Weir & Anor v Tomkinson [2001] WASCA 77

Weir & Anor v Tomkinson [2001] WASCA 77 - WASCA 2001 case summary — Zoe

[50]

21 The respondent's evidence was that the second appellant was unresponsive to his request to move out of the way and that he then engaged the clutch with his left hand and put the motor cycle into gear with his left foot. Once he had engaged the first gear, and without accelerating the motor cycle at all, he said he very gently applied the clutch and let it move forward very slowly. He said that by reason of the second appellant's position, he was unable to ride directly out of the carport at a slight angle, but had instead to manoeuvre the motor cycle's right handlebar around the exterior rear vision mirror of his car. His motor cycle was just a matter of inches away from the car. He was concerned about hitting the rear vision mirror, which was well below his eye level and he was looking down at it as well as glancing across at the second appellant, who was then standing about a foot or "maybe" 18 inches away to his left and slightly in front of him. He glanced at the second appellant to make sure he was not in a position where he was going to obstruct the respondent from leaving. After he had manoeuvred the motor cycle past the mirror, with both his feet on the ground, still without applying any acceleration, he said its front wheel would have been very close to being level with the front of his car when, without warning, the second appellant grabbed his left hand, which had been on the clutch, and pulled it away from the handlebar. Because the motor was idling in choke, there was still sufficient engine power when the gear engaged and the motor cycle lurched forward for no more than a couple of feet, until it stalled. At this time, he had only one hand on the handlebars. The second appellant, he said, grabbed the left handlebar with his other hand and proceeded to pull the whole machine over to the left, almost as if it were in one motion. As he explained it, his hand was pulled from the motor cycle and all of a sudden it was going over to his left and he was on the ground, having hit the concrete carport floor. Once his hand had been pulled from the machine, he said, everything became slightly blurry and happened quickly.

[53]

"[19] ... 'I saw the [respondent] seated on his motor cycle. He was sitting on the motor cycle. The engine was going and he had on a black open faced helmet and [the second appellant] was standing to his left and they were engaged in some earnest conversation. [The respondent] was shaking his head but I couldn't hear what was being said at the time. [The motor bike engine was running at the time. It was a noisy engine]. I was walking slowly across the front of the BMW [motor car] which had been reversed into the carport. I started off with perhaps a metre and a half, two metres [in front of the BMW motor car] and then I was walking slowly towards where they were. I was looking at those two. As I crossed the front of the BMW motor car [the second appellant] looked at me, followed shortly after by [the respondent] who also looked at me. I continued to walk. It was my intention to walk to the side of - and stand by the side of [the second appellant] and I was walking across the front of the BMW and across the front of the motor cycle. I would have been about a metre from the front of the motor cycle when it suddenly raced towards me and it struck me. [At the time [the respondent] looked at me there was nothing between him and me and I was about a metre away from him]. [The first appellant was then asked to describe how and where the motor cycle hit him and he stood up in the witness box and demonstrated and testified further]. The front wheel of the motor cycle went in between my legs here and something hit me on the shoulder and the arm. I think it was the handlebar that hit me on the top of the arm here. I am not sure what hit me on the forearm. [Then] I sort of flinched and I tried to get out of the way and with the force of the motor cycle hitting me and trying to get out of the way, I stumbled backwards and backed onto the parked vehicle and was sort of supported by the vehicle. I didn't fall to the ground.'

[20] [The first appellant] was then asked if he had seen [the second appellant] interfere with [the respondent] or the motor cycle in any way. He testified that he had a clear view of the handlebars of the motor cycle and [the respondent] but he did not see [the second appellant] reach out and grab [the respondent's] arm or the handlebars testifying that he would have seen it if it had happened.

[21] [The first appellant] then said that he spoke to [the respondent], saying, "You're under arrest for assaulting me", but that prior to that point [the respondent] was repeating, "you bastards" to both him and [the second appellant]. Next he says "[the second appellant] then put his hand on [the respondent's] shoulder and said, 'You're under arrest Nick' or words to that effect.

[22] [The second appellant] said that he followed [the respondent] out of the front door of the house:

'... and just stated to him that we only wanted his co-operation and if he co-operated it wouldn't take us long and we'd be out of there. He kept on repeating that if he wasn't under arrest he was leaving. I followed him into the carport where there was a BMW car which was facing forward out of the carport toward the road and a Harley Davidson motor bike also parked facing toward the front. He started up the bike and I said that as a police officer I was ordering him to stay while I asked him questions regarding our inquiry. [At this time] he was off the bike. He said, 'I'm not a police officer any more' or he said he wasn't in the police force any more. I asked him if he was still a police officer. He said he wasn't being paid. I said, 'You are still a police officer and as such I'm ordering you to stay while I ask you questions'. He said, 'If I'm not under arrest, I'm leaving'. I said, 'You know you're not under arrest'. [Then] he got on his motor bike, put on his helmet and got seated on the bike ready to leave. It was an open faced helmet. I can't recall if he was wearing any glasses or sunglasses ... [He] asked me to get out of the way. I said, 'I'm not in your way' which I wasn't. I was probably level with the front of the front wheel of the bike and standing a couple of feet to his left hand side. Away from the car and the bike. And the bike I suppose would have been a foot to 18 inches away from the side of the car. He edged the bike forward or it came forward slowly. Now whether he did something with the controls to make it move forward or whether he - because he had his feet on the ground, whether he moved it forward, I don't know, but he came forward a short distance, a foot or so, and said something. I didn't hear what he said. It was quite noisy with the motor bike going. At that point I picked up some movement to the side and turned around or looked to the side and it was - [the first appellant] was coming out of house ... but when I turned to look, [the first appellant] was coming around the divide, if you like, between the carport and the entrance to the house. And was coming around that, walking in front of the car and then round towards us. [I was looking] at [the first appellant]. [Then] the motor bike accelerated and crashed into [the first appellant]. Well, I mean, I'm sort of looking to my left, to the front of the BMW, the motor bike would have just been over here and the bike was moved forward and he's moved forward, he's on the bike, obviously, and crashed into [the first appellant] who I was looking at. [I heard] the motor revved quicker. [The first appellant was] about a metre [from the motor bike when it moved forward]. He was about level with the front passenger side wheel of the BMW car. [Then] it all happened very, very quickly. I was concerned for [the first appellant], obviously, and I grabbed the handlebar and [the respondent's] arm and reefed him back towards me away from [the first appellant] and pulled the bike over. [Prior to the bike moving forward and striking [the first appellant] I had not made any contact with either the bike or [the respondent]]. [Then] the bike went down. [The first appellant] was sort of half on the bonnet, if you like, of the car and sort of tried to get himself right and [the respondent] was trying, I think, to prevent the bike going all the way down. I think he had his foot out and was calling out 'bastard' or 'bastards', I can't specifically remember, and he was quite upset. [The first appellant] [then] advised him that he was under arrest for assaulting him. I put my hand on [the respondent's] shoulder and reiterated, 'Do you understand you're under arrest for assault?'. [The respondent] put the bike upright and from memory he took the key out, turned it off, the ignition key, and [the first appellant] walked inside. [The respondent] followed him inside and I followed him inside.'

[23] [The second appellant] then says that inside the house [the respondent] was either going to make a coffee or he put the kettle on, one or the other, but he certainly saw him put the kettle on and then take some cigarettes and he may have lit a cigarette, he made himself a cup of coffee and then he made a telephone call which, according to [the second appellant's] version of events was to his solicitor Mr Quigley's then partner, Mr Coulson, in consequence of which a short time later Mr Quigley telephoned [the respondent]."

[56]

"[26] I find, on the balance of probabilities, that [the respondent's] version of events is more accurate than that of [the appellants]. I find that, while seated astride his motor cycle with the engine going, the [respondent] was slowly releasing the clutch with his left hand permitting power to go to the drive wheel of the motor cycle allowing it to move forward slowly when the second [appellant], irritated that his direct order to the [respondent] to remain for questioning even whilst not under arrest had not been obeyed, reached out and grabbed the [respondent's] arm to prevent him from leaving and in so doing took his arm off the clutch which in turn caused the motor cycle to lurch forward. At this moment the first [appellant] was approaching from the front of the BMW motor car and whilst he clearly had the [respondent] and the second [appellant] in view, those two were so engrossed in their confrontation that [the respondent] did not see the [first appellant] approaching, and the motor cycle in lurching forward hit the first [appellant] as he came out from the front of the BMW motor car into the front of the motor cycle. I find however that the first [appellant] was not struck in the manner he alleges. I find his version of these events to be quite improbable. If the motor cycle was accelerating in the manner suggested by each of the [appellants] so that the entire weight of this very heavy machine was taken between the legs by the first [appellant] there would have been evidence of other injury but the only evidence of any injury to the first [appellant] was by way of a very minor bruise to his upper left arm and another minor bruise to the inside of his left forearm. I find that these were caused by the handlebar of the motor cycle. And it was the handlebar of the motor cycle coming forward as the motor cycle lurched that struck the first [appellant] and, as may be clearly envisaged with the assistance of the photographs, almost pinned the first [appellant] between the motor cycle and the BMW motor car until the second [appellant] succeeded in pulling the [respondent] on his motor cycle down to the ground.

[27] Accordingly, it can be seen I reject the second [appellant's] evidence that he did not pull the [respondent] from his motor cycle until after the motor cycle had struck the first [appellant]. I find that it was the second [appellant's] pulling of the [respondent's] left arm that caused the motor cycle to hit the first [appellant] and that the striking of the first [appellant] by the motor cycle was accidental in the sense that it was not intended either by the [respondent] or, obviously, by the second [appellant]. It was an unintended consequence of the actions of the second [appellant]. I should make it plain too, that I find it highly improbable that this [respondent] would have deliberately run his motor cycle at the first [appellant]. Whilst I appreciate that the discernment of credibility of witnesses from the demeanour of witnesses whilst giving evidence is a thoroughly difficult task for a judge sitting alone, and that that difficulty is probably compounded by the fact that the three parties in this action are all experienced police officers and, it may be inferred, experienced witnesses, I nevertheless formed the clear impression that the [respondent] was a controlled type, probably more controlled than the second [appellant], more in charge of both himself and the situation than the second [appellant]. There would be no reason that I can discern, on the evidence, or in my assessment of the credit and character of the parties, why this [respondent], an officer in the Western Australian Police Force under suspension without pay, his future in the balance, would do anything as foolhardy as deliberately driving his motor cycle into another policeman whilst yet another policeman stood and watched.

[28] Additionally, it is truly remarkable that if, as each of the first and second [appellants] would have me believe, the [respondent] deliberately ran his motor cycle into the first [appellant], why neither of them, having ample opportunity to do so, asked him why he did it. It must have struck them as being truly remarkable that a police officer, albeit a police officer under suspension, would try and run down another police officer. There was no evidence from either of the [appellants] that the [respondent] was angry, agitated or out of control. The only evidence of his anger was after he had been pulled from the machine. He was subsequently investigated in respect of some comparatively trifling matters of the video and the photograph but not asked about his motivation in relation to the most serious allegation of them all. I've already found that the [appellants] had ample opportunity to ask the [respondent] for his reasons. It was submitted to me that the opportunity for this inquiry was relatively limited because of the directions given by Mr Quigley to each of the [appellants] that they were not to question the [respondent] further, that he would refuse to answer their questions and the like. As is obvious that didn't deter investigation in relation to the alleged pornographic video and the photograph.

[29] In relation to the arrest I find that the first [appellant] was certainly struck by the motor cycle, but not in the way he says. He too was obviously concerned to keep the [respondent] at the premises whilst the search continued as witness the evidence of the second [appellant] that the first [appellant] told the [respondent] he was not under arrest but that he wanted his co-operation in the conduct of the search, meaning he wanted him to stay until the search was complete. Because of the first [appellant's] deliberate and considered testimony that he had the second [appellant] clearly in view at all material times and that he did not see him touch the [respondent] or his motor cycle before the [respondent] accelerated into him deliberately, he alleging he had made eye contact with the [respondent] immediately beforehand, and being prepared to say that he was under no doubt but that the [respondent's] actions were deliberate, (all of which I reject) it follows from my previous findings that the first [appellant] used the occasion of him being accidentally struck by the motor cycle, as I have found, to arrest the [respondent] for an alleged assault and thereby prevent the [respondent] from leaving. This, I find, was his motive.

[30] As regards the second [appellant], in my opinion he saw the opportunity that the first [appellant's] actions had [led] to the situation and decided independently to act in support of the first [appellant] by also telling the [respondent] that he was under arrest."

[128]

(i) The trial Judge found (at paragraph 14) that the second defendant would have been quite irritated by the plaintiff's insistence upon leaving when there was no evidence to that effect nor was it put to either defendant in cross-examination nor was such a finding inherently probable.

(ii) The trial Judge found (at paragraph 24) that the police believed the evidence of the plaintiff's housemate as to the ownership of the seized video, and believed that the plaintiff had no prior knowledge of the video, did not know it was in the house and knew nothing of its contents and that the plaintiff could not, on the evidence of the photograph have been said to have been in possession of a smoking implement when there was no evidence of any such beliefs on part of "the police" nor were such matters put to either defendant.

(iii) The trial Judge found (at paragraph 24) that the seizure of the photograph and the video were unlawful as being in excess of the power conferred by the search warrant when such was not put to either defendant nor to counsel for either party during the course of the hearing (thus denying the defendants procedural fairness).

(iv) The trial Judge found that there was ample time for the defendants to question the plaintiff as to his motives because Mr Quigley's direction to the plaintiff to not answer any questions "didn't deter investigation in relation to the alleged pornographic video and the photograph" (at paragraph 28) when there was no evidence to that effect nor was such matters put to either defendant.

(v) The trial Judge found (at paragraph 29) that the first defendant used the occasion of being accidentally struck by the motor cycle to arrest the plaintiff for assault and thereby prevent the plaintiff from leaving when there was no evidence to sustain such a finding, nor was such finding put to the first defendant, and such finding is inherently improbable, given that at the time of the arrest the plaintiff's motor cycle was stalled, damaged on the ground that the plaintiff was calling each defendant "bastards".

(vi) The trial Judge found (at paragraph 31) that each of the defendants would not have taken the matter further but for the intervention of Mr Quigley when there was no evidence to sustain such a finding, such finding was not put to either defendant in cross-examination, nor is the finding inherently probable.

(vii) The trial Judge found (at paragraph 34) that the defendants treated Mr Quigley's threats seriously and accordingly prosecuted the assault charge against the plaintiff to defend themselves from the plaintiff's claim when there was no evidence to support such a finding, nor was such put to either defendant and such finding is inherently improbable.

(viii) The trial Judge found (at paragraph 53) that each defendant was motivated by seeking to detain the plaintiff until the search was complete and then "having painted themselves in a corner by the battery arrest and false imprisonment, felt they had no option but to continue the prosecution" when there was no evidence to support such a finding nor was such put to either defendant and such finding is inherently improbable."

[191]

"The three heads under which damages are recoverable for those torts for which damages are 'at large' are classified under three heads. (1) Compensation for the harm caused to the plaintiff by the wrongful physical act of the defendant in respect of which the action is brought. In addition to any pecuniary loss specifically proved the assessment of this compensation may itself involve putting a money value upon physical hurt, as in assault, upon curtailment of liberty, as in false imprisonment or malicious prosecution, upon injury to reputation, as in false imprisonment or malicious prosecution, upon injury to reputation, as in defamation, false imprisonment and malicious prosecution, upon inconvenience or disturbance of the even tenor of life, as in may torts, including intimidation. (2) Additional compensation for the injured feelings of the plaintiff where his sense of injury resulting from the wrongful physical act is justifiably heightened by the manner in which or motive for which the defendant did it. This Lord Devlin calls 'aggravated damages'. (3) Punishment of the defendant for his anti-social behaviour to the plaintiff. This Lord Devlin calls 'exemplary damages' ...

The tort of defamation, to which Lord Devlin made only a passing reference in Rooks v Barnard [1964] UKHL 1; [1964] AC 1129, has special characteristics which may make it difficult to allocate compensatory damages between head (1) and head (2). The harm caused to the plaintiff by the publication of a libel upon him often lies more in his own feelings, what he thinks other people are thinking of him, than in any actual change made manifest in their attitude towards him. A solatium for injured feelings, however innocent the publication by the defendant may have been, forms a large element in the damages under head (1) itself even in cases in which there are no grounds for 'aggravated damages' under head (2). Again the harm done by the publication, for which damages are recoverable under head (1) does not come to an end when publication is made. As Lord Atkin said in Ley v Hamilton 153 LT 384 at 386: 'It is impossible to track the scandal to know what quarters the poison may reach'. So long as its withdrawal is not communicated to all those whom it has reached it may continue to spread. I venture to think that this is the rationale of the undoubted rule that persistence by the defendant in a plea of justification or a repetition of the original libel by him at the trial can increase the damages. By doing so he prolongs the period in which the damage from the original publication continues to spread and by giving to it further publicity at the trial as in Ley v Hamilton, extends the quarters that the poison reaches. The defendant's conduct between the date of publication and the conclusion of the trial may thus increase the damages under head (1). In this sense it may be said to 'aggravate' the damages recoverable as, conversely, the publication of an apology may 'mitigate' them. But this is not 'aggravated damages' in the sense that that expression was used by Lord Devlin in head (2). On the other hand the defendant's conduct after the publication may also afford cogent evidence of his malice in the original publication of the libel and thus evidence upon which 'aggravated damages' may be awarded under head (2) in addition to damages under head (1). But although considerations such as these may blur the boundary between compensatory damages under head (1) and compensatory damages under head (2) in the case of defamation, they do not affect the clear distinction between the concept of compensatory damages and the concept of exemplary damages under head (3)."

At a glance

Court

Decision date

Before

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Source

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Judgment (204 paragraphs)

Weir & Anor v Tomkinson [2001] WASCA 77 (15 March 2001)

Parties

Cases Cited (26)