Owlstara v State of New South Wales

Court of Appeal (NSW)|2020-07-09|Before: Basten JA, Meagher JA

Introduction

The principal question in this appeal is whether the appellant, Ms Lytha Owlstara (the Appellant), is entitled to damages from the respondent, the State of New South Wales (the State), in respect of alleged assault, battery and wrongful imprisonment by Senior Constable Christopher Hurtak of the New South Wales Police Force (the Officer). The Appellant sued the State in the District Court of New South Wales under s 8 of the Law Reform (Vicarious Liability) Act 1983 (NSW) and the Crown Proceedings Act 1988 (NSW), pursuant to which the State is vicariously liable in respect of torts committed by persons in the service of the Crown, including police officers. A judge of the District Court (the primary judge) directed the entry of a verdict for the State and the Appellant now appeals to this Court from the orders made by the primary judge.

Application of the Law Enforcement Act

The primary judge accepted that s 99(3) was satisfied in the light of the evidence given by the Officer. The Officer said that he first observed an unregistered motor vehicle being driven in Picton Road, on the south-western fringes of Sydney. He signalled the driver of the vehicle to pull over but the driver failed to do so. The Officer followed the unregistered vehicle to a property situated in Menangle Road, where the vehicle was driven into a garage on the property. The Officer stopped his vehicle and ran to the garage where he drew his firearm and opened the door of the vehicle. He observed the Appellant sitting in the driver's seat. Thereupon, the Officer arrested the Appellant and handcuffed her.
The Officer said that he followed the vehicle into the garage to apprehend and arrest the driver, who had committed the offences of using an unregistered and uninsured motor vehicle and failing to stop when directed to do so by a police officer. He said that he believed that the driver may have been a suspended driver but could not confirm the identity of the driver. The Officer said that he wanted to find out who the owner and the driver of the unregistered vehicle were before the garage door closed so that he could identify the driver.
The Officer said that he considered it was necessary to arrest the Appellant to prevent the continuation and repetition of the offences of using an unregistered and uninsured motor vehicle and failing to stop when directed to do so by a police officer and to prevent the fabrication of evidence in respect of those offences. He explained that by "fabrication" he had in mind that the identity of the driver was unknown to him at the time and that the Roads and Maritime Service was under no obligation to maintain records of the sale and purchase of unregistered motor vehicles and that he considered that, having regard to the time that had expired since the vehicle in question had ceased to be registered, it may have been sold and transferred between multiple people.
The Officer said that he arrested the Appellant and made the decision to take her to the police station to prevent the further commission of the offences of using the unregistered and uninsured motor vehicle and driving while suspended. He said that he handcuffed the Appellant to prevent her from trying to escape or from injuring him.
The first question is whether the Officer had reasonable grounds for suspecting that it was necessary to arrest the Appellant to prevent a repetition or continuation of the offences of driving an unregistered motor vehicle or driving while suspended or failing to obey the demands of a police officer or to prevent the fabrication of evidence in respect of those offences. The case advanced on behalf of the State was that the Officer suspected that it was necessary to arrest the Appellant because, if he did not do so, she may once again drive the unregistered vehicle. Alternatively, he suspected that it was necessary to arrest her to prevent the fabrication of evidence of an alibi. The thought processes of the Officer as to what evidence could in fact have been fabricated were not pursued in his evidence.
All the Officer needed to establish in order to demonstrate the commission of the offence of driving the unregistered vehicle was to identify the driver. He acknowledged in cross-examination that he had powers to require the Appellant to provide him with her name and address, to direct her to give him that information and to inform her that, if she did not, she would be committing an offence. The Officer accepted that he was entitled, when he opened the vehicle door and saw the Appellant in the car, to require her to produce her licence in addition to provide him with her name and address. He accepted that, if the Appellant had provided him with her licence or her name and address, he could have made checks in relation to that information and check the licence details.
The Officer accepted that, when he opened the door, looked inside the vehicle and saw a middle-aged woman with a shopping bag seated in the vehicle, he realised that the Appellant did not pose any threat. He accepted that, for so long as he kept the Appellant under observation while he was talking to her, he did not have any reason to think that she would pose any threat. He accepted that he was in a position to ask her whether she had noticed that he had been following her for some distance and to ask her questions about what she had been doing. The Officer conceded that, once the door was opened, he had the power to compel the Appellant to give him her name and address and to produce her driver's licence and that failing to do so would be an offence. [9] He accepted that he was in a position to ask her questions about registration of the vehicle and what she had been up to by not pulling over. He accepted that he did not do any of those things, in circumstances where the Appellant posed no threat to him.
The Officer also agreed that, if the Appellant had given him the information about ownership of the vehicle and about her name and address, he would have been in a position to take proceedings in relation to what he had observed on Picton Road and Menangle Road. He agreed that, if the Appellant had admitted that she was the registered owner of the vehicle, he would have made some inquiries to make sure that that was correct.
The Officer accepted in cross-examination that all he needed to take the matter further by, for example, preparing and issuing a Court Attendance Notice, was the identity of the driver of the vehicle. He accepted that, had the Appellant pulled over when he first operated his lights and siren, he would have requested her to produce her driver's licence. He would then have informed her that the registration on the vehicle had expired in June 2013 and would have asked her whether her residential address was the same as that recorded on the licence. He would then have asked her if her driver's licence was suspended or disqualified and would have asked her where she was heading and where she had come from. He would then have returned to the police car and would have manually completed traffic infringement notices in relation to those offences. He would then have returned to the Appellant's vehicle and returned her licence to her, provided her with the penalty notices and explained the methods of dealing with the notices.
The Officer said that he would have then explained to the Appellant the process for applying to have the registration of the vehicle reinstated. He would have said that, being expired for more than three months, the Appellant would have been required to take the vehicle for an unregistered vehicle inspection, pay and organise her third-party insurance and then attend at Roads and Maritime Service and pay the relevant fees. He would then have directed her to drive straight home from that location to wherever she resided and would then have advised her to book the inspections and make the payments in relation to the green slip.
On the findings made by the primary judge, the conduct of the Appellant is inexplicable. The evidence demonstrates that there can be no doubt that she was aware that a police car was behind the vehicle she was driving. For example, at one stage, she pulled over to the left, apparently to let the police vehicle pass her but when it did not, she pulled back into the centre of the road and continued driving. The primary judge accepted that the Officer was sounding his siren and flashing red and blue lights behind the vehicle being driven by the Appellant. Nevertheless, for approximately three kilometres, she continued to drive and declined to pull over. When she reached her property, she pulled directly into the driveway and proceeded immediately into the garage, notwithstanding that the police vehicle followed her into the property.
The primary judge found that the Appellant was aware that she was being pursued by a police vehicle with the intent of having her vehicle stop and that finding is not challenged. The Appellant's actions, in failing to acknowledge the police vehicle and failing to pull over, justified considerable concern on the part of the Officer, notwithstanding that the Appellant was not driving over the speed limit, telegraphed her movements and did not appear to be trying to get away from him. One must have the utmost sympathy for the Officer in dealing with a driver who was apparently prepared to ignore a police officer. Nevertheless, at the end of the pursuit, all that the Officer needed to do to ensure the driver of the vehicle was dealt with according to law was to ascertain the identity of the driver.
If the Appellant had left the vehicle and entered the residence unseen, evidence as to the identity of the driver might have been fabricated, for example, by the Appellant denying that she was the driver, in circumstances where other possible drivers may have in the residence. However, in the circumstances, the Officer could have observed the Appellant in the vehicle and required her to confirm her identity by producing her driver's licence, thereby obviating the possibility of fabrication of evidence. The Officer accepted that, when the Appellant was arrested, the relevant offences had ceased and there was nothing to suggest that the offences were likely to be repeated "immediately".
It was not suggested by the Officer that he intended to keep the Appellant detained for a significant time. Rather, his intention was that the Appellant would be granted bail and, in fact, she was released from custody later in the day. That is to say, it was not the Officer's purposes to ensure that the Appellant be physically prevented from reoffending other than during the short period during which she was in custody. In the circumstances, it is difficult to see how there were reasonable grounds for the Officer to have suspected that it was necessary to arrest the Appellant to prevent a repetition or continuation of any offence. It is equally difficult to see how there were reasonable grounds for the Officer to have suspected that it was necessary to arrest the Appellant to prevent the fabrication of evidence in respect of the offences described above.
I have had the advantage of reading in draft form the proposed reasons of Meagher JA. I agree with his Honour that the arrest of the appellant was unlawful and, accordingly, that her claim of false imprisonment is established. I also agree that it must follow that her claims of assault and battery, in respect of the pointing of a firearm and handcuffing, are established.

Damages

Against the hypothesis that his verdict might be overturned on appeal and the Appellant might establish any of the three torts alleged of assault, battery and wrongful imprisonment, the primary judge, made findings as to the appropriate damages. I agree with Meagher JA that the size of his Honour's award for aggravation of the Appellant's medical condition and future treatment expenses could not be justified. I agree that, while the primary judge may have correctly found that there had been an aggravation of the Appellant's existing condition as a result of the incident, the evidence was extremely uncertain as to precisely what that existing condition was and as to the extent of any aggravation. It was also uncertain as to the treatment, if any, that might be required to address or manage any aspect of her condition that is referrable to any aggravation. In particular, I agree with Meagher JA that the primary judge failed to take sufficient account of the uncertainties in relation to the aggravation of the appellant's existing condition.
In the result, I agree with Meagher JA that the award of damages for aggravation of the appellant's condition should properly form part of an overall award of compensation for the three torts and that that award should be $60,000 and that the allowance for future treatment expenses should be reduced to $5,000.
The primary judge assessed what must be understood to be exemplary damages at $50,000. Inexplicably, in circumstances where the Appellant was the root cause of the misfortune that befell her, the State did not complain about that assessment. These reasons should not be understood as in any way endorsing of the assessment. However, accepting the sum of $50,000 for exemplary damages, I agree with Meagher JA that there should be judgment for the Appellant in the sum of $115,000. I agree with the orders proposed by his Honour.

Endnotes

(2015) 91 NSWLR 666; [2015] NSWCA 228.
McMaster at [357] (McColl JA) and [360] (Meagher JA).
(2012) 273 FLR 370; [2012] ACTCA 52 at [271]-[273].
Civil Liability Act, s 11A(1).
The provisions which remain applicable are s 15B and s 18(1).
See Moore v Scenic Tours Pty Ltd (2020) 94 ALJR 481; [2020] HCA 17 at [46], [49] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ); [69], [72] (Edelman J).
[2020] HCA 26.
Lewis at [14] (Kiefel CJ and Keane J); [21] (Gageler J); [43]-[44] (Gordon J); [170] (Edelman J).
See Road Transport Act 2013 (NSW), ss 175(2) and 177. 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: 15 September 2020

Crown Proceedings Act 1998(NSW)

See Road Transport Act 2013(NSW)

HEADNOTE [This headnote is not to be read as part of the judgment] After a low-speed motor vehicle pursuit involving the appellant driving her unregistered motor vehicle for approximately 3 kilometres with a police constable's vehicle behind her and signalling the need for her to pull over, the appellant drove onto her semi-rural property and into its attached garage. The constable stopped his vehicle close but at an oblique angle to the entrance to the garage, and ran in after the appellant's car with his firearm drawn. For some 19 seconds, neither the constable nor the appellant were in view of the police vehicle's dashboard camera. The constable re-entered the view of the camera while stepping backwards out of the garage with his firearm pointed at the appellant's chest. He proceeded to handcuff the appellant with her hands behind her back and walk her to the front of his police vehicle. She was eventually taken to a nearby police station, where she was held for 6 hours before being released on bail. The appellant brought claims for false imprisonment, five counts of battery, and assault constituted by the pointing of the firearm. The constable arrested the appellant. The prohibition in Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA), s 99(3) nevertheless made any arrest unlawful unless the constable suspected, on reasonable grounds, that the appellant's arrest was necessary for one of the purposes in paras (a)-(f). The constable's evidence, accepted by the primary judge, was that he suspected arrest was necessary to prevent the fabrication of evidence in respect of the offences and to prevent a repetition or continuation of the offending (s 99(3)(b) and (e)). The primary judge found that the constable had reasonable grounds for that suspicion and dismissed the claim for false imprisonment. The appellant's evidence of events in the garage, which included four of the five acts said to be batteries, was rejected by the primary judge. His Honour dismissed her claim for the fifth battery, based on her handcuffing, on the basis that it rose or fell with the claim that her arrest was unauthorised. As to the claim for assault, the constable gave evidence that he pointed his firearm at the appellant after she exited the vehicle because he mistook her car keys, held in her left hand, for a knife. The primary judge accepted that evidence, finding that although the perception had not been recorded in documents prepared by the constable on the day of the incident, it had been recorded in his statement for the appellant's prosecution prepared some weeks after the event. (That last finding was mistaken.) His Honour concluded that the pointing of his firearm at the appellant was reasonably necessary for the exercise of the constable's functions as a police officer, and accordingly that the assault was not actionable by reason of LEPRA, s 230. Finally, the primary judge assessed damages on the hypothesis that the appellant had been successful as $170,000, including a sum of $90,000 for aggravation of her pre-existing PTSD condition and further treatment of that aggravated condition. The respondent submitted that the sum of $90,000 either should not have been awarded or was excessive, having regard to the uncertainty in the expert psychiatric evidence. The issues in the appeal were: (i) Whether the constable had reasonable grounds for his suspicion that it was necessary to arrest the appellant to prevent fabrication of evidence of the offences of which she was suspected or to prevent a continuation or repetition of her offending. (ii) Whether it was reasonably necessary to the exercise of any of the constable's functions as a police officer for the constable to point his firearm at the appellant. (iii) Whether the expert evidence of the appellant's psychiatrist, based on her account of her symptoms, justified a finding that the pointing of the firearm at the appellant aggravated her pre-existing PTSD condition. (iv) Whether the primary judge had adequate regard to the uncertainty in the psychiatric evidence in making a hypothetical award of $90,000 as damages for aggravation of, and further treatment for, the appellant's PTSD condition. Held, allowing the appeal (per Basten JA, Meagher JA and Emmett AJA) As to issue (i):

The decision of the primary judge

Judgment was delivered some 21 months after the conclusion of argument, and almost two years after the evidence of the appellant and Constable Hurtak was given. The existence of such delay provides a possible explanation for deficiencies in decision making, and more relevantly requires that especial care be taken when considering challenges to findings of fact: see especially Laminex (Australia) Pty Ltd v Smeeth [1999] NSWCA 462 at [8]; and Monie v Commonwealth (2005) 63 NSWLR 729; [2005] NSWCA 25 at [3], [43].
His Honour held that Constable Hurtak had reasonable grounds for his suspicion that the appellant's arrest was necessary to prevent a continuation or repetition of the offences, as well as the fabrication of evidence in respect of her offences. It followed that the arrest was authorised by LEPRA, s 99, and the appellant's claim for false imprisonment relating to the period in which she was under arrest was dismissed (Judgment at [153]-[178]).
The appellant's evidence as to the alleged assault (Judgment at [138]) and four of the five alleged batteries was rejected (Judgment at [139]-[152]). As to the fifth, "pulling the plaintiff's hands down behind her back and applying handcuffs", his Honour held that to be lawful "as an aspect of the arrest". His Honour did not separately consider whether that act was authorised by LEPRA, s 231 as a reasonably necessary use of force, on the basis that the appellant did not "contend that if... her arrest was determined to be lawful, the fitting of handcuffs to her nonetheless constituted an actionable battery" (Judgment at [178]). Finally, his Honour held that Constable Hurtak pointing his firearm at the appellant was lawful as "reasonably necessary" to the exercise of his functions as a police officer (LEPRA, s 230) and dismissed her claim for assault made on that basis (Judgment at [129]-[138]).

Whether it was reasonably necessary for Constable Hurtak to train his firearm on the appellant (ground 2)

At the relevant time, ss 230 and 231 of LEPRA provided: 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.
The appeal was argued on the basis that the effect of s 230 was to make "lawful", and therefore not actionable, conduct that would otherwise be tortious: State of New South Wales v McMaster (2015) 91 NSWLR 666; [2015] NSWCA 228 at [230] (Beazley P). Thus, reasonably necessary force used by a police officer in the course of an (authorised) arrest or the exercise of some other function will not constitute assault or battery. But the prima facie position remains that a use of force is an assault or battery unless and until justified. As Campbell JA said in New South Wales v Williamson [2011] NSWCA 183 at [24]: A lawful arrest can provide the legal justification for what would otherwise be the tort of false imprisonment. If reasonable force is used in the course of effecting a lawful arrest, that can provide a legal justification for what would otherwise be an assault or battery.
The primary judge concluded that s 230 was satisfied, because the use of force was "reasonably necessary" to the exercise of Constable Hurtak's "functions as a police officer" (at [230]). On the evidence those functions included charging the appellant with the driving and other offences with which she was later charged and, for the purpose of doing so, compelling her to provide her name and address, and to produce her driver's licence. As Basten JA observes at [10], there is a question, which it is not necessary to decide in this appeal, as to whether s 230 has a separate operation where s 231 is not engaged.
The central issue on ground 2 was whether his Honour erred in finding that Constable Hurtak thought the appellant was holding a knife in her left hand, so as to justify him raising his firearm and pointing it at the appellant's chest.
At least part of Constable Hurtak's account of events in the garage (see above at [27] and [28]) cannot be correct. It is simply not possible to fit into 19 seconds all of the conversation which the constable said took place between him and the appellant after he opened the car door, even if both spoke quickly, together with the appellant's delay in exiting the vehicle and her slow movement towards the entry to the garage. However, as will be seen, it is unnecessary to consider how far the primary judge should have accepted the other elements of Constable Hurtak's version of events.

Whether Constable Hurtak perceived the plaintiff to be holding a knife

Constable Hurtak gave three different accounts of events in the garage: one in the records prepared on 14 September 2013; another in the statement prepared for the appellant's prosecution before Picton Local Court; and another in his evidence at first instance in November 2017. In each there is reference to an object held in the appellant's left hand as she approaches the rear of her car. In the second and third, that reference is connected to his aiming his firearm at her, which did not feature at all in the two records of the first account. And only in his oral evidence did he claim that he initially believed that object to be a knife of some 8-10 cm in length.
Constable Hurtak was cross-examined on these inconsistencies. Initially, he claimed that the "knife" was mentioned in the statement prepared for the appellant's prosecution: "Q. May have been holding a knife. Now, did you write down anywhere, that belief? A. No. Q. Did it make it into the COPS entry? A. In the narrative, no, I don't believe so. Q. Did it make it into your final statement? A. Yes. Q. It did, that she was holding a knife in your belief. A. Yes."
When taken to the statement (which was not tendered in evidence) he conceded that this was not "specifically" so: "Q. So no mention of a knife. A. Not specifically a knife. Q. Why - why do you say not - specifically not? Senior Constable, what do you mean by the word "specifically"? A. Because I haven't written "knife" in my statement."
No explanation was provided for the absence of any reference to a knife in any of the versions of events produced before the hearing at first instance, although Constable Hurtak gave evidence that he had told other police officers about the "knife", including the officer charged with investigating the appellant's complaint about his conduct. No evidence was led from other police officers that this was so.
Before the primary judge, the appellant submitted that Constable Hurtak's evidence that he mistook the car keys for a knife was untrue. The primary judge rejected that submission, in passages it is necessary to set out in full: [116] That inference, in turn, is said to be supported by the failure of Constable Hurtak to record the apprehension of the plaintiff holding the knife in any contemporaneous record made by him. The absence of evidence from any police officer to whom Constable Hurtak is said to have told about his short term apprehension of the plaintiff holding a knife is repeated. [117] Neither the COPS record (Exhibit D) nor the Facts Sheet (Exhibit 00) prepared on 14 September record that aspect of the incident. Each document does record that Constable Hurtak drew his service firearm and also records that the plaintiff held "something in her left hand". It then records that as she was being restrained at the rear of the vehicle, she threw "the object from the left hand over the motor vehicle across the garage approximately 6 metres (Car Keys)". [118] With hindsight, it would have been prudent for Constable Hurtak to have recorded that detail at the time of preparing documents on 14 September. However, I do not place great store on the omission of that detail on 14 September as a basis upon which I should not accept the veracity of his evidence. That aspect of the incident is recorded in the statement of evidence that he commenced to prepare some ten weeks later, being the statement prepared for the proceedings before Picton Local Court and upon which he was cross-examined in the present proceedings. While that statement was prepared in the knowledge that a complaint concerning his conduct had been made by the plaintiff, the inclusion of the detail is as consistent with the need to detail all aspects of the incident as it is with a suggestion of recent invention." [emphasis added]
The State submits that "that aspect of the incident" in [118] refers only to Constable Hurtak's perception that the appellant was holding a potentially dangerous object (not, "specifically", a knife) and his raising his gun in response. Having regard to what appears at [116], that is plainly incorrect, and in any event it was not proved that the statement contained any suggestion that Constable Hurtak perceived the object to be potentially dangerous (other than might be implied by its apparent connection with the raising of the firearm).
The primary judge erred in finding at [97] and [118] that the perception that the appellant was holding a knife was mentioned in the constable's prosecution statement. Another error appears at [96], where his Honour records that the constable believed the "knife" perception was mentioned in the COPS record (cf. [72] above).
The ultimate finding that Constable Hurtak perceived the appellant to be holding a knife may have been informed by the primary judge's impression of the constable as a reliable witness. Ordinarily, such a finding should not be interfered with unless "glaringly improbable" or "contrary to compelling inferences": see Lee v Lee [2019] HCA 28; (2019) 93 ALJR 993 at [55] (Bell, Gageler, Nettle and Edelman JJ); Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [29] (Gleeson CJ, Gummow and Kirby JJ).
However, the nearly two year delay in delivering judgment must be taken to have significantly weakened the primary judge's advantage in seeing the witness. Furthermore, his Honour's "impression" that Constable Hurtak was "endeavouring to be truthful" about his recollection of events (the first paragraph numbered 98 in the judgment) was likely informed by his Honour's wrong understanding that the circumstance that the constable thought the item in the appellant's left hand was a knife had been included in his statement prepared some 10 weeks after the incident. Rather, the position was that in that statement, prepared with the knowledge of the appellant's misconduct claim, and relatively soon after the relevant events, the constable did not record having such a perception when he aimed his firearm at the appellant, even though he specifically described raising his firearm after noticing an object in her left hand.
Considered without reference to the constable's various accounts, there might have been nothing glaringly improbable about a finding that Constable Hurtak mistook the car keys for a knife, particularly if there was evidence that they could have taken on that appearance. But the likelihood of the constable having had such a perception must be assessed in the absence of such evidence and in the light of his failure to mention that critical detail in any roughly contemporaneous document, and even after the need to explain his conduct, including pointing the firearm, had become obvious. The inference to be drawn from those documents, prepared nearly four years before the constable gave evidence in the District Court, is that the constable did not recall having such a perception at the time they were created.
In the result, the primary judge's finding, based as it was upon a fundamentally wrong understanding as to what was in the prosecution statement, was "glaringly improbable". In the absence of that finding there was no basis in the evidence for concluding that the pointing of his firearm at the appellant was reasonably necessary for the exercise of whatever function the constable was seeking to perform (cf. LEPRA, s 230).
On Constable Hurtak's evidence, at the time he aimed his firearm at the appellant he was stepping backwards out of the garage, roughly one and a half metres from the plaintiff, who was walking towards the rear of her car on his instructions. She was moving slowly. Before he raised his firearm, he did not ask the appellant to stop, ask her what she was holding, or instruct her to drop the object. They were alone in the garage. She was a middle-aged woman who was, to say the least, unlikely to present a physical threat to Constable Hurtak. The household items in the garage and the shopping bags in her car did not suggest otherwise. She was obeying his instructions to get out of the car and walk towards the entry to the garage.
Ground 2 should also be upheld.

Assessment of damages

The primary judge's hypothetical award of $170,000 at [212] had four components: $30,000 as "vindicatory damages for each of the three torts"; $75,000 for "aggravation of her pre-existing PTSD condition" together with $15,000 as a "buffer for future expenses in addressing that condition"; and $50,000 as "exemplary damages" (Judgment at [211]). The State does not take issue with the $50,000 awarded by way of exemplary damages (although described by the primary judge as "aggravated" damages) or the $30,000 awarded as general damages for the assault involved in the pointing of the firearm, the battery constituted by the handcuffing, and the false imprisonment relating to the six hours in custody.
Pausing here, there is a problem with the primary judge's description of that $30,000 as "vindicatory" damages. Australian law does not recognise vindicatory damages as a distinct species of damages, "not moored to a compensatory or punitive principle, or to the standard award of nominal damages": Lewis v Australian Capital Territory [2020] HCA 26 at [107], [122] (Gordon J, Gageler J agreeing at [22]), [153] (Edelman J, Kiefel CJ and Keane J agreeing at [2]). However, the appellant is entitled to substantial compensation for the three torts, and no objection was taken on appeal to the award of $30,000. An award of similar magnitude can properly form part of an award of compensatory damages by this Court.
Rather, the State submits that the medical evidence was too uncertain to support the primary judge's finding that the pointing of the gun at the appellant aggravated her pre-existing PTSD condition and that the sums awarded as compensation and for economic loss "in addressing that condition" were excessive having regard to that uncertainty. It is not now disputed that the appellant had a pre-existing PTSD condition referable to other traumas, including past domestic violence, at the time of the incident.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (4 paragraphs)

Parties

Legislation Cited (9)

Cases Cited (21)

Cited By (2)