Walker & Anor v Hamm & Ors

Supreme Court of Victoria|2009-07-22|Before: Smith J

ASSAULT AND BATTERY - police officers - claims for aggravated damages by Estate of person assaulted and for aggravated and exemplary damages by person assaulted and person not present at assault.

COSTS - offers of compromise and Calderbank letters - discontinuance of claim alleging conspiracy - failure to establish lost opportunity claim - Operation of Order 26.08(2)(a) - relevant considerations.

For the Second, Fourth, Fifth, Sixth, Seventh, Ninth and Twelfth Defendants

1 I refer to my reasons in these matters published on 19 December 2008. As noted in those reasons, several issues remain to be determined, notably the claims for aggravated and exemplary damages and costs. Also outstanding is the issue of interest. As to the application of s 123 Police Regulation Act 1998, it is my understanding that its application is not a live issue between the parties.[1]

2 Written submissions were received from the parties in March 2009. Further submissions and evidence relating to the interest issue were received on 18 and 27 May 2009.

Aggravated damages - the positions of the plaintiffs and the first defendant.

3 The plaintiffs seek aggravated damages from the defendants for themselves and for the estate of Marcia Walker. Their counsel submitted that Donald Walker and Marcus Walker should each be awarded aggravated damages in the sum of between $150,000 and $200,000. Counsel also submitted that the estate of Marcia Walker should be awarded aggravated damages of between $50,000 and $100,000.

4 The second defendant, Carter, concedes that, on the facts that have been found, aggravated damages are payable to Donald Walker. He makes the point that no direct evidence was given by Donald Walker as to the impact on his feelings resulting from the way in which the wrongs were inflicted upon him. Carter concedes, however, that there were aggravating factors in the incident. He refers to the fact that the assaults and batteries occurred in Donald Walker's home and in the presence of his mother and that they occurred at the hands of public officials who are sworn to uphold the law. He accepts that they caused Donald Walker to be shocked and fearful for his safety. He submits that in Donald Walker's case, an award of aggravated damages of $50,000 would be appropriate. He denies any liability for aggravated damages in relation to Marcus Walker.

5 As to the claim for aggravated damages for the estate, Carter relies upon the amendments to the statement of claim in the course of the trial deleting paragraph 9 which contained the claim for both aggravated and exemplary damages for the estate. At the time counsel for the plaintiffs stated that those claims could not be made because of the provisions of the Administration and Probate Act. Later counsel for the plaintiffs partially resiled from this position and revived the claim for aggravated damages by the estate. The estate's pleadings were not formally re-amended but counsel for the defendants raised no objection at the time to the claim proceeding in the absence of such amendment and no prejudice can be identified. I proceed on the basis that the claim of the estate is alive but opposed by the first defendant.

Aggravated damages - the positions of the plaintiffs and the second defendant

6 The plaintiffs rely upon the admission in paragraph 1 of the defence of the State of Victoria that the 2nd to 13th defendants were at all material times acting as its servants and agents. They submit that as a result, all damages against Carter are recoverable against the State of Victoria. In its defence, the second defendant went on to plead that it denied liability for "exemplary and/or punitive damages". Its present position is that it has no liability for the aggravated damages sought. I proceed on that basis.

7 The plaintiffs submit that any damages awarded to them and the estate for aggravated damages (and to them for exemplary damages) should be awarded as to 50% as against Carter and 50% as against the State of Victoria.

8 As counsel for the State of Victoria has submitted, the grounds for the apportionment sought are not apparent. Counsel submitted that the State of Victoria had no direct liability for damages. Its liability arose vicariously by virtue of the admission of liability under s 23(1)(b) of the Crown Proceedings Act. As counsel also pointed out, although there have been adverse findings in respect of other police members in respect of the events, the plaintiffs did not plead that the State of Victoria bore any vicarious liability for the acts of the 2nd to 13th defendants other than the vicarious liability arising from the acts of the second defendant Carter (and Sesin) in the incident. There being no allegation in the pleadings in their final state alleging any tortious act of any other police member or branch, with the exception of Sesin[2], the State cannot be liable except for the actions of Carter and Sesin.

9 Any orders that are made should reflect the situation that 100% of the damages awarded against Carter should be entered against him and also entered against the State of Victoria on the basis of its vicarious liability for his actions.

The positions of the plaintiffs and the first defendant

10 The plaintiffs seek exemplary damages for themselves but not for the estate of Marcia Walker. Counsel submitted that Donald Walker and Marcus Walker should each be awarded exemplary damages of between $300,000 and $500,000.

11 For Carter, it was submitted that no award for exemplary damages should be made against Carter in respect of Donald Walker or Marcus Walker.

12 The second defendant does not concede that any liability arose in respect of the claims for exemplary damages. It advanced submissions relating to particular details of the claims of the plaintiffs and the estate. They are discussed below in dealing with the claims.

Approach to the claims for aggravated and exemplary damages

13 Counsel for Carter has submitted that the claims for aggravated and exemplary damages arise out of the same circumstances and that it would be appropriate to make one award, not two, if liability for those damages is found against Carter. In advancing this argument, counsel relied upon New South Wales v Ibbett[3]. In that case, the High Court cited with approval the following passage from the judgment of Speigelman CJ in the Court of Appeal decision in that matter

"In this regard it is relevant to note that the matters to which I have referred as justifying an award of exemplary damages are also pertinent, as is often the case, to an award of aggravated damages. The difference is that in the case of aggravated damages the assessment is made from the point of view of the plaintiff and in the case of exemplary damages the focus is on the conduct of the defendant. Nevertheless, it is necessary, as I have noted above to determine both heads of compensatory damages before deciding whether or not the quantum is such that a further award is necessary to serve the objectives of punishment or deterrence or, if it be a separate purpose, condemnation". [4]

"In cases where the same circumstances increase the hurt to the plaintiff and also make it desirable for a Court to mark its disapprobation of that conduct, the court may choose to award one sum which represents both heads of [aggravated and exemplary] damages and no element more than once".

[5]

14 The plaintiffs reject the submission that one award only should be made and have argued that it is appropriate for the Court to separate the issues and make separate awards of damages for aggravated and exemplary damages.

15 In resolving the debate, it is necessary to give separate consideration to the respective claims for aggravated and exemplary damages in any event. In doing so, it is necessary to commence by considering the findings already made and the particular matters raised by the parties about features of the incident itself which are relevant to each of the claims for aggravated and exemplary damages. They are of particular relevance to the claims of Donald Walker for aggravated and exemplary damages and the estate of Marcia Walker for aggravated damages.

16 I will consider first the issues raised in the individual claims for aggravated damages of Donald Walker, and the estate of Marcia Walker, in that order. I will then consider the claim of Donald Walker for exemplary damages. Finally, I will consider the claims of Marcus Walker for aggravated and exemplary damages. They raise significantly different issues.

The claims of Donald and Marcia Walker's estate

17 I refer to the findings as to what occurred contained particularly in paras. 11.4, 12.5(c) to 12.5(g) of the reasons already given and the findings therein as to the reasons for the conduct in the incident of Carter and Sesin in paragraph 13.2.[6]

18 The parties attempted to highlight certain aspects of the evidence about the incident.

19 As to the impact on Donald Walker, the plaintiffs rely upon the findings as to what occurred to argue that Carter, in concert with Sesin, unlawfully and viciously assaulted Donald Walker in his home and that this caused serious physical and psychological damage. Counsel submitted that at the time Donald Walker was assaulted he was attempting to assist his elderly invalided mother, who had among other things vision problems, after Carter had shone a torch in her eyes. Counsel argued that the assault of Donald Walker was an act of aggression and was cowardly in that it continued after he was handcuffed. Counsel further submitted that in his presence, Marcia Walker was injured by an assault by Carter or indirectly as a result of the unlawful assault by Carter in concert on him. It was also put that she suffered significant physical and emotional injuries when she made her legitimate attempt to prevent Carter assaulting Donald Walker. Counsel also argued that Carter and Sesin were young and fit and were sworn to keep the peace and enforce the law.

20 As to the impact of the incident on Marcia Walker, counsel for the plaintiffs submitted that she was, at the time, 67 years of age, on a stick and had restricted mobility. Counsel submitted that Carter shone the torch into her eyes and that this was an act of aggression.[7] Counsel also submitted that she witnessed Donald Walker being unlawfully and viciously assaulted when he attempted to come to her aid. Counsel repeated the submission that the assault was cowardly. It was put that she bravely and lawfully attempted to stop the attack on her son but was injured either as a consequence of an unlawful assault by Carter on her when she made that attempt or because Carter resumed his unlawful assault in concert upon Donald Walker in the course of which she was injured. Counsel argued that what occurred was either a cowardly assault by a fit young police officer on her or a consequence of a vicious unlawful assault by two policeman on Donald Walker. The officers were sworn to keep the peace and enforce the law. Counsel submitted that she was distressed not only by her own injuries and their consequences but also by the impact of the injuries upon Donald and Marcus Walker.

21 As to the whole incident, Counsel for the plaintiff also drew attention to the finding that Sesin had no control over Carter[8] and Carter was out of control from the start.[9]

The incident and reasons - Defendants' Submissions

22 Counsel for Carter made detailed submissions concerning the evidence about the incident. The State of Victoria, however, did not do so. It dealt with the evidence briefly. Save where its submissions raised issues similar to those raised for Carter, it has not joined in Carter's submissions as to the incident itself. Where it has made specific submissions they are noted below.

Counsel for Carter(4) first described the incident as being confined to "the torch incident" which was described as

"...a single episode involving an assault and battery[1] by Carter and Sesin that occurred in five or so minutes[10] between Sesin applying a headlock with his left arm to Donald Walker's neck and Donald Walker's subsequent handcuffing. In the five minute period Walker was either on his feet or on the ground. Whilst he was on his feet he was in Sesin's headlock. During this phase Carter struck Donald Walker on the head with his baton. He also struck Donald Walker twice with his baton on the left side of his upper body. He did so as hard as he could. One of Carter's baton strikes fractured one of Donald Walker's ribs. Sesin struck Donald Walker using his baton a number of times around his legs.

Donald Walker was on the ground early on in the exchange. Sesin's headlock ceased to be applied. Carter and Sesin gained a position of control. Whilst on the ground, Donald Walker received from Carter a number of further baton blows. Both Sesin and Carter applied their knees to his back and Carter dropped on Walker's back with his knee which was a probable cause of the second rib fracture. Sesin held Walker's hair. Donald Walker received a number of knocks to his head and a number of hits to various parts of his body. Carter and Sesin handcuffed Donald Walker just before, and as, other police arrived. Carter stamped on Donald Walker's right elbow after he was handcuffed."

Counsel for Carter also noted, in referring to the "torch incident", that no claims were advanced by Donald Walker in relation to the matters preceding the torch light shining in the eyes of his mother. They included the manner of entry, the property damage to Donald Walker's fixtures and chattels such as the front door and the passageway wall and the broken glass on the picture, and the force with which the constables came through the door. Counsel also noted that no claim was advanced concerning the shirt tearing incident.

23 As to the finding that Donald Walker's elbow was stamped on after the handcuffing it is put that there was no finding that this act was intentional rather than inadvertent and there was no finding of any other assault after the handcuffing.

24 As to the extent of the violence, counsel for Carter sought to highlight the fact that Donald Walker's evidence was not accepted that he was struck with batons while he was handcuffed or that Carter struck or punched Marcia Walker. It is put that the only violence that occurred after the handcuffs were applied was the stamp to the elbow.

(b) Reasons and explanations for the conduct.

Counsel for Carter submitted that Donald Walker's case was that Carter and Sesin acted with "excessive zeal". Reliance was placed on alleged findings that Carter had "totally mishandled the situation" and had approached the use of force "without any thought or precision". Counsel referred to the finding that Carter could have restrained Donald Walker while he was standing in the headlock in accordance with his training, with a full Nelson without resorting to his baton. Counsel argued that this supported a conclusion that he used "reckless force" but that it should not be concluded that he was motivated by actual malice or ill will towards Donald Walker. Counsel for the State of Victoria supported this submission, arguing that the primary explanation for Carter's conduct at the scene was "fear and anxiousness" rather than "some malicious state of mind". In support of this proposition, counsel referred to the finding that Carter and Sesin were young and inexperienced and, from the outset, were scared and highly anxious in dealing with the situation.

• Lack of predetermination and pressure of the event

Counsel for Carter also submitted that the attack on the Walkers was not "premeditated or predetermined". They submitted that it was "poor judgment that led to an escalation of the force used and the prolongation of the event." In assessing the conduct of the police, Carter's counsel emphasised that regard should be had to the statements in the authorities concerning the reality of police decision making occurring without the opportunity for "mature or deliberate reflection"[11]and with the "pressure of events and the agony of the moment"[12]. Counsel for the State of Victoria joined in these submissions arguing that the events evolved over a short period of time with little opportunity for contemplation and that whatever Carter's failings, there was an absence of premeditation. Counsel for both defendants submitted that the tortious acts took place in the sort of atmosphere described by Connor, J. in Macintosh v . Webster[13] - described as circumstances of "excitement, turmoil and panic".

Counsel for Carter referred to Carter's evidence that domestic violence situations were the worst things a policeman had to go to and that Carter was very scared from the outset. Counsel submitted that this evidence was explicitly accepted. I note that Counsel for the State of Victoria adverted to this issue in slightly different terms stating that the court had accepted the proposition that a scene of domestic violence or potential domestic violence is a situation of high risk for police members called to attend. Counsel for Carter sought to rely upon the finding that Donald Walker was angry at the police and Ruth Ham, and would not have attempted to hide his anger. Relying on these matters, counsel submitted that they may help to explain Carter's attempt to maintain "complete physical control of the situation".

Counsel for Carter submitted that Carter's failure "to perceive and understand that the violence came overwhelmingly from him", could be explained on the basis of his inexperience and bad decision making. It was put that he had a subjective belief that very substantial force was necessary to control the situation.

25 The plaintiff responded to the foregoing submissions of the defendants directed to the incident itself and the reasons and explanations for what occurred.

Counsel for the plaintiffs argued that the submission for Carter was inconsistent with the findings and, that, in particular, Carter's account of the incident, commencing with the reason for attending the premises was rejected as lies. Counsel referred to the findings that Carter had lied in evidence given by him that

• they were called to Essex Road because a woman was being held against her will,

• before he kicked the door in he heard a scream and heard sounds of violence inside,

• when they entered, Donald Walker was restraining Ruth Ham, and

• his violence was justified by the behaviour of Donald Walker whereas it was found that he had in fact, cooperated with and had not threatened them and had followed their instructions prior to the torch incident.

Counsel also referred to the evidence of Donald Walker that was accepted about the shirt tearing incident, something about which Carter and Sesin claimed to be unable to give evidence. Referring to the central incident, Counsel for the plaintiffs emphasised the findings that at the time that Sesin placed a headlock on Donald Walker it was unlawful; Donald Walker was trying to get to his mother to assist her in response to Carter's dangerous assault on her.

Counsel for the plaintiffs also argued that Carter had through his submissions attempted to downplay the gravity and seriousness of his conduct. In relation to the proposition advanced that Carter did not premeditate or plan the assault, Counsel for the plaintiffs submitted that this was of no relevance because any panic or turmoil was the result of the illegal actions of Carter and Sesin acting in concert. There was no provocation or excuse for what he did. As to the reliance upon the anger of Donald Walker, Counsel argued that it was responsive to Carter and Sesin's illegal actions in concert as Carter raised tensions and could not excuse Carter's conduct. As to the proposition that Carter had been no more than reckless, counsel submitted that in light of the findings, the force used was not merely reckless. It was also put that the force used was not caused by inexperience or lack of thought. Counsel also submitted that what occurred was not a mere case of poor judgment; for none of the force used by Carter and Sesin in concert was legal. Counsel again submitted that after the headlock was placed, Carter and Sesin viciously assaulted Donald Walker in a cowardly fashion.

As to the absence of a finding as to whether the stamping on the elbow was inadvertent or intentional, counsel for the plaintiffs submitted that it was never Carter's case that he and Sesin handcuffed Donald Walker or that they had any contact with him after he was handcuffed. It is put that to now assert that the standing on the elbow was inadvertent and not cowardly is "special pleading".

Interesting as this latter debate may be, no express finding was made about whether the stamping was inadvertent. It should, however, come as no surprise to the parties that I was, and am, satisfied to the requisite standard that the stamping was deliberate and by Carter.

As to the attempt to rely on the lack of claims in respect of the other conduct of Carter, counsel for the plaintiffs submitted that it was not relevant whether a claim was made or not for trespass to land or property damage but that what mattered were the findings made in respect of those matters - all adverse to Carter. In response to the reference to the finding that the assault and battery lasted less than five minutes, counsel submitted that it was "unrelenting, vicious, unprovoked and caused serious injury".

In response to this aspect of the defendants' submissions, counsel for the plaintiffs submitted that the case was not one that concerned errors of judgment or poor judgment. Counsel submitted that none of the force used by Carter and Sesin in concert was legal. Carter and Sesin were the sole authors of the situation and cannot plead in mitigation that they were acting under the pressure of events or the agony of the moment. Counsel submitted that any excitement, turmoil and panic in the minutes that followed the shining of the torch in the face of Marcia Walker was entirely a consequence of the illegal and violent conduct of Carter and Sesin acting in concert.

Counsel for the plaintiffs also submitted that Carter's need to attempt to maintain "complete physical control of the situation " was explicable on the basis that he had initiated a vicious physical assault and that he would be exposed to lawful retaliation if he did not maintain complete control. Counsel for the plaintiffs also submitted that the argument should be rejected that Carter had a subjective belief that it was necessary to apply very substantial force to control the situation; for he was the principal author of the situation and the violence.

In concluding their response on this aspect, counsel for the plaintiffs submitted that because Carter and Sesin were the sole authors of the situation, they could not seek refuge in an inability to make mature or deliberate reflection and could not plead mitigation on the basis that they were acting under the pressure of events and the agony of the moment.

26 The submissions and responses of counsel for the plaintiffs should be accepted. I make the following additional comments.

27 The submissions of counsel for Carter attempted to play down the significance of Carter's conduct. In a number of instances, the submissions were inconsistent with the findings and at times selective, incomplete, and, as a result, inaccurate and unhelpful. This continued a feature of the submissions made on liability and damages. In the present context I refer, for example, to findings relied upon by counsel for the first defendant which are quoted and referred to above.

"Donald Walker's case was that Carter and Sesin acted with "excessive zeal". Here, counsel drew on an expression I had used not one that had been used by counsel for the plaintiffs. I used the quoted expression in the course of discussing why it might be that Carter and Sesin would not wish to acknowledge either the existence of Donald Walker's shirt or its tearing. In referring to "excessive zeal" I was being kind to Carter and Sesin. It was not a description advanced by the plaintiffs. Generally the discussion had been about excessive force. The reference should be compared with the passage from the reasons, footnoted in the written submission of counsel for Carter on this issue which was as follows:

"I accept they were very scared from the outset and that there was gross, heavy violence. But the violence came from Carter, in particular and, for Sesin, that would have been frightening. For Carter, it is also possible that he found his own conduct frightening. The violence did not come from Donald Walker."

The court concluded that they 'totally mishandled the situation'. That comment needs to be read in its context[14]

"In light of the above findings, there was no breach of the peace by Donald Walker. There was no proper basis to exercise the power to arrest him. Carter and Sesin did not act in self defence of Sesin. In any event, they used excessive force against Donald Walker. There was no lawful justification for the blows to Donald Walker struck by Carter and Sesin. Carter and Sesin totally mishandled the situation and, once Walker was held on the ground, he posed no threat to the police officers or anybody else. He was, at all relevant times, simply wanting to go to his mother's aid. Carter acknowledged that and was aware of that fact. I am satisfied Sesin would also have been aware of that fact.

"The Court concluded...'that Carter approached the task of his use of force 'without any thought or precision'". The quoted phrase appears in the following passage in the reasons in a discussion of Carter's inconsistent descriptions of "his first blows", not of the whole incident.

"1244 In talking to Pluim on the night, his description was simple and direct:

"and that's how he got the welt marks on his back, I just started

belting into him with the bat and telling him to get down"

1245 In his formal statement, he stated that he struck him to the side of the stomach four times and twice on the upper arms. He said nothing about aiming at the arms and missing. In neither statement was there any suggestion that he approached the task with any thought or precision."

• The submission that "reckless force" was used. This submission relies on the findings made that "Carter could have applied... a full Nelson to Donald Walker while he was on his feet and in Sesin's headlock without resorting to his baton". The findings were made in the following passage of the reasons

As to the central event, Carter and Sesin knew that Donald Walker was moving towards his mother to help and that there was no justification for Sesin's headlock. But Sesin had restrained him in the headlock and Carter could have applied his training and grabbed Donald Walker's flailing left-hand and turned it into a full Nelson as they had apparently been taught to do. Instead, he escalated the level of violence by hitting Donald Walker with his baton a number of times as hard as he could, including to the head, struck Sesin twice and, later, dropped with his knee into Donald Walker's back fracturing a rib. Carter was in a violent state. While in that state, he dealt violently with Marcia Walker.

As noted above, the submission for Carter went on to argue that the above findings supported the conclusion that Carter used reckless force against Donald Walker and that it should not be concluded that Carter was motivated by actual malice or ill will towards Donald Walker. I disagree. It is difficult to avoid the conclusion from the other findings made that there was actual malice and ill will. There was also an underlying contempt for Donald and Marcia Walker. Carter had ample opportunities to consider each blow as it was struck and the necessity for it; for nothing Donald Walker did posed any threat to him or, once the headlock ceased, posed any threat to Sesin.

As to the attempt to categorise the actions as reckless, counsel has not elaborated on the sense in which they used that term. Presumably counsel intended to imply something more than mere negligence or carelessness. Perhaps counsel meant heedless of their duties as police officers. Applying the term in the relevant criminal context - "recklessly causing serious injury" - reference may be made to the directions that are given to juries in considering the mental element of such a charge.

"The third element relates to the accused's state of mind. The prosecution must prove, beyond reasonable doubt, that at the time the accused did the acts that you find caused the complainant's injury, she/he was aware that those acts would probably result in the complainant being seriously injured. That is, NOA knew that NOC was likely to be seriously injured by his/her actions.

It is not sufficient for NOA to have known that it was possible that NOC would be seriously injured. She/he must have known that that consequence was probable.

It is also not sufficient for NOA to have known that it was probable that NOC would be injured by his/her actions. For this element to be met, NOA must have known that it was likely that his/her acts would seriously injure NOC.

In determining this part of the test, you must be satisfied that NOA him/herself actually knew of the probability of NOC's injury. It is not enough that you, or a reasonable person, would have recognised that likelihood in the circumstances. "[15]

Whatever precise meaning was intended by counsel for Carter, to categorise Carter's acts as reckless rather than acts of malice or ill will does not, in the end, assist Carter to any great degree.

I am prepared to accept that there was no pre-planning in the initial blows by Carter, but I am satisfied that those blows were struck deliberately, with maximum force and with an intent to cause the maximum pain. Carter acknowledged that he hit Donald Walker with maximum force. There is no doubt in my mind that he knew that it was likely that his acts would seriously injure Donald Walker. After the interruption caused by Marcia Walker's intervention, he returned to Donald Walker and did so, on his own description, with the intent of "belting him" and he proceeded to do so. These acts may be fairly described as pre-planned. I turn to other submissions.

28 To meet the submission by Counsel for the Plaintiffs that Carter's conduct was cowardly and vicious and continued after Donald Walker was handcuffed, Carter's counsel submitted that the court had not described Carter's conduct in that way.

29 A review of the transcript reveals that that description was used in the course of cross-examination of Donald Walker and in submissions by Counsel for the plaintiffs in referring to the entire episode from the use of batons onwards.

30 Counsel for Carter is correct. I have not expressed a view on that submission. I should do so. Having regard to the use of the two batons, very substantial weapons, by two police officers against an unarmed person who had not, and was not, threatening them with any unlawful action and could not protect himself from the blows, particularly when held in the headlock by Sesin, what Carter and Sesin did may properly be described as cowardly and as vicious. The same description properly attaches to beating him after the headlock when he was not threatening them, the act of falling on a knee on his back while he was face down on the floor and stamping on the elbow when handcuffs were in place.

31 I refer to the defence submission concerning the alleged shortness of the period involved in the incident following the torch incident. Assuming a timeframe of about five minutes, that may be a short period for a conversation. But it is a long time if you are being beaten as Donald Walker was. It was also ample time for Carter to consider what he had done, was doing, and was proposing to do.

32 As to the argument that the explanation for Carter's conduct at the scene was "fear and anxiousness", it may partly explain what occurred at the outset, but it does not excuse what occurred then or later. A police officer's job is a very difficult and demanding one. A policeman is expected, and required, to cope with and manage situations appropriately notwithstanding any fear and anxiety caused. The situation with which they were faced in the present case did not provide any special reasons for fear and anxiety such as a person armed with a gun or a knife. It was they who were armed and they outnumbered Donald Walker.

33 In my earlier reasons I invited the parties to make submissions addressing[16] the question of the reasons why Carter and Sesin acted as I found they did. Reference has already been made to a number of those submissions. Other matters were raised by the plaintiff. They are inconclusive. They are considered in Appendix Q to this judgment.

34 It is possible to suggest a variety of potential factors which could explain what occurred. A complex matrix could be developed. But it should be remembered that Carter, who was responsible for what occurred is, and was, a relatively uncomplicated human being.

In the end, the clearest and most accurate insight into Carter's actions was given by him in the statements he made to Pluim very shortly after the incident. Referring to what he did prior to Mrs Walker's interruption, he said

".. I just started belting into him with the bat and telling him to get down".

"I just - and that's when I flew back over and started belting the bloke with the baton again. What could we do?"

35 The principles to be applied are well-established and are largely common ground between the parties. Aggravated damages are awarded as compensation where the harm done to the plaintiff has been aggravated by the way in which that harm was done[17]. It is compensation awarded

"for injury to the plaintiff's feelings caused by insult, humiliation and the like".[18]

36 For a plaintiff to succeed he or she must prove that injury was done to his or her feelings at the defendant's hands[19] - whether by "insult, humiliation or the like". In New South Wales v Ibbett (2006) 81 ALJR 427[20] the injury to the feeling was described as the affront to the persons present who were family members at the time the plaintiff's exclusive possession of the premises was disturbed by the defendants. In that case the High Court took the view that the affront to the family persons present

"may aggravate the infringement of the right of the plaintiff to enjoy exclusive and quiet possession".[21]

"the decision of the majority in the Court of Appeal to uphold the award of aggravated damages partly by reference to the affront to Mrs Ibbett of the treatment of her son as well as herself was consistent with basic principle. The same is true, subject to what now follows[22], of the award of exemplary damage for the trespass".

The more insulting, humiliating or affronting the conduct of the defendant, the greater the indignity that the plaintiff is likely to suffer and the greater the injury to the plaintiff's feelings is likely to be and the greater the award of damages should be.[23]

37 In assessing aggravated damages, it may be relevant to consider evidence of events up to and including the trial[24]. Counsel for Carter accepted that the Court can have regard to the defendant's attitude "down to the time of the trial"[25]. The conduct of the defence which was not bona fide or not justifiable in the circumstances known by the defendant is something that may also be relevant[26].

38 The State also conceded that the conduct of the trial by the defendants can be taken into account in the award on aggravated damages. Counsel submitted, however, that it is not every defendant to an action who must face the prospect of aggravated damages being increased. It was put that the plaintiff must show that the defendant's conduct of the case lacked bona fides, or was improper or unjustifiable[27]. It may be said to be logical, however, that if the original tort is done in such a way that it causes injury to the plaintiff's feelings in the form of insult, humiliation and like emotions, subsequent conduct by the tortfeasor, including the conduct of the defence, will be relevant where it prolongs or revives those feelings - or is a factor in making them worse.

39 As to the material aspects of the incident itself, I refer to the material above where the parties submissions are discussed.

Post incident issues raised; parties' submissions

40 In addition to the points made about the incident itself, counsel for the plaintiffs advanced arguments based on the conduct of Carter and Sesin and other police officers and personnel of other organisations immediately after the incident and up to and including at the trial of relevance to Donald Walker's claim.

41 Carter argued, however, that applying the principles identified in Enerver v The King [1906] HCA 3; (1906) 3 CLR 969, there was no evidence that Carter was acting in concert with any of the other officers in relation to the events that followed the incident.

42 The post-incident conduct falls into different categories.

Behaviour at the scene immediately after the incident up to and including at the police station

Counsel for the plaintiffs relied upon the findings that the police at Essex Road ignored Donald Walker's injuries. They also relied upon the fact that, on the findings made, Donald Walker was falsely arrested and conveyed to Camberwell police station in a paddy wagon.

It is put that at the police station, he continued to be naked from the waist up on a cold night and no attention was given to his injuries. He was also forced to urinate in humiliating circumstances.

Carter takes the position that the matters raised on behalf of Donald Walker do not relate to his conduct and, therefore, do not attract aggravated damages. He was instructed to go to hospital with a senior officer shortly after the central events and did so. He was not involved in the removal of Donald Walker from the scene of the incident to the police station nor was he involved in his interviews or his release. His counsel noted that while he did not take direct steps to address the welt marks on Donald Walker's back which he had observed, he did tell a sergeant about them. In essence it is put that he did not participate in or have control over the major events relied upon. This included the treatment of Donald Walker at the Camberwell police station.

In response, counsel for the plaintiff submitted that Carter, and Sesin, were present when the ambulance arrived and had it in their power to request that Donald Walker be attended to by the ambulance officers. They did not do this. As to what occurred at the Camberwell Police Station, Carter and Sesin were, after discharge from the hospital, at the police station where Donald Walker was held in custody. Counsel accepted that, on the evidence, it appears that Carter and Sesin had no direct interaction with him there. His treatment at the police station was in the hands of other people who were called to give evidence. The treatment, counsel submitted, was callous and improper and followed and reflected the callous disregard in which Carter and Sesin held Donald Walker.

Referring to the argument which referred to the Enever principles, counsel for the plaintiffs' submitted that Carter should be held responsible for aggravated damages referable to the events after his vicious and illegal assault because they were consequences of those assaults and of his failure to indicate that it was not appropriate to take Donald Walker into custody and his failure to organise any assistance for Donald Walker. Counsel submitted that, accepting that Carter and Sesin were only very junior officers at this time, these events would not have occurred if they had properly treated the Walkers immediately after the incident instead of lying about what occurred and continuing to humiliate them and treat them with contempt. They set the tone. They could have changed it. It is put, therefore, that it is relevant to consider the abovementioned treatment as the continuation of the injury to Donald Walker's feelings by Carter, with Sesin, for the purpose of the assessment of aggravated damages.

In my view the lack of direct involvement in the matters complained of lessens the gravity of Carter's culpability. But it may fairly be said that by his failure to inform Pluim and the other police about what in fact happened, Carter allowed the humiliation and affront identified by counsel for the plaintiffs to continue up until Donald Walker's release from the Camberwell Police Station. In addition, before Donald Walker's removal from Essex Road, Carter's failure to do anything about having Donald Walker physically examined or being appropriately clothed before he left resulted in further affront and humiliation for Donald Walker. I do not accept Carter's evidence that he told a sergeant about the welt marks.

Counsel referred to the formal complaints Donald Walker made about the falsity of the evidence against him, and the criminal charges, which were ignored by those State employees to whom he complained and who failed to properly investigate the police case and the material supplied by the Walker brothers. It is put that this fuelled his anger understandably.

Counsel submitted that Donald Walker was falsely charged with serious offences and prosecuted for three days.

Counsel for Carter submitted again that Carter did not participate in or have control over the major events. This included the subsequent charging with criminal proceedings and the handling of his complaints by the Ethical Standards Department and the Ombudsman. It was put that these issues are more pertinent to the second defendant.[28]

In response, counsel for the plaintiffs submitted that while the Ombudsman was protected by s 29 of the Ombudsman Act 1973 there was no similar protection for the Ethical Standards Department. Counsel submitted that the decision not to accept the submissions of the Walkers as to what occurred was a consequence of Carter's false statements, his actions and those of Sesin. Counsel again submitted that Carter had relevant participation and control of all events that followed Donald Walker being removed from Essex Road because of his failure to set matters right. The fact that he did not participate in those events did not lessen his responsibility for them.

Counsel for the State of Victoria argued that the plaintiffs' submission that the Ombudsman and the Ethical Standards Division failed to properly investigate the matter, if true, has no relevance. Counsel for the plaintiffs advanced submissions in response but it is sufficient for me to state that, in my view, it does not ultimately advance the determination of the issues to explore the conduct of the Ombudsman and the ESD when that conduct has not been explored in this case. Further, what is relevant is the conduct of Carter subsequent to the incident and whether it prolonged or exacerbated the injury to his feelings.

Again, if Carter had told the true story, the Walkers' accounts would have been accepted and they would not have been charged and would, on the probabilities, have achieved vindication in one or other of those enquiries. Carter's deliberate failure to do so had the result that the humiliation and affront not only continued but was worsened.

Counsel for the plaintiffs submitted that the defence extensively cross-examined Donald Walker and other witnesses in an attempt to portray him as a "mendacious man who grossly exaggerated his claim". Reference was made to the fact that the defence attempted to allege that he had suffered no significant injuries and no significant economic loss.

As to the criticism of the extensive cross-examination of Donald Walker, counsel for the State directed his attention to the time aspect (not the challenge to the credibility) and argued that unresponsive answers by Donald Walker resulted in him being in the witness box longer than he would have otherwise needed to be. Counsel also relied on Donald Walker's struggle as a witness. It is put that these added to the length of the trial and did not indicate an improper approach in the defence case.

It is true that the problems identified by the State added to the time during which Donald Walker had to deal with the attacks but that was a consequence of the physical and psychological damage done by Carter, with Sesin, and the resulting medication. While it may also be said that a substantial part of the cross-examination was concerned with the unsuccessful lost opportunity claim, that cross-examination was also a critical part of the prolonged and concentrated attack to portray Donald Walker as a mendacious person.[29] That strategy was a central part of the defence strategy on both the liability and quantum issues.

In relation to the cross-examination on credibility, it was also argued for Carter that it cannot found an entitlement to aggravated damages against him. Counsel submitted that the reality was no more than that the instructions on which the cross-examination was based have not been accepted by the court on the balance of probabilities. It was put, further, that there was no evidence that Carter knew or must have known that his instructions were wrong.

I must disagree. It has been held that Carter had fabricated and lied extensively about what occurred. Such matters were put to Donald Walker. I am satisfied that Carter knew they were wrong.

Counsel for Carter also submitted that cross-examination of Donald Walker led the court to not accept Donald Walker's evidence on some critical issues. By way of example, counsel referred to the rejection of Donald Walker's allegation that Carter and Sesin beat him, including with batons, while he was handcuffed and the finding that the only violence held to occur after he was handcuffed was the stamp to the elbow. Counsel also referred to the rejection of Donald Walker's evidence that Carter struck or punched Marcia Walker.

In my view, it is not relevant that some of the cross-examination of Donald Walker resulted in the non-acceptance of some of the evidence given by Donald Walker; for that did not occur on the basis that Carter and Sesin's evidence should be accepted or that Donald Walker was lying. Rather, the basis was the probable unreliability of Donald Walker's recollection resulting from the effect of the assault and battery on his perception and recollection at the relevant time. The fact that parts of the accounts of Carter and Sesin were in a sense verified on occasions, does not detract from the proposition that Carter (assisted by Sesin and others) lied extensively in the attempt to defeat the claims of the plaintiffs and that those lies formed the basis of cross-examination about the whole incident.

43 Counsel for the plaintiffs also submitted that the actions of Carter (supported by Sesin and the other police) in giving false evidence was the principal reason for the prolonged trial running on liability and so extended the humiliation and affront. Carter could have stopped it.

44 That proposition should be accepted. The defence on liability ultimately was based on the defendants' reliance on the alleged truth of what Carter (and Sesin) had said about what occurred in the incident and on the proposition that their evidence should be accepted. The attacks on the credibility of Donald Walker and the argument that it was Donald Walker who was lying in his evidence, insofar as it related to the incident, was pursued and persisted in by relying on the continued and further expanded false accounts of Carter (and Sesin). If Carter alone had not persisted in his false account but had told the truth, the case would have had to proceed as an assessment and, as a result, the effect of the original humiliation and affront would either have been removed or at least significantly reduced.

45 Counsel for the State of Victoria raised the proposition that the Court left open the conclusion as to whether Carter was lying or had failed to perceive or understand that he was a source of the violence. Counsel was referring to the statement[30] accepting that what occurred was the worst violence Carter had been involved in over 16 years but that he was either lying or failed to understand that the violence came overwhelmingly from him and to a limited extent from Sesin. It is argued that this misperception or lack of appreciation persisted and shaped the character of the trial in respect of liability questions. It is put that this, if it were the situation, did not establish mala fides or unjustifiability in the conduct of the defence such as to contribute to aggravated damages.

46 It is true that I left alternatives open. No concluded view was expressed at that time, however, because the parties were to have the opportunity to submit further material and the above reasons raised the issue.

47 I should now address the issue and I do so by indicating that I am satisfied that there was no misperception by Carter. Carter's evidence on this issue, as with the details of which the defence was based, was a deliberately false account.

In my view, the conduct of Carter's defence on the issue of liability was based on deliberate lies and was therefore mala fide and unjustifiable.

Assessment of Donald Walker's claim for aggravated damages

48 As conceded by counsel for Carter, the jurisdiction to award aggravated damages in favour of Donald Walker was enlivened by the facts found in relation to the incident itself. I turn to the question of the assessment of those damages.

49 The circumstances were that Donald Walker was beaten unlawfully, viciously and in a cowardly fashion by Carter (in concert with Sesin) in his home, in the presence of his mother. Further he witnessed his mother, Marcia Walker, being injured in his home and in his presence directly as a result of an assault by Carter. This occurred because she lawfully came to his aid to prevent Carter beating him and he witnessed her in turn suffer significant physical and emotional injuries. His rights were flouted by two police officers who were sworn to uphold the law. He observed Marcia Walker's rights being flouted by Carter. He was treated with contempt on the night and observed his mother being treated with contempt by the other police officers. That conduct would not have occurred if Carter had been honest and given a true account to his colleagues of what had occurred. Donald Walker's shocked and traumatised reaction to the events were to be expected. I am satisfied that, though such matters were not articulated by him, Donald Walker was significantly humiliated, insulted and affronted by what occurred.

50 Unfortunately, these injuries to his feelings caused by the affront, humiliation and insult described, have, in the case of Donald Walker continued until the least date of the first judgment[31] as a result of the ongoing failure by Carter to correct his false account. Further, the injury to Donald Walker's feelings, was exacerbated by having to cope with false charges being brought (but essentially abandoned), his complaints to official channels being purportedly investigated but unsuccessful and by the protracted civil proceedings and a protracted trial. In that trial, the prolonged attack on Donald Walker's honesty was a key and critical aspect of the conduct of the defence on both liability and quantum issues. As to the latter, the defendants being unwilling to call the medical and psychiatric experts who had examined Donald Walker for the defence side, nonetheless cross-examined him as to the extent of his injuries and their effect on him and on his earning capacity in the hope of damaging Donald Walker's credibility. I am satisfied that this occurred as part of a war of attrition that was engaged in by the defendants. That issue is discussed in more detail in the context of the plaintiffs' claim for penalty interest. As to the liability issues, the defence was based, to a significant extent, on the false statements and evidence of Carter.

51 The failure of Carter to acknowledge what happened is the common and substantial thread running through the above matters and can be identified as a primary cause for the injury to Donald Walker's feelings continuing and worsening over the ensuing years since 1993. He cannot escape liability because the conduct of others was involved in the subsequent events. If he had dealt honestly with the liability issues, the extent of the injury to his feelings would have been significantly reduced, it would not have persisted and would not have worsened. The war of attrition could not have been fought in these proceedings.

52 In all the circumstances, I have come to the conclusion that the amount of aggravated damages sought for Donald Walker of between $150,000 and $200,000 is modest. In all the circumstances it would be appropriate to award aggravated damages of $200,000.

53 The findings identified as relevant to the claim for the estate of Marcia Walker by its counsel were the following:

Counsel referred to Carter and Sesin being young and fit and sworn to keep the peace and enforce the law. Further, counsel referred to the fact that at the time of her injuries Marcia Walker was 67, on a stick and had restricted mobility.

She went to the unit in Essex Road to investigate the disturbance caused by Carter kicking in the door. The kicking in of the door was not justified. There was no scream. Counsel also alleged that Carter attempted to force her to leave Essex Road and this was unjustified.

The events at the scene after the incident

Counsel submitted that the police at the scene deliberately and falsely set out to paint her as a significant villain in the events of the night. She was falsely described as a liar, and going crazy. Carter responded to Pluim's comment that she was out of her tree by saying she was a lunatic. Counsel submitted that heavy handed pressure was brought upon her by Sergeant Pluim to change her truthful account of what happened. Counsel also submitted that Pluim supported Carter and Sesin in their elaborate story to hide their wrongdoing.

Counsel submitted that she was falsely charged with assaulting police. Reliance was placed on the fact that the charges were withdrawn on the third day of the hearing. Counsel also argued that the falsity of the evidence against her and the injustice of the criminal charges were all ignored by those State employees with whom Donald and Marcus Walker dealt with on her behalf.

Counsel argued that is was relevant to consider that she was distressed not only by her own injuries but also by the impact of the consequent injuries, physical and psychological, upon Donald and Marcus Walker.

54 The defendants have not advanced arguments directed specifically to the above propositions.

Assessment of the estate claim for aggravated damages

55 Marcia Walker had to endure the sight of her son being beaten up by police officers for no good reason, was in turn assaulted and otherwise treated with contempt by Carter. Her rights were flouted by a police officer sworn to uphold the law. She had to endure what happened afterwards at the scene including the persistent bullying, insulting and contemptuous behaviour of Sergeant Pluim in his interview and having to wait while Carter and Sesin were attended to by the ambulance people notwithstanding the significant differences in their injuries. Later, the humiliating treatment continued through the laying of charges based on Carter's lies, charges which were subsequently withdrawn, and through the opposition to complaints which were lodged. These subsequent injuries to her feelings were allowed to occur by Carter because of his refusal to face up to the truth and tell it. I am satisfied that he had ample time on the night in question to inform Pluim and his other colleagues of what had happened. It needed only a few words for him to admit the truth to them.

56 The injury to her feelings, however, was of a lesser order and for a lesser period than that suffered by Donald Walker. Further, she did not have to endure this court case and its trial. In all the circumstances, a reasonable award of aggravated damages in respect of the injury to her feelings arising from the assault and battery would be $100,000.

The claims of Donald and Marcus Walker for exemplary damages - overview

57 The plaintiffs and defendants appear to be in basic agreement as to the general principles to be applied. As was explained in Lamb v Cotogno [32], exemplary damages

"..go beyond compensation and are awarded "as a punishment to the guilty, to deter from any such proceeding for the future, and as a proof of the detestation of the jury to the action itself".

58 The High Court accepted that the conduct requiring punishment by exemplary damages is conduct showing

"a conscious and contumelious disregard for the plaintiff's rights"[33].

59 The High Court has commented that the Lamb v Cotogno description covers the "greater part of the relevant field".[34] As to the deterrent aspect, the High Court has also commented

"the deterrence which is intended extends beyond the actual wrongdoer and the exact nature of his wrongdoing. It is an aspect of exemplary damages that they serve to assuage any urge for revenge felt by victims and to discourage any temptation to engage in self-help likely to endanger the peace".[35]

60 The object of deterrence is not confined to the defendant and the victim but includes general deterrence extending

"beyond the defendant himself to other like-minded persons, but it also extends generally to conduct of the same reprehensible kind"[36]

61 Counsel for the plaintiffs submitted that bearing in mind the purposes of imposing exemplary damages, they should be such as to cause the defendant to "smart"[37]. Reference was also made to the statement by Heydon JA, as he then was, that "they must sting".[38]

62 Counsel for the plaintiff also referred to authorities dealing with cases concerning police conduct. In particular, counsel submitted that highhanded conduct that has warranted an award of exemplary damages has included

• overbearing conduct while in custody of others[39]

• the giving of evidence rejected as false and duplicitous[40]

• heavy-handed and officious use of arbitrary power[41]

• conduct where it is necessary to bring home to officials of the State responsible for the police force that police officers must be trained and disciplined so that abuses by police officers of the kind that occurred do not happen again.[42]

63 It has been noted in the authorities that there is no necessary proportionality between compensatory and exemplary damages. In addition, however, it has been recognised that in reality there can be an element of punishment in aggravated damages[43]. As a result, in considering whether to award exemplary damages and, if so, their quantum, it is necessary to consider whether the awarded compensatory damages, including aggravated damages, address any need that may exist in a particular case for punishment of the tortfeasor through the award of exemplary damages[44]. Double punishment must be avoided.[45] Further, the court should approach any assessment with restraint and moderation.[46] It also appears to be established that deciding whether to award exemplary damages, and their quantification, generally will involve the exercise of discretion except where there is no room for a discretion.[47]

64 Counsel for Carter raised two issues which require resolution[48]

• Counsel attempted to rely upon the fact that in Horvath, findings made by the trial judge about the police evidence having been fabricated and lacking credit did not feature in the court's assessment of exemplary (or aggravated) damages.

I prefer the analysis of this issue by plaintiffs' counsel that in Horvath, the Court of Appeal was not deciding which elements of the conduct of the police could support an award for exemplary damages. The Court was ruling on the issue of the liability of the State for exemplary damages on the facts in that case in the light of s 123 of Police Regulations Act.

• Counsel also challenged the plaintiffs' reliance upon the fact that, in Lee v Kennedy,[49] the New South Wales Court of Appeal held that the plaintiff was entitled to exemplary damages and in support of that proposition referred to the fact that the trial judge had, when discussing damages, stated that he had rejected the police evidence "as being false and duplicitous". Counsel argued that it did not follow from that reasoning that an award of exemplary damages could be justified where "police evidence was found on balance to be lacking in credit of itself." Assuming such a distinction can be made, I accept the submissions in reply of counsel for Donald Walker that the false and duplicitous evidence of Carter and Sesin was not merely relevant to assessing the evidence of the plaintiff and defendants but was relevant to whether the entire behaviour of Carter and his colleagues should be categorised as a "disgraceful episode"[50] and therefore one attracting an entitlement to exemplary damages.

65 Bearing in mind the relevant purposes of exemplary damages, it is relevant to consider the conduct of the other associates of Carter during and after the assaults. It appears that this relates primarily to the issue of deterrence and the need to bring home to State officials responsible for the police force that behaviour of the kind revealed should not happen again. In the present case, as already noted, I am satisfied that the evidence of Carter and Sesin should be described as false and duplicitous. It may also be fairly said that the behaviour of Carter and Sesin, and officers such as Sergeant Pluim, in their treatment of Donald and Marcia Walker and their treatment of the truth, then and since, was such that the episode may be properly categorised as a "disgraceful episode".

Possible limits on the quantum of exemplary damages

66 The second defendant raised several issues relevant to the question of whether there are particular limits on the quantum of exemplary damages, namely

• the relevance of punishment available under the criminal law.

67 The issues raised are considered in Appendix R to this judgment. For the reasons there set out, I have concluded that the matters raised do not assist.

The claim for exemplary damages by Donald Walker

Issues raised by Donald Walker relevant to his claim for exemplary damages

68 Donald Walker relies upon the matters emphasised above about the incident (save for the assault on Marcia Walker), and subsequent events, in support of his claim for aggravated damages discussed above. To the extent that Donald Walker and the defendants are relying upon the same matters adverted to in the claim for aggravated damages, I refer to the material relating to that above and my summary of the responses of Carter and those, in reply, of Donald Walker and my analysis of them.

Carter was the person who initiated the physical action and was extremely violent. It was put that he failed to act with reasonableness when alternate actions were available to him.

Police behaviour at the scene of the incident

When Pluim appreciated that Marcia Walker's account of how she and Donald Walker were injured raised a risk of an Ethical Standards enquiry into the behaviour of Carter and Sesin, he bullied Marcia Walker and attempted to have her falsely change her allegations of the illegality of the behaviour of Carter and Sesin. He also supported Carter and Sesin in an elaborate story to hide their wrongdoings.

It is put that the treatment meted out to Donald Walker after being arrested pointed to a strong antipathy towards him and an attitude that he had forfeited any right he might have had to proper consideration of his own well-being, his rights, or the facts.

Subsequent Police conduct prior to the trial

For Donald Walker it is also argued that Sergeant Rogers was the informant to the Magistrates' Court prosecution. Contemporaneous notes he made of the interview with Carter were not made available at the Magistrates' Court to Donald or Marcia Walker. Further they were not discovered to the plaintiffs by the defendants' solicitors until 18 April 2007, three weeks before this trial commenced. It is also put that Carter failed, in light of the objective evidence by which he must have known that he was in the wrong, to rectify the situation by being honest about what had occurred.

It is put that key witnesses for the defendants lied as to the events of 15 - 16 August 1993. There were also other police.

As to Carter's performance as a witness, counsel for Carter referred to the findings that Carter deliberately exaggerated his account of the behaviour of Donald Walker and had reconstructed false accounts of critical parts of his evidence about the incident. Counsel questioned whether such findings, made on the balance of probabilities, could justify an award of exemplary damages.

The findings were made on the balance of probabilities but I was, and am, in fact satisfied as to those findings beyond reasonable doubt.

As to counsel's further submission that such findings did not foreclose argument as to whether Carter wilfully and deliberately gave false evidence, I refer to my above finding that he did.

Generally it is put for Donald walker that on the night of 15 August 1993, and ever since, no apology by any police has been made. That is so, but it should be noted that Carter did express regret while giving evidence about one aspect - describing Marcia Walker as "a lunatic" to Pluim.

Further, it is put that Carter and Sesin have "pigheadedly" refused to acknowledge any wrongdoing. Not only that, but Carter has maintained that, if faced again with the same situation, he would act in exactly the same way. Counsel for the plaintiffs submitted that it is a relevant factor in the award of exemplary damages that, having regard to the facts made available to a defendant and with the benefit of hindsight Carter has failed to recognise the wrongdoing, express regret or apologise for the actions.

Counsel for Carter and the State attempted to address these issues in slightly different ways.

(a) Carter's counsel argued that a reckless subjective belief that a very substantial force was necessary to contain the situation may explain the evidence that Carter gave in re-examination that if the same situation arose now he would do nothing differently. I do not accept that he had such a subjective belief or that, if he did at the time, it has continued.

(b) Counsel for the State of Victoria argued that it was possible that Carter's failure to perceive or understand that he was a source of violence, has persisted and that that explains why he says now he would do nothing differently. It is not wrongful future intent but incomprehension. The plaintiffs' response is in essence, with the example cited, that Carter was not under any incomprehension through faulty perception but was lying.

As noted above that is my conclusion. After considering the issue further, I am also satisfied that Carter could not have failed to perceive that he was the source of the violence and in denying that fact was yet again lying.

In any event, if reckless subjective belief or incomprehension were to be accepted as explanations, they do not assist Carter; for he is still failing to acknowledge the reality of what happened and so is at considerable risk of repeating the conduct. As to his assertion that he would not act differently if presented with the same situation he is either stating his belief or is lying. Either way, he remains at risk of repeating the conduct.

I turn to an additional matter raised by counsel for the plaintiffs relevant to the deterrent purpose of exemplary damages.

Counsel for the plaintiffs submitted that Carter and Sesin "were confident that other police would willingly assist them to justify their actions". Noting that the other police were not well-known to them, Counsel submitted that the strong inference arose that there was a culture of the police tolerating false evidence by members. Counsel for the State of Victoria submitted that if the reality was that they were labouring under the misperception of events referred to above, their state of mind was not indicative of any such confidence held by either of them. Counsel put that the plaintiffs are relying on a chain of indirect inferential reasoning to draw an extremely significant conclusion about the culture. Counsel for the plaintiffs responded by drawing attention to appendix H1 and H2[51] of the original reasons and the expressed attitude of Sergeant Pluim[52] in support of the submission.

In my view, there is insufficient evidence to support a finding of the existence of such a culture then or now. But so far as the group of officers involved is concerned, they plainly joined ranks in support of Carter and Sesin. In doing so, the senior officers, particularly Pluim, failed to objectively consider the facts, despite the fact that there was a glaringly obvious inconsistency between the injuries suffered and Carter and Sesin's account. Instead, they gave unquestioning support to Carter and Sesin which would have encouraged them to develop and continue with their lie. For the reasons given in the original reasons, Sergeant Pluim, as part of that support and encouragement was directly involved in the creation of a false picture designed to protect Carter and Sesin.[53] The underlying issues, therefore, remain relevant to the award of exemplary damages in that it should be brought home to the authorities that the police officers must be trained and disciplined so that abuses by police officers and failures of the kind that occurred do not happen. I note that the defendants have not placed evidence before the Court as to what steps have or will be taken to address these issues.

Additional issues raised by Carter in Donald Walker's claim for exemplary damages.

70 The submission filed on behalf of Carter commenced with a general comment in relation to the assessment of the quantum of any award of "punitive damages against him". It was submitted that the Court should find that the main factors resulting in his use of reckless force were inexperience and lack of thought. Counsel submitted that the assaults were not premeditated or planned. Further they occurred in circumstances of panic and turmoil.

71 I refer to and repeat my analysis above of those points in the context of the claim for aggravated damages and to my rejection of the arguments and explanations advanced by his counsel. In any event, whether deliberate or reckless, the conduct merits punitive damages and the matters raised on behalf of Carter do not moderate the award.

72 There remain, however, considerations such as the moderation principle and the need to avoid double punishment.

73 Counsel for Carter made further points expressly directed to exemplary damages.

Counsel submitted that it was not permissible to punish Carter for Sesin's misconduct, even though they were found to be acting in concert, where Sesin's misconduct itself would have given rise to an award of exemplary damages against Sesin or, vicariously, the State. In support of that argument, counsel relied upon the discussion of the liability of joint tortfeasors in De Reus v Gray[54] and XL Petroleum[55].

In my view, the authorities do not support the argument. The issues addressed in those cases and the legislation considered in them do not arise in the present case. The reality is that only one of the two joint tortfeasors has been sued, Carter. Exemplary damages may be awarded against him in respect of the acts done by him alone and in concert with Sesin in the incident.

It is also relevant to consider Carter's encouragement of Sesin to join in the false account and his failure to do anything to rectify the situation they had created. On the authorities these are matters relevant to the punishment of Carter and the issue of deterrence.

The possibility of punishment or disciplinary action directed to Carter

Counsel for Carter submitted that there was a "distinct possibility" that Carter will be punished by disciplinary or other action for his involvement in the event's aftermath and this may have a detrimental impact on his future career. Counsel referred to the fact that criminal punishment of the driver in Gray v Motor Accident Commission[56] was held to preclude the awarding of exemplary damages.

At a glance

Court

Decision date

Before

Source

Judgment (464 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (19)