TORTS - INTERFERENCE WITH THE PERSON - TRESPASS TO THE PERSON
TORTS - ABUSE OF LEGAL PROCESS - MALICIOUS PROSECUTION - GENERALLY
TORTS - MISCELLANEOUS TORTS - MISFEASANCE IN PUBLIC OFFICE
TORTS - INTERFERENCE WITH THE PERSON - FALSE IMPRISONMENT - LAWFUL JUSTIFICATION - ARREST AND DETENTION AND IMPRISONMENT IN CRIMINAL PROCEEDINGS
TORTS - INTERFERENCE WITH PROPERTY - TRESPASS TO LAND - GENERALLY
TORTS - INTERFERENCE WITH PROPERTY - TRESPASS TO LAND - REMEDIES - DAMAGES
On 3 April 2015 (Good Friday), the applicant was the subject of a roadside arrest by Brevet Sergeant Alan Graham, a member of South Australia Police (‘SAPOL’), after refusing to provide a breath sample. This incident, and the events which followed, now give rise to a wide-reaching claim in tort which can be broadly categorised into three distinct “episodes”:
1.The roadside arrest itself, for which the applicant brings claims of false imprisonment, assault, battery, and alleges an unlawful arrest (‘the roadside arrest’);
2.The applicant’s subsequent arrest under warrant in August 2015, which the applicant alleges occasions an unlawful arrest, malicious prosecution, false imprisonment and a misfeasance in public office (‘the arrest under warrant’); and
3.The four attempts by SAPOL to serve the applicant with a court summons at his home address following the roadside arrest, each of which the applicant alleges to constitute an individual trespass (‘the four trespasses’).
The claim, now in its fifth revision, is brought against the respondent as vicariously liable for the conduct of officers of SAPOL. The respondent denies any liability arising from the three episodes.
As to the roadside arrest, the applicant alleged that not only was this arrest conducted unlawfully, but the apparent force used by Brevet Sergeant Graham was unprovoked, unexpected, and exacerbated existing injuries to the applicant’s spine. In contrast, Brevet Sergeant Graham alleges that the applicant was the aggressor during this interaction, which necessitated his arrest and subsequent conveyance to hospital upon suffering a panic attack. Both participants were cross-examined at length regarding their respective versions of events.
The applicant introduced a significant volume of expert medical evidence which, in his submission, tended to suggest that the degeneration to his spinal vertebrae was more than likely caused by a traumatic event as opposed to natural degeneration overtime. In turn, expert medical evidence was led to counter this assertion by the respondent and, on 4 April 2023, both parties were granted leave to re-open their cases after the applicant underwent further spinal surgery in October 2022.
As to the arrest under warrant, the applicant alleges that the prosecutorial process leading to this action was so occasioned by animosity toward the applicant on the part of SAPOL prosecutors as to render the respondent liable for malicious prosecution or misfeasance in public office. Further, the applicant alleges that the warrant authorising his arrest was invalidly issued by the sitting Magistrate, rendering the respondent liable in false…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Cosenza v State of South Australia
Sign in free to access the full text
Details
AGLC
Cosenza v State of South Australia [2024] SASC 97
Case
[2024] SASC 97
Decision Date
CaseChat Overview and Summary
Cosenza v State of South Australia concerned multiple tort claims against the State of South Australia. The applicant alleged trespass to the person, malicious prosecution, misfeasance in public office, false imprisonment, trespass to land, and damages for trespass to land. The matter was heard in the Supreme Court of South Australia. The legal issues before the court were whether the respondent's conduct constituted various torts and, if so, whether the applicant was entitled to any damages or other remedies.
The court considered whether the respondent's conduct amounted to trespass to the person, malicious prosecution, misfeasance in public office, false imprisonment, and trespass to land. The court found that the respondent's conduct did not amount to malicious prosecution or misfeasance in public office. However, the court did find that the respondent's conduct amounted to four instances of trespass to the person and one instance of trespass to land. The court also found that the applicant was not entitled to exemplary damages. The court concluded that the applicant was entitled to $40,000 in damages for the trespasses.
The court held that the respondent's conduct did not amount to malicious prosecution or misfeasance in public office because there was no evidence of malice or improper exercise of public duty. However, the court found that the respondent's conduct amounted to trespass to the person and trespass to land because the respondent failed to leave the applicant's property despite being asked to do so. The court also found that the applicant's limited efforts to convey that he revoked his implied licence contributed to the trespasses. The court declined to award exemplary damages because the respondent's conduct did not amount to a serious breach of the applicant's rights. The court awarded the applicant $40,000 in damages for the trespasses. The court reserved costs pending further submissions from the parties.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
In my view the respondent’s conduct does not fall into this category. At worst it demonstrates inadequate systems and a need for further training. I also find that the applicant’s limited efforts to convey to those in attendance at his property that he revoked his implied licence contributed to the four trespasses. I decline to award exemplary damages. Conclusion It follows that I award the applicant $40,000. I will hear the parties on the costs consequences following these reasons.