![Carter v Walker [2010]: A Legal Case Summary](https://casejudgments.com/wp-content/uploads/2025/03/Carter-v-Walker-863x863.png)
Carter & Anor v Walker & Anor [2010] VSCA 340; 32 VR 1
- Supreme Court of Victoria, Court of Appeal
- Judgment date: 14 December 2010
- Judges: BUCHANAN, ASHLEY and WEINBERG JJA
- Area of law: Assault and battery, nervous shock, damages
Background of the Case (Carter v Walker)
The case involves a legal dispute between Donald Walker and Marcus Walker (as Executors of Marcia Walker’s Will) against Graeme Carter (a police officer) and the State of Victoria. The incident occurred on August 14, 1993, when police officers Graeme Carter and Mark Sesin responded to a domestic dispute at Donald Walker’s home. A physical altercation happened between the police, Donald Walker, and his mother, Marcia Walker (who lived next door). Donald and Marcia Walker were injured, and Marcus Walker suffered shock after seeing his mother and learning about his brother’s injuries.
Legal Issues in the Case
The case revolves around several legal concepts, including:
Assault and Battery – Whether the police officers used excessive force and if they acted together (in concert).
Nervous Shock – Whether Marcus Walker had a valid claim for suffering psychological harm due to witnessing the injuries of his family members.
Damages – Whether the compensation awarded to the Walkers was appropriate or excessive.
What Happened on the Night of the Incident?
Police officers Carter and Sesin arrived at Donald Walker’s residence in response to a call about a domestic dispute between him and his girlfriend Ruth Hamm. The police kicked down the door and entered the house. Donald Walker did not physically resist, but the police used force against him. His mother, Marcia Walker, tried to intervene but was pushed to the ground, causing a dislocated shoulder. Donald Walker was beaten with police batons, suffering bruises and fractured ribs. Marcus Walker arrived later, saw his injured mother being taken in an ambulance, and suffered emotional distress.
The Court’s Findings in Carter v Walker
Police Used Excessive Force – The trial judge found that Carter and Sesin assaulted Donald Walker and his mother without justification.
Donald Walker Was Not a Threat – The court rejected the police claim that they were acting in self-defense.
Unlawful Actions Against Marcia Walker – The police had no right to push or injure Marcia Walker.
Marcus Walker Was Entitled to Damages for Nervous Shock – The court recognized that he suffered mental distress due to what he witnessed.
Quote from the case
“……. the question to be determined was whether Carter and Sesin were lawfully justified in acting as they did. Of course, the appellants bore the onus of proof in that regard. The trial judge was not persuaded that they had discharged that onus. His Honour concluded that the police had not responded to an actual or apprehended breach of the peace. They had not acted in defence of Sesin. In any event, they had used excessive force against Donald Walker. No right to self-defence had justified Carter’s actions against Marcia Walker.” (at p. 150)
Damages (Compensation) Awarded
Donald Walker: $1,783,413 for injuries and lost earnings.
Marcus Walker: $918,610 for psychological distress and lost earnings.
Estate of Marcia Walker: $200,000 for injuries suffered before her death.
Appeal by the Police and the State
The police and the State of Victoria appealed the decision, arguing:
- The police had the right to enter and restrain Donald Walker.
- The force used was not excessive.
- The compensation awarded was too high.
Court of Appeal Decision
The court partially reduced the damages but upheld the main ruling that the police acted unlawfully and used excessive force.
Further, the court recognized nervous shock claims can be valid even if the claimant was not physically attacked or did not witness the assault directly. The key factor is whether the injury was foreseeable given the relationship between the victim and the claimant.
In this regard, the case Battista v Cooper (1976) 14 SASR 225 was discussed but ultimately rejected. Battista held that a plaintiff could not recover for nervous shock unless they were physically present and directly witnessed the injury-causing event. However, in the instant case, the Court of Appeal upheld the trial judge’s rejection of Battista. It reinforced the idea that foreseeability is the key standard in nervous shock cases. The judges favoured a foreseeability-based approach, rather than requiring direct physical presence at the moment of injury. Family members who witness the aftermath of a violent event may be able to claim nervous shock damages, even if they did not witness the injury directly. Thus, the nervous shock claim for Marcus Walker was upheld. He could foreseeably suffer nervous shock.
Full case reference:
https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSCA/2010/340.html
Summing up (Carter v Walker)
The case highlights police accountability, the limits of lawful force, and the rights of individuals to claim damages for physical and psychological injuries caused by unlawful police actions.
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