Sydney Graham Plenty v Michael Kenneth Dillon and Robyn Anne Will No. Scgrg-81-3582 Judgment No. 6372 Number of Pages 8 Trespass

[1997] SASC 6372

IN THE SUPREME COURT OF SOUTH AUSTRALIA

KELLY, J Supreme Court Master

Trespass - trespass to land - action for damages - trespass upon plaintiff's land by police officers purporting to serve process - aggravated and exemplary damages awarded - consequential damage for plaintiff's resultant medical condition awarded - discussion of law applying - cases considered and principles applied to factual circumstances - calculation of interest on damages award in circumstances of trespass occurring 19 years previous to assessment.

ADELAIDE, 8-9 and 11 September 1997 (hearing), 19 September 1997 (decision)

#DATE 19:9:1997

#ADD 22:9:1997

Appearances:

Plaintiff

Counsel: Mr Jonathon Wells QC

Solicitors: j.a. Carr & Co

Defendants :

Counsel: Mr W I Lines

Solicitors: Crown Solicitor (SA)

Order: judgment for plaintiff

JUDGE KELLY

This is an assessment of damages following the plaintiffs successful appeal to the High Court of Australia wherein the defendants were found to be liable to the plaintiff for trespass to his property at Napperby (see Plenty v Dillon 171 CLR 635). Subsequently the plaintiff's conviction for assaulting a police officer in the execution of his duty on the day in question in 1978 was quashed. Obviously for the reason that on the High Court's findings it could not be said that the officer was acting in the execution of his duty, he having been a trespasser at the outset.

To set the scene I quote from the judgment of Gaudron and McHugh JJ which details the facts surrounding that trespass:

"The first and second respondents, who are police officers, went to the appellant's farm on 5 December 1978 in order to serve a summons on his daughter and notices on the appellant and his wife. The summons and the notices were issued pursuant to the provisions of the Juvenile Courts Act 1971 (SA) ("the Act"). It was common ground in this Court that the officers did not have any express or implied consent to go on to the appellant's land. In earlier statements and correspondence, he had made it plain that, if the summons was to be served, it had to be served by post. The officers found the appellant, his wife and two other persons having a conversation in a double garage, some distance from a dwelling-house on the farm. The garage had no door, the opening on each side being separated by a "pillar" of galvanized iron four feet in width. The appellant and his wife refused to accept the summons and the notices. The first respondent placed them on the car seat in which the appellant was sitting. As the first and second respondents were leaving the farm, the appellant attempted to strike the first respondent with a piece of wood. After a struggle, the appellant was arrested. He was subsequently convicted of assaulting the first respondent in the execution of his duty.

As a result of the incident, the appellant sued the respondents in the Supreme Court of South Australia for damages for assault and trespass. The trial judge gave judgment for the respondents. His judgment was upheld by the Full Court. This appeal concerns only the question whether the respondents are liable for trespass to the appellant's land."

Of course the Court held that the respondents were in fact liable for trespass to Mr Plenty's land.

It is also appropriate that I reproduce their Honours' views which reflect upon the gravity of the trespass and the proper approach to the assessment of Mr Plenty's damages:

"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 unco-operative 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?" Law Quarterly Review, vol. 96 (1980) 12, at p.14, cited by Lord Edmund-Davies in Morris v Beardmore (87). 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".

I am respectfully inclined to those views myself and I do not see the other Justices expressing any dissent on that topic.

This being the starting point I now briefly turn to the case put by the plaintiff. He seeks both aggravated and exemplary damages for the trespass itself. He also claims consequential damage which can be categorised thus:

1. For the onset or really the exacerbation of an anxiety and, arguably, depressive illness described in the evidence and the medical reports.

2. For his being "disfellowshipped" (as he puts it) or his membership of his Church being terminated (as his Church puts it) based upon the fact of his conviction for assault and the circumstances surrounding same and related correspondence thereon.

3. For the temporary exacerbation of a back complaint.

4. For the "falling out" with one of his daughters and the tension created within his wider family because of the "disfellowshipping".

5. For his inability to make any decision regarding improvements to a commercial property owned by him whereby he could have earnt more rental than he has.

I think the above to identify all heads of damage sufficiently for the purpose of this judgment.

I here want to consider the law as it applies to the above heads. Firstly:

Aggravated and Exemplary Damages

In Francis Trindade's text on "The Law of Torts in Australia - second edition" at Page 295 thereof one finds these statements of principle.

(a) If the defendant commits a trespass to land in such circumstances as would severely embarrass or outrage the plaintiff there is no doubt that an award of aggravated damages can be made.

(b) Exemplary damages too, can be awarded in Australia against a defendant in an action for trespass to land. These damages are intended to punish the defendant for his conduct, not to compensate the plaintiff for his loss.

I think the various cases cited to me on this topic reflect the same views. I will only refer to one which I find the most useful. It is Lamb v Cotogno 164 CLR 1.

Reference is made therein to Uren v John Fairfax & Sons Pty Ltd 117 CLR
118. Whilst a libel action nevertheless its principle is applicable here. The High Court affirmed therein that in actions for tort exemplary damages may be awarded for conduct of a sufficiently reprehensible kind. Lamb v Cotogno goes on (in the reported judgment at Page 8) to say that exemplary damages are intended to punish the defendant for conduct showing a conscious and contumelious disregard for a plaintiff's rights and to deter him from committing like conduct again.

The judgment also deals with "aggravated" damages and points to the contrast in that these are compensatory in nature being awarded for injury to the plaintiffs feelings caused by insult, humiliation and the like. Exemplary damages are there as a punishment and deterrence. There are like comments in many other cases including Mayfair Ltd v Pears 1987 1 NZLR 459 which I will refer to shortly on another topic.

Looking at the comments of Gaudron and McHugh JJ in the appeal herein I gain an impression that they do see this case as calling for an award of both sets of damages. They speak of the likelihood of distress being caused to the plaintiff - appropriate to an award of aggravated damages - and they also speak of the need for granting effective remedies otherwise social disorder is bred particularly when the invader is a government official. They speak of police officers with "all the power of the State behind them". Here they seem to be in the realm of exemplary damages. Whatever, it is for me to make the decision, in accord with principle, as to whether aggravated and exemplary damages are appropriate.

Consequential Damages

Again I go to Trindade's text where this appears:

"The plaintiff will also be able to recover in an action for trespass to land damages in respect of any consequential loss which is a natural or reasonable consequence of the trespass".

I also return to Mayfair Ltd v Pears (above) where it is stressed that there is no absolute rule that an intentional trespasser is liable for all the consequences of his acts, nor is there an absolute rule, where damage would not have occurred but for the trespass, that the trespasser may escape liability in the absence of intent or foreseeability. There may be cases where it is reasonable that a trespasser should, on the basis of policy consideration be fairly held liable for quite unexpected damage directly resulting from an intentional trespass. On the other hand it would be unreasonable to adopt a rule that a trespasser should be liable for all damages arising from a trespass.

It seems to me that the test is, in the case of trespass to land at least, that consequential loss can be recovered on the basis of "natural and reasonable consequence" rather than on the test of "reasonable foreseeability". Be that as it may and as will turn out, the plaintiff succeeds on either test.

Now, I think that is the law applying in this case. I now turn to the facts. Mr Plenty is a rather mentally devastated man. The medical reports detail his problems. I do not intend to reproduce them here. Suffice to say there is really no argument against the medical proposition that Mr Plenty is in a state of serious depression which has gradually grown worse over many years. This depression has exhibited itself in many ways (insomnia, insecurity, feelings of persecution, lack of confidence, an amnesia attack and so on), and again I will not go into detail. There may also be a condition of anxiety present but by and large I think the term used by Dr Clayer "seriously depressed" describes the situation.

It would also seem that this illness will be hard to recover from if at all. The conclusion of this case will not, it appears, be the end of the depression. I suspect there may be some improvement but the medical people are certainly not confident.

How does Mr Plenty himself feel? Again, without detailing the evidence (and I accept he and his wife's veracity) he uses words like "depressed, insecure, downtrodden, lost confidence, devastated, humiliated" and so on. In relation to his being "disfellowshipped" (which, on his case, is a consequence of the trespass) he uses not dissimilar language - "shunned, offended, devastating, hurtful, the last straw" and so on. His wife speaks of her observations similarly.

What causes this "devastation, humiliation, depression"? To answer this one must go back to his earlier days when he lived in Western Australia. Prior to that time there is no evidence of a vulnerable personality but in 1968 problems did surface as a result of a court case involving an accident which prevented him from carrying on the family occupation of farming. The medical evidence as to his condition then has to be based largely on the versions of Mr Plenty and his wife and, like his doctors, I believe and accept them. In my own terms I would describe his condition after that incident as one involving anxiety, possibly some depression and certainly feelings of having been wronged by the legal system. But, as his wife says, he was coping and it is clear that his condition in those earlier years was nowhere near the extent of his serious depression and feelings now. Of course it might be argued that this was a progressive "disease" and would have occurred anyway. I think not. The facts do not support that view.

An extraordinary incident occurred after he and his family returned to Napperby. He sat for a drivers licence examination and answered every question correctly. He was accused of cheating. Then things got out of hand and for some reason (if that be the right word) he ended up in custody and accused of being mentally ill. All of this appears to have been an aberration on the part of the police. He was neither mentally ill or a cheat as his later second examination proved.

This, I would have thought, was an incident which, given his vulnerability, might have been expected to cause the utmost depression and anxiety. I am sure it upset him but, by and large, he continued on as before - still vulnerable but coping pretty well.

Then the incident in 1978 occurred. I accept his evidence and that of his wife as to the marked, even dramatic change for the worse in his mental condition. The medical opinion supports the view too that this incident "triggered", if you like, an exacerbation of his pre-existing problems. It is arguable that this is the first time that symptoms of depression appeared, anxiety being his main problem previously. Whatever be the truth I am satisfied that the events surrounding this trespass upon the plaintiff's property caused the marked exacerbation of his pre-existing illness and may well have brought about the actual onset of a depressive illness. This indeed was the "trigger", in my opinion, that led to much of the devastation and depression felt by the plaintiff today. But is his condition today largely a direct consequence of the trespass incident? Certainly his condition has been deteriorating over the years but these years have not been without incident either.

I have no doubt that being "disfellowshipped" was, too, an event which caused the utmost distress to the plaintiff and materially contributed to his "now" condition. Whether it can be regarded as of equal or more serious consequence than the trespass incident is a moot point. I think probably the honours are even in that respect but it must be remembered that the real exacerbation or possibly onset occurred after the trespass. It cannot be argued that it was really the church activity which triggered his problems. If this church incident were to be entirely divorced from the consequences of the trespass incident then I would have to assess damages in a very different light. Namely an assessment (difficult though it would be) of what effect the trespass had on the plaintiff as distinct from what effect both incidents had on the plaintiff. That is unnecessary because I am quite convinced of a causal link between the two. I will come to this in a moment.

There is another incident over a "tax warrant". This too must have been very upsetting and does seem divorced from the link of causation. To some extent the damages should be reduced because it is likely that this causally unrelated incident also added to the distress and depression of the plaintiff. But it pales into insignificance beside the two causally related incidents of the trespass and the church decision.

I return to the latter to explain its causality. Why was Mr Plenty "disfellowshipped"? I can come to no other conclusion than that his membership was terminated because of the Church's view that he had done considerable wrong in his conduct (including his letter writing) surrounding the trespass incident and his conviction for assault. Attempt has been made to suggest that the termination of his membership was due to other factors. I reject that view as being most unlikely on the Plentys' evidence (which I accept) and in light of the correspondence between they and the church. I am convinced that a causal link has been demonstrated.

So I go back to my initial question - "what caused Mr Plenty's feelings of devastation, humiliation and his serious depression"?

The answer, as a firm probability, lies in the incident of the trespass to land which, causally, brought about the church incident. These are the two basic and overwhelmingly major elements in his illness. Of the two it was the defendant's trespass that caused either the substantial exacerbation or the onset of the progressive depressive illness which in turn was exacerbated by the church incident and the two are causally related.

But was this church incident a natural and reasonable consequence or (if that test were not correct) reasonably foreseeable? Indeed is the illness itself of that consequence or foreseeability?

As to the illness I think that was both foreseeable and probable. This was an entry upon land after due notice was given that the entry was unwanted.

As Gaudron and McHugh JJ said:

"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".

If distress was likely is it unreasonable or improbable that something more serious than distress, namely a depressive illness might well be the result? I think not. Not only was such a natural and probable consequence but reasonably foreseeable as well. I do not go too far, I think, in stating the obvious notoriety of the smallest and sometimes inconsequential action or event that results in a person becoming depressed. This was much more than that as the learned Justices were at pains to point out.

I see the church action as being in much the same category. Was it not reasonable to expect that a man being convicted of assault in the circumstances here pertaining, living in a small community and being a member of a church (whether the defendants actually knew it or otherwise) might be regarded by his community as a serious wrongdoer and, in the eyes of his church, a serious sinner? That the church might well take action as was done here? I think this event was a natural and probable consequence and indeed foreseeable and the defendants should be liable for the damages flowing from both incidents.

I have now come to a point where discussion of all heads of damage should be considered:

(a) Aggravated Damages

Moved by the Justices' remarks in the High Court and by the hearing of this assessment myself I am satisfied that the plaintiff should receive a substantial sum under this head. The plaintiff was caused distress. Being vulnerable anyway that distress was very substantial indeed. He felt totally humiliated in front of family, friends and neighbours. He felt very strongly about his right to privacy and this was invaded. He was terrified and bewildered. He felt like dirt - just a nobody - lost everything. He gave evidence of these matters and I accept that evidence.

Knowing full well the difficulty of attributing a money amount as compensation and being aware that different minds may produce different results in this field I think a sum of $15,000 is appropriate.

(b) Exemplary Damages

I think these are called for in a significant sum but somewhat less than if the police had entered "come what may" and in a bullying fashion. That was not the case here and I have regard to the submissions of defendant's counsel in this regard. He put it to me that this was not a case for the award of damages in any event but I disagree. As their Honours said "nothing breeds social disorder as quickly as the sense of injustice which is apt to be generated by the unlawful invasion of a persons rights, particularly when the invader is a government official". The term "contumelious disregard" used in the cases must be viewed in this light. However, as I have said matters such as Mohr J's findings as to the behaviour of the police which go in their favour should be taken into account when expressing disapproval in the form of damages. I would allow $5,000 under this head.

(c) Damages for the "back" incident

This man's pre-existing "bad back" flared up at the time of the incident. Not caused by the struggle or chase but initiated by the trespass itself and the fear and panic, if you like, caused by that trespass. Again I accept the plaintiff. It was not a long continuing disability but I accept that it was painful and debilitating over the period he nominated. I think $2,000 is sufficient compensation.

(d) Estrangement from his daughter, etc.

I do not award damages here. I think what led to this estrangement - I will not detail it here - could not possibly come under the heading of "natural and reasonable consequence".

(e) Loss of Rental

I award nothing here. It was not pleaded and the evidence as to it was too sparse and uncertain to justify any award for economic loss.

(f) The Depressive Illness

I have dealt with this at some length. Two basic matters cause the plaintiffs present and likely continuing bad depression and its effects upon him. That condition relates back to the "trigger" of the trespass and to the causally related church incident as I have explained earlier. The combination leave the plaintiff in his present state. And it is a very serious state as deposed to by the doctors and set out in the various reports tendered by counsel. It has been going on for approximately nineteen years and, I accept, worsening in that time. He is now a very miserable man and that seems likely to continue. The end of this case and his battle with the Church may assist and he seems hopeful of that. But it cannot be denied that for the last 19 years he has suffered severely in the area of happiness and contentment otherwise to be described as pain and suffering. That seems likely to continue in the future it being so deeply rooted after all these years.

It is an extremely difficult task to set upon a figure that fairly compensates him and does not operate unfairly on the defendants. Neither too much nor too little is the desire. Minds will differ but mine says a figure of $100,000 is proper compensation under this head.

Let me just mention here that the defendants argued that the plaintiff has to a large extent brought much of this upon himself in the sense that the trespass was a minor player in the scheme of things. It was really the "assault" that caused his problems and if he had behaved responsibly then much if not all of his present problems would be non-existent. Again I refer back to what Justices Gaudron and McHugh said about the incident:

"It is not to the point that the appellant was unco-operative or even unreasonable. The appellant was entitled to resist their entry".

I gain from this a view on the part of their Honours that even with Mohr J's findings as to the "assault" this was no more than the exercise of a right to resist on the part of the plaintiff. If I am wrong in this I simply look at what Mohr J had to say about this incident and the defendants actions within it:

"The plaintiff armed with the piece of wood raised it above his right shoulder and followed Dillon and Will. For some reason Will looked back and saw the plaintiff with the piece of wood raised and within striking distance of Dillon. She gasped. Dillon looked back and seeing what the plaintiff was about proceeded to disarm him".

It is to be noted that no suggestion is made in that passage or this case that the plaintiff had any intent to strike nor did he ever attempt to strike. No doubt it all happened in a very short time span and the officers came to a conclusion that at least one of them was in danger. But importantly there is no finding of any attempt or any intent to strike. I view this incident as nothing more than involving an entitlement to resist the officers entry on his land. I accept Mr Wells QC submissions in this respect and generally on the topic.

(g) Interest

I think an award is justified. The transcript will evidence my concerns in this area and Mr Wells' sensible concession. I think I should calculate it as a lump sum based on an approximate 10 year period at a rate of 4% much in line with Mr Wells suggestion. I have generally rounded the figure obtained by that method.

I enter judgment for the plaintiff in the sum of $122,000 plus interest which I fix at $45,000.

I will hear the parties as to costs in the event that this order does not meet with their approval but I will order now (subject to their right within seven days to otherwise apply) that the defendants pay the costs of the assessment to be agreed or taxed.