Owlstara v State of New South Wales

[2020] NSWCA 217

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Owlstara v State of New South Wales [2020] NSWCA 217

Hearing dates:

8 and 9 July 2020

Decision date:

15 September 2020

Before:

Basten JA at [1];
Meagher JA at [18];
Emmett AJA at [103]

Decision:

(1)   Appeal allowed.

(2)   Set aside the judgment and orders of the District Court.

(3)   Judgment for the appellant as plaintiff in the sum of $115,000.

(4)   Respondent pay the appellant’s costs of the proceedings in the District Court and of the appeal.

Catchwords:

TORTS – intentional – assault and battery – false imprisonment – justification for arrest – driving offences – need to identify suspect – claim of preventing fabrication of evidence and repetition of offences – compliance with Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 99(3)(b), (e)

POLICE – use of force – arrest – driving offences – pointing gun at offender – handcuffing offender – conveying to police station – whether force used reasonably necessary – compliance with Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 230, 231

DAMAGES – assessment – intentional torts – compensatory damages – aggravated damages – psychological injury – causal connection with arrest – vindication of claimant’s right to liberty and bodily integrity – Civil Liability Act 2002 (NSW) not applied

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 3, 3B, 11A, 15B, 16, 18; Pt 2

Crimes (Sentencing Procedure) Act 1999 (NSW), s 10

Crown Proceedings Act 1998 (NSW)

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 39, 99, 230, 231

Law Reform (Vicarious Liability) Act 1983 (NSW), s 8

Motor Accidents Compensation Act 1999 (NSW), s 8

Road Transport Act 2013 (NSW), ss 68, 175

Cases Cited:

Australian Capital Territory v Crowley (2012) 273 FLR 370; [2012] ACTCA 52

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

George v Rockett (1990) 170 CLR 104

Laminex (Australia) Pty Ltd v Smeeth [1999] NSWCA 462

Lee v Lee [2019] HCA 28; (2019) 93 ALJR 993

Lewis v Australian Capital Territory [2020] HCA 26

Monie v Commonwealth (2005) 63 NSWLR 729; [2005] NSWCA 25

Moore v Scenic Tours Pty Ltd (2020) 94 ALJR 481; [2020] HCA 17

New South Wales v Williamson [2011] NSWCA 183

Prior v Mole (2017) 261 CLR 265; [2017] HCA 10

State of New South Wales v McMaster (2015) 91 NSWLR 666; [2015] NSWCA 228

State of New South Wales v Robinson (2016) 93 NSWLR 280; [2016] NSWCA 334

Category:

Principal judgment

Parties:

Lytha Owlstara (Appellant)
State of New South Wales (Respondent)

Representation:

Counsel:

J C Sheller SC (Appellant)
M Spartalis and D Hume (Respondent)

Solicitors:

Shine Lawyers (Appellant)
Makinson D’Apice (Respondent)

File Number(s):

2019/401260

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

NSWDC [2019]

Date of Decision:

10 December 2019

Before:

Craig QC ADCJ

File Number(s):

2016/133717

HEADNOTE

[This headnote is not to be read as part of the judgment]

After a low-speed motor vehicle pursuit involving the appellant driving her unregistered motor vehicle for approximately 3 kilometres with a police constable’s vehicle behind her and signalling the need for her to pull over, the appellant drove onto her semi-rural property and into its attached garage. The constable stopped his vehicle close but at an oblique angle to the entrance to the garage, and ran in after the appellant’s car with his firearm drawn. For some 19 seconds, neither the constable nor the appellant were in view of the police vehicle’s dashboard camera.

The constable re-entered the view of the camera while stepping backwards out of the garage with his firearm pointed at the appellant’s chest. He proceeded to handcuff the appellant with her hands behind her back and walk her to the front of his police vehicle. She was eventually taken to a nearby police station, where she was held for 6 hours before being released on bail.

The appellant brought claims for false imprisonment, five counts of battery, and assault constituted by the pointing of the firearm.

The constable arrested the appellant. The prohibition in Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA), s 99(3) nevertheless made any arrest unlawful unless the constable suspected, on reasonable grounds, that the appellant’s arrest was necessary for one of the purposes in paras (a)-(f). The constable’s evidence, accepted by the primary judge, was that he suspected arrest was necessary to prevent the fabrication of evidence in respect of the offences and to prevent a repetition or continuation of the offending (s 99(3)(b) and (e)). The primary judge found that the constable had reasonable grounds for that suspicion and dismissed the claim for false imprisonment.

The appellant’s evidence of events in the garage, which included four of the five acts said to be batteries, was rejected by the primary judge. His Honour dismissed her claim for the fifth battery, based on her handcuffing, on the basis that it rose or fell with the claim that her arrest was unauthorised.

As to the claim for assault, the constable gave evidence that he pointed his firearm at the appellant after she exited the vehicle because he mistook her car keys, held in her left hand, for a knife. The primary judge accepted that evidence, finding that although the perception had not been recorded in documents prepared by the constable on the day of the incident, it had been recorded in his statement for the appellant’s prosecution prepared some weeks after the event. (That last finding was mistaken.) His Honour concluded that the pointing of his firearm at the appellant was reasonably necessary for the exercise of the constable’s functions as a police officer, and accordingly that the assault was not actionable by reason of LEPRA, s 230.

Finally, the primary judge assessed damages on the hypothesis that the appellant had been successful as $170,000, including a sum of $90,000 for aggravation of her pre-existing PTSD condition and further treatment of that aggravated condition. The respondent submitted that the sum of $90,000 either should not have been awarded or was excessive, having regard to the uncertainty in the expert psychiatric evidence.

The issues in the appeal were:

1. Whether the constable had reasonable grounds for his suspicion that it was necessary to arrest the appellant to prevent fabrication of evidence of the offences of which she was suspected or to prevent a continuation or repetition of her offending.

2. Whether it was reasonably necessary to the exercise of any of the constable’s functions as a police officer for the constable to point his firearm at the appellant.

3. Whether the expert evidence of the appellant’s psychiatrist, based on her account of her symptoms, justified a finding that the pointing of the firearm at the appellant aggravated her pre-existing PTSD condition.

4. Whether the primary judge had adequate regard to the uncertainty in the psychiatric evidence in making a hypothetical award of $90,000 as damages for aggravation of, and further treatment for, the appellant’s PTSD condition.

Held, allowing the appeal (per Basten JA, Meagher JA and Emmett AJA)

As to issue (i):

1. The constable had coercive powers short of arrest available to him to ascertain the appellant’s identity. The appellant’s offending had ceased, and if she had offended knowingly her arrest and release on bail was unlikely to prevent her from reoffending. In those circumstances the constable did not have reasonable grounds for his suspicion that the appellant’s arrest was necessary for either of the purposes in LEPRA, ss 99(3)(b) or (e): at [8] (Basten JA), [65] (Meagher JA), [122] (Emmett AJA).

State of New South Wales v Robinson (2016) 93 NSWLR 280; [2016] NSWCA 334; George v Rockett (1990) 170 CLR 104; [1990] HCA 26; Prior v Mole (2017) 261 CLR 265; [2017] HCA 10, discussed.

As to issue (ii):

1. The primary judge erred in finding that the constable’s perception that the appellant was holding a knife had been recorded in his statement prepared for the appellant’s prosecution: at [12] (Basten JA), [77] (Meagher JA), [122] (Emmett AJA).

2. The primary judge’s advantage in having seen the constable give evidence was diminished by the almost two year delay between the constable and appellant giving evidence and the entry of judgment: at [17] (Basten JA), [29], [79] (Meagher JA), [122] (Emmett AJA).

Laminex (Australia) Pty Ltd v Smeeth [1999] NSWCA 462; Monie v Commonwealth (2005) 63 NSWLR 729; [2005] NSWCA 25, applied.

1. Having regard to the constable’s failure to record the knife perception in any contemporaneous documents, even after the need for him to justify his conduct must have become obvious, the finding that he had such a perception was glaringly improbable: at [12] (Basten JA), [81] (Meagher JA), [122] (Emmett AJA).

Lee v Lee [2019] HCA 28; (2019) 93 ALJR 993; Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, applied.

1. Absent that finding there could be no basis for concluding that it was reasonably necessary to the exercise of any function as a police officer for the constable to point his firearm at the appellant’s chest. Section 230 was not engaged: at [12] (Basten JA), [81] (Meagher JA), [122] (Emmett AJA).

State of New South Wales v McMaster (2015) 91 NSWLR 666; [2015] NSWCA 228, discussed.

As to issue (iii):

1. The potential unreliability of the appellant’s account of her symptoms, which was supported in general terms by evidence of her daughter and other medical practitioners, did not undermine the basis of her psychiatrist’s opinion. Her psychiatrist took into account the risk of the appellant exaggerating or misattributing her symptoms in forming his opinion: at [13] (Basten JA), [97]-[99] (Meagher JA), [123] (Emmett AJA).

2. The appellant’s psychiatrist’s opinion was that the pointing of the firearm “likely” caused an aggravation of her PTSD condition. His opinion did not need to be certain. The primary judge did not err in accepting that opinion: at [13] (Basten JA), [95], [99] (Meagher JA), [123] (Emmett AJA).

As to issue (iv):

1. The appellant’s psychiatrist’s evidence was uncertain as to the extent of the aggravation of her PTSD condition and the treatment, if any, likely to be required to address or manage her condition referable to that aggravation. The primary judge’s hypothetical award of $90,000 should be reduced to reflect that uncertainty: at [13] (Basten JA), [101] (Meagher JA), [124] (Emmett AJA).

Judgment

1. BASTEN JA: On 14 September 2013 the appellant, Lytha Owlstara, was arrested by a highway patrol officer on suspicion of driving an unregistered and uninsured vehicle, whilst unlicensed, and failing to stop when directed. She later entered guilty pleas to each of those charges, the magistrate accepting the pleas but dismissing the charges under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW). (A charge of resisting arrest was withdrawn.) The present appeal relates to a claim for damages for assault, battery and false imprisonment, the proceedings being brought in the civil jurisdiction of the District Court. The claims failed because the trial judge (Craig ADCJ) was satisfied that the conduct of the arresting officer was in conformity with the requirements of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“the 2002 Act”) and was therefore lawful.

2. The facts have been fully set out by Meagher JA and can be noted shortly for present purposes. The appellant, a nurse by training, had returned the previous day to her home at Menangle Road, Douglas Park, after spending a period of months caring for a terminally ill friend in Muswellbrook.

3. Having been followed over a distance of some three kilometres by a police car with its lights flashing and siren sounding the appellant turned into her own driveway and stopped the car in her garage. The officer drove close to the door of the garage and ran in with his firearm drawn. When ordering her to leave the car, the officer was aware that she was alone, there was no one else in the garage, she had shopping bags with her and she was neither young nor agile. At his direction, she walked to the rear of her car, with him moving away from her backwards, with his gun pointed at her chest. He then told her to face the car whilst he handcuffed her hands behind her back. She was then directed to leave the garage and sit on the ground in front of the police car, an action which was clearly difficult for her to undertake. The officer later changed the handcuffs to allow her hands to be in front of her body and waited until assistance arrived to provide transport for her to Picton Police Station.

4. As explained by Meagher JA, the trial judge rejected the evidence of the appellant in so far as her account of the events described above differed from those of the arresting officer. However, the rejection of the appellant’s account was primarily relevant to damages, rather than liability. The liability of the State for the actions of the officer, which arose pursuant to the Law Reform (Vicarious Liability) Act 1983 (NSW), turned on the existence of factors relied upon by the officer for the arrest, and other undisputed conduct. In particular, the issue of liability turned on whether there were reasonable grounds for the officer’s belief as to prescribed factors justifying the arrest, being matters as to which the State bore the onus of proof.

Lawfulness of arrest

5. As it stood in September 2013, the 2002 Act relevantly provided:

99   Power of police officers to arrest without warrant

…

(2)   A police officer may, without a warrant, arrest a person if the police officer suspects on reasonable grounds that the person has committed an offence under any Act or statutory instrument.

(3)   A police officer must not arrest a person for the purpose of taking proceedings for an offence against the person unless the police officer suspects on reasonable grounds that it is necessary to arrest the person to achieve one or more of the following purposes:

(a)   to ensure the appearance of the person before a court in respect of the offence,

(b)   to prevent a repetition or continuation of the offence or the commission of another offence,

…

(e)   to prevent the fabrication of evidence in respect of the offence,

….

6. There was no dispute that the power conferred by s 99(2) was engaged at the time of the arrest, and that the officer had reasonable grounds for his suspicion with respect to the offending. Nor was it in dispute that the arrest was for the purpose of taking proceedings for the offences. Rather, the lawfulness of the arrest turned on the second limb of s 99(3), namely the reasonableness of his belief that the arrest was necessary to achieve one or more of the particularised purposes.

7. Although the State pleaded in its defence pars (a), (b) and (e) as grounds upon which it was reasonably suspected to be necessary to arrest the plaintiff, in this Court the State relied only upon pars (b) and (e), as to which the officer gave evidence, accepted by the trial judge, as to forming the basis of his suspicion. Accordingly, with respect to the lawfulness of the arrest, the question for this Court was whether the officer’s evidence, taken in the context provided by the surrounding circumstances, established that he had reasonable grounds to suspect that the arrest was “necessary” to achieve those purposes, or one of them. That assessment did not turn on the evidence given by the appellant and not accepted by the trial judge, nor did it depend on rejection of the officer’s evidence, except to the extent it was rendered implausible by objectively known circumstances. (As explained by Meagher JA, the officer’s account of what he said to the appellant inside the garage, with her responses, could not have taken place within the recorded time span.)

8. Indeed, the appellant’s case did not require that this Court be affirmatively satisfied of any particular fact; rather the appellant was entitled to succeed unless, on the rehearing, the Court was affirmatively satisfied that the State had justified the officer’s conduct by establishing reasonable grounds for his belief as to the matters identified in s 99(3)(b) and (e). The reasons for concluding that the State failed in that respect are identified by Meagher JA in terms with which I agree.

Assault by use of force

9. The pointing of the gun at the appellant’s chest, and the handcuffing of the appellant, each involved a use of force, the lawfulness of which turned on the application of either s 230 or s 231 of the 2002 Act. These provisions read as follows:

230   Use of force generally by police officers

It is lawful for a police officer exercising a function under this Act or any other Act or law in relation to an individual or a thing, and anyone helping the police officer, to use such force as is reasonably necessary to exercise the function.

231   Use of force in making an arrest

A police officer or other person who exercises a power to arrest another person may use such force as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest.

10. The inter-relationship of these provisions was not expressly dealt with on the appeal. On one view, if the arrest were unlawful, s 231 was not engaged. Whether s 230 has a separate operation with respect to a police officer making an arrest, where there was no other person assisting the officer, is not clear. However, if the arrest were unlawful, so that the protection provided by s 231 was not engaged, it is unlikely that the protection provided by s 230 with respect to the exercise of a function would be engaged.

11. I do not join in adopting the reasoning of Beazley P in State of New South Wales v McMaster [1] as to the meaning and operation of s 230, when, in McMaster itself, both McColl JA and Meagher JA expressly declined to determine whether s 230 provided an independent statutory justification for what otherwise was an actionable battery. [2] There are two reasons for exercising caution in this regard. First, the reasoning of the President in McMaster at [230] turned on the use of the word “lawful” in s 230 of the 2002 Act, without reference to the fact that s 231 does not use that terminology, and without considering the inter-relationship of the two provisions. Secondly, the President understood s 230 to reflect the policy underlying “the common law operational immunity” applied by the Court of Appeal of the Australian Capital Territory in Australian Capital Territory v Crowley,[3] the reasoning of which the President had earlier rejected in McMaster at [36]-[38] with respect to a claim for battery. Crowley itself was a case in which the claimant was shot by a police officer, but sued in negligence.

    1. (2015) 91 NSWLR 666; [2015] NSWCA 228.

    2. McMaster at [357] (McColl JA) and [360] (Meagher JA).

    3. (2012) 273 FLR 370; [2012] ACTCA 52 at [271]-[273].

12. In any event, the circumstances did not warrant the pointing of the gun at the appellant’s chest, unless perhaps the officer’s belated claim that he thought she was holding a knife in her hand were to be accepted. For the reasons given by Meagher JA, that evidence should not be accepted. I also agree that the State did not satisfy the Court that the handcuffing of the appellant was reasonably necessary for the purpose of carrying out the arrest (assuming the arrest was otherwise justified), or for preventing the appellant’s escape. It follows that the State was liable to the appellant in tort.

Assessment of loss

13. With respect to the assessment of the appellant’s loss, I agree with the conclusions and reasons of Meagher JA, subject to three points of clarification.

14. First, no reference was made in this Court to the application of Pt 2 of the Civil Liability Act 2002 (NSW). That Part governs the award of “personal injury damages” except in relation to an award “that is excluded from the operation of this Part by section 3B.”[4] Subject to that exclusion, s 11A(3) provides that “[a] court cannot award damages … contrary to this Part.” Section 3B(1)(a) excludes the operation of all but two provisions in Pt 2, [5] in respect of liability for “an intentional act”, but only if the act is done by the person “with intent to cause injury”. There is no doubt that the officer’s acts (pointing the gun and handcuffing) were intentional acts; there may, however, have been a live issue as to whether they were done “with intent to cause injury”. The issue was not raised.

    4. Civil Liability Act, s 11A(1).

    5. The provisions which remain applicable are s 15B and s 18(1).

13. Secondly, it is arguable that the apprehension which must result from the knowledge that another person is pointing a gun directly at you from a short distance away, and the physical harm deriving from the application of the handcuffs, may in each case constitute damages for “non-economic loss” as defined in s 3 of the Civil Liability Act, so that recovery will be subject to regulation under s 16. On the other hand, it is arguable that mere fear and apprehension without physical injury or a recognised psychiatric condition consequential upon the assault will not fall within the definition of damages under the Civil Liability Act. [6]

    6. See Moore v Scenic Tours Pty Ltd (2020) 94 ALJR 481; [2020] HCA 17 at [46], [49] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ); [69], [72] (Edelman J).

14. Thirdly, the present case attracted an award of compensatory damages in order to vindicate the appellant’s right to liberty and bodily integrity, absent lawful justification for their infringement by the officer. This was not a case like Lewis v Australian Capital Territory,[7] where the appellant’s right to liberty was infringed by him being unlawfully taken into custody, but in circumstances where the same custody would have resulted had lawful procedures been followed. While the High Court held that there was no “freestanding” right to substantial (that is more than nominal) damages, it did not reject the availability of compensatory damages in vindication of protected rights. [8]

    7. [2020] HCA 26.

    8. Lewis at [14] (Kiefel CJ and Keane J); [21] (Gageler J); [43]-[44] (Gordon J); [170] (Edelman J).

15. In other respects I gratefully adopt the reasoning of Meagher JA and agree with the orders he proposes.

16. MEAGHER JA: The appellant, Lytha Owlstara, appeals from orders made by Craig ADCJ dismissing her claim for damages against the State of NSW for assault, battery and false imprisonment arising from the circumstances of her arrest by Senior Constable Christopher Hurtak, on 14 September 2013, for driving an unregistered and uninsured motor vehicle and failing to stop her vehicle when directed: Lytha Owlstara v State of New South Wales (unreported, NSWDC, Craig ADCJ, 10 December 2019). With the exception of a critical period of 19 seconds, the relevant circumstances were captured on a video camera mounted on the dashboard of the constable’s highway patrol vehicle.

17. After a motor vehicle pursuit which included driving her vehicle for approximately 3 kilometres along Picton and then Menangle Road on the south-western fringes of Sydney, with Constable Hurtak’s vehicle behind her signalling the need for her to pull over, the appellant drove onto her semi-rural property and into a three-car garage. The constable stopped his vehicle close but at an oblique angle to the entrance to that garage, and ran to his right and into the garage on the driver’s side of the appellant’s still moving vehicle, with his firearm drawn and held at his side. At that point he disappeared from the view of the camera. Nineteen seconds later, he is seen slowly stepping backwards at the entrance of the garage with his firearm pointed at the appellant’s chest. He is then seen forcing the appellant, face forward, up against the rear of her vehicle, with her hands on its roof. Constable Hurtak replaced his gun in its holster, handcuffed the appellant with her hands behind her back, and walked her from the garage to the front of the police vehicle.

18. About half an hour later the appellant’s handcuffs were removed (having earlier been loosened and reaffixed with her arms in front of her body) and she was transferred by a caged police vehicle to Narellan Police Station. There she was held, charged with five offences and then released on bail, having been in custody for about six hours. During that period the appellant was treated by an ambulance officer after she had been vomiting, that possibly contributed to by the constable’s earlier use of capsicum spray in the direction of the appellant’s dog.

19. On 23 June 2014, the appellant pleaded guilty to four charges – driving an (1) unregistered and (2) uninsured vehicle, (3) on which motor vehicle tax had not been paid, and (4) failing to stop when directed. A further charge of “resisting an officer in the execution of his duty” was withdrawn. Those guilty pleas were accepted but, instead of recording convictions, the court dismissed each charge pursuant to Crimes (Sentencing Procedure) Act 1999 (NSW), s 10(1)(a).

The appellant’s evidence and case at trial

22. The appellant brought claims against the State for assault, battery and false imprisonment. Her evidence of events in the garage differed in several respects from that of Constable Hurtak. The primary judge rejected her account and accepted that of Constable Hurtak (Judgment at [120], [135]-[138], [168]).

23. The appellant’s evidence was that she was collecting her shopping bags from the passenger seat when the driver’s door opened, something was pressed against the back of her neck, and a male voice said, “I will shoot you” (Judgment at [27]). That was, essentially, her pleaded claim for assault. The person – the appellant maintained that she did not realise he was a police officer – then told her to get out of the car, and dragged her out by her hair (which was then in a bun). As the appellant was pulled from the car, her feet and shins struck the steering wheel and her chest struck the door pillar. She was pulled by her hair towards the back of her car, shoved into the rear windscreen, causing two of her teeth to break, and handcuffed. Following those alleged four batteries, the appellant was dealt with as described earlier and recorded for the most part by the video camera.

24. No claim which resembled Constable Hurtak’s version of the events in the garage was pleaded by the appellant, and the State submitted below that the failure of her claim as pleaded was a sufficient reason for her case of assault to fail. However, as the primary judgment shows at [129], [132], [138], and [203], the appellant ran an alternative case on the assumption that the constable’s version of events was accepted, contending that Constable Hurtak’s pointing of his firearm at her in the garage itself constituted an actionable assault.

25. The State initially maintained the position that the appellant could not make that case in the appeal because it was not pleaded and because the appellant had not given evidence of any apprehension of physical contact by reason of the pointing of a gun after she exited the vehicle. The “pleading point” was withdrawn during oral argument, it being accepted that this basis of claim was in issue in the proceedings below.

26. As to the absence of specific evidence of an apprehension, there is no obstacle to the court inferring that the appellant apprehended unlawful physical contact when Constable Hurtak pointed his firearm at her. That act of its nature was likely to give rise to such an apprehension; it was, on his evidence, a response to a perceived threat and was, it may be inferred, a threat of force against her. The appellant’s evidence was that she “thought [she] was going to be killed” during the entire period in which she remained in the garage. Accordingly the outcome of her claim for that assault will depend on whether Constable Hurtak’s actions were made lawful by Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA), ss 99, 230.

Constable Hurtak’s evidence

27. Constable Hurtak’s account of events after he entered the garage was as follows: (1) he scanned the garage, observing a number of household items and that there was no other person present; (2) the appellant’s vehicle came to a stop and the ignition was turned off; (3) he came to the driver side B-pillar of the vehicle, noting there were shopping bags on the rear seat; (4) he took a “bladed stance” besides the B-pillar, noting there was only one person in the car; (5) he opened the driver’s side door, keeping his firearm by his leg and pointed towards the ground; (6) he exchanged seven consecutive statements with the appellant, on his part explaining that he was a police officer, that her vehicle was unregistered, that she was under arrest, and that she should exit the car (Judgment at [33]-[34]); and (7) after an initial refusal, the appellant stepped sideways from the car and, when instructed to do so by Constable Hurtak, turned and walked towards the back of the car as Constable Hurtak stepped backwards in the same direction.

28. After she had taken two or three steps towards the back of the car, Constable Hurtak saw that the appellant was holding something in her left hand. In the proceedings below, his oral evidence was that he observed a “silver object held in her left hand” of “8 to 10 centimetres in length” which he took to be a knife. The two of them were then about one and a half metres apart. Constable Hurtak raised his firearm and aimed it at the centre of the appellant’s chest. As he did so he asked, “What’s in your left hand? Put it on the ground” (Judgment at [36]), and continued to step backwards out of the garage. The instruction was repeated several times. No part of this incident, other than that the appellant was “holding something in her left hand” as she came to the rear of the car, features in the charge Fact Sheet or the COPS record, each prepared by Constable Hurtak on the day of the arrest. Nor was there any mention in the constable’s lengthy statement, prepared for the purpose of prosecuting the appellant, to his believing at any time that she held a knife in her left hand. That statement was prepared between 16 November 2013 and 9 January 2014 and at a time when the constable was aware that the appellant had made a complaint about his conduct.

The decision of the primary judge

29. Judgment was delivered some 21 months after the conclusion of argument, and almost two years after the evidence of the appellant and Constable Hurtak was given. The existence of such delay provides a possible explanation for deficiencies in decision making, and more relevantly requires that especial care be taken when considering challenges to findings of fact: see especially Laminex (Australia) Pty Ltd v Smeeth [1999] NSWCA 462 at [8]; and Monie v Commonwealth (2005) 63 NSWLR 729; [2005] NSWCA 25 at [3], [43].

30. His Honour held that Constable Hurtak had reasonable grounds for his suspicion that the appellant’s arrest was necessary to prevent a continuation or repetition of the offences, as well as the fabrication of evidence in respect of her offences. It followed that the arrest was authorised by LEPRA, s 99, and the appellant’s claim for false imprisonment relating to the period in which she was under arrest was dismissed (Judgment at [153]-[178]).

31. The appellant’s evidence as to the alleged assault (Judgment at [138]) and four of the five alleged batteries was rejected (Judgment at [139]-[152]). As to the fifth, “pulling the plaintiff’s hands down behind her back and applying handcuffs”, his Honour held that to be lawful “as an aspect of the arrest”. His Honour did not separately consider whether that act was authorised by LEPRA, s 231 as a reasonably necessary use of force, on the basis that the appellant did not “contend that if... her arrest was determined to be lawful, the fitting of handcuffs to her nonetheless constituted an actionable battery” (Judgment at [178]). Finally, his Honour held that Constable Hurtak pointing his firearm at the appellant was lawful as “reasonably necessary” to the exercise of his functions as a police officer (LEPRA, s 230) and dismissed her claim for assault made on that basis (Judgment at [129]-[138]).

The grounds of appeal and cross-appeal

32. The appellant appeals on four grounds. Ground 1 alleges error in the primary judge’s finding that Constable Hurtak “had reasonable grounds to arrest the Appellant” in all the circumstances. Ground 2 takes issue with the primary judge’s failure to make findings of assault and/or battery. Although in terms this ground refers to both “the pointing of a gun at Ms Owlstara" and “the touching, pushing, grabbing, dragging, and threats to throw to the ground”, the appellant’s submissions on ground 2 deal only with the former. At the same time, they accept the findings of the trial judge in relation to what was pleaded as the fifth battery – namely, the pulling of the appellant’s hands behind her back and applying handcuffs (Judgment at [141], [152]). Consistent with the approach of the primary judge, it would seem that if the appellant succeeds on ground 1, her claim for battery also should be upheld so far as it relates to her being handcuffed.

33. Ground 3 concerns the primary judge’s acceptance of Constable Hurtak’s account of the events in the garage, described by the primary judge at [31]-[36], which is said to be glaringly improbable having regard to the extremely short period of time in which those events could have occurred. It is submitted that it was not open to his Honour to “concertina” Constable Hurtak’s account as he did, by finding that events unfolded quickly and that the verbal exchanges described were “rapid fire” (Judgment at [135]).

34. It is not, however, submitted that his Honour should have accepted the appellant’s version of events. Rather, ground 3 is relied on as establishing that “the State has failed to prove what happened in the garage... so as to justify the pointing of the firearm” under LEPRA, s 230, the onus in that respect being on the State to justify what was otherwise an assault. Accordingly not all of Constable Hurtak’s account is challenged. Relevantly, the appellant does not cavil with the acceptance of Constable Hurtak’s evidence that he pointed his firearm at her while backing out of the garage, as is otherwise evident from the video.

35. Ground 4 is conclusory, and does not specify error not already identified by the other grounds.

36. The primary judge assessed damages “on the assumption that the plaintiff had been successful” as $170,000 (J [212]). The appellant claims that hypothetical award in the event that she is successful in the appeal. As will become apparent, there are difficulties in the way in which the primary judge allocated and described the sums awarded for different heads of compensable damage.

37. The amended cross-appeal alleges that his Honour erred in awarding $90,000 – $75,000 for “aggravation of her pre-existing PTSD condition” and $15,000 as a “buffer for future expenses in addressing that condition”. The State submits that the expert evidence could not support a finding that Constable Hurtak’s having pointed his firearm at the appellant aggravated her condition, or did so to an extent justifying the amount awarded. As the State correctly concedes, the cross-appeal does not seek a discharge or variation of any order of the primary judge and is not a true cross-appeal. If the appeal is successful, and this Court has to address the question of damages, the cross-appeal outlines the issues between the parties as to the quantum of damages in circumstances where the appellant claims the amount the primary judge would otherwise have awarded.

38. Looking forward, ground 3 takes issue with the findings of the primary judge relevant to the assessment of the lawfulness of the appellant’s arrest and Constable Hurtak’s conduct in pointing the firearm, each a matter on which the respondent bore the onus. Those issues arise in the consideration of grounds 1 and 2, which I will deal with in that order.

Whether the appellant’s arrest was authorised (ground 1)

LEPRA, s 99(3)

39. It was accepted that Constable Hurtak arrested the appellant for the purpose of taking proceedings for the offences with which she was later charged. It followed, and was also common ground, that the lawfulness of that arrest turned on the application of the prohibition in LEPRA, s 99(3), which at that time provided:

(3)    A police officer must not arrest a person for the purpose of taking proceedings for an offence against the person unless the police officer suspects on reasonable grounds that it is necessary to arrest the person to achieve one or more of the following purposes:

(a)    to ensure the appearance of the person before a court in respect of the offence,

(b)    to prevent a repetition or continuation of the offence or the commission of another offence,

(c)    to prevent the concealment, loss or destruction of evidence relating to the offence,

(d)    to prevent harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence,

(e)    to prevent the fabrication of evidence in respect of the offence,

(f)    to preserve the safety or welfare of the person.

40. Subsection (3) requires first, that Constable Hurtak had a suspicion that the arrest was necessary for one or more of the purposes in pars (a)-(f), and secondly, that he had reasonable grounds for that suspicion: State of New South Wales v Robinson (2016) 93 NSWLR 280; [2016] NSWCA 334 at [34] (Beazley P, Payne JA and Sackville AJA).

41. To say that there are reasonable grounds for a suspicion is to say that those grounds would be sufficient to induce that suspicion in the mind of a reasonable person: George v Rockett (1990) 170 CLR 104 at 112 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ); [1990] HCA 26. What is required to satisfy such a qualifying condition (albeit as to whether a person “has reasonable grounds for believing”) is summarised succinctly by Gageler J in Prior v Mole (2017) 261 CLR 265; [2017] HCA 10 at [24]. A suspicion is only an actual apprehension or fear, more than possibility but short of belief, but what must be suspected is that arrest is necessary in the sense of “required” or “cannot be dispensed with”: Robinson at [43].

42. Although by its amended defence the State also pleaded reliance on subs (3)(a), before the primary judge and on appeal it only pressed subs (3)(b) and (e) as the purposes for which arrest was suspected to be necessary. In his evidence, Constable Hurtak asserted that he considered it necessary to arrest the appellant for both of these purposes (Judgment at [158]):

“Q. Did you consider it necessary to arrest the plaintiff?

A. Yes.

Q. Why?

A. Her identity was unknown to me at the time, to prevent the continuation and repetition of any offences and to prevent the fabrication of events in relation to those offences.”

The primary judge’s reasons

43. The primary judge’s consideration of this issue proceeds as follows. His Honour accepted the constable’s evidence as to his actual state of mind, (Judgment at [170]). With respect to the question whether there were reasonable grounds for his suspecting that arrest was necessary for those purposes, his Honour considered the following matters to be relevant: that the constable had previously considered the property into which the driver turned to be unoccupied; that there was no immediate prospect of other police assistance in dealing with the driver; that the driver had failed to stop in circumstances where it must have been apparent that he or she was being pursued; and that the constable was not aware whether there were other persons present in the vehicle or in the house on the property. His Honour accepted that the constable was justified in the circumstances in questioning why the driver had apparently ignored his presence and appeared to be intent on moving directly into a garage without stopping the vehicle (Judgment at [130], [174]).

44. Having referred to these “extraordinary” circumstances (specifically the lengthy pursuit, at the end of which the appellant drove into her garage without acknowledging the pursuing vehicle) and without addressing at all either of the specific purposes relied on as being the subject of the constable’s suspicion, the primary judge concluded at [176]:

“Considering all of those actions collectively, they seem to me to found reasonable grounds upon which Constable Hurtak could suspect that the arrest of the plaintiff was necessary for the purposes he identified.”

And at [177]:

“It seems to me that the circumstances existing at the relevant time were such as to justify the suspicion that he had.”

45. What is in issue in the appeal is whether the primary judge was justified in reaching these conclusions, the second of which is not in terms that there were reasonable grounds for the constable’s suspicion.

The constable’s suspicion at the time of arrest

46. The relevant suspicion must exist at the time of the arrest. The State’s suggestion in this Court that the arrest commenced with the constable’s opening of the car door was inconsistent with its case below and the evidence, which was that, having opened the door, Constable Hurtak gave the appellant his name, warned her not to make any sudden movements, and then stated that she was under arrest. The difference is significant. By the time the door was opened, the constable had seen that there was only one person in the vehicle, and that she was a middle aged woman with shopping bags in the back seat, and assessed that she posed no threat to him so long as he kept her under observation.

47. The information that the constable required to charge the appellant with the driving offences of which she was suspected emerges from his evidence as to what he would have done had the appellant pulled over to the side of the road when the vehicle pursuit commenced:

“Q. Had the plaintiff pulled over when you first sounded - operated your lights at the first opportunity, what [conversation] would you have had with her?

A. I would have requested her to produce her driver's licence. I would have then informed her that the registration on the vehicle had expired in June 2013. I would have then asked her whether her residential address was the same as what was recorded on driver's licence. I would have then asked her if her driver's licence was suspended or disqualified. I would then have asked her where she was heading and where she had come from.

I would have then returned to the police car. I would have then manually completed traffic infringement notices in relation to those offences. I would have returned her car, provided her with her licence, the penalty notices, and explained the methods of..(not transcribable)..in relation to those notices.

I would have then explained her the process to reinstate or reapply to have the vehicle registration reinstated, so being expired more than three months she would have been required to take the vehicle for a blue slip or an unregistered vehicle inspection - a safety inspection, pay and organise her third-party injury insurance, and then attended the Roads and Maritime Service and had those paid. I would have then directed her to drive straight home from that location to wherever she resides, and then advised her to book those inspections and make those payments in relation to the green slip.”

48. The appellant did not pull over, even though, as is conceded, the constable’s vehicle was immediately behind hers for a distance of approximately 3 kilometres with its blue and red lights activated and siren blaring. The primary judge’s findings at [19] and [20] that the appellant was aware she was being pursued by a police vehicle with the intent of having her vehicle stop are not challenged.

49. That she did not do so justified the constable’s concern as to why she had not acknowledged his presence and pulled over. At the same time, she had not driven over the speed limit and had telegraphed each of her movements. Thus, as the constable conceded, whilst she had not stopped, the appellant did not “appear to be trying to get away from” him.

50. At the end of the pursuit it remained the case that all Constable Hurtak needed to do to ensure the driver of the vehicle was dealt with according to law was to ascertain his or her identity. As he conceded, once the door was opened, Constable Hurtak had the power to compel the appellant to give him her name and address and to produce her driver’s licence. Her not having done so would have been an offence against Road Transport Act 2013 (NSW), s 175(2).

Purpose of preventing fabrication of evidence in respect of offences charged

51. It may be accepted that if the driver had exited the vehicle and entered the residence unseen, his or her identity was capable of being a matter about which evidence might have been fabricated (most obviously by the appellant denying that she was the driver in circumstances where there were other possible drivers in the residence). However, there was at the time of arrest nothing to indicate that preventing such fabrication required more of Constable Hurtak than his observing the appellant in the vehicle, and requiring her to confirm her identity by producing her driver’s licence.

52. The constable’s evidence about “fabrication” showed no concern for that risk. Instead it was directed to fabrication of evidence as to the identity of the owner of the vehicle (Judgment at [158]):

“Q. When you say ‘fabrication’ what do you have in mind?

A. The Roads and Maritime Service are under no obligation in relation to maintaining records of the sale and purchase of any motor vehicles which are unregistered. I considered the duration of the time that it’d been expired that it may have been sold and transferred between multiple [owners].”

53. Further explanation of this concern was given later:

“Q. You gave some evidence before about you were concerned that the plaintiff would create an alibi – that was why I was asking you questions about whether it was necessary – you considered it was necessary to arrest the plaintiff.

A. Yes.

Q. And you gave some evidence about RTA not maintaining records.

A. That’s correct.

...

Q. What did you mean you didn’t want her to be able to create an alibi because RTA or RMS, or whoever they were, didn’t maintain records at that time of ownership?

A. For any offence, to follow that up from the police side, you’re required to conduct a form of demand on the registered owner. If that vehicle has been then sold after the registration has expired, you’ve then got to trace – try and chase up each individual owner, and there’s no real obligation on those owners as to who they’ve sold those vehicles to. There’s no records maintained.

Q. So you wanted to find out who the owner was before the garage door closed.

A. Yes, and the driver.

Q. And the driver so you could identify them.

A. Yes.”

54. While the identity of the owner might have been relevant to what was required “to follow [the incident] up from the police side”, it was wholly irrelevant to the offences of which the appellant was suspected. Those offences were driving an unregistered and uninsured vehicle and failing to stop when directed, contrary to Road Transport Act, s 68(1), Motor Accidents Compensation Act 1999 (NSW), s 8(1)(a) and LEPRA, s 39(a), respectively. Proof of the identity of the driver was the only further evidence that Constable Hurtak required and therefore the only matter about which evidence might be fabricated “in respect of the offence[s]” (LEPRA, s 99(3)(e)). That the owner, if not the driver, might be independently liable for other offences, such as permitting another person to use an uninsured vehicle contrary to Motor Accidents Compensation Act 1999, s 8(1)(b), was not to the point.

55. Although the constable’s evidence was seemingly directed to establishing the identity of the owner of the vehicle, the submission made on behalf of the State remained that a purpose which made the arrest necessary was to prevent the fabrication of evidence as to the identity of the driver of the vehicle. However, immediately before the time of arrest the constable had observed the appellant’s appearance. It was a very small step to ask her to identify herself and produce her licence as she sat in the vehicle, his assessment being that she posed no threat so long as he kept her under observation. The constable had already satisfied himself that there was no other person present in the garage.

Purpose of preventing a repetition or continuation of the offences

56. As Constable Hurtak said in cross-examination, when the appellant was arrested, the relevant offences had ceased and there was nothing which suggested that they were likely to be repeated “immediately”:

“Q. Now, at the time that you opened the car door, the offences had come to an end. That's right, isn't it?

A. With the car stationary?

Q. Yes.

A. Yes.

Q. And there was nothing to suggest, from your observations of Ms Owlstara in the vehicle, once you opened the car door that she intended to continue driving the vehicle?

A. Well, when are we talking about?

Q. Well, there's nothing you saw inside the vehicle to suggest that she was about to drive off, was there?

A. Not immediately, no.”

57. Nevertheless, his evidence was that he arrested the appellant and took her to the police station in order to prevent further offending:

“Q. I just want to step forward for a moment. You ultimately arrested the plaintiff?

A. Yes.

Q. Did you make a decision to take the plaintiff to the police station?

A. Yes.

Q. What was the basis upon which you decided to take the plaintiff to the police station?

A. To prevent the further commission of any offences.”

58. It was never suggested that Constable Hurtak intended to keep the appellant detained for any significant period of time, and she was released from custody later that day. His intention was that she would be granted bail subject to conditions imposed by the custody manager. His evidence as to the significance of those bail conditions to his decision to arrest was equivocal at best:

“Q. Sorry, what bail conditions did you request for Ms Owlstara?

A. I can't remember.

...

Q. Who decides the bail conditions?

A. The custody manager.

Q. Did you have in mind yourself any bail conditions?

A. Just not to commit those same offences.”

59. That is, one of Constable Hurtak’s purposes in arresting the appellant was to ensure that she be placed under obligations in substance the same as those to which she was already subject, with the threat of the revocation of bail. It was not that she be physically prevented in some way (other than during the short period during which she was in custody) from reoffending. The bail conditions to which the appellant was ultimately required to agree included that she not “occupy the driver’s seat of any vehicle whilst on bail” (emphasis added).

Conclusion on satisfaction of s 99(3)

60. In this Court the respondent placed significant emphasis on the exigencies of police work and Constable Hurtak’s fear for his own safety. Factually, that submission is not attractive. At the time of the arrest Constable Hurtak was aware that there was no one else in the garage and did not perceive the appellant to be a threat. What little evidence he had did not suggest that any other occupants of the property were likely to be more threatening. If the appellant was uncooperative, placing her under arrest was unlikely to improve his safety.

61. No attempt was made to relate that submission to the language of s 99(3). A police officer’s fear for their safety might relate to the “commission of another offence” against them, and the circumstances giving rise to such a fear might separately be relevant to paras (a)-(f). But how Constable Hurtak’s fear for his safety supported there being reasonable grounds for his suspicion that it was necessary to arrest Ms Owlstara to prevent a repetition or continuation of her offences, or the fabrication of evidence in respect of them, was not explained.

62. Instead, Constable Hurtak’s evidence confirms what is suggested by the video recording of events following his arrival at the appellant’s property; namely, that he formed the intention to arrest the driver of the vehicle before he entered the garage and for reasons that did not consciously include any purpose of preventing reoffending or fabrication of evidence. That alone tells against his having reasonable grounds: cf. Smith at [126], [131]. The constable was asked what he did when the appellant’s vehicle turned into the driveway of her property:

“Q. Did you make a notification [on the police radio]?   

A. I advised them that the vehicle had turned into the driveway of a property.

Q. Did you know the address of the property?

A. No.

Q. All right, what happened then?

A. The vehicle has continued along the driveway, which--

Q. Did you follow it in?

A. I did.

Q. Why did you follow it in?

A. To apprehend and arrest the driver.

Q. Why?   

A. I could not confirm their identity. They'd committed offences of using an unregistered and uninsured motor vehicle and for failing to stop when directed to do so, and I also believed that the driver may have been a suspended driver.”

63. The appellant was a middle-aged woman and the items in her car and garage suggested domesticity. Even if she proved uncooperative – which was at that point only a possibility – Constable Hurtak had coercive powers short of arrest available to ascertain her identity, the only information he required to ensure she was charged.

64. As to preventing a repetition of the offending, there was nothing to suggest that the appellant knew her car was unregistered and uninsured and that her offending (other than failing to stop when directed) was other than inadvertent. The evidence offered no possible explanation as to why in these circumstances it might be thought necessary to arrest the appellant rather than simply provide to her the explanation which the constable would have given if she had pulled over at the commencement of the close pursuit. If there was a perceived risk of reoffending it was not obviously curtailed by her arrest and release on bail, especially if it was thought she had offended consciously.

65. The evidence did not justify a conclusion that there were reasonable grounds for any suspicion of the constable that arrest was necessary for either of the purposes in ss 99(3)(b) or (e). It follows that the appellant’s arrest was unlawful and that her claim for false imprisonment is made out. It also follows that her claim for battery, in respect of her handcuffing, is also made out. Her claim for assault constituted by the pointing of the firearm is dealt with below.

Whether it was reasonably necessary for Constable Hurtak to train his firearm on the appellant (ground 2)

66. At the relevant time, ss 230 and 231 of LEPRA provided:

230   Use of force generally by police officers

It is lawful for a police officer exercising a function under this Act or any other Act or law in relation to an individual or a thing, and anyone helping the police officer, to use such force as is reasonably necessary to exercise the function.

231   Use of force in making an arrest

A police officer or other person who exercises a power to arrest another person may use such force as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest.

67. The appeal was argued on the basis that the effect of s 230 was to make “lawful”, and therefore not actionable, conduct that would otherwise be tortious: State of New South Wales v McMaster (2015) 91 NSWLR 666; [2015] NSWCA 228 at [230] (Beazley P). Thus, reasonably necessary force used by a police officer in the course of an (authorised) arrest or the exercise of some other function will not constitute assault or battery. But the prima facie position remains that a use of force is an assault or battery unless and until justified. As Campbell JA said in New South Wales v Williamson [2011] NSWCA 183 at [24]:

A lawful arrest can provide the legal justification for what would otherwise be the tort of false imprisonment. If reasonable force is used in the course of effecting a lawful arrest, that can provide a legal justification for what would otherwise be an assault or battery.

68. The primary judge concluded that s 230 was satisfied, because the use of force was “reasonably necessary” to the exercise of Constable Hurtak’s “functions as a police officer” (at [230]). On the evidence those functions included charging the appellant with the driving and other offences with which she was later charged and, for the purpose of doing so, compelling her to provide her name and address, and to produce her driver’s licence. As Basten JA observes at [10], there is a question, which it is not necessary to decide in this appeal, as to whether s 230 has a separate operation where s 231 is not engaged.

69. The central issue on ground 2 was whether his Honour erred in finding that Constable Hurtak thought the appellant was holding a knife in her left hand, so as to justify him raising his firearm and pointing it at the appellant’s chest.

70. At least part of Constable Hurtak’s account of events in the garage (see above at [27] and [28]) cannot be correct. It is simply not possible to fit into 19 seconds all of the conversation which the constable said took place between him and the appellant after he opened the car door, even if both spoke quickly, together with the appellant’s delay in exiting the vehicle and her slow movement towards the entry to the garage. However, as will be seen, it is unnecessary to consider how far the primary judge should have accepted the other elements of Constable Hurtak’s version of events.

Whether Constable Hurtak perceived the plaintiff to be holding a knife

71. Constable Hurtak gave three different accounts of events in the garage: one in the records prepared on 14 September 2013; another in the statement prepared for the appellant’s prosecution before Picton Local Court; and another in his evidence at first instance in November 2017. In each there is reference to an object held in the appellant’s left hand as she approaches the rear of her car. In the second and third, that reference is connected to his aiming his firearm at her, which did not feature at all in the two records of the first account. And only in his oral evidence did he claim that he initially believed that object to be a knife of some 8-10 cm in length.

72. Constable Hurtak was cross-examined on these inconsistencies. Initially, he claimed that the “knife” was mentioned in the statement prepared for the appellant’s prosecution:

“Q. May have been holding a knife. Now, did you write down anywhere, that belief?

A. No.

Q. Did it make it into the COPS entry?

A. In the narrative, no, I don’t believe so.

Q. Did it make it into your final statement?

A. Yes.

Q. It did, that she was holding a knife in your belief.

A. Yes.”

73. When taken to the statement (which was not tendered in evidence) he conceded that this was not “specifically” so:

“Q. So no mention of a knife.

A. Not specifically a knife.

Q. Why – why do you say not – specifically not? Senior Constable, what do you mean by the word “specifically”?

A. Because I haven’t written “knife” in my statement.”

74. No explanation was provided for the absence of any reference to a knife in any of the versions of events produced before the hearing at first instance, although Constable Hurtak gave evidence that he had told other police officers about the “knife”, including the officer charged with investigating the appellant’s complaint about his conduct. No evidence was led from other police officers that this was so.

75. Before the primary judge, the appellant submitted that Constable Hurtak’s evidence that he mistook the car keys for a knife was untrue. The primary judge rejected that submission, in passages it is necessary to set out in full:

[116]   That inference, in turn, is said to be supported by the failure of Constable Hurtak to record the apprehension of the plaintiff holding the knife in any contemporaneous record made by him. The absence of evidence from any police officer to whom Constable Hurtak is said to have told about his short term apprehension of the plaintiff holding a knife is repeated.

[117]   Neither the COPS record (Exhibit D) nor the Facts Sheet (Exhibit 00) prepared on 14 September record that aspect of the incident. Each document does record that Constable Hurtak drew his service firearm and also records that the plaintiff held “something in her left hand”. It then records that as she was being restrained at the rear of the vehicle, she threw “the object from the left hand over the motor vehicle across the garage approximately 6 metres (Car Keys)”.

[118]   With hindsight, it would have been prudent for Constable Hurtak to have recorded that detail at the time of preparing documents on 14 September. However, I do not place great store on the omission of that detail on 14 September as a basis upon which I should not accept the veracity of his evidence. That aspect of the incident is recorded in the statement of evidence that he commenced to prepare some ten weeks later, being the statement prepared for the proceedings before Picton Local Court and upon which he was cross-examined in the present proceedings. While that statement was prepared in the knowledge that a complaint concerning his conduct had been made by the plaintiff, the inclusion of the detail is as consistent with the need to detail all aspects of the incident as it is with a suggestion of recent invention.” [emphasis added]

76. The State submits that “that aspect of the incident” in [118] refers only to Constable Hurtak’s perception that the appellant was holding a potentially dangerous object (not, “specifically”, a knife) and his raising his gun in response. Having regard to what appears at [116], that is plainly incorrect, and in any event it was not proved that the statement contained any suggestion that Constable Hurtak perceived the object to be potentially dangerous (other than might be implied by its apparent connection with the raising of the firearm).

77. The primary judge erred in finding at [97] and [118] that the perception that the appellant was holding a knife was mentioned in the constable’s prosecution statement. Another error appears at [96], where his Honour records that the constable believed the “knife” perception was mentioned in the COPS record (cf. [72] above).

78. The ultimate finding that Constable Hurtak perceived the appellant to be holding a knife may have been informed by the primary judge’s impression of the constable as a reliable witness. Ordinarily, such a finding should not be interfered with unless “glaringly improbable” or “contrary to compelling inferences”: see Lee v Lee [2019] HCA 28; (2019) 93 ALJR 993 at [55] (Bell, Gageler, Nettle and Edelman JJ); Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [29] (Gleeson CJ, Gummow and Kirby JJ).

79. However, the nearly two year delay in delivering judgment must be taken to have significantly weakened the primary judge’s advantage in seeing the witness. Furthermore, his Honour’s “impression” that Constable Hurtak was “endeavouring to be truthful” about his recollection of events (the first paragraph numbered 98 in the judgment) was likely informed by his Honour’s wrong understanding that the circumstance that the constable thought the item in the appellant’s left hand was a knife had been included in his statement prepared some 10 weeks after the incident. Rather, the position was that in that statement, prepared with the knowledge of the appellant’s misconduct claim, and relatively soon after the relevant events, the constable did not record having such a perception when he aimed his firearm at the appellant, even though he specifically described raising his firearm after noticing an object in her left hand.

80. Considered without reference to the constable’s various accounts, there might have been nothing glaringly improbable about a finding that Constable Hurtak mistook the car keys for a knife, particularly if there was evidence that they could have taken on that appearance. But the likelihood of the constable having had such a perception must be assessed in the absence of such evidence and in the light of his failure to mention that critical detail in any roughly contemporaneous document, and even after the need to explain his conduct, including pointing the firearm, had become obvious. The inference to be drawn from those documents, prepared nearly four years before the constable gave evidence in the District Court, is that the constable did not recall having such a perception at the time they were created.

81. In the result, the primary judge’s finding, based as it was upon a fundamentally wrong understanding as to what was in the prosecution statement, was “glaringly improbable”. In the absence of that finding there was no basis in the evidence for concluding that the pointing of his firearm at the appellant was reasonably necessary for the exercise of whatever function the constable was seeking to perform (cf. LEPRA, s 230).

82. On Constable Hurtak’s evidence, at the time he aimed his firearm at the appellant he was stepping backwards out of the garage, roughly one and a half metres from the plaintiff, who was walking towards the rear of her car on his instructions. She was moving slowly. Before he raised his firearm, he did not ask the appellant to stop, ask her what she was holding, or instruct her to drop the object. They were alone in the garage. She was a middle-aged woman who was, to say the least, unlikely to present a physical threat to Constable Hurtak. The household items in the garage and the shopping bags in her car did not suggest otherwise. She was obeying his instructions to get out of the car and walk towards the entry to the garage.

83. Ground 2 should also be upheld.

Assessment of damages

84. The primary judge’s hypothetical award of $170,000 at [212] had four components: $30,000 as “vindicatory damages for each of the three torts”; $75,000 for “aggravation of her pre-existing PTSD condition” together with $15,000 as a “buffer for future expenses in addressing that condition”; and $50,000 as “exemplary damages” (Judgment at [211]). The State does not take issue with the $50,000 awarded by way of exemplary damages (although described by the primary judge as “aggravated” damages) or the $30,000 awarded as general damages for the assault involved in the pointing of the firearm, the battery constituted by the handcuffing, and the false imprisonment relating to the six hours in custody.

85. Pausing here, there is a problem with the primary judge’s description of that $30,000 as “vindicatory” damages. Australian law does not recognise vindicatory damages as a distinct species of damages, “not moored to a compensatory or punitive principle, or to the standard award of nominal damages”: Lewis v Australian Capital Territory [2020] HCA 26 at [107], [122] (Gordon J, Gageler J agreeing at [22]), [153] (Edelman J, Kiefel CJ and Keane J agreeing at [2]). However, the appellant is entitled to substantial compensation for the three torts, and no objection was taken on appeal to the award of $30,000. An award of similar magnitude can properly form part of an award of compensatory damages by this Court.

86. Rather, the State submits that the medical evidence was too uncertain to support the primary judge’s finding that the pointing of the gun at the appellant aggravated her pre-existing PTSD condition and that the sums awarded as compensation and for economic loss “in addressing that condition” were excessive having regard to that uncertainty. It is not now disputed that the appellant had a pre-existing PTSD condition referable to other traumas, including past domestic violence, at the time of the incident.

Was there an aggravation of the appellant’s pre-existing PTSD condition?

87. The expert psychiatric evidence of Dr Graham Vickery and Dr Christopher Bench, retained by the respondent and appellant respectively, is central to this issue.

88. The appellant was initially evaluated by Dr Bench in January 2016. Based on her account of events, his view was that she met the diagnostic criteria for PTSD and that her condition was “in the severe range”. It was his opinion that she would likely require twelve to eighteen sessions with a psychiatrist in the first twelve months, which with good results could be reduced to six to twelve sessions in the subsequent twelve months. She would also “likely require in the vicinity of twelve to fifteen sessions” of psychotherapy on an annual basis for the next two years, and might benefit from further sessions on a quarterly basis for a further two to three years. He noted as well that the appellant might benefit from psychiatric medication on a lifelong basis, in which case she would require monthly or bi-monthly monitoring.

89. In May 2017, the two experts prepared a joint report. They had both evaluated the appellant on one prior occasion, and were then in agreement that the appellant met the diagnostic criteria for PTSD and that the cause of her condition was what transpired on 14 September 2013. Dr Vickery generally did not demur from Dr Bench’s earlier assessment of the treatment likely to be required by the appellant.

90. A further joint report was prepared in February 2018, after both experts had watched the video recording of the appellant’s arrest. Dr Vickery, then informed by the State, contrary to what emerged at trial, that “there [was] no evidence [the gun] was pointed directly at Ms Owlstara”, resiled from his opinion that the appellant had PTSD caused by the events of 14 September 2013.

91. Dr Bench also modified his position. He emphasised the need for caution in attributing all of her symptoms to the relevant events. It was his view that the appellant had likely previously met the diagnostic criteria for PTSD and that the incident had “likely caused an aggravation or perpetuation of symptomatology consistent with [PTSD]”. However, it remained “unclear the degree to which the subject incident was causative of her symptomatology.... This incident may well have been one of a number of stresses” contributing to her symptoms of PTSD. He could not “comment with a reasonable degree of medical certainty” on her present needs for psychiatric or psychological treatment. That joint report concluded:

“Dr Bench again would just like to state that Ms Owlstara likely has some significant mental health difficulties that may encompass [PTSD] and/or a significant personality disorder. She will likely benefit from some level of psychiatric treatment including psychotherapy. Whether this continues to be related to the subject incident is now wholly unclear.”

92. The experts gave their oral evidence jointly. Much of that evidence was directed towards whether Constable Hurtak’s pointing of his gun at the appellant satisfied “criterion A” for PTSD in the DSM-V, and is not directly relevant to whether the appellant suffered an aggravation of a pre-existing PTSD condition. Presented with Constable Hurtak’s evidence that he had pointed his firearm at the appellant’s chest, Dr Vickery insisted that such an incident could not qualify as life-threatening. Dr Bench maintained his position as in the second joint report:

“WITNESS BENCH: One of the - sorry, one of the most significant factors with regard to ultimately developing post-traumatic stress disorder is so-called trauma load, so her vulnerability promoted by the domestic violence has increased her pre-disposition to subsequently developing post-traumatic stress disorder. The incident on 14 September was another further incident of violence or possible violence against her, so I think it very understandable that with a gun being pointed at her, that was sufficient to trigger a probable aggravation of the post-traumatic stress disorder.

WITNESS VICKERY: But that's based on the premise, is it not, that she did have PTSD before that.

WITNESS BENCH: I think that whether she had full-blown PTSD is a little unclear. She certainly, as we said earlier, seemed to have down-played her earlier symptomatology, so again I thought we had decided in conclave that if she didn't have post-traumatic stress disorder before the event, then she certainly had vulnerability, some signs of symptoms there you documented in your report. In November 2017, you noted phobia of police sirens, seeing police officers trigger her symptomatology. You noted hypervigilance. You noted insomnia and depression. So at the bare minimum, she's got some trauma-led psychopathology, even if she doesn't have full-blown PTSD.

Whether there was full-blown PTSD before this incident I think is a little unclear. I think in hindsight, she probably has down-played that pre-incident psychopathology and she probably has had post-traumatic stress disorder at some stage in her psychiatric career, let's say, and that this incident was a further trauma to basically aggravate or reactivate her symptomatology.”

93. At [202], the primary judge essentially accepted the evidence of Dr Bench:

“Having considered the psychiatric evidence, I prefer that given by Dr Bench. He did not seek to resile from what he had said in the conclave report of 27 February 2018 (Exhibit H) but responded to the events that were the subject of Dr Vickery's evidence, realistically, that the presentation of a firearm towards one's chest at a distance of 1.5 metres was likely to trigger a life threatening response. I believe that what he was saying was that in the case of the plaintiff, such were her existing psychiatric difficulties, while others may not have responded, in time, in the manner in which the plaintiff apparently responded, her vulnerability at least explains her condition. I take the response to be an exacerbation of the pre-existing condition.”

94. The State’s attack on that finding of causation has two strands. First, it is said that Dr Bench’s opinion was based on the appellant’s evidence of her symptoms, which was unreliable; and secondly, it is said that Dr Bench’s evidence was entirely equivocal about the aetiology of her symptoms.

95. The second of these can be disposed of briefly. Dr Bench’s evidence was equivocal about the extent to which her symptoms were attributable to the relevant events, and particularly about whether they remained attributable, but not about whether those events caused some degree of aggravation of her condition. There was nothing inherently unlikely in a woman now conceded to have had a pre-existing PTSD condition responding poorly to a police officer pointing a firearm at her chest from a distance of one and a half metres. On Dr Bench’s evidence, it was “likely” or probable that those events aggravated her PTSD. It did not need to be certain.

96. The first attack on that finding is more compelling, but ultimately also must fail. The State emphasises the appellant’s general unreliability, that her response to the incident as recorded on video was atypical for an incident causing or exacerbating PTSD, and that the second joint report acknowledged the possibility of misattribution. These submissions are addressed in turn.

97. As to the first, the appellant’s daughter gave generally supportive evidence, which the primary judge accepted at [194]-[195], that her mother had become cautious and withdrawn after the incident. Medical records from the appellant’s general practitioner and psychologist show that they did not perceive her account of her symptoms to be implausible, although the evidentiary value of those records is diminished somewhat by their reliance on the appellant’s version of events, as the primary judge explained at [191]-[192].

98. As to the second, the appellant’s immediate response to the incident, said to be atypical, was given the following plausible explanation by Dr Bench in his oral evidence. The appellant, as a survivor of domestic violence, may have had “fairly adaptive coping mechanisms” which caused her to present atypically in the immediate aftermath of the incident while there was “potential for further trauma”. Those coping mechanisms eroded over the subsequent days or weeks, and her condition was exacerbated or re-aggravated. In Dr Bench’s opinion, the gradual erosion of coping mechanisms was a common feature of PTSD: the “majority of people who develop [PTSD] do not have acute stress disorder”.

99. Finally, that Dr Bench was conscious of the risk of the appellant exaggerating or misattributing her symptoms, and formed his opinion having regard to that risk, strengthens rather than diminishes the force of his evidence. He realistically conceded that the appellant’s “motive” for a diagnosis of PTSD was relevant to the reliability of her account of her symptoms. His opinion that aggravation was “likely” was arrived at “in [the] context” of the risk of misattribution created by unreliable self-reporting. The primary judge is not shown to have erred in preferring Dr Bench’s opinion as ultimately more realistic than that of Dr Vickery.

Quantification    

100. The respondent’s submission that the size of the award for aggravation of PTSD and future treatment expenses could not be justified should nevertheless be accepted. Although the primary judge was correct to find that there had been an aggravation of the appellant’s existing condition as a result of the incident, the evidence was extremely uncertain as to whether that existing condition was “full-blown PTSD” and as to the extent of the aggravation and treatment, if any, likely to be required to address or manage her condition referable to that aggravation. Dr Bench’s evidence suggested that the appellant may benefit from some form of psychiatric treatment or psychotherapy, and might continue to benefit from such treatment in the future. But as he acknowledged, the extent to which her need for treatment “continues to be related to the subject incident is now wholly unclear”.

101. The primary judge’s reasoning and award of $90,000 in relation to the aggravation of the appellant’s existing psychiatric condition did not take sufficient account of these substantial uncertainties, making it necessary that those components of the damages award be reduced to reflect them. The award of damages for aggravation of the appellant’s condition should properly form part of an overall award of compensation for the three torts. After adjusting the damages for aggravation of the existing condition, that amount should be $60,000. The allowance for future treatment expenses should be reduced to $5,000. Adopting the sum of $50,000 for exemplary damages, there should be judgment for the appellant in the sum of $115,000.

Conclusion

102. For those reasons, I would make the following orders:

1. Appeal allowed.

2. Set aside the judgment and orders of the District Court.

3. Judgment for the appellant as plaintiff in the sum of $115,000.

4. Respondent pay the appellant’s costs of the proceedings in the District Court and of the appeal.

103. EMMETT AJA:

Introduction

104. The principal question in this appeal is whether the appellant, Ms Lytha Owlstara (the Appellant), is entitled to damages from the respondent, the State of New South Wales (the State), in respect of alleged assault, battery and wrongful imprisonment by Senior Constable Christopher Hurtak of the New South Wales Police Force (the Officer). The Appellant sued the State in the District Court of New South Wales under s 8 of the Law Reform (Vicarious Liability) Act 1983 (NSW) and the Crown Proceedings Act 1988 (NSW), pursuant to which the State is vicariously liable in respect of torts committed by persons in the service of the Crown, including police officers. A judge of the District Court (the primary judge) directed the entry of a verdict for the State and the Appellant now appeals to this Court from the orders made by the primary judge.

105. It is common ground that, on 14 September 2013, the Appellant was arrested by the Officer. The first question is whether that arrest was lawful having regard to the provisions of s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (the Law Enforcement Act).

106. At the relevant time, 99(2) of the Law Enforcement Act provided, relevantly, that a police officer may, without a warrant, arrest a person if the police officer suspects, on reasonable grounds that the person has committed an offence under any act or statutory instrument. However, s 99(3) relevantly provided that a police officer must not arrest a person for the purpose of taking proceedings for an offence against the person unless the police officer suspects, on reasonable grounds, that it is necessary to arrest the person to achieve one or more of the purposes specified in s 99(3). For present purposes, the State relied on s 99(3)(b) and s 99(3)(e), which respectively specified the following purposes:

• to prevent a repetition or continuation of the offence or the commission of another offence; and

• to prevent the fabrication of evidence in respect of the offence.

107. The Appellant accepted, for the purposes of the proceedings in the District Court, that the Officer did in fact suspect that it was necessary to arrest her to achieve one or other of those purposes. However, the Appellant disputed that there were reasonable grounds for the Officer to suspect that it was necessary to arrest her.

Application of the Law Enforcement Act

108. The primary judge accepted that s 99(3) was satisfied in the light of the evidence given by the Officer. The Officer said that he first observed an unregistered motor vehicle being driven in Picton Road, on the south-western fringes of Sydney. He signalled the driver of the vehicle to pull over but the driver failed to do so. The Officer followed the unregistered vehicle to a property situated in Menangle Road, where the vehicle was driven into a garage on the property. The Officer stopped his vehicle and ran to the garage where he drew his firearm and opened the door of the vehicle. He observed the Appellant sitting in the driver’s seat. Thereupon, the Officer arrested the Appellant and handcuffed her.

109. The Officer said that he followed the vehicle into the garage to apprehend and arrest the driver, who had committed the offences of using an unregistered and uninsured motor vehicle and failing to stop when directed to do so by a police officer. He said that he believed that the driver may have been a suspended driver but could not confirm the identity of the driver. The Officer said that he wanted to find out who the owner and the driver of the unregistered vehicle were before the garage door closed so that he could identify the driver.

110. The Officer said that he considered it was necessary to arrest the Appellant to prevent the continuation and repetition of the offences of using an unregistered and uninsured motor vehicle and failing to stop when directed to do so by a police officer and to prevent the fabrication of evidence in respect of those offences. He explained that by “fabrication” he had in mind that the identity of the driver was unknown to him at the time and that the Roads and Maritime Service was under no obligation to maintain records of the sale and purchase of unregistered motor vehicles and that he considered that, having regard to the time that had expired since the vehicle in question had ceased to be registered, it may have been sold and transferred between multiple people.

111. The Officer said that he arrested the Appellant and made the decision to take her to the police station to prevent the further commission of the offences of using the unregistered and uninsured motor vehicle and driving while suspended. He said that he handcuffed the Appellant to prevent her from trying to escape or from injuring him.

112. The first question is whether the Officer had reasonable grounds for suspecting that it was necessary to arrest the Appellant to prevent a repetition or continuation of the offences of driving an unregistered motor vehicle or driving while suspended or failing to obey the demands of a police officer or to prevent the fabrication of evidence in respect of those offences. The case advanced on behalf of the State was that the Officer suspected that it was necessary to arrest the Appellant because, if he did not do so, she may once again drive the unregistered vehicle. Alternatively, he suspected that it was necessary to arrest her to prevent the fabrication of evidence of an alibi. The thought processes of the Officer as to what evidence could in fact have been fabricated were not pursued in his evidence.

113. All the Officer needed to establish in order to demonstrate the commission of the offence of driving the unregistered vehicle was to identify the driver. He acknowledged in cross-examination that he had powers to require the Appellant to provide him with her name and address, to direct her to give him that information and to inform her that, if she did not, she would be committing an offence. The Officer accepted that he was entitled, when he opened the vehicle door and saw the Appellant in the car, to require her to produce her licence in addition to provide him with her name and address. He accepted that, if the Appellant had provided him with her licence or her name and address, he could have made checks in relation to that information and check the licence details.

114. The Officer accepted that, when he opened the door, looked inside the vehicle and saw a middle-aged woman with a shopping bag seated in the vehicle, he realised that the Appellant did not pose any threat. He accepted that, for so long as he kept the Appellant under observation while he was talking to her, he did not have any reason to think that she would pose any threat. He accepted that he was in a position to ask her whether she had noticed that he had been following her for some distance and to ask her questions about what she had been doing. The Officer conceded that, once the door was opened, he had the power to compel the Appellant to give him her name and address and to produce her driver’s licence and that failing to do so would be an offence. [9] He accepted that he was in a position to ask her questions about registration of the vehicle and what she had been up to by not pulling over. He accepted that he did not do any of those things, in circumstances where the Appellant posed no threat to him.

     9. See Road Transport Act 2013 (NSW), ss 175(2) and 177.

115. The Officer also agreed that, if the Appellant had given him the information about ownership of the vehicle and about her name and address, he would have been in a position to take proceedings in relation to what he had observed on Picton Road and Menangle Road. He agreed that, if the Appellant had admitted that she was the registered owner of the vehicle, he would have made some inquiries to make sure that that was correct.

116. The Officer accepted in cross-examination that all he needed to take the matter further by, for example, preparing and issuing a Court Attendance Notice, was the identity of the driver of the vehicle. He accepted that, had the Appellant pulled over when he first operated his lights and siren, he would have requested her to produce her driver’s licence. He would then have informed her that the registration on the vehicle had expired in June 2013 and would have asked her whether her residential address was the same as that recorded on the licence. He would then have asked her if her driver’s licence was suspended or disqualified and would have asked her where she was heading and where she had come from. He would then have returned to the police car and would have manually completed traffic infringement notices in relation to those offences. He would then have returned to the Appellant’s vehicle and returned her licence to her, provided her with the penalty notices and explained the methods of dealing with the notices.

117. The Officer said that he would have then explained to the Appellant the process for applying to have the registration of the vehicle reinstated. He would have said that, being expired for more than three months, the Appellant would have been required to take the vehicle for an unregistered vehicle inspection, pay and organise her third-party insurance and then attend at Roads and Maritime Service and pay the relevant fees. He would then have directed her to drive straight home from that location to wherever she resided and would then have advised her to book the inspections and make the payments in relation to the green slip.

118. On the findings made by the primary judge, the conduct of the Appellant is inexplicable. The evidence demonstrates that there can be no doubt that she was aware that a police car was behind the vehicle she was driving. For example, at one stage, she pulled over to the left, apparently to let the police vehicle pass her but when it did not, she pulled back into the centre of the road and continued driving. The primary judge accepted that the Officer was sounding his siren and flashing red and blue lights behind the vehicle being driven by the Appellant. Nevertheless, for approximately three kilometres, she continued to drive and declined to pull over. When she reached her property, she pulled directly into the driveway and proceeded immediately into the garage, notwithstanding that the police vehicle followed her into the property.

119. The primary judge found that the Appellant was aware that she was being pursued by a police vehicle with the intent of having her vehicle stop and that finding is not challenged. The Appellant’s actions, in failing to acknowledge the police vehicle and failing to pull over, justified considerable concern on the part of the Officer, notwithstanding that the Appellant was not driving over the speed limit, telegraphed her movements and did not appear to be trying to get away from him. One must have the utmost sympathy for the Officer in dealing with a driver who was apparently prepared to ignore a police officer. Nevertheless, at the end of the pursuit, all that the Officer needed to do to ensure the driver of the vehicle was dealt with according to law was to ascertain the identity of the driver.

120. If the Appellant had left the vehicle and entered the residence unseen, evidence as to the identity of the driver might have been fabricated, for example, by the Appellant denying that she was the driver, in circumstances where other possible drivers may have in the residence. However, in the circumstances, the Officer could have observed the Appellant in the vehicle and required her to confirm her identity by producing her driver’s licence, thereby obviating the possibility of fabrication of evidence. The Officer accepted that, when the Appellant was arrested, the relevant offences had ceased and there was nothing to suggest that the offences were likely to be repeated “immediately”.

121. It was not suggested by the Officer that he intended to keep the Appellant detained for a significant time. Rather, his intention was that the Appellant would be granted bail and, in fact, she was released from custody later in the day. That is to say, it was not the Officer’s purposes to ensure that the Appellant be physically prevented from reoffending other than during the short period during which she was in custody. In the circumstances, it is difficult to see how there were reasonable grounds for the Officer to have suspected that it was necessary to arrest the Appellant to prevent a repetition or continuation of any offence. It is equally difficult to see how there were reasonable grounds for the Officer to have suspected that it was necessary to arrest the Appellant to prevent the fabrication of evidence in respect of the offences described above.

122. I have had the advantage of reading in draft form the proposed reasons of Meagher JA. I agree with his Honour that the arrest of the appellant was unlawful and, accordingly, that her claim of false imprisonment is established. I also agree that it must follow that her claims of assault and battery, in respect of the pointing of a firearm and handcuffing, are established.

Damages

123. Against the hypothesis that his verdict might be overturned on appeal and the Appellant might establish any of the three torts alleged of assault, battery and wrongful imprisonment, the primary judge, made findings as to the appropriate damages. I agree with Meagher JA that the size of his Honour’s award for aggravation of the Appellant’s medical condition and future treatment expenses could not be justified. I agree that, while the primary judge may have correctly found that there had been an aggravation of the Appellant’s existing condition as a result of the incident, the evidence was extremely uncertain as to precisely what that existing condition was and as to the extent of any aggravation. It was also uncertain as to the treatment, if any, that might be required to address or manage any aspect of her condition that is referrable to any aggravation. In particular, I agree with Meagher JA that the primary judge failed to take sufficient account of the uncertainties in relation to the aggravation of the appellant’s existing condition.

124. In the result, I agree with Meagher JA that the award of damages for aggravation of the appellant’s condition should properly form part of an overall award of compensation for the three torts and that that award should be $60,000 and that the allowance for future treatment expenses should be reduced to $5,000.

125. The primary judge assessed what must be understood to be exemplary damages at $50,000. Inexplicably, in circumstances where the Appellant was the root cause of the misfortune that befell her, the State did not complain about that assessment. These reasons should not be understood as in any way endorsing of the assessment. However, accepting the sum of $50,000 for exemplary damages, I agree with Meagher JA that there should be judgment for the Appellant in the sum of $115,000. I agree with the orders proposed by his Honour.

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Endnotes

Decision last updated: 15 September 2020