Cunningham v Traynor - [2016] WADC 168

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: CUNNINGHAM -v- TRAYNOR [2016] WADC 168

CORAM: DAVIS DCJ

HEARD: 16 - 27 NOVEMBER 2015 & 8 - 17 MARCH 2016

DELIVERED : 9 DECEMBER 2016

FILE NO/S: CIV 3389 of 2011

BETWEEN: ROBERT LEE CUNNINGHAM
First Plaintiff
CATHERINE MARY ATOMS
Second Plaintiff
AND
SIMON TRAYNOR
First Defendant
PETER JAMES CLARK
Second Defendant
GLENN ALEXANDER CALDWELL
Third Defendant
THE STATE OF WESTERN AUSTRALIA
Fourth Defendant

Catchwords:

Tort – Battery – Misfeasance in public office – False imprisonment – Malicious prosecution – Assessment of damages – Aggravated damages – Exemplary damages - Turns on own facts

Legislation:

Civil Liability Act 2002 s 3A, s 10A
Criminal Code s 1, s 74A, s 172, s 231, s 260
Criminal Investigation Act 2006 (WA) s 16, s 27, s 128, s 128(3)
Police Act 1892 (WA) s 137

Result:

Judgment for the plaintiffs against all defendants
Second defendant's counterclaim dismissed
First plaintiff's damages assessed at $110,304.10
Second plaintiff's damages assessed at $1,024,822.11

Representation:

Counsel:

First Plaintiff                  :     Mr M D Cuerden SC and Mr T J Porter
Second Plaintiff             :     Mr M D Cuerden SC and Mr T J Porter
First Defendant              :     Ms K A Vernon
Second Defendant         :     Ms K A Vernon
Third Defendant            :     Ms K A Vernon
Fourth Defendant           :     Mr D J Matthews

Solicitors:

First Plaintiff                  :     Maurice Blackburn
Second Plaintiff             :     Maurice Blackburn
First Defendant              :     Metaxas & Hager
Second Defendant         :     Metaxas & Hager
Third Defendant            :     Metaxas & Hager
Fourth Defendant           :     State Solicitor for Western Australia

Case(s) referred to in judgment(s):

A v New South Wales (2007) 230 CLR 500
Adams v Kennedy [2000] NSWCA 152; (2000) 49 NSWLR 78
Ashley v Balchin (2006) 161 A Crim R 497
Beckett v New South Wales [2013] HCA 17; (2013) 248 CLR 432
Beer v Duracraft Pty Ltd [2004] WASCA 192
Bell Group Ltd (in liq) v Westpac Banking Corp (No 9) [2008] WASC 239; (2008) 225 FLR 1
Briginshaw v Briginshaw (1938) 60 CLR 336
Brocx v Mounsey [2010] WASCA 196
Bulsey v Queensland [2015] QCA 187
Calabro v The State of Western Australia [2012] WASC 418
Calabro v The State of Western Australia [No 3] [2014] WASC 84
Carmichael v McGowan [1967] WAR 11
Carter v Walker [2010] VSCA 340; (2010) 32 VR 1
Claremont Petroleum v Cummings (1992) 110 ALR 239
Cox v Robinson [2000] QCA 454; [2001] 2 Qd R 261
Darcy v New South Wales [2011] NSWCA 413
Duvall v Godfrey Virtue & Co (a firm) [2001] WASCA 163
E (A Child) v Staats (1994) 13 WAR 1
Elwin v Robinson [2014] WASCA 46
Farrington v Thomson [1959] VR 286
Fazio v Fazio [2012] WASCA 72
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
George v Rockett (1990) 93 ALR 483
Hayward‑Jackson v Walshaw [2012] WASC 107
Heanes v Herangi [2007] WASC 175; (2007) 175 A Crim R 175
Hewett v Medical Board of Western Australia [2004] WASCA 170
Houda v New South Wales [2005] NSWSC 1053; (2005) Aust Torts Rep 81-816
Innes v Weate [1984] Tas R 14; 12 A Crim R 45
Ives v The State of Western Australia [2010] WASC 178
Johnson v Staskos [2015] WASCA 32
Jones v Dunkel (1959) 101 CLR 298
Kerr v Minister for Health [2009] WASCA 32
King v Connor (Unreported, WASC, Library No 960444, 14 August 1996)
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361
Lamb v Cotogno (1987) 164 CLR 1
Lancee v Willert [2008] WASCA 120
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
Luetich v Walton [1960] WAR 109
Majindi v Northern Territory of Australia [2012] NTSC 25
Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638
McDonald v Coles Myer Ltd (1995) Aust Torts Report 81-361
McFadzean v Construction, Forestry, Mining & Energy Union [2007] VSCA 289; (2007) 20 VR 250
Medlin v State Government Insurance Commission (1995) 182 CLR 116
Melser v Police [1967] NZLR 437
Mogridge v Foster [1999] WASCA 177
Montemaggiori v Wilson [2011] WASCA 177
Mustac v Medical Board of Western Australia [2007] WASCA 128
Myer Stores Ltd v Soo [1991] 2 VR 597
Neat Holdings Pty Ltd v Karajan Holdings [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449
New South Wales v Delly [2007] NSWCA 303
New South Wales v Koumdjiev [2005] NSWCA 247; (2005) 63 NSWLR 353
New South Wales v Williamson [2011] NSWCA 183
New South Wales v Zreika [2012] NSWCA 37
Northern Territory of Australia v Mengel [1995] HCA 65; (1995) 185 CLR 307
Noye v Robbins [2010] WASCA 83
Nye v The State of New South Wales [2003] NSWSC 1212
Payne v Parker [1976] 1 NSWLR 191
Pollock v Wellington (1996) 15 WAR 1
Purkess v Crittenden (1965) 114 CLR 164
R v Heaney [1992] 2 VR 531
R v Howell [1982] QB 416
R v Skinner (1994) 99 Cr App R 212
Rice v Connolly [1966] 2 QB 414
Romito v Williams (Unreported, WASC, Library No 920649, 4 December 1992)
Savile v Roberts (1698) 1 Ld Raym 374; (1698) 91 ER 1147
Shorey v PT Ltd (2003) 77 ALJR 1104; (2003) 197 ALR 410
Shum Yip Properties Development Ltd v Chatswood Investment and Development Co Pty Ltd (2002) 40 ACSR 619
State of New South Wales v Abed [2014] NSWCA 419; (2014) 246 A Crim R 549
State of New South Wales v Ibbett [2006] HCA 57; (2006) 229 CLR 638
State of New South Wales v Quirk [2012] NSWCA 216
State of New South Wales v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496
State of Victoria v McIver (2005) 11 VR 458
Stohl Aviation v Electrum Finance Pty Ltd (1984) 5 FCR 187
Tomarchio v Pocock [2002] WASCA 156
Tradesman Technologies Pty Ltd v Ameduri [No 2] [2013] WASCA 252
Transfield Services (Australia) Pty Ltd v Wieland [2014] WASCA 41
Trobridge v Hardy (1955) 94 CLR 147
Undershaft (No 1) Ltd v Commissioner of Taxation [2009] FCA 41; (2009) 175 FCR 150
Van der Velde v Halloran [2011] WASCA 252
Walsh v Loughnan [1991] 2 VR 351
Walter v Alltools Ltd (1944) 61 TLR 39
Watson v Foxman (1995) 49 NSWLR 315
Watson v Marshall & Cade (1971) 124 CLR 621
Watts v Rake (1960) 108 CLR 158
Weir v Tomkinson [2001] WASCA 77
West v Government Insurance Office of New South Wales (1981) 148 CLR 62
Williams v Smith [1960] HCA 22; (1960) 103 CLR 539
Woodley v Boyd [2001] NSWCA 35
Young v Cooke [2013] NSWCA 79
Young v New South Wales; Young v Young (No 2) [2013] NSWSC 330

Table of Contents

PART ONE - THE BACKGROUND TO THE CLAIMS AND THE MATTERS IN DISPUTE

PART TWO - THE LAW AND ISSUES ON LIABLITY

'Move on' notices
Police powers of arrest
What is a reasonable suspicion
Police use of force
The offence of disorderly behaviour
The offence of obstructing a public officer
The tort of battery
The tort of false imprisonment
Misfeasance in public office
The meaning of 'malice' in the Police Act s 137
Malicious prosecution
The standard of proof
The issues relating to liability in this case

PART THREE - EVIDENTIARY MATTERS

General evidentiary matters
The CCTV footage taken outside the Esplanade Hotel (the CCTV footage)
The footage from the Fremantle police station ('the lock‑up footage')
The 'missing' camera footage
Preliminary observations on Ms Atoms' credibility
Cross-examination on the pleadings
Preliminary observations on the Dr Cunningham's credibility
Preliminary observations on Officer Traynor's credibility
Preliminary observations on Officer Clark's credibility
Preliminary observations on Mr Caldwell's credibility
Jones v Dunkel submission by the defendants

PART FOUR - FINDINGS ON ISSUES RELATING TO LIABILITY

1. What happened before Ms Atoms was grabbed by Officer Traynor?

Ms Atoms' evidence
Dr Cunningham's evidence
Officer Traynor's evidence
Officer Clark's evidence
Discussion
Findings

2. Was Ms Atoms' detention lawful?
3. What happened before the arrest of Dr Cunningham?

Ms Atoms' evidence
Dr Cunningham's evidence
Officer Traynor's evidence
Officer Clark's evidence
Discussion
Findings

4. Was the arrest of Dr Cunningham lawful?
5. Was there an excessive use of force by Officers Traynor and Clark against Dr Cunningham?

Ms Atoms' evidence
Dr Cunningham's evidence
Officer Traynor's evidence
Officer Clark's evidence
Discussion and findings

6. Why did Officer Clark push Ms Atoms and was this justified?
7. Was there any justification for tasering Ms Atoms?

Ms Atoms' evidence
Dr Cunningham's evidence
Officer Traynor's evidence
Officer Clark's evidence
Mr Caldwell's evidence
Other police officers' evidence
Discussion
Findings

8. Was Ms Atoms' arrest lawful?
9. Was there any justification for tasering Dr Cunningham?

Dr Cunningham's evidence
Officer Traynor's evidence
Officer Clark's evidence
Mr Caldwell's evidence
Discussion and findings

10. How were Ms Atoms and Dr Cunningham handled after their tasering until the time they were placed in the police van?

Ms Atoms' evidence
Dr Cunningham's evidence
Officer Traynor's evidence
Officer Clark's evidence
Mr Caldwell's evidence
Discussion and findings

11. and 12. Was the imprisonment of Ms Atoms or Dr Cunningham at any time until released at the police station lawful, and therefore justified?
13. Was any of the conduct of the first, second or third defendants malicious?

Officer Traynor's dealings with Ms Atoms
Officer Traynor's and Clark's dealings with Dr Cunningham
Mr Caldwell's tasering of the plaintiffs
Further observations

14. Was the prosecution of both Ms Atoms and Dr Cunningham malicious?

PART FIVE - CONCLUSIONS ON LIABILITY

PART SIX - THE LAW AND ISSUES ON DAMAGES

General principles
The issues relating to the claim for damages in this case

PART SEVEN - THE FIRST PLAINTIFF'S DAMAGES

Did Dr Cunningham suffer from PTSD?
Causation - other contributors to Dr Cunningham's mental condition
Causation - contribution between defendants
General damages
Aggravated damages
Exemplary damages
Special damages
Summary of Dr Cunningham's damage

PART EIGHT - THE SECOND PLAINTIFF'S DAMAGES

Causation - Ms Atoms' back injury
Causation - Ms Atoms' mental condition

General damages

Aggravated and exemplary damages
Special damages
Loss of earning capacity

Past loss of earning capacity

Future loss of earning capacity
Summary of Ms Atoms damages

PART TEN - THE SECOND DEFENDANT'S COUNTERCLAIM

DAVIS J: In the early hours of the morning of 2 November 2008 outside the Esplanade Hotel in Fremantle, the plaintiffs, Ms Atoms and Dr Cunningham, were detained by the police, tasered, arrested and taken to the Fremantle Police Station. They were then charged with the offence of obstructing a public officer in the performance of the officer's functions contrary to s 172(2) of the Criminal Code. The charge against each plaintiff was dismissed after a trial in the Magistrates Court in April 2010.
In 2011 the plaintiffs commenced these proceedings as a result of the conduct of police officers on 2 November 2008 and subsequently. Arising from the plaintiffs' detention, arrest and tasering, they have claimed damages for battery and misfeasance in public office from the first three defendants (to whom I shall refer as Officer Traynor, Officer Clark and Mr Caldwell, as he has since retired from the WA Police). The plaintiffs also claim damages against the second defendant, Officer Clark, for malicious prosecution of the criminal charges, as he was the investigating officer who initiated and maintained the charges. The plaintiffs' claim against the fourth defendant, the State of Western Australia, is for damages for battery and false imprisonment.
All defendants deny liability, claiming that all police officers acted lawfully and fairly. Officer Clark has also counterclaimed for damages on the basis of two alleged assaults and battery by Ms Atoms on him.
For the reasons which are set out in this judgment, I am satisfied that all of the defendants are liable to the plaintiffs for damages. I dismiss the second defendant's (Officer Clark's) counterclaim.
As a result of the actions of the police, I am also satisfied that the second plaintiff, Ms Atoms, suffered a back injury and that both plaintiffs have suffered Post‑Traumatic Stress Disorder ('PTSD'). Ms Atoms is, in my view, mentally fragile. Because of this there are some particular parts of these reasons for judgment which I have suppressed, dealing with those matters in a separate Schedule to these reasons, with publication of the Schedule limited to the parties and their legal advisers. I have also set out in the Schedule discussions and findings concerning other matters which I suppressed during the trial on the application of the parties.
These reasons are in nine parts:
1.Part One deals with the background to the claims, setting out a chronology of some of the facts which are not in dispute, and identifying the matters which are in dispute.
2.Part Two deals with the law and the issues relevant to liability in this case.
3.Part Three will deal with some general matters relating to the evidence, including findings I have made following my review of the CCTV footage from the Esplanade Hotel, footage from the lock‑up at the Fremantle police station, and my general observations on the credibility of the parties.
4.Part Four will deal with my findings on issues relevant to liability.
5.Part Five will deal with my conclusions on liability, having regard to the pleaded claims by the plaintiffs.
6.Part Six will deal with the law and issues relevant to damages.
7.Part Seven will deal with the assessment of damages for the first plaintiff, Dr Cunningham.
8.Part Eight will deal with the assessment of damages for the second plaintiff, Ms Atoms.
10.Part Nine will deal with the second defendant's counterclaim, including my provisional assessment of his damages.

PART ONE - THE BACKGROUND TO THE CLAIMS AND THE MATTERS IN DISPUTE

The following summary is based on the evidence at trial, including documentary evidence, which is not in dispute. Where matters are in dispute, I have noted these.
As at 1 November 2008, Dr Cunningham, then aged 31, and Ms Atoms, then aged 37, were engaged. (They married in October 2013.)
Dr Cunningham is a lawyer, originally from NSW and he is now an associate professor of law at the University of Western Australia (UWA). He took up a position lecturing at the law school (Faculty of Law) at UWA in 2008.
Ms Atoms also came from NSW. In 2000 she obtained a Bachelor of Applied Science in leisure and health from the University of Sydney. She had, however, an interest in sustainability, having worked as a community engagement consultant in NSW for Sustainable Futures Australia. She worked there from 2003 until the end of 2007.
In January 2008 the plaintiffs came to Perth following Dr Cunningham's appointment at UWA. After finding a house in the Fremantle area, Dr Cunningham remained here while Ms Atoms returned to NSW to pack and make other arrangements, and also to visit her family, before moving permanently to WA to be with Dr Cunningham in about May 2008.
Ms Atoms enrolled in a sustainability development course at Murdoch University, and also obtained employment there, doing research for six months, then some guest lecturing and tutoring. Just before the night of 1 November 2008, Ms Atoms had an offer of employment as a community engagement officer at the Water Corporation and she was booked to undergo a drug and alcohol test for the purpose of that job, on 3 November 2008.
On the night of 1 November 2008 Dr Cunningham and Ms Atoms rode their bicycles into the centre of Fremantle for dinner at a pizza restaurant to celebrate Dr Cunningham's birthday and Ms Atoms' offer of employment from the Water Corporation. Apart from pizza, they each consumed one small bottle of beer, which Dr Cunningham described as 'craft' beer, with their meal.
During the meal Ms Atoms received a text message from someone they knew from NSW, Nathan Hicks. The text message said that he was in WA, attending a wedding in Fremantle, so it was arranged that Ms Atoms and Dr Cunningham would meet Mr Hicks for a drink at Little Creatures Brewery in Fremantle, which is on Mews Road, on the ocean side of a park known as the Esplanade. That park is bordered by Marine Terrace, Fremantle and a railway line.
While at Little Creatures, both Ms Atoms and Dr Cunningham had another beer (probably a full strength beer). Mr Hicks was also drinking.
After this, in the early hours of 2 November 2008, close to 1.00 am, the plaintiffs were walking back with Mr Hicks to where they had parked their bicycles in order to go home. They had crossed the Esplanade and Marine Terrace when they noticed three people - two young men and a young woman - in Essex Street, Fremantle, outside the Esplanade Hotel, which is on the corner of Marine Terrace and Essex Street.
These three people were strangers to the plaintiffs. They had been sitting on the low wall of a garden bed which ran along the outside of the hotel in Essex Street, when one of the men (Male 1) fell backwards into the bushes in the garden bed. The other male (Male 2) went to help him out and in doing so he was either pulled or fell into the garden bed, going in head first. Male 1 managed to get out but the other man remained in the garden bed.
The plaintiffs stopped to help. Ms Atoms approached first and stopped and stood on the footpath giving directions. Dr Cunningham tried, with another male (Male 3) who was one of two other males who also arrived at the scene, to pull Male 2 out of the garden bed. Male 3 fell forwards into the garden bed. Ms Atoms initially stood back with Mr Hicks on the footpath, but at one stage she moved in to grab the lower legs of Male 2. Another male, Male 4, then pushed Dr Cunningham into the garden bed. When this occurred, Ms Atoms let go of Male 2's legs and moved back, to stand 1 m ‑ 2 m away on the footpath, with Mr Hicks, who stood to her right. Male 4 then also went into the garden bed. Mr Hicks and Ms Atoms stood on the footpath watching.
All of this was captured by closed circuit television (CCTV) footage taken from a camera outside the Esplanade Hotel (exhibit 7 - 'the CCTV footage').
The CCTV footage also captured the arrival of Officers Traynor and Clark.
Officer Traynor was aged 32 in November 2008. He started his career in England at the Royal Air Force Police, before joining the Metropolitan Police Force in London in the year 2000. After completing a two year probationary period he moved to the Greater Manchester Police, where he did general policing duties before joining specialist operations in a Tactical Aid Unit in 2005. He was in that position for two years before coming to Western Australia in July 2007. After completing a 12-week transitional course at the WA Police Academy he was posted to Fremantle Police Station as a first class constable.
Officer Clark was 27 years old in 2008. He had previously been employed for about five years as a police officer at the West Mercia Constabulary, and arrived in Western Australia in April 2008. After completing what he described as a three month 'direct entry accelerated learning course' at the WA Police Academy and qualifying as a first class constable, Officer Clark was also posted to the Fremantle Police Station.
Officers Traynor and Clark were on the same team at the Fremantle Police Station. On 1 November 2008 they were on duty together, on a shift which started at 5.00 pm and was due to finish at 3.00 am on 2 November 2008. Some time after 9.00 pm they started a patrol of the Fremantle central business district (CBD).
Both officers were wearing police uniforms, an accoutrement belt, which contain a firearm and a taser, and high visibility vests. These vests, also called load bearing vests, are bright yellow with fluorescent or reflective markings. In or on their vests they had handcuffs, pepper spray, a baton, a top‑up magazine for the firearm, and a police radio (Traynor ts 875; Clark ts 1107). The handcuffs were rigid handcuffs, which have a steel bar between the two cuffs rather than a chain (Traynor ts 876). They drove a marked police vehicle, which Officer Traynor described as a mini bus. Other evidence indicates that this was a police van and I will refer to it as such.
Later that night, during their patrol, as they travelled down Essex Street they saw the group of people outside the Esplanade Hotel. Officer Clark was driving and he parked the police van on the left hand side of Essex Street, opposite the Hotel, facing Marine Terrace. Officers Clark and Traynor got out of the van and walked towards the group.

Officer Clark arrived at the footpath outside the Esplanade Hotel first, then Officer Traynor, who spoke to Ms Atoms. Officer Clark gave his attention to the other people who were in the area and were the real trouble makers (particularly Male 1 and Male 2). While Officer Clark was doing this, Officer Traynor kept talking to Ms Atoms. Dr Cunningham was able to get out of the garden bed and move along Essex Street away from Marine Terrace. Mr Hicks also moved away but returned to stand nearby. After attending to the other people, Officer Clark joined Ms Atoms and Officer Traynor.
There is no sound to the CCTV footage. There is a dispute about what was discussed or said between Ms Atoms and the two police officers. What is alleged against Ms Atoms is that she said 'Haven't you got anything better to fucking do. Go and arrest some proper criminals' ('the words'). Ms Atoms denies that she swore or said the words. The defendants allege that the words and the way in which they were spoken constituted disorderly behaviour.
The CCTV footage shows, however, that Ms Atoms tried to walk away on two occasions. On each occasion Officer Traynor grabbed her by the arm and detained her. Both officers gave evidence that Ms Atoms was asked for her name and address for the purpose of a move on notice, pursuant to s 27 of the Criminal Investigation Act 2006 (WA) ('CIA'), and that she did not give them these details. Ms Atoms' evidence was that she thought she was being asked to leave, and she was not asked for her name and address. There is thus a dispute about exactly what was said and done by the two officers and also Ms Atoms on each occasion before she was grabbed by Officer Traynor.
These two grabs give rise to Ms Atoms' claims of battery against the State (statement of claim pars 19, 25, 60(a) and 60(b) and 62). Ms Atoms also claims that in this conduct Officer Traynor engaged in misfeasance in public office (statement of claim pars 67 ‑ 70).
Officer Traynor and the State claim that there was a lawful justification for detaining Ms Atoms for the purpose of issuing her with a move on notice.
Dr Cunningham then walked up to the two police officers and Ms Atoms. There is a dispute about what Dr Cunningham did and said. His evidence is that he identified himself as a solicitor and asked police whether Ms Atoms was under arrest or was to be given a move on notice. Officer Clark's evidence was that Dr Cunningham said nothing, but grabbed Ms Atoms. Officer Traynor in his evidence said nothing about Dr Cunningham grabbing Ms Atoms. Officer Traynor's evidence was that Dr Cunningham raised his arm towards his (Officer Traynor's) face.
What is shown in the CCTV footage is that Dr Cunningham was turned around by Officer Traynor (who let go of Ms Atoms as he did so) and Officer Clark then took hold of both Dr Cunningham's arms and put them behind his back. Officers Traynor and Clark then pushed Dr Cunningham from the footpath onto the road, Essex Street.
What occurs on the road on Essex Street is not recorded on CCTV. It is not disputed, however, that Dr Cunningham was pushed towards where the police van was parked. He had at least one handcuff on one of his arms. He was also kicked with what was called a 'knee strike'. Dr Cunningham has brought claims for battery against the State arising from Officers Traynor and Clark:
(a)grabbing his arms and pulling them behind his back causing him pain (statement of claim pars 28, 64(a) and 64(b) and 66);
(b)pushing him towards Essex Street while simultaneously holding his arms bent up his back causing him pain (statement of claim pars 31, 64(a) and 64(b) and 66);
(c)handcuffing him (statement of claim pars 34, 64(a) and 64(b) and 66);
(d)kicking him in the leg (the knee strikes - statement of claim pars 35, 64(a) and 64(b) and 66); and
(e)pushing him up against the police van (statement of claim pars 37, 64(a) and 64(b) and 66),
For each of these batteries, Dr Cunningham also claims against Officers Traynor and Clark for misfeasance in public office (statement of claim pars 75 ‑ 78 (Traynor) and pars 79 ‑ 82 (Clark)).
Officers Traynor and Clark and the State claim that there was a lawful justification for the arrest of Dr Cunningham because he was obstructing them from dealing with Ms Atoms, and that Officers Traynor and Clark were entitled to use the force which they did to effect the arrest and overcome Dr Cunningham's resistance to the arrest.
As Dr Cunningham was being pushed from the footpath and taken to the police van, Ms Atoms followed them. There is an issue about what she did as she followed them. Her evidence was that she had placed her hands on Dr Cunningham's back. Officer Clark's evidence was that she had grabbed hold of him (Officer Clark). This forms the basis of the first of two alleged assaults by Ms Atoms on Officer Clark as set out in his counterclaim. This is disputed by Ms Atoms.
The CCTV footage does show, however, that Officer Clark pushed Ms Atoms away. This forms the basis of a further claim for battery by Ms Atoms against the State (statement of claim par 33, 60 (c) and 62). (There is no claim for misfeasance in public office against Officer Clark in relation to this battery).
While Officer Clark admits pushing Ms Atoms, he says he pushed her away to defend himself from her and to overcome her resistance to his arrest of Dr Cunningham (second defendant's defence pars 23 and 42).
It is important to record here the difference in sizes of the plaintiffs and these two police officers. Ms Atoms is 5 foot 7 inches tall but a very slim and slightly built woman, weighing at the time (and now) between 50 kg and 53kg. She wears size 6 clothing which is a very small adult size. Dr Cunningham is 5 foot 11 inches (178 cm) tall with a weight at the time (and now) of 70 kg. Officer Traynor is also 5 foot 11 inches tall but at the time he weighed between 85 kg to 90 kg. Officer Clark is 5 foot 10 inches (175 cm) tall and weighed 73 kg.
After pushing Ms Atoms away, Officer Clark returned to help Officer Traynor with Dr Cunningham. Together the two officers pushed Dr Cunningham off the footpath onto the road.
The above summary is necessarily brief. I discuss the CCTV footage in more detail in Part Three of these reasons.
Officer Traynor made a call for assistance, or back up. This call and various officers' radio responses to it were recorded and those recordings, date and time stamped, were produced in evidence (exhibit 92). The first call was made at 00:57:42. Two minutes and 48 seconds later (35 seconds into a recording which began at 00:59:55, which on my calculation is at 01:00:30), Officer Traynor radioed again to say 'We have enough units here, you can cancel any further. Thanks very much'.
The responses recorded in exhibit 92 were those from other police vehicles, who made contact by the vehicles' police radio. There was evidence of a response by other officers in the Fremantle area who were not in vehicles, but on foot patrol. Two of these were the third defendant, Mr Caldwell, and another police officer who gave evidence in this trial, Senior Constable Ralph Stevenson ('Officer Stevenson').
Upon his arrival at the scene in Essex Street, Mr Caldwell tasered both plaintiffs. The police policy about the use of force, which included tasering, was contained in the Western Australia Police Manuals (exhibit 66, which I will refer to as the Manual). This set out a definition of 'Tasers' as a hand held remote stun system. As also set out in this definition, and confirmed from other evidence in this trial, a taser can be used in two modes. The first, known as the open mode, related to when a taser is fired from a distance and utilised the deployment of two metal probes connected by insulated wire to a power handle. The second, known as 'drive stun mode' is carried out by physically placing the power handle against a person's body. Contact with the probes or the power handle causes a temporary uncontrollable contraction of the muscle tissue, resulting in physical incapacitation of the person. This is known as Neuro Muscular Incapacitation (exhibit 6, page 6).
Mr Caldwell used the drive stun mode to taser Ms Atoms and Dr Cunningham. While it is admitted that Mr Caldwell tasered each of the plaintiffs, there is a dispute as to the circumstances of the tasering in each case and whether it was justified, particularly having regard to the police policy about the use of force as set out in the Manual.
The tasering gives rise to each of the plaintiffs' claims for battery against the State (in relation to Ms Atoms, statement of claim pars 38 ‑ 42, 60 and 62; in relation to Dr Cunningham, statement of claim pars 43, 64(c) and 66) and a claim against Mr Caldwell for misfeasance in public office (Ms Atoms, statement of claim pars 71 ‑ 73; Dr Cunningham, statement of claim pars 83 ‑ 86). Ms Atoms has in fact claimed that she was tasered on two occasions by Mr Caldwell - the first while being held by two unidentified police officers and the second while she was on the ground. That is a matter also in dispute.
At some point while events were occurring on the road, someone on the balcony of one of the rooms of the Esplanade Hotel overlooking Essex Street yelled out something about police brutality or violence and the fact that he was filming or recording (Dr Cunningham ts 618; Officer Clark ts 1267, Officer Stevenson ts 1416).
After the tasering, the plaintiffs were handcuffed, picked up from the road surface and placed in the back of the police van. This gives rise to each of the plaintiffs' claims for battery against the State for the conduct of the unknown police officers who did this (in relation to Ms Atoms, statement of claim pars 46, 60(g) and 62; in relation to Dr Cunningham, statement of claim pars 46 and 66).
The two plaintiffs were then taken to the Fremantle police station where they were processed. There is CCTV footage taken from the lock‑up at the Fremantle police station ('the lock‑up footage'), including sound (exhibit 5). The time when that recording begins, as noted on the footage itself is 01:10:00.
Dr Cunningham was brought into the lock-up at 01:11:05. His handcuffs were removed and he was placed into a holding cell. Ms Atoms was brought in at 01:21:31.
A custody management record for Dr Cunningham (exhibit 1, tab 9) shows that he was first registered in custody and admitted to the lock‑up on 2 November 2008 at 01:24:14. Another and different type of record for Ms Atoms (exhibit 1, tab 10) records her registration and admission to the lock‑up occurring at 01:58:37. The difference in these two records and the lock‑up footage has not been explained to me. It may be that the time on each of the records is the time when the entry was made, and not the exact time of the occurrence.
While the plaintiffs were being dealt with at the lock-up, Officer Stevenson, with other police officers, went to the Esplanade Hotel to find the person who had yelled out something about police brutality and to obtain any recording taken by that person. That person was identified as Mark Brophy. Officer Stevenson seized Mr Brophy's camera and returned to the Fremantle Police Station. After showing the camera screen to Officer Traynor in the lock‑up (details of which I discuss later in these reasons), Officer Stevenson left the lock‑up and went back to the Esplanade Hotel to return the camera to Mr Brophy. Officer Stevenson recorded in his police notebook that he returned the camera at 02:15 (exhibit 4).
Officers Traynor and Clark made entries in their police notebooks. The entry in each case was brief and neither officer made any further note.
The entry made by Officer Traynor (exhibit 1 tab 5) read:
0045: Mobile patrol with I/C 13348 CLARK ESSEX ST, OUTSIDE ESPLANADE HOTEL. VF107. Observed a group of 4 to 5 people outside side of hotel messing around in bushes. could hear laughing exited vehicle approached group could hear shouting also. on close inspection of the group I noticed 3 males in the bushes - for rest of notes see statement as original note.
The entry made by Officer Clark (exhibit 1 tab 4) read:
01.30: Arrest of ATOMS/CUNNINGHAM for obstruct police See statement for original notes.
Officers Traynor and Clark prepared written statements, which they have said constitute their original notes, but these statements were not prepared until 4 November 2008.
Officer Traynor also made the following entry in the Station's P13 Occurrence Book (exhibit 1 tab 6 and exhibit 91):
01.00: I/C TRAYNOR and I/C CLARK arrested violent prisoners ATOMS and CUNNINGHAM Handcuffs used for both prisoners I/C CLARK INJURED LEFT ELBOW. I/C TRAYNOR injured left arm.
Both Ms Atoms and Dr Cunningham were charged with the offence of obstructing a public officer in the performance of the officer's functions contrary to s 172(2) of the Criminal Code.
The custody management record for Dr Cunningham (exhibit 1, tab 9) records that he was charged at 01:48:10, granted bail at 01:54:42 and he gave a bail undertaking at 01:57:32. The record for Ms Atoms (exhibit 1, tab 10) shows that she was charged at 02:00:03, that bail was granted at 02:01:13 and gave a bail undertaking at 02:05:41. The lock‑up footage shows that they were charged at the same time, and their bail was also dealt with at the same time, although Ms Atoms signed her bail papers first. The bail papers for each of the plaintiffs have been admitted into evidence (exhibit 1, tabs 12 and 13), but the time recorded on the Certificate as to Undertaking is illegible. From my review of the lock‑up footage, however, Ms Atoms signed her bail papers at 02:07:35 (as recorded on that footage) and Dr Cunningham signed his at 02:09:15.
The two plaintiffs were, however, released at different times. The custody management record for Dr Cunningham records that he had his property returned and he was released on bail at 02:11. The record for Ms Atoms shows that she was released at 02:08:53. However, the lock‑up footage shows that Ms Atoms left the lock‑up at 02:09:51, while Dr Cunningham left at 02:13:18.
Ms Atoms and Dr Cunningham claim damages for the State for false imprisonment:
(a)In the case of Ms Atoms, for two periods (statement of claim pars 87 and 88):
(i) from when she was grabbed for the second time by Officer Traynor until he let her go in order to arrest Dr Cunningham; and
(ii) from the time she was placed in the police van to when she was released on bail.
(b)In the case of Dr Cunningham, for the whole of the period from the time when he was first taken hold of on the footpath in Essex Street until his release on bail (statement of claim pars 89 and 90).
Officers Clark and Traynor finished their shift at the Fremantle Police Station at 3.00 am.
Mr Caldwell, who remained on duty until 7.00 am, prepared a Use of Force Report in relation to the tasering (exhibit 1, tab 11) as he was required to do by the police policy set out in the Manual.
The plaintiffs took photographs of the marks on their bodies following the events of the night (exhibit 17). The photographs they took in the early hours of Sunday, 2 November 2008 showed red marks on Dr Cunningham's wrists (exhibit 17.3), red marks across Ms Atoms' left hip (exhibit 17.5), a graze on each of Ms Atoms' knees, the worst graze being on her right knee (exhibit 17.6), and two small marks in the lower lumbar section of Ms Atoms' back (exhibit 17.21). The marks on Dr Cunningham's wrists and forearms (front and back) were still noticeable some days later on 5 November 2008 (exhibits 17.10, 17.16 and 17.18) and 8 November 2008 (exhibits 17.14 and 17.15).
Later on the morning of Sunday 2 November 2008, Ms Atoms and Dr Cunningham attended the Fremantle Police Station to speak to the Sergeant in charge the night before, Sergeant Leahy, in an unsuccessful attempt to get the police to apologise and withdraw the charges.
Two days later, on the morning of 4 November 2008 at the time of 5.30 am Officer Traynor sent a draft of his witness statement to Officer Clark by email (exhibit 88). The email read:
Have a read of this please pal. What ya think? I need anything else? Take anything out?
Also on 4 November 2008, Officer Clark prepared a prosecution brief which he sent to his supervising officer, Sergeant Leahy. A prosecution notice for each of the plaintiffs was then produced and dated 4 November 2008 (exhibit 1, tab 14 and 15).
Officer Clark prepared a statement of material facts for the prosecution of the criminal charges (exhibit 1, tab 16). He also sent this to Sergeant Leahy, who made some slight amendments, and both Officer Clark and Sergeant Leahy signed that statement of material facts. It is dated 4 November 2008 and states as follows (referring to Ms Atoms as 'Atom' [sic] and Dr Cunningham as 'Cunningham'):
At about 12.45 am on Sunday 2^nd November 2008, Police were conducting patrols along Essex Street, Fremantle when they observed a number of people shouting, swearing and jumping into bushes that were situated out the front of The Esplanade Hotel and as a result they stopped to speak to the group.
Both accused were standing outside of The Esplanade Hotel, laughing and cheering at the people jumping into the bushes (Atom was observed on CCTV giving another person a 'high five' when a male person fell into the bushes. Cunningham was also observed on CCTV falling into the bushes (a number of times).
Police asked the group to desist with their behaviour and leave the area.
Whilst Police were speaking to the group requesting they leave the immediate area, the accused 1 (Atom) has become argumentative towards Police stating 'Haven't you got anything better to fucking do, just go and arrest some proper criminals'.
Police advised Atom she will be issued with a move on notice in which [sic] she replied 'You can't do that I live in Fremantle' and proceeded to walk off.
Police have attempted to detain Atom in order to obtain her personal details allowing them to complete the move on notice.
Accused 2 (Cunningham) has approached Police and taken hold of Atoms left arm in attempt to pull her away from Police.
Police asked Cunningham to move away in which [sic] he ignored and continued to pull Atom away from Police.
Police then advised Cunningham he was under arrest. As Police attempted to handcuff him, he has resisted by tensing his arms and pulled away from the officers, and has continued to resist in the same manner.
Atom has started pulling at Constable Clark's arm in an attempt to free Cunningham. Atom was warned a number of times to get back before Constable Clark has had to push her away.
As Police endeavoured to place Cunningham into the back of the rear security van, Atom has again taken hold of Constable Clark's arm in attempt to loosen his grip.
Atom has then placed both of her arms around Constable Clark's neck which caused him to drop his handcuffs. Atom has picked up the handcuffs and proceeded to throw them across the road and then jumped on his back.
Police have requested immediate urgent back up in which several officers arrived and observed Atom on Constable Clark's back and Cunningham resisting against Police.
As a result of Atom's and Cunningham's demeanour, Police have deployed their TASER in attempted to [sic] subdue both accused.
Both were placed under arrest and conveyed to the Fremantle Police Station were [sic] present charges were preferred.
The emphasis in italics is mine. Based on the whole of the evidence, I have found that those italicised passages are erroneous and that some of them were fabricated by Officer Clark (as to which see [795] ‑ [797] below).
Officer Clark also prepared his own witness statement for the purpose of the criminal charges. Officers Clark and Traynor then witnessed each other's written statements. The witness statements bear the date of 4 November 2008. Officer Clark's statement was recorded as signed and witnessed at 23:00 (exhibit 89) and Officer Traynor's statement was recorded as signed and witnessed at 23:30 (exhibit 86). There was no change in Officer Traynor's statement from the earlier draft he had sent by email to Officer Clark. (I discuss these witness statements later in my reasons (see [335] ‑ [359] below).

The trial of the criminal charges against Ms Atoms and Dr Cunningham was originally listed to take place on 20 July 2009, but it was adjourned because there were issues raised as to the adequacy of disclosure by the prosecution (exhibit 93). The charges were eventually heard in the Magistrates Court on 29 April 2010 and dismissed.
The circumstances of the hearing and dismissal of the charges, as set out in the statement of claim pars 57 and 58 and either specifically admitted or not disputed by the defendants, is that the prosecutor at the trial, who was not Officer Clark:
(a)stated that he would call two witnesses, being Officers Clark and Traynor, and play the CCTV footage;
(b)agreed that the hearing would take about two days;
(c)called Officer Clark who gave evidence and was cross examined;
(d)played the CCTV footage;
(e)after the evidence of Officer Clark and the playing of the CCTV footage, elected not to call any further evidence in the case; and
(f)after counsel for Dr Cunningham and Ms Atoms had made a no case submission, made no submissions opposing the application.
It is also admitted or not disputed by the defendants that:
(a)the prosecution of both Dr Cunningham and Ms Atoms was determined with them each being acquitted of the charges against them; and
(b)Dr Cunningham and Ms Atoms sought costs of $15,000. The prosecutor made no submissions in opposition to that application.
It is fair to say from the matters I have set out in [72] ‑ [73] that the prosecution against the plaintiffs collapsed. Each of the plaintiffs claim damages from Officer Clark for malicious prosecution.

PART TWO - THE LAW AND ISSUES ON LIABLITY

The Civil Liability Act 2002 does not apply to the plaintiffs' claims. Section 3A of the Civil Liability Act provides that pt 1A (dealing with the tests for liability for harm caused by the fault of a person), pt 1B (dealing with mental harm) and pt 2 (dealing with constraints on awards for damages) other than s 10A, do not apply to damages relating to personal injury caused by an unlawful intentional act that is done with an intention to cause personal injury to a person.
The provisions of s 137 of the Police Act 1892 (WA) have influenced what claims the plaintiffs have made against each of the defendants. Pursuant to s 137(3), an action in tort does not lie against a police officer for anything that he has done, without corruption or malice, while performing or purporting to perform the functions of his office. Pursuant to s 137(5)(a) if a police officer does commit a tort without corruption or malice, the State is effectively made vicariously liable for that tort. Accordingly in this case, the State is not liable for any act done with malice, while the first, second and third defendants can only be personally liable for an act done with malice.
For the purpose of this case it is necessary to set out the law relating to the use of move on notices, police powers of arrest, the use of force by police (including the police policy at the relevant time relating to the use of tasers), the law relating to the offences of disorderly behaviour and obstructing a public officer, as well as the law relating to the torts of battery, false imprisonment and misfeasance in public office, the meaning of 'malice' in s 137 of the Police Act and the law relating to the tort of malicious prosecution.

'Move on' notices

A police officer has the power to order a person who is in a public place to leave it, or a part of it, as specified by the officer. Section 27 of the CIA, as it applied on 2 November 2008, provided:
27. Suspects and others may be ordered to move on
(1)A police officer may order a person who is in a public place, or in a vehicle used for public transport, to leave it, or a part of it specified by the officer, if the officer reasonably suspects that the person -
(a)is doing an act -
(i)that involves the use of violence against a person;
(ii)that will cause a person to use violence against another person; or
(iii)that will cause a person to fear violence will be used by a person against another person;
(b)is just about to do an act that is likely to -
(i)involve the use of violence against a person;
(ii)cause a person to use violence against another person; or
(iii)cause a person to fear violence will be used by a person against another person;
(c)is committing any other breach of the peace;
(d)is hindering, obstructing or preventing any lawful activity that is being, or is about to be, carried out by another person;
(e)intends to commit an offence; or
(f)has just committed or is committing an offence.
(2)A police officer giving an order under subsection (1) may in addition do either or both of the following -
(a)order the person to go beyond a reasonable distance from the place, or the part of the place, set by the officer;
(b)order the person to obey the order or orders for a reasonable period set by the officer; but the period must not be longer than 24 hours.
(3)When giving a person an order under subsection (1), a police officer must take into account the likely effect of the order on the person, including but not limited to the effect on the person's access to the places where he or she usually resides, shops and works, and to transport, health, education or other essential services.
(4)For the purpose of giving an order under this section to a person whose personal details (as that term is defined in the Criminal Investigation (Identifying People) Act 2002 section 16) are unknown to the officer, a police officer may request the person to give the officer any or all of the person's personal details.
(5)If a request is made under subsection (4), the Criminal Investigation (Identifying People) Act 2002 section 16 applies to and in relation to the request in the same way as it applies to a request made under subsection (2) of that section.
(6)Any order given under this section must be in writing on a prescribed form.
(7)A person is not in breach of the move on order if the person is taking reasonable steps to comply with the order and move out of the area.
(8)This section does not prevent a police officer from charging a person with an offence without having exercised a power in this section.
The evidence I heard in this trial was that officers are issued with a book containing move on notices in the prescribed form referred to in s 27(6), although Officer Traynor's and Clark's evidence differed. Officer Traynor stated that he was issued with a move on notice book which was kept in the pocket of his vest, although he added that if stock of the books ran out, officers might go out in a pair with just one book (ts 926). Officer Clark gave evidence that move on notice books were not personal issue and officers have one book per vehicle (ts 1111).
A breach of the peace occurs when an act 'either actually harms a person, or in his presence his property, or is likely to cause such harm, or which puts someone in fear of such harm being done': R v Howell [1982] QB 416, 426; applied in Tomarchio v Pocock [2002] WASCA 156 [54].

Police powers of arrest

It is not in dispute that in the circumstances of this case there was no 'serious offence' as defined within the meaning of s 128 of the CIA, and the applicable power of arrest is that contained in s 128(3). This provided (as at 2 November 2008):
(3)A police officer or a public officer may arrest a person for an offence that is not a serious offence if the officer reasonably suspects -
(a)that the person has committed, is committing, or is just about to commit, the offence; and
(b)that if the person is not arrested -
(i)it will not be possible, in accordance with law, to obtain and verify the person's name and other personal details; or
(ii)the person will continue or repeat the offence; or
(iii)the person will commit another offence; or
(iv)the person will endanger another person's safety or property; or
(v)the person will interfere with witnesses or otherwise obstruct the course of justice; or
(vi)the person will conceal or disturb a thing relevant to the offence; or
(vii)the person's safety will be endangered.
Section 128 of the CIA replaces the common law. An arrest is lawful notwithstanding a failure to inform the person at the time of the arrest of the cause (i.e. reason) for the arrest: Johnson v Staskos [2015] WASCA 32 [11] ‑ [15].

What is a reasonable suspicion?

A move on notice is only justifiable if the police officer 'reasonably suspects' that the person is doing or is likely to do one of the acts set out in CIA s 27(1). Similarly a police officer can only arrest a person for an offence under CIA s 128(3) if that officer 'reasonably suspects' that the person has committed, is committing, or is just about to commit the offence and one of the matters set out in s 128(3)(b) will occur if the person is not arrested.
For the purposes of the CIA, a person reasonably suspects something at a relevant time if he or she personally has grounds at the time for suspecting the thing and those grounds (even if they are subsequently found to be false or non‑existent), when judged objectively, are reasonable: Johnson v Staskos [26].
Reasonable grounds for a state of mind, including suspicion, requires the existence of facts which are sufficient to induce that state of mind in a reasonable person: George v Rockett (1990) 93 ALR 483, 488.
As was put by the Victorian Court of Appeal in R v Heaney [1992] 2 VR 531, 548 (Phillips CJ, Crockett J and O'Bryan J) referring to Walsh v Loughnan [1991] 2 VR 351:
Vincent J observed in his ruling: 'Although the creation of a suspicion requires a lesser factual basis than the creation of a belief, it must, nonetheless, be built upon some factual foundation.'
In our opinion, this observation is plainly correct. The section is not concerned with a state of mind founded upon speculation or 'mere idle wondering' … but is concerned with a state of mind arrived upon consideration of known facts out of which an apprehension that a person might possibly have committed an offence is created.

Police use of force

As at 2 November 2008 the use of force by police was canvassed by the CIA, the Criminal Code.
Section 16 of the CIA provided:

16. Force, use of when exercising powers
(1)When exercising a power in this Act, a person may use any force against any person or thing that it is reasonably necessary to use in the circumstances -
(a)to exercise the power; and
(b)to overcome any resistance to exercising the power that is offered, or that the person exercising the power reasonably suspects will be offered, by any person.

(2)If under subsection (1) a person uses force, the force may be such as causes damage to the property of another person.
(3)Any use of force under subsection (1) against a person is subject to The Criminal Code Chapter XXVI.

The relevant sections of the Criminal Code are s 231 and s 260:
231.Force used in executing process or in arrest
(1)It is lawful for a person who is engaged in the lawful execution of any sentence, process, or warrant, or in making any arrest, and for any person lawfully assisting him, to use such force as may be reasonably necessary to overcome any force used in resisting such execution or arrest.
…
260.Excessive force is unlawful
In any case in which the use of force by one person to another is lawful, the use of more force than is justified by law under the circumstances is unlawful.
The effect of CIA s 16 and the Code s 231 and s 260 is that if a police officer uses more force than is reasonably required in the circumstances to effect an arrest, that use of force is unlawful: Elwin v Robinson [2014] WASCA 46 [60] (Mazza JA; Pullin & Newnes JA agreeing).
As to what force is reasonably required, this requires an objective evaluation of all the surrounding circumstances, remembering that the purpose of an arrest is not only a step in bringing an alleged offender to justice, it is also part of a police officer's general duty to preserve order. It also requires taking into account the reality that where there is a situation of sudden violence and mayhem or a public disturbance such as a street fight, an officer may need to act quickly and decisively and may have no time to make a fine judgment about what force is necessary: Elwin v Robinson [61] ‑ [62].
Care should be taken to judge the conduct of police 'by reference to the pressure of events and the agony of the moment', not by reference to hindsight: Woodley v Boyd [2001] NSWCA 35 [37]. However, as stated in Elwin v Robinson [63]:

This is not to say that police officers are unaccountable and can act with impunity when arresting persons alleged to be involved in public disturbances. Acknowledging the difficulties that police officers face in such circumstances, the actions of police are subject to the scrutiny and judgments of the courts against the yardstick of what was reasonably necessary in all the circumstances of the particular case.

As to the use of tasers by police, the Manual (exhibit 66) provided (relevantly):
The purpose of these guidelines is to:
·Reflect WAPOL's commitment to providing operational sworn officers with less lethal force options to manage violent or dangerous persons.
·Identify the circumstances under which the Taser may be issued and deployed.
…
Definitions
'Tasers' - are a hand held remote stun system, utilising the deployment of two metal probes connected by insulated wire to a power handle, or by physically placing the power handle against a persons body. Contact with the probes or the power handle causes a temporary uncontrollable contract of the muscle tissue, resulting in physical incapacitation of the person. This is known as Neuro Muscular incapacitation.
G G G G G
FR-1.6.1 Responsibilities
Responsibilities of Members
A member issued with a Taser is accountable for the weapon at all times and will ensure that:
…
·When a Taser is deployed operationally an entry shall be made in the Station/Unit Occurrence Book (P13) recording the quantity of cartridges expended the serial number of the cartridge/s and nature of the circumstances warranting the expenditure.
·When a Taser is deployed operationally, a 'Use of Force' report in the approved format shall be submitted.
·The Taser and associated equipment is used in a manner consistent with the approved training and policy in relation to the Use of Force.
…
FR-1.6.4 Use of Taser
The Taser is an alternate force option designed to incapacitate a person from a safe distance.
The use of the Taser should be reasonable and appropriate in the circumstances and members will be accountable for any excessive use of force.
THE TASER SHALL ONLY BE USED TO PREVENT INJURY TO ANY PERSON AND SHALL NOT BE USED AS A COMPLIANCE TOOL.
Consideration must be given to the nature of the incident, the location of the person of interest and any overt susceptibilities of the person of interest.
Taser will cause incapacitation to the person of interest that is best described as causing all the muscles within the body to engage violently and immediately. Consequently the body will stiffen and the person of interest if standing may fall to the ground. Accordingly an appreciation of the surrounds should be made prior to deployment to minimise the potential for injury to persons of interest when incapacitation occurs.
…
FR-1.6.5 Warning Prior to Use
Unless it is impractical to do so in the circumstances, members are to issue a verbal warning, 'Taser, Taser' prior to discharging the Taser at another person.
G G G G G
…
FR-1.6.7 Aftercare
First aid, if required, should be administered to the subject as soon as practicable after the person has been incapacitated. Medical assistance should be provided if necessary.
As soon as is practically possible after a Taser is deployed, medical assistance shall be provided by a Medical Practitioner in circumstances where the subject:
Does not recover within a reasonable time; or
Asks for medical attention; or
is reasonably suspected of suffering from a medical condition.
…
FR-1.6.8 Reporting and procedures for retention and disposal of cartridges
When a Taser is used against a person, the member involved must:
• Ensure that a supervisor is notified as soon as possible; and
• Complete and submit a 'Use of Force' report in the prescribed manner.
The evidence I heard in this case was that in the course of their training, police officers were taught that the use of the words 'Taser, Taser' was to warn nearby police officers, rather than to warn the person who was going to be tasered (Mr Caldwell ts 1396 ‑ 1397; Officer Stevenson ts 1438; Detective Ryan Rawlins ts 1459).

The offence of disorderly behaviour

The offence of disorderly behaviour, (formerly contained in s 54 of the Police Act and referred to as disorderly conduct), is contained in the Criminal Code s 74A which provides, relevantly:
74A. Disorderly behaviour in public
(1)In this section -
behave in a disorderly manner includes -
(a)to use insulting, offensive or threatening language; and
(b)to behave in an insulting, offensive or threatening manner.
(2)A person who behaves in a disorderly manner -
(a)in a public place or in the sight or hearing of any person who is in a public place; or
(b)in a police station or lock‑up,
is guilty of an offence and is liable to a fine of $6 000.
To be disorderly, the conduct or behaviour must have caused or been likely to cause a serious disturbance or annoyance to others present. It must disturb the 'order' of the particular public place at that particular time: Melser v Police [1967] NZLR 437; Heanes v Herangi [2007] WASC 175; (2007) 175 A Crim R 175 [176].
All the surrounding circumstances will have a bearing on the issue of whether the conduct or behaviour is disorderly: Mogridge v Foster [1999] WASCA 177 [7].
The conduct must seriously offend recognised and appropriate standards of behaviour. The conduct must also be serious enough to warrant the interference of the criminal law. This is tested objectively: Melser v Police; Romito v Williams (Unreported, WASC, Library No 920649, 4 December 1992) (Ipp J); King v Connor (Unreported, WASC, Library No 960444, 14 August 1996) (Steytler J); Mogridge v Foster [5] and [6] (McKechnie J).
Where the disorderly conduct or behaviour is the use of swear words or obscene language, the question as to whether the words were obscene, in the sense that they offended current standards of decency, is to be determined in the light of the standards of the community, not a particular witness. The ascertainment of the contemporary standard of propriety is entirely a matter for the tribunal itself and no evidence on it is admissible: E (A Child) v Staats (1994) 13 WAR 1, 5.

The offence of obstructing a public officer

The offence of obstructing a public officer is contained in the Criminal Code s 172:
172. Obstructing public officers
(1)In this section -
obstruct includes to prevent, to hinder and to resist.
(2)A person who obstructs a public officer, or a person lawfully assisting a public officer, in the performance of the officer's functions is guilty of a crime and is liable to imprisonment for 3 years.
The offence requires proof of three elements, namely:
(a)the person who was obstructed was a public officer;
(b)at the time of the commission of the offence the public officer was acting in the performance of his or her functions; and
(c)the conduct complained of obstructed, prevented, hindered or resisted the public officer in the performance of his or her functions.

Section 172(1) defines 'obstruct' as including 'to prevent, to hinder and to resist'. The definition of 'public officer' in s 1 of the Criminal Code includes a police officer. The word 'function' is not defined by the Code, but there is a definition in the Interpretation Act 1984 (WA), s 5:
'function' includes powers, duties, responsibilities, authorities and jurisdictions
Whether a public officer was acting in the performance of his or her functions needs to be determined having regard to the nature of the public office held and the particular function or functions which the officer was attempting to perform at the time in question: Hayward‑Jackson v Walshaw [2012] WASC 107 [22] (EM Heenan J).
Where the public officer is a police officer, it is part of his or her obligations and duties to take all steps which appear necessary for keeping the peace, for preventing crime or for protecting property from criminal injury. The powers and obligations of police include the duty to detect crime and to bring an offender to justice: Rice v Connolly [1966] 2 QB 414, 419 (Lord Parker CJ); Hayward‑Jackson v Walshaw.
In Innes v Weate [1984] Tas R 14; 12 A Crim R 45, 51 (applied in Hayward‑Jackson v Walshaw) Cosgrove J stated:
There are two difficulties in this concept of duty. One is that it cannot be stated in other than general terms - the range of circumstances in which the duty to act may arise is too wide, too various, and too difficult to anticipate for the compilation of an exhaustive list. The other is that the existence and nature of the duty often depends upon a reasonable assessment by the constable of any given situation. That assessment may be examined in the courts and held to be right or wrong. These difficulties cannot be overcome. It is important that a constable should have a wide discretion to act swiftly and decisively; it is equally important that the exercise of that discretion should be subject to scrutiny and control so that he should not too easily or officiously clothe himself with the powers of the State and by doing so affect the rights and duties of other citizens.
If a police officer uses more force than is reasonably required in the circumstances to effect an arrest, that use of force is unlawful, the police officer will not be performing a function of his or her office and an offence against s 172 of the Criminal Code cannot be made out: Elwin v Robinson [60].
Similarly, if a police officer has a power which is predicated on a condition (such as the requirement of an officer to form a relevant view or belief), an offence against s 172 could not be made out. If the condition is not established, it could not be said that the police officer was performing a function of his or her office: Cox v Robinson [2000] QCA 454; [2001] 2 Qd R 261 [5].
As to what amounts to an obstruction, it has been held that 'to obstruct' means to make it more difficult for police officers to carry out their duty: Carmichael v McGowan [1967] WAR 11, 13; Hayward‑Jackson v Walshaw [20] ‑ [21] (EM Heenan J); Elwin v Robinson [54].

The tort of battery

Battery requires a direct act of the defendant which causes contact with the body of the plaintiff: Carter v Walker [2010] VSCA 340; (2010) 32 VR 1 [215] ‑ [216]. The elements of the tort of battery are that:
(a)there is a voluntary act by the defendant (voluntary in that the act is directed by the defendant's conscious mind);
(b)the act immediately or directly caused physical contact with the plaintiff; and
(c)such contact was offensive, in that it was likely to cause injury or affront.
The onus is on the plaintiff to prove that there has been some offensive physical contact by the defendant, but the tort does not require proof that the defendant intended the plaintiff any harm, or that the plaintiff suffered harm in fact: Carter v Walker [215].
Where a battery is proved in the context of the actions of police, the onus is on the police to establish that they acted with lawful justification (ie their actions were authorised or excused by law): Bulsey v Queensland [2015] QCA 187 [4] and [46].
If reasonable force is used in the course of effecting a lawful arrest, that can provide a legal justification for what would otherwise be a battery. However, an unlawful arrest is not a tort separate to battery: New South Wales v Williamson [2011] NSWCA 183 [24] (Campbell JA).

The tort of false imprisonment

The tort of false imprisonment consists in the act of arresting or imprisoning any person without lawful justification, or otherwise preventing him, without lawful justification, from exercising his right of leaving the place in which he is: McDonald v Coles Myer Ltd (1995) Aust Torts Report 81-361, 62,690.
The elements of the tort of false imprisonment are:
(a)the defendant intentionally caused the total restraint of the plaintiff's liberty; and
(b)the restraint of the plaintiff's liberty was not lawfully justified.
It has been said that one of the 'pillars of liberty' is that every imprisonment is prima facie unlawful, and it is for a person directing imprisonment to justify his act: Bulsey v Queensland [4] (Fraser JA); see also Darcy v New South Wales [2011] NSWCA 413 [141] ‑ [146]. As stated by Fullagar J in Trobridge v Hardy (1955) 94 CLR 147, 152:
The mere interference with the plaintiff's person and liberty constituted prima facie a grave infringement of the most elementary and important of all common law rights. It was for the defendant to justify, if he could, by reference to his office or otherwise.
The plaintiff is required to prove the fact or occurrence of imprisonment or restraint. To constitute the tort there need be no imprisonment in the sense of incarceration or being locked up. It is sufficient that the person in question has been deprived of his or her personal liberty for any time, however short: McDonald v Coles Myer Ltd; Houda v New South Wales [2005] NSWSC 1053; (2005) Aust Torts Rep 81-816 [349].
The action depends upon proof that were it not for the defendant's conduct, the plaintiff would not have submitted to or yielded to the restraint: McFadzean v Construction, Forestry, Mining & Energy Union [2007] VSCA 289; (2007) 20 VR 250 [41] ‑ [48] and [52]; Young v Cooke [2013] NSWCA 79 [11]. The restraint must be upon a person's liberty to come and go and must be against his or her will: Darcy v New South Wales [144].
Imprisonment or restraint can occur where a police officer, without actually laying hands on or formally arresting the plaintiff, gives the plaintiff to understand that he or she should not go out of the presence or control of the officers: Myer Stores Ltd v Soo [1991] 2 VR 597, 599, 625; see also Watson v Marshall & Cade (1971) 124 CLR 621 [6].
Once the imprisonment or restraint is proved, the onus shifts to the defendant to show that such imprisonment or restraint was justified or lawful: Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 [97]; Darcy v New South Wales [143].
False imprisonment begins from the moment when the plaintiff is restrained until released on bail: Calabro v The State of Western Australia [2012] WASC 418 [42] ‑ [45] (Beech J).
A cause of action for false imprisonment may be established by a plaintiff without needing to establish malice or, for that matter, establishing any improper motive or purpose on the part of an alleged defendant tortfeasor: Calabro v The State of Western Australia [No 3] [2014] WASC 84 [46] (Kenneth Martin J).

Misfeasance in public office

The tort of misfeasance in public office concerns an exercise of authority by a public officer other than in an honest attempt to perform the functions of his or her office: Northern Territory of Australia v Mengel [1995] HCA 65; (1995) 185 CLR 307, 357 (Brennan J) (Mengel).
The tort may apply to police officers in the exercise of their powers: Farrington v Thomson [1959] VR 286.
The elements of the tort, as set out by Deane J in Mengel (370) are that:
(a) there must be an invalid or unauthorised act;
(b)the act must be done maliciously;
(c)the act must be done by a public officer;
(d)the act must be done in the purported discharge of the public officer's public duties; and
(e)the act must cause loss or harm to the plaintiff.
The onus of proof of all of these elements is on the plaintiff.
To prove malice the plaintiff must demonstrate the public officer's intention to cause harm, or that he was recklessly indifferent to harm, or that he knowingly acted in excess of his power: Mengel (347 ‑ 348) (Mason CJ, Dawson, Toohey, Gaudron, McHugh JJ).

The meaning of 'malice' in the Police Act s 137

In Luetich v Walton [1960] WAR 109 the defendant police officer attended on a boundary dispute between neighbours, one of whom was the plaintiff. The officer called at the plaintiff's home but the plaintiff refused to discuss the matter with the defendant. The defendant threatened to obtain a warrant for the plaintiff's arrest. The defendant then went to the disputed boundary where the plaintiff's neighbour had started to erect a fence. The plaintiff then came out and a dispute ensued, during which it was alleged by the defendant that the plaintiff had thrown a fence post at him. The defendant then went back to the police station and did obtain a warrant for the arrest of the plaintiff on a charge of disorderly conduct. The defendant returned to the plaintiff's house, arrested him, took him back to the police station and formally charged him. The plaintiff was then released on bail. Subsequently a charge of assault was added. The plaintiff was convicted on the charge of assault, but the disorderly conduct charge was dismissed because the conduct had not occurred in a public place.
The plaintiff in Luetich v Walton succeeded in his claim for damages against the defendant for malicious prosecution and wrongful arrest and imprisonment on the disorderly conduct charge. It was argued by the defendant that he was not liable because there had been no 'direct proof of malice' (the requirement which then applied under the Police Act). Wolff CJ held (112) that the wrongful act of the defendant in arresting the plaintiff for disorderly conduct was the result of pique, and thus malice was proved.
In Trobridge v Hardy Fullagar J observed (155):
With regard to what is meant by 'malice' in the statute, I think that his Honour correctly held that it was used in the sense, familiar in cases of malicious prosecution, of personal spleen or ill-will, or some motive other than that of bringing a wrongdoer to justice.
Le Miere J in Ives v The State of Western Australia [2010] WASC 178 [27] ‑ [28] reviewed the meaning of 'malice' in the Police Act s 137(5) in the context of the liability of the State and concluded ([28]):
The idea of malice is an element in certain forms of liability such as nuisance, malicious prosecution, malicious falsehood and defamation. At the heart of the notion of malice is the abuse of a power for some improper motive or purpose. In general, police officers have common law and statutory powers to enable them to carry out their duty of preserving the peace and detecting crime. It is not necessary to explore the outer limits of the meaning of 'without corruption or malice' in s 137(5) of the Act. At the heart of the notion of malice in s 137(5) of the Act is the notion of the abuse of power or acting for an improper motive or purpose.

Malicious prosecution

Following two High Court authorities, A v New South Wales (2007) 230 CLR 500 [1] and Beckett v New South Wales [2013] HCA 17; (2013) 248 CLR 432 [4], to succeed in claim of malicious prosecution a plaintiff must establish that:
(a) proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated or maintained against the plaintiff by the defendant;
(b)the proceedings terminated in favour of the plaintiff;
(c)the defendant in initiating or maintaining the proceedings acted maliciously; and
(d)the defendant acted without reasonable and probable cause.
It has been suggested in a number of authorities, including Noye v Robbins [2010] WASCA 83 [61], and the parties in their submissions in this case also suggested, that there is a fifth element, namely that the plaintiff suffered damage within at least one of the three specific heads identified by Holt CJ in Savile v Roberts (1698) 1 Ld Raym 374; (1698) 91 ER 1147, namely damage to the plaintiff's fame or reputation; damage to the plaintiff's person; and damage to the plaintiff's property.
However, damage has not been identified as an element in the High Court decisions of A v NSW and Beckett v NSW. Indeed in the joint judgment of Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ in A v NSW [1], their Honours specifically referred to 'the four elements of the tort of malicious prosecution', which are those in [131] above. These four elements were confirmed by French CJ, Hayne, Crennan, Kiefel and Bell JJ in their joint judgment in Beckett v NSW [4] and [49]. Accordingly, following the High Court, I do not consider that proof that the plaintiff has suffered damage is an element of this tort.
In relation to the first element, the plaintiff must show that the defendant was the 'prosecutor'. The defendant must play an active role in the conduct of the proceedings, and anyone responsible for initiating or maintaining the prosecution can be regarded as a prosecutor: Fleming, John G 'The Law of Torts' 10th ed [27.30]; A v NSW [34]; Young v New South Wales; Young v Young (No 2) [2013] NSWSC 330 [141].
On the second element, a plaintiff does not have to prove his or her innocence in order to succeed in a claim for malicious prosecution, even if the prosecution was terminated other than by an acquittal, such as by the entry of a nolle prosequi by the Attorney‑General or a direction by the Director of Public Prosecutions under a statutory power that no further proceedings be taken against the plaintiff.The plaintiff has no control over the termination of the proceedings in any of these ways and in those circumstances it would be unjust to deprive him or her of the ability to recover for the tort. What the plaintiff requires for his action is not a judicial determination of his innocence, but merely the absence of any judicial determination of his guilt: Beckett v NSW [49] ‑ [54].
Of course, the plaintiff must still prove the absence of reasonable and probable cause (the fourth element) before he or she can recover in a civil action: Beckett v NSW [51].
In relation to the element of malice (the third element), the plaintiff must establish that the sole or dominant purpose of the defendant was an improper purpose, ie a purpose other than the proper invocation of the criminal law: A v NSW [55], [91], [92]. Examples of improper purposes include spite or ill will, to punish the accused, and to stop a civil action brought by the accused against the prosecutor. However it is not possible to identify exhaustively when the processes of the criminal law may be improperly invoked: A v NSW [92].
In a claim for malicious prosecution the plaintiff does not have to prove the actual purpose or motivation for the prosecution. As stated in Trobridge v Hardy (164) in the context of a jury trial (and applied in State of New South Wales v Abed [2014] NSWCA 419; (2014) 246 A Crim R 549 [151]):
If they think it more probable than not that the prosecutor lacked a belief in the guilt of the accused, they are justified in taking the next step of concluding that the prosecution was not instituted from a genuine desire to serve the ends of justice and is not to be satisfactorily explained save on the supposition that the prosecutor was actuated by an indirect or improper motive. If so, they may legitimately make a finding of malice, even though they may not feel able to say precisely what the malicious motive was.
Proof of malice will often be a matter of inference, but 'it is proof that is required, not conjecture or suspicion': A v NSW [93].
The element that the defendant acted without reasonable and probable cause may be established in either or both of two ways: the defendant did not 'honestly believe' the case that was instituted or maintained, or the defendant had no sufficient basis for so believing: A v NSW [77].
In most cases, the allegation that the defendant did not 'honestly believe' the case will require consideration of what the defendant knew, believed or concluded about some aspect of the material that he or she had available when deciding whether to prosecute or maintain the prosecution: A v NSW [78].
The element of the absence of reasonable and probable cause is often intimately connected with the element of malice, and it is not easy to place the relevant factual matrix into neat compartments: Noye v Robbins [123]. Proof of particular facts may supply evidence of both the third and fourth elements. Thus, for example, if the plaintiff demonstrates that a prosecution was launched on obviously insufficient material, the insufficiency of the material may support an inference of malice as well as demonstrate the absence of reasonable and probable cause: A v NSW [90].

The standard of proof

For all of the torts the subject of this action, and because of the gravity of the allegations made by each of the parties, the standard of proof in relation to anything on which either the plaintiffs or the defendants bear the onus of proof is the civil standard, but applying Briginshaw v Briginshaw (1938) 60 CLR 336, 361 ‑ 363: see Ruddock v Taylor [97]; New South Wales v Koumdjiev [2005] NSWCA 247; (2005) 63 NSWLR 353 [61] ‑ [63]; Nye v The State of New South Wales [2003] NSWSC 1212 [9].
That requires me to be actually persuaded as to the probability of a fact being true: Briginshaw (360 ‑ 361) (Dixon J). It is important, however, when applying Briginshaw to bear in mind what the High Court stated in Neat Holdings Pty Ltd v Karajan Holdings [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449 [2] (Mason CJ, Brennan, Deane and Gaudron JJ) (endnotes and citations omitted):
… The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. …

The issues relating to liability in this case

Having regard to the pleadings, the evidence and submissions of the parties at trial (and with some minor changes to the issues which I discussed with counsel for the parties during trial, and the addition of issues five, six and 10), I consider that the following issues relevant to liability are:
1.what happened before Ms Atoms was grabbed by Officer Traynor on the footpath and was she thereby detained?
2.was the detention of Ms Atoms lawful?
3.what happened before the arrest of Dr Cunningham?
4.was the arrest of Dr Cunningham lawful?
5was there an excessive use of force by Officers Traynor and Clark against Dr Cunningham?
6.why did Officer Clark push Ms Atoms and was this justified?
7.was there any justification for tasering Ms Atoms?
8.was Ms Atoms' arrest lawful?
9.was there any justification for tasering Dr Cunningham?
10.how were Ms Atoms and Dr Cunningham handled after their tasering until the time they were placed in the police van?
11.was the imprisonment of Ms Atoms at any time until released on bail lawful, and therefore justified?
12. was the imprisonment of Dr Cunningham at any time until released on bail lawful and therefore justified?
13.was any of the individual conduct of the first, second or third defendants malicious?
14.was the prosecution of the criminal charges against Ms Atoms and Dr Cunningham malicious in the sense of being:
(a) without reasonable and probable cause; and
(b)actuated by malice?

This is a situation where I accept part, but not all, of each of Dr Fitch's and Dr Lee's evidence and I have taken a view of Ms Atoms' future treatment needs which does not exactly represent what either of the medical experts has said.
In my view there should be provision for some future medical care for Ms Atoms (ie physical, psychological and psychiatric) however, I am not prepared to allow the amount claimed based on the estimated costs of treatment set out by Dr Fitch for the following reasons:
(a) First, it is relevant to take into account the quantum for past expenses and that, with the treatment she has undergone, Ms Atoms has achieved some improvement.
(b)Secondly, with the resolution of these proceedings and further treatment there should be some improvement again. There should, however, be an allowance for treatment for Ms Atoms' PTSD for between one to three years (the first year requiring the most intensive treatment as Dr Lee has advised).
(c)Thirdly, while Ms Atoms may, from time to time, require increased visits to her GP and other practitioners because of the injuries she suffered in this incident, this is unlikely to be at a constant throughout her life time.
(d)Fourthly, I need to take into account the likelihood that, even without this incident and the injuries she has suffered, Ms Atoms would require comprehensive medical treatment as she aged, in any event.
(e)Finally, I am not satisfied that the costs of future hospital treatment should be allowed, given that Ms Atoms has not previously required hospitalisation, even when her PTSD was at its most severe.
Dealing first with GP costs, Dr Fitch allowed for 12 visits a year at $175 per hour (I assume that is per visit) which equates to $2,100, but also made allowance for 'annual blood tests for complications'. In my view 12 visits per year for Ms Atoms' life time is not warranted. I will allow 12 visits a year for the next 3 years, which in my view is the period when she will be most in need of regular review. This equates to $5,798.57 ($40.38 per week, applying the multiplier for three years of 143.6), which I will round up to $6,000. I will allow a global amount thereafter of $10,000. The amount I will allow for GP costs is therefore $16,000.
The next item I will allow is the costs of psychotherapy. Dr Fitch calculated a sum of $3,000 based on 6 visits a year, which equates to a cost of $500 per visit, and Dr Lee agreed with that cost. I wil allow for intensive psychotherapy twice a week for one year ($52,000), then once a week for the next year, to allow for tapering off as recommended by Dr Lee ($26,000) and then three visits for the third year ($1,500). I do not propose to apply any multiplier for these next three years to allow for the possibility that the tapering process may take a little longer. I will then allow a global amount of $20,000 for future psychotherapy, accepting that Ms Atoms' needs after these three years or so should be only on an infrequent basis in the event of a particular stressor or trigger. The amount I allow for psychotherapy is $99,500.
Both psychiatrists agree that Ms Atoms should be reviewed by a psychiatrist. Dr Fitch's allowance of $1,500 per annum was based on four visits per year at a cost of approximately $360 per visit. I will allow this for three years (to coincide with Ms Atoms' psychotherapy needs). The amount I will allow for three years is $4,165 ($29 per week x the multiplier for three years, 143.6). I will allow a global amount of $10,000 for the cost of a psychiatrist thereafter. That produces a total for future psychiatric costs of $14,165.
Both psychiatrists agree that an allowance should be made for somatic integrative and expressive therapies (such as massage, yoga and mindfulness mediation). Dr Fitch's allowance was $10,400 per annum at a cost of $100 per session at least twice weekly. Given that Ms Atoms was already practicing yoga and mindfulness for her pre-existing scoliosis condition and that is her established pattern which she is likely to have continued in any event, I do not consider it appropriate to allow all of this cost for her lifetime. To the extent that her need for sessions like this has been increased, I will allow one session per week for the next three years, and a global amount thereafter. For the next three years I will allow $15,000 ($100 x the multiplier for three years, 143.6, rounded up). The global amount I will allow for the period thereafter is $30,000. That is a total of $45,000 for these therapies.
The total amount I will allow for future costs, adding the amounts in [1097] ‑ [1100] above, is $174,665. This amount should be apportioned in the same way as I have apportioned Ms Atoms' general damages.

Loss of earning capacity

Following the trial, with my leave and after consultation with the solicitors for the defendants, the solicitors for the plaintiffs filed Further Amended Particulars of Damage dated 6 May 2016. A further amended version of this document was filed at my invitation when I found some errors in the calculations for past loss of superannuation. Unfortunately, the Further Amended Particulars of Damage dated 29 November 2016 still contains errors (including a further error I failed to pick up earlier). I correct these errors below (and these are indicated where they appear).
There is some dispute both as to Ms Atoms' claim for past loss, which has been calculated to 3 May 2016, and her claim for future earning capacity.
The Further Amended Particulars of Damage have stated that 3 May 2016 was selected as a convenient date from which to distinguish past from future loss, since it reflects the anniversary date in the calculation of past loss, and is a date falling between the completion of the trial and the delivery of judgment. Future loss has then been calculated from 3 May 2016.
It has been submitted in the Further Amended Particulars of Damage that although judgment will be delivered after 3 May 2016, to adjust these figures to reflect that fact should, in principle, result in some part of the future loss being added to past loss, so that the ultimate result is the same. In any event, given the nature of the calculations, any difference between the two methodologies is likely to be insignificant and in the nature of tinkering.
It is sensible, in my view, to adopt the date of 3 May 2016 for the purpose of calculations and I agree with the reasoning expressed in the Further Amended Particulars of Damage on this issue.

Past loss of earning capacity

It does need to be remembered that I am assessing loss of earning capacity, and not loss of earnings. An assessment of loss of earning capacity does not strictly turn on a precise mathematical calculation. Earning capacity is an intangible asset and the assessment of damages for its loss is not an exact science. It is governed by considerations of practical common sense in the context of the facts of the particular case: Medlin v State Government Insurance Commission (1995) 182 CLR 116); Montemaggiori v Wilson [2011] WASCA 177 [28] (Buss and Newnes JJA).
Ms Atoms' earning capacity, but for her injuries, is demonstrated by the income she received while was able to manage her employment at the Water Corporation (which varied from time to time), and also her earnings from Parsons Brinkerhoff Australia.
For past loss of earning capacity, Ms Atoms has claimed loss of income for the four‑week period 17 December 2008 ‑ 16 January 2009 when she arranged with the Water Corporation to have four weeks off without pay, calculated as follows:
$1,094.05 x 4 weeks $4,376.20
Plus superannuation at 9% of gross salary or $128.43 per week:
$128.43 x 4 weeks = $513.74
less 15% for administration costs ($77.06) $436.68
$4,812.99
I am satisfied from both the evidence of Ms Atoms and the evidence of the psychiatrists, Dr Fitch and Dr Lee, that Ms Atoms' PTSD was affecting her day to day functioning, including her functioning at work during this time.
After Ms Atoms ceased work at the Water Corporation in July 2010, she was paid out on her contract until 16 November 2010. At the time her income was $87,336 gross ($1,679.54 gross per week; $1,254.54 net per week).
On 17 August 2010 she started part‑time work two days per week with the City of Swan on a 12‑month contract, earning approximately $561.54 gross ($497.54 net) per week. I find that she was not able to work more than on a part‑time basis at this stage.
Ms Atoms has claimed the difference between her earnings at the City of Swan and the amount she would have earned if she had been able to work full‑time from 17 November 2010 to 9 August 2011, taking her earnings at the Water Corporation as the measure of her full‑time earning capacity. The loss for this period in the Further Amended Particulars of Damage contains an arithmetical error in the calculation for superannuation.   I have re-calculated this follows.
$1,254.54 - $497.54 = $757 x 38 weeks                $28,766.00
Plus superannuation at 9%:
$1,697.54 - $561.54 x 9% = $102.24
$102.24 x 38 weeks = $3,885.12
less 15% for administration costs  $3,302.35
$32,068.35
The submission from counsel for the State (on behalf of all defendants) was that this portion of her claim should not be allowed because Ms Atoms' employment at the Water Corporation ended because of a personality or character clash between Ms Atoms and her manager, not psychological or physical issues (ts 1647).
In light of all of the evidence, but in particular the evidence which I have set out in [954] ‑ [957] and [960] ‑ [964], the evidence from Dr Fitch which I have set out in [983] and [984], and the evidence from Dr Lee in [962], [963] and [1022] above, I am satisfied that the PTSD from which Ms Atoms undoubtedly suffered while she was working at the Water Coproration was a material contributing cause to the termination of her employment there. While Ms Atoms might have thought at the time she was working well, clearly her functioning was impaired and her work performance was below capacity. The difficulties Ms Atoms had at the time with her manager may also be explained by the symptoms of PTSD. In my view the claim for the period after the end of her contract with the Water Corporation is reasonable and I will allow it.
From 9 August 2011 to 6 March 2012 Ms Atoms was unemployed. She claims an income loss of $757 per week for this 30 week period. (I have corrected an arithmetical error in the calculation of superannuation).
$757 x 30 weeks $22,710.00
Plus superannuation at 9%:
$102.24 x 30 weeks = $3,067.20
less 15% for administration costs $2,607.12
$25,317.12
These calculations take into account that Ms Atoms was capable of the work she was doing on a part-time basis at the City of Swan, but she left that job to seek more challenging work. Of course, while she believed she was capable of more challenging work, in light of the evidence from Dr Fitch and Dr Lee, her symptoms of PTSD and depression affected Ms Atoms' function and ability to work. Thus the claim for this period does reflect that she had some retained earning capacity for work such as that she had being doing at the City of Swan. I consider that this is reasonable and I will allow it.
In addition to these claims Ms Atoms has made a claim for loss of income as a tutor and casual lecturer at Murdoch University. She has claimed an amount of $30,000, based on $10,000 per year for three years from 2009 to 6 March 2012. Her actual earnings from the University for the year ending 30 June 2009 were $15,856 gross and $12,904 net (exhibit 1, tab 26 and tab 47). That was for half a year's work (from August to December), however, this included her work as a research officer.
The defendants have disputed this claim on the basis of other evidence from Ms Atoms that she had not approached Murdoch University for this additional work (ts 127). That evidence must be looked at in context. She did not approach Murdoch University because she was unwell, her work was poor and in her words 'she let a lot of things go' (ts 127). Thus the reason why Ms Atoms did not approach Murdoch University was because of the injuries she suffered as a result of the events of 2 November 2008.
While I am satisfied that she would have approached the university had she not been injured, that does not mean that she should succeed in this claim. Ms Atoms' claim is in the nature of a claim for loss of a chance based on a hypothetical event. While I can take account of future or hypothetical events in assessing damages, I can only do so in terms of the degree of probability of those events occurring: Montemaggiori v Wilson [30]. The difficulty with Ms Atoms' claim is that there is evidence, in an email from the Employee Services Officer at the University (exhibit 1, tab 47, page 212) that Ms Atoms' jobs were causal positions and there would be no expectation that this work would continue past the end date of her contract (which was December 2008). I also have no information about her likely hours (particularly given she would be working full time for the Water Corporation, and also studying). In my view, the probability that, had Ms Atoms not been injured, she would have both obtained and sustained work lecturing and tutoring for three years is low, although I do not consider it to be so low as to be speculative: Montemaggiori v Wilson; Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, 643. Accordingly, to reflect my assessment of the degree of probability at about 25%, I will allow this claim in an amount of $7,500.
On 6 March 2012 Ms Atoms commenced work at Parsons Brinckerhoff as a full‑time employee earning approximately $120,000 gross or $85,000 net per annum ($2,307.69 gross per week; $1,634.69 net per week). As a result of the problems with her back she ceased working with Parsons Brinckerhoff on 3 May 2013 and has since been unable to find suitable employment.
It is an agreed fact (as set out in the Further Amended Particulars of Damage) that Ms Atoms received an employment termination payment for net amount of $5,091 ($7,432 gross of which $2,341 was tax withheld). Ms Atoms' claim for past loss of income from 3 May 2013 to 3 May 2015 is calculated to take into account this termination payment:
104 weeks x $1,634.69 = $170,000
less the termination payment, $5,091 = $164,909.00
Plus superannuation:
9% of $2,307.69 x 104 weeks = $21,599.76
Less 15% for administration costs ($3,239.96) $18,359.80
$183,268.80
In respect of this part of the claim for loss of earning capacity, the defendants have submitted that Ms Atoms made an informed choice to accept a redundancy package. Her employer could not have sacked her or made her redundant because of her back problems and 'people get sick, have injuries and take time off work' (ts 1650).
In my view these submissions ignore the complexities of Ms Atoms's injuries. While Ms Atoms believed that she would recover from her back injuries (ts 271), she was not just someone who was suffering from back problems. She was suffering from chronic and severe symptoms of PTSD and depression and when she suffered her disc protrusion, this exacerbated her symptoms. The medical evidence from Dr Fitch is that Ms Atoms was not fit for work following the disc protrusion (see [1032] above). The evidence from Ms Atoms was that (ts 204):
Parsons Brinckerhoff lost confidence in - expressed - they expressed uncertainty about my capacity and they expressed a preference to put someone else in - in my place. I was given the opportunity - I was given two weeks' opportunity to come up with other work. As a consultant, we're expected to have a projection of a pipeline of work but that project had been our major focus for quite some time. I had no other pipeline of work that I could give to them and they offered me redundancy.
It was in this context that Ms Atoms accepted the redundancy package. Her acceptance of redundancy is, in my view, explicable by Ms Atoms' mental state ‑ a similar situation to that involving the Water Corporation, as discussed by Dr Lee (see [963] above). I am satisfied, based on all of the medical evidence, that Ms Atoms was not fit for work between 3 May 2013 to 3 May 2015 and I will allow the claim for this period as set out in [1123].
Since 3 May 2015 Ms Atoms has been working as a cleaner receiving $900 per month ($225 per week) (exhibit 15, ts 209 ‑ 210). Ms Atoms therefore claims a past loss of income from 3 May 2015 to say 3 May 2016. (There is an arithmetical error in the first part of this calculation in the Further Amended Particulars of Damage page 6, which I have corrected as indicated by striking through and underlining):
52 weeks x $1,409 ($1,634.69 - $225) ~~$22,200.00~~
$73,268.00
Plus superannuation at 9%:
$2,307.69 - $225 = $2,082.69
9% x $2,082.69 x 52 weeks = $9,746.88
Less 15% for administration costs ($1,462.03) $8,284.85
$81,552.85
In my view, this is a reasonable claim, and I will allow it.
Adding the amounts in [1109], [1113], [1116], [1120], [1122] and [1126] above gives a total of $334,520.11. In the Further Amended Particulars of Damage, the total as calculated is $305,858.37, and the claim has been limited to $300,000.
I should record that there is no claim for interest on past losses, in either the pleadings or the Further Amended Particulars of Damage.

Future loss of earning capacity

Dr Williams was of the opinion that Ms Atoms could not currently physically handle a desk job. She did, however, have the potential with the physical rehabilitation and appropriate psychological care and management. In cross‑examination he said that she had a current work capacity to undertake light sedentary work, but she would need work conditioning and any work would have to start on a part-time basis and work up to full‑time over 6 ‑ 12 months. However this was on the current physical consequences alone (ts 345).
In his report Dr Cairns stated that Ms Atoms was partially incapacitated for work. At trial he explained that reference to partial incapacity would be a combination of both the duties she can perform and the hours she can work. But with suitability of work and improvement in other areas (namely her psychological difficulties) he would anticipate she would be capable of full‑time employment of a suitable light manual nature (ts 375). He was not able to put any timeframe as to when she might become suitable for full‑time work of that nature mainly because of Ms Atoms' psychological difficulties. Dr Cairns expressed the professional opinion that if Ms Atoms' difficulties arising from the experience mitigated, then her physical impairment would not prevent her from working full‑time in suitable employment, but he had no professional ability to predict when the other factors might be adequately addressed and to him that was, as he put it, the winning factor (ts 375).
From a psychiatric point of view I have set out in [1032] above Fitch's views on Ms Atoms' capacity for work as at the time of her second review of Ms Atoms. Dr Lee in her report and in her evidence at trial agreed that while Ms Atoms is enthusiastic for a return to work, she may not have good insight into her ability to work. Dr Lee thought Ms Atoms was improving and while she may take more time than one would expect, if she was going to have more ongoing therapy, one of the goals would be to at least try and attempt to return to work (ts 1542).
In the Further Amended Particulars of Damage there is a claim for two further years in the sum of $167,269.84 and then a 'capital amount' of $300,000 for future loss of earning capacity.
In my view the claim for loss for the first two years is reasonable, based on the fact that Ms Atoms will likely be unable to regain her full‑time working capacity while she undergoes treatment for her PTSD. This is consistent with my assessment of Ms Atoms' claim for special damages, that Ms Atoms will require treatment for her PTSD for between one to three years (the first year requiring the most intensive treatment).

The first two years of future income loss, plus loss of superannuation is calculated using the same figures as for past loss:
$74,200 ($85,000 - $10,800) net per year $148,400
Superannuation at 9.25%
$213.46 x 104 weeks = $22,199.84
Less 15% for administration costs ($3,330) $18,869.84.
In my view, it is appropriate to recalculate these to apply the 6% multiplier for two years (98.5). My calculation is as follows:
$1,409 ($1,634.69 - $225) x 98.5 $138,786.50
Superannuation: $213.46 x 98.5
Less 15% for administration costs $17,872.00
$156,658.50
As to the claimed loss after the first two years of $300,000, it has not been explained to me how this figure has been arrived at, however, in submissions I was informed this was to reflect the issues identified by the medical experts, particularly Dr Williams and Dr Cairns, and it was calculated on the basis of 'a 15% loss after the next two years' (ts 1952). In the Further Amended Particulars of Damage (page 7) the following is stated:
Given the nature of this aspect of the claim, the second plaintiff has not proposed to apply any discount for contingencies. However, if a deduction were to be made, the second plaintiff would invite the court to apply a discount of 5%, which the second plaintiff says is the accepted rate applied in this State. Applying a discount of 5% would reduce this figure to $285,000.
The way this has been approached and the lack of information provided to me as to how the $300,000 has been calculated, has really not been helpful. The defendants, while conceding that some allowance should be made for reduced earning capacity because of the risk of future back problems (ts 1651), have submitted simply that the claim should be less, without providing any calculations or alternative assessment.
I have tested the claimed amount by calculating future loss of earning capacity in the following ways.
First, I have assumed a future earning capacity after the first two years of 85% of her net weekly earnings from Parsons Brinckerhoff of $1,634.69 – in other words, a 15% loss of earning capacity as submitted to me. Thus her net weekly loss is $245.21. I have applied the appropriate multiplier for 22 years (to age 67) less the multiplier for two years (647 ‑ 98.5 = 548.5) and no further discount for contingencies. The 85% assumes that after two years she will effectively regain her pre‑incident earning capacity, but it allows for periods of unemployment and the chance that, while she will generally be able to work on a full‑time basis, she will be unable to obtain similarly remunerative work. This produces a total of $134,498, to which should be added superannuation.
I have calculated future loss of superannuation using the same assumption of a 15% loss. Based on Ms Atoms' gross weekly wage from Parson Brinckerhoff $2,307.69, her gross loss is $346.15 per week.
$346.15 x 9.25% x 584.5 = $18,715
Less 15% for administration costs = $15,908.
Using this first method of calculation produces a total for future loss of earning capacity of $150,406 ($134,498 plus $15,908).
Secondly, I have assumed that after two years, Ms Atoms will be able to work full-time but that because of her injuries she will have to stop work or retire at age 60, rather than age 67. In other words, this assumes that in 15 years hence, Ms Atoms will be unable to work at all. I have used the net weekly earnings of $1,634.69 but applied a multiplier of 125.25. I have arrived at this multiplier by applying the multiplier of 548.5 (see [1140 above]), less 423.3 (which is the multiplier to age 60 or 15 years, 521.8, less the multiplier for two years ie 521.8 – 98.5 = 423.3). This produces a total of $204,745.
In my view this should be discounted for contingencies. Applying what the plaintiffs' solicitors have said is the usual discount 5% produces an amount of $194,508, to which superannuation should be added.
There is, however, authority that for future loss like this, a discount for contingencies of 10% is appropriate: Brocx v Mounsey [2010] WASCA 196 [61] ‑ [70]; Transfield Services (Australia) Pty Ltd v Wieland [2014] WASCA 41 [26] ‑ [28]. I consider it appropriate to apply a discount of 10% in this case to reflect the possibility that even if Ms Atoms is forced to retire at age 60, she will still retain some earning capacity. This produces an amount of $184,270.50, to which should be added superannuation, which I calculate as follows:
$2,307.69 x 9.25% x 125.25= $26,736
Less 15% for administration costs = $22,726.
Less 10% for contingencies = $20,453
Using this second method of calculation produces a total for future loss of earning capacity of $204,724 ($184,270.50 plus $20,453).
There are a number of variables relating to Ms Atoms' lost future earning capacity, however, in my assessment, these calculations best reflect the likely range of future loss for Ms Atoms after the first two years.
In the circumstances I consider the appropriate amount for a capital sum or global amount for future loss of earning capacity after the first two years is by using a midway point in the range I have identified of $180,000. Adding the claimed loss for the first two years from [1136] above produces a total amount of $336,658.50 for future loss of earning capacity.

Summary of Ms Atoms damages

General damages  $136,000.00
Aggravated damages  $20.000.00
Exemplary damage  $10,000.00
Past expenses  $12,978.50
Future expenses  $174,665.00
Past loss of earning capacity  $334,520.11
Future loss of earning capacity  $336,658.50
Total  $1,024,822.11

That is my assessment. I will hear from the parties as to the final amount (in particular, as to the amount for past loss of earnings) which should be entered by way of judgment for Ms Atoms against each defendant (taking into account my apportionments), and the issue of costs.

PART TEN - THE SECOND DEFENDANT'S COUNTERCLAIM

I am not satisfied that Ms Atoms assaulted Officer Clark as he has claimed. I am not satisfied that she grabbed his arm, for the reasons I have set out in [588] and [590] above. Nor am I satisfied that she jumped on his back, for the reasons I have discussed in [662] above. I have found she was close behind his back, however, I am not satisfied that this is a battery. For the reasons I have discussed in [672] and [674], I am not satisfied that this was a voluntary act by Ms Atoms, in the sense that it was an act directed by Ms Atoms' conscious mind.
Accordingly I must dismiss Officer Clark's counterclaim.
It is necessary that I make a provisional assessment of Officer Clark's damages to cover the situation where, if my decision on liability is varied on appeal, the matter need not be remitted back to the District Court for assessment of damages: Kerr v Minister for Health [2009] WASCA 32 [10].
In relation to the first assault, that is Ms Atoms grabbing Officer Clark's arm, there is no evidence of any physical injury.
For the second assault, which relates to the alleged jumping on Officer Clark's back, his evidence was that after the tasering of both Ms Atoms and Dr Cunningham he was tired, out of breath and his muscles were aching (ts 1127). He was struggling to stand upright and he experienced 'local pain' in his shoulders and neck while she was on his back and 'a few minutes afterwards' (ts 1143). However, he did not seek any medical attention. When he was asked by his counsel why he did not do so, the reason he gave was that it was 'a bit embarrassing' that he was not able to deal with the situation. When I queried what he meant by this, he changed his evidence to say 'Well I didn't need medical attention' (ts 1143).
Back at the Fremantle police station after Ms Atoms' and Dr Cunningham's arrest, from my review of the lock-up footage, Officer Clark showed no signs of injury or discomfort and the times he was in the vision I observed him to be moving freely. He also made no complaint of injury when talking to the Custody Officer.
Further, Officer Clark was able to work, creating the entries required on the police computer system to enable the prosecution papers required for a court prosecution, before he finished his shift at 3.00 am. His next shift was in the afternoon of 2 November 2008. There is no suggestion he was unable to work.
I find that Officer Clark was not injured by the second assault.
Officer Clark gave evidence that he had to recount to his superiors what had happened and that when he told them he 'did not feel good about it'. He was under the impression that Ms Atoms should be charged with an assault and he was advised by his superiors that it was easier not to bother doing that. He did not think they were taking him seriously and 'being told not to charge her with assault made me feel a little - you know embarrassed that I couldn't deal with the situation', which he clarified as dealing with the two plaintiffs without having anyone else to assist (ts 1144).
When asked whether his professional colleagues had said anything to him, he gave evidence that he had been phoned up by people who had seen media reports about the case (ts 1144 ‑ 1145).
Officer Clark said that he had lost confidence in being a police officer. He avoided going into Fremantle and said that he could not walk down Essex Street any more. He avoided working in units where he would be put in the same sort of situation and looked for 'investigation‑based positions within the police force' as opposed to positions where there were direct interactions with the public. He had not sought promotion, explaining that while he had been encouraged to apply for detective training school, he did not feel as though he had the confidence or the drive to do that (ts 1145).
Officer Clark then continued in his evidence to say that he felt that he was being persecuted for what happened that night, he felt as though he had no faith in the police system, no faith in the job, and he had no confidence in his own ability as a police officer 'because look where it's ended me'. He agreed that the problem with his confidence arises from this civil action (ts 1150).
He immediately went on to say, however, that it (the problem with his confidence) started from having his arm grabbed or Ms Atoms jumping on his back, that he 'still get[s] nightmares about her doing that', his sleep had been bad, and he still suffered from disturbances with his sleep. He was not able to identify when his nightmares started. He had not sought medical attention for this or his sleep problems, although he had tried herbal remedies. About 18 months before this trial he contacted the Police Department's Health and Welfare section but they had no psychiatrist for him to speak to. He was given a recommendation for someone to speak to but he did not do anything about this.
It is important to note that there is no pleaded claim for loss of income or for psychiatric or psychological injury. This evidence is relied on to support the claim for damages, extending to 'injury to feelings' ie the indignity, mental suffering, disgrace and humiliation that may be caused: Weir v Tomkinson [109].
I had a number of difficulties with Officer Clark's evidence, not least of which is that his evidence about sleep disturbances and nightmares was not something he had raised before and necessitated a late change to his pleadings, which I permitted. Another difficulty I have is that he gave no adequate details about when the nightmares and sleep problems began. Finally, on his own evidence he attempted to speak to a psychiatrist only 18 months before trial (which began in November 2015 and then was part-heard until March 2016, the latter part being when Officer Clark gave evidence), for a problem which allegedly began soon after 2 November 2008. That is a delay of well over five years.
In my view it is more probable that Officer Clark's feelings of distress, humiliation and embarrassment have their origins in one or more of the following:
(a)the fact that he and Office Traynor were unable to deal with the events of the night without assistance;
(b)the dismissal of the Magistrates Court charges against Ms Atoms and Dr Cunningham;
(c)media reports; and
(d)the commencement of these civil proceedings against him, particularly given the evidence I have set out in [1161] above.
With these and the other difficulties I have with Officer Clark's credibility as I have discussed throughout these reasons, I am not satisfied that his feelings of distress and humiliation have their origin in any assault or battery by Ms Atoms.
My provisional assessment of damages for the two alleged occasions of assault and battery is therefore a nominal amount of $500 for each.