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

State of Victoria v Horvath and Ors [2002] VSCA 177 - VSCA 2002 case summary — Zoe

[4]

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.

[5]

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.

[16]

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.

[72]

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.

[88]

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.

[97]

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.

[101]

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.

At a glance

Court

Decision date

Before

Source

Judgment (154 paragraphs)

Parties