State of New South Wales v Ibbett - [2005] NSWCA 445

No judgment structure available for this case.

Reported Decision:
65 NSWLR 168

Court of Appeal

CITATION:
State of NSW v Ibbett [2005] NSWCA 445
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S):
14 October 2005

JUDGMENT DATE:

13 December 2005

JUDGMENT OF:
Spigelman CJ at 1; Ipp JA at 106; Basten JA at 184

DECISION:
(1) Appeal dismissed; (2) Allow the cross-appeal in part and vary the orders in the District Court so as to; (a) set aside orders 1 and 2; (b) in relation to the assault, add an additional amount of $10,000 on account aggravated damages; and; (c) set aside the awards of exemplary damages and award in lieu thereof; (i) an amount of $25,000 with respect to the assault, and; (ii) an amount of $20,000 with respect to the trespass; (3) Direct that judgment be entered for the Plaintiff in the sum of $105,000; (4) Order the Appellant to pay the Respondent’s costs of the appeal and cross-appeal

CATCHWORDS:
Damages – - assault and trespass committed by police officers - exemplary damages – aggravated damages - whether award of exemplary damages and/or aggravated damages against the State appropriate – whether award precluded by s21 of Civil Liability Act (2002) (NSW) – whether s3B(1)(a) operates to exclude the application of the Act – whether the proceedings were with respect to ‘an intentional act done with intent to cause injury’ - consideration of principle of coherence

LEGISLATION CITED:
Civil Liability Act 2002 (NSW)
Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW)
Constitution Act 1902 (NSW)
County Court (Jurisdiction) Act 1972 (Vic)
Law Reform (Vicarious Liability) Act 1983 (NSW)
Magistrates’ Court Act 1971 (Vic)
Mental Health Act 1990 (NSW)
Police Act 1990 (NSW)

CASES CITED:
Adams v Kennedy (2000) 49 NSWLR 78
Ali v Hartley Poynton Ltd [2002] VSC 113
Amalgamated Television Services Pty Ltd v Marsden (No. 2) (2003) 57 NSWLR 338
Appleton v Garrett [1996] P.I.Q.R 1
Avonhouse v Hornsby Shire Council (1998) 44 NSWLR 1
Backwell v AAA [1997] 1 VR 182
Baltic Shipping Co v Dillon (1993) 176 CLR 344
Brodie v Singleton Shire Council (2001) 206 CLR 512
Coloca v BP Australia Pty Ltd [1992] 2 VR 441
Commonwealth v Murray [1988] Aust Torts Reps 80,207
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1
Digital Pulse Pty Ltd v Harris (2002) 166 FLR 421
Douglas v Hello! Ltd (No. 3) [2005] 3 WLR 881
Fontin v Katapodis (1962) 108 CLR 177
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Graham v Robinson [1992] 1 VR 279
Gray v Motor Accident Commission (1998) 196 CLR 1
Harris v Digital Pulse Pty Ltd (2003) 56 NSWLR 298
Hill v Chief Constable of West Yorkshire [1989] AC 53
Hill v Van Erp (1995-97) 188 CLR 159
Houda v NSW [2005] NSWSC 1053
Hunter Area Health Service v Marchlewski (2000) 51 NSWLR 268
Hunter Area Health Service v Presland [2005] NSWCA 33
James v Hill [2004] NSWCA 301
Johnstone v Stewart [1968] SASR 142
Kuddus v Chief Constable of Leicestershire Constabulary [2002] 2 AC 122
Lamb v Cotogno (1987) 164 CLR 1
Lee v Kennedy [2000] NSWCA 153
Lippl v Haines (1989) 18 NSWLR 620
Midalco Pty Ltd v Rabenalt [1989] VR 461
Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643
Neville v Halliday [1983] 2 VR 553
Plenty v Dillon (1991) 171 CLR 635
Port Stephens Shire Council v Tellamist Pty Ltd [2004] NSWCA 353; 235 LGERA 98
R v O’Neil (2001) 122 A Crim R 510
Rookes v Barnard [1964] AC 1129
S v The Attorney-General [2003] NZCA 149
Schumann v Abbot & Davis [1961] SASR 149
Shattock v Devlin [1990] 2 NSWLR 88
State of New South Wales v Lepore (2003) 212 CLR 511
State of New South Wales v Paige (2002) 60 NSWLR 371
State of New South Wales v Riley (2003) 57 NSWLR 496
Sullivan v Moody (2001) 207 CLR 562
Tame v New South Wales (2002) 211 CLR 317
TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333
Thompson v Commissioner of Police [1998] QB 498
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118
Vezitis v McGeechan [1974] 1 NSWLR 718
Vignoli v Sydney Harbour Casino (2000) Aust Torts Reps 81-541
Wilkes v Wood (1763) 98 ER 489
Williams v Milotin (1957) 97 CLR 465
Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71
X v Bedfordshire County Council [1995] 2 AC 633
XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448

PARTIES:
State of New South Wales (Appellant)
Dorothy Isabel Ibbett (Respondent)

FILE NUMBER(S):
CA 41119/04

COUNSEL:
J E Maconachie QC/K. Crysustomou (Claimant)
J J Garnsey SC/B E Kinsella (Opponent)
K M Richardson (Intervening for Attorney-General (NSW))

SOLICITORS:
I V Knight, Crown Solicitor (Claimant)
James Fuggle (Opponent)
H El Hage, Crown Solicitor's Office (Intervening for Attorney-General (NSW))

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 329/02

LOWER COURT JUDICIAL OFFICER:
Phegan DCJ

CA 41119/04
DC 329/02

SPIGELMAN CJ
IPP JA
BASTEN JA
13 December 2005

STATE OF NEW SOUTH WALES v DOROTHY ISABEL IBBETT

This is an appeal from a decision of the District Court awarding aggravated and exemplary damages against the State of NSW and in favour of Mrs Ibbett in relation to the unlawful conduct of police officers.

At about 2am in the morning, the son of Mrs Ibbett was being pursued by two police officers who suspected the son of having committed a traffic offence. The son drove into Mrs Ibbett’s garage and closed the garage door. One of the police officers dived under the closing door and drew his revolver, pointed it in the direction of the son and sought to arrest him. Mrs Ibbett heard the commotion and entered the garage through a side door and told the officer to leave. The police officer pointed the revolver at Mrs Ibbett briefly, demanding that the door be opened for his fellow officer, before turning the gun back on the son. The police officers arrested the son and conducted a strip search on him in the vicinity of Mrs Ibbett.

Mrs Ibbett was successful in her action for trespass and assault. The trial judge awarded $15,000 in general damages for the assault and $10,000 in exemplary damages. In relation to the trespass, the trial judge awarded $20,000 in aggravated and $20,000 in exemplary damages.

The primary issue for determination by the Court of Appeal was whether the award of exemplary damages was precluded by the Civil Liability Act 2002 (NSW) and whether, in any event, the award was justified in the circumstances.

Held in relation to the Civil Liability Act:

Per Spigelman CJ (Basten JA agreeing):

1. Section 21 of the Civil Liability Act does not preclude the award of exemplary damages in this case: at [2].

2. The proceedings were with respect to “an intentional act…done with intent to cause injury” within s3B(1)(a) and therefore s21 is excluded: at [5]–[12].

3. In the alternative, this was not an action “where the act or omission that caused the injury…was negligence”. While it is possible to succeed in trespass to the person on the basis of negligent conduct, the case was not run on that basis: at [18]–[19].

The definition of ‘injury’ in s11 should be applied to the term injury in s 3B(1)(a). The word ‘injury’ is wide enough to encompass anxiety and distress. Consequently, Section 3B(1)(a) operates to exclude the application of the Act, including s21: at [120]–[130].

Held in relation to exemplary damages for assault:

Per Spigelman CJ:

1. Turning the weapon on Mrs Ibbett was outrageous conduct justifying a finding of a contumelious disregard of Mrs Ibbett’s rights and was deserving of the censure of the Court. This was one of the rare cases in which an award of exemplary damages was appropriate: at [28]

2. The findings by the trial judge that the police officer acted in a “reactive and impetuous way” in intentionally causing Mrs Ibbett fear and apprehension of harm supported a finding of conscious wrongdoing: at [33].

3. Even if the officer was not “conscious” of his wrongdoing, this was still an appropriate case for an award of exemplary damages. Subjective advertence to or knowledge of actual wrongdoing is not essential: at [34]–[52]

Gray v Motor Accident Commission (1998) 196 CLR 1 and Lamb v Cotogno (1987) 164 CLR 1 applied.

New South Wales v Riley (2003) 57 NSWLR 496 followed.

4. The amount of $25,000 in damages including $10,000 in exemplary damages for the assault was not sufficient to serve the objectives of punishment and deterrence or to manifest the Court’s disapproval of the conduct. The award of exemplary damages should be increased to $25,000: at [78]–[80]

Adams v Kennedy (2000) 49 NSWLR 78, Lee v Kennedy (2000) NSWCA 153 and Vignoli v Sydney Harbour Casino (2000) Aust Torts Reps ¶81-541 referred to.

Per Ipp JA (dissenting in relation to quantum)

1. Whether vicarious liability will support a claim for exemplary damages is not yet finally settled in Australia: at [139].

2. The dismissive attitude that the offending officer had towards the ‘re-education program’ could not properly be used to bolster the justification for an award of exemplary damages: at [148].

XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australasia) Pty Ltd (1985) 155 CLR 448; Ali v Hartley Poynton Ltd [ 2002] VSC 113; S v The Attorney-General [2003] NZCA 149 and Kuddus v Chief Constable of Leicestershire Constabulary [2002] 2 AC 122 referred to.

3. It is wrong in principle to increase exemplary damages on the ground that other persons (not directly involved in the wrongful conduct) need to learn a lesson in circumstances where the State is vicariously liable for the conduct of identified police officers and no-none else: at [159].

4. It could never be appropriate and would be wrong in principle to determine the quantum of exemplary damages by having regard, globally, to conduct relating to a set of different causes of action: at [156].

Adams v Kennedy

5. Lamb v Cotogno does not support the proposition that ‘the intention of exemplary damages is that they will cause a ‘smart’ or ‘sting’ and in any event it is difficult to comprehend how an increase in the award from $10,000 to $25,000 would cause a sting, particularly if regard is had to the State’s annual budget: at [161] – [162].

Lamb v Cotogno

XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australasia) Pty Ltd

Commonwealth v Murray

Backwell v AAA

Per Basten JA:

1. An award of exemplary damages, being designed to punish the defendant and to deter him or her and others from such conduct, is not concerned with any actual effect on the plaintiff or the extent of any injury: at [232].

2. The identification of the conduct by such epithets as contumelious, insulting, insolent, outrageous, or high-handed fastens on, as a critical element, the state of mind of the tortfeasor: at [233].

3. The phrase “conscious wrong-doing” does not require consciousness of each of the elements of a crime or tort, nor does disregard of a person’s “rights” require identification of a particular legal right: at [234].

4. The quality of the conduct will depend on circumstances including the nature of the power being exercised by the tortfeasor and the seriousness of the effect on the plaintiff. The conferral of special power on a police officer is subject to jealously enforced conditions, designed to ensure that basic human rights and freedoms are not compromised beyond that which is demonstrably justifiable in the public interest: at [235].

5. The intention of exemplary damages is that they will cause a “smart or sting” and should not therefore be for an amount which is nominal or insignificant: at [236].

6. While there was no specific finding as to the state of mind of the offending police officer, there was at least implicitly a sufficient factual basis for an award of exemplary damages for the assault: at [244].

7. There is merit in making a global award for exemplary damages: at [280].

Lamb v Cotogno (1987) 164 CLR 1; Adams v Kennedy (2000) 49 NSWLR 78, Lee v Kennedy (2000) NSWCA 153; New South Wales v Riley (2003) 57 NSWLR 496 and Port Stephens Shire Council v Tellamist Pty Ltd (2004) 235 LGERA 98 discussed.

Held in relation to exemplary damages for trespass to land:

Per Spigelman CJ:

1. An occupier of land has a right to expect that his or her guests will not be assaulted by policemen who seek to inappropriately arrest one of them at gunpoint, strip search him and then search his vehicle on the premises. The conduct of the police did not just show a disregard for the rights of the son, it also showed a disregard of her right, as owner of the property, to have her guests undisturbed: at [58].

2. While there was no basis for a finding of consciousness of wrongdoing, the conduct was highhanded and deserving of condemnation of the Court: at [59].

3. The award of $20,000 is an appropriate amount to serve as a deterrent and to mark the disapproval of the Court: at [102].

Per Ipp JA:

1. A property owner has no right to claim damages because his or her guests have been disturbed.

2. The finding by the trial judge that the issues relating to the lawfulness of the entry were ‘complex’ militates against a finding of reckless wrongdoing: at [177].

3. The award for exemplary damages for trespass to land should be set aside: at [175] – [183].

Per Basten JA (otherwise agreeing with Spigelman CJ):

1. The findings made justify the conclusion that when the police officer dived under the garage door, he was indifferent as to whether he had lawful authority for remaining on the plaintiff’s land and he acted in a manner which showed palpable disregard for her rights as a proprietor. There was therefore a sufficient basis for the award of exemplary damages for the trespass to land: at [257].

2. There is merit in making a global award of exemplary damages: at [276].

Adams v Kennedy (2000) 49 NSWLR 78 discussed.

Held in relation to aggravated damages for assault:

The evidence of the offending officer in relation to the ’re-education programme’ was particularly offensive. The ‘programme’ was perfunctory in the extreme: at [75].

The conduct of the offending officer in assaulting Mrs Ibbett went ‘beyond ordinary human fallibility’. The amount awarded for general damages ($15,000) was towards the middle of the range. An additional amount of $10,000 on account of aggravated damages should be awarded: at [136].

State of New South Wales v Riley (2003)

57 NSWLR 496 followed.

Per Basten JA:

1. It is clear that the trial judge intended to include, as part of the consequences of the unlawful entry, conduct of police officers whilst on the premises, which included pointing of the revolver at the Plaintiff. Because that was specifically the act of a particular officer, an award should have been made in respect of that specific element of misconduct, given the seriousness with which the trial judge viewed the circumstances: at [273]

2. There should be an amount of $10,000 awarded for aggravated damages in respect of the assault: at [284].

Held in relation to aggravated damages for trespass to land:

Per Spigelman CJ (otherwise agreeing with Basten JA):

1. The indignity and insult suffered by Mrs Ibbett was significantly affected by the way her guest, being her son resident on the premises, was treated: at [96].

2. There were additional factors such as one officer’s ‘intemperate and unprovoked outburst to the plaintiff about the fate facing her son as a consequence of his drug abuse’ and the reaction by Mrs Ibbett to the evidence of the police officers in relation to the ‘re-education programme’: at [97].

3. The amount of $20,000 awarded by his honour was an appropriate amount to serve as a deterrent and to mark the disapproval of the Court.

Lamb v Cotogno (1987) 164 CLR 1 applied. Plenty v Dillon (1991) 171 CLR 635 and TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 referred to.

Per Ipp JA (dissenting):

1. There exists no right sounding in damages to have one’s guests undisturbed: at [168]–[173].

2. The errors identified by Basten JA should lead to the award of aggravated damages being set aside: at [174].

The trial judge erred in taking into account the conduct of the police officers in the course of the subsequent prosecution of charges against her son and the plaintiff’s reaction to their evidence of inadequate counselling: at [262] – [264].

CA 41119/04
DC 329/02

SPIGELMAN CJ
IPP JA
BASTEN JA
13 December 2005

STATE OF NEW SOUTH WALES v DOROTHY ISABEL IBBETT

Judgment

1 SPIGELMAN: The facts and statutory provisions appear in the judgment of Basten JA which I have read in draft.

Can Exemplary Damages be Awarded?

2 I agree with his Honour’s conclusion that s21 of the Civil Liability Act 2002 (“the Act”) does not operate in the present case. I wish to express my own reasons for reaching that conclusion.

3 The relevant statutory provisions are:

Part 1

3B(1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows:

(a) civil liability in respect of an intentional act that is done with intent to cause injury or death or that is sexual assault or other sexual misconduct – the whole Act except Part 7 (Self-defence and recovery by criminals) in respect of civil liability in respect of an intentional act that is done with intent to cause injury or death.

Part 2

Definitions

In this Part:

injury

(a) pre-natal injury,

(b) impairment of a person’s physical or mental condition,

(c) disease.

personal injury damages

…

21 In an action for the award of personal injury damages where the act or omission that caused the injury or death was negligence, a court cannot award exemplary or punitive damages or damages in the nature of aggravated damages.”

4 Three legal issues have arisen. The Appellant must succeed on each. In my opinion, it fails on two and I do not find it necessary to decide the third.

2 Are these proceedings “an action … where the act or omission that caused the injury … was negligence” within s21?

5 The word “injury” is defined to mean “personal injury” for purposes of Part 2, a Part which is headed “Personal injury damages”. I can see no reason to apply that definition to the word “injury” appearing in s3B(1)(a) for five reasons.

6 First, the respective Parts of the Act deal with distinct matters and nothing suggests that terminology is intended to bear the same meaning wherever deployed.

7 Secondly, each Part of the Act has its own definition section with Part 1, in which s3B appears, containing generally applicable definitions in s3, e.g. of the word “damages”.

8 Thirdly, the definition sections in each Part contain repetition of the same definitions, indicating that each Part is to be regarded as discrete. (See, e.g. the definitions of “personal injury” in s5 for Part 1A, of “injury” in s11 for Part 2, of “personal injury” in s27 for Part 3 and in s51 for Part 7; and also the definition of “negligence” in s5 for Part 1A and in s27 for Part 3.)

9 Fourthly, when Parliament intended to pick up a definition section from one Part and apply it to another, it did so expressly, perhaps most forcefully for present purposes two subparagraphs later in s3B(1)(c) which excluded:

“(c) civil liability relating to an award of personal injury damages (within the meaning of Part 2) where the injury or death concerned resulted from smoking or other use of tobacco products …”.

10 Fifthly, there is a direct contrast between the use of the word “injury” in s3B(1)(a) and the invocation of the definition of “personal injury” in s3B(1)(c).

11 I can see no reason why the word “injury” in s3B(1)(a) should not be given its natural and ordinary meaning. That meaning would encompass the harm occasioned by an apprehension of physical violence. (See also Houda v NSW [2005] NSWSC 1053 at [338]-[346] per Cooper AJ.)

12 In my opinion, in these proceedings s3B(1)(a) is satisfied in the case of the assault because there was an intention to cause injury.

13 With respect to the finding by Phegan DCJ on the assault, the critical factor was the combined effect of Constable Pickavance pointing his gun at Mrs Ibbett and saying, “Open the bloody door and let my mate in”. The Constable pointed his gun at the victim with the expressed objective of coercing her into taking a particular course of action.

14 As his Honour held:

“The combination of that action and the accompanying words were more than sufficient to satisfy the requirements of immediate apprehension of harm on the part of the plaintiff intentionally caused by Pickavance and therefore amounted to an assault.”

15 To the same effect was his Honour’s reiteration of this conclusion in the context of assessing damages:

“[T]he action of Pickavance in turning his handgun on the plaintiff and ordering her to open the door in a voice described by the plaintiff as ‘screaming loudly, very loudly’ was calculated to cause fear and apprehension particularly in a woman of 69 years of age confronted as she was by a stranger in ordinary street clothes behaving in a highly agitated and threatening manner.”

16 These findings of fact that Constable Pickavance acted with an intention to cause the relevant injury, i.e. an apprehension of physical violence, were open to his Honour, indeed, in my opinion, they were correct. Constable Pickavance did not merely point the gun at Mrs Ibbett in some kind of reflex action. He pointed the gun at her and demanded she do something whilst under the threat. The conclusion which his Honour drew that he intended to cause injury in the form of an apprehension of physical violence was justified.

17 Accordingly, s3B(1)(a) applies to exclude s21.

18 Alternatively, this ground of appeal fails as the proceedings do not answer the description in s21 of “an action … where the act or omission that caused the injury … was negligence”. The present proceedings did not involve negligence.

19 The Appellant invoked the line of authority that it is possible to succeed in trespass to the person on the basis of negligent conduct. (See Williams v Milotin (1957) 97 CLR 465; NSW v Lepore (2003) 212 CLR 511 at [270].) However, this case was conducted, and conducted only, on the basis that the conduct of Constable Pickavance was intentional. (Cf Gray v Motor Accident Commission (1998) 196 CLR 1 at [29].) The Appellant accepted that there was no pleading of negligence but submitted that one of the particulars of damage could only be awarded in a case of negligence. Whatever the original pleading may have implied, that was not the case run. The Appellant could not point to any part of the transcript of evidence, nor to any submissions at the trial, which suggested that a case of negligence was propounded below. For this alternative reason, s21 does not apply.

20 The third issue identified in par [4] above arises if the word injury, wherever appearing in the Act, should be understood as a reference to “personal injury”. Are the present proceedings “an action for the award of personal injury damages” within the meaning of s21?

21 The concept of “personal injury” is reasonably well established in Australian legal practice. It has rarely, if ever, been used to refer to harm to reputation, deprivation of liberty, or to injured feelings such as outrage, humiliation, indignity and insult or to mental suffering, such as grief, anxiety and distress, not involving a recognised psychological condition. (See e.g. Baltic Shipping Co v Dillon (1993) 176 CLR 344 at 359-363.) An award for the emotional harm involved in apprehension of personal violence would not generally be regarded as an award for “personal injury damages”.

22 The issue is whether such harm should be so regarded by reason of the reference, in the inclusive definition of “injury” in s11, to “impairment of a person’s … mental condition”. I incline to the view that the emotional reaction, often called “injured feelings”, arising from the apprehension of physical violence and the accompanying sense of outrage or indignation is not an “impairment of a mental condition”. However, the state of the law on mental harm at the time the Act was passed would need to be carefully reviewed before reaching a concluded view. The submissions did not undertake that task. This issue need not be determined.

23 The appeal based on the applicability of s21 of the Act should be dismissed.

Exemplary Damages for Assault

24 In the context of considering exemplary damages for the assault Phegan DCJ said:

“In turning a gun, loaded as it was, on an elderly woman who was doing no more than exercising her lawful rights over her own property and whose demeanour offered no real threat to Senior Constable Pickavance, his action was excessive and totally out of proportion to the circumstances confronting him.”

25 This finding followed on his Honour’s earlier findings of fact that the Constable’s behaviour at the time was both “erratic and intemperate”, that he intentionally caused the apprehension of harm on the part of Mrs Ibbett by pointing the handgun at her and demanding that she engage in a course of action: that this occurred while he was behaving in a highly agitated and threatening manner and screaming loudly and that he did not identify himself as a police officer. The conduct was directed at an elderly woman who had been woken at about 1.45am. It occurred in an overall context where, on the police evidence, the police officer was engaged, and engaged only, in pursuing a person who had exceeded the speed limit and sought to evade pursuit, which offence the officer thought justified him both invading private property and drawing his weapon for the purpose of apprehending the offender.

26 His Honour did not accept the police evidence. Warren Ibbett, the Respondent’s son, had a criminal record. The two officers were serving in the Regional Anti Theft Unit. Their brief had a photo of Warren Ibbett and a description of his van. The trial judge found that the police deliberately followed him after they saw his van pass them. He found that they intended to arrest him and search him and his van on suspicion.

27 The facts as found by his Honour could not justify the police conduct. Indeed, there is no appeal to this Court from Phegan DCJ’s findings that there was both an assault of Mrs Ibbett and a trespass to her land. Nor is there an appeal from his Honour’s award of general damages in either respect. This Court must proceed on the basis that there was both an assault and a trespass which could not be justified by reason of the fact that a police officer was acting in the discharge of his duties.

28 Turning the weapon on Mrs Ibbett was, in my opinion, outrageous conduct both in itself and in its context. It justifies his Honour’s finding of a contumelious disregard of the plaintiff’s rights. It also justifies the finding that his Honour expressed on two occasions that, not only was the conduct intentional, but the causing of an apprehension of harm was also intentional. I am quite satisfied that this conduct was deserving of the censure of the Court and that this was one of the rare cases in which an award of exemplary damages was appropriate.

29 A submission was made on behalf of the Appellant that Constable Pickavance’s conduct should be understood as merely “reflexive or reactive”, in response to Mrs Ibbett’s appearance when he was seeking to effect an arrest of a speeding offender at gunpoint. The submission was based on his Honour’s finding of fact that Constable Pickavance was “unexpectedly confronted” by Mrs Ibbett and on his Honour’s finding that the Constable’s “general behaviour” was “reactive and impetuous”.

30 The submission elided any distinction between “reactive”, his Honour’s word, and “reflexive” the word of the submission. They are not equivalent. ‘Reactive’ like ‘impetuous’ carries an overtone of deliberation which is absent from “reflexive”.

31 There is no basis for interpreting his Honour’s reference to “unexpectedly confronted” as in some manner a finding that Constable Pickavance’s reaction was an instinctive response to a threat. To begin with there is no evidence of any character to suggest that he made any such response. Constable Pickavance denied that he had drawn the gun at all. He never gave evidence that his was some kind of instinctive reaction. There is no basis for an inference that it was such. Nor does his Honour’s finding that Constable Pickavance had a proclivity to engage in “reactive and impetuous behaviour” suggest that on this occasion his was a reflex reaction to a perceived threat. There is no evidence of, nor a finding of, a “threat”. His Honour’s finding goes no further than saying Mrs Ibbett’s appearance was “unexpected”. Constable Pickavance turned on Mrs Ibbett, screaming loudly, “Open the door and let my mate in”. He wanted her to act. There is no suggestion of self-protection.

32 On the basis of the demand for action, the proper finding, which his Honour made, was that Constable Pickavance intended to cause in the mind of Mrs Ibbett an apprehension of immediate personal violence which would occur if Mrs Ibbett did not do as he, screaming loudly, demanded, and allow his partner entry to the premises. It is, in my view, inconsistent with the finding that he intended to cause an apprehension of harm to conclude that it was in any way an instinctive reaction.

33 Furthermore, his Honour’s findings, twice expressed, that an immediate apprehension of harm on the part of Mrs Ibbett was “intentionally caused by Pickavance” and that his conduct was “calculated to cause fear and apprehension” was a proper basis for his Honour’s conclusion that Constable Pickavance’s conduct was in contumelious disregard of Mrs Ibbett’s rights. It also supported a finding of “conscious wrongdoing”. His Honour did not, in terms, use that terminology. Nevertheless, that is what his Honour intended by the findings he made, particularly the passage set out at [24] above, together with his Honour’s statement that the Constable behaved in a “reactive and impetuous” way. This should be understood as a finding of “conscious wrongdoing”, at least at the level of recklessness which, on the authorities to which I will refer, is sufficient.

34 Alternatively, even if Constable Pickavance was not “conscious” of his wrongdoing, this was still an appropriate case for an award of exemplary damages.

35 In Gray v Motor Accident Commission supra at [14] the joint judgment said that the formulation ‘conscious wrongdoing in contumelious disregard of another’s rights’, “describes at least the greater part of the relevant field”. This passage indicates that “conscious wrongdoing” although usual, is not essential. However, later in the joint judgment, their Honours seem to leave open the possibility that “conscious wrongdoing” was an essential requirement when they said:

“[20] … the remedy is exceptional in the sense that it arises (chiefly if not exclusively) in cases of conscious wrongdoing in contumelious disregard of the plaintiff’s rights.”

36 The reference to “if not exclusively” suggests that their Honours were not deciding whether “conscious wrongdoing” was essential. Kirby J was clearly of the view that it was not (at [86]).

37 The joint judgment in Gray made it clear that the case before the Court involved an allegation of “conscious wrongdoing” (at [24]) and that “No question arises here of an intentional wrong being committed by inadvertence” (at [22]).

38 The authoritative statement in Australia of the purpose of an award of exemplary damages is that they are awarded to punish and deter. (Gray supra at [15], [31] and [32].) However, an equally authoritative statement is that such damages express the Court’s condemnation of objectively outrageous behaviour. (Lamb v Cotogno (1987) 164 CLR 1 at 10.) The joint judgment in that case at 8 quoted Pratt LCJ in Wilkes v Wood (1763) 98 ER 489 at 498-499 that exemplary damages are awarded:

“… as a punishment to the guilty, to deter from any such proceeding for the future, and as a proof of the detestation of the jury to the act on itself.”

39 This is the same as the threefold statement of purpose by Lord Devlin in Rookes v Barnard [1964] AC 1129 at 1228:

“… to punish him for his outrageous conduct, to mark their disapproval of such conduct and to deter him from repeating it.”

40 Insofar as a purpose of an award of damages is to condemn conduct, it does not necessarily require subjective advertence to wrongdoing. Nor, in my opinion, even if the purpose should now be restricted to “punishment” and “deterrence”, is any such restriction required.

41 The state of mind of the defendant is always relevant (see Port Stephens Shire Council v Tellamist [2004] NSWCA 353; 235 LGERA 98 at 401-402). In Lamb v Cotogno supra at 13 the High Court indicated that actual subjective advertence to wrongdoing is not necessary by applying a test extending beyond “intention” to “recklessness”. The latter does not require “consciousness of wrongdoing”. There is no reason to interpret the High Court’s reference to recklessness as requiring conscious recklessness.

42 Further, as Fullagar J pointed out in Midalco Pty Ltd v Rabenalt [1989] VR 461 at 476-477, the joint judgment’s references to “intention or recklessness” must be understood in the context of the case. The joint judgment referred with approval to Fontin v Katapodis (1962) 108 CLR 177 where Owen J, with whom Dixon CJ agreed, said at 187 that exemplary damages may be awarded “where the defendant has acted in a high handed fashion or with malice”. Similarly in Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 120, Taylor J referred to the relevant test as conduct that had been “high handed, insolent, vindictive or malicious or had in some other way exhibited a contumelious disregard of the plaintiff’s rights”. Conduct which is “high handed” is not necessarily knowingly wrongful.

43 Obtuseness, or arrogance, whether or not capable of being described as “reckless”, which causes a defendant to believe that he or she had a right to act in the manner complained of, may itself require condemnation. Where such a belief cannot, or is not, reasonably held, as in this case, the process by which such a belief is formed must also be deterred and the conduct itself punished. Furthermore, if it be an alternative basis, the conduct may be properly condemned.

44 Subjective advertence to or knowledge of actual wrongdoing is not, in my opinion, essential before exemplary damages can be awarded.

45 This was the conclusion of Hodgson JA, with whom Sheller JA and Nicholas J agreed, at [9] and [147] in New South Wales v Riley (2003) 57 NSWLR 496, when his Honour said at [138]:

Gray

Lamb v Cotogno.

Gray

46 The fullest articulation of the reasons for permitting an award of exemplary damages in the absence of subjective advertence of wrongdoing is the judgment of the Privy Council on appeal from New Zealand in A v Bottrill [2003] 1 AC 449 esp at 24-25, 37, 40, 45, 46 and 47. Although this case may not be authoritative on Australian common law, the emphasis given to the purpose of condemnation should be followed.

47 Although the matter may be open in the High Court, the reasoning in Riley at [138] is supported by Australian authority and this Court should not depart from Riley.

48 In XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448, it was no answer to the claim for exemplary damages for trespass to land by Caltex that the company believed that it owned the oil tanks on the land which it had spiked and rendered useless. (See at 452.) As Gibbs CJ, with whom Mason, Murphy and Wilson JJ agreed, put it at 461:

“At the least, this action was taken by Caltex without bothering to ascertain whether it was lawful, indeed the jury may well have thought that Caltex did not care whether it was lawful or not: The jury might well have regarded the action of Caltex as showing a high handed and outrageous disregard for XL’s rights, or, as Glass JA described it: ‘an act of vandalism of the most disreputable kind, calling for the most indignant censure’.”

49 His Honour went on at 461-462 to indicate that it was open to the jury to find that Caltex did not in fact have a genuine belief of a right to spike the tanks, but his Honour was there dealing with quantum, to which issue such a belief was clearly material. There is no suggestion in the judgment of Gibbs CJ that subjective advertence is a requirement before exemplary damages can be awarded. The passage I have quoted, in the context, suggests that it is not.

50 In a case in which two private investigators wrongfully asserted a right to enter certain premises by licence, that very insistence, contrary to the fact, was held to justify an award of exemplary damages. (Schumann v Abbot & Davis [1961] SASR 149 at 158-160.)

51 In Johnstone v Stewart [1968] SASR 142, a person entered a woman’s residence in order to establish the adultery of his daughter’s husband. Bray CJ said at 145:

“It is urged that his motive was simply to find evidence of adultery and I agree. But I do not think that much improves his position. These melodramatic events were unnecessary. Coates had heard the voice of a man and a woman from what was obviously a bedroom and all the defendant had to do was to wait for morning and observe the plaintiff and Johnstone leaving the premises….

The adulterous have as much right as the chaste to the protection of their castles against invasion and their persons against force”.

52 Even if, in the present case, Phegan DCJ proceeded on the basis that Constable Pickavance’s wrongdoing was not “conscious wrongdoing”, in my opinion, an award of exemplary damages was still appropriate.

Exemplary Damages for Trespass to Land

53 The Appellant accepted that s21 of the Civil Liability Act could have no application to the claim for aggravated and exemplary damages for the trespass to land. It could not be, and was not, said that this cause of action was “for the award of personal injury damages” or that “the act or omission … was negligence”. The Appellant challenged the appropriateness of the award of aggravated and exemplary damages for the trespass.

54 For the reasons given by Basten JA there is no basis for an award of exemplary damages with respect to the conduct of Constable Harman. The conduct of Constable Pickavance is, however, in a different position.

55 The relevant conduct of Pickavance was his action in pursuing another person, who was lawfully on certain premises, into those premises. He conducted that pursuit by diving under a closing garage door. Thereafter, he remained on the premises despite demands by the owner that he depart. There was no express finding of conscious wrongdoing, as Basten JA points out. That is not, in my opinion, for the reasons outlined above, dispositive of a case for exemplary damages, but it is of considerable significance in that regard.

56 The reasons given by his Honour for the award of exemplary damages do not, in my view, identify the principal circumstances pertinent to the award in this case. His Honour placed particular reliance on the fact that the two police officers maintained their position that they had never done anything wrong and this was in some manner evidence that they had acted in contumelious disregard of the plaintiff’s rights.

57 I find this factor ambivalent. It is equally consistent with the existence, at the relevant time, of a belief that the entry onto Mrs Ibbett’s property was in fact lawful. In this respect, the uncertainty of the law to which Basten JA refers, prevents this belief being characterised as obtuse or arrogant, to use the terminology I have adopted above. It is by no means clear to me that it rises to the level of “recklessness”. Nor am I satisfied that the entry itself was sufficiently outrageous to require condemnation.

58 The case for an award of exemplary damages with respect to the trespass to land can, however, in my opinion, be based on the police officers’ conduct towards a guest, indeed a resident, who was lawfully on the owner’s property. An occupier of land has a right to expect that his or her guests will not be assaulted by policemen who seek to inappropriately arrest him at gunpoint, strip search him and then search his vehicle on the premises. This is not simply disregard of the rights of Mrs Ibbett’s son. It also disregards her right, as the owner of the property, to have her guests undisturbed.

59 As I have indicated, unlike the assault, there is no basis for a finding of consciousness of wrongdoing. Nevertheless, this conduct was highhanded and deserving of the condemnation of the Court. I have referred above to the authorities that indicate that an award of exemplary damages is appropriate even in the absence of a finding of conscious wrongdoing.

60 The present is a borderline case. If the Respondent’s son had done anything more serious than a speeding offence or negligent driving, or as his Honour found, there was any reasonable basis for suspicion of an offence, and there had been no brandishing of a weapon directed at him, I would not have regarded it as an appropriate case for an award of exemplary damages. Nevertheless, notwithstanding the fact that I do not accept all of his Honour’s reasons for making the award, there is a proper basis for an award of exemplary damages. Whether there should be an award will be discussed below.

Coherence

61 The Appellant submitted that no award of exemplary damages, whether for the assault or for trespass to land, should be made against police officers by reason of the fact that the Parliament has adopted a range of mechanisms for ensuring proper conduct by police including the responsibilities of the Commissioner for Police under the Police Act 1990 (NSW), the Ombudsman, the Police Integrity Commission and the Inspector General of the Police Integrity Commission. The Appellant relied on Sullivan v Moody (2001) 207 CLR 562. To similar effect, it was submitted, was the fact that the supervision and regulation of a Police Service is a core function of government and involves such a range of policy considerations that it is an inappropriate area for adjudication by the courts. Reference in this respect was made to the judgment of Gleeson CJ in Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at par [6]. It was submitted that the control and regulation of the police as a core government function must remain the responsibility of the political arm of government and an award of exemplary damages is inappropriate.

62 In my opinion, neither of the principles invoked apply.

63 No issue of coherence arises. I have indicated in other judgments the basis upon which issues of coherence can lead to the courts developing the law of torts by restricting its application in certain respects. (See in particular State of New South Wales v Paige (2002) 60 NSWLR 371 at [93]-[94] and Hunter Area Health Service v Presland [2005] NSWCA 33 at [20]-[21].) The imposition of a duty of care may be inconsistent with some aspect of the scheme or, if not directly inconsistent, may be otherwise inappropriate by reason of the scope and purpose of the legislation. However, all of the authorities refer to some impact of liability in tort upon the efficacy or operation of a statutory scheme. I repeat my summary of the cases in Presland at [21]:

· liability in tort may ‘distort [the] focus’ of the statutory decision-making process; (Crimminsv Stevedoring Industry Finance Committee (1999) 200 CLR 1 at 101 [292])

· the decision may be made in a ‘detrimentally defensive frame of mind’; (Hill v Chief Constable of West Yorkshire [1989] AC 53 at 63D)

· a common law duty should not be imposed if it ‘would … have a tendency to discourage the due performance of … statutory duties’; (X v Bedfordshire County Council [1995] 2 AC 633 at 739E)

· the imposition of a duty of care may ‘undermine the effectiveness of the duties imposed by the statute’; (Graham Barclay Oysters supra at 574 [78])

· ‘a common law duty could distort the performance of the functions of the statutory body’. (Crimmins supra at 77 [216])”

64 Mr J Maconachie QC who appeared for the Appellant acknowledged that there was no impingement of any character. He submitted that other mechanisms for control of the police were “more appropriate”. The courts should not refuse to exercise the discretion to award exemplary damages, in those rare cases in which it is appropriate to do so, merely because other mechanisms for control of government authority exist. There have always been such mechanisms, even if not as elaborate as those developed with respect to the NSW Police Force over recent years. (See, e.g. Plenty v Dillon (1991) 171 CLR 635 at 654-655 quoted below at par [89].)

65 Even in the United Kingdom which has restricted the award of exemplary damages in Rookes v Barnard supra, in a manner not adopted in Australia, exemplary damages are allowed for the category of “oppressive arbitrary and unconstitutional action by the servants of the government”. This category has always extended, perhaps particularly so, to illegal conduct by police officers. (See, e.g. David K Allan Damages in Tort, London, Sweet & Maxwell, 2000, at 5019-5022; Richard Clayton & Hugh Tomlinson Civil Actions Against the Police, 3rd ed, Thompson, Sweet & Maxwell, 2004, at 14030-14033.) The position in Australia, where the availability of exemplary damages is broader, can be no different.

66 Furthermore, it is not clear why, in this case, the Court should be satisfied with other forms of disciplinary proceedings when there is no evidence before the Court that any action of any significant character was taken. Indeed the evidence before the Court indicates that such action as was taken, by way of a re-education programme, was plainly inadequate.

The Cross-Claim

67 Mrs Ibbett asserts that his Honour’s awards of damages were inadequate under each head. She also challenges his failure to award aggravated damages in respect of the assault claim.

68 The Cross-Appellant submitted that the damages were manifestly inadequate. Reference was made to the award of higher exemplary damages in other cases particularly XL Petroleum v Caltex Oil supra; Adams v Kennedy (2000) 49 NSWLR 78 and Lee v Kennedy [2000] NSWCA 153. Reference was also made to the judgment of Heydon JA in Harris v Digital Pulse Pty Ltd (2003) 56 NSWLR 298 at [256] adopting the principle that exemplary damages “must not merely irritate, they must sting”. No cases were referred to by the Cross-Appellant which indicated an appropriate level of general damages or aggravated damages with respect to either the assault or the trespass to the land.

69 His Honour awarded $15,000 general damages for the assault. He accepted Mrs Ibbett’s evidence that she was “petrified”. There is no doubt in my mind that this intentionally caused harm, accompanied by loud shouting and a demand for immediate action, justified a significant award of damages.

70 The Appellant relied on the short period of time that Constable Pickavance actually pointed the gun at Mrs Ibbett. However, as Gibbs CJ said in XL Petroleum v Caltex Oil supra when considering exemplary damages, at 461:

“It was said that the infamous conduct was of short duration. I would not attach much significance to that fact in itself; much evil can be done in a moment.”

71 So it was here. Given the degree of personal violence about which an apprehension was intentionally inflicted the amount of $15,000 is low. However, I am not prepared to conclude that it was so low as to indicate an error in the exercise of a broad discretion by the trial judge. I would not allow the cross-appeal in this respect.

72 With respect to the award for trespass to land, his Honour rejected the Cross-Appellant’s case of any property damage or substantial consequential loss. There is no cross-appeal in that regard. He awarded the amount of $10,000 by way of recognition of the fact of the offence and the indignity caused to the plaintiff by the unlawful entry. In my opinion, this was not below the permissible range for an award of damages in the circumstances.

73 As noted above, the Cross-Appellant seeks an award of aggravated damages with respect to the assault. It is clear that his Honour regarded the matters relevant to this claim as also relevant to the award of aggravated damages with respect to the trespass to land and, accordingly, sought to avoid double counting. His Honour said:

“The assault was an isolated and discrete act of Pickavance alone. No other police officer was involved and the subsequent conduct of the police while on the premises and the prosecution’s subsequent withdrawal of charges against Warren Ibbett as well as the defence in these proceedings are more appropriately connected with the unlawful entry than with assault. I therefore make no award for aggravated damages with respect to the assault.”

74 There was one significant element to which his Honour referred in the context of aggravated damages for the trespass to land which was pertinent to the assault by Constable Pickavance. I refer to the so-called “re-education programme” which Mrs Ibbett was told both of the officers would undergo as a result of their conduct on this evening. I set aside entirely as not relevant to this issue, the evidence with respect to Constable Harman and his participation in the re-education programme.

75 Constable Pickavance’s response was particularly offensive when he said that the so-called “re-education” was a five minute discussion with a sergeant who said “Oh boys you’d better do better next time”. The Appellant called no evidence to suggest that anything more occurred. Ipp JA refers to the re-education programme as “praiseworthy” and a “bona fide attempt” by the State to prevent misconduct recurring. I do not agree, with respect, that the State’s conduct can be described in that way. On the evidence the “programme” was perfunctory in the extreme.

76 Mrs Ibbett gave evidence in reply that, with respect to Constable Pickavance’s evidence, she was “shocked, amazed and felt deceived”. His Honour found, in the context of aggravated damages for the trespass to land that:

“The dismissive attitude displayed by … Pickavance in particular, largely diffused what would otherwise had been a significant mitigation of the adverse consequences of the unlawful entry. In such circumstances the attitude expressed by both police officers further aggravated the consequences of the trespass to land.”

77 This reasoning is equally appropriate to an award of “aggravated” damages for the assault.

78 For somewhat different reasons Basten JA would vary the award of damages by awarding an amount of $10,000 on account of aggravated damages. This is an appropriate amount in all the circumstances.

79 The award of exemplary damages is to be assessed in the light of the awards of compensatory and aggravated damages. It is necessary for the Court to conclude that the amount of $25,000 to be awarded with respect to the assault was not sufficient to serve the objectives of punishment and deterrence to manifest the Court’s disapproval of the conduct. In this regard the matter to which I have referred with respect to aggravated damages, i.e. the contemptuous attitude to the so-called “re-education programme” does indicate a need to take further steps to deter conduct where steps such as the re-education programme were clearly inadequate. Furthermore, the intentional act by Constable Pickavance of causing Mrs Ibbett in all of the circumstances at the time, to fear an immediate act of violence unless she acted in accordance with his demands, warranted a high degree of moral obloquy. There were no circumstances of any character which could conceivably have justified the Constable turning his gun on Mrs Ibbett and demanding that she act in a particular manner. Such conduct deserves condemnation by the Court.

80 His Honour awarded an amount of $10,000 by way of exemplary damages for the assault claim. In my opinion, this is manifestly inadequate.

81 The conduct in Adams v Kennedy and Lee v Kennedy supra, where amounts of $100,000 and $120,000 respectively were awarded, did involve a longer period of conduct and greater intensity of misconduct. Nevertheless, the amount is totally out of proportion to what was awarded here. Similarly, the amount of $35,000 awarded in Vignoli v Sydney Harbour Casino (2000) Aust Torts Reps 81-541 involved a false imprisonment for a period of time, but did not involve the intense fear occasioned, albeit for a short period, in Mrs Ibbett. In my opinion, the amount of the award for exemplary damages in this case should be increased to $25,000.

82 I have indicated above my reasons for dismissing the Appellant’s appeal insofar as it submitted that there was no basis for an award of exemplary damages for trespass to land. This does not, however, dispose of the Appellant’s appeal on quantum with respect to the award of exemplary damages. That can only be determined after the Court determines the appropriate award by way of compensatory damages, whether as general damages or as aggravated damages. See my analysis of the need to separate the heads of damage in TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 at [155]-[166].

83 In this regard it is relevant to note that the matters to which I have referred as justifying an award of exemplary damages are also pertinent, as is often the case, to an award of aggravated damages. The difference is that in the case of aggravated damages the assessment is made from the point of view of the Plaintiff and in the case of exemplary damages the focus is on the conduct of the Defendant. Nevertheless, it is necessary, as I have noted above, to determine both heads of compensatory damages before deciding whether or not the quantum is such that a further award is necessary to serve the objectives of punishment or deterrence or, if it be a separate purpose, condemnation.

84 The relevant test is that set out in Lamb v Cotogno supra at 8:

“Aggravated damages, in contrast to exemplary damages, are compensatory in nature, being awarded for injury to the plaintiff’s feelings caused by insult, humiliation and the like.”

85 In Appleton v Garrett [1996] P.I.Q.R 1 at 4 Dyson J said that aggravated awards were appropriate:

“… where the manner in which the wrong was committed was such as to injure the plaintiff’s proper feelings of pride and dignity or gave rise to humiliation, distress, insult or pain. Examples of the sort of conduct which would lead to these forms of intangible loss were conduct which was offensive or which was accompanied by malevolence, spite, malice, insolence or arrogance.”

86 In Shattock v Devlin [1990] 2 NZLR 88 the court referred to compensating the plaintiff for “his sense of outrage and emotional reaction”.

87 In Thompson v Commission of Police [1998] QB 498 the Court of Appeal stated at 516:

“Aggravating features can include humiliating circumstances at the time of arrest or any conduct of those responsible for the arrest or the prosecution which shows that they had behaved in a high handed, insulting, malicious, or oppressive manner either in relation to the arrest or imprisonment or in conducting the prosecution. Aggravating features can also include the way the litigation and trial are conducted.”

88 As the Court of Appeal stated in Thompson, aggravated damages can be awarded where (at 516):

“… there are aggravating features about the case which would result in the plaintiff not receiving sufficient compensation for the injury suffered if the award was restricted to a basic award…the total figures for basic and aggravated damages should not exceed what [the jury] consider fair compensation for the injury which the plaintiff has suffered.”

89 In State of NSW v Riley supra, Hodgson JA said at 528:

“If, in addition to ordinary compensatory damages for injury to feelings, aggravated damages are to be awarded, then plainly it is important to avoid double counting; and the question arises, what can the additional aggravated damages be compensation for when injury to feelings have already been included in ordinary compensatory damages?

…if a court has awarded damages for hurt feelings as part of ordinary compensatory damages, the award of aggravated damages must only be the difference justified by this approach, that is, an award of so much as is necessary to bring the damages up to the upper end of the available range”

90 In Plenty v Dillon (1991) 171 CLR 635 police officers trespassed upon the plaintiff’s land purporting to serve process. Gaudron and McHugh JJ said at 654-5:

“In his judgment, the learned trial judge said that, even if a trespass had occurred, it was “of such a trifling nature as not to found [sic] in damages”. However, once a plaintiff obtains a verdict in an action of trespass, he or she is entitled to an award of damages. In addition, we would unhesitatingly reject the suggestion that this trespass was of a trifling nature. The first and second respondents deliberately entered the appellant’s land against his express wish. True it is that the entry itself caused no damage to the appellant’s land. But the purpose of an action for trespass to land is not merely to compensate the plaintiff for damage to the land. That action also serves the purpose of vindicating the plaintiff’s right to the exclusive use and occupation of his or her land. Although the first and second respondents were acting honestly in the supposed execution of their duty, their entry was attended by circumstances of aggravation. They entered as police officers with all the power of the State behind them, knowing that their entry was against the wish of the appellant and in circumstances likely to cause him distress. It is not to the point that the appellant was uncooperative or even unreasonable. The first and second respondents had no right to enter his land. The appellant was entitled to resist their entry. If the occupier of property has a right not to be unlawfully invaded, then, as Mr Geoffrey Samuel has pointed out in another context, the “right must be supported by an effective sanction otherwise the term will be just meaningless rhetoric”: ‘The Right Approach?’ (1980) 96 Law Quarterly Review 12 at 14, cited by Lord Edmund-Davies in Morris v Beardmore, at 461. If the courts of common law do not uphold the rights of individuals by granting effective remedies, they invite anarchy, for nothing breeds social disorder as quickly as the sense of injustice which is apt to be generated by the unlawful invasion of a person’s rights, particularly when the invader is a government official. The appellant is entitled to have his right of property vindicated by a substantial award of damages.”

91 In the present case, Phegan DCJ awarded damages for trespass to land on the basis of recognising “the offence and indignity to the plaintiff’s rights”. It is important, however, to recognise the restrictive basis on which his Honour made this award. His Honour’s consideration of the liability for trespass to land consisted of several pages of reasoning including reference to authority. However, throughout his Honour referred and referred only to “wrongful entry”. His Honour concluded this analysis with the following passage:

Nassif

92 The focus on entry in this way does not encompass other aspects of the conduct of Constable Pickavance which enhanced the extent to which Mrs Ibbett suffered insult or indignity or outrage. (As to such elements see H Luntz Assessment of Damages for Personal Injury and Death, 4th ed, Butterworths, Australia, 2002 at pars 1.7.10-1.7.11; David K Allen Damages in Tort, supra at 5-014; Richard Clayton and Hugh Tomlinson Civil Actions Against the Police, 3rd ed, supra at 14022-14029 and 14078-14080.)

93 His Honour awarded the amount of $20,000 by way of aggravated damages in this regard. Basten JA accepts that the award of $20,000 aggravated damages was appropriate, despite having identified an error in his Honour’s approach.

94 I agree that at least with respect to the factor of withdrawal of the charges, his Honour took into account a consideration irrelevant to the assessment of aggravated damages for the trespass to land. Accordingly, the exercise of the judgment as to what is an appropriate award for this purpose falls to be conducted again in this Court.

95 Bearing in mind that his Honour focused only on the actual act of entry it is understandable that he awarded an amount as low as $10,000 for the trespass to land. The other conduct which occurred after the act of entry in the continuation of the trespass was such as to substantially add to the sense of indignation, anger, outrage and insult suffered by Mrs Ibbett.

96 It is pertinent to note that there is no appeal from the finding against both Constable Pickavance and Constable Harman that they committed a trespass. It is nevertheless clear that Constable Harman’s conduct was of a different order to that of Constable Pickavance. It is difficult to identify what it was that Constable Harman did that was wrong. Nevertheless, the failure to appeal from the finding that his Honour made and the award of the general damages he gave with respect to the trespass to land means that the case must be assessed on the basis that Constable Harman had done something wrong.

97 The indignity and insult suffered by Mrs Ibbett was significantly affected by the way her guest, indeed her own son resident on the premises, was treated. This is, as I have noted in my discussion of exemplary damages above, is a matter which adds to the damage suffered by way of insult and indignity to the property interest of the owner. This conduct included:

· Constable Pickavance pointing a gun at Warren Ibbett.

· Warren Ibbett’s arrest and strip search, which was within either sight or eye shot of Mrs Ibbett.

· The continued shouting and screaming by Constable Pickavance, not at the moment at which he pointed the gun at Mrs Ibbett which has been taken into account on the assault charge.

98 In addition there was:

· What his Honour identified at Constable Pickavance’s “intemperate and unprovoked outburst to the plaintiff about the fate facing her son as a consequence of his drug abuse”.

· The reaction by Mrs Ibbett to the evidence of Constable Pickavance and Constable Harman about the irrelevance of the re-education programme about which promises had been made, relevantly with respect to the trespass not the assault.

99 These are factors which entitled his Honour to make an award of aggravated damages in this case.

100 The list of factors I have identified are not coincident with those to which his Honour referred. They do not include the question of the withdrawal of charges against her son, with which I agree with Basten JA.

101 In my opinion, the conduct of Constable Pickavance was considerably worse than the conduct of the television crew in TCN Channel Nine Pty Ltd v Anning supra where this Court refused to interfere with an award by way of aggravated damages of $25,000 (see at [179] and [194]). In my view his Honour’s award of $20,000, even if in part based on irrelevant considerations, was an appropriate award.

102 The factors that I have identified above as supporting an award of aggravated damages include the matters which I have earlier referred to as possibly justifying an award of exemplary damages. The issue that arises is whether $30,000 by way of compensatory damages is sufficient in all of the circumstances, or whether a further amount by way of punishment and deterrence is appropriate. I would not have thought it was but for one factor. This is the factor that I have referred to already in the context of the assault referrable only to Constable Pickavance. Although in the case of Constable Harman the re-education programme took longer, on his evidence “about 30 minutes”. In this regard, I separate such “re-education” as is pertinent to illegal entry on premises from “re-education” with respect to the deployment of the firearm as considered above with respect to exemplary damages for assault.

103 It does not appear that the alternative mechanism of ensuring that inappropriate conduct by police officers does not occur was treated with sufficient seriousness. For that reason alone it appears to me that an additional amount by way of deterrence is appropriate. In my opinion a small award of $20,000 as determined by his Honour is an appropriate amount to serve as a deterrent and to mark the disapproval of the Court in this respect. It is modest but I would not increase it in all the circumstances.

Conclusion

104 For these reasons, in my opinion, the appeal should be dismissed with costs and the cross-appeal allowed in part with costs.

105 I agree with the orders proposed by Basten JA.

106 IPP JA:

The appeal and cross-appeal

107 I have had the benefit of reading the reasons of Spigelman CJ and Basten JA in draft. I agree in some respects with their Honours and disagree in others.

108 This appeal and cross appeal concern two causes of action, trespass to the person (to which I shall refer as the assault) and trespass to land (to which I shall refer as the trespass).

109 After making some preliminary observations, I shall address the issues relating to the assault and thereafter I shall turn to the issues relating to the trespass.

110 As regards the assault, the trial judge (Phegan DCJ) awarded Mrs Ibbett $15,000 for general damages and $10,000 for exemplary damages. He declined to make an award for aggravated damages.

111 As regards the trespass, his Honour awarded Mrs Ibbett $10,000 for general damages, $20,000 for aggravated damages and $20,000 for exemplary damages. The State argues that awards of exemplary and aggravated damages should not have been made and appeals against these awards.

112 Mrs Ibbett cross-appeals. She contends that the awards for general and exemplary damages in respect of both causes of action are excessively low. She contends that the trial judge erred in failing to award aggravated damages in respect of the assault. She does not cross-appeal against the amount of aggravated damages in respect of the trespass.

The cross-appeal as to general damages for the assault

113 The pointing of the gun and the generally aggressive behaviour of Constable Pickavance regarding Mrs Ibbett lasted only for a matter of seconds. She was not physically touched. In my opinion, the amount of $15,000 awarded for general damages for the assault is within discretion. The cross-appeal in respect of this issue should fail.

The application of s 3B(1)(a) and s 21 of the

Civil Liability Act

114 In its notice of appeal the State asserts that the trial judge erred in holding that Pt 1 of the Civil Liability Act 2002 (NSW) did not preclude the court from awarding exemplary and aggravated damages in this case. The reference to Pt 1, in reality, is a reference to s 3B(1)(a) (which is in Pt 1). Section 3B(1)(a) provides that the Act does not apply to civil liability (and awards of damages in proceedings in respect of civil liability) “in respect of an intentional act that is done with intent to cause injury or death …”.

115 The State contends that the tort of assault alleged by Mrs Ibbett contains within it an element of negligence. On that basis, it contends that s3B(1)(a) does not operate to exclude the application of the Act to Mrs Ibbett’s claims. The next limb of the State’s argument is that, as the Act applies to Mrs Ibbett’s claims, s 21 of the Act operates so as to preclude an award of exemplary or aggravated damages. Section 21, which is in Pt 2 of the Act, provides:

“21. In an action for the award of personal injury damages where the act or omission that caused the injury or death was negligence, a court cannot award exemplary or punitive damages or damages in the nature of aggravated damages.”

116 Recommendation 2 (described as the “overarching recommendation”) of the final report by the panel appointed by the Commonwealth and State governments to review the law of negligence recommended that the legislation incorporating its recommendations “should apply (in the absence of express provision to the contrary) to any claim for damages for personal injury or death resulting from negligence regardless of whether the claim is brought in tort, contract, under a statute or any other cause of action”. The final report explained (in para 2.3) that it used the term “negligence” in this context to mean “failure to exercise reasonable care and skill”. The Civil Liability Act incorporates provisions that adopt Recommendation 2 and the concept of “negligence” in the sense proposed; see s 5 and s 5A (Pt 1A), s 11A (Pt 2), and ss 27 and 28 (Part 3).

117 The general intent and import of Pt 1A of the Civil Liability Act (which is headed “Negligence”), Pt 2 (which is headed “Personal injury damages”), and Pt 3 (which is headed “Mental harm”), read with s 3B(1), is that, save as set out in s 3B(1), these Parts apply to any claim for damages for personal injury or death resulting from negligence (meaning “failure to exercise reasonable care and skill”) regardless of whether the claim is brought in tort, contract, under a statute or any other cause of action.

118 There is no specific provision in Pt 2 to the effect that “negligence” in that Part means “failure to exercise reasonable care and skill” but in my opinion “negligence” in s 21 should be so construed. I agree with Basten JA that a “failure” to exercise reasonable care and skill (in the definitions of “negligence” in ss 5 and 27) assumes the existence of a duty to exercise reasonable care and skill.

119 In my opinion, for a defendant to be able to rely on the application of the Act to a claim based on a cause of action that does not allege a breach of a duty to exercise reasonable care and skill, the defendant would have to plead (or, depending on the circumstances, otherwise appropriately and timeously contend) that the Act applies on the ground that the damages result from “negligence”. The defendant should crystallise the issues in such a way that the trial judge is called upon to make a finding in this respect. It would ordinarily not be appropriate for a defendant to raise such an argument for the first time on appeal.

Does s 3B(1)(a) apply so as to trigger the operation of s 21?

120 The State accepts that s 21 does not apply to the claims for aggravated and exemplary damages for trespass. That cause of action was neither “for the award of personal injury damages” nor did it involve “negligence”. Thus, the State’s argument as to the preclusionary effect of s 3B(1)(a) was directed only to the assault cause of action.

121 An essential element of the application of s 3B(1)(a) is that the civil liability asserted must be in respect of “injury”.

122 The damages sustained by Mrs Ibbett were, according to the trial judge’s findings, caused by “anxiety and distress”. The State contended that s 3B(1)(a) did not apply because the anxiety and distress did not amount to an “injury” within that section.

123 The State submitted that s 11 supported its argument. Section 11 provides that in Pt 2 “personal injury damages means damages that relate to the death of or injury to a person,” and that, in Pt 2:

“Injury means personal injury and includes the following:

(a) pre-natal injury,

(b) impairment of a person’s physical or mental condition,

(c) disease.”

124 I would not uphold this submission. In my view, anxiety and distress would be an “impairment” of a person’s mental condition in accordance with the ordinary meaning of “impairment”, as the word is used in s 11.

125 In my opinion, irrespective of whether the ordinary meaning of the word is attributed to “injury”, or whether it is given the meaning defined in s11, the word is wide enough to encompass anxiety and stress.

126 The State also sought to place some reliance on Pt 3 (and the provisions relating to mental harm in that Part). In my view these provisions do not advance the State’s argument. Section 31 (which is in Pt 3) provides that “there is no liability to pay damages for pure mental harm resulting from negligence unless the harm consists of a recognised psychiatric illness”. This section implicitly recognises that, but for its provisions, there would be liability to pay damages for pure mental harm that consisted of something less than a recognised psychiatric illness. That is to say, the Act would otherwise apply to mental harm that is not caused by a recognised psychiatric illness.

127 Next, the State argued that s 3B(1)(a) applied so as to exclude the application of the Act as the “civil liability” asserted was not in respect of “an intentional act of that is done with intent to cause injury …” but in respect of negligence.

128 I consider this submission to be entirely without merit. The State did not plead (or otherwise appropriately contend at the trial) that the Act applies on the ground that the damages result from “negligence”. Spigelman CJ points out: “this case was conducted, and conducted only, on the basis that the conduct of Constable Pickavance was intentional”. The Chief Justice observes that, whatever the original pleading may have implied (in regard to the particulars of damage), a case of negligence was not run. For that reason, the trial judge made no finding that Mrs Ibbett’s damages (on either cause of action) resulted from negligence. These matters, alone, are fatal to this argument.

129 In any event, Spigelman CJ demonstrates that “the proper finding, which his Honour made, was that Constable Pickavance intended to cause in the mind of Mrs Ibbett an apprehension of immediate personal violence” and that Constable Pickavance’s actions were not in consequence of an instinctive reaction. For the reasons that Spigelman CJ gives, I agree that the requisite element of intent in relation to the assault was established and found, and is correct.

130 I would, therefore, not uphold the State’s arguments on this issue. Accordingly, s 3B(1)(a) operates to exclude the application of the Act and, in particular, s 21, to Mrs Ibbett’s assault claim.

Aggravated damages for the assault

131 The trial judge awarded no aggravated damages for the assault because of the perceived difficulties of separating the consequences of the assault and the invasion of Mrs Ibbett’s property. His Honour said that he thought the more appropriate course would be to leave the question of aggravation “to the damages recoverable for the unlawful entry”. Mrs Ibbett cross-appeals against the failure to award aggravated damages for the assault.

132 In my view, where an award for aggravated damages is appropriate, the Court is required to do the best it can in assessing the aggravated damages caused by different categories of conduct. As I discuss more fully below, the notion of lumping together awards of damages for different causes of action offends against basic concepts of fairness.

133 Aggravated damages are compensatory damages awarded to compensate the plaintiff for the aggravation suffered by the plaintiff as a result of the tort. The purpose of exemplary damages, on the other hand, is to punish the defendant, to act as a general and specific deterrent, and to demonstrate the court’s disapproval of the defendant’s conduct.

134 It follows that the same conduct can give rise to exemplary damages and aggravated damages. That does not give rise to double counting as the two categories of damages are awarded for different purposes.

135 Hodgson JA in State of New South Wales v Riley (2003) 57 NSWLR 496 explained (at 528):

for

“[I]n cases of hurt to feelings caused by wrong-doing that goes beyond ordinary human fallibility … the court is justified in aiming towards the upper limit of the wide range of damages which might conceivably be justified.”

“This means that, if a court has awarded damages for hurt feelings as part of ordinary compensatory damages, the award of aggravated damages must only be for the difference justified by this approach, that is, an award of so much as is necessary to bring the damages up to the upper end of the available range.”

136 In my opinion, the conduct of Constable Pickavance in assaulting Mrs Ibbett went “beyond ordinary human fallibility” and I accept that an award of aggravated damages should have been made. In my view, the amount awarded for general damages ($15,000) was towards the middle of the range. I agree that an additional amount of $10,000 on account of aggravated damages should be awarded. I would uphold the cross-appeal to this extent.

Did the trial judge err in his discretion in awarding exemplary damages for the assault?

137 I repeat that I agree with Spigelman CJ that the trial judge rightly found that Constable Pickavance intended to cause Mrs Ibbett to apprehend immediate personal violence. I agree with the Chief Justice that Constable Pickavance’s actions were not in consequence of an instinctive reaction. Accordingly, I agree that Constable Pickavance’s actions amounted to “conscious wrongdoing in contumelious disregard of another’s rights”. On this basis, I agree that the trial judge was entitled to award exemplary damages for the assault and did not err in the exercise of his discretion in this respect: Gray v Motor Accident Commission (1998) 196 CLR 1 at [14].

254 A third concern relates to the relevance of a number of the cases to which his Honour referred, including Lippl v Haines (1989) 18 NSWLR 620 and R v O’Neil (2001) 122 A Crim R 510. Both related to forcible entry to land. As stated by Gleeson CJ in Lippl (at 622D):

Halliday v Nevill

“Then, while the appellant and Police Constable Nevill were walking back down the driveway towards the police car, the appellant suddenly broke away from Police Constable Nevill’s grasp and ran across Liberty Parade and entered his own home at No. 370. The police officers pursued him into the house where a scuffle took place before he was finally overcome. The two charges of resisting the police officers and the two charges of assault all relate to the scuffle that occurred in his own home.”

255 The appeal was concerned only with the lawfulness of the arrest in the driveway across the road, not with the subsequent events in his own home, as that entry had statutory justification if he were escaping from a lawful arrest: Nevill v Halliday [1983] 2 VR 553, 555 (Brooking J). The joint judgment of Gibbs CJ, Mason, Wilson and Deane JJ, held that, as a member of the police force, the respondent “had an implied or tacit licence from the occupier to set foot on the open driveway for the purpose of questioning or arresting a person whom he had observed committing an offence on a public street in the immediate vicinity of that driveway”. Their Honours continued (at p 8):

“Any such occupier who desires to convert his path or driveway adjoining the public road into a haven for minor miscreants can, by taking appropriate steps, preclude the implication of a licence to a member of the police force to enter upon the path or driveway to effect an arrest with the result that a police officer’s rights of entry are restricted to whatever overriding rights he might possess under some express provision or necessary implication of a statute [or] the common law.”

256 The primary judge distinguished Halliday on the basis that the entry here “was of a much more intrusive kind and clearly without the plaintiff’s consent”. That conclusion was presumably based on the fact that the police (or at least Constable Pickavance) entered the garage by going under a closing door, which was no doubt intended to exclude anyone who might otherwise have had an implied licence to come on to the driveway. However, because there was no finding that Constable Pickavance knew that he was exceeding his powers, in circumstances where the precise limits of power may have involved difficult legal questions, the primary judge must be understood to have awarded exemplary damages on the basis of something less than deliberate wrongdoing.

257 Whether or not at the time of entry to the Plaintiff’s land Constable Pickavance knew that he was exceeding his powers as a police officer, from the moment that he dived under the closing garage door, it was reasonable to infer that he was indifferent as to whether he had lawful authority for remaining on the Plaintiff’s land and that he acted in a manner which showed palpable disregard for her rights as a proprietor. The findings of fact justifying that conclusion have been referred to above. Accordingly, despite the concerns with respect to aspects of his Honour’s findings, I am not persuaded that the conduct of Constable Pickavance, accepted by the trial judge, was insufficient to warrant an award of exemplary damages. The question of quantum will be addressed below, in relation to the cross-appeal.

Trespass to land – aggravated damages

258 There was a separate challenge raised by the Crown to the award of aggravated damages. No award was made in this regard in relation to the assault with a firearm, on the basis that “the consequences of the assault and of the invasion of the plaintiff’s property by way of unlawful entry are not easily separated”. However, the difficulty with this course is that, as his Honour noted, the assault was “an isolated and discrete act of Pickavance alone”. There is a danger in treating it as but another consequence of the unlawful entry, if Constable Harman were to be implicated in the damages for the assault, in which he had no part.

259 When dealing with the question of aggravated damages in respect of the trespass to the land, his Honour noted that such damages are “compensatory in nature and are awarded for injury to the plaintiffs’ feelings caused by insult or humiliation” – referring to Lamb v Cotogno and Hunter Area Health Service v Marchlewski (2000) 51 NSWLR 268. The reference to Hunter Area Health Service does not greatly assist in this discussion. In that case, Mason P was concerned with the question whether aggravated damages should be awarded for mental distress or injured feelings, in a negligence claim. His Honour held that such an award was inappropriate, a conclusion now reflected in s 21 of the Civil Liability Act. One reason for adopting that view was that, at least when parasitic or consequential upon other types of damage, compensation for mental distress, vexation or annoyance is available in a negligence action, according to principles identified in Avenhouse v Hornsby Shire Council (1998) 44 NSWLR 1 at 37-39, referring at 38G to Baltic Shipping Co v Dillon (1993) 176 CLR 344 at 359-360. As Mason P continued in Hunter Area Health Service at [110]:

“To speak of aggravated damages as a separate component can only have the capacity to confuse and run the risk as to double compensation … .”

260 In the present case, the trial judge was conscious of the risk of double compensation, noting:

“Had the consequences of the act of trespass being confined to the initial entry on to the plaintiff’s driveway and into the plaintiff’s garage the amount awarded by way of compensatory damages would be an adequate reflection of those consequences.”

261 In relation to the first element, his Honour referred to the removal of Mr Ibbett’s van from the garage and its subsequent search, together with his arrest and strip search. He also referred to Constable Pickavance’s “intemperate and unprovoked outburst to the plaintiff about the fate facing her son as a consequence of his drug abuse”. All of these events, as his Honour noted, occurred on her premises and as part of the continuing trespass. Those factors are, in my view, relevantly connected with the tort and support an award of aggravated damages.

262 The second factor, the prosecution of charges, falls into a different category. His Honour referred to “the insult and humiliation implicit in the aftermath of the withdrawal of the charges against her son”. That appears not to refer to the withdrawal itself, which might well have been viewed as an element of vindication, to the extent that it affected the plaintiff, but to the effect of the so-called “re-education program”. However, the relevance of this conduct is somewhat obscure. It appears to have been the case that other officers promised the Plaintiff that Constables Pickavance and Harman would be subject to some form of counselling or direction, such promise being made at the time she withdrew her complaint to the Ombudsman. Precisely what counselling or re-education took place is unclear. In the case of Constable Harman, it was apparently a process which took some 30 minutes, although with Constable Pickavance, who appears to have been more at fault, the process was much shorter. In neither case does it seem to have brought home to either constable the fact or nature of the misconduct in which they were involved. That, however, would appear to be the fault of the senior officers, rather than of either of the constables. Further, such instruction as was given was given separately and, it would appear, in different circumstances. On one view, the thrust of this complaint should better have been directed at the State directly, rather than vicariously, on the basis that it failed to take appropriate steps to correct misconduct which was brought to the attention of those responsible for the Police Service. That, however, was not the way in which the matter appears to have been addressed. In my view these circumstances cannot be relevant to aggravated damages, based on the tortious conduct of the two constables.

263 It follows that the third element, namely the plaintiff’s reaction to their evidence of their inadequate counselling, is not a factor by way of aggravation. If they were not criticised for an improper exercise of power, by those in authority over them, they in turn should not be criticised for failure to concede the error of their ways. However, the conduct of a defendant sufficient to aggravate damages must be “in some way unjustifiable, improper or lacking in bona fides”: Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 at 653B (Samuels JA). In the present circumstances, each of the constables gave evidence which, in varying degrees, was inconsistent with the elements of aggravation. For example, each denied that Mr Ibbett was stripped searched and Constable Pickavance denied that he drew his pistol from its holster. Furthermore, as already noted, the evidence suggesting impropriety on the part of Constable Harman was not clearly identified. Nevertheless, for the reasons identified by the Chief Justice at [94]-[97] above, referring to the findings made by the trial judge as to relevant circumstances, the amount of his Honour’s award in relation to aggravated damages with respect to the trespass to land remains within the appropriate range and need not be varied.

“Principle of coherence”

264 A further argument was raised by the State in resistance to the proposition that exemplary damages should be awarded against the police. That argument was said to be derived from the “principle of coherence” referred to, by way of example, in Sullivan v Moody (2001) 207 CLR 562. The principle of coherence, it was argued, requires that the Court have regard to the fact that responsibility or control for the actions of police officers has been reposed by statute in the Commissioner of Police (see, Police Act 1990 (NSW) ss 139, 148, 173 and 181D) and, in addition, jurisdiction to consider complaints about police officers has been reposed in the Ombudsman, the Police Integrity Commission and the Inspector General of the Police Integrity Commission, to say nothing of the general criminal law.

265 The so-called ‘principle of coherence’ may have a different application in different areas of the law. Its operation in the context of disciplinary action in relation to a teacher in a public school was discussed in detail by Spigelman CJ in State of New South Wales v Paige (2002) 60 NSWLR 371, at [97]-[177]; see also Spigelman CJ in Hunter Area Health Service v Presland [2005] NSWCA 33, at [20]-[41].

266 The argument against the imposition of liability for exemplary damages, was supplemented by reference to the principle that, the provision, conduct, supervision and regulation of the Police Service, being a core function of government, is an inappropriate area for adjudication by the Courts. Reference was made by way of analogy to Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at [6] and [7] (Gleeson CJ).

267 Dealing with the latter case first, the principles upon which reliance was placed in Graham Barclay Oysters concerned the inaction of the Government and the Local Council in failing to exercise powers available to them under relevant State statutory provisions allowing control of pollution in Wallis Lake and its tributaries, in order to prevent threats to public health and to provide environmental protection. It was in that context that Gleeson CJ commented on the difficulty in “inviting the judicial arm of government to pass judgment upon the reasonableness of the conduct of the legislative or executive arms of government”. Although, as his Honour noted, three members of the majority in Brodie v Singleton Shire Council (2001) 206 CLR 512 at [162] accepted that it may be “proper and necessary for a court to decide whether the priorities of a local council in dealing with road repairs in various locations were reasonable”, nevertheless, his Honour noted that “the scope for judicial examination of the reasonableness of governmental spending priorities was not held to be, and cannot be, at large”. The thrust of these comments, however, was not concerned with a liability which may be imposed on a State government for the tortious acts of its police officers. Indeed, such liability has been expressly accepted by the State pursuant to the Vicarious Liability Act, s 8. Nor was it argued that the liability of the State under that legislation did not extend to exemplary damages. Accordingly, there is nothing in Graham Barclay Oysters, which provides assistance with respect to the present question.

268 The principle derived from Sullivan v Moody also lies within a different area. Indeed, to describe the case as involving an application of the ‘principle of coherence’ may not be entirely helpful. The reference to coherence makes better sense in the context of the general law, as noted by the reference at [50] to the judgment of Gummow J in Hill v Van Erp (1995-97) 188 CLR 159 at 231. The thrust of Sullivan was that, in circumstances where legislation imposed an obligation on State officers to identify and take steps to protect children at risk of harm, it would not be conducive to the proper exercise of such statutory powers to impose a duty of care to avoid harm to possible abusers. That required consideration not merely of the foreseeability of harm, if care were not taken, but the question of policy involved in the imposition of the duty. As the Court noted, in discussing the reasons of the Full Court of the Supreme Court of South Australia, at [41]:

“The question was whether the provisions of that scheme were incompatible with there being a duty owed to the plaintiff. The statute imposed a duty upon the defendants to protect children, to investigate allegations of child abuse, and to make necessary reports. The interests of the child were to be the paramount consideration. … From all this there was inferred a statutory intention ‘that the common law should be excluded in so far as the alleged perpetrator of the abuse is concerned’.”

“If it were otherwise, at least two consequences would follow.”

“More fundamentally, however, these cases present a question about coherence of the law. Considering whether the persons who reported their suspicions about each appellant owed that appellant a duty of care must begin from the recognition that those who made the report had other responsibilities. A duty of the kind alleged should not be found if that duty would not be compatible with other duties which the respondents owed.”

269 There is no lack of coherence, or incompatibility, in subjecting the State to an award of exemplary damages in relation to the misconduct of police officers in appropriate cases. The development of more sophisticated means of regulation and new complaint mechanisms may suggest that the general criminal law and the limited availability of exemplary damages has not been effective in controlling inappropriate conduct on the part of police officers, or merely that more flexible mechanisms, not involving litigation, should be available to handle such complaints.

270 Care should be taken to avoid reliance on a perception of incompatibility with a statutory scheme, eliding into an argument based on ‘the equity of the statute’ or ‘statutory analogy’. The latter form of reasoning has been rejected more than once as a basis for developing general law principles: see Finn P “Statutes and the Common Law: The Continuing Story” in Corcoran S and Bottomley S (eds) (2005, Federation Press) pp 57-62. In this particular context, in Lamb v Cotogno, the joint judgment stated (at p 11):

“Even if it were possible for a court to go beyond what a statute actually enacts and to draw from it some principle to be applied by way of analogy in fashioning the common law, it would not assist the defendant’s argument in this case. Such an approach was first suggested by Pound in 1907, but it has never really gained general acceptance, at all events in that simple form … .”

271 These arguments may, perhaps, be better understood as an invitation to expand the range of circumstances in which exemplary damages might not be awarded because other steps have been taken, resulting in appropriate punishment and a sufficient level of deterrence. Whilst the relevance of those factors may be accepted, it is not the existence of such mechanisms for alternative means of punishment or deterrence, but the operation of those mechanisms in a particular case, which may render an award of exemplary damages inappropriate. There was no persuasive evidence that such steps had been taken in the present case to deal with the officers, at least in terms of the findings of misconduct made by the primary judge.

272 Finally, the State placed emphasis on the principle, frequently acknowledged, that awards of exemplary damages should be rare. However, that principle may better be expressed as a requirement that the pre-conditions to the making of an award should be strictly applied. One may hope that the occasion for such an award will indeed be rare: nevertheless, if the occasion arises, an award will be appropriate, whether or not a number of similar awards have been made in recent times.

Plaintiff’s cross-appeal

273 The Plaintiff cross-appealed against so much of his Honour’s judgment as constituted a failure to award aggravated damages in respect of the assault claim. In my view this element of the cross-appeal should succeed. It is clear that his Honour intended to include, as part of the consequences of the unlawful entry, conduct of police officers whilst on the premises, which included the pointing of the revolver at the Plaintiff. Because that was specifically the act of Constable Pickavance, an award should have been made in respect of that specific element of misconduct, given the seriousness with which his Honour viewed the factual circumstances, as found by him.

274 The plaintiff also sought to cross-appeal in relation to the inadequacy of the amounts awarded both by way of compensatory damages and exemplary damages.

275 In relation to the compensatory damages awarded with respect to the assault, the challenge to the plaintiff’s appearance was apparently reactive, Constable Pickavance not knowing who she was or whether she constituted a threat to his safety. He should, perhaps, have looked first and swung the gun second: however, because of the short-lived nature of the threat, the distress caused to the plaintiff must have been limited. I would not interfere with his Honour’s assessment in that regard. Similarly, the distress caused to the plaintiff by the intrusion on her property, by way of compensatory damages, was very much a matter for assessment by the primary judge. No error of principle was demonstrated in relation to his assessment.

276 As is apparent from Adams v Kennedy, an unlawful arrest by a police officer may well give rise to separate causes of action based on assault, trespass to land, false imprisonment and possibly an unlawful search. In such circumstances it may be appropriate, as the Court held in Adams, to make a single award of exemplary damages covering different aspects of the continuous course of conduct. In the present case either approach may be open: Constable Pickavance’s action in turning his handgun towards the Plaintiff occurred at a time when Constable Harmon was not present and was capable of being dealt with as a separate and severable incident. On the other hand, it could properly be viewed as but one element in a course of aggressive and offensive behaviour on the part of Constable Pickavance on the Plaintiff’s property. I am conscious of the dangers adverted to by Ipp JA at [157] above: but, in my view, none of them eventuates from the course I would propose in this case.

277 As noted above, there were no factual findings made in relation to Constable Harman personally which could properly form the basis of an award of exemplary damages based on his conduct. Because it is necessary to identify a relevant state of mind in relation to an individual tortfeasor, it is not, in my view, appropriate to impute to Constable Harman the beliefs or intentions of Constable Pickavance: cf Port Stephens Shire Council v Tellamist, 235 LGERA at [406]. For this reason, his Honour’s award, specifically in relation to the trespass to land, other than the assault, cannot be sustained.

278 Nevertheless, the aspects of the conduct of Constable Pickavance which are described in detail by the Chief Justice, and warrant an award of aggravated damages in relation to the trespass to land, also support an award of exemplary damages which takes those matters into account. Further, the view that exemplary damages should “sting” and not merely irritate, supports the conclusion that an award, if justified at all, should be in a significant amount. Part of its purpose will be, albeit indirectly through the mechanism of vicarious liability, “to bring home to those officials of the State who are responsible for the overseeing of the police force that police officers must be trained and disciplined so that abuses of the kind that occurred in the present case do not happen”: Adams, at [36]. Although, as noted above at [262] the inadequacy of the subsequent counselling was not the fault of Constable Pickavance, the evidence as to what took place in that regard prevents the State arguing that an award is not necessary to give effect to the purpose identified in Adams: see also [271] above.

279 The position of the Plaintiff in these proceedings is closer to the position of the plaintiff in Lee v Kennedy, than that of Mr Adams. The conduct of the police officers in the present case, however, is not in the same league as the conduct in relation to Ms Lee, to whom an award of $120,000 was made some five years ago. Nevertheless, the finding that Constable Pickavance, having drawn his handgun, pointed it towards the Plaintiff is a matter of some seriousness. That seriousness is aggravated by the continuation of his aggressive and offensive behaviour after any possible danger had passed. In my view an appropriate award of exemplary damages, limited to the conduct of Constable Pickavance in the course of the events in question, should be an amount of $45,000.

280 The Chief Justice proposes that separate awards of exemplary damages should be made in respect of each cause of action. His Honour would increase the award with respect to the assault to $25,000 and would not interfere with the assessment of the trial judge of $20,000 with respect to the trespass. Ipp JA agrees with the approach of separate awards, but would not interfere with the trial judge’s assessment of $10,000 with respect to the assault and would overturn the assessment with respect to the trespass. As the global award I favour is a minority view, but reaches the same figure as the Chief Justice, I am content to agree with the orders proposed by his Honour, as nothing said above is intended to suggest that such an approach is not available.

Conclusions

281 The Plaintiff was successful in her action, based on the intentional conduct of each of the constables. The awards for compensatory damages made in her favour were not based on negligence. Accordingly s 21 of the Civil Liability Act had no operation.

282 Consistently with this conclusion, at least in relation to the assault, s 21 could have had no operation, whatever the scope of its own language, because the damages flowed from intentional acts which were intended to cause injury in the manner in which his Honour so found. In that case, s 3B excluded the operation of Part 2 of the Act in any event.

283 The Plaintiff also filed a notice of contention seeking to assert that provisions of the Civil Liability Act were invalid, in that they were in breach of s 5 of the Constitution Act 1902 (NSW) or, in the alternative, were invalid pursuant to s 109 of the Constitution, because they purported to abrogate or restrict common law rights. Neither of these grounds had any merit, and were reduced to the status of “formal submissions”, to which no argument was addressed at the hearing. Nevertheless, they had been the subject of written submissions filed on behalf of the Plaintiff and had induced the Attorney-General for the State of New South Wales to intervene in opposition to the arguments so presented. It is implausible that the arguments raised could not have been satisfactorily dealt with by senior counsel for the State, but as he did not address them, those matters can be disregarded in relation to costs as between the parties. The results otherwise suggest that the State should pay the Plaintiff’s costs of the appeal. Although the Plaintiff was only partly successful on the cross-appeal, she has obtained a significant increase in the verdict. In addition that part of the argument formed only a limited part of the hearing. She should have her costs of that proceeding also. The costs order made by the primary judge should not be disturbed.

284 I would make the following orders:

(2) Allow the cross-appeal in part and vary the orders in the District Court so as to:

(a) set aside orders 1 and 2;

(b) in relation to the assault, add an additional amount of $10,000 on account aggravated damages; and

(c) set aside the awards of exemplary damages and award in lieu thereof:

(i) an amount of $25,000 with respect to the assault, and

(ii) an amount of $20,000 with respect to the trespass.

(3) Direct that judgment be entered for the Plaintiff in the sum of $105,000.

**********

CA 41119/04
DC 329/02

SPIGELMAN CJ
IPP JA
BASTEN JA

16 December 2005

STATE OF NEW SOUTH WALES v DOROTHY ISABEL IBBETT

Addendum

THE COURT:

1. On 13 December 2005, the Court delivered judgment allowing the cross-appeal in part and varying the amounts awarded by the trial judge. The total damages so awarded were $100,000. Through an error of arithmetic, order (3) directed that judgment be entered for the plaintiff in the District Court in the sum of $105,000. With the consent of the parties, and pursuant to rule 36.17 of the Uniform Civil Procedure Rules 2005, the amount identified in order (3) is varied to $100,000.

**********

19/12/2005 - - Paragraph(s)

Actions

Download as PDF Download as Word Document

Citations

State of New South Wales v Ibbett [2005] NSWCA 445

Most Recent Citation

Gebrehiwot (who sues by his litigation guardian Tamar Hopkins) v State of Victoria (Ruling No 2) [2019] VCC 1229

Cases Citing This Decision

176

Moore v Scenic Tours Pty Ltd [2020] HCA 17

Cases Cited

36

Statutory Material Cited

8

Ali v Hartley Poynton Ltd [2002] VSC 113

Houda v New South Wales [2005] NSWSC 1053

Hunter Area Health Service v Presland [2005] NSWCA 33

CITATION:	State of NSW v Ibbett [2005] NSWCA 445 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	14 October 2005
JUDGMENT DATE:	13 December 2005
JUDGMENT OF:	Spigelman CJ at 1; Ipp JA at 106; Basten JA at 184
DECISION:	(1) Appeal dismissed; (2) Allow the cross-appeal in part and vary the orders in the District Court so as to; (a) set aside orders 1 and 2; (b) in relation to the assault, add an additional amount of $10,000 on account aggravated damages; and; (c) set aside the awards of exemplary damages and award in lieu thereof; (i) an amount of $25,000 with respect to the assault, and; (ii) an amount of $20,000 with respect to the trespass; (3) Direct that judgment be entered for the Plaintiff in the sum of $105,000; (4) Order the Appellant to pay the Respondent’s costs of the appeal and cross-appeal

CATCHWORDS:	Damages – - assault and trespass committed by police officers - exemplary damages – aggravated damages - whether award of exemplary damages and/or aggravated damages against the State appropriate – whether award precluded by s21 of Civil Liability Act (2002) (NSW) – whether s3B(1)(a) operates to exclude the application of the Act – whether the proceedings were with respect to ‘an intentional act done with intent to cause injury’ - consideration of principle of coherence
LEGISLATION CITED:	Civil Liability Act 2002 (NSW) Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW) Constitution Act 1902 (NSW) County Court (Jurisdiction) Act 1972 (Vic) Law Reform (Vicarious Liability) Act 1983 (NSW) Magistrates’ Court Act 1971 (Vic) Mental Health Act 1990 (NSW) Police Act 1990 (NSW)
CASES CITED:	Adams v Kennedy (2000) 49 NSWLR 78 Ali v Hartley Poynton Ltd [2002] VSC 113 Amalgamated Television Services Pty Ltd v Marsden (No. 2) (2003) 57 NSWLR 338 Appleton v Garrett [1996] P.I.Q.R 1 Avonhouse v Hornsby Shire Council (1998) 44 NSWLR 1 Backwell v AAA [1997] 1 VR 182 Baltic Shipping Co v Dillon (1993) 176 CLR 344 Brodie v Singleton Shire Council (2001) 206 CLR 512 Coloca v BP Australia Pty Ltd [1992] 2 VR 441 Commonwealth v Murray [1988] Aust Torts Reps 80,207 Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 Digital Pulse Pty Ltd v Harris (2002) 166 FLR 421 Douglas v Hello! Ltd (No. 3) [2005] 3 WLR 881 Fontin v Katapodis (1962) 108 CLR 177 Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 Graham v Robinson [1992] 1 VR 279 Gray v Motor Accident Commission (1998) 196 CLR 1 Harris v Digital Pulse Pty Ltd (2003) 56 NSWLR 298 Hill v Chief Constable of West Yorkshire [1989] AC 53 Hill v Van Erp (1995-97) 188 CLR 159 Houda v NSW [2005] NSWSC 1053 Hunter Area Health Service v Marchlewski (2000) 51 NSWLR 268 Hunter Area Health Service v Presland [2005] NSWCA 33 James v Hill [2004] NSWCA 301 Johnstone v Stewart [1968] SASR 142 Kuddus v Chief Constable of Leicestershire Constabulary [2002] 2 AC 122 Lamb v Cotogno (1987) 164 CLR 1 Lee v Kennedy [2000] NSWCA 153 Lippl v Haines (1989) 18 NSWLR 620 Midalco Pty Ltd v Rabenalt [1989] VR 461 Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 Neville v Halliday [1983] 2 VR 553 Plenty v Dillon (1991) 171 CLR 635 Port Stephens Shire Council v Tellamist Pty Ltd [2004] NSWCA 353; 235 LGERA 98 R v O’Neil (2001) 122 A Crim R 510 Rookes v Barnard [1964] AC 1129 S v The Attorney-General [2003] NZCA 149 Schumann v Abbot & Davis [1961] SASR 149 Shattock v Devlin [1990] 2 NSWLR 88 State of New South Wales v Lepore (2003) 212 CLR 511 State of New South Wales v Paige (2002) 60 NSWLR 371 State of New South Wales v Riley (2003) 57 NSWLR 496 Sullivan v Moody (2001) 207 CLR 562 Tame v New South Wales (2002) 211 CLR 317 TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 Thompson v Commissioner of Police [1998] QB 498 Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 Vezitis v McGeechan [1974] 1 NSWLR 718 Vignoli v Sydney Harbour Casino (2000) Aust Torts Reps 81-541 Wilkes v Wood (1763) 98 ER 489 Williams v Milotin (1957) 97 CLR 465 Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71 X v Bedfordshire County Council [1995] 2 AC 633 XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448
PARTIES:	State of New South Wales (Appellant) Dorothy Isabel Ibbett (Respondent)
FILE NUMBER(S):	CA 41119/04
COUNSEL:	J E Maconachie QC/K. Crysustomou (Claimant) J J Garnsey SC/B E Kinsella (Opponent) K M Richardson (Intervening for Attorney-General (NSW))
SOLICITORS:	I V Knight, Crown Solicitor (Claimant) James Fuggle (Opponent) H El Hage, Crown Solicitor's Office (Intervening for Attorney-General (NSW))

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 329/02
LOWER COURT JUDICIAL OFFICER:	Phegan DCJ