Citation: Houda v The State of New South Wales [2005] NSWSC 1053
Court: Supreme Court of New South Wales, Common Law Division
Date: 25 October 2005
Judge(s): Cooper AJ
Background
The plaintiff was a practising solicitor who attended Burwood Local Court on the morning of 25 August 2000 to await two clients. While standing in the vestibule outside the courtrooms, he became involved in an interaction with a uniformed police constable that quickly escalated. The plaintiff's account was that the constable approached him without provocation, swore at him in front of approximately fifty bystanders, and pushed him twice in the chest. The constable's account, adopted by the defendant, was that the plaintiff had behaved aggressively and struck the constable.
The plaintiff was arrested and charged with assaulting a police officer in the execution of his duty under section 60 of the Crimes Act 1900. That charge was withdrawn and dismissed in the Burwood Local Court in February 2001.
The plaintiff then sued the State of New South Wales (the named police officers having been removed as defendants by consent, with the State accepting vicarious liability under the Law Reform (Vicarious Liability) Act 1983) for malicious prosecution, false imprisonment, wrongful arrest, and assault. He sought compensatory, aggravated, and exemplary damages.
Legal Issues
- Whether the constable's version or the plaintiff's version of events was to be accepted on the facts
- Whether the elements of malicious prosecution were established, including absence of reasonable and probable cause and the presence of malice
- Whether the plaintiff's arrest and subsequent detention constituted wrongful arrest and false imprisonment
- Whether the assault claim was made out
- Whether the Civil Liability Act 2002 (and specifically the exclusion in section 3B(1)(a) for intentional acts done with intent to cause injury) applied to limit or exclude damages
- Whether any limitation period issue arose under the Limitation Act 1969
- Whether aggravated and exemplary damages were warranted, and if so, in what amounts
Decision
Cooper AJ accepted the plaintiff's account of events. The court found that the constable had initiated the confrontation, used abusive language in a public setting, and physically pushed the plaintiff on two occasions without lawful justification. The plaintiff had not contributed to what occurred and had acted defensively rather than aggressively. The defendant's version was rejected.
On the causes of action, the court found each was established. The prosecution had been brought without reasonable and probable cause and was actuated by malice. The arrest was unlawful, the subsequent imprisonment false, and the physical contact constituted an assault.
On the question of aggravated damages, the court found the manner of the constable's conduct, combined with the defendant's decision to persist throughout the litigation in allegations of misconduct against the plaintiff, warranted an additional award. The court assessed those damages at $20,000. The conduct was described as entirely unjustified.
Exemplary damages were also awarded. The court applied the principle, drawing on XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd and Cassell and Co Ltd v Broome, that such damages are intended to punish conscious and contumelious disregard for a plaintiff's rights and to deter similar conduct. The constable's behaviour was characterised as high-handed conduct falling squarely within that standard. The court assessed exemplary damages at $25,000. Submissions on interest and costs were reserved.
Orders Made
- Judgment for the plaintiff against the State of New South Wales on each cause of action pleaded
- Compensatory damages: $100,000
- Aggravated damages: $20,000
- Exemplary damages: $25,000
- Total damages: $145,000
- Submissions invited on interest and costs
Key Takeaways
- The Supreme Court found that a police officer's unprovoked physical and verbal conduct toward a solicitor in a courthouse vestibule established the torts of assault, wrongful arrest, false imprisonment, and malicious prosecution.
- Aggravated damages are available where a defendant's conduct during litigation, including the unjustified pursuit of allegations of misconduct against the plaintiff, compounds the injury to the plaintiff's dignity and feelings.
- Under the principle confirmed in Cassell and Co v Broome and XL Petroleum, exemplary damages serve a punitive and deterrent function; no necessary proportionality exists between exemplary and compensatory awards.
- The State's vicarious liability for the constable's conduct arose by operation of the Law Reform (Vicarious Liability) Act 1983, even though the individual officers had been removed as defendants by consent.
- Malicious prosecution requires proof of absence of reasonable and probable cause and the presence of malice; on the facts here, both elements were satisfied by the court's rejection of the defendant's account and its findings about the constable's conduct.
Legislation and Cases Referenced
Legislation:
- Civil Liability Act 2002 (NSW), s 3B(1)(a)
- Crimes Act 1900 (NSW), s 60
- Law Reform (Vicarious Liability) Act 1983 (NSW)
- Limitation Act 1969 (NSW)
Cases:
- Briginshaw v Briginshaw (1938) 60 CLR 366
- Rejfek v McElroy (1965) 112 CLR 517
- XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 471
- Cassell and Co Ltd v Broome & Anor [1972] AC 1027
- Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 115
- Little v Law Institute of Victoria [1990] VR 247
- Savile v Roberts (1698) 1 Ld Raym 374
- Amin v Bannerjee [1947] AC 322
- Praed v Graham (1889) 24 QBD 53
- McDonald v Coles Myer Limited (1995) Australian Torts Reports 81-361
- McCracken v Melbourne Storm Rugby League Football Club [2005] NSWSC 107