148The primary judge awarded compensatory damages for the assault in the sum of $5,000. To that he added a further $20,000 to reflect elements of aggregation and separately awarded $25,000 by way of exemplary damages.
149The appellant did not seek to challenge his Honour's award of $5,000 for what I will describe as ordinary compensatory damages. It did challenge the additional aggravated damages of $20,000 and the exemplary damages of $25,000. It was submitted that the normal compensatory damages and the aggravated compensatory damages were awarded otherwise then in accordance with the principle identified by Hodgson JA in State of New South Wales v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496 at [131]. The appellant further submitted that the award of exemplary damages was made without determining the necessity for that rare remedy given the quantum of compensatory damages: Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1 at [12] and [20]; New South Wales v Ibbett [2006] HCA 57; (2006) 229 CLR 638 at [34]. Finally, although it was conceded that some aggravated damage was justified, it was submitted that the award of $25,000 for both types of compensatory damages was outside the range of a properly exercised discretion when guided by what Hodgson JA said in Riley.
150In his argument in support for leave to cross appeal, the respondent submitted that in the light of the evidence accepted by the primary judge the finding that the amount of $5,000 awarded by the primary judge for ordinary compensatory damages was manifestly inadequate with respect to a person who had been kicked, punched, struck with a baton several times, thrown to the ground and kneed in the back in a violent manner. The evidence accepted by the primary judge found that Constable Barnes used his baton to strike the respondent, Constable Arapa kneed the respondent's upper right thigh a number of times and Constable Wade punched him on his thigh at the same time as Constable Barnes was wielding his baton. This evidence was supported by the description by Ms Pateman of the police conduct. In addition it was submitted that his Honour was in error in classifying the respondent's injuries sustained in the assault as being "minor". Furthermore the award did not properly reflect the terrifying experience to which the respondent was vulnerable with particular reference to his psychiatric condition. Accordingly, it was contended that leave should be granted in relation to the appeal against the award of $5,000 for ordinary compensatory damages which should be increased to $20,000. The respondent accepted the amounts awarded by the primary judge in respect of aggravated and exemplary damages.
151In Riley Hodgson JA, with the agreement of Sheller JA on the issue of damages and Nicholas J, said (at [131]):
"In my opinion, the only principled explanation must be along the following lines. It is extremely difficult to quantify damages for hurt feelings. In cases of hurt feelings caused by ordinary wrong-doing, of a kind consistent with ordinary human fallibility, the court must assess damages for hurt damages neutrally, and aim towards the centre of the wide range of damages that might conceivably be justified. However, in cases of hurt to feelings caused by wrong-doing that goes beyond ordinary human fallibility, serious misconduct by the defendant has given rise to a situation where it is difficult to quantify appropriate damages and thus where the court should be astute to avoid the risk of under-compensating the plaintiff, so the court is justified in aiming towards the upper limit of the wide range of damages which might conceivably be justified."
152Also relevant to his Honour's approach was what he said at [133]:
"This means that, if a court has awarded damages for hurt feelings as part of ordinary compensatory damages, the award of aggravated damages must only be for the difference justified by this approach, that is, an award of so much as is necessary to bring the damages up to the upper end of the available range. The approach also means, I think, that aggravated damages can be a matter of degree: the worse the defendant's conduct, the further from the centre of the range and towards the upper limit of the range the court may be justified in going."
153In the present case his Honour awarded separate amounts for ordinary compensatory damages, aggravated damages and exemplary damages. There is no doubt that he was required to assess exemplary damages as a separate and distinct head of damage to compensatory damages. This is because, as Spigelman CJ observed in State of New South Wales v Ibbett [2005] NSWCA 445 at [83] in a passage cited in the judgment of the plurality in the High Court at [34], in the case of aggravated damages the assessment is made from the point of view of the plaintiff whereas in the case of exemplary damages the focus is on the conduct of the defendant. Nevertheless, as the Chief Justice pointed out in the same paragraph, it was necessary to determine both heads of compensatory damages before deciding whether or not the quantum is such that a further reward is necessary to serve the objectives of punishment or deterrence or, if there be a separate purpose, condemnation.
154At [35] of Ibbett, the plurality in the High Court noted that in cases where the same circumstances increased the hurt to the plaintiff and also made it desirable for a court to mark its disapprobation of that conduct, the court may choose to award one sum which represents both heads of damages and no element more than once. In the present case there was some debate as to whether aggravated damages should be awarded separately to ordinary compensatory damages though I do not think it is necessary to resolve that issue. Although the passages from the judgment of Hodgson JA in Riley would seem to indicate that both heads of compensatory damages should be awarded as one and not separately, I do not think that his Honour was seeking to lay down a fixed rule.
155In the present case, there can be no doubt that there was a significant element of aggravation with respect to the assault upon the respondent. Thus the appellant did not seek to cavil with his Honour's finding at [182] that:
"[t]he assault was committed in an area which was comprehended within the plaintiff's place of business. The humiliation of being beaten was observed by employees and, being a "road related area" as asserted by Constable Arapa when seeking to administer the breath test, was open to the public, a gathering of which also would have viewed the humiliation of the plaintiff."
156At [180] the primary judge not only found that the physical injuries sustained by the respondent in the assault should be classified as "minor" but also that any aggravation of his psychological condition was transient and lasted no longer than three months. The Court was not referred to any medical evidence which would justify any different conclusion at least so far as there was any aggravation of the respondent's psychological condition. In this respect the appellant relied on the events of 7 March 2006 which, so it was submitted, involved the respondent in a clash with the police that would have had a far greater impact upon his psychological condition than the assault which occurred on 1 March.
157In my opinion there was a serious element of aggravation in the assault of the respondent in the presence of his employees and other members of the public. There could be no doubt that it was a humiliating experience. I also consider from the photographs in evidence, that the physical injuries sustained by the respondent, although not serious and lasting, were somewhat understated by his Honour when he described them as minor.
158Adopting the approach of Hodgson JA in Riley, in my view the middle of the range of ordinary compensatory damages in respect of the assault was $10,000 - $12,000. The aggravating element in the present case was, I consider, of significance. The upper end of the range combining both ordinary and aggravated compensatory damages should in my view be assessed at $30,000. Accordingly that amount should be substituted for the sum of $25,000 for both heads of compensatory damages awarded by the primary judge.
159With respect to exemplary damages, the conduct of the police was such as to attract the opprobrium of the Court. During the course of argument on the appeal their conduct was described as appalling. The respondent was set upon by three policeman in circumstances that his Honour found to involve the use of excessive and unreasonable force. Although the amount of exemplary damages in the sum of $25,000 awarded by the primary judge is towards the upper end of the range, I would not regard it as outside that range justifying appellate intervention. Accordingly the appellant's challenge to the quantum of exemplary damages fails.