District Court New South Wales Medium Neutral Citation: Justin McMaster v State of New South Wales No. 12/4882; Georgia Karakizos v State of New South Wales No. 12/27695; Kayla McMaster v State of New South Wales No. 12/27725 [2013] NSWDC 244 Hearing dates: 9 September 2013 - 20 September 2013 Decision date: 13 December 2013 Jurisdiction: Civil Before: Mahony SC DCJ Decision: Verdict and judgment for each plaintiff. For Orders see [272] - [274] Catchwords: Intentional tort; battery; Police operational immunity. Legislation Cited: Civil Liability Act 2002 Law Reform (Miscellaneous Provisions) Act 1944 Evidence Act 1995 Limitation of Actions Act 1958 (Vic) Cases Cited: State of New South Wales v Klein [2006] NSWCA 295 ACT v Crowley & Anor [2012] ACTCA 52 Sullivan v Moody (2001) 207 CLR 562 Hill v Chief Constable at West Yorkshire [1989] AC 53 Van Colle v Chief Constable of Hertfordshire Police [2009] AC 225 New South Wales v Paige [2002] NSWCA 235 Tame v State of New South Wales (2002) 211 CLR 317 Stingel v Clarke (2006) 226 CLR 442 Williams v Milotin (1957) 97 CLR 464 State of New South Wales v Tyszyk [2008] NSWCA 107 Zecevic v DPP (VIC) (1987) 162 CLR 645 Browne v Dunn (1893) 6 R. 67 H.L Scala v Mammolitti (1965) 114 CLR 153 Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 Underhill v Sherwell [1997] NSWCA 325 R v XY (2010) 79 NSWLR 629 Dean v Phung [2012] NSWCA 223 Crimmins v Stevedoring Industry Finance Committee (1999) CLR 1 D'Orta-Ekenaike v Victorian Legal Aid (2005) 223 CLR 1 State of New South Wales v Tyszyk [2008] NSWCA 107 Cran v New South Wales (2004) 62 NSWLR 95 Brooks v Commissioner of Police of the Metropolis (2005) 1WLR 149 State of New South Wales v Riley (2003) 57 NSWLR 496 New South Wales v Koumdjiev (2005) 63 NSWLR 353 New South Wales v Ibbett (2005) 65 NSWLR 168 New South Wales v Delly (2007) 70 NSWLR 125 Ashley v Chief Constable of Sussex Police (2008) 1AC 962 State of New South Wales v Spearpoint [2009] NSWCA 233 Fontin v Katapodis (1962) 108 CLR 177 Cook v Beal (1699) 91ER 1014 Medlin v State Government Insurance Commission (1995) 182 CLR 1 State of New South Wales v Moss (2000) 54 NSWLR 536 New South Wales v Ibbett (2006) 229 CLR 638 Uren v John Fairfax & Sons Pty Limited (1966) 117 CLR 1118 Lamb v Cotogno (1988) 164 CLR 1 XL Petroleum (NSW) Pty Limited v Caltex Oil (Australia) Pty Limited (1985) 155 CLR Merest v Harvey (1814) 128 ER 761 Texts Cited: Who is telling the truth?, Psychology, Commonsense and the Law, (2006) 80 ALJ 655 Halbury's Laws of Australia Assessment of Damages for Personal Injury and Death", 4th Ed, Luntz Mayne & McGregor on Damages, 12th Ed, (1961) Category: Principal judgment Parties: Justin McMaster - Plaintiff (1st matter) Georgia Karakizos - Plaintiff (2nd matter) Kayla McMaster - Plaintiff (3rd matter) State of New South Wales - Defendant Representation: J Sheller with W Potter - Plaintiffs P Saidi - Defendants Greg Walsh & Co Makinson D'Apice File Number(s): 12/4882, 12/27695, 12/27725 Publication restriction: Nil Judgment INDEX Page No. Introduction 4 Pleadings 6 Plaintiff's Evidence in Respect of Liability 7 (1) Evidence of Justin McMaster 7 (2) Evidence of Kayla McMaster 14 (3) Evidence of Georgia Karakizos 21 (4) Evidence of Jasmin Potts 27 Defendant's Evidence on Liability 30 (5) Senior Constable Stewart Stewart Chang 30 (6) Detective Senior Constable Scott Whale 30 (7) Constable John Fanning 31 (8) Constable Natasha Kleinman 39 Other Evidence on Liability 43 Defendant's Submissions on Liability 44 Plaintiff's Submissions on Liability 50 Issues to be Determined 53 Factual Findings 54 Did the Shooting of Justin McMaster Constitute Battery? 58 The Plaintiff's Alternative Case in Negligence 59 Does the Police Operational Immunity Extend to Intentional Torts 62 The Defence of Self-Defence 64 The Defence of Necessity 67 Contributory Negligence 67 Effect of Alleged Admissions Against Interest by Justin McMaster 68 Determination in Respect of Justin McMaster 68 The Claims brought by Georgia Karakizos and Kayla McMaster 69 Assessment of Damages - Justin McMaster 71 The Plaintiff's Claims for Aggravated and Exemplary Damages 77 Assessment of Damages - Georgia Karakizos 80 Assessment of Damages - Kayla McMaster 84 Orders 87 Introduction 1These proceedings arise out of a home invasion in the early hours of 26 September 2011 of premises at 4 Holmes Street, Colyton. Those premises at the time were occupied by the plaintiff, Mrs Georgia Karakizos, her partner, Mr Paul Sciberras and six children including the plaintiff, Kayla McMaster, who is the daughter of Mrs Georgia Karakizos and Mr Brett McMaster. 2Mr Justin McMaster was the son of Mrs Georgia Karakizos and Mr Brett McMaster, and he lived in a granny flat at the rear of the premises with his girlfriend, Jasmin Potts. 3At approximately 12.45am on 26 September 2011 three offenders entered the premises and initially subjected Mrs Karakizos and Mr Sciberras to violent and vicious assaults. Both were able to escape in circumstances described below. The offenders then held Kayla McMaster, who at the time was seventeen years of age, at knifepoint and subjected her to a violent assault. 4Mr Justin McMaster had been asleep in the granny flat. He was awakened by his partner, Jasmin Potts, who had heard screaming coming from inside the premises. He went to investigate and inside he identified two men who he knew from the local area, one of whom was holding his sister from behind with a knife across her throat. He was told to obtain money or she would be hurt. Justin first searched the premises for money, then left the premises to alert the neighbours and then returned to the granny flat where he armed himself with a strip of aluminium curtain tracking which was approximately one-and-a-half metres in length. He then left the granny flat and proceeded down the driveway towards the front of the premises. 5In the meantime, the offenders had taken Kayla McMaster to the front yard and two of them were in the course of subjecting her to a sexual assault. Fortunately, they became aware of the approach of a Police vehicle, and they decamped the scene. At this time, Mrs George Karakizos was hiding in the front of the next-door property, 6 Holmes Street. As the Police vehicle approached number 4 Holmes Street, Kayla McMaster ran down Holmes Street towards that vehicle and stopped it at approximately the boundary of number 6 and number 8 Holmes Street by tapping on the driver's window. Shortly thereafter, her mother, Georgia, emerged from her hiding place at the front of 6 Holmes Street and approached the Police vehicle. That vehicle was driven by Constable John Fanning and Constable Natasha Kleinman was in the passenger seat. Both Police officers alighted from the vehicle to speak to Kayla and her mother, to find out what had occurred. That discussion took place on the roadway of Holmes Street, outside number 6 Holmes Street. It is fair to say that both Mrs Karakizos and her daughter were visibly upset and somewhat hysterical, and were having difficulty communicating to the officers what exactly had occurred. 6What happened next gives rise to the three sets of proceedings. Justin McMaster emerged from the front yard of number 4 Holmes Street carrying the curtain rod. With him, and slightly behind him, was Jasmin Potts, who was carrying a knife. The facts of the matter are very much in dispute, however, Justin was calling out "Where's my sister?" and ran down Holmes Street in the direction of the Police vehicle. Jasmin followed Justin, but she was on the nature strip. The street lighting was not good, and as Justin approached the Police, he was told to stop and drop his weapon. Justin McMaster, who had not dropped the curtain rod he was carrying, in his left hand, was shot by Constable Fanning, who had discharged a single round from his service pistol, striking Justin in the stomach. 7Justin McMaster claims damages for personal injuries he suffered as a result of an assault and battery, and trespass to the person by way of the shooting of him by Constable Fanning. Alternatively, he has pleaded that his injury was caused by the negligence of the Police officers for whom the defendant is vicariously liable. In addition to compensatory damages, he claims aggravated and exemplary damages. 8Mrs Georgia Karakizos and Kayla McMaster claim damages for nervous shock arising from witnessing the shooting of Justin. 9On 27 July 2012 an order was made by Judge Taylor that the proceedings be heard together, with evidence in each proceedings being evidence in the other proceedings. Pleadings 10Justin McMaster relies on an Amended Statement of Claim filed on 27 January 2012. His claim is pleaded as a cause of action in assault and battery, and trespass to the person, and alternatively, in negligence. He seeks damages including aggravated and exemplary damages. The defendant in that case relies on the defence filed on 28 March 2013. The defendant denies the plaintiff's claims, and denies that it owed any duty of care to the plaintiff. It also pleads Part 7 of the Civil Liability Act 2002, and in particular ss 51-53 in respect of a defence of self-defence. The defendant also pleads contributory negligence against the plaintiff. 11At the commencement of the trial, the claim for damages brought by Georgia Karakizos was pleaded by way of a Statement of Claim filed on 27 January 2012. Kayla McMaster's claim for damages relied on an Amended Statement of Claim filed in 2013. During the hearing, notice was given by Counsel for the plaintiff that leave was to be sought to amend both pleadings and that application was made on Tuesday, 17 September 2013. On 18 September 2013 I granted leave to Georgia Karakizos to amend her Statement of Claim by filing instanter an Amended Statement of Claim and I granted leave to Kayla McMaster to amend her Amended Statement of Claim by filing a Further Amended Statement of Claim - see separate judgment dated 18 September 2013. 12Both claims of Georgia Karakizos and Kayla McMaster are brought pursuant to s 4 of the Law Reform (Miscellaneous Provisions) Act 1944. Both claim damages for nervous shock suffered by them arising out of the shooting of Justin McMaster by Constable Fanning on 26 September 2011. It is common ground that if the claim brought by Justin McMaster fails, then these two claims must necessarily fail. 13I will deal first with the question of liability in respect of each cause of action, and then damages. The issues that arise in the case are somewhat complex, and require a detailed analysis of the evidence. Evidence in Respect of Liability (1) Evidence of Justin McMaster 14Justin was born on 17 February 1992 and had left school in year 12 before completing the Higher School Certificate. He had commenced a relationship with Jasmin Potts in March 2010 and by November 2011 he and Jasmin were living together in the granny flat at the back of 4 Holmes Street Colyton. He was nineteen years of age and had worked in a number of casual unskilled jobs. On 26 September 2011 he was due to commence work at Mario's Pastizzi, picking and packing pastries. 15Justin and Jasmin were asleep in the granny flat in the early hours of 26 September 2011 when he was woken by Jasmin who had heard screaming inside the house. Justin first thought it was his mother and Mr Sciberras arguing, but was then told by Jasmin that she could hear his sister Kayla screaming and he got up to investigate. 16Justin entered the house through the back door and walked through the kitchen into the hallway when he saw a man known to him as Chris Bailey standing in the hallway. He then looked into his sister's room and saw another person he knew as Dean Peterson there holding a knife to Kayla's throat. He gave the following evidence in chief: "Q: Do you recall saying something, or doing something? A: I looked at him and I said, 'Dean, bro'. Q: Did he say anything? A: Yeah, he replied, 'My name's not Dean; it's Jamal'. Q: Jamal? What happened after that? A: I just agreed with him. I begged him not to do nothing and he said to me to go get money, or she's gone. Q: After that, did you do something? A: Yeah, I went looking for money. I begged him not to do anything and I went looking for money." 17Justin then looked in his mother's bedroom in the garage but could find no money. He ran to the granny flat and warned Jasmin that there were home invaders with a knife to Kayla's throat. He told her to lock the door, to stay inside and to not call the Police. He then ran back into the house and again saw Dean Peterson holding Kayla. He then left the house again and ran to the neighbouring property at number 6 Holmes Street. He then ran back to the house and spoke again to Dean Peterson and asked him to do nothing while he continued to look for money. After looking again in his mother's room, he went to the front yard of the property where he saw a third person who tried to attack him with a wheel brace. He avoided the attack and ran to the back of the property and then returned to the granny flat. He then grabbed a length of curtain rod, approximately one-and-a-half metres long, and left the granny flat and proceeded down the driveway where he jumped the fence. He had heard his sister yelling from the front yard "I'm free, somebody help me". 18Justin ran along the driveway yelling, "Where's my sister, where's my sister?". His last recollection is being approximately three-quarters of the way along the driveway and running on a grass strip. 19Justin's next recollection was getting picked up off the road and carried to the nature strip after he was shot. He had no recollection of how he was holding the rod as he was running. He did recall that the Police officer named John picked him up and carried him to the side of the road, and was begging him not to die. 20In cross-examination Justin said he had no memory of coming onto the roadway. 21Justin agreed that after the event each of the family members had gone through the events of the night together, indicating what each did or saw. His mother had told him that before he was shot he had already placed the curtain rod on the ground. 22Justin had no recollection of his mother saying the words "That is my son" to the Police officers before he was shot. He did remember however, his sister saying to the Police officers "That's my brother" before he was shot. His explanation was that he recalled bits and pieces, that his memory was "blurry" or "fuzzy" and that he could not remember a lot of things. 23Justin's recollection of words spoken by his mother was only based on what she had told him subsequently. He acknowledged that he had been presented with a highly dangerous situation and that he was panicking at the time. He believed that if he did not do something quickly then his sister may lose her life. He was also concerned about his mother's welfare, and the safety of both his mother and Jasmin. 24Justin acknowledged that he was trying to somehow resolve this dangerous situation and the he had told his neighbours not to call the Police because he had a genuine fear that his sister was going to have her throat slit. 25Justin was asked as follows: "Q: I want to suggest to you that about 9.25am on that day you said to the Police Officer, 'Please don't let nothing happen to the cop that shot me. It was an accident, it wasn't his fault. I ran at him, I was carrying that thing at the top of the blinds and, bang, I got hit and went down'. First of all, do you recall make such a statement? A: No. Q: Such a statement that, 'Please don't let nothing happen to the copper than shot me' that was how you felt at the time when you spoke to this Police Officer, isn't it? A: I would not have a clue; I don't remember. Q: You've got no recollection at all of making these statements? A: No. Q: And no recollection of saying this was an accident, it wasn't his fault - the policeman's fault? A: No." 26It was suggested that those statements had been made to a Police officer by the name of Chan who was guarding Justin whilst he was in hospital. Later on the same day he was interviewed by another Police officer, Detective Sergeant Scott Whale. He gave the following evidence: "Q: The version you gave a Police Officer was, 'I grabbed it', that is referring to the top rail piece, 'and I jumped my front fence, and I was running, saying 'Where the fuck is my sister? Where the fuck is my sister?' All of a sudden I heard a pop and I was holding my stomach. One of the cops shot me thinking I was a bad guy. Q: Alright? Now first of all, do you recall giving that version of events, at least? A: No. Q: Alright. Then the Police Officer said to you, 'Okay, what I would like to do is examine that just for a minute. How would you describe the lighting out on the street?' and you said 'Oh, I reckon that bit was an honest mistake from the copper, if that's what you're asking, it was an honest mistake.' Do you remember firstly giving that? A: --No. Q: Is that your recollection today, that it was an honest mistake from the copper who shot you, it was an honest mistake? A: No. Q: No? You feel differently today, do you? A: Yes. Q: I'll go on. You were asked 'Why do you say that?' and you said, 'Because I was running around like a psycho, yelling at the top of my lungs "Where the fuck is my sister?" and I had a weapon in my hand', do you recall saying that? A: No, I don't recall saying that. Q: My suggesting that to you, does that bring back any memory or recall of what you were doing? A: No. Q: And you went on to tell the Police Officer, 'I was expecting those people to still be with my sister, not the cops'. That is, you were expecting the perpetrators to have been there with your sister and not Police Officers? A: I don't know. Q: And then further on you told the Police Officer in response to a question, 'Okay, and when you were running, how were you holding the' and the question was not finished and you said, 'Up above my head'. That is, I'm suggesting the reference is to the curtain rod? A: I don't know. Q: And you said, 'Waiting for them, see my sister with a knife to her throat, I was going to take his head off'? A: I don't know. Q: The Police Officer says 'Okay. I was going to say what was going through your mind at that point' and you said 'free my sister'. Now, that's the version of events that I want to put to you, that you gave. One of the first, if not the first version of events which you gave in relation to the incident on the very day itself to a Police Officer. Do you understand? A: Yes ..." 27Justin was further asked as follows: "Q: Let me put this suggestion to you, that as you were running - I'll put this to see if it prompts your memory - as you were running towards the Police Officer - I withdraw that. As you were running towards where your sister was, you had no knowledge as to who the other person were in her immediate vicinity, did you? A: I didn't see anybody with my sister, no." 28Justin went on to say that he did not see the Police car, and did not hear the Policeman yelling out something to the effect of "Stop, stop". He was then asked: "Q: With the curtain rod in your hand, that meant that if need be, any person that you believed was a perpetrator in the nearby vicinity of your sister, you were prepared to take their head off. Correct? A: No, not anybody, but if need be and my sister was at the point where she was going to get hurt, I would have used it, yes." 29He had no independent recollection of anyone on the roadway yelling out to him and saying to him "Stop, stop, put the rod down". 30Justin gave evidence that he had no recollection as to how close he was to any person at the time he was shot. Nor did he know what he was doing before he was shot. He did however recognise his sister, but agreed that it was fair to say that that was based on the fact that he was told by her and others that she was there. He had however heard her yell out the words "I'm free now, someone help me". He agreed it was a dark night and that it would be difficult to make out the identity of a person standing twenty to thirty metres away. At the time he came onto the roadway he did not know where his sister was, whether the Police had arrived yet or not and whether the perpetrators were still there or not. 31It was further put to the plaintiff that he had told Dr Roberts, Psychiatrist, on 12 March 2012 that it was his belief that the Police Officer had shot him in error or by accident, but he had no recollection of that. 32Justin was also cross-examined on evidence he had given at the criminal trial held in the District Court on 15 April 2013. He confirmed that he had given evidence that he saw his sister standing on the roadway and that she was by herself and he ran towards her. He agreed that he had told the Court that before he got shot he had seen no one other than his sister. Immediately he was shot he looked around and saw his mum, his sister and the Police. 33Justin accepted that he had given evidence that he had not put down the curtain rod at the time when he was shot, the reason being that he did not see or hear the Police. 34Justin also agreed that he gave the following evidence at the criminal trial: Q: You don't blame the Police Officer, do you know, that shot you? A: I can understand where he came from, yeah. Q: It would have been a confronting situation for him? A: Yeah, he would have been in a bit of a panic, yeah. Q: And you said so, didn't you, at the hospital when you were taken there? Did you say something along the lines of 'Please, don't let anything happen to the cop'? A: I'd say so if that's what it says in my statement. Q: Do you remember saying those words? A: No." (2) Evidence of Kayla McMaster 35Kayla was seventeen years of age in September 2011. She had finished school in year 11 in 2009 and was working as a sales assistant in a delicatessen at Foodworks Store in St Clair. 36On Sunday night, 25 September 2011, she went to bed at approximately 10pm and was woken by screaming. She heard her mother's voice and got up and went to the front of the house where she saw her mum on the front lawn being kicked by a number of men. She ran down the front steps and approached the men and asked what was happening. She was then grabbed by one of the men who put a knife to her throat and took her back into the house. She was taken into her mother's bedroom and was told to find something for the invaders. That person then held a knife to the baby, Dane, and said, "If you run he's going to cop it". She tried to get him out of the room and away from the baby and so they went into Kayla's room. He was still holding the knife to her throat when he asked for her phone. At that point Justin entered the room. The intruder, Dean Peterson, then tried to take her out to the front of the house, which she resisted. She was pulled down the stairs and onto the grass near the nature strip where she was told that two of the men were going to rape her and she was thrown to the ground. Dean Peterson held a knife to her throat and pushed her to the ground and placed the knife between her legs on her inner thigh. She was begging him to stop when a Police van drove past the street. Shortly after that, Dean Peterson and the other men decamped and she saw the Police coming up Holmes Street, from beyond number 6. She ran to the Police vehicle and it came to a stop on the boundary between number 6 and number 8 Holmes Street. 37Kayla tapped on the driver's door and was screaming for help. The male Police officer, who was the driver of the vehicle, got out and a female officer got out from the passenger seat. Kayla was speaking to the Police officers on the road and was panicking. At that time, her mother appeared and was also screaming and crying. Kayla observed blood on her mother's face. 38The Police Officers were trying to ask Kayla and her mother what was happening. 39Whilst Kayla was talking to the Police, she heard Justin screaming "Where's my sister". She turned towards her right and saw Justin running out onto Holmes Street from their house and running in their direction. The female Police officer was closest to the gutter, but standing on the road. Kayla was close to the male Police Officer, who was closer to the centre of the road. Kayla saw that Justin had something long and that he was holding it with both hands. His left hand was holding the item at the height of his stomach and his right hand was holding it at the height of his shoulder. It was about a "yard" long. She was asked: "Q: How would you describe his movements? Was he coming quickly or slowly? A: No, I don't remember a fast movement. I think it was slow ... Q: I asked you about how he came towards you. What was your answer? Did he come quickly or did he come slowly? A: No, it was a slow motion. Q: Was it type of running or walking? How would you describe it? A: Like, he had ran out and then once he'd seen people, he kind of had stopped. Like if he took a few steps forward or something, I'm not sure but. Q: When you say he stopped or took a few steps forward, do you have a recollection that he stopped completely or are you talking about a slowing down in his motion towards you? A: I can't remember exactly. Q: ...Did you observe him continuing to say things on the roadway as he was coming towards you? A: Yeah, he kept saying things. Q: What sort of things do you recall him saying? A: The main thing I remember him saying is "Where's my sister?" 40Kayla then gave this evidence in chief: "Q: When you say Justin was coming towards you, was he coming at you, to your observation, or was he coming at someone else in what you describe as a scattered group or can't you tell? A: No he was just running. I don't know who he was coming at. Q: You described how you saw him holding what is a curtain rod? A: Yes. Q: Did you see any change in the way he was holding the curtain rod as he came towards you? A: No. Q: While he was coming down the road do you recall yourself saying anything? A: Yeah, like, I was trying to let him know that I was here. Q: Can you tell us what the words were that you said? A: I can't remember word for word. Q: You think you were talking or saying something to him? Is that right? A: Yeah. Q: You've got three people around you? A: Mm-hmm. Q: Do you recall trying to say anything to any of those people around you? A: I was saying, "It's my brother" to the Police and then I was telling Justin like, "I'm here". 41Kayla then gave this evidence: "Q: Did you hear anything said by any of the other three people around you at this point as Justin is coming down the road? A: No I can't remember. Q: Tell us what your recollection is after that point? You talked about Justin coming towards you. You talked about how he is holding the curtain rod. You talked about what you recall you were saying to him and what you recall you were saying generally. Tell us then what happened? A: It all happened, like, really quickly, but I remember when I was looking at Justin at one point I remember just seeing the taser, like, a red light thing on him from the taser, and I remember mum was screaming saying things. Then I remember seeing Jasmin. 42In respect of Jasmin, Kayla was asked as follows: "Q: When you saw Jasmin, what was she doing the first time you saw her? A: She was screaming and she had a knife in her hand. Q: So you were able to see a knife in her hand from where you were standing, is that right? A: Yes. Q: Can you remember whether it was in her right hand or her left hand? A: I think in her right, I think. 43She was then asked: "Q: If you tell the Court what happened then or what is your next recollection? A: Jasmin was screaming and in that time I had walked over to Jasmin to tell her to put the knife down and then I turned around and I saw Justin standing there and then there was this panic and mum was saying like "He's shot" and then I remember me turning around to mum, "No, no he was tasered", because from seeing that I didn't hear the gunshot. Then Justin said "You shot me", and then I saw the male Officer, like turned around and I looked and like we started panicking again and then seen the male Officer like with that like confused look on his face and then he had gone up to assist Justin. 44Following the incident Kayla gave evidence that her mother said "You shot my boy". 45The male Police officer then asked Jasmin to go and get a towel. Justin was on his knees and his hands were holding his stomach. Both Kayla and her mother Georgia were crying and screaming. Kayla saw the Police officer pick Justin up and place him on the nature strip. Jasmin came back with the towel and it was placed on Justin's stomach where he was shot. 46In cross-examination Kayla agreed that she was held hostage for in excess of half an hour, that she was placed in fear of her life and held a very real fear that the intruder would also carry out his threat to harm the baby Dane. She was extremely scared during the whole time. She was in a state of panic throughout that period up until the time when she ran up to the Police officers. She had difficulty telling the Police what had happened, but told them that: "They had a knife. They're still in the house." 47She agreed that she was presenting to the Police at that time as an hysterical person and that she was screaming and yelling. 48Kayla agreed that she had been speaking to the Police for a short period of time, perhaps less than two minutes, when Justin came running out of the house onto Holmes Street. 49She agreed that the Police were also trying to communicate with her mother who was screaming and yelling and the Police were trying to get information from her. 50Kayla agreed that the family had discussed the events of that night. It was only the arrival of the Police vehicle that led to the two men stopping the attempt to rape her and she had been petrified about what had been happening to her. 51She gave this evidence: "Q: You've told us a little bit about how you are having trouble getting words out of your mouth or to communicate, but when Justin came out holding this object in his hand, was it the case that you were trying to say, 'It's my brother', to the Police but the words just wouldn't come out? A: When Justin had run out he had said, 'Where's my sister?'. Whether the Police had that or not I'm not sure but I could have - I would have may be tried to have said, 'That's my brother'. Q: When you say, 'maybe I tried to say it', the situation is that you weren't able to get the words out of your mouth at that time? A: I'm not sure if they came one hundred percent out of my mouth." 52Kayla agreed that Justin himself was screaming in a very loud voice. He was running in the direction where Kayla was. She then gave this evidence: "Q: He kept running throughout the period of time, did he not? A: Up until - up until when? He had come to, like, he had slowed down before he had got shot. He had slowed down. Q: He never stopped at any point of time before he was shot, did he? A: No, I think I recall him stopping. Q: When you say you recall him stopping, are you saying that he actually just came to a dead still stop? A: No, not dead stop. He had slowed down." 53She was asked whether it was correct to say Justin was only a distance of one to perhaps two metres away and she gave this answer: "A: I'm not sure about the metres, exactly, but he was a bit away from the Officer, yeah." 54Kayla recalled Jasmin running out with a knife in her hand and was told to drop the knife. She had walked over to Jasmin and helped her drop the knife. 55Kayla was then asked: "Q: I asked you about one of the Police Officers yelling out towards Justin, 'Drop the weapon. Drop the weapon'. I want to suggest to you that that was repeatedly yelled out towards Justin on no less than three occasions as he was coming down the roadway? A: I'm not sure how many times it was said." 56Finally, Kayla, when recalled for further cross-examination, denied interfering in any way with either Police Officer prior to Justin being shot. (3) Evidence of Georgia Karakizos 57Mrs Karakizos was born on 1 January 1969. She is the mother of Justin and Kayla McMaster, whose father is Brett McMaster. In September 2011 she was living at 4 Holmes Colyton with her partner, Paul Sciberras and six children. 58Mrs Karakizos was subjected to a brutal and vicious assault in the front yard of her home by two of the offenders, which included being punched in the head by one man who was wearing a knuckle duster, and also being kicked while she was on the ground. When Kayla approached the men, as described in paragraph 36 above, Mrs Karakizos was able to escape to her next door neighbour's property and hid under a trailer which was situated on the driveway to that property, adjacent to number 8 Holmes Street. She could hear her daughter screaming and on two occasions tried to go to her assistance. However, on each occasion she froze and returned to her hiding place. She was clearly terrified by her experience. 59Eventually, Mrs Karakizos heard her daughter Kayla talking on the road outside number 6 Holmes Street and she realised that she was speaking to Police officers at the end of the driveway to number 6 Holmes Street. She ran towards them, and heard her daughter telling the Police what was happening. She could not recall what she said to the Police officers, however, she could recall the Police officers telling both her and Kayla to calm down. As they were talking, the next thing she recalled was her son running out onto the road with the curtain rod. She was standing on the nature strip and saw him running on the road. She gave evidence that he was holding the curtain rod in both hands like a baseball bat. It was on his right side. She heard him calling out "Where's my sister? Where's my sister?" 60Mrs Karakizos gave evidence that she remembered saying, "It's okay. It's okay. She's here. She's here." She also remembered Kayla saying: "I'm here Justin. It's okay, I'm here." 61Her evidence was that the female Police officer, Constable Kleinman, was on her left, together with Kayla, and the male officer, Constable Fanning, was on her right. All of them were standing on the grass, meaning the nature strip. 62Mrs Karakizos heard Constable Fanning calling out to her son to drop the curtain rod. She gave the following evidence: Q: Do you remember in terms of the male Police Officer pulling out the gun whether the words you said that you recall him saying which you told us about a moment ago was said before or after he pulled out the gun? A: When he pulled out the gun because he ran out with the curtain rod, they quickly both put up the taser and gun. Q: Do you remember the male Police Officer saying anything after he pulled out the gun? A: Just telling him to drop it. Q: Do you remember saying anything -- A: Yes. Q: To the Police Officer after he pulled out the gun? A: Yes. Q: What did you say? A: I was telling them both, 'That's my son. That's my son'. Q: When you said that, do you remember whether you turned to say it to the Police Officer? A: I was saying it to both of them because she had the taser and he had the gun and I didn't want them to use it on my son. I wanted them to know that he wasn't one of the guys." 63Mrs Karakizos gave the following evidence: "Q: Mrs Karakizos do you have a memory of what happened between the time you saw Justin on the road running with the curtain rod and the time that Justin was shot? A: He ran on the road, kept telling him to put the rod down and I think he was about to put it down when he got shot and then after that, I just remember him being on - coming on the grass. He looked up at the Officer holding his stomach saying 'You shot me'. Q: ...did you observe Justin do something with the curtain rod before the shooting? A: No, he was going to put it down because we told him it was okay." 64Mrs Karakizos gave evidence that her son had stopped on the road at the time that he was shot. He was approximately five metres away from her at that time. At that time he was in the middle of Holmes Street almost adjacent to them. 65After Justin was shot she told the Police officer, "I told you he was my son". When asked whether the Police officer said anything at that time she said "I think it was the words of 'Shit, I've shot him'". She then observed Constable Fanning to pick Justin up from the roadway and place him on the grass. 66At the same time she saw Justin on Holmes Street, she saw Jasmin Potts running behind him carrying a knife. After the shooting Jasmin went back inside the house to get a towel and when she returned she told Mrs Karakizos that one of the offenders was still in the house and that he had her baby, Dane. Eventually Dane was returned to her by other Police officers who entered the house, however, when she entered she found one of the knives used during the incident in a drawer. She and Kayla later went to the St Marys Police Station arriving at approximately 2am to provide statements. They did not leave until 5.30 or 6pm the following evening. 67In cross-examination Mrs Karakizos estimated that the incident involving the home invasion had taken place over 45 minutes or so before the Police arrived. She was terrified by her experience and in fact felt paralysed in terms of her ability to come out from her hiding place. She left that place when she heard Kayla talking to the Police but she felt petrified and in a state of panic. Her daughter Kayla appeared to her to be extremely scared and was yelling and screaming as she was trying to tell the Police what had happened. Both Mrs Karakizos and her daughter continued to yell and shout at the Police about what had happened to them as the Police tried to calm them down. 68Mrs Karakizos gave evidence that Paul Sciberras had come out after Justin was shot, and was clearly injured. Prior to the shooting however, she had been talking with Kayla to the Police for a number of minutes. She said that they were not screaming the whole time, however, she was distressed. As soon as she saw Justin on the roadway with the curtain rod she knew exactly what it was because she had seen it in his room in the granny flat. She gave evidence that he did not come in the direction of the Police and had stood still on the roadway for a few minutes before he was shot. She gave the following evidence: "Q: As he was standing there still with the Police telling him to drop it, did he drop it on your recollection? A: From what I remember he was starting to put it down. Q: As he was standing still? A: Yeah, cause we were telling him to put it down as well. Q: How far from you was he when you say he was standing still? A: From me to you. Q: Perhaps we'll put that as 3 or 4 metres (agreed at 4-5 metres)." 69Mrs Karakizos had no clear memory as to whether Justin had put down the curtain rod or whether he was putting it down when he was shot by the Police. 70In her statement made to the Police on 26 September 2011, she had told Police: "I said to Justin, 'drop it'. Justin then put the curtain rod down on the roadway. Soon after he did this, the male officer shot Justin in the groin region." 71She denied that he ran towards the Police but said that he ran to the middle of the road. Her belief was that she and Kayla and the two Police Officers were off the roadway and on the nature strip, standing on the grass at the time of the shooting. Nor did Justin ever run towards the Police officers with the curtain rod in his hands. 72She denied that the Police officers yelled out on at least one occasion to Justin to "Stop. Stop where you are" or words similar to that. She had, however, heard Kayla say, "I'm here Justin. I'm here, Justin". When the Police put the taser and the gun up she told them, "That's my son. It's okay. It's my son. He's not one of them". 73As to the circumstances in which she spoke to the Police at the time of the shooting Mrs Karakizos was asked: "Q: Because at a point of time when you were talking or trying to talk to the Police, would it be correct to say that a fair description of what was going on was, "we were all just going ballistic and everybody was trying to talk at once"? Is that a fair assessment of how people were communicating? A: Yes, Kayla and myself." 74It was put to Mrs Karakizos that Justin not only did not stop, but that he kept coming at the Police and was running towards them in their direction and got to a distance of perhaps 2 or 3 footsteps away from them, which she denied. She saw both Police Officers pull out their weapons and gave the following evidence: "Q: And when you saw the female Police Officer pull out the taser you are aware at that time that it was for the purpose of, if need be, her using it on Justin? A: If it was need be, but when I saw it I panicked and told them, "That's my son", letting them know that he wasn't one of those people that he was my son. 75It was put to Mrs Karakizos that she had only told the Police Officer that Justin was her son after he had been shot, and that the Police Officer had said words to her to the effect "I didn't know that", and she said that she did not recall him saying those words. She also gave evidence that she did not hear Constable Fanning say "I thought you were the bad dude, you carrying that stick". Her evidence was that his words were "Oh shit. I shot him". 76When asked about the lighting conditions, it was put to her that the lighting was quite dark, with which she disagreed. Her evidence was: "Q: Are you saying it was quite bright? A: No. You could see. You could see because not far away was the streetlight. So you still had a shine that you could see through." (4) Evidence of Jasmin Potts 77Ms Potts had been in a relationship with Justin McMaster since March 2010. In 2011 she moved in to reside with Justin in the granny flat at the back of 4 Holmes Street, Colyton. She had been awoken in the early hours of 26 September 2011 by screaming coming from the house and had woken Justin. She remained in the granny flat while Justin went to investigate. He returned and told her what he had seen inside the house. He then left, but returned once again and told her to stay inside and make sure the doors were locked. He told her that something had happened to Kayla and there were three men inside the house. When he left again, she telephoned the Police. 78Justin returned to the granny flat and grabbed the curtain rod. He ran back outside with it and as he did so, Ms Potts ran behind him with a knife she had taken from the kitchenette in the granny flat. By the time she jumped over the side fence, she looked up and saw Justin already on the road outside 4 Holmes Street. She described Justin as carrying the curtain rod close to his chest and then gave the following evidence of what happened: "A: I ran halfway onto the driveway and I realised that there was Kayla out the front, and Gina was out the front screaming and then I saw a female Police Officer next to a male Police Officer, and I saw a taser. The female Police Officer was holding a taser, but at first I thought it was a torch because it had lights on it." 79Ms Potts turned right down Holmes Street and walked along the nature strip towards the Police. She was looking at Justin and gave the following evidence: "Q: What did you see? A: All I saw was - all I heard was a bang and then I saw Justin just holding his stomach and then I started hearing screaming and Kayla and Georgia started screaming saying, 'That's my son. That's my brother', and I started saying 'That's Justin. That's my boyfriend.'" 80At the time he was shot, Justin was in the middle of the road, outside number 6 Holmes Street. In her opinion, she was five or ten footsteps away from the Police when he was shot. She still had the knife in her hand. She gave the following evidence: "Q: Was something said to you by one of the Police Officers about the knife? A: Yes. The female Police Officer put the taser on me and said - she said to drop it. In that time I was in shock, so I didn't realise what she was saying to me and Kayla grabbed my arm, and I just like released my hand and it dropped." 81In respect of the curtain rod, she was asked: "Q: At the time that Justin was shot, can you recall whether he still had the curtain rod in his hands or not? A: Yes. I didn't hear it drop or nothing like that, but I remember the next thing, I was looking at him with the curtain rod, and then the thing with the Police Officer happened, the lady Police Officer, and then I looked again and it was on the ground and he was holding his stomach." 82Ms Potts was then asked by one of the Police officers to get a towel. She went inside number 4 Holmes Street to do that, but saw one of the home invaders inside. 83In cross-examination, Ms Potts was asked about the account she gave to the Police in a statement made by her on 26 September 2011 when she told the Investigating Officer that at the time Justin was shot he was standing about a metre away from the Police. She had no recollection of that. She gave evidence that Justin still had the curtain rod in his hand after he was shot, as he didn't have time to drop the weapon before he got shot. She agreed that whilst he was on the roadway, Justin was running in the direction of his sister. 84Ms Potts agreed that the Police officers were yelling out words directed to Justin, "Drop it, drop it". 85Ms Potts confirmed that both Georgia and Kayla were screaming and yelling when she came out on the street. That continued right up until the time that Justin was shot, and after. When it was put to her that the Police officer had yelled words to Justin "Stop, stop", she said what she heard were the words "Drop it". She also heard him say after the shooting "Sorry, I thought it was one of the home invaders". 86She was also asked: "Q: Before Justin was shot did you hear Gina say anything at all to anyone? A: I heard her screaming out 'That's my son, that's my son' and Kayla was screaming out as well saying 'That's my brother'. So that's when I started screaming out. Q: That's before Justin was shot, is it? A: Yes." 87It was put to her that she had not told the Police in her Police Statement that Gina had said "That's my son" before Justin was shot, to which she answered: "A: Because that night I was in shock. I left out a lot of stuff. I didn't even put in where I ran inside to get the towel for him." Defendant's Evidence on Liability (5) Senior Constable Stewart Chang 88Senior Constable Chang was directed to Westmead Hospital to remain with Justin McMaster in the early hours of 26 September 2011, to carry out duties relating to patient protection and witness security. He accompanied Justin from the operating suite to the intensive care unit. Between 6.20am and 12.05pm that day he recorded notes of various conversations. His statement was tendered without objection as exhibit 4 in the proceedings. It contained the following statement by Justin McMaster: "Please don't let nothing happen to the cop that shot me, it was an accident, it wasn't his fault. I ran at him. I was carrying that thing at the top of the blinds and bang. I got hit and went down." 89In cross-examination Senior Constable Chang agreed that he had not told Justin McMaster that he was a Police Officer, and that he was going to record their conversations. He had been sent to the hospital as part of the home invasion investigation, and had been asked to report back anything that was pertinent to that investigation. He had also recorded the conversation between Justin McMaster and his brother Chris. Senior Constable Chang was present in the hospital room in the intensive care unit when Justin McMaster was interviewed by Officers from the Professional Standards Command at Quakers Hill Police Station. (6) Detective Senior Constable Scott Whale 90Detective Senior Constable Whale conducted the ERISP interview with Justin McMaster at Westmead Hospital. He gave evidence that prior to conducting the interview he spoke to a doctor and nurse and was advised that Justin was able to talk to him for the purpose of that interview. He had not spoken to Mr McMaster since that interview, and had no role to play in the investigation into the home invasion. (7) Constable John Fanning 91Constable Fanning had been a Police officer for approximately two years at the time of the home invasion. He had commenced work at 7pm on 25 September 2011 and was performing duties with Constable Natasha Kleinman that night. They responded to a radio message to attend 4 Holmes Street, Colyton. The information he recalled being given involved a female being held down by two men, with kicking mentioned and also a reference to a knife at the scene. That caused him to believe that it was a serious job. He was driving the Police vehicle, a van, but was not licensed to use the Police siren but was licensed to operate the coloured lights on the Police vehicle. The vehicle was travelling along Holmes Street at approximately 40 kilometres an hour near the intersection of Allam Street when Constable Kleinman indicated to him that she could see a woman running down the road. He stopped the vehicle, and marked the place where the vehicle was stopped on exhibit 3, an enlarged photograph of Holmes Street. It was outside number 8 Holmes Street. 92The female appeared to be running towards the Police vehicle and stopped at the driver's side window. Constable Fanning described her as follows: "A: She came, and she was very hysterical. She was overwhelmed it seemed. I would say she looked very fearful, petrified, and she was waving her hands around a lot, and she was trying to indicate something to me but I couldn't make out what she was saying. Q: What sort of voice was she - did she have? A: It was a heightened voice, like someone who had just got very scared by something. Her breathing was fast and the words were not clear. When I was still in the vehicle I couldn't hear what she was actually saying, but there was a lot of hand movements and she looked very, very scared." 93Both Police officers alighted the vehicle and were standing on the roadway talking to the female, who inferentially was Kayla McMaster, at the front of the vehicle on the driver's side. Constable Fanning asked her what had happened and she said: "There's a man. He has a knife and he had it to my throat. He was choking me. There's a man. He has a knife to my throat and he was choking me." 94Constable Fanning asked Kayla "Where is he? Where are they?" and she said "I don't know". 95Constable Fanning described Kayla as hysterical. He then gave evidence that they started walking in the direction from where she had come and that Kayla had pointed them towards number 4 Holmes Street. He described what happened next as follows: "A: Soon after that, we got to the house directly before that, which I think is number 6, and at that stage I saw a man running out from the house. Basically, from what I saw - it was a strong light. At the time I believed it to be some sort of floodlight, porch light. It seemed to be giving light and I could see this man running out from the front yard along the fence line of number 4 Holmes Street. At that stage I saw that he was carrying a shiny metal pole. I didn't know what that pole was. It was a long pole, up to 2 metres long. As he was running, he was yelling out, he was screaming. He seemed to be - his demeanour was one of being very angry and also not rational. It seemed to me that he was in a crazed state. He ran from the front of that house and he ran directly to the middle of the road on the bitumen road of Holmes Street. He didn't cut across any paths, he just ran down to the middle of the road, and then he started making his way running down the middle of the road towards where we were standing on the roadway, and all the time he had the pole in his left hand, with his right hand supporting it and he was waving it back and forward." 96Constable Fanning indicated on exhibit 3 where he was on the roadway when he first sighted Justin McMaster. By the time he reached that point, another female, inferentially Georgia Karakizos, had appeared and was standing on the roadway with Kayla McMaster and Constable Kleinman. Constable Fanning was asked what happened: "A: Well, he was running down the middle of the road. From the moment I first saw him, I yelled out, "Stop, stop, Police". The first time I yelled out that, he was still coming out from the actual house, from the yard in front of the fence. That was the first time, then he's coming down the middle of the road. We've yelled out another at least two times for him to stop and we've -- Q: Sorry, you use the word 'we'. I want you to be particular about -- A: Yeah okay, yeah. Well, myself - at least I can say for myself, I yelled out in a loud voice, 'Stop, stop, Police', and I did that two or three times and I observed that he wasn't paying any note to what I was saying. He kept proceeding and he was yelling what seemed to be at the top of his voice. He was yelling out - I couldn't make out what words he was saying, but he was just screaming and he kept proceeding. Q: And what happened? A: I've kept my eyes on him as he's running down the roadway. By this time my firearm was already out and I had it pointed towards his upper torso. I've allowed him to get closer and closer. He was still running and he was still swinging the pole. I've then - I've known where my partner was, Constable Kleinman, but I didn't actually turn to look at her. I just knew that she was there. I could see - just from my peripheral vision I could see that she was to the side of me in the middle of the roadway, as was the suspect. He was running down the middle of the roadway. As he's got closer, I've then taken a step, maybe a step and a half, backwards towards the eastern side gutter, with my firearm still pointed at his upper torso. I've allowed him to get within 2-3 metres of Constable Kleinman, which for me was further than I would have allowed someone normally. He breached the 7 metres that we are taught, and I suppose I was waiting for a reaction also from my partner, who I knew had a taser, and there was no response from my partner. However, I didn't take my eyes off him to check what she was doing. As he's got closer and closer I've then thought very loudly in my head, 'I'm going to have to shoot this bloke'. It was a last resort, because I reasoned within myself that, if I didn't stop him, he's going to seriously injure my partner or even kill her. I saw the threat as imminent, I saw the threat as serious, and I knew that I had to react to stop that threat from getting any closer." 97Constable Fanning gave evidence that he had heard Constable Kleinman yelling out "Stop, Police, stop". 98When asked why he did not discharge his firearm earlier he said: "A: I was waiting for a response from a taser. I didn't see any red dot on the suspect and I definitely didn't see anything discharge from the taser. I saw no other way of stopping the threat from where I was." 99When he discharged his weapon Mr McMaster was 3-4 metres away from him. He was 2-3 metres away from Constable Kleinman, who was closer to the middle of the road. 100Constable Fanning gave evidence that Justin McMaster had been running at the same pace the whole way through, he did not slow down prior to being shot. The shooting occurred within a very short period of time of his arrival in Holmes Street, probably no more than two minutes. 101It was only after he discharged his firearm that he heard a voice yelling and screaming, a female voice saying "That's my son", and then another female voice saying "That's my brother". 102At the time of the shooting Constable Fanning had other appointments available to him, including an OC spray, a retractable baton and handcuffs. 103When asked about the street lighting, Constable Fanning gave evidence that it wasn't bright and at the time the light was dim. There were only two streetlights in the vicinity. 104Following the shooting, he holstered his firearm and as he approached Justin McMaster he heard someone say "That's my son". Constable Fanning said "I didn't know that". That was confirmed on exhibit F, a video taken from the taser operated by Constable Kleinman (see also exhibit G for the transcript). It also recorded him saying "Man, I thought you were one of the bad dudes. You were carrying that stick". He then picked up Justin from the roadway and carried him to the nature strip and placed pressure on his wound. 105Constable Fanning was cross-examined on the content of exhibit F. He agreed that he had referred to the curtain rod as a "stick" immediately after the incident, but believed that it was a metal pole. 106In cross-examination Constable Fanning conceded that he regarded himself to be attending a serious job involving the possibility of a knife, and that no other Police help was available within 15-20 minutes. He regarded the two offenders were reported as assaulting a woman on the ground as "bastards". He denied however being in an agitated state when he arrived at Holmes Street. 107The use of the knife was confirmed by his conversation with Kayla McMaster upon arrival. When asked whether he had sought to identify the person he saw running from the property from the people around him at that time, namely, Kayla and Mrs Karakizos, his answer was "It's likely". He had no recollection of doing so however. 108Constable Fanning underwent an interview from Internal Police Investigators 36 hours after the event. The transcript of that interview records that he did so under duress, in accordance with Police Association advice. Constable Fanning gave evidence that he was shaken at the time he underwent that interview and subsequently was diagnosed as suffering a post-traumatic stress disorder and took leave. 109It was clear from Constable Fanning's ERISP interview that he was able to give a good description of Justin McMaster as he first saw him running onto Holmes Street that night. He demonstrated to the Investigating Officers during the ERISP interview that Justin had been holding the curtain rod in his left hand. He described him carrying the curtain rod but also moving it in a casting motion away from his body. This conflicted with his evidence in chief to the extent that he had previously said that he was holding the bottom of the curtain rod with his right hand. 110The Investigating officers also took Constable Fanning through what has been described as a "walk-through" at Holmes Street a couple of days after the shooting. The DVD of that walk-through became exhibit 9 in the proceedings. 111Constable Fanning conceded that he pulled his gun from its holster as soon as he became aware that Justin McMaster was carrying the curtain rod. That was when he saw him in the floodlight across the driveway of 4 Holmes Street, but before he was on the roadway. At that time he was running across his view and then he changed direction to run towards where the Police officers were standing on Holmes Street. He was closer to the gutter and Constable Kleinman was standing closer to the centre of the road on his right. She was a little behind him and the two women who had approached them were with her on the roadway. 112Constable Fanning had observed Justin McMaster to run down the middle of the road in a straight line. The reason he gave for discharging his weapon was that he formed a belief that Constable Kleinman was under threat from Justin McMaster because she was in the middle of the road. He fired out of fear for the well-being of both Constable Kleinman and himself. 113Constable Fanning agreed that Justin was not holding the curtain rod with his hands together in a baseball like grip. Before he discharged the weapon, Constable Fanning had taken a step or two back, closer to the gutter. 114It was put to Constable Fanning that it was clear that Justin McMaster did not have a knife in his right hand as he was proceeding down Holmes Street. He did not agree that it was clear. Further, it was a possibility that he may have a knife concealed on him. His main concern however, was the metal pole being carried by Justin. 115It was further put to Constable Fanning that he could not use his other appointments without putting his gun back into its holster. He agreed that there was no other options available to him despite training to change from appointments to go to a less than lethal option, depending on the situation. It was put to him that once he had taken his gun out, the shooting of Mr McMaster was inevitable unless he stopped on the roadway, or otherwise followed his direction. 116Constable Fanning was also asked about answers he had given in his ERISP interview about lowering his aim from the upper torso of Mr McMaster to his abdomen. His statement read, "I don't want to kill this bloke, I lowered my aim". By doing so he did not follow the correct procedure for discharging his firearm and his reason for doing so was preservation of the life of Mr McMaster. It was put to Constable Fanning that the reason he changed his aim was because he had perceived that the threat was easing or lessening, a proposition he did not agree with. 117Constable Fanning did agree that the only reason he had given Mr McMaster in the minutes after the shooting for why he had discharged his firearm was because he had not stopped. He did not mention to him anything about putting the object he was carrying down or his concern that he was going to use that object to hit someone. 118Constable Fanning conceded that he did not know whether Constable Kleinman had her taser drawn. Whilst he could see Constable Kleinman in his peripheral vision, he could not see what she was doing, nor did he recall her calling out anything to him. He gave evidence to the effect that he was waiting for a response from her, but as time went on, there was no response and in his belief the threat to her was still imminent. 119Constable Fanning was asked why he had told the Investigating officers (Q 148): "Why in the first place did you take your firearm out of its holster?" "I drew my firearm because I believed there was an imminent threat. I believed that there was a knife somewhere." "A: With regards to the knife, as I stated on Friday, a knife at the scene which I hadn't seen as yet - - I made to reference to that because, like I said in the ERISP, I needed to be on my guard and have my wits about me. So they spoke to me of some of the seriousness involved in the job. The reason for my discharging the firearm was because the suspect didn't stop and he was holding a long steel pole that could have seriously injured my partner or myself or even killed her." 120It was put to Constable Fanning, based on his statement to the Investigators, that at the time he shot Justin McMaster he did not have it in his mind that he, i.e. Justin, was going to kill his partner, that is, Constable Kleinman. That statement went on to say: "I had it in my mind that it was a serious weapon whatever it was, that he had his left hand and I allowed him to get too close for my mind. I'd given him more than I should really." 121Constable Fanning gave evidence that 3 metres was a safe distance to keep from a suspect without a weapon, but with a weapon, that safe distance was 7 metres. He also referred in his ERISP interview to being "quite worked up", meaning emotional, as the whole incident was quite "traumatic". He agreed that he was 3 or 4 metres from McMaster when he shot him, but would not agree that it could have been as far as 5 metres. 122It was put to Constable Fanning the only reason he shot Mr McMaster was that he didn't stop, with which he disagreed. It was also put to him that at the time of the shooting Mr McMaster was standing still, with which he also disagreed. Constable Fanning also disagreed with suggestions that at the time of shooting Mr McMaster was in the process of lowering the object he was carrying and that if he had not stopped, he had slowed down. The reason he told Investigating Officers about the possibility of a reduction of the threat he posed was that he had slowed down, with which he disagreed. It was put to Constable Fanning that at the time of the shooting Georgia and Kayla were either on the grass or in the gutter near Constable Kleinman, with which he also disagreed. 123In re-examination Constable Fanning gave evidence that it was inappropriate following the shooting to discuss with Mr McMaster the circumstances of his shooting and it was for that reason he kept it very simple by asking, "Why didn't you stop?" His uppermost fear at the time was Mr McMaster's life. (8) Constable Natasha Kleinman 124Constable Kleinman had been a Police officer for just over three years when she gave evidence. She is now 23 years of age and therefore on 26 September 2011 she was aged 21 years, and had less than one year's experience as a Constable. 125She had responded with Constable Fanning to the Police radio message and proceeded to Holmes Street, Colyton. As the Police vehicle drove into Holmes Street, she saw a lady in a pink dressing gown running in the middle of the road towards the Police vehicle. Constable Fanning stopped the vehicle and she got out of the car and described the woman as "hysterical, yelling, screaming". She said things like, "they have knives, they had a knife to my throat. They're still in the house". 126Constable Kleinman then gave the following evidence: "Q: What happened from that point of time? A: I tried to move her off the road. She was hysterical, she couldn't stand properly on her two feet, so I've grabbed hold of her dressing gown by the shoulder area, and I've started to direct her off the road. She's still yelling and screaming. I couldn't understand things that she was saying. Q: Did you get her off the road or not? A: I attempted to. I got to probably in front of the Police car and I saw another lady running up the street. She was running on the grassed area on the nature side. She was wearing a white knitted jumper. She was also screaming something I couldn't understand." This lady was, inferentially, Georgia Karakizos. 127Constable Kleinman was unable to get both the ladies off the road. When asked what happened then she gave the following evidence: "A: When the second lady wasn't too far from us, I saw a male running in the middle of the street towards us. He was carrying a metal pole of some kind as he was running. He's running towards us, both ladies are yelling and screaming. As soon as I saw him I tried to pull the lady in the - the first lady in the dressing gown - behind me with my right hand. She's still yelling and screaming, I couldn't understand what she was saying. She's kept coming forward, I'm still trying to pull her back. The male is still coming. I'm yelling 'Stop there where you are'. I can hear lots of yelling and screaming, and he's coming closer, still not stopping. I'm still yelling, 'Stop, stop where you are'. I go to grab my taser, the lady keeps coming forward. I'm pulling her back again with my right arm. She's also got hold of my arm as I do that. I tried to pull my taser again, same thing happens again. I try and push her away. I finally pull my taser and arm it, and I heard a bang, and I saw that he had been shot by Constable Fanning." 128Constable Kleinman described the demeanour of both women as hysterical and both were yelling and screaming. She did not see where the person came from who came running out. When she first saw him he was in the middle of the road. She also saw that he was carrying a metal pole of some kind, approximately 2 metres in length. He was 20 metres away when she first saw him and he was approximately less than 4 metres away from her when he was shot. Constable Fanning was to her left, on the roadway, slightly in front of her. The first lady in the dressing gown was to her right and behind her, she was not sure where the other lady was. 129Constable Kleinman also heard Constable Fanning yelling out words to the effect of "Stop, stop". 130Constable Kleinman said she had no opportunity of pulling the taser out before the man was shot because she was trying to push the lady in the dressing gown back behind her with her right hand. 131At no time before the discharge of Constable Fanning's firearm was she aware of who the male person on the road was. After he was shot, she heard the older woman saying "That's my fucking son". 132After the male was shot, Constable Kleinman saw another lady who she believed was a neighbour. After reporting the matter on the radio, she asked one of the women to go to into the house and get a towel for Justin's wound. She gave this evidence: "Q: Did she appear to at least follow your request? A: Yes, she ran off and came back with a towel, but she also came back with a rather large knife. Q: What happened then? A: I've drawn my taser and pointed it at her and told her to put it down. She's put it down but picked it back up again. I've yelled at her again, "Put it down". She's put it back down and walked away. Q: Do you know who that lady was? A: I'm not sure. Q: The lady who went into get the towel, do you know which of the three ladies, which one it was? A: I can't recall." 133When Constable Kleinman was asked why she pulled her taser out as the man was running towards her, she gave this evidence: "A: He wasn't stopping, he was still running towards me. I thought I was about to be assaulted by whatever he was carrying, and seriously injured." 134Constable Kleinman was cross-examined about her evidence about pointing her taser at the woman came out with a knife. It was put to her, consistent with Jasmin Potts' evidence, that that had taken place before she had gone back inside to retrieve a towel. 135Constable Kleinman had undergone an ERISP interview on 27 September 2011. After the interview she also participated in a "walk-through" or recreation of the incident in Holmes Street with Detectives. 136During her ERISP interview, she had told Detectives about the movements of the male on the roadway in these terms: "I think he was running, and it turned into a swift walk". When asked whether he appeared to slow down she gave this answer: "A: I indicated that he slowed down as a result of being shot." 137Constable Kleinman was cross-examined as to question 66 of her ERISP interview in which she had stated "He's kept walking towards us". She denied that that answer had indicated a recollection by her of Mr McMaster, before he was shot, running, then slowing down to a swift walk, and then just a walk. In fact she described his movement as "a kind of marching", meaning some kind of walking motion. 138Constable Kleinman agreed that at the time Mr McMaster was shot Constable Fanning was closer to him than she was. She believed him to be on her left-hand side at the time he discharged his firearm, but he came onto her right side shortly after that. 139When shown the DVD of the "walk-through", Constable Kleinman agreed that she was standing towards the side of the road near the driveway to number 6 Holmes Street. She was not in the middle or close to the middle of the road. She did indicate that Constable Fanning was standing behind her and to her right. When challenged about the distance away from Mr McMaster when he was shot, Constable Kleinman said "I'm not very good with distances". In respect of the woman in the pink dressing gown, in her ERISP interview she said that whilst she was trying to get her taser out, that person was moving forwards. She agreed that that movement forward, was in the direction of the male running down the street. She did not think that was strange. Whilst the woman touched her on the arm, she did not understand that to be an attempt to prevent her from using the taser. She did not know. 140Constable Kleinman could not recall Constable Fanning to be agitated or to say anything in response to information given to them over the Police radio that other Police were 30 minutes away. Nor did she recall Constable Fanning to be agitated before he arrived at Holmes Street. There was no communication between herself and Constable Fanning as to what they could do as Justin McMaster was coming down the road. Her ERISP transcript became exhibit 6 in the proceedings. Other Relevant Evidence on Liability 141I have also had regard to the following evidence: (1)The taser video and transcript (exhibits F and G). (2)The ERISP interviews and transcripts of Constable Fanning (exhibits 7 and 8), and the Police interview of Justin McMaster in hospital (exhibits 1 and 1.38). (3)The Walk-through Video (exhibit 9) Defendant's Submissions on Liability 142Counsel for the defendant characterised what occurred in the early hours of the morning of 26 September 2011 as "a classic Police operation for the investigation and suppression of crime". The timeframe in which events unfolded following the arrival of Police at Holmes Street, Colyton, was less than two minutes (see exhibit 17.49). In the circumstances there was no opportunity to devise an operational plan and the shooting of Justin McMaster occurred as "a heat of the moment operational decision having been made". In the circumstances, a Police operational immunity applied whereby, according to authority, the Police owed no duty of care to Justin McMaster. It was further submitted that such operational immunity applied whether the case was brought in negligence or in an action for assault and battery or trespass, relying on State of New South Wales v Klein [2006] NSWCA 295, ACTV Crowley & Anor [2012] ACTCA 52, Sullivan v Moody (2001) 207 CLR 562, Hill v Chief Constable at West Yorkshire [1989] AC 53, Van Colle v Chief Constable of Hertfordshire Police [2009] AC 225, and New South Wales v Paige [2002] NSWCA 235. 143Counsel for the defendant submitted that liability and damages for assault during the course of a Police operation must involve a deliberate intent to cause the apprehension of fear or harm to a person, and not an action carried out as an integral part of the operation. 144The defendant submitted that there were inconsistent obligations of the Police officers involved. They were required to protect the victims of the home invasion or potential victims, as well as take whatever action was necessary in order to carry out that duty of protection, and at the same time, Constable Fanning was under a duty to ensure the protection of his fellow Police officer. Because of these inconsistent obligations, there was, separate to the Police immunity principle, no duty of care owed to Justin McMaster in those circumstances as he was believed to be a perpetrator who was running at them with a weapon, relying on Sullivan v Moody, supra. 145Counsel for the defendant also relied on Tame v State of New South Wales as authority for application of the Police operational immunity in a non-urgent situation involving an administrative error. 146In the circumstances in which Justin McMaster came towards the Police on Holmes Street, it did not matter that the Police had established that he was a perpetrator, a suspect or a victim. The defendant submitted he was not a bystander. It was submitted that the evidence established that the Police believed him to have been a perpetrator. It was further submitted that the overwhelming evidence was that he was charging at the Police with a weapon in his hands. 147The defendant also relied on the High Court's decision in Stingel v Clarke (2006) 226 CLR 442 where the Court held that the words "breach of duty" were not limited to a duty to take reasonable care but also encompassed other civil duties including intentional trespass. Although that case involved an application under the relevant Limitation Act, the defendant submitted that by analogy the Police operational immunity principle applied whether the plaintiff's claim was framed in negligence, trespass, assault or otherwise. 148The defendant also relied on the High Court's decision in Williams v Milotin (1957) 97 CLR 464 as authority for the proposition that intentional torts such as trespass can be committed negligently. Thus, it was submitted, the plaintiff's needed to prove an intentional act on the part of Fanning otherwise the action must be in negligence. 149Counsel for the defendant submitted that s 3B of the Civil Liability Act 2002 could not apply in the present circumstances. For that section to apply, the Court would have to find that what Constable Fanning did was a deliberately wrongful intentional act done with intent to cause injury in circumstances in which there can be no lawful justification. Thus, if his defence of self-defence was justified, the section would not apply. This involved reading into the section the words "without lawful justification". These words, it was submitted, could be implied as civil liability could not arise where there was lawful justification for an act. 150It was submitted that if the Civil Liability Act was not excluded then the entirety of Georgia Karakizos' and Kayla McMaster's cases failed. 151With respect to the evidence, Counsel submitted that the Court should accept the evidence of Constable Fanning that Justin McMaster said to him words following the shooting "It's not your fault", both as an admission against interest in these proceedings and a representation as to what he understood to be the case at the time. Those words were corroborated to the extent that Justin McMaster also told Constable Chang at Westmead Hospital, after his operation, that the shooting was "an accident, it wasn't his fault". He confirmed evidence he had given in the Criminal trial as follows: "Q: You don't blame the Police Officer do you that shot you? A: I can understand where he came from, yeah." 152The defendant submitted that the evidence established that Constable Fanning believed that he had shot an offender. The taser cam video evidence established that when told by Mrs Karakizos that he was her son, Constable Fanning immediately replied "I didn't know that". It was submitted that I could not accept Mrs Karakizos' evidence that she had told the Police that Justin was her son, prior to him being shot. 153Counsel for the defendant also submitted that the evidence of Kayla McMaster supported the contention that Justin had been told to "drop the weapon" on two occasions by the following evidence: "Q: I asked you about the one of the Police Officers yelling out towards Justin, "Drop the weapon. Drop the weapon". I want to suggest to you that that was repeatedly yelled out towards Justin on no less than three occasions as he was coming down the roadway? A: I'm not sure how many times it was said." 154The evidence established, it was submitted, that there was no doubt that the Officers had yelled out "Stop, Police, stop, stop". 155Counsel for the defendant further submitted that Justin McMaster's actions, by running towards the Police Constables holding a curtain rod in his hand, amounted to him acting unlawfully in terms of either an assault, or attempted assault, in that he created an apprehension of fear in the Police officers, or in the alternative, he was negligent in his actions towards the Police officers. This was conduct that came within the defendant's reliance on ss 52 and 53 of the Civil Liability Act. At the time he approached the Police he did not know that his sister was with the Police and he had intended to use the curtain rod as a weapon. It was submitted that Constable Fanning was acting either in self-defence or as of necessity and therefore lawfully. It was submitted that the question to be asked in respect of the defence of self-defence was whether the Constable believed on reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if there was reasonable doubt about the matter, then the defence was made out. In determining that matter, the whole of the surrounding circumstances must be taken into account - see State of New South Wales v Tyszyk [2008] NSWCA 107. 156In respect of the test to be applied pursuant to s 52 of the Civil Liability Act, Counsel submitted that it was not an entirely subjective test, however, it contained a large component of subjectivity about it and in this case, how Constable Fanning perceived the circumstances are critical in that determination. Counsel further submitted that the use of disproportionate force might not always be unreasonable, depending on the circumstances of the case. 157The common law position in respect of self-defence was set out in Zecevic v DPP (VIC) (1987) 162 CLR 645 at 662-663. The principles of necessity were also relied on in terms of what Constable Fanning did in defending his partner, Constable Kleinman. 158Counsel for the defendant also made a submission pursuant to Browne v Dunn (1893) 6 R. 67 H.L in respect of the cross-examination of Constable Fanning. Shortly put, it was submitted that Constable Fanning had been cross-examined on the basis that the only reason he shot Mr McMaster was because he didn't stop, which involved a recognition that Mr McMaster kept running. It was submitted that Constable Fanning was never challenged that he did not hold the requisite belief. It was never put to him that he did not or could not have feared for the safety of his fellow Police officer, or for himself. It was never directly put to him that he did not hold any fears for Constable Kleinman's safety. Nor was it put to him that he was untruthful in any sense, or that he had other available means of defence available to him. 159Counsel submitted that Constable Fanning's subjective state of mind was critical in a defence of self-defence and he had not been challenged on this critical factor. Nor was it put to Constable Fanning that the object which Justin McMaster was holding could not have caused serious injury. In Counsel's submission, it was required to be put to Constable Fanning that the man coming down Holmes Street with the metal rod was not doing anything which would lead Constable Fanning to have any apprehension or subjective belief that he was under attack or that his partner was under attack, and that that was not put. In those circumstances it was submitted that the self-defence argument put forward by the defence had to succeed. Further, the force used was proportional to the danger, and even if it was not, disproportionate force of itself would not defeat the defence of selfdefence. 160Counsel for the defendant further submitted that what was being alleged against Constable Fanning was a criminal act, not merely a tort. For that reason, the Briginshaw standard applies and secondly, good character was relevant. It was therefore submitted that Constable Fanning's time spent as a missionary for five years before he became a Police Officer was relevant. He had been severely traumatised by the events and the evidence demonstrated that he did not intend to commit such an act. 161In respect of the nervous shock claims brought pursuant to s 4 of the Law Reform (Miscellaneous Provisions) Act 1944 ("LRMPA"), it was submitted that the claim was misconceived. The claims were not excluded from the Civil Liability Act by s 3B and therefore s 4 of the LRMPA did not apply, relying on Scala v Mammolitti (1965) 114 CLR 153 and Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269. It was common ground between the parties that if Mr McMaster was unsuccessful, then the other plaintiffs cannot succeed. It was submitted that s 4 does not intend to cover the common law field in respect of nervous shock claims. It merely enlarged a class of persons who could sue and was not intended to take away common law rights of other parties. Therefore, the common law immunity defence available to the Police Officers was available. As the Police did not owe Justin McMaster a duty of care, the defendant had not breached any duty of care in any way, shape or form towards him and therefore the claims must fail. 162Counsel for the defendant further submitted that pursuant to s 3B(1)(a)(ii) of the CLA, Part 7 of that Act would apply even though the cause of action was excluded by s 3B. I would therefore have to have regard to the selfdefence provisions, ss 51-53 of the Act. Counsel submitted first, that the conduct of Justin McMaster was unlawful because it constituted either an assault, an attempt at battery or negligence. It was submitted that the evidence established an intent on the part of Mr McMaster to batter or assault or negligently attack the Police officers as "people who were there with his sister". Counsel also relied on the evidence that Mr McMaster had given as to his intended use of the curtain rod: "Q: There's just no question that you were intending to use that as a weapon? A: If need be." 163Counsel submitted that the response of Constable Fanning was reasonable and there were no exceptional circumstances, So that if I was to find otherwise, there would be a limitation on damages awarded pursuant to s 53 of the CLA. The Plaintiffs' Submissions on Liability 164Learned counsel for the plaintiffs commenced by advocating the following findings of fact: (1)That Constable Kleinman was not standing in the middle of the road at the time of the shooting. (2)Constable Fanning was also on the side of the road and shot diagonally across the road at Mr McMaster, who was in the middle of the road. He shot to his left side, however, there was no dispute that it was a shot diagonally across the road. (3)Constable Kleinman was to the right of Constable Fanning and slightly behind him. (4)Constable Fanning could not see what Constable Kleinman was doing, although she was within his peripheral vision. (5)The manner in which Mr McMaster held the curtain rod in his hand did not change as he came down the road. (6)The Police said "Stop, stop". (7)Constable Fanning said "Stop, Police stop". (8)Constable Kleinman said "Put it down, put it down". (9)Justin McMaster ran straight down the middle of the road. (10)Constable Fanning took his Police weapon out at a point when he saw Justin McMaster in the front yard of number 4 Holmes Street, which was lit by a torch or floodlight, before Justin emerged on to Holmes Street. 165Counsel submitted that all witnesses were trying to give their best recollection of what happened. Generally their credit was not impugned successfully. 166Counsel submitted that Justin McMaster's evidence was based on a recollection only to the point where he got to the end of the driveway. Thereafter, any evidence he gave must be treated with some caution, for example, the evidence that he gave in his ERISP interview in hospital, namely "because I was running around like a psycho". Evidence that he had given in previous proceedings about being on the roadway had to come from things he was told by others as to the events of the night. It was submitted that Justin McMaster was a very impressive witness, making concessions quite willingly about matters and his demeanour was that of a particularly credible witness. 167The plaintiffs' oral submissions were supplemented by detailed written submissions. They outlined that the evidence had established Justin McMaster's case as one of battery. 168Once Justin McMaster's cause of action was established in battery, the next issue to be determined was whether the defence of self-defence was made out, either at common law or pursuant to the Civil Liability Act. The plaintiff relied on Underhill v Sherwell [1997] NSWCA 325 as authority for the proposition that the onus on proving self-defence was on the defendant. It was submitted that there was an absence of any reasonable belief on the part of Constable Fanning that he was acting in self-defence and there was a disproportionate response to him to any perceived threat. As to the belief held by Constable Fanning at the time he shot Justin McMaster, Counsel for the plaintiff submitted that he could not have reasonably held a belief that there was an imminent threat to Constable Kleinman, either in respect of her being killed or injured. At all times, Justin McMaster was running down the middle of the road, and Constable Kleinman was, on the plaintiffs' submission, standing closer to the gutter or nature strip outside number 6 Holmes Street. Further, when questioned about this in his ERISP interview, Constable Fanning told the Investigating Officers that his concern was not with Constable Kleinman's safety, but was the possibility of a knife. On the basis that the espoused belief of Constable Fanning was wrong, the Court could not accept his belief as to any imminent threat was reasonable, and therefore the defence was not made out. It was further submitted that the plaintiff's case had been put to Constable Fanning, and the defendant's reliance on Browne v Dunn was misplaced. 169A defence of necessity was inexplicably interlinked with the defence of selfdefence and it too could not be made out. 170In response to the defence submission that Justin McMaster was engaged in unlawful conduct or activity, Counsel for the Plaintiffs submitted that that submission was not made out. Mr McMaster was merely running down the road to find his sister. There was no evidence of an attempted battery or attempted assault by him, nor was he negligent in any way. 171In respect of the defendant's submission that, relying on there being no duty of care in the circumstances by Constable Fanning towards Mr McMaster, the plaintiffs submitted that that defence, relying on operational immunity, had only been applied authoritatively in cases of negligence. 172Counsel for the plaintiff distinguished the High Court's decision in Stingel v Clark, the only decision relied on by the defendant for the proposition that the operational immunity can apply to a case of intentional tort. That case was in fact a limitation case. 173In relying on the decision of Crowley, the defendant had submitted that the shooting of Justin McMaster was an integral part of the Police operation on that night. Counsel for the plaintiff submitted that the situation here was very different from the circumstances in Crowley where there was an immediate threat to a number of people. He also distinguished the present circumstances from that in the matter of Klein, supra. Issues to be Determined 174The following issues arise to be determined in this matter: (1)Was Justin McMaster's case established in battery? (2)If so, does s 3B of the CLA apply? (3)If not, was Justin McMaster's case established in negligence? (4)Was the defence of operational immunity established if the plaintiff's case was: (i)In negligence, or (ii) An intentional tort? (5)Was the defence of self-defence established? (6)Was the defence of necessity made out? (7)Was the defence of contributory negligence made out? (8)Whether the nervous shock claims of Kayla McMaster and Georgia Karakizos pursuant to s 4 of the Law Reform (Miscellaneous Provisions) 1944 were made out. (9)In the event of liability being determined in favour of the plaintiffs, what damages are to be awarded. Factual Findings 175In the process of fact finding arising from all of the evidence in this matter, I have had regard to recent judicial commentary on the effect of emotionally arousing or stressful incidents on eye witness recollection of events. In R v XY (2010) 79 NSWLR 629, Whealy J, (with whom Campbell JA and Simpson J agreed), in the context of construing the phrase "fresh in the memory of the person who made the representation" contained in s 66 of the Evidence Act 1995, referred to the Australian Law Reform Commission report into the Evidence Act (ALRC 102, "Uniform Evidence Law Report" (2005)). At [71] His Honour said as follows: "There were four specific matters referred to by the ALRC in relation to psychological research into memory that were thought to have challenged the assumptions in forming the drafting of the original section. These, briefly stated, were: (a) The assumption that emotionally arousing or stressful incidents result in "unreliable memory". The Commission found that recent research had established that emotion/eliciting events are remembered very well, particularly the central actions as opposed to the peripheral details. In other words, the presence of an emotional reaction in the witness would increase witness reliability rather than decrease it. (b) The assumption that rates of forgetting are the same for all types of memories. Recent research that the rate of retention of memory is greater for remarkable and emotional events than for unremarkable events. (c) The assumption that misinformation received by a witness after an event can lead the witness to respond in accordance with the misinformation rather than the event. Research considered by the Commission showed that young children are vulnerable to the "misinformation effect". However, where children were direct participants in the event, they had increased resistance to post event suggestion. (d) Traumatic memory is different to other types of memory. Traumatic memory can lead to extremes of either retention or forgetting. Most individuals always remember the trauma (which is generally accompanied by intrusive reexperiencing symptoms), but some remain amnesic for the trauma for some or all of their lives. Accordingly, general statements that guide the assessment of whether memories are "fresh", are not easily made in relation to traumatic memories." Other writers have suggested that poor memory for peripheral details does not indicate unreliability of evidence in relation to central or salient features - see for example, "Who is telling the truth?, Psychology, Commonsense and the Law", (2006) 80 ALJ 655 per McClellan CJ at CL at 663-664. 176I have taken these matters into account in assessing the evidence of each of the witnesses, and particularly where inconsistencies have been identified in the evidence given by them with their prior statements or evidence. Each of the witnesses were doing their best to recall events which were highly traumatic. None had their credit successfully impugned. Justin McMaster was particularly impressive, and made appropriate concessions. However, he had no recollection of the critical events, or of much of what followed his admission to hospital. 177Having regard to the whole of the evidence, the following facts have been established on the balance of probabilities: (1)Both Kayla and Georgia were subjected to violent and terrifying assaults during the home invasion which left them highly traumatised. (2)Justin McMaster observed his sister in a highly vulnerable state and was very concerned for her welfare. (3)Justin McMaster was acting courageously in an attempt to free Kayla, by arming himself with the curtain rod, and returning to the front of the property. (4)Justin McMaster was observed by Constable Fanning running out along the driveway of number 4 Holmes Street and onto the roadway. (5)At the time he first saw him, Constable Fanning drew his service revolver, not knowing that he was not an offender, but Kayla's brother. (6)At that time, both Kayla and Georgia were on the road, at the boundary of numbers 6 and 8 Holmes Street, talking to Constable Fanning and Constable Kleinman. (7)The Police vehicle was parked outside number 8 Holmes Street, and did not have its lights illuminated. (8)The street lighting was such that two lights shed some light on Holmes Street between number 4 and number 8. The street was not in darkness. (9)There was good lighting at the front of the premises at number 4 Holmes Street which allowed Justin McMaster to be seen as he emerged along the driveway. (10)Justin McMaster was holding the curtain rod in his left hand as he ran at about waist height. This meant that it extended well above his shoulder. (11)Both Constable Fanning and Constable Kleinman were standing towards the western gutter of Holmes Street. Constable Fanning was in front of, and to the left of Constable Kleinman. (12)Constable Fanning could not see what Constable Kleinman was doing, although she was in his peripheral vision. (13)Justin McMaster ran down the middle of Holmes Street. He was at no time running towards either Constable Fanning or Constable Kleinman. (14)The manner in which Justin McMaster held the curtain rod did not change. (15)Constable Fanning shouted out "Stop Police, stop". (16)Constable Kleinman said "Put it down, put it down". (17)Constable Fanning and Constable Kleinman did not communicate at all with each other as to what action should be taken. (18)When Justin McMaster was about 5 metres away, Constable Fanning discharged his service pistol towards him, diagonally across Holmes Street. (19)In doing so, Constable Fanning intentionally lowered his aim, so as to shoot Justin McMaster in the abdomen so as not to kill him. (20)That occurred just less than two minutes after the Police had arrived in Holmes Street. (21)Almost simultaneously, Constable Kleinman had her taser aimed at Justin McMaster. That led to the video film being exposed of what occurred after Justin McMaster had been shot. (22)Constable Fanning, when advised by Georgia that Justin McMaster was her son, said "I did not know that". (23)At the time he shot him, Constable Fanning believed that Justin McMaster was "one of the bad dudes" and was carrying a stick. (24)At the time, Constable Fanning was concerned about the report that a knife had been used during the home invasion. (25)After the shooting, Constable Fanning rendered appropriate aid to Justin McMaster until an ambulance arrived. (26)Constable Fanning said to Justin McMaster, whilst rendering aid to him, "Why didn't you stop?" (27)Justin McMaster had no recollection of what occurred from the time he emerged onto Holmes Street. (28)Justin McMaster did slow down his pace as he ran along Holmes Street. Constable Kleinman referred to him slowing to a "swift walk" in her ERISP interview (see [136] above), and Constable Fanning, consistent with this evidence, told Investigating Police that there had been a reduction in the threat posed by Justin McMaster before he was shot. This could only mean that Justin McMaster had slowed down. 178On the basis of those findings, I find that there was no direct threat by Justin McMaster towards either Constable Fanning or Constable Kleinman at the time he was shot by Constable Fanning. Did the Shooting of Justin McMaster Constitute Battery? 179Halbury's Laws of Australia at [415-345] defines a battery as "an act of the defendant which directly or either intentionally or negligently causes some offensive physical contact with the person of the plaintiff". At footnote 5, the learned authors go on to say: "It is also battery if the defendant makes offensive contact with the plaintiff's person through an instrument under the defendant's control ..." 180I am satisfied on the balance of probabilities that Constable Fanning intentionally discharged his firearm towards Justin McMaster's abdomen so as to wound, and not kill him. In doing so, he committed a battery upon Justin McMaster. 181Section 3B of the Civil Liability Act 2002 ("CLA") provides as follows: "3B Civil Liability excluded from Act (1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows: (a) Civil liability in respect of an intentional act that is done with intent to cause injury or death or that is sexual assault or other sexual misconduct - the whole act except Part 7 (Self defence and recovery by criminals) in respect of civil liability in respect of an intentional act that is done with intent to cause injury or death, ..." 182The language of the section has been described as "curiously imprecise", however, its purpose has a broad policy objective of leaving those who committed intentional torts to the operation of the general law - see Dean v Phung [2012] NSWCA 223 per Basten JA at [26]. It has been held to apply to intentional acts by police officers - see State of New South Wales v Ibbett (2005) 65 NSWLR 168. 183As the shooting by Constable Fanning of Justin McMaster was an intentional act done with intent to cause injury, pursuant to s 3B of the CLA, the provisions of the Act do not apply in respect of civil liability and the award of damages arising from that intentional act, excepting the self defence provisions contained in Part 7 of the Act. I will refer to those below. The Plaintiff's Alternative Case in Negligence 184The plaintiff in his Amended Statement of Claim pleaded an alternative cause of action in negligence, the particulars of which were listed in [24] thereof as follows: (i) Failed to keep any or any proper lookout; (ii) Failed to take any or any adequate precaution for the safety of the plaintiff; (iii) Exposed the plaintiff to a risk of injury which could have been avoided by reasonable care on each part properly instructing the Police officers in the performance of his duties; (iv) Failed to observe that the plaintiff was in a position of peril in the circumstances; and (v) Failed to take any or any adequate precautions for the safety of the plaintiff. (vi) Pulled the trigger on his service pistol when it was unsafe to do so; (vii) Failed to adopt procedures laid down in the Police instruction manual. 185The defendant has met this claim by submitting that, in the circumstances of this case, the Police officer owed no duty of care to Justin McMaster. Relying on the Australian Capital Territory v Crowley [2012] ACTCA 52, it was submitted that the Police officer was not liable for the act done in the course of operational duties. Thus, the threshold question is whether Constable Fanning owed Justin McMaster a duty of care in all of the circumstances. 186In Crowley, the Court of Appeal traversed the authorities in England and Australia from [270]. The starting point is the House of Lords decision in Hill v Chief Constable of West Yorkshire [1989] AC 53 where the House of Lords unanimously found that the Police did not owe a duty of care to individual members of the public in discharging their statutory duties while investigating crimes. 187In Crowley, the Court of Appeal noted that the decision in Hill was cited with approval by the High Court of Australia in Crimmins v Stevedoring Industry Finance Committee (1999) CLR 1 and by the same court in Sullivan v Moody (2001) 207 CLR 562 (see [281]). In Sullivan v Moody, at [57], the Court said: "In Hill v Chief Constable of West Yorkshire the House of Lords held that Police officers did not owe a duty to individual members of the public who might suffer injury through their careless failure to apprehend a dangerous criminal. Lord Keith of Kinkel pointed out that the conduct of a Police investigation involves a variety of decisions on matters of policy and discretion, including decisions as to priorities in the deployment of resources. To subject those decisions to a common law duty of care, and to the kind of judicial scrutiny involved in an action in tort, was inappropriate." 188Similarly, the Court of Appeal referred to decisions of the High Court in Tame v State of New South Wales, supra, and D'Orta-Ekenaike v Victorian Legal Aid (2005) 223 CLR 1. Further, the Court of Appeal pointed out that common law duties cannot be imposed upon authorities such as the Police if the discharge of such a duty would conflict with statutory duties owed by that authority (see [287]). The Court referred to Sullivan v Moody at [60] where the High Court said: "But if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists. Similarly, when public authorities, or their officers, are charged with a responsibility of conducting investigations, or exercising powers, in the public interest, or in the interests of a specified class of persons, the law would not ordinarily subject them to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting claims or obligations." 189The Court of Appeal noted (at [289]) that the same principle was relied on by Campbell JA in State of New South Wales v Tyszyk [2008] NSWCA 107 at [125]. 190The plaintiff here relies on the very fact that he was not an alleged offender or suspect, but a bystander. As such, he relied on coming within the exception to the principle that no duty of care would arise in circumstances of Police operations, articulated in the Court of Appeal's decision at [311]. The trial Judge had held that sometimes the Police would not be able to distinguish between, on the one hand, a group of bystanders and victims, and on the other hand, alleged offenders and suspects. The Court of Appeal disagreed with that conclusion and said at [311]: "There is clearly a difference between having taken control and being in the process of taking control. In the former case, the person in control usually has the ability to control and risk of harm which is in issue. By contrast, in the latter case, the "situation" is still fluid. In any event, control of a "situation" is a vague notion. A more concrete notion is control of a group of people or of a geographical area. We think a member of the Police force might be in control (in the relevant sense) of a group of bystanders at a scene, but not in control of an alleged offender or suspect. Therefore, contrary to the view of the trial Judge, it is possible, subject to other considerations, that a member of the Police force may owe a duty of care to a bystander, but not to an alleged offender or suspect." 191In the circumstances of that case, the Police did not assume a duty of care to Mr Crowley. Here, where the shooting by Constable Fanning of Justin McMaster took place within a short time of the arrival of the Police at Holmes Street, Colyton, in circumstances where the Police officers in attendance had not had sufficient time to first, determine exactly what had occurred prior to their arrival, and secondly, to identify both victims and alleged offenders, the distinction between an alleged offender or suspect and bystander becomes moot. Consistent with that was Constable Fanning saying to Justin McMaster after he was shot, "I thought you were one of the bad dudes. You were carrying that stick". In the circumstances that pertained here, I find that the Police officer owed no relevant duty of care to Justin McMaster. There is no utility in further determining whether, if a duty did exist, there was breach of that duty and causation established in respect of Justin McMaster's injuries. Does the Police Operational Immunity extend to Intentional Torts 192The defendant submitted that the "immunity" of Police to exposure to actions in negligence whilst involved in operational activities, extended to intentional acts carried out by Police during those activities. The plaintiff submitted that "immunity" was not the correct language, but rather, the defendant did not owe Mr Master any relevant duty of care, as I have held above. The plaintiff, by his counsel, further submitted that the mere fact that the correct legal analysis requires a conclusion that a duty of care did not exist, makes it clear that the principle does not operate in respect of a claim in trespass to the person or battery. 193The defendant relied on a number of authorities including State of New South Wales v Klein (2006) Australian Tort Reports 81-862, Cran v New South Wales (2004) 62 NSWLR 95, and Brooks v Commissioner of Police of the Metropolis [2005] 1WLR 149, as well as the cases previously cited above. The plaintiff submitted that all of those decisions involve claims in negligence, and none of them precluded a plaintiff's entitlement to bring proceedings against Police for intentional torts. Otherwise, a number of decisions finding Police liable for intentional torts committed during the course of their duties would have been wrongly decided - see for example State of New South Wales v Riley (2003) 57 NSWLR 496, New South Wales v Koumdjiev (2005) 63 NSWLR 353, New South Wales v Ibbett, supra, and New South Wales v Delly (2007) 70 NSWLR 125. It was submitted that there was no suggestion in those cases that the plaintiff's claims were precluded by any "operational immunity". Further, the House of Lords had upheld a plaintiff's claim in battery against a policeman in Ashley v Chief Constable of Sussex Police [2008] 1AC 962. 194The defendant also relied on Stingel v Clark, supra as authority for the application to intentional torts of the absence of a duty of care giving rise to an operational immunity. The plaintiff submitted that Stingel concerned the interpretation of the Limitation of Actions Act 1958 (Vic) and laid down no such general principle. I agree. 195I am not persuaded that the so called principle of operational immunity, i.e. the fact that no duty of care arises towards alleged offenders or suspects, has any application to intentional torts. In Hill, Lord Keith said at [59]: "There is no question that a Police officer, like any one else, may be liable in tort to a person who is injured as a direct result of his acts or admissions. So he may be liable in damages for assault, unlawful arrest, wrongful imprisonment and malicious prosecution, and also for negligence." That passage was cited by the Court of Appeal in Crowley at [279]. In State of New South Wales v Spearpoint [2009] NSWCA 233 at [9], Ipp JA said: "There are many cases in which it has been held that Police officers and the Police service as a whole do not owe a duty of care to a plaintiff in the particular circumstances of each of those cases, but so far there is no authoritative decision in Australia which holds that there is an absolute immunity afforded to Police for their conduct in the course of their duties." His Honour went on to state, referring to State of NSW v Tyszyk, that each case would depend on its own facts. The Defence of Self-defence 196As set out above, pursuant to s 3B of the CLA, Part 7 of the Act applies. It provides relevantly as follows: "Part 7 Self-defence and Recovery by Criminals 51 Part Applies to Civil Liability for Death, Injury or Property Damage. (1) This Part applies to civil liability of any kind for personal injury damages (as defined in Part 2) or damage to property. (2) This Part extends to any such liability even if the damages are sought in an action for breach of contract or any other action. (3) This Part does not apply to civil liability that is excluded from the operation of this part by s 3B. 52 No Civil Liability for Acts in Self-Defence (1) A person does not incur a liability to which this Part applies arising from any conduct of the person carried out in self-defence, but only if the conduct to which the person was responding: (a) was unlawful, or (b) would have been unlawful if the other person carrying out the conduct to which the person responds had not been suffering from a mental illness at the time of the conduct. (2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary: (a) to defend himself or herself or another person, or (b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or (c) to protect property from unlawful taking, destruction, damage or interference, or (d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them. 3) This section does not apply if the person uses force that involves intentional or reckless infliction of death only: (a) to protect property, or (b) to prevent criminal trespass or to remove the person committing criminal trespass." 197There is some tension between s 3B(1)(a) and s 51(3). Section 3B(1)(a) means that the CLA does not apply to civil liability in respect of intentional acts except for Part 7. Section 51(3) provides that Part 7 does not apply the civil liability that is excluded from the operation of Part 7 by s 3B. As self-defence is not excluded pursuant to s 3B(1)(a), s 52 applies. 198The defendant submitted that the conduct of Justin McMaster, in running down the middle of Holmes Street carrying a curtain rod, was conduct that was unlawful. It was further submitted that the action of Constable Fanning, in shooting Justin McMaster with his service pistol, was necessary to defend himself and Constable Kleinman, and further that it was a reasonable response in the circumstances to the circumstances as he perceived them. 199I do not accept those submissions. The conduct of Justin McMaster, to which Constable Fanning was responding to, was not unlawful. Further, Constable Fanning, by shooting Justin McMaster, was not defending himself or Constable Kleinman. He shot Justin McMaster because he failed to respond to the command of Constable Fanning to stop. Immediately when he went to the aid of Justin McMaster he said to him, "Why did you not stop?" He further believed at that time that he was carrying a stick, and that the threat, if any, had diminished by Justin McMaster slowing down. Further, Justin McMaster was proceeding down the centre of the road, not towards either Constable Fanning or Constable Kleinman. Nor did Constable Fanning communicate in any way with Constable Kleinman as to her perception of the events. He knew she had a taser that was operational, and she in fact activated that taser almost simultaneously with him shooting Justin McMaster. 200Constable Fanning's conduct in discharging his service pistol at Justin McMaster was not a reasonable response in the circumstances as he perceived them. He did not know who Justin McMaster was, or what he was doing. However, because he had drawn his pistol when he first saw Justin McMaster in the driveway of 4 Holmes Street, its use became inevitable because of his inability to change to some other form of appointment, for example, capsicum spray or baton. I therefore find that the defence of self-defence is not made out pursuant to s 52 of the CLA. 201A common law a defence of self-defence cannot be made out unless the force used was both necessary and proportionate to the threat faced - see Fontin v Katapodis (1962) 108 CLR 177. In Underhill v Sherwell, supra, Beazley JA said in relation to self-defence: "Any defensive act in which a person who is in danger engages must be reasonably necessary ... if excessive force is used the defence fails." 202The plaintiff has submitted that the use of a service pistol in the circumstances here was not proportionate to the threat as perceived by Constable Fanning, relying on Cook v Beal (1699) 91ER 1014. 203The burden of proving that the force used was both reasonable and proportionate is on the defendant. I am not satisfied here that the response by Constable Fanning was either necessary, nor in reasonable proportion to any threat posed by Justin McMaster. The mere fact that Justin McMaster was carrying a piece of curtain rod was elevated by the defendant to him acting in an unlawful way by threatening the Police officers with a weapon. He did no such thing. Rather, he was searching for his sister and it had not as yet become evident to him that his sister was safe, and about to be assisted by the Police officers. Whilst one cannot speculate about what might otherwise have happened, the use of his pistol by Constable Fanning was precipitated by his early decision to draw the pistol when Justin McMaster first came into view on the driveway of number 4 Holmes Street, some distance away, and Constable Fanning's determination to use it, notwithstanding that there was no direct threat to either himself or Constable Kleinman. His evidence to the effect that he acted out of self-defence in protection of Constable Kleinman was a post-event justification of his actions. The Defence of Necessity 204Counsel for the defendant submitted that the defendant's case on self-defence was inextricably interwoven with its defence based on necessity. Counsel submitted that the principles of necessity are applicable as justifying the actions of Constable Fanning. For the same reasons outlined in paragraphs 199 - 203 above, I find that the defence of necessity is not made out in respect of the shooting by Constable Fanning of Justin McMaster. Assessed objectively, there was no necessity for him to do so. Contributory Negligence 205No submissions were advanced on behalf of the defendant in respect of contributory negligence of Justin McMaster in the event that I found the plaintiff's case was established as an intentional tort; nor could, on the evidence in this case, a case be made out on the basis of contributory negligence of Mr McMaster. For that reason there will be no finding of contributory negligence by the plaintiff. Effect of Alleged Admissions Against Interest by Justin McMaster 206The defendant relies on statements made by Justin McMaster at Westmead Hospital following his surgery on 26 September 2011, referred to in [25] above, the statement he made to Detective Sergeant Whale in an interview later that day, referred to in [26] above, together with a statement made to Dr Roberts and evidence he gave in previous court proceedings, referred to in [31] and [34] above, respectively. 207I do not find that the statements made by Justin McMaster to Constable Chan or Detective Sergeant Whale in hospital amount to voluntary admissions against interest by Justin McMaster. They were made within a short time of him undergoing major surgery, and at a time when he was still well affected by drugs administered in respect of his injuries and surgery. He had no recollection of either conversation and disavowed the proposition that Constable Fanning had made an honest mistake in shooting him when it was put to him in cross-examination. Nor am I bound in any way by a belief that may have been held by him at some previous time that he was shot by accident. The question of who he blamed on a previous occasion for his injuries is irrelevant to my determination of the legal issues in this case. Determination in respect of Justin McMaster 208For the reasons set out above, I find the claim brought by Justin McMaster against the Defendant, based on an assault and battery, and trespass to the person as an intentional tort, has been established. The defendant has not made good any of the defences pleaded by it and there will therefore be a verdict for the plaintiff, Justin McMaster, in the proceedings brought by him, and damages as assessed below. The Claims brought by Kayla McMaster and Georgia Karakizos 209The claims brought by Kayla McMaster and Georgia Karakizos are both brought pursuant to s 4 of the Law Reform (Miscellaneous Provisions) Act 1944 and are derivative upon the finding made in the above proceedings, that the act of Constable Fanning in shooting Justin McMaster was a battery and thereby created a liability to Justin McMaster on the part of the defendant. Both plaintiffs claim damages for nervous shock, depressive illnesses and associated sequelae. 210Section 4, despite being repealed, applies by virtue of Clause 11 of Schedule 1 of the CLA which provides as follows: "11 Law Reform (Miscellaneous Provisions) Act 1944 Part 3 of the Law Reform (Miscellaneous Provisions) Act 1944 continues to apply despite its repeal to and in respect of Civil liability that is excluded from the operation of Part 3 of this Act by s 3D." 211Section 4 provided as follows: "4 Extension of liability in certain cases (1) The liability of any person in respect of injury caused after the commencement of this Act by an act, neglect or default by which any other person is killed, injured or put in peril, shall extend to include liability for injury arising wholly or in part from mental or nervous shock sustained by: (a) a parent or the spouse of the person so killed, injured or put in peril, or (b) any other member of the family of the person so killed, injured or put in peril where such person was killed, injured or put in peril within the sight or hearing of such member of the family. (2) Where an action is brought by a member of the family of any person so killed, injured or put in peril in respect of liability for injury arising wholly or in part from mental or nervous shock sustained by the plaintiff as aforesaid and claims have been made against or are apprehended by the defendant at the suit of other members of the family of such person in respect of liability arising by operation of subsection (1) out of the same act, neglect or default the defendant may apply to the Court in which the action is brought and that Court may thereupon stay any proceedings pending at the suit of any such other member of the family arising out of the same act, neglect or default and may proceed in such manner and subject to such regulations as to making members of the family of such person parties to the action as to who is to have the carriage of the action and as to the exclusion of any member of the family who does not come in within a certain time as the Court thinks just. (3) Where any application under subsection (2) is made the action shall be for the benefit of such members of the family of the person so killed, injured or put in peril as are joined by the Court as plaintiffs pursuant to such application and the Court may give such damages as it may think proportioned to the injury resulting to the persons joined as plaintiffs respectively, and the amounts so recovered after deducting the costs not recovered from the defendant shall be divided amongst the persons joined as plaintiffs in such shares as the Court finds and directs. (3A) Where any case to which subsection (3) applies is tried by a judge sitting with a jury, the jury shall find the shares of damages and the judge shall direct in accordance with the finding. (4) Any action in respect of a liability arising by operation of subsection (1) shall be taken in the Supreme Court or the District Court. (5) In this section: Member of the family means the spouse, parent, child, brother, sister, half-brother or half-sister of the person in relation to whom the expression is used. Parent includes father, mother, grandfather, grandmother, stepfather, stepmother and any person standing in loco parentis to another. Child includes son, daughter, grandson, granddaughter, stepson, stepdaughter and any person to whom another stands in loco parentis. Spouse means: (a) a husband or wife, or (b) the other party to a de facto relationship within the meaning of the Property (Relationships) Act 1984, but where more than one person would so qualify as a spouse, means only the last person so to qualify." 212As Georgia Karakizos was the mother of Justin McMaster (the person injured) and Kayla McMaster his sister, the liability of the defendant to Justin McMaster extends to both of them for any injury arising "wholly or in part from mental or nervous shock". 213The defendant has not made out any of the defences relied on by it as referred to above, and therefore there will be a verdict for each of the plaintiffs, Georgia Karakizos and Kayla McMaster and a judgment for damages as assessed below. Assessment of Damages - Justin McMaster 214Justin McMaster was admitted to Westmead Hospital on 26 September 2011 and underwent two surgical procedures. On the night of his admission he underwent a laparotomy and small and large bowel resection. The following day he underwent a further laparotomy and end to end transfer colon anastamosis and wash out with removal of a bullet fragment from his left buttock. It was between the two operations that the plaintiff underwent the interview referred to above with Detective Whale. He was discharged from hospital on 6 October 2011. 215Following his discharge from hospital, the plaintiff remained under the care of his local medical officer, Dr Avva. He remained on powerful analgesics and required regular dressings for his wounds. 216The medical evidence upon which the plaintiff relied was of fairly narrow compass. He was examined by Dr J A Roberts, psychiatrist, on 12 March 2012. At that time he complained of problems with stomach pain after eating, and was paranoid on leaving the house. Dr Roberts recorded that at the time he was shot the plaintiff felt that he was going to die. Dr Roberts was of the opinion that, as a result of the shooting, the plaintiff had developed post-traumatic stress disorder of moderate to severe degree. He recommended ongoing cognitive behavioural therapy from a psychologist, together with pharmacotherapy administered by a psychiatrist. Dr Roberts did not consider at that time that the plaintiff's condition had stabilised. 217The plaintiff was also examined by Dr Vickers, consultant gastroenterologist and hepatolagist, on 21 September 2012. Examination revealed a long mid-line scar of 22cms on his abdomen which was quite tender in the upper portion. Dr Vickers was of the opinion that the problems of pain and bloating in the plaintiff's stomach were indicative of a kink in the small intestine due to adhesions or an anastamotic stenosis, which was related to the surgery he underwent. He also noted the disruption to the plaintiff's bowel function and his sensitivity to cold temperatures. He noted the plaintiff's restriction in his recreational activities including touch football, and deferred to Dr Roberts in respect of what he described as panic attacks. Dr Vickers was of the opinion that there was a strong likelihood that the plaintiff had suffered a chronic partial sub-acute small bowel obstruction which required further investigation and if confirmed, a further laparotomy. Dr Vickers' opinion was that there was a life-long risk of recurrent adhesions and small bowel obstruction which can occur in 5% of patients following a laparotomy, of which about one-third will require further surgery. The cost of specialist consultation, CT scans, surgery and neurological investigation and assessment for gastric reflux disorder was in the order of $25,000. 218The plaintiff was examined on behalf of the defendant by Dr D Samuell, psychiatrist, on 14 March 2013. Dr Samuell was qualified with all the plaintiff's relevant medical history. Dr Samuell took a history from the plaintiff that for a year after the incident, he had unpleasant, intrusive recollections of the events. Dr Samuell accepted that the entire evening of the event was highly distressing for the plaintiff, but that he now suffered no psychiatric diagnosis. As to Dr Roberts diagnosis of a post-traumatic stress disorder, Dr Samuell stated that it was "quite possible that this was reasonable to diagnose at that time. Given the passage of time, the most obvious conclusion is that he has since recovered". 219The full extent of the dispute between Dr Samuell and Dr Roberts is whether the plaintiff's post-traumatic stress disorder is continuing or not. The plaintiff himself said that his condition was improving, and I find that his PTSD has diminished over time, and will continue to do so. 220The plaintiff was born on 17 February 1992 and left school in year 12 before completing the Higher School Certificate. He obtained some casual labouring work from time to time. In March 2010 he formed a relationship with Jasmin Potts and after six months she moved in with him at 4 Holmes Street. They now have a daughter, Melody. On 26 September 2010 the plaintiff had arranged to commence employment at Mario's Pastizzi. The work involved picking and packing pastries into bags. 221The plaintiff gave evidence that when he left hospital he was in a lot of pain and couldn't walk or move without applying pressure to his stomach area. He was on a liquid diet for some time following his discharge from hospital. When he was discharged, he and Jasmin moved to her parents' home at Banks Drive. He remained in severe pain for some four to five months and was prescribed painkilling medication from Dr Avva, as well as Zoloft for depression and anxiety. 222The plaintiff was unable to go out of the house for a few months. He was scared because the home invaders were still on the run. He knew them and their family were known to him. Eventually they were arrested and after some time he commenced to go out of the house. It took him a long time to return to Holmes Street to see his mother. 223The plaintiff had tried to return to work by doing volunteer work with his brother as a fencer, and also through a company, Windscreens R Us as well as roof tiling. He had a 15 kilo weight limit imposed and suffered pain and tiredness following work. The plaintiff gave evidence that he would like to continue working on the windscreen into the future and could do so provided that there was someone else to do the heavier work. 224In cross-examination the plaintiff agreed that he had not filed a tax return in the three years since he left school. He had worked at Mario's Pastizzi, but only on a casual basis and had no steady employment at all in the period leading up to the incident. He agreed that his general practitioner, Dr Avva, had cleared him for work from 8 November 2011, following which he worked with Mario's Pastizzi on 28 November, but could not work properly. He had difficulty moving the containers. 225The plaintiff was cross-examined about his fear of being in public and catching trains relating to his fear of the perpetrators of the home invasion. He had sought no psychological treatment in relation to his fears. He had talked to a councillor on one occasion only and did not go back. The plaintiff volunteered that he underwent his own form of therapy which he referred to as "musical therapy" or "rapping". He agreed that he as looking for work through Centre Link and said he would do anything, but it would be limited to light hands on work. 226It was put to the plaintiff that he suffered panic attacks because of his fear of the perpetrator of the home invasion coming after him and members of his family and gave the following answer: "A: Bits and pieces. Really loud bangs often remind me of the gun shot. That was when my first major panic attack happened when I heard a loud bang. One of the first couple of times I went back to my mum's house in Holmes Street work was getting done on the neighbour's house. There was a loud banging and I had a massive, severe panic attack. Ambulances got called. The ambulance drivers at first they took the heart reading test and stuff on me because they thought I was having a heart attack as well. Q: Just so one can understand, since then, what I want to ask you is the cause of the panic attacks that you've been having have related to a fear of the perpetrator's coming back after you and your family? Am I right? A: Both. As I said, the loud bang give me panic attacks due to getting shot, almost dying and losing my life and my family." 227It was put to the plaintiff that he determined that he did not want to undergo psychological treatment in respect of his problems and he answered: "Not that I did not want to go, but I didn't feel safe enough to go." 228Whilst it is clear that the home invasion affected the plaintiff following his injury, in that he had a fear of being identified by the perpetrators who were still at large, that fear was quite rationally based in that he knew the perpetrators, knew that they were of violent disposition, and knew that they knew where his family lived. He suffered no injury in the home invasion and therefore the impact of it on him, whilst relevant to his assessment of damages, does not result in a significant discount in those damages. Whilst the defendant did not plead that the plaintiff failed to mitigate his damages, it was submitted that the plaintiff did not seek treatment and that that should be taken into account. In all of the circumstances I find that it was reasonable of the plaintiff to act in the way he did and that there should be no reduction for a failure to mitigate his own damages. There was no dispute as to the plaintiff's physical symptoms, nor challenge to his ongoing physical symptoms concerning his problems of eating, and his incapacity for anything other than light hands on work. I accept the plaintiff's submission that he has significant interference with his capacity for the fundamentals of life, eating, toileting and moving of the lower torso. 229For general damages, given the seriousness of the injuries, the two major operations undergone by the plaintiff, his prolonged hospitalisation and convalescence and his ongoing disabilities, I assess general damages in the sum of $175,000. 230I award interest on past general damages, being 2% of $100,000, over 2.2 years, a total of $4,400 for interest on past general damages. For past wage loss, I note that the plaintiff had limited work history at the time of his injury, but that he was due to start full time casual work. I accept that at the time of his injury, given his age, that work would have rendered an income of $350 net per week. The plaintiff has claimed the sum of $350 per week for the past loss of earnings for two years and then until aged 65. 231For the past loss of wages, I accept that the plaintiff would have commenced work at Mario's Pastizzi, but given his work history, he may not have worked for the whole of the time from 26 September 2011 until the date of judgment. To take into account the likelihood that he would have been off work from time to time, I assess his damages at $350 per week for 18 months, or 78 weeks, a total of $27,300. 232I award interest on past wage loss calculated at 8% per annum for a period of 2.2 years of $4,800. 233For future economic loss the relevant test is whether the plaintiff's injuries have led to a diminution of his earning capacity that is or may be productive of financial loss - see Medlin v State Government Insurance Commission (1995) 182 CLR 1. The plaintiff has submitted that the assessment here should be by way of a buffer, relying on State of New South Wales v Moss (2000) 54 NSWLR 536. At [87], Hayden JA (as he then was) stated: "Where earning capacity has unquestionably been reduced but its extent is difficult to assess reflects the proposition that to paraphrase, from want of precise evidence, does not necessarily result in non-recovery of damages." 234This is not a case where a strict mathematical approach should be taken to the assessment of the plaintiff's future economic loss of earning capacity. However, he is still very young and has a long work history in front of him in which he will be forced to compete with able bodied persons for unskilled positions, where he has limits on his ability to carry out the work involved. For that reason, to properly compensate him, the buffer must be a substantial amount. I note that the plaintiff claimed $350 per week loss, which, to age 65, on the 3% tables, with a discount of 15% for vicissitudes would amount to an award of slightly less than $380,000. I award the sum of $200,00 for this head of damages. 235For future medical expenses, I note that whilst the plaintiff has had little ongoing treatment other than the supervision of his local medical officer, there is evidence that he will require ongoing supervision by a specialist gastroenterologist and surgeon, and given the extent of the injuries, there may be a need for future surgery. In addition, as he matures, he may have the benefit of psychological counselling. For future medical expenses I award the sum of $25,000. I note past treatment expenses are claimed in the sum of $953, which I have rounded down to $950. 236I therefore assess damages as follows: General Damages $175,000.00 Interest on General Damages $4,400.00 Past Medical Expenses $950.00 Future Medical Expenses $25,000.00 Past Loss of Wages $27,300.00 Interest on Past Loss of Wages $4,800.00 Future Loss of Earning Capacity $200,000.00 Total $437,450.00 Plaintiff's Claim for Aggravated and Exemplary Damages 237The plaintiff's claim for aggravated and exemplary damages was pleaded as follows: "18 The plaintiff's hurt and injury was increased by: (i)his knowledge that his shooting was unfair and unjustified (ii)his knowledge that the fact that the shooting was disseminated to the media and thereafter published in the media (iii)his knowledge that he was subject to the ignominy and humiliation of being alleged as an offender rather than as an innocent victim." Particulars of Exemplary Damages (i)the shooting of the plaintiff constituted a contumelious disregard for the rights of a citizen (ii)the shooting of the plaintiff was unnecessary and occasioned humiliation and oppression to that plaintiff. 238In New South Wales v Ibbett (2006) 229 CLR 638 at [31], the High Court described aggravated damages as: "31. Aggravated damages are a form of general damages given by way of compensation for injury to the plaintiff, which may be intangible, resulting from the circumstances and manner of wrongdoing ... " referring to Uren v John Fairfax & Sons Pty Limited (1966) 117 CLR 1118 at [129] - [130]. 239The relevant principles to be applied in determining whether an award of aggravated damages was appropriate are set out in NSW v Riley, supra, per Hodgson JA at [127] - [131]. The same principles were applied by Tobias JA in NSW v Delly, supra, at [80]. 240In "Assessment of damages for personal injury and death", 4th Ed, Luntz at [1.7.10], the learned author states: "Aggravated damages may be awarded where the defendant has acted, either in committing a tort or thereafter, with contumelious disregard of the plaintiff's rights, in an insulting or high-handed way or with malice. The additional factor which is required, is that such conduct must have increased the plaintiff's suffering." 241The learned author referred to Uren, and went on to state: "In another sense, "aggravated damages" are awarded whenever the amount allocated to pain and suffering is increased by virtue of the horrifying circumstances in which the injury occurred." 242I am satisfied that the plaintiff suffered indignity and outrage from the deliberate and unjustifiable conduct of Constable Fanning shooting him. For that reason I propose to award the sum of $25,000 by way of aggravated damages. 243In Lamb v Cotogno (1988) 164 CLR 1 at p 8, the majority referred to the oft-cited description of exemplary damages contained in Mayne & McGregor on Damages, 12th Ed, (1961) at p 196: "Such damages are variously called punitive damages, vindictive damages, exemplary damages and even retributory damages. They can apply only where the conduct of the defendant merits punishment, which is only considered to be so where his conduct is wanton, as where it discloses fraud, malice, violence, cruelty, insolence or the like or, as it is sometimes put, where he acts in contumelious disregard of the plaintiff's rights." 244The Court referred to the judgment of Brennan J in XL Petroleum (NSW) Pty Limited v Caltex Oil (Australia) Pty Limited (1985) 155 CLR 448 at 471: "As an award of exemplary damages is intended to punish the defendant for conduct showing a conscious and contumelious disregard of the plaintiff's rights and to deter him from committing like conduct again, the considerations that enter into the assessment of exemplary damages are quite different from the considerations that govern the assessment of compensatory damages. There is no necessary proportionality between the assessment of the two categories. In Merest v Harvey (1814) 128 ER 761, substantial exemplary damages were award for a trespass of the high-handed kind which occasioned minimal damage." 245In State of New South Wales v Riley, Hodgson JA referred at [141] to the use of excessive force by police officers causing injury to a person being arrested as being "a most serious matter". More so here, where the plaintiff was not being arrested. 246In the circumstances here, the conduct of Constable Fanning in shooting Justin McMaster was conduct carried out in contumelious disregard for the plaintiff's rights. Notwithstanding the short time that Constable Fanning had been on the scene, from the moment he saw Justin McMaster emerging along the driveway of number 4 Holmes Street, he drew his service pistol which thereafter deprived him of the opportunity to use any other appointments that the circumstances required. As I have held above, Justin McMaster was not a direct threat to Constable Fanning or Constable Kleinman, and the use of the pistol to shoot Justin McMaster in the circumstances was entirely disproportionate to any risk to the Police. In those circumstances an award of exemplary damages should be made to deter such conduct from reoccurring. Recognising that such damages should be awarded with restraint, I propose to award the sum of $50,000 to the plaintiff by way of exemplary damages (see Ibbett, per Spigelman CJ at [39] - [41]). 247I therefore award, for aggravated damages, the sum of $25,000 and for exemplary damages the sum of $50,000. The total damages to be awarded to the plaintiff will therefore be $512,450. Assessment of Damages - Georgia Karakizos 248Mrs Karakizos was born on 1 January 1969 in Greece and arrived in Australia at the age of two. She is the mother of eight children, six of whom were living with her on 26 September 2011. She had a history of post-natal depression and therefore was predisposed to the development of depression. 249Mrs Karakizos was subjected to a vicious and traumatic assault during the home invasion. Not only did she suffer severe injuries herself, but she was concerned for the welfare of her partner, Paul, her daughter Kayla, and her son Dane. It was common ground between the medical experts qualified by both parties that she suffered post-traumatic stress disorder as a result of her experience during the home invasion. The report of Dr Roberts of 8 April 2012 was relied on by the plaintiff. He was of the opinion that as a result of witnessing her son being shot by the Police, the plaintiff suffered posttraumatic stress disorder which required ongoing treatment. He described her long-term prognosis in terms of "approximately one-third of those who qualify for PTSD have a chronic condition, namely where symptomatology continues to produce distress". 250The plaintiff received psychological counselling from Mr Peter Khnana from November 2012 for PTSD, agoraphobia resulting in panic attacks and major depression (with suicidal ideation). 251Dr Samuell examined the plaintiff on behalf of the defendant and provided a report dated 25 February 2013. Dr Samuell is of the following opinion: "Understandably, this was a very distressing event for the claimant. In my view, during the course of the evening described, she was in a state of shock prior to her son being shot. The experience of shock is a cornerstone of a post-traumatic stress disorder. She experienced a profound sense of helplessness and terror at her partner being brutally bashed, her daughter being threatened with sexual assault and her two year old child being threatened. Her helplessness was paralysing. By the time she witnessed the unintentional shooting of her son, the stressor that caused her post-traumatic stress disorder, had well and truly left its mark on her." 252On the question of causation, Dr Samuell provided the following opinion: "In my opinion, the predominant cause of Ms Karakizos' posttraumatic stress disorder were the terrifying events as described above. I expect that her son's shooting was also highly distressing for her and I accept that she was worried about his health. It was some time later that an ambulance driver told Ms Karakizos that her son could have died. She ruminates about these matters. In my opinion, the general events of that evening, prior to Justin's shooting, were the substantial cause of her post-traumatic stress disorder. She was already predisposed to a post-traumatic stress disorder if she did not indeed have it prior to that event due to her early childhood traumas. It is likely that Justin's shooting added incrementally to the development of her condition." 253Thus, the divergence of opinion between Dr Roberts and Dr Samuell is the extent to which the shooting of Justin added to the psychological reaction suffered by the plaintiff as a result of the night's events. In opining that Justin's shooting added "incrementally" to the development of her PTSD, Dr Samuell has not quantified the amount of that increment. It is sufficient in my view that it materially contributed to her condition and I find that she suffered post-traumatic stress disorder as a result of her witnessing the shooting of her son. 254Following the incident, the plaintiff and her daughter Kayla went to the Police station at approximately 2am and remained there until 6pm the next evening. She was extremely concerned about Justin's wellbeing, and was unable to see him at Westmead Hospital until later that night. She was clearly distressed when giving evidence about that, and also about what she observed of Justin when she saw him at the hospital. She remained concerned about him during the whole of his hospital stay. 255There was no real challenge to the evidence relied on by the plaintiff as to the effect of her son's shooting on her. It was clearly a highly distressing and traumatic event for her and materially contributed to her posttraumatic stress disorder. 256I accept the defendant's submission that Dr Roberts' had limited information when he assessed the plaintiff and that some of that information was incorrect. I also accept that the plaintiff had suffered earlier periods of depression which predisposed her to a depressive reaction when exposed to traumatic or distressing events. Whilst Dr Samuell was qualified with far more material as to her medical history, his opinion that her PTSD, suffered as a result of the shooting of her son, was incremental on the PTSD caused by the earlier event is not in any way quantified. I find that both the home invasion and the witnessing by her of her son's shooting were highly distressing events and on the balance of probabilities, each contributed equally to her chronic PTSD. For general damages I award her a sum of $85,000. 257I award interest on past general damages of $40,000 at 2%, the sum of $1,760. 258I also award the agreed sum for her treatment expenses of $647, rounded up to $650. 259Whilst the plaintiff has had little treatment, she will, on the balance of probabilities, require treatment in the future for her chronic condition. Any sum awarded needs to be discounted, having regard to the other causes of her PTSD. I therefore award the sum of $2,500 for future treatment. 260I therefore award damages as follows: General Damages $85,000.00 Interest on Past General Damages of $40,000 at 2% $1,760.00 Past Treatment Expenses $650.00 Future Treatment Expenses $2,500.00 Total $89,910.00 Assessment of Damages - Kayla McMaster 261Kayla McMaster suffered terribly as a result of the home invasion that took place at 4 Holmes Street, Colyton on 26 September 2011. She was physically and sexually assaulted, and had observed a knife being placed to her baby brother's throat. Following the ordeal she had attended a psychologist, Shirin Steev, on three occasions in November and December 2011 and had been diagnosed with a post-traumatic stress disorder as a result of the home invasion and assault. She was examined by Dr Roberts, psychiatrist, on 30 August 2012 and described to him that in regard to the incidents that occurred on 26 September 2011, her brother being shot was the worse incident at that time, but by the time of her examination her recollection had changed and she now considered the incident where a knife was placed to her baby brother's throat to be the worst incident. Dr Roberts was of the opinion that the shooting of her brother should be deemed to be the substantial cause of her PTSD. The other significant incident, namely the threat to harm her baby brother, is currently "the most significant of the incidents under consideration, but this is a later development and the substantial cause of the PTSD is the shooting of her brother". 262Dr Roberts recommended ongoing psychological counselling and pharmacotherapy, however, Ms McMaster has declined all further treatment. 263The plaintiff was examined on behalf of the defendant by Dr Samuell who described her in the following terms: "She presented as an authentic-sounding claimant. There was no sense that she was exaggerating or embellishing her difficulties. She did not present with significant current symptoms. The apprehension that she had is reality-based rather than the product of cognitive distortions." 264Dr Samuell expressed the following opinion: "As far as I'm aware, it is undisputed that Ms McMaster was a victim of an armed robbery. She was exposed to considerable violence. She witnessed her mother being bashed and both she and her infant brother were threatened with knives. In her own situation, the violence appeared to be rapidly sexualised, an element of the evening that was fortunately averted due to the presence of the police. "There is no doubt that she was terrified and traumatised by the actions of her armed assailants. They were menacing and demonstrated violent activity towards her mother. In my view, the earlier elements of the evening were enough to substantiate her claim of shock." 265Dr Samuell was of the opinion that she was not suffering any ongoing psychiatric disability and required no ongoing treatment. 266The plaintiff had attended school until year 11 in 2010 and thereafter worked in retail at a delicatessen in St Clair, named Foodworks. She had commenced work there part-time during school and then worked full-time after she left school during split-shifts. She was earning $400 net per week but did not return to her job at Foodworks after the home invasion and had not worked since that time. 267The plaintiff had commenced two courses of study in beauty therapy and make-up services. They were conducted at a college at Broadway. The beauty therapy course was to take another 14 months to complete. 268Following the home invasion she left home and went to live with a friend. She had a fear that the perpetrators would come back and harm her and members of her family. That was the reason why she was scared to go back to work. She had deferred her beauty therapy course and was now doing the make-up course several days per week. When asked whether she was determined to get ahead with her life, to get herself back on track and to get a full-time job, she answered "Yes, I want to move on with my life". 269Kayla McMaster presented as a most stoical person who was doing her best to put behind her what was a most violent and traumatic event. She had had little in the way of treatment by way of counselling and had suffered well-founded fears for her safety and that of her family whilst the perpetrators remained at large. Notwithstanding that, witnessing her brother's shooting by Constable Fanning was also a highly traumatic event for her. There is little dispute on the medical evidence relied on by the parties and I find that she did suffer a post-traumatic stress disorder following the incident, and that a major component of that related to the shooting of her brother Justin. I assess her general damages at $80,000. I award interest on past general damages of $40,000 at 2% for 2.2 years in the sum of $1,760. I also award damages for treatment expenses in the amount claimed of $623, rounded down to $620. 270The plaintiff has claimed damages for past wage loss, but nothing for future loss of earning capacity. She was earning $400 net per week at the time of the incident. I award her that amount over the whole period, one hundred and fifteen weeks, in the sum of $46,000. I award interest on half of that amount at 8% per annum in the sum of $4,050. 271I therefore assess damages as follows: General Damages $80,000.00 Interest on Past General Damages of $40,000 at 2% $1,760.00 Treatment Expenses $620.00 Past Loss of Wages $46,000.00 Interest on Past Loss of Wages $4,050.00 Total $132,430.00 Orders 272In the matter of Justin McMaster v State of New South Wales 12/4882, I make the following orders: (1)Verdict for the Plaintiff against the Defendant and Judgment in the sum of $512,450.00. (2)I make no order as to costs, but grant liberty to the parties to apply on 7 days notice in respect of any special costs orders. If there is no such application within 28 days, then an order will be made that the Defendant pay the Plaintiff's costs of the proceedings. 273In the matter of Georgia Karakizos v State of New South Wales 12/27695, I make the following orders: (1)Verdict for the Plaintiff against the Defendant and Judgment in the sum of $89,910.00. (2)I make no order as to costs, but grant liberty to the parties to apply on 7 days notice in respect of any special costs orders. If there is no such application within 28 days, then an order will be made that the Defendant pay the Plaintiff's costs of the proceedings. 274In the matter of Kayla McMaster v State of New South Wales 12/27725, I make the following orders: (1)Verdict for the Plaintiff against the Defendant and Judgment in the sum of $132,430.00. (2)I make no order as to costs, but grant liberty to the parties to apply on 7 days notice in respect of any special costs orders. If there is no such application within 28 days, then an order will be made that the Defendant pay the Plaintiff's costs of the proceedings. 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: 18 December 2013