Allen v State of NSW
[2012] NSWDC 119
•22 August 2012
District Court
New South Wales
Medium Neutral Citation: Allen v State of NSW [2012] NSWDC 119 Hearing dates: 23, 24, 25, 26, 27, 30, 31 July, 1, 2, 3 & 6 August 2012 Decision date: 22 August 2012 Jurisdiction: Civil Before: Levy SC DCJ Decision: 1.Verdict and judgment for the defendant;
2.The plaintiff is to pay the defendant's costs on the ordinary basis unless otherwise ordered;
3.The exhibits may be returned;
4.Liberty to apply on 7 days notice if further orders are required.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: TORTS - assault - whether plaintiff was subjected to three unlawful assaults whilst in police custody - disputed matters of fact Legislation Cited: Civil Liability Act 2002, s 3B(1)(a), s 16, s 52(1)(a)
Crown Proceedings Act 1988
Evidence Act 1995, s 128, s 135
Law Enforcement (Powers and Responsibilities) Act 2002, Pt 14, s 199(1)
Law Reform (Vicarious Liability) Act 1983
Summary Offences Act 1988, s 4A(1)
Surveillance Devices Act 2007Cases Cited: None Category: Principal judgment Parties: Ronald John Allen (Plaintiff)
State of New South Wales (Defendant)Representation: Mr S Kettle (Plaintiff)
Mr P Saidi (Defendant)
Stacks The Law Firm (Plaintiff)
Bartier Perry Pty Ltd (Defendant)
File Number(s): 2011/74572 Publication restriction: None
Judgment
Table of Contents
Nature of case
[1] - [2]
Issues
[3]
Evidence overview
[4] - [8]
Facts not in dispute
[9] - [40]
Plaintiff's personal background
[10] - [30]
The alleged assaults
[31]
Subsequent Local Court proceedings
[32] - [33]
Matters relating to damages
[34] - [40]
Credibility and reliability of testimony
[41] - [117]
Preface to credit findings
[42] - [45]
Mr Johnson and Mr Langby
[46]
Mr Brown
[47] - [58]
Ms Hughes
[59] - [62]
Mrs Allen
[63] - [65]
Inspector East
[66] - [70]
Senior Constable O'Brien
[71] - [79]
Former Probationary Constable Chate
[80] - [87]
Senior Constable Chippindale
[77] - [98]
Senior Constable Rigby
[99] - [107]
The plaintiff
[108] - [119]
DVD footage
[120] - [127]
Findings concerning the alleged first incident
[128] - [166]
Findings concerning the alleged second incident
[167] - [259]
Explanation for differing witness perspectives
[170] - [185]
Claimed assault in charge room
[186] - [192]
Claimed assault when placed in dock
[193] - [197]
Claimed assault in dock
[198] - [254]
Conclusions concerning second alleged incident
[255] - [259]
Findings concerning the alleged third incident
[260] - [267]
Notional assessment of damages
[268] - [298]
Disposition
[299]
Costs
[300]
Orders
[301]
Nature of case
The plaintiff claims that in the late evening of Saturday 22 March, and in the early hours of the morning of Sunday 23 March 2008, at Bowral, NSW, during which time it is beyond dispute that he was severely intoxicated as a result of having consumed a considerable amount of alcohol earlier during the course of that day and evening, he was allegedly the victim of 3 separate unlawful assaults committed upon him by a number of police officers whilst he was in their lawful custody at the Bowral Police Station. Those claimed assaults were as follows:
(1) At about midnight on the night in question, after the plaintiff had been lawfully arrested outside the Royal Hotel in Bong Bong St, Bowral, after he had been asked to leave that hotel, the plaintiff claims his face was intentionally, and with excessive force, pushed or rammed into contact with the closed door of a police wagon whilst he was being frisk searched, and before being placed in that police vehicle in order to be conveyed to Bowral Police Station ("the first alleged incident");
(2) Subsequently, whilst the plaintiff was being detained within the confined space of the perspex dock enclosure in the charge room located at Bowral Police Station, he claims he was intentionally, and unlawfully punched and assaulted by the arresting police officer, following which a melee ensued, which also involved two other police officers ("the second alleged incident");
(3) Later, whilst the plaintiff was in the course of being transferred from the dock enclosure in the charge room at the Bowral Police Station to a holding cell in that police station, he claims he was intentionally, and with excessive force, he was assaulted by being unlawfully pushed into a wall ("the third alleged incident").
The State of NSW has been sued as the defendant in the proceedings pursuant to the provisions of the Crown Proceedings Act 1988 and the provisions of the Law Reform (Vicarious Liability) Act 1983. All of the allegations of assault inherent in the three alleged incidents were disputed by the police officers who were involved in each of the events in question.
Issues
The question of whether or not the plaintiff was assaulted on any of the three occasions that he has claimed, raises matters of fact to be determined according to an assessment of the credibility and the reliability of the testimony given by the respective witnesses. The pivotal determining issue has been identified as being the reliability and credibility of conflicting testimony contained in the respective versions of the events in question. At issue, regarding the allegations of assault, is the reliability of the recollection of the plaintiff, who was at the time significantly intoxicated, in contrast to the account of the events as related in the evidence of the police officers involved in the respective incidents.
Evidence overview
The oral evidence in the plaintiff's case came from the plaintiff, Mr Allen, Mr Ashley Brown, a friend of the plaintiff and a drinking companion on the day in question, the plaintiff's former partner Ms Tracy Hughes, his mother, Mrs Lorraine Allen, and former Inspector Hamish East, the police officer who was in charge at Bowral Police Station at the time, and who had the responsibility of investigating the plaintiff's complaints of alleged mistreatment by police officers.
The plaintiff also relied upon the images comprising the CCTV footage which visually recorded the events that occurred in the charge room dock enclosure at Bowral Police Station at the times in question concerning the second incident. That dock enclosure resembled a structure akin to an elongated shower cubicle comprising 2 perspex panel walls encased in frames. It was fitted into a corner of the charge room and it had a metal framed and hinged door.
The oral evidence in the defendant's case came from Senior Constable Martyn Rigby, former Probationary Constable Paul Chate (the arresting officers), Senior Constable Trevor Chippindale (the acting Custody Sergeant) and Senior Constable Patricia O'Brien, who was on general station duties at Bowral Police Station at the time.
There was also a considerable body of documentary evidence in the form of statements, custody documentation and a police brief of evidence. Reference will be made to this material, where relevant.
On the damages issues, in addition to expert psychiatric reports, concurrent expert evidence was taken from two consultant psychiatrists, Associate Professor Jonathan Phillips, who was retained by the solicitor for the plaintiff, and Dr Robert Lewin, who was retained by the solicitor for the defendant. That concurrent evidence, whilst arranged at short notice, helpfully served to narrow and focus the damages issues calling for decision in the case.
Facts not in dispute
In the paragraphs that follow, I set out the background facts that are not the subject of controversy.
Plaintiff's personal background
The plaintiff is aged 40 years. At the time of the alleged assault he was aged 36 years. He had left school in Year 10. For some years he was self-employed in a gyprocking partnership business. From mid-2007 until 31 March 2008 he worked as a trades assistant sub-contractor in a steel fabrication business. He claims that he relinquished that employment as a result of the events with which this litigation is concerned. At the time of the alleged assaults he had been separated from his partner of 18 years, with whom he has a son who is now a teenager. The plaintiff had an active sporting background. He had played football, boxing, and had also played representative hockey for Australia, as well as coaching hockey for children.
In 2006, the plaintiff suffered a back injury, as a consequence of his sporting pursuits. This has left him with chronic back pain. This required him to take significant quantities of strong prescription painkilling medications. There is common ground within the expert medical evidence to the effect that before the events in question, the plaintiff had become addicted to this painkilling medication.
The plaintiff had a longstanding pre-existing problematic pattern concerning his recreational use of alcohol. Before the alleged assault this involved the plaintiff taking alcohol only occasionally during the week. I accept that his pattern of alcohol use did not interfere with his ability to effectively continue in his work. However, on the weekends, he used to engage in binge drinking, and during these episodes, he often drank large quantities of alcohol to the point of intoxication.
The plaintiff's former partner, Ms Hughes, gave evidence. She stated that at about 4 months prior to the events of 22 and 23 March 2008, she and the plaintiff had separated from their 18 year relationship. She had severed their relationship because the plaintiff had become involved with another woman many years his junior. It was nevertheless plain that Ms Hughes sought to give an unbiased account of events.
Ms Hughes described the plaintiff's pre-incident involvement in a lot of sport. She said he was not the type of person who would be moping around in a depressive state during the time when they lived together. This was in apparent contrast to an answer she gave to a question I had posed to her at T242.14 - T242.41 as follows:
"Q. I understand but from your knowledge of him beforehand I'm interested in your observation because a psychiatrist who has examined him on behalf of the defence has said that it's possible that there is an underlying depressive condition and I'm interested to know whether that was to your observation evident in the time before the incident when you knew him.
A. I don't know if I'd say it was evident, but I would say it was probably possible given his destructive behaviour the whole time that we were together, you know, he lived in the home with us, had a great business, had a very good sporting life, a great circle of friends and yet still managed to go out and get himself into trouble so I don't know if that would sort of qualify him for having some sort of underlying issue where most other people would be quite content with what they have.
Q. In the period before the 2008 incident, would you consider this to be an apt description of his attitude to life? "I find it easier to drink to block it all out."
A. Before?
Q. Yes.
A. I think that's pretty well a mantra all the way through. Yes.
HIS HONOUR: Yes, Mr Saidi.
CROSS EXAMINATION BY MR SAIDI
Q. His Honour asked questions using the term, or a variation of it, of depression. In answering his Honour's question, you understood, did you, what depression is and what it means?
A. Well, as far as anybody that's not a psychiatrist would, yeah."
Having regard to the psychiatric evidence, that opinion had to be discounted.
Ms Hughes described the plaintiff's recreational use of alcohol as being in the context of him never drinking at home. Instead, she said he would go out drinking with his friends on Friday and Saturday nights. This would take the form of heavy binge drinking bouts. She said he did not drink significantly during the working week. She also described him as being a person who did not do a lot around the house when they had lived together. She described the plaintiff as a person who was "mouthy"; and a person who would not ordinarily take a backward step in a situation.
The case for the defendant is that the plaintiff's claimed psychological problems are unrelated to the alleged assaults. The defendant also claimed the plaintiff had unreasonably failed to mitigate his claimed losses.
The defendant also made submissions on some aspects of the plaintiff's circumstances concerning his claim for damages, from a perspective that, it was submitted, adversely affected the credibility of his testimony and his claim for economic loss and generally.
The plaintiff's mother, Mrs Allen, gave a general description of the plaintiff's pre-incident situation. She described him as having been a very good tradesman and worker. She said he had been very good with children, and was an accomplished sportsman and a committed hockey coach. She also described him as having had a friendly and happy disposition. In contrast to the evidence given by Ms Hughes that I have earlier cited, she was adamant that the plaintiff had no underlying depressive condition before the events in question.
Mrs Allen was aware that in January 2008 the plaintiff had separated from his long-time relationship with Ms Hughes, but she stated that to her occasional and relatively limited observation, he had been looking after himself adequately when he was living alone in the months after he had separated from Ms Hughes and before the events in question.
In my view, Ms Hughes, reliably described the events leading to the arrest of the plaintiff. Her evidence on damages issues stands to be viewed in conjunction with the evidence given by Mrs Allen, notably on the question of whether the plaintiff had depression before the alleged events.
The plaintiff consulted his general practitioner, Dr Hanbury, 6 months after the events. The general practitioner diagnosed depression and prescribed anti-depressants, which were ceased due to a drug reaction. The plaintiff was then referred for counselling. In his report dated 15 September 2010, Dr Hanbury diagnosed major depression due to the alleged assault, but also noted other issues to do with relationship break-up, alcohol abuse and chronic back pain.
After the events in question the plaintiff intermittently attended only a limited number of counselling sessions with a mental health nurse, Ms Toscan, who ran an anger management support program in the local area.
On 22 December 2010, at the request of his solicitor, the plaintiff was assessed by Associate Professor Jonathan Phillips, a consultant psychiatrist. In his ensuing report dated 21 February 2011, which formed part of Exhibit "A", Associate Professor Phillips expressed the opinion that before the assaults occurred, the plaintiff had been vulnerable to developing mental health problems. He expressed the opinion that the alleged assaults were an aggravating factor which had triggered in the plaintiff a psychological decompensation with the development of an admixture of symptoms of anxiety and depression. He was of the opinion that this satisfied the diagnostic threshold for diagnosis of an adjustment disorder with mixed anxiety and depressed mood, which was of sufficient intensity to interfere with the smooth conduct and quality of the plaintiff's day-to-day life. Associate Professor Phillips expressed concern over the plaintiff's significant alcohol related problems and noted that the plaintiff was not psychologically oriented in the therapeutic sense, which presented difficulties for options for treatment.
On 6 May 2011, Associate Professor Phillips issued a further commentary report which in essence confirmed his earlier expressed opinions, but also acknowledged that the plaintiff may have had alcohol abuse issues before the events in question. He also identified the alleged assaults as a tipping point in the plaintiff's psychological life. He said that those events operated to materially contribute to the onset of the plaintiff's adjustment disorder, mixed anxiety and depressed mood, so as to render these conditions chronic in nature.
On 23 November 2011, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Robert Lewin, a consultant psychiatrist. In his report dated 23 November 2011, Dr Lewin stated that it was possible the plaintiff had an underlying depressive condition. He said that the only way of determining this was for the plaintiff to withdraw from alcohol use and from his iatrogenic dependence on the narcotic, codeine. In diagnosing those conditions, Dr Lewin did not diagnose any separate depressive disorder, although he acknowledged that the plaintiff had a range of depressive symptoms: Exhibit "1.2", pages 10 - 12.
Following a direction made at the commencement of the trial requiring that the consultant psychiatrists meet, on 27 July 2012 they met and prepared a joint report which narrowed the issues.
In their joint report dated 27 July 2012, (Exhibit "F") the expert psychiatrists noted their consensus that the plaintiff had a disrupted childhood; he had a chronic history of alcohol related problems suggesting a physiological addiction to alcohol; he had an addiction to the prescription drug Panadeine Forte relating to treatment of his unrelated back condition; he had feelings of intense anger and bewilderment following the events, and the plaintiff had a history of depression spectrum and anxiety spectrum symptoms. Neither expert considered there was any evidence of a major depressive disorder or post-traumatic stress disorder present in the plaintiff.
The joint report of the psychiatrists noted there was a degree of disagreement between them as to whether there was a psychiatric diagnosis present in the plaintiff. In that regard, Dr Lewin considered that withdrawal from substance dependence should occur before a diagnosis could be achieved. In contrast Dr Phillips was satisfied that it was more likely that the plaintiff had developed an adjustment disorder with mixed anxiety and depressed mood.
Both experts agreed the plaintiff was significantly impaired and required treatment, and was currently unfit to carry out his pre-injury work due to his daily use of alcohol. Significantly, albeit with some caution, the experts accepted that the trigger to the onset of the plaintiff's mental health symptoms was the incident involving the police.
The alleged assaults
The factual basis of the alleged assaults claimed by the plaintiff have already been summarised in the introduction to these reasons at paragraph [1]. The resolution of the specific conflicting factual assertions made by the respective parties is dependent upon the findings to be made concerning the credibility and the reliability of the various testimonies given in these proceedings. I will analyse the evidence touching upon each of the three alleged incidents when stating my findings on those matters.
Subsequent Local Court proceedings
The plaintiff was released on bail at 03:27am on 23 March 2008. On 21 April 2008, at Moss Vale Local Court, the plaintiff pleaded guilty to charges involving failure to obey a direction made pursuant to Pt 14, s 199(1) of the Law Enforcement (Powers and Responsibilities) Act 2002, and in relation to his use of offensive language on the night in question. He was fined a total of $300 in respect of these offences.
Following the investigations undertaken by Inspector East, briefs of evidence were prepared by the DPP concerning charges of assault laid against police officers. Exhibit "P" comprises the brief of evidence relating to the charge laid against Senior Constable Rigby. On 6 February 2009, in the Local Court at Goulburn, all of those charges were dismissed at the conclusion of the prosecutor's case.
Matters relating to damages
The plaintiff claims that since the alleged assaults, his life has taken an untoward turn in that he has become an alcoholic, he has been unable to work, and is unable to carry out day-to-day self-care tasks because of lack of motivation, depression and negative thoughts of bewilderment concerning what happened to him whilst in police custody.
Ms Hughes described the plaintiff's pre-incident situation as having been a successful primary earner and provider in their relationship. She said he had worked regularly and provided the household with the necessary monies required for rent, food, motor vehicle expenses and the like. She also described the plaintiff's pre-incident personality as confident, being full of himself, and being outgoing and assertive. Ms Hughes also described the plaintiff as having had a great gyprocking business before the events in question.
Mrs Allen described a significant change in her observations of the plaintiff after the events in question. She said "... he's just - just seems to have gone bad": T265.14. In viewing Mrs Allen's evidence as a whole, it is plain that she was describing the plaintiff's present situation as being depressed and of being "down", and having been affected by "bad nerves", unhappiness, and of having an attitude of lack of concern for himself and to the mundane tasks of home maintenance and self-care.
Mrs Allen said she now needs to keep an eye on the plaintiff. She described attending to virtually all of his practical day-to-day needs including cooking, cleaning, washing and driving because he does not appear to want to do anything for himself. She described a significant change in his pattern of drinking. She has been unable to get through to him in connection with her advice that he decrease his drinking of alcohol, which is now daily, commencing from when he rises in the morning and continuing throughout the day. She described the plaintiff's principal activities as just drinking and sleeping, and not much else.
Mrs Allen described these circumstances of the plaintiff as being very different compared to how he had managed his working, sporting and social life before the events in question. She described him as having lost interest in eating, as having lost weight, at times remaining unshaven and having let himself go somewhat. She stated that although the plaintiff was able to perform some limited tasks around the house when this was required due to indisposition on her part, she said that he has become forgetful, including to the extent of leaving kitchen appliances, such as a griller, on and unattended. She described the plaintiff as being unhappy with his life. She described the plaintiff as having gone downhill. She has ascribed this change to the timing of the incident in question, in 2008.
Mrs Allen likened the plaintiff's post-incident situation as being like having to care for an adult child.
The consideration of the events that are the subject of this litigation must proceed against the above background. Before considering those events it is necessary to deal with the credibility and reliability of testimony.
Credibility and reliability of testimony
The matter of the credibility and reliability of testimony is at the heart of the resolution of this litigation. Accordingly, before stating my findings on the contested issues, in the following paragraphs, I set out my findings concerning the credibility and reliability of testimony.
Preface to credit findings
Despite the fact that there was conflicting testimony concerning the critical events in issue in the proceedings, and notwithstanding the submissions made on behalf of the defendant to the contrary, I am satisfied that each of the witnesses on both sides of the record did their best to provide their honest account of the events as they perceived them to have occurred on the night in question.
As a consequence of that view, it is necessary to identify the conflicting bodies of evidence in the proceedings and to explain why, in arriving at my conclusions on the matters in issue, I have accepted some testimony in preference to others.
In my view, the key to that explanation is my conclusion that the differences can be readily accounted for according to the differing perceptions held by the respective witnesses at the time of the events, and the subsequent related reconstructions by some witnesses that reinforced those perceptions.
What follows in the ensuing paragraphs are my conclusions on credit issues and my reasons as to how I have reached my views on the credibility and the reliability of the respective witnesses.
Mr Johnson and Mr Langby
The evidence of Mr Drew Johnson and Mr Craig Langby comprised tendered statements prepared by investigating police. These witnesses were not required to give oral evidence. In these circumstances, there can be no challenge to their credibility. Nevertheless, the reliability of their stated observations stand to be evaluated in the conventional manner when weighed against the whole of the fabric of the evidence. That said, it is clear from their evidence that the plaintiff was considerably affected by alcohol when he was arrested, and before this, he had made himself a nuisance at the hotel to the extent that he had been asked to leave the premises because of his intoxication and his related behaviour. That evidence was not challenged and it is accepted.
Mr Brown
Mr Brown was an acquaintance of the plaintiff. He presented as an articulate witness. He holds a responsible position. Together with the plaintiff and others, he had been drinking throughout the afternoon and evening, first at the Highlands Golf Club, then at the Bowral Hotel, and then at the Royal Hotel, until the alleged first incident.
Mr Brown was not able to recall some details of the afternoon and evening. Many of his answers to the questions that were put to him in cross-examination in these proceedings were to the effect that he could not recall. This could be adequately explained by the passage of time and the fact that he, like the plaintiff, had consumed a considerable amount of alcohol during the course of the afternoon and evening in question. He said that although his recollection was not perfect, he had been at the golf club for some 2 or 3 hours in the afternoon, following which he and the plaintiff went to the Bowral Hotel, and then on to the Royal Hotel.
In his evidence in these proceedings, he could not recall how many hours he had been at these two hotels. Furthermore, he could not recall the quantities of alcoholic drinks he had consumed at these venues.
That evidence was in contrast to the recollections Mr Brown had retained concerning the events when he had given earlier evidence in Local Court proceedings on 6 February 2009 when the police officers were facing charges arising from the events in question. In his evidence on 6 February 2009, Mr Brown conceded that between the hours of 6.00pm and 11.00pm on the night in question, he had consumed some 11 cans of the alcoholic drink known as Jack Daniels. This was in addition to whatever alcohol he had earlier consumed at the golf club and at the Bowral Hotel. He agreed he had been drinking steadily and constantly from about mid-afternoon to midnight on the day in question. Mr Brown's evidence has to be weighed in the light of these matters.
Mr Brown stated that on the night in question, when he was outside the Royal Hotel in the presence of the plaintiff when the police arrived, he was standing some 2 to 3 metres to the right of the plaintiff. Ordinarily, this ought to have placed him at a good vantage point to see the events that subsequently unfolded.
In that regard, it was therefore surprising that, as he had explained in his evidence given in the Local Court on 6 February 2009, he said he was "fairly certain" that the plaintiff did not have a cigarette in his hand at the time it was suggested he had been asked by police to drop it.
In my view, that evidence creates significant doubt as to the accuracy and contiguity of Mr Brown's recollection of the relevant events as they unfolded on the night. In my view, the cigarette incident seemed pivotal to the timing of the arrest of the plaintiff, as was described by the plaintiff, Ms Hughes and the police officers. In my view, these circumstances suggest that Mr Brown's recollections of the events on the night in question were incomplete as to details and therefore not entirely reliable.
Mr Brown stated that when the police officers escorted the plaintiff to the rear of the police wagon, from where he was standing, he believed he had seen the plaintiff's head, namely his face, being rammed or pushed into the back of the police wagon before that door had been opened. In his evidence in these proceedings, he said he was unsure as to whether there were police officers on either side of the plaintiff at that time. Furthermore, Mr Brown could not recall whether the plaintiff was doing anything at the time he believed that he had seen the plaintiff's face being rammed into the structure of the police wagon. He also said that at that time he saw no sign that the plaintiff had been offering any resistance to the police.
I gained the impression that although Mr Brown was being careful to relate the events according to his best recollections, those recollections were necessarily hampered by the passage of time, and by the fact of his consumption of a considerable amount of alcohol on the afternoon and on the night in question.
When weighing Mr Brown's evidence I must take into account the many significant expressions of qualification which, for good and cautious reason, he had placed on his evidence, together with the context of the background events in which he had consumed considerable quantities of alcohol. That factor alone would have undoubtedly been impacting on his senses and upon his ability to make accurate or reliable observations when he was taking in his perceptions of the circumstances now being examined in these proceedings.
In my view, the imperfect recollections of Mr Brown were evident from the example of his inability during this hearing in 2012, to recall, as he had been able to do when he gave evidence in the Local Court proceedings on 6 February 2009, as to how he had managed to travel from one drinking place to another during the afternoon of 22 March 2008, before spending the evening at the Royal Hotel.
I formed the view that although there was no reason to doubt that Mr Brown had given his evidence in these proceedings sincerely and according to his honest belief, the qualified nature of his recollections and perceptions indicated that I should not rely on his evidence as a basis for impugning and contradicting the evidence of the police officers involved in the alleged first incident.
Ms Hughes
I have generally accepted the evidence given by Ms Hughes. In arriving at this conclusion I have had due regard to the fact that she was the plaintiff's former long-time partner for some 18 years, and that the plaintiff had not only assumed the role of being the father to her child of a previous relationship, but that they also had a child together. Notwithstanding that those circumstances would normally suggest that she would have had an affinity of interest aligned to the plaintiff, there were counter-veiling considerations, including the circumstances in which their relationship ceased. My general impression was that Ms Hughes did her best to truthfully speak to the facts as she understood them.
The only reservation I had concerning the reliability of the evidence of Ms Hughes concerned the appropriateness of her opinion that I have already cited to the effect that the plaintiff exhibited signs of depression before the events in question.
I considered that her opinion to that effect was offered on the basis of an unsupported lay assumption, with an accompanying sense of hyperbole, seeking an explanation for the cessation of her relationship with the plaintiff. This view is not at all intended as a criticism of Ms Hughes. Rather, it is an observation as to what I considered to be the limitations on that aspect of her evidence, and the basis upon which that aspect of her testimony should be discounted. In all other respects, I accept the evidence given by Ms Hughes.
On the critical question of the plaintiff's pre-incident personality, and whether or not he was in the past depressed, for the reasons that follow, I prefer the evidence of the plaintiff's mother, Mrs Allen to the evidence of Ms Hughes on that issue.
Mrs Allen
I formed the view that as the mother of the plaintiff, Mrs Allen was in a much better position than was Ms Hughes to describe the characteristics of the plaintiff's pre-incident personality and behaviour. In arriving at that view, I have had regard to the likely natural allegiance that a mother might align herself with in speaking about her son. This included the possibility that in this context, a mother in the distressed position that Mrs Allen found herself in, might perhaps present a favourably distorted portrayal of the plaintiff's pre-accident situation.
That said, I am persuaded that Mrs Allen provided an entirely unvarnished account of her son's situation, and I am satisfied that her evidence was both entirely truthful and reliable.
With particular reference to Mrs Allen's observation that the plaintiff did not have depression before the events complained of, I prefer her evidence to the account given by Ms Hughes. Mrs Allen had a much better longer-term vantage point from which to proffer a more accurate "before and after" description of the plaintiff's situation. I accept and prefer Mrs Allen's evidence in that regard where it relevantly differs from the observation, of Ms Hughes.
Inspector East
Inspector East was the senior police officer who was appointed to investigate the complaint the plaintiff made concerning his treatment by police. The investigation had two components, one being the issue of whether criminal charges should be pursued against serving police officers, and the other being an internal police investigation. The latter was concluded by Inspector East after the completion of the prosecution of the officers concerned when the charges laid were dismissed in the Local Court at the conclusion of the prosecution case.
The evidence of Inspector East was largely of an explanatory nature and it was directed at providing explanations of the context and detail of police procedures. This evidence was essentially formal, and included the taking of statements, taking a photograph of the location of the injury to the plaintiff's forehead, and taking charge of the video tapes from the CCTV cameras and copying them for evidence in his investigation. In my view, no substantive issues of controversy arose from his evidence.
Inspector East's statement dated 15 June 2008 was tendered as Exhibit "E". As the officer in charge of Bowral Police Station, on 10 January 2008, he had sent a policing directive to Local Area Command police officers directing them to be more assertive in taking control of the streets where instances of hooliganism, drunkenness, unlawful and offensive behaviour and language was concerned. It was plain from the circumstances of the present case under review, that the arrest of the plaintiff was in accordance with the requirements of that earlier general direction from Inspector East.
Inspector East had been placed in the difficult professional position of being required to investigate a complaint made by the plaintiff against fellow police officers who were under his command and supervision. I formed the impression that he had undertaken that task in a thoroughly professional manner that was beyond criticism.
Whilst in the circumstances of such an investigation, it may be natural that he might have formed an opinion on the merits or otherwise of the complaint made by the plaintiff, and on the standards of conduct of the officers involved, I consider that Inspector East's conduct of the interviews and investigations for which he was responsible, were carried out professionally and were uninfluenced by any such extraneous matters or opinions. I saw no indication that his evidence was anything other than reliable. In my view, no credit issues arose from his testimony.
Senior Constable O'Brien
Senior Constable O'Brien was rostered to carry out general station duties at Bowral Police Station on the night in question. At the time, she was a police officer of some 6 years standing and experience. Her general duties comprised attending to station duties such as answering the telephone, directing call out jobs to patrol cars and the like.
Senior Constable O'Brien took no active part in the processing of the plaintiff whilst he was in custody at the police station, although she occasionally appeared in the CCTV footage as a bystander within the charge room during some of the events. Her factual statement and record of interview obtained by Inspector East, with one exclusion made pursuant to s 135 of the Evidence Act 1995, formed part of the evidence tendered in the proceedings.
By coincidence, Senior Constable O'Brien had attended the same school as the plaintiff, but he was in the year below her. She had no relevant police dealings with him since leaving school: Record of Interview of Senior Constable O'Brien, questions 40 to 42. No questions were asked of her on those matters and nothing turns on this.
The only substantive challenge to the evidence of Senior Constable O'Brien was the proposition put to her to the effect that at the time the plaintiff was released from the police station, it was said that she had suggested to the plaintiff that he should complain about the treatment he had received at the police station on the night in question. She denied that suggestion and I accept her denial. I consider that the plaintiff's recounted belief to the effect that she had encouraged him to lodge a complaint about the events in question was based upon an incorrect impression he had formed of the situation, rather than anything that Senior Constable O'Brien had said to that effect. In my view, based on my acceptance of Senior Constable O'Brien's evidence, there was nothing said to the plaintiff that would have reasonably indicated to him a belief existed on her part, that he had been treated wrongfully or unfairly.
In my view, it is unlikely that Senior Constable O'Brien would have given the plaintiff any indication to justify such an impression, although that may have been his perception because, as a female officer, the plaintiff may have thought that in comparison to the other police officers with whom he had physical contact on the night in question, she may have been more sympathetic or understanding of him.
The DVD evidence confirms that Senior Constable O'Brien had entered and left the charge room of Bowral Police Station at various times when the plaintiff was in the dock in that room. In my view, if in fact there had been untoward events occurring at those times, it was likely that she would have taken a greater interest in them. It seems to me that the events involving the plaintiff in the dock enclosure, and the conduct of the other officers towards a person in custody, were unremarkable from the perspective of proper police procedures concerning the handling of intoxicated persons in the circumstances, and therefore did not arouse her interest during the times she was present. I consider that if the situation were otherwise, Senior Constable O'Brien would have said something to voice any concerns she may have had at that time.
Senior Constable O'Brien's statement dated 7 January 2009, and the record of the interview with her, which was dated 10 June 2008, and which was annexed to that statement, does not support a suggestion to the contrary. I considered her evidence to be of a purely formal nature and of no direct impact on the matters shown on the DVD footage. In my view, the DVD evidence stood to be interpreted and explained by the relevant participants insofar as conversations surrounding the events shown in the DVD were concerned. Senior Constable O'Brien was not a relevant participant in those events, and accordingly, I consider that no relevant credit issues arise from her evidence.
On the issue of the plaintiff's level of intoxication, on the night in question, in an answer to a question put to her in her record of interview, Senior Constable O'Brien recounted her observation that on the evening in question, the plaintiff was very intoxicated, being at the level of 6 or 7 on a scale of 1 to 10. She also said that he was being aggressive and was "generally mouthing off". She took no particular note as to what he was saying, or whether he was abusive to police officers at the time. In her oral evidence, she explained the nominated scale of 1 to 10 in practical terms, at T744.20 - T744.27, as follows:
"...A. Practical terms. All right. A ten, I would put that as somebody, you know, basically unconscious, rolling around in their own vomit. Okay. Whereas one, clearly walking, talking, not a problem. Okay.
Q. So what's a six or a seven?
A. Six or seven, somebody who's, you know. slurring words, not fully co ordinated. Yeah, along those lines, where they're clearly not completely in control of what they're doing."
Senior Constable O'Brien acknowledged that when she saw the plaintiff in the police station he had either blood or a graze on his forehead. She had seen an incident in the dock in which the plaintiff and police officers had been engaged in a wrestle or a tussle. She could not throw light on those events as she was not aware of all the relevant circumstances.
Former Probationary Constable Chate
I formed the impression that former Probationary Constable Chate gave his evidence carefully and honestly, in a straightforward manner, and without embellishment.
Whilst at the time he gave his evidence he was no longer a serving police officer, and now works as a manager of a club, no adverse comment comes from those circumstances. I did consider that as a result of likely allegiances to his former employer and colleagues, it was possible that there could have been a natural subconscious inclination for him to have structured his evidence in such a way as to substantially conform to the evidence of Senior Constable Rigby and Senior Constable Chippindale. However, I discounted that possibility, as I saw no indication of the operation of such a factor in his evidence.
There were some dissimilarities of a minor nature that emerged from the comparison of the evidence of former Probationary Constable Chate with other evidence. However, I did not consider these matters to be of significance in the circumstances.
One such matter was his evidence on Day 8, at T599.30, in which he stated that in connection with the first incident, and consistent with the evidence of Senior Constable Rigby, to the effect that a hotel security guard had approached and stopped the police wagon outside the hotel to seek assistance in evicting the plaintiff from the premises. This was in contrast to other evidence from the police radio log, which indicates that a call had been made to secure the attendance of police at the scene to assist in removing the plaintiff from the hotel. The evidence of former Probationary Constable Chate was to the effect that by the time the police had approached the plaintiff, he was already outside of the hotel. In my view, these matters are not necessarily irreconcilable, as both sets of circumstances could have prevailed at different time reference points. I therefore consider that nothing of substance turns upon such a comparison.
Another such matter arises in connection with the extent of former Probationary Constable Chate's recollections concerning the details of the events of the roadside arrest of the plaintiff before the alleged first incident which involved the police wagon door, and the alleged second incident involving later events as shown on the DVD footage from the charge room at Bowral Police station.
I considered that those matters concerned routine matters of policing that ordinarily would have left no lasting impression on former Probationary Constable Chate and would not have given rise to a need on his part to retain a detailed memory of all aspects of those events, especially given the interval of time between the events in question and when he was first asked to recall those events.
Any minor variations or lack of recall of the respective accounts of events that former Probationary Constable Chate related in that regard were entirely understandable. I did not consider that this adversely reflected upon the credit or reliability of former Probationary Constable Chate as a witness. This is particularly so where the critical events that concerned the second incident were recorded on DVD footage, and absent a consideration of any conversations that took place during that time, the content of that footage can be analysed objectively, so far as the actions shown therein are concerned.
Former Probationary Constable Chate made appropriate concessions when he was cross-examined. I considered him to be a credible and reliable witness on the critical events in question in these proceedings, especially as he fairly identified the limits of his recollection of events.
Senior Constable Chippindale
The assessment of the credibility and reliability of the evidence of Senior Constable Chippindale also involved the components of his evidence that stood to be assessed in its own terms, and that which stood to be assessed in conjunction with what is objectively shown on the DVD footage.
On the night of 22 March 2008, Senior Constable Chippindale had been assigned to the role of acting Sergeant and Custody Manager at Bowral Police Station. In his evidence he fairly acknowledged that his account of his recollection of his actions and of the events of the night in question were based in part on some actual recollections, and upon a statement that he gave on 4 January 2009 when he was interviewed by Inspector East. He also acknowledged that his evidence was also based upon his viewing of DVD footage which had aided his memory of the events. He had viewed that footage at the time he was first interviewed by Inspector East in 2008, and again in the lead up to the hearing of these proceedings.
I considered Senior Constable Chippindale gave his evidence honestly, in a matter of fact and open manner, and without embellishment. I also considered the possibility that his evidence might have been proffered as being tailored to be in conformity with evidence given by other police officers. I discounted that possibility as there were no indications of such a factor at play in his or any other evidence. Instead, I considered that his evidence was given according to the reasonable limits of his recollection.
When weighing the credibility and reliability of the testimony of Senior Constable Chippindale I had regard to concessions he fairly made during cross-examination.
One such concession was where he identified the limits of his recollections. This was evident in his comment to the effect that on the night in question, Senior Constable Rigby appeared to him to have been rattled or upset due to abuse that was said to have been directed at him by the plaintiff from within the dock of the charge room. He identified his evidence to that effect as having been based upon the content of his statement to that effect, dated 6 January 2009: T686.46. In my view, this detail, which was denied by Senior Constable Rigby, confirmed that Senior Constable Chippindale was endeavouring to provide a description of events as he had seen them, irrespective of how this might have reflected on his colleagues. I considered that this feature of his evidence reinforced the view that his evidence was non-partisan and reliable.
The credibility and reliability of the factual testimony of Senior Constable Chippindale was tested in several significant areas.
One such area was whether, in the charge room at the police station, once the altercation between Senior Constable Rigby and the plaintiff had commenced, he had either walked or had run to the aid of Senior Constable Rigby, who was at the time grappling with the plaintiff within the perspex dock area: T697.20 - T697.46.
The point at issue in this regard, was that at paragraph 11 of his statement Exhibit "10", Senior Constable Chippindale had stated, that at that time, he ran to the perspex dock enclosure in order to assist Senior Constable Rigby, whereas in contrast, the DVD footage showed him walking, and not running. He acknowledged this discrepancy but said he was walking with a purpose. I do not consider this evidence to operate to adversely reflect on his credit. It was based on a statement that had been prepared some 10 months after the incident, and is not inconsistent with him having proceeded adroitly and directly to a position that enabled him to go to the aid of Senior Constable Rigby, which he managed to do in a very short interval of time. In that context, the use of the relative description "ran" in his statement, whilst not entirely accurate, was understandable: T722.46.
Another such matter was whether, on the night in question, the plaintiff had actually kicked the perspex dock from the inside before the melee in question occurred: T699.40; T700-T702; T704.29. This was in the context that it was the plaintiff's noisy behaviour which ultimately led to the decision to remove him to the holding cells.
The relevance of this issue is that whereas the statement by Senior Constable Chippindale indicated that the plaintiff had kicked the perspex dock, the DVD footage did not enable a visual confirmation of such an act on his part. In my view, this apparent discrepancy does not raise a significant credit issue because Senior Constable Chippindale was not looking at the plaintiff in the dock enclosure during all of the time he was there: T720.47. As appeared from other evidence, the plaintiff could also have made the noise in question by kicking the stainless steel bench seat located within the dock: T704.42; T705.15. In my view this apparent discrepancy is of little if any overall significance to the issues in the case. Further, as was submitted by Mr Saidi, a close viewing of the DVD footage does not exclude the possibility that the plaintiff had at some stage either touched or hit the perspex dock, or for that matter, the bench seat within the dock enclosure.
In considering the evidence of Senior Constable Chippindale as a whole, I am of the view that he was a truthful witness who gave his evidence in an open, frank, straight-forward and unembellished manner. I am therefore satisfied that Senior Constable Chippindale was an honest and truthful witness whose evidence could be relied upon.
Senior Constable Rigby
Senior Constable Rigby was the senior arresting officer. On behalf of the plaintiff, his evidence was challenged in a number of material respects. Essentially this was on the issue of whether reasonable or excessive force had been used in handling and managing the plaintiff through the arrest and processing stages of the events in question; his account of the contentious verbal interchanges he had with the plaintiff on the night in question, and his account of the events shown on the DVD footage. Each of those matters stand to be evaluated in the context of the issues that call for decision in the proceedings.
On considering the evidence as a whole, in view of those challenges, I have concluded that Senior Constable Rigby was a truthful witness whose evidence should be accepted as reliable on all matters of significance within his evidence. Furthermore, I do not consider that there are any matters arising from his statement (Exhibit "9") or the expanded annotation of that statement (Exhibit "11") which were prepared to assist him in the defence of proceedings brought against him, including these proceedings, which could reasonably be thought to reflect adversely upon his credit.
Necessarily, the challenges that were made to the testimony of Senior Constable Rigby had the potential to reflect upon his honesty and his professionalism as a police officer. His responses to questions on those matters were patient, carefully considered and dignified. He made concessions where it was appropriate for him to do so, and overall I considered that he gave reliable evidence.
Whilst it is true that Senior Constable Rigby resisted a number of contrary suggestions put to him which involved interpretations of the DVD footage of the events that occurred within the charge room at Bowral Police Station, in the context in which they arose, I considered that his responses to questions on those matters were justifiable interpretations of the events in question, and were not unreasonable in the circumstances. This is especially so when it is recognised that in the case of the contentious juxtaposed conversations he had with the plaintiff, and where he explained the actions seen on the DVD footage, he was a well placed participant to give a detailed and sober account of such events.
I considered that Senior Constable Rigby's evidence on those matters was measured and factual. There was one relatively minor matter for comment that arose in his evidence in chief, where he proffered a defensive opinion concerning his actions as shown on the DVD footage. This was in relation to his evidence at T440.37-38, where he described and explained his appearance and the position he was in as was portrayed on the DVD at 23:26:39 as a passive and non-aggressive stance towards the plaintiff.
Whilst his evidence in that regard obviously involved a defensive opinion, in the circumstances, and on the facts as opened and alleged by the plaintiff, that interpretation was entirely understandable. The defensive approach taken by Senior Constable Rigby in that regard was in response to an invitation from the court for him to identify and comment upon a particular segment of the DVD footage. That defensive comment, whilst perhaps in the form of a submission, was one that was nevertheless reasonably open to him in the context in which it arose.
In my view, that matter should not be taken to adversely reflect on Senior Constable Rigby's credit because at that time, he was in a position where his probity as a witness and his professionalism as a police officer were plainly under an already signalled attack, and where, as was ultimately submitted on behalf of the defendant, there was the potential for adverse career consequences for him if the assertions made by the plaintiff were sustained by findings of fact in these proceedings. There is little room for doubt that Senior Constable Rigby knew this when he was giving his evidence. I consider that it was therefore reasonable that he approached his explanations of the DVD in the detailed manner which he did.
An issue arose as to whether, on the night in question, Senior Constable Rigby was "rattled" or upset by some of the plaintiff's comments that were directed at him. Whilst Senior Constable Chippindale had said that Senior Constable Rigby had been "rattled" at that time, Senior Constable Rigby denied that this was so. I accept his denial. There is no evidence on the DVD footage that suggests otherwise.
In my view, nothing emerges from those matters that should be taken to adversely reflect upon the integrity of Senior Constable Rigby, or upon the evidence that he gave. In my review of the evidence of Senior Constable Rigby, I am not persuaded that any good reason has been shown for not accepting and preferring his account of events to the account which was proffered by the plaintiff.
The Plaintiff
In my assessment the plaintiff presented as a person who genuinely carried a sense of grievance about the events that are the subject of this litigation concerning his treatment whilst in police custody. In my view, the medical opinion expressed about him to the effect that he seemed bewildered by what had happened to him in those events is an apt one.
In my view, evidence for the proposition that the plaintiff genuinely felt aggrieved by the events of the night in question comes from his ready acknowledgment that he had been justifiably arrested, charged, convicted and fined in respect of the underlying events. He had no cavil with those events and he had pleaded guilty when charged with the offences that arose from his conduct on that night.
The plaintiff accepted that he was affected by intoxicating liquor in the lead up to his arrest, which justifiably based the directive from Senior Constable Rigby that he move on, and he also acknowledged that his failure to comply with that directive in a timely manner, together with his subsequent use of offensive language in a public place, are not in issue in these proceedings. Nevertheless, in contrast, he has pursued his claim in the earnest belief that he has been wronged during the time he was in police custody.
In weighing the evidence of the plaintiff in order to determine whether or not to accept that evidence on critical matters, I formed the view that the plaintiff gave his evidence in the firm belief that his perception of the events on the night in question were correct. This conclusion means that it is the question of the reliability of the plaintiff's evidence concerning those perceptions, rather than his credibility as a witness, that determines the outcome of these proceedings.
As to matters of detail emerging from the DVD evidence, I find that because of his level of intoxication, the plaintiff was not able to usefully contribute to an understanding of the surrounding events and conversations that occurred at that time. I consider that the plaintiff's belief concerning his treatment on the night in question is a reconstruction that was distorted by a lack of an accurate recall of relevant events and conversations. This was due to his level of intoxication at the time.
On this question, it is significant that the plaintiff's answers to questions on factual matters contained repeated and recurring expressions of uncertainty which indicated to me that his evidence on those factual matters was largely reconstruction based upon matters that he had assumed to have been correct, rather than comprising accurate recollections on his part. In this regard, many of his answers to significant questions were qualified by expressions such as "I'm not sure"; "I'd imagine so"; "I believe so"; "I can't say"; "I can't recall" and "It could have been". In the Appendix to these reasons I have listed the numerous transcript references to those portions of the evidence where he used such expressions.
Rather than analyse those numerous answers quantitatively at this point of my reasons, I shall instead refer to matters as a whole where it is appropriate to do so in connection with my consideration and conclusions on the relevant matters of factual contest on the evidence as these relate to the three alleged incidents which are said to base the plaintiff's claim.
It is sufficient to state at this juncture, that I considered the plaintiff to have been so affected by alcohol to the point of severe intoxication on the night in question (a matter confirmed by the combined effect of the evidence of the plaintiff himself, Mr Brown, Ms Hughes, Leading Senior Constable Rigby, former Probationary Constable Chate, Senior Constable Chippindale and Senior Constable O'Brien) that his recollection of the relevant events was so clouded by such intoxication, that any account he gave of the events in question must be significantly discounted as being unreliable when compared to other more reliable testimony.
I therefore conclude that I could not rely upon the uncorroborated evidence of the plaintiff where it conflicted with the evidence of the police officers who gave evidence. I have already identified the similar cautions that need to be observed in connection with the evidence of Ms Hughes and Mr Brown where their evidence conflicted with that given by Senior Constable Rigby and former Probationary Constable Chate concerning their perceptions of the events that occurred outside the hotel following the arrest of the plaintiff.
In arriving at my assessment of the reliability of the evidence of the plaintiff I have disregarded as irrelevant the evidence that he sought to indirectly approach Senior Constable Rigby to seek a negotiated resolution of the matter.
I have however had regard to one aspect of the plaintiff's evidence at T45.1 - T45.8 and T170.24, which in my view indicated the plaintiff gave a loose account of an aspect of the second alleged incident. In describing the actions of the police officers in the dock enclosure the plaintiff claimed that all his clothes that were not tied down were ripped from him. The DVD evidence clearly shows that statement by the plaintiff to be hyperbolic in nature as after the altercation he was left wearing his trousers and his T-shirt after the potentially dangerous items had been removed from him whilst he was being restrained in the dock enclosure. I considered this component of the plaintiff's evidence to be an overstatement.
Before leaving the subject of the credibility and reliability of the testimony of the plaintiff, I consider it is necessary that I should record that I have specifically excluded from my consideration, and have had no regard to, a number of matters that had the potential to contaminate an assessment of the reliability of the evidence of the plaintiff. Those matters comprised the material that I had excluded from evidence in the proceedings under s 135 of the Evidence Act 1995 on account of the potential prejudice of the content of such material: T737; the matters that formed the basis for issuing the plaintiff with certificates pursuant to s 128 of the Evidence Act 1995: T84 and T87, and the evidence comprising references to the plaintiff's police antecedents and previous convictions.
DVD footage of the alleged second incident
The DVD footage of the events in the charge room and dock enclosure area was recorded from two different camera angles. The first, which is labelled as Chapter 1 on the DVD, was taken from a point opposite the entrance to the perspex dock area from the wall where the plaintiff had earlier been searched. The second, which is labelled as Chapter 2 on the DVD, was taken from a point near or behind the charge counter and was diagonally opposite the perspex dock.
The sequences comprising Chapter 1 are in the stated time frames 23:21:02 to 23:28:09. the sequences comprising Chapter 2 are in the stated time frames 23:16:16 to 23:23:43.
These two time frame references show the same events but are simply recorded from different angles. The different timing calibrations imprinted on the respective sequences can be accounted for by the fact that for some reason, the two cameras in question were set using different commencement times. Nothing turns on that discrepancy.
For convenience, in these reasons, where reference is made to the variously timed sequences shown on the DVD footage, I have used the time signatures shown on the version comprising Chapter 1 on the DVD. I found no need to refer to any frames in Chapter 2, although I have viewed those sequences and have also considered them in detail.
For reasons of privacy, and for compliance with the Surveillance Devices Act 2007, the video images and sequences shown on the DVD footage did not have any audio accompaniment. Whilst it may be possible for an untrained observer of the DVD footage to have gained the impression that the events shown on the DVD footage, occurring as they did in a relatively short time frame, tend to suggest that the plaintiff had been assaulted by police officers in the dock area of the charge room of the Police Station, in my view, in this case, such an approach would involve an unduly simplistic conclusion, which would be unfair in this case, without also first considering the accompanying explanations that are available from the oral evidence of Senior Constable Rigby, Senior Constable Chippindale and former Probationary Constable Chate.
On behalf of the plaintiff, it was submitted that in order to form a concluded view of the events, the DVD footage should simply be viewed as a continuous sequence. On such a viewing, it was submitted that it becomes readily apparent that the claim of alleged assault in the second incident was made out. However, I do not consider a single viewing to be an appropriate course to adopt for the purpose of arriving at fact findings given that in evidence, the DVD footage was put to witnesses with pauses and associated detailed explanatory questioning.
I consider that in this case, the DVD footage, when explained through oral evidence given by Senior Constable Rigby, former Probationary Constable Chate, and Senior Constable Chippindale, takes on an entirely different significance to the characterisation of events that occurred in the charge room at Bowral Police Station compared to that which was portrayed by the plaintiff. This view will be explained in greater detail in connection with my findings concerning the second incident, where the content of the DVD footage is examined in greater detail.
I now turn to my consideration of the issues calling for decision in these proceedings.
Findings concerning the alleged first incident
The police radio log records that at 12.01am on 23 March 2008 police were on the way to attend the Royal Hotel in Bowral in relation to a person refusing to leave. The same radio log records that at 12.15am the police had "one on board" and were proceeding back to Bowral Police Station.
The custody and information sheet relating to the arrest of the plaintiff indicated an arrest time of 12.08am, the commencement of the journey to Bowral Police Station at 12.12am, with arrival there at 12.18am. The offences underlying the arrest were noted as "Offensive Language. Fail to Comply Direction". The arresting officers noted that the plaintiff was severely intoxicated and was behaving aggressively to police.
The plaintiff claims that in the first incident, moments after he was arrested outside the Royal Hotel in Bong Bong St for failing to obey a direction from Senior Constable Rigby that he move on, he was held by the upper arm on each side and walked across the road whilst gripped by either arm by two police officers, to the parked police wagon whereupon his face was then forcibly pushed or rammed against the closed door of that vehicle. He said that he was then forcibly placed inside the cage of the police wagon. The plaintiff stated that when he was pushed against the police wagon door he sustained a laceration to his face on the forehead just above his left eyebrow. He claims this was as a result of an unlawful assault upon him.
The plaintiff's friend, Mr Ashley Brown was a witness to the event. He partly corroborated the plaintiff's account of events following the arrest of the plaintiff and claimed the plaintiff's face had been rammed into the closed door of the wagon. He stated that at the time, when he suggested to the police officers that such handling of the plaintiff was a bit rough, he was met with a reply to the effect that he would be next. A question to be considered is the nature of Mr Brown's opportunity to make such an observation at the time, and the reliability of his recollection of these events, a matter to which I shall return.
Ms Hughes was present in the hotel on the evening in question. She described the plaintiff as clearly having been very drunk and heavily intoxicated by the time he was asked to leave the hotel on the night in question. In her evidence, she expressed surprise that the hotel staff were still serving him at the time when she had arrived at the hotel earlier in the evening.
Ms Hughes described having been approached and asked by a hotel bouncer to speak to the plaintiff about him leaving the hotel towards the end of the evening. She said she had acceded to that request, and said that whilst she was speaking with the plaintiff outside the hotel, she had seen the police arrive and ask the plaintiff to move on, or to face the prospect of being arrested.
There was nothing untoward in the description given by Ms Hughes concerning the conduct of the police in the subsequent events leading to the plaintiff being taken across the road to the police wagon. In contrast, she described the plaintiff's conduct at the time as swearing at the police to the point where she had told him to stop, and to "shut up", because she could, in effect, see trouble brewing with regard to his behaviour.
Ms Hughes described the conduct of the police before they arrested the plaintiff as having been encouraging of the plaintiff to leave the scene, but like her, the police ultimately became impatient with him at what I infer from the circumstances to have been his passive resistance to that request. I draw that inference because he had been employing delaying tactics such as wanting to first finish smoking his cigarette before moving on, consistent with the view of Ms Hughes as to the plaintiff's character of not wanting to be told what to do by others.
It appeared to Ms Hughes that the police officers eventually had enough of the plaintiff's delaying tactics, and the situation outside the hotel then escalated. She was nevertheless careful to make clear that the plaintiff had not been exhibiting any aggression or physical resistance during that period when he was taking his time to respond to the request from the police officers that he move on. From the description given by Ms Hughes, it was clear that after the decision was made by the police officers to arrest the plaintiff, he was then marched across the road to the police wagon. At that time Ms Hughes then returned to her friends who were inside the hotel. She did not see any frisk search conducted on the plaintiff, nor did she see the plaintiff being loaded into the police wagon, and she did not see any alleged assault upon him take place in respect of the alleged first incident.
At the scene of the arrest, Ms Hughes had seen the plaintiff's behaviour as exhibiting an attitude of initial non-compliance with the request by police that he get rid of his cigarette before going to the police wagon. She had also observed an earlier general attitude on the plaintiff's part of non or slow compliance with a request by the police that he move on away from the vicinity of the hotel. She said that after these events, at that point, she then saw him arrested, following which, she went back inside the hotel. The evidence of Ms Hughes was non-contributory to the question of whether or not the plaintiff was assaulted in the first incident as he had claimed.
The two police officers concerned, Senior Constable Rigby and former Probationary Constable Chate, gave a different account of these events compared to the accounts provided by the plaintiff and by Mr Brown.
The police officers claimed that after the plaintiff had been arrested following his failure to obey the direction that he move on from outside the hotel, he had been slow to respond to the request that he get rid of the lighted cigarette he was holding. This resulted in Senior Constable Rigby using what can be fairly described as a degree of minor force to take hold of the plaintiff's hand and to then remove the cigarette from that hand. Senior Constable Rigby explained that this minor use of force was necessary as a standard police procedure to avoid the risk of potential injury to the arresting police if they were to have come into contact with the plaintiff's lighted cigarette. That explanation is entirely reasonable in the circumstances.
Following these events, Senior Constable Rigby and former Probationary Constable Chate said they escorted the plaintiff to the police wagon. They said they did so by securely taking hold of his upper arms on opposite sides, following which they then walked him directly to the police wagon across the road.
I accept the accounts of Senior Constable Rigby and former Probationary Constable Chate concerning the description of the plaintiff's arrest, together with the manner of, and reasons for, walking the plaintiff across the road to the police wagon. I consider that the described force used to remove the plaintiff's hold on his cigarette, and to walk the plaintiff to the police wagon was reasonable, and was commensurate with the need for these police officers to fulfil their duties at the time, and in the face of the plaintiff's low level of defiance or slow compliance at this point.
In this context, it must be borne in mind that these police officers were dealing with a severely intoxicated person who was using offensive language in a public place, and who had already been placed under arrest for those matters, and therefore had to be taken to the police station to be processed.
In my view there can be no legitimate complaint concerning the conduct of Senior Constable Rigby and former Probationary Constable Chate towards the plaintiff to this point. Indeed, the plaintiff accepts that there was no improper handling, improper dealings or any assault of him prior to the incident which he described as having occurred at the back of the police wagon.
The evidence of these two police officers was that the plaintiff had been taken to the rear of the police wagon for a roadside frisk search in accordance with standard police procedure. This was aimed at ensuring, in the first instance, that the plaintiff did not have any sharp or harmful objects in his possession before being placed in the cage at the back of the police wagon for transportation to the police station.
I accept that these officers achieved this objective by leaning the plaintiff's upper body forward and towards the back of the vehicle and ensuring that his legs had been spread apart, into what was described as the off-balance position. This is a procedure aimed at ensuring police safety during the process. This procedure involved the plaintiff's feet being placed apart at a point that was about some 200-300mm further back from the outer skin of the body of the police wagon, just behind the bumper step, to enable him to be frisk searched.
The evidence given on behalf of the defendant was to the effect that at the time the plaintiff was to be frisk searched at the back of the police wagon, he had not remained still, he was making some movements, and he was not fully co-operating with the search procedure.
I infer from the described circumstances, that this attitude on the plaintiff's part was due to his severe level of intoxication. In those circumstances Senior Constable Rigby conceded that it was possible the plaintiff's head could have made some contact with the back of the police wagon and that this was a possible cause of the forehead graze or laceration of which the plaintiff had later complained. Senior Constable Rigby conceded this possibility at the outset when he had prepared the Facts Sheet on the night in question, in respect of the charges laid against the plaintiff concerning his arrest.
Although Senior Constable Rigby fairly made that concession in preparing the Facts Sheet, the possible contact of the plaintiff's head with the back of the police wagon was not the only possible cause for the plaintiff's minor forehead injury.
The two police officers denied that they had used unreasonable force in the course of these events to place the plaintiff into the frisk search position behind the police wagon. They also denied that the plaintiff was thrown into the police wagon before the door of the wagon was closed.
On the journey to the police station, a noise was heard to come from within the back of the caged section of the police wagon. It was suggested that the vehicle could have been driven over a bump in the roadway during that journey. In the course of that evidence it was postulated that the plaintiff could have fallen onto the floor of the caged section of the vehicle, where he was found at the conclusion of the journey.
In any analysis of the above events, it must be acknowledged that both Mr Brown and the plaintiff had each consumed a considerable amount of alcohol on that afternoon and evening. They gave differing accounts of their movements between drinking at the Golf Club in the afternoon and arriving at the Royal Hotel to continue their drinking in the evening. In these circumstances, it is not surprising that their recollections have been impaired by those events.
In the case of the plaintiff, when his evidence as to his alcohol consumption is analysed, he said that on the afternoon and evening in question, he would have consumed between 17-19 drinks: T29-38/T30.36.
In the case of Mr Brown, his evidence on the subject of his own (and the plaintiff's) alcohol consumption was vague. He could not recall what he had been drinking or in what quantity, when he was at the Golf Club: T281. He recalled having had a number of drinks with the plaintiff there: T282.9. Similarly, he was uncertain as to what he was drinking, and in what quantity, when he was at the Royal Hotel in Bowral: T282.20. On any reasonable view, the plaintiff and Mr Brown had consumed a considerable amount of alcohol during the course of the day and on the evening in question.
I consider that the described level of alcohol consumption would obviously have impaired the accuracy of the respective recollections of both the plaintiff and of Mr Brown concerning their perceptions of the detail of the events on the night in question, and therefore, the accuracy of any subsequent recounting of those events in their evidence.
The factual contest on the likely events which comprised the first incident essentially involves an assessment of which of the two bodies of opposing evidence should be preferred over the other.
In undertaking the analysis in respect of the first alleged incident, I have determined that I should generally prefer the evidence of Senior Constable Rigby and former Probationary Constable Chate to the evidence respectively given by the plaintiff and by Mr Brown as to the circumstances of the plaintiff being taken to and placed in the cage of the police wagon.
My reason for taking that view is that I consider that both the plaintiff and Mr Brown must be taken to have had imperfect and inaccurate perceptions and recollections of the events and the sequential details of the events that occurred at the time the plaintiff was arrested and was placed inside the police wagon outside the Royal Hotel.
I consider that this is so because of the effects of the large quantity of alcohol they had each consumed beforehand. I consider that to a significant extent, the recollections of both the plaintiff and Mr Brown were considerably clouded by that fact. In my view, this has resulted in them each recounting an incomplete and unreliable account of the events of the alleged first incident insofar as it is alleged that the plaintiff was unlawfully assaulted by the arresting police officers by having his face allegedly forcibly pushed or rammed into contact with the closed door at the rear of the police wagon.
I accept that the plaintiff sustained an injury to his forehead over his left eyebrow on the night in question. Given the plaintiff's recollection of having his head come into contact with the back of the police wagon, taken together with the fact of the injury to the plaintiff's forehead and the note made by Senior Constable Rigby on the night in question. I think it is very likely that the forehead injury was sustained during the time the plaintiff was at the back of the police wagon.
The photograph of the plaintiff's forehead injury that comprised Exhibit "D", was taken by Inspector East in mid-2008, some months after the first incident. The photograph is not probative of the circumstances in which that injury was said to have been sustained. It is plain that Inspector East simply took that photograph as comprising the best evidence of injury then available as part of the formal process of investigating the plaintiff's complaint of an alleged assault having been committed upon him by police officers.
The DVD shows that the plaintiff was then held in that subdued position by Senior Constables Chippindale and Rigby whilst former Probationary Constable Chate proceeded to remove the plaintiff's shoes, belt and socks: 23:25:40 to 23:26.17.
The plaintiff complained that during these latter events when he was being held in the subdued position, he was kneed in the back by one of the police officers present. Such an action is not readily apparent on the DVD and I am not satisfied that this in fact occurred. Assuming for the purpose of analysis that such an event did occur, given that the plaintiff was putting up a considerable and vigorous struggle in the dock enclosure, it would not necessarily have been an unreasonable use of force to use a knee to pin the plaintiff into a subdued position in such circumstances, commensurate with his resistance at the time.
When the task of removing items of clothing from the plaintiff that had the potential to cause self-harm was complete, senior Constables Chippindale and Rigby then released their hold on the plaintiff and they left the dock enclosure, closing the door behind them, leaving the obviously protesting plaintiff in the dock enclosure: 23:26:46.
Conclusions concerning the second alleged incident
I have concluded that no unreasonable force was used against the plaintiff at any relevant time when he was handled by any of the police officers involved in the incidents complained of by the plaintiff.
The force used by Senior Constable Rigby to place the plaintiff in the search position against the wall in the charge room was in my view mild and commensurate with the task required of him at the time in handling a severely intoxicated person.
Similarly, the force used by Senior Constable Rigby in encouraging the plaintiff to enter the perspex dock enclosure was reasonable, necessary, and plainly not excessive to the circumstances.
With regard to the force variously used by Senior Constable Rigby, then by Senior Constable Chippindale and former Probationary Constable Chate in the melee in the dock enclosure, it was reasonable and was appropriately reactive to the requirement that the plaintiff be subdued as he was the aggressor in the circumstances. In my view, in order to defend themselves, these police officers used force that was both reasonable and commensurate to the plaintiff's aggressive behaviour. In that regard, the plaintiff's resistance to the police officers whilst in the dock was unlawful. As a consequence, the actions of the police officers in restraining him does not attract any civil liability in the defendant: s 52(1)(a) of the Civil Liability Act 2002.
For the reasons I have outlined, I conclude that in respect of the second alleged incident, the plaintiff has failed to establish that he was unlawfully assaulted by the respective police officers against whom he had made allegations to that effect.
Findings concerning the third alleged incident
The claim by the plaintiff is that following the events of the second alleged incident, which is the subject of the consideration outlined in the preceding paragraphs, a police officer whom he was unable to identify, escorted him from the dock area within the charge room of the police station to a holding cell, and in the process of doing so, rammed him into a wall so hard that he had to turn his head in order to protect himself, and in these events his upper body came into contact with the wall. The plaintiff claims this was an unlawful assault upon him.
I consider that these allegations were based upon the plaintiff's own unclear and incomplete recollection of the events. I take this view consistent with my earlier findings concerning the plaintiff's severe state of intoxication at that time and the effect this state had on his ability to accurately perceive and recall the events that occurred around him at that time.
In his evidence, Senior Constable Chippindale identified himself as the police officer who had transferred the plaintiff to the holding cell which was accessed from the charge room through an immediately adjacent corridor at Bowral Police Station. He emphatically denied that the plaintiff was assaulted by being pushed or rammed into a wall during his transfer from the dock enclosure in the charge room to the holding cells.
The corridor and holding cell area in question were fitted with CCTV cameras similar to those which were located in the charge room, and which recorded the events of the second incident. Unfortunately, the recorded images from those cameras were not preserved for evidence. This is because of the belated timing of the plaintiff's complaint of having been allegedly assaulted whilst being taken to the holding cell. Unfortunately it was no longer possible to view the CCTV footage of the transfer of the plaintiff to the holding cells. The tape had not been preserved and had been over-recorded in accordance with standard practice where no prior notice had been given indicating a need to copy and preserve the recording of the relevant footage for evidence, as had occurred in connection with the footage concerning the second incident. This was explained through the evidence of Inspector East and Senior Constable Chippindale. The plaintiff's complaint of the third alleged incident only arose at the hearing at the Local Court on 6 February 2009. As no prior notice had been given of such a complaint, Inspector East had no reason to obtain and preserve that additional CCTV footage.
On behalf of the defendant it was submitted that the plaintiff's account of having been assaulted in the third alleged incident was unreliable and should not be accepted
In my view the defendant's submission concerning the third incident should be accepted. It is plain that the transfer of the plaintiff from the dock enclosure to the holding cell occurred whilst the plaintiff was still severely and significantly intoxicated from his earlier consumption of alcohol over an extended period of time from the previous day and evening. In those circumstances, given the resultant unreliability of the plaintiff's account of these events, I am not persuaded that his perceptions and claimed recollections should be accepted and preferred over the evidence of Senior Constable Chippindale with regard to this further claimed incident.
I accept the evidence of Senior Constable Chippindale that the transfer of the plaintiff to the holding cell occurred without incident and without any assault having been occasioned to the plaintiff in the course of that transfer. Whilst the plaintiff's evidence, to the effect that he was assaulted in the third alleged incident, was undoubtedly based on his honestly held perception that this was the case, I consider that his perception to that effect must be seen as being unreliable.
I am reinforced in this view by the absence of an earlier complaint from the plaintiff concerning an alleged assault upon him whilst being transferred to the holding cell, whereas, in this context, he had made complaints concerning the first and second alleged incidents not long after he was released from custody. In my view, the plaintiff's complaint of having been assaulted in the alleged third incident arose due to an assumed and inaccurate reconstruction of events on his part. I do not accept that he was assaulted in such an incident. In this regard I prefer the evidence of Senior Constable Chippindale as being more likely to be the correct account concerning the events of the plaintiff's transfer from the charging room dock enclosure to the holding cells.
Damages
Since I have found that the plaintiff was not unlawfully assaulted as he has claimed, ordinarily, an assessment of an entitlement to damages does not relevantly arise for consideration. Nevertheless, in this case, as I have formed views on the damages issues, I propose to observe the convention which requires that in order to allow for the possibility that on appeal it may be found that I have erred in arriving at my findings rejecting the plaintiff's claims, I should briefly state the conclusions I have reached concerning the plaintiff's damages claim, had I found that the plaintiff was entitled to an award of damages on the basis of an acceptance of his allegations.
In the paragraphs that follow, I set out my assessment of the damages that would have been awardable on that alternative basis, assuming a finding that the claimed assaults had in fact occurred.
As opened, the plaintiff's claim for damages, as set out in MFI "3", was in the total amount of $1,070,468. In final submissions, it was conceded that some adjustments were required to that sum.
General damages
The plaintiff claimed compensatory general damages in the amount of $80,000, unrestricted by the considerations required by s 16 of the Civil Liability Act 2002 by reason of the operation of s 3B(1)(a) of that Act.
On an acceptance of the proposition that it was the assaults (rather than the plaintiff's perception of the assaults as I have found to be the case) that operated as a trigger for the plaintiff's significant mental health symptoms comprising depression spectrum and anxiety symptoms which overpowered the plaintiff's underlying resilience, despite his history of drinking, and which has caused the plaintiff to fail to make a proper psychological adaptation to the stressor (being the alleged assaults), this would ordinarily call for an award of moderately significant general damages.
The plaintiff continues to be affected by a sense of bewilderment as to his perception of the assaults. It was argued that this was either the last event in the causal chain which operated to create in him a state of inability to cope with life, or as a result of a gradual chipping away of his reserves (the perceived assaults being the significant determining events) leading to the same result. Either way, the plaintiff's existence has changed from being a person who could cope with his life, in terms of work, and some form of social life, albeit involving drinking alcohol to excess on weekends, to being a person his mother has aptly described as being an adult child who needs looking after with regard to his day-to-day needs, compared to a more independent existence beforehand.
Of the two formulations respectively identified by Associate Professor Phillips and Dr Lewin as summarised in the preceding paragraph, I prefer the formulation identified by Associate Professor Phillips, namely the development of an adjustment disorder with mixed anxiety and depressed mood. This finding is also based on an acceptance of the evidence of Mrs Allen as to the different levels at which the plaintiff functioned before and after the alleged incidents.
I do not accept that the plaintiff has failed to mitigate his losses. His subjective circumstances and psychological impairments do not support the view that he has unreasonably failed to seek treatment. I draw this conclusion from the jointly expressed view of the consultant psychiatrists to the effect that the plaintiff is not a psychologically oriented man.
I accept that the events of 22 and 23 March 2008 triggered the plaintiff's downward spiral of inability to cope with work and the essential self-care demands of day-to-day life.
Had that psychological process been due to the assaults as claimed, I accept as appropriate, the submission on behalf of the plaintiff that general damages should be awarded in the amount of $80,000.
Interest on past general damages
Although no submissions were made claiming interest, in accordance with accepted principles, interest on past common law general damages would ordinarily be awarded at 2 per cent for past general damages. In this regard, I would apportion half of such damages to the past, namely 4.41 years until the commencement of the hearing. Accordingly, 2 per cent of $40,000 over 4.41 years yields an interest calculation in the amount of $3528.
Past out-of-pocket expenses
The plaintiff has had medical and allied consultations and has been prescribed antidepressant medication in addition to his pre-existing need for Panadeine Forte for his back pain. The parties have agreed that the plaintiff's past out-of-pocket expenses should be assessed in the amount of $1601.40.
Future out-of-pocket expenses
The plaintiff has submitted a claim for future out-of-pocket expenses in the sum of $21,742.75. The elements that comprised this sum included a projected amount of $6381.55 for future general practitioner consultations and $15,361.20 for future medication costs. This component of the plaintiff's claim was advanced on the basis that those sums were medically indicated. It was also pointed out that in the past, the plaintiff has received treatment from his general practitioner, and he has attended some counselling sessions with a mental health nurse practitioner.
In contrast, on behalf of the defendant, it was submitted that no allowance should be made for future treatment expenses because of the limited treatment the plaintiff had undertaken in the past.
At the age of 40, I consider that it would be unreasonable not to include in a damages assessment, an amount to address his undoubted need for future psychological treatment and the support of a general practitioner. That said, in this case I consider that it would be artificial to seek to calculate a projection of a weekly amount to address this need.
I consider that an assessment of the plaintiff's damages should include an amount for future treatment expenses. The assumption must be that there will be a compliance by the plaintiff with his duty to mitigate, including by engaging with recommended treatment modalities.
I would propose an award of a buffer sum as an allowance for future treatment in the amount of $15,000.
Past domestic assistance
The plaintiff has been living predominantly with his mother for the previous 18 months. In that setting, as a consequence of his debilitated and depressed psychological state, in association with his now excessive daily intake of alcohol, he does very little in the way of domestic tasks in the nature of self-care, and his mother attends to these matters. Personal hygiene issues aside, she described the task of looking after the plaintiff these days as being akin to looking after an adult child. In that regard, the plaintiff seems to spend most of his time sleeping and drinking and not doing very much around the house in the way of domestic activities.
In surveying the range of evidence on this issue, including on the one hand, Mrs Allen's view that she probably spends about 3 or 4 hours per day carrying out tasks for the plaintiff such as washing, cooking, cleaning, shopping and in general, and the opinion of Associate Professor Phillips on the other, suggesting that the plaintiff has a current need for domestic assistance of the order of 6 hours per week, I consider that a conservative assessment of 5 hours per week should be allowed for the past 18 months at the submitted rate of $41 per hour as being reasonable for this claimed head of damage, ($41 x 5 x 52 x 1.5). This yields an assessment of $15,990.
Future domestic assistance
In view of the poor psychiatric prognosis for the plaintiff's condition as expressed by Associate Professor Phillips, it was submitted on behalf of the plaintiff that there should be an award for future domestic assistance in the amount of $64,881.58.
This amount was derived by the projection of the value of future care in two stages. The first stage involved the projection of 6 hours per week at $41.80 per hour for one year, to yield $13, 041.60, and a further 10 years of such care projected at 3 hours per week at the same rate of $41.80 per hour at 3 per cent (x 451.8) and then deferred for one year (x 0.915) to yield $51,839.98, identifying a combined total amount of $64,881.58.
In my view the evidence does not suggest that such a precise mathematical approach to assessment is required in this case. Furthermore, some discount should be applied to allow for the deleterious effects of the plaintiff's pre-existing drinking patterns and his pre-existing low back problems. Accordingly, I would have awarded a discounted and rounded buffer amount for future domestic care, assessed in a lump sum amount of $40,000.
Past economic loss
On behalf of the plaintiff, based upon the content of Exhibit "J", which comprised a letter from the plaintiff's former employer, it was submitted that the plaintiff had a relevant earning capacity of between $900 and $1300 per week gross, including GST, as a sub-contractor. On this basis, the plaintiff submitted that in the last pre-incident year, namely that ending on 30 June 2007, the plaintiff had a demonstrated earning capacity of $394 per week net, according to copies of his submitted income tax returns: Exhibit "L". On the evidence in this case, I consider that approach to be a reasonable and conservative estimate of the plaintiff's net weekly earning capacity at the time of the events in question.
Based upon the foregoing analysis, on behalf of the plaintiff, it was submitted that his claim for past loss of earnings should be allowed at $394 per week net over 225.5 weeks to the hearing, yielding a claimed past loss of $88,847.
In my view, taking a discounted approach to that sum, on account of the plaintiff's drinking and his pre-existing debilitating back condition, I would have assessed the plaintiff's entitlement to damages for past economic loss, including a past superannuation component and interest, in the net rounded down sum of $50,000.
Future economic loss
On behalf of the plaintiff, it was submitted that there should be an award of damages for future loss of earning capacity assessed in the sum of $383,325.40. That sum comprised a projection of an amount of $394 net per week at 3 per cent over 26.5 years less 25 per cent on account of potential adverse vicissitudes, including the possibility that the suggested treatment recommended for the plaintiff may have a positive effect.
In my view the approach submitted on behalf of the plaintiff, whilst logical and founded upon a reasonably modest base rate, does not acknowledge a sufficient discount to reflect the plaintiff's pre-existing alcohol abuse problems and the debilitating effects of his pre-existing back injury. In my view, a much lower buffer sum would be indicated to incorporate such discounting factors.
If the plaintiff's claims of assault had been made out I would have awarded damages for future loss of earning capacity, including for superannuation, in the discounted buffer amount of $200,000.
Claimed aggravated compensatory damages
The plaintiff claimed aggravated compensatory damages in the amount of $20,000. I have not made any findings to the effect that the plaintiff was unlawfully mishandled by the police in the events in question. Accordingly, aggravated damages do not appropriately arise for consideration.
Claimed exemplary damages
The plaintiff claimed exemplary damages in the amount of $50,000. I have not made any findings to the effect that the plaintiff was unlawfully mishandled by the police in the events in question. Accordingly, exemplary damages do not appropriately arise for consideration.
Summary of damages assessment
The total of the notional assessments of damages outlined in the preceding paragraphs amounts to $406,119.40.
Disposition
As I have found that the plaintiff was not assaulted as claimed, the defendant is entitled to a judgment in its favour on the claims made by the plaintiff.
Costs
Since the defendant has succeeded on all issues calling for decision in the proceedings, it follows that the ordinary costs rule should apply and the plaintiff should be required to pay the defendant's costs.
Orders
I make the following orders:
Verdict and judgment for the defendant;
(2) The plaintiff is to pay the defendant's costs of the proceedings on the ordinary basis unless otherwise ordered;
(3) The exhibits may be returned;
(4) Liberty to apply on 7 days notice if further orders are required;
**********
APPENDIX
Item
Answer
Transcript References
1.
"I'm not sure"
36.8, 38.32, 42.12, 43.29, 45.18, 45.37, 45.48, 46.16. 47.31, 55.8, 58.48, 65.14, 65.29, 67.12, 70.2, 70.28, 70.37, 70.33, 75.16, 75.19, 75.29, 75.37, 80.21, 86.31, 88.35, 90.47, 91.6, 91.21, 93.14, 102.25, 103.14, 103.23, 103.27, 103.41, 104.24, 104.33, 104.40, 105.6, 105.16, 106.20, 107.16, 114.8, 119.48, 120.2, 121.13, 122.10, 123.22, 123.30, 124.4, 124.21, 124.46, 124.50, 126.7, 126.20, 126.37, 126.49, 127.13, 127.21, 128.12, 129.31, 130.7, 132.38, 134.39, 135.36, 136.6, 139.24, 139.34, 145.40, 147.28, 147.35, 147.43, 148.14, 148.34, 150.31, 151.34, 151.47, 152.20, 153.24, 155.14, 155.50, 156.3, 157.6, 158.32, 159.50, 161.3, 161.17, 162.2, 162.45, 165.12, 166.38, 166.45, 169.13, 169.35, 170.33, 171.7, 172.25, 172.33, 175.42, 175.50, 176.26, 181.1, 187.1, 187.17, 187.20, 188.26, 188.30, 189.21, 189.34, 189.39, 190.5, 190.10, 190.21, 194.21, 194.25, 194.42, 196.14, 196.32, 196.37, 197.12, 197.16, 198.26, 198.29, 198.39, 198.42, 199.46, 200.8, 200.38, 201.9, 208.15, 212.28, 213.30, 213.34, 215.49, 216.3, 216.22, 217.32, 218.29, 221.5, 222.25, 226.12, 226.21, 228.24, 230.12, 230.14
2.
"I'd imagine so"
42.19, 104.50, 213.34
3.
"I believe so"
39.3, 39.6, 41.15, 46.23, 67.3, 76.4, 79.17, 85.47, 90.41, 93.46, 94.3, 95.28, 96.47, 100.5, 100.20, 101.10, 101.28, 101.36, 101.39, 103.14, 107.43, 109.25, 110.40, 116.5, 116.36, 117.44, 119.21, 120.50, 121.3, 121.10, 130.42, 131.30, 142.18, 146.43, 146.46, 148.10, 148.24, 151.7, 152.47, 155.2, 159.10, 160.31, 160.44, 165.6, 166.5, 167.13, 167.23, 171.19, 172.7, 172.10, 180.21, 181.20, 187.14, 187.32, 187.49, 188.18, 188.23, 190.42, 192.17, 193.47, 194.42, 195.48, 197.34, 199.15, 200.47, 209.31, 215.46, 221.13
4.
"I can't say"
84.11, 166.24, 183.31, 191.36
5.
"I can't recall"
26.9, 32.25, 38.32, 38.33, 40.25, 94.31, 157.27, 157.46, 161.21, 173.26, 200.26, 217.35, 227.24, 228.3
Decision last updated: 22 August 2012
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