New South Wales Court of Appeal CITATION : Lee v Kennedy & Ors [2000] NSWCA 153 FILE NUMBER(S) : CA 41033/98 HEARING DATE(S) : 7 February 2000 JUDGMENT DATE : 26 June 2000 PARTIES : Susan Lee v Gary Kennedy, Anthony Bordin, Robert Krause and The State of New South Wales JUDGMENT OF : Priestley JA at 1; Sheller JA at 21; Beazley JA at 22 LOWER COURT JURISDICTION : District Court LOWER COURT DC 78/97 FILE NUMBER(S) : LOWER COURT His Honour Judge Delaney JUDICIAL OFFICER : COUNSEL : Appellant - A.B. Shand QC / B. Kinsella Respondent - B. Donovan QC / C. Lonergan SOLICITORS : Appellant - James Fuggle Solicitors Respondent - I.V. Knight, State Crown Solicitor CATCHWORDS : Trespass to land - Trespass to person - False imprisonment CASES CITED: Lamb v Cotogno (1987) 164 CLR 1 XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia Pty Ltd (1985) 155 CLR 448 DECISION : Appeal allowed THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41033/98 DC 78/97 PRIESTLEY JA SHELLER JA BEAZLEY JA Monday, 26 June 2000 LEE v KENNEDY & ORS TRESPASS TO LAND - TRESPASS TO PERSON - FALSE IMPRISONMENT - claims by plaintiff upheld in part by trial judge - appeal by plaintiff principally on damages. The trial judge found the following facts. Three police officers went to the plaintiff's residence. Two sought to arrest her without telling her the charge on which she was being arrested. She was injured by the force they used and was taken to a police station and kept in custody for some hours in humiliating circumstances. In her proceedings against the three police officers (and the State of New South Wales) the trial judge found two of them (and, vicariously, the State) guilty of trespass to the person, but apparently not of trespass to land or false imprisonment. In the damages award he included an amount for " aggravated or exemplary damages ". On the plaintiff's appeal, held, that on the facts found by the trial judge, the plaintiff had established false imprisonment as well as trespass to the person, and was entitled to both aggravated and exemplary damages. The damages were increased. ORDERS 1. Appeal upheld. 2. Judgment of the trial judge set aside. 3. In its place judgment for the plaintiff is ordered in the sum of $170,000 (made up of the amount assessed by the trial judge for general damages, $25,000, together with $25,000 for aggravated damages and $120,000 for exemplary damages). 4. The parties are to have seven days from today to file such written submissions as they may wish to put to the court on the question of costs. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41033/98 DC 78/97 PRIESTLEY JA SHELLER JA BEAZLEY JA Monday, 26 June 2000 LEE v KENNEDY & ORS 1 PRIESTLEY JA: Introduction Ms S. Lee, as plaintiff, brought an action in the District Court against Mr G. Kennedy (first defendant), Mr A. Bordin (second defendant), Mr R. Krause (third defendant) and the State of New South Wales (fourth defendant) claiming that on 22 August 1994 the first three defendants trespassed upon premises she occupied and seized and assaulted and beat her. She also alleged that the first three defendants falsely imprisoned her. They were constables of police. The fourth defendant was alleged by the plaintiff to be vicariously liable for the conduct of the three constables. The plaintiff claimed damages, aggravated and exemplary damages, and interest. 2 The plaintiff's action was heard by Delaney DCJ, who gave his decision on 4 December 1998. He found the plaintiff was entitled "1. ... to general damages for unjustifiable assault; 2. Damages for trespass to her person; 3. As to aggravated damages for the effect on her of that assault and trespass". Further, he said he thought she should receive "aggravated damages or exemplary damages". He then found an amount of general damages for the assault of $25,000 and $15,000 for "aggravated or exemplary damages". He made no specific finding about false imprisonment. His findings were made and he gave judgment against the second and third defendants (Messrs Bordin and Krause) and the State, but not against the first defendant. 3 The plaintiff and the second, third and fourth defendants sought leave to appeal to this court. Leave was granted to the plaintiff but not the second, third and fourth defendants. This was the basis on which the parties conducted and the court heard the appeal. 4 The orders sought the in the plaintiff's notice of appeal in its final form were for damages for trespass to property, damages for false imprisonment, for increased exemplary damages and the costs of the trial on an indemnity basis. She did not raise any question about the dismissal of her case against the first defendant. The State did not raise any question about its vicarious liability for the defendants against whom judgment was entered. 5 The events leading to Ms Lee's case arose out of those which were the subject of another action, brought by Mr J. Adams, her defacto husband, against the same four defendants. The two actions were by consent heard together by Delaney DCJ. It was agreed that in regard to liability the evidence in each action should also be evidence in the other. Mr Adams obtained judgment in his action, against all four defendants, but appealed for reasons connected with the damages he was awarded. Judgment in his appeal has just been delivered. 6 Nine witnesses gave evidence before Delaney DCJ. These were the two plaintiffs, their son, a solicitor who represented them at the police station on the day they were taken there, the first three defendants and a married couple who lived within eyeshot of the premises where the plaintiffs lived. 7 Much of the evidence was conflicting. The trial judge resolved the principal issues by his factual findings. These were not disputed in the appeal, and this court must therefore take them as the relevant facts for purposes of the appeal. 8 Factual findings at trial. The following summary is taken entirely from the trial judge's factual findings. 9 The trial judge began by recounting what was alleged by the police officers against the plaintiff. This was that while they were arresting Mr Adams for an alleged assault on the first defendant, Ms Lee struck one of the police officers with either a baton or a broom handle, that she then went back into the house where Constables Bordin and Krause followed her and allegedly told her she was under arrest for assault. This was said to have happened after the melee that had occurred outside the house when Mr Adams was resisting what this court has held in his appeal was an unlawful arrest. (This holding was based on facts common to both appeals.) 10 The trial judge next commented that although various witnesses (amongst whom, his later findings made clear, he included the first three defendants) had embellished, exaggerated and outright lied in giving their evidence, he was very impressed by Ms Lee's evidence. The trial judge said her evidence was given in a forthright, straightforward fashion and where there was any conflict between her evidence and that of the police about conversations between them when they were seeking to arrest her, he accepted her evidence and rejected that of the police. He then added that the police officers were fabricating their evidence to ensure no damages were awarded against them. 11 The trial judge then referred to what had happened in the melee outside the house, which he said at the very worst involved the plaintiff using a broom handle to try and pry one of the police officers off her husband whom they were attacking quite forcefully while trying to handcuff him. 12 The trial judge then made these findings: the plaintiff left the melee and went inside the house to make a telephone call for assistance. The police officers (Constables Bordin and Krause) followed her inside, never suggested at any time that she was under arrest for anything, grabbed hold of her, dragged her out of the bedroom, and wrestled with her down the hallway and then out of the house. One of them took hold of her in a headlock. While getting her out of the house they ripped her clothing so that her undergarments and body were exposed. She remained in this state while being handcuffed, put into the police van, taken to the police station and until later in the evening when the legal practitioner who went to the police station to represent her and Mr Adams gave her a jumper to cover herself. During the lengthy period from her wrongful arrest until this happened, the police took no action at all to try and relieve the problem created, to use the trial judge's words, "by way of her immodesty in having her flimsy garments torn". She suffered some grazing and possibly some mild swelling over the left wrist and some soft tissue injuries. She recovered reasonably quickly from the physical injuries. There was for a period of time a reaction of an anxiety type not necessarily psychiatric, but nevertheless a real physical reaction which the trial judge found was an anxiety response directly caused by the incident. 13 Damages. Counsel for the defendants was unable in the present appeal to put any submissions of any weight against an increase in the plaintiff's damages, in view of the consequences of the trial judge's factual findings. He did urge the court to keep exemplary damages to a low level.. 14 As in Mr Adams's case, it is sufficient to refer to Lamb v Cotogno (1987) 164 CLR 1 as a leading authority on the learning which governs the decision of the present case. That learning, applied to the facts found by the trial judge, clearly brings about the result that the plaintiff was entitled to exemplary damages for her various causes of action. I say this in light of the trial judge's reiteration when discussing damages that he "rejected the police evidence ... as being false and duplicitous" (thus consolidating his basis for accepting the plaintiff's account of events) and his description of what happened to the plaintiff as "a disgraceful episode", a description with which, on his findings, I agree. 15 I also agree with the way it was described by Sheller JA in the course of argument in the appeal. At the same time Sheller JA also succinctly stated some considerations about exemplary damages, with which I also agree, which deserve to be reproduced: " [this was] an extraordinarily serious breach of, if you like, fundamental rights. If this power to award exemplary damages is to mean anything, it must mean that the damages are imposed in a way which brings it home to these particular defendants, including this State, that this conduct is not accepted and that it shouldn't happen again, to put it one way. To bring that home to the State probably requires, particularly as it's pointed out that the State is apparently picking the bill up for this as you say in your submission, that requires a very substantial amount doesn't it? It means that somebody has to sit up and say that this simply has to stop, that the taxpayers shouldn't be paying for this sort of behaviour. " 16 When counsel replied that an award of exemplary damages against the State would make the taxpayers pay for the wrongdoing Sheller JA said, and again I agree with him: " I know that's as it happens, but I mean how else but a very substantial amount can bring home to the powers that be the seriousness of this? " 17 It is not completely clear whether the trial judge intended to award exemplary damages in this case. He awarded $15,000 for what he described as aggravated damages in one place and in two other places "aggravated damages or exemplary" damages. Then on another occasion, relying on what Brennan J had said in XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448, which was without any question an exemplary damages case, he said that an award of exemplary damages was appropriate to punish the defendants for their conscious and contumelious disregard for the plaintiff's rights and to deter them from committing such an offence again. 18 It seems to me clear that an amount of $15,000 was completely inadequate for either exemplary damages alone or for the combination of aggravated or exemplary damages which the judge twice mentioned. The sum of $15,000 seems to me to have been possibly appropriate for aggravated damages alone as described in Cotogno, see particularly at 164 CLR 8, although even then it seems to me to be too low. A figure of $25,000 would be (moderately) appropriate. 19 For the reasons given by the trial judge, and to mark the extreme seriousness of what was done by the second and third defendants, it seems to me that a substantial award for exemplary damages is required in the present case. Again, as in Mr Adams's case, I see no point in assessing damages separately for each cause of action arising from the facts found by the trial judge, but think it preferable to award one aggregate sum covering all the causes of action. In my opinion an appropriate sum is $120,000. 20 I would therefore propose that the judgment of the trial judge be set aside and that in its place there should be entered a judgment of $170,000, made up of the amount assessed by the trial judge for general damages, $25,000, $25,000 for aggravated damages and $120,000 for exemplary damages. Orders to that effect should in my opinion be made on the day of publication of these reasons, but for the same reasons as explained in Mr Adams's case, the parties should have seven days from that day to file such written submissions as they may wish to put to the court on the question of costs. 21 SHELLER JA: I agree with Priestley JA. 22 BEAZLEY JA: I agree with Priestley JA. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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