Eastlake v Capner[2024] QSC 136

SUPREME COURT OF QUEENSLAND

1. [1]
   The plaintiff obtained default judgment on her claim for unliquidated damages for false imprisonment.  That default judgment was obtained on 24 May 2023.  The claim relates to the plaintiff’s mistreatment by the defendant, her former de facto husband.  The defendant was imprisoned in connection with some of those mistreatment events.  Neither he nor the Public Trustee, as temporary manager of his estate, filed a defence, nor has there been any appearance entered at any stage of the proceeding, including today. 
2. [2]
   The default judgment was expressly conditional on the damages being assessed.  It ordered that:

The defendant pay to the plaintiff damages to be assessed upon the plaintiff’s statement of claim, together with costs to be assessed, and that the damages be assessed by this honourable Court.

3. [3]
   The plaintiff’s claim is for damages plus aggravated damages and exemplary damages.  It is not a personal injuries claim.  It is a claim grounded in the commission of the tort of false imprisonment. 
4. [4]
   That tort likely first evolved as redress against wrongful incarceration, but it long ago extended beyond the jail context to broader societal contexts. It is constituted by a restraint of physical movement of another, whether by confining the person in or preventing the person from leaving a place by force, threat or coercion, without lawful justification.  It is a species of trespass to the person.  Unlike, say, negligence, giving rise to a claim of damages for personal injury, this is an intentional tort, and it carries a presumption that the natural and probable consequence of it is injury or damage.  Damages are at large.  Their purpose is reparation to the victim for having been deprived of the elementary and absolute right to personal liberty.
5. [5]
   Aggravated damages may be awarded for injury to the plaintiff’s feelings or dignity.  Given this is a tort in which that impact is inherent, the cut-off point between an apt figure for general damages and an apt figure for exemplary damages will rarely be clear – see, for example, the observations of Tobias JA in New South Wales v Delly (2007) A Crim R 538 555-556.  It is thus unsurprising the Courts have inclined to making combined singular awards for general and aggravated damages in such cases.  I will do so here.  Exemplary damages may be awarded to punish the misconduct.  Interest may be awarded for general and aggravated damages but not for exemplary damages – see TCN Channel 9 Pty Ltd v Anning (2002) 54 NSWLR 333.
6. [6]
   The statement of claim on which damages fall to be assessed pleads 10 domestic violence events.  It is the defendant’s conduct in the seventh, eighth, ninth and 10^th events which is pleaded, in respect of each, as causing the plaintiff to be unable to leave and having been perpetrated without lawful justification. 
7. [7]
   The defendant has been punished in the criminal jurisdiction for events 7, 8 and 9, therefore only leaving event 10 live as a pathway to exemplary damages – see Gray v Motor Accident Commission (1998) 196 CLR 1.
8. [8]
   The events pleaded as events 1 to 6 in the statement of claim occurred on 7 April 2010, 24 January 2011, 20 April 2012, 5 May 2013, 22 and 23 March 2016.  They involved an array of acts of repeated violence by the defendant upon the plaintiff.  Their detail need not be recited, their relevance being that by the time of the acts grounding the damages claimed, the plaintiff knew of the defendant’s dangerousness and the grave risks to her of trying to resist or escape him when his anger, abuse, threats and violence were occurring.  They are, in effect, of contextual assistance in understanding the coercion worked upon the plaintiff at the time of the events the subject of the claim and in informing my assessment of the gravity of the torts constituted by those events.
9. [9]
   Turning to the events, the seventh event occurred on 9 July 2017.  The plaintiff and defendant were in a bedroom at a home on the property where they both resided.  The defendant knocked the plaintiff off the bed, punching her while she was on the ground.  When she stood up, he pulled her onto the bed and continued to hit her and then threw her back onto the ground.  He called her insulting and degrading words and punched her further in the head.  He thereafter used conflicting language, literally telling the plaintiff to leave but in truth coercing her from leaving.  For example, he said to, “Get the fuck out of the bedroom.”  On the other hand he said he would retrieve a knife and stab her, and he told her contacting the police would cause him to “go over the edge”, and that he would kill her and another woman before killing himself.  He in fact retrieved a knife, and the plaintiff asked him not to stab her.  He told her to run, saying, “Try to outrun me.  I’m going to run you down.  See how far you get before I stab you.”
10. [10]
    It is obvious, even after the physically violent events in the bedroom, which plainly involved deprivation of the plaintiff’s liberty, that his conflicting words and conduct in the aftermath would also have had the effect of coercing her into not leaving the place.
11. [11]
    In respect of the eighth event, which occurred on about 24 November 2017, they were again in a bedroom at the home.  There was an argument.  He abused her and punched her in the spine, causing her to go to the floor.  There, using his fists wrapped within a pillow, he punched her about 10 times.  He pulled her up from the ground by the hair and held his fist against her face.  She went to check upon one of their children.  He followed her, punching her in the head, spitting in her face, dragging her into the bedroom, throwing her onto the bed, throttling her about the throat, spitting in her face, before eventually leaving the bedroom.  However, soon after, he returned and punched her to the cheek.  He kicked her in the back several times, telling her she should be making him happy.  Self-evidently, throughout this conduct towards her she was physically compelled to remain in the range of the defendant’s presence and thus, again, falsely imprisoned.
12. [12]
    Each of events 7 and 8 involved assaults.  I approach the task of assessment of damages conscious I am not also dealing with the tort of battery.  However, the assaults were an inherent aspect of the acts which occasioned the false imprisonment.  They inform the false imprisonment’s impact upon the plaintiff’s feelings and dignity, giving rise, as they would have, to an extraordinarily traumatic atmosphere.  I borrow the latter description from Bulsey & Anor v State of Queensland [2015] QCA 187 [112], where it was used in reference to the aggravating qualities of the conduct arising from a short period of terrifying aggressive conduct by armed police on unlawfully entering the Bulsey’s home and ordering the occupants about. 
13. [13]
    I found that case of assistance in gauging an apt range of award for the circumstances of the present case.  In my conclusion, setting interest to one side for the moment, for event 7, the combined general and aggravated damages award should be $45,000.  I reach the same conclusion as to the award for event 8.
14. [14]
    Event 9 was much more serious.  It occurred on 16 September 2018.  They were at their home property when he told her she was on his list, a reference to a hit list of people he had previously told her he intended to kill with a shotgun.  He took a shovel from the backyard and put it in the vehicle.  His conduct clearly intended to convey that he was going to kill her.  The plaintiff was holding on to a pole in the carport.  He told her to, “Get in the fucking car” and that he was going to, “Smash her head into the pole”.  He held a knife in front of him, saying, “Don’t run.  You know I can catch you.  Do you want the kids to see it?”  She walked to the driveway.  He followed, saying, “Do you want me to do it out here, where everyone can see?”  She said, “You’re going to do it to me anyway.  I’d rather be here, so the kids can bury me”.  He then grabbed her and dragged her into a shed at the property, where she lost consciousness.  Her affidavit explains her head likely hit a cupboard as he dragged her in.
15. [15]
    She “came to” inside a bedroom in the shed, with the defendant standing over her, holding a sledgehammer.  He swung it at her head.  It hit the concrete floor, close to her head.  Her affidavit explains she passed out again.  When she came to he was filling a 15-litre water container in a way which caused her to think he was going to waterboard her, something he had done in the past.  She said, “You don’t have to do this.  Why are you doing this?”  He said, “To teach you a lesson”.  He grabbed her by the hair, placed his hand over her mouth and face.  She could not breathe and thought she was going to die.  He then took a knife and held it across her throat, saying, “It only takes 15 seconds for you to bleed out”.  He pointed the knife at her face, telling her to be quiet.  He told her to get up and wash her face and announced that they were going to the car.  She walked behind him whilst he held the knife.  He fetched a set of jumper leads, telling her to walk to the car and to smile.  It was around then that the police arrived, sirens blazing, and the defendant ran off.
16. [16]
    Once again, throughout these events, it is self-evident that even in the intervals between the physical violence done to her, the combination of that violence with the other coercive remarks meant that the plaintiff was, contrary to her will, unable to leave.  This event involved longer detention in much more terrifying circumstances than in events 7 and 8.  It warrants a much more substantial award.  In my conclusion, that combined general and aggravated damages award should be $130,000.
17. [17]
    Finally, I turn to event 10.  It occurred quite some years earlier and could have attracted a limitation of action defence, a topic to which I will return after assessing damages.  It occurred in about 2013, at their home.  The exact date is unknown.  I will do my interest count from the last day of the year for that reason.  The defendant held the plaintiff down while pushing her face into a sofa.  She could not breathe.  He also turned her around and poured water into her face so that she could not breathe.  He hit and beat her up over a period described in the statement of claim as a period of hours, during which she could not leave.  This pleaded temporal description is consistent with the affidavit evidence of the plaintiff that the episode spanned about four hours.
18. [18]
    This event was somewhat more prolonged than events 7 and 8 but is otherwise broadly comparable to them.  In my conclusion, the appropriate combined general and aggravated damages award for that event is $50,000. 
19. [19]
    The appropriate award of exemplary damages, to punish what was very serious misconduct, should be $20,000. 
20. [20]
    Returning to the limitation point, s 10 Limitation of Actions Act 1974, provides an action founded on tort “shall not be brought after the expiration of six years from the date on which the cause of action arose”.
21. [21]
    The cause of action for event 10 appears to have arisen from its date of occurrence in 2013.  The claim was not filed until about nine years later, on the 12^th of August 2022.  While the plaintiff was likely deterred from filing her claim by the defendant’s ongoing domestic violence in many of the interim years, that does not appear to bear upon the issue of when the cause of action arose under the Act.  Nor, for that matter, does it appear to be a basis for the granting of an extension under the Act.  On the face of it, it may be that the plaintiff knew or ought reasonably have known she was not entitled to bring the action in respect of event 10.  However, I express no concluded view about that, for its potential relevance would be in the context of an attempt to set aside a default judgment irregularly obtained by reason of the judgment resulting from the plaintiff’s obtaining of a judgment she knew or ought reasonably have known she was not entitled to – see Cusack v De Angelis [2008] 1 Qd R 344 at 352 [43].
22. [22]
    In the present context, the proper approach is to determine the assessment of damages for the matters upon which judgment was obtained.  This would include, then, the assessment in respect of event 10.  In this context, the proper guiding principle is that stated by Gummow and Kirby JJ in The Commonwealth v Mewett (1997) 191 CLR 471 534-535:

“[A] statutory bar, at least in the case of a statute of limitations in the traditional form, does not go to the jurisdiction of the Court to entertain the claim but to the remedy available and hence to the defences which may be pleaded. The cause of action has not been extinguished. Absent an appropriate plea, the matter of the statutory bar does not arise for the consideration of the Court. This is so at least where the limitation period is not annexed by statute to a right which it creates so as to be of the essence of that right.”

Also see WorkCover Queensland v Amaca Pty Ltd & Anor (2010) 241 CLR 420. 

23. [23]
    The upshot was neatly summarised by Gageler and Gordon JJ in Price v Spoor (2021) 270 CLR 450, 467:

“The way that sections 10 and 13 of the Limitation Act give effect to the Act’s legislative purpose of ensuring finality in litigation – a legitimate public policy objective – is by conferring a right on an individual defendant in a particular case to elect to plead a limitation period. … [I]t is always left to an individual to choose whether to forgo the right conferred by statute.”

24. [24]
    In the present case, the defendant’s choice not to engage in defence of the litigation means he has foregone a right conferred by statute.
25. [25]
    Finally, then, as to the appropriate interest calculation, the course ultimately urged is that it is calculated at four per cent for each award from the date of the event or, at least logically, the day after the relevant event.  That approach is premised upon the Court of Appeal’s decision in Bulsey & Anor v State of Queensland [2016] QCA 158.  McMeekin J, with whom Fraser JA and Atkinson J agreed, noted the High Court’s approval of the longstanding practice of assuming a rate of four per cent in Queensland, the so-called Gogic approach – see MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657, 663-664; and Camm v Salter [1992] 2 Qd R 342, 343-344.
26. [26]
    His Honour also referred to the approach of, in some instances, halving the application of a rate where it spanned over a period of essentially accumulating loss or damage, attracting the application of the interest.  His Honour drew the distinction between that scenario and that which presented itself both in Bulsey and in the present case, where there is a clearly identifiable point in time where the loss was suffered and the right for the accrual of interest commences.  In such a situation, Bulsey stands as authority binding me that I ought take the approach of calculating interest upon each of the relevant awards for those events at four per cent from each of the respective four events.  I will thus calculate interest by reference to the day after each of those events to today.

27. [27]
    My orders are:

1. Judgment for the plaintiff in the amount of $364,203.72, constituted by the following awards:

1.  In respect of pleaded event 7:

Damages         $ 45,000.00

Interest at four per cent from 10 July 2017   $ 12,336.78

2.  In respect of pleaded event 8:

Damages         $ 45,000.00

Interest at four per cent from 25 November 2017  $ 11,656.24

3.  In respect of pleaded event 9:

Damages         $130,000.00

Interest at four per cent from 17 September 2018 $ 29,456.59

4.  In respect of pleaded event 10:

Damages         $ 50,000.00

Interest at four per cent from 31 December 2013  $ 20,754.11

Exemplary damages       $ 20,000.00

2.  The defendant will pay the plaintiff’s costs, to be assessed on a standard basis.