Palmer v Australian Capital Territory
[2022] ACTSC 173
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Palmer v Australian Capital Territory |
Citation: | [2022] ACTSC 173 |
Hearing Date: | 31 May 2022 |
DecisionDate: | 15 July 2022 |
Before: | McCallum CJ |
Decision: | See [27]. |
Catchwords: | PRACTICE & PROCEDURE – EVIDENCE – EXPERT EVIDENCE – application for experts to give concurrent evidence – expert evidence regarding the use of excessive force – where experts disagree – whether concurrent evidence gives rise to unnecessary costs – where concurrent expert evidence could narrow the issues in dispute |
Legislation Cited: | Court Procedures Rules 2006 (ACT) r 1211 Evidence Act 2011 (ACT) s 79 |
Cases Cited: | Booth v De Francesco [2002] NSWSC 154 Spasovic v Sydney Adventist Hospital [2002] NSWSC 164 |
Parties: | Paul Palmer ( Plaintiff) Australian Capital Territory ( Defendant) |
Representation: | Counsel D Richards ( Plaintiff) S Whybrow ( Defendant) |
| Solicitors Maliganis Edwards Johnson ( Plaintiff) ACT Government Solicitor ( Defendant) | |
File Number: | SC 208 of 2020 |
McCallum CJ:
The plaintiff in these proceedings claims damages for personal injury arising from events that occurred while he was an inmate at the Alexander Maconochie Centre, which serves as the prison for the Australian Capital Territory. On 8 September 2017, following a series of disturbances at the Centre, the plaintiff was extracted from his cell and taken downstairs to another cell or holding area. He claims to have been injured as a result of the way in which he was handled by corrections officers during those events.
The proceedings are listed for hearing commencing on 29 August 2022. By application in proceedings dated 26 May 2022, the plaintiff seeks orders pursuant to r 1211 of the Court Procedures Rules 2006 (ACT) requiring the expert witnesses to prepare joint reports and give concurrent evidence. This judgment determines that application, which is opposed by the defendant.
Circumstances in which the application is brought
The pleadings allege that, as a result of actions by the plaintiff, he was placed in an isolated cell. I understand that to be the cell referred to in the evidence as “Cell 19”. The pleadings then make the following allegations:
“1.9 Three of the corrections officers that entered the cell then forced the Plaintiff to the ground on his front and handcuffed his hands behind his back.
1.10 As the Plaintiff was forced to the ground, his legs contacted against the glass on the floor of the cell.
1.11 The corrections officers then forcefully lifted the Plaintiff off the ground by lifting his arms which were handcuffed behind his back.
1.12 The corrections officers then forcefully took the Plaintiff out of the cell and down a set of stairs into the exercise yard at the premises.
1.13 The force used by the corrections officers caused the Plaintiff injury, loss, and damage.”
The case as pleaded accordingly focusses on two phases of the interaction between the plaintiff and the corrections officers: the cell extraction and the journey down the stairs into the exercise yard. However, as I will explain, the expert evidence addressed a third phase, being the placement of the plaintiff in a holding cell after the trip down the stairs. I understood the plaintiff to accept at the hearing of the application that the pleading would need to be amended to bring it in line with the evidence in that respect.
The plaintiff pleads causes of action in negligence, assault and battery, and breach of statutory duty. Relevantly for present purposes, the injuries claimed include head injury, bilateral arm injuries and bilateral shoulder injuries.
The central factual issues in the proceedings (as expanded by the expert evidence) are relatively confined. They are:
(a)whether the corrections officers used excessive force:
(i)in handcuffing the plaintiff and lifting him off the ground in Cell 19;
(ii)in walking him down the stairs;
(iii)in getting him to kneel on the ground in the holding cell after descending the stairs;
(b)if so, whether that caused injury to the plaintiff’s arms and shoulders.
There is also an issue as to whether the plaintiff’s head was knocked against the wall of Cell 19 by one of the officers with a riot shield but that issue does not raise any question concerning the expert evidence and need not be considered further here.
Use of force experts
The parties have exchanged expert reports in two areas of expertise. The first might broadly be defined as expertise in the use of force in a custodial setting. The plaintiff has retained Mr Paul Stephens through a company called “Benchmark Experts”. Mr Stephens describes himself as a “security expert”. His specialised knowledge in that field based on his training, study or experience is, with respect, not well described in his reports: cf s 79 of the Evidence Act 2011 (ACT). He states in his first report that he has a diploma in security risk management but does not specify when or from which institution that qualification was obtained. His description of his experience is equally vague. If, as has been foreshadowed by the defendant, there is to be a challenge to his expertise, it would be prudent for the plaintiff to obtain his comprehensive curriculum vitae from Benchmark Experts. However, in the absence of any direct challenge to his expertise at the hearing before me, I consider it appropriate to determine the present application on the assumption (without purporting to determine the issue) that Mr Stephens is appropriately qualified to express the opinions he has expressed.
Parts of the incident were captured on CCTV and in footage from a hand-held recording device. Both experts viewed that footage and commented on it in their reports.
Mr Stephens’ first report dated 19 October 2021 stated that his opinion was sought on the “use of excessive force by detention officers at AMC during a physical extraction of a seemingly compliant inmate”. His report addressed the treatment of inmates other than the plaintiff and aspects of the treatment of the plaintiff that are not complained of in the statement of claim. Confining attention to the issues raised on the pleadings, the relevant opinions stated by Mr Stephens in his first report are:
(a)On the assumption that the plaintiff had complied with an instruction to face the rear wall of Cell 19 with his hands interlocked behind his head and that he was otherwise being fully compliant, that excessive force was used when the officers who had entered the cell turned him around, put him face down on the ground, restrained him and handcuffed him with his arms behind his back;
(b)That excessive force was used when he was lifted from the ground by his arms (still handcuffed) and removed from the cell.
The defendant has retained Geoffrey P. Alpert, an Affiliate Professor in the School of Law at the University of South Carolina. By contrast with the brevity of Mr Stephens’ description of his expertise, Professor Alpert’s report attaches a curriculum vitae that runs to some 49 pages. According to the summary on the last page of the professor’s report, his expertise relevantly includes policies and procedures in prisons including on the use of force, cell extractions, prisoner escorts and transportation.
Prof Alpert’s report dated 21 January 2022 appears mistakenly to refer to another inmate, Roberts, where he intended to refer to the plaintiff. Assuming the only inmate in Cell 19 was the plaintiff, Prof Alpert relevantly expressed the following opinions:
(a)That the officers used accepted tactics to control the plaintiff by keeping him face down on the floor and controlling his hands by cuffing them behind his back;
(b)That the officers used force to ensure that the plaintiff did not fight or attempt to resist;
(c)That although the plaintiff can be heard shouting out in pain as his arm is twisted and controlled, and the officer who is controlling the left arm is seen forcing it up, it does not appear that the force used to control it was excessive;
(d)That the officers do not seem to be using excessive or unnecessary force as they get the plaintiff on his knees in the corner of the new cell but that the officer on the right with the tattoos is seen “jerking up” the plaintiff’s right shoulder “which could be unnecessary or excessive”, noting that there is no evidence as to why that was done. Prof Alpert stated that if the plaintiff was resisting at that time, the use of force in the jerking action would be justified but that, if he was not resisting, the use of force to jerk the arm and shoulder would be excessive.
Mr Stephens provided a further report dated 16 May 2022 in which he responded to Prof Alpert’s report. It is not necessary to summarise the whole of that report. For present purpose, it is enough to note the following:
(a)Mr Stephens disagrees with Prof Alpert that accepted tactics were used by the officer controlling the plaintiff’s left arm in Cell 19 and reiterates his view that excessive force was used by that officer, whom he believes to be using pressure points on the palm, twisting and pushing the hand up towards the plaintiff’s shoulders. He notes that the plaintiff is expressing pain and discomfort while being fully compliant;
(b)In response to Prof Alpert’s conclusions that the officers used force to ensure that the plaintiff did not fight or attempt to resist and that accepted tactics were used to control him, Mr Stephens expresses the view that the plaintiff was being compliant throughout the entire episode. He says what is acceptable for controlling a non-compliant detainee is not acceptable under the guidelines and protocols for handling a compliant detainee;
(c)He similarly expresses the view that the “pain compliance technique” of raising the plaintiff’s arms to get him up off the floor was not required in the case of a fully compliant detainee;
(d)He agrees with Prof Alpert as to the jerking of the right arm by the correction officer with tattoos as the plaintiff is put on his knees in the corner of the new cell and says that there is no reason for that jerking action as the plaintiff is “seemingly remaining compliant” following the officers’ directions.
It may be seen that, at least to some extent, the opinions of the two experts differed because they made different assumptions as to whether the plaintiff was being compliant at the relevant time.
Medico-legal reports from orthopaedic surgeons
In addition to the two reports as to the use of force in the custodial setting, the parties have exchanged medico-legal reports, in each case provided by an orthopaedic surgeon. Those reports are mercifully short. The plaintiff relies on the report of Dr Mark Ridhalgh. He recorded a history that the plaintiff had been knocked down before being told to kneel and interlace his fingers (presumably, behind his head) and that his arms were then pulled behind him causing a wrenching injury to the right shoulder. Dr Ridhalgh expressed the opinion that the incident had caused instability in the right shoulder and that the prognosis was poor, the disability possibly requiring surgery (shoulder arthroscopy). In a supplementary report he stated that an MRI of the right shoulder taken on 5 May 2022 did not alter his opinion and indeed confirmed that the plaintiff has a tear of his supraspinatus tendon which had affected the plaintiff for the past 4 years.
The defendant had the plaintiff examined by Dr Stephen Ruff. Dr Ruff set out the results of his examination and concluded:
“I am not in agreement with Dr Ridhalgh that the right shoulder pathology is the result of the incident described in 8 September 2017 or that the diagnosis is instability or that the prognosis is necessarily poor. In fact [if] his shoulder did deteriorate, it would not necessarily be helped by shoulder arthroscopy.”
Thus in the case of the orthopaedic surgeons, their opinions are diametrically opposed but neither has explained his reasons for accepting or not accepting that the incident at the prison caused injury to the right shoulder.
Basis for the application
The application invokes r 1211 of the Court Procedures Rules 2006, which provides:
(1)The court may, on its own initiative or on a party’s application, give 1 or more of the following directions:
(a) a direction that the expert witnesses meet—
(i) to identify the matters on which they agree; and
(ii)to identify the matters on which they disagree and the reasons why; and
(iii)to try to resolve any disagreement;
(b)a direction that the expert witnesses produce for the court’s use a document identifying—
(i) the matters on which they agree; and
(ii)the matters on which they disagree; and
(iii)the reasons for any failure to reach agreement on any matter;
(c)a direction that—
(i)the expert witnesses give evidence at the trial after all or certain factual evidence relevant to an issue has been given; and
(ii)each party intending to call 1 or more expert witnesses close the party’s case in relation to an issue, subject only to presenting the evidence of the expert witnesses later in the trial;
(d)a direction that, after all or certain factual evidence has been given, a party who called an expert witness file and serve on each other active party an affidavit or statement by the expert witness stating—
(i)whether the expert witness adheres to any opinion given earlier; or
(ii) whether, in light of factual evidence given at the trial, the expert witness wishes to modify any opinion given earlier;
(e)a direction that—
(i)each expert witness be sworn one immediately after another; and
(ii) when giving evidence, an expert witness occupy a position in the courtroom (not necessarily in the witness box) that is appropriate to the giving of evidence;
(f)a direction that each expert witness give an oral explanation of his or her opinion, or opinions, on a question;
(g)a direction that each expert witness give his or her opinion about the opinion, or opinions, given by another expert witness;
(h)a direction that the expert witnesses be cross-examined, or re‑examined, in a certain way or sequence, including, for example, by putting to each expert witness, in turn, each question relevant to one subject or issue at a time, until the cross-examination, or re-examination, of all the witnesses is finished;
(i)a direction that any expert witness giving evidence in accordance with a direction under paragraph (e) be allowed to ask questions of any other expert witness who is also giving evidence in accordance with a direction under that paragraph;
(j)any other directions about giving evidence in accordance with a direction under paragraph (e) that the court considers appropriate.
(2) This rule does not limit the directions that the court may give on its own initiative or on a party’s application.
(3) If the court directs expert witnesses to meet under subrule (1) (a), it may—
(a) set the agenda; and
(b) state the matters the expert witnesses must discuss; and
(c) direct whether or not legal representatives may be present; and
(d) give directions about the form of any report to be produced to give effect to a direction under subrule (1) (b); and
(e) give any other directions it considers appropriate.
(4) If expert witnesses have met and produced a document identifying the matters on which they agree, a party affected must not adduce expert evidence inconsistent with a matter agreed unless the court gives leave for the evidence to be adduced.Mr Whybrow, who appears for the defendant, accepted that meetings between experts, joint reports and concurrent evidence can bring efficiencies in some cases. However, he submitted that this is not such a case.
In opposing the application, Mr Whybrow relied on the decision of the Supreme Court of New South Wales (Studdert J) in Spasovic v Sydney Adventist Hospital [2002] NSWSC 164. In that case, Studdert J applied the principles for determining whether to order a conference of experts in circumstances where the order is opposed which he had previously stated in Booth v De Francesco [2002] NSWSC 154, at [5]:
“Part 36 r 13CA provides a facility which practitioners involved in matters in the Professional Negligence List are to be encouraged to utilise in any case in which the appointment of a conference between experts might reasonably be expected could achieve any one or more of the objectives expressed in para 2 of Practice Note 121, namely:
(a)the just, quick and cost-effective disposal of the proceedings.
(b)The identification and narrowing of issues in the proceedings during preparation for such a conference and by discussion between the experts at the conference...
(c)The consequential shortening of the trial and enhanced prospects of settlement.
(d)Apprising the Court of the issues for determination.
(e)Binding experts to their position on issues, thereby enhancing certainty as to how the expert evidence will come out at the trial…
(f)Avoiding or reducing the need for experts to attend court to give evidence.’
Where, as here, the parties disagree as to the utility of a proposed conference, the Court must determine whether it perceives the case to be one in which it would be worthwhile to make an order. A party seeking an order is not required to prove that a conference if held will necessarily achieve any one or more of the objectives expressed in Practice Note 121, but the Court would ordinarily need to be satisfied of the existence of a reasonable expectation that this may occur.
The task is one which, of course, depends upon an assessment of the case in point, and in particular upon an assessment of the nature of the issues, the content of the medical opinions already available to the parties and upon any questions that might usefully be placed before the meeting for the report of the experts.”
The present application is not governed by the practice note referred to in those remarks but it reflects principles of general application which I would respectfully adopt. Further, I respectfully agree that the Court should not require a party seeking an order under r 1211 to prove that a meeting of the experts will necessarily achieve one of the objects set out above. The existence of a reasonable expectation of such a benefit is enough.
Mr Whybrow identified three principal reasons for opposing the application. First, he submitted that the experts are diametrically opposed in their opinions and that a process of conferring and producing a joint report is unlikely to narrow the issues in the case. At least so far as the “use of force” experts are concerned, I am not persuaded that their opinions are diametrically opposed. Their reports are written in very different styles and, in each case, much is assumed or taken for granted. However, distilled to their central propositions by reference to the pleadings, there may be as little between them as disagreement as to the extent to which force was justified by reference to what had occurred earlier in the day or as to whether the plaintiff was compliant or was showing resistance to the officers’ attempts to control him at the time of the cell extraction. In my assessment, there would be real utility in their conferring and recording their areas of agreement and disagreement concerning the central issues in the case. It seems likely that such a process would serve to crystalize the central issues in dispute in the minds of the experts and assist them in turn to assist the Court. Further, based on Prof Alpert’s report and Mr Stephens’ report in reply concerning the events in the new cell, it seems reasonable to expect that a meeting of those experts could well result in agreement on at least one of the central allegations of excessive force made by the plaintiff.
As to the orthopaedic surgeons, I accept that their opinions on the issue whether the incident caused injury to the right shoulder are diametrically opposed. However, neither surgeon expands upon his conclusion at all. In my assessment, there would be real utility in having those specialists speak to each other, and perhaps watch the footage of the critical events, with a view to saying whether there is any agreement between them or else explaining the basis for their respective different conclusions. That would surely isolate, if not resolve, their central disagreement as to the cause of the right shoulder injury.
The second principal basis on which the orders were opposed was the likely cost of the exercise, which Mr Whybrow contended would require the parties to frame questions for the experts and the experts then to prepare further reports. He submitted that the process would be complicated by the unknown assumptions to be made by them, which would necessarily depend on the evidence of the plaintiff and the relevant corrections officers at the trial.
There is some force in that concern. The Court must always be astute not to cause the parties to incur unnecessary costs. In my assessment, however, this is a case in which a meeting of the experts to try to resolve their disagreement has a real prospect of narrowing the issues in the proceedings and saving hearing time which, in turn, will save costs. I do not think it is necessary for the parties to frame the questions for the experts. While that is the usual practice, it is not a requirement of the rules. Nor is it necessary for the experts to produce a further report of any great length. For those reasons, I consider that the cost of the exercise should be able to be contained within reasonable bounds.
The third reason put forward by Mr Whybrow for opposing the application was that the question of whether the force used by the corrections officers was excessive is ultimately a matter for the Court based on its own assessment of the footage. If that is so, then there was no need for either party to retain an expert on that issue. However, while this is ultimately a matter for the trial judge, I do not think it is beyond the realm of possibility that the Court will derive some assistance from the opinions of persons with expertise in the use of force in the management of prisoners. Certainly, that is the premise on which both parties are currently proceeding.
For those reasons, notwithstanding Mr Whybrow’s considered reservations, I am satisfied that meetings between the experts might reasonably be expected, at the very least, to clarify and narrow the issues in the proceedings and consequently to shorten the trial and enhance the prospects of settlement. I also consider that the joint reports prepared by the experts are likely to assist the Court in identifying the real issues in dispute.
For those reasons, I make the following orders:
(1) That, on or before 8 August 2022, Mr Paul Stephens and Professor Geoffrey Alpert meet by any means convenient to them (which may be by AVL or telephone) to identify, by reference to the issues specified at par 6(a) of this judgment, and assuming the plaintiff was compliant and alternatively assuming he was not compliant, the matters on which they agree and the matters on which they disagree and to try to resolve any disagreement.
(2) That, by 22 August 2022, Mr Stephens and Prof Alpert produce for the Court’s use a document identifying the matters on which they agree; the matters on which they disagree; and the reasons for any failure to reach agreement on any matter.
(3) That Mr Stephens and Prof Alpert give concurrent evidence at the hearing commencing on 29 August 2022.
(4) That, on or before 8 August 2022, Dr Mark Ridhalgh and Dr Stephen Ruff, orthopaedic surgeons, meet by any means convenient to them (which may be by AVL or telephone) to identify, by reference to the issues addressed in their respective reports, the matters on which they agree and the matters on which they disagree and to try to resolve any disagreement.
(5) That, by 22 August 2022, Dr Ridhalgh and Dr Ruff produce for the Court’s use a document identifying the matters on which they agree; the matters on which they disagree; and the reasons for any failure to reach agreement on any matter.
(6) That Dr Ridhalgh and Dr Ruff give concurrent evidence at the hearing commencing on 29 August 2022.
(7) That the concurrent evidence of both pairs of experts be received by the Court by telephone or video link at the hearing commencing 29 August 2022;
(8) That the evidence of Ms Kerrianne Abbott, psychologist, be received by the Court by telephone or video link at the hearing commencing 29 August 2022;
(9) That the evidence of Ms Thabile Twala, psychologist, be received by the Court by telephone or video link at the hearing commencing 29 August 2022;
(10) That a Removal Warrant be issued for the Plaintiff to be brought to the Court for the hearing commencing 29 August 2022.
| I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: 15 July 2022 |
0
2
0