State of New South Wales v McMaster; State of New South Wales v Karakizos; State of New South Wales v McMaster [2015] NSWCA 228

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v McMaster; State of New South Wales v Karakizos; State of New South Wales v McMaster [2015] NSWCA 228 Hearing dates: 18 and 19 September 2014 Decision date: 10 August 2015 Before: Beazley P at [1]; McColl JA at [348]; Meagher JA at [359] Decision: 1. Appeal allowed in each matter;

2. Set aside the orders of the Court below in each matter;

3. Refuse leave to rely on the notices of contention filed by Georgia Karakizos and Kayla McMaster;

4. Respondents to pay the State's costs in the Court below and to have a certificate under the Suitors Fund Act 1951 (NSW) if otherwise entitled;

5. Respondents to pay the State's costs on appeal in each matter. Catchwords: APPEAL – where plaintiff shot by police officer responding to home invasion – challenges to factual findings

APPEAL – leave to raise claim not pleaded below – where claim raises additional factual and legal questions

TORTS – trespass to the person – battery – whether liability of police officer precluded under common law by reason of honest belief based on reasonable grounds that force was necessary –

TORTS – defences – self-defence at common law – correct test – role of proportionality

TORTS – defences – self-defence pursuant to Civil Liability Act 2002 (NSW), s 52 – meaning of "unlawful"

TORTS – defences – necessity – correct test

TORTS – whether separate cause of action for damages for nervous shock pursuant to Johnson v The Commonwealth (1927) 27 SR (NSW) 133