Tokic Constructions P/L & Anor v Stepancic & Anor No. DCCIV-01-1047

TOKIC CONSTRUCTIONS PTY LTD & ANOR v STEPANCIC & ANOR
[2003] SADC 173
Judge Lowrie
Civil
BACKGROUND

The second plaintiff, Anto Tokic, is an experienced builder. He arrived in Australia in 1959 after leaving Croatia as a young man at the age of 20. Since that time he has been actively involved in the building industry carrying out building works in both country and metropolitan areas. After 1978 his building activities have been carried out under the company name, Tokic Constructions Pty Ltd, the first plaintiff. I will refer to the second plaintiff as “the plaintiff”.
In recent years the plaintiff formed a business relationship with the second defendant, Antonio Stephancich. I will refer to him as “Tony”. In more recent times the plaintiff has had a work involvement with the first defendant, John Paul Stepancic, in a number of substantial building contracts. I will refer to him as “John”. John and Tony are related.
In 2000 John and Tony carried out building work at the request of the plaintiff and alleged that by the end of that year moneys were owing to them in the order of $60,000. The plaintiff allegedly disputed this liability. By early January 2001 there was considerable ill feeling between the defendants and the plaintiff in regard to the plaintiff’s failure to pay what they considered as money rightfully owing to them for their work on a number of building projects.
The defendants, with a number of friends, in what they allege was a last attempt to finalise the festering issue arrived at the plaintiff’s premises on 12 January 2001. The intention was that if the plaintiff failed to resolve their demands they would take plant and equipment owned by the plaintiff, holding the same in safekeeping, in an endeavour to force the plaintiff to negotiate with them concerning the payment of their moneys.
The plaintiff said that he was forcibly detained in his premises by at least three men. He refused to cooperate or acknowledge their demands. The defendants then removed to storage the plaintiff’s plant including a truck and sundry building equipment. Such truck and equipment was not returned to the plaintiff until an order of this Court made by Master Rice on 31 January 2002 on the plaintiff’s application for the return of the equipment. This matter was contested and the published reasons set out the learned Master’s findings that the defendants had no right of possession of the plant and directed its return and then referred the principal issues to trial.
PLEADINGS
The plaintiff’s statement of claim recites the above incident describing the manner that the plaintiff was forcibly restrained in his office including an allegation of being violently pushed into a chair which collapsed. The plaintiff further alleged that John and another person threatened to kill him if he told anyone of the nature of the assault. The plaintiff sought damages for the trespass to the plant and equipment and damages for its detention and further damages for the assault and threatened assault.
The statement of claim was couched:
“10.1delivery up of the stolen plant and equipment of $65,621, the value thereof;
10.2damages for trespass to the stolen plant and equipment;
10.3damages for detention and/or conversion of the stolen plant and equipment;
and
10.4damages in respect of loss of profits.
The second plaintiff claimed:
11.1damages
11.2special damages (details of medical expenses to be advised)”
INTERLOCUTORY PROCEEDINGS
The matter has been subject to numerous interlocutory proceedings many of which were contested. Master Rice delivered his reasons for decision on 31 January 2002. He made the following findings:
“The plaintiff ‘s argument is simply that the defendants admit:
1. Taking the plaintiff’s plant and equipment.
2. That the plant and equipment is owned by the plaintiff.
3.That the defendant has not asserted any lawful right to possession prior to it taking the items of plant and equipment.
4.That the defendant has no title or equity in the plant and equipment.
In my view the plaintiff is entitled to immediate relief in respect of the application for the return of the plant and equipment. The defendants do not and does not have a right to possession or custody of the plant and equipment. They have no right to retain the items.
The first defendant attended in court on one occasion and told his story and frankly admitted the above. The defence at paragraph 6 does not identify a right to possession or a right to a lien in law in my opinion and therefore that aspect of the defence should be dealt with on the application.
The plaintiff has demonstrated a right to relief. This matter requires some practical judgment - Fencott v Muller (1983) 152 CLR 570 at 608.
The defendant has not shown any entitlement to the items of plant and equipment. There are some differences in description between paragraph 6 of the claim and defence. According I make an order for the production of the items of plant and equipment in paragraph 6 of the defence.”
When the hearing of this matter commenced before me I raised issues about the nature of the pleadings, and, the many areas of relief. I was then advised that the Master made an order on 14 March 2003 in the following terms:
“1. Direct that time set aside for trial on 9/4/03 be reduced from 7 days to 4.
2.Second plaintiff’s claim for assault against 1^st defendant to be tried separately leaving remaining cause of action and counterclaim to be heard and determined subsequently.
3.Certificate of readiness and copy documents not later than 7/4/03.
4.Directions hearing 2/5/03 at 3pm.
5.Costs in the cause.”
The trial has proceeded in consequence of this order.
WITNESSES
The plaintiff, his wife, Rose Tokic, the medical practitioners, Dr Elliott and Dr Allen and the psychiatrist, Dr Kelly, have given evidence.
The defendants both gave evidence and called Frank Luciano, a person who had also carried out work for the plaintiff and admitted attending the premises on the day in question.
PLAINTIFF’S CASE
Anto Tokic
The plaintiff outlined how he had arrived in this country in 1959 then aged 20. He arrived in Victoria, but subsequently obtained work at the Whyalla shipyards. He moved to Adelaide and was thereafter employed for nearly 18 years by the large building company “Baulderstones”. The plaintiff outlined that in his long period of employment at Baulderstones he eventually became a works supervisor in charge of numerous employees on substantial civil building and engineering projects.
In 1978 the plaintiff said he left Baulderstones and commenced his own company, Tokic Constructions Pty Ltd, with his brother, Joseph. They had a small joinery workshop supervised by Joseph. The plaintiff attended to the carrying out and supervision of civil engineering projects. He said their business expanded particularly in the civil engineering division and that they carried out substantial contracts particularly with government departments. He said he believed that the Department of Road Transport was probably responsible for “95%” of their work. This work was of a heavy construction nature involving building bridges and overpasses.
The plaintiff explained that in recent years there has been a change in the government tendering process, which has affected, to some extent, the nature of their business and the flow of work has not been as regular as it had in the past. However, he still regarded his business as successful and profitable. The plaintiff said in recent times he has been involved in a number of significant building projects including a bridge over the Barcoo Outlet, Holdfast Shores and Salisbury.
The plaintiff said initially he had a business relationship with the second defendant, Tony, and his company, which was called “Primo Constructions”. This relationship existed for approximately 10 years and many construction jobs were carried out in this period. He was also aware that apart from the company, “Primo Constructions”, Tony carried on business under an entity called “Dunrite Project Management”.
The plaintiff said he thought it was in about 1999 when he first met the first defendant, John Stepancic, through his relationship with Tony. He eventually employed John in regard to projects that were on foot in the year 2000. The plaintiff agreed by the end of 2000 a dispute had arisen with Tony and John concerning moneys which they alleged were owing by the plaintiff for work they had carried out.
The plaintiff said that on Friday, 12 January 2001, he was at his work premises at 100 Cormack Road, Wingfield. He usually arrived there at about 6.45am, and sometimes much earlier. He said he had not had a break over Christmas. The plaintiff is obviously a man intently preoccupied with his business activities. I have little doubt that this has been his approach for the entirety of his work life. He said:
"ATony Stephancich come to my place. I said ‘I haven’t seen you for two weeks’.
QJust pause there; were you expecting to see Tony Stephancich that morning.
ANo, I did not.”
He said at that time he was in the workshop some distance from the door. He said the reply from Tony was “I got other business to attend to”. The plaintiff was not aware of anyone else being present. A short time later he saw John and “Frank”. Frank had done some work for him as a concrete finisher. He said he recognised one car, which he thought belonged to a plumber. He said that apart from Tony, John and Frank there was another “tall bloke, wearing a black beanie”. He thought there could have been more than six men present. He said that after he greeted Tony and John, the beanie man pushed him into the office. He was asked:
"QWho pushed you.
AJohn, and he said ‘Sit down’. I didn’t want to sit down straightaway. I said ‘What are you doing that for?’. ‘Sit down and shut up’. They pushed me - one side pushed me, the bloke with the beanie, and John.
QPushed you where.
AOn the chair.”
The plaintiff said after this Frank entered the office. The plaintiff then said he tried to get up because he could hear noise from the workshop area of people moving around and picking up items. Every time he got up John and the beanie man pushed him down “hard as they can”. He said the man with the beanie opened all the drawers and said, “he might have a gun somewhere”. He said John left the office to have a look at what was happening outside. He was left with the “beanie bloke” and Frank. He said he tried to get up but was continually pushed back into the chair. The plaintiff said on one occasion the force that they pushed him down with broke the chair. He thought he had been pushed down at least six times. Another chair was obtained for him to sit on. After this incident, he felt sore in his back and buttock area.
At one stage the plaintiff said that John went and got him a drink of water. When John returned with the water the plaintiff threw it in John’s face. John then obtained the glass and left. The beanie bloke was still pushing him down in his chair. John then returned and threw a glass of water into the plaintiff’s face.
He said that eventually Tony re-entered the office and said, “everything is ready. Let’s go”. He addressed these remarks to John who said “not yet .... I got to pick up the computer”. The plaintiff said at this stage he became emotional and pleaded with them not to take his computer as it contained all of his company business records. Tony said “yes, John, leave it to him”, which occurred.
The plaintiff said that as the defendants were leaving they threw a piece of paper at him. The paper contained a list of all the items of plant that had been taken. He was advised by John to “go and see a solicitor”. He noted that the piece of paper outlined a number of his tools. It was headed “Tokic Equipment List”. After the men left his office he said that he looked through the window and saw cars out the front in his yard. He thought there were at least five or six vehicles. He explained that he had a three-tonne small tipper truck and that the goods had been loaded onto this. He said he believed that Tony and John knew exactly where all the equipment was stored because of their work relationship.
He said the list, as prepared and thrown to him by John, did not contain all of the articles that were removed from his premises.
The plaintiff described how, after this incident, he attended at the Gillman Clinic for the onset of his back soreness and he also sought advice from his wife’s general practitioner, Dr Elliott. The plaintiff said that before this incident he had always enjoyed his work, sometimes going to his premises at two o’clock in the morning, and, that he attended at his premises every day of the year. He said he had never taken holidays or had time away from work with any illness. However, since these incidents he said:
“It change easy. You don’t relax any more. Any time I heard vehicle come in, especially Harley Davidson, frighten me.”
The plaintiff said that at one stage John had come to his house on his motorbike and said, “I’ll fix you up”. This event occurred a few days after the incident. John was also observed by his wife. He said John had returned to his property on his motorbike “roaring down the street”. On this occasion he said his wife observed this. He said since then he has had trouble sleeping. When asked to be more specific he said:
“Every time I go under the quilt, I look at it; why was my money. Why? Why I should get, at my 65 years of age, I should get something done to me as this. I done nothing wrong to him. I will sell the house, I will sell the business, they’ll be paid, but in the proper way. I left a communist country 45 years, it happened to me in Australia, by people like that, I don’t think it’s right.”
He said it got to a stage where he was scared to go back to work. He said this was also after a time when John had stopped him on OG Road, Payneham and demanded his money. He said John then said words like “I’ll fix you up, I get what I want”. He said that since this time he has also had nightmares about the incident. Before this incident he would attend social events at his soccer club, but is now an infrequent attendee.
The plaintiff was referred to Dr Kelly, a psychiatrist. He saw him on a number of occasions and was prescribed medication. He said this has helped him to “cool down and relax”.
He was asked about his company and he answered as follows:
"AHappened; I don’t work it. I’m quite capable of doing it, but I’m not working as I used to, because for the first twelve months I couldn’t do it, they took all the plant, it would be impossible to operate, I didn’t have nothing, not even sales, they took whatever they could.
QCan I just interrupt there. Are you saying that for the first twelve months after the incident you didn’t have your equipment, because they had taken it.
AThat’s correct, I couldn’t do nothing.
QSo you couldn’t do anything.
ACouldn’t do nothing.
QAfter you got your equipment back, though, what’s happened.
ASlowly I started building and started working.”
He said he had not tendered for jobs in recent times because of a complete system change. He had to revise the system and “it’s damn hard”. He said he and his wife had placed money for their retirement in a fund and that some of that money had been used to pay their bills. However, this was an area that the plaintiff’s wife had control of, rather than him.
The plaintiff said that physically he could lift before the incident, but now has difficulty with lifting. His back gets sore and he cannot walk properly. He said before the incident he would employ four to five people whereas now the only person he employs is a Tony Simlesa and hires employees from labour hire agencies.
The plaintiff maintained in cross-examination the forcible nature of the incidents, which occurred when John and Tony arrived at the workshop. He denied that he had walked into the office area, but maintained that he was pushed. He denied that in the initial conversation he said words like “piss off, we didn’t make any money, go away”. He said he did not walk to his desk of his own free will, but was pushed by John. The plaintiff maintained that the three men in the office were John, the “beanie bloke” and Frank. He said he did not recall John using a mobile phone and denied there was any conversation that involved John having upset his wife. He also denied that there was reference about taking his tools and that he said words to the effect of “take the fucking tools”.
Rose Frances Tokic
Mrs Tokic confirmed that they were married in 1966 and described her husband as “a workaholic ..... Tony works seven days a week. Never a holiday, not once. Never a sick day. He was - I mean he was a workaholic”.
She outlined that after her husband’s brother left the business she became more active in the administration of the business and this continued until about 1998.
She said prior to 12 January 2001 she had never seen her husband depressed. She confirmed that there were two incidents with a motorbike at her home in Fitzroy and that these occurred within a few days of each other. She described how there is a remote control gate at their house property and that she is able to operate the gate from outside the house. She said as she did this to let her husband into the drive she heard a loud noise in the background with someone saying “Tony” in a very loud voice. She then looked up and saw the motorbike and a man leaning on the motorbike. The person on that motorbike was facing her when she was standing in the carport. She became interested to ascertain why this person was screaming at her husband. She recognised the person as “Johnno”. She confirmed that this was the defendant, John Stepancic, and that she had seen him on three prior occasions. She identified him in court. She was unable to grasp what he was saying on this day.
Mrs Tokic then described a subsequent incident when her husband was home and she heard a motorbike in the street. She said that was unusual as they do not have many motorbikes in that street. It slowed and stopped. She described the manner of the loud noise that the motorbike was making. She saw the motorbike then drive off and recognised that it was “Johnno”. She said when she discussed the matter with her husband after the first visit of the motorcyclist he told her of the incident that had occurred at the workshop.
She said she was aware that there was a change in his behaviour because:
"AWhen you live with someone for so long you know when things are right and things are wrong because the person - he became very quiet, started to come home early, which was a very big surprise - I didn’t complain mind you, he always come home very late - and he changed.
QHow did he change.
AAs I said, he become very quiet, very withdrawn, unhappy, very, very unhappy.
QWhat had he been like before he had changed.
AHe would come home, because I’m very quiet person, I never put radio on full blast or anything, I prefer everything quiet. When Tony comes home the house was full. It was loud, it was kind of full of life, that’s what I always envy about him because he was always full of life but after that it just changed.
QFor how long had he been different before the motorbike incident, approximately.
AWeeks.”
Mrs Tokic said that it was after this that the plaintiff stopped sleeping in the main bedroom as he was screaming during the night, saying words like “no, no, leave me alone”. She would notice that their bed was soaking wet. She said the plaintiff has continued to sleep in the spare room up to the present time. She said that since January 2001 her husband has changed physically. He has lost weight, does not eat as much, limps and “looks different”. She said that she felt he was becoming “a miserable human being”.

Mrs Tokic said she was aware that the building company had put money aside for superannuation benefits for her husband and herself and that this had happened over many years. However, in recent times this money has been drawn upon for their needs. Mrs Tokic was aware that some $170,000 or $180,000 was due from Baulderstones and because it had not been paid there was a transfer of some $90,000 from the superannuation fund to the company. This occurred after 12 January 2001. She believed it was a loan from the superannuation fund to the operating company. Similarly there was a further $120,000 and this again was a form of a loan.
I asked some questions of Mrs Tokic. I was concerned with the area of economic loss and asked Mrs Tokic whether she was acting on any advice in transferring moneys from the superannuation fund. She said that she was acting on the advice of their accountant, a Mr Bund. I then asked her:
"QSo you talked about the company and then he recommended you do this.
ABecause we were building the new factories. The money was used to live on and to build three new workshops. And those workshops are our superannuation, instead of having money in the bank.
QYou were putting it into the real estate.
AThat’s it.
QBut that real estate was in the name of Tokic Constructions, was it, and not just -
ANo.
QWhose name.
AThe family trust.”
In cross-examination she confirmed her evidence-in-chief and particularly that the plaintiff was still sleeping in the spare room and still having nightmares.
Dr Mervyn Richmond Allen
Dr Allen deposed that for 30 years he had worked as a specialist anaesthetist in the cardiac unit of the Royal Adelaide Hospital. For a number of years since his retirement he has worked at the Industrial Medical Clinic at Gillman. That involves treating relatively minor industrial accidents. He has been in that employ for approximately eight years.
Dr Allen supplied a number of medical reports concerning his treatment of the plaintiff, which were tendered. He saw him at approximately 10.20am on 12 January 2001, a few days later on 15 January 2001 and about a month later in February 2001. He thought he had seen the plaintiff on about five occasions. He initially noted allegations of an assault.
Dr Allen said he was aware of the fact that the plaintiff alleged he could not sleep, had lost weight and was unable to concentrate. He said he conducted some investigative tests and recommended antidepressant medication.
Dr Allen said he had noted initially that the plaintiff had suffered bruising injuries to the right side of his neck and bruising of the coccyx. He said he could see no visible presence of bruising, but there was tenderness in both of those areas. He assumed there was a process of minor subcutaneous bleeding and swelling which was not obvious and further believed the complaints were genuine.
On the second occasion on 15 January 2001 he noted tenderness in both these areas and felt the pain was not as extensive, but still was of the opinion that the plaintiff was distressed because of the nature of the assault. His notes recorded, “he is clearly quite stressed”.
Dr Caroline Jane Elliott
Dr Elliott is a general practitioner at North Adelaide and has been in practice for some 19 years. She first attended the plaintiff on 17 December 2001. She believed that he had been attending the practice since about 1991, and she had seen him on and off since 1992. She said that when he first presented in December 2001 there were suggestions of some irregularity of his heart and he was referred to a cardiologist.
Subsequently, she referred him to the psychiatrist, Dr Kelly, as she herself had made a diagnosis at her level that the plaintiff might be suffering from a posttraumatic stress disorder and needed professional assistance.
Dr Elliott also said that she had continued seeing him particularly about pain complaints with his leg and back.
In cross-examination, Dr Elliott confirmed that in recent times it was apparent from CT scans that the plaintiff had a very degenerative spine. She said that he had significant degenerative back problems and “in my opinion, may have been made worse by trauma”. She was asked:
"QWhen you say ‘may have been made worse by trauma’, are you referring to any particular trauma.
AThe assault that he had, and there’s no way I know of separating it out. That’s where the specialists should be doing it, telling us, I suppose.”
Dr David Stewart Kelly
Dr Kelly is a psychiatrist. He prepared two reports concerning the plaintiff. He confirmed that the general practitioner, Dr Elliott, referred Mr Tokic to him in February 2002 and since that date he has seen him on some nine occasions. During this time he had also conferred with Mrs Tokic.
Dr Kelly confirmed that at the time of his initial assessment he believed that the plaintiff was suffering from a posttraumatic stress disorder and his subsequent attendances have confirmed that diagnosis. His initial view was:
“It is likely that over the next six to 12 months there will be further improvement in his clinical state and that with that occurring eventually his condition will stabilise.”
He said subsequently that this prognosis was not correct, as his condition had fluctuated with deterioration in the first part of 2003. Subsequently, after a change of medication, there has been a resulting degree of improvement in his emotional state. He said:
“It is likely that Mr Tokic will continue to be significantly impaired. However, over a period of time in his life there will gradually be an improvement to some degree of his symptoms.”
He then said, having seen Mr Tokic a few weeks prior to trial, in his opinion he was now better than he was when he wrote his original report a year ago, and, indeed, said significantly better. He said:
“Although there are still avoidance behaviours and still intrusive symptoms and disturbances of his sleep, my understanding of his general well-being is there is a degree of improvement with that.”
He believed that this was due to the current antidepressant medication and viewed him, notwithstanding the improvement, as remaining significantly impaired. He said at the present time his symptoms would continue over a considerable period of time, and, that perhaps with the resolution of these court issues this could result in some decrease of his attention and focus of these issues. He said this did not mean there would be a rapid resolution, as, clearly, he had a tendency to be obsessed about the incident and the people involved. He also said that this incapacity had affected his capacity to work. Since the incident he had a tendency to avoid work and did not have the same motivation and drive for his work that he had before the incident.
Dr Kelly said from the history he obtained from Mr Tokic that this condition resulted solely from the incident. He confirmed the intrusive nature of the symptoms and the nightmares all revolved around factors associated with the incident. He noted the motorbike incident and said even the sound of motorbikes makes the plaintiff nervous and touchy.
He also commented that having his property taken and not returned for some 12 months did not assist the plaintiff’s condition, indeed, it upset his general psychological wellbeing.
DEFENDANTS’ EVIDENCE
Both defendants gave evidence as well as Mr Frank Luciano.
John Paul Stepancic
John outlined that he first met the plaintiff in about 1994-95 through his cousin, the second defendant, Tony. In about the year 2000 he became involved in civil works with Tony and the plaintiff. John briefly outlined the number of projects in which they were all involved.
In this time, he and his cousin established a company called Dunrite Project Management Pty Ltd, which oversaw some of the projects. He believed that four of these projects in which he was involved with the plaintiff were completed during 2000. Work invoices were tendered to the plaintiff in November and December 2000. He believed the principal contractor made progress payments and the moneys were then due to him and his cousin by the plaintiff company.
He recalled an incident in about September or October 2000 when he went to the plaintiff’s home. This was because of a work incident involving Frank Luciano. Mr Luciano had indicated that he was not proposing to return to the job. Mr Luciano was a concrete finisher. John was aware that a particular contract pour was to occur and said he decided to call at the plaintiff’s home and discuss with him the nature of the issue between himself and Mr Luciano. He said he went to the front door of the house and Mrs Tokic answered the door. He said he was only there a matter of perhaps 90 seconds and left when Mrs Tokic advised him that her husband was asleep.
He said that by December 2000 he believed his cousin, Tony, had spoken to the plaintiff on many occasions. The plaintiff would not confer about the moneys owing and “told Tony he didn’t want to talk to him”. However, by 12 January 2001 his view was that moneys were still due and owing by the plaintiff to himself and his cousin.
He said shortly prior to 12 January 2001 he decided they would try, on one more occasion, to speak to the plaintiff and discuss the issue of money. He was asked what he had decided prior to 12 January 2001. He said:
"AIt was with my cousin, Tony, and we decided that we would try one more time to speak to Mr Tokic.
QDid you hatch some sort of plan.
AYes, I did.
QWhat was that.
AThat we would go and speak to Mr Tokic, if Mr Tokic was not prepared to discuss the issue of the money outstanding to us we would take only the tools and the equipment to the value of the money that we believed was outstanding to us and put them in storage, until he sat down to the table and negotiated with us or at least explained to us where we had either lost or made money.
QYou enlisted the service of others to help you with that project if necessary.
AYes, I did.”
John said that he arrived with Tony, and Tony entered the workshop first. He said the plaintiff was standing in the workshop talking with one of his employees. He said he saw the plaintiff and Tony shake hands, but could not hear what was said. He said he was sitting in the vehicle observing this meeting and thought it was an amicable discussion. He entered the property and said the plaintiff headed towards his office and that he followed. Eventually, the plaintiff was sitting behind his desk and Tony was at the desk. A discussion ensued about the moneys with the plaintiff saying, “we hadn’t made any money”. It was mentioned that progress payments had been made, which included a wage component. He said the plaintiff again flatly refused point-blank and kept saying, “we lost money, we lost money”. He said there was then a reference to a flower incident involving himself and Mrs Tokic. He said that on many occasions he had asked the plaintiff why he was not going to pay the money that was due to them. He said:
“He kept insisting that we had lost money. We indicated to him that if we had lost money then that was all well and good but we wanted to see some form of documentation with respect to where and how we had lost those moneys and we also indicated to Mr Tokic, if we had lost money on the projects then we wanted to know how much of the loss, how much of a loss we had sustained and that we were prepared to incur 50% of the loss.”
John then said that there was a mention of tools as follows:
"AWe told Mr Tokic that if he didn’t discuss with us and explain to us where the money was and what the situation was with respect to the payments then we would take tools and equipment to the value and we would put them in storage until he sat down at the table with us and told us what went on with the money.
QDid you receive a response from Mr Tokic when you told him that you proposed doing that.
AYes, I did.
QWhat did Mr Tokic say to you.
AHe told me to ‘F off’ and take the tools.”
He said it was at this stage, clearly after some earlier pre-planning, that he pushed the “send” button on his phone. On receiving that signal, the other men arrived and removed the goods. He said that the men were Otello Sandon, Peter Burton, Troy Alviti and Brian Page. Frank Luciano was also there, but he did not help load the tools. He said it only took several minutes to load the equipment onto the vehicle.
John said Frank Luciano came into the room and then Tony left. Tony said he had to go to the toilet, and Frank remained in the office. He said Tony came back on two or three occasions while the equipment was being loaded. He said prior to arriving at the factory he had prepared a list of equipment to be seized. This was produced to him as Exhibit P3 headed “Tokic Equipment List”. He said Tony had prepared the list and had it with him when he arrived at the factory. They were the only items that were loaded onto the vehicle. He said there was much other plant and equipment within the factory that they did not seize “worth hundreds of thousands of dollars”. He said that for most of the time Frank sat on the office side of the plaintiff’s desk and he sat on the corner of the desk.
He said he recalled an incident when he got a glass of water for the plaintiff as he said he was thirsty. He put it in front of the plaintiff who then threw the contents over him. He said he then left the office, went back into the kitchen, got another glass of water, returned to the office and threw that water over the plaintiff.
He said he recalled a discussion about a computer, which occurred after Tony came back into the office and said that the “boys” were leaving. He said there was a discussion that there might be information about whether they had lost money in the computer. For that reason he said that the computer should also be seized. At that time the plaintiff started crying and said “please, please don’t take my computer”. Tony then said “’Let’s leave the computer’ and I said ‘Your call’ and we left”. He said to the plaintiff when he left the list with him that “if you’ve got a problem with this ring the police”.
He said that the vehicle and equipment was taken to a storage facility on Torrens Road. That had also been pre-arranged. He was aware that the equipment was covered by insurance.
John said that since this occasion he had seen the plaintiff on one occasion on OG Road when he had attempted to have a brief discussion with him about the outstanding moneys, but there had been no discussion.
John said that he does own a Harley Davidson motorcycle, which he purchased on 18 January 2001 and produced the evidence of that purchase. He said he had previously owned Harley Davidson motorcycles but had not owned one since 1992. He explained his movements, particularly after his sister’s wedding at Geelong on 20 January 2001, and that after that he had been away touring for some time on his motorcycle.
John said that he had heard the plaintiff’s evidence about a motorcycle in and about his home shortly after this incident. He said he did not know anything about that incident, nor, the incident as deposed by Mrs Tokic of the motorcyclist she identified as himself.
John confirmed in cross-examination that the signage of Tokic Constructions on the truck had been removed when it was placed in storage. He was asked why he did that. He said:
"AI removed it so that, where it was in the storage - because the tools and the equipment that was sitting in the back of the Ford trailer was put into a little lock-up room with a padlock on it for insurance purposes, and the Ford trailer was then parked with the other vintage vehicles and boats and things that are parked there, and that’s where it remained until the day we loaded it all back up and took it back to Mr Tokic.
QI’ll try to make the question a bit clearer. Why did you remove the stickers on the driver’s door of the truck. Do you understand the question.
AYes, I do.
QWhat is the answer.
ASo that nobody would know that it was Mr Tokic’s truck in that storage facility.
QNo other reason.
ANo other reason.
QWeren’t planning to sell it.
ANo. I can’t sell it. I don’t own its registration papers - don’t own the vehicle.”
John reiterated that he had placed a hand on the plaintiff when they entered the premises, but denied that there was any occasion when the plaintiff was pushed down or restrained in a chair. He said that while Tony was in the office he remained with the plaintiff, as Tony was in charge of loading the vehicles.
He was asked why Frank Luciano was present and said it was because he also wanted to ask the plaintiff why he had not been paid. He conceded that Frank’s only role was to sit with the plaintiff, but he was not there in any intimidatory role. He denied saying words to the plaintiff like “sit down and shut up”. He also denied that the plaintiff had tried to use the phone. He said he did not see anyone pulling the phone connection from the socket and denied the collapsing chair incident.
Antonio (Tony) Stephancich
Tony confirmed that he was a cousin of the first defendant, John Stepancic, and that he had worked in the construction industry for most of his life. He said initially his business name was Primo Constructions and that he came to know the plaintiff through his construction company. He said prior to the year 2000 they had probably worked on eight to ten major construction undertakings. In this time they would often confer about the amount to be tendered for jobs bearing in mind his specific expertise in concrete work.
Tony confirmed that in the year 2000 he worked on projects at the Waite Institute, Barcoo Outlet, Holdfast Shores and West Lakes and it was his understanding that by December 2000 the plaintiff owed him moneys. He said he had phoned the plaintiff several times, attended upon him and eventually felt the plaintiff was just ignoring him. He said:
“I believed that I was being ignored all of the time, that’s what I believed. For some reason, when it came to money, he just ignored me this time; just didn’t want to know me. After all these years, it didn’t seem to matter any more.”
He agreed that he and John made the decision to attend the plaintiff’s premises on 12 January 2001. He said they reached this decision because they could not get any satisfaction as the plaintiff used words like “go away .... the money’s not ready yet, I can’t show you anything”. He said he was completely frustrated with the attitude of the plaintiff. He was asked:
"QYou have heard evidence from your cousin John about a plan that you and he had put together where a number of other tradesmen would assist you in loading up some gear from Mr Tokic’s yard.
AI am guilty of that, correct.”
He outlined that on this morning they met at the BP truck stop at about 6.30am and prepared, as he called it, their “plan of action”. They then went to the plaintiff’s workshop. When he arrived he saw the plaintiff, walked up to him and spoke with him. He believed he said to him something like “Happy New Year” and then “we are here to talk about some money”. He said the plaintiff had a blank look on his face and basically said that there was nothing to talk about. He said his cousin John then joined him and John said:
“Words to the effect was that we needed to talk about the money, that we wanted to know where we’d lost money because that was the story that we were getting from Tony; that was the reason we weren’t being paid.”
He said that while they were doing this the plaintiff just turned, walked away and went to his workshop. The plaintiff then went into his office and sat at his desk. He sat behind the desk. Tony said:
“I said a few words and then John had a few words to say about it and Tony kept saying ‘We’ve lost money. Go away. I don’t want to know about it. Just go away. We’ve lost money’.”

Tony said after the plaintiff had said there was no money, he thought John had replied “we are here to take the tools then if there’s no money”. John then pressed his phone, which was “a signal for the boys” who arrived and loaded the equipment. He said that at this time Frank Luciano entered the office and he left to organise “the stuff being loaded”.
He said that he had prepared the list of equipment, being Exhibit P3. He said he was well aware, having been in the workshop over the years, of the equipment that was in the workshop. He was asked:
"QWas the equipment that you had on the list, all of the equipment at the factory, or most of it.
ANo, nowhere near it. There was, like John said, there was hundreds of thousand of dollars worth there that we could have taken. There was no point. We only needed to take what he had in value to that we believed was owing.”
He said that after the loading was completed he returned to the office where a discussion about the computer occurred. He said:
“John wanted to take it and Tony was crying, just shedding tears, like, saying ‘Don’t take my computer’, and ‘Don’t take my computer’ and - I don’t know - I had a soft spot for Tony and I said ‘Let’s leave it. He needs it for his work anyway’. So we left the computer.”
He confirmed that they then drove to the self-storage units on Torrens Road where the truck and equipment was stored.
In cross-examination, Tony said that they went to the workshop to negotiate for the outstanding moneys. He denied that the plaintiff was “escorted, or ushered, or pushed into his own office”. He conceded that he was aware that the plaintiff owed moneys to Frank, and that, in fact, he, himself, had paid those moneys.
Frank Luciano
Frank Luciano is a young man and gave his occupation as a concrete finisher. He said that he had been involved in this work since the age of 15. He said that he knew the plaintiff. He is related to the defendant, Tony Stephancich. In the year 2000 he said he worked on the projects at Barcoo Outlet and West Lakes. He understood that the plaintiff’s company was involved in those projects. He said John and Tony also worked on these sites and he worked at the request of Tony.
He said he thought that it was at the end of 2000 or early 2001 when John and Tony spoke to him about difficulties they had encountered with the plaintiff. He understood Tony was developing a plan in regard to this problem. He agreed that he attended the workshop with a group of men in January 2001. He initially met the men at the BP service station on Grand Junction Road. He said that he believed Tony and John were going to see the plaintiff and talk about money and if that did not work they would then “give us a ring and we were going to come down”. The phone call occurred and he then attended the workshop. When he arrived at the workshop he said he went into the office and spoke to John. He said John said to him, “sit in the office with Tokic”. He complied with this request.
He said when he was in the office the plaintiff was seated at his desk. He said he recalled that there was talk about the money that was owed to John and whether or not the plaintiff was going to pay. He said the plaintiff was saying that he had no money or that they had lost it all or similar words. He said he believed that he remained in the office for ten to fifteen minutes. He said that for all this time John remained in the office and Tony was “floating in and out”.
He said he was present when the plaintiff asked for a glass of water. When that was received it was thrown at John. He was asked:
"QWas there an answer in kind by Mr Stepancic after that occurred, another incident involving water that you remember.
AI couldn’t be real clear on that, no.”
He said he took no part in the conversation and that while he was in the office there was no physical contact between any person in that office. He denied that while he was there that the plaintiff was restrained in a chair.
CREDIT
The plaintiff and his wife were both impressive witnesses. I believe they were endeavouring to recall exactly the events which occurred in this unfortunate saga. After a consideration of all of the evidence, including that of the defendants, I have little doubt in accepting their evidence.
The plaintiff has been a man obsessively devoted to his work. He is stoic by nature and has obviously had little time for any matters, even his own family and personal health outside of his business activities. The impression I gained from his wife was that very much his preoccupation with work was the sole interest in his life.
When considering credibility there are pointers that support such a finding. The pointers in this case all support the evidence of the plaintiff. For instance, he was so shocked by this incident that he immediately sought medical help. This action was out of character. He attended Dr Allen’s surgery and complained about his injuries from being forced into a chair. It was all consistent with his evidence.
Dr Allen’s findings support what he viewed as genuine complaints. The notes of Dr Allen’s of 12 January 2001, among other things, showed an irregular pulse and bruising injuries and, subsequently, lead to his finding of a distressed state. This must lead to a finding that this was caused by the physical violence and intimidation.
One can accept the plaintiff’s concern while he was being restrained in the office by at least three men of very substantial build demanding satisfaction for their debt. I accept he remained quite passive and completely uncooperative in the encounter that concluded with his goods being removed by the additional men. It was highly unlikely that he would have simply remained seated in his chair. Indeed, the water incident showed the nature of the intimidation and his dogged determination to resist the demands. This admitted act shows the forceful manner of John’s stance. John admitted that he told Frank to “sit in the office with Tokic”. My finding is that John was the principal planner of the visit and supervisor of the discussions and events.
The defendants admitted the nature of the planning that was involved. I accept that there was great frustration on their part because of the dogged attitude of the plaintiff in refusing to in any way acknowledge or debate the outstanding debt. Clearly, moneys were owing to the defendants. The plaintiff must be criticised for the total unwillingness on his part to in any way be involved in discussions concerning payment to the defendants of what was rightfully due to them. It is not for me to speculate on why the plaintiff had reached this obvious dogmatic attitude. There may be many reasons. One may well have been the lack of profit, but this in no way excuses the plaintiff from not discussing these issues with the defendants.
However, having said that, the defendants’ actions were appalling in the intimidatory and restraining manner they dealt with the plaintiff on this morning by the removal of his truck and plant and equipment. It is conduct that deserves the severest censure and rebuke.
John Stepancic, as I have mentioned, showed in his evidence what I would describe as an almost extroverted fixed arrogance and complete lack of any consideration for the plaintiff. John is a man of significant build as indeed are the others including Frank. His arrogance was illustrated by his actions in retaliating in the way he did with the glass of water. His attitude came to the fore when he described the computer incident. He suggested to Tony, in the presence of the plaintiff, that they remove the computer. He admitted at this stage the plaintiff started to cry for the first time and said “please, please don’t take by computer”. For the plaintiff to cry shows the extreme extent the morning’s events had on his wellbeing. He was asked:
"QDid you have a discussion with Tony about the computer.
AI wouldn’t call it a discussion. Tony looked at me and said ‘Let’s leave the computer’ and I said ‘Your call’ and we left.”
“Your call” shows his self-absorbed arrogance in the dealings and reflects poorly on John, bearing in mind he was then in the company of his friends dealing with a defenceless 62-year-old man.
I accept the evidence of the plaintiff and his wife of the subsequent intimidatory attendances at their home by John on a motorbike.
FINDINGS
My findings are as follows.
1.On 12 January 2001, the defendants and five other men, after a planning meeting earlier on this day and a prior preparation of the equipment list, attended at the plaintiff’s workshop. This attendance was for the purpose of endeavouring to gain a final resolution in regard to the moneys, which were owed to them, and, in the event that this was not successful, the plaintiff would, if need be, be forcibly restrained whilst his truck and plant and equipment were removed from his premises and placed in storage.
2.Tony was the first to approach the plaintiff. Shortly thereafter, John and Tony accompanied the plaintiff into his office. John stayed in that office for the whole time in which there was the initial discussion. The discussion was unsuccessful and then John gave the prearranged signal for the other men to arrive and remove the equipment. John had stayed in the office of the plaintiff for most of this period. There was also another man present wearing a beanie. At a late stage Frank Luciano arrived and spent some time in the office whilst the others were in the workshop. Frank had had a prior disagreement with the plaintiff about payment of wages. Tony assisted in the removal of the goods as he had knowledge of the same.
3.The plaintiff was deliberately restrained by John and assisted by the “beanie man” at all times in the presence of Frank. I find that John had no intention of allowing the plaintiff at any time to leave the office that morning until he had gained some satisfaction, either by payment or proposed payment of moneys and/or seizure of goods.
4.Prior arrangements had been made for the storage of the truck and equipment including the deliberate removal of all signage and registration plates from the vehicle.
5.The plaintiff was forcibly detained against his will in his office, both during the initial discussion and while the plant and equipment was being removed. The detention may well have been in the order of 15 minutes. John was the principal person responsible for the events on the day. John would expect his directives to be obeyed, for instance, probably seen more in the nature of an ultimatum of asking the plaintiff’s one employee, Mr Simlesa, to leave the workshop. The sole reason for the presence of Frank was the detaining of the plaintiff in his office while the goods were removed.
6.John subsequently rode his motorcycle on two occasions in the vicinity of the Tokic residence.
DAMAGES
The effects of these quasi-criminal acts on the plaintiff have been devastating. Prior to the incident the plaintiff was rarely ill. He avoided seeing doctors and enjoyed a totally obsessive working life, and some family and social activities. The plaintiff would be classified as a workaholic. However, since this time he has significantly reduced his working hours. He takes medication to assist his symptoms. I accept the evidence of the psychiatrist, Dr Kelly, that these forcible acts on his person have resulted in him suffering an ongoing posttraumatic stress disorder.
I accept the evidence of the plaintiff’s wife that he has become by nature reclusive and that he now rarely communicates with her and his daughter as compared to his prior manner of life. He has slept in a separate bedroom from his wife from shortly after the incident. He has experienced frequent nightmares and regularly awakes covered in perspiration. His suffering is ongoing. All of his health issues have had a significant effect on his work abilities and are related to this incident.
The plaintiff has sought damages for:
·     Past non-economic loss
·     Future non-economic loss
·     Future loss of earning capacity
·     Future medical expenses
·     Special damages
·     Aggravated and exemplary damages
Non-Economic Loss - Past And Future
The plaintiff was aged 62 at the time of the intrusive acts. He was then a man who was very much in control of his life and work, but as was probably the case, not as intimately involved in the government tendering process or his building activities as he had been in his early years. However, because of the nature of his disposition he was still preoccupied with his work.
Since this time his work and social life has very much been a disaster. Dr Kelly was initially a little optimistic in his treatment of the plaintiff and whilst now noting that there has been some improvement, the plaintiff is still experiencing significant psychiatric symptoms and suffering from a posttraumatic stress disorder. Dr Kelly’s prognosis was that the plaintiff will continue to be significantly impaired, but he hopes, as often is the case, that there will be an improvement in his symptoms from the resolution of this matter.
My finding must be that the plaintiff has suffered almost three years of pain and considerable mental anguish from the acts of the defendants and it will be ongoing.
I propose to fix the following awards:

· Past non-economic loss $25,000

· Future non-economic loss 15,000

Economic Loss

The plaintiff has also sought damages for economic loss.
During the course of the trial I raised the issue of what I saw as the lack of proof of damage under this head, which was clearly available in the circumstances of this case.
I have found that the effect of his injuries on his daily working life has been dramatic if not devastating and is ongoing. The plaintiff in effect said that he had little knowledge of the financial management of his business, but left this area to his wife, albeit, somewhat vague allegations of the need to apply moneys to the ongoing business activities from a superannuation fund. Mrs Tokic described how, acting on accountancy advice, moneys were transferred from their superannuation fund to the business, but added that moneys were also being applied for the purchase of real estate in an endeavour to secure their future.
In these circumstances it is incumbent to establish by specialist accountancy evidence the nature and history of this company in recent years and the manner of work input of its employees, importantly the plaintiff. There were allegations of detailed changes in the tendering process and the seeming reluctance of the plaintiff to be involved without specialist assistance. I have no evidence of the company’s financial history or its viability in recent years, particularly since these events. Appreciating the plaintiff’s work limitations, I was left in this confused state as to the overall viability of the business and the events that have no doubt affected its operations. I noted that in the past the company had employed a number of employees, but at the time of the incident there was only one.
Establishing the plaintiff’s gross income over the years from this company does not assist me to define his economic loss. As I have mentioned, there may be a variety of matters affecting the financial operation of this company not associated with the plaintiff’s clear inability to work because of the resultant stress from the assaults of 12 January 2001.
I reluctantly allowed tax returns, which had not been discovered, to be tendered. These tax returns showed the plaintiff’s gross taxable earnings as:

1998 $20,783

1999 $36,000

2000 $36,000

2001 $12,055

They show a substantial drop in personal income, but I have no evidence of the financial trading or viability of the company.
I am unable to make any finding of economic loss.
AGGRAVATED AND EXEMPLARY DAMAGES
Damages
John was very much the principal participant in the wrongs. Tony was readily involved and must be held as a joint tort feasor.
In summary, my findings are that the plaintiff was detained, intimidated, assaulted and his goods wrongfully seized and detained by the actions of the defendants. The goods were not returned voluntarily. In fact, there was a steadfast failure to return the same until the Master in the contested interlocutory proceedings rightfully directed their return. This continued detention of the goods reflected the arrogance of the defendants’ attitude towards the plaintiff and clearly because of the time delay the continued detention has played a part in the plaintiff’s ongoing problems.
The acts of the defendants and their associates on the day of the incident were appalling. There is no place for this type of intimidatory “street justice” and acts which were clearly accompanied by the assault on the plaintiff.
The defendants had legal options open to them in regard to the recovery of their moneys without resorting to these forceful actions.
A plaintiff who has been falsely detained may be awarded damages for any pecuniary and non-pecuniary loss which he has suffered. The plaintiff may also recover any consequential loss or damage to his health or pecuniary interest provided it is not too remote - Australian Torts Reporter 1996 CCH paragraph 46-940.
“In Walter v Alltools Ltd (1944) 171 LT 371 Lawrence LJ suggested that there are three heads of compensable non-pecuniary loss which would be recoverably by a plaintiff, these being: injury to liberty, injury to reputation, including disgrace and loss of status, and injury to feelings such as indignity, mental suffering and humiliation.
In addition a plaintiff may also be awarded aggravated or exemplary damages against the defendant. In Walter’s case the plaintiff was an employee of the defendant who had been detained whilst allegations of theft were investgated. In assessing damages, Stable J took into account the fact that the defendant had expressed no regret to the plaintiff for the detention, that it had not notified his fellow employees that the plaintiff had been exonerated from suspicion, and that the defendant had written a letter which suggested that the plaintiff’s conduct was suspicious, and that the imprisonment had thus been justified.”
The remarks of the former Chief Justice in the case of Lackersteen v Jones and Others (1988) 92 FLR 6 are appropriate. This was a case where the plaintiff, a petty criminal, brought an action against several police officers for wrongful arrest, false imprisonment and assault and battery. The learned Chief Justice found the actions of the police officers entitled the plaintiff to compensatory, aggravated and exemplary damages. The assault actions by the police officers were appalling, including firing a gun near the plaintiff’s head and then, in effect, playing Russian roulette with the same gun near the head of the distraught plaintiff.
The learned Chief Justice discussed the authorities. He found that the plaintiff had suffered very little economic loss. He commented:
“I turn therefore to the question of whether the plaintiff should receive aggravated damages or exemplary damages or both. Again I am of the view that the appropriate award should encompass the torts of wrongful arrest, false imprisonment, assault and battery (this is trespass to the person) and I consider that if damages are to be awarded, on the basis of aggravation or punishment, which I take to be the broad distinction between the two, that such damages necessarily flow from the combination of torts committed upon the plaintiff on that day; although I express the view that by far the greater part of those damages would be in relation to the assault and battery that is, trespass to the person. I appreciate that there may be a distinction between the torts of false imprisonment (which in the circumstances of this case I would couple with the wrongful arrest as being the fons et origo of the false imprisonment) on the one hand, and the assault on the other in this sense that what might be considered aggravated damages under the heading of assault may be general damages under the heading of false imprisonment. In McGregor n Damages (14^th ed, 1980), par 1357 the statement appears that damages for false imprisonment are generally
‘not a pecuniary loss but a loss of dignity and the like and is left much to the jury’s or judge’s discretion. The principal heads of damage would appear to be the injury to liberty, i.e., the loss of time considered primarily from a non pecuniary viewpoint, and the injury to feelings i.e., the indignity, mental suffering, disgrace and humiliation, with any attendant loss of social status. This will all be included in the general damages which are awarded in these cases; no breakdown appears in the cases.’ [Emphasis added.]
The items there mentioned would more appropriately be considered aggravated damages so far as the tort of assault or trespass to the person is concerned. Nevertheless, in my view, little is to be gained in compartmentalising the damages flowing from a continuous action and series of torts which took place on 24 April 1982.
I turn therefore to the next question to the difference between aggravated and exemplary damages. It is difficult to draw the dividing line: see, for example, the judgement of Lord Devlin in Rookes v Barnard [1964] AC 1129 at 1221-1232; Bahner v Marwest Hotel Co (1960) 6 DLR (ed) 322 at 330; Lamb v Cotogno (1987) 164 CLR 1 at 8-9. In Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR at 129 (Uren’s case) Taylor J said;
‘It is perhaps desirable to point out that there had been a degree of confusion between “aggravated” and “exemplary” damages and sufficient attention has not, in the past, been given to the distinction between these two concepts. The former are, of course, given by way of compensation for injury to the plaintiff, though frequently intangible, resulting from the circumstances and manner of the defendant’s wrongdoing. On the other hand exemplary damages are awarded, as Lord Devlin says in Rookes v Barnard to “punish and deter” the wrongdoer though, in many cases the same set of circumstances might well justify either an award of exemplary or aggravated damages’.”

The learned Chief Justice mentioned the comments of their Honours in the case of Lamb v Cotogno (1987) 164 CLR 1 at 8-9:
“’Aggravated damages, in contrast to exemplary damages, are compensatory in nature, being awarded for injury to the plaintiff’s feelings caused by insult, humiliation and the like. Exemplary damages, on the other hand, go beyond compensation and are awarded “as a punishment to the guilty, to deter from any such proceeding for the future, and as to proof of the detestation of the jury to the action itself”: Wilkes v Wood (1763) Lofft 1 at 19; 98 ER 489 at 498-499 per Pratt LCJ.’”
And then further commented:
“These remarks, coupled with the remarks of their Honours in Uren’s case and particularly the remarks of Taylor J in that case which I have already quoted make it clear that in Australia there is a recognised distinction between aggravated and exemplary damages and in appropriate cases either or both of these types of damages can be awarded. Nevertheless, and although the exercise may be difficult, care should be taken to avoid ‘double dipping’ where the circumstances permitting either category overlap.
Turning first to aggravated damages it seems therefore that the basis lies in compensation but compensation of a particular kind based not on physical injury or discomfort but on humiliation and injury to feelings. In that sense it may simply be a factor in the calculation of compensatory damage and not a separate heading or sub-heading of damages. In this case however, and particularly when I am awarding also exemplary damages, it seems important to specify a distinction even if it may not really exist between compensatory damages and aggravated damages even if that category may be no more than compensatory damages inflated by circumstances of aggravation.
It seems to me, although I can find no authority directly in point and counsel were unable to refer me to any, that in so far as aggravated damages for trespass to the person are concerned the character or reputation of the plaintiff may have some relevance McGregor on Damages op cit, is silent on this point though it is stated (at par 211) that:
‘In certain torts, particularly those of defamation, false imprisonment and malicious prosecution, the measure of damages may be affected by the conduct, character and circumstances of both plaintiff and defendant.’
No doubt, however, it could be argued that aggravated damages may be the more aggravated in trespass if the person who was assaulted was a person of good standing and his humiliation in the community as a result of such actions therefore the greater. It is a somewhat delicate line to tread because it must not carry any implication that a person of bad reputation can be humiliated and insulted as the plaintiff was on this occasion. I think the appropriate approach is to remind oneself that the extent of aggravated damages will vary with the circumstances of the case and one of those circumstances may be the reputation of the plaintiff. The plaintiff here has suffered considerable and indeed excessive insult and humiliation for which he must be entitled to aggravated damages. It cannot be suggested that because of his reputation (and I bear in mind what his counsel reminds me that until these events he had no criminal convictions) he has no feelings to be insulted and no emotions of shame or humiliation to be assuaged. The plaintiff is entitled to aggravated damages.
In my view he is also entitled to exemplary damages. The damages are sometimes described as ‘punitive’ because they are there to punish or mark the disapproval of the Court’ and in this respect there is a thin line between the processes of the civil law and the criminal law. However the plaintiff has not invoked the criminal law and has sought from the civil law an award appropriate to deter and discipline. Brennan J in XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 at 471 contrasts exemplary damages and compensatory damages and says:
‘an award of exemplary damages is intended to punish the defendant for conduct showing a conscious and contumelious disregard for the plaintiff’s rights and to deter him from committing like conduct again.’
In my view, there could be no more apt description of the defendants’ conduct than that they acted in contumelious disregard for the plaintiff’s rights.”
The Chief Justice found that the acts did not result in the plaintiff suffering any economic loss nor any significant loss of amenities or enjoyment of life and viewed damages under this head as limited and awarded the sum of $2,000; for aggravated damages $15,000 and for exemplary damages $15,000.
These matters received comment in the Victorian Court of Appeal in the matter of Sadler and State of Victoria v Madigan [1998] VSCA 53 (1 October 1998). Mr Madigan was in a restaurant and was approached and subsequently arrested by a police officer. The Appeal Court was concerned about the directions to the jury arising out of the claim for false imprisonment on the question of damages. The court was concerned on issues of retrial and/or a reassessment of damages. In that case, it was found that Mr Madigan was entitled to an award of damages which reflected the jury’s finding that he was confined beyond a reasonable period not for wholly justified purposes, but at least in part because the police officer decided to increase his humiliation. Such a finding warrants the court in aggregating its estimate of compensation to be awarded by reference to the defendant’s conduct even though it might not qualify for an award of exemplary damages
The court said:
“In all the circumstances, it is appropriate in my view to award in this case a sum of $15,000 as compensation for the unlawful imprisonment, a sum which, I think, is sufficient to reflect the increased humiliation and stress inflicted upon the respondent as a consequence of the appellants’ action in unreasonably and without justification prolonging the imprisonment.”
And then:
“I do not believe, however, that it is appropriate to award a sum in respect of exemplary damages. Exemplary, or punitive, damages are awarded to punish and deter the wrongdoer, not to compensate the plaintiff. Such damages are awarded, therefore, ‘to punish a defendant for conduct demonstrating a conscious and contumelious disregard for the plaintiff’s rights and to deter him from committing like conduct again’ (XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 at 471, per Brennan, J). The award is therefore in the nature of a penalty imposed upon the defendant for conduct which can fairly be regarded as outrageous. It is for this reason that courts have urged restraint before making such an award, and have indicated that such damages should only be given if the sum awarded as compensation is, in itself, inadequate to punish the defendant for his conduct (per Ormiston, JA, Blackwell v AAA, [1997] 1 VR 182 at pp 206-8). Damages awarded for false imprisonment are at large and, if aggravated to properly reflect the increased humiliation suffered by the plaintiff as a consequence of the defendant’s conduct, are capable to that extent of containing an element which marks the court’s disapproval of the defendants’ conduct (Carson v John Fairfax &Sons Ltd (1993) 178 CLR 44 at 65-6; Myer Stores Ltd v Soo [1991] 2 VR 597, per Murphy, J at 603).”
A recent decision is the New South Wales Court of Appeal case of State of New South Wales v Riley [2003] NSWCA 208 delivered on 1 August 2003. Mr Riley created a disturbance by apparently discharging a firearm and was later arrested. An officer in charge of the arrest formed the view that Mr Riley was mentally disturbed. Mr Riley was placed in a police wagon, handcuffed and threw himself around whilst restrained. He was taken and admitted to hospital. Mr Riley subsequently sought damages against the State. The primary Judge held that the police had committed assault and false imprisonment and awarded compensatory, aggravated and exemplary damages, but reduced the same because of a finding of contributory negligence.
The total award under the various heads of damage including compensatory, aggravated and exemplary damages after an allowance of a 40% deduction in the compensatory award was a sum of $270,000. On appeal the award was reduced to $185,307. The reasoning of their Honours Sheller and Hodgson has application when considering the relief claimed in this action and, to a limited extent, the quantum of the award.
In Riley’s case, Hodgson J learnedly discussed the relevant principles that apply in this area and particularly the almost overlapping area between non-economic or compensatory damages on the one hand and aggravated damages on the other. His Honour said, commencing at paragraph 126:
“First, as stated by the joint judgment of the High Court in Lamb v. Cotogno (1987) 164 CLR 1 at 8:
‘Aggravated damages, in contrast to exemplary damages, are compensatory in nature, being awarded for injury to the plaintiff's feelings caused by insult, humiliation and the like.’
That immediately raises the question, what is it that distinguishes aggravated damages from ordinary compensatory damages? Ordinary compensatory damages are supposed to be an amount adequate to compensate the plaintiff for all consequences of the defendant’s wrongful conduct that are not too remote; so what room is there for additional damages, which although dependent on some aggravating feature of the defendant’s wrongful conduct, are still supposed to do no more than compensate for consequences of that conduct?
....
But aggravated damages are also awarded in cases where ordinary compensatory damages for injury to feelings are generally awarded, such as assault or defamation.
If, in addition to ordinary compensatory damages for injury to feelings, aggravated damages are to be awarded, then plainly it is important to avoid double counting; and the question arises, what can the additional aggravated damages be compensation for when injury to feelings have already been included in ordinary compensatory damages?
In my opinion, the only principled explanation must be along the following lines. It is extremely difficult to quantify damages for hurt feelings. In cases of hurt feelings caused by ordinary wrong-doing, of a kind consistent with ordinary human fallibility, the court must assess damages for hurt damages neutrally, and aim towards the centre of the wide range of damages that might conceivably be justified. However, in cases of hurt to feelings caused by wrong-doing that goes beyond ordinary human fallibility, serious misconduct by the defendant has given rise to a situation where it is difficult to quantify appropriate damages and thus where the court should be astute to avoid the risk of under-compensating the plaintiff, so the court is justified in aiming towards the upper limit of the wide range of damages which might conceivably be justified.
That approach is consistent with what Lord Reid said in Cassell & Co. Ltd. v. Broome [1972] AC 1027 at 1085:
‘Damages for any tort are or ought to be fixed at a sum which will compensate the plaintiff, so far as money can do it, for all the injury which he has suffered. Where the injury is material and has been ascertained it is generally possible to assess damages with some precision. But that is not so where he has been caused mental distress or when his reputation has been attacked - where, to use the traditional phrase, he has been held up to hatred, ridicule or contempt. Not only is it impossible to ascertain how far other people’s minds have been affected, it is almost impossible to equate the damage to a sum of money. Any one person trying to fix a sum as compensation will probably find in his mind a wide bracket within which any sum could be regarded by him as not unreasonable - and different people will come to different conclusions. So in the end there will probably be a wide gap between the sum which on an objective view could be regarded as the least and the sum which could be regarded as the most to which the plaintiff is entitled as compensation.
It has long been recognised that in determining what sum within that bracket should be awarded, a jury, or other tribunal, is entitled to have regard to the conduct of the defendant. He may have behaved in a high-handed, malicious, insulting or oppressive manner in committing the tort or he or his counsel may at the trial have aggravated the injury by what they there said. That would justify going to the top of the bracket and awarding as damages the largest sum that could fairly be regarded as compensation.’
This means that, if a court has awarded damages for hurt feelings as part of ordinary compensatory damages, the award of aggravated damages must only be for the difference justified by this approach, that is, an award of so much as is necessary to bring the damages up to the upper end of the available range. The approach also means, I think, that aggravated damages can be a matter of degree: the worse the defendant’s conduct, the further from the centre of the range and towards the upper limit of the range the court may be justified in going.
.....
In my opinion, as made clear in Gray v Motor Accident Commission (1988) 196 CLR 1 at [12] and [20], while “conscious wrong-doing in contumelious disregard of another’s rights” describes the greater part of the field in which exemplary damages may properly be awarded, it does not fully cover that field. Similarly, malice is not essential: Lamb v. Cotogno. Conduct may be high-handed, outrageous, and show contempt for the rights of others, even if it is not malicious or even conscious wrong-doing. However, ordinarily conduct attracting exemplary damages will be of this general nature, and the conduct must be such that an award of compensatory damages does not sufficiently express the court’s disapproval or (in cases where the defendant stood to gain more than the plaintiff lost) demonstrate that wrongful conduct should not be to the advantage of the wrong-doer.”
Aggravated Damages
Bearing these matters in mind, I propose to fix the sum of $15,000.
Exemplary damages
The comments in Gray’s case are most appropriate to describe the defendants’ actions.
It was an extreme and serious case of the defendants’ wrongdoing “in contumelious disregard of another’s rights”.
See also Adams v Kennedy (2000) 40 NSWLR 78: Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118.
In all the circumstances, I propose to fix the sum of $30,000.
Special Damages
I have had a summary of special damages tendered and I allow the damages of Dr Allen, Dr Jane Elliot and Dr David Kelly. There are two items in dispute namely referrals to Dr Carney and Dr Chan. I view the referrals as precautionary and flowing from the plaintiff’s pain allegations following the assault.
I allow special damages as claimed in the sum of $953.35.
Future medical expenses
The plaintiff will require psychiatric assistance for approximately the next 12 months and medication.
I allow the sum of $1,000.
The position is summarised:

Non-economic loss

                  Past $25,000.00

Interest on non-economic loss 3,000.00

                  Future 15,000.00

Aggravated damages 15,000.00

Exemplary damages 30,000.00

Special damages 953.35

Future medical expenses 1,000.00

                  TOTAL

$89,953.35

There will be judgment in favour of the second plaintiff against both defendants in the sum of $89,953.35.

· Past non-economic loss	$25,000
· Future non-economic loss	15,000

Non-economic loss
Past	$25,000.00
Interest on non-economic loss	3,000.00
Future	15,000.00
Aggravated damages	15,000.00
Exemplary damages	30,000.00
Special damages	953.35
Future medical expenses	1,000.00
TOTAL	$89,953.35

[2003] SADC 173

19 December 2003