Knight v State of New South Wales

[2001] NSWSC 1096

Reported Decision: (2002) Aust Torts Reports 81-633

New South Wales

Supreme Court

CITATION:	Knight v State of New South Wales [2001] NSWSC 1096
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	SC 18836 of 1993
HEARING DATE(S):	15 - 19, 22 - 25, 29 - 31 October, 1 - 2 November 2001
JUDGMENT DATE:	30 November 2001
PARTIES :	Austin Owen Knight (Plaintiff) v State of New South Wales (Defendant)
JUDGMENT OF:	Master Malpass

COUNSEL :	Mr A J Bartley SC/Mr F Tuscano (Plaintiff) Mr B K J Donovan QC/Mr P Saidi (Defendant)
SOLICITORS:	Eddelbuttel Law (Plaintiff) I V Knight - Crown Solicitor (Defendant)
CATCHWORDS:	Police pursuit plaintiff suffers injury - care, control, management and training of police - negligence in the continuation of pursuit - vicarious liability in negligence - was the injury caused by assault or fall - plaintiff's memory affected by injury - memory enhanced by hypnosis - admissibility of enhanced memory.
LEGISLATION CITED:	Evidence Act 1995, s 135, s 140, s 140 (2). Law Reform (Vicarious Liability) Act 1983, s 8. Police Service Act 1990, s 170.
CASES CITED:	Prior v State of New South Wales BC 9805599. R v Tillott (1995) 38 NSWLR 1.
DECISION:	See Paragraphs 116 - 126.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

18836 of 1993
Master Malpass

FRIDAY 30 NOVEMBER 2001

Austin Owen Knight v State of New South Wales

: The plaintiff claims damages arising out of personal injury suffered in an incident which took place in the early hours of the morning on 1 January 1990. He alleges that he was assaulted by police. The State of New South Wales is sued as being vicariously liable for the actions of police. At the commencement of the trial, it was the plaintiff’s case that there was negligence in and about the care, control, management and training of two police officers (Senior Constable Parker and Constable Jones).

2 In relation to this contention, it is said that he had been assaulted by Constable Jones after vaulting over a fence (whilst being pursued by police) and that the assault caused injury (including brain damage). It is accepted by Constable Jones, that if there has been an assault (which he has denied), he was the only person who could have committed it. The defendant’s case is that the plaintiff suffered his injuries in a fall after vaulting over the fence. There has been limited ventilation of a third possibility (viz. that he may have suffered injury both in the fall and from an assault).

3 During the second week of the trial, the plaintiff sought to rely on a Second Amended Statement of Claim. This document sought to make three changes to the existing process. Firstly, it was sought to extend the assault case by making allegations against Constable Jones and/or Senior Constable Parker. Secondly, it was sought to add an alternative claim in negligence. The substance of the claim was an allegation that the defendant was negligent through its servants and/or agents continuing pursuit of the plaintiff in circumstances where they knew or ought to have known that the pursuit of him may cause him to fall and suffer injury. Thirdly, it was sought to add a claim for aggravated and exemplary damages.

4 The court was not asked to deal with the application to amend at the time when the amended pleading was placed before it. During submissions, agreement was reached to the dealing with this matter in the course of giving judgment.

5 There has been a lengthy trial. It has extended over a period of nearly three weeks. During that time the focus of the parties was principally directed to the question of whether or not the plaintiff’s injuries were caused by assault or a fall. There have been many witnesses and a formidable body of documentation has been placed in evidence. During submissions, the parties took up a suggestion earlier made and acceded to the question of liability being first determined.

6 It has presented the court with an extremely difficult task (inter alia the issues required the court to make determinations of fact concerning an incident that took place in an unlit area more than 11 years ago). There are only two potential witnesses to the incident itself and one of them is left with memory problems. In addition, there are large areas of conflict in evidence given by various witnesses.

7 There is material from experts dealing with questions of liability and quantum. There are also statements from witnesses and other material generated by police about the time of the incident (including notebook, occurrence pad and charge book entries and facts sheets). There is further police material generated by an internal affairs investigation conducted in or about June 1990. There are also numerous photographs (including recently taken photographs) together with sketches. Certain of these photographs were taken shortly after the incident by the then Constable Paine, who attended the scene with Chief Inspector Martin and Constable Jones, as part of what seems to have been an informal police inquiry or investigation. In addition to this material two videos were shown and tendered. I shall return to them in due course.

8 On behalf of the plaintiff, oral evidence has been given by the plaintiff himself, Mr Doherty, Mr Bullock and the plaintiff’s father. Experts have given supplementary oral evidence and were cross-examined (including Professor Clement, Dr Davis and Professor Cordner).

9 On behalf of the defendant, Mr McLaren and Mrs Smith (two ambulance officers who attended the scene of the incident and took the plaintiff to hospital) gave oral evidence. Both Mr Jones (formerly Constable Jones) and Senior Constable Parker gave evidence on behalf of the defendant. Experts have given supplementary oral evidence and were cross-examined (Dr Barnier, Dr Lucire, Professor Hilton, and Dr Cala).

10 An arrangement was reached between the parties concerning Dr Bookallil (the treating neurologist at Royal Newcastle Hospital). He was not called, but there was a tender of written material (part of Exhibit 10).

11 In this case, the credibility and reliability of witnesses has been a matter of crucial importance. I have closely observed each witness during the giving of testimony. In assessing the matters of credibility and reliability, I have had regard both to demeanour and evidence.

12 At an early stage during the giving of the plaintiff’s evidence in chief, argument took place concerning the admissibility of evidence that was proposed to be adduced from him and of the need for a voir dire. On 3 June 1991, the plaintiff had been the subject of an hypnosis session. The session took place at Manly and was performed by Mr Bullock. The plaintiff suffered memory problems as a result of the injuries sustained following his vaulting over the fence. It is his case that memory has been enhanced by the hypnosis. The defendant opposed the admission of this evidence and sought a voir dire. In doing so, it relied on the line of authority that had been applied in criminal cases (including R v Tillott (1995) 38 NSWLR 1). For reasons of expediency, the course was taken of receiving the evidence and reviewing the position in the judgment.

13 There was also another evidentiary concern which arose out of the investigation had in or about June 1990. Both parties had intended to tender material used in the investigation. The potential operation of the provisions of s 170 of the Police Service Act 1990 had come to the attention of the parties. In the course of the hearing, the concern of the parties was resolved and material from the investigation was tendered.

14 Towards the end of 1989, the plaintiff had been dealt with (together with at least one other person) concerning offences related to the possession and use of marihuana. The plaintiff presented as being unhappy with the treatment he had received from police. As at 1 January 1990 he may have been the subject of a Community Service Order. The matter is mentioned at this stage because it may assist in explaining what led the plaintiff to persist with fleeing from the police. It was a matter that was alluded to in his evidence.

15 On New Year’s Eve 1989, the plaintiff went to the Taree RSL Club. He was there with two former classmates (Simon Hogan and Peter Doherty). Sometime after midnight, they went looking for something to eat. They went to two service stations. They obtained food from the second of the two service stations (a BP Service Station). According to the plaintiff, they then went to a nightclub (the Poplars). According to Mr Doherty they went to the “Poplars Lounge” at the back of the Exchange Hotel. During the time spent together, alcohol was consumed. According to the plaintiff’s oral evidence, the other two consumed more than he had. According to Mr Doherty’s oral evidence, all three of them were moderately to well affected by alcohol.

16 After leaving the Poplars, they proceeded towards the Martin Bridge (which is a bridge crossing the Manning River at Taree). The bridge basically stands in a north/south position. At its northern end, it is near the main street of Taree (Victoria Street). Both the bridge and Victoria Street form part of the old Pacific Highway.

17 The approach to the bridge was on their way home. According to the plaintiff, when they reached the bridge, the other two decided to engage in what has been described as “browneying cars” or “mooning” (his evidence is supported by what was said by the other two). This involved them dropping their pants and exposing their bare buttocks to passing motorists. Firstly, this was done near traffic lights. Later, they moved on to the bridge. These activities excited the ire of the driver of a panel van (he got out of his vehicle and chased them). The panel van has been described as being blue (Constable Jones). It has also been described as being white (Senior Constable Parker). The attention of the two police officers (who were on highway patrol in a police vehicle) had already been attracted. According to Senior Constable Parker, the police in effect anticipated what the young men intended to do and decided to lie in wait so as to catch them red-handed (they sat watching in the vehicle with the lights off). There are differences in the versions given by both officers as to what happened prior to pursuit. Two of the three were seen by Constable Jones engaging in this activity in respect of two vehicles (Senior Constable Parker saw it in respect of only one and in one of the versions given in his oral evidence he said “I still don’t know whether it was the whole three or just two of them”). The three young men decamped from the scene. They went down some steps and then dispersed in different directions. The police pursued them (the vehicle had its flashing lights on) with the intention of making an arrest. They first pursued Doherty in their vehicle. He suffered minor injuries towards the end of the pursuit of him when sliding down an embankment. He was apprehended in or about River Street. It was said that he was then arrested. He was told to get into the back of the vehicle. It seems that he was left to sit there unrestrained. He says that the vehicle was driven so close to him that he was forced to take a few steps back. According to Senior Constable Parker, the van driver was present at the time of this arrest but it seems that the police did not get his name or address. His presence was not mentioned by Constable Jones. If the driver was in fact present at the scene of that arrest, the police appear to have ignored him. After the arrest of Doherty, police then continued the pursuit.

18 At this stage, I should mention some matters relevant to the continuation of the pursuit by the police (the words “search” or “patrolling” have been used by the police in describing what was done). The conduct on the bridge was regarded by the officers as involving minor offences of a trivial nature. Constable Jones expressed the view that it would not normally lead to charges. Senior Constable Parker seemed to take a different view (although all they were doing was skylarking, they had to be arrested because it was an offence). They were then in the position to obtain information as to the identity of the other two from Mr Doherty. The police version is that they did not make inquiry of him at that time and no explanation is offered for the failure to do so. According to Mr Doherty, they asked him questions during the pursuit. He said that after the police spotted the plaintiff they “asked me if Austin was with us”. He then said that he informed them that he was and that he was not involved in the “browneyeing”. According to Constable Jones, when they were pursuing the plaintiff they did not know which one of the three had not exposed himself and they did not know that he was one of the three until later. I accept what was said by Mr Doherty on these matters.

19 It was a quiet night for the police. According to Senior Constable Parker, they were very keen to arrest all of the offenders (even though the others could have been dealt with by way of Summons). He said that Constable Jones called for assistance and that there may have been two other police vehicles involved in the pursuit (about 75% of the police force in Taree). In contrast to this evidence, Constable Jones presented a picture which saw a lack of urgency and any need for assistance. It is not contended by the police that at any stage they called upon the plaintiff to stop.

20 The plaintiff’s version is that he proceeded back towards the town and then along Victoria Street. Initially, he hid behind a service station. Then he proceeded back along Victoria Street into the town. He was seen by the police through Fotheringham Park (which is located between Victoria Street and River Street). He saw the police vehicle coming towards him. He retreated to where a discount furniture store had then been located (it is now Video Ezy). He proceeded running down an area forming part of its premises (the store area) with the police in pursuit.

21 The store area comprised a front area (which allowed for some off-street parking), a covered underpass and a rear area (which seems to be inter alia an area where vehicles could be parked and there was a driveway). There are many photographs of the areas in and about which the incident took place. There was egress to what has been referred to as the slip road from the rear area. There was a fence (which has been said to be about 41 metres in length) which divided the store area from certain houses. There was a white house (the Yarad house). There was also a brown house which stands on the southern side of the Yarad house. It accommodated inter alia a medical practice. There was a double garage near the Yarad house. A vehicle could drive from the store area around the fence line (where there was a garden area which “actually protruded out and around”) into and via the slip road (which is an extension of River Street) and back up a driveway to the rear of the Yarad house (Exhibit 1). It was a concrete driveway with a garden edge and trees near the fence. From it, there were apparently at least two avenues of escape (one into adjacent Fotheringham Park).

22 The plaintiff said that he was familiar with the area (including the fence, the store area and the driveway). Senior Constable Parker had some familiarity with the area. Constable Jones had not been in the driveway prior to the incident. Indeed, he said that he had not known that it was there. He has described the area at the time of the incident as being pitch black (similar evidence was given by Senior Constable Parker). Mr McLaren also described it as being extremely dark. However, in relation to the store area, Constable Jones said that the police lights lit up the area in some detail.

23 Evidence given as to the pursuit (from the three occupants of the vehicle) has produced amazing contradiction and discrepancy. It is unnecessary to dwell on detail. It suffices to make just a few observations. Each gave a different version of the route taken by the police vehicle in its approach to the store area. Indeed, the police disagreed as to the point of entry into the store area (one had it entering via the slip road, the other had it entering via Victoria Street). I accept the version given by Mr Doherty. He has the plaintiff being seen by the police through Fotheringham Park whilst he was walking in Victoria Street, then being pursued into the store area via Victoria Street and being pursued in that area by the two police officers (one in the police vehicle and one on foot). It may be noted that his version has consistency with what has been said by the plaintiff. There are startling differences between the two police officers as to what happened in and about the store area (including what was said to be the activities of the plaintiff and of Constable Jones). I shall return to certain of these matters in due course.

24 The evidence is that the plaintiff was running in the rear area with the police in pursuit and that he vaulted over the fence. It seems to be common ground that generally speaking the drop on the other side of the fence diminished in the approach to the river end (the southern end). The driveway slopes downwards in a generally south to north direction. At the southern end it was about 3 feet high on the store area side with a drop of about 6 – 7 feet to the driveway. The plaintiff has been said to have vaulted to the right using both hands. The effect of the plaintiff’s version is that he landed on the other side on his feet and that he then ran diagonally down the driveway towards the Yarad house.

25 There are divergent views as to the position where the plaintiff vaulted over the fence and as to the height of the drop on the other side of the fence. The plaintiff’s version is that it was close to the river end (because it was the short end) and that the drop was about 7 feet. On one view the drop was about 8 – 10 feet in the area where the plaintiff’s body lay on the driveway. There are other views of 2.75 metres, over 3 metres and 12 feet. Mr Doherty has marked various photographs (Exhibits C2, E2 and K2). He identified a spot being north of that identified by the plaintiff. His evidence is to the effect that the position of the plaintiff’s body was adjacent to where he vaulted over the fence. However, his observation was restricted to what could be seen from the back seat of the police vehicle. There are also divergent views amongst witnesses as to the position of the body when it was seen by them (including amongst the ambulance officers).

26 A curious feature of this case is the lack of evidence as to relevant other distances. The absence of this evidence seems surprising in view of the police investigation that took place (there is evidence of Constable Paine measuring distances). Counsel for the defendant, during submissions expressed the view that Constable Jones may have had to cover a distance in the order of 30 - 40 metres when proceeding from the area where the plaintiff vaulted over the fence to the area where his body was seen on the driveway. This may be little more than speculation. The evidence (or lack of it) does not enable the court to form any view as to the length of the distance involved in Jones reaching the plaintiff.

27 Senior Constable Parker has said that Jones ran along the line of the fence (and through the garden area). He acted with urgency. Constable Jones has also said inter alia that he ran. However, in oral evidence Jones also said that it was more of a jog. I prefer the evidence that he ran. In Exhibit 1, Mr Doherty said, “The vehicle was not being driven very fast possibly at a fast jogging pace”.

28 I now return to the plaintiff’s oral evidence concerning the closing stages of the pursuit. The plaintiff gave inter alia the following evidence:-

“Q. Would you please tell the Master what it was that you could recall of the events from when you went to jump the fence, what you recall of those events before you saw Mr Bullock?
A. Before I saw Mr Bullock what I could recall was running, jumping or vaulting the fence, landing in a garden and then making my way running down a driveway and then bright lights and then an impact to my face region and that’s all I remember.”

29 At a later stage during his evidence in chief, he said that he had seen Mr Bullock for treatment for his traumatic state of mind (this is at odds with what was said by Mr Bullock). He gave evidence to the effect that the visit to Mr Bullock had enabled him to recall more detail of what followed after he vaulted over the fence. He gave the following further evidence:-

“Q. Carefully and slowly, would you tell the master what it is that you were then able to remember?
A. What I was able to at least try and face up to and remember, was that why I stopped, and that was--
Q. If you saw, heard or felt something, say what it was that you saw, heard or felt?
A. Well I heard someone say, ‘Stop, stop, stop.’
Q. What were you doing when you heard someone say ‘Stop’?
A. Well, I was running down a driveway at that time.
Q. When you heard someone say ‘Stop’, did you stop?
A. No, I just…
Q. What happened then?
A. ‘Stop or I’ll shoot.’ Then I stopped and froze.
Q. What happened then?
A. Then somebody just come quickly running down the driveway, lights were still flickering over me, and said, ‘Well matey, wrong place wrong time. You have been in a bit of trouble’, and then bang, impact. It happened very quick, I must add.
Q. As you sit in the witness box tonight, do you say you are able to remember those matters that you have described?
A. Yes.
Q. Do you remember anything after that until you were in hospital?
A. No, I don’t.”

30 A video was made of the hypnosis session. It was shown during the hearing and put into evidence. A transcript of the session has been made and it was also put into evidence together with a copy letter from Mr Bullock to Mr Murphy (of the firm then acting for the plaintiff). Broadly speaking, the session can be divided into three segments. Firstly, there is an introductory segment during which the plaintiff was questioned concerning his pre-hypnosis memory. Secondly, there is a segment which reproduces what happened during the period that the plaintiff was said to be under hypnosis. Thirdly, there is a segment which sees some questioning of the plaintiff concerning memory had post-hypnosis.

31 It is unnecessary to reproduce any of this material. However, it should be observed that there were differences between oral evidence given by the plaintiff as to his pre-hypnosis memory and what appears on the video in respect of such memory. Also, it should be observed that the ringing of a telephone during this part of the session may have brought about a situation where the plaintiff did not have the opportunity to fully exhaust his pre-hypnosis memory.

32 A video was also made depicting urban areas of Taree. It showed inter alia the bridge and a route from it to the fence (including River Street and the slip road). This short video was made on 18 October 1999 with the involvement of Senior Constable Parker.

33 The closing stages of the pursuit were carried out with Constable Jones on foot (who from some stage in the rear area had a torch in his hand) and Senior Constable Parker driving the vehicle. Constable Jones had alighted from the vehicle in the store area. The question of when it was in the sequence of events that this took place throws up some curious police evidence (which reveals conflict between the two officers and changing of position by Senior Constable Parker). I shall now refer to some of it.

34 Constable Jones said that he had been pursuing the plaintiff on foot prior to the vaulting over the fence. Senior Constable Parker has given conflicting versions of what happened. The first version given was that Constable Jones alighted after the plaintiff had vaulted over the fence. This version has Parker driving near the fence where Constable Jones reaching for a torch then alighted from the vehicle to give chase, then went to the fence and then shone the light over to show where he was jumping. This version appeared in the statement made on 7 June 1990 for the Swift investigation. A different version (which was similar to that given by Constable Jones) emerged by way of answer under questioning from Detective Inspector Swift (in oral evidence he said that Swift had tried to correct him “because on the occurrence pad Jones stated something else”). This answer was given shortly after the making of the statement and after being asked whether what had been said in the statement was correct. The correcting answer that was given was expressed to be based both on his recollection and after looking at the occurrence pad. The two versions in fact appear in the one document. Both officers had been given a directive memorandum together with a copy of the occurrence pad entry. The documents may be found in Exhibit T. The first version entertained by Senior Constable Parker was embraced once again in a statement made on 10 February 2000 (Exhibit AA) and (as his memory or recollection) in his unimpressive oral evidence on this matter (where it appeared to be maintained as at least his preferred view). At another stage in his oral evidence, he ventilated a further version which has Jones alighting without the torch and then coming back and grabbing the torch, running to the near vicinity of where the plaintiff jumped and then turning to him and saying “Quick call an ambulance”. In another answer he added that Jones then came back to the vehicle and shut the door. The Jones version has him alighting with his torch and giving chase before the plaintiff had vaulted the fence.

35 Mr Doherty also had a version of this event. He saw Constable Jones chasing the plaintiff before he vaulted over the fence.

36 After the plaintiff had vaulted over the fence, the police moved from the store area to the driveway. A more direct route was open to Constable Jones on foot than that available to a vehicle (see Transcript p399). He ran through the garden area.

37 Constable Jones moved ahead to go around the fence line and into the driveway. According to Senior Constable Parker, this was the first time that he had run. He was followed by the vehicle. The vehicle entered the driveway some time after Constable Jones. It was brought to a stop in the driveway with its headlights illuminating the plaintiff. According to Senior Constable Parker, it entered the driveway just as Constable Jones reached the plaintiff (he could see the back of Jones). According to one of his versions he said that he pulled the car up, alighted from it and went straight to the plaintiff. The car was 5 – 6 metres away.

38 There are competing police versions as to whether or not Constable Jones remained at all times within the sight of Senior Constable Parker as he proceeded from the store area to the position where the plaintiff was seen lying in the driveway. This was a matter which might be seen as an invention presented by the police for the purpose of exculpating Constable Jones from the allegation of assault. In oral evidence, Senior Constable Parker was adamant that Constable Jones was never out of his sight (inter alia he could either see the back of Constable Jones or his head above the fence in the torch light when they were on different sides of the fence). Whereas, in Exhibit AA, he said “I estimate that only a couple of seconds transpired between the time Constable Jones went out of my sight and when I arrived on the driveway”. The earlier statement contained in Exhibit T reads, “I then did so as Constable Jones then went to the front of the house that the offender jumped into and I followed not losing sight of him whilst I was organising an ambulance”. Constable Jones in oral evidence conceded that he was alone with the plaintiff for a time. This was contrary to an answer given by him to a question put by Detective Inspector Swift (question 15). In oral evidence this answer was said by him to be not true.

39 According to the Doherty version, as the vehicle came to a stop (about 5 – 10 metres from the plaintiff with its headlights on him), the plaintiff was seen lying prone on the driveway (with his head facing towards the police vehicle) and Constable Jones was seen walking towards the police vehicle. The plaintiff’s face was not visible (see Transcript p66/67). Jones then told Parker that the plaintiff was injured and that they would need help. In Exhibit O (which is a statement made by Mr Doherty) the words “He has fallen and hit his head mate, we’ll need help” appear. In that statement, Doherty said also that the police officer (who was the driver) then radioed for an ambulance and help from other police officers. In oral evidence he said that nothing was mentioned about the head. In the statement he further said that the other officer walked back to the police car with the plaintiff’s wallet and his torch (which he then placed back in its holder).

40 In oral evidence, Constable Jones said that he didn’t touch the plaintiff whatsoever (and Senior Constable Parker said that neither of them touched the plaintiff). He later accepted that he must have taken his wallet. In his evidence in chief, he said he had a memory of saying something to Senior Constable Parker, putting his torch back into the vehicle and Parker getting out of it and walking down to the plaintiff.

41 At this time, the plaintiff was unconscious. His body was at an angle to the fence. His head was on the concrete driveway. Senior Constable Parker said that he was lying face down on the driveway in a “contorted state, twisted”. He indicated a bit of a circular position and that no part of his face was visible. Constable Jones said that he saw him lying face down with inter alia an arm twisted in an awkward position behind his back. His feet were near the fence. There was a pool of blood near his head. Mr McLaren examined the plaintiff. Injuries to the face only were noted. Ambulance material has the plaintiff prone. Mr McLaren said, “which is laying on his face in a slightly downhill position” with “blood coming from his mouth and also his right ear”. There are photographs which have been marked to depict various versions of his position.

42 In the statement which is Exhibit 1, Mr Doherty says that he heard Constable Jones saying that he appeared to have broken his arm. In oral evidence, he said that he then looked and noticed that it was at a funny angle. It appears that no injury whatsoever was suffered to the right arm. However, in cross-examination, Constable Jones agreed that he thought a broken arm was a possibility and that it featured strongly in his mind. The matter of the awkward position of the arm was left largely unexplored and remained somewhat of a mystery to the end. However, in the circumstances of this case, it might be thought that an uninjured arm in such an awkward position lacked consistency with a fall (including a fall on to his head without injury to other parts of his body). A possibility is that the arm may have been used to bring his body to the position in which it was seen later by others.

43 The police called the ambulance. There is contention as to when the ambulance was called and as to how long it took for it to arrive. I shall return to the first of these matters in due course. The two ambulance persons attended the scene. Mr McLaren was the senior officer and Mrs Smith was the “gopher”. Ambulance records disclose that this was about six minutes after being called. Senior Constable Parker said that it took a long time for the ambulance to arrive. At times he has given an estimate of 15 minutes. Constable Jones recorded that the ambulance attended shortly after being called. In oral evidence he gave an estimate of 5 minutes.

44 At least two other police officers came to the scene (Constables Ayoub and Burns). Senior Constable Parker said there were four other police at the scene after the incident. There was some discussion between Constable Jones and Mr Doherty concerning the identity of the plaintiff. Hogan arrived at the scene and was also placed in the police vehicle. The plaintiff was driven to hospital in the ambulance. The other two were taken to the police station and charged. Certain police documentation came into existence.

45 Constable Jones was not seen to have any blood on him. Doherty thought that he seemed a bit agitated and that it was pretty obvious something serious had happened and that Jones had realised there were going to be repercussions. In Exhibit 1 (which is a statement made by Mr Doherty for the purposes of the investigation), he said inter alia that he had no cause to believe that the injuries occurred other than because of the fall. In oral evidence, Constable Jones said that he was unaware that the plaintiff was alleging brain damage until after commencement of the trial. What was said to pass between Jones and the plaintiff in the driveway was not heard by Doherty, but he was in the vehicle and some distance away.

46 A torch of the type in use at the time is in evidence. Unfortunately it was obtained after most of the experts had given their evidence. The torch was shown to Dr Cala. He gave this evidence:-

“Q. Would that be the type of weapon which, if used to strike the left temporoparietal area, may cause the brain damage that we have seen?
A. I don't know. It might. But I could not be sure about that.”


I have inspected and handled the torch.

47 For completeness, I should mention another matter. According to police, shortly after the incident (it may have been the following day or thereabouts) there was an approach by a security officer (Mr Wright), whilst they were on patrol, who gave information to the effect that the plaintiff had also been “browneying” or “mooning”. This led to action later being taken against the plaintiff (an Information was laid) which did not ultimately proceed. A Breach Report dated 12 January 1990 is in evidence.

48 The plaintiff was subjected to a very lengthy cross-examination. During that cross-examination, various versions given by him of the incident were the subject of questioning. Apart from what was said in his evidence in chief and during the hypnosis session, he made a statement in February 1993, which was accompanied by a list of questions (this material seems to have been prepared at the instance of Dr Sandfield who was then giving the plaintiff psychiatric treatment). There was an affidavit which had been sworn for earlier use in the proceedings. There are histories given to various doctors (including Dr Kendall) and other comment made during the many years since the incident. A general attack is made on his reliability.

49 An evaluation of what has been said by the plaintiff involves the court in grappling also with other issues. These concern the memory problems arising from his head injury. These problems involve additional considerations (including those of reconstruction and the reliability of memory enhanced by hypnosis). I shall return to these matters in due course.

50 Constable Jones has denied the allegations of assault and the evidence given by the plaintiff concerning it (including the hypnosis enhanced memory). He is a very tall man. The evidence is that he is of a height in the order of six feet five inches. He was right handed, but said that he carried the torch in his left hand. He undertook the task of preparing the police documentation (including the occurrence pad entry) that came into being at the end of the shift on New Year’s Day. He said that the occurrence pad was only prepared by him. Senior Constable Parker maintained that he had some input into the documentation. He saw the occurrence pad after it had been completed. He made no entry in his notebook.

51 The documentation that records the various versions given by Constable Jones throws up conflicting material. His oral evidence was in conflict with certain of the material appearing in the documentation. I have not sought to deal exhaustively with these matters. Some have been already mentioned. Others will be referred to in due course. He left me with the impression that he had selectively embellished his recollection with the passage of time so as to best present his position.

52 His evidence sees the police vehicle performing a seemingly unnecessary manoeuvre of leaving the area and performing an illegal U turn in Victoria Street (which may have seen the vehicle being driven on the median strip) so as to return to the area (this evidence was rejected by Senior Constable Parker). He said that the turn was done in the front area. This U turn has relevance to what was said to be a second sighting of the plaintiff by Jones in the store area. He has offered competing versions of whether or not the plaintiff was seen before or after the effecting of the said U turn.

53 There was police evidence (including evidence from Constable Jones) of another matter (when the ambulance was called) which might be seen as invention presented for the purpose of exculpating Constable Jones from the allegation of assault. Constable Jones has said that after the plaintiff had vaulted over the fence, he looked over it using his torch, and observed the plaintiff lying at a 45 degree angle on the driveway on the other side of the fence. The plaintiff’s feet were said to be in the edge of the garden bed and his head was towards the garage. It appeared that one of his arms was awkwardly bent. Constable Jones has said that he then told Senior Constable Parker to call an ambulance. This evidence was supported by what was said by Senior Constable Parker (who said that he then made the first of a number of calls to the police station for an ambulance). It was on these matters that both officers were unequivocal and insistent in their oral evidence. However, it is inconsistent with what appears in the Breach Report prepared by Constable Jones on 12 January 1990 and the earlier occurrence pad entry (1 January 1990). In these documents, the calling of the ambulance forms part of a sequence of events that took place in the driveway. The matter of the calling of the ambulance in the store area first appears in documentation that came into being in June 1990 during the investigation and after police were aware of allegations of assault. Although Mr Doherty had a gap in memory at the time that Jones alighted from the vehicle, his evidence is not consistent with what the police say on the matter of the calling of the ambulance. His oral evidence and statements (including what is recorded in the notebook) describe a sequence of events where Parker is told by Jones of injury to the plaintiff, of the need for help and the ambulance is then called after the police vehicle had stopped in the driveway. It is consistent with Jones first telling Parker of injury and of the need for help after walking back down the driveway. It is consistent with Parker then making the first (and seemingly only) call to the ambulance. I accept the evidence of Mr Doherty. I do not accept the police evidence on these matters.

54 Constable Jones presented as an intelligent and experienced witness. However, I do not accept him as either credible or reliable. Except where there is either independent corroboration or matters are not in dispute, largely I do not accept his version of the pursuit, the incident and other matters.

55 Also, I do not accept Senior Constable Parker as a credible or reliable witness. Except where there is either independent corroboration or matters are not in dispute, largely I do not accept his version of the pursuit, the incident and other matters. Senior Constable Parker gave the impression of being very uncomfortable in the witness box and of being committed to certain evidence which if accepted would exculpate Constable Jones. Senior Constable Parker did not largely present as one having a clear recollection of the events of the incident. Certain of his evidence had a flexible quality. His oral evidence and documentation throws up contradiction and discrepancy. Aspects of it seemed to be extraordinary and/or implausible. Again, because of the daunting mass of evidence, I have not sought to be exhaustive on these matters.

56 I should also refer to some curious evidence given by him on other matters. This evidence first emerged following examination on the subject of whether there had been any conversation between him and Doherty. After answering “No”, he gave this evidence in chief:-

“Q. Do you remember him asking any questions or saying anything about Mr Knight or --
A. I can't recall whether he asked how he was or anything, but because I parked the car so that he would have clear observation of Mr Knight - that was my whole purpose when I stopped the car - so that Mr Doherty had full observation of what we were doing with Mr Knight.

Q. Why did you do that?
A. I wasn't trying to cover up anything we had done wrong, I certainly wanted him to keep in contact with what we were doing with him so he could see we were assisting him not hampering him.”

57 He gave this further evidence in cross-examination:-

“Q. That is not true, is it, that Mr Jones was never out of your sight whilst he was in the driveway?
A. Sorry, can you repeat that?

Q. It is not true, is it, that Mr Jones was never out of your sight whilst he and Mr Knight were in the driveway?
A. I, from my memory, don't recall him being out of my sight, no.

Q. So may he have been?
A. No.

Q. No?
A. He wasn't because I made sure, like I tried to get there as quickly as I could and I kept constant observation of him.

Q. Why would you want to keep him under constant observation?
A. Well obviously he wasn't my concern but I certainly didn't lose any observation of him.

Q. Why would you want to keep him under constant observation?
A. Well I had no need to. I had no concern for that, but I never lost observation of him.

Q. Why would you want to park the vehicle in such a way that Mr Doherty would have a clear view of what you and Mr Jones were doing?
A. Because I didn't want any allegations made.

Q. So that was in your mind when you parked the car for the very first time, that there might be allegations made?
A. Yes.

Q. Is that right?
A. Yes.
………………

Q. Why were you so keen to keep him in your sight?
A. I had no reason to keep him in my sight.

Q. Why were you looking over your left shoulder, it must have been dangerous looking over your left shoulder?
A. No.

Q. Why were you wanting to keep him in your sight?
A. I don't know, I just didn't lose him. I had no reason to keep full observation of him. I just had it there.

Q. Wasn't for the same reason you made sure that Doherty could see what was going on down the driveway?
A. Probably was.”

58 Mr Doherty does not seem to have been a close friend of the plaintiff at the time of the incident. The evidence conveyed the impression that there had been little association between them since the incident. He gave his evidence in a neutral manner. The plaintiff has presented him as the only independent witness. In my view he can be regarded as being an independent witness. Allowing for eleven years to affect memory, the defendant accepts his evidence as truthful and accurate. He has given four written versions. Three of them are statements. Exhibit O is the one prepared by himself and this was done on 13 April 1990. Whilst there may be some minor discrepancy seen in his statements and oral evidence, largely there was consistency. The accuracy of his evidence finds support in other evidence. He presented as a credible and reliable witness. Largely, I accept his evidence.

59 The court also has independent ambulance documentation. Likewise, the reliability of this material is not in issue. There is some conflict in the evidence given by the two ambulance officers. It seems that their independent recollection may have faded with the passage of time.

60 At an early stage, the plaintiff’s father had concern about the police version of a fall of 10 feet (a version which was communicated to the ambulance officers and the hospitals) as the cause of his son’s injuries. He noticed the absence of injury to the rest of the plaintiff’s body. There is evidence of statements said to have been made by the plaintiff either to him or other members of the family. He made inquiries of doctors. He made an inspection of the scene on 15 January 1990. He saw an area from which blood had been cleaned. He saw a broken branch or twig, a footmark in the garden area and scuff marks on the verge. This was closer to where the plaintiff has said he vaulted over the fence.

61 On 15 January 1990, he made a complaint. It brought about an investigation by Inspector Martin. This investigation does not seem to have generated any documentation from either of the two officers involved in the incident. On 1 March 1990, he was interviewed by Detective Inspector Swift and subsequently, in or about June 1990, the Swift investigation took place.

62 He spent a long time in the witness box and was cross-examined at length. His credibility and reliability was the subject of strong attack. I need not dwell on these matters, as this case can be decided without dealing with them.

63 Exhibit T contains inter alia an ambulance document. It has an entry which would appear to have a police source and may be read inter alia as saying in effect that the plaintiff was hit by a constable. This is how the plaintiff seeks to read the document. Not surprisingly, the defendant presents a different reading of it. Senior Constable Parker made the call that led to the summoning of the ambulance. This was done by calling the Police Station. Someone at the station then contacted the ambulance (this may have been Constable Rigby). Senior Constable Parker has denied that he was responsible for the making of any comment to that effect and Constable Jones denies the allegations of assault. Senior Constable Parker maintained that he did not see Constable Jones touch the plaintiff.

64 Following the incident, the plaintiff was first taken to the Manning River District Hospital. He was then transferred to Royal Newcastle Hospital. He was discharged on 25 January 1990. He later went to the Rehabilitation Centre at Coorabel. He was discharged in early March.

65 The plaintiff has no recollection of being in the Manning River District Hospital. He was unconscious for three or four days. His first post-incident recollection was at Royal Newcastle Hospital. He underwent a CT scan. Later, in 1995, he underwent an MRI scan.

66 I shall briefly refer to some of the plaintiff’s personal background. It is not intended to be exhaustive as the court is presently dealing with the question of liability only.

67 The plaintiff was born on 31 October 1970. He completed primary and high school. He obtained his HSC, but it was not a good result. He had completed his schooling by 1989. It was said that in 1990 he was about 5 feet 10 inches in height.

68 He has had a very limited pre-incident work history. There is evidence of unsuccessful attempts to obtain employment. He did some work in his father’s business (an Endrust franchise) and for the person who later conducted that franchise. There is little evidence as to remuneration received for these efforts (it may have been pocket money or little more). He said that he enrolled in two Tafe courses. One was said to be in accountancy, the other was said to be in real estate. The accountancy course was for three to four years and he had hoped to become a cadet accountant.

69 He said that he had done well in school bearing in mind the effort that he had put in to his studies (the actual result was in fact poor). He had tended to concentrate on his sporting interests (inter alia cricket and hockey).

70 During the period 1995/1997, the plaintiff was involved in 3 assaults. He suffered injury in each of them. In respect of each application, he brought a claim in the Victims Compensation Tribunal. He recovered an award in two of them. In relation to each of them, he said that whatever he had done had not been intended to provoke any assault. The defendant says that he did not disclose the 1990 incident in any of the applications.

71 I now turn to the question of the injuries sustained by the plaintiff in the incident. It is a question which is afflicted with some uncertainty.

72 There is evidence of multiple (bilateral) intra cerebral haematomata and bruising in the left temporo-parietal region. His closed head injury has been described as a blunt injury to the skull and severe. The defendant accepts that there is little doubt about the haematomata. It is evidenced by the CT scan and the later MRI. The bruising is mentioned in the documentation sent by Manning River District Hospital to Royal Newcastle hospital.

73 He suffered facial injury (inter alia several fractured teeth, laceration to the lower lip, laceration to chin and injury to the left zygoma). There has been mention of a “huge black eye”. This may be consistent with the zygoma injury.

74 An entry in hospital notes relating to injury to the spinous process is recorded to have been “seen by Dr Mitchell”. It has not shown up elsewhere in the documentation. The plaintiff does not claim this to be an injury arising from the incident. However, it has aroused discussion from the experts. There is also possible fracture involving facial sinuses.

75 A significant part of the injuries were to the left side of his head. There was bleeding from the mouth and the right ear. There was no injury to the right ear itself. This has led to a possible fracture to the base of the skull being advanced as an explanation for the bleeding. There were no injuries to hands, arms, chest, abdomen or back (in particular there was no injury to his right arm).

76 It has been said that his continuous memory was absent during his stay at the hospital. There was a post-traumatic amnesic period of some 16 – 18 days.

77 According to the plaintiff’s evidence he has experienced speech and writing problems. He had a tremor which made it difficult for him to use a keyboard. He has had co-ordination problems. He has had balance and gait problems. He avoids stairs and ladders. Whilst there has been improvement, he has not returned to his pre-incident condition. It is said that there have been personality changes. He has a lack of trust in people. He has had outbursts of temper and violence (throwing things and damaging objects). There is expert evidence of a severe obsessive compulsive neurosis and of a severe personality disturbance. There is evidence of a high level memory deficit having been completely resolved. However, there remains a marked slowing in the rate of information processing and a reduced attention span. There is evidence that basic intellectual functions and adaptive cognitive skills were unimpaired. There is evidence that his intellectual efficiency has been reduced to a mild degree.

78 Post-incident, apart from a short period, when CES placed him in a service station, he has not had any paid employment. He has been looking for work since about 1995 – 1996. He has not found any employment. He has attempted a number of Tafe courses. These have not been completed.

79 The plaintiff is not married. He does not have a girl friend and is lacking in other friends. He lives on his own (a couple of blocks from his parents) in a rental unit in the town area of Taree. He has a disability support pension. He drives a car. He spends a lot of time at home. He is conscious of his appearance (his scars and his teeth and movement). He has difficulty getting to sleep.

80 At this time, it is convenient to look at the matter of the conflicting evidence given by the experts on the question of the causation of the incident injuries.

81 On the one side, are experts relied on by the plaintiff (Professors Clement and Cordner and Dr Davis). On the other side are the defendant’s experts (Professor Hilton and Dr Cala). In addition, other doctors (including Drs Bookallil and Kendall) have expressed views. What has been said by them comprises a significant body of material.

82 I shall expressly refer to certain of the expert material placed before the court. This reference is not intended to be exhaustive.

83 Professor Clement is an expert in the field of forensic dentistry. He has had experience in dental practice and investigation (including in the area of dental damage caused by trauma). Because of his qualifications and experience, material was sent to him by Professor Cordner (a Professor of Forensic Medicine) to ascertain the cause of the dental injuries. He examined a dental radiograph and specimen teeth. He provided an initial report, but added that without more information it was impossible to come to many firm conclusions. Subsequently, Professor Clement, in conjunction with Dr Hill (a general dental practitioner and consultant forensic odontologist), conducted a full dental examination of the plaintiff. He then provided a further report. In it, he expressed the view that the claim of assault by police was quite plausible. He said that the pattern of injuries is complex and fits with the plaintiff’s story and is consistent with a severe beating. He said that he would have reached the same conclusion regardless of what the plaintiff had told him. Of what he regarded as the three possibilities, he considered that the claim of assault whilst unable to defend oneself or avoid blows whilst dazzled by a torch was the most convincing explanation for the injuries. He considered that if other injuries were taken into account this view was strengthened. He took the view that a fall alone has to be discounted as the cause of all of the plaintiff’s injuries.

84 In the later of his two reports, he said:-

“If one restricts oneself to a consideration of the oro-facial injuries alone and in isolation from other injuries recorded at the time, it is difficult, if not impossible to imagine that:
an upward blow to the mouth which is the most common plausible explanation for the through-and-through injury and some of the damage to anterior teeth,
a blow to a point below the chin, causing splitting of the skin and some of the fracture damage to the anterior teeth and
a blow to the left side of the face, causing a depressed fracture of the cheek bone

all occurred as the result of a simple fall over a wall…..”

He added that in his experience he had never seen such a pattern of injuries arising from a fall nor from a single blow to the face. It was his view that the injury pattern is much more consistent with several blows to the face and head. He was regarded by the defendant as having come to a fairly firm conclusion that a fall was not an explanation for the incident (see inter alia Transcript p545).

85 Like other experts, Professor Clement did have material which suggested that there may have also been an injury to the spinous process. This was regarded as giving further credence to his opinion that the plaintiff experienced a number of severe blows from different directions to different parts of the body.

86 Professor Cordner provided a consolidated report. He was later asked to encapsulate his opinion in one sentence. This he did and said “In my view, it is more probable than not that an assault has caused or contributed to the totality of the injuries suffered by Austin Knight”. He further said that such opinion should be read as the concluding sentence of the consolidated report.

87 In oral evidence he expressed a view which favoured an assault as the cause of the injuries to the plaintiff. He found it easier in his own mind to accommodate the injuries with a scenario that involved more than one significant impact. Whilst he conceded that causation by a fall was possible, he said that he had difficulty in explaining how that could come to pass.

88 He saw the plaintiff as suffering from four areas of injury (or at least a minimum of two different planes of injury). The first area or plane was the top and the back of the side of the head. The second area or plane was the cheekbone or zygoma. The third area or plane was the laceration to the left side of the lower lip. The fourth area or plane was the laceration under the chin. His problem with the fall as a possibility arose from his view that a fall involving contact with a flat surface simply could not bring about the injuries to different areas and planes as suffered by the plaintiff.

89 Dr Davis (a neurologist) was of the opinion that if he had fallen 12 feet on to his head “he would have suffered probably multiple factures”. He believed that the injuries were due to multiple blows by fists plus a blunt instrument.

90 Professor Hilton provided a brief report. He is the Clinical Director of the Department of Forensic Medicine in New South Wales. In his view, the nature of the plaintiff’s injuries was consistent with him falling some 2.75 metres with his head impacting on a firm surface.

91 Whilst he said that he was in substantial agreement with Professor Cordner, he tended to favour a fall from a height rather than an assault as the mechanism for the closed head injury. He regarded the extent of the brain injury as more in keeping with a fall from a height than a simple assault. He regarded the brain damage as being very severe in multiple areas. He spoke of very diffuse vascular brain damage which is usually associated with very severe impact. He said that “To achieve this degree of brain injury from a straight assault is low, not impossible”. He did not favour a fall from 10 feet directly on to the head. He favoured something intervening (perhaps a landing on his feet and then falling or a landing on his feet, being beaten and then falling). He said that there was no correlation between the number of intracerebral bleeds and the number of blows. The area of haematomata (10 or 12) may have been caused by a single impact and may be consistent with more blows to the head than one.

92 He acknowledged that he could not challenge the view of Professor Clement “on the dental damage which he has seen” (that the teeth damage could only be caused by a blow from below). He said that this was outside his field of expertise. He drew a distinction between dental and medical aspects. He concentrated on the latter aspects.

93 He accepted that the injuries were consistent with an assault (by a torch or fist). He gave this evidence:-

“Q. The blow that caused the dental damage must have been quite a substantial blow, mustn't it?
A. Yes.

Q. And consistent, of course, with being struck either in the mouth or under the chin or both?
A. Yes.

Q. The type of force that would be needed in a simple fall to have the conjunction of the serious dental damage and the laceration under the chin would require, you would have to have a fall on to the chin of some substance?
A. You would have to have a fall of some substance which the force was either directly or indirectly transmitted to the teeth or tooth.

Q. You would accept, wouldn't you, taking those two injuries together they are the sort of injuries you classically see in an assault with either fists or an object?
A. Yes.

Q. And a fractured zygomatic arch similarly an assault with fists or an object?
A. Yes.

Q. An area of contusion to the left temporo parietal area is just what you would expect if somebody was being beaten over the head with a police issue torch 30 centimetres long?
A. ‘Beaten over the head’ would not be the phrase I would choose - beaten around the head, yes.

Q. So that we can explain each of the plaintiff's areas of injury, by accepting that they were caused by blows either with the torch or with fists or a combination of both?
A. Or the fall, yes.”

94 Dr Cala (a forensic pathologist) was qualified shortly before the trial. He supported the view taken by Professor Hilton (who he said was in fact his boss). Both Professor Hilton and Dr Cala are employed by the same institution. It is an institution which had dental experts. The defendant did not rely on any dental expert.

95 Dr Cala thought that there were a number of ways these injuries may have been occasioned and he stressed that he was not entirely sure of the precise way that they came about. He agreed that the damage to the teeth was severe, but was not sure as to what it was. He was not entirely sure as to the nature of the injuries to the plaintiff’s mouth. His opinion was that the overall pattern of injuries was more consistent with a fall than an assault. If there had been an assault with fists and weapons, he would have expected other injuries. He conceded that some injuries by themselves may have been caused by an assault (the chin, the fractured left zygomatic arch and the left temporo parietal area). He agreed that the latter injury was consistent with a blow over the head with a heavy object. Also, he agreed that this injury could have been possibly caused where a person had been rendered unconscious by blows to the face and by falling and striking that area on the ground. He regarded the injury to that area as unusual and that it was not common for it to be caused by a single substantial blow. His views relied on erroneous material as to injury (“the fractures of the spinous processes” and a possible fracture of the left arm). These were factors that led him to favour a fall in preference to an assault. The dental aspects were also outside his field of expertise.

96 Before leaving this area of conflict, mention should also be made of certain matters. There is disagreement amongst the experts as to whether or not the haematomata could be caused by one blow. There is disagreement as to what follows from the absence of injury to other parts of the body. There is also disagreement as to whether or not there were different planes of injury. Professor Hilton relied on a distorting action and Dr Cala relied on a rolling action to explain their positions. The latter was not favoured by both Professors Clement and Cordner. Neither explanation seemed to me to be persuasive.

97 Views have been expressed by other experts. I shall refer to some of those views. The reference is not intended to be exhaustive.

98 Dr Bookallil took the view that both the explanation of a fall and the explanation of the blows are possible and that he was unable to exclude either one. He could not distinguish between the two possible sources of injury. He did not agree with what had been said by Dr Davis. He gave the impression that the views of the latter had been overtaken by modern technology.

99 Also, he said that it was highly unlikely that the plaintiff would ever remember what happened to cause his injuries and he said that he would have difficulty giving credence to any comment made by the plaintiff concerning the incident.

100 Dr Lucire has also expressed views on these matters. She speaks of memories that are fabricated, confabulated or reconstructed. She regarded recovered memory as being unreliable. She observed that the plaintiff showed serious defects in his memory and serious defects in his recall of many events around the time of his head injury. She regarded his so called “memory” of events surrounding the head injury as looking like reconstruction and not being reliable.

101 Mr Bullock has been in practice as a hypnotherapist for about 36 years. He was known to Dr Lucire as a famous hypnotherapist whose skill lay largely in group hypnosis and helping people give up smoking. She said that he was quite effective and well patronised. Apart from a certificate which confirms completion of a course, he has no formal qualifications. He had been asked to try and recover the plaintiff’s memory (so that he would know what happened). In his experience, hypnosis had produced mixed results in reviving memory.

102 Dr Barnier has provided both reports and oral evidence. She makes many criticisms of what was done by Mr Bullock (including the number of leading questions, the setting up of expectation as to memory and inappropriate pressure). In essence she regarded memory enhanced by hypnosis as sometimes reliable, sometimes unreliable and sometimes a mixture of both. Both she and Mr Bullock saw a need for recovered memories to be tested against objective evidence. She regarded the enhanced memory as being of unknown accuracy.

103 I now return to the plaintiff’s cause of action. It is framed in negligence. The plaintiff bears the onus of proving that claim. The court has to be satisfied on the balance of probabilities (s 140 of the Evidence Act 1995 (the Act) ).

104 In this case, the negligence claim throws up a number of considerations. Firstly, there is the question of the cause of the injuries. Secondly, there is the question of whether or not there has been breach of duty owed by the named defendant. This matter involves the consideration of whether or not the named defendant can be held to be vicariously liable.

105 I shall start with the first consideration. This involves questions of whether or not the injuries were caused by assault and/or fall. I shall now approach this problem by looking at material other than the evidence of the plaintiff concerning the accident.

106 I have already referred to matters which create problems in the evaluation of the plaintiff’s evidence. As earlier indicated, I propose to return to those matters in due course. Also, I have already expressed the adverse view I have formed as to credibility and reliability of both police officers. Further, I have already expressed the favourable view I have formed as to the credibility and reliability of Mr Doherty. That his evidence should be largely accepted does not seem to be in dispute. There is also some other independent material (including ambulance documentation). As an initial step, I have looked at the injuries and the expert evidence.

107 This evaluation has led me to the conclusion that I prefer the material that favours assault (as opposed to a fall) as the cause of the plaintiff’s injuries. In my view, both Professors Clement and Cordner were impressive witnesses. Professor Clement was the only expert in the dental field and the dental damage was severe. I accept inter alia his evidence in that area. Largely, the competing views admit of assault as at least being a possibility. I consider that assault provides the only plausible explanation for the injuries suffered by the plaintiff in the incident.

108 Neither party has espoused the third possibility and I am not satisfied that it offers a plausible explanation for the injuries.

109 There are particular` matters which (individually or together) either reinforce or sit comfortably with the conclusions earlier expressed. I shall refer to some of them. This reference is not intended to be exhaustive.

110 I am satisfied that there was opportunity for Constable Jones to assault the plaintiff and cause the injuries that have been suffered by him. As I have said, I do not accept the evidence that Constable Jones was always in the sight of Senior Constable Parker. There was a period when he was out of sight of both Senior Constable Parker and Mr Doherty. Constable Jones was running and had a more direct route to the driveway area. The police vehicle was not travelling fast. I do not accept the evidence that Constable Jones was just reaching the plaintiff when the vehicle stopped in the driveway. In my view, he was then walking back to the vehicle. It was then that he told Senior Constable Parker of the injury to the plaintiff and of the need for help, which led then to the calling of an ambulance. The plaintiff was seen to by lying face down (by both McLaren and the police).

111 The injuries are consistent with several blows and could have been caused by a small number of blows (by fist and/or torch). A combination of blows to the plaintiff (which may have rendered him unconscious), the plaintiff then falling or being knocked to the ground and striking his head is a possible alternative. The injuries were largely on the left side of the face and Constable Jones is right handed. The very tall Constable Jones had a torch which provided the only light in the driveway area until the arrival of the police vehicle (it was otherwise extremely dark). It was a piece of equipment which alone had the potential to inflict damage of the nature suffered by the plaintiff.

112 The events of this quiet New Year shift have some unusual features. There were at least two police officers persisting in an avid pursuit of three young men (one of whom may not have been involved in the minor matter of trivial nature that took place on Martin Bridge). Despite the triviality of what was involved, the officers were very keen to arrest the three young men. If Senior Constable Parker’s evidence as to the presence of the panel van driver at the scene of the arrest of Doherty is accepted, then the police are seen as showing no interest in a material witness. The police left Mr Doherty on his own unrestrained in the back seat. After seeing the plaintiff walking in Victoria Street (through Fotheringham Park when they were in Victoria Street), they questioned Mr Doherty and were informed by him that the plaintiff was one of the three and that he had no involvement in the activity on the bridge. In the light of this information, they persisted with their decision to pursue and arrest the plaintiff.

113 The defendant says that Constable Jones lacked any motive for assaulting the plaintiff. I find that contention unpersuasive. It seems to me that whilst the matter of motivation may remain somewhat unclear, in the circumstances of this case an assault by a police officer is not fanciful (inter alia the plaintiff had given the police “the slip a coupIe of times” and had put them to trouble in effecting an arrest). It may be added that it is not unusual for this Court to deal with cases where there is evidence of an aggressive police response without apparent reason.

114 The decision to arrest the three young men seems to have had an irrevocable quality about it. The need to persist with the pursuit could be expected to arouse frustration and/or irritation. Whilst what happened in the dark driveway, prior to injury, can be expected to remain in the realm of the unknown, it is not unrealistic to entertain the possibility that things also happened in the driveway area which may have triggered an outburst of activity from Constable Jones.

115 It seems to me to be unlikely that a person vaulting over such a fence (particularly a fit and athletic young person such as the plaintiff then was) would land head first on the other side of the fence. Such a fall could be expected to not only render him unconscious, but also leave him with at least more severe head injury. Indeed, there was probability that it could leave him dead. I reject the submissions of the defendant that only something in the nature of a 10 foot fall (as opposed to an assault) could have caused his injuries. Comment has been made of his perhaps unawareness of the depth of the fall on the other side of the fence, the effect of the dark conditions and the effect of alcohol consumed. These are little more than matters of surmise. On one view, a fall greater than that expected may have given him more time to adjust his body in the course of the descent. I prefer the view that the absence of injury to other parts of the body (including his nose, hands, arms, chest, abdomen or back) has significance. In the circumstances of this case, it seems to me that it also favours assault as being the cause of his injuries.

116 I am satisfied that the injuries suffered by the plaintiff in the incident were caused by police assault. In reaching that finding, I have had regard inter alia to the matters referred to in s 140 (2) of the Act (including the gravity of the allegation of assault).

117 In the light of the findings made, it is not necessary to grapple with the problems affecting the plaintiff’s evidence concerning the incident. However, it may be of some assistance if certain observations are made.

118 In the light of the nature of the injuries and what the experts have said concerning the effect of those injuries on memory, at best what has been presented as pre-hypnosis recollection would have to be treated with great caution.

119 Dr Barnier had reservation as to whether or not it had been established that the plaintiff was under hypnosis. If he was, the enhanced recollection produced by the hypnosis may not be admissible. The question of whether or not the criminal cases have application in a civil context may be an open one (in Tillot, it was said that the civil cases may be put to one side as the instant case was not concerned with the exclusion of evidence for discretionary or other reasons in a civil case). The parties did not take me to any civil case. As I understand the position, counsel were not aware of any such case which would assist in these proceedings. If the criminal cases do have application, regard is to be had to the procedural safeguards for admissibility. Whilst I do not have to pursue the matter, it may well be that those which are of application in this case have not been met. The plaintiff would bear the onus of satisfying the court that it is safe to admit the evidence. The evidence adduced in this case leads to the view that recollection enhanced by hypnosis is of dubious reliability. It seems to me that this is a case where if the evidence had been regarded as admissible the court may have been persuaded to invoke the powers given by s 135 of the Act to refuse to admit the evidence.

120 I have been able to make the finding of assault without recourse to evidence concerning the incident given by the plaintiff himself. Whilst his evidence of pre-hypnosis recollection has to be treated with great caution, I do not consider that it needs to be totally disregarded. In my view, aspects of it can be given weight and these support what has already been found. There is consistency with what has been said by Mr Doherty and other evidence that is not in dispute.

121 During submissions, there was discussion as to what flowed from the finding that has now been made. It seemed to be common ground that a finding of assault, subject to the question of vicarious liability, led to the plaintiff succeeding on the existing count framed in negligence.

122 The question of vicarious liability has been but briefly touched on during submissions. The matter has been raised by the defendant in little more than a formal sense. Whilst at common law the defendant would not have been held liable, the position is now governed by statute. In my view, s 8 of the Law Reform (Vicarious Liability) Act 1983 has application in the circumstances of this case (see inter alia Prior v State of New South Wales BC 9805599).

123 Accordingly, I am satisfied on the balance of probabilities (as required by s140 of the Act) that the defendant has breached the alleged duty of care and that such breach has caused damage to the plaintiff.

124 I now turn to the question of the amendment of the Statement of Claim. The application to amend is indeed a very belated one. However, in the circumstances of this case, it is unnecessary to dwell on circumstances such as delay and prejudice. The one issue joined between the parties is that of futility.

125 The first amendment would be futile. There is no evidence that Senior Constable Parker had any involvement in an assault on the plaintiff. The second amendment related to the adding of an alternative claim in negligence. In the light of the findings that have been made, the alternative claim simply does not arise. The third amendment sought to add a claim for aggravated and exemplary damages. In the circumstances of the case, I am not satisfied that it would be futile to allow the plaintiff to advance such a claim. Accordingly leave is given to amend to that limited extent.

126 I propose to direct the entry of judgment for the plaintiff for damages to be assessed.

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Last Modified: 12/04/2001