Citation : CUNNINGHAM -v- TRAYNOR [2016] WADC 168

Torts - Battery - Misfeasance in public office - False imprisonment - Malicious prosecution - Malicious conduct of police officers - Non-malicious conduct of police officers - Police Act 1892 (WA) - Section 137(5) - Solidary liability

Damages - Compensatory damages - Aggravated damages - Exemplary damages - Whether damages ought to have been apportioned

Costs - Whether costs ought to have been apportioned

Police Act 1892 (WA), s 137, s 138

A v New South Wales [2007] HCA 10; (2007) 230 CLR 500

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27

Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568

Attorney-General for New South Wales v Perpetual Trustee Co Ltd [1952] HCA 2; (1952) 85 CLR 237

Balog v Independent Commission Against Corruption [1990] HCA 28; (1990) 169 CLR 625

Barisic v Devenport [1978] 2 NSWLR 111

Baume v The Commonwealth [1906] HCA 92; (1906) 4 CLR 97

Baxter v Obacelo Pty Ltd [2001] HCA 66; (2001) 205 CLR 635

Bell v The State of Western Australia [2004] WASCA 205; (2004) 28 WAR 555

British American Tobacco Australia Ltd v The State of Western Australia [2003] HCA 47; (2003) 217 CLR 30

Bull v Attorney-General (NSW) [1913] HCA 60; (1913) 17 CLR 370

Canterbury Bankstown Rugby League Football Club Ltd v Rogers [1993] Aust Torts Reports 81-246

Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44

CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384

Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427

Crampton v Nugawela [1996] NSWSC 651; (1996) 41 NSWLR 176

Cunningham v Traynor [2016] WADC 168

Darcy v State of New South Wales [2011] NSWCA 413

Enever v The King [1906] HCA 3; (1906) 3 CLR 969

Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1

Hall v Bonnett [1956] SASR 10

Haskins v Commonwealth [2011] HCA 28; (2011) 244 CLR 22

Henry v Thompson [1989] 2 Qd R 412

Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10; (2013) 247 CLR 613

IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1

Jarratt v Commissioner of Police for NSW [2005] HCA 50; (2005) 224 CLR 44

Johnstone v Stewart [1968] SASR 142

Khoury v Government Insurance Office (NSW) [1984] HCA 55; (1984) 165 CLR 622

Lackersteen v Jones (1988) NTSC 60; (1988) 92 FLR 6

Lamb v Cotogono [1987] HCA 47; (1987) 164 CLR 1

Little v The Commonwealth [1947] HCA 24; (1947) 75 CLR 94

Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522

New South Wales v Ibbett [2006] HCA 57; (2006) 229 CLR 638

Nilon v Bezzina [1988] 2 Qd R 420

Northern Territory of Australia v Mengel [1995] HCA 65; (1995) 185 CLR 307

Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd [1986] HCA 34; (1986) 160 CLR 626

Pollack v Volpato [1973] 1 NSWLR 653

Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277

Ramsey v Larsen [1964] HCA 40; (1964) 111 CLR 16

Rookes v Barnard [1964] UKHL 1; [1964] AC 1129

State of New South Wales v Briggs [2016] NSWCA 344; (2016) 95 NSWLR 467

State of New South Wales v Radford [2010] NSWCA 276; (2010) 79 NSWLR 327

State of New South Wales v Williamson [2011] NSWCA 183

State of South Australia v Kubicki (1987) 46 SASR 282

SZTAL v Minister for Immigration and Citizenship [2017] HCA 34; (2017) 347 ALR 405

The Commonwealth v Mewett [1997] HCA 29; (1997) 191 CLR 471

The State of Western Australia v Cunningham [2017] WASCA 119

Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664

Thompson v Australian Capital Television Pty Ltd [1996] HCA 38; (1996) 186 CLR 574

Tickle Industries Pty Ltd v Hann [1974] HCA 5; (1974) 130 CLR 321

Trobridge v Hardy [1955] HCA 68; (1955) 94 CLR 147

Uren v John Fairfax & Sons Ltd [1966] HCA 40; (1966) 117 CLR 118

Watkins v State of Victoria [2010] VSCA 138; (2010) 27 VR 543

Whitfield v De Lauret & Co Ltd [1920] HCA 75; (1920) 29 CLR 71

XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd [1985] HCA 12; (1985) 155 CLR 448

1. This is an appeal against a decision of Davis DCJ in Cunningham v Traynor[1] (primary decision). By that decision, the primary judge upheld various claims in tort by the first respondent (Dr Cunningham) and the second respondent (Ms Atoms) against the appellant (State), and against certain members of the Western Australia Police, being the third respondent (Officer Traynor), the fourth respondent (Officer Clark) and the fifth respondent (Mr Caldwell). Mr Caldwell is no longer a police officer.[2] Officer Traynor, Officer Clark and Mr Caldwell have cross-appealed in this matter.

1. As at 1 November 2008, Dr Cunningham and Ms Atoms were engaged, and had recently moved from New South Wales to Western Australia and were residing in the Fremantle area.[4] Dr Cunningham took up a position lecturing at the law school at the University of Western Australia, and Ms Atoms commenced study and work at Murdoch University. She had also recently been offered employment as a community engagement officer at the Water Corporation.[5]

1. On the night of 1 November 2008, Dr Cunningham and Ms Atoms rode their bicycles into the centre of Fremantle for dinner to celebrate Dr Cunningham's birthday and Ms Atoms' offer of employment. They each consumed one small bottle of beer at dinner.[6]
2. During the course of their meal, they arranged to meet a friend afterwards at Little Creatures Brewery in Fremantle. While at Little Creatures, both Ms Atoms and Dr Cunningham had another beer.[7]

1. On 2 November 2008, just prior to 1.00 am, Dr Cunningham and Ms Atoms were walking back from Little Creatures Brewery, with Ms Atoms' friend, to where they had parked their bicycles in order to go home. On their way, they noticed three young people (two men and one woman) sitting on the low wall of a garden bed which ran along the outside of the Esplanade Hotel in Essex Street.[8]
2. Dr Cunningham and Ms Atoms observed one of the men fall backwards into the bushes in the garden bed. The other man went to help him but was either pulled or fell into the garden bed himself. The first man got out, but the second remained in the garden bed.[9]
3. Despite being strangers, Dr Cunningham and Ms Atoms stopped to help the group of young people. Ms Atoms initially stood on the footpath giving directions. Dr Cunningham, with the assistance of another person who arrived on the scene, tried to pull the man out of the garden bed. Ms Atoms assisted by grabbing his legs. Dr Cunningham, however, was then pushed into the garden bed by another male who subsequently went into the garden bed himself. At this time, Ms Atoms moved back to the footpath with her friend and stood there watching.[10]
4. Officers Traynor and Clark then arrived on the scene. Officer Traynor spoke to Ms Atoms. Officer Clark, after having attended to the other people at the scene, joined Ms Atoms and Officer Traynor.[11]
5. There was a dispute before the primary judge about what was discussed or said between Ms Atoms and the two police officers. It was alleged against Ms Atoms that she said, 'Haven't you got anything better to f... do. Go and arrest some proper criminals [sic]'.[12] It was alleged that these words, and the way they were said, constituted disorderly behaviour. Ms Atoms denied that she swore or said these words.[13]
6. The judge found that Ms Atoms did not use these words at the scene.[14] Rather, the judge found that Officer Traynor accused Ms Atoms of actually having been in the bushes. He first mentioned that she would have to pay for damage to the bushes and then told her that he had been watching her jump in and out of the bushes. Ms Atoms spoke up for herself and explained to Officer Traynor that she had been stopping to help and had not been in the bushes. She was not angry or aggressive when she spoke to Officer Traynor. She was calm and composed. Officer Traynor then said something to Ms Atoms about having to get out of Fremantle. Ms Atoms responded by telling Officer Traynor that she lived in Fremantle and did not understand. At this stage, the two officers had in mind to issue Ms Atoms a move on notice, motivated by the fact that she had spoken up and asserted her innocence, although they did not ask for her name and address to do so.[15]

1. Ms Atoms, not understanding what she was to do, tried to walk away from the officers. This irritated Officer Traynor, who grabbed Ms Atoms by the arm. Ms Atoms told Officer Traynor that he was scaring her and she did not understand him because he was telling her to go, but not letting her leave. Officer Traynor released his hold on Ms Atoms and said something which reinforced to Ms Atoms that she needed to leave, and so she tried to leave again.[16]
2. Officer Traynor then aggressively and forcefully grabbed Ms Atoms' arm a second time. Ms Atoms told Officer Traynor that he was hurting her and asked him to let her go. With this second grab, Ms Atoms was detained and was clearly not free to leave.[17]

Officers Traynor and Clark arresting Dr Cunningham and taking him to the police van

1. During this time, Dr Cunningham had gotten out of the garden bed and walked up to the two officers and Ms Atoms.[18] He identified himself to Officer Traynor as a solicitor and said, 'I have one question. Is she subject to arrest or a move on order?'[19] CCTV footage showed Officer Traynor holding Dr Cunningham's left arm, and that Officer Clark held Dr Cunningham's right arm or side.[20] CCTV footage showed that Dr Cunningham was turned around by Officer Traynor who let go of Ms Atoms as he did so.[21] Officer Traynor let go of Dr Cunningham and then Officer Clark took hold of both Dr Cunningham's arms and put them behind his back.[22] This is when Dr Cunningham was arrested.[23] Officers Traynor and Clark then pushed Dr Cunningham from the footpath onto the road on Essex Street.[24] Neither Officer Traynor nor Officer Clark answered Dr Cunningham's inquiry.[25]
2. What occurred on the road on Essex Street was not recorded on CCTV. It was not disputed, however, that Dr Cunningham was pushed towards where Officers Traynor and Clark had parked their police van. He had at least one handcuff on one of his arms, and was kicked with what was called a 'knee strike'.[26]
3. Ms Atoms followed Dr Cunningham as he was being pushed from the footpath and taken to the police van. There was an issue at first instance as to what she did as she followed. Her evidence was that she placed her hands on Dr Cunningham's back. Officer Clark's evidence was that she had grabbed hold of him (Officer Clark), 'jumped' on his (Officer Clark's) back, and subsequently picked up the handcuffs he had dropped and threw them across the street.[27] Officer Clark's evidence that Ms Atoms grabbed his arm and jumped on his back was the subject of a counterclaim made by Officer Clark, which was ultimately rejected by the judge.[28]

1. CCTV footage then showed that Officer Clark pushed Ms Atoms away.[29] Ms Atoms was pushed away at a point in time after she had been let go by Officer Traynor (see [13] above), and before the tasering event referred to below.[30]

1. At around 12.58 am, following unsuccessful attempts to get Dr Cunningham to go to ground, Officer Traynor made a call for assistance. Various officers responded, including Mr Caldwell. A few minutes later, Officer Traynor radioed again to say '[w]e have enough units here, you can cancel any further'.[31]

Mr Caldwell Tasering Ms Atoms and Dr Cunningham

1. Upon his arrival at the scene in Essex Street, Mr Caldwell tasered Ms Atoms once and then Dr Cunningham once. Both Dr Cunningham and Ms Atoms dropped to the ground. Mr Caldwell had used the taser's 'drive stun mode', which involves physically placing the power handle against a person's body. This causes temporary uncontrollable contraction of the muscle tissue, resulting in physical incapacitation of the person.[32]

After the tasering - arrest of Ms Atoms, removal to police station and charges laid

1. After the tasering, Ms Atoms was arrested.[33] She, and Dr Cunningham, were handcuffed, picked up from the road surface and placed in the back of the police van by unknown police officers.[34] They were taken to the Fremantle Police Station where they were processed. Dr Cunningham was brought into the lock-up at 1.11 am. His handcuffs were removed and he was placed into a holding cell. Ms Atoms was brought in at around 1.22 am.[35]
2. Both Ms Atoms and Dr Cunningham were charged with the offence of obstructing a public officer in the performance of the officer's functions contrary to s 172(2) of the Criminal Code (WA). They were charged at around 2.00 am, were granted bail shortly after and signed their bail papers at around 2.08 am and 2.09 am.[36]
3. The lock-up footage showed that Ms Atoms left the lock-up at 2.10 am, and Dr Cunningham left at 2.13 am.[37]

1. On the morning of 2 November 2008, Ms Atoms and Dr Cunningham returned to Fremantle Police Station to speak to the Sergeant in charge on the night before (Sergeant Leahy), in an unsuccessful attempt to get the police to apologise and withdraw the charges.[38]
2. On 4 November 2008, Officer Traynor sent a draft of his witness statement to Officer Clark, and asked whether there was anything else he needed to add or whether there was anything he should take out. Also on 4 November 2008, Officer Clark prepared his own witness statement, a statement of material facts, and a prosecution brief which he sent to Sergeant Leahy. Each of the officers then witnessed each other's written statements, which bear the date 4 November 2008. Finally, a prosecution notice for Dr Cunningham and Ms Atoms was produced and dated 4 November 2008.[39]
3. It followed that Officer Clark was the investigating officer who initiated and maintained the charges against Dr Cunningham and Ms Atoms.[40]

The hearing and dismissal of the criminal charges

1. The trial of the criminal charges against Ms Atoms and Dr Cunningham was originally listed to take place on 20 July 2009, but it was adjourned because there were issues raised as to the adequacy of disclosure by the prosecution. The charges were eventually heard in the Magistrates Court on 29 April 2010 and dismissed.[41]
2. The circumstances of the hearing and dismissal of the charges, are that the prosecutor at the trial, who was not Officer Clark:[42]

(a) stated that he would call two witnesses, being Officers Clark and Traynor, and play the CCTV footage;

(b) agreed that the hearing would take about two days;

(c) called Officer Clark who gave evidence and was cross-examined;

(e) after the evidence of Officer Clark and the playing of the CCTV footage, elected not to call any further evidence in the case; and

(f) after counsel for Dr Cunningham and Ms Atoms had made a no case submission, made no submissions opposing the application.

1. Following this, the prosecution against Dr Cunningham and Ms Atoms, in effect, collapsed.[43]

1. Dr Cunningham and Ms Atoms commenced proceedings in the District Court against Officer Traynor, Officer Clark, Mr Caldwell and the State. Their pleaded case is set out below.

1. Ms Atoms alleged that police officers wrongly, and without lawful excuse, committed battery of her as follows:
   1. By Officer Traynor on the first occasion when he grabbed her wrist, to stop her moving.[44]
   2. By Officer Traynor on the second occasion when he grabbed her, until he let her go when he took hold of Dr Cunningham.[45]
   3. By Officer Clark when he subsequently grabbed and pulled her towards him, and then pushed her away.[46]
   4. By two police officers (other than Traynor and Clark) grabbing her wrists and forcing her arms up her back, and holding them, after Officer Traynor had made the call for police assistance.[47]
   5. By Mr Caldwell tasering Ms Atoms.[48]
   6. By unknown police officers picking her up, roughly leading her and placing her in the police van, in the course of which she was dropped and 'impacted the road'.[49]
2. Ms Atoms claimed damages for each of the pleaded batteries.[50]

1. Ms Atoms alleged that she was wrongfully imprisoned and deprived of her liberty by police officers: [51]

(a) for the period starting from when Officer Traynor grabbed her a second time until he let her go when he took hold of Dr Cunningham; and

(b) for the period commencing with the two unknown police officers grabbing her wrists and forcing her arms up her back and holding them, prior to her being tasered,[52] and ending with her release from the Fremantle police station at about 2.00 am on the morning of 2 November 2008.

1. Ms Atoms alleged that the State was liable in respect of her false imprisonment. There was no express plea for exemplary damages in that regard.[53]

Misfeasance in public office by Officer Traynor with respect to Ms Atoms

1. Ms Atoms alleged that Officer Traynor engaged in misfeasance in public office causing her injury by engaging in the conduct of grabbing Ms Atoms on the first occasion and then grabbing her on the second occasion, up until the point when he let her go when he took hold of Dr Cunningham. Ms Atoms claimed damages, including exemplary damages.[54]

Misfeasance in public office by Mr Caldwell in relation to Ms Atoms

1. Ms Atoms alleged that by tasering her, Mr Caldwell engaged in misfeasance in public office. Ms Atoms claimed damages, including exemplary damages.[55]

Malicious prosecution of Ms Atoms by Officer Clark

1. Ms Atoms alleged that Officer Clark maliciously and without reasonable cause prosecuted Ms Atoms, for which she claimed damages, including exemplary damages.[56]

1. Dr Cunningham alleged that police officers wrongly, and without lawful excuse, committed battery of him as follows:
   1. By Officer Clark when he first grabbed Dr Cunningham's right arm, with the battery continuing up to the point in time when Dr Cunningham fell to the ground after being tasered.[57]
   2. By Officer Traynor when he first grabbed Dr Cunningham's left arm, with the battery continuing right up to the time when Dr Cunningham fell to the ground after being tasered.[58]
   3. Mr Caldwell tasering him.[59]
   4. When two unknown police officers picked him up from the ground, roughly leading him and placing him in the police van.[60]
2. Dr Cunningham claimed damages for each of the pleaded batteries.[61]

1. Dr Cunningham alleged that he was wrongfully imprisoned and deprived of his liberty by police officers, starting from the period when Officer Clark first grabbed him, and ending with his release from the Fremantle police station at about 2.00 am on the morning of 2 November 2008.[62]
2. Dr Cunningham alleged that the State was liable to him in respect of his false imprisonment. There was no express plea for exemplary damages in that regard. [63]

Misfeasance in public office by Officers Traynor and Clark in relation to Dr Cunningham

1. Dr Cunningham alleged that each of Officers Traynor and Clark engaged in misfeasance in public office causing Dr Cunningham injury when each Officer grabbed his arm, right up to the time when Dr Cunningham fell to the ground after being tasered. Dr Cunningham claimed damages, including exemplary damages.[64]

Misfeasance in public office by Mr Caldwell in relation to Dr Cunningham

1. Dr Cunningham alleged that by tasering Dr Cunningham, Mr Caldwell engaged in misfeasance in public office, and Dr Cunningham claimed damages, including exemplary damages.[65]

Malicious prosecution of Dr Cunningham by Officer Clark

1. Dr Cunningham alleged that Officer Clark maliciously and without reasonable cause prosecuted him, for which he claimed damages, including exemplary damages.[66]

The respondents' defence and Officer Clark's counterclaim

1. Officer Traynor, Officer Clark, Mr Caldwell and the State all denied liability, and claimed that all police officers acted lawfully and fairly. Officer Clark also counterclaimed for damages on the basis of two alleged assaults and battery by Ms Atoms on him,[67] for grabbing his arm and for 'jumping' on his back.[68]

1. The primary judge found in favour of Dr Cunningham and Ms Atoms, and dismissed Officer Clark's counterclaim. There are issues in the appeal as to the proper construction of the judge's reasons. The findings made by her Honour, on the proper construction of her reasons as a whole, are set out in [77] - [97] below. At this point, it is convenient to note the following matters arising out of her Honour's reasons.
2. Her Honour said:[69]

[I]t does seem to me that I do need to make a separate determination of the damages for each tort, because of the provisions of s 137 of the Police Act and the submissions made to me ... that if one of the first three defendants was found to have engaged in battery and misfeasance in public office because of a finding of malice, the State's position is, although not pleaded, that judgment should not be entered against the State because of the existence of malice.

1. In that regard, the judge made the findings referred to below, and also said that a similar apportionment should be applied to special damages.[70]

1. Her Honour found that:
   1. Officer Traynor should pay $1,000 for general damages for the (malicious) battery involving the two occasions of grabbing her wrist.[71]
   2. Ms Atoms was also entitled to general damages for the other torts in the total sum of $135,000.[72]
   3. The $135,000 figure for general damages should be apportioned as to:[73]

(a) the (malicious) battery by Mr Caldwell for tasering: $30,000;

(b) the malicious prosecution by Officer Clark: $15,000;

(c) the (non-malicious) battery by Officer Clark in pushing her away: $30,000;

(d) the (non-malicious) battery of handling and handcuffing her by the unknown officers after tasering: $30,000; and

1. The State was liable for the torts referred to in pars (c), (d) and (e) above.[74]
2. The judge awarded Ms Atoms aggravated damages of $20,000[75] and, in addition, exemplary (punitive) damages of $10,000.[76]
3. Her Honour summarised Ms Atoms' damages as follows:[77]

Summary of Ms Atoms damages

General damages $136,000.00

Aggravated damages $20,000.00

Exemplary damages $10,000.00

Past expenses $12,978.50

Future expenses $174,665.00

Past loss of earning capacity $334,520.11

Future loss of earning capacity $336,658.50

Total $1,024,822.11

1. The judge found that:
   1. Dr Cunningham was entitled to general damages of $75,000.[78]
   2. The general damages of $75,000 should be apportioned as to:[79]

(a) the (malicious) batteries by Officers Traynor and Clark up to the time of tasering: $10,000;

(b) the malicious battery by Mr Caldwell in tasering: $12,500;

(c) the (non-malicious) battery involving handling after tasering: $2,500;

(e) the malicious prosecution by Officer Clark: $25,000.

1. The State was liable for the torts referred to in pars (c) and (d) above.[80]
2. Her Honour awarded Dr Cunningham aggravated damages of $10,000[81] and, in addition, exemplary (punitive) damages of $10,000.[82]
3. Her Honour summarised Dr Cunningham's damages as follows:[83]

General damages $75,000

Aggravated damages $10,000

Exemplary damages $10,000

Past expenses $5,874.10

$600.00

Future expenses $8,830.00

Total $110,304.10

1. Following the delivery of reasons on 9 December 2016, there was a debate between the parties as to the appropriate final orders. That debate was adjourned to 15 December 2016.[84]
2. The State's position was that, having regard to the apportionment process undertaken by the primary judge in her Honour's reasons, Ms Atoms should be awarded damages against the State in the sum of $675,783.37, based on an approximate 66% - 67% contribution to Ms Atoms' general damages in respect of Officer Clark's battery, the battery after tasering, and the false imprisonment, 66.18% contribution for aggravated damages and 66.67% contribution respectively for past special damages, future special damages and loss of earning capacity.[85]
3. In the case of Dr Cunningham, he should be awarded damages against the State in the sum of $36,558.17. This sum is based (in general terms) on a 36.67% contribution to Dr Cunningham's general damages in respect of the battery after tasering and false imprisonment, and a 36.67% contribution respectively for aggravated damages, past special damages and special damages. The State's proposed orders were set out in a minute of proposed orders dated 12 December 2016.[86]
4. At the hearing on 15 December 2016, the judge rejected the State's approach to apportionment. In extempore oral reasons, her Honour said that certain authorities referred to by counsel for Dr Cunningham and Ms Atoms had not been drawn to her Honour's attention when preparing the written reasons, and said:[87]

These authorities ... were not referred to me during the course of the trial and this was not a matter drawn to my attention during the trial; I proceeded on the basis of what counsel had advised me at - which I recorded at paragraph 836 of my reasons for judgment.

It seems to me that this is not the correct legal position. I would be making a fundamental error if I entered judgment separately against each of the defendants as suggested to me by the State. In particular, I do not consider that in entering one judgment against all defendants as suggested in the plaintiffs' minutes that this offends either section 137 or 138 of the Police Act.

I accept what is set out in paragraphs 14 to 16 of the plaintiffs' written submissions. In my view, the plaintiffs are entitled to judgment against all the defendants. The apportionment that I have made is a matter of contribution between the defendants so the defendants can deal between themselves as to the appropriate apportionment.

1. In relation to costs, her Honour said:[88]

I don't propose to apportion the costs for two reasons.

Firstly, the reasons I've already given about making separate judgments against each of the defendants and secondly, the issue of costs is, in my view, quite a different matter and I need to take into account the way this matter was run at trial and it was really a joint offensive, if I can call it that, against the plaintiffs by the defendants.

There was much cooperation between them and the - for example, the matter - the State dealt with all matters of damages and there was - and spoke for all defendants in relation to damages. So it's, in my view, appropriate that there be no apportionment of costs.

1. The final orders made by her Honour were in the following terms:
   1. There be judgment for [Dr Cunningham] against:

(a) [Officer Traynor, Officer Clark, Mr Caldwell and the State (collectively the defendants)] in the sum of $99,704.10;

(b) [Officer Traynor, Officer Clark and Mr Caldwell] in the further sum of $10,000 by way of exemplary damages; and

(c) [Officer Clark] in the further sum of $600.

(a) all defendants in the sum of $20,000;

(b) [Officer Traynor] in the further sum of $1,000;

(c) [Officer Clark, Mr Caldwell and the State] in the further sum of $993,822.11; and

(d) [Officer Traynor, Officer Clark and Mr Caldwell] in the further sum of $10,000 by way of exemplary damages.

1. [Officer Clark's] counterclaim is dismissed.
2. The defendants pay [Dr Cunningham's and Ms Atoms'] costs of the action to be taxed if not agreed, such costs to be taxed as one set of costs for which the defendants are to be jointly and severally liable.

The grounds of appeal and the State's case on the appeal

1. The State relies on s 137(5) of the Police Act 1892 (WA), and challenges the judge's findings of joint liability to pay compensatory and/or aggravated damages in circumstances where her Honour also made findings of malice.
2. The full text of s 137 of the Police Act is set out later (see [98] below). At this stage it is convenient to record that s 137(5) provides:

The Crown is liable for a tort that results from -

(a) anything done by a member of the Police Force, 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;

(b) anything done by a person, without corruption or malice, in assisting a member of the Police Force who is performing or purporting to perform the functions of a member of the Police Force, whether or not under a written or other law.

1. Grounds 1, 2 and 3 relate to Dr Cunningham. These grounds are to the following effect:[89]
   1. Contrary to s 137(5) of the Police Act, the judge erred in law in holding the State jointly liable with Officer Traynor, Officer Clark and Mr Caldwell to pay compensatory damages, after having found that Officer Traynor acted with malice against Dr Cunningham in committing:

(b) the first act of false imprisonment with Officer Clark.

1. Contrary to s 137(5) of the Police Act, the judge erred in law in holding the State jointly liable with Officer Traynor, Officer Clark and Mr Caldwell to pay compensatory damages after having found that Officer Clark acted with malice against Dr Cunningham in committing:

(c) the first act of false imprisonment with Officer Traynor.

1. Contrary to s 137(5) of the Police Act, the judge erred in law in holding the State jointly liable with Officer Traynor, Officer Clark and Mr Caldwell to pay compensatory damages after having found that Mr Caldwell acted with malice against Dr Cunningham in committing the tort of misfeasance in public office.

1. Grounds 4, 5 and 6 relate to Ms Atoms. These grounds are to the following effect:[90]
   1. Contrary to s 137(5) of the Police Act, the judge erred in law in holding the State jointly liable:

(a) with Officer Clark and Mr Caldwell to pay compensatory damages; and

(b) with Officer Traynor, Officer Clark and Mr Caldwell to pay aggravated damages,

after having found that Officer Traynor acted with malice against Ms Atoms in committing the tort of misfeasance in public office and the first act of false imprisonment.

1. Contrary to s 137(5) of the Police Act, the judge erred in law in holding the State jointly liable:

(a) with Officer Clark and Mr Caldwell to pay compensatory damages; and

(b) with Officer Traynor, Officer Clark and Mr Caldwell to pay aggravated damages,

after having found that Officer Clark acted with malice against Ms Atoms in committing the tort of malicious prosecution and the tort of battery.

1. Contrary to s 137(5) of the Police Act, the judge erred in law in holding the State jointly liable:

(a) with Officer Clark and Mr Caldwell to pay compensatory damages; and

(b) with Officer Traynor, Officer Clark and Mr Caldwell to pay aggravated damages,

after having found that Mr Caldwell acted with malice against Ms Atoms in committing the tort of misfeasance in public office.

1. Ground 7 relates to costs:[91]
   1. The judge erred in law in holding the State jointly and severally liable with Officer Traynor, Officer Clark and Mr Caldwell for Dr Cunningham's and Ms Atoms' entire costs of the action when the State was not liable for the malicious acts of Officer Traynor, Officer Clark and Mr Caldwell pursuant to s 137(5) of the Police Act.

1. The State says, in effect, that on its proper construction, the effect of s 137(5) of the Police Act is that the State is only 'answerable for damage caused by' torts committed by police officers, without malice or corruption, in the performance of their functions as a member of the Police Force.[92] Further, while the State accepts that itself, Officer Traynor, Officer Clark and Mr Caldwell are several and concurrent tortfeasors, it says that the general principle of solidary liability must give way to s 137(5) of the Police Act.[93] That is, s 137(5) operates to make the State liable only for the proportion of damage caused by those acts done without corruption or malice. As a result, where police officers have acted with malice, s 137(5) requires that damage caused by acts done with malice be apportioned from damage caused by acts done without malice. It says a separate judgment should be given against the State in the apportioned sum.[94]
2. The State relied on the case of Watkins v State of Victoria[95] in support of its contention that s 137 of the Police Act overrides the general principle of solidary liability. The State's submissions on the meaning of 'liable' in s 137(5) of the Police Act are set out in detail in [127] below.
3. The State says that the primary judge made findings of fact that Officer Traynor, Officer Clark and Mr Caldwell acted with malice as follows:[96]
   1. When Officer Traynor grabbed Ms Atoms.[97]
   2. When Officer Traynor and Officer Clark took hold of Dr Cunningham.[98]
   3. When Mr Caldwell tasered each of Dr Cunningham and Ms Atoms.[99]
   4. When Officer Clark pushed Ms Atoms.[100]
   5. When Officer Clark launched prosecution of the criminal charges against Dr Cunningham and Ms Atoms 'on obviously insufficient material'.[101]
4. In relation to grounds 1 - 6 generally, the State says that her Honour erred in failing to apply or properly apply s 137 of the Police Act on its proper construction, and in failing thereby to give separate judgment against the State for apportioned damages caused by the torts of Officer Traynor, Officer Clark and Mr Caldwell which were done without malice.[102]
5. In particular, in relation to the judge's findings that the State was liable for the tort of false imprisonment (grounds 1(b), 2(c) and 4(b)), the State says that it cannot be made liable for damages for false imprisonment because the false imprisonment itself was a tort that 'results from' the torts committed by Officers Traynor and Clark with malice.[103]
6. In relation to the finding of battery constituted by Officer Clark pushing away Ms Atoms (ground 5(b)), the State alleges that the judge found, in effect, that Officer Clark acted with malice throughout his dealings with Ms Atoms, and that this must include when he pushed Ms Atoms away. Accordingly, it is said, the State cannot be held liable for the damages arising from that malicious act.[104]
7. In respect of ground 7, the State says that if the court finds the judge erred in relation to any of the previous grounds, it follows that her Honour also erred in law in holding the State jointly and severally liable with Officer Traynor, Officer Clark and Mr Caldwell for Dr Cunningham's and Ms Atoms' costs of the action.[105] Reference is also made to O 66 r 2(e) of the Rules of the Supreme Court 1971 (WA).[106]

1. In the 'orders wanted', the State seeks substitutive orders in lieu of the orders made by Davis DCJ in terms including:[107]
   1. There be judgment for [Dr Cunningham] against:

(a) [Officer Traynor] in the sum of $25,678.08

(b) [Officer Clark] in the sum of $62,961.06

(c) [Mr Caldwell] in the sum of $18,341.49

(d) the [State] in the sum of $3,323.47

(a) [Officer Traynor] in the sum of $226,112.88;

(b) [Officer Clark] in the sum of $342,136.97;

(c) [Mr Caldwell] in the sum of $229,701.23;

(d) the [State] in the sum of $226,871.04

1. [Officer Clark's] counterclaim is dismissed.
2. The defendants pay the [Dr Cunningham's and Ms Atoms'] costs of the action to be taxed if not agreed, such costs to be taxed as one set of costs and to be apportioned as follows:

(a) 22.18% payable by [Officer Traynor];

(b) 35.69% payable by [Officer Clark];

(c) 21.85% payable by [Mr Caldwell];

(d) 20.28% payable by the [State].

1. By their cross-appeal, as filed, Officer Traynor, Officer Clark and Mr Caldwell alleged:[108]
   1. The judge erred in law in entering judgment for Dr Cunningham jointly against all defendants in the sum of $99,704.10.
   2. The judge erred in law in entering judgment for Ms Atoms against Officer Clark and Mr Caldwell and the State in the sum of $993,822.11.
   3. Further or alternatively to ground 2, the judge erred in law in entering judgment for Ms Atoms against Officer Clark (jointly with Mr Caldwell and the State) for damages in the sum of $993,822.11.
2. By their first two grounds of appeal, Officer Traynor and Officer Clark and Mr Caldwell contend that the judge ought to have, but failed, to apportion liability between the defendants consistent with her findings in the primary decision.[109]
3. At the hearing of the appeal, counsel for the cross-appellants informed the court in effect that:[110]
   1. They only pursued grounds 1 and 2.
   2. Grounds 1 and 2 'fall away' if the State fails in the appeal, and there is no proportionate liability.

1. At this point it is convenient to set out in detail the judge's findings on liability, malice and causation.

1. The judge's findings with respect to Ms Atoms and Dr Cunningham are to be understood in the context of her Honour's reasons read as a whole. These include her Honour's statement of the issues at [145] where, amongst other things, her Honour said:[111]

Having regard to the pleadings, the evidence and submissions of the parties at trial (and with some minor changes to the issues which I discussed with counsel for the parties during trial, and the addition of issues five, six and 10), I consider that the following issues relevant to liability are:

...

1. was the arrest of Dr Cunningham lawful?
2. was there an excessive use of force by Officers Traynor and Clark against Dr Cunningham?
3. why did Officer Clark push Ms Atoms and was this justified?
4. was there any justification for tasering Ms Atoms?
5. was Ms Atoms' arrest lawful?
6. was there any justification for tasering Dr Cunningham?
7. how were Ms Atoms and Dr Cunningham handled after their tasering until the time they were placed in the police van?
8. was the imprisonment of Ms Atoms at any time until released on bail lawful, and therefore justified?
9. was the imprisonment of Dr Cunningham at any time until released on bail lawful and therefore justified?
10. was any of the individual conduct of the first, second or third defendants malicious?
11. was the prosecution of the criminal charges against Ms Atoms and Dr Cunningham malicious in the sense of being:

(a) without reasonable and probable cause; and

(b) actuated by malice?

1. In relation to malice, and with evident reference to point 13 in [145] referred to in the preceding paragraph,[112] at [755] her Honour said that the allegations of malice were:
   1. in relation to Ms Atoms (1) whether Officer Traynor acted with malice when he grabbed Ms Atoms on the footpath, and (2) whether Mr Caldwell acted with malice when he tasered Ms Atoms;[113] and
   2. in relation to Dr Cunningham, (1) whether Officers Traynor and Clark acted with malice 'when arresting and dealing with Dr Cunningham', and (2) whether Mr Caldwell acted with malice when he tasered Dr Cunningham.[114]

1. In relation to the conduct of Officer Traynor in grabbing Ms Atoms, the primary judge found that he acted in pique or personal spleen.[115] He exhibited anger and spite, ie, malice.[116] He was acting with a motive other than that of bringing a wrongdoer to justice, and he was exercising his authority other than in an honest attempt to perform the functions of his office, and acted maliciously.[117]
2. In relation to the conduct of Officers Traynor and Clark when arresting and dealing with Dr Cunningham,[118] the judge made the following findings. Officers Traynor and Clark were activated by ill-will and anger in using force against him to arrest him.[119] Their ill-will then 'infected' their decision-making.[120] Their behaviour towards Dr Cunningham was motivated by spite, ill-will, or pique towards him.[121] They were acting with a motive other than that of bringing a wrongdoer to justice, and were exercising their authority other than in an honest attempt to perform the functions of their office, and were acting maliciously.[122]
3. In relation to the tasering of Ms Atoms and Dr Cunningham, Mr Caldwell was not honestly attempting to perform the functions of his office, and he acted maliciously.[123]
4. In relation to the prosecution of Dr Cunningham and Ms Atoms, Officer Clark did not act with a genuine desire to serve the ends of justice, but rather acted solely or predominantly with an indirect or improper motive.[124] The prosecution was brought for a purpose other than the proper invocation of the criminal law.[125]
5. There is no finding that the unknown police officers acted with malice when, after tasering, they picked up Dr Cunningham and Ms Atoms, and roughly led and placed them in the police van.

1. The primary judge made, in effect, the following findings in relation to the police officers' conduct with respect to Ms Atoms:
   1. The conduct of Officer Traynor in grabbing Ms Atoms on the wrist on each of the first and second occasions constituted a battery, was done with malice, and constituted misfeasance in public office.[126]
   2. The conduct of Officer Clark in pushing her away constituted battery, but without malice,[127] for which the State was found liable.[128]
   3. The conduct of unknown police officers handcuffing and handling her after she had been tasered constituted battery. Her Honour did not find malice in that regard,[129] and found the State liable for this.[130]
   4. The conduct by Officer Traynor in grabbing Ms Atoms the second time also constituted detaining her and she was not free to go.[131] Her detention was unlawful and constituted false imprisonment (1) from the time she was grabbed the second time by Officer Traynor until he let her go when he turned to deal with Dr Cunningham, and (2) after she was tasered until she was released on bail.[132] There is no express finding that the detention throughout the whole of the two periods was done with malice. This was although the first period of false imprisonment commenced with the malicious battery by the second grabbing of her arm (see point 1 above), and the second period of false imprisonment commenced with her arrest[133] after the (malicious) tasering, with unknown police officers handcuffing and handling her and putting her into the police van until she was released on bail.[134] There was no finding of malice against the unknown police officers in relation to the second period of false imprisonment.
   5. The State was liable for the false imprisonment.[135]
   6. The conduct of Officer Traynor in grabbing her, and the conduct of Mr Caldwell in tasering her, involved malice and constituted misfeasance in public office.[136]
   7. The conduct by Officer Clark in prosecuting her constituted malicious prosecution.[137]
2. The conduct of Officer Clark in pushing Ms Atoms away (see point 2 in the preceding paragraph) occurred after she was released by Officer Traynor and before she was tasered.[138] The State contended that her Honour found this battery as having been done with malice. The State relies in particular on [784] and [788] of the primary decision. The judge observed in [784] that (1) Ms Atoms 'could have easily been kept at arm's length', and (2) that Officer Clark 'demonstrated a similar disregard for the plaintiffs'.[139] In her reasons at [788], the judge also said that each of the defendants 'when dealing with the plaintiffs, acted with malice'.
3. The first of the two observations in [784] referred to above is not inconsistent with the finding of battery without malice. The other observations referred to in [784] and [788] are very general observations, and are inconsistent with her Honour's specific findings with respect to Officer Clark's conduct in pushing Ms Atoms away. Those generalised observations are, however, explicable in the sense that they may apply to the torts committed by Officer Clark against Dr Cunningham and to the malicious prosecution of both Ms Atoms and Dr Cunningham by Officer Clark.
4. The judge's reasons must be read and construed as a whole. The paragraphs of her Honour's reasons which make it clear that her Honour did not find malice in relation to this battery are footnoted in respect of point 2 of [85] above. When the judgment is read as a whole, the paragraphs relied on by the State do not constitute a finding that the pushing of Ms Atoms was done with malice. The effect of the reasons for judgment, read as a whole on this topic, indicate that the judge found that Officer Clark's conduct in pushing Ms Atoms away was not done with malice.
5. In relation to the false imprisonment of Ms Atoms (see points 4 and 5 of [85] above), the effect of the judge's findings, when her Honour's reasons are read as a whole, is that:
   1. The first period of false imprisonment commenced with the malicious battery by Officer Traynor grabbing her, and she remained under the restraint of the grab until she was released, with the consequence that throughout this period of detention, Officer Traynor's restraint involved malice.
   2. The second period of false imprisonment commenced with the restraint imposed by her arrest by the unknown police officers, that was done without malice. Her continued detention pursuant to the arrest, until she was released from Fremantle police station, also occurred without malice.

1. The primary judge found, in effect, that Ms Atoms had suffered a back injury[140] and psychiatric injury,[141] as a result of the events which had occurred in the early hours of 2 November 2008.
2. In relation to the back injury, her Honour found, in effect, that it was caused by the non-malicious battery by Officer Clark, the non-malicious battery by the unknown officers, and the malicious tasering by Mr Caldwell.[142]
3. There was no finding that the false imprisonment caused her back injury, and there were positive findings to the effect that her back injury was not caused by:

(a) the conduct of Officer Traynor in grabbing Ms Atoms' arms (on both occasions);[143] and

(b) the malicious prosecution by Officer Clark.[144]

1. In relation to Ms Atoms' psychiatric injury, her Honour found that this was caused by the non-malicious tortious conduct of Officer Clark, the non-malicious conduct of the unknown officers handling her and putting her into the police van after tasering, the false imprisonment (malicious for the first period and non-malicious for the second period, as indicated in [89] above), the malicious conduct of Mr Caldwell in tasering her, and the malicious prosecution. Her psychiatric injury was not caused by Officer Traynor's battery by grabbing Ms Atoms' arms.[145] In this regard, the judge evidently concluded that whilst the particular battery which commenced the restraint for the false imprisonment was not causative of psychiatric injury, the restraint itself, up to the time she was released when her arm was let go, was causative of psychiatric injury.

1. The judge made, in effect, the following findings with respect to Dr Cunningham:
   1. The conduct of Officers Traynor and Clark in arresting Dr Cunningham (he was arrested when he was first taken hold of and had his hands pulled behind his back)[146] was unlawful and was done with malice and constituted misfeasance in public office.[147] The conduct involved in the arrest included:[148]

(a) the conduct of Officers Traynor and Clark in grabbing Dr Cunningham's arms and putting them behind his back. This constituted battery, was done with malice, and constituted misfeasance in public office;[149] and

(b) the pushing of Dr Cunningham towards Essex Street while holding his arms behind his back, handcuffing him and kicking him in the leg. This was unlawful, constituted battery, was done with malice and constituted misfeasance in public office.[150]

1. Mr Caldwell's conduct in tasering Dr Cunningham was done with malice and constituted misfeasance of public office.[151]
2. The handling of Dr Cunningham by the unknown police officers following the tasering, until he was placed in the police van, constituted battery. Her Honour does not expressly find malice,[152] and found the State liable for this battery.[153]
3. From the moment Dr Cunningham was first grabbed by Officer Clark until he was released from the Fremantle police station, he was falsely imprisoned.[154] Her Honour did not expressly find malice in that regard, and found the State liable for this.[155]
4. The prosecution by Officer Clark involved malice and constituted malicious prosecution.[156]
5. In relation to the false imprisonment of Dr Cunningham (see point 4 in the preceding paragraph), although her Honour did not expressly find malice, she noted that the false imprisonment included all of the batteries involved in the wrongful arrest and the tasering (all of which were malicious), and the handling after the tasering (for which there was no finding of malice).[157] In light of the finding that Dr Cunningham was arrested with malice and the detention resulting from the arrest continued until he was released from Fremantle police station, it might be inferred from the reasons, and the State contends, that the judge found, in effect, that the whole of Dr Cunningham's physical detention throughout that period was actuated by malice. On the other hand, Dr Cunningham contends that properly understood, there was, in substance, a finding of a second period of false imprisonment, starting with the non-malicious conduct of the unknown police officers in bundling Dr Cunningham into the police van to be taken to the police station. In support of that submission, Dr Cunningham refers to the facts that he did not plead malice, or seek exemplary damages in that regard, and that the State had never pleaded or alleged malice in that regard. This question turns, ultimately, on the proper construction of the judge's reasons read as a whole. On balance, it seems to us that whilst the judge found that there was false imprisonment covering the whole of the period from when Dr Cunningham was first arrested, the conduct of the unknown police officers in handling him and bundling him into the van for him to be taken to the police station constituted a separate act of restraint, the effect of which continued whilst he remained in the van and was taken to the police station. As no party alleged that this restraint was done with malice, the better construction of the reasons is that this period of false imprisonment was not affected by malice.

1. The judge found that Dr Cunningham suffered psychiatric injury in the form of post-traumatic stress disorder.[158]
2. Her Honour found that all of the tortious conduct on 2 November 2008 and their sequelae caused Dr Cunningham's psychiatric injury.[159]

The Police Act Sections 137 and 138 of the Police Act

1. Section 137 of the Police Act provides:
   1. Protection from personal liability

(a) is in addition to section 5 of the Criminal Code Act 1913; and

(b) does not affect any right to recover damages from the owner or driver of a motor vehicle in respect of the death of or bodily injury to a person directly caused by, or by the driving of, the motor vehicle,

but otherwise applies despite any other written law.

(2) This section applies to and in respect of anything done after the commencement of the Acts Amendment (Police Immunity) Act 1999.

(3) 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.

(4) An action in tort does not lie against a person for anything that the person has done, without corruption or malice, in assisting a member of the Police Force who is performing or purporting to perform the functions of a member of the Police Force, whether or not under a written or other law.

(5) The Crown is liable for a tort that results from -

(a) anything done by a member of the Police Force, 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;

(b) anything done by a person, without corruption or malice, in assisting a member of the Police Force who is performing or purporting to perform the functions of a member of the Police Force, whether or not under a written or other law.

(6) The Crown's liability under subsection (5) does not extend to exemplary or punitive damages.

(7) If a person to whom subsection (3) or (4) applies does not cooperate fully with the Crown in the defence of an action in tort against the Crown in respect of anything done by the person, the Crown may recover from the person the Crown's costs of defending the action and any damages and costs awarded against the Crown in the action.

(8) For the purposes of subsection (7), a person does not cooperate fully with the Crown if the person refuses -

(a) to answer any question, including a question the answer to which is or may be self-incriminating; or

(b) to produce any object or recorded information in the person's possession or control,

(9) If a person, in cooperating with the Crown in the defence of an action referred to in subsection (8), gives an answer that is or may be self-incriminating, the answer is not admissible in any criminal or disciplinary proceedings against the person except proceedings for a criminal or disciplinary offence arising from the giving of a false answer. (footnotes omitted) (emphasis added)

1. Section 138 of the Police Act provides:
   1. Corrupt or malicious acts by police

(1) This section applies if a person (the claimant), in an action in tort, is awarded damages -

(a) against a member of the Police Force (the defendant) for anything that the member has done maliciously or corruptly while performing or purporting to perform the functions of a member of the Police Force, whether or not under a written or other law; or

(b) against a person (the defendant) for anything that the person has done maliciously or corruptly in assisting a member of the Police Force who is performing or purporting to perform the functions of a member of the Police Force, whether or not under a written or other law,

and the thing was done after the commencement of the Acts Amendment (Police Immunity) Act 1999.

(2) The claimant may request the Treasurer to pay the damages awarded to the claimant, other than exemplary or punitive damages, and any costs ordered to be paid to the claimant.

(3) The Treasurer may pay the claimant all or some of the damages and costs if satisfied -

(a) that the claimant is unlikely to recover them from the defendant; and

(b) that there is no relationship or connection between the claimant and the defendant, or a close relative of the defendant, that is likely to result in a benefit or advantage to the defendant if the claimant were paid the damages and costs.

(4) Any amount paid by the Treasurer to the claimant is a debt due to the Crown by the defendant and may be recovered in a court of competent jurisdiction.

(5) In this section -

close relative, in relation to a person, includes a de facto partner of the person. (emphasis added)

1. For present purposes, it is sufficient to refer to the High Court's decision in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory). In Alcan, French CJ said:[160]

The starting point in consideration of the first question is the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and the legislative purpose. ...

In so saying, it must be accepted that context and legislative purpose will cast light upon the sense in which the words of the statute are to be read. Context is here used in a wide sense referable, inter alia, to the existing state of the law and the mischief which the statute was intended to remedy. (footnotes omitted)

1. Also in Alcan, Hayne, Heydon, Crennan and Kiefel JJ said:[161]

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy. (footnotes omitted)

1. The following matters shed some light on the historical considerations, the then existing state of the law, and the mischief which s 137 of the Police Act was (objectively) intended to remedy.

1. Under the common law in England, there developed a collection of rules, compendiously described in their effect as Crown immunity, which reflected the concepts that the courts of justice were those of the Sovereign, that the Sovereign could not be impleaded in his or her own courts, and, in relation to claims in tort, that 'the King can do no wrong'.[162]
2. Even in England, however, before the reforms made by the Crown Proceedings Act 1947 (UK), Crown immunity was not absolute. The petition of right was available, which was said to give effect to the principle that the subject should receive a redress from the Crown in those cases where redress would be available from a fellow subject.[163] The petition of right applied to claims in contract, but it did not, however, apply to a tortious act done by the Crown, or by a public servant by the authority of the Crown.[164] The exclusion of tort claims from the petition of right effectively 'immunised the Crown from any liability in tort, because no other remedy was available for the purpose'.[165]
3. Nevertheless, a servant of the Crown was responsible at common law for a tortious act done to a fellow subject, although done by the authority of the Crown, and, to that tortfeasor, the immunity of the Crown afforded no defence. Further, in most instances, the action against the officer or servant of the Crown would have the same effect as a petition of right. That is because, in a proper case, the Crown would defend its officer and become responsible for any damages awarded.[166]
4. In Australia, before federation, all the Australian colonies, save Victoria, had legislation (which, for convenience, may be described as 'Crown suits legislation') establishing procedures whereby claims in tort, as well as in contract, might be brought against the colonial governments.[167] In Western Australia, the relevant statute was the Crown Suits Act 1898 (WA).[168] That statute was the predecessor to the current Crown Suits Act 1947 (WA). Section 5 of the latter statute provides, in effect, that, subject to that Act, the Crown (defined to mean the Crown in right of the government of Western Australia) may sue and be sued in any court in the same manner as a subject. In Bell v The State of Western Australia,[169] McLure J said, by reference to Mewett, that at common law the Crown was always liable in tort but enjoyed an immunity from liability, and that the Crown Suits Act had removed the immunity with the effect that any pre-existing liability could be enforced.
5. In relation to torts, the removal of Crown immunity by legislation meant that, in general terms, whenever the relation of the Crown to its employees was such that in a similar case, an individual would be liable for the acts of his or her employee, the Crown would be liable for the acts of its employees.[170] The liability was vicarious and not direct.[171]
6. The removal of Crown immunity for vicarious liability in this regard did not, however, make the Crown liable for the tortious conduct of police officers in the performance, or supposed performance, of the powers and duties imposed on them by law. That was because under the common law the Crown had no vicarious liability in any event in those circumstances. Rather, under the common law, public officers whom the law charged with a discretion and responsibility in the execution of an independent legal duty were alone responsible for tortious acts which they committed in the course of their office, and for such acts, the government, or body whom they served or which appointed them, incurred no vicarious liability.[172]

1. Under the common law, exemplary damages, or punitive damages (they are the same),[173] go beyond compensation, and are awarded to punish the defendant and provide retribution, to act as a deterrent to the defendant and others minded to behave in a similar way, and to demonstrate the court's disapproval of such conduct.[174] The remedy of exemplary damages arises chiefly, but not exclusively, where there has been conscious wrongdoing in contumelious disregard of another's rights.[175]
2. Absence of malice alone, however, will not prevent an award of exemplary damages.[176] In Johnstone, Bray CJ said that the 'defendant's conduct was outrageous, high-handed and contumelious, though not malicious in the sense of motivated by spite, ill-will or hatred'.[177]
3. The first, if not principal, focus of the inquiry with respect to exemplary damages is upon the wrongdoer, and not the party who has suffered the wrongdoing.[178]
4. One of the earliest kinds of cases where punitive damages was recognised as appropriate was where there had been 'oppressive, arbitrary or unconstitutional action by the servants of the government'.[179] Before the Crown was liable in tort (through legislation of the kind described earlier), awards of exemplary (punitive) damages were made against the individual Crown servants who were guilty of the oppressive action.[180] Thus, 'the personal means of comparatively lowly officials, sued at a time when Crown immunity still barred a direct action, would not constrain awards of exemplary damages'.[181]

1. Aggravated damages, on the other hand, are compensatory in nature. They are given by way of compensation for the injury to the plaintiff which may be intangible, for example, in respect of injury caused by insult, humiliation and the like.[182] They are intended to compensate the plaintiff when the harm done by the wrongful act is aggravated by the manner in which the act is done.[183] This may include the high-handed, malicious, insulting or oppressive manner in committing the tort.[184] In Uren, Windeyer J observed that '[t]he theory is that in such a case the damage is still only compensatory because the more insulting or reprehensible the defendant's conduct the greater the indignity that the plaintiff suffers and the more he should receive for the outrage to his feelings'.[185] His Honour added, however, that '[i]t seems to me that in truth a punitive or vindictive element does lurk in many cases in which the damages were aggravated by the defendant's conduct'.[186]
2. In a similar vein, in Johnstone, Bray CJ, with reference to the distinction between aggravated damages and exemplary damages, observed:[187]

Very often, of course, perhaps usually, the same circumstances which increase the hurt of the plaintiff because of the malicious, insolent, high-handed or contumelious conduct of the defendant also make it desirable for the Court to mark its disapprobation of his conduct.

1. Also, in Cotogono, the court observed that 'in some cases it may be difficult to differentiate between aggravated damages and exemplary damages'. [188]
2. In Carson v John Fairfax & Sons Ltd,[189] Mason CJ, Deane, Dawson and Gaudron JJ referred to the distinction between aggravated and exemplary damage in the context of defamation proceedings in circumstances where the relevant statute excluded liability for exemplary damages.[190] Their Honours said:[191]

As Windeyer J acknowledged in Uren ... there is an element of the punitive in aggravated damages at common law. Under s 46, by reason of the exclusion of exemplary damages, it is necessary to confine an award of aggravated damages to what is truly compensatory.

1. More generally, damages are the common law remedy for a civil wrong. Under the common law, concurrent tortfeasors are persons, although not acting in concert between themselves, who inflict a single injury to the plaintiff.[192] At common law, the liability of concurrent tortfeasors causing the same damage is 'in solidum' in that each is responsible to make good the whole of the damage caused.[193] The common law's recognition that concurrent tortious acts may each be a cause of a plaintiff's loss or damage is reflected in the proposition that the plaintiff must establish that his or her loss or damage is 'caused or materially contributed to' by a defendant's wrongful conduct. It is enough for liability under the common law that the wrongdoer's conduct be one cause. The relevant inquiry is whether the particular contravention was a cause, in the sense that it materially contributed to, the plaintiff's loss.[194]
2. With solidary liability, a plaintiff can recover his or her loss from one wrongdoer only, leaving that wrongdoer to seek contribution from other wrongdoers - not under the common law but under apportionment legislation.[195] The risk that any of the other wrongdoers will be insolvent, or are otherwise unable to meet a claim for contribution, lies with the defendant sued.[196]
3. Solidary liability under the common law may be compared with proportionate liability provided for by statute.[197] Where proportionate liability exists, liability is apportioned to each wrongdoer according to the court's assessment of the extent of their responsibility. It is therefore necessary that the plaintiff sue all of the wrongdoers in order to recover the total loss. The risk that one of them may be insolvent shifts to the plaintiff.[198]

1. In this State, from an early time, the personal liability of a police officer was limited by the incorporation into the Police Act of par H of the Second Schedule to the Interpretation Act 1918 (WA).[199] The effect of par H was to preclude an action against a police officer, 'unless there [was] direct proof of corruption or malice', and to empower the court to award treble costs against an unsuccessful plaintiff.
2. In Trobridge, Fullagar J said that the word 'malice' as used in the statute was used in the sense familiar in cases of malicious prosecution 'of personal spleen or ill-will, or some motive other than that of bringing a wrongdoer to justice'.[200] Kitto J said in that regard that malice in this context involves establishing that the defendant 'was actuated solely or predominantly by wrong or indirect motive ... That is to say, from some desire other than to discharge his duty to the public'.[201] Kitto J's observations were referred to with approval in A v New South Wales,[202] where Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ, in discussing the law of malicious prosecution (albeit not in the context of the Police Act) said:[203]

What is clear is that, to constitute malice, the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law - an 'illegitimate or oblique motive' . That improper purpose must be the sole or dominant purpose actuating the prosecutor. (footnotes omitted)

1. Section 53K of the Police Act, since repealed, put the prohibition against liability more positively. Section 53K provided, in effect, that a police officer 'is not civilly liable for any thing done or omitted to be done by him or her in good faith or in connection with the performance or purported performance of his or her functions'.
2. It is to be noted that neither par H of the Second Schedule of the Interpretation Act 1918 (WA), nor s 53K of the Police Act, provided that the Crown is liable for the tortious conduct of police officers in the performance, or supposed performance, of the powers and duties imposed on them by law. The common law in this regard was not altered.

The explanatory memorandum and the second reading speech

1. Sections 136 - 138 of the Police Act were inserted by s 5 and s 6 of the Acts Amendment (Police Immunity) Act 1999 (WA).
2. The Explanatory Memorandum to the Acts Amendment (Police Immunity) Bill 1999 states:[204]

Other people such as public servants paid by the State to provide a service to the community are protected by vicarious liability legislation where their actions are in good faith. This legislation seeks to extend similar protection to police acting lawfully in the performance of their functions as a member of the Police Service.

...

This Bill will provide the protection necessary for police officers to carry out their lawful duties in the firm knowledge that they will not be held liable for the consequences of any of their lawful actions, unless they are acting in a corrupt or malicious manner.

...

Section 137 provides the protection from personal liability.

...

Subclause (3) provides that a member of the police force is protected from personal liability for anything that the member has done, under the following conditions:

(i) there will be no protection for any action which is deemed to have been malicious or corrupt;

(ii) the member is protected for anything done while performing or purporting to perform the functions of a member of the Police Force, whether or not under a written or other law.

...

Subclause (5) provides for the Crown to be held liable for those situations covered under subclauses (3) and (4).

1. In his second reading speech for the Bill, the then Minister for Police stated:[205]

In amending the Police Act 1982, this Bill provides clear and unequivocal protection from civil action against a member of the Police Service. This protection is for anything that the member has done, without corruption or malice, in the performance of his or her functions as a member of the Police Service, whether or not under a written or other law. Importantly, this Bill does not preclude an innocent third party from seeking compensation for any injury or loss arising from an action of a member of the Police Service which is negligent but is neither malicious nor corrupt.

...

It should be noted that other people, such as public servants paid by the State to provide a service to the community, are protected by vicarious liability legislation where their actions are in good faith. This legislation seeks to extend this protection to police acting lawfully in the performance of their functions as a member of the Police Service.

...

While the Crown will not be liable for an action which is deemed corrupt or malicious, the Bill provides the opportunity for a claimant to request the Treasurer to pay any damages awarded, other than exemplary or punitive, or costs which are ordered. The Treasurer may pay such entitlements where there is little prospect of the claimant recovering them from the defendant. Any such payment will be a debt owing to the Crown and recoverable through the courts.

The Acts Amendment (Police Immunity) Bill will provide the protection necessary for police officers to carry out their lawful duties in the firm knowledge that they will not be held liable for the consequences of any of their lawful actions, unless they are acting in a corrupt or malicious manner. It is high time that our dedicated police personnel were granted such basic protection in the execution of their difficult and demanding duties. I commend the Bill to the House, and I also table an explanatory memorandum.

The State's contentions on the meaning of 'liable' in s 137(5) of the Police Act

1. The State contends that:[206]
   1. By reference to the history of the provision and the extrinsic materials, it is evident that section 137 was inserted to remedy the situation at common law where the State is not vicariously liable for public officers acting in the independent exercise of their duties, leaving individual police officers vulnerable to suit.
   2. The legislature has imposed a form of vicarious liability on the Crown for acts of police officers done without corruption and malice.
   3. The ordinary meaning of the word 'liable' is, relevantly, 'under legal obligation, responsible or answerable':

Macquarie Dictionary, (Macmillan Publishers Group Australia, 6th ed, 2015).

1. This definition accords with general understandings of the legal term 'vicarious liability'.
2. However, when the word 'liable' is used in the particular legal context of vicarious liability, the word means under a legal obligation in relation to, or responsible or answerable for, damage caused by tortious acts.
3. Therefore, the word 'liable' in section 137(5) should be construed to mean 'is answerable for damage caused by' the torts referred to. The Crown is not simply responsible for the tort, it is responsible for the damage flowing from the tort.
4. Given this provision imposes statutory liability where there is none at common law, section 137 of the Police Act goes directly to the rights of a plaintiff against the Crown; the Crown is only answerable for damage caused by the torts referred to in section 137(5).
5. In the absence of section 137(5), a plaintiff has no right against the Crown for tortious acts done by police officers.
6. It follows that section 137(5) has the effect that the Crown is only answerable for damage caused by torts done by a member of the Police Force, without corruption or malice, while performing or purporting to perform the functions of a member of the Police Force. (original emphasis)

1. For present purposes, the following observations may be made. First, s 137(3) provides that an 'action does not lie' in the circumstances referred to. It is directed principally to the protection of police officers acting without corruption or malice. Section 137(3) operates, in general terms, (not unlike its predecessor, s 57A) positively to provide immunity from 'action' in tort, to police officers performing or purporting to perform their functions for anything done without corruption or malice. When s 137(3) is engaged, it confers immunity from action.[207] It alters the position at common law,[208] insofar as and to the extent that under the common law, an action could lie against a police officer in tort even where the police officer has acted without malice or corruption. It nevertheless leaves the common law to apply to torts where police officers in the performance, or purported performance, of their powers and duties, act with corruption or malice. The liability of police officers in such circumstances could include liability for both aggravated and exemplary damages.
2. Section 137(5) is directed to the protection of members of the public who suffer loss or damage consequent upon the tortious conduct of police officers insofar as it makes the Crown 'liable for a tort that results from ... anything done by [the police officers] without corruption or malice' whilst performing or purporting to perform their functions. Section 137(5), in effect, gives the victims of tort redress against the State in circumstances where the police officer has acted without malice or corruption. The provision imposes a positive liability. It is to be understood in the context of the operation of s 137(3), referred to above. Its principal purpose is, evidently, to abrogate the common law rule that the Crown is immune from liability for the tortious conduct of police officers in the performance, or supposed performance, of the powers and duties imposed on them by law, insofar as the common law rule would apply to circumstances where the police officers have acted without corruption or malice.[209]
3. On the other hand, insofar as the tortious conduct of the police officer is done with corruption or malice, the State has no liability under s 137(5). The common law rule,[210] which has the effect of making the police officer, not the State, liable in those circumstances, remains unaffected.
4. Section 137(5) is a beneficial provision and is to be given the fullest relief which the fair meaning of its language will allow.[211]
5. The words 'result from' in this context have their ordinary meaning and denote to 'arise or proceed as a consequence from'.[212] They invite attention to the question of whether there is a tort, arising or proceeding as a consequence from the acts of the police officers done without corruption or malice whilst performing or purportedly performing their functions. If there is, s 137(5) imposes a liability on the Crown. The word 'liability' evidently means legal liability. The Crown's legal liability for a tort that results from anything done by the police officer without corruption or malice includes the liability to pay damages, subject to s 137(6).
6. Section 137(6) provides that the Crown's liability under s 137(5) 'does not extend to exemplary or punitive damages'. When s 137(5) and s 137(6) are read together and in the context of s 137 as a whole, the Crown's liability under s 137(5), where it applies, 'extends to' compensatory damages. Section 137(5) and s 137(6) indicate that the public purse should be open for all compensatory damages (including aggravated damages) for tortious acts of police officers done without corruption or malice, but not for damages designed, amongst other things, to punish, deter or provide retribution in a manner going beyond compensation to the victim of the tort.
7. By s 138(1), additional protection is given to members of the public who suffer loss or damage consequent upon the tortious conduct of police officers by providing for the prospect of some financial redress against the State to a plaintiff (claimant) who, in an action in tort, 'is awarded damages against a [police officer] for anything done by [the police officer] maliciously or corruptly' whilst performing, or purporting to perform, his or her functions.
8. Under s 138(2), the claimant may request the Treasurer of the State to pay 'the damages awarded to the claimant, other than exemplary or punitive damages', and any costs ordered to be paid to the claimant. By s 138(3), the Treasurer may pay the claimant all or some of 'the damages' and costs if satisfied, in effect, that the claimant is unlikely to recover them from the defendant, and there is no relationship or connection between the claimant and the defendant, or a close relative to the defendant, that is likely to result in a benefit or advantage to the defendant if the claimant were paid the damages and costs by the State.
9. Section 138 indicates that where compensatory damages (including, but not limited to, aggravated damages that are 'truly compensatory'[213]) have been awarded against a police officer for anything maliciously or corruptly done by the police officer whilst performing or purporting to perform his or her functions, the State may, in effect, make an ex gratia payment of some or all of the damages so ordered.
10. When s 137 and s 138 are read together, the object of s 138 appears, at least principally, to provide the prospect of pecuniary relief to a plaintiff in circumstances where the police officer alone is liable at common law, and the plaintiff was awarded damages against the police officer in an action in tort, subject to the qualification that the State is never to pay exemplary or punitive damages. That is consistent with the intention, apparent in s 137(6) and s 138(2), to exclude a claim on the public purse for exemplary or punitive damages.[214]
11. Section 138 has no operation where there is a damages award (including aggravated damages) in an action in tort resulting from anything done by a police officer without corruption or malice.[215] Where a tort results from anything done by a police officer without corruption or malice, the State is liable for the tort under s 137(5) but its liability in damages extends only to damages (including aggravated damages) which are compensatory in nature. Whilst it is true that in many cases a finding of malice will mean that both aggravated and exemplary damages may be awarded, as noted earlier, an award of aggravated damages does not require the finding of malice.[216]

1. Nothing arises from the above analysis to suggest that s 137(5) requires an apportionment in the manner suggested by the State. As noted earlier, however, the State relied on the case of Watkins in support of its contention that s 137 of the Police Act overrides the general principle of solidary liability. Before making some further observations on the operation of s 137, and its particular application in this case, it is convenient to set out in some detail the decision in that case. Watkins concerned, amongst other things, the application of s 123(1) of the Police Regulation Act 1958 (Vic)[217] (Police Regulation Act) to a claim by the plaintiff that he was assaulted in connection with the taking of his fingerprints. There were five assaults. The first assault, by F and L, was when the plaintiff was restrained and an attempt was made to move him to the fingerprinting counter.[218] The second assault involved another police officer, K, hitting the plaintiff in the face as hard as he could using the butt of his palm.[219] The third involved F, L and K forcing the plaintiff to the ground, face first, and holding him there.[220] The fourth concerned F, L and K propelling him to the back of the room and pushing him hard against the wall, face first.[221] The fifth assault was when the plaintiff was forcefully held around his neck by the police officers.[222]
2. The police officers' defences of self-defence and the defence of others failed because, on the evidence, the police officers did not believe, or did not believe upon reasonable grounds, that it was necessary in their self-defence or the defence of others to do what they did.[223] Further, the second and third assaults were not acts reasonably done in good faith in the course of the police officers' duties within the meaning of s 123(1) of the Police Regulation Act. Accordingly, K was not entitled to the immunity conferred by s 123(1) in respect of the second assault and F, L and K were not entitled to immunity in respect of the third assault, and the State of Victoria was not liable for either of those assaults under s 123(2).[224]
3. The court noted that certain concessions had been made by the State. The court said that the State:[225]
   1. Conceded that 'any liability' which L and F had in respect of the first, second, third, fourth and fifth assaults should be 'transferred' to the State under s 123(2) of the Police Regulation Act.
   2. Conceded that 'any liability' that K had in respect of the fourth and the fifth assaults should also be 'transferred' under s 123(2) of the Police Regulation Act.
   3. Did not accept any 'transfer' of K's liability in respect of the second or third assaults.
4. The plaintiff suffered no physical injury from the first assault and was awarded $3,000 for the natural feelings of affront suffered by the forcible manhandling.[226]
5. In relation to the second, third, fourth and fifth assaults, the court awarded compensatory damages totalling $95,000, comprising $15,000 for pecuniary loss and $80,000 for general damages (pain and suffering and loss of enjoyment of life).[227]
6. The court then said:[228]

The concessions made by [the State of] Victoria mean, because the second and third assaults perpetrated by [K] do not attract the operation of s 123(2) of the Police Regulation Act, that it is necessary for us to apportion the damages between the second assault and the third to fifth assaults; and also to apportion the damages between the third assault on the one hand and the fourth and fifth assaults on the other.

1. Next, out of the total of $95,000, the court apportioned $70,000 to the second assault, and $25,000 to the third, fourth and fifth assaults.[229]
2. In relation to the $25,000 in respect of the third, fourth and fifth assaults, the court also apportioned that amount (1) as to $12,000 in respect of the third assault, (2) as to $7,000 in respect of the fourth assault, and (3) as to $6,000 in respect of the fifth assault.[230] The result was that the plaintiff was entitled to a total of $98,000 ($3,000 for the first assault and $95,000 in respect of the second, third, fourth and fifth assaults). The court concluded:[231]

We have concluded that the [plaintiff] is entitled to judgment in the sum of $98,000 in total. He is entitled to a judgment in the sum of $82,000 against [K] - that is, $70,000 in respect of the second assault, and $12,000 in respect of the third assault. He is further entitled to judgment in the sum of $28,000 against [the State of] Victoria - this being in respect of transferred liability for the first ($3000), third ($12,000), fourth ($7000) and fifth ($6000) assaults. [The State of] Victoria and [K] are jointly and severally liable in respect of $12,000 - that is, the amount of damages awarded in respect of the third assault. So [K] is solely liable in respect of $70,000 of the judgment sum and the State [of Victoria] is solely liable in respect of $16,000 of the judgment sum.

Some general observations on the operation of s 137 of the Police Act

1. The question of whether Watkins provides any material assistance for present purposes is referred to in [159] below. Returning, now, to s 137 of the Police Act, the operation of s 137(3) and s 137(5) may, in general terms, be illustrated by reference to the torts in this case - battery, false imprisonment, misfeasance in public office, and malicious prosecution. The observations below are general in nature, and the application of s 137 will, in each case, depend upon the facts and circumstances of the case. Also, the following is not intended to be an exhaustive statement of the law with respect to those torts, but rather a broad outline which is sufficient for the purposes of the present discussion.
2. If a police officer, in performing, or purporting to perform, his or her functions, makes physical contact with a plaintiff of a kind capable of constituting a battery,[232] and the police officer does not prove lawful justification, then the tort of battery will be established.
3. The action for false imprisonment protects the interest in freedom from physical restraint and coercion against the wrong of intentionally and without lawful justification subjecting another to a total restraint of movement by either causing that person's confinement or preventing that person from leaving the place in which he or she is. The elements of the tort require proof by the plaintiff of a restraint imposed by the defendant which amounts to imprisonment. Upon proof of such imprisonment, the defendant, to escape liability, needs to establish legal justification. The restraint must be upon a person's liberty to come and go, and must be against his or her will. The factual essence of the cause of action is the placing of a total restraint on the plaintiff's movement.[233] Although false imprisonment is a species of trespass to the person,[234] it need not involve the use of actual force or direct physical contact. Any restraint upon a person's will so great as to induce the plaintiff to submit, may be an arrest 'without imposition of hands'. In this species of trespass, words such as 'I arrest you' are sufficient.[235] An identification of the period of false imprisonment is necessary to determine the nature and extent of the wrong suffered by the plaintiff, and the damage sustained by reason of the false imprisonment.[236]
4. Unlike in relation to the tort of negligence, actual damage or injury is not a necessary element in the torts of battery and false imprisonment - where violation of the person's dignitary interest is sufficient to warrant redress.[237]
5. The action for misfeasance in public office aims to prevent public officials from maliciously abusing their power.[238] In Mengel, Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ accepted that the tort of misfeasance in public office is committed where damage is suffered as a result of an act done by a public officer, where the public officer knows the act is done beyond power and involves a foreseeable risk of harm.[239] Their Honours added that there was 'much to be said for the view that ... misfeasance in public office is not confined to actual knowledge but extends to the situation in which a public officer recklessly disregards the means of ascertaining the extent of his or her power'.[240] Brennan and Deane JJ said, in effect, that the mental element in the tort is satisfied where the public officer engages in the impugned conduct with the intention of inflicting injury, or with knowledge that there is no power to engage in that conduct and that it is calculated to produce injury, or where the public officer acts with reckless indifference as to the existence of power.[241]
6. The tort of malicious prosecution involves maliciously, and without reasonable and probable cause, instituting a groundless criminal prosecution. The distinction between malicious prosecution and false imprisonment lies in whether the restraint on the plaintiff's liberty is directly imposed by the defendant (acting either personally or by his or her agent), or whether there is interposed the exercise of an independent discretion. If the plaintiff has been wrongfully arrested and is taken before a magistrate who remands the plaintiff in custody, the proper remedy for the initial arrest is false imprisonment, but there is no liability for the period of confinement subsequent to the remand, unless it be for malicious prosecution.[242]
7. As malice is an ingredient of each of the torts of misfeasance in public office and malicious prosecution, the police officer will be liable under the common law[243] for those torts, and s 137(3) will not protect the police officer from an action in tort. The State will not be liable under s 137(5), or the common law, for the commission of those torts.
8. In relation to battery, if the police officer acts without malice or corruption, the State will be liable (s 137(5)), but no action will lie against the police officer (s 137(3)). On the other hand, if the police officer acts with malice or corruption, the police officer will be liable under the common law, and s 137(3) will not protect the police officer from an action in tort. The State will not be liable under s 137(5) or the common law.
9. Where the unlawful restraint involves the application of force, the initial act of restraint may be a battery, and the initial act of restraint and the continuation of the restraint may constitute the elements of the tort of false imprisonment. It is, at least theoretically, possible that a malicious act of battery may be committed at the start of, or in the course of, the restraint which is actionable for the tort of false imprisonment, without the whole of the restraint being malicious. That is because there may, eg, be no intention to cause harm to the plaintiff by the continuing restraint, and no knowledge or reckless indifference on the part of the officer that the restraint is beyond power. In that event, the police officer will be liable for the battery constituted by the initial, malicious, application of force under the common law and s 137(3) will not protect the police officer from an action in tort. The State will be liable for the ensuing and continuing non-malicious false imprisonment under s 137(5).
10. Where, however, the restraint on the plaintiff's liberty is imposed with malice, such as where the arrest itself is done with malice, and continues without change, the proper inference may be that the whole of the detention whilst under arrest is tainted by malice.
11. A judgment could not be entered against police officers, in respect of whom, by force of s 137(3), an action does not lie. Nor could a judgment be entered against the State if it were not liable under the common law and no liability arose under s 137(5).

The operation and application of s 137 in this case - disposition of the appeal

1. The proper construction of s 137(3) and s 137(5) has been outlined in [128] - [138] above. There is nothing in s 137(3) and s 137(5), read in the context of the language and structure of s 137 as a whole, or in the context of s 137 and s 138 read together, or in the context of the Police Act as a whole, which reveals an intention by the legislature to alter the common law rule of solidary liability as it would otherwise apply to the liability of the State under s 137(5). Nor, when regard is had to the historical considerations referred to earlier, or the apparent mischief sought to be remedied by s 137, is there any reason to suppose that the legislature intended to introduce, without using the language of proportionality or apportionment, a regime for the apportionment of damages between, on the one hand, police officers who are liable under the common law who receive no protection under s 137(3), and the State whose liability arises under s 137(5).[244]
2. With regard to Watkins, it is true that the apportionment undertaken by the court in that case is not inconsistent with the approach contended for by the State in this appeal. However, ultimately, Watkins is of no assistance for present purposes. It deals with a different statute. The proper construction of the Victorian statute was not, apparently, in issue in that case, and the basis for undertaking the apportionment was not explained in the reasons of the court. The other cases referred to by the State are similarly of no assistance.
3. Nor do we accept the State's contention that s 137(5) on its proper construction, conveys the negative command that the State 'is not liable for a tort' that 'results from' anything done by a police officer with corruption or malice. There is no basis, in the statutory text, context or purpose, for reading a negative stipulation or meaning into the language of the positive liability provided for by s 137(5). That is because s 137(5) in effect creates a new statutory liability for the State which operates independently of the immunity at common law. In our view, s 137(5) means what it says - no more and no less.
4. In this case, in relation to Ms Atoms, there is no, or no successful, challenge to the findings that:
   1. Each of the non-malicious batteries by Officer Clark and the unknown police officers was a cause of her back injury.
   2. Each of the non-malicious batteries by Officer Clark and the unknown police officers and the non-malicious false imprisonment for the second period (after she was arrested) was a cause of her psychiatric injury.
5. The result is that the State is liable for all damages awarded as compensation[245] for her pecuniary[246] and non-pecuniary[247] losses arising from her back injury and her psychiatric injury. Insofar as the torts involving malice by the police officers were also causative of her injuries, the police officers are without the protection of s 137(3) and are liable to pay her compensatory damages as well as (in their case) exemplary damages. But their concurrent liability for the losses suffered by Ms Atoms does not alter or undermine the statutory imposition of liability on the State for the non-malicious tortious acts of the police officers.
6. In relation to Dr Cunningham, there is no, or no successful, challenge to the judge's findings that the non-malicious battery by the unknown police officers was a cause of his psychiatric injury. The above observations apply equally to Dr Cunningham. The State is liable for all damages awarded as compensation in respect of that injury. That conclusion is confirmed by, but not dependent upon, the further consideration that Dr Cunningham's false imprisonment after being bundled into the police van and taken to the police station was not done with malice.[248]
7. It follows that grounds 1 - 6 of the State's appeal in substance have no merit. As a consequence, ground 7 also has no merit.

1. There was an application by the State at the hearing of the appeal, to extend the grant of an earlier stay of the primary judge's orders. The earlier decision ordering the stay of the orders is The State of Western Australia v Cunningham.[249] The court, at the conclusion of the hearing of the appeal, granted the application for an extension until the determination of the appeal. We joined in the making of that order because we were of the view that the matters that had weighed in favour of a stay on the earlier occasion continued, in general terms, to apply.[250]

1. For these reasons, the appeal should be dismissed. As counsel for the cross-appellants said, in effect, that the cross-appeal falls away if the appeal is dismissed, the cross-appeal should also be dismissed.

1. I have read the draft reasons for decision of Buss P and Murphy JA. I am also of the view that the appeal should be dismissed, broadly for the same reasons as their Honours give. However, as the path of reasoning by which I have reached that conclusion differs a little from that taken by their Honours, it is appropriate to set out my own reasons for dismissing the appeal.
2. Buss P and Murphy JA have summarised the issues which arose for determination in the primary decision, the findings of the trial judge, the trial judge's determination of the award of damages to each plaintiff, the orders made following the trial, the grounds of appeal and cross appeal, and have set out the terms of s 137 and s 138 of the Police Act 1892 (WA). It is unnecessary for me to duplicate that material.
3. At the heart of the appeal is the question of the proper construction of s 137(5)(a) of the Police Act and in particular, whether that section displaces the operation of the common law principle of solidary liability. For the reasons which follow, I am not persuaded that s 137(5)(a) of the Police Act operates in that way.

The proper construction of s 137(5)(a)

1. The issue of the construction of s 137(5)(a) which is raised by this appeal has not been judicially considered in this State. I agree with the reasons given by Buss P and Murphy JA that neither the decision in Watkins v State of Victoria,[251] nor any of the other authorities on which the State placed reliance, assist in determining the proper construction of s 137(5)(a) of the Police Act.
2. Discerning the meaning of s 137(5)(a) therefore requires an orthodox exercise in statutory construction. That exercise must begin and end with a consideration of the meaning of the statutory text. However, the meaning of the statutory text must at all times be considered in its context, which includes both the legislative history and existing state of the law, and the mischief which the statute was intended to remedy.[252]

The ordinary meaning of the words used in s 137(5)(a)

1. In the present context, two key issues arise in relation to the construction of s 137(5)(a): what it means to be 'liable for a tort' and the meaning of the phrase 'results from'.
2. Section 137(5)(a) provides that the Crown 'is liable for' certain kinds of torts, namely those that result from anything done by a member of the Police Force, without corruption or malice, while performing or purporting to perform their functions.
3. The word 'liable' has several different meanings, and will take its particular meaning from the context in which it appears.[253] The various meanings of the word 'liable' include 'exposed or subject to, or likely to suffer from (something prejudicial)'; 'subject to the operation of (any agency)'; 'likely to undergo (a change of any kind)' or simply 'likely'.[254]
4. In a legal context, the word 'liable' is often used to mean 'bound or obliged by law or equity, or in accordance with a rule or convention'; 'answerable'; 'legally subject to'; and 'accountable'.[255] The different meanings of the word 'liable' are illustrated by two cases. In Hall v Bonnett,[256] the Full Court of the South Australian Supreme Court considered the meaning of a provision[257] concerning recovery for multiple tortfeasors. Chief Justice Napier and Abbott J noted that the provision in question in that case used the word 'liable' in two different ways. First, it was used to mean 'answerable or responsible'; and secondly, it was used to mean 'adjudged liable'.[258] Their Honours observed:[259]

In this sense it seems to us that 'liable' comprehends the state of a wrongdoer from the time of the fault committed to the point at which his liability is established and quantified by the judgment, and, beyond that, to the point at which it is discharged whether by release or payment or otherwise ... .

1. The meaning of the word 'liable' in the context of a provision in workers' compensation legislation concerned with an employer's right of indemnity was considered in Tickle Industries Pty Ltd v Hann.[260] Chief Justice Barwick, with whom McTiernan J agreed, noted that the word 'liable' could mean able 'to be sued' but concluded that in the context in which it was used,[261] the word meant 'legally responsible, that is to say, it describes the person who by his act or omission caused the compensable injury and thus was legally responsible for it and for the payment of damages appropriate to it'.[262]
2. Returning to s 137(5)(a), the word 'liable', in the context in which it is used, is capable of meaning either 'able to be sued' or 'legally responsible' in the same sense as was discussed in Tickle Industries. The immediate statutory context supports the conclusion that it bears the latter meaning, for the following reasons.
3. First, in s 137(5)(a), the Crown is 'liable for a tort'. The Crown is not made liable for any 'conduct' of a police officer. Its responsibility is confined to legal responsibility for a 'tort'. That is a shorthand reference to the common law's category of civil causes of action based on legal 'wrongs' and which are known as torts. The phrase 'liable for a tort' is conclusory. That is, the conduct of a police officer will only constitute a tort once a Court finds that that conduct meets the legal criteria for one of the torts recognised by the law. That suggests that the word 'liable' means more than just 'able to be sued', and instead encompasses legal responsibility for conduct in fact found to constitute a tort.
4. Secondly, the phrase 'the Crown is liable for a tort' in s 137(5)(a) can be contrasted with the phrase 'an action in tort does not lie' in s 137(3). Had the Parliament intended that 'liable' in s 137(5)(a) meant only 'able to be sued', a similar phrase to that used in s 137(3), such as 'an action in tort lies against the Crown', could instead have been used. The use of the phrase 'is liable for a tort' suggests that s 137(5) was intended to do more than enabling the Crown to be sued.
5. Thirdly, s 137(6) refers to the 'Crown's liability under subsection (5)'. The word 'liability' also has a range of meanings, including 'the condition of being liable or answerable by law or equity', 'the condition of being liable or subject to something, apt or likely to do something' and 'that for which one is liable; esp the debts or pecuniary obligations of a person or company'.[263] In s 137(6), the word 'liability' clearly refers to an obligation to pay damages. The subsection is directed to the possibility that, by virtue of s 137(5), and as a result of an action in tort brought against the Crown, the Crown may be the subject of an order for the payment of damages to a plaintiff. Subsection 137(6) limits that aspect of the Crown's responsibility for the tort by making clear that the Crown's liability 'does not extend to exemplary or punitive damages'.
6. In my view, therefore, the word 'liable' is used in s 137(5)(a) of the Police Act to convey the meaning that the Crown is legally responsible for a tort committed by a police officer (which results from the conduct of the police officer in the circumstances described in s 137(5)(a)) and thus that the Crown is able to be sued for that tort, that its responsibility for that tort will be adjudged by the application of relevant common law principles and statutory provisions, and in the event that that action succeeds, that the Crown will be responsible for the payment of compensatory damages for any injury or loss suffered by a plaintiff for which the tortious conduct of the police officer was a material cause. In short, the word 'liable' in s 137(5) encompasses all of the features of legal responsibility for a tort - from susceptibility to an action for damages for a tort, through to an award of compensatory damages to a plaintiff, and recovery of those damages from the Crown.
7. Under s 137(5)(a), the Crown is not made liable for any and all torts committed by police officers. Rather, it is only liable for a tort 'that results from' anything done by the police officers without corruption or malice in the performance or purported performance of his or her functions as a police officer. The word 'result' means 'to proceed as a consequence from actions, circumstances or premises; to be the outcome'.[264] The phrase 'results from', like the phrase 'result of', indicates the need for a connection between the conduct of the police officer, and the outcome, which is the conclusion that a tort was committed.[265] In other words, the Crown will be liable for a certain legal outcome - the characterisation of conduct as constituting the commission of a tort - which is a consequence of the conduct of a police officer in performing his or her functions, provided that conduct did not involve corruption or malice.

1. As I have indicated, in my view, the phrase 'liable for a tort' in s 137(5)(a) conveys that the Crown's responsibility for the tortious conduct of a police officer, in the circumstances described in s 137(5)(a), will be determined in accordance with any relevant common law principles, and statutory provisions, concerning actions in tort.
2. The common law has developed principles for determining whether a plaintiff's damage was caused by one tortfeasor, or multiple tortfeasors, acting jointly or severally. Joint tortfeasors are responsible for the same wrongful act - the same tort - leading to the plaintiff's damage, whereas the independent tortious acts of different tortfeasors may combine to cause the same loss or damage suffered by a plaintiff.[266] In the latter case, to establish a defendant's liability for his or her loss or damage, the plaintiff need show only that a tortfeasor's tortious conduct was one cause of the plaintiff's loss or damage, in that it 'caused or materially contributed to' the plaintiff's injury or loss.[267]
3. Even though multiple tortfeasors may have caused the same damage suffered by a plaintiff, a defendant whose tortious conduct caused or materially contributed to the loss or damage suffered by a plaintiff will be liable to compensate the plaintiff for the whole of that loss or damage. That is known as the principle of solidary liability.[268]
4. One consequence of the principle of solidary liability is that a court will not apportion the compensatory damages awarded as between each tortfeasor, in order to reflect the extent of the defendant's responsibility for the plaintiff's damage or loss. (In Western Australia, this aspect of the principle of solidary liability has been legislatively displaced in some circumstances.[269] However, that legislation has no application in the circumstances of this case.)
5. The corollary is that a plaintiff can be compensated for all of his or her damage by an award against only one of several concurrent tortfeasors.[270] Historically, the common law position was that a defendant generally had no right to contribution from any other tortfeasor whose tortious conduct also caused the plaintiff's damage and loss. However, legislation has modified that principle, so that a tortfeasor may now recover contribution for the compensatory damages awarded to a plaintiff from any other tortfeasor who is, or would, if sued, have been liable, in respect of the same damage suffered by the plaintiff.[271] That legislation also permits a plaintiff to pursue more than one action for the damage caused to him or her by the tort or torts of multiple tortfeasors, provided that the damages awarded against each defendant do not exceed the total amount at which the plaintiff's compensatory damages were first assessed.[272] However, different tortfeasors may be subject to different awards of damages in circumstances where exemplary damages are awarded against some tortfeasors but not others.[273]
6. In the present case, s 137(6) and s 138(2) make clear that the Crown will not be required to pay any exemplary or punitive damages. That is undoubtedly because an award of exemplary or punitive damages is not made to compensate a plaintiff for the damage he or she has suffered, but to punish a defendant for conduct showing a conscious and contumelious disregard for the plaintiff's rights and to deter that defendant from committing similar conduct in the future.[274] The existence of those provisions necessitates that any award of exemplary or punitive damages must be the subject of an order against the individual police officer concerned. However, neither s 137(6) nor s 138(2) indicate that the principle of solidary liability, in so far as it concerns awards of compensatory damages, is excluded or modified in relation to the Crown's liability for a tort under s 137(5)(a).
7. Save to the extent that it is displaced by statute, the principle of solidary liability applies as part of the common law applicable to actions in tort.[275] In my view, nothing in the language of s 137 as a whole, or in s 137(5)(a) in particular, displaces the application of the principle of solidary liability in relation to actions brought against the Crown for torts resulting from the conduct of police officers.

Contextual considerations - legislative history and purpose

1. The legislative history concerning the insertion of s 137 and s 138, in their present form, into the Police Act, supports the construction of s 137 set out above.
2. Prior to the enactment of s 137 and s 138 of the Police Act in their present form, s 138 of the Police Act incorporated section H of the Shortening Ordinance 1853 (16 Vict No 11),[276] which, in summary, provided that no action would lie against an officer of police, a policeman or a constable, for anything done in carrying the provisions of the Police Act into effect, unless there was 'direct proof of corruption or malice'. That immunity from suit was supplemented by s 53K of the Police Act, which provided that a police officer was not civilly liable for anything done or omitted to be done in good faith or in connection with the performance or purported performance of his or her functions under Part VA of the Police Act.[277]
3. Sections 137 and 138 were inserted into the Police Act by the Acts Amendment (Police Immunity) Bill 1999 (WA) (Bill). According to the speech given by the then Minister for Police on the second reading of the Bill, the Bill was directed to the following purposes. The Parliament sought to replace the existing legislative provisions, which were regarded as antiquated and unable to adequately protect police officers. Changes in statute and common law had given rise to questions which had arisen about the application of those provisions. The Minister's speech made clear that s 137 was intended to leave no doubt that police officers cannot be sued in tort for conduct in the performance of their functions, provided that they do not act with malice or corruptly. The Minister made this purpose clear, when he observed that the Bill would 'provide the protection necessary for police officers to carry out their lawful duties in the firm knowledge that they will not be held liable for the consequences of any of their lawful actions, unless they are acting in a corrupt or malicious manner.'[278]
4. In addition, the Minister for Police made clear that the Bill did 'not preclude an innocent third party from seeking compensation for any injury or loss arising from an action of a member of the Police Service'.[279] The Minister clearly regarded s 137 as achieving a similar outcome to 'vicarious liability legislation' which protected persons (such as public servants) paid by the State to provide services to the community, and who acted in good faith.[280] In this respect, s 137(5) confers a significant benefit on a third party who suffers damage or loss as a result of the tortious conduct of a police officer, which was not corrupt or engaged in with malice. While a police officer is immune from civil action for that tort (under s 137(3)), the Crown is made liable for the tort which results from that police officer's conduct. In that respect, s 137(5) constituted a significant departure from the common law position which had previously applied. At common law, the Crown is not vicariously liable for torts committed by police officers because they are charged with an independent legal duty in the execution of which they exercise a discretion.[281]
5. No protection from civil action is granted to a police officer who commits a tort as a result of conduct involving malice or corruption. However, in cases of that kind, s 138 is clearly directed to protecting the position of the plaintiff in the event that he or she is unlikely to be able to recover an award of damages from the police officer. In that case, the plaintiff may request that the Treasury pay that amount, and if the Treasury makes such a payment, it is then permitted to recover the damages as a debt from the police officer concerned.[282]
6. This legislative history confirms that s 137 should be regarded as a beneficial provision. It both protects police officers from civil actions in tort in certain circumstances, and permits plaintiffs to pursue civil actions against the Crown for torts committed by police officers without malice or corruption. Consequently, to the extent that there is any ambiguity in the meaning of s 137(5), it should, within the limits of the language used, be construed beneficially, and so as to give the fullest relief which the fair meaning of its language will allow.[283]
7. On the construction of s 137(5) which is advanced by the State (see [198] - [199] below), a court would be required to apportion the total damages awarded to a plaintiff by way of compensation between the Crown and any police officers sued personally in tort, and who are found to have caused the plaintiff's damage. That would have the result that the plaintiff would bear the risk that a police officer may not be able to meet any award of damages apportioned to him or her. While the plaintiff would be entitled to request the Treasury to pay those damages, s 138(3) does not confer an entitlement on a plaintiff to that payment. To my mind, that outcome undermines the beneficial purpose of s 137(5).
8. The construction of s 137(5) set out at [181] is consistent with the beneficial purpose of s 137(5). The Crown will be subject to an order for judgment in the full amount of any compensatory damages awarded to the plaintiff. The Crown will be entitled to seek a contribution from any other tortfeasor who caused the plaintiff's damage, but it will bear the risk that no such contribution may ultimately be paid.

Why the State's contentions as to the meaning of s 137(5) cannot be accepted

1. The State contends that the word 'liable' in s 137(5) means 'is answerable for damage caused by' the torts referred to.[284] Counsel for the State submitted that the Crown is only answerable for damage caused by the torts referred to in section 137(5), and those torts do not include torts committed by a police officer with corruption or malice.[285]
2. Counsel for the State also submitted that s 137(5) 'operates to make the Crown liable only for the proportion of damage caused by acts done without corruption or malice'.[286] Counsel submitted that s 137(5) is a statutory provision 'which operates to make one class of tortfeasor liable for a proportion of damage different from another class of tortfeasor'[287] and that:

where police officers have acted with malice, section 137(5) requires that damage caused by acts done with malice be apportioned from damage caused by acts done without malice. A separate judgment should be given against the State in the apportioned sum.

This apportionment exercise is necessary to ensure that, pursuant to section 137(5), the Crown is only held liable for acts done by police officers without corruption or malice.[288]

1. I am unable to accept the State's contentions as to the meaning of s 137(5), for the following reasons.
2. First, the construction advanced by the State does not reflect the ordinary meaning of the words used, understood within the surrounding statutory context. The Crown is not made liable for 'damage,' it is made liable for a 'tort'. While the liability of a defendant for the 'damage' (that is, the injury or loss) suffered by a plaintiff, which was caused by the defendant's tortious conduct, is an aspect of a defendant's liability for a tort, there is nothing in s 137(5) to support the conclusion that the phrase 'liable for a tort' should be construed so narrowly.
3. Secondly, the import of the State's contentions is that s 137(5) excludes the application of the common law principle of solidary liability. Absent clear words or a strong basis for a contrary implication, legislation will be presumed not to alter common law doctrines.[289] There is nothing in the language used in s 137(5) to indicate, with sufficient clarity, that common law principles applicable to actions for a tort, including the principle of solidary liability, are excluded in relation to the Crown's liability for the tort of a police officer. The preferable construction of s 137(5) is that which is consistent with the application of common law principles, including the principle of solidary liability.[290]
4. Thirdly, despite the State's assertion that s 137(5) requires that damage caused by acts done with malice be apportioned from damage caused by acts done without malice, there is nothing in the language of s 137(5) to indicate that such an apportionment of damages is required. Equally, there is nothing in the text of s 137(5) to provide any guidance as to how that apportionment is to be undertaken. That may be contrasted with other legislation which expressly modifies the principle of solidary liability and requires apportionment of damages among concurrent tortfeasors.[291] By way of example, s 137(5) says nothing about whether the apportionment for which the State contends depends on multiple tortfeasors being sued in the one action, and it says nothing about whether apportionment is required whether or not all concurrent wrongdoers are parties to the action. The absence of any legislative guidance as to the process of apportionment is significant. In light of other statutory apportionment provisions, which reflect careful and deliberate policy reform,[292] it is improbable that the Parliament would have intended to require the courts to engage in an exercise of apportionment without any guidance as to the principles to be applied in doing so.
5. It is no answer that in this case the trial judge, in her reasons for decision, reached a view on the apportionment of compensatory damages amongst each of the defendants. The learned trial judge did so only in the belief,[293] which she later concluded was mistaken,[294] that she was required by s 137(5) of the Police Act to undertake that apportionment.
6. Fourthly, the State's contentions appear to equate an order that the Crown pay damages to compensate a plaintiff for the whole of the loss or damage sustained by that plaintiff as a result of a tort committed by a police officer, with the imposition of liability on the Crown for other torts committed by police officers with malice or corruption which may also have been a cause of the same damage suffered by the plaintiff. That is not the case. Under s 137(5), the operation of the principle of solidary liability means that the Crown will be responsible for the full extent of the damage caused by a tort for which it is made liable. However, s 137(5) does not detract from the Crown's ability[295] to pursue a contribution from any other tortfeasors, whether police officers or others, whose torts may also have been a material cause of the plaintiff's damage. The liability of police officers who have committed torts with malice which have also materially contributed to the plaintiff's injury and loss remains entirely unaffected.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

RESEARCH ASSOCIATE TO THE HONOURABLE JUSTICES MURPHY & MAZZA

[1] Cunningham v Traynor [2016] WADC 168.

[3] The background is taken from the findings made by the judge in the primary decision, unless otherwise indicated.

[15] Primary decision [461] - [467], [473] - [474], [484] - [485].

[16] Primary decision [28], [198] - [199], [475] - [477].

[17] Primary decision [478] - [480].

[19] Primary decision [205], [528] - [529].

[20] Primary decision [207] - [208], [212].

[24] Primary decision [32], [220] - [222], [530].

[28] Primary decision [588], [590], [662], [1150].

[29] Primary decision [37], [228] - [229].

[30] As to the pushing of Ms Atoms in the overall sequence of events, see primary decision [198] - [199], [201] - [215], [228] - [229], [587] - [588], [602], [699] - [670].

[31] Primary decision [42] - [43], [583].

[32] Primary decision [44] - [45], [654], [669], [741] - [742].

[34] Primary decision [719] - [720], [743] (Ms Atoms), primary decision [726], [744] (Dr Cunningham) and primary decision [48] (both).

[39] Primary decision [66] - [68], [70].

[40] Primary decision [2], [789], [791].

[44] Further amended statement of claim, pars 19, 60(a); BB 270, 282.

[45] Further amended statement of claim, pars 25(a), 28(b), 60(b); BB 271 - 272, 282.

[46] Further amended statement of claim, pars 33, 60(c); BB 273, 282.

[47] Further amended statement of claim, pars 38, 60(d); BB 273, 282.

[48] Further amended statement of claim, pars 39, 41, 60(e), 60(f); BB 273 - 274, 282.

[49] Further amended statement of claim, pars 46, 60(g); BB 275, 282.

[50] Further amended statement of claim, par 62; BB 282.

[51] Further amended statement of claim, par 87; BB 289. See also the reference to 'claim' in primary decision [1069].

[52] It should be reiterated, however, that by the end of the trial it was common ground that she was not arrested until after she had been tasered: primary decision [592].

[53] Further amended statement of claim, par 88; BB 289.

[54] Further amended statement of claim, pars 67 - 70; BB 284 - 285.

[55] Further amended statement of claim, pars 71 - 74; BB 285 - 286.

[56] Further amended statement of claim, pars 91 - 93; BB 290 - 291.

[57] Further amended statement of claim, pars 28(a), (c), 31, 34, 37, 64(a); BB 272 - 273, 283.

[58] Further amended statement of claim, pars 28(b) - (c), 31, 34 - 35, 37, 64(b); BB 272 - 273, 283.

[59] Further amended statement of claim, pars 43, 64(c); BB 274, 283.

[60] Further amended statement of claim, pars 46, 64(d); BB 275, 283.

[61] Further amended statement of claim, par 66; BB 284.

[62] Further amended statement of claim, pars 28(a), 50, 89; BB 277, 276, 290.

[63] Further amended statement of claim, par 90; BB 290.

[64] Further amended statement of claim, pars 75 - 82; BB 286 - 288.

[65] Further amended statement of claim, pars 83 - 86; BB 288 - 289.

[66] Further amended statement of claim, pars 94 - 96; BB 291 - 292.

[68] Primary decision [1153] - [1154].

[70] Primary decision [922], [1101]. Her Honour also said that Dr Cunningham's costs ($600) of the malicious prosecution should be 'apportioned' to the malicious prosecution: primary decision [923].

[73] Primary decision [1070], [1077].

[74] Primary decision [76], [745], [754], [1069] - [1070].

[80] Primary decision [76], [745], [754], [910(c)], [910(d)].

[85] This history is taken from the summary in The State of Western Australia v Cunningham [2017] WASCA 119 [52].

[86] The State of Western Australia v Cunningham [2017] WASCA 119 [52].

[92] Appellant's case, submissions, pars 34, 42, 45; WAB 15 - 16.

[93] WAB 17 - 20. The appellant refers in particular to Barisic v Devenport [1978] 2 NSWLR 111, 116 - 117, 152.

[94] Appellant's case, submissions, pars 49, 68, 71; WAB 17, 19 - 20.

[95] Watkins v State of Victoria [2010] VSCA 138; (2010) 27 VR 543.

[96] Appellant's case, submissions, par 7; WAB 10.

[97] Citing primary decision [762] - [763].

[100] Citing primary decision [788].

[101] Citing primary decision [810].

[102] Appellant's case, submissions, pars 71 - 72, 74 - 82; WAB 20 - 21.

[103] Appellant's case, submissions, pars 110 - 117; WAB 24 - 25.

[104] Appellant's case, submissions, pars 124 - 131; WAB 25 - 26.

[105] Appellant's case, submissions, par 132; WAB 26.

[106] Appellant's case, submissions, pars 134 - 136; WAB 26 - 27.

[107] Appellant's case, minute of substituted orders; WAB 31.

[112] But not with respect to point 14, as her Honour dealt with malicious prosecution separately.

[113] Primary decision [755(a)], [755(c)].

[114] Primary decision [755(b)], [755(d)].

[115] Primary decision [757], [762].

[126] Primary decision [475], [478], [755(a)], [762] - [763], [813(a)].

[127] Primary decision [37], [589], [756], [813(b)].

[128] Primary decision [813(b)], [1070(a)].

[129] Primary decision [743], [745], [813(d)].

[132] Primary decision [61], [813(e)].

[134] Primary decision [215], [479] - [480], [499], [746] - [753], [813(e)].

[136] Primary decision [763], [780], [813(a)], [813(c)].

[137] Primary decision [807], [810], [813(f)].

[140] Primary decision [1046] - [1058], [1075].

[141] Primary decision [829], [1076].

[142] Primary decision [1059] - [1063].

[145] Primary decision [1064] - [1069], [1074].

[147] Primary decision [542], [544], [576], [586], [755(b)], [812(a)].

[148] Primary decision [812(a)], [910(a)].

[149] Primary decision [544], [576], [771], [812(a)].

[150] Primary decision [544], [576] - [584], [586], [812(a)].

[151] Primary decision [710] - [715], [812(b)].

[152] Primary decision [745], [812(c)].

[153] Primary decision [812(c)], [910(c)].

[154] Primary decision [61(b)], [752] - [753].

[156] Primary decision [807], [810], [812(e)].

[158] Primary decision [829], [893].

[159] Primary decision [893], [906] - [907].

[160] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 [4].

[162] British American Tobacco Australia Ltd v The State of Western Australia [2003] HCA 47; (2003) 217 CLR 30 [11].

[163] The Commonwealth v Mewett [1997] HCA 29; (1997) 191 CLR 471, 542.

[164] Mewett (542 - 543); Hogg P, Monahan P J & Wright W, Liability of the Crown (4th ed) [1.3(c)], pages 6 - 7.

[165] Hogg, Liability of the Crown [1(c)], page 7.

[168] Mewett (544 - 545); see also Hogg P, Liability of the Crown [1.3(c)] pages 6 - 8, [6.1(b)] page 152.

[169] Bell v The State of Western Australia [2004] WASCA 205; (2004) 28 WAR 555 [39].

[170] Baume v The Commonwealth [1906] HCA 92; (1906) 4 CLR 97, 119; Ramsey v Larsen [1964] HCA 40; (1964) 111 CLR 16, 27 - 28; Attorney-General for New South Wales v Perpetual Trustee Co Ltd [1952] HCA 2; (1952) 85 CLR 237, 283. See also Northern Territory of Australia v Mengel [1995] HCA 65; (1995) 185 CLR 307, 348; Bell [41].

[171] Haskins v Commonwealth [2011] HCA 28; (2011) 244 CLR 22 [43].

[172] Little v The Commonwealth [1947] HCA 24; (1947) 75 CLR 94, 114; Enever v The King [1906] HCA 3; (1906) 3 CLR 969, 978, 982 - 984, 989 - 990; Attorney-General v Perpetual (249), (252), (283 - 284), (303); Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd [1986] HCA 34; (1986) 160 CLR 626, 637 - 638, 662; New South Wales v Ibbett [2006] HCA 57; (2006) 229 CLR 638 [57]; Jarratt v Commissioner of Police for NSW [2005] HCA 50; (2005) 224 CLR 44 [4] - [5]; State of South Australia v Kubicki (1987) 46 SASR 282, 285 - 286.

[173] Whitfield v De Lauret & Co Ltd [1920] HCA 75; (1920) 29 CLR 71, 81; Pollack v Volpato [1973] 1 NSWLR 653, 655 - 656.

[174] Lamb v Cotogono [1987] HCA 47; (1987) 164 CLR 1, 8 - 10; Uren v John Fairfax & Sons Ltd [1966] HCA 40; (1966) 117 CLR 118, 149; XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd [1985] HCA 12; (1985) 155 CLR 448, 471.

[175] De Lauret (77); Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1 [14], [20].

[176] Cotogono (13); Johnstone v Stewart [1968] SASR 142, 145; Luntz, Assessment of Damages for Personal Injury and Death (4th ed) [1.7.4], pages 75 - 76.

[179] Rookes v Barnard [1964] UKHL 1; [1964] AC 1129, 1226.

[180] Hogg, Liability of the Crown [2.2(d)], page 33.

[182] Cotogono (8); Ibbett [31]; Gray [15].

[184] Crampton v Nugawela [1996] NSWSC 651; (1996) 41 NSWLR 176, 188 - 189; Canterbury Bankstown Rugby League Football Club Ltd v Rogers [1993] Aust Torts Reports 81-246, 62-545; Henry v Thompson [1989] 2 Qd R 412, 415 - 416; Lackersteen v Jones (1988) NTSC 60; (1988) 92 FLR 6, 39 - 42.

[189] Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44.

[190] Carson (55), where the statute provided that damages for defamation 'shall not include exemplary damages', and 'shall not be affected by the malice or other state of mind of the publisher ... except so far as that malice or other state of mind affects the relevant harm'.

[192] Nilon v Bezzina [1988] 2 Qd R 420, 424; Baxter v Obacelo Pty Ltd [2001] HCA 66; (2001) 205 CLR 635 [18].

[193] Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10; (2013) 247 CLR 613 [10]; Barisic (139 - 140).

[195] Hunt & Hunt [10]; Barisic (140). See in this State, the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 (WA).

[197] See, for example, s 5AK(1)(a) of the Civil Liability Act 2002 (WA).

[199] See Trobridge v Hardy [1955] HCA 68; (1955) 94 CLR 147, 148, 154.

[201] Trobridge (162). See also Taylor J (174 - 175).

[202] A v New South Wales [2007] HCA 10; (2007) 230 CLR 500, 531.

[204] Explanatory Memorandum, Acts Amendment (Police Immunity) Bill 1999 (WA) 1 - 3.

[205] Western Australia, Parliamentary Debates, Legislative Assembly, 9 September 1999, 972 - 973 (Mr Prince, Minister for Police).

[209] See [105] - [106], [108] above.

[210] Referred to in [105], [108] above.

[211] Bull v Attorney-General (NSW) [1913] HCA 60; (1913) 17 CLR 370, 384.

[212] Macquarie Online Dictionary definition of 'result' (at 10 September 2018).

[217] Section 123(1) of the Police Regulation Act 1958 provided that a member of the force was 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 force. Section 123(2) of that Act provided that any liability resulting from an act or omission that, but for subs (1), would attach to a member of the force attached instead to the State of Victoria.

[223] Watkins headnote (545), citing [99], [115] - [116], [126], [128] - [129].

[224] Watkins [134] - [136].

[227] Watkins [155] - [160].

[230] Watkins [162] - [163].

[232] See, generally, Sappidden and Vines, Fleming's Law of Torts (10th ed) [2.60].

[233] Darcy v State of New South Wales [2011] NSWCA 413 [141] - [146].

[234] State of New South Wales v Williamson [2011] NSWCA 183 [57].

[235] Fleming's Law of Torts [2.80], pages 37 - 38.

[236] State of New South Wales v Radford [2010] NSWCA 276; (2010) 79 NSWLR 327 [59] - [61].

[237] Fleming's Law of Torts [9.10].

[238] Fleming's Law of Torts [27.140].

[241] Mengel (357) (Brennan J), (370 - 371) (Deane J).

[242] Fleming's Law of Torts [2.90].

[243] All references to the common law are, in the present context, references to the position at common law referred to in [108] above.

[244] Compare Civil Liability Act 2002 (WA), s 5 AK(1)(a).

[245] Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522, 527.

[246] See generally Fleming's Law of Torts [10.60].

[247] See generally Fleming's Law of Torts [10.110].

[249] The State of Western Australia v Cunningham [2017] WASCA 119 (stay decision).

[250] See, in particular, stay decision [81] - [87], [90] - [91] (second sentence).

[251] Watkins v State of Victoria [2010] VSCA 138; (2010) 27 VR 543.

[252] SZTAL v Minister for Immigration and Citizenship [2017] HCA 34; (2017) 347 ALR 405 [14]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41 (2009) 239 CLR 27 [47]; Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 [22]; CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408.

[253] Tickle Industries Pty Ltd v Hann [1974] HCA 5; (1974) 130 CLR 321, 332 (Barwick CJ, McTiernan J agreeing).

[254] Oxford English Dictionary Online.

[255] Oxford English Dictionary Online.

[256] Hall v Bonnett [1956] SASR 10.

[257] Section 25 of the Wrongs Act 1936 - 1951 (SA) provided: 'Where damage is suffered by any person as the result of a tort (whether a crime or not) ... (c) any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tortfeasor or otherwise'.

[258] Hall v Bonnett [1956] SASR 10, 15.

[259] Hall v Bonnett [1956] SASR 10, 16.

[260] Tickle Industries Pty Ltd v Hann [1974] HCA 5; (1974) 130 CLR 321.

[261] Section 22(1) of the Workmen's Compensation Ordinance 1949 - 1968 (NT) provided: 'If an injury in respect of which compensation is payable under this Ordinance is caused under circumstances which appear to create a legal liability in some person other than the employer to pay damages in respect of the injury ... (d) where the workman has received compensation under this Ordinance, but no damages or less than the full amount of the damages to which he is entitled, the person liable to pay the damages shall indemnify the employer against so much of the compensation paid to the workman as does not exceed the damages for which that person is liable'.

[262] Tickle Industries Pty Ltd v Hann [1974] HCA 5; (1974) 130 CLR 321, 331 (Barwick CJ, McTiernan J agreeing).

[263] Oxford English Dictionary Online.

[265] Cf Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568 [37] - [38] (McHugh J), [93] - [94] (Gummow, Hayne and Heydon JJ).

[266] Baxter v Obacelo Pty Ltd [2001] HCA 66; (2001) 205 CLR 635, 646 - 637 (Gleeson CJ & Callinan J); Thompson v Australian Capital Television Pty Ltd [1996] HCA 38; (1996) 186 CLR 574, 580 - 581 (Brennan CJ, Dawson & Toohey JJ).

[267] Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10; (2013) 247 CLR 613, 635 [45] (French CJ, Hayne & Kiefel JJ).

[268] Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10; (2013) 247 CLR 613, 645 [80] (Bell & Gageler JJ); Barisic v Devenport [1978] 2 NSWLR 111, 116 (Moffitt P), 131 (Hope JA), 139 - 140 (Samuels JA).

[269] See, for example, Civil Liability Act 2002 (WA) s 5AK.

[270] See, for example, the discussion in Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10; (2013) 247 CLR 613, 647 [85] (Bell & Gageler JJ).

[271] Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) s 7(1)(c); and see the discussion of the operation of that provision in XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1985] HCA 12; (1985) 155 CLR 448, 469 - 470 (Brennan J).

[272] Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) s 7(1)(b); XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1985] HCA 12; (1985) 155 CLR 448, 459 - 460 (Gibbs CJ, Mason J agreeing at 464, Murphy J agreeing at 464, Wilson J agreeing at 465), 466 (Brennan J); Barisic v Devenport [1978] 2 NSWLR 111, 117 (Moffitt P).

[273] XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1985] HCA 12; (1985) 155 CLR 448, 460 (Gibbs CJ, Mason J agreeing at 464, Murphy J agreeing at 464, Wilson J agreeing at 465), 467 - 468 (Brennan J).

[274] XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1985] HCA 12; (1985) 155 CLR 448, 471 (Brennan J).

[275] Barisic v Devenport [1978] 2 NSWLR 111, 117 (Moffitt P, Hope JA agreeing at 131).

[276] Section H of the Shortening Ordinance 1853 (16 Vict No 11) was preserved by s 47(2) and the Second Schedule to the Interpretation Act 1918 (WA) (repealed) and s 77(4) of the Interpretation Act 1984 (WA).

[277] Part VA of the Police Act was in turn repealed by the Protective Custody Act 2000 (WA) s 30.

[278] Western Australia, Parliamentary Debates, Legislative Assembly, 9 September 1999, 973 (Mr Prince, Minister for Police) (Second Reading Speech in respect of the Acts Amendment (Police Immunity) Bill 1999 (WA)).

[279] Western Australia, Parliamentary Debates, Legislative Assembly, 9 September 1999, 973 (Mr Prince, Minister for Police) (Second Reading Speech in respect of the Acts Amendment (Police Immunity) Bill 1999 (WA)).

[280] Western Australia, Parliamentary Debates, Legislative Assembly, 9 September 1999, 973 (Mr Prince, Minister for Police) (Second Reading Speech in respect of the Acts Amendment (Police Immunity) Bill 1999 (WA)).

[281] Enever v The King [1906] HCA 3; (1906) 3 CLR 969, 976 - 977 (Griffith CJ) and 986 - 977 (Barton J); State of New South Wales v Briggs [2016] NSWCA 344; (2016) 95 NSWLR 467, 481 [51] (Leeming JA, Ward JA agreeing).

[282] Police Act s 138(2) - (4).

[283] Cf Khoury v Government Insurance Office (NSW) [1984] HCA 55; (1984) 165 CLR 622, 638; IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1, 11 (Brennan CJ & McHugh J).

[288] State's submissions [71] - [72].

[289] Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277, 304 (O'Connor J); Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427, 437.

[290] Cf Balog v Independent Commission Against Corruption [1990] HCA 28; (1990) 169 CLR 625, 635 - 636.

[291] Cf Civil Liability Act 2002 (WA) s 5AK.

[292] See the discussion of the recommendations of the Ipp Committee in H Luntz, Assessment of Damages for Personal Injury and Death (2006, LexisNexis Butterworths, Australia) [11.6] 186.

[295] Pursuant to s 7(1) of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA).