Hannam v State of New South Wales (No 9)

[2022] NSWSC 648

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Hannam v State of New South Wales (No 9) [2022] NSWSC 648

Hearing dates:

9, 10, 11, 12, 16, 17 May 2022

Decision date:

23 May 2022

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

(1)   Judgment for the defendant.

(2)   Subject to (3) below, order the plaintiff to pay the defendant’s costs of the proceedings.

(3)   If either party wishes to apply for a different costs order, he or it (as the case may be) may do so, as long as a written application, together with any evidence and submissions in support of the application, is made to my Associate within seven days, whereupon further directions as to a response will be made, with a view to determining costs on the papers.

Catchwords:

TORTS — Trespass to the person — Assault — whether police conduct caused plaintiff to fear police and attempt to flee

TORTS — Trespass to the person — whether Civil Liability Act 2002 (NSW) excluded by operation of s 3B(1)(a) — where intent was to cause injury not subject of claim

TORTS — Trespass to the person — Battery — Defences — whether actions constituting battery were lawful under various statutes — Crimes Act 1900 (NSW), Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), Mental Health Act 2007 (NSW), Police Act 1990 (NSW) —where actions permitted under statute — where defences made out

TORTS — Trespass to the person — Battery — Defences — defences under Civil Liability Act 2002 (NSW) — intoxication, no award to criminals, self-defence

NEGLIGENCE — Duty of care — where no duty owed by defendant toward plaintiff

NEGLIGENCE — Defences — Illegality — use of illicit substances

NEGLIGENCE — Defences — Intoxication — illicit substance

NEGLIGENCE — Defences — Self-defence — where defendant attempting to protect plaintiff, bystanders and police

NEGLIGENCE — Defences — Voluntary assumption of risk — use of illicit substances

DAMAGES — where plaintiff self-employed tradesperson — where no evidence of past earnings or typical earnings — where plaintiff’s proposed use of average weekly earnings unsuitable

DAMAGES — where plaintiff sought aggravated and exemplary damages — where award excluded by Civil Liability Act 2002 (NSW), s 21 — where award not justified in any event even if not statute barred

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 3B, 5, 5L, 5O, 5R, 13, 16, 18, 21, 47, 48, 50, 52, 54

Civil Liability (Non-economic Loss) Amendment Order 2021 (NSW)

Crimes Act 1900 (NSW), ss 31A, 574B

Drug Misuse and Trafficking Act 1985 (NSW), s 12

Evidence Act 1995 (NSW), s 69

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 230

Law Reform (Vicarious Liability) Act 1983 (NSW), s 9B(2)

Mental Health Act 2007 (NSW), ss 22, 81

Police Act 1990 (NSW), s 6

Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:

Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542

Blatch v Archer (1774) 1 Cowp 63

Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320

Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132

Dickson v Northern Lakes Rugby League Sport and Recreation Club Inc (2020) 103 NSWLR 658; [2020] NSWCA 294

Gates v City Mutual Life Assurance Society Limited (1986) 160 CLR 1; [1986] HCA 3

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Laws v GWS Machinery Pty Ltd [2007] NSWSC 316; (2007) 209 FLR 53

Lim v Cho [2018] NSWCA 145

Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36

Manly Council v Byrne [2004] NSWCA 123

New South Wales v Klein [2006] NSWCA 295

New South Wales v Tyszyk [2008] NSWCA 107

Owlstara v State of New South Wales [2020] NSWCA 217; 285 A Crim R 53

Perez v Reynolds [2020] VSC 537

Pham v Commissioner of Victim Rights [2019] NSWSC 1060

Ranger v Turner [2007] NSWCA 162

State of New South Wales v Ibbett (2005) 65 NSWLR 168; [2005] NSWCA 445

State of New South Wales v McMaster (2015) 91 NSWLR 666; [2015] NSWCA 228

Stuart v Kirkland-Veenstra (2009) 237 CLR 215; [2009] HCA 15

Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35

Thompson v Vincent [2005] NSWCA 219

Weaver v Ward [1792] Eng R 2772; (1616) Hob 134; 80 ER 284

Category:

Principal judgment

Parties:

Andrew Robert John Hannam (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
J Maconachie QC / P Tierney (Plaintiff)
M Hutchings / R Coffey (Defendant)

Solicitors:
Ken Cush and Associates (Plaintiff)
Wotton + Kearney (Defendant)

File Number(s):

2019/51618

Judgment

Introduction

1. By further statement of claim filed on 18 November 2020, Andrew Hannam (the plaintiff) claims damages against the State of New South Wales (the defendant) for wrongs alleged to have been committed against him by officers of the NSW Police Force (the police) on 20 February 2016, for which it is accepted that the defendant is vicariously liable: Law Reform (Vicarious Liability) Act 1983 (NSW), s 9B(2). The plaintiff alleges that the actions of police caused him to jump or fall four metres from the balcony of a fourth-floor apartment in Neutral Bay to a landing on the third floor, thereby sustaining substantial injuries to his brain, spine and legs.

2. The plaintiff seeks damages on the basis of the torts of battery, assault, or, in the alternative, the tort of negligence. The cause of action in battery relies on the allegation that the plaintiff was struck by at least one probe of a taser and fell as a result. The cause of action in assault relies on the allegation that the plaintiff fled over the balcony railing out of fear engendered by police. The cause of action in negligence relies on police allegedly “crowding” towards him on a balcony and firing a taser at him, which is said to have caused him to jump from the balcony.

3. Many of the references to time in the evidence are expressed in accordance with the 24-hour clock and some of the evidence shows the time not only in hours and minutes but also in seconds. In the interests of the reader, I shall express time by reference to “am” or “pm” and exclude seconds (which will be rounded up or down).

The events of 20 February 2016

The Oaks Hotel, Military Road, Neutral Bay

4. On Saturday 20 February 2016, the plaintiff, who was working as a builder, had finished renovating a unit at North Sydney. When he had completed the task, he called a friend, Antony Manion (whom the plaintiff called “Anto”), who invited the plaintiff to join him at the Oaks Hotel, Military Road, Neutral Bay. The plaintiff drove to the Oaks Hotel. When he arrived, there were about twelve people in Mr Manion’s group, including Anthony Glynn, Mr Manion’s cousin; Mr Glynn’s sister, Michelle Glynn (whom the plaintiff called “Shelley”), and various members of Mr Manion’s family. Sarah Graham, Mr Glynn’s partner, had recently had a baby whom they brought to the Oaks Hotel to be introduced to extended family and friends. The plaintiff’s recollection was not precise but he thought that he arrived at the Oaks Hotel at about midday or 1pm.

5. As at 20 February 2016, the plaintiff had a girlfriend, who was not with him on that occasion. He drank several schooners of Victoria Bitter (VB), a full-strength beer, in accordance with his usual practice (see below). He had lunch with Mr Manion and others in the group. The plaintiff did not recall how many schooners he had drunk at the Oaks Hotel but accepted that he might have drunk one or two schooners an hour and that he probably drank more than six schooners at the Oaks Hotel.

The plaintiff’s pre-incident history of drug and alcohol consumption

The plaintiff’s pre-incident consumption of alcohol

6. The plaintiff’s usual practice on a Friday night or a Saturday, when not accompanied by a girlfriend, was to drink several schooners of VB. He agreed that his practice was to drink 5, 10 or 15 schooners “if [he] didn’t meet a lady leading up to it”. He accepted that if he did not have a girlfriend, he would be going out to “meet a woman”. The plaintiff’s father, Robert Hannam, accepted that the plaintiff engaged in “binge drinking” on occasions.

7. The plaintiff had previously been detected drinking and driving by the police. On one such occasion, on 8 April 2012, he had a motor vehicle accident while attempting to escape from police. This resulted in significant physical injuries. He was admitted to St George Hospital with fractures to both hips, his femur, sternum, ribs and left foot. As a consequence of these injuries, his ability to work was affected for about two and a half years, after which he said that he was “as good on the tools” as he had been before the accident.

The plaintiff’s previous experience of MDMA and other illicit drugs

8. As at 20 February 2016, the plaintiff was familiar with the effects of MDMA (ecstasy), having “snorted” it himself in powder form (from a capsule or tablet) in the presence of others on prior occasions. The plaintiff’s experience was that snorting MDMA produced an immediate effect and tended to make users euphoric, emotional and generous to others, which might lead them to embrace others. It also tended to reduce sensations of anxiety or concern. When asked what he knew about the effects of MDMA when combined with alcohol, the plaintiff responded that he had never thought about it before but agreed that the possibilities were “open”. The plaintiff had also taken ice (crystal methamphetamine) as a performance enhancer when he was under pressure to perform commercial jobs within a deadline.

9. Although he denied that he consumed illicit drugs “regularly”, the plaintiff also used marijuana, speed (another amphetamine) and cocaine. In his youth, the plaintiff’s illicit drug use had also included steroids to assist in weightlifting. From the age of about sixteen, while he was still at school, he had taken speed, at least when attending rave parties. The plaintiff’s father agreed in cross-examination that the plaintiff’s use of illicit drugs was a constant feature of his life.

10. The plaintiff accepted that, on 26 March 2011, he had been admitted to Royal North Shore Hospital following consumption of alcohol, ice and Xanax. He accepted that he had given a history that he had been consuming ice every day in the two days prior to his admission. These admissions were supported by the hospital’s discharge summary which recorded:

“[The plaintiff] presented to RNSH [Royal North Shore Hospital] after being found at home by friends confused and with decreased level of consciousness. That night he had consumed a cocktail of alcohol (unable to quantify amount), ice, and Xanax.

[The plaintiff] had been using ice continually in the preceding 2 days. We were not able to elicit an event that precipitated this drug binge (after several months of abstaining from ice). He reported increased anxiety and agitation after taking these drugs and so took several alprazolam [Xanax] in an attempt to counteract these effects. He was unable to quantify the amount of alprazolam however 2 empty bottles were found in his house (50 x 2mg tablets per bottle).”

The detour to Tim’s residence at Neutral Bay

11. Later that afternoon, at around dusk, the plaintiff walked with others to Neutral Bay to see Tim (whose last name is not revealed by the evidence), who was a friend of Ms Glynn’s. Although Tim was not at home, Ms Glynn, who had a key to Tim’s apartment, let them in. While he was at Tim’s place, the plaintiff continued to drink, either beer or spirits, he could not recall which. The plaintiff could not recall how many drinks he had consumed at Tim’s place or for how long he had stayed there, although his recollection was that it was “not too long”.

The journey from Tim’s residence to Mr Manion’s residence

12. Subsequently, the plaintiff and others walked to Mr Manion’s residence, which was also in Neutral Bay (Unit 1). In an alleyway between Tim’s place and Unit 1, they met three men, whom the plaintiff recognised as Ms Graham’s friends from Pennant Hills High School. At least two of the three men were accompanied by a partner. Although the plaintiff regarded the members of this group as his friends or acquaintances, he said that he had not seen Mr Glynn, or those associated with him, as much lately as “[l]ots of people have had babies and more kids and their lives have moved on … and they’re pretty busy.”

13. Mr Manion invited the three men and their partners to come back to Unit 1 for a drink. The three men brought a carton of beer with them.

What occurred at Unit 1

The design, dimensions and orientation of the apartment and its balcony

14. Unit 1 was the corner apartment on the fourth floor of a unit block at the intersection of Military Road and Young Street. It had a small kitchen and a large living area.

15. There was a balcony which could be accessed from inside the apartment. There was a green wooden pergola which jutted out into the balcony area. Below the southern end of the balcony, Military Road ran in a generally east-west direction. Below the eastern end of the balcony, Young Street ran in a generally north-south direction. The drop at the Military Road end of the balcony was sheer but the drop on the Young Street side of the balcony was shallower because of the balcony which jutted out from the unit below on the third floor of the building. There was a barrier around the balcony which comprised about seven layers of bricks, one layer of tiles (which formed the edge of the roof of the unit below and a metal railing which was affixed to the bricks. The evidence does not establish the height of the railing. However the unchallenged evidence of police officers, including Probationary Constable Herold, was that the top of the railing was above the plaintiff’s waist. The plaintiff was 5’10” tall.

16. In the outer corner of the balcony (above the intersection between Military Road and Young Street), there was a rectangular picnic table, made of redgum, which was 1.8m in length and 780mm high. The table surface comprised five planks which were fastened with screws to the structure, to which two bench seats were also attached. The table was oriented at right angles in the corner, such that its long side was parallel to Young Street and its shorter side was parallel to Military Road.

The interaction between the three men and the plaintiff at Unit 1

17. Following his arrival at Unit 1, the plaintiff continued to consume alcohol. He observed the behaviour of the three men, which he regarded as “unruly” and “disrespectful” to Mr Manion. He was worried that the three men were spilling drinks on Mr Manion’s new furniture. Although he had seen the men on a number of similar occasions before, he had never seen them behaving in such a fashion.

18. At some stage, the plaintiff took the containers of beer from the carton, which the three men had brought with them, and started to put them in the fridge. While he was doing this, one of the three men grabbed the plaintiff by the scruff of his neck, pulled him back and started to hit him across the face and head with the empty beer carton. The plaintiff explained that this was something which really good friends did to each other as a joke but when others did it, it “wasn’t right”. When the man hit him with the beer carton, the plaintiff was “shocked”. It made him “quite angry” as he was not expecting it and regarded it as “offensive”.

19. In response, the plaintiff wrestled the man who had hit him to the ground and pinned him down under his body. At that time the plaintiff weighed about 105kg. The man he pinned down was about the same height but was about 20kg lighter than the plaintiff. When the man’s partner intervened to ask the plaintiff to get off the man he had pinned down, the plaintiff complied with her request.

The plaintiff’s drug-taking on 20 February 2016

20. At about that time, the plaintiff asked one of the three men why they were behaving so wildly. One of the men told him that they had taken MDMA. The plaintiff asked whether he could have some too. They agreed.

21. Although the plaintiff accepted in cross-examination that the behaviour he had observed in the three men was inconsistent with what he understood to be the usual effects of MDMA, he did not think, at the time or until cross-examination, about the inconsistency or what the reasons for it might be. I accept that it did not occur to the plaintiff that the combination of MDMA and alcohol might produce a different effect from MDMA when taken without alcohol.

22. At that time, only the three men and the plaintiff were in the kitchen. The dimensions of the kitchen were such that there was no room for anyone else in that room. One of the men put a plate on the opened oven door and placed the powder onto it for the plaintiff to snort.

23. As soon as the plaintiff snorted the powder, he felt that people were laughing at him. The drug made him feel “angry”, “not right”, “wrong”, “uncomfortable” and “off”. He recalled saying to “no one in particular”, “I didn’t sign up for this.” He felt that he had been given “something else” which was not MDMA and that he had been “stitched up”. Whatever he took on this occasion made him “angrier than [he] had ever felt before”. MDMA had not previously made him angry. The plaintiff agreed that, before he snorted the drug, he had no way of knowing what it was.

The events on the balcony

The plaintiff’s recollection of what happened on the balcony

24. The plaintiff recalled standing up after having snorted the drug and then being on the balcony. He had no recollection about what happened in between those times.

25. The plaintiff had a recollection of two incidents on the balcony after he had inhaled drugs. The first incident was that another man (a fourth man), who was a friend of the three men he had encountered in the alleyway, had stood “quite close” to him and had spoken to him in an aggressive way. He recalled that, at that time, someone hit him on his right side underneath his ribs but that he did not think it was the fourth man. He said that the blow winded him and lifted him off his feet. He did not think that the fourth man was a police officer. Indeed, he confirmed that he did not recall seeing the police at all that night.

26. The plaintiff also recalled a second incident on the balcony when he tried to hug Ms Glynn and she pushed him away, walked away from him and “didn’t want a bar of it”.

27. The plaintiff has little, if any, recollection of the events immediately preceding his going over the balcony rail. He did not recall the police being there or what precipitated his going over the rail. I accept that he could not recall anything beyond that about which he gave evidence.

The Triple-0 call

28. Shortly before midnight, Ms Glynn called Triple-0. The Triple-0 call lasted for a total of about nine minutes. Ms Glynn told the operator that about 10 people at the residence were “massively concerned” and “really worried” about the plaintiff because he “completely intention[ally]” had some drugs (MDMA) and was threatening to throw himself off the balcony. Ms Glynn told the operator that the plaintiff was “semi-violent” in the sense of being “just not there”, that he was “completely off the planet” and “being a fucking weirdo”. She also told the operator that friends were out on the balcony trying to pacify him “but we’re not trusting this anymore”. Ms Glynn told the operator that he had been “forced into a mental institution”, that he has “issues”. She described the plaintiff as a “big boy” who weighed about 110kg, and who could be expected to become agitated when the ambulance came. She also told the operator that the plaintiff would be “antagonistic”.

29. When the operator told Ms Glynn that she would also arrange for the police to come, Ms Glynn thanked her and said:

“We actually need that [the police] because we’re with my cousin [Mr Manion] and he is really good friends with him and we’re trying to pacify him and he’s just not calming down.”

30. The recording of the Triple-0 call indicated that when Ms Glynn told others at the party that the police were coming, there was some opposition. Ms Glynn explained to those present at the gathering that it was necessary because the plaintiff was “fucking out of control”. When the operator asked her whether the plaintiff was “very agitated”, Ms Glynn responded that there was “no getting through what we’re talking to him about”. Ms Glynn told the operator that two women would wait for them downstairs to let them into the building.

The involvement of police

31. The Triple-0 operator sent messages to the ambulance and the police while she was still on the phone to Ms Glynn. At 11.56pm, the following alert was sent out on the Computer-Aided Dispatch system (CAD system) to the ambulance and the police:

“… You are responding to a patient who has abnormal or suicidal behaviour. The patient is a 29-year-old male, who is conscious and breathing. Jumper (threating) (Violent). Psychiatric / Abnormal Behaviour / Suicide Attempt. Caller Statement: TAKEN DRUGS THREATENING TO JUMP BALCONY. 1. It’s not known but possible that he is violent. 2. He does not have a weapon. 3. The patient is inside the same structure. 4. He is presently threatening to jump. 5. He is not completely alert (not responding appropriately). 6. There is not a CAT team (doctor) in attendance. …”

32. At 11.57pm, a call went out on the police radio for:

“… Harbourside cars to assist the ambos. They’ve got a 29 year old male taken drugs and threatening to jump off the balcony. Harbourside car, any car in the vicinity.”

My findings of what occurred

33. The following narrative is based largely, except where otherwise indicated, on the evidence of Constable Goulding, which I accept and which is substantially corroborated by the evidence of other officers. I will refer to police officers by their rank at the time of the incident.

34. The call was classified as “priority 2”, which required an urgent response. There was a response from a number of Harbourside (HS) units. HS 37, which comprised Constable Aaron Dennis and Probationary Constable Simon Herold (who was then 6 months into his probationary period of 12 months) was the first to respond.

35. Probationary Constable Herold was armed with an Axon model X26E Taser X00-673320 (the taser). The taser consisted of a capsule with two containers each of which housed a probe with a barb on the end to be fired into the body of the target. The top probe was designed to project straight out from the taser, whereas the bottom probe was designed to project 8 degrees down from the horizontal. Each probe was attached to the taser by a 7.62m wire. After firing, the probes remained attached by their wires to the taser.

36. A taser is a weapon which enables two barbs attached to wires to be fired at a person. When the barbs make contact with the person’s body, an electrical circuit is completed. The charge which passes through the person’s body results in Neuro Muscular Incapacitation (NMI), which causes the person to fall to the ground. A taser is, thus, a significantly less harmful weapon than a gun, because it effects only temporary incapacitation.

37. Probationary Constable Herold had performed a “spark test” on the taser just before starting his shift to confirm that it was safe and operating. He signed out two taser cartridges in accordance with what he understood to be standard operating procedure. Constable Dennis was not armed with a taser.

38. The taser, which Probationary Constable Herold was carrying, was fitted with an audio-visual recorder. According to the manual, the recorder is activated any time the safety switch is in the up (armed) position. The purpose of the recorder, according to the manual tendered by the plaintiff, is to “[allow] officers to capture vital information prior to, during, and after the deployment or potential deployment of the [taser].”

39. At 11.57pm, HS 35, which comprised Constable Benjamin O’Brien and Probationary Constable Sean Chen responded, as did HS 36, which comprised Constables Goulding and Tran. Each of these officers had commenced his shift at about 7pm on 20 February 2016. This shift, the night shift, ended at 7.30am on 21 February 2016.

40. HS 131 also responded, as did HS 16, which comprised Constable Alison Johnson and Probationary Constable Michael Ford.

41. When Constables Goulding and Tran arrived outside the unit block at about 12.02am, Constable O’Brien and Probationary Constable Chen (who had arrived at 12.00am) as well as Constable Dennis and Probationary Constable Herold (who had arrived at 12.02am) were already there. They were speaking to a woman who introduced herself as Fiona Herriott. I accept Probationary Constable Herold’s recollection of what occurred (which appears from his answers in a directed interview which was conducted about 24 hours after the incident) that Ms Herriott had told police that:

“[The plaintiff]’s an extremely big man, strong looking and he is aggressive and he’s been on MDMA. He thinks he’s done some bad acid but it’s definitely MDMA.”

42. When Ms Herriott saw the six police officers, she asked, “is that all we got?”. Constable Goulding, who, as a Constable 5, was the most senior officer there, considered that six officers would be sufficient. However, Ms Herriott’s question led him to call the police radio operator. The call is recorded in the police radio log as follows:

“HS 35:   … can I just check how many police cars are coming here? We’ve just been told this bloke’s fluffin’ huge and extremely violent. We’re going to need cars.”

43. At about this time, Senior Constable Aaron Gaskell was performing stationary speed enforcement duties with Constable Stephen Smith on Berry Street, North Sydney as part of the Mosman Highway Patrol unit. When they heard the further request for police assistance on the police radio, they drove to the unit block, where Senior Constable Aaron Gaskell saw six police officers on the footpath speaking to a woman.

44. Ms Herriott used a pass to take the first six police officers up in the lift to Unit 1. At some stage, Ms Herriott said, in their presence, that the plaintiff had tried to jump off the balcony on the Military Road side but that the guests at the party had managed to coax him back. She also told them that he had taken MDMA and that the plaintiff thought that he might have taken “bad acid”.

45. As there was insufficient room in the lift for Senior Constable Gaskell and Constable Smith, they entered the fire stairs and went up to the top level. One of the police officers who had come up in the lift, let them through the fire stair exit and out into the unit.

46. When Probationary Constable Herold entered the unit, he heard Constable O’Brien say, “Go in hard”. Probationary Constable Herold disregarded this comment as he considered an assessment of risk needed to be undertaken before any such decision could be made.

47. When Constable Goulding entered the unit, there were about twenty people present at a “house party”. Most of them were in the “undercover entertainment area”. Police had to “make [their] way through because they weren’t too helpful”. The guests were huddled in a group trying to keep away from the plaintiff. Some of the guests were swearing at the police officers as they passed through the unit to the balcony, where the plaintiff was standing by himself. Constable Goulding asked the guests for the plaintiff’s name and was told it was “Andrew”. He passed this information on to Constable O’Brien.

48. The plaintiff, who was in the corner of the balcony behind the picnic table, was yelling, screaming and swearing. Constable O’Brien went out onto the balcony and stood next to the Young Street side of the balcony, facing the plaintiff in the direction of Military Road. Constable Tran was near him on that side, but was further away from the plaintiff. Constable O’Brien started to talk to him in a loud, calm voice and said (as recalled by Probationary Constable Herold), “Hi, what’s your name?” and “Are you okay tonight?”

49. It was Constable Goulding’s impression that Constable O’Brien was trying to calm the plaintiff down so that he understood that he was not in trouble and that the police were there to help him out. Constable Goulding saw that Constable O’Brien was moving slowly towards the table which separated him from the plaintiff.

50. Constable Goulding decided to position himself near the Military Road side of the balcony because he was worried that the plaintiff might try to jump off that side. He asked Probationary Constable Herold to go with him because he was wearing a taser. Constables Dennis and Chen also came with Constable Goulding and positioned themselves near the Military Road edge of the balcony, keeping their distance from the plaintiff.

51. At about this time, Senior Constable Gaskell and Constable Smith came into the unit and saw the plaintiff out on the balcony. At that time, the plaintiff was facing north (in the direction of Constable O’Brien), his back was towards Military Road (closer to where Constable Goulding, Probationary Constable Herold and other police officers were), his right side was close to Young Street and his left side was “facing” Senior Constable Gaskell and Constable Smith.

52. Probationary Constable Herold understood that his superior officers were implementing a “contain and negotiate” strategy. At about this time, Constable Dennis said to Probationary Constable Herold words to the following effect:

“If he [the plaintiff] goes to do anything, you need to use your taser on him.”

53. Constable Dennis instructed Probationary Constable Herold to unholster the taser. When Probationary Constable Herold did so, he held the taser near his leg in an attempt to hide it from the plaintiff. He did not turn it on. He had been instructed that the standard procedure was that a taser ought be activated as soon as it was unholstered but considered the departure from this procedure to be warranted since he did not want to inflame the plaintiff and wanted, by unholstering it, to reduce his reaction time if he needed to use it. He thought that the taser might be able to prevent the plaintiff from jumping over the balcony. His understanding, based on his recent training, was that a taser causes NMI which results in the target falling to the ground.

54. Senior Constable Gaskell saw that the plaintiff was looking in a northerly direction along Young Street in the direction of Constables O’Brien and Tran. He did not turn left and look down the Military Road side of the balcony towards the location where the other police officers, including Senior Constable Gaskell were standing.

55. Senior Constable Gaskell could hear Constable O’Brien but could not see him. He could also hear the plaintiff who was “yelling and flailing his arms”. His words did not make sense to Senior Constable Gaskell and “did not seem to be connected or responsive” to what Constable O’Brien was saying to him.

56. Senior Constable Gaskell saw a man come out of the unit on his left onto the Military Road side of the balcony. The man yelled out to the plaintiff, “C’mon, man, just let them take you home!” Immediately, the plaintiff became more aggressive in response. I note that neither Constable Goulding nor Probationary Constable Herold mentioned this intervention in their evidence. I regard this circumstance as reflecting the fact that they were both engrossed in watching the plaintiff and working out whether it was necessary to use the taser. By contrast, Senior Constable Gaskell was further back, closer to the door to the unit and in a better position to survey the whole of the scene from his vantage point at the rear.

57. The plaintiff, who was “very angry” and “very abrupt” and “waving his arms”, picked up the picnic table and either slammed it down or let it bounce back down, which caused a loud noise. Probationary Constable Herold recalled the plaintiff clenching his fists and pacing around. The plaintiff took hold of at least one of the planks in the table top and dislodged it from the table. Constable Goulding, who was then about 4 or 5m away from the plaintiff, was impressed by the plaintiff’s strength. He could not determine whether the plaintiff was usually that strong or whether his demonstrated strength was a consequence of the substances he had ingested. It was Constable Goulding’s impression that the plaintiff was trying to flick the planks in Constable O’Brien’s direction.

58. At about that time, the plaintiff turned 90 degrees to his right to face Young Street, which meant that he had his back to Probationary Constable Herold. Probationary Constable Herold was concerned that this movement indicated that the plaintiff was preparing to jump over the balcony railing. Constable Goulding shared Probationary Constable Herold’s concern. Although Constable Goulding did not recall hearing the plaintiff say that he was going to jump he recalled that this information had been communicated by the “party guests” to the police when they arrived at Unit 1.

59. Constable Goulding heard the plaintiff say “fuck this” and saw him put one foot on the seat of the table on the side closest to Young Street. At this time Constable O’Brien said words to the effect, “Go in, get him, get him”.

60. Probationary Constable Herold had, in any event, decided to activate the taser because he was worried that the plaintiff was about to jump. He moved the safety switch from the “down” position (where it is in safe mode) to the “up” position (the armed position), pointed the red dot just above the plaintiff’s waistline at his back and squeezed the trigger to discharge the probes in an attempt to stop the plaintiff from leaping over the balcony by immobilising him. It was the first time Probationary Constable Herold had ever used a taser in the field although he had been trained as to its use and was certified to use it. When he pulled the trigger, nothing happened. He knew immediately that the taser had not operated properly.

61. When Constable Goulding realised that the taser had not operated correctly, he charged at the plaintiff to try to stop him from going over the balcony railing by grabbing him but the plaintiff “dove” over the balcony railing. While the plaintiff was diving the taser actually went off “properly”. I accept the truth of what Constable Goulding said in a recorded interview the following day: “he’s just rolled over basically head first over the balcony” and “he’s just sort of leapt head first as if he’s diving into a swimming pool basically without his arms”. At that time, he was aware that the prongs of the taser flew straight past him. He considered that the prong of the taser actually hit the plaintiff as he was already going over the balcony railing. I accept his evidence:

“He was already falling when the taser actually fired.”

62. Probationary Constable Herold also saw the plaintiff go over the railing. He did not see, or notice, the position of the plaintiff’s feet before he went over. He described the plaintiff’s movements as a “swan dive” and said “he jumped up, using the power in his legs and went over the railing.” In his directed interview (see below) he could not recall the position of the plaintiff’s hands. When the plaintiff did not show any sign of NMI, Probationary Constable Herold realised that at least one of the prongs had failed to hit the plaintiff’s body to complete the circuit.

63. Senior Constable Gaskell described the plaintiff as having put his hands in a triangle above his head and interlocked his fingers as if he was going to dive into a pool. The plaintiff jumped but, notwithstanding that he appeared to put a lot of effort into the jump, was not able to jump very high. However, it was enough for his gut to clear the railing. Because of the momentum and the change to his centre of gravity, he fell forward and landed on the 45 degree incline of the tiled roof next to the balcony and then slid over the edge. At that point, Senior Constable Gaskell ran towards the plaintiff, whose legs were up in the air and whose body was sliding towards the edge of the roof, to try and stop his fall by grabbing his legs. He was unable to do so. Senior Constable Gaskell watched him fall out of sight. When he reached the edge of the balcony, he could see the plaintiff lying on the balcony below.

64. Mr Hutchings, who appeared with Mr Coffey for the defendant, accepted that it was not possible to determine from the evidence where the plaintiff’s centre of gravity was when the taser prong hit him in the right upper leg.

65. Subject to one matter, I prefer Senior Constable Gaskell’s evidence as to the plaintiff’s stance immediately before his descent to the descriptions given by other police officers who were more closely involved in trying to deal with the situation. I note that Senior Constable Gaskell, who was further back from Probationary Constable Herold, did not even appreciate at the time that a taser had been discharged as he neither saw nor heard it. I accept Constable Goulding’s evidence that the plaintiff put one foot on the seat of the table before he hoisted himself over the balcony railing. Thus, the “jump” was assisted by this manoeuvre. Senior Constable Gaskell could not see the plaintiff’s feet at this time and, accordingly, did not see that he had done this.

66. I regard the small inconsistencies between the officers’ versions (including as to whether the plaintiff had his arms by his side or whether they were stretched out in front of him) as explicable by their different vantage points as well as the well-known difficulty of eye-witnesses recalling detail, particularly in the course of a highly-charged traumatic event which lasts for a very short time. I do not consider that these inconsistencies substantially affect the reliability of the evidence set out above. Each of the officers was required to attend mandatory counselling after the event. Senior Constable Gaskell confirmed that it was the first and only time he had ever seen anyone jump off a building.

67. After the plaintiff had gone over the balcony railing, Probationary Constable Herold pointed his taser towards where the plaintiff was lying on the balcony below. The taser footage depicts this scene.

Police officer’s views as to the use of the taser

68. Constable Goulding was concerned about the risk of someone (the plaintiff, a police officer or one of the guests at the party) going over the balcony if the police were to go “hands on”: that is, physically restrain the plaintiff. He said that, had he been wearing a taser at the time, he would have used it because he considered that it provided the safest tactical option. I accept his evidence, including the following:

“Not only was the plaintiff under the influence of illicit drugs, he was extremely large and by lifting the table in the fashion that he did, I considered that he was strong and there was a risk that the attending police officers and/or the plaintiff could get injured.”

69. I accept Probationary Constable Herold’s evidence that he did not intend to injure the plaintiff and that he had decided to use the taser to protect the plaintiff’s safety and that of police officers and guests in the unit. I accept that he considered the taser to be the only viable option because the “OC spray” would have dissipated too readily in the large, windy outdoor area of the balcony and a baton would not have been effective because it would have been difficult to get close enough to use it.

The plaintiff’s submissions about what occurred

70. Mr Maconachie QC, who appeared with Mr Tierney for the plaintiff, submitted that, when police arrived:

1. the plaintiff was standing alone on the balcony in no apparent distress and exhibiting no signs of agitation or disturbance;

2. the police decided, early on, that a taser would be the most effective tactical option to contain the situation;

3. Probationary Constable Herold, a junior officer with limited experience, was permitted to use a taser to effect that tactical option and to do so on his own initiative;

4. the plaintiff was in an elevated place from which he might, as occurred, fall from a height; and

5. police protocol prohibited the use of a taser in such situations.

71. Based on the factual findings above and the reasons given below, I am not satisfied of any of the matters in (1)-(5) above.

72. As to (1), although the plaintiff was standing alone on the balcony, he was very distressed when police arrived. He was pacing around, waving his hands and swearing. He was extremely agitated and his fists were clenched. He was alone on the balcony because the guests at the party were fearful of him.

71. As to (2), the police had not decided on any particular tactical response until the taser was actually used, although it was contemplated from the time police came out onto the balcony that it ought be available as an alternative, which was why Probationary Constable Herold, who had a taser, was asked to cover the Military Road side of the balcony.

72. As to (3), although Probationary Constable Herold had only been a police officer for six months, his training was recent. Other more senior officers, such as Constable Goulding, had not used a taser before either. Constable Goulding’s unchallenged evidence was that Probationary Constable Herold was qualified and certified to wear and use a taser.

73. As to (4), although the balcony itself was elevated, the railing was above the plaintiff’s waist height. As long as the plaintiff’s centre of gravity was on the balcony side of the railing, he would fall vertically onto the floor of the balcony unless the force of his momentum over the balcony exceeded the force of gravity. I do not regard the document entitled “Use of Conducted Electrical Weapons (Taser)”, issued by the police’s Major Events & Incidents Group (the Taser Protocol), as being intended to prohibit the use of a taser in a case such as the present. The Taser Protocol is addressed later in these reasons.

74. For these reasons, I am not satisfied that the prohibition in (5) applied. Further, the Taser Protocol allowed for a discretion to be exercised. Having regard to the limited options available and the risk of death or serious harm to the plaintiff if he went over the railing, the taser was an available and appropriate option in all the circumstances.

After the plaintiff’s descent

77. At 12.06am, the ambulance log recorded a message from HS 35: “M JUMPED OFF ROOF”.

78. At about 12.08am, the police log recorded HS 51 saying:

“… the male[’]s just jumped off the roof at this address in Neutral Bay … he’s only gone about two floors down and landed on another balcony however he appears to be out cold.”

79. Constable Goulding estimated that police were on the balcony for fewer than two minutes before the plaintiff jumped. His estimate is consistent with the evidence referred to above about the time outside on the footpath, going up in the lift to Unit 1 and passing through the unit before coming out onto the balcony.

80. There is a significant amount of evidence about the attempts made by police and ambulance officers to gain access to the plaintiff after he went over the balcony railing of Unit 1. However, as no complaint is made about this aspect of the conduct of the police it is not necessary to detail it. It is sufficient for present purposes to note that Constable Dennis jumped down onto the lower level where the plaintiff had landed to be with him while they waited for medical assistance. Probationary Constable Herold saw Constable Dennis remove one barb from the back of the plaintiff’s upper leg or buttocks. Probationary Constable Herold found the second barb on the ground of the balcony as the wire was still attached.

81. It was submitted on behalf of the plaintiff that the audio recording associated with the taser recorded, at 3.35 on the time setting, that Constable Dennis said, when he was with the plaintiff on the lower level, “Shit, Simon, there are two fucking sticks in here”, or words to that effect. Probationary Constable Herold did not recall hearing Constable Dennis say that. Constable Goulding accepted that he knew that, some time ago, the word “sticks” was used by some to refer to the probes of a taser, but said that it was some time since he had heard such terminology. Probationary Constable Herold had not heard “sticks” ever being used to describe anything associated with a taser.

82. I have watched and listened to the taser recording a number of times. Constable Dennis’s voice is not sufficiently distinct to make out whether he said the words contended for by the plaintiff, although it is possible that he said those words. Even if he did, they are not inconsistent with the defendant’s evidence, which is that the barb of one taser prong went into the plaintiff’s right upper leg and that the other one, which was aimed at his belt line, did not attach to the plaintiff so as to cause NMI. There is no notation on the hospital notes which supports there being a second barb in the plaintiff’s back or waistline. Further, the hospital notes do not even record the mark left by the barb which Constable Dennis removed from the plaintiff’s upper right leg. No note of any such mark was made by the paramedics, notwithstanding that it was their usual practice to make a note of any such mark which they observed. If Constable Dennis had located “two sticks” (an out-dated reference to taser prongs) behind the plaintiff’s back when he rolled him over, this would also be inconsistent with the plaintiff’s submission (see below) that the second barb had gone into the plaintiff’s left sternum.

83. When Probationary Constable Herold got down to the lower level where the plaintiff was, he saw one probe just under the plaintiff’s buttocks on the right side. He did not see where the other probe went.

84. When Constable Goulding went back through the unit after going downstairs after the incident, he was “a bit shocked” that of the twenty people who had been there when he arrived, there were only four left.

85. I accept the plaintiff’s evidence that he did not discuss the events of 20 February 2016 with anyone because he found it too upsetting. He has returned to Unit 1 only once since that date. He attended with a barrister and a “fall guy” (whom I take to mean an expert in falls) to show them where he was standing on the balcony when he first came to after inhaling drugs. He confirmed that this was the only position in which he actually recalled being. However, as soon as he demonstrated his position, he went to the other end of the balcony because it made him upset to be there. The plaintiff could not recall the date, or approximate time, at which this visit had occurred.

The involvement of ambulance officers and paramedics

86. The Triple-0 call referred to above was received at the ambulance control centre at 11.53pm on 20 February 2016.

87. Ambulance 1950 responded at 12.14am on 21 February 2016. By this time the plaintiff had already gone over the railing. Ambulance 1950 was staffed by two paramedics employed by NSW Ambulance, Scott Miles and Craig Perkins. For that shift, Mr Miles was designated as the treating paramedic and Mr Perkins as the driver. Ambulance 1950 arrived at the Unit block at about 12.25am on 21 February 2016. Another ambulance, number 1527, arrived, with two paramedics, Gareth Copland and Shana Escott.

88. The NSW Ambulance record noted that the plaintiff was “extricated” at 1.27am.

89. Mr Miles has no recollection of seeing any taser barbs or any evidence of any taser probe penetration on the plaintiff’s body. Nor was any record made in the NSW Ambulance notes of any such marks. I accept that it was Mr Miles’s usual practice to record in his notes any taser probes located on the patient’s body and, if they had been removed, any signs of a puncture site. In addition to recording any such information in the notes, Mr Miles would have provided “this important information … during the handover at the hospital.” Mr Copland and Mr Perkins, neither of whom was cross-examined, gave evidence to similar effect.

90. At 12.45am, the CAD system recorded that Inspector Thorpe (HS 10) asked whether the plaintiff had been tasered. HS 37 responded that a taser was deployed but that it was ineffective.

91. At 1.33am, the plaintiff was transported by ambulance to Royal North Shore Hospital. Because of the plaintiff’s need for immediate care, both Mr Miles and Mr Perkins remained in the back of the ambulance on the way to the hospital. Ambulance 1950 was driven by Ms Escott, one of the paramedics who had arrived in ambulance 1527. None of the paramedics was at the scene when the plaintiff went over the balcony railing.

92. Ambulance 1950, which contained the plaintiff, arrived at Royal North Shore Hospital at 1.47am on 21 February 2016.

93. The Ambulance Electronic Medical Record recorded:

“….. [Police] TASERED HIM BEFORE HE JUMPED LANDING ON HIS BOTTOM ON ROOF JUST OVER RAILING BEFORE SLIDING AND FALLING APPROX 4 METRES ONTO BALCONY BELOW.”

94. Mr Miles confirmed that he would have obtained the history from someone at the scene but he had no recollection of the person from whom he had obtained the history or whether the person was a police officer.

95. For the reasons given below and in light of the findings made above, I regard the history that the plaintiff was “tasered” before he fell as being incorrect if it is intended to indicate that the two prongs of a taser fastened themselves to the plaintiff to complete a connection such that an electrical current passed through his body, causing him to sustain NMI. Although this was what Probationary Constable Herold intended to do, he did not achieve this objective since only one prong went into the plaintiff’s body. Further, as witnesses described, there was no sign of any NMI. Therefore, the circumstantial evidence is against the hypothesis that two probes were engaged.

The clinical notes of Royal North Shore Hospital which recorded a history of the incident

96. The clinical notes of the Emergency Department of Royal North Shore Hospital recorded, in “Assessment Documents” prepared at 3.07am on 21 February 2016 by Carrie Stannie (the Stannie note), under the heading, “History from paramedics”, that the police had “tasered” the plaintiff. The history also noted:

“[The plaintiff] [a]llegedly stated he wanted to jump off balcony, police present and tasered patient. Patient tasered to left side of chest according to the parame[d]ics.”

97. I accept that none of the paramedics had any direct knowledge of whether the plaintiff had been tasered or where he had been tasered. If they had been told anything about the plaintiff having been tasered, it could only, reliably, have come from those police officers who were aware of what had occurred. As appears from the narrative set out above, only one of the prongs made contact with the plaintiff. That he displayed no reaction to the discharge of the taser is, as referred to above, also powerful circumstantial evidence that no electric charge passed through his body (as the taser requires a circuit to be completed by the application of two barbs).

98. For this reason, I find that the plaintiff was not “tasered” since only one of the barbs attached to his right leg just below his buttock. I find that neither of the barbs struck his left chest. At the time the taser was discharged, the plaintiff had his back to Probationary Constable Herold, who aimed the taser at his lower back.

99. It is well known that hospital records and clinical notes taken by medical practitioners or medical staff can constitute reliable evidence because those who make them are doing so to create an accurate record of that which is included. An appreciation of the value of such sources led to the statutory exception to the hearsay rule for business records: Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 at 548-549 (Hope JA, Reynolds and Hutley JJA agreeing). However, their reliability ought not be overstated, particularly when they purport to record a history without a precise source or where, as here, they nominate a source (the paramedics) who had no personal knowledge of the relevant fact. Thus, in Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36, the High Court (French CJ, Heydon and Bell JJ) held, at [17], that the record made by the ambulance officers that the asserted fact, that the respondent had fallen 1.5m onto concrete, was not admissible because, even if the information had come from bystanders, it was common ground that the bystanders had come onto the scene after the respondent had fallen. In the present case, the source of the information to paramedics was unknown but I infer that it could not have been police officers, unless the paramedics had misunderstood what they had been told by police.

100. Further, as Basten JA (Macfarlan JA agreeing) observed in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8], the medical histories are recorded for a purpose which does not necessarily correspond with a forensic purpose. When the staff of the Royal North Shore Hospital were recording histories concerning the plaintiff, they were concerned about his catastrophic spinal and head injuries. They knew that he had sustained these injuries as a result of falling from a height. What had precipitated his descent was immaterial to his treatment, except insofar as it might indicate suicidal ideation. Thus, whether the plaintiff was effectively tasered or ineffectively tasered and, if so, where on his body the taser barb had pierced were immaterial to his treatment. On 21 February 2016 at about 7.30pm, Dr Salt had told Officer Townsend, “these do not represent major injuries at this time” (see the extract of the clinical note later in these reasons). In other words, the taser piercing or piercings were insignificant to the Royal North Shore Hospital’s purpose in recording the history.

101. I allowed the hospital records to be tendered as evidence of the terms of the record (that is, for the hearsay purpose) on the basis that, although the paramedics did not have personal knowledge of the asserted fact (that the plaintiff had been effectively tasered and that one of the barbs had gone into his left chest), the information may have been provided by people who, having been present at the scene, might reasonably be supposed to have had personal knowledge of the asserted fact: s 69(2)(b) of the Evidence Act 1995 (NSW). However, although the notes were admissible on that basis, they are of significantly lesser weight than the actual evidence of police officers. Although the evidence was given over six years after the event, the police officers had each made contemporaneous notes in their notebooks and each was interviewed for several hours within a day of the incident. Their evidence positively establishes that the plaintiff was not effectively tasered and that neither barb was aimed at, or hit, the plaintiff in his chest. As referred to above, the plaintiff was facing away from Probationary Constable Herold (with his back in his direction) when the taser was discharged.

102. For these reasons, I reject the history recorded in the hospital records to the effect set out above. This incorrect history is repeated in other hospital notes. Its repetition does not improve its reliability.

Relevant police procedures and protocols

103. The Taser Protocol makes provision for the circumstances in which police are to use tasers. Clause 8 sets out the criteria to discharge a taser and provides that a taser may be discharged “at the discretion of the Taser User after proper assessment of the situation and the environment”. The purposes for which a taser may be used include protection of human life, protection of the user or another “where violent confrontation or violent resistance is occurring or imminent” or to “protect an officer in danger of being overpowered or to protect themselves or another person from the risk of actual bodily harm.”

104. Clause 8.2 of the Taser Protocol prohibits the use of a taser “in any mode … on persons where there is a likelihood of significant secondary injuries (concussive brain injury) for example: a fall from an elevated position”.

105. Clause 8.3 of the Taser Protocol provided:

“8.3         Target Areas

When targeting the subject, care should be taken not to target the eyes with the integrated sights. The integrated sights should be aligned with the following:

a)    Preferred Target Area – aim for the centre of seen target mass of the back (where possible avoid targeting the head)

b)    Secondary Target Area – aim for lower torso front (where possible avoid targeting the face, groin or chest areas)     

Maximum effect is achieved when discharging the Taser by aiming and placing one probe above and below the waistline of the subject.”

The collection of evidence

Police statements and directed interviews

106. At about 1.30am, Inspector Craig Thorpe spoke to police officers who had been present at the incident and directed them to return to the police station and prepare notes in their notebooks. He also directed the officers not to speak to each other about what had happened until each had made a record of the event in their notebooks.

107. The police conducted a Critical Incident Investigation of the incident. As part of the investigation, the police officers participated in directed interviews which were recorded. The transcripts of the directed interviews of Constable Goulding and Probationary Constable Herold were in evidence before me.

108. As part of the investigation, Officer Townsend from Maroubra Police Station attended the intensive care unit (ICU) at Royal North Shore Hospital at 7.30pm on 21 February 2016 to enquire after the plaintiff. He asked about “taser injuries to the plaintiff’s leg or back”. The response of “G. Salt” was recorded in the clinical notes as follows:

“-   I stated that as these do not represent major injuries, at this time, I was obliged [to] maintain confidentiality regarding this.

-   I could neither confirm or deny presence of any taser injuries.

-   I recommended enquiries through media or legal unit.”

109. Mr Maconachie submitted that Officer Townsend’s question of Dr Salt amounted to an admission by the defendant that the plaintiff had been tasered in one of his legs or his back. I do not accept this submission. Officer Townsend was involved in the police investigation into the incident, which had been instigated shortly after the incident. When Officer Townsend visited Royal North Shore Hospital, no more than 20 hours had elapsed since the incident. The directed interviews, which were conducted with Constable Goulding and Probationary Constable Herold, had not yet commenced. The interview with Probationary Constable Herold, which was conducted by Detective Sergeants Downie and Fulham, in the presence of a delegate from the NSW Police Association, commenced at about 8.28pm on 21 February 2016 and concluded at about 10.05pm. The interview with Constable Goulding, which was undertaken by the same officers and in the presence of the same delegate, commenced at about 10.44pm on 21 February 2016 and concluded at 1.06am on 22 February 2016.

110. At that time, Officer Townsend may have been aware that Probationary Officer Herold had tried to taser the plaintiff and that one prong had been removed from his upper right leg by Constable Dennis when he was on the lower balcony but he is unlikely to have known further details, which only emerged in the course of the lengthy directed interviews. Further, I would infer that the investigation required officers to seek information from various possible sources, of which the Royal North Shore Hospital was one.

The taser

111. The police decommissioned the taser on 15 March 2018. It was recorded as exhibit X0001804137. It was destroyed on 10 October 2018, four months before the proceedings were commenced. Its destruction was authorised by Sergeant Downie. It was not made available to the plaintiff for examination before its destruction.

112. The taser footage was retained and provided to the plaintiff’s father. The footage commenced while the plaintiff was lying on the balcony on the level below Mr Manion’s unit, which could not be accessed because the adjacent unit was not occupied at the time. It did not depict the plaintiff actually descending or what had precipitated his descent.

113. I am satisfied on the basis of the evidence of Probationary Constable Herold and Constable Goulding that the taser did not operate as it ought to have because there was a short delay between the trigger being pulled and the barbs and prongs being projected from the taser. Had the taser been operating correctly, the barbs and prongs would have been projected as soon as the trigger was pulled. Even when the taser is working correctly, there is, according to its Operating Manual, a delay of about two seconds between the safety switch being placed in the up (armed) position and the taser camera starting to record.

111. In these circumstances, I am not satisfied that there was ever footage taken of what occurred before what is depicted on the taser footage which is in evidence. I decline to find that there is any basis to draw an inference from the lack of earlier footage that the police had anything to do with the footage not starting earlier. It was not put to any of the officers that the footage had been tampered with or that there was more footage which had not been provided to the plaintiff.

Computerised Operational Policing System (COPS) reports of the incident

115. The COPS report for the incident recorded, beside the description “Narrative Details” created at 3.13am on 21 February 2016, that a taser had been deployed by Probationary Constable Herold, who was under the HS Local Area Command (LAC). The following narrative appeared under the heading “Brief Outline of Incident”:

“About 23.57 on Saturday 20th February 2016, Police responded to a job where a male was attempting to jump of [sic] a balcony. Police attended, level 3, unit 1/154- 158 Military Road, Neutral Bay. Police have entered the unit and noticed a male on the balcony who was acting very aggressively. Four Police Officers have approached the male and 2 Officers have attempted to talk to the POI.

Police were told that the POI had been drinking alcohol and taken some sort of prohibited drug (possibly MDMA). As Police approached the POI he has become very agitated and very aggressive towards Police and was yelling and screaming. The POI had walked closer to the balcony railing, where a wooden outside table was. The POI has lifted the table up and thrown it up in the air.

P/CST HEROLD has drawn and deployed his taser. One probe has hit the POI in the leg, the second probe has missed. The taser has not been effective.

The POI has then lifted himself up and jumped over the balcony, head first, landing on Level 1. CST DENNIS has then followed and jumped over the balcony from level 3 to level 1, causing injuries to his legs and hands.

CST DENNIS has checked for sign of life, put the POI into the recovery position and the POI was in and out of consciousness.

POI has been transported to Royal North Shore Hospital, where he is currently having scanned and x-rays.”

116. A further entry was created at 4.57am on 21 February 2016. It listed as witnesses Sara Graham, Matthew Miller, Fiona Herriot (who was described as “informant”), Mr Manion and Thomas Kelly. Under the heading, “Narrative Details”, this entry in the COPS report said:

“About 23.57 on Saturday 20th February 2016, Police responded at 154 Military Rd, Cremorne to a job where a male was attempting to jump off a balcony. All Harbourside vehicles have responded code red and HS 37 [sic, HS 35] (CST O’BRIEN/P/CST CHEN), HS 36 (CST TRAN/CST GOULDING) HS 37 (CST DENNIS/P/CST HEROLD) have called off at 00.01 on Sunday 21st February 2016.

HS 37, HS 36 and HS 35 have entered the building at 154-158 Military Rd, Neutral Bay met with 2 females who have give[n] Police access to the lift. These ladies have said that the POI was on the balcony and going nuts and threatening to jump. Police were also notified that the POI had been drinking alcohol and taken some sort of prohibited drug (possibly MDMA)

Police entered the lift and gone to level 3. Police have attended unit 1.

The building located on the corner of Military Road and Young St, with access to the building on Military Rd. There is both residential and commercial businesses within the building with commercial businesses located on the ground floor and about 8 levels of residential apartments. Unit 1 has a large wrap around balcony that extends from Military Road around to Young St.

Police attended, level 3, unit 1/ 154- 158 Military Road, Neutral Bay. Police have entered the unit and went through the unit out to the balcony. There was a small gathering going on in the unit, with about 20 patrons within the unit.

Once Police were on the balcony, they noticed the POI was in the corner of the balcony against the railing. Police also noticed there was a table was in front of the POI and between the POI and Police.

O’BRIEN and TRAN have stood on one side (Northern side) of the balcony, with OBRIEN in front of TRAN. HEROLD, GOULDING, DENNIS and CHEN were standing on the other side (Eastern side) of the balcony.

O’BRIEN and GOULDING have attempted to talk to the POI, with O’BRIEN being the primary talker and GOULDING was secondary. The POI said “Fuck off, I’m going to jump”

The POI appeared very agitated, aggressive (yelling and screaming) towards Police and incoherent. The POI has then lifted the table that was in front of him into the air and thrown it towards Police. The POI has then stepped closer to the balcony.

HEROLD has drawn and covered and attempted to deploy his Taser X00673320, where 1 probe has connected with the POI’s leg and the second probe has missed. The Taser had not been effective.

The POI has then muttered something and turned toward Young St, with his back to Police, lifted himself up and jumped over the balcony, head first, landing on Level 1. CST DENNIS had then followed and jumped over the balcony from level 3 to level 1, causing injuries to his legs and hands.”

117. A further COPS entry was created at 7.20am on 21 February 2016. This entry is said to be an “AMENDED NARRATIVE AS PER REQUEST BY SERGEANT RUSSELL.” The brief outline of incident recorded under this entry was:

“About 23.57 on · Saturday 20th February 2016, Police responded to a job where a male was attempting to jump of [sic] a balcony. Police attended, level 3, unit 1/ 154- 158 Military Road, Neutral Bay. Police have entered the unit and noticed a male on the balcony who was acting very aggressively. Four Police Officers have approached the male and 2 Officers have attempted to talk to the POI.

Police were told that the POI had been drinking alcohol and taken some sort of prohibited drug (possibly MDMA). As Police approached the POI he has become very agitated and very aggressive towards Police and was yelling and screaming. ·The POI had walked closer to the balcony railing, where a wooden outside table was.· The POI has lifted the table up and thrown it up in the air.

P/CST HEROLD has drawn and deployed his taser. One probe has hit the POI in the rear of the leg, the second probe has missed. The taser has not been effective.

The POI has then lifted himself up and jumped over the balcony, head first, landing on Level 1. CST DENNIS has then followed and jumped over the balcony from level 3 to level 1, causing injuries to his legs and hands.”

118. At some stage after the incident, the plaintiff was either told by someone whom he could not identify, or read in a document that formed part of his medical records, that he had been “tasered off a balcony … onto the roof, onto the balcony below”. At this point he engaged the services of a solicitor, who continues to act on his behalf.

The allegation that the plaintiff was tasered and that one prong had gone into his left chest

119. Mr Maconachie submitted that the evidence established that the plaintiff had been “tasered” and that one prong of the taser had hit the plaintiff in the left side of his chest. He relied on the following evidence in support of this submission:

1. the note made by the paramedics in the ambulance record that the patient had been tasered before he jumped;

2. the Stannie note (extracted above), which referred to history provided by paramedics;

3. the taser recording which it was said included a statement by Constable Dennis about there being “two fucking sticks in here”;

4. the enquiries made of Dr Salt by Officer Townsend at 7.30pm on 21 February 2016 in which he asked “about taser injuries to [the plaintiff’s] leg + back”; and

5. the unchallenged evidence of Maryanne Baker-Floyd, the plaintiff’s mother, as follows:

“[The plaintiff] had a sheet which was pulled up to about the base of his sternum. I saw two round red marks about 5 to 10mm in diameter. The marks were about 20 to 25mm apart and around or slightly to the left of the midline of [the plaintiff’s sternum].

120. I have already addressed (1)-(4) above. As to (5), I regard the plaintiff’s mother’s evidence as inconsistent with a taser barb having pierced the left side of the plaintiff’s chest. Each prong of the taser had a single barb (as is evident from the User Manual tendered by the plaintiff and the Taser Protocol tendered by the defendant). Had a barb attached to the plaintiff’s chest, there would only have been one mark on the plaintiff’s chest, not two. The plaintiff did not contest Probationary Constable Herold’s evidence that he saw Constable Dennis remove a barb from the plaintiff’s right upper leg. Thus, the presence of two identical or similar marks on the plaintiff’s left chest is inconsistent with the proposition that a taser barb went into the plaintiff’s chest.

121. Furthermore, the objective probabilities are entirely against one of the taser barbs going into the plaintiff’s left chest. Probationary Constable Herold’s evidence was that he pulled the trigger of the taser when the plaintiff’s back was facing him, after the plaintiff had turned from having his side facing Probationary Constable Herold. At no time was the plaintiff front on to Probationary Constable Herold such as to make it possible for him to fire a taser in the direction of the plaintiff’s left chest.

The application of Jones v Dunkel

122. Mr Maconachie submitted that each of the officers who were present (Probationary Officers Chen and Tran, Constables Dennis, O’Brien and Smith) or who became involved in the investigation (Detective Sergeants Downie and Fulham and Inspector Thorpe) or whose name appeared as having amended the COPS report (Sergeant Russell) was a witness whom the defendant could be expected to have called. He submitted that, as the defendant had not called them, I was not permitted to draw any inference in favour of the defendant and relied on Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8. Mr Maconachie repeatedly referred to Constables Dennis and O’Brien as the most senior officers although he ultimately accepted that he regarded them as the most senior because of the key roles they played.

123. Mr Hutchings submitted that no such inference was available in circumstances where the defendant had called three key eye witnesses to what had occurred on the balcony: Senior Constable Gaskell (who had a good view of what was happening and was not directly involved), Constable Goulding (who was, as a “Constable 5”, the most senior officer present) and Probationary Constable Herold (who had fired the taser).

124. On the basis of the summary of authorities and texts set out by Campbell J (Beazley JA and Pearlman AJA agreeing) in Manly Council v Byrne [2004] NSWCA 123 at [63]-[65], I accept the defendant’s submission. The defendant was not obliged to call every police officer who had any connection with the incident. Where an uncalled witness would have been merely cumulative or corroborative of witnesses already called, no Jones v Dunkel inference arises. Much was made of Constable Dennis’s absence, since he had jumped from the balcony to gain access to the plaintiff and roll him over. However, whatever evidence Constable Dennis could give could not establish that the plaintiff had suffered NMI since there was no indication of it, given the way the plaintiff moved after being struck by a single probe of the taser. Further, while it was Constable O’Brien who spoke with the plaintiff, he did so in the presence of all the other police officers who were there on the balcony, three of whom were called to give evidence.

125. I do not accept that Detective Sergeants Downie or Fulham were material witnesses. They asked the questions in the directed interviews, transcripts of which were created. Sergeant Downie authorised the destruction of the taser, the spent taser cartridge, the wire and the two prongs. However, the evidence discloses that he was asked on 23 August 2017 whether these items could be destroyed. He responded by saying that the taser itself was to be returned to North Sydney Police Station but that the other items were to be destroyed. The taser was also destroyed. Sergeant Downie’s evidence could not be expected to bear on the issues in the proceedings in circumstances where he authorised the destruction of these items after the police investigation had been completed and before the proceedings had been commenced.

126. Inspector Thorpe, relevantly, told the officers not to speak to each other and to make notes in their notebooks as to their recollections. They each gave evidence to that effect. Although he downloaded the taser footage, I could not infer from his not having been called as a witness that he did so in such a way as to damage or corrupt the footage.

127. Sergeant Russell requested that the narrative in the COPS report be amended. The only relevant amendments from previous versions, which I have been able to discern (and none was identified by the plaintiff), apart from clerical matters, are as follows:

1. under the heading “Type of Deployment”, in the amended version “Draw Cover” has been deleted and the alternative, “Probes Discharged” remains, whereas in earlier versions both appear as neither has been deleted; and

2. in earlier versions, the narrative recorded that one probe had hit the plaintiff in the “leg”, whereas the later version recorded that it had hit the plaintiff in the “rear of the leg”.

128. There is no suggestion that “Draw Cover” is relevant in these proceedings. The evidence of the police officers established that a prong went into the rear of the plaintiff’s right upper leg. Accordingly, I do not regard a relevant inference being available against the defendant on the basis contended for by Mr Maconachie.

Liability

Whether the Civil Liability Act 2002 (NSW) applies

129. Section 3B of the Civil Liability Act relevantly provides:

“3B   Civil liability excluded from Act

(1)     The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows—

(a)     civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury … — the whole Act except —

…

(ii)     Part 7 (Self-defence and recovery by criminals) in respect of civil liability in respect of an intentional act that is done with intent to cause injury or death …

…”

130. Mr Maconachie submitted that the present case fell within s 3B(1)(a) and that, therefore, the only provisions in the Civil Liability Act that applied in the present case were those in Part 7. He submitted that Probationary Constable Herold deliberately fired the taser with the intention of causing NMI to the plaintiff and that this was sufficient to amount to an intentional act done with intent to cause injury within the meaning of s 3B(1)(a). He submitted that it was irrelevant that Probationary Constable Herold’s overall motive was to save the plaintiff’s life by stopping him going over the balcony railing, when his intention was to cause him injury.

131. Mr Hutchings submitted that Probationary Constable Herold’s intention was to safeguard the plaintiff’s life rather than to cause him injury and that therefore s 3B(1)(a) did not apply to exclude the Civil Liability Act, even though he intended, when firing the taser to cause the plaintiff to suffer NMI.

132. In Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132, Leeming JA (Beazley P and Ward JA agreeing) at [34]-[35] and [117] emphasised the importance, when determining whether the exception in s 3B(1)(a) applied, of addressing the character of the underlying conduct alleged, rather than the character of the cause of action pleaded. This is significant in the present case because if too narrow a view is taken of the conduct (if it is limited to the taser strike), the conclusion could be reached that there was an intention to injure, when Probationary Constable Herold’s actual intention was quite the opposite. In addition, the circumstance that the plaintiff relies on battery cannot determine whether the exception applies.

133. In the present case, it was accepted that Probationary Constable Herold was in a difficult situation and that he was well-motivated when he fired the taser at the plaintiff. It was also accepted that he intended to cause NMI (although he was unsuccessful in his endeavour due to a malfunction in the taser) but he did not intend the plaintiff to suffer catastrophic injuries as a consequence of going over the railing. Indeed, his intention was to prevent that very occurrence, which was why he fired the taser when he did.

134. It is significant that the plaintiff claims damages for injuries he sustained as a result of impact with the lower balcony, as opposed to injuries he sustained by being struck by a prong of a taser. The importance of this matter was considered in Dickson v Northern Lakes Rugby League Sport and Recreation Club Inc (2020) 103 NSWLR 658; [2020] NSWCA 294 (Dickson).

135. In Dickson, a rugby league player suffered personal injury in a match as a result of a “spear tackle”, which lifted him off the ground and drove him into the ground, following which the tackler landed on the appellant’s head. In the statement of claim in Dickson, the plaintiff alleged:

“although he [the player doing the tackling] did not intend to cause the serious injury which in fact occurred, he did intend to cause the plaintiff some minor and temporary injury from contact with the ground, this being an inherent and inevitable feature of vigorous rugby league tackles.”

136. Basten JA held at [15]:

“It is not possible to read s 3B(1)(a) as engaged where the intent is to cause an injury which is not the subject of the claim. The injury which was the subject of the present claim resulted from the fact that the tackler fell onto the appellant’s head. There was no evidence that he subjectively held an intention to do that, or to cause the injuries which resulted from that act.”

137. In these circumstances, and on the basis of Basten JA’s reasoning in Dickson, I am not persuaded that s 3B(1)(a) applies. Accordingly, the provisions of the Civil Liability Act apply to the plaintiff’s claims in battery and in negligence.

Alleged assault and battery

138. Mr Maconachie submitted that:

1. when the police arrived, the plaintiff was outside on the balcony by himself, was not restrained in any way and demonstrated no signs of disturbance or aggression;

2. six police advanced towards the plaintiff from at least two directions, causing the plaintiff to become agitated; and

3. the police tasered him and at least one barb broke his skin at about the time he jumped over the balcony railing and fell several metres.

139. For the reasons given above, I do not accept that (1) or (2) is accurate. The plaintiff was highly agitated at all times when the police were there. He did not appreciate that the police were even there, even if, which is doubtful, he registered that there were other people in the vicinity on the balcony. As to (3), for the reasons given above, the police did attempt to taser the plaintiff but only one prong made contact with his skin. At about the time he was tasered the plaintiff was already in the course of trying to go over the balcony railing.

140. Mr Maconachie submitted that the actions of police amounted to assault and battery and caused the plaintiff to fall by reason of the following:

1. it ought to be inferred that the plaintiff did not want to harm himself since if the plaintiff had wanted to do so he would have jumped over the Military Road side of the balcony (this presenting a significantly greater drop to the ground rather than to a lower balcony, as was the case on the Young Street side of the balcony) when he had the opportunity to do so when he was alone on the balcony before the police arrived;

2. when the plaintiff was struck by the taser, he suffered NMI which caused him to fall over the railing;

3. in the alternative, the plaintiff reacted to being simultaneously rushed by police and hit by a taser by fleeing from the threat and passing over the railing; or

170. For these reasons, I am satisfied that the defendant has made out the defence in s 54 of the Civil Liability Act.

Alleged negligence

174. Mr Tierney accepted that I was bound by authority to find that the police did not owe a duty to the plaintiff in the circumstances of the present case where the police were exercising their duties as police officers in respect of the plaintiff. The authorities cited by the defendant in support of this proposition (which were accepted by Mr Tierney to have this effect) include Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35, Thompson v Vincent [2005] NSWCA 219 at [152]-[153] (Mason P, Handley JA and Pearlman AJA agreeing); New South Wales v Klein [2006] NSWCA 295 (Young CJ in Eq, Beazley and Santow JJA agreeing) and Stuart v Kirkland-Veenstra (2009) 237 CLR 215; [2009] HCA 15.

175. I understood Mr Tierney not to abandon the plaintiff’s claim in negligence, against the possibility that the High Court might find, by departing from earlier authority, that the police owed a duty of care to the plaintiff in the present case.

176. Trial judges usually have an obligation to make such findings of fact as might be required, even if hypothetically, to avoid the matter having to go back to a first instance judge, if an appellate court overturns the decision at first instance. Thus, trial judges, who find for defendants, are obliged to determine damages. However, in circumstances where I am bound to find that there was no duty owed by the police to the plaintiff, it is difficult to make findings about what such a duty would require, if it existed.

177. Furthermore, there was considerable prevarication by those appearing for the plaintiff as to the relevant counterfactual, and indeed whether a counterfactual was relevant at all. I understand the measure of damages in tort (whether battery, assault or negligence) to be the amount of money required to put the plaintiff in the position he or she would have been had the tort not been committed: Gates v City Mutual Life Assurance Society Limited (1986) 160 CLR 1 at 12-13 (Mason, Wilson and Dawson JJ); [1986] HCA 3. This is a separate concept from the question whether damage need be proved (it need not in battery and assault but it is the gist of the cause of action in negligence).

178. However, for the very reasons which ground the rationale for the courts not recognising such a duty, I find it difficult to formulate what “reasonable precautions” were required.

179. Mr Maconachie, when pressed to identify the counterfactual, submitted that the police should have waited downstairs until the ambulance officers arrived since they were mere “adjuvants” to the ambulance officers. Mr Tierney subsequently disavowed that submission and contended that the police should have gone up and tried to calm the plaintiff down on the balcony but, if they had not been successful, they should have retreated and waited for the ambulance officers. It was also variously suggested that there were too many police officers on the balcony and that fewer would have been less threatening to the plaintiff.

180. The difficulty with these submissions is that they are founded on hindsight reasoning, which is impermissible: Lim v Cho [2018] NSWCA 145 at [34] (Sackville AJA, Leeming JA agreeing). The reason so many police officers attended was that, as communicated by Ms Glynn to the Triple-0 operator (and, in similar terms, by Ms Herriott to police officers outside the unit block), the plaintiff was large, strong, antagonistic and “semi-violent”. The guests at the party were scared and were “huddled” inside the unit. When Ms Herriott saw six officers on the footpath, she expressed a concern that their number was insufficient. Further, the plaintiff appears not to have even been aware that the people on the balcony (if he was aware of them at all) were police officers.

181. Further, the plaintiff’s submissions are premised on the unproved allegation that the plaintiff would not have gone over the railing but for the presence of the police.

182. Thus, the plaintiff fails on causation. He has not established, on the balance of probabilities, that anything the police would, or could, have done differently in the few minutes when they were present would have produced a different result. As a consequence, his claim in negligence must fail, even if a duty were owed, which I am bound to find that it was not.

Defences to negligence

183. My reasons regarding the defences under ss 50, 52 and 54 of the Civil Liability Act are set out above and need not be repeated.

Section 5L of the Civil Liability Act: dangerous recreational activity

184. I am satisfied that the defendant has established the defence under s 5L of the Civil Liability Act to the plaintiff’s claim in negligence. The taking of illicit substances of unknown source, purity and composition is a dangerous recreational activity. The plaintiff accepted that the possibilities of the effect of MDMA (or indeed any white powder inhaled in those circumstances) particularly when taken after heavy consumption of alcohol, were “open”, in the sense of being unpredictable. Further, he had already observed the effect of the drug on the three men who, to his observation, were “wild” and behaving in an uncharacteristic fashion. The risk of the plaintiff’s thought processes becoming disordered (whether or not they amounted to psychosis) as a consequence of taking illicit drugs in those circumstances would have been (as the plaintiff accepted in cross-examination) obvious to a reasonable person in the plaintiff’s position

Section 5R of the Civil Liability Act

185. It follows from what I have said above that I consider the plaintiff (as compared with the police) to be wholly responsible for what occurred. He failed to take precautions for his own safety in a marked and extraordinary way. A 100% deduction is appropriate.

Damages

186. Notwithstanding my decision that the plaintiff has failed to establish his claim in assault or negligence and that the defendant has established a defence to the plaintiff’s claim in battery, it is nonetheless, incumbent on me to assess damages on the assumption that the actions of the police caused him to suffer the injuries which he in fact suffered.

Factual findings relevant to damages

187. By the age of 16, the plaintiff was using illicit drugs and continues to do so. After he finished school, he worked with his uncle as a painter. He undertook training at TAFE in building. In his youth, the plaintiff worked on various commercial sites owned by Cbus.

188. In 2012 the plaintiff had a serious car accident (referred to above) from which it took him two or three years to recover. Following his recovery, he engaged in further education, including a diploma in project management and also a course at TAFE in building construction. He had not yet completed the course before 20 February 2016.

189. While he was recovering from the motor vehicle accident, the plaintiff renovated a friend’s house for as many hours as he was able. Subsequently, he worked as a self-employed painter and builder. He operated his business as a sole trader. He also worked on commercial sites. He had worked at Barangaroo until about November 2015, installing and painting fire pipes and plant rooms.

190. After the incident on 20 February 2016, the plaintiff was taken to Royal North Shore Hospital where he remained for some months. He was in the Intensive Care Unit from his admission in the early hours of 21 February 2016 until he was transferred to the spinal ward on 2 March 2016. He remained in the spinal ward until 5 May 2016 when he was transferred to Royal Ryde Rehabilitation Unit. He remained there until he was discharged to the Mt Wilga Private Hospital on 28 August 2016 where he stayed until 10 October 2016. He made an application for public housing through the National Disability Insurance Scheme (NDIS).

191. Following his discharge from Mt Wilga Private Hospital, the plaintiff lived with his mother in a rented unit at Beecroft until he was allocated an accessible public housing residence. He was absent from his mother’s residence from 29 November 2016 to 5 December 2016 for the purpose of undergoing carpal tunnel surgery.

192. In June 2017, the plaintiff moved to a dwelling in Ryde which was provided to him by “Link Housing”, which provides purpose-built, wheelchair accessible housing.

193. As part of the NDIS, the plaintiff receives three hours of assistance a day for daily living and social, civic and community participation (such as to help him to go the swimming pool). The assistance also involves cleaning his residence and washing linen and helping to prepare food. The plaintiff has a dog and, in order to ensure that the open wound on his foot does not become infected with dirt or dog hair, the floors of his residence are cleaned regularly.

194. The plaintiff has required pain relief for the injuries he has sustained. Although medication such as Endone has been prescribed for him, he presently tries to avoid pain relief in order to preserve his vital organs and to avoid becoming addicted to them, although he sometimes takes medicinal marijuana to ameliorate the effects of muscle spasm.

Assessment of damages

195. Because of my conclusion regarding liability, I propose to set out my assessment of damages only in sufficient detail to enable an award to be made, if a different view is arrived at on the question of liability. I do not, however, propose to perform detailed calculations as this is not, in the circumstances, required.

Non-economic loss

196. The maximum award for non-economic loss under the Civil Liability Act, for the most serious case, is $693,500 for damages assessed in the year commencing 1 October 2021: Civil Liability (Non-economic Loss) Amendment Order 2021 (NSW).

197. The plaintiff has suffered very grave injuries to his mind and his body as a result of which he may never work again. His injuries affect every aspect of his life, including his sexual drive and performance, his continence, and his ability to interact socially with his friends, peers and family. Although he has a loving family, they can provide only limited comfort. He is lonely and is inclined to become depressed. His dog is his constant companion. He would like to marry and have children but his experiences of romantic attachment since his accident have been poor. A girlfriend he met on Tinder turned out to be a drug addict and he experienced great difficulty in evicting her from his house. He continues to suffer pain as a result of his physical injuries.

198. The plaintiff also suffers mental fatigue as a result of his cognitive impairment. Although he demonstrated that he was articulate and attentive when giving evidence, he became obviously tired after intense questioning. This limited capacity would tend to compromise his social interactions. Further, he plainly suffers from the recollection, or non-recollection, of what occurred prior to his descent from the balcony. While it is to be hoped that the symptoms of trauma abate now that the proceedings are over, it is to be expected that he will suffer lifelong trauma from the events of 20 February 2016.

199. The assessment of percentage severity is a difficult one. I assess the plaintiff at 75% of the most extreme case. Damages for non-economic loss pursuant to s 16 of the Civil Liability Act are, accordingly, $520,125. No interest is payable on that amount: s 18 of the Civil Liability Act.

The claims for aggravated and exemplary damages

200. Mr Tierney pressed the plaintiff’s claim for aggravated and exemplary damages. Mr Hutchings submitted that s 21 of the Civil Liability Act operated to preclude such an award.

201. Section 21 of the Civil Liability Act provides:

“In an action for the award of personal injury damages where the act or omission that caused the injury or death was negligence, a court cannot award exemplary or punitive damages or damages in the nature of aggravated damages.”

202. “Negligence” is defined in s 5 of the Civil Liability Act to mean failure to exercise reasonable care and skill. It therefore has a wider ambit than merely actions which are pleaded as claims in negligence. Thus, s 21 has been held to apply to all cases where damages are awarded on the basis of a failure to exercise reasonable care and skill, however the claim is actually pleaded: State of New South Wales v Ibbett (2005) 65 NSWLR 168; [2005] NSWCA 445 at [118] (Ipp JA) and [200]-[209] (Basten JA), approved in Croucher v Cachia at [35] (Leeming JA). Because there was no relevant intent to injure (see above in the context of s 3B of the Civil Liability Act), the plaintiff’s claims are founded on an act of “negligence” within the meaning of s 21. Thus, he is not entitled to an award of aggravated or exemplary damages.

203. For completeness, I feel bound to add that, even had I not considered the award of aggravated and exemplary damages to be precluded by s 21, I would not have been satisfied that there was any basis for such an award in the present case.

204. First, the plaintiff gave no evidence to support an award of aggravated damages.

205. Secondly, Mr Tierney submitted that the following forensic decisions taken by the defendant warranted an award of aggravated damages:

1. the defendant’s failure to call Ms Glynn or Ms Herriott or any of the other guests at the party;

2. cross-examining the plaintiff’s father about the plaintiff’s drug use in the presence of the plaintiff;

3. alleging that there were no taser strikes; and

4. the maintenance of the defence under s 5O of the Civil Liability Act, until it was formally abandoned in submissions.

206. As to (1), the defendant had no obligation to call either Ms Glynn or Ms Herriott. As to (2), the questions about the plaintiff’s drug use arose in the following exchange:

“Q. And was drug use a problem in his life, to your perception, before February?

A. No, he was functioning, doing whatever he had to do, working consistently.

Q. There were periods where he was unable to work, weren’t there?

A. In relation to previous accidents, yes.

Q. What I want to put to you is that he had an illicit drug problem, to your understanding, before 20 February 2016.

A. Yes.

Q. And it was a constant feature of his life.

A. Yes.

Q. And that before 20 February 2016, he’d had a persistent problem with abusing alcohol.

A. I wouldn't call it abusing it. I would call it binge drinking on occasions, yes.

Q. The motor vehicle accident that he had in 2012 was as a result of him being detected drink driving and then seeking to escape from police when he had a very serious motor vehicle accident.

A. Correct.

Q. And he was unable to work for two to three years after that, correct?

A. About that time, yes.

Q. Because of the very significant nature of his injuries.

A. Correct.”

207. I do not regard this cross-examination as in any way inappropriate. At least part of its forensic purpose was to ascertain whether the plaintiff’s father knew of significant events in the plaintiff’s life, as well as to impugn the plaintiff’s father’s evidence that the plaintiff had been working consistently, which other evidence proved was not the case.

208. As to (3), I understood the defendant’s case at all times to be that the taser had not operated effectively and had not caused NMI but that one taser barb had made contact with the plaintiff. As to (4), although the defence was maintained until submissions, it did not appear to take up any time in the proceedings or turn on any evidence which was not otherwise relevant to other issues in the case.

209. It was my impression that Mr Hutchings and Mr Coffey conducted the defendant’s case in a proper way, with due sensitivity to the plaintiff’s disabilities and cognitive impairment. After the plaintiff’s oral evidence had been concluded, I informed him that he could continue to watch the proceedings remotely or choose not to do so if he preferred. Even had such an award not been excluded by s 21 of the Civil Liability Act, I do not regard any such award as warranted in the present case.

210. As for exemplary damages, they are, in substance, designed to punish the defendant for its conduct. In the present case, the police were faced with a difficult and challenging situation to which they responded promptly. That their efforts did not ultimately save the plaintiff from himself does not diminish their diligence in coming to the scene as quickly as possible and responding in a way which was designed to protect the plaintiff’s life. I am not persuaded that there is any basis for an award of exemplary damages.

The plaintiff’s loss of earning capacity

211. The plaintiff can drive a vehicle and transport his wheelchair in it. He can unload the wheelchair and single-handed, get it out of his utility and use it on arrival. Notwithstanding his residual strength and ability to drive, the consensus of the experts, which I accept, is that the plaintiff has no, or little earning capacity. A formal assessment would, in my view, confirm the conclusion that the plaintiff’s physical injuries put any non-sedentary work out of his reach while his cognitive impairment makes him unsuitable for sedentary work.

212. As referred to above, the plaintiff was working as a self-employed tradesperson at the time of the incident. He had, according to a history provided to Royal North Shore Hospital, lived with his mother since his motor vehicle accident about four years previously in April 2012. Nothing was produced in answer to a notice to produce issued on behalf of the defendant for his tax returns and other financial records. During his evidence in chief, the plaintiff said that he had no particular memory of his earnings and referred to his accountant.

213. On 11 May 2022, the third day of the hearing and after the plaintiff had finished giving evidence, Mr Tierney (who adduced evidence and made submissions on damages on behalf of the plaintiff) sought to tender a document entitled “Payment summaries” which covered periods from 2011 to 2021, and a document which purported to be for the financial years ended 30 June 2017 (that is, for the first complete financial year after the incident), 30 June 2016, 30 June 2015, 30 June 2014, 30 June 2013, 30 June 2012 and 30 June 2011. Having regard to the timing of their production, the inference is compelling that they were prepared for the purposes of these proceedings. No underlying documents were produced. In these circumstances, I rejected the tender of these documents.

214. Mr Tierney submitted that the plaintiff was entitled to have his loss of earning capacity, which he submitted was total, assessed on the basis of average weekly earnings (AWE).

215. As the Civil Liability Act applies, s 13 is presently relevant. It provides:

“13   Future economic loss—claimant’s prospects and adjustments

(1)     A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.

(2)     When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury.

(3)     If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.”

216. Although the evidence establishes that the plaintiff was doing home renovation work for friends and associates and also doing some commercial work, there are no documents to establish how much he was earning prior to the incident. There are various possibilities. First, the plaintiff was earning a substantial income which he was paid in cash, which explains the lack of documentary records of bank statements, etc, to establish his earnings. Alternatively, his work product was so low that it did not warrant putting in a tax return because his earnings were below the threshold. There are other possibilities, too, but it would be speculative to postulate them, much less to choose between them. The dearth of evidence not only makes it difficult to assess how much the plaintiff could charge for his labour but also how much the plaintiff worked before the incident. Further, as he was living with his mother, it cannot be assumed that he made enough to support himself independently.

216. I am prepared to assume that, when the plaintiff worked, he did so as a self-employed tradesperson. The evidence does not establish either how much he worked, or what he earned. The plaintiff’s evidence was that he has almost always been self-employed and that, from 2014 to 20 February 2016, he was doing “high-end bathroom and kitchen renovations” which he mainly undertook in Sydney. He said that his earnings were variable as he was paid on completion of jobs.

217. The plaintiff’s father’s evidence has been extracted above in the course of my reasons for declining to award aggravated damages. The evidence of the plaintiff’s mother, Ms Baker-Floyd, was that between 2005 and 2012, the plaintiff had worked in his uncle’s painting business. She said that after the car accident in 2012, the plaintiff moved back to live with her, her husband (not the plaintiff’s father) and other members of the family. He then studied building design at TAFE as part of his rehabilitation. She said that in 2015, the plaintiff had his own building and renovation business and that he helped his mother and her husband to paint and renovate their home in Beecroft. Ms Baker-Floyd said that “[the plaintiff’s] business was going very well.”

218. But for the incident, I find that the plaintiff’s most likely future circumstances would have been to work on home renovation jobs for friends and associates for which he would be paid at the completion of the jobs. I do not consider that there is any necessary relationship between what he would earn doing this and AWE.

219. In Perez v Reynolds [2020] VSC 537, Forbes J was required to assess damages of a self-employed tradesperson who had been sexually abused by a teacher when he was a child. The plaintiff, who was 47 years old at the time of the proceedings, had been for some years, employed as a labourer, stonemason or handyman in his family business but had no formal trade qualifications. Ultimately, Forbes J adjusted the figure for an AWE figure and refined it to take account of the significant evidence in the form of tax returns, salary estimates in various job guides as well as expert reports, none of which is available in the present case.

220. In Laws v GWS Machinery Pty Ltd [2007] NSWSC 316; (2007) 209 FLR 53, Rothman J assessed damages for the plaintiff who was a carpenter. His Honour considered the minimum rate of pay for a tradesperson carpenter under the relevant award, as well as the AWE for an adult male in NSW as relevant figures to guide the assessment.

221. The plaintiff’s schedule of damages seeks past economic loss of $489,954 (based on $1,222.70 per week (AWE minus Centrelink disability support pension), plus superannuation of 10% and interest at 2% to 9 May 2022). In the alternative, the plaintiff seeks a buffer of $300,000 if the loss is incapable of precise calculation.

222. The plaintiff seeks future economic loss on the same basis of $813,767.99 (on the basis that the Civil Liability Act applies). In the alternative, the plaintiff seeks a buffer of $600,000 for future economic loss if the loss is incapable of precise calculation.

223. The principles in Blatch v Archer (1774) 1 Cowp 63 apply. It was entirely within the plaintiff’s power to prove his earnings and his earning capacity. He has chosen to do neither. In these circumstances, it is a matter of speculation as to what he has lost for his past earnings or the quantum of his loss of future earnings.

224. On a strict reading of s 13 of the Civil Liability Act, I ought make no award for future economic loss since I cannot predict his most likely circumstances in terms of quantum of earnings. However, in circumstances where I accept that the consequence of the incident is that the plaintiff cannot work again, and the assumption that I must make for the purposes of making findings on damages (that the defendant is liable), I propose to accept the buffer figures put forward by the plaintiff in the particulars. In these circumstances, the award for past economic loss is $300,000 and the award for future economic loss is $600,000. These figures are not challenged by the defendant.

225. I appreciate that there is some tension between this approach and what Basten JA said in Ranger v Turner [2007] NSWCA 162 at [39] that awarding damages by way of a buffer is usually appropriate only where there is no basis for making a calculation. The reason why there is no such basis is because evidence of the basis has not been adduced and not because it is of a type that cannot otherwise be established.

Attendant care

227. The expert conclave has resulted in substantial consensus about the plaintiff’s need for care. I accept the opinions of the experts which form the basis of my findings about the need for care, which are set out in the table below.

Period	Hours per week	Reason
20.2.16-9.10.16	Nil	Plaintiff in hospital
10.10.16-28.11.16	6.55	Plaintiff living with mother
29.11.16-4.12.16	Nil	Plaintiff in hospital
5.12.16-30.6.17	4.5	Plaintiff living with mother
1.7.17 to date of judgment	Nil	Care provided to the plaintiff pursuant to the NDIS (will be reflected in amount for out-of-pocket expenses)
Future, from date of judgment to 5.2.37	7.1
6.2.37-5.2.49	6.85
6.2.49-5.2.65	13.1

228. I accept the plaintiff’s claim for the cost of such care at $50.20 per hour, being the NDIS-funded commercial rate for such care. I accept that the plaintiff’s remaining life expectancy is, as per the tables, 42.2 years.

Out-of-pocket expenses

229. I am informed on behalf of the plaintiff that the amounts for past and future out-of-pocket expenses have not been quantified pending entry of judgment by the Court. As there is to be judgment for the defendant, these amounts are not available to be included in my reasons.

Cost of psychological treatment

230. The plaintiff claims compensation for the cost of psychological treatment. The plaintiff has not yet sought psychological treatment. However, I accept the joint expert opinion that he would benefit from such treatment. I assess the cost of this treatment to be $10,000.

Additional buffer for medical treatment, occupational therapy, aids and out-of-pocket expenses

231. As I do not, for the reasons given above, know what the figures for out-of-pocket expenses are, I do not propose to award a buffer for these additional expenses.

Funds management

232. The parties have agreed that the rates set out in the report of Julia Bossert, forensic accountant, in her report of 15 May 2022 (Exhibit AE), are appropriate.

Costs

233. I have not heard the parties on costs. The general rule is that they follow the event: Uniform Civil Procedure Rules 2005 (NSW), r 42.1. I am not aware of any reason why the general rule ought not be applied. However, in order to give the parties an opportunity to argue to the contrary, I will provide in my orders for an application for a different order to be made.

Orders

234. For the reasons given above, I make the following orders:

1. Judgment for the defendant.

2. Subject to (3) below, order the plaintiff to pay the defendant’s costs of the proceedings.

3. If either party wishes to apply for a different costs order, he or it (as the case may be) may do so, as long as a written application, together with any evidence and submissions in support of the application, is made to my Associate within seven days, whereupon further directions as to a response will be made, with a view to determining costs on the papers.

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Amendments

24 May 2022 - [232] - "AC" replaced by "AE"

Decision last updated: 24 May 2022