Marshall v Watson

[1972] HCA 27

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Menzies and Stephen JJ.

MARSHALL v. WATSON

(1972) 124 CLR 640

24 April 1972

Mental Health (Vict.)—False Imprisonment—Statutes

Mental Health (Vict.)—Psychiatric hospital—Admission—Requirements—Conveyance to hospital—Statutory justification—Implied statutory authority—Mental Health Act 1959 (Vict.), ss. 42 (1), 103. False imprisonment—Trspass to person—Imprisonment—Taking into custody—Justification—Implied statutory authority. Statutes—Interpretation—Gap in legislative scheme—Mental Health Act—No express authority to take to a psychiatric hospital a person whose admission has been duly recommended—Whether power of arrest and detention to be implied—Mental Health Act 1959 (Vict.), s. 42 (1).

Decisions

April 24.
The following written judgments were delivered: -
BARWICK C.J. Marshall v. Watson: The appellant, Peter Marshall, is a member of the Victoria Police Force. At the time of the events with which this action is concerned, he held the rank of senior detective and had been seconded to the special branch of that police force. On 21st July 1967 he received telephone calls which referred to the respondent, Shane Andrew Clark Watson, who is a duly qualified medical practitioner. The appellant thereupon visited the respondent at the Institute of Rheumatology in East Melbourne. After having a conversation with the respondent, the appellant communicated with Dr. Birrell, who is, and for some thirteen and a half years has been, police surgeon for the Victoria Police. The appellant also made some inquiries from people in Sydney. On Sunday, 23rd July, the appellant had a very lengthy conversation with the lady who is now the wife of the respondent. Then on Tuesday, 25th July, the appellant called on the respondent, at the said Institute, in company with Dr. Birrell, after having received a further telephone call from Army Intelligence. Both the appellant and Dr. Birrell listened to what the respondent had to say and asked him questions. Dr. Birrell concluded from what he had seen and heard, that the respondent appeared to be mentally ill and should be admitted for observation into a psychiatric hospital. Being of this opinion, he signed a recommendation, on a form for which the Mental Health Regulations made under the Mental Health Act 1959 (Vict.) provided, which was headed "Medical Recommendation To Accompany Order Or Request For Reception Of A Person As A Patient Into A Psychiatric Hospital". The recommendation conformed to the definition of a recommendation under the Mental Health Act for the particular purpose of s. 42 of that Act. See the definition of "recommendation", s. 3 and ss. 42 (1) and 42 (3). The text of the recommendation was that Dr. Birrell, having personally examined the respondent, recommended that as "he appears to be mentally ill, . . . he should be admitted for observation into a psychiatric hospital". The recommendation contained, as required by the relevant regulation, an account of the facts observed by Dr. Birrell himself and of other facts communicated to him, upon all of which he had formed his opinion as to the mental condition of the respondent. Dr. Birrell produced and gave to the appellant the recommendation and a form of request addressed to the superintendent of the Psychiatric Hospital, Royal Park, that the respondent be received as a patient for observation and treatment into that hospital. The appellant signed the request. Dr. Birrell instructed the appellant to take the respondent to that hospital for admission. The respondent was taken there in a police car with the appellant and other police officers and in due course was admitted to the hospital, examined by the superintendent, treated and detained for some six days. (at p642)

2. The respondent, claiming to be a resident of New South Wales, sued the appellant, a resident of Victoria, in this Court, claiming damages for trespass to his person, such trespass being his imprisonment and detention in the police car during its transit of some three miles from his rooms to the hospital at Royal Park. (at p642)

3. The action was tried in Melbourne and judgment given for the respondent for the sum of $200. The Justice who tried the case found that, although contested, the jurisdiction of the Court had been established. He found that, although no physical force was used at any time by the appellant, in the circumstances which his Honour accepted as having existed at the time, the respondent "had a justified apprehension that, if he did not submit to do what was asked of him", namely to enter the police car, "he would be compelled by force to go to the hospital". Therefore, his Honour concluded that there was such restraint imposed on the respondent as amounted to an imprisonment of him by the appellant. This finding the appellant does not challenge and I say no more about it.. (at p643)

4. The appellant relied only on the provisions of the Mental Health Act to justify this "imprisonment". The appellant did not then, nor does he now, seek to justify his conveyance of the respondent to the hospital on any rule of the common law. Accordingly, I have no need to discuss any relevant principles of the common law or the relevant facts and circumstances of the case. I mention only in passing that an imprisonment for the benefit of the person imprisoned is none the less an unlawful imprisonment if not otherwise justified. See Sinclair v. Broughton (1882) 47 LT 170 . (at p643)

5. His Honour found that the appellant acted bona fide; that he believed that he was acting under the authority of the Mental Health Act; that he believed that he was entitled to do what he did and that it was right to do it. However, his Honour held that, upon its true construction, the Mental Health Act did not give the appellant any authority to take the respondent to the hospital and that he was not protected by s. 103 of that Act from the action brought by the respondent. Accordingly, his Honour felt bound to conclude that the appellant had failed to show a legal justification for the restraint which he placed upon the respondent for the purpose of taking him to the hospital. (at p643)

6. The appellant has challenged both these legal conclusions. The Solicitor-General, who has appeared here for the appellant, has submitted that, although there is no express authority given by the Act to any person to take to a psychiatric hospital a person whose admission to such a hospital has been duly requested and recommended, such an authority ought necessarily to be implied from the terms of the Act and in particular from those of Div. 2 of Pt III. (at p643)

7. It is quite plain that if that division is to work, there needs to be an authority in some person to take to the hospital the person who appears to a duly qualified medical practitioner to be mentally ill, there to be admitted for observation and treatment as that medical practitioner recommends should be done if that person is unwilling himself to seek such admission. Bearing in mind the scheme of Pt III, with its three divisions, providing at one end for admission on the person's own request and at the other for admission after judicial process, the person for whom Div. 2 provides, is most likely to be a person who is either unaware of his need for observation and treatment, or, being aware, is unwilling to seek it. There is thus, to my mind, considerable force in the submission that an authority to take such a person, whose admission has been recommended, to the hospital for his reception is necessary to the working of the Act and ought to be implied. (at p644)

8. But apart altogether from the reluctance which a court ought properly to have to imply a power of arrest and detention, I cannot find room in this legislation to imply an authority in any particular person or class of persons to exercise a power of arrest or detention. I have come to the conclusion that such a power in any member of the public could scarce be implied: nor could such an authority in any particular person or classes of persons be implied. The recommendation for which the Act provides is a recommendation to the superintendent of a psychiatric hospital. It is not contemplated by the legislation that it will be given to any other person. Thus, the form and nature of the recommendation does not suggest the implication of an authority to the person to whom it may be handed for delivery to the hospital superintendent: and the signature of a request for the person's admission can scarcely be thought to attract an authority in the person signing it to arrest and imprison the subject of the request. An authority limited to members of the police force would be more than difficult to imply. (at p644)

9. It seems to me, therefore, that the case is one in which a necessary element in the statutory scheme has been omitted by the legislation, and that the gap ought not, and cannot, be filled by construction of the legislation so as to imply the requisite power. In coming to this conclusion I do not feel it necessary to rely upon the decision of this Court in McLaughlin v. Fosbery (1904) 1 CLR 546 where the legislation was, to my mind, significantly different in relevant respects. I agree with my brother Walsh that the legislature should give the matter its early attention. Section 31 of the Mental Health Act, 1959 (U.K.) affords a very good guide to what may be done to round out in express terms the evident scheme of the Act. (at p644)

10. It was then submitted that in the event that there was no power or authority in the appellant to take the respondent to the hospital, s. 103 of the Mental Health Act (Vict.) afforded the appellant protection from the litigious results of the restraint to which my brother Walsh held the respondent to have been subjected. Section 103 is in the following terms:

"No civil or criminal proceedings shall lie against any person for anything done in reliance on any recommendation order or other document apparently given or made in accordance with the requirements of this Act." (at p644)

11. His Honour thought that the purpose of that section was to protect persons who had acted upon a defective recommendation or document and that it was limited in its operation to such cases. However, in my opinion, with respect, the section is not so limited. It extends to a case where reliance has been placed on a genuine document in due form, which in law did not afford a justification for the action taken, but which in the circumstances could reasonably and honestly have been acted upon by a person in the position of the appellant. As his Honour correctly found, there was in this case no recommendation, order or document that the respondent should be taken to the hospital. The recommendation signed by Dr. Birrell which conformed to the requirements of s. 42 of the Act, though handed to the appellant, was, as I have already indicated, a document intended for the superintendent of the hospital. Consequently, it seems to me not to have been a document of the kind that the appellant or some member of the public, into whose hands it properly came, could rely in imposing restraint upon the person to whom the recommendation referred. To hold that the appellant could rely upon Dr. Birrell's recommendation as warranting the restraint of the respondent would go a long way, in my opinion, towards justifying the implication, from the terms of s. 42 and of the existence of the recommendation, of a power of arrest and detention in any person into whose hands the recommendation might come, a conclusion which, as I have said, I could not accept. In my opinion, a recommendation given under s. 42, whether genuine and in due form or defective in some respect, is not a document upon which an appellant could successfully claim to have relied so as to attract the protection of s. 103. Whether or not the appellant did in fact rely upon the recommendation as warranting him to do what he did may be open to question but that is not a matter which I need to resolve. (at p645)

12. For these reasons I would dismiss the appeal. (at p645)

13. Watson v. Marshall: The appellant, Shane Andrew Watson, was respondent in the appeal of Marshall v. Watson of which we have disposed this day. All the facts and circumstances relevant to the determination of this appeal are to be found in the reasons for judgment in the said appeal; I have no need here to repeat them. (at p645)

14. As found by the Justice who heard the action, the appellant was falsely imprisoned by the respondent in conveying him by car to the Psychiatric Hospital, Royal Park. The appellant submits that the award of $200 damages for this imprisonment was grossly inadequate and that it should be substituted by a much more substantial award. (at p645)

15. However, in my opinion, the award was quite adequate. The imprisonment was not attended by any features of aggravation or of insult. No physical force of any kind was used. There was no suggestion that the respondent did not honestly believe himself to be doing his duty, and to be entitled, in the circumstances, to convey the appellant to the Psychiatric Hospital. (at p646)

16. In my opinion the appeal should be dismissed. (at p646)

McTIERNAN J. I agree that the appeal and the cross-appeal should be dismissed. I find myself in agreement with the reasons of the Chief Justice. It is clear that s. 42 of the Mental Health Act 1959 (Vict.) which relates to a patient's involuntary admission to and detention in a hospital gave the defendant police officer no authority, express or implied, to convey the plaintiff to the hospital against his will. I am unable to construe s. 103 of the Act in such a way that I can hold that it grants an immunity to the defendant from proceedings of the present nature, because the conveyance of the plaintiff to the hospital was not authorised by any recommendation, order or document on which the defendant relied. As regards the cross-appeal I do not consider that there has been shown any ground for interfering with the learned trial judge's award of damages. (at p646)

MENZIES J. I have read and agree with the judgment prepared by Stephen J. (at p646)

STEPHEN J. On 25th July 1967, the plaintiff, a medical man, was interviewed in his consulting rooms by the defendant, a detective attached to the Special Branch of the Victoria Police, and by Dr. Birrell the police surgeon of the Victoria Police. (at p646)

2. The defendant had on a previous occasion interviewed the plaintiff alone and the plaintiff was well aware of the identity of the defendant, but, on the occasion of this second interview, was led by the defendant to believe that Dr. Birrell was a colleague of the defendant. As on the first occasion, the plaintiff welcomed the interview as an opportunity to impart to the authorities information which he belived he possessed and which concerned allegations involving alleged spying activities by a foreign power, a conspiracy against him and threats to his life. In fact Dr. Birrell and the defendant visited the plaintiff so that Dr. Birrell might form an opinion as to the mental state of the plaintiff. (at p646)

3. In the course of that interview Dr. Birrell formed the opinion that the plaintiff appeared to be mentally ill and when the interview ended the defendant, with two other members of the Victoria Police who were there for that purpose, took the plaintiff by car to Royal Park, a Melbourne psychiatric hospital, where he was admitted for observation and where he subsequently remained involuntarily for some six days. (at p647)

4. The plaintiff subsequently sued the defendant alleging trespass to the person involved in the defendant giving him into the custody of the authorities at Royal Park and in his imprisonment and detention both in the motor car in which he was conveyed to Royal Park and subsequently at Royal Park during the ensuing six days. (at p647)

5. At the trial of the action in this Court before Walsh J. Ante, p. 621. his Honour held that the action of the defendant in taking and conveying the plaintiff under restraint to Royal Park amounted to an imprisonment of the plaintiff and that it was not authorised either by s. 42 of the Mental Health Act 1959 (Vict.), a section concerned with the admission of persons into and their detention in psychiatric hospitals, or at common law. The defendant also sought to rely upon s. 103 of that Act, a section barring civil and criminal proceedings for anything done in reliance on any recommendation, order or other document apparently given in accordance with the requirements of the Act. This defence his Honour also rejected and he accordingly found the defendant liable in damages to the plaintiff but only in respect of the quite short period involved in the taking and conveyance of the plaintiff to Royal Park, holding that the plaintiff's subsequent detention at Royal Park and its alleged consequences were not matters for which the defendant was liable. His Honour found that no actual financial loss was suffered by the plaintiff as a result of the defendant's tortious acts and he assessed damages at $200 for the interference with the plaintiff's personal liberty which was involved. (at p647)

6. The defendant now appeals, limiting his appeal to his Honour's rejection of the two statutory provisions upon which the defendant relied, ss. 42 and 103 of the Mental Health Act 1959. The plaintiff also appeals, appearing in person as he did at the trial, and his appeal is limited to the amount of damages awarded him. (at p647)

7. The main debate on the defendant's appeal turned upon whether s. 42 of the Act authorized the actions of the defendant in taking the plaintiff and conveying him under compulsion to Royal Park. Section 42, so far as relevant, reads as follows:

"42. (1) Any person may be admitted into and detained in a psychiatric hospital upon the production of - (a) a request under the hand of some person in the prescribed form;

(b) a statement of the prescribed particulars; and (c) a recommendation in the prescribed form of a medical practitioner based upon a personal examination of such person made not more than seven clear days before the admission of such person. (2) A request under this section may be signed before or after a recommendation. (3) A medical practitioner shall not make a recommendation in respect of any person for the purposes of this section unless after he has personally examined the person he is of the opinion that the person appears to be mentally ill and that he should be admitted for observation into a psychiatric hospital."

The learned trial judge had concluded that these provisions said nothing expressly as to the relevant events which occurred immediately before admission into Royal Park. He had further held that, in the light of the decision of this Court in McLaughlin v. Fosbery (1904) 1 CLR 546 , he could not treat the legislation as conferring an implied authority upon the defendant to convey the plaintiff to Royal Park following upon the due completion of the three documents specified in sub-s. (1) of s. 42. (at p648)

8. With respect, I agree both with the reasoning and with the conclusion of the learned trial judge on this aspect. Section 42 concerns itself, it is true, with mtters both before and after the conveyance of a person in the plaintiff's position to a psychiatric hospital. It contemplates prior medical examination of such a person followed by the completion of three documents, which will, no doubt, usually take place before conveyance to an institution; it also deals in some detail, in sub-ss. (4) to (10), with events on and after admission into the hospital. However it is silent as to the period from completion of the three documents until admission. It confers no express authority upon anyone to take any action for the physical conveyance to the hospital of the person whose admission has been recommended. In this respect s. 42 and also s. 43, which deals with admission as a patient in a mental hospital or private mental home as distinct from admission as a patient for observation in a psychiatric hospital, differ markedly from ss. 45 and following, which legislate for the apprehension and medical examination of persons appearing to be mentally ill or intellectually defective and who are in neglected circumstances, are suspected of having the purpose of committing a crime or are being ill-treated. In their case, detailed provisions for their apprehension and appearance before justices and for their removal to an appropriate mental institution is made. (at p648)

9. In McLaughlin v. Fosbery (1904) 1 CLR, at p 562 , where the New South Wales legislation under consideration bears a marked similarity to the Victorian Act, the Court drew attention to provisions akin to ss. 45 and following and contrasted them with the counterpart of s. 42 saying, (1904) 1 CLR, at p 562 , that the terms of the latter were

"addressed to a different branch of the subject, namely the conditions on which patients may be admitted to places approved and appointed for their detention, but are silent as to the conditions under which they may be forcibly apprehended and removed."

The Court concluded that the counterpart of s. 42 afforded of itself no protection to persons who acted on an order for the committal of a lunatic. It had been said by the trial judge in that case that power to take an insane person to a hospital was necessarily to be implied from the power to receive into an institution and there detain such a person and, by the New South Wales Full Court, that it could not be supposed that the Legislature would have failed to give the authority necessary to carry into execution the admission and detention of a lunatic; to this the Court said (1904) 1 CLR, at p 559 , that in the interpretation of a statute affecting personal liberty supposition as to the intention of the Legislature had no place, the function of the Court being limited to interpreting and giving effect to the Legislature's will as expressed in the statute. (at p649)

10. Although the legislation here in question is by no means identical with that considered in McLaughlin v. Fosbery (1904) 1 CLR, at p 562 both those observations of the Court and its conclusions appear to me to be equally applicable to the present Victorian Act. Granted that there may seem to be lacking in the legislation powers which it might be thought the Legislature would have done well to include, it is no power of the judicial function to fill gaps disclosed in legislation; as Lord Simonds said in Magor and St. Mellons R.D.C. v. Newport Corporation (1952) AC 189, at p 191 , "If a gap is disclosed, the remedy lies in an amending Act" and not in a "usurpation of the legislative function under the thin disguise of interpretation". The learned trial judge concluded that he ought not to hold that the Act conferred by implication a power to remove a person to hospital merely because the documents specified in s. 42 (1) has been duly completed; with respect I agree with this conclusion. (at p649)

11. It remains therefore to consider the defence based upon s. 103 of the Act. (at p649)

12. The question raised by s. 103 is whether the defendant, in requiring the plaintiff to leave his consulting rooms and accompany the defendant by car to a psychiatric hospital, did so "in reliance on any recommendation order or other document apparently given or made in accordance with the requirements" of the Act. If he did so the section affords a defence to the action and this appeal should succeed. (at p650)

13. The learned trial judge concluded that s. 103 could not be thus availed of. He described the purpose of the section as being to protect those who might rely upon what proved to be defective documents and stated that, since s. 42 did not authorize the act of conveyance to an institution, a recommendation given under that section, being confined, as it must be, to admission to an institution, could not, by implication, be taken to authorise the act of conveyance. Accordingly a recommendation given under s. 42 was incapable of being a document in reliance upon which, within s. 103, the act of conveyance was undertaken. (at p650)

14. To my mind s. 103 has a wider operation than his Honour was prepared to give it; it is not confined to acts done in reliance upon defective documents, but extends to any act of which it can be said that the actor, knowing of a document which was apparently given or made in accordance with the Act's requirements, believed that, by reason of that document, his act was lawful; it is irrelevant whether or not the document, expressly or by implication, authorized the act. (at p650)

15. This meaning of s. 103 appears to me to conform to the ordinary grammatical sense of the words used and gives to the section an operation similar to that assigned to protective provisions frequently found in other legislation conferring statutory powers. (at p650)

16. It was of such provisions that Dixon J. said, in Little v. The Commonwealth (1947) 75 CLR 94, at p 108 , that

"Such enactments have always been construed as giving protection, not where the provisions of the statute have been followed, for then protection would be unnecessary, but where an illegality has been committed by a person honestly acting in the supposed course of the duties or authorities arising from the enactment."

In the course of Dixon J.'s examination of the precise conditions to be fulfilled before the protection provided by such sections could operate his Honour said (1947) 75 CLR, at p 111 :

"Clearly the purpose of a provision limiting or qualifying rights of action against officers and others acting under a statute would not be fulfilled by an interpretation excluding from its operation cases arising from mistaking the law or failing to comply with the requirements of the law." (at p650)

17. He held that the state of the law now was that, provided that there were some circumstances on which to found the defendant's belief that what he had done was lawful, it was enough that his belief was honest. No distinction was to be drawn between mistakes of law or those of fact. His Honour concluded that (1947) 75 CLR, at p 112 :

"The truth is that a man acts in pursuance of a statutory provision when he is honestly engaged in a course of action that falls within the general purpose of the provision. The explanation of his failure to keep within his authority or comply with the conditions governing its exercise may lie in mistake of fact, default in care or judgment, or ignorance or mistake of law. But these are reasons which explain why he needs the protection of the provision and may at the same time justify the conclusion that he acted bona fide in the course he adopted and that it amounted to an attempt to do what is in fact within the purpose of the substantive enactment."

And see also Hamilton v. Halesworth (1937) 58 CLR 369, at p374 , per Starke J. and per Dixon and McTiernan JJ. (1937) 58 CLR, at p 381 , and Trobridge v. Hardy (1955) 94 CLR 147, at pp 156-157 , per Fullagar J., per Kitto J. (1955) 94 CLR, at p166 , and per Taylor J. (1955) 94 CLR, at p175 . (at p651)

18. The usual form of protective provision is phrased in terms of acts done "in pursuance of", "in execution of" or "under and by virtue of" statutory powers; the terms of s. 103 are narrower in the sense that it must be a document, and one of a particular type, which is believed to be being acted upon; but if this requirement be satisfied the section will then operate in the same way as do other protective provisions. (at p651)

19. If this be so it follows that s. 103 should not be restricted to cases in which a relevant document exists which expressly or by necessary implication commands or authorizes the act in question; it is enough if two conditions are satisfied; first, that the actor, whether mistakenly or not, believed that what he was doing was lawful, founding that belief upon the existence of a document; secondly, that that document is one of which it can be said that it was apparently given or made in accordance with the requirements of the Act. In the present case there is no real doubt but that this second condition was satisfied; the three documents were apparently made in accordance with the statutory requirements; but did the defendant, in his action in conveying the plaintiff, against his will, to Royal Park, so act in reliance upon all or any of these three documents? I think not. (at p651)

20. The evidence of the defendant relevant to this issue is to be found partly in his evidence in chief and partly in his evidence on crossexamination. In his evidence in chief he said that towards the end of their interview with the plaintiff Dr. Birrell said to him "You will have to take this man to Royal Park"; Dr. Birrell then started to fill in some forms while the defendant went outside to a motor car and returned with two other police officers who had been waiting in the car. He was then handed by Dr. Birrell a blank form of request for reception of a patient into a psychiatric hospital which Marshall himself filled out. Marshall was vague in his evidence as to the other forms which Dr. Birrell had completed and which he handed him. He said that "Dr. Birrell handed me a couple of forms with the instructions that I convey the doctor to the Royal Park Hospital" and that at that time Dr. Birrell said "You will have to take the doctor to Royal Park". The defendant described his subsequent conversation with the plaintiff as involving his saying to the plaintiff that Dr. Birrell "has instructed me to take you to Royal Park for psychiatric examination and treatment". The only further relevant reference that he made in evidence in chief was in recounting a telephone conversation he had with the plaintiff's Sydney solicitors immediately before taking the plaintiff to Royal Park; he was asked by what authority he was taking away the plaintiff and replied that the plaintiff had just been examined by the police surgeon and in accordance with the Act "is to be taken at the doctor's instructions to Royal Park. I have the necessary forms in my possession". (at p652)

21. The defendant, when cross-examined, took the matter rather further saying that the most important factor in apprehending the plaintiff "would be, having been examined by a qualified medical practitioner, he fulfills the requirements of the Mental Health Act by completing the necessary forms, giving me then the sanction to take you to Royal Park". (at p652)

22. Dr. Birrell's evidence is that he could not recollect his conversation with Marshall at the conclusion of the interview but he believed that he "most certainly would have said I agreed with the diagnosis, he should go to hospital, here are the forms". (at p652)

23. Neither the evidence of Dr. Watson nor that of his present wife throws any additional light upon the subject of the present enquiry. Indeed it is clear from the evidence as a whole that neither party at the trial was concerned to investigate the defendant's state of mind as it might bear upon a defence under s. 103. (at p652)

24. In these circumstances I consider that it has not been shown that the defendant did act in reliance upon the three documents or any of them when he conveyed the plaintiff to Royal Park. No doubt by the time of the trial the defendant was, as his above answer in cross-examination suggests, aware of the possible importance of reliance upon documents but he had earlier informed his Honour, in answer to a question, that at the time of apprehension of the plaintiff his acquaintance with the provisions of the Mental Health Act was very slight, as is confirmed by his vagueness concerning the documents he received from Dr. Birrell. He did, I think, regard his possession of the three documents, duly completed, as part of the material necessary in order to secure the admission of the plaintiff into Royal Park. But as I understand the evidence it was essentially Dr. Birrell's oral instruction, confirming as it did his own layman's diagnosis of the plaintiff's mental state, that he relied upon as rendering it lawful and proper for him to convey the plaintiff, against his will, to Royal Park. (at p653)

25. Accordingly the defendant cannot successfully rely upon s. 103 and it follows that his appeal should be dismissed. (at p653)

26. As to the plaintiff's appeal concerning the basis of assessment of damages and the amount assessed by the learned trial judge, it appears to me to be without substance. I adopt what his Honour said both as to the matters to be taken into account in assessing the plaintiff's damages and as to the confining of damages to the acts prior to his admission to Royal Park. I would accordingly also dismiss the plaintiff's appeal. (at p653)

Orders

Marshall v. Watson : Appeal dismissed with costs.

Watson v. Marshall : Appeal dismissed with costs.