The State of Western Australia v Cunningham [No 3]
[2018] WASCA 207
•23 NOVEMBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: THE STATE OF WESTERN AUSTRALIA -v- CUNNINGHAM [No 3] [2018] WASCA 207
CORAM: BUSS P
MURPHY JA
PRITCHARD JA
HEARD: 15 MAY 2018
DELIVERED : 23 NOVEMBER 2018
FILE NO/S: CACV 11 of 2017
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant/First Cross-Respondent
AND
ROBERT LEE CUNNINGHAM
First Respondent/Second Cross-Respondent
CATHERINE MARY ATOMS
Second Respondent/Third Cross-Respondent
SIMON TRAYNOR
Third Respondent/First Cross-Appellant
PETER JAMES CLARK
Fourth Respondent/Second Cross-Appellant
GLENN ALEXANDER CALDWELL
Fifth Respondent/Third Cross-Appellant
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: DAVIS DCJ
Citation: CUNNINGHAM -v- TRAYNOR [2016] WADC 168
File Number : CIV 3389 of 2011
Catchwords:
Torts - Battery - Misfeasance in public office - False imprisonment - Malicious prosecution - Malicious conduct of police officers - Non‑malicious conduct of police officers - Police Act 1892 (WA) - Section 137(5) - Solidary liability
Damages - Compensatory damages - Aggravated damages - Exemplary damages - Whether damages ought to have been apportioned
Costs - Whether costs ought to have been apportioned
Legislation:
Police Act 1892 (WA), s 137, s 138
Result:
Appeal dismissed
Cross-appeal dismissed
Category: A
Representation:
Counsel:
| Appellant/First Cross-Respondent | : | Mr G T W Tannin SC & Ms E O'Keeffe |
| First Respondent/Second Cross-Respondent | : | Mr M D Cuerden SC & Mr T J Porter |
| Second Respondent/Third Cross-Respondent | : | Mr M D Cuerden SC & Mr T J Porter |
| Third Respondent/First Cross-Appellant | : | Mr A T Schlicht & Ms K A Vernon |
| Fourth Respondent/Second Cross-Appellant | : | Mr A T Schlicht & Ms K A Vernon |
| Fifth Respondent/Third Cross-Appellant | : | Mr A T Schlicht & Ms K A Vernon |
Solicitors:
| Appellant/First Cross-Respondent | : | State Solicitor for Western Australia |
| First Respondent/Second Cross-Respondent | : | Maurice Blackburn |
| Second Respondent/Third Cross-Respondent | : | Maurice Blackburn |
| Third Respondent/First Cross-Appellant | : | Metaxas Legal |
| Fourth Respondent/Second Cross-Appellant | : | Metaxas Legal |
| Fifth Respondent/Third Cross-Appellant | : | Metaxas Legal |
Case(s) referred to in decision(s):
A v New South Wales [2007] HCA 10; (2007) 230 CLR 500
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27
Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568
Attorney‑General for New South Wales v Perpetual Trustee Co Ltd [1952] HCA 2; (1952) 85 CLR 237
Balog v Independent Commission Against Corruption [1990] HCA 28; (1990) 169 CLR 625
Barisic v Devenport [1978] 2 NSWLR 111
Baume v The Commonwealth [1906] HCA 92; (1906) 4 CLR 97
Baxter v Obacelo Pty Ltd [2001] HCA 66; (2001) 205 CLR 635
Bell v The State of Western Australia [2004] WASCA 205; (2004) 28 WAR 555
British American Tobacco Australia Ltd v The State of Western Australia [2003] HCA 47; (2003) 217 CLR 30
Bull v Attorney‑General (NSW) [1913] HCA 60; (1913) 17 CLR 370
Canterbury Bankstown Rugby League Football Club Ltd v Rogers [1993] Aust Torts Reports 81‑246
Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427
Crampton v Nugawela (1996) 41 NSWLR 176
Cunningham v Traynor [2016] WADC 168
Darcy v State of New South Wales [2011] NSWCA 413
Enever v The King [1906] HCA 3; (1906) 3 CLR 969
Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1
Hall v Bonnett [1956] SASR 10
Haskins v Commonwealth [2011] HCA 28; (2011) 244 CLR 22
Henry v Thompson [1989] 2 Qd R 412
Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10; (2013) 247 CLR 613
IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1
Jarratt v Commissioner of Police for NSW [2005] HCA 50; (2005) 224 CLR 44
Johnstone v Stewart [1968] SASR 142
Khoury v Government Insurance Office (NSW) [1984] HCA 55; (1984) 165 CLR 622
Lackersteen v Jones (1988) 92 FLR 6
Lamb v Cotogono [1987] HCA 47; (1987) 164 CLR 1
Little v The Commonwealth [1947] HCA 24; (1947) 75 CLR 94
Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522
New South Wales v Ibbett [2006] HCA 57; (2006) 229 CLR 638
Nilon v Bezzina [1988] 2 Qd R 420
Northern Territory of Australia v Mengel [1995] HCA 65; (1995) 185 CLR 307
Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd [1986] HCA 34; (1986) 160 CLR 626
Pollack v Volpato [1973] 1 NSWLR 653
Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277
Ramsey v Larsen [1964] HCA 40; (1964) 111 CLR 16
Rookes v Barnard [1964] AC 1129
State of New South Wales v Briggs [2016] NSWCA 344; (2016) 95 NSWLR 467
State of New South Wales v Radford [2010] NSWCA 276; (2010) 79 NSWLR 327
State of New South Wales v Williamson [2011] NSWCA 183
State of South Australia v Kubicki (1987) 46 SASR 282
SZTAL v Minister for Immigration and Citizenship [2017] HCA 34; (2017) 347 ALR 405
The Commonwealth v Mewett [1997] HCA 29; (1997) 191 CLR 471
The State of Western Australia v Cunningham [2017] WASCA 119
Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664
Thompson v Australian Capital Television Pty Ltd [1996] HCA 38; (1996) 186 CLR 574
Tickle Industries Pty Ltd v Hann [1974] HCA 5; (1974) 130 CLR 321
Trobridge v Hardy [1955] HCA 68; (1955) 94 CLR 147
Uren v John Fairfax & Sons Ltd [1966] HCA 40; (1966) 117 CLR 118
Watkins v State of Victoria [2010] VSCA 138; (2010) 27 VR 543
Whitfield v De Lauret & Co Ltd [1920] HCA 75; (1920) 29 CLR 71
XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd [1985] HCA 12; (1985) 155 CLR 448
Table of Contents
Buss P & Murphy JA
Introduction
Background
The evening of 1 November 2008
After midnight - 2 November 2008
Officer Traynor grabbing Ms Atoms' arms
Officers Traynor and Clark arresting Dr Cunningham and taking him to the police van
Officer Clark pushing Ms Atoms away
The police calling for assistance
Mr Caldwell Tasering Ms Atoms and Dr Cunningham
After the tasering - arrest of Ms Atoms, removal to police station and charges laid
Prosecution of Ms Atoms and Dr Cunningham
The hearing and dismissal of the criminal charges
Primary proceedings
Ms Atoms' pleading
Battery of Ms Atoms
False imprisonment of Ms Atoms
Misfeasance in public office by Officer Traynor with respect to Ms Atoms
Misfeasance in public office by Mr Caldwell in relation to Ms Atoms
Malicious prosecution of Ms Atoms by Officer Clark
Dr Cunningham's pleading
Battery of Dr Cunningham
False imprisonment of Dr Cunningham
Misfeasance in public office by Officers Traynor and Clark in relation to Dr Cunningham
Misfeasance in public office by Mr Caldwell in relation to Dr Cunningham
Malicious prosecution of Dr Cunningham by Officer Clark
The respondents' defence and Officer Clark's counterclaim
The primary judge's decision - overview
Ms Atoms
Dr Cunningham
Final orders
The grounds of appeal and the State's case on the appeal
The grounds in relation to Dr Cunningham
The grounds in relation to Ms Atoms
Costs
The State's arguments
Orders wanted by the State
The Traynor/Clark/Caldwell cross-appeal
The judge's findings
The issues and the questions of malice
The findings of malice
The police officers' conduct - Ms Atoms
Causation - Ms Atoms
The police officers' conduct - Dr Cunningham
Causation - Dr Cunningham
The Police Act
Sections 137 and 138 of the Police Act
The approach to construction
Background to s 137
Crown immunity
Exemplary damages
Aggravated damages
Solidary liability
Early legislative changes
The explanatory memorandum and the second reading speech
The State's contentions on the meaning of 'liable' in s 137(5) of the Police Act
The proper construction of s 137 and s 138
Watkins v State of Victoria
Some general observations on the operation of s 137 of the Police Act
The operation and application of s 137 in this case - disposition of the appeal
Other matters
Conclusion
Pritchard JA
The proper construction of s 137(5)(a)
The ordinary meaning of the words used in s 137(5)(a)
The content of the phrase 'liable for a tort'
Contextual considerations - legislative history and purpose
Why the State's contentions as to the meaning of s 137(5) cannot be accepted
BUSS P & MURPHY JA:
Introduction
This is an appeal against a decision of Davis DCJ in Cunningham v Traynor[1] (primary decision). By that decision, the primary judge upheld various claims in tort by the first respondent (Dr Cunningham) and the second respondent (Ms Atoms) against the appellant (State), and against certain members of the Western Australia Police, being the third respondent (Officer Traynor), the fourth respondent (Officer Clark) and the fifth respondent (Mr Caldwell). Mr Caldwell is no longer a police officer.[2] Officer Traynor, Officer Clark and Mr Caldwell have cross‑appealed in this matter.
Background[3]
[1] Cunningham v Traynor [2016] WADC 168.
[2] Primary decision [2].
[3] The background is taken from the findings made by the judge in the primary decision, unless otherwise indicated.
As at 1 November 2008, Dr Cunningham and Ms Atoms were engaged, and had recently moved from New South Wales to Western Australia and were residing in the Fremantle area.[4] Dr Cunningham took up a position lecturing at the law school at the University of Western Australia, and Ms Atoms commenced study and work at Murdoch University. She had also recently been offered employment as a community engagement officer at the Water Corporation.[5]
The evening of 1 November 2008
[4] Primary decision [8], [11].
[5] Primary decision [9], [12].
On the night of 1 November 2008, Dr Cunningham and Ms Atoms rode their bicycles into the centre of Fremantle for dinner to celebrate Dr Cunningham's birthday and Ms Atoms' offer of employment. They each consumed one small bottle of beer at dinner.[6]
[6] Primary decision [13].
During the course of their meal, they arranged to meet a friend afterwards at Little Creatures Brewery in Fremantle. While at Little Creatures, both Ms Atoms and Dr Cunningham had another beer.[7]
After midnight - 2 November 2008
[7] Primary decision [14] - [15].
On 2 November 2008, just prior to 1.00 am, Dr Cunningham and Ms Atoms were walking back from Little Creatures Brewery, with Ms Atoms' friend, to where they had parked their bicycles in order to go home. On their way, they noticed three young people (two men and one woman) sitting on the low wall of a garden bed which ran along the outside of the Esplanade Hotel in Essex Street.[8]
[8] Primary decision [16] - [17].
Dr Cunningham and Ms Atoms observed one of the men fall backwards into the bushes in the garden bed. The other man went to help him but was either pulled or fell into the garden bed himself. The first man got out, but the second remained in the garden bed.[9]
[9] Primary decision [17].
Despite being strangers, Dr Cunningham and Ms Atoms stopped to help the group of young people. Ms Atoms initially stood on the footpath giving directions. Dr Cunningham, with the assistance of another person who arrived on the scene, tried to pull the man out of the garden bed. Ms Atoms assisted by grabbing his legs. Dr Cunningham, however, was then pushed into the garden bed by another male who subsequently went into the garden bed himself. At this time, Ms Atoms moved back to the footpath with her friend and stood there watching.[10]
[10] Primary decision [17] - [18].
Officers Traynor and Clark then arrived on the scene. Officer Traynor spoke to Ms Atoms. Officer Clark, after having attended to the other people at the scene, joined Ms Atoms and Officer Traynor.[11]
[11] Primary decision [25] - [26].
There was a dispute before the primary judge about what was discussed or said between Ms Atoms and the two police officers. It was alleged against Ms Atoms that she said, 'Haven't you got anything better to f… do. Go and arrest some proper criminals [sic]'.[12] It was alleged that these words, and the way they were said, constituted disorderly behaviour. Ms Atoms denied that she swore or said these words.[13]
[12] Primary decision [27].
[13] Primary decision [27].
The judge found that Ms Atoms did not use these words at the scene.[14] Rather, the judge found that Officer Traynor accused Ms Atoms of actually having been in the bushes. He first mentioned that she would have to pay for damage to the bushes and then told her that he had been watching her jump in and out of the bushes. Ms Atoms spoke up for herself and explained to Officer Traynor that she had been stopping to help and had not been in the bushes. She was not angry or aggressive when she spoke to Officer Traynor. She was calm and composed. Officer Traynor then said something to Ms Atoms about having to get out of Fremantle. Ms Atoms responded by telling Officer Traynor that she lived in Fremantle and did not understand. At this stage, the two officers had in mind to issue Ms Atoms a move on notice, motivated by the fact that she had spoken up and asserted her innocence, although they did not ask for her name and address to do so.[15]
Officer Traynor grabbing Ms Atoms' arms
[14] Primary decision [450].
[15] Primary decision [461] ‑ [467], [473] ‑ [474], [484] - [485].
Ms Atoms, not understanding what she was to do, tried to walk away from the officers. This irritated Officer Traynor, who grabbed Ms Atoms by the arm. Ms Atoms told Officer Traynor that he was scaring her and she did not understand him because he was telling her to go, but not letting her leave. Officer Traynor released his hold on Ms Atoms and said something which reinforced to Ms Atoms that she needed to leave, and so she tried to leave again.[16]
[16] Primary decision [28], [198] - [199], [475] ‑ [477].
Officer Traynor then aggressively and forcefully grabbed Ms Atoms' arm a second time. Ms Atoms told Officer Traynor that he was hurting her and asked him to let her go. With this second grab, Ms Atoms was detained and was clearly not free to leave.[17]
Officers Traynor and Clark arresting Dr Cunningham and taking him to the police van
[17] Primary decision [478] ‑ [480].
During this time, Dr Cunningham had gotten out of the garden bed and walked up to the two officers and Ms Atoms.[18] He identified himself to Officer Traynor as a solicitor and said, 'I have one question. Is she subject to arrest or a move on order?'[19] CCTV footage showed Officer Traynor holding Dr Cunningham's left arm, and that Officer Clark held Dr Cunningham's right arm or side.[20] CCTV footage showed that Dr Cunningham was turned around by Officer Traynor who let go of Ms Atoms as he did so.[21] Officer Traynor let go of Dr Cunningham and then Officer Clark took hold of both Dr Cunningham's arms and put them behind his back.[22] This is when Dr Cunningham was arrested.[23] Officers Traynor and Clark then pushed Dr Cunningham from the footpath onto the road on Essex Street.[24] Neither Officer Traynor nor Officer Clark answered Dr Cunningham's inquiry.[25]
[18] Primary decision [26], [31].
[19] Primary decision [205], [528] - [529].
[20] Primary decision [207] - [208], [212].
[21] Primary decision [215].
[22] Primary decision [219].
[23] Primary decision [500].
[24] Primary decision [32], [220] - [222], [530].
[25] Primary decision [533].
What occurred on the road on Essex Street was not recorded on CCTV. It was not disputed, however, that Dr Cunningham was pushed towards where Officers Traynor and Clark had parked their police van. He had at least one handcuff on one of his arms, and was kicked with what was called a 'knee strike'.[26]
[26] Primary decision [33].
Ms Atoms followed Dr Cunningham as he was being pushed from the footpath and taken to the police van. There was an issue at first instance as to what she did as she followed. Her evidence was that she placed her hands on Dr Cunningham's back. Officer Clark's evidence was that she had grabbed hold of him (Officer Clark), 'jumped' on his (Officer Clark's) back, and subsequently picked up the handcuffs he had dropped and threw them across the street.[27] Officer Clark's evidence that Ms Atoms grabbed his arm and jumped on his back was the subject of a counterclaim made by Officer Clark, which was ultimately rejected by the judge.[28]
Officer Clark pushing Ms Atoms away
[27] Primary decision [36], [621].
[28] Primary decision [588], [590], [662], [1150].
CCTV footage then showed that Officer Clark pushed Ms Atoms away.[29] Ms Atoms was pushed away at a point in time after she had been let go by Officer Traynor (see [13] above), and before the tasering event referred to below.[30]
The police calling for assistance
[29] Primary decision [37], [228] - [229].
[30] As to the pushing of Ms Atoms in the overall sequence of events, see primary decision [198] - [199], [201] ‑ [215], [228] ‑ [229], [587] ‑ [588], [602], [699] ‑ [670].
At around 12.58 am, following unsuccessful attempts to get Dr Cunningham to go to ground, Officer Traynor made a call for assistance. Various officers responded, including Mr Caldwell. A few minutes later, Officer Traynor radioed again to say '[w]e have enough units here, you can cancel any further'.[31]
Mr Caldwell Tasering Ms Atoms and Dr Cunningham
[31] Primary decision [42] - [43], [583].
Upon his arrival at the scene in Essex Street, Mr Caldwell tasered Ms Atoms once and then Dr Cunningham once. Both Dr Cunningham and Ms Atoms dropped to the ground. Mr Caldwell had used the taser's 'drive stun mode', which involves physically placing the power handle against a person's body. This causes temporary uncontrollable contraction of the muscle tissue, resulting in physical incapacitation of the person.[32]
After the tasering - arrest of Ms Atoms, removal to police station and charges laid
[32] Primary decision [44] - [45], [654], [669], [741] ‑ [742].
After the tasering, Ms Atoms was arrested.[33] She, and Dr Cunningham, were handcuffed, picked up from the road surface and placed in the back of the police van by unknown police officers.[34] They were taken to the Fremantle Police Station where they were processed. Dr Cunningham was brought into the lock‑up at 1.11 am. His handcuffs were removed and he was placed into a holding cell. Ms Atoms was brought in at around 1.22 am.[35]
[33] Primary decision [542].
[34] Primary decision [719] - [720], [743] (Ms Atoms), primary decision [726], [744] (Dr Cunningham) and primary decision [48] (both).
[35] Primary decision [48] ‑ [50].
Both Ms Atoms and Dr Cunningham were charged with the offence of obstructing a public officer in the performance of the officer's functions contrary to s 172(2) of the Criminal Code (WA). They were charged at around 2.00 am, were granted bail shortly after and signed their bail papers at around 2.08 am and 2.09 am.[36]
[36] Primary decision [58] ‑ [59].
The lock‑up footage showed that Ms Atoms left the lock‑up at 2.10 am, and Dr Cunningham left at 2.13 am.[37]
Prosecution of Ms Atoms and Dr Cunningham
[37] Primary decision [60].
On the morning of 2 November 2008, Ms Atoms and Dr Cunningham returned to Fremantle Police Station to speak to the Sergeant in charge on the night before (Sergeant Leahy), in an unsuccessful attempt to get the police to apologise and withdraw the charges.[38]
[38] Primary decision [65].
On 4 November 2008, Officer Traynor sent a draft of his witness statement to Officer Clark, and asked whether there was anything else he needed to add or whether there was anything he should take out. Also on 4 November 2008, Officer Clark prepared his own witness statement, a statement of material facts, and a prosecution brief which he sent to Sergeant Leahy. Each of the officers then witnessed each other's written statements, which bear the date 4 November 2008. Finally, a prosecution notice for Dr Cunningham and Ms Atoms was produced and dated 4 November 2008.[39]
[39] Primary decision [66] ‑ [68], [70].
It followed that Officer Clark was the investigating officer who initiated and maintained the charges against Dr Cunningham and Ms Atoms.[40]
The hearing and dismissal of the criminal charges
[40] Primary decision [2], [789], [791].
The trial of the criminal charges against Ms Atoms and Dr Cunningham was originally listed to take place on 20 July 2009, but it was adjourned because there were issues raised as to the adequacy of disclosure by the prosecution. The charges were eventually heard in the Magistrates Court on 29 April 2010 and dismissed.[41]
[41] Primary decision [71].
The circumstances of the hearing and dismissal of the charges, are that the prosecutor at the trial, who was not Officer Clark:[42]
(a)stated that he would call two witnesses, being Officers Clark and Traynor, and play the CCTV footage;
(b)agreed that the hearing would take about two days;
(c)called Officer Clark who gave evidence and was cross‑examined;
(d)played the CCTV footage;
(e)after the evidence of Officer Clark and the playing of the CCTV footage, elected not to call any further evidence in the case; and
(f)after counsel for Dr Cunningham and Ms Atoms had made a no case submission, made no submissions opposing the application.
[42] Primary decision [72].
Following this, the prosecution against Dr Cunningham and Ms Atoms, in effect, collapsed.[43]
[43] Primary decision [74].
Primary proceedings
Dr Cunningham and Ms Atoms commenced proceedings in the District Court against Officer Traynor, Officer Clark, Mr Caldwell and the State. Their pleaded case is set out below.
Ms Atoms' pleading
Battery of Ms Atoms
Ms Atoms alleged that police officers wrongly, and without lawful excuse, committed battery of her as follows:
1.By Officer Traynor on the first occasion when he grabbed her wrist, to stop her moving.[44]
2.By Officer Traynor on the second occasion when he grabbed her, until he let her go when he took hold of Dr Cunningham.[45]
3.By Officer Clark when he subsequently grabbed and pulled her towards him, and then pushed her away.[46]
4.By two police officers (other than Traynor and Clark) grabbing her wrists and forcing her arms up her back, and holding them, after Officer Traynor had made the call for police assistance.[47]
5.By Mr Caldwell tasering Ms Atoms.[48]
6.By unknown police officers picking her up, roughly leading her and placing her in the police van, in the course of which she was dropped and 'impacted the road'.[49]
[44] Further amended statement of claim, pars 19, 60(a); BB 270, 282.
[45] Further amended statement of claim, pars 25(a), 28(b), 60(b); BB 271 - 272, 282.
[46] Further amended statement of claim, pars 33, 60(c); BB 273, 282.
[47] Further amended statement of claim, pars 38, 60(d); BB 273, 282.
[48] Further amended statement of claim, pars 39, 41, 60(e), 60(f); BB 273 - 274, 282.
[49] Further amended statement of claim, pars 46, 60(g); BB 275, 282.
Ms Atoms claimed damages for each of the pleaded batteries.[50]
False imprisonment of Ms Atoms
[50] Further amended statement of claim, par 62; BB 282.
Ms Atoms alleged that she was wrongfully imprisoned and deprived of her liberty by police officers: [51]
(a)for the period starting from when Officer Traynor grabbed her a second time until he let her go when he took hold of Dr Cunningham; and
(b)for the period commencing with the two unknown police officers grabbing her wrists and forcing her arms up her back and holding them, prior to her being tasered,[52] and ending with her release from the Fremantle police station at about 2.00 am on the morning of 2 November 2008.
[51] Further amended statement of claim, par 87; BB 289. See also the reference to 'claim' in primary decision [1069].
[52] It should be reiterated, however, that by the end of the trial it was common ground that she was not arrested until after she had been tasered: primary decision [592].
Ms Atoms alleged that the State was liable in respect of her false imprisonment. There was no express plea for exemplary damages in that regard.[53]
Misfeasance in public office by Officer Traynor with respect to Ms Atoms
[53] Further amended statement of claim, par 88; BB 289.
Ms Atoms alleged that Officer Traynor engaged in misfeasance in public office causing her injury by engaging in the conduct of grabbing Ms Atoms on the first occasion and then grabbing her on the second occasion, up until the point when he let her go when he took hold of Dr Cunningham. Ms Atoms claimed damages, including exemplary damages.[54]
Misfeasance in public office by Mr Caldwell in relation to Ms Atoms
[54] Further amended statement of claim, pars 67 - 70; BB 284 - 285.
Ms Atoms alleged that by tasering her, Mr Caldwell engaged in misfeasance in public office. Ms Atoms claimed damages, including exemplary damages.[55]
Malicious prosecution of Ms Atoms by Officer Clark
[55] Further amended statement of claim, pars 71 - 74; BB 285 - 286.
Ms Atoms alleged that Officer Clark maliciously and without reasonable cause prosecuted Ms Atoms, for which she claimed damages, including exemplary damages.[56]
Dr Cunningham's pleading
Battery of Dr Cunningham
[56] Further amended statement of claim, pars 91 - 93; BB 290 - 291.
Dr Cunningham alleged that police officers wrongly, and without lawful excuse, committed battery of him as follows:
1.By Officer Clark when he first grabbed Dr Cunningham's right arm, with the battery continuing up to the point in time when Dr Cunningham fell to the ground after being tasered.[57]
2.By Officer Traynor when he first grabbed Dr Cunningham's left arm, with the battery continuing right up to the time when Dr Cunningham fell to the ground after being tasered.[58]
3.Mr Caldwell tasering him.[59]
4.When two unknown police officers picked him up from the ground, roughly leading him and placing him in the police van.[60]
[57] Further amended statement of claim, pars 28(a), (c), 31, 34, 37, 64(a); BB 272 - 273, 283.
[58] Further amended statement of claim, pars 28(b) - (c), 31, 34 - 35, 37, 64(b); BB 272 - 273, 283.
[59] Further amended statement of claim, pars 43, 64(c); BB 274, 283.
[60] Further amended statement of claim, pars 46, 64(d); BB 275, 283.
Dr Cunningham claimed damages for each of the pleaded batteries.[61]
False imprisonment of Dr Cunningham
[61] Further amended statement of claim, par 66; BB 284.
Dr Cunningham alleged that he was wrongfully imprisoned and deprived of his liberty by police officers, starting from the period when Officer Clark first grabbed him, and ending with his release from the Fremantle police station at about 2.00 am on the morning of 2 November 2008.[62]
[62] Further amended statement of claim, pars 28(a), 50, 89; BB 277, 276, 290.
Dr Cunningham alleged that the State was liable to him in respect of his false imprisonment. There was no express plea for exemplary damages in that regard. [63]
Misfeasance in public office by Officers Traynor and Clark in relation to Dr Cunningham
[63] Further amended statement of claim, par 90; BB 290.
Dr Cunningham alleged that each of Officers Traynor and Clark engaged in misfeasance in public office causing Dr Cunningham injury when each Officer grabbed his arm, right up to the time when Dr Cunningham fell to the ground after being tasered. Dr Cunningham claimed damages, including exemplary damages.[64]
Misfeasance in public office by Mr Caldwell in relation to Dr Cunningham
[64] Further amended statement of claim, pars 75 - 82; BB 286 - 288.
Dr Cunningham alleged that by tasering Dr Cunningham, Mr Caldwell engaged in misfeasance in public office, and Dr Cunningham claimed damages, including exemplary damages.[65]
Malicious prosecution of Dr Cunningham by Officer Clark
[65] Further amended statement of claim, pars 83 - 86; BB 288 - 289.
Dr Cunningham alleged that Officer Clark maliciously and without reasonable cause prosecuted him, for which he claimed damages, including exemplary damages.[66]
The respondents' defence and Officer Clark's counterclaim
[66] Further amended statement of claim, pars 94 - 96; BB 291 - 292.
Officer Traynor, Officer Clark, Mr Caldwell and the State all denied liability, and claimed that all police officers acted lawfully and fairly. Officer Clark also counterclaimed for damages on the basis of two alleged assaults and battery by Ms Atoms on him,[67] for grabbing his arm and for 'jumping' on his back.[68]
The primary judge's decision - overview
[67] Primary decision [3].
[68] Primary decision [1153] - [1154].
The primary judge found in favour of Dr Cunningham and Ms Atoms, and dismissed Officer Clark's counterclaim. There are issues in the appeal as to the proper construction of the judge's reasons. The findings made by her Honour, on the proper construction of her reasons as a whole, are set out in [77] ‑ [97] below. At this point, it is convenient to note the following matters arising out of her Honour's reasons.
Her Honour said:[69]
[I]t does seem to me that I do need to make a separate determination of the damages for each tort, because of the provisions of s 137 of the Police Act and the submissions made to me … that if one of the first three defendants was found to have engaged in battery and misfeasance in public office because of a finding of malice, the State's position is, although not pleaded, that judgment should not be entered against the State because of the existence of malice.
[69] Primary decision [836].
In that regard, the judge made the findings referred to below, and also said that a similar apportionment should be applied to special damages.[70]
Ms Atoms
[70] Primary decision [922], [1101]. Her Honour also said that Dr Cunningham's costs ($600) of the malicious prosecution should be 'apportioned' to the malicious prosecution: primary decision [923].
Her Honour found that:
1.Officer Traynor should pay $1,000 for general damages for the (malicious) battery involving the two occasions of grabbing her wrist.[71]
2.Ms Atoms was also entitled to general damages for the other torts in the total sum of $135,000.[72]
3.The $135,000 figure for general damages should be apportioned as to:[73]
(a)the (malicious) battery by Mr Caldwell for tasering: $30,000;
(b)the malicious prosecution by Officer Clark: $15,000;
(c)the (non‑malicious) battery by Officer Clark in pushing her away: $30,000;
(d)the (non‑malicious) battery of handling and handcuffing her by the unknown officers after tasering: $30,000; and
(e)the false imprisonment: $30,000.
[71] Primary decision [1073].
[72] Primary decision [1077].
[73] Primary decision [1070], [1077].
The State was liable for the torts referred to in pars (c), (d) and (e) above.[74]
[74] Primary decision [76], [745], [754], [1069] - [1070].
The judge awarded Ms Atoms aggravated damages of $20,000[75] and, in addition, exemplary (punitive) damages of $10,000.[76]
[75] Primary decision [1087].
[76] Primary decision [1088].
Her Honour summarised Ms Atoms' damages as follows:[77]
[77] Primary decision [1148].
Summary of Ms Atoms damages
General damages $136,000.00
Aggravated damages $20,000.00
Exemplary damages $10,000.00
Past expenses $12,978.50
Future expenses $174,665.00
Past loss of earning capacity $334,520.11Future loss of earning capacity $336,658.50
Total $1,024,822.11
Dr Cunningham
The judge found that:
1.Dr Cunningham was entitled to general damages of $75,000.[78]
2.The general damages of $75,000 should be apportioned as to:[79]
(a)the (malicious) batteries by Officers Traynor and Clark up to the time of tasering: $10,000;
(b)the malicious battery by Mr Caldwell in tasering: $12,500;
(c)the (non‑malicious) battery involving handling after tasering: $2,500;
(d)the false imprisonment: $25,000; and
(e)the malicious prosecution by Officer Clark: $25,000.
[78] Primary decision [913].
[79] Primary decision [913].
The State was liable for the torts referred to in pars (c) and (d) above.[80]
[80] Primary decision [76], [745], [754], [910(c)], [910(d)].
Her Honour awarded Dr Cunningham aggravated damages of $10,000[81] and, in addition, exemplary (punitive) damages of $10,000.[82]
[81] Primary decision [918].
[82] Primary decision [921].
Her Honour summarised Dr Cunningham's damages as follows:[83]
General damages $75,000
Aggravated damages $10,000
Exemplary damages $10,000
Past expenses $5,874.10
$600.00Future expenses $8,830.00
Total $110,304.10
[83] Primary decision [924].
Final orders
Following the delivery of reasons on 9 December 2016, there was a debate between the parties as to the appropriate final orders. That debate was adjourned to 15 December 2016.[84]
[84] ts 1985 - 1995.
The State's position was that, having regard to the apportionment process undertaken by the primary judge in her Honour's reasons, Ms Atoms should be awarded damages against the State in the sum of $675,783.37, based on an approximate 66% ‑ 67% contribution to Ms Atoms' general damages in respect of Officer Clark's battery, the battery after tasering, and the false imprisonment, 66.18% contribution for aggravated damages and 66.67% contribution respectively for past special damages, future special damages and loss of earning capacity.[85]
[85] This history is taken from the summary in The State of Western Australia v Cunningham [2017] WASCA 119 [52].
In the case of Dr Cunningham, he should be awarded damages against the State in the sum of $36,558.17. This sum is based (in general terms) on a 36.67% contribution to Dr Cunningham's general damages in respect of the battery after tasering and false imprisonment, and a 36.67% contribution respectively for aggravated damages, past special damages and special damages. The State's proposed orders were set out in a minute of proposed orders dated 12 December 2016.[86]
[86] The State of Western Australia v Cunningham [2017] WASCA 119 [52].
At the hearing on 15 December 2016, the judge rejected the State's approach to apportionment. In extempore oral reasons, her Honour said that certain authorities referred to by counsel for Dr Cunningham and Ms Atoms had not been drawn to her Honour's attention when preparing the written reasons, and said:[87]
These authorities … were not referred to me during the course of the trial and this was not a matter drawn to my attention during the trial; I proceeded on the basis of what counsel had advised me at - which I recorded at paragraph 836 of my reasons for judgment.
It seems to me that this is not the correct legal position. I would be making a fundamental error if I entered judgment separately against each of the defendants as suggested to me by the State. In particular, I do not consider that in entering one judgment against all defendants as suggested in the plaintiffs' minutes that this offends either section 137 or 138 of the Police Act.
I accept what is set out in paragraphs 14 to 16 of the plaintiffs' written submissions. In my view, the plaintiffs are entitled to judgment against all the defendants. The apportionment that I have made is a matter of contribution between the defendants so the defendants can deal between themselves as to the appropriate apportionment.
[87] ts 1998.
In relation to costs, her Honour said:[88]
I don't propose to apportion the costs for two reasons.
Firstly, the reasons I've already given about making separate judgments against each of the defendants and secondly, the issue of costs is, in my view, quite a different matter and I need to take into account the way this matter was run at trial and it was really a joint offensive, if I can call it that, against the plaintiffs by the defendants.
There was much cooperation between them and the - for example, the matter - the State dealt with all matters of damages and there was - and spoke for all defendants in relation to damages. So it's, in my view, appropriate that there be no apportionment of costs.
[88] ts 1999.
The final orders made by her Honour were in the following terms:
1.There be judgment for [Dr Cunningham] against:
(a)[Officer Traynor, Officer Clark, Mr Caldwell and the State (collectively the defendants)] in the sum of $99,704.10;
(b)[Officer Traynor, Officer Clark and Mr Caldwell] in the further sum of $10,000 by way of exemplary damages; and
(c)[Officer Clark] in the further sum of $600.
2.There be judgment for [Ms Atoms] against:
(a)all defendants in the sum of $20,000;
(b)[Officer Traynor] in the further sum of $1,000;
(c)[Officer Clark, Mr Caldwell and the State] in the further sum of $993,822.11; and
(d)[Officer Traynor, Officer Clark and Mr Caldwell] in the further sum of $10,000 by way of exemplary damages.
3.[Officer Clark's] counterclaim is dismissed.
4.The defendants pay [Dr Cunningham's and Ms Atoms'] costs of the action to be taxed if not agreed, such costs to be taxed as one set of costs for which the defendants are to be jointly and severally liable.
The grounds of appeal and the State's case on the appeal
The State relies on s 137(5) of the Police Act 1892 (WA), and challenges the judge's findings of joint liability to pay compensatory and/or aggravated damages in circumstances where her Honour also made findings of malice.
The full text of s 137 of the Police Act is set out later (see [98] below). At this stage it is convenient to record that s 137(5) provides:
The Crown is liable for a tort that results from -
(a)anything done by a member of the Police Force, without corruption or malice, while performing or purporting to perform the functions of a member of the Police Force, whether or not under a written or other law;
(b)anything done by a person, without corruption or malice, in assisting a member of the Police Force who is performing or purporting to perform the functions of a member of the Police Force, whether or not under a written or other law.
The grounds in relation to Dr Cunningham
Grounds 1, 2 and 3 relate to Dr Cunningham. These grounds are to the following effect:[89]
[89] WAB 7.
1.Contrary to s 137(5) of the Police Act, the judge erred in law in holding the State jointly liable with Officer Traynor, Officer Clark and Mr Caldwell to pay compensatory damages, after having found that Officer Traynor acted with malice against Dr Cunningham in committing:
(a)the tort of misfeasance in public office; and
(b)the first act of false imprisonment with Officer Clark.
2.Contrary to s 137(5) of the Police Act, the judge erred in law in holding the State jointly liable with Officer Traynor, Officer Clark and Mr Caldwell to pay compensatory damages after having found that Officer Clark acted with malice against Dr Cunningham in committing:
(a)the tort of misfeasance in public office;
(b)the tort of malicious prosecution; and
(c)the first act of false imprisonment with Officer Traynor.
3.Contrary to s 137(5) of the Police Act, the judge erred in law in holding the State jointly liable with Officer Traynor, Officer Clark and Mr Caldwell to pay compensatory damages after having found that Mr Caldwell acted with malice against Dr Cunningham in committing the tort of misfeasance in public office.
The grounds in relation to Ms Atoms
Grounds 4, 5 and 6 relate to Ms Atoms. These grounds are to the following effect:[90]
[90] WAB 8.
4.Contrary to s 137(5) of the Police Act, the judge erred in law in holding the State jointly liable:
(a)with Officer Clark and Mr Caldwell to pay compensatory damages; and
(b)with Officer Traynor, Officer Clark and Mr Caldwell to pay aggravated damages,
after having found that Officer Traynor acted with malice against Ms Atoms in committing the tort of misfeasance in public office and the first act of false imprisonment.
5.Contrary to s 137(5) of the Police Act, the judge erred in law in holding the State jointly liable:
(a)with Officer Clark and Mr Caldwell to pay compensatory damages; and
(b)with Officer Traynor, Officer Clark and Mr Caldwell to pay aggravated damages,
after having found that Officer Clark acted with malice against Ms Atoms in committing the tort of malicious prosecution and the tort of battery.
6.Contrary to s 137(5) of the Police Act, the judge erred in law in holding the State jointly liable:
(a)with Officer Clark and Mr Caldwell to pay compensatory damages; and
(b)with Officer Traynor, Officer Clark and Mr Caldwell to pay aggravated damages,
after having found that Mr Caldwell acted with malice against Ms Atoms in committing the tort of misfeasance in public office.
Costs
Ground 7 relates to costs:[91]
7.The judge erred in law in holding the State jointly and severally liable with Officer Traynor, Officer Clark and Mr Caldwell for Dr Cunningham's and Ms Atoms' entire costs of the action when the State was not liable for the malicious acts of Officer Traynor, Officer Clark and Mr Caldwell pursuant to s 137(5) of the Police Act.
The State's arguments
[91] WAB 8.
The State says, in effect, that on its proper construction, the effect of s 137(5) of the Police Act is that the State is only 'answerable for damage caused by' torts committed by police officers, without malice or corruption, in the performance of their functions as a member of the Police Force.[92] Further, while the State accepts that itself, Officer Traynor, Officer Clark and Mr Caldwell are several and concurrent tortfeasors, it says that the general principle of solidary liability must give way to s 137(5) of the Police Act.[93] That is, s 137(5) operates to make the State liable only for the proportion of damage caused by those acts done without corruption or malice. As a result, where police officers have acted with malice, s 137(5) requires that damage caused by acts done with malice be apportioned from damage caused by acts done without malice. It says a separate judgment should be given against the State in the apportioned sum.[94]
[92] Appellant's case, submissions, pars 34, 42, 45; WAB 15 - 16.
[93] WAB 17 - 20. The appellant refers in particular to Barisic v Devenport [1978] 2 NSWLR 111, 116 - 117, 152.
[94] Appellant's case, submissions, pars 49, 68, 71; WAB 17, 19 - 20.
The State relied on the case of Watkins v State of Victoria[95] in support of its contention that s 137 of the Police Act overrides the general principle of solidary liability. The State's submissions on the meaning of 'liable' in s 137(5) of the Police Act are set out in detail in [127] below.
[95] Watkins v State of Victoria [2010] VSCA 138; (2010) 27 VR 543.
The State says that the primary judge made findings of fact that Officer Traynor, Officer Clark and Mr Caldwell acted with malice as follows:[96]
1.When Officer Traynor grabbed Ms Atoms.[97]
2.When Officer Traynor and Officer Clark took hold of Dr Cunningham.[98]
3.When Mr Caldwell tasered each of Dr Cunningham and Ms Atoms.[99]
4.When Officer Clark pushed Ms Atoms.[100]
5.When Officer Clark launched prosecution of the criminal charges against Dr Cunningham and Ms Atoms 'on obviously insufficient material'.[101]
[96] Appellant's case, submissions, par 7; WAB 10.
[97] Citing primary decision [762] ‑ [763].
[98] Citing primary decision [771].
[99] Citing primary decision [780].
[100] Citing primary decision [788].
[101] Citing primary decision [810].
In relation to grounds 1 ‑ 6 generally, the State says that her Honour erred in failing to apply or properly apply s 137 of the Police Act on its proper construction, and in failing thereby to give separate judgment against the State for apportioned damages caused by the torts of Officer Traynor, Officer Clark and Mr Caldwell which were done without malice.[102]
[102] Appellant's case, submissions, pars 71 ‑ 72, 74 ‑ 82; WAB 20 - 21.
In particular, in relation to the judge's findings that the State was liable for the tort of false imprisonment (grounds 1(b), 2(c) and 4(b)), the State says that it cannot be made liable for damages for false imprisonment because the false imprisonment itself was a tort that 'results from' the torts committed by Officers Traynor and Clark with malice.[103]
[103] Appellant's case, submissions, pars 110 - 117; WAB 24 - 25.
In relation to the finding of battery constituted by Officer Clark pushing away Ms Atoms (ground 5(b)), the State alleges that the judge found, in effect, that Officer Clark acted with malice throughout his dealings with Ms Atoms, and that this must include when he pushed Ms Atoms away. Accordingly, it is said, the State cannot be held liable for the damages arising from that malicious act.[104]
[104] Appellant's case, submissions, pars 124 - 131; WAB 25 - 26.
In respect of ground 7, the State says that if the court finds the judge erred in relation to any of the previous grounds, it follows that her Honour also erred in law in holding the State jointly and severally liable with Officer Traynor, Officer Clark and Mr Caldwell for Dr Cunningham's and Ms Atoms' costs of the action.[105] Reference is also made to O 66 r 2(e) of the Rules of the Supreme Court 1971 (WA).[106]
Orders wanted by the State
[105] Appellant's case, submissions, par 132; WAB 26.
[106] Appellant's case, submissions, pars 134 - 136; WAB 26 - 27.
In the 'orders wanted', the State seeks substitutive orders in lieu of the orders made by Davis DCJ in terms including:[107]
[107] Appellant's case, minute of substituted orders; WAB 31.
1.There be judgment for [Dr Cunningham] against:
(a)[Officer Traynor] in the sum of $25,678.08
(b)[Officer Clark] in the sum of $62,961.06
(c)[Mr Caldwell] in the sum of $18,341.49
(d)the [State] in the sum of $3,323.47
2.There be judgment for [Ms Atoms] against:
(a)[Officer Traynor] in the sum of $226,112.88;
(b)[Officer Clark] in the sum of $342,136.97;
(c)[Mr Caldwell] in the sum of $229,701.23;
(d)the [State] in the sum of $226,871.04
3.[Officer Clark's] counterclaim is dismissed.
4.The defendants pay the [Dr Cunningham's and Ms Atoms'] costs of the action to be taxed if not agreed, such costs to be taxed as one set of costs and to be apportioned as follows:
(a)22.18% payable by [Officer Traynor];
(b)35.69% payable by [Officer Clark];
(c)21.85% payable by [Mr Caldwell];
(d)20.28% payable by the [State].
The Traynor/Clark/Caldwell cross-appeal
By their cross-appeal, as filed, Officer Traynor, Officer Clark and Mr Caldwell alleged:[108]
1.The judge erred in law in entering judgment for Dr Cunningham jointly against all defendants in the sum of $99,704.10.
2.The judge erred in law in entering judgment for Ms Atoms against Officer Clark and Mr Caldwell and the State in the sum of $993,822.11.
3.Further or alternatively to ground 2, the judge erred in law in entering judgment for Ms Atoms against Officer Clark (jointly with Mr Caldwell and the State) for damages in the sum of $993,822.11.
[108] WAB 71A - 71C.
By their first two grounds of appeal, Officer Traynor and Officer Clark and Mr Caldwell contend that the judge ought to have, but failed, to apportion liability between the defendants consistent with her findings in the primary decision.[109]
[109] WAB 71A - 71C.
At the hearing of the appeal, counsel for the cross‑appellants informed the court in effect that:[110]
1.They only pursued grounds 1 and 2.
2.Grounds 1 and 2 'fall away' if the State fails in the appeal, and there is no proportionate liability.
[110] Appeal ts 165, 167.
The judge's findings
At this point it is convenient to set out in detail the judge's findings on liability, malice and causation.
The issues and the questions of malice
The judge's findings with respect to Ms Atoms and Dr Cunningham are to be understood in the context of her Honour's reasons read as a whole. These include her Honour's statement of the issues at [145] where, amongst other things, her Honour said:[111]
[111] Primary decision [145].
Having regard to the pleadings, the evidence and submissions of the parties at trial (and with some minor changes to the issues which I discussed with counsel for the parties during trial, and the addition of issues five, six and 10), I consider that the following issues relevant to liability are:
…
4.was the arrest of Dr Cunningham lawful?
5was there an excessive use of force by Officers Traynor and Clark against Dr Cunningham?
6.why did Officer Clark push Ms Atoms and was this justified?
7.was there any justification for tasering Ms Atoms?
8.was Ms Atoms' arrest lawful?
9.was there any justification for tasering Dr Cunningham?
10.how were Ms Atoms and Dr Cunningham handled after their tasering until the time they were placed in the police van?
11.was the imprisonment of Ms Atoms at any time until released on bail lawful, and therefore justified?
12. was the imprisonment of Dr Cunningham at any time until released on bail lawful and therefore justified?
13.was any of the individual conduct of the first, second or third defendants malicious?
14.was the prosecution of the criminal charges against Ms Atoms and Dr Cunningham malicious in the sense of being:
(a) without reasonable and probable cause; and
(b)actuated by malice?
In relation to malice, and with evident reference to point 13 in [145] referred to in the preceding paragraph,[112] at [755] her Honour said that the allegations of malice were:
1.in relation to Ms Atoms (1) whether Officer Traynor acted with malice when he grabbed Ms Atoms on the footpath, and (2) whether Mr Caldwell acted with malice when he tasered Ms Atoms;[113] and
2.in relation to Dr Cunningham, (1) whether Officers Traynor and Clark acted with malice 'when arresting and dealing with Dr Cunningham', and (2) whether Mr Caldwell acted with malice when he tasered Dr Cunningham.[114]
The findings of malice
[112] But not with respect to point 14, as her Honour dealt with malicious prosecution separately.
[113] Primary decision [755(a)], [755(c)].
[114] Primary decision [755(b)], [755(d)].
In relation to the conduct of Officer Traynor in grabbing Ms Atoms, the primary judge found that he acted in pique or personal spleen.[115] He exhibited anger and spite, ie, malice.[116] He was acting with a motive other than that of bringing a wrongdoer to justice, and he was exercising his authority other than in an honest attempt to perform the functions of his office, and acted maliciously.[117]
[115] Primary decision [757], [762].
[116] Primary decision [761].
[117] Primary decision [763].
In relation to the conduct of Officers Traynor and Clark when arresting and dealing with Dr Cunningham,[118] the judge made the following findings. Officers Traynor and Clark were activated by ill‑will and anger in using force against him to arrest him.[119] Their ill‑will then 'infected' their decision‑making.[120] Their behaviour towards Dr Cunningham was motivated by spite, ill‑will, or pique towards him.[121] They were acting with a motive other than that of bringing a wrongdoer to justice, and were exercising their authority other than in an honest attempt to perform the functions of their office, and were acting maliciously.[122]
[118] Primary decision [755(b)].
[119] Primary decision [767].
[120] Primary decision [767].
[121] Primary decision [770].
[122] Primary decision [771].
In relation to the tasering of Ms Atoms and Dr Cunningham, Mr Caldwell was not honestly attempting to perform the functions of his office, and he acted maliciously.[123]
[123] Primary decision [780].
In relation to the prosecution of Dr Cunningham and Ms Atoms, Officer Clark did not act with a genuine desire to serve the ends of justice, but rather acted solely or predominantly with an indirect or improper motive.[124] The prosecution was brought for a purpose other than the proper invocation of the criminal law.[125]
[124] Primary decision [807].
[125] Primary decision [810].
There is no finding that the unknown police officers acted with malice when, after tasering, they picked up Dr Cunningham and Ms Atoms, and roughly led and placed them in the police van.
The police officers' conduct - Ms Atoms
The primary judge made, in effect, the following findings in relation to the police officers' conduct with respect to Ms Atoms:
1.The conduct of Officer Traynor in grabbing Ms Atoms on the wrist on each of the first and second occasions constituted a battery, was done with malice, and constituted misfeasance in public office.[126]
2.The conduct of Officer Clark in pushing her away constituted battery, but without malice,[127] for which the State was found liable.[128]
3.The conduct of unknown police officers handcuffing and handling her after she had been tasered constituted battery. Her Honour did not find malice in that regard,[129] and found the State liable for this.[130]
4.The conduct by Officer Traynor in grabbing Ms Atoms the second time also constituted detaining her and she was not free to go.[131] Her detention was unlawful and constituted false imprisonment (1) from the time she was grabbed the second time by Officer Traynor until he let her go when he turned to deal with Dr Cunningham, and (2) after she was tasered until she was released on bail.[132] There is no express finding that the detention throughout the whole of the two periods was done with malice. This was although the first period of false imprisonment commenced with the malicious battery by the second grabbing of her arm (see point 1 above), and the second period of false imprisonment commenced with her arrest[133] after the (malicious) tasering, with unknown police officers handcuffing and handling her and putting her into the police van until she was released on bail.[134] There was no finding of malice against the unknown police officers in relation to the second period of false imprisonment.
5.The State was liable for the false imprisonment.[135]
6.The conduct of Officer Traynor in grabbing her, and the conduct of Mr Caldwell in tasering her, involved malice and constituted misfeasance in public office.[136]
7.The conduct by Officer Clark in prosecuting her constituted malicious prosecution.[137]
[126] Primary decision [475], [478], [755(a)], [762] - [763], [813(a)].
[127] Primary decision [37], [589], [756], [813(b)].
[128] Primary decision [813(b)], [1070(a)].
[129] Primary decision [743], [745], [813(d)].
[130] Primary decision [745].
[131] Primary decision [480].
[132] Primary decision [61], [813(e)].
[133] Primary decision [592].
[134] Primary decision [215], [479] - [480], [499], [746] - [753], [813(e)].
[135] Primary decision [813(e)].
[136] Primary decision [763], [780], [813(a)], [813(c)].
[137] Primary decision [807], [810], [813(f)].
The conduct of Officer Clark in pushing Ms Atoms away (see point 2 in the preceding paragraph) occurred after she was released by Officer Traynor and before she was tasered.[138] The State contended that her Honour found this battery as having been done with malice. The State relies in particular on [784] and [788] of the primary decision. The judge observed in [784] that (1) Ms Atoms 'could have easily been kept at arm's length', and (2) that Officer Clark 'demonstrated a similar disregard for the plaintiffs'.[139] In her reasons at [788], the judge also said that each of the defendants 'when dealing with the plaintiffs, acted with malice'.
[138] See [16] above.
[139] Primary decision [784].
The first of the two observations in [784] referred to above is not inconsistent with the finding of battery without malice. The other observations referred to in [784] and [788] are very general observations, and are inconsistent with her Honour's specific findings with respect to Officer Clark's conduct in pushing Ms Atoms away. Those generalised observations are, however, explicable in the sense that they may apply to the torts committed by Officer Clark against Dr Cunningham and to the malicious prosecution of both Ms Atoms and Dr Cunningham by Officer Clark.
The judge's reasons must be read and construed as a whole. The paragraphs of her Honour's reasons which make it clear that her Honour did not find malice in relation to this battery are footnoted in respect of point 2 of [85] above. When the judgment is read as a whole, the paragraphs relied on by the State do not constitute a finding that the pushing of Ms Atoms was done with malice. The effect of the reasons for judgment, read as a whole on this topic, indicate that the judge found that Officer Clark's conduct in pushing Ms Atoms away was not done with malice.
In relation to the false imprisonment of Ms Atoms (see points 4 and 5 of [85] above), the effect of the judge's findings, when her Honour's reasons are read as a whole, is that:
1.The first period of false imprisonment commenced with the malicious battery by Officer Traynor grabbing her, and she remained under the restraint of the grab until she was released, with the consequence that throughout this period of detention, Officer Traynor's restraint involved malice.
2.The second period of false imprisonment commenced with the restraint imposed by her arrest by the unknown police officers, that was done without malice. Her continued detention pursuant to the arrest, until she was released from Fremantle police station, also occurred without malice.
Causation - Ms Atoms
The primary judge found, in effect, that Ms Atoms had suffered a back injury[140] and psychiatric injury,[141] as a result of the events which had occurred in the early hours of 2 November 2008.
[140] Primary decision [1046] - [1058], [1075].
[141] Primary decision [829], [1076].
In relation to the back injury, her Honour found, in effect, that it was caused by the non‑malicious battery by Officer Clark, the non‑malicious battery by the unknown officers, and the malicious tasering by Mr Caldwell.[142]
[142] Primary decision [1059] - [1063].
There was no finding that the false imprisonment caused her back injury, and there were positive findings to the effect that her back injury was not caused by:
(a)the conduct of Officer Traynor in grabbing Ms Atoms' arms (on both occasions);[143] and
(b)the malicious prosecution by Officer Clark.[144]
[143] Primary decision [1061].
[144] Primary decision [1063].
In relation to Ms Atoms' psychiatric injury, her Honour found that this was caused by the non‑malicious tortious conduct of Officer Clark, the non‑malicious conduct of the unknown officers handling her and putting her into the police van after tasering, the false imprisonment (malicious for the first period and non‑malicious for the second period, as indicated in [89] above), the malicious conduct of Mr Caldwell in tasering her, and the malicious prosecution. Her psychiatric injury was not caused by Officer Traynor's battery by grabbing Ms Atoms' arms.[145] In this regard, the judge evidently concluded that whilst the particular battery which commenced the restraint for the false imprisonment was not causative of psychiatric injury, the restraint itself, up to the time she was released when her arm was let go, was causative of psychiatric injury.
The police officers' conduct - Dr Cunningham
[145] Primary decision [1064] - [1069], [1074].
The judge made, in effect, the following findings with respect to Dr Cunningham:
1.The conduct of Officers Traynor and Clark in arresting Dr Cunningham (he was arrested when he was first taken hold of and had his hands pulled behind his back)[146] was unlawful and was done with malice and constituted misfeasance in public office.[147] The conduct involved in the arrest included:[148]
(a)the conduct of Officers Traynor and Clark in grabbing Dr Cunningham's arms and putting them behind his back. This constituted battery, was done with malice, and constituted misfeasance in public office;[149] and
(b)the pushing of Dr Cunningham towards Essex Street while holding his arms behind his back, handcuffing him and kicking him in the leg. This was unlawful, constituted battery, was done with malice and constituted misfeasance in public office.[150]
2.Mr Caldwell's conduct in tasering Dr Cunningham was done with malice and constituted misfeasance of public office.[151]
3.The handling of Dr Cunningham by the unknown police officers following the tasering, until he was placed in the police van, constituted battery. Her Honour does not expressly find malice,[152] and found the State liable for this battery.[153]
4.From the moment Dr Cunningham was first grabbed by Officer Clark until he was released from the Fremantle police station, he was falsely imprisoned.[154] Her Honour did not expressly find malice in that regard, and found the State liable for this.[155]
5.The prosecution by Officer Clark involved malice and constituted malicious prosecution.[156]
[146] Primary decision [500].
[147] Primary decision [542], [544], [576], [586], [755(b)], [812(a)].
[148] Primary decision [812(a)], [910(a)].
[149] Primary decision [544], [576], [771], [812(a)].
[150] Primary decision [544], [576] - [584], [586], [812(a)].
[151] Primary decision [710] - [715], [812(b)].
[152] Primary decision [745], [812(c)].
[153] Primary decision [812(c)], [910(c)].
[154] Primary decision [61(b)], [752] - [753].
[155] Primary decision [812(d)].
[156] Primary decision [807], [810], [812(e)].
In relation to the false imprisonment of Dr Cunningham (see point 4 in the preceding paragraph), although her Honour did not expressly find malice, she noted that the false imprisonment included all of the batteries involved in the wrongful arrest and the tasering (all of which were malicious), and the handling after the tasering (for which there was no finding of malice).[157] In light of the finding that Dr Cunningham was arrested with malice and the detention resulting from the arrest continued until he was released from Fremantle police station, it might be inferred from the reasons, and the State contends, that the judge found, in effect, that the whole of Dr Cunningham's physical detention throughout that period was actuated by malice. On the other hand, Dr Cunningham contends that properly understood, there was, in substance, a finding of a second period of false imprisonment, starting with the non‑malicious conduct of the unknown police officers in bundling Dr Cunningham into the police van to be taken to the police station. In support of that submission, Dr Cunningham refers to the facts that he did not plead malice, or seek exemplary damages in that regard, and that the State had never pleaded or alleged malice in that regard. This question turns, ultimately, on the proper construction of the judge's reasons read as a whole. On balance, it seems to us that whilst the judge found that there was false imprisonment covering the whole of the period from when Dr Cunningham was first arrested, the conduct of the unknown police officers in handling him and bundling him into the van for him to be taken to the police station constituted a separate act of restraint, the effect of which continued whilst he remained in the van and was taken to the police station. As no party alleged that this restraint was done with malice, the better construction of the reasons is that this period of false imprisonment was not affected by malice.
Causation - Dr Cunningham
[157] Primary decision [910(d)].
The judge found that Dr Cunningham suffered psychiatric injury in the form of post‑traumatic stress disorder.[158]
[158] Primary decision [829], [893].
Her Honour found that all of the tortious conduct on 2 November 2008 and their sequelae caused Dr Cunningham's psychiatric injury.[159]
The Police Act
Sections 137 and 138 of the Police Act
[159] Primary decision [893], [906] - [907].
Section 137 of the Police Act provides:
137.Protection from personal liability
(1)This section -
(a)is in addition to section 5 of the Criminal Code Act 1913; and
(b)does not affect any right to recover damages from the owner or driver of a motor vehicle in respect of the death of or bodily injury to a person directly caused by, or by the driving of, the motor vehicle,
but otherwise applies despite any other written law.
(2)This section applies to and in respect of anything done after the commencement of the Acts Amendment (Police Immunity) Act 1999.
(3)An action in tort does not lie against a member of the Police Force for anything that the member has done, without corruption or malice, while performing or purporting to perform the functions of a member of the Police Force, whether or not under a written or other law.
(4)An action in tort does not lie against a person for anything that the person has done, without corruption or malice, in assisting a member of the Police Force who is performing or purporting to perform the functions of a member of the Police Force, whether or not under a written or other law.
(5)The Crown is liable for a tort that results from -
(a)anything done by a member of the Police Force, without corruption or malice, while performing or purporting to perform the functions of a member of the Police Force, whether or not under a written or other law;
(b)anything done by a person, without corruption or malice, in assisting a member of the Police Force who is performing or purporting to perform the functions of a member of the Police Force, whether or not under a written or other law.
(6)The Crown's liability under subsection (5) does not extend to exemplary or punitive damages.
(7)If a person to whom subsection (3) or (4) applies does not cooperate fully with the Crown in the defence of an action in tort against the Crown in respect of anything done by the person, the Crown may recover from the person the Crown’s costs of defending the action and any damages and costs awarded against the Crown in the action.
(8)For the purposes of subsection (7), a person does not cooperate fully with the Crown if the person refuses -
(a)to answer any question, including a question the answer to which is or may be self‑incriminating; or
(b)to produce any object or recorded information in the person’s possession or control,
that is relevant to the defence of the action.
(9)If a person, in cooperating with the Crown in the defence of an action referred to in subsection (8), gives an answer that is or may be self‑incriminating, the answer is not admissible in any criminal or disciplinary proceedings against the person except proceedings for a criminal or disciplinary offence arising from the giving of a false answer. (footnotes omitted) (emphasis added)
Section 138 of the Police Act provides:
138.Corrupt or malicious acts by police
(1)This section applies if a person (the claimant), in an action in tort, is awarded damages -
(a)against a member of the Police Force (the defendant) for anything that the member has done maliciously or corruptly while performing or purporting to perform the functions of a member of the Police Force, whether or not under a written or other law; or
(b)against a person (the defendant) for anything that the person has done maliciously or corruptly in assisting a member of the Police Force who is performing or purporting to perform the functions of a member of the Police Force, whether or not under a written or other law,
and the thing was done after the commencement of the Acts Amendment (Police Immunity) Act 1999.
(2)The claimant may request the Treasurer to pay the damages awarded to the claimant, other than exemplary or punitive damages, and any costs ordered to be paid to the claimant.
(3)The Treasurer may pay the claimant all or some of the damages and costs if satisfied -
(a)that the claimant is unlikely to recover them from the defendant; and
(b)that there is no relationship or connection between the claimant and the defendant, or a close relative of the defendant, that is likely to result in a benefit or advantage to the defendant if the claimant were paid the damages and costs.
(4)Any amount paid by the Treasurer to the claimant is a debt due to the Crown by the defendant and may be recovered in a court of competent jurisdiction.
(5)In this section -
close relative, in relation to a person, includes a de facto partner of the person. (emphasis added)
The approach to construction
For present purposes, it is sufficient to refer to the High Court's decision in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory). In Alcan, French CJ said:[160]
The starting point in consideration of the first question is the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and the legislative purpose. …
In so saying, it must be accepted that context and legislative purpose will cast light upon the sense in which the words of the statute are to be read. Context is here used in a wide sense referable, inter alia, to the existing state of the law and the mischief which the statute was intended to remedy. (footnotes omitted)
[160] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 [4].
Also in Alcan, Hayne, Heydon, Crennan and Kiefel JJ said:[161]
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy. (footnotes omitted)
Background to s 137
[161] Alcan [47].
The following matters shed some light on the historical considerations, the then existing state of the law, and the mischief which s 137 of the Police Act was (objectively) intended to remedy.
Crown immunity
Under the common law in England, there developed a collection of rules, compendiously described in their effect as Crown immunity, which reflected the concepts that the courts of justice were those of the Sovereign, that the Sovereign could not be impleaded in his or her own courts, and, in relation to claims in tort, that 'the King can do no wrong'.[162]
[162] British American Tobacco Australia Ltd v The State of Western Australia [2003] HCA 47; (2003) 217 CLR 30 [11].
Even in England, however, before the reforms made by the Crown Proceedings Act 1947 (UK), Crown immunity was not absolute. The petition of right was available, which was said to give effect to the principle that the subject should receive a redress from the Crown in those cases where redress would be available from a fellow subject.[163] The petition of right applied to claims in contract, but it did not, however, apply to a tortious act done by the Crown, or by a public servant by the authority of the Crown.[164] The exclusion of tort claims from the petition of right effectively 'immunised the Crown from any liability in tort, because no other remedy was available for the purpose'.[165]
[163] The Commonwealth v Mewett [1997] HCA 29; (1997) 191 CLR 471, 542.
[164] Mewett (542 - 543); Hogg P, Monahan P J & Wright W, Liability of the Crown (4th ed) [1.3(c)], pages 6 ‑ 7.
[165] Hogg, Liability of the Crown [1(c)], page 7.
Nevertheless, a servant of the Crown was responsible at common law for a tortious act done to a fellow subject, although done by the authority of the Crown, and, to that tortfeasor, the immunity of the Crown afforded no defence. Further, in most instances, the action against the officer or servant of the Crown would have the same effect as a petition of right. That is because, in a proper case, the Crown would defend its officer and become responsible for any damages awarded.[166]
[166] Mewett (543).
In Australia, before federation, all the Australian colonies, save Victoria, had legislation (which, for convenience, may be described as 'Crown suits legislation') establishing procedures whereby claims in tort, as well as in contract, might be brought against the colonial governments.[167] In Western Australia, the relevant statute was the Crown Suits Act 1898 (WA).[168] That statute was the predecessor to the current Crown Suits Act 1947 (WA). Section 5 of the latter statute provides, in effect, that, subject to that Act, the Crown (defined to mean the Crown in right of the government of Western Australia) may sue and be sued in any court in the same manner as a subject. In Bell v The State of Western Australia,[169] McLure J said, by reference to Mewett, that at common law the Crown was always liable in tort but enjoyed an immunity from liability, and that the Crown Suits Act had removed the immunity with the effect that any pre‑existing liability could be enforced.
[167] Mewett (544 - 545).
[168] Mewett (544 - 545); see also Hogg P, Liability of the Crown [1.3(c)] pages 6 - 8, [6.1(b)] page 152.
[169] Bell v The State of Western Australia [2004] WASCA 205; (2004) 28 WAR 555 [39].
In relation to torts, the removal of Crown immunity by legislation meant that, in general terms, whenever the relation of the Crown to its employees was such that in a similar case, an individual would be liable for the acts of his or her employee, the Crown would be liable for the acts of its employees.[170] The liability was vicarious and not direct.[171]
[170] Baume v The Commonwealth [1906] HCA 92; (1906) 4 CLR 97, 119; Ramsey v Larsen [1964] HCA 40; (1964) 111 CLR 16, 27 ‑ 28; Attorney‑General for New South Wales v Perpetual Trustee Co Ltd [1952] HCA 2; (1952) 85 CLR 237, 283. See also Northern Territory of Australia v Mengel [1995] HCA 65; (1995) 185 CLR 307, 348; Bell [41].
[171] Haskins v Commonwealth [2011] HCA 28; (2011) 244 CLR 22 [43].
The removal of Crown immunity for vicarious liability in this regard did not, however, make the Crown liable for the tortious conduct of police officers in the performance, or supposed performance, of the powers and duties imposed on them by law. That was because under the common law the Crown had no vicarious liability in any event in those circumstances. Rather, under the common law, public officers whom the law charged with a discretion and responsibility in the execution of an independent legal duty were alone responsible for tortious acts which they committed in the course of their office, and for such acts, the government, or body whom they served or which appointed them, incurred no vicarious liability.[172]
Exemplary damages
[172] Little v The Commonwealth [1947] HCA 24; (1947) 75 CLR 94, 114; Enever v The King [1906] HCA 3; (1906) 3 CLR 969, 978, 982 ‑ 984, 989 ‑ 990; Attorney‑General v Perpetual (249), (252), (283 ‑ 284), (303); Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd [1986] HCA 34; (1986) 160 CLR 626, 637 ‑ 638, 662; New South Wales v Ibbett [2006] HCA 57; (2006) 229 CLR 638 [57]; Jarratt v Commissioner of Police for NSW [2005] HCA 50; (2005) 224 CLR 44 [4] ‑ [5]; State of South Australia v Kubicki (1987) 46 SASR 282, 285 ‑ 286.
Under the common law, exemplary damages, or punitive damages (they are the same),[173] go beyond compensation, and are awarded to punish the defendant and provide retribution, to act as a deterrent to the defendant and others minded to behave in a similar way, and to demonstrate the court's disapproval of such conduct.[174] The remedy of exemplary damages arises chiefly, but not exclusively, where there has been conscious wrongdoing in contumelious disregard of another's rights.[175]
[173] Whitfield v De Lauret & Co Ltd [1920] HCA 75; (1920) 29 CLR 71, 81; Pollack v Volpato [1973] 1 NSWLR 653, 655 ‑ 656.
[174] Lamb v Cotogono [1987] HCA 47; (1987) 164 CLR 1, 8 ‑ 10; Uren v John Fairfax & Sons Ltd [1966] HCA 40; (1966) 117 CLR 118, 149; XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd [1985] HCA 12; (1985) 155 CLR 448, 471.
[175] De Lauret (77); Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1 [14], [20].
Absence of malice alone, however, will not prevent an award of exemplary damages.[176] In Johnstone, Bray CJ said that the 'defendant's conduct was outrageous, high‑handed and contumelious, though not malicious in the sense of motivated by spite, ill‑will or hatred'.[177]
[176] Cotogono (13); Johnstone v Stewart [1968] SASR 142, 145; Luntz, Assessment of Damages for Personal Injury and Death (4th ed) [1.7.4], pages 75 ‑ 76.
[177] Johnstone (145).
The first, if not principal, focus of the inquiry with respect to exemplary damages is upon the wrongdoer, and not the party who has suffered the wrongdoing.[178]
[178] Gray [15].
One of the earliest kinds of cases where punitive damages was recognised as appropriate was where there had been 'oppressive, arbitrary or unconstitutional action by the servants of the government'.[179] Before the Crown was liable in tort (through legislation of the kind described earlier), awards of exemplary (punitive) damages were made against the individual Crown servants who were guilty of the oppressive action.[180] Thus, 'the personal means of comparatively lowly officials, sued at a time when Crown immunity still barred a direct action, would not constrain awards of exemplary damages'.[181]
Aggravated damages
[179] Rookes v Barnard [1964] AC 1129, 1226.
[180] Hogg, Liability of the Crown [2.2(d)], page 33.
[181] Ibbett [41].
Aggravated damages, on the other hand, are compensatory in nature. They are given by way of compensation for the injury to the plaintiff which may be intangible, for example, in respect of injury caused by insult, humiliation and the like.[182] They are intended to compensate the plaintiff when the harm done by the wrongful act is aggravated by the manner in which the act is done.[183] This may include the high‑handed, malicious, insulting or oppressive manner in committing the tort.[184] In Uren, Windeyer J observed that '[t]he theory is that in such a case the damage is still only compensatory because the more insulting or reprehensible the defendant's conduct the greater the indignity that the plaintiff suffers and the more he should receive for the outrage to his feelings'.[185] His Honour added, however, that '[i]t seems to me that in truth a punitive or vindictive element does lurk in many cases in which the damages were aggravated by the defendant's conduct'.[186]
[182] Cotogono (8); Ibbett [31]; Gray [15].
[183] Uren (129 - 130), (149).
[184] Crampton v Nugawela (1996) 41 NSWLR 176, 188 - 189; Canterbury Bankstown Rugby League Football Club Ltd v Rogers [1993] Aust Torts Reports 81‑246, 62‑545; Henry v Thompson [1989] 2 Qd R 412, 415 ‑ 416; Lackersteen v Jones (1988) 92 FLR 6, 39 ‑ 42.
[185] Uren (151).
[186] Uren (151 ‑ 152).
In a similar vein, in Johnstone, Bray CJ, with reference to the distinction between aggravated damages and exemplary damages, observed:[187]
Very often, of course, perhaps usually, the same circumstances which increase the hurt of the plaintiff because of the malicious, insolent, high‑handed or contumelious conduct of the defendant also make it desirable for the Court to mark its disapprobation of his conduct.
[187] Johnstone (144).
Also, in Cotogono, the court observed that 'in some cases it may be difficult to differentiate between aggravated damages and exemplary damages'. [188]
[188] Cotogono (8).
In Carson v John Fairfax & Sons Ltd,[189] Mason CJ, Deane, Dawson and Gaudron JJ referred to the distinction between aggravated and exemplary damage in the context of defamation proceedings in circumstances where the relevant statute excluded liability for exemplary damages.[190] Their Honours said:[191]
As Windeyer J acknowledged in Uren … there is an element of the punitive in aggravated damages at common law. Under s 46, by reason of the exclusion of exemplary damages, it is necessary to confine an award of aggravated damages to what is truly compensatory.
Solidary liability
[189] Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44.
[190] Carson (55), where the statute provided that damages for defamation 'shall not include exemplary damages', and 'shall not be affected by the malice or other state of mind of the publisher … except so far as that malice or other state of mind affects the relevant harm'.
[191] Carson (65 ‑ 66).
More generally, damages are the common law remedy for a civil wrong. Under the common law, concurrent tortfeasors are persons, although not acting in concert between themselves, who inflict a single injury to the plaintiff.[192] At common law, the liability of concurrent tortfeasors causing the same damage is 'in solidum' in that each is responsible to make good the whole of the damage caused.[193] The common law's recognition that concurrent tortious acts may each be a cause of a plaintiff's loss or damage is reflected in the proposition that the plaintiff must establish that his or her loss or damage is 'caused or materially contributed to' by a defendant's wrongful conduct. It is enough for liability under the common law that the wrongdoer's conduct be one cause. The relevant inquiry is whether the particular contravention was a cause, in the sense that it materially contributed to, the plaintiff's loss.[194]
[192] Nilon v Bezzina [1988] 2 Qd R 420, 424; Baxter v Obacelo Pty Ltd [2001] HCA 66; (2001) 205 CLR 635 [18].
[193] Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10; (2013) 247 CLR 613 [10]; Barisic (139 ‑ 140).
[194] Hunt & Hunt [45].
Returning to s 137(5)(a), the word 'liable', in the context in which it is used, is capable of meaning either 'able to be sued' or 'legally responsible' in the same sense as was discussed in Tickle Industries. The immediate statutory context supports the conclusion that it bears the latter meaning, for the following reasons.
First, in s 137(5)(a), the Crown is 'liable for a tort'. The Crown is not made liable for any 'conduct' of a police officer. Its responsibility is confined to legal responsibility for a 'tort'. That is a shorthand reference to the common law's category of civil causes of action based on legal 'wrongs' and which are known as torts. The phrase 'liable for a tort' is conclusory. That is, the conduct of a police officer will only constitute a tort once a Court finds that that conduct meets the legal criteria for one of the torts recognised by the law. That suggests that the word 'liable' means more than just 'able to be sued', and instead encompasses legal responsibility for conduct in fact found to constitute a tort.
Secondly, the phrase 'the Crown is liable for a tort' in s 137(5)(a) can be contrasted with the phrase 'an action in tort does not lie' in s 137(3). Had the Parliament intended that 'liable' in s 137(5)(a) meant only 'able to be sued', a similar phrase to that used in s 137(3), such as 'an action in tort lies against the Crown', could instead have been used. The use of the phrase 'is liable for a tort' suggests that s 137(5) was intended to do more than enabling the Crown to be sued.
Thirdly, s 137(6) refers to the 'Crown's liability under subsection (5)'. The word 'liability' also has a range of meanings, including 'the condition of being liable or answerable by law or equity', 'the condition of being liable or subject to something, apt or likely to do something' and 'that for which one is liable; esp the debts or pecuniary obligations of a person or company'.[263] In s 137(6), the word 'liability' clearly refers to an obligation to pay damages. The subsection is directed to the possibility that, by virtue of s 137(5), and as a result of an action in tort brought against the Crown, the Crown may be the subject of an order for the payment of damages to a plaintiff. Subsection 137(6) limits that aspect of the Crown's responsibility for the tort by making clear that the Crown's liability 'does not extend to exemplary or punitive damages'.
[263] Oxford English Dictionary Online.
In my view, therefore, the word 'liable' is used in s 137(5)(a) of the Police Act to convey the meaning that the Crown is legally responsible for a tort committed by a police officer (which results from the conduct of the police officer in the circumstances described in s 137(5)(a)) and thus that the Crown is able to be sued for that tort, that its responsibility for that tort will be adjudged by the application of relevant common law principles and statutory provisions, and in the event that that action succeeds, that the Crown will be responsible for the payment of compensatory damages for any injury or loss suffered by a plaintiff for which the tortious conduct of the police officer was a material cause. In short, the word 'liable' in s 137(5) encompasses all of the features of legal responsibility for a tort ‑ from susceptibility to an action for damages for a tort, through to an award of compensatory damages to a plaintiff, and recovery of those damages from the Crown.
Under s 137(5)(a), the Crown is not made liable for any and all torts committed by police officers. Rather, it is only liable for a tort 'that results from' anything done by the police officers without corruption or malice in the performance or purported performance of his or her functions as a police officer. The word 'result' means 'to proceed as a consequence from actions, circumstances or premises; to be the outcome'.[264] The phrase 'results from', like the phrase 'result of', indicates the need for a connection between the conduct of the police officer, and the outcome, which is the conclusion that a tort was committed.[265] In other words, the Crown will be liable for a certain legal outcome - the characterisation of conduct as constituting the commission of a tort - which is a consequence of the conduct of a police officer in performing his or her functions, provided that conduct did not involve corruption or malice.
The content of the phrase 'liable for a tort'
[264] Macquarie Dictionary Online.
[265] Cf Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568 [37] ‑ [38] (McHugh J), [93] ‑ [94] (Gummow, Hayne and Heydon JJ).
As I have indicated, in my view, the phrase 'liable for a tort' in s 137(5)(a) conveys that the Crown's responsibility for the tortious conduct of a police officer, in the circumstances described in s 137(5)(a), will be determined in accordance with any relevant common law principles, and statutory provisions, concerning actions in tort.
The common law has developed principles for determining whether a plaintiff's damage was caused by one tortfeasor, or multiple tortfeasors, acting jointly or severally. Joint tortfeasors are responsible for the same wrongful act ‑ the same tort - leading to the plaintiff's damage, whereas the independent tortious acts of different tortfeasors may combine to cause the same loss or damage suffered by a plaintiff.[266] In the latter case, to establish a defendant's liability for his or her loss or damage, the plaintiff need show only that a tortfeasor's tortious conduct was one cause of the plaintiff's loss or damage, in that it 'caused or materially contributed to' the plaintiff's injury or loss.[267]
[266] Baxter v Obacelo Pty Ltd (2001) 205 CLR 635, 646 ‑ 637 (Gleeson CJ & Callinan J); Thompson v Australian Capital Television Pty Ltd [1996] HCA 38; (1996) 186 CLR 574, 580 - 581 (Brennan CJ, Dawson & Toohey JJ).
[267] Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613, 635 [45] (French CJ, Hayne & Kiefel JJ).
Even though multiple tortfeasors may have caused the same damage suffered by a plaintiff, a defendant whose tortious conduct caused or materially contributed to the loss or damage suffered by a plaintiff will be liable to compensate the plaintiff for the whole of that loss or damage. That is known as the principle of solidary liability.[268]
[268] Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613, 645 [80] (Bell & Gageler JJ); Barisic v Devenport [1978] 2 NSWLR 111, 116 (Moffitt P), 131 (Hope JA), 139 - 140 (Samuels JA).
One consequence of the principle of solidary liability is that a court will not apportion the compensatory damages awarded as between each tortfeasor, in order to reflect the extent of the defendant's responsibility for the plaintiff's damage or loss. (In Western Australia, this aspect of the principle of solidary liability has been legislatively displaced in some circumstances.[269] However, that legislation has no application in the circumstances of this case.)
[269] See, for example, Civil Liability Act 2002 (WA) s 5AK.
The corollary is that a plaintiff can be compensated for all of his or her damage by an award against only one of several concurrent tortfeasors.[270] Historically, the common law position was that a defendant generally had no right to contribution from any other tortfeasor whose tortious conduct also caused the plaintiff's damage and loss. However, legislation has modified that principle, so that a tortfeasor may now recover contribution for the compensatory damages awarded to a plaintiff from any other tortfeasor who is, or would, if sued, have been liable, in respect of the same damage suffered by the plaintiff.[271] That legislation also permits a plaintiff to pursue more than one action for the damage caused to him or her by the tort or torts of multiple tortfeasors, provided that the damages awarded against each defendant do not exceed the total amount at which the plaintiff's compensatory damages were first assessed.[272] However, different tortfeasors may be subject to different awards of damages in circumstances where exemplary damages are awarded against some tortfeasors but not others.[273]
[270] See, for example, the discussion in Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613, 647 [85] (Bell & Gageler JJ).
[271] Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) s 7(1)(c); and see the discussion of the operation of that provision in XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448, 469 - 470 (Brennan J).
[272] Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) s 7(1)(b); XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448, 459 - 460 (Gibbs CJ, Mason J agreeing at 464, Murphy J agreeing at 464, Wilson J agreeing at 465), 466 (Brennan J); Barisic v Devenport [1978] 2 NSWLR 111, 117 (Moffitt P).
[273] XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448, 460 (Gibbs CJ, Mason J agreeing at 464, Murphy J agreeing at 464, Wilson J agreeing at 465), 467 ‑ 468 (Brennan J).
In the present case, s 137(6) and s 138(2) make clear that the Crown will not be required to pay any exemplary or punitive damages. That is undoubtedly because an award of exemplary or punitive damages is not made to compensate a plaintiff for the damage he or she has suffered, but to punish a defendant for conduct showing a conscious and contumelious disregard for the plaintiff's rights and to deter that defendant from committing similar conduct in the future.[274] The existence of those provisions necessitates that any award of exemplary or punitive damages must be the subject of an order against the individual police officer concerned. However, neither s 137(6) nor s 138(2) indicate that the principle of solidary liability, in so far as it concerns awards of compensatory damages, is excluded or modified in relation to the Crown's liability for a tort under s 137(5)(a).
[274] XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448, 471 (Brennan J).
Save to the extent that it is displaced by statute, the principle of solidary liability applies as part of the common law applicable to actions in tort.[275] In my view, nothing in the language of s 137 as a whole, or in s 137(5)(a) in particular, displaces the application of the principle of solidary liability in relation to actions brought against the Crown for torts resulting from the conduct of police officers.
Contextual considerations - legislative history and purpose
[275] Barisic v Devenport [1978] 2 NSWLR 111, 117 (Moffitt P, Hope JA agreeing at 131).
The legislative history concerning the insertion of s 137 and s 138, in their present form, into the Police Act, supports the construction of s 137 set out above.
Prior to the enactment of s 137 and s 138 of the Police Act in their present form, s 138 of the Police Act incorporated section H of the Shortening Ordinance 1853 (16 Vict No 11),[276] which, in summary, provided that no action would lie against an officer of police, a policeman or a constable, for anything done in carrying the provisions of the Police Act into effect, unless there was 'direct proof of corruption or malice'. That immunity from suit was supplemented by s 53K of the Police Act, which provided that a police officer was not civilly liable for anything done or omitted to be done in good faith or in connection with the performance or purported performance of his or her functions under Part VA of the Police Act.[277]
[276] Section H of the Shortening Ordinance 1853 (16 Vict No 11) was preserved by s 47(2) and the Second Schedule to the Interpretation Act 1918 (WA) (repealed) and s 77(4) of the Interpretation Act 1984 (WA).
[277] Part VA of the Police Act was in turn repealed by the Protective Custody Act 2000 (WA) s 30.
Sections 137 and 138 were inserted into the Police Act by the Acts Amendment (Police Immunity) Bill 1999 (WA) (Bill). According to the speech given by the then Minister for Police on the second reading of the Bill, the Bill was directed to the following purposes. The Parliament sought to replace the existing legislative provisions, which were regarded as antiquated and unable to adequately protect police officers. Changes in statute and common law had given rise to questions which had arisen about the application of those provisions. The Minister's speech made clear that s 137 was intended to leave no doubt that police officers cannot be sued in tort for conduct in the performance of their functions, provided that they do not act with malice or corruptly. The Minister made this purpose clear, when he observed that the Bill would 'provide the protection necessary for police officers to carry out their lawful duties in the firm knowledge that they will not be held liable for the consequences of any of their lawful actions, unless they are acting in a corrupt or malicious manner.'[278]
[278] Western Australia, Parliamentary Debates, Legislative Assembly, 9 September 1999, 973 (Mr Prince, Minister for Police) (Second Reading Speech in respect of the Acts Amendment (Police Immunity) Bill 1999 (WA)).
In addition, the Minister for Police made clear that the Bill did 'not preclude an innocent third party from seeking compensation for any injury or loss arising from an action of a member of the Police Service'.[279] The Minister clearly regarded s 137 as achieving a similar outcome to 'vicarious liability legislation' which protected persons (such as public servants) paid by the State to provide services to the community, and who acted in good faith.[280] In this respect, s 137(5) confers a significant benefit on a third party who suffers damage or loss as a result of the tortious conduct of a police officer, which was not corrupt or engaged in with malice. While a police officer is immune from civil action for that tort (under s 137(3)), the Crown is made liable for the tort which results from that police officer's conduct. In that respect, s 137(5) constituted a significant departure from the common law position which had previously applied. At common law, the Crown is not vicariously liable for torts committed by police officers because they are charged with an independent legal duty in the execution of which they exercise a discretion.[281]
[279] Western Australia, Parliamentary Debates, Legislative Assembly, 9 September 1999, 973 (Mr Prince, Minister for Police) (Second Reading Speech in respect of the Acts Amendment (Police Immunity) Bill 1999 (WA)).
[280] Western Australia, Parliamentary Debates, Legislative Assembly, 9 September 1999, 973 (Mr Prince, Minister for Police) (Second Reading Speech in respect of the Acts Amendment (Police Immunity) Bill 1999 (WA)).
[281] Enever v The King [1906] HCA 3; (1906) 3 CLR 969, 976 ‑ 977 (Griffith CJ) and 986 - 977 (Barton J); State of New South Wales v Briggs [2016] NSWCA 344; (2016) 95 NSWLR 467, 481 [51] (Leeming JA, Ward JA agreeing).
No protection from civil action is granted to a police officer who commits a tort as a result of conduct involving malice or corruption. However, in cases of that kind, s 138 is clearly directed to protecting the position of the plaintiff in the event that he or she is unlikely to be able to recover an award of damages from the police officer. In that case, the plaintiff may request that the Treasury pay that amount, and if the Treasury makes such a payment, it is then permitted to recover the damages as a debt from the police officer concerned.[282]
[282] Police Act s 138(2) - (4).
This legislative history confirms that s 137 should be regarded as a beneficial provision. It both protects police officers from civil actions in tort in certain circumstances, and permits plaintiffs to pursue civil actions against the Crown for torts committed by police officers without malice or corruption. Consequently, to the extent that there is any ambiguity in the meaning of s 137(5), it should, within the limits of the language used, be construed beneficially, and so as to give the fullest relief which the fair meaning of its language will allow.[283]
[283] Cf Khoury v Government Insurance Office (NSW) [1984] HCA 55; (1984) 165 CLR 622, 638; IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1, 11 (Brennan CJ & McHugh J).
On the construction of s 137(5) which is advanced by the State (see [198] ‑ [199] below), a court would be required to apportion the total damages awarded to a plaintiff by way of compensation between the Crown and any police officers sued personally in tort, and who are found to have caused the plaintiff's damage. That would have the result that the plaintiff would bear the risk that a police officer may not be able to meet any award of damages apportioned to him or her. While the plaintiff would be entitled to request the Treasury to pay those damages, s 138(3) does not confer an entitlement on a plaintiff to that payment. To my mind, that outcome undermines the beneficial purpose of s 137(5).
The construction of s 137(5) set out at [181] is consistent with the beneficial purpose of s 137(5). The Crown will be subject to an order for judgment in the full amount of any compensatory damages awarded to the plaintiff. The Crown will be entitled to seek a contribution from any other tortfeasor who caused the plaintiff's damage, but it will bear the risk that no such contribution may ultimately be paid.
Why the State's contentions as to the meaning of s 137(5) cannot be accepted
The State contends that the word 'liable' in s 137(5) means 'is answerable for damage caused by' the torts referred to.[284] Counsel for the State submitted that the Crown is only answerable for damage caused by the torts referred to in section 137(5), and those torts do not include torts committed by a police officer with corruption or malice.[285]
[284] State's submissions [42].
[285] State's submissions [45].
Counsel for the State also submitted that s 137(5) 'operates to make the Crown liable only for the proportion of damage caused by acts done without corruption or malice'.[286] Counsel submitted that s 137(5) is a statutory provision 'which operates to make one class of tortfeasor liable for a proportion of damage different from another class of tortfeasor'[287] and that:
where police officers have acted with malice, section 137(5) requires that damage caused by acts done with malice be apportioned from damage caused by acts done without malice. A separate judgment should be given against the State in the apportioned sum.
This apportionment exercise is necessary to ensure that, pursuant to section 137(5), the Crown is only held liable for acts done by police officers without corruption or malice.[288]
[286] State's submissions [68].
[287] State's submissions [69].
[288] State's submissions [71] ‑ [72].
I am unable to accept the State's contentions as to the meaning of s 137(5), for the following reasons.
First, the construction advanced by the State does not reflect the ordinary meaning of the words used, understood within the surrounding statutory context. The Crown is not made liable for 'damage,' it is made liable for a 'tort'. While the liability of a defendant for the 'damage' (that is, the injury or loss) suffered by a plaintiff, which was caused by the defendant's tortious conduct, is an aspect of a defendant's liability for a tort, there is nothing in s 137(5) to support the conclusion that the phrase 'liable for a tort' should be construed so narrowly.
Secondly, the import of the State's contentions is that s 137(5) excludes the application of the common law principle of solidary liability. Absent clear words or a strong basis for a contrary implication, legislation will be presumed not to alter common law doctrines.[289] There is nothing in the language used in s 137(5) to indicate, with sufficient clarity, that common law principles applicable to actions for a tort, including the principle of solidary liability, are excluded in relation to the Crown's liability for the tort of a police officer. The preferable construction of s 137(5) is that which is consistent with the application of common law principles, including the principle of solidary liability.[290]
[289] Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277, 304 (O'Connor J); Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427, 437.
[290] Cf Balog v Independent Commission Against Corruption [1990] HCA 28; (1990) 169 CLR 625, 635 ‑ 636.
Thirdly, despite the State's assertion that s 137(5) requires that damage caused by acts done with malice be apportioned from damage caused by acts done without malice, there is nothing in the language of s 137(5) to indicate that such an apportionment of damages is required. Equally, there is nothing in the text of s 137(5) to provide any guidance as to how that apportionment is to be undertaken. That may be contrasted with other legislation which expressly modifies the principle of solidary liability and requires apportionment of damages among concurrent tortfeasors.[291] By way of example, s 137(5) says nothing about whether the apportionment for which the State contends depends on multiple tortfeasors being sued in the one action, and it says nothing about whether apportionment is required whether or not all concurrent wrongdoers are parties to the action. The absence of any legislative guidance as to the process of apportionment is significant. In light of other statutory apportionment provisions, which reflect careful and deliberate policy reform,[292] it is improbable that the Parliament would have intended to require the courts to engage in an exercise of apportionment without any guidance as to the principles to be applied in doing so.
[291] Cf Civil Liability Act 2002 (WA) s 5AK.
[292] See the discussion of the recommendations of the Ipp Committee in H Luntz, Assessment of Damages for Personal Injury and Death (2006, LexisNexis Butterworths, Australia) [11.6] 186.
It is no answer that in this case the trial judge, in her reasons for decision, reached a view on the apportionment of compensatory damages amongst each of the defendants. The learned trial judge did so only in the belief,[293] which she later concluded was mistaken,[294] that she was required by s 137(5) of the Police Act to undertake that apportionment.
[293] Reasons for decision [836].
[294] ts 1998.
Fourthly, the State's contentions appear to equate an order that the Crown pay damages to compensate a plaintiff for the whole of the loss or damage sustained by that plaintiff as a result of a tort committed by a police officer, with the imposition of liability on the Crown for other torts committed by police officers with malice or corruption which may also have been a cause of the same damage suffered by the plaintiff. That is not the case. Under s 137(5), the operation of the principle of solidary liability means that the Crown will be responsible for the full extent of the damage caused by a tort for which it is made liable. However, s 137(5) does not detract from the Crown's ability[295] to pursue a contribution from any other tortfeasors, whether police officers or others, whose torts may also have been a material cause of the plaintiff's damage. The liability of police officers who have committed torts with malice which have also materially contributed to the plaintiff's injury and loss remains entirely unaffected.
[295] Pursuant to s 7(1) of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA).
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AW
RESEARCH ASSOCIATE TO THE HONOURABLE JUSTICES MURPHY & MAZZA23 NOVEMBER 2018
16
36
1