Illert v Northern Adelaide Local Health Network Inc (Modbury Hospital)

Case [2016] SASC 186

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Civil)

ILLERT v NORTHERN ADELAIDE LOCAL HEALTH NETWORK INC (MODBURY HOSPITAL)

[2016] SASC 186

Judgment of The Honourable Justice Hinton

2 December 2016

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

TORTS - TRESPASS - TRESPASS TO THE PERSON - WHAT CONSTITUTES AND DEFENCES THERETO

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES - GENERALLY

Appeal against dismissal of claim for damages for assault and battery.

The appellant issued civil proceedings in the Magistrates Court against the respondent, the corporate entity operating Modbury Hospital, claiming damages for injuries said to have been caused to the appellant during an incident occurring at the hospital. The appellant alleged he sustained injuries in an assault by two members of the hospital’s security staff, leaving him with a residual disability impacting upon his ability to work.

The appellant attended the hospital with his homemade mobility device, which has pedals and four wheels and is powered by a small combustion engine. The appellant was told that he was not permitted to bring the device into the hospital as it posed a real danger due to it being powered by a combustion engine.

The Magistrate dismissed the claim on the basis that although the security officers committed a battery on the appellant, she held that the hospital was entitled to rely on the defence of necessity due to the device posing a serious and imminent danger, and in the alternative, that the appellant was a trespasser in relation to whom the security staff were entitled to take the necessary action to eject. The Magistrate held that the response of the security officers was not disproportionate because of the dangers posed by the presence of the device, and thereafter, because of the aggressive and agitated manner in which the appellant was behaving.

On appeal the appellant challenged the Magistrate’s finding that the force used to restrain him was reasonable and proportionate to any threat of danger that he posed. The appellant also challenged the finding that he was a trespasser and, if he was, that reasonable force was used to eject him. Further, the appellant challenged the adequacy of the Magistrate’s reasons in concluding that the defences of necessity and the ejectment of a trespasser were made out.

Held, dismissing the appeal:

1.       The episode constituted one interconnected series of events. It is unrealistic to conclude that upon the security officers removing the device from the appellant, the conceded risk of imminent peril was at an end.

2.       It was open to the Magistrate to be satisfied that the action taken by the security officers was reasonable to avert imminent danger and that such action was proportionate. It was also open to the Magistrate to conclude that there was no reasonable alternative course of action available to the security officers.

3.       The appellant, knowing…

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Illert v Northern Adelaide Local Health Network Inc (Modbury Hospital) [2016] SASC 186
Case
[2016] SASC 186
Decision Date

CaseChat Overview and Summary

The case of Illert v Northern Adelaide Local Health Network Inc (Modbury Hospital) involved a dispute between the plaintiff, Mr Illert, and the defendant, Northern Adelaide Local Health Network Inc, concerning events that occurred at the hospital's Emergency Department. Mr Illert had brought a mobility device into the hospital, despite warnings from hospital security staff. The security officers attempted to remove the device from Mr Illert, leading to a physical altercation. Mr Illert subsequently filed a lawsuit alleging trespass to the person, among other claims. The case was initially heard in the Magistrates Court of South Australia, where the Magistrate ruled in favor of the defendant. Mr Illert then appealed the decision to the Supreme Court of South Australia.

The primary legal issues in the appeal related to whether the Magistrate had correctly assessed the credibility of the witnesses and whether the security officers' actions were reasonable and proportionate in response to the perceived trespass and imminent danger. Mr Illert argued that the Magistrate had erred in assessing his credibility and reliability compared to the security officers. He further contended that the Magistrate had not adequately considered alternative responses to the situation and had failed to address the proportionality of the security officers' actions.

The Supreme Court of South Australia, in dismissing the appeal, found that the Magistrate's assessment of the witnesses' credibility was not unfair. The Court held that the Magistrate had appropriately deferred to the CCTV footage in evaluating the evidence and had correctly considered the context of the events. The Court also determined that the Magistrate had properly analyzed whether the security officers' actions were reasonable and proportionate in light of the perceived imminent danger and trespass. The Supreme Court concluded that the appeal should be dismissed as the Magistrate's findings were supported by the evidence and the law.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In my view the appeal should be dismissed. My reasons follow.The evidence and the learned Magistrate’s reasons Mr Illert gave evidence at trial. He also called two doctors and a physiotherapist who gave evidence of his injuries and their consequence for his functioning. Neither the evidence of the doctors nor the physiotherapist assists in resolving the complaints made in this Court. Accordingly, I make no further reference to that evidence. The Magistrate summarised Mr Illert’s evidence as follows:[10]On 1 December 2009, he attended the Emergency Department (ED) at the Hospital to obtain a face mask for his nebulizer, used for the treatment of his asthma. When he arrived at the entrance to the ED, he alighted from the Device and wheeled it in through the entrance. As he entered, on the right-hand side there was an office with a sliding glass window where two members of the security staff were stationed. One of the officers started ‘waving his hands around and shouting and yelling’ but because he was behind the plate glass window, he could not hear him.[11]He then came out from the office and was abusive towards Mr Illert and shouted ‘Get that fucking thing out of here’. Mr Illert expressed his concerns that the Device might be stolen and the larger of the two security officers then spoke to him and offered to keep watch over it, if it was parked outside, while he went to the ED. Mr Illert was happy with this arrangement, left the Device outside and went to the ED to collect the face mask. This took approximately 10 to 15 minutes.[12]When he left the ED he was very unhappy at the treatment he had received from the smaller of the two security officers. He decided to make a complaint. He left the Hospital, moved on to Smart Road and travelled another 100 metres or so to the other side of the Hospital, and entered through the Main Entrance, intending to go to the Administration area to make the complaint.[13]He had moved about 20 or 30 metres inside when he heard ‘the thunder of feet’ behind him and saw ‘the little security guard’. Once again he swore at him ‘with abusive and foul language’. He stated to Mr Illert ‘I will fucking tear it apart’ and he pulled the Device away from him. Mr Illert told the Court he let go of the Device and headed towards the door leading to the Administration area. The two security officers came up and tried to grab each of his arms. He could not recall anything being said. He did not want to struggle and fight so he lay down on the ground to show he was not in a combative mood. He did not strike or kick anyone. When he lay down on the ground the two security officers were on either side of him. The smaller security officer was holding his right arm and the larger security officer was holding his left arm. The smaller security officer did a ‘judo hold’ and put his knee on his elbow joint and tried to pull his arm contrary to its natural movement. It was very painful and Mr Illert told the Court he twisted his arm against the security officer’s knee so he could not break the elbow. He succeeded in relieving pressure on the elbow. The smaller security officer kneed him in the stomach at least five times. He was also punching him. He told him to stop but the security officer kept doing it.[14]He saw a number of people walking past and heard a door burst open and some people from management came out. They told the security officers to let him go and they sat him up on the couch.…[16]In cross-examination, he told the Court he understood from security that he was not to bring the Device into the Hospital, however, he considered this was in breach of the Equal Opportunity legislation and not legal. He did not raise this with the security officers. He chose to ignore the directions of the security staff, believe in the Equal Opportunity legislation and bring the Device into the Hospital again. He denied the security officers had told him the Device constituted a danger.[17]He denied he went to a different entrance of the Hospital in the hope he would not meet the security officers again. He told the Court it was not practical to go from the ED to the administration section of the Hospital.

Decision

Reasons for decision

HINTON J
I repeat, if I am wrong in my assessment of the event as not reasonably being amenable to division into two events, and consequently wrong in treating the concession as to a state of imminent danger as colouring all that occurred, then for the reasons I have already given, Mr Illert was a trespasser in relation to whom reasonable force to eject could be used and was used.Conclusion The appeal is dismissed.AppendixArt Gallery South The footage commences at 12.59.24 pm and concludes at 1.02.10 pm. The CCTV camera appears to be set up above the entrance to the Art Gallery, such that you can see most of the room. There is a long couch which lines the right of the frame and a door just beyond the couch. 12.59.24 pm – 12.59.48 pm At 12.59.24 pm, Mr Illert enters the Art Gallery area and can be seen at the bottom of the frame. He appears to be facing slightly right such that he can look behind him. He is walking away from the camera. His device is on his right-hand side and he is holding it with his left hand on the handlebar and his right hand on the seat. Mr Abdulsamed appears on the screen at 12.59.26 pm, just as the device can be seen in its entirety. He is on the opposite side of the device, positioned toward the rear right wheel. At 12.59.26 pm, he appears to be trying to impede Mr Illert’s progress by placing his foot in the path of the rear right wheel of the device. The device appears to run over his foot. Mr Abdulsamed again at 12.59.27 pm attempts to place his foot under the right wheel. As the wheel bypasses his foot, he grabs the blue crate on the back of the device. Mr Illert appears to be looking in Mr Abdulsamed’s direction the entire time and seems intent on continuing into the hospital. As Mr Abdulsamed grabs the crate it becomes dislodged but not separated from the device. This momentarily unbalances Mr Abdulsamed, who appears to have braced himself to pull the device backward upon grabbing the crate. Mr Illert continues walking forward. At 12.59.29 pm, Mr Abdulsamed has grabbed hold of the right hand side of the seat of the device in an attempt to pull it backward. Mr Illert resists by pulling the device toward him with his right hand on the seat and his left hand on the handlebar. At 12.59.30 pm, Mr Abdulsamed still has his right hand on the right hand side of the seat of the device and is attempting to pull it back in the direction from which Mr Illert had come. At 12.59.30 pm, Mr Worrell appears at the bottom of the frame. Mr Illert and Mr Abdulsamed are engaged in what may be described as a tug-of-war over the device. Mr Worrell reaches Mr Illert by 12.59.33 pm. By that time Mr Abdulsamed has managed to wrench the device a step or two back toward the entrance. At 12.59.34 pm, Mr Worrell appears to have both hands on Mr Illert as he is standing behind him. It does not appear that Mr Worrell is holding Mr Illert. A further pull from Mr Abdulsamed sees Mr Illert relinquish his hold on the seat of the device. By 12.59.35 pm, Mr Worrell has his left hand on Mr Illert’s back and Mr Abdulsamed is the only person who has hold of the device. Mr Worrell and Mr Illert are facing toward the camera. Mr Abdulsamed pulls the device away from Mr Illert.

Ratio Decidendi

Legal Principle Established

Established by: HINTON J

He continued:[73] [A] person who enters premises for a purpose alien to the terms of a licence given to him to enter the premises enters as a trespasser. It is a matter of determining the scope of the authority to enter, which the licence or invitation confers. If a person enters for a purpose outside the scope of the authority then he stands in no better position than a person who enters with no authority at all. His entry is unrelated to the authority. [73] (1983) 153 CLR 338 at 346 (Mason J). See also at 357 and 360 (Brennan and Deane JJ). Consideration Above I have made clear that Ms Matthias was not challenged on the conversation she had with Mr Illert. Nor was Ms Lewington who said she was present during the conversation.[92] The very reason for Mr Illert seeking Ms Matthias out must have been because Mr Abdulsamed or Mr Worrell or both had told him that he was not to bring the device into the hospital. [92] T209. The subject of [57] was things said by Mr Abdulsamed. Thus it was not featured on the CCTV footage and comparison with the footage would not assist in determining whether what Mr Abdulsamed said could be accepted as truthful and reliable. It follows then that even if the Magistrate was required to undertake a similar comparison between the CCTV footage and Mr Abdulsamed’s evidence as she did in relation to Mr Illert’s evidence it would not have assisted in determining whether Mr Abdulsamed was credible and reliable when he gave evidence that he told Mr Illert that he could not bring his device into the hospital because of the dangers it posed. After reading the transcript and watching the CCTV footage I do not think the Magistrate’s assessment of Mr Illert’s credibility and reliability unfair. In any event, the Magistrate does defer to the CCTV footage in dealing with the evidence of each of Mr Illert, Mr Abdulsamed and Mr Worrell at [75]-[76]. These conclusions were not challenged, nor were the conclusions recorded at [50]-[52] made after watching the footage. I detect no unfairness in the Magistrate’s approach to the assessment of the credibility and reliability of Mr Illert in comparison to that of Mr Abdulsamed and Mr Worrell. The purported unfairness it was said feeds into the Magistrates’ consideration of whether the response to the imminent danger / trespass was reasonable and proportionate or reasonable respectively. The Magistrate undertakes that very analysis at [71]-[76] and, as indicated, that analysis is driven not by her credibility findings but by her analysis of the content of the CCTV footage. I turn to the fourth argument and the complaint as to adequacy of the Magistrate’s reasons. As indicated this argument is related to the first and second arguments advanced. The foundation for this complaint lies in the assertion that once the device was removed from Mr Illert’s grasp any suggestion of there being a risk of imminent peril evaporated. It was then incumbent upon the Magistrate to explain in her reasons what constituted the imminent peril from that point in time onwards. Further, and allied to this, it was contended that the device having been secured by the security officers, thereafter practical alternatives to the use of force were reasonably available with the consequence that the Magistrate needed to address such alternatives in her reasons and explain why they could be rejected. Further again, there being evidence that Mr Illert intended to complain, it was also necessary to explain in her Honour’s reasons why, the device having been taken from him, the use of force was reasonable and proportionate bearing in mind his intentions. It was submitted that Mr Illert’s aggression once his device was taken from him was an inadequate foundation upon which to find that a situation of imminent peril continued, that the use of force was reasonable to avert the peril eventuating and that such force was proportionate to the apprehended peril.