STATE OF NSW v. SARGEANT [2004] NSWCA 426

New South Wales Court of Appeal

CITATION : STATE OF NSW v. SARGEANT [2004] NSWCA 426 HEARING DATE(S) : 08/11/2004 JUDGMENT DATE : 23 November 2004

JUDGMENT OF : Hodgson JA at 1; Bryson JA at 2 DECISION : Appeal dismissed with costs; Cross-appeal dismissed; Each party to pay own costs of cross-appeal

CATCHWORDS : DAMAGES - personal injury - contentions of error in findings re - causation of continuing disability where plaintiff's arm re-fractured by police while recovering from earlier fracture in motor accident - unsuccessful attacks on assessments for - non economic loss, domestic care past and future - economic loss past and future - appeal and cross-appeal dismissed - ND LEGISLATION CITED : Civil Liability Act 2002 s.15 PARTIES : State of New South Wales - Appellant Gary Sargeant - Respondent FILE NUMBER(S) : CA 40105/2004 COUNSEL : Mr P. Menzies QC with Mr M. Hutchings - Appellant Mr J.M. Neil QC with Ms G. Preston - Respondent SOLICITORS : I.V. Knight, Sydney - Appellant Leitch Hasson Dent, Sydney - Respondent

LOWER COURT District Court JURISDICTION : LOWER COURT DC 4209/2002 FILE NUMBER(S) : LOWER COURT SORBY DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40105/2004

HODGSON JA BRYSON JA

TUESDAY 23 NOVEMBER 2004 STATE OF NEW SOUTH WALES v. GARY SARGEANT Judgment 1 HODGSON JA: I agree with Bryson JA. 2 BRYSON JA: The respondent (plaintiff in the District Court) was injured on 22 June 2000. Senior Constable Wraith, one of the four police officers attending at the respondent's home at Doncaster Avenue, Casula, in response to a domestic incident involving the respondent and his de facto wife Kerrie Anne Kennedy, restrained the respondent from moving from the lounge to the kitchen. The respondent suffered a refracture of his left humerus, which had already been broken in a motor accident on 13 April 2000, in which he had lacerations to the right elbow which required stitching, dislocation of the left shoulder which was reduced in the casualty ward, and the fracture to the left arm which was reduced to which a plaster cast was applied. On 22 June 2000 the respondent's recovery from the earlier fracture was well advanced, but was not complete. His principal injury on 22 June 2000 was a further fracture at the site of the earlier fracture to the left arm. The event in which the injury occurred was stated in these terms in the findings of Sorby DCJ: (Red 48) 4. Senior Constable Wraith on the Plaintiff's left and Constable McGlynn on the Plaintiff's right, took hold of each arm in a forward wrist lock hold and as the Plaintiff was forced back onto the lounge, Senior Constable Wraith swung the Plaintiff's left arm from in front of the Plaintiff to behind the Plaintiff's back in a wrenching movement that fractured the Plaintiff's left humerus; and 5. To maintain control of the Plaintiff in this manoeuvre, Senior Constable Wraith put considerable pressure on the Plaintiff's left shoulder with his, (Senior Constable Wraith's) left hand. 3 The respondent brought proceedings for damages against the State of New South Wales in the District Court at Sydney. After a hearing of 6 days in September and October 2003 Sorby DCJ gave judgment for the respondent on 30 January 2004, and assessed damages at $404,571.50. The Trial Judge determined that the police officers acted within their powers in restraining the respondent, but there was negligence in the exercise of their powers in that the two police officers who attended first had been informed that the respondent's arm had recently been fractured and that he was vulnerable, but did not pass this information to the officers who attended later, so that they were unaware of the respondent's vulnerability when they restrained him. The appeal relates to the assessment of damages, and the liability of the State to pay damages is not in issue in the appeal. 4 Assessment of damages at trial and on appeal does not involve decision of any legal principle. There are factual complexities because the respondent had not completely recovered from his earlier fracture, and when assessing the effects produced by his second injury the continuing effects which the first would otherwise have produced have to be determined not on actual experience but on a hypothetical basis. Although the hearing was lengthy, the main claim on attention was what in detail had happened when the police officers attended at the respondent's home; examination and testing of medical evidence was less complete than seems appropriate from the retrospective view on appeal. Some matters of detail were not proved as fully as they might well have been and no medical witness was examined orally or cross-examined to elucidate further facts or fuller expositions than appear in their reports. It appears to me that the Trial Judge was left to do the best he could on material which could well have been more helpful to him, and that his Honour could not and did not turn aside from the fact-finding task on the basis that there was less than the ideal amount of material in evidence. 5 The Trial Judge determined that damages were to be assessed under the Civil Liability Act 2002; this has not been challenged. A consequence of the decision is that the respondent did not recover exemplary damages or aggravated damages. Elements in the damages awarded were: