Cavanagh v Dilena - [2016] SASC 68

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
CAVANAGH v DILENA & ANOR
[2016] SASC 68
Judgment of The Honourable Justice Kelly
18 May 2016
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - FINDINGS ON ISSUE OF NEGLIGENCE - GENERALLY
PROCEDURE - PARTIES AND REPRESENTATION - LEGAL REPRESENTATION - GENERALLY
EVIDENCE - ADDUCING EVIDENCE - COURSE OF EVIDENCE - GENERALLY
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - GENERALLY
Appeal against dismissal of claim for damages. The appellant issued civil proceedings in the Magistrates Court against the first respondent, a police officer, and the State of South Australia claiming damages for injuries said to have been caused to the appellant when he was handcuffed in the course of an arrest and during a subsequent search of his property in 2008. The appellant’s claim was formulated in common law negligence and in the alternative, for breach of statutory duties. The appellant was self-represented at trial.
The Magistrate dismissed the claim. The appellant appeals on five grounds related to the Magistrate’s findings and the conduct of the trial.
Whether the Magistrate’s findings as to causation of the appellant’s injuries were open on the evidence. Whether the appellant was allowed to present evidence to support his case at trial.
Held (dismissing the appeal):
1. The appellant was given every opportunity to present his case. The Magistrate provided the necessary and appropriate assistance to an unrepresented litigant consistent with the obligation of every judicial officer presiding at a trial where one party is represented and the other party is not.
2. The findings made by the Magistrate were open on the evidence. The appellant has demonstrated no error in the approach of the Magistrate to the facts or the law which would justify the intervention of this Court.
Police Regulations 1999 (SA) reg 16(a); Magistrates Court Act 1991 (SA) s 40; Supreme Court Civil Rules 2006 (SA) r 288, referred to.

CAVANAGH v DILENA & ANOR
[2016] SASC 68
Magistrates Appeal: Civil
KELLY J.
Introduction

The appellant, David Alan Cavanagh, issued civil proceedings in the Magistrates Court on 30 March 2011 claiming damages against the respondents, Brevet Sergeant Edward Dilena and the State of South Australia.
The claim arose out of events which occurred on 31 March 2008 when the first respondent, Brevet Sergeant Dilena, and other members of the South Australian Police (SAPOL) went to his home at Wasleys and arrested him for an alleged assault upon his brother. During the course of that arrest and during a subsequent search of his house and property the appellant was handcuffed. The appellant’s claim was that the handcuffs applied were too tight and as a result he sustained an ongoing injury to both of his wrists and his left shoulder. The appellant also claimed that he was assaulted during the arrest.
The appellant’s claim proceeded to trial. That trial proceeded over 11 days and regrettably over the course of about 10 months. The fact that the appellant was unrepresented was a significant factor in the trial proceeding as it did. The Magistrate delivered a judgment dismissing the appellant’s claim on 29 October 2015.
The appellant now appeals to this Court on five grounds articulated as follows:
1.   I was not given the [opportunity] to submit the evidence to support my case. The magistrate ruling it was not the right time throughout the trial.
2.   Contrary to the magistrates decision, bruising and torn ligaments are not conditions of a degenerative condition but are the results of trauma ie. assault.
3.   Problems operating the DVD player resulted in most of my evidence not being shown.
4.   Not allowed to demonstrate the position of handcuffs on my wrists.
5.   Not given previous magistrates decisions given by the defence.
This is an appeal as of right to a single Judge of this Court pursuant to s 40 of the Magistrates Court Act 1991 (SA) and rule 288 of the Supreme Court Civil Rules 2006. It is an appeal by way of rehearing and this Court has all of the powers of the Court on a rehearing.
Before I turn to deal with the issues which arise on this appeal it is necessary to set out some of the background and history of this matter.
Background
The appellant’s claim was formulated in common law negligence and in the alternative for breach of statutory duties said to flow from reg 16(a) of the Police Regulations 1999 (SA).
The second respondent, the State of South Australia, was joined on the basis that it was vicariously liable for any negligence or breach of statutory duty of care on the part of the first respondent.
Although the appellant was represented when the pleadings were drafted and until five days before the trial commenced, he was not legally represented throughout the course of the trial in the Magistrates Court. The appellant did not at any stage during the trial seek an adjournment to enable him to obtain legal representation.
The appellant gave evidence on his own case and also called evidence from a number of expert witnesses including general practitioners Dr Barry Darlington and Dr Lewis Jeffries, orthopaedic surgeons Professor Jeganath Krishnan and Dr Peter Lewis, rehabilitation physician Dr Garry Clothier, and occupational therapist Ms Suzanne Caragianis. The respondents called evidence including from the first respondent, retired police sergeant Mr Eric Munday, Senior Sergeant Martin Bazeley, Brevet Sergeant David Byrne, Senior Constable Alan Hayter, general practitioner Dr Jaswinder Kaur and plastic and reconstructive surgeon Dr Robert Morgan.
There were numerous exhibits tendered throughout the trial including, importantly for the purpose of this appeal, video footage obtained from a CCTV camera at the appellant’s property on the relevant date when the police arrested the appellant. The exhibits also included police video footage of the appellant’s arrest at the property, SAPOL’s search of the property and the appellant’s transfer to a police vehicle, and later proceedings at the Nuriootpa Police Station.
On 29 October 2015 the Magistrate delivered judgment dismissing the appellant’s claim against the respondents.
The Magistrate’s findings
The Magistrate gave detailed and comprehensive reasons for dismissing the appellant’s claim. In addition to the evidence of the lay witnesses, the Magistrate also had the benefit of the expert medical evidence, none of which was disputed by either party.
Some of the important factual findings made by her Honour were as follows:
●It was reasonable for handcuffs to be applied to the appellant upon his arrest and for him to remain handcuffed during the search and the journey back to the Nuriootpa Police Station. The appellant did complain of the handcuffs being too tight shortly after they were applied.
●Police officers in attendance on the arrest of the appellant checked the handcuffs at least twice following their application.
●The handcuffs were not applied too tightly and although the appellant’s evidence was that he was in discomfort, the method of application was not inappropriate.
●The appellant did not sustain any left shoulder injury as a result of travelling in the police car while handcuffed.
●The force used by the police in arresting the appellant was not excessive or unreasonable.
In relation to the issue of causation in respect of the claimed injuries the Magistrate:
●Accepted the evidence of all the medical experts that the appellant had, at some time, suffered a scapholunate ligament tear with a full thickness tear involving the scaphoid attachment at the volar portion associated with a ganglion cyst on his right wrist.
●Accepted the evidence of all the medical experts that the appellant’s left wrist showed previous damage to the scapholunate ligament with interosseous change of the proximal poled of the scaphoid as well as the lunate.
●Found that any injury suffered by the appellant to his wrists on 31 March 2008 as a result of the application of handcuffs was confined to some redness and swelling of each wrist together with some numbness and pins and needles in the left thumb. The state of the appellant’s wrists as revealed by the medical evidence was neither caused nor contributed to by the handcuffing incident.
●Found that nothing which happened on the date of the appellant’s arrest and which was the subject of the claim caused or contributed to the appellant’s left shoulder bursitis.
The appellant was unrepresented on the hearing of this appeal. For this reason considerable latitude was extended to him in the manner of presentation of his arguments on appeal. This included allowing the appellant to comment on each still photograph taken from the video footage of his arrest which the appellant sought to and did tender on appeal. It also extended to permitting the appellant to demonstrate, as he had wished to do before the Magistrate, how he said the handcuffs were placed on his wrists and the restriction he claimed it caused.
Against that background I turn now to consider each of the appeal grounds filed by the appellant.
Ground 1: The appellant was not given the opportunity to submit evidence to support his case
The appellant’s main complaints under this ground of appeal are that he was not given the opportunity to tender documents and photographs he believed were relevant to his case at trial.
I have read the entire trial transcript of the hearing which extended to over 850 pages and viewed the many exhibits tendered.
It is apparent from the record of the trial that many of the documents which the appellant claims he was not able to tender were in fact tendered. For example, it appears that the appellant was under the misapprehension that the Medicare records and the pharmacy records had not been tendered when in fact they were. It also appears from the transcript that in some instances when the matter was first raised and the appellant sought to tender something, that tender was not accepted at that time but later, once the records had been properly authenticated the exhibit was received and tendered. One clear example of when that occurred was in relation to the medical records.
Another of the appellant’s complaints was in relation to the non-tender of still photographs which he had taken from the video footage of his arrest. It does appear from the trial transcript that he showed some of those photographs in his closing address. Additionally, although the Magistrate did not view the entirety of the video footage from which those photographs were extracted in the appellant’s presence during the trial, it is plain from her reasons that she did view that footage later in chambers. She said at [26]:
I did not view the entirety of either the CCTV footage or the SAPOL tapes during the course of the trial, although I did view certain portions of that material. I have subsequently watched both the CCTV footage and the SAPOL tapes, pausing and replaying certain aspects of that footage insofar as I considered it to be relevant.
Having viewed a substantial portion of the video footage myself I am not surprised that the Magistrate chose not to view the entirety of the video footage during the course of the trial. It is apparent that there are many, indeed far too many, long pauses in that video footage where nothing happens during the search of the appellant’s house and where the appellant is either seated or waiting for the police to complete the search in another part of the property. I also received 59 still photographs taken from the footage that primarily depict the appellant’s handcuffed hands and wrists, and allowed the appellant to make submissions about each of those photographs. Many of those photographs are repetitious and do not add to the vision seen on the SAPOL footage.
I am satisfied that the appellant was given every opportunity to present his case. I have previously referred to the length of time this trial took to complete, between 4 September 2014 and 8 July 2015. In total there were 11 separate sitting days punctuated by lengthy adjournments, most of which were necessary to afford the appellant sufficient time to prepare for different facets of the trial as they arose, or when he was otherwise unprepared, and to allow him to have adjournments to arrange his witnesses and other documentary evidence.
I am satisfied from my perusal of the transcript that the Magistrate provided the necessary and appropriate assistance to an unrepresented litigant consistent with the obligation of every judicial officer presiding at a trial where one party is represented and the other party is not. Numerous examples of such conduct by the Magistrate were revealed in the transcript.
The transcript also reveals that another of the appellant’s main complaints on appeal, namely that he was not permitted the opportunity to question Brevet Sergeant Dilena as to why he was biased against him, is a complaint without substance. It is obvious that the appellant did ask questions of Brevet Sergeant Dilena and later made statements to the Magistrate about Brevet Sergeant Dilena’s motives in arresting him and also concerning the appellant’s previous dealings with Brevet Sergeant Dilena over complaints concerning a neighbour.
For these reasons I am satisfied that there is no substance in this ground of appeal.
Ground 2: Contrary to the Magistrate’s decision, bruising and torn ligaments are not conditions of a degenerative condition but are the results of trauma
The appellant’s main complaint in relation to this ground is that the Magistrate’s findings as to causation of his injuries were not open on the evidence.
With regard to the bruising to his torso, the Magistrate found that those bruises were caused when the first respondent put his knee into the appellant’s back while he was on the ground in order to apply the handcuffs, and that this occurred in the process of the first respondent deploying reasonable force to effect a lawful arrest. The appellant has not pointed to any error in the Magistrate’s reasoning to this conclusion.
The focus of this ground of appeal appears to be injuries to the appellant’s wrists, however he seems to have conflated the issue of the bruising on his wrists with the issue of the torn ligaments. It was argued by the appellant at the hearing of this appeal that the Magistrate had erred by finding that bruising to his wrists was degenerative, however it is plain from her Honour’s reasons that she found that the ligament damage in the appellant’s wrists, not any bruising, was degenerative.
In relation to the issue of the ligament damage, the Magistrate found that the appellant did suffer a torn ligament in the right wrist and torn cartilage in the left wrist and then went on to consider whether the changes in his wrists were caused by the application of handcuffs as the appellant contended.
In the end, the Magistrate accepted the expert evidence of two orthopaedic surgeons called by the appellant, Professor Krishnan and Dr Lewis. Dr Lewis was, in fact, the appellant’s treating orthopaedic surgeon. Neither expert supported the proposition that the application of handcuffs could have caused the appellants wrist conditions. There was no medical evidence presented at the trial which supported the submission that the wrist conditions were caused by the application of handcuffs on the relevant date.
The Magistrate’s reasoning as to why she accepted the evidence of the experts is extensive, thorough, and cogent. Contrary to the appellant’s submissions, the findings of the Magistrate are wholly unexceptional and consistent with the undisputed medical evidence which she accepted. There is no substance to this ground of appeal.
Ground 3: Problems operating the DVD player resulted in most of my evidence not being shown
This ground of appeal is closely related to the first ground of appeal that the appellant did not have the opportunity to submit all of the evidence he wished.
It appears from the record that the DVD player was working and in use throughout the trial. The appellant’s CCTV footage was tendered. Separate video footage taken by SAPOL of the search of the house was also tendered and the appellant cross-examined the first respondent and the respondents’ witnesses about this footage.
Before retiring to view the entire video footage in her chambers the Magistrate advised the appellant that he was able to point out key portions of the video footage and submit to her why it was significant.
In any event, on the hearing of this appeal I have had the benefit again of viewing the video footage and the still photographs taken from that footage and tendered separately on appeal. There is nothing which I have viewed which causes me to have any concern that the Magistrate may have overlooked or missed any important aspect of the evidence or any submission made to her by the appellant about that footage.
This ground of appeal is dismissed.
Ground 4: The appellant was not allowed to demonstrate the position of handcuffs on his wrists
During the course of his closing address at trial the appellant sought to demonstrate how he said the handcuffs were applied to him. It was said that the purpose of this demonstration was to allow a comparison of the number of notches visible outside of the handcuff’s ratchet mechanism which indicates how tightly the handcuffs were closed, with the visible notches on the video footage. The Magistrate ruled she would not allow such a demonstration because the best evidence was in the form of the tendered video footage of the actual handcuffs on the appellant’s wrists which were the subject of his claim, and secondly that the appellant had already given oral evidence that the handcuffs as applied were too tight and caused him pain. In the Magistrate’s view any demonstration by the appellant was of little or no evidentiary value and in any event the Magistrate was not confident that the size of the appellant’s wrists was sufficiently similar some six years after the incident as to make the demonstration reliable.
During the hearing of argument on appeal I permitted the appellant to carry out a demonstration with the handcuffs that had been tendered at the trial. It was the same demonstration that he sought to make during the trial.
Having now had the benefit of the appellant’s demonstration I am satisfied that, even had the Magistrate permitted the appellant to perform that demonstration during the trial, her decision would not have been different. This is especially so given that, as counsel for the respondents pointed out during the demonstration, even when the handcuffs were applied to the extent of seven notches that I counted were visible in the still photographs tendered by the appellant on the appeal, it was still possible to see space between the handcuff and the appellant’s wrist during the demonstration.
In reaching this conclusion I have not overlooked that the Magistrate found, in any event, that the handcuffing of the appellant did cause redness and swelling, and to some degree accepted the appellant’s submissions that the handcuffs did cause significant discomfort. Nevertheless the Magistrate was correct to conclude that the best evidence of the manner in which the handcuffs were applied was to be seen on the SAPOL video footage.

For these reasons I consider that the Magistrate’s ruling refusing to allow the appellant to carry out a demonstration was not made in error. It was a decision that was open to the Magistrate in the exercise of her discretion and given the abundance of real evidence in real time about the appellant’s arrest the ruling is unremarkable. There is no substance in this ground of appeal.
Ground 5: The appellant was not given previous Magistrate’s decisions by the defence
This ground of appeal appears to relate to an earlier matter involving the appellant and previous decisions of Magistrates Harrap and Fahey. The sole purpose of the introduction of the decision of Magistrate Harrap was for the purpose of impugning the appellant’s credit in cross-examination. The decision of Magistrate Fahey was ex tempore and delivered in the appellant’s presence in those proceedings.
It would appear again that this ground of appeal is based on a misconception that the prior decision of Magistrate Harrap was used by the Magistrate for an impermissible purpose. In any event during the hearing of this appeal the appellant abandoned this ground.
Conclusion
I have considered all of the evidence presented at trial together with the additional material the appellant sought to tender on appeal. I am satisfied that the findings made by the Magistrate were open on the evidence. The appellant has demonstrated no error in the approach of the Magistrate to the facts or the law which would justify the intervention of this Court.
The appeal is dismissed.