section 13(1) that damages accord with Mr Fletcher's "most likely" future circumstances; at common law, the task of assessment engages with a lower threshold of assessment based on an estimation of possibilities: see the discussion by Hall J in Vo v Tran [2016] NSWSC 1043 at [212]-[225].
4. The imprecision of the evidence in this case is such that whereas in the assessment of this head of damages pursuant to section 13 CLA (above) I referred to a conservative approach to accepting a future of employment for Mr Fletcher achieved in manual work and to his impairment diminishing his capacities for work in the broader employment market of work types; so that imprecision here does not avail, because of the difference between approach on the basis of "possibilities" and "most likely" future circumstances, a different estimate of buffer in the result. I estimate $75,000.
5. Medical expenses: Mr Fletcher does not claim past or future medical expenses.
6. In the event that I had found Mr Fletcher entitled to damages at common law for the injury to his wrist, I would have estimated damages in the total sum of: $145,000.

Fletcher - Damages for the "Assault Allegations" and False Imprisonment

1. I have found that Mr Fletcher was assaulted by SC Walker when SC Walker pushed him from the train vestibule. It was a push of limited force. It was not violent. Mr Fletcher was able to step onto the platform without loss of balance.
2. I have found that Mr Fletcher was assaulted by SC Walker when SC Walker pulled Mr Fletcher's arms behind him and dragged him away from Mr Cuthbertson soon after the Senior Constables stepped from the vestibule of the train onto the platform for the purpose of SC McArthur voicing the second arrest. This assault involved substantial force by SC Walker.
3. I have found that Mr Fletcher was wrongfully imprisoned whilst SC Walker detained him on the platform until the event of the struggle between SC Walker and Mr Fletcher involving Erin.
4. In none of the assaults which I have found, did Mr Fletcher suffer physical injury. Each of the assaults was for duration of only a few seconds. The assaults did not involve frank violence such as punching. The total period of wrongful imprisonment which I have found lasted approximately 2 minutes.
5. By his Statement of Claim, Mr Fletcher identified the first assault as him being pushed from the train: at [6] and the "ASSAULT/S" on the platform by particulars which may encompass the second assault described above however that assault did not find attention in plaintiff closing submissions; written submissions 30 May 2017 at [17] and [18].
6. The physical quality of the first assault was minimal. The physical quality of the second assault was more substantial but in reality, the plaintiff case as I understand it to be prosecuted and in any event, in my view, as it should be in reality and practicality approached; is a case incorporating the second assault as a component of wrongful imprisonment.
7. I approach the question of assessment of damages compensating Mr Fletcher for the tortious "assault allegations" and wrongful imprisonment in the aggregate, as components of a single course of wrongful conduct. In my view, it is not required in the assessment of damages to differentiate between battery and assault in this case.
8. In regard to the two assaults and the wrongful imprisonment, the events occurred in the course of what was fairly observed to be disrespectful behaviour to a quality which would provoke the reasonable police officer albeit, the worst of that behaviour is properly attributable to Mr Cuthbertson. At the time of his ejection from the carriage vestibule Mr Fletcher was complying with the direction that he leave the train. At the time of the second assault he was attempting to distance Mr Cuthbertson from SC McArthur who was approaching Mr Cuthbertson with unreasonable, direct purpose to arrest, having immediately beforehand in the train vestibule man-handled Mr Cuthbertson without lawful cause. Mr Fletcher was entitled to proceed as he did at the point of the second arrest. He was not directing unreasonable force toward either Senior Constable.

Fletcher - Assessment of Damages for the Struggle with SC Walker Related to Erin and the Second Wrongful Imprisonment

1. As I am obliged to do, I assess aggravated and exemplary damages for:

• the struggle with SC Walker in relation to Erin; and
• the second claimed wrongful imprisonment of Mr Fletcher as if I had found in favour of those components of his claim.

1. Applying the above stated principles: if the force employed by SC Walker had been wrongful, then aggravated damages and exemplary damages would be required to compensate Mr Fletcher for the intangible harm he suffered in consequence of that degree of force wrongfully inflicted upon him by a police officer, as well as exemplary damages as a punishment and deterrent from wrongful use of that degree of force by a police officer. I assess aggravated and exemplary damages, in addition to personal injury damages. I assess aggravated and exemplary damages in the single sum of $15,000.
2. The second period of wrongful imprisonment would be the period of six minutes or so that Mr Fletcher sat on the Western side of the platform. He was not approached, stood over or forcefully directed during that period. On the plaintiff case Mr Fletcher remained on the Western side of the platform in compliance with an oral direction by SC Walker that he go and sit there. I would assess ordinary, aggravated and exemplary damages in the single sum of $2,000.

Mr Cuthbertson - Assessment of Damages

1. Mr Cuthbertson was man-handled in the vestibule of the train by SC McArthur. There was no violence in the form of heavy pushing, punching or infliction of pain. Indeed, the violence was, in reality, the strong restraint against Mr Cuthbertson's own force of pulling away. Then SC McArthur pushed him from the carriage holding his arm. That Mr Cuthbertson's behaviour was disrespectful rising to a degree of provocation and satisfying the term used by Senior Counsel for the plaintiffs "smart arse" does not lessen his entitlement to compensation for ordinary damages of the assault; but is a discounting factor for consideration of aggravated and exemplary damages of the assault in the vestibule.
2. Mr Cuthbertson was assaulted again by SC McArthur when proceeding unlawfully with the second arrest, he grabbed Mr Cuthbertson by the arms and using force placed him upon the stanchion seat. There had been the period which I identified when the Senior Constables were within the vestibule of the train and the plaintiffs were upon the platform for SC McArthur to have considered his action. The effect of the "smart arse" conduct of Mr Cuthbertson in the vestibule had expired by the commencement of that second assault in the process of the wrongful second arrest. Mr Cuthbertson's protests of innocence were well-founded from the voicing of the second arrest through the balance of the transaction between himself and the Senior Constables. His shouting that SC McArthur was acting as a "tough guy" was not unreasonable resistance to unlawful police action including the man-handling of him in the train vestibule and on the platform.
3. The pointing of the O.C. canister at Mr Cuthbertson was employment of unnecessary force. Mr Cuthbertson conceded that he did not have an immediate fear that SC McArthur would deploy the spray because SC McArthur did not voice an immediate threat but rather a warning that he could deploy the spray if Mr Cuthbertson was physically oppositional. In that way, on the facts of this case, the O.C. spray was not, in my view, of equal threat to imminent use of a weapon. Nevertheless, as recognised by Nielson DCJ in Randall v State of New South Wales [2013] NSWDC 277 at [88], the O.C. canister was a weapon with potential for use in assault. Pointing of it at Mr Cuthbertson's face from one metre away, particularly in the circumstances that he was seated with his back against the metal pylon of the stanchion in a physically calm deportment with his feet out in from of him and not in any way in a body position "loaded" for physical opposition; was clearly an interference with his personal dignity and caused him a sense of unsafety. This was in a public place albeit there were no persons other than his friend Mr Fletcher to witness it.

Cuthbertson's Claim for Recovery of Legal Costs

1. Mr Cuthbertson defended the charges of assault an officer and resist an officer while in the execution of his duty contrary to section 58 Crimes Act 1900 (NSW). At first instance, in the Local Court, he was convicted but he was successful in his appeal against conviction in the District Court. Mr Cuthbertson concedes that he would not be entitled to recover his costs in defending the criminal proceedings, had he been charged with assault, alone, and not also with the offence of resisting a police officer in the execution of his duty.
2. The amount of the legal costs claimed by Mr Cuthbertson is $91,367.75 being the total of costs and disbursements set out in two invoices issued to him by his solicitors in the criminal proceedings, Messrs Foott Law and Co (the "law practice") on 16 December 2014 in relation to the Local Court and District Court criminal proceedings: Exhibits L and R. Those invoices do not distinguish between the costs relating to the assault and the resist charges. There is no evidence whether or not the bill was fair and reasonable, other than the unchallenged inference arising from a normal experience that licensed practicing solicitors, Senior Counsel and junior counsel would bill appropriately.
3. The parties agree the following points: 1. The provisions of the Legal Professions Act 2004 NSW (LPA) apply; 2. Mr Cuthbertson and the law practice did not enter into a Costs Agreement which complied with the mandatory provisions of the LPA for a Costs Agreement to be enforceable by the law practice; and 3. The law practice did not provide Mr Cuthbertson with costs disclosure as required by Part 3.2, Division 3 of the LPA.
4. The defendant submitted that Mr Cuthbertson's claim for costs as special damages should be dismissed for three reasons: 1. First, Mr Cuthbertson did not prove on the balance of probabilities that he suffered loss in respect of the legal costs of the criminal proceedings because: 1. The legal costs have not been paid by Mr Cuthbertson; 2. Further, Mr Cuthbertson did not prove that he incurred liability in respect of those costs because: a. The evidence did not establish that Mr Cuthbertson entered into costs agreements with the law practice on the terms set out in the unsigned documents of the law practice dated 3 December 2013 and 26 May 2014 (Exhibits H and P) - the purported Costs Agreements, or on any other terms; b. Alternatively, any costs agreement entered into between the law practice and Mr Cuthbertson included a term that he was not required to pay legal costs of the Local Court and District Court criminal proceedings unless and until those legal costs were recovered as damages in a civil claim against the State of New South Wales arising out of the arrest on 8 September 2013. On this basis, it follows that: i. Those agreements are void by reason of sections 323 and 327 of the LPA; ii. Alternatively, if the agreements were valid (which the defendant denied), Mr Cuthbertson's liability to pay legal costs under those agreements was conditional or contingent on this Court awarding damages in respect of those costs in these proceedings, and that conditional contingency has not been fulfilled; 1. Further and alternatively, Mr Cuthbertson did not prove that he was liable to make restitution for legal services provided by the law practice on a quantum meruit basis because his receipt of those services without payment did not constitute unjust enrichment in circumstances where he was told that the law practice would not require payment until the costs were recovered as damages in civil proceedings, and that has not occurred; 2. Further and alternatively, even if Mr Cuthbertson has incurred liability in respect of the legal costs, he is not required to pay those legal costs because: a. The law practice failed to make the disclosures required by sections 309 to 311 and 316 LPA, with the result that Mr Cuthbertson is not required to pay the legal costs, and the law practice cannot maintain proceedings against him to recover those costs, unless they have been assessed: section 317 LPA, 1. The legal costs have not been assessed. 1. Secondly, even if it is found that Mr Cuthbertson has suffered a loss in respect of the legal costs in the criminal proceedings (which the defendant disputed), any such loss was not recoverable as damages in this civil proceeding in any event because it was not the natural and probable consequence of the alleged assault and false imprisonment. 2. Thirdly, even if the Court found that Mr Cuthbertson has suffered a loss in respect of the legal costs of the criminal proceedings (which the defendant disputed) and that such loss was recoverable in this civil proceeding (which the defendant also disputed), Mr Cuthbertson adduced no evidence of the quantum of that loss See defendant written submissions 5 June 2017 at [7].

Consideration of Claim for Costs of the Criminal Proceedings

1. Mr Fahey was a principal solicitor at the law practice and was responsible for the conduct of the criminal proceedings in the Local Court and, on appeal, in the District Court. He gave evidence of receiving instructions, forwarding of "Costs Agreements" of the law practice, receipt of counsels' fee disclosures, billings and evidence of his conversations with Mr Cuthbertson regarding payment of legal costs in the criminal proceedings.
2. By written submissions dated 8 June 2017 Mr Cuthbertson conceded that the law practice costs disclosure was deficient in relation to disclosing matters required by section 310 LPA and that the "Costs Agreements" were deficient and thus void by virtue of the "Costs Agreements" lacking a signature of a responsible solicitor of the law practice pursuant to section 327(1) LPA.
3. The plaintiff submitted that neither the failure to disclose as required by the LPA, nor that the "Costs Agreement" was "void" pursuant to the provision of the LPA extinguished a liability for those costs. The plaintiff submits that in respect of the "void" "Costs Agreements", the costs were recoverable pursuant to section 319(1)(c) LPA. The plaintiff submitted that "nowhere in the scheme of the LPA does the liability for costs cease to exist by virtue of deficiencies in the costs disclosure or costs agreement requirements".
4. At a date not identified in the evidence but prior to the 20th of November 2013 Mr Cuthbertson provided initial instructions to Mr Fahey at the law practice in regard to the Court Attendance Notices which he received in relation to the offences. Mr Fahey said he discussed the charges with Mr Cuthbertson, Mr Cuthbertson paid $1000 at some early stage on account of costs. On 20 November 2013 Mr Cuthbertson entered his plea of not guilty at Ryde Local Court. At some time around 3 December 2013 the law practice forwarded its "Costs Agreement" dated 3 December 2013 (Exhibit H) to Mr Cuthbertson. At about that time but in any event in the early part of the engagement of the law practice, Mr Cuthbertson informed Mr Fahey that he did not have money to pay the costs. Mr Cuthbertson continued to provide and the law practice continued to accept instructions and provide services. The "Costs Agreement" required the client (Mr Cuthbertson) to sign and return it. A signed Costs Agreement was never received from Mr Cuthbertson by the law practice.

COSTS

1. In Mr Fletcher's claim, the defendant has had substantial success on the issues of the struggle related to Erin and the second period of wrongful imprisonment. The defendant should pay 70% of the costs of Mr Fletcher's proceedings accordingly. Mr Cuthbertson has been largely successful in his claim and costs should follow the event.

Interest on Damages

1. The plaintiffs claim interest on their respective awards of damages. The damages crystallized on 8 September 2013. This requires that interest be awarded at the full rate of 4% over 4.2 years on common law damages: MBP (SA) Pty Ltd (1991) 171 CLR 657; [1991] HCA 3. Had damages awarded been assessed pursuant to the provisions of the CLA, section 18 CLA limits on interest would apply.
2. Damages in Mr Fletcher's case: $11,000 x 4% per annum x 4.2 years = $1,848. Mr Cuthbertson's case: $34,000 x 4% per annum x 4.2 years = $5,212.

ORDERS

1. In Fletcher v State of New South Wales 15/00135825: 1. Judgment for the plaintiff against the defendant in the sum of $12,848. 2. Defendant to pay 70% of the plaintiff's cost of the proceedings
2. In Cuthbertson v State of New South Wales 15/0010880: 1. Judgment for the plaintiff against the defendant in the sum of $84,712. 2. Defendant to pay the plaintiff's costs of the proceedings.

Amendments 21 December 2017 - Paragraph 310: changed "For the first and second assaults $4,000" to "Ordinary damages for the first and second assaults and wrongful imprisonment $4,000".

Paragraph [383]: Pursuant to UCPR 36.17 "slip rule", amended interest on damages in Mr Cuthbertson's case to $3,4000 x 4% per annum x 4.2 years = $5,212. Accordingly, arithmetically the total judgment for Mr Cuthbertson in 385 calculates to $85,212. 22 December 2017 - Paragraph [385]: changed "$85,212" to "84,712". 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: 22 December 2017