Rees, Neil --- "Gordon and McDonald v Francesco Camer-Pesci and Guiseppi Camer-Pesci (Civil action - assault - false imprisonment - aggravated damages)" [1981] AboriginalLawB 25; (1981) 1(2) Aboriginal Law Bulletin 7

• Gordon And Mcdonald V Francesco Camer-Pesci And Guiseppi Camer-Pesci
• Civil Action-Assault-False Imprisonment-Aggravated Damages.

---

Gordon and McDonald v Francesco Camer-Pesci and Guiseppi Camer-Pesci

Civil action - assault - false imprisonment - aggravated damages.

Gordon and McDonald v Francesco Camer-Pesci and Guiseppi Camer-Pesci

Supreme Court of Western Australia at Kununurra (Burt CJ)

25 and 26 June 1981, 22 July 1981

Casenote by Neil Rees

The plaintiffs brought proceedings against the defendants for assault and false imprisonment. The first defendant was the licensee of the Kununurra Hotel; the second defendant was a relative.

In the early hours of 11 September 1979 the plaintiffs, Aboriginal men aged 18 and 19, were observed by the defendants trying to break into the Kununurra Hotel. The trial judge found that both plaintiffs had been drinking heavily.

The plaintiff Gordon was challenged by the defendants and when he tried to escape, was hit over the head with a broomstick wielded by the first defendant. The blow caused him to fall to the ground. The first defendant then proceeded to tie Gordon up with a rope. Shortly afterwards the plaintiff McDonald was located in the hotel cool-room. After he refused to lie down, he was hit on the legs and hands with the broomstick. McDonald then did as he was told and was also tied up with rope. The first defendant proceeded to give the plaintiffs a haircut. He used clippers to give each plaintiff a 'mohawk' style haircut. The plaintiffs were then dragged to a Toyota truck and chained together with a chain which was also secured to the towbar of the truck. More than three hours later the plaintiffs were released from the truck and were instructed by the first defendant to walk in their chains to the police station. The plaintiffs followed this instruction and shortly after their arrival at the police station they were released from the chains. Burt CJ made the following findings of fact –

1. That the second defendant did not assault the plaintiff Gordon as alleged in para. 1 of his statement of claim. The first defendant struck Gordon once over the head with a broomstick but did not there by render him unconscious. It was the first defendant who struck the plaintiff McDonald on the legs andd hands with what remained of the broomstick. In the circumstances then pertaining I think the blows to each plaintiff to have been justified and not to be actionable.

2. It was the first defendant who tied up each plaintiff with rope. This, too, I think to have been justified. In the circumstances it was lawful for the defendants to arrest each of the plaintiffs without a warrant but having done so it was their duty 'to take him forthwith before a Justice to be dealt with according to law' (s. 570 of the Criminal Code). Generally I think that if at that stage of the proceedings the defendants had immediately contacted the sergeant of police and told him what had happened and invited him to come and pick up the two plaintiffs so that they could be brought to justice in a proper way then that would have been the end of the matter. Unfortunately, however, that is not what happened.

3. It was the fast defendant who cut the hair of each plaintiff. This was certainly not justified and in my view was in every sense an aggravated and high-handed and malicious assault on each plaintiff.

4. Each defendant dragged the plaintiffs or one or other of them to the truck and the first defendant, assisted by the second defendant, who played a very minor role, then chained them together and to the truck and left them there from about 4 o'clock until 8 o'clock in the morning. There was no possible justification for doing this. It was a wilful delay within the meaning of s.140 of the Criminal Code. It was an outrageous thing to do.

5. It was the first defendant who sent the plaintiffs off to the police station chained together. This should, I think, be regarded as part and parcel of the false imprisonment. This too, was an outrageous thing to do and it was done to humiliate and to teach the plaintiffs a lesson.

Burt CJ found that each plaintiff had been unlawfully assaulted by the first defendant by having his hair cut. He also found that both defendants had falsely imprisoned the plaintiffs from the time of the hair-cutting episode until their release from the chains at the police station. The plaintiffs sought aggravated damages. Burt CJ made the following observations when considering the auestion of damages –

It is true that claims for such (aggravated) damages are not specifically pleaded as required by 0.20 R.9(3), but the facts sufficient for the purpose are pleaded and I would give leave to amend the pleading if that were thought to be necessary. I am in this using the expression 'aggravated damages' as damages given by way of compensation for injury to the plaintiffs resulting from the circumstances and manner of the defendants' wrong doing. In this case I intend to take into consideration the very many aggravating circumstances attendant upon each tort committed in weighing the compensation which the plaintiffs should have. I add nothing simply to punish the defendants or by way of example to others.

In that way I approach the tort of false imprisonment which has been established and for which I have found the defendants to be jointly responsible as joint tortfeasors. With respect to this each plaintiff is entitled to compensation for having been chained to the, Toyota and obliged to lie, if they could, for some hours on concrete and for the public spectacle made of them in the morning: How one measures that in money terms I do not know. Perhaps it is as well to concede that one can't and it is for that reason that damages in such cases are said to be at large. Doing the best I can, I think that upon this head of claim each plaintiff should recover against the defendants jointly $2000.

This leaves remaining the assault which was the cutting of the hair. This, as I have found, was done to humiliate and 'to shame them from their own people' and I have no reason to doubt but that over a period of time and notwithstanding the efforts of each plaintiff to make the cosmetic damage good, it achieved that purpose. Again damages are very much at large and again doing the best I can I assess the damages recoverable by each plaintiff against the first defendant in the sum of $1000.

Hence, in the result each plaintiff will recover $2000 against the defendants jointly and each will recover $1000 against the fast defendant.

The defendants were also convicted in the Court of Petty Sessions of assaulting the plaintiffs. No penalty was imposed.

P. J. Vincent and S. A. Walker, instructed by the Aboriginal Legal Service Ltd. (Derby), appeared for the plaintiffs.

R. W. Cannon, instructed by Cannon & Co., appeared for the defendants.