MURRAY V GEBBIE HC WN CIV 2008-485-569

MURRAY V GEBBIE HC WN CIV 2008-485-569 5 September 2008IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV 2008-485-569IN THE MATTER OF An appeal pursuant to section 72 of the District Courts Act 1947 BETWEEN BRENT ANDREW MURRAY Appellant AND BRENT GAYTHORNE GEBBIE Respondent Hearing: 19 June 2008 Counsel: D G Dewar for Appellant M J Lillico for Respondent Judgment: 5 September 2008 at 3.45pm In accordance with r540(4) I direct the Registrar to endorse this judgment with a delivery time of 3.45pm on the 5 th day of September 2008.RESERVED JUDGMENT OF MACKENZIE J INTRODUCTION[1] This is an appeal against an award of exemplary damages. The respondent, as plaintiff, brought proceedings against the Attorney General, (sued in respect of the police) and the appellant, a police officer, seeking exemplary damages. The circumstances of the claim were succinctly summarised by the Judge in these terms:[1] During the afternoon of 4 September 2003, Brent Gaythorne Gebbie was arrested on charges of breaching a protection order and criminal harassment, and was taken to the Lower Hutt Police Station for processing. One of the arresting officers was the second defendant, Brent Andrew Murray. Mr Gebbie and Mr Murray were known to each other through previous dealings and had little time for each other. At the police station, Mr Murray was responsible for interviewing and processing Mr Gebbie. The tone of their dealings was not amicable. Towards the end, the parties came to blows.[2] Mr Gebbie took the view that Mr Murray had assaulted him. He made a complaint to the Police Complaints Authority. After lengthy delays, the Authority concluded that Mr Murray had in fact assaulted Mr Gebbie; but the outcome was less than robust from Mr Gebbie's point of view. He therefore commenced this proceeding against Mr Murray and the Attorney-General in respect of the police, claiming damages in respect of Mr Murray's alleged assault. [3] Mr Gebbie claims exemplary damages from Mr Murray in respect of the assault itself and in respect of alleged misfeasance in public office. Mr Gebbie also claims damages from Mr Murray and the Attorney-General for his alleged breach of his right to be treated with humanity and respect pursuant to s 23(5) of the New Zealand Bill of Rights Act. Mr Gebbie further asserts that the Attorney- General is vicariously liable for the actions of Mr Murray and should be responsible for the payment of any damages.[2] The outcome was expressed in these terms:[96] The outcome is that Mr Gebbie is entitled to recover the sum of $12,000 from Mr Murray or from the Attorney-General, who is vicariously liable for it. He is also entitled to a declaration as to the breach of his rights under s 23(5) of the New Zealand Bill of Rights Act. He is in principle entitled to costs and disbursements, the fixing of which may be referred respectively to me or the Registrar if they cannot be agreed.JUDGMENT UNDER APPEAL[3] The case was heard in the District Court at Wellington on 23 and 24 July 2007 and judgment was delivered on 15 February 2008. Judge Broadmore carefully analysed the evidence and made findings of fact. Those are not in dispute. The Judge described the initial exchange between Mr Murray and Mr Gebbie, which involved verbal abuse, to which both parties contributed. His conclusions as to the verbal abuse between the parties were recorded in these terms:[26] I am satisfied to the standard of the balance of probabilities that Mr Gebbie was the initiator of the abuse passing between the parties, and that it was his intention in so doing to try to provoke Mr Murray into some reaction which he might be able to turn to his own advantage. By contrast, I consider that Mr Murray remained reasonably calm under this provocation until Mr Gebbie ratcheted up the level of abuse by referring to Mr Murray's wife.[4] The Judge also described the physical altercation which developed. The whole sequence of events was recorded (without sound) by a camera mounted in thecharge room where the incident occurred. The Judge had the benefit of that, in addition to the oral evidence which he heard. I have also been able to view the recording. He analysed the evidence in some detail and described his conclusions on the physical confrontation in the following terms:[45] In summary, therefore, my conclusions are that Mr Murray made the first physical contact between the parties by approaching Mr Gebbie and grabbing him on the left shoulder with his right hand and by the collar of his pullover with his left hand. After that, Mr Gebbie grabbed Mr Murray firmly around the throat (as to which I have no doubt on the basis of the medical evidence), Mr Murray attempted to free himself from that hold, and a full scale fight then developed. [46] My further findings relating to the fracas are these: 1. I do not consider that Mr Murray entered the holding cell with the intention of doing anything other than, as I said earlier, shaking some sense into Mr Gebbie by taking hold of him to reinforce his spoken insistence that Mr Gebbie should not talk about his wife in the way that he had done. 2. However, had he not entered the cell, nothing of what subsequently have happened would have occurred and there was no need for him to enter the cell. (He could have locked the door and walked away). 3. I do not accept that Mr Murray seized Mr Gebbie by the throat. That assertion is inconsistent with my interpretation of the video stills and, the evidence of Mr Murray. The report by Dr Thomson of his examination of Mr Gebbie establishes that he had sustained some blow or abrasion to his neck, but no more than that. 4. Mr Gebbie responded to Mr Murray's actions, as I consider he was entitled to do, but in my view the photographic and medical evidence establishes that Mr Gebbie's response was to grasp Mr Murray around the throat and apply considerable force to Mr Murray's windpipe. Mr Gebbie was somewhat taller than Mr Murray, had a longer reach, and would have been well able to simply hold Mr Murray at a distance. 5. From there, the confrontation developed into a brawl as Mr Murray sought to free himself from Mr Gebbie's hold and both parties struck and landed a number of blows on each other. 6. At the end of the fracas, when Mr Murray appeared to have subdued Mr Gebbie to the extent that the latter was kneeling, if not on all fours, Mr Murray struck him a full-blooded blow with his right fist for which it is not easy to see any justification. It is likely that this is the blow which caused the cut over Mr Gebbie's right eye which is evident inphotographs taken of him after the incident and which is described in Dr Thomson's evidence. [47] It therefore appears to me that Mr Murray is responsible for initiating the confrontation and laying hands on Mr Gebbie at the outset, and for landing a purely gratuitous blow on Mr Gebbie at the end of the fracas, but that Mr Gebbie is responsible for the escalation of the fracas by possibly grabbing Mr Murray's throat in response to Mr Murray's initial seizing of him by the left shoulder and collar of his jersey. I do not consider that Mr Murray went into the charge room with the intention of inflicting injury on Mr Gebbie or of starting a violent confrontation with him. But clearly the aggressive actions on the part of Mr Murray which I have described give rise to a liability in damages to Mr Gebbie.[5] The claim sought exemplary damages for assault and battery, and for breach of BORA rights. The Judge dealt first with damages for assault and battery. He noted that the entitlement is limited to exemplary damages and discussed the principles to be applied. He noted awards in other cases and concluded that the appropriate award against Mr Murray by way of exemplary damages on this head was $12,000. He also held that the Attorney General was vicariously liable for that award. That finding is not the subject of appeal. [6] The Judge then considered damages under the New Zealand Bill of Rights Act 1990 (BORA). He held that Mr Gebbie was entitled to compensatory damages for the affront to his rights under s 23(5) of BORA. He indicated that if damages were claimed solely for the breach of BORA rights, he would have fixed the damaged payable at $5,000. However, he did not consider it appropriate to make a further award beyond the $12,000 already awarded and accordingly confined himself to making a declaration that Mr Gebbie's rights under s 23(5) were infringed.THE GROUNDS OF APPEAL[7] The appellant in this Court accepts that it was open to the District Court to find the assault and accepts the District Court's findings of fact, but submits that the conclusion drawn by the Judge from the facts, as found, is incorrect and should be reversed. The appellant submits that exemplary damages should not have been awarded. He accepts that on the facts a declaration under BORA may have beenappropriate. In the alternative he submits that any damages awarded should not have exceeded $5,000. [8] The appellant raises three grounds of appeal. The first concerns what counsel for Mr Murray describes as Mr Gebbie's conduct in provoking what was, on the Judge's findings, a fight between two willing combatants. He submits that the effect of that is that an award of exemplary damages by way of punishment was not necessary. He submits: "If Mr Gebbie got what he was looking for, the Court is not called upon to punish him at all. An application of exemplary damages to these circumstances is to reward a party for inducing another to behave in exactly the way that the party intended." Counsel further submits that Mr Gebbie did not deserve a reward, in the light of his provocation. [9] The second ground of appeal is that the Court should not have awarded exemplary damages as relief under the Bill of Rights Act would have been a better response. [10] The third ground is that, when weighed against comparable cases, the level of exemplary damages is, on the fact of this case, manifestly excessive.DISCUSSION (a) First ground of appeal - provocation[11] Mr Dewar accepts that the decision of the Court of Appeal in Donselaar v Donselaar [1982] 1 NZLR 97 confirms the principle that the exemplary damages remains available for assault, following the advent of ACC. However, he notes that Court's statement that "without some additional feature as for example an abuse of power or the invasion of other rights of the plaintiff, it is not easy to envisage a case of personal injury which would not have been met by compensatory or aggravated compensatory damages, the recovery of which is barred by the Accident Compensation Act". Counsel notes that there is an obvious distinguishing feature in this case in that Mr Gebbie was in the custody of Mr Murray a serving police officer.He submits however, that the Court's enquiry as to the appropriate level, if any, of exemplary damage must begin with the premise that the plaintiff has received full compensation. He also notes the decision in Auckland City Council v Blundell[1986] 1 NZLR 732 which was applied by Judge Broadmore. Mr Dewar draws attention to the model jury direction proffered by the Court of Appeal in that case and in particular to the passage: "All the circumstances of the case have to be considered. For example, if you think there was some provocation by the person assaulted, that would make the officer's conduct less blameworthy. You might then decide either that he should not be punished at all or that the damages should be smaller on account of the provocation." Mr Dewar accepts that it was open to the Judge to find an assault had occurred, but submits that the fact that the assault was entirely the result of the provocation by the plaintiff extinguished the availability of exemplary damages. In making that submission, Mr Dewar draws attention to numerous passages in the judgment under appeal which deal with the issue of provocation. Those are summed up in the following passage from the judgment:[59] In assessing the damages which ought to be paid by Mr Murray, I bear in mind the following particular aspects which have been identified in the factual analysis undertaken earlier in this judgment: 1. Mr Gebbie, as I have found, deliberately embarked on a course of abuse of Mr Murray with the intention of provoking him into some reaction which he might be able to turn to his advantage. Mr Gebbie's demeanour and conduct, and in particular his language, went beyond the routine abuse which police officers, unhappily, are frequently obliged to put up with.[12] The Judge further noted that Mr Murray had already received punishment, albeit mild, at the hands of the Police Complaints Authority and that the incident was very short. He dealt with the quantum of damages in these terms:[62] The high water mark of any award in what I might call "police assault" appears to be the award of $30,000 to the plaintiff inHarris. Not far behind is the award of $25,000 to the plaintiff inBeagle. It is necessary also to bear in mind the dates of some awards, because of changes in the value of money. [63] There appears to be no case where the plaintiff has demonstrated deliberate and calculated provocation as opposed to general abuse and misbehaviour. In a sense, in this case, Mr Gebbie got what he was looking for. In my view, that justifies a substantial discount from the damages to which he would otherwise be entitled.[64] In my view, Mr Gebbie is entitled to recover the sum of $12,000 from Mr Murray by way of exemplary damages.[13] Mr Dewar submits that conduct on the part of the plaintiff can go further than to reduce the amount of exemplary damages and can extinguish a plaintiff's entitlement to damages altogether. He submits that it should do in this case. He refers to a number of authorities in support of that submission. [14] As a matter of law, the fact that conduct was provoked is not a bar to an award of exemplary damages in respect of that conduct. It is a factor which must be weighed in making the assessment. The appellant was in a position of power and authority over the respondent. That imposed a duty on him not to abuse the position. The provocation which he suffered may explain his actions, but it cannot in law excuse them. The extent to which it should affect the issue of damages was a matter for the Judge. Similarly the need for punishment is a factor which is to be weighed by the finder of fact. Accordingly, I do not consider that it can be said that the Judge has erred in law in determining that the case is one where a remedy in exemplary damages was available. None of the authorities relied upon go so far as to establish that the provocation here should extinguish the claim for exemplary damages.(b) Second ground of appeal – BORA compensation sufficient[15] The Judge's view was that BORA compensation was not sufficient compensation in this case. The basis for the award of public law damages under BORA has recently been considered by the Supreme Court in Taunoa v Attorney- General [2008] 1 NZLR 429. I consider that the Judge was entitled to take the view that the first consideration here was whether there should be an award of exemplary damages on the assault and battery claim. This is not a case where the assault could properly be seen as incidental to Mr Gebbie's arrest or as arising out of an excessive application of the power of arrest. Mr Gebbie had been arrested and was being processed. The way that was done did not involve a breach of his BORA rights. The breach arose from the gratuitous, albeit provoked, actions of Mr Murray. In those circumstances, the Judge's approach of considering first whether those actions, which were clearly tortious, justified an award of exemplary damages under privatelaw principles, was appropriate. This was not a case where the primary focus should have been on the breach of the public law obligation inherent in BORA, and only secondarily on the tort claim. Accordingly, the amount of the damages which the Judge would have awarded had he considered the matter from the public law perspective does not provide any basis for limiting the damages to be awarded in tort.(c) Third ground of appeal – the level of damages[16] This case is one where an award of damages was properly open as a matter of law. The quantum of the award was a matter for the Judge. As the form of model jury direction in Auckland City Council v Blundell makes clear, the assessment of the circumstances, including the degree of provocation and the level of punishment appropriate, are matters for the trier of fact. Mr Lilico for the respondent refers toTelevision New Zealand Limited v Quinn [1996] 3 NZLR 24 as to the test to be applied on appeal in considering whether an award of damages is excessive. That case involved a jury award. The classic statement of the grounds upon which an appellant Court will interfere by reassessment of the damages fixed by a Judge in a judge-alone trial is the statement of Greer L J in Flint v Lovell [1935] 1 KB 354 at 360 (approved by the House of Lords in Davies v Powell Duffryn Collieries, Limited[1942] AC 601): this Court will be disinclined to reverse the finding of a trial judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a lesser sum. In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very small as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled.[17] There is no question here of the Judge having acted on a wrong principle nor can this case be said to fall within the category of "an entirely erroneous estimate". The Judge properly considered all relevant factors. His assessment of the extent to which they should be reflected in an award of damages was well within the available range.RESULT[18] For these reasons, the appeal is dismissed. Costs are reserved. I indicate a preliminary view that the respondent is entitled to costs on a 2B basis. Counsel may submit memoranda if they are unable to agree in the light of that indication"A D MacKenzie J"Solicitors: Thomas Dewar Sziranyi Letts, Lower Hutt for Appellant Ord Lillico, Wellington for Respondent