State of New South Wales v Steven Charles Radford

Court of Appeal (NSW)|2010-08-16|Before: Beazley JA, Macfarlan JA

BACKGROUND 12 At about 7 am on 15 December 1999, a number of police officers attended the respondent's home in order to execute a lawful search warrant. The warrant had been granted on the basis that the respondent was suspected of supplying heroin. 13 The respondent was arrested after a scuffle. There is a factual dispute concerning the circumstances of the physical confrontation. However, the respondent claims that the arresting police officer used unnecessary and excessive force. There is no dispute that, whatever the circumstances of his arrest, the respondent in consequence of the scuffle suffered physical injuries and required medical treatment. 14 Following his arrest, the respondent remained in custody. He was convicted in October 2000 of drug-related offences and was sentenced to a term of imprisonment. The respondent was released on parole in August 2004. 15 On 23 July 2000, while in custody, the respondent complained to the Ombudsman that he had been assaulted by the police who had arrested him. An internal police investigation was conducted into the allegations, but in August 2001 the respondent was informed that his allegations were rejected by the Police Service. 16 On 14 December 2005, one day short of six years after his arrest, the respondent commenced the present proceedings by filing a statement of claim. The statement of claim joined as defendants the "NSW Police Service" and three police officers (namely, Mr Deas, Mr Brown and Mr Thomas). The NSW Police Service was said to be sued pursuant to s 5 of the Crown Proceedings Act 1988. 17 The respondent's statement of claim alleged that in the course of the arrest, the named police officers assaulted the respondent by striking him, throwing him to the floor and against furniture and by manhandling him with excessive force. The respondent further alleged that: "in consequence of the assaults … [he] suffered injuries and continues to suffer disabilities, loss and damage as a consequence of the said injuries." 18 The particulars of loss and damage identified physical injuries suffered by the respondent. They also identified continuing physical disabilities as well as "psychiatric disabilities including psychosis and schizophrenia". The respondent claimed $750,000 in damages. No claim was made for aggravated or exemplary damages. 19 The respondent filed an amended statement of claim on 24 March 2006. In this pleading, the respondent named the State as the defendant and deleted the police officers as parties to the proceedings. In its defence, the State admitted that the respondent had suffered personal injury at the time of his arrest. No doubt the State's admission that the respondent had suffered personal injury at the time of his arrest was motivated, at least in part, by the terms of s 18A(2) of the Limitation Act, which imposes a three year limitation period for causes of action founded on breach of duty for "damages for personal injury". 20 The respondent filed a further amended statement of claim on 8 December 2006. This version of the pleading named three additional police officers as breaching their duty of care to the respondent by failing to take him directly to hospital after his arrest (para 5). Otherwise the pleading was in substantially the same form as its predecessor. 21 On 19 January 2007, the State filed a motion seeking to strike out or dismiss the respondent's second amended statement of claim on the ground that the claim was statute barred by reason of s 18A(2) of the Limitation Act. 22 The respondent filed another amended statement of claim on 26 April 2007. This amended the particulars of continuing disability to include "mis-diagnosis by NSW Corrective Service of schizophrenia and subsequent administration of incorrect indications …" (para 6(k)). 23 On 5 June 2007, the State filed an amended motion ("State's Motion") seeking orders that:

(1) the respondent's statement of claim filed on 26 April 2007 be struck out and/or dismissed on the ground that it was statute barred pursuant to s 18A of the Limitation Act 1969; and

(2) paras 5 and 6(k) of the statement of claim be struck out pursuant to the UCPR , r 14.28. 24 The respondent filed yet another amended statement of claim on 2 June 2008. This pleaded that additional police officers had been involved in the alleged assault or breach of duty. The pleading also alleged that the respondent had sustained additional disabilities in consequence of the assault. The claim relating to the misdiagnosis of schizophrenia was omitted, but the respondent now included "psychological trauma" among his continuing disabilities. 25 On 26 June 2009, the respondent filed a motion seeking leave to proceed upon a proposed further amended statement of claim ("4th ASC"). The 4th ASC abandoned any claim to compensatory damages for the previously particularised personal injuries and disabilities. Instead, it pleaded a case based on trespass to the person and false imprisonment and sought unspecified aggravated and exemplary damages. The false imprisonment claim alleged that the use of excessive force rendered the respondent's arrest unlawful and that, as a result of the arrest becoming unlawful, the respondent had been detained unlawfully. It is clear enough that the 4th ASC omitted the claim for damages for physical injuries in an attempt to overcome the difficulty that s 18A(2) of the Limitation Act imposes a three year limitation period for a cause of action founded on breach of duty for damages for personal injury. 26 On 6 August 2009, the primary Judge heard argument on the State's motion and the respondent's motion of 26 June 2009. In the course of the hearing, counsel for the respondent handed up the 4th ASC. Counsel noted at the time that the pleading was a "little confusing" because it did not make clear that aggravated and exemplary damages were claimed both in relation to the alleged assault and the alleged unlawful imprisonment. Presumably in order to remove the confusion, a different version of the 4th ASC was later handed up to the primary Judge. This version made it clear that aggravated and exemplary damages were sought both in relation to the alleged assault and the alleged unlawful imprisonment. 27 After hearing argument on the two motions, the primary Judge directed the parties to file written submissions by 28 August 2009. Pending receipt of the written submissions, his Honour reserved judgment. 28 It is not clear whether the parties filed any further written submissions. In any event, on 9 September 2009, before his Honour delivered judgment, the respondent filed an amended motion ("Respondent's Motion"). The respondent's Motion sought an order that the matter "move forward upon the basis of the [5th ASC]". The proposed 5th ASC was annexed to an affidavit of the respondent's solicitor. 29 The 5th ASC was identical to the second version of the 4th ASC, except that it included a new para 11 that did not appear in the earlier version. The relevant paragraphs of the 5th ASC are as follows: "3. At about 7:00 am on the 15 of December 1999 Donald Mark Brown, Simon James Thomas, and Peter Ronald Deas, and other police officers who cannot be named arrested the plaintiff in the house of Paul James, who was the owner, at 18 John Street, Tighes Hill, NSW. Trespass to the person 4. In the course of the said arrest of the plaintiff Thomas, Brown, and Deas and other officers of the NSW Police Department handcuffed the Plaintiff, assaulting him striking and punching using extreme and excessive force, repeatedly punching him to the head and forcing his face into splinters of glass on the floor. … 7. The force used in restraining him was excessive and beyond that which was needed to restrain or arrest the Plaintiff in circumstances where he offered no resistance to the police officers concerned. Unlawful imprisonment 8. The use of excessive force rendered the arrest unlawful. 9. As a result of his arrest becoming unlawful the plaintiff was detained unlawfully. 10. In the premises the plaintiff was unlawfully imprisoned and deprived of his liberty, and the Defendant is liable for the Plaintiff in respect of such imprisonment. 11. The Plaintiff suffered emotional upset, anxiety, distress and humiliation by virtue of both the trespass to the person and the unlawful imprisonment beyond that which could result from the use of any reasonable degree of force by the police. 12. The plaintiff claims aggravated and exemplary damages. 13. The police concerned were at all material times under the direction and control of the Defendant and the Defendant was liable for their actions." (Emphasis represents the amendment to 4 th ASC.) 30 The primary Judge heard the Respondent's Motion on 23 October 2009. Counsel for the respondent explained that the 5th ASC had incorporated para 11 in order to make it clear that the respondent wished to claim damages by reason of the emotional upset, anxiety, distress and humiliation that he claimed to have suffered by reason of the assault and the wrongful imprisonment. It seems that the inclusion of para 11 in the 5th ASC was prompted by observations in the State's written submissions filed prior to the hearing of 6 August 2009. In those submissions it was pointed out, on the authority of Myer Stores Ltd v Soo [1991] 2 VR 597, that damages in an action for false imprisonment are generally awarded for a loss of dignity, mental suffering, disgrace and humiliation and that no such claim had been made in the 4th ASC. 31 Counsel for the State, at the hearing on 23 October 2009 opposed a grant of leave to the respondent to file the 5th ASC. Brief argument took place, but the parties did not repeat the submissions previously put to the primary Judge. Again his Honour reserved judgment.

THE PRIMARY JUDGMENT 32 On 30 October 2009, the primary Judge delivered a judgment in which he dismissed the State's motion and granted the respondent leave to file the 5th ASC. His Honour ordered the respondent to pay both the costs of the State's Motion and the State's costs of the Respondent's Motion, including the costs of the motion filed on 26 June 2009. 33 The primary Judge observed (at [23]) that if the State's Motion was the only application before him, he would have been likely to hold that the original statement of claim, filed on 15 December 2005, was statute barred by reason of the expiration of the three year limitation period imposed by s 18A(2) of the Limitation Act. However, in view of the other motions that had been filed, his Honour considered it unnecessary to decide the point. 34 The primary Judge concluded (at [25]) that, despite the lateness of the Respondent's Motion, the interests of justice required that the respondent should be able to argue the merits of his application for leave to file the 5th ASC. Moreover, "as a competent adult" the respondent was entitled to abandon his claim for compensatory damages for the alleged assault and to limit his claim to exemplary and aggravated damages. His Honour pointed out that this was the effect of the 5th ASC, which relied on the human emotions of upset, anxiety, distress and humiliation that were said to be the natural consequence of the assault. Nonetheless, given the limitation bar on his claim for compensatory damages, his Honour accepted that the respondent required leave to press his freshly formulated claim for damages of a different character. 35 The primary Judge identified two questions requiring attention. The first was whether a claim for exemplary and aggravated damages, as sought in the 5th ASC, amounted to a cause of action, founded on breach of duty, for "damages for personal injury" within the meaning of s 18A of the Limitation Act. If so, the relief sought in the proposed 5th ASC would have been barred by s 18A(2) at the time these proceedings were commenced and no order could be made under s 65(2)(c) of the CP Act to add the new cause of action to the respondent's claim. If, however, the respondent's proposed claim was not a claim for "damages for personal injury", the second question was whether the State would sustain prejudice such that leave to file the 5th ASC should be refused. 36 The primary Judge considered that aggravated damages are "awardable for injury to feelings caused by insult, humiliation and the like", while exemplary damages are punitive rather than compensatory in character. His Honour accepted the respondent's contention that damages can be claimed for trespass to the person without seeking damages for personal injury. He said that trespass to the person is actionable per se, that is without proof of damage. In any event, the respondent had a claim for injury to his "dignitary interest", which was capable of attracting aggravated and exemplary damages if the relevant conduct could be proved. 37 His Honour concluded that the respondent had demonstrated an arguable case that required determination on the merits. The respondent's claim for damages, as formulated in the 5th ASC, was not "strictly" a claim for damages for personal injury and was thus not caught by s 18A(2) of the Limitation Act. It was therefore open to the Court to permit the respondent to amend his pleadings in accordance with the 5th ASC. 38 The primary Judge rejected the State's contention that it would suffer irremediable prejudice in defending the respondent's claim if leave to file the 5th ASC were granted. His Honour noted that the affidavit evidence showed that of the nine police officers identified in the 5th ASC, one had died, three had been discharged on grounds of medical unfitness and two others had been on continuous leave for long periods. There was also medical evidence that some of the police officers would or might not be fit to give evidence. 39 While his Honour did not dismiss the medical evidence, he considered that the interests of the witnesses were "secondary" to the overriding interest of achieving justice between the parties. The fact that there had been an internal police investigation into the respondent's allegations showed that: "there is a body of records and material which could be marshalled by the [State] for the purpose of use in defending the [respondent's] claims."

The State's claim of prejudice was largely based on the comfort of potential witnesses. The evidence did not demonstrate that the State had demonstrated prejudice " in the relevant sense ". Accordingly, the primary Judge granted leave to the respondent to file the 5 th ASC. 40 The primary Judge addressed the question of costs as follows: "The first motion has been overtaken by events and in a sense it is no longer relevant. However, it was the action of the [State] in taking out that motion that ultimately led the [respondent] to pursue the course he has taken, and which has led to him being granted leave to proceed. In the second and third motions it was the [respondent] who has sought the procedural indulgence. Whilst there is no inflexible rule that requires the party who is seeking an indulgence to pay the costs of obtaining an indulgence, in this instance, because of the delays involved in bringing the proceedings and the applications, I consider that to be the appropriate order in respect of all three motions." 41 The primary Judge did not address in his judgment the question of whether the 5th ASC pleaded causes of action arose from the same or substantially the same facts as those giving rise to an existing cause of action. The State's written submissions to the primary Judge had contended that the cause of action founded on false imprisonment did not arise from substantially the same facts as those giving rise to the assault pleaded earlier. While the contention was not developed, the State pointed out in its written submissions to his Honour that false imprisonment is committed when the voluntary conduct of one person directly subjects another to total deprivation of movement and that, while false imprisonment may be accompanied by assault or battery, the elements of the tort do not require proof of assault. The State made no equivalent submission in relation to the respondent's claim for aggravated and exemplary damages by reason of the alleged assault.

State's Submissions 42 The State did not press all the arguments referred to in its written submissions filed on the application for leave to appeal. Mr Windsor SC, who appeared with Mr Bateman for the State, identified four submissions upon which the State relied. 43 First, he contended that the primary Judge erred in dealing with the motions out of order. In particular, he submitted that his Honour should have dealt with the State's Motion before addressing the respondent's application for leave to file the 5th ASC. Had he done so, s 65 of the CP Act may have had no application to the case since the respondent's then current statement of claim would have been struck out or dismissed. 44 Secondly, Mr Windsor argued that the respondent's claim for aggravated damages as pleaded in the 5th ASC was a claim for "damages for personal injury" within s 18A(1) of the Limitation Act and, by reason of s 18A(2), had to be brought within three years from the date of the accrual of the cause of action. According to Mr Windsor, the claim for aggravated damages was a claim for something "akin to pain and suffering" and therefore could be characterised as a claim for "damages for personal injury". Since the respondent had not commenced any proceedings within the three year period, any order under s 65(2)(c) of the CP Act could not prevent the cause of action seeking aggravated damages from being statute barred. In particular, the inclusion of para 11 in the 5th ASC, which referred to the respondent suffering emotional upset, anxiety and distress, demonstrated that the respondent was claiming damages for personal injury. This claim, so the State argued, could properly be described as one for "impairment of the … mental condition of a person" for the purposes of the definition of "personal injury" in s 11 of the Limitation Act. 45 Mr Windsor further contended that if the respondent could not claim aggravated damages, he could not claim exemplary damages. This was said to follow because exemplary damages are "parasitic" on compensatory damages: "[a]warding exemplary damages in the absence of compensatory damages would be inconsistent with the principle that exemplary damages should be awarded if, but only if, the sum awarded as compensation [is] inadequate to punish the defendant, deter the defendant and others from similar conduct and mark the court's disapproval of the conduct." 46 Thirdly, the primary Judge erred in granting leave to the respondent to file the 5th ASC without referring to the terms of UCPR 14.28(1). Mr Windsor emphasised the language of r 14.28(1)(b) which allows the Court to strike out a pleading that has a tendency to cause prejudice, embarrassment or delay in the proceedings. 47 Fourthly, the primary Judge erred by failing to find that the respondent's pleaded cause of action in false imprisonment did not arise out of the same or substantially the same facts as the cause of action founded on assault. Mr Windsor submitted, without citation of authority, that the false imprisonment claim required proof of additional facts and thus could not satisfy the requirements of s 65(2)(c) of the CP Act in any event. 48 Mr Windsor submitted that the case was appropriate for a grant of leave to appeal because arguments raised were important and resolution of the issues at this stage, if the State succeeded, would avoid the necessity for a potentially lengthy and expensive trial.

Respondent's Submissions 49 The respondent submitted that there was no substance in the first and third contentions advanced on behalf of the State and that neither warranted a grant of leave to appeal. 50 Mr Berwick, who appeared for the respondent, submitted that the claim, as pleaded and particularised in the 5th ASC was not a claim for "damages for personal injury" within the meaning of s 18A(2) of the Limitation Act. He contended that the law of trespass, as the primary Judge held, protects a "dignitary interest" in the person, as well as allowing recovery of compensation for the physical effects of the trespass. The respondent was entitled to frame his claim as he saw fit and was free to abandon his claim for damages for personal injury if he wished to do so. The 5th ASC advances a claim for damages that was entirely independent of any claim that the respondent may have had for damages for personal injury. 51 Mr Berwick submitted without citation of authority, that the false imprisonment claim arose out of substantially the same facts as those previously pleaded by the respondent. He identified the allegation that excessive force rendered the respondent's arrest unlawful as the key to the false imprisonment claim. According to Mr Berwick, this allegation depended on the same facts as the cause of action founded on assault. 52 During argument in this Court, the question was raised whether it might be appropriate to postpone the determination of whether the respondent's claim was one for "damages for personal injury" until after a trial at which factual findings are made. Mr Berwick indicated that the respondent had no objection to that course of action. He further accepted that if this Court were not to disturb the primary Judge's grant of leave to file the 5th ASC, it would still be open to the State to contend that the respondent's claim is statute barred, in whole or in part, by reason of s 18A(2) of the Limitation Act. The determination of that question would thus be a matter for the trial Judge in the light of the findings of fact at the trial. However, for reasons that will appear, I think that the issues raised by the parties can and should be resolved by this Court.

Procedural Issues 53 Two of the arguments relied on by the State in support of its application for leave to appeal can be dealt with briefly. The complaint that his Honour addressed the motions out of order, even if correct, would not justify a grant of leave to appeal. Even if his Honour had first considered whether to strike out the 4th ASC, or some earlier version of the respondent's pleading, it still would have been necessary to consider whether the respondent was to be granted leave to file the 5th ASC. As Mr Windsor acknowledged, it would have been open to his Honour to defer making formal orders in relation to the 4th ASC to enable him to deal with the Respondent's Motion seeking leave, pursuant to s 65(2)(c) of the CP Act, to rely on the 5th ASC. It is difficult to see why his Honour would not have taken that course in order to ensure that he addressed the substance of the respondent's application. His Honour's decision to proceed directly to the latter question involved no prejudice to the State. 54 Similarly, the State's claim that the primary Judge failed to have regard to UCPR r 14.28(1) would not justify a grant of leave to appeal. Rule 14.28(1) permits the court at any stage of the proceedings to order that the whole or part of a pleading be struck out on one or more of the specified grounds. The State relied on r 14.28(1) before the primary Judge in its strike out application, which was directed at the then current version of the respondent's pleading. The State's resistance to the respondent being granted leave to file the 5th ASC was based primarily on its contentions that the 5th ASC pleaded a cause of action founded on breach of duty for damages for personal injury within the meaning of s 18A(1) of the Limitation Act and thus was statute barred and that, in any event, the respondent could not invoke s 65(2)(c) of the CP Act to add a cause of action based on false imprisonment. Any reference to r 14.28(1) added nothing of substance to these submissions. 55 In addition, the State relied before the primary Judge on prejudice as a basis for refusing the respondent leave to file the 5th ASC. This argument, however, was directed to the manner in which the primary Judge should have exercised the discretion conferred by s 65(2)(c) of the CP Act. His Honour addressed that argument and rejected it. Had he referred to r 14.28(1), it would have added nothing to the arguments he had to consider on the question of prejudice. Indeed, as Mr Windsor accepted in argument in this Court, r 14.28(1) was never referred to in the context of submissions concerning any prejudice the State might experience if the respondent was permitted to file the 5th ASC.

False Imprisonment 56 It is convenient to deal next with the State's contention that the respondent's pleaded cause of action in false imprisonment does not arise out of the same or substantially the same facts as the cause of action founded on assault. As I have noted, the primary Judge did not address this argument. 57 Two points should be noted at the outset. The first is that, as I have noted, the respondent relied on s 65(2)(c) of the CP Act to support the grant of leave to file the 5th ASC, including para 11 which pleads damage suffered by the respondent in consequence of the alleged unlawful imprisonment. The respondent's reliance on s 65(2)(c) of the CP Act assumed that the limitation period applicable to a cause of action founded on false imprisonment is six years from the date of accrual of the cause of action, as provided by s 14(1)(b) of the Limitation Act for a cause of action founded on tort. 58 At the hearing before the primary Judge, the State's counsel conceded in oral argument that the limitation period for a cause of action based on false imprisonment is indeed six years. On the application for leave to appeal, Mr Windsor (who did not appear before the primary Judge) sought to withdraw that concession. Mr Windsor submitted that the reasoning of Campbell J in O'Neill v Foster [2004] NSWSC 906; 61 NSWLR 499, at 504-505 [20]-[23], 509-511 [39]-[44], supports the proposition that an action claiming damages for personal injury by reason of false imprisonment is a cause of action founded on "breach of duty" for damages for personal injury within the meaning of s 18A(l) of the Limitation Act. Accordingly, so he argued, the limitation period for such a cause of action is three years, as provided by s 18A(2) of the Limitation Act. If this proposition is correct, it would seem that there would be no point in a grant of leave pursuant to s 65(2)(c) of the CP Act to add the cause of action founded on false imprisonment, assuming it to be an action for damages for personal injury. The limitation period for such a cause of action would have expired three years before the respondent instituted the proceedings. 59 Secondly, the respondent's cause of action founded on false imprisonment is not pleaded satisfactorily because it does not identify the period during which he is said to have been wrongly deprived of his liberty. As Professor Fleming states (J G Fleming, The Law of Torts (9th ed, 1998), at 33): "The action for false imprisonment protects the interest in freedom from physical restraint and coercion against the wrong of intentionally and without lawful justification subjecting another to a total restraint of movement by either actively causing his confinement or preventing him from exercising his privilege of leaving the place in which he is." (Citations omitted.)

See also Watson v Marshall [1971] HCA 33; 124 CLR 621, at 626, per Walsh J. 60 The 5th ASC alleges that the use of excessive force rendered the respondent's arrest unlawful and, as a result of the illegality, he was detained unlawfully and deprived of his liberty. The pleading does not identify the period of time during which the respondent is said to have been deprived of his liberty, nor the point at which his detention ceased to be unlawful. The pleading does not identify the basis on which the use of excessive force at the time of the respondent's arrest tainted his subsequent detention, for whatever period that detention is said to have been unlawful. 61 In my view, it is necessary in an action for false imprisonment to plead the period during which the plaintiff was deprived of his or her liberty. A pleaded cause of action must identify all "essential ingredients in the title to the right which it is proposed to enforce": Williams v Milotin [1957] HCA 83; 97 CLR 465, at 474, per curiam. In the absence of a pleading identifying the period of the respondent's unlawful imprisonment, it is impossible to determine the nature and extent of the wrong suffered by the plaintiff or the damage he or she sustained by reason of the false imprisonment. Presumably for this reason, each of the precedents for a claim for damages for false imprisonment in Bullen and Leake and Jacob's Precedents of Pleadings (16th ed, 2008), vol 1, at 2-A9ff, specifies the precise period of time during which the plaintiff is alleged to have been unlawfully detained or deprived of his or her liberty. See also Symes v Mahon [1922] 2 SASR 447, at 451-452, per Murray CJ (with whom Gordon and Poole JJ agreed). 62 Section 65(2)(c) of the CP Act can be invoked by a plaintiff who wishes to add a new cause of action after the expiration of the relevant limitation period, provided the cause of action arises from the same or substantially the same facts as those giving rise to an existing cause of action and claim for relief. In the present case, there is no dispute that the pleaded cause of action in false imprisonment is a "new" cause of action. There is a dispute as to whether the cause of action in false imprisonment arises out of the substantially same facts as the cause of action in assault. But even if it does, s 65(2)(c) of the CP Act does not entitle the respondent to add the new cause of action to his statement of claim. The respondent still requires the leave of the Court to amend pursuant to s 64(2) of the CP Act. 63 The State took no point about the adequacy of the proposed pleading of the false imprisonment claim. However, it is hardly likely to be a proper exercise of discretion to grant the leave required by ss 64(1)(b) and 65(2)(c) of the CP Act to add a new cause of action to the current pleading, even if the requirements of s 65(2)(c) are satisfied, where the proposed amendment omits to plead an essential element of the cause of action. To say the least, it would be very unusual for a court to permit a pleading to be amended where the proposed amendment is liable to be struck out. 64 The inadequacy of the proposed pleading creates another difficulty which is directly relevant to the respondent's claim that the pleaded cause of action in false imprisonment arises from the same or substantially the same facts as those giving rise to an existing cause of action. It is for the respondent, or the party seeking to amend his pleadings, to demonstrate that the new cause of action arises from substantially the same facts as the existing cause of action. The defect in the 5th ASC which I have identified makes it extremely difficult if not impossible for the respondent to satisfy that requirement. 65 The language of s 65(2)(c) of the CP Act is taken from Supreme Court Rules 1970, Part 20, r 4(5). This sub-rule was in turn based on the English Rules of the Supreme Court: RSC 1965, Ord 20, r 5(5); McGee v Yeomans [1977] 1 NSWLR 273, at 278-280, per Glass JA. 66 The authorities on the predecessors to s 65(2)(c) of the CP Act do not provide precise guidance as to the construction of the statutory language. For example, the English Court of Appeal in Welsh Development Agency v Redpath Dorman Long Ltd [1994] 1 WLR 1409, at 1418, said merely that the question is essentially a "matter of impression", a view that has been adopted in other cases: see Sagacious Procurement Ltd v Mayne Group Ltd [2005] NSWSC 1238, at [24], per White J (a matter of "degree and impression"); Darlington Building Society v O'Rourke James Scourfield and McCarthy [1998] EWCA 1664. 67 Brickfield Properties Ltd v Newton [1971] 1 WLR 862, perhaps takes the matter a little further. In that case, which is frequently cited in texts on the subject of limitation of actions, the question was whether the plaintiff should be granted leave in proceedings against an architect to add a cause of action alleging negligent design of a building, as well as faulty execution of work under the architect's supervision. The Court held that the allegation of negligence in the design of a building raised a cause of action different from that alleging negligence in supervision. However the Court also held that the design and supervision claims arose out of substantially the same facts and thus the plaintiff could be given leave to amend pursuant to RSC Ord 20, r 5(5). 68 Sachs LJ, with whom Edmund Davies LJ agreed, reasoned as follows (at 873): "Where there are found in completed buildings serious defects of the type here under review the facts relating to design, execution and superintendence are inextricably entangled until such time as the court succeeds in elucidating the position through evidence. The design has inevitably to be closely examined even if the only claim relates to superintendence, and all the more so if the designs are, as is alleged here, experimental or such as need amplification as the construction progresses. The architect is under a continuing duty to check that his design will work in practice and to correct any errors which may emerge. It savours of the ridiculous for the architect to be able to say, as it was here suggested that he could say: 'true, my design was faulty, but, of course, I saw to it that the contractors followed it faithfully' and be enabled on that ground to succeed in the action. The same - or substantially the same - set of facts falls to be investigated in relation to the design claim and the superintendence claim. The plans and specifications and ancillary documents are relevant to the superintendence claim as well as to the design claim: hence the inability of the defendant to allege prejudice with regard to the preparation of his defence if this appeal is allowed. Accordingly, the 'new cause of action' falls within the ambit of R.S.C., Ord 20, r 5(5), and is one which the court has jurisdiction to permit to be pursued." 69 Cross LJ also agreed with Sachs LJ. However, he observed (at 880) that: "It is no objection to amendment under Ord 20, r 5(5) that some of the facts out of which the new cause of action arises are peculiar to it and that some of the facts out of which the old cause of action arise are peculiar to it. It is enough if the overlap is so great that the new cause of action can fairly be said to arise out of substantially the same facts as the old cause of action ." (Emphasis added.) 70 In McGee v Yeomens, the plaintiff commenced proceedings claiming damages for personal injuries sustained in an accident in New South Wales in which the allegedly negligent driver had been killed. The defendant had been granted letters of administration of the deceased driver's estate by the Supreme Court of Victoria. It was accepted that an action would not lie in New South Wales against an administrator appointed in Victoria. The plaintiff sought to amend his statement of claim outside the limitation period in order to sue the defendant as the executor de son tort in New South Wales of the estate of the deceased driver. This claim rested on an allegation that the defendant had intervened in the administration of the deceased driver's estate. 71 Glass JA, with whom Moffitt P agreed, did not find it necessary to consider the scope of SCR Part 20, r 4(5). However, Mahoney JA quoted with approval (at 284) the observations of Cross LJ in Brickfield v Newton. Mahoney JA also referred to the decision in Chatsworth Investments Ltd v Cussins (Contractors) Ltd [1969] 1 WLR 1. In that case, the plaintiff, who had sued the defendant as a party to a contract, was permitted to add a claim that the defendant had become liable by reason of the novation of the contract. The second claim was held to have arisen from substantially the same facts as the first. Mahoney JA in McGee v Yeomens, without further elaboration, held (at 285) that the proposed claim against the defendant in his capacity as executor de son tort arose out of substantially the same facts as the claim against him in his capacity as the administrator of the deceased driver. 72 There is plainly some overlap between the respondent's cause of action in assault and false imprisonment, since he alleges that the use of excessive force to effect his arrest constituted both an assault (paras 4, 7) and rendered his arrest unlawful, thereby causing him to be detained unlawfully and deprived of his liberty (paras 8-10). According to the approach taken by Cross LJ in Brickfield v Newton and followed by Mahoney LJ in McGee v Yeomans, the critical question in determining whether s 65(2)(c) of the CP Act is satisfied is whether the overlap between the essential facts on which each cause of action depends is so great that the two causes of action can be said to arise out of substantially the same facts. In the absence of a pleading identifying the length of the alleged unlawful detention and the relationship between the excessive use of force and the deprivation of liberty said to flow from it, the requisite judgment cannot in my opinion be made. 73 In my view, the primary Judge erred in not addressing a significant argument that was put to him as to why the respondent was not entitled to rely on s 65(2)(c) of the CP Act to add a cause of action founded on false imprisonment. Independently of whether it was appropriate to grant the respondent leave to file the 5th ASC incorporating an inadequately pleaded cause of action on false imprisonment, the 5th ASC does not contain sufficient pleading of material facts to enable this Court to conclude that the cause of action arises out of substantially the same facts as the pleaded cause of action on assault. His Honour therefore erred in granting leave pursuant to s 65(2)(c) and s 64(1)(b) of the CP Act to file the 5th ASC, insofar as it incorporates a claim founded on false imprisonment. 74 The State should be granted leave to appeal on this issue and the appeal should be allowed. The grant of leave to the respondent to file the 5th ASC should be set aside insofar as it relates to paras 8-10 and the words "both" and "and the unlawful imprisonment" in para 11. 75 In these circumstances, it is not necessary for the purposes of determining the respondent's entitlement to amend his pleading to include the cause of action based on false imprisonment to decide whether the limitation period applicable to the respondent's false imprisonment cause of action is three years (Limitation Act, s 18A(2)) or six years (Limitation Act, s 14(1)(b)). Nonetheless, the limitation question may be important if a different view were to be taken of the matters I have addressed. Accordingly, I think it appropriate to express an opinion on the question. 76 Section 18A(2) of the Limitation Act applies a three year limitation period, relevantly, if the cause of action is founded on breach of duty for damages for personal injury. On the assumption that the respondent is seeking damages for personal injury (a proposition he denies), it would seem that the limitation period applicable to the cause of action is three years from the date it first accrued. This conclusion follows from the reasoning of Campbell J in O'Neill v Foster, at 504-507 [20]-[29], 508-511 [36]-[45], which draws on the analysis of Adam J in Kruber v Grzesiak [1963] VR 621 and the English Court of Appeal in Letang v Cooper [1965] 1 QB 232, Campbell J's reasoning suggests that a cause of action in false imprisonment is based on a breach of duty by the defendant in the relevant sense. See also Mason v Mason [1997] 1 VR 325. 77 More particularly, the conclusion follows from the decision of the High Court in Stingel v Clark [2006] HCA 37; 226 CLR 442, which was not cited by Mr Windsor. In that case, a majority of the High Court held that the expression "[a]n action for damages for … breach of duty" in s 5(1A) of the Limitation Act 1958 (Vic) covered an action for intentional trespass to the person. While the majority were influenced to some extent by the particular statutory context, their Honours held that as a matter of principle the words "breach of duty" are capable of covering intentional trespass: at 453 [17], per Gleeson CJ, Callinan, Heydon and Crennan JJ. 78 In any event, the definition of "breach of duty" in s 11(1) of the Limitation Act includes, when the expression is used in relation to a cause of action for damages for personal injury, trespass to the person. False imprisonment is plainly one category of trespass to the person: WVH Rogers, Winfield and Jolowicz on Tort (17th ed, 2006), at 82; JG Fleming, The Law of Torts (9th ed, 1998), at 23. Accordingly, in my view, a cause of action for damages for false imprisonment, provided the claim is "for damages for personal injury", is within s 18A(1) of the Limitation Act. The limitation period applicable to such a cause of action is therefore the three year period prescribed by s 18A(2).

The Issue 79 The 5th ASC alleges that police officers, for whose actions the State is liable, assaulted the respondent on 15 December 1999. The assault, which is described in the pleading as a trespass to the person, is said to have occurred by the use of excessive force to effect the respondent's arrest. Paragraph 11 of the 5th ASC alleges that the respondent, by virtue of the trespass to the person, suffered "emotional upset, anxiety, distress and humiliation" beyond that which could result from the use of any reasonable degree of force by the police. 80 The respondent claims aggravated and exemplary damages in respect of the claims in both assault and false imprisonment. It is not clear whether the claim for aggravated damages is intended to be limited to harm identified in para 11 of the 5th ASC or covers other kind of harm or compensable loss. 81 Whether the claims for aggravated and exemplary damages for damages for assault are statute barred depends on whether the limitation period applicable to the cause of action founded on assault is three years or six years, bearing in mind that the proceedings were instituted one day short of six years after the respondent's arrest. The answer to this question is not necessarily the same in relation to the respondent's claims for aggravated damages and for exemplary damages. 82 Section 18A(2) of the Limitation Act provides that an action or a cause of action to which s 18A applies is not maintainable if brought after the expiration of three years from the date the cause of action accrued. Section 18A(1) states that s 18A applies to "a cause of action, founded on … breach of duty, for damages for personal injury". The issue is therefore whether the pleaded cause of action, based on the police officers' alleged assault of the respondent, is a cause of action, founded on breach of duty, for damages for personal injury. If it is, the cause of action was not brought within the three year limitation period and is therefore not maintainable by the respondent. 83 There is no dispute that the respondent's claim for damages by reason of the alleged assault is a cause of action founded on breach of duty for the purposes of s 18A(1) of the Limitation Act. This follows from the definition of "breach of duty" in relation to a cause of action for damages for personal injury in s 11(1). As has been seen, that definition extends to the breach of any duty and includes trespass to the person. 84 The critical question can therefore be narrowed down. It is whether the respondent's pleaded claim based on the alleged assault is a cause of action "for damages for personal injury". In answering this question it is necessary to bear in mind that the term "personal injury" is defined by s 11(1) of the Limitation Act to include "any impairment of the physical or mental condition of a person".

Legislative History 85 The Limitation Act 1969, as originally enacted, substantially implemented the recommendations of the New South Wales Law Reform Commission ("NSWLRC"), Limitation of Actions (LRC 3, 1967). Section 14 of the Limitation Act, which has remained in force without amendment, provides for a six year limitation period for a cause of action founded on tort. 86 In 1975, the NSWLRC proposed the introduction of a three year limitation period for actions based on tort, including actions for damages for personal injury: The Limitation of Actions: Special Protections (LRC 21, 1975), at [140]-[146]. The recommendation took account of a comparative survey, which showed that in certain jurisdictions both in Australia and elsewhere the limitation period for actions for damages for death or personal injury generally varied between two or three years: at [140]. The 1975 report included draft legislation which contains language similar to that now found in the definitions in s 11 and in s 18A. However, the NSWLRC's recommendations were not implemented. 87 The NSWLRC returned in 1986 to the length of limitation periods in relation to personal injury claims: Limitation of Actions for Personal Injury Claims (Community Law Reform Program, Ninth Report, 1986). The 1986 report pointed out that, over the years, the six year limitation period for personal injury claims had been reduced to three years in a number of jurisdictions, although it acknowledged that in Victoria a six year limitation period had been restored: at ([6.5]-[6.20]). The NSWLRC recommended (at [6.11]) the adoption of a three year limitation period for personal injury claims, with provision for discretionary extension of time: "There is much to be said for uniformity between States and Territories, but preservation of a six year limitation period in New South Wales would not produce uniformity. A shorter period is desirable, primarily to encourage the early determination of contested claims. The argument for a longer period is met by a provision for discretionary extension of time. The primary limitation period in cases of personal injury should therefore be three years from the date of accrual of the cause of action ." (Emphasis in original.) 88 The 1986 report attached draft amendments to the Limitation Act designed to implement the NSWLRC's recommendations. The draft legislation included a new s 18A which, in relevant respects, was identical to s 18A of the Limitation Act in its current form. The draft legislation also included definitions of "Breach of duty" and "Personal injury" which are now incorporated, save for immaterial differences, in s 11 of the Limitation Act. The 1986 report did not, however, explain the language used in the draft legislation. Nor did it identify any statutory precedent that the NSWLRC may have relied on in preparing the draft. 89 Section 18A and the accompanying definitions were introduced into the Limitation Act by the Limitation (Amendment) Act 1990. The Explanatory Memorandum accompanying the Bill (for relevant purposes) merely stated that its object was: "to encourage the early determination of personal injury claims by shortening the primary limitation period for personal injury actions from 6 to 3 years."

No recognition was made, either in the Explanatory Memorandum or the second reading speech in Parliament (NSW Parl Deb, 8 May 1990, Leg Ass, at 2554-2555), that the legislation implemented recommendations of the NSWLRC.

Aggravated and Exemplary Damages 90 In determining whether s 18A(2) of the Limitation Act bars the cause of action in assault pleaded by the respondent, it is necessary to say something of the distinction between aggravated and exemplary damages, both of which are claimed by the respondent. 91 In Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; 117 CLR 118, at 129-130, Taylor J pointed out that there had been a degree of confusion between aggravated and exemplary damages. The former, Taylor J said, are: "given by way of compensation for injury to the plaintiff, though frequently intangible, resulting from the circumstances and manner of the defendant's wrongdoing." (Emphasis added.)

By contrast, exemplary damages are awarded: "to 'punish and deter' the wrongdoer though, in many cases, the same set of circumstances might well justify either an award of exemplary or aggravated damages."

These passages were cited with approval by the High Court in New South Wales v Ibbett [2006] HCA 57; 229 CLR 638 (" Ibbett (HCA) ", at 646-647 [31], [33]; see also Myer Stores Ltd v Soo [1991] 2 VR 597, at 602, per Murphy J. 92 Aggravated damages, being compensatory in nature, are awarded for injury to the plaintiff's feelings caused by insult, humiliation and the like: Lamb v Cotogno [1987] HCA 47; 164 CLR 1, at 8, per curiam. Exemplary damages go beyond compensation and are designed to punish and to deter wrongdoers. Such awards also assuage any urge for revenge felt by victims and discourage self-help remedies (164 CLR, at 9). 93 Spigelman CJ in New South Wales v Ibbett [2005] NSWCA 445; 65 NSWLR 168 ("Ibbett (NSWCA)", at [83], in a passage approved by the High Court on appeal, explained the difference between aggravated and exemplary damages: "in the case of aggravated damages the assessment is made from the point of view of the plaintiff and in the case of exemplary damages the focus is on the conduct of the defendant."

(This passage is not reproduced in the report of Ibbett (NSWCA) : (2005) 65 NSWLR 168.) See also New South Wales v Corby [2010] NSWCA 27, at [44]-[46], per Basten JA (with whom Beazley and Tobias JJA agreed). 94 There is a close relationship between the various categories of damages that may be awarded for an intentional trespass to the person. For example, the same considerations may increase the hurt to the plaintiff and make it desirable for a court to mark its disapprobation of the conduct: Ibbett (HCA), at 648 [35]). Moreover, it is necessary to assess the heads of compensatory damages (including aggravated damages) before determining whether a further award should be made by way of exemplary damages: Ibbett (HCA), at 647 [34], citing Ibbett (NSWCA), at [83]. 95 In New South Wales v Riley [2003] NSWCA 208; 57 NSWLR 496, Hodgson JA (with whom Sheller JA and Nicholas J agreed) pointed out (at [129]) that in certain circumstances "ordinary compensatory damages" can be awarded for injury to feelings, falling short of a recognised psychiatric injury. Such damages can be awarded in actions for assault. His Honour also pointed out that, if, in addition to ordinary damages for injury to feelings, aggravated damages are to be awarded, it is important to avoid double counting. 96 Hodgson JA put forward (at 528 [131], 529 [133]) a "principled explanation" as to how double counting can be avoided: "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. … 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."

See also Myer Stores Ltd v Soo [1991] 2 VR 597, at 603, per Murphy J 97 These authorities demonstrate that the various categories of damages that may be awarded for trespass to the person, including assault and false imprisonment, are not self-contained. There is a close relationship between an award of ordinary compensatory damages for injury to the plaintiff's feelings and an award of aggravated damages. It is necessary to assess compensatory damages, including aggravated damages, before determining whether exemplary damages should be awarded and, if so, the quantum of any such award. Construction of s 18A of the Limitation Act 98 The limitation period of three years prescribed by s 18A(2) of the Limitation Act applies, relevantly, to a cause of action founded on breach of duty "for damages for personal injury". It is of course necessary to read s 18A(2) in the statutory context and to construe s 18A as a whole. Nonetheless, the expression "cause of action … for damages for personal injury" is critical to determining whether the claim for damages in the 5th ASC is caught by s 18A(2) and is therefore subject to a three year limitation period. 99 Mr Windsor on behalf of the State argued that the respondent's claim for aggravated damages was "for" damages for personal injury, in the sense that it was "an account of" damages for personal injury. Mr Windsor cited State Government Insurance Office (Queensland) v Crittenden [1966] HCA 56; 117 CLR 412, where the High Court gave a broad construction to the expression "for accidental bodily injury" when used in the Motor Vehicles Insurance Acts 1936-1961 (Qld). The Court held that the word "for" should be understood as equivalent to "in respect of". Accordingly, a policy issued under the Queensland legislation provided coverage for an insured motorist's liability to a husband for the loss of his wife's consortium, where she had been injured through the motorist's negligence. However, the decision in Crittenden to depart from the "narrow literal" meaning of the statutory language depended on the broader legislative context: see 117 CLR, at 415-416, per Taylor J. 100 In my view, s 18A(1) of the Limitation Act uses the word "for" in a narrower sense than the legislation construed in Crittenden. As Basten JA observed in NSW v Corby, there is ordinarily a difference between referring to damages "for injury to a person" and to damages "in respect of" or that "relate to" an injury: at [34]. As his Honour said, the latter two expressions ordinarily denote a greater degree of flexibility in the relationship than does the word "for". 101 In the present context, I think that means that s 18A(2) of the Limitation Act applies only to a cause of action in which the plaintiff seeks damages for personal injury that he or she has sustained. Section 18A(2) is not attracted if the damages sought by the plaintiff are merely related to or connected with personal injury suffered by the plaintiff or some other person. 102 This leaves open the question of whether the relief claimed by the respondent in the 5th ASC, in particular his claim for aggravated damages, constitutes a claim "for damages for personal injury" within s 18A(1) of the Limitation Act. In answering this question it is important to appreciate that the insertion of s 18A into the Limitation Act in 1990 was accompanied by the insertion of definitions of "Breach of duty" and "Personal injury". From the outset, s 18A of the Limitation Act has applied not only to actions founded on negligence or breach of statutory duty, but to actions based on breach of any duty, including trespass to the person. Accordingly, s 18A has always applied to actions for assault or false imprisonment, subject to the requirement that any action be "for damages for personal injury". It follows that s 18A applies, subject to the satisfaction of that requirement, to causes of action based upon the intentional infliction of harm upon the plaintiff. 103 An intentional act, such as a deliberate assault, may cause physical injury to the victim. But such an act will frequently cause mental harm, such as humiliation, indignity, insult, anxiety or distress. That is so whether or not the victim of the assault also suffers lasting physical injury and whether or not the victim's mental harm amounts to a recognised psychiatric illness or disability. As the authorities recognise, aggravated damages can be awarded for mental harm not constituting any form of a recognised psychiatric illness or disability. 104 It would seem to be somewhat odd if the three year limitation period imposed by s 18A(2) applies to an action for assault where the plaintiff seeks damages for physical injuries or a psychiatric condition caused by the assault, but does not apply to a claim for aggravated damages for mental harm or suffering not amounting to a recognised psychiatric injury. The oddity is that a claim for damages for physical injuries or a psychiatric condition would have to be brought within three years, but a claim for aggravated damages could be brought within six years. Aggravated damages are compensatory and may be claimed for consequences that are more transient and perhaps less serious than major physical or psychiatric injuries. 105 Nonetheless, the apparent oddity of a result does not demonstrate that the statutory language, on its proper construction, avoids the result. The question remains whether an action based on assault in which the plaintiff claims aggravated damages for injury to feelings, is properly characterised as an action "for damages for personal injury". While the authorities do not speak with one voice, I think that the answer to the question is "yes". 106 One issue argued in Ibbett (NSWCA) was whether an action founded on trespass to land and assault was an "action for the award of personal injury damages" within s 21 of the Civil Liability Act 2002 ("CL Act"). The plaintiff in that case had sought both aggravated and exemplary damages against the State by reason of the conduct of police officers for which the State was vicariously liable. The State argued, among other things, that such an award of damages was precluded by s 21 of the CL Act, which provides that: "In an action for the award of personal injury damages where the action or omission that caused the injury or death was negligence, a court cannot award exemplary or punitive damages or damages in the nature of aggravated damages." 107 The State's argument failed because the plaintiff's action was not one founded on a negligent act or omission. Whilst Spigelman CJ did not find it necessary to decide whether the proceedings brought by the plaintiff could be regarded as "an action for the award of personal injury damages" within s 21 of the CL Act, his Honour commented on the issue (at 172 [21]): "The concept of 'personal injury' is reasonably well established in Australian legal practice. It is rarely, if ever, been used to refer to harm to reputation, deprivation of liberty, or to injured feelings such as outrage, humiliation, indignity and insult or to mental suffering, such as grief, anxiety and distress, not involving a recognised psychological condition … An award for the emotional harm involved in apprehension of personal violence would not generally be regarded as an award for 'personal injury damages'." 108 Spigelman CJ did not think that the expanded definition of "injury" in s 11 of the CL Act, which (like the definition of "Personal injury" in s 11 of the Limitation Act) includes "impairment of a person's … mental condition", carried matters any further. His Honour inclined to the view (at 172 [22]) that: "The emotional reaction, often called 'injured feelings', arising from the apprehension of physical violence and the accompanying sense of outrage or indignation is not an 'impairment of a mental condition'." 109 In assessing the significance of Spigelman CJ's observations for present purposes, it is pertinent to observe that s 21 of the CL Act is confined to actions founded on negligence. The law of negligence distinguishes, rightly or wrongly, between mere emotional distress (non-compensable) and psychiatric injury (compensable): see Tame v New South Wales [2002] HCA 35; 211 CLR 317, at 414-418 [285]-[297], per Hayne J. It is perhaps readily understandable that a reference to "personal injury damages" in s 21 should be construed in the manner favoured by Spigelman CJ, although his Honour clearly did direct attention to whether that expression applied to a claim based on an apprehension of personal violence. 110 It is less clear, in my respectful opinion, that the reference in s 18A of the Limitation Act to an action founded on breach of duty "for damages for personal injury" should be construed in the way suggested by Spigelman CJ. In the context of an action based on intentional trespass to the person, the expression "damages for personal injury" seems to me to be not inapt to describe damages for feelings of humiliation, indignity, distress and anxiety caused, for example, by a deliberate assault. Such an award, whether by way of ordinary compensatory damages or aggravated damages, is designed to compensate for mental suffering that is personal to the plaintiff and is clearly injurious to him or her. I see no compelling reason to give s 18A(1) of the Limitation Act a meaning narrower than the words readily bear, having regard to the fact that s 18A was intended to apply to actions based on trespass to the person. In particular, I see no compelling reason to introduce into s 18A concepts developed in relation to the law of negligence, but which do not apply to intentional torts. 111 Be that as it may, there is support in New South Wales for the proposition that the expanded definition of "Personal injury" in s 11 of the Limitation Act extends to injury to feelings of the kind frequently compensated by an award of damages in actions for assaults or other trespass to the person. In Ibbett (NSWCA), Ipp JA expressed the view (at 175 [124]) that anxiety and distress would be an "impairment" of a person's mental condition in accordance with the ordinary meaning of that word as used in s 11. In the same case, Basten JA expressed doubt (at 182 [212]) as: "to whether limiting the concept of 'impairment of mental condition' to an impairment involving a recognised psychiatric illness accords with the general understanding of the term 'impairment' or with its use in the statute. In ordinary usage, the term 'impairment' connotes a diminution of an antecedent state of affairs or a departure from an objective standard. In discrimination law the term is used to describe departure from a standard; in tort law, it is used to describe departure from a state of affairs caused by the act of the tortfeasor. The ordinary meaning of the term may not reflect a distinction drawn by the law between emotional distress and a psychiatric condition." 112 The observations of Ipp and Basten JJA in Ibbett (NSWCA) were obiter. However, the definition of "injury" in s 11 of the CL Act (which, as I have noted, is substantially the same as the definition of "Personal injury" in s 11 of the Limitation Act) played a more central role in the reasoning of Basten JA (with whom Beazley and Tobias JJA agreed) in NSW v Corby. 113 The issue in NSW v Corby was whether the plaintiff was entitled to claim aggravated and exemplary damages for an assault which occurred while he was held in police custody. The answer turned in part on the proper construction of s 26C of the CL Act, which provides that no damages are to be awarded to a person assaulted in custody "unless the injury results in … a degree of permanent impairment [of] at least 15%". The plaintiff did not satisfy the 15% threshold, but argued that his claims for aggravated and exemplary damages were not precluded by s 26C since he was claiming damages for something other than an "injury". In particular, the plaintiff argued that feelings of anger, humiliation and fear, in respect of which he was claiming aggravated damages, did not constitute an "injury" for the purposes of s 26C. 114 Basten JA noted (at [24]) that the statutory definition of "injury" in the CL Act includes "impairment". The latter was defined in the Oxford English Dictionary to include "deterioration" or "injurious lessening or weakening", indicating that it encompassed both serious and less serious consequences. The question was then whether the concept of impairment was limited to that which gives rise to compensable (as distinct from aggravated) damages under the general law, where the primary claim is for psychological harm. 115 Basten JA rejected as untenable (at [47]) the plaintiff's argument that "injury" did not include matters such as humiliation and injuries to feelings: "The general damages available for compensation for tortious conduct include damages for pain and suffering. There is no basis for limiting pain and suffering to physical suffering. Accordingly, there is no ready basis for distinguishing between an assessment of general damages and aggravated damages. As explained in Ibbett, aggravated damages are a form of general damages." 116 In the 5th ASC, the respondent alleges that he suffered emotional upset, anxiety, distress and humiliation by virtue of the alleged assault (and the unlawful imprisonment). His claim, in my opinion, is for damages for impairment of his mental condition. Each of the consequences he alleges flowed from the assault can readily be described as an impairment of the respondent's mental condition. His claim is therefore for damages for personal injury. 117 This conclusion not only sits comfortably with the statutory language. It accommodates the structure of the legislation which envisages that s 18A of the Limitation Act will apply to actions based in trespass to the person, which often include a claim for damages for harm of the kind identified in para 11 of the 5th ASC. The conclusion also avoids the odd results that , as I have explained, would flow from a narrower construction of s 18A(1) of the Limitation Act. 118 It follows that the 5th ASC, insofar as it seeks aggravated damages for assault is a cause of action founded on breach of duty for damages for personal injury. Such a cause of action is barred by s 18A(2) of the Limitation Act as it was not brought within three years of the accrual of the cause of action. Leave to file the 5th ASC to plead this cause of action would be of no utility as the three year limitation period had expired long before the respondent commenced the proceedings in the District Court. 119 For reasons I have already given, the respondent is not entitled to leave to file the 5th ASC insofar as it pleads a cause of action in false imprisonment. However, the conclusion I have reached in relation to the respondent's claim for aggravated damages for assault applies equally to his claim for aggravated damages for false imprisonment.

Exemplary Damages 120 It may be that an action in assault seeking only exemplary damages (assuming that a claim can be brought for exemplary damages independently of any claim for compensatory damages) is not a cause of action in which the plaintiff seeks damages for personal injury for the purposes of s 18A of the Limitation Act. The reason is that exemplary damages, as has been seen, do not compensate the plaintiff for any injury he or she may have sustained. Rather, they are awarded to punish and deter the wrongdoer. 121 It is possible in New South Wales, in certain circumstances, for a plaintiff in an action for trespass to the person to claim only exemplary damages. It was held in NSW v Corby that the effect of s 26C of the CL Act was to preclude a claim by a plaintiff, who alleged that he had been assaulted by police officers while in custody, for compensatory and aggravated damages. However, it was also held that the language of s 26C was not apt to preclude a claim by the plaintiff for exemplary damages. 122 The defendant in NSW v Corby argued, relying on observations of Brennan J in XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia)Pty Ltd [1985] HCA 12; 155 CLR 448, at 468-469, that the plaintiff could not limit his claim to exemplary damages, since such damages are "parasitic" on an award of compensatory damages. Basten JA rejected (at [55]) the argument: "There may be a sense in which that is true under the general law [that is, that exemplary damages are 'parasitic'], though whether as a practical effect, rather than a legal requirement, might require consideration. The objection is, in any event, one which cannot affect a statutory reform. Subject to constitutional constraints, the Parliament is entitled to vary, by way of limitation or expansion, the heads of damages available in respect of torts, just as it may vary the elements and existence of causes of action. If it has done so, so as to leave available only one head of damages, that result is effective." 123 The result in NSW v Corby came about as the consequence of statutory intervention. I do not think it necessary for present purposes to decide whether, under the general law, the plaintiff in an action founded on trespass to the person can limit his claim to exemplary damages, without seeking compensatory damages. However, I doubt whether Brennan J in XL Petroleum (NSW) v Caltex Oil when he described exemplary damages as "parasitic", intended to rule out a claim confined to exemplary damages. 124 In the present case, the outcome turns on the language of s 18A of the Limitation Act. The 5th ASC pleads a single cause of action in assault. The aggravated and exemplary damages claimed in the 5th ASC are the relief sought by the respondent in respect of that cause of action. He does not plead - nor is he entitled to plead - separate causes of action in respect of his claims for aggravated and exemplary damages. The plaintiff has but one cause of action for assault, although he could claim (subject to the Limitation Act) different heads of damages. 125 The existence of a single cause of action was illustrated by the common law rule, now overturned by statute, that only one sum could be awarded in a single proceeding for a joint tort, even where the culpability of the defendants was different and hence an award of exemplary damages against each of them would ordinarily be different: Broome v Cassell & Co [1972] 1 AC 1027, at 1063, per Hailsham LC; cf XL Petroleum v Caltex (holding that s 5(1) of the Law Reform (Miscellaneous Provisions) Act 1946 overturns the common law rule). The common law rule was based on the idea that there was a single cause of action arising from a joint tort: Greenlands Ltd v Wilmshurst and the London Association for Protection of Trade [1913] 3 KB 507, at 630, per Hamilton LJ. 126 In my opinion, the 5th ASC pleads a cause of action in assault in which the respondent seeks damages for personal injury. He claims aggravated damages which, for the reasons I have given, is a claim for damages for personal injury. He also claims exemplary damages. However, the respondent has only one cause of action and he claims damages for personal injury as the remedy for the assault. Moreover, no award of exemplary damages could be made unless the Court determines that the award of aggravated damages is insufficient to punish and deter the State or to serve the other purposes of exemplary damages: H Luntz, Assessment of Damages for Personal Injury and Death (4th ed, 2002), at [1.7.6]. 127 The inclusion of a claim for exemplary damages does not, in my view, mean that the respondent's cause of action is otherwise than "for damages for personal injury". That is the remedy he seeks and his pleading alleges the personal injury (in the relevant sense) that supports his claim. The addition of a head of damages not referable to personal injury sustained by the respondent does not justify concluding that the cause of action is outside the scope of s 18A of the Limitation Act. 128 It follows that the respondent is not entitled to file the 5th ASC in its present form even though a claim for exemplary damages alone, if such a claim is permissible, may not be an action for damages for personal injury within s 18A(1) of the Limitation Act.

A Repleading 129 The respondent did not suggest that he wished to file yet another version of the pleading limited to a claim for exemplary damages. In any event, no draft pleading has been proffered to the Court. 130 The appropriate course, in my view, is to grant the State's motion to strike out the respondent's existing pleading and to refuse him leave to file the 5th ASC. Any application to amend the pleadings yet again should be made to the District Court. However, it should not be assumed that even if an amended pleading was capable of overcoming the difficulties identified in the judgment, the Court would exercise its discretion in favour of the respondent. It might be thought that at least five unsuccessful attempts to plead a viable cause of action are enough.

CONCLUSION 131 Leave to appeal should be granted. The appeal should be allowed. Orders 1 and 2 made by Levy DCJ on 30 October 2009 should be set aside. In lieu of these orders, the following orders should be made:

The respondent's statement of claim filed on 26 April 2007 be struck out.

The respondent's amended motion filed on 9 September 2009 be dismissed. 132 In the light of the orders that I propose, there is no occasion to reconsider the costs orders made by the primary Judge. The respondent's application for leave to cross appeal must be dismissed, with costs. 133 The respondent must pay the State's costs of the application for leave to appeal and of the appeal. The respondent, if otherwise qualified, should have a certificate under the Suitors Fund Act 1951.

05/11/2010 - Amendment - Civil Procedure Act sub-section incorrectly stated in catchwords - Paragraph(s) Coversheet

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Suitors Fund Act 1951(NSW)

Limitation (Amendment) Act 1990(NSW)

(UK) Supreme Court Rules 1970(NSW)

Limitation Act 1958(Vic)

CITATION: State of New South Wales v Steven Charles Radford [2010] NSWCA 276 This decision has been amended. Please see the end of the judgment for a list of the amendments.

Brickfield Properties Ltd v Newton [1971] 1 WLR 862 Broome v Cassell & Co [1972] 1 AC 1027 Chatsworth Investments Ltd v Cussins (Contractors) Ltd [1969] 1 WLR 1 Darlington Building Society v O'Rourke James Scourfield and McCarthy [1998] EWCA 1664 Greenlands Ltd v Wilmshurst and the London Association for Protection of Trade [1913] 3 KB 507 Kruber v Grzesiak [1963] VR 621 Lamb v Cotogno [1987] HCA 47; 164 CLR 1 Letang v Cooper [1965] 1 QB 232 Mason v Mason [1997] 1 VR 325 McGee v Yeomans [1977] 1 NSWLR 273 Myer Stores Ltd v Soo [1991] 2 VR 597 New South Wales v Corby [2010] NSWCA 27 CASES CITED: New South Wales v Ibbett [2006] HCA 57; 229 CLR 638 New South Wales v Ibbett [2005] NSWCA 445; 65 NSWLR 168 New South Wales v Riley [2003] NSWCA 208; 57 NSWLR 496 O'Neill v Foster [2004] NSWSC 906; 61 NSWLR 499 Sagacious Procurement Ltd v Mayne Group Ltd [2005] NSWSC 1238 State Government Insurance Office (Queensland) v Crittenden [1966] HCA 56; 117 CLR 412 Stingel v Clark [2006] HCA 37; 226 CLR 442 Symes v Mahon [1922] 2 SASR 447 Tame v New South Wales [2002] HCA 35; 211 CLR 317 Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; 117 CLR 118 Watson v Marshall [1971] HCA 33; 124 CLR 621 Welsh Development Agency v Redpath Dorman Long Ltd [1994] 1 WLR 1409 Williams v Milotin [1957] HCA 83; 97 CLR 465 XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1985] HCA 12; 155 CLR 448

LOWER COURT MEDIUM NEUTRAL CITATION: Radford v State of New South Wales [2009] NSWDC 278

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