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District Court 25 March 2022

Lechowski v Anstee

[2022] NSWDC 81

Other
TORTS INTENTIONAL TORTS NEGLIGENCE CAUSATION NO MEDICAL EVIDENCE

Citation: Lechowski v Anstee [2022] NSWDC 81
Court: District Court of New South Wales
Date: 25 March 2022
Judge: J Smith SC DCJ

Background

The plaintiff was a junior rugby union referee who attended a trial day at Dural Park in March 2014. She brought proceedings arising from events at that day and their alleged aftermath, claiming she was assaulted, falsely imprisoned, stalked, and intimidated by police officers over several years, and that rugby union officials and organisations breached their duty of care toward her.

The plaintiff's claims fell into three broad categories. First, she alleged a police officer assaulted and falsely imprisoned her at the rugby ground, then stalked and intimidated her over subsequent years. Second, she alleged a separate wrongful arrest by another officer in November 2016. Third, she alleged negligence by various rugby union defendants, claiming their failures caused her to suffer severe emotional distress and early onset menopause.

The State of New South Wales accepted vicarious liability for any torts proved to have been committed by the police officers, but disputed the plaintiff's factual account. The rugby union defendants denied both the negligence allegations and the factual foundation for any claim of vicarious liability.

  • Whether the plaintiff was assaulted, falsely imprisoned, stalked, and intimidated by a police officer as alleged
  • Whether the plaintiff was wrongfully arrested by a second officer in November 2016
  • Whether the rugby union defendants were negligent, including whether the pleading adequately identified any breach of duty under section 5B of the Civil Liability Act 2002 (NSW)
  • Whether the plaintiff suffered actionable harm, particularly early onset menopause, caused by any defendant's conduct
  • Whether emotional distress alone constitutes actionable damage in negligence
  • Whether any award of exemplary, aggravated, or compensatory damages was warranted

Decision

The court dismissed all claims against all defendants. The most fundamental difficulty was the plaintiff's credibility. Her version of events was found to be implausible, her evidence as a witness was assessed as unsatisfactory, and her account was materially inconsistent with the evidence of other witnesses. The court was not persuaded on the balance of probabilities that she had been assaulted, arrested, detained, abused, stalked, or intimidated as alleged.

The claims against the rugby union defendants failed for two independent reasons. First, the pleading was deficient: no material facts supporting breach of duty under section 5B(1) of the Civil Liability Act were pleaded against several defendants, and assertions of vicarious liability were made without any supporting factual foundation. Second, and decisively, the plaintiff adduced no medical or other evidence that she suffered early onset menopause or any recognised psychiatric illness. Emotional distress, even if accepted, does not constitute actionable damage in negligence in the absence of a recognised psychiatric condition. Drawing on Tame v New South Wales (2002) 211 CLR 317 and Alcan Gove Pty Ltd v Zabic (2015) 257 CLR 1, the court confirmed that mere distress, fear, or anxiety is generally not sufficient to found a negligence claim for personal injury.

The claim in battery against the State was treated separately, because intentional torts require no proof of actual injury or damage. On the facts the court did find, there was at least an arguable battery: a slight and momentary pinching of the plaintiff's sleeve. The court assessed compensatory damages for that conduct at $500. However, exemplary damages were not awarded, as the court was not satisfied that conscious wrongdoing in contumelious disregard for the plaintiff's rights had been established. Because the plaintiff's claims were otherwise wholly rejected, she was ordered to pay the defendants' costs.

Orders Made

  • Judgment and verdict entered for each of the defendants
  • The plaintiff is to pay the defendants' costs
  • Any party seeking a variation of the costs order must file written submissions (no more than five pages) and any supporting affidavit within 14 days of the orders
  • Any party opposing such a variation must file submissions and any affidavit within 28 days of the orders
  • Any application for variation of the costs order will be determined on the papers

Key Takeaways

  • Emotional distress, fear, or anxiety does not constitute actionable damage in negligence unless accompanied by a recognised psychiatric illness, consistent with the High Court's approach in Tame v New South Wales (2002) 211 CLR 317.
  • A negligence claim based on personal injury requires the plaintiff to adduce evidence of actual harm and to establish causation under sections 5D and 5E of the Civil Liability Act 2002 (NSW); bare assertions in pleadings, without supporting evidence, will not suffice.
  • The District Court treated battery as distinct from negligence-based claims: intentional torts require no proof of actual damage, and the Civil Liability Act's limitations on damages (including the exclusion of exemplary damages) do not apply, as confirmed by section 3B(1)(a).
  • Where a plaintiff's factual account is implausible, internally inconsistent, and at odds with the evidence of other witnesses, the court will not accept that account merely because some defendants acknowledged they would be liable if the account were true.
  • Vicarious liability cannot be established by bare assertion alone; a pleading must set out the material facts that support the relationship and conduct said to give rise to that liability.

Legislation and Cases Referenced

Legislation
- Civil Liability Act 2002 (NSW), ss 3B, 5B, 5D, 5E
- Crimes Act 1900 (NSW), s 545B
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Evidence Act 1995 (NSW), s 140

Cases
- Alcan Gove Pty Ltd v Zabic (2015) 257 CLR 1
- Armagas Ltd v Mundogas SA (The Ocean Frost) [1985] 1 Lloyd's Rep 1
- Barton v Armstrong [1969] 2 NSWLR 451
- Bird v Jones (1845) 7 QB 742
- Blacket v Barnett [2017] NSWSC 1032
- Briginshaw v Briginshaw (1938) 60 CLR 336
- Brighten v Traino [2019] NSWCA 168
- Croucher v Cachia [2016] NSWCA 132
- McDonald v Coles Myer Limited (1995) Aust Torts Reports 81-361
- Rixon v Star City Pty Ltd (2001) 53 NSWLR 98
- Sangha v Baxter [2009] NSWCA 78
- State of New South Wales v McMaster [2015] NSWCA 228
- Tame v New South Wales (2002) 211 CLR 317
- Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118
- Wallace v Kam (2013) 250 CLR 375