TREVITT V. NSW TAFE COMMISSION & ANOR (formerly [2001] NSWCA 348 - now deleted) [2001] NSWCA 363

Could you please contact me or my assistant Mrs Wendy Marsden on 6773 7704 to make an appointment.

I look forward to being of assistance to you. 13 On 30th September 1997, the appellant met with Mr. Binnington and Ms. Steward to discuss the complaint. On the same day, Mr. Binnington sent a further letter to the appellant, in the following terms: Thank-you for calling at my office today and discussing your concerns with Helen and myself. I respect the position you have taken regarding the resolution of this matter. Firstly I must say that I regret that this incident has caused you deep concern and I apologise on behalf of this Institute.

This afternoon I met collectively with Wyn Manners, the teacher involved, and with Helen Steward. This meeting gave me the opportunity to listen to Wyn's description of the role play and the events prior to and immediately after the event. Following her explanation I expressed my concern to her regarding the reality of the role play and how this had affected you as an individual. I pointed out that individual differences in all of our students are important when developing teaching strategies as reactions can be widely varied.

It is apparent to me that the key to this issue is the reality in which the "bandit" role was carried out including the props used. This reality occurred due to the prior training and experiences of the "bandit" and also due to the lack of guidelines given to him by the teacher. Wyn has informed me that she has used this particular role play on many other occasions but never has she experienced such reality induced by the ability of the individual. She accepts that the reality was beyond what she expected and realises that the student was able to put an undefined reality into the role due to a lack of guidelines to the students.

It must be pointed out that at all times throughout the role play it was apparent that the "bandit" was a class member and not disguised in any way and there were a range of anticipated reactions from students. Wyn assures me that your reaction was never anticipated and with the benefit of hindsight would have modified the reality of the role play.

I believe it is worth noting that the subject of Occupational Safety and Security is a very serious one dealing with emergencies in the real world of the hospitality industry where the risks are quite high. The role play was intended to simulate a real occurrence and to be able to deal with feelings and subsequent actions of individuals in such a situation. The debriefing after the event would under most circumstances take care of any concerns of individuals. It would appear that the usual debriefing was not effective for your particular concerns.

To prevent future occurrences of similar events I have taken the following appropriate action: * Wyn has been directed that any planned use of role plays will be advised to her Head Teacher. * Wyn has also been directed to issue strict guidelines to students involved in "surprise" role plays. These guidelines are to be approved by the Head Teacher. * A memorandum has been sent to all Head Teachers advising them of the need to strictly control role plays in order not to cause distress, embarrassment or danger to any participants.

Wyn has expressed to me her regret that you feel you have been adversely affected by the role play and as such wishes to apologise to you. From our discussion Wyn has indicated that she would like to meet with you to personally apologise for the concern that you feel and she looks forward to having a productive teacher/student relationship with you during Term 4.

I am confident that I have taken the necessary action to prevent any repeat of a role play that will cause distress to students. If you wish to further discuss the essence of your complaint please feel free to contact me on 67737705. 14 The appellant completed his course in December 1997, with good results. 15 The appellant first consulted a medical practitioner concerning the incident on 9th April 1998, when at the request of his solicitors he saw Dr. Synott. Dr. Synott's report contains the following history given by the appellant: Angry about an incident that occurred at TAFE in September, 1997. He was attending a hospitality course when the lecturer organised a "mock" hold-up -this was explained with the comment of "the hospitality industry can be very dangerous". The patient was, unsuspectingly, taken as a hostage during this mock hold-up and he found it threatening and humiliating. He was frightened and unsettled by the event. He felt the lecturer had been quite inappropriate in her decision to organise the event and that there should have been some consequences (perhaps even sacking her). He did not raise this directly with her but approached the manager of TAFE, whom he felt was unsympathetic and dismissive of his complaint.

Since that time he has found himself "feeling bad", loss of confidence and "they made me feel weak". He has tended to be a little avoidant in going out and confronting things. Although wishing some major action to be taken against the teacher, and perhaps the manager, he has not been prepared to confront them, although he did write a letter. He also acknowledged some sense of depression, but denied any suicide ideation. 16 Dr. Synott recorded the following impression and diagnosis: Impression. 33 year old unemployed man presents with various symptoms, which he directly relates and attributes to an event/mock robbery in which he was an unwilling participant, at TAFE eight months ago.

The patient willingly described himself as "passive" and on several occasions acknowledged his lack of consistency and discipline and that is certainly highlighted in the history given by him. He has become phobic and avoidant, a tendency he displayed well and truly before the event and has looked to others to react as he feels they "should". He blames others for his sense of "they made me feel weak".

Although acknowledging a sense of depression he did not want antidepressants.

Differential diagnosis. Axis 1. Adjustment reaction with anxiety and depression Axis 2. Personality. Dependent traits, query some schizoid traits. External locus of control Limited personality resources Immature defence mechanisms - projection, distortion. 17 Subsequently, the appellant saw another psychiatrist Dr. Jungfor on 10th November 1998. That report sets out the following history: Mr Marcus Trevitt indicates that in 1997 he was undertaking a TAFE course at Armidale. He indicates that this course was in the area of hospitality and it was while undertaking one of the subjects that Mr Trevitt feels that he was injured. Mr Trevitt was undertaking a 13 week TAFE course for those individuals who are long term unemployed. It was approximately 10 weeks into the course and he was learning the safety and security module when the incident happened. Mr Trevitt can clearly recall the incident and can picture it within his mind with minimal effort. Mr Trevitt indicates that he remembers an individual by the name of Grahame left the room. He thought that Grahame must have gone out of the room to have a cigarette however the next thing he recalls is that Grahame returned to the room in an Army jacket with the hood up, wearing gloves. Mr Trevitt indicates that Grahame screamed to class, "everyone on the ground". Mr Trevitt can recall clearly that he knows that it was Grahame, a fellow student and believes that he thought that something may have happened to Grahame to encourage him to act this way. Immediately following Grahame returning to the room and telling everyone to get on the ground Mr Trevitt can recall that he was extremely confused and didn't know what was going on. He was aware that no-one knew what was happening. He can recall having the gun put to his head and felt that his entire body went hot and he was extremely fearful. Subsequent to this he felt feelings of embarrassment and humiliation. He can recall Grahame thumping around the room asked people for wallets. He was lying on the floor, he didn't move and he was concerned that he may be punched or kicked in the head by someway. He knows that a girl was being used as a shield and that the women looked scared and he can recall this quite clearly. At some stage that class recognised as a. group what was happening, however Grahame left and Marcus felt that everyone was confused and paralysed and uncertain as to what they had experienced. Grahame was apparently carrying a gun, it was a mock gun but it looked exactly like that of a pistol. He remembers when Grahame had left the room that he was just simply lying there, that people were wondering what was going on and he was waiting for people to move. He was fearful that Grahame would return and that Grahame may shock them in some way by returning and becoming increasingly aggressive and violent. Apparently 4-5 minutes later Grahame returned to discuss the incident. Mr Trevitt clearly recalls the teacher laughing and smiling following the incident and that she discussed with them wanting them to experience a situation of an armed hold up. He believed that the situation was real and that he can recall the teacher laughing at him. He is also aware that another woman thought the situation was real and that she ceased the course on that day. Following the incident Mr Trevitt can recall being extremely anxious and jittery , he wondered what he could do about the situation. He recalls during the situation feeling quite useless, ashamed and embarrassed. Following this he felt very depressed.

After the incident Mr Trevitt described increasing feelings of depression and a sense of hopelessness. He became socially withdrawn and isolated. He was unable to talk to people and wanted to deal with the situation himself. He constantly ruminated regarding the incident. He attempted to return to college to complete his course and sought out the manager of the course because he felt the situation needed to be addressed. However he was unable to successfully return to TAFE although he has completed the course. He feels the actions of the TAFE manager with regards to addressing the situation were inappropriate and that the TAFE did not handle the situation seriously. Apparently 5 days after the incident Mr Trevitt saw the college counsellor who indicated to him what his rights were but no treatment was offered to him. 18 Dr. Jungfor expressed the following opinion: OPINION 17. Mr Marcus Trevitt is a 34 year old individual who is somewhat avoidant of social situations and isolative gentlemen who was involved in a mock hold up situation in the course of his studies. As a consequence of how the situation was handled and the behaviour of his teacher Mr Trevitt felt at one stage quite fearful for his life and subsequently humiliated and embarrassed that such a situation should have arisen. Subsequent to this he developed an avoidance of social situations. Initially he had nightmares, recurrent intrusive recollections of the incident, hypervigilence and avoidance of the situation which was consistent with that of a post traumatic stress disorder. However these symptoms have now largely resolved and he is left with some mild residual psychological symptoms that are best considered that of an adjustment reaction. Mr Trevitt almost certainly was pre morbidly someone is excessively vulnerable to the development of such a condition and it has improved significantly despite the lack of any form of appropriate psychological intervention. It is however my recommendation that he receive some psychological treatment for this condition to improve his recovery from the situation at hand. It is my opinion that Mr Trevitt would not be in the current circumstances that he is in and his psychological state were he not to have been exposed to this situation. He should be acknowledged and rewarded for the recovery that he has made to this point in time and it would be my expectations that Mr Trevitt would be able to show significant recovery with appropriate treatment. There is no doubt however that the experience that he has had was quite unnecessary and resulted in a significant degree of trauma and distress to him.

DECISION OF PRIMARY JUDGE 19 The appellant gave evidence that he believed the incident was genuine until some time after Graham had left the room; and that when he was on the floor, he was afraid that Graham would kick him if he raised his head. The primary judge found the appellant's evidence unsatisfactory, and rejected the appellant's evidence on both these points. The primary judge found that the appellant believed that the mock hold-up was real only for a brief instant, referring inter alia to the consideration that he would not have reached up to remove the metal object against his head if he had believed that Graham was a genuine armed robber; and she found that by the time the appellant was on the floor, he knew that Graham was role playing and had no fear that he would be kicked. 20 The primary judge found that at no time did the appellant hold any apprehension of any imminent harmful or offensive conduct, and held that there was no assault and no false imprisonment. 21 The primary judge noted that if there had been assault or false imprisonment, there would be questions concerning the liability of Ms. Manners and TAFE, and of damages. 22 As regards the former, the respondents conceded that Graham was their agent in as much as Ms. Manners in the course of her employment by TAFE had appointed Graham as her agent to play the role of a bandit; but they made no admission in respect of the scope of his authority as he played his role. The primary judge was not satisfied that Graham's actions were within the scope of his ostensible or real authority or instructions. 23 As regards damages, the primary judge found that the appellant suffered no actual damage, so that she would have awarded nominal damages only. The primary judge analysed the medical evidence. She accepted Dr. Synott's diagnosis, and noted his silence about any causal relationship between the incident and the appellant's psychological problems. The primary judge rejected Dr. Jungfor's opinion to the effect that the appellant's psychological symptoms had been caused by the incident, inter alia because the primary judge found the history given to Dr. Jungfor was inaccurate. The primary judge dealt similarly with Dr. Phillips' opinion to similar effect. 24 The primary judge was not satisfied that the appellant suffered any injury from the event; and found that his concern was the affront to his dignity, and the perceived inadequacy of the response of Ms. Manners and TAFE to his complaint. 25 The primary judge found there was no liability in negligence, because no damage was suffered. 26 The primary judge found that this would not be a case for exemplary damages in any event. Although she considered that Ms. Manner's conduct in authorising the surprise mock hold-up was silly, and that TAFE's system was inadequate in that TAFE let it happen, the primary judge considered that the response to the complaint was appropriate and adequate.

GROUNDS OF APPEAL 27 The appellant relies on the following grounds of appeal: 1. The Appellant was denied procedural fairness in that there were adverse findings made against him when such adverse findings were either not the subject of cross-examination by the Respondent, or were not otherwise challenged by the Respondent, and were not the subject of any discussion or warning during the course of submissions by counsel.

Her Honour erred in law in failing to hold that upon the evidence there was no assault, false imprisonment or negligent infliction of nervous shock.

Her Honour erred in fact and in law in finding that Graham was an agent who acted outside the scope of his agency when the Respondent conceded that Graham was appointed their agent to play the role of the bandit in the mockup up exercise.

There was no evidence to support Her Honour's finding that Graham acted outside the scope of his agency, authority or instructions when carrying out the role of the bandit in the mock-up exercise.

Her Honour's finding that the Appellant knew that the hold-up was a role play at an early point of time in the exercise was against the evidence and the greater weight of evidence .

Having found that there was a battery committed upon the Appellant, Her Honour was wrong as a matter of law in not having made the finding that there was an assault which had been committed upon the Appellant.

Her Honour's finding that the Appellant did not hold an apprehension of any imminent harm or offending conduct is glaringly improbable and against the greater weight of evidence.

Her Honour misdirected herself in relation to the intention required on the cause of action relating to false imprisonment.

Her Honour was wrong as a matter of law and fact in finding that the Appellant did not suffer any damage with respect to the cause of action based upon negligent infliction of nervous shock.

Her Honour's finding that the Appellant suffered no damages to any of the causes of action upon which she relied was glaringly improbable and against the greater weight of the evidence.

Her Honour's indication as to the general damages which she would have awarded, had she found in favour of the Appellant, is manifestly inadequate.

Her Honour's finding that in the circumstances she would not have awarded exemplary damages had she have found in favour of the Appellant is manifestly wrong. 28 I will deal with these grounds under five headings.

ATTACK ON PRIMARY FINDINGS (GROUNDS 1, 5 AND 7) 29 In the appellant's written submissions, it was submitted first that there had been no challenge by cross-examination or otherwise to contest the version of events given by the appellant; to suggest that the appellant was an unreliable historian or witness and, in particular, to suggest that he knew that the exercise was not real prior to the time that the gun was placed to his head; to suggest that varying and untrue versions had been given to psychiatrists; to suggest that the evidence of the psychiatrists should, for that reason or otherwise, be rejected; or to suggest that any injury to the appellant may have been caused by his affront at the letter of 30th September 1997. 30 It was submitted accordingly that it was procedurally unfair of the primary judge (1) to find that the appellant realised after a brief instant that it was a mock hold-up; (2) to find that the appellant at no time had any apprehension of imminent harm; and (3) to reject the psychiatrists' opinions as to causation of psychological injury because of alleged inconsistencies in histories given to them. The written submissions referred to Stead v. State Government Insurance Commission (1986) 161 CLR 141; Escovar v. Spindaleri (1986) 7NSWLR 51; Goktas v GIO of NSW (1993) 31 NSWLR 684 at 700; Beale v. GIO of NSW (1997) 48 NSWLR 430. 31 The written submissions also contended that these three findings were against the weight of evidence. These submissions were elaborated by Mr. Capelin QC in oral submissions before us. He took us to a number of findings by the trial judge concerning the appellant's evidence, which he submitted were extreme and wholly unjustified. 32 In my opinion, it was plainly suggested to the appellant in cross-examination that he knew that there was not a real pistol held against his head when he reached up to remove it; that the occasion for these proceedings was anger and a perceived affront to his dignity, not psychological injury, and that the real issue was money; and that he had completed his course successfully, with the loss of at most one day's attendance. These suggestions involved the contention that the version of events given by the appellant in the witness box and to the psychiatrists was incorrect, that the appellant was an unreliable historian and witness, and that the incident did not cause psychological injury. The incorrectness of histories given to the psychiatrists was not squarely put; but in my opinion the challenges made to the appellant's account necessarily amounted to a challenge to those histories, and laid the groundwork for attacking the psychiatrists' opinions. 33 For those reasons, in my opinion the charge of procedural unfairness is not made out. 34 Turning to the question whether the findings, and in particular the three crucial findings to which I have referred, were against the weight of evidence, I note that these findings all depended crucially on the primary judge's assessment of the appellant's credibility. 35 Having regard to apparent inconsistencies in the appellant's evidence, the circumstance that the appellant quickly recognised that it was a fellow student carrying out the purported hold-up, the previous occurrence of role plays, and the appellant reaching up to push the "gun" away from his head because it was uncomfortable, I am unable to find that there was appealable error in the primary judge making a finding that the appellant realised, after a brief instant, that this was a mock hold-up. 36 As regards the finding that there was never any apprehension of imminent harm, the same factors apply, coupled with the finding that the appellant quickly realised that it was a mock hold-up. On the other hand, it is plain that the appellant was pushed to the ground physically; and even accepting that the appellant realised that it was role play, this amounted to some physical harm and indicated that Graham was willing and able to inflict such harm in his role play. Furthermore, even though the appellant said in evidence that he felt safe on the ground and was happy to be there, the fact is that he had been physically pushed to the ground, and it is by no means inconsistent with his recognition that this was role play that he would be afraid of being kicked. 37 However, having regard to the advantageous position of the trial judge, I am not satisfied that there is appealable error in relation to this finding of fact either. 38 In my opinion, these findings of primary fact do undermine the psychiatric opinions, and accordingly there is no appealable error in the finding that causation of psychological injury was not made out.

ATTACKS ON THE PRIMARY JUDGE'S FAILURE TO FIND ASSUALT, FALSE IMPRISONMENT, OR NEGLIGENT INFLICTION OF SHOCK (GROUNDS 2, 6, 8 AND 9) 39 In the light of the primary findings of fact, in my opinion it cannot be suggested that the primary judge was in error in so far as she found that Graham did not assault the appellant in the sense of arousing the apprehension of imminent harmful conduct, that the appellant was not subject to total restraint of movement, and that there was no negligent infliction of shock. The finding that the appellant at no time was under any apprehension of imminent harmful conduct is not in my opinion inconsistent with the appellant realising that this was a mock hold-up only after a brief instant: the primary judge presumably considered that that brief instant did not involve any formation of apprehension of imminent harmful conduct. However, this still leaves the actual placing of a metal object against the appellant's head and the pushing of him to the ground. The primary judge found that these acts would amount to battery, but went on to say that that was not the appellant's claim. 40 However, the Statement of Claim alleged that the plaintiff had "a dangerous weapon held to his head" and "was forced to lie face down on the ground". The plaintiff's final submissions before the primary judge contained the following: Any assault may also be established by an unlawful application of physical force. The plaintiff had a gun placed on his head and was physically thrown to the ground and was thereby assaulted. 41 Similar submissions were repeated on appeal. 42 In my opinion, the fact that these acts were described in the Statement of Claim as amounting to assault rather than battery would not justify the primary judge's assertion that battery was not claimed. These acts, assuming they were not consented to, amounted to trespass to the person, describable in common parlance as assault, even though the term "battery" may be more technically correct. In my opinion, it is plain that the appellant did not consent to these acts. In my opinion, the primary judge was in error in failing to find that Graham had committed trespass to the person, whether described as assault or battery, upon the appellant.

ATTACK ON FINDING THAT GRAHAM ACTED OUTSIDE THE SCOPE OF HIS AGENCY (GROUNDS 3 AND 4) 43 It is common ground that Ms. Manners instigated the role play, and that TAFE is liable for this conduct of hers in the course of her employment. 44 For the appellant, it was submitted that there was evidence supporting an inference that what Graham did was within the instructions given to him by Ms. Manners. It was plain that the instructions contemplated a realistic occurrence, inter alia from the circumstance of surprise and lack of warning. Ms. Manners was present throughout what happened, made no attempt to interfere, and subsequently commended Graham on his performance. No suggestion was made that he exceeded his instructions, except the suggestion in the letter of 30th September that the realism of the occurrence went beyond what was expected. This letter however tendered an apology, and gave an assurance that, in the future, steps would be taken to control this type of occurrence. 45 In my opinion, those matters would be sufficient to support an inference that what Graham did was within his instructions. Furthermore, in my opinion the primary judge was in error in applying Jones v. Dunkel (1959) 101 CLR 298 to the appellant's failure to call Graham. In my opinion, Graham, although not in the respondents' camp, could not be regarded as being in the appellant's camp or a witness whom the appellant could be expected to call. He was a witness who could be expected to have his own interests in giving evidence, which would be quite likely to conflict with those of the appellant. This is a very different case from cases such as Ho v. Powell [2001] NSWCA 168, where it was the party himself who did not give evidence, even though he was present in court ready to give evidence, and where there was only one issue on which he could have given evidence. 46 Accordingly, in my opinion the primary judge was in error in two respects: firstly, in failing to find there were matters from which an inference could be drawn, and secondly, in applying Jones v. Dunkel against the appellant. In my opinion this Court should reach its own conclusion. In my opinion, Jones v. Dunkel applies against the respondents, because Ms. Manners could have given evidence as to her instructions to Graham. In my opinion, the inference should be drawn that what Graham did was within his instructions, and accordingly the respondents are liable for the battery committed by Graham.

ATTACK ON THE FINDING OF NO DAMAGE (GROUNDS 10 AND 11) 47 Although I have found there was no error in the primary judge's finding that there was no causation of the psychological problems described by the medical experts, in my opinion there was plain error in the finding that there was no damage at all. 48 I have upheld the primary judge's findings that the appellant's psychological difficulties were not caused by the incident, and the appellant is not entitled to damages for dissatisfaction with TAFE's subsequent conduct. However, there being no contrary view expressed by the primary judge, I would accept that the appellant was caused substantial upset and that as a result of this incident, he felt he had been singled out and humiliated. In so far as the appellant's injured feelings continued because they were not allayed by remedial conduct, as distinguished from actually being caused by TAFE's later conduct, he is entitled to compensation for this as well. I do not think any attempt should be made to draw any distinction between distress caused by the battery and distress caused by the rest of the incident. 49 The distress suffered by the appellant was in my opinion due to his having a vulnerable personality, and would probably not have otherwise been suffered; but this does not in my opinion prevent damages being awarded for that distress for the tort of trespass to the person. Liability for trespass to the person does not require proof of foreseeability of damages, and in my opinion once liability for that tort is established the wrongdoer must take the victim as he finds him. 50 Given the approach I have taken in this judgment, I think it is common ground that this Court should attempt to assess damages rather than send the matter back for a new trial. Doing the best I can on the basis I have indicated, I would assess the damages for the appellant's injured feelings, distress and affront to dignity at $2,000.00.

ATTACK ON THE DENIAL OF EXEMPLARY DAMAGES (GROUND 12) 51 It was submitted that the incident showed the clearest disregard for the rights, interests, welfare and dignity of the appellant, so that an award of exemplary damages was justified. 52 In my opinion, there was wrongful conduct by the respondents, but it was not contumelious: it flowed from a misguided view as to what would be helpful to the students being instructed. It caused damage to the appellant, to a large extent because of his vulnerable personality. I do not think a case is made out for exemplary damages.

CONCLUSION 53 For those reasons, I would propose that the appeal be allowed, that the judgment below for the respondents be set aside, and that there be judgment for the appellant against each respondent for $2,000.00. I would add that in awarding that sum, it is intended that it include interest up to the present. 54 MASON P: I agree. 55 HEYDON JA: I agree with the reasons for judgment of Hodgson JA save in respect of battery and damages. 56 Assuming that the plaintiff did not consent to the placing of a hand on his shoulder, the placing of a metal object against his head and the pushing of him to the ground, those acts were batteries. There was no allegation in terms in the Statement of Claim of any "battery". Paragraph 11 said: During the course of the armed holdup, the plaintiff was assaulted Particulars of Assault The plaintiff had the dangerous weapon held to his head. The plaintiff was forced to lie, face down, on the ground. The plaintiff feared that he may be subject to physical violence at any time during the mock armed holdup. At no time did the plaintiff consent to being subjected to a mock armed holdup.

Paragraph 13 said: "The plaintiff claims that the second defendant is liable for assault … ." 57 To describe the acts in question as assaults corresponds with the ordinary use of language, but is, at least in the law of tort as distinct from criminal law, legally erroneous. Francis Trindade and Peter Cane, The Law of Torts in Australia (3rd ed, 1999) defined battery thus (at p 27): A battery is a direct act of the defendant which has the effect of causing contact with the body of the plaintiff without the latter's consent.

They define assault thus (at p 42): An assault is any direct threat by the defendant that places the plaintiff in reasonable apprehension of an imminent contact with the plaintiff's person either by the defendant or by some person or thing within the defendant's control.

See also John G Fleming, The Law of Torts (9th ed, 1998) pp 29-33. This legal error is repeated in Ground 6 of the Notice of Appeal: Having found that there was a battery committed upon the Appellant, Her Honour was wrong as a matter of law in not having made the finding that there was an assault which had been committed upon the Appellant. 58 I agree with Hodgson JA that the erroneous description in the Statement of Claim of the placing of a metal gun against the plaintiff's head and the pushing of him to the ground as assaults but not batteries does not mean that a claim for battery was not made. The duty of the plaintiff was to plead material facts. He did so; though only in the particulars and not, as he should have, in the substantive paragraphs of the Statement of Claim. The ascription to the relevant acts of a legal characterisation different from that which they in truth bore did not mislead the defendants and cannot by itself prevent the plaintiff from recovering whatever remedy justly flows from his successful proof of those facts. 59 However, the form of the Statement of Claim does not conclude the matter. Soon after the start of the final addresses the following exchange took place between the trial judge, counsel for the defendants (Mr Weinstein) and counsel for the plaintiff (Mr Eburn) (Black 39R-41F): HER HONOUR: For the moment assuming that Mr Trevitt knows that Graham is faking it, when he puts his hand upon Mr Trevitt's shoulder, that is by definition an assault is it not? Whether it goes anywhere is another matter, but that has to be an assault?

WEINSTEIN: No your Honour with respect no that's not right. It may in certain circumstances be a battery but when he touches him, that -- HER HONOUR: Because there's no apprehension as to fear? WEINSTEIN: The apprehension as to fear -- HER HONOUR: So he's got to believe -- WEINSTEIN: Indeed, it's not just an apprehension of fear, it is an imminent apprehension of physical contact or fear. HER HONOUR: So there's no assault unless he then believes that he is going to be subjected to some physical violence. WEINSTEIN: That's correct. I think my friend and I are at one about that. HER HONOUR: So the belief is fundamental to the assault, as it is to everything else. WEINSTEIN: Absolutely. Quite your Honour. HER HONOUR: The nervous shock claim is pleaded by reference to as it were that which constitutes the false imprisonment, not that which constitutes the semi exercise, is that not the case Mr Eburn, so if I were to find that the exercises were singularly stupid and unauthorised and so forth, that would assist you not one bit. I have to find a false imprisonment or an assault or a battery to found the nervous shock action. Or is it sufficient for the nervous shock action that there's a role play with or without consent, whether anything happens in it? EBURN: Yes your Honour, I mean the whole - the role play, the false imprisonment, the case is pleaded in the alternatives I would have submitted your Honour, assault, false imprisonment, negligence, and one of them would be sufficient to establish the causal link between what happened -- HER HONOUR: Right but let's assume that the nervous shock action is substantially irrelevant if there's assault and false imprisonment, because it's an overlap, and if there isn't it's - an overlap, you've already got up on those two so it doesn't really make much difference. On the other hand, if you fail on those two, they don't do you any help on the nervous shock action, so relevantly the nervous shock action is only that which is neither an assault nor a false imprisonment, in order for it to go anywhere. EBURN: I must confess I'm not following you your Honour. By the nervous shock action, do you mean an action in negligence? HER HONOUR: Yes. You have three separate causes of action do you not? EBURN: Yes, and our submission is that the damage, namely the psychological injury that flowed from any - or all of them. HER HONOUR: Well they overlap. EBURN: Yes. HER HONOUR: So deleting that which is the overlap, because it's irrelevant, you either win or lose on both points. Delete the assault, delete the false imprisonment. EBURN: So that all that is left is the negligence. HER HONOUR: So the only thing you're left with is the negligence. The nervous shock action is then confined exclusively to that which does not constitute either assault or false imprisonment, because it's either a double dip or a double failure, so put it to one side. Then it is particularised in respect of 7 through 10, and that alone, is that right? And the weapons are either assault and imprisonment or nothing. EBURN: Yes. 60 That passage of the argument might be summarised as follows. Counsel for the defendants accepted that the acts commencing with the placing of Graham's hand on the plaintiff's shoulder might in certain circumstances be a battery, but not an assault, because there was not an imminent apprehension of violence. He said he and counsel for the plaintiff were at one about that. Counsel for the plaintiff did not deny that. The trial judge said that belief in imminent subjection to some physical violence was "fundamental to the assault, as it is to everything else." Counsel for the defendants agreed and counsel for the plaintiff did not indicate dissent. The trial judge then raised the topic of whether it was necessary to find false imprisonment, assault or battery to found the nervous shock action, or whether the role play alone sufficed. Counsel for the plaintiff said that the causal link could be established by assault, false imprisonment or negligence - but did not mention battery. Thereafter the debate proceeded on the assumption that there were only three causes of action under consideration - assault, false imprisonment and negligence - and on the further assumption that at least the assault and false imprisonment claims depended on a fear of subjection to physical violence. A tort of battery does not depend on the existence of any fear of that kind. Hence, though the defendants did not before this Court rely on the passages just discussed, it would appear that any claim in battery was abandoned by the plaintiff, and the trial judge was correct to say "that is not the plaintiff's claim". 61 If there was a tortious battery on which the plaintiff is entitled to rely, the question arises of what damages should be awarded. The trial judge's assessment of $1 was correct. The trial judge found that the plaintiff only believed in the reality of the hold-up for a brief instant. That instant had passed by the time of the assumed battery. The trial judge found that the plaintiff had no apprehension of any imminent harmful or offensive contact. There is no finding that the physical contact was anything other than utterly trivial except to the extent that the weight of the metal on the plaintiff's skull was uncomfortable. As soon as the plaintiff experienced that sensation, he pushed the metal away from his skull. While a plaintiff complaining of a battery is entitled to recover damages for injured feelings, distress and affront to his dignity, those consequences must flow from the battery, and not from non- tortious behaviour. The plaintiff has not demonstrated that his injured feelings, his distress, and the affront to his dignity, flowed from the battery, as distinct from other aspects of the exercise that took place. In any event, even apart from that circumstance, the assessment of the trial judge, which, apart from the factors mentioned above, was based on what she correctly described as "the defendants' unqualified apologies when complaint was made", appears entirely sound. [Submissions ensued on costs]

62 MASON P: Since the Court has been unable to agree on the costs issues I invite Hodgson JA to deliver the first judgment. 63 HODGSON JA: It has been drawn to the Court's attention in relation to costs that the defendant made offers of settlement prior to the hearing at first instance: firstly, an offer made on 19 June 2000 of $20,000 inclusive of costs; and secondly, an offer made on 31 July 2000 of $32,000 plus costs. Apart from the making of those offers, the result as to costs in the District Court, had the District Court given the decision that this Court has given, would in all probability have been that each party pay its own costs of the District Court proceedings. The offers would probably have meant that the appropriate order in the District Court would have been that each party pay its own costs until the making of the first of those offers, and that the appellant pay the respondents' costs thereafter. 64 There is authority to the effect that, in relation to offers of compromise in the Supreme Court no new offer of compromise is required to entitle the party making the offer to have the benefit of it in relation to appeals: Ettingshausen v Australian Consolidated Press (1995) 38 NSWLR 404. That decision does not apply in terms to this situation, which does not relate to a formal offer of compromise but rather a settlement offer by letter. 65 In my opinion, the Court has some discretion in relation to the question of costs of the appeal notwithstanding the offers by letter. No new offer was made after the judgment, and the plaintiff was left in a situation where he had, not only a decision against him, but an order that he pay the whole of the costs of the proceedings. The plaintiff could challenge that order only by appealing, and as I have said no further offer was made which in any way could have alleviated the plaintiff's situation. In my opinion, it would be appropriate to make an order having the effect that the appellant get some or all of the costs of the appeal. Both parties at the appeal have been represented by senior counsel, and it may be that the costs of the hearing of the appeal would not be less than the costs of the hearing at first instance and may well have exceeded it. 66 It seems to me that the Court has the alternative of making costs orders to some extent favourable to one party and to some extent favourable to the other, and setting them off, or making an order that each party bear its own costs of the whole proceedings and of the appeal. I think there are practical considerations favouring the latter course and that is the course which I favour. I would propose the following costs order. Each party to bear its own costs of the proceedings and of the appeal, and also an order that the costs order made by the primary judge be set aside. 67 MASON P: I agree with those orders although my reasons are slightly different. To my mind the pre trial Calderbank offer carries very little continuing weight in the exercise of judicial discretion as regards the costs of the appeal. But the reason why I would not give the appellant his full costs of the appeal lie rather in the fact that the appellant has achieved comparatively little in the appeal compared to what he was seeking; and secondly, in the fact that it is appropriate to set off whatever costs rights apply in the appeal against the costs orders that ought to be made as regards the trial. Looking at the trial situation I think there is every reason to enforce the rules with respect to Calderbank offers and that clearly establishes a notional credit in the State's favour. Having regard to the impracticalities of calculating and setting off the costs and the broadly discretionary nature of the exercise in which we are presently engaged I agree with the orders proposed by Hodgson JA. 68 HEYDON JA: I disagree with the orders proposed as to the costs of the trial. I agree with the orders proposed by the defendants. The first of these was that the plaintiff would get no costs up to the date of the offer but that the defendants would not be liable for any. The defendants could have asked for more in my opinion but they did not. The second order which the defendants wanted was indemnity costs from the date of the first letter. 69 As to the costs of the appeal, in my opinion the plaintiff should pay the defendants' costs. The appeal, if it were to have any prospect of substantial success beyond that which it has achieved, which is slight, would have to have overturned credit based findings of the trial judge. This was, in the circumstances of this case, a near impossible task. The appellant who wishes to launch an appeal to recover a sum as low as $2,000.00 should pay the costs of that appeal unless significantly greater success was likely. Hence, in my opinion, the plaintiff should pay the defendants' costs of the appeal. 70 MASON P: The order of the Court by majority are those proposed by Hodgson JA. 71 HODGSON JA: The orders of the Court are: 1. Appeal allowed with costs. 2. Set aside judgment for the respondents and the costs order in their favour. 3. Judgment for the appellant against each respondent for $2,000.00. 4. Order that each party bear its own costs of the proceedings and the appeal. ***********

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