Lakalaka v Group 4 Falck Global Solutions Pty Ltd

[2007] NSWDC 79

CITATION:	Lakalaka v Group 4 Falck Global Solutions Pty Ltd [2007] NSWDC 79
HEARING DATE(S):	29, 30, 31 January and 1 February 2007
JUDGMENT DATE:	9 February 2007
JURISDICTION:	Civil
JUDGMENT OF:	Johnstone DCJ at 1
DECISION:	Judgment for the defendant
CATCHWORDS:	ASSAULT and NEGLIGENCE - Detainee at Villawood Detention Centre stabbed by fellow detainee - Injured detainee alleged stabbing caused as a result of assault by or negligence of detention officers - Case turned on its own facts - no point of principle decided
LEGISLATION CITED:	No legislation cited
CASES CITED:	No cases cited
PARTIES:	Soane Lakalaka (Plaintiff) Group 4 Falck Global Solutions Pty Ltd (Defendant)
FILE NUMBER(S):	1367/05
COUNSEL:	Mr C Evatt with Ms L Evans for the plaintiff Mr P Cummings for the defendant
SOLICITORS:	Slattery Thompson (Plaintiff) Hunt & Hunt (Defendant)

JUDGMENT
Introduction

1. Mr Lakalaka was injured on 14 November 2004 at the Villawood Detention Centre, where he was a detainee. He alleged that during an attack on him by some Chinese detainees he was stabbed and stomped on the head.

2. The defendant was the operator of the Villawood Detention Centre and the employer of the detention officers working at the centre.

3. Mr Lakalaka alleged that his injuries were incurred at a time when he was being forcibly held by a number of detention officers, such that he was prevented from defending himself from the attack or from avoiding the attack by escaping to another part of the centre.

4. His claim is that he was injured either as a result of an assault by those detention officers by whom he was held, or by the negligence of the detention officers present in failing to adequately protect him from the attack, for which the defendant is liable as their employer.

5. The defendant denies that Mr Lakalaka received any injury as a result of any assault by its officers and denies that he was injured as a result of any negligence. It also says that Mr Lakalaka failed to take reasonable care for his own safety.

6. The issues for determination as to liability are:

· Was Mr Lakalaka injured as a result of an assault by detention officers forcibly holding him?

· Was Mr Lakalaka injured as a result of negligence on the part of the detention officers or on the

part of the defendant?

· If so, was Mr Lakalaka guilty of contributory negligence?

The events of 14 November 2004

7. Mr Lakalaka was a detainee at the Villawood Detention Centre from 17 March 2003 until his release on 21 January 2005. He says that shortly after 7.00pm on 14 November 2004, whilst in the common area of Stage 1 (see Exhibit 2), he was stabbed on the chin by an aluminium broom handle wielded by a Chinese detainee and stomped on the head by another Chinese detainee, whilst being forcibly held by detention officers. He gave evidence that he was grabbed by 5 officers (T 9.40-44) who held and twisted his arms, grabbed his shirt, grabbed his waist and pulled the string on his pants (T 9.50-58). He was held and prevented from getting away (T10.6-12). One detention officer grabbed him in a headlock and brought him down as he struggled to move (T 10.20-23). He was stabbed. He continued to struggle, trying to move, and as he raised up he was stabbed on the chin with an aluminium broom handle (T 10.25-39). This knocked him out and he fell down (T 10.42-3), where he was stomped on the head by another Chinese detainee as he came back awake again (T 10.45-50).

8. It was Mr Lakalaka’s case that he was unable to defend himself against the attack because the detention officers were grabbing him. If he hadn’t been grabbed and wasn’t being held he would have escaped somewhere, to another part of the building (T.10.52 – 11.7).

9. The events leading up to the attack on Mr Lakalaka assumed importance during the trial. According to the account given by Mr Lakalaka, he had returned from a visit period that ended at 7.00pm in which his wife had brought him some food. As he was taking the food back to his dormitory (Dorm 3) he passed the pool room (Exhibit 1.2) from which other detainees called to him to come and play. He returned from his dormitory (Exhibit 1.3) and joined a queue to the pool room being formed in the common area adjacent to a room called the “Fish Bowl” (Exhibit 1.1). As he did so, some 20 to 30 Chinese detainees started congregating, yelling, pointing and screaming. All the Chinese then left, but returned shortly afterwards with weapons, including sharpened toothbrushes and nails. They were menacing and threatening. Detention officers in the vicinity placed themselves between the group of Chinese and those in the queue to the pool room, including Mr Lakalaka. The officers called for back up, then grabbed a couple of people including Mr Lakalaka. It was then that the attacked occurred.

10. Mr Lakalaka’s version of events was that the attack was unprovoked and that he was unaware of the reason for the attack. He specifically denied that there had been any preceding event or episode to precipitate the attack. He said there was no argument whatsoever (T 47.50).

11. The version of events proffered on behalf of the defendant was quite different both in respect of the attack and as to the events leading up to the attack. The defence case was that Mr Lakalaka was not injured as a result of his being grabbed or restrained by detention officers, either by way of being stabbed or stomped on.

12. It was conceded that Mr Lakalaka was stabbed on the chin, by a Chinese detainee, Mr Chen, and bled profusely, but at the time of that attack Mr Lakalaka was not being forcibly held by detention officers or at all.

13. It was the defendant’s case that prior to the attack on him, Mr Lakalaka was in the pool room with other Islander detainees, about to start playing pool, where he was involved in an altercation in which Mr Lakalaka slapped or punched Mr Chen.

14. This altercation was witnessed by one of the detention officers in the vicinity, Mr Daniel Pavlovic. Following the altercation, he saw Mr Chen run out. His lip was bleeding. Concerned that the situation might escalate he called for assistance from two fellow detention officers: Mr Aiolupotea and Mr Bainbridge, who were stationed at the nearby Alpha 4 post, near Dorm 3. They went to the pool room and spoke to Mr Lakalaka.

15. The officers then observed Chinese detainees entering from other parts of the building and gathering in the common area between the pool room and the Fish Bowl. One of the officers told Mr Lakalaka and the other Islander detainees to return to their dormitory. Other detention officers appeared on the scene, including Mr Tuhe and Mr Rogers, who had been in an office at the back of the Fish Bowl. By this stage there were some 7 officers present. The Chinese group was shouting and gesticulating at Mr Lakalaka. The Islander group emerged from the pool room and started shouting back at the Chinese group. The detention officers formed an ‘extended line’ between the two groups, facing the Chinese, to keep them separate. They started to move forward, talking to the Chinese, trying to calm them and defuse the situation, and slowly moving them back with a view to dispersing the group. The Group of Islanders was standing behind the line of officers, shouting at the Chinese.

16. Suddenly, and without warning, Mr Chen came running forward to the line with a raised metal broom handle which he thrust over the line and stabbed Mr Lakalaka in the chin.

17. Mr Lakalaka, in retaliation, pushed through the line, followed by the other Islander detainees, whereupon ‘all hell broke loose’ and a massive fight ensued between the Islanders and the Chinese.

18. Mr Pavlovic called a ‘Code Red’ on his radio following which other officers arrived to assist in quelling the ensuing brawl and implementing a ‘lock down procedure’, returning the detainees to their dormitories. During the course of the ensuing melee, which went on for some 5 minutes, various detainees were injured. Several officers observed Mr Lakalaka attacking Chinese detainees. Mr Bainbridge intervened in one altercation in which Mr Lakalaka was dragging a Chinese detainee towards the computer room. He grabbed Mr Lakalaka, held him against a wall, and told him to calm down.

Was Mr Lakalaka injured as a result of an assault by being forcibly held?

19. The primary issue for determination is whether Mr Lakalaka was injured as a result of an assault by detention officers forcibly holding him, thus preventing him from defending himself or escaping.

20. Counsel submitted that I should find that Mr Lakalaka was being held and physically restrained, against his will, whilst being attacked, thus facilitating that attack. None of the detention officers involved was prepared to admit to holding Mr Lakalaka, or to concede that other fellow officers were holding him, out of a concern that they would get into trouble and be censured for having done so. I should accept that Mr Lakalaka was held, in that he complained shortly following the incident that his injuries were caused because the officers held his hands back (Exhibit B). Similarly, because he told Mr Aiolupotea shortly after the brawl that if he had not been held back, he would have been all right, and would not have been injured (T 200.17 and 201.9). Likewise, because in his statement made that day he said: “Due to the officers restraining me I was put in harm’s way resulting in me being stabbed multiple times” (Exhibit 3).

21. It was further submitted that Mr Lakalaka was corroborated by fellow detainees who witnessed events: Mr Tuncock and Mr Kinikini

22. Finally it was submitted that the only available inference is that Mr Lakalaka must have been being held whilst struck by Mr Chen, otherwise he would have gotten out of the way.

23. To find in favour of Mr Lakalaka would require me to accept his version of events in preference to the evidence of the detention officers involved.

24. Counsel for the defendant submitted that I should reject the evidence of Mr Lakalaka as to when and how he was injured, and that I should accept the defence version of events. Mr Lakalaka lacked credibility, the corroboratory evidence called was either untrue or unconvincing, and his evidence should not be preferred to that of the detention officers who gave a largely consistent version of events that was clearly not fabricated.

25. I was not satisfied that Mr Lakalaka was a witness of credit. In short, I did not believe his evidence.

26. I reached this conclusion not because of his criminal history, which included conduct indicating a propensity for deception and a capacity to be untruthful. Rather, it was the manner in which his case was presented and demonstrated to be untrue in a many significant aspects. This included his conduct prior to the trial, in particular his lack of candour, indeed his deceitfulness, in providing information to doctors, as well as the instances of clearly false evidence at trial.

27. His version of the events leading up to the attack by Mr Chen was simply untrue. His denial that there was a precipitating event involving Mr Chen was manifestly demonstrated to be false. His assertion that he was not in the pool room at all is unsupported, even by his own witnesses.

28. In a number of instances Mr Lakalaka clearly exaggerated or misrepresented his injuries. This was evident from the video (Exhibit B) and from various medical reports (Exhibits A, E, 7 and 14). Perhaps the starkest example is to be found in the report of Dr Kendall of 15 June 2006 (page 3 of 5) when Mr Lakalaka showed him the 14cm transverse scar on the back of his neck. Mr Lakalaka admitted in evidence that this scar was not caused by any wound occasioned on 14 November 2003. His denials of any psychiatric problems or treatment prior to 14 November 2003 were also proven to be manifestly false.

29. His evidence as to events in the ambulance and at the hospital, to the effect that he was unable to speak to ambulance and medical personnel because he was unconscious, was a clear fabrication. His denial of any misbehaviour or poor conduct at the Villawood Detention Centre prior to 14 November 2003 was also false (Exhibits 10 to 20). His evidence denying his statement (Exhibit 3) was also obfuscated. Even his own counsel adopted the statement, in submissions, as that of Mr Lakalaka.

30. No witness gave a version which had Mr Lakalaka being forcibly held on the ground and stomped on the head.

31. I turn to the witnesses called in an attempt to corroborate Mr Lakalaka.

32. Mr Tuncock was a most unsatisfactory witness. It was submitted by the defendant that he either had a faulty memory or gave untrue evidence. In my view, his evidence that Mr Lakalaka was being held by 4 or 5 officers, one on the left, one on the right, and one behind him, and that he was struggling to get away, at the time he was jabbed by Mr Chen with the broom handle, was simply untrue. His evidence that the incident occurred when he, Mr Tuncock, was walking towards the computer room, is improbable. His evidence that there was fighting before any detention officers arrived is not supported by anyone, and is at odds with his written statement (Exhibit H).

33. The version given by Mr Kinikini largely accorded with that of the defence except his evidence that Mr Lakalaka was being held at the time a Chinese detainee lunged at him with a broom handle. He agreed that at that time the officers were standing in front of Mr Lakalaka, in a line. He did not see the broom strike Mr Lakalaka, as his line of sight was obscured, but did see that the officers were holding his hands. He also said that the officers holding Mr Lakalaka were not facing the Chinese, but had their backs to them.

34. Mr Kinikini’s version of events was also at odds with the version given by Mr Lakalaka in other respects: unlike Mr Lakalaka, Mr Kinikini said that Mr Chen lunged at Mr Lakalaka with the broom handle across the line of officers; that he was only held by two officers; and that he was only held by the arms, but not in a headlock, and not on the floor.

35. I am unable to accept Mr Kinikini’s version in its entirety given these inconsistencies and discrepancies. In particular I am not satisfied that Mr Lakalaka was being held by the hands by officers at the time of the attack by Mr Chen across the extended line.

36. Finally, I come to the statement dated 20 September 2005 of Mr Mohammed Azar, a detainee who was present and witnessed events. His statement is interesting in that he was one of the Islanders with Mr Lakalaka in the pool room prior to the attack on Mr Lakalaka. His version is consistent with that of the detention officers as to the attack by Mr Chen. Moreover, he did not see any officer holding or putting his hands on Mr Lakalaka until after the attack by Mr Chen.

37. The evidence of the defence witnesses was credible and consistent. I do not accept that they omitted to admit to holding Mr Lakalaka through some fear of censure. I am satisfied that each of them gave an honest straightforward account. I am satisfied that prior to the attack by Mr Chen, no detention officer held or otherwise forcibly held Mr Lakalaka.

38. I reject the version of events given by Mr Lakalaka and prefer the version given by the detention officers and Mr Azar.

39. I find that Mr Lakalaka was not injured as a result of an assault by detention officers forcibly holding him. Insofar as he was stabbed in the chin by Mr Chen, this did not occur at a time when he was being forcibly held.

40. The evidence establishes that, during the melee that erupted after Mr Lakalaka broke through the officers’ extended line, with the other Islander detainees, there were incidents during which detention officers restrained and forcibly held him, most notably the episode in which Mr Bainbridge intervened to prevent Mr Lakalaka assaulting a Chinese detainee and held him up against a wall. I am not satisfied, however, that Mr Lakalaka received any injuries of significance whilst being so held or restrained. More importantly, I am not satisfied that any holding or restraining of Mr Lakalaka during the subsequent melee did or could amount to an assault, and in my view the conduct of the officers in this regard was entirely appropriate and legitimate.

Was Mr Lakalaka injured as a result of any negligence?

41. The next issue for determination is whether Mr Lakalaka was injured as a result of negligence on the part of the detention officers or on the part of the defendant.

42. I leave to one side the issue as to whether Mr Lakalaka can make a case in negligence on facts which represent the defendant’s case and which are entirely inconsistent with his own version of events.

43. The first claim is that the detention officers failed to take reasonable care for Mr Lakalaka’s safety by forcibly holding and restraining him and failing to intervene in such time to prevent other detainees from attacking him. The second claim is that the defendant negligently allowed detainees to make and carry weapons.

44. I have already found that at the time of the attack by Mr Chen in which Mr Lakalaka was stabbed in the chin, he was not being forcibly held by any detention officers. Rather he was voluntarily standing behind the extended line, having refused to return to his dormitory, despite having been told to do so.

45. Insofar as he was stabbed in the chin by Mr Chen, this injury occurred as a result an attack that was totally unexpected and happened so suddenly that the officers were not able to prevent it.

46. To the extent that he was otherwise injured or assaulted by Chinese detainees whilst being forcibly held by officers or otherwise detained, this occurred in the subsequent melee, and not as a result of anyone’s fault but his own.

47. The ensuing melee was precipitated by Mr Lakalaka breaking the extended line and attacking Chinese detainees. He never had any intention of returning to his dormitory, as he had been instructed, or otherwise escaping from the Chinese. He was hell bent on revenge for the attack on him by Mr Chen.

48. Counsel did not address in respect of the claim relating to weapons, and I took that claim to have been abandoned. In any event, in my view there was no evidence to support the claim, and no evidence of any causal relationship between any weapons in the possession of any detainees and any injury sustained by Mr Lakalaka. The only relevant implement was the broom handle wielded by Mr Chen, and I am not satisfied that the provision of such a common domestic article amounted to a failure by the defendant to take reasonable care to prevent harm to detainees. This was a detention centre. Stage 1 was reserved for low risk detainees and the evidence was that violence between detainees had not previously occurred at that venue.

49. I am not satisfied that any of Mr Lakalaka’s injuries were caused by negligence either on the part of the detention officers, or on the part of the defendant.

Summary

50. Mr Lakalaka was not injured as a result of an assault by detention officers forcibly holding him.

51. Mr Lakalaka was not injured as a result of negligence.

Disposition

52. For these reasons I enter a verdict for the defendant.

53. I reserve costs pending argument.

54. The exhibits are to remain in court for 28 days, after which period they may be returned to the parties.