Supreme Court New South Wales

• Medium Neutral Citation: Clavel v Savage (No 4) [2014] NSWSC 463
• Hearing dates: 25, 28 - 29 October 2010; 1 - 5, 8 - 12, 15 - 19, 22 - 26, 29 - 30 November 2010; 3, 6 - 10, 13 - 17 December 2010; 21 - 23 February 2011; 11 March 2011; 9 May 2011; 22, 24 June 2011; 1 June 2013, 18 June 2013, 28 August 2013, 13 December 2013.
• Date of orders: 23 April 2014
• Decision date: 23 April 2014
• Jurisdiction: Common Law
• Before: Rothman J

Decision

(1) Judgment for the first and second defendants.

(2) The plaintiff shall pay the first and second defendants' costs of and incidental to the proceedings.

(3) The plaintiff shall pay 80% of the third defendant's costs of and incidental to the proceedings on a party/party basis up to and including 22 December 2010 and thereafter on an indemnity basis.

(4) Proceedings otherwise dismissed.

• Catchwords: TORT - intentional infliction of emotion distress - liability and quantum against first and second defendant - application of principles to facts found in earlier judgment; COSTS - Offer of Compromise - insufficient actual compromise - later Calderbank letter - indemnity costs on basis of Calderbank letter
• Legislation Cited: Evidence Act 1995 (NSW)
• Cases Cited: Calderbank v Calderbank [1975] 3 All ER 333; Clavel v Savage [2013] NSWSC 775; Nationwide News Pty Ltd v Naidu [2007] NSWCA 377; (2007) 71 NSWLR 471; Wilkinson v Downton [1897] 2 QB 57
• Category: Consequential orders (other than Costs)
• Parties: Jean Luc Clavel (First Plaintiff); Sarah Clavel (Second Plaintiff); John Savage (First Defendant); Kim Savage (Second Defendant); The State of New South Wales (Third Defendant)
• Representation: Counsel: D Baran/M Eirth (Plaintiffs); Self represented (First Defendant); Self represented (Second Defendant); P W Neil SC/G Giagios (Third Defendant); Solicitors: Dorrough Smart Solicitors (Plaintiffs); Self represented (First Defendant); Self represented (Second Defendant); Crown Solicitors' Office (Third Defendant)
• File Number(s): 2002/69251
• Publication restriction: None

Judgment

 

1 HIS HONOUR: On 14 June 2013, the Court, as presently constituted, issued judgment ("the earlier judgment", Clavel v Savage [2013] NSWSC 775) in this matter and set a timetable for further submissions relating to liability and quantum against the first and second defendants based upon the findings of fact in the foregoing judgment and in relation to costs for the entire proceedings.

 

2 Due to the issues associated with the unavailability of legal representatives for the first and second plaintiffs the timetable was not the subject of adherence and was altered on a number of occasions.

 

3 Notwithstanding the continuing unavailability of the instructing solicitor for the plaintiffs, the plaintiffs filed a submission dealing with these issues on 14 November 2013 and the first and second defendants filed a submission in reply on or about 6 and 9 December 2013 respectively. The third defendant's application in relation to costs was, in accordance with the timetable, made on or about 10 July 2013. The matter was listed for hearing in relation to the remaining issues on 13 December 2013. Despite the disadvantage to which the plaintiffs referred in dealing with evidence relating to costs, the plaintiffs did not seek for the matter to be further adjourned and the disadvantage was more theoretical than apparent, given the Court's acceptance of statements from the bar table relating to issues in dispute. As a consequence, the Court will deal with the matter on the basis of the acceptance of those statements from the bar table and the submissions made in writing and orally.

 

Case Against the First and Second Defendants

 

4 At [866] of the earlier judgment and following, the nature of the claim against Mr and Mrs Savage and the manner that it was pleaded was addressed. The cause of action against Mr and Mrs Savage was confined to intentional infliction of emotional distress. There was no cause of action against either of Mr or Mrs Savage in assault or battery, nuisance or trespass.

 

5 At one stage it was suggested that the reference at [79] of the Second Further Amended Statement of Claim to the acts of Mr and Mrs Savage in paragraphs [2]-[13] was "a typographical error". I do not accept the error was "typographical".

 

6 Nevertheless, as submitted correctly, the proceedings were conducted on the basis that the allegations of fact at [66]-[78] were the basis for the cause of action, the intention for which is pleaded at [79] and the damages from which are pleaded at [80] and [81]. I will consider the cause of action against Mr and Mrs Savage on that basis.

 

7 I reiterate that the only cause of action against Mr and Mrs Savage is a cause of action based upon the tort described in Wilkinson v Downton [1987] 2 QB 57. I have already stated that there is no claim against Mr or Mrs Savage in assault or battery; nor is there a claim in nuisance or trespass (except to the extent that Wilkinson v Downton is a trespass on the person).

 

8 The only "wrongful" conduct found against Mr and Mrs Savage (and for these purposes I do not differentiate between the first and second defendants) was described in the earlier judgment. The term "wrongful" was used in order to signify that no finding was being made that the conduct was tortious or gave rise to a cause of action. I found that:

 

(i) Mr Savage caused stones to be thrown onto the roof of Mr and Mrs Clavel's home in or about October 1999 (earlier judgment at [894]);

 

(ii) A laser beam was shone into the lounge room or home of Mr and Mrs Clavel by Mr Savage on or about 25 February 2000 (earlier judgment at [903]);

 

(iii) On or about 14 January 2000, Mr Savage yelled abuse to Mr Clavel including that he was "a sick man" and enquiring as to whether or not he had taken his medications (earlier judgment at [907]);

 

(iv) On or about 16 January 2000, Mrs Savage, in response to suggestive conduct by Mr Clavel accused Mr Clavel, of having a sexual problem and of being a paranoid psychotic (earlier judgment at [899] and [905]).

 

9 The issue arises as to whether that conduct is, or any of it, the basis for a cause of action as alleged.

 

10 I deal first with the incident of 16 January 2000. Before doing so, it is necessary to restate the conclusions as to the elements of the tort on which the plaintiffs rely.

 

11 In the earlier judgment at [36] I upheld the view that there is currently in Australia a tort of intentional infliction of harm, including psychiatric injury, the elements of which are:

 

(i) A deliberate act (hereinafter, "the conduct") by the putative tortfeasors;

 

(ii) An intention (including reckless indifference) to cause physical or psychiatric harm by the conduct;

 

(iii) The occasioning of harm (including psychiatric injury, but not mere distress) as a result of the conduct;

 

(iv) The harm being caused to a person to whom harm is intended (or a person in the immediate vicinity to whose harm the perpetrator is recklessly indifferent);

 

(v) In circumstances where the conduct was reasonably likely to cause harm in a normal person;

 

(vi) The putative tortfeasor has engaged in the conduct without justification or lawful excuse.

 

12 Dealing then with the events of 16 January 2000, the Court, in the earlier judgment, held that the conduct was confined to the exchange of abuse between Mrs Savage and Mr Clavel. The Court accepted the version of events recounted by Mrs Savage. In other words, the conduct about which complaint is made is in the following context.

 

13 Mrs Savage was hanging out washing. Mr Clavel made a suggestive motion (undoing his zipper), which ceased with the arrival of another. In response to the suggestive motion with his zipper and hand, Mrs Savage referred to Mr Clavel as a paranoid psychotic and to him having a sexual problem. The Court does not accept that, on that day, Mrs Savage made any other comment of any relevance.

 

14 The Court concludes that Mrs Savage's conduct was a reaction to the conduct of Mr Clavel. In those circumstances, and leaving aside any other element of the tort, the Court does not find that Mrs Savage's conduct was other than a reaction to the conduct of Mr Clavel, and in particular, was not performed with an intention to cause physical or psychiatric harm, nor a reckless indifference to the causing of physical or psychiatric harm.

 

15 While I will deal with the matter more fully in relation to the other conduct about which complaint is made, which analysis applies with greater force to the events, as I find them, on 16 January 2000, I also do not consider that this event, of itself, or in combination with other events, occasioned harm of the kind that is necessary, as discussed in the earlier judgment. Nor do I consider that the conduct in question was reasonably likely to cause harm in a normal person.

 

16 Moreover, given the provocative conduct of Mr Clavel, to which this was a reaction, it is not at all clear that the conduct of Mrs Savage, in relation to this particular incident, was without justification or lawful excuse.

 

17 As a consequence, the events that, in my finding, occurred on 16 January 2000, do not give rise to a cause of action for intentional infliction of emotional distress as that tort was described in the earlier judgment.

 

18 That which remains to be considered is the following conduct of Mr Savage: throwing stones onto the roof of Mr and Mrs Clavel's home in or about October 1999 (earlier judgment [894]); the exchange of abuse between him and Mr Clavel on or about 14 January 2000 (earlier judgment [899]-[900]); and the laser beam incident of 25 February 2000 (earlier judgment [901] and following).

 

19 The plaintiffs urged the Court to consider that conduct in context of the other events that were occurring at Mackerel Beach. The difficulty with such a course is that most of the other events about which the plaintiffs complain are not events the responsibility of which can be sheeted home to Mr or Mrs Savage. Further, most of them are matters about which there is no complaint on the pleadings (assuming, in that remark, that the pleadings claim damage from Mr and Mrs Savage beyond that which is contained in paragraphs 2 to 13 of the Further Amended Statement of Claim).

 

20 In the case of Mr Savage there are three episodes of conduct that I have found "wrongful": the throwing of stones onto the roof; the exchange of abuse; and the shining of a red laser beam into Mr and Mrs Clavel's house. It is necessary to deal with each of them individually and together, bearing in mind, also, the submission that each incident should be seen in the context of more general behaviour.

 

21 The elements of the Wilkinson v Downton tort make clear that it is not intended to arise from the exchange of abuse between persons. While such statements are deliberate acts they are not statements that would generally meet the criteria that the conduct would be reasonably likely to cause harm in a normal person.

 

22 As I have determined in the earlier judgment, Mr Clavel "gave as good as he got". There was an exchange of abuse, Mr Savage yelled abusive language, including that Mr Clavel was "a sick man" and enquiring whether he had taken his medication.

 

23 The pleading, necessarily, does not plead evidence; it pleads only fact. Nevertheless, the facts as found are that Mr Clavel also yelled abuse in what was an exchange between two adults. Other than the fact that Mr Savage's comments were deliberate, I am not satisfied of any other element, in relation to this incident, that would satisfy the elements that give rise to the cause of action under Wilkinson v Downton.

 

24 I deal next with the incident associated with throwing stones on the roof of the Clavels. Plainly, such conduct is a trespass. Mr Clavel does not sue in trespass. Nor does Mrs Clavel. Further, such conduct is plainly childish and discloses a significant immaturity of approach by Mr Savage. Does it also satisfy the elements for a claim in damages under intentional infliction of emotional distress?

 

25 Again, the throwing of the stones was a deliberate act, and therefore satisfies the first element. Further, the sixth element (as recited by me at [36] of the earlier judgment), which requires that the conduct be engaged in without justification or lawful excuse, is also satisfied.

 

26 The plaintiff has the onus of proof, as stated in the earlier judgment, and I am not satisfied on the evidence adduced in the proceedings that, to the extent Mr or Mrs Clavel suffer a psychiatric injury, and not mere distress, it is as a result of stones being thrown on the roof.

 

27 Even ignoring, for present purposes, the effect on the mental state of Mr Clavel of the childhood traumas suffered by him, it is unlikely that the stones on the roof, of themselves, would cause a psychiatric injury of the kind suggested. That is also true, leaving aside the reference to childhood trauma, of Mrs Clavel. Moreover, it is not conduct that would be reasonably likely to cause that kind of harm in a normal person. Nor do I consider that harm was in fact caused by this particular conduct, at least of itself. Further, even with other events, this conduct was not a substantial contributing factor to any injury.

 

28 Lastly, on the evidence before the Court, I cannot conclude that there was an intention (including reckless indifference) to cause physical or psychiatric harm (of the kind to which reference has been made).

 

29 The shining of the laser beam into Mr and Mrs Clavel's house is conduct of a more serious kind than the other incidents that I have already dealt with in this judgment. The incident itself was described by each of Mr Clavel, Mrs Clavel and their son Benjamin Clavel and the accounts of the incident are contained in the earlier judgment.

 

30 Essentially, Mr Savage shone a laser pointer into the lounge area of Mr and Mrs Clavel. It displayed a red light on the ceiling and occasionally on the wall and also, at one point, onto Ms Poulton's face. Ms Poulton, as is recited in the earlier judgment, was a visitor in the home of Mr and Mrs Clavel. As a consequence of the red beam, each of the persons present in the home crouched low. At one point there was a suggestion by Benjamin Clavel that it was possible the laser beam might be attached to the end of a gun.

 

31 At the time that statement was made, namely 25 January 2000, Benjamin Clavel was unaware that Mr Savage owned a gun. Nevertheless, Mr Clavel was aware of it. Mr Savage had told him some years before. In fact, Mr Savage did not have a gun. The person who owned a gun to which Mr Savage may have had access had left Mackerel Beach some years before the incident in question. It is not clear whether Mr Clavel was aware of those latter circumstances.

 

32 As already found in the earlier judgment, I accept that Mr and Mrs Clavel were distressed by the shining of the laser beam. That finding is made on the balance of probabilities. The conduct was deliberate, it had no justification or lawful excuse, but the other elements are more difficult to identify and satisfy. If harm were caused, I accept that it was caused to Mr and/or Mrs Clavel in circumstances where, if it were intended, it was intended against each of them.

 

33 I am, on the balance of probabilities, prepared to draw the inference that the act of shining the laser beam was intended to cause distress and was likely to cause distress in a normal person. Leaving aside for present purposes, the absence of proof that satisfies the Court of psychiatric injury of the kind required in order to successfully obtain damages under the Wilkinson v Downton tort, I do not consider that the shining of the laser beam was reasonably likely to cause psychiatric harm of the kind necessary in a normal person, nor occasioned the psychiatric harm in Mr or Mrs Clavel. Further, I do not consider that Mr or Mrs Clavel have proved, even on the balance of probabilities, that the intention (or reckless indifference) of Mr Savage was to cause psychiatric harm of that kind.

 

34 As I concluded in the earlier judgment, I do not consider that the evidence of the experts establishes psychiatric harm caused by these incidents at Mackerel Beach, because, at least in relation to Mr Clavel, the opinion that Mr Clavel suffers a form of post-traumatic stress disorder caused by the events at Mackerel Beach is predicated on the absence of childhood trauma that may have caused such an affect.

 

35 Nevertheless, leaving aside the childhood trauma, there are so many incidents of which Mr and Mrs Clavel complain, none of which are actionable or relied upon for the purpose of causing damage, yet would have cumulatively been far more likely to cause any psychiatric damage that has been occasioned. Moreover, the number and quality of the incidents, and the matters in complaint, particularly those against the police, relating to the note about the Corsican Liberation Army, the reaction to the explosion and the incident at the Pollack residence are such that the laser beam incident cannot be seen as a substantial cause or aggravating feature of any psychiatric damage that may have been inflicted.

 

36 In relation to Mrs Clavel, the "events" at Mackerel Beach were a contributing factor to her depression, or the redevelopment of some. As described in the report of Dr Westmore of 25 November 2008, it is the aggregation of all of the events that has been the factor. Moreover, the evidence (and the report) discloses that her predominant fear and anxiety arose from her and her husband's treatment at Mackerel and by the police.

 

37 I am not satisfied that the laser beam incident on 25 January 2000 was a substantial cause of, or contributing factor to, the depression.

 

38 I have taken into account in examining these "wrongful" events, the other activities at Mackerel and the context in which they have occurred. On the one hand, that context is available in order to draw an inference as to the purpose of the conduct of Mr and Mrs Savage. It also makes Mr and Mrs Clavel more vulnerable to damage.

 

39 On the other hand, the events at Mackerel for which neither Mr nor Mrs Savage are responsible are, on the evidence, the overwhelming cause of any damage that may have ensued. If there were damage, it has occurred as a result of the other conduct and not any of these events.

 

40 I make it clear that if I could draw the inference that it was more probable that any conduct of Mr or Mrs Savage caused the injuries suffered, I would have so held. Intention, as I've tried to explain, merely involves deliberate conduct for which psychiatric injury was a natural or probable consequence (Nationwide News Pty Ltd v Naidu [2007] NSWCA 377; (2007) 71 NSWLR 471 at [82] per Spigelman CJ).

 

41 As earlier explained, if psychiatric damage were suffered by Mr or Mrs Clavel, it was occasioned by events at Mackerel for which neither Mr or Mrs Savage can be held responsible.

 

42 In those circumstances, the claim against the first and second defendants must fail.

 

 

Costs

 

43 The first and second defendants make no application for any special order for costs. An ordinary costs order will be made. The third defendant refers to two "offers of compromise" on which it bases an application for a special costs order.

 

44 On 18 October 2010, the Crown solicitor by letter offered a compromise on the following terms:

 

(1) "Verdict and judgment for the third defendant;

 

(2) Each party bear its own cost in the proceeding;

 

(3) This offer shall be open until 25 October 2010 at 9am;

 

(4) This offer is made in accordance with r 20.26 of the Uniform Civil Procedure Rules 2005 (NSW)."

 

45 As it is clear, from the foregoing the offer remained open for one week only and essentially required the plaintiff to discontinue or accept judgment against themselves in relation to the third defendant and otherwise bear their own costs.

 

46 At the time that the offer of compromise, referred to above, was made the costs and disbursements of the third defendant on a party/party basis were approximately $350,000.00 to $400,000.00.

 

47 The third defendant submits that, as a consequence, the offer of compromise of 18 October 2010 was properly characterised as an offer of compromise with a real element of compromise contained in it. Plainly, the plaintiffs have achieved less than that which the third defendant offered.

 

48 The alternative submission made by the third defendant relates to two letters sent or dated 22 December 2010, sent to the solicitors acting for Mr and Mrs Clavel and offering, in relation to the first such letter, a verdict for Mr Clavel for $175,000.00 plus costs of $300,000.00 including GST, and, in relation to the second letter, a verdict for the second plaintiff of $25,000.00 and costs of $100,000.00. In aggregate, the third defendant was offering $200,000.00 plus $4000,00.00 in costs (inclusive of GST).

 

49 The letters of 22 December 2010 were not offers of compromise under the rules, but specifically referred to the principles enunciated in Calderbank v Calderbank [1975] 3 All ER 333 and other cases adopting those principles.

 

50 Given the nature of the proceedings and the allegations that were made, and the level of preparation that had occurred, notwithstanding that the formal Offer of Compromise of 18 October 2010 complied with the UCPR provisions, I do not consider that it had a sufficient level of compromise to render its non-acceptance unreasonable.

 

51 In some senses, the later Calderbank letter of 22 December 2010 discloses that the conduct of the plaintiffs in refusing the offer made on 18 October 2010 was most reasonable. I do not consider that a different costs order based upon the offer of compromise of 18 October 2010 should be made.

 

52 The Calderbank offer of 22 December 2010 is in a different category. Of course, it is not a formal Offer of Compromise. Nevertheless, it is an offer made without prejudice except as to costs. It was more than reasonable in the circumstances. It was expressly open for 28 days, being a reasonable period, and would have achieved for the plaintiffs a result that was more favourable than that achieved in the litigation.

 

53 As a consequence, I will order indemnity costs on and from 22 December 2010. There is one qualification that is required.

 

54 While no reference has been made to it, the third defendant applied by motion for the admission of certain evidence under s 67 of the Evidence Act 1995. Notice under s 67 was given.

 

55 The Court appointed an independent expert to report and some significant costs were expended on dealing with the notice. The notice was withdrawn. The evidence was not adduced. The plaintiffs' costs of that exercise ought to be paid by the third defendant. I allow approximately 5 days' costs for that exercise (out of approximately 52 hearing days) and reduce the costs payable by 20% (i.e. 10% less days plus 10% to be paid to the plaintiffs).

 

56 The Court makes the following orders:

 

(1) Judgment for the first and second defendants.

 

(2) The plaintiff shall pay the first and second defendants' costs of and incidental to the proceedings.

 

(3) The plaintiff shall pay 80% of the third defendant's costs of and incidental to the proceedings on a party/party basis up to and including 22 December 2010 and thereafter on an indemnity basis.

 

(4) Proceedings otherwise dismissed.

 

 

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Decision last updated: 01 September 2015