Citation: Knight v State of New South Wales [2001] NSWSC 1096
Court: Supreme Court of New South Wales, Common Law Division
Date: 30 November 2001
Judge(s): Master Malpass
Background
The plaintiff sustained serious personal injuries, including brain damage, in the early hours of 1 January 1990 after being pursued by police in Taree. While fleeing, he vaulted over a fence. What happened immediately afterwards was the central dispute in the case: the plaintiff alleged he was assaulted by a police constable; the defendant maintained he was injured in the fall itself.
The plaintiff sued the State of New South Wales as vicariously liable for the actions of the two pursuing officers. The case was complicated by the plaintiff's significant memory impairment resulting from his injuries, and by the fact that he had undergone a hypnosis session in June 1991, which he claimed had enhanced his recollection of events.
After a hearing spanning nearly three weeks, the court was asked to determine liability first, with damages to be assessed separately if the plaintiff succeeded.
Legal Issues
- Whether the plaintiff's injuries were caused by an assault by a police officer, a fall after vaulting the fence, or some combination of both
- Whether the State was vicariously liable for any assault committed by the constable, under the Law Reform (Vicarious Liability) Act 1983
- Whether the defendant was negligent through its officers continuing the pursuit in circumstances where injury from a fall was foreseeable
- Whether evidence of the plaintiff's memory, enhanced through hypnosis, was admissible in civil proceedings
- Whether the plaintiff's proposed amendments to his statement of claim (including claims against a second officer, an alternative negligence claim, and aggravated and exemplary damages) should be permitted
Decision
Assault or fall? Master Malpass found, on the balance of probabilities, that the plaintiff had been assaulted by the constable. This was an extremely difficult factual determination: the incident occurred in an unlit area over eleven years before trial, there were only two potential witnesses to the event itself, and one of them had ongoing memory problems. The finding was reached primarily through evidence other than the plaintiff's own account of the incident, including witness evidence and material that was not in dispute.
Admissibility of hypnotically enhanced memory. The defendant sought to exclude the plaintiff's post-hypnosis evidence, relying on authorities developed in the criminal context, including R v Tillott (1995) 38 NSWLR 1. Master Malpass received the evidence provisionally and reviewed its admissibility in the judgment. He concluded that the post-hypnosis evidence should not be admitted, given the court's power under s 135 of the Evidence Act 1995 to refuse evidence whose probative value is substantially outweighed by the danger of unfair prejudice or misleading the court. However, the finding of assault had already been made without reliance on that evidence. The plaintiff's pre-hypnosis recollections were treated with caution but were not entirely disregarded, as certain aspects were consistent with other accepted evidence.
Vicarious liability. The common law would not have imposed liability on the State for the officer's assault in these circumstances. However, s 8 of the Law Reform (Vicarious Liability) Act 1983 applied to extend liability to the State, consistent with the approach taken in Prior v State of New South Wales. The court was satisfied on the balance of probabilities, as required by s 140 of the Evidence Act 1995, that the defendant had breached its duty of care and that the breach caused damage to the plaintiff.
Amendments to the statement of claim. Three proposed amendments were considered. The first, extending the assault allegation to the senior constable, was refused as futile: there was no evidence implicating that officer in the assault. The second, adding an alternative negligence claim based on continuation of the pursuit, was also unnecessary given the findings already made. The third, adding a claim for aggravated and exemplary damages, was permitted to proceed on the basis that it was not shown to be futile.
Orders Made
- Judgment entered for the plaintiff, with damages to be assessed
- Leave granted to amend the statement of claim to add a claim for aggravated and exemplary damages
- Leave to amend refused in relation to the assault allegation against the second officer and the alternative negligence claim
Key Takeaways
- Master Malpass found that a police officer's assault, rather than a fall, caused the plaintiff's brain damage, despite the incident occurring over a decade earlier in an unlit area with limited direct evidence.
- Under s 8 of the Law Reform (Vicarious Liability) Act 1983, the State of New South Wales was held vicariously liable for the constable's assault, even though common law vicarious liability would not have extended to such conduct.
- Post-hypnosis evidence of a plaintiff's enhanced memory was not admitted in this civil proceeding, with the court invoking s 135 of the Evidence Act 1995; the criminal line of authority from R v Tillott was treated as relevant context.
- A finding of liability can be sustained on other evidence even where the plaintiff's own recollection is compromised, provided the court identifies independent material of sufficient weight.
- Proposed amendments to pleadings that add no practical utility given existing findings, or that lack any evidentiary foundation, will be refused as futile, even where delay and prejudice are not the primary concerns.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 135, 140, 140(2)
- Law Reform (Vicarious Liability) Act 1983 (NSW), s 8
- Police Service Act 1990 (NSW), s 170
Cases:
- Prior v State of New South Wales BC 9805599
- R v Tillott (1995) 38 NSWLR 1