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District Court 3 August 2018

Gibb-Smith v State of New South Wales

[2018] NSWDC 204

Assault & violencePublic order & justice offences
TORTS POLICE TORTS CLAIMS COMPENSATORY AND EXEMPLARY DAMAGES ARREST FOR BREACH OF THE PEACE WHAT CONSTITUTES BREACH OF THE PEACE

Citation: Gibb-Smith v State of New South Wales [2018] NSWDC 204
Court: District Court of New South Wales
Date: 3 August 2018
Judge: Neilson DCJ

Background

The plaintiff, a slightly built 17-year-old at the time, attended a friend's 18th birthday party in Glenbrook on the evening of 14 April 2014. Police were called to the address following a noise complaint. In the course of responding to that complaint, three constables became involved in a series of interactions with the plaintiff that escalated significantly.

The events unfolded at the party location in Glenbrook and continued at Springwood Police Station in the early hours of 15 April 2014. The plaintiff alleged that the officers committed assault and battery, falsely imprisoned him, and maliciously prosecuted him by preferring charges that had no proper foundation.

The State of New South Wales was the defendant, sued vicariously for the conduct of the officers under the Law Reform (Vicarious Liability) Act 1983 and the Crown Proceedings Act 1988. The plaintiff sought general damages only, expressly not claiming personal injury damages, though he did sustain a chipped front tooth requiring dental treatment.

  • Whether the officers committed assault and battery on the plaintiff during the events in question
  • Whether the plaintiff was falsely imprisoned, including whether any arrest or detention was lawfully justified (for example, on the basis of a breach of the peace)
  • Whether the subsequent criminal charges against the plaintiff amounted to malicious prosecution, including whether the prosecuting officer had reasonable and probable cause to bring the charges and whether he acted with malice
  • The appropriate measure of compensatory and exemplary damages for each established tort
  • Whether the Civil Liability Act 2002 limitations on exemplary damages applied, given the plaintiff's decision not to claim personal injury damages

Decision

The District Court found in favour of the plaintiff on all three causes of action. Neilson DCJ accepted that the officers had applied unlawful physical force to the plaintiff and had detained him without lawful justification, satisfying the elements of assault, battery, and false imprisonment. The court was not persuaded that the circumstances amounted to a genuine breach of the peace capable of grounding a lawful arrest.

On malicious prosecution, the court found that the charges brought against the plaintiff lacked reasonable and probable cause. Particularly telling was the conduct of the prosecuting officer, who sent an email to colleagues when the plaintiff entered not guilty pleas, describing the plaintiff as a "winner" (apparently meaning he was pleased the matter was contested). Neilson DCJ found this reflected an improper motive and persistence with charges that were bound to fail. The court drew on the principles in A v New South Wales [2007] HCA 10 in assessing malice and absence of reasonable and probable cause.

Compensatory damages were assessed separately for each tort: $15,000 for assault and battery, $30,000 for false imprisonment, and $30,000 for malicious prosecution. Exemplary damages (intended to punish and deter) were awarded in addition: $10,000 for assault and battery and $15,000 for malicious prosecution. The court noted that the plaintiff's deliberate choice to plead general damages rather than personal injury damages meant the Civil Liability Act 2002 restrictions on exemplary damages did not apply. Interest was calculated on the compensatory and exemplary awards, bringing the total to $124,159.

Regarding the exemplary award for malicious prosecution, Neilson DCJ expressed clear disapproval of persisting with prosecution of charges that were bound to fail, observing that such conduct burdens the parties and the court system, and must be discouraged.

Orders Made

  • Verdict and judgment for the plaintiff against the defendant in the sum of $124,159.
  • The defendant to pay the plaintiff's costs (subject to any application made at the time of delivery of reasons).

Key Takeaways

  • The District Court confirmed that the State of New South Wales bears vicarious liability for the tortious conduct of police officers under the Law Reform (Vicarious Liability) Act 1983, and that a plaintiff may sue the Crown directly under the Crown Proceedings Act 1988.
  • A plaintiff who deliberately confines a claim to general damages (rather than personal injury damages) may preserve access to exemplary and aggravated compensatory damages that would otherwise be excluded by section 21 of the Civil Liability Act 2002.
  • Malicious prosecution requires proof of both absence of reasonable and probable cause and malice. Here, the court found both elements established, in part through the prosecuting officer's own communications, which revealed an improper attitude toward the charges he was pursuing.
  • Persisting with criminal charges that are "bound to fail" after a not guilty plea was entered was identified as conduct warranting exemplary damages, with the court noting the broader burden such conduct places on litigants and the courts.
  • Where separate torts arise from a connected series of events involving police, courts will assess compensatory and exemplary damages individually for each tort rather than applying a single global figure.

Legislation and Cases Referenced

Legislation:
- Law Reform (Vicarious Liability) Act 1983 (NSW)
- Crown Proceedings Act 1988 (NSW)
- Civil Liability Act 2002 (NSW)
- Civil Procedure Act 2005 (NSW)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
- Summary Offences Act 1988 (NSW)
- Legal Profession Act 2004 (NSW) / Legal Profession Uniform Law Application Act 2014 (NSW)
- Crimes Act 1900 (NSW)
- Young Offenders Act 1997 (NSW)

Key Cases:
- A v New South Wales [2007] HCA 10; (2007) 230 CLR 500 (malicious prosecution: malice and reasonable and probable cause)
- New South Wales v Ibbett [2006] HCA 57; (2006) 229 CLR 638 (exemplary damages against the Crown for police torts)
- Kuru v State of NSW [2008] HCA 26 (police powers and false imprisonment)
- Lamb v Cotogno (1987) 164 CLR 1 (exemplary damages for intentional torts)
- Briginshaw v Briginshaw (1938) 60 CLR 336 (standard of proof for serious allegations)
- Johnson v Phillips [1975] 3 All ER 682 (breach of the peace)
- Percy v DPP [1995] 3 All ER 124 (breach of the peace)
- Jones v Dunkel (1959) 101 CLR 298 (inference from failure to call evidence)