Radford v State of New South Wales

[2009] NSWDC 278

Reported Decision: 10 DCLR (NSW) 34

District Court

CITATION:	Radford v State of New South Wales [2009] NSWDC 278
HEARING DATE(S):	6 August and 23 October 2009
JUDGMENT DATE:	30 October 2009
JURISDICTION:	Civil
JUDGMENT OF:	Levy SC DCJ
DECISION:	1. The defendant’s motion seeking to strike out and dismiss the plaintiff’s statement of claim is dismissed; 2. Plaintiff is granted leave to amend his fifth proposed further amended statement of claim, such pleading to be filed on or before 30 November 2009, 3. The plaintiff is to pay the costs of the defendant’s motion filed on 5 June 2007; 4. The plaintiff is to pay the defendant’s costs of his own motion filed on 26 June 2009 and of his amended motion filed on 9 September 2009.
CATCHWORDS:	LIMITATION – whether a claim limited to aggravated and exemplary damages which excludes a claim for damages for personal injury is caught by a 3 year limitation period as provided by s 18A of the Limitation Act 1969 - PRACTICE AND PROCEDURE – amendment of pleadings – s 65(2)(c) of Civil Procedure Act 2005 – prejudice – whether defendant has established prejudice by reason of unavailability of witnesses to give evidence in defence of claim by plaintiff.
LEGISLATION CITED:	Civil Procedure Act 2002 Crown Proceedings Act 1988 Limitation Act 1969 Uniform Civil Procedure Rules 2005
CASES CITED:	Fleet v RSPCA [2007] NSW SC 1420 Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1 State of New South Wales v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496 Rooke v Barnard [1964] AC 1129
TEXTS CITED:	Fleming, The Law of Torts, 9th ed (1998) Law Book Company, The Laws of Australia, vol 33
PARTIES:	Steven Charles Radford (Plaintiff) State of New South Wales (Defendant)
FILE NUMBER(S):	5411 of 2005
COUNSEL:	Mr J Berwick (Plaintiff) Mr G Bateman (Defendant)
SOLICITORS:	Eduard S Neumann (Plaintiff) IV Knight, Crown Solicitor (Defendant)

JUDGMENT

Nature of the case

1. Three notices of motion arise for determination concerning limitation issues in respect of the plaintiff’s claim that was originally formulated as an action for assault. The plaintiff has raised a novel argument concerning whether a claim for exemplary and aggravated damages is a claim for personal injury.

2. At about 7.00am on 15 December 1999 the plaintiff was arrested at his home by a number of police officers. The plaintiff claims that in those circumstances he was assaulted by being struck, thrown to the floor and thrown against furniture as well as being manhandled by the use of excessive force.

3. On 14 December 2005 the plaintiff filed his own statement of claim in the District Court claiming damages for alleged assault by police officers. The proceedings initially named three individual police officers as defendants purportedly suing them as defendants pursuant to s 5 of the Crown Proceedings Act 1988. Numerous listings then followed for procedural motions and directions, as did successive amendments to the statement of claim. The statement of claim was amended to name the State of New South Wales as the defendant. Ultimately the plaintiff retained his present solicitors who have sought leave to file and proceed upon a proposed fifth further amended statement of claim.

Three notices of motion

First motion – defendant’s strike-out application

4. For present purposes the first motion was filed on behalf of the defendant on 5 June 2007. It seeks to strike out paragraphs 5 and 6(k) of the plaintiff’s statement of claim that was filed on 26 April 2007. The defendant sought the strike-out order by reason of r 14.28 of the Uniform Civil Procedure Rules 2005 on account of the 3 year limitation bar which applies to actions for personal injury : s 18A of the Limitation Act 1969. The hearing of that motion had been delayed over time whilst the plaintiff pursued legal aid and assistance. That motion has in a sense now been overtaken by subsequent events by reason of amendments sought by the plaintiff.

Second motion – plaintiff’s leave application

5. The second notice of motion was filed on behalf of the plaintiff on 26 June 2009. It sought to amend the proceedings and sought leave to file and proceed upon a proposed fourth amended statement of claim by which the plaintiff reformulated his claim. In the reformulation of his claim the plaintiff abandoned the claim for compensatory personal injury damages for pain, suffering and related heads of claim and sought to rely only upon claims for aggravated and exemplary damages. By seeking to proceed in that way the plaintiff argued that as his claim was not a claim for personal injury he was therefore not caught by the 3 year limitation bar of s 18A of the Limitation Act 1969. If that argument were to be successful, it was argued, the defendant’s strike-out motion ought to fail and the plaintiff’s claim could not be struck out.

Argument on the first and second motions

6. On 6 August 2009 I heard argument on the first and second motions and judgment was reserved. Subsequently, the plaintiff gave his position further consideration and he formulated a proposed fifth further amended statement of claim after reflecting on the arguments that proceeded at the hearing of the two motions heard on 6 August 2009.

Third motion – plaintiff’s further application for leave

7. On 9 September 2009 the plaintiff filed a third notice of motion in which he now seeks to further amend his pleadings by relying on a proposed fifth further amended statement of claim. That notice of motion was filed before a reserved judgment was delivered on the issues raised by the first and second motions. The hearing of the third motion was then delayed due to administrative difficulty in obtaining a date suitable to all parties and to the court.

8. The reasoning behind the third motion arose from a consideration of the arguments ventilated at the hearing of the first two motions. As a consequence the plaintiff sought to amend paragraph 11 of his statement of claim. The text and context of the amendments proposed by the second and third motions are respectively identified by underscoring and double underscoring as follows:

“11. The Plaintiff suffered emotional upset, anxiety, distress and humiliation by virtue of both the trespass to the person and the unlawful imprisonment beyond that which could result from the use of any reasonable degree of force by the police.

Damages for Trespass and Unlawful Imprisonment.

12. The plaintiff claims aggravated and exemplary damages. ”

9. In his original statement of claim filed on 14 December 2005 the plaintiff claimed damages for personal injury as follows:

“5. In consequence of the assaults alleged in the preceding paragraph, the plaintiff suffered injuries and continues to suffer disabilities, loss and damage as a consequence of the said injuries.

Particulars of injuries:

(a) facial lacerations and abrasions
(b) injuries to his teeth
(c) fractured nose
(d) facial and cranial haematoma
(e) two black eyes
(f) dislocated jaw
(g) injuries to both ears

Particulars of continuing disabilities:

(h) loss of hearing in left ear
(i) deviated septum
(j) facial scarring
(k) inability to control drooling
(l) psychiatric disabilities including psychosis and schizophrenia

6. And the plaintiff claims damages of $750,000, together with costs and interest.”

10. The plaintiff now seeks to abandon the claim for damages for personal injury and seeks to rely only on the claims for aggravated and exemplary damages.

11. The defendant opposed the plaintiff’s application for amendment as claimed in both the second and the third motions.

Chronology of relevant events

12. It is necessary to briefly review the chronology of the relevant events.

13. On 15 December 1999 a number of police officers attended at the plaintiff’s home in the early hours of the morning to execute a lawful search warrant. The warrant was obtained because the plaintiff was suspected of supplying heroin. A number of persons were also present in the house. During the raid the plaintiff came out of a bedroom. There is a factual dispute as to whether the plaintiff was carrying a broom or mop handle. A scuffle ensued and the plaintiff was then arrested. He claims this occurred with the use of unnecessary and excessive force on the part of the arresting police officers. In short the plaintiff claimed he had been beaten-up by police officers. That assertion was disputed by the defendant. In these events the plaintiff sustained injuries to his head, teeth and face and his psychological well-being has been significantly affected. The defendant concedes that following the events of his arrest the plaintiff was injured and was in need of medical treatment.

14. Following his arrest on 15 December 1999 the plaintiff was charged and remained in custody. Subsequently, in October 2000 he was convicted of drug offences and sentenced to a term of imprisonment. In August 2004 he was released on parole.

15. Whilst he was in custody, on 23 July 2000 the plaintiff made a complaint to the Ombudsman that he had been assaulted by the police who had arrested him. A police internal affairs investigation was then conducted and concluded on 18 July 2001.

16. On 31 August 2001, following a report, the result of the police internal affairs investigation was sent to the plaintiff advising him that his assertions were rejected by the Police Service.

17. On 30 September 2004, following his release from prison, the plaintiff applied for a disability support pension. In November 2004 that application was rejected. He later appealed the rejection of his application.

18. In January 2005 the plaintiff made an FOI request for a video recording taken at the time of his arrest. He did so in contemplation of bringing legal proceedings against the defendant in respect of his assault.

19. In August 2005 the Social Security Review Tribunal rejected the plaintiff’s appeal concerning the refusal to grant him a pension.

20. On 14 December 2005 the plaintiff commenced the present proceedings by filing the original statement of claim. That document was served on the defendant on 16 December 2005.

21. It is apparent from the foregoing chronology that the plaintiff has been substantially occupied with legal matters since the events in question.

Consideration

Consideration of the first motion - strike out

22. The defendant has submitted that since the plaintiff’s claim is for damages for personal injury, by reason of s 18A of the Limitation Act 1969 the plaintiff had 3 years or until 15 December 2002 in which to bring his proceedings. Instead, he filed his statement of claim on 15 December 2005. The defendant has submitted that at the time of filing of the original statement of claim, the plaintiff’s claim was statute barred because of the terms of s 18A which provides:

“18A Personal injury

(1) This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to:


(a) a cause of action arising under the Compensation to Relatives Act 1897 , or

(b) a cause of action that accrued before 1 September 1990, or

(c) a cause of action to which Division 6 applies.


(2) An action on a cause of action to which this section applies is not maintainable if brought after the expiration of a limitation period of 3 years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims.”

23. Without reviewing all the arguments here, because I do not have to decide the point in view of the other motions filed, it appears that absent those other motions the defendant’s argument was soundly based. If the first motion was the only interlocutory matter to be determined, I consider it was likely that the defendant would have made out its entitlement to an order striking out the re-iteration of the plaintiff’s statement of claim that was current at the time of filing of the first notice of motion.

24. However, in the interim, the plaintiff has obviously realised that his claim was vulnerable to being struck out and this has led him to ultimately reformulate his claim by purporting to abandon his claim for damages for personal injury and to rely only on a claim for exemplary and aggravated damages as distinct from the earlier claim for damages for personal injury. This raises for consideration the issues to be determined in the second and third motions.

Consideration of second and third motions – leave to amend the pleadings

25. Although the plaintiff’s most recent amended application to amend his pleadings arose late and only after the hearing of his application for leave to file a fourth further amended statement of claim, I consider that the interests of justice requires that he be given leave to argue the merits of whether or not he should be entitled to pursue leave to file a fifth proposed further amended statement of claim. As I have taken this view I have determined that I should consider the arguments raised by the second and third motions as if they had been raised in the same motion, except as to the question of costs.

26. The starting point of the analysis is to observe that the plaintiff is, if he so wishes, entitled to abandon his original claim for compensatory damages that arises in connection with the alleged assault.

27. In my view the plaintiff, as a competent adult until shown otherwise, is entitled to limit the ambit of any damages claim he may have so as to only claim exemplary and aggravated damages and to abandon his claim for compensatory damages for the alleged assault. That was the effect of the proposed fourth further amended re-iteration of his statement of claim. The fifth re-iteration seeks to rely on what has been submitted to be the naturally expected flow-on effects of the consequential human emotions of upset, anxiety, distress and humiliation due to the events complained of by the plaintiff. Those emotions, it is argued, reasonably and unsurprisingly, would have ordinarily followed an assault of the kind alleged by the plaintiff. It is a matter entirely for the plaintiff as to whether he wishes to abandon the claim for compensatory damages for an alleged assault.

28. Conceptually, exemplary and aggravated damages are different in character to compensatory damages for assault, the former not being dependent for their viability on the existence of the latter. In ordinary circumstances, where the plaintiff was not confronted with a limitation bar, he would be entitled to follow the course he proposes. However in these circumstances he requires leave where the amendment adds a claim for damages of a different character to the damages that were originally claimed and are now abandoned.

29. There are two emergent issues that require close attention. The first is the question of whether or not a claim for exemplary and aggravated damages, as sought in the amendment, grounded upon an antecedent assault, amounts to an action for damages for personal injury. If not, the second question becomes whether the defendant would be prejudiced if the amendment sought by the plaintiff were to be granted. Consequent upon the determination of these issues the question of costs arises for consideration.

30. Section 65 of the Civil Procedure Act 2005 is relevant to the consideration of the question of whether leave to amend should be granted. Section 65 provides:

“65 Amendment of originating process after expiry of limitation period

(1) This section applies to any proceedings commenced before the expiration of any relevant limitation period for the commencement of the proceedings.

(2) At any time after the expiration of the relevant limitation period, the plaintiff in any such proceedings may, with the leave of the court under section 64 (1) (b), amend the originating process so as:


(a) to enable the plaintiff to maintain the proceedings in a capacity in which he or she has, since the proceedings were commenced, become entitled to bring and maintain the proceedings, or

(b) to correct a mistake in the name of a party to the proceedings, whether or not the effect of the amendment is to substitute a new party, being a mistake that, in the court’s opinion, is neither misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party, or

(c) to add or substitute a new cause of action, together with a claim for relief on the new cause of action, being a new cause of action that, in the court’s opinion, arises from the same (or substantially the same) facts as those giving rise to an existing cause of action and claim for relief set out in the originating process.


(3) Unless the court otherwise orders, an amendment made under this section is taken to have had effect as from the date on which the proceedings were commenced.

(4) This section does not limit the powers of the court under section 64.

(5) This section has effect despite anything to the contrary in the Limitation Act 1969.

(6) In this section, originating process, in relation to any proceedings, includes any pleading subsequently filed in the proceedings.”

Whether a claim for exemplary and aggravated damages is a claim for personal injury

31. The plaintiff argues that there is a distinction between a claim for aggravated and exemplary damages and damages for personal injury because the former category relates to manifestations of human emotion rather than constituting a personal injury, and as such they are, it is argued, not caught by the definition of personal injury within the inclusive but non-exhaustive meaning of s 11 of the Limitation Act 1969 which provides :

“ s 11 …
In this Act, unless the context or subject matter otherwise indicates requires:

…

Personal injury includes any disease and any impairment of the physical or mental condition of a person.”

32. The plaintiff submits that justification for his position is aptly demonstrated by the following statement in the heading taken from Laws of Australia, vol 33 Torts, Law Book Company, [33.8.440]:

“Damages awarded for assault in the absence of personal injury or nervous shock arising from it will be aggravated or exemplary damages. “

33. The observation about that heading is that it is only a heading and not necessarily an authoritative statement.

34. The plaintiff also relies upon a statement by the High Court of Australia in Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1 at [11], p 8 where reference was made to a discussion in Rooke v Barnard [1964] AC 1129 concerning a distinction between aggravated and exemplary damages and in particular, the conceptualisation that aggravated damages are awardable for injury to feelings caused by insult, humiliation and the like whereas exemplary damages go beyond compensation and are punitive and aimed at deterring similar conduct in the future and as proof of detestation of conduct concerned.

35. There can be no doubt that in the circumstances of this case the alleged conduct of the police officers is capable of supporting a claim for aggravated and exemplary damages : State ofNew South Wales v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496.

36. Insofar as it was felt necessary to do so, the plaintiff pointed to a practical illustration in another case where a claim for non-compensatory damages for battery, trespass, search and seizure which had not been struck out on account of the fact that those proceedings had been commenced after a 3 year limitation period had elapsed and before a 6 year limitation period had expired : Fleet v RSPCA [2007] NSW SC 1420 at [38] per Harrison AsJ.

37. The plaintiff draws upon a number of legal texts to emphasise the legitimacy of claiming damages for trespass without claiming damages for personal injury. These references are typified by the reference to Fleming, The Law of Torts, 9th ed (1998) where at page 22 the following statement appears:

“The principal substantive consequences flowing from the distinction between wrongs redressable by trespass and case were twofold. Trespass was actionable per se, that it is, without proof of actual damage, when damage was the gist of case.”

38. It is pertinent to also observe the following statement in Fleming, The Law of Torts, 9th ed (1998) at page 216;

“Actual damage or injury is a necessary element (“the gist”) of tort liability for negligence. Unlike assault and battery or defamation, where violation of a mere dignitary interest like personal integrity or reputation is deemed sufficiently heinous to warrant redress, negligence is not actionable unless and until it results in damage to the plaintiff”
(Footnotes not reproduced)

39. The plaintiff has argued that infringement of his dignitary interest does not require the existence of a personal injury claim to underpin his proposed amended claim. A difficulty with that argument here is that in this case the defendant has conceded the occurrence of a personal injury. The defendant argues that because personal injury has occurred, it cannot be ignored as the foundation for the plaintiff’s claim for aggravated and exemplary damages. However, the plaintiff answers that argument by pointing out that he has abandoned his claim for compensatory damages for personal injury and instead seeks to pursue another remedy based on a claim for injury to a dignitary interest which attracts aggravated and exemplary damages because the relevant conduct, if proven, would call for the censure that the remedy of such damages can provide.

40. Novel legal formulations such as this are not likely to be finally resolved in this court and I must apply what I understand to be the applicable legal principles to the facts of the case calling for decision. My task is not to finally determine the merits of the issues raised between the parties but rather, to identify whether the plaintiff has demonstrated a threshold or arguable case that requires determination on the merits and for which he should be granted leave to amend his statement of claim in the manner that is sought. I have come to the view that he has done so.

41. I am persuaded that the damages which the plaintiff now seeks to pursue are not strictly damages for personal injury. As such, the plaintiff contends that the claim is not caught by the provisions of s 18A of the Limitation Act 1969 which requires that proceedings for personal injury be commenced within 3 years of the occurrence of injury. I accept the plaintiff’s submission in this regard. In my view the plaintiff has legitimately commenced his proceedings within 6 years of the event complained.

42. If I be wrong in coming to that view, having regard to the chronology of events I nevertheless consider that this is an appropriate case in which to allow the amendment pursuant to s 65(2)(c) of the Civil Procedure Act 2005.

43. Having come to these views it remains to consider the defendant’s claim that if the amendments sought were granted, it would be prejudiced in the defence of such a reformulated claim.

The issue of prejudice

44. The defendant claims that if the plaintiff were to be given leave to amend then irremediable prejudice would arise concerning the defence of the claim. In support of that position the defendant read two affidavits of Lisa Munro, solicitor, each of which was sworn on 5 August 2009. These affidavits set out the results of her enquiries concerning the present circumstances of nine police officers who it is said were somehow involved with the allegations made in paragraph 2 of the plaintiff’s amended statement of claim even though the plaintiff only named three such officers in his original statement of claim.

45. The affidavit evidence discloses that one of those nine police officers was discharged from the NSW Police Service on grounds of medical unfitness on 12 November 2004, another was similarly discharged on 6 August 2005, and another was discharged on the same grounds on 6 March 2009. This evidence also discloses that two other police officers have been absent on continuous leave and claiming workers compensation from 20 October 2006 in one case, and from 6 January 2009 in another. The evidence also discloses that one of the nine police officers had died on 17 July 2007.

46. In the case of one of these former police officers, a general practitioner has provided a medical certificate stating that the former officer would be likely to have panic attacks in the courtroom if required to give evidence. In my view, without further explanatory evidence I do not consider that to be a matter that would cause prejudice as there are procedures that a court could readily adopt in order to accommodate a problem of that kind and to alleviate or minimise the prospect of any courtroom generated panic attacks by permitting the evidence to be given, if it is required, in a less formal setting than a courtroom, including by video link if necessary, in order to serve the overriding interests of justice.

47. In the case of another former police officer, a treating psychologist has expressed the view that the former officer is unfit to give evidence due to post-traumatic stress disorder and major depression. In my view such a certificate is not definitive on the issue and in any event it has not been shown that the former officer concerned is an essential witness to the defence of the plaintiff’s claim.

48. In the case of another former police officer, a short letter has been tendered from a treating general practitioner stating that the former officer is unfit to give evidence in this matter on unspecified medical grounds. That evidence is not probative of prejudice.

49. In the case of another former police officer, a consultant treating psychiatrist has stated that as at August 2008 the former officer concerned has a psychiatric condition consisting of severe post-traumatic stress disorder and a significant depression such that if he were to be directed to give evidence, it was felt that this would significantly and adversely affect his emotional condition. That view was supplemented by a letter dated 20 July 2009 in which the same psychiatrist stated that the former officer remains significantly unwell and remains unfit to give evidence, having significant difficulties with matters concerning concentration, emotional regulation and depression.

50. In respect of another former police officer, a treating general practitioner has circled a provision for a “No” response in a facsimile that was sent to him by the defendant’s solicitor in this case. In that facsimile the general practitioner was asked to indicate the former officer’s present state of unfitness to give evidence. The requested response was for either a yes or no answer. He gave a “No” answer but he did not state any reasons for that view. That evidence is of very limited probative value.

51. I do not dismiss or entirely discount the medical certificates referred to above, however the matters raised by these certificates have to be balanced against the overriding interests to achieve justice between all of the parties. The interests of witnesses are a secondary consideration in such circumstances and where necessary, court rules and procedures provide a certain flexibility to alleviate any discomfort on the part of witnesses called to give evidence.

52. I have also had regard to Exhibit “1” that was tendered by the defendant on the hearing of these motions. This exhibit comprises a letter from the NSW Police Service which refers to the fact that there had been a police investigation of the incident complained of by the plaintiff. There was also reference to the detail of the evidence having been given at the plaintiff’s trial. That letter indicates that the plaintiff’s complaint to the Police Service concerning matters to do with his arrest and which are also the subject of these proceedings had been investigated by the Police Service and that such investigation had resulted in the plaintiff’s complaint being internally considered and rejected by the Police Service.

53. The foregoing material suggests that there is a body of records and material which could be marshalled by the defendant for the purposes of use in defending the plaintiff’s claim. On this application, on the evidence presented, I am not required to undertake an evaluation of whether the defendant has been deprived of the opportunity to obtain access to admissible evidence in order to mount a defence. Instead, the claim of prejudice is to an extent based on considerations concerning the comfort of potential witnesses. On a consideration of the material presented I do not consider the defendant to have demonstrated that it has been prejudiced in the relevant sense.

54. Whilst it is true to say that when witnesses are ill or when they have died, this presents litigants with particular forensic difficulties and problems, I do not regard the evidence adduced by the defendant on these motions demonstrates that in this case prejudice will occur if leave were given for the plaintiff to amend his claim as is sought.

55. I therefore grant the plaintiff leave to amend his statement of claim in the terms of his proposed fifth amended statement of claim.

Costs

56. The first motion has been overtaken by events and in a sense it is not longer relevant. However, it was the action of the defendant in taking out that motion that ultimately led the plaintiff to pursue the course he has taken, and which has led to him being granted leave to proceed. In the second and third motions it was the plaintiff who has sought the procedural indulgence. Whilst there is no inflexible rule that requires the party who is seeking an indulgence to pay the costs of obtaining an indulgence, in this instance, because of the delays involved in bringing the proceedings and the applications, I consider that to be the appropriate order in respect of all three motions.

Disposition

57. In the result I consider that the defendant’s strike out motion should be dismissed. I consider that the plaintiff should be given leave to proceed on his proposed fifth further amended statement of claim and I consider that the plaintiff should bear the costs of all three motions.

Orders

58. I make the following orders:

(a) The defendant’s amended notice of motion filed on 5 June 2007 is dismissed;

(b) The plaintiff is to pay the defendant’s costs of the dismissed motion;

(c) The plaintiff is granted leave to file and proceed upon the fifth further amended statement of claim, a draft of which is annexed to the affidavit of Eduard Salomon Neuman sworn on 7 September 2009, such pleading to be formally filed on or before 30 November 2009;

(d) The plaintiff is to pay the defendant’s costs of his own motion filed on 26 June 2009 as well as the costs of his amended motion filed on 9 September 2009.