Walker v Hamm (No 2)
[2009] VSC 290
•22 July 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 6503 of 1999
| DONALD WALKER & ANOR | Plaintiffs |
| v | |
| RUTH HAMM & ORS | Defendants |
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JUDGE: | Smith J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 May 2009 | |
DATE OF JUDGMENT: | 22 July 2009 | |
CASE MAY BE CITED AS: | Walker& Anor v Hamm & ors (No 2) | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 290 | |
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ASSAULT AND BATTERY – police officers – claims for aggravated damages by Estate of person assaulted and for aggravated and exemplary damages by person assaulted and person not present at assault.
INTEREST on damages – penalty rates applicable.
COSTS – offers of compromise and Calderbank letters – discontinuance of claim alleging conspiracy – failure to establish lost opportunity claim – Operation of Order 26.08(2)(a) – relevant considerations.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Meldrum QC with Mr P Clarke | Allan McMonnies |
| For the Second, Fourth, Fifth, Sixth, Seventh, Ninth and Twelfth Defendants | Mr J Langmead SC with Mr S Wotherspoon | John Cain, Victorian Government Solicitor |
| For the Thirteenth Defendant | Mr P Lawrie | James Syme, Victorian Government Solicitor |
TABLE OF CONTENTS
Introduction
The claims for aggravated damages
Aggravated damages – the positions of the plaintiffs and the first defendant.
Aggravated damages – the positions of the plaintiffs and the second defendant
The claims for exemplary damages
The positions of the plaintiffs and the first defendant
Approach to the claims for aggravated and exemplary damages
One sum?
The claims of Donald and Marcia Walker’s estate
The incident
The incident - The Plaintiffs’ submissions
The incident and reasons – Defendants’ Submissions
(a) The incident description
(b) Reasons and explanations for the conduct.
The incident and reasons – Plaintiff’s reply
(a) The incident
(b) Reasons and explanations
The incident – analysis
The incident – other possible causes
The Causes - Conclusion
Aggravated damages - the Law
Donald Walker’s claim for aggravated damages
The incident itself - submissions
Post incident issues raised; parties’ submissions
· Behaviour at the scene immediately after the incident up to and including at the police station
· Subsequent conduct prior to the trial
(a) The complaints
(b) The charges
· Conduct of the trial
Assessment of Donald Walker’s claim for aggravated damages
The estate claim for aggravated damages
Relevant issues identified by the plaintiffs
· The individuals and their circumstances
· The reasons for her presence
· The events at the scene after the incident
· Subsequent police and State conduct
· Long term consequences
Assessment of the estate claim for aggravated damages
The claims of Donald and Marcus Walker for exemplary damages - overview
Exemplary damages - the Law: common ground.
Exemplary damages – other legal issues
Possible limits on the quantum of exemplary damages
The claim for exemplary damages by Donald Walker
Issues raised by Donald Walker relevant to his claim for exemplary damages
· The incident
· Police behaviour at the scene of the incident
· Police behaviour at the police station
· Subsequent Police conduct prior to the trial
· Conduct of the trial
· No remorse
· Police culture
Additional issues raised by Carter in Donald Walker’s claim for exemplary damages.
Reasons for what occurred in the incident
Other issues
· Sesin’s conduct
· The possibility of punishment or disciplinary action directed to Carter
· Carter’s record
Assessment of exemplary damages claim of Donald Walker
The claims of Marcus Walker for aggravated and exemplary damages
The wrongful act – Carter’s submission
The wrongful act - Marcus Walker’s submission
The wrongful act argument – analysis
Contumelious disregard
The State’s submission
Preliminary issues - Conclusion
Assessment of claim of Marcus Walker for aggravated and exemplary damages
Aggravated damages - Relevant issues
· Direct consequence of the assaults on Donald and Marcia Walker
· Conduct of Carter and Sesin
· Subsequent conduct and events
· Conduct of officials other than Carter
· Conduct of the trial
Aggravated Damages Claim of Marcus Walker - Analysis
Exemplary damages – relevant issues
Interest on damages
Positions of parties
Section 60 Supreme Court Act 1986
Submissions for Carter and analysis
No penalty element; plaintiff’s delays
Carter submissions – the law
Analysis
Conclusion
Costs
Plaintiffs’ submission
· The first Calderbank offer
· The second Calderbank offer
Defendants’ submissions
(a) The conspiracy claim
(b) The lost opportunity claim
Costs – the conspiracy claim issue
Costs – the lost opportunity claims
Costs – analysis
The conspiracy claims
The lost opportunities claims
Costs – other relevant considerations
Conclusion
HIS HONOUR:
Introduction
I refer to my reasons in these matters published on 19 December 2008. As noted in those reasons, several issues remain to be determined, notably the claims for aggravated and exemplary damages and costs. Also outstanding is the issue of interest. As to the application of s 123 Police Regulation Act 1998, it is my understanding that its application is not a live issue between the parties.[1]
[1]Because of the admission of vicarious liability by the latter.
Written submissions were received from the parties in March 2009. Further submissions and evidence relating to the interest issue were received on 18 and 27 May 2009.
The claims for aggravated damages
Aggravated damages – the positions of the plaintiffs and the first defendant.
The plaintiffs seek aggravated damages from the defendants for themselves and for the estate of Marcia Walker. Their counsel submitted that Donald Walker and Marcus Walker should each be awarded aggravated damages in the sum of between $150,000 and $200,000. Counsel also submitted that the estate of Marcia Walker should be awarded aggravated damages of between $50,000 and $100,000.
The second defendant, Carter, concedes that, on the facts that have been found, aggravated damages are payable to Donald Walker. He makes the point that no direct evidence was given by Donald Walker as to the impact on his feelings resulting from the way in which the wrongs were inflicted upon him. Carter concedes, however, that there were aggravating factors in the incident. He refers to the fact that the assaults and batteries occurred in Donald Walker’s home and in the presence of his mother and that they occurred at the hands of public officials who are sworn to uphold the law. He accepts that they caused Donald Walker to be shocked and fearful for his safety. He submits that in Donald Walker’s case, an award of aggravated damages of $50,000 would be appropriate. He denies any liability for aggravated damages in relation to Marcus Walker.
As to the claim for aggravated damages for the estate, Carter relies upon the amendments to the statement of claim in the course of the trial deleting paragraph 9 which contained the claim for both aggravated and exemplary damages for the estate. At the time counsel for the plaintiffs stated that those claims could not be made because of the provisions of the Administration and Probate Act. Later counsel for the plaintiffs partially resiled from this position and revived the claim for aggravated damages by the estate. The estate’s pleadings were not formally re‑amended but counsel for the defendants raised no objection at the time to the claim proceeding in the absence of such amendment and no prejudice can be identified. I proceed on the basis that the claim of the estate is alive but opposed by the first defendant.
Aggravated damages – the positions of the plaintiffs and the second defendant
The plaintiffs rely upon the admission in paragraph 1 of the defence of the State of Victoria that the 2nd to 13th defendants were at all material times acting as its servants and agents. They submit that as a result, all damages against Carter are recoverable against the State of Victoria. In its defence, the second defendant went on to plead that it denied liability for “exemplary and/or punitive damages”. Its present position is that it has no liability for the aggravated damages sought. I proceed on that basis.
The plaintiffs submit that any damages awarded to them and the estate for aggravated damages (and to them for exemplary damages) should be awarded as to 50% as against Carter and 50% as against the State of Victoria.
As counsel for the State of Victoria has submitted, the grounds for the apportionment sought are not apparent. Counsel submitted that the State of Victoria had no direct liability for damages. Its liability arose vicariously by virtue of the admission of liability under s 23(1)(b) of the Crown Proceedings Act. As counsel also pointed out, although there have been adverse findings in respect of other police members in respect of the events, the plaintiffs did not plead that the State of Victoria bore any vicarious liability for the acts of the 2nd to 13th defendants other than the vicarious liability arising from the acts of the second defendant Carter (and Sesin) in the incident. There being no allegation in the pleadings in their final state alleging any tortious act of any other police member or branch, with the exception of Sesin[2], the State cannot be liable except for the actions of Carter and Sesin.
[2]In para.2 of the amended statement of claim in Action 6503 of 1999.
Any orders that are made should reflect the situation that 100% of the damages awarded against Carter should be entered against him and also entered against the State of Victoria on the basis of its vicarious liability for his actions.
The claims for exemplary damages
The positions of the plaintiffs and the first defendant
The plaintiffs seek exemplary damages for themselves but not for the estate of Marcia Walker. Counsel submitted that Donald Walker and Marcus Walker should each be awarded exemplary damages of between $300,000 and $500,000.
For Carter, it was submitted that no award for exemplary damages should be made against Carter in respect of Donald Walker or Marcus Walker.
The second defendant does not concede that any liability arose in respect of the claims for exemplary damages. It advanced submissions relating to particular details of the claims of the plaintiffs and the estate. They are discussed below in dealing with the claims.
Approach to the claims for aggravated and exemplary damages
One sum?
Counsel for Carter has submitted that the claims for aggravated and exemplary damages arise out of the same circumstances and that it would be appropriate to make one award, not two, if liability for those damages is found against Carter. In advancing this argument, counsel relied upon New South Wales v Ibbett[3]. In that case, the High Court cited with approval the following passage from the judgment of Speigelman CJ in the Court of Appeal decision in that matter
“In this regard it is relevant to note that the matters to which I have referred as justifying an award of exemplary damages are also pertinent, as is often the case, to an award of aggravated damages. The difference is that in the case of aggravated damages the assessment is made from the point of view of the plaintiff and in the case of exemplary damages the focus is on the conduct of the defendant. Nevertheless, it is necessary, as I have noted above to determine both heads of compensatory damages before deciding whether or not the quantum is such that a further award is necessary to serve the objectives of punishment or deterrence or, if it be a separate purpose, condemnation”. [4]
His Honour went on to state
“In cases where the same circumstances increase the hurt to the plaintiff and also make it desirable for a Court to mark its disapprobation of that conduct, the court may choose to award one sum which represents both heads of [aggravated and exemplary] damages and no element more than once”.
[5]
[3](2006) 229 CLR 638 at 648 [35] and [34].
[4]Above at [34].
[5]At [35], citing Bray CJ in Johnston v Stewart [1968] SASR 142, 144-5. It should also be noted that the High Court appeared to approve of a variation adopted by Basten JA of a global award of exemplary damages in respect of the causes of action in trespass and assault but noted that nothing in fact turned on that.
The plaintiffs reject the submission that one award only should be made and have argued that it is appropriate for the Court to separate the issues and make separate awards of damages for aggravated and exemplary damages.
In resolving the debate, it is necessary to give separate consideration to the respective claims for aggravated and exemplary damages in any event. In doing so, it is necessary to commence by considering the findings already made and the particular matters raised by the parties about features of the incident itself which are relevant to each of the claims for aggravated and exemplary damages. They are of particular relevance to the claims of Donald Walker for aggravated and exemplary damages and the estate of Marcia Walker for aggravated damages.
I will consider first the issues raised in the individual claims for aggravated damages of Donald Walker, and the estate of Marcia Walker, in that order. I will then consider the claim of Donald Walker for exemplary damages. Finally, I will consider the claims of Marcus Walker for aggravated and exemplary damages. They raise significantly different issues.
The claims of Donald and Marcia Walker’s estate
The incident
I refer to the findings as to what occurred contained particularly in paras. 11.4, 12.5(c) to 12.5(g) of the reasons already given and the findings therein as to the reasons for the conduct in the incident of Carter and Sesin in paragraph 13.2.[6]
[6]See also analysis of evidence of Carter and Sesin in section 12.4
The parties attempted to highlight certain aspects of the evidence about the incident.
The incident - The Plaintiffs’ submissions
As to the impact on Donald Walker, the plaintiffs rely upon the findings as to what occurred to argue that Carter, in concert with Sesin, unlawfully and viciously assaulted Donald Walker in his home and that this caused serious physical and psychological damage. Counsel submitted that at the time Donald Walker was assaulted he was attempting to assist his elderly invalided mother, who had among other things vision problems, after Carter had shone a torch in her eyes. Counsel argued that the assault of Donald Walker was an act of aggression and was cowardly in that it continued after he was handcuffed. Counsel further submitted that in his presence, Marcia Walker was injured by an assault by Carter or indirectly as a result of the unlawful assault by Carter in concert on him. It was also put that she suffered significant physical and emotional injuries when she made her legitimate attempt to prevent Carter assaulting Donald Walker. Counsel also argued that Carter and Sesin were young and fit and were sworn to keep the peace and enforce the law.
As to the impact of the incident on Marcia Walker, counsel for the plaintiffs submitted that she was, at the time, 67 years of age, on a stick and had restricted mobility. Counsel submitted that Carter shone the torch into her eyes and that this was an act of aggression.[7] Counsel also submitted that she witnessed Donald Walker being unlawfully and viciously assaulted when he attempted to come to her aid. Counsel repeated the submission that the assault was cowardly. It was put that she bravely and lawfully attempted to stop the attack on her son but was injured either as a consequence of an unlawful assault by Carter on her when she made that attempt or because Carter resumed his unlawful assault in concert upon Donald Walker in the course of which she was injured. Counsel argued that what occurred was either a cowardly assault by a fit young police officer on her or a consequence of a vicious unlawful assault by two policeman on Donald Walker. The officers were sworn to keep the peace and enforce the law. Counsel submitted that she was distressed not only by her own injuries and their consequences but also by the impact of the injuries upon Donald and Marcus Walker.
[7]Counsel alleged that she tried to stop Carter kicking Donald. This refers to a statement she was recorded as making in the Pluim tape. That evidence was not admitted to prove the truth of the facts she asserted. I therefore, do not take it into account.
As to the whole incident, Counsel for the plaintiff also drew attention to the finding that Sesin had no control over Carter[8] and Carter was out of control from the start.[9]
[8]Paragraph 204.
[9]Reasons paragraph 199.
The incident and reasons – Defendants’ Submissions
Counsel for Carter made detailed submissions concerning the evidence about the incident. The State of Victoria, however, did not do so. It dealt with the evidence briefly. Save where its submissions raised issues similar to those raised for Carter, it has not joined in Carter’s submissions as to the incident itself. Where it has made specific submissions they are noted below.
(a) The incident description
Counsel for Carter(4) first described the incident as being confined to “the torch incident” which was described as
“…a single episode involving an assault and battery[10] by Carter and Sesin that occurred in five or so minutes[11] between Sesin applying a headlock with his left arm to Donald Walker’s neck and Donald Walker’s subsequent handcuffing. In the five minute period Walker was either on his feet or on the ground. Whilst he was on his feet he was in Sesin’s headlock. During this phase Carter struck Donald Walker on the head with his baton. He also struck Donald Walker twice with his baton on the left side of his upper body. He did so as hard as he could. One of Carter’s baton strikes fractured one of Donald Walker’s ribs. Sesin struck Donald Walker using his baton a number of times around his legs.
Donald Walker was on the ground early on in the exchange. Sesin’s headlock ceased to be applied. Carter and Sesin gained a position of control. Whilst on the ground, Donald Walker received from Carter a number of further baton blows. Both Sesin and Carter applied their knees to his back and Carter dropped on Walker’s back with his knee which was a probable cause of the second rib fracture. Sesin held Walker’s hair. Donald Walker received a number of knocks to his head and a number of hits to various parts of his body. Carter and Sesin handcuffed Donald Walker just before, and as, other police arrived. Carter stamped on Donald Walker’s right elbow after he was handcuffed.”
Counsel for Carter also noted, in referring to the “torch incident”, that no claims were advanced by Donald Walker in relation to the matters preceding the torch light shining in the eyes of his mother. They included the manner of entry, the property damage to Donald Walker’s fixtures and chattels such as the front door and the passageway wall and the broken glass on the picture, and the force with which the constables came through the door. Counsel also noted that no claim was advanced concerning the shirt tearing incident.
[11] It was noted in the submission that the finding was less than five minutes.
As to the finding that Donald Walker’s elbow was stamped on after the handcuffing it is put that there was no finding that this act was intentional rather than inadvertent and there was no finding of any other assault after the handcuffing.
As to the extent of the violence, counsel for Carter sought to highlight the fact that Donald Walker’s evidence was not accepted that he was struck with batons while he was handcuffed or that Carter struck or punched Marcia Walker. It is put that the only violence that occurred after the handcuffs were applied was the stamp to the elbow.
(b) Reasons and explanations for the conduct.
A number of matters were raised.
· Lack of malice – fear and anxiety
Counsel for Carter submitted that Donald Walker’s case was that Carter and Sesin acted with "excessive zeal". Reliance was placed on alleged findings that Carter had "totally mishandled the situation" and had approached the use of force "without any thought or precision". Counsel referred to the finding that Carter could have restrained Donald Walker while he was standing in the headlock in accordance with his training, with a full Nelson without resorting to his baton. Counsel argued that this supported a conclusion that he used "reckless force" but that it should not be concluded that he was motivated by actual malice or ill will towards Donald Walker. Counsel for the State of Victoria supported this submission, arguing that the primary explanation for Carter’s conduct at the scene was "fear and anxiousness" rather than "some malicious state of mind". In support of this proposition, counsel referred to the finding that Carter and Sesin were young and inexperienced and, from the outset, were scared and highly anxious in dealing with the situation.
· Lack of predetermination and pressure of the event
Counsel for Carter also submitted that the attack on the Walkers was not “premeditated or predetermined”. They submitted that it was “poor judgment that led to an escalation of the force used and the prolongation of the event.”In assessing the conduct of the police, Carter’s counsel emphasised that regard should be had to the statements in the authorities concerning the reality of police decision making occurring without the opportunity for "mature or deliberate reflection"[12]and with the "pressure of events and the agony of the moment"[13]. Counsel for the State of Victoria joined in these submissions arguing that the events evolved over a short period of time with little opportunity for contemplation and that whatever Carter’s failings, there was an absence of premeditation. Counsel for both defendants submitted that the tortious acts took place in the sort of atmosphere described by Connor, J. in Macintosh v . Webster[14] - described as circumstances of "excitement, turmoil and panic".
[12]State of Victoria v Horvath (2002) 6 VR 226, 343 [42].
[13]Woodley v Boyd [2001] NSW C. A. 35, [38]
[14](1980) 43 F. LR 112, 123
· Fear
Counsel for Carter referred to Carter’s evidence that domestic violence situations were the worst things a policeman had to go to and that Carter was very scared from the outset. Counsel submitted that this evidence was explicitly accepted. I note that Counsel for the State of Victoria adverted to this issue in slightly different terms stating that the court had accepted the proposition that a scene of domestic violence or potential domestic violence is a situation of high risk for police members called to attend. Counsel for Carter sought to rely upon the finding that Donald Walker was angry at the police and Ruth Ham, and would not have attempted to hide his anger. Relying on these matters, counsel submitted that they may help to explain Carter’s attempt to maintain "complete physical control of the situation".
· Carter’s beliefs
Counsel for Carter submitted that Carter’s failure "to perceive and understand that the violence came overwhelmingly from him”, could be explained on the basis of his inexperience and bad decision making. It was put that he had a subjective belief that very substantial force was necessary to control the situation.
The incident and reasons – Plaintiff’s reply
The plaintiff responded to the foregoing submissions of the defendants directed to the incident itself and the reasons and explanations for what occurred.
(a) The incident
Counsel for the plaintiffs argued that the submission for Carter was inconsistent with the findings and, that, in particular, Carter’s account of the incident, commencing with the reason for attending the premises was rejected as lies. Counsel referred to the findings that Carter had lied in evidence given by him that
· they were called to Essex Road because a woman was being held against her will,
· before he kicked the door in he heard a scream and heard sounds of violence inside,
· when they entered, Donald Walker was restraining Ruth Ham, and
· his violence was justified by the behaviour of Donald Walker whereas it was found that he had in fact, cooperated with and had not threatened them and had followed their instructions prior to the torch incident.
Counsel also referred to the evidence of Donald Walker that was accepted about the shirt tearing incident, something about which Carter and Sesin claimed to be unable to give evidence. Referring to the central incident, Counsel for the plaintiffs emphasised the findings that at the time that Sesin placed a headlock on Donald Walker it was unlawful; Donald Walker was trying to get to his mother to assist her in response to Carter’s dangerous assault on her.
Counsel for the plaintiffs also argued that Carter had through his submissions attempted to downplay the gravity and seriousness of his conduct.In relation to the proposition advanced that Carter did not premeditate or plan the assault, Counsel for the plaintiffs submitted that this was of no relevance because any panic or turmoil was the result of the illegal actions of Carter and Sesin acting in concert. There was no provocation or excuse for what he did. As to the reliance upon the anger of Donald Walker, Counsel argued that it was responsive to Carter and Sesin’s illegal actions in concert as Carter raised tensions and could not excuse Carter’s conduct. As to the proposition that Carter had been no more than reckless, counsel submitted that in light of the findings, the force used was not merely reckless. It was also put that the force used was not caused by inexperience or lack of thought. Counsel also submitted that what occurred was not a mere case of poor judgment; for none of the force used by Carter and Sesin in concert was legal. Counsel again submitted that after the headlock was placed, Carter and Sesin viciously assaulted Donald Walker in a cowardly fashion.
As to the absence of a finding as to whether the stamping on the elbow was inadvertent or intentional, counsel for the plaintiffs submitted that it was never Carter’s case that he and Sesin handcuffed Donald Walker or that they had any contact with him after he was handcuffed. It is put that to now assert that the standing on the elbow was inadvertent and not cowardly is “special pleading”.
Interesting as this latter debate may be, no express finding was made about whether the stamping was inadvertent. It should, however, come as no surprise to the parties that I was, and am, satisfied to the requisite standard that the stamping was deliberate and by Carter.
As to the attempt to rely on the lack of claims in respect of the other conduct of Carter, counsel for the plaintiffs submitted that it was not relevant whether a claim was made or not for trespass to land or property damage but that what mattered were the findings made in respect of those matters - all adverse to Carter. In response to the reference to the finding that the assault and battery lasted less than five minutes, counsel submitted that it was "unrelenting, vicious, unprovoked and caused serious injury".
(b) Reasons and explanations
In response to this aspect of the defendants’ submissions, counsel for the plaintiffs submitted that the case was not one that concerned errors of judgment or poor judgment. Counsel submitted that none of the force used by Carter and Sesin in concert was legal. Carter and Sesin were the sole authors of the situation and cannot plead in mitigation that they were acting under the pressure of events or the agony of the moment. Counsel submitted that any excitement, turmoil and panic in the minutes that followed the shining of the torch in the face of Marcia Walker was entirely a consequence of the illegal and violent conduct of Carter and Sesin acting in concert.
Counsel for the plaintiffs also submitted that Carter’s need to attempt to maintain "complete physical control of the situation " was explicable on the basis that he had initiated a vicious physical assault and that he would be exposed to lawful retaliation if he did not maintain complete control. Counsel for the plaintiffs also submitted that the argument should be rejected that Carter had a subjective belief that it was necessary to apply very substantial force to control the situation; for he was the principal author of the situation and the violence.
In concluding their response on this aspect, counsel for the plaintiffs submitted that because Carter and Sesin were the sole authors of the situation, they could not seek refuge in an inability to make mature or deliberate reflection and could not plead mitigation on the basis that they were acting under the pressure of events and the agony of the moment.
The incident – analysis
The submissions and responses of counsel for the plaintiffs should be accepted. I make the following additional comments.
The submissions of counsel for Carter attempted to play down the significance of Carter’s conduct. In a number of instances, the submissions were inconsistent with the findings and at times selective, incomplete, and, as a result, inaccurate and unhelpful. This continued a feature of the submissions made on liability and damages. In the present context I refer, for example, to findings relied upon by counsel for the first defendant which are quoted and referred to above.
·“Donald Walker’s case was that Carter and Sesin acted with "excessive zeal". Here, counsel drew on an expression I had used not one that had been used by counsel for the plaintiffs. I used the quoted expression in the course of discussing why it might be that Carter and Sesin would not wish to acknowledge either the existence of Donald Walker’s shirt or its tearing. In referring to "excessive zeal" I was being kind to Carter and Sesin. It was not a description advanced by the plaintiffs. Generally the discussion had been about excessive force. The reference should be compared with the passage from the reasons, footnoted in the written submission of counsel for Carter on this issue which was as follows:
"I accept they were very scared from the outset and that there was gross, heavy violence. But the violence came from Carter, in particular and, for Sesin, that would have been frightening. For Carter, it is also possible that he found his own conduct frightening. The violence did not come from Donald Walker."
·The court concluded that they ‘totally mishandled the situation’. That comment needs to be read in its context[15]
[15]Paragraph [315].
"In light of the above findings, there was no breach of the peace by Donald Walker. There was no proper basis to exercise the power to arrest him. Carter and Sesin did not act in self defence of Sesin. In any event, they used excessive force against Donald Walker. There was no lawful justification for the blows to Donald Walker struck by Carter and Sesin. Carter and Sesin totally mishandled the situation and, once Walker was held on the ground, he posed no threat to the police officers or anybody else. He was, at all relevant times, simply wanting to go to his mother’s aid. Carter acknowledged that and was aware of that fact. I am satisfied Sesin would also have been aware of that fact.
·“The Court concluded…’that Carter approached the task of his use of force ‘without any thought or precision’". The quoted phrase appears in the following passage in the reasons in a discussion of Carter’s inconsistent descriptions of "his first blows", not of the whole incident.
"1244 In talking to Pluim on the night, his description was simple and direct:
"and that’s how he got the welt marks on his back, I just started
belting into him with the bat and telling him to get down"
1245 In his formal statement, he stated that he struck him to the side of the stomach four times and twice on the upper arms. He said nothing about aiming at the arms and missing. In neither statement was there any suggestion that he approached the task with any thought or precision."
· The submission that “reckless force” was used. This submission relies on the findings made that “Carter could have applied… a full Nelson to Donald Walker while he was on his feet and in Sesin’s headlock without resorting to his baton”. The findings were made in the following passage of the reasons
As to the central event, Carter and Sesin knew that Donald Walker was moving towards his mother to help and that there was no justification for Sesin’s headlock. But Sesin had restrained him in the headlock and Carter could have applied his training and grabbed Donald Walker’s flailing left-hand and turned it into a full Nelson as they had apparently been taught to do. Instead, he escalated the level of violence by hitting Donald Walker with his baton a number of times as hard as he could, including to the head, struck Sesin twice and, later, dropped with his knee into Donald Walker’s back fracturing a rib. Carter was in a violent state. While in that state, he dealt violently with Marcia Walker.
As noted above, the submission for Carter went on to argue that the above findings supported the conclusion that Carter used reckless force against Donald Walker and that it should not be concluded that Carter was motivated by actual malice or ill will towards Donald Walker. I disagree. It is difficult to avoid the conclusion from the other findings made that there was actual malice and ill will. There was also an underlying contempt for Donald and Marcia Walker. Carter had ample opportunities to consider each blow as it was struck and the necessity for it; for nothing Donald Walker did posed any threat to him or, once the headlock ceased, posed any threat to Sesin.
As to the attempt to categorise the actions as reckless, counsel has not elaborated on the sense in which they used that term. Presumably counsel intended to imply something more than mere negligence or carelessness. Perhaps counsel meant heedless of their duties as police officers. Applying the term in the relevant criminal context – “recklessly causing serious injury” – reference may be made to the directions that are given to juries in considering the mental element of such a charge.
“The third element relates to the accused’s state of mind. The prosecution must prove, beyond reasonable doubt, that at the time the accused did the acts that you find caused the complainant’s injury, she/he was aware that those acts would probably result in the complainant being seriously injured. That is, NOA knew that NOC was likely to be seriously injured by his/her actions.
It is not sufficient for NOA to have known that it was possible that NOC would be seriously injured. She/he must have known that that consequence was probable.
It is also not sufficient for NOA to have known that it was probable that NOC would be injured by his/her actions. For this element to be met, NOA must have known that it was likely that his/her acts would seriously injure NOC.
In determining this part of the test, you must be satisfied that NOA him/herself actually knew of the probability of NOC’s injury. It is not enough that you, or a reasonable person, would have recognised that likelihood in the circumstances. “[16]
Whatever precise meaning was intended by counsel for Carter, to categorise Carter’s acts as reckless rather than acts of malice or ill will does not, in the end, assist Carter to any great degree.
I am prepared to accept that there was no pre-planning in the initial blows by Carter, but I am satisfied that those blows were struck deliberately, with maximum force and with an intent to cause the maximum pain. Carter acknowledged that he hit Donald Walker with maximum force. There is no doubt in my mind that he knew that it was likely that his acts would seriously injure Donald Walker.After the interruption caused by Marcia Walker’s intervention, he returned to Donald Walker and did so, on his own description, with the intent of "belting him" and he proceeded to do so. These acts may be fairly described as pre-planned. I turn to other submissions.
[16]JCV Charge Manual.
To meet the submission by Counsel for the Plaintiffs that Carter’s conduct was cowardly and vicious and continued after Donald Walker was handcuffed, Carter’s counsel submitted that the court had not described Carter’s conduct in that way.
A review of the transcript reveals that that description was used in the course of cross-examination of Donald Walker and in submissions by Counsel for the plaintiffs in referring to the entire episode from the use of batons onwards.
Counsel for Carter is correct. I have not expressed a view on that submission. I should do so. Having regard to the use of the two batons, very substantial weapons, by two police officers against an unarmed person who had not, and was not, threatening them with any unlawful action and could not protect himself from the blows, particularly when held in the headlock by Sesin, what Carter and Sesin did may properly be described as cowardly and as vicious. The same description properly attaches to beating him after the headlock when he was not threatening them, the act of falling on a knee on his back while he was face down on the floor and stamping on the elbow when handcuffs were in place.
I refer to the defence submission concerning the alleged shortness of the period involved in the incident following the torch incident. Assuming a timeframe of about five minutes, that may be a short period for a conversation. But it is a long time if you are being beaten as Donald Walker was. It was also ample time for Carter to consider what he had done, was doing, and was proposing to do.
As to the argument that the explanation for Carter’s conduct at the scene was "fear and anxiousness", it may partly explain what occurred at the outset, but it does not excuse what occurred then or later. A police officer’s job is a very difficult and demanding one. A policeman is expected, and required, to cope with and manage situations appropriately notwithstanding any fear and anxiety caused. The situation with which they were faced in the present case did not provide any special reasons for fear and anxiety such as a person armed with a gun or a knife. It was they who were armed and they outnumbered Donald Walker.
The incident – other possible causes
In my earlier reasons I invited the parties to make submissions addressing[17] the question of the reasons why Carter and Sesin acted as I found they did. Reference has already been made to a number of those submissions. Other matters were raised by the plaintiff. They are inconclusive. They are considered in Appendix Q to this judgment.
[17]See [328] – [329]; They included further submissions if so advised as to any further findings that should be made about the central event relevant to the claim for damages including the reasons why Carter and Sesin acted as they did, and the relevance of any of the conduct immediately following and subsequent to the central incident of Carter and Sesin and other police, other Government bodies and the State of Victoria and the relevance if any of Carter’s evidence in re-examination that if the same situation arose there was “absolutely nothing” he would do differently.
The Causes - Conclusion
It is possible to suggest a variety of potential factors which could explain what occurred. A complex matrix could be developed. But it should be remembered that Carter, who was responsible for what occurred is, and was, a relatively uncomplicated human being.
In the end, the clearest and most accurate insight into Carter’s actions was given by him in the statements he made to Pluim very shortly after the incident. Referring to what he did prior to Mrs Walker’s interruption, he said
".. I just started belting into him with the bat and telling him to get down".
After the interruption, he said
"I just - and that’s when I flew back over and started belting the bloke with the baton again. What could we do?"
Aggravated damages - the Law
The principles to be applied are well-established and are largely common ground between the parties. Aggravated damages are awarded as compensation where the harm done to the plaintiff has been aggravated by the way in which that harm was done[18]. It is compensation awarded
"for injury to the plaintiff’s feelings caused by insult, humiliation and the like".[19]
[18]Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 149; Lamb v Cotogno (1987) 164 CLR 1 at 8; Vignoli v Sydney Harbour Casino [1999] NSWSC 1113.
[19]Lamb v Cotogno (1987) 164 CLR 1 at 8.
For a plaintiff to succeed he or she must prove that injury was done to his or her feelings at the defendant’s hands[20] - whether by "insult, humiliation or the like". In New South Wales v Ibbett (2006) 81 ALJR 427[21] the injury to the feeling was described as the affront to the persons present who were family members at the time the plaintiff’s exclusive possession of the premises was disturbed by the defendants. In that case the High Court took the view that the affront to the family persons present
[20]Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 151.
[21]At [31] and [32].
“may aggravate the infringement of the right of the plaintiff to enjoy exclusive and quiet possession”.[22]
The Court went on to hold
“the decision of the majority in the Court of Appeal to uphold the award of aggravated damages partly by reference to the affront to Mrs Ibbett of the treatment of her son as well as herself was consistent with basic principle. The same is true, subject to what now follows[23], of the award of exemplary damage for the trespass“.
The more insulting, humiliating or affronting the conduct of the defendant, the greater the indignity that the plaintiff is likely to suffer and the greater the injury to the plaintiff’s feelings is likely to be and the greater the award of damages should be.[24]
[22]Citing Brame v Clark 62 SE 418 at 419 (1908); May v Western Union Telegraph Co 72 SE 1059 at 1062 (1911); Douglas v Humble Oil and Refining Co 445P (2d) (1968); re Statement of Torts, 2d Vol 1, Appendix (1966), para.162.
[23]The issue of double punishment.
[24]Uren v John Fairfax (1966) 177 CLR 178, 151.
In assessing aggravated damages, it may be relevant to consider evidence of events up to and including the trial[25]. Counsel for Carter accepted that the Court can have regard to the defendant’s attitude “down to the time of the trial”[26]. The conduct of the defence which was not bona fide or not justifiable in the circumstances known by the defendant is something that may also be relevant[27].
[25]McFadzean v CFMEU 2007 VSCA 289 at [140]; De Reus v Gray (2003) 9VR 432, at [28]; McFadzean v CFMEU (2004) VSC 289 [102 – 105], Giller v Procopets (2008) VSCA 236 at [200].
[26]Citing De Reus v Gray, above, at 458[28].
[27]McFadzean v CFMEU 2004 VSCA 289, [102], citing Triggle v Pheeney (1951) 82 CLR 497, 514; Spautz v Butterworth (1996) 41 NSW LR 1, 14-18. See also Vignoli v Sydney Harbour Casino [1999] NSWSC 1113 and cf defamation cases such as Davis v Nationwide News Pty Ltd [2008] NSWSC 693, 32, 34 and 36, Lewincamp v ACP Magazines Ltd [2008] ACTSC 69.
The State also conceded that the conduct of the trial by the defendants can be taken into account in the award on aggravated damages. Counsel submitted, however, that it is not every defendant to an action who must face the prospect of aggravated damages being increased. It was put that the plaintiff must show that the defendant’s conduct of the case lacked bona fides, or was improper or unjustifiable[28]. It may be said to be logical, however, that if the original tort is done in such a way that it causes injury to the plaintiff’s feelings in the form of insult, humiliation and like emotions, subsequent conduct by the tortfeasor, including the conduct of the defence, will be relevant where it prolongs or revives those feelings – or is a factor in making them worse.
[28]Citing Coyne v Citizen Finance Ltd (1991) 172 CLR 211, 237.
Donald Walker’s claim for aggravated damages
The incident itself - submissions
As to the material aspects of the incident itself, I refer to the material above where the parties submissions are discussed.
Post incident issues raised; parties’ submissions
In addition to the points made about the incident itself, counsel for the plaintiffs advanced arguments based on the conduct of Carter and Sesin and other police officers and personnel of other organisations immediately after the incident and up to and including at the trial of relevance to Donald Walker’s claim.
Carter argued, however, that applying the principles identified in Enerver v The King (1906) 3 CLR 969, there was no evidence that Carter was acting in concert with any of the other officers in relation to the events that followed the incident.
The post-incident conduct falls into different categories.
·Behaviour at the scene immediately after the incident up to and including at the police station
Counsel for the plaintiffs relied upon the findings that the police at Essex Road ignored Donald Walker’s injuries. They also relied upon the fact that, on the findings made, Donald Walker was falsely arrested and conveyed to Camberwell police station in a paddy wagon.
It is put that at the police station, he continued to be naked from the waist up on a cold night and no attention was given to his injuries. He was also forced to urinate in humiliating circumstances.
Carter takes the position that the matters raised on behalf of Donald Walker do not relate to his conduct and, therefore, do not attract aggravated damages. He was instructed to go to hospital with a senior officer shortly after the central events and did so. He was not involved in the removal of Donald Walker from the scene of the incident to the police station nor was he involved in his interviews or his release. His counsel noted that while he did not take direct steps to address the welt marks on Donald Walker’s back which he had observed, he did tell a sergeant about them. In essence it is put that he did not participate in or have control over the major events relied upon. This included the treatment of Donald Walker at the Camberwell police station.
In response, counsel for the plaintiff submitted that Carter, and Sesin, were present when the ambulance arrived and had it in their power to request that Donald Walker be attended to by the ambulance officers. They did not do this. As to what occurred at the Camberwell Police Station, Carter and Sesin were, after discharge from the hospital, at the police station where Donald Walker was held in custody. Counsel accepted that, on the evidence, it appears that Carter and Sesin had no direct interaction with him there. His treatment at the police station was in the hands of other people who were called to give evidence. The treatment, counsel submitted, was callous and improper and followed and reflected the callous disregard in which Carter and Sesin held Donald Walker.
Referring to the argument which referred to the Enever principles, counsel for the plaintiffs’ submitted that Carter should be held responsible for aggravated damages referable to the events after his vicious and illegal assault because they were consequences of those assaults and of his failure to indicate that it was not appropriate to take Donald Walker into custody and his failure to organise any assistance for Donald Walker. Counsel submitted that, accepting that Carter and Sesin were only very junior officers at this time, these events would not have occurred if they had properly treated the Walkers immediately after the incident instead of lying about what occurred and continuing to humiliate them and treat them with contempt. They set the tone. They could have changed it. It is put, therefore, that it is relevant to consider the abovementioned treatment as the continuation of the injury to Donald Walker’s feelings by Carter, with Sesin, for the purpose of the assessment of aggravated damages.
In my view the lack of direct involvement in the matters complained of lessens the gravity of Carter’s culpability. But it may fairly be said that by his failure to inform Pluim and the other police about what in fact happened, Carter allowed the humiliation and affront identified by counsel for the plaintiffs to continue up until Donald Walker’s release from the Camberwell Police Station. In addition, before Donald Walker’s removal from Essex Road, Carter’s failure to do anything about having Donald Walker physically examined or being appropriately clothed before he left resulted in further affront and humiliation for Donald Walker. I do not accept Carter’s evidence that he told a sergeant about the welt marks.
·Subsequent conduct prior to the trial
Counsel for the plaintiffs raised two matters.
(a) The complaints
Counsel referred to the formal complaints Donald Walker made about the falsity of the evidence against him, and the criminal charges, which were ignored by those State employees to whom he complained and who failed to properly investigate the police case and the material supplied by the Walker brothers. It is put that this fuelled his anger understandably.
(b) The charges
Counsel submitted that Donald Walker was falsely charged with serious offences and prosecuted for three days.
Counsel for Carter submitted again that Carter did not participate in or have control over the major events. This included the subsequent charging with criminal proceedings and the handling of his complaints by the Ethical Standards Department and the Ombudsman. It was put that these issues are more pertinent to the second defendant.[29]
[29]Carter also queried whether civil litigation is an appropriate forum to consider such issues but I understand that to be advanced as a comment not an argument.
In response, counsel for the plaintiffs submitted that while the Ombudsman was protected by s 29 of the Ombudsman Act 1973 there was no similar protection for the Ethical Standards Department. Counsel submitted that the decision not to accept the submissions of the Walkers as to what occurred was a consequence of Carter’s false statements, his actions and those of Sesin. Counsel again submitted that Carter had relevant participation and control of all events that followed Donald Walker being removed from Essex Road because of his failure to set matters right. The fact that he did not participate in those events did not lessen his responsibility for them.
Counsel for the State of Victoria argued that the plaintiffs’ submission that the Ombudsman and the Ethical Standards Division failed to properly investigate the matter, if true, has no relevance. Counsel for the plaintiffs advanced submissions in response but it is sufficient for me to state that, in my view, it does not ultimately advance the determination of the issues to explore the conduct of the Ombudsman and the ESD when that conduct has not been explored in this case. Further, what is relevant is the conduct of Carter subsequent to the incident and whether it prolonged or exacerbated the injury to his feelings.
Again, if Carter had told the true story, the Walkers’ accounts would have been accepted and they would not have been charged and would, on the probabilities, have achieved vindication in one or other of those enquiries. Carter’s deliberate failure to do so had the result that the humiliation and affront not only continued but was worsened.
·Conduct of the trial
Counsel for the plaintiffs submitted that the defence extensively cross-examined Donald Walker and other witnesses in an attempt to portray him as a "mendacious man who grossly exaggerated his claim". Reference was made to the fact that the defence attempted to allege that he had suffered no significant injuries and no significant economic loss.
As to the criticism of the extensive cross-examination of Donald Walker, counsel for the State directed his attention to the time aspect (not the challenge to the credibility) and argued that unresponsive answers by Donald Walker resulted in him being in the witness box longer than he would have otherwise needed to be. Counsel also relied on Donald Walker’s struggle as a witness. It is put that these added to the length of the trial and did not indicate an improper approach in the defence case.
It is true that the problems identified by the State added to the time during which Donald Walker had to deal with the attacks but that was a consequence of the physical and psychological damage done by Carter, with Sesin, and the resulting medication. While it may also be said that a substantial part of the cross‑examination was concerned with the unsuccessful lost opportunity claim, that cross‑examination was also a critical part of the prolonged and concentrated attack to portray Donald Walker as a mendacious person.[30] That strategy was a central part of the defence strategy on both the liability and quantum issues.
[30]See Appendix C of the first judgment.
In relation to the cross-examination on credibility, it was also argued for Carter that it cannot found an entitlement to aggravated damages against him. Counsel submitted that the reality was no more than that the instructions on which the cross-examination was based have not been accepted by the court on the balance of probabilities. It was put, further, that there was no evidence that Carter knew or must have known that his instructions were wrong.
I must disagree. It has been held that Carter had fabricated and lied extensively about what occurred. Such matters were put to Donald Walker. I am satisfied that Carter knew they were wrong.
Counsel for Carter also submitted that cross-examination of Donald Walker led the court to not accept Donald Walker’s evidence on some critical issues. By way of example, counsel referred to the rejection of Donald Walker’s allegation that Carter and Sesin beat him, including with batons, while he was handcuffed and the finding that the only violence held to occur after he was handcuffed was the stamp to the elbow. Counsel also referred to the rejection of Donald Walker’s evidence that Carter struck or punched Marcia Walker.
In my view, it is not relevant that some of the cross-examination of Donald Walker resulted in the non-acceptance of some of the evidence given by Donald Walker; for that did not occur on the basis that Carter and Sesin’s evidence should be accepted or that Donald Walker was lying. Rather, the basis was the probable unreliability of Donald Walker’s recollection resulting from the effect of the assault and battery on his perception and recollection at the relevant time. The fact that parts of the accounts of Carter and Sesin were in a sense verified on occasions, does not detract from the proposition that Carter (assisted by Sesin and others) lied extensively in the attempt to defeat the claims of the plaintiffs and that those lies formed the basis of cross-examination about the whole incident.
Counsel for the plaintiffs also submitted that the actions of Carter (supported by Sesin and the other police) in giving false evidence was the principal reason for the prolonged trial running on liability and so extended the humiliation and affront. Carter could have stopped it.
That proposition should be accepted. The defence on liability ultimately was based on the defendants’ reliance on the alleged truth of what Carter (and Sesin) had said about what occurred in the incident and on the proposition that their evidence should be accepted. The attacks on the credibility of Donald Walker and the argument that it was Donald Walker who was lying in his evidence, insofar as it related to the incident, was pursued and persisted in by relying on the continued and further expanded false accounts of Carter (and Sesin). If Carter alone had not persisted in his false account but had told the truth, the case would have had to proceed as an assessment and, as a result, the effect of the original humiliation and affront would either have been removed or at least significantly reduced.
Counsel for the State of Victoria raised the proposition that the Court left open the conclusion as to whether Carter was lying or had failed to perceive or understand that he was a source of the violence. Counsel was referring to the statement[31] accepting that what occurred was the worst violence Carter had been involved in over 16 years but that he was either lying or failed to understand that the violence came overwhelmingly from him and to a limited extent from Sesin. It is argued that this misperception or lack of appreciation persisted and shaped the character of the trial in respect of liability questions. It is put that this, if it were the situation, did not establish mala fides or unjustifiability in the conduct of the defence such as to contribute to aggravated damages.
[31]In para.109 of the reasons.
It is true that I left alternatives open. No concluded view was expressed at that time, however, because the parties were to have the opportunity to submit further material and the above reasons raised the issue.
I should now address the issue and I do so by indicating that I am satisfied that there was no misperception by Carter. Carter’s evidence on this issue, as with the details of which the defence was based, was a deliberately false account.
In my view, the conduct of Carter’s defence on the issue of liability was based on deliberate lies and was therefore mala fide and unjustifiable.
Assessment of Donald Walker’s claim for aggravated damages
As conceded by counsel for Carter, the jurisdiction to award aggravated damages in favour of Donald Walker was enlivened by the facts found in relation to the incident itself. I turn to the question of the assessment of those damages.
The circumstances were that Donald Walker was beaten unlawfully, viciously and in a cowardly fashion by Carter (in concert with Sesin) in his home, in the presence of his mother. Further he witnessed his mother, Marcia Walker, being injured in his home and in his presence directly as a result of an assault by Carter. This occurred because she lawfully came to his aid to prevent Carter beating him and he witnessed her in turn suffer significant physical and emotional injuries. His rights were flouted by two police officers who were sworn to uphold the law. He observed Marcia Walker’s rights being flouted by Carter. He was treated with contempt on the night and observed his mother being treated with contempt by the other police officers. That conduct would not have occurred if Carter had been honest and given a true account to his colleagues of what had occurred. Donald Walker’s shocked and traumatised reaction to the events were to be expected. I am satisfied that, though such matters were not articulated by him, Donald Walker was significantly humiliated, insulted and affronted by what occurred.
Unfortunately, these injuries to his feelings caused by the affront, humiliation and insult described, have, in the case of Donald Walker continued until the least date of the first judgment[32] as a result of the ongoing failure by Carter to correct his false account. Further, the injury to Donald Walker’s feelings, was exacerbated by having to cope with false charges being brought (but essentially abandoned), his complaints to official channels being purportedly investigated but unsuccessful and by the protracted civil proceedings and a protracted trial. In that trial, the prolonged attack on Donald Walker’s honesty was a key and critical aspect of the conduct of the defence on both liability and quantum issues. As to the latter, the defendants being unwilling to call the medical and psychiatric experts who had examined Donald Walker for the defence side, nonetheless cross‑examined him as to the extent of his injuries and their effect on him and on his earning capacity in the hope of damaging Donald Walker’s credibility. I am satisfied that this occurred as part of a war of attrition that was engaged in by the defendants. That issue is discussed in more detail in the context of the plaintiffs’ claim for penalty interest. As to the liability issues, the defence was based, to a significant extent, on the false statements and evidence of Carter.
[32]19 December 2008.
The failure of Carter to acknowledge what happened is the common and substantial thread running through the above matters and can be identified as a primary cause for the injury to Donald Walker’s feelings continuing and worsening over the ensuing years since 1993. He cannot escape liability because the conduct of others was involved in the subsequent events. If he had dealt honestly with the liability issues, the extent of the injury to his feelings would have been significantly reduced, it would not have persisted and would not have worsened. The war of attrition could not have been fought in these proceedings.
In all the circumstances, I have come to the conclusion that the amount of aggravated damages sought for Donald Walker of between $150,000 and $200,000 is modest. In all the circumstances it would be appropriate to award aggravated damages of $200,000.
The estate claim for aggravated damages
Relevant issues identified by the plaintiffs
The findings identified as relevant to the claim for the estate of Marcia Walker by its counsel were the following:
·The individuals and their circumstances
Counsel referred to Carter and Sesin being young and fit and sworn to keep the peace and enforce the law. Further, counsel referred to the fact that at the time of her injuries Marcia Walker was 67, on a stick and had restricted mobility.
·The reasons for her presence
She went to the unit in Essex Road to investigate the disturbance caused by Carter kicking in the door. The kicking in of the door was not justified. There was no scream. Counsel also alleged that Carter attempted to force her to leave Essex Road and this was unjustified.
·The events at the scene after the incident
Counsel submitted that the police at the scene deliberately and falsely set out to paint her as a significant villain in the events of the night. She was falsely described as a liar, and going crazy. Carter responded to Pluim’s comment that she was out of her tree by saying she was a lunatic. Counsel submitted that heavy handed pressure was brought upon her by Sergeant Pluim to change her truthful account of what happened. Counsel also submitted that Pluim supported Carter and Sesin in their elaborate story to hide their wrongdoing.
·Subsequent police and State conduct
Counsel submitted that she was falsely charged with assaulting police. Reliance was placed on the fact that the charges were withdrawn on the third day of the hearing. Counsel also argued that the falsity of the evidence against her and the injustice of the criminal charges were all ignored by those State employees with whom Donald and Marcus Walker dealt with on her behalf.
·Long term consequences
Counsel argued that is was relevant to consider that she was distressed not only by her own injuries but also by the impact of the consequent injuries, physical and psychological, upon Donald and Marcus Walker.
The defendants have not advanced arguments directed specifically to the above propositions.
Assessment of the estate claim for aggravated damages
Marcia Walker had to endure the sight of her son being beaten up by police officers for no good reason, was in turn assaulted and otherwise treated with contempt by Carter. Her rights were flouted by a police officer sworn to uphold the law. She had to endure what happened afterwards at the scene including the persistent bullying, insulting and contemptuous behaviour of Sergeant Pluim in his interview and having to wait while Carter and Sesin were attended to by the ambulance people notwithstanding the significant differences in their injuries. Later, the humiliating treatment continued through the laying of charges based on Carter’s lies, charges which were subsequently withdrawn, and through the opposition to complaints which were lodged. These subsequent injuries to her feelings were allowed to occur by Carter because of his refusal to face up to the truth and tell it. I am satisfied that he had ample time on the night in question to inform Pluim and his other colleagues of what had happened. It needed only a few words for him to admit the truth to them.
The injury to her feelings, however, was of a lesser order and for a lesser period than that suffered by Donald Walker. Further, she did not have to endure this court case and its trial. In all the circumstances, a reasonable award of aggravated damages in respect of the injury to her feelings arising from the assault and battery would be $100,000.
The claims of Donald and Marcus Walker for exemplary damages - overview
Exemplary damages - the Law: common ground.
The plaintiffs and defendants appear to be in basic agreement as to the general principles to be applied. As was explained in Lamb v Cotogno[33], exemplary damages
"..go beyond compensation and are awarded "as a punishment to the guilty, to deter from any such proceeding for the future, and as a proof of the detestation of the jury to the action itself".
[33](1987) 164 CLR 1 at [8].
The High Court accepted that the conduct requiring punishment by exemplary damages is conduct showing
"a conscious and contumelious disregard for the plaintiff’s rights"[34].
[34]Quoting Brennan J. in XL Petroleum (NSW) Proprietary Ltd v Caltex Oil (Australia) Proprietary Ltd (1985) 155 CLR 448,471 ; the first defendant also refers to New South Wales v Ibbett (2006) 209 CLR 638, 647 [33]; Giller v Procopets [2008] VSCA 236 at [499] the Neave JA (Maxwell P agreeing).
The High Court has commented that the Lamb v Cotogno description covers the "greater part of the relevant field".[35] As to the deterrent aspect, the High Court has also commented
"the deterrence which is intended extends beyond the actual wrongdoer and the exact nature of his wrongdoing. It is an aspect of exemplary damages that they serve to assuage any urge for revenge felt by victims and to discourage any temptation to engage in self-help likely to endanger the peace".[36]
[35]Gray v Motor Accident Commission (1998) 196 CLR 1, [14].
[36]At 9.
The object of deterrence is not confined to the defendant and the victim but includes general deterrence extending
"beyond the defendant himself to other like-minded persons, but it also extends generally to conduct of the same reprehensible kind"[37]
[37]At 10.
Exemplary damages – other legal issues
Counsel for the plaintiffs submitted that bearing in mind the purposes of imposing exemplary damages, they should be such as to cause the defendant to "smart"[38]. Reference was also made to the statement by Heydon JA, as he then was, that "they must sting".[39]
[38]X. L. Petroleum (NSW) Proprietary Ltd v Caltex Oil (Australia) Proprietary Ltd (1985) 155 CLR 448, 472, per Brennan J citing Day v Woodsworth (1851) 13 HAW.363, 320 and Taylor J in Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR, at 136-7.
[39]Harris v Digital Pulse [2003] NSWCA 10 at 342 [254] -- cited with approval in James v Hill [2006] NSWCA 301, [84].
Counsel for the plaintiff also referred to authorities dealing with cases concerning police conduct. In particular, counsel submitted that highhanded conduct that has warranted an award of exemplary damages has included
· overbearing conduct while in custody of others[40]
[40]Vignoli v Sydney Harbour Casino [1999] NSW C. 1113.
· the giving of evidence rejected as false and duplicitous[41]
· heavy-handed and officious use of arbitrary power[42]
· conduct where it is necessary to bring home to officials of the State responsible for the police force that police officers must be trained and disciplined so that abuses by police officers of the kind that occurred do not happen again.[43]
[41]Lee v Kennedy and others [2000] NSW C. A. 153 at [14].
[42]Zaravinos v New South Wales [2004] NSW CA 320
[43]Adams v Kennedy and others at [36], [59]; New South Wales v Ibett above at 653 and cases there cited.
It has been noted in the authorities that there is no necessary proportionality between compensatory and exemplary damages. In addition, however, it has been recognised that in reality there can be an element of punishment in aggravated damages[44]. As a result, in considering whether to award exemplary damages and, if so, their quantum, it is necessary to consider whether the awarded compensatory damages, including aggravated damages, address any need that may exist in a particular case for punishment of the tortfeasor through the award of exemplary damages[45]. Double punishment must be avoided.[46] Further, the court should approach any assessment with restraint and moderation.[47] It also appears to be established that deciding whether to award exemplary damages, and their quantification, generally will involve the exercise of discretion except where there is no room for a discretion.[48]
[44]Uren v John Fairfax and Sons Proprietary Ltd above; De Reus v Gray [2003] VSCA 84 and [28] and authorities there cited.
[45]Backwell v AAA (1997) 1 VR 182, 186, 207-8.
[46]New South Wales v Ibett (2006) 229 CLR 638 at 647 [35].
[47]McFadzean, [106] -- [109].
[48]McFadzean, [112]; citing Gray above – eg where there has been substantial criminal punishment.
Counsel for Carter raised two issues which require resolution[49]
· Counsel attempted to rely upon the fact that in Horvath, findings made by the trial judge about the police evidence having been fabricated and lacking credit did not feature in the court’s assessment of exemplary (or aggravated) damages.
I prefer the analysis of this issue by plaintiffs’ counsel that in Horvath, the Court of Appeal was not deciding which elements of the conduct of the police could support an award for exemplary damages. The Court was ruling on the issue of the liability of the State for exemplary damages on the facts in that case in the light of s 123 of Police Regulations Act.
· Counsel also challenged the plaintiffs’ reliance upon the fact that, in Lee v Kennedy,[50] the New South Wales Court of Appeal held that the plaintiff was entitled to exemplary damages and in support of that proposition referred to the fact that the trial judge had, when discussing damages, stated that he had rejected the police evidence "as being false and duplicitous". Counsel argued that it did not follow from that reasoning that an award of exemplary damages could be justified where "police evidence was found on balance to be lacking in credit of itself." Assuming such a distinction can be made, I accept the submissions in reply of counsel for Donald Walker that the false and duplicitous evidence of Carter and Sesin was not merely relevant to assessing the evidence of the plaintiff and defendants but was relevant to whether the entire behaviour of Carter and his colleagues should be categorised as a "disgraceful episode"[51] and therefore one attracting an entitlement to exemplary damages.
[49] Note in Ibbett [55] the High Court said that the development of the law over the last 2 ½ centuries respecting Crown liability in tort did not support attention to the financial means of the miscreant public officers as a significant and limiting determinant of the quantum of damages. This is not an issue that has been raised in the present case.
[50]Above at [14].
[51]Lee v Kenney, above [14].
Bearing in mind the relevant purposes of exemplary damages, it is relevant to consider the conduct of the other associates of Carter during and after the assaults. It appears that this relates primarily to the issue of deterrence and the need to bring home to State officials responsible for the police force that behaviour of the kind revealed should not happen again. In the present case, as already noted, I am satisfied that the evidence of Carter and Sesin should be described as false and duplicitous. It may also be fairly said that the behaviour of Carter and Sesin, and officers such as Sergeant Pluim, in their treatment of Donald and Marcia Walker and their treatment of the truth, then and since, was such that the episode may be properly categorised as a “disgraceful episode”.
Possible limits on the quantum of exemplary damages
The second defendant raised several issues relevant to the question of whether there are particular limits on the quantum of exemplary damages, namely
· whether another party may be ultimately liable
· the financial means of the principal tort feasor
· the relevance of punishment available under the criminal law.
The issues raised are considered in Appendix R to this judgment. For the reasons there set out, I have concluded that the matters raised do not assist.
The claim for exemplary damages by Donald Walker
Issues raised by Donald Walker relevant to his claim for exemplary damages
Donald Walker relies upon the matters emphasised above about the incident (save for the assault on Marcia Walker), and subsequent events, in support of his claim for aggravated damages discussed above. To the extent that Donald Walker and the defendants are relying upon the same matters adverted to in the claim for aggravated damages, I refer to the material relating to that above and my summary of the responses of Carter and those, in reply, of Donald Walker and my analysis of them.
Donald Walker added the following submissions:
· The incident
Carter was the person who initiated the physical action and was extremely violent. It was put that he failed to act with reasonableness when alternate actions were available to him.
· Police behaviour at the scene of the incident
When Pluim appreciated that Marcia Walker’s account of how she and Donald Walker were injured raised a risk of an Ethical Standards enquiry into the behaviour of Carter and Sesin, he bullied Marcia Walker and attempted to have her falsely change her allegations of the illegality of the behaviour of Carter and Sesin. He also supported Carter and Sesin in an elaborate story to hide their wrongdoings.
· Police behaviour at the police station
It is put that the treatment meted out to Donald Walker after being arrested pointed to a strong antipathy towards him and an attitude that he had forfeited any right he might have had to proper consideration of his own well-being, his rights, or the facts.
· Subsequent Police conduct prior to the trial
For Donald Walker it is also argued that Sergeant Rogers was the informant to the Magistrates’ Court prosecution. Contemporaneous notes he made of the interview with Carter were not made available at the Magistrates’ Court to Donald or Marcia Walker. Further they were not discovered to the plaintiffs by the defendants’ solicitors until 18 April 2007, three weeks before this trial commenced. It is also put that Carter failed, in light of the objective evidence by which he must have known that he was in the wrong, to rectify the situation by being honest about what had occurred.
· Conduct of the trial
It is put that key witnesses for the defendants lied as to the events of 15 - 16 August 1993. There were also other police.
As to Carter’s performance as a witness, counsel for Carter referred to the findings that Carter deliberately exaggerated his account of the behaviour of Donald Walker and had reconstructed false accounts of critical parts of his evidence about the incident. Counsel questioned whether such findings, made on the balance of probabilities, could justify an award of exemplary damages.
The findings were made on the balance of probabilities but I was, and am, in fact satisfied as to those findings beyond reasonable doubt.
As to counsel’s further submission that such findings did not foreclose argument as to whether Carter wilfully and deliberately gave false evidence, I refer to my above finding that he did.
· No remorse
Generally it is put for Donald walker that on the night of 15 August 1993, and ever since, no apology by any police has been made. That is so, but it should be noted that Carter did express regret while giving evidence about one aspect - describing Marcia Walker as “a lunatic” to Pluim.
Further, it is put that Carter and Sesin have "pigheadedly" refused to acknowledge any wrongdoing. Not only that, but Carter has maintained that, if faced again with the same situation, he would act in exactly the same way. Counsel for the plaintiffs submitted that it is a relevant factor in the award of exemplary damages that, having regard to the facts made available to a defendant and with the benefit of hindsight Carter has failed to recognise the wrongdoing, express regret or apologise for the actions.
Counsel for Carter and the State attempted to address these issues in slightly different ways.
(a)Carter’s counsel argued that a reckless subjective belief that a very substantial force was necessary to contain the situation may explain the evidence that Carter gave in re‑examination that if the same situation arose now he would do nothing differently. I do not accept that he had such a subjective belief or that, if he did at the time, it has continued.
(b)Counsel for the State of Victoria argued that it was possible that Carter’s failure to perceive or understand that he was a source of violence, has persisted and that that explains why he says now he would do nothing differently. It is not wrongful future intent but incomprehension. The plaintiffs’ response is in essence, with the example cited, that Carter was not under any incomprehension through faulty perception but was lying.
As noted above that is my conclusion. After considering the issue further, I am also satisfied that Carter could not have failed to perceive that he was the source of the violence and in denying that fact was yet again lying.
In any event, if reckless subjective belief or incomprehension were to be accepted as explanations, they do not assist Carter; for he is still failing to acknowledge the reality of what happened and so is at considerable risk of repeating the conduct. As to his assertion that he would not act differently if presented with the same situation he is either stating his belief or is lying. Either way, he remains at risk of repeating the conduct.
I turn to an additional matter raised by counsel for the plaintiffs relevant to the deterrent purpose of exemplary damages.
· Police culture
Counsel for the plaintiffs submitted that Carter and Sesin "were confident that other police would willingly assist them to justify their actions". Noting that the other police were not well-known to them, Counsel submitted that the strong inference arose that there was a culture of the police tolerating false evidence by members. Counsel for the State of Victoria submitted that if the reality was that they were labouring under the misperception of events referred to above, their state of mind was not indicative of any such confidence held by either of them. Counsel put that the plaintiffs are relying on a chain of indirect inferential reasoning to draw an extremely significant conclusion about the culture. Counsel for the plaintiffs responded by drawing attention to appendix H1 and H2[52] of the original reasons and the expressed attitude of Sergeant Pluim[53] in support of the submission.
In my view, there is insufficient evidence to support a finding of the existence of such a culture then or now. But so far as the group of officers involved is concerned, they plainly joined ranks in support of Carter and Sesin. In doing so, the senior officers, particularly Pluim, failed to objectively consider the facts, despite the fact that there was a glaringly obvious inconsistency between the injuries suffered and Carter and Sesin’s account. Instead, they gave unquestioning support to Carter and Sesin which would have encouraged them to develop and continue with their lie. For the reasons given in the original reasons, Sergeant Pluim, as part of that support and encouragement was directly involved in the creation of a false picture designed to protect Carter and Sesin.[54] The underlying issues, therefore, remain relevant to the award of exemplary damages in that it should be brought home to the authorities that the police officers must be trained and disciplined so that abuses by police officers and failures of the kind that occurred do not happen. I note that the defendants have not placed evidence before the Court as to what steps have or will be taken to address these issues.
· Carter’s costs of and incidental to the defence of the conspiracy claim to the extent that they were incurred only in respect of that claim.
·the costs of the individual defendants (other than Carter) of the proceeding as a result of the discontinuance of the conspiracy claim.
Rule 63.15 provides:
“63.15 Discontinuance or withdrawal
Unless the Court otherwise orders, a party who discontinues or withdraws part of a proceeding, counterclaim or claim by a third party notice shall pay the costs of the party to whom the discontinuance or withdrawal relates to the time of the discontinuance or withdrawal.
(b) The lost opportunity claim
Counsel for Carter also submitted that the plaintiffs’ costs of the proceedings should be reduced by 2/10ths or 20% because of the failure of the plaintiffs on their lost opportunity claims. Carter’s costs in defending those claims should be ordered in his favour.
He relies upon rule 63.04. It provides as follows:
63.04 Costs of question or part of proceeding
(1)The Court may make an order for costs in relation to a particular question or a particular part of a proceeding.
(2)Where the Court makes an order under paragraph (1), the Court shall by order fix the proportion of the total costs of the proceeding which is attributable to the particular question or the particular part of the proceeding.
The second defendant focussed its submission on the costs incurred in opposing the plaintiffs’ unsuccessful lost opportunities claims and argued that a proportion of the plaintiffs costs should be disallowed under Rule 63.04. It made no submission on the other issues raised in relation to the discontinuance and I proceed on the basis that it does not seek to mount any argument in respect of that issue. A possible explanation may be that it did not prepare that aspect but relied on those representing the individual officers.
The plaintiffs in their response have proceeded on the basis that the costs issues should be resolved applying Rule 26.08(2)(a). They join issue on the above specific issues. I will proceed under Rule 26.08(2)(a) in determining the cost question and consider the application of the other rules. That appears to me, in any event, to be the appropriate way to proceed in exercising the Court’s costs discretion in this case.
It is convenient, therefore, to consider the two issues raised – the costs implications of and incidental to the discontinuance of the conspiracy claim and the costs orders sought by the defendants in respect of the unsuccessful lost opportunity claims. I consider, however, that, ultimately, they should be looked at in the context of the costs of the proceedings as a whole. There is a further issue, namely, whether the two claims are relevant where the circumstances were that they were live issues when the offers were made and would have been disposed of, if the offers had been accepted. I will return to these matters in due course.
Costs – the conspiracy claim issue
Counsel for Carter submitted that the catalyst for the abandonment of the conspiracy claim against Carter and the fourth, fifth, sixth, seventh, ninth and twelfth defendants was that on 4 May 2007, they brought a summons seeking the summary termination of the conspiracy claim. The summons was adjourned off to be dealt with at the trial. On the first day of the trial the plaintiffs sought leave to discontinue proceedings against all the police defendants served save for the assault and battery claim against Carter. Leave was given but the issue of costs was reserved for future argument.
Counsel for Carter relies upon the concession which he argues is implicit in abandoning the claim. Counsel submitted that there was no reason to depart from the usual order under Rule 63.15 and the orders are sought as stated above.
As noted above, counsel for the second defendant did not seek orders in respect of the costs associated with the conspiracy claim.
The plaintiffs addressed the particular issues raised by the defendants. Addressing the conspiracy claim issue as put, the plaintiffs submitted that the ordinary rule should not be followed. They argued that a percentage only of the claims of Carter and the fourth, fifth, sixth, seventh, and 12 defendants could be allowed and taxed on a party-party basis and offset against the costs awarded in Action number 6503 in favour of the plaintiffs. They listed the following points
·the defendants chose to leave their strike out application until 4 May 2007 and this served a forensic purpose because the longer and more difficult the trial would be, the stronger hand the State of Victoria had for a negotiation for any compromise of the battery claims
·the conspiracy theory was in part vindicated by the collegiality of the evidence available to Carter to sustain his defence. Much of this evidence fell "into disarray”.[93]
Counsel submitted that as a result any percentage of costs ordered to be set off should be significantly less than 50%.
[93]Paragraph 299 and appendix H of the first judgment.
In addition it was put that Carter and the fourth, fifth, sixth and seventh and ninth defendants to action number 6503 were all called as witnesses in the proceedings and their evidence covered much of the factual ground that would have been relevant to the claim which was discontinued. As to Carter, himself, it was put that no significant costs could reasonably have been incurred by Carter in respect of the conspiracy claim over and above those incurred in defending the other aspects of the claims.
Costs – the lost opportunity claims
As noted above, counsel for Carter argued that the costs associated with this failed issue should be addressed by reducing the costs to be otherwise awarded to the plaintiffs by 20% in respect of Action number 6503. For similar reasons, counsel submitted that Carter’s costs of opposing the lost opportunity claim should be ordered in his favour. Counsel submitted that at the commencement of the trial the claims were particularised at approximately $750 million and supported by an expert report assessing the loss of potential profits as being in excess of $1.269 billion. Counsel submitted that these claims were raised and pursued unreasonably. Counsel submitted that the claims occupied a substantial amount of hearing time and a significant proportion of the parties’ forensic effort. It was also put that delays occurred in the conduct of the trial while the plaintiffs sought to comply with their discovery obligations and provide particulars of the claims. Counsel also referred to the fact that there were six expert reports provided for the plaintiffs none of which were relied upon.
In response, counsel for the plaintiffs addressed the particular issues as put and submitted that the claims as particularised were figures which self-evidently required little material to defend them being based upon figures arising from the belief that Donald Walker and Marcus Walker had as to the potential of the business activities. The main point argued for the plaintiffs, however, is that the suggestion that 20% of the costs of the proceedings related to those matters exaggerated the role of the issue in the case “enormously". Counsel submitted that counsel for the defendants chose, in any event, to use those claims for the purpose of attacking the credit of Donald Walker and Marcus Walker. Counsel submitted that the time spent and costs incurred in attacking the credibility of Donald and Marcus Walker through the claims for lost opportunities was very considerable. Counsel argued that having regard to these matters the costs of the plaintiffs should not be reduced because the plaintiffs failed on those issues. It presumably is also put that no costs orders should be made in favour of Carter on this issue.
Costs – analysis
The conspiracy claims
I accept the plaintiffs’ submissions that, assuming an offset should occur, it would be inappropriate to offset all the costs connected to the conspiracy allegations. It was not a discrete issue. I accept that there were likely to have been some costs wasted as a result of the discontinuance in preparation as to that issue. But preparation for trial for Carter and the other police witnesses would have covered evidence relevant to the issues generally and the credibility of the police witnesses and so most of that preparation would not have been wasted. For issues would have been explored in any event to a very considerable extent because of the need to present evidence relevant to liability and damages concerning the incident, the conduct of the police at Essex Road and the conduct of the police subsequently to that. As to the trial itself, Carter, Sesin and the fourth, fifth, sixth, seventh, and ninth defendants to Action number 6503 were all called as witnesses and the questioning of them covered much the same factual ground as would have been covered in the conspiracy claim.
As to the other matters, there is insufficient evidence on which to reach a view about whether the Victorian Government Solicitor made a tactical decision not to seek to strike out the claim earlier. The point that the evidence as it emerged gave some vindication to the conspiracy allegations does not seem to me to assist in greatly resolving these costs issues, except that the claim cannot be dismissed as being without any basis. Taking the other matters into consideration, it seems to me that the claim by the relevant defendants, for costs thrown away by reason of the discontinuance of the conspiracy claim, should, if they were to be allowed, be confined to the costs of Carter and the fourth, fifth, sixth, seventh, ninth and 12th defendants incurred in the presentation and preparation of their defences of the proceedings until the discontinuance which have been thrown away with that event. In my judgment this would comprise a small percentage of the defendants’ costs.
Whether ultimately an allowance should be made in relation to the discontinuance of the conspiracy claim and, if so, to what extent, and whether that should be a basis for “otherwise ordering” under Order 26 will depend on other considerations which I discuss below after discussing the issues raised in respect of the lost opportunities claim.
The lost opportunities claims
As to the costs associated with the preparation for, and exploration of, the claim relating to business opportunities lost, a portion of the preparation work would have been wasted. But I have no doubt that even if the plaintiffs had not pursued those claims at the hearing, the defendants would have done so because they relied heavily on the material relevant to that issue to try to attack the credibility of Donald Walker and Marcus Walker. Thus it too was not a discrete issue[94]. It was also necessary for the defendants in making that attack to have expert assistance providing material required to support that attack. In addition, a significant amount of the evidence relevant to the lost opportunity claim was also relevant to the claim for past lost earnings and earning capacity and future loss of earning capacity and costs. It would have been called and tested on those issues. Pursuit of the issue did not unnecessarily prolong the trial in my view.[95]
[94]GT Corporation Pty Ltd v Amare Safety Pty Ltd (No. 3) [2008] VSC 296 at [31].
[95]GT Corporation Pty Ltd (above), [49].
For these reasons, the situation was not that sought to be described on behalf of the defendants. In fact, the time wasted in preparation for and in the hearing on that issue that would otherwise have been saved if the issue had not been pursued by the plaintiffs was, in my view, minimal at most. In my judgment there was likely to have been a more significant saving in respect of the plaintiffs’ costs in their preparation if it had not been pursued.
Costs – other relevant considerations
The powers under Rules 26.08, 63.15, 63.04, are not to be considered in a vacuum. It is necessary to consider them, and the allowances claimed under the latter rules, in the context of the performance of both parties in the conduct of the case generally.
As to the plaintiffs’ conduct, the defendants have identified two relevant matters and they have been discussed above. As to the defendants’ conduct, I have referred to the defendants’ war of attrition and given examples. Alternatively, and at best for the defendants, it was a self-indulgent defence in which issues were pursued that they could not reasonably have expected to win. That conduct added considerably to the time and cost of the litigation.
It is not possible to assess with any precision the costs flowing from the example of the parties’ conduct that has been identified. But in my judgment, the costs expended and wasted by the parties in dealing with the issues unsuccessfully pursued by the defendants were substantial and would have exceeded the costs expended and wasted by the parties on the conspiracy and lost opportunity claims. Alternatively, the defendants cannot demonstrate that there was a deficit in their favour or one that would warrant any reduction from an award of indemnity costs from the commencement of the proceedings. Having regard to these realities, I am not persuaded that any reduction should be made in respect of the matters identified by the defendants from the costs to which the plaintiffs would otherwise be entitled as a result of failures by the defendants to accept the offers of compromise or costs ordered in favour of the defendants on any issues. The offers of compromise should be allowed to have their full costs consequences under Order 26. The Court should not otherwise order.
To conclude, while considering the issues raised, I became concerned about an issue not raised or debated but arguably pertinent to the determination of the issue of costs. I noted above that when the offers of compromise were made, the costs of the discontinuance and of the lost opportunity claim were live issues and, if the offers of compromise had been accepted by the defendants, the results would have been no costs allowances in favour of the defendants. As to the plaintiffs, under the terms of the offer of compromise, they would have borne their own costs. The offers purported, therefore, to deal with all costs issues. In such circumstances, I suggest that a question arises as to the relevance of the matters raised by the defendants to the exercise of the cost discretion, the powers under Order 26 and the relevance of the under Rules 63.15 and 63.04. When they received the offers, the defendants were in a good position to understand the complexities of the case, the relative strengths and weaknesses and the potential outcomes. The defendants cannot, and do not, point to any difficulty in assessing the offers.[96] They chose, however, to take their chances on the offers of compromise and the cost outcomes proscribed by the Rules. It may be arguable that, unless there are special circumstances, it would be inconsistent with the objectives of r 26.08 to permit a defendant to raise such issues when they were effectively addressed by the offer. The issues not having been debated before me, however, I express no final views upon them.
[96]cf Siminovski v Bendigo Bank Ltd (No. 2) [2003] VSC 139 (offeree denied access to information improperly by offeror; Johnson Tiles above; (inability of offeree to analyse the claims).
Conclusion
To sum up, I have come to the conclusion that aggravated damages should be awarded to Donald Walker in the sum of $200,000. He should also receive $400,000 by way of exemplary damages. Marcus Walker should be awarded aggravated damages of $75,000. The estate should be awarded aggravated damages of $100,000.
In relation to interest, interest on general damages should be awarded as follows:
·Donald Walker $63,000
·Marcus Walker $42,000
·Marcia Walker’s Estate $21,000
Interest should be awarded on their damages for economic loss to Donald and Marcus Walker as follows:
·Donald Walker $310,843 and $98.63 per day from 18 May 2009
·Marcus Walker $128,492 and $54 per day from 18 May 2009
As to costs, the defendants should be ordered to pay the plaintiffs’ costs in each proceeding on an indemnity basis.
APPENDIX Q – THE INCIDENT; OTHER POSSIBLE CAUSES
The incident – Other possible causes
Training
Counsel for the plaintiffs referred to the question of the training of Carter and Sesin. Counsel commented that they were the only witnesses called as to details of their training and their evidence conflicted on issues such as what targets were to be chosen for baton blows (body or limbs) and on other important details of their training.[97] Counsel argued that it was evidence that they had different understandings of the content of their training and may reflect upon the clarity of it.[98] Counsel submitted that, on the evidence of the defendants, there was no information as to whether better police training would have lessened the likelihood of the events not being repeated.
[97]Reasons for judgment [161] – [166] and footnote 117.
[98]Reasons [166].
Counsel for the second defendant submitted that there was insufficient information and evidence and that the State does not bear the burden of proof.
I accept that there is insufficient evidence to draw any relevant conclusions as to the training and its effect on the incident. What is significant about the evidence, however, a point referred to in the earlier published reasons, was what it revealed as to Carter’s perception as to what he was trained to do and how that reinforced the conclusion that what he did was done with full knowledge of what he did and done deliberately.
Wrongly rostered together
Counsel for the plaintiffs also submitted that Carter and Sesin were inexperienced and should not have been rostered to work together on their own.
Counsel for the second defendant submitted that there was no evidence upon which to make a finding that the Victoria police should have foreseen the likelihood that harm otherwise would follow if they were rostered to work together. Their combined experience post graduation was in excess of five years. Counsel submitted that there was no basis to conclude that the Victoria police should have somehow foreseen the potential for the events.
The plaintiffs’ response was to say that if possible junior police should be rostered with those with greater experience and maturity and that was a matter of common sense.
The discussion on these two issues did not relevantly advance matters beyond the point already reached about their lack of experience.
I note also that, while the specific issues might have been relevant to a possible negligence claim against the second defendant, such a claim was not made.
APPENDIX R – POSSIBLE LIMITS ON THE QUANTUM OF EXEMPLARY DAMAGES
Another party may be ultimately liable – relevance?
An issue referred to by the second defendant is whether the award of exemplary damages may be restricted where another party may ultimately be liable for the payment of the damages. It accepts, however, that generally that is not so[99] -- a position accepted by the plaintiffs. I proceed on that basis.
[99]Lamb v Cotogno (1987) 164 CLR 1, 9; Gray v Motor Accident Commission (1998) 196 CLR 1, 12.
Financial means of principal tort feasor
Counsel also drew attention to the High Court decision of NSW v Ibbett[100] where it was concluded that the financial means of the principal tortfeasor are not a significant and limiting determinant of the quantum of liability for exemplary damages where the Crown is vicariously liable. Counsel, however, sought to distinguish that decision and argued that the Court should focus on the personal circumstances of the principal tortfeasor rather than the financial resources of the State in determining quantum. The argument was put on the basis of the different legislative structure applicable in New South Wales and Victoria at the relevant times dealing with the issue of the liability of the State for torts committed by police members. In particular it was argued that the issue of vicarious liability was considered in Ibbett in the context of the Law Reform (Vicarious Liability) Act 1983 (NSW) as amended. Counsel submitted that it was very different to the statutory framework provided by s 123 Police Regulation Act and that this provides a proper basis to distinguish Ibett. As pointed out by counsel for the plaintiffs, however, the liability of the State arises from s 23 (1) (b) of the Crown Proceedings Act and the admission of vicarious liability by the State.
[100]Above at 654.
I am not persuaded, on the authority cited, that it is relevant to consider the personal circumstances of the principal tortfeasor in determining the appropriate quantum of exemplary damages. I was not, in any event, provided with evidence about the circumstances of the principal tort feasor relevant to the issue.
Relevance of punishment available under the criminal law
Counsel for the second defendant submitted that in determining the quantum of exemplary damages, the Court should have regard to limits on financial penalties found in the criminal law. Counsel submitted that to do otherwise would be to introduce a lack of congruity in the law particularly when one considers the different standard of proof applicable in each jurisdiction. In support of the general proposition counsel relied upon the statement of Gibbs CJ in XL Petroleum[101] that Lord Devlin was correct in Rookes v Barnard
" in pointing to the risk that exemplary damages might amount to a punishment greater than would be likely to be imposed if the conduct were criminal….”[102]
The plaintiffs take no issue with that statement.
[101]Above.
[102]The passage went on to make the point that the approach to assessment required restraint.
Counsel for the second defendant went on to refer to the penalty for intentionally causing serious injury proscribed by s 16 Crimes Act 1958. Counsel argued that it was punishable by a maximum of level 3 imprisonment and that the “equivalent” level 3 fine was 2400 penalty units which translates to a current value fine of approximately $272,000.[103] Counsel submitted that the lower suggested figure for Donald Walker and Marcus Walker exceeded, in each case, the maximum financial penalty provided in criminal law and, if combined, by 2.2 to 3.6 times.
[103]Sentencing Act 1991, s 109 -- table 2.
Counsel for the second defendant submitted that the calculations are conservative. It is put that they are based on
· the most serious form of assault,
· the maximum financial penalty available without regard to mitigatory matters, and
· the current value of a penalty units rather than the 1993 value.
The second defendant submitted that in all the circumstances the sums of exemplary damages sought by the plaintiffs totalled between $600,000-$1,000,000 and were manifestly excessive even at the lower suggested figure.
In my view, the argument does not correctly apply the legislation. The offence of intentionally causing serious injury carries with it the primary penalty of a maximum term of imprisonment of 20 years.[104] In addition, the offence of recklessly causing serious injury carries with it the primary penalty of a term of imprisonment of 15 years.[105] A further difficulty with the argument advanced for the second defendant is that s 109(2) which sets out the penalty units for the maximum fine for a level 3 offence relied upon by the second defendant, is not applicable because it applies to
“an offence described in an Act….being an offence of a level specified in Column 1 of Table 2 or as being punishable by a fine of a level specified in that column”
The offences of intentionally and recklessly causing serious injury are described in the Crimes Act ss 16 and 17 as punishable by Level 3 and Level 4 imprisonment respectively not by a fine of a specified level. They, therefore, do not come within s 109(2) of the Sentencing Act. The purported comparison, therefore, breaks down and does not assist. The relevant comparison is with substantial periods of imprisonment.
[104]Section 16 Crimes Act 1958 – “Level 3 imprisonment”.
[105]Section 17 Crimes Act 1958 – “Level 4 imprisonment”.
I also accept, in any event, the submissions on behalf of the plaintiffs that there is no authority to support a cap on damages based on relevant criminal penalties. I also accept the submission for the plaintiffs that the principles to be applied in assessing damages in civil proceedings, including aggravated and exemplary damages, developed through the common law, are different to those that guide the exercise of the sentencing power, to be found primarily in the Sentencing Act 1991. I accept their propositions that
·aggravated damages are proportionate to the injury to the plaintiffs’ feelings caused by insult, humiliation and the like and are unrelated to criminal penalties, and
·exemplary damages are proportionate only to the gravity and character of the defendants’ conduct.
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