State of New South Wales v. Riley [2003] NSWCA 208

Court of Appeal (NSW)|2003-04-15|Before: Sheller JA, Hodgson JA, Nicholas J

CITATION : State of New South Wales v. Riley [2003] NSWCA 208 HEARING DATE(S) : 14 and 15 April 2003 JUDGMENT DATE : 1 August 2003

JUDGMENT OF : Sheller JA at 1; Hodgson JA at 26; Nicholas J at 141 DECISION : 1. Appeal allowed to the extent of reducing the respondent's damages by $85,000.00 to $185,307.42. 2. Appeal otherwise dismissed. 3. Cross-appeal dismissed. 4. Respondent to pay one-half of the appellant's costs of the appeal and cross-appeal, and to have a suitor's fund certificate in respect of his costs of the appeal, if otherwise entitled. 5. Leave to make submissions on the costs below, in accordance with the judgment.

CATCHWORDS : DAMAGES - Tort - Assault - False imprisonment - Psychological damage - How aggravated damages differ from ordinary compensatory damages - Exemplary damages - Need for more than ordinary human fallibility - EVIDENCE - Proof on balance of probabilities - Injury alleged to be caused while plaintiff in police custody - Mechanism of injury not established - Whether inference open that injury caused by negligence of police - TORT - Assault - False imprisonment - Injury an unintended and indirect consequence - Whether damages recoverable - Whether contributory negligence applicable - TORT - Assault - False imprisonment - Arrest by police - No explanation given to person arrested - Defence of necessity - Defence of opinion under Mental Health Act - MENTAL HEALTH - Confinement and restraint of mentally ill persons - Opinion of police officer that person mentally disurbed and has committed an offence - Arrest and detention - Whether explanation required Crimes Act 1900 ss.352, 357(2), 357E LEGISLATION CITED : Law Reform (Miscellaneous Provisions) Act 1965, ss.8-9 Mental Health Act 1990, ss.20-22, 24, 27, 29-30 Motor Accidents Act 1998, ss.3, 40 Adams v. Kennedy (2000) 49 NSWLR 78 Barley v. Paroz, Qld. Supreme Court, 4/4/79 Brazil v. Chief Constable of Surrey [1983] 1 WLR 1155 Cassell & Co. Ltd. v. Broome [1972] AC 1027 Director of Public Prosecutions v. Serratore (1995) 38 NSWLR 137 Christie v. Leachinsky [1947] AC 573 Fontin v. Katapodis (1962) 108 CLR 177 Gray v. Motor Accidents Commission (1998) 196 CLR 1 CASES CITED : Hoebergen v. Koppens [1974] 2 NSLR 597 Horkin v. North Melbourne Football Club Social Club [1983] 1 VR 153 Lamb v. Cotogno (1987) 164 CLR 1 Lane v. Holloway [1968] 1 QB 397 Pedro v. Diss (1980) 72 CrimAppR 193 Perkins v Police (1988) 1 NZLR 257 Quinn v. Leatham [1901] AC 495 Sindle v. New York City Transit Authority (1973) 352 NYS2d 183 Venning v. Chin (1974) 10 SASR 299 Whitfeld v. De Lauret & Co. Ltd. (1920) 29 CLR 71 PARTIES : State of New South Wales - appellant Jonathon Riley - respondent FILE NUMBER(S) : CA 40769/02 COUNSEL : Mr. J. Maconachie QC with Mr. P. Saidi for appellant Mr. R. Toner SC with Mr. C. Heazlewood and Ms. S. Walsh for the respondent SOLICITORS : I.V Knight, Crown Solicitor, Sydney for appellant Griffiths Tierney, Bega for respondent

LOWER COURT District Court JURISDICTION : LOWER COURT DC 2418/00 FILE NUMBER(S) : LOWER COURT Phegan DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40769/02 DC 2418/00

SHELLER JA HODGSON JA NICHOLAS J

Friday 1 August 2003 STATE OF NEW SOUTH WALES V. RILEY Headnote FACTS: The respondent created a disturbance by apparently discharging a firearm, and was later arrested by police. An officer in charge of the arrest formed the opinion (referred to in s.24 of the Mental Health Act) that he was mentally disturbed and had committed an offence. The respondent was placed in a police wagon handcuffed and once inside, threw himself from side to side. The respondent was taken to a hospital. Police gave him no explanation for his arrest or detention. The medical superintendent at the hospital scheduled him under the Mental Health Act, and gave the explanation required by the Act. The respondent was discharged three days later. His wrists were injured from the overly tight application of the handcuffs and he suffered psychological injury. A wrist fracture was detected two years later. In an action for damages against the State of NSW, the primary judge held that, because of the absence of information, the police committed assault and false imprisonment, which came to an end when the officer formed the opinion under the Mental Health Act. He held that the wrist fracture was caused, between the time of the arrest and arrival at the hospital, by the negligence of the police. He awarded compensatory damages for assault, false imprisonment and negligence, and aggravated and exemplary damages. However, because the respondent's disregard for his own safety substantially contributed to his injuries the primary judge reduced the compensatory damages for negligence by 40% on the ground of contributory negligence. The State of NSW appealed, and the respondent cross-appealed in relation to the finding that the false imprisonment ended when the officer formed the opinion under the Mental Health Act. HELD: 1 The circumstances did not justify the police in not giving the respondent an explanation for his arrest, and the defence of necessity was not available for the assault and false imprisonment. 2 The Mental Health Act did not take away the right of a person arrested and detained by police to be given an explanation. 3 The inference that the fracture was caused by negligence of the police was open, although the mechanism of the fracture was not identified. 4 Because the false imprisonment continued until the respondent arrived at hospital, the fracture was also a consequence of assault and false imprisonment; but since it was an unintended and indirect consequence, the defence of contributory negligence was still available in respect of this injury. 5 Where compensatory damages are awarded for psychological injury, aggravated damages for the same injury can be no more than additional damages necessary to bring damages to the upper end of the available range. 6 The conduct of the police was not beyond ordinary human fallibility so as to justify aggravated or exemplary damages. **********

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40769/02 DC 2418/00

SHELLER JA HODGSON JA NICHOLAS J

Friday 1 August 2003 STATE OF NEW SOUTH WALES V. RILEY Judgment 7 SHELLER JA: The State of New South Wales has appealed against the decision of Phegan DCJ given on 6 August 2002. His Honour awarded the respondent Jonathan Riley, damages in a total amount of $270,307.42 for injuries suffered as the result of the activities of several State police officers on two occasions, the first extending over 4 and 5 July 1997 and the second on 9 September 1997. The respondent established that the police officers on the first occasion had assaulted and falsely imprisoned him, had trespassed on his land and, in breach of their duty of care to him, had failed to exercise reasonable care for his safety while he was in their custody. The respondent recovered general damages, aggravated damages and exemplary damages for the assault and false imprisonment, general damages and exemplary damages for the trespass and general damages, out of pocket expenses and damages for loss of past and future earning capacity in the claim of negligence. The trial Judge found the appellant liable for the conduct of police officers amounting to assault, battery, false imprisonment and trespass to property on 9 September and awarded general damages but no aggravated or exemplary damages. 8 In large part the appeal was directed to whether aggravated or exemplary damages could be awarded in the circumstances of the case and in particular whether there was double counting between the compensatory and aggravated damages awarded and whether the circumstances, in particular the respondent's provocation, disentitled him to an award of exemplary damages. The appellant did not attack the trial Judge's acceptance of the respondent's evidence so ground 6 of the grounds of appeal was abandoned. 9 I have had the benefit of reading in draft the judgment of Hodgson JA and agree with what his Honour says about these grounds of appeal and the resultant adjustment to the damages recoverable. I also agree with his Honour's conclusion that in the circumstances the Motor Accidents Act 1988 has no relevant application to what happened. 10 The appellant also challenged (ground 9) the amount of damages awarded for false imprisonment on the first occasion having regard to the finding made that whilst the initial apprehension may have been unauthorised, such detention became authorised once the police officers decided to apprehend the respondent and take him to a hospital pursuant to the provisions of s24 of the Mental Health Act 1990 (the Act). The respondent cross-appealed challenging the trial Judge's conclusion that the respondent's unauthorised detention ended once the decision was made to have him dealt with pursuant to the Act. That brought into consideration the only ground of cross-appeal the respondent relied on, namely that the trial Judge had erred in finding that the unlawful detention of the respondent did not continue up until he was scheduled by Dr Beazley at the Moruya Hospital. 11 The argument about whether the unlawful arrest continued beyond the point when the police officers concerned had decided to apprehend the respondent pursuant to s24 of the Act turned upon whether, under the Act, at the time of an arrest the member of the police force was bound to tell the respondent why he was being arrested: see Christie v Leachinsky [1947] AC 573 particularly at 591-2 and Adams v Kennedy (2000) 49 NSWR 78 at 82-86. Perhaps the most compelling reason for such a requirement depends upon its being the corollary of every citizen's right to be free from arrest unless some other citizen, whether a constable or not, has the right to arrest him, namely that he is entitled to resist arrest unless the arrest is lawful. In the words of Lord Simonds at 591 "How can these rights be reconciled with the proposition that he may be arrested without knowing why he is arrested?" 12 Probably in the very early hours of 5 July 1997 after he had been informed that the respondent was behaving in an erratic manner, and of the earlier events of that night and the mention of suicide, Sergeant Wilson agreed that the respondent should be taken to Moruya Hospital for psychiatric assessment. The trial Judge said that it was clear that the instruction to proceed with the respondent to Moruya Hospital was passed on to those officers immediately responsible for his detention. At about 1.30 am on 5 July the vehicle containing the respondent left Fairhaven Point Way for Moruya. The respondent's evidence was that when the vehicle left Fairhaven he was not told where he was being taken. The vehicle travelled with others to Narooma Police Station where it arrived at 2 am and next proceeded to Moruya Hospital where it arrived at about 2.30 am. 13 According to the trial Judge the purpose of taking the respondent to Moruya Hospital was to have him "scheduled" under the Act, that is to say, detained in the hospital on the certificate of a medical practitioner in the form set out in Part 1 of Schedule 2 of the Act; s24(1) and (2). Dr Margaret Beazley undertook the task of giving such a certificate having satisfied herself of the matters listed in s21(1). The trial Judge found that Dr Beazley spoke to the respondent shortly before 3 am. The respondent initially refused to speak to Dr Beazley but later did so in company with another member of the hospital staff, Denise Nash, a registered psychiatric nurse and leader of the Eurobodalla Mental Health team. On the basis of the interview, her observations and other matters reported to her, Dr Beazley "scheduled" the respondent under the Act as mentally disordered. Because of insufficient facilities to ensure the personal safety of the respondent at Moruya it was decided to take him to Kenmore Hospital at Goulburn, the nearest facility with gazetted beds where the respondent could appropriately be kept and supervised. 14 Hodgson JA has set out the relevant provisions of the Act and I need not repeat them. Section 21(1) permits a person to be taken to and be detained in a hospital (other than an authorised hospital) on the certificate of a medical practitioner or an accredited person. Section 22 enables a member of the police force to enter premises, if need be by force, for the purpose of apprehending a person in respect of whom the assistance of the police force is required to take the person to hospital. Expressly subs (3) allows this to be done without the warrant of a justice. Section 24 enables a member of the police force who finds a person in any place who appears to be mentally disturbed to apprehend any such person without the warrant of a justice if the member of the police force believes that person is committing or has recently committed an offence and that it would be beneficial to the welfare of the person that the person be dealt with in accordance with the Act. Similarly a person may be apprehended by a member of the police force if the person has recently attempted to kill himself or herself or it is probable that that person will attempt to do so. Section 27 enables "the appropriate person", that is a magistrate or person employed by the Attorney-General's Department prescribed in certain circumstances, to enter premises, if need be by force, in order to enable the examination or observation of a person who may be a mentally ill person or a mentally disordered person. 15 Section 29(1) provides that a person taken to and detained in a hospital must be examined as soon as practicable (but not more than twelve hours) after the person's arrival at the hospital by the medical superintendent. Such person must not be detained except as provided by ss 37 or 37A after the examination unless the medical superintendent certifies that, in the opinion of the medical superintendent, the person is a mentally ill person or a mentally disordered person. 16 Section 30(1) provides that the medical superintendent must, as soon as practicable, after a person is taken to a hospital under the division, give to the person an oral explanation and a written statement (in the form prescribed by the regulations) of the person's legal rights and other entitlements under the Act. In the form prescribed under the heading "Your Rights", the person concerned is encouraged to read the questions and answers set out "to find out your rights and what may happen to you after you are brought to a hospital." There is reference to the requirement that the person be seen by a hospital doctor not later than twelve hours after that person arrives at the hospital. The person is told that he or she can be kept in hospital against his or her will if certified by the hospital doctor as a mentally ill person or a mentally disordered person. The meaning of those expressions is set out. It is then said: "The hospital cannot continue to keep you against your will unless at least one other doctor also finds that you are a mentally ill person or a mentally disordered person and that at least one of the doctors must be a psychiatrist." The person is told that he or she may be kept in hospital against his or her will if found to be a mentally disordered person only for up to three days excluding weekends and public holidays during which time they must be seen by a doctor at least once every twenty-four hours and if found to be a mentally ill person may be kept in hospital until he or she sees a magistrate "who will hold an inquiry to decide what will happen to you". 17 Under the heading "How can I get out of hospital?" appears: You, or a friend or relative, may at any time ask the medical superintendent to let you out. You must be let out if you are not a mentally ill person or a mentally disordered person or if the medical superintendent thinks that there is other appropriate care reasonably available to you. 18 The document then goes on to deal with mandatory treatment and what is meant by a magistrate's inquiry and what rights that person has at a magistrate's inquiry. 19 In Christie v Leachinsky the House of Lords held that except in special circumstances, which do not exist in this appeal, an arrest without warrant can be justified only if it is an arrest on a charge made known to the person arrested. That is so whether the arrest is made by a police officer or by a private person. The person arrested must be told what is the act for which that person is being arrested; see 593. At 598-599 Lord du Parcq said: The principles established by the authorities are agreeable to common sense, and follow from the governing rule of the common law that a man is entitled to his liberty, and may, if necessary, defend his own freedom by force. If another person has a lawful reason for seeking to deprive him of that liberty, that person must as a general rule tell him what the reason is, for, unless he is told, he cannot be expected to submit to arrest, or blamed for resistance. The right to arrest and the duty to submit are correlative. The principle is applicable both to arrests in execution of civil process and to arrests on the criminal charge. It was stated in this house by Lord Cranworth LC in Hooper v Lane (1859) 6 HLC 443 at 550; [10 ER 1368] when he said that a sheriff 'is bound, when he executes the writ, to make known the ground of the arrest, in order, among other reasons, that the person arrested may know whether he is or is not bound to submit to the arrest.' While this is the general rule, it is certainly true that officers and ministers of public justice, of whom Sir Matthew Hale says in his Pleas of the Crown (vol II, c 10), that they are under a greater protection of the law than private persons, are often justified in making an arrest without a preliminary, or simultaneous, statements of the charge. The law does not encourage the subject to resist the authority of one whom he knows to be an officer of the law. 20 At 600 Lord du Parcq said that the omission to tell a person who is arrested at, or within a reasonable time of, the arrest with what offence he is charged cannot be regarded as a mere irregularity. "Arrest and imprisonment, without a warrant, on a charge which does not justify arrest, are unlawful and, therefore, constitute false imprisonment, whether the person making the arrest is a policeman or a private individual." 21 The same principle applies to other restraints imposed upon persons. In Brazil v Chief Constable of Surrey [1983] 1 WLR 1155 the Queens Bench Division held that a personal search by police officers imposed a restraint on a person's freedom to which he should not be required to submit unless he knew in substance the reason for it; see per Robert Goff LJ at 1162. See also the decision of the New Zealand Court of Appeal in Perkins v Police (1988) 1 NZLR 257 at 262 where Bisson J, delivering the judgment of the Court, said: These common law principles which respect the civil liberties of the individual are reflected and receive to some extent statutory recognition in s60(3) [of the Arms Act 1983, a section enabling members of the police to search suspected persons and seize firearms]. Where there are compelling reasons statutory provisions are made to augment the common law powers of search and arrest without warrant to meet the particular needs of law and order as they arise …. Coming now to consider the provisions of s60(3) of the Arms Act 1983 there is not a specific provision in para (a) or para (b) as to precisely when the person exercising any power must identify himself to and tell the person searched the section and subsection of the Act under which the power is being exercised . We have italicised the verbs as their tense is an indication of when the particular duty is to be performed. In this context the word 'searched' does not necessarily imply the past tense. The duty applies, if not performed at the outset, while the power is being exercised. However, this is a situation in which common law principles which are not expressly excluded nor entirely replaced should supplement the statutory requirements. Accordingly, although s60(3)(b) does not require the constable to name the section and subsection of the Act before commencing the search he should in most cases first inform the person he proposes to search of his identity, if not in uniform, and in a general way state the reason for and authority for the proposed search. This we hold to be a constable's duty at common law but we say 'in most cases' because there may be exceptional circumstances in which it is not reasonably possible to do so, perhaps, when dealing with firearms or explosives, for reasons of safety, time does not permit any formality prior to making the search. 22 The Act neither provides for nor excludes the requirement at common law that the person when taken, probably against that person's will, to or detained in a hospital be told why that is being done. In Director of Public Prosecutions v Serratore (1995) 38 NSWLR 137 at 142-3 Kirby P, as his Honour then was, said Traditionally, in our law, liberty has been regarded as a most precious civic right. Legislation which has the effect of derogating from the right of an individual to enjoy liberty is conventionally accorded (in the case of ambiguity) a strict construction which favours liberty: Piper v Corrective Services Commission of New South Wales (1986) 6 NSWLR 352 at 358". 23 His Honour referred to Article 9 of the International Covenant on Civil and Political Rights: 9.1 Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law. 24 As Kirby P observed: In the event of uncertainty of the common law or ambiguity of legislation, an Australian court may have regard to the provisions of the international covenant to help resolve the uncertainty or ambiguity" 25 In this case the arrest was one by a member of the police force pursuant to s24(1). Subsection (2) permits a member of the police to apprehend a person in the circumstances described in subs (1) "without the warrant of a justice". I can imagine no reason why the common law would allow a police officer so to apprehend a person without a warrant and without telling that person the reason for that person's apprehension any more than if that person was not mentally disturbed and the member of the police force had reasonable grounds for believing that the person had committed an offence. Why would the police officer be excused from making known the reason for the arrest when the person appears to be mentally disturbed? It seems to me, with due respect, every bit as important that a person who, for example, is to be taken from where they live to a hospital and kept there be told at the earliest possible moment of time why that is being done. As was pointed out in the House of Lords it is at the time of arrest that that person should have the opportunity to explain that there has been a misunderstanding or to call attention to other matters which would show that the facts properly understood would not permit his or her being taken to or detained in a hospital. An obvious example would be mistaken identity. As in the case where a person is arrested without warrant on suspicion of committing a crime, there may be exceptional circumstances where no such statement is required from the person who proposes to take the other to a hospital on the ground that that other person is a mentally ill or mentally disordered person. This is not such a case. 26 Accordingly, in my opinion, the learned trial Judge erred in holding that, from the time Sergeant Wilson issued orders for the respondent to be transported to Moruya Hospital, the respondent's detention was authorised under s24(1) of the Act even though the respondent had not been told where he was being taken when the police vehicle left Fairhaven. 27 The trial Judge had said that the perceived risk that the respondent would take his own life became a significant factor in explaining the decision to transport him to Moruya Hospital for psychiatric assessment. His Honour said: It is difficult in all the circumstances to escape the conclusion that the impression that there was a real and immediate risk of suicide on the plaintiff's part when the decision was made to have him psychiatrically examined was the result of a version of events hastily put together by police at a time when they were searching for a justification for further detaining the plaintiff. This version drew on second hand information in the hands of the police, primarily Constable Wharfe, relating to statements made by the plaintiff on past occasions, reinforced by the discovery of the so-called 'suicide note'. However, flimsy as the grounds upon which the decision was made to have the plaintiff medically examined may have been, the evidence does not go far enough to establish that the collective decision and in particular its endorsement by Sergeant Wilson, the Field Commander, was not made in good faith and was the product of any decision to manufacture a fictitious ground for keeping the plaintiff detained. There was certainly a determination which had gathered momentum as the night progressed to find some means to justify the plaintiff's arrest and detention. This determination had clouded the conduct of all of the police officers involved and resulted in the unlawful arrest and detention of the plaintiff at least for the period he remained in custody in Fairhaven Point Way. To that extent I am in no doubt that the claim for assault, battery and trespass to the person should succeed. 28 However, his Honour rejected the respondent's submission that the requirements of lawful detention under s24 were no different from those which applied to the ordinary powers of arrest or search and detention under s357 and 375E of the Crimes Act 1900. His Honour said: A careful reading of s24 would not support the plaintiff's submission. The very nature of the powers vested in police in the context of the Mental Health Act would suggest that the appropriately inflexible rules ordinarily applicable to powers of arrest and detention where there is no supervening factor of mental disturbance are not necessarily applicable There would appear to be no useful purpose in insisting on the communication of reasons for detention where the detainee is by definition mentally disturbed. At most, any such communication would be best left to the reasonable exercise of discretion at the time the person is apprehended under the Act rather than the absolute rule which applies to other powers of arrest and detention. 29 With due respect a fundamental error in this reasoning is the proposition that the person being detained "is by definition mentally disturbed". Section 24(1) is conditioned upon a member of the police force finding a person in any place "who appears to be mentally disturbed". In the present case the police officers had grounds for believing that it was probable that the respondent would attempt to kill himself. The trial Judge said that there was more than sufficient evidence to suggest that such a prospect was grossly exaggerated but that Sergeant Wilson's decision had to be measured in the context of the prevailing atmosphere. The respondent had shown signs of being out of control. There was evidence, even if second hand and relating to past occasions, of references to suicide by the respondent and his behaviour in the back of the paddy wagon had, on all the evidence, reached fever pitch. "These were sufficient reasons for Sergeant Wilson to conclude that the plaintiff was by that time a danger to himself and others and it was appropriate to take action under the Act." His Honour went further and said: ….there is no reason why the power could not be validly exercised even if it followed an earlier unlawful assumption of power by the police. 30 In my opinion, and with due respect, none of the matters adverted to by the trial Judge persuade me that the law should contemplate enabling a member of the police force who finds a person in any place who appears to be mentally disturbed, even if the other requirements of s24(1) are satisfied, to apprehend that person and take him or her to a hospital without telling the person why that person is being apprehended. It should not pass without notice that having been transported to the hospital according to the form prescribed by the regulation that person may not be seen by a hospital doctor for up to twelve hours after arrival. 31 For the reasons given by Hodgson JA the appellant has not persuaded me that the damages awarded for false imprisonment were excessive. The respondent has persuaded me that the length of unlawful imprisonment exceeded that found by the trial Judge by about two hours. Despite what I regard to be the error of the trial Judge in finding that once a decision was made to detain the respondent under s24 of the Act the imprisonment ceased to be unlawful, there is before us no material upon which it would be appropriate to increase the amount of damages awarded on this account. Nor for the reasons given by Hodgson JA do I think the Court should interfere with the reduction for contributory negligence. On this basis the cross-appeal fails. 32 HODGSON JA: On 6 August 2002, Phegan DCJ gave judgment in favour of the respondent Jonathon Riley against the appellant the State of New South Wales in the sum of $270,307.42, and made orders for the costs of the proceedings generally in favour of the respondent. The appellant appeals to this Court from that decision.

CIRCUMSTANCES 33 The decision was made in proceedings brought by the respondent for damages for assault, battery and false imprisonment, trespass to property and negligence, arising out of conduct of members of the New South Wales Police Service in July and September 1997. There has been no challenge to the basic factual findings of the primary judge, and I will be brief in outlining the circumstances giving rise to the proceedings and the appeal. 34 The respondent was born in 1965. From 1983 he was in a de facto relationship, which came to a tragic end in 1990 when the respondent's de facto partner committed suicide. This had a profound effect on him, and the next four years of his life are largely unaccounted for. He worked in Victoria as a mechanic for the Department of Defence from about 1994, and in about mid-1996 he left Victoria and went to live with his mother at 22 Fairhaven Point Way, Fairhaven, this being a community situated about 5 to 6 kilometres north of Bermagui on the south coast of New South Wales. 35 In July 1996 he obtained a job as a mechanic at the local BP service station. He got to know a customer Ms. Susan Bear, a local school teacher, whose husband had committed suicide less than two years before, and according to the primary judge "their shared personal tragedies brought about a close friendship". 36 The respondent's relationship with his mother was volatile, and both of them had a tendency to drink heavily at times. Their arguments were often overheard by neighbours. A next-door neighbour gave evidence that on occasions she heard the respondent call out "Don't shoot me Mum". Another neighbour Mrs. Crisp remembered hearing sounds like gunshots from the respondent's home before June 1997. 37 On 8 February 1997, Mrs. Bragg reported to police that at about 9.30pm she heard two rifle shots from the house occupied by the respondent and his mother, and heard the respondent come outside to his utility truck shouting abuse and then go inside again. Police attended. One of them telephoned the house from a neighbouring house, and spoke to an unidentified male, and then to the respondent's mother, who came out of the house. Two police officers searched the house, and no other person was located, and no firearms were discovered. The next day, the respondent denied being there at the time; but the primary judge concluded that the respondent was in fact there but had successfully eluded the police. 38 On 11 February 1997, a search warrant was executed at the respondent's home. A quantity of cannabis leaf was found, and also a quantity of ammunition. The respondent was charged with possession of a prohibited drug and with not ensuring the safe-keeping of ammunition. He pleaded guilty to both charges. In evidence, the respondent admitted owning guns but denied that these had ever been brought to New South Wales. The primary judge concluded that he was not telling the truth about this. 39 On 7 June 1997, the respondent found his mother dead in her bathroom. 40 On 8 June 1997, there was a report of shots heard at the respondent's house and police attended; but the persons in the house, including the respondent's father, denied that there had been gunshots there. 41 From about this time, neighbours complained of yelling, screaming and other disturbing conduct by the respondent, including playing loud music for hours at a time. Police were called on a number of occasions. On each occasion the music stopped when they arrived, and no record was made of these attendances. The only police record of any incident involving the respondent between 9 June and 4 July 1997 was on 20 June, when the respondent was breathalysed and charged with PCA. 42 On 30 June 1997, as a result of contact arranged by a police officer, the respondent saw a community mental health nurse at Narooma, who undertook a comprehensive mental health assessment. This recorded the respondent's feelings of unresolved grief and guilt with regard to the suicide of his partner and the death of his mother. 43 On 4 July 1997, at about 9.30pm, Ms. Bear came to the respondent's home following a phone call from the respondent. She noticed recent damage to kitchen cupboards, the result of the respondent having kicked the doors off. The respondent had also kicked in the door of a microwave oven. 44 At about 10.50pm that night, Mrs. Bragg called the police, reporting that she had heard a gunshot from the respondent's house, and saying that this was the third time this had occurred in the last couple of months. Police attended. One policeman spoke to Mrs. Bragg, who he described as "absolutely beside herself, physically shaking, she was in a mess". Police heard two or three noises like gunshots, and heard the respondent screaming obscenities. Further police assistance was called. 45 Sergeant Wilson from Bermagui Police Station arrived at about 11.40pm, and he assumed responsibility for police action from that time. Senior Constables Heinjus and Wallace arrived at about midnight or a little later. 46 Shortly after midnight, Ms. Bear and the respondent left the house through the front door. They argued for about ten minutes before getting into Ms. Bear's car. One police officer gave evidence, apparently accepted by the primary judge, that he heard a male voice, presumably the respondent, yell something to the effect "I'll get the whole fucking pack of them". The car then drove off. Sergeant Wilson instructed Senior Constables Heinjus and Wallace to stop the car. They drove behind the car with lights flashing, and the car stopped. The respondent got out and walked towards the police car. It was about 12.30am. 47 Senior Constables Heinjus and Wallace apprehended the respondent, and his hands were handcuffed behind his back, and they placed him face-down on the bonnet of the police vehicle. The respondent complained at the time that the handcuffs had been applied too tightly and were hurting; and the primary judge accepted that the respondent's wrists were hurting him because the handcuffs had been applied too tightly. Shortly afterwards, a police "paddy wagon" arrived, and the respondent was put inside. The respondent was very angry, he kicked against the door, and he threw himself from side to side inside the truck, with such force as to cause the truck to rock. 48 No firearm was found on the respondent or in Ms. Bear's car. Sergeant Wilson requested another Senior Constable to go into the house to make sure there was no person inside who was either injured or armed, and he did so. No person or firearm was then located. The result of this search was advised to Bega Police Station at about 1.20am. 49 At about the same time, having been given information concerning alleged suicide threats previously made by the respondent, Sergeant Wilson agreed to a suggestion that the respondent be taken to Moruya Hospital for psychiatric assessment, and gave an instruction to that effect. The paddy wagon containing the respondent set off at about 1.30am. It contained only the driver and the respondent. The distance to Moruya was about 65 kilometres, and the route involved some sharp curves and steep grades. 50 At about the time of the instruction to take the respondent to Moruya, Sergeant Wilson gave instructions for the house to be searched for firearms. Sergeant Wilson and two other policeman made a thorough search, lasting about one hour. No firearm was found, but an empty shotgun case and .22 ammunition was found. The primary judge was unable to resolve the question whether the sounds heard previously in the night were in fact gunshots or, as the respondent claimed, merely bungers which had been detonated. 51 The paddy wagon with the respondent in it arrived at Moruya Hospital at about 2.30am. The respondent was interviewed by Dr. Margaret Beazley, who scheduled the respondent under the Mental Health Act 1990 as mentally disordered. Thereafter, the respondent was transported by police vehicle to Batemans Bay Police Station, and by ambulance from Batemans Bay to Kenmore Hospital at Goulburn. 52 The respondent was discharged from Kenmore on 7 July 1997, and was taken into Goulburn and left there at 3pm, to hitchhike back to Bermagui. 53 The respondent's wrists were injured from the overly-tight application of the handcuffs, although no fracture was detected at the time. On 29 July 1999, an x-ray showed a fracture through the waist of the scaphoid bones of the right wrist, with moderate sclerosis of the fracture margins indicating that it was of some age. 54 On 9 September 1997, police attended the respondent's home following complaint by Mrs. Bragg. The respondent was arrested on a charge of resisting arrest. 55 On 29 January 1998, the respondent was involved in a motor vehicle accident in which he sustained serious injuries, not including any injury to either of his wrists. 56 These proceedings were commenced on 3 March 1999. There were four main claims: first, assault (assault, battery and false imprisonment) on 4 and 5 July 1997; second, negligence causing injury, particularly injury to the wrists and psychological injury; third, trespass to property constituted by the search on 5 July 1997; and fourth, trespass to the person and property occurring on 9 September 1997. A claim was made for aggravated and exemplary damages.

FINDINGS OF PRIMARY JUDGE 57 I will deal first with the findings on liability. 58 In relation to assault on 4 and 5 July 1997, the primary judge found that the power of arrest conferred by s.352 of the Crimes Act 1900 was subject to the requirements of the common law, including the requirement that the arresting officer inform the person arrested of the true ground on which he or she was being arrested: Adams v. Kennedy (2000) 49 NSWLR 78 at 85. The primary judge held that this was not a case where the requirement did not arise for the reason that the respondent must have known what he was being arrested for. He held that the same requirement applied to rights of arrest and/or detention given by ss.357(2) and 357E of the Crimes Act: see Pedro v. Diss (1980) 72 CrimAppR 193. However, the primary judge concluded that there were sufficient reasons for Sergeant Wilson to conclude that the respondent was a danger to himself and/or others, and that it was appropriate to take action under the Mental Health Act; and that s.24 of that Act was not subject to the common law requirements as to arrest. Accordingly, he held that from the time Sergeant Wilson issued the instructions for the respondent to be taken to Moruya Hospital, the respondent's detention was authorised by that section. He held further that, if he was wrong on this, any continuing unlawful imprisonment ended with the scheduling of the respondent by Dr. Beazley. 59 As regards the claim of trespass to property, the primary judge held that the second search of the respondent's premises was a trespass, in that there was no pressing urgency to search without recourse to proper procedures, and the defence of necessity was not made out. 60 In relation to negligence, the primary judge held that the decision to transport the respondent in such an agitated state and handcuffed behind his back along a road with steep grades and sharp bends failed to take adequate account of the risk of injury; and this was further evidenced by the absence of a police officer travelling as an observer. The primary judge found that the police were careless of the respondent's well-being from the time of arrest, and in particular during the transportation to Moruya; and that as a result, the respondent's right wrist was fractured. 61 However, the primary judge found the respondent guilty of contributory negligence, leading to a 40% reduction in the award for negligence. 62 As regards the events of 9 September, the primary judge found that assault, battery, trespass to land and false imprisonment had been made out; and no appeal is brought relating to that finding. 63 Turning to damages, the primary judge found that the compensable psychological consequences of the conduct of the police on 4 and 5 July 1997 did not go beyond a short-term impact of a kind which any person might be expected to experience as a result of such an ordeal, and could be accounted for by way of compensatory and/or aggravated damages for assault, battery and false imprisonment. 64 Dealing with compensatory damages for the assaults on 4 and 5 July 1997, the primary judge found that the respondent suffered physical injury from the overly-tight handcuffs, including extensive bruising and pain of the writs, and also tenosynovitis. That plus psychological consequences justified a finding of general damages of $40,000.00 to which was added interest of $3,600.00, and also past economic loss including interest amounting to $1,200.00. 65 On the question of aggravated damages in respect of these assaults, the primary judge found that the unjustified actions of the police set in train a sequence of events which continued until the respondent's release from Kenmore, when the respondent had to hitchhike home and suffered feelings of having been stigmatised. The primary judge held that this resulted in a significant increase in adverse psychological consequences justifying an award for aggravated damages of $40,000.00. 66 In relation to exemplary damages for these assaults, the primary judge held that the arrest was in breach of procedures aimed at preventing arbitrary arrest, and was in excess of orders given by Sergeant Wilson; and also that the respondent was subjected to the application of physical force out of proportion to any threat, with his forceful detention being persisted in despite the falling away of any possible grounds to justify it. The primary judge held that the police conduct was high-handed and displayed contumelious disregard of the respondent's rights, justifying a substantial award of exemplary damages. The primary judge assessed these damages at $40,000.00. 67 In relation to the trespass to property on 5 July 1997, the primary judge was not satisfied that the respondent had established actual damage to any items of property, but considered that the search amounted to a gross invasion of privacy and was highly disturbing to the respondent. The primary judge awarded compensatory damages of $8,000.00, no aggravated damages, and exemplary damages of $5,000.00. 68 On the claim in negligence, the primary judge found on the balance of probabilities that the police negligence caused the fracture to the respondent's right wrist, and on that basis assessed damages of $200,655.70, which he reduced by reason of contributory negligence to $120,393.42. 69 Finally, in relation to the events of 9 September 1997, the primary judge assessed damages at $10,000.00; and there is no challenge to this figure. 70 After the principal judgment had been handed down on 5 July 2002, the appellant made submissions based on the Motor Accidents Act 1988. Initially, it was submitted that this Act governed the assessment of damages for negligence; but subsequently it was submitted that the respondent could not succeed on the negligence claim, because the injury for which damages were assessed in relation to the negligence claim was within the definition of injury contained in s.3 of the Act, and the mandatory procedural requirements of the Act had not been followed. On this matter, the primary judge held that, in order for the appellant to rely on this submission, it needed to amend its defence, and the primary judge refused leave to amend the defence. On that basis, the appellant's submission failed.

GROUNDS OF APPEAL 71 The appellant relied on grounds 1-5 and 7-11 in its Notice of Appeal. Ground 6 relating to certain credit findings was not pressed. The grounds relied on are as follows: (1) The trial judge was in error in awarding aggravated damages to the respondent in the assault, battery and false imprisonment actions in that: (i) The objective facts did not warrant an award of aggravated damages in the circumstances, or in the alternative whether a reduction in the quantum of same was warranted in the circumstances. PARTICULARS (a) From early June up to July 4 there was a dramatic rise in the respondent's anti-social behaviour, including his causing the sounds of gunshots and other loud noise coming from the respondent's premises, running up and down his street at night whilst drunk, screaming and challenging the neighbours to come out and to call the police. (b) There was a history of police intervention prior to 4 July 1997 as a result of neighbours reports of gunshot sounds and loud music coming from the respondent's premises. (c) The respondent's actions in disturbing his neighbours and causing the police to be called to his premises were premeditated. His actions were calculated to cause alarm amongst his neighbours which invited police intervention, both before and after 4 July 1997. (d) [T]he night of 4 July 1997, the respondent was heavily intoxicated and had been threatening to kill himself before the arrival of the police. The respondent caused a number of "gunshot sounds" to be made causing the neighbours to call for urgent police assistance. When the first police officers arrived, they also heard what they thought to be gunshot sounds. The police held a genuine belief that the respondent was both dangerous and suicidal. (e) The interception of the respondent by police after he left the house was necessary in light of the fear that the respondent was armed. (f) After the respondent's apprehension by police he engaged in violent and irrational behaviour whilst in the police vehicle. He was extremely hostile and erratic in behaviour and was attempting to kick the door of the wagon, throwing himself from side to side and continually yelling. (g) The respondent's detention, whilst held by the trial judge to be not initially authorised, was held to have become authorised within a short space of time when the decision was made by the police to take the respondent to a hospital under the provisions of the Mental Health Act 1990. (h) The police attempted to assist the respondent in overcoming his grief, including attempting to arrange counselling at the Narooma Community Health Centre. (i) The Police exercised considerable patience with the respondent in the face of extreme anti-social behaviour and numerous complaints by neighbours as to his anti-social behaviour. (j) The police in attendance at the scene were concerned about there being a hostage and/or firearm in the respondent's car when he left the premises, and the possibility that there was an injured person and/or firearm in the respondent's house at the time of the stopping of the respondent's vehicle. (ii) The trial judge took into account irrelevant matters in determining that an award of aggravated damages was justified. (iii) The trial judge took into account matters in justifying the awarding such damages which he was not entitled to take into account as a matter of law. (iv) The trial judge failed to have regard to the respondent's conduct up to and including the time of his arrest when assessing whether or not aggravated damages should be awarded in favour of the respondent at all, and if so, whether the quantum of same should be reduced. (v) The trial judge failed to have regard to the respondent's conduct at the point of time at, and after the respondent's arrest when assessing whether or not aggravated damages should be awarded in favour of the respondent at all and if so, whether the quantum of same should be reduced. (2) The trial judge was in error in awarding exemplary damages to the respondent in the assault, battery and false imprisonment actions in that:- (i) The objective facts did not warrant an award of exemplary damages in the circumstances, or in the alternative a reduction in the quantum of same was warranted in the circumstances. PARTICULARS (a) The appellant repeats the Particulars set out in Ground 1(i) (a) to (j) above. (ii) The trial judge took into account irrelevant matters in determining that an award of exemplary damages was justified and in determining the quantum of same. (iii) The trial judge failed to have regard to the respondent's conduct up to the time of his arrest when assessing whether or not exemplary damages should be awarded in favour of the respondent at all, and if so, whether the quantum of same should be reduced. (iv) The trial judge failed to have regard to the respondent's conduct at the point of time at, and after the respondent's arrest when assessing whether or not exemplary damages should be awarded in favour of the respondent at all and if so, whether the quantum of same should be reduced. (3) The trial judge was in error in rejecting the defence of necessity to the respondent's action for trespass with respect to the events relating to the 4th and 5th July. (4) Further and in the alternative to Ground (3) above, the trial judge was in error in awarding exemplary damages to the respondent with respect to such search of the Plaintiff's premises which was carried out on the night of the 4th and 5th July. (5) The trial judge was in error in awarding damages to the respondent with respect to the injury to the right wrist in that:- (i) there was insufficient evidence available to support a finding that the right wrist injury was caused by any action or inaction on the part of the police officers involved in the arrest, detention or transportation of the respondent. (ii) the medical evidence put forward did not support such a finding being made. (6) … (7) In coming to a finding of negligence as against the appellant the trial judge took into account a particular of negligence which the respondent was disallowed from relying upon when the application for amendment was made. (8) The trial judge was in error in rejecting the defence of necessity in relation to the respondent's initial and continued apprehension at the time of, and after the respondent was first taken into custody. (9) The damages awarded by the trial judge to the respondent on the false imprisonment count were excessive, particularly having regard to the finding made that whilst the initial apprehension may have been unauthorised such detention became authorised once the decision was made to have the respondent dealt with pursuant to the provisions of the Mental Health Act 1990. (10) The trial judge was in error in refusing leave to the appellant to file a Second Further Amended Notice of Grounds of Defence seeking to raise the provisions of the Motor Accidents Act 1988 as a defence to the respondent's claim for negligence. (11) The trial judge was in error in entering judgment against the appellant with respect to the negligence claim relating to the right wrist injury suffered by the respondent in circumstances where the claim was governed by the provisions of the Motor Accidents Act 1988. 72 There was a cross-appeal with three grounds. Grounds 1 and 2, concerning contributory negligence, were not pressed. Ground 3, which was pressed, was as follows: (3) His Honour erred in not finding that the unlawful detention of the plaintiff continued until his assessment by Dr. Beasley (sic) at Moruya Hospital (Red Book 196M) and in particular by:- (a) finding that the detention became lawful after Sgt. Wilson issued instructions to take the plaintiff to Moruya Hospital pursuant to section 24 of the Mental Health Act (Red Book 196M); and/or (b) by holding up the requirements of lawful detention under section 24 of the Mental Health Act did not carry with it the same or similar requirements to a lawful detention under section 357 or 357B of the Crimes Act and/or at common law (Red Book 195H). 73 The respondent also relied on a Notice of Contention, containing the following ground: That if the Court finds that his Honour was in error when he took into account matters which were said to be relevant to the award of exemplary and/or aggravated damages on the claims made for wrongful arrest, false imprisonment and assault, namely the circumstances which applied to the respondent from the time of his being scheduled pursuant to the Mental Health Act by Dr Beasley at the Moruya Hospital then it is submitted that the awards for aggravated and/or exemplary damages were still within the proper range of such damages in the circumstances of his arrest and his being so scheduled by Dr Beasley. 74 I will deal in turn with the following issues arising from these various grounds: (1) Necessity as a possible defence to assault and/or trespass to land. (2) Whether s.24 of the Mental Health Act is subject to common law requirements as to arrest. (3) Whether the finding of negligence was vitiated by reliance on a disallowed particular, and whether there was error in finding causation of the wrist fracture. (4) Whether there was error in the holding that the Motor Accidents Act did not apply. (5) Alleged excessiveness of compensatory damages for the assaults on 4 and 5 July 1997. (6) The question of aggravated damages for those assaults. (7) The question of exemplary damages for those assaults and for the trespass to land on 5 July 1997.

NECESSITY (GROUNDS 3 AND 8) 75 In order to consider whether necessity could be a defence in this case to the claims for assault and trespass, it is necessary to have regard to common law principles and also to the provisions of the Crimes Act 1900 (NSW) concerning arrest and detention. The most relevant sections of this Act are ss.352, 357(2) and 357E, which are as follows: 352(1) Any constable or other person may without warrant apprehend, (a) any person in the act of committing, or immediately after having committed, an offence punishable, whether by indictment, or on summary conviction, under any Act, (b) any person who has committed a serious indictable offence for which the person has not been tried, and take the person, and any property found upon the person, before an authorised Justice to be dealt with according to law. (2) Any constable may without warrant apprehend, (a) any person whom the constable, with reasonable cause, suspects of having committed any such offence, (b) any person lying, or loitering, in any highway, yard, or other place during the night, whom the constable, with reasonable cause, suspects of being about to commit any serious indictable offence, and take the person, and any property found upon the person, before an authorised Justice to be dealt with according to law. (3) Any constable may, although the warrant is not at the time in his or her possession, apprehend any person for whose apprehension for a minor indictable offence a warrant has been issued, and take the person, and any property found upon the person, before an authorised Justice to be dealt with according to law. (4) Any constable may, although the warrant is not at the time in his or her possession, apprehend any person for whose apprehension on any ground (other than a charge of an indictable offence) a warrant has been lawfully issued, provided the issue of such warrant has been certified by telegraph by the Commissioner of Police or by the Justice who has signed such warrant. (5) In this section: "authorised Justice" means: (a) a Magistrate, or (b) a Justice employed in the Department of Courts Administration. "telegraph" includes telephone, radio, telex, facsimile transmission, computer used to relay information and any other communication device.

357(1) … (2) If a member of the police force suspects, on reasonable grounds, that a dangerous article is being or has been used in the commission of an offence to which this section applies and that it is in the possession of any person in a public place or is in any vehicle, vessel, aircraft, package or receptacle which is in a public place and is in the possession or under the control of any person, the member may, without warrant: (a) detain and search the person and any such vehicle, vessel, aircraft, package or receptacle, and (b) seize and detain any dangerous article found as a result of the search.

357E A member of the police force may stop, search and detain: (a) any person whom he or she reasonably suspects of having or conveying any thing stolen or otherwise unlawfully obtained or any thing used or intended to be used in the commission of an indictable offence, or (b) any vehicle in which he or she reasonably suspects there is any thing stolen or otherwise unlawfully obtained or any thing used or intended to be used in the commission of an indictable offence. 76 The common law rule is that it is a condition of lawful arrest that, with some exceptions, a person arrested is entitled to be told why he or she is being arrested: Christie v. Leachinsky [1947] AC 573. In that case, Viscount Simon stated the following five propositions: If a policeman arrests without warrant upon reasonable suspicion of felony, or of other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words a citizen is entitled to know on what charge or on suspicion of what crime he is seized. (2.) If the citizen is not so informed but is nevertheless seized, the policeman, apart from certain exceptions, is liable for false imprisonment. (3.) The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained. (4.) The requirement that he should be so informed does not mean that technical or precise language need be used. The matter is a matter of substance, and turns on the elementary proposition that in this country a person is, prima facie, entitled to his freedom and is only required to submit to restraints on his freedom if he knows in substance the reason why it is claimed that this restraint should be imposed. (5.) The person arrested cannot complain that he has supplied with the above information as and when he should be if he himself produces the situation which makes it practically impossible to inform him, e.g., by immediate counter-attack or by running away. 77 He continued: There may well be other exceptions to the general rule in addition to those I have indicated, and the above propositions are not intended to constitute a formal or complete code, but to indicate the general principles of our law on a very important matter. 78 Lord Simonds at 591 said this: Putting these things first, I would say that it is the right of every citizen to be free from arrest unless there is in some other citizen, whether a constable or not, the right to arrest him. And I would say next that it is the corollary of the right of every citizen to be thus free from arrest that he should be entitled to resist arrest unless that arrest is lawful. How can these rights be reconciled with the proposition that he may be arrested without knowing why he is arrested? 79 He set out some exceptions at 593, as follows: Again, I think it is clear that there is no need for the constable to explain the reason of arrest, if the arrested man is caught red-handed and the crime is patent to high Heaven. Nor, obviously, is explanation a necessary prelude to arrest where it is important to secure a possibly violent criminal. Nor again, can it be wrongful to arrest and detain a man upon a charge, of which he is reasonably suspected, with a view to further investigation of a second charge upon which information is incomplete. 80 These passages were relied on by the New South Wales Court of Appeal in Adams v. Kennedy (2000) 49 NSWLR 78, and the Court of Appeal also noted that the Court's attention was not drawn to any statutory alteration of these principles. In my opinion, it is clear that the sections I have quoted are not such as to displace such well-established principles of common law. Furthermore, the United Kingdom case of Pedro v. Diss (1980) 72 CrimAppR 193 held that the common law principles did apply to detention under a statutory provision similar to s.352 as they did to arrest at common law. 81 Mr. Maconachie QC for the appellant submitted that the test of necessity was whether the act in question was reasonably necessary to prevent harm to a third party or to the claimant or the defendant: cf. Dehn v. Attorney-General [1988] 2 NZLR 564 at 580. This had to be considered against the background of disturbed behaviour by the respondent, reports of gunshots on previous occasions and on this night, the sound of apparent gunshots heard by the police, and evidence of threats and the suggestion of suicide. The primary judge held that the interception and handcuffing of the respondent and placing of him in a police wagon might be regarded as an act of necessity in the light of reasonable fear that the respondent was armed and dangerous; and Mr. Maconachie submitted that the primary judge's analysis to the effect that this justification ended at that point was artificial. Mr. Maconachie submitted that it was reasonable for the police then to assess the situation; and that in fact this was what occurred, with the result being that a decision was made to take the respondent to hospital. Mr. Maconachie submitted that it was reasonable to keep the respondent in the wagon in the meantime, because his violent and erratic behaviour indicated that he could be a danger to himself and others if released. 82 Similarly, Mr. Maconachie submitted, the search of the premises was reasonably necessary to prevent harm, by ensuring that the respondent did not have access to a weapon if he was not detained at the hospital. 83 In my opinion, this argument should not succeed. Necessity can be justification for arrest without informing the person arrested of the reason. Lord Simonds stated that such an explanation was not a necessary prelude to arrest when it was important to secure a possibly violent criminal. But by clear implication, once the possibly violent criminal had been secured, explanation was required if detention was then to continue, at least unless the reason for arrest was obvious as in the case of a person caught red-handed. 84 In this case, at least once the possibility of violence, and in particular the use of a weapon, had been averted, the police could not continue to detain the respondent unless a proper arrest was made or a decision taken under the Mental Health Act. I accept that it was reasonable that the police have some time to determine what to do; but in this case there was a delay in the order of at least forty or fifty minutes, and in my opinion, in the circumstances of this case, a delay of that extent could not be justified as part of reasonably necessary steps to prevent harm. Furthermore, necessity could not possibly justify the over-tight application of handcuffs found by the primary judge. 85 In my opinion also, necessity could not justify the second search of the premises. The first quick search for another, possibly injured, person in the house was justified by necessity. But the second search, about an hour later, did not have that justification. Prima facie at least, there was time and opportunity to get a warrant; and if the appellant wished to make out some reason why it was reasonable not to do so, then there was an onus on the appellant to make out this reason and this onus was not discharged. 86 Accordingly, these grounds fail.

MENTAL HEALTH ACT (CROSS-APPEAL) 87 In order to assess whether the common law requirements, mentioned above, apply to action taken under the Mental Health Act, it is necessary to have regard to the whole of Division 1 of Pt.2 of the Mental Health Act 1990 (NSW), in particular ss.20-22, 24, 27, and 29-30, and to the definition of "authorised hospital", "hospital", and "medical superintendent" in Schedule 1 of the Act. These provisions are as follows: 20. A person must not be admitted to, or detained in or continue to be detained in, a hospital under this Part unless the medical superintendent is of the opinion that no other care of a less restrictive kind is appropriate and reasonably available to the person.

21(1) A person may be taken to and detained in a hospital (other than an authorised hospital) on the certificate of a medical practitioner or an accredited person: (a) who has personally examined or personally observed the person immediately before or shortly before completing the certificate, and (b) who is of the opinion that the person is a mentally ill person or a mentally disordered person, and (c) who is satisfied that no other appropriate means for dealing with the person are reasonably available, and that involuntary admission and detention are necessary, and (d) who is not a near relative of the person. (2) The certificate is to be in the form set out in Part 1 of Schedule 2. (3) A medical practitioner or an accredited person who gives any such certificate and who has (directly or indirectly) a pecuniary interest in any authorised hospital, or has a near relative, partner or assistant who has such an interest, must, on giving the certificate, disclose that fact and give particulars of the interest in the certificate. (4) A person may not be admitted to or detained in a hospital on a certificate: (a) certifying that the person is a mentally ill person---unless the person is so admitted within 5 days after the day on which the certificate is given, or (b) certifying that the person is a mentally disordered person---unless the person is so admitted within 1 day after the day on which the certificate is given.

22.(1) A medical practitioner or an accredited person who gives a certificate under section 21 and who is of the opinion: (a) that the condition of the person in respect of whom the certificate is given is such that the assistance of a member of the Police Force is required to take the person to hospital, and (b) that no other means of taking the person to a hospital (other than an authorised hospital) are reasonably available, may endorse the certificate in the form set out in Part 2 of Schedule 2. (2) A member of the Police Force to whose notice any such endorsement is brought must, as soon as practicable: (a) apprehend and take or assist in taking the person in respect of whom the certificate is given to a hospital (other than an authorised hospital), or (b) cause or make arrangements for some other member of the Police Force to apprehend or take or assist in taking the person to a hospital (other than an authorised hospital). (3) A member of the Police Force may enter premises, if need be by force, for the purpose of apprehending any such person, and may apprehend any such person, without the warrant of a justice.

24(1) If a member of the Police Force finds a person in any place who appears to be mentally disturbed and the member of the Police Force has reasonable grounds for believing: (a) that the person is committing or has recently committed an offence and that it would be beneficial to the welfare of the person that the person be dealt with in accordance with this Act rather than otherwise in accordance with law, or (b) that the person has recently attempted to kill himself or herself or that it is probable that the person will attempt to kill himself or herself or attempt to cause serious bodily harm to himself or herself, the member of the Police Force may apprehend the person and take the person to a hospital (other than an authorised hospital). (2) A member of the Police Force may apprehend any such person without the warrant of a justice.

27(1) If the appropriate person is satisfied, by evidence on oath: (a) that a person may be a mentally ill person or a mentally disordered person, and (b) that, because of physical inaccessibility, the person could not, but for the making of an order under this section, be personally examined or personally observed, the appropriate person may, by order, authorise a medical practitioner or an accredited person and any other person (including a member of the Police Force) who may be required to assist the medical practitioner or accredited person to visit and to personally examine or personally observe the person. (2) A person so authorised may enter premises, if need be by force, in order to enable the examination or observation to be carried out. (3) A person who is examined or observed in accordance with this section may be detained in accordance with section 21. (4) A medical practitioner or an accredited person authorised under this section is required to notify in writing the appropriate person who made the order of any action taken under the order as soon as practicable after the action is taken. (5) In this section, "appropriate person" includes a Magistrate and a person who is employed in the Attorney General's Department and who is a person or a member of a class or description of persons prescribed for the purposes of this section.

29(1) A person taken to and detained in a hospital under this Division must be examined, as soon as practicable (but not more than 12 hours) after the person's arrival at the hospital, by the medical superintendent. (2) A person must not be detained (except as provided by section 37 or 37A) after the examination unless the medical superintendent certifies that, in the opinion of the medical superintendent, the person is a mentally ill person or a mentally disordered person. (3) A medical practitioner on whose certificate or request a person has been admitted to a hospital must not examine the person for the purposes of this section.

30(1) The medical superintendent must, as soon as practicable after a person is taken to a hospital under this Division, give to the person an oral explanation and a written statement (in the form prescribed by the regulations) of the person's legal rights and other entitlements under this Act. (2) The medical superintendent must, as soon as practicable after it is decided to do all such things as may be necessary to cause a person who is an informal patient to be detained in a hospital under this Division, give to the person an oral explanation and a written statement (in the form prescribed by the regulations) of the person's legal rights and other entitlements under this Act. (3) If the medical superintendent is of the opinion that a person is not capable of understanding the explanation or statement when it is first given, another explanation or statement must be given to the person not later than 24 hours before an inquiry is held before a Magistrate in respect of the person. (4) The medical superintendent must, if the person is unable to communicate adequately in English but is able to communicate adequately in another language, arrange for an oral explanation under this section to be given in that other language.

"authorised hospital" means premises in respect of which a licence has been granted to any person under Division 2 of Part 1 of Chapter 8.

"hospital" means: (a) any premises the subject of an order in force under section 208 by which the premises are declared to be a hospital, or (b) an authorised hospital.

"medical superintendent", in relation to: (a) a hospital, other than an authorised hospital, means the medical practitioner appointed, under section 209, as medical superintendent of the hospital, and (b) an authorised hospital, means the medical practitioner appointed, under section 220, as medical superintendent of the authorised hospital, and, in Chapter 4, sections 142 and 143 and Division 2 of Part 1 of Chapter 7, includes a reference to a medical officer, nominated by the medical superintendent, attached to the hospital or authorised hospital, as the case may be. 88 Mr. Toner SC for the respondent submitted that s.24 was not expressed in terms to displace the very important common law principles concerning arrest, and did not do so. 89 Mr. Maconachie submitted that the power given by s.24 was different from an ordinary power of arrest, in that it was likely to be required when the person was not in a condition where the provision of an explanation would be readily understood or in the person's best interests. The provisions of Division 1 of Pt.2 of the Act amounted to a code, and included in s.30 a detailed provision as to how a person detained under those sections was to be informed. This was explicable by the consideration that it was in the person's best interests that a trained person perform the delicate task of informing the person why he or she has been deprived of liberty and what his or her rights are. 90 I find this a difficult question. In my opinion, the mere fact that a person dealt with under s.24 is likely to be mentally disturbed is insufficient in itself to displace the common law rule. Even at common law, there are exceptions and, in my opinion, if the circumstances were such as to indicate that communication of an explanation would be pointless, the common law principle would not require a pointless exercise. But there are considerations supporting the view of the primary judge. Section 24 appears in a series of sections enabling persons other than police officers to take and detain persons in certain circumstances; and they explicitly provide in s.30 for an explanation to be given by the relevant medical superintendent. There are some grounds for considering this series of sections as a code, and s.30 could be taken as an indication of the view of the legislature that it is desirable that the mandatory explanation be given by a medical expert, rather than a police officer or other person acting on a certificate under s.2. Furthermore, the nature of what is done may vary widely, from persuasion through minimal physical guidance to outright application of force; and there may be circumstances in which an inexpert explanation of what is happening could inflame a delicate situation. 91 On the other hand, as in the case of an ordinary arrest, a person deprived of liberty under the Mental Health Act is entitled to resist arrest and detention if this is not justified, providing a powerful reason why the person should be given information as to why the arrest and detention was taking place. For the person to oppose a police officer acting under s.24 would amount to resisting an officer in the execution of his duty, and thus be an offence under s.58 of the Crimes Act. Furthermore, the right to be informed of the reason for deprivation of liberty is an important common law right, one that would not be displaced without a clear indication of legislative intention. 92 For these reasons, and the reasons given by Sheller JA, my opinion is that the Mental Health Act did not displace the common law right to be informed of the reason for deprivation of liberty. In that respect, the primary judge was in error. This means that the false imprisonment of the respondent continued until he was scheduled by Dr. Beazley at Moruya Hospital. I will consider the consequences of this when I deal with negligence (Grounds 5 and 7).

NEGLIGENCE (GROUNDS 5 AND 7) 93 Two challenges are made by the appellant to the finding of liability for negligence in respect of the respondent's broken wrist. 94 First, the primary judge stated that the lack of concern for the respondent's safety was "further evidenced by the apparent absence of a police officer travelling with [the driver] as an observer". The difficulty with this statement is that, during the trial, the respondent had applied to add further particulars of negligence; and the primary judge had refused leave to the respondent to rely on a particular expressed as "failing to provide an escort to the driver of the vehicle in which the plaintiff was conveyed so as to ensure or reasonably ensure the safety of the plaintiff in the circumstances". In my opinion, this means that it would be a denial of natural justice if the primary judge's decision was to any material extent based on the absence of an escort. 95 However, before referring to the lack of an observer, the primary judge had said this: For reasons already canvassed earlier in the judgment, the decision to transport the plaintiff in such a agitated state and handcuffed behind his back along a road known to have both steep grades and very sharp bends, failed to take adequate account of the risks of injury to the plaintiff on route to Moruya Hospital. 96 It is true that, in the earlier discussion, the primary judge had referred to evidence that it was normal practice for there to be an observer as well as a driver in such a vehicle, and had stated that it was important to have an observer; and also had referred to evidence suggesting there was no observer on this occasion. However, in my opinion the passage quoted strongly suggests that the primary judge found negligence on the basis of reasons that did not include the lack of an escort or observer, and treated the lack of an escort merely as further support for this finding arrived at otherwise. So in my opinion, the finding of negligence is not vitiated by this matter. 97 The second challenge is to the primary judge's finding that the fracture to the respondent's wrist was caused by negligence of the police. It was submitted that it was not enough to find, on the balance of probabilities, that the fracture occurred between the time of arrest and the time of arrival at Moruya Hospital, when there was no finding as to how it happened. It was submitted that the medical evidence suggested that the cause of the fracture was a severe flexion of the wrist, usually caused by a fall on an outstretched hand; and that this would not be caused merely by over-tight application of handcuffs. The respondent gave no evidence of any incident of such a nature as could have caused the fracture. X-rays taken at Bega in August 1997 showed no bony or joint abnormality; and the fracture was not discovered until an x-ray in July 1999. Furthermore, the respondent's evidence was that he wished to return to work immediately after the incident, but was forced by his employer to take two weeks off against his wishes. It was submitted that there was overwhelming evidence that when he did return to work, he worked normally. 98 In my opinion, it would be sufficient for a finding of liability in negligence for the fracture that it be found, on the balance of probabilities, that the fracture occurred between arrest and arrival at Moruya, and was caused by negligence of the police, even if the precise mechanism of how it occurred was not identified. Although for other purposes the treatment of the respondent between arrest and Sergeant Wilson's decision has been treated as trespass to the person, in my opinion that treatment also amounted to a breach of a duty of care. The primary judge found it "most likely" that the fracture was caused in transit, but did not exclude the possibility that it happened between arrest and Sergeant Wilson's decision; and in my opinion, he plainly treated either possibility as sufficient to ground liability. 99 On that basis, in my opinion the primary judge's finding was open on the evidence. Although there was no evidence of any specific incident likely to have caused the fracture, there was evidence of over-tight handcuffs being applied when the respondent was on the ground, of the respondent being pushed over the bonnet of a car, of the respondent being placed in the paddy wagon and then throwing himself around in it (the primary judge found this was a case where the duty of care extended to reasonable care to prevent the respondent harming himself), and of the respondent being in the rear of the paddy wagon, unrestrained and with his hands handcuffed behind his back, when the vehicle was driven on a road with steep grades and sharp curves. The evidence was that there was no other incident likely to have caused the fracture, and there was evidence of problems with the right wrist and hand from the time of the incident. The fracture was such as could have gone undetected by x-ray, and when it was detected it showed signs that it was not recent. 100 Although no specific incident likely to have caused the fracture was identified, it was not necessary to do so: cf. my article "The Scales of Justice: Probability and Proof in Legal Fact-finding" (1995) 69 ALJ 731 at 748-50. The fracture could for example have occurred by the respondent throwing himself against the side of the paddy wagon or falling on his back with the handcuffs on, or at the time of the initial arrest and application of handcuffs. In my opinion, it was open to the primary judge to find that the fracture more probably than not occurred during the period between arrest and arrival at Moruya, and as a result of negligence; and this is what the primary judge did find. 101 Accordingly, these grounds of appeal fail. 102 The conclusions I have reached as to the effect of the Mental Health Act become possibly relevant at this point. My conclusion that false imprisonment continued until the respondent was scheduled at Moruya Hospital does not, in my opinion, justify a conclusion that the respondent suffered any additional injury or damage as a result of the appellant's tortious conduct; but it could possibly have consequences in relation to contributory negligence. Given that the respondent's wrist fracture was caused between arrest and arrival at Moruya, the conclusion that false imprisonment continued throughout this period raises the question whether the wrist fracture was caused by an intentional tort, rather than merely by negligence. In my opinion, the intentional wrongdoing was imprisonment (in the absence of explanation), not the absence of explanation itself; and the wrist fracture would not have occurred but for the imprisonment. And just as the wrist fracture was a foreseeable consequence of negligence, it was also in my opinion a foreseeable consequence of imprisonment and/or the manner of imprisonment (including the manner of driving). 103 Because judgment in this case was given after the commencement of the amendment of the Law Reform (Miscellaneous Provisions) Act 1965 by Act III of 2000, cl.3 of Schedule 1 to that Act means that the amendments made by that Act apply in this case. Accordingly, apportionment on this basis of contributory negligence is available only if a defence of contributory negligence is available at common law to the appellant's liability in tort: ss.8 and 9 of the 1965 Act, as amended by the 2000 Act. 104 It seems clear that such a defence is not available at common law to a claim for damages for an intentionally inflicted injury: Quinn v. Leathem [1901] AC 495 at 537, Fontin v. Katapodis (1962) 108 CLR 177, Horkin v. North Melbourne Football Club Social Club [1983] 1 VR 153. The contrary view expressed in Lane v. Holloway [1968] 1 QB 397, Hoebergen v. Koppens [1974] 2 NZLR 597 and Barley v. Paroz, Queensland Supreme Court, 4/4/79 is I believe incorrect. 105 However, the wrist fracture was not inflicted intentionally, and was not proved to be other than an indirect consequence of the false imprisonment. This gives rise to two questions: (1) as an indirect consequence of the imprisonment, could it in any event be compensated in an action for trespass to the person; and (2) if it could be compensated in such an action, would a defence of contributory negligence lie because the injury was not intended? 106 It seems clear that contributory negligence is available as a defence to an action for unintentional trespass: see Venning v. Chin (1974) 10 SASR 299. And at 317 in that case, Bray CJ said: It is clear that contributory negligence could never be a defence to an intentional tort, or perhaps it would be preferable to say to the intentional consequences of a tort.

Bray CJ then referred to Glanville Williams Joint Torts and Contributory Negligence (1951) at 197-199. And in Fleming on Torts (9th Ed), the following appears at 316: Even at common law contributory negligence was not a defence to all torts. Thus it did not apply to intended injury as distinct from unintended consequences of wilful wrongdoing. 107 Returning to my two questions, I am inclined to the view that, once some direct interference is established so that an action for trespass does lie, even indirect consequences of that interference can be compensated in the action for trespass (although such action would not lie at all if there was no direct interference but only indirect consequences). However, where there are indirect and unintended consequences of the trespass, I think the better view is that the defence of contributory negligence is available in respect of those unintended consequences. This view has some support from the decision of the Court of Appeals of New York in Sindle v. New York City Transit Authority (1973) 352 NYS2d 183, which concerned a false imprisonment action brought by a schoolboy who sustained injuries attempting to escape from a moving bus. Jason J, with whom the other six judges agreed, said this: Where the damages follow as a consequence of the plaintiff's detention without justification an award may include those for bodily injuries. And although confinement perceived to be unlawful may invite escape, the person falsely imprisoned is not relieved of the duty of reasonable care for his own safety in extricating himself from the unlawful detention. 108 For those reasons, I do not think that the circumstance that the false imprisonment continued until after the respondent arrived at Moruya Hospital affects either the amount of damages or the reduction for contributory negligence.

MOTOR ACCIDENTS ACT (GROUNDS 10 AND 11) 109 The word "injury" is defined as follows in s.3(1) of the Motor Accidents Act 1988 (applicable at the time of these events): "injury": (a) means personal or bodily injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle if, and only if, the injury is a result of and is caused during: (i) the driving of the vehicle, or (ii) a collision, or action taken to avoid a collision, with the vehicle, or (iii) the vehicle's running out of control, or (iv) such use or operation by a defect in the vehicle, and (b) includes: (i) pre-natal injury, and (ii) psychological or psychiatric injury, and (iii) damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses. 110 For the purposes of Pt.5 of the Act, s.40 defines "claim" as follows: "claim" means a claim for damages in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle. 111 Pt.5 then sets out certain requirements that must be satisfied before proceedings are brought for a claim, including notice before action (see ss.43, 52(1A)). 112 The appellant's contention was that the respondent's wrist fracture was caused by the fault of the owner or driver of the paddy wagon, that is, by the NSW Police Service, through it servants or agents, or by the driver himself; and, on the primary judge's finding, was a result of and caused during the driving of that vehicle. Furthermore, even though the Motor Accident Act was not pleaded as a defence, and the application to raise it as a defence after conclusion of the hearing was rejected, the provisions of the statute were mandatory, and the court had to give effect to them, whether they were pleaded or not. Since the statutory pre-conditions had not been complied with, the proceedings had to be dismissed. 113 However, because the Motor Accidents Act was not pleaded, the case was conducted on the basis that it was not necessary to make a final determination whether the fracture was caused during the driving of the paddy wagon, or if so whether it was a result of the driving rather than (say) the respondent throwing himself against the side or floor of the vehicle. The respondent established facts sufficient to show liability on general law principles. If the appellant wished to contend that the Motor Accidents Act meant that the respondent could not recover, it was necessary for the appellant to secure findings that the injury was a result of and caused during the driving; and it did not do so. The statement by the primary judge that it was "most likely" that the injury occurred during the driving, in the course of making a finding on the balance of probabilities that it occurred between arrest and arrival at Moruya, was not a finding on the balance of probabilities that it occurred during the driving; and even if it had been, there was certainly no finding that the injury was caused by the driving rather than by the respondent throwing himself around. 114 Had the primary judge allowed the amendment which was sought after the end of the hearing, it would then have been necessary for him to address squarely issues which had never been fought during the case, and to attempt to give natural justice in doing so; so plainly it was not an appellable error not to allow the amendment. Accordingly, the primary judge was never required to make, and never did make, findings which were necessary if the appellant was to succeed on the basis of the Motor Accidents Act. 115 Accordingly, this ground also fails.

COMPENSATORY DAMAGES FOR ASSAULT (GROUND 9) 116 Mr. Maconachie submitted that the unlawful detention was short, and insignificant in comparison with the effects of the longer lawful detention. The primary judge held that the physical injury directly attributable to the torts of assault, battery and false imprisonment was limited to bruising and tenosynovitis, together with other injury of relatively short duration. The primary judge ruled out serious long-term psychological damage; and although the damages could include damages for injury to the respondent's feelings, they must be limited to damages for injury caused during the short period of unlawful arrest. In those circumstances, Mr. Maconachie submitted, $40,000.00 was manifestly out of proportion to the gravity of the injury. 117 In my opinion, the physical injuries of bruising and tenosynovitis were significant injuries; and although the primary judge excluded serious long-term psychological damage, the assaults did cause significant distress and mental upset to the respondent for which, quite apart from any question of aggravated damages, the respondent was entitled to be compensated. I would not infer that the primary judge awarded damages for upset caused by the subsequent lawful detention. In my opinion, the award of $40,000.00 was not excessive, so this ground also fails.

AGGRAVATED DAMAGES (GROUND 1) 118 In order to deal with the questions of aggravated damages, and also exemplary damages, it is convenient first to set out the most relevant parts of the primary judge's judgment. 119 The primary judge began his discussion of damages as follows: The allocation of damages amongst the various causes of action in which the plaintiff has succeeded is complicated by the extent to which the causes of action and their consequences overlap. In such circumstances particular care has to be taken to ensure that neither the plaintiff benefits from duplication nor the defendant from a failure to compensate any aspect of the plaintiff's loss which is compensable. In particular the plaintiff's physical injuries are a consequence of the combination of intentional wrongdoing in the course of the arrest and detention of the plaintiff and negligence either contemporaneous with the intentional wrongs or arising out of conduct at a point where no intentional wrong was involved. In this respect I have attempted to identify those injuries which were directly attributable to the assault, battery and false imprisonment of the plaintiff which the plaintiff is entitled to have assessed independent of any reduction for contributory negligence. Compensation for the injuries properly attributable to the defendant's negligence on the other hand is subject to a reduction for the degree of contributory negligence which has been found against the plaintiff.

Difficulties of allocation are not confined to compensatory damages for physical injury but extend to the plaintiff's claim for psychiatric injury. For reasons given later in the judgment I am not satisfied that the plaintiff has made a case for the award of a substantial sum by way of compensation for psychiatric injury as an independent component of damage. The compensable psychological consequences of the conduct of police on 4-5 July does not go beyond the short term impact of a kind which any person might be expected to experience as a result of being subjected to the ordeal endured by the plaintiff on that night. Such injury can be appropriately and adequately accounted for in the damages awarded by way of compensatory and/or aggravated damages attributable to the assault, battery and false imprisonment. 120 He proceeded then to deal with damages for the events of 4 and 5 July 1997, starting with compensatory damages. Then, in dealing with aggravated damages, he said this: In assessing aggravated damages, the extent to which the defendant should have to answer for the effect of the continuing detention of the plaintiff and his ultimate admission to Kenmore Hospital takes on particular importance. I have already found that the primary responsibility of the police came to an end when the plaintiff was scheduled by Dr Beazley. There was no false imprisonment for which the police were directly responsible from that time. I have also found that the exercise of the power under s 24 of the Mental Health Act was a valid and that therefore the false imprisonment as such ceased from the time a decision was made by Sergeant Wilson to have the plaintiff transported to Moruya Hospital for medical assessment. However, from the time of the plaintiffs arrest the police set in train a sequence of events which, from the point of view of damages, did not cease when the false imprisonment itself ended. Putting aside the unlawfulness of the plaintiff's arrest, whatever other justification there may have been for the initial detention of the plaintiff dissipated as the police progressively obtained information which countered their early suspicions. They persisted in detaining the plaintiff notwithstanding that no firearm was discovered on his person, in the car in which he was travelling or during the initial clearance of the house even though the latter was not specifically for the purpose of locating a firearm. The apparent determination to find some basis on which the plaintiff's detention could be prolonged coloured the judgment of the police and set in train the sequence of events which continued until the plaintiff was finally released from Kenmore more than two days later. ...aggravated damages, in contrast to exemplary damages are compensatory in nature, being awarded for injury to the plaintiffs feelings caused by insult, humiliation and the like. (Lamb v Cotogno (1987) 164 CLR 1, per Mason CJ, Brennan, Deane, Dawson and Gaudron JJ at 8; cited in Hunter Area Health Service v Marchlewski) (2000 51 NSWLR 268, per Mason J at 285)

The effect of the experience of that night on the plaintiff was graphically described by him in his evidence: ...I was still in the same clothes from Friday night being a pair of sleeveless overalls and a coat and had to travel all the way back from Goulburn to Bermagui in winter time, that was very, very hard for me and then arriving back to the place that I lived, I felt stigmatised because I'd been to the nut house, apart from the fact that my wrists were both very sore.

These were consequences which in a very real sense amounted to an aggravation of the injury caused by the wrongful arrest. The result was a significant increase in the adverse psychological consequences of the defendant's wrongdoing and justify a substantial award for aggravated damages relative to the compensatory damages already assessed. An appropriate amount in the circumstances is $40,000. 121 Then, he dealt with exemplary damages, as follows: Both aggravated and exemplary damages are at large. There is therefore, even in cases where such damages are appropriate, very little guidance on the quantum. I have nonetheless been assisted by two recent decisions of the Court of Appeal, Adams v Kennedy (2000) 49 NSWLR 78 and Lee v Kennedy (unreported) [2000] NSWCA 153. The first in particular bears some significant similarities to this case. Like this case Adams v Kennedy concerned an unlawful arrest during which the plaintiff was handcuffed behind his back while he was on the ground. However, one of his arms was wrenched in the process causing a massive rupture of the rotator cuff tendon. That injury was far more serious than any injury attributable to intentional acts on the part of the police officers in this case. There were also other respects in which the conduct of police officers in Adams v Kennedy were more reprehensible. For example, the police first arrived at the plaintiff's premises in that case uninvited in contrast to the response in this case to openly provocative behaviour on the part of the plaintiff.

While an overall comparison of the facts in Adams v Kennedy with those before me would suggest that any award of exemplary damages if appropriate in this case should be less than the sum awarded in Adams v Kennedy, there are a number of reasons why exemplary damages should still be awarded. First of all there is the fact that, as in Adams v Kennedy, the arrest was made in breach of the procedures laid down to prevent arbitrary arrest. In this case Senior Constables Wallace and Heinjus exceeded the orders given by their Field Commander which were restricted to interception and search. Secondly, the plaintiff was subjected to application of physical force entirely out of proportion to the limited threat, if any, presented by him immediately preceding his arrest. Thirdly, although in this regard care has to be taken not to duplicate aggravated damages, the forceful detention of the plaintiff persisted in the face of the falling away of any grounds to justify such detention. The conduct of the police officers in those circumstances was highhanded and displayed a "contumelious disregard of the plaintiff's rights" (Uren v John Fairfax and Sons Pty Ltd (1966) 117 CLR 118). The plaintiff is entitled to a substantial sum byway of exemplary damages which I assess at $40,000. 122 Mr. Maconachie submitted that the primary judge's award of aggravated damages was vitiated in that damages were awarded for consequences of lawful detention; and also that the primary judge erred in holding aggravated damages were appropriate in this case. He submitted that, having regard to the respondent's provocative conduct and the difficult circumstances in which the police officers were placed, it could not be said that they acted in such a manner or with such a mental state as to justify aggravated damages. 123 Mr. Toner did not contest that, to the extent that the primary judge awarded damages for consequences of lawful detention, there was error. However, he submitted that an award of aggravated damages was justified, and that the amount awarded was not excessive. 124 Mr. Toner submitted that this was a stark example of high-handed disregard by police for the liberty of the subject. The respondent was distraught, following his mother's death, and extremely vulnerable to this sort of conduct by the police. It would be offensive to describe the default of the police as merely technical. They knew the respondent was profoundly emotionally disturbed. This, and the fact that he was drunk, was obvious from his conduct. The respondent was detained in the middle of the night, seized and handcuffed with excessive force, and thrown in the back of the wagon, yet with no information being given to him as to why this was happening. There was no provocation directed towards the police. It was fundamental to the discharge of police duties that they should know their powers of arrest and the requirements for their exercise, yet the police flagrantly ignored all their obligations. Furthermore, any element of heat of the moment progressively fell away; yet still the respondent was given no explanation. Persons with mental disturbance were extremely vulnerable, and it was important to signal that the exercise of arbitrary powers against them was not acceptable. Finally, Mr. Toner submitted that aggravated and exemplary damages were discretionary, so that the appeal court would be reluctant to interfere. 125 I find it necessary first to consider principles applicable to the award of aggravated damages. 126 First, as stated by the joint judgment of the High Court in Lamb v. Cotogno (1987) 164 CLR 1 at 8: Aggravated damages, in contrast to exemplary damages, are compensatory in nature, being awarded for injury to the plaintiff's feelings caused by insult, humiliation and the like. 127 That immediately raises the question, what is it that distinguishes aggravated damages from ordinary compensatory damages? Ordinary compensatory damages are supposed to be an amount adequate to compensate the plaintiff for all consequences of the defendant's wrongful conduct that are not too remote; so what room is there for additional damages, which although dependent on some aggravating feature of the defendant's wrongful conduct, are still supposed to do no more than compensate for consequences of that conduct? 128 In cases where the wrongful conduct is trespass to land, for which damages for psychological injuries are not generally awarded, one can say that aggravated damages are compensatory damages for injury to the plaintiff's feelings by the manner of the trespass, which would not otherwise have been awarded. 129 But aggravated damages are also awarded in cases where ordinary compensatory damages for injury to feelings are generally awarded, such as assault or defamation. 130 If, in addition to ordinary compensatory damages for injury to feelings, aggravated damages are to be awarded, then plainly it is important to avoid double counting; and the question arises, what can the additional aggravated damages be compensation for when injury to feelings have already been included in ordinary compensatory damages? 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. 132 That approach is consistent with what Lord Reid said in Cassell & Co. Ltd. v. Broome [1972] AC 1027 at 1085: Damages for any tort are or ought to be fixed at a sum which will compensate the plaintiff, so far as money can do it, for all the injury which he has suffered. Where the injury is material and has been ascertained it is generally possible to assess damages with some precision. But that is not so where he has been caused mental distress or when his reputation has been attacked - where, to use the traditional phrase, he has been held up to hatred, ridicule or contempt. Not only is it impossible to ascertain how far other people's minds have been affected, it is almost impossible to equate the damage to a sum of money. Any one person trying to fix a sum as compensation will probably find in his mind a wide bracket within which any sum could be regarded by him as not unreasonable - and different people will come to different conclusions. So in the end there will probably be a wide gap between the sum which on an objective view could be regarded as the least and the sum which could be regarded as the most to which the plaintiff is entitled as compensation.

It has long been recognised that in determining what sum within that bracket should be awarded, a jury, or other tribunal, is entitled to have regard to the conduct of the defendant. He may have behaved in a high-handed, malicious, insulting or oppressive manner in committing the tort or he or his counsel may at the trial have aggravated the injury by what they there said. That would justify going to the top of the bracket and awarding as damages the largest sum that could fairly be regarded as compensation. 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. 134 In this case, as accepted by the respondent, the primary judge awarded aggravated damages on a wrong basis, namely for hurt feelings caused by lawful detention. Both parties ask that this Court resolve all questions, rather than send the matter back for any re-trial; so this Court must decide whether it should award aggravated damages and if so, in what amount. Plainly, the primary judge did include compensation for hurt feelings in his award of $40,000.00 compensatory damages, though it is not possible to say how much, with any precision. Thus, there are two issues. First, was the police conduct such as to justify aggravated damages? And second, if so, what increment to ordinary compensatory damages for hurt feelings is justified? 135 Before answering these questions, it is convenient to consider the arguments in relation to exemplary damages, as the two topics are not unrelated.

EXEMPLARY DAMAGES (GROUND 2) 136 Mr. Maconachie submitted that, in awarding exemplary damages, the primary judge acted contrary to the principle that exemplary damages are an exceptional remedy which are rarely awarded: Gray v. Motor Accidents Commission (1998) 196 CLR 1 at [12] and [20]. He submitted that such damages are awarded only where there is "high-handed, insolent, vindictive or malicious conduct" amounting to or exhibiting a "conscious wrong-doing in contumelious disregard of another's rights": Whitfeld v. De Lauret & Co. Ltd. (1920) 29 CLR 71 at 77, Gray at [14]. Contrary to the view of the primary judge, the present case had little similarity with Adams v. Kennedy (2000) 49 NSWLR 78: in that case, there was no provocation, no apprehension of danger, and no concern for the victim's well-being. The provocation could preclude exemplary damages: Fontin v. Katapodis (1962) 108 CLR 177 at 187; Lamb v. Cotogno (1987) 164 CLR 1 at 13. Further, some of the primary judge's reasons were themselves erroneous: Constables Wallace and Heinjus did not exceed orders given by their commander, and the view that there was a falling away of grounds to justify detention was contrary to the finding that detention was justified under the Mental Health Act. 137 Mr. Toner relied on the submissions set out earlier in relation to aggravated damages. He submitted that the arrest was in breach of procedures laid down to prevent arbitrary arrests; the arresting police exceeded orders given by Sergeant Wilson; the application of physical force was entirely out of proportion to the limited threat, if any; forceful detention persisted after the reason for it fell away; the police conduct was high-handed; comparisons with Adams v. Kennedy were justified; and the primary judge did not ignore "provocation". 138 In my opinion, as made clear in Gray, while "conscious wrong-doing in contumelious disregard of another's rights" describes the greater part of the field in which exemplary damages may properly be awarded, it does not fully cover that field. Similarly, malice is not essential: Lamb v. Cotogno. Conduct may be high-handed, outrageous, and show contempt for the rights of others, even if it is not malicious or even conscious wrong-doing. However, ordinarily conduct attracting exemplary damages will be of this general nature, and the conduct must be such that an award of compensatory damages does not sufficiently express the court's disapproval or (in cases where the defendant stood to gain more than the plaintiff lost) demonstrate that wrongful conduct should not be to the advantage of the wrong-doer. 139 In this case, there is no question of the police seeking advantage for themselves, certainly not financial advantage. There is no finding of malice against the police. However, it is extremely important that police know and observe the limits and conditions for valid arrest. Furthermore, the use of excessive force in the application of the handcuffs was itself a most serious matter. On the other hand, the police here were faced with a difficult and possibly dangerous situation, and had to deal with it effectively to protect the respondent, the police themselves, and also other persons in the vicinity. 140 The case is certainly very different from Adams, where there was no emergency or difficult or dangerous situation, except to the extent that such a situation was created by the police themselves. Although the primary judge said that this case was less serious than Adams, the failure to recognise this fundamental difference between the present case and Adams is to my mind suggestive of error. In my opinion, the primary judge was also in error in finding that Constables Wallace and Heinjus exceeded orders restricted to interception and search. Implicit in Sergeant Wilson's orders, in my opinion, was that Senior Constables Wallace and Heinjus should take whatever action was called for by what occurred as a result of stopping the vehicle and searching the vehicle and its occupants. In my opinion also, the characterisation of the situation then facing those officers as one of a "limited threat, if any" does erroneously understate the nature of the situation which they faced, being one where to all appearances one of the occupants of the car had discharged a firearm on a number of occasions and was acting angrily and irrationally. In my opinion, these matters are sufficient to undermine the primary judge's finding on exemplary damages for assault; and again, in the light of the wish of the parties that there be no further trial, it is for this Court to determine whether there should be an award of exemplary damages, and if so, in what amount. 141 I have found the question of whether the police conduct in this case merited an award of either aggravated or exemplary damages a difficult one. Certainly, it is of the highest importance that police officers know and observe the limits and conditions for valid arrest. Certainly, the use of excessive force, particularly the over-tight application of handcuffs causing significant injury to the respondent, was a most serious matter. Furthermore, the courts must be astute to protect the rights of persons whose behaviour is disturbed by traumatic events in their lives. On the other hand, in my opinion the police were faced with a difficult and potentially very dangerous situation, which had been created by the respondent's own conduct, in either discharging a firearm or acting so as to give rise to a very reasonable apprehension that he had done so. The primary judge did not find malice in the police, and did not find that the police were not, to some extent at least, acting out of concern for the respondent's own interests. If it is assumed that $100,000.00 was an appropriate award of exemplary damages in the case of Adams, it is very clear to my mind that an award of $40,000.00 would be significantly excessive in this case. 142 On balance, I do not think the police conduct in this case was beyond ordinary human fallibility so as to justify any increment to the ordinary compensatory damages for hurt feelings already included in the award of $40,000.00 compensatory damages for the assaults; so I do not think an additional award of aggravated damages for the assaults is justified. Similarly, I do not think an award of exemplary damages for the assaults is justified. 143 As regards the $5,000.00 exemplary damages awarded for the trespass to property constituted by the second search of the property, my view is that, in circumstances where no actual damage to the property was found, the so-called compensatory award of $8,000.00 was a sufficient award of damages for this tort, and must be considered as including some allowance for the affront to the respondent's feelings caused by the search. In my opinion, it was excessive to add to this a further $5,000.00 as exemplary damages.

CONCLUSION 144 In the result, the appeal should be allowed to the extent of reducing damages by $85,000.00, but otherwise the appeal should be dismissed. The cross-appeal should be dismissed. 145 As regards costs, I think the appropriate order is that the respondent pay one-half the appellant's costs of the appeal and cross-appeal, and have a Suitors Fund certificate in respect of his costs of the appeal, if otherwise entitled. If either party wishes to seek an order changing the costs orders made below, this should be done by written submissions provided within 7 days, with the other party having leave to reply by written submissions within a further 7 days. 146 Accordingly, I propose the following orders: 1. Appeal allowed to the extent of reducing the respondent's damages by $85,000.00 to $185,307.42. 2. Appeal otherwise dismissed. 3. Cross-appeal dismissed. 4. Respondent to pay one-half of the appellant's costs of the appeal and cross-appeal, and to have a suitor's fund certificate in respect of his costs of the appeal, if otherwise entitled. 5. Leave to make submissions on the costs below, in accordance with the judgment. 147 NICHOLAS J: I agree with Sheller JA and Hodgson JA. **********

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Mental Health Act 1990(NSW)

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