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Accident Compensation Cases

Gregory v Gollan (HC, 21/09/06)

Judgment Text

Associate Judge J P Doogue
Defendants' application 
This matter has been set down for trial on 25 September 2006. This fact only came to my attention once the hearing before me commenced on 11 September 2006. Apparently the Crown's application for trial by Judge alone was filed as long ago as September 2005 but for various reasons it has languished since then. It was apparently overlooked. Ideally this matter should have been given a fixture long before 11 September 2006 because if the matter were to be dealt with by a jury there would have been considerable difficulty in making the necessary arrangements by the 25th. As well, the trial duration would double from five days to ten days with resulting disruption to rostering. 
Because of the pressing trial date I told counsel that I would attempt to provide a reasoned judgment in the next two or three days depending on other fixtures, or failing that, I would send out a minute advising what my ruling was going to be with reasons to be provided subsequently. I advised counsel by minute 14 September 2006 that I intended to grant the Crown application. 
Plaintiff's allegations 
The plaintiff has filed several pleadings. Currently, the statement of claim is the fourth amended statement of claim. However, for the purposes of the argument before me on 11 September, the parties worked off the third amended statement of claim. That was because the Crown had only recently received the fourth amended statement of claim shortly before the hearing and had prepared on the basis that the third amended statement of claim was the current document. As well, I was told, there was no substantial difference concerning the matters I need to deal with in this judgment between the third and the fourth amended statements of claim. 
In the third amended statement of claim, the plaintiff alleges that at about 3:00 a.m. on 24 June 2001, he was at his home at Wattle Downs. He alleges that the first defendant, accompanied by other members of the police, including the third, fourth and fifth defendants, arrived at his house. The external doors to the house were locked. The first defendant demanded that the plaintiff admit him to the house. The plaintiff refused and said he wanted to talk to his father on the telephone. This, he alleges, was not good enough for the first defendant who was speaking to him through an open window of the house. The first defendant then grappled with the plaintiff through the window and then climbed in through the window, restrained the plaintiff, and sprayed him with CS spray. The first defendant then handcuffed the plaintiff. The plaintiff further alleges that the first defendant then opened a locked external door of the house and admitted the third, fourth and fifth defendants into the property. 
The plaintiff was arrested and kept overnight in the Papakura Police Station. The next day he appeared in court charged with assault on a police officer and resisting arrest. These were later supplemented to include more serious offences including aggravated burglary. 
Since those events the plaintiff's father has retained the services of a private inquiry agent. That person obtained further information and as a result of that the prosecution dropped the charges against the plaintiff two months after the events of 24 June 2001. Another person was later convicted of the burglary. 
The plaintiff first claims in assault and battery. He says in his statement of claim that he does not allege that he suffered personal injury by accident and he does not claim to recover any damages arising out of personal injury by accident. Nonetheless he claims damages for assault and battery, the basis for which is not specified in the third amended statement of claim. He also claims aggravated and exemplary damages. 
His pleading includes a second cause of action in trespass relating to the entry into the house. The plaintiff also alleges that the defendants' actions unlawfully handcuffing him, etc., amounted to an act of trespass against him personally. Damages are claimed in the sum of $20,000. This sum has apparently been reduced in the fourth amended statement of claim. The plaintiff also seeks exemplary damages under this head of claim. 
His third cause of action is for unlawful arrest with, again, damages for “loss and damage” being claimed as well as exemplary damages. 
The fourth cause of action is for false imprisonment. He says as a result of the false imprisonment he sustained: 
“Humiliation, embarrassment, loss of dignity, loss of self-esteem, loss of pride, distress and great anxiety, he was injured in his reputation and was put to considerable trouble, inconvenience, anxiety, and expense and has suffered loss and damage. ”
The references to expense, I understand, are the costs incidental to retaining the private inquiry agent. Under this heading he claims “Special damages in the sum of $18,500”, and other damages for $60,000, plus exemplary damages. 
The fifth cause of action is for malicious prosecution and the matters alleged to ensue from that are essentially the same as those claimed under the cause of action for false imprisonment with damages of $60,000 being claimed and exemplary damages. 
The sixth cause of action is for conspiracy to injure by unlawful means. The defendants are alleged to have agreed in an effort to cover up the wrongfulness of their actions to lay baseless and false charges and persisting in prosecution of those when it was “blatantly obvious” that there was no lawful basis for them to do so. Special damages are claimed under this heading which relate to the cost of the private investigator. Other damages of $60,000 are claimed and exemplary damages of $50,000 are sought. 
The seventh cause of action, which is misfeasance in public office, alleges that the misfeasance consisted in the assault on the plaintiff, trespass on the premises, his arrest and imprisonment, the searching of the premises, and the laying of charges. It is alleged that the defendants knew or ought to have known that they had no lawful power or authority to do these things or alternatively they were grossly reckless as to whether or not they had such power. Damages of $45,000 are claimed. 
The defendants' response 
The Crown alleges that the background to these occurrences was that a burglary had occurred in a nearby property. A police dog handler came to the scene. The dog allegedly found a scent leading from the place of the burglary across a golf course and to the door of the plaintiff's property. The first and other defendants had been summoned to help and they arrived at the property and the events just described allegedly took place. 
The defendants, agree that the defendants went to the plaintiff's property on the date and at the time alleged. They also agree the first defendant gained entry to the house through a window. The position of the defendants, as I understand it, is that it is likely that they will not assert at the trial that there was any right to enter the property under s 317 of the Crimes Act because there may be difficulties in establishing that the Constable who entered the premises was freshly pursuing the plaintiff. 
The defendants say that the first defendant was entitled to arrest the plaintiff, even though he did not have a warrant to do so. They claim that power to do so derived from s 315 of the Crimes Act. The first and second defendants say that the first defendant was entitled to arrest the plaintiff because he had good cause to suspect him of having committed an offence punishable by imprisonment, namely burglary, and thus the requirements of s 315(2) were satisfied. For the purposes of argument before me, Mr Davies conceded that the first defendant would not have had power to arrest the plaintiff in the house if the first defendant had entered the house as a trespasser. He said that the first and second defendants proposed to meet this hurdle by invoking an implied licence to enter the premises. 
The plaintiff has given notice that he requires the proceeding to be tried by a judge and jury. The defendants do not dispute that the plaintiff was entitled to seek a trial by that mode. But they seek an order that trial be by judge alone. They invoke the provisions of s 19A(5) of the Judicature Act 1908. It is to that provision that I now turn. 
The threshold issue under s 19A 
Section 19A Judicature Act 1908 
Section 19A provides, so far as is relevant to this proceeding: 
19A Certain civil proceedings may be tried by jury 
This section applies to [civil proceedings] in which the only relief claimed is payment of a debt or pecuniary damages or the recovery of chattels. 
If the debt or damages or the value of the chattels claimed in any [civil proceedings] to which this section applies exceeds [$3,000], either party may have the [civil proceedings] tried before a Judge and a jury on giving notice to the Court and to the other party, within the time and in the manner prescribed by the [High Court Rules], that he requires the [civil proceedings] to be tried before a jury. 
Notwithstanding anything to the contrary in the foregoing provisions of this section, in any case where notice is given as aforesaid requiring any [civil proceedings] to be tried before a jury, if it appears to a Judge before the trial– 
That the trial of the [civil proceedings] or any issue therein will involve mainly the consideration of difficult questions of law; or 
That the trial of the [civil proceedings] or any issue therein will require any prolonged examination of documents or accounts, or any investigation in which difficult questions in relation to scientific, technical, business, or professional matters are likely to arise, being an examination or investigation which cannot conveniently be made with a jury,– 
the Judge may, on the application of either party, order that the [civil proceedings] or issue be tried before a Judge without a jury. ”
The leading authority on how the section is to be interpreted is Guardian Assurance Company Limited v Lidgard [1961] NZLR 860. The following passage appears in the judgment at page 863-864: 
“Paragraph (a) speaks of ‘the consideration of difficult questions of law’. The word used is ‘consideration’ and not ‘determination’. Therefore it seems to us that the paragraph is dealing with practical problems likely to arise during the progress of the trial, and is not concerned with questions of law, however difficult, which the Judge may have to decide before a final judgment can be entered, and which do not make it inconvenient to have a jury as the tribunal of fact for the trial itself. Thus, a claim founded on negligence may give rise not only to the question of fact as to whether there was a failure to use proper care, but also to questions of law, as, for example, whether the law recognises any duty owing by the defendant to the plaintiff, or whether the damage suffered is too remote in law. Such questions of law are ordinarily quite separate and distinct from the issues of fact, and, indeed, only arise after findings of fact in favour of the plaintiff. They do not affect the nature of the jury's task as the tribunal of fact. The cases which come within para. (a) are, we think, cases where the questions of law are of such a nature that it becomes difficult to keep the respective functions of Judge and jury separate from one another. There are cases where matters of law and matters of fact so merge into one another that the task of the jury becomes complicated in the application to the facts of questions of law which it is difficult for the Judge to explain in language they could be expected to appreciate and apply. 
There are other cases where, during the course of the trial, the Judge will be called upon to give consideration to difficult questions of law and where it is not possible to isolate satisfactorily questions of fact for submission to the jury. These are broadly the cases to which, we think, para. (a) applies. It should be added, however, that it is not possible to describe exhaustively any category of cases in which the power conferred by the paragraph might properly be exercised, but we have said enough to show that, in our opinion, the principal matter for consideration under the paragraph must be the extent to which the exposition and application of matters of law may cause difficulty to the Judge and the jury in the discharge of their respective functions. ”
(emphasis added)
In an earlier part of the judgment, at page 863, the Court said: 
“Under the existing law, a litigant, provided he gave the requisite notices, was entitled as of right to a trial before a jury, where the only relief claimed was the payment of a debt or pecuniary damages, or the recovery of chattels. He could not be denied that right, however inconvenient and unsatisfactory a trial before a Judge and jury might be. It is clear, we think, that it was this defect in the law which the amending provision was intended to remedy. But we think it is equally clear that the new provision was not intended to make any radical alteration in the existing law. There was no mischief which required a remedy if the questions of fact which the jury were required to consider did not involve any complicated direction by the Judge on questions of law, or if the trial of the action did not involve a prolonged examination of documents or accounts or the like. Moreover, the subsection recognises that it may be sufficient to order trial before a Judge alone of some issue or issues in the action, thus leaving the remaining issues to be tried before a jury. This reinforces the view that the new provision was not intended to deprive litigants of their right to trial by jury to a greater extent than was necessary, and we think it is not unlikely that in practice it may be found that effect can often enough be given to the subsection by ordering one or more issues to be tried before a Judge alone, without ordering the whole action to be so tried. This reinforces the view that the new provision was not intended to deprive litigants of their right to trial by jury to a greater extent than was necessary, and we think it is not unlikely that in practice it may be found that effect can often enough be given to the subsection by ordering one or more issues to be tried before a Judge alone, without ordering the whole action to be so tried. ”
Lidgard was later considered in the Court of Appeal decision of South British Insurance Company Limited v Braithwaite [1970] NZLR 93. That was a case of wrongful dismissal. Issues for determination included construing the terms of an employment offer. North P at 96 said: 
“Now it is plain at once that difficult questions of law arise in this case and the question is whether they can conveniently be separated from the questions of fact which would require to be submitted to the jury in the form of carefully drawn issues. Apart from this the defendant also alleges that in any event after the cause of action arose, the plaintiff accepted the sum of $928 (and signed a receipt) in full satisfaction of any claim he might have against the company. I do not think it necessary to go in any detail into the reasons that persuade me that this is a case that ought to be heard by a Judge and not be submitted to a jury. 
This Court examined the matter fully in Lidgard v. Guardian Assurance Co. Ltd. [1961] NZLR 860, when it affirmed a judgment of my brother Turner - which will be found in the same volume at p. 591 - and it is plain that what Cleary J. said really affirmed what Turner J. had earlier said, namely, that when the section speaks of ‘the consideration of difficult questions of law’ the Legislature is not speaking of their determination because very often questions of law present difficulties but rather with practical problems likely to arise during the progress of the trial, and is not concerned with questions of law, however difficult, which the Judge may have to decide before a final judgment can be entered. In short the question to be determined is whether or not it is possible to isolate satisfactorily questions of fact for submission to the jury. 
Now in the Court below Perry J. decided that it was both possible and reasonably convenient to isolate the questions of fact to be submitted to the jury in this case. For my part I am quite satisfied that that is not so. I think questions of law are inextricably intermingled with questions of fact under a number of headings and I am accordingly of opinion, with great respect for the view that found favour with Perry J., that he did not give sufficient weight to the difficulty that would stand in the way of any Judge settling issues for consideration by the jury in the present case. ”
The next authority that I regard as helpful in the circumstances of this case is McInroe v Leeks [2000] 2 NZLR 721, a Court of Appeal decision. I will make further reference to this case below. That case involved claims by former patients of a psychiatric hospital. Included in the issues was whether the claimants had consented to detention and/or treatment. The Court considered at [15] that the effect of the intertwining of factual and legal issues would lead to “complications for trial management purposes”
The parties did not provide me with draft questions for the jury. While this is not essential, it would have been helpful in a case of this kind where there are a large number of issues and intermingling of issues of fact and law, for some consideration to have been given to what, if any, practical difficulties the trial judge would confront in settling the form of questions for the jury. Mr Henry did provide me with the questions that the judge settled for the jury's response in Menzies v Attorney-General (HC CHCH CIV 2002-418-000005, 17 November 2005). That provided some assistance as to how the judge might approach his/her task in this case. I note that the recent Court of Appeal judgment in Television New Zealand v Haines (CA 96/06, 6 September 2006) made reference to this topic. 
“45. TVNZ did not provide us (or, for that matter, Venning J) with a list of suggested questions for the jury in order to demonstrate that the jury's task would be manageable. We agree with Venning J that formulating questions for the jury in this case would be very difficult, given the interlinking of law and fact at each stage of the inquiry into the legal position between the Pearces and Haines. In our view, Venning J was correct to treat this as a very weighty factor in the balancing process and his resulting decision has not been shown to be plainly wrong. ”
I will determine the matter on the basis that the onus of showing that the case is one which comes within the scope of s 19A(5) rests with the applicants: Shattock v Devlin (1988) 1 PRNZ 271,277. The enquiry is a two step one: first does the present case fall within the section, and secondly, assuming that it does, should the Court exercise its discretion to direct that the trial should be before a judge alone. 
The approach I intend to adopt is as follows. First, consideration is required of the questions of law that will arise in this case. Second, some analysis has to be attempted of whether difficulties are likely to arise when the judge gives directions to the jury because the directions concerning the facts they need to make findings on will have to be accompanied by instruction on the applicable law in order to give the necessary definition to the factual issues that they must give a verdict on. Third, whether legal complexity means that framing issues for trial is going to pose difficulties because of the difficulty of cystallising out an issue of fact which is suitable for a jury verdict. Fourth, some consideration must be given to whether anticipated problems can be met by the judge reserving some of the issues to him/her self for decision. 
If the case appears to have crossed the threshold of s 19A(5), the Court must exercise its discretion to decide whether it is fair and just to make an order for trial by Judge alone. I consider that in exercising that discretion it is relevant for the Court to take into account the accumulated effect that a proliferation of issues might have on the management of the trial. While it might be possible for a judge to overcome a very limited number of problems of the kind identified in Lidgard, and to satisfactorily bring the trial to a conclusion, quite different consequences might flow if there is a large number of problem issues. In such a case, the ability of the jury to absorb directions on difficult matters, including instructions as to the law, could be overwhelmed. 
I do not intend to try and analyse all the causes of action exhaustively in order to determine whether the case comes within s 19A(5). But I will examine the first cause of action pleaded reasonably closely, and look in a rather more cursory way at the remaining causes of action. 
Cause of action in battery 
The following are the elements of the tort of battery: 
application of force; 
to body of another; and 
without that person's consent OR without lawful justification. 
The defence case will be that the first defendant had lawful justification. The Crown relies on: 
Sections 31 and 315 Crimes Act 1961: that the Police had good cause to suspect that the plaintiff had committed an offence punishable by imprisonment; 
Sections 32 Crimes Act 1961 and 39 Summary Offences Act 1981: that the Police believed on reasonable and probable grounds that the plaintiff had committed the offence; 
Section 42 Crimes Act 1961: that the Police witnessed the plaintiff breaching the peace. ”
The issue of good cause to suspect will require a direction to the jury that the existence of good cause to suspect is to be determined objectively (Police v Anderson [1972] NZLR 233); that it is based on actual facts (R v Sanders [1994] 3 NZLR 450); and that it requires a degree of satisfaction, not necessarily amounting to belief, but at least extending beyond mere speculation as to whether an event has occurred or not (R v Thompson (1995) 13 CRNZ 546). These authorities are collected in Adams commentary to s 315. 
I assume that the directions given, and the questions posed for the jury, will have to cover the issue that the good cause to suspect extends not just to the fact that an offence punishable by imprisonment has been committed but also that it was the plaintiff who committed it. 
As part of the defence, the defendants will be required to establish that the first defendant was not present on the property as a trespasser when he purported to arrest the plaintiff and used force on him to achieve that purpose. As I understand it, the defendants say that they were on the property pursuant to an implied licence; and that the police officer was also acting in pursuance of an implied licence when he put his arm through the window of the house to arrest the plaintiff. That in turn raises the question of the limits of the doctrine of implied licence for a person to come onto the property of another. 
In R v Fraser [2005] 2 NZLR 109, 112, the Court of Appeal said: 
“The test of implied licence to enter property is based on a reasonableness standard. What is reasonable to infer from the ordinary occupier of land who leaves their front gate open and has no sign refusing entry? It is reasonable to imply authority from the occupier to permit entry onto the land for legitimate inquiry. And the entitlement to stay on that land continues until the legitimate inquiry is made or frustrated or the implied authority is revoked by the occupier. ”
In R v Pou [2002] 3 NZLR 637, 641, the Court of Appeal said: 
“The extent of the implied licence has been reasonably strictly construed and is generally limited to entering a property and proceeding to knock on the front door or some other usual point of ingress or egress. No authority was cited to us for the proposition that the licence extends to entering inside a private dwelling in the absence of consent of the occupier or statutory authority. A police officer has no greater rights to enter premises under an implied licence than a member of the public and we are satisfied that the licence does not extend to entering inside a private dwelling. ”
Relevant considerations here will probably include the apparently hostile response of the plaintiff to having police officers on his property and the fact that it was 3:00 a.m. As well, the mode of contact, namely the officer reaching through a window when he knew the plaintiff had locked the front door, will be germane to the question of whether the first defendant had an implied licence. 
I need say no more about this aspect of the matter. What I have noted, I believe, shows that the question of the right to be on the property and to reach inside the dwelling on the property, will require directions to the jury which go into the legal considerations such as the existence of an implied licence. They will require the jury to apply the law to the circumstances. The issue is a mixed one of fact and law. 
Another issue which the second defendant said may raise concerns is the plaintiff's alleged right to use force, on the hypotheses that the plaintiff was resisting a trespasser and was resisting unjustified arrest. Mr Davies said that the reasonableness of the force used would be another issue. I regard that as a possible issue, but do not rate very highly the prospects that it will be a matter concerning which the judge will have to direct the jury or settle a question for them. 
Issues a)-c) can no doubt be reduced to discrete clear issues of fact. Nor are they matters in regard to which it can be said that issues of fact and law merge. But the same cannot be said of issue d) for the reasons I have set out when discussing the power to arrest without warrant under s 315. 
The next issue concerns damages. Because of the provisions of the Injury Prevention, Rehabilitation and Compensation Act 2001, the plaintiff is not able to recover compensation for harm arising through personal injury by accident. The issues that arise in this regard, and on which the jury will need direction, include the following. The tort under which the claim is made is assault and battery. The apprehension of the application of force may justify an award of damages, whereas the physical harm arising from the battery would not. While compensatory damages for any harm suffered by way of personal injury as a consequence of the battery would not be recoverable, damages seeking compensation for injured feelings because of the insulting or upsetting manner of the conduct of the police officers may be. Exemplary damages are also recoverable. As well, it appears to be the view of the authors of The Law of Torts in New Zealand 4th ed, (Todd & Ors) at p 32, that a person can claim for detrimental mental effects falling short of mental injury. That appears to be the meaning of the following passage in the work: 
“Nor is it [sic] covered for compensation, falling short of the statutory test for mental injury requiring a clinically significant behavioural, cognitive or psychological dysfunction. So very arguably a claim for damages can still be maintained. ”
Stress and anxiety and other matters may therefore well be the subject of a general damages award. These matters involve complex issues of law which may be difficult to explain to the jury and contribute to the overall complexity of managing the case with a jury. 
The difficulties that I forsee arising, centre on the compensatory element of damages and the need to ensure that the assessment is not based in part on bringing to account matters in respect of which the Act bars compensation. 
Other causes of action 
I will briefly look at the other causes of action. I do that because my approach is to try and get a sense of what the cumulative effect of the raising of multifarious issues is going to have on the management of the trial. The first point to be noted is that underlying the various causes of action are reasonably simple factual transactions. 
The trespass to land involves an allegation that the Police climbed in through the window and then the first defendant opened the door to allow the Police in. In regard to the trespass the plaintiff must establish that it was unjustified, that it was intentional, and that it amounted to an interference in possession of the land. There may also be an issue as to whether or not the plaintiff was in fact the possessor of the land. A further aspect of the trespass though is the actions of the other Police party searching the house. Assuming in favour of the defendants that the arrest was valid, issues could arise as to whether or not the search that followed was one which was justified at common law, which in turn will depend upon the subjective reasons of the Police Officers conducting the search and the objective reasonableness of those reasons: R v Nobel (HC AK 2005-044-841, 3 April 2006, Winkelmann J). The search must have been one which was incidental to the arrest. 

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