88 It is important to delineate between circumstances in which compensatory damages may be increased by the conduct of the defendant and circumstances which would justify an award of aggravated damages.
89 In assessing the general or compensatory damages in this case it is proper "to take into account the whole of the conduct of the defendant to the time of verdict". Matters such as "the indignity, mental suffering, disgrace and humiliation" are to be included in the assessment together with any conduct by the Casino which "had the effect of increasing the injury" to the plaintiff's feelings. This is quite separate from aggravated damages the pre-requisite for which is proof by the plaintiff of conduct by the defendant which was not bona fide, or was improper or unjustifiable. Spautz v Butterworth (1996) 41 NSWLR 1 per Clarke JA at 17G - 18E.
90 Mr McAlary QC submitted that in the light of Clarke JA's judgment in Spautz v Butterworth (1996) 41 NSWLR 1 it was now "mandatory" in assessing damages in false imprisonment cases to "have regard" to other awards of damages "approved by" the Court for the purpose of reaching an assessment that ensures that the award will bear a proper relationship to the injury suffered.
91 Mr McAlary QC also referred me analagously to s 46A of the Defamation Act 1974, as amended, which requires the court in determining the amount of damages in defamation proceedings to "ensure" that there is an "appropriate and rational relationship between the relevant harm and the amount of damages awarded". Mr McAlary QC delicately submitted that it was the legislature's intention to remove the intrusion of eccentricities of trial judges and submitted that such an approach should be adopted in the assessment of damages for false imprisonment.
92 I disagree with the submission that Spautz v Butterworth is authority for the proposition for which Mr McAlary QC contends. I am of the view that Clarke JA's focus was on what was "permissible" (at 13D-G) and there is nothing in his Honour's judgment which I read as requiring me or, to use an American term, "mandating" me to compare awards of damages in false imprisonment cases which have been approved at appellate level with the circumstances of this case.
93 However I do agree that a proper principle by which I should be guided is that there should be an appropriate and rational relationship between the award of damages and the harm suffered by the plaintiff. I am also of the view that, although it is not mandatory, I am permitted to have regard to awards of damages "approved" by the Court. By that I mean awards approved by the Court of Appeal of this Court.
94 Both parties referred me to decisions at first instance of other courts. Lackersteen v Jones & Ors (1988) 92 FLR 6; Rixon v Sydney Harbour Casino (unreported NSW District Court, Garling DCJ 1 December 1997) However in line with what I regard Clarke JA to have said in Spautz v Butterworth I intend only to "have regard to" to those Court of Appeal cases to which I have been referred on this aspect of the matter.
95 In addition to Spautz V Butterworth I was referred to McDonald v Coles Myer Ltd (t/as K-Mart Chatswood) (1995) Aust Torts Reports 62,682 and Woolley v Phillips (unreported, NSWSC, Court of Appeal Clarke, Sheller and Cole JJA 26 August 1996).
96 In Woolley v Phillips the appellant, Mrs Woolley, had been falsely imprisoned by the defendant police officers and had been subjected to assault and battery by them in her home. The police mistakenly believed that a person for whom they were searching was in the appellant's home. The assault and battery consisted of threatening the appellant that she would be taken to the police station and charged and holding the appellant by the wrist and pulling her by the arm. There was no apology proffered to Mrs Woolley for the conduct of the defendants. The trial judge found the appellant suffered "post traumatic stress disorder".
97 At the trial the appellant abandoned any claim for aggravated or exemplary damages and the trial judge awarded $30,000 for general damages together with interest and other amounts for medical expenses and future treatment. Although the appellant challenged the trial judge's award as inadequate the Court of Appeal found that it was "within the available discretionary range".(per Cole JA at page 5)
98 Although the false imprisonment in Woolley v Phillips was coupled with both assault and battery the length of time that the appellant's liberty was curtailed appears to have been much less than in this case. However this was a case in which a woman had been falsely imprisoned in her own home by two aggressive and apparently violent police officers. There was no public nature to the false imprisonment as was the case here. Certainly Mr Vignoli was threatened in a similar fashion - of being charged - but there was no battery of him.
99 In McDonald v Coles Myer Ltd (1995) Aust Torts Reports 62,682 Mrs McDonald was falsely imprisoned in a very public way, charged with obtaining goods by false pretences, and had to endure both a criminal and civil trial.
100 Mrs McDonald was also subjected to a cross examination which included a baseless allegation that she had a mental disorder. The trial judge was of the view that there should be an award of "significant damages" and awarded $12,500 plus interest of $1,000. The Court of Appeal found that $12,500 was not "significant" and increased the damages to $27,000.
101 Mr Collins QC submitted that the plaintiff's unchallenged evidence supplemented by the video evidence together with the evidence of the three honest, decent and impressive women will convince me that substantial compensatory damages should be awarded. In addition to the lengthy period of time during which the plaintiff's liberty was curtailed and the consequent humiliation it was submitted that the following matters increased the injury:
· The fact that no food was provided to him at all during that period.
· The fact that he was confined in a small space sitting on a chair without the benefit of any support.
· The fact that he was "guarded" not only in the small space but also as he travelled to and from the toilet although he had pleaded to be allowed to go to the toilet without being guarded.
· He was told that he had his last chance to pay or the police would be called and he would be charged with stealing.
· He was threatened with being banned for 12 months from the Casino.
102 These matters need to be assessed in the light of the evidence that at all times the plaintiff said he was happy to pay the money to the Casino if he could verify the alleged overpayment by viewing the video.
103 Mr Collins QC submitted that the observations of the plaintiff during the time that he gave his evidence would persuade me of the genuine humiliation and disgrace felt by him. He submitted that the viewing of the incident on the video had distressed his client to the point which caused him to break down in the witness box.
104 There is no doubt that the plaintiff was indeed distressed in the witness box and for some period in tears. It was never suggested to him, understandably so, that such an occurrence was not genuine and was a result of the distress caused by reviewing the events of this incident on the videos.
105 Mr Collins QC submitted that there had been a long, slow, studied and repeated series of insults to the plaintiff by an almost faceless group of Casino employees which led to his deepest humiliation. He submitted that I would be satisfied that this was a searing experience for a person who had been appropriately described as gentle, polite and urbane.
106 The defendant made no real challenge to the evidence of the distress and humiliation of the plaintiff caused by its conduct. There was no cross examination of any of the three female witnesses to whom I have already referred who gave evidence of their observations of the effect this incident had upon the plaintiff.
107 I am satisfied that the plaintiff's false imprisonment lasted from 6pm until midnight. Although the Casino's admission of liability on the pleadings was to a period of four and one half hours I am of the view that the extra one and one half hours is proved on the evidence before me.
108 I am satisfied that this was indeed a searing experience for the plaintiff and that he felt deep humiliation and disgrace. I am also satisfied that he experienced a deal of mental anguish and discomfort as a result of this experience.
109 I am also satisfied that the plaintiff felt proud and saw it as an achievement to become a member of the Endeavour Club at the Casino. It was something that had taken a lifetime to achieve with the pastime that he loved. The description that he gave of walking amongst other members of the Club with a feeling that they were talking about him as if he were a common criminal portrays vividly the deep humiliation I accept he experienced.
110 I also accept that the injury to his feelings was heightened by the confinement in the close quarters of the Investigation Room with the constant presence of at least one Casino employee either standing or sitting with him.
111 I also accept that his humiliation was deepened by being escorted to and from the toilet by as many as three Casino employees and their standing "guard" outside the toilet awaiting his return. I also accept that the pressure placed upon the plaintiff to pay the money to the Casino by the threat of police action and a 12 month ban from the club he loved heightened the injury and hurt to his feelings.
112 The plaintiff conceded in cross examination that the casino staff were polite and did not manhandle him at any stage and I take these matters into account when assessing these damages. Mr McAlary QC submitted that I should also take into account the fact that the plaintiff was provided with two cool drinks at his request, that he was permitted to go to the bathroom when he requested to do so and that he was able to make and receive phone calls. Mr McAlary QC also relied upon the fact that the plaintiff was given access to his solicitor, Mr Levitt.
113 These are all matters that I have taken into account in this assessment however I am of the view that they are not very powerful circumstances in the defendant's favour. However matters that are more powerful are Mr Lamb's apologies both on the 20 June 1996 and when the plaintiff had his subsequent meeting with him in the Endeavour Room and the defendant's apology in Mr Arbuckle's letter of 5 July 1996. I intend to give these matters appropriate weight in this assessment.
114 Mr Collins QC also relied upon a number of matters as a basis for an award for aggravated damages and I will deal with those in due course. However some of the matters upon which he relied are in my view appropriate to analyse in the assessment of the compensatory damages. They are:
· the failure to proffer a proper apology and/or the proffering of "a mealy mouthed non-apology";
· defending its actions by the statements made to the SMH journalist knowing that in all likelihood the statements would be published;
· the pleading of par 10 of the defence and persisting in that defence when there was no reasonable basis for pleading or maintaining such a defence;
115 Although I was initially attracted by Mr Collins QC's analysis of the apology on reflection I am of the view that it is not an appropriate description of it. There is a clear statement of regret in the first paragraph; a clear statement of apology for the overpayment in the second paragraph and a clear statement of apology for the "delay" caused by the Casino in the third paragraph. It may have been of more comfort to have received a letter without reference to the involvement of others and their contribution to the delay but I am not satisfied that the terms of this letter warrant an increase in the compensatory damages to be awarded to the plaintiff.
116 The statements made by the Casino to the SMH reported in the published article as amounting to the Casino "defending" its actions were not dealt with at all in the oral evidence given by the plaintiff. He did not suggest that he felt more hurt to his feelings when he read the article indeed he did not give evidence that he read the article. However the plaintiff brought defamation proceedings against the defendant and Mr Grimshaw in respect of the article and some of the evidence in that trial, in which I was the trial judge, is evidence before me. (Ex J)