Holder v State of South Australia

[2018] SADC 83

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

HOLDER v STATE OF SOUTH AUSTRALIA

[2018] SADC 83

Judgment of His Honour Judge Millsteed

3 August 2018

TORTS - TRESPASS - TRESPASS TO THE PERSON - ACTION FOR DAMAGES

Incident involving plaintiff and officers of the South Australian Police Force at plaintiff's house - plaintiff's claim primarily for assault, battery and false imprisonment - plaintiff brings claim against State of South Australia in respect of injuries and other damages suffered - plaintiff claims damages for non-economic loss, loss of income, voluntary and paid assistance, special damages, interest and costs - plaintiff seeks exemplary or punitive damages - defendant argues actions were lawful and relies on s 32 of Firearms Act 1977 (SA) and s 68 of Summary Offences Act 1953 (SA).

Held - defendant liable in tort for assault, battery and false imprisonment - officers had no lawful authority to search and detain the plaintiff under either s 32(2)(a) of the Firearms Act 1977 (SA) or s 68(1)(b)(i) of the Summary Offences Act 1953 (SA) - damages awarded for past and future pain and suffering - damages awarded for past and future loss of income and superannuation entitlements - damages awarded for past special damages and future treatment expenses - exemplary damages awarded in the amount of $35,000.00.

Firearms Act 1977 (SA) s 32; Summary Offences Act 1953 (SA) s 68; Crown Proceedings Act 1992 (SA) s 5, referred to.
Collins v Wilcock [1984] 1 WLR 1172; ACN 087 528 774 Pty Ltd v Chetcuti (2008) 21 VR 559; Stephens v Myers (1830) 172 ER 735; Rixon v Star City Pty Ltd (2001) 53 NSWLR 9; Read v Coker (1853) 138 ER 1437; R v Wilson [1955] 1 All ER 744; White v South Australia (2010) 106 SASR 521; Blake v Barnard (1840) 9 C & P 626; Police v Greaves (1964) NZLR 295; Read v Coker (1853) 13 CB 850; Slaveski v State of Victoria [2010] VSC 441; Carter v Walker (2010) 32 VR 1; Cowell v Corrective Services Commission of NSW (1988) 13 NSWLR 714; Wilson v Pringle [1987] QB 237; McFadzean v Construction, Forestry, Mining and Energy Union (2007) 20 VR 250; Secretary, Department of Health and Community Services (NT) v JWB (Marion's Case) (1992) 175 CLR 218; Myer Stores Ltd v Soo [1991] 2 VR 597; Dinan v Brereton [1960] SASR 101; Wheare v The Police (2008) 180 A Crim R 396; Police v Dafov [2008] SASC 247; Bennett v Police [2016] SASC 139; Halliday v Nevill (1984) 155 CLR 1; Yuen v Police (2012) 222 A Crim R 264; Gibson v Ellis (1992) 59 SASR 420; R v Fazio (1997) 69 SASR 54; The Queen v Romeo (1982) 30 SASR 243; Wilson v The Queen; Morrison v The Queen (1994) 176 LSJS 435; AA v ACC (2005) 219 ALR 666; Groves v Eastern Gas Board [1952] 1 KB 77 (CA); Swales v Cox [1981] 1 QB 849, considered.

HOLDER v STATE OF SOUTH AUSTRALIA
[2018] SADC 83

INTRODUCTION

1. The plaintiff, Steven Holder, has brought a claim against the State of South Australia (‘the defendant’) in respect of injuries and other damages allegedly suffered by him in, or as a consequence of an incident, which occurred at his home on the evening of 8 January 2009 involving members of the South Australia Police Force.[1] The claim is primarily for assault, battery and false imprisonment.

   [1] The action is brought against the defendant for the actions of its servants or agents pursuant to s 5 of the Crown Proceedings Act 1992 (SA).

2. Late on the evening in question, armed members of the police Special Tasks and Rescue Group (STAR Group) attended the plaintiff’s home to arrest his half‑brother Kym Bean, who was unlawfully at large. At the time the plaintiff was inside his house with his 13 year old daughter Shannon Nihill-Holder, Kym Bean and his friend, Amy Riley. Bean became aware that the police were outside and fled the house through the backdoor but was arrested in the backyard. Following his arrest, an officer called out for the plaintiff to exit the house. The plaintiff contends that the direction included a threat that the police would throw a ‘stun’ or ‘percussion’ grenade into the house and drag the plaintiff outside if he failed to comply with the direction.

3. The plaintiff further contends that after he exited the house through the back door an officer forced him onto the ground. The officer and one or more other officers together kicked him in the head and torso, stomped on the back of his legs and forced his face into a concrete path. A firearm was also held against his head. The plaintiff was detained until the police searched the house and left with Bean about half an hour later.

4. The defendant agrees that the plaintiff was directed to come out of the house but disputes that the direction included threats of violence. The defendant further agrees that the plaintiff was subjected to force but denies aspects of his account as to the nature of the force used and the circumstances in which that occurred. The defendant maintains that the actions of the officers were lawful, relying in that regard on the provisions of the Firearms Act 1977 (SA), s 32, and the Summary Offences Act 1953 (SA), s 68.

   THE PROCEEDINGS

5. The plaintiff instituted proceedings against the defendant by filing a Summons[2] and Statement of Claim[3] (SOC) on 22 December 2011. The defendant’s Defence[4] was filed on 2 May 2012. The plaintiff’s documents were prepared and filed by his then solicitor, Mr P Liptak, who represented the plaintiff during interlocutory proceedings until May 2015 when the plaintiff commenced representing himself. The plaintiff also represented himself at trial, however, a written closing address was prepared and filed on his behalf by his new solicitor Mr S Ey.[5]

   [2]    FDN 1.

   [3]    FDN 2.

   [4]    FDN 5.

   [5]    Plaintiff’s Closing Address (written) FDN 30.

6. The plaintiff gave evidence and called the following witnesses: Shannon Nihill-Holder and Ashleigh Holder (plaintiff’s daughters), Barbara Holder (plaintiff’s mother) and Jo-Anne Hamilton (psychologist). Mr M Nicholas appeared as counsel for the defendant and called the following witnesses: Campbell Hill (police officer); Damien Eichner, Mark Stanley, Barry Phillips and Ryan Bowman (STAR team) and Dr Michael Clarke (psychiatrist). A number of documentary exhibits were tendered by the parties.

7. As the plaintiff was an unrepresented litigant I asked him a number of questions on key topics to help him present his evidence-in-chief in a structured and chronological way. During the trial, I also asked questions of witnesses called by both the plaintiff and the defendant to clarify aspects of their evidence. This occurred without protest from either party.

   PLEADINGS

8. The plaintiff’s SOC pleads the following:[6]

   [6] Statement of Claim FDN 25 [9].

   9.The conduct constituted wrongful arrest, false imprisonment and trespass to the person or in the alternative negligence.

   Particulars of Wrongful Arrest, False Imprisonment, Trespass to the Person or in the alternative Negligence of the Defendant

   i.     The defendant through its agents arrested the plaintiff without basis.

   ii.   The defendant through its agents subjected the plaintiff to assault by holding a gun to his head.

   iii. The defendant through its agents subjected the plaintiff to battery by kicking, striking and stamping on him.

   iv. In the alternative the defendant owed the plaintiff a duty to take care to needlessly injure the plaintiff and through its agents was guilty of negligence in that it used a level of force in dealing with the plaintiff that was not justified in all the circumstances.

   v.   The defendant through its agents restrained the plaintiff thereby depriving him of his liberty without justifiable cause.

9. The SOC pleads the following particulars of injuries sustained by the plaintiff:

   11.     The plaintiff suffered:

   (i)      concussion;

   (ii)     grazes and bruising to the left side of his face and head;

   (iii)    grazing and bruising to the left side of his chest;

   (iv)    grazing and bruising to both knees;

   (v)     broken teeth; and,

   (vi)    psychological consequences.

   12.By reason of his injuries the plaintiff has been obliged to seek treatment, in particular dental and psychological treatment.

   13.     The plaintiff continues to suffer from pain, suffering and loss of amenity.

10. In the result, the plaintiff claims in [18] ‘damages for non-economic loss, loss of income, voluntary and paid assistance, special damages, interest and costs’ and further seeks in [19] ‘exemplary or punitive damages’.

11. There are three observations to be made of the pleadings in [9]:

    ·    First, the heading in bold print incorrectly implies that wrongful (unlawful) arrest and false imprisonment are separate torts, and that false imprisonment is a species of tort different to trespass to the person.  In fact false imprisonment is one of three torts of trespass to the person, the other two being assault and battery. Wrongful arrest is a species of false imprisonment.

    ·    Second, sub-paragraph (ii) particularises the alleged assault as the holding of a gun to the plaintiff’s head whereas the plaintiff in his written closing address asserted as the basis for the assault that the police threatened to throw a ‘percussion’ or ‘stun’ grenade into his house and drag him outside.[7] The defendant has not been prejudiced by this departure from the pleadings and did not argue otherwise. 

    ·    Third, sub-paragraph (iv) pleads, in the alternative, a fourth cause of action, namely, negligence. For reasons which will become apparent, there is no need to consider negligence.

    [7] Plaintiff’s Closing Address (written) FDN 30 [32].

    THE LAW: ELEMENTS OF ACTIONS

    Introduction

12. The three torts of trespass to the person (assault, battery and false imprisonment) are actionable per, that is they are actionable without proof of any actual damage or injury being suffered by the plaintiff. The fundamental distinction between these three torts was explained in Collins v Wilcock[8] by Robert Goff LJ:[9] 

    An assault is an act which causes another person to apprehend the infliction of immediate, unlawful force on his person; a battery is the actual infliction of unlawful force on another person. Both assault and battery are forms of trespass to the person. Another form of trespass to the person is false imprisonment, which is the unlawful imposition of constraint upon another’s freedom of movement from a particular place.

    Assault

    [8] [1984] 1 WLR 1172.

    [9] [1984] 1 WLR 1172 at 1177-8.

13. Assault is any direct threat by the defendant that places the plaintiff in reasonable apprehension of an imminent contact with the plaintiff’s person either by the defendant or by some person or thing within the defendant’s control.  Assault is usually brought for intentional threats, although actions for reckless or even careless threats are not precluded.[10]

    [10] F.Trindade and P. Cane, The Law of Torts in Australia, Oxford University Press 3^rd ed. at 42.

14. The threat must create in the mind of the plaintiff reasonable apprehension that the threat will be carried out forthwith. However, it is not necessary for the plaintiff to fear the threat, in the sense of being frightened by it. It is enough if the plaintiff apprehends that the threat will be carried out without his or her consent.[11]

    [11] ACN 087 528 774 Pty Ltd v Chetcuti (2008) 21 VR 559 at [16] (Hargrave AJA, Ashley and Dodds‑Streeton JJA agreeing).

15. Physical contact is not an element of assault, however, there must be at least the possibility of physical contact for a threat to constitute an assault. In other words there must be the means of carrying the threat into effect.[12] However, it is not necessary to prove that the defendant in fact intends to carry out the threat.[13] In White v South Australia[14]Anderson J explained the mental element of assault as follows:[15]

    The intention element of assault requires an intention to cause apprehension in that plaintiff, putting in them the fear or knowledge and expectation that physical contact will occur. No intention to commit the actual battery is required. A defendant who lacks the requisite intent will still be liable if the plaintiff’s apprehension was foreseeable, and recklessness as to causing that apprehension can make the defendant liable.[16]

    [12] Stephens v Myers (1830) 4 Car. & P 349; 172 ER 735.

    [13] ACN 087 528 774 Pty Ltd v Chetcuti (2008) 21 VR 559 at [16] (Hargrave AJA, Ashley and Dodds‑Streeton JJA agreeing).

    [14] (2010) 106 SASR 521.

    [15] (2010) 106 SASR 521 at [365]. (emphasis added)

    [16] See also Rixon v Star City Pty Ltd (2001) 53 NSWLR 9 at 114.

16. Words alone may constitute assault if they directly cause the apprehension of imminent physical contact.[17] A conditional threat to use force if something is not done may also amount to an assault. As Balkin and Davis state:[18]

    On the other hand, words accompanying an act may explain away what might otherwise be an assault, as when the defendant in Tuberville v Savage,[19] with hand on sword said: ‘if it were not assize time, I would not take such language from you’.

    Tuberville’s case is not to be taken as establishing a rule that a conditional threat may never amount to assault – it all depends on the circumstances in which it is made and the nature of the condition imposed. In that case the declaration of the intent to kill was made subject to an extraneous condition (‘if it were not assize time’), which was known to the other party not to be fulfilled. The unfulfilled condition therefore nullified the threat.[20] If, by comparison, the condition relates to the plaintiff’s future conduct and the defendant has no right to impose the condition as, for instance, where victims are told that they will be hit if they move,[21] the defendant will be liable in assault. There is also authority[22] that an assault is committed where the defendant demands, by way of a threat, something to which he or she has a legal right, if the threat is an improper way of enforcing that right.

    Battery

    [17] Read v Coker (1853) 13 CB 850; 138 ER 1437; R v Wilson [1955] 1 All ER 744 at 745.

    [18] RP Balkin and JLR Davis, Law of Torts, LexisNexis, 5^th ed. at [3.19].

    [19] (1669) 2 NSWR 451.

    [20] Williams, ‘Assault and Words’ (1957) Crim LR 219 at 221.

    [21] Blake v Barnard (1840) 9 C & P 626; Police v Greaves (1964) NZLR 295.

    [22] Read v Coker (1853) 13 CB 850; Handford ‘Tort Liability for Threatening or Insulting Words’ (1976) 54 Can. Bar Rev 563 at 567.

17. Battery may be defined as a direct act of the defendant which has the effect of causing contact with the body of the plaintiff without the latter’s consent. Battery is usually brought only for intentional acts, though actions for reckless or even careless threats are not precluded.[23]

    [23] F.Trindade and P. Cane, The Law of Torts in Australia, Oxford University Press 3^rd ed. at 27.

18. Any physical contact, however slight, is capable of constituting a battery, but the contact must be offensive in the sense that it goes beyond that which is part of the ‘ordinary incidents of social intercourse’ or that which is ‘generally acceptable in the ordinary conduct of daily life’.[24] It is not a requirement that the defendant intended the plaintiff any harm or, as mentioned above, that the plaintiff suffered harm in fact.[25]

    False imprisonment

    [24] Slaveski v State of Victoria [2010] VSC 441 at [223] (Kyrou J).

    [25] Carter v Walker (2010) 32 VR 1 (Victoria Court of Appeal) at [215]. See also Cowell v Corrective Services Commission of NSW (1988) 13 NSWLR 714 at 743 (Clarke JA); Wilson v Pringle [1987] QB 237 at 249.

19. A false imprisonment is a wrongful total restraint on the liberty of the plaintiff that is directly brought about by the defendant. The action is usually brought for an intentional restriction on the freedom of movement of the plaintiff, though actions for reckless and negligent false imprisonments are not precluded.[26] An unlawful arrest can amount to false imprisonment.[27]

    [26] F.Trindade and P. Cane, The Law of Torts in Australia, Oxford University Press 3^rd ed. at 50.

    [27] Slaveski v State of Victoria [2010] VSC 441 at [252].

20. As the essence of the action of false imprisonment is the compelling of a person to stay at a particular place against his or her will, it is not sufficient that the conduct of the defendant contributed to or influenced the plaintiff’s decision.  It must be shown that, but for the defendant’s conduct, the plaintiff would not have yielded to the total restraint; that the plaintiff’s determination to remain was a coercive consequence of the defendant’s acts.[28]

    [28] McFadzean v Construction, Forestry, Mining and Energy Union (2007) 20 VR 250 at [41]

21. Furthermore, there must be no reasonable means of egress available to the plaintiff. Put another way, restraint will still be total if the plaintiff’s only alternative means of movement or escape is unreasonable. In McFadzean v Construction, Forestry, Mining and Energy Union[29] the Court of Appeal of Victoria said:[30]

    [A]lthough the idea of false imprisonment is sometimes expressed in terms of a restriction on liberty which must be total, that does not mean that a restriction short of lock and key may not be actionable. In each case, it is a question of fact as to whether a restriction is so severe as to be characterised as false imprisonment.  For example, if a victim is confined to an island, and the only means of egress is by swimming through dangerous waters to the mainland, there is no reasonable means of egress and the victim’s confinement to the island is likely to amount to false imprisonment.  If, however, there is a reasonable means of egress or escape from detention, the restriction may not be enough.  So, if a victim is confined to a room, and there is a reasonable means of egress through a door, the victim is in effect free to leave the room and there is no false imprisonment. 

    [29] (2007) 20 VR 250.

    [30] (2007) 20 VR 250 at [41]-[45].

22. False imprisonment for any period of time, no matter how short is actionable. However, the duration of the false imprisonment is a consideration relevant to damages.[31]

    Defences

    [31] White v South Australia (2010) 106 SASR 521 at [420] (Anderson J).

23. The defences to an action in assault or battery include consent, self-defence and lawful arrest. As Kyrou J stated in Slaveski v State of Victoria:[32]

    (a)    Consent. This defence will be established if the person consented to the bodily contact, or its apprehension. Consent may be express or implied. It may be vitiated if obtained by duress or fraud.

    (b)    Acting in defence of one’s own person. This defence will be established if no more than reasonably necessary force was used in acting to defend the defendant’s own person or the persons of others that are reasonably believed to be in danger.

    (c)    Lawful arrest. An arrest may be lawful if it is carried out in compliance with a warrant or in accordance with a statute that authorises an arrest without a warrant…

    [32] [2010] VSC 441 at [245].

24. It is well established that the defendant carries the burden of establishing any defence such as self-defence or lawful authority.[33] There is, however, a conflict in authority on whether absence of consent by a plaintiff constitutes part of the cause of action of battery or assault, in which case the plaintiff must prove absence of consent, or whether it is a defence, in which case the onus lies on the defendant to prove that the plaintiff did consent. The weight of authority in Australia supports the latter view.  In Secretary, Department of Health and Community Services (NT) v JWB (Marion’s Case), McHugh J said:[34]

    In England, the onus is on the plaintiff to prove lack of consent. That view has the support of some academic writers in Australia, but it is opposed by Australian authority. Notwithstanding the English view, I think that the onus is on the defendant to prove consent …Consent may make the act lawful, but, if there is no evidence on the issue, the tort is made out. The contrary view is inconsistent with a person’s right of bodily integrity. Other persons do not have the right to interfere with an individual’s body unless he or she proves lack of consent to the interference.

    [33] Slaveski v State of Victoria [2010] VSC 441 at [223] (Kyrou J); White v South Australia (2010) 106 SASR 521 at [367]-[369] (Anderson J).

    [34] (1992) 175 CLR 218 at 310-311.

1. Similarly, in relation to false imprisonment, if the plaintiff proves imprisonment, it is for the defendant to prove that it was lawfully justified either at common law or by statute if he or she is to escape liability. The imprisonment may be so justified on various bases, including freely given consent, lawful arrest and execution of court process.[35]

   [35] See Myer Stores Ltd v Soo [1991] 2 VR 597 at 599 (Murphy J); White v South Australia (2010) 106 SASR 521 at [421]-[423] (Anderson J); Slaveski State of Victoria [2010] VSC 441 at [252] (Kyrou J).

2. It will be necessary to discuss the defence of lawful authority in more detail later.

   THE INCIDENT: EVIDENCE

   Background

3. The plaintiff is 50 years of age, single and has three children from three relationships. At the time of the subject incident he lived at 36 Vindana Road, Paralowie with one of his daughters Shannon Nihill-Holder, who was 13 years of age at the time, (for ease of reference I will refer to Ms Nihill-Holder as SNH.) The plaintiff worked as a sales assistant team leader (Supervisor) for the Mercorella Group, and had been employed in that capacity for about four years.[36]  He had previously worked in the security industry as a crowd controller (bouncer) and armed guard.[37] The evidence disclosed that he had received some training in judo and had developed self-taught boxing skills.[38]

   [36] Plaintiff Transcript (TT) 10.

   [37] Plaintiff TT 37-38.

   [38] Plaintiff TT 38.

4. On 5 May 2004 the plaintiff’s half-brother, Kym Bean, was sentenced in the District Court of South Australia to imprisonment for seven years and two months for five counts of committing an act likely to cause harm, one count of causing bodily harm by dangerous driving, failing to stop after an accident, numerous other breaches of motor vehicle law, multiple offences of serious criminal trespass and dishonesty.

5. On 4 March 2008 Bean was released from the Adelaide Pre-Release Centre pursuant to a Home Detention Release Order (HD order) pursuant to s 37A of the Correctional Services Act 1982 (CSA).  Under the HD order Bean was required to live at an address in Pooraka and not leave that address except for specified purposes. The HD order was due to expire on 4 March 2009 but was revoked on 12 December 2008 after the Department of Correctional Services determined that Bean had breached the order and that his whereabouts were unknown.[39] 

   [39] See statement of Colin James dated 3 March 2009, Home Detention Release Order dated 1 February 2008, and Revocation of Home Detention Release Order dated 12 December 2008 annexed to Affidavit of Laura Copeland affirmed on 16 August 2016 (Exhibit D26).

6. Upon revocation of Bean’s HD order, the police were empowered to arrest Bean without warrant and return him to prison pursuant to s 37C(3) of the CSA. Furthermore, by force of s 37C(6) Bean was ‘unlawfully at large’, an offence under s 50 of the CSA and s 254 of the Criminal Law Consolidation Act 1935. By reason of having committed this offence Bean could be arrested, without warrant, under s 75 of the Summary Offences Act 1953 (SOA).[40] Both s 37C(3) of the CSA and s 75 of the SOA, by necessary implication, authorise police to enter private premises in order to execute an arrest.[41]

   Police receive information

   [40] Section 75 of the Summary Offences Act 1953 states:

   A police officer, without any warrant other than this Act, at any hour of the day or night, may apprehend any person whom the officer finds committing, or has reasonable cause to suspect of having committed, or being about to commit, an offence.

   [41] See Dinan v Brereton [1960] SASR 101 at 105 (Napier CJ); Wheare v The Police (2008) 180 A Crim R 396 at [52]; Police v Dafov [2008] SASC 247 at [58].

7. Detective Sergeant Campbell Hill of the Major Crime Investigation Branch was assigned the role of co-ordinating operations to secure Bean’s arrest.[42] At the time, he held the rank of Constable and was a member of the Southern Operation Service Tactical Unit based at the Sturt Police Station.

   [42] C. Hill TT 366.

8. On 8 January 2009 Bean’s movements were monitored by police surveillance officers.[43]  The evidence is somewhat unclear but it would appear that reports from those officers concerning Bean’s movements, were communicated either directly or indirectly to Hill, which resulted in Hill deciding that Bean should be arrested that day for being unlawfully at large.[44] Hill said that he understood that Bean was also wanted in relation to two theft offences.[45]

   [43] R. Bowman TT 543.

   [44] C. Hill TT 366-367.

   [45] C. Hill TT 359.

9. Hill testified that in the course of the day he received an e-mail, which was not produced, from Peter Sodomka, an intelligence officer at the Port Adelaide Police Station.[46] The e-mail suggested that Bean ‘may have had access to a firearm or multiple firearms’ and ‘had indicated a willingness to shoot it out with police’.[47] The e-mail further suggested that Bean may have been using amphetamine or methamphetamine potentially rendering him more aggressive.[48] 

   [46] C. Hill TT 360, 370.

   [47] C. Hill TT 360 see also TT 366-367.

   [48] C. Hill TT 360-361, 363.

10. Hill then checked Bean’s criminal history and ascertained that it included convictions for offences for which he was imprisoned in 2004. The offences included driving a stolen motor vehicle at four or five police officers, injuring one of them seriously and then fleeing the crime scene.[49]  By reason of this information, Hill believed that arresting Bean would be a ‘high risk’ operation requiring the assistance of the STAR Group.[50] 

    [49]  C. Hill TT 361.

    [50]  C. Hill TT 361.

11. On the afternoon of 8 January 2008 Hill telephoned Senior Sergeant Damien Eichner at the STAR Group’s Netley base and arranged for STAR Group to conduct the arrest. Hill said that he discussed with Eichner the e-mail he had received, a copy of which had also been sent to Eichner by officer Sodomka.[51] Eichner could not recall receiving any communication from Sodomka and believed that he received from Hill a document which set out Bean’s criminal history and other information relating to him.[52] In my view, the document was probably a copy of the Sodomka e-mail. 

    [51]  C. Hill TT 367-368.

    [52]  D. Eichner TT 385-386.

12. The question of whether Eichner received the e-mail from Sodomka, as Hill testified, or received it directly from Hill, as Eichner suggested, is of no significance because it is apparent that, however it came about, Eichner and Hill received the same information. There is, however, an important discrepancy in the evidence given by Hill and Eichner as to the nature of the information concerning Bean’s access to firearms. That discrepancy will be discussed in some detail at a later stage.

13. Eichner was satisfied that the proposed arrest of Bean was a high risk operation and assembled a team to execute the arrest.[53] The team consisted of seven STAR Group officers with Eichner in command (the STAR team). In addition to Eichner, three members of the team were called by the defendant as witnesses, namely Acting Sergeant (AS) Ryan Bowman, Senior Constables (SC) Mark Stanley and Barry Phillips.[54] The other three members of the team, AS Kotsaras, AS Thorn and Constable Yates were not called by the defendant because the plaintiff accepted that they did not witness any of the relevant events at his home.[55]

    [53]  D. Eichner TT 385.

    [54]  Bowman and Stanley now hold more senior positions in the police force.

    [55] The plaintiff had been provided with written statements the officers had given for the purpose of the     PCA investigation and their proofs prepared in prepared for the present proceedings. See   submissions made by plaintiff and defendant’s counsel on this issue: TT 635-636.

14. At about 9.30pm Eichner briefed his team in relation to the proposed arrest and the information he had received concerning Bean.[56] 

    [56]  D. Eichner TT 387-388; R. Bowman TT 538-541.

15. Following the briefing, the STAR team left their Netley base to arrest Bean. As I understood the evidence, the STAR team received reports of Bean’s movements over the police radio communication system from police surveillance officers who were covertly watching him. During the communications they were informed that Bean had been followed to several addresses suspected of being occupied by drug users. This information heightened the STAR team’s suspicions that Bean was using drugs at the time, and contributed to his high risk profile.[57]

    [57] D. Eichner TT 391-392; M. Stanley TT 417.

16. Bean was eventually tracked by police to the plaintiff’s home at Paralowie.

    Layout of plaintiff’s home

17. Before I turn to the events which unfolded following the arrival of the STAR team at the plaintiff’s property, it is appropriate to briefly explain the layout of the premises.[58] The front of the house faced north east.  For the sake of simplicity, I will refer to the layout of the property as if the house faced due north. As the property was located on the inside of a right-angle bend in Vindana Road, both the northern (front) and western walls of the house faced the road. Low metal grate fences, which could easily be stepped over, were located on the northern and western boundaries of the plaintiff’s property. 

    [58]  See Google map Exhibit D12; aerial photograph of plaintiff’s home (Exhibit D16); statement of Brevett Sergeant Kristen Forsyth dated 12 August 2016 and annexures thereto (Exhibit D25); photographs of the outside of plaintiff’s home Exhibit D23; photographs of the interior of plaintiff’s home Exhibit D24.   

18. The front door of the house opened into the lounge room. An internal door separated the lounge room from the dining/kitchen area at the rear of the house. The kitchen/dining area provided access to the rear exit which consisted of an internal wooden door and an external mesh security door. The security door opened onto a small concrete porch (the back porch), approximately 1 metre wide and 2 metres long. The porch stood about 20 cm above a concrete path that ran east-west at the foot of the rear (southern) wall of the house, which I will refer to as the EW path. 

19. The backyard was approximately 20 metres wide (east-west) and 7 metres deep (north-south).  It was enclosed by the southern wall of the house, the back fence and side fences. The backyard’s western side fence was constructed of wooden panels about 1.4 metres in height (the wooden fence). It was located several metres inside the low metal grate fence that ran along the property’s western boundary. The wooden fence contained a gate (the side gate) that was located near the rear south-western corner of the house. The back yard contained a grassed area divided by a concrete path that ran north-south (the NS path). That path formed a T‑junction with the EW path at the base of the back porch.

    Police establish a cordon

20. At about 10.40pm the STAR team arrived at a location (the command post) about 150-200 metres from the plaintiff’s property, where they alighted from their vehicles. Each member of the STAR team was dressed in standard operational gear (helmet, dark blue uniform, ballistics vest and boots with hard plastic toe caps). They were armed with rifles, handguns, Tasers and stun grenades.[59] Hill also travelled to that area, at some point, for the purpose of taking custody of Bean once he had been arrested.

    [59] D. Eichner TT 388-389; M. Stanley TT 416, 449; B. Phillips TT 474-475; R. Bowman TT 543-555.

21. Eichner remained at the command post while the other members of the STAR team made their way to the plaintiff’s property and set up a ‘cordon’ around the premises.  Bowman, Stanley and Thorn took up positions in Vindana Road at the front (northern side) of the plaintiff’s property.[60] Phillips, whose role was to prevent anyone entering or exiting the rear of the premises, took up a position on a small mound underneath a tree adjacent to the wooden fence of the backyard. From that position he was able to see over the wooden fence into the backyard.[61] The evidence is silent on the positions taken up by Kotrara and Yates. 

    [60] R. Bowman TT 553, 558; M. Stanley TT 418-420 (see Exhibit D5 (plan of plaintiff’s property on which SC Stanley marked his approximate position with the number 3)).

    [61] B. Phillips TT 480, 485 see Exhibit D13 (aerial photograph of plaintiff’s property upon which SC Phillips marked his approximate location with the number 4) and Exhibit D23 (photographs of plaintiff’s property including photographs of the mound (pages 3 and 9).

22. Eichner remained in communication with the officers in the cordon by means of radio handsets. He said he was informed at 11.05 pm that the cordon had been established, at 11.34 pm that Bean had been arrested and, at 11.36 pm, that the plaintiff had been detained.[62]

    [62] D. Eichner TT 393-395, 404-407.

23. I turn to the events which culminated in the plaintiff’s detention.

    Bean arrives at plaintiff’s home

24. There was no dispute that Bean and his friend Amy Riley, must have driven to the plaintiff’s home late at night by an unknown person who then immediately drove away. However, no member of the STAR team who was called to give evidence purported to witness their arrival. On the defendant’s case that was because Bean and Riley were already inside the house when the police cordon was established. 

25. The plaintiff and SNH testified that the plaintiff was having a shower when Bean and Ms Riley arrived. SNH answered a knock on the front door and allowed them inside. The plaintiff heard SNH talking to Bean and immediately got out of the shower, put on his dressing gown and went into the lounge room where he joined them.[63]  

    [63] Plaintiff TT 11-12; S. Nihill-Holder TT 125-126.

26. The plaintiff was aware that Bean was wanted by police for breaching home detention, as a result of information he had received from his mother several weeks earlier. He asked Bean ‘what are you doing here?’ but did not receive a reply. SNH then received a call on her mobile phone from a neighbour stating that the police had blocked off the street and were jumping over fences. SNH then announced that the police were outside at which point Bean quickly left the house through the back door. The plaintiff said that as Bean made his way to the back door he apologised to the plaintiff for getting him involved. The plaintiff, SNH and Riley remained inside.[64] 

    [64] Plaintiff TT 125; S. Nihill-Holder TT 125-126.

27. The evidence given by the plaintiff and SNH suggest that Bean was only in the house for a short time. However, on Eichner’s evidence, Bean is likely to have been inside for a longer period because he was arrested about 30 minutes after the police cordon was established. This conflict in the evidence is of little significance because the key issues that arise for my determination focus on the events which unfolded after Bean had left the house.

    Bean leaves house

28. After Bean went out through the backdoor, the plaintiff and SNH heard noises consistent with a struggle take place between Bean and police. The plaintiff deposed that he heard a police officer call out to Bean, ‘Get on the fucking ground or we will shoot’ and demand that Bean put his hands behind his head. He said he heard Bean scream and insist that he was not resisting. He also heard noises consistent with a violent struggle taking place and ‘arcing sounds’, which he associated with the use of a Taser.[65]

    [65] Plaintiff TT 12-13.

29. SNH gave similar evidence. She said she heard a police officer tell Bean to ‘get the fuck on the ground’. She then heard the sounds of people struggling, Bean scream in pain and the sounds of ‘electricity’, which she assumed were generated by a Taser.[66] Both SNH and the plaintiff testified that SNH became distressed by what she had heard and that he tried to reassure that the incident would soon be over.[67] I accept the evidence given by the plaintiff and SNH on this topic. It is hardly surprising that a 13 year old girl would be distressed by such events.

    [66] S. Nihill-Holder TT 125-126, 203-204.

    [67] S. Nihill-Holder TT 126.

30. The descriptions given by the plaintiff and SNH of the noises they heard outside are generally consistent with the circumstances of Bean’s arrest, as described by the defendant’s witnesses.

31. Phillips was the first police officer to see Bean. As mentioned, from his position on the mound adjacent to the wooden fence he was able to see over the fence into the backyard.  He recalled that there was a light on near the back door (possibly a single light bulb) which illuminated ‘the immediate vicinity of the rear door.’[68] However, the rest of the backyard was ‘quite dark’.[69]

    [68] B. Phillips TT 484.

    [69] B. Phillips TT 484.

32. Phillips said that he subsequently saw Bean standing on the back porch about five metres from where he was positioned behind the fence. He said that Bean appeared relaxed and was smoking a cigarette at time.[70] Phillips then pointed his rifle at Bean, identified himself as a police officer and told him to ‘get on the ground’. Bean smirked and failed to comply with this direction despite Phillips repeating it several times.[71] Bowman and Stanley testified that they heard Phillips call out to Bean and ran from their cordon positions into the backyard through the side gate.[72] Bean was then arrested.  

    [70] B. Phillips TT 489 (Phillips said that he had no memory of seeing Bean walk through the back door onto the back porch).

    [71] B. Phillips TT 489-490.

    [72] R. Bowman TT 556, 560.

33. Before I turn to the circumstances of Bean’s arrest, I point out that I do not accept Phillips evidence about the manner in which Bean was behaving when he first saw him. I accept the evidence given by the plaintiff and SNH that Bean quickly left the house when he became aware that the police were outside. In the circumstances, Bean is unlikely to have been in a relaxed mood or smoking a cigarette. Indeed, Phillips is the only witness who claimed that Bean was smoking immediately before he was arrested.

34. It is not necessary to canvass in detail the evidence given by the three police officers in respect of the circumstances of Bean’s arrest. It is sufficient that I express my findings in relation to those events. Those findings are: 

    ·Bean had stepped off the back porch onto the EW path by the time Bowman and Stanley entered the backyard. Bowman ran up to Bean and applied a ‘standard restraint hold’ on one of Bean’s arms, which involved grabbing his wrist with one hand, and his arm above the elbow with the other hand.[73]

    ·Bean reacted aggressively and tried to pull away from Bowman. Bowman forced him onto the ground and pinned him down by pressing a knee into his back and then, with assistance from Phillips, secured Bean’s hands behind his back with ‘flexicuffs’ (plastic zip tie handcuffs).[74]

    ·Stanley assisted his colleagues to restrain Bean by using his Taser. He placed the device in ‘stun mode’ by removing the cartridge which fires electronically charged projectiles attached to copper wires. The removal of the cartridge exposed the prongs at the end of the Taser’s barrel which he pushed into one of Bean’s hamstrings to administer the charge.[75]

    ·Bean was searched by Bowman after he was restrained. The search revealed that he was not carrying a firearm.[76]

    [73] B. Phillips TT 489-490; R. Bowman TT 562-564, 571-573.

    [74] B. Phillips TT 489-490; R. Bowman TT 565-566, 574.

    [75] M. Stanley TT 452 (SC Stanley decided against firing the cartridge at Bean because it may have resulted in an accidental administration of a shock to officers attempting to restrain him: TT 437-438).

    [76] R Bowman TT 566.

35. There is some confusion in the evidence given by the three officers, summarised below, in respect of the events which immediately followed the arrest and search of Bean:

    ·Phillips said that Stanley and Bowman took Bean from the backyard through the side gate while he remained in the backyard watching the backdoor with his rifle pointed towards it because it was unknown whether there was anyone inside the house who might pose a threat to police.[77] His concern in that regard was heightened by the possibility that Bean may have left the firearm that he was suspected of carrying, inside the house.[78]

    ·Stanley insisted that he did not leave the backyard with Bean.[79] He said he kept a watch on the backdoor because it was ‘still unclear where the firearm was and if other people were in the house’.[80]

    ·Bowman recalled that Bean was not removed from the backyard at all. He said that the officers escorted Bean to an area closer to the back fence where he was left, guarded by Stanley.[81] Bowman said that as a result of not locating a firearm on Bean he was concerned that Bean may have left it inside. For that reason, Bowman and Phillips took up positions near the back porch and monitored the back door in case anyone emerged from the house with the firearm.[82]   

    Directions given for house to be vacated

    [77] B. Phillips TT 495-496, 503-506.

    [78] B. Phillips TT 501, 510.

    [79] M. Stanley TT 438-439.

    [80] M. Stanley TT 445.

    [81] R. Bowman TT 566-567, 569, 570-571.

    [82]  R. Bowman TT 569-570, 577.

1. There is no dispute that shortly after Bean was arrested directions were given by Phillips for the house to be vacated. However, there is dispute as to the precise nature of the directions that were given. The plaintiff said that he heard an officer call out, ‘will the tenant of 36 come out with your hands on your head, or we’ll throw a percussion grenade, a stun grenade, we’ll throw that in and we’ll drag you fucking out’. The plaintiff replied: ‘You can come in’. The plaintiff alleged that the officer then made the following threat: ‘If you don’t come out now walking backwards with your hands on your head, we’ll fucking drag you out’. He then left the house walking backwards through the back door with his hands behind his head.[83]

   [83] Plaintiff TT 13-15.

2. SNH gave similar evidence except that she did not purport to hear the threat alleged by the plaintiff. She said that an officer called out for ‘the owner of 36 Vindana Road to come to the back door, walking backwards with his hands on his head’ to which the plaintiff replied: ‘come in’. After the officer repeated the direction the plaintiff walked from the lounge room through the dining room to the back door. He saw him turn around and walked backwards through the back door.[84]

   [84] S. Nihill-Holder TT 127 -128, 221, 224-225, 228, 231-232.

3. Phillips admitted that he was the officer who had shouted out directions. He said that he called out, more than once, for any remaining occupant to come out of the house or words to that effect. At one point, he heard the plaintiff reply that he wanted the police to leave because they had who they wanted.[85] It should be observed that Phillips was not examined or cross-examined on whether he made a threat that a grenade would be thrown into the house and the plaintiff dragged outside if he failed to comply with Phillips’ directions.

   [85] B. Phillips TT 501.

4. In relation to the manner in which the plaintiff should exit the house, Phillips could not remember telling him to come out backwards with his hands on his head.  However, in response to questions from me, he agreed, in the passage set out below, that he would have given such a direction if he suspected that a person was in possession of a firearm:[86]

   [86] B. Phillips TT 532-533.

   QDid you give a command for him to come out backwards?

   AI don't remember, your Honour. I don't remember receiving enough compliance from Mr Holder to have gone that far.

   QWould that be a safe way requiring someone to leave a house if you believe they may have access to a firearm.

   AIf I believe they were armed I generally would get them to walk backwards towards me, yes.

   QWith their hands up behind their head.

   AYes, your Honour.

   QWell, bearing in mind that you had information that this was a high risk situation and that you believed or suspected that there might be a gun or guns in the house or on Mr Holder is it possible that you gave a command for him to come out of the house backwards with his hands up behind his head.

   ABased on my experience no because it generally required a level of compliance I wasn't receiving that night. Somebody has to - they generally have to have stopped and be willing to comply with instructions before we get to that stage.

   QBut why would it matter whether they're compliant or not.

   ABecause a man who's walking towards me who represents a threat I am going to tell him to stop and get on the ground.

   QNo, I think you may have misunderstood me.

   AOkay.

   QBefore he came out of the house –

   AYes.

   Q- did you order him or was it possible that you ordered him to come out of the house backwards with his hands –

   AOkay.

   Q- up behind the back of his head.

   AYes, it is possible, yes.

5. However, Phillips went on to say that if he had given such a direction then the plaintiff clearly disobeyed it.[87]

   [87] B. Phillips TT 532, 534.

6. Stanley purported to have a vague memory of the directions that were given to the occupants. He said he heard one of his colleagues give directions to the people inside the house. However, he could not recall who gave the directions or what was said.[88] He also had no memory of whether there was any reply from within the house.[89]

   [88] M. Stanley TT 441-442.

   [89] M. Stanley TT 442.

7. Bowman agreed that Phillips gave directions which included telling the occupants to come out with their hands up. He said that such a direction was ‘standard’ police procedure. He could not recall whether Phillips further directed the occupants to walk out backwards. However, in response to questions from me he said that such a direction was an accepted ‘safety procedure’ adopted by police.[90]

   [90] R. Bowman TT 576-577.

8. Bowman testified that the plaintiff replied to Phillips’ directions in a ‘confrontational manner’ but could not recall what the plaintiff said.[91] I find, in accordance with the evidence given by the plaintiff, SNH and Phillips that the plaintiff, in response to the direction to vacate the house, told police that they could come inside. I find that Bowman interpreted those remarks as a confrontational act of defiance. 

   [91] R. Bowman TT 578, 584.

9. There is no dispute that Phillips gave directions for the house to be vacated. The contentious issues on this topic are:

   ·first, whether the plaintiff was directed to walk backwards through the backdoor;

   ·second, whether the directions were accompanied by threats that a stun grenade or some similar article would be thrown into the house if the plaintiff failed to comply with Phillips’ directions;

   ·third, whether the directions that I find were given constituted an assault; and,

   ·fourth, if the answer to the third question is ‘yes’, whether the directions were given with lawful authority.

10. I will analyse these issues later.

    Incident in backyard

11. It is the plaintiff’s case that after he walked backwards through the back door onto the porch with his hands behind his head that he was set upon.  He said in chief:[92]

    I took two steps out, he goes ‘what’s your name?’ I go ‘Stephen Holder’. The next thing my legs were taken out from under me, I hit the concrete, then one of the officers that asked me to come out, he was stomping on the back of both of my legs, because I was laying on my stomach, he was stomping on both of my legs. Then the other officer had a gun at the back of my head while I was lying down so I knew I could turn around, so I turned to the left to look at the officer who was stomping and I said 'What the fuck do you think you are doing?' and he turned around and goes 'Shut the fuck up' and booted me in the left of the head [near the front edge of the hairline].

    [92] Plaintiff TT 14-15.

12. The plaintiff testified that after he was kicked in the head the officer who had been holding a gun at the back of his head ‘placed his foot on the back of [his] head’ and rolled his head so that he was looking directly at the concrete path. The officer then ‘drove his face’ into the path which resulted in the plaintiff sustaining a large graze over his right cheekbone.[93] The plaintiff went on to say that the officer who had earlier stomped on his legs, then kicked him in the ribs. He then looked to his right and saw two police officers watching the incident. He was then removed from the backyard covered in blood.[94] He gave a consistent description of the incident in cross-examination.[95] He denied that he was mistaken about the force used against him or that he had exaggerated what occurred.[96]

    [93] Plaintiff TT 15.

    [94]  Plaintiff TT 15.

    [95] Plaintiff TT 15.

    [96] Plaintiff TT 17.

13. The plaintiff was unable to identify any of the officers involved in the incident.  He offered a broad description of the officer who allegedly kicked him in the ribs stating that he was ‘young’, ‘just under five and-a-half foot’ and had a ’very solid build’.[97] The description was unhelpful for the purpose of determining which of the defendant’s witnesses the plaintiff may have been referring to. 

    [97] Plaintiff TT 17.

14. SNH did not see the commencement of the incident because she lost sight of the plaintiff when he walked through the back door. She subsequently heard: the plaintiff say: ‘What the fuck are you doing?’; ‘thumping’ noises;[98] and sounds consistent with her father being ‘in pain’.[99] 

    [98] S. Nihill-Holder TT 233.

    [99] S. Nihill-Holder TT 128, 233. 

15. SNH then ran from the lounge room to a position about one metre from a window in the dining room which faced the back porch. An item of furniture in the lounge room prevented her from getting closer to the window. A curtain was draped in front of the window but she could see through the material because it was sheer.[100] Contrary to the evidence given by Phillips, SNH said that the back porch light was not on at the time,[101] however, there was light emanating from a street light, about ‘20 steps’ west of the house.[102]

    [100] S. Nihill-Holder TT 128, 233, 237.

    [101] S. Nihill-Holder TT 287.

    [102] S. Nihill-Holder TT 291.

16. SNH said that upon looking through the window she saw her father on the ground being kicked. She estimated that he was about ‘5-6 steps’ from where she was positioned inside the house. In chief, SNH said that she saw ‘about six people standing around [the plaintiff] kicking into him’.[103] In cross-examination, SNH corrected her estimate of the number of officers involved. She said that there were about six men standing around and that ‘at least two to three’ of them were kicking him:[104]

    QSix men beating your dad up.

    AWell, I seen people kicking into him, yes.

    QHow many people were actually kicking him.

    AWell, there was six men - my understanding, men - standing around him, so I've seen at least two to three kicking into him.

    [103] S. Nihill-Holder TT 127.

    [104] S. Nihill-Holder TT 232.

17. SNH further said that the plaintiff was lying face down and was not resisting. She estimated that he was kicked about four times.[105] SNH denied Mr Nicholas’ suggestion in cross-examination that over the ensuing years her memory of the incident may have been innocently contaminated by discussing with the plaintiff his account of what occurred. She also denied that her view of the plaintiff may have been obstructed by one or more of the officers in the backyard.[106] SNH said that as a result of what she saw she ‘freaked’ and ran back into the lounge room where she was comforted by Ms Riley.[107]

    [105] S. Nihill-Holder TT 234.

    [106] S. Nihill-Holder TT 240.

    [107] S. Nihill-Holder TT 128, 210.

18. I turn to the evidence given by the police officers in relation to the incident in the backyard.

19. Phillips said that after calling out for the house to be vacated he noticed the plaintiff standing on the back porch wearing a dressing gown. He could not recall having seen the plaintiff walk through the back door onto the porch.[108]  Phillips said that he pointed his rifle at the plaintiff’s chest and repeatedly ‘roared’ at him, ‘come out here, get down on the ground’.[109] He claimed that the plaintiff then stepped off the porch[110] and marched quickly towards him in an ‘aggressive’ manner shouting: ‘get out of here, you’ve got what you want’.[111] He appeared to Phillips ‘like a man who was ready for a fight’.[112] Phillips estimated that he was about two metres from the back door when the plaintiff began to approach him.[113]

    [108] B. Phillips TT 499.

    [109] B. Phillips TT 500.

    [110] B. Phillips TT 508.

    [111] B. Phillips TT 503.

    [112] B. Phillips TT 503.

    [113] B. Phillips TT 504.

20. Phillips deposed that by the time the plaintiff commenced walking towards him that Bowman had re-entered the back yard. He said that Bowman took hold of the plaintiff and wrestled him to the ground. However, he could not recall how Bowman achieved that.[114] Phillips provided the following description of what happened after Bowman took hold of the plaintiff:[115]

    [114] B. Phillips TT 503-504.

    [115] B. Phillips TT 504-505, see also 506.

    Q.Could you give his Honour details of what your involvement was and any detail that you can remember about Bowman's involvement?

    A.As Bowman took him to the ground Mr Holder attempted to stand up, I believe he was face down, and he brought his knees up to his chest area in an attempt to stand. My position was a bit compromised, I still needed to provide some cover on that back door, but also I wanted to assist Bowman, so I stood on Mr Holder's leg.

    [MY QUESTIONS]

    Q.What part of his leg?

    A.His knee.

    Q.Why did you choose his knee?

    A.It would provide the best traction really to prevent him getting up.

    XN

    Q.Was this to the back, front or side of his knee?

    A.The back of his knee.

    Q.What was his reaction?

    A.I don't recall there being a reaction really.

    Q.Did Mr Holder's movements stop at the time that you put your foot on his knee?

    A.He continued, my main focus was on the back door, I could still feel him moving underneath my foot, but not to the same extent he had been, and shortly afterwards Bowman gained control of him.

    Q.What does that mean?

    A.He had him in cuffs, I believe, or flexicuffs, one of the two, I can't remember.

21. In cross-examination, Phillips agreed that when he stood on the plaintiff’s knee, the plaintiff said:  ‘What the fuck are you doing’, or words to that effect. He denied telling the plaintiff to ‘shut the fuck up’[116] and insisted that he did not use any force against the plaintiff, other than standing on his knee.[117] He specifically denied kicking the plaintiff and said that he was not in a position to see whether Bowman kicked the plaintiff because was facing the back door (pointing his rifle in that direction) and had his back turned to Bowman.[118]

    [116] B. Phillips TT 534-535.

    [117] B. Phillips TT 506.

    [118] B. Phillips TT 536.

22. In cross-examination, Phillips conceded that he was ‘not sure’ whether the plaintiff was flexi-cuffed, as he had suggested in chief,[119] and further conceded, in the following passage, that the plaintiff may not have attempted to stand up after he was taken to the ground:[120]

    Q.When you kept my leg down, or stomped on my leg. I put to you I did not try to stand up at the time.

    A. I recall your legs moving under my foot. I don’t know what you were trying to do. 

    [119] B. Phillips TT 520-521.

    [120] B. Phillips TT 521, see also TT 520.

23. Phillips said that Stanley re-entered the backyard at some stage but he could not remember what role, if any, Stanley played in the events which then unfolded. 

24. Stanley testified that he was standing near the south western corner of the back porch pointing his rifle in the direction of the back door when directions for the house to be vacated were made. He said that after some delay the plaintiff came out through the back door and walked past him in the direction of ‘the voice’.[121] Stanley could not remember how the was plaintiff dressed or whether he walked out backwards with his hands behind his head but conceded that he may have.[122] I also note that he never purported to hear Phillips direct the plaintiff to get on to the ground after he had emerged from the house, as Phillips testified.

    [121] M. Stanley TT 442.

    [122] M. Stanley TT 444.

25. Stanley deposed that after the plaintiff exited the back door he walked past Stanley’s position and was taken into custody by Phillips and Bowman. Stanley said, however, that he did not actually see his colleagues apprehend the plaintiff because he was focussed on watching the back door etc. Stanley said that he never turned around at any stage to see what was happening in relation to the plaintiff because he was focussed on watching the back door,[123] because ‘it was still unclear where the firearm was and if there were other people still in the house’.[124] Stanley was adamant that that he never saw or heard any struggle take place between his colleagues and the plaintiff. He also said that he did not participate in that incident.[125]

    [123] M. Stanley TT 442-443.

    [124] M. Stanley TT 445.

    [125] M. Stanley TT 445.

26. I turn to Bowman’s account. The officer said that after a delay of about 30 seconds, the plaintiff exited the house through the back door.[126] He could not recall what the plaintiff was wearing other than that he was ‘lightly clad’.[127] Bowman said that the plaintiff walked ‘purposefully’ in the direction of Bean (who on Bowman’s account was positioned near the back fence). Bowman asserted that the plaintiff’s conduct was in breach of directions he had been given by Phillips.  However, he could not remember what those directions were.

    [126] R. Bowman TT 584.

    [127] R. Bowman TT 584.

27. Bowman said that the plaintiff’s hands were down by his sides. However, he was not in a position to see if he was holding a firearm. He was concerned that he may have been armed because a firearm had not been located on Bean.[128] For that reason and also because the plaintiff had failed to comply with Phillips’ directions, Bowman rushed at the plaintiff from a distance of about three metres.[129]

    [128] R. Bowman TT 586.

    [129] R. Bowman TT 595.

28. By the time Bowman reached the plaintiff, he had already stepped off the porch. Bowman applied a ‘standard restraint’ hold which involved grabbing the plaintiff’s right upper arm with one hand, and the plaintiff’s wrist with his other hand.  Bowman said that he intended to force the plaintiff onto the ground in a controlled manner.[130] However, the plaintiff, suddenly and unexpectedly ‘dropped his body weight’,[131] possibly falling to his knees.[132] This caused Bowman to lose balance and stumble forwards while maintaining his grip on the plaintiff’s right arm. In the result, the plaintiff fell forwards onto a ‘path, landing on his chest’.  Bowman remained on his feet bent over the plaintiff still holding his right arm.[133] 

    [130] R. Bowman TT 584-585, 596-597, 626-627.

    [131] R. Bowman TT 584.

    [132] R. Bowman TT 590.

    [133] R. Bowman TT 586-587, 590, 595-596, 625.

29. In cross-examination Bowman insisted that he never fell on top of the plaintiff,[134] contrary to a signed statement he provided to the Office of the Crown Solicitor on 5 August 2015.[135] In that statement he said:

    I restrained him by putting his right arm behind his back.  In doing so he suddenly dropped his body weight and this threw me off balance. … I fell forward on top of him. He fell on his knees and I fell on top of him with his torso making contact with the concrete pathway.

    [134] R. Bowman TT 626, 630.

    [135] R. Bowman TT 626, 630.

30. When asked if that statement was correct, Bowman explained that he fell forwards but did not land on top of the plaintiff:[136]

    QIs that correct.

    AI recall, as I took hold of him, he dropped vertically down. I can't remember where his knees were but he would have fallen, dropped straight to the ground and, as I was trying to pull him onto the grassed area, I recall seeing his torso make contact with the pathway.

    QIs this the position: that the statement you gave to the solicitor was correct, but you did not fall on top of him. That part is incorrect.

    AI didn't fall on top him, I was able to move into a leg restraint. He pulled me off balance and I was falling I guess on top of him, and I was able to use my leg across his back in the similar fashion I did with Bean in order to restrain him.

    [136] R. Bowman TT 630.

31. I do not consider the inconsistency to be significant, contrary to the plaintiff’s submissions.

32. Bowman further testified that, as a result of the plaintiff continuing to struggle, Phillips left his position and went to Bowman’s assistance. He said that Phillips placed his boot on the back, and upper part, of one of the plaintiff’s legs while Bowman pinned him to the concrete path with a knee in his back.[137] Bowman then directed the plaintiff to stop resisting and managed to pull both of his arms behind his back. After the plaintiff was restrained, Bowman proceeded to pat search him and discovered that he was not carrying a firearm.

    Plaintiff’s removal from backyard

    [137] R. Bowman TT 587.

1. The plaintiff testified that after he was detained, the officers involved picked him up and took him from the backyard through the side gate to a location where he was required to sit down facing the western wall of the house.  He said he was ‘not [allowed] to look around’.[138] He remained there until the police eventually left. The plaintiff’s evidence was unclear on whether the police used any force against him in taking him from the backyard or whether they simply escorted him. Nevertheless, it is clear that even if he left the backyard unassisted, he did so under police instructions.

   [138] Plaintiff TT 18-19.

2. Bowman said that after he had searched the plaintiff he decided that it was no longer necessary to restrain him because he was not armed and had ‘calmed down sufficiently’. He directed the plaintiff to walk to a location within the backyard closer to the side gate where he was to sit down and await further instructions.[139] According to Bowman, the plaintiff complied and walked away ‘under his own steam’.[140] He gave no evidence about the plaintiff’s subsequent movements or dealings with police before they eventually left the property.  

   [139] R. Bowman TT 609-610.        

   [140] R. Bowman TT 588, 594.

3. In relation to his reasons for directing the plaintiff to walk to another area of the backyard, Bowman gave the following evidence:[141]

   [141] R. Bowman TT 594.

   QOnce you had established from that pat down that Mr Holder was not in possession of a firearm did you release him.

   AYes, I did.

   QDid you have any cause to further detain him at that time even though you released him?

   ANo. He was instructed to walk away and sit on the lawn. Part of that intention was so that he could be debriefed by detectives and spoken to in regards to the whole matter.

   QNow to put it bluntly, Mr Holder at that time was not the subject of any interest by police.

   ACertainly he was subject of further questioning from detectives so it wasn't a case of we wanted him to be able to walk from the property and disappear. We did want to keep him there and he was instructed to sit there and wait.

   QDid he comply?

   AYes, he did.

   QWas that a request or a requirement?

   AWell, a requirement as much as a request. He was told to go and move and sit down on the grassed area.

4. Stanley’s evidence is silent on whether or not the plaintiff was removed from the backyard.  Indeed, he gave no evidence of seeing the plaintiff after the incident in the backyard came to an end. Phillips said that after the plaintiff was brought under control he was removed from the backyard by Bowman, and possibly by Stanley as well. He said that he remained in the backyard pointing his rifle at the back door because he remained concerned that someone might emerge from the house with a firearm.[142] He said he maintained that role until he received a radio transmission from a supervisor, presumably Eichner, directing him to stand down because local police officers had arrived. 

   Females leave house

   [142] B. Phillips TT 501, 510.

5. There is no dispute that after the plaintiff was detained that SNH and Riley exited the house.

6. As mentioned, SNH said that after she saw the incident through the dining room window she went into the lounge room where she was comforted by Riley.  She said that she subsequently heard the police call out that they would ‘gas’ the house if anyone who remained inside the house did not come out within 10 seconds. SNH said that she and Riley then left the house through the back door and saw two police officers armed with ‘machine guns’. The officers then put down their weapons and took the two females through the side gate to the western wall where they were seated near the plaintiff.[143] Her evidence is silent on whether she saw Bean after she emerged from the house. The plaintiff confirmed that his daughter and Riley were brought to his location by members of the STAR team and sat down next to him. Several officers stood near them.[144]

   [143] S. Nihill-Holder TT 240.

   [144] Plaintiff TT 18-19.

7. The evidence by the police witnesses regarding SNH and Riley leaving the house was quite limited. No evidence was given that contradicted her claim that the police threatened to ‘gas’ the house if she and Riley remained inside. Phillips merely referred to seeing two women leave the backyard. He suggested that he had no further dealings with them or the plaintiff.[145] He gave no evidence of seeing Bean after he was detained or removed from the backyard. Bowman gave evidence to similar effect.[146]

   [145] B. Phillips TT 510.

   [146] R. Bowman TT 620.

8. Stanley said that several minutes after the plaintiff had exited the house he saw two females come out through the back door. Pursuant to instructions from Bowman he accompanied the females from the backyard through the side gate to the western side of the house where they were ‘sat against a wall’.[147] He could not recall whether they were instructed to go to that location. However, he acknowledged that they would have received some form of direction in that regard.[148]

   [147] M. Stanley TT 446, 447.

   [148] M. Stanley TT 445-446.

9. I note that in relation to the plaintiff’s and SNH’s allegations that officers threatened to use gas explosives, Stanley testified that it would have been unusual for such threats to have been made because formal approval was required for the use of such devices. He added that if the alleged threats had been uttered he did not hear them.[149]

   Further events at plaintiff’s home

   [149] M. Stanley TT 449.

10. The plaintiff said that when was sitting down at the western wall, he was suffering from several injuries including the graze over his cheekbone which was bleeding profusely.[150] He was approached by a member of the STAR team and an officer in ‘normal’ police uniform. They asked if he required medical assistance and he replied that he would take himself to hospital.[151] They also asked for his permission to enter and search his house for firearms. He gave his consent and subsequently heard ‘banging and crashing’ which he associated with the police searching the house.[152] The plaintiff’s evidence on this topic was not disputed.

    [150] Plaintiff TT 19.

    [151] Plaintiff TT 17-18.

    [152] Plaintiff TT 18.

11. At one point the plaintiff saw Bean in the front yard with police officers. He said he saw them search Bean and remove items from his pockets which he thought were syringes.[153] Stanley corroborated that Bean was searched at about this time. He could not remember seeing the plaintiff after he left the backyard.[154] He recalled later searching Bean and locating on him a syringe with an attached needle.[155] He then took Bean to the motor vehicle of a member of the Criminal Investigation Branch who had arrived at the scene.[156]

    [153] Plaintiff TT 19.

    [154] M. Stanley TT 445-446, 447-448.

    [155] M. Stanley TT 447.

    [156] M. Stanley TT 449.

12. The plaintiff said that he sat facing the wall with Ms Riley and his daughter until the police completed their search about 20 minutes later.[157] The police then left with Bean. No evidence was given by the plaintiff or any other witness as to the time the police left.  However, it is likely to have been well after midnight.

    [157] Plaintiff TT 18-19.

13. After the police left, the plaintiff went inside to inspect the house. As a result of the noises he had heard, the plaintiff expected to find the house in a mess but nothing appeared out of place.[158] Accompanied by SNH, he then drove Ms Riley home. He subsequently sought medical treatment, which I will discuss later.[159] 

    Lighting

    [158] Plaintiff TT 18.

    [159] S. Nihill-Holder TT 129.

14. Before I leave the circumstances of the incident, it is appropriate to outline the evidence given by the witnesses with respect to the lighting in the backyard at the time, and the ability of witnesses to see what was happening. The evidence on this topic was limited and comprised the following:

    ·     The plaintiff said that at the time of the incident there were no external lights on in the backyard. However, it ‘wasn’t that dark’ and that he ‘could see clearly’. He said the backyard was illuminated by light from the kitchen and a nearby street light.[160]

    ·     SNH said, as mentioned, that she saw the incident involving her father through the curtains hanging inside the dining room window. She said the back porch light was not on at the time, however the backyard was illuminated by light from the dining room and possibly also from a nearby streetlight.[161]  

    ·     Stanley said that he had no memory of street lighting, the state of the moonlight[162] or the state of the lighting in the vicinity of the back door.[163] When asked if he could recall the weather conditions at the time, he replied: ‘… I can say that it was dark, it wasn’t raining, and that is about all, all I think from memory’.[164]

    ^·       Phillips said that it was a warm clear night. As earlier mentioned, he noticed, while standing on the mound adjacent to the western fence, that there was a light on near the back door which illuminated the immediate vicinity of the rear door. However, he could not see the rest of the backyard ‘very clearly’ because it was ‘quite dark’.[165]

    ·     Bowman said that while he was in the backyard it was difficult to see in the darkness, although there was a degree of ‘ambient lighting’ possibly consisting of moonlight and/or nearby street lighting.[166]

    [160] Plaintiff TT 59-60.

    [161] S. Nihill-Holder TT 287-288.

    [162] M. Stanley TT 422.

    [163] M. Stanley TT 422.

    [164] M. Stanley TT 422.

    [165] B. Phillips TT 484.

    [166] R. Bowman TT 560.

15. I find that the lighting in the area of the backyard where Bowman and Phillips struggled with the plaintiff would have been poorly lit. This finding is particularly relevant to my assessment of SNH’s observations of the incident.

    Physical injuries not in dispute

16. The plaintiff alleged, and the defendant did not dispute, that he suffered various bruises, abrasions as a result of the incident in the backyard. The defendant, however, disputed that several injuries were caused in the manner asserted by him. The following is a summary of the unchallenged injuries, their causes as alleged by the plaintiff, and the causes disputed by the defendant: 

    ·lump on the left side of his head (possibly caused by an officer kicking him – disputed by defendant);[167]

    ·large graze or abrasion over the right cheekbone and a painful jaw (caused by an officer pushing his face into the concrete path with a boot on the back of the his head – disputed by defendant);[168] and

    ·swollen knees, grazes on the front of the right knee and bruises behind both knees (caused by an officer stomping on the back of his knees - defendant contended that Phillips put his boot on the back of one of the plaintiff’s knees only once).[169]

    [167] Plaintiff TT 18.

    [168] Plaintiff TT 18, 20, 22.

    [169] Plaintiff TT 18-19; photographs taken by Ashleigh Holder – Exhibit P1 (Tender Book - item 9).

    Plaintiff attends hospital

17. On 9 January 2008, the plaintiff attended the Emergency Department of the Lyell McEwin Hospital at Elizabeth. He was examined by a nurse and then left the hospital because a doctor was not available to see him for several hours.[170] The plaintiff tendered copy records from the hospital relating to his examination. The records contain the following entry:[171]

    [170] Plaintiff TT 255-256.

    [171] Lyell McEwin Hospital records - Exhibit P6.

HOLDER                 13:18        9 JAN 2009

STEVEN

2302 BACK

BLUNT INJURY MULTIPLE SITES

ALLEDGED ALTERCATION LAST NIGHT. PAIN R SIDE OF FACE (ABRASION PRESENT). BACK OF LEGS AND R SIDE OF CHEST. PAIN INCREASED WITH INSPIRATIONS. GCS 15. ALERT AND ORIENTATED.

        N

        4

WAITING ROOM (B)

1. There was some confusion in the plaintiff’s evidence as to the time he attended the hospital. In examination in-chief, he said that he went to the hospital ‘first thing’ after he had dropped Riley home. He said that he was taken there by his ‘daughter’ but did not specify which of his two daughters took him.[172] He estimated that he arrived at the hospital sometime between 1:30 am and 2:00 am. Later in-chief, the plaintiff said that after he dropped off Riley he attended the hospital ‘hours’ after the incident. He then tendered the hospital records which indicated that he was examined at about 1:18 pm on 9 January.[173] 

   [172] Plaintiff TT 20, 41.

   [173] Lyell McEwin Hospital records - Exhibit P6.

2. During cross-examination of the plaintiff, Mr Nicholas suggested that his evidence-in-chief that he had attended at about 1:30–2:00 am was deliberately false. He suggested that the plaintiff dishonestly tried to create the impression that he was in need of relatively prompt treatment. It was further suggested that he changed his evidence on as to the time of his attendance topic because of the time recorded in the hospital records. The plaintiff denied those suggestions.[174] I also reject them. I am satisfied that the plaintiff’s initial evidence as the time he attended the hospital was an honest mistake. 

   [174] Plaintiff TT 255.

3. The plaintiff’s daughter, Ashleigh Holder, confirmed the plaintiff’s attendance at the Emergency Department of the Lyell McEwin Hospital on the afternoon of 9 January 2009.  She said that she went to the plaintiff’s home at about lunchtime on that day and then drove him to the hospital. Consistent with the plaintiff’s evidence, Ms Holder said that he had grazes on his face, chest and knees, and that his knees were also swollen. She also said that he was concussed.[175]

   [175] A. Holder TT 314.

4. Either before or after the plaintiff’s attendance at the hospital, Ms Holder took seven photographs of grazes and bruises on the plaintiff’s face and body, and a further photograph of a bloodstain on the NS path a couple of metres from the southern edge of the back porch. The photographs were tendered.[176] They show the grazes and abrasions alleged by the plaintiff except in the following respects:

   ·the exhibit did not contain a photograph of the left side of the plaintiff’s head. No photograph showing the alleged lump on the left side of the plaintiff’s head was produced;

   ·it is not possible to discern from the photographs whether his knees were swollen or whether he had bruises behind his left knee as alleged by him (marks were visible behind his right knee).

   [176] Photographs taken by Ashleigh Holder – Exhibit P1 (Tender Book - item 9).

5. As mentioned earlier, the defendant did not challenge the plaintiff’s evidence that he suffered these injuries. Although they are not depicted in the photographs taken by Ms Holder, I am satisfied that they were inflicted in the course of the incident in the backyard. I further find that the bloodstain on the NS path came from one of the grazes or abrasions suffered by the plaintiff.

   Contentious physical injuries

6. The plaintiff complained that he suffered other physical injuries, which the defendant disputes, namely, concussion[177] and bruising to his left ribs (caused by a kick) and associated breathing difficulties, which lasted for about four weeks.[178]

   Rib bruises

   [177] Plaintiff TT 41.

   [178] Plaintiff TT 19 -20.

7. The plaintiff testified that the bruise to the ribs was about the size of an orange. However, in cross-examination he agreed that the photographs taken on 9 January 2008 showed no external bruising to his left side.  The plaintiff explained that at the time the photographs were taken he felt ‘internally bruised’ and that the external bruise did not appear until 2-3 days after the photographs were taken. The defendant suggested that the plaintiff’s evidence on this topic was false.  

8. I accept the plaintiff’s evidence that he suffered internal pain and discomfort in the region of his ribs which developed into an external bruise. His complaint of initial internal bruising and associated breathing difficulties, is consistent with the history he provided upon examination at the hospital, except in one respect. The examination notes state: ‘R SIDE OF CHEST. PAIN INCREASED WITH INSPIRATIONS’. The only discrepancy is that the records indicate that he complained of pain on his right side and not his left side as he testified. His recorded complaint at the hospital is likely to be more accurate because it was made when the relevant events were fresh in his memory. In any event, the discrepancy is minor. 

   Concussion

9. I accept the plaintiff’s evidence that he felt unwell after the incident and that he believed that he was concussed.[179] However, I am not satisfied that his symptoms necessarily amounted to concussion as that term is understood by the medical profession.  No medical evidence was tendered that supported a diagnosis of concussion. 

   [179] Plaintiff TT 19.

10. The plaintiff sought to rely upon evidence given by his daughter Ashley. She said that the nurse who examined the plaintiff at the Lyell McEwin Hospital remarked during her examination of the plaintiff that he was concussed.[180] That evidence must be disregarded because it constitutes inadmissible hearsay. 

    [180] A. Holder TT 314.

11. The plaintiff also relied upon a Notice of Determination dated 25 February 2011 (the Notice) which he received from the Accredited Freedom of Information Officer of the Lyell McEwin Hospital in response to an application made under the Freedom of Information Act 1991. The Notice states:[181] 

    Dear Mr Holder

    Access to copies of your medical record under the Freedom of Information Act 1991, couched thus:

    “POLICE ASSAULT ON 9 FEBRUARY 2009, DAMAGES CAUSED-CONCUSSION”

    I refer to your application for access to information pursuant to Section 13 of the Freedom of Information Act 1991 (“the Act”). Please be advised that a determination was made by the writer as per section 23 of the Freedom of Information Act on 25 February 2011. Access to the information has been granted. Please find enclosed a photocopy of the documents required by you. There are no other documents found in our medical file.

    …

    [181] Letter from Lyell McEwin Hospital dated 25 September 2011 - Exhibit P7; letter generated as a result of an application under the Freedom of Information Act 1991 by the plaintiff’s then solicitor, P. Liptak, for production of hospital records (emphasis added).

12. The plaintiff suggested that the reference to concussion in the Notice was an acknowledgment that he had been diagnosed with concussion. It constitutes no such evidence. The word ‘concussion’ was used in reference to his application for documents relevant to his claim that he had suffered concussion as a result of having been assaulted by police. 

13. This brings me to a point made by the defendant. As set out, the hospital records (see [108]) contain the notation ‘GCS 15’. Mr Nicholas suggested, during cross-examination of the plaintiff, that the notation referred to his score on the Glasgow Coma Scale and that the number 15 on that scale indicated that the plaintiff was alert and orientated at the time of his examination.[182] However, no expert medical witness was called to establish that the notation meant what Mr Nicholas asserted and it is not a matter of which I can take judicial notice.  Accordingly, Mr Nicholas’ suggestion must be ignored.

    [182] Plaintiff TT 258-261.

14. In the result, there is no evidence as to whether or not the plaintiff was diagnosed with concussion when he attended the hospital Emergency Department. Nor is there any evidence as to whether or not the examining nurse considered him to be alert and orientated. However, as mentioned, I am satisfied that immediately following the incident the plaintiff felt unwell and believed that he was concussed due to some form of blow to the head. Whether or not he was in fact concussed, in a medical sense, is something I cannot determine on the evidence before me.

    Further examinations

15. The plaintiff and Ms Holder testified that after the plaintiff left the hospital he consulted his mother’s general practitioner, Dr Ward, at Salisbury.[183] The plaintiff said that, as a result of the doctor recommending X-rays, he attended Benson’s Radiology at Salisbury a few days later for that purpose. The X-rays revealed that he had not suffered any form of skeletal injury.[184]

    Dental problems

    [183] Plaintiff TT 20; A. Holder TT 314-315.

    [184] Plaintiff TT 22.

1. Ms Hamilton considered that the ‘length of time since the incident and [the plaintiff’s] ongoing experience of pain were having a major detrimental impact on his mood and symptoms of post-traumatic stress’. She reported that she had discussed various strategies with the plaintiff to assist him with relaxation, sleep and depression.

   Plaintiff examined by Dr Raeside

2. During 2013 the plaintiff was also seen by psychiatrist, Dr Craig Raeside, pursuant to a request from the Crown Solicitor’s Office.

3. Dr Raeside, who was not called to give evidence, prepared a report dated 11 October 2013.[298] His report was tendered on the limited basis that it was part of the material to which Dr Clarke had regard when he prepared his report and gave evidence.[299] In his report Dr Raeside expressed the following opinion:

   Based on the information available to me and from my interview with Mr Holder I believe that he suffered a Chronic Posttraumatic Stress Disorder and Major Depressive Disorder as a direct response to the current incident. However, his posttraumatic stress symptoms appear to have improved significantly in recent times, but he continues to have some residual re-experiencing and avoidance symptoms. His depression has also improved, but he continues to have ongoing chronic depressive symptoms, likely perpetuated by ongoing difficulty in receiving adequate treatment for his dental injuries, with associated chronic pain.

   [298] Report of Dr Craig Raeside dated 11 October 2013 (Exhibit P2 - Book of Medical Reports at p.149).

   [299] Submissions by defendant’s counsel TT 325 -326.

   Plaintiff continues to consult Ms Hamilton

4. Throughout 2013 and 2014 the plaintiff continued to consult Ms Hamilton. 

5. Ms Hamilton provided a report to the plaintiff’s solicitor dated 24 August 2014.[300] The report stated that the plaintiff was still suffering from ‘Chronic PTSD and Major Depression’ and that his psychological health had deteriorated ‘remarkably’.[301]  

   [300] Report of Jo-Anne Hamilton dated 20 February 2013 (Exhibit P2 - Book of Medical Reports at p.139).

   [301] Report of Jo-Anne Hamilton dated 20 February 2013 (Exhibit P2 - Book of Medical reports at p.145).

6. Ms Hamilton considered that the plaintiff was suffering from PTSD for the following reasons:[302]

   Mr Holder meets the criteria for [PTSD] in that he was exposed to an event during which he was confronted with the threat of death or serious injury as well as the perceived threat to the physical integrity of his daughter. At the time of the incident, Mr Holder was primarily concerned that his daughter not be exposed to the violent actions of others. Mr Holder reported experiencing intense fear, helplessness and horror at the time of the incident. Following the incident he has suffered persistent and distressing recollections of the alleged assault. He has experienced flashbacks related to the alleged assault. He experiences intense psychological and physiological distress on a daily basis when managing his dental care as the damage to his teeth is a constant reminder of the incident. Mr Holder actively avoids social interactions due to his embarrassment over his physical appearance as well as heightened anxiety and physiological reactivity. Over the past five years since the alleged assault he has attempted to reconnect with previously enjoyed activities such as fishing but he has found it difficult to maintain a level of motivation. Mr Holder at this time is not hopeful of the future and the possibility of returning to a “normal” working and social life. Mr Holder experiences difficulty with sleeping due to pain and persistent nightmares and hypervigilance. He presents as anxious and “edgy” when outside the perceived safety and comfort of his home environment.

   The above symptoms have persisted for more than one month and have caused clinically significant distress and impairment in his social and occupational capacity as well as in his capacity to operate effectively in his role as a father and carer for his daughters.

   [302] Report of Jo-Anne Hamilton dated 20 February 2013 (Exhibit P2 - Book of Medical reports at p.145).

7. Ms Hamilton further concluded that the plaintiff continued to suffer from Major Depression:[303]

   I would also consider that over the past four years Mr Holder has presented with persistent symptoms of Major Depressive Disorder in that he has suffered a chronic low mood state; agitation; changes in his appetite (of course, this is also related to the physical condition of his teeth); a sense of hopelessness and helplessness; difficulties sleeping; and feelings of worthlessness.

   [303] Report of Jo-Anne Hamilton dated 20 February 2013 (Exhibit P2 - Book of Medical Reports at p.146).

8. Ms Hamilton noted that the plaintiff had been diagnosed with both PTSD and Major Depression as a result of the glassing incident in 1996, but considered that the incident involving the police was sufficiently distressing to account for his current diagnosis:[304]

   I note that Mr Holder had previously been diagnosed with both PTSD and Major Depression as a result of a workplace assault in 1996. I further note from the specialist reports, his Depression and PTSD had “settled” by the year 2000. It is likely that the alleged assault which occurred in February 2009 retriggered some of the symptomology related to the previous assault, most particularly because the latter resulted in damage to his teeth. I would consider however that the alleged assault which occurred in February 2009 has been sufficiently distressing to account for his current experience of PTSD and Depression. This has been exacerbated by the length of time it has taken for some sort of resolution for that incident.

   [304] Report of Jo-Anne Hamilton dated 20 February 2013 (Exhibit P2 - Book of Medical Reports at p.146).

9. Ms Hamilton said that she was ‘not optimistic of an improvement in the plaintiff’s psychological health’ because of the ‘severity of his condition’.

   Arson

10. On a night in October 2014,[305] the plaintiff’s motor vehicle was deliberately set on fire outside his home at Paralowie by an unknown person. The plaintiff testified that the motor vehicle was set alight the day after he appeared in the District Court on an interlocutory hearing in respect of the present proceedings. He said that as a result of the arson he feared for his life.[306] In cross-examination, the plaintiff denied that he suspected the police were responsible for the arson.  However, I accept the evidence given by Dr Clarke that when he interviewed the plaintiff on 30 June 2015 he indicated that it was his belief that the police had set his car on fire as a warning to ‘back off’ from his claim.[307]

    [305] The day on which the arson occurred in October 2014 is not mentioned in the evidence.

    [306] Plaintiff TT 138-139.

    [307] Dr M. Clarke TT 668-669; Report of Dr Michael Clarke dated 17 July 2015 at p.4 (Exhibit P2 - Book of Medical Reports at p.114).

11. Following the arson, the plaintiff consulted Ms Hamilton on 14 October and 29 November 2014.[308] He informed her of the arson and expressed concern for his safety and arranged for her to write Housing Trust SA to see if they could provide him housing in another area. Apparently his request for new housing was unsuccessful.

    [308] J Hamilton TT 153-154; Plaintiff TT 138.

    Plaintiff examined by Dr Clarke

12. On 30 June 2015 Dr Clarke examined the plaintiff, pursuant to a request made on behalf of the defendant by the Crown Solicitor’s Office.

13. Dr Clarke prepared a report dated 17 July 2015 in relation to the examination.[309] The report challenges the validity of aspects of the reports prepared by Ms Hamilton and Dr Raeside.

    [309] Report of Dr Michael Clarke dated 17 July 2015 (Exhibit P2 - Book of Medical Reports at p.111).

14. The report sets out the plaintiff’s symptoms as described by him to Dr Clarke. In essence, the plaintiff claimed that he was feeling depressed, anxious and suffered sleep disturbance, reduced appetite and lack of energy. He also described being hypervigilant and irritable because he feared that he may be in danger. He complained that his concerns about his safety had resulted in him leading a restricted lifestyle which had served to exacerbate his problems. The plaintiff claimed that he also suffered nightmares but was unable ‘to describe the content or their relation to any particular traumatic event’. Dr Clarke noted that the plaintiff had failed to describe clear ‘flashback’ phenomena and considered that the history he gave of experiencing flashbacks was unconvincing.

15. The plaintiff told Dr Clarke that, his ‘major ongoing issue was the pain in his mouth’ which had ‘affected him so much that he felt suicidal’. However, he admitted that he was no longer in pain because the teeth which had been causing him problems had been removed. He had paid for their removal after he had received an inheritance from his father who had passed away two years earlier.  Although the plaintiff conceded he was no longer in pain, he maintained despite that, his mental state had not improved.

16. Dr Clarke observed:[310]

    Despite his restricted lifestyle, Mr Holder described by being able to complete all activities of self-care and general household tasks. He also described regular contact with family and supporting his mother, including taking her to appointments. In my opinion, any psychiatric condition he is suffering is not severe.

    [310] Report of Dr Michael Clarke dated 17 July 2015 (Exhibit P2 - Book of Medical Reports at p.118) (emphasis added).

17. Dr Clarke provided the following diagnosis:[311]

    I do not consider that Mr Holder is currently suffering from PTSD and Ms Hamilton’s reports do not give adequate information to confirm that Mr Holder has been suffering PTSD in relation to the incident with Police on 8 January 2009. Her description of Mr Holder’s symptoms seems to confuse his reaction to the claimed consequences of that incident in relation to his dental pain as causing symptoms rather than the trauma itself.

    I consider it appropriate to make a diagnosis of a Major Depressive Disorder which would explain Mr Holder’s depressive symptoms. As noted, I do not consider that Mr Holder’s history or his presentation is consistent with him suffering from more than a mild to moderate extent of such a disorder.

    I consider that Mr Holder’s anxiety related symptoms appear in excess of anxiety not uncommonly seen in a Major Depressive Disorder. I consider that this warrants an additional diagnosis. To avoid the use of clumsy diagnoses such as an Adjustment-like Disorder, it may be more appropriate to concede that Mr Holder suffered PTSD for a period from 2009 but this is now in partial remission. Mr Holder’s history, which is not contradicted by evidence provided, suggests that he was not suffering PTSD or a Major Depressive Disorder in the period immediately prior to the subject incident on 8 January 2009.

    Mr Holder’s conditions have become somewhat chronic and have been exacerbated by various issues not directly related to the subject incident.

    [311] Report of Dr Michael Clarke dated 17 July 2015 (Exhibit P2 - Book of Medical Reports at p.118) (emphasis added).

18. Dr Clarke elaborated on his conclusion that the plaintiff’s PTSD symptoms were in remission:[312]

    I consider that Mr Holder’s PTSD, now in partial remission, was initially precipitated by the incident of 8 January 2009. I consider it was likely to have gradually improved with time but was exacerbated by the fire damage to his car in October 2014. Mr Holder claimed that this incident was considered an act of attempted murder by SAPOL. Although I do not consider that Mr Holder is currently suffering from PTSD, the PTSD symptoms he continues to have would appear to be significantly related to that more recent incident. He said that he wakes in the morning at the same time as the firebombing and he is now hypervigilant about noises around his house.

    [312] Report of Dr Michael Clarke dated 17 July 2015 (Exhibit P2 - Book of Medical Reports at p.118-119).

19. In relation to the plaintiff’s Major Depressive Disorder, Dr Clarke stated:[313]

    I consider that Mr Holder’s Major Depressive Disorder has been contributed to by a number of factors. He described being particularly affected by the dental pain he was experiencing from 2009 up until his complete dental clearance about two years ago. Mr Holder did not discuss the issue with me, but I note that Ms Hamilton also pointed out his distress over his appearance with broken teeth and I understand from the dental reports his teeth were also significantly decayed.

    Mr Holder would also appear to have placed a great deal of emphasis on his claim for compensation and a significant aspect of his distress has been the delays in the litigation process including breaks in his own legal representation and other hold ups along the way. He also described other issues including the death of his father, the fire damage incident to his car in October 2014 and concern about his daughters. Although there are significant contributors from Mr Holder’s feelings of injustice, a loss of trust and fears for his personal safety, I do not believe that Mr Holder’s Major Depressive Disorder could be simply seen as a consequence of the incident on 8 January 2009.

    [313] Report of Dr Michael Clarke dated 17 July 2015 (Exhibit P2 - Book of Medical Reports at p.119).

20. Dr Clarke offered the following prognosis:[314]

    I consider that a major factor related to Mr Holder’s prognosis is the resolution of the litigation process. Mr Holder gave me the impression that he has placed a great deal of emphasis on his claim for compensation and acknowledges that once it is finalised, he will be able to move on. At the moment, he acknowledges that he is preoccupied with the 2009 incident and the various ways he believes it has affected his life. It would appear that, as often occurs in these circumstances, he sees the ramifications of his life to be broader than perhaps is warranted. I do not believe that Mr Holder’s conditions are severe and with further treatment and resolution of his claim, I consider that he has a reasonable prognosis for further improvement of his symptoms. This is likely to allow him to lead a less restricted lifestyle but I believe him returning to employment is more likely to relate to his motivation once his symptoms improve.

    [314] Report of Dr Michael Clarke dated 17 July 2015 (Exhibit P2 - Book of Medical Reports at p.120).

21. In relation to Dr Raeside’s report, Dr Clarke made the following comments:[315]

    I am in general agreement with Dr Raeside’s report although differences will be found in my answers to the same set of questions compared to his. I note that while Dr Raeside has made a diagnosis of chronic PTSD, he acknowledges that the condition has improved and considers that Mr Holder was suffering from residual symptoms at the time of his assessment. In my opinion, it is more appropriate to suggest that this is a case of PTSD in partial remission rather than a chronic condition. Dr Raeside also indicates that his Major Depressive Disorder had improved.

    It would appear that when Mr Holder saw Dr Raeside on 9 October 2013, he had not at that time undergone the dental clearance he told me that he has since had. Him having undergone that procedure has removed the significant stress of the pain he was experiencing. I note that Dr Raeside makes a fairly straightforward association between the incident and Mr Holder’s conditions and the subject incident whereas I believe that other factors are involved. Particularly with his current presentation, an incident occurring a year after he saw Dr Raeside, being the fire damage to his car, would appear to have significantly exacerbated his conditions. I also note that Dr Raeside did not highlight the importance of the litigation process in Mr Holder’s presentation which I consider to be a very significant aspect.

    Expert witness testimonies

    [315] Report of Dr Michael Clarke dated 17 July 2015 (Exhibit P2 - Book of Medical Reports at p.121).

22. It is not necessary to canvass in any detail the evidence given by Ms Hamilton and Dr Clarke on the trial because in essence they adhered to the opinions expressed in their reports.[316]

    [316] J. Hamilton TT 151-152, Dr M. Clarke TT 643.

23. The effect of Ms Hamilton’s reports and testimony is that as a result of the incident with STAR team the plaintiff suffers from two psychiatric conditions, namely: PTSD and Major Depression. The validity of her diagnoses assumed that the plaintiff had provided her with a truthful and reliable history.[317]

    [317] J. Hamilton TT 161, 163, 164.

24. Ms Hamilton said that the plaintiff’s symptoms of Major Depression were:[318]

    ·chronic low mood state;

    ·agitation;

    ·feelings of hopelessness, helplessness, and worthlessness;

    ·changes in appetite (also related to the physical condition of his teeth); and

    ·difficulties sleeping.

    [318] Report of Jo-Anne Hamilton dated 20 February 2013 (Exhibit P2 – Book of Medical Reports).

25. Ms Hamilton considered that the plaintiff’s PTSD symptoms comprised the following:

    ·intense psychological and physiological distress when managing his dental care because the damage to his teeth was a constant reminder of the incident;

    ·‘heightened anxiety and physiological reactivity’ and avoidance of social interactions stemming from embarrassment over his damaged teeth;

    ·‘flashbacks’ of the incident;

    ·‘lack of motivation to engage in recreational pursuits, such as fishing, that he had previously enjoyed;

    ·anxiety and hypervigilance when outside the perceived safety and comfort of his home; and

    ·difficulty sleeping due to pain, persistent nightmares and hypervigilance.

26. It is important to note that the symptoms Ms Hamilton attributed to PTSD included symptoms associated with the plaintiff’s damaged teeth. When giving evidence Ms Hamilton could not recall whether the plaintiff told her that his teeth were damaged during that incident or whether he said that his dental problems were subsequent to, but a consequence of, the incident. Ms Hamilton was unable to find her notes of the history she had taken from the plaintiff on this topic but said that she was pretty sure that he had told her that the damage occurred at the time of the incident.[319] 

    [319] J Hamilton TT 166-167.

27. As earlier stated, I am satisfied that the plaintiff suggested in both his evidence and interviews with Ms Hamilton and Dr Clarke that his teeth were damaged during the incident.  Be that as it may, it is clear that Ms Hamilton’s PTSD diagnosis is based, at least in part, on her understanding that the plaintiff’s post-incident dental problems were either a direct or indirect consequence of the incident.[320] As the defendant argued, this assumption on Ms Hamilton’s part, which the plaintiff now concedes is wrong, undermines the validity of her PTSD diagnosis and her prognosis.

    [320] J Hamilton TT 164-167, 192.

28. The effect of Dr Clarke’s report and testimony is that the plaintiff suffered from a Major Depressive Disorder to a ‘mild or moderate extent’ at the time of his examination of the plaintiff.  The condition could not be ‘simply seen simply a consequence of the incident on 8 January 2009’. Other contributing factors were: (i) dental pain and associated stress (which is no longer the case due to the removal of his problem teeth in 2013); (ii) distress caused by delays in litigation; (iii) the death of his father; (iv) the fire damage to his motor vehicle; (v) concerns about his daughters; and, (v) ‘feelings of injustice, a loss of trust and fears for his personal safety’.

29. In Dr Clarke’s opinion, the plaintiff was not suffering from PTSD when he examined the plaintiff. Furthermore, he doubted that the plaintiff was suffering from PTSD when seen by Ms Hamilton. In that regard Dr Clarke contended that Ms Hamilton had taken into dental pain as the cause of symptoms rather than focussing on the trauma of the incident as the cause of symptoms. Dr Clarke elaborated on this point in his examination-in chief:[321]

    …I wasn't convinced from Ms Hamilton's report that I would have made such a diagnosis, and because her list of symptoms that he reported to her seemed to confuse effects of his dental pain with the effects of the trauma of his incident with the police. And the important thing about post-traumatic stress disorder is that it is a trauma, a specific trauma that, in itself, becomes a major focus of a person and affects their functioning and the memory of it becomes a significant aspect of their existence in terms of intrusive recollections, anxiety in response to reminders of it. And Ms Hamilton did not list and set out what I consider to be a full hand of symptoms that would have made me clearly diagnose PTSD. However - and this is what I'm trying to say in my report. …

    She started to bring in issues about the dental pain and the effects of the dental pain as causing alterations in his mood and his responsiveness and his view of himself and his place in the world, and that is removing it from the actual trauma of the incident with the police. Because for PTSD it is a trauma that then has this lasting and devastating effect on this person and it is the memories of that trauma and the effect of it and it's not so much the after-effects, like the problems with his teeth, it's the actual trauma that is relived and intrudes on a person's consciousness down the track. Someone with clear PTSD, it's really quite startling how this occurs. Unfortunately there are so many people who are diagnosed with PTSD that that is actually not really how it works. All sorts of other things come into play and I think this is my concern …

    [321] Dr M. Clarke TT 653-654.

1. Dr Clarke considered that when he examined the plaintiff he was not suffering from PTSD.  However, he accepted that the plaintiff was suffering from symptoms not commonly seen in patients suffering from merely Major Depression.  He concluded that those symptoms warranted an additional diagnosis of an ‘Adjustment-like Disorder’ but  to avoid unnecessary complexity he was prepared to concede that the plaintiff suffered ‘PTSD for a period from 2009’. However, Dr Clarke was satisfied that the condition was in partial remission at the time of the plaintiff’s examination in 2015. Furthermore, the plaintiff’s PTSD type symptoms were ‘significantly related’ to the arson incident.

2. In examination-in-chief, Dr Clarke further explained his reasoning:[322]

   To me [a diagnosis of an Adjustment Order] becomes a somewhat clumsy way of putting something. All we can really say is there was some ongoing effect of that particular incident with the police, and so I don't dispute that. And what I've said in my report is that perhaps the easiest way to describe this is to actually say, well, let's call this that he did at some point suffer from PTSD but, when I'm seeing him so many years later, that is in partial remission because certainly when I saw him I did not consider that he was suffering from PTSD…

   [322] Dr M. Clarke TT 655 (emphasis added).

3. As emphasised above, Dr Clarke did not dispute that the plaintiff was suffering the ongoing effect of the incident involving the STAR team. He offered a ‘rough ballpark’ apportionment of the incident having contributed to 25% of the plaintiff’s presentation.

   Consideration

4. It would appear that the plaintiff suffered Major Depression and possibly PTSD as a result of the glassing incident in 1996. The primary causes of his depressive state were the damage to his teeth and the delay in getting his teeth repaired. 

5. There is no dispute that the plaintiff was not experiencing any significant mental health issues immediately prior to the incident involving the STAR team on 8 January 2009. His recovery by that time can be substantially attributed to the success of the dental treatment work he had received by about 2000.

6. During the months and years following the incident on 8 January 2009 the plaintiff experienced further dental problems that were not related to the incident. He suffered pain from decaying teeth, loss of crowns and associated problems. He also suffered from acute embarrassment due to the loss of teeth. I am in no doubt that the plaintiff’s dental problems adversely affected him physically and mentally. They were the primary cause of the plaintiff’s symptomology and the difficulties he experienced.

7. I accept Dr Clarke’s criticisms of Ms Hamilton PTSD diagnosis in that she appears to have treated the plaintiff’s post-incidental dental pain as the cause of PTSD symptoms rather than focussing on the trauma of the incident as the cause of symptoms. The validity of Ms Hamilton’s PTSD diagnosis is further undermined by her having assumed, wrongly as it turned out, that the plaintiff’s dental problems were a direct or indirect consequence of the incident. I am not prepared to accept Ms Hamilton’s grounds for concluding that the plaintiff suffered from PTSD as a result of the incident. Nor do I accept her gloomy prognosis.

8. I accept Dr Clarke’s opinion that since the incident the plaintiff has suffered from Major Depression substantially caused by his dental problems, the delay in litigation, the death of his father and the arson as well as symptoms that cannot be satisfactorily explained by a diagnosis of Major Depression. Whatever their cause might be, I am satisfied that they are probably the product of a psychiatric illness caused by the incident with the STAR team. However, the symptoms were relatively mild to moderate. I accept Dr Clarke’s ‘rough’ apportionment of the incident having contributed to 25% of the plaintiff’s presentation at the time he examined him. Dr Clarke did not see the plaintiff until 17 July 2015, more than six years after the incident. However, there is no reason to think that 25% is not a fair apportionment of the plaintiff’s presentation during the preceding years. 

9. In accordance with Dr Clarke’s assessment, I think that at the time of trial the plaintiff’s prognosis was reasonable. He was no longer in pain due to his dental problems. Further treatment for any residual psychiatric problems stemming from the incident with STAR team, together with the resolution of this claim in the plaintiff’s favour, would result in the plaintiff resuming a less restricted lifestyle. I do not believe that at the time of trial the plaintiff was suffering from any difficulties that would have prevented him from returning to work in the near future. I agree with Dr Clarke that the only real obstacle to the plaintiff returning to work would be his motivation to work.

   Significance of unrelated events

10. In my opinion, the plaintiff’s dental problems following the incident with the STAR team was a new and independent cause of mental health problems for the plaintiff in the form of Major Depression. The arson was a new and independent cause of mental health problem. It must be remembered that the defendant is not liable for psychiatric harm ensuing from the operation of new and independent causes. 

11. The relevant principle was expressed by the High Court in Neall v Watson:[323]

    It does not avail a defendant to show that the victim of his negligence was weak and easily injured. But, on the other hand, a defendant is liable only for the harm his negligence causes, not for harm later ensuing from the operation of a new and independent cause. If a man who is injured is thereby made more vulnerable to injury in the future that will count in assessing damages. But this does not mean that increased vulnerability is to be compensated as if it were an actual wounding. The loss of one eye increases the risk of total blindness but it is not to be compensated as if it had caused the blindness that follows the loss of the other eye by accident later.

    [323] (1960-1961) 34 ALJR 364 at 367.

    HEADS OF DAMAGE: AWARDS

    Pain and suffering

12. In relation to mental injury the plaintiff must prove that he suffered a recognised psychiatric illness as distinct from normal grief, sorrow or distress, which are not compensable.[324] There is no dispute that symptoms suffered by the plaintiff as a result of the incident were the product of psychiatric illness. I award the plaintiff $20,000.00 for past pain and suffering and $5,000.00 for future pain and suffering.

    Past economic loss

    [324] Tame v New South Wales (2002) 211 CLR 317.

13. There is no dispute that the plaintiff was paid award rates, Level 2, under the General Store Workers and Packers and Wholesale Sellers and Distributors Award.[325] The plaintiff ceased work in April 2010. The plaintiff claims lost wages at $634.00 per week for six and one half years (as at the conclusion of the trial). This totals approximately $140,000.00 after tax. This would result in the plaintiff being substantially over-compensated given that his compensable psychiatric illness was a minor contributor to the difficulties which affected his capacity to work. In my view, it is appropriate to award the plaintiff $35,000.00 for loss of income and $3,150.00 for loss of superannuation entitlement calculated at 9 percent.

    Future loss of income

    [325] AN1150057 - General Store Workers and Packers and Wholesale Sellers and Distributors Award as at 27 March 2006 Exhibit P1 at 12-81.

14. As I have said, I do not believe that the plaintiff was suffering from any difficulties that would have prevented him from returning to work in the near future, say 12 months from the date of trial. For the reasons expressed above, an award the equivalent of one year’s wage would over compensate the plaintiff. Accordingly, I award the plaintiff $8,240.00 (rounded off) for future loss of wages and $740.00 (rounded off) for loss of superannuation entitlement.

    Past special damages

15. The plaintiff claims past special damages for consulting and receiving treatment from Ms Hamilton in the amount of $4,570.50 as at 26 June 2015. The defendant does not dispute that such payments were made. The plaintiff will be awarded special damages in this amount.

16. The plaintiff further claims special damages in the amount of $18,720.00 in respect of carer’s assistance provided by the plaintiff’s daughter Ashley Holder and his mother Barbara Holder. It is clear that Griffiths v Kerkemeyer[326] damages compensate for what is a pecuniary loss namely the value of the need for care services. The onus rests on the plaintiff to establish the need for and the value of such services.

    [326] (1977) 139 CLR 161.

17. The evidence given by Barbara Holder and her daughter Ashley was of a very general nature, as earlier discussed. I am not satisfied that the value of the work they performed amounted to $18,720.00. Furthermore, their assistance would have primarily related to the depressive symptoms generated by the problems that he was having with his teeth.

18. I award damages under this head in the amount of $5,000.00

    Future medical expenses

19. The plaintiff claims $10,560.00 for future sessions with Ms Hamilton.

20. Ms Hamilton suggested in her report of 24 August 2014 that the plaintiff ‘would benefit from regular weekly sessions for an extended period of time’ and that the cost of psychological treatment may vary from $150 to $220 per hour. Ms Hamilton did not explain why weekly sessions were warranted when, up until then, the plaintiff had been seeing her on an irregular basis with appointments usually separated by 4-6 weeks.

21. Dr Clarke acknowledged that it would be helpful for the plaintiff to continue to see Ms Hamilton but disagreed with the frequency of appointments recommended by her. In his testimony and report dated 17 July 2015 he expressed the view that the plaintiff would benefit from continuing to see Ms Hamilton on a monthly basis over the next two years or until he believed treatment was no longer necessary or until he experienced significant improvement in his conditions.[327] I accept his opinion.

    [327] Dr M. Clarke TT 664-665; Report of Dr Michael Clarke dated 17 July 2015 (Exhibit P2 - Book of Medical Reports at p.120).

22. I award would the plaintiff damages in the amount of $5,280 for future expenses (monthly sessions at $220.00 for two years).

    Exemplary damages

23. The plaintiff has not made a claim for aggravated damages but seeks exemplary damages. Broadly speaking the distinction between these heads of damage is that aggravated damages are ‘compensatory in nature, being awarded for injury to the plaintiff’s feelings caused by insult, humiliation and the like’.[328] Exemplary damages, on the other hand, indicate the court’s disapproval of the defendant’s conduct.[329] They are awarded in order to punish the defendant for ‘conscious wrongdoing in contumelious disregard of another’s rights’,[330] although ‘[c]onduct may be high handed, outrageous, and show contempt of the rights of others, even if it is not malicious or even conscious wrongdoing’.[331] 

    [328] Lamb v Cotogno (1987) 164 CLR 1 at 8 (The Court).

    [329] White v South Australia (2010) 106 SASR 521 at [450] (Anderson J).

    [330] Whitfield v De Lauret & Co Ltd (1920) 29 CLR 71 at 77 (Knox CJ); Gray v Motor Accident Commission (Gray v MAC) (1998) 196 CLR 1 at [14].

    [331] New South Wales v Riley (2003) 57 NSWLR 496 at [138]; New South Wales v Abed [2014] NSWCA 419 at [233]; see also White v South Australia (2010) 106 SASR 521 at [441]-[443] (Anderson J).

24. In my opinion the plaintiff is entitled to an award of exemplary damages. The assault, battery and wrongful detention of the plaintiff was high handed and showed a contemptuous disregard for the plaintiff’s rights. The assault, battery and false imprisonment of the plaintiff manifested at the very least a reckless misuse of invasive statutory powers.[332] As Mildren J stated in Majindi v The Northern Territory of Australia and Others:[333]

    There needs to be an amount to punish and deter, and to bring home to the officers concerned and to their superiors responsible for overseeing the police force ‘that police officers must be trained and disciplined so that abuses of the kind which happened in the present case do not happen’.[334]

    [332] See Attala v New South Wales [2018] NSWDC 190 at [121]-[126].

    [333] (2012) 260 FLR 459 at [74].

    [334] Quoting from Adams v Kennedy (2000) 49 NSWLR 353 at [65].

25. The plaintiff did not engage in any conduct that would constitute a relevant mitigating factor. An award of $35,000.00 exemplary damages is appropriate. 

    Interest

26. In this case interest is to be awarded on the component of past economic loss (loss of income and superannuation entitlements), past special damages and past pain and suffering.

27. It is necessary to take a broad axe approach. Applying an interest rate of 6% per annum but progressing over the period I award the sum of $13,205.40 as interest.

    Total damages

28. The amount of damages awarded comprises:

    Past pain and suffering   $  20,000.00
    Future pain and suffering   $    5,000.00
    Past loss of income   $  35,000.00
    Past loss of superannuation entitlement               $    3,150.00
    Future loss of income   $    8,240.00
    Future loss of superannuation entitlement            $       740.00
    Past special damages

    -Treatment expenses  $    4,570.50

    -Carer’s assistance  $    5,000.00

    Future treatment expenses  $    5,280.00
    Exemplary damages  $  35,000.00
    Interest  $  13,205.40

    Net damages  $135,185.90

    ORDERS

29. The orders of the Court are therefore:

    1Judgment for the plaintiff in the sum of $135,185.90.

    2I will hear the parties as to costs.