Binsaris, Webster, Austral & O'Shea v Northern Territory of Australia - [2023] NTSC 79

CITATION:Binsaris, Webster, Austral & O’Shea v Northern Territory of Australia [2023] NTSC 79
PARTIES:BINSARIS, Josiah

AND:
WEBSTER, Keiran
AND:
AUSTRAL, Ethan
AND:
O’SHEA, Leroy
v
NORTHERN TERRITORY OF AUSTRALIA

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO’s:SC 26 of 2015 (21513348); SC 19 of 2015 (21510204); SC 15 of 2015 (21508785); SC 14 of 2015 (21508784)
DELIVERED:  1 September 2023
HEARING DATES:  7 July 2020 following remittal from the High Court of Australia
JUDGMENT OF:  Blokland J
CATCHWORDS:
ASSESSMENT OF DAMAGES – ASSAULT and BATTERY – physical and
psychological effects of the administration of CS gas in a Youth Detention
Centre – assessment of general damages and aggravated damages – where
plaintiffs are bystanders to the deployment of the CS gas – where some
plaintiffs involved at the commencement of a disturbance – adjustment made
in assessment on that account.
ASSESSMENT OF DAMAGES – ASSAULT and BATTERY by deployment
of CS gas – use of CS gas in a youth detention centre held to be unlawful by
the High Court of Australia – remittal hearing – whether finding of
unlawfulness affects assessment of damages – whether unlawfulness
necessitates award of exemplary damages – held, exemplary damages
awarded to ensure defendant does not allow unlawful means to be used in
detention centres again – Court to express disapproval in strong terms.

Prisons (Correctional Services) Act 2013 (NT)
Racial Discrimination Act 1975 (Cth)
Weapons Control Act 2001 (NT) s 6, 12
Youth Justice Act 2005 s 151

Binsaris & Ors v Northern Territory of Australia [2020] HCA 22; Bulsey v State of Queensland [2015] QCA 187; Cruse v State of Victoria (2019) 59 VR 241; JB & Ors v Northern Territory of Australia [2019] NTCA 1; Kunoth-Monks v Healey [2013] NTSC 74; Lamb v Contogno (1987) 164 CLR 1; LO & Ors v Northern Territory of Australia [2017] NTSC 22; Majindi v Northern Territory [2012] NTSC 25; NSW v Ibett (2006) 229 CLR 638; Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; White v South Australia [2010] SASC 95; Whitfield v De Lauret & Co Ltd (1920) 29 CLR 71; Wooton v State of Queensland (No 5) [2016] FCA 1457; XI Petroleum (NSW) Pty Ltd v Caltex Oil Australia Pty Ltd [1985] HCA 12, referred to.
Final Report of the Royal Commission and Board of Inquiry into the
Protection and Detention of Children in the Northern Territory Vol 2A.
JD Mayne and H McGregor, Mayne & McGregor on Damages (Sweet and
Maxwell, Limited, 12^th ed, 1961).
Harold Lunz, Assessment of damages for personal injury and death,
(LexisNexis 4^th ed).

REPRESENTATION:
Counsel:
Appellants:K Foley SC
Respondent:  T Moses
Solicitors:
Appellants:North Australian Aboriginal Justice Agency
Respondent:  Solicitor for the Northern Territory
Judgment category classification:    B
Judgment ID Number:  BLO2315
Number of pages:  61

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Binsaris, Webster, Austral & O’Shea v Northern Territory
of Australia [2023] NTSC 79

No’s. SC 26 of 2015 (21513348); SC 19 of 2015 (21510204);
SC 15 of 2015 (21508785); SC 14 of 2015 (21508784)

BETWEEN:
JOSIAH BINSARIS
AND:
KEIRAN WEBSTER
AND:
ETHAN AUSTRAL
AND:
LEROY O’SHEA
Plaintiffs

AND:

NORTHERN TERRITORY
OF AUSTRALIA
Respondent

CORAM: BLOKLAND J
REASONS FOR JUDGMENT
(Delivered 1 September 2023)
Introduction

The plaintiffs Josiah Binsaris, Keiran Webster, Ethan Austral and Leroy O’Shea were all detainees within the Behaviour Management Unit (the BMU) at the Don Dale Youth Detention Centre (the Centre) in the Northern Territory on 21 August 2014. On that date, another detainee, Jake Roper, escaped from his cell, damaged property and caused a serious disturbance. Early in the disturbance, the plaintiffs Josiah Binsaris and Ethan Austral joined in the disturbance to the extent of damaging property within their cell, but remained within the cell.
As part of the response to that disturbance, those in charge of the Centre decided to employ CS gas with a view to temporarily incapacitating Jake Roper so that he could be taken back into safe custody. CS gas is a form of tear gas that disables those who breathe it by inducing a burning sensation and tearing of the eyes, and intense irritation of the nose and throat, causing coughing and difficulty breathing.
While the plaintiffs were not the target of the deployment of the CS gas, they were nevertheless exposed to it during that deployment. The deployment consisted of an initial instance of three bursts of less than one second each into the BMU, followed by another burst of about two seconds. When this did not render Jake Roper compliant, there was a second deployment consisting of about six short bursts of the gas into the BMU. This resulted in Jake Roper becoming compliant and Centre staff were able to enter the BMU and secure him.
Once Jake Roper was secured, the cells in the BMU were unlocked and the plaintiffs were handcuffed behind their backs and taken to a basketball court where they were hosed down to remove any residue of the gas.
Each plaintiff commenced a proceeding in this Court claiming damages for assaults and batteries said to have been committed during the events of 21 August 2014 and in the following days. One of the claims advanced by the plaintiffs was for damages for battery arising from the use of the CS gas in the BMU. At first instance, the plaintiffs succeeded on some of their claims, but the primary Judge entered judgment for the defendant in the claims based on exposure to the CS gas. The trial judge ruled that the deployment of the CS gas was lawful.[1]
The Court of Appeal dismissed an appeal by the plaintiffs against the dismissal of their claims based on the use of CS gas.[2]
The plaintiffs appealed to the High Court against the decision of the Court of Appeal dismissing their appeal against the primary judge’s dismissal of their claims for damages arising out of the use of CS gas.[3] The High Court upheld the appeals, set aside the relevant orders made by the Court of Appeal and the primary judge, and remitted the plaintiffs’ claims to this Court before another judge to assess damages. It now falls to me to assess damages, in the light of the judgement and ruling by the High Court.
The plaintiffs’ pleaded cases
The cases for each plaintiff regarding the use of CS gas were pleaded in largely identical terms. Relevantly, each plaintiff pleaded:
19.On or about 9:13pm, corrections staff deployed CS Gas, also known as “Tear Gas” in the Behavioural Management Unit.
20.Commissioner Middlebrook, the Commissioner for Correctional Services, authorised the deployment of CS Gas alleged in paragraph 19 above.
21.After deploying the CS Gas the plaintiff and the other juvenile detainees were removed from the Behavioural Management Unit.
22.The plaintiff and the other juvenile detainees were thereafter laid on the ground in the adjacent courtyard and sprayed with a high pressure firehose to decontaminate them from the CS Gas residue.
23.The defendant by [marshalling guards in riot uniforms and equipment, and bringing in attack dogs as well as][4] administering CS Gas intentionally or recklessly caused the plaintiff to apprehend an imminent fear of personal safety and further an imminent fear of direct harm such that in law the conduct of the correctional officers constituted an assault wherein the defendant via its servants or agents, the correction officers of Don Dale and/or Berrimah, is vicariously liable to the plaintiff for the tort of assault.
24.In addition, the administering of CS Gas or Tear Gas, was intended to cause harm, or was reckless to the harm it caused, wherein at law such conduct constitutes a battery perpetrated by the correctional offices of Don Dale and Berrimah for whom the defendant is vicariously liable to the plaintiff in damages.
The plaintiffs pleaded a claim for general damages for assault and battery based upon distress, humiliation and the immediate physical effects of the administration of CS gas including stinging eyes, stinging skin, shortness of breath and nausea.
Each plaintiff also claimed aggravated damages based on the following propositions:
a)the defendant in the exercise of discipline during detention was only permitted to use reasonable force, which did not include the administering of CS gas in the present circumstances;
b)the internal management procedures at Don Dale only permitted force to be used where absolutely necessary, and only permitted a minimum of force proportionate to the situation to be applied;
c)contrary to its statutory obligation regarding the use of force found in the Youth Justice Act 2005 (NT) (the YJA) and its internal procedures, the defendant deployed the use of force that was prohibited either by statute or by internal procedures and deployed CS gas against the plaintiff without lawful justification or excuse; and
d)this constituted acts of aggravation wherein the plaintiffs are entitled to additional compensatory damages by way of aggravated damages.
Each plaintiff also claimed exemplary damages, initially based upon the following propositions:
a)in the circumstances, the use of force by administering CS gas was grossly excessive and high handed;
b) the use of the CS gas occurred in a confined space;
c)the use of CS gas was unnecessary in circumstances where all of the “use of force” procedures required by the defendant’s guidelines to be deployed by the defendant had not been exhausted and the defendant had not complied with the requirements for the use of force set out in the YJA;
d)the use of force by deploying CS gas was excessive, disproportionate to any risk and unwarranted in the circumstances; such that, the court should award exemplary damages to deter and punish the defendant.
In general terms and relevant to the issues that remain to be determined, the defendant initially pleaded that general damages and any aggravated damages should not be awarded, however upon remittal it was submitted moderate damages be awarded, but there should be no award for exemplary damages.
The plaintiffs’ submissions on damages
The plaintiffs’ submissions on damages came in three tranches. Firstly, written submissions dated 14 October 2016 which were filed for trial. Secondly, oral submissions were made to the primary Judge on 17 October 2016. Thirdly, further written submissions were filed on 13 July 2020 after the matters were remitted from the High Court. Those submissions were elaborated on in the hearing on 27 July 2020. The first two tranches addressed all of the alleged causes of action pleaded by the plaintiffs, while the final tranche was directed solely to the use of the CS gas. The oral submissions made on 17 October 2016 and on 27 July 2020 add to the earlier written submissions. These reasons will focus on the written submissions, elaborating where appropriate on the oral submission of 27 July 2020.
Submissions of 14 October 2016
In the written submissions filed 14 October 2016, the plaintiffs made the following general submissions before making submissions specific to each plaintiff:
a)As to general damages “any and all damage is recoverable, if it results from the wrongful act, whether it is foreseeable or not”.[5] The award of such damages is discretionary.
b)Aggravated damages, in contrast to exemplary damages, are “compensatory in nature, being awarded for injury to the plaintiff’s feelings caused by insult, humiliation and the like”.[6]
c)Exemplary damages are awarded in order to punish a defendant for “conscious wrongdoing in contumelious disregard of another’s rights”.[7] Such damages may be awarded even if there is no malice on the part of the defendant.[8] In addition to punishing a defendant, an award of exemplary damages may be made “to demonstrate the courts disapproval of the defendant’s conduct and to provide general and specific deterrence”.[9]
d)There are no previously decided cases which provide a direct comparison to the present, particularly when regard is given to the use of CS gas and the age of the plaintiffs. Some guidance may be found in the decisions of Bulsey v State of Queensland.[10]
The circumstances in Bulsey were that the plaintiffs’ home was forcibly entered by 6 members of the police ‘special emergency response team’ in the early hours of the morning. The male plaintiff was taken from his bed, handcuffed and dragged into the street. He was then held in custody, questioned, charged and remanded in custody. Ultimately, the charges against him were dropped. The female plaintiff, was faced with a team of armed police entering her home and shouting orders at her. Both plaintiffs sued the State of Queensland for damages for trespass to the person. The plaintiffs were unsuccessful at first instance, but succeeded on appeal. The Court of Appeal found that the male plaintiff had proven torts of assault, battery and false imprisonment, while the female plaintiff had proven the torts of false imprisonment and assault. The Court of Appeal awarded $165,000 in damages to the male plaintiff and $70,000 to the female plaintiff. Exemplary damages were excluded by statute, so that these sums comprised only general and aggravated damages.
In Majindi, the plaintiff was 31 years old and was awarded damages for assault and battery, unlawful arrest and false imprisonment. He had been falsely imprisoned for 5 hours and 40 minutes, sustained a blow to his head with a baton, was handcuffed, unlawfully searched twice and struck a second time. He was awarded a total of $105,000.00 which included exemplary damages of $40,000.00.
Kunoth-Monks was a defamation case in which the plaintiff was awarded $125,000.00 general damages on the basis of hurt feelings and damage to her reputation. The Court did not award aggravated damages and exemplary damages were precluded by statute. The present plaintiffs submitted that this award should be borne in mind when assessing damages for the tort of battery.
I will now address the submissions made regarding the individual plaintiffs primarily directed to general and aggravated damages.
I will deal with the submissions relevant to exemplary damages later in these reasons.
Leroy O’Shea
In an affidavit affirmed on 21 February 2016,[11] Leroy O’Shea deposed to the following matters relating to the use of CS gas on 21 August 2014 and the surrounding circumstances:
[33]My best recollection is that the day Jake Roper got out of his cell was the same day that we were told by the caseworkers that we were going to stay in the BMU on the management plans. It was just being renewed. This meant we would be in the BMU for another three weeks.
[45]Keiran and I would not doing any of these things. Keiran and I didn’t destroy any property at all. Not a single thing came off the wall of our cell. We didn’t make any weapons. We didn’t call out threats to the guards. We didn’t throw anything at the guards or in their direction. We didn’t fail to comply with directions. We weren’t doing anything wrong. We were just in our cell playing cards and watching.
[47]Approximately four of five guards in riot gear came to the BMU area. I could see them through the window in the door opposite ourselves and I could hear that there was a few of them. They were dressed in shields, gas masks and covered up head to toe. The guards in riot gear were full-grown men. They looked like the biggest guards from the adult prison.
[51]About two minutes after Jake said he gave up, I was standing on my bed and I saw the guards spray tear gas into the BMU.
[52]I did not hear the guards give any warning before they used the tear gas.
[53]Keiran and I immediately ran to the back of our cell and covered ourselves with blankets. I didn’t see them spray the tear gas more than once but afterwards when we were taken onto the basketball courts, I looked to the bottles sitting on the basketball courts.
[54]The tear gas affected me badly and from the way I saw Keiran acting, it seemed to affect him badly as well. My throat was burning, I was choking, my eyes were stinging and my nose was running. Keiran looked like he was throwing up. The guards knew I had asthma they have provided me with Ventolin in the past. I found it really hard to breathe.
[55]After they sprayed the tear gas, I felt complete fear. I thought I was going to die. The worst thing was not knowing how long it was going to last and how long we were going to have to sit in there and burn.
[56]Some Berrimah officers and Don Dale guards came and opened our cell. Keiran and I walked out of our cell.
[57]There was a mattress outside my cell which was covered in tear gas and foam from when Jake let off the fire extinguisher. They grabbed me and laid me on the top of the mattress. They did this in a way that my face was pressed against the mattress near where the phone was and it made my face burn. They put handcuffs on me behind my back and walked me to the basketball courts outside.
[58]All of the other BMU detainees and I were made to lie face down on our stomachs on the basketball court for about two minutes. I was handcuffed and I could see that the other detainees were as well. The guards grabbed the firehose and started spraying all of us.
[59]The guards were rough with me and from what I saw it looked like they were rough with the other detainees as well.
[60]Keiran and I were treated the same as, or worse, than the other detainees even though we were not involved. I feel that I was treated the worst because I was the oldest. This felt very unfair because I was not involved in what happened.
As above, it was submitted that Leroy O’Shea was subjected to the effects of CS gas in the range between 4 ½ and six minutes before he was removed from his cell. It was further submitted in these proceedings that an award in the vicinity of $40,000 should be made for general damages for the use of CS gas with respect to all plaintiffs, noting there are some differences between them to some extent dependent on their behaviour during the disturbance.
It was further submitted that an award of aggravated damages should be made to Leroy O’Shea as he, in common with the other plaintiffs, was not the reason why the CS gas was deployed. In the joint reasons of Gordon and Edelman,[12] their Honours stated: “There were no findings in the courts below, nor was it contended in this Court, that when the CS gas was used the appellant or Jake Roper were committing an offence that justified its use. Nor was there any finding that the appellants, as distinct from Jake Roper, were participating in a breach of the peace at the time of the use of the gas”.
Justice Gageler said lawful justification may be established in the face of a common-law action in battery if such an action had been brought by Jake Roper. Exposure of the other detainees to the CS gas could not be said to have been unintentional. His Honour found that exposure to the plaintiffs was understood by the Director and the Immediate Action Team to be the inevitable consequence of the decision to deploy the CS gas for the purpose of incapacitating Jake Roper and was carefully weighed by the Director in making that decision.[13] Gageler J reasoned the plaintiffs were in the position of bystanders who suffered collateral harm and were entitled to damages at common law to compensate for the harm for the simple reason that the use of force has interfered with their bodily integrity.[14] His Honour joined in the orders of the majority to allow the appeal and remit the matter, notwithstanding his view that use of the CS gas was lawful.
It was submitted that given Leroy O’Shea’s position as a bystander, or a non-involved person, there should be an award of aggravated damages. This would be in keeping with the reasoning of the High Court. Given his and the other plaintiffs’ status as bystanders, it was an aggravating feature that none of the officers took the opportunity to warn them or reassure them of what was about to happen; that they would not be exposed for long and that they would be removed. As this did not happen, it was submitted Leroy O’Shea’s fears were not subdued when they could have been.

Further, it was submitted the plaintiffs were treated in a rough manner which can be seen from the available footage. They were handcuffed behind the back and made to lay face down on the basketball court. They were then hosed down. Leroy O’Shea was not involved in the incident at all, however was treated the same way as Jake Roper on the basketball court. It was submitted Leroy O’Shea and the other plaintiffs were not properly decontaminated or given proper first-aid in accordance with proper procedures, bearing in mind how dangerous the CS gas is. None of the plaintiffs were given timely medical attention, Leroy O’Shea recalled seeing a nurse for around two minutes. This did not occur until 10pm and it appears from the nurse’s records it was thought all the plaintiffs had been capsicum sprayed.[15] The times noted on the Medical Records indicate very brief consultations.
It was submitted this aggravated the physical harm as it prolonged the effects of the gas and aggravated emotional harm as there was no warning about what would occur. Treatment was not given immediately but rather Leroy O’Shea was handcuffed and placed on his stomach and hosed down. Despite the High Court’s decision in this matter, there has not been any acknowledgement by the defendant that what took place in relation to the CS gas was unlawful, that it contravened the Weapons Control Act 2001 (NT), nor has there been an apology.
It was submitted that an award in the vicinity of $40,000.00 for aggravated damages was appropriate for Leroy O’Shea, there being some acknowledgement that not all plaintiffs are in the same situation as Leroy O’Shea.
Keiran Webster
In an affidavit affirmed on 26 February 2016,[16] concerning the use of CS gas on 21 August 2014 and the lead up to it Keiran Webster stated:
[29]From 4 August onwards, the other BMU detainees and I asked the guards and the case workers many times about how long we were going to be in the BMU. I remember either the guards or the case workers saying they were going to review our behaviour and see how that goes. I understood them to be saying if we were good then we would get out of the BMU. But since being detained in the BMU, we were all being good and still no one that worked at Don Dale could ever tell us when we were going to get out of the BMU. I felt really frustrated by this.
[30]I remember one of the other detainees in the BMU said something like, ‘fuck,em, let’s just run amuk’. Everyone in the BMU except Leroy and I started kicking the doors and yelling things like, ‘fuck you’se, you are fucking us around’.
[34]Then Jake just got out of his cell. He started going off. What I mean when I say that he was ‘going off’ is that he blocked the cameras in the area outside the cells and went up to everyone’s cell to see if they would open. He said ‘open your hatches’. Jake tried to open our door. You could hear by the way Jake tried to open it that it had been left open. Then he left open the hatch, Leroy and I said we didn’t want to get involved. We closed our hatch and told Jake to go away.
[36]At some point, the guards from the adult prison at Berrimah came through the hallway next to the admissions area. I didn’t actually see them at first but I heard the other detainees in the BMU yelling something like ‘the turtle squad is here’. Turtle squad is something we call the riot guards because they look like ninja turtles.
[37]At the time, I was really scared. On many occasions prior to this incident, I have seen the guards get rough with people and I have heard stories about that as well. Based on what I had seen and heard in the past, I felt like the guards could do whatever they wanted with no apparent consequences. They could be mean and they could hurt you. They actually told me that the next day after they had taken us to Berrimah. The guards said something like, ‘we can do whatever we like’. There are no cameras back here. If you smart with us, we can smash you’. The guards were big men as well.
[46]That’s when the guards threw something into the BMU and it felt like it exploded. I thought it was a bomb but I now know it was tear gas. I heard everyone react. Leroy and I jumped down on the floor, ran towards the back of our cell and put the sheet and mattress over us.
[47]I was affected immediately. I couldn’t breathe properly. It felt like an anxiety attack. I couldn’t open my eyes because it hurt too much. I got an instant headache as soon as I got a whiff of it. I never had a headache like that before. It was extremely painful.
[48]It was so hard to breathe that Leroy and I thought we were going to die. At first we were kind of joking about dying and then we started to seriously believe it because it was just so hard to breathe. I thought that I was eventually going to stop breathing. We started shaking each other’s hands and saying our goodbyes.
[50]It was a bit of a blur from the time they sprayed the tear gas until we were on the basketball courts. I remember being on the basketball courts getting our faces washed. The guards were squirting me and the other detainees with water. As far as I can remember, the guards were using a water bottle to wash us and then they hosed us down with a firehose.
…..
It was submitted Keiran Webster was also exposed to the CS gas for the same period as Leroy O’Shea before he was removed from his cell. It was a submitted that an award of $40,000 for general damages, for the exposure to the CS gas would be appropriate.
A similar submission regarding aggravated damages to that made on behalf of Leroy O’Shea was made regarding Keiran Webster, namely an award in the vicinity of $40,000.
Ethan Austral
In an affidavit affirmed on 21 February 2016, regarding the use of CS gas on 21 August 2014 and the lead up to it Ethan Austral stated:
[24] I was never told how long I was going to be kept in the BMU.
[25]I complained about being in the BMU. I wanted to move out of there. The guards said ‘it’s up to the bosses’.
[26]No senior staff member of Don Dale ever came down to the BMU to talk to me or any of the other detainees in the BMU. The only people who talked to us were our case workers.
[29]On 21 August 2014, I was still being detained in the BMU area.
[31]Josiah and I blocked the camera in our cell. I did this because I wanted the guards to come down so I could talk to them about getting out of the BMU.
[51]Jake climbed up near the showers. There were guards on the other side. Jake said through the broken window, ‘tell them I give up’. One of the guards said, ‘No, this is your punishment’, and they pushed him back with the broom. I could hear the conversation between Jake and the guards but I could only see Jake and the broom.
[52]Then all the guards were standing at the door near the admissions area and they sprayed the hall with gas.
[53] The guards did not give a warning before they sprayed the gas.
[54]They could have spoken to us through the intercom or they could have yelled at us through the admin or basketball area. We would have heard that.
[55]The spray made me feel sick. I felt pain on my face and it was hurting my eyes. I had my shirt over my mouth so it didn’t get in my mouth because it tasted yuck.
Ethan Austral relied on similar submissions that were made on behalf of Leroy O’Shea. It was accepted that Ethan Austral had some involvement in the disturbance at an earlier time, however it was submitted he had done nothing which warranted the use of the CS gas. Nevertheless, he was handcuffed behind the back and laid on his stomach on the ground before being taken to Berrimah. On his account in his second affidavit he said his throat was still burning when in the van to be taken to Berrimah.
Josiah Binsaris
Josiah Binsaris did not give evidence before the primary Judge. It was submitted that inferences about the physical effects of the CS gas on Josiah Binsaris could be drawn on the basis of training material placed before the primary judge concerning the effects of CS gas, the evidence of the other plaintiffs as to how the CS gas affected them physically, and on the basis of handycam footage of the detainees, including Josiah Binsaris, on the basketball court after the tear-gassing had occurred. This footage was played on 27 July 2020 and was before the primary Judge. It was submitted that there was no reason to believe that Josiah Binsaris would have suffered less physical pain than Ethan Austral, given that they were in the same cell and exposed for the same length of time.
It was submitted that an award of $40,000 for general damages was appropriate.
Further, as with the other plaintiffs, it was submitted that an award of aggravated damages should be made for the “harsh manner in which Mr Binsaris was treated when he was removed from the BMU”. It was further submitted that Josiah Binsaris, while not an entirely innocent bystander, had done nothing to warrant the use of CS gas.
Submissions of 13 July 2020
These submissions were made after the High Court remitted the proceedings to this Court for further assessment of damages. The plaintiffs submitted that a consequence of the reasons expressed by a majority of the Judges of the High Court on whether the deployment of the CS gas had been unlawful was that the deployment constituted an offence under the Weapons Control Act 2001 (NT). This in turn is relevant to an award of exemplary damages.
In that regard, in a joint judgment Kiefel CJ and Keane J accepted that a CS fogger, such as was used to deploy the CS gas on 21 August 2014, is a prohibited weapon under the Weapons Control Act. Section 6(e) of that Act provides that a person must not possess, use or carry a prohibited weapon except if permitted to do so by an exemption under s 12. Section 12(2)(a) relevantly provides that s 6 does not apply to a prescribed person acting in the course of their duties as a prescribed person in respect of a prohibited weapon that has been supplied to them by their employer for the purpose of the performance of their duties as a prescribed person. The officers who deployed the CS gas were prison officers who were not authorised to use CS gas in a youth detention centre. A prison officer only has power to use the weapon in a prison. ‘The provisions of the Weapons Control Act and the Prisons Act did not authorise the use of a CS fogger in the detention centre. Its deployment was unlawful’.[17]
As above, in a separate judgment, Gordon and Edelman JJ reached the same conclusion. Additionally, their Honours’ said ‘There were no findings in the Court’s below, nor was it contended in this Court, that when the CS gas was used the appellants or Jake Roper were committing an offence which justified its use. Nor was there a finding that the appellants, as distinct from Jake Roper, were participating in a breach of the peace at the time of the use of the CS gas.’[18] While Gaegler J did not find the use of the gas unlawful, his Honour noted the plaintiffs were locked in their cells when the gas was deployed and were bystanders. Bystanders are entitled to damages.[19]
The plaintiffs submitted that findings of the Royal Commission into the Protection and Detention of Children in the Northern Territory (the Royal Commission) are relevant to the plaintiffs’ claims for exemplary damages in two ways. Firstly, the Royal Commission found that CS gas had been used on 21 August 2014 on children in circumstances where there were no guidelines, or legislative or policy safeguards, specific to youth detention centres regulating its use or any research results available as to the lethal contamination time in children.[20]
The difficulty with relying on the findings of the Royal Commission is that unlike the case here, the Royal Commission was not bound by the rules of evidence, nor bound by pleadings when making its findings. Although it is tempting to simply adopt the work and findings of the Royal Commission, the Court here must be satisfied to draw conclusions from more limited material which is confined to this particular case, based in large part on the facts before and found by the primary Judge.
The plaintiffs contend that these circumstances warrant a higher award of exemplary damages as it should have been clear to those who made the decision to deploy the CS gas, for whose actions the defendant is vicariously liable, that its use was unlawful.
The plaintiffs submitted that there should have been up to date standard procedures making it clear that the use of CS gas within Don Dale was not lawful.
Finally, the plaintiffs referred to two decisions which were delivered after their submissions of 14 October 2016. In Wooton v State of Queensland (No 5)[21] where the plaintiff was awarded $95,000 in damages under s 9 of the Racial Discrimination Act 1975 (Cth) for the arrest, tasering , handcuffing and shackling of the plaintiff arising out of a large-scale police operation during the 2004 protests on Palm Island. Of that sum, $65,000 was for physical shock and temporary pain, and humiliation and anxiety. The Court had no power to award exemplary damages.
The second case to which the plaintiffs referred was Cruse v State of Victoria.[22] That case concerned a claim in assault and battery against police. In the course of a counter terrorism investigation, several members of Victoria Police raided the plaintiff’s family home and arrested the plaintiff, causing injuries to his head and upper body. The plaintiff was subsequently diagnosed with post-traumatic stress disorder, and major depression with anxiety. The plaintiff was awarded $400,000 in damages for assault and battery including $200,000 in general damages, $80,000 in aggravated damages and $100,000 in exemplary damages. The plaintiffs accepted that this case is not relevant to assessing general damages in their cases because the award in Cruse was based upon personal injury. The plaintiffs submitted, however, that the awards of aggravated and exemplary damages are relevant.
The defendant’s submissions on damages
The defendant’s submissions on damages also came in three tranches. Firstly, written submissions dated 14 October 2016 were filed. Secondly, oral submissions were made to the primary Judge on 17 and 18 October 2016. Thirdly, further written submissions were filed on 20 July 2020 after the matters were remitted from the High Court. The first two tranches addressed all of the alleged causes of action pleaded by the plaintiffs, while the final tranche was directed solely to the use of the CS gas. I will focus on the written submissions, elaborating where appropriate, on oral submission made in October 2016 and 27 July 2020.
Submissions of 14 October 2016
The defendant submitted that each of the plaintiffs have extensive histories of criminal offending, including offences of dishonesty. It was submitted accordingly that the Court should apply a high degree of scrutiny to their evidence. In particular, it was submitted that the demeanour of the plaintiff, Ethan Austral, when giving evidence should lead to the conclusion that he is an unreliable witness.
With regard to the plaintiffs’ claims regarding the use of CS gas, it was submitted that it is significant in assessing damages that the actions taken by or on behalf of the defendant were directed to controlling detainee Jake Roper. None of the plaintiffs were improperly targeted in the use of the CS gas, and they were unfortunate casualties of conduct directed towards addressing the behaviour of Jake Roper.
The defendant submitted that if the plaintiffs were entitled to an award of damages, a sum of $20,000 in general damages should be awarded. It was submitted that Josiah Binsaris should be awarded less than the other plaintiffs as there was no evidence that he sustained any hurt, humiliation fear or embarrassment. The defendant noted that none of the plaintiffs testified that they had suffered any long-term health or emotional effects to justify an award of aggravated damages. Given the evidence that those present at the incident believed that the use of the CS gas was the only reasonable course available, it was submitted that an award of exemplary damages was inappropriate.
The defendant referred to the evidence of James Sizeland and Kenneth Middlebrook regarding the circumstances surrounding the use of CS gas on 21 August 2014. I will take this opportunity to refer to their evidence. Mr Sizeland was the Deputy Superintendent of Don Dale at the time and Mr Middlebrook was the Commissioner of Correctional Services for the Northern Territory. Mr Sizeland swore an affidavit on 4 September 2016 in which he deposed to the following matters as background to the events of 21 August 2014:
a)the plaintiffs Mr Austral and Mr Binsaris both had histories of assaulting and making threats to staff of the Don Dale facility and to other detainees;
b)Mr Austral had a history of assaulting staff and other detainees;
c)Mr Binsaris had a history of escaping custody and undermining the safety and security of the detention centre;
d)Mr Roper had previously been involved in an incident where he kicked and punched a detainee, requiring the victim to be taken to hospital;
e)all of the plaintiffs had escaped Don Dale on 2 August 2014. Mr Austral, Mr O’Shea and Mr Webster were recaptured on 4 August 2014 and Mr Binsaris was recaptured on 6 August 2014; and
f)upon their return to Don Dale the plaintiffs were placed in the BMU, which Mr Sizeland considered to be the only location within Don Dale that could safely and effectively accommodate those detainees without a high likelihood of escape.
At about 5:05pm on the evening of 21 August 2014, after he had completed his shift, Mr Sizeland received a telephone report that the detainees accommodated in the BMU, including each of the plaintiffs, were misbehaving and throwing rocks or concrete pieces at staff entering the BMU. Mr Sizeland directed the staff at Don Dale to closely monitor the situation and give the detainees time to calm down. Mr Sizeland received a further call at about 7:45pm informing him that the detainees had not settled down and were becoming increasingly aggressive and violent. Mr Sizeland then attended Don Dale. On the way to Don Dale, Mr Sizeland received a further call advising him that Jake Roper had broken out of his accommodation unit, was armed and attempting to stab staff and to break out of the building. On 21 August 2014 Jake Roper was housed in unit 3 within the BMU, Josiah Binsaris and Ethan Austral were in unit 2 and Leroy O’Shea and Keiran Webster were in unit 4.
On arrival at Don Dale Mr Sizeland had difficulty seeing what was happening within the BMU because the windows on the BMU entry door had been broken. He was not able to see much through CCTV cameras. There was a considerable amount of broken glass on the floor near the BMU entry, which Mr Sizeland considered to be a hazard to staff and detainees. It could also be used as a weapon. While trying to remove the glass, Jake Roper threatened to stab Mr Sizeland. Attempts to calm Jake Roper down were unsuccessful and he continued to yell abuse, throw objects around the BMU and hit doors with a fire extinguisher.
At about 8:34pm a Response Team arrived at Don Dale. This team consisted of three prison officers. They were briefed by Mr Sizeland that Jake Roper had escaped from his cell, was damaging furniture and windows within the BMU, and was threatening staff. Mr Sizeland also told the Response Team that the detainees in unit 2 had made a hole in the steel mesh at the front of their cell and were able to throw things out of the cell. At the direction of Mr Sizeland the Response Team forced entry into the BMU using shields, and were able to remove the glass from the floor. While this was occurring, Jake Roper discharged a dry powder fire extinguisher at the Response Team.

Shortly after the glass was removed, Mr Sizeland was informed that a Youth Justice Officer had been injured when Jake Roper threw a metal pole through a window from the BMU into a store room. Due to some of the objects being thrown by him, a Youth Justice Officer’s arm was cut. A further attempt to gain entry to the BMU was unsuccessful as the external door to the BMU had been damaged.
In his affidavit, Mr Sizeland said:
61. At this point I made the following assessment of the situation:
(1)Detainee Roper’s behaviour had not de-escalated and had in fact escalated with the presence of Correctional Officers.
(2)Verbalisation and negotiation had been attempted. YJO Kellaher in particular had spent a long time attempting to engage with detainees Roper. During that time detainee Roper had consistently shown that he did not want to and would not speak calmly and reasonably to staff. I formed the view that verbalisation had been totally ineffective.
(3)Low level physical force could not be applied because access to the BMU could not be achieved safely by the Prison Officers due to detainee Roper’s behaviour and the risk of injury from the detainees in cell 2.
(4)If the Officers went in with their shields and batons then it was likely that:
(a)detainee Roper or the Prison Officers would have been injured as detainees Roper had access to improvised weapons and the detainees in cell 2 had the ability to throw things from the hole created in the mesh of the cell door; and
(b)detainee Roper would be seriously injured if the Prison officers were forced to strike with their batons, if detainee Roper elected not to surrender.
(5)A powder fire extinguisher had been deployed by detainee Roper in the confined space of the BMU, affecting visibility and posing a risk to the health of the other detainees.
Mr Sizeland considered the options available and determined that the least use of force to deal with the emergency situation that could be applied in the circumstances to prevent injury and harm to detainees and staff was the deployment of CS gas. Mr Sizeland was trained in the use of CS gas and had been exposed to it many times. He described the effects as uncomfortable and, in large doses, temporarily incapacitating. His understanding was that CS gas did not have long-term effects. In these circumstances, he thought the deployment of CS gas was authorised. Arrangements were put in place to decontaminate detainees from the CS gas as soon as they were removed from the BMU.
Mr Middlebrook testified that he attended Don Dale after being notified of the incident involving Jake Roper on the evening of 21 August 2014. He was informed that Jake Roper had smashed the windows into the admissions area, had smashed the storeroom windows and had glass available to him. He was told he was throwing the glass at officers when they attempted to talk to him and had discharged a dry powder fire extinguisher. There was also a concern that detainees had damaged light fittings and light switches which could lead to a loss of lighting in the BMU. Mr Middlebrook concluded that the situation needed to be resolved quickly. He testified that other options, including the use of a police dog or forced entry to the BMU using shields and batons, were considered and rejected due to the likelihood of injury to either Jake Roper or to Corrections and prison staff. Mr Middlebrook believed that the use of CS gas was the only viable option.
The defendant referred to the decision in White v South Australia,[23] in which a number of protesters were unlawfully arrested, falsely imprisoned and subject to various batteries. One of the protesters was an 11-year-old girl. She was in a group of protesters who were sprayed by police with capsicum spray. She was affected by the gas, and was in fear and suffered pain and discomfort as a result of the use of the gas. She was awarded $10,000 in general damages, $5000 in aggravated damages and $3000 in exemplary damages.
Another adult offender was tackled to the ground by police and her face was pushed into the dirt and her hair was pulled. She was restrained and sprayed with capsicum spray at close range in the eyes and nose. She was unlawfully arrested and placed in a vehicle. She was verbally abused by police and insulted. Personal items were broken or damaged as a result of police conduct. She was imprisoned in a shipping container for three hours and exposed to fumes and smoke from nearby welding. She was falsely imprisoned for a total period of seven hours. As a consequence, she suffered depressed mood and anxiety for two years. She was awarded $40,000 in general damages, $25,000 aggravated damages and $15,000 in exemplary damages.
Submissions of 20 July 2020
The defendant submitted that the sole task of this Court on remittal is to determine the quantum of compensation payable by the defendant to each plaintiff for the unlawful use of CS gas in the BMU on 21 August 2014. All other issues of fact had been decided. The defendant submitted that this Court’s fact-finding role is limited to any additional facts not decided by the primary Judge which are necessary to determine quantum. Care should be taken to ensure that any additional findings are not inconsistent with those of the primary Judge.
I take this opportunity to observe that additional findings may be required as the primary Judge was not dealing with the matter in a context of the use of a weapon which was unlawful in the circumstances of a Detention Centre. The primary Judge was dealing with the CS gas on the basis its use was lawful.
The defendant submitted that the general basis upon which the use of CS gas was found to be unlawful is that neither the Youth Justice Act nor the Prisons (Correctional Services) Act 2013 (NT) authorised or permitted the use of CS gas in circumstances where the fogger used to disperse the gas was otherwise a prohibited weapon under the Weapons Control Act. The defendant submitted that findings of fact made by the Royal Commission are irrelevant, and that liability for damages is exclusively governed by the facts and pleadings at trial.
The defendant submitted that the uncontroversial facts established that the use of CS gas, while unlawful, was nevertheless the safest course of action available to decision-makers whose only motivation was to bring events to an end as safely as possible for all concerned.
It was pointed out that an issue at trial was whether the use of CS gas was objectively reasonable and necessary. There had been no challenge to the finding that it was,[24] or to any of the preliminary findings leading to that ultimate conclusion, including:
(a)that decision-makers were concerned about the possibility of an escape in circumstances where each of the plaintiffs and Mr Roper had escaped less than 3 weeks earlier and had informed staff that they would do so again;
(b)decision-makers were acutely concerned about agitation and the inciting of other detainees[25] leading to a conclusion that the situation needed to be resolved quickly;
(c)attempts at negotiation or communication with Mr Roper had been exhausted; and
(d)staff had considered alternatives and determine that the use of CS gas was the safest course of action available for everyone concerned.
Those who made the decision to deploy CS gas did so in a pressured environment. The primary Judge and the Judges of the Court of Appeal, not faced with the same pressure, reached the conclusion that the use of CS gas was lawful. This demonstrates, the defendant submitted, that the unlawfulness of the use of CS gas was not obvious and supported the submission that its use was not the result of deliberate disobedience to the law.
The defendant also noted that the CS gas was deployed in aerosol form which allows the operator control over delivery. The plaintiffs were removed from the BMU as quickly as could safely be managed and decontaminated. The plaintiffs engaged in coughing, spitting, swearing and laughing when they were decontaminated. It was submitted that in the video footage the plaintiffs did not appear particularly distressed or concerned about the events which had occurred.
The defendant accepted that damages should reflect the unquestionably unpleasant experience of indirect exposure to the CS gas, but there is no basis to conclude that the effect was more than transitory. Consistent with the findings of the trial judge as to credit, the video footage, the medical evidence and the disavowal of any personal injury claim by the plaintiffs, damages should not be assessed on the basis of the more extreme allegations raised by some of the plaintiffs.
Josiah Binsaris did not give evidence and relied on inferences as to the manner in which the CS gas affected him. The defendant submitted that the contributions of Ethan Austral and Josiah Binsaris to the events of 21 August 2014 should be reflected in the award of damages to them. The defendant also submitted that there was no evidence of humiliation arising from the plaintiffs being affected by the CS gas.
The defendants submitted the general damages for the transitory physical effects of indirect exposure to the CS gas should be modest. An award for exemplary damages is not appropriate for substantially the reasons given by the trial judge. In that regard, the trial judge said, at [392]-[393]:
[392]Exemplary damages are available where there has been a conscious wrongdoing in contumelious disregard of another’s rights. For an award of exemplary damages to be appropriate, the defendant’s conduct must merit punishment. It must have been knowingly malicious, violent, cruel, insolent, high-handed or an abuse of power.
[393]I do not believe it is appropriate to award exemplary damages in this case. In my view, the conduct of the officers in taking what has been admitted to be unreasonable measures in placing the detainees in spit masks and shackles was not knowingly malicious, violent, cruel, insolent, high-handed or an abuse of power or indeed knowingly wrongful at all. I do not believe that the officers concerned acted in conscious and contumelious disregard of the plaintiffs’ rights…
While the above extract from the judgment of the trial judge is directed towards different conduct than that which is currently before this Court, the defendant submitted that the same findings and reasoning should be adopted with respect to the deployment of CS gas. The defendant submitted that the Youth Justice Act requires the superintendent to maintain order, discipline and safe custody of a detention centre. Under pressure and faced with the need to bring the situation to an end quickly and safely, and with no (subsequently established) lawful means to do so, the Commissioner authorised and directed the use of CS gas, reasonably believing that doing so was the safest way of resolving the situation.
On the facts found by the primary Judge, the defendant submitted, it could not be concluded that the use of CS gas was grossly excessive and high-handed or unnecessary in the circumstances.
The defendant submitted that an award of aggravated damages is not appropriate in respect of either Ethan Austral or Josiah Binsaris. Both engaged in criminal conduct, being criminal damage and aggravated assault. The defendant submitted that their conduct was part of the reason why staff did not believe that they could safely enter the BMU to restrain Jake Roper.
The defendant further submitted that the cases referred to by the plaintiffs in their submissions of 13 July 2020 were not comparable to the present case.
Finally, the defendants submitted that the status of the plaintiffs as Indigenous is not of itself a basis to award exemplary damages.
Further consideration
Although the facts found by the primary Judge are not challenged and are relied on here, there are additional considerations relevant to fact finding in the sense that there is now a significant question about how the unlawfulness of the use of the CS gas should affect the assessment of damages. To that extent, some of the relevant issues which fall for consideration here, were not part of the reasoning of the primary Judge because they were not required to be.
Many of the claims before the primary Judge were not related to the matter now under consideration. As pointed out by counsel for the defendant, some of the other claims are closely related to the deployment of the CS gas. An example is the claim at [23] of Leroy O’Shea’s Second Further Amended Statement of Claim which includes a sequence of allegations ‘marshalling guards in riot uniforms and equipment, and bringing in attack dogs as well as administering CS gas intentionally or recklessly’. Those parts of the claim which failed before the primary Judge, save for the use of CS gas remain undisturbed. So much is clear, however it is appreciated caution is required. The defendant also pointed out the findings about why the CS gas was used and that those findings remain intact including why it was regarded the safest option available. While that may be so, it seems on remittal that the option of the CS gas, how or why it was considered and then used by the officers informs the findings. While respecting the primary Judge’s findings, the assessment here must be undertaken on the understanding that the ‘option’ of the use of CS gas was unlawful. The findings of the primary Judge must now be understood in that context.
That the High Court found the use of CS Gas to be unlawful in a youth detention context must inform the award of damages in a substantial way. There would be no point in remitting the matter for assessment of damages before another Judge if this was simply a technical matter. This was not an adult facility. This was a facility to detain children and youths, albeit in an institution which on the evidence before the primary Judge was “really beyond its life fit for purpose”.[26] That being the case, notwithstanding some of the plaintiffs were difficult and hard to control youths, as might be expected in a youth detention centre, the deployment of an unlawful weapon which affected other youths who were in their cells must have some impact on the award of damages.
It is the case as the respondent submitted, the trial Court and the Court of Appeal ruled that the use of the CS gas was not in breach of the Weapons Control Act. While in those circumstances lack of knowledge of the unlawfulness of the use of the CS gas mitigates the position of the officers involved to some degree the same benevolence should not be extended to the Northern Territory. A review of the material before the primary Judge does not indicate that the lawfulness or otherwise of the CS gas had ever been seriously reviewed at an institutional level or that the individuals concerned had turned their mind to the issue. This includes senior officers. There was no indication that advice about the lawfulness or otherwise of such a weapon was ever sought by any relevant Department, the Detention Centre itself or any individual at a time before the occurrence of any critical event such as the one which developed here. There is no evidence that the Youth Justice Officers, including senior officers knew they had positive lawful authority to use the CS gas in a youth detention setting.
It was pointed out in submissions that neither Mr Sizeland, nor Mr Middlebrook, according to their evidence, turned their minds to the question of lawfulness. Mr Sizeland recommended to Mr Middlebrook that the CS gas be used but that “The training did not deal with the use of CS gas on young people in youth detention”.[27] He was not aware that the CS gas fogger was a prohibited weapon or that resources were available with reference to use of CS gas in youth detention centres. While Mr Sizeland denied that he knew it was not authorised, there was no evidence he or Mr Middlebrook turned their mind to the question of the lawfulness of the use of the CS gas fogger.[28] Needless to say, senior officers should know, or should find out whether the use of particular weapons are lawful or not in the setting concerned, in particular of a youth detention centre.
I do not underestimate the challenges which the Youth Justice Officers faced on this occasion. I proceed on the basis of the primary Judge’s description with respect to how the events unfolded, noting much of disturbance was created by Jake Roper, with some involvement at an earlier time by the plaintiff’s Josiah Binsaris and Ethan Austral. Keiran Webster and Leroy O’Shea were not involved in the relevant disturbance. They were playing cards in their cells. The following is extracted from the primary Judge’s findings:
Events on the night of 21 August 2014
The broad outline of what occurred at Don Dale on 21 August 2014 is not in dispute. The BMU was occupied by six detainees. The first cell was vacant. KW and LO were in the second cell, Jake Roper was in the third cell, EA and JB were in the fourth cell, and another detainee (not involved in this proceeding) was in the final cell.
Some time on 21 August 2014, Jake Roper, EA and JB covered up the CCTV cameras in their cells with toilet paper. One or more of them yelled out to the other detainees in the BMU to do the same. LO and KW did not follow their example. Later, the BMU detainees were given their dinner in their cells. JB and EA said they were not going to give their dinner plates back. (These are made of hard plastic, relatively easily broken, and under the rules of Don Dale all plates and eating utensils must be returned after each meal.).
One of the detainees said something like, “Fuck ‘em. Let’s just run amok,” and all the detainees except LO and KW did just that. They started kicking the doors and yelling out things like, “Fuck you. You are fucking us around.” They broke their lights and removed the metal brackets for use as improvised weapons. EA and JB smashed a hole in the metal mesh on their door making a hole about the size of a soccer ball. They used the metal bracket from their broken light to chip bits of render from the wall and throw them at staff entering the BMU.
Just after 5.00 pm, Shift Supervisor (“SS”) Hansen telephoned AGM Sizeland and told him that the detainees accommodated in the BMU were misbehaving and throwing rocks or pieces of concrete at staff. AGM Sizeland does not appear to have been given any information distinguishing between those who were misbehaving (including EA, JB and Jake Roper) and those who were not (KW and LO). AGM Sizeland instructed SS Hansen to closely monitor the situation and give the detainees time to calm down.
Jake Roper also smashed a hole in the metal mesh on his door, put his hand through the hole, opened his door and got out into the exercise yard – effectively a narrow room or wide corridor outside the cells.
Once out of his cell, Jake Roper yelled out, ran around and used the metal bracket from his light to smash things. He smashed the window between the BMU and the admissions area, climbed through it and smashed a computer. Then he took a fire extinguisher and walkie talkie from the admissions area back into the BMU. He broke a window in the (locked) door leading into the basketball court and the window between the BMU and the storeroom. (He broke all available windows.) He also used the fire extinguisher to try to break the locks on the doors.
At about 7.45 pm, AGM Sizeland received another phone call, this time from Superintendent Caldwell who told him that the detainees in the BMU had not settled and were becoming increasingly aggressive and violent towards officers. At that AGM Sizeland decided to go to Don Dale. He contacted two YJOs and arranged to pick them up on his way to Don Dale. These officers worked regularly in the BMU and AGM Sizeland was of the opinion that they had good working relationships with the detainees and might be able to negotiate with them to de-escalate the situation.
AGM Sizeland and the two YJOs arrived at Don Dale at about 8.00 pm. When they arrived, SS Hansen told them that Jake Roper was out of his cell. AGM Sizeland tried to see what was happening but found it difficult. By this time the two small windows on the doorway from the corridor into the BMU had been broken, Jake Roper was throwing and poking things through those windows and it was too dangerous for AGM Sizeland to raise his head to the openings to get a better view of what was happening. Further, some of the cameras were covered or partly covered and he could not see much through them. However, he said that from what he could see, it appeared to him that some of the other detainees were also trying to break out of their cells.
AGM Sizeland could see that there was a lot of glass on the floor near the BMU entry door. He was concerned that the glass was a hazard to staff and detainees as it might be used as a weapon or cause accidental injury. He tried to remove the glass, using an old mattress to protect himself from the projectiles, but did not have much success.
AGM Sizeland said that as soon as Jake Roper saw him he went wild. He yelled words to the effect of, “I’ll fucken stab you, you white cunt.”
AGM Sizeland formed the view that his presence was aggravating Jake Roper and withdrew. He instructed YJO Kelleher (one of the YJOs he had picked up on the way to Don Dale) to speak to Jake Roper through the door. YJO Kelleher did try to speak to Jake Roper and try to calm him down, but Roper kept yelling abuse, throwing objects around the BMU and hitting the doors with the fire extinguisher. The CCTV and Handycam footage taken during this time shows Jake Roper moving around the room in an agitated manner, yelling and smashing things.
YJO Kelleher asked Jake Roper to let him go into the BMU to pick up the glass from the floor. Jake Roper responded by throwing things at the door and YJO Kelleher was unable to go in. This went on for some time. AGM Sizeland checked with YJO Kelleher from time to time and was told that there had been no progress.
It is necessary at this point to have some understanding of the layout of the BMU. The BMU is wide and rectangular in shape, and for the purpose of this explanation is assumed to be orientated north (in other words the top of the plan is north). The western side of the BMU comprises the five cells, with each door facing east. The easterly half of the BMU is the exercise yard. In about the middle of the eastern wall is a door leading to a corridor which leads into the dining room, and after that to the maximum security area. (It was from behind that door that YJO Kelleher was trying to talk to Jake Roper.) North of this corridor is a row of windows, behind which is the admissions area. North of the admissions area is a door to the security lounge. In the north-east corner of the exercise yard (next to the door into the security lounge) is a shower with a low wall on one of its other two sides. The northern wall is comprised of a row of windows, behind which is a storeroom. The southern wall has a door in the eastern corner which leads to the basketball court. This door was kept locked.
AGM Sizeland directed YJOs to go to each of the potential exit points. He deposed that his reasons for doing so were:
·to detain Jake Roper and prevent him from escaping further;
·to minimise Jake Roper’s access to further objects which could be used as improvised weapons; and
·to minimise the safety risk to Jake Roper. (He said he was particularly concerned that if Jake Roper tried to climb through the window into the storeroom he could be severely injured by dropping from the window onto the concrete floor 1.8 metres below which was covered in broken glass. Jake Roper had access to thongs but no shoes).
At some point, Jake Roper put some bedding over the broken glass in the window into the storeroom and tried to climb through. One of the YJOs in the storeroom used what appeared to be a broom to push him back.
In the meantime, Superintendent Caldwell had notified Commissioner Middlebrook what was happening. Commissioner Middlebrook left his Rotary meeting and headed for Don Dale. Before going, he put in a call to Grant Ballantine who was the acting general manager of Berrimah and asked him to mobilise some trained members of the Immediate Action Team (“IAT”) as well as a dog handler and one of the general purpose dogs. Commissioner Middlebrook said that the reason he asked for the Corrections dog to be deployed was that only weeks before these five young men had escaped from Don Dale. They had made it very clear to staff that the fence was a weakness and that if they had the opportunity they were going to go again. His intention was to put the dog on the fence line in order to have greater security if anybody got out of the contained area.
The IAT officers from Berrimah (POs Flavell, Lovegrove and Phillips) arrived at Don Dale at about 8.30 pm. They were equipped with masks, helmets, protective vests, shields and batons. Their equipment bags also contained aerosol canisters of CS gas.
AGM Sizeland asked them to remove the broken glass that had come through into the corridor. While that was being done, two officers held their shields up to the broken windows to stop projectiles coming through. This was not completely successful. As the IAT officers were trying to remove the glass, Jake Roper directed the fire extinguisher nozzle through the broken window and discharged the dry powder extinguisher at the IAT officers. This impeded their vision and caused at least one of the IAT officers some difficulty in breathing.
When Commissioner Middlebrook arrived at Don Dale he could hear the detainees in the maximum security section of Don Dale kicking and banging on their doors and yelling out. It was obvious to him that the incident was inciting a number of the young people who were housed in the maximum security block. He said that his biggest concern that night, when he entered the facility, was that those young people in the maximum security area might breach their doors and get out. He explained that Don Dale was built to domestic, not prison, standards. (That includes the doors other than those to the cells in the BMU.) He expressed the strong view that Don Dale was “really beyond its life fit for purpose”.
He explained further that over a period of time before this incident, some of the young people involved in the incident had been involved in pulling the central air-conditioning cassettes from the ceiling and getting into the ceiling, doing a lot of damage in the process. As well as the possibility of a mass escape should the high security detainees manage to get out of their rooms, the prospect of a fire in the centre was a major concern. Commissioner Middlebrook said that if substantial damage had been done to the facility, it could have rendered Don Dale inoperable and he did not have anywhere to relocate 30-odd detainees and house them within a short period of time. He said it was a critical situation and when he walked through the centre that night, it was escalating.
Because of these concerns, Commissioner Middlebrook said he realised that he had to bring the situation to a close quickly.
When Commissioner Middlebrook arrived at Don Dale, Superintendent Caldwell escorted him to the dining area at the other end of the corridor leading into the BMU. (The maximum security area where other high security detainees were kicking and banging on doors and yelling out was on the other side of the dining area.) Once there, AGM Sizeland and Superintendent Caldwell briefed him on what had been happening. They told him that one of the YJOs had failed to secure the door of Jake Roper’s cell correctly and, as a result, he was able to make a hole through the mesh, put his hand out and open the door. They told him that Jake Roper had smashed the windows into the admissions area and the storeroom windows and was throwing the glass and other objects at the YJOs when they tried to talk to him, and that he had also discharged the dry powder fire extinguisher at the YJOs.
AGM Sizeland also told him that some of the detainees in the other cells in the BMU had damaged light fittings and light switches which added a concern that if they had caused damage to the electrical system, they could end up in the dark and required to deal with the situation with torches. At some point in the evening, before the CS gas was deployed, the fire alarm went off adding to the noise of the detainees’ yelling and banging. It was eventually deactivated.
Commissioner Middlebrook was told that YJOs had tried to talk Jake Roper down from the situation but that each time they opened the door to try and communicate with him, he threw objects at them - sometimes glass, sometimes other objects that he had - and that one YJO had received a nasty cut to his shoulder. Standing in the hallway Commissioner Middlebrook witnessed some of the YJOs trying to communicate with Jake Roper and saw Jake Roper swinging a metal object and throwing things at the YJOs. He also saw the YJOs try to open the door and recover debris that had been thrown and which was close to the door space, but on each occasion they did that, Jake Roper threw more debris.
Once he had received the briefing from AGM Sizeland and Superintendent Caldwell, and had made those observations, Commissioner Middlebrook suggested taking the dog into the BMU through the door from the basketball court. The idea was to take the dog around to the basketball court door, open that door, and distract Jake Roper with the dog, hoping he would retreat to the other end of the room so that the IAT officers could safely go into the room through the door from the corridor and grab hold of him.
Unfortunately, the plan did not work. The lock on the door from the basketball court had been damaged (it appears by Jake Roper bashing it with the fire extinguisher) and they couldn’t get the door open.
From the footage played, the window above the storeroom can be seen, through which Jack Roper was throwing objects. An entrance to the BMU can be seen and an entrance from the basketball court where there was an unsuccessful attempt by officers to enter. There is also a door identified as part of a security lounge. At or during the disturbance only one entrance could be used. Photos before the Court marked ‘BMU Cell 2’ shows Ethan Austral and Josiah Binsaris’ cell, with chipped concrete which was thrown through a hole at officers. There was a serious problem for staff who were barricaded inside the dining area because when they tried to access the H block, Jake Roper was throwing projectiles through some windows and they smashed.

The level of the hazard was plain at various times in the lead up to the deployment of the CS gas as set out in the primary Judges findings above.
As above, the primary Judge also found Mr Middlebrook thought the incident would escalate and thought it needed to be brought to a close quickly. There was also concern expressed about damage to the electrical fittings which was influential in the decisions made about how to bring the disturbance to an end. The advice was that Jake Roper could not be brought down. To attempt to access him was thought to be dangerous and there were concerns about what Ethan Austral and Josiah Binsaris would do given they had made a hole in the wall and had earlier thrown pieces of concrete out.
The defendant submitted the plaintiffs Ethan Austral and Josiah Binsaris were not in the category of innocent bystanders and were part of the reason why other options were not resorted to before the use of the CS gas.
The misconduct of those two plaintiffs on the particular evening is required to be taken into account, however as noted above by members of the High Court, the plaintiffs were bystanders at the time of the deployment of the CS gas. The detention centre was not fit for purpose. As already mentioned, given those circumstances, difficult behaviours may be anticipated given the very purpose of the Detention Centre is to detain children and youths who have committed (often) serious offences and are likely to have come from difficult to extremely difficult social circumstances. While significant latitude is to be given to officers attempting to perform their duties in the heat of a dangerous or emergency situation, it is still fundamental those duties be performed lawfully. The defendant did not give the officers the knowledge or tools to deal with the situation lawfully.
It is appreciated there is a level of abstraction involved in this assessment as the primary Judge was dealing with this issue as though the use of CS gas was lawful. As a ruling has been made by the High Court that its use was not lawful, the CS gas cannot now be considered as a reasonable option. The primary Judge ruled out a number of other options the officers could have taken, but that was in a context where the use of the CS gas was an available option. As its use was unlawful, it cannot now be found to have been reasonable. Had the officers known deployment of the gas was unlawful they would have considered other options. For example, reference was made by the primary Judge to an earlier incident in which police negotiators talked detainees down from the roof of the Detention Centre. Calling police was rejected as an option, however it may be reasonably inferred that conclusion would have been different if the CS gas was not an available option.[29] That option may have been available even accepting the previous incident when police were called had not reached the same level of concern as here. By force of circumstances other options would have been considered but were not taken up given the Youth Justice Officers resort to the CS gas.
Although the Court is required to have regard to the difficult circumstances the officers faced, the footage from Handycam 209 tendered and played, while showing the volatile circumstances and behaviour of Jake Roper, also shows a level of hostility, high handedness or disparaging comments on the part of some officers towards detainees. For example, when determining how to deal with Jack Roper, one of the officers who is unknown said “Nah, let the fucker come through because while he’s coming through, he’ll be off balance. I’ll pulverise the little fucker. Oh shit, you’re recording”. One of the officers who was in that conversation which took place in the storeroom then said “Go grab the fucking gas, we’ll gas him through fucking, get Jimmy to gas him through here.”
After the gas was deployed, the footage shows two of the plaintiffs in their cell and two (Keiran Webster and Leroy O’Shea) looking out from their cell and being removed, covering their faces with their hands and either clothes or bedding while the CS gas is being deployed. Prior to being removed from their cells they are seen taking cover under a mattress. When Jake Roper reacts to the spray, the officers in the storeroom are heard to laugh and say “That’ll learn you” and “Now he’s shitting himself”.
When the dog handler Mr Lording arrived in the dining room and asked whether they will “gas the lot of them”, Mr Middlebrook responded with the words “I don’t mind how much gas you use”.[30] The primary Judge noted Mr Middlebrook’s evidence when he was asked about that comment and he said “Look, you know, that seems like a very callous comment that I made but I wasn’t talking to the IAT officers. I was responding to Mr Lording, the dog handler [who had asked whether or not it was proposed to gas the lot of them]. I knew they had aerosol. I knew that aerosol pack was a limited amount of gas. I knew that the officer who was going to deploy the gas was fully trained, and would have understood how much to actually use to bring Mr Roper under control. I also made sure, and what’s not captured on the Handyman, is the fact that I made sure that the officers got the fire hoses rolled out ready to decontaminate the juveniles. And what else is not captured is the fact that we organised the staff into teams to go into that area to remove the juveniles. The other thing I was very mindful of is that only the IAT officers had personal protection and so the officer that deployed the gas fully understood that staff without that protective equipment were going to have to go in there and remove detainees as well.” While Mr Middlebrook acknowledged the harshness of his comment, the answer that followed addressed many other subjects but did not explain the comment. The primary Judge did not give the comment the Court’s imprimatur.
In the context of the claims for general and aggravated damages there is documentary evidence of Correctional Services material[31] which sets out in some detail the hazardous nature of CS gas including its recognised health effects. The likely effects strongly support the evidence given by the plaintiffs. It also deals with first aid matters. This includes instructions to flush the victim’s eyes with water or saline solution for 15 to 20 minutes. Further, Exhibit P24 was a training manual for the IAT (‘IAT Course Material’) produced at trial on behalf of the defendant. It too describes the physiological effects including: extreme burning of the eyes, irritation of the nose and throat, tightness of the chest, difficulty in breathing, possible fear of suffocation, dizziness, vertigo and nausea. It also gives instructions on removal from the contaminated area and washing or showering with cool water for three to five minutes.
The IAT Course Material also warns of toxicity and notes ‘Normal exposure during outdoor use causes no known lasting effects’. The CS gas was not deployed outside, it was in a confined space making it more concentrated than when it is used disperse outside crowds. The IAT Course Material warns that if in large enough concentrations, it can cause serious injury or death. The plaintiffs could not leave their cells so on their case were placed at greater risk than being subject to the gas outside. That risk is likely to have been mitigated due to the method of dispersion being calibrated for use indoors as the amount of gas can be controlled. In any event, the IAT Course Manual warns ‘when CS is released in a confined space, the possibility of an overdose must be considered. If the time for a lethal dosage is calculated to be 10 minutes, then theoretically, a person in the room has only a 50/50 chance of survival after 10 minutes’. It seems obvious from the IAT Course Manual that there are certain risks in releasing the gas into a confined space. The heightened risk on the defendant’s case did not eventuate as the dosage was modified for indoor use for safety reasons. I accept that to make a final conclusion, expert evidence is required. However, the IAT Course Material does highlight the dangers associated with the gas. This was not an innocuous substance.
Leroy O’Shea and Ethan Austral were asthmatic. Their health status was not checked as the procedures which pertain to adults dictated it should have been. They were at greater risk due to their medical conditions. They gave evidence of having been given asthma medications previously at the Detention Centre.
I now return to the question of exemplary damages. According to Lunz,[32] exemplary damages may be awarded for any tort that is committed ‘in circumstances involving a deliberate, intentional or reckless disregard of the plaintiff’s interests’. Whatever the cause of action, there must have been ‘conscious wrongdoing in contumelious disregard for another’s rights’.[33]
The defendant strongly opposes any award of exemplary damages. The basis for the opposition is that such an order would impact negatively or unfairly on the various officers involved, notwithstanding the Northern Territory accepts it is vicariously responsible for their conduct. Additionally, the following arguments were put. The officers did not know the deployment of CS gas in a detention centre was unlawful. It was not obviously unlawful, as later the trial Court and the Court of Appeal found it was lawful. In the difficult and dangerous circumstances of the disturbance, using the CS gas was the safest option. The independent expert evidence of Mr Kelleher was that use of the gas was the least hazardous option available. The plaintiffs were immediately decontaminated and they saw a nurse later that evening where no adverse health outcomes were noted.
If the Court was considering the liability for damages solely of the individual officers concerned a different view might be taken. Here the Northern Territory as defendant at that time allowed an environment to exist where senior officers did not know the extent of their powers when dealing with some of the most vulnerable in the community. The defendant has the right, indeed the obligation, to hold children and young people in detention on remand or to serve sentences imposed by the courts. With that right or obligation comes a high level of responsibility. As well as maintaining order of a detention centre, under s 151(3)(c) of the Youth Justice Act the Superintendent of a detention centre must ensure the safe custody and protection of all persons within the precincts of the detention centre. The Superintendent must also supervise the health of detainees. The fact the officers of the defendant did not know that a particular weapon used in the detention centre was unlawful, meant the defendant failed in some of its most fundamental duty to keep detainees safe. The fact that courts after the event found on a technical basis the use of force was lawful is largely irrelevant. It was an unlawful use of force.
In Lamb v Contogno[34] the High Court quoted from Mayne & McGregor on Damages when describing exemplary damages:[35]
Such damages are variably called punitive damages, vindictive damages, exemplary damages, and even retributory damages. They can apply only where the conduct of the defendant merits punishment, which is only considered to be so where his conduct is wanton, as where it discloses fraud, malice, violence, cruelty, insolence or the like, or, as it is sometimes put, where he acts in contumelious disregard of the plaintiff’s rights.
Justice Brennan has said that an award of exemplary damages ‘is intended to punish the defendant for conduct showing a conscious and contumelious disregard for the plaintiff’s rights and to deter him from committing like conduct again’.[36] In addition to determining whether the exceptional circumstances of a case call for an award of exemplary damages, the Court will also consider whether the other damages already awarded against the defendant are sufficient to fulfil the retributive, punitive or deterrent purposes of exemplary damages. In NSW v Ibett[37] the High Court, when dismissing an appeal, quoted the earlier judgment of Spigelman CJ who stated that it is necessary:[38]
[T]o determine both heads of compensatory damages before deciding whether or not the quantum is such that a further award is necessary to serve the objectives of punishment or deterrence, or if it be a separate purpose, condemnation.
The awards to be made for general and aggravated damages will be appropriate for the amount of time the plaintiffs were subject to mistreatment constituting battery and its associated distress, physical and psychological. The conditions which gave rise to this unlawful use of force perpetrated on youths in a Detention Centre for whose safety and wellbeing the defendant was responsible for must never be allowed to happen again. I accept the difficulties the Youth Justice Officers experienced, however the defendant must take responsibility for putting them in that position or creating the conditions where they thought they had no option but to resort to unlawful unreasonable and excessive force. The mode of force used should not have been in the range of options available but it is the Northern Territory as the defendant who bears that responsibility. Young people in custody must be protected from exposure to such danger. This is fundamental. The Court must demonstrate its disapproval of the Northern Territory allowing this to take place, noting the Northern Territory accepts vicarious responsibility for the acts of the officers. The plaintiffs have made good the propositions set out at [11] above with respect to the claim for exemplary damages.
In awarding exemplary damages I have regard to the fact the plaintiffs for the most part were bystanders. They were not the reason the CS gas was deployed. As youths under 18 and under the care of the defendants, the Northern Territory was responsible for their safety and welfare. Senior officers working in a youth custodial situation should never have been placed in a situation where they thought it was lawful to use a weapon when it was not. The unlawfulness goes further than mere negligence. It is a contravention of an offence provision of the Weapons Control Act. The deployment of the CS gas was deliberate. Its purpose was to incapacitate Jack Roper but the plaintiffs were directly exposed to it. They were treated as though they were the troublemakers. The trouble caused by two of the plaintiffs was earlier than the deployment of the gas and not at the level of Jack Roper’s conduct. At the time of the deployment the plaintiffs were in their cells. As above the excerpts from the footage give some insight into the callous way the plaintiffs were treated both during and after the exposure. The incident as a whole shows the plaintiffs were treated in a manner which recklessly disregarded their rights and interests.
While some acknowledgement of wrongdoing or an apology by the defendant may have lessened the need for a punitive approach to damages, after such a lengthy time since the critical incident it is not such a significant factor. I accept, as reminded by counsel for the defendant that the defendant participated in and helped facilitate the Royal Commission and Board of Inquiry into the Protection and Detention of Children and that is in its favour. Further, through observation of the work of the Court it is clear there have been some improvements in terms of programme availability in the Detention Centre and some legislative change. There has been implementation of a number of the recommendations of the Royal Commission and Board of Inquiry which took place after this incident, but I am principally having regard to the events of 2014. This must never be allowed to happen again.
On behalf of the plaintiffs, it is argued their Indigenous status is relevant. The Northern Territory disagrees. The fact the plaintiffs are Aboriginal is a factor. Unlawful actions by any arm of law enforcement, including Correctional Services, towards Aboriginal people adds to alienation and disengagement from the broader community for complex reasons which for many, but not all Aboriginal people, continue to resonate. It lessens trust between citizens and law enforcement authorities and lessens social cohesion in the broader community.
General damages
In assessing general damages for all plaintiffs, it is accepted this was a traumatic event, albeit brief which is likely to impact youths emotionally, likely more than adults who may have more awareness of outcomes. It was a dangerous substance. Experiencing a sensation of not being able to breathe, even if brief, is distressing and informs the award of general damages for all plaintiffs. The plaintiffs have made good the claim for general damages for assault and battery based upon distress, humiliation and the physical effects of the CS gas. The method used for decontamination was humiliating. A factor which moderates the assessment of damages is that it is not a claim based on personal injury.
The time of exposure to the CS Gas
As this factor is relevant to all plaintiffs, I will mention it here. With respect to exposure to the CS Gas, as with most matters of fact, save for when the Court here is required to draw fresh conclusions or inferences as a result of the High Court’s ruling that the use of the CS Gas was unlawful, I will proceed on the primary Judge’s findings. On this subject the primary Judge observed:
[102]There is some uncertainty surrounding how long it took to remove the plaintiffs from their cells in the BMU. The plaintiffs estimate that LO and KW were exposed to the gas for six minutes 38 seconds and that EA and JB were exposed to the gas for five minutes and 20 seconds. As I understand it these times are from the first discharge of the gas into the BMU. The plaintiffs estimated time of exposure for LO and KW was taken from the camera in their cell and was the total time during which they were under a blanket at the far end of the cell. However, there is no evidence of what concentration of gas (if any) reached their cell before they took this very sensible precaution.
[103]The defendant estimates that from the first spray of CS Gas it took two minutes 41 seconds for Jake Roper to be taken out, between four minutes 31 seconds and four minutes 39 seconds for EA and JB to be taken out, and between five minutes 53 seconds and five minutes 55 seconds for LO and KW to be taken out. (These estimates are taken from the composite video.) Defence counsel pointed out that the first and second sprays had no discernible effect on Jake Roper (who was closer to the gas than the plaintiff’s); it would have taken some time for the gas to reach the cells; and PO Flavell waited a minute before discharging the third lot of bursts. The defendant estimated that from the time of the last spray took one minute and eight seconds to remove Jake Roper, between two minutes 58 seconds to 3 minutes and six seconds to remove EA and JB and between four minutes 20 seconds to 4 minutes 22 seconds to remove LO and KW.
Ultimately Her Honour found it was not necessary to make any final determination about the time, the evidence was that the Immediate Action Team (IAT) officers and YJOs took the detainees out of their cells as quickly as they could consistent with maintaining security. Neither party in the hearing on remittal required a precise finding. There is an available range for Keiran Webster and Leroy O’Shea of exposure from about 4 ½ minutes to about six or 6 ½ minutes. There is a range with respect to Ethan Austral and Josiah Binsaris of between three minutes and 5 ½ minutes.
Leroy O’Shea
The lead up to the CS gas and the physical and emotional effects of the CS gas which Leroy O’Shea attested to are set out above at [22]. He was likely exposed directly while in the BMU between 4½ minutes to 6 or 6½ minutes. He was then removed from his cell. Although it is accepted as counsel for the defendant points out, that the primary Judge found there were credit issues with the plaintiffs, the description given by Leroy O’Shea of the physical effects and the fear from finding it hard to breathe is all consistent with the physical effects described in Exhibit P24. It is accepted he was fearful and experienced the physical and psychological consequences he described. He was not involved in the disturbance. He was a totally innocent bystander.

I assess general damages in the sum of $30,000.
Keiran Webster
The lead up to the incident and the physical and psychological consequences Keiran Webster attests to are set out at [30] above. He was directly exposed for the same or a similar time as Leroy O’Shea. He describes similar physical sensations and expresses fear because it was ‘so hard to breathe’. He said he thought he would die, or stop breathing. Although as with all plaintiffs there are some credit issues to be mindful of, his description of the consequences of exposure are supported by other evidence.
I assess general damages in the sum of $30,000.
Ethan Austral
The lead up to the incident and the physical and psychological consequences Ethan Austral attests to are set out at [32] above. He was directly exposed to the CS gas for between three and 5½ minutes. The gas made him feel sick. He felt pain and was coughing for some time, with his eyes burning while he was in the van taken to Berrimah. There are credit and reliability issues with Ethan Austral, but there is supportive evidence of the consequences of exposure he described. He was involved in the earlier parts of the disturbance which included blocking the camera in the cell with Josiah Binsaris which contributed to difficulties for the Youth Justice Officers. Chipped concrete was thrown through a hole at officers from cell ‘BMU Cell 2’. This increased the difficulty for Youth Justice Officers. Some adjustment is to be made for his actions. He was in his cell when the gas was deployed.
I assess general damages at $25,000.
Josiah Binsaris
Josiah Binsaris was exposed to the CS gas for the same period as Ethan Austral and was engaged in similar misconduct. I cannot readily assess psychological consequences but accept he would have suffered similar physical consequences as the other plaintiffs.
I assess general damages at $20,000.
Aggravated damages
I have regard to the fact the plaintiffs were not the targets of the CS gas. They were all in their cells. They could have been, but were not told what was about to happen. One of the plaintiffs gave evidence there was an intercom. In any event they had no reassurance that this would be a brief dose of the gas, that they would be safe and would be taken out of the cells. There is a sense of grievance expressed as to why they were treated roughly, hand cuffed from behind, placed on the basketball court on their stomachs and hosed. It was in order to decontaminate and contain them but it was a rough process. Given what they had endured, they deserved to be treated with more care than the callousness evident on the available footage. The plaintiffs look uncomfortable on the footage. They had not behaved like Jake Roper. Leroy O’Shea and Ethan Austral were asthmatic. They deserved more care after what had occurred but were not seen by a nurse until 10:00pm and then only briefly. The post exposure treatment extended the distress felt. The manner used for decontamination was humiliating.
There were however, fortunately no lasting effects. No further health concerns appear to have been reported to the nurse. The defendant points out the plaintiffs do not appear to be distressed when they are handcuffed on the ground and notes at times they are laughing. They were laughing at times when they could see each other’s faces, however that reaction could be for many reasons. It can readily be inferred that there would be a sense of relief after experiencing the sensation of not feeling as though they could breathe when they were in their cells. The three plaintiffs who gave evidence about that part of the episode should receive some form of aggravated damages for the rather callous treatment after the exposure to the gas and the extended physical and psychological consequences. The use of force in the form of the CS gas was contrary to the Youth Justice Act and the obligations on Youth Justice Officers to keep detainees safe. This is all in the broader context of an unlawful use of force. As there is no evidence from Josiah Binsaris, I am unable to make an assessment under this head of compensatory damages.
I will award $20,000 each of the plaintiffs, Keiran Webster and Leroy O’Shea as aggravated damages. I will award Ethan Austral $15,000.
For the reasons already stated and to ensure the defendant knows this must never happen again and to show the Court’s disapprove of unlawful force being used on children or youths in detention, I will award $200,000 to each plaintiff by way of exemplary damages.
The plaintiffs claim interest. Interest is potentially applicable to the award of general damages. I am mindful the incident giving rise to this action took place in 2014, some nine years ago. The question of whether interest is to awarded and at what rate is principally governed by s 84(1) of the Supreme Court Act 1979 (NT). Section 84(1) states the Court ‘may order that there shall be included in the sum for which judgment is given, interest at such rate as it thinks fit on the whole or any part of the sum for the whole or any part of the period between the date when the cause of action arose and the date of the judgement’. Although it is appreciated the discretion is wide, it must be exercised judicially.
This plaintiffs are unlike a commercial entity where particular features which are not present here apply. On the one hand it is appropriate that the sums awarded under general damages keep their value. On the other hand the plaintiffs will have the benefit of a reasonably significant sum through the award for exemplary damages. Although that it is not at all the purpose of the award for exemplary damages, as a matter of fact the plaintiffs will not be out of pocket by virtue of not being awarded interest for the sums awarded for general damages. In the exercise of the discretion there will be no award for interest to be paid.
Based on previous practice and time required by government parties to make arrangements for payments of this kind, the defendant will be allowed 21 days from 1 September 2023 to pay the plaintiffs the sums awarded.
As previously arranged, these reasons and orders will be forwarded to counsel.
Orders
The Court makes the following orders:
1.        File SC 26 of 2015 (21513348)
The defendant is to pay the following to the plaintiff Josiah Binsaris
General damages:         $20,000
Exemplary damages:     $200,000
Total:  $220,000
2.        File SC 19 of 2015 (21510204)
The defendant is to pay the following to the plaintiff Keiran Webster
General damages:         $30,000
Aggravated damages:      $20,000
Exemplary damages:       $200,000
Total:  $250,000

3.        File SC 15 of 2015 (21508785)
The defendant is to pay the following to the plaintiff Ethan Austral
General damages:         $25,000
Aggravated damages:        $15,000
Exemplary damages:          $200,000
Total:  $240,000

4.        File SC 14 of 2015 (21508784)
The defendant is to pay the following to the plaintiff Leroy O’Shea
General damages:         $30,000
Aggravated damages:     $20,000
Exemplary damages:     $200,000
Total:  $250,000
5.The defendant is to pay the plaintiffs or their legal representatives on their behalf within 21 days from today, September 1, 2023.
6.No order for payment of interest.
7.Leave is granted for any party to make an application for costs. Any party seeking to make a costs application may contact my Chambers to make relevant arrangements.

These orders and reasons are to be forwarded to the legal representatives of the parties today as arranged.[39]
---------------------------

[1] LO & Ors v Northern Territory of Australia [2017] NTSC 22; 317 FLR 324.

[2] JB & Ors v Northern Territory of Australia [2019] NTCA 1.

[3] Binsaris & Ors v Northern Territory of Australia [2020] HCA 22.

[4] This part of the claim, in square brackets, was rejected by the primary Judge and will not be considered further here but is included for completeness; LO &Ors v Northern Territory of Australia [2017] NTSC at [168]-[173].

[5] R P Balkin & J L R Davis Law of Torts (4th ed, 2009) at [3.14].

[6] Lamb v Cotogno (1987) 164 CLR 1 at 8; Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 149.

[7] Whitfield v De Lauret & Co Ltd (1920) 29 CLR 71 at 77.

[8] White v South Australia [2010] SASC 95 at [441] (White).

[9] White at [443].

[10] [2015] QCA 187 (Bulsey); Majindi v Northern Territory [2012] NTSC 25 (Majindi); and Kunoth-Monks v Healey [2013] NTSC 74 (Kunoth-Monks).

[11] Exhibit P14.

[12] Binsaris & Ors v Northern Territory of Australia [2020] HCA 22 at [105].

[13] Binsaris v Northern Territory of Australia [2020] HCA 22 at [27]-[28].

[14] Binsaris v Northern Territory of Australia [2020] HCA 22 at [49]-[50].

[15] Exhibit P10, Medical Records.

[16] Exhibit P16.

[17] Binsaris & Ors v Northern Territory of Australia [2020] HCA 22 at [20].

[18] Binsaris & Ors v Northern Territory of Australia [2020] HCA 22 at [105].

[19] Binsaris & Ors v Northern Territory of Australia [2020] HCA 22 [36], [46]-[49].

[20] Final Report of the Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory Vol 2A.

[21] [2016] FCA 1457.

[22] (2019) 59 VR 241 (Cruse).

[23] (2010) 106 SASR 521.

[24] Lo & Ors v Northern Territory of Australia at [137]-[166].

[25] Ibid at [77]-[78].

[26] Lo & Ors v Northern Territory of Australia & Ors at [337].

[27] Trial Transcript, 212-223.

[28] Ibid.

[29] Lo & Ors v Northern Territory of Australia [2017] NTSC 22 at [160].

[30] As recorded by the primary Judge Lo & Ors v Northern Territory of Australia [2017] NTSC 22 at [86], fn 13.

[31] Exhibit P23.

[32] Harold Lunz, Assessment of damages for personal injury and death, (LexisNexis 4^th ed) 71-72 (footnotes omitted).

[33] Ibid at 73.

[34] (1987) 164 CLR 1, [8].

[35] JD Mayne and H McGregor, Mayne & McGregor on Damages (Sweet and Maxwell, Limited, 12^th ed, 1961) 196.

[36] XI Petroleum (NSW) Pty Ltd v Caltex Oil Australia Pty Ltd [1985] HCA 12, 155 CLR 448 at 471.

[37] (2006) 229 CLR 638.

[38] Ibid at [34].

A courtesy letter will be forwarded to counsel with these reasons.