HAINES v LIPPL [1991] NSWCA 136

HAINES v LIPPL

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, MEAGHER JJA and Hope AJA 17 May 1991, 4 June 1991 [1991] NSWCA 136

TRESPASS — ASSAULT — DAMAGES APPEAL — COMPENSATION — NO QUESTION OF PRINCIPLE

Clarke JA On the evening of 30 October 1983 the respondent was in his house atl17 York Street, East Gosford, with his son Louis and his son's then fiance, Miss Kim Vaisey. At about 8 pm a number of police officers, including the second appellant, entered the house. All police officers were armed, the second appellant and another officer, Det Sen Const Paul Raymond Navin, being armed with shotguns and the other police officers with service revolvers.

The respondent claimed that the second appellant prodded him in the abdomen with a shotgun and that, as a result, he fell to the floor, first striking his head and then his back while falling. He alleged that when he was on the floor the second appellant kicked him in the groin. It was not disputed that the respondent was injured as a result of being struck by the second appellant's shotgun although there was disagreement as to the circumstances in which that occurred. Those injuries included a considerable laceration to his left upper lip, requiring some thirty stitches, and damage to his top gum and to a number of his teeth.

Following this incident the respondent was taken to the Gosford Police Station. According to him he had been unlawfully compelled to go there. He claimed that the whole incident, including the physical injuries, led to significant psychological consequences and that in the result he had been unable to work and had suffered both mental and physical anguish.

He sued the appellants claiming damages for the trespass constituted by the entry of the police officers into his home, which he said was an unlawful entry, assault in respect of the injuries he received at the hands of the second appellant and false imprisonment in respect of his detention at Gosford Police Station. At the trial his claims were rejected by the trial judge who entered judgment for all defendants. The respondent thereupon appealed to this Court which allowed his appeal in respect of the counts of assault and trespass, set aside the orders of the trial judge and in lieu thereof directed the entry of judgment on those counts in favour of the respondent. The Court also ordered that the respondent's claim for damages in respect of the trespass and assault be referred to a Master of the Common Law Division for assessment in accordance with the reasons of the Court.