Strange v Turnbull

Judgment

1. HIS HONOUR: The plaintiff, Mr Robert Strange, has applied for summary judgment pursuant to r 13.1 of the Uniform Civil Procedure Rules 2005 (NSW) in respect of his claim against the executors of the estate of the late Mr Ian Turnbull, the defendant.
2. Mr Strange has pleaded three causes of action (negligence, assault and false imprisonment) arising from an incident on 29 July 2014 during which he was present and witnessed his workmate, Mr Glendon (Glen) Turner being shot and killed by Mr Turnbull. Mr Turnbull was subsequently found guilty of murder by a jury. He died following a heart attack on 27 March 2017 while serving his sentence at Long Bay Correctional Centre.
3. Mr Strange seeks summary judgment as to liability in respect of any or all of his causes of action with damages to be assessed.
4. At the outset of the hearing on 28 September 2017, Mr Alexis, senior counsel for the defendant, made it clear that there was no issue as to liability on the negligence claim; summary judgment in respect of it was not opposed. It was contended, however, that there were triable issues in relation to the intentional tort claims such that summary judgment was opposed in relation to those causes of action.
5. Given that concession, this judgment will be confined to consideration of the application for summary judgment in relation to liability for the assault and false imprisonment causes of action.

Summary judgment

1. The principles to be applied in relation to an application for summary judgment were not controversial between the parties. The written submissions for the plaintiff referred to the well-known authorities of Dey v Victorian Railways Commissioners [1949] HCA 1; 78 CLR 62, General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125, Theseus Exploration N.L. v Foyster [1972] HCA 41; 126 CLR 507 and Agar v Hyde [2000] HCA 41; 201 CLR 552. In Agar v Hyde, Gaudron, McHugh, Gummow and Hayne JJ (at [57]) describe the test as one requiring "a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way".
2. The preconditions in r 13.1 for an application for summary judgment have been complied with. There is "evidence of the facts on which the claim … is based" (r 13.1(1)(a)). In this regard there were tendered evidentiary statements by Mr Strange and Mr Turnbull and, on a limited issue relating to the negligence claim only, reports by three psychiatrists who had assessed the plaintiff. For the purpose of complying with r 13.1(1)(b) there was read an affidavit by Mr Strange dated 17 August 2017 as to his belief "that the defendant does not have a defence to any of the causes of action".

Evidentiary statements

1. The following factual account is derived from the evidentiary statement by Mr Strange. As will be seen, none of it is disputed in the evidentiary statement of the late Mr Turnbull, except that he claimed the incident occurred over 15 to 20 minutes whereas Mr Strange estimated 30 to 40 minutes. (Such a dispute is of no consequence in terms of liability.) There were no other witnesses able to give an account of the incident because of the remote location where it occurred.
2. On 29 July 2014, Mr Strange and Mr Turner, who were environment protection officers with the Office of Environment and Heritage, drove by a property at Croppa Creek (near Moree) in order to familiarise themselves with the area in advance of an inspection relating to illegal land clearing. They stopped on Talga Lane and alighted from their vehicle in order to collect evidence of burning vegetation. Mr Turnbull drove up and stopped his vehicle nearby. Mr Turnbull had been involved in previous disputes in relation to land clearing issues with the Office of Environment and Heritage and with Mr Turner in particular.
3. Mr Turnbull alighted from his vehicle with a rifle and fired a shot which struck Mr Turner in the chin. Mr Turnbull continued to fire shots from his rifle, ultimately striking Mr Turner three times. Mr Turner fell to the ground after the final shot. Mr Turnbull drove away from the scene. Mr Turner passed away soon after.
4. Mr Turnbull's primary focus was upon shooting Mr Turner, who was trying to take cover at various points around his work vehicle. Mr Strange pleaded with him to desist. Mr Strange's evidentiary statement includes the following relevant to the intentional torts pleaded: "46 Turnbull was around the front of the vehicle looking for Glen who was crouched down next to the vehicle. I was standing near the vehicle with a camera in my hand. I attempted to get closer to the vehicle but Turnbull pointed the rifle toward me and told me to move back and drop the camera which I was still holding in my left hand. 47 I tossed the camera to the side and Turnbull said words to the effect: 'Move back or you'll get one in the heart.' 48 I backed away from the vehicle. … 54 … I continued to plead with Turnbull to let us go. 55 Turnbull said words to the effect: 'No, you're not going anywhere.' … 58 Every time I saw him look away I tried to move forward toward the vehicle to be near Glen but he kept pointing the gun back at me and threatened to shoot me if I went any closer. 59 At one stage Turnbull pointed the gun directly at me and said: 'Don't move, I've told you get back or I will fucking shoot you too.' 60 Again, I retreated back. … 71 I continued to try and engage Turnbull and he would occasionally look at me but then always look away, trying to locate Glen. When Turnbull looked away, I would move forward. Turnbull would catch me moving in his peripheral vision and then point the gun at me, ordering me to get back. … 75 I tried to interject suddenly but he put the gun straight to my head and said: 'I fucking told you, I will fucking shoot you, now get back.' 76 At this stage, I seriously believed that he would shoot me if I tried to get to the car. That was really the first time I thought that I was going to die. 77 I moved back and continued to plead with him. … … 91 I continued to plead. Turnbull saw me move and pointed the gun back at me. I begged him to put the gun down. Glen then popped his head back up and Turnbull fired another shot in Glen's direction through the canopy. 92 I just kept pleading again and again for him to stop and let us go. Turnbull then fired another shot in Glen's direction. I heard the bullet travel through the air. 93 I think Glen had realised that Turnbull was getting closer and Glen said words like 'I can't do this anymore' and attempted to run from him, away from the vehicle, toward a tree line. 94 Turnbull raised his gun and shot Glen. I saw Glen drop to the ground. 95 After the final shot, Mr Turnbull said to me, words to the effect: 'You can go now. I'll be waiting at home for the police.' 96 Turnbull then got in his car and drove away. 97 The ordeal lasted about thirty to forty minutes."
5. The evidentiary statement by Mr Turnbull dated 14 March 2017 states in its entirety: "This statement made by me, Ian Robert Turnbull, contains the evidence I would give if called upon to do so in proceedings before the Supreme Court of New South Wales. I state: 1 I am the defendant in Supreme Court proceedings no. 2015/183692. 2 I am currently incarcerated in Long Bay Correctional Centre, 1300 Anzac Parade, Matraville, in the State of New South Wales. 3 I was born on 13 November 1934 and am presently 82 years old. 4 I refer to the statement of Robert Strange dated 15 August 2016, that has been served on my solicitors in these Supreme Court proceedings. In that statement, Mr Strange refers to the 'ordeal' on Talga Lane at Croppa Creek that occurred on the evening of 29 July, 2014, when I shot Glendon Turner and he died. At paragraph [97] of his statement, Mr Strange says that the ordeal lasted about thirty to forty minutes. I do not believe that to be correct; it was more likely to have occurred over about 15 to 20 minutes. The evidence at my trial from the GPS waypoints and photographs, the activation of the EPIRB and from telephone records showed the incident was of a shorter duration. 5 I had not met, nor had I ever spoken with Mr Strange before this incident. I did not know that he was with Mr Turner until I stopped my vehicle on Talga Lane and saw them together. During the ordeal, my focus was on Mr Turner. I had no intention of causing any harm, injury or death to Mr Strange. At the end, I recall telling him that he could go and that I would be waiting at home for the Police. 6 I regret any harm that I may have caused Mr Strange and I wish to apologise to him for this. As I say, it was not my intention to harm Mr Strange in any way, as I had not had any prior dealings or issues with him. Signed: Ian Robert Turnbull - 14 March, 2017."

The assault cause of action

1. In Croucher v Cachia [2016] NSWCA 132, Leeming JA (Beazley P and Ward JA agreeing) referred in two passages of his judgment to authoritative statements as to the tort of assault as follows: "[42] … There is a tortious assault where the act of a person causes another person reasonably to apprehend a threat of force or violence: see Barton v Armstrong [1969] 2 NSWR 451 at 455 and New South Wales v McMaster at [205]." "[99] … In addition to what was said in Barton v Armstrong, to which I have earlier referred, the elements of a civil assault were more elaborately stated by Sheller JA, with the agreement of Priestley and Heydon JJA, in Rixon v Star City Pty Ltd [2001] NSWCA 265; 53 NSWLR 98 at [56]-[58], in terms which emphasised the irrelevance of the defendant's intention to carry out the threat: 'A traditional definition of assault is 'an overt act indicating an immediate intention to commit a battery, coupled with the capacity of carrying that intention into effect'; see Clerk & Lindsell 12-12. The irrelevance of the intention to carry the battery into effect is demonstrated by the act of presenting an unloaded firearm in such circumstances that if it had been loaded its discharge would have been likely to cause injury. Such an act is an assault unless the person at whom it is pointed knows that it is empty; see generally Clerk & Lindsell 12-13. According to Fleming, The Law of Torts, 9th ed, at 31-32: 'Assault consists in intentionally creating in another person an apprehension of imminent harmful or offensive contact … there may be an assault without battery if the threat to inflict unlawful force is not in fact carried out … Since the gist of assault lies in the apprehension of impending contact, the effect on the victim's mind created by the threat is the crux, not whether the defendant actually had the intention or the means to follow it up. The intent required for the tort of assault is the desire to arouse apprehension of physical contact, not necessarily to inflict actual harm.' Proof of assault requires proof of an intention to create in another person an apprehension of imminent harmful or offensive contact; see, for example, Hall v Fonceca [1983] WAR 309. If the assault lies in creating an apprehension of impending contact, proof of the assault does not require proof of an intention to follow it up or carry it through.'"
2. In Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR 714 at 743D, Clarke JA stated "[I]t is not a necessary element of assault (and battery) that the defendant intended to injure the plaintiff".
3. It can been seen that there is no need for Mr Strange to establish that Mr Turnbull intended to cause injury or harm; simply that he intentionally created in Mr Strange an apprehension of imminent harmful or offensive contact. This is of some significance to the relevance of the claim in Mr Turnbull's evidentiary statement (at [5]) that he "had no intention of causing any harm, injury or death to Mr Strange" and (at [6]) that "it was not [his] intention to harm Mr Strange in any way".
4. In the Second Amended Defence, the defendant admits that Mr Turnbull acted with reckless disregard to Mr Strange's rights. The defendant does not admit (but does not deny) that Mr Strange reasonably apprehended the threat of immediate harm and offensive physical contact perpetrated by Mr Turnbull against Mr Strange's person. The defendant does not claim any matter that would defeat the claim of assault in the nature of consent or self-defence.

The false imprisonment cause of action

1. False imprisonment is an act by which a person directly causes (either intentionally or negligently) the total restraint of the liberty of another person for however short a time without lawful justification within an area defined by the tortfeasor: Halsbury's Laws of Australia at [415-395]. (In a footnote it is stated that there is no authority in Australia as to whether the tort may be committed through negligence, although it may be presumed).
2. The only intention necessary to be established is the intention to detain the plaintiff: Cowell v Corrective Services Commission of New South Wales at 743E (Clarke JA). Liability turns on intention to detain: Ruddock v Taylor [2003] NSWCA 262; 58 NSWLR 269 at [4] (Spigelman CJ). The successful appeal to the High Court in Ruddock v Taylor [2005] HCA 48; 222 CLR 612 was based upon issues presently irrelevant. In dissent, but uncontroversially on this point, Kirby J described the tort as follows (at [140]): "…Wrongful imprisonment is a tort of strict liability. Lack of fault, in the sense of absence of bad faith, is irrelevant to the existence of the wrong. This is because the focus of this civil wrong is on the vindication of liberty and reparation to the victim, rather than upon the presence or absence of moral wrongdoing on the part of the defendant. A plaintiff who proves that his or her imprisonment was caused by the defendant therefore has a prima facie case. At common law it is the defendant who must then show lawful justification for his or her actions." (Citations of authority omitted)
3. As to the nature and degree of the "imprisonment": "…what at least is certain is that a prisoner need not be placed under lock and key for the purposes of this tort. It is enough that his movements are simply constrained at the will of another. The constraint may be actual physical force, amounting to a battery, or merely the apprehension of such force, or it may be submission to a legal process." (Clerk & Lindsell on Torts, (21st ed 2014, Sweet & Maxwell) at [15-23]). (Citations omitted)
4. In the present case, I take the plaintiff to be relying upon an assertion that his movements were constrained at the will of and by the actions of Mr Turnbull.
5. Mr Strange's account includes that Mr Turnbull, while holding the rifle and sometimes pointing it at Mr Strange, said, "Move back or you'll get one in the heart"; he threatened to shoot Mr Strange if he went any closer; he pointed the gun at Mr Strange and said, "Don't move, I've told you get back or I will fucking shoot you too"; Mr Turnbull "would catch [Mr Strange] moving in his peripheral vision and then point the gun at [Mr Strange], ordering [him] to get back"; he "put the gun straight to [Mr Strange's] head and said: 'I fucking told you, I will fucking shoot you, now get back'; "Turnbull saw [Mr Strange] move and pointed the gun back at [him]". When Mr Strange pleaded with Mr Turnbull to "let [them] go", Mr Turnbull responded, "No, you're not going anywhere".
6. In his evidentiary statement Mr Turnbull did not deny pointing the gun at Mr Strange and making commands about his movements. Moreover, Mr Turnbull said he recalled that after firing the final shot at Mr Turner he said to Mr Strange that he could go; a further indication that up to that point Mr Strange had been under Mr Turnbull's restraint.
7. In relation to the cause of action of false imprisonment, the Second Amended Defence included an admission that Mr Turnbull deprived Mr Strange of his liberty. It is Mr Strange's case that the means by which Mr Turnbull did so was to put him in fear of suffering physical harm himself (his statement includes that at one stage he "seriously believed that [Mr Turnbull] would shoot me if I tried to get to the car … I thought that I was going to die"). In Mr Turnbull's evidentiary statement there is no denial of key features of the incident described by Mr Strange such as the pointing of the gun at him and the threats by Mr Turnbull to shoot him.

Submissions

1. Mr Romaniuk, senior counsel for the plaintiff, submitted that the pleaded defence and the evidentiary statements made it patently clear that there were no triable issues in relation to both of the intentional torts pleaded. There was no dispute about the facts necessary to be proved on the plaintiff's behalf. There had been no defence pleaded for the assault, such as consent, necessity (self-defence) or the like. Nor was authority, justification or consent pleaded in the defence for false imprisonment.
2. Mr Alexis resisted summary judgment on a number of bases. First, he submitted that there was a triable issue in relation to both of the pleaded intentional torts relating to Mr Turnbull's "intention". In this respect he referred to paragraphs 5 and 6 of Mr Turnbull's evidentiary statement wherein he stated: "I had no intention of causing any harm, injury or death to Mr Strange." And, "[I]t was not my intention to harm Mr Strange in any way..."
3. It was submitted that while "any harm" and "harm … in any way" might be a reference to physical harm, it could also be construed as a reference to harm that included mental harm. Accordingly, there was a triable issue in this respect. It was not a matter for the preferred construction to be determined on an application for summary judgment. (T16)
4. Secondly, it was submitted that while the facts set out in Mr Strange's evidentiary statement concerning the incident were, according to that of Mr Turnbull, "broadly … not in contest" (T16.49) it could not be assumed that everything that Mr Strange said would be accepted and "further facts may well emerge to properly and fully complete the context in which an assessment of the late Mr Turnbull's conduct will ultimately be made" (T17.8). When pressed as to what "further facts" might emerge, Mr Alexis referred to the precise location where each of the three men were during the incident, which was a matter that was not clear from the evidentiary statements. This would emerge in cross-examination of Mr Strange. It was said that through such cross-examination, with the benefit of statements made on previous occasions ("not that there will likely be much controversy of them"), that "the full picture will emerge" (T18.5).
5. A related issue was said to be whether Mr Turnbull had any intention to cause relevant mental harm to Mr Strange or whether that was "very much collateral" when his absolute focus appeared to have been upon Mr Turner (T20.20).
6. Mr Alexis confirmed (and it is apparent from Mr Turnbull's evidentiary statement) that there was no dispute that Mr Turnbull said things to Mr Strange as the latter claimed, such as "Move back or you'll get one in the heart" and "Don't move, I've told you get back or I will fucking shoot you too" (T17)
7. Mr Alexis submitted that there would be an issue about whether Mr Turnbull had the capacity to form the intention to put Mr Strange in fear and control his movements so that he could not intervene or otherwise prevent what was occurring between Mr Turnbull and Mr Turner. Mr Alexis indicated that a report by Professor Greenberg, psychiatrist, had been commissioned and would be available in the coming weeks. He gave evidence at Mr Turnbull's criminal trial in support of an unsuccessful endeavour to make out the partial defence to murder in s 23A of the Crimes Act 1900 (NSW) of substantial impairment by abnormality of mind. Whether that defence failed on the subjective limb in s 23A(1)(a) or the objective limb in s 23A(1)(b) is unknowable given the inscrutability of the jury's verdict.
8. Mr Alexis said that he was instructed that Professor Greenberg had "come to a view on the question of the late Mr Turnbull's intention having regard to what he diagnosed as Mr Turnbull's underlying psychiatric condition" (T18.30). It was said that this would bear upon the question as to whether or not there was a capacity to form an intention to harm (in the relevant sense) Mr Strange.
9. A further submission advanced by Mr Alexis was that the issue of intention in relation to the intentional torts was interwoven with one that would be raised at a hearing for the assessment of damages. There is an issue between the parties as to whether the provisions of s 3B(1)(a) of the Civil Liability Act 2002 (NSW) applies. That is, there is an issue as to whether there was an intentional act by Mr Turnbull that was done with intent to cause injury to Mr Strange. Accordingly, the issue of Mr Turnbull's intention is a matter that is going to be litigated at a damages hearing and there was a concern that summary judgment entered now might foreclose the defendant's opportunity to ventilate this by way of issue estoppel (T20).

Consideration

1. It is necessary to be clear about the term "intention" when considering the submissions about whether there is a triable issue about it in relation to the causes of action of assault and false imprisonment. On the facts of the case, Mr Turnbull deliberately causing Mr Strange to fear being shot is sufficient for assault. In relation to false imprisonment, deliberately depriving Mr Strange of his liberty is sufficient.
2. The prospect that Mr Turnbull, by his claim in his evidentiary statement that he did not intend to harm Mr Strange in any way, may have been speaking of both physical and mental harm, seems rather remote. But more importantly, the fact that there is no dispute that he pointed the rifle at Mr Strange a number of times and threatened to shoot him renders it a seemingly strong inference that he intended to cause a fear of being shot.
3. It may be accepted that Mr Turnbull's primary focus was to shoot and kill Mr Turner. It seems clear that he had no desire to injure or kill Mr Strange (because if he did he could easily have attempted to do so). But the uncontested facts are that during the course of giving effect to his primary goal relating to Mr Turner it became necessary for Mr Turnbull to prevent interference by Mr Strange. It is uncontested that to do so he did things that were specifically directed towards Mr Strange when necessary. What he did was, on the face of it, deliberate and, if established, this would make out both an assault and a deprivation of Mr Strange's liberty.
4. The contention that further facts and a "full picture" may emerge takes the avoidance of summary judgment nowhere. There was a failure to articulate anything relevant in this respect. The prospect of the precise whereabouts of each of the three men during the incident being clarified will not change the fact (again, undisputed) that Mr Turnbull pointed the gun at Mr Strange a number of times and threatened to shoot him, thereby compelling him through fear not to physically interfere in Mr Turnbull's endeavour to kill Mr Turner.
5. The prospect of an expert psychiatric opinion becoming available that might bear upon Mr Turnbull's state of mind must be acknowledged. The prospect of it bearing upon his state of mind in some way relevant to the quite minimal requirement for the plaintiff to establish the deliberateness of Mr Turnbull's actions directed towards Mr Strange seems at the moment to be remote. In the submissions for the plaintiff, this contention was described as a "last moment ambush" of the present application (T21.25). There appears to be some force in this as there is presently nothing in the pleaded defence that raises an issue of impairment.
6. The assertion that the issue of intent for the two relevant causes of action was "interwoven" with the intent issue that will be raised at a damages assessment hearing is of doubtful relevance. An intention to injure for the purposes of s 3B(1)(a) of the Civil Liability Act is not a component of the tort of false imprisonment, although it is an aspect of the assault claim: see Dominic Villa, Annotated Civil Liability Act 2002 (NSW), (2nd ed 2013, Lawbook Co.) at 57. Given it is not a component of one of the claims, any negative impact that summary judgment might have for the defendant at a damages assessment hearing is not clear.

Conclusion

1. In the end, I am not persuaded that summary judgment should be entered in respect of the intentional torts. While I have very grave misgivings about the viability of a defence to the intentional torts, it is not such a clear case that the defendants should be deprived of the opportunity to litigate the issues in the usual way: Agar v Hyde at [57]. I do not regard this as being a sufficiently clear case of there being no triable issue concerning the deliberateness of Mr Turnbull's actions vis-à-vis Mr Strange. There is the argument, albeit seemingly tenuous, about how what he said in his evidentiary statement regarding his intentions towards Mr Strange should be construed. There is also the prospect, however unlikely it may seem at present, of there being expert evidence bearing upon the issue. In short, despite misgivings, I am unable to say with certainty that there is no substance in the defendant's prospective case on this issue.
2. It is necessary to be mindful of the "extreme care" that is required because "it is a very serious matter to deny to a litigant the right to have his or her case heard at trial": Spellson v George (1992) 26 NSWLR 666 at 678E (Young AJA). In Spencer v The Commonwealth [2010] HCA 28; 241 CLR 118, French CJ and Gummow J (at [24]) referred to the need for "caution" in the "exercise of powers to summarily terminate proceedings". "Exceptional caution" was the term used in Webster v Lampard [1993] HCA 57; 177 CLR 598 at 603 (Mason CJ, Deane and Dawson JJ).
3. A further matter of which I am mindful is that the triable issue is one that is unlikely to require the devotion of substantial resources in preparation for, and at, a final hearing of the matter; certainly so in comparison to those relevant to the assessment of damages.
4. In accordance with the agreed position of the parties there will be summary judgment on the claim in negligence with damages to be assessed.

Orders

1. I make the following orders: 1. Pursuant to rule 13.1 of the Uniform Civil Procedure Rules, judgment for the plaintiff with respect to the claim made in the Second Further Amended Statement of Claim based upon negligence with damages to be assessed. 2. Dismiss the plaintiff's application for summary judgment in respect of assault and false imprisonment.
2. I will hear the parties as to costs.

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