GAVAN MICHAEL McFADZEAN and others (according to the schedule attached)	Plaintiffs
v
CONSTRUCTION, FORESTRY, MINING and ENERGY UNION and others (according to the schedule attached)	Defendants

AND BETWEEN:

CHRISTOPHER CLIFFORD WHEELER and others (according to the schedule attached)	Plaintiffs by Counterclaim
v
GAVAN MICHAEL McFADZEAN and others (according to the schedule attached)	Defendants by Counterclaim

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JUDGE:	Ashley J
WHERE HELD:	Melbourne
DATE OF HEARING:	13, 14, 15, 16, 17, 20, 21, 22, 23, 27, 28, 29, 30 and 31 October 2003; 5, 6, 11, 12, 13, 14, 17, 18, 19, 20, 21, 24, 25, 26, 27 and 29 November 2003; 1, 2, 3 and 4 December 2003; 2, 3, 4, 5, 6, 9, 10, 11, 12,16, 17, 18, 19, 20, 23, 24, 25, 26 and 27 February 2004; 1, 2, 3, 4, 5, 9, 12, 15, 16, 17 and 18 March 2004;
DATE OF JUDGMENT:	19 August 2004
CASE MAY BE CITED AS:	McFadzean and Ors v C.F.M.E.U and Ors
MEDIUM NEUTRAL CITATION:	[2004] VSC 289

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Torts – false imprisonment – whether total restraint – availability of means of egress – whether available means of egress unreasonable – significance, if any, of plaintiffs not apprehending availability of a particular means of egress – significance, if any, of reasons, wholly or partly independent of defendants' conduct, for plaintiffs not leaving place of alleged imprisonment.

Torts – intentional infliction of harm - Wilkinson v Downton – reliance by plaintiffs upon extensive range of action by defendants - also inaction – whether inaction relevant to cause of action – finding that some conduct of defendants, being conduct in concert, was carried out with imputed intention of alarming or frightening plaintiffs – conduct of a kind reasonably capable of alarming or frightening a normal person – what injuries compensable under Wilkinson v Downton cause of action – psychiatric injury – distress – measure of ordinary compensatory damages – whether aggravated compensatory damages or exemplary damages should be awarded.

Torts – public nuisance – whether obstruction to passage of vehicles or pedestrians – whether action maintainable by a particular plaintiff – whether conduct in concert by defendants – measure of damages.

Torts – assault and battery – whether proved claims maintainable against all defendants; or against one or several defendants only, as the case may be – measure of damages.

Admissions – reliance by plaintiffs upon admissions by pleading and in the opening of counsel for defendants – substance of formal admissions made in defence – whether admissions made in opening.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr J. Burnside QC with	Howie & Maher
Mr B. Walters QC, Mr K. Mueller and Mr S. McGregor
For the Defendants	Mr S. Howells with Mr M. Irving	Slater & Gordon

SCHEDULE OF PARTIES

No 7980 of 1999

BETWEEN:

GAVAN MICHAEL McFADZEAN	Firstnamed Plaintiff
KRISTEN LEES	Secondnamed Plaintiff
TESSA JACKSON	Thirdnamed Plaintiff
~~DOMINIK JASKIERNIAK~~

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McFadzean v Construction, Forestry, Mining and Energy Union

Details

AGLC: McFadzean v Construction, Forestry, Mining and Energy Union [2004] VSC 289
Case: [2004] VSC 289
Decision Date: 19 August 2004

CaseChat Overview and Summary

The case of McFadzean v Construction, Forestry, Mining and Energy Union involves a legal dispute in the Federal Court of Australia. The plaintiffs, McFadzean, allege various tortious actions by the defendant union, including false imprisonment, intentional infliction of harm, public nuisance, and assault and battery. The case revolves around events that occurred during a protest involving union members, where the plaintiffs were present and allegedly subjected to various tortious acts.

The legal issues before the court included whether the plaintiffs were falsely imprisoned, the criteria for establishing false imprisonment when an escape route is available, and the relevance of the plaintiffs not perceiving an available means of escape. The court also had to determine whether the union's inaction could contribute to a cause of action for intentional infliction of harm, and if so, what conduct was relevant. Furthermore, the court needed to assess the measure of damages for psychiatric injuries and distress under the Wilkinson v Downton cause of action, and whether aggravated or exemplary damages were warranted. The case also involved questions about the maintainability of a public nuisance action by a specific plaintiff, the relevance of concert action by defendants, and the measure of damages for such claims. Lastly, the court considered the maintainability of assault and battery claims against all or some defendants and the appropriate measure of damages.

In its reasoning, the court found that the plaintiffs were not falsely imprisoned as they had available means of egress, albeit potentially unreasonable. The court determined that the union's inaction could contribute to a cause of action for intentional infliction of harm, provided the conduct was reasonably capable of alarming or frightening a normal person. The court awarded compensatory damages for psychiatric injury and distress under the Wilkinson v Downton cause of action, but declined to award aggravated or exemplary damages. For public nuisance, the court ruled that the action could be maintained by a particular plaintiff and assessed damages accordingly. The court found that the assault and battery claims could proceed against some defendants and determined the appropriate measure of damages.

The court ordered the union to pay compensatory damages to the plaintiffs for psychiatric injury and distress, but denied any claim for aggravated or exemplary damages. The court also awarded damages for public nuisance and assessed damages for the assault and battery claims. The exact amounts awarded were not specified in the summary provided.

Orders