Pringle & Ors v Everingham

CATCHWORDS: Incidents in hotel car park - police officers breath testing driver of car parked there - ordered to leave - hotel licensee sues police officers for trespass, three assaults and false imprisonment - succeeds in relation to one assault - verdict for defendants on other claims based on special defences not pleaded - defendants decline to amend pleadings at trial - judge erred - Application to amend on appeal - plaintiff alleges defendants estopped by conduct at trial - estoppel irrelevant to amendment - new trial - defendants ordered to pay plaintiff whole of his costs of the first trial on indemnity basis. -- Verdict entered against one police officer for "individual and separate" tort committed by another police officer - judge erred. -- Implied licence to enter hotel car park - police officers entitled to remain to complete breath test notwithstanding direction of licensee to leave.

Civil Procedure Act 2005 Crimes Act 1900 District Court Act 1973 Evidence Act 1995 LEGISLATION CITED: Law Enforcement (Powers & Responsibilities) Act 2002 Liquor Act 1982 Police Act 1990 Road Transport (General) Act 2005 Road Transport (Safety and Traffic Management) Act 1999 Suitors' Fund Act 1951

Adams v Kennedy (2000) 49 NSWLR 78 Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 Bailey v Federal Commission of Taxation (1977) 136 CLR 214 Barker v The Queen (1983) 153 CLR 338 Bell v Lever Brothers Ltd [1932] AC 161 Berowra Holdings Pty Ltd v Gordon (2006) 228 ALR 387 Cavanagh v Nominal Defendant (1958) 100 CLR 375 China Ocean Shipping Co Ltd v PS Chellaram & Co Ltd (1990) 28 NSWLR 354 Christie v Leachinsky [1947] AC 573 Classic Gourmet Sausages Pty Ltd v Leda Commercial Properties Pty Ltd (2000) 171 ALR 17 Clough v Frog (1974) 4 ALR 615 Coco v The Queen (1994) 179 CLR 427 Commonwealth v Verwayen (1990) 170 CLR 394 Cropper v Smith (1884) 26 Ch D 700 Dougherty v Chandler (1946) 46 SR 370 Emmerton v University of Sydney [1970] 2 NSWR 633 Gonzales v Claridades (2003) 58 NSWLR 188 Gonzales v Claridades (2003) 58 NSWLR 211 Gonzales v Claridades [2003] NSWSC 227 Halliday v Nevill (1984) 155 CLR 1 Hameth Pty Ltd v Veron (1964) 81 WN (Pt 1) 447 Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 Helton v Allen (1940) 63 CLR 691 CASES CITED: Hercules Motors Pty Ltd v Schubert (1953) 53 SR 301 Hollington v F Hewthorn & Co Ltd [1943] KB 587 Jamieson v Mutual Acceptance Co Ltd (1965) 83 WN (Pt 1) 121 Johns v The Queen (1980) 143 CLR 108 Leotta v Public Transport Commission (NSW) (1976) 9 ALR 437 Lindley v Rutter [1981] QB 128 Lippl v Haines (1989) 18 NSWLR 620 McAuliffe v The Queen (1995) 183 CLR 108 McIntosh v Webster (1980) 43 FLR 112 National Australia Bank Ltd v Nobile (1988) 100 ALR 227 Phillopini v Leithead [1959] SR (NSW) 352 Plenty v Dillon (1991) 171 CLR 635 Ramsay v Pigram (1968) 118 CLR 271 Roebuck v Mungovin [1994] 2 AC 224 State of Queensland v JL Holdings Pty Ltd (1997) 186 CLR 146 TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 Teoh v Minister for Immigration (1994) 121 ALR 436 Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 Thompson v Palmer (1933) 49 CLR 507 Thompson v Vincent (2005) 153 A Crim R 577 Turner v Dalgety & Co Ltd (1952) 69 WN (NSW) 228 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 Wiltshire v Barrett [1966] 1 QB 312 Woodley v Boyd [2001] NSWCA 35

Owen Peter Pringle - First Appellant PARTIES: Ian Hutchinson - Second Appellant State of New South Wales - Third Appellant Geoffrey James Everingham - Respondent

COUNSEL: ID Temby QC / PR Sternberg - Appellants JJ Garnsey QC / BE Kinsella - Respondent

SOLICITORS: I V Knight, State Crown Solicitor - Appellants James Fuggle, Lismore - Respondent

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40204 of 2004

MASON P SANTOW JA HUNT AJA

Wednesday 27 September 2006 PRINGLE & ORS v EVERINGHAM

The plaintiff, a hotel licensee, saw three police officers breath-testing the driver of a vehicle parked in the hotel car park. He accused the police officers of harassing him, and he ordered them to leave the car park.

The plaintiff sued the three police officers for trespass, assault and false imprisonment. One of the police officers died before trial and the proceedings against him were discontinued. The State of New South Wales was also sued for its vicarious liability for the torts the police officers were alleged to have committed.

The trial judge found that, at the time he challenged the police officers, the plaintiff was intoxicated and that he had expressed his annoyance at the situation by yelling abusive language at them and by waving his arms. One of his arms had accidentally come into contact with the hand of the officer holding the alcometer. The judge held that the police officers had honestly believed that the plaintiff had assaulted the police officer, and that they had reasonable cause to suspect that he was hindering them in the execution of their duty to arrest him for assault.

The judge found that the plaintiff adopted a fighting stance and was moving towards the police in an aggressive manner, challenging the police to take their guns off and to fight him. One of the police officers sprayed the plaintiff with a capsicum (mace) spray. The judge found that the officer was entitled to do so in self-defence. The plaintiff put his hands to his face covering his eyes and started to move towards the second officer, who also sprayed the plaintiff. The judge held that he was not justified in doing so in self-defence and upheld the plaintiff's claim for assault. The plaintiff then took hold of a stick 50-100 cms long and approached the first officer, who sprayed him again. The judge held that he was entitled to do so in self defence.

The judge dismissed the plaintiff's claim for trespass on the basis that the police officers were entitled to remain in the car park, notwithstanding the withdrawal of their implied licence to enter that area, until the breath test had been completed in accordance with the Road Transport (Safety and Traffic Management) Act 1999. No such defence of justification had been pleaded.

The two remaining assault claims were dismissed on the basis that in each case the police officer had acted in self-defence. No such defence had been pleaded.

The false imprisonment claim was dismissed on the basis that the police officer had been entitled to arrest the plaintiff for assault. No such defence of justification had been pleaded.

During the trial, the judge dismissed the plaintiff's complaint that the special defences had not been pleaded, holding that the plaintiff could not possibly have been surprised that they would be raised. The defendants declined to amend their Grounds of Defences to include those special defences. The plaintiff cross-appealed against the judge's ruling.

Held: The judge erred in not requiring the defendants to plead the special defences on which they relied.

Cavanagh v Nominal Defendant (1958) 100 CLR 375; Hercules Motors Pty Ltd v Schubert (1953) 53 SR 301; Hameth Pty Ltd v Veron (1964) 81 WN (Pt 1) 447; Jamieson v Mutual Acceptance Co Ltd (1965) 83 WN (Pt 1) 121 followed.

On the hearing of the appeal, the defendants sought leave to amend their Grounds of Defence to plead the special defences on which they had relied. The plaintiff objected on the ground that the defendants, by declining to amend at the trial on the ground it was unnecessary to do so, were estopped from seeking such an amendment.

Such an amendment can be made on appeal where it reflects the issues litigated in the trial.

Leotta v Public Transport Commission (NSW) (1976) 9 ALR 437; National Australia Bank Ltd v Nobile (1988) 100 ALR 227; Bell v Lever Brothers Ltd [1932] AC 161; Teoh v Minister for Immigration (1994) 121 ALR 436; Classic Gourmet Sausages Pty Ltd v Leda Commercial Properties Pty Ltd (2000) 171 ALR 17 followed. Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 referred to.

The conduct of the defendants at the trial is relevant to an application to amend at the appeal, but whether or not that conduct gave rise to an estoppel is not relevant.

Berowra Holdings Pty Ltd v Gordon (2006) 228 ALR 387 followed.

In any event, the conduct of the defendants did not give rise to an estoppel.

Commonwealth v Verwayen (1990) 170 CLR 394 discussed.

However, in order to meet the prejudice caused to the plaintiff by the grant of the amendment sought, a new trial was necessary and the defendants were ordered to pay the plaintiff the whole of his costs of the first trial on an indemnity basis.

The police officers were entitled to remain in the car park, notwithstanding the withdrawal of their implied license to remain there, in order to complete the breath test.

Plenty v Dillon (1991) 171 CLR 635; Coco v The Queen (1994) 179 CLR 427 considered. TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 referred to.

The judge held that the tort committed by second police officer was "independent and separate". He nevertheless entered a verdict in favour of the plaintiff against both police officers in relation to the assault by the second police officer. There was no evidence that the first police officer had participated in a common design by the second police officer to assault the plaintiff unlawfully or that he shared that officer's intention to do so. There was no case put that the first police officer had contemplated such an assault as a possible incident of the joint enterprise to arrest and subdue the plaintiff.

The judge misdirected himself, and there should have been no verdict entered against the first police officer. The mere presence of a person at the time a tort is committed by another person does not render that person responsible for that tort.

Dougherty v Chandler (1946) 46 SR 370; Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 discussed and followed. Johns v The Queen (1980) 143 CLR 108; McAuliffe v The Queen (1995) 183 CLR 108 applied. Thompson v Vincent (2005) 153 A Crim R 527 followed. Statement in Fleming The Law of Torts (9th Edn, 1998) at 289 queried.

1 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40204 of 2004

MASON P SANTOW JA HUNT AJA

Wednesday 27 September 2006 PRINGLE & ORS v EVERINGHAM

Judgment 1 MASON P : I agree with Hunt AJA. 2 SANTOW JA : I agree with Hunt AJA. 3 HUNT AJA : Geoffrey James Everingham sued Senior Constable Owen Peter Pringle, Detective Senior Constable Ian Hutchinson, Detective Senior Constable Davis and the State of New South Wales in the District Court, claiming damages for trespass, assault and false imprisonment. The damages claimed were compensatory, aggravated and exemplary. The State of New South Wales was sued as being vicariously responsible for the torts alleged to have been committed by the police officers. Detective Sen Const Davis died before the trial, and this Court was informed that the proceedings against him were discontinued. 4 Judge Puckeridge QC gave judgment in favour of the plaintiff against the remaining defendants for $50,000. The defendants have appealed, and filed a notice of contention. The plaintiff has filed a cross-appeal. Leave to appeal and to cross-appeal was granted by a differently constituted Court of Appeal last year.

The trial 5 The proceedings arose out of events which took place outside the Tweed Tavern, a hotel in Murwillumbah, on New Year's Eve 1999 and New Year's Day 2000 - more particularly, in the early hours of 1 January 2000. The plaintiff was the licensee of the hotel. There was a band playing on a semi-trailer parked at one side of the parking area during that evening. The plaintiff had been serving liquor during the evening to people watching the band. He did so at ground level, in a place not included in that part of the building in which the plaintiff was licensed to serve liquor. The plaintiff asserted that he had been granted an oral licence to serve liquor in this extended area for that evening. 6 The geography of the area surrounding the hotel was of some importance to the factual issues which arose at the trial. The hotel is on the corner of Bray Street (which is part of the Pacific Highway) and Alma Street, Murwillumbah. Behind the hotel, and parallel to the highway, is Hayes Lane, a public thoroughfare which gives access to the car park on the land on which the hotel is situated and located behind the hotel. 7 At some time much earlier that evening, Sgt Peter Hunt (who was responsible for licensing matters in the Murwillumbah area at that time) visited the plaintiff's hotel and asked to see the paperwork associated with the extended trading area. The plaintiff accused Sgt Hunt of harassing him. The plaintiff told Sgt Hunt that he did not know that he had to obtain approval from the local council for the temporary bar he had set up, but he also told Sgt Hunt that any dealings between the Tweed Shire Council and himself were outside Sgt Hunt's jurisdiction. Sergeant Hunt described the plaintiff as being agitated, angry and speaking loudly with slurred speech, and his breath as smelling of intoxicating liquor. An hour and a half to two hours later, the three police officer defendants arrived at the hotel in a police vehicle. Constable Pringle informed the plaintiff that they were patrolling licensed premises in the area. 8 At the time when the relevant events occurred, at about 1.30 am, the plaintiff saw that the three defendants had returned in the police vehicle, and that Const Pringle was performing a roadside breath test on the driver of a motor vehicle parked in the hotel car park. The plaintiff went downstairs and, he claimed, within one minute of his arrival and over a period of one further minute, he had been sprayed in the face three times with capsicum (or mace) for absolutely no apparent reason, and he had been overpowered and arrested. He claimed that he had been given no indication or reason why this had been done to him. 9 Most of the facts were in dispute. The judge recited the various contradictory versions in his judgment and made a number of findings of fact. The police officers had parked their vehicle in Hayes Lane, and not on the hotel property as alleged by the plaintiff. The vehicle of the driver being breath-tested was in the hotel car park, near its edge, and Const Pringle was on hotel property administering the test with an instrument known as an alcometer. When the plaintiff went over to the police, he was annoyed at what he considered to be harassment by them. He was also under the influence of intoxicating liquor. He expressed his annoyance at the situation by yelling abusive language at the police and by waving his arms. His arm touched the hand or arm of Const Pringle, who told the plaintiff that he would be reported for assault. 10 The judge did not accept the evidence of the police officers that the plaintiff had deliberately assaulted Const Pringle by striking him on the hand or arm. The judge considered that, when the plaintiff had turned around to return to the hotel, one of his arms had come into contact with Const Pringle's hand holding the alcometer, that this was accidental, that he had done nothing for which he was liable to be apprehended or arrested, and that his accidental hitting of Const Pringle did not of itself justify the use of a capsicum spray. 11 The judge did, however, accept that, after the plaintiff turned, he adopted a fighting stance and was moving towards the police in an aggressive manner, challenging the police to take their guns off and to fight him. He was abusive and angry and was moving his arms and legs in what appeared to be a karate-like fashion. The judge accepted that Const Hutchinson and Const Pringle honestly believed that the plaintiff had assaulted Const Pringle, and that they had reasonable cause to suspect that he was hindering them in the execution of their duty to arrest him for that assault. When Sen Const Davis saw the plaintiff move towards the police in an aggressive manner, he had tried unsuccessfully to calm the plaintiff down, but the plaintiff continued to move towards Const Hutchinson in a threatening manner. The judge found that Const Pringle had arrested the plaintiff for offensive conduct (uttering obscene language in or near a public place) and for hindering police in the execution of their duty, having properly informed him that they were the offences for which he was under arrest: Christie v Leachinsky [1947] AC 573 at 587-588, 591-593, 598, 600; Adams v Kennedy (2000) 49 NSWLR 78 at 85. 12 The judge also accepted that the plaintiff understood that he was to be arrested for assault and that he honestly believed that he had not committed any assault. The plaintiff believed that he and the patrons of the hotel were being harassed, and he had reacted by abusing the police, challenging them to a fight. 13 The judge found that Const Hutchinson had a real apprehension that the plaintiff would have carried out a threat of violence to him. At that time, the judge said, the plaintiff was challenging the police to a fight rather than demand that they leave the hotel premises and property as he had claimed. The plaintiff was calling out for support. A crowd was developing, and the police had become alarmed at the developing situation and were concerned that the plaintiff might access police firearms in any physical confrontation. 14 The judge said that, from an objective point of view, the plaintiff was not offering violent resistance or indicating that he was going to confront the police violently. However, in the circumstances where the plaintiff was aggressive and abusive and threatening violence to the police and moving towards Const Hutchinson in a threatening manner, the judge held, it was not unreasonable for that police officer to come to the conclusion that a violent confrontation was likely to occur. Constable Hutchinson was alarmed at the developing crowd and he had a real apprehension that the plaintiff would have carried out a threat of violence to him. 15 The judge accepted that Const Hutchinson had retreated backwards and had warned the plaintiff to stop or he would spray him. He also accepted that Const Hutchinson had considered other options and had come to the conclusion that the use of the spray was an appropriate option in the circumstances. The judge considered that it was therefore difficult to interfere with a considered option available to and adopted by a police officer. He accepted that the use of the capsicum spray by Const Hutchinson on that occasion was justified in the circumstances. That finding was necessarily based on the constable's "real apprehension" that he would otherwise have been violently assaulted by the plaintiff, and was thus that the spray had been used in self-defence. 16 The next incident involved Const Pringle. Constable Pringle saw the plaintiff being sprayed by Const Hutchinson and that the plaintiff's hands had gone to his face covering his eyes in a "cross-type way". Constable Hutchinson had instructed the plaintiff to lie down or to get down on the ground, but the plaintiff had started to move away. Constable Pringle positioned himself between the plaintiff and the area where the band had been playing. As the plaintiff started to move towards him, Const Pringle told him to stop or he would be sprayed. He then sprayed the plaintiff because he (the plaintiff) had continued to come towards him with his hands in that position. The plaintiff was not holding anything in his hands at that stage. 17 The judge said that, objectively, this could not be considered a situation where a violent confrontation was likely to occur. The position in which the plaintiff had his hands in front of his eyes reasonably indicated that he was affected by the first spray, an indication which Const Pringle acknowledged. There was no indication that Const Pringle had considered any options other than using the spray, such as using physical restraint. The judge recognised that it is always difficult when a serving police officer is faced with certain situations, but he was satisfied that Const Pringle had sprayed the plaintiff without proper consideration of the appropriateness of its use in those circumstances. He found that the use of the spray was out of proportion to any offer of violence by the plaintiff, and that it constituted an assault on the plaintiff. 18 The third incident involved Const Hutchinson again. After being sprayed by Const Pringle, the plaintiff had retreated to a Besser-block wall in Hayes Lane where he grabbed hold of a stick or a branch about 50-100 cms in length from the top of the wall. He was still being abusive towards the police. The judge found that the plaintiff then approached Const Hutchinson, holding one hand in front of his eyes and swinging the branch in front of him with the other hand, thereby threatening Const Hutchinson. The hand in front of his eyes was clenched in the manner of a fist. Constable Hutchinson told the plaintiff to stop and not to move or he would be sprayed. When the plaintiff kept coming, Const Hutchinson sprayed him again. The judge found that a violent confrontation was likely to occur, and that Const Hutchinson was justified in using the spray "by way of defence". 19 The police laid a number of charges against the plaintiff. Those charges were disposed of before the trial of the plaintiff's damages claim, with the following results: Charge Local Court District Court Resist or hinder police in execution of duty Guilty Dismissed on appeal Offensive behaviour in/near public place Guilty Proved, no conviction Resist or hinder police in execution of duty Dismissed Resist or hinder police in execution of duty Dismissed Incite to resist/hinder police in execution Dismissed Assault police in execution of duty Guilty Dismissed on appeal Assault police in execution of duty Guilty Dismissed on appeal Resist or hinder police in execution of duty Dismissed

Those results played a significant part in the pleading issue which arose in the trial. 20 In the present case, Judge Puckeridge (who had not heard the appeal from the Local Court) dismissed the plaintiff's trespass case. First, he found that the police vehicle was parked in Hayes Lane, a public road, and that this had been done by the police officers for the purpose of obtaining photographic evidence of the area in order to refer it to the licensing authorities for determination as to whether or not the plaintiff was permitted to trade in the downstairs area of the hotel. That finding was made by the judge notwithstanding his rejection of evidence by Const Pringle seeking to explain inconsistent evidence he had given in the Local Court, that the police vehicle had been parked in the hotel car park rather than Hayes Lane. 21 Secondly, the judge held that the officers had seen the manner in which the vehicle in question had been driven into the car park, and therefore had authority to enter the car park in order to carry out breath tests on the driver of that vehicle. The judge accepted the evidence of the police officers that the breath test had not been completed at the time the plaintiff approached them and ordered them to leave. The judge found that the police were entitled to complete the breath test. 22 The judge found that, although Const Hutchinson "may" have been on hotel land at the time of the first spraying incident, he was in a place which could accurately be described as an area of land used by the public for the purpose of parking their vehicles. Both the plaintiff and Const Pringle were in Hayes Lane at the time of the second spraying incident. The judge made no finding as to where the third spraying incident took place but, in the light of his finding that the police were entitled to remain in the hotel car park in order to complete the breath test, and as the breath test had not been completed when the plaintiff approached them in an offensive manner, it may safely be assumed that the third spraying incident also took place on the land used by the public for the purpose of parking their vehicles. 23 The judge found that the plaintiff was abusing the police and threatening violence towards them, that the police reasonably believed that the plaintiff was behaving in an offensive manner in or near a public place, that they had reasonable cause to suspect that the plaintiff was hindering them in the execution of their duty to arrest him for that behaviour, and thus that their arrest of the plaintiff was justified on those bases. 24 The false imprisonment claim related to the period the plaintiff remained in police custody following his arrest. The dismissal of that claim necessarily followed the finding that the plaintiff's arrest had been lawful: Christie v Leachinsky at 600; Adams v Kennedy at 85. .

The appeal and cross-appeal 25 The remaining defendants have appealed against the finding of assault by Const Pringle on three bases: (1) Insofar as the judge found that the use of the capsicum spray by Const Pringle was not justified as a response to apprehended violence from the plaintiff, that finding was inconsistent with his findings in favour of Const Hutchison, and perverse. (2) All three uses of the capsicum spray were in any event justified in order to effect the arrest of the plaintiff which the judge had held was justified. (3) As the judge found that the police had attended the premises in order to obtain evidence relevant to a breach of the Liquor Act 1982, the plaintiff himself had committed offences under that Act by refusing to allow them to enter and by hindering or obstructing them in the exercise of their functions under that Act. This third basis was raised by the defendants' notice of contention. It was not fully argued in the appeal. 26 A separate ground of appeal by the remaining defendants directed to the assault claim is that, despite finding that Const Hutchison had not assaulted the plaintiff, the judge erroneously held him jointly liable for the assault by Const Pringle. The defendants have also appealed against the amount of damages awarded to the plaintiff.

27 The plaintiff's cross-appeal is against the whole of the judgment except the finding by the judge that Const Pringle had assaulted him by using excessive force. He has appealed against the dismissal of his two claims against Const Hutchinson for assault and of his claims against all the defendants for trespass and false imprisonment. He has also appealed against the judge's rejection of his claim for aggravated and exemplary damages. The fundamental basis for the plaintiff's attack on many of the findings made by the judge in favour of the defendants is that they related to matters which were not in issue in the proceedings, as there was no defence of justification pleaded and no particulars of such a defence had been provided, and the defendants had "elected" to proceed to trial and judgment without pleading such a defence. Senior counsel then appearing for the defendants had refused to plead such a defence or to provide particulars despite being requested by the plaintiff - and invited by the judge - to do so during the trial.

28 There is a considerable degree of overlap between the issues raised in each of the appeal and the cross-appeal in relation to liability, which makes it difficult to deal with the various grounds of appeal and cross-appeal either separately or in any logical order. The first three grounds of appeal raised by the defendants (set out in par [25] supra ) do not arise if the plaintiff's cross-appeal that the findings in favour of the defendant were not available in the absence of any pleaded defences of justification is upheld. When this issue was being argued during the appeal, application was made by the defendants to amend their Grounds of Defence to include defences of justification. Whether that amendment should be granted at this stage depends on a determination as to whether the plaintiff would be prejudiced and, if so, whether that prejudice can be met by an order for costs. It is therefore convenient to determine first the pleading issue raised in the plaintiff's cross-appeal, that no defence of justification had been pleaded, together with the defendants' application to amend.

29 The plaintiff's Statement of Claim, in pars 4, 5 and 6, pleaded the causes of action in trespass, assault and false imprisonment in common form, and encapsulated his case in the particulars provided in the pleading: (i) The first to third defendants entered the parking area of the said Tavern at approximately 1.30 am on 1 January 2000, in a marked police patrol car. After a short period of time the plaintiff entered the car park from the Tavern and made a lawful demand that the first to third defendants leave the property.

(ii) The first to third defendants then assaulted the plaintiff by spraying him with capsicum spray and handcuffing him while purporting to arrest him.

(iii) After handcuffing the plaintiff the first to third defendants placed him in a police vehicle and took him to Murwillumbah police station where he was held in custody. The first particular is of the trespass claim; the second is of the assault claims; and the third is of the false imprisonment claim. 30 So far as pars 4, 5 and 6 of the Statement of Claim are concerned, the defendants' Grounds of Defence merely denied "each and every allegation" in those paragraphs. Such a denial puts in issue each element of the torts claimed in those paragraphs and each allegation in the particulars provided. 31 DCR Pt 9 r 9, as it was then in force, required a defendant to plead specifically any matter: (a) which he alleges makes any claim, defence or other case of the opposite party not maintainable,

(b) which, if not pleaded specifically, may take the opposite party by surprise, or

(c) which raises matters of fact not arising out of the preceding pleading. Those lettered paragraphs are stated in the alternative. 32 The trespass claim failed because the defendants were entitled to remain on the premises by statute (par [22] supra ). The two assaults involving Const Hutchinson failed because he had acted in self-defence on each occasion (pars [15], [18] supra ). These defences upheld by the judge clearly fell within both pars (a) and (c) of Pt 9 r 9. The false imprisonment claim failed because the plaintiff's arrest was justified (par [23] supra ), and it is at least arguable that an entitlement to arrest the plaintiff fell within the rule as well, but it is unnecessary to resolve that issue in this appeal. 33 The plaintiff has also argued that all of the defences of justification in the present case fell within par (b) - that he was taken by surprise - because the issues had been fought in the proceedings when the plaintiff was prosecuted in the Local Court and (on appeal) in the District Court, and the police had failed in relation to them. 34 Some of the arguments put by the plaintiff at the trial appeared to be suggesting, incorrectly, that his acquittal of the charges was of some relevance to the factual issues in the civil proceedings. In Hollington v F Hewthorn & Co Ltd [1943] KB 587, it was argued that a conviction for negligent driving was relevant in civil proceedings against the convicted driver for damages for negligent driving as prima facie evidence of that fact. It was held (at 594-595, 601-602) that the result of the criminal proceedings proved no more than that another court had considered the driver to have been negligent. The general effect of that decision so far as the admissibility of a conviction is concerned has now been reversed by s 92(2) of Evidence Act 1995, but it has not been reversed so far as an acquittal is concerned, thus preserving the distinction drawn by the High Court in Helton v Allen (1940) 63 CLR 691 at 710: Gonzales v Claridades [2003] NSWSC 227 (reported on other matters as (2003) 58 NSWLR 188) at [62]-[66]; this issue did not arise in the appeal reported at (2003) 58 NSWLR 211. 35 Before this Court, the plaintiff argued only that, whatever may otherwise have been a normal expectation that the police officers would seek to justify their conduct in relation to the plaintiff's assault claims, that expectation was put at rest by the "natural" assumption that the absence of a plea of justification in the Grounds of Defence filed was explicable by the defendants' lack of success in relation to those issues in the criminal proceedings. 36 Counsel appearing for the defendants in the appeal suggested that the plaintiff had been adequately forewarned of the issues of justification and self-defence by reason of an extended debate "more than halfway through the trial". In fact, the debate occurred well into the defendants' case. Counsel appearing for the defendants at the trial had not opened his case at any stage of the trial. When Sgt Hunt was giving evidence for the defendants, their counsel asked him a number of questions about the use of capsicum sprays in the course of arresting a person. Counsel for the plaintiff objected, pointing out that there was no defence of justification or self-defence pleaded to the assault claim, or of any entitlement to arrest the plaintiff to the false imprisonment claim. The judge said that the denial of the false imprisonment would be sufficient to permit the defendants to prove an entitlement to arrest the plaintiff. As I have already stated (in par [32] supra ), it is unnecessary to resolve that issue in this appeal. 37 Counsel for the plaintiff referred the judge to Pt 9 r 9, the terms of which are set out in par [31] supra . The subsequent debate appears to have concentrated almost entirely on whether or not the plaintiff was surprised by the evidence which was being led, and no reference was made to the obligation placed by the rule on a defendant to plead any defence which alleges that the plaintiff's claim was not maintainable, or which raises matters of fact not arising out of the Statement of Claim. 38 Counsel for the defendants submitted that his case was not caught by Pt 9 r 9 because there was no surprise, a submission which the judge accepted, saying "[there] can be no surprise". The judge placed considerable emphasis on the evidence which had been given in the criminal proceedings as being relevant to the issue of surprise. He said that the issue was the same in the civil proceedings - whether the plaintiff had acted in a way which provoked the use of the capsicum spray, and whether in any event the use of the capsicum spray was necessary when it would have been sufficient to manhandle the plaintiff. He said to counsel for the defendants: I can't see how he [counsel for the plaintiff] could possibly be taken by surprise. If in fact - and this happens regularly - if he claims that there was any surprise and wishing to have it particularised, I will clearly grant leave to the defendant to amend the grounds of defence to put in any question in that regard [ sic ]. Counsel for the defendants declined to accept this invitation to amend, submitting that there was no need to do so. 39 This state of affairs was most unsatisfactory. It is not as though those appearing for the defendants (including the State Crown Solicitor's Office) were ignorant of the need to plead special defences. In the course of the debate which took place, counsel for the plaintiff informed the judge that notice had been given by the defendants' solicitor before trial that it was proposed that an amended defence be pleaded pursuant to s 213 of the Police Act 1990, but no answer had been received from the defendants' solicitors to the plaintiff's request for particulars. Section 213 provides: Protection from personal liability

A member of NSW Police is not liable for any injury or damage caused by any act or omission of the member in the exercise by the member in good faith of a function conferred or imposed by or under this or any other Act or law (whether written or unwritten). There was no application made at the trial to pursue such a defence, but the notice given before trial is totally inconsistent with the attitude taken at the trial in relation to the other special defences such as justification or self-defence. No attempt was made by counsel for the defendants to draw a distinction between that defence and any other such special defence. 40 Counsel for the plaintiff made it clear that he accepted the judge's remarks as a ruling that the defences of justification and self-defence did not have to be pleaded (whilst very properly maintaining his dissent). The appeal proceeded on the joint approach of the parties that the judge had never required the defendants to plead the defences of justification and self-defence. When asked during the appeal why the defendants had not sought an amendment at the trial, their counsel replied that, as the judge took the view that the issues were sufficiently clear in the case, there was "simply no need" to amend, and that the judge had "effectively dispensed" with the requirements of Pt 9 r 9. It was pointed out that counsel for the plaintiff had not sought to recall his client or to reopen his case, or an adjournment or any other relief, and that he could not possibly have been taken by surprise. 41 Counsel appearing for the defendants (both at the trial and on the appeal) and the trial judge were all in error in asserting that no amendment to the pleadings was necessary. No issue of either self-defence or justification arose on the pleadings and, whilst the evidence given by the defendants in relation to those issues appears to have been admissible on the issue of aggravated and exemplary damages whatever defence was filed (as counsel for the plaintiff accepted), no verdict for the defendants on either of those issues could properly have been entered without an amendment to the pleadings. Whether the plaintiff was surprised by the issues being raised at the trial was relevant to whether or not an amendment to the pleadings should be allowed so that they would conform to the defendants' case, but the lack of surprise on the part of the plaintiff was no answer to the requirements of Pt 9 r 9(a) and (c). It was essential that the Grounds of Defence be amended before the defendants' case could proceed. 42 In Cavanagh v Nominal Defendant (1958) 100 CLR 375 at 389, Windeyer J said of the course taken at the trial of that case: It was a mistake to approach the question of the admissibility of evidence as if the issues for trial were other than they were. If the parties did so approach the matter, as it was suggested to us they did, this may have created some embarrassment for the trial judge. It is said that the pleadings were disregarded at the trial, They should not have been. The issue joined between the parties was one of the issues which the jury were empanelled to try, and which they were sworn to try. It was quite explicit. And, although this issue was apparently lost sight of, no other issue was formulated. As a result, confusion occurred; … . Kitto J (at 384) "entirely" concurred with what Windeyer J said. The present case was not tried with a jury, but the necessity for a trial to be conducted in accordance with the pleadings is not restricted to jury trials. 43 Even when the District Court was not a court of strict pleading (before the District Court Act 1973), it was recognised that the issues had to be defined with reasonable particularity and the trial and findings had to be limited to the issues so defined. In Hercules Motors Pty Ltd v Schubert (1953) 53 SR 301, Owen J said (at 309-310) that each party was entitled to have the action tried on the pleadings, be they pleadings in the strict sense of the word or not, and to maintain the attitude that he will not litigate or debate an issue which is not raised by those pleadings. He pointed out (at 309): The necessity for compliance with these rules [the District Court Rules] is obvious, not only because a party is entitled to know what case he has to meet, so that he may decide whether to contest it or not, but because of the estoppels which necessarily arise where a verdict is found by a court of competent jurisdiction on issues joined between the parties. The picture of a court dispensing justice in an informal fashion and without regard to the rules of procedure and practice, as though it were a tribal chief, may appeal to some, but in a highly organised and complex society actions can only be properly tried with justice to both parties if the issues are first defined and the evidence and findings are kept within the bounds of those issues. Owen J dissented in that case as to whether the real issues had been sufficiently raised at the trial, but the general purport of what he said there was effectively applied by the Full Court in a later case, to which I refer in the next paragraph. 44 In Hameth Pty Ltd v Veron (1964) 81 WN (Pt 1) 447, the Chairman of the District Court Judges, Judge Monahan, said (at 448): It has always been recognised in the District Court that accuracy in pleading has never been called for, but the statement of cause of action, however inartificially [ sic , quaere inarticulately] expressed, has generally been accepted by judges and the practitioners in this Court as sufficient, so long as there is indicated to the defendant the cause of action upon which the plaintiff is relying, and any generality of expression can be remedied by application for particulars in the true sense of the word.

I do not think that the court should encourage the practice of litigants filing any sort of a set of particulars of demand and thus in effect saying, "You ought to know what it is all about and anyway you can apply for particulars if you like". I think the rules should be observed, otherwise we would be getting to the state where it will be said that anything will do as long as the defendant gets some sort of idea of what it is all about. In Jamieson v Mutual Acceptance Co Ltd (1965) 83 WN (Pt 1) 121, Walsh J (at 124) made it clear that what he had said of the particular circumstances of that case was not be taken as disagreeing with what Monaghan Ch DCJ had said - that it was not satisfactory that a plaintiff should seek to deny any need for framing his case properly by saying that the defendant must know all about the claim independently of the information which the particulars of claim gave to him. Wallace J said (at 126) that he "entirely agreed" with what Monaghan Ch DCJ had said. It follows that, now that the District Court is a court in which pleadings must be filed, the same rule necessarily applies to a defendant in relation to his case in defence. 45 In my opinion, the absence of any defences of justification or self-defence at the trial in the present case meant that the verdicts entered for the defendants in relation to each of the causes of action pleaded by the plaintiff other than the one case of assault which the judge found in the plaintiff's favour were not open to the judge. That conclusion leads to a consideration of the application by the defendants during the appeal to amend their Grounds of Defence. 46 The defendants were directed to produce to this Court a draft amendment which pleaded the issues which had been raised at the trial. In addition to the previously pleaded denials of the facts asserted by the plaintiff in his Statement of Claim, the amendment produced was in the following terms: 3. The First to Third Defendants were entitled to enter and remain upon the car park of the Tweed Tavern:

(a) pursuant to an implied licence from the plaintiff; (b) in exercise of their powers under s 110(3) of the Liquor Act 1982; or alternatively (c) to effect the arrest of the plaintiff on reasonable suspicion that he had committed the offence of either hindering police in the execution of their duty or behaving in an offensive manner in or near a public place; or alternatively (d) to conduct a breathalyser test on a driver, K Little, who had driven into the car park, which was a road related area within the meaning of the Road Transport (Safety and Traffic Management) Act 1999.

4. Each of the First and Second Defendants sprayed the plaintiff with OC spray, and was justified in doing so in that the spraying constituted reasonable force:

(a) in self-defence as against the plaintiff; and/or (b) in effecting the arrest of the plaintiff for the offences in paragraph (3)(c) above. 47 Neither statutory provision was raised during the lengthy debate which took place after the defendants' case had been underway for some time, and to which reference was made in par [36] supra . They were raised for the first time, together with a miscellany of statutory provisions under the Crimes Act 1900, at the end of the final address by counsel for the defendants. I will return to this matter later in this judgment. 48 Pleadings are intended to identify the real issues between the parties, and there can usually be no objection to an amendment of the pleadings in order to reflect the real issues between the parties where the other party is aware of those issues and either came prepared to meet his opponent's case or is able reasonably to meet it (if necessary, after an adjournment). It is a well established principle that the object of courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights: Cropper v Smith (1884) 26 Ch D 700 at 710; and that amendments should be allowed unless it appears that an injustice would thereby be occasioned to the other party which cannot be cured by costs: Clough v Frog (1974) 4 ALR 615 at 618. These statements were reiterated and reinforced by the High Court in State of Queensland v JL Holdings Pty Ltd (1997) 186 CLR 146 at 152-155.

49 An amendment to the pleadings ordinarily should be made in order to reflect the factual matters being litigated in the trial, or (where the amendment is sought on appeal) to reflect those which were litigated in the trial from which the appeal is brought: Leotta v Public Transport Commission (NSW) (1976) 9 ALR 437 at 446; National Australia Bank Ltd v Nobile (1988) 100 ALR 227 at 235-236. In Bell v Lever Brothers Ltd [1932] AC 161, Lord Atkin said (at 216) that an appellate court may amend the pleadings in order to raise an issue which had not been pleaded where it can be determined on the existing evidence. This statement was followed in Teoh v Minister for Immigration (1994) 121 ALR 436, by Lee J at 445 (with whose reasons Black CJ agreed, at 440) when permitting an amendment to made during the appeal to the originating process, where the case sought to be made on appeal was not different to that which emerged at the trial. In Classic Gourmet Sausages Pty Ltd v Leda Commercial Properties Pty Ltd (2000) 171 ALR 17, at [81]-[84], the Federal Court (sitting on appeal from the Supreme Court of the Australian Capital Territory) allowed an amendment to add a party to the appeal in order to correct a formal defect in the proceedings in the Supreme Court. See also Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 at [69]. 50 It was accepted by counsel for the plaintiff during the hearing of the appeal that it would be appropriate for an amendment to be made to the pleadings on appeal in order reflect the issues which were litigated at the trial. Counsel for the plaintiff nevertheless still maintained his objection to the proposed amendment being allowed. It was submitted that the defendants had either waived their right to seek an amendment, as they had elected at the trial not to amend, or alternatively that they were estopped from seeking an amendment at this stage. This submission was based on the decision of the High Court in Commonwealth v Verwayen (1990) 170 CLR 394. 51 The High Court has recently made it clear that the considerations governing the exercise of the court's discretionary power to allow a party to amend its pleading are not necessarily the same as, and may be of a different kind from, those which go to establish either waiver amounting to an election or an estoppel: Berowra Holdings Pty Ltd v Gordon (2006) 228 ALR 387 at [39]. Reference was made in the joint judgment in that case to what was said by Dawson J in Verwayen (at 456) - where he described the term "waiver" as imprecise - and to what was said by Lord Browne-Wilkinson in Roebuck v Mungovin [1994] 2 AC 224 at 235-236 - where he said that a representation by a party as to its future conduct (here, that it would not seek to amend its pleading) raises only an equitable estoppel, and that the existence of such an estoppel gives to the court power to do what is equitable in the circumstances, relief which was of an extremely flexible nature. The High Court in Berowra Holdings went on to point out (in par [39]) that the conduct of the proceedings by a party is relevant in an application by that party for leave to amend, but that the outcome of the application depends not on the exercise or non-exercise of a right by that party but on the usual exercise of the discretionary power given to the court. 52 Before considering the defendants' application to amend in accordance with the usual principles, and in deference to the arguments put by the plaintiff in support his submission, I should state that I am in any event unpersuaded that the defendants are estopped by their conduct at the trial from seeking an amendment in the appeal. 53 In Commonwealth v Verwayen , the plaintiff had been injured in 1964 when the aircraft carrier HMAS Melbourne collided with the destroyer HMAS Voyager . He sued in the Supreme Court of Victoria in 1984, claiming damages from the Commonwealth for its negligence in that collision in reliance on the Commonwealth's representation that it would neither contest liability nor plead a limitation defence. The Commonwealth admitted liability on the pleadings and the matter was set down for an assessment of damages. On the eve of that hearing, the Commonwealth obtained leave from a Master to plead a defence that the limitation period had expired. The plaintiff did not appeal from the Master's decision granting leave to make such an amendment, but pleaded in reply that the Commonwealth was prevented from amending its defence on the basis of promissory estoppel. The High Court, by a majority, held that the Commonwealth was not free to dispute its liability to the plaintiff - by Deane J and Dawson J, because it was estopped from doing so and, by Toohey J and Gaudron J, because it had waived its right to do so. Mason CJ, Brennan J and McHugh J dissented on the basis that (stated in very general terms) neither estoppel nor waiver prevented the Commonwealth from amending its defence to rely on the expiration of the limitation period as there was no detriment to the plaintiff which would not be cured by an order for costs. 54 On one view of Verwayen , the decision has no ratio decidendi . Nevertheless, there is considerable assistance to be obtained from what was said in that judgment concerning the issue of estoppel by conduct. Deane J stated (at 444-445) a number of principles relevant to the present case: 2. The central principle of the doctrine is that the law will not permit an unconscionable - or, more accurately, unconscientious - departure by one party from the subject matter of an assumption which has been adopted by the other party as the basis of some relationship, course of conduct, act or omission which would operate to that other party's detriment if the assumption be not adhered to for the purposes of the litigation. […] 4. The question whether such a departure would be unconscionable relates to the conduct of the allegedly estopped party in all the circumstances. That party must have played such a part in the adoption of, or persistence in, the assumption that he would be guilty of unjust and oppressive conduct if he were now to depart from it. The cases indicate four main, but not exhaustive, categories in which an affirmative answer to that question may be justified, namely, where that party: (a) has induced the assumption by express or implied representation; […] (d) knew that the other party laboured under the assumption and refrained from correcting him when it was his duty in conscience to do so. Ultimately, however, the question whether departure from the assumption would be unconscionable must be resolved not by reference to some preconceived formula framed to serve as a universal yardstick but by reference to all the circumstances of the case, including the reasonableness of the conduct of the other party in acting upon the assumption and the nature and extent of the detriment which he would sustain by acting upon the assumption if departure from the issues and state of affairs were permitted. In cases falling within category (a), a critical consideration will commonly be that the allegedly estopped party knew or intended or clearly ought to have known that the other party would be induced by his conduct to adopt, and act on the basis of, the assumption. […] Obviously, the facts of a particular case may be such that it falls within more than one of the above categories. 55 Deane J held (at 446-447) that the Commonwealth's departure from its previous representation would be unconscionable, and that the application of such an estoppel was not disproportionately burdensome to the Commonwealth. Dawson J similarly held (at 460, 461-462) that the Commonwealth's departure from the plaintiff's assumption that it would not raise a defence of limitation was unconscionable: see, generally, Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387. The statements by Deane J (and similar statements by the other justices) in Verwayen have been either applied or accepted in subsequent cases as correctly stating the relevant principles. 56 In China Ocean Shipping Co Ltd v PS Chellaram & Co Ltd (1990) 28 NSWLR 354, Kirby J (when President of this Court) considered (at 385-386) that it was appropriate to apply the tests of unconscionable conduct stated in Verwayen by Deane J (at 444), which he described as "representing an elaboration of what had been said in Walton Stores ". 57 In Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485, the ASC appeared before the Supreme Court of Western Australia on an application by the company for an order pursuant to s 411 of the Corporations Law that a meeting be called to consider a scheme of arrangement whereby it was converted from a limited liability company to a no liability company, and informed the Court that it neither consented to the application nor opposed it. An order was made, and the meeting held pursuant to the order agreed to the scheme. The ASC then learned that the Full Court of the Federal Court had decided that the change sought could not be effected pursuant to s 411, and it appeared on the application by the company for the scheme to be approved and unsuccessfully opposed the application. The High Court, in its joint judgment (at 506), pointed out that the ASC had not by its statement to the Supreme Court committed itself to supporting the scheme of arrangement, so that there was no foundation for an equitable estoppel "of the kind upheld in Verwayen ". It went on to hold that the ASC's departure from the position it took up at the first hearing in the Supreme Court - […] was neither "unjust" nor "unconscionable", to use the expressions found in Thompson v Palmer (1933) 49 CLR 507 at 547, per Dixon J, and Verwayen (1990) 170 CLR at 410-411, 429, 436, 440-441, 453-454, 500-501. The page references in Verwayen are to the judgments of, respectively, Mason CJ, Brennan J, Deane J (twice), Dawson J and McHugh J - two (Deane J and Dawson J) being in the majority and the other three being the minority in Verwayen . 58 Turning now to the present case - and assuming that the circumstances of the defendants' apparent refusal to amend their Grounds of Defence at the trial are sufficient to provide the factual foundation for an equitable estoppel preventing them from obtaining leave to do so on appeal (an issue which does not need to be determined in this appeal) - the issue which would have to be determined in relation to a claim of estoppel is whether the defendants' departure from the stand taken by them at the trial, by seeking leave at the hearing of this appeal to amend their Defence, was unconscionable (or unconscientious) conduct on their part such as to prevent them from making such an application. 59 The detriment which the plaintiff claims if their application on appeal to amend is granted is that he will lose the benefit of a ruling which he says would otherwise necessarily have to be made on the unamended pleadings - that he is entitled to judgment in relation to all three assaults and the claims for trespass and false imprisonment - as the defendants had succeeded only on defences which had not been pleaded. Notwithstanding the criticism I express later of the conduct of those representing the defendants at the trial (see par [62] infra ), I am not satisfied that the defendants' departure from the stand taken by them at the trial can properly be characterised as unconscionable (or unconscientious). That is because they had the benefit of the erroneous ruling by the trial judge that an amendment was unnecessary. The amendment now sought does no more than reflect the issues which the defendants had been permitted to contest at the trial and which had in fact been contested by them. In those circumstances, it seems to me, it is the plaintiff who seeks a tactical advantage from the judge's erroneous ruling rather than the defendants. 60 Accordingly, I reject the plaintiff's argument that the defendants had either waived their right to seek an amendment or that they were estopped from seeking an amendment at this stage. I return now to consider the merits of the defendants' application to amend. 61 There is no doubt in my mind that the issues which the proposed amendment now raises were litigated by the defendants at the trial, and that it was appropriate that they should be contested in such a case. Despite the conduct of their counsel at the trial, the defendants themselves should not, in my opinion, be left with no effective defence to the plaintiff's claim. On the other hand, however, the findings made by the judge in their favour should not be allowed to stand should the amendment be allowed, because the plaintiff was severely disadvantaged by the course followed at the trial by counsel for the defendants and permitted by the judge. 62 If the amendment had been sought and granted at the trial, even at that late stage, there would necessarily have been substantial prejudice to the plaintiff, but that prejudice could have been cured by the grant of an adjournment and an appropriate order for costs. It would have been grossly unfair to the plaintiff to have forced the trial to continue without giving the plaintiff the opportunity to seek particulars and to investigate what evidence was available in order to meet the case identified in those particulars. The issue is not whether the party seeking particulars has adequate knowledge of the actual facts, it is a question of what the other party alleges are the facts, for that is the case he has to meet: Turner v Dalgety & Co Ltd (1952) 69 WN (NSW) 228 at 229; Phillopini v Leithead [1959] SR (NSW) 352 at 359; Emmerton v University of Sydney [1970] 2 NSWR 633 at 635; Bailey v Federal Commission of Taxation (1977) 136 CLR 214 at 219, 220, 221. It is worth recording that, when the judge had overruled the plaintiff's objection that the issues had not been raised by the pleadings, the plaintiff sought from the defendants particulars of the grounds of justification on which they relied and of the facts, matters and circumstances on which reliance was placed for each ground. The reply from the State Crown Solicitor's Office was, incredibly: You are not entitled to the particulars sought. You have never previously requested particulars of the defence, which puts in issue the allegations in the statement of claim. That response reveals a contemptuous disregard of the right of a party to litigation to know the case he has to meet in that litigation. 63 I accept the point made by counsel for the defendants on the appeal that counsel for the plaintiff had not sought at the trial to re-open his case or to recall his client when the pleading issue first arose at the trial, nor did he seek an adjournment or any other form of relief. However, in the atmosphere clearly apparent from the transcript of the trial (where the judge had firmly, but erroneously, stated that there was no need for an amendment and that the plaintiff could not have been surprised by these issues being raised), I am satisfied that the judge would not have granted any adjournment had it been sought. 64 With due respect to the judge, it was quite unreal to suggest that the plaintiff should have assumed that the defendants - despite the almost complete destruction of their case in the criminal proceedings - would raise defences which should have been but which were not pleaded, and that he should have been ready with evidence to meet those defences in case they were raised without warning and without any opportunity either to obtain particulars of the new case should it be raised or to investigate the case identified in those particulars. Such a view is completely at odds with was said in Hameth Pty Ltd v Veron and in Jamieson v Mutual Acceptance Co Ltd , discussed in par [44] supra . In my opinion, the judge's view of the pleadings was wholly unjustified. 65 In my opinion, the necessary consequence of granting the amendment sought by the defendant is that there would have to be a new trial. Justice demands that in the circumstances of this case it be reheard by a different judge. The findings made by Judge Puckeridge in favour of the defendants are necessarily affected by the procedural unfairness which required the plaintiff to fight the trial with one arm tied behind his back, and this Court is in no position to make findings on the evidence as it presently stands for the same reason. 66 I see no acceptable way in which a new trial could be limited. It would be unfair to the plaintiff not to permit him to pursue the causes of action on which he was unsuccessful at the first trial, because of that procedural unfairness which affected his ability to litigate the defences raised by the defendants without warning. It would be equally unfair to the defendants not to permit them to fight the cause of action on which they were unsuccessful, because the judge failed to consider one of the defences of justification which they had raised, that they had used only such force as was necessary in order to arrest the plaintiff. 67 At the time of the events with which this Court is concerned, the law relating to an arrest without a warrant was stated in s 352 of the Crimes Act 1900, but the use of force by a police officer in effecting an arrest was governed by the common law. The police officer may use such force as is reasonably necessary to effect the arrest: Wiltshire v Barrett [1966] 1 QB 312 at 326 (Lord Denning MR) and 331 (Salmon LJ). Relevant to this issue is the obligation of the police officer to ensure that the person to be arrested does not commit any further crime and the likelihood that that person will do so unless prevented: Lindley v Rutter [1981] QB 128 at 137 (Donaldson LJ). In evaluating the 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: McIntosh v Webster (1980) 43 FLR 112 at 123 (Connor J). These three decisions were accepted by this Court as correctly stating the common law, in Woodley v Boyd [2001] NSWCA 35 at [37] (Heydon JA). See also Lippl v Haines (1989) 18 NSWLR 620 at 623-624 (Gleeson CJ). Section 231 of the Law Enforcement (Powers & Responsibilities) Act 2002 now provides: 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. That provision appears to reflect the common law. 68 The judge's failure to consider that defence was, of course, a direct result of the course adopted by counsel then appearing for the defendants not to plead these defences, but again I do not believe that the defendants themselves should suffer as a result of that conduct. The two remaining police officers have their reputations to uphold, whatever may be the financial arrangements between them and the third appellant (the State of New South Wales). There is, moreover, considerable force in the submission made by the defendants that the judge misdirected himself in relation to the issue of self-defence raised by them which he had rejected, as he erroneously appeared to believe that the defence was restricted to what was said in the police handbook as to the use of capsicum sprays. That handbook would have been directly relevant to a claim based on negligence in the use of the spray, but it did not necessarily limit what was reasonably necessary by way of self-defence to a perceived attack. 69 The plaintiff has submitted that there should be no new trial because, whatever the state of pleadings at the trial, he was still necessarily entitled to succeed on all three causes of action pleaded - trespass, assault and false imprisonment - because the three police officer defendants were trespassers. That submission requires an examination of the plaintiff's challenge to the judge's finding that the police officers had authority to enter into the car park of his hotel to carry out a breath analysis on the driver of a motor vehicle parked there, and to remain there after being asked to leave in order to complete the breath test (see par [21] supra ). This was ground of cross-appeal 1(a). Counsel for the plaintiff accepted during the hearing of the appeal that the trespass alleged relates to the period from when the police officers failed to leave the car park on being ordered to do so. 70 The incident has already been referred to briefly (at par [8] supra ). The plaintiff gave evidence that, after his previous argument with Sgt Hunt in which the plaintiff accused the sergeant of harassing him (see par [7] supra ), he saw the three police officer defendants had returned in the police vehicle and were performing a breath test on the driver of a motor vehicle in the car park. He spoke to the defendant Det Sen Const Davis (who had died before the trial) and said: Peter this is looking like police harassment. I want you to get out of here, this is over the top. It was at that stage, the plaintiff said, that the defendant Const Pringle had shouted at him alleging that he had been assaulted by the plaintiff. This led to him being sprayed with capsicum the first time. 71 It is accepted by all parties that, in the absence of notice of any express reservation or limitation, the occupier of a hotel car park grants an implied licence to persons to enter that car park to carry out any lawful activity in association with the premises: Barker v The Queen (1983) 153 CLR 338 at 364-365, 347; Halliday v Nevill (1984) 155 CLR 1 at 6-7; TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 at [29], [31]. Such an implied licence may, however, be withdrawn by the occupier at any time. The plaintiff relies on the statement quoted in the last paragraph as constituting such a withdrawal. The judge found that, rather than demand that the police officers leave the car park, the plaintiff was challenging them to fight. Such a finding was perhaps open to the judge on the evidence, although the effect of what was said appears to me to be an express withdrawal of the implied licence to the police officers to remain in the car park. Be that as it may, the issue has turned not on the effect of what was said, but rather on whether the police officers were, as the judge went on to hold, entitled by the Road Transport (Safety and Traffic Management) Act to remain in the car park in order to complete the breath test being administered there. 72 The plaintiff has also submitted that the implied licence was for the benefit of patrons only, and not for the benefit of police officers who wished to breath test patrons or prospective patrons in the car park. I do not accept the limitation which the plaintiff seeks to impose on the implied licence. In the present case, it may safely be assumed that the driver being breath tested by the police - whom they had seen drive into the car park and noticed the manner of her driving - was a prospective patron. In my opinion, in the absence of notice of any express reservation or limitation, the implied licence extends to those persons who have a legitimate reason associated with the hotel or its business (including its patrons and prospective patrons) either to gain access to the hotel or to park their vehicles there for that purpose. The implied licence would, for example, extend to persons doing or wishing to do business with the publican (otherwise than purchasing alcohol), such as food suppliers. If a crime were committed or threatened in the hotel or its car park, the implied licence would extend to persons such as police and ambulance officers. 73 Turning now to the Road Transport (Safety and Traffic Management) Act , s 13(1) gives power to a police officer to require the driver of a motor vehicle on "a road or road related area" to undergo a breath test if that officer has reasonable cause to believe that a person was such a driver. This permits random breath testing. A breath test is defined by the Dictionary in Sched 2 of the Act as a test for the purpose of indicating the concentration of alcohol present in the driver's blood. Section 14 permits the police officer to arrest the driver without warrant where the breath test indicates a blood alcohol content of not less than 0.05 g in 100 ml of the driver's blood (I leave out of account provisional and special category drivers). Section 15 then permits the officer to require the driver to submit to a breath analysis, usually performed in a police station, which ascertains the precise level. 74 Two definitions in the Dictionary to the Act are relevant here. A road means, effectively, an area that is open to or used by the public for the driving of motor vehicles. The definition of a road related area needs to be quoted in full: road related area means: (a) an area that divides a road, or (b) the footpath or nature strip adjacent to a road, or (c) an area that is open to the public and is designated for use by cyclists or animals, or (d) an area that is not a road and that is open to or used by the public for driving, riding or parking vehicles, or (e) a shoulder of a road, or (f) any other area that is open to or used by the public and that has been declared under section 15 of the Road Transport (General) Act 2005 to be an area to which specified provisions of this Act or the regulations apply. Paragraph (f) has no application in this case. It is accepted by all parties that the only paragraph which could be relevant to the present case is par (d), which must nevertheless be seen in the context of the whole definition. 75 The plaintiff has submitted that this paragraph of the definition is insufficient to permit entry on private property, as such a right must be expressly authorised by the statute. The High Court has held that, at common law, a police officer is not authorised, without the consent of the person in possession or entitled to possession of the property and without any implied leave or licence, to go on private property in order to serve a summons, and that, if he does go on to the land to do so, he is liable in trespass: Plenty v Dillon (1991) 171 CLR 635 at 644-645, 653-654. A statutory authority to engage in what would otherwise be tortious conduct must be clearly expressed in unmistakable and unambiguous language: Coco v The Queen (1994) 179 CLR 427 at 435-436. See also TCN Channel Nine Pty Ltd v Anning at [24]-[28]. There is a presumption that, in the absence of any express provision to the contrary, the legislature did not intend to authorise such conduct, but that presumption is rebuttable and will be displaced if there is a clear implication that authority to enter or remain on private property was intended - for example, where such tortious conduct is a necessary implication in order to prevent the statutory provision from becoming inoperative or meaningless, bearing in mind nevertheless that mere inconvenience in carrying out an object authorised by statute is not a ground for eroding fundamental rights: Coco v The Queen at 635-636. 76 Although each of the other paragraphs in the definition of a road related area refers to public land, par (d) necessarily contemplates a person being required to undergo a breath test on private property. An area that is not a road and that is open to or used by the public for parking vehicles would include, for example, large shopping complex car parks, where the risk of injury caused by drivers with a blood alcohol content higher than permitted is obvious. The statute expressly provides (by s 17(d)) that a person may not be required to undergo a breath test at that person's place of abode. Such an express restriction would not have been necessary if the legislature had not intended to authorise entry on to private property for the purpose of administering a breath test. Section 17(d) of the Act also provides that a person may not be required to undergo a breath test after the expiration of two hours from driving the vehicle. That restriction sufficiently demonstrates why the common law presumption upheld by the High Court was intended to be displaced in this statute. To interpret the statute otherwise would permit a driver whose blood alcohol percentage is higher than permitted to drive his vehicle around a shopping complex car park during that period of two hours, which clearly would render inoperative one of the purposes of the statute, which is to improve safety on roads and road related areas (s 3(c)). The rebuttable presumption that the statute does not authorise trespass is necessarily displaced. 77 In the present case, of course, the issue is not whether the police officers were entitled to enter the car park in order to perform a breath test. Pursuant to the implied licence to enter, they were already in the process of requiring the driver of the vehicle they had seen drive into the hotel car park to undergo a breath test before the plaintiff ordered them to leave. The issue is therefore whether they were entitled to remain in the car park in order to complete that process notwithstanding the withdrawal of the implied licence to enter. 78 The police officers had performed a breath test, but had then been informed by the driver that she had recently consumed some alcoholic liquor, vitiating the results of that test. In accordance with the usual procedure, the police officers had permitted the driver to wait a short period so that a further test would not be affected by "mouth alcohol". This evidence was accepted by the trial judge. There was no challenge to the evidence of Const Pringle that he had returned to the police vehicle to obtain another "tube" for that purpose at the time when the plaintiff ordered them to leave. In my opinion, the breath test contemplated by the statute is one which produces a valid result, so that the whole procedure should be regarded as the one breath test. That test was therefore incomplete when the plaintiff ordered the police officers to leave. 79 The "clear implication" in the statute for which the defendants have argued is that they were lawfully entitled to remain on private property notwithstanding that their implied licence had been withdrawn, because the test had to be completed to enable the purpose of the statute to be fulfilled. The plaintiff has replied that the defendants could have required the driver to leave the car park and move into the public laneway running alongside to complete the breath test. Counsel for the plaintiff pointed out that the statute focuses its attention on the place where the vehicle is being driven, not on the place where the breath test is to be undertaken. Nevertheless, the place where the breath test is undertaken will almost inevitably be where the vehicle was stopped by the police, which must ordinarily be on either a road or a road related area. Counsel for the plaintiff conceded that a police officer would have no power, for example, to direct a driver to leave his place of abode in order to undergo the breath test. It is also relevant to note that, before directing a driver to submit to a breath analysis (which is usually conducted at a police station) following an unfavourable breath test, the police officer has power to arrest the driver (see par [73] supra ). 80 The driver of the vehicle had in fact left her vehicle, and the first part of the breath test had taken place near to her vehicle but inside the car park. Whilst there may have been no difficulty, if the driver of the vehicle was willing to do so , for the driver and the police to leave the car park for the purposes of the administering the remainder of the breath test, I do not accept that the availability of a different course of conduct destroys a police officer's authority to remain on private property in order to complete a breath test notwithstanding that the implied licence to the police to be in the car park had been withdrawn. In any event, the plaintiff did not seek to raise such an issue at the trial. Indeed, his counsel's cross-examination of the driver appears to have been based in part on the suggestion that the police officers had determined to breath test her simply because she had cut-off their unmarked vehicle when she entered the car park, which would appear to contradict any willing cooperation on her part. It is unnecessary in the present case to determine whether a police officer has the power to direct a driver to move from a road related area to another place in order to undergo a breath test. 81 In my opinion, based on the findings of fact the judge made, the only conclusion open to him as a matter of law was that, notwithstanding the plaintiff's order to leave, the three police officer defendants remained lawfully in the car park whilst completing the breath test of the driver of the vehicle they had seen drive in: Halliday v Nevill at 6. They were not trespassers as alleged by the plaintiff, and the plaintiff's claim in trespass was correctly dismissed. It follows that the argument put by the plaintiff that, because the police officers were trespassers, he would necessarily be entitled to succeed in relation to his claims for assault and false imprisonment (see par [69] supra ) is rejected, and the cross-appeal must be dismissed. 82 It also follows that, if the amendment now sought by the defendants to plead those defences which were irregularly litigated at the trial is granted, the verdicts would have to be set aside, and there would have to be a new trial on all issues, for the reasons stated in pars [61]-[66] supra . The only way in which the resulting prejudice to the plaintiff could be met is by a costs order in his favour. I turn now to the nature of the costs order to be made. 83 I am satisfied that those representing the defendants at the trial were solely to blame for the consequences of their failure to plead the special defences now to be pleaded. The usual order would be that the defendants pay the plaintiff's costs thrown away by the amendment. It has already been made clear that that failure produced substantial prejudice to the plaintiff (see pars [61]-[65] supra ). Even putting to one side my criticism of those representing the defendants at the trial (expressed in par [62] supra ), the circumstances of this case are such as to require the defendants to pay the plaintiff's costs of the whole first trial in any event, as there is nothing of value in that trial which can be preserved. An order which was often made in such a case was that those costs be assessed on a solicitor and client basis. Such costs are not mentioned in s 98(1)(c) of the Civil Procedure Act 2005, which Act applies to proceedings commenced before the commencement of that Act: Sched 6, cl 5. In my opinion, the prejudice to the plaintiff would appropriately be met by an order that his costs of the whole trial be paid by the defendants assessed on an indemnity basis. 84 I would therefore grant the amendment sought by the defendants, set aside the verdicts, order a new trial on all issues and make such an order for costs. That being the result of the appeal, it is strictly unnecessary to deal with the other issues raised by the parties on appeal but, as some of the matters were fully argued, it may be of some assistance to the trial judge at the new trial if some reference were made to three of those matters. 85 The first of those matters is the defendants' complaint that the judge's finding that the use of the capsicum spray by Const Pringle was not justified as a response to apprehended violence from the plaintiff was inconsistent with his finding in favour of Const Hutchinson, and perverse. Insofar as that complaint is limited to self-defence as a justification, it is sufficient to say that, on the facts found by the judge, the circumstances in which Const Pringle used the spray were clearly different from those in which Const Hutchinson used the spray. On each occasion Const Hutchinson used the spray, the plaintiff was acting in such a manner as to indicate the immediate use of violence by him (see pars [14] and [18] supra ). When Const Pringle used the spray, according to the facts found by the judge, the plaintiff at that stage "may have been affected" by the first spray by Const Hutchinson, he was holding his hands crossed in front of his face (to cover his eyes) and he had nothing in his hands. On those facts, there was no inconsistency in the judge's findings based on self-defence as justification. 86 The second of the matters to which reference should be made is the defendants' complaint that, despite finding that Const Hutchinson had not assaulted the plaintiff, the judge erroneously held him jointly liable for the assault by Const Pringle. 87 As pleaded in his Statement of Claim, the plaintiff's claim for assault was that "the first to third defendants did assault and beat the plaintiff, causing him injury and damage". The particulars were that "the first to third defendants then assaulted the plaintiff by spraying him with capsicum spray and handcuffing him while purporting to arrest him". That claim could have been more specifically pleaded, but in my view it is sufficiently widely expressed as to include the joint participation by each of the police officers in each of the three assaults on the plaintiff alleged. 88 In his initial judgment, and before hearing argument on the point, the judge found that both police officers "were really jointly participating in the events". He pointed out in the subsequent argument on this issue that both officers sprayed the plaintiff, and he posed the question whether the action by Const Pringle was a frolic of its own, or whether it was "so far removed" from the actions of Const Hutchinson that there should be different verdicts. He thought that it was not "going to make a great deal of difference [as] the State must be vicariously liable". He thought that the only question was whether or not it would affect any costs order, and he was concerned that the plaintiff may have to pay the costs of the second defendant. In his second judgment, which dealt only with the issue of joint liability, the judge said: Counsel for the plaintiff has submitted that Const Hutchinson, by virtue of his temporal and physical proximity to Const Pringle, was participating in the commission of a tort by Const Pringle. There certainly was a temporal and physical proximity by Const Hutchinson in the tort committed by Const Pringle.

Whilst the tort committed by Const Pringle was independent and separate, I do not consider that Const Hutchinson was so independent or separate that the verdict in favour of the plaintiff should not also be entered against him. He then entered verdicts in favour of the plaintiff against both police officers and the State of New South Wales. 89 Quite apart from the worrisome concern he expressed as to the effect his findings would have on the incidence of costs, and again with due respect to the judge, he appears to have seriously misdirected himself as to the nature of a joint liability in tort. 90 In Dougherty v Chandler (1946) 46 SR 370 at 375, Jordan CJ said: If a number of persons jointly participate in the commission of a tort, each is responsible, jointly with each and all of the others, and also severally, for the whole amount of the damage caused by the tort irrespective of the extent of his participation. Although counsel for the defendants in the appeal sought to distinguish it as being referable solely to defamation actions, this statement was one of general principle and it applies in all actions based on tort. The Chief Justice on the same page expressly described the statement as one "of general principles" applying to "persons jointly concerned in the commission of a tort", and went on to say that those principles were "just as applicable to joint defamation as to any other joint tort". 91 In Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574, Brennan CJ, Dawson & Toohey JJ in their joint judgment (at 580-581) said: As was said in The "Koursk" [1924] P 140 at 159-160, for there to be joint tortfeasors "there must be a concurrence in the act or acts causing damage, not merely a coincidence of separate acts which by their conjoined effect cause damage". Principal and agent may be joint tortfeasors where the agent commits a tort on behalf of the principal, as master and servant may be where the servant commits a tort in the course of employment. Persons who breach a joint duty may also be joint tortfeasors. Otherwise, to constitute joint tortfeasors two or more persons must act in concert in committing the tort. Torts of all kinds may be joint and defamation is no exception. Gummow J said (at 600): In England, Australia and New Zealand, criteria for the identification of joint tortfeasors are to be found in expressions used in The "Koursk" [1926] P 140. Scrutton LJ (at 155) there spoke of "two persons who agree on common action, in the course of, and to further which, one of them commits a tort", saying that in such a case there is one tort committed by one of them "in concert with another". Sargant LJ (at 159-160) accepted the proposition that persons are joint tortfeasors when their "respective shares in the commission of the tort are done in furtherance of a common design" so that those who "aid or counsel, direct, or join" in the commission of the tort are joint tortfeasors. He also said (at 606): The technical rule as to the indivisibility of the cause of action so established in English common law, was accepted in this Court by Taylor J in Ramsay v Pigram (1968) 118 CLR 271 at 285-287, after it had been expounded by Jordan CJ in a series of judgments. The footnotes to that statement include Dougherty v Chandler at 375. Gaudron J (at 591) agreed with the reasons given by Gummow J. 92 There is no evidence that Const Hutchinson participated in a common design by Const Pringle to assault the plaintiff unlawfully. The joint enterprise identified by counsel for the plaintiff on appeal was one "to arrest and subdue the plaintiff". If that was the only joint enterprise in which Const Hutchinson was involved, he was not liable for the action of Const Pringle in the course of that particular enterprise in assaulting the plaintiff unlawfully unless - by way of analogy to a joint criminal enterprise - such an assault was a possible incident of that enterprise which was within his contemplation at the time he joined it: Johns v The Queen (1980) 143 CLR 108 at 130-131; McAuliffe v The Queen (1995) 183 CLR 108 at 113-116, 233-236. That is not how the case was put at the trial and, as the judge held, the tort committed by Const Pringle was "independent and separate" (see par [88] supra ). 93 On appeal, the plaintiff has relied on a statement by the late Professor Fleming in his last edition (the ninth edition, 1998) of The Law of Torts , in the chapter "Joint Tortfeasors and Contribution", at 289: Knowingly assisting, encouraging or merely being present as a conspirator at the commission of the wrong would suffice. Professor Fleming appears to have used the word "conspirator" as meaning a party to a joint enterprise to commit a tort. It is, in my respectful opinion, unwise to equate participation in a conspiracy with participation in a joint enterprise. In the criminal law, a joint enterprise is merely a mode by which a crime is committed, whereas a conspiracy is itself a crime. Similarly, whereas a conspiracy requires proof only that several individuals agreed to commit a specific crime, a joint enterprise requires that the parties acted in furtherance of such an agreement. 94 However, taking Professor Fleming's statement in the way he apparently intended it, that statement does not assist the plaintiff in this case. As this Court explained, in Thompson v Vincent (2005) 153 A Crim R 577 at [140], the mere presence of a person at the time a tort is committed by another person does not render that person responsible for that tort. Such an interpretation overlooks the words "as a conspirator" in the passage quoted. There was no evidence in this case that Const Hutchinson either shared Const Pringle's intention to assault of the plaintiff unlawfully or contemplated such as assault as a possible incident of the joint enterprise to arrest and subdue the plaintiff. On the evidence given, he did not either "join in" or act "in concert" with Const Pringle in his unlawful assault on the plaintiff. 95 Had it not been for the order I have proposed that there be a new trial, I would have ordered that the verdict entered in favour of the plaintiff against Const Hutchinson be set aside and a verdict be entered in favour of Const Hutchinson. If the evidence at the new trial concerning "joint enterprise" remains relevantly to the same effect as the evidence in the first trial, there can be no joint liability of Constable Hutchinson for any tort found to have been committed by Constable Pringle. 96 The last of the matters to which reference should be made is the defendant's complaint that the damages awarded by the judge were excessive. 97 The judge found that the plaintiff was shocked, he suffered "intense" pain in his face and he was blinded when sprayed the first time by Const Hutchinson. The plaintiff felt "excruciating" pain, and he could only open his eyes for occasional glimpses, after being sprayed shortly thereafter by Const Pringle. When sprayed again by Const Hutchinson, the plaintiff said that his face felt as if it were "on fire", an assertion which the judge appears to have accepted. As both of the episodes when Const Hutchinson sprayed the plaintiff were held to have been justified, the only pain and suffering for which the plaintiff was entitled to compensation was the elevation of the "intense" pain suffered when Const Hutchinson sprayed him to the "excruciating" pain he felt after being sprayed by Const Pringle. The remainder of the plaintiff's complaints of pain were irrelevant to the issue of damages. 98 The judge recited the evidence of the plaintiff that he remained angry as to what had occurred and with the wrong he said had been done to him, and that he suffered from panic attacks by way of sweating and palpitations, he had unrealistic fears and he found it difficult to function. He also recited the evidence of a psychiatrist that these conditions led to a major depression with associated anxiety and panic attacks, and the plaintiff was totally unfit for any kind of work because of that condition. The judge subsequently accepted that Const Pringle's assault had materially contributed to "further" or "increased" depression, but he rejected the claim for economic incapacity. He therefore appears to have accepted all of the depression evidence he had recited. Again, the only compensation to which the plaintiff was entitled by way of damages was for the limited consequences which resulted from the spraying by Const Pringle. He was not entitled to damages for the consequences of all three incidents of spraying. 99 The plaintiff gave a history to a psychiatrist that he had felt humiliated in front of his customers as a result of the police conduct in the spraying episodes. The judge recited this fact in his judgment, without suggesting that he recognised any limitation on its relevance resulting from the findings he had made as to the liability of the defendants. 100 The judge expressed his findings as follows: I consider that the assault by Const Pringle on the plaintiff did result in the plaintiff feeling the pain in the face which he described. That assault also materially contributed to further depression by the plaintiff from [ sic ] which he had been receiving treatment for some time prior to 1 January 2000. On the evidence of the Northern Rivers Health Service that depression was significant, and resulted in suicidal ideations.

I find that the increased depression would have ceased in a period of six to nine months. […] Taking into account the pain suffered from the assault, and the depression, and suicidal ideation, which I consider resulted or at least was materially contributed to by the assault, I allow the plaintiff the sum of $50,000 by way of general damages. The judge rejected the plaintiff's claim for economic loss, and he dismissed the claim for aggravated and exemplary damages. 101 The judge did not in his judgment on damages expressly turn his mind to the limitations imposed on the plaintiff's right to recover compensation as a result of the findings in favour of Const Hutchinson to which I have referred. Indeed, at one stage he referred in his judgment to the plaintiff having brought his action "for assault and false imprisonment", without referring to the fact that the false imprisonment claim had failed. 102 I accept that it may not have been a simple task to assess what a suitable award should for the very short-term aggravation of the effects of the first spraying by Const Hutchinson caused by the spraying by Const Pringle and for the similarly restricted consequences of the one spraying for which the plaintiff was entitled to be compensated. Unfortunately, from the size of the amount awarded, the judge does not appear to have to given any consideration to those limitations. 103 I regard the damages awarded to have been gravely excessive and, had there not been an order for a new trial, I would have set the award aside and assessed a very considerably reduced amount as the damages to which the plaintiff was entitled on the facts found by the judge. In the light of the plaintiff's appeal against the judge's decision not to grant aggravated and exemplary damages, I should add that that decision was well open to the judge on the evidence. 104 I turn finally to the costs of the appeal and cross-appeal. The defendants have had substantial but not complete success. In my view, bearing in mind the way in which the various issues have been determined in the appeal and cross-appeal, a suitable order would be that the plaintiff pay 60% of the defendants' costs of the appeal and the cross-appeal, to be assessed (subject to any offers of compromise which may have been made) on a party and party basis. 105 I propose that the following orders be made: 1. The amendments sought by the defendants to their Grounds of Defence are allowed. 2, The defendants' appeal is allowed and the plaintiff's cross-appeal is dismissed. 3. The verdicts are set aside, and there is to be a new trial of the action. 4. The defendants are to pay the plaintiff his costs of the whole of the first trial assessed on an indemnity basis. 5. The plaintiff is to pay 60% of the defendants' costs of the appeal and cross-appeal assessed on a party and party basis and, if eligible, he is to have a certificate under the Suitors' Fund Act 1951. ----------------------------------------

29/09/2006 - Date of judgment omitted from coversheet. - Paragraph(s) coversheet

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