New South Wales Court of Appeal CITATION : State of NSW v Knight [2002] NSWCA 392 FILE NUMBER(S) : CA 41045 of 2001 HEARING DATE(S) : 14/11/02 JUDGMENT DATE : 6 December 2002 State of New South Wales PARTIES : v Austin Owen Knight JUDGMENT OF : Meagher JA at 1; Handley JA at 18; Ipp JA at 19 LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT SC 18836 of 1993 FILE NUMBER(S) : LOWER COURT Master Malpass JUDICIAL OFFICER : COUNSEL : A: Mr B Donovan QC & Mr P Saidi R: Mr G Little SC & Mr Tuscano SOLICITORS : A: I V Knight Crown Solicitor R: Eddelbuttel Solicitors CATCHWORDS : Assault - post-hypnosis evidence - whether there is an overlay between two causes of action - trespass - negligence - Williams v Milotin (1957) 97 CLR 465 - appeal dismissed with costs. LEGISLATION CITED : Law Reform (Vicarious Liability) Act 1983 s8 CASES CITED: Letang v Cooper [1965] 1 QB 232 Williams v Milotin (1957) 97 CLR 465 DECISION : Appeal dismissed with costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41045 of 2001 MEAGHER JA HANDLEY JA IPP JA Friday, 6 December 2002 STATE OF NEW SOUTH WALES v AUSTIN OWEN KNIGHT Facts On 1 January 1990, a policeman, Constable Jones, chased the respondent, Mr Knight, with a view to arresting him. At the end of the chase, the respondent jumped over a wall and landed on the other side. The respondent sustained considerable injuries. The trial judge held that the respondent's injuries were caused by an assault rather than a fall. A mass of evidence including evidence from a forensic dentist was tendered and relied upon by his Honour. On appeal, this evidence was challenged. The appellant further submitted; (i) that the trial judge should not have relied upon post-hypnosis evidence; (ii) that since the appellant was held to be vicariously liable under s 8 of the Law Reform (Vicarious Liability) Act 1938, it could not also be liable in negligence. Held i. There was no way to challenge the evidence on which his Honour relied. ii. The trial judge reached his conclusions without in any way relying on the post-hypnosis evidence. That evidence was prompted by hypnosis, in a civil case, cannot do more than go to the weight of that evidence. iii. While the law in England seems to be tending towards the view that all intentional torts may only lie in trespass and all torts arising out of careless behaviour may only lie in negligence (Letang v Cooper [1965] 1 QB 232 per Lords Denning and Diplock), it is not the case in Australia as the High Court pointed out in Williams v Milotin (1957) 97 CLR 465, where it was held that there is a substantial overlay between the two causes of action. Orders Appeal dismissed with costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41045 of 2001 MEAGHER JA HANDLEY JA IPP JA Friday, 6 December 2002 STATE OF NEW SOUTH WALES v AUSTIN OWEN KNIGHT Judgment 1 MEAGHER JA: This is an appeal, which I regret to say I regard as hopeless, by the State of New South Wales against a judgment of Master Malpass holding that it was liable to the respondent Mr Knight in damages. The learned Master, with the consent of the parties, decided liability alone, leaving the quantum of damages to be decided later. 2 The judgment, for damages to be assessed, entered by the Master was interlocutory (Electricity Commission v Lapthorne (1971) 124 CLR 177), and leave to appeal was required under s 101(2)(e) of the Supreme Court Act. No one took the point until it was taken by the Court at the hearing. In the circumstances I am prepared to treat the appeal as competent. 3 The only facts which matter may be stated with some succinctness. Mr Knight was a miscreant who lived in Taree. At night on 1 January 1990 a policeman, Constable Jones, spied Mr Knight and gave chase to him, with a view to arresting him (although it is not at all clear why an arrest was necessary or would have been lawful). At the end of the chase Mr Knight jumped over a wall (which was low on the side from which he jumped) and landed on the other side (which was about 12 feet below). 4 The Master found that Constable Jones had access to him after he fell when nobody else was looking. 5 Mr Knight's injuries after the episode were considerable. He suffered a multiple (bilateral) inter cerebral haematoma and bruising in the left temporo-parietal region. His closed head injury was described as a severe blunt injury to the skull. He suffered bad facial injuries (inter alia, several fractured teeth, laceration to the lower lip, laceration to the chin and injury to the left zygoma). Perhaps of equal importance, there were no injuries to hands, arm, chest, abdomen and back. He also suffered brain damage. 6 The issue before the Court was thus summarised by the Master: "In relation to this contention, it is said that he had been assaulted by Constable Jones after vaulting over a fence (whilst being pursued by police) and that the assault caused injury (including brain damage). It is accepted by Constable Jones, that if there has been an assault (which he has denied), he was the only person who could have committed it. The defendant's case is that the plaintiff suffered his injuries in a fall after vaulting over the fence." 7 A truly surprising number of medical experts gave evidence, most of it inconclusively. 8 The police involved in the escapade (including, but not limited to, Constable Jones) were disbelieved on their oaths, and the Master gave powerful reasons why they should be. 9 There seems little point in cataloguing all the factors tending for and against the version of an assault, but there are very powerful indications why the Master was correct in holding that on the balance of probabilities Mr Knight's injuries were caused by an assault rather than a fall. Some such indications are dictated by pure commonsense. For example, why should the injuries be predominantly facial and cerebral if no more than a fall was involved? If a fall were the cause of the injuries, would one not expect injuries to the body, back, arms and legs? If a person jumped over a wall and fell, is it not unlikely that he would land on his head? 10 There is also a mass of technical evidence which appealed to the Master, and was relied on by him. Under this heading, in particular, is the evidence of Professor Clement. His evidence was summarised by the Master as follows: "Professor Clement is an expert in the field of forensic dentistry. He has had experience in dental practice and investigation (including in the area of dental damage caused by trauma. Because of his qualifications and experience, material was sent to him by Professor Cordner (a Professor of Forensic Medicine) to ascertain the cause of the dental injuries. He examined a dental radiograph and specimen teeth. He provided an initial report, but added that without more information it was impossible to come to many firm conclusions. Subsequently, Professor Clement, in conjunction with Dr Hill (a general dental practitioner and consultant forensic odontologist), conducted a full dental examination of the plaintiff. He then provided a further report. In it, he expressed the view that the claim of assault by police was quite plausible. He said that the pattern of injuries is complex and fits with the plaintiff's story and is consistent with a severe beating. He said that he would have reached the same conclusion regardless of what the plaintiff had told him. Of what he regarded as the three possibilities, he considered that the claim of assault whilst unable to defend oneself or avoid blows whilst dazzled by a torch was the most convincing explanation for the injuries. He considered that if other injuries were taken into account this view was strengthened. He took the view that a fall alone has to be discounted as the cause of all of the plaintiff's injuries." 11 Once that evidence is believed (as it was), the plaintiff must win his case, particularly as the defendant did not proffer any evidence from a forensic dentist. 12 In my view, the appeal ought to be dismissed with costs. 13 There are, however, two additional matters to which reference should be made. 14 One concerns what Mr Donovan QC, learned senior counsel for the appellant, called post-hypnosis evidence, although quite what (if any) orders, or what conclusions, he expected us to make on this matter remained always unclear. 15 On the evidence it is clear that before taking a course of hypnosis Mr Knight's memory of relevant events was very limited; after the time when he jumped he had almost total amnesia. He then underwent hypnotic treatment and "recovered" some more memory. I cannot see what the Master would be expected to do about that, or what is expected of this Court. Nor, in this case, does it matter, since the Master reached his conclusions without in any way relying on the "post-hypnosis" evidence. That evidence was prompted by hypnosis, in a civil case, cannot do more than go to the weight of that evidence. 16 The other concerns the cause of action on which the plaintiff relies. As things stand he has, as the trial judge found, been the victim of an assault (or trespass to the person), for which the appellant is vicariously liable under the Law Reform (Vicarious Liability) Act 1983 s8. This seems to have prompted a submission from Mr Donovan that the State cannot also be liable in negligence. This might be so if one took the view that all intentional torts lay only in trespass, and all torts arising out of careless behaviour lay only in negligence; and if one also took the view that negligence in law is the same thing as what a layman would call carelessness. While the law in England seems to be tending in this direction, under the malign influence of Lords Denning and Diplock in Letang v Cooper [1965] 1 QB 232, it is not the case in Australia, as the High Court pointed out in Williams v Milotin (1957) 97 CLR 465, where it was held there is a substantial overlay between the two causes of action. 17 In my view, as I have said, the appeal should be dismissed with costs. 18 HANDLEY JA: I agree with Meagher JA. 19 IPP JA: I agree with Meagher 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. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.