State of New South Wales v McMaster; State of New South Wales v Karakizos; State of New South Wales v McMaster

BEAZLEY P:

On 26 September 2011, at approximately 12:35 am, Justin McMaster was shot in the abdomen by a New South Wales police officer, Constable John Fanning. Present at the scene of the shooting were Justin McMaster’s mother, Georgia Karakizos and his sister, Kayla McMaster. For the purposes of these reasons, I will refer to each of these persons as Justin, Georgia and Kayla respectively. Another police officer, Constable Natasha Kleinman, was also present.

The shooting occurred in circumstances where the police had been called to attend a home invasion involving a brutal physical assault on Georgia and a serious assault on Kayla, who had a knife held to her throat and was sexually assaulted. Georgia’s younger son, an infant, also had a knife held to his throat. The intruders, two at least of whom were known to Justin, were demanding money.

Justin and his de facto partner, Jasmin Potts, Georgia and Kayla lived at 4 Holmes Street. Jasmin, who was inside a granny flat attached to the residence at the time of the invasion, telephoned 000 and reported the invasion. Constables Fanning and Kleinman, who were on duty, responded to a police radio message in respect of the incident. The information they received included that the intruders had a knife.

When the police officers arrived in Holmes Street, they parked between houses numbered 6 and 8. Upon observing the presence of the police van, Kayla ran towards it. Georgia, who had been hiding in the house next door, 6 Holmes Street, ran down the street almost immediately after Kayla. The two police officers were speaking to Georgia and Kayla outside 6 Holmes Street, when Justin emerged from number 4 and ran down the road, carrying a curtain rod, which he had grabbed from inside the granny flat. The curtain rod was made of aluminium and was 1.5 m long and 1-2 inches in diameter.

Constable Fanning shot Justin as Justin approached the group. Constable Fanning estimated that the time between their arrival on the scene and the moment Justin was shot was no more than two minutes. This was verified by the transcript of the police radio call.

The trial judge, at [5], described Georgia and Kayla as being “visibly upset and somewhat hysterical, and were having difficulty communicating to the officers what exactly had occurred”. His Honour, at [6], described what happened at the scene in these terms:

Justin, Georgia and Kayla each brought proceedings against the State. Pursuant to the Civil Liability Act 2002 (NSW), s 3B, the provisions of the Act, save for the provisions relating to self-defence contained in Pt 7, had no application to the claim: see Dean v Phung [2012] NSWCA 223; State of New South Wales v Ibbett [2005] NSWCA 445; 65 NSWLR 168.

Justin alleged that the action of Constable Fanning in shooting him constituted an assault and battery and trespass to the person. Justin also brought a case in negligence, but that case was rejected by the trial judge and is not pursued on the appeal.

Georgia and Kayla brought proceedings against the State under the Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 4, claiming they had suffered severe nervous shock and depressive illness and associated sequelae as a consequence of being present when Justin was shot. Section 4 was repealed in 2002, but Georgia and Kayla have the benefit of the provision pursuant to the provisions of the Civil Liability Act, Sch 1, cl 11.

The trial judge found the State liable to Justin on the basis that Constable Fanning had committed a deliberate assault and battery and trespass to his person. His Honour awarded damages to Justin the sum of $512,450. In finding for Justin, his Honour rejected the State’s defence of self-defence and its argument that the State was entitled to a common law immunity for the actions of the police officers whilst engaged in the police operation and in activities for the suppression of crime.

Georgia and Kayla also succeeded in their claims. His Honour awarded damages to Georgia damages in the sum of $89,910 and Kayla in the sum of $132,430. As the award in favour of Georgia was less than $100,000, she requires leave to appeal. Leave should be granted. Her case involves exactly the same factual matters as the cases of Justin and Kayla and the legal issues in her case are the same as in Kayla’s. The matter is also one of importance in the administration of justice. All three cases raise questions as to the circumstances in which the State may be liable for the actions of a police officer in the course of responding to a report of a serious crime being committed. For the reasons that follow, I would allow the State’s appeal in each matter, with costs.

In reaching his conclusion that Justin had proved his case in assault, battery and trespass, the trial judge held, at [177], that certain specific facts had been established. It is convenient to set out those factual findings at this early stage, as they are not only a statement of the essential factual background, but the State’s appeal is directed in a significant way to establishing error in respect of three of those findings. The findings were as follows:

The State’s amended notice of appeal by which it appeals against his Honour’s judgment in favour of Justin raises the following issues:

The appeal by the State against his Honour’s judgment in favour of Georgia and Kayla raises the following issues:

Georgia and Kayla also seek leave to file a notice of contention in which they claim that, if they are not entitled to damages pursuant to s 4 of the Law Reform (Miscellaneous Provisions) Act, they have a separate cause of action at common law which was proven on the facts established at trial.

Before dealing with each of the challenges to his Honour’s judgment, it is important to observe at the outset that, despite differences in the recollections of the various witnesses, the trial judge made no adverse credit finding against any of them. Rather, his Honour, at [176], considered that each of the witnesses was doing his or her best to recall the event, which, as he noted, was highly traumatic. His Honour made specific mention of Justin, whom he considered to be “particularly impressive” and who made “appropriate concessions”, although he stated that Justin had no recollection of the critical events. Justin’s evidence was that he remembered the events of the evening up to the point at which he was in the front yard of 4 Holmes Street, immediately prior to running out on to the roadway and being shot.

The State submitted that in these circumstances, it was important to have regard to the contemporaneous records in order to resolve the inconsistencies in the evidence of the witnesses which were critical to the outcome of the case. In particular, the State contended that the ERISPs of the two police officers, a ‘walk through’ of the scene by Constable Fanning recorded on video and an interview conducted with Justin at the hospital provided the most reliable evidence of what occurred at the time that Justin was shot. The State submitted that these contemporaneous accounts were of particular significance given that Georgia and Kayla were in an upset and “hysterical” state.

A question that should also be addressed at the outset and upon which the parties advanced different arguments was the test to be applied in determining the challenge to the trial judge’s factual findings. In my opinion, the test to be applied in this case, given the absence of adverse credit findings, is as stated by Gleeson CJ, Gummow and Kirby JJ in Fox v Percy [2003] HCA 22; 214 CLR 118 at [27]:

The trial judge held that having regard to the principles stated in Australian Capital Territory v Crowley [2012] ACTCA 52; 273 FLR 370 the State owed no duty of care to the respondents. That finding is not challenged on appeal.

However, his Honour held at [180] that the State was liable to Justin as Constable Fanning’s action in discharging his firearm and wounding Justin constituted a battery.

The State did not challenge that the nature of the conduct involved in the shooting was a battery. However, it contended that the principles in Crowley applied to protect from liability the intentional actions of police officers performed in the course of carrying out their policing duties.

The trial judge, at [195], rejected the State’s argument that an operational immunity applied to intentional torts: see Hill v Chief Constable of West Yorkshire [1989] AC 53, cited in Crowley. See also State of New South Wales v Spearpoint [2009] NSWCA 233 at [9] where Ipp JA observed that there was “no authoritative decision in Australia [that had held] that there was an absolute immunity afforded to police for their conduct in the course of their duties”.

In Crowley, the respondent brought proceedings in negligence against, relevantly, an officer of the Australian Federal Police and the Commonwealth of Australia, in relation to an incident in which the officer shot the respondent in the spine, leaving him permanently quadriplegic. The Australian Federal Police officer had responded to a number of complaints about the respondent, who had been acting in an erratic and aggressive manner while wielding a sword and a kendo stick. At the time of the incident, the respondent had been suffering from an acute mental health episode.

The trial judge’s finding of liability was overturned on appeal. The ACT Court of Appeal (Lander, Besanko and Katzmann JJ) held, relevantly, that the Australian Federal Police officer owed no duty of care to the respondent, primarily because such a duty would conflict with the duties of the police to the public at large.

The Court held, at [271], by reference to a number of English cases including the leading case of Hill v Chief Constable of West Yorkshire at 59, that police officers owe overlapping statutory and common law duties to enforce the criminal law, and that such duties:

It followed that policy considerations militated against the imposition of tortious liability for actions done in the course of such duties. At [274], the Court held that:

In addition, the Court held that a common law duty imposing tortious liability in the circumstances of the case would be inconsistent with the officer’s statutory duties. As it explained, at [287]:

In the present case, the State contended that it would be incongruous if the position with respect to actions brought in negligence and actions brought in battery were different, and that the result of that approach would be that the policy considerations in Crowley could be sidestepped. It contended that the reasoning in Crowley applied, by analogy, to the question of whether police officers should be liable to individual members of the public for conduct that would, were it not in the course of their duties, constitute battery. As this was put in oral argument:

The State identified two aspects of coherence which it contended were also relevant to the question of liability for battery. First, it submitted that it is incoherent for a common law duty to be imposed on a person that is incompatible or inconsistent with an existing statutory or common law duty, power or function. The State contended that the imposition of liability for battery, in circumstances in which the discharge of the officer’s public duties required the commission of the battery, would be incoherent with the duties of a police officer, to which further reference is made below.

Secondly, the State submitted that it is incoherent for a common law duty to be imposed on a person which would tend in practice to undermine or discourage the performance of a statutory or common law duty, power or function which exists for the benefit and protection of the general public or a class of it. The State contended, therefore, that as a matter of legal policy the law was or ought to be that:

This submission rested on a formulation of the duties, powers and functions of police officers which, in the State’s contention, in summary, are as follows:

Justin contended that there was no basis in the State’s assertion of incongruity if he could sue in battery but not in negligence, noting that such findings had been made in a number of cases. He cited State of NSW v Riley [2003] NSWCA 208; 57 NSWLR 496 and State of NSW v Koumdjiev [2005] NSWCA 247; 63 NSWLR 352, both cases concerning battery during an arrest; State of NSW v Ibbett [2006] HCA 57; 81 ALJR 427, a case concerning assault and trespass to land by a police officer; and State of NSW v Delly [2007] NSWCA 303; 70 NSWLR 125, a case concerning unlawful arrest. However, it should be noted that in none of these cases was the question of police protection from liability, in sense raised by ground 1 of the notice of appeal, considered.

Justin submitted that, accepting the principles stated in Crowley and the cases on police powers, the State should, on the facts in this case, nonetheless be found liable. He submitted that:

Justin contended that “the unassailable findings of fact reveal no such reasonable belief was held by Constable Fanning”. He noted the distinctive facts of Crowley:

In my opinion, this Court should not accept that the actions of Constable Fanning were protected on the basis of, or by analogy to, the principles stated in Crowley. There are several reasons for this. First, Crowley was a case where the matter in issue was whether the police officers, who had responded to reports of erratic and potentially dangerous behaviour by the plaintiff, owed him a duty of care or whether their actions were protected by a common law operational immunity. The ACT Court of Appeal upheld the claim of immunity. In its detailed review of the case law, it observed, however, at [302], that it was difficult to “try and harmonise the authorities by reference to a single test”. It should be noted that the principle for which the State contended was initially framed in the alternative, as an immunity, but the language used in the amended notice of appeal was that of “lawful excuse”.

Secondly, there are observations in the authorities in New South Wales, to which the ACT Court of Appeal referred, that a duty of care is not necessarily ousted by the existence of such an immunity: see, for example, Tyszyk per Campbell JA at [128]. See also State of New South Wales v Spearpoint, to which reference has been made above.

Thirdly, the legislature, by the enactment of s 230, has spoken as to the circumstances in which a police officer’s actions in exercising a function under LEPRA, or under any other Act or law, are lawful.

I would dismiss ground 1 of the State’s notice of appeal relating to Justin.

The State contended that, on the facts as they ought to have been found, the evidence established that Constable Fanning believed, on reasonable grounds, that it was necessary to do what he did in defence of Constable Kleinman such that he was acting in self-defence: see Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26; 162 CLR 645. The determination of this issue requires, in the first instance, the resolution of the State’s challenges to the factual findings.

In support of its challenge to the factual findings in paras (11), (13) and (18) the State relied, in particular, upon the transcript of the police radio recording responding to the 000 call, the ERISPs of each of the police constables, the walk through video and Justin’s statement to police at the hospital. The evidence at trial of each of the constables and of Justin, Georgia and Kayla and Jasmin also requires consideration.

Once those factual challenges have been resolved the following legal questions arise:

The police radio recording commenced from the time of the call being made for an urgent response to the 000 call (the urgency being signified by a double beep) and concluded after other police had arrived at the scene and conducted a search of the area, including the premises, and had found a knife. The total time of the recording was 1 hour and 55 minutes. As is revealed from the transcript of the recording, the information that the police had on the basis of the 000 call was that “somebody [was] holding a knife against a female’s throat” and that there were four persons involved. One “male was kicking the female in the head”. The transcript also revealed that the time between the arrival of Constable Fanning and Constable Kleinman at the scene and the shooting was less than two minutes.

The transcript also records that one of the two police officers at the scene reported back to the radio base as follows:

The reference to the female being armed with a knife is a reference to Justin’s partner, Jasmin, who ran down the street after Justin holding a knife, as is discussed below. It is likely that this report was made by Constable Kleinman, as immediately after the shooting Constable Fanning was attending to Justin.

Constable Fanning was interviewed by Detective Inspector Guyatt on Tuesday 27 September, commencing just after midday. It will be recalled that the shooting occurred at about 12.35 am on Monday 26 September, about 36 hours prior to this interview.

In the interview, Constable Fanning said that he was informed by Constable Kleinman that there was an urgent call out and that, as they were walking out of the police station to the police car, she reported to him that, “[a]pparently there’s two males holding a female”. Constable Fanning said that she “didn’t know too much more than that at that stage. So I was prepared for that”. He said that as they were driving to the scene of the accident, further information came over the police radio that there were “two males holding down a female, possibly a knife”. Constable Fanning said that he knew that it was a serious job because it was “a double beeper”, that he believed that it was a 000 call, and from the fact that there were two males and one female, which was “pretty rough”.

Constable Fanning’s police driving qualification (code blue) did not permit him to drive above the speed limit, operate the police lights or sound the siren.

Constable Fanning explained what he saw at the scene in the following terms. He said that they had driven a little way down the street when Constable Kleinman said “there’s a woman running, there’s a woman running”. He said that he saw a woman coming towards them and they pulled the police vehicle over. He said that the woman ran to his (the driver’s side) window, which was up, and that she was “hysterical ... she was waving her arms and she was screaming”.

Constable Fanning said that he got out of the vehicle and the woman said “there’s a man … he had a knife, he had a knife and he was choking me”. Constable Fanning said he asked “Where is he or where are they”, as he believed that there were two men involved, and that they told her to calm down.

Detective Inspector Guyatt asked what happened after they had “moved forward” with the woman, to which Constable Fanning replied:

He said that the two women were speaking to each other in a “heightened” manner and that they were “obviously scared … they looked scared”. He said that the woman who had run to their vehicle had looked “petrified” and was “hysterical”. He said that the two women stood behind him and Constable Kleinman.

Constable Fanning then explained that:

He described the male person as wearing a black t-shirt and grey tracksuit pants. Constable Fanning said that the person:

Constable Fanning continued his description of what occurred as follows:

Constable Fanning could not recall whether it was a car or a tree that had obstructed his view, but estimated that at that point the male person was “maybe” 15 or 20 m away from him. Constable Fanning then saw that the person “had moved out into the middle of the roadway and he was still screaming”. At that point, Constable Fanning said:

Constable Fanning then described the position of himself, Constable Kleinman and the person running towards them. He said he was close to the gutter and the person was in the middle of the road. He estimated the person’s distance from Constable Kleinman as:

Constable Fanning said that the person “still had the rod in his hand and he was still waving it”. Constable Fanning said that Constable Kleinman was in line with him and that the person’s position in relation to them was “like the point of a triangle”. He said that the two women were between him and Constable Kleinman a bit behind them.

Constable Fanning said that he heard a female voice say “Stop, stop”. He did not know whose voice it was and said it may have been Constable Kleinman’s. Constable Fanning said that at that stage the distance between the male person and Constable Kleinman “was far too close” and that he had let the person come closer than he normally would have because he had not seen a knife at that point. However, he said that “what I saw was an object that could be used as a weapon and it could have taken my partner out”. He said that he “believed at that time [he] was thinking that [the object] could hit [Constable Kleinman’s] head”.

Constable Fanning then explained what happened next as follows:

Constable Fanning said that it was constantly reinforced in police training to look out for their partner. He said that he had initially aimed for the person’s chest when he was yelling out to him to stop, again, because that was part of their training. Constable Fanning said, however, that it went through his mind that he did not want to kill the person and so he lowered his aim to their stomach area. He said:

Detective Inspector Guyatt asked Constable Fanning why “in the first place” he had taken his firearm out of its holster. Constable Fanning explained:

Constable Fanning again explained that the person “got closer and closer” and would not stop, notwithstanding that he had called out to him at least two or three times and that it “clicked over in my mind I’ve run out of options, he’s too close to [Constable Kleinman]”. He knew that Constable Kleinman had a Taser. However, he did not know whether she had it out, or whether it was turned on. He said that, therefore, he “was relying on only my option as a method to save her and myself, mainly her, ‘cause she was closer”.

Detective Inspector Guyatt asked what would have happened had he not discharged his gun. Constable Fanning answered:

Detective Inspector Guyatt asked what the level of threat Constable Fanning believed there was at the time that he discharged his firearm. Constable Fanning responded:

Detective Inspector Guyatt then asked Constable Fanning whether the level of threat had “ceased or lowered at any time” when the person was moving towards him. Constable Fanning replied:

Constable Fanning also said that he believed that he had no other option to stop the threat. He had capsicum spray which he had used in the past against a person with a small knife who was threatening self-harm, but he said that that was only effective when a person was close and not effective at a distance of greater than 3 m. He said he also had an extendable baton, but the person running towards him had a long metal object, so the baton was not going to be effective. He said, “I didn’t feel like I had another option. I felt like that my only option to stop the threat”.

Constable Fanning confirmed that he knew that the object that the person was carrying was metal, as he had seen it from the light at the house. He described it as silver in colour. Detective Inspector Guyatt asked whether he had formed an opinion as to how dangerous the object was. Constable Fanning said that he “felt like it was … a weapon”. He added:

The following exchange then occurred:

Constable Fanning was then asked questions as to Constable Kleinman’s reactions at the time. He said that he did not know whether she had “gone into panic mode and frozen”, but from his “peripheral” vision he saw “that she was there” and that the person was “too close for [his] liking”.

Detective Inspector Guyatt then told Constable Fanning that it had been reported to him in the course of the investigation, that “at the point of the shooting”, the male person had “put the pole on the ground [and] was in the process of standing up”. Constable Fanning said that he had “heard that on the news” and that his “first reaction to that was bullshit. He confirmed that it was “bullshit”.

Constable Fanning was examined about certain of these matters during the course of his evidence at trial. He said that he had pulled his gun from his holster as soon as he became aware that the person “had a weapon”, “pretty soon after” he saw him in the floodlight. He said that:

Constable Fanning said that the person coming towards them had “breached the 7 metres that we are taught”. He said he was “waiting for a reaction” from Constable Kleinman, however, he didn’t take his eyes off the person coming towards him to check what Constable Fanning was doing.

Constable Fanning said that his decision to shoot the person:

He said that he was “waiting for a response from a taser” but did not see a red dot on the person and did not “see anything discharged from the taser”. He repeated that he “saw no other way of stopping the threat” from where he was. Constable Fanning also said in evidence that there was 3-4 m from himself to the person running towards him and that the person was 2-3 m away from Constable Kleinman. He said that was “further [meaning closer] than I would have allowed someone normally”.

Constable Kleinman described the woman who was running along the road towards the police vehicle as being “hysterical” and as “hardly [able to] sling words together”. It is not in dispute that this person was Kayla. Constable Kleinman said she tried to calm Kayla down. Kayla was saying “[h]e had a knife to my throat”, that the offenders were “still in the house”, and that “[t]here’s two in the house. The kids are still in there”. She made no mention of her brother being in the house.

Constable Kleinman then saw a woman in a “knitted white kind of shirt” running down the footpath on the grassed verge. The evidence established that this was Georgia. She said she then saw a male “coming up the street … in the middle of the road … holding some long, long thing I don’t know what it was in his hand”. She said that the object he was holding was facing upwards and “when he was running it was running with him”.

Constable Kleinman said that the male was yelling something that she could not understand. Meanwhile, she was “trying to hold on to [Kayla] … trying to move her off the road”. She described the male person as:

Constable Kleinman estimated that the male person was probably 10 m behind Georgia, “but to the side because he was in the middle of the road”. She said that Georgia was “yelling and screaming”, that the male person was yelling as well and that he was “real close”. She added:

Constable Kleinman said that when she first saw the male person running down the road she did not know whether he might have been one of the offenders. She continued:

Constable Kleinman described the physical position of Constable Fanning at this time as being:

She said that at the time that she heard the gunshot she thought she was 4 m away from the person with the pole and that Constable Fanning was only 2 m away from her. She said that she estimated these distances because she was trying to determine whether her Taser would reach the person coming towards them, that she was “a good … distance” and that Constable Fanning was “a little bit further than me”. She added that it was a bit hard to determine as it “all happened so fast”.

It is convenient at this point to note that in her evidence at trial, Constable Kleinman said that Constable Fanning was on her left side and that was the finding made by the trial judge at fact (11). This aspect of the trial judge’s finding at fact (11) was not challenged by the State. Constable Kleinman also stated in her evidence that when she first saw Justin, he was about 20 m away, and that when he was shot, he was less than 4 m away from her. She believed he was 2 m from her. She said that Constable Fanning was on the roadway, slightly in front of her. Kayla was to her right behind her. She said that she was not sure where Georgia was.

Constable Kleinman was questioned in her ERISP as to what options she had to stop Justin. She said that she did not consider the use of her baton or capsicum spray as viable options, given that Justin was holding the pole which was longer than her baton and also that she did not know whether he had a knife. She said that if Justin had a knife, he would “probably come at me with the knife quicker than I could spray something”, so that the spray would not have been effective to stop him.

She also said that both from her experience, and from what she had been told, capsicum spray was not always effective in stopping a person from continuing to move. Constable Kleinman said that in the circumstances, she “automatically went for” her Taser. She said that if she had not had her Taser, she would probably have “pulled [her] gun straightaway”.

Constable Kleinman said that as the male was running towards her she thought he might have been “one of the offenders” who had held the knife to Kayla’s throat. She was asked how she had felt about the person running out of the house “with this massive pole”. She responded:

The walk through video was filmed on 27 September 2011, the day after the incident.

In the walk through video, Constable Fanning initially indicated that he was standing in the street what appears to be less than a foot from the driveway of 6 Holmes St when he saw Justin emerging from the house. He indicated that Constable Kleinman was to his right, closer to the middle of the road. Georgia and Kayla were somewhere behind Constable Kleinman, although the statement relating to them was accompanied by the comment “I don’t know”. Later in the video, Constable Fanning indicated that he was in fact standing considerably further towards the middle of the road than he had initially indicated.

Constable Fanning said that he could see Justin clearly in what appeared to be a strong floodlight from his point of exit. However, he also said that his view was momentarily partially blocked, such that he could only see Justin’s head and something metal sticking up in the air. He could not recall whether the blockage was a tree, telegraph pole, small bush, or vehicle.

Constable Fanning gestured that when Justin emerged he was holding something above his head and was swinging it forwards and backwards in what appears in the video to be a spearing motion. Justin then came running down the road and Constable Fanning moved back and said “stop, police”. Constable Fanning said that he allowed Justin to get very close. He said that Constable Kleinman was at that time to his right near the centre of the road and he thought that Georgia and Kayla were in between him and Constable Kleinman. He indicated that Justin had run down the road, closer to the opposite side than to the side on which he was standing, but had moved towards the centre as he approached. He said that in his memory, there “was only a matter of metres between [Justin] and Constable Kleinman” when he was shot.

Constable Fanning said that he did not draw his firearm until he saw Justin emerging from the house. He said that he originally held the pistol in a cover position but raised it to point to Justin’s upper torso when Justin started coming down the road, could be seen clearly, and was not responding to calls to stop. He lowered it to Justin’s lower torso immediately before he shot because his intent was not to kill but to stop the threat. Constable Fanning agreed that Justin was approximately 1.5 or 2 m away from Constable Kleinman at the moment that he discharged his gun. He emphasised that it was dark and there was limited street lighting, but that when he shot he had a clear view and a clear shot.

Justin was interviewed in the intensive care ward at Westmead Hospital at 7 pm on 26 September 2011, that is, is on the same day as the shooting and a short time after undergoing surgery. The trial judge did not accept that Justin had made voluntary admissions in the course of this interview to the effect that Constable Fanning had made an honest mistake in shooting him and that he was shot by accident. This was not challenged by the State. However, the State placed some reliance upon Justin’s recollection of how things had unfolded up to the point that he was shot.

In his statement to police, Justin said that he knew two of the offenders, but did not recognise the third member of the party. He saw one of them with the knife to his sister’s throat. He said that he heard a siren. That, of course, could not have been correct, as the police siren had not been activated. He said that he grabbed the “top rail piece” of the vertical blinds and that as he was running, he was holding it:

He was asked what was going through his mind at that point and he said:

He said that all he saw was “a couple of figures standing around my sister”. He said he thought those persons were the offenders. He said that by the time that he realised they were police officers, his hand “was already on my stomach and I was wrecked. I was out”. He said that the police officer had told him he should have stopped because he “yelled it out a fair few times”. However, Justin said that “with what was going on in my mind at that time I couldn’t hear it”.

Justin was asked how far he was from the police officer when he was shot. He initially described the distance by reference to his position in the bed to the door. When asked how far that was, he said “[a couple of] metres. Three metres, four metres”. He said that at that time he was still running which he described as not being “like a flat sprint but it wasn’t like a jog either”. He reiterated that he was just trying to get to his sister.

As already mentioned, Justin also said that this shooting by the police officer “was an honest mistake”. When asked why he said that, Justin responded:

Justin said that after he had been shot, the police officer picked him up and carried him over to the footpath. He laid Justin down and put pressure on the wound and kept talking to him, making sure that he was awake and that he was all right. Justin said:

Justin confirmed in his evidence at trial that he had grabbed the curtain rod and started to run out from the house. He said that he would have used it “if need be and [his] sister was at the point was going to get hurt”. In cross-examination, Justin agreed that he was holding the rod above his head ad it was going backwards and forwards. He also accepted that he was running towards his sister when he got shot.

Justin gave evidence at the trial of the intruders. In that evidence, he said that he was running towards his sister. At that stage, he did not know whether the intruders were still with her or not. He said he just wanted to protect her. He did not see anybody else until he got shot. He said it was that point that he “actually snapped into it, looked around and I saw my mum, my sister and the police”.

Kayla gave evidence that, of the two police officers, Constable Kleinman was closer to the gutter. She was not certain where her mother was, but remembered that her mother was closer to Constable Kleinman. Kayla said that she was closer to Constable Fanning and of the four, she was furthest from the gutter. She said that she was not directly in the middle of the road but between the middle of the road and the gutter. In response to a question as to whether she observed Justin coming towards her, or towards someone else, she responded, “No, he was just running. I don’t know who he was coming at”.

Kayla agreed, however, that Justin was running in the direction where she was but he had slowed down before he was shot. He had not however, “come to a dead stop”. Asked whether Justin was only a distance of “one, two, perhaps metres away” from the police officer, she said that she was not sure as to how many metres away. She said Justin was “a bit away from the officer, yeah” and a bit further back than two or three footsteps. She agreed that it all happened very quickly.

The confusion occurring at the time was captured in the following cross-examination:

Georgia said that when she first saw Justin, he was in the middle of the road holding the curtain rod. According to her description, he was holding it with both hands together like a baseball bat and that was holding it to the right-hand side. She said he was calling out, “[w]here’s my sister? Where’s my sister?”. Georgia said that at that point, they were all standing on the grass facing back towards the house, with the female officer and Kayla on her left and the male officer on her right. On that description, Constable Fanning would have been closest to the gutter, although Georgia gave evidence that the four were “[a]ll pretty much close to the road because we were right – just before the gutter”.

Georgia also said that when the police officer pulled out his gun she said, “[t]hat’s my son. That’s my son”. She said that she said this to both officers, because one had a Taser and the other had a gun and she did not want them to use them on her son. She said that she wanted the officers to know that he was not one of the intruders.

Georgia also gave the following evidence in chief:

Georgia denied in cross-examination that Justin at any time had come in the direction of the police. She said that he “stood there, like, dumbfounded”, that he “stood there because he was trying to register what we were saying to him” and that “he just stood still”. She said that he stood on the roadway for “a couple of minutes” and that when the police told him to drop what he was carrying, he “was starting to put it down”. In cross-examination, Georgia was unsure whether Justin had put the rod down or whether it was still in his hand at the time that he was shot by the police officer.

Georgia also said in cross-examination:

At that point, his Honour said, “Probably a bit longer than that. Four to 5 metres?” Cross-examining counsel answered, “I’m happy either way, your Honour”.

Georgia reiterated in cross-examination that Justin did not run towards the police: “[h]e ran to the middle of the road”. She denied that not only did Justin not stop, but that “he kept coming at the police, specifically in their direction”. She said, “[n]o, he never once came running towards the police”.

Jasmin ran out of the house after Justin. She was carrying a knife. She said that from the time that she came out of the house until Justin was shot, both Kayla and Georgia were screaming and yelling. She said that Justin was running in the direction of Kayla. She said that he started slowing down when he noticed his sister. She said that Justin was “probably like five or ten steps” away from the police officers when he was shot. In cross-examination, she said that Justin was about five to six steps away from the police officer when he was shot. After clarification with the trial judge, she agreed that that distance was a little less than 2-2.5 m.

The essential fact challenged in fact (11) was the side of the road upon which the police vehicle was parked and, as a result, the side upon which the police officers were standing. The respondents conceded that his Honour’s finding that the police officers were standing towards the western gutter was incorrect and they were standing towards the eastern gutter. The respondents contended, however, that this was a mere slip and that it was apparent from other parts of the judgment that his Honour was well appraised of the position of the police officers and Kayla and Georgia. It followed on this submission that his Honour’s error did not otherwise impact upon his findings as to what occurred. The State placed particular emphasis on the balance of the findings in fact (11), that Constable Fanning was in front of and to the left of, Constable Kleinman. The State submitted that this meant, as Constable Fanning said in his evidence, that he did not know whether Constable Kleinman had drawn either her Taser or her gun.

His Honour’s finding in fact (13) that Justin ran down the middle of the road was not contested. Once the error regarding the position of the police officers in relation to the gutter was corrected, it became apparent, on the State’s submission, that his Honour erred in his finding in fact (13) that Justin was at no time at running towards either Constable Fanning or Constable Kleinman. Given that Constable Fanning was standing to the left of Constable Kleinman, being an unchallenged aspect of the facts found by his Honour at fact (11), it followed that Constable Kleinman was standing further away from the gutter than Constable Fanning. That, in turn, meant that her position was near or at or proximate to the middle of the road.

The respondents accepted that Constable Kleinman was standing a little away from the gutter. They contested that that placed her in or near the centre of the road. They pointed out that the first contact between the police and Kayla occurred when she knocked on the window of the police vehicle, which had come to a stop on the eastern side of the roadway, outside number 8, or perhaps on the boundary of numbers 6 and 8. They also refer to the absence of any statement in Constable Kleinman’s ERISP that she was standing in the middle of the road. They pointed out that his Honour’s finding at fact (11) was that both Constables “were standing towards the … gutter”, the only challenge being that it was the eastern, not the western, gutter as stated by his Honour. They submitted, in summary, that when the correction to fact (11) is made, there was still no basis upon which it could be said that Constable Kleinman was in the centre of the road. She was standing towards the eastern gutter.

The State then dealt with its challenge to his Honour’s finding, at fact (18), that Constable Fanning discharged his revolver “when Justin was about 5 m away” by reference to the estimates of distance given by the witnesses other than Georgia. All the other evidence had Justin at a distance of 2-3 m from Constable Kleinman (Constable Fanning: 2-3 m; Constable Kleinman: 2 m; Kayla: a bit further back than 2-3 footsteps; and Jasmin: 2-2.5 m).

The State submitted that given these dynamics, that is, the position of the various individuals, the fact that Justin was running, yelling out and carrying a long rod, that he did not have any sense that the persons with his sister and mother were police officers, that he did not stop when called upon twice or possibly three times to do so, then, contrary to the finding of the trial judge at [178], it was clear that Justin posed a direct threat to Constable Kleinman at the moment he was shot.

The respondents submitted, however, that Georgia’s evidence directly supported his Honour’s finding at fact (18) that Constable Fanning discharged his pistol when Justin was about 5 m away from him, bearing in mind that his Honour’s finding was that Constable Fanning discharged his pistol “diagonally” across the street. The respondents also submitted that Kayla and Jasmin’s evidence, particularly their respective accounts in their evidence in chief, effectively supported this assessment of the distance between Justin and Constable Fanning at the point where he was shot. The respondents submitted that the significance of the State’s contention that the distance was less than that found by his Honour was to support its contention that the apprehension of danger must have been closer.

The only person who gave evidence of a distance of 5 metres was Georgia. The respondents rely upon the acceptance by counsel for the State that the distance indicated by Georgia was 5 m, or perhaps 4-5 m, being the assessment of the distance that she indicated during the course of her cross-examination. However, it should be said immediately that this was not an acceptance by the State that that was the distance between Justin and Constable Fanning at the time that Justin was shot. Rather, it was an acceptance by the State of the distance that Georgia was estimating by reference to her position in the witness box and the front row of seats in the courtroom.

The respondents submitted that, although his Honour made no adverse credit finding against any of the witnesses, what was essential to his ultimate fact finding was his assessment of the reliability of the accounts given by the various witnesses. In this regard, his Honour was entitled to and did accept part of the evidence of certain of the witnesses and did not accept other parts of it, as he was entitled to do: Abalos v Australian Postal Commission [1990] HCA 47; 171 CLR 167, especially at 178-179 per McHugh J.

This was significant, on the respondents’ argument, because in making the findings at [199], [203] and [246] that Constable Fanning was not acting in defence of himself or Constable Kleinman; that Constable Fanning’s evidence that he acted in self-defence of Constable Kleinman was a post-event justification; and that the reason he shot Justin was because Justin failed to stop, his Honour had rejected Constable Fanning’s evidence in those essential respects. The respondents submitted that in doing so, his Honour’s conclusions were based upon his assessment of Constable Fanning’s evidence as a whole.

The respondents also referred to other aspects of Constable Fanning’s evidence not accepted by the trial judge. However, as the statement in Abalos v Australian Postal Commission instructs, that was the trial judge’s entitlement and indeed was required of him in determining the facts where there were inconsistencies in the evidence of all witnesses and between witnesses. It is only where the advantage of a trial judge in having seen the witnesses and in hearing the evidence cannot explain or justify the conclusion that appellate intervention is warranted: Abalos v Australian Postal Commission at 178.

The respondents’ concession that the group was standing near the eastern gutter and the evidence which placed Constable Kleinman further from gutter than Constable Fanning (being the evidence of all the witnesses except for Georgia) makes it clear that Constable Kleinman must have been standing towards the centre of the road. The evidence does not permit any more precise finding to be made.

That leaves for consideration the question of how far away Justin was when he was shot. This in turn raises the question: “How far from whom?”, about which the trial judge was not entirely clear. His Honour’s finding was that “[w]hen Justin McMaster was about 5 metres away, Constable Fanning discharged his service pistol towards him, diagonally across Holmes Street”. In context, the finding appears to be that that was the distance between Justin and Constable Fanning. As I have indicated above, it appears that even according to Georgia’s evidence, Constable Fanning was standing closest to the gutter, which of itself would have required a finding of a distance of less than 5 m from Constable Kleinman.

Even accepting that the effect of Georgia’s evidence was that Justin was up to 5 m away from her when he was shot, the reliability of her evidence is such that it ought not to have been accepted. Her evidence was singularly different from the other critical evidence in the case. She placed Kayla and the police officers on the grass verge. No one else placed anybody there at the time when Justin was shot. She said that Justin had put down the curtain rod and was in the process of standing up or was in the process of putting the rod down, when he was shot. She said that Justin had come to a “dead stop”. No one else gave that evidence.

However, much of this is beside the point as a central question, if not the critical question as to whether Constable Fanning was acting in self-defence was the distance between Justin and Constable Kleinman. His Honour did not make a finding on that question. I have referred to the evidence of the various witnesses as to that distance. At the most, the distance was 3 m and more likely between 2-3 m. In some respects, Jasmin’s evidence provided an important touchstone against which to assess the reliability of all the other evidence. She had not been directly involved in the traumatic events of the evening and was not reported to be hysterical, as were Georgia and Kayla. She was running behind Justin. Her evidence was that Justin was running towards Kayla when he was shot and at that point was about 5-6 steps, or 2-2.5 m away from the police officer (although in her evidence in chief she said 5-10 steps away). Again in context, this must have been a reference to the distance from Constable Kleinman.

Kayla gave evidence that Justin was running towards the group. She could not say if he was running towards anyone in particular. Her description had each individual positioned reasonably close to each other. Given that the evidence was unequivocal that Justin was running down the centre of the road towards the group, it was not accurate to conclude, as did the trial judge at fact (13), that he was not running towards either of the police officers.

In my opinion, the State’s submission, at [16] above, should be accepted. Except for Georgia’s evidence, the evidence was consistent that Justin was running down the street, although he slowed as he got close to the police. He was carrying a metal rod. He was yelling out. He did not respond to the police command to stop. He came within a distance of less than 5 m of the police officers and, on the evidence as a whole, was probably 2-3 m from Constable Kleinman when he was shot. On Justin’s statement taken at the hospital, he was “running around like a psycho” and it was in his mind to “take [someone’s] head off” if he found someone with a knife to his sister’s throat. He confirmed in his evidence at the trial of the intruders that he was running with the intention of protecting his sister, whom he understood was in danger.

There are two further related reasons why his Honour’s finding that Justin did not pose a direct threat to either police officer ought not stand. First, both police officers independently and, virtually at the same time, perceived a threat sufficient to cause each to draw a weapon, Constable Fanning his gun and Constable Kleinman her Taser. It would be an extraordinary coincidence for two officers to react independently to a non-existent threat.

Secondly, this finding required his Honour to expressly reject the evidence of each of the police officers on this point. He did not do so. Nor, in my opinion, was there any reasonable basis upon which to reject this aspect of their evidence. It was not a matter where their independent recollections of position, distance or words spoken might have been unreliable. It was evidence of what they perceived in a set of circumstances where each knew a serious assault had taken place, where each knew a knife was involved in that serious assault, where a male person was running towards them in what could be described as a crazed way, was armed with a rod of some 1.5 m in length, had failed to obey a command to stop and was closer to them than their police training indicated was a safe distance.

These considerations are not undermined, in my opinion, by the fact that Justin’s speed had slowed a little just before he was shot. He had not changed the position of the rod. He did not obey the command to stop and Constable Fanning believed that the person with whom they were dealing still posed an imminent threat with which he had to deal. The State submitted , in any event, that there was an inherent inconsistency in the trial judge’s finding at fact (28) and his conclusion, at [178], that there was no direct threat to either police officer at the time he was shot. Even accepting that it could be said that there was a reduced threat given that Justin had slowed his pace, a reduced threat is nonetheless a threat. In determining whether the reaction to a threat was reasonable, much will depend on the level of threat. An extremely high threat, even if reduced to some degree, still warrants the same reaction.

His Honour’s reasoning at this point is not entirely clear as he was using Constable Kleinman’s statement in her ERISP that Justin had slowed to a “swift walk” and Constable Fanning’s statement to the investigating police that there had been a reduction in the threat posed by Justin before he was shot, to underpin his finding that Justin had slowed down before he was shot. However, I am of the opinion that the preferred understanding of fact (28) is that his Honour accepted the evidence of both Constable Kleinman and Constable Fanning. That his Honour did so, in my opinion, reinforces the view to which I have come, that there was no reason not to accept the evidence of the police officers as to their reactions to what was happening at that point of time.

I would allow grounds 2(a)-(d) of the State’s notice of appeal as against Justin.

The trial judge, at [199] and [203], rejected the State’s case that Constable Fanning was acting in defence of Constable Kleinman at the time he shot Justin. His Honour found that Constable Fanning’s evidence to that effect “was a post-event justification of his actions”. Rather, on his Honour’s finding, Constable Fanning shot Justin because he failed to respond to the command to stop. His Honour considered that this was apparent because when Constable Fanning went to Justin’s aid immediately after the shooting he said to him “why didn’t you stop?” His Honour also considered it relevant that at that time Constable Fanning referred to the rod that Justin was carrying as “a stick”. Indeed, his Honour stated that that was what Constable Fanning believed Justin was carrying.

His Honour also observed, at [199], that Constable Fanning did not communicate with Constable Kleinman as to her perception of the events. This was relevant in his Honour’s opinion, as Constable Fanning knew that Constable Kleinman had a Taser that was operational. His Honour, at [200], found that Constable Fanning’s conduct in discharging his gun “was not a reasonable response in the circumstances as he perceived them”. It was relevant to his Honour’s reasoning in this regard that Constable Fanning did not know who Justin was or what he was doing. The problem, as his Honour saw it, was that Constable Fanning had drawn his gun at an early stage such that its use became inevitable and the use of some other option was precluded. His Honour concluded, therefore, that the defence of self-defence was not made out pursuant to the Civil Liability Act, s 52.

His Honour then dealt with self-defence at common law. His Honour stated that the test for determining the defence was whether the force used was both necessary and proportionate to the threat faced: Fontin v Katapodis [1962] HCA 63; 108 CLR 177; Underhill v Sherwell [1997] NSWCA 325. His Honour concluded, at [203], that the shooting was precipitated by Constable Fanning’s early decision to draw his pistol when Justin first came into view on the driveway and his determination to use his pistol, notwithstanding that there was no direct threat to either himself or Constable Kleinman.

The State challenged this reasoning at a number of levels. In relation to his Honour’s observation that Constable Fanning did not know who Justin was, the State pointed out that whilst that was literally accurate, Constable Fanning believed and had reasonable grounds for believing that the person running towards him was one of the intruders. Likewise, the State was critical of his Honour’s observation that Constable Fanning did not know what Justin was doing. Constable Fanning did know what Justin was doing, namely, running towards him, with an implement that looked like a weapon, yelling and screaming. Thus, whilst he may not have known what was in Justin’s mind as to what he was trying to do, namely, protect his sister, Constable Fanning was acutely aware of Justin’s physical activity at the point that he shot him.

The State further submitted that his Honour’s reasoning in this part of his judgment was inconsistent with his findings in respect of the claim based in negligence. It referred in particular, to his Honour’s finding, at [191], that Constable Fanning owed no relevant duty of care to Justin, that the circumstances were such that the police officers:

The State pointed out that although Constable Fanning had called the implement in Justin’s hand “a stick”, as he had acknowledged in his ERISP, nonetheless he stated that what he saw was a weapon. The trial judge failed to refer to this. The State also submitted that Constable Fanning’s failure to communicate with Constable Kleinman as to her perception of the events was no more than comment and in any event was irrelevant.

What was relevant, on the State’s submission, was that Constable Fanning was alert to the fact that Constable Kleinman had a Taser and that he only fired at the point which he considered to be critical in circumstances where, as he observed, the Taser had not been activated. For him to have taken his attention away from Justin at that point in order to communicate with Constable Fanning would not have been appropriate, given how close Justin was and given that he was still moving towards the group. Further, the prospect of any verbal communication between the two officers would also have been problematic, given that Kayla and Georgia were both screaming and “hysterical”, Constable Fanning was calling out to Justin to stop and Justin was calling out for his sister.

In my opinion, given the critical nature of the operation and the very short period of time over which these events happened, it was not unrealistic, or at least not unreasonable, for there to be no communication between the two police officers. I also accept the State’s submission that his Honour’s conclusion, that the only reason that Justin was shot was because he did not respond to the command to stop, failed to deal with the consequence of Justin not stopping.

The evidence established that Justin was intent on doing what was necessary to assist his sister. He was not thinking clearly. He was ready to use the rod as a weapon, “to take someone’s head off”. He was yelling. He had not realised that police were present. Everything was happening very quickly, in a “split second”. Constable Kleinman was the physical body between Justin and Kayla. Constable Fanning said that when no response came from the Taser, he “saw no other way of stopping the threat from where [he] was”. Although Constable Fanning did not know what was in Justin’s mind, he did know that a knife had been involved in the attack; that the person running towards him was holding something that could be used as a weapon; that the person was running towards the group; and that in Constable Fanning’s assessment, he looked crazed.

In cross-examination, a series of questions were put to Constable Fanning relating to whether he would have believed that he was acting in defence of Constable Kleinman had she been on the grass at the time of the shooting, rather than on the road, as Constable Fanning maintained. However, as the State submitted, it was never squarely put to Constable Fanning that, in the circumstances as he recalled them, he did not hold the belief that he claimed. There was thus no evidence such as to contradict Constable Fanning’s statements regarding his state of mind. In the circumstances, his evidence should be accepted.

Thus, whilst the finding, at [199], that Constable Fanning shot Justin because he did not respond to the command to stop, was correct, his Honour failed to consider why it was that Constable Fanning made that decision. In my opinion, the evidence established that Constable Fanning subjectively assessed that Justin posed a threat to Constable Kleinman and that assessment was reasonable in the circumstances. I would allow ground 2(e) of the State’s notice of appeal as against Justin.

As indicated above, the trial judge, at [202], stated that at common law, a defence of self-defence cannot be made out unless the force used was both necessary and proportionate to the threat faced. He cited Fontin v Katapodis and my statement in Underhill v Sherwell that:

His Honour concluded, at [203], that the force used by Constable Fanning was neither necessary nor in reasonable proportion to any threat posed by Justin. According to his Honour:

In Fontin v Katapodis, the respondent suffered a serious injury to his hand when he used it to block a piece of glass, fifteen inches long, which the appellant had thrown at his face in the course of an argument. The respondent at the time had been hitting the appellant with a T square.

McTiernan J, at 181, found that the appellant had a clear right to defend himself against the respondent. He framed the question to be asked as follows:

At 182, his Honour held that, in the circumstances, the appellant’s actions were “out of all reasonable proportion to the emergency confronting [him]”. He went on:

Owen J, with whom Dixon CJ relevantly agreed, also found that self-defence was not made out. At 186, his Honour held that the trial judge was correct in finding that the fact that the appellant had available to him a means of escape was a “very material matter”, though he noted at 186 that:

Dixon CJ agreed with Owen J with the additional “reservation or observation” that leave in Howe was granted on questions of law only, and the court was not concerned with the question whether there were any factual grounds for the defence of self-defence: at 179.

It is not necessary for present purposes to further consider Dixon CJ’s reservation expressed in relation to the decision in Howe as the State’s primary submission on this ground was that Fontin stated an objective test for the determination of whether self-defence had been made out, whereas the correct test was that stated in Zevecic which has both objective and subjective elements. For the same reason it is not necessary to consider the State’s suggested analysis of McTiernan J’s judgment as in fact containing a subjective element, notwithstanding the purely objective way in which his Honour stated the test.

In Zecevic, the appellant was convicted of murder in relation to an incident in which he killed his neighbour in the course of an argument. He gave evidence that the deceased had stabbed him several times and threatened to “blow [his] head off”. The appellant retrieved his own gun and shot the deceased.

Wilson, Dawson and Deane JJ, at 661, stated the question to be asked in assessing a claim of self-defence as being:

Their Honours noted, at 661, that that “the test is one of general application and is not limited to cases of homicide”. Similarly, at 665, they noted that the test as stated “restores consistency to the law relating to self-defence whether raised in a case of homicide or otherwise”.

At 662-3, their Honours noted that the jury, in considering self-defence:

The State submitted that the test applied by the Court in Zecevic involved subjective and objective requirements, as follows:

The State contended that, for the purposes of the second limb of this test, the grounds had to be reasonable on the basis of what the defendant subjectively believed or saw: see R v Conlon (1993) 69 A Crim R 92 at 98-99.

The State contended that test from Zecevic applied to the conduct of Constable Fanning, notwithstanding that Zecevic was a criminal case. The State accepted that this test was inconsistent with the formulation of the test by McTiernan J in Fontin v Katapodis which required only the satisfaction of the objective question whether, in the circumstances, it was reasonably necessary to do what was done. However, the State contended that the statements in Zecevic relating to “general application” and “consistency” were intended to convey their general application not only within the criminal law but in the civil context as well and that Fontin v Katapodis was no longer good law as to the test to be applied in a civil suit.

In support of its submission that the test to be applied was that stated in Zecevic, the appellant also relied upon the references in Fontin v Katapodis to Howe as indicating that the test for self-defence in civil and criminal cases was the same. In addition, it submitted that the underlying requirement for coherence in the law pointed to the test in Zevicic being the applicable test at common law. The submission, put simply, was that it would be curious if a person was permitted to respond in a particular way under the criminal law but would, by the same act, be exposed to tortious liability. Finally, it relied on a number of authorities in which Zecevic has been applied to civil suits, including Watkins v State of Victoria [2010] VSCA 138; 27 VR 543.

In Watkins v State of Victoria, the appellant brought a claim of civil assault against a number of police officers arising out of an incident which occurred when he attended a police station and refused to give his fingerprints. The trial judge found, relevantly, that the police officers had made out self-defence.

Ashley JA and Beach AJA (with whom Mandie JA agreed), at [71], applied the test from Zecevic in effectively the terms for which the appellant contended, as follows:

Their Honours continued:

Their Honours held that the trial judge had erred in finding that self-defence was made out and allowed the appeal. They found, at [98], that, contrary to the respondent’s submission, the appellant did not lunge or move forwards at the police officer in question. At [99], their Honours held that it followed that:

Their Honours, at [99], also noted that, even if the factual circumstance of the lunge had been made out, the police officer would not have had reasonable grounds to do what he did, namely, to use all his force to strike the face of a smaller man who was under restraint by two other police officers.

I have referred above to the trial judge’s reference to the decision in Underhill v Sherwell. In that case, the appellant brought a civil action for trespass to the person arising from an incident in which she had attacked the respondent with her fists and feet. The trial judge found for the respondent on the basis that he was acting in self-defence. The Court applied the test in Zecevic and held that, whilst the respondent had a right to defend himself, he had not made out self-defence, the onus being on him to do establish that defence. The Court in Watkins approved that aspect of the decision: see at [74].

In my opinion, the State’s submission that the test stated in Zecevic, as described above, at [156], applies to the defence of self-defence at common law is correct. That is supported by Watkins and Underhill, as well as by Miller v Sotiropoulos [1997] NSWCA 204, a further decision of this Court applying Zecevic to a civil claim.

The respondents accepted that Watkins correctly stated the law. This, as I understand it, was an acceptance that the test in Zecevic applied to a civil suit.

The second limb of the Zecevic test requires that the defendant’s belief be reasonably held. The meaning of a requirement that a belief be reasonably held was considered in George v Rockett [1990] HCA 26; 170 CLR 10. There, the High Court (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ), held that a search warrant was invalid. At 112, their Honours, in the context of a statutory requirement that there must be reasonable grounds for a state of mind, stated:

Their Honours went on to consider the meaning of “reasonable belief” in particular, at 116:

In the present case, whether Constable Fanning had reasonable grounds to believe that it was necessary to shoot Justin in defence of Constable Kleinman raises the question whether the shooting involved excessive force such that Constable Fanning’s response to the threat was not reasonable.

Proportionality of force was a significant factor in Fontin, Zecevic, and Watkins. In Zecevic, Wilson, Dawson and Deane JJ noted, at 662, that the question of proportionality of force was factually relevant, but not determinative as to whether self-defence is made out. Their Honours stated:

However, at 664, their Honours noted that a factual finding of force beyond what was necessary would be determinative of the question of self-defence:

In Watkins, Ashley JA and Beach AJA held, at [73], that

In Underhill, in coming to the conclusion that the defendant had not established the defence of self-defence, I stated at 8 that “if excessive force is used the defence fails”. This strongly stated proposition was not intended to indicate that there was an additional test for making out self-defence, beyond that determined by the High Court in Zecevic. As the above passage from Zecevic indicates, if there is a finding that there were no reasonable grounds for the belief that the degree of force used was necessary, the defence will not have been made out. Excessive force, by the very reason of it being excessive, would generally go beyond what was reasonably necessary, so that the defence would fail. But it all depends upon the circumstances. The position was well stated by Hunt CJ at CL in Lean v R (1993) 66 A Crim R 296 at 298:

The statement in Underhill was a reference to circumstances in which the test of reasonable necessity was not made out. If it meant, or is taken to mean, more than that, I would accept that it is not a correct statement of the law. What I consider to be a proper understanding of Underhill is consistent with Zecevic at 664, quoted above, and is also consistent with the State’s oral submissions, as I understand them.

There are other cases where the question of the degree of force was in issue. In Lean, to which I have referred above, there was an altercation in a hotel restaurant between the two appellants and the victim, Mr Crowley. The appellants had been verbally abusing the victim, and he took each of them by an arm and attempted to lead them out of the hotel. At that point, both appellants struck the victim with the glasses they were holding and continued to do so until they broke.

The appellants submitted that the trial judge had wrongly directed the jury that if they determined that the glasses used by the appellants were deadly weapons, the Crown had established that excessive force had been used and self-defence was not made out. Hunt CJ at CL (Smart and James JJ agreeing) held that Zecevic overrode previous authority to the effect that self-defence could not be made out if a deadly weapon were used to repel a common assault. Of that authority, his Honour held, at 299, that “[h]owever factually it may represent what happens in the usual case, it is not a correct statement of the law as laid down in Zecevic v DPP (Vic)”.

The State submitted that, contrary to the trial judge’s finding at [203] that self-defence was a “post-event justification”, the Court ought to find that the subjective element of self-defence was made out and that there were reasonable grounds for Constable Fanning’s belief.

The respondents submitted that having regard to the trial judge’s findings at [178], [199], [200] and [203], a finding repeated at [246], the State had not established the basic elements of the defence of self-defence. The respondents submitted that these findings were directly contrary to Constable Fanning having used reasonable force.

It follows from my conclusion at [143] above that Constable Fanning subjectively believed that it was necessary to do what he did in defence of Constable Kleinman. It follows that the first limb of the test is made out.

As to the second limb, in my opinion, having regard to the factual findings that I consider ought to be made and for the reasons discussed above at [140]-[143], there were reasonable grounds for Constable Fanning to use the force he did to stop Justin. Justin was within 2 to 3 m of Constable Kleinman and was holding an implement that, because of its length could clearly be used as a weapon at a distance of slightly under 2 m. He was acting in a way that gave every indication that he was intent on doing so, not having stopped in response to the police commands to do so.

There was nothing to alert the police officers to the fact that the person running down the road was not one of the intruders. What the police officers did know at that time was that the intruders had acted in a physical and brutal way at least towards Kayla and that at least one of the intruders had a knife. I would accept the explanations given by the police officers for not using some other method of getting Justin to stop as being entirely reasonable in the circumstances.

Further, it is not to point to question whether Justin would have or may have realised that there were police officers present and therefore stopped within the next few metres. As the High Court stated in George v Rockett, it is not necessary that the objective circumstances establish that the subject matter, in this case the threat or likelihood of harm to Constable Kleinman, in fact existed. The relevant belief may be based on surmise or conjecture.

Here, Constable Fanning made an assessment that there was an actual threat of physical danger to Constable Kleinman and that he had no other way of controlling that threat but to discharge his pistol. On the evidence, I consider that there were reasonable grounds for his belief. I would uphold ground 4 of the State’s notice of appeal as against Justin that Constable Fanning acted in self-defence.

The Civil Liability Act, s 52 provides:

Section 52 appears in Pt 7, entitled “Self-defence and recovery by criminals”. The terms of s 52(2) are the same as those of the Crimes Act 1900 (NSW), s 418(2).

There are three elements of the defence for which s 52 provides that are relevant to this matter:

The conclusions I have reached above in respect of common law self-defence mean that the second and third of these elements of the s 52 defence have been satisfied. The critical question, therefore, is whether Justin was acting unlawfully. The trial judge found, at [199], that Justin’s conduct was not unlawful. His Honour did not, however, articulate why that was so.

The State submitted that Justin engaged in unlawful conduct, being a common assault in contravention of the Crimes Act, s 61 and custody of an offensive implement in contravention of the Summary Offences Act 1988 (NSW), s 11B. A submission that Justin assaulted a police officer, in contravention of the Crimes Act, s 60(1) was not pressed. The State also submitted that “unlawful” as it appears in s 52 may extend to conduct which is merely tortious, that is, not criminal, and that s 52 should therefore also apply in this case for the additional reason that Justin was committing a trespass to the person when he was shot.

The Crimes Act, s 61 provides, relevantly:

An assault is any act that intentionally causes another person to apprehend immediate and unlawful violence: R v Knight (1988) 35 A Crim R 314 at 316-317. An act done recklessly that causes such an apprehension also falls within s 61. An act is reckless where the person foresees the likelihood of causing injury or fear but nonetheless, in acting, ignores that risk: Vallance v The Queen [1961] HCA 42; 108 CLR 56 at 61 per Dixon CJ; Blackwell v The Queen [2011] NSWCA 93; 81 NSWLR 119 at [76]. An act will not be reckless if the person does not advert to the consequences of the conduct concerned: Macpherson v Brown (1975) 12 SASR 184 at 189. See also Pemble v The Queen [1971] HCA 20; 124 CLR 107 at 119.

The Crimes Act, s 418 provides a defence to s 61, as follows:

The Summary Offences Act, s 11B provides:

The respondents submitted that Justin’s actions did not constitute an assault and that there was nothing in his conduct that was intentional, reckless or even negligent. There was also a complaint that the State had not pleaded any unlawful act. However, as his Honour held at [199] that Justin’s conduct was not unlawful, the matter must have been in issue.

The respondents further submitted that Justin was, in any event, acting in defence of his sister, such that he would have been entitled to the benefit of the defence under s 418 and would have had a “reasonable excuse” within the meaning of s 11B(1). The respondents submitted that this was supported by his Honour’s findings at [177] (2) and (3). Those findings dealt with that part of the incident before Justin commenced to run down the road. The key evidence that related to the conduct said to constitute the assault was that he was running down the road, armed with the rod, looking for his sister and that if his sister was “going to get hurt, [he] would have used [the curtain rod]”.

In Taikato v The Queen [1996] HCA 28; 186 CLR 454 Ms Taikato was convicted of an offence of possessing an instrument capable of discharging an irritant contrary to the Crimes Act, s 545E, in circumstances where she had for some years armed herself with a canister of formaldehyde in case she needed to defend herself should she be attacked. Her defence under s 545E(2) that she was carrying the canister for a “lawful purpose”, being self-defence, was rejected. The plurality considered, at 460, that “lawful purpose” within the meaning of the section meant “positively authorised by law”.

Relevantly for the purposes of the present case, their Honours stated, at 463, that “the existence of a right of self-defence cannot be determined until after the fact of a particular attack or threatened attack”. Their Honours had explained earlier, at 463, that:

In this case, Justin did not know where Kayla was or whether she was still being subjected to the criminal conduct of the intruders. For all he knew she may have been being cared for by a neighbour in a nearby front yard. All that the evidence established was that he was looking for her and would have attacked any person who, should he come upon them, was assaulting his sister. Should those circumstances have occurred, Justin may have been entitled to avail himself of the defence under s 418. However, those were not the circumstances. No-one was assaulting Kayla at the time the shooting occurred. At the most, at that time, Justin had an intention to protect his sister, should that become necessary.

In those circumstances, I have come to the conclusion, on the balance of probabilities, that Justin was not acting in self-defence and therefore would not have had the benefit of the defence for which s 418 provides. Rather, I conclude that given the unhinged nature of Justin’s conduct on the night and his failure to stop when told to do so, he was at least reckless as to the risk of creating an apprehension of violence. He was thus acting unlawfully in contravention of s 61. It is unnecessary therefore to determine whether he was also acting in contravention of s 11B. It follows that the State has established the defence provided by s 52 on the basis that Constable Fanning was acting in defence of Constable Kleinman in responding to Justin’s criminal act, being conduct contrary to s 61.

It is appropriate that I consider this question against the possibility that I am wrong in my finding that Justin’s actions amounted to criminal conduct. The starting point of statutory interpretation is a consideration of the words of the statute itself, having regard to the context in which the provision appears and its purpose: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 at [47] per Hayne, Heydon, Crennan and Kiefel JJ; SAS Trustee Corporation v Woolard [2014] NSWCA 75 at [58] per Bathurst CJ.

Justin submitted that, having regard to the heading to Pt 7, “unlawful” conduct within the meaning of s 52 was criminal conduct only. Although the heading of a Part is taken to be part of the Act: Interpretation Act 1987 (NSW) s 35, the heading to Pt 7 does not assist in the construction of the word “unlawful” in s 52. As the heading recognises, Pt 7 deals relevantly with two matters: first, the availability of self-defence in response to a claim for personal injury damages: see ss 51, 52 and 53; and secondly, a limitation on the award of damages for personal injury sustained in the course of or following criminal activity by the person claiming damages.

As a matter of ordinary English, the word “unlawful” means “contrary to law; prohibited by law; illegal”: Oxford English Dictionary. Whilst a crime is conduct that is contrary to law, the word “unlawful” is not so confined. It includes a civil wrong. Further, the context in which s 52 appears, namely, an Act relating to civil claims for personal injuries, also points to “unlawful” within the meaning of the section as including conduct which is tortious as well as criminal.

The language of s 52(2) points to the same conclusion. The subsection provides an exhaustive list of the circumstances which a defendant must believe exists in order to make out the defence, including “unlawful deprivation” of liberty: s 52(2)(b) and “unlawful taking, destruction, damage or interference” of or with property: s 52(2)(c). Such conduct may be either a civil wrong or a crime. Further, the specification of “criminal” trespass in s 52(2)(d) indicates that when the legislature intended to refer to criminal conduct only, it expressly did so. Indeed, there would be no need for the specification of “criminal” trespass in s 52(2)(d) if s 52 as a whole were confined to criminal conduct.

The State also pointed to the language of s 54 which uses the language of the criminal law in its reference to an “offence” in contradistinction to the use of the word “unlawful” in s 52. I agree that that is a further statutory indicator that the conduct to which s 52(1) refers is not confined to criminal conduct.

If “unlawful” as it appears in s 52 is understood to include conduct which is merely tortious, the question arises whether Justin’s conduct amounted to a trespass against the person, namely, a civil assault. That tort is, for relevant purposes, made out where an act of a person causes another person to reasonably apprehend a threat of force or violence: see Barton v Armstrong [1969] 2 NSWR 451 at 455.

The State submitted that Justin was at least negligent as to the commission of an assault, and that this was sufficient for assault to be made out. In other words, it was not necessary to establish that his conduct was intentional or reckless, as is required for the conduct to be criminal.

Commentary in Halsbury’s Laws of Australia at [415-335] states that there appears to be no decision where a negligent act has been relied upon as an assault. However, there is authority that a defendant will not be liable in trespass to the person unless the act was either intentional or negligent: see Venning v Chin (1974) 10 SASR 299 in which Bray CJ, at 310, accepted that the law had been so settled in Stanley v Powell [1891] 1 QB 86; McHale v Watson [1964] HCA 64; 111 CLR 384 at 387-388. See also Macpherson v Brown at 189

In Williams v Milotin [1957] HCA 83; 97 CLR 465 at 474, the Court stated that:

On the assumption that these authorities are good law, the State’s submission that Justin was committing a civil assault at the time he was shot should be accepted. Constable Kleinman, in her ERISP, said that she drew her Taser because she “thought [Justin] was about to assault myself or somebody”. In the context of the facts as I have considered they ought to be found, there is no question that this apprehension of violence was reasonable. Justin, in conducting himself as he did, as explained above, at [199], was at the very least negligent in the manner in which he conducted himself that created the apprehension of violence. It follows that s 52 applies also on the basis of Justin’s commission of a tort that was, for relevant purposes, unlawful. Ground 3 of the State’s appeal as against Justin is made out.

Before concluding on the question of self-defence, it should be noted that a question was raised in the course of the hearing, albeit somewhat in passing, as to whether there is any difference between the test for self-defence at common law and that provided by s 52. The immediate answer to that question is that s 3A(1) of the Civil Liability Act provides that “a provision of the Act that gives protection from civil liability does not limit protection from liability given by another provision or by another Act or law”. Accordingly, the common law of self-defence remains, just as does, for example, the protection afforded to police officers by s 230 of LEPRA.

It also needs to be said, even if by way of trite observation, that when the court is concerned with the application of a statutory provision, it is that provision, properly construed, that must be applied. Given the provisions of s 3A(1), s 52 does not purport to impinge on the common law and the common law is not be construed by reference to s 52. While, in this case, the two tests lead to the same result, they remain distinct, given the requirement of unlawfulness in s 52(1). There is no authority for the addition of that requirement to the common law test as stated by the High Court in Zecevic.

The State contended that, if it was unsuccessful in respect of its defence based on the Civil Liability Act, s 52, s 53 applied to preclude the award of damages. Section 53 provides as follows:

As I have found that the conduct of Constable Fanning was reasonable in the circumstances as he perceived them, s 53 does not apply and need not be considered.

The State also pleaded that that actions of Constable Fanning were protected by the defence of necessity. All parties accepted the availability of a defence of necessity to an action in trespass, in this case, trespass to the person. The trial judge, at [204], rejected that defence for the same reasons that he had rejected self-defence at common law and the statutory defence under the Civil Liability Act, s 52. I have dealt with the defence of necessity for completeness, although as I have concluded that the State has established self-defence it is strictly not necessary to do so. It should be noted that if I am wrong in respect of self-defence, then, as I explain below, the defence of necessity will also not be made out.

The State submitted, without demur from the respondents, that the defence is made out if there is an actual situation of imminent danger and the steps taken were reasonably necessary: see Balkin & Davis, Law of Torts, at [6.21]. It contended that for the same reasons as self-defence was made out, it had made out the defence of necessity.

There are surprisingly few local authorities that deal with this defence. The principles governing the defence were considered in some detail in Dehn v Attorney-General (1988) 2 NZLR 564, which concerned, relevantly, forcible entry into premises by police responding to information that a woman inside was in danger. Tipping J found that the officers’ conduct amounted to a trespass to land. His Honour rejected the defence of necessity as:

The following principles emerge from his Honour’s analysis of the case law at 577-580:

There is no suggestion in the authorities and no reason in principle why the defence should operate differently as between different forms of trespass: see, for example, Balkin & Davis, Law of Torts, which treats the principle as extending to both forms of trespass.

Dehn v Attorney General was referred to, with apparent approval, in State of New South Wales v Riley. In Riley the Court was concerned with whether the defence of necessity justified the actions of police who had detained the respondent. The respondent was thought to have discharged a firearm shortly prior to his arrest. The police also believed that he was mentally disturbed. At the time of his arrest, the respondent was handcuffed and placed in a police van. The respondent, who suffered a fractured wrist from the overly tight application of the handcuffs and also suffered psychological injury, claimed damages for assault, trespass to land (relating to police searches of his residence), false imprisonment and negligence.

Hodgson JA, with whom Sheller JA and Nicholas J agreed, held at [84]-[85] that even if necessity justified the initial arrest and the initial search of the premises (given the potential for another, possibly injured person to be inside), it did not justify a delay of at least forty or fifty minutes between the initial detention and the time at which a decision was made under the Mental Health Act 1900 (NSW) and regular procedures were applied, and it did not justify a second search of the premises about an hour after the initial detention.

The Court did not expressly adopt the test postulated by the State. However, the Court’s findings support that there must be a situation of immediate danger and the steps taken must be reasonably necessary for the defence of necessity to be made out.

In order for the defence to be available in this case, the State is required to demonstrate a state of imminent peril and that the steps taken were reasonable. The subjective belief of the defendant, and its basis on reasonable grounds, is not in issue here as it is for self-defence. It is clear from the authorities discussed in Dehn v Attorney General that it is not sufficient that the defendant perceived there to be a danger. Thus, in Cope v Sharpe (No 2), Buckley CJ observed, at 504

The first question for determination was whether there was a situation of imminent peril. That in turn requires a consideration of the circumstances at the time the decision to act was taken. The police had responded to a call in respect of a serious and dangerous home invasion in which it had been reported that a knife was involved. The whole incident, that is, from the time the police vehicle arrived in Holmes Street and the occurrence of the shooting, took less than two minutes. Constable Fanning described Justin’s demeanour as “crazy” and described how Justin was waving the steel rod around in a “threatening manner” and was “screaming out”. Justin described himself as “running around like a psycho”. Kayla said that when she heard Justin calling out “where’s my sister”, she was not sure that she actually got the words out that it was her brother running down the street. Although Georgia said that she called out “that’s my son” when the police officer drew his gun, the general reliability of her evidence was questionable.

In my opinion, Constable Fanning was presented with a situation of imminent peril, namely, in the circumstances and with the information described above, he encountered a person who was holding an implement in a threatening manner and who was running towards his fellow police officer, and who had failed to stop when directed to do so.

For the same reasons that I consider grounded the case in self-defence at common law, the steps taken by Constable Fanning in drawing his gun and then discharging it when Justin had come close to the group and had failed to stop were reasonable at the time they were taken. It is not to the point, as discussed in Cope v Sharpe (No 2), that after the event, the circumstances revealed themselves to be different from the imminent peril as it presented itself at the time. That difference here was that the person presenting in a dangerous manner was not one of the intruders. But even then, it could not be said that there was no imminent peril, given that Justin’s evidence was that he would have used the rod he was carrying and that he did not know at that time whether the intruders were still with his sister or not. It was not until Justin was shot that he realised that the people with his sister were police officers.

Accordingly, I consider that the State has made out the defence of necessity and ground 5 of its notice of appeal should be allowed.

It is not entirely clear whether the State independently relied upon s 230 of LEPRA as a defence to the claim or whether its case was bound up with its narrower argument developed by analogy with Crowley. The State’s submission was that:

The respondents submitted that s 230 was no different in terms from the defence of necessity. I do not accept this submission. The question pursuant to s 230 is whether the police action satisfied the statutory terms. The statute in terms does not refer to the requirement to prove that there was an imminent peril.

Neither party addressed the meaning of lawful conduct for the purposes of s 230. “Lawful”, when used in a statute, must take its meaning from the context in which it appears: Takikato v The Queen at 460 per Brennan CJ, Toohey, McHugh and Gummow JJ. It may mean something that is expressly authorised by the law or something which is not forbidden: Crafter v Kelly [1941] SASR 237 at 243, cited with approval in Taikato at 460. This reflects the ordinary meaning of the word: the Oxford English Dictionary defines lawful to mean “[a]ccording or not contrary to law, permitted by law”.

The meaning of “lawful” in s 230, in my opinion, is clear. The legislature has expressly made lawful what would or may otherwise be contrary to law, whether criminal or civil. Relevantly for present purposes, s 230 makes lawful action that would otherwise constitute a battery. If Constable Fanning’s conduct satisfied the terms of s 230, there was no battery.

This construction of s 230 reflects the policy which underlies policing, policing powers and, for that matter, the rationale for the common law operational immunity applied in Crowley where, at [271]-[273], the Court observed that a police officer’s duties are owed to the public at large and must be discharged even though there is a risk of injury to a suspect or even to an innocent bystander. The Court further commented, in the passage quoted above at [27], that the discharge of those duties must not be constrained by fear of liability.

It is also relevant to bear in mind that although in a particular case self-defence may be available in response to an allegation of battery, or a charge of assault, “the existence of a right of self-defence cannot be determined until after the fact”: Taikato at 463. If police were constrained to a justification of their actions by reference to self-defence, policing duties would become so circumscribed as to be rendered ineffective in a significant way.

For the reasons discussed above at [180]-[184] in relation to the State’s submission that Constable Fanning was acting in self-defence, I am of the opinion that the police officers’ actions were reasonably necessary and therefore lawful within the meaning of s 230. Lawful authorisation provides a complete defence to actions in trespass: Halliday v Nevill [1988] HCA 80; 155 CLR 1; Coco v R [1994] HCA 15; 179 CLR 427.

Should this matter have been squarely in issue, I would have allowed the appeal on that basis alone.

Kayla and Georgia brought their respective claims pursuant to the Law Reform (Miscellaneous Provisions) Act, s 4. That section provided, relevantly:

The State contended that s 4 does not apply to a case of an intentional tort, but is confined in its operation to a case where the “act, neglect or default” is an act, neglect, or default in breach of a duty to take reasonable care. The State submitted that this construction of s 4 was supported by reference to the shortcoming in the common law that the legislation was intended to remedy.

The genesis of the legislation was reviewed in Gifford v Strang Patrick [2003] HCA 33; 214 CLR 269 by McHugh J at [34]-[35]. As his Honour explained at [34], s 4 was a statutory response to the decision of the High Court in Chester v Waverley Corporation [1939] HCA 25; 62 CLR 1 and the decision of the House of Lords in Bourhill v Young [1943] AC 92. In Chester v Waverley Corporation, a claim for nervous shock brought by a mother who saw the dead body of her son in a council trench was rejected. In Bourhill v Young a claim by a woman who suffered nervous shock after hearing a motorcyclist collide with a motor vehicle was likewise rejected. At the time of its passage through Parliament, the Minister for Justice stated in the second reading speech that s 4 was “a statutory extension of liability to meet the position created by the decision in [Bourhill] v Young … [i]t creates no new substantive right of action”.

McHugh J further pointed out in Gifford v Strang Patrick, at [35], that when it was enacted, s 4 was viewed as a beneficial provision that expanded the ability of close family members to recover for nervous shock. As his Honour observed:

The application of s 4 had earlier been considered by the High Court in Scala v Mammolitti [1965] HCA 63; 114 CLR 153. In that case, the Court was concerned with an action for damages for nervous shock caused by a negligent act of the defendant by which the plaintiff’s husband had been injured.

Taylor J, with whose reasoning Barwick CJ and Windeyer J agreed, pointed out at 158, that s 4 was not predicated upon the existence of a liability to the primary victim. This was apparent, in his view, from the language of the section which included the circumstance that the primary victim was put in peril but did not sustain injury. That raised the question of what the extension was for which s 4 provided. That in turn, involved a consideration of the state of the law prior to the introduction of the section.

His Honour observed, at 159, that a liability for injury by way of nervous shock arose where such injury had been caused by a breach of duty to take reasonable care. This required that the injury be reasonably foreseeable. The liability arose because of the existence of an independent duty of care to the person who sustained the nervous shock and was not dependent upon the rights of the primary victim.

Taylor J then explained the nature of the extension of liability for which s 4 provided as follows:

Taylor J at 160, also stated that the position was the same for the other persons specified in s 4(1)(b). As his Honour stated:

Kitto J was also of the opinion that a claim under s 4 was not dependent upon proof of liability to the primary victim. His Honour stated, at 157:

His Honour further explained that the section had a clear and sensible meaning if the reference to “liability” to the primary victim meant liability in a general sense, that is:

Menzies J agreed, at 161, that a claim under s 4 was not dependent upon proof of liability to the primary victim although it was necessary for the claimant to prove “an act, neglect or default which was, when it occurred, wrongful in the sense that it was in breach of a duty owed to the person ‘killed, injured or put in peril’”. His Honour referred to the position where the primary victim was merely put in peril and not otherwise injured, such that a defendant was thereby not liable to compensate the primary victim. In such a case, his Honour considered that the section was “applicable when a person was put in peril by an act which, for instance, was in breach of a duty of care” (emphasis added).

Windeyer J, in agreeing with Taylor J, stated at 162 that insofar as it was necessary to construe s 4 for the purposes of that case, the section made it unnecessary for a member of the family to establish as the foundation of the claim that there was a foreseeable risk of harm to him or her, or that such harm was too remote. His Honour considered it implicit that “the act, neglect or default” that caused the death injury or peril to the initial victim “was in some sense wrongful” (emphasis added).

Windeyer J noted that an action brought by the initial victim or the legal representatives of that victim might fail for a variety of reasons including the existence of a release, satisfaction, the expiry of the limitation period or contributory negligence. However, as his Honour observed, at 162-163, “that would not mean that the conduct complained of was not wrongful. Or that action might fail simply because the plaintiff in it failed to prove his case”.

It is apparent, in my opinion, from the reasons of the Court in Scala v Mammolitti, that s 4 is not confined to a case of negligence. Although the members of the Court did not refer to s 4 being available where the conduct towards the primary victim constituted an intentional tort, it is apparent, from the references to “wrongful act” and to there being other circumstances where the primary liability may arise such as pursuant to contract, that the relief provided by the section is not so confined.

It follows that I would reject ground 1 of the State’s draft notice of appeal as against Georgia and ground 1 of the State’s notice of appeal as against Kayla. However, as on the conclusion I have reached on liability in Justin’s case there was no “wrongful act”, no liability arose under s 4.

Georgia and Kayla each sought leave to file and to rely upon a notice of contention in the following terms:

Georgia and Kayla contended that they each have a cause of action in damages independent of any action under s 4, in accordance with the decision in Johnson v The Commonwealth (1927) 27 SR (NSW) 133 at 136-137. They contended that the elements of the cause of action “appear[ed] to be as follows”:

It is implied in this formulation that there must be a duty of care owed to Georgia and Kayla.

This case was not pleaded nor run at trial. Nonetheless, Georgia and Kayla submitted that the cause of action identified in Johnson did not give rise to any matter of fact or pleading additional to that run at trial beyond the absence of the words “or at Common Law” to the heading in the existing pleadings above para (16) in Georgia’s further amended statement of claim and above para (17) in Kayla’s further amended statement of claim.

The pleadings in Georgia’s case (which, but for a difference in paragraph numbering were relevantly identical to those in Kayla’s case) were as follows:

The State opposed the grant of leave. It contended that there is no distinct tort established by Johnson and that the pleadings were insufficient to establish any such cause of action. The State also referred to the concession by the respondents’ counsel during the hearing of the appeal on 19 September 2014 that if something additional to what was presently pleaded was to be raised, additional evidence was required, and leave should not be granted to run the proposed new case on appeal. The State further submitted that Georgia and Kayla would require further evidence to make out any such cause of action and the State would have produced additional evidence in response at trial.

I would refuse Georgia and Kayla leave to rely on the proposed notice of contention. I consider that the pleading in paras (16)-(18) in Georgia’s further amended statement of claim (paras (17)-(19) in Kayla’s further amended statement of claim) was not sufficient to plead a cause of action as is now sought to be agitated. There is no pleading of duty owed to Georgia or Kayla which, as the respondents’ submissions implicitly recognise, is a necessary element of the cause of action upon which they seek to rely.

Further, there were both legal and factual questions that were not explored at trial. Although the existence of a duty of care raises a legal question: Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at [62], both its existence and content depends upon the factual circumstances in which the duty is said to arise: State of NSW v Spearpoint at [23]. This includes the relationship between the parties, the class of persons of which the plaintiff is a member and the kind of damage suffered. However, as Hayne J observed in Modbury Triangle Shopping Centre v Anzil [2000] HCA 61; 205 CLR 254 at [104], “[e]ven that, however, may not suffice in some cases”.

In their proposed notice of contention, Georgia and Kayla allege that their relationship as members of Justin’s family constitute the source of the duty. However, it is difficult to see that the nature of the relationship, although being relevant to the existence of the duty of care, of itself resolves the issue of the content of the duty or even the circumstances in which such a duty would arise. For example, is it necessary, for a duty of care to arise as alleged, that the defendant know what the relationship is between the victim and the plaintiffs? Is it sufficient that the defendant ought to have known? Is it an aspect of the duty, in circumstances such as the present, that a police officer should make an enquiry before deciding whether preventative of protective action should be taken? Is it relevant to the content of the duty that the police officers were seeking to protect Georgia and Kayla from the person running down the street? These questions were not addressed at first instance, nor was evidence strictly directed to them.

It should be noted that there was evidence that would almost self-evidently have been called if the cause of action for which Georgia and Kayla now contend was raised at trial. In particular, it is likely that the State would have called, or at least given consideration to adducing, evidence of police procedures. As it was, the only evidence of police procedures was that the safe distance to be maintained between a suspect and a police officer was 7 m.

There is also the question, should the duty exist as alleged, whether there was a breach of that duty. Breach, of course, is a factual question: Vairy v Wyong Shire Council at [2], [21], [70]-[74] and [105]. As I have indicated in the preceding paragraph, there were various factual matters that were not explored which were relevant to the content of the duty of care. These matters were correspondingly relevant to the factual question of breach.

Importantly, except in the specific circumstances discussed in University of Wollongong v Metwally (No 2) [1985] HCA 28; 60 ALR 68 at 71 and Coulton v Holcombe [1986] HCA 33; 162 CLR 1, an appeal is not the forum in which a case not run at trial may be advanced for the first time. This is particularly so where factual questions are involved, or at least, may need to be explored. The reasons for the insistence on this principle are well-established. In University of Wollongong v Metwally at 71, the High Court stated:

This statement was endorsed by the High Court in Coulton v Holcombe at 8. In that case, the High Court also approved the statement of the Court of Appeal in Holcombe v Coulton (Court of Appeal (NSW), 25 June 1985, unreported), where the nature of the public interest which underlay the principle was articulated as including the following factors:

Even where the facts have been established beyond controversy, the appellate court may still consider that it is not in the interests of justice to permit the new point to be argued: see Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631. The determination of the interests of justice will require the consideration of those matters that the High Court has considered fundamental and to which reference was made in University of Wollongong v Metwally (No 2) and in Coulton v Holcombe.

Further, as this Court pointed out in Bibby Financial Services Australia Pty Ltd Sharma [2014] NSWCA 37 at [10]

For these reasons, I consider that leave ought not to be granted to rely upon the proposed notices of contention.

But in any event, I do not consider that Johnson is authority for the existence of an independent cause of action or that, on the facts as I consider they ought to be determined, that any such cause of action has been made out. It is necessary to refer to Johnson in some detail to explain why this is so. In Johnson, the defendant had demurred to the plaintiff’s pleading that she had suffered mental anguish by reason of acts done in her presence to a third party not causing any apprehension of danger to herself, but contended that the pleading disclosed no cause of action.

The facts admitted by the demurrer were that the plaintiff’s husband had been assaulted by the defendants in her presence and that the defendants had forcibly removed him and kept him imprisoned for a long time. It was also admitted for the purposes of the demurrer that this was done wrongfully, wilfully and maliciously, whereby she had suffered mental anguish and had become physically ill.

Ferguson J, delivering the judgment of the Court (Street CJ, Gordon and Ferguson JJ), stated, at 135-136:

Ferguson J next referred to Janvier v Sweeney [1919] 2 KB 316, where a plaintiff recovered damages for physical injury resulting from nervous shock caused to her by false statements maliciously made to her by the defendants. In Janvier v Sweeney, Bankes LJ cited with approval the passage of Phillimore J in Dulieu v White [1901] 2 KB 669 that:

Ferguson J observed that these principles were applied in Hambrook v Stokes Brothers [1925] 1 KB 141 where a plaintiff suffered nervous shock and became ill and died after having seen a lorry career down an incline towards her children. The lorry had been left negligently unattended.

Ferguson J further stated, at 136-137:

The State submitted that Johnson should either be considered as an application of the Wilkinson v Downton tort, specific reference being made to that decision, or as an early example of the recovery of damages for nervous shock in what would now be considered the tort of negligence. It pointed out that the reference in Johnson to Hambrook v Stokes Bros, a negligence case, pointed in that direction. The State submitted, however, that there has been nearly a century of development in respect of liability for nervous shock since Johnson was decided.

For my part, I do not consider, at this point in the development of the law of tort, that Johnson ought to be recognised as authority for the existence of an independent tort for nervous shock, not dependent on the plaintiff also suffering physical injury. I agree with the State’s submission that the law as to nervous shock has since been developed by the High Court commencing, relevantly, with its decision in Jaensch v Coffey [1984] HCA 52; 155 CLR 549 and that is the law that is to be applied. I also agree that Johnson appears to have been grappling at an early stage with the circumstances in which psychological damage would be recognised as being compensable. In doing so, it appears not to have navigated a clear passage through the underlying principles of negligence and, for example, the principles laid down in Wilkinson v Downton. In Magill v Magill [2006] HCA 51; 226 CLR 551 Gleeson CJ at [20] commented that that the line of cases in which that decision has been applied ought now be considered within the law of negligence or intentional infliction of personal injury: see also Nationwide News v Naidu [2007] NSWCA 377 at [71]-[73]. In Monis v The Queen; Droudis v The Queen [2013] HCA 4; 249 CLR 92 at [223], Hayne J, after referring to “what was long regarded as the separate test in Wilkinson v Downton for deliberate infliction of ‘nervous shock’”, noted that “[w]hether or to what extent such a separate tort is still to be recognised need not be examined”.

Further, even assuming the existence of such a cause of action, I consider that Georgia and Kayla have not established that the actions of Constable Fanning were wrongful, given that, on the evidence, I have concluded that he was acting in self-defence. Finally, there may also be a question whether the principle of ‘operational immunity’ would apply to such a tort, or whether s 230 would otherwise apply such that Constable Fanning’s conduct was lawful, the State would thereby not be liable.

Given my findings in respect of liability, it is not strictly necessary that I address the question of damages. However, it is appropriate that I do so in the alternative lest I be wrong, as a number of substantial issues were raised.

The trial judge awarded Justin damages in a total sum of $512,450, including $175,000 by way of general damages, $200,000 for future loss of earning capacity, $25,000 aggravated damages and $50,000 exemplary damages. Each of these awards is challenged on the appeal. Damages in the sum of $25,950 for past and future medical expenses, $27,300 for past loss of wages were also awarded by the trial judge. Those sums are not disputed on the appeal.

The sum of $175,000 awarded for general damages included compensation for pain and suffering in relation to Justin’s physical injuries and post traumatic stress disorder (PTSD). At [228], his Honour held that:

Dr John Roberts, psychiatrist, examined Justin on 12 March 2015. He noted that Justin had reported experiencing physical symptoms including stomach pains when eating and psychological symptoms including paranoia when leaving the house and “heightened anxiety of inappropriate degree”. Justin had reported feeling “shaky, weepy and scared on seeing police officers”. Dr Roberts provided the following diagnosis:

Dr Roberts considered that Justin’s condition had not stabilised and that there was a one in three probability that even in spite of optimal treatment the symptoms of PTSD would not be abolished in their entirety.

A report from Dr Doron Samuell, psychiatrist, who saw Justin on 14 March 2013, was also in evidence. Dr Samuell reported that he accepted that “the entire evening would have been highly distressing for [Justin]”. He noted that “[Justin] was undoubtedly in a state of shock and panic when he confronted the assailants. It would have been additionally shocking once he was shot”. However, Dr Samuell considered that, by the time of his consultation with Justin, he was not suffering from any psychiatric condition and that he had “recovered well following that traumatic evening”.

The trial judge, at [219], noted that the full extent of the dispute between the reports of Dr Roberts and Dr Samuell was whether Justin’s PTSD was continuing or not. His Honour found that the PTSD had diminished over time and would continue to do so. That finding was not challenged on appeal.

Dr Christopher Vickers, gastroenterologist and hepatologist, examined Justin on 21 September 2012. Dr Vickers reported that, following the incident, Justin had undergone two mid-line laparotomies for the removal of the bullet and repair of the small intestine and colon. He reported that Justin had continuing disabilities including with eating and digestion, cold sensitivity, pain on deep breathing and panic disorders. At trial, Justin gave evidence of continued difficulties eating. He said that he still experienced pain, though it was not as severe as it had been and was no longer present all the time. He said that he experienced nightmares, though again not as often as previously.

The State contended that the trial judge was in error in failing to make an adjustment to Justin’s award of general damages to reflect the fact that, as it contended, “the substantial part” of Justin’s PTSD and distress was caused by the home invasion rather than the shooting.

Justin contended that the Court would only rarely interfere with an award of general damages, and that there was evidence of a multiplicity of enduring symptoms resulting from the shooting such that the award of $175,000 was appropriate or at least not impermissibly excessive. He contended that there was no evidence available to show that the mental harm he suffered was caused by the trauma associated with the home invasion, rather than the shooting.

The test for appellate intervention in an award of general damages was stated by Mason J in Wilson v Peisley (1975) 50 ALJR 207 at 214 as follows:

Mason J also phrased the question, at 214, as being whether the decision fell within “the appropriate limits of a sound discretionary judgment”. Thus phrased, it is clear that the test is little different from that in House v The King [1936] HCA 40; 55 CLR 499 at 505: Costa and Another v The Public Trustee of NSW [2008] NSWCA 223 per Ipp JA at [38].

Neither of the psychiatric reports contains any clear findings as to the degree to which Justin’s PTSD was caused by the home invasion or by the shooting. To some extent, any attempt to separate the two is artificial; it can be inferred from Dr Samuell’s evidence that the psychological trauma of the shooting was in part a result of the traumatic context of the home invasion in which it occurred. However, it was only the shooting that resulted in physical harm and ongoing pain. It cannot be doubted the shooting was an extremely traumatic event. In that context, the trial judge’s finding, at [228], that the impact of the home invasion was not so as to result in a significant discount in the general damages sum was “within the appropriate limits of a sound discretionary judgment”.

Given the physical pain and suffering resulting from the shooting, Justin’s ongoing physical complications, his prolonged hospitalisation and his PTSD, I do not regard the sum awarded by the trial judge as inordinately high. The trial judge’s reasoning disclosed no error of law or misapprehension of the facts. I would dismiss ground 6 of the State’s appeal.

The trial judge awarded $200,000 for future loss of earning capacity by way of a “buffer”. His Honour cited the statement of Heydon JA (with whom Mason P and Handley JA relevantly agreed) in State of New South Wales v Moss (2000) 54 NSWLR 536 at [87] that:

In Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; 172 IR 453, at [84], McColl JA, with whom Mason P and I agreed, described such an award in the following terms:

Justin left high school in Year 12 before completing the Higher School Certificate. He obtained some casual labouring work from time to time and from September 2010 commenced employment on a casual basis at Mario’s Pastizzi, where his primary duties were packing pastries into bags.

Following the shooting, on 28 November 2011, Justin returned to work at Mario’s Pastizzi on a casual basis. He gave evidence that he left that job because he could not undertake the heavy lifting involved, although his partner Jasmin gave evidence that he left because of a comment made by a fellow worker. Since leaving that job, Justin had also undertaken work experience as a fencer with his brother and done some volunteer work for a windscreen company. He had also done “a little tiny bit of roof tiling”. He had a 15 kg weight limit imposed upon him and suffered pain and tiredness following work.

The trial judge, at [228], found that, post-accident, Justin was incapable of anything other than light hands-on work. His Honour found, at [234], that Justin had a long work history in front of him in which he would be forced to compete with able bodied persons for unskilled positions, and the buffer required to adequately compensate him for loss of earning capacity was therefore substantial.

The trial judge noted that this was not a case in which a strict mathematical approach should be taken to the assessment of future economic loss. His Honour’s reasoning that led him to award the sum of $200,000 was, at [230], as follows:

The State contended that the trial judge erred in reaching this figure. It submitted that while an award for future economic loss was not an exercise in mathematical precision, the amount awarded needed to bear some relation to the evidence and the primary judge needed to provide reasons for the assessment. The State pointed out that the award equated to a complete loss of earning capacity (taking earning capacity at $350 per week) with a discount of 45 per cent for vicissitudes, or a 50 per cent loss of earning capacity with a discount of 15 per cent for vicissitudes. It submitted that an appropriate buffer would have reflected a loss of earning capacity of no more than 50 per cent and a discount for vicissitudes in the order of 50 per cent given Justin’s work history, giving a total buffer of $100,000.

I see no error in the trial judge’s assessment of Justin’s loss of earning capacity. A pre-accident earning capacity reflected in an annual income of less than $20,000 reflects a conservative assessment by the trial judge of that earning capacity. An assessment that he retained half that capacity is again a conservative assessment of his post-accident earning capacity. Although the assessment of earning capacity has to be based in the evidence, it is nonetheless an evaluative task on which minds might differ. The shooting has left Justin with continuing ongoing physical and psychological problems. The limitation on his lifting capacity is also an inhibiting factor on his earning capacity. Accordingly, I would reject this ground of the State’s appeal.

In Lamb v Cotongo [1987] HCA 47; 164 CLR 1 at 8, the High Court (Mason CJ, Brennan, Deane, Dawson and Gaudron JJ) described exemplary and aggravated damages as follows:

Aggravated damages, being compensatory, are assessed from the point of view of the party who is wronged: New South Wales v Ibbett at [34]; State of New South Wales v Zreika [2012] NSWCA 37 at [60].

In considering aggravated damages, the trial judge quoted the following passage from Luntz, Assessment of damages for personal injury and death, 4th ed at [1.7.10]:

At [242], his Honour found the State liable for aggravated damages as follows:

The State contended that the trial judge’s reference, at [242], to the “deliberate and unjustifiable conduct” of Constable Fanning was unclear. If it was intended to convey only that Constable Fanning’s conduct was intentional, it provided no basis for aggravated damages. If, however, the trial judge intended to convey that Constable Fanning acted in the knowledge that what he was doing was wrong, that finding was not open on the evidence and was not otherwise found in the judgment.

As aggravated damages are assessed from the point of view of the wronged party, Constable Fanning’s state of mind is in any case only relevant to the extent that it altered the effect of the tort on Justin. It is difficult to see it as a factor militating in favour of aggravated damages in this case. It is also difficult to see the characterisation of the shooting as “unjustifiable” as an aggravating factor in circumstances in which, even if self-defence were not made out, the wrongful act was done without intent to do wrong, during the heat of a particularly stressful moment and in circumstances where the police officers were at the scene of a crime and did not know that Justin was not one of the intruders.

There are two circumstances that point toward the award of aggravated damages in this case. The first is the trauma associated with the wrong being committed by a police officer, who should have been a source of safety and assistance to Justin and his family but instead caused serious injury. Justin’s evidence of an ongoing fear of police officers should be noted in this context. The second is the occurrence of the shooting in the context of the already highly traumatic circumstance of the home invasion. However, the other circumstances of the shooting, including those described in the paragraph above, militate strongly against the award of aggravated damages. On balance, I consider that the trial judge erred in awarding aggravated damages, even if, as I have said, contrary to my finding, self-defence is not made out.

The principles governing the award of exemplary damages was considered in Gray v Motor Accident Commission [1998] HCA 70; 196 CLR 1. There, the Court stated, at [14], that:

In awarding exemplary damages, the trial judge referred to the statement of Hodgson JA (Sheller JA and Nicholas J agreeing) in New South Wales v Riley at [141], that the use of excessive force by police officers causing injury to a person being arrested was “a most serious matter”, and noted that it was only more serious in circumstances in which the injured person was not arrested. That may be accepted, but Hodgson JA in that case refused an award of exemplary damages, and his Honour’s statement at [141] should be read in context, as follows:

In the present case, the trial judge found, at [246], that the conduct of Constable Fanning in shooting Justin was “carried out in contumelious disregard for [Justin’s] rights”. His Honour observed that Constable Fanning had limited his available options by drawing his pistol from the moment he saw Justin, notwithstanding the short time that he had been on the scene. In the context that, as his Honour found, Justin was not a direct threat to Constable Fanning or Constable Kleinman, Constable Fanning’s act was “entirely disproportionate to any risk to the Police”. His Honour held that, in those circumstances, “an award of exemplary damages should be made to deter such conduct from reoccurring”.

Justin contended that this finding should be upheld on the basis that the shooting was intentional, unreasonable, unnecessary, justified wrongly on the basis that Justin did not stop, and justified by Constable Fanning by a post-event reconstruction.

The State submitted that, even if liability were made out, there were no findings such as could establish malice or conscious or deliberate disregard for Justin’s rights, and that this was not a case of high-handed, outrageous or contemptuous conduct. It drew an analogy with Hodgson JA’s refusal to award exemplary damages in State of New South Wales v Riley.

The State’s submissions should be accepted. In my opinion, his Honour erred in awarding exemplary damages. As in Riley, Constable Fanning was faced with a difficult and dangerous decision which he made without malice and, reasonably or otherwise, out of concern for the safety of himself and others. Justin’s submissions do not go to the purposes for which exemplary damages are awarded. Accordingly, I would allow grounds 9 and 10 of the State’s appeal.

The trial judge awarded total damages of $89,910 to Georgia, comprising $85,000 in general damages plus interest and past and future treatment expenses.

The events of the home invasion as they related to Georgia were not disputed on appeal. His Honour found, at [58], that she was:

Georgia was able to escape and hide when Kayla approached the men. She could subsequently hear Kayla screaming and on two occasions tried to go to her assistance but froze. Georgia’s evidence as to the shooting is outlined above at [104]-[110]. She also gave evidence about the aftermath of the shooting, including that she was “in shock that he got shot” and that she saw “[b]lood coming out of him and all of his intestines”.

Georgia was examined by Dr Roberts on 28 February 2012. Dr Roberts found that:

Georgia was also examined by Dr Samuell on 1 Febuary 2013. At that time, she was found to be suffering from “mild to moderate” PTSD. Dr Samuell reported that:

The trial judge noted, at [253], that the divergence of opinion between Dr Roberts and Dr Samuell was the extent to which the shooting of Justin added to the psychological harm caused to Georgia. His Honour found, at [256], that:

The State submitted that it was not open, given the evidence of Dr Samuell, for the trial judge to conclude that the home invasion and the shooting contributed equally to Georgia’s PTSD.

Georgia contended that this finding was available and that the State failed to take into account the advantage the trial judge had in assessing her evidence about the violence she witnessed and the trauma she suffered as a result. She pointed out that the “harrowing” video and sound recording of the aftermath of the incident was not available to Dr Samuell. In the context of the competing medical reports, Georgia contended that it was open to the trial judge to find that the home invasion and the shooting contributed equally to Georgia’s PTSD and his Honour’s determination in that regard should be accepted.

The State also contended that the award of $85,000 by way of general damages was manifestly excessive. It submitted that it was implicit in the finding that the home invasion and the shooting contributed equally to Georgia’s PTSD that, were it not for the contribution of the home invasion, his Honour would have made an award of $170,000 in general damages. This amount was said to be manifestly excessive by comparison with the award to Justin of $175,000 in the circumstance that Justin had been shot and suffered from ongoing physical disabilities, as well as PTSD. It was also said to be excessive given that Georgia sought minimal treatment in relation to her PTSD.

Georgia contended that the State’s comparison with the award to Justin was contrary to the doctrine against comparing cases in order to formulate an appropriate standard or sum for general damages: Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; 119 CLR 118 and that the award of general damages involved a discretion to which appellate courts give some allowance for having seen and heard the witnesses: see above at [286]-[287]. In reply, the State contended that the doctrine in Planet Fisheries Pty Ltd v La Rosa applied only to comparisons between disparate cases, and not to the situation of findings of mental harm made by the primary judge in three proceedings heard together, arising out of the same facts, and addressed in one judgment.

In Planet Fisheries Pty Ltd v La Rosa, Barwick CJ, Kitto and Menzies JJ held, at 124-125, that the determination of an award of damages:

The State is correct that Planet Fisheries Pty Ltd v La Rosa related to comparisons made between wholly different cases and it does not apply in the present situation. Behind the principle in Planet Fisheries Pty Ltd v La Rosa lies the basic proposition that each case turns on its own facts, such that simple comparisons between awards in different cases are likely to mislead. As was noted in Planet Fisheries Pty Ltd v La Rosa, at 125, the judicial task is to determine “that the amount of damages must be fair and reasonable compensation for the injuries received and the disabilities caused”.

In the present case, the trial judge was required to deal with a set of circumstances that was common to the three plaintiffs save for the role each had in the events of the night and the harm each individually suffered. Justin’s injuries were more extensive and more serious than Georgia’s injuries as are his ongoing disabilities. The trial judge allowed only a minimal discount for the effect of the invasion as opposed to the shooting. Thus, although each case is to be determined by reference to its specific facts, there seems something oddly disproportionate in the damages awarded to Georgia as opposed to the award of general damages for Justin. Even it is impermissible to directly compare the two verdicts, the disproportion is such that it is apparent that the award in favour of Georgia was “unreasonable or plainly unjust” such that “the appellate court may infer there has been a failure to properly exercise the discretion which the law reposes in the court of first instance”: House v The King at 505.

In this case, even if is accepted that Georgia’s ongoing PTSD was more severe than Justin’s, the overall award is too high by comparison and too high to reasonably reflect the harm caused. Given the degree of her injuries, and the finding that they were caused equally by the home invasion and the shooting, I would regard a more appropriate award as being $60,000.

The trial judge awarded Kayla total damages of $132,430, comprising general damages of $80,000, $46,000 for past loss of wages and smaller sums for interest and treatment expenses.

His Honour outlined Kayla’s experience of the home invasion at [36]. It was undoubtedly horrific. When she confronted the intruders, a knife was put to her throat and she was forced to search her mother’s room for money. She witnessed a knife put to her baby brother’s throat. She was then told that two of the men were going to rape her and a knife was placed between her legs on her inner thigh. She escaped and ran to the police car and witnessed the shooting of her brother. It seems the attackers also became aware of the police presence and decamped when it arrived and witnessed the shooting of her brother. Kayla’s evidence of the shooting is outlined above at [101]-[ 103]. She gave evidence that after the shooting she saw “a little bit of blood” on Justin and that she felt shock and fear.

Kayla saw Ms Shirin Steev, psychologist, on three occasions in November and December 2011. In a report dated 1 March 2012, Ms Steev stated that Kayla had been suffering PTSD “as a result of the home invasion and assault on 26 September”, but her prognosis was unknown as she had declined to continue treatment. Kayla did not return for treatment with Ms Steev or seek any other treatment.

Kayla was examined by Dr Roberts on 30 August 2012. He reported that Kayla presented “in a manner classical of PTSD”. As to causation, he found that:

Kayla was examined by Dr Samuell on 25 March 2013. He found that at that time her prognosis was excellent and that if she had been suffering from any psychological condition she was no longer doing so.

The trial judge considered there was little dispute on the medical evidence that Kayla had suffered PTSD as a result of the incident. His Honour found, at at [269], that “[Kayla] did suffer a post-traumatic stress disorder following the incident, and that a major component of that related to the shooting of her brother Justin”. His Honour also observed that Kayla had presented as a “most stoical person who was doing her best to put behind her what was a most violent and traumatic event”. These statements would appear to reflect an acceptance of the view of Dr Samuell that Kayla was no longer suffering from the condition.

The State contended that the trial judge’s reference to the shooting amounting to “major component” of the PTSD could at most be read as a finding that the shooting and the assault contributed equally to the condition. In that context, they contended that the sum was excessive by comparison with the sum awarded to Georgia, who suffered more severe ongoing PTSD. It contended that an appropriate award was in the order of $25,000.

Kayla contended that the State’s submission did not address the evidence she gave relating to her experience of the shooting, or that of the recording of the aftermath of the shooting. She also made the same submission relating to the impermissibility of comparisons pursuant to Planet Fisheries v La Rosa as was made by Georgia: see above at [320]-[322].

It is difficult to know what his Honour meant by the shooting of Kayla’s brother being a “major component” of her PTSD. Kayla was subjected to more significant trauma than Georgia during the invasion and it is difficult to see that it would not have had a major impact upon her. Nonetheless, different people react to stress and trauma in different ways and on his Honour’s finding, Kayla had done her best to put the events of the night behind her. The question for this Court, however, is whether the trial judge erred in awarding general damages for a condition that had resolved or had at least significantly resolved.

Once the question is posed in those terms, and given that some portion at least of the PTSD that Kayla suffered was attributable to what she encountered in the home invasion, I consider that an award of $80,000 for an injury which was limited or at least substantially limited in its ongoing effects to a period of less than two years was excessive.

In my opinion, an appropriate award for general damages is $40,000.

The trial judge’s finding on past loss of wages, at [270], was as follows:

His Honour found, at [268], that the reason Kayla was scared to go back to work was because of a fear that the perpetrators of the home invasion would come back and harm her and members of her family.

The State contended that, given the finding at [268] related only to the home invasion, causation with respect to the shooting was not established. Kayla contended that it was implicit from the trial judge’s findings that Kayla’s inability to return to work following the September 26 incident was materially contributed to by the events of the evening, including, “mainly”, witnessing the shooting. She submitted that, if the home invasion was a second cause resulting in the loss of wages, the State was “required to do the disentangling and to exclude the operation of the [wrongful conduct] as a contributory cause”: Watts v Rake [1960] HCA 58;108 CLR 158 at 160 per Dixon CJ.

Watts v Rake was a case concerning, relevantly, injury tortiously caused to a plaintiff who was already disabled. At 160, on the question of the onus of proving that the plaintiff’s injury was caused by the tort, Dixon CJ held that:

The effect of the principle outlined in Watts v Rake in a case such as the present was outlined in the concurring judgment of Windeyer J in Purkess v Crittenden [1965] HCA 34; 114 CLR 164 at 171, as follows:

Shortly put, there is an evidentiary onus on defendant claiming that the harm to the defendant had a cause unrelated to the wrong to bring evidence such as could establish that cause and its relative effect on the injury. In the present case, it was up to Kayla to demonstrate in the ordinary way that the shooting was causally related to the past loss of wages and, that being done, it was for the State to bring evidence such as could establish the role of the home invasion in also causing the loss and, pursuant to Watts v Rake, to disentangle its effects from those of the shooting.

Kayla was asked about the cause of her unemployment in cross-examination, as follows:

Given that exchange, which notwithstanding the final answer quoted, I would regard as somewhat equivocal, and the medical evidence underlying the finding at [269] that Kayla’s PTSD was causally related to both the shooting and the home invasion, I find that evidence was available such as to give rise to an inference that Kayla’s unemployment in the period before the trial was causally linked to both the home invasion and the shooting. I do not understand his Honour’s statement at [268], when read with [269], to have found that fear of the perpetrators was the exclusive cause of Kayla not seeking employment in the relevant period.

It follows that the State’s submission that causation was not made out for the award of damages for past loss of wages to Kayla should be rejected. In the absence of any clear submission to the effect that the shooting and the home invasion caused separate harm for which damage could be apportioned, and in accordance with the principle in Chapman v Hearse [1961] HCA 46; 106 CLR 112, the trial judge did not err in awarding damages for past wage loss. The State did not contend that that loss should be limited to point at which Dr Samuell considered that Kayla had made “an excellent recovery”, that is, by March 2013. Had the matter been argued, I would have considered that that was the appropriate time to which past wage loss ought to have been awarded.

It follows from the conclusions I have reached that the State’s appeals must be allowed. Whilst the State did not succeed on ground 1 of its appeal as against Justin, I consider that its overall success is such that the respondents ought to pay the entire costs of the appeal. To the extent that Justin and Kayla had success on their damages claims my reasons in that regard have only been given should I not be correct in the conclusion I have reached on liability.

In ordering costs against the respondents, I have not sought to determine any proportion each respondent ought to bear. However, in the usual way, the respondents are at liberty to apply for some other costs order either as against the State or as between themselves pursuant to the Uniform Civil Procedure Rules 2005 (NSW), r 36.16(3A).

I propose the following orders:

McCOLL JA: I have had the benefit of reading Beazley P’s reasons in draft. I agree with her Honour that the State’s appeals in each case should be allowed and with the orders she proposes.

I agree with Beazley P’s reasons for concluding that the State’s challenge to the primary judge’s findings of fact at [177](11), (13), (18) and [178], [199] and [203], each of which was in my view were critical to his Honour’s finding in favour of the respondents, should be accepted. [1]

In my view the findings the State challenged were contrary to compelling inference. Part of the reason for that, stems from the primary judge’s erroneous conclusion that at the time of the critical incident, “both Constable Fanning and Constable Kleinman were standing towards the western gutter of Holmes Street”. It is common ground that that finding was erroneous and that, in fact the two police officers were standing on the eastern side of the street. It was accepted that, in that position Constable Fanning was in front of, and to the left of Constable Kleinman. [2]

As Beazley P has said, the respondents submitted that that this, in effect, was an immaterial slip on his Honour’s part which did not impact upon his Honour’s appreciation of the dynamics of the situation, in particular the position of the participants vis-à-vis each other. However, in my view that conclusion is not open. It is apparent that his Honour’s erroneous finding impacted on the challenged finding, that “Justin McMaster ran down the middle of Holmes Street [and] was at no time running towards either Constable Fanning or Constable Kleinman.” [3]

Once it accepted, as all parties do, that the police officers were standing towards the eastern gutter of Holmes Street, the dynamics of the situation changed. Even if Justin McMaster only ran down the middle of Holmes Street, nevertheless, because Constable Kleinman was positioned more towards the centre of the road than Constable Fanning and, too, behind the latter, the situation was that Constable Fanning was entitled to perceive that Justin McMaster posed a potential threat particularly to Constable Kleinman. This was especially so in circumstances where he could not see what she was doing [4] and was unable to determine whether she had been able to, or was about to, discharge her Taser. [5]

It is also significant that the primary judge erred in finding that Constable Fanning discharged his service pistol “when Justin McMaster was about 5 metres away.” [6] That finding involved his Honour accepting the evidence of Georgia Karakizos as opposed to that of both police officers and that of Kayla McMaster and Jasmin Potts as to Justin’s distance from the police officers when the shot was fired. As Beazley P has demonstrated, Georgia’s evidence was inherently unreliable. Contrary to the primary judge’s finding, his Honour ought, as the State contended, have found that Justin was between 2 to 4 metres away from Constable Fanning when he discharged his firearm.

Once the position of the prime players is oriented correctly, it is manifest that, contrary to the primary judge’s finding, at the time Justin was shot he posed a threat to Constable Kleinman. Accordingly, it is a compelling inference that Constable Fanning shot Justin because he reasonably believed it was necessary to do so to defend Constable Kleinman from the threat Justin posed.

In my view the primary judge’s findings were contrary to the evidence as Beazley P has explained and, further, contrary to compelling inference.

The foregoing remarks are in addition to the reasons Beazley P has given to allow the appeal.

I would not, however, express any view about the proper operation of s 230 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). The State referred to that provision briefly in its written submissions and, orally, mentioned it in passing, but suggested that, in any event, it probably did not change things very much. The respondents mentioned it only to contend that it was contrary to the findings of fact. Absent any argument about the proper operation of the provision, I would refrain from expressing any view about it.

I otherwise agree with Beazley P’s reasons.

MEAGHER JA: I agree with Beazley P that each of these appeals should be allowed. Subject to what follows I agree with her Honour’s reasons in support of those conclusions.

In its appeal from the judgment in favour of Justin McMaster, the State by ground 1 of the amended notice of appeal raised the question whether at common law a police officer is excused from liability for a battery that is committed whilst attempting to prevent a breach of the peace and on the basis of an honest and reasonable belief as to the necessity for that action. As her Honour records at [31], this was a much narrower proposition of the circumstances in which police officers were said to be excused from liability than that contained in the original notice of appeal. That being so, it is not necessary or appropriate to address that broader immunity defence. Nor is it necessary to consider whether s 230 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) provided an independent statutory justification for what otherwise was an actionable battery. That argument was not developed. It is not the subject of any ground of appeal and it is not necessary to resolve that question in order to determine the appeal.

I agree with her Honour’s conclusions in respect of the challenges to the primary judge’s findings of fact. To succeed on ground 4 it was necessary for the State to establish that Constable Fanning believed that it was necessary to shoot the man later identified as Justin McMaster in order to prevent serious injury to Constable Kleinman and that he had reasonable grounds for that belief. That question of reasonableness directs attention, in particular, to the necessity for the Constable to adopt what in most circumstances would plainly be a disproportionate response to a threat of injury. Because of the significance of this question I should record my own reasons for agreeing with Beazley P’s conclusion that this defence is made out, while also taking account of the further findings of fact made by her Honour.

Holmes Street, where the incident occurred, runs in a north-south direction towards Neville Street. Nos 4, 6 and 8 Holmes Street are on the eastern side of that kerb and guttered roadway, with No 4 towards the southern end. The police attended the scene following a complaint of conduct said to involve two men holding a female down and threatening her with a knife. As the vehicle driven by Constable Fanning and containing Constable Kleinman proceeded along Holmes Street in a southerly direction in response to that radio call, a woman was seen running towards them. That woman looked petrified and was “hysterical”. The vehicle was pulled over on the eastern side kerb somewhere outside No 8. The officers got out of the vehicle. The woman (later identified as Kayla, Justin McMaster’s sister) said that one of the men “had a knife, he had a knife and he was choking me”. Another woman was then seen running along the grass verge near the footpath on that eastern side and towards the police vehicle. This woman was later identified as Georgia, Justin McMaster’s mother.

In the very short timeframe which followed, Constable Fanning was standing close to the eastern side kerb facing along Holmes Street in the direction of No 4 and Constable Kleinman was standing slightly behind to his right and towards the centre of the road. Kayla and Georgia were behind Constable Kleinman and closer to Constable Fanning. A man appeared. He ran out of the driveway of No 4 Holmes Street and then onto the roadway. Constable Fanning described him as carrying a long steel object in his left hand (a “metal pole”), waving it around, screaming and looking “crazy”. (Justin McMaster described himself at this time as “running around like a psycho”). The Constable thought the man, now known to be Justin McMaster, was one of the intruders. He pulled out his service revolver and trained it on him (in what is described as “a cover position”). As the man reached the road he proceeded to run down the middle of it in the direction of Constable Kleinman and the two women. Constable Fanning shouted at the approaching man two or three times “stop, police, stop”. At some stage someone else, likely to have been Constable Kleinman, shouted “put it down, put it down”. The man continued running along the centre of the road towards Constable Kleinman.

Constable Fanning could see Constable Kleinman in his right peripheral vision but could not see what she was doing. He knew that she had a Taser but did not know whether she had it turned on or had pulled it out. As events unfolded, he did not have time to look away and then look back. At the same time Kayla and Georgia were “screaming”. As the man got closer, Constable Fanning believed he presented a threat of serious injury or worse. The Constable did not have a Taser. The only other possible weapons at his disposal were capsicum spray and an extendable baton. He was not close enough to use either. He waited for Constable Kleinman to use her Taser. At the instant before he fired, he lowered his aim towards the man’s stomach area. At that time Justin McMaster was two to three metres from Constable Kleinman.

Constable Fanning’s oral evidence given before the primary judge captures the predicament facing him (Black 346D-S):

In my view Constable Fanning’s act in pulling out his service pistol when he first saw the man running out of No 4 Holmes Street with what looked like a metal pole was reasonable in view of what he understood had occurred in that house, which also suggested that this man may have a knife. From that point, as the man got closer to Constable Kleinman’s position on the roadway, he presented, unless stopped, a threat of significant injury. This was not a case of a simple assault being resisted by use of a firearm. The threat to Constable Kleinman was believed to be serious injury or worse. Constable Fanning waited until the last moment. He did not see any indication that Constable Kleinman was going to use her Taser. At that point, he had no alternative course of action available to prevent the threat to Constable Kleinman which he reasonably believed the man presented.