Bennie v State of New South Wales - [2009] NSWSC 96

No judgment structure available for this case.

CITATION: BENNIE v STATE OF NEW SOUTH WALES [2009] NSWSC 96

HEARING DATE(S): 22.10.07-12.11.07

JUDGMENT DATE :
3 March 2009

JUDGMENT OF: Hulme J at 1

DECISION: Orders deferred

PARTIES: Robert Maurice BENNIE
State of New South Wales

FILE NUMBER(S): SC 11447/06

COUNSEL: Plaintiff: R Burbidge QC: J Garnsey QC: G Radburn
Defendant: P Bodor QC: M Hutchings: V Hartstein

SOLICITORS: Plaintiff: WJ Grace & Co
Defendant: IV Knight Crown Solicitor's Office

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
11447 of 2006
HULME J

Tuesday, 3 March 2009

Robert BENNIE v STATE OF NEW SOUTH WALES

JUDGMENT

: Because of the length of these Reasons, and even though the nature of the issues precludes dividing them into water-tight compartments, it has been convenient to insert a number of subject headings, viz:-

Paragraph

Damages Economic Loss 469
Damages – Non Economic Loss 485
Damages – Aggravated & Exemplary 488
Damages – Other 507

Introduction and Pre-Menindee History

2 The Plaintiff in these proceedings, who according to his wife, has sued by her as his tutor since 24 January 2007, was a police officer. He reported information to the effect that another police officer was engaging in criminal behaviour or other impropriety. He says he was assured that his reports would be kept confidential. He complains that they were not and thereafter he was subjected to various forms of harassment, including assault occasioning actual bodily harm, by other officers and did not receive the support from his employer that he should have received for trying to fulfil his duties by making the report. He says that this conduct by the members of the police force led to him having what I may summarise as a nervous breakdown and various physical injuries, and being removed from the police force. The specification of the injuries and disabilities extends to something under 5 pages. For these matters he claims damages. He alleges that, by its servants or agents, the Defendant was negligent, breached the contact by which the Plaintiff was employed and guilty of assault.

3 The Statement of Claim is hardly a prime example of the draftsman’s art but any difficulties in that regard can be left for the moment. The Defendant does not dispute that the Plaintiff is unfit for a role as a policeman but does dispute that it did anything rendering the Plaintiff entitled to succeed in his claim.

4 The Plaintiff was medically discharged from the police service on 5 November 1992 having been certified unfit. The certificate of the Police Superannuation Advisory Committee issued at that time was subsequently the subject of amendment on two occasions and the final certificate which appears to have been issued on 17 July 1995 certified the Plaintiff’s incapacity as due to an “adjustment disorder with depressed and anxious moods”. On 1 December 1995 the delegate of the Commissioner of Police decided that that infirmity was not caused by the Plaintiff being hurt on duty, a decision taken pursuant to Section 10(B)(3)(a) of the Police Regulation (Superannuation) Act, 1906.

5 The Plaintiff appealed to the Compensation Court of New South Wales against that decision and on 11 September 1998 his Honour Judge Geraghty set aside that decision and found that the Plaintiff “was hurt on duty, and that, as a result, as at November 1992, as at 17 July 1995 and as at present, he was and is unfit for police service”. The Plaintiff has alleged that the Defendant is estopped in these proceedings by some of the findings and conclusions of Judge Geraghty. I delivered a Judgment on that issue on 22 October 2007 and further consideration of that topic can be deferred.

6 The number and nature of the issues that arise make it convenient to deal with the events in the Plaintiff’s life substantially in chronological order.

7 He was born in April 1957. He attended a variety of schools in New South Wales, completing the Higher School Certificate with sufficient marks to undertake tertiary studies in chemistry and physics at Sydney University. He did not undertake such studies, joining the State Rail Authority and serving as a station assistant for some 6 months before joining the army in about July 1976.

8 In evidence tendered on behalf of the Plaintiff from his army career were a number of letters of commendation for his actions in various situations. By way of example, one letter relating to events when Defence personnel were troubled by a strike at Sydney airport recorded that the Plaintiff took control of the situation, maintained his calmness and was helpful and courteous to all. Another remarked that officers were particularly impressed with the Plaintiff’s courteous, confident and very competent approach to his duties.

9 A Course Report of December 1979 “To qualify students in Subject one for Corporal”, contained a recommendation that the Plaintiff should be considered for promotion in the near future and recorded:-

10 While in the army the Plaintiff became a corporal, leaving the army in July 1982 with the intention of joining the police force.

11 He commenced at the Police Academy at Redfern in November 1982 and was sworn in as a constable, - I infer probationary – in February 1983.

12 During the Plaintiff’s police service he participated in or was witness to a number of incidents calculated to be distressing. In June 1983 he was closely associated – his counsel’s words - with an incident when a woman had died in a bath, as a result of immersion in scalding hot water.

13 A Probationary Constables Assessment Form dated 23 June 1983 concludes with the remarks:-

“Probationary Constable R M Bennie is a very dependable police officer, who at this early stage of his police career had developed this essential trait. Has a very high work rate and is willing to be involved in new and old tasks. His attitude to fellow police and members of the public is excellent. He has proved to be a valuable acquisition to the Force. I recommend that his appointment be confirmed.”

14 A number of other similar documents between 11 October 1983 and 18 January 1984 were equally complimentary recording, inter alia, that the Plaintiff displayed enthusiasm, coolness and logical thinking and interest in his fellow police officers and members of the public and that his progress was considered to be very good. On 11 February 1984 he was confirmed as a constable of police, some 7 months earlier than normal.

15 A series of police Work Performance Appraisal Forms covering the period of February 1986 when the Plaintiff was the most junior officer at Leeton to January 1990 when the Plaintiff was stationed at Campbelltown and encompassing a period of some years when he was the only police officer at Tallimba were also uniformly complimentary containing comments such as:-

“He is a very efficient and effective police officer.”

“He remains calm under pressure … and completes allotted tasks in a satisfactory manner”

“… has an excellent manner when speaking to members of the public … . He is very co-operative with all Police at this station and I feel could be entrusted to carry out any allotted task with minimum supervision or checking.”

“He is always immaculate in appearance, has a very positive and polite attitude towards the public. …with very high moral standards, he is highly regarded in the village of Tallimba. In my opinion he is honest and trustworthy.”

“the Constable is always neat and tidy and his Station and records are a credit to him.”

“He is a valued worker.”

“… in his relationship with the public he constantly exceeds the requirements of the job.”

16 A work appraisal form relating to the Plaintiff and dated February 1990 while the Plaintiff was working at Campbelltown contains remarks to the effect that the Plaintiff was a valued worker, always willing to lend a hand and co-operate, very dependable, had a good relationship with the public and in this regard exceeded the requirements of the job, his integrity was beyond question and his adjustment to a very busy working environment after service in a one man country station was very pleasing.

17 I do not ignore the fact that in these reports the Plaintiff’s performance was often graded as satisfactory or “meets the requirements of the job” rather than some higher grading. Nevertheless, the passages I have quoted seem to me to fairly depict the assessments made by a significant number of his superiors as to the Plaintiff’s qualities and performance as a police officer.

18 In light of some later criticism of the Plaintiff’s performance, it is also appropriate to record that reports of March 1989 and February 1990, under headings of “Written Skills” and “Planning and Organisation” it was recorded:-

“Paper work is always concise and accurately expressed, neat and tidy.

Copes with routine matters with apparent ease. Has sufficient experience to be able to handle complicated matters if required.

Robert takes care with his written work which is presented in a clear, concise and correct manner.

Robert sets about his work so that it fits in with others. He likes to have everything in order, clean and tidy.”

19 The Plaintiff married in 1986, the same year in which he was posted to a one-man station at Tallimba.

20 In August 1988 the Plaintiff applied to attend an instructional training course at the Goulburn Police Academy and qualified for the role of a divisional training sergeant. That is not a rank but a qualification that enables its holder to handle new probationary constables when they emerge from the academy in order to integrate them into the police force and also to deliver on-the-course training lectures. The Plaintiff attended the course and was successful although he said his appointment to that role at Campbelltown police station did not occur until the day after the Dookie Hillier matter referred to below was resolved.

21 In March 1989, he again attended the Academy and qualified as a patrol commander, the qualification apparently necessary to be in charge of a police patrol. Such a patrol can be a one-man station or a region. It is a position rather than a rank. (The circumstance that the Plaintiff manned the one-man station at Tallimba prior to attaining this qualification was not explored in evidence.)

22 While at Tallimba the Plaintiff had a number of run-ins with a local identity who, in consequence of the use of his fists had acquired the name “Dookie” Hillier. One particular altercation led to Mr Hillier being arrested and convicted but he counterclaimed that the Plaintiff had assaulted him. The Plaintiff was convicted at first instance of assault occasioning actual bodily harm. He was placed on restricted duties until an appeal to the District Court was upheld.

23 According to the Plaintiff, the magistrate who convicted him was someone whom the Plaintiff some years earlier had arrested for driving under the influence but, due to the intervention of a superior officer, had not been allowed to charge. No application was made for that magistrate to disqualify himself, the Plaintiff saying that he had figured that in discharging his duties the magistrate would “lay down the law dead square and, and he didn’t” and, later, that the Plaintiff had no idea applications to disqualify could be made.

24 That conviction distressed the Plaintiff greatly. As he saw it, the conviction threatened his police career and changed the way he operated as a police officer. Although he had had legal assistance provided at first instance, that was denied him for the appeal, albeit an ex gratia payment in that connection was later made.

25 Prior to the determination of the appeal against conviction, the Plaintiff was moved from Tallimba to Campbelltown, a move that may well have been inspired by the conviction and the fact that he had been placed on restricted duties. This move occurred in about June 1989.

26 After some time at Campbelltown, the Plaintiff was moved to the “Transit Police”, and in this connection seems to have been based in Liverpool. A move to the Transit Police appears from the Plaintiff’s evidence, to have been, at least sometimes, by way of punishment although the Plaintiff said that he had earlier requested the move. I accept this evidence there being none that the Plaintiff’s move to that group was intended as a punishment to him.

27 On 5 July 1990, the Plaintiff was on duty and attended the cells at Liverpool Police Station. There he saw a prisoner, Scott Yuill hanging from the bars. He cut the prisoner down and immediately began mouth-to-mouth resuscitation. He declined an offer from another officer to take over that aspect of resuscitation instead of the cardiac compressions she was administering because “I have already been exposed” - presumably to the risk of AIDS or the like. After some 15 to 20 minutes Ambulance officers arrived and took over. At one stage they said that the prisoner was gone, but in fact he began to breathe and was taken to hospital with the Plaintiff in the van. It appears that the prisoner finished up brain-damaged.

28 During the course of the Plaintiff’s resuscitation attempts the Plaintiff was given a Laerdal mask, a device available to police officers to minimise or eliminate the risk of catching infections, but found that this did not work. Also during the resuscitation attempt the prisoner belched with an odour of pepperoni pizza and the Plaintiff said that he has not been able to deal with that smell since.

29 According to the Plaintiff, other officers stood around looking.

30 After the incident the Plaintiff was required to stay at the police station and talk about the incident. He found some of the discussion, inter alia a question whether he was troubled that his lips had touched the prisoner’s lips – offensive and inappropriate. He was advised to go and see the Police psychology unit. The Plaintiff did this a few days later, seeing a Robyn Deane-Butcher.

31 Within the next few days, the Plaintiff was interviewed – at least in one connection he preferred the term “investigated” – by Inspector Grace concerning the attempted suicide and some matters involving actual or possible misconduct by other Transit Police.

32 Inspector Grace and other police gave evidence. Most have retired from the Police Force but it will be convenient to continue to refer to them using the rank they had at the time. That said, I shall not always include the appellation “senior” before “constable” and “sergeant”.

33 Inspector Grace said that during his interview with the Plaintiff concerning the suicide, the Plaintiff had started to cry and he became so concerned for the Plaintiff’s welfare that he stopped the interview and later contacted a psychologist at the Police Welfare Branch. Inspector Grace said that before the interview he also spoke to Inspector McGoldrick who indicated to the effect that the Plaintiff was a fragile man. In cross-examination Inspector Grace agreed with the description of the Plaintiff as a sensitive person and said that he considered the Plaintiff to be highly strung.

34 In December 1990 the Plaintiff was serving at Newtown Police station and documents of 5 and 6 February 1991 say that he was transferred to that patrol to bolster the number of experienced Police at the patrol, describe his performance there as in a “most competent and professional manner” and refer to his “display of professionalism, enthusiasm and dedication”.

35 The Plaintiff was certified as unfit for work during the period. He would seem to have been suffering from glandular fever. Medical Certificates in Exhibit 31 cover 3 weeks although the Plaintiff’s evidence indicated it was longer. The Plaintiff was supported in this account by Exhibit K(A) which indicates he was off work from 4 March to 12 May 1991.

36 In May 1991 the Plaintiff attended the scene of a suicide at Central Railway Station where a passenger seems to have been hit by one train and thrown under the wheels of another. The Plaintiff’s involvement included collecting various body parts and assisting in the removal of the aftermath. According to the Plaintiff this had a significant impact on him and he attended the psychological section of the Police Force on 10 July in connection with it.

37 In about June 1991 the Plaintiff, who seems to have applied unsuccessfully for the position of lock-up keeper at Wilcannia was selected for that position at Menindee. Interestingly, in light of later events, the selection panel consisted of Senior Sergeant D J Burrows and Senior Constable R Blayden. The notes of the selection record that the two were unanimous in their view that the Plaintiff showed greater merit for the position and that among the other applicants was Constable K Strong. The Plaintiff took up the position at Menindee on 18 August 1991.

38 Before turning to events there, reference should be made to further evidence of the Plaintiff’s then psychological state. One document from the psychology section of the Police Service indicate that the Plaintiff was seen or spoken to by a member of that section on 9 July, i.e. 4 days after the suicide attempt in the police cells, 2 August and 26 October 1990 and 21 January and 10 July 1991. The reason stated on that document for referral – I infer the first contact - was “Pris Attempted Suicide in Custody”. A handwritten note of 26 October 1990 records, inter alia:-

39 Later handwritten notes record, inter alia (The underlining of dates is mine.):-

“Bennie 21.1.91

Phone call: 3.5.91.

Phone call 26.6.91

Robert 10.7.91

^st

40 I should add at this stage that there was little evidence directed to the event that may have inspired the reference to shooting a policeman or detective and apprehending offenders. There was no evidence to suggest that the notes are not accurate in respect of those matters.

41 Mrs Bennie also gave some evidence concerning the condition of the Plaintiff prior to going to Menindee. She said that the Plaintiff has spoken to her of distressing events earlier than the incident involving Mr Hillier although without details. I do not infer from her evidence that the Plaintiff was distressed more than would be normal for most people by these earlier events. Mrs Bennie said that after the incident involving Mr Hiller, the Plaintiff had exhibited remorse at the injury he had inflicted on Mr Hillier, which consisted of or included some broken facial bones, and became very worried at being charged. He was distressed, he skipped meals, he had some difficulty sleeping at that time and did not have as much energy. She said that things were “pretty okay” from then until the incident involving Mr Yuill. Family life was happy and the Plaintiff kept up his fitness.

42 The incident involving Mr Yuill badly affected the Plaintiff who then had difficulty in sleeping and eating. Some things were not to be bought or cooked, others he only picked at and he lost weight. The Plaintiff suffered from sleeplessness, tossing and turning, and he suffered bad dreams. Mrs Bennie would find that the Plaintiff had left their bed in the middle of the night, and would be sitting up. She would talk to him, take him back to bed and the 2 would try to resume sleeping. Referring to visits to the Police psychology unit, he told her that it was good to be able to talk to somebody about the incident.

Menindee

43 As I have said, the Plaintiff took up the position at Menindee on 18 August 1991. The only other police officers serving at Menindee during the Plaintiff’s time there were Senior Constable Blayden and Constable Strong who had been seconded from Broken Hill, arriving there some 12 months prior to the Plaintiff. In Menindee the lock-up keeper’s house where the Plaintiff after his arrival resided was between the police station and Senior Constable Blayden’s residence.

44 The Plaintiff said that on his first arrival at Menindee, Senior Constable Blayden told him that the he should not pass on to Constable Strong information about persons being investigated because Constable Strong would pass on the information to those being investigated. Although it may be that if this occurred, it occurred at the barbecue referred to below, according to the Plaintiff, Constable Blayden also told the Plaintiff that Constable Strong had accounts with two shops which were far too high and almost certainly his accounts at the hotels were also too high.

45 The Plaintiff said that once having had the opportunity to form his own opinions of Constable Strong, those opinions were totally adverse.

46 On 23 August 1991, the Plaintiff arrested a Mr Flavell after a roadside test indicated he was driving with an excess concentration of alcohol in his blood. At the time Constable Strong searched the vehicle Mr Flavell had been driving and found a rifle with bullets in the magazine. He arrested the owner of the vehicle, a Mr Graham, for aiding and abetting Mr Flavell’s driving under the influence, possessing a loaded firearm in a public place and handling a firearm whilst under the influence. There was no breath analysis equipment in Menindee and the Plaintiff commenced to drive Mr Flavell to Broken Hill. While doing so, he received a radio call from Constable Strong who remarked that he was having trouble with Mr Graham. The Plaintiff suggested that Constable Strong lodge Mr Graham in the cells. On the Plaintiff’s return to Menindee he observed Constable Strong and Mr Graham in the same room of the station and noted that:-

“Constable Strong’s uniform was extremely untidy and messed up and the crutch of his trousers was torn and his underwear was showing through the crutch of the trousers at the front. His shoes were scuffed, his hair was a mess, and Mr Graham was just like meek, absolutely meek. I formed the opinion that he had been assaulted. I took him into a separate room and spoke with him…”

47 The Plaintiff went on to say that Mr Graham’s body language was completely incongruous with his words. Asked if Mr Graham made any complaint, the Plaintiff said “absolutely no complaint whatsoever, completely refused”.

48 It is common ground that at about this time - in evidence the Plaintiff agreed that it was 2 days later - the Plaintiff attended a barbecue at Senior Constable Blayden’s residence. A number of other government type employees, such as a fish inspector and a teacher were there. According to the Plaintiff a number of these persons made remarks about Constable Strong to the effect that he had been guilty of appalling policing behaviour, driving the police vehicle while intoxicated or under the influence of drugs, assaulting and verballing prisoners, threatening owners of male dogs when his own dog came on heat, and stealing money from the police station tea fund. The Plaintiff said that on that occasion he was also informed that Constable Strong had been sexually harassing one of the local shopkeepers, a Penny Papalouca.

49 According to the Plaintiff, as a result of these conversations and his own contact with Constable Strong, the Plaintiff formed the view that he was required to report Constable Strong’s actions to a senior officer and phoned a Sergeant Morton at Broken Hill. Soon after, on a date which, it seems to be accepted, was 28 August 1991, the Plaintiff had an interview in Broken Hill with Sergeant Morton. The Plaintiff maintained that his going to Broken Hill was not to get rid of Constable Strong; rather was his motivation to do what a police officer is supposed to do.

50 The Plaintiff said that he relayed to Sergeant Morton many of the matters he had heard about Constable Strong. Sergeant Morton suggested that Inspector Shipp, the Broken Hill Patrol Commander should be brought into the conversation. He was, and the Plaintiff repeated these matters to Inspector Shipp.

51 According to the Plaintiff, Sergeant Morton assured him that everything would be kept confidential. Inspector Shipp “launched into a short, extremely formal speech at me that sounded like it was a pre-prepared thing requesting me in formal terms to tell him whether I was making an official complaint”. The language of this speech was described as so suddenly different to the language that had been occurring before then that the Plaintiff formed the opinion that he was being set up and that the senior officers did not want to know. The Plaintiff also said that the body language of both Inspector Shipp and Sergeant Morton did not match their words. The Plaintiff felt he was being fobbed off and said that he was not prepared to make a formal complaint. After this, Sergeant Morton told the Plaintiff that he should keep a record of any future misdeeds of Constable Strong and report them and that Sergeant Morton would maintain a more diligent control of Constable Strong and would visit Menindee more often. The Plaintiff said that he was “freaked out” by Sergeant Morton and Inspector Shipp.

52 In cross-examination, the Plaintiff asserted that he gave Sergeant Morton the names of people who had supplied him with information although the only names he could recall mentioning were Penny Papolouca, her husband Michael and Jim Kennedy. He asserted that he mentioned the Graham incident to Inspector Shipp. He volunteered that, “I tried to make the complaint and it was refused, that’s what happened. The complaint was spat back in my face and I knew exactly what happened.” He denied that he had been told or advised to put the complaint in writing, also saying that each officer receiving the information the Plaintiff had was obliged to pass it up the chain of command until it reached the Internal Affairs section. He acknowledged that he did not know how good his information was, adding that he made that clear to those he spoke to.

53 Some further evidence as to what occurred at this meeting is to be found in an aide-memoire the Plaintiff prepared on 28 October 1991 and part of which is quoted below. However, it does not seem to me that takes the matter significantly further.

54 Sergeant Morton was called. He agreed with the Plaintiff’s evidence of a preliminary phone call and that there was then a meeting between them both and that he then called in Inspector Shipp. Although he said that he could not recall any conversation dealing with the topic of confidentiality during the course of his meeting with the Plaintiff, (and later that he left the topic of confidentiality to Inspector Shipp) he had shortly before that given evidence to the effect that at an early stage of his meeting with the Plaintiff he said that he would treat the meeting as very confidential.

55 Sergeant Morton said that the Plaintiff had alleged that Constable Strong was drinking alcohol on duty and to excess off duty, smoking marijuana, had been verballing and possibly assaulting prisoners. Sergeant Morton denied that the names of any victims of Constable Strong’s alleged misbehaviour were mentioned. He thought that he would have asked for names but that the Plaintiff said that he would go back and talk to Constable Blaydon before taking the matter further. Shortly after that evidence he agreed that he had made no attempt to tease out the name of somebody who might support the information he had been given. Later Sergeant Morton said that the Plaintiff had not been prepared to identify any person who made allegations against Constable Strong.

56 Sergeant Morton said that the Plaintiff was asked by himself or Inspector Shipp to put his complaints in writing and the Plaintiff declined. Asked if there was any discussion about the reason as the Plaintiff understood it for Constable Strong being in Menindee, Sergeant Morton said he thought that the Plaintiff might have made mention about transfer for punishment or the like. Sergeant Morton said that so far as he was aware there was no such procedure by way of punishment.

57 Sergeant Morton said that he took the view that having brought Inspector Shipp into the conversation, his obligations were fulfilled. He said that he played no part in receiving further allegations from the Plaintiff concerning Constable Strong and had no part in following up those he had received and although he went to Menindee later in his capacity as licensing sergeant, he did not seek to inform himself about the Plaintiff’s allegations. Sergeant Morton said that he did not divulge to anyone the information he had received from the Plaintiff.

58 The Plaintiff said that prior to making his report to police in Broken Hill about Constable Strong, he did not say anything to Constable Blayden about going to Broken Hill. He said that after the conversation with Sergeant Morton, he did speak to Constable Blayden about Constable Strong, adding that Constable Blayden spoke to the Plaintiff quite often about Constable Strong telling him a lot of “stuff”. In the context of being asked if he knew he had to report misconduct to a superior officer, and whether Constable Blayden was his superior officer, the Plaintiff was then asked what had he heard about Constable Strong that Constable Blayden did not tell him, the Plaintiff said, “not much”, going on to say that when he repeated to Constable Blayden, information he the Plaintiff heard from others, Constable Blayden would say something confirmatory.

59 Asked if he saw Constable Blayden as being derelict in his duty in supplying the Plaintiff with information about Constable Strong’s illegal or misbehaviour, the Plaintiff said:-

“I saw him as being in an extremely difficult position. I thought he was trying to do something by telling me, by asking me to help him.”

60 Constable Blayden said that he was aware of rumours in Menindee about Constable Strong (and himself and others) but that they were untrue. He said that Constable Strong was a bit rough around the edges, untidy and a bit of a slob but a good policeman. He never saw Constable Strong affected by marijuana or, while on duty, affected by alcohol.

61 Constable Blayden denied having said anything to the Plaintiff to the effect that he suspected Constable Strong of warning criminals about police activity or of pinching tea money. Constable Blayden went on to say that he did not remember there being a tea fund, given that residences were next door and coffee could be had, or brought from, those places. He said that some months before the Plaintiff’s arrival, Mrs Papoleuca had informed him about some inappropriate sexual comment made by Constable Strong adding also that she did not want Constable Strong to get into trouble in that regard and she was telling Constable Blayden so he would know what it was about if she gave Constable Strong a clip over the ear or hit over the head. Constable Blayden could not remember if he mentioned this incident to the Plaintiff.

62 Constable Blayden said that he could not remember saying anything to the Plaintiff in his first few days about Constable Strong and later that he had made no remarks adverse to Constable Strong to the Plaintiff. He said that early in the Plaintiff’s time at Menindee the Plaintiff had said to him that he thought Constable Strong was a pig of a man or policeman and wanted to know what could be done about getting rid of him. When it was put to the Plaintiff in cross-examination that, early in his time in Menindee he had remarked, “What are we going to do about getting rid of Strongy? We would be better off if it was just the two of us out here. There is no need for him to be here.”, the Plaintiff said that sounded fair enough.

63 In evidence that does not sit happily with some referred to in the immediately preceding paragraph, Constable Blayden also said that he did not remember the Plaintiff voicing to him any concerns about Constable Strong. Constable Blayden also said that he himself did not voice any concerns about Constable Strong to the Plaintiff.

64 Although by the time of trial before me, Constable Blayden’s memory on the topic had failed him, in earlier proceedings he had said that by 30 August he knew or at least believed that the Plaintiff had complained about Constable Strong.

65 Constable Blayden said that some weeks after the Plaintiff arrived, he received a phone call from someone from the Broken Hill police asking him to ask around a bit on the topic of Constable Strong’s involvement with drugs. Constable Blayden could not remember if the instruction was wider but no other information was supplied to him. Constable Blayden uncovered no information and reported this to Inspector Shipp. This evidence conforms with part of the contents of a statement made by Constable Blayden on 1 December 1991 to the effect that Inspector Shipp had contacted him in relation to an allegation that Constable Strong had been smoking marijuana, asked Constable Blayden to make discreet enquiries and that Constable Blayden had been unable to find any indication that the allegation was true. Constable Blayden suspected that the Plaintiff may have been the inspiration for the instruction but said that he did not communicate this suspicion to anyone else.

66 On 6 September 1991 it would seem that the Plaintiff was expressing his views about both Constable Strong and Constable Blayden to someone in the Psychology section of the Police force. A typed document in Exhibit N, a selection of records from the files from the Psychology and Welfare Management sections of the Police Force, records inter alia,

“Robert has a problem with his colleagues at Menindee. Both drink heavily but one is also violent – assaults on members of the public. One bashed an offender in the cells when the other two police were away. Robert claims that the boss at Broken Hill won’t confront him (he has his own problems – shoplifting).

Strong has 2 District Court appearances about assaults on the public coming up at Broken Hill. In one matter there are 8 or 9 police who are testifying that he did commit the assault and that it was unjustified.

Strong is reported to both drink and smoke marijuana at parties (with other townspeople present). Yet he will arrest someone for possession of a small amount of marijuana.

There is one instance when he was drinking at a party and couldn’t be found for some extended period of time. He was required to go to a domestic and when his wife found him and abused him he went to the domestic (drunk and driving the police vehicle), ranted and raved at the couple and publicly threatened to shoot the male for causing Strong marriage problems. It seems that it is not unusual for him to drink and drive police vehicles.”

67 At the foot of the document and written in handwriting are the words:-

68 The Plaintiff gave evidence of a conversation with Dr Westerlink from the Police Psychology Unit in the course of which the Plaintiff said that he was seeking advice and Dr Westerlink told the Plaintiff that he should contact Chief Inspector McGoldrick of Internal Affairs Sydney or Internal Affairs North West.

69 Asked what the conversation with Dr Westerlink was about, the Plaintiff said that he did not know what to do about the Strong situation, he had been freaked out by Sergeant Morton and Inspector Shipp, Strong was still continuing to do what he was doing and nothing was changing. The Plaintiff said also that, at some stage that appears to have been after the conversation with Sergeant Morton, he had had a conversation with Mr Papaleuca who had told the Plaintiff that he did not want police involvement and he was going to take care of the situation himself. This, according to the Plaintiff, scared him out of his mind and persuaded him that he had to get something done.

70 According to the Plaintiff, Dr Westerlink said that relaying to Inspector McGoldrick the information he had would enable Inspector McGoldrick to pass the information over to Internal Affairs South West as confirmed but anonymous, an investigator who then came out to investigate would be able to ask the Plaintiff a series of questions that the Plaintiff would be required to respond to without it appearing that he was volunteering information about a fellow officer.

71 The Plaintiff seems to have accepted the suggestion of his counsel that his conversation with Dr Westerlink occurred at the end of October 1991 and the date of a memo the Plaintiff prepared at the request of Inspector Grace tends to support a date close to this. However, a comparison of the Plaintiff’s evidence of the content of the conversation with Dr Westerlink and of the printed document 6 September 1991 suggest that that was the date of the conversation. On the other hand, the Plaintiff’s evidence concerning Strong still continuing to do what he was doing also does not fit in readily with the conversation occurring as early as 6 September, once regard is had to the duty rosters for Menindee during the relevant period. These record that the 3 policeman at Menindee were on leave and rest days contiguous therewith as follows:

72 The Plaintiff said that he did contact Inspector McGoldrick and that the latter “told me that he would pass my information over to Inspector Grace of Internal Affairs South West enabling Inspector Grace to formulate questions for me to be asked by an investigator so that I wouldn’t be seen to be volunteering information” and Mr McGoldrick “assured me that my confidentiality would be maintained”.

73 Apart from the duty rosters, the next contemporaneous record of events apart from the duty rosters seems to be an entry made on 5 October 1991 in the Plaintiff’s duty book which refers to what would seem to have been an acrimonious exchange with a Broken Hill police officer. She apparently criticised the Plaintiff’s manner of speaking and said he was being insubordinate but said that, depending on the Plaintiff’s behaviour, she would not take the matter further. The Plaintiff’s notes include a commentary “UNPROFESSSIONAL, THREATS ON HALF TRUTHS …not effective and professional Policing”. It is to be inferred that the other officer involved was a Constable Rodereda.

74 On 6 October the Plaintiff arrested a Mr John Rae who had been driving a car when it rolled over. The Plaintiff said that he called for and obtained assistance from another officer who drove to Quandong, a town approximately half way to Broken Hill and where not uncommonly a vehicle from Menindee would meet one from Broken Hill so that the vehicle and police from Menindee were not out of town too long. On this journey, Mr Rae and the Plaintiff were seated in the back seat of the police vehicle. According to the Plaintiff he disliked the fact that while Mr Rae was speaking during this journey he was turning his face and constantly leaning towards the Plaintiff and emitting spittle that was striking the Plaintiff in the face. To prevent the continuation of this conduct the Plaintiff grabbed Mr Rae by the shirt, pushed and held him away from the Plaintiff. I summarise below another version of this incident.

75 The next significant event seems to be one the subject of a report of 25 October 1991 from Senior Sergeant Burrows, described as a District Staff Officer. In that report Sergeant Burrows records that, pursuant to a Directive, on 24 October he conducted “preliminary enquiries” in regard to allegations of assault of persons in custody by Constable Strong. Sergeant Burrows said that he initially interviewed Constable Strong who denied any allegation of assault or excessive or unwarranted use of a police baton and that he himself then spoke to a number of people in Menindee concerning “Police Service delivery”. These included two from an aboriginal housing co-operative, a wool, hide and skin dealer, two persons in the main street, Mr Cox the licensee of an hotel and Mr and Mrs Papalovich, the owners of the Menindee Supermarket. Mr Cox is recorded as saying that Constable Strong was considered a regular in the hotel but Mr Cox had no problems with him. The part of the report dealing with Mr Papalovich – one may infer a misnomer for Mr Papoleuca - records the following:-

“Spoke highly of the Police Service delivery to the community. He stated that Constable Strong was a regular customer to his store and on one occasion whilst intoxicated and off duty had made an offensive suggestive remark to his wife. His wife apparently dealt with the matter in her own way. He and his wife regarded the matter was finalised and wished no further action. Mr Papalovich was concerned however that Constable 1/c Bennie, Menindee sector, had approached his wife in an attempt to solicit the lodgement of complaint against Constable Strong over the incident.

He and his wife will not be involved in any dispute between these officers.”

76 The report concludes:-

“From the information gathered during this brief cross section community survey there is no evidence to warrant a full investigation being conducted in relation to the allegations against Constable Strong. Likewise there is no evidence to support the preferment of any criminal or Departmental charge against any officer attached to that station.”

77 Because of some later comments concerning the Plaintiff, I should note also that in the report it is recorded to the effect that the 2 persons from the aboriginal housing co-operative, and the wool, hide and skin dealer community spoke highly of the policing service delivery to the community, had knowledge of all police attached to the sector and had no complaints or concerns about any of them. The hotel licence was very happy and had no gripes with the Police Service. Apart from “Michael Papalovich”, the only 2 other persons spoken to, had praise and made no complaint.

78 The copy of Sergeant Burrows’ report that came into evidence bears an imprint dated 29 October 1991 of the Police Internal Affairs Branch.

79 Senior Sergeant Burrows was called. He gave evidence that at the time he was personnel officer for Chief Superintendent Allen the District Commander of the Broken Hill District at the time. He could not recall whether he knew whether the Plaintiff had been the source of the allegation that he went to Menindee to investigate nor specifics of the conversation he had had with Constable Strong.

80 Inspector Allen gave evidence that he had directed Sergeant Burrows to go to Menindee and authorised him to speak directly to Constable Strong. Challenged that this course would lead to the plain deduction that the Plaintiff had complained about Constable Strong, Inspector Allen said that while in the case of all Internal Affairs inquiries the complainant should not be known, in 90% of cases he was, and that by October it would have been common knowledge that the Plaintiff had complained about Constable Strong.

81 On 28 October the Plaintiff had a telephone call with Inspector Grace, then of Internal Affairs, South-West. The Plaintiff gave him an account of his concerns about Constable Strong and Inspector Grace asked the Plaintiff to send him a written aide-memoire to assist Inspector Grace in formulating questions to be asked. Again the Plaintiff was assured that his anonymity would be maintained. The Plaintiff prepared the aide-memoire which is dated 28 October and faxed it to Inspector Grace. In turn Inspector Grace passed a copy of the document on to the Ombudsman and the commander of the police Internal Affairs Branch, Sydney. That concluded Inspector Grace’s involvement in the matter.

82 The aide-memoire is something over 7 closely typed pages long. Included in it are statements to the following effect:-

The report is for the use of Inspector Grace only and I deny permission for any other person to read it without the express permission of Inspector Grace or the author.

Kevin Strong is extremely gruff and abrasive in his manner and a heavy drinker. He spends a deal of time in the local hotel. I believe Kevin to be the wrong type of person to be a member of the Police Service. I believe the power afforded him by the position he holds has swayed him.

Almost every person I have spoken with has at least one story to tell regarding Kevin. None of them have been complimentary.

The situation in the town has reached a point where the town folk would be ready to accept almost any accusation made against Kevin, with or without valid cause. The amount of damage being afforded to the Police Service cannot be overstated. Every person he arrests is believed to be in grave danger of being assaulted. Even if they are not assaulted, all they have to do is make a mild suggestion that he was in any way rough with them and they are immediately believed.

I am able to relate the following information on the understanding that with regard to the greater portion of the events I was not actually present. Much of it is hearsay but it has been reported so often by so many different people that the probability of it being true approaches certainty.

It is a very widely held view that Kevin attends parties and BBQ’s while on duty… The point of interest is that he is in uniform driving the police vehicle under the influence of alcohol to the point of drunkenness and smoking marijuana in view of the public.

Kevin holds a hatred of one of the town low lives, James Kennedy. Kevin told the Plaintiff that Kennedy has laid a complaint of brutality during an arrest made by Kevin. On an occasion when Kevin was the only police officer in town, his wife Debbie, not having heard from him for some hours, contacted Linda Blayden and asked if she knew his whereabouts. Linda Blayden was unsuccessful in contacting Kevin on the radio. Some further hours passed and a report of a serious domestic involving Kennedy was received. Linda Blayden again sought to contact Kevin by radio without success and then contacted Broken Hill. Broken Hill police advised her to make further enquiries at hotels. She did so and was told that Kevin was at a party with two persons named and said to be well-known marijuana users. Debbie drove to the party where a loud, swearing, threatening argument followed between her and Kevin in the course of which she informed him she was leaving him. Kevin was well affected by alcohol but left the party and attended the Kennedy residence. James Kennedy had left. Kevin began abusing James Kennedy’s wife Eileen using “extremely foul and profane language” and blaming her for the break down of his marriage. He left with the stated intention of shooting Kennedy. Eileen contacted Linda who contacted Kevin and instructed him to return to the station.

There is a particularly ugly confrontation developing between Kevin and the Papalouca family. He propositioned Penny Papalouca and when he was rejected became firstly insistent and then abusive and threatening. Mrs Papalouca feared that her husband would do something silly towards Kevin. She also informed the Plaintiff that she was in constant fear of Kevin to the point that she exercised her dog 12 kilometres away rather than in the Menindee area. Kevin had a large account at the Papalouca store which Mrs Papalouca felt unwilling to deny for fear of retribution. Kevin had abused and threatened Marianne Papalouca, aged 12. Michael Papalouca told the Plaintiff that he does not trust police to control other police and if there are further difficulties he will “get my own people on it”.

The circumstances of the arrest of Flavell and Graham were described. The Plaintiff’s wife informed the Plaintiff that at about the time he advised Constable Strong to lodge Graham in the cells she heard a commotion coming from the station and Graham yelling and screaming for a short time. After Graham’s release the Plaintiff questioned Constable Strong about Graham becoming subdued, to which questioning Constable Strong responded that it had been necessary to “give him one or two in the ribs to quiet him down”.

On 31 August 1991 Kevin arrested a Richard John Cain. The Plaintiff and Senior Constable Blayden attended the station. Cain showed signs of having been assaulted and Kevin was more dishevelled than usual. Senior Constable Blayden took Cain aside and questioned him but he denied he had been assaulted.

A “school of thought exists among police in the Broken Hill patrol” that Kevin is not to be trusted with certain information and shortly after the Plaintiff’s arrival in Menindee Constable Blayden advised the Plaintiff not to give information about possible arrests to Kevin who would pass on information to offenders.

Patrick Parkes has informed Anne-Marie Kelly that Kevin regularly smokes marijuana with him and his friends.

Kevin told the Plaintiff he is in some trouble due to one or two separate arrests involving violence towards those in custody. Kevin told the Plaintiff that he gave some juveniles “a few kicks up the arse to teach him a lesson” and this conduct incensed the Manager of the Big W store that he laid a complaint.

Beryl Philp said she was aware of drug taking and assaults by Kevin, feels betrayed by Broken Hill police in their handling of the matters, and would be willing to speak to senior police.

Constable Blayden, who is an extremely efficient police officer, should not be held accountable for the situation.

On 28 August 1991, the Plaintiff spoke to Sergeant Morton and Inspector Shipp. Neither appeared surprised but Inspector Shipp appeared completely uninterested. It is apparent that no action has emanated from Broken Hill in relation to the Plaintiff’s complaints.

83 On 30 October Constable Blayden received a letter from a Mr Astill, the head of the local volunteer fire brigade and on 14 November sent the letter off to Inspector Shipp. Mr Astill was called. He gave evidence that following a time when the fire truck sirens had been used going through town – with the prior sanction of Constable Blayden – the Plaintiff had asked him about the fact and following receipt of Mr Astill’s explanation had shook his head and made some remark to the effect “boys and their toys”. Mr Astill was offended by this and the incident and the belief that he had been spoken to without proper courtesy was the subject of Mr Astill’s letter.

84 Mr Astill also gave evidence that Constable Strong’s conduct was exemplary as far as he knew and that the town did not have a problem. He would not agree that Constable Strong was often untidy in his appearance. When asked about Constable Strong’s drinking, Mr Astill’s answers struck me as somewhat defensive of Constable Strong rather than frank.

85 Mr Astill also gave evidence of an occasion on 30 October 1991 when Constable Bennie attended a call to a hotel where 2 aboriginal men were fighting, asked what the problem was and was given the reply, “Can’t you see the problem”. According to Mr Astill, the Plaintiff appeared to be offended and turned around and walked out. Mr Astill said that subsequently if there was a problem at the hotel and it was known Constable Bennie was on duty, those at the hotel would not bother ringing.

86 Also on 30 October, Sergeant Morton and Inspector Shipp attended Maiden’s Hotel in Menindee. Constable Strong was in the hotel apparently drinking and he and Sergeant Morton and possibly Inspector Shipp engaged in conversation. Constable Strong informed Sergeant Morton that the Plaintiff had assaulted a prisoner. On their way back from Menindee, Sergeant Morton was told by Inspector Shipp to investigate the allegation and later spoke to Constables Lenardon and Barham and a Mr Tucker who, according to Sergeant Morton, approached him.

87 The latter informed Sergeant Morton that an employee of his had been assaulted by a constable in Broken Hill. Sergeant Morton suggested the employee call and talk to him. Sergeant Morton said that the employee did so, although it appears from later evidence of Sergeant Morton that this was only after he chased up the employee who was Mr Rae. Mr Rae made a written statement dated 4 November 1991 which, admitted on a limited basis and not as the truth of its contents, became Exhibit 5. The cross-examination of Sergeant Morton as to the taking of this statement suggests a very casual approach to the investigation of the matter.

88 Sergeant Morton then made enquiries of Constable Barham who had been involved in escorting Mr Rae to Broken Hill after his arrest by the Plaintiff. He said that he also made enquiry of Constable Lenardon who he said was similarly involved.

89 Senior Constable Barham was called. He gave evidence that on 1 November 1991 he had prepared a letter addressed to the Broken Hill Patrol Commander. In the letter he set out an account of events on 6 October when he said that Mr Rae had been transferred from the cage of a police vehicle driven by the Plaintiff to the one Constable Barham was driving. The Plaintiff also transferred to Constable Barham’s vehicle, both he and Mr Rae occupying the back seat and the vehicle drove in the direction of Quandong. Constable Barham recorded some acrimonious conversation, mainly emanating from the Plaintiff, the fact of further conversation he could not hear properly and then said he heard a loud slap and the Plaintiff say, “if you want another one, keep talking loser”. To this Mr Rae replied, “Look, I’m handcuffed. How can I hit you back. That was real big of you hitting a man with his hands cuffed behind him”. The report went on to say that Constable Barham knew he should have reported the matter as soon as possible but was scared of repercussions.

90 Constable Barham denied that he had been directed to make the report although he had probably discussed the matter with Sergeant Morton a week or so after the incident. Except for raising the possibility of rest days, he provided no reasonable explanation for the passage of time between 6 October and 1 November. He agreed in cross-examination that the Plaintiff at some time had been holding Mr Rae at arms length. He denied hearing that the Plaintiff had made a complaint about Constable Strong. I noticed nothing about Constable Barham’s demeanour that positively detracted from his evidence but he was not an impressive witness and he seemed appreciably less than frank when asked questions concerning Mr Rae’s state of sobriety.

91 On 1 November 1991 Constable Lenardon made a report addressed to Inspector Grace to the effect that on 23 October 1991 he had assisted Constable Bennie in escorting a prisoner King to the charge dock of the Broken Hill Police station, that he then returned to the charge counter and proceeded to enter some records. He heard a shuffling noise, looked up and saw King lying on the floor and the Plaintiff standing near the charge dock. The report concludes:-

“Although the Prisoner KING did not make any complaint to me that he had been assaulted, I am of the opinion that the Prisoner may have been assaulted by Constable BENNIE. It must also be considered that the Prisoner KING appeared to be heavily affected by intoxicating liquor or a drug or both.”

92 Having regard to the terms of s69(3) of the Evidence Act, and the recognition of counsel in the case of an earlier statement that, without the calling of the author, it could not be advanced as evidence of the truth of its contents, I take the same view in relation to this document. Be that as it may, it strikes me as surprising that, with so little to say of matters he had witnessed, Constable Lenardon should have bothered to make or file such a report.

93 Sergeant Morton forwarded all the reports and statements he had obtained to Inspector Grace and said that his involvement in the investigation of Constable Strong’s complaint then ceased. Sergeant Morton was challenged as to why he followed up Constable Strong’s complaint but not that by the Plaintiff. He said it was because he had names in the one case and not in the other. He denied a suggestion that he had “actively assisted in an attempt to put Mr Bennie in a bad light before any investigation into his allegations against Constable Strong could be carried out”.

94 Although there was nothing in the demeanour of Sergeant Morton that argued against his credibility, there were two topics in his evidence that do not reflect well on that credibility. In the course of being challenged on the fact that he followed up matters Constable Strong brought to his attention but not those the Plaintiff did, Sergeant Morton was asked “You had not made any enquiries about Mr Bennie’s complaint, had you?” Sergeant Morton replied, “At his insistence.” That and another answer soon after to similar effect is inconsistent with evidence I accept as to what occurred during the meeting on 28 August. It tends to be inconsistent with the fact that Inspector Shipp did instigate some investigations and does not correspond with other evidence Sergeant Morton gave.

95 The second topic on which Sergeant Morton’s answers do not inspire confidence that he was doing his best is when he was cross-examined on a view that Constable Strong’s complaint was “tit-for-tat”. He seemed to me to be hedging.

495 Those remarks cover most though not all of the breaches I have found but they help to demonstrate that the Plaintiff’s reaction was extreme. And although I have upheld it, so is his claim that because of the Defendant’s conduct, he can never work again. When these matters are combined with the evidence of odd incidents in the army, the vulnerability I have found, and the lack of judgment displayed in August and October, the Defendant was by no means unreasonable in defending the claim in this Court.

496 Nor do I regard the Defendant as unreasonable in the manner in which the proceedings were conducted. Certainly, some parts of that manner were calculated to, and did, distress the Plaintiff. However, the Defendant had statements or evidence that contradicted part of what the Plaintiff said. The evidence in part came from medical practitioners whom the Defendant was entitled to regard as objective. The Defendant was entitled to challenge the Plaintiff’s credibility and reliability, and the challenge was in part successful.

497 It is also pertinent to bear in mind that the proceedings before Judge Geraghty raised significantly different issues to those raised before me. The former proceedings were not dependent on the Plaintiff establishing a breach of the Defendant’s duty of care as are the current proceedings and the events giving rise to the Plaintiff’s claim there could extend to all the stressful events he had experienced in his police career. So far as the events of 12 February 1992 are concerned, here the principal question is whether the Plaintiff was assaulted. In the proceedings before Judge Geraghty it was whether the Plaintiff’s actions were unrelated to or outside the course of his employment.

498 In summary, of the matters relied on in final submissions on behalf of the Plaintiff, there are only 2 in respect of which an award of aggravated and exemplary damages could be justified – the assault by way of the use of excessive force at the time of the Plaintiff’s arrest and defending the proceedings before Judge Geraghty.

499 In his address in chief, counsel for the Plaintiff addressed some of the 36 paragraphs comprised in the particulars, saying that he preferred to address the others after the evidence relied on in support of the claim was identified. In written submissions in reply it was contended simply that the Plaintiff had “not identified a proper basis upon which it can be said that an award of aggravated or exemplary damages ought to be made”.

500 Contrary to the contention of counsel for the Defendant when considered in light of the concluding part of paragraph 55 and paragraph 57 of the Plaintiff’s counsel’s submissions, a number of these paragraphs do provide a reasonable indication of a basis for a court to consider whether an award of aggravated or exemplary damages ought to be made. That said, I am not disposed to make an award of such damages on the basis of those 36 paragraphs except insofar as they are included in the 7 quoted above. In the case of many of the other matters, this is because I have not found the circumstances to be as alleged. In the case of some of the others, it is because I am not disposed to find that the Defendant’s conduct had or was accompanied by or resulted in the aggravating or additional features that are required to justify an award of aggravating or exemplary damages. In part it is that counsel for the Plaintiff did not pursue reliance on those of the 36 matters not included in the 7 to which I have referred.

501 Furthermore, only one of the 36 paragraphs describes an incident that I have found to be victimisation, viz paragraph 11, “On 3.2.1992 Strong refused the plaintiff access to the police computer” and that matter is, in itself, so minor in the scheme to things that I am disinclined to regard it as going to justify or inspire the further damages sought.

502 Returning to the two of the seven matters relied on in final submissions on behalf of the Plaintiff in respect of which I have found that an award of aggravated and exemplary damages could be justified, I take the view that there is nothing about the impact of the assault on the Plaintiff that justifies an award of aggravated damages. On the other hand, that assault does justify an award of exemplary damages. The power of police officers is so great that is important to society that contravention of its limits be marked with disapproval and while I do not suggest that all assaults in the course of arrest require or justify an award of exemplary damages, I am satisfied that the assault in this case does so. On this account I would award a sum of $20,000.

503 The proceedings before Judge Geraghty raise different considerations because, while the injury constituted by the “adjustment disorder with depressed and anxious moods” upon which the Plaintiff relies here was, according to my findings contributed to by tortious acts for which the Defendant is responsible, the issue before his Honour was whether the totality of the Plaintiff’s police service, of which those acts were only a part, contributed to that injury. In other words, the proceedings before his Honour only partly arose from the tort relied on here, and indeed the proceedings could have been disposed of in the Plaintiff’s favour without any findings concerning the happening of the acts said to constitute the tort. In those circumstances, can the proceedings before Judge Geraghty be said to be so closely connected with the tort that, however unreasonable the Defendant’s conduct in connection with them, it is proper to regard them as justifying an award of damages for the tort.

504 A consideration of Judge Geraghty’s reasons does demonstrate that, while many issues were canvassed in both proceedings, the issues before his Honour covered a significantly wider area than those before me. Furthermore, a number of the matters that I have found to be breaches of duty on the part of the Defendant or its officers do not seem to have been considered by his Honour.

505 No authority was cited to me to indicate that events removed from a tort to the extent to which the proceedings before Judge Geraghty were could properly found an award of aggravated or exemplary damages and in the result I have reached the conclusion that I am not entitled to award aggravated or exemplary damages on the basis of those proceedings. Against the possibility that that view be wrong, I should say however that I have not the slightest doubt that each of the proceedings, the need for them occasioned by the rejection of the Plaintiff’s claim for compensation, and the conduct of the proceedings added insult to what the Plaintiff had suffered at the hands of the Defendant, partly due to the breaches of duty I have found. Had I felt entitled to award aggravated and exemplary damages, the award on each count would have been high.

506 I should perhaps add that, save and except for what I see as the Defendant’s unreasonableness in defending the proceedings before Judge Geraghty, there is no evidence of a lack of bona fides on the part of the Defendant after the events in Menindee.

Damages - Other

507 During the course of the hearing, I indicated that I thought it appropriate to make primary findings, leaving the parties to then carry out mathematical and actuarial calculations. In accordance with that approach, I indicate the following.

508 I was informed that past medical out-of-pocket expenses were agreed – see T1157.

509 The Plaintiff also made a substantial claim for future medical expenses and the like. The claim was in the amount of $345 per week and was based on Dr Taylor’s report where the costs were estimated at $200 per week for osteopathic and chiropractic, $75 to $100 per week for a psychologist and $150 per monthly visit to a psychiatrist.

510 Counsel for the Defendant said the 2007 visit to a chiropractor was at a cost of some $400. I think there was not evidence of this but it is likely that the figure came from the agreement about past out-of-pocket expenses. Be that as it may, counsel for the Defendant submitted that the appropriate way of dealing with these expenses in the future was to provide a cushion. Counsel for the Plaintiff suggested that if I did not accept Dr Taylor’s estimate I might have regard to what had been paid in the past but I am not conscious of any evidence of this.

511 Given the Plaintiff’s physical and mental condition it strikes me as inherently likely that some such expenditures will be incurred at irregular intervals and this notwithstanding the infrequency of visits of recent times. When the need arises, there is likely to be a series of visits. I would allow a sum of $2,000 per year which represents, roughly, average annual visits of 4 to a chiropractor, 6 to a psychologist and 3 to a psychiatrist.

512 In accordance with Metropolitan Meat Industry Board v Williams (1991) 24 NSWLR 54 interest on non-economic loss should be calculated at the rate of 2% from the date of injury which I would put at 11 February 1992, to the date of judgment. Interest for past economic loss should be calculated in accordance with the Practice Note rates, with due allowance for credits or halving, depending on the method chosen.

513 There should be an allowance for superannuation, the calculation of which should be based on what I have said about economic loss.

514 I have, I think, said enough to enable damages to be calculated by agreement. If I have overlooked anything the parties should regard themselves as free to bring it to my attention. At this stage, I propose to stand the matter over, at first for mention and, if it appears that any further argument or decision is required, to another date.

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Citations

Bennie v State of New South Wales [2009] NSWSC 96

Most Recent Citation

Bennie v Grace [2018] NSWDC 229

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Monie v Commonwealth of Australia [2007] NSWCA 230

CITATION:	BENNIE v STATE OF NEW SOUTH WALES [2009] NSWSC 96
HEARING DATE(S):	22.10.07-12.11.07
JUDGMENT DATE :	3 March 2009
JUDGMENT OF:	Hulme J at 1
DECISION:	Orders deferred
PARTIES:	Robert Maurice BENNIE State of New South Wales
FILE NUMBER(S):	SC 11447/06
COUNSEL:	Plaintiff: R Burbidge QC: J Garnsey QC: G Radburn Defendant: P Bodor QC: M Hutchings: V Hartstein
SOLICITORS:	Plaintiff: WJ Grace & Co Defendant: IV Knight Crown Solicitor's Office