McStravick v State of Western Australia - [2000] WADC 319

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: McSTRAVICK -v- STATE OF WESTERN AUSTRALIA & ORS [2000] WADC 319

CORAM: FENBURY DCJ

HEARD: 6-10 NOVEMBER 2000

DELIVERED : 13 DECEMBER 2000

FILE NO/S: CIV 1005 of 1997

BETWEEN: CYRIL MICHAEL McSTRAVICK
Plaintiff
AND
STATE OF WESTERN AUSTRALIA
First Defendant
ANTHONY THOMAS
DANNY TEN SELDAM
ALISON TEN SELDAM
NEIL GOOCH
MAREE GOOCH
PETER VAN RIJN
MICHAEL NELSON
GREG HARLAND
ALEX JONES
WAYNE DREW
GLENIS GARNETT
DANNY MEADE
ROHAN CALVERT
CRAIG NELSON
Second Defendants

Catchwords:

Negligence - Damages for personal injuries - Employer's liability - Whether or not the State Government is the employer of a police officer

Legislation:

Nil

Result:

Claim dismissed

Representation:

Counsel:

Plaintiff:     Mr D R Clyne
First Defendant             :     Ms C F Jenkins
Second Defendants       :     Mr M W Schwikkard

Solicitors:

Plaintiff:     Friedman Lurie Singh
First Defendant             :     State Crown Solicitor
Second Defendants       :     McAuliffe Schwikkard

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

A-G (NSW) v Perpetual Trustees Co Ltd (1952) 85 CLR 237
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Chappel v Hart (1998) 195 CLR 232 at 243
Crimmins v Stevedoring Industry Finance Committee (1999) 74 ALJR 1
Enever v The King (1906) 3 CLR 969
Griffiths v Haines [1984] 3 NSWLR 653
March v E & M H Stramare (1991) 171 CLR 506
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Middleton v Western Australia (1992) 8 WAR
Pense v Hemy [1983] WAR 40
R v Hyman (1990) 2 WAR 222
Sutherland Shire Council v Heyman (1985) 157 CLR 424
Western Australia v Bond Corp (1991) 5 WAR 40 at 67

FENBURY DCJ: This is an action for damages brought by a police officer for injuries he suffered when he attended, in the course of his duty, at a social function known as the Bremer Bay Bash.
The trial dealt only with the issue of liability.
The plaintiff brings the action against the State of Western Australia and also the members of an incorporated association that organised the duly licensed social function outside the enclosed area of which the incident resulting in the plaintiff's injuries occurred.
In the statement of claim at par 2 ‑ 7 the plaintiff pleads, and the first defendant admits the various sections of the Police Act and police regulations that he says justifies the assertions in pars 8‑10 as follows:
"8.In the premises the plaintiff was in the course of his employment subject to the direction, discipline and control of the first defendant and as a consequence the first defendant owed to the plaintiff a duty to provide inter alia a safe system of work.
9.Further and alternatively the plaintiff as a consequence of the matters referred to in paragraphs 1 to 7 hereof was subject to the direction and control of his superior officers in the Police Force for whose acts the first defendant is vicariously liable.
10.Further and alternatively the plaintiff was at all material times employed by the first defendant as a police officer and as a consequence the first defendant owed to the plaintiff a duty to provide him with a safe system of work."
Paragraphs 8, 9 and 10 of the statement of claim is denied by the first defendant.
Accordingly a crucial issue joined on the pleadings is the nature of the relationship between the plaintiff, at the relevant time a member of the police service, and the State of Western Australia which appointed the Commissioner of Police and more particularly whether the plaintiff was relevantly an employee of the first defendant.
There is also the question of whether the State can be held vicariously liable for the negligence of a police officer.
In par 11 of the statement of claim the plaintiff asserts that the second defendant was an unincorporated association and, in par 12, that on 30 March 1991 it conducted the function known as the Bremer Bay Bash (the "Bash"). It is pleaded that the second defendants occupied and controlled the property for the purpose of conducting the Bash.
Certain circumstances are then pleaded, and in particular the allegation that "a state of anarchy" developed. It is then pleaded in par 13A that the plaintiff and the second defendants "were at all material times in a relationship of proximity" and the basis for that assertion is then particularised. It is then pleaded that the second defendants owed the plaintiff a duty of care as a police officer and that they would
"organise and conduct the Bash in a manner such as to prevent unlawful, disorderly and riotous behaviour occurring thereat in that in the event such behaviour occurred there was a foreseeable risk that a police officer would be required to attend at the bash so as to prevent or suppress such behaviour and thereby place himself or herself at risk of bodily injury".
In par 14A it is pleaded that the second defendants were negligent and in breach of their duty of care owed to the plaintiff in that they caused or permitted the "unlawful, drunk and disorderly and riotous behaviour" to occur such as to require the attendance of police reinforcements and more particularly it is pleaded in effect that the second defendants were negligent in that they:
1.Failed to limit or control the numbers of patrons.
2.Failed to provide adequate numbers of security guards.
3.Failed to control adequately or at all the supply of alcohol.
4.Failed to terminate the supply of alcohol.
5.Failed to terminate the bash at a time when numerous instances of unlawful drunk and disorderly and lawless riotous behaviour had begun to occur.
It is convenient first to make reference to the evidence and to make factual findings in the case before considering the law. Depending upon my findings, only brief reference to the law may be required.
The evidence on the first day of trial was taken up mainly with the evidence of the plaintiff and Senior Constable Sears.
A brief background to the matter is that the Bash was held on a farm paddock one to two kilometres out of the town of Bremer Bay on the night of 30 March 1991. For the purposes of holding the function and to comply with the liquor permit an area of the paddock was fenced off and secured by the second defendants. Toilet facilities were constructed and a stage for a live band was set up. (See exhibit 3 ‑ aerial photograph). There was food and alcohol provided at the function. Persons paid $35 per head for entry.
The Bash was a function which had been held in previous years. It was reasonably well known in the district and was quite popular. As a result of the holding of the Bash and the fact that it was a holiday weekend the population of Bremer Bay swelled to a total estimated to be somewhere between 4,000 and 5,000 people. Estimates about the number of people who attended the Bash vary. There was a large number of people gathered outside the compound who did not enter.
It appears from gate takings (Exhibit 8) that just under 900 paying guests attended the Bash and entered the compound.
In addition to tourists and locals, members of three separate motor cycle gangs namely the Gypsy Jokers, the Club Deroes and God's Garbage were present in the vicinity of the compound.
The approximate location of various features of the scene is depicted in a sketch map prepared by counsel for the second defendant which became exhibit 1. Some aspects of the map are contentious but I think they are relevantly insignificant.
The function commenced in the late afternoon. There was a good deal of drinking that took place from early in the evening. Members of the West Australian Police Service had, in liaison with the second defendants, foreseen the need for some extra police to be stationed at the function. Accordingly there were extra police in Bremer Bay numbering, in toto, including the two local officers who came from Ongerup, ten personnel. These extra police were provided following a request to Superintendent Oversby (Exhibit 10).
In the early part of the evening there was trouble between bikies and aboriginal people who came from Gnowangerup or Tambellup. There was fighting and disorderly behaviour. Some of this got quite nasty for a time. An aboriginal person's motor vehicle was destroyed by a group of bikies and particularly a bikie from the Club Deroes.
These matters were recorded in the Ongerup Police Occurrence Book of 30 March 1991 at 1040 hours as follows:
"Complaint received by First Class Constable Sears from Andrew Smith of Bremer Bay to the effect 'there is a fight between bikies and aborigines up behind the bash can you assist'.
All officers recalled to hall and then attended bash area.
Whilst police were in attendance a large brawl developed between the bikies and the aborigines. Due to the lack of police numbers it was decided to leave the area. No other parties included in the incident were effected by it."
In his report dated 8 April 1991 (8 days later), concerning the incident (Exhibit 7), First Class Constable Sears put it more fully as follows:
"On the Saturday evening a high police profile was maintained with numerous patrols being conducted in the Bremer Bay area. At about 2240 hours that night a complaint was received by myself from a Andrew Smith of Bremer Bay to the effect 'there is a fight between aborigines and bikies up behind the Bash area, can you assist'.
I immediately recalled all staff working that evening (eight in total) to the Bremer Bay Hall where a temporary police station was being conducted. We then attended the Bash area in two marked patrol cars and two marked security vans.
Upon arrival it was ascertained there was no fighting in progress but it appeared that tempers amongst the aboriginals and the bikies were rising. Police alighted from their vehicles and took up position between the two factions in an attempt to settle the situation and restore some form of order. I estimate that there were approximately 50 bikes and about 30 aboriginals involved in this incident.
A large brawl broke out between the two factions and police were powerless to prevent the occurrence. During the fighting police attempted to intervene with little success. Numerous threats of violence were made against police from both factions with minor scuffles breaking out between the police and both factions.
As acting officer in charge I took it upon myself to re‑group all the police officers at the hall as I feared the situation would worsen and envisaged both groups turning on police.
At 2307 hours I contacted Sergeant Cooper of Albany Police and advised him of the situation and requested that Sergeant Carter be advised. Some eight minutes after this a local resident approached me and advised me that he had heard that the aborigines had gone to get reinforcements and were going to return with firearms and confront the bikies.
I immediately arranged for a road block to be set up on Mary Street which is the only entrance into the Bash area with a view to searching all vehicles entering the area and preventing the aborigines from returning to the Bash area.
Sergeant Carter was contacted at 2326 hours and given a situation update as well as a request for assistance. I was advised to stand by and await further instructions.
I again contacted Sergeant Carter at 2355 hours and advised him that the situation was all quiet at the moment but assistance was still required as I fear the situation could get out of hand should the aborigines and the bikies confront one another again."
First Class Constable Sears' report is based in part upon a more contemporaneous note he made on 31 March 1991 which was in the nature of a justification of his request for assistance and being a memo to Sergeant Carter. Indeed Exhibit 7 clearly relies upon Exhibit 6 for material.
It is obvious from these documents, and it was the oral evidence, that following the trouble between the bikies and aboriginal people the situation calmed down.
The aboriginal people shortly thereafter left the scene. The suggestion that they might return to the vicinity in motor vehicles armed with weapons so as to settle their perceived grievance with the bikies did not eventuate. It is not clear precisely when road block was set up. It is referred to in the Occurrence Book at 2316 hours and also 0030 hours, on the following morning.
As First Class Constable Sears stated in his report, at about 2307 hours, according to the Ongerup Occurrence Book, Albany Police were contacted and Sergeant Cooper was advised "of the situation". Although there is no reference in the Ongerup Occurrence Book as to what was decided it would appear from the Albany Occurrence Book, exhibit 9, that Albany police officers were recalled to duty at about 2330 hours. Sergeant Curtis, the plaintiff and Constable Williams, then set out from Albany for Bremer Bay "re bikie trouble". Other officers also went to Bremer Bay from Albany bringing the total police presence to about 19 officers.
Much of what I have indicated so far is not significantly in contention save to say that a number of the witnesses, and in particular the plaintiff and his main witness, former Constable Darryn Brown, described a much more violent degree of behaviour in the early part of the evening than did other witnesses including Constable Sears.
Former Constable Brown joined the police force in 1984 but is now a retired officer having left the force for medical reasons. He suffered injury following an assault and has developed psychological problems.
Former Constable Brown was one of the officers who attended the scene of the Bash at around 7.00pm. He was from Albany. He was part of the first contingent of extra police arranged following liaison between police at Ongerup and the second defendant prior to the holding of the function. According to former Constable Brown what occurred outside the bash amounted to a total breakdown of law and order. He said that he feared for his life. His description of the dispute between the bikies and the aboriginal people was of an extremely violent and nasty incident. He said that members of the God's Garbage bikie group were "running amok". He said things were so bad that police were pulled back. He lost track of time. On one occasion he was forced to use his baton to strike a bikie across the knee. In short he described a "war zone".
Former Constable Brown's description of events in the early part of the evening, prior to the arrival of the emergency relief from Albany at about 2.00am, was not supported by other witnesses. Other police officers who were at the scene in the earlier part of that evening also spoke about the events as being of a violent and abusive nature but none of them engaged in the hyperbole that characterised former Constable Brown's evidence.
It needs to be borne in mind that the event which resulted in injury to the plaintiff occurred sometime after 2.00am the following morning. The alcohol for the Bash, according to the witness farmer Jones, was turned off at about 12.30pm. Patrons had all but left the Bash by about 1.00am. There were a number of bikies that remained in the surrounding areas but to all intents and purposes the Bash had concluded.
There is also quite a deal of evidence to the effect that following the withdrawal of police from the confrontation between the bikies and the aboriginal people that occurred sometime around 10.40pm, matters tended to calm down. I do not think the fact police withdrew should necessarily be taken as a sign of the gravity of that confrontation. It is a recognised tactical step in dealing with violent incidents, according to Senior Constable Trindle. He was an expert in these matters called on behalf of the first defendant. In any event, no matter how violent or unruly the situation was in the earlier part of the evening, matters calmed down thereafter, some time before the Albany reinforcements arrived.
It was in anticipation of the possibility of further trouble, especially should the aboriginal people return later in the evening, (which they did not) that reinforcements were sought from Albany. The plaintiff was one of those officers woken up at his home and required to attend in uniform for the dash to Bremer Bay.
Before concluding my remarks about the scene earlier in the evening it is also to be noted that no police officer, apart from former Constable Brown, used his baton or any weapons. No riot gear was issued or even taken to Bremer Bay. All of the witnesses, save for former Constable Brown, speak to the same effect, namely that however one characterised the early disputation in the evening, it was not one which required the issuing and use of riot gear including helmets and shields. It did not require the use of batons or weapons. Furthermore, the view of all other witnesses was to the effect that to use such equipment in the circumstances of the evening would have exacerbated the situation.
On the evidence I have heard police officers handled the occasion with some skill. Officer Bennett, for example, observed the "trashing" of the utility by a bikie. He stepped forward to intervene and was threatened by three other bikies. He took a good look at the offender and then decided that discretion was the better part of valour and did not intervene. That was very sensible in the circumstances. His plan was, wisely I think, to address the question of arresting the culprit at a later time when things had calmed down. Indeed that is what he eventually tried to do.
It is to be observed that all witnesses said that no attempt had been made to turn off the alcohol at the Bash or to close it down during the critical periods earlier in the evening. This was because people had paid a significant fee to attend the bash and it was decided that if an attempt was made to close it down, this could have caused a riot. That judgment seems to me to have been a sensible and reasonable one having regard to all of the evidence.
It was asserted on behalf of the plaintiff that the Bash was completely out of control as a social function prior to it closing. To the extent that that is relevant to the plaintiff's claim of having suffered injury after the Bash had closed down, I will make some brief comment concerning the evidence. Again the only person who speaks in extreme terms about the matter is former Constable Brown. Constable Sears described the situation as "very scary" in his evidence (apart from what he said in contemporaneous written records). I have no doubt he was referring to the situation outside the area of the bash on Mary Road involving bikies at around 10.40 pm. Certainly there is little evidence that things inside the closure were anything but joyous, perhaps drunken and disorderly, but fairly typical of an Australian bush barbecue dance. I had an opportunity to view a video of the function. To the extent that it was helpful, it painted a picture consistent with my last mentioned remarks.
In any event, whatever the situation in the earlier part of the evening, things had quietened down by the time reinforcements arrived from Albany. I shall now turn to a consideration of events from the time of that arrival which, as I have indicated, was at about 2.00am.
After the arrival of the reinforcements police decided to make their presence felt amongst the three groups of bikies camped in the areas surrounding the Bash compound. Having regard to what had happened earlier, police wanted to deter the bikies from any further violence by a show of force. They firstly attended the camp of the Club Deroes and there was no significant trouble there. Of course it was bikies from the Club Deroes who had been involved with the altercation concerning the aboriginal people and who had trashed the utility. Police then attended at the Gypsy Jokers camp and again there was no difficulty. There was some abusive and insulting language, but no physical violence.

Importantly not a single witness gave any evidence to the effect that there was a need for the use of any special weapons or equipment up to that stage.
Finally, police attended at the camp of the God's Garbage bikie group. It was at this campsite that the plaintiff was assaulted.
There was "scuffling" at the God's Garbage group. When police attended the camp they tended to split up. It is not clear precisely how many police officers were there but Sergeant Cassidy was in charge. He attempted to arrest a bikie but was prevented from doing so, physically, by other bikies. He was not assaulted in the sense of being punched but he went to ground briefly. He was not injured.
Sergeant Curtis was one of the senior officers who came from Albany in the reinforcement team. He was a police sergeant of 30 years experience. He had difficulty in recalling the events of this night, which of course is understandable, but he could not remember any scene of extreme crisis or emergency. I think his lack of recollection is significant in the sense that if there had been anything shocking and frightening such as former Constable Brown described then it is highly probable Sergeant Curtis would have recalled it. He was able to say, however, that he would not have used any riot equipment such as a baton, or shield, or helmet, on that particular occasion. He felt they would have been more of a hindrance than a help.
It is true that in his Albany Traffic Office Occurrence Book (Exhibit 9) Sergeant Curtis put it somewhat differently. In his entry at midnight he put it as follows:
"First Class Sergeant Curtis and Police Constable McStravick recalled to duty. Above attended in company with PC Williams at Bremer Bay re bikie trouble. On arrival police confronted several groups of bikie groups and whilst attempting to quell a disturbance between bikies Constable C McStravick was attacked by several bikies one of which head butted him on three occasions whilst another person (unknown) punched him in the kidney. This caused him severe pain in the head and kidney region."
Clearly, although Sergeant Curtis observed the violent incident involving the plaintiff, the situation generally was not such as to require the equipment to which I have referred.
Senior Constable Bennett was a witness called by the first defendant. He was one of the earlier contingent of police officers but was also involved in the incident at the God's Garbage campsite. He was with Detective Sergeant Cassidy. He cannot remember any difficulty prior to attending at the God's Garbage campsite. He saw Sergeant Cassidy in the middle of a group trying to make an arrest. There were scuffles, pushing and shoving. He understood from the bikies that they had been instructed by their leaders not to touch police because they carried fire arms. Officer Bennett had his baton and firearm but did not use either. He said he was never under any threat himself and he did not see any other person in that situation. He said that riot shields were not necessary, that there was "never any threat to us" and that the scene had not got out of control. He remembered seeing former Constable Brown strike a bikie on the knee in the earlier part of the night and he felt that that was "an uncalled for assault".
Officer Bennett had a poor recollection of events and was not a particularly significant witness but his evidence was inconsistent generally with that of former Constable Brown.
A most impressive witness was Senior Sergeant Cassidy who joined the police force in 1974. He was one of the Albany reinforcement contingent. He said that when he went and spoke to bikies in their groups they were fairly aggressive but there was no physical violence. They were just abusive and insulting and "not agreeable towards police". He attempted to arrest a man but was unsuccessful. Bikies pulled him away. Sergeant Cassidy said that he went to ground. There was a bit of a melee. He was not assaulted in any other way. He did not take out his baton because he did not believe he needed to. He received no injury. His view was that the incident as a whole did not require the use of shields, batons, or riot gear of any kind and that this would have exposed officers "to litigation" and would have been provocative. That view was shared by a number of other witnesses including Detective Sergeant Adams from Albany.
Another witness called on behalf of the first defendant was Sergeant Browne who was a police officer holidaying in Albany from Victoria Park with his brother-in-law Detective Sergeant Cassidy. Sergeant Browne went along with the Albany reinforcement contingent in order to assist with the driving. He carried no weapon.
Sergeant Browne observed after they arrived at the scene at about 2.00am that there was disorderly conduct taking place. People were urinating wherever they liked. There was street drinking. However, things were "reasonably quiet from a violence point of view". Sergeant Browne rejected the suggestion that specialised equipment such as shields, helmets and matters of that kind should have been used. He said there was no need because the crowd was dispersed. On no occasion did he fear for his life. He did not become involved himself in any physical interaction. This was because he was not required to do so. His assistance was not needed.
Detective Sergeant Woodall spoke in similar terms. He said there was pushing and shoving and "chest puffing". Detective Sergeant Woodall has, as distinct from other witnesses, had quite a deal of experience in the use of riot equipment and batons. He said that the use of any of that equipment was not required here because the situation did not demand it and because he felt it would have been provocative.
The preponderance of the evidence is to the effect that following the arrival of the Albany reinforcements, apart from some fairly minor physical confrontations at the God's Garbage campsite, things were quiet.
The plaintiff maintains that he was part of the group that attended at the God's Garbage camp and that he was assaulted by a man who had "a fist full of rings". He said this was a very frightening experience for him and he sustained significant injuries and after effects. Surprisingly the plaintiff did not make an official complaint of assault until some eight weeks later. He alleges that he suffered soft tissue injuries together with psychological after effects.
As I have indicated earlier in these remarks, the plaintiff relies heavily in his case against the first defendant upon the evidence of former Officer Brown. Apart from the fact that I am concerned about Brown's reliability as a witness, having regard to his sequencing of events, it is quite clear that he is very sympathetic to the plaintiff's cause. He is a "mate" of the plaintiff who is also on a pension, having left the police force following injury in the course of his employment. That of course does not necessarily affect his quality as a witness but having heard him it is clear that he bears a lot of hostility towards the police. His views about matters are quite suspect. He tended to exaggerate his evidence. Nobody painted as serious and grave a picture of the event as he did. He was difficult, and sometimes hostile to questions in cross‑examination. I am not prepared to accept his views of what occurred on the night in question. Certainly, when it comes to a conflict, I prefer the evidence of the other police officers to whom I have made reference.
In par 14 of the statement of claim the plaintiff pleads 13 particulars of negligence. I shall deal with these as I recite them.
"(a)Failed to provide adequate numbers of police officers to control the significant numbers of patrons expected at the bash" -
It seems to me that there was a proper assessment made of the situation by Senior Sergeant Medhurst, then the senior Constable in charge of the Ongerup Police Station, particularly having regard to the lack of significant trouble at the Bremer Bay Bash in the previous three or four years. There were 10 police officers initially organised to attend and a further eight or nine arrived by way of reinforcements. I am not persuaded that the numbers were inadequate. Police were outnumbered of course but the 10 police available until 2.00 am dealt adequately with the earlier trouble. I do not think any more were needed. After reinforcements arrived no similar problems occurred. What is described as having occurred at the God's Garbage camp pales in comparison with the brawl that occurred at 10.40 pm.
"(b)Failed to ensure a sufficient experienced senior police officer was on duty in charge of the police personnel at the bash" -
Senior Sergeant Medhurst was on leave at the time of the Bash and he placed control of all arrangements in his subordinate being First Class Constable Sears. He had confidence in Constable Sears. Constable Sears was an officer of considerable experience. He had attended at previous Bashes. I am not persuaded that First Class Constable Sears was too inexperienced for the job. Whilst he was in charge, the volatile situation involving bikies and aboriginal people was well handled. He was not in charge after senior police personnel arrived from Albany.
"(c)Failed to control the numbers attending at the bash" -
It would appear that there were something in the order of 900 people at the Bash. Fifteen hundred had been expected. There is no evidence that the numbers in the Bash compound were uncontrolled. There were a number of bikies and other people outside the Bash, in the surrounding area, but it is difficult to see how police could have controlled the attendance of those people. Certainly, having regard to the video and all of the evidence, it cannot be said that there were too many people attending the Bash in the sense of being in the compound. There is no substance in this allegation of negligence.
"(d)Failed to control adequately or at all the supply of alcohol to the people attending the bash" -
It was not the responsibility of the police to control the supply of alcohol. The second defendants had a liquor licence and it was their responsibility. Police could have intervened if there were any breaches of that licence. They did not do so.
"(e)Failed to terminate the supply of alcohol to persons attending at the bash at the time when numerous instances of drunkenness, disorderly conduct and lawless behaviour were obvious" -
It is not clear where these instances of unsatisfactory behaviour occurred but on the preponderance of the evidence it seems they all occurred outside the compound in which the Bash was held and not inside. In any event the police did not intervene to stop the flow of alcohol. Most of the witnesses who were asked to comment upon that matter indicated that if the alcohol flow had been terminated in the circumstances where there was no trouble within the compound itself there would have been a riot. I must say that, having regard to all the circumstances of the case such as I have been able to assess them, there is logical force in that view. I am not convinced there is any substance in this allegation of negligence.
"(f)Failed to terminate the bash at a time when numerous instances of drunkenness, disorderly conduct and lawless behaviour were obvious" -
Again, according to the evidence, premature termination of the Bash could have caused far more problems than it solved. Furthermore, I am not persuaded that misbehaviour had anything to do with persons inside the compound. Termination of the Bash had no relevance to what occurred later. Indeed the poor behaviour that surrounded the circumstances of the plaintiff's injury took place at a time well after the Bash had terminated.
"(g)Failed, by the officer in charge of the bash, to adequately brief the officer in charge of police at Albany on the true nature and extent of problems and lawlessness occurring at the bash so as to permit a proper assessment of necessary reinforcements to be made" -
On the evidence I am of the view that the police personnel at Albany were adequately briefed about the matter.
"(h)Failed to send sufficient and adequate reinforcements" -
There were a total of 19 police officers at the scene. One of them was an off duty officer who was not required to assist. There is no evidence that the numbers of police officers at the scene were insufficient and, to the contrary, I think that the numbers were sufficient on the evidence of what I have heard about that evening.
"(i)Failed to provide sufficient quantities of proper protective clothing and other riot gear to the plaintiff and other reinforcement police officers" -
As I have said the preponderance of the evidence was to the effect that there was no need for the issue of riot gear in the nature of helmets, shields and the like. Indeed the evidence is that should that sort of equipment have been worn it is likely to have been most provocative and I accept that evidence.
"(j)Failed to properly train and instruct the plaintiff and other police officers in crowd and riot control" -
It would appear that each of the police officers at least had some degree of training in how to deal with difficult or violent situations. Significantly, however, any suggested lack of training did not seem to me to have any causative relevance to the plaintiff's injuries.
"(k)Required the plaintiff to attend at a bikie camp in circumstances where police officers were seriously outnumbered by drunken and aggressive bikies but when there was no sufficient or good cause for attending at that area the bikies at that time keeping to themselves" -
I am not sure that I understand this particular of negligence but in any event I think the decision to attend at bikie camps and show the increased police presence thereby hoping to head off any further trouble was a reasonable decision in the circumstances. In fact, of course, the plaintiff hastened to the area of the God's Garbage camp when he heard some noises after other police had arrived there. But in any event I do not accept that there were inadequate numbers of police officers or that they should not have attended that particular camp site when they did.
"(l)Failed to provide any or any proper assistance to the plaintiff in that three fellow officers stood by and watched the assault on the plaintiff without rendering assistance to him" -
Only one of the officers, I think it was former police Officer Brown, gave evidence about an officer standing by when the plaintiff was being assaulted. I am not prepared to accept his evidence. Obviously there can be a number of reasons why police officers might stand by during an assault on another officer. Officer Sears said that these sorts of situations of violence against police can "blow up quickly" and "people can be shocked into inaction". I am not satisfied that the facts relied on have been made out.
It follows from all of the above that assuming for the sake of the argument that the plaintiff can bring this action against the first defendant, I am not satisfied on the balance of probabilities that he has proved his case.
There is much debate on the question of whether or not the plaintiff can bring an action against the State of Western Australia in the circumstances of this case. Given my view about the facts I do not see any need for me to express opinion on this contentious issue, particularly having regard to the fact that I am informed by counsel for the first defendant that there has been legislative intervention in the matter and that s 137(5) of the Police Act has reversed the old common law principle that this sort of action is not maintainable.
For the above reasons the plaintiff's case against the first defendant should be dismissed.
The plaintiff's claim against the second defendants is, as Mr Clyne put it, based upon ordinary principles of negligence.
The plaintiff relies firstly upon the fact that the second defendants encouraged and attracted as many people as possible to attend the bash. They did this with extensive radio advertising and through the production of a flyer, which was Exhibit 15, upon which counsel placed considerable weight.
Counsel submitted that the second defendants should have foreseen that people would not stay in the compound and that they would spill out and congregate around on the outside. He asserted that those people would still be under the control of the second defendant. Mr Clyne emphasised the fact that, having regard to the minutes of the meetings of the Gairdner Social Club, the Club had foreseen trouble between bikies and aboriginal people. The second defendants permitted the bikies to congregate in the surrounding area and in the result, according to the plaintiff, the second defendants cannot assert that they were only responsible for events which occurred inside the compound. Having attracted all of these people to the area, it was asserted, the second defendants had the responsibility to "ensure nothing went wrong". Thus, according to the statement of claim, the second defendants were negligent:
"… and in breach of the duty which they owed to the plaintiff in that they caused or permitted the unlawful, drunken, disorderly and riotous behaviour as described …to occur… such as to require the attendance of police reinforcements at the bash including the plaintiff." (Par 14A).
It is then asserted that the second defendants were negligent in five particular ways and I shall refer to each particular and then express my views immediately following.
"(a)Failed to limit or control the numbers of patrons attending at the bash with the result that the police and security guards in attendance were vastly outnumbered and were unable to maintain good order or control with the result that unlawful, drunken, disorderly and riotous behaviour occurred such as to require the attendance of police reinforcements."
It is to be noted, as I have mentioned, that there had been no significant trouble at any previous Bash. Therefore the second defendants had no reason to suspect there would be any serious trouble on this occasion. Following liaison with police officers more police were organised to be available on the night in question. Furthermore, bodyguards and SES workers together with club members were on duty. The compound in which the Bash was held was properly and adequately erected. There was a purpose built gateway which was staffed at all times. What occurred inside the compound was normal and reasonable for a function of this kind. The police did not ever try to close the Bash down and the only conclusion to be drawn is that the Bash itself was well run and orderly at all material times. It also finished in an orderly fashion.
Persons who organise such a function cannot be said to guarantee that there will be no trouble between people who may be attracted to the general area. The police did not foresee this sort of trouble and it is difficult to see how the second defendants could have done so. The number of persons who entered the Bash was controlled and there were never too many people inside the compound. In fact there was no evidence of any significant trouble inside the compound. There is no substance in this allegation of negligence.
"(b)Failed to provide adequate numbers of security guards at the bash with the result that the police and those security guards in attendance were vastly outnumbered and were unable to maintain good order or control with the result that unlawful, drunken, disorderly and riotous behaviour occurred such as to require the attendance of police reinforcements."
There were adequate numbers of security guards and other personnel for the conduct and control of the bash itself. It was not the obligation of the second defendants, in my view, to provide extensive, or indeed any staff to control those people who chose to attend in the general area but not in fact enter the bash compound.
"(c)Failed to control adequately or at all the supply of alcohol to the people attending the bash in that those persons who did attend were provided with unlimited and unrestricted quantities of alcohol even if already inebriated with the result that unlawful, drunken, disorderly and riotous behaviour occurred such as to require the attendance of police reinforcements."

There is no evidence to substantiate this allegation of negligence. The supply of alcohol was well controlled. Police never requested the supply to be terminated. |There is no evidence that the misbehaviour of persons outside the bash was the result of supply of alcohol from within the compound itself. Indeed a lot of the bikies who were involved in the outside trouble had been to the local hotel prior to attending the area. There is no substance in this allegation of negligence.
"(d)Failed to terminate the bash at a time when numerous instances of unlawful, drunken, disorderly and lawless but riotous behaviour had begun to occur so as to prevent further behaviour of that type occurring such as to require the attendance of police reinforcements."
Similarly to the factors concerning this allegation in the plaintiff's case against the first defendant, the evidence seems to me to establish, that termination of the bash prematurely would have been likely to create far more difficulties and problems than it solved. In any event the bash concluded some time around 12.30 to 1.00am and the circumstances of the plaintiff's injury and the trouble that surrounded it all occurred half an hour to an hour later. Generally with respect to the allegations against the second defendants, I am not persuaded on the balance of probabilities that any of the conduct of the second defendants, even if I made findings in favour of the plaintiff as pressed, had any causative relationship to the plaintiff's injuries.
In my view the plaintiff has failed to establish the facts necessary to found his claim of negligence against the second defendants and his claim should be dismissed.