LO v Northern Territory of Australia; EA v Northern Territory of Australia; KT (as Litigation Guardian for KW) v Northern Territory of Australia; and LB (as Litigation Guardian for JB) v Northern Territory of Australia

LO v Northern Territory of Australia; EA v Northern Territory of Australia; KT (as Litigation Guardian for KW) v Northern Territory of Australia; and LB (as Litigation Guardian for JB) v Northern Territory of Australia [2017] NTSC 22
PARTIES:LO

v
NORTHERN TERRITORY OF AUSTRALIA

AND:EA

v
NORTHERN TERRITORY OF AUSTRALIA

AND:KT (as Litigation Guardian for KW)

v
NORTHERN TERRITORY OF AUSTRALIA

AND:LB (as Litigation Guardian for JB)

v
NORTHERN TERRITORY OF AUSTRALIA

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:14 of 2015 (21508784);
15 of 2015 (21508785);
19 of 2015 (21510204); and
26 of 2015 (21513348)

DELIVERED: 21 March 2017
HEARING DATES: 26-30 SEPTEMBER 2016 AND
4-5 & 17-18 OCTOBER 2016

JUDGMENT OF: KELLY J
CATCHWORDS:

TORTS – Intentional tort – Battery – Defence – Reasonable and necessary in the circumstances
TORTS – Intentional tort – Battery – Defence – Lawful justification – Whether an offence under the Weapons Control Act 2001 (NT) – Whether prison officers lawfully called upon to assist – Youth Justice Act 2005 (NT) ss 151, 152, 153, 157 – Actions authorised by Youth Justice Act s 151, 152, 155
TORTS – Intentional tort – Battery – Defence – Self-defence or in defence of another
TORTS – Intentional tort – Assault – Elements – Apprehension of harm – Subjective intention to create apprehension – Actual apprehension of harm – Reasonableness of apprehension
DAMAGES – Aggravated Damages – Exemplary Damages – Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 19
STATUTES – Interpretation - Weapons Control Act 2001 (NT) – s 12(2)
STATUTES – Interpretation – Youth Justice Act 2005 (NT) – s 157(2)

Legal Profession Act 2004 (NSW) Div 9 Pt 3.2
Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 19
Prisons (Correctional Services) Act 1980 (NT) s 8, s 9, s 62, s 62(2)
Public Sector Employment and Management Act 1993 (NT) s 63(1), s 63(2)
Youth Justice Act 2005 (NT), s 151(3)(c), s 152(1), s 152(3), s 153, s 153(1), s 153(2), s 153(3), s 155, s 157(2)
Weapons Control Act 2001 (NT) s 6, s 12, s 12(1), s 12(1)(a), s 12(2)
Weapons Control Regulations 2001 (NT) Schedule 2 Item 18
Lackersteen v Jones & Ors (1988) 92 FLR 6 also [1988] NTSC 60; Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; Whifeld v De Luret & Co Ltd (1920) 29 CLR 71; Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645, applied
New South Wales v Williamson (2012) 248 CLR 417, distinguished
ACN 087 528 774 P/L (formerly Connex Trains Melbourne P/L) v Chetcuti (2008) 21 VR 559; Beckford v The Queen [1988] AC 130; Edwards v Tasker (2014) 34 NTLR 115, followed
Briginshaw v Briginshaw (1938) 60 CLR 336; Carson v John Fairfax & Sons Pty Ltd & Slee (1993) 178 CLR 44; DPP (NSW) v Gribble (2004) 151 A Crim R 256; DPP’s Reference 1993 (ACT) (1993) 71 A Crim R 115; Jones v Dunkel (1959) 101 CLR 298; Majindi v Northern Territory (2012) 31 NTLR 150; Makri v State of New South Wales [2015] NSWDC 131; (2015 20 DCLR (NSW) 276; Palmer v The Queen [1971] AC 814, referred to
Harold Lunz, Assessment of Damages for Personal Injury and Death: General Principles (Butterworths Australia, 4th ed, 2002)
REPRESENTATION:
Counsel:
Plaintiffs:K Foley
Defendant:D McLure SC and T Moses
Solicitors:
Plaintiffs:North Australian Aboriginal Justice Agency Ltd
Defendant:Solicitor for the Northern Territory
Judgment category classification:    B
Judgment ID Number:  KEL1705
Number of pages:  145

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
LO v Northern Territory of Australia; EA v Northern Territory of Australia; KT (as Litigation Guardian for KW) v Northern Territory of Australia; and LB (as Litigation Guardian for JB) v Northern Territory of Australia [2017] NTSC 22
No. 14 of 2015 (21508784); 15 of 2015 (21508785); 19 of 2015 (21510204); and 26 of 2015 (21513348)
BETWEEN:

LO

Plaintiff

AND:

NORTHERN TERRITORY OF AUSTRALIA

Defendant

AND BETWEEN:

EA
Plaintiff

AND:

NORTHERN TERRITORY OF AUSTRALIA

Defendant

AND BETWEEN:

KT (as Litigation Guardian for KW)
Plaintiff

AND:

NORTHERN TERRITORY OF AUSTRALIA

Defendant

AND BETWEEN:

LB (as Litigation Guardian for JB)
Plaintiff

AND:

NORTHERN TERRITORY OF AUSTRALIA

Defendant

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 21 March 2017)

THE PROCEEDINGS

THE PLAINTIFFS

JAKE ROPER

THE ESCAPE ON 2 AUGUST 2014

THE BEHAVIOUR MANAGEMENT UNIT

THE PLAINTIFFS’ CLAIMS

THE NATURE OF THE EVIDENCE AND ISSUES OF CREDIT

(A) THE EVIDENCE

(B) GENERAL COMMENTS ON THE CREDIT OF THE PLAINTIFFS

EVENTS ON THE NIGHT OF 21 AUGUST 2014

THE CLAIM FOR DAMAGES FOR BATTERY AS A RESULT OF EXPOSURE TO CS GAS

(A) WAS USE OF THE CS GAS AN OFFENCE UNDER THE WEAPONS CONTROL ACT?

(B)WERE THE PRISON OFFICERS LAWFULLY CALLED UPON TO ASSIST UNDER YOUTH JUSTICE ACT S 157(2)?

(C) WAS IT REASONABLE AND NECESSARY TO DEPLOY THE CS GAS?

ALLEGATIONS OF ASSAULT BY BRINGING IN THE POLICE DOG AND PRISON OFFICERS IN RIOT GEAR

ALLEGATIONS OF BATTERY AS A RESULT OF BEING HANDCUFFED WHILE TRANSPORTED TO BERRIMAH

ALLEGATIONS OF ASSAULT AND BATTERY WHILE BEING ESCORTED TO A MEDICAL APPOINTMENT ON 22 AUGUST 2014

CLAIM BY LO FOR ASSAULT AND BATTERY AT BERRIMAH ON 23 AUGUST 2014

ALLEGATIONS OF ASSAULT AND BATTERY WHILE BEING TAKEN TO HOLTZE

THE CLAIM BY EA FOR ASSAULT AND BATTERY ON 5 APRIL 2015

THE CLAIM BY EA FOR ASSAULT AND BATTERY ON 6 APRIL 2015

DAMAGES

(A) THE CLAIMS ON WHICH THE PLAINTIFFS ARE ENTITLED TO DAMAGES

(B)DOES S 19 OF THE PERSONAL INJURIES (LIABILITIES AND DAMAGES) ACT PRECLUDE AN AWARD OF AGGRAVATED AND EXEMPLARY DAMAGES

(C) GENERAL DAMAGES

(D) EXEMPLARY DAMAGES

(E) AGGRAVATED DAMAGES

SUMMARY

The proceedings

In four separate proceedings which were heard together, each of the plaintiffs is suing the defendant for damages for assault and battery said to have occurred while the plaintiffs were detained at Don Dale Youth Detention Centre (“Don Dale”). The majority of the allegations arise out of an incident which occurred at Don Dale on 21 August 2014 and its aftermath.
The plaintiffs
EA
On 21 August 2014, EA had just turned 16. He spent his 16^th birthday in a cell in the Behaviour Management Unit (“BMU”) at Don Dale in which he was locked for 23 hours a day. He shared that cell with another of the plaintiffs, JB. (All of the plaintiffs were held in the BMU in the same conditions.)
Video footage of EA taken at the Berrimah Correctional Centre at Berrimah (“Berrimah”) on 25 August 2014 shows that in August 2014 EA was about 6 feet tall, solidly built (not fat) and well-muscled.
By this date EA had an extensive criminal history starting from when he was 11 years old. He had been found guilty[1] of one charge of assaulting a female and one charge of property damage. He had also been found guilty of numerous offences of dishonesty: four charges of unlawful use of a motor vehicle, two charges of unlawful possession of property, six charges of trespass, seven charges of aggravated unlawful entry, and 14 charges of stealing. Up to that time he had also been dealt with five times for breaches of bail and four times for failure to comply with Youth Court orders. In addition, before 21 August 2014 he had committed one further offence of property damage, one of being armed with an offensive weapon, two offences of escaping from lawful custody/detention, four trespasses, five more aggravated unlawful entries, six more thefts, three offences of unlawful use of a motor vehicle and two of receiving stolen property. However, he was dealt with for those matters after 21 August. The offences of being armed with an offensive weapon, escape from custody, trespass on enclosed premises, escape from lawful detention, stealing and aggravated unlawful entry were all committed during an escape from Don Dale on 2 August 2014 with the other plaintiffs or while he was at large following that escape.
EA’s behaviour during his detention in Don Dale can only be regarded as extremely problematical. In the period of approximately six months before the incident on 21 August 2014, he had committed five assaults against staff or other detainees (pushing, punching, kicking/stomping on someone’s head, throwing a chair and a wheelie bin, in two separate incidents, in each of which the thrown object hit the victim); one act of property damage (smashing up lights) and six incidents in which he threatened to assault staff or other detainees (including threats to “smash” others, kick their heads in or hurt them). Three of the threats were accompanied by actual violence, others by aggressive posturing. He was also involved in one escape attempt and one successful escape along with the other plaintiffs and Jake Roper.
JB
JB too was a fit looking, well-built young man. On 21 August 2014, he was 15 years old and by that time he too had a lengthy criminal history. He had been found guilty of recklessly endangering serious harm, possessing or carrying a controlled weapon, and 10 charges of unlawful damage to property, as well as disorderly behaviour, resisting police and possession of cannabis. He too had been found guilty of numerous offences of dishonesty: two charges of receiving or unlawfully possessing property, seven charges of unlawful use of a motor vehicle, 17 charges of aggravated unlawful entry (and three of trespass) and 17 charges of stealing; as well as nine charges of property damage, eight breaches of bail and six failures to comply with Youth Court orders. Importantly for present purposes, by this time he had also been found guilty on two occasions of escaping from lawful custody or detention.[2] In addition, before 21 August 2014 he had committed further offences of unlawful use of a motor vehicle, trespass, being armed with an offensive weapon, a further offence of escaping from lawful custody and a further offence of escaping from lawful detention. However, he was dealt with for these offences after 21 August 2014. The offences of escaping from lawful detention, trespass and being armed with an offensive weapon were committed during the escape on 2 August, or while he was at large following that escape.
While in detention at Don Dale before 21 August 2014, JB was involved in a series of planned, attempted, and actual escapes.
(a)On 24 March 2013, JB and 10 others broke out onto the roof of the facility in an attempt to escape, and during the attempt they caused damage to the facility.
(b)On 8 August 2013, another detainee reported that JB and others were planning an escape. Four days later, on 12 August 2013, JB got out onto the roof again in another attempt to escape and again property was damaged in the attempt.
(c)Police reported to Don Dale that while JB and the others were in police custody following the attempt on 12 August 2013, there had been a scuffle in the cells with police officers and JB and the others were overheard making plans to again escape from custody.
(d)On 17 February 2014, when he was appearing in the Court of Summary Jurisdiction (“CSJ”), JB jumped over the screen in the dock and ran out of the courtroom and then out onto the street.
(e)On 13 March 2014 a Youth Justice Officer (“YJO”) overheard JB and another detainee discussing escaping by attacking a staff member and taking her keys.
(f)On 30 May 2014 JB damaged the door of an escort vehicle in what was construed as an escape attempt.
(g)On 2 August 2014, all of the plaintiffs (JB, EA, LO and KW) along with Jake Roper, successfully escaped from Don Dale.
LO
On 21 August 2014, LO was 17½. Up until 2 August 2014, he had no history of violent offending but had been found guilty of numerous offences of dishonesty: 11 charges of stealing, six of aggravated unlawful entry, two of receiving stolen property, three of property damage, one of trespass and one of unlawful use of a motor vehicle. He also had six breaches of bail, two breaches of Youth Court Orders and one breach of a suspended sentence. In addition he had committed a number of offences – breach of bail, escape from lawful custody, being armed with an offensive weapon, trespass and unlawful use of a motor vehicle - for which he was dealt with after 21 August. All of these, except the breach of bail, arose out of the 2 August escape and its aftermath.
Before the escape which led to the detainees being placed in the BMU, LO had one recorded incident of non-compliance and abuse of staff and two of non-compliance and abuse of staff in which he also threatened staff, but no incidents of actual violence.
KW
On 21 August 2014, KW was 15 years old (due to turn 16 in early November). He too had no history of violent offending but by 21 August 2014 he had been found guilty of very many offences of dishonesty: 18 charges of unlawful use of a motor vehicle, 20 charges of stealing, 12 of aggravated unlawful entry, three of trespass and three of property damage. He also had three breaches of bail and six failures to comply with Youth Court orders. He had also committed a number of offences before 21 August which were dealt with after that date. These included one charge of escaping lawful detention, one of trespass and one of being armed with an offensive weapon arising out of the escape on 2 August and one charge of stealing, two of aggravated unlawful entry and two of unlawful use of a motor vehicle committed while he was at large.
There is no evidence that KW was involved in any incidents of violence, threats, abuse or non-compliance at Don Dale before taking part in the successful escape with Jake Roper and the other plaintiffs on 2 August 2014.
Jake Roper
For the sake of completeness, mention should be made of the behaviour in Don Dale of the other escapee, Jake Roper, whose behaviour on 21 August 2014 led to the events which are complained of by the plaintiffs in this proceeding. About two weeks before the escape, Jake Roper king hit another detainee and kicked him forcefully in the head while he was lying on the ground. The other detainee was sent to hospital.
The escape on 2 August 2014
The successful escape occurred on 2 August 2014. The plaintiffs and Jake Roper got into the gym and armed themselves with long weight bars. They used these to try (unsuccessfully) to break the lock on one of the gates. They also brandished them to keep staff at bay.[3] Still holding the bars they then went to the corner of the fence, climbed over it and ran off. EA, LO and KW were recaptured on 4 August. JB was recaptured on 6 August.
The Behaviour Management Unit
Upon being recaptured, the escapees were placed in the BMU and were still there more than two weeks later on 21 August 2014. Jake Roper was in a cell by himself, EA and JB shared a cell and LO and KW shared a cell. Another detainee who was not one of the escapees was in another cell by himself.
Conditions in the BMU were harsh. The toilet facilities were unhygienic. There was a toilet in each cell which gave no real privacy when the cell was shared, and there was no running water for washing hands or for drinking. The shower was in an enclosed room outside the cells in the BMU known as the exercise yard.
The evidence of the detainees was that there was a bad smell from the drain hole in the floor. When two detainees shared a cell, one slept on a mattress on a raised concrete slab and the other slept on a mattress on the floor. The cells had no windows. The only natural light coming into the BMU came through a glass panel above a door in the exercise yard outside the cells leading to the basketball court. (This door was kept locked.)
The inmates of the BMU ate their meals in their cells.[4] Drinking water was brought to them by YJOs.
Detainees were allowed out for about one hour each day to shower, exercise[5] and use the telephone and the evidence of the plaintiffs was that this was sometimes cut short. They were provided with educational materials (though it is uncertain how long they were in there before this was done) but had no television or other forms of entertainment[6] in their cells.
The plaintiffs also claim in their affidavits that the cells were filthy. However their management plans specified that the detainees were responsible for cleaning the cells each day and the evidence is that they were provided with appropriate cleaning materials.
The BMU was hot and there was no air-conditioning. One of the plaintiffs deposed that a fan was brought in after they had been in there for some time.
These matters were put to the Commissioner of Corrections at the relevant time, Commissioner Middlebrook, in cross-examination and he agreed that the facilities were inappropriate. He said he was concerned about the conditions the detainees were being kept in and about the BMU generally. He said, “I didn’t like the BMU. I’ve never liked the BMU,” but added that the department had no secure alternative to accommodate these detainees who had attempted to escape, had actually escaped (with the use of weapons) and were threatening to try again. The Assistant General Manager of Don Dale at the time, Mr James Sizeland (“AGM Sizeland”) had been told by a YJO that LO had said to him that escaping was easy and he would do it again.[7]
Commissioner Middlebrook also commented that there had been a lack of investment in youth justice in the Northern Territory for years; that this wasn’t a problem that had just arisen in 2014, it had been festering for a long, long time, and successive governments hadn’t really taken responsibility for the situation. In his evidence he also commented on the poor quality of training of YJOs compared with the training given to Prison Officers.
On 6 August 2014 (the day that the final escapee was recaptured), Superintendent Caldwell sent an email to Commissioner Middlebrook and Salli Cohen (the Executive Director of Youth Justice) expressing the following concerns.
Now that we have four escapees in custody and are expecting the fifth we need to consider the appropriate custodial arrangements for this group.
AGM Sizeland has raised concerns about the capacity of the Don Dale Centre to securely hold these escapees.
·Among the concerns is that these detainees have shown a willingness to confront and threaten and it is assumed seriously assault staff.
·It is also evident that the current fencing etc. is not sufficient to prevent determined escape attempts.
·[AGM Sizeland] is concerned that this group may pick another time and make a subsequent escape attempt.[8]
·The maximum security wing has previously identified weaknesses in relation to the doors. Experience has shown that the doors can be kicked open in a determined attack. Again the replacement of the doors was put on hold due to the expense and whilst we awaited decisions about the future of the site.
·The BMU cells are the only truly secure cells available at Don Dale; however there is (sic) only five cells. If these are to be occupied by the five escapees, there is no other isolation cells (sic) available to manage other detainees requiring isolation.
The email went on to outline some suggested short term measures which might be put in place pending the proposed move of the Don Dale youth detention centre to Berrimah. The main proposal was to take early possession of part of Berrimah to house the escapees and some other detainees with high security requirements.
On 21 August 2014, the new prison at 325 Willard Road, Howard Springs (“Holtze”) was substantially completed but not yet commissioned. Berrimah was still in use as an adult prison. The medium to long term plan was for Don Dale to be relocated to Berrimah.
Commissioner Middlebrook gave evidence that he agreed very strongly with AGM Sizeland’s concerns about the inability of Don Dale to securely hold these detainees other than in the BMU. However, he said that the proposal to take early possession of part of Berrimah to house the escapees was not practicable in the circumstances. He said that his department was under extreme difficulties with Holtze at the time. The contractors and the consortium were four months late in delivering Holtze which had been due to be ready on 1 July 2014. As a result, from 1 July until they finally closed Berrimah for adults, the department was operating both Holtze during its commissioning phase and Berrimah with the same staff structure that they normally operated at Berrimah. They had also made a commitment to the Department of Health and government that they would hand over a certain part of the low security unit at Berrimah in early August. They met that obligation but it put them under extreme pressure to maintain Berrimah and to commission Holtze at the same time. Commissioner Middlebrook said that it wasn’t practical to take over B Block or any part of Berrimah until they got the adults moved from there. Nor could they immediately take over part of Holtze to house the escapees (which was an interim solution adopted shortly after the incident on 21 August) as Holtze had not yet been handed over. Corrections had approval to use some of the facilities for the commissioning phase but didn’t yet have approval to utilise the facility to house the youth detainees.

That was the situation as it existed on 21 August 2014. One can readily understand the frustration of the plaintiffs at being kept in such conditions, especially not knowing how long they were to be kept there. On the other hand, it appears that there was nowhere else where they could be kept in secure custody until arrangements could be made to take occupation of part of Berrimah for use as a detention centre for the escapees and other detainees who needed to be kept in a more secure setting than the general areas of Don Dale.
I should emphasise that the plaintiffs are not suing the defendant for the conditions they were kept under in the BMU and it does not fall to me to make any findings or determinations about the appropriateness or otherwise of those conditions.
The plaintiffs’ claims
The plaintiffs are claiming damages for assault and battery arising out of a number of incidents.
The first is the incident at Don Dale on the night of 21 August 2014 which culminated in the release of CS gas[9] into the area of the BMU where the plaintiffs were detained. (A number of claims are made about this incident. They are dealt with in detail below.)
The second incident is the transfer of the plaintiffs from Don Dale to Berrimah in a van on the night of 21 August 2104 while handcuffed.
The third incident involves three of the plaintiffs (EA, JB and KW) being taken to a medical appointment at Berrimah the next day (22 August 2014) handcuffed, shackled and wearing spit hoods.
The fourth incident is an alleged assault and battery of LO by a prison officer in a cell in Berrimah on 23 August 2014.
The fifth incident involves all four plaintiffs being taken from Berrimah to Holtze on 25 August handcuffed, shackled and wearing spit hoods.
The sixth and seventh incidents involve two alleged assaults and batteries of EA by YJOs on 5 and 6 April 2015 in which EA was ground stabilised and handcuffed.
The nature of the evidence and issues of credit
Before embarking on an explanation of what occurred at Don Dale on the night of 21 August 2014, I need to outline the nature of the evidence and comment on matters of credit relating to the plaintiffs.
(a)The evidence
The plaintiffs EA, LO and KW all set out their evidence in chief in affidavits and were cross-examined by counsel for the defendant. JB did not give evidence. The plaintiffs also adduced evidence from a number of prisoners at Berrimah who saw the plaintiffs being taken to medical appointments on 22 August 2014. These witnesses were also cross-examined.
The defendant adduced evidence in affidavit form from AGM Sizeland, from a number of the prison officers who were called to Don Dale on the night of 21 August, from YJOs who were present on that night and from YJOs and prison officers who were involved in or witnessed the other incidents the subject of claims by the plaintiffs in this proceeding. Most of these deponents were cross-examined by counsel for the plaintiffs.
Commissioner Middlebrook did not swear an affidavit. He gave evidence in chief orally and was likewise cross-examined by counsel for the plaintiffs.
I received a number of exhibits including a plan of the BMU, some training material used to train prison officers in the use of CS gas, product information relating to the CS gas, various directives issued by the Commissioner, reports from Don Dale and Berrimah including incident reports from the Integrated Offender Management System (“IOMS”) of incidents involving the plaintiffs and reports of medical attendances, and the criminal histories of the plaintiffs and other witnesses for the plaintiffs.
Importantly, I received CCTV footage showing part of what occurred in the BMU on the night of 21 August 2014, and video footage (taken with a handheld Handycam) showing other parts of that night’s events. The CCTV footage was of poor quality and had no sound. The Handycam footage was clearer and had sound. The defendant tendered a composite video which matched up some of what was shown on the CCTV footage with what was shown on the Handycam video as occurring at the same time.
As discussed above, I also received CCTV footage showing part of what occurred during the escape on 2 August, as well as video footage of the detainees being taken from their cells to be transferred to Holtze on 25 August 2014.
(b)General comments on the credit of the plaintiffs
Generally, when considering each of the plaintiffs’ claims, I have preferred the evidence of the YJOs and prison officers to that of the plaintiffs. I have given an explanation of that in the relevant places of the judgment, but some general comments on credit are in order at the outset.
In relation to credit, I cannot ignore the fact that each of the three plaintiffs who gave evidence, EA, LO and KW has a considerable criminal history involving offences of dishonesty, and each of them has a motive to exaggerate the things they say were done to them and to minimise their own misbehaviour. (Having said that, it is clear that on the night of 21 August 2014 neither KW nor LO misbehaved in any way.)
There are a number of other factors which cast doubt on the credit of individual plaintiffs.
In his affidavit of 21 February 2016, LO deposed that when he got to Berrimah on the night of 21 August, he was allowed a shower but then he had to put the same dirty clothes back on. He added: “In fact I was made to wear the same clothes for about 4 days after we were sprayed with tear gas and then with the fire extinguisher.”[10] This is highly unlikely to be true.
First, the video of the detainees being taken from their cells in the BMU and sprayed with a hose to remove the gas residue shows that they had no shirts on when they were being sprayed. Two of the plaintiffs were dressed only in shorts and two only in long pants. It seems unlikely that the prison authorities would have kept the boys in wet pants – and LO does not mention that the clothes he was made to wear were wet. He does mention it was cold that night and he would surely have mentioned if he had been made to sleep in wet shorts.
Further, he said that the next day he had to go to court and it is unlikely he would have been taken to court in dirty wet shorts and no shirt.
The CCTV footage of three of the detainees being taken from their cells for transport to Holtze on 25 August shows them all in what look like clean new red shirts, dark coloured shorts (no long pants) and black socks.
Witnesses who saw the other three plaintiffs going to the medical appointment on 22 August gave evidence that the boys they saw were wearing the same black shorts and red shirts as in the video of 24 August. It seems unlikely that the other detainees would have been given clean clothes on 22 August and not LO.
Finally, the evidence in relation to LO’s claim that he was assaulted at Berrimah on the night of 23 August (including his own evidence) is that his clothes were removed and he was given ‘at risk’ clothing.
This causes me to doubt LO’s credibility on other matters.
EA also deposed to being in the same clothing until he got to Holtze a few days later. For the reasons set out above, this cannot be true and casts doubt on EA’s credit. (It also raises the suspicion of collusion between the plaintiffs in relation to their evidence.)
In his affidavit of 4 August 2016, KW deposed that every time the Berrimah prison officers put him in handcuffs (including when he was being taken to Holtze) they did it in a way that caused pain to his wrists, arms and shoulders; that the guards would pull his arms back until he felt as though his shoulders were about to give way; and that after being taken out of the handcuffs his arms would ache and he had bruises on his wrists. He confirmed that he was taken to Holtze with his hands cuffed behind his back.
This evidence is directly contradicted by the video footage of the detainees being taken out of their cells to be transferred to Holtze. Each boy was handcuffed in front and shows no sign of discomfort. They were escorted in an upright position with one guard on each side. They were not subjected to any rough treatment and showed no obvious signs of discomfort.
That causes me to doubt KW’s credit on other matters.
Further both LO and KW were adamant that during the escape on 2 August they did not threaten the YJOs with the weight poles they had taken from the gym. The CCTV footage of that incident shows otherwise.
EA was more forthright. He admitted that the escapees had threatened guards on the night of the escape. Nevertheless, I consider that he consistently minimised his own misconduct and exaggerated what he said was done to him. I accept that he considered that he had been unfairly treated, for example, on 6 April 2015 (discussed below) but consider that he had little insight into his own behaviour and how it affected others, specifically the YJOs.
Events on the night of 21 August 2014
The broad outline of what occurred at Don Dale on 21 August 2014 is not in dispute. The BMU was occupied by six detainees. The first cell was vacant. KW and LO were in the second cell, Jake Roper was in the third cell, EA and JB were in the fourth cell, and another detainee (not involved in this proceeding) was in the final cell.
Some time on 21 August 2014, Jake Roper, EA and JB covered up the CCTV cameras in their cells with toilet paper. One or more of them yelled out to the other detainees in the BMU to do the same. LO and KW did not follow their example. Later, the BMU detainees were given their dinner in their cells. JB and EA said they were not going to give their dinner plates back. (These are made of hard plastic, relatively easily broken, and under the rules of Don Dale all plates and eating utensils must be returned after each meal.)[11]
One of the detainees said something like, “Fuck ‘em. Let’s just run amok,” and all the detainees except LO and KW did just that. They started kicking the doors and yelling out things like, “Fuck you. You are fucking us around.” They broke their lights and removed the metal brackets for use as improvised weapons. EA and JB smashed a hole in the metal mesh on their door making a hole about the size of a soccer ball. They used the metal bracket from their broken light to chip bits of render from the wall and throw them at staff entering the BMU.
Just after 5.00 pm, Shift Supervisor (“SS”) Hansen telephoned AGM Sizeland and told him that the detainees accommodated in the BMU were misbehaving and throwing rocks or pieces of concrete at staff. AGM Sizeland does not appear to have been given any information distinguishing between those who were misbehaving (including EA, JB and Jake Roper) and those who were not (KW and LO). AGM Sizeland instructed SS Hansen to closely monitor the situation and give the detainees time to calm down.
Jake Roper also smashed a hole in the metal mesh on his door, put his hand through the hole, opened his door and got out into the exercise yard – effectively a narrow room or wide corridor outside the cells.
Once out of his cell, Jake Roper yelled out, ran around and used the metal bracket from his light to smash things. He smashed the window between the BMU and the admissions area, climbed through it and smashed a computer. Then he took a fire extinguisher and walkie talkie from the admissions area back into the BMU. He broke a window in the (locked) door leading into the basketball court and the window between the BMU and the storeroom. (He broke all available windows.) He also used the fire extinguisher to try to break the locks on the doors.
At about 7.45 pm, AGM Sizeland received another phone call, this time from Superintendent Caldwell who told him that the detainees in the BMU had not settled and were becoming increasingly aggressive and violent towards officers. At that AGM Sizeland decided to go to Don Dale. He contacted two YJOs and arranged to pick them up on his way to Don Dale. These officers worked regularly in the BMU and AGM Sizeland was of the opinion that they had good working relationships with the detainees and might be able to negotiate with them to de-escalate the situation.
AGM Sizeland and the two YJOs arrived at Don Dale at about 8.00 pm. When they arrived, SS Hansen told them that Jake Roper was out of his cell. AGM Sizeland tried to see what was happening but found it difficult. By this time the two small windows on the doorway from the corridor into the BMU had been broken, Jake Roper was throwing and poking things through those windows and it was too dangerous for AGM Sizeland to raise his head to the openings to get a better view of what was happening. Further, some of the cameras were covered or partly covered and he could not see much through them. However, he said that from what he could see, it appeared to him that some of the other detainees were also trying to break out of their cells.
AGM Sizeland could see that there was a lot of glass on the floor near the BMU entry door. He was concerned that the glass was a hazard to staff and detainees as it might be used as a weapon or cause accidental injury. He tried to remove the glass, using an old mattress to protect himself from the projectiles, but did not have much success.
AGM Sizeland said that as soon as Jake Roper saw him he went wild. He yelled words to the effect of, “I’ll fucken stab you, you white cunt.”
AGM Sizeland formed the view that his presence was aggravating Jake Roper and withdrew. He instructed YJO Kelleher (one of the YJOs he had picked up on the way to Don Dale) to speak to Jake Roper through the door. YJO Kelleher did try to speak to Jake Roper and try to calm him down, but Roper kept yelling abuse, throwing objects around the BMU and hitting the doors with the fire extinguisher. The CCTV and Handycam footage taken during this time shows Jake Roper moving around the room in an agitated manner, yelling and smashing things.
YJO Kelleher asked Jake Roper to let him go into the BMU to pick up the glass from the floor. Jake Roper responded by throwing things at the door and YJO Kelleher was unable to go in. This went on for some time. AGM Sizeland checked with YJO Kelleher from time to time and was told that there had been no progress.
It is necessary at this point to have some understanding of the layout of the BMU. The BMU is wide and rectangular in shape, and for the purpose of this explanation is assumed to be orientated north (in other words the top of the plan is north). The western side of the BMU comprises the five cells, with each door facing east. The easterly half of the BMU is the exercise yard. In about the middle of the eastern wall is a door leading to a corridor which leads into the dining room, and after that to the maximum security area. (It was from behind that door that YJO Kelleher was trying to talk to Jake Roper.) North of this corridor is a row of windows, behind which is the admissions area. North of the admissions area is a door to the security lounge. In the north-east corner of the exercise yard (next to the door into the security lounge) is a shower with a low wall on one of its other two sides. The northern wall is comprised of a row of windows, behind which is a storeroom. The southern wall has a door in the eastern corner which leads to the basketball court. This door was kept locked.
AGM Sizeland directed YJOs to go to each of the potential exit points. He deposed that his reasons for doing so were:
(a)to detain Jake Roper and prevent him from escaping further;
(b)to minimise Jake Roper’s access to further objects which could be used as improvised weapons; and
(c)to minimise the safety risk to Jake Roper. (He said he was particularly concerned that if Jake Roper tried to climb through the window into the storeroom he could be severely injured by dropping from the window onto the concrete floor 1.8 metres below which was covered in broken glass. Jake Roper had access to thongs but no shoes.)[12]
At some point, Jake Roper put some bedding over the broken glass in the window into the storeroom and tried to climb through. One of the YJOs in the storeroom used what appeared to be a broom to push him back.
In the meantime, Superintendent Caldwell had notified Commissioner Middlebrook what was happening. Commissioner Middlebrook left his Rotary meeting and headed for Don Dale. Before going, he put in a call to Grant Ballantine who was the acting general manager of Berrimah and asked him to mobilise some trained members of the Immediate Action Team (“IAT”) as well as a dog handler and one of the general purpose dogs. Commissioner Middlebrook said that the reason he asked for the Corrections dog to be deployed was that only weeks before these five young men had escaped from Don Dale. They had made it very clear to staff that the fence was a weakness and that if they had the opportunity they were going to go again. His intention was to put the dog on the fence line in order to have greater security if anybody got out of the contained area.
The IAT officers from Berrimah (POs Flavell, Lovegrove and Phillips) arrived at Don Dale at about 8.30 pm. They were equipped with masks, helmets, protective vests, shields and batons. Their equipment bags also contained aerosol canisters of CS gas.
AGM Sizeland asked them to remove the broken glass that had come through into the corridor. While that was being done, two officers held their shields up to the broken windows to stop projectiles coming through. This was not completely successful. As the IAT officers were trying to remove the glass, Jake Roper directed the fire extinguisher nozzle through the broken window and discharged the dry powder extinguisher at the IAT officers. This impeded their vision and caused at least one of the IAT officers some difficulty in breathing.
When Commissioner Middlebrook arrived at Don Dale he could hear the detainees in the maximum security section of Don Dale kicking and banging on their doors and yelling out. It was obvious to him that the incident was inciting a number of the young people who were housed in the maximum security block. He said that his biggest concern that night, when he entered the facility, was that those young people in the maximum security area might breach their doors and get out. He explained that Don Dale was built to domestic, not prison, standards. (That includes the doors other than those to the cells in the BMU.) He expressed the strong view that Don Dale was “really beyond its life fit for purpose”.
He explained further that over a period of time before this incident, some of the young people involved in the incident had been involved in pulling the central air-conditioning cassettes from the ceiling and getting into the ceiling, doing a lot of damage in the process. As well as the possibility of a mass escape should the high security detainees manage to get out of their rooms, the prospect of a fire in the centre was a major concern. Commissioner Middlebrook said that if substantial damage had been done to the facility, it could have rendered Don Dale inoperable and he did not have anywhere to relocate 30-odd detainees and house them within a short period of time. He said it was a critical situation and when he walked through the centre that night, it was escalating.
Because of these concerns, Commissioner Middlebrook said he realised that he had to bring the situation to a close quickly.
When Commissioner Middlebrook arrived at Don Dale, Superintendent Caldwell escorted him to the dining area at the other end of the corridor leading into the BMU. (The maximum security area where other high security detainees were kicking and banging on doors and yelling out was on the other side of the dining area.) Once there, AGM Sizeland and Superintendent Caldwell briefed him on what had been happening. They told him that one of the YJOs had failed to secure the door of Jake Roper’s cell correctly and, as a result, he was able to make a hole through the mesh, put his hand out and open the door. They told him that Jake Roper had smashed the windows into the admissions area and the storeroom windows and was throwing the glass and other objects at the YJOs when they tried to talk to him, and that he had also discharged the dry powder fire extinguisher at the YJOs.

AGM Sizeland also told him that some of the detainees in the other cells in the BMU had damaged light fittings and light switches which added a concern that if they had caused damage to the electrical system, they could end up in the dark and required to deal with the situation with torches. At some point in the evening, before the CS gas was deployed, the fire alarm went off adding to the noise of the detainees’ yelling and banging. It was eventually deactivated.
Commissioner Middlebrook was told that YJOs had tried to talk Jake Roper down from the situation but that each time they opened the door to try and communicate with him, he threw objects at them - sometimes glass, sometimes other objects that he had - and that one YJO had received a nasty cut to his shoulder. Standing in the hallway Commissioner Middlebrook witnessed some of the YJOs trying to communicate with Jake Roper and saw Jake Roper swinging a metal object and throwing things at the YJOs. He also saw the YJOs try to open the door and recover debris that had been thrown and which was close to the door space, but on each occasion they did that, Jake Roper threw more debris.
Once he had received the briefing from AGM Sizeland and Superintendent Caldwell, and had made those observations, Commissioner Middlebrook suggested taking the dog into the BMU through the door from the basketball court. The idea was to take the dog around to the basketball court door, open that door, and distract Jake Roper with the dog, hoping he would retreat to the other end of the room so that the IAT officers could safely go into the room through the door from the corridor and grab hold of him.
Unfortunately, the plan did not work. The lock on the door from the basketball court had been damaged (it appears by Jake Roper bashing it with the fire extinguisher) and they couldn’t get the door open.
Commissioner Middlebrook explained that he did not consider that the IAT officers could safely have gone into the room to tackle Jake Roper unless he was first distracted by the dog. There was room for only one officer to get through the door at a time and despite their having shields there was a chance they could have been injured by flying glass, the metal bar Jake Roper was wielding, or the heavy fire extinguisher he had been using to smash doors and to discharge onto corrections officers through the door. In addition, the speed with which they would have moved in to tackle Jake Roper in the circumstances made it highly likely that Jake Roper himself would sustain serious injury. There would have been concrete walls, a concrete floor covered in glass and other debris, and sizeable corrections officers dressed in protective equipment rushing at Jake Roper. Commissioner Middlebrook considered that, should that occur, there was every chance that somebody could have been injured, probably Jake Roper.
When they were unable to deploy the dog, AGM Sizeland suggested to Commissioner Middlebrook that they consider using CS gas. Commissioner Middlebrook asked the IAT officers whether they had CS gas and asked them what form of gas they had because there are various ways that CS gas can be deployed. The IAT officers told Commissioner Middlebrook that they had aerosols and Commissioner Middlebrook was satisfied that that was the best and least dangerous or harmful method he had at the time to defuse the situation. (He explained that the advantage of the aerosol is that it is operator controlled, unlike one of the alternative delivery methods in which a button is pushed and the whole canister empties. He explained further that operators are trained in how much gas to use when controlling the canisters.) Commissioner Middlebrook said he was satisfied that the training the officer had received would have had him deploy only the amount of gas that was
actually necessary.[13] Accordingly, he authorised the officers to deploy the CS gas into the BMU.
Commissioner Middlebrook said that when he made the decision to deploy the CS gas, it was obvious to him that talking to Jake Roper wasn’t working. He was not listening, he was not talking to the officers, and each time they opened the door he threw another missile.
AGM Sizeland gave similar evidence. He said he made the following assessment of the situation.
(a)Jake Roper’s behaviour had escalated rather than deescalating with the arrival of the IAT officers.
(b)“Verbalisation and negotiation” had been attempted and had been totally ineffective. YJO Kelleher in particular had spent a long time trying to engage with Jake Roper. During that time Jake Roper had consistently shown that he did not want to and would not speak calmly and reasonably to staff.
(c)Low level physical force could not be applied because access to the BMU could not be safely achieved by the prison officers. They could only go in one at a time and there was a risk that they would be injured by Jake Roper or by EA or JB should the officers be forced to approach their cell to get hold of Jake Roper. (EA and JB had access to long metal brackets from the lights they had broken which could be poked with force through the hole they had made on their cell door, and they had been throwing concrete out of their cell.)
(d)Based on what he had observed of their behaviour that evening and on his knowledge of their past behaviour from IOMS reports of earlier incidents, he had formed the view that if they were given an opportunity, there was a high risk that detainees Jake Roper, EA and JB would assault staff and he believed they would not hesitate to cause serious injury. (He later admitted in cross-examination that to that point JB did not have a history of assaulting staff or detainees as EA and Jake Roper had.)
(e)If the IAT went in with their shields and batons there was a risk that they could be injured for the above reasons and also a risk that Jake Roper would be seriously injured if he refused to surrender and the IAT were forced to use their batons.
(f)Jake Roper had discharged a powder fire extinguisher in the confined space of the BMU, affecting visibility and posing a risk to the health of the other detainees.
It was on the basis of that assessment that AGM Sizeland recommended to Commissioner Middlebrook that CS gas be used. He said he had considered the options and determined that the least use of force that could be applied in the circumstances to deal with the emergency situation and to prevent injury and harm to the detainees and to staff, was to deploy CS gas.
AGM Sizeland said he had been exposed to CS gas operationally and in training many times and his understanding was that it does not have long term effects. He formed the view that the temporary discomfort of the BMU occupants was preferable to the risk of serious and potentially lasting or permanent injury to Jake Roper and/or to staff, and that the dangers associated with the use of CS gas were less than any other action available.
The officers of the IAT present that evening, including PO Flavell, who ultimately deployed the gas, gave evidence to similar effect and said that they agreed with the decision to deploy the gas as the least dangerous option available.
Once Commissioner Middlebrook had authorised the use of the CS gas, AGM Sizeland directed YJO Palu to position himself on the basketball court with a hose to be ready to wash down the detainees after they had been removed from the BMU as he knew they would need to be placed in fresh air and decontaminated with water to remove the residue of the gas from their skin. He also organised the staff into teams to go into the area to remove the detainees as soon as Jake Roper had been subdued.
AGM Sizeland called out to Jake Roper, “Get on the ground and surrender or gas will be deployed.” Jake Roper did not surrender at this point. Instead he forcefully pushed a large metal light fitting through the window of the door.
The evidence of EA, LO and KW as to the broad sweep of events did not differ in any substantial respect to that of Commissioner Middlebrook, AGM Sizeland and the IAT officers and YJOs to that point.
One point of difference is that EA and LO gave evidence that they heard Jake Roper say words to the effect of, “I give up,” when he heard the dog outside but none of the YJOs or the IAT heard any such thing. KW also said he saw Jake Roper go back into his cell at that point but this is contradicted by the video evidence that shows Jake Roper yelling and continuing to try to smash things with a metal bar after the dog was heard and indeed right up to the deployment of the gas. The composite video shows that when the dog first started barking, Jake Roper picked something up and threw it at the door, then picked up the fire extinguisher and moved towards the CCTV camera – ie towards the storeroom. I do not accept the evidence of the plaintiffs that Jake Roper said (at any point in the evening), “I give up,” or words to that effect.
After AGM Sizeland said, “Get on the ground and surrender or gas will be deployed,” one of the IAT officers (PO Lovegrove) read out what has been referred to as “the proclamation” in these terms:
On the orders of the Officer in Charge of the Prison and the powers invested in me, you are ordered to stop your actions and do as I instruct you immediately. If you fail to do so, chemical agents and physical control will be used to restore the security and good order of the Prison.
Jake Roper did not comply. He yelled, “Come and get me dog cunts.”
After the proclamation was read and Jake Roper did not become compliant, PO Flavell deployed the CS gas into the BMU. He directed three short bursts of gas (less than one second each) into the BMU through the broken window, in the hope that Jake Roper would become compliant with that minimal amount of gas. That did not occur. Jake Roper continued swearing and moving around the exercise yard in an agitated manner. After a short wait, PO Flavell directed another two-second burst of gas into the BMU.
PO Flavell waited for approximately one minute to see if Jake Roper would comply but he could hear him still hitting objects against the wall and yelling abuse. He therefore discharged about six further “extremely short” bursts of gas into the BMU, an amount he considered, on the basis of his training, to be appropriate for the space into which it was deployed.
After the last burst Jake Roper came within sight of the officers behind the door and lay on the ground. (It appears he dragged a mattress out of his cell first and lay on that.) When he did that, IAT members POs Flavell and Lovegrove entered the BMU wearing gas masks, handcuffed Jake Roper and quickly took him to the basketball court to be decontaminated.
As soon as Jake Roper had been secured, AGM Sizeland entered the BMU (without a gas mask) and unlocked the cells, and the IAT officers and YJOs went in and took the other detainees out of the BMU and onto the basketball court, cell by cell, for decontamination. (The IAT officers had gasmasks. The YJOs did not.)
There is some uncertainty surrounding how long it took to remove the plaintiffs from their cells in the BMU. The plaintiffs estimate that LO and KW were exposed to the gas for six minutes 38 seconds and that EA and JB were exposed to the gas for five minutes and 20 seconds. As I understand it these times are from the first discharge of the gas into the BMU. The plaintiffs’ estimated time of exposure for LO and KW was taken from the camera in their cell and was the total time during which they were under a blanket at the far end of the cell. However, there is no evidence of what concentration of gas (if any) reached their cell before they took this very sensible precaution.
The defendant estimates that from the first spray of CS gas it took two minutes 41 seconds for Jake Roper to be taken out, between four minutes 31 seconds and four minutes 39 seconds for EA and JB to be taken out, and between five minutes 53 seconds and five minutes 55 seconds for LO and KW to be taken out. (These estimates are taken from the composite video.) Defence counsel pointed out that the first and second sprays had no discernible effect on Jake Roper (who was closer to the gas than the plaintiffs); it would have taken some time for the gas to reach the cells; and PO Flavell waited a minute before discharging the third lot of bursts. The defendant estimated that from the time of the last spray it took one minute and eight seconds to remove Jake Roper, between two minutes 58 seconds to three minutes and six seconds to remove EA and JB and between four minutes 20 seconds to four minutes 22 seconds to remove LO and KW.
It is not necessary for me to make any determination about this. The evidence was that the IAT officers and YJOs took the detainees out of their cells as quickly as they could consistent with maintaining security, and even if they could have done it more quickly the plaintiffs are not suing the defendant for failure to remove them more quickly, and do not allege that they suffered any long term ill effects from their exposure to the CS gas.
Commissioner Middlebrook gave evidence that the IAT officers and YJOs moved in teams, starting from the end the gas was deployed, and moved down the BMU to get the detainees out of the cells “very quickly”. The evidence of Commissioner Middlebrook was that they had to take the detainees out in groups and not all at once for security reasons because they did not know how the detainees would react and the detainees were not handcuffed in their cells. The IAT officers and YJOs had to bring them out in pairs to ensure the safety of the staff and of the detainees. That takes time and he did not consider they took an unreasonable period of time to get the detainees out.
Commissioner Middlebrook also gave evidence that very soon after the last detainee was removed, he went into the BMU to inspect the damage to the cells and didn’t have any adverse effect from the gas residue that was there. (He estimated that was about 10 to 12 minutes after the gas was first put into the BMU on the assumption that it took eight minutes from that time to get the detainees out.)
When they were taken out of their cells, the detainees were handcuffed behind their backs, taken onto the basketball court, made to lie on their stomachs and washed down with a hose. They were then taken, still handcuffed, to Berrimah.
The claim for damages for battery as a result of exposure to CS gas
The first claim made by each of the four plaintiffs is a claim for damages for battery as the result of being intentionally exposed to CS gas on the night of 21 August 2014. The defendant admits that the plaintiffs were exposed to the CS gas but says that it was reasonable and necessary in the circumstances. The plaintiffs plead in their replies that it was not reasonable or necessary because:
(a)the plaintiffs were minors;
(b)they were confined in their cells when the CS gas was deployed;
(c)the use of an article to deploy CS gas at Don Dale, a youth detention centre, was an offence against the Weapons Control Act 2001 (NT);
(d)two of the plaintiffs, LO and EA, suffered from asthma; and
(e)the defendant had alternative options available to it that were less forceful and less traumatising to the plaintiffs including listening to the detainees complaints about their conditions and/or taking steps to address those conditions. (It is pleaded that the plaintiffs and other detainees were protesting about the conditions of their confinement and wanted to know how much longer they would be kept in the BMU.)
The onus is on the defendant to establish that it was reasonable and necessary to expose the plaintiffs to the CS gas in the circumstances.
(a)Was use of the CS gas an offence under the Weapons Control Act?
It is convenient to first deal with the plaintiffs’ contention that use of the CS gas at Don Dale was an offence under the Weapons Control Act.
The plaintiffs’ first contention is that an item used to deploy CS gas is a prohibited weapon for the purposes of the Weapons Control Act and that the exemption in that Act permitting the use of such a weapon by a prison officer in the course of his or her duties does not extend to its use within a youth detention centre.
Schedule 2 Item 18 of the Weapons Control Regulations 2001 (NT) (as it was on 21 August 2014) includes within the definition of “prohibited weapon”: “an article designed or adapted to emit or discharge an offensive, noxious or irritant liquid, powder, gas or chemical so as to cause disability, incapacity or harm to another person”. It is common ground that the canister used by PO Flavell to deploy the CS gas into the BMU on 21 August 2014 fits within that definition.
Section 6(e) of the Weapons Control Act provides that a person must not possess, use or carry a prohibited weapon unless permitted to do so by an exemption under s 12. Section 12(2) provides (relevantly) that s 6 does not apply to a prescribed person acting in the course of his duties as a prescribed person in respect of a prohibited weapon that is supplied to him by his employer for the performance of his duties as a prescribed person. Under s 12(1) a prison officer is a prescribed person for the purpose of s 12(2).
The plaintiffs submit that in order to ascertain the scope of a prison officer’s relevant powers and duties, one must go to the relevant provisions of the Prisons (Correctional Services) Act 1980 (NT) (in force at that time). Section 62(2) of that Act provides that a prison officer may possess and use in a prison or police prison such weapons as are approved by the Director as necessary to maintain the security and good order of a prisoner or a prison or police prison.
The plaintiffs contend that the authority to use the weapons conferred by s 62 is limited to prisons or police prisons and does not extend to use in a youth detention centre. It is common ground that at the relevant time Don Dale was a youth detention centre and not a prison or police prison. There is no equivalent to s 62 of the Prisons (Correctional Services) Act in the Youth Justice Act 2005 (NT) which governs youth detention centres and the plaintiffs submit that, as a consequence, CS gas is not authorised for use in a youth detention centre at all.
The defendant contends that s 62 of the Prisons (Correctional Services) Act is irrelevant. PO Flavell, the IAT officer who deployed the CS gas on 21 August 2014, was an officer appointed under s 8 of the Prisons (Correctional Services) Act. It follows that he was a prescribed person under s 12(1)(a) of the Weapons Control Act. It is not disputed that the CS gas was supplied to PO Flavell for the performance of his duties, so the defendant contends that the real question is whether he was “acting in the course of his duties” when he deployed the gas. In order to engage the exception under s 12(2), it is not necessary for the officer to be authorised by another enactment, or even in writing.
The defendant submits further that the expression “in the course of his duties” as it appears in s 12 of the Weapons Control Act should not be interpreted narrowly. The exemption in s 12(2) applies whenever the prison officer is doing something which can fairly and reasonably be regarded, given the existing circumstances, as carrying out his duty.[14]
The defendant contends that s 62(2) of the Prisons (Correctional Services) Act, is permissive and does not purport to place a limitation on the general exemption in s 12(2) of the Weapons Control Act.
Youth Justice Act s 157(2) (as it was in force at the relevant time) provides that a prison officer called upon by the superintendent of a detention centre to assist in an emergency situation is taken to have the delegated powers of the superintendent necessary to perform the superintendent’s functions under s 151(3)(c). Section 151(3)(c) imposes a duty on the superintendent to maintain order and ensure the safe custody and protection of all persons who are within the precincts of a detention centre, whether as detainees or otherwise. Section 152(1) provides that the superintendent of a detention centre has the powers that are necessary or convenient for the performance of his or her functions.

The defendant contends that the prison officers who attended Don Dale on 21 August 2014 did so pursuant to a request made under s 157(2) of the Youth Justice Act by or on behalf of Superintendent Caldwell. By that request and the direction from their superior to attend, they were acting in the course of their duties. Further, the combined effect of ss 157(2), 151(3)(c) and 152(1) is that in carrying out those duties they had the powers necessary or convenient for the performance of the duty of maintaining order and ensuring the safe custody of detainees and the safety and protection of detainees and others at Don Dale. That is a sufficient basis for the exemption under s 12(2) of the Weapons Control Act to be engaged, and there is no need to look to s 62(2) of the Prisons (Correctional Services) Act for the source of their authority to use the CS gas. The defendant points out that there is nothing in the Youth Justice Act that prohibits a prison officer called out under s 157(2) from using a weapon.
The plaintiffs counter that s 12(2) of the Weapons Control Act does not apply whenever a prison officer is “acting in the course of his duties”. The exemption applies only when a prison officer is “acting in the course of his duties as a prescribed person in respect of a prohibited weapon that is supplied to him by his employer for the performance of his duties as a prescribed person”. Counsel for the plaintiff submitted that all of those words must be taken into account when understanding the effect of s 12(2) and that, effectively, the question posed by the section is: ‘What are the prescribed person’s duties in respect of a prohibited weapon?’ That question, the plaintiffs contend, is answered by s 62(2) which, as a specific provision must over-ride the more general provision in s 12(2) of the Weapons Control Act.
The plaintiffs’ analysis depends on the correctness of the starting assumption that the exemption in s 12(2) is not a general one, but applies only to a subset of a prescribed person’s duties, namely those duties “in respect of controlled weapons”. I do not agree that that is the effect of s 12(2). The subsection provides:
(2)Sections 6 and 9 do not apply to a prescribed person acting in the course of his or her duties as a prescribed person in respect of a prohibited weapon or body armour that:
(a)is supplied to him or her by his or her employer for the performance of his or her duties as a prescribed person [emphasis by underlining added]
In my view, the phrase “in respect of a prescribed weapon” does not qualify or limit the scope of the duties in relation to which the exemption applies; rather it qualifies or limits the class of prohibited weapon to which the exemption applies. The exemption only applies in respect of a prohibited weapon that is supplied to the prison officer by his employer for the performance of his duties as a prison officer. In respect of such a weapon, the exemption applies to a prison officer acting in the course of his duties – whatever those duties may be. It follows that the defendant’s contentions must be accepted.
In this case, the prison officer who deployed the CS gas was acting in the course of his duties having been called upon to assist in an emergency situation at Don Dale under s 157(2) of the Youth Justice Act and directed by the Commissioner to deploy the gas. Therefore the exemption under s 12(2) was engaged and he was not prohibited from using the CS gas by s 6 of the Weapons Control Act. Further, he had delegated to him all powers necessary or convenient to ensuring the safe custody of detainees and the safety and protection of detainees and others in the detention centre and there is no need to look to s 62(2) of the Prisons (Correctional Services) Act (which authorises the use of weapons within prisons and police prisons) for any further source of power.
Therefore, the use of the canister to deploy the CS gas at Don Dale on 21 August 2014 was not an offence under the Weapons Control Act.
(b)Were the prison officers lawfully called upon to assist under Youth Justice Act s 157(2)?
The plaintiffs’ second contention is that the defendant cannot rely on the provisions of s 157(2) of the Youth Justice Act because there is no evidence that the superintendent of Don Dale, Mr Caldwell, had called upon the prison officers (including PO Flavell) to assist. The plaintiffs point out that Superintendent Caldwell was not called to give evidence.
This is a highly technical argument. Youth Justice Act s 157(2) provides, that a prison officer called upon by the superintendent to assist in an emergency situation is taken to have been delegated all the powers of the superintendent necessary to perform the superintendent’s functions under s 151(3)(c). Sub-section 151(3)(c) provides that the superintendent of a detention centre must maintain order and ensure the safe custody and protection of all persons who are within the precincts of the detention centre, whether as detainees or otherwise.
The plaintiffs submit that there is no evidence that Superintendent Caldwell called on the prison officers to assist and that they got their orders to attend from a senior officer at Berrimah, Senior Officer Lollias.
That submission ignores other evidence of what occurred that evening. The evidence of Commissioner Middlebrook is that Superintendent Caldwell, called him and told him what was occurring. On receipt of that call, Commissioner Middlebrook telephoned Grant Ballantine who was the acting general manager of Berrimah and asked him to mobilise some trained members of the IAT as well as a dog handler and one of the general purpose dogs. The Acting General Manager of Berrimah then presumably passed this on through Senior Officer Lollias, and the prison officers from the IAT duly arrived at Don Dale where both Commissioner Middlebrook and Superintendent Caldwell were present. The evidence was that operations were generally directed by AGM Sizeland, but that both the superintendent and Commissioner Middlebrook were present and consulted. So far as the actual deployment of the CS gas is concerned, the evidence (from both AGM Sizeland and Commissioner Middlebrook) is that AGM Sizeland recommended its use and Commissioner Middlebrook authorised it. AGM Sizeland further gave evidence that Superintendent Caldwell said he agreed with that decision.[15]
In my view this is ample evidence that the superintendent had called upon the prison officers in question to assist in what was unquestionably an emergency. To insist that there must be evidence that the first order to the officers in question must have come directly from the superintendent before the provisions of s 157(2) are engaged, is to my mind absurd.
The plaintiffs further contend that s 157(2) only gave the prison officers the powers of the superintendent and since the superintendent did not have the power to use CS gas (not being a prescribed person under the Weapons Control Act) s 157(2) could not operate to give the prison officers the power to do so. I disagree. This contention fails to take into account the purpose of s 157(2). There are some things that prison officers can do that YJOs cannot – either because they lack the necessary skills or the necessary powers. The purpose of s 157(2) is to enable the superintendent of a youth detention centre to call upon those skills or powers should the need arise.[16] Once the prison officers were called upon under that sub-section, they were acting within the scope of their duties as prison officers and the exemption under s 12 of the Weapons Control Act applied to them. Thereafter, they had all of the powers necessary or convenient to maintain order and ensure the safe custody and protection of all persons in the detention centre and an exemption under s 12(2) of the Weapons Control Act in relation to the use of the gas canister, which was a weapon issued to them for use in the course of their duties as prison officers.
At one point, counsel for the plaintiffs appears to have contended that s 157(2) could not have been called into play because there was no evidence that there was an emergency. The contention was based on the fact that at some point one of the YJOs had “called a code amber” and that this was not a code for “emergency” but a code meaning that an officer was in need of assistance. The point was also made that, as there was no evidence from Superintendent Caldwell, there was no evidence that he considered there to have been an emergency. In my view, the “code amber” has nothing to do with it. There is ample objective evidence that there was an emergency situation at Don Dale that night, and the fact that the superintendent called the Commissioner of Corrections away from his Rotary meeting to attend is ample evidence that he considered it was an emergency situation.
Counsel for the plaintiffs also relied on Youth Justice Act s 153(3). Section 153 deals with the powers of the superintendent for the purpose of maintaining discipline. Sub-section 153(1) provides that the superintendent of a detention centre must maintain discipline at the detention centre. Sub-section 153(2) provides that for subsection (1), the superintendent may use the force that is reasonably necessary in the circumstances. Sub-section 153(2) is subject to s 153(3) which provides that reasonably necessary force does not include a number of things including “enforced dosing with a medicine, drug or other substance”.
I doubt whether the use of CS gas would amount to “enforced dosing” which seems to me to be more apt to refer to the administration of a drug or other substance to an individual directly. However, be that as it may, in my view the use of CS gas on the occasion in question was not covered by s 153, but by the more general power in s 151(3)(c). In Edwards v Tasker,[17] Barr J held that s 153(3) is only concerned with the use of force to maintain discipline;[18] that the superintendent of a youth detention centre has a separate obligation under s 151(3) to ensure the safe custody and protection of all persons who are within the precincts of the detention centre; and under s 152(1) the superintendent has the powers that are necessary or convenient for the performance of his functions.[19] The limitations on the use of force contained in s 153(3) do not apply to the powers of the superintendent under s 152(1). With respect, that is plainly correct.
Counsel for the plaintiffs submitted that the concept of maintaining discipline was a broad one encompassing all aspects of maintaining good order in the detention centre; that if the actions of the officers in question could be categorised as being for this purpose, the limitations on the use of force in s 153(3) applied; and that what was done on the night of 21 August 2014 was clearly aimed at maintaining good order in the detention centre. I disagree. While there may well be an overlap in some situations between actions which are done for the purpose of maintaining discipline and actions which are done for the purpose of ensuring the safe custody of detainees and others in the centre, in my view, s 153(3) was not intended to limit the powers of the superintendent for the purpose of ensuring the safety of detainees, staff and others (and the safe custody of detainees) in situations where there might also be an element of maintaining discipline. For one thing, the functions of the superintendent set out in s 151(3)(c) are not limited to ensuring the safety of people in the detention centre: that section includes a duty to “maintain order”. It is clear that on the night of 21 August 2014, the superintendent and other officers present were concerned with maintaining order and ensuring the safety of detainees and staff and ensuring that Jake Roper and others did not escape (ie ensuring their safe custody).
Accordingly, pursuant to s 152(1) the superintendent had all the power necessary or convenient for the purpose, not limited by s 153(3), and the prison officers were lawfully called upon to assist under Youth Justice Act s 157(2).
(c)Was it reasonable and necessary to deploy the CS gas?
The plaintiffs plead that it was not reasonable or necessary to use the gas because the plaintiffs and the other detainees were minors. However there was no evidence that CS gas has a different or more harmful effect on young people than on adults. (The detainees were aged between 15 and 17.) If the defendant can establish that it was otherwise reasonable and necessary to use the CS gas to ensure the safety of detainees and others (and the safe custody of the detainees), I do not think that the fact that the detainees were minors would render it unreasonable.
Another reason pleaded by the plaintiffs for saying that it was not reasonable to use the CS gas was that the plaintiffs were confined in their cells when the CS gas was deployed. Counsel for the plaintiffs placed emphasis on training material used in training prison officers in the use of gas. That material states that chemical agents should not be used if prisoners “are compliant or physically restrained” and where prisoners are “otherwise under control”. Counsel for the plaintiffs submitted that that meant it was not appropriate to use the gas on the plaintiffs who were restrained in their cells. (Further KW and LO were not in any sense being noncompliant.)
However, that is to misstate what occurred. The gas was not used on the detainees in their cells. It was deployed for the purpose of temporarily incapacitating Jake Roper so he could be taken back into safe custody. The officers concerned all gave evidence that they believed that temporary discomfort to the other detainees in the BMU was necessary to accomplish this in a way that avoided the risk of serious, perhaps long lasting or permanent injury to Jake Roper and/or the prison officers.
Again, if the defendant can establish that it was otherwise reasonable and necessary to use the CS gas to ensure the safety of detainees and others (and the safe custody of the detainees), I do not think that the fact that it was inevitable that the gas would also affect the detainees who were restrained in their cells would render it unreasonable. As AGM Sizeland and the expert engaged by the defendant, Mr Colin Kelaher (whose evidence is discussed in more detail below) pointed out, when gas is deployed it will often also necessarily affect other people who are either restrained or not non-compliant or both. An example given was a hostage situation where gas is deployed to temporarily incapacitate the hostage taker and rescue the hostage or hostages who will also, inevitably, be affected by the gas.
The plaintiffs also contend that it was not reasonable to deploy the gas without first checking whether any of the other detainees had asthma or any other medical condition which involved unacceptable risks in the use of CS gas. Again, counsel relied on training material which stated: “Officers must not use Chemical Agents on a prisoner when: … it is known by the officer(s) they have respiratory problems… or conditions which would make the use of chemical agents dangerous, unless necessary to prevent loss of life or serious bodily injury”.
There is evidence that LO and EA had suffered from asthma. EA deposed that YJOs were aware that he had asthma because they had given him Ventolin in the past. However, there is no evidence that anyone involved in the decision making that night had any knowledge that either LO or EA had suffered from asthma, and positive evidence to the contrary from AGM Sizeland who said he “knew all those boys fairly well and ... didn’t know any of them to have asthma”. PO Phillips, PO Flavell and YJO Ross were also asked whether they knew that LO and EA suffered from asthma. Each of them said they had no such knowledge. PO Flavell agreed in cross-examination that officers using gas had to be aware of the physical health of detainees in terms of any of them having breathing difficulties.
The plaintiffs contend that those making the decision should have looked at the medical records of the detainees to see if any of them suffered from asthma before deploying the gas. Counsel for the plaintiffs submitted that “the obvious risks” of such use were too great to do otherwise.
Counsel for the defendant pointed out that there was no evidence of what risks were entailed and also that the training material states that medical records should be checked if possible. Mr McLure SC submitted that given the crisis that was occurring on 21 August 2014, there was simply no time to check medical records in a way that would have yielded a different result.
The defendant engaged an independent expert, Mr Colin Kelaher, to provide a report into the reasonableness of the various measures the subject of this proceeding. Mr Kelaher has worked in the corrective services sector for 33 years. He has been employed both by private operators of correctional facilities and state/territory corrections departments. Those roles have included as correctional officer, senior correctional officer, assistant superintendent, senior assistant superintendent, deputy superintendent and superintendent/governor/general manager. He was employed as an executive general manager for a private detention centre operator, in charge of overseeing his company’s operations in Australia and New Zealand. He was later the Assistant Commissioner of the north western region of New South Wales’ correctional facilities.
As prison governor Mr Kelaher was required to review any serious incidents involving the use of force between correctional officers and detainees to ensure that the actions taken were appropriate. As executive general manager he was also required to review incident reports and to report to the relevant state departments on whether or not the appropriate remedial action had been taken in situations between correctional officers and inmates.
Mr Kelaher expressed the opinion that in the circumstances he was asked to assume (which were essentially those outlined above), the use of CS gas was reasonable and necessary. He said, “Weighing up all of these scenarios and risks to all concerned, the most reasonable option was the deployment of the CS Gas”.
In cross-examination Mr Kelaher was asked whether he would still be of that view had he known that one or more of the detainees suffered from asthma. His answer was that he would still have deployed the gas but that he would probably have taken other steps afterward. He was not asked to elaborate, but one can infer that appropriate steps might have been to take special care to remove detainees with asthma first, take special care in decontaminating them, and to have Ventolin or other medication and/or medical assistance standing by. In the event, neither of the two detainees who had suffered from asthma suffered an asthma attack as a result of exposure to the gas and neither reported any residual effects to the nurse when examined after their transfer to Berrimah. Those plaintiffs do not allege or claim damages for ill effects associated with their asthma suffered as a result of their being exposed to the gas.
Given the urgency of the situation as it stood when the decision was made to deploy the gas (as described in evidence by Commissioner Middlebrook, AGM Sizeland and others) I do not think it is reasonable to expect that those in charge should have held up the decision to bring the matter to a close while they had someone search the detainees’ medical records.
Even if it could be said that they should have searched the medical records, if the use of the gas was reasonable and necessary in the circumstances, they effectively had no choice. All they could have done was to take additional precautions to get the detainees with a history of asthma out quickly and do the other things mentioned above. If the defendant can establish that it was reasonable and necessary to use the CS gas to ensure the safety of detainees and others (and the safe custody of the detainees), I do not think that the fact that they did not check the detainees’ medical records before doing so renders the decision unreasonable.

I find that the actions of the YJOs in ground stabilising EA and placing flexi-cuffs on him were reasonable and necessary in the circumstances. Those actions were justified as a measure of self-defence.
The Common Law has always recognised the right of a person to protect himself from attack and to act in the defence of others and if necessary to inflict violence on another in so doing. If no more force is used than is reasonable to repel the attack such force is not unlawful and no crime is committed. Furthermore a man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify a pre-emptive strike.[33]
Further, I find that those actions were authorised by ss 151(3)(c) and 152(1) of the Youth Justice Act.
I turn to consider the complaint that cutting off EA’s shorts amounted to a battery. EA said that the YJOs had cut his shorts off while he was on the ground, he didn’t have underwear on, and they carried him naked into his cell where they gave him the ‘at risk’ shorts. SS Ross deposed that he was the one who approved the provision of ‘at risk’ shorts but he cannot recall whether this occurred in the recreation yard or back in EA’s cell and he cannot recall how he was given the shorts. Given that the officers had had to ground stabilise EA and put handcuffs on him, and that he was refusing to walk to his cell, and also SS Ross’s expressed safety concerns about YJOs having to go into EA’s cell to carry out the ‘at risk’ procedure later, I consider it likely that the YJOs cut EA’s shorts off him in the recreation area and carried him to his cell naked as described by EA.
It was suggested to SS Ross in cross-examination that there were other detainees in the recreation yard when this occurred and that it was done to humiliate and punish EA. He emphatically denied both suggestions. He did agree that he didn’t fill out the appropriate report regarding placing a detainee ‘at risk’ and further agreed that he should have done so.
The defendant claims that it was reasonable and necessary in the circumstances to cut off EA’s shorts and give him the ‘at risk’ shorts. Mr Kelaher, the independent expert engaged by the defendant, expressed the following opinion.
I note the affidavit of Mr Ross … where he explains that he authorised the use of “at-risk” clothing for [EA]. I believe that Mr Ross’ explanation for authorising at-risk clothing is reasonable. I would place substantial weight on the assessment of someone like Mr Ross, who knew the detainees well and was in a position to observe [EA] up close. Based on my experience, I agree with Mr Ross’ opinion that attempts at self-harm often follow unsuccessful attempts at resistance and violence towards correctional officers.
Correctional officers in the circumstances of Mr Ross are required to balance competing adverse outcomes. The risk of doing nothing in these circumstances is that the detainee may take his own life. The risk of taking the “at-risk” procedure is that it is intrusive and may cause great distress. Having regard to the high occurrence of attempted suicide by young men in detention, especially indigenous men, I believe that if Mr Ross held a genuine concern that [EA] was a risk of self-harm, it was appropriate to remove clothing that he could use to hang himself and replace it with the specially designed clothing that cannot be used for that purpose.
Once again, I see no reason to disagree with this conclusion. Moreover, having read SS Ross’s affidavit and seen his responses to questions put to him in cross-examination, I accept that he did have a genuine concern that EA might harm himself. He didn’t necessarily think it likely that he would do so but he was concerned that he might, and thought it appropriate to guard against the possibility because of the enormity of the potential consequences. He had his own past experiences to guide him and had observed EA becoming increasingly non-compliant, violent and frustrated over the days before this incident. He believed that EA was running out of options to gain attention and that his next move was likely to be at least threats of self-harm which would have to be taken seriously – and which might possibly be carried out. (As it happened that belief materialised later that afternoon when EA threatened to kill himself if he could not be transferred to Holtze.) He further took into account the desirability of minimising the number of confrontations between EA and YJOs when deciding it would be better to give him the ‘at risk’ clothing at once, rather than wait. (Again, this appears in hindsight to have been a reasonable judgment call. If they had waited until EA made overt threats of self-harm, it is likely that YJOs would have had to deal with EA in a small cell littered with broken glass.)
I find that cutting off EA’s shorts and giving him ‘at risk’ shorts to wear was likewise necessary and reasonable in the circumstances.
On the claims for damages for assault and battery arising out of the incident on 6 April 2015, there will be judgment for the defendant.
Damages
(a)The claims on which the plaintiffs are entitled to damages
On the claim in relation to the treatment of EA, KW and JB on their way to the medical area at Berrimah on 22 August 2014, I have determined that there should be judgment for the plaintiffs for the acts of battery consisting of placing a spit hood on each of those plaintiffs, placing leg shackles on each of those plaintiffs and handcuffing each of those plaintiffs with their hands behind their backs, rather than in front. (I found that it would have been reasonable for the plaintiffs to have been handcuffed with their hands in front, but not with their hands behind their backs.)
On the claim in relation to the treatment of the plaintiffs on 25 August 2014, I have determined that there should be judgment for each the plaintiffs for the acts of battery consisting of placing a spit hood on each of the plaintiffs, and placing leg shackles on each of the plaintiffs.
(b)Does s 19 of the Personal Injuries (Liabilities And Damages) Act preclude an award of aggravated and exemplary damages
The plaintiffs have claimed general damages, aggravated and exemplary damages. As a preliminary point, the defendant argued that both aggravated and exemplary damages are precluded by s19 of the Personal Injuries (Liabilities and Damages) Act 2003 (NT). That section provides that a court must not award aggravated damages or exemplary damages in respect of a personal injury. “Personal injury” is defined in that Act in inclusive terms:
“personal injury” includes:
(a)a fatal injury;
(b)a prenatal injury;
(c)a psychological or psychiatric injury;
(d)a disease; and
(e)the aggravation, exacerbation or acceleration of a pre-existing injury.[34]
The defendant relied on New South Wales v Williamson[35] to support a submission that damages for battery were damages for personal injury. I do not think that that case is of very much assistance in the present circumstances. In New South Wales v Williamson the High Court considered the costs limiting provisions of Div 9 of Pt 3.2 of the Legal Profession Act 2004 (NSW) which applied if the amount recovered on “a claim for personal injury damages” did not exceed $100,000. The Court held that the limitation applied whether that claim was framed in negligence or as an intentional tort.
In that case, the legislation in question contained a definition of “personal injury damages” as “damages that relate to the death of or injury to a person”. The Court held (unsurprisingly) that that definition was apt to include any and every form of damages that relate to personal injury to a person whether that injury resulted from a failure to take reasonable care or the commission of an intentional act with intent to cause injury.[36] The legislation in question defined “injury” as “personal injury”, including “impairment of a person’s physical or mental condition”.[37] The Northern Territory Act contains no such definition. (See above.)
The majority judgment contained the following discussion which centred on the application of the statutory definition of “personal injury” and hinged on whether a claim for deprivation of liberty and accompanying loss of dignity and harm to reputation could be a “claim for personal injury damages”.[38]
The respondent sued the appellant for trespass to the person (alleging several instances of battery) and false imprisonment. He alleged that the batteries he had suffered had caused him personal injury, but it was far from clear that he alleged that the wrongful deprivation of his liberty had itself impaired his physical or his mental condition.
Often but not always, a battery will cause personal injury to the victim. False imprisonment is often accompanied by an assault and battery and the accompanying battery may (but need not) cause personal injury. There may be cases where an act of false imprisonment itself causes psychiatric, even physical injury. Even assuming, however, that the respondent did allege that the act of wrongful imprisonment (as distinct from the batteries he alleged he had suffered) had caused him some personal injury, the claim for false imprisonment was necessarily a claim for damages on account of the deprivation of liberty with any accompanying loss of dignity and harm to reputation. The deprivation of liberty (loss of dignity and harm to reputation) is not an "impairment of a person's physical or mental condition" or otherwise a form of "injury" within s 11 of the Liability Act. The claim for false imprisonment, at least to the extent to which it sought damages for deprivation of liberty, is not a "claim for personal injury damages".
The judgment entered in this matter in the District Court did not identify how the damages were computed or on what account they were allowed. On its face, the judgment was consistent with the allowance of damages only for the deprivation of liberty with no allowance for any impairment of the respondent's physical or mental condition. It is not possible to show that the sum which the respondent recovered was "recovered on a claim for personal injury damages". The costs limiting provisions of Div 9 of Pt 3.2 of the 2004 Legal Profession Act were thus not engaged.
It is important to note that s 19 of the Personal Injuries (Liabilities and Damages) Act prohibits an award of aggravated or exemplary damages “in respect of a personal injury”, not “in an action for personal injuries” or “a claim for personal injury damages” as in the statute under consideration in New South Wales v Williamson. Therefore, it is not a matter of categorising the proceeding as an action or claim for personal injuries. What must be done is to look at the damage in respect of which each plaintiff is to be awarded compensation by way of damages. If that damage or harm is properly characterised as a personal injury, then s 19 applies. Otherwise it does not. To answer this question, one must go to the pleadings, to the evidence and to the findings of fact set out above.
In relation to the assault and battery on 22 August 2014 each statement of claim pleads that by putting the shackles, spit mask and handcuffs on the plaintiffs, the defendant intentionally or recklessly caused the plaintiffs to apprehend an imminent fear of personal safety and an imminent fear of direct harm (assault)[39] and intentionally or recklessly caused harm to the plaintiffs without lawful justification or excuse (battery).[40] What that harm is, is not specified in that part of the pleading.
The pleading of damage[41] in each statement of claim does not differentiate among the various pleaded assaults and batteries. Excluding those which cannot possibly be relevant to the claims in which the plaintiffs have been successful (because of specific reference to particulars of claims in which I have found for the defendant) the damage alleged in each statement of claim is:
·extreme distress
·humiliation
·the immediate physical effects of being restrained by various restraint devices and holds including discomfort and pain.
It seems to me that in this case the damage which is alleged consisting of extreme distress and humiliation cannot possibly be categorised as “in respect of a personal injury”, however widely “personal injury” may be defined.
I turn to consider the claim for damages for “the immediate physical effects of being restrained by various restraint devices and holds including discomfort and pain”.
On the claim in relation to the treatment of EA, KW and JB on their way to the medical area at Berrimah on 22 August 2014 each of the three plaintiffs is entitled to damages for the wrongful acts of having a spit hood placed on him, having leg shackles placed on him, and being handcuffed with his hands behind his back, rather than in front. Looking at what the plaintiffs say they suffered as a result of these things:
·KW deposed that it made him feel like an animal to be walked to the medical area with handcuffs, shackles, spit mask and holding his arms behind his back – in front of everyone. He said it was humiliating.
·EA deposed that the experience made him feel scared, angry and shamed.
·JB did not give evidence.
None of them claim to have suffered any injury. They are therefore not entitled to any damages “in respect of personal injury”. Section 19 does not therefore apply, and I am not precluded from making an award for aggravated or exemplary damages in relation to this claim.
On the claim in relation to the treatment of the plaintiffs on 25 August 2014, each of the four plaintiffs is entitled to damages for the wrongful acts of having a spit hood placed on him and having leg shackles placed on him. Looking at what the plaintiffs say they suffered as a result of these things:
·EA deposed that he felt worried when the guards put him in all those restraints.
·KW deposed that he felt humiliated to be walked through Holtze in spit masks, shackles and handcuffs. He also said that he felt pain in his wrists and shoulders from being handcuffed too tightly and behind his back. The video evidence shows that he was not handcuffed in the way he complained of and no sign that he suffered any pain or discomfort as a result of being handcuffed. In those circumstances I have found it reasonable for him to have been handcuffed in the way he was, and he is not entitled to damages for that alleged pain and discomfort.
·LO did not give evidence about the effect of these things on him.
·JB did not give evidence at all.
The damages each of the plaintiffs is entitled to are for any additional distress, discomfort and humiliation they suffered as a result of being placed in spit hoods and shackles for the time they were walked from their cells to the transport area, were driven in the escort vehicle to Holtze, and walked across Holtze to the area in which they were to be accommodated. The level of physical discomfort evidenced by the video (which is not discernible) is not such as to amount to physical injury.
Again, none of the plaintiffs has been found to be entitled to any damages “in respect of personal injury”, and in relation to this claim too, s 19 does not apply to preclude an award of aggravated or exemplary damages.
(c)General damages
I consider first the claim for general damages for the treatment of EA, KW and JB on their way to the medical area at Berrimah on 22 August 2014, consisting of the wrongful application of spit hoods and shackles and the placement of handcuffs behind the body rather than in front.
In Majindi v Northern Territory[42] Mildren J awarded damages to the plaintiff against two police officers who had knowingly wrongfully arrested the plaintiff and held him under wrongful arrest for five hours 40 minutes. In addition, one of the officers committed a battery on the plaintiff by punching him in the head. The other committed a number of acts of battery on him by handcuffing him (behind his back), searching him (twice) and hitting him on the head with a batton. The defendants were found to have been guilty of conscious wrongdoing in contumelious disregard of the plaintiff’s rights and the plaintiff was awarded $35,000 against each defendant for wrongful imprisonment plus $15,000 aggravated damages and $40,000 exemplary damages.[43] For the acts of battery, the plaintiff was awarded $5,000 for the battery consisting of a punch to the head and $10,000 for the battery consisting of the hit with a batton, wrongful search and handcuffing.
In Makri v State of New South Wales[44] the District Court of New South Wales dismissed a claim for damages for assault and battery which consisted of an alleged wrongful application of handcuffs to a person who had admittedly been lawfully arrested but was later acquitted. (There was an admission that the handcuffs had been applied behind the plaintiff’s back.) The Court went on to assess the damages that would have been awarded if liability had been established as follows:
The plaintiff suffered no physical injury of the kind referred to by Diplock LJ in Cassell & Co Ltd v Broome [1972] UKHL 3; [1972] 2 WLR 645. He did not even suffer a bruise. He suffered at best mild discomfort which he relieved by rubbing his wrists. While the plaintiff gave evidence that he felt humiliated that handcuffs were applied and was uncomfortable sitting in the police van, I am satisfied that the real source of any discomfort and distress the plaintiff felt was in being arrested, detained and charged with the offence for which he was ultimately acquitted. Accordingly, I prefer the estimate given by the defendant and would award the sum of $3,000.
In this case, likewise, the plaintiffs have alleged no physical injury. Further, I have found that it was both reasonable and necessary for the plaintiffs to have been handcuffed. The wrong consists of handcuffing them behind their backs rather than in front. I do not consider that very much additional distress and humiliation would have been caused to the plaintiffs simply as a result of the wrongful placement of the handcuffs for the short time they were being walked from their cells in B Block to the medical centre and back again.
However, in addition to handcuffing the plaintiffs behind rather than in front, the defendant wrongfully applied shackles and a spit hood to each plaintiff. I have no doubt that this would have caused the plaintiffs considerable distress and humiliation, especially as youths being marched past adult prisoners – one of whom knew EA well and recognised him. The wrongful placing of the handcuffs behind the back would have added something to this humiliation and distress. (Despite EA’s evidence, I do not accept that it would have caused them fear. While I have no doubt that the plaintiffs were scared, it seems to me that that fear was generated by the situation the plaintiffs found themselves in – being incarcerated in an adult prison.)
In the circumstances, I assess general damages for each of EA, KW and JB on this claim at $5,000.
Next I consider the claim for general damages by all four plaintiffs for the wrongful placement of spit hoods and shackles for the transfer to Holtze on 25 August 2015. This claim is less serious than the claim on 22 August in one respect in that there is no finding that the plaintiffs were wrongly handcuffed behind their backs. On the other hand, the episode was of longer duration. The plaintiffs wore the shackles and spit hoods walking from their cells to the transport, in the transport to Holtze and while walking through Holtze to their accommodation. Balancing one against the other, I think that damages for this act of battery should likewise be assessed at $5,000 to each of the four plaintiffs.

It was suggested by the defendant that JB should be awarded less because he did not give evidence of having suffered any distress, discomfort or humiliation. I reject that submission. It seems to me that it is self-evident that wearing a spit hood and shackles would be a humiliating and distressing experience – especially for young people. I consider that each of the plaintiffs involved in each of the incidents should be awarded the same damages.
(d)Exemplary damages
Exemplary damages are available where there has been a conscious wrongdoing in contumelious disregard of another’s rights.[45] For an award of exemplary damages to be appropriate, the defendant’s conduct must merit punishment. It must have been knowingly malicious, violent, cruel, insolent, high handed or an abuse of power.[46]
I do not believe it is appropriate to award exemplary damages in this case. In my view, the conduct of the officers in taking what has been admitted to be unreasonable measures in placing the detainees in spit masks and shackles was not knowingly malicious, violent, cruel, insolent, high handed or an abuse of power or indeed knowingly wrongful at all. I do not believe that the officers concerned acted in conscious and contumelious disregard of the plaintiffs’ rights. In particular the video evidence of the officer’s conduct on 25 August 2014 shows no evidence of cruelty, malice, high-handedness or bullying. Both the officers and the plaintiffs were calm. The officers showed care and thoroughness checking the restraints, presumably to ensure both that they were securely fastened and also that they were not too tight. In my view, on both 22 August and 25 August the over use of restraints was an over-reaction to the violence and destruction perpetrated by some of the BMU detainees including EA and JB on 21 August and amounted to unnecessary precautions motivated by fear that the plaintiffs might escape again and/or a perception that they otherwise presented a high security risk.
(e)Aggravated damages
However, I do think that there should be an award of aggravated damages. “Aggravated damages” is a more amorphous concept than exemplary damages. Aggravated damages are awarded, not to punish a defendant, but to compensate a plaintiff for increased mental suffering due to the manner in which the defendant committed the wrong or thereafter, which may include the defendant’s conduct of the case before the court.[47] The limits for aggravated damages should not go beyond a proper solatium for the injured feelings and insults the plaintiffs have suffered.[48]
There is nothing in the defendant’s conduct of the case before the Court that caused additional mental suffering to the plaintiffs. The defendant quite properly admitted liability for battery by the unnecessary application of shackles and spit hoods, and was partly successful in its defence of the allegations surrounding the handcuffing of the plaintiffs on 22 August. (Although I found that the plaintiffs had been unnecessarily handcuffed behind their backs, I rejected their more extreme claims of mistreatment in the process.)
As I have stated above, this is not a case where the defendant or its agents acted cruelly, maliciously or in conscious disregard of the plaintiffs’ rights. However, in my view, the plaintiffs’ mental suffering was increased by the fact that they were youths in the care of the defendant and this excessive use of force with its attendant humiliation occurred in that context.
In particular, by 25 August 2014, those in authority in Corrections ought to have been in a position to know that KW and LO had not taken part in the riotous behaviour on 21 August and that (while they were justified in treating them as at risk of escape armed or unarmed) they had less reason to believe that KW and LO presented the kind of extreme security risk which the use of shackles suggests. Further, the mental suffering of LO and KW would have been increased by the sense of injustice they felt at being treated in the same way as EA and JB when they had taken no part in the destructive behaviour on 21 August.
I consider that in the case of EA and JB, an award of aggravated damages of $2,000 is appropriate. In the case of LO and KW, I consider that an award of aggravated damages of $7,000 is appropriate.
Summary
There will be judgment for the defendant on:
(a)the claim by all four plaintiffs for damages for battery arising out of the use of CS gas at Don Dale on 21 August 2014;
(b)the claim by all four plaintiffs for damages for assault as a result of the deployment of a dog and IAT officers at Don Dale on 21 August;
(c)the claim for damages for assault and battery by all four plaintiffs as a result of being handcuffed behind their backs while being transported from Don Dale to Berrimah;
(d)the claim by LO for damages for assault and battery at Berrimah on 23 August 2014,
(e)the claim by all four plaintiffs for damages for assault (as distinct from battery) as a result of being placed in shackles, spit hoods and handcuffs at Berrimah on 22 August;
(f)the claim by all four plaintiffs for damages for assault (as distinct from battery) as a result of being placed in shackles, spit hoods and handcuffs to travel to Holtze on 25 August;
(g)the claim by EA for damages for assault and battery arising out of the incident on 5 April 2015;
(h)the claim by EA for damages for assault and battery arising out of the incident on 6 April 2015.
There will be judgment for EA, JB and KW on the claim for damages for the acts of battery consisting of placing a spit hood on each of those plaintiffs, placing leg shackles on each of those plaintiffs and handcuffing each of those plaintiffs with their hands behind their backs, rather than in front on their way to the medical area at Berrimah on 22 August 2014.
There will be judgment for EA, JB, LO and KW on their claim for damages for the acts of battery consisting of placing a spit hood on each of those plaintiffs and placing leg shackles on each of those plaintiffs when travelling to Holtze on 25 August 2014.
Damages awarded:
EA      damages for battery on 22 August 2014               $ 5,000
damages for battery on 25 August 2014               $ 5,000
aggravated damages  $ 2,000
$12,000
JB       damages for battery on 22 August 2014               $ 5,000
damages for battery on 25 August 2014               $ 5,000
aggravated damages  $ 2,000
$12,000
KW     damages for battery on 22 August 2014               $ 5,000
damages for battery on 25 August 2014               $ 5,000
aggravated damages  $ 7,000
$17,000
LO      damages for battery on 25 August 2014               $ 5,000
aggravated damages  $ 7,000
$12,000

[1] For some of these offences, convictions were not recorded; for others they were. The same holds true for the other plaintiffs.

[2] on 2 August 2013 (offence date 24 March 2013) and 25 February 2014 (offence date 17 February 2014)

[3] EA admitted using the weight bars as weapons to keep staff away. He deposed: “We walked over into the corner and the workers started coming at us and we told them, “If you come closer, you are going to get hurt. All of us said that.” KW and LO denied threatening the officers with the bars even though the CCTV footage clearly shows LO advancing towards an officer holding up a metal bar and all four of them pleaded guilty to going armed with an offensive weapon during the escape.

[4] Sometimes they ate lunch outside the cells during their recreation periods which were taken two at a time.

[5] The evidence of one of the plaintiffs was that after being in the BMU a while they were permitted to play basketball during their recreation time.

[6] Apparently they did have access to playing cards. LO and KW were playing cards together in their cell while the other detainees were misbehaving on 21 August. KW also deposed to having a non-school book and a magazine. They could listen to the radio through the intercom system.

[7] Whether or not LO actually said this to a YJO, AGM Sizeland and Commissioner Middlebrook believed it to be true.

[8] This fear turned out to be well founded. EA and JB attempted to escape again on 14 September 2014.

[9] The full name of CS gas is o-chlorobenzylidene malononitrile

[10] There is no allegation that the plaintiffs were in fact sprayed with a fire extinguisher. However, Jake Roper discharged the dry powder fire extinguisher in the BMU exercise yard and it is possible that some of the chemical from the fire extinguisher got into the plaintiffs’ cells or that they were exposed in some way while being removed from the BMU after Jake Roper had been brought under control. (LO deposed that he had handcuffs placed on him while face down on the mattress Jake Roper had hauled out of his cell and that it had foam on it.)

[11] After the events that occurred later that day, officers found a hand made knife in one of the cells constructed from a broken dinner plate and pieces of cloth to protect the hand of the user.

[12] It was put to AGM Sizeland in cross examination that this was a low risk. He said that in his opinion, given the state Jake Roper was in, it was a high risk.

[13] On the handicam footage Commissioner Middlebrook is heard to say, “I don’t care how much gas you use.” In giving evidence he said: “Look, you know, that seems like a very callous comment that I made but I wasn’t talking to the IAT officers. I was responding to Mr Lording, the dog handler [who had asked whether or not it was proposed to ‘gas the lot of them’]. I knew that they had aerosol. I knew that the aerosol pack was a limited amount of gas. I knew that the officer who was going to deploy the gas was fully trained, and would have understood how much to actually use to bring Mr Roper under control. I also made sure, and what’s not captured on the handycam, is the fact that I made sure that the officers got the fire hoses rolled out ready to decontaminate the juveniles. And what else is not captured is the fact that we organised the staff into teams to go into that area to remove the juveniles. The other thing I was very mindful of is that only the IAT officers had personal protection and so the officer that deployed the gas fully understood that staff without that protective equipment were going to have to go in there and remove detainees as well.”

[14] DPP’s Reference 1993 (ACT) (1993) 71 A Crim R 115 at 120 [alternatively referred to as Re K (1993) 71 A Crim R 115]. See also DPP (NSW) v Gribble (2004) 151 A Crim R 256 at 262 [24], 263 [29]

[15] He said, “Yeah, OK,” or words to that effect.

[16] It was suggested to Commissioner Middlebrook in cross-examination that the prison officers were brought over because it was believed that, unlike YJOs, they had the relevant exemption and could use the CS gas. Commissioner Middlebrook denied that. He said the reason why the prison officers were brought in - and they were brought in from time to time when there was a problem – was because they were close and they responded quickly and they were far better trained than the YJOs were.

[17] (2014) 34 NTLR 115

[18] at 126 [33]

[19] At 126 [32]

[20] In re-examination AGM Sizeland said that in the earlier incident, the detainees had gotten to the roof space from their cells and they stayed up there pretty much the entire time. Even though they were breaching centre security they weren’t physically threatening, destroying property or arming themselves. They were simply being defiant staying up in the roof space for a period but there was no threat of assault and no apparent level of violence from those boys at that time.

[21] This contention does not sit well with the claim by the plaintiffs that bringing the dog into the detention centre was itself wrongful and amounted to an assault on the plaintiffs.

[22] ACN 087 528 774 P/L (formerly Connex Trains Melbourne P/L) v Chetcuti (2008) 21 VR 559 at 564-565 [16] per Hargrave AJA (with whom Ashley and Dodds-Streeton JJA agreed)

[23] There were no “attack dogs” as alleged by the plaintiffs – only one trained Corrections dog under the control of its handler.

[24] EA and KW deposed to feeling “scared” when they heard the dog, but that is not the same thing as feeling imminent fear for their personal safety or imminent fear of direct harm. (LO deposed that he was not scared because he was not doing anything wrong, but in the witness box said he was scared.)

[25] I agree with the defence submission that, having regard to the Public Sector Employment and Management Act 1993 (NT), the directive signed by the Director (ie the Commissioner) should be considered as a directive of the Commissioner to all of his relevant subordinates and thereby the superintendent and all of his subordinates. By way of explanation, s 155 of the Youth Justice Act confers power on the superintendent to approve the use of restraint, which in turn makes the superintendent a ‘statutory office holder’ for the purpose of s 63(1) of the Public Sector Employment and Management Act. If a statutory office holder is expected to be absent, s 63(2) provides that this power to direct people is conferred on the CEO (ie in this case the Commissioner). As it cannot be expected that the superintendent be present on all occasions that detainees are handcuffed for transportation, Directive Number 3.1.5 issued by the Commissioner has the effect of conferring on YJOs the same powers as the superintendent to approve restraints for transport.

[26] He is the first detainee removed from the BMU. His hair is the same as the boy shown on the CCTV as being out of his cell. He is addressed as ‘Rope’ by one of the officers and another of the officers calls him “Jake”.

[27] KW deposed that the Berrimah guards handcuffed him painfully each time they applied handcuffs, but I took this to be referring to the time when they were in Berrimah. His description of how the guards handcuffed them each time they escorted the detainees anywhere is not borne out by the video evidence. This is explained in more detail below.

[28] (1959) 101 CLR 298; [1959] HCA 8

[29] Briginshaw v Briginshaw (1938) 60 CLR 336 at 350 per Rich J: “The nature of the allegation requires as a matter of common sense and worldly wisdom the careful weighing of testimony, the close examination of facts proved as a basis of inference and a comfortable satisfaction that the tribunal has reached both a correct and just conclusion.”

[30] A similar note was made by a nurse, Alison Kelly RN on Sunday 24 August 2014: “Spoke to [LO], stated he did not feel like harming himself, stated he only said he would harm himself to get out of B Block in the main prison as he didn’t like it in there. Good eye contact and answered questions appropriately.”

[31] LO was cross-examined about the interview with Matthew Chick. He said that he said those things a number of days later when he wasn’t in that cell anymore. He said that if he was in that cell for at least another half an hour, he would have attempted to kill himself. He also said that the only way he could get off ‘at risk’ was to speak to this lady to keep moving forward.

[32] Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645 at 650 per t Mason CJ, citing Palmer v The Queen [1971] AC 814 at 832

[33] Beckford v The Queen [1988] AC 130 at 144 per Lord Griffiths

[34] Section 3

[35] (2012) 248 CLR 417; [2012] HCA 57

[36] At 424-425 [18]

[37] See 428 [31]

[38] At 428 [31] – -429 [35]

[39] Second Further Amended Statement of Claim of EA [34]. (By agreement during the proceedings, when referring to a paragraph number, the statement of claim of EA was to be used. Each plaintiff’s statement of claim followed a similar structure, but specific paragraph numbers varied.)

[40] Second Further Amended Statement of Claim of EA [35]

[41] Second Further Amended Statement of Claim of EA [49]

[42] (2012) 31 NTLR 150

[43] Mildren J held that s 19 of the Personal Injuries (Liabilities and Damages) Act did not apply as it had not been pleaded. He said further, at p 172 para [70]: “A claim for false imprisonment is not for personal injury as such. Damages are awarded for the insult and humiliation involved, not for any injury to the person as that is commonly understood.” The plaintiff was not seeking damages for any injury caused by the various batteries.

[44] (2015) 20 DCLR (NSW) 276

[45] Whitfeld v De Luret & Co Ltd (1920) 29 CLR 71 at 77 per Knox CJ

[46] Harold Lunz, Assessment of Damages for Personal Injury and Death: General Principles (Butterworths Australia, 4^th ed, 2002) 75., in particular footnote 471 and the cases cited therein

[47] Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 149 per Windeyer J; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44

[48] Lackersteen v Jones (1988) 92 FLR 6 at 42 per Asche CJ;, cited in Majindi v Northern Territory at 173

[2017] NTSC 22

21 March 2017

Key Legal Topics

Areas of Law

Tort Law

Legal Concepts

Battery

Self-Defence

Apprehension of Harm

Aggravated Damages

Exemplary Damages