Eaves v Donelly & Anor [2011] QDC 207

DISTRICT COURT OF QUEENSLAND CITATION: Eaves v Donelly & Anor [2011] QDC 207 PARTIES: RENEE TERRI EAVES (Plaintiff) v BARRY JOHN DONELLY (First Defendant) and STATE OF QUEENSLAND (Second Defendant) FILE NO/S: D705 of 2008 DIVISION: PROCEEDING: ORIGINATING COURT: DELIVERED ON: 15 September 2011 DELIVERED AT: Brisbane HEARING DATE: 8, 9, 10 and 11 August 2011 JUDGE: Samios DCJ ORDER: Judgment for the plaintiff against the defendants for the sum of $93,000 inclusive of interest. CATCHWORDS: STATUTES: CASES: TORT – false imprisonment – police – wrongful arrest – damages Personal Injuries Proceedings Act 2002 Police Powers And Responsibilities Act 2000 (reprint no. 4F) – s 198 Police Service Administration Act 1990 – s 10.5 Cassell & Co. Ltd v Broome (1972) AC 1027 at pp 1124- 1126 applied Coleman v Watson & Shaw [2007] QSC 343 applied Couchy v Birchley (2005) QDC 334 considered Cubillo v Commonwealth (No. 2) (2000) 103 FCR 1 at 354- 355 cited Ferguson v State of Queensland & Anor [2007] QSC 322 applied -- 1 of 21 -- 2 Henry v Thompson [1989] 2 Qd R 412 cited Lamb v Cotogno (1987) 164 CLR 1, 8 applied Ruddock v Taylor (2005) CLR 612, 650-651 cited COUNSEL: The plaintiff was self represented Ms Philipson of Counsel (Counsel for the first and second defendants) SOLICITORS: The plaintiff was self represented G R Cooper, Crown Solicitor for the first and second defendants [1] The plaintiff claims the first defendant, who was a police officer, arrested and handcuffed the plaintiff for the alleged offence of disqualified driving. The plaintiff claims she did not drive whilst disqualified as claimed by the first defendant. At a later hearing before a Magistrate the plaintiff was found not guilty of the alleged offence. [2] The plaintiff claims that all up, from the time she was arrested and handcuffed to the time she was released from the watch house, it was a period of about two and a half hours. [3] This action is the plaintiff‟s claim against the first defendant for damages for false imprisonment on the ground her arrest and handcuffing was not excused or justified by law. [4] The plaintiff‟s claim against the second defendant is on the ground that the second defendant is liable for the first defendant‟s wrongful actions (s10.5 Police Service Administration Act 1990). [5] The plaintiff was born on 29 April 1976. -- 2 of 21 -- 3 [6] At about 5.45 pm on 16 March 2006 the first defendant came to the plaintiff‟s home at Unit 110, 54 Vernon Terrace, Teneriffe, Brisbane with Constable Mann where they spoke to the plaintiff. [7] The defendants say the suburb was Newstead but nothing turns on this. [8] At the plaintiff‟s home the first defendant spoke to the plaintiff in relation to her allegedly driving a motor vehicle on Commercial Road, Teneriffe whilst being a person who was disqualified from holding a driver‟s licence. [9] It is agreed the alleged offence occurred approximately 20 minutes before the first defendant attended the plaintiff‟s home. [10] Whilst at the plaintiff‟s home the first defendant told the plaintiff he had observed her driving on Commercial Road, Teneriffe and asked the plaintiff whether she had any reason for driving whilst disqualified. [11] There is no dispute that on 16 March 2006 the plaintiff was a disqualified driver. It is agreed the plaintiff told the first defendant that she had not been driving. The plaintiff in her evidence said she told the first defendant she had been to the hospital and that her partner had been driving. [12] The first defendant then arrested the plaintiff. The arrest was without warrant. [13] It is agreed the plaintiff told the first defendant she was pregnant and sick. I am satisfied from the audio tape of the arrest that words to that effect were spoken immediately after the plaintiff‟s arrest and before she was handcuffed. -- 3 of 21 -- 4 [14] The plaintiff‟s evidence was that the first defendant told Constable Mann to put the handcuffs on the plaintiff but she seemed to be in shock and did not do it. The plaintiff said it was the first defendant who put the handcuffs on her and she was handcuffed with her hands behind her back. Regardless of who put the handcuffs on the fact is that it is agreed the plaintiff was handcuffed. The plaintiff‟s evidence was that she was handcuffed with her hands behind her back. [15] The plaintiff‟s evidence was that she was led by the police officers to the police car. The plaintiff‟s evidence was that she was walked through her building, down her elevator, past cafés, shops, people and neighbours. She said along the way she was sick and she was dry retching and then once in the police vehicle she felt sick and needed to vomit. It is agreed the police vehicle pulled over and the door was opened and the plaintiff hung her head out the police car. The plaintiff said in her evidence she did vomit. [16] The plaintiff was then transported to the Roma Street Watch House where she was taken into custody by the Queensland Police Service. The plaintiff was charged with the offence of disqualified driving. At a later hearing before a magistrate the plaintiff was found not guilty of the charge. [17] Sergeant Armitage was called by the defendants. He was the Charge Sergeant at the Watch House when the plaintiff was brought in. I accept his evidence that from his records the plaintiff was questioned at 18.05 hours by the first defendant and Constable Mann and was arrested at 18.07 hours by the first defendant and arrived at the Watch House at 18.13 hours and was charged at 19.35 hours and released at 19.46 hours. -- 4 of 21 -- 5 [18] The plaintiff says she was restrained for about two and a half hours. The evidence of Sergeant Armitage would suggest she was in custody for about 90 minutes if one goes from the time of arrest. Sergeant Armitage said though that the time in custody is taken from when questioning begins which in this case was at 18.05 which would make the time in custody about one and three quarter hours. [19] The plaintiff claims she told the first defendant that she had low blood pressure and low blood sugar. When this was put to the first defendant he said he had no recollection of that. The audio-tape of the conversations during the arrest is exhibit 2 in the proceedings. The tape bears out the plaintiff‟s claim that she did say these things to the police. However my understanding of the tape is that the plaintiff told the first defendant this at the police car or when the police car was moving after the plaintiff‟s arrest. It is agreed though the plaintiff said she was sick and the police vehicle had to pull over because the plaintiff said she was going to be sick. [20] The plaintiff‟s evidence is that when she was arrested she was scared because she had not committed the offence. Further it was apparent to her that it did not matter what the law was, the first defendant could do what he liked and it was not reasonable at the time. She said it was unnecessary. She was not a threat to him. She did not resist any arrest. She did not verbally abuse him. She physically was in a weak state. It was obvious to her at that time that it was malicious and she was really scared about being put in the lock-up being pregnant. Further with her hands behind her back she could not put her hand on her belly to protect her child. [21] The plaintiff also said earlier that day she had been to an oncologist to see if the pregnancy was going to be viable or not because if the pre-cancerous cells had got -- 5 of 21 -- 6 worse there would be a question about whether she would have to terminate the pregnancy. She saw this doctor at the Wesley Hospital at about 3.45 pm. The defendants in their defence admit the plaintiff said at least at some stage she had been “to” hospital rather than “in” hospital. [22] Further the plaintiff gave evidence about previous contacts with the first defendant. The plaintiff said there were between 15 and 20 occasions. The plaintiff did not give evidence of each of those occasions. The plaintiff who appeared unrepresented at the trial told me she considered as she did not have a tape of the conversations on these other occasions as there was in this case there was no point pursuing these other occasions. [23] The plaintiff did give evidence of a couple of occasions. She said on these occasions the questioning would go beyond just general police questioning. It seemed deliberate. The plaintiff said the first defendant had an unusual interest in her life. [24] When the first defendant gave evidence he said on 16 March 2006 he and Constable Mann were at a job at a location of an offending vehicle. Constable Mann was writing a ticket for the vehicle and the first defendant was standing on the footpath when he saw a vehicle that he was familiar with and the lone person in the vehicle was the plaintiff. He said something to Constable Mann and he got into the vehicle and took off in the direction that he saw the vehicle travel. They looked for the vehicle and could not find it. He rang a phone number and got an address and went to that address and located the plaintiff. [25] The first defendant said the plaintiff had made many statements to the police. Some of these included the fact that she was pregnant, she was not well, she had been in -- 6 of 21 -- 7 hospital. After travelling some distance in the police car she made a claim that she was going to be sick. The plaintiff was permitted to swing around and lean out. She said that she was going to be sick. She was under his observation the whole time and at no time did she vomit. At no time did any fluid of any sort come out of her mouth or out of her nose. She claimed that she was uncomfortable and he recalled some attention was given to the handcuffs. [26] The first defendant also said he was 50 m away from the vehicle he saw being driven by the plaintiff. He said “it was Ms Eaves”. He also said he has known Ms Eaves for quite some time over work related matters and he has been in her presence a few times and is fairly familiar with what she looks like. He did say to the question what the driver was wearing that in a vehicle you cannot see much above about “here” (indicating the top of her shoulder region) and he could only see what you could see of a person in the vehicle above door height. [27] When the plaintiff gave evidence she said her partner was driving and he has similar length hair and colour hair to her. She also said the windows to her vehicle were tinted. [28] The first defendant also dealt with some occasions before 16 March 2006 when he had contact with the plaintiff over traffic matters. He denied there had been contact between 15 and 20 occasions. He said there was documentation for every time he had intercepted the plaintiff or spoke to her. He said there would be nine occasions that there had been contact in the course of his work. [29] When cross-examined to the effect of why he did not issue a notice to appear he said during all of his checks and preparation around the plaintiff‟s numerous contacts with -- 7 of 21 -- 8 him it came to his knowledge that the plaintiff had a previous “failed to appear.” Therefore, because of the existence of that “failed to appear” there was a likelihood the plaintiff would again fail to appear. He said the law changes then in that it extends an already existing power of arrest to support even further the arrest because of the previous fail to appear and that the antiquated summons system and the newer notice to appear system would be ineffectual and that is standard operating procedure. [30] Regarding the “failed to appear” it was accepted by the plaintiff that was on her record. However, she gave no evidence about the reasons why she failed to appear. That may be because this happened a long time ago. There was cross examination about being given a notice to appear on 15 October 2003. The plaintiff denied ever being given a notice to appear. She accepted she had given police a false name and address but said she had cleared this up with the police by going in and seeing a police officer and admitting she had given a false name and address. [31] In her submissions at the end of the trial the plaintiff said in December 2003 she was called by the Fortitude Valley Police Station and was advised that she had a failing to appear on her record. She had no idea what they were talking about and went to the Station and it was cleared up in an efficient, decent manner and fairly. She was not charged for failing to appear. [32] When asked if he accepted that he might have made a mistake about the plaintiff being the driver the first defendant said “no” and said that he has known the plaintiff for sometime and he was not that far from where the car was and his observations skills are honed to a high degree because of his employment he was in at the time and -- 8 of 21 -- 9 he rarely made mistakes in his working life in that employment. He said it is a highly skilled area of work. [33] The first defendant later agreed he has previously issued the plaintiff with a notice to appear and that was an option when he came into the plaintiff‟s home. He said that was sufficient in 2004. He said the “failure to appear” changed his options as to how to proceed. Although the first defendant did not know when he found out about the failure to appear I took his evidence to be he found out about it after he had issued the notice to appear in 2004. The failure to appear is agreed to have occurred on 8 December 2003. [34] When questioned about a prior occasion when the first defendant was speaking to the plaintiff in her office he said as to the reason for being there that he was interviewing a recidivist disqualified driver, investigating further offences discovered from paperwork from investigation and attempting to put that person before the court. [35] The plaintiff put to the first defendant in cross-examination that when he handcuffed her he was being spiteful. The first defendant said he handcuffed her to follow police procedures and powers given to him by a failed to appear warrant. The first defendant agreed there had been verbal slanging matches between the plaintiff and the first defendant but he said it was from the plaintiff‟s side not from his side. It was put the first defendant was abusing police powers at best to which he replied that The Police Powers & Responsibilities Act and a fail to appear warrant and a recidivist offender would say no. [36] The first respondent also said regarding his decision to arrest the plaintiff that this would provide a more substantial penalty if the plaintiff failed to appear because -- 9 of 21 -- 10 going through the Watch House brought into play the Bail Act rather than giving the plaintiff a notice to appear which did not provide any penalty if she failed to appear. [37] The plaintiff accepted her traffic history was appalling. It is agreed that between 7 January 2000 and 26 October 2004 she committed 30 traffic offences. As far as disqualified driving is concerned on 21 January 2003 she was disqualified from driving for six months. However, she committed the offence of stop contrary to no stopping sign on 7 February 2003 and “use of or permit use of unregistered vehicle” on 2 June 2003. She was disqualified for six months on 20 February 2004. She again committed the offence of disqualified driving on 28 February 2004 and again on 17 May 2004. She had driven on other occasions whilst disqualified, although not charged with disqualified driving. It was on 2 June 2004 that she was disqualified for four years for a number of offences. This was the disqualification the first defendant alleged was breached by the plaintiff on 16 March 2006. [38] When giving evidence the plaintiff said regarding her traffic history that she had learned her lesson, a hard lesson, but as she had not up to 16 March 2006 a period of about two years committed any further offences it was a lesson that was learnt. [39] However the plaintiff‟s traffic history shows on 31 July 2008 after getting her licence back she committed a speeding offence and the day after on 1 August 2008 committed another speeding offence and on 5 September 2008 committed the offence of “driver use handheld mobile phone”. For each of these offences she lost three points. Her licence was suspended then on 17 November 2008 until 16 February 2009. -- 10 of 21 -- 11 [40] The plaintiff called Dr Brown her general medical practitioner. Dr Brown‟s evidence was that during the plaintiff‟s pregnancy she was suffering hyperemesis which basically means a lot of vomiting and is associated with the pregnancy. Each time Dr Brown saw the plaintiff she was nauseated on a daily basis and vomiting on a daily basis and required medication. The plaintiff was prescribed wafers that dissolved on her tongue because she could not take tablets as she could not keep the tablets down. Dr Brown had seen the plaintiff on 7 February 2006 and on three or four occasions a month until the last episode on 26 May 2006. The plaintiff had at some stage been to hospital needing intravenous fluids because of vomiting. Dr Brown‟s notes confirmed the plaintiff had been to see a Dr Nicklin at the Wesley Hospital on 16 March 2006. [41] I accept Dr Brown‟s evidence and accept at the time of the plaintiff‟s arrest the plaintiff was pregnant and feeling sick. I accept the plaintiff was four months pregnant at the time of her arrest. [42] The principles for the tort of false imprisonment were stated by Lyons J in Ferguson v State of Queensland & Anor [2007] QSC 322 where at paragraphs 13, 14 and 15 her Honour said:- “13 An action for false imprisonment is essentially a trespass to the person and an action lies where a plaintiff has been wrongfully restrained. To establish the tort it is necessary to show that the plaintiff has submitted to the defendant‟s power. It is not necessary however for the defendant to have used force and acts or words are sufficient where a plaintiff believes that force would be used if he does not submit. The imprisonment must also be intentional. 14 In relation to the onus of proof it is significant that once the imprisonment is proven by the plaintiff then the onus passes to the respondents and the respondents must then establish -- 11 of 21 -- 12 that the imprisonment was lawful. In Carnegie v State of Victoria the Victorian Full Court held if a plaintiff establishes that there was an imprisonment the plaintiff will succeed in the action unless the defendant establishes that the imprisonment was excused or justified. „The gist of the action for false imprisonment is the mere imprisonment. As a result the plaintiff carries the burden of establishing no more than imprisonment. He need not prove it was unlawful. If imprisonment is proved it is for a defendant if he is to escape liability to prove a lawful justification for the imprisonment either at common law or by statute‟. 15 The authorities also establish that once the false imprisonment is established there is no requirement for the plaintiff to prove that actual damage has been suffered as a result of the imprisonment. The mere occurrence of the imprisonment is sufficient.” [43] The unreported decision of Carnegie v State of Victoria has been applied by O‟Loughlin J in Cubillo v Commonwealth (No. 2) (2000) 183 FCR 1 at 354-355 and by Kirby J in Ruddock v Taylor (2005) 222 CLR 612 at 650-651. [44] In the statement of claim the plaintiff alleges the first defendant breached s 198(1) of the Police Powers & Responsibilities Act 2000 (PPRA) as it was numbered in reprint 4F. The section is as follows:- “Chapter 6 Arrest and custody powers Part 1 Arrest without warrant 198 Arrest without warrant (1) It is lawful for a police officer, without warrant, to arrest an adult the police officer reasonably suspects has committed an offence if it is reasonably necessary for 1 or more of the following reasons - (a) to prevent the continuation or repetition of an offence or the commission of another offence; -- 12 of 21 -- 13 (b) to make inquiries to establish the person‟s identify; (c) to ensure the person‟s appearance before a court; (d) to obtain or preserve evidence relating to the offence; (e) to prevent the harassment of, or interference with, a person who may be required to give evidence relating to the offence; (f) to prevent the fabrication of evidence; (g) to preserve the safety or welfare of any person, including the person arrested; (h) to prevent a person fleeing from a police officer or the location of an offence; (i) because the offence is an offence against section 444 or 445;1 (j) because the offence is an offence against the Domestic and Family Violence Protection Act 1989, section 80;2 (k) because of the nature and seriousness of the offence; (l) because the offence is – (i) an offence against the Corrective Services Act 2000, section 103(3),3 (ii) an offence to which the Corrective Services Act 2000, section 104 applies.4” [45] The defendants rely upon paragraphs (c) and (k) of s 198(1) of the PPRA to justify the arrest. 1 Section 444 (Offence to assault or obstruct police officer) or 445 (Offence to contravene direction or requirement of police officer). 2 Domestic and Family Violence Protection Act 1989, section 80 (Breach of order or conditions). 3 Corrective Services Act 2000, section 103 (Persons near prisoners). 4 Corrective Services Act 2000, section 104 (Temporary detention for security offences). -- 13 of 21 -- 14 [46] There is a conflict between the plaintiff on the one hand and the first defendant and Constable Mann on the other hand as to who put the handcuffs on the plaintiff. The evidence of Constable Mann supports the evidence of the first defendant on this point. [47] Further when the plaintiff was giving evidence she did not say in chronological order that she told the first defendant she was pregnant and very sick. I had to remind her about that by way of some assistance to an unrepresented litigant. However the audiotape bears out that she did say that she was pregnant and sick at least and the defendants agree with this in their defence. [48] Also when the plaintiff gave evidence she did not give detailed evidence of the 15 to 20 occasions she said she had contact with the first defendant nor did she give detailed evidence of the conversations that may have occurred on any of those occasions including alleged references by the first defendant to the plaintiff‟s “boyfriends”. However I consider the plaintiff‟s evidence to be to that effect when she said she was questioned whether she was single or married and that the questioning would go beyond just general police questioning. [49] There is also of course the plaintiff‟s appalling traffic history before 16 March 2006 and since then when she was given her licence back after serving most of the four year disqualification. Included in her traffic history is also the occasion she gave a false name and address, although she says she rectified that offence. [50] The plaintiff did not call her former partner to give evidence. The plaintiff told me the relationship with her former partner was not good and he would not co-operate -- 14 of 21 -- 15 about an audio file of a previous conversation between the plaintiff and the first defendant that may have been in existence. [51] There is also the evidence from the records of how long the plaintiff was restrained compared to the plaintiff‟s recollection. I consider if the plaintiff was affected emotionally by the arrest that could affect her perception of how long she was restrained. [52] On the other hand I consider the first defendant was not even handed about the plaintiff. The first defendant appeared to be adverse to the plaintiff. For example, when he arrested the plaintiff, it would appear he did not believe what the plaintiff told him. He said in evidence the plaintiff “claimed” to be pregnant and sick rather than say she said she was pregnant and sick. Further, when explaining why he attended the plaintiff‟s office on an earlier occasion he said he was there to see a “recidivist” offender. He used this description on another occasion in his evidence when justifying the arrest of the plaintiff. While this description may have been accurate to a point, when he arrested the plaintiff she had not committed an offence for nearly two years. [53] Further, when I consider the plaintiff‟s evidence that her partner had similar hair to her and the car windows were tinted (which I accept), I consider the first defendant may have made a mistake in his identification of the plaintiff. The first defendant would not accept he could have made a mistake. He claimed powers of accuracy that I do not accept can be justified. -- 15 of 21 -- 16 [54] Further, the first defendant relied on the “failed to appear” when he had no knowledge of the circumstances behind the “failed to appear”. The “failed to appear” occurred before he gave the plaintiff a notice to appear in 2004 which she obeyed. [55] As for Constable Mann, often in her evidence she seemed to have no recollection of what happened and was unable to say something did or did not happen. I am not confident in Constable Mann‟s evidence. [56] Having considered the evidence, despite the factors I have mentioned relevant to the assessment of the plaintiff‟s evidence, I accept the plaintiff is a truthful witness. In particular I accept her evidence about her past dealings with the first defendant and that the first defendant handcuffed her with her hands behind her back and laughed at her when she was vomiting. I do not accept the evidence of the first defendant or Constable Mann where their evidence conflicts with that of the plaintiff. [57] I find the plaintiff was not the driver of the vehicle seen by the first defendant on 16 March 2006. [58] I find the plaintiff was intentionally imprisoned by the first defendant. That is, the imprisonment was not an accident. [59] I find the first defendant when exercising his discretion failed to take into account a number of relevant considerations. [60] That is, the first defendant did he not take into account that he had no knowledge of the circumstances of the fail to appear. Further, he had given the plaintiff a notice to appear in 2004 which the plaintiff obeyed and the notice to appear post dated the -- 16 of 21 -- 17 “failed to appear”. Further, the plaintiff had not committed any traffic offence for a period of about two years. Further, she had no criminal history. Further, she was at home and had not been involved in an accident. Further, she was pregnant and sick and had been to hospital that day. Finally, he may have made a mistake as to the identification of the plaintiff as the driver of the vehicle. [61] Although the first defendant gave evidence to the effect he wanted to ensure the plaintiff appeared before a court, I do not accept that was his motivation when he arrested the plaintiff. Further, the defendant said the alleged offence was not a “simple offence” as far as traffic offences are concerned. I do not accept there was anything about the alleged offence or its seriousness in the circumstances to justify arresting the plaintiff. [62] I find the first defendant made a mistake when he identified the plaintiff as the driver of the vehicle. I do not accept he made an honest mistake. That is because I consider he behaved in a way towards the plaintiff that showed he did not like the plaintiff. This affected his judgment when deciding whether the plaintiff was the driver and whether to arrest her and handcuff her. [63] I do not accept he had a reasonable belief in the necessity to arrest her nor was there an objective existence of one or other of the reasons set out in s 198(1)(c) or s 198(1)(k) of the PPRA. (See Couchy v Birchley [2005] QDC 334 para 58 per McGill DCJ). [64] On the basis of the onus being upon the first defendant I am not satisfied it was reasonably necessary to arrest the plaintiff without warrant and I am not satisfied there was excuse or justification for this arrest. -- 17 of 21 -- 18 [65] Therefore I find the first defendant guilty of false imprisonment of the plaintiff. I find the second defendant vicariously liable for the first defendant‟s tort. [66] The plaintiff claims compensatory damages, aggravated damages and exemplary damages. [67] The plaintiff said she was concerned with her hands behind her back. She became so upset because being pregnant it is instinct to want to put your hand on your belly to protect your child. [68] The plaintiff was also walked handcuffed in front of people from her unit to the police car. [69] At the Watch House she said she felt degraded. She felt sick. She felt faint. She felt panicked. Her heart was racing. Anxiety just overcame her. She had never been boxed in like that before and she just felt that it was just unfair and unreasonable. [70] I have ruled that claims by the plaintiff for pain and discomfort are not to be considered by me as they are personal injury claims within the Personal Injuries Proceedings Act 2002. It is agreed the plaintiff did not follow the procedures provided for by that Act with the consequence that damages cannot be awarded for those matters. [71] In Coleman v Watson and Shaw [2007] QSC 343 Cullinane J regarding a false imprisonment case said at paragraph 53 “I think it is fair to say that a reading of the authorities justifies the conclusion that damages are in cases of this kind, primarily -- 18 of 21 -- 19 awarded to compensate for a sense of outrage, injury to feeling, humiliation and disgrace, indignity and the like. [72] Cullinane J also in that case referred to Lord Diplock‟s judgment in Cassell & Co. Ltd v Broome (1972) AC 1027 at pp 1124-1126 where the nature of damages and principles applicable to them were explained. He said:- “The three heads under which damages are recoverable for those torts which damages are “at large” are classified under three heads: 1. Compensation for harm caused to the plaintiff by the wrongful physical act of the defendant in respect of which the action is brought. In addition to any pecuniary loss specifically proved the assessment of compensation may itself involve putting a money value upon physical hurt, as in assault, upon curtailment of liberty, as in false imprisonment or malicious prosecution, upon injury to reputation, as in defamation, false imprisonment and malicious prosecution, upon inconvenience or disturbance of the even tenor of life, as in many torts including intimidation. 2. Additional compensation for injured feelings of the plaintiff where a sense of injury resulting from the wrongful act is justifiably heightened by the manner in which or the motive for which the defendant did it. This Lord Devlin calls “aggravated damages”. 3. Punishment of the defendant for his anti-social behaviour to the plaintiff. This is what Devlin calls “exemplary damages”.” [73] Further in Coleman Cullinane J said exemplary damages are to be assessed separately from compensatory damages (Henry v Thompson [1989] 2 Qd R 412). His Honour also referred to the nature of exemplary damages and the principles governing the award of such damages discussed by the High Court in Lamb v Cotogno (1987) 164 CLR 1. [74] In Lamb v Cotogno the High Court said at p 8: “Aggravated damages, in contrast to exemplary damages, are compensatory in nature, being awarded for injury to the plaintiff‟s -- 19 of 21 -- 20 feelings caused by insult, humiliation and the like. Exemplary damages, on the other hand, go beyond compensation and are awarded “as a punishment to the guilty, to deter from any such proceedings for the future, and as a proof of the detestation of the jury to the action itself”… [75] In the present matter I award the plaintiff for compensatory damages for false imprisonment $30,000. [76] As far as aggravated damages are concerned I accept the plaintiff was embarrassed to walk in handcuffs past people where she lived some of whom may have known her and felt degraded and felt sick and was overcome by anxiety at the watch house and felt the arrest was unfair and unreasonable. Even as the plaintiff gave her evidence before me on a couple of occasions she was overcome by emotion as she recalled the events of the arrest. I consider she is still affected by the arrest. I allow $20,000 for aggravated damages. [77] I consider there should be an award of exemplary damages in this case. The first defendant acted towards the plaintiff in a way that showed he did not like the plaintiff. While the work of a police officer is very difficult, it is wrong for a police officer to use his or her power of arrest and hand cuffing when he or she is not even handed towards the citizen and does not like the citizen. I allow for exemplary damages the sum of $10,000. [78] I give judgment for the plaintiff against the first defendant for the sum of $60,000 together with interest at the rate of 10% for 5.5 years producing a figure of $33,000 and a total of $93,000. I give judgment for the plaintiff against the second defendant for the same sum. -- 20 of 21 -- 21 [79] I will hear the parties on the question of costs. -- 21 of 21 --