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Damages: Intentional acts + exemplary damages.


Spedding v State of New South Wales [2022] NSWSC 1627 (on Caselaw).

Mr  Spedding claimed damages for malicious prosecution, misfeasance in public office, collateral abuse of process and false imprisonment. The matter is included here for two main reasons.

Firstly, the State had submitted that each cause of action pleaded by Mr Spedding has “nothing to do with an intention to cause injury or death”. However Harrison J said in relation to section 3B(1)(a) at [318] – [321]:

I agree with Mr Spedding’s submission that this is plainly incorrect because it appears to be based on an assumption that the word “injury” in s 3B(a)(a) of the Civil Liability Act is limited to “personal injury” as defined in s 11. The definition is not limited in this way: State of New South Wales v Ibbett (2005) 65 NSWLR 168; [2005] NSWCA 445 at [5]-[11]. The deprivation of liberty, anxiety, distress, embarrassment and humiliation flow from the torts which have been pleaded, particularly malicious prosecution. Those who committed these torts intended to do so. For example, Detective Brennan intended to arrest and charge Mr Spedding, acts that necessarily involved depriving him of his liberty and in that context causing him anxiety and distress. These are things falling within the definition of “injury” in s 3B(1)(a) of the Act and at least in part led to Mr Spedding sustaining a psychiatric condition. The fact that the police officers intended to prosecute Mr Spedding and in that context deprive him of his liberty, resulting in his psychiatric condition, is sufficient to satisfy s 3B(1)(a) with the consequence that Part 2 of the Act does not apply: s 11A provides that Part 2 applies to and in respect of an award of personal injury damages, except an award that is excluded from the operation of the Part by s 3B. Section 16 of the Act therefore does not apply to the assessment of Mr Spedding’s damages for non-economic loss.

Secondly, the trial judge made a significant award for exemplary damages – $300,000. The trial judge said at [315]:

I also consider that Mr Spedding is entitled to damages in the sum of $300,000.00 under this heading, calculated so as to punish the State for prosecuting him where there was no warrant for doing so and when the decision to do so was not merely the result of a well-intentioned but mistaken appreciation of the true facts. It is in my view difficult to imagine a more seriously improper tactic in the purported exercise of legitimate police powers than to arrest and charge a man in order to put pressure upon him in relation to an ongoing but unrelated investigation, and even then to persist with the prosecution long after the desired strategic advantage has patently evaporated. In a paraphrase of Inspector Jubelin’s published recollections, it was inevitable that Mr Spedding would be damaged but such was the price of his search for a killer. I reject that sentiment as illegitimate, wholly unacceptable and inappropriate. Its repetition should be disavowed and deterred in the strongest possible terms.

An award of $200,000 for aggravated damages was also made ([313])..

[BillMaddensWordpress #2067]


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