DISTRICT COURT OF QUEENSLAND
CITATION:
Hunold v Twinn & Anor [2018] QDC 43
PARTIES:
KRIS DONALD HUNOLD
(Plaintiff)
v
PAUL TWINN
(First Defendant)
and
THE STATE OF QUEENSLAND
(Second Defendant)
FILE NO/S:
BD4952 of 2014
DIVISION:
Civil
PROCEEDING:
Trial
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
23 March 2018
DELIVERED AT:
Brisbane
HEARING DATES:
17, 18, 19 July and 1 September 2017
Final submissions received 3 October 2017
JUDGE:
Muir DCJ
ORDER:
1. Judgment for the plaintiff in the sum of $27,500.
CATCHWORDS:
TORTS – ASSAULT AND BATTERY – PERSONAL INJURIES – where plaintiff was injured during course of arrest – where liability and quantum are in dispute – whether force used was ‘reasonably necessary’ to affect arrest – whether force was lawful per s 615 Police Powers and Responsibilities Act 2000 (Qld) – nature of injuries – whether injury is ongoing – whether psychiatric injury suffered and related
DAMAGES – PERSONAL INJURIES – QUANTUM – where symptoms are not corroborated by medical evidence – consideration of the possibility of diminished earning capacity – assessment of general and future damages
LEGISLATION:
Police Powers and Responsibilities Act2000 (Qld), ss 365, 615
Summary Offences Act 2005 (Qld), s 6
Uniform Civil Procedure Rules 1999 (Qld)
Criminal Code 1899 (Qld), s 1
Police Service Administration Act 1990 (Qld), s 10.5
Civil Liability Act2003 (Qld) (Reprint 2B), s 61
Civil Liability Regulation 2003 (Qld) (Reprint 1B), sch 4
Civil Liability Act 2002 (Qld) (Reprint 2A), s 55CASES:
AAI Limited v Marinkovic [2017] QCA 54, applied
Beaven v Wagner Industrial Services Pty Ltd [2017] QCA 246, cited
Bell v Mastermyne Pty Ltd [2008] QSC 331, considered
Briginshaw v Briginshaw (1938) 60 CLR 336, applied
Browne v Dunn (1893) 6 R 67, applied
Bulsey & Anor v State of Queensland [2015] QCA 187, followed
Camden v MacKenzie [2008] 1 Qd R 39, appliedCoffey v State of Queensland & Ors [2012] QSC 186, applied
Collings & Anor v Amaroo (Qld) Pty Ltd & Anor [1997] QCA 224, considered
Cowell v Corrective Services Commission of NSW (1988) 13 NSWLR 714, cited
Fox v Percy (2003) 214 CLR 118, applied
Grosse v Purvis [2003] QDC 151, applied
Hamlyn v Hann and Heagney [1967] SASR 387, applied
Jones v Dunkel (1959) 101 CLR 298, applied
Lusk & Anor v Sapwell [2011] QCA 59, cited
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, applied
Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117, applied
Malec v JC Hutton Pty Ltd [1990] 169 CLR 638, followedMarion’s Case (1992) 175 CLR 218, cited
O’Connell v 1st Class Security P/L [2012] QDC 100, considered
Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyds Rep 403, applied
Paskins v Hail Creek Coal Pty Ltd [2017] QSC 190, cited
R v DBG [2013] QCA 370, followed
Rudd v Starbucks Coffee Company (Australia) Pty Ltd [2015] QDC 232, considered
Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219, applied
Stern v National Australia Bank Ltd (2000) 171 ALR 191, applied
Test v Forgacs Engineering Pty Ltd [2012] QDC 318, considered
Trobridge v Hardy (1955) 94 CLR 147, cited
Whitelaw v O’Sullivan [2010] QCA 366, followed
Wilson v Pringle [1987] QB 237, cited
Withyman v New South Wales & Anor [2013] NSWCA 10, considered
Yorkshire Electricity Board v Naylor [1968] AC 529, appliedCOUNSEL:
A Stobie for the plaintiff
J M Sorbello for the first and second defendants
SOLICITORS:
McNamara & Associates for the plaintiff
The State of Queensland for the first and second defendants
Introduction
The plaintiff was partying into the early hours of the morning at various night clubs along the popular Orchid Avenue strip in Surfers Paradise on 22 August 2009. Around 4.00am, the plaintiff’s sister and his cousin became embroiled in an argument with two other females on the footpath. The plaintiff stepped in to assist. The police arrived and the plaintiff was arrested for public nuisance. The plaintiff alleges he was injured due to the manner in which he was arrested. He claims that the actions of the first defendant, who was the arresting officer, were an assault and battery and he seeks damages for a range of consequential injuries. Both liability and quantum are in dispute.
The pleadings
The plaintiff’s pleaded case
The circumstances in which the injury is alleged to have occurred are pleaded in [3] of the plaintiff’s statement of claim filed 16 December 2014 (“statement of claim”) as follows:
[3]On or about 22nd August 2009 at approximately 4:00 a.m. on Orchid Avenue at Surfers Paradise in the State of Queensland, whilst engaged in his duties as a police officer, the First Defendant:-
(a)Failed to identify himself to the Plaintiff as a police officer;
(b)Approached the Plaintiff from behind without warning;
(c)Grabbed the Plaintiff’s shoulders;
(d)Kneed or kicked the Plaintiff to the back of the Plaintiff’s knee/or hamstring;
(e)Dropped the Plaintiff to the ground;
(f)As the Plaintiff lay curled on the ground, kneed him heavily on his right hand flank;
(g)Forced the Plaintiff’s head into the ground.
It is pleaded in [5] and [6] of the statement of claim that the acts referred to in [3] constituted a wrongful assault and battery of the plaintiff by the first defendant for which the second defendant is vicariously liable.
By his amended reply filed 1 September 2015, the plaintiff pleads that:
(a) the first defendant gave a direction to the plaintiff to place his hands behind his back, but only after the first defendant had violently kneed the plaintiff in the back;
(b) the plaintiff was not aware of the presence (specifically) of a police officer before that direction was given;
(c) if the plaintiff held his arms above his head to any extent (considering he was lying quite flat on the ground), that was a result of the way he fell, or an instinctive attempt to protect his head from an unknown source of attack;
(d) once the direction to put his hands behind his back was given, the plaintiff realised a police officer was present, and complied immediately with the direction; and
(e) the plaintiff does not know whether, and if so at what point, the first defendant struck him with his right knee for a second time.[1]
[1]Reply [2].
In [4] of the statement of claim, the plaintiff alleges that as a result of the actions in [3], he sustained injuries particularised as follows:
(a) fracture of the right transverse process of L3 lumbar spine;
(b) bruising to the right forehead; and
(c) Adjustment Disorder with Mixed Anxiety and Depressed Mood.
The plaintiff claims amounts for general damages, past economic loss with interest, future economic loss (and future superannuation), special damages and future medical, pharmaceutical and other expenses.[2]
[2]Statement of claim [7] and [8].
The defendants’ pleaded case
By their defence filed 9 January 2015 (“defence”) the defendants admit [3](a), (b), (c), and (e), of the statement of claim but deny [3](d) and (g) as being contrary to fact and [3](f) on the grounds that the:
(a) plaintiff was not curled on the ground but was instead raising his arms above his head failing to comply with the direction to place his hands behind his back;
(b) first defendant was kneeling to the right of the plaintiff;
(c) first defendant struck out with his right knee towards the thigh area of the plaintiff to attempt to have him comply with the first defendant’s direction;
(d) plaintiff did not comply with the direction to place his hands behind his back;
(e) first defendant again struck the plaintiff with his right knee;
(f) plaintiff then complied with the direction to place his hands behind his back and was handcuffed.[3]
[3]Defence [2](b) and (c).
In relation to liability, the defendants deny [5] of the statement of claim on the grounds that:
(a) the first defendant reasonably suspected the plaintiff had committed and was committing an offence;
(b) pursuant to s 365, Police Powers and Responsibilities Act (2000) (“PPRA”), the first defendant was authorised to arrest the plaintiff;
(c) in effecting the arrest of the plaintiff, pursuant to s 615 of the PPRA, the first defendant was authorised to use the force reasonably necessary to effect the arrest; and
(d) the force used by the first defendant against the plaintiff was reasonably necessary.[4]
[4]Defence [4].
By their further and better particulars of the defence filed 11 May 2015, the defendants allege:
(a) the first defendant suspected that the plaintiff committed an offence in the following circumstances:
(i) he observed a group of persons fighting on Orchid Avenue;
(ii) the plaintiff was standing in the group with his back to the first defendant and was striking out with both arms into the crowd of people in a violent manner; and
(iii) the plaintiff’s conduct by behaving in a violent way caused the first defendant to suspect that the plaintiff was committing a public nuisance offence pursuant to s 6 of the Summary Offences Act 2005 (Qld).[5]
[5]Further and better particulars [1].
(b) the suspicion was reasonable as the first defendant had personally observed the conduct which he considered constituted a public nuisance offence.[6]
[6]Further and better particulars [1](b).
(c) the force used by the defendant as pleaded in [4](d) of the defence was reasonably necessary in the following circumstances:
(i) the first defendant observed the plaintiff had already displayed aggression by physical assault of persons in the crowd of people;
(ii) there were a number of potentially volatile persons involved in the fracas and the first defendant considered that the situation needed to be dealt with quickly;
(iii) the first defendant considered it reasonably necessary to act swiftly to prevent the plaintiff from engaging in further violent acts by placing the plaintiff on the ground;
(iv) as the first defendant took hold of the plaintiff, the plaintiff pulled away so that the first defendant considered it necessary to apply further force to the plaintiff to take him to the ground and shouted at the plaintiff to put his hands behind his back;
(v) as the plaintiff did not comply with the first defendant’s instruction and instead it appeared to the first defendant the plaintiff was attempting to stand, the first defendant considered it reasonably necessary to apply pressure to the plaintiff’s shoulder to prevent the plaintiff from standing and potentially continuing to act in a violent manner;
(vi) after the plaintiff again failed to comply with the request to place his hands behind his back and instead raised his arms above his head, the first defendant considered it reasonably necessary to strike the plaintiff with his right knee toward the thigh area of the plaintiff to attempt to have him comply with the first defendant’s direction; and
(vii) when the plaintiff still did not comply with the direction to place his hands behind his back, the first defendant considered it reasonably necessary to again strike the plaintiff with his right knee in a further attempt to have him comply with the first defendant’s direction.[7]
[7]Further and better particulars [2](2).
The defendants admit the plaintiff sustained personal injury as a result of the actions of the first defendant as pleaded in [2](c) of the defence but they do not plead [as they are not required to under the Uniform Civil Procedure Rules 1999 (Qld)] to the specific injuries particularised by the plaintiff in [4] of the statement of claim.[8] It is therefore not apparent on the pleadings what personal injury the defendants admit. I raised this issue with counsel for the defendants during the course of the trial. Counsel stated that the defendants admitted on the face of the medical evidence, the fracture of the right transverse process of L3 lumbar spine was sustained.[9]
[8]Defence [3].
[9]T3-38.
In short, the defendants admit the plaintiff sustained a fracture of the right transverse process of L3 lumbar spine as a result of the actions of the first defendant on 22 August 2009 [but say the injury occurred in the manner pleaded by them in [2](c) of the defence]. As discussed below in these Reasons, there is a tension between this admission and the defendants’ pleadings and particulars of the first defendant’s actions.
As far as quantum is concerned, the defendants admit (subject to it being on the basis of their pleaded case as to the manner of the arrest) that the plaintiff has:
(a) lost some amenities of life;[10] and
[10]Defence [6](b)(vii).
(b) suffered and will continue to suffer pain, suffering, inconvenience and disability;[11] and
[11]Defence [6](b)(i).
(c) required medical and other similar treatment;[12] and
(d) incurred special damages and other out-of-pocket expenses;[13] and
(e) suffered in the past an impairment of his earning capacity.[14]
[12]Defence [6](b)(ii).
[13]Defence [6](b)(vi).
[14]Defence [6](b)(iii).
However, the defendants deny the plaintiff:
(a) will require further medical and such treatment as it is contrary to the medical evidence relied upon by the defendants;[15] and
[15]Defence [6](b)(ii).
(b) will incur special damages and other out-of-pocket expenses in the future as it is contrary to the medical evidence;[16] and
[16]Defence [6](b)(vi).
(c) has suffered any impairment of earning capacity that will cause in the future, economic loss, on the grounds that:
(i) the plaintiff suffered from back pain from 13 years of age;
(ii) on 25 May 2009, the plaintiff attended Dr Januwala, complaining of back pain when sitting or standing still for longer than 10 minutes;
(iii) the plaintiff suffered lower leg compartment syndrome precluding him from performing his duties as a storeman in the army.[17]
[17]Defence [6](b)(v).
Overall, the defendants deny the plaintiff is entitled to an assessment in the amount claimed on the basis that it is excessive and contrary to the evidence.
Credibility
The defendants submit that the plaintiff is not a witness of credit to such an extent that it is impossible to know what part, if any, of his allegations are true and upon which the Court may safely act in imposing liability or damages on the defendants.[18]
[18]Submission for first and second defendants dated 18 July 2017 at [1] and [5].
The defendants point to a number of authorities to support this submission.[19]
[19]Including the observations of McMeekin J in Bell v Mastermyne Pty Ltd [2008] QSC 331 at [19]; McPherson JA in Collings & Anor v Amaroo (Qld) Pty Ltd & Anor [1997] QCA 224 at 7; Lusk & Anor v Sapwell [2011] QCA 59; Robin QC DCJ in Test v Forgacs Engineering Pty Ltd [2012] QDC 318 at [23].
In my view, the following well-known passage about credibility by Lord Pearce in Onassis and Calogeropoulos v Vergottis is the most apposite to the present case:
‘Credibility’ involves wider problems than mere ‘demeanour’ which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.[20] [emphasis added]
[20][1968] 2 Lloyds Rep 403 at 431; cited with approval in Withyman v New South Wales & Anor [2013] NSWCA 10 at [65].
There are many aspects of the plaintiff’s evidence which are troubling. These are discussed in more detail where relevant later in these Reasons. Some of the matters I find reflect poorly on his credibility include:
(a) The evidence that the plaintiff requested Dr d’Arville, the medical examiner performing the plaintiff’s assessment for his discharge from the army on 30 September 2011, not to include other injuries that were not the subject of this claim in the examiner’s assessment “as they would potentially bias the outcome of civil proceedings”.
(b) The tendency of the plaintiff to downplay or ignore his pre-existing back pain and compartment syndrome.
(c) The extent of the plaintiff’s ongoing back pain is not consistent with many of the activities he undertook as evidenced from the extracts from his Facebook posts.
(d) The inconsistencies between the plaintiff’s evidence in chief and his evidence under cross-examination about the level of his incapacity immediately following the incident. For example:
(i) in respect of the initial four hours following the arrest, the plaintiff’s evidence in chief was:
As I started to calm down I started to get a lot of lower back pain and … my face was sore as well…. after a couple of hours in the cells … I was laying on the bench on my back because it started aching a fair bit…. I tried to get up. I couldn’t get up. They asked me what was wrong and I told them that I can’t move properly or I can’t move … so two officers came in and picked me up to carry me out to where my stuff was.[21]
[21]T1-32.
(ii) on the Monday morning following the injury:
I couldn’t do anything. I felt near paralysed. I couldn’t do my shoes. I couldn’t dress myself. My mate had to help me in out of the car, had to help me into the hospital. Yeah, just severe pain. I couldn’t move.[22]
[22]T1-34.
(iii) for the two weeks sick leave immediately following the incident:
It was hell. Couldn’t move. Couldn’t go to the toilet. Couldn’t dress myself. Just – yeah, needed help for everything.[23]
[23]T1-35.
(iv) initially in cross-examination, the plaintiff stated that on the day he was released from the watch house (being the early hours of Saturday morning) his activities were as follows:
Well, after I got back to the room, I had a hot bath, just thinking I’ve got muscle pain and I’ll try and relieve that. After I did that for a while, the pain dulled a little bit. I still had severe sharp pain and stuff in my back, but I couldn’t walk. So I continued to socialise and put up with the pain while I was down there because I couldn’t drive home … I ducked out for a little bit [to the Casino] to go see my sister before she left and then we headed back to the hotel room … We weren’t there for very long… I didn’t have any drinks there.
(v) later under cross-examination, the plaintiff admitted that his evidence that he stayed at home for the following two weeks after the incident, other than the 20 minutes that he went to the Casino on the Saturday evening, was false.[24]
(vi) the plaintiff was clearly out drinking at a licensed establishment within three days of the incident. Whilst out drinking he was able to perform various dance manoeuvres and strike poses[25] inconsistent with a person who was “near paralysed”.
[24]T3-65.
[25]Exhibit 42.
The plaintiff’s evidence at times was less than forthright and conveniently selective. However, it is too simple an approach to make a general conclusion that it is unsafe to accept any of his uncorroborated evidence. As Judge Bowskill QC (as she then was) observed in Rudd v Starbucks Coffee Company (Australia) Pty Ltd:[26]
It may readily be observed that human beings, perhaps especially young ones, are fallible and can at times make poor choices, including in terms of truthfulness. That does not mean they are generally dishonest….
[26][2015] QDC 232 at [19].
Overall, I did not form the opinion that the plaintiff was a generally dishonest person such that his uncorroborated evidence should not be accepted at all. In my view, he was telling the truth as he saw it. His recollection was often distorted, having been altered by “unconscious bias or wishful thinking or by overmuch discussion of it with others”.[27]
[27]Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyds Rep 403 at 431.
It follows that a careful assessment of the plaintiff’s evidence is required.[28] In carrying out such a task, his evidence has been objectively assessed having regard to the whole of the evidence before the Court, and a consideration of where the balance of probability lies on the basis of that analysis.[29] Upon this assessment, as these Reasons reveal, I have rejected some, but not all, of the plaintiff’s evidence.
[28]See Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117 at 118, see also Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 720.
[29]Fox v Percy (2003) 214 CLR 118 at [31] and Camden v MacKenzie [2008] 1 Qd R 39 at 34; see also discussion by Bowskill QC DCJ (as she then was) in Rudd v Starbucks Coffee Company (Australia) Pty Ltd [2015] QDC 232.
Liability
The determination of the issue of liability involves a resolution of the following questions:
(a) What were the circumstances leading up to the plaintiff’s arrest on 22 August 2009?
(b) Was the force used to effect the arrest reasonably necessary?
(d) If the force used was not reasonably necessary what injury did the plaintiff suffer as a result of the arrest?
(e) What impact did the injury suffered have on the plaintiff’s life?
(f) Has the plaintiff suffered a psychiatric injury?
(g) Are the defendants liable for any psychiatric injury suffered by the plaintiff?
Before addressing these questions it is necessary to pause and consider briefly the [relatively uncontroversial] circumstances leading up to the plaintiff’s night out on the Gold Coast.
Plaintiff’s night out on the Gold Coast on 22 August 2009
The plaintiff was a 22 year old private in the Australian Army based at Amberley at the time he was arrested on 22 August 2009.
On Friday 21 August 2009, the plaintiff travelled to the Gold Coast with a few of his army mates, Michael Winter, Jeremy Crisp and Jordan Proud, to meet his sister, Amanda Hunold, for her 18th birthday. Ms Hunold travelled from Narrabri with some of her friends and a cousin, Whitney La Spina.
The plaintiff was drinking from about 3.00pm in the afternoon until 3.00am the following morning. There were a number of inconsistencies in the evidence about the plaintiff’s drinking over the course of the night. At trial the plaintiff insisted that he was drinking “goldies”. Yet he told police when he made his complaint later the afternoon of the incident, that he had mostly been drinking rum for the 12 hour period. Nine months later, on 30 April 2010, the plaintiff signed a Notice of Claim in which he stated that he had consumed eight to 10 beers between 6.00pm and 3.00am. At trial, when confronted with the proposition that he deliberately stated in the Notice of Claim that he had been drinking beer as opposed to rum, because rum would make him sound more intoxicated, he said “full strength beer and rum are the same percentage of alcohol”. Nothing particular turns on the issue of what the plaintiff was drinking on the night. However, the plaintiff’s responses are instructive, as they are an example of the plaintiff’s propensity towards belligerent defensiveness when cornered and of his tendency to down play or reconstruct events where the facts may not have suited or advanced his case.
To the extent it is necessary to resolve this issue, I prefer the plaintiff’s relatively contemporaneous version to the police on 22 August. I find the plaintiff had been drinking rum for a 12 hour period. It is not possible to make an assessment of the level of the plaintiff’s intoxication on the state of the evidence before me. The plaintiff did not deny he was affected by alcohol at 4.00am: his evidence being “I wouldn’t say I was completely intoxicated at that time”. I accept there must have been some level of intoxication given he was ultimately charged with being drunk in a public place (and fined three dollars) upon his release from the Southport Watch House on 22 August.
Around 4.00am, the plaintiff and his entourage left a night club and were outside Players Showgirls Strip Club on Orchid Avenue. The plaintiff was sitting with his friends Mr Proud and Mr Crisp when he described two “random girls” approaching Mr Proud. After some conversation which the plaintiff did not hear, one of the females hit Mr Proud. The plaintiff’s sister and Ms La Spina then became involved in an argument with the two unknown females and a scuffle ensued between the four of them. The plaintiff’s sister was hit and had her hair pulled by one of the females. The plaintiff then put himself in between his sister and this female because he wanted to protect his sister. He pushed this female away from his sister and she stumbled and fell. The plaintiff told her to leave. The plaintiff then tried to hold his sister back as she was trying to intervene in a scuffle between Ms La Spina and the other female involving hair pulling and pushing, during which both females fell to the ground. At this point it seems that the plaintiff’s actions were misconstrued by some of the bystanders who tried to keep him away. In particular, the plaintiff was held back by a big, tall male wearing a checked shirt. This male told the plaintiff to leave. In response, the plaintiff told him on a number of occasions that he was trying to break up the fight because members of his family were involved.
The plaintiff was located at the outer periphery of the disturbance. It was at this point, unbeknown to the plaintiff, the police arrived. The first defendant approached the plaintiff from behind. CCTV footage of the arrest was played and tendered into evidence at the trial.[30]
[30]Exhibit 3.
What were the circumstances leading up to the plaintiff’s arrest on 22 August 2009?
Issues of credit arise in relation to the two crucial witnesses to the arrest of the plaintiff on 22 August 2009. That is the evidence of the plaintiff and the first defendant.
Plaintiff’s version
At trial, the plaintiff’s evidence was that he was grabbed suddenly from behind. He described a knee to his right leg which caused him to drop quickly on to his right hand side. He lay on the ground and adopted a foetal-like position. The plaintiff then received a heavy knee to his back which forced him on to his stomach. He was then pushed flat like a plank and put his hands out in front of him. At this point the plaintiff was kneed again in the lower back causing his head to lift off the ground. He was then told by the first defendant to put his head on the ground. At that point the plaintiff’s head was pushed into the concrete impacting with the right side of his face up on the forehead. The first defendant then asked the plaintiff to put his hands behind his back. It was at that point the plaintiff deduced that the person assaulting him was a police officer. The plaintiff was then handcuffed and told he was under arrest for public nuisance (or something similar).
The take-down, subsequent knee to the back and forcing of the head into the ground are all pleaded as instances of assault and battery.[31] The plaintiff submits that the immediate cause of the significant injuries was the knee to the back.[32]
[31]Plaintiff’s submissions as to liability [10] (with reference to statement of claim [3] and [4]).
[32]Plaintiff’s submissions as to liability [10].
The plaintiff agreed that in the Notice of Claim he gave the version that “the police threw the claimant to the ground, smashed his head into the ground, and kneeled on his back causing severe injury”. The plaintiff accepted that the version in the Notice of Claim “pretty much sums it up”.[33]
[33]T3-13.
First defendant’s version
At trial, the first defendant’s evidence was that prior to his involvement, he was in the charging area at the Surfers Paradise Police Station which was located about 30m away from where the incident occurred. He walked outside and down the steps and with his high vantage point was able to see a large group of people with a smaller group of people to the centre. He observed that the people in the centre were very tightly packed and moving quickly. He said he would not describe it as a “wild west fight” but there was obviously a disturbance taking place.[34] He continued to walk towards the disturbance to work out exactly what was happening and his attention was drawn to the plaintiff, apparently because he was displaying the most amount of energy. He described the plaintiff’s arms to be flailing and that he was moving rapidly from side to side and his body was moving backwards and forwards. He identified the plaintiff as the person the most agitated and who needed to be removed from the situation. He formed the view that open hand tactics was the best course of action. This involved a rear take-down, namely taking hold of someone’s shoulder, removing them to the side and taking them to the ground whilst maintaining control. The first defendant’s evidence was that the plaintiff was displaying aggression and was threatening and that he had decided he was going to arrest him for public nuisance, and threatening and disorderly behaviour.
[34]T4-23.
He then walked behind the plaintiff, placed his hands on his shoulder, identifying himself as a police officer stating “Police, stop, or something similar”.[35] The first defendant described at this point the plaintiff’s body lunged away to the right and that using that momentum, he turned and spun his feet quickly causing the plaintiff to fall to the ground whilst maintaining contact with him. He described the plaintiff on the ground in a foetal position with his hands close into him. The first defendant then dropped his body level to the ground beside the plaintiff and used the force of his forearm across the plaintiff’s shoulder to cause him to lie flat on the ground whilst the plaintiff’s hands were still underneath him. He referred to his body weight being on his right knee with his left knee on the back of the plaintiff’s legs. The first defendant’s evidence was that:[36]
My body weight is on my right knee, and my left knee was – was on the back of his legs. So what – what we try to do is to maintain control of the shoulders with our forearm across the shoulders and our knee across the rear part of his leg – the – the – the rear part of his quad, upper quads. Because if you can control somebody’s legs and control somebody’s shoulders, they find it very difficult to stand up. My consideration is Surfers Paradise is quite a volatile place. I don’t know who the crowd of people are behind me. Though there’s other officers with me, I want to expedite that arrest as quickly as I can. So I want to be dynamic. When – give direction – shouted put your hands behind your back. Hands behind your back. Police. I don’t wait for a second to – for him to say yes or no, I’m going to. If there’s no instant reaction I’d have to decide on the next course of action. I believe the plaintiff put his hands above his head at that stage – or it – or not fully extended but sort of above his head, further away from me. I decided I was going to carry out a knee strike. I changed my body shape – I changed my body shape to allow me to strike to his quad. The reason I do that – I don’t want to strike to his hip. I don’t want to strike to his rib. I want to strike to his quad to cause distraction. So I distract to say hey, I’m here. Do as you’re told. I believe I – I struck twice, but it was a period of time ago, which resulted in me gaining control of the plaintiff. [Emphasis added]
[35]T4-24.
[36]T4-25.
Analysis
The defendants submit that the plaintiff’s versions at trial and in the Notice of Claim differ significantly and ultimately the Court cannot be satisfied that the first defendant kneed the plaintiff heavily in his right hand flank or his lower back.
I reject this submission for a number of reasons. First, in my view, the Notice of Claim is not a detailed statement of what occurred. It is an overview of what happened. In any event, I do not consider that there were relevant or major inconsistences. Crucially, the plaintiff has consistently maintained that the significant injury to his lower back was as a result of being kneed in the lower back. Finally, an analysis of the pleadings and particulars and the first defendant’s evidence in chief reveals a number of inconsistencies and anomalies in the first defendant’s case as to how the arrest was carried out. For the reasons outlined below, on balance, I prefer the version of events as recollected by the plaintiff.
Relevantly:
(a) The first defendant contends that “the plaintiff was standing in the group with his back to the first plaintiff and was striking out with both arms into the crowd of people in a violent manner”.[37] The CCTV footage does not support this claim. As the first defendant can be seen in the distance, it shows the plaintiff on the outskirts of the disturbance. In his evidence at trial the first defendant described the plaintiff as “displaying aggression”, and behaving in a threatening and disorderly manner.[38] This does not equate to behaving in a violent manner. The plaintiff was one of a number of members of an audience. He cannot be seen to be striking out into the crowd. At the highest his actions could be described as disorderly and disruptive but certainly not violent.
(b) The first defendant’s assertion in his evidence that he said “police, stop, or something similar”[39] is in direct conflict with the pleaded admission that the first defendant “failed to identify himself to the plaintiff as a police officer”.[40] I do not accept the submissions of the first defendant that this is not an inconsistency.[41] I consider it a significant discrepancy and of some importance in unravelling the facts and in determining the issue of the reasonableness of the first defendant’s conduct.
(c) The first defendant made a written entry in his notebook shortly after the arrest of the plaintiff. The first defendant submits these notes corroborate his version of events. I do not accept this submission. In my view, the first defendant’s notebook and the first defendant’s evidence at trial about his sequence of actions in the arrest are inconsistent on an important issue.[42] The relevant entry in the notebook provides the following sequence: taken to ground, knee strike, refused to place hands behind back, knee strike, handcuffed.[43] So, shortly after the arrest, the first defendant recalled the plaintiff refused to comply with an order that was made following a knee strike. Under cross examination at trial the first defendant said that the knee strike came first.[44] The first defendant’s attempt to explain this inconsistency under cross-examination was not satisfactory. I accept the notebook entry is a more a reliable account due to it being made in close proximity in time to the arrest.[45]
[37]Further and better particulars of the defence [1](a)(ii).
[38]T4-24.
[39]T4-24.
[40]Defence at [2](a).
[41]Defendant’s submissions on liability [28].
[42]Exhibit 84.
[43]Exhibit 84.
[44]T4-41.
[45]T4-41.
In contrast with the first defendant, I accept that the plaintiff’s version of events has been largely consistent since the commencement of proceedings. I do not accept, as asserted by the defendants, that the plaintiff’s evidence at trial differed markedly from his earlier assertions. From the outset, the plaintiff has pleaded a strike to the right hand flank[46] [the side of a person’s body between the rib and the hip] and a violent knee to the back lower back,[47] which the first defendant has denied. Although at [2](c)(v) of the defence the first defendant does not specify where on the plaintiff’s body the second knee strike made contact. Crucially, the defendants admit that the plaintiff sustained an injury to his lower back as a result of force applied by the first defendant.
[46]Statement of claim [3](f).
[47]Amended reply [2](a).
This concession gives rise, in my view, to an anomaly in the defendants’ case. The injury to the plaintiff’s lower back is admitted to have occurred as a result of the first defendant’s actions on 22 August 2009. But it could not have occurred, if I was to accept the first defendant’s evidence, that he only ever kneed the plaintiff in the upper thigh.
It was not put to the plaintiff that he was only kneed in the thigh. The defendants submit and I accept, that the rule in Browne v Dunn[48] does not apply where the witness is on notice that the witness’ version is in contest. In this case the issue is raised squarely on the pleadings.[49] The plaintiff submits that this is a non-issue, because of the state of the pleadings and evidence. There is some force to this submission. It is difficult to understand how the accepted injury could have been sustained unless I accept the plaintiff’s evidence that he was kneed in the lower back by the first defendant.
[48](1893) 6 R 67; The defendants refer to defence [2](d) as putting the plaintiff on notice that his version of events in respect of being kneed in the back is in contest.
[49]See Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 at 244-5; Stern v National Australia Bank Ltd (2000) 171 ALR 192 at 203.
In my view, the fracture to the plaintiff’s lower back is objectively established. There was no medical expert opinion that the fracture of the right transverse process of L3 lumbar spine could have occurred as a result of a knee strike to the thigh or in any other way. It follows that the first defendant’s evidence that his knee connected with the quad or thigh both times is mistaken. Objectively, the only logical conclusion to be drawn in the present case is that at least on one occasion the plaintiff was kneed in the lower back with significant force by the first defendant.
The plaintiff maintained that his head was pushed into the ground intentionally by the first defendant.[50] Consistent with the plaintiff’s case, photographs said to have been taken on 22 August showing the plaintiff with bruising and grazing to and above his right eye were tendered without objection.[51] It was not suggested to the plaintiff that the injuries shown on the photographs were not sustained on the day in question.
[50]T3-37.
[51]Exhibit 4.
It was submitted by the defence that these injuries may have occurred at another time during the disturbance or at some other unidentified time.[52] And that otherwise the facial injuries may have occurred by the plaintiff accidentally hitting his head on the ground. There was considerable cross examination of the plaintiff about other occasions he had received a black eye. I accept that this was not the first or indeed the last occasion in which he had sustained such an injury. However, there was no cogent evidence that the plaintiff had been punched in the eye earlier that night, or that he had made contact with the ground earlier during the disturbance. I accept these injuries were received during the course of his arrest.
[52]T3-39.
The plaintiff made a complaint to the Southport Police Station on the day of the incident. He admitted that part of his motivation for making the complaint was to avoid being reprimanded for being involved in a fight when he returned to the army base.[53] The contemporaneous notes of what he told police record that he did not know how he got the black eye and the bruises on his face – but he was “pretty sure” the first defendant had pushed his face onto the ground. At the time, the plaintiff was not exactly sure how the injuries to his face were sustained. His certainty that it was because his face was intentionally pushed into the ground has increased with the passage of time due in my view to distorted recollection and an attempt to reconstruct events.
[53]T3-33-34.
On balance, I find that the plaintiff hit his head upon being forcefully taken to the ground by the first defendant, thus causing the bruising and grazing around his right eye. I do not accept that the plaintiff’s head was intentionally pushed or forced to the ground by the first defendant.
Failure to call relevant witnesses
Both parties submit that in accordance with the well-known principles espoused in Jones v Dunkel,[54] I ought to draw adverse inferences in relation to the other party’s failure to call relevant witnesses.
[54](1959) 101 CLR 298.
The defendants point to the plaintiff’s failure to call Mr Crisp, Mr Winter and Mr Proud. The plaintiff points to the defendants’ failure to call the two other police officers who followed the first defendant into the disturbance, one at least of whom can be seen on the CCTV footage.
In my view, no adverse inferences ought to be drawn from either party’s perspective in this case.
It was apparent that the defendants had copies of the statement of Mr Crisp and he had been subpoenaed. The court was told without objection that both Mr Crisp and Mr Proud were serving soldiers away on exercises.[55]
[55]T1-12, T2-94.
In my view, the female police officer accompanying the first defendant at the commencement of the police intervention, as shown in the footage, may have been able to give some relevant evidence. But given the number of people at the scene, and that she was not involved in the arrest of the plaintiff, I am not willing to draw that inference.
Given the nature of the disturbance as viewed from the CCTV footage, it was unlikely that any of the witnesses both sides lament not being called, would have been paying close enough attention to the actions of the plaintiff and first defendant to assist in any material way. Ms La Spina and the plaintiff’s sister were called by the plaintiff. Both had little if any relevant recollection of the plaintiff’s arrest.
Findings as to the circumstances of the plaintiff’s arrest on 22 August 2009
On balance, upon the above analysis, I make the following relevant findings as to the circumstances of the plaintiff’s arrest on 22 August 2009:
(a) The plaintiff was not behaving in a violent manner prior to the first defendant approaching and arresting him. But I accept [and as is conceded by the plaintiff], the first defendant had grounds to form a reasonable suspicion that the plaintiff was at that point in time committing an act of public nuisance.
(b) The first defendant failed to identify himself as a police officer prior to approaching the plaintiff from behind and grabbing his shoulders.
(c) It is of little significance where the first defendant first struck the plaintiff with his knee. I accept that the plaintiff was struck and subsequently knocked to the ground.
(d) In the course of being taken to the ground, the plaintiff’s head made contact with the ground which caused bruising and minor grazing above and around his right eye.
(e) The plaintiff then lay curled on the ground, in a foetal like position. At this point, the plaintiff was struck with significant force in the lower back by the first defendant’s knee, causing the plaintiff to roll onto his stomach.
(f) The first defendant then ordered the plaintiff to place his hands behind his back.
(g) The plaintiff remained outstretched on the ground, lying on his stomach, with his hands stretched out in front of his head.
(h) While kneeling on the plaintiff, the first defendant made an order requesting the plaintiff to place his hands behind his back.
(i) Upon the plaintiff’s failure to immediately comply, the first defendant struck the plaintiff again with his knee. Given the practicalities of how the plaintiff was lying and where the first defendant was positioned over him, I accept the first defendant’s evidence at trial that this strike was to the plaintiff’s quad or thigh.
(j) The plaintiff was then handcuffed and arrested by the first defendant.
Was the force used to effect the arrest reasonably necessary?
The plaintiff pleads the take-down, knee to the back and forcing of the head into the ground are instances of assault and battery.[56] For the reasons outlined above, I have rejected the plaintiff’s contention that his head was forced to the ground.
[56]Statement of claim [3] and [4].
The immediate cause of the significant injury in this case was the significant force of the first defendant’s knee to the plaintiff’s lower back.[57]
[57]Paras [42], [43] and [54](e) of these Reasons.
The form of trespass to the person known as battery has been defined as follows:
any act of the defendant which directly and either intentionally or negligently causes some physical contact with the person of the plaintiff without the plaintiff’s consent.[58]
[58]Rosalie Balkin and Jim Davis, Law of Torts (LexisNexis Butterworths, 5th ed, 2013) 32. This definition is generally consistent with Australian decision such as Grosse v Purvis [2003] QDC 151 at 466; Marion’s Case (1992) 175 CLR 218 at 310-311.
No intention to cause injury is required. The tort is comprised merely of the intentional application of force.[59]
[59]Coffey v State of Queensland & Ors [2012] QSC 186 at [66], citing Wilson v Pringle [1987] QB 237 at 249 and Cowell v Corrective Services Commission of NSW (1988) 13 NSWLR 714 at 743.
I am satisfied that there was an intentional application of force by the first defendant on the plaintiff without the plaintiff’s consent. I accept that in the circumstances an assault and battery occurred.
The fact that the first defendant was a police officer, acting in the purported exercise of his duties, does not derogate from the nature of the assault and battery as a trespass to the person. The acts of the first defendant need to be justified, if at all, on specific grounds which might be available under the general law or (as in fact pleaded) under statute.
The defendants plead that the first defendant was authorised to arrest the plaintiff (which is admitted). In my view, there was a basis for a reasonable belief that the plaintiff was committing an act of public nuisance, as defined under s 6 of the Summary Offences Act 2005 (Qld).
The issue on the pleadings and for my determination is whether “the force used by the first defendant against the plaintiff was reasonably necessary”.[60]
[60]Defence [4](d).
Section 615 of the PPRA relevantly states:
615 Power to use force against individuals
(1) It is lawful for a police officer exercising or attempting to exercise a power under this or any other Act against an individual, and anyone helping the police officer, to use reasonably necessary force to exercise the power.
Example—
A police officer may use reasonable force to prevent a person evading arrest.
(2) Also, it is lawful for a police officer to use reasonably necessary force to prevent a person from escaping from lawful custody.
(3) The force a police officer may use under this section does not include force likely to cause grievous bodily harm to a person or the person’s death.
Section 615 imposes a test of objective reasonable necessity.[61] The onus lies on the first defendant to establish that this test is satisfied on the balance of probabilities.[62] But, the civil standard of proof may vary according to the gravity of the fact to be proved in accordance with the Briginshaw principle.[63] In my view, an application of force by a policeman, in a position of authority, on a member of the public, requires proof of reasonable necessity at the higher end of the ‘sliding scale’.
[61]Whitelaw v O’Sullivan [2010] QCA 366 at [27].
[62]Bulsey & Anor v State of Queensland [2015] QCA 187 at [4].
[63]Briginshaw v Briginshaw (1938) 60 CLR 336, Dixon J at 361-2.
In R v DBG [2013] QCA 370, the Court of Appeal considered whether what was ‘reasonable’ took into account “personal standards or prevailing community views”. At [31], the court observed that the jurors were to assess whether force was reasonable by reference to their own assessment of reasonableness, not via abstract community standards of reasonableness and then adopt it as the measure against which the reasonableness of the conduct was to be adjudged.
The plaintiff submits that the force of the blow administered by the first defendant’s knee was, objectively, likely to cause grievous bodily harm and the force used was therefore, pursuant to s 615(3), beyond authority.
Grievous bodily harm is defined under s 1 of the Criminal Code 1899 (Qld) as “any bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger life, or cause or be likely to cause permanent injury or death”.
The medical opinion of Dr Holborn referred to below was that a fracture of the right transverse process of L3 should spontaneously heal within six weeks.[64] It follows that I do not accept that the injury sustained in this case falls within the definition of grievous bodily harm.
[64]Reasons at [118].
It follows that the issue of whether the police acted beyond authority rests solely on the issue of reasonable necessity. In order to determine this issue, it is necessary to examine this legal justification in light of each application of force as opposed to the event as a whole.
Mr Darren Robert Haworth, an AO4 Training Officer currently performing duties as an instructor trainer in the Operational Skills Section at the Queensland Police Academy, provided a report to the court at the request of the solicitors for the defendants. Mr Haworth was employed by the Queensland Police as a training officer for over 12 years and purported to give expert opinion evidence about the use of force by officers employed by the Queensland Police Force. His report was tendered without objection at trial and he was cross examined.[65]
[65]Exhibit 85.
Dr Terry Goldsworthy, a former police officer with over 28 years’ experience, provided a report to the solicitors for the plaintiff. Dr Goldsworthy is currently employed as an assistant professor in Criminology at Bond University and purported to give similar expert opinion evidence to that of Mr Haworth. His report was tendered without objection and he too was cross-examined at trial.[66]
[66]Exhibit 21.
This evidence was of some, but limited assistance to the court. Both reports were littered with non-expert commentary and opinion and based on unsubstantiated or hypothetical facts.
Grabbing the plaintiff’s shoulders
The CCTV footage shows a significant group of people engaged in a disturbance and that the plaintiff was within the confines of that group, even if he was arguably not present in the main scuffle. The plaintiff accepts he became involved to protect his sister and cousin. As I have set out above, I do not accept that the first defendant observed the plaintiff displaying aggression by physical assault of persons in the crowd of people,[67] or that the first defendant announced “police” to the plaintiff.
[67]Further and better particulars of the defence [2](a).
However, I accept the undisputed evidence that there was a disturbance and that the actions of the plaintiff were disorderly. There was no evidence as to the level of noise on the night but I accept it may sometimes be difficult for a police officer to try to reason through verbal communication with a person involved in a disturbance outside a nightclub along a busy strip such as Orchid Avenue at 4.00am on a Saturday morning.
In Mr Haworth’s opinion there was no reason to use verbal communication.[68] He pointed to the advantage in the element of surprise. Dr Goldsworthy conceded that there is no specific guideline requiring police officers to announce their presence.[69] The plaintiff relied on Dr Goldsworthy’s opinion that from the outset, open handed tactics by the first defendant “may have been effective”. In cross-examination, Dr Goldsworthy said that alternatives to force “could’ve been explored initially”, but agreed that police must prioritise getting the “situation under control quickly and easily”.[70]
[68]T4-67.
[69]T2-42.
[70]T2-40.
This view is consistent with the opinion of Mr Haworth that officers are required to undertake a threat assessment and tactical decision making process, the conclusions of which vary widely in outcomes dependent on circumstances.
The first defendant made a relatively quick decision to take the plaintiff by surprise and grabbed his shoulders before taking him to the ground. It may not have been the most optimal tactic, but nonetheless this application of force was, in my view, reasonably necessary to effect an arrest in the circumstances.
I find therefore that the first defendant’s grabbing of the plaintiff’s shoulders was justified in the circumstances.
First knee strike
The grabbing of the shoulders and first knee strike occurred almost simultaneously and were in my view a continuing course of conduct. It was uncontroversial and indeed unsurprising that the plaintiff, not knowing that the first defendant was a police officer, tried to pull away from him. Mr Haworth accepted that a knee strike to the thigh is a common technique used to distract an arrestee and effect an arrest with minimal chance of injury.
It follows, and I find (upon the above analysis), that the first knee strike which brought the plaintiff to the ground was reasonably necessary.
While this strike was reasonable, I reject the defendants’ pleaded case that the plaintiff was placed on the ground in an effort to prevent him from engaging in further violent acts. It was uncontroversial that in the early stages of the disturbance the plaintiff had pushed an unknown female to the ground in an effort to break up the fight and protect his sister.[71] It was also uncontroversial that the first defendant did not see the plaintiff do this. The defendants concede that the only violent act witnessed by the first defendant was the plaintiff’s “involvement in pulling and pushing people out of the fray”.[72] I find that the arrest of the plaintiff was made in an effort to prevent the plaintiff from committing an act of public nuisance, not from engaging in further violent acts.
[71]T3-13-14.
[72]T3-40.
Grazing and bruising above and around the right eye
Upon my earlier analysis, this injury was sustained in the course of applying reasonable force. It is therefore largely irrelevant to the plaintiff’s claim.
Second strike to the lower back
The first defendant struck the plaintiff in the lower back in order to force the plaintiff to lie on his stomach. This strike caused the significant fracture of the lower spine. Upon being brought to the ground, it is uncontroversial that the plaintiff was lying in a foetal-like position. At this stage, the first defendant had not told the plaintiff that he was being arrested nor that he was a police officer. I accept that the plaintiff was still unaware that the first defendant was a police officer or that he was being arrested.
The onus is on the defendants to prove that this application of force was reasonably necessary to effect the arrest in the circumstances where the plaintiff was already lying on the ground.[73] This would require a reasonable suspicion that the plaintiff, while lying in a foetal position on the ground, posed a continued risk of violence, or had an ability to evade arrest.
[73]Fraser JA in Bulsey & Anor v State of Queensland [2015] QCA 187 at [4] confirms that the onus is on the officer to prove that any force used was authorised or excused by law. Fraser JA cited Fullager J in Trobridge v Hardy (1955) 94 CLR 147 at 152: “It [is] for the defendant to justify [its conduct]…by reference to his office or otherwise”.
In Coffey v State of Queensland & Ors [2012] QCA 368, the Court of Appeal was critical of officers for using excessive force against a prisoner in unwarranted circumstances. This matter involved an action against three Corrective Services Officers for breaches of common law and statutory duties of care, assault, battery, false imprisonment, and malicious prosecution. The claim arose out of the officers using excessive force to obtain DNA samples from the appellant. Holmes JA agreed with the learned trial judge’s assertion:
That in a room containing multiple police and Corrective Services Officers a handcuffed prisoner who did not behave violently could not be guided safely to lay on the floor speaks for itself. The exercise was carried out in a hurried, ill-prepared and excessively forceful way without any proper regard for the safety of Mr Coffey. It warrants strong disapproval.[74]
[74]Coffey v The State of Queensland & Ors [2012] QSC 186 at [103].
Of course, no case is on all fours. In my view, the conduct of the officers in Coffey is far more serious. But there are similarities, namely the lack of threat posed by the plaintiff in this case and the hurried and excessive manner in which he was manoeuvred into the desired position. The learned trial judge in Coffey was particularly critical of the lack of “material forewarning” to the already handcuffed and vulnerable appellant.[75] Similarly, a direction to the plaintiff to roll onto his stomach from the foetal position was not afforded to him before he was forcefully kneed in the back.
[75]At [42].
In O’Connell v 1st Class Security P/L [2012] QDC 100, a nightclub bouncer was not afforded protection under s 615 PPRA for his involvement in “assisting” police in an arrest. The plaintiff was offering a manageable degree of resistance while police had him over the bonnet of their car, with handcuffs about to be placed on the plaintiff. The bouncer decided to intervene, bumped the officers aside and took the plaintiff to the ground, and broke the plaintiff’s leg under the force of the bouncer’s weight.
The arresting officers in O’Connell gave evidence that the plaintiff was mostly immobilised on the bonnet, and the officers were under no significant threat of violence. The arrest was largely routine, and did not require any extra force. Importantly, Andrews SC DCJ observed at [47] that:
Objectively: the constables were in control, the danger to be apprehended was minimal, the plaintiff’s final resistance was minimal, the only effect of the resistance was to delay the application of handcuffs.
Conclusion – is the injury ongoing?
The plaintiff accepts that ordinarily an injury such as that sustained by the plaintiff in this case would be expected to have fully resolved within 12 months but submits the circumstances of this case are “unusual” in that the symptoms are ongoing.
On an assessment of all of the evidence, I do not accept Dr Wallace’s conclusion that the plaintiff’s ongoing back issues are a direct result of the incident on 22 August 2009. His conclusion is based on assumptions which are not, in my view, made out or are contrary to the evidence. Dr Wallace was not told the full story by the plaintiff. For example, of his earlier back problems and that in the year following the incident the pain was minimal and at one point had resolved. In my view, the plaintiff’s self- reporting to Dr Wallace is unreliable. There are a variety of types of back pain and resultant incapacities reported by the plaintiff over the years. At various stages he has experienced all sorts of spasms (some as long as a week). He has described shooting pain, cramping, numbness, back pain not emanating from the fracture site, pain in his buttocks, down his legs, and into his feet. Sometimes it is more aggravated by sitting, at other times more by standing, sometimes when driving, other times not.
It follows that I am not satisfied on the balance of probabilities that the injury to the plaintiff’s right transverse process of L3 lumbar spine is ongoing.
I find on the balance of probabilities, that the injury to the plaintiff’s right transverse process of L3 lumbar spine, was fully resolved in just over 12 months of that injury having being sustained. That is, it was healed by 9 December 2010. This conclusion is supported by the following evidence (which I accept):
(a) The evidence of Dr Gillett, Dr Williams, Dr Douglas, Dr McCombe and Dr Wallace that the usual anticipated recovery period for the plaintiff’s injury of L3 lumbar spine is three to 12 months;
(b) The contemporaneous physiotherapy records of the plaintiff for the period September 2009 until December 2010 that the plaintiff reported no real problems or pain; that he had been doing physical training and running with no concerns; and that his back pain had fully resolved;
(c) The evidence of Dr Douglas and Dr Williams that the plaintiff’s symptoms are not consistent with the nature of his physical injuries;
(d) The effects as reported by the plaintiff are overstated and inconsistent with the nature of the injury;
(e) The objective evidence of the plaintiff’s activities as set out above in paragraph [169];
(f) The other contemporaneous medical records that the plaintiff had a previous history of back pain, the variety of his ongoing symptoms (such as sciatica), and the existence of other injuries such as disc bulges, that are not referrable to the injury to the plaintiff’s right transverse process of L3 lumbar spine; and
(g) The evidence of Dr Wallace that sciatic type pain would not be expected from a transverse fracture of the L3.
AMA guidelines
As an aside, the plaintiff submits that Dr Williams was unable to satisfactorily explain why the AMA guides assign a permanent impairment to such an injury, when on his view, it will heal with complete recovery [distinguishing Dr Wallace’s conclusion of the same assessment on the basis it was made with reference to the nature of the injury and resultant symptoms]. I accept that conceptually it is difficult to understand why a guideline would provide for a permanent impairment for a non-permanent injury. Although, I observe that in Dr Douglas’ opinion, whilst the AMA guidelines prescribe a 5% whole person impairment for the injury, this does not necessarily imply there would be ongoing symptoms. His explanation was that it was an injury of a certain type and that is why it was given a DRE Category II percentage impairment. I do not consider it necessary [nor am I able to on the evidence before me] to resolve this apparent anomaly because for the reasons summarised above, I have concluded that the L3 fracture suffered by the plaintiff healed completely by 9 December 2010.
Has the plaintiff suffered a psychiatric injury?
Dr Stephen Morgan
The plaintiff attended upon Dr Stephen Morgan, a registered psychologist, for the purpose of a medico-legal examination on 28 January 2014 and 19 April 2017.[152] Dr Morgan was not engaged in any treatment of the plaintiff. The Personality Assessment Inventory test was administered showing the clinical scale for depression to be significantly elevated. In his first report, Dr Morgan assessed the plaintiff as suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood. The impairment was assessed according to the PIRS system at 5%.[153]
[152]Report dated 5 February 2014 – Exhibit 16; Report 9 May 2017 – Exhibit 17.
[153]Exhibit 16, p 17.
As with most psychiatric injuries, the diagnosis was based on the self- reporting of the plaintiff, including that since the 22 August 2009 injury:
· He was unable to sit for any extended period;
· He was limited in attending some social/leisure events, including festivals and concerts;
· His general socialising is restricted and often he goes home in pain;
· He is restricted in sport and recreational activities – although he resumed cricket for the 2013/14 season, but he needed to warm up;
· He had lost fitness and tone (previously taken pride in through his efforts with the army); and
· He was waking most nights due to pain – estimated 5 – 7 hours of sleep per night.
The plaintiff also reported low moods, a loss of motivation, loss of energy, loss of confidence, pessimism, being less communicative, a preference to stay at home, decreased libido and capacity for intimacy.
In his second meeting with Dr Morgan the plaintiff told him that he had been close to self-harm and suicide during 2013. Dr Morgan considered that this reported symptom met the criteria for Major Depressive Disorder. The impairment was assessed under PIRS at 6%.
In my view, the weight to be afforded to Dr Morgan’s reports is diminished to a great extent due to the plaintiff’s failure to be transparent and his tendency to overstate his incapacities and understate his activities. For example:
(a) Contrary to other evidence, the plaintiff denied any pre-injury contact with any psychologist, psychiatrist or professional helping service;[154]
[154]See [111] of these Reasons.
(b) Under cross examination, Dr Morgan accepted that the plaintiff’s evidence that he was not sociable and did not enjoy human contact was inconsistent with attending a music festival, listening to bands, going to social clubs, and attending football games.[155]
[155]T2-9.
(c) Dr Morgan also accepted that he was not aware that when the plaintiff was living in the Warnervale area he was initiating contact with friends and drinking. He said more detail about such socialising may have changed his opinion. He did not consider he would change his assessment of a mild impairment because of the loss of libido and the plaintiff’s concern for the sustainability of his relationship;
(d) Dr Morgan did not have the opportunity to interview the plaintiff’s fiancée Katie about his reporting of loss of energy and irritability and loss of confidence and low mood;
(e) Dr Morgan agreed that a loss of self-confidence would be inconsistent with the plaintiff having a modelling profile;
(f) Dr Morgan accepted that attending the gym for eight weeks to significantly change a body shape would suggest someone had a lot of energy, as opposed to a loss of energy, although he noted that those suffering from depression and injuries are often referred to gyms as part of rehabilitation.
Dr Jon Steinberg
Dr Jon Samuel Steinberg, a consultant psychiatrist, gave evidence on behalf of the defendants. His report was prepared after consulting with the plaintiff for 90 minutes on 5 December 2016.[156]
[156]Exhibit 30.
The plaintiff told Dr Steinberg that he spent most of his time staring at a brick wall. That he watches television; cleans his house; spends time doing exercises with weights for strengthening. He enjoys the beach with his partner and spending time with his friends. And he has a good relationship with his girlfriend and brother.
Dr Steinberg opined that there was no evidence that the plaintiff currently suffers from symptoms consistent with a psychiatric disorder.[157] He described the plaintiff as having a bright mood, able to maintain a relationship with friends and family, including his girlfriend, who he met subsequent to the events of August 2009. He reviewed some extracts of the Facebook pages and considered this snapshot supported his view that the plaintiff was functioning reasonably well socially and in his relationships. In concluding that the plaintiff was not suffering from a psychiatric condition, Dr Steinberg opined that the plaintiff was upset about what happened with the police; that he thought the police mistreated him and had marked him in some way; that he felt persecuted by the police and he was angry about that. He did not consider that anger or misbelief about the police’s behaviour constituted a psychiatric illness.
[157]T2-74.
In Dr Steinberg’s opinion, the plaintiff did not show any signs of a Depressive Illness or a Major Depressive Disorder.
The plaintiff told Dr Steinberg that he was suicidal in 2013 (although he had not carried out any suicidal acts) when he was living in Newcastle at which time he saw a counsellor who was of no help. The plaintiff also said that he had not experienced suicidal ideation since 2013.
Relevantly, Dr Steinberg accepted that in 2013 the plaintiff may have been suffering from a stressful situation and transient episodes of depressed mood and that he may have been suicidal at that time. In his view, an adjustment disorder in response to the stress the plaintiff was going through in 2013 might have occurred, which could have been associated with suicidal thoughts.
Conclusion in relation to the plaintiff’s psychiatric injury
On the above analysis, I do not accept that on the balance of probabilities the plaintiff is suffering from a psychiatric injury. However, I find on the balance of probabilities the plaintiff was suffering transient episodes of depressed mood in 2013.
Are the defendants liable for any Psychiatric Injury?
Given my finding that the injury suffered by the plaintiff was completely resolved by 9 December 2010, it follows that the transient episode of depressed mood the plaintiff suffered in 2013 is not causatively linked to this injury.
I therefore find that the defendants are not liable for any psychiatric injury suffered by the plaintiff.
Quantum
Given the conclusions I have reached on liability, the quantum of the plaintiff’s claim for damages is confined.
The plaintiff was born on 24 February 1987. He was 22 at the time of the injury and he is now 30. He retired on a pension from the army on 15 August 2012. Apart from a relatively short period in 2013, he has not been in paid employment or attempted to obtain paid employment since that time. He is now engaged to Katie. Together they have a young son.
General damages
The plaintiff claims a degree of permanent impairment in respect of his injury to the lumbar spine and psychiatric/psychological injuries.
Damages for pain, suffering and loss of amenities of life (general damages) are to be assessed pursuant to s 61 of the Civil Liability Act2003 (Qld) as in force at 22 August 2009 (Reprint 2B). This involves assigning a single Injury Scale Value (ISV) to the injury. The ISV is assigned by reference to Sch 4 to the repealed Civil Liability Regulation 2003 (Qld) as in force at 22 August 2009 (Reprint 1B) which prescribes an ISV range for individual injuries. The relevant items in the schedule are as follows:
item 12 ‘moderate mental disorder’, ISV range of 2-10
item 17, ‘minor facial injury’, ISV range of 0-5
item 92, ‘moderate thoracic or lumbar spine injury – fracture, disc prolapse or nerve root compression or damage’, ISV range of 5-15.
Item 92 is relevant to the present assessment. The commentary to this item states:
An ISV at or near the bottom of the range will be appropriate for an uncomplicated fracture of a posterior element of 1 or more of the vertebral segments, for example spinous or transverse processes, without neurological impairment.
The plaintiff contends an ISV of 10 corresponding to a general damages award of $11,000 is justified, taking into account the psychiatric injury (and to a small extent the facial injury). The defendants agree that an ISV of 10 and a general damages award of $11,000 is appropriate for the lower back injury alone. Given my findings, I would have assessed the ISV to be at the lower end of the range. However, the agreed ISV is in the middle of the range for a lumbar spine injury and in light of the defendants’ concession, I accept an IVS of 10 is appropriate. It follows that the plaintiff has made out his claim under this head. I assess general damages in the sum of $11,000.
Economic loss
Section 55 of the Civil Liability Act 2002 (Qld) (Reprint 2A) (CLA) regulates the award of damages for economic loss in this case. This section provides:
55 When earnings cannot be precisely calculated
(1)This section applies if a court is considering making an award of damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss.
(2)The court may only award damages if it is satisfied that the person has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters.
(3)If the court awards damages, the court must state the assumptions on which the award is based and the methodology it used to arrive at the award.
(4)The limitation mentioned in section 54 (2) applies to an award of damages under this section.
The plaintiff claims that the starting point for his claim for economic loss is that the subject injury caused his medical retirement from the army. That is, but for the injury he would have continued as a soldier. The plaintiff retired from the army on 15 August 2012. Given my findings that the injury was healed in 2010, there is no causative link between his retirement and the injury. Bearing in mind s 55(2) of the CLA, I am not satisfied that the plaintiff will suffer any future economic loss. With this provision in mind however, I am satisfied that a component of the plaintiff’s claim for past economic loss remains open on my findings.
Past economic loss
The plaintiff’s claim for past economic loss is on the basis that due to his injury he lost the income-earning opportunity to engage in field exercise and overseas deployment. The plaintiff’s evidence was that Operation Talisman Sabre runs every two years and involved “tier 1” periods totalling four weeks, and “tier 2” periods of at least four weeks. Operation Swift Eagle runs for eight weeks and would have been a “tier 2” exercise for the plaintiff’s trade. In addition, the plaintiff referred to every year there being “Infantry Minor Tactics” which ran for two weeks classified as “tier 1” and a trade ammunition and explosives demolition which lasts for two weeks classified as “tier 2”. There was a general assertion that the amounts received on such exercises were similar to deployment pay. The plaintiff accepted that the calculation required an estimate. I accept that a plaintiff is not to be deprived of damages because the evidence does not permit a mathematical calculation.[158] Further, any difficulty in calculation is not ordinarily taken as a ground for reducing or increasing the award.[159]
[158]Hamlyn v Hann and Heagney [1967] SASR 387 per Mitchell J at 401.
[159]Yorkshire Electricity Board v Naylor [1968] AC 529 at 548: cited with approval recently in AAI Limited v Marinkovic [2017] QCA 54 at [71].
The plaintiff also submits that he lost the chance to deploy to East Timor and Afghanistan and earn extra allowances (tax free). There was some evidence that deployments were worth an extra $30,000.
The assessment of whether the plaintiff suffered a diminished capacity as a result of his injury in this case is complicated by the evidence that at the time of the injury, the plaintiff was suffering from bilateral compartment syndrome and was on restrictions. On the evidence, the plaintiff’s prospects of deployment until after his operation for compartment syndrome in 2011 were, in my view, rather limited.
Having considered the principles espoused in the authorities such as Malec v JC HuttonPty Ltd,[160] I accept that the possibility (amounting to less than a 50% likelihood) of diminished capacity leading to actual economic loss must be taken into account.
[160][1990] 169 CLR 638. The principles in Malec were applied in Paskins v Hail Creek Coal Pty Ltd [2017] QSC 190 at [135] and followed in Beaven v Wagner Industrial Services Pty Ltd [2017] QCA 246.
In the present case, as difficult as it is, I accept that there is some possibility (well less than 50%) that the injury sustained by the plaintiff from 22 August 2009 until 9 December 2010, resulted in a diminished earning capacity because he lost the opportunity to be deployed overseas and attend some field exercises. Assuming the best possibility for the plaintiff is that he was deployed for 8 months and was able to do one exercise for 8 weeks, and allowing a discount for what I consider a well less than 50% prospect of that happening, and taking into account an amount for interest over 8 years, I assess damages for past economic loss in the sum of $15,000.
Special damages and out of pocket expenses
The plaintiff claims the sum of $3,953.33 by way of special damages for pharmaceutical expenses between May 2014 and May 2017;[161] travel expenses between 24 August 2009 and 22 May 2017;[162] Notice of Past Benefits from Medicare[163] and gap expenses. Of the amounts claimed, only some of the travel expenses and some Medicare and gap expenses (the exact amount is not clear on the evidence) were incurred during the period of the plaintiff’s injury. Doing the best I can on the material before me, I assess special damages in the sum of $1,500.
[161]Exhibit 12.
[162]Exhibit 13
[163]Exhibit 14.
The plaintiff claims a global sum of $10,000 for future pharmaceuticals and chiropractic treatment. Again, given my findings, there is no basis for such an award.
Summary of damages assessed
In summary, damages are assessed as follows:
Head of damage Pain, suffering and loss of amenities of life Assessed ISV 10 $11,000 Past economic loss $15,000 Interest on past economic loss (included above) Future economic loss Nil Loss of benefit of employer superannuation Nil Special damages and out-of-pocket expenses $1,5000 Future expenses Nil
Orders
There will be judgment for the plaintiff in the sum of $27,500.
I will hear the parties as to costs and to that end I direct that any submissions in respect of costs, or alternatively a proposed draft order if the parties are agreed, be filed within twenty-one (21) days.