Broughton v The State of New South Wales

[2009] NSWDC 5

CITATION:	Broughton v The State of New South Wales [2009] NSWDC 5
HEARING DATE(S):	27, 28 January, 6 March 2009
JUDGMENT DATE:	4 May 2009
JURISDICTION:	District Court - Civil
JUDGMENT OF:	Levy SC DCJ
DECISION:	1. Verdict and judgment for the Defendant. 2. Plaintiff to pay the Defendant’s costs.
CATCHWORDS:	TORT– assault – claim for damages for alleged assault by a police officer in execution of crowd control duties at a football match – use of oleoresin capsicum spray – whether in self-defence – whether Plaintiff was hindering the arrest of her sister who had earlier assaulted the police officer – whether the use of spray was justified or whether it amounted to an assault in the circumstances.
LEGISLATION CITED:	Civil Liability Act 2002 Crimes Act 1900 Sydney Olympic Park Authority Regulation 2001
CASES CITED:	McIntosh v Webster (1980) 43 FLR 112 Pringle & Ors v Everingham [2006] NSWCA 195 Rixon v Star City Pty Ltd [2001] NSWCA 265; (2001) NSWLR 98 Walker & Anor v Hamm & Ors [2008] VSC 596 Woodley v Boyd [2001] NSWCA 35
PARTIES:	Renee Crystal Broughton (Plaintiff) The State of New South Wales (Defendant)
FILE NUMBER(S):	4887 of 2007
COUNSEL:	Mr T Boyd (Plaintiff) Mr G Butler (Defendant)
SOLICITORS:	Herbert Weller (Plaintiff) IV Knight, Crown Solicitor (Defendant)

JUDGMENT

Nature of the case

1. The Plaintiff claims damages in respect of an alleged assault that occurred when she was sprayed with oleoresin capsicum spray [“OC spray”] by a police officer during a crowd melee on a playing field following a football match.

2. The Plaintiff alleges the assault took place at the Sydney Olympic Stadium on 15 October 2005. She was on the playing field following an Australia versus New Zealand rugby league match. She had been asked by the police officer to leave the field but had remained for the purpose of attempting to restrain her sister who had earlier been arrested. In the process the police officer sprayed the Plaintiff with OC spray whilst the Plaintiff and another police officer were holding onto the Plaintiff’s sister. The Plaintiff said she was trying to calm her sister down. The police perception was that the Plaintiff was trying to free her sister from restraint by pulling her away. Consequent upon these events the Plaintiff claims compensatory, exemplary and aggravated damages. The Defendant, the State of NSW, the employer of the police officer, has denied liability and claims the Plaintiff was hindering police in the execution of their duties in the circumstances. The Defendant claimed the use of the spray was justified both as a self-defence measure and to deal with the hindrance of the execution of police duties.

Issues for determination

3. The liability issues for determination are:-

(a) What were the relevant background events and the conduct of the Plaintiff in the lead-up to the incident complained of and was that conduct unlawful;

(b) What was the sequence of events that occurred between the Plaintiff and the police officer concerned in the incident;

(c) Was the Plaintiff assaulted as alleged or was the police officer justified in using OC spray on the Plaintiff:

(i) to control the Plaintiff’s behaviour that was hindering the execution of police duties; or
(ii) for legitimate self-defence;

4. The damages issues for determination are the entitlement of the Plaintiff, if any, to:

(a) compensatory damages;
(b) exemplary damages;
(c) aggravated damages.

Witnesses

5. The following witnesses were called in the Plaintiff’s case:

(a) The Plaintiff, Mrs Renee Broughton;
(b) Mrs Donna Dally, the Plaintiff’s mother;
(c) Mr Sean Broughton, the Plaintiff’s husband;
(d) Ms Bianca Dally, the Plaintiff’s sister;

6. The following witnesses were called in the Defendant’s case:

(a) Sergeant Ian Johnstone, a police officer who, as a Leading Senior Constable at the time, was present on duty on the playing field and assisting with control of the crowd and attempting to remove the crowd from the playing field;

(b) Mr Mark Nolan, a professional photographer who was present at the scene and who took photographs of some of the relevant events;

7. The police officer whom the Plaintiff claims assaulted her by spraying her with OC spray was not called as a witness as she was certified to be medically unfit to give evidence for reasons that were unrelated to the circumstances of the case. No adjournment was sought on account of the unavailability of this police officer. It was agreed by the parties that no adverse comment arose as a result of this officer not being called to give evidence.

Applicable legal principles

8. In the context of this case, the tort of assault is constituted if it is shown that an intentional battery was committed on the Plaintiff where the apprehension of such a result was either intended or foreseeable : Rixon v Star City Pty Ltd [2001] NSWCA 265 per Sheller JA at [56] – [57]; (2001) NSWLR 98.

9. Self-defence can be a defence to a civil action for assault provided excessive force was not used. Actions taken pursuant to legal authority where the circumstances would otherwise amount to an assault can also be raised as a defence to a claim framed in assault. In each case, the onus rests with the defence to prove that the actions in question were justified because they were taken either in self-defence or pursuant to legal authority.

The Plaintiff’s background and circumstances

10. The Plaintiff was born in New Zealand in 1978. She is married with 5 children. She arrived in Australia in 2002 when she was aged 24 years. She is an intelligent and articulate person. At the time of the incident in 2005 she was aged 27 years. She was aged almost 30 at the hearing of the claim. The evidence discloses that she has had a very difficult life.

11. The Plaintiff’s unfortunate history dated back to her early childhood years which led her to abuse alcohol by the age of 9 years. She met her husband at a drug and alcohol rehabilitation facility when she was aged 15 years. By the age of 17 years she was married and had her first child. She has had 5 children aged 12, 10, 6, 4 and 18 months. She has also had a number of miscarriages and other health problems. The Plaintiff has never worked as she has been fully engaged in looking after her children, although, as the clinical notes comprising Exhibit “1” record, and which her mother there confirmed, she has done a counselling and social work degree in New Zealand as well as three years of a law degree. These facts did not feature in her oral evidence, perhaps out of modesty.

12. It is not necessary to recount the origin or the causes of the many other difficulties the Plaintiff has encountered in her life. In response to periodic stressors in her life she has shown a pattern of engaging in binge drinking and binge gambling, for which she has at various times sought and obtained treatment. The Plaintiff’s psychological history indicated that she is a person who is inherently vulnerable to psychological stressors. Notwithstanding her unfortunate background, she has nevertheless earnestly and admirably devoted her energies into raising her family.

The conduct of the Plaintiff and her sister in the lead-up to the incident

13. On 15 October 2005 the Plaintiff, along with other members of her family, attended the Telstra Stadium at Sydney Olympic Park as spectators at the Australia versus New Zealand Rugby League football match. On this occasion the New Zealand team won the match. After the match a number of the New Zealand team supporters, including the Plaintiff’s sister and the Plaintiff, entered onto the playing field in an atmosphere that was marked by euphoria.

14. There was an issue over whether at the relevant time, the entry of spectators onto the playing field was a prohibited activity. The Plaintiff’s evidence was that notwithstanding the presence of erected signs which indicated that such entry was prohibited, following the spontaneous post-match entry of a large number of spectators onto the field, she had asked a nearby security guard whether she could enter the field in order to join the throng of spectators already present on the field. She said that this security guard gave her permission to enter the field and she then did so, along with other members of her family. In this way she joined a growing number of spectators on the field. She said that at that time there were no police officers in the vicinity.

15. The euphoric atmosphere and the mood of the crowd of the New Zealand supporters was elated and exuberant. It appears that the general intention of the supporters who had entered the field of play, including the Plaintiff, was to seek an opportunity to personally congratulate members of the winning team. The Plaintiff stated that when she entered the playing field she was carrying a friend’s four-year-old child on her shoulders. She did so after having earlier consumed about 6 glasses of what seems to have been light alcohol beer over a period of about 80 minutes before the end of the match. I accept the Plaintiff’s account of the foregoing events.

16. Shortly after members of the crowd of spectators had entered the playing field, unbeknown to the Plaintiff and the other spectators on the field, a message had been broadcast over the police radio asking that police officers on duty at the stadium proceed to remove the spectators from the field. There was no issue that this was anything other than a lawful and reasonable order in the circumstances.

17. In response to that message, Leading Senior Constable Johnstone and his assigned co-officer, whom I shall refer to as a female police officer, both of whom had earlier been assigned to patrolling the spectator stands, responded to that message and entered the field to assist in the removal of spectators. It is clear that the Plaintiff, the members of her family and other persons in the crowd were initially unaware of the police intention to remove spectators from the playing field.

18. It was common ground that shortly after the Plaintiff went onto the field she was spoken to by the female police officer who had asked the Plaintiff several times to leave the playing field. The presence of unauthorised persons on the playing field was prohibited by Regulation 16 of the Sydney Olympic Park Authority Regulation 2001 which provided:

“ 16 Prohibited entry to playing fields

A person must not enter or remain on a playing field or other competition area within a sportsground unless the person:


(a) is a participant in a sport or event held with the authorisation of the Authority, or

(b) is engaged in the control or management of any such sport or event, or

(c) has, or is a member of a class of persons that has, been authorised by the Authority to enter the playing field or other competition area.”

19. There was no dispute that the Plaintiff was not an authorised person who was permitted to enter and remain upon the playing field.

20. It seems that after some verbal resistance from the Plaintiff in which the female police officer’s requests for the Plaintiff to leave the field were ignored, the female police officer made several open handed pushes onto the Plaintiff’s chest. The context of those actions was that the Plaintiff had verbally challenged the request that she be required to leave the field. In aid of that challenge the Plaintiff pointed out and cited the obvious presence of many other spectators on the field. By that time those spectators were described as numbering at least 100 persons if not more. In this exchange the Plaintiff also verbally challenged the physical crowd control actions of that police officer who had pushed and shoved her on her chest. The Plaintiff said her concern at the time was that she was carrying a child on her shoulders. I accept the Plaintiff’s evidence concerning these events.

21. The Plaintiff’s younger sister, who was also on the playing field at the relevant time, gave evidence that she had observed the foregoing interchange between the Plaintiff and the female police officer. The Plaintiff’s sister moved forward to address and confront that female police officer in most certain and aggressive terms, which then caused that police officer to inform the Plaintiff’s younger sister that she was under arrest.

22. The events that transpired following this arrest are the subject of varying accounts in the oral evidence. Available photographic evidence and DVD footage of the events were also tendered. That evidence adds detail to the oral evidence and assists in arriving at an understanding of the events that have given rise to this litigation.

The incident

Oral evidence

23. The Plaintiff’s sister gave oral evidence. She presented as a reasonable and articulate witness. She held a responsible job. I infer from her evidence that she regretted her role in the events in question. It appears that she had entered onto the playing field before the Plaintiff. Once the Plaintiff had entered onto the playing field her sister saw the female police officer twice push the Plaintiff with open hands to the chest area with some force whilst the Plaintiff had a friend’s 4-year-old child seated on her shoulders. The Plaintiff’s sister, who had hitherto also consumed a quantity of alcohol, said she then became worried and concerned at observing the interchange between the Plaintiff and the female police officer. In response the Plaintiff’s sister ran over to where this incident had been taking place. In her evidence she described her recollection of the interchange between the Plaintiff and the female police officer:

“Q. Did you hear any conversation between your sister and the police officer?
A. There was conversation, I don't recall a lot of it. I recall towards the end of the conversation my sister saying, "Okay I'm going, no need for you to put your hands on me." That's all from that part of it that I recall.”

24. The Plaintiff’s sister had formed the opinion that the female police officer had used force needlessly in dealing with the Plaintiff. She had also formed the opinion that the police officer had acted in a manner that she thought to be inappropriate when dealing with the Plaintiff especially whilst she had been holding a child on her shoulders. Consistent with the opinions she had formed, the Plaintiff’s sister then proceeded to remonstrate with the female police officer. However, due to an incomplete recollection of the event, she was unable to give a full and detailed account of the ensuing series of verbal interchanges that had taken place between herself and that police officer.

25. The Plaintiff’s sister said that her reason for approaching the scene was to make sure that her sister was “okay”. She conceded that she had acted violently towards the female police officer. This included the concession that her clenched fist had made contact with the female police officer’s face.

26. That event was recorded on DVD footage to which I will later refer in more detail. The Plaintiff’s sister agreed that whilst the Plaintiff and another police officer were holding her in physical restraint, her legs and arms were flailing about. She agreed that at some stage she had heard words to the effect that she had been informed she was under arrest for assaulting police. Subsequently, criminal proceedings were brought against the Plaintiff’s sister concerning the foregoing events. It is not relevant to describe the detail of those proceedings.

27. During the cross-examination of the Plaintiff’s sister it became apparent that she did not have a clear recollection of the entire sequence of events that had occurred in relation to the incident. For example, she could not recall being asked to leave the field, she did not initially recall hearing that she had been arrested and she did not recall an earlier event in which she had been placed on her knees on the ground by a police officer when she was arrested.

28. The Plaintiff’s sister agreed that whilst she was being held in physical restraint, both by her sister and Leading Senior Constable Johnstone, she had continued to struggle during which time she was trying to get away from being held in this way. I find that at this time she had already been told by the police officers in attendance that she was under arrest. Neither the Plaintiff nor her sister had a recollection which disputed Sergeant Johnstone’s testimony in this regard. I accept Sergeant Johnstone’s evidence which described these events as that evidence was inherently reasonable and measured.

29. It was after that arrest and during this struggle that the female police officer sprayed the Plaintiff’s sister in the face with OC spray, following which the Plaintiff’s sister went down onto the ground whilst still being held by the Plaintiff on her right side and by Leading Senior Constable Johnstone on her left side.

30. Whilst the Plaintiff’s sister was still struggling, and after she had been sprayed, the female police officer stepped forward again, at which time she aimed and caused a further discharge of OC spray in the direction of the Plaintiff. Both the Plaintiff and Leading Senior Constable Johnstone were each affected by that further spray. It is that further spray that has given rise to these proceedings.

31. A closer examination and analysis of the events is therefore required.

DVD and photographic evidence

32. Having viewed the available DVD footage of the events, I gained the impression that the account of the events given by the Plaintiff’s sister seems to me to be overly simplistic when compared to the much more detailed account given in evidence by Sergeant Johnstone. I consider that the Plaintiff’s sister’s account of the events is unduly narrow in its focus when compared to Sergeant Johnstone’s overall account of the surrounding circumstances.

33. It is not surprising or unusual that in litigation witnesses differed in their factual accounts of the events such as has emerged in a comparison between the evidence of the Plaintiff’s sister and the evidence of Sergeant Johnstone. This is so because perceptions and memory processing of events can lead to differing views being held by different observers of the same events. This is particularly so when perceptions have been influenced by emotions and the consumption of alcohol. In this case the facility for resolving the disputed accounts of the events is assisted by evidence comprising DVD footage that was recorded by a television station news cameraman who was covering the events. Also of assistance are some still photographs taken by a media photographer, Mr Nolan.

34. The copy of the DVD footage tendered as Exhibit “A” showed an edited segment confined to the event with which the case is concerned. That footage was also copied into duplicate form showing a slow motion version of the same sequence of events. I will endeavour to describe those events.

35. Exhibit “A” was viewed a number of times during the course of the hearing, both in its real time and in its slow motion versions. In analysing the sequence of events that comprised the depicted incident it is important to observe that what is depicted in the DVD recording is necessarily limited by its narrow time frame and uni-dimensional character. Nevertheless certain things are clear.

36. In the real time DVD segment, a male police officer is shown clearly to be attempting to muster and control a number of spectators who were present on the playing field. One of the persons in the crowd on the field is clearly shown as being the Plaintiff’s sister. She is shown to be obviously behaving aggressively. She is also shown to be obviously resisting attempts by a police officer to restrain her. In that melee the Plaintiff’s sister is shown to be behaving with demonstrable verbal and physical aggression towards the female police officer who is shown on the DVD to have, by then, approached the vicinity where the foregoing events were occurring. I infer from this evidence that the female police officer had reasonable and good cause to approach the scene in order to assist her colleague who was trying to physically restrain the behaviour of the Plaintiff’s sister.

37. In that context, the Plaintiff’s sister is clearly shown to have been verbally aggressive. She was lashing out physically towards the female police officer. In my view, given the described number of spectators on the field, these events were occurring in a melee that threatened to go out of control. I infer from this evidence and find that in these circumstances, when the female police officer approached the Plaintiff’s sister she had good reason to be concerned not only for her own safety, but also for the safety of other police officers and crowd members. I also infer that this concern was set to heighten if the crowd became more unruly than it already was at that time.

38. An indication of the foreseeable unruliness of the crowd appears in the still photographs Exhibit “4” and Exhibit “5.8” that were taken by Mr Nolan. These photographs separately depict the Plaintiff’s husband in an apparently heated aggressive verbal and physical confrontation with a police officer. It appears that officer was Leading Senior Constable Johnstone. It is not clear as to exactly when those two photos were taken in relation to the spraying of the Plaintiff with the OC spray. I consider it is likely that they were taken after the Plaintiff had been sprayed because the Plaintiff’s husband is seen to be angrily remonstrating with Leading Senior Constable Johnstone, both verbally and physically, consistent with a level of upset and anger he would have been likely to display on learning that his wife had just been sprayed with OC spray.

39. In the course of the events which ultimately led to the Plaintiff being sprayed it is evident from the DVD footage that the Plaintiff’s sister was being held in physical restraint by Leading Senior Constable Johnstone who was holding the Plaintiff’s sister by the left arm. At the same time the Plaintiff was holding her sister in physical restraint around her neck and somewhere on her right side or right arm. The Plaintiff said she wanted to calm her sister down. In that scene, the Plaintiff’s sister is shown to be engaged in a vigorous physical struggle during which she, and those seeking to restrain her, including the Plaintiff and Leading Senior Constable Johnstone, are shown to be moving about in the course of that struggle. It is clear from the DVD that the Plaintiff’s sister was not in a calm state. Nor was she remaining still, despite the efforts of the police officer and the Plaintiff at restraining her.

40. During the course of this struggle the Plaintiff’s sister is shown to have wrested her right arm free from the grip of the Plaintiff in what appears to me to be a fluid but forceful movement of her arm. It is at this point that she is shown to have struck the female police officer on the face with a clenched fist. When the DVD footage of this scene is viewed in slow motion the female police officer is shown to have taken a forceful punch to the middle of her face in the region of the nose, upper jaw and left side of her face.

41. After being struck in the face the female police officer’s head is shown on the DVD sequence to flail in a marked lateral displacement movement to the right. When she regained her equilibrium and straightened herself, the region of her face where she had been struck appeared reddened. She also appeared to me to be lachrymose, which would be consistent with having been struck by a significant force to the nose. That analysis is corroborated by the evidence of the photographer, Mr Nolan, who observed that female police officer to be tearful after being hit.

42. It is evident that what then followed was that the female police officer stepped back, steadied herself, reached into her vest with her right hand and pulled out a can of what is not disputed to be OC spray. She then stepped forward in a semi-crouched position, reached forward whilst holding the can of spray forward, aimed it at the Plaintiff’s sister and issued forth with a stream of OC spray.

43. When sprayed in this manner the Plaintiff’s sister’s body appeared to arch backwards in an apparent state of altered consciousness or reduced control. At this time it is evident that both the male police officer, Leading Senior Constable Johnstone, and the Plaintiff, were continuing in their attempts to hold the Plaintiff’s sister in physical restraint. Leading Senior Constable Johnstone was holding the Plaintiff’s sister on her left side as she was eased down onto the ground, still struggling. At the same time the Plaintiff was holding onto her sister’s right side.

44. At this time the female police officer was shown to then straighten up from the crouched position, take her aim with the spray can and then issue forth a further stream of spray. On this occasion the stream of spray came into contact with the faces of both the Plaintiff and Leading Senior Constable Johnstone who had also been sprayed on his hands and on his face.

45. It is evident from her evidence that the Plaintiff maintains an expressed sense of grievance over her perception of the unfairness of being sprayed in this way. That sense of grievance has its origins in her feelings of injustice concerning events that have occurred earlier in her life. They may also have been influenced by the apparently encouraging comments made to her by a person she understood to be a lawyer and who had witnessed the spraying but who could not later be found and was therefore not called to give evidence. Whilst the Plaintiff’s feelings of grievance on the matter may be understandable from her own subjective perspective, my assessment is that such a view is not justified concerning the events in question. In my view her perceptions were probably distorted by her consumption of alcohol and her heightened emotional reaction to the events at the time.

46. Those heightened emotions were the undoubted exuberance and exhilaration over the game itself, the post-match euphoria, the fact of her earlier verbal altercation with the police officer in which she was told to leave the field, her concern for her sister, her shocked reaction at being sprayed with OC spray – all occurring in relatively rapid succession in the unfolding circumstances. In my view the Plaintiff’s reconstruction of the events has been influenced and distorted by these factors.

47. The photographs taken by Mr Nolan which comprise Exhibit “5.1 – 5.12” also provide a useful perspective. Exhibit “5.10” shows the female police officer positioning herself in order to spray the Plaintiff’s sister after having been punched in the face. Exhibits “5.11” and “5.12” are taken from different angles to the DVD footage and show the female police officer spraying the Plaintiff. Critically, Exhibit “5.12” shows a male police officer trying to restrain the Plaintiff from behind which in my view corroborates the evidence of Sergeant Johnstone that, by pulling on her sister the Plaintiff was hindering the police in the process of maintaining her sister in a state of arrest. This view is supported by the evidence of Mr Nolan who had previously observed that the Plaintiff was trying to pull her sister away from the police.

48. When the spray scene is variously viewed on DVD footage, both in real time and then again in slow motion, differing perspectives of the sequence of events emerges. It is evident that when the slow motion version is viewed alone it could easily mislead the viewer into gaining a wrong impression of slow, deliberative conduct concerning the female police officer’s apparent intentions because, as the real time sequence shows, the whole incident happened very quickly indeed, in the heat of the moment after the police officer had been punched in the face by the Plaintiff’s sister.

49. I have to consider the behaviour of the Plaintiff and whether, at the time, the female police officer believed, on reasonable grounds, that the Plaintiff was hindering police in the discharge of their duties. Relevantly, in this case those duties included the duty to keep the Plaintiff’s sister under arrest and the duty to clear the field of spectators. Those spectators included the Plaintiff who had, for her own reasons, previously disregarded the lawful request made by that female police officer directing that the Plaintiff leave the field. That fact is a matter that is relevant to a consideration of the nature and content of the female police officer’s belief at the time.

50. Relevantly, in this regard, obstructing or hindering police in the execution of their duties attracts the sanction of s 58 of the Crimes Act 1900 which provides:

“ 58 Assault with intent to commit a serious indictable offence on certain officers

Whosoever:


assaults any person with intent to commit a serious indictable offence, or

assaults, resists, or willfully obstructs any officer while in the execution of his or her duty , such officer being a constable, or other peace officer, custom-house officer, prison officer, sheriff’s officer, or bailiff, or any person acting in aid of such officer, or

assaults any person with intent to resist or prevent the lawful apprehension or detainer of any person for any offence,


shall be liable to imprisonment for 5 years.”

[Emphasis added]

51. Further, s 546C of the Crimes Act 1900 provides:

“ 546C Resisting etc police

Any person who resists or hinders or incites any person to assault, resist or hinder a police officer in the execution of his or her duty shall be liable on conviction before a Local Court to imprisonment for 12 months or to a fine of 10 penalty units, or both.”

[Emphasis added]

52. In my view these provisions apply to the conduct of the Plaintiff on refusing to leave the playing field after being asked to do so, as well as when the Plaintiff was pulling on her sister whilst her sister was under the restraint of police arrest.

Conclusions drawn from an evaluation of the evidence concerning the incident

53. My interpretation of the foregoing evidence, aided by viewing the DVD footage, is that against the background of Sergeant Johnstone’s evidence of a concern for his own safety and the safety of other police officers, a concern that I accept was genuinely held by him at the time, an inference arises that in the course of carrying out her duties the female police officer was also concerned about similar safety issues and was also concerned to prevent the Plaintiff from trying to unlawfully free her sister from the state of lawful arrest in which she was being held.

54. In this regard, in my view, the Plaintiff was also probably acting unlawfully by obstructing and hindering police in the execution of their duties in clearing the playing field of spectators : Regulation 16 of the Sydney Olympic Park Authority Regulation 2001; ss 58 and 546C of the Crimes Act 1900.

55. Imputing the motive of safety concern to the female police officer is supported by the evidence of Sergeant Johnstone who described the Plaintiff as apparently trying to pull her sister away whilst he was holding the sister in restraint. Mr Nolan gave evidence supporting that view. It was also consistent with the evidence of the Plaintiff who had been remonstrating with the police to be allowed to take her sister away from the scene in order to calm her down, apparently unaware that her sister had already been arrested. These events, in the context of an exuberant crowd, had the potential to go out of control.

56. Sergeant Johnstone stated that at the time these events were occurring he was in fear of being hit : T 96.17-20. I accept his evidence in this regard. I infer from his evidence and from the presence of the female officer in the near vicinity and in the same conditions, that the female police officer also held a similar apprehension. In my view this apprehension was justified in the circumstances.

57. In these circumstances, I infer that when the female police officer used OC spray on the Plaintiff, she believed, on reasonable grounds, that she and other police in the vicinity could have been assaulted by persons disobeying lawful directions. This inference arises because the Plaintiff and her sister had each already disobeyed lawful directions to leave the field. I also infer from the evidence of Sergeant Johnstone that she believed the Plaintiff was hindering police in the exercise of their duties by pulling her sister away.

58. In considering what was a reasonable response in the circumstances I have had regard to the fact that before the Plaintiff was sprayed the officer concerned had already been seriously assaulted by being punched in the face by the Plaintiff’s sister who was obviously and closely associated with the Plaintiff at the time. The circumstances required that the female police officer had to quickly take stock of the situation and make a quick decision as to how to respond to the situation to prevent an escalation where beforehand, the fact of her presence, the content of her verbal directions to the Plaintiff and her open-handed attempts at crowd control that had been directed at the Plaintiff, had proven to be insufficient for the task at hand.

59. In my view the female police officer was entitled to use the spray on the Plaintiff in the circumstances because in my analysis she believed, on reasonable grounds, that an offence was being committed by the Plaintiff, namely hindering police in the exercise of their duties in seeking to restrain the Plaintiff’s sister who was at that time already under arrest. I am also of the view that in these rapidly unfolding events the female police officer used the OC spray on the Plaintiff in self-defence, having already been struck by an associated person who had been placed under arrest. In those rapidly unfolding events, in my view, it was entirely reasonable for her to have an apprehension or fear of being struck by the Plaintiff who was the person who appeared to be unlawfully attempting to free her original assailant from lawful arrest.

60. The evidence disclosed that the Plaintiff’s sister subsequently decamped the scene and had to be later sought out at home in order to be charged. The Plaintiff’s sister was able to leave the field because, due to the evolving mood of the crowd, Sergeant Johnstone had released his hold on her in order to turn to the advancing spectators and push them away and tell them to leave the field, as Exhibit “4” tends to suggest. I infer from Exhibit “4” that at the time the events in question occurred the police officers present had escalating good reason to be fearful for their safety given the mood and numbers of the crowd.

61. The conflicting perceptions of the events as between the versions given by Sergeant Johnstone and the Plaintiff is in my view explained by the fact that the Plaintiff had consumed a quantity of alcohol in the previous 80 minutes. In my view this and the excitement of the surrounding circumstances had influenced the accuracy of the Plaintiff’s perceptions of the events. For this reason I prefer the evidence of Sergeant Johnstone. No comment arises from the fact that the female police officer was not called to give evidence of the events in question.

62. Notwithstanding that the slow motion version of the DVD footage permits a possible inference to be drawn that the female police officer acted deliberately in targeting the Plaintiff with OC spray I do not draw that inference. In my view, in the context of the surrounding circumstances of the melee that was occurring around them, the real time version shows that the female police officer sprayed the Plaintiff quickly and whilst a struggle was occurring involving the Plaintiff, her sister and Leading Senior Constable Johnstone. In my view the Plaintiff and her sister were acting unlawfully in that struggle.

63. The point of significance is that both the Plaintiff’s sister and the Plaintiff had earlier disobeyed lawful police directions to leave the field and were by this stage, to varying degrees, acting in defiance of police directions. I find that in these events, whilst the Plaintiff’s sister was still struggling and moving about whilst the Plaintiff still had hold of her, the Plaintiff was then sprayed. On the balance of probabilities I find that this occurred because the female police officer thought that the Plaintiff was acting antagonistically to lawful authority and was hindering the arrest of her sister and was otherwise obstructing police in the execution of their duties.

64. In reaching my decision in this case I am guided by what I consider to be an apt and authoritative call for caution in analysing circumstances such as these, as was stated in McIntosh v Webster (1980) 43 FLR 112 at 123 per Connor J and later approved in Woodley v Boyd [2001] NSWCA 35 at [37] per Heydon JA, namely:

“[Arrests] are frequently made in circumstances of excitement, turmoil and panic [and it is] altogether unfair to the police force as a whole to sit back in the comparative calm and leisurely atmosphere of the courtroom and these make minute retrospective criticisms of what an arresting officer might or might not have done or believed in the circumstances.”

65. I note that the decisions in McIntosh and Woodley were also followed with approval in Pringle & Ors v Everingham [2006] NSWCA 195 per Hunt AJA at [67] and Walker & Anor v Hamm & Ors [2008] VSC 596 per Smith J at [55].

66. I consider myself bound to apply these statements to the facts of this case.

Was the use of OC spray on the Plaintiff justified or was the Plaintiff assaulted

67. In my view the situation justified the female police officer using the OC spray for the second time, in this instance, spraying the Plaintiff.

68. In considering whether the spraying was justified I have had regard to parts of the evidence of Inspector Peter Davis whose statement dated 2 December 2008 was tendered as Exhibit “1.2”. He is a qualified weapons, tactics and policy instructor in the NSW Police Force. His statement set out and reviewed the minimum force protocols which the female police officer was obliged to follow on the day the events giving rise to the litigation occurred.

69. The statement of Inspector Davis explains that the use of force by a police officer in any situation must be based on an officer’s assessment of the level of resistance met, weighed against the appropriate level of force or response required to control the situation. In descending order of deployment, the elements of the policy involve first, an officer presence, secondly, communication, thirdly weaponless control, fourthly, the use of OC spray, fifthly the use of a baton and then other more escalated measures that are not necessary to here describe.

70. In considering the appropriateness of a contemplated level of response to a situation, according to these protocols, an officer must assess, amongst other things, the risk of injury both personally and to others. These are obvious commonsense measures that have to be considered by police officers in circumstances where, as in this case, judgments have to be made under pressure as distinct from being made in the course of quiet hindsight deliberation.

71. In the circumstances of this case the female police officer had already been seriously assaulted by a forceful punch to the face. This was in a situation where she was faced with the Plaintiff who had earlier resisted her reasonable request to leave the field and who was now apparently assisting an obviously associated person who was in fact her sister, to avoid the consequences of being arrested. This is evident from the DVD footage. In my view, in these circumstances the female police officer was justified in feeling she was at risk of being assaulted again, this time by the Plaintiff. I find that in such circumstances she justifiably acted in self-defence by spraying the Plaintiff in the manner she did in order to prevent such an assault from occurring.

72. In my view these circumstances provided reasonable justification for the female police officer to use OC spray on the Plaintiff in response to the circumstances with which she was confronted. At the time she used the spray, as a result of her training, she would have known of the effects of the spray when considering whether the use of the spray constituted reasonable force in the circumstances. The effects of the spray were described by Inspector Davis in the following terms:

“Oleoresin Capsicum is classed as an inflammatory agent. It is designed to be sprayed directly into the subject’s face. Generally it causes the eyelids to spasm and shut, blood vessels to dilate, bronchial tubes to constrict, mucous membranes to secrete profusely and blood to rush to the upper body, weakening the extremities. Generally the effects all occur within a maximum time frame of about two seconds; however this is not always the case. The content substance is biodegradable and leaves no long lasting residue. The effects generally last between thirty to forty five minutes. The degree of the effects listed above can vary depending on the percentage of the spray that contacts the subject’s eyes, nose and mouth area.”

73. In my view the circumstances in which the female police officer found herself reasonably justified in employing the level of response that called for the use of OC spray both for self-defence and the defence of other officers as well as also preventing the Plaintiff from further hindering the police in the discharge of their duties. In my view this non-lethal level of response was not disproportionate to the circumstances and the threats posed. In my view this response was in conformity with the requirements of the police service handbook.

74. In coming to my view on the appropriateness of the response of the female police officer I have not relied upon the opinion portions of the statement of Inspector Davis. I have taken this course not because I consider his opinion to be unreliable or inadmissible, but only because in the particular circumstances of this case the female police officer was not called to give evidence on account of her unfitness. Her statement was not tendered in evidence but Inspector Davis had based his opinion on that statement. These circumstances therefore necessarily limited the use that could be made of his opinion in this case : Makita Australia Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705. In these circumstances, instead I have only relied upon those sections of the report of Inspector Davis that dealt with the descriptions of the applicable protocols for the use of OC spray rather than his views on the application of those protocols to the circumstances of this case.

Liability conclusions

75. In my opinion there is no proper legal basis upon which the Plaintiff’s claim, framed as it is in assault, or even battery for that matter, could succeed.

76. In view of my conclusion that the spraying of the Plaintiff’s sister and the Plaintiff was as a result of what I find was a reasonable apprehension of danger on the part of the female police officer, I find there was no intention to unlawfully assault or harm the Plaintiff. Therefore there was no actionable assault.

77. I find that the actions of the female police officer in using OC spray were justified both on grounds of self-defence and in order to prevent further hindrance of police in the discharge of their duties.

78. In my view the female police officer was merely doing her job under very difficult circumstances where immediately beforehand she had been seriously assaulted by a member of the crowd in the immediate vicinity, namely the Plaintiff’s sister. In these circumstances I find she had a reasonable apprehension that she was at risk of being assaulted again. This earlier assault and the attempts by the Plaintiff to free her sister from restraint justified the use of OC spray in the circumstances. I find that the use of OC spray was in accordance with the protocol for its use and was therefore reasonable and not disproportionate.

79. As I have found that the Plaintiff was not unlawfully assaulted there is no need for me to engage with or consider the application of Part 7 of the Civil Liability Act 2005 ss 52-54.

80. I therefore find that the Plaintiff has not established a case for damages for assault.

Notional assessment of damages

81. Notwithstanding that I have found for the Defendant I must nevertheless turn to an assessment of the Plaintiff’s notional entitlement to damages in accordance with the convention that I do so to allow for the possibility that on a successful appeal my liability conclusions may ultimately be shown to be incorrect. The Plaintiff has claimed compensatory, exemplary and aggravated damages.

Compensatory damages

82. To allow for the possibility that my liability conclusions may ultimately be shown to be wrong I approach the task of notionally assessing compensatory damages or general damages for pain and suffering according to conventional common law principles for the assessment of damages. The Plaintiff is unable to prove that she has incurred any out of pocket expenses. Neither has she been shown to have suffered any form of economic loss. Insofar as the loss of amenity of life is concerned, other than a relatively short period of discomfort and a resultant feeling of anger and a sense of disempowerment and grievance, the evidence does not show that the incident had any lasting physical or emotional effect on her. I have come to this view on a consideration of the evidence of the consultant psychiatrists whose reports have been tendered.

83. In this regard, my view is that the opinion of Dr Robertson has been prepared on the basis of an incorrect history. That circumstance is not a criticism of Dr Robertson. I prefer and accept the opinions of Dr Brown in this regard as set out in her report. I take this view because I consider her opinion to be based on a more accurate factual summary of the Plaintiff’s situation. In these circumstances I believe that an award of $10,000 for general damages would be appropriate. Had the Plaintiff’s claim succeeded I would have assessed general compensatory damages in the sum of $10,000.

Exemplary damages

84. The Plaintiff has not been able to show that the police officer acted with contumelious disregard to the Plaintiff’s rights. The police officer was carrying out her duties in difficult circumstances and the spraying occurred quite rapidly, in response to a strong punch delivered by the Plaintiff’s sister who was nearby and where the police officer was being hindered in the execution of her duties. Those events occurred in a rapid continuum. The Plaintiff had already been asked to leave the playing field and thereafter had remained on the playing field unlawfully contrary to that request. Accordingly, in my view, no exemplary damages are awardable in those circumstances.

85. At worst, the conduct of the police officer could be characterised as an error of judgment that was made in the heat of a violent event, but that is not my finding. In my view an award of exemplary damages is not called for in the circumstances. However, if my conclusion in this regard is shown to be erroneous, and if it is ultimately assessed that the female police officer had in fact acted with contumelious disregard of the Plaintiff’s rights, I consider that in those circumstances an appropriate award of exemplary damages would have been of the order of $5,000.

Aggravated damages

86. Consistent with my finding that the Plaintiff is not entitled to an award of exemplary damages I find that she is not entitled to an award of aggravated damages. In my assessment there were no aggravating features that would call for an award of aggravated damages. If my conclusion in this regard is ultimately shown to be erroneous and if it is assessed that the Plaintiff was sprayed with the deliberate intention to cause her to suffer harm then such conduct would in my view call for censure. Aggravated damages are also compensatory in nature so care must be taken not to double up on an award of general compensatory damages. On that assumption I would have awarded the sum of $5,000 for aggravated damages.

Orders

87. I make the following orders:-

(a) Verdict and judgment for the Defendant.
(b) Plaintiff to pay the Defendant’s costs.
(c) The exhibits may be returned;
(d) Liberty to apply on 7 days’ notice if further orders are required.