Adams v State of NSW

[2002] NSWSC 530

CITATION:	Adams v State of NSW [2002] NSWSC 530 revised - 17/06/2002
CURRENT JURISDICTION:	Common law
FILE NUMBER(S):	SC 20431/99
HEARING DATE(S):	13, 14, 15, 20, 21, 22 & 23 May 2002
JUDGMENT DATE:	23 May 2002
PARTIES :	Vanessa Anne Adams v State of NSW & Ors
JUDGMENT OF:	O'Meally AJ at 1-54

COUNSEL :	Mr T J Clarke with Mr J H Pierce for the plaintiff Mr P Menzies QC with Mr G A Laughton for the defendants
SOLICITORS:	Keddies Solicitors (Plaintiff) Crown Solicitor's office (Defendant)
CATCHWORDS:	Negligence - Not established - Verdict for defendants
LEGISLATION CITED:	Police Services Act 1990, S213
DECISION:	1. Verdict for the defendants; 2. Plaintiff to pay the defendants' costs.

- 14 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

O’MEALLY AJ

THURSDAY, 23 MAY 2002

20431/99 VANESSA ANNE ADAMS

v

JUDGMENT

1 HIS HONOUR: Vanessa Anne Adams has sued the State of New South Wales and Constable Melissa Anne Mutton and Constable Gary Roy Mutton in respect of injuries she received on 30th September 1996. On that day the second and third defendants, who since have married, were, as they still are, members of the New South Wales Police Service. They were then attached to the Ashfield police station.

2 On 30th September 1996 the plaintiff resided in Gower Street, Ashfield. She was sharing the premises with a friend, Gary Robert Duffield. At about 1.30 in the morning of 30th September the plaintiff fell from a tree, and was rendered paraplegic suffering also fractures to her skull. She says her fall was caused by the negligence of the two police officers.

The Plaintiff

3 The plaintiff was born on 16th October 1969 so that now she is 33 years old. She was educated in Maitland, obtaining her School Certificate, and intended to pursue art studies which, as a consequence of a motor vehicle accident, she deferred for one year. In due course, however, she obtained a certificate from the East Sydney Art College.

4 Afterwards she obtained employment performing secretarial duties and sales duties for a number of employers. In 1992, by which time she had moved to Sydney and was working here, she met one Damian Watkins and a relationship was formed. Watkins was a heroin addict and by force or otherwise introduced the plaintiff to heroin. Unfortunately she also became addicted and was a constant user of heroin in 1992 and 1993. The relationship with Watkins was violent. He frequently abused her and forced her to commit crimes to obtain money to purchase heroin. It was fortuitous that the plaintiff met Mr Duffield, who was a friend of the plaintiff's brother. Mr Duffield became aware of her addiction and the volatile nature of the relationship with Watkins and sought to help her.

5 Mr Duffield endeavoured, with some considerable measure of success, to assist her recovery from heroin dependence. He occupied premises with her as her flate mate so that she would be away from the presence and influence of Watkins. The plaintiff commenced a methadone programme under the supervision of Dr Underwood at the United Gardens Clinic in Summer Hill. Generally the methadone programme seemed to be successful, and that and absence from Watkins assisted the plaintiff in putting her life back into reasonable order.

6 Later in 1995 she obtained employment as a nurse’s assistant at the Bethel Nursing Home in Ashfield and, after a period of training, obtained full-time employment there. It was work which she enjoyed. While she was employed at the nursing home she remained on the methadone programme and has continued on it to the present day.

The Plaintiff’s Account

7 Concerning the evening of 29-30 September 1996, the plaintiff's evidence, which generally is corroborated by Mr Duffield, is that her cat, which had had kittens, was not feeding them. The cat removed itself from the Gower Street premises and climbed the tree outside. It was a jaccaranda tree and in September was mostly free of foliage.

8 The plaintiff's evidence is that she climbed the tree in an endeavour to coax the cat down, but this was unsuccessful. Mr Duffield followed her to the tree and threw a number of stones to her, not more than three, as she was in the tree. She caught the second or third of them and threw it at the cat, which then ran from the tree. When these events occurred she was high in the tree, something in the order of six metres above the ground. Soon after the cat had left the tree, but before she descended from it, a police patrol wagon driven by the then Constable Melissa Anne Thorneycroft, in which Constable Gary Roy Mutton was also present, drove along Gower Street. Mr Duffield's presence at the foot of the jacaranda tree was observed by Constable Mutton, and as the vehicle passed under the tree Constable Mutton noticed a person in a high branch which extended out over the road.

9 The two police officers were passing along Gower Street on their way to premises in Liverpool Road, Ashfield near its intersection with Gower Street. The assignment given to the police officers was to back up a call in respect of a person who was to be dealt with under Schedule 2 of the Mental Health Act, and there was a possibility that that person would be behaving irrationally.

10 The versions of events which followed the police car’s stopping slightly beyond the tree in Gower Street are significantly different between those advanced by the plaintiff and Mr Duffield on the one hand, and those advanced by the two now Senior Constables Mutton on the other.

11 The plaintiff's evidence is that while she was in the tree Constable Gary Mutton approached the position at which Mr Duffield was standing. When he approached Mr Duffield Constable Mutton said, "What's going on here?" Mr Duffield, she said, replied, "It is fine, we are all right. We are all right. We are fine." She said that Mr Duffield was told to go and sit down, and remove himself from the immediate position at which he had been standing. She said also that Constable Mutton said to her, "Get down from the tree right now," and in doing so used an abrupt voice. He also said, "Hurry up, get down from that tree and stop wasting our time.”

12 The plaintiff said that she replied, "Okay, okay," but because of the words and the manner in which they were uttered she was scared, nervous and worried. The plaintiff also said that she had lights shining in her eyes from a Maglight torch which was blinding her eyes. She asked Constable Mutton to turn off the light, but there was no response. She commenced to come down the tree quickly, but was unable to see where she was stepping. When she began her descent her arms were around the tree.

13 She said that she was told twice to hurry and the "tone of voice scared” her “to hurry up and get down, to comply with them.” She said she tried to get down too quickly. Her method of descent she described as “basically sliding down the tree.” Her arms were not tight enough around the tree. The light in her eyes was blinding her. She attempted to turn her head away but that made it worse.

14 She said she stood on a branch which she thought was a safe one. It cracked, broke from underneath her, and she fell and landed on her back. The plaintiff cannot recall whether she had one or both of her feet on the branch when it snapped, though she did say that she had her right foot on it first and then “put my left foot on it and it snapped”. When the branch snapped the plaintiff fell to the road and hit her ahead, “really hard, then I was out cold for a few minutes.”

15 She said she remembered gaining consciousness and noticed that Gary Duffield was hysterical. She said that he kept saying, "Look what yous have done. Look what yous have done. Why, why, why?”

16 The plaintiff said that she endeavoured to get up herself, but couldn't feel her legs, and then realised she had broken her back. She said to the police, “Don't touch me, I am paralysed.” She also said, “Why, why, why, why did yous do it?” Soon thereafter an ambulance arrived and took her to Royal Prince Alfred Hospital.

Mr Duffield’s Account

17 Mr Duffield gave evidence that when the police vehicle pulled up the plaintiff was stationary in the tree. He saw the police vehicle approaching and told her there was a police car pulling up. He had thrown two stones to the plaintiff. She caught the second stone and threw it at the cat which then ran from the tree. At that time the plaintiff was higher than the position from which she fell. As noted earlier, at the time the police drove under the tree she was something in the order of six metres above the road. The position from which she fell was about three metres above the road.

18 The various positions she occupied have been marked by witnesses on photographs which constitute PX2 and PX3. There is no significant difference between the positions before and at the time of the fall fixed by various witnesses to the event. The photographs show the approximate state of the foliage in September 1996, though it is not known to me when they were taken.

19 Mr Duffield affirmed that he had said to the police when first approached that everything was fine and he added, “We are fine, she is on her way down.” He said that after that the police became heated. They said to him that he could not tell them what to do. Mr Duffield’s evidence is that the male constable said to the plaintiff, “Yous better come down from there” and these words were uttered in a very forceful and very impatient tone. The plaintiff “was struggling” by which he meant she was being rushed, going down too quickly and not safely.

20 The plaintiff said, “Don't hurry me, I can't see,” and at this time a torch was pointed up into the tree straight at the plaintiff. Mr Duffield said the plaintiff was very nervous. He recited the snapping of the branch and the fall of the plaintiff. Though there was a light directly across the road there was not much lighting and, according to Mr Duffield, it is a very dark area.

Constable Mutton’s Account

21 Constable Mutton's evidence is that he was a passenger in the police vehicle which was being driven by Constable Thorneycroft. As it drove along Gower Street he saw a man standing near its southern kerb looking up into a tree. As the car passed under the tree he saw a person sitting in a tree branch which hung over the road. The police vehicle stopped “just past the tree”. When the police vehicle stopped he approached, and by the time he had reached the base of the tree the plaintiff had removed herself from where he first saw her on the branch over the centre of the road to the position where it forked from the trunk, a descent of some three metres. He said to the person in the tree, “Wait there, are you all right?” He heard a female voice say, “I'm coming down.” Mr Duffield who was there said, “She is all right, she does this all the time.”

22 When the police vehicle came to a halt shortly beyond the level of the tree Constable Mutton considered that the person in the tree might have been the Schedule 2 patient who was the cause of their proceeding along Gower Street with the intention of going to Liverpool Road. Another question exercising his mind was whether there had been some form of domestic dispute which caused the plaintiff to remove herself from the male at the bottom of the tree.

23 The response, “I am coming down,” and the manner of it’s utterance satisfied him that the plaintiff was not the Schedule 2 patient, but the possibility of a domestic dispute remained.

24 Constable Mutton said that he watched the plaintiff climbing down from the tree. He described her descent as confident. As she was at or near a point three metres above the ground he turned to talk to Constable Thorneycroft and at the same time heard a sound that he described as a snap. He turned and saw the plaintiff fall to the road.

25 After the fall Mr Duffield said, “She's all right, she's all right,” and, according to Constable Mutton, he endeavoured to pick the plaintiff up. He was told by Mutton to move away and not touch the plaintiff. Constable Mutton acknowledged that this was said in a forceful tone. Whilst the plaintiff was on the ground Constable Mutton heard her say nothing. Specifically, there was no direction from the plaintiff not to touch her, nor did she ask, “Why did yous do it?.” He conceded that Mr Duffield became quite emotional after the fall.

26 Constable Mutton also conceded that torches were in the police vehicle, but denied they were used. The lighting in the vicinity was sufficient to enable him to see all that was necessary without the aid of torchlight. He could see that the person in the tree appeared to be a female, a fact which was confirmed upon hearing her voice.

Constable Thorneycroft’s Account

27 Constable Thorneycroft generally corroborated Constable Mutton's evidence. There are, however, between them as there are between the plaintiff and Mr Duffield, some minor inconsistencies and such inconsistencies generally are to be expected. Experience demonstrates that two witnesses seldom give a precisely identical description of observed events. Suspicion may arise about the accuracy of accounts which are identically given.

28 Constable Thorneycroft heard Constable Mutton ask the plaintiff while she was in the tree, “Are you all right?” Thorneycroft did not hear a response. She saw that the plaintiff appeared to be coming down. The plaintiff leant forward on to a small branch which snapped and she tumbled forward. Immediately Constable Thorneycroft ran to the police vehicle and used the police radio to call for ambulance assistance. She obtained first aid equipment which was kept in the police vehicle and handed a bandage to Constable Mutton who put it in the plaintiff’s left ear from which blood was emerging. She then ran 30 or 40 metres to Liverpool Road where their supervising Senior Constable and an ambulance, each there on account of the Schedule 2 patient, were located, and at her request they came to the scene.

29 Constable Thorneycroft swore that Constable Mutton did not have a torch, neither did she. There were torches in the police vehicle, but there was no need to use them. She denied that Constable Mutton had said, “Get down, we haven't got all night,” nor did the plaintiff say, “Don't hurry me.” Only once did Constable Mutton raise his voice to Mr Duffield and this occurred when he instructed Mr Duffield to stay away from the plaintiff and not pick her up. Neither the plaintiff nor Mr Duffield said anything at the scene to suggest that the police officers were in any way responsible for the plaintiff’s fall. Subsequently Constable Thorneycroft made notes of some aspects of her conversation with Mr Duffield in her police notebook.

What Did Happen?

30 The two descriptions of events cannot stand conformably together, and I am required to determine whether the version of events for which the plaintiff contends is probable.

31 If the plaintiff satisfies me that whilst in the tree a light was shone into her eyes by Constable Mutton, which blinded her, and if in pursuit of a direction wrongly given to her she hurried down, and if as a consequence she fell, I think she is entitled to succeed.

32 In determining what events occurred it is relevant to consider some further matters to which reference has not yet been made.

33 Seemingly 29th September 1996 was the day of a Rugby League grand final. The day began for the plaintiff by taking what was then her usual daily dose of 8mg of methadone. She conceded that she did consume some alcohol during the course of the afternoon, but not so much as would have affected her when she climbed the tree. Indeed, she asserted that she was perfectly sober and unaffected by alcohol when she climbed the tree.

34. During the afternoon, while Mr Duffield was watching television, the plaintiff was out walking her dog. Between 6:00 pm and 7:00 pm she had, she said, about three glasses of scotch and two glasses of champagne. The rest of the evening was spent watching television and videos. She then took a nap on a couch until woken by Mr Duffield. When woken she did not feel in any way intoxicated. Mr Duffield informed the plaintiff he had woken her because her cat again had rejected its kittens as it had the day before. The intention was to lock the cat in the room with the kittens, but the cat could not be located. The plaintiff said before the problem with her cat arose she had gone to the shops with Mr Duffield, some 200 metres away. Upon their return she and he looked for it in different places. The plaintiff found it in the jacaranda tree which she climbed with a view to forcing it down.

35 The evidence of Mr Duffield is that after 7:00 pm on 29th September he and the plaintiff shared a bottle of champagne and then consumed from a 750ml bottle an amount of whisky. He conceded initially that the plaintiff had consumed one third of a standard size bottle of scotch, that would be some 250ml, and subsequently he said it may have been one or two glasses more or less. At some time during the evening the plaintiff fell asleep on a couch as they watched videos.

36 Near midnight the kittens “were screaming for food” and Mr Duffield went outside to check on the cat. Before doing that he went “up the road to get some cigarettes”. It was then that the plaintiff got up. Because the kittens “were screaming for food” a search for the cat was undertaken. Mr Duffield also said it was after he returned from the shops that the problem with the cat occurred. Because it was missing Mr Duffield looked for it at the back of the house; the plaintiff checked at the front, found it and called to him. By the time he arrived at the front of the house the cat had climbed the tree. He returned to the house to obtain cat food and when he returned the plaintiff was already in the tree. The plaintiff thought food would not succeed in enticing the cat from the tree and so the suggestion of using a stone was made. At this stage the cat was in the top of the tree and the plaintiff, seemingly, in the branch over the road. Two stones were thrown to her, the first she missed and she threw the second at the cat which then ran from the tree. When this occurred the plaintiff was stationary in the tree.

37 After she had fallen, but before the plaintiff was placed in the ambulance and taken to Royal Prince Alfred Hospital, Mr Duffield was spoken to by one Wayne Lucas who was then an ambulance officer. Mr. Lucas was told by a person, who could only have been Mr Duffield, that the plaintiff had consumed half a bottle of spirits. Mr Lucas noted this in his official record. In evidence Mr Lucas was unable to recall whether the police had torches, but he did say that in the course of examining the plaintiff he used his own torch, a neurotorch, and requested his colleague to back the ambulance closer so that some light from it would shine on the road where the plaintiff lay. The neurotorch was shone into the plaintiff’s eyes to test pupil reaction and it and the light from inside the ambulance were used to assist in physical examination.

38 After Mr Lucas examined the plaintiff he recorded his findings. At the time he was attending to her at the scene she had a Glasgow Coma Scale of 9. The Glasgow Coma Scale is used to evaluate, amongst other things, the level of consciousness and cognitive ability of a patient. A scale of 9 indicated the plaintiff’s cognitive ability was impaired. Her verbal responses were inappropriate, her words were not understandable and were incoherent. Motor responses and eye opening occurred only on painful stimulus. A scale of 9 is close to unconsciousness. By the time the plaintiff was admitted to Royal Prince Alfred Hospital the Coma Scale had risen to 12, which indicated an improvement to a state of confusion.

39 Mr Lucas made a contemporaneous note of the discussion which included a notation that the plaintiff had consumed half a bottle of spirits. At Royal Prince Alfred Hospital, to which Mr Duffield accompanied the plaintiff he was, because of his extreme state of upset, spoken to by a social worker. A copy of a report of that consultation is in evidence as PX16. The social worker noted, that Mr Duffield:

reported being in a state of numbness and disbelief. He said that he cannot believe it has happened. He reports that the patient was harmlessly showing off by climbing the tree and was frightened when the police showed up, lost her footing and fell on her back and hit her head. Gary says he wishes he could just wind back time 6 hours.”

In discussion with the social worker Mr Duffield made no mention that the plaintiff’s purpose in climbing the tree was to cause a cat to come down, nor that the police shone a torch at the plaintiff, nor that they spoke to her peremptorily, nor that they did anything which contributed to her fall.

40 The supervisor of Constable Mutton and Constable Thorneycroft suggested at the scene, before the ambulance removed the plaintiff to Royal Prince Alfred Hospital, that photographs be taken. This was because an approaching vehicle stopped and the supervisor thought it might contain media employees. An inquiry confirmed that the people in the vehicle which had stopped were indeed from the media, and it was anticipated one or more media outlets might make subsequent inquiries about the fall and the plaintiff’s condition. As a consequence a COPS report was made in the police computer system. Relevantly it contains this entry:

When down to the lowest limb, approximately three to four metres above the road, the victim has held onto a smaller branch which has broken and the victim fell from the tree, landing on the road on her head and upper back.

The contact with the ambulance and administration of first aid were referred to in the report, as were the circumstances in which the police vehicle pulled up.

41 Later that morning, at about 2.30, the police returned to the scene and took photographs, legends of which were recorded by Constable Thorneycroft in her police notebook. Those photographs were last seen at Ashfield Police Station, but all attempts to locate them have been unsuccessful. In that part of the conversation recorded in her notebook Mr Duffield was asked why the plaintiff was in the tree and answered “She just climbed up”. It is also recorded that he said the plaintiff had consumed about one third of a standard sized bottle of scotch. He denied he and the plaintiff had an argument that night.

42 A copy of the clinical notes made on 9 September 1996 after her admission to Royal North Shore Hospital, to which she was transferred from Royal Prince Alfred Hospital, are before me. Relevantly those notes contain this entry:

Today she gives v. angry and hurt history of having been plied with alcohol by flatmate Gary ( no t, her boyfriend, she says) and that he ‘knew’ he should have ‘left her alone’ to ‘sleep it off’ not ‘woken her’ as her “friend” (?ex-boyfriend) thought he observed Gary doing.
She can’t remember many details and thinks she was reaching for something.
(I understand her flatmates account is different)

The hospital notes also record her addiction to heroin and present methadone regime. Her interests in painting and photography were noted and: “Now grieving post accident & still in pain & blaming Gary re accident”.

43 There is no contemporaneous record of either the plaintiff’s or Mr Duffield’s having informed the police, Mr Lucas the ambulance officer, any doctor, nurse or the social worker of the fact that the plaintiff or Mr Duffield were acting in pursuit of an attempt to get a cat down from the jacaranda tree outside the Gower Street premises. Nor did either of them make any suggestion that the police were in any way responsible for the plaintiff's fall. No mention was made of a direction to descend from the tree, nor of torch light directed at the plaintiff.

44. I am not satisfied Constable Mutton did shine a light into the plaintiff’s eyes. The street light and the fact that the jaccaranda had lost most of its leaves, as one would expect to be the situation in September, made it unnecessary for Constable Mutton to use a torch. The lighting was sufficient to enable the plaintiff to catch the second stone thrown to her by Mr Duffield. I am not satisfied that Constable Mutton abruptly, peremptorily or otherwise directed the plaintiff to descend from the tree. Had he done so, particularly in the light of what other things were said and recorded, one would have expected some account or complaint of his conduct to have been conveyed to the ambulance officer or to staff at either hospital upon her admission or later and that some notation would have been made. I am not satisfied the plaintiff blamed the police at the scene, nor that she asked “Why, why, why did yous do it?” It is highly unlikely, by reason of her Glasgow Coma Scale of 9, that she would have said this or the other things which she claimed to have said or which Mr Duffield attributed to her. At that time she was close to unconsciousness.

45 I am satisfied that the plaintiff did consume at least one third of a bottle of whisky after 7:00 pm on 29 September 1996. I am also satisfied that she consumed an amount of champagne. She had taken 80 milligrams of methadone that morning. On his own admission, Mr Duffield had consumed more scotch than the plaintiff.

46 Before me is the report of Dr Judith Perl, a consultant pharmacologist. On an assumption that the plaintiff had consumed 375 ml of champagne, being half a bottle, and 250 ml of whisky, one third of a bottle, between 7:00 pm and 1:00 am, which she assumed to be the time of the accident (although in fact it was close to 1.30am), she expected the plaintiff would have had a blood alcohol reading of between 0.177 and 0.284, probably 0.230. She thought that the combined effect of alcohol and methadone would, if I might summarise her conclusions, have a synergistic effect.

47 The postulated concentration of alcohol, in the words of Dr Perl:

would generally exert effects on the brain resulting in significant impairment of balance and coordination. In extremely alcohol-tolerant individuals (alcoholics) this impairment of balance and coordination may not be as obviously visible to an observer and their manner of walking may not be as affected as one would expect from such a high BAC.

48 The plaintiff said in evidence that at the time the incident occurred she was not a regular drinker. Alcohol is likely to have a greater effect upon a person who is not a regular drinker than one who is, and the functions of perception, judgment, decision making, information processing, vigilance, visual functions and coordination are impaired by consumption of alcohol.

49 If the plaintiff had a blood alcohol concentration of 0.230 then the opinion of Dr Perl is that her cognitive and motor functions would have been impaired to a degree that her safety in climbing a tree would have been significantly compromised.

50 I have given the most careful consideration to the competing versions of the facts which have been given in evidence. I have the deepest sympathy for the plaintiff in her plight as a consequence of the injury she sustained, and I have the highest admiration for her attempts to overcome her heroin addiction which seems to have occurred through no fault of her own, but in the end I am not satisfied that the version of events sworn to by the plaintiff and Mr Duffield are correct. It is more probable that the plaintiff was skylarking in the jaccaranda tree while intoxicated and when alerted to the approach of the police vehicle decided to leave the tree and because of her state of intoxication failed to do so safely.

51 There are inconsistencies concerning the time and quantity of the consumption of alcohol. There are the absence of contemporaneous complaints about the actions of the police officers and of an account of the presence of the cat in the tree. These, also, have caused me to conclude that the version of events advanced on behalf of the plaintiff has not been established.

52 The consequence is that there will be a verdict for each defendant.

53 By s213 of the Police Service Act 1990 a member of the Police Service is not liable for injury caused by any act or omission in the exercise in good faith of a function conferred by law with respect to the protection of persons from injury or death. It was accepted by counsel for the plaintiff during the course of submissions that by reason of the provisions of s213 of the Police Service Act the second and third defendants are immune from liability in this case.

54 For what it is worth I order the plaintiff to pay the defendants’ costs as agreed or assessed.

oOo

Last Modified: 06/17/2002