State of NSW v Ibbett [2005] NSWCA 445

Reported Decision : 65 NSWLR 168

New South Wales Court of Appeal

State of NSW v Ibbett [2005] NSWCA 445 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 14 October 2005

JUDGMENT DATE: 13 December 2005

JUDGMENT OF: Spigelman CJ at 1; Ipp JA at 106; Basten JA at 184

DECISION: (1) Appeal dismissed; (2) Allow the cross-appeal in part and vary the orders in the District Court so as to; (a) set aside orders 1 and 2; (b) in relation to the assault, add an additional amount of $10,000 on account aggravated damages; and; (c) set aside the awards of exemplary damages and award in lieu thereof; (i) an amount of $25,000 with respect to the assault, and; (ii) an amount of $20,000 with respect to the trespass; (3) Direct that judgment be entered for the Plaintiff in the sum of $105,000; (4) Order the Appellant to pay the Respondent's costs of the appeal and cross-appeal

CATCHWORDS: Damages – - assault and trespass committed by police officers - exemplary damages – aggravated damages - whether award of exemplary damages and/or aggravated damages against the State appropriate – whether award precluded by s21 of Civil Liability Act (2002) (NSW) – whether s3B(1)(a) operates to exclude the application of the Act – whether the proceedings were with respect to 'an intentional act done with intent to cause injury' - consideration of principle of coherence

Civil Liability Act 2002 (NSW) Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW) Constitution Act 1902 (NSW) County Court (Jurisdiction) Act 1972 (Vic) LEGISLATION CITED: Law Reform (Vicarious Liability) Act 1983 (NSW) Magistrates' Court Act 1971 (Vic) Mental Health Act 1990 (NSW) Police Act 1990 (NSW)