State of Victoria v Horvath and Ors [2002] VSCA 177

6. On Friday, 8 March 1996, between approximately 9 and 10 p.m., Corinna Horvath ("Horvath")[1], who was then aged 21, drove her Torana motor car, in which her 25 year-old partner, Craig Love ("Love")[2], was a passenger, into a service station at Hastings. A police car, which was occupied by Constables David Laurence Jenkin ("Jenkin") and Stephen Davison ("Davison")[3], came up behind them. It is convenient to mention briefly at this stage some of the relevant background concerning Horvath and Love. The learned trial judge found that, at the time in question, both had extensive prior involvement with the local police and that both had a number of prior convictions for various offences, including, in the case of Horvath, cannabis offences, assault and resisting the police, and in the case of Love, assault and wilful damage. Moreover, each had been intercepted by police for vehicle and driving offences. It also seems that, during their various altercations with the police, Horvath and Love demonstrated their disdain for them and challenged their powers. According to his Honour, both had a fairly clear understanding of their rights as against the police. Nevertheless, although Horvath was known to Jenkin and Davison (and to at least some of the police defendants to whom reference will be made later), apparently Love was not. Be that as it may, when Jenkin sought to speak with Horvath at the service station, she turned up the car radio to full volume so as to render his attempt almost useless. There were other forms of rudeness which she displayed towards Jenkin which need not be detailed here. It is sufficient to note that, in the end, Jenkin issued an unroadworthy certificate in respect of the Torana motor car which, according to his Honour, meant that while the car remained subject to that certificate, it could not be driven to the house which Horvath and Love were renting at 213 Coolart Road, Hastings ("the Horvath premises"), which was some five kilometres away. Nevertheless, shortly after the police left, Horvath drove her car home.

10. On the afternoon of the following day (9 March 1996), Horvath, Love and a number of their friends, including David and Colleen Kniese[4] and their respective children gathered at the Horvath premises for a barbecue. It is clear that by 9 p.m. or thereabouts most adults had consumed a substantial amount of alcohol and that Horvath had also smoked marijuana. Jenkin and Davison arrived at the Horvath premises at approximately 9.40 p.m. claiming that, a short time earlier, they had seen Horvath driving her Torana motor car. In so far as it is relevant, the learned trial judge found that Horvath probably had driven her vehicle at or about the time alleged by the policemen although, at the trial, she had denied having done so. Jenkin wished to inspect Horvath's vehicle for evidence that it had been recently driven, but Horvath would not permit him to remain and effectively ordered him and Davison to leave. Although Davison was prepared to go, Jenkin persisted with his attempts to inspect the car with the result that a scuffle or fight broke out involving, on the one hand, Horvath and Love (and later the Knieses) and, on the other, Jenkin and Davison. His Honour concluded that Horvath had revoked any licence that the policemen may have had to be on the Horvath premises and that she and Love used no more force than was necessary to terminate the resultant trespass. During the scuffle, Jenkin's shirt and Davison's tie were torn. Eventually, they left the Horvath premises and radioed for reinforcements with the result that, during the next 40 minutes or so, eight police officers in five motor vehicles gathered at the corner of Coolart and Hodgins Roads, which is a short distance from the Horvath premises. The police involved were Sergeant Ian Christensen[5] ("Christensen"), who was the officer-in-charge, Sergeant Smith, Jenkin, Davison and Constables Marc Stuart Saunders[6] ("Saunders"), Whatmough, Read-Smith and Paxton ("Paxton"). Jenkin and Davison told Christensen what they sought to do at the Horvath premises and the circumstances in which they were assaulted there by Horvath and an unknown male (Love). Davison said that he had been kicked during the incident and Jenkin claimed that he suffered a sore shin and a tender back from the attack. According to Christensen, the two policemen were visibly shaken by their experience and he noted that Jenkin's shirt was ripped and Davison's tie was missing. Other than seeing two scratches on Jenkin's chest, however, he saw no apparent injuries on the two policemen. But he did form the view that the two policemen intended to return to the Horvath premises and that Jenkin was particularly keen to do so.

14. It seems that there was general consensus amongst the gathered police that Horvath and the unknown male (Love) should be arrested for assaulting Jenkin and Davison, but one matter which concerned them was whether they had the authority to go onto the premises for that purpose if entry was denied to them by its occupants. They did not have a warrant that would authorise entry under such circumstances. Consequently, discussion took place, principally between Christensen and Sergeant Smith, as to whether they could invoke s.459A of the Crimes Act 1958 for the purpose of effecting a lawful entry at the Horvath premises notwithstanding that they might not have the occupiers' permission to do so. So far as is relevant, the section permits a police officer to enter and search premises for the purpose of arresting a person on the premises where the officer believes, on reasonable grounds, that the person had committed a "serious indictable offence" and is on the premises. In the end, Christensen was satisfied that a serious indictable offence had been committed for the purposes of the section by Horvath and the unknown male in respect of Jenkin and Davison and that, therefore, the police had authority to enter the Horvath premises and arrest the two offenders. Christensen then told the other policemen of his conclusion as to the operation of s.459A and it was agreed that they would all go to the Horvath premises and arrest Horvath and, after he was identified, the unknown male. If necessary they would use force to gain entry.

18. Consequently, at approximately 10.30 p.m. the eight policemen in their five vehicles proceeded to the Horvath premises. It was claimed by the police at the trial that, when they arrived there, Horvath was outside her house and when they told her that she was under arrest, she fled inside. The trial judge, however, rejected that evidence, concluding it was fabricated because the police were not confident that the earlier incident involving Jenkin and Davison would be accepted as constituting a serious indictable offence for the purposes of s.459A of the Crimes Act .

21. Be that as it may, Christensen, Jenkin and Davison went to the front door of the premises, Saunders was placed at the corner of the house and Smith and Paxton went to the rear of it. It was intended, in broad terms, that Jenkin and Davison would only identify Love and that he would be arrested by Christensen. Christensen yelled for the inmates of the house to open the front door and told them that he intended to make an arrest. The occupants refused, stating that the police were not entitled to enter without a warrant to which Christensen responded that they did not need one to effect the proposed arrest**.** According to the learned trial judge, this exchange was conducted by Christensen in a loud and aggressive voice and lasted for only approximately 20 seconds. Jenkin then took it upon himself to kick the front door open "with great and sudden force" without first having received any instructions or authority from Christensen to do so. He did this notwithstanding that it would have been apparent to him that at least some of the occupants may have been milling around the other side of the door. His Honour found that, as the door was thus forcefully broken open, it struck David Kniese on the face, causing injury and constituted an assault ("the door assault").

24. Upon entering the house, Jenkin pursued David Kniese, brought him to the floor and, in the course of so doing, struck him on the right side of the head and hit him at least once with a baton across his lower back region. When Davison caught up with Jenkin and reminded him that David Kniese was not one of the people who was to be arrested, Jenkin moved away from Kniese who, together with Davison, then went to the rear of the house to see his two sons who were sleeping there.

27. Jenkin then proceeded to the loungeroom where he assaulted Horvath. The learned judge found that he pulled her to the floor and began "brutally and unnecessarily" to punch her in the face thereby fracturing her nose and rendering her senseless. In the result, Horvath had no recollection of Jenkin's assault on her. With the assistance of Saunders, Jenkin then rolled Horvath over and, despite her bleeding nose, handcuffed her and then dragged her out to the van. His Honour rejected Jenkin's claim that he tackled Horvath and punched her because she threatened to assault him. As a result of Jenkin's conduct towards her, Horvath suffered a fractured nose and other facial injuries, including bruising and a chipped tooth. She also had some bruising, scratches and abrasions to other parts of her body. She attended Frankston Hospital on 9 or 10 March 1996 and after a week was re-admitted for five days in relation to her nose injury. After some months she recovered from her physical injuries and was left with some nose scars and possibly aggravation of hay fever. Besides suffering physical injuries, she also suffered from anxiety and depression in respect of which she received treatment.

30. When the police broke into the house, Colleen Kniese was in the loungeroom which was located across the hall from the front door. Paxton confronted her, pushed her to the floor and held her there, on her knees, with her torso arched towards the floor and her hands held behind her back. According to the trial judge, it was likely that Paxton had his knee in her back. His Honour rejected his claim that Colleen Kniese had approached him in an aggressive manner and that his action was no more than a response to that conduct.

33. Love claimed that he was assaulted by the police during this raid on three separate occasions, namely, first by Christensen shortly after he entered the premises in the curtained bedroom off the loungeroom; later, after he had been apprehended and was lying on the ground beside the divisional van in the driveway and thirdly, at the Hastings police station to which he was taken later that evening. The learned judge accepted that, on the balance of probabilities, the first assault occurred but he declined to hold that the subsequent two alleged assaults took place; or, at least, in the circumstances described by Love. The judge, however, accepted Love's version of events surrounding and constituting the first assault. It would seem that while Jenkin was assaulting Horvath, Christensen walked across the loungeroom into the bedroom alcove, grabbed Love by the hair and pulled him to the ground. He then struck Love on his back a couple of times and again on the head and then handcuffed him and arrested him.

37. Horvath and Love were then taken to the Hastings police station where further altercations took place between them and the police, but it is not necessary to detail those events. Suffice it to say that on that evening each of Jenkin and Davison laid charges against Horvath and Love respectively to which reference will be made later. All such charges, however, were dismissed in November 1996 by the magistrate sitting at the Frankston Magistrates' Court.

42. By proceedings filed by each of Horvath and Love on 6 June 1997 and by each of David Kniese and Colleen Kniese on 5 August 1998 against Christensen, Davison, Jenkin, Saunders and the State of Victoria, the plaintiffs claimed damages, including aggravated and exemplary damages, for negligence against Christensen in respect of the planning, supervision and execution of the raid and, against all the police defendants jointly[7], for assault (and, in the case of Horvath and Love, also for trespass, false imprisonment against all police defendants and malicious prosecution against Jenkin and Davison respectively). All plaintiffs sought damages against the State of Victoria on the basis, inter alia, that the respective liabilities of the police defendants had been transferred to the State pursuant to s.123 of the Act. The police defendants denied all claims made against them by the plaintiffs and alleged that the raid, including the forced entry and subsequent police action inside the house, was lawful and justified in the circumstances. They also filed counterclaims, but they were not pursued. The State of Victoria denied any liability to the plaintiffs and relevantly denied the applicability of s.123 of the Act to the circumstances of the case and in any event, to any award of exemplary damages that might be made against the police defendants.

46. The trial arising out of the four proceedings occupied some 40 sitting days in the course of which his Honour heard a substantial amount of evidence from a large number of witnesses, including the plaintiffs and the four police defendants. Essentially, his Honour regarded the police evidence as to the planning, supervision and execution of the raid as lacking credit. The trial judge highlighted in his reasons for judgment many inconsistencies in the evidence of each of the police defendants in relation to many of the events in question and considered that they told lies on matters of major significance. More particularly, his Honour concluded that Christensen "clearly lied and prevaricated about his instructions (at the briefing of the raid) concerning who was to do the arresting" and that he also equivocated regarding the manner of the forced entry. But it should be said that the learned trial judge also noted that the plaintiffs' evidence was not free from inconsistencies and criticism.

50. His Honour found that Christensen alone owed the plaintiffs a duty to take reasonable care for their safety in the planning, supervision and execution of the raid and that he breached that duty and that, in the circumstances, was "manifestly" negligent in a number of ways concerning the raid. It is not necessary to list here all of his Honour's findings as to Christensen's negligence, but it is appropriate to refer to some of them. Before dealing with them, it is convenient to mention that his Honour rejected Christensen's claim that there were reasonable grounds for holding a belief that a serious indictable offence had been committed against Jenkin and Davison during their earlier visit to the Horvath premises and found that the entry by the police on to the Horvath premises was unlawful. The important consequence of this finding was that everything done by them inside the house was also unlawful and, therefore, their actions constituted trespass, assault and false imprisonment. His Honour found that, not only had Christensen failed to obtain full information from Jenkin and Davison concerning the events which occurred at the Horvath premises earlier that evening and to properly assess the information that he did obtain from them, but also, he made a serious error of judgment in allowing Jenkin to participate in the raid in a major way. His Honour observed that Jenkin was a relatively junior member at the time and had no experience in forced entry raids and was, as Christensen said, visibly shaken and upset at what had occurred at the Horvath premises. According to the judge, Christensen failed to consider what his Honour regarded as the high probability that Jenkin must have been very annoyed and hostile towards Horvath having regard to her driving of her Torana motor car contrary to his direction and the law and to her abusive attitude to him. The judge also considered that Christensen failed to give those under his command or supervision, and in particular to "the excitable Jenkin", clear instructions as to what were to be their respective roles in the raid. Further, it was his Honour's view that Christensen's aggressive actions at the door inflamed the situation and did not allow for a reasonable chance of avoiding the confrontation with the occupants of the house. Moreover, once Christensen entered the house, he did nothing to supervise the situation or otherwise guide the others, but immediately chased Love into the curtained-off bedroom and assaulted him as has been described. In short, the judge considered that Christensen had abrogated his responsibility for supervising the raid and acted with contumelious disregard for the plaintiffs' rights.

53. His Honour was, as is apparent from what has been said so far, very critical of the conduct of the police, and of Christensen in particular, in relation to the plaintiffs. He recognised, rightly, we think, that the violation of a person's house and privacy by forced entry is a significant infringement of rights which, other than in very unusual circumstances, constitutes a serious breach of the law. If such an act is carried out by the police, his Honour considered, it should be done only where the seriousness of the situation demands it and only after the most careful and reasoned consideration of all the circumstances. On no view, said the judge, could the circumstances which the police claimed justified their forceful entry into the house be described as dangerous or as one calling for emergency action, as might be the case if the house contained a murderer or kidnapper or drugged, or armed, offenders. As his Honour concluded, "This ... was a fairly run of the mill traffic matter with (at worst) a superimposed relatively insignificant assault ...". His Honour went on to express his concern that the planning and implementation of the raid had an unnecessary sense of urgency about it and was, in reality, predetermined before the rendezvous took place. As his Honour postulated, those at the gathering would have regarded some form of retaliatory action as an appropriate means of showing loyalty to "the boys" so that the participants would have sensed a degree of anticlimax if the raid had been called off. In an overview of the raid, his Honour said this:

"Overall it was a disgraceful and outrageous display of police force in a private house, and I consider Christensen did indeed show a contumelious disregard for the rights of the plaintiffs in planning and executing the raid as he did and I find that Jenkin in his conduct showed a most high handed approach accompanied by excessive and unnecessary violence wrought out of unmeritorious motives of ill will and desire to get even. ..."

On the material before us, we entirely agree with his Honour's description and criticism of the police conduct.

58. Thus, the trial judge found that the plaintiffs' claims in negligence against Christensen had been made out as were their respective cases in assault, unlawful arrest, false imprisonment and malicious prosecution.

62. Before examining his Honour's awards of damages, it is convenient to deal with two related matters. One is the ambit of the concession that was made by counsel for the State in relation to the impugned police conduct which was of relevance for the purpose of determining if the requirements of s.123 of the Act had been made out. The other is his Honour's construction of s.123. It is appropriate to consider first the concession said to have been made by the State. In order to give context to this issue, it is desirable to mention briefly the relevant terms of s.123 of the Act. The provision was inserted into the 1958 principal Act by the 1999 amending Act and came into force on 2 April 2000[8]. This section operated to provide immunity for liability established after 2 April 2000 in respect of events which occurred before that date. Sub-section (1) relevantly provides that a member of the police is not personally liable for anything necessarily or reasonably done or omitted to be done in good faith in the course of his or her duty. The next sub-section operates to transfer any liability that, but for the operation of sub-s.(1), would attach to a member of the police, to the State. Returning to the concession that was made during the closing address of counsel for the State in the course of the following exchange with the Bench.

"[COUNSEL]: ... and it is a matter of fact and a matter of assessment by Your Honour as to whether or not the police officers in question exercised good faith in all the circumstances of this case. HIS HONOUR: Just for the record, this is probably the appropriate time, what is it that precisely you are admitting or not admitting or not taking a point about in relation to certain acts or omissions of certain of the defendants? I just want it recorded officially. I can write it down or you can hand it up. [COUNSEL]: It's simply this: In respect of each of the intentional torts allegations the State's position is that for those torts to be established they must necessarily have been done in bad faith or rather not in good faith and the State concedes that the allegations of negligence against Christensen, if established, were done in good faith and the exercise of provisional [sic] power under section 459A, each of the five police officers that entered the house, that is their conduct in exercising that power was done in good faith. HIS HONOUR: The exercise of the original power in each of the five police officers who entered the house. [COUNSEL]: That's the first to fourth defendants and Paxton. HIS HONOUR: The exercise of that power and the what - what did you say after that? [COUNSEL]: And the determination of whether they had reasonable grounds to enter under section 459A was done in good faith. (short adjournment) [COUNSEL]: Going back to my earlier submission that whilst the State of Victoria concedes good faith in respect of trespass it doesn't concede good faith in respect of the intentional torts ..."

"... any allegation of assault, if proved, can never be done in good faith ... and that is the proper approach to ... these intentional torts, particularly the assaults."

68. Understandably, we think, his Honour regarded the concession as an important one and one which related to "the planning and execution of the raid and the lawfulness thereof and any negligence that might be associated therewith ... and the issue of the State's liability pursuant to s.123 [of the] Act". The learned judge considered that the State had conceded:

" - that any acts or omissions of Christensen in relation to the raid which may be found to constitute negligence on his part - that any determination by members that power to enter the premises existed per s.459A and the subsequent entry by members pursuant thereto was/were done in good faith in the course of duty as a member of the police force. Thus, if and in the event of a finding that s.459A was not satisfied and that the raid was not lawful, the State does not allege (in relation to the decision to enter and the actual act of entry into the premises) any lack of good faith on the part of those who took part in the raid. Similarly, if and in the event of a finding of negligence against Christensen, the State does not allege that in so acting he was acting with a lack of good faith."

72. There was some debate before us as to the ambit of the concession that was made by the State. So far as is relevant, it has been suggested by some of the respondents to the State's appeal that the concession extended to the acceptance by the State that the police defendants acted in good faith not only in the course of planning the raid and in their entry upon the premises, but also to all acts carried out by them in the house pursuant to the pre-arranged plan, including the arrest and imprisonment of Horvath and Love. For reasons which will become apparent, it is not essential for the purpose of disposing of the appeal and cross-appeals to define exhaustively the extent of the concession made by the State. Nevertheless, it is necessary to determine the broad parameters of it. This essentially involves the interpretation of what counsel said in response to his Honour's query as to what was being conceded. In our view, his Honour's description of what was conceded by the State is appropriately summarized by him in the passage from his reasons referred to earlier. To repeat, it seems to us that the State accepted that:

(a) Christensen's acts (or omissions) in relation to the raid, notwithstanding that they may be found to amount to negligence;

(b) the decision by the police defendants as to their power to enter the premises pursuant to s.459A of the Crimes Act and their entry -

were acts (or omissions) done in good faith and in the course of their duty for the purposes of s.123 of the Act.

Judge's Construction of s.123

78. The plaintiffs claimed below that the State was liable under that provision for all damages (including aggravated and exemplary damages) that, but for the operation of the section, might be awarded against the police defendants in respect of their intentional torts and also against Christensen for negligence. But as his Honour noted in his reasons, "in view of the concession" made by the State as to good faith, the only principal point of construction that was debated before him was whether Christensen's conduct in relation to the raid (and that of the other police defendants) was "necessarily or reasonably done" in the course of their duty within the meaning of the section. The State pressed on his Honour the principal argument that the phrase called for an objective assessment of whether the relevant act fell within its terms. Thus, it was said for the State, that if the court determined that the police officer carried out the act in question without reasonable care, then s.123(1) would not absolve the officer from personal liability for that conduct. His Honour rejected the State's construction of s.123 saying, in effect, that it would effectively render the operation of the section nugatory. More specifically, he rejected the State's argument that, in considering whether the act was "reasonably done ... in the course of ... duty", one looks to the act complained of and asks whether, objectively, it was necessarily or reasonably done in the course of duty. Rather, his Honour seems to have considered that whether the Act complained of was necessarily or reasonably done in the course of duty was to be determined by characterising the general conduct of the officer in the course of which the act in question was committed, and then determining whether, in all the circumstances of the case, conduct of that kind was necessarily or reasonably related to the officer's performance of his or her duty.

Judge's conclusion whether s.123 applies to police wrongful acts

83. Consistently with this interpretation of s.123, in the case of Christensen, his Honour characterised his relevant conduct as taking part in the raid. He said that he had no doubt that Christensen's action in the conduct of the raid was of a kind that was either necessarily or reasonably done in the course of his duty. Further, the judge took account of the State's concession that Christensen's conduct in planning the raid was done in "good faith"[9]. His Honour thus concluded that s.123(1) operated to relieve him of any liability for his negligent acts and/or omissions. The judge further held that, in the circumstances, such liability was, by virtue of s.123(2), transferred to the State.

86. Adopting a like approach in relation to the plaintiffs' claims for damages arising from intentional torts, his Honour considered that the acts of the police defendants in the house (other than those of Jenkin in relation to Horvath and David Kniese) were of a kind that were "necessarily or reasonably done in the course of duty" and that, therefore, this particular requirement of s.123(1) was satisfied. But his Honour was not satisfied that the requirement of good faith was made out in respect of the intentional torts (save for trespass, false imprisonment and the door assault) and thus the relevant police member was not relieved from his liability by the section. In the circumstances, it is convenient to consider each intentional tort separately and in relation to each, to see what were his Honour's findings on the issue of good faith, and as to the operation of s.123.

90. Having found, as we have said, that the police defendants acted necessarily or reasonably in the course of their duty while they were in the house, the judge concluded that, having regard to the State's concession that they entered the Horvath premises in good faith in the sense that they believed that they had power to do so under s.459A of the Crimes Act, their acts, in so far as they constituted trespass to the land (as claimed by Horvath and Love), fell within s.123(1). It followed, said his Honour, that they were absolved from personal liability for such conduct and that the liability attached, instead, to the State.

94. His Honour considered that, because the State conceded that the police entered the Horvath premises in good faith for the purposes of effecting the arrest of Horvath and Love, the acts which constituted false imprisonment of the two plaintiffs were done in good faith and that, in the circumstances, s.123 operated to transfer the liability for those torts from the police defendants to the State.

98. On the other hand, his Honour found, correctly we think, that the State's concessions did not extend to admitting that the police officers acted in good faith when assaulting the various plaintiffs save for the door assault on David Kniese. The judge found, for example, that the excessive force used by Jenkin in his assault on Horvath and David Kniese was of such a nature that it fell outside the agreement reached at the rendezvous and was not an act that was done in "good faith" for the purposes of s.123. Thus, his Honour held that Jenkin remained solely and personally liable for these assaults, and that such liability could not be transferred to the State upon the proper interpretation of s.123.

101. As to the assaults on Colleen Kniese and Love by Paxton and Christensen respectively, his Honour found that, although excessive force was used by the perpetrators, the excess was in a different category to that which was applied by Jenkin in relation to Horvath and David Kniese. The judge considered that it was not excessive enough to go beyond what was agreed upon at the rendezvous and, therefore, the principles of joint liability would operate in relation to the assaults on Love and Colleen Kniese, thereby making all the police defendants liable for those wrongs. Nevertheless, his Honour concluded (after some hesitation) that, "in the cause of consistency", it was appropriate to regard the assaults as going "beyond the `in good faith' mark", with the result that the liability in respect them would not be transferred to the State under s.123(2).

105. For completeness, we mention that his Honour appeared to have no doubt that the prosecutions brought by Jenkin and Davison against Horvath and Love respectively were not brought in good faith (and clearly there was no concession by the State that such prosecutions were brought in good faith). The judge concluded that each of the two policemen was solely responsible for the respective liability for damages arising from the successful claims brought by Horvath and Love for malicious prosecutions. It was not suggested below, or before us, by their counsel that their liability should be transferred to the State under s.123(2). But even if that had been argued, we consider that his Honour was correct in his finding that the acts in question were not done in good faith which means that s.123 would have no operation in relation to any liability arising from these wrongs.

109. To summarise, his Honour found that the requirements of s.123 were satisfied in respect of:

- Christensen's liability to all plaintiffs for negligence

- the liability of all the police defendants to Horvath and Love for trespass and false imprisonment

- of Jenkin and Davison to Horvath and Love respectively for malicious prosecution

- of Jenkin for his assaults on Horvath and David Kniese

- of the police defendants in respect of the assaults by Christensen and Paxton on Love and Colleen Kniese respectively.

120. We now turn to consider the damages that his Honour awarded to the plaintiffs and his reasons for making such awards. Although it will be necessary to look with some particularity at his Honour's assessment of damages, it is convenient to set out first a summary of them. We do so by way of reproducing below essentially the Table which was helpfully prepared by the State and which was made available to us and to the other parties in the course of the hearing of the appeals. All parties agreed that it accurately reflects the damages which his Honour awarded to various plaintiffs and in respect of their several causes of action.

Trespass, False Imprisonment (all defendants, transferred to State)

127. There was no challenge by the police defendants to his Honour's findings in respect of intentional torts or of malicious prosecution by Jenkin against Horvath, or to the judge's assessment and quantification of the damages relating to the intentional torts. They also did not challenge the judge's assessment of damages against them, including his assessment of exemplary damages. But the State attacked his Honour's finding of negligence against Christensen and his assessment of damages in respect of it, particularly exemplary damages, and the judge's decision that all of the damages awarded against Christensen were transferred to the State under s.123. The State also challenged the correctness of the judge's decision that the damages awarded to Horvath and Love for trespass and false imprisonment and to David Kniese for the door assault became the responsibility of the State pursuant to the above provision.

130. Before considering the case put by the State, it is convenient to analyse the damages awarded to the various plaintiffs first by reference to the damages which the judge awarded to Horvath. The methodology and principles which were adopted by him in assessing those damages were applied to the assessment of the damages awarded to the other plaintiffs.

134. Instead of assessing the damages that Horvath might have suffered as a consequence of Christensen's negligence, his Honour effectively assessed them by reference to her entitlement to damages for the intentional torts, so that the same amount was awarded to Horvath, albeit in the alternative, in respect of Christensen's negligence as it was for the intentional torts. The judge said that he did this because the occurrence of the intentional torts was a reasonably foreseeable consequence of Christensen's negligence. On that basis, and as is evident from the Table, Horvath was awarded in respect of Christensen's negligence $60,000 by way of ordinary compensatory damages, $3,525 by way of special damages and a further sum of $20,000 by way of aggravated damages. It is apparent that each amount duplicates the corresponding total amounts of damages awarded for the intentional torts and, as will be seen, the same methodology was used by the judge to award exemplary damages as against Christensen.

137. It also seems clear enough that his Honour intended that any exemplary damages awarded to Horvath against Christensen in respect of his negligence, ought to be transferred (along with the other heads of damages awarded against him for negligence) to the State under s.123 of the Act.[10] Thus, his Honour concluded that, "bearing all relevant factors in mind" $40,000 should be awarded to Horvath by way of exemplary damages as against Christensen. It will be noted that this amount also equates to the total of the exemplary damages which the judge assessed in Horvath's favour in respect of the intentional torts.

Horvath damages for intentional torts, malicious prosecutions

141. It will be recalled that the award of damages for intentional torts was made by way of alternative to the damages awarded in Horvath's favour against Christensen for negligence. Those damages were assessed by his Honour in the amounts shown in the Table and, as we have already mentioned, they equalled in amounts the damages awarded to Horvath against Christensen for negligence. Additionally, the judge awarded Horvath damages for malicious prosecution as against Jenkin only, as is set out in the Table.

145. As has already been mentioned, his Honour assessed damages in respect of the remaining plaintiffs on a basis that was essentially the same as that in accordance with which he awarded damages in favour of Horvath. The amounts of these assessments are sufficiently shown in the above Table.

148. For completeness, we mention again that, in accordance with his Honour's interpretation of s.123 of the Act, he concluded that all the damages that were awarded to each of the plaintiffs against Christensen in respect of his negligence were transferred to the State. (The judge made a like finding in respect of the alternative damages awarded in respect of trespass and false imprisonment in favour of Horvath, Love and in respect of the door assault on David Kniese.) Bearing in mind that the damages for the intentional torts were awarded in the alternative, the practical consequences of his Honour's finding that Christensen's liability in negligence was effectively transferred to the State, was that, putting aside the damages for malicious prosecution, the plaintiffs would be assured that the damages awarded in their favour would be paid. They were thus spared any difficulties that may have arisen in seeking to enforce judgments against the police defendants.

152. The State challenged his Honour's decision by way of four separate notices of appeal, to which they joined, respectively, the four plaintiffs together with each of the four police defendants as respondents. Each of those notices challenged, on a number of grounds, many of the judge's findings, and the orders which he made on many grounds. The Court, however, has not been concerned with a majority of those grounds because counsel for the State have confined their submissions to four "topics" which are common to the four appeals, and which derive from a small number of the grounds. The four topics are:

(a) That the judge erred in holding that a number of the actions or omissions of individual police defendants, which had resulted in findings of liability against them, were "reasonably done or omitted to be done" by them so that such liability of the individual members attached to the State under s.123(2) of the Act.

(b) That the judge erred in holding that the liability of an individual member of the police for an award of exemplary damages may be attached to the State of Victoria under s.123(2) of the Act.

(c) That the judge erred in awarding exemplary damages against the respondent Christensen in respect of his liability in negligence to each of the four plaintiffs.

(d) That the judge erred in awarding damages against Christensen in respect of the cause of action in negligence on the basis that Christensen's negligence caused the damage resulting from specific intentional torts committed by Christensen or to which he was a party or by other police defendants for which they were separately liable, such as Jenkin.

158. With the consent of the State of Victoria, the Court gave leave to the second respondent, Christensen, to file and serve out of time a notice of cross-appeal against the orders made by the judge in which he found Christensen liable for Paxton's assault on Colleen Kniese, but failed to find that such liability arose from acts necessarily or reasonably done or omitted to be done by Christensen in good faith (in the course of his duty).

161. There were also cross-appeals brought by Davison and Jenkin (the second and third defendants in the original action) against orders made by his Honour in favour of Horvath, Love, David Kniese and Colleen Kniese. In support of these appeals it was contended that a number of his Honour's orders were irregular, but in that respect counsel for Davison and Jenkin agreed with counsel for the State that the correction of irregularities should abide the Court's reasons for judgment. Otherwise, counsel abandoned most of the substantive grounds raised by the cross appeals; and confined their arguments before us principally to the contention that his Honour was in error in concluding that Love had proved his cause of action in malicious prosecution against Davison.

164. Furthermore, all counsel upon this appeal agreed that his Honour's orders, recording judgment in alternative forms, were defective and would ultimately need to be re-arranged by this Court. However they agreed that it would be sensible to await the reasons given by the Court in respect of the substantive issues raised on the appeal.

168. It is convenient to consider first the proper construction and operation of s.123 because that will go some way towards explaining how his Honour fell into error in concluding that Christensen's relevant conduct, and that of police defendants that constituted trespass and false imprisonment against Horvath and Love and the door assault against David Kniese, were necessarily or reasonably done in the course of their duty for the purpose of that provision. The section was introduced into the principal Act in 1999 and came into operation on 2 April 2000. Relevantly, sub-sections (1) and (2) read:

"(1) A member of the force ... is not personally liable for anything necessarily or reasonably done or omitted to be done in good faith in the course of his or her duty as a member of the police force .... (2) Any liability resulting from an act or omission that, but for sub-section (1), would attach to a member of the force ... attaches instead to the State. ..."

172. Hitherto, given the principle determined in Enever v. The King[11] and like cases, police members have generally been regarded under the law as exercising an independent discretion when acting in the course of their duties and thus, as being personally liable in respect of tortious acts or omissions committed in that context. However, the very nature of those duties and the circumstances under which they may need to perform them render police members peculiarly vulnerable to civil suit. They are regularly called upon to make extremely difficult decisions as to the proper course to be adopted in the course of performing their important role in our community and, sometimes, in circumstances where the opportunity for mature or deliberate reflection may not be possible. Unless freed of unnecessary apprehension when going about their tasks in an appropriate fashion, their ability and preparedness to do so could be significantly reduced. Recognizing that there is a need for some protection against civil action but never accepting any obligation to do so, as a matter of practice the State has regularly indemnified police members in such circumstances. The new section was intended to regularize the situation from the perspective of police members whilst ensuring that persons who may be injured or incur loss and damage as a consequence of the tortious conduct of members in the course of their duties were able to secure compensation.

175. That this was the aim of the section can be deduced from a number of circumstances, including the following. First, the words of the section convey that intent. Next, s.1(c) of the amending Act of 1999[12] also points to that conclusion. Furthermore, when the Act was introduced, it can be assumed that Parliament was aware of the notorious fact that police members were at risk of being held personally liable for tortious acts or omissions committed in the course of duty, often by reason of error of judgment on their part rather than due to any gross failure to disregard rights. A good example of such a situation is to be found in Zalewski v. Turcarolo[13]. It may further be assumed that, being aware of the mischief, Parliament sought to address it through the operation of s.123.

178. Moreover, the Explanatory Memorandum and the speeches in Parliament made in the course of the debate during the Second Reading Speech referable to this legislation, make it abundantly clear that the essential purpose of the section was to provide this protection to police officers. The Explanatory Memorandum, for example, states that the new s.123 was inserted "to protect members of the police force ... from personal liability for anything necessarily or reasonably done or omitted to be done in good faith in the course of duty". In their speeches, the Minister[14] and several members of Parliament from all political parties[15] confirmed that the section would indemnify police officers against liability arising from the performance of their duties if they acted bona fide.

181. Nevertheless, as is plain from the words of the section, the protection was not to be absolute and available regardless of the circumstances. In this context, it is to be noted that members of the Legislative Assembly, who participated in the Parliamentary debate when the Bill was being introduced, spoke of the provision protecting "responsible"[16] members, who acted "in good faith"[17] and who were "doing the right thing"[18]. The Minister for Police and Emergency Services emphasized this aspect, saying:[19]

"The bill also provides immunity to police officers from personal liability for civil action arising from any act or omission undertaken in good faith while on duty. This measure will free responsible police members from the worry of legal proceedings while performing their duties and is consistent with the protection already afforded police officers in New South Wales and South Australia."

It is to be observed that in this passage the Minister referred to protection which was 'consistent' with that afforded to police members in the two States mentioned, rather describing it as 'the same' or 'of equivalent extent'. A comparison of the various interstate provisions[20] reveals the presence of significant differences between the bases upon which protection is provided to police members.

186. We consider that it is relatively clear from the terms of the Victorian provision and from the Parliamentary debates that preceded its enactment that there was recognition by the legislature of the need to provide a proper level of protection to police members on the one hand, and the need to ensure that no encouragement was thereby being given to the development of an attitude of irresponsibility by police members on the other. In clear distinction to the statutory provisions which govern the position in other parts of the country, honesty of purpose or "good faith", for they amount to the same thing, was not the sole criterion on which the existence of protection was to be based.

189. Section 123 accordingly contains a number of limiting expressions. The acts or omissions which would otherwise give rise to civil liability must be "necessarily or reasonably" performed or omitted "in good faith" and, of course, "in the course of duty". There is a considerable overlap between these notions. Thus, for example, for the section to operate, all relevant acts or omissions had to be performed in the course of duty of the member concerned. Clearly, conduct not undertaken in good faith could not be regarded as being relevantly linked to the performance of the member's duty. Further, an act or omission not in good faith could hardly be described as necessarily or reasonably done, or not done, in the course of duty. Moreover, whatever test of reasonability was adopted, it would have to be assessed in terms of the duty of the member in the circumstances in which that member was placed. The interdependence of the notions underlying these expressions, acknowledging that as a matter of statutory interpretation proper effect must be given to each of the words used, makes it apparent that the expression anything necessarily or reasonably done or omitted to be done in good faith in the exercise of his or her duty should be read as a whole.

192. Bearing in mind that the provision contemplates situations in which tortious liability may arise, the words "necessarily" and "reasonably" cannot be interpreted in too narrow a fashion if the protection conferred is not to be rendered illusory. The notion of necessity could not sensibly be perceived as covering only those acts or omissions in which there is, objectively viewed, a strict obligation to act or omit to do so if the member concerned was to perform properly his or her duty. If it were to be so treated, the mere making of a mistake by the member as to the content of the obligations, however well intentioned, and whatever the circumstances in which the mistake was made, would remove the statutory protection from the member. Clearly, this was not intended by Parliament. Moreover, for a generally similar reason, the word "reasonably" cannot be construed as importing a totally objective test of the "reasonable person" variety.

195. As we have earlier pointed out, on more than one occasion in the course of Parliamentary debate on the section, reference was made to "responsible" police members, who nevertheless made possibly wrong choices concerning the course to be adopted in relation to a situation with which they were confronted. There can be no doubt that Parliament intended that such persons would be afforded immunity from civil suit. Whether approached by reference to the terms of the statutory provision itself, interpreted literally or by reference to this underlying policy, there is no sensible reason for construing the provision in a narrow or restrictive fashion.

198. It follows that the perspective from which the conduct of a member in a given situation is to be viewed is that of the member concerned. In situations in which the necessity for, or reasonability of, the adoption of a particular course that has given rise to civil liability is to be assessed, the proper test to be applied is whether, having regard to all of the circumstances existing at the time and, viewed from the perspective of the member, reasonable grounds existed for the adoption of the chosen course. In all save a few cases, it would be anticipated that police members acting honestly or in good faith in the course of their duties would be regarded as satisfying this test and therefore as acting necessarily or reasonably within the meaning of the section.

201. Broadly speaking, the concept of reasonability of conduct in this context may be seen to resemble that considered by the High Court when dealing with the notion of the presence of reasonable grounds for self-defensive action. Obviously this comparison cannot be taken too far, but it is useful in a situation where what is being considered are decisions as to action or inaction by persons subject to a degree of pressure, in one case by the fact or possibility of some form of attack where an assessment of its likelihood or significance may have to be made with little or no opportunity for mature deliberation, in the other by the nature of the duty imposed upon the police member concerned and the circumstances under which it is to be performed.

204. Thus, in order to determine whether a police defendant is absolved from personal liability in respect of the complained conduct by reason only of the operation of s.123, it is necessary to determine whether that conduct was necessarily or reasonably done or omitted to be done by the defendant in good faith and in the performance of the duty. The question whether the conduct was relevantly necessary or reasonable is to be determined, as we have said, from the perspective of the police defendant and having regard to all the circumstances. Contrary to what his Honour assumed, it is not a matter of characterising the overall conduct of the police officer and then determining whether there was a reasonable connection between the conduct of that kind and the duty. As Mr. Kaye for the State submitted, it was such a construction of s.123 by his Honour that led him to conclude that, since Christensen's conduct was properly characterised as taking part in the raid (including its planning) and since an act of that kind fell within the course of Christensen's duty as a police officer, all his acts which formed part of the raid, including the acts complained of, were "necessarily or reasonably" done in the course of his duty for the purposes of s.123 and that, if they were also done in good faith, no liability attached to him in respect of that conduct by reason of s.123(1). It was because his Honour did not look at the acts complained of or the manner in which they were carried out and ask whether those acts were necessarily or reasonably done in the course of Christensen's duty, that he made inconsistent findings, namely, that Christensen's conduct was "manifestly" negligent and was the manifestation of his contumelious disregard for the plaintiffs' rights on the one hand, and on the other, that he had acted necessarily or reasonably in the exercise of his duty. His Honour's like conclusion in respect of the conduct of the other police defendants was also based on his wrong interpretation of s.123.

208. We have referred earlier to the issues that were raised by the parties for determination in this appeal[21] and now turn to consider the State's attack on his Honour's assessment of damages. In that context, Mr. Kaye submitted that the learned judge erred in three broad respects. First, it was said, it was error for his Honour to assess damages against Christensen on account of his negligence in the same sum - as to compensatory, aggravated and exemplary damages - as the total damages awarded against the other defendants as a consequence of the intentional torts; and then to transfer to the State the total damages awarded against Christensen. More particularly, it was argued:

(a) It was fundamentally erroneous for his Honour to award exemplary damages against Christensen in respect of his liability in negligence, particularly having regard to the findings which his Honour had made.

(b) It was further submitted that the acts and omissions constituting the negligence of Christensen in planning and supervising the "raid" on the premises did not, relevantly, "cause" the damage suffered by the individual plaintiffs as a result of the intentional torts. It was contended that his Honour had found that these intentional torts were committed pursuant to a common design or concert on the part of the individual police officers who attended the premises; and the damage suffered by the plaintiffs was caused by, or was the consequence of, that common design or agreement and not the consequence of Christensen's negligence.

214. Secondly, it was contended for the State, that his Honour erred in concluding that exemplary damages awarded against the various police defendants, including Christensen, were capable of being attached to the State pursuant to s.123(2) of the Act. Counsel finally submitted that the judge wrongly held that the acts or omissions of the police defendants which constituted trespass and false imprisonment in respect of Horvath and Love and the door assault in respect of David Kniese were "necessarily or reasonably done or omitted to be done" in the exercise or duty for the purposes of s.123 of the Act. [Para. 1(a) of the State's outline and grounds 3 and 6 of its notice of appeal re Horvath.] Thus, the State contended, the liability of the police members for those torts did not attach to the State under s.123(2) of the Act.

218. It is convenient to deal first with Mr. Kaye's arguments in relation to the judge's relevant findings and assessment of damages in respect of Christensen. In support of his submissions that it was fundamentally erroneous for the judge to have awarded the exemplary damages which he did against Christensen, Mr. Kaye advanced a number of arguments:

(a) The sum which his Honour awarded was not, and did not pretend to be, a genuine estimate of damages necessary to punish and act as a deterrent to Christensen or others who might conduct themselves in a similar vein.

(b) The amount of exemplary damages which his Honour assessed against Christensen was inconsistent with the findings which he had made.

(c) The findings which his Honour made in respect of Christensen were, because of his misinterpretation of s.123(1) and (2) of the Act, contradictory. On a proper analysis of those findings, he could not have awarded exemplary damages against Christensen.

(d) S.123 of the Act, properly interpreted, does not contemplate that liability for conduct of a kind attracting an award of exemplary damages can be attached to the State.

It is convenient to consider these arguments separately.

Not a genuine estimate

224. Before dealing with his Honour's assessment of exemplary damages against Christensen, it is relevant to note his Honour's methodology of assessing the various heads of damages. We have already mentioned that the total damages awarded against Christensen for his negligence equalled the total of the damages that were awarded to the plaintiffs in respect of the intentional torts. Mr. Kaye submitted that it was tolerably clear from the structure of his Honour's assessment process that the award against Christensen in the amount and form in which it was made, was to be used as a vehicle for compensating the plaintiffs at the hands of the State.

227. We think there is much substance in this submission. As we have noted earlier, it is apparent that it was his Honour's intention, in assessing damages against Christensen, to make them equate to the sum total of the awards made in respect of the intentional torts committed by the individual police officers. He said:

"There are complications in the mechanics of the awards for the intentional torts which I will deal with shortly. But for this reason I will deal initially with [Horvath's] entitlement to damages against the State of Victoria for Christensen's negligence - because this duplicates the damages for the intentional torts in any event - on the basis that the occurrence of the individual torts were all reasonably foreseeable consequences of the negligence."

One of the consequences, and we think the error, of this finding was that his Honour effectively made Christensen vicariously responsible for the damages awarded, inter alia, to Horvath flowing from the assault by Jenkin upon her in the course of which Horvath's nose was badly broken and other injuries sustained; an assault which his Honour regarded as excessive, outside any agreement or concert between the defendants and deserving of both aggravated and exemplary damages. In respect of this assault upon Horvath, his Honour awarded damages against Jenkin alone in the sum of $45,000 for what he called "ordinary compensatory damages", $15,000 for aggravated damages and $30,000 for exemplary damages. His Honour said that these damages were to be the sole liability of Jenkin because, in acting excessively, he had gone "beyond any concert" and, in so behaving, "could not be said to have acted in good faith".

232. Turning more specifically to exemplary damages, it will be noted that the sum total of exemplary damages awarded against Christensen was $105,000. This amount was the total of the exemplary damages awarded against the individual police defendants on account of the intentional torts. Mr. Kaye asks, rhetorically, why should Christensen be asked to bear as exemplary damages, those awarded by his Honour to punish, for example, the excessive conduct by Jenkin. He contends, and we agree, that awards of exemplary damages for intentional torts committed by other members cannot properly be absorbed into punitive damages awarded against Christensen as a consequence of his negligence. In our view Christensen's negligence in planning and supervising the "raid" cannot be equated, for the purposes of assessing and awarding punitive damages, with individual acts of deliberate force, particularly where those acts have been found to be outside the bounds of the agreement between the members of the police who participated.

Findings preclude award of exemplary damages against Christensen

236. Mr. Kaye submitted, again we think correctly, that his Honour's ultimate findings in respect of Christensen's negligence made it inappropriate, in any event, to award punitive damages against him. In determining what damages should be assessed, his Honour clearly had it in mind that, whatever they were, they were going to be "transferred to the State" pursuant to s.123 of the Police Regulation Act. He said:

"I will be making the award in the negligence action against the State ... ."

"I consider s.123 of the Police Regulation Act applies to render the State of Victoria liable for this award and Sergeant Christensen is relieved of this liability. As previously discussed herein, I consider the factors constituting Christensen's negligence (the raid, its planning, supervision and execution) were `necessarily or reasonably' done and, by the State's concession, were not done otherwise than `in good faith in the course of his duty', and, in any case, I find this to be so, notwithstanding that he acted ... with a contumelious disregard of the plaintiff's rights."

Mr. Kaye submitted that this finding precluded an award of exemplary damages against Christensen. It was his contention that a police officer who is found to have been acting necessarily or reasonably, and in good faith, in the course of his duty as a member of the force cannot properly be the subject of an award of exemplary damages because such a finding is a contradiction in terms to a finding that the officer acted with conscious and contumelious disregard of the rights of those members of the public affected by that police officer's actions.

243. Again we think that there is merit in these contentions. His Honour's reasons for decision up to the point where he came to assess damages appear to us to be an exercise of logic and clarity, pointing to a police exercise which was ill motivated and clumsily conceived and executed. However the assessment of damages - and particularly exemplary damages - against Christensen seems to us to have been governed, not so much by principles which ought to be employed in assessing such damages, but rather as a means through which the plaintiffs could be assured of recovering compensation from the State via the provisions of s.123 of the Act. Exemplary damages are rarely awarded but, when they are, they are awarded to punish conscious wrongdoing in contumelious disregard of another's rights[22]. "Contumelious" is not a word which enjoys wide currency in modern society but, when used in the context in which the law uses it, is calculated to describe conduct which is disgraceful, humiliating or contemptuous of the rights of others. Although the law of this country recognizes a wider range of circumstances in which exemplary damages can be awarded than is recognized in England[23], they will rarely be awarded in actions for negligence, and are not appropriate to cases of negligent acts or omissions unaccompanied by conscious wrongdoing[24]. It is, of course, in the nature of a police officer's duty that he or she is constantly in contact with members of the community. As we have previously noted, the officer will frequently be placed in a situation where he or she has to make "on the spot decisions" which will have ramifications for citizens who are affected by that decision. The decision might be such that more time and calmer reflection will, with hindsight, suggest it was wrong or even unreasonable, and give rise to a claim in damages for negligence[25]. However, if the conduct of the police officer is done "reasonably in the course of the officer's duty", and is done in "good faith", it seems to us that such conduct must be the antithesis of conduct which should be punished by an award of exemplary damages; namely conscious wrongdoing in contumelious disregard of the rights of those affected by it. That is why counsel for the State attacked his Honour's findings in relation to Christensen as "contradictory in terms" and as findings "of convenience" made very much with the consequences of s.123 of the Act in mind. Mr. Wheelahan, who represented Mr. Christensen on this appeal, made "common cause" with counsel for the State on this issue.

246. It follows, therefore, that in our view, his Honour erred on awarding exemplary damages against Christensen in respect of his liability in negligence to the plaintiff.

Exemplary damages against Christensen and police defendants not transferable under s.123

250. It is convenient to deal at his point with what Mr. Kaye claimed was the judge's second principal error, namely, holding that the exemplary damages awarded against the police defendants, including Christensen, were capable of being attached to the State under s.123 of the Act. It seems to us that the terms of s.123(1) and (2) of the Act do not contemplate that liability of individual police officers for an award of exemplary damages can be attached to the State. As we have previously noted, and unlike some States and Territories[26], the terms of s.123 of the Victorian Act do not make the State vicariously liable for the torts of police officers committed in the exercise of their independent discretion. Such officers are still recognized in this State as exercising powers and duties on their own responsibility[27]. Although the provisions of s.123 are undoubtedly designed to be protective of police officers and, thus, to be given no narrow construction[28], they are nevertheless intended to operate so as to attach liability to the State only where that liability has been incurred for things necessarily or reasonably done in good faith in the course of duty. In other words, it seems to us that sub-s. (1) of s.123 is intended to "carve out" an area of conduct of police officers in respect of which they will be immune from personal liability and - despite imperfections of drafting - sub-s. (2) is intending to attach to the State the liability against which the police officer is immunized by sub-s. (1). If that is the intention of the section, as we think it is, then it does not transfer liability for conduct warranting an award for exemplary damages because, as we have already said, such conduct must necessarily be the antithesis of conduct for which sub-s. (1) provides immunity.

253. It follows from what has been said that we cannot accept the submission made by Mr. Holdenson on behalf of Davison, Jenkin and Saunders. He contended that s.123 is concerned to transfer all liability of police officers resulting from their acts and omissions. Sub-section (2), he argued, provides, in terms, that "any liability resulting from an act or omission" is to attach to the State (our emphasis), and that those words should not be read down so as to restrict them to "liability for damages other than exemplary damages". If that was intended, he submitted, the Legislature could easily have said so expressly, as it has in counterpart legislation in other States[29]. Properly construed, he argued, s.123 places the State in the same position as a compulsory insurer of police officers; and as such the State is not to be precluded from "picking up" liability for an award of exemplary damages[30].

256. We do not accept the meaning attributed to s.123 by Mr. Holdenson. In our opinion, the meaning of "any liability" in sub-s. (2), which is to attach to the State in relief of the member of the force, is liability for conduct of the type described in sub-s. (1); that is, liability for anything necessarily or reasonably done in good faith in the course of the member's duty. To speak of "liability for damages" is to distract attention from what it is for which immunity is being provided; namely those things necessarily or reasonably done or omitted to be done in good faith in the course of duty. Acts and omissions of that sort are, as we have said, the antithesis of conduct for which the law awards exemplary damages. It is unnecessary for the section to expressly exclude liability for conduct which will merit an award of exemplary or punitive damages. The terms of the section are sufficiently explicit to achieve that result. One gets little help in the proper interpretation of s.123, (as we have previously said), from looking at counterpart legislation in other States and Territories. It is sufficient to note that in those jurisdictions where specific provision is made to exclude the State's liability for punitive damages, the Crown is made vicariously liable for torts committed by members of the force in the purported exercise of their duty. In those jurisdictions, as can be seen from Adams v. Kennedy[31], different issues will arise for consideration in determining whether those who are vicariously responsible for the torts of others, should shoulder the burden of exemplary damages awarded against the wrongdoer.

259. For similar reasons as those to which we have already adverted, we cannot accept the argument advanced by Mr. Dreyfus on behalf of the plaintiffs/respondents to the effect that "the fact that the plaintiffs ... were able to obtain an award of exemplary ... damages on the same cause of action in respect of which they also obtained an award of compensatory damages does not alter the inherent nature of the conduct in respect of which the defendant police officers were found liable so as to take it out of the scope of conduct in the course of duty for which liability could be transferred to the State under s.123". Nor, for the reasons already stated, can we accept his contention that "an award of exemplary damages is not inconsistent with the conduct complained of being `necessarily or reasonably done or omitted to be done in good faith in the course of ... duty' as a police officer under s.123 ...". This latter submission was founded upon the proposition that the State had "conceded" that the defendant police officers acted in good faith; and that "(n)otwithstanding that their conduct was deserving of criticism, there can be no suggestion that what they did was not done by them in the course of (admittedly badly) performing their duties as police officers".

262. There are two difficulties which stand in the way of accepting these arguments. It is true that s.123 looks to conduct, and not the nature of the damages awarded, as the determinant of attachment of liability to the State. But the conduct is necessarily characterized by the nature of the damages awarded . The submission made on behalf of the plaintiffs/respondents proceeds on the basis that the State had conceded that the defendant police officers had acted in good faith. That concession, however, was made only in respect of their conduct up to the point of entry into the premises. There was no such concession in respect of their conduct inside the premises. That conduct, as his Honour found, was not in good faith; nor in our view was it conduct which was necessarily or reasonably done in the course of the respective officers' duties. His Honour found that the actions of the individual police officers during the "raid" were actions "of a kind that were `necessarily or reasonably done in the course of duty' " and thus concluded that "the application of s.123 will not fail on that score". That is an interpretation of the section which, in this Court's view, cannot be accepted. However, having so concluded, his Honour was not prepared to accept that the officers' assaults upon the occupants of the house were done "in good faith", and that, for that reason, the damages which he awarded against Jenkin for his assaults on Horvath and David Kniese, and the damages awarded against all the police defendants for their assaults on Love and Colleen Kniese could not be transferred to the State; the only reason why the State became liable to pay them - or their equivalent - was because the judge attributed them to the negligence of Christensen.

265. For these reasons, we are of the opinion that the trial judge was in error in holding that the liability of individual police members, including Christensen, "for awards of exemplary damages" could be attached to the State.

269. As we have mentioned, counsel for the State further argued that the judge was in error in awarding damages against Christensen, in respect of the cause of action in negligence, on the basis that Christensen's negligence relevantly caused the damage resulting from the specific intentional torts either committed by Christensen, or to which he was a party, or indeed to which he was not a party - such as the assaults by Jenkin on Horvath and David Kniese which the judge found went beyond any plan or concert between the officers and for which Jenkin alone was to bear liability. To award a total sum of damages against Christensen for the cause of action in negligence which equalled the total damages awarded to each plaintiff in respect of the intentional torts committed against that plaintiff was, so Mr. Kaye submitted, erroneous. The damages awarded to each of the plaintiffs for intentional torts included damages for intentional torts either directly committed by Christensen (that is, his assault on Love) or to which he was found to be a joint tortfeasor. Mr. Kaye submits that such a process amounts to absurdity because it is tantamount to a finding that, because he was negligent, Christensen committed intentional torts. Such a finding, it is contended, is contrary to common sense, and the common sense concept of causation. The damage caused by the intentional torts committed by the individual police officers - whether acting in concert or otherwise - was not caused, so it was submitted, by Christensen's negligence in planning, supervising and executing the "raid". Rather the cause of the plaintiffs' damages were the individual acts of the individual police officers whether committed as part of, or outside, the antecedent common concert to which Christensen was a party. Those acts, it was submitted, were not a product of Christensen's negligence; rather they were the product of the antecedent concert to which Christensen was a party, or the individual acts of the police officers which went beyond such concert. In other words, it was submitted the damage to the individual plaintiffs was, relevantly, caused by the intentional acts committed by individual police officers, either alone or in concert, in the exercise of their independent discretion.

272. The response by the "plaintiffs and police defendants/respondents" to these submissions was that, upon his Honour's findings in relation to the "volatility" of the exercise, it was reasonably foreseeable that the "raid" would get out of hand in the way in which it did, and that damage would be caused of the kind which in fact occurred. Thus, it was said that the negligence of Christensen in the planning and execution of the "raid" was, relevantly, a cause of the damage which was occasioned, and that the chain of causation was not broken by the fact that the individual officers were acting in concert, or even beyond concert. There was little difference, it was submitted, between the circumstances of this case and cases where the chain of causation between an employer's negligence and the injuries caused to his employee is not necessarily broken by foreseeable, but exacerbating, medical treatment[32].

275. In our opinion, it is clear from his Honour's findings that the injuries and damage suffered by the individual plaintiffs/respondents were not relevantly caused by Christensen's negligence in planning, supervising and executing the "raid"; rather they were directly caused by the administration of physical violence by individual police officers, exercising their independent discretions. The judge found that the physical force was administered pursuant to an agreement or arrangement made by those officers at the time when they assembled at the intersection preparatory to the raid. To that end, his Honour found that the officers were jointly responsible for the assaults, and their consequences, upon Love and Colleen Kniese and for the door assault on David Kniese; but that the assaults by Jenkin upon Horvath and David Kniese were the responsibility of Jenkin alone, because they went beyond the agreement so made. He said:

"It goes without saying that of primary importance regarding the joint liability concept is the establishment of the bounds of the underlying concert or agreement, i.e. here, at the intersection. It is my conclusion that all police members present at the rendezvous formed part of a concerted plan to return to the premises and arrest the two alleged offenders and, if this meant forcible entry, dealing with by way of restraining or securing others present, and locating and apprehending targeted pair, so be it. I have not concluded that they knew or believed such entry into the house and subsequent people-handling was unlawful; and I have not concluded that the plan included the application of such a degree of violence as to constitute `excessive violence' - although no doubt it was contemplated that at least a reasonable or proportional degree of violence may have to be used ...."

279. It is true that the fact that there is some intervening action between a defendant's negligence and the plaintiff's damage does not necessarily mean that damages are not a consequence of the defendant's negligent conduct. That is so where the intervening action is the "very kind of thing" which is likely to happen as a result of the careless act of the defendant[33]. Similarly, the fact that such intervening conduct was foreseeable does not necessarily mean that the negligent defendant is liable for damage which results from the intervening action[34]. In the long run causation, where negligence is in issue, is essentially a question of fact to be answered by reference to common sense, even though considerations of policy and value judgments will necessarily apply[35]. Applying that test to the facts of this case, it seems to us that it was not the negligence of Christensen which exposed the plaintiffs to a risk of injury arising from deliberate conduct; rather it was the agreement of the police officers to engage in such conduct to achieve what they regarded as legitimate ends. We agree with Mr. Kaye that it is an absurdity to suggest that Christensen's negligence caused him to assault Love; or that his negligence caused him to become liable as a joint tortfeasor for the assaults perpetrated on other occupants of the premises. This is not a case where it is necessary to ask whether the chain of causation between Christensen's negligence and the damage to the plaintiffs was broken by supervening events. Rather this is a case where that damage flowed as a direct result of the police officers pursuing a common design to which all, including Christensen, were parties. It was a common design to use such force as the officers believed necessary, in the exercise of their independent discretions, to achieve the result which they desired. In this sense, it seems to us that any fault of Christensen in planning and supervising the "raid" was overtaken by the agreement which the officers had made in the course of which they committed the intentional torts as part of their common design. Having found that the intentional torts were committed as part of a common plan or concert to which Christensen was a party (even though some of those acts were "excessive"), it would be artificial and contrary to principle to conclude that it was Christensen's negligence which "caused" the infliction of injury to the respective plaintiffs.

282. For the reasons stated, we are of the view that the judge was wrong to have awarded damages against Christensen, including exemplary damages, in respect of the cause of action in negligence on the basis that it was his negligence which caused the damage resulting from the commission of the specific intentional torts. Rather, his liability should have been limited to the damages assessed by the judge for the intentional torts committed by him or to which he was a party.

285. The reasons which we have given in respect of the "causation" issue also dispense with the cross-appeal by Christensen in respect of the damages awarded to Colleen Kniese. The arguments on this cross-appeal proceeded on the basis that, because Christensen's liability for the assault by Paxton upon Colleen Kniese was founded upon his joint responsibility for concerted action, and that the facts upon which his liability was so found were co-extensive with the facts supporting his liability in negligence, it was appropriate that the judge's alternative order for judgment, made in paragraph 2 of the orders, against Christensen jointly with the other police defendants should attach to the State pursuant to s.123(2) of the Act. This result necessarily followed, it was contended, because of the concession made by the State that any acts or omissions in relation to the raid which may be found to constitute negligence on the part of Christensen were done in good faith. In view of the conclusion to which we have come that it was not the negligence of Christensen which relevantly caused the damage to Colleen Kniese, but rather was the intentional acts committed in pursuit of a common design in respect of which no such concession was made by the State, the foundation upon which the cross-appeal is based must necessarily fail. Similarly it must fail because of our conclusion that the judge was in error in finding that the acts and omissions constituting the negligence of Christensen were "necessarily or reasonably done in the course of his duty".

288. Since in our view, Christensen's negligence was not causative of the damage that flowed from the intentional torts, it follows that his Honour's assessment of damages against Christensen for negligence in respect of the four plaintiffs must be set aside, as must his conclusion that the exemplary damages awarded in favour of Horvath and Love for trespass and false imprisonment, and in favour of David Kniese for the door assault, should be transferred to the State pursuant to s.123(2). There was no challenge to his Honour's assessment of damages in respect of the intentional torts so that the liabilities of the police defendants for such damages as are set out in the Table, remain.

Transfer of liability for intentional torts to State

292. In light of what we have already said, we can deal briefly with his Honour's conclusion that the acts or omissions of the police defendants, which constitute trespass and false imprisonment and the door assault, were "necessarily or reasonably done" for the purposes of s.123 of the Act and that, therefore, their liability for such conduct attached to the State pursuant to sub-section (2). As we have noted, this conclusion was governed by the judge's erroneous construction of that provision, and given his Honour's criticisms of the relevant conduct of the police defendants to which we have also referred, it cannot be said that they acted reasonably in the course of their duty for the purposes of the above provision. It follows that their liability for these intentional torts did not attach to the State under s.123(2) of the Act. Consequently, his Honour's decision to the contrary must be set aside.

296. Mr. Holdenson, on behalf of Davison, contended that his Honour's findings, reflected in his subsequent orders that Love should succeed against Davison on his claim for malicious prosecution were erroneous. The basis of this cause of action was the preferment by Davison of summary charges against Love arising out of events which had occurred on 9 March 1996. The first two charges alleged assaults upon police officers (namely Davison and Jenkin) in the execution of their duty. These charges arose out of the first visit by Jenkin and Davison to the premises in Coolart Road following the observations made by them of the driving of the car by Horvath. In the course of that visit Davison and Jenkin were "man-handled" by Love resulting in the tearing of Jenkin's shirt, and the ripping of Davison's tie from his neck. Charges 3 and 4 alleged an assault by Love on Constable Saunders and unlawful damage to property arising from events which occurred at the Hastings Police Station following the raid. As we have already mentioned, all the charges were later dismissed by the magistrate sitting at the Frankston Magistrates' Court. In his amended statement of claim, Love alleged that Davison had preferred all of these charges against him maliciously and without reasonable or probable cause. The judge upheld these claims in respect of the first two charges but dismissed them in relation to the charges brought in relation to Love's conduct at the police station, saying that "of course" he was not satisfied by the "proofs of ... Love in relation to the charges arising from his alleged behaviour in the interview room". However, in respect of the charges of assault upon himself and Jenkin, his Honour concluded against Davison that he was:

"... satisfied that the respective informant - defendants (Jenkin and Davison) did not hold honest beliefs on reasonable grounds that Corinna Horvath and Craig Love were guilty of those charges",

"that their institution of the proceedings was not based upon a proper motive, but arose from a mixture of ill-will and a desire to justify ex post facto the general conduct of police throughout the whole affair."

It should be noted that his Honour's conclusions in respect of these matters drew no distinction between the conduct of Jenkin and Davison. Jenkin had preferred charges against Horvath, which - so far as they alleged assault - included indictable offences of "intentionally causing serious injury", "recklessly causing injury", "escaping from custody", "assaulting Jenkin knowing he was a member of the police force" and "assault by kicking".

303. The learned judge assessed damages for the malicious prosecutions which he had found respectively against Jenkin and Davison in the same amount; namely $10,000 compensatory damages and $10,000 exemplary damages.

306. Mr. Holdenson contended that his Honour's findings against Davison were not supported by the evidence; and that he had erred by considering the claims against Jenkin and Davison together, a course which deprived Davison a chance of having his conduct considered separately when the evidence in the trial revealed that, of all the officers who attended the premises on this day, Davison had conducted himself with a degree of restraint. He contended that the evidence provided no basis upon which the judge could find that Davison had acted maliciously or without reasonable or probable cause in preferring against Love the two summary charges of assault which he did. These charges, in contra-distinction to those laid against Horvath by Jenkin, were laid pursuant to the Summary Offences Act 1966, and it was not in contest that Love had man-handled the two police officers when they first arrived at the premises. Indeed, the judge had found that Davison had acted responsibly on the first visit to the premises, was "more realistic" than Jenkin after their authority to remain on the premises had been terminated and had "more than once tried to encourage Jenkin to leave ..."

309. The onus of proving that Davison had maliciously and without reasonable and probable cause preferred the summary offences of assault against him, of course, was upon Love. His Honour was aware of this, and because of the nature of the allegations, was also aware - as he said - that "in view of the serious nature of the allegations being made, findings should not be made lightly but rather should be the product of cogent evidence ..."

312. Mr. Holdenson contended that it was not open to the judge to infer on the evidence that, in preferring and maintaining the charges against Love, Davison was acting maliciously and without probable cause. No direct evidence going to the elements of the claim was given. Indeed, although Davison gave evidence at the trial, no questions were asked of him in relation to the claim. Although Mr. Holdenson endeavoured to suggest that plaintiff's counsel, in failing to put these matters to Davison, was in some way in breach of the rule in Browne v. Dunn[36], we do not think that is so. Love's case on the issue of malicious prosecution could only be based on the drawing of inferences upon the whole of the circumstances described by the evidence. Davison, however, had given evidence that, upon the first visit to the premises, Love had "grabbed Jenkin by his T-shirt ... and ripped it, and then grabbed me by my tie and ripped it from my neck". This evidence was not challenged in cross-examination. His Honour indeed made no finding in respect of the matters at all.

315. The real thrust of Mr. Holdenson's argument was that the judge had led himself into error by making findings in respect of the actions for malicious prosecution against Davison which "lumped" Davison in with Jenkin when, if he had considered the cases separately, he would have been bound to conclude that the claim against Jenkin was much stronger than the case against Davison. In failing to consider them separately, it was contended, an injustice was done to Davison because this was not a case where the inferences to be drawn against Davison were nearly as strong as those to be drawn against Jenkin. A reasonable person, it was submitted, upon viewing the circumstances of the first incident as a whole, could properly conclude that it was proper for Davison to bring the summary assault charges which he did; or, put another way, could not responsibly conclude that, in preferring against Love the summary charges which he did, Davison acted maliciously and without reasonable or probable cause.

318. In our view, there is much substance in this argument. In providing the short reasons which he did in respect of this aspect of the claim and in "lumping" Davison in with Jenkin, to use Mr. Holdenson's term, we consider that the judge did an injustice to Davison. It was one thing to infer that Jenkin, whose conduct throughout the affair was correctly described by his Honour as outrageous, and whose charges preferred against Horvath were clearly an over-use of his powers, had preferred those charges for an ulterior purpose and had preferred them maliciously and without reasonable or probable cause. But it was entirely another to infer that Davison, who appears on the judge's findings to have acted with much greater restraint, was acting maliciously and without reasonable and probable cause, and for the ulterior purposes which his Honour found, in preferring the two summary charges of assault against Love.

321. In our view this aspect of Davison's cross-appeal should be upheld, and his Honour's orders against Davison on Love's claim for malicious prosecution set aside.

325. For the reasons which we have given, it follows that his Honour's decision that Christensen is liable to the plaintiffs in negligence (and that the damages assessed against him in negligence be transferred to the State pursuant to s.123(2) of the Act) must be set aside. The same applies to his Honour's decision that the State is liable under this provision for the damages assessed in favour of Horvath and Love for trespass and false imprisonment and those in favour of David Kniese in respect of the door assault. Similarly, the judge's decision as to Davison's liability to Love for malicious prosecution (and the consequentially assessed damages) must also be set aside. Otherwise, his Honour's findings as to the liability of the individual police defendants for intentional torts (and against Jenkin for malicious prosecution) stand as do the judge's assessment of damages in respect of those torts.

[1] Horvath was the first plaintiff below.

[2] Love was the second plaintiff below.

[3] Jenkin and Davison were, respectively, the third and second defendants below.

[4] They were the third and fourth plaintiffs respectively.

[7] Colleen Kniese's claim was that the four police defendants and others at the scene who were not defendants in the proceeding, acted jointly in relation to her.

[8] Section 16 of Act No. 61 of 1999, the Police Regulation (Amendment) Act 1999.

[9] The judge also found as a fact that Christensen acted in good faith.

[10] His Honour's intention in this regard is made plain by his reference to the observations of Priestley, J.A. in Adams v. Kennedy [2000] NSWCA 152; (2000) 49 N.S.W.L.R. 78 at 87 where exemplary damages were awarded effectively against the State in order to indicate the court's disapproval of the conduct and also "to bring home to those officials of the State who are responsible for the overseeing of the police force that police officers must be trained and disciplined so that abuses of the kind that occurred in the present case do not happen".

[11] [1906] HCA 3; (1906) 3 C.L.R. 969.

[12] "(c) to protect members of the police force from civil actions arising from the performance of their duties".

[13] [1995] VicRp 76; [1995] 2 V.R. 562.

[14] Hansard, Legislative Assembly, 2 December 1999 at 789.

[15] See also Hansard, Legislative Assembly, 16 December 1999, Messrs. Ryan (Gippsland South) (1252), Maxfield (Narracan) (1256), Dixon (Dromana) (1259) and Mr. Haermeyer, the Minister for Police and Emergency Services (1261).

[16] Minister for Police and Emergency Services_, Hansard_, Legislative Assembly, 2 December 1999 at 789; The Member for Narracan, Mr. Maxfield, Hansard, Legislative Assembly, 16 December 1999 at 1256.

[17] The Member for Gippsland South, Mr. Ryan, Hansard, Legislative Assembly, 16 December 1999 at 1252; The Member for Seymour, Mr. Hardman, Hansard, Legislative Assembly, 16 December 1999 at 1254; The Member for Narracan, Mr. Maxfield, Hansard, Legislative Assembly, 16 December 1999 at 1256.

[18] The Member for Dromana, Hansard, Legislative Assembly, 16 December 1999 at 1259.

[19] The Minister for Police and Emergency Services, Mr. Haermeyer, Hansard, Legislative Assembly_,_ 2 December 1999 at 789.

[20] Section 65(1) of the Police Act 1998 (S.A.):

"(1) A member of S.A. Police does not incur any civil liability for an honest act or omission in the exercise or discharge, or purported exercise or discharge, of a power, function or duty conferred or imposed by or under this or another Act or any law."

Section 213(1) of the Police Service Act 1990 (NSW):

"(1) A member of the Police Service is not liable for any injury or damage caused by any act or omission of the member in the exercise by the member in good faith of a function conferred or imposed by or under this or any other Act or law with respect to the protection of persons from injury or death or property from damage." Section 5(3) of the Acts Amendment (Police Immunity) Act 1999 (WA): "An action in tort does not lie against a member of the Police Force for anything that the member has done, without corruption or malice, while performing or purporting to perform the functions of a member of the Police Force, whether or not under a written or other law."

Section 10.5 of the Police Service Administration Act 1990, No. 4 (Queensland) sets up a quite different regime under which the Crown is treated in the circumstances in which it is applicable as vicariously liable for torts committed by a police member who remains a joint tortfeasor but is entitled to be indemnified if acting in good faith and without gross negligence.

[22] Whitfeld v. De Lauret & Co. Ltd. [1920] HCA 75; (1920) 29 C.L.R. 71 at 77 per Knox, C.J.

[23] Uren v. John Fairfax & Sons Pty. Ltd. [1966] HCA 40; (1966) 117 C.L.R. 118.

[24] Gray v. Motor Accident Commission (1998) 196 C.L.R. 1 at 9, per Gleeson, C.J., McHugh, Gummow and Hayne, JJ.

[25] See Zalewski v. Turcarolo [1995] VicRp 76; [1995] 2 V.R. 562, particularly at. 563-5 per Brooking, J.; at 573 ff. per Hansen, J.

[26] See, for example, Australian Federal Police Act 1979, s.64B; Police Administration Act 1990 (N.T.) s.163; Police Service Administration Act 1990, No. 4, (Qld.) Part 10.5; Police Act 1892 (W.A.) s.137(5).

[27] cf. Enever v. R. [1906] HCA 3; (1906) 3 C.L.R. 969 at 976 per Griffith, C.J.

[28] cf. Webster v. Lampard [1993] HCA 57; (1993) 177 C.L.R. 598 at 605-8; Little v. Commonwealth [1947] HCA 24; (1947) 75 C.L.R. 94 at 108-12.

[29] cf. Police Act 1892 (W.A.) s.137(6); Police Service Administration Act 1990 (No. 4) (Qld.) Part 10.5 - 10.6; Police Administration Act 1990 (N.T.) s.163(3); Australian Federal Police Act 1979 (Cth.) s.64B(3).

[30] Lamb v. Cotogno [1987] HCA 47; (1987) 164 C.L.R. 1 at 9-10.

[31] [2000] NSWCA 152; (2000) 49 N.S.W.L.R. 78.

[32] See, e.g., Mahony v. J. Kruschich (Demolitions) Pty. Ltd. [1985] HCA 37; (1985) 156 C.L.R. 522 at 529.

[33] Public Transport Corporation v. Sartori [1997] 1 V.R. 168 at 171-172 per Charles, J.A.; Dorset Yacht Co. v. Home Office [1970] UKHL 2; [1970] A.C. 1004 at 1030 per Lord Reid; March v. Stramare Pty. Ltd. [1991] HCA 12; (1991) 171 C.L.R. 506 at 517-20 per Mason, C.J.

[34] March v. Stramare Pty. Ltd., at 518.

[35] March v. Stramare Pty. Ltd., at 515 per Mason, C.J., Toohey J. agreed at 524 and Gaudron J. agreed at 525.