De Reus v Gray
[2003] VSCA 84
•27 June 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 5399 of 2001
| RAY DE REUS, STATE OF VICTORIA AND JANET MARIAN PIKE |
| Appellants |
| v. |
| CORINNE GRAY |
| Respondent |
---
JUDGES: | WINNEKE, P., ORMISTON and CHARLES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 31 March and 1 April 2003 | |
DATE OF JUDGMENT: | 27 June 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 84 | |
---
Damages – For mental harm and distress as a result of “strip-search” at police station – Jury asked and awarding damages for different causes of action when those causes of action pleaded as alternatives and the injury for which damages were claimed was the same – Jury verdicts as to both general and exemplary damages conflicting and inconsistent – Whether aggravated compensatory damages can be assessed differentially against two or more joint tortfeasors who are liable in respect of the same damage – Nature of exemplary and aggravated damages discussed – Court exercising power under s.14 Supreme Court Act 1986 to re-assess damages.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Appellants | Mr. S.W. Kaye, Q.C. and Mr. P.C. Golombek | Victorian Government Solicitor |
For the Respondent | Mr. D.F. Hore-Lacy, S.C. and Mr. J.R.C. Gordon | Slater & Gordon |
WINNEKE, P.:
This is an appeal by Ray De Reus (“De Reus”), Janet Pike (“Pike”) and the State of Victoria (“the State”) against jury verdicts and judgments entered in accordance therewith in favour of Corinne Gray (“the respondent”) in the County Court at Melbourne on 31 March and 3 April 2001 respectively. De Reus, Pike and the State were three of the defendants in the court below, and Gray was the plaintiff.
In the proceedings, Gray claimed damages for mental harm and distress as a result of being “strip-searched” at the Narre Warren Police Station on 20 May 1994. At the relevant time, De Reus was the officer in charge of the station and Sandy Jo Hatch (“Hatch”), a young probationary police officer, was on duty at the Station under De Reus’ command. Hatch was named as the first defendant in the proceedings. However, in the events that happened, judgment was entered in her favour against the respondent; accordingly she is not a party to the appeal.
The evidence disclosed that, in 1994, the Narre Warren Police Station was a gazetted “police gaol” in which persons in lawful custody could be detained for limited periods. At the relevant time, the respondent was a married woman (living apart from her husband) and mother of four young boys. She was about 30 years of age. Before 1994 she had apparently incurred parking fines which, with the added costs and expenses, she was unable to pay. She was, it seems, subject to an order requiring her to pay approximately $400, in default two days imprisonment. She failed to comply and, by May 1994, warrants were issued for her imprisonment. Sheriff’s officers arrived at her premises on 18 May to execute the warrants. She was told that she would be required to go to a police “lock-up”, whence she would be released to do “community work” on a subsequent day. It was explained that she would be at the police “lock-up” for “about two hours”. When she said that she had children at school, and had no means of making alternative arrangements – and, furthermore, was unwell following a medical procedure on the preceding week-end – the Sheriff’s officers made an arrangement to call again on 20 May. On 20 May, two officers (one of whom was Pike) again came to the respondent’s premises and apprehended her pursuant to the warrant. In the Sheriff’s car was one Kelly Trinder who had been apprehended in similar circumstances. The two women were then conveyed to the Narre Warren Police Station. There they were taken to the “Charge Counter” where they were confronted by De Reus. According to the respondent, De Reus spoke to Pike, informing her that “he wanted these girls strip-searched”; and further said “Can you teach this constable (Hatch) how to do a strip search?” The respondent said that she was “shocked” at the prospect of being strip-searched, but said nothing because she believed that if she resisted, she would be forced to comply. No one had asked any questions as to her background or the reasons for her detention. Thereafter, according to the respondent, she was taken to the end of a corridor, adjacent to a cell, by Pike and Hatch. She said that she was apprehensive because the cell door had what she thought was a “mirror window” through which she could be seen. Without being given a reason, she was ordered by Pike to remove all her clothes, which she did whilst Hatch observed. The clothes were then taken and searched. She was fully stripped and no alternative apparel, such as a dressing gown, was provided. Not surprisingly, she said she felt embarrassed and humiliated, not least because she had a vaginal discharge; a consequence of the medical procedure which she had undergone on the previous week-end. She was detained at the police station for “about 3-4 hours” before being released. On the following morning she did the two hours “community work” required.
It perhaps should be noted that although, at trial, there was no dispute that a strip-search had been made of the respondent, the evidence from the defendants was that the search had been conducted by Hatch with Pike, the Sheriff’s officer, observing. On this appeal, it was accepted by Mr. Kaye, who appeared with Mr. Golombek for the appellants, that it must be assumed that the jury had preferred the respondent’s evidence in respect of this factual dispute.
The respondent made her claim against Hatch, as first defendant, De Reus as second defendant, the State of Victoria as third defendant and Pike as fourth defendant. In her Further Amended Statement of Claim (filed, it would seem, during the hearing), she claimed that the State of Victoria was vicariously liable for the tortious acts of the first, second and fourth defendants or, alternatively, was liable to pay any damages found to be payable by the first and second defendants pursuant to s.123 of the Police Regulation Act 1958. The scope of this latter section, which was introduced into the law of this State in April 2000 (but operated retrospectively), was considered by this Court in State of Victoria v. Horvath & Ors.[1]. For present purposes, it is sufficient to say that the aim of the section is to render a member of the police force immune from personal liability for “anything necessarily or reasonably done … in good faith in the course of his or her duty” and to attach to the State of Victoria the liability resulting from the member’s conduct which would otherwise have attached to the member. In their amended defence the defendants (including the State) admitted that, at all relevant times, Hatch, De Reus and Pike were servants and agents of the State of Victoria and were acting within the course and scope of their employment. Admissions were also made by the State of the relevant facts necessary to transfer to the State any liability incurred by the two police officers (De Reus and Hatch) in accordance with s.123 of the Police Regulation Act. Accordingly, the trial was conducted on the basis of an agreement between the parties that any damages and costs awarded and payable to the respondent would be paid by the State.
[1][2002] VSCA 177.
It was the claim made by the respondent at trial that the harm which accrued to her as a result of being strip-searched on 20 May 1994 was the result of tortious conduct jointly engaged in by two or more of the personal defendants. Thus it was alleged that Hatch, De Reus and Pike had, by authorizing or conducting the strip-search, jointly committed an unlawful assault upon the respondent; that “further and alternatively” Hatch and De Reus were negligent in permitting and/or authorizing Pike to strip-search the respondent; and that “further or alternatively” Hatch and De Reus were guilty of misfeasance in a public office in inflicting the harm upon the respondent by strip-searching her (my emphasis). A further alternative claim of “false imprisonment” was not pursued at trial. The harm which the respondent claimed had flowed to her from being strip-searched, and for which she sought damages, was harm of a psychological kind, namely distress, anxiety, depression and post-traumatic stress disorder. Her claim in this regard was supported by a psychiatrist, one Dr. Hacker, who gave evidence at the trial.
The trial extended for a period of nearly two weeks. The respondent’s claim was challenged both on matters going to liability and matters going to damages. In particular the respondent was challenged as to her version of events. It was suggested that her evidence that it was Pike who had conducted the strip-search was a recent invention; and that she was wrong in saying the she was stripped to the point where she was naked. Furthermore, it was suggested to her that her longstanding fragility of temperament and personality was not related to the events at the Police Station, but rather due to the physical abuse which she had received from her husband before they separated in 1993. The suggestion that the respondent’s version of events was a recent version was put to rest when the psychiatrist gave evidence that, in early 1995, she had received a similar version when taking a history from the respondent. Furthermore, the respondent’s version of events was supported by Kelly Trinder, the other woman arrested and taken to the Station on the same day by the Sheriff’s officers. Trinder’s evidence appears to have been given without opportunity for collaboration, because she was only located during the course of the trial.
De Reus, Hatch and Pike each gave evidence. Their evidence was that it was Hatch who conducted the strip-search of the respondent, upon the orders of De Reus, and that Pike was the observer. Pike admitted that she had no lawful authority to conduct a strip-search of any person in a gazetted police gaol. Hatch said that she conducted the search on the command of De Reus, but agreed that it was “completely contrary to Police Standing Orders” to routinely conduct strip-searches of all persons lodged in the cells. De Reus also agreed that it was “blatantly contrary to the Standing Orders” to conduct strip-searches as a matter of routine, but maintained that he did so to preserve safety and security of prisoners and others in the gaol.
At some stage during the course of the final address of Mr. Hore-Lacy, senior counsel for the respondent (who also appeared for her with Mr. Ingram in this Court), the judge indicated that he was proposing to leave to the jury a series of questions, the answers to which he hoped would provide a basis upon which he could enter appropriate judgments. It seems to have been accepted by both counsel that, depending upon the view of the evidence taken by the jury, they might find a basis for an award of aggravated and/or exemplary damages, and both counsel addressed the jury accordingly. When the matter of “questions” was first raised, those which his Honour had before him were in a “draft” form. Thereafter, and before his Honour commenced his charge, there was considerable discussion, as a consequence of which the number, nature and order of the questions were altered. The transcript reveals that, in the course of the discussions, counsel for the plaintiff/respondent was calling for a question which required the jury to fix what counsel described as “an overall amount” of damages which should be awarded, in the event that they found for the plaintiff. On the other hand, counsel for the defendants contended that the draft form of questions was potentially confusing because it suggested that different amounts of damages could be awarded for different causes of action when those causes of action were alternatives, and the injury for which damages were claimed was the same. The discussion concluded with the learned judge telling the parties that he would, in the light of the discussion, prepare a “new draft” by the following morning. That occurred. Counsel for the plaintiff/respondent gave his assent to the new draft as “masterpieces in precision and accuracy and simplicity”. Counsel for the defendants/appellants was not quite as effusive in his praise. Inter alia, he again objected to the form of questions because they called for awards of damages in respect of causes of action which were alternatives, and contended that, in circumstances where the plaintiff was suing the defendants as joint tortfeasors in respect of the same damage, it was unnecessary, and potentially confusing, to ask the jury to answer questions calling for an assessment of damages in respect of the alternative claim against the police officers in negligence, in the event that they found for the plaintiff on the claim for assault against those defendants. His Honour agreed that “the compensable injury … would not differ between causes of action” but that he had:
“… formulated the questions in such a way … that I will get answers to each cause of action both in compensatory and exemplary damages.”
Counsel for the defendants continued to submit that, having regard to the way in which the claim had been pleaded and presented, a finding of assault would subsume the claim in negligence because:
“If there was an assault then … negligence is irrelevant because the intentional tort takes over from the inadvertent tort. You can’t do something intentionally and inadvertently at the same time. Because the same acts are relied upon.”
The discussion ended with his Honour saying:
“The reason I wanted the jury to answer all the questions is that … they will be findings of fact. If, well, … my preference is to get an answer to all questions so I can then, in the light of answers given, counsel can make submissions when they move for judgment.”
It thus occurred that a series of questions was left to the jury. The questions, and the jury’s answers to them, were as follows:
“Assault
1.Did … Hatch assault the plaintiff? Yes.
If yes, what damages do you award the plaintiff for:
(a)compensatory (including aggravated) damages? $30,000
(b)exemplary damages? $20,000
2.Did … De Reus assault the plaintiff? Yes.
If yes, what damages do you award the plaintiff for:
(a)compensatory (including aggravated) damages? $62,000
(b)exemplary damages? $80,000
3.Did … Pike assault the plaintiff? Yes.
If yes, what damages do you award the plaintiff for:
(a)compensatory (including aggravated) damages? $40,000
(b)exemplary damages? $30,000
4.At the time the plaintiff was assaulted by … Hatch
and/or … De Reus was:
(a)… Hatch? Yes
(b)… De Reus? No
acting in a manner that was reasonable or necessary
and in good faith in the course of her/his duties as a
member of the police force?
Negligence
5.Did the plaintiff suffer injury by reason of the
negligence of … Hatch? Yes.
If yes, what damages do you award the plaintiff for:
(a)compensatory (including aggravated) damages? $12,000
(b)exemplary damages? $30,000
6.Did the plaintiff suffer injury by reason of the
negligence of … De Reus? Yes.
If yes, what damages do you award the plaintiff for:
(a)compensatory (including aggravated) damages? $50,000
(b) exemplary damages? $115,000
7.At the time the plaintiff suffered injury by reason of
the negligence of … Hatch and/or … De Reus, was:
(a)… Hatch? Yes
(b)… De Reus? No
acting in manner that was reasonable or necessary and
in good faith in the course of her/his duties as a
member of the police force?
Misfeasance in Public Office
8.In directing:
(a)… Hatch; and/or
(b)… Pike;
to conduct a strip-search upon the plaintiff, did
… De Reus know that he was unauthorised to do so
or did he recklessly disregard the means of
ascertaining whether he was unauthorised to do so? Yes.
If yes to (a) or (b), in so acting was there a
foreseeable risk of harm to the plaintiff? Yes.
9.In strip-searching the plaintiff, did … Hatch know
that she was unauthorised to do so or did she
recklessly disregard the means of ascertaining
whether she was unauthorised to do so? No.
If so in so acting was there a foreseeable risk of
harm to the plaintiff? [no answer]10.What is the total sum you find the plaintiff is
entitled to by way of:
(a)compensatory damages? $62,000
(b)exemplary damages? $275,000
$337,000
As the defendants’ counsel had predicted, the questions – as formulated – and the jury’s responses to them produced confusion rather than enlightenment. The figures provided in the answer to question 10 were the “overall award” which plaintiff’s counsel had called for. The $62,000 awarded as the total entitlement for compensatory damages was taken as being the “highest sum” awarded by the jury for aggravated compensatory damages against the three personal defendants in respect of the claims for assault and negligence, although it is not clear how much of that sum comprehends the aggravated component of the damages. None the less, the jury’s response to question 10(a) was the consequence of the judge’s directions to them. Having told the jury that the injury suffered by the plaintiff derived from the same root cause – namely the strip-search – he said that they would therefore “conclude that the compensatory damages for the assault and the negligence and the misfeasance all have the same cause”. His Honour continued:
“In other words, if you found … that the compensatory damages for assault were x …, the compensatory damages for negligence were x, for misfeasance in public office were x, you wouldn’t add up the 3 x’s when you came to question 10(a) because you would be compensating the plaintiff three times for the one injury. So that … it would be inconsistent with those principles if you gave the plaintiff three times the damages for injuries that she suffered by simply adding up the three causes of action. … So the answer to question 10(a) would be, if you do find different amounts for … assault and negligence, the answer to question 10(a) would be the highest of those separate amounts.”
It is not clear to me, consistently with the principles to which his Honour referred, why the jury should have been asked – in the event that they found that the assault had been proved against each of the police defendants – to assess damages for negligence when the claims were pleaded and made in the alternative and the injury sued upon was the same. During the course of the appeal we were told that the jury were not asked to assess damages in respect of the claim based on misfeasance because it was subsumed by the claims based on assault and negligence.
It appears that greater confusion arose in respect of the jury’s award of $275,000 for exemplary damages expressed in their answer to question 10(b). It is accepted – for the purposes of this appeal – that the $275,000 is the aggregate of the awards of exemplary damages assessed against Hatch and De Reus in respect of assault and negligence (question 1(b), 2(b), 5(b) and 6(b)) and the award of exemplary damages assessed against Pike for the assault (question 3(b)). The assessment of $275,000 for total exemplary damages provoked the following exchange between judge and counsel after the jury had been discharged, but before formal judgment was entered:
“Defendants’ counsel: The question of exemplary damages of course is a difficult one because they have given a total amount of exemplary damages at 275, whereas in fact the same act – the negligent act and the assault are exactly the same act. As I indicated to your Honour … the negligence question should never have been put to them because … if an assault occurred, then negligence becomes irrelevant because of the intentional [tort].
…
… it would be inconsistent. If you do something intentionally, you cannot do it inadvertently.
H.H.:Yes, yes, yes.
Counsel:That is my point. So really – but I don’t know what your Honour can do about it, because there is a general verdict for 275.
H.H.:Well, there is an answer to a question for that figure.
Counsel:Yes, but the answer to question 10 was basically intended to be the general verdict.
H.H.:Yes.
Counsel:So what they have done is, instead of just taking one set of exemplary damages for the same act, they have doubled it up and it is quite odd – I mean, take … De Reus, you have got 80 for exemplary damages, and … 115 in negligence. It does not make sense but we are stuck with that.
H.H.:Well, as I see it the maximum exemplary damages against De Reus would be $115,000.
Counsel:Well, yes your Honour but … what does your Honour then do when the jury says : what is the total sum you find the plaintiff is entitled to; and that is 275 – that is what the papers all say she is entitled to. (Counsel was referring to morning Press reports.)
H.H.:Well, forget the papers.
Counsel:Yes … but that is what the jury has said.
H.H.:But, no, the jury has not said : she is entitled to 275 against De Reus have they?
Counsel:No … that is so. It is said as to total …
H.H.:Well, the total exemplary damages against De Reus is $115,000 isn’t it?
Counsel:Well, that is the highest figure they have mentioned in negligence.
H.H.:Yes, well if [plaintiff’s counsel] seeks exemplary damages against De Reus for $115,000 and does not seek exemplary damages for assault, that would be appropriate?
Counsel:Well, it wouldn’t be because … once they found the assault they really – wasn’t open to them to find negligence.
H.H.:I see, so your point is that the exemplary damages against De Reus would have to be $80,000?”
The debate continued. Counsel for the plaintiff contended that the negligence found against De Reus could attract a greater award of punitive damages than the assault because his negligence in ordering a strip-search could cover a wider range of acts and omissions than the assault. He said:
“There is no problem about … and that is the reason I asked your Honour to put question 10, because in accordance with your Honour’s instructions, which … are correct, they were required to give compensatory and exemplary damages for each of the three torts. But in the end result you would not know because they were similar.”
In the long run, and after an adjournment, counsel for the defendants accepted that his Honour should enter judgment for the $337,000 (being the total of the two amounts in the answers to parts (a) and (b) of question 10). He said:
“I can’t see how that prejudices us in any way.”
The problems which flowed from the jury’s answers to the questions posed for their consideration appear to have “spilled over” into his Honour’s judgment and orders entered and made on 3 April 2001. By his third order, his Honour directed judgment against the State of Victoria in favour of the plaintiff for $337,000 with $3,370 by way of damages in the nature of interest. This order was made in conformity with the agreement between the parties to which I have previously referred. It did not derive from any verdict which had been entered by the jury against the State. It comprehended the damages assessed against all the individual defendants. Nevertheless, by orders 2 and 4, his Honour entered judgment in the sum of $257,000 against De Reus, and $70,000 against Pike. On the hearing of this appeal, it was accepted by the parties that the judgments against these personal defendants should not have been made consistently with the judgment against the State for an amount which comprehended the damages awarded against the individual defendants. It was, however, conceded that his Honour’s judgment, made in his first order, in favour of Hatch against the plaintiff, was properly made. That judgment derived from the jury’s answers to questions 4(a), 7(a) and 9, by which the jury found that Hatch, in assaulting the plaintiff and in negligently causing her injury, was acting necessarily or reasonably and in good faith in the course of her duty; and acquitted her of misfeasance in a public office. The findings by the jury that Hatch was, at relevant times, acting necessarily or reasonably and in good faith in the course of her duty as a member of the police force operated, by dint of the provisions of s.123 of the Police Regulation Act, to confer immunity upon Hatch against liability to the plaintiff, and to transfer to the State such liability as she might otherwise have incurred but for the legislative provision. No one, at the trial, appears to have considered the potential inconsistency between these findings in favour of Hatch and the jury’s assessment of exemplary damages against her in respect of the claims based on trespass and negligence. In the event, the respondent has not, in this appeal, challenged the jury’s findings or the judgment in favour of Hatch with the result, as I have previously noted, that she is not a party to the appeal.
The Appeal
The appellants have not sought to challenge the jury’s findings on issues of liability. They challenge only the jury’s assessment of damages, both as to compensatory and exemplary damages, and the judgment entered in accordance with those assessments. Although a number of grounds were stipulated in the Notice of Appeal, Mr. Kaye distilled from them – for the purposes of argument – three grounds, namely:
(a)the verdicts as to both general and exemplary damages, in respect of the causes of action for assault and negligence, are conflicting and inconsistent.
(b)the learned judge erred in asking the jury to answer questions 5, 6 and 7 (relating to negligence).
(c)the amounts of damages awarded in respect of each of the causes of action are against the evidence and excessive.
Because I am of the view that grounds (a) and (b) have been made out, and that the total amounts of damages assessed must, necessarily, be beyond what could reasonably have been awarded, I am of the opinion that the appeal should be allowed and the assessments and judgment set aside. In the event that the Court came to that view, counsel for each of the parties invited the Court to exercise the power given to it by s.14 Supreme Court Act 1986, and to assess the appropriate damages for itself and give judgment accordingly. I will need to return to that matter hereafter.
Inconsistencies in jury “verdicts”
Mr. Kaye submitted that the procedure adopted at trial had led to internal inconsistencies in both the awards of exemplary and general, or compensatory, damages. Those inconsistencies, he submitted, were largely the consequence of asking the jury to assess damages, both compensatory and exemplary, against the police defendants in respect of two alternative causes of action, albeit that the same damage was alleged to flow from the same conduct. Thus, he contended that the awards of exemplary damages against De Reus and Hatch in respect of both trespass and negligence amounted to a “double punishment” of each, and ultimately served to produce a total sum of exemplary damages which was perverse. Furthermore, he submitted that the awards of exemplary damages assessed against Hatch were clearly inconsistent with the findings made by the jury to the effect that, in conducting the strip-search, she was acting in a manner which was necessary or reasonable, and in good faith, in the course of her duties, and was not guilty of misfeasance in her public office. Such findings, it was submitted, were altogether inconsistent with the awards of exemplary damages against her, which are necessarily predicated upon a conclusion that, in conducting the strip-search, she deserved to be punished for a “conscious wrongdoing in contumelious disregard” of the respondent’s rights[2].
[2]Whitfeld v. De Lauret & Co. Ltd. (1920) 29 C.L.R. 71 at 77 per Knox, C.J.; Gray v. Motor Accident Commission (1998) 196 C.L.R. 1 at 7 per Gleeson, C.J., McHugh, Gummow and Hayne, JJ.
Award of Exemplary Damages against Hatch – inconsistent with jury’s findings
In my opinion, there is substance in these submissions. Indeed, Mr. Hore-Lacy did not take issue with the contention that there was no basis upon which an award of exemplary damages could be made against Hatch consistently with the jury’s findings that, at all relevant times, she was acting reasonably or necessarily in the course of her duty as a police officer, and was acting in good faith. In the case of State of Victoria v. Horvath & Ors.[3] this Court said – again in the context of claims against police officers:
“It is of course in the nature of a police officer’s duty that he or she is constantly in contact with members of the community. As we have previously noted, the officer will frequently be placed in a situation where he or she has to make ‘on the spot decisions’ which will have ramifications for citizens who are affected by that decision. The decision might be such that more time and calmer reflection will, with hindsight, suggest that it was wrong or even unreasonable, and give rise to a claim in negligence. However, if the conduct of the police officer is done ‘reasonably in the course of the officer’s duty’ and is done in ‘good faith’, it seems to us that such conduct must be the antithesis of conduct which should be punished by an award of exemplary damages; namely conscious wrongdoing in contumelious disregard of the rights of those affected by it.” (footnotes omitted)
[3]supra at [60].
Counsel for the respondent was constrained to argue that, because the jury were not instructed in accordance with Horvath (indeed the judgment in Horvath had not been published when this trial was conducted), this Court should not assume that their finding in respect of the “s.123 Police Regulation Act issue” is correct; that is that if they had been instructed in accordance with the principles which this Court enunciated in Horvath, they may not “have afforded the protection of s.123 to [Hatch]”. No such issue was raised by way of notice of contention or cross appeal and, in any event, it was not a matter seriously pressed before us. The jury were simply asked a question which directed their mind to an issue of fact which was raised in the trial. It is true that they were not told that, if they answered questions 4(a), 7(a) and 9 in favour of Hatch, they could not consistently make an award of exemplary damages against her. However, that is not a basis for impugning their answers to the questions to which I have referred. Rather it points up the general inconsistency in the “verdicts” of which the appellants complain.
Impropriety of Assessing Exemplary Damages in Respect of Alternative Causes of Action
In any event, it seems to me that there are more deep-seated problems affecting the assessments of exemplary damages, which stem from the fact that awards have been made against Hatch and De Reus in respect of the alternative causes of action in assault and negligence. It is accepted that those awards have been incorporated into the total assessment of $275,000 referred to in question 10. This was a case where the three personal defendants (De Reus, Hatch and Pike) were sued as being jointly responsible for an intentional assault on the plaintiff causing the injury of which she complained. Indeed, it was alleged that they assaulted the plaintiff in concert. As against each of the personal defendants, the same conduct was alleged; namely that they permitted and/or conducted the strip-search when they knew that they had no authority to do so or were reckless as to whether they had such authority or not. In the alternative it was alleged that the same damage accrued to the plaintiff as a consequence of the negligence of De Reus and Hatch; the particulars of such negligence being that they permitted and/or conducted the strip-search without taking reasonable care to determine whether they had the authority to do so. In those circumstances, it must follow that, once the jury had found that the damage to the plaintiff had accrued as a consequence of a joint assault upon her, and had assessed damages accordingly, no basis existed for a further assessment based upon a finding that the police defendants had caused the same damage negligently. The former finding subsumed the latter. As Lord Denning, M.R. said in Letang v. Cooper[4], when considering the derivation, and modern-day purpose, of “causes of action”:
“The truth is that the distinction between trespass and case is obsolete. We have a different subdivision altogether. Instead of dividing actions for personal injuries into trespass (direct damage) or case (consequential damage) we divide the causes of action now according as the defendant did the injury intentionally or unintentionally. If one man intentionally applies force directly to another, the plaintiff has a cause of action in assault and battery, or, if you so please to describe it, in trespass to the person … . If he does not inflict the injury intentionally, but only unintentionally, the plaintiff has no cause of action today in trespass. His only cause of action is in negligence, and then only on want of reasonable care.”
[4][1965] 1 Q.B. 232 at 239.
There may be cases where joint tortious conduct will produce different injuries and damage to the same plaintiff, and where the injuries have been caused by discrete conduct which can be described in terms of different causes of action. In such cases, it might be necessary and desirable for the judge to ask the jury to assess the damages separately, particularly if there is a risk that one claim might fail, and the other succeed. Sadler & State of Victoria v. Madigan[5] was such a case. The result in this case, however, was not reached because – as I have said – the injury for which the plaintiff claimed damages arose from the one course of conduct, namely the unauthorized strip-search. It was the part played by the individual defendants in that conduct which fell to be considered by the jury when determining whether they, or any of them, should be penalized by an award of exemplary damages. To invite the jury to assess punitive damages by reference to the various causes of action used by the law to describe the conduct was, I think, calculated to distract the jury from its proper task and to produce a total award of punitive damages which was excessive in amount and confusing in its components. In the first place it is curious that the punitive damages awarded against Hatch and De Reus for “negligently” causing the respondent’s injury and damage were greater, indeed substantially greater, than the awards made against them for causing the same injury and loss by intentional assault. On the hearing of the appeal, counsel for the respondent submitted that the explanation can be found in the fact that the alleged negligent acts and omissions covered a wider range of conduct than the acts alleged to constitute the assault. “The case”, it was put, “was pleaded in such a way as to differentiate the assault and the breach of duty and the particulars of each allegation were discrete …”. For the reasons which I have already given, I do not accept that argument. The respondent’s claim was that her injury and loss was caused by the strip-search and the joint participation in it by each of the individual defendants. Indeed, his Honour directed the jury that “the circumstance which is central to these three causes of action is the strip-search”. But even if it had been appropriate for the jury to assess punitive damages against Hatch and De Reus in respect of both assault and negligence, the fact that they awarded significantly higher sums for the negligent conduct than for the intentional conduct betrays, in my view, a lack of proper appreciation of their task. In Gray v. Motor Accidents Commission[6], the High Court considered the propriety of an award of exemplary damages made against a motorist who had injured the plaintiff by deliberately driving a motor vehicle at him. Although the proceeding was framed in negligence, the action was conducted at trial as if it were a claim in trespass. Indeed, the defendant had been convicted of intentionally causing grievous bodily harm to the plaintiff and sentenced to seven years’ imprisonment. Gleeson, C.J., McHugh, Gummow and Hayne, JJ.[7] noted that:
[5][1998] VSCA 53.
[6](1998) 196 C.L.R. 1.
[7]At 9.
“… the remedy [that is, of punitive damages] is exceptional in the sense that it arises (chiefly, if not exclusively) in cases of conscious wrongdoing in contumelious disregard of the plaintiff’s rights …”
With regard to the further question whether exemplary damages are available where the plaintiff’s claim is for damages for negligence rather than some intentional wrong, their Honours said (at 9):
“… exemplary damages could not properly be awarded in a case of alleged negligence in which there was no conscious wrongdoing by the defendant. Ordinarily, then, questions of exemplary damages will not arise in most negligence cases be they motor accident or other kinds of case.”
Their Honours recognized that there may be cases, framed in negligence, in which the defendant can be shown to have acted consciously in contumelious disregard of the rights of the plaintiff or persons in the position of the plaintiff. They instanced a case of an employer’s failure to provide a safe system of work for employees in which it can be demonstrated that the employer, well knowing of “an extreme danger” thus created, persisted in employing an unsafe system. In this State, Midalco Pty. Ltd. v. Rabenalt[8], is an instance of such a case. However, if the jury had found, in this case, that there was no assault but that the defendants were negligent in carrying out the strip search, it is difficult to see how they could properly have awarded punitive damages against the defendants.
[8][1989] V.R. 461.
As a consequence of the procedure followed at trial, it seems to me that the jury were invited to, and did, punish Hatch and De Reus twice for the same conduct. To do so was contrary to principle. The power to award punitive damages in civil actions derives from the historical intersection between the criminal law and the law of torts[9]. In Gray v. Motor Accident Commission[10] the majority of the High Court took the view that, where the wrongdoer had been the subject of “substantial punishment” at the hands of the criminal law, “exemplary damages may not be awarded”. Their Honours explained that they had used the words “may not” because:
“… we consider that the infliction of substantial punishment for what is substantially the same conduct as the conduct which is the subject of the civil proceeding is a bar to the award; the decision is not one that is reached as a matter of discretion dependent upon the facts and circumstances in each particular case.”
The views expressed by their Honours were based, at least in part, upon principles of double jeopardy as applied in the criminal justice system[11]. Although, in Gray’s case, the application of the principle was applied in circumstances where the wrongdoer had been already punished at the hands of the criminal justice system, it must also, I would have thought, have its application in this case where the jury has doubly punished Hatch and De Reus by twice awarding exemplary damages against them for what was essentially the same conduct.
[9]Uren v. John Fairfax & Sons Pty. Ltd. (1966) 117 C.L.R. 118 at 149-50, per Windeyer, J.
[10]supra at 14.
[11]Cf. R. v. Hoar (1981) 148 C.L.R. 32 at 38 per Gibbs, C.J., Mason, Aicken and Brennan, JJ.
In making submissions to this Court, counsel for the respondent sought to avoid the issue of “double punishment” by suggesting that the jury’s assessments of exemplary damages for the separate torts of assault and negligence were intended to be separate and distinct for utilitarian purposes. Thus, it was submitted, “it was prudent to ask the jury for answers on all torts to guard against the possibility of an appellate court coming to a view that there was no evidence upon which a jury could find assault made out against one or other of the defendants”. In this way, so it was submitted, the respondent would be relieved of the need to endure a further trial. The submission appears to be a tacit concession that the verdicts sought in respect of assault and negligence were or should be regarded as alternatives. However the submission does not accord with the facts to which I have already referred. At the trial, counsel for the respondent rejected the submission by the appellants’ trial counsel that the claims of assault and negligence should be left in the alternative. Indeed, it was the basis of his submission that all the awards of exemplary damages should be aggregated to produce what he called the “overall award” which was the subject of question 10. That, indeed, appears to have been the way in which the jury were instructed. Having told the jury that they were not entitled to “add up” the awards of compensatory damages made in respect of the respective torts pleaded because that “would be compensating the plaintiff three times for the one injury”, his Honour continued:
“Now, insofar as exemplary damages are concerned, the position is different because the conduct that you are being asked to punish and reflect the community’s attitude, is obviously different in the three particular torts. For example, you might think that exemplary damages for something that is done negligently would be less than that which is done intentionally, because if you do something with a specific intention … that caused the greater condemnation than if you were just negligent.”
No directions were given to caution the jury against “double counting”. Although, as I have said, these directions appear to countenance the aggregation of all sums assessed for punitive damages, it may be that his Honour had it in mind that, at the end of the day, only one of the sums assessed against Hatch and De Reus should be the basis of a judgment for punitive damages. That might explain his expressed uncertainty about the matter following verdict, to which I have referred in paragraph [12]. However, that was obviously not the way in which his instructions were interpreted by the jury and, in any event, his Honour’s judgment and orders reflect acceptance of the jury’s verdict as recorded in the answer to question 10(b).
For the reasons stated, I am of the view that the awards of exemplary damages are vitiated by error, and that the errors have produced an excessive and unreasonable “overall” award.
Inconsistency in Awards of General Damages
Mr. Kaye also submitted that the jury’s assessments of general damages (that is, aggravated compensatory damages) were inconsistent and conflicting, both as to the amounts assessed against the defendants liable for the assault and those found to be liable for negligence; and that the awards against Hatch and De Reus for assault are internally inconsistent with the awards against them for negligence. It will be recalled that the jury assessed general damages for the assault as to $30,000 (Hatch), $62,000 (De Reus) and $40,000 (Pike); and for negligence assessed $12,000 (Hatch) and $50,000 (De Reus). His Honour’s instruction to the jury was, as I have said, that those awards should not be aggregated but that the highest of them (as it transpired, the $62,000 against De Reus for assault) should stand as their verdict, as reflected in their total award for general damages in answer to question 10 (a). The appellants submitted - and I agree – that, once the jury had found that Hatch and De Reus had assaulted the respondent, there was no basis for considering the claim against them in negligence. Mr. Kaye further submitted that the differences between the five amounts so assessed reveal basic error of approach. It was his contention that the claim in assault was made against the three personal defendants as joint tortfeasors, that they were jointly liable for the one tort and that only one amount of general damages could be awarded.
Counsel for the respondent, in answer to the appellants’ contention, submitted that in this case, where the jury was being asked to award aggravated compensatory damages, it was appropriate to ask the jury to assess the damages against each joint tortfeasor so as to identify each tortfeasor’s contribution to the aggravated damages payable to the respondent. It was contended that such an approach was supported by authority[12]. It was accepted that the procedure which was adopted in this case to achieve this end, makes it impossible to identify the jury’s assessment of either the aggravated or the compensatory component (non-aggravated) of the damages awarded; however it was submitted that it must be assumed that, in each case, there is a common factor representing the non-aggravated component of compensatory damages and that the balance represents the jury’s assessment of aggravated damages. If this was the intention, the means chosen was most unsatisfactory.
[12]XL Petroleum (NSW) Pty. Ltd. v. Caltex Oil (Australia) Pty. Ltd. (1985) 155 C.L.R. 448 and Myer Stores Ltd. v. Soo [1991] 2 V.R. 597 at 605-10 per Murphy, J.
The primary point in issue is whether a court can, and in what circumstances, assess aggravated compensatory damages differentially against two or more joint tortfeasors who are liable in respect of the same damage. The substantive common law rule was that where two or more tortfeasors were sued for damages for a joint tort, there was only one wrong and one cause of action and that, therefore, there could only be one judgment for one sum of damages. The parallel common law rule was that a judgment obtained against one joint tortfeasor was a bar to an action against the others for the same cause of action even though the judgment remained unsatisfied[13]. However, as the High Court made clear in the XL Petroleum case[14], this latter rule (that is, the “merger doctrine”) was effectively abolished in New South Wales by s.5(1) of the Law Reform (Miscellaneous Provisions) Act 1946 (N.S.W.), the provisions of which section have, to all intents and purposes, been re-produced – at all material times – in this State in Part IV of the Wrongs Act 1958. The critical question for the High Court was whether the statutory provisions also affected the rule that only one sum of damages may be awarded in an action brought against two or more joint tortfeasors. It was necessary for the Court to determine this question in the context of a case where a jury had awarded exemplary damages against one joint tortfeasor but not against the other. Drawing upon the decision of the Judicial Committee in Wah Tat Bank Ltd. v. Chan[15], the High Court concluded that the former rule had been abolished “in its entirety” by the statutory provisions and that it was now open to a court to award exemplary damages against individual joint tortfeasors who merited punishment, notwithstanding that this would mean entering different judgments for different sums against such tortfeasors. Gibbs, C.J., with whose reasons on this point Mason, Murphy and Wilson, JJ. agreed, said[16]:
“Once it is accepted that more than one judgment may be given against joint tortfeasors for damages caused by a joint tort, whether damages are given in the same or in different proceedings, there can remain no foundation for the rule that only one sum can be awarded by the different judgments. The reason for the rule was that there was only one cause of action against the joint tortfeasors, but that is no longer the position – the statute has abolished “in its entirety” the old common law principle that a person who suffers damage by a joint tort has only one cause of action which merges in the first judgment recovered in respect of it. Surely, the statutory provision was not intended to abolish only the doctrine of merger, for it was not primarily directed to the question of merger, and there is no reason for selecting one aspect of the principle rather than another as that which it was intended to affect; the whole principle should be held to have gone. It seems to me impossible now to hold that there is any principle that would prevent a plaintiff from recovering different sums from different tortfeasors if he brings separate actions against them, provided that some are liable for exemplary damages, and others are not, and the same must be true if the joint tortfeasors are all sued in the one action. This result does away with the injustice to which the old law led … . The abolition of the old rule does not mean that the fears of Lord Reid will be realized, and that the less guilty tortfeasor will be required to pay exemplary damages which he ought not to pay. With the very greatest of respect to that most distinguished of judges, it does not seem to me in the least impracticable to give separate judgments against two defendants, where one is liable for exemplary damages and the other is not …” (my emphasis)
[13]Brinsmead v. Harrison (1871) 7 C.P. 547.
[14]Supra, at 456 per Gibbs, C.J.
[15][1975] A.C. 507.
[16]At pp.459-60.
It is of course obvious that the High Court was concerned with the capacity of a court, by virtue of the statutory amendments, to give differential judgments against joint tortfeasors where one or more of those tortfeasors had been found to have engaged in conduct meriting an award of exemplary damages. Those damages, as I have said, are designed to punish the defendant and to mark the court’s disapproval of his conduct. They are not designed to compensate the plaintiff, and in that sense are a “windfall” to the plaintiff. The reference which Gibbs, C.J. made to the views of Lord Reid was a reference to remarks made by his Lordship in Broome v. Cassell & Co.[17] – a libel case in which the jury had found that differential amounts of exemplary damages should be paid by two tortfeasors responsible for the publication. The House of Lords, without specific reference to the procedural reforms made in England by counterpart provisions to those made applicable in this State by Part IV of the Wrongs Act, concluded that separate judgments should not be given against each tortfeasor, but that judgment should be entered for an amount commensurate to that payable by the least guilty tortfeasor. Lord Reid had thought it was impracticable to separate awards of exemplary damages from awards of compensatory damages. His Lordship acknowledged that, if different awards could be made:
“The only logical way to deal with the matter would be first to have a judgment against all the defendants for the compensatory damages and then to have a separate judgment against each of the defendants for such additional sum as he should pay as punitive damages[18].”
It was this view, expressed by Lord Reid as to the impracticality of separate awards of exemplary damages, with which the judges of the High Court could not agree[19].
[17][1972] .C. 1027 at 1090.
[18]Broome v. Cassell & Co., supra at 1090.
[19]XL Petroleum (NSW) Pty. Ltd. v. Caltex (Australia) Pty. Ltd., supra, per Gibbs, C.J. at 460, per Mason, J, at 464, per Brennan, J. at 468-9.
However, the reforms which have been effected by Part IV of the Wrongs Act 1958 cannot conceal the fundamental truth that the damage which is inflicted upon the person wronged, and for which he or she is entitled to be compensated, is damage for which each of the tortfeasors is jointly responsible. That is why the remedial legislation[20] provides that, if the person harmed brings more than one action against the tortfeasors liable in respect of the same damage, judgment against one shall not be a bar to actions against others who are jointly liable for that damage, but that the costs of such further actions shall be payable by the person harmed, in the absence of reasonable grounds. The legislation further provides for contribution and/or indemnity among the tortfeasors liable in respect of the same damage. In the Wah Tat Bank Ltd. case, Lord Salmon – delivering the advice of the Judicial Committee – put the matter thus[21]:
“Each joint tortfeasor, irrespective of the degree of his blame vis-à-vis other joint tortfeasors, is liable to the plaintiff for the whole of the damage which the tort has caused him. The plaintiff is therefore entitled to judgment against each of the tortfeasors for the whole of the damage which he has suffered but he cannot recover in the aggregate more than the sum at which that damage is assessed. [His Lordship was speaking in the context of the provisions of the Singaporean legislation corresponding to the provisions of our Wrongs Act Part IV.] The present is such a case. It is only in a very special case, for example where punitive damages may be awarded, that it could ever have been arguable that different sums of damage could have been awarded against different joint tortfeasors in respect of the same tort.”
[20]Ss.24AA, 24AB Wrongs Act (Vic.)
[21][1975] A.C. at 519.
It is apparent from the statements made by the High Court in the XL Petroleum case (supra) that the old common law rule that there could only be one cause of action and one sum of damages against joint tortfeasors has been relaxed, at least to the point of permitting different judgments in circumstances which merit awards of exemplary damages against one or more of the joint tortfeasors. This does not necessarily mean that separate judgments for different amounts of compensatory damages can be given against joint tortfeasors. As J.G. Fleming puts it[22]:
“As a corollary of the ‘merger’ doctrine, only one judgment for one sum of damages could be rendered against joint tortfeasors. But now that they can be sued separately, it is possible to award exemplary damages against one but not the others. However, if multiple tortfeasors are sued jointly, their liability for compensatory damages will ordinarily be the same.”
This is a manifestly logical proposition because those who, acting in pursuit of a common design (as is alleged in this case), commit a joint wrong creating the same injury and damage to a plaintiff would, as a matter of course, be expected to be jointly and severally liable for the same amount of compensation payable to the plaintiff.
[22]In “The Law of Torts” (9th Ed.) at 292.
In contrast to exemplary damages, aggravated damages are compensatory in nature, and are “awarded for injury to the plaintiff’s feelings caused by insult, humiliation and the like[23]”. Because they are compensatory in nature attention is therefore focused on the harm to the plaintiff caused by the manner in which the harm has been inflicted. However, because such damages, albeit awarded to compensate the plaintiff, are to be measured by the manner in which the wrong was done – and indeed by the defendant’s attitude down to the time of trial – the distinction between aggravated and exemplary damages has often been characterized by looseness of expression to the point where it is, perhaps, more easily conceptualized than described. Indeed, it is because aggravated damages are awarded for the increased hurt to the plaintiff caused by the manner in which the defendant has committed the wrong that Windeyer, J. was constrained to acknowledge in Uren v. John Fairfax & Sons Pty. Ltd.[24] that there is an element of the punitive in aggravated damages. This is particularly so in defamation cases where the extent of the defendant’s malice is relevant to an award of aggravated compensatory damages. As McHugh, J. pointed out in Carson v. John Fairfax & Sons. Ltd.[25]:
“To say that no element of punishment enters into the assessment of aggravated compensatory damages and that the effect of such an award is merely to compensate the plaintiff for the increased harm which that person suffers is to resort to fiction in many cases.”
[23]Lamb v. Cotogno (1987) 167 C.L.R. 1 at 8 per Mason, C.J., Brennan, Deane, Dawson and Gaudron, JJ.
[24](1966) 117 C.L.R. at 151-2.
[25](1993) 178 C.L.R. 44 at 106.
Awards of aggravated compensatory damages have been made, of course, in cases other than defamation cases. They have, for example, been awarded in trespass or assault cases[26]; false imprisonment cases[27]; negligence cases[28]; and others. In Myers Stores Ltd. v. Soo (supra), the Court allowed such damages not only for the humiliation caused to the plaintiff by the manner in which the defendants committed the wrong, but also by the persistence in their allegations up to and during the trial, including their failure to apologize.
[26]Lamb v. Cotogno, supra; Gray v. Motor Accidents Commission, supra.
[27]Myers Stores Ltd. v. Soo [1991] 2 V.R. 597.
[28]Backwell v. A.A.A. [1997] 1 V.R. 182.
The nature of such awards of aggravated compensatory damages, and the basis upon which they are made, might suggest that in cases where the plaintiff alleges damage caused by a wrong committed by joint tortfeasors, there is room for separate awards of such damages against the individual tortfeasors in accordance with the principles established in the XL Petroleum case (supra). In this Court counsel for the respondent submitted that the High Court’s reasoning in that case was not intended to be confined to awards of exemplary damages, but was capable of being extended to separate awards of aggravated compensatory damages where the evidence justified different awards against individual tortfeasors. I would, myself, have thought that there is a significant distinction, in principle, between making differential awards of exemplary damages as between joint tortfeasors and differential awards as between them of damages which are intended to compensate the plaintiff for the harm done. However, the fact that it can or might be done, at least in certain circumstances, is supported by authority. In Myers Stores Ltd. v. Soo[29] Murphy, J. concluded that Gibbs, C.J. in the XL Petroleum case was “not intending to confine his remarks to an exemplary damages situation” but that they could properly apply to “a claim against one or more of several joint tortfeasors (sued together), entitling the plaintiff to aggravated damages only against one or more but not all of them”. Nevertheless, as his Honour went on to point out[30]:
“However, it seems to me that at trial no distinction was sought to be shown between the appellants in the present case, on the issue of damages. No argument was addressed to the learned trial judge, nor to this Court, on the matter, and as I have said, the aggravating features are not all that different. We were told that the appellants withdrew the notices of contribution which they had served upon one another. In all these circumstances it would not seem appropriate or necessary for this court to enter upon the task of examining the evidence in order to decide whether discrimination was warranted in awarding damages against the separate joint tortfeasors.
O’Bryan and McDonald, JJ. agreed that aggravated compensatory damages should have been awarded in favour of the plaintiff, but said nothing about the issue of differential awards against the individual tortfeasors.
[29]Supra, at 608-10.
[30]At p.610.
Bateman v. Shepherd & Ors.[31] and Manning & Ors. v. Hill[32] are two more cases in which the court regarded it as permissible, and appropriate to the circumstances of the case, to assess and award differential amounts of aggravated compensatory damages against joint tortfeasors. Each involved defamatory publications for which the respective tortfeasors were jointly responsible. In Bateman’s case the judge was faced with a situation in which one defendant had apologized to the plaintiff, but the others had not. The judge took the view that – in accordance with the decision of the High Court in the XL Petroleum case (supra) – it was permissible, and appropriate to the circumstances confronting him, to award “general compensatory damages” in the same amount against all joint tortfeasors, and a separate sum for “aggravated compensatory damages” against two of them. In the second case of Manning & Ors. v. Hill, the Supreme Court of Canada upheld a jury’s award of $1.6 million (Can), including $500,000 for aggravated damages and $800,000 for punitive damages. With respect to the issue of separate awards against joint tortfeasors, Cory, J. (with the agreement of the other members of the Court) said[33]:
“It is a well established principle that all persons who are involved in the commission of a joint tort are jointly and severally liable for the damages caused by that tort. … It would thus be inappropriate and wrong in law to have a jury attempt to apportion liability either for general or special damages between the joint tortfeasors … . However this comment does not apply to aggravated damages which are assessed on the basis of the particular malice of each joint tortfeasor.”
[31]Unreported, S.C. of A.C.T., 4 February 1997.
[32](1995) 126 D.L.R. (4th) 129.
[33]At. p.179.
Accepting, as I am content to do for the purposes of the argument, that it is permissible for a judge to have a jury assess and to enter judgment for different awards of aggravated compensatory damages against individual joint tortfeasors, it is my view that it should only be done in those cases where the circumstances clearly warrant it. The circumstances of this case did not warrant such separate awards. Each of the individual defendants – as the plaintiff alleged and as the jury found – acted together to have the respondent strip-searched. As I read the transcript of evidence, there was nothing put to the jury (or, indeed to be found in the evidence) which would have entitled the jury to make a finding that the aggravation of the harm done, and the humiliation caused to the respondent was – from her point of view – to be attributed differentially as between the tortfeasors. Each was content that the strip-search should be conducted and to participate in carrying it out or having it carried out. Nor was there anything to differentiate in the conduct of the defendants down to and during the trial. They were represented by the same counsel; they maintained that the strip-search was authorized; they jointly persisted in the contention that the respondent was wrongly suggesting that it was Pike, and not Hatch, who conducted the search; and none of them apologized notwithstanding that both Hatch and De Reus were compelled, in the end, to concede that they had no authority to carry out strip-searches as a matter of routine. These were all circumstances which told in favour of a single award of aggravated compensatory damages, rather than separate awards against individual tortfeasors. Indeed, as was the case in Myers Stores Ltd. v. Soo, trial counsel for the respondent did not claim that different awards of aggravated damages against the defendants should be made. In the course of opening the respondent’s case to the jury, he told them that, no matter whether one or all of the causes of action were made out, the respondent was:
“… to be compensated for the harm, for the actions, that happened regardless of what you call it. So we are not talking about a double dipping situation … . But as far as your approach is concerned … there will be damages just for the one lot of actions. Now I mentioned a principle before when I said that they were acting jointly or acting together. It is sometimes said with a common purpose, it is sometimes said aiding and abetting, it is sometimes said acting in concert, but it … just means that really it is alleged that all three – the sergeant that directed the strip-search and … Hatch was the police officer and … Pike the Sheriff’s officer were all jointly responsible, basically speaking.”
When later, counsel turned to the damages which he was seeking on behalf of the respondent, he referred to “aggravated damages for the insult”, and “the indignity of being forced to do what she was forced to do”; but it was not suggested that these “indignities” were other than the consequence of the “concerted actions” of the defendants. Similarly, in his closing address, counsel again stressed that the three individual defendants were acting jointly; and consequently sought to make no differentiation between the defendants when submitting that his client was entitled to “aggravated damages for the insult, the loss of dignity, the abuse of power, and in this case, we would say probably the most important single aspect is the failure to apologize and the failure by any of these people, or any other police officer for that matter, to acknowledge the wrongfulness of what they have done, and to persist right up until now … in trying to justify what we say is unjustifiable”.
Against this background of the way in which the respondent made her case at trial, I am quite satisfied that Mr. Kaye is correct in his submission that it was not a case which called for separate assessments of aggravated compensatory damages against different defendants. The appropriate course to have adopted in this case was to have asked the jury, in the event that they found that the defendants had assaulted the plaintiff, to determine at what total amount they assessed the plaintiff’s general or compensatory damages, including any aggravated damages. In asking the questions which were in fact asked, the judge ran the risk of getting the conflicting answers which he did; that is both the inconsistent assessments of compensatory damages between the three defendants who were found to have assaulted the plaintiff; and the inconsistent assessments of compensatory damages made against Hatch and De Reus in assault and negligence. The differential assessments themselves demonstrate that the jury failed to adequately appreciate the task which they were being asked to perform.
For the reasons stated I am satisfied that the assessments of the jury, both in respect of aggravated compensatory damages and exemplary damages, and the judgments entered in accordance with them, are vitiated by error and must be set aside.
Re-assessment
I noted in paragraph [14] of these reasons that counsel for both parties have requested us, in the event that the verdicts and judgments are set aside, to re-assess the damages for ourselves. In normal circumstances, an appellate court would be reluctant to accede to such a request where it is accepted that the verdict of the jury has, to a significant degree, been affected by their view of the witnesses (and their credibility), and where they have reflected that view in awards of exemplary damages. Nevertheless, there are good reasons, in my opinion, why the Court should accede to the request in this case. In the first place, both parties wish us to do so, and for good reason. The events out of which the respondent’s claim arises occurred nearly 10 years ago; to send the matter back for a re-trial, albeit in respect of damages, would constitute a difficult task for witnesses and the court. Furthermore, and notwithstanding the length of the trial, the essential dispute between the parties was narrow; and clearly decided by the jury in favour of the respondent. Neither counsel has suggested to us that the jury were not entitled to take a “dim view” of the appellants’ conduct in conducting the strip-search in the manner in which they did. Each counsel has been able to make sensible submissions to us, based on the evidence, as to the manner in which we should assess the damages to which the respondent is entitled. In these circumstances, I think that this Court should exercise the undoubted power which it has pursuant to s.14(1) of the Supreme Court Act 1986 to re-assess the damages. That power is invested in this Court to meet circumstances such as those which exist here where the parties, in the interests of ending litigation and saving further costs and expense, join together in requesting the Court to assess[34].
[34]cf. Backwell v. A.A.A. [1997] 1 V.R. 182 at 212, per Ormiston, J.A.; Del Campo v. Uniting Church [1996] 2 V.R. 525 at 533; David Syme & Co. Ltd. v. Mather [1977] V.R. 516 at 532.
Senior counsel for the respondent submitted that, whether or not the assessments made by the jury are inconsistent, it is apparent that the jury must have regarded the subjection of the respondent to a strip-search, in the circumstances, as a high handed act in excess of authority, and in wilful and shameless disregard of her rights. Accordingly, he submitted, there is no reason why this Court should not accept, at the very least, the highest of the amounts assessed against the individual appellants, both in respect of compensatory and exemplary damages for the assault. Applying the instruction which the judge gave to the jury , counsel submitted that this Court should “leave intact” the $62,000 awarded against De Reus for compensatory (including aggravated) damages; and the awards of $80,000 and $30,000 against De Reus and Pike respectively for punitive damages. Mr. Hore Lacy submitted that these figures were “the least” that should be awarded because, so he contended, the jury “obviously intended” to award punitive damages of $115,000 against De Reus; as indicated by their assessment in respect of the claim in negligence.
Senior counsel for the appellants submitted that the approach contended for by the respondent was inappropriate in the event that the Court concluded that the various assessments made by the jury were inconsistent with each other. He submitted that, if the Court was of that view, it should approach the assessment of damages afresh, but having regard to the fact that the jury took a view of the appellants’ conduct consistent with the fact that it merited punishment. Nevertheless, he submitted, there was no evidence to suggest that the respondent has suffered any recognized psychiatric disorder; nor was there evidence that her ordeal had caused her to suffer any item of special damages. In those circumstances, he submitted, the award of $62,000 for compensatory damages could scarcely be justified as non-aggravated compensatory damages; and must have included a significant amount for the “aggravated” component. Consequently, he submitted, the Court should be cautious not to “over punish” the defendants/appellants by awarding punitive damages regardless of the degree of “punishment” reflected in the general damages[35]. In the long run, he submitted, it would be appropriate for the Court to award for the assault, compensatory damages (including aggravated damages) in a sum of $40,000; and exemplary damages to a total of $40,000 (being divided as to S25,000 (De Reus) and $15,000 (Pike)).
[35]Cf. Backwell v. A.A.A., supra, at 184 per Tadgell, J.A.; per Ormiston, J.A. at 205 ff.
In assessing the damages for myself, I have drawn upon the submissions of both counsel. Because, in my view, the jury’s assessments display irreconcilable inconsistencies, it would be unwise to rely too heavily upon the individual sums which they awarded. In particular, it should not be assumed that it is appropriate to award a sum of $115,000 as punitive damages against De Reus merely because, as respondent’s counsel submitted, that was the sum fixed by the jury on the cause of action in negligence; and thus it should be assumed that that amount of exemplary damages was “obviously intended” by the jury as their award of exemplary damages against De Reus. Aside from the fact that, for the reasons already stated, there was no firm basis in this case for making an award of exemplary damages in the event that the action in trespass failed, it seems to me that there was an insufficiency in the judge’s directions to the jury on punitive damages which undermines the assessments which they made. It is true that his Honour told them that they should only award exemplary damages:
“… if your award of compensatory damages is inadequate and that the defendants … therefore merit an award of exemplary damages for the purposes of punishment for their conduct which you would need to find is outrageous, high handed, contumelious in order to mark the community’s disapproval, through your award, of such conduct and to deter the repetition of it.”
These directions were adequate so far as they went; but it is necessary in cases where juries are being invited to award exemplary damages – particularly where they are also invited to “aggravate” the compensatory damages – that they should be warned to exercise restraint or moderation in awarding such damages[36]. Further they should be told that it is only if the sum which they have it in mind to award as compensation (including such sum which they believe should be awarded as aggravated damages) is inadequate to punish the defendant for his conduct, that they can award some extra amount as exemplary damages[37]. No such directions were given here. It was particularly appropriate, I think, that they should have been because of the emphasis given to the conduct of the defendants as warranting an award of aggravated damages. It can, in my view, be inferred that the $62,000 awarded for compensatory damages includes a not-insignificant component of “aggravated” damages.
[36]cf. XL Petroleum (NSW) Pty. Ltd. v. Caltex Oil (Australia) Pty. Ltd., supra at 463 per Gibbs, C.J., with whom Mason and Wilson, JJ. agreed; Backwell v. A.A.A., supra, per Tadgell, J.A. at 184, per Ormiston, J.A. (with whom Brooking, J.A. agreed) at 205-209.
[37]cf. Rookes v. Barnard [1964] A.C. 1129 at 1228 per Lord Devlin; Backwell v. A.A.A., supra, per Tadgell, J.A. at 184, per Ormiston, J.A. at 206 ff.
On the other hand, I can safely approach the re-assessment of damages on the basis that the jury took the view that the subjection of the respondent to a strip-search in the corridor of the police station was an unnecessary and unauthorized use of power which was calculated to humiliate the respondent and cause her distress and embarrassment. I have no doubt that those in charge of police stations who were also cast in the role of “gaolers” had a difficult task to perform. These matters were in front of the jury who, by their verdicts, must have rejected the appellants’ claim that their actions were necessary to preserve security within the gaol. In those circumstances, I have little difficulty in concluding that an award of $60,000 is
justified for aggravated compensatory damages against the personal defendants who jointly assaulted the respondent. It is not in issue that it is within the province of the Court, in the circumstances of this case, to award exemplary damages against De Reus and Pike. I bear in mind, however, that in doing so restraint must be exercised against over-punishment, having regard to the fact that the compensatory damages have already been “swollen” to take account of the aggravating effect of the defendants’ conduct. In my view, it would be appropriate to award, as and by way of punitive damages sums of $50,000 (De Reus) and $25,000 (Pike). The total of the damages which I have assessed, namely $135,000, will be incorporated in a judgment against the State of Victoria, in keeping with the agreement of the parties.
ORMISTON, J.A.:
In my opinion, for the reasons stated by the President this appeal should be allowed, the verdicts and judgments against the appellants should be set aside and judgment should be entered in favour of the respondent for the sums proposed in those reasons. Having regard to the course of the trial, I consider that the sums originally awarded by the jury were, for the most part and to the extent that one can identify the elements of those awards, excessive, so that properly estimated and formulated awards must be substituted in their place.
CHARLES, J.A.:
I have had the advantage of reading the reasons for judgment prepared by the President. The reasons given, with which I entirely agree, clearly demonstrate that the jury’s assessments both of compensatory, including aggravated, damages and exemplary damages are vitiated by error and must be set aside.
I also agree with the President that this Court should take the unusual course
of reassessing damages; that an award of $60,000 in favour of the respondent should be made for compensatory, including aggravated, damages; and that exemplary damages should be awarded in the amounts of $50,000 and $25,000 having regard to the conduct of De Reus and Pike respectively.
28