Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Willcocks v State of New South Wales [2012] NSWCA 59 Hearing dates: 6 March 2012 Decision date: 29 March 2012 Before: Whealy JA at [ 1 ] Sackville AJA at [57] Tobias AJA at [58] Decision: (1) Leave to appeal is granted, but limited to the issues of liability and exemplary damages. (2) The appeal is allowed. (3) Set aside the orders made by the primary judge on 31 March 2011. (4) The proceedings are remitted to the District Court for a new trial on the issue of liability and, if necessary, exemplary damages. (5) The respondent is to pay the appellant's costs of this appeal. (6) The costs of the first trial are to abide the outcome of the re-hearing and are to be determined by the retrial judge. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORTS - Appeal - assault and battery - apprehension pursuant to s 24 Mental Health Act 1990 (NSW) - whether the trial judge erred in failing to properly consider admissions made by the respondent in pleadings adverse to the ultimate finding - whether the trial judge erred in failing to properly consider medical records supporting the appellant's version of events. TORTS - Appeal - Assault and battery - damages - exemplary damages for the use of excessive force by police. Legislation Cited: Mental Health Act 1990 (NSW) - s 24, s 294 Category: Principal judgment Parties: Maxwell Thomas Willcocks (Appellant) State of New South Wales (Respondent) Representation: Counsel: G.A. Laughton SC, B. Loukas (Appellant) T.J. Ryan (Respondent) Solicitors: Michael J. Corbett (Appellant) Makinson & d'Apice (Respondent) File Number(s): 2011/139488 Decision under appeal Jurisdiction: 9101 Date of Decision: 2011-04-01 00:00:00 Before: Delaney DCJ File Number(s): 2010/101662 Judgment 1WHEALY JA: This is a concurrent hearing of a Summons seeking leave to appeal and the appeal itself. 2The proceedings arose out of an incident that occurred in the grounds of the Nepean Hospital on the evening of 24 February 2007. The appellant at that time was aged fifty-four years and lived at Cambridge Park. He had a long history of mental health issues, tracing back to when he was, between 1975 and 1976, a patient at the infamous Chelmsford Hospital under the direction of the equally infamous, late Dr Harry Bailey. 3On 24 February 2007 a call was received by St Mary's police. A phone call that was both threatening and obscene, it was reported, had been made to the operator at the Gambling Help Line. Investigations were instigated and a team under the direction of Snr Constable Lauren Ramage was organised at approximately 6pm. A number of police officers arrived at the appellant's home shortly thereafter. There was an issue at trial as to the precise sequence of events that occurred at or in the vicinity of the appellant's home but, in any event, there was no dispute that the police officers involved appropriately determined that the appellant should be apprehended and taken to Nepean Hospital for "scheduling" if the medical superintendent at the hospital so determined. (The power to apprehend and detain in these circumstances is dealt with in s 24 of the Mental Health Act 1990 (NSW) and the consequent powers to detain and examine are dealt with in s 28 to s 32 of the legislation.) 4Pursuant to these powers, the appellant was taken from his home and placed into the rear of a caged police vehicle. He was then driven to the Nepean Hospital. It was the intention of the police officers, including Constable Ramage, that he should be admitted to the Pialla Mental Health Unit which adjoined the Accident and Emergency Section of the hospital. 5By his Statement of Claim dated 22 February 2010, the appellant had alleged that on the relevant evening he had been assaulted by being forced to the ground, and by a police officer landing "heavily on the plaintiff's chest with his knees". His evidence at trial was that he had made an insulting remark to a female police officer after he had stepped out of the caged vehicle at the Nepean Hospital. He said he was taken by the shoulders and arms and forcibly taken to an area behind a wall, presumably out of sight of the general public. He was then pulled backwards onto his back and, whilst thus secured on the ground, he was held and punched by the two police officers who had brought him there. It is convenient to set out this portion of his evidence in full: "Q. Please continue. A. I was then held and punched into. Constable Ramage was to the right, slightly to the right but to my head area. There was another male constable to my left hand area and there was another male constable to my right area as I lay back. Q. And what happened then? A. The police officers began punching me. Constable Ramage punched me several times. When I say 'several', three to four times into the skull area. The police officer to my left punched me several times. When I say 'several times', three to four areas [sic]. That's conservative. It may have been more. I don't want to go over it. I'm not here about to blame police - Q. No, just doing the best you can - A. - for things they - Q. Just tell his Honour what happened. A. Yeah, that's conservative, but yeah, and the male officer, I continued to laugh. I didn't - I was full of anxiety. I didn't know what was happening. I was accused of perversion. I didn't know what I was doing at a hospital. Out of anxiety I was laughing. I continued to laugh. Then a male officer of heavy build jumped up into the air, brought his knees - brought his lower limbs into the horizontal and descended onto my chest on either side of my sternum with his knees. Q. And did that person say anything? A. No sir. Q. And did you say anything? A. No sir. Q. And did either of the other two officers do anything who were holding you? A. No sir, but my laughing stopped. Q. And was that the end of the assault upon you? A. I was then rolled over onto my front. My hands were brought to my back and I was handcuffed." 6The appellant then said that he was pulled to his feet and taken into the emergency department of the hospital. Eventually he was taken to bed 33, which is a secure area set aside for patients with suspected mental difficulties, and was examined in due course by medical staff. Exhibit H in the proceedings indicated that at 21.00 hours the appellant was complaining of "pain from left chest following knee to chest. PT states police attacked him because he was laughing". The appellant was kept as an involuntary patient overnight. However, he managed to leave the hospital the following morning, albeit without authorisation. The appellant then travelled to Newcastle and visited the Mater Hospital in that city. He sought subsequent medical help, complaining of pain in his front chest on either side of the sternum. A bone scan on 13 March 2007 showed fractures to the right fourth, fifth, sixth and seventh anterior ribs and to the left third and fifth anterior ribs, consistent with recent fractures of the anterior ribs bilaterally. 7Evidence was given at trial by a number of police officers. These included Snr Constable Ramage and the other officer who had been with her in the caged police vehicle that brought the appellant to the Nepean Hospital. This was Constable Glen Sparham. 8Both police officers gave a version of the incident at the Nepean Hospital which differed substantially from the description given by the appellant. It was common ground that there had been a scuffle of sorts outside the emergency section of Nepean Hospital. The police officers denied, however, that the appellant had been taken behind a wall and assaulted. Snr Constable Ramage said that, shortly after they commenced escorting the appellant towards the hospital, the appellant started laughing and resisting the officers' endeavours to take him to the admission point. When his resistance turned into something of a struggle, he was "leg swept" by Constable Sparham. This caused not only the appellant to fall to the ground, but also the police officers. The female officer's recollection was that the appellant fell on his front, face down, and that thereafter the police officers endeavoured to bring his hands back behind him so that they could handcuff him. The appellant resisted but eventually the handcuffs were placed on him. The evidence by Snr Constable Ramage included the following (T 29.10.10, p59, lines 20 to 45): "... I don't remember how it happened, but a leg was taken outwards. I believe it was behind him, so his leg pointed back behind him which then made him fall and subsequently us falling on top of him. Q. How many is us? A. Glen Sparham and myself and, like I said before, I didn't fall directly on top of him with all my body weight. I think Glen Sparham did because I remember my knees hitting the bitumen. Q. When he came to the ground, Mr Willcocks that is, do you remember whether he was on his back or on his front? A. He was on his front. Q. You then, you say, wrestled with him on the ground, is that right? Did you describe? A. Yeah, trying to gain control over him. He wasn't complying with us and, as I said before, he wasn't - he wouldn't pull his hand out from underneath him. Like, he was holding himself tightly in - at his chest which wasn't allowing me to get - pull his hand out and get him around - his hand behind his back in order for us to handcuff him." 9Snr Constable Ramage said that hospital security staff came out and assisted the two officers to raise the appellant from the ground and to escort him into the hospital. The officer was cross examined by the appellant's counsel. She denied that the appellant had been marched against his will behind a wall. She denied that one of the officers with her had jumped on top of the appellant, landing on his chest with both knees or lower legs. She insisted that there were only two officers involved in the scuffle, they being herself and Constable Sparham. She denied punching the appellant and giving him, as it was described in the questioning, a "work over". The officer accepted that the appellant may have been injured in the scuffle, but insisted that it happened simply because they all fell over together and that Constable Sparham's knee may accidentally have landed on his body. She maintained, however, that at all times the appellant was face down on the ground and at no time had he been lying on his back. At no stage was he turned over until after the handcuffs were applied and he was raised to his feet for the purposes of taking him to the hospital. 10Constable Sparham's evidence in chief was generally consistent with the evidence given by Snr Constable Ramage. He said that he had conducted a leg sweep and took the appellant to the ground. The evidence continued (01.11.10 T20.35-T21.20): "Q. You've said that you were holding onto him and you do a leg sweep, is that right? A. Correct. Q. Do you remember whether you leg swept him backwards or forwards or not? A. Onto his front. Q. What happened as you leg swept him? A. I still kept a hold of his arm and I landed on his ribs, with my knee. Q. One knee or two knees? A. One. Q. Do you recall which of your knees? A. It was my right knee." 11Constable Sparham said that he kept hold of the appellant's arm from the time he decided to leg sweep him to the time that they fell to the ground. He maintained that the appellant at all times was lying on his stomach. In addition, he claimed that when he had leg swept the appellant, the appellant had been facing away from him and thus he fell to his front. In his cross examination, he said that his knee landed in the lower left area of the appellant's back in that part of his rib cage. He did not think the appellant had been injured in any way by his action of falling on him with his knee. He denied that the appellant had been punched and that any person had jumped on the appellant, that is, on the front area of his body, with the use of knees. The pleadings 12The appellant's Statement of Claim asserted that the alleged punching by the police officers and the subsequent landing by a police officer on the appellant's chest with his knees constituted assault and battery. In the alternative, these acts were claimed to be negligent in that they breached the duty of care owed by the police not to injure the appellant. The breaches were said to be the application of excessive force and the use of unreasonable force. 13The Amended Defence included the following paragraph: "5. In answer to paragraph 5 of the Statement of Claim, the defendant: a) admits that a police officer landed on the plaintiff's chest with his right knee; b) otherwise denies paragraph 5 of the Statement of Claim." 14Paragraph 5 of the Statement of Claim was in these terms: "Thereafter the plaintiff was forced to the ground and punched to his head and upper body. When the plaintiff was on the ground a police officer landed heavily on the plaintiff's chest with his knees." 15The Amended Defence contained a statutory defence asserting that the police officers had been, in good faith, exercising a function conferred on them by or under the Mental Health Act 1990 and were not personally liable for any injury and/or damage caused by the exercise of that function: s 294 Mental Health Act 1990. The primary judge's decision 16The primary judge concluded that the plaintiff's action for assault and battery should fail. His Honour did not accept the plaintiff's evidence where it conflicted with the evidence of Constables Ramage and Sparham as to what occurred outside the hospital. As to this, his Honour said (at [77]): "... their overall recollection of the sequence of events persuades me that on the balance of probabilities the version given by the police was substantially correct, and where that version conflicts with that of the plaintiff, I prefer the police version. That version is that the plaintiff was taken from the back of the caged vehicle, began to walk across to the car park towards the entrance to the hospital, that he then ceased to be compliant and it was necessary for the police to grapple with him whereby he fell to the ground and was then handcuffed with the assistance of the security guards. I find that he was not taken behind any wall and I find that he was not struck by the knees of a heavily built police officer whilst he was face upward on the ground." 17In this connection, his Honour categorically rejected the submission that the appellant had been dragged behind a wall "out of sight of the security cameras". Evidence had been given by a security officer, Ms Lotonu'u. She had witnessed the scuffle on the hospital's monitor system. She had described a struggle in the car park area which involved the appellant pushing the police officers away. On her screen, she had seen the police facing towards the appellant and the appellant facing towards the police officers with his back to the screen. She said that "they were all holding each other and then went to the ground at the same time". She said that the appellant "went backwards and they went forwards with him". She then contacted her colleagues at the hospital to come and assist, and said that the appellant was handcuffed and at that point she observed that he was on his front. She was asked (T20.15 10.12.10): "Q. Do you remember seeing him - you described him before as falling backwards, do you remember how it was he came to be on his front? A. Well, by the time my officers attended he was already rolled over by the police officers." 18As to this evidence, however, the primary judge said: "78. In coming to this conclusion I have noted the evidence of Ms Lotonu'u that at one stage the plaintiff fell backwards. However, this aspect of her evidence was never pursued to ascertain whether or not he fell on his back and was then rolled over. In addition, the way the plaintiff expressed the incident was completely at odds with the evidence of all the other witnesses ... I reject the submission that he was dragged behind the wall out of sight of the security cameras." (Underlining added.) 19His Honour then addressed the important issue of whether the plaintiff had fallen on his chest or his back: "80. The difficulty with the submission that the plaintiff should be accepted in preference to the evidence of the police and the security guards is that there were at least five people who gave evidence that in the car park of the hospital the plaintiff had been turned on his chest, not on his back. In addition, Ms Lotonu'u said that she saw the event from the time that the plaintiff was taken from the back of the caged vehicle to when the other security guards came out to assist the police. Her evidence did not allow a finding to be made that at some stage the police took the plaintiff out of sight of the security cameras near a wall and assaulted him in the manner he asserted." 20His Honour then turned to assess the plaintiff's case from an overall perspective. I shall not set out the entirety of his Honour's reasoning but will focus on those paragraphs that are most relevant to the issues in this appeal. Those paragraphs are, it is agreed, [81], [85], [86], [87] and [88] of his Honour's decision. I shall set those out in full: "81. There is no doubt that the plaintiff was forced onto the ground. It is likely that as he was forced onto the ground he could have suffered an injury to his chest. This does not mean that I find that the fractures recorded on 13 March 2007 were caused merely by him being put on the ground by the police so they could handcuff him. What this means is that the plaintiff has not established on the balance of probabilities that at any time between leaving the back of the caged truck and entering the accident and emergency section he was ever placed on his back or that a heavily built police officer descended with his knees onto his chest. Constable Sparham could not be described as heavily built. Although Constable Sparham accepted that after performing the leg sweep he probably struck the plaintiff in the back with his knee, the position of contact that he identified does not correlate with the results of the bone scan which shows the position of the fractures to be much higher up the chest than Constable Sparham described. ... 85. In my opinion, the weight of the evidence is against a finding that the incident occurred as deposed by the plaintiff. In summary, I find that there were only two police officers at the hospital, that the plaintiff was not taken behind a wall, that he was not placed on his back, and that whatever occurred between himself and the police it did not involve any police officer using his knees from height above his chest to cause the injury complained of. 86. I accept that when he went into the hospital and was assessed by the hospital staff he complained of pain in his chest but the records do not support the submission that was made that he complained that someone had kneed him in the chest. Indeed, the contents of exhibit H quite clearly show that by the time that he was taken into the hospital he was no longer calm but was distressed, upset, uncooperative and somewhat delusional. In my opinion, this was not caused by the way in which the police acted towards him as he was taken to the hospital entrance, but can be put down to a significant mood swing that overtook him as he was being conveyed from the caged truck to the hospital entrance which changed his attitude from cooperative to resisting the police. 87. The plaintiff bears the onus of proof to show that the way he was treated by the police on the evening in question was an assault by the use of excessive force in attempting to subdue him due to erratic behaviour. In my opinion, he has not discharged this onus of proof. 88. Counsel for the plaintiff relied upon the report of Dr Drummond to suggest that the fractures could not have occurred without the plaintiff having been injured in the way in which he described. However, my reading of Dr Drummond does not suggest that he considers any particular amount of force was necessary and the report does not establish on the probabilities how the accident could have occurred." (Emphasis added.) 21His Honour concluded by considering the appellant's medical condition before the occurrence of the events involved in the proceedings. His Honour noted that the appellant had suffered from post-traumatic stress disorder with depression, hyper-vigilance and a tendency to isolation. He said that the appellant had "trouble with his recollection". While he accepted that the appellant truly believed that the events occurred as he had described them in his evidence, the primary judge was confident that his recollection was wrong. In those circumstances, he found that the appellant's claim must fail and that there should be a verdict for the defendant. 22In the event that he were found to be incorrect on the question of liability, his Honour turned to assess damages. In this regard, he accepted that, had the assault occurred as the plaintiff alleged, he would and did suffer an exacerbation of his post-traumatic stress disorder to the limited degree suggested by Dr Lewin, a psychiatrist qualified by the defendant and whose report was in evidence. In that contingency, he would also have found that the fractures detected on 13 March 2007 by the bone scan were probably connected with the use of knees by the police. In those circumstances he would have allowed the plaintiff $40,000 general damages, together with interest on $20,000 for a period of three years at two per cent. He would also have considered that the actions of the police were a serious disregard of the plaintiff's rights and required condemnation by the award of exemplary damages. He would have awarded the plaintiff $15,000 for exemplary damages. Grounds of appeal 23The appellant relied on a number of grounds of appeal in the Notice of Appeal as originally filed. However, at the hearing, ground 7, which raised questions concerning the admissibility of the evidence of Ms Lotonu'u, was abandoned. In addition, the appellant abandoned ground 10. This had asserted that the primary judge erred in law by not considering the alternative negligence claim. 24In relation to the remaining grounds of appeal, these were distilled at the hearing into the following questions on the liability issue. 25Question one: did the primary judge err in failing to adequately take into account the admission made by the respondent in the pleading that a police officer had landed on the appellant's chest with his right knee? 26Question two: did the primary judge err in finding that the hospital records did not support the proposition that the appellant had complained "that someone had kneed him in the chest"? 27Question three: was it an error for the primary judge to find that the medical report of Dr Drummond did not address the degree of force that was necessary to cause the fractured ribs and did not establish on the probabilities how the accident might have occurred? 28There was a fourth question raised relating to the assessment of damages. In short, it was submitted that his Honour's assessment of damages was appellably inadequate. Resolution 29In my opinion, each of the three liability errors asserted has been established. The result, regrettably, is that there must be a new trial. 30The respondent's submission that "a police officer landed on the plaintiff's chest with his right knee", unless withdrawn, stood squarely in the way of a finding that the police officer's knee (or knees) "landed" on the plaintiff's back. In fairness to the primary judge, the admission was mentioned at the outset of his decision ([2]), but it was not thereafter mentioned or discussed. Indeed, by [77] it seems the admission was altogether overlooked. That situation persisted throughout the remainder of the reasoning. 31Mr Ryan, who appeared for the respondent, argued that the findings in [77] and [81] were concentrated on the notion that the appellant had not been "placed on the ground" chest upwards by the police, and that he was not struck by the knees of "a heavily built police officer" while he was on the ground. 32Read fairly, I think it is clear that his Honour had reached the conclusion that the appellant was injured, as was suggested by Snr Constable Ramage, by the knee of Constable Sparham. However, he neglected the possibility that this injury was caused by the police officer landing on the appellant's chest. The respondent cannot escape from the fact that a finding that the appellant was struck by the police officer's knee on his back is inconsistent with the admission made in the pleadings. 33In fairness to the primary judge, it must be said that the manner in which the case developed probably resulted in the significance of the pleading being overlooked by everyone. Indeed, Mr Ryan accepted that neither of the parties pointed out the inconsistency between the pleadings and the evidence. 34Secondly, Mr Ryan argued that his Honour's findings in the latter part of his decision were no more than a conclusion that the appellant had failed to discharge the onus of demonstrating the way he had been treated by the police on the evening in question. In particular, the appellant had failed to prove that the police behaviour involved the use of excessive force in their attempts to subdue him. There is some support for Mr Ryan's submission in [87] of the primary judge's decision. However, it is inevitable that the findings by the primary judge at [77], [85] and [86] must be seen to fly in the face of the admission in the pleadings. They are also inconsistent with the nature of the appellant's injuries, as revealed in the bone scan, which were clearly to his anterior ribs, being those attached to the sternum which is on the chest side of his rib cage. 35The consequence of this is that the appellant has not had the benefit of a consideration by the primary judge as to whether the circumstances surrounding the "landing" by Constable Sparham on the plaintiff's chest involved the use of excessive force so as to constitute an assault. Was it simply an accident? Or was it something more deliberate and intentional? That issue, based on the alternative scenario, has not been determined. 36This position is, in my opinion, exacerbated by the second and third errors. 37As to the second, there is no doubt that the hospital records do support the submission that the appellant's complaint at the hospital was that "someone had kneed him in the chest". The notes (Exhibit H) record the following complaint at 21.00 hours: "... pain from left chest following knee to chest. PT states police attacked him because he was laughing ..." 38Mr Ryan concedes that the primary judge's statement at [86] was incorrect. 39As to the third, Dr Drummond had said in his first report: "The costochondral junction fractures demonstrated on the bone scan are consistent with a compression force on the anterior chest. The forceful squatting with compression by a Constable's knees on several occasions is likely to have produced the costochondral fractures." 40The reference by Dr Drummond to "on several occasions" was an error as a result of the history given by the appellant to Dr Drummond on 15 February 2010. The appellant's solicitors clarified the situation with Dr Drummond and he provided a second report on 12 July 2010. He corrected the history and expressed the following opinion: "This does not change my diagnosis or opinion expressed in my report of 17 February 2010. ... The forceful squatting with compression by a Constable's knees is likely to have produced the costochondral fractures." 41The primary judge held ([88]): "However, my reading of Dr Drummond does not suggest that he considers any particular amount of force was necessary and the report does not establish on the probabilities how the accident could have occurred." 42Mr Ryan argued that Dr Drummond's reports did not assess the degree of force that would have been necessary to cause the injuries. However, the statements by Dr Drummond do, I consider, provide support for the proposition advanced at trial by the appellant that the fractures could not have occurred without the appellant having been injured by the officer's knee (or knees) falling directly upon his upper chest area: cf the last sentence of [81] of the primary judge's reasons set out at [20] above. 43When the three errors are taken into account, it seems that there was a version of the incident which, within the pleadings, provided support for the appellant's case that an unjustifiable assault had taken place. This was so even if the appellant's precise version were rejected. It is true that the appellant's version was not accepted by the primary judge. It is also true that the primary judge made findings that, in a number of respects, were adverse to the appellant. In my opinion, those findings did not however preclude consideration of the alternative scenario, which was supported both by the admission in the pleadings and the objective evidence of Dr Drummond and Ms Lotonu'u. 44In relation to the evidence of Ms Lotonu'u, it is important that she had said that the appellant fell on his back with the police officers falling towards him at the initial point where the injury was probably sustained. Her evidence was accepted by the primary judge. The witness also said, as I have indicated earlier, that after that initial fall, the appellant was rolled onto his front so that the police officers could ultimately handcuff him. This evidence, which does not appear to have been disputed, was, it seems, overlooked by the primary judge when (at [78]) he said: "This aspect of her evidence was never pursued to ascertain whether or not he fell on his back and was then rolled over." 45The errors which I have identified require that there be a new trial. At such a trial it will still be necessary for the retrial judge to determine whether excessive force was used or whether the injury was no more than the consequence of an accidental collision caused while the police officers were carrying out functions under the Mental Health Act. 46It is impossible to say that the errors I have identified did not, at least to some degree, colour his Honour's views of the issue as to whether the appellant had made out his case. Damages 47Mr Laughton SC, who appeared for the appellant on the hearing of this appeal, argued first, that the primary judge had paid insufficient attention to Dr Drummond's diagnosis in his report of 17 February 2010. Secondly, he argued that insufficient regard had been had to the psychiatric report by Dr Lewin. 48In my opinion no error has been demonstrated in his Honour's contingent assessment of compensatory damages. Dr Drummond made it clear that, at the examination of 15 February 2010, the appellant was experiencing "only mild discomfort". He was said to be normal "functionally". There was no "persisting tenderness or objective finding of disability". Dr Drummond thought this state of recovery was likely to continue into the future without change. 49Dr Lewin in his report noted that the appellant had been receiving treatment for post-traumatic stress disorder as a result of earlier events which had occurred in 2005. Following the February 2007 incident, the appellant had reported acute symptoms relating to police, avoidance symptoms and symptoms of anxiety which reflected his version of events which occurred on 24 February 2007. To that extent, Dr Lewin accepted that the incident appeared "to have given rise to a transient exacerbation". However he added: "It is difficult to determine whether Mr Willcocks would have experienced the current level of disability and symptomatology had the events of 2007 not occurred. It is conceivable that Mr Willcocks would have continued to have some psychiatric disturbance on a chronic basis upon the basis of the pre-existing factors alone ... Irrespective of the events of 2007, it is likely that Mr Willcocks will require some psychiatric care on an intermittent basis for the rest of his life." 50There is insufficient doubt as to the correctness of his Honour's determination of the contingent issue of compensatory damages to grant leave. I would not be prepared to grant leave to appeal on that aspect of the damages issue. 51The primary judge, however, also made a contingent award of $15,000 for exemplary damages. In my opinion, leave should be granted in respect of this element of the contingent award for damages. 52The primary judge made a contingent award of exemplary damages on the assumption that the appellant had made out his principal case, as I have summarised it in paragraph 5 (above). This is to say that his Honour made the contingent award on the assumption that, immediately after the appellant arrived at the Nepean Hospital, the two police officers forcibly took him to an area behind a wall where they deliberately held him down and punched him. In addition, on the appellant's case, the male police officer (or a third police officer) forcibly brought his knees down onto the appellant's chest, fracturing his ribs. 53On a retrial, the appellant may, despite his earlier failure, succeed in establishing his principal case. If that were to occur, I see no error in the award of $15,000 by way of exemplary damages. However, it is possible that the appellant may succeed in establishing that he had been unlawfully assaulted even if the retrial judge does not accept the entirety of his evidence. For example, the retrial judge may find that the appellant was not taken behind the wall and was not punched, but nonetheless was unlawfully assaulted when one of the police officers jumped, landed or deliberately and intentionally fell on the appellant's chest. Findings to that effect would be within the case pleaded by the appellant. 54On the basis of findings of that kind, the appellant would be entitled to an award of compensatory damages but it may or may not be appropriate for the retrial judge also to award exemplary damages. Whether such an award is warranted and, if so, the quantum of any such award would depend upon the precise facts found by that judge. 55Before stating the orders that I consider are appropriate, I would wish to add this: the issue that remains to be determined is a very narrow one. Was the injury sustained by the appellant on 24 February 2007 an unfortunate accident occurring in the carrying out of appropriate functions by police officers under s 24 of the Mental Health Act? Or, was it a deliberate and intentional assault upon the appellant, the injury being occasioned by the use of excessive force? The damages found by the primary judge, although not insignificant, are moderate in scale. This case plainly calls for a sensible resolution, either by negotiation between the parties or by the pursuit of mediation. The expense, inconvenience and personal distraction to the parties, and the inconvenience to witnesses to be called necessitated by a further hearing, should be avoided, if at all possible. I would exhort the parties to give urgent consideration to resolving the matter without a further hearing. Orders 56I propose that the following orders be made: (1) Leave to appeal is granted, but limited to the issues of liability and exemplary damages. (2) The appeal is allowed. (3) Set aside the orders made by the primary judge on 31 March 2011. (4) The proceedings are remitted to the District Court for a new trial on the issue of liability and, if necessary, exemplary damages. (5) The respondent is to pay the appellant's costs of this appeal. (6) The costs of the first trial are to abide the outcome of the re-hearing and are to be determined by the retrial judge. 57SACKVILLE AJA: I agree with Whealy JA. 58TOBIAS AJA: I agree with Whealy JA. ********** Amendments 30 March 2012 - Wherever appearing in these three paragraphs, replace the word "respondent" with "appellant". Amended paragraphs: 52, 53, 54 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. Decision last updated: 30 March 2012