Whitbread v Rail Corporation New South Wales
[2011] NSWCA 130
•24 May 2011
Court of Appeal
New South Wales
Case Title: Whitbread & Anor v Rail Corporation NSW & Ors Medium Neutral Citation: [2011] NSWCA 130 Hearing Date(s): 14, 15 February 2011 Decision Date: 24 May 2011 Jurisdiction: Before: Giles JA at [1]
McColl JA at [2]
Whealy JA at [72]Decision: (1) Set aside the judgments for $10,000 in favour of the first appellant and $12,000 in favour of the second appellant and in lieu thereof judgments for $12,201.28 and $13,834.40 respectively taking effect on 14 October 2008.
(2) Appeals otherwise dismissed.
(3) Appellants to pay respondents' costs of the appeals.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]Catchwords: TORT - wrongful arrest and false imprisonment - whether transit officers had authority to arrest and detain appellants - whether power to arrest and detain enlivened by breach of Rail Safety (General) Regulation 2000 - Crimes Act 1900 (NSW) s 352
TORT - Injurious falsehood - whether elements of cause of action established
DAMAGES - Tort - adequacy of general damages
DAMAGES - Tort - exemplary damages - assault - whether individual respondent acted in contumelious disregard of appellants' rights - whether exemplary damages available where individual respondent convicted in respect of assault of one appellant and acquitted in respect of assault of other - whether exemplary damages available on evidence of disciplinary action taken by employer in respect of individual respondent - relevance of appellants' conduct
DAMAGES - Tort - aggravated damages - assault - whether appellants provoked assault
Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
Law Reform (Vicarious Liability) Act 1983 (NSW)
Rail Safety Act 2002 (NSW)
Victims Compensation Act 1996 (NSW)
Rail Safety (General) Regulation 2003 (NSW)
Uniform Civil Procedure Rules 2005Cases Cited: Adams v Kennedy [2000] NSWCA 152; (2000) 49 NSWLR 78
Amalgamated Television Services Pty Ltd v Marsden (No 2) (2003) 57 NSWCA 338
Ballina Shire Council v Ringland (1994) 33 NSWLR 680
Blacktown City Council v Hocking [2008] NSWCA 144
Burns v Seagrave & Anor [2000] NSWSC 77
Carter v Walker [2010] VSCA 340
Daniels v Thompson [1998] 3 NZLR 22
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
Fontin v Katapodis [1962] HCA 63; (1962) 108 CLR 177)
Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504
Gould v Vaggelas [1985] HCA 75; (1985) 157 CLR 215
Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1
Harris v Digital Pulse Pty Limited [2003] NSWCA 10; (2003) 56 NSWLR 298
Hill v Cooke [1958] SR (NSW) 49
Horkin v Port Melbourne Football Club Social Club [1983] 1 VR 153
House v The King [1936] HCA 40; (1936) 55 CLR 499
James v Hill [2004] NSWCA 301
Knight v State of New South Wales [2004] NSWSC 791
Kuddus v Chief Constable of Leicestershire Constabulary [2001] UKHL 29; [2002] 2 AC 122
L Shaddock & Associates Pty Ltd v Parramatta City Council [No 2] [1982] HCA 59; (1982) 151 CLR 590
Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1
Maricic v Dalma Formwork (Aust) Pty Ltd [No 2] [2006] NSWCA 237; (2006) 67 NSWLR 712
New South Wales v Ibbett [2006] HCA 57; (2006) 229 CLR 638
Niven v SS [2006] NSWCA 338
O'Connor v Hewitson & Anor [1979] Crim LR 46
Palmer-Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69; (2001) 208 CLR 388
Peeters v Canada (1993) 108 DLR (4th) 471
Pettigrew v Northern Ireland Office [1990] NI 179
Police Service Board v Morris [1985] HCA 9; (1985) 156 CLR 397
Pringle v Everingham [2006] NSWCA 195; (2006) 46 MVR 58
R v Mai & Anor (1992) 26 NSWLR 371
Re Bolton; Ex Parte Beane [1987] HCA 12; (1987) 162 CLR 514
Rich v ASIC [2003] NSWCA 342; (2003) 183 FLR 361
Roads and Traffic Authority NSW v Palmer [No 2] [2005] NSWCA 140
Rookes v Barnard [1964] UKHL 1; [1964] AC 1129
Schindler Lifts Australian Pty Ltd v Debelak (1989) 89 ALR 275
State of New South Wales v Ibbett [2005] NSWCA 445; (2005) 65 NSWLR 168
State of New South Wales v Riley [2003] NSWCA 208
Sved v Council of the Municipality of Woolhara [1998] NSW Conv R 55-842
TCN Channel Nine Pty Ltd v Anning [2002] NSWCA 82; (2002) 54 NSWLR 333
Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118
W v W [1999] 2 NZLR 1
Wentworth v Rogers [No 3] (1986) 6 NSWLR 642
Wilkes v Wood [1763] EngR 103; (1763) Lofft 1; 98 ER 489
Woodley v Boyd [2001] NSWCA 35
XL Petroleum NSW Pty Ltd v Caltex Oil (Aust) Pty Ltd [1985] HCA 12; (1985) 155 CLR 448Texts Cited: Fleming's Law of Torts, 9th ed (1998) Thompson Reuters
G. Sawer, "Second Thoughts on Defamation", Nation, 20 Dec 1958, cited in WL Morrison, "The New Law of Verbal Injury" 3 Sydney Law Review (1959-1961)
Halsbury's, Laws of Australia, LexisNexis
Law Commission for England and Wales Consultation Paper no 132, Aggravated, Exemplary and Restitutionary Damages: A Consultation Paper (1993) (LCCP No 132)
Law Commission for England and Wales, Aggravated, Exemplary and Restitutionary Damages (LAW COM No 247)
Luntz, Assessment of Damages for Personal Injury and Death: General Principles (2006) LexisNexis Butterworths
Mayne and McGregor on Damages, 12th ed (1961) Sweet & Maxwell
Ontario Law Reform Commission, Report on Exemplary Damages (1991)Category: Principal judgment Parties: Sebastian Whitbread (First Appellant)
Christian Whitbread (Second Appellant)Rail Corporation New South Wales (First Respondent to First and Second Appellant)
Andrew Schofield (Second Respondent to First and Second Appellant)
John Borchard (Third Respondent to First and Second Appellant)
Christopher Sanderson (Fourth Respondent to First and Second Appellant)
Geoffrey Blight (Fifth Respondent to Second Appellant)Representation - Counsel: Counsel:
M Neil QC/ M Thompson (Appellants)
D Hooke SC/ D Sulan (Respondents)- Solicitors: Solicitors:
Gerard Malouf & Partners (Appellants)
Hicksons Solicitors (Respondents)File number(s): 2009/2981192009/298120 Decision Under Appeal - Court / Tribunal: District Court - Before: O'Connor DCJ - Date of Decision: 14 October 2008 - Citation: - Court File Number(s) 2009/400052009/40006 Publication Restriction:
Judgment
GILES JA : I have had the benefit of reading in draft the reasons of Whealy JA, and the reasons of McColl JA as to exemplary and aggravated damages. I agree with Whealy JA, including that the conduct of Schofield was not such as to warrant exemplary damages and that the trial judge did not err in taking account, as relevant factors but by no means determinative, of the plaintiffs' behaviour and the criminal and disciplinary proceedings against Schofield. I would observe that the question in Niven v SS [2006] NSWCA 338 was whether the subsequent acquittal was a bar to exemplary damages, not whether regard could be had to the subjection to the criminal process.
I agree with the orders proposed by Whealy JA.
McCOLL JA: I have read Whealy JA's reasons. I agree with his Honour's reasons save as to the issue of aggravated and exemplary damages. I shall not repeat the facts save to the extent necessary to explain my reasons.
Exemplary damages
It is convenient to deal first with exemplary damages.
Both appellants' claims for exemplary damages were based, in part, on Schofield's physical attack on them (described in their pleadings as unprovoked), its gravity, the physical injury the appellant suffered and the contemptuous manner in which the respective appellant's rights were abused.
Whealy JA has set out (at [115]) O'Connor DCJ's reasons for rejecting the appellants' claims for exemplary damages.
It is not, with respect, clear why the primary judge refused to award exemplary damages. His Honour referred to the facts that the power to award such damages should be exercised with restraint, that such damages were only awarded when the defendant's conduct was of such a character that it merited punishment in the sense that it must have been knowingly wanton, fraudulent, malicious, violent, cruel, insolent, highhanded or an abuse of power and to the relevance of the abusive and belligerent behaviour "of the plaintiff". His Honour also took into consideration "the fact that [Schofield] was prosecuted for assault on both plaintiffs and found guilty of those offences in the Local Court" - although he noted that the conviction in respect of Christian was quashed on appeal to the District Court while "[t]he finding of guilt in respect of Sebastian Whitbread was confirmed, but his conviction was quashed pursuant to the provisions of s 10 of the Crimes (Sentencing Procedure) Act ." His Honour referred to the fact that Schofield "was also subject to disciplinary proceedings and suspended from his employment".
The primary judge did not, however, indicate which of these factors he regarded as determinative against an award of exemplary damages.
I will discuss each matter the primary judge mentioned in these reasons. Before doing so three factual matters should be mentioned.
First, it is relevant to recall the primary judge's findings based on his review of the CCTV footage of Schofield's attack on the appellants:
"The CCTV does not reveal any physical act of aggression by either plaintiff before Schofield lunged at Sebastian. There is no suggestion in any of the statements in exhibit H that either plaintiff punched or struck any of the transit officers."
His Honour's observations accord with my viewing of the CCTV footage. The incident is also, in my view, captured in still photographs which were tendered at trial. I am conscious of the need for restraint in using photographic evidence and refer to them as explicating the evidence of the circumstances in which Schofield assaulted each appellant: see generally Blacktown City Council v Hocking [2008] NSWCA 144.
The photographs show that immediately before the incident the appellants were standing with their arms straight beside them while the man identified as Schofield is both speaking (apparently to Sebastian) and gesturing with his right arm. In addition to Schofield, eight burly uniformed men surround the appellants - they were, as the primary judge found "clearly outnumbered". There is a distance of possibly a metre or so between Schofield and Sebastian who appeared to be more opposite Schofield than Christian who was to one side. That distance was bridged when Schofield lunged at Sebastian and grabbed him by the throat and then forced him to the ground, at which stage it appears other uniformed men moved in to control him physically. Christian moved towards Schofield and Sebastian while the former still appears to be restraining Sebastian in the vicinity of his upper body. It is apparent that Christian is verbally remonstrating with Schofield when the latter seizes him by the arm and commences throwing him to the ground. Although this does not appear from the still photographs, it is uncontroversial that in the course of this incident Schofield grabbed Christian's head and slammed it into the ground as well as slapping his face two or three times with the back of his hand, causing his lip to bleed.
The second factual matter concerns the question of the criminal proceedings against Schofield. His Honour said in this respect:
"I also take into consideration the fact that the second defendant was prosecuted for assault on both plaintiffs and found guilty of those offences in the local court. The second defendant appealed to the District Court and the conviction in respect of Christian was quashed. The finding of guilt in respect of Sebastian was confirmed, but his conviction was quashed pursuant to the provisions of s 10 of the Crimes (Sentencing Procedure) Act 1999. Nevertheless, such matters remain on the criminal record of the second defendant and in that sense could be regarded as a punishment as a result of the events of that evening ." (emphasis added)
There was no evidence at trial about any criminal proceedings against Schofield. Mr Thompson, who appeared for the appellants at trial, sought to tender records produced by the District Court which appear to have related to some such proceedings but counsel for the respondents objected and the tender was rejected. The primary judge's statements in the judgment concerning Schofield's prosecution appear to have been drawn in part from the debate which took place surrounding the unsuccessful tender, although I would note that the matter I have emphasised in quoting his Honour's statement was not referred to during that debate.
It should also be noted that the respondents did not rely at trial on any suggestion that there had been criminal proceedings against Schofield as a reason for defeating the exemplary damages claims. The written and oral submissions record that the respondents sought to meet that claim by relying on the propositions that such damages are rarely awarded and the appellants' conduct prior to the assault should be taken into account.
The third factual matter concerns the primary judge's reference to Schofield having been subject to disciplinary proceedings.
There was some, albeit scant, evidence of what Rail Corporation New South Wales ("RailCorp") did in relation to Schofield in relation to the incident. On 18 March 2004 RailCorp wrote to Schofield referring to "a report of [his] behaviour towards two (2) customers at Gosford Station on 13 th March 2004 at approximately 4.00am" and advising him he was temporarily suspended with pay until further notice, while a Disciplinary Investigation was conducted. In April 2004 a "Report of a Preliminary Inquiry into and Incident at Gosford Station involving Transit Officers" found that "[t]he evidence supports a finding that STO Schofield appears to have breached the Code of Workplace Standards by assaulting both Sebastian and Christian Whitbread." The report recommended:
"STO Schofield is advised in writing of the particulars of the alleged breaches of the Code of Workplace Standards pertaining to his alleged assaults on Sebastian and Christian Whitbread and a written response sought. On receipt of the written response, STO Schofield should be requested to attend a Disciplinary Interview. A determination should then be made as to what disciplinary action, if any, is required." (emphasis in original)
There was no evidence as to what, if anything, happened in relation to this recommendation. There was no evidence that Schofield was subjected to any formal disciplinary proceedings. Finally I would note, again, that it does not appear from the written or oral submissions at trial that the respondents relied upon there having been any such proceedings to defeat the exemplary damages claims.
Legal Principles
Exemplary damages are awarded "as a punishment to the guilty, to deter from any such proceeding for the future, and as a proof of the detestation of the jury to the action itself": Wilkes v Wood [1763] EngR 103; (1763) Lofft 1 (at 19) (98 ER 489, at 498-499) per Pratt LCJ cited with approval in the joint judgment in Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1 (at 8). Such damages will be awarded where a defendant engages in conduct "variously described as 'wanton and malicious', as 'conscious wrongdoing in contumelious disregard of the plaintiff's rights', as 'outrageous', 'atrocious', 'vindictive', 'arrogant', 'high handed' or 'insolent' ": Lamb v Cotogno (at 3). While "it may be doubted whether a single formula adequately describes the boundaries of the field in which they may properly be awarded. ... the phrase ... of 'conscious wrongdoing in contumelious disregard of another's rights' describes at least the greater part of the relevant field": Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1 (at [14]) per Gleeson CJ, McHugh, Gummow and Hayne JJ.
Exemplary damages are awarded rarely. Something more must be found than a mere finding of fault: Gray (at [12]). The remedy is exceptional in the sense that it arises (chiefly, if not exclusively) in cases of conscious wrongdoing in contumelious disregard of the plaintiff's rights: Gray (at [20]). The intent or recklessness necessary to justify an award of exemplary damages may be found in contumelious behaviour which falls short of being malicious or is not aptly described by the use of that word: Lamb v Cotogno (at 13).
In considering whether to award exemplary damages "the first, if not the principal, focus of the inquiry is upon the wrongdoer, not upon the party who was wronged": Gray (at [15]; (at [31]) "the conduct of the wrongdoer is central to that enquiry") per Gleeson CJ, McHugh, Gummow and Hayne JJ. In contradistinction, in the case of aggravated damages the assessment is made from the point of view of the plaintiff: State of New South Wales v Ibbett [2005] NSWCA 445; (2005) 65 NSWLR 168 (at [83]) per Spigelman CJ; referred to with approval in New South Wales v Ibbett [2006] HCA 57; (2006) 229 CLR 638 (at [34]).
An illustration of the extent to which an award of exemplary damages focuses on the wrongdoer can be seen in passages from two English decisions both cited with approval in New South Wales v Ibbett (at [39] - [40]). The first is by Lord Devlin in Rookes v Barnard [1964] UKHL 1; [1964] AC 1129. His Lordship, as the High Court observed, "was no supporter of the general use of [the] remedy" of exemplary damages. However he said, in Rookes v Barnard (at 1223), that he would not wish "to diminish its use in this type of case where it serves a valuable purpose in restraining the arbitrary and outrageous use of executive power" and (at 1226) that such damages should be awarded in the case of "oppressive, arbitrary or unconstitutional action by the servants of the government". His Lordship contrasted the law's attitude to an abuse of power by a private citizen to that by a servant of the government:
"Where one man is more powerful than another, it is inevitable that he will try to use his power to gain his ends; and if his power is much greater than the other's, he might perhaps be said to be using it oppressively. If he uses his power illegally, he must of course pay for his illegality in the ordinary way; but he is not to be punished simply because he is the more powerful. In the case of the government it is different, for the servants of the government are also the servants of the people and the use of their power must always be subordinate to their duty of service."
The second decision is Kuddus v Chief Constable of Leicestershire Constabulary [2001] UKHL 29; [2002] 2 AC 122 in which Lord Hutton discussed Lord Devlin's statement in Rookes v Barnard concerning the valuable purpose served by an award of exemplary damages and concluded:
"[75] ... I think that a number of cases decided by the courts in Northern Ireland during the past 30 years of terrorist violence give support to the opinion of Lord Devlin in Rookes v Barnard [1964] AC 1129, 1223, 1226 that in certain cases the awarding of exemplary damages serves a valuable purpose in restraining the arbitrary and outrageous use of executive power and in vindicating the strength of the law. Members of the security forces seeking to combat terrorism face constant danger and have to carry out their duties in very stressful conditions. In such circumstances an individual soldier or police officer or prison officer may, on occasion, act in gross breach of discipline and commit an unlawful act which is oppressive or arbitrary and in such cases exemplary damages have been awarded.
...
[79] In my opinion the power to award exemplary damages in such cases serves to uphold and vindicate the rule of law because it makes clear that the courts will not tolerate such conduct. It serves to deter such actions in future as such awards will bring home to officers in command of individual units that discipline must be maintained at all times."
Lord Hutton's remarks, as was pointed out in New South Wales v Ibbett (at [52]), were to similar effect as Priestly JA's statement in Adams v Kennedy [2000] NSWCA 152; (2000) 49 NSWLR 78 (at [36]) when delivering the principal reasons:
"That figure [of exemplary damages] should indicate my view that the conduct of the [police officer] defendants was reprehensible, [and] mark the court's disapproval of it. The amount should also be such as to bring home to those officials of the State who are responsible for the overseeing of the police force that police officers must be trained and disciplined so that abuses of the kind that occurred in the present case do not happen."
After referring to the fact that a like approach to that of Priestley JA and Lord Hutton had been taken in Peeters v Canada (1993) 108 DLR (4th) 471, the plurality held ( New South Wales v Ibbett ( at [54])) that the approach taken in cases such as Adams and Peeters should be accepted.
Characterising Schofield's conduct
In finding that Schofield assaulted the appellants, the primary judge said:
"I am satisfied that the aggressor in the situation was ... Schofield. Without warning to either of the plaintiffs, or indeed the other transit officers present, he lunged at Sebastian, connecting with his throat and neck ... No physical violence at that point, or before, had been offered by either plaintiff. They were surrounded by transit officers ... I am of the view that the defendants were entitled to remove the plaintiffs from the railway property. I am of the view, however, that the second defendant, Transit Officer Schofield, assaulted both plaintiffs in the course of the removal process. There was no necessity for such a violent reaction. The plaintiffs were clearly outnumbered and it seems to me they could have been physically escorted and restrained without the necessity for the violence exhibited by the second defendant. "
Further, in considering both appellants' aggravated damages claims, the primary judge found that Schofield's conduct was "high-handed". His Honour found that the assault on Sebastian was "a frightening experience" which was "unnecessary and unjustified". Insofar as Christian's claim was concerned, his Honour found that Schofield's conduct in striking him in the face and slamming his head into the ground was "inappropriate and regarded as such by a number of transit officers".
Conduct which attracts the epithet "high-handed" falls within that class described as demonstrating a contumelious disregard of the plaintiff's rights which would attract an award of exemplary damages: Lamb v Cotogno (at 3); Fontin v Katapodis [1962] HCA 63; (1962) 108 CLR 177 (at 187) per Owen J; Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118 (at 130 ) per Taylor J; (at 146) per Menzies J; (at 161) per Owen J. It is not to point that the primary judge attached that description to Schofield's conduct when considering the aggravated damages claim. The same circumstances might justify either an award of exemplary or aggravated damages: Uren v John Fairfax & Sons Pty Ltd (at 130) per Taylor J; referred to with approval in New South Wales v Ibbett (at [33] - [34]). The same facts may be relevant to both heads of damage because of the different focus of each award: State of New South Wales v Ibbett (at [83]) per Spigelman CJ.
There was, in my view, ample evidence to conclude that Schofield's conduct in striking each appellant demonstrated conscious wrongdoing in contumelious disregard of another's rights. This may, in my view, be concluded from the primary judge's characterisation of him as the aggressor and his conduct as high-handed, unnecessary, unjustified and inappropriate. While the appellants had behaved objectionably throughout the evening in verbal exchanges with the respondents, they had not given any indication that they were moving to a physical confrontation. Their stance, as the primary judge found, did not reveal any act physical violence.
Schofield was in a position of power and, in my view, he abused that position. It is not, with respect, in my view sufficient to excuse his conduct on the basis that he "simply lost his temper": cf Whealey JA (at [228]). No doubt that was true of the defendant in Lamb v Cotogno but that did not deprive the plaintiff of an award of exemplary damages - although the plaintiff's conduct led to a reduction of the award in Fontin . Schofield was required to subordinate his power to his duty of service - no matter how unpalatable that notion may have been to him in the circumstances in which he found himself - and to restrain his anger. As the extracts from Kuddus (above) and Pettigrew v Northern Ireland Office [1990] NI 179 (below) demonstrate, courts in the United Kingdom have found persons in similar positions to Schofield with power and responsibility to ensure the keeping of the peace, liable for awards of exemplary damages for reacting violently in situations far more stressful I venture to say than that in which Schofield found himself on 13 March 2004. The community is entitled to expect those charged with the power of keeping the peace in public places exercise that power in a disciplined manner, notwithstanding their exposure to stressful behaviour from members of the public.
Prima facie, therefore, in my view each appellant was entitled to an award of exemplary damages in respect of Schofield's assault upon him.
I turn to consider whether that conclusion should be displaced by any of the maters of defeasance to which the primary judge referred: provocation by the appellants and criminal and/or disciplinary proceedings against Schofield.
Provocation
An award of exemplary damages may be mitigated or reduced if it is found that the plaintiff has provoked the assault and battery complained of: Fontin v Katapodis (at 184) per McTiernan J.
That a court should not readily conclude that a plaintiff has provoked a violent assault can be seen from two cases. In Lamb v Cotogno the High Court rejected a challenge to an award of exemplary damages notwithstanding that the defendant's assault of the plaintiff was a reaction to being pursued by the latter who was threatening to kill him.
In Kuddus , Lord Hutton illustrated the circumstances in which exemplary damages may be awarded notwithstanding considerable provocation by reference to his decision in Pettigrew v Northern Ireland Office as follows:
"77. In Pettigrew v Northern Ireland Office [1990] NI 179 there had been a mass escape of convicted terrorist prisoners from H Block 7 in the Maze Prison. In the course of the escape one prison officer died, one prison officer in H Block 7 was shot in the head and seriously wounded and other prison officers were injured. When the prisoners escaped from H Block 7 they left a number of prison officers tied up. It was clear that some of the prisoners who remained in H Block 7 had helped in varying degrees those who succeeded in escaping. After the escape the remaining prisoners in H Block 7 were moved to H Block 8.
78. The plaintiff, who was one of the remaining prisoners moved to H Block 8, brought an action against the Northern Ireland Office for damages for assault and battery by prison officers, alleging that in the course of the move he had been kicked and punched by prison officers and that prison officers who were dog-handlers had not restrained their dogs from nipping and biting him. In the High Court it was held that it was probable that prison officers, angered by the death of a colleague and the wounding of other colleagues in the course of the escape, had given vent to their anger by kicking or punching the plaintiff and that dog handlers had failed adequately to restrain their dogs. The plaintiff was awarded exemplary damages and I refer, if I may, to what I said in giving judgment, at pp 181-182:
'In this case I consider that the conduct of the dog handlers who deliberately did not restrain their dogs from nipping or biting the plaintiff and the conduct of the prison officers who kicked or punched the plaintiff was oppressive conduct by servants of the Government. Notwithstanding that the prison officers had real and understandable grounds for anger, it was their duty to restrain that anger, and in my opinion their conduct calls for an award of exemplary damages to mark the disapproval of the court, to teach that such conduct does not pay, and to act as a deterrent against this type of conduct against prisoners being repeated in the future.' " (emphasis added)
Kuddus illustrates, in my view, that a court should be cautious about rejecting a claim for exemplary damages or reducing such an award in cases where the conduct ascribed to the plaintiff is of the very sort the defendant should expect to encounter and be equipped to handle in a disciplined manner. To accede too readily to such a submission has the potential of deflecting attention from the conduct of the wrongdoer to that of the victim. In civil proceedings provocation can be taken into account, as it was here, when considering a claim for aggravated damages where, as I have said, the assessment is made from the point of view of the plaintiff.
In my view the verbal abuse in which the appellants had engaged to varying degrees during the exchanges which preceded the assaults did not constitute provocation which should bar or reduce any award of exemplary damages - or, to put it in a way which focuses on Schofield's conduct - the appellants' conduct does not detract from the conclusion that the Court should mark its disapproval of Schofield's conduct by such an award. The two earlier incidents in which Schofield had interacted with the appellants had both been resolved, as Whealy JA has found (at [137]), "relatively amicably". Schofield had been present at the exchange which preceded the assaults for about three minutes before attacking. I do not accept that the evidence supported a conclusion that the appellants' conduct provoked a violent assault of the nature in which Schofield engaged. Further, insofar as Christian is concerned, apart from possibly swearing at a time when the brothers were told to leave the station to finish their drinks - a direction with which he complied - there was no evidence, in my view, that he had engaged in any conduct of a belligerent let alone provocative nature. At the moment Schofield struck Christian, he appeared from the still photographs to step forward to remonstrate verbally as one would expect a brother to do. Some of the transit officers did not even observe that. Rather, for example, Transit Officer Sidhu said:
" ... Schofield suddenly extended his right arm towards the neck of Sebastian, following which Sebastian fell backwards. He then saw Sinha and Borchard remove Sebastian. He then saw Schofield move towards Christian and move his hand in a backward action. He did not see the hand connect with Christian, but he fell down, straight away."
Similarly, Transit Officer Singh said:
"Schofield said something to Sebastian. He heard Sebastian reply something like, 'You can't touch me, I'll kill you.' He said that about fifteen or twenty seconds after Sebastian spoke to Schofield, Schofield raised his right hand and moved it towards Sebastian's upper chest area, He said he saw Sebastian move 'a little bit back'. He said he saw Schofield slap Christian two or three times with the back of his hand. He said that Christian started bleeding from the inside of the lip just after that. . He said he told Schofield, in relation to him hitting Christian, 'Don't do that.' He said that Schofield told him that Christian was grabbing his leg."
It does not appear that Transit Officer Singh had observed anything which would warrant an assault on Christian. Other versions of the transit Officers statements are set out by Whealy JA (at [85]). None of them attribute belligerent behaviour to Christian. The highest it can be out in my view is that after Schofield struck his brother, Christian went to his brother's assistance and at some stage was hanging on to Schofield's leg (presumably to prevent him from attacking Sebastian again) - a position rendering him vulnerable to the assault Schofield then inflicted on him - rather than putting him in a position of threatening Schofield with harm. The primary judge did not regard Christian's conduct in hanging on to Schofield's leg as justifying Schofield's assault.
Criminal proceedings
It is apparent from Gray (at [46]) that if criminal proceedings are to be relied upon to defeat a claim for exemplary damages, the defendant must prove the criminal charges, alleged the same conduct as alleged in the civil proceedings. That is what happened in Gray by the tender of the certificate of conviction of the wrongdoer and the sentencing remarks relating to him as evidence of the truth of their contents .
I have already observed that there was no evidence about the criminal proceedings in relation to Schofield. However the appeal was conducted on the basis that the primary judge did not err in his recitation of the facts surrounding such proceedings, but did err by having regard to Schofield's prosecution itself and him being found guilty in the Local Court. The appellants complained that a prosecution per se is not a penalty and, further that even if Schofield was convicted in the Local Court, on appeal from the conviction in respect of Sebastian he was dealt with pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Under that provision the court does not proceed to a conviction even though it finds a person guilty of an offence. It has three options as to what order it may make in such circumstance. Nothing in the Court's papers indicates what course was taken in Schofield's case in this respect.
Insofar as Christian was concerned the primary judge concluded that Schofield's conviction was "quashed". Quite what that meant was not apparent. On an appeal to the District Court from a Local Court conviction, the District Court has a range of powers including setting aside the conviction: s 20(1)(a), Crimes (Appeal and Review) Act 2001 (NSW). I will assume that this is what the primary judge was referring to. If the conviction was set aside, prima facie it would appear that Schofield was acquitted - a conclusion which accords with Whealy JA's (at [234]). I shall return to the significance of this.
The plurality concluded in Gray (at [40]) that exemplary damages may not be awarded where, as in that case, the criminal law had been brought to bear upon the wrongdoer and substantial punishment inflicted. It was not difficult to conclude in Gray that substantial punishment had been inflicted upon the wrongdoer who had been convicted of causing grievous bodily harm with intent to cause grievous bodily harm to the plaintiff and was sentenced to seven years imprisonment. Moreover the Court was able to discern whether the facts which formed the basis for the wrongdoer's conviction and sentence were those relied on in the civil proceedings because, as i have said, the certificate of his conviction and the sentencing remarks relating to him were tendered by consent of the parties as evidence of the truth of their contents: Gray (at [2]) . Because there was no doubt about the severity of the wrongdoer's punishment, the plurality did not (at [44]) find it "necessary to decide whether the bar arises only where the punishment is 'substantial' or how close must be the similarity between the conduct that is the subject of the two proceedings." However it is clear that to raise the bar the plurality judgment contemplated (at [40]), it must be possible to determine the wrongdoer has suffered "substantial punishment" and that there is " 'substantial identity' between the conduct that is the subject of the criminal and civil proceedings": Gray (at [45]).
The plurality referred to, but did not determine, what may be the consequences in cases where the question whether "substantial punishment" had been imposed was debateable, or there was, in effect, a plea bargain or only a nominal penalty was imposed. Their Honours did not leave lower courts entirely in the dark on such matters however. They pointed out (at [46]) that:
"if criminal charges, alleging the same conduct as is alleged in a civil proceeding, have been brought and proved, it would be a most unusual case in which it was open to a civil court to conclude that the outcome of those criminal proceedings did not take sufficient account of the need to punish the offender and deter others from like conduct..." (emphasis added)
It is significant, in my view, that the plurality clearly regarded the fact the criminal charges were proven, without referring to any punishment imposed, as debarring a civil court save in exceptional circumstances from itself imposing an award of damages which was punitive in nature. Similar reasoning can be seen in the Privy Council's decision in W v W [1999] 2 NZLR 1, an appeal from the decision of the New Zealand Court of Appeal in Daniels v Thompson [1998] 3 NZLR 22, to which I refer below. In W v W (at 3), Lord Hoffman, in delivering the judgment of their Lordships said:
"... [T]here can be no doubt that allowing an action for exemplary damages to follow or precede a criminal punishment carries the risk that a person may be punished twice for the same offence. ... [P]rima facie it must be assumed that the criminal punishment was considered by the Court to be appropriate to the offence and the offender. To award exemplary damages at all would imply that the civil Court thought that the criminal punishment had been inadequate. There is an additional problem when a criminal prosecution follows a civil action. Logically, the criminal punishment should take into account the exemplary damages which have been awarded but there is an argument for regarding criminal proceedings in the name of the state as having primacy over a private action." (emphasis added)
The plurality also observed (at [46]) that "[o]ther considerations may well arise if relevant criminal proceedings ended in the accused's acquittal". Their Honours did not deal with those considerations but referred in a footnote to that paragraph to Daniels v Thompson (at 50 - 52) per Richardson P, Gault, Henry and Keith JJ; and to Thomas J's dissenting reasons (at 77).
Daniels v Thompson concerned the question whether an action for exemplary damages could lie where the allegations forming the basis of a claim for exemplary damages constituted criminal offending. In particular, the court considered whether an action for exemplary damages was barred where the defendant had already been convicted and punished in respect of the same conduct in criminal proceedings or had been acquitted in the criminal jurisdiction of a charge arising from the acts which formed the basis of the claim or where there was the commencement of, but no concluded, criminal prosecution.
Relevantly, the Court held (Richardson P, Gault, Henry and Keith JJ, Thomas J dissenting) that that a claim for exemplary damages should be struck out as an abuse of process if the defendant had been acquitted and essentially the same acts which constituted the criminal offending were relied upon in the civil proceedings. The Court undertook an extensive review of authorities in Australia, the United Kingdom (where the right to exemplary damages was substantially curtailed by the decision in Rookes v Barnard ), the United States and Canada. The plurality concluded (at 45) that no clear common line of authority was discernible and that there was a divergence of approach, as to both result and rationale.
Insofar as the consequences of an acquittal were concerned, the plurality regarded the issue as "not free from difficulty", but concluded that it seemed "that where the criminal process has exonerated a person from alleged offending, then it becomes undesirable to allow what are substantially the same issues of fact to be relitigated for the sole purpose of exacting a punishment for their commission." Such relitigation would, in the plurality's view, offend the finality principle, and was inconsistent with the recognised purposes of the administration of justice: Daniels v Thompson (at 51).
As Thomas J wrote in his dissenting reasons (at 55 - 56), the decision of the plurality was reached largely as a matter of public policy by according "[t]he role of the state in dealing with criminal conduct ... primacy, which is absolute where the defendant has been convicted, and effectively exclusive where he or she has been acquitted or could be liable to a criminal prosecution." His Honour preferred "a less radical approach" which, while accepting that an award of exemplary damages would be exceptional, would not impose an absolute bar on such a claim where the defendant has been convicted of an offence involving the same conduct, or which was part of the same conduct but would take into account the defendant's punishment in the criminal proceeding in determining whether an award of exemplary damages was appropriate. His Honour was reinforced in his view by the fact that it accorded with law reform commission reports completed after extensive consultation and review of authority: the Ontario Law Reform Commission, Report on Exemplary Damages (1991) and the Law Commission for England and Wales Consultation Paper no 132, Aggravated, Exemplary and Restitutionary Damages: A Consultation Paper , (1993) (LCCP No 132) which led to the report of the Law Commission for England and Wales, Aggravated, Exemplary and Restitutionary Damages, (LAW COM No 247).
An appeal to the Privy Council from the decision in Daniels v Thompson was dismissed ( W v W ) in part because the Board took the view it would not substitute its own views (if different) on a matter of the policy of the law in a particular country. However the Board also considered the effect of an acquittal because the appellant submitted that the Court of Appeal's decision in that respect displayed an error of principle. In this respect the Board said (at 5):
" It was argued that in the case of an acquittal, which may have been on technical grounds, there can be no question of double punishment. The accused has not been punished in the criminal Court at all. This is of course true, but Their Lordships consider that a need for consistency leads inexorably to the conclusion that an acquittal should also bar the civil remedy for exemplary damages. The decision to bar the remedy after conviction and punishment is plainly a matter of policy and the consistent application of such a policy requires that it should apply irrespective of the severity or lightness of the punishment imposed by the criminal Court. In each case, it will be the punishment which that Court considered appropriate to the offence and the offender and it should not be reconsidered by another Court. This must be the case even when the sentence is an absolute discharge. Having got to that point, Their Lordships consider that it would be illogical to bar an action against an accused who has been convicted and discharged but not against an accused who has been acquitted. Their Lordships think it would be impractical in this context to try to distinguish between technical acquittals and acquittals on the merits."
This Court considered Daniels v Thompson in Niven v SS [2006] NSWCA 338. In that case the respondent commenced civil proceedings against the appellant alleging that when he was approximately 13 years old and in Year 7 at Bombala State High School, he was indecently assaulted several times by the appellant at his house in Bombala over a period of time. After those proceedings were commenced the appellant was charged with some 19 offences with respect to the respondent alleged to have taken place between 1 May 1997 and 30 September 1997, of which five were for aggravated sexual offence pursuant to s 61J(1) of the Crimes Act 1900 (NSW), three for aggravated indecent assault pursuant to s 61M(1) of the same Act and one for incite person aged under 16 years to commit an act of indecency pursuant to s 61N(1) of that Act (the criminal proceedings). The assaults the subject of the criminal proceedings were relevantly identical to those the subject of the civil proceedings: Niven (at [6]).
The criminal proceedings had not been listed for hearing at the time the civil proceedings came on for hearing. The trial judge rejected an application for a stay of the civil proceedings until after the completion of the committal hearing. He then heard the case, accepted the respondent's evidence that he had been sexually assaulted by the appellant on at least five occasions and assessed damages in the sum of $386,000 which included an award of $60,000 by way of exemplary damages.
On appeal the appellant submitted that the award for exemplary damages was bad in law, being contrary to the principle that exemplary damages should not be awarded if the defendant has already been punished in criminal proceedings - a principle it was submitted that should be extended to situations where the defendant was facing criminal prosecution and hence the possibility of punishment: Niven (at [46]).
In the course of the appeal in Niven , it emerged that the appellant had been acquitted in the criminal proceedings of the charges which concerned his conduct in respect of the respondent. He submitted that the Court should apply the second principle established in Daniels and strike out as an abuse of process the claim for exemplary damages having regard to his acquittal of essentially the same conduct in a criminal proceeding - even though the acquittal occurred after the conclusion of the civil trial: see Niven (at [60]).
Tobias JA (with whom Beazley and Giles JJA agreed) rejected that submission. His Honour was not prepared to accede to the appellant's submission "that this Court should, as a matter of policy, apply by analogy the decision of the New Zealand Court of Appeal in Daniels as affirmed by the Privy Council in W v W to strike out or dismiss a claim for exemplary damages where the appellant has been acquitted of the charges preferred against him subsequent to the conclusion of the civil trial at which exemplary damages were awarded." In his Honour's view "the appellant having been acquitted of the charges preferred against him in the criminal proceedings, no question of double punishment [arose] and [t]here is no possibility of any punishment" : Niven (at [63]).
Tobias JA regarded the whole tenor of the High Court's approach in Gray to the award of exemplary damages as consistent with his conclusion, even though the Court in Gray "was at one with the New Zealand Court of Appeal in Daniels in concluding that exemplary damages should not be awarded in a civil trial where the defendant, in a preceding criminal trial, had had inflicted upon him or her 'substantial punishment'" (at [64]). He noted that "[e]ven in Gray , the Court left for another occasion the meaning of 'substantial punishment' particularly if only a nominal penalty for reasons personal to the accused or other reasons had been imposed in the criminal proceedings."
Niven is a recent decision of this Court from which I would not depart. I do not regard it as "plainly wrong" or even erroneous: Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504. On that basis, and on the premise that Schofield was acquitted in respect of the assault on Christian, the fact of the criminal proceedings against Schofield was irrelevant to Christian's claim for exemplary damages.
It is not necessary to reach a final decision concerning the effect of an acquittal on Christian's claim for exemplary damages. The question was not really canvassed on appeal - one reason being the uncertainty surrounding the effect of the "quashing" of Schofield's conviction in respect of Christian. As is apparent from Daniels , the issue is fraught with difficult decisions of policy and conflicting authority in the common law world. It is a question the High Court should resolve: cf Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 (at [134]).
The relevance of any criminal proceedings for both appellants' claims can, in my view, be resolved on a factual basis. The unsatisfactory position concerning the evidence about any criminal proceedings against Schofield means the Court cannot determine whether there was "substantial identity" between the conduct that may have been the subject of the criminal and civil proceedings: Gray (at [45]). The primary judge merely recorded that Schofield was "prosecuted for assault on both plaintiffs" without any reference to the factual basis for the charges. As the plurality made clear from their reference to the fact that the "substantial identity" issue "may lead to difficult questions of fact and degree", this is a relevant factual inquiry. It was not undertaken in this case. In my view this means it is not open to the Court to conclude that any criminal charges against Schofield in respect of either Sebastian or Christian alleged "the same conduct" as was alleged in the present proceedings: Gray (at [46]). Nor is the Court aware whether Schofield was punished at all. The primary judge may have been aware from experience which entitled him to take judicial notice of the fact that a s 10 order remains on a person's record, however it is not apparent that that would take the significance of a conclusion as to a conviction which did not proceed to a finding of guilt any further.
In those circumstances I would not regard whatever criminal proceedings were taken against Schofield as militating against an award of exemplary damages.
Disciplinary proceedings
As I have said, there was evidence that Schofield had been subjected suspension with pay pending an investigation of the incident. There was no evidence that there was any follow-up on the recommendation that disciplinary action be considered following an interview with Schofield. There was no evidence that he had suffered any financial penalty, been reduced in rank, or dismissed from RailCorp in a way which might warrant the conclusion that he had been "punished" albeit in a civil context: cf Police Service Board v Morris [1985] HCA 9; (1985) 156 CLR 397 (at 404).
In my view there was no evidence of disciplinary action which would affect any award of exemplary damages.
Quantum of award
The principles as to the quantum of an award of exemplary damages were conveniently collected in James v Hill [2004] NSWCA 301 (at [66] ff) per Tobias JA (Sheller and Hodgson JJA agreeing). Relevantly (at [69]) the "objectives of an award of exemplary damages are to punish the wrongdoer, deter him and others from committing like conduct again, to provide vindication to the victim and to denounce the wrongdoer's behaviour."
If exemplary damages are to fulfil their threefold purpose, they must not merely irritate, they must sting; there is "no necessary proportionality" between the amount awarded as compensation for the damage suffered by the plaintiff and the amount of exemplary damages awarded against the defendant: Harris v Digital Pulse Pty Limited [2003] NSWCA 10; (2003) 56 NSWLR 298 (at [254]) per Heydon JA; cited in Amalgamated Television Services Pty Ltd v Marsden (No 2) (2003) 57 NSWCA 338 (at [23]); James v Hill (at [84]).
Having regard to these principles, and bearing in mind the focus of the award is the wrongdoer's conduct, I would award each appellant $10,000 by way of exemplary damages.
Aggravated damages
The primary judge awarded the appellants aggravated damages but took into consideration what he said "could be described as the provocative behaviour of the plaintiffs and their belligerence in assessing such an award...". The appellants challenged that factual conclusion. For the reasons I have given, that submission should be accepted.
As Whealy JA has explained (at [235]) aggravated damages may be reduced if the plaintiff's own behaviour may have brought the attack on himself. This proposition is drawn from Fontin v Katapodis and appears to depend on understanding the references in that case to exemplary damages included aggravated damages. That is because it was only in Rookes v Barnard that the distinction between aggravated and exemplary damages was explained and accepted in Uren v John Fairfax & Sons Pty Ltd : see Halsbury's, Laws of Australia , LexisNexis at [135-605].
As I have explained, in my view the appellants' conduct was not responsible for the commission of the tortious act: Fontin v Katapodis (at 187) per Owen J (with whom Dixon CJ agreed). Accordingly I would increase each appellant's award of aggravated damages to $7,500.
Conclusion
The effect of my reasons is that Sebastian's damages should be increased to $22,500 and Christian's to $25,000. These amounts exceed in total the amounts in the Offers of Compromise upon which the primary judge based his decision to award RailCorp indemnity costs from 16 October 2007 and the amounts in RailCorp's second offers of compromise of 6 February 2008. I do not understand it to have been suggested that the offer of $100,000 plus costs made on the first day of the trial apparently as a joint offer was relied upon in a Calderbank sense so as to entitle RailCorp to indemnity costs. However the exemplary damages component of the damages should only be awarded against Schofield, although they are damages RailCorp accepted in this Court that it would pay: appeal transcript, 14 February 2011, at 31. That means, however, that the verdict against RailCorp in respect of Sebastian would be less than the offer of compromise in respect of him made on 16 October 2007, but still more than that made to Christian. The verdict against Schofield would be less than the offers. In those circumstances and also because RailCorp said in its written submission it wished to be heard on the appropriate basis on which costs should be ordered, I would propose to reserve the position as to both the question of the costs of the trial and the appeal. As, however, this is a dissenting judgment, I have not made any directions about service of submissions addressing the issues raised by my reasons.
I propose the following orders:
(1) Appeal allowed in part.
(2) Set aside the judgment for $10,000 in favour of the first appellant and in lieu thereof order that there be a verdict against the first respondent in the amount of $12,500 and in the amount of $22,000 against the second respondent.
(3) Set aside the judgment for $12,000 in favour of the second appellant and in lieu thereof order that there be a verdict against the first respondent in the amount of $15,000 and further in the amount of $25,000 against the second respondent.
(4) Costs of the trial and appeal reserved.
(5) Parties to calculate the interest component of the damages.
WHEALY JA : Two brothers, Sebastian and Christian Whitbread, were involved in an incident at Gosford Railway Station in the early hours of the morning of Saturday 13 March 2004. The incident involved a confrontation between the two brothers and a number of State Rail transit officers. The brothers had been drinking heavily for some hours and undoubtedly were well affected by alcohol. In the upshot, the brothers were arrested and taken to Gosford Police Station by local police where they were detained for some hours. Infringement notices were issued to the brothers upon their release, alleging breaches of railway regulations. The breaches alleged misconduct of one kind or another on railway land. Later, however, these notices were withdrawn and one of the transit officers, Andrew Schofield, was prosecuted for assaults committed against the brothers. They, in turn, brought proceedings in the District Court of New South Wales seeking damages against Rail Corporation New South Wales ("RailCorp") and a number of the transit officers, including Schofield. Each brother was the plaintiff in separate proceedings seeking damages for assault and battery, false imprisonment and injurious falsehood. Each brother claimed general damages, aggravated damages, exemplary damages, interest and costs.
The two proceedings were heard together by O'Connor DCJ during early February 2008. On 14 October 2008, his Honour delivered his final judgment on liability and damages. He found in favour of each plaintiff on the assault count, insofar as it related to the actions of Schofield. RailCorp had agreed that, in the event of a finding against any of its employees, it would accept a finding against it based on vicarious liability. Consequently, the judge awarded $10,000 damages to Sebastian against RailCorp and Schofield. Christian was awarded $12,000 against the same two defendants. The trial judge, however, held against the brothers in relation to the false imprisonment and injurious falsehood claims. Each of the remaining employees who had been unsuccessfully sued received a verdict in his favour.
The trial judge gave a second decision on 17 November 2008. This related to the costs of the proceedings. The position had been complicated by the fact that there had been offers of compromise made on two separate occasions during the proceedings. Ultimately, RailCorp and Schofield were ordered to pay Sebastian's costs on an ordinary basis up to 17 October 2007. However, Sebastian was ordered to pay those two defendants' costs on an indemnity basis from 17 October 2007. Similarly, RailCorp and Schofield were ordered to pay Christian's costs on an ordinary basis up to 7 February 2008. Christian, however, was ordered to pay those two defendants' costs on an indemnity basis from 11am on 7 February 2008.
His Honour, in the exercise of his discretion, declined to make a Bullock or Sanderson order in relation to the costs awarded against the plaintiffs in favour of the successful transit officers.
Each brother sought leave to appeal from the decisions of the trial judge. Leave was granted by this Court on 20 November 2009. Thereafter, Amended Notices of Appeal were filed and the matter was ultimately prepared for hearing. For reasons that are not necessary to detail, there are now only four respondents to Sebastian's appeal, they being RailCorp, Andrew Schofield, John Borchard and Christopher Sanderson. In Christian's appeal, the remaining respondents, in addition to RailCorp, are Schofield, Borchard and Sanderson, together with another employee, Geoffrey Blight.
The appeals were heard together on 14 and 15 February 2011. Maurice Neil QC and Mark Thompson appeared for each appellant. The respondents were represented by David Hooke SC and David Sulan. At the conclusion of the hearing, the court reserved its decision.
An examination of the events of 13 March 2004
Many of the circumstances surrounding the incident at Gosford Railway Station are not in dispute. Indeed, a large number of the facts found by the trial judge are not now in dispute. That said, there are some 10 to 12 factual matters where it will be necessary for this Court to determine whether the particular findings were open, available and justified on the evidence. Subject to the resolution of those matters, I will state briefly my general understanding of the facts and, in the context of the actual confrontation at the railway station and its immediate aftermath, refer extensively to the trial judge's description and analysis of those particular factual matters. Throughout this narrative, and generally, I will for convenience refer to the plaintiffs by their first names. I will again for convenience, refer to the relevant transit officers simply by reference to their respective surnames.
The origins of the incident can be traced back to events in the early evening of Friday 12 March 2004. The two brothers went to the Wyong RSL Club to watch a rugby league game. They arrived roughly between 6:30pm and 7:00pm, and left about 10:00pm or 10:30pm. Sebastian, who was 23 years of age at the time, had about seven schooners of beer while he was at the club. Christian, who was some three years younger, said that, in general terms, he matched his brother "drink for drink" at the club, even though he, Christian, was a slower drinker than his older brother.
The brothers then left the RSL Club and caught a train from Wyong to Gosford. There they went to a nightclub called "Joe's Garage", played pool, drank some more and danced. They also played the poker machines and, it seems, between them they won about three hundred and fifty dollars. At the club, they drank a variety of mixed drinks. Sebastian thought he had had fifteen to twenty alcoholic drinks over the whole night. He was later to put his level of intoxication as "about a 5 out of 10". Christian had about twelve to fifteen drinks at the club and he was later to agree that his estimate of his level of intoxication at the time of the incident was that he was "either a 9 or a 10 out of 10". There is no doubt that they were both significantly affected by alcohol.
Christian had to be at work at McDonald's at Wyong on the Saturday morning at 6:00am. The brothers left the nightclub and arrived at the Gosford Railway Station some time between 3:30am and 4:00am. It seems they had determined that they would catch a train from Gosford back to their home suburb of Wyong. Sebastian had $300 in notes in his pocket together with some $7 or $8 dollars in small change. It also appears, from the evidence that Sebastian was later to give, that when the two men arrived at the railway station, Sebastian, at least, intended to travel on the train without paying for a ticket. This was so because he realised at the time that he only had, in general terms, fifty dollar notes on his person, and that would not enable him to get change from the ticket machine at the station. He also explained that, when the two men had travelled from Wyong to Gosford the night before, they did not buy a return ticket because they "didn't have enough money at that stage". Later, presumably at Gosford, Sebastian used an ATM to obtain an amount of cash for the purpose of funding the night out at Gosford.
Gosford Station straddles the railway line which proceeds, more or less, in a north-south direction. Mann Street is on the east side of the railway station, with an entry for pedestrians from the street. On the western side of the station is Showground Road. Again, there are facilities for pedestrians to enter the railway concourse from that western side. At concourse level there are offices, toilets, amenities, timetable details and the barriers. The platform may be reached by stairs and lifts, located on the eastern side of the barriers. These provided access to the lower level where the railway platforms are located.
The two men approached the railway station from the Mann Street side. They were carrying drinks with them when they arrived at the railway concourse. They were first spoken to by transit officers and then later were spoken to by a security guard. Requests were made that they take their drinks off the railway premises. They complied with this direction, although Sebastian said to the guard, "You go your fucking way and I'll go my fucking way." The brothers took their drinks out on to the Showground Road side of the station, that is on the western side of the railway complex. The brothers were also spoken to by some transit officers about the issue, and they remained out there drinking for a time until they had finished their drinks. The three transit officers involved in this discussion appeared to have been Schofield, Sinha and Jimenez. The empty bottles were left on the outside fence, near where the brothers had been drinking. When they came back into the concourse, it appears that Sebastian was smoking a cigarette. He was spoken to by Schofield, following which the cigarette was either put out or finished outside the concourse area.
I turn now to the findings of fact made by the trial judge. His Honour dealt with the events I have just described, and the situation which then developed. The extract commences as follows:
"From the statements contained in exhibit H and the evidence of the plaintiffs there was little controversy about the following factual matters. The plaintiffs had attended a local nightclub at Gosford and other places previous to that where a considerable amount of intoxicating liquor was consumed. By the time they arrived at Gosford railway station they were well affected by alcohol and were continuing to drink from bottles thought to be Bacardi Breezers.
They were observed as they entered the station by Transit Officers Sidhu and Singh. They were told to finish their drinks outside and then to enter the station. They complied with this direction saying, 'Yeah, yeah, fucking.'
The plaintiffs were seen sitting on a seat outside a paper shop drinking alcohol on railway property at which time they were spoken to by a guard, Michael Riley, who told them to take their drinks off the premises. They complied with this direction, albeit unhappily, Sebastian saying, 'You go your fucking way and I'll go my fucking way.'
They then moved to the Showground Road exit and finished their drinks, (exhibit H, attachment 7). This incident was witnessed by Lynette Truscott, who occupied the position of Customer Service Assistant at Gosford station.
After the incident she spoke to the guard, telling him, 'Don't worry about them, they're full of alcohol.' Ms Truscott then went to the meal room. She said there were approximately eleven transit officers there. She warned them to be careful and she said one of the persons she had seen maybe looking for a 'blue'.
Andrew Schofield, the second defendant, Kenneth Sinha, the sixth defendant, Melchor Jimenez, the fifth defendant, and Transit Officer Sinha on their patrol, observed the plaintiff Sebastian smoking a cigarette (exhibit H 16 paras 8-9), This observation was at the Showground Road exit. Schofield asked what they were doing, to which they responded they were having a drink and waiting to catch a train (exhibit H attachment 19 paras 5-6). They then entered the concourse at Gosford station. Sebastian was smoking a cigarette.
Schofield directed him to put the cigarette out, with which direction he complied (exhibit H attachment 19, paras 5-7).
It would appear to be common ground that there is no manned ticket booth open for the purchase of a ticket, no doubt having regard to the hour. There was no dispute that the plaintiffs had sufficient funds to purchase tickets if a ticket booth was manned, however most of their currency was in fifty dollar notes.
Police records reveal that Sebastian had three hundred and seven dollars and ninety cents in his possession when taken into custody at Gosford police station. Seven dollars and ninety cents, it seems, was sufficient to purchase at least one ticket to Wyong at the automatic vending machine, but perhaps insufficient for two tickets.
Sebastian's evidence was that on past occasions when confronted with a similar situation they had caught a train and paid a fine on termination of their journey.
The plaintiffs entered the station and walked through the barriers leading to the platforms, where they were confronted by TO Sanderson (the fourth defendant) , who asked for their tickets, (exhibit H attachment 15). This episode is captured on CCTV (exhibit A).
The CCTV demonstrates that the plaintiffs then withdrew behind the barriers. A discussion then ensued between the plaintiffs, and Transit Officer Sanderson, Transit Officer John Borchard, the third defendant and Transit Officer Geoffrey Blight, the seventh defendant were present. Transit Officer Sidhu and Transit Officer Singh were on the concourse, but a little further away. Transit Officer Sanderson recorded the conversation with the plaintiffs in his notebook. A typescript of the alleged conversation is included in exhibit H, in attachment 15. The conversation is described in the following terms:
Sanderson: 'Have you got tickets?'
Sebastian: 'There's nowhere to buy a fucking ticket.'
Sanderson: 'There are ticket machines out there.'
Sebastian: 'Fucking where? You get me a fucking machine that gives me change and I'll buy a ticket.'
Sanderson: 'The machines give change.'
Sebastian: 'Not the change I fucking want, I don't have to buy a ticket if the machine doesn't give me change.'
Sanderson: 'It's up to you to make sure you have the money for the machine. State Rail has the responsibility of supplying machines but no responsibility for supplying the money.'
Sebastian: 'Well can't fucking buy a ticket. I'm going without a ticket.'
Sanderson: 'You aren't catching a train.'
Sebastian: 'Yes, I fucking am and what are you going to do about it, what are you going to do to stop me.'
Sanderson (to Christian): 'Mate you can go and by [sic] a ticket and catch a train if you want but he's not going down there.'
Christian: 'I'm not going anywhere, he's my brother.'
Sanderson: 'I'm an authorised officer, I'm giving you a direction to leave the station under the Rail Safety Act. I'm directing you to leave due to your offensive language.'
Sebastian: 'You can't fucking make me.'
Sanderson: 'Yes, I can. I'm giving you another direction, to leave the station. It's an offence not to comply with that direction. If you don't leave the station we'll have to grab you and take you out.'
There is no dispute that Sebastian used the word 'fucking' on several occasions and that he was being directed to leave the station, and that both he and his brother refused to do so.
As mentioned, it is not disputed that they were both intoxicated. Although Mr Thompson, in his submission, did not accept the accuracy of Mr Sanderson's account of the conversation, I accept on the balance of probabilities that fairly describes the exchange, bearing in mind it was contemporaneously recorded in his notebook and reflects the mood and the essential elements of the dispute.
Also, no doubt as a result of the plaintiffs' intoxicated state, their memory of the details is somewhat vague.
The ensuing scene is captured on CCTV, by which time the second defendant Schofield has arrived. The plaintiffs are then in the company of Schofield, Sanderson, Borchard, Blight and Sinha. Jimenez is seen to be leaning against the wall.
There is nothing in the demeanour of those present to suggest imminent violence. Transit Officer Sanderson describes the subsequent events in the following terms. I have substituted 'Sebastian' for 'POI1' and 'Christian' for 'POI2', as it appears in his statement:
Schofield: 'Mate, what's happening. I just spoke to you guys out there, you guys were going to behave yourselves.' Schofield said something else to Sebastian, then Sebastian became more aggressive and raised his voice at Schofield. Schofield said, 'Don't yell at me,' Then Sebastian said, 'I will fucking smash you.' Schofield then appeared to lunge towards Sebastian, striking him with his right hand to the male's chest or neck area. This caused the male to stumble backwards. STO Sinha and TO Bouchard then took hold of Sebastian and removed him from the station. Christian went to the ground and took hold of Schofield's leg. Schofield struck Christian with the back of his hand. Whilst the male had hold of Schofield's leg Schofield grabbed Christian's head with both hands and appeared to slam it into the ground. It released the grip Christian had on Schofield's leg. Schofield, Blight and I then carried Christian out."
The trial judge then provided a summary of the relevant portions of the statements of a number of the transit officers. It should be noted that, unusually, all these statements had been tendered by the plaintiffs in their respective cases. For that reason, it became unnecessary for the defendants to call any of the officers. These statements came, inter alia, from Sidhu, Sinha, Jimenez, Singh, Borchard and Blight. I shall reproduce his Honour's remarks about the contents of these statements in full:
"Transit Officer Sidhu described the events leading to the removal of the plaintiffs from the station. He said Schofield stood near Sanderson and started talking to the boys. He folded his arms. He said Schofield suddenly extended his right arm towards the neck of Sebastian, following which Sebastian fell backwards. He then saw Sinha and Borchard remove Sebastian. He then saw Schofield move towards Christian and move his hand in a backward action. He did not see the hand connect with Christian, but he fell down, straight away. In a matter of seconds he said he saw blood coming from Christian's lip, when being removed by Sanderson, Jimenez and Blight.
Transit Officer Sinha provided a statement in which he said that Schofield got involved in the discussion with the males who were still swearing. He heard one of them say, 'There's no fucking way I'm leaving the station.' He heard Sanderson give the males directions to leave the station, however he said, 'The males continued to swear at the transit officers present'. He said he heard Schofield say something like, 'I've already told you boys to behave', but they continued to swear at him. He said he saw Schofield suddenly grab one of the males around the upper chest and neck area with his right hand and that the male fell backwards towards the glassed area.
Transit Officer Jimenez provided a statement in which he said that he heard Sanderson giving directions to the males to leave the station and that they refused to comply with these directions. He said he heard Sebastian say something like , 'I will kill you fucking cunts, I'm not leaving the station.' He said this went on for five to seven minutes when suddenly Schofield extended his right arm towards Sebastian and pushed him below the neck area, causing him to move back a little. He said a scuffle then broke out and he did not see what happened to Sebastian. He said that Christian was on the ground and hanging onto Schofield's leg and that Schofield gave him a backhand on his face. He said he later saw blood on Christian's teeth.
Transit Officer Singh provided a statement in which he said that Schofield joined the group consisting of Sanderson, Sinha, Borchard and Blight . Transit Officer Sinha and Melchor were standing a little bit away from that group. He said Sanderson, Borchard and Blight were talking to the males but were getting nowhere. He said Schofield said something to Sebastian. He heard Sebastian reply something like, 'You can't touch me, I'll kill you.' He said that about fifteen or twenty seconds after Sebastian spoke to Schofield, Schofield raised his right hand and moved it towards Sebastian's upper chest area, He said he saw Sebastian move 'a little bit back'. He said he saw Schofield slap Christian two or three times with the back of his hand. He said that Christian started bleeding from the inside of the lip just after that. He said he told Schofield, in relation to him hitting Christian, 'Don't do that.' He said that Schofield told him that Christian was grabbing his leg. Transit Officer Borchard provided a statement in which he said he heard Sanderson giving a direction to the plaintiff in the following terms, 'I am giving you a direction to leave, leave the station now.' Sebastian replied, 'I'm not fucking leaving, what are you going to do about it?' He said Sanderson replied, 'If you don't leave we will remove you.' He said Sebastian became more aggressive, speaking louder and louder. He said about this time Schofield arrived. He heard him say, 'I've already spoken to you two, you were going to behave yourselves.' He said he heard Sebastian say, 'I'm going to fucking smash you.' He said Schofield then pushed Sebastian away from himself with his right hand making contact with Sebastian's upper chest and throat, causing him to stumble backwards towards the glass or wall railing.
Transit Officer Blight provided a statement. He heard Sanderson give a direction to both males to leave the station. He said that Sebastian responded aggressively on hearing this and started swearing again, stating that he was not going to leave 'the fucking station', and was going to get the train. He said Schofield arrived and said, 'What's going on here, I told you boys to behave yourself. You are going to have to leave the station.' He said that Sebastian started abusing him, 'giving him a mouthful'. He said he then saw Schofield lunge out with an open hand towards the neck area of Sebastian. He said that Sebastian fell backwards to the ground, at which point Christian tried to help his brother. He said in the confusion Sebastian fell on his back and he and Sanderson told him to stay down. He said that Christian grabbed Schofield around his lower leg and that Schofield told him to let go three times. After the third time Schofield hit Christian in the face area with an open backhand in what he described as a defensive action and he noticed blood on Christian's general mouth area after he was struck."
I should interpolate that, during the course of this analysis, the trial judge had responded to submissions to the effect that there were aspects of Sanderson's statement, and other material, that suggested unreliability. His Honour examined this submission carefully and came to the conclusion that the ultimate version provided by Sanderson in his statement was reliable and was generally consistent with the observations of others. In that context, his Honour also made findings that were critical of the reliability of the evidence given by the brothers. He added:
"Sebastian's evidence in relation to this event is unreliable. In his evidence in the Local Court he said he was attacked from behind, changing his evidence when he observed the CCTV. Christian has little memory of the events at all before being ejected from the station."
After examining the statements of the individual transit officers, his Honour then addressed the important issue as to whether or not Schofield had been guilty of assaulting the brothers. In this part of the analysis, his Honour said:
"The CCTV does not reveal any physical act of aggression by either plaintiff before Schofield lunged at Sebastian. There is no suggestion in any of the statements in exhibit H that either plaintiff punched or struck any of the transit officers."
The trial judge added:
"I accept that Sebastian, in the course of his argument with Schofield, had frequent recourse to the word 'fucking' and it was during the course of this argument he insisted on his right to catch the train and refused to leave the station. He was supported in this approach by his brother Christian and although Christian may have been less verbally abusive, he was not going to leave the station and was equally determined to catch a train, albeit without a ticket."
In relation to the circumstances leading to the removal and ultimate arrest, his Honour made the following findings of fact:
"Borchard and Sinha then grabbed Sebastian by each taking an arm and escorting him out of the station. Sinha said that Sebastian put up some resistance as they walked out and on a couple of occasions they had to drag him (exhibit H tab 19). Borchard said he and Sinha, 'walked him down the ramp leading left from the western exit and onto the footpath' (exhibit H, tab 21).
Once out on Showground Road the CCTV footage demonstrates Sebastian being dragged onto the public pathway and then pushed in the direction of the roadway. The statements in exhibit H suggest this was done by Sinha and shortly thereafter by Borchard, and I so find. Sebastian is seen attempting to return to the station. This is confirmed by the video (exhibit A). Borchard described this incident in the following terms:
On the issue of the significance of criminal punishment, the plurality judgment emphatically endorsed the proposition that, where the criminal law has been brought to bear upon the wrongdoer and substantial punishment inflicted upon him, the consequence is that exemplary damages may not be awarded in the civil proceedings. In their Honours' view, the infliction of substantial punishment (for what was substantially the same conduct as the conduct the subject of the civil proceedings) is a complete bar to the award. It is not a matter of discretion depending on the facts and circumstances in the case. Two reasons were given for this. First, the purpose for the awarding of exemplary damages will have been wholly met if substantial punishment is extracted by the criminal law; second, considerations of double punishment would otherwise arise.
In the case then under consideration, the High Court determined that imprisonment for seven years constituted substantial punishment and, as this had been imposed on the wrongdoer for the conduct the subject of the civil action, exemplary damages could not be awarded. The plurality judgment left open the situation where a wrongdoer had been found guilty, but where a financial or non-custodial penalty had been prescribed. It left open also the situation where a wrongdoer has been brought before the criminal courts and acquitted. Equally, it left open the situation where there might properly arise a real issue as to whether the punishment inflicted upon a wrongdoer was adequate or otherwise. The plurality judgment, in each of those situations, did not conclude one way or the other whether the imposition of the criminal law would be a bar to exemplary damages.
Kirby J (in a separate decision) thought that the issue was one of discretion. At 33-34, Kirby J said:
"I accept that describing the process involved as "discretionary" may encourage a certain looseness of thinking. However, to some extent that is inherent in the interaction of criminal punishment and civil damages which are described as being in part punitive. It is a discretion to be exercised in accordance with principle. If one of the reasons for awarding exemplary damages is the punishment of the wrongdoer in an emphatic and public way, it is obviously relevant to take into account the fact that this may already have been done or is likely to follow. Once exemplary damages are seen as supplementary to compensatory damages (an addition that may or may not be appropriate in the particular case) the fact that a plaintiff may lose them (or have them reduced by reference to the actions of others in the criminal courts) does no offence to reason. The primary judge's description of exemplary damages as discretionary was therefore correct."
In my opinion, contrary to Mr Neil's submission, there is nothing in the plurality judgment that suggests that, where substantial punishment (for example, imprisonment) has not been imposed, the trial court is precluded from taking into account, as a relevant factor in determining whether exemplary damages should be awarded and, if so, the extent of those damages, the fact that a wrongdoer has been subjected to the rigours of the criminal justice system for the same conduct as is involved in the civil case. Kirby J's separate decision plainly envisages that such an approach is permissible.
In other words, the High Court's decision in Gray is authority for the proposition that, where substantial punishment has been imposed by the criminal justice system for the same conduct as is involved in the civil proceedings, this will operate as a complete bar to the grant of exemplary damages. Where "substantial punishment" has not been imposed, or where it is arguable that it has not, there is no reason why the trial judge cannot have some regard to the nature of those proceedings and their outcome as a factor, amongst others, in determining whether or not to award exemplary damages.
In the present appeals, I can discern no error in the trial judge's approach. As I have said earlier, his Honour's primary reasoning appears to proceed on the basis that the conduct of Schofield itself was not such that it warranted an award of exemplary damages. That, I think, is clear from the structure of his Honour's judgment.
Against the background of that finding, his Honour then took into account three further matters. These he regarded as "also of relevance". They were, first, the abusive and belligerent behaviour of the plaintiffs themselves, and second, the nature of the criminal proceedings brought against Schofield. A third matter was the disciplinary proceedings which I shall mention shortly.
I have already referred to the abusive and belligerent behavior of the plaintiffs. It could be taken into account for its part in Schofield's loss of temper. That is not to deny exemplary damages because of the plaintiff's conduct. Rather, it is to address the nature of the defendant's conduct. It goes to the nature of the defendant's conduct and in my view his Honour took it into account in that way.
So far as the criminal proceedings are concerned, there is no doubt that, in the case of Sebastian, there was a finding of guilt, both in the Local Court and the District Court on appeal. The order made, and its precise terms, was not, however, in evidence before the trial judge. It was simply agreed between the parties that the conviction for the assault had been quashed, pursuant to the provisions of s 10 of the Crimes (Sentencing Procedure) Act . His Honour said that, notwithstanding that the conviction was quashed in these circumstances, this matter "would remain on Schofield's criminal record, and in that sense, might be regarded as a punishment as a result of the events of that evening".
It might be noted, although it was not discussed by his Honour, that s 10 of the Crimes (Sentencing Procedure Act) is in these terms:
"10(1) Without proceeding to conviction, the court that finds a person guilty of an offence may make any one of the following orders:
(a) an order direction that the relevant charge be dismissed,
(b) an order discharging the person on condition that the person enter into a good behaviour bond for a term no exceeding two years,
(c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention programme and to comply with any intervention plan arising out of the programme."
As I have noted, the precise basis on which the s 10 order was made was not in evidence. Presumably, had it been the fact that a s 10(1)(b) bond was imposed, for example, that may have been a relevant matter for consideration.
The legislation enables a court, in determining whether to make an order under s 10, to take into account the offender's character, antecedents, age and health. It may take into account the trivial nature of the offence, and any extenuating circumstances in which the offence was committed. Even though no conviction is recorded, the order has the same effect as a conviction for certain purposes: for example, for the purposes of enabling a court to order compensation in favour of the victim under the Victims Compensation Act 1996 (NSW).
In my opinion, it was appropriate for his Honour to take into account the situation, so far as the criminal proceedings in connection with Sebastian's assault, were concerned. This was because it was relevant to see whether the processes of the criminal law had been brought to bear on Schofield, and to determine whether or not, in any sense, he had been punished as a result of his assaults. The trial judge was able to conclude that he had been. It was not so much a question of the adequacy of the punishment, but the fact that he had been successfully prosecuted under the criminal law, and found guilty. His Honour did not treat this fact as determinative of the outcome on the issue of exemplary damages, but merely took it into account as one relevant factor. He did not regard it as a complete bar to the award of damages. In my opinion, it was not an error of law to rely on the matter in the way he did.
The position in relation to Christian was somewhat different. As I have said, Schofield had been convicted of the assault on Christian in the Local Court. However, on appeal in the District Court, he was found not guilty. His Honour noted that fact, but otherwise made no comment about it. There was no evidence before the trial judge as to the reasons for the acquittal. Nor is there any material before the court on that issue. It may simply be, for whatever reason, that the prosecution was simply unable to prove the charge to the requisite standard of criminal proof. I do not, however, consider that his Honour fell into any error by taking into account, as relevant on the issue, the fact of the criminal proceedings relating to the assault on Christian, and their outcome. Once again, his Honour clearly did not see this as a matter that, in itself, prohibited the imposition of exemplary damages. It was no more than a factor to be taken into account, with others, in the assessment of that issue. Indeed, in relation to both brothers, the criminal proceedings involving Schofield were not identified as being of any particular significance. As factors going to the discretion as to whether exemplary damages, they were of a minor nature and were seen as such in assessing the overall situation.
The fact that Schofield was the subject of disciplinary proceedings and suspended from his employment was also a matter that, in my opinion, his Honour correctly regarded as relevant to the issue of whether exemplary damages should be awarded. As I have explained, those circumstances were by no means determinative of the issue, and his Honour did not treat them in that way. They too were minor matters in the ultimate evaluation. An adverse order made against a person in disciplinary proceedings, even a temporary suspension order, has the capacity to affect his or her employment, both with a present employer and future employers. Although not criminal punishment, it can rightly be regarded as some type of punishment, possibly very real punishment, for the purposes of assessing whether exemplary damages should be imposed and, if so, the relevant quantum of those damages. (On the issue of disciplinary orders being regarded as punishment: see Rich v ASIC [2003] NSWCA 342; 183 FLR 361 at 411; Police Service Board v Morris [1985] HCA 9; 156 CLR 397 at 403 per Gibbs CJ). In the present matter, as I have said, it could only play a minor role and it is clear that it did.
The final matter relied upon by Mr Neil in relation to this aspect of the damages argument was the proposition that exemplary damages should have been awarded against RailCorp, on the basis that it had failed to train and discipline its transit officers, including Schofield, to prevent the type of abuse represented by his assaults. In view of the findings the trial judge made relating to the inapplicability of exemplary damages against Schofield and the correctness of those findings, this matter does not arise for consideration. That is especially so when regard is had to the fact that no claim of that kind appears in the pleadings.
Compensatory damages
The trial judge awarded $5,000 general damages in favour of Sebastian, and $7,000 in favour of Christian. Each brother received a further award of $5,000 in aggravated damages. Mr Neil complained about the quantum of each of these awards. As to the general complaint that the level of damages in favour of each of the brothers was too low, no particular matter was identified that would justify this court's intervention in the assessment of damages. The trial judge found that, so far as Sebastian is concerned, apart from his torn shirt, he was not satisfied that he had sustained any physical injury as a consequence of Schofield's assault. The assault was restricted to the acts of Schofield lunging at Sebastian, coming into contact with his neck or throat, ripping his shirt and forcing him to the ground. There was no claim for property damage. His Honour recognised that the assault on Sebastian was "a frightening experience". He acknowledged also that it was "unnecessary and unjustified". In those circumstances, the award of $5,000 for general damages was a reasonable one.
The trial judge, by comparison, recognised that Christian had been subjected to a more serious assault than that inflicted upon his brother. He had been struck two or three times in the face and mouth regions, causing his lip to bleed. His head was slammed into the ground. However, his Honour found that, apart from the injury to his lip, there were no injuries sustained by Christian as a consequence of Schofield's assault. The award of $7,000 in favour of Christian in general damages should not be disturbed. Both awards, although low, were within a reasonable range in the circumstances found by the trial judge.
So far as the judge said that damages may be awarded where the defendant has acted in committing a tort with contumelious disregard for the plaintiff's rights in an insulting or high-handed way or with malice, there was some confusion with the basis for an award of exemplary damages. However, the confusion did not operate against the appellants, since his Honour considered that Schofield's actions were high-handed; and he then correctly addressed the relevant basis for aggravated damages, namely that those high-handed actions would have increased the appellant's suffering, warranting an award of aggravated damages. In dealing with Sebastian's claim in this way, his Honour correctly recognised the distinction between aggravated damages and exemplary damages. The passage, read in the context of the full decision, shows that his Honour was well aware of the conceptual distinction between the compensatory nature of aggravated damages, and the punitive and deterrent nature of exemplary damages. It also needs to be recalled that "in many cases, the same set of circumstances might well justify either an award of exemplary or aggravated damages" ( Uren v John Fairfax & Sons Pty Ltd per Taylor J at 130). In short, it is quite clear that the trial judge recognised that aggravated damages are awarded to compensate the plaintiff for increased mental suffering due to the manner in which the defendant has behaved in committing the wrong. Aggravated damages, it has been said, are intended to compensate the injured plaintiff because the more reprehensible the wrongdoer's conduct, the greater the indignity the plaintiff suffers and the greater the outrage to his or her feelings ( Uren v John Fairfax& Sons Pty Ltd per Windeyer J at 151).
Mr Neil argued that it was wrong for the trial judge to take into consideration the "provocative behaviour of the plaintiffs and their belligerence" in assessing aggravated damages. From the material I have earlier referred to, there was ample evidence to justify his Honour's findings that both brothers had repeatedly used offensive language and acted in a manner that might properly be described as belligerent. It is true that they had not demonstrated any physical violence towards the transit officers prior to the assaults, but their overall attitude and conduct was properly described as belligerent. I do not consider that the trial judge fell into error by taking this matter into account on the issue of the quantum of aggravated damages. Fontin v Katapodis is authority for the proposition that provocation does not have the effect of reducing "actual" compensatory damages, that is, damages for medical expenses, loss of earning capacity and non-pecuniary loss that is not aggravated by the defendant's conduct. On the other hand, although aggravated damages are correctly described as compensatory, such damages may be reduced if the plaintiff's conduct has been provocative, since all the circumstances must be taken into account in determining the hurt to the plaintiff's feelings, and such circumstances include the fact that the plaintiff's own behaviour may have brought the attack on himself: Fontin v Katapodis at 183 per McTiernan J; Horkin v Port Melbourne Football Club Social Club [1983] 1 VR 153 at 162 per Brooking J; O'Connor v Hewitson & Anor [1979] Crim LR 46; Hill v Cooke [1958] SR (NSW) 49.
The findings made by the trial judge did not suggest that Schofield was in any way entitled to assault either of the brothers as he did. It was unjustified and unnecessary, as the trial judge found. Nevertheless, the behaviour of both Sebastian and Christian was quite unwarranted, and justified the giving of directions for their removal from the railway station. Both brothers made it completely clear that they were not going to leave, and it was in those circumstances that they were seized and physically escorted from the premises. It is true that Schofield's assault precipitated the removal process, but it did not alter the fact that the brothers were going to have to be physically restrained and removed in any event. His Honour was entitled to bring their behaviour to bear in assessing the award for aggravated damages.
For the reasons I have given, none of the arguments which have sought to attack each award of damages can succeed.
Interest
[Sebastian - Ground 30; Christian Ground 31]
Sebastian and Christian have each argued that the trial judge erred in law in not awarding any interest on damages. It was submitted that the trial judge had not advanced any reasons as to why each appellant was not entitled to interest on those damages. It seems to be common ground between the parties, however, that the failure to award interest was simply an oversight. It would have been possible for the appellants to have approached the judge to ask, pursuant to the slip rule, that the question of interest be addressed: L Shaddock & Associates Pty Ltd v Parramatta City Council [No 2] [1982] HCA 59; (1982) 151 CLR 590. It appears that this was not done. The respondents do not, however, take any point on this issue, and it is common ground that this court should remedy the situation. Christian's calculation of interest is $2,201.28 at 4%, or $1,100.64 at the lower rate. The comparable figures in the case of Sebastian are $1,834.40 or $917.20.
In the circumstances of the nature of the assault on each brother, and given that there were no later consequences in each case, it will be appropriate to award the higher amount of interest claimed by each appellant. This will be addressed at the conclusion of these reasons.
Costs
[Sebastian - Grounds 31 to 38; Christian Grounds 32 to 38]
There were two separate bases for the attack on the trial judge's costs orders. First, it was argued that his Honour erred in declining to make either a Bullock or Sanderson order against RailCorp in respect of the costs ordered against the brothers in favour of the remaining transit officers who had unsuccessfully been sued. Secondly, it was argued that the trial judge had fallen into error in relation to the indemnity costs orders he made against each appellant.
Bullock order
So far as the first matter is concerned, I am not satisfied that any basis has been demonstrated upon which it would have been proper for the trial judge to order RailCorp to pay, either directly or indirectly, the costs ordered against the appellants in relation to the proceedings against the successful transit officers. In Gould v Vaggelas [1985] HCA 75; (1985) 157 CLR 215, Gibbs CJ said at 229:
"The ground on which a Bullock order may be made is in my opinion, more accurately stated in a passage in Sanderson v Blyth Theatre Co. [1903] 2 KB 533 at 539, which was cited with approval in Bullock v London General Omnibus Co. [1907] 1 KB 264 at 272 and Hong v A & R Brown [1948] 1 KB 515 at 522, viz., that the costs which the plaintiff had been ordered to pay to the defendant who succeeded, and which the plaintiff recovers from the defendant who has failed "are ordered to be paid by the unsuccessful defendant, on the ground that... those costs have been reasonably and properly incurred by the plaintiff as between him and the [unsuccessful] defendant. In Johnsons Tyne Foundry Pty Ltd v Maffra Corporation, supra, Williams J, at pp 572-3, stated the principle in a similar way, and Starke and Dixon JJ, in giving their reasons for making a Bullock order, both relied on the circumstances that the attitude adopted by the successful defendant had induced the plaintiff to join the other defendant: see at pp 559-60, 566. In my respectful opinion the true position was clearly stated by Blackburn CJ in Steppke v National Capital Development Commission (19 7 8) 21 ACTR 23 at 30-1, when he said that "there is a condition for the making of a Bullock order, in addition to the question whether the suing of the successful defendant was reasonable, namely that the conduct of the unsuccessful defendant has been such as to make it fair to impose some liability on it for the costs of the successful defendant"."
See also Sved v Council of the Municipality of Woolhara [1998] NSW Conv R 55-842 (at 55-605), Giles J (as he then was), setting out principles that were accepted by this court in Roads and Traffic Authority NSW v Palmer [No 2] [2005] NSWCA 140 at [30] (Spigelman CJ and Handley JA agreeing); Maricic v Dalma Formwork (Aust) Pty Ltd [No 2] [2006] NSWCA 237; (2006) 67 NSWLR 712 at 717-718 per Basten JA (with whom Beazley and Ipp JJA agreed).
Mr Neil argued, first, that the late viewing of the CCTV footage (brought about by the need for specialised software) justified a Bullock order. Secondly, he pointed to the fact that the transit officers and RailCorp were represented by the same lawyers. Thirdly, he argued the costs orders in respect of the successful transit officers were unduly onerous to his clients. Finally, he suggested that the overall situation meant that it was reasonable and proper for the brothers to have joined all the transit officers involved, including those who were later successful against his clients in the proceedings.
None of these arguments, in my opinion, demonstrate that there was anything in the conduct of RailCorp that would make it just and fair to order them to pay the costs of the brothers' unsuccessful claims against the transit officers. In relation to the CCTV footage, it is obvious enough that, had proper arrangements been made at an earlier point in time, it could have been viewed well before the trial. More importantly, however, after it had been viewed, the brothers maintained their actions against all the transit officers and, indeed, by tendering the CCTV footage and the preliminary Report, indicated their reliance upon that material against all the defendants, not merely Schofield. None of the other arguments advanced by senior counsel pointed to any conduct on the part of RailCorp that could possibly warrant the making of a Bullock order.
In my opinion, there is no aspect of the exercise of the trial judge's discretion that would justify the interference by this court on this issue.
Indemnity costs
In relation to the indemnity costs arguments, it is necessary to set out the facts found by the trial judge. These were contained in a separate judgment given by his Honour on 17 November 2008.
On 16 October 2007, a formal offer of compromise under Rule 20.26 of the Uniform Civil Procedure Rules 2005 was sent by fax to the plaintiff's solicitors in respect of Sebastian's claim. This was in the sum of $15,000 plus costs. The offer was expressed to be open until 22 October 2007. On the same day, a formal offer of compromise under the Rules was made in respect of Christian's claim, in the sum of $7,500 plus costs. It too was expressed to remain open until 22 October 2007. It is necessary to note that each plaintiff's case was set down for hearing to commence in the District Court on 22 October 2007. It is also necessary to note that, on 15 October 2007, the day before the formal offers of compromise were served, the plaintiffs' solicitors had rejected an offer of $40,000 inclusive of costs for both plaintiffs and had responded that the cases could not be resolved for anything less than $118,000 inclusive of costs, allocated on the basis of $52,000 inclusive of costs to Sebastian, and $60,000 inclusive of costs for Christian.
Although the case was scheduled to commence on 22 October 2007, it was not reached on that day. It was stood over for mention so that a new hearing date could be selected. It was subsequently listed to commence on Monday 4 February 2008. On 4 February 2008, the first day of the trial, a verbal offer of $100,000 plus costs for both matters was made by the plaintiffs' representatives to the defendant's representatives. On the morning of 6 February 2008 (Day 3 of the trial) formal offers of compromise under Rule 20.26 were hand delivered by the defendant's solicitors to the plaintiffs' solicitors in court as follows:
"(a) Sebastian - $20,000 plus costs. The offer was expressed to be open until 8 February 2008 at 10:00am.
(b) Christian - $12,500 plus costs. The offer was expressed to be open until 8 February 2008 at 10:00am."
His Honour noted in his final decision that the offer of compromise made to Sebastian on 16 October 2007 was $5,000 more than his award of damages. In the case of Christian, the offer of compromise on 6 February 2008 was $500 more than his award of damages.
Although the hearing of the proceedings commenced on 4 February 2008, there were procedural difficulties that led to the plaintiffs' evidence not commencing until the morning of 6 February 2008. The first procedural problem arose out of the fact that the legal representatives for the brothers maintained that they had not been able to examine the CCTV footage of the incident. It appears that the solicitors had also not been able to examine the preliminary inquiry Report into the incident conducted by RailCorp in April 2004. The trial judge found, however, that the lawyers for RailCorp had produced to the court the CCTV footage, and the Report of the inquiry, together with notebook entries of the transit officers, back on 12 February 2007. His Honour found that the material had thus been available to the plaintiffs from 5 March 2007, the day upon which orders were made granting access to the material to the plaintiffs.
The procedural problem of allowing the plaintiffs to view the CCTV footage (particular software being required) was overcome by an arrangement between the parties, reached on 4 February 2008. The second procedural problem arose from the fact that the plaintiffs sought to make amendments to the two Statements of Claim in certain respects. That situation led to the proceedings being adjourned until the following day, 5 February 2008. On the second day, the matter was further adjourned due to further complications arising from the amendments sought by the plaintiffs. However, the proceedings were ready to, and did, commence on the morning of 6 February 2008. As I have earlier indicated, it was on that occasion that the further offers of compromise were made.
The trial judge, in his decision, set out in detail the submissions which had been made to him in respect of the indemnity costs applications. They were, first, that the plaintiffs did not know, and had no way of knowing, the full sequence of events, or the precise conduct of the participating parties, until access to the preliminary report of the incident conducted for RailCorp, and the CCTV footage, of the incident was secured; secondly, that the offers of compromise made on 6 February 2008 had been unreasonably restricted in relation to the time for acceptance; and thirdly, that the earlier offer made on 16 October 2007 to Sebastian contained an unreasonably restrictive time frame for acceptance.
The trial judge gave detailed consideration to each of the arguments. It was his considered view that none of the matters raised was sufficient to deprive the defendants of the costs orders that were sought. He provided detailed reasons. In particular, the trial judge was not impressed by the argument that suggested that the plaintiffs were unreasonably prejudiced by the inability to examine the CCTV footage and the preliminary inquiry Report. His Honour noted, once again, that these had been produced in the early part of 2007, and access had shortly thereafter been granted. His Honour considered that there were ample court procedures available to the plaintiffs to ensure that their case was ready for trial and able to be appropriately assessed by their legal advisors. In relation to the claims that the offers were based upon overly restrictive time frames, his Honour was not satisfied, in the particular circumstances, that this was so. In these circumstances, his Honour made each of the orders sought by the defendants referred to earlier in these reasons.
Mr Neil essentially presented the same arguments that had been made before the trial judge in relation to the indemnity costs issues. Mr Neil added to this argument, however, a further proposition. He submitted that the fact that the CCTV footage had been produced to the court, and access granted as at 5 th March 2007, was not relevant, nor was it determinative as his Honour had thought. This was because, senior counsel submitted, the CCTV footage was a plastic disc, not capable of being viewed without additional software which remained in the exclusive possession of RailCorp until 4 th February 2008. The timeframe arguments that had been relied on before the trial judge were, as I have said, essentially repeated before this court.
Once again, I am not persuaded that any of the arguments sought to be relied on by senior counsel for the brothers requires a disturbance of the costs orders made by the trial judge. Mr Neil's additional argument concerning the CCTV footage has already been addressed. There was nothing to stop an early solution to the practical problem presented by the nature of the DVD viewing software. Secondly, the preliminary Report, containing statements from all the relevant officers and security guards, could have been inspected well before the hearing.
So far as the time frame arguments are concerned, both the October and February dates for acceptance emerged following a series of informal offers that were considered and rejected between the parties. In relation to the October offer of compromise, it allowed a period of seven days. It could not be said, in my opinion, that it was unreasonable to select a seven-day period for acceptance, in all the circumstances. It is true, by contrast, that the February offers were made during the hearing and allowed only two days for acceptance. It needs to be recalled, however, that the first two days allocated to the hearing became, in real terms, lay-days. The hearing proper did not commence until the morning of the third day, when the offers were made. The arguments put before the trial judge, and before this court, suggested that there may have been practical problems in relation to obtaining instructions during the two-day period. The trial judge considered the detail of all those submissions and concluded that there was no substance in them. The appellants cannot succeed on these arguments, unless it is demonstrated that the primary judge's discretion miscarried, either by some manifest error or by consideration of an irrelevant matter: Wentworth v Rogers [No 3] (1986) 6 NSWLR 642 at 644; House v The King [1936] HCA 40; (1936) 55 CLR 499. In my opinion, no such error has been demonstrated and the trial judge's orders as to costs should stand.
This Court should make orders whereby the appellants obtain interest on their damages, but the appeals have in substance failed and that should not bring any alleviation of costs orders against them. The respondents' written submissions stated that they wished to be heard in relation to the appropriate basis on which costs should be ordered and in relation to the costs associated with the preparation and service of multiple versions of appeal books and notices of appeal - a submission not repeated in oral address. I propose to make the ordinary order as to costs. The respondents may if they wish to be heard further make application to vary that order by Notice of Motion bearing in mind the strictures of UCPR 36.15 -36.18.
Orders
I propose the following orders:
(1) Set aside the judgments for $10,000 in favour of the first appellant and $12,000 in favour of the second appellant and in lieu thereof judgments for $12,201.28 and $13,834.40 respectively taking effect on 14 October 2008.
(2) Appeals otherwise dismissed.
(3) Appellants to pay respondents' costs of the appeals.
**********
22
26
9