Palmer v Australian Capital Territory (No 2)
[2023] ACTSC 340
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Palmer v Australian Capital Territory (No 2) |
Citation: | [2023] ACTSC 340 |
Hearing Dates: | 29 August 2022 – 5 September 2022 |
Decision Date: | 20 November 2023 |
Before: | McCallum CJ |
Decision: | I give judgment for the plaintiff in the sum of $159,654. |
Catchwords: | CIVIL LAW – intentional torts – claim for damages for assault and battery – where prisoner assaulted by corrections officer during the course of being extracted from his cell – where the prisoner was compliant with instructions and was not resisting the extraction – whether use of force necessary and reasonable – where the corrections officer in question did not give evidence at the hearing – inability of defendant to prove statutory defence based on authorised use of force in the management of prisoners PRACTICE & PROCEDURE – PLEADINGS – where defendant failed to plead its version of facts where that differed from the version of facts pleaded by the plaintiff – oral application to amend defence on second day of trial – consideration of case management principles |
Legislation Cited: | Civil Liability Act 2005 (NSW) s 5O Corrections Management Act 2007 (ACT) ss 7, 8, 9, 137, 138, 139, 140 |
Cases Cited: | AON Risk Services Australia v Australian National University [2009] HCA 27; 239 CLR 175 Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370 Taupau v HVAC Constructions (Queensland) Pty Ltd [2012] NSWCA 293 |
Texts cited: | Legislative Council Legal and Social Issues Committee, Parliament of Victoria, Inquiry into Victoria's criminal justice system (Parliamentary paper No 326, March 2022) |
Parties: | Paul Palmer ( Plaintiff) Australian Capital Territory ( Defendant) |
Representation: | Counsel D Richards ( Plaintiff) S Whybrow SC ( Defendant) |
| Solicitors Maliganis Edwards Johnson ( Plaintiff) ACT Government Solicitor ( Defendant) | |
File Number: | SC 208 of 2020 |
McCALLUM CJ:
These proceedings raise an important question as to the degree of force that can lawfully be used by corrections officers in the management of prisoners. The plaintiff, Mr Paul Palmer, was serving a lengthy sentence of imprisonment at the Alexander Maconochie Centre (the AMC). On 8 September 2017, after being kept in an overflow area of the prison for several days with no exercise area or shower facilities, he became angry and smashed the narrow window in the front door of his cell. Two other prisoners did the same thing at the same time. As a result, all three had to be moved to other cells.
Mr Palmer was removed from his cell by four corrections officers in what was termed a “hard extraction”. He did not resist. Indeed, it is common ground that he was “compliant” with all instructions given to him. The process of extracting him from the cell nonetheless involved the deliberate use of force, weapons, restraints and a physical hold intended to compel compliance by the infliction of pain. The four corrections officers entered Mr Palmer’s cell with a riot shield. Mr Palmer was kneeling on the floor facing the wall at that time. The first in was Officer Todd Ward, who pulled Mr Palmer away from the wall, spun him around and threw him to the floor. Two other officers then pulled Mr Palmer’s hands up behind his back while the fourth applied handcuffs. He was then pulled onto his feet with his hands still cuffed behind his back. He was escorted along a corridor and down two flights of stairs by Officer Ward and Officer Michael Psalia using a hold which involved the two officers wedging their arms underneath Mr Palmer’s arms, pushing his head down so that his upper body was perpendicular to his legs and pulling his arms up behind his back. The purpose of that hold is to create “a readily available lever to use pain as a compliance technique”. When Mr Palmer arrived at the downstairs holding area, he was made to kneel on the ground. As he was kneeling, his right arm up was jerked up sharply behind his back by Officer Ward.
Mr Palmer claims that, as a result of the hard extraction and the actions of Officer Ward, he suffered extreme pain, a significant injury to his right shoulder and ongoing mental harm. He claims damages for assault and battery from the Australian Capital Territory, which is responsible for the operation of the AMC and vicariously liable for the actions of corrections officers in the course of their employment. No adverse finding is sought against any individual corrections officer other than Officer Ward.
The Territory accepts that, outside the custodial setting, the conduct of Officer Ward would have constituted a series of unlawful assaults. However, it contends that a hard extraction was warranted in the circumstances. The principal issue in the proceedings is whether certain features of the hard extraction and the acts of Officer Ward were authorised by provisions of the Corrections Management Act 2007 (ACT), in which event the assaults would be lawful and no action for damages would lie.
Mr Palmer’s claim initially also included an allegation that the Territory had breached its statutory duties under the Corrections Management Act and had also breached the Human Rights Act 2004 (ACT). However, those claims were abandoned on the first day of hearing. The pleading also included an allegation of negligence. However, the case was run on the basis that the conduct of the corrections officers who effected the hard extraction was deliberate rather than negligent. Counsel for Mr Palmer did not address the issue of negligence in closing submissions. Accordingly, I have taken that aspect of the claim to have been abandoned.
Use of force – the statute
The Corrections Management Act acknowledges that the management of prisoners will at times properly require the use of force by corrections officers for purposes consistent with the objects of the Act. Part 9.7 of the Act prescribes the limits to the use of such force. Section 137(1) in part 9.7 provides that the Director-General must ensure, as far as practicable, that the use of force in relation to the management of detainees is always a last resort and always in accordance with that part of the Act. Section 138 authorises a corrections officer to use force that is “necessary and reasonable for this Act” but only if the officer believes, on reasonable grounds, that the purpose for which force may be used cannot be achieved in another way. Sections 139 and 140 impose further constraints on the use of force when it is applied. Those provisions are clearly directed to ensuring that prisoners are dealt with humanely and that prisoners and corrections officers alike are kept safe from harm in the prison environment.
Use of force – the reality
The uncontested evidence in this case illustrates the difficulty of achieving those objectives in a custodial setting in the circumstances and with the resources available at the AMC at the time of the events the subject of Mr Palmer’s claim. There was evidence that several prisoners were being kept in an overflow area of the prison at that time. That area was designed for use as a reception area but was being used for overflow for the management unit. The management unit was a higher security area for prisoners that posed a risk to themselves, other prisoners, staff or the safety and security of the centre. The fact that there was an overflow of such prisoners and the need to accommodate them (whether temporarily or indefinitely) in a different part of the prison must have been challenging and stressful for both the prisoners and the corrections officers concerned. It has been acknowledged that imprisonment is often “seriously detrimental for the prisoner” and can exacerbate behavioural problems: Boulton v The Queen [2014] VSCA 342; 46 VR 308 at [108]-[109] (Maxwell P, Nettle, Neave, Redlich and Osborn JJA).
There was evidence that one of the prisoners kept in the overflow area had severe mental health issues and was at times at significant risk of self-harm, while another had refused to return to his cell in the overflow area earlier that day. Custodial isolation and overcrowding risks exacerbating mental illness, as noted in the Inquiry into Victoria’s Criminal Justice System (2022) at pg 594 (cited in the Bugmy Bar Book chapter on “Impacts of Imprisonment and Remand in Custody”):
Practices such as use of isolation, restricting visits from family and friends, overcrowding, poor access to health services and programs, and negative interactions with correctional officers have a significant impact upon mental health. The psychiatric impacts of prison are particularly acute for Aboriginal and Torres Strait Islander people. For example, Aboriginal women in prison are hospitalised for mental illness at triple the rate of Aboriginal women in the community.
There was evidence that prisoners sometimes conceal dangerous weapons including “shivs”. At least some of the officers who dealt with Mr Palmer that evening knew that another corrections officer had been very severely assaulted at the AMC some time earlier. That assault did not involve any of the prisoners in the overflow area that evening and, importantly, Mr Palmer himself had never previously been violent towards any corrections officer. However, the institutional awareness of an earlier serious assault had heightened concerns held by corrections officers at the AMC for their own safety and that of their colleagues.
There was evidence that corrections officers come in all shapes and sizes including large, strong men and slight women. There was evidence that the AMC is well-staffed during the day (from 7:30am to 7:30pm) but has only a skeleton staff at night. At the time the three prisoners broke the observation windows in their cells, the day shift was coming to an end and many officers had already left for the day or were on their way out.
In short, the evidence made plain that the occasions when corrections officers may apprehend the need to use force to manage prisoners are many and varied and that the events of this evening presented a difficult management issue. The evidence also established that the force used against the compliant Mr Palmer was significant and degrading and that it caused him extreme pain and distress.
This dangerous, intractable tension between the rights of prisoners and the safety of corrections officers will continue so long as full-time imprisonment remains the primary form of punishment for serious offences and prisons continue to be overcrowded, under-resourced and unable to offer prisoners any real opportunities for education and reform.
Events captured on handheld footage
Mr Palmer broke the window of his cell with a plank of wood. It was obviously necessary as a result of that act to move him to another cell. Indeed, that appears to have been what he was hoping to achieve. He was angry and frustrated after being held for days in a bare cell in the overflow area isolated from his usual prison community and facilities.
The most senior corrections officer on duty at that time was Officer Rod Kent. He made the decision to effect a “hard extraction” (an extraction of a prisoner from a cell with the use of force). The events that followed were captured on CCTV and handheld camera footage and were largely not in dispute. The events seen on the handheld footage (part of ex 1) may be summarised as follows.
Officer Kent spoke to Mr Palmer through the broken front viewing window of the cell. He instructed him to get up off his bed, turn around and face the wall, and get down on his hands and knees (Mr Palmer’s recollection was that he got onto his knees facing the wall with his fingers interlocked behind his head). Officer Kent told Mr Palmer to stay on the ground as they removed him from the cell and warned “any sudden move will be taken as a form of aggression and force will be used, do you understand?”. Mr Palmer indicated throughout that process that he understood Officer Kent’s instructions. He complied with them.
The four officers who entered the cell were Officer Ward (who was carrying a plastic riot shield), Officer Elliot Davis, Officer Cristy Sarri and Officer Psaila (in that order). The footage shows that the first three officers entered the cell very quickly. Officer Sarri had to break into a jog to keep up. What happened next was clearly captured on the video. Officer Ward pulled Mr Palmer away from the wall, spun him around and threw him onto the floor facing towards the door. He pinned him to the floor by placing his hand on the back of Mr Palmer’s neck. All three male officers then surrounded Mr Palmer on the ground, forcing his hands up behind his back while Officer Sarri applied the handcuffs.
Mr Palmer was then pulled up by the arms as he got to his feet. Viewing the men from behind, Officer Psaila was on the left and had Mr Palmer’s left arm while Officer Ward was on the right and had Mr Palmer’s right arm. Officer Psaila wedged his right arm up underneath Mr Palmer’s arms and placed his left hand on the highest point of Mr Palmer’s back, pushing his head down towards the floor. Officer Ward did the same on the other side. That hold was referred to during the hearing as the “head-down-arms-up hold”. It forced Mr Palmer’s body down to a right angle or beyond so that his torso was perpendicular to his legs and his arms, still cuffed behind his back, were raised in the air behind his head.
Mr Palmer was escorted in that position along the landing, down the stairs of the cell block and along a further corridor. During that time he can be heard crying “argh!” and “fuck!” in clear expressions of pain. He was taken to the far-most corner of the cell-block where there was a caged area apparently referred to as a yard. As Mr Palmer was lowered to his knees in the corner of the yard, Officer Ward jerked Mr Palmer’s right arm upwards, above his head, for no apparent reason. Mr Palmer again cried out in pain.
The handheld footage is harrowing to watch. It reveals that the hard extraction involved a significant degree of violence, by which I mean the use of force in a manner that was certain to, and clearly did, cause pain. That was openly accepted to be the very purpose of the head-down-arms-up hold. Mr Palmer was crying out and in obvious pain and distress at times during the incident. As already explained, the use of that degree of force, inflicting significant pain as it obviously did, was not authorised unless it was reasonable and necessary for the purpose of removing Mr Palmer from one cell to another and the officers believed on reasonable grounds that that purpose could not be achieved another way.
Allegations of unauthorised force made by Mr Palmer
As I will explain, by the conclusion of the hearing, the particulars of the alleged unauthorised force had been narrowed to the following:
(1) the use of handcuffs to secure Mr Palmer’s hands behind his back;
(2) Officer Ward’s act of forcibly pulling Mr Palmer away from the wall, spinning him around, throwing him to the ground in the opposite direction and pinning him to the ground while the handcuffs were attached;
(3) Officer Ward’s use of the head-down-arms-up hold while Mr Palmer was being escorted to the yard; and
(4) Officer Ward’s act of jerking Mr Palmer’s right arm up sharply behind his back as he was kneeling on the ground in the yard.
Before turning to consider those matters, it is necessary to clarify one further issue arising from the pleadings.
Rejection of the Territory’s broader case
Section 139 of the Corrections Management Act confines the lawful use of force to “no more force than is necessary and reasonable in the circumstances”. The circumstances pleaded in Mr Palmer’s originating claim were confined to the use of force directed against him in response to his own admitted act of breaking the glass in the viewing window of the cell he was in.
On the first day of the hearing, Mr Whybrow SC, who appeared for the Territory, opened the defence case by outlining a broader version of facts which included reference to the conduct of other prisoners at the same time. Mr Richards, who appeared for Mr Palmer, raised a concern as to two particular statements made in opening by Mr Whybrow:
(1) that the decision to conduct a hard extraction of the plaintiff from cell 19 was in response to a “co-ordinated attack” on the facility by a number of inmates; and
(2) that the reason for handcuffing Mr Palmer was because he was being taken to the exercise yard where those other inmates were also being taken.
Mr Richards submitted that those contentions, if maintained, should have been pleaded. He relied on r 443(5) of the Court Procedures Rules 2006 (ACT) which provides that, in proceedings for damages for personal injury, “if the defendant wishes to prove a version of facts different from that alleged in the originating claim or statement of claim, the defendant must plead that version in the defence”.
Mr Whybrow submitted that the version of facts presented in his opening was pleaded in the following part of the defence:
30. In response to paragraph 3.2 of the Claim the defendant:
a. admits that the defendant by the actions of the corrections officers used force;
b. denies the force was excessive
c. says that force was appropriate and reasonable in all the circumstances;
d. Otherwise denies the matters alleged.
(Emphasis added.)
Mr Whybrow submitted that the pleading that the officers used such force as was appropriate and reasonable “in all the circumstances” was adequate to capture the version of facts on which he had opened, that force was used in response to “coordinated conduct on the part of prisoners”.
I did not accept that submission. As already noted, Mr Palmer’s pleaded case is that the decision to extract him from his cell was made in response to his own act. The defendant’s contention that the decision was made in response to a coordinated attack on the facility by a number of prisoners of whom Mr Palmer was one presents an entirely different version of facts.
To plead that the force used was “appropriate and reasonable in all the circumstances” does no more than echo a legal test (I note that the statutory test is in fact whether the force was necessary and reasonable but nothing turns on that for present purposes. I accept that the defendant intended to plead the test in s 138). The phrase “in all the circumstances” pleads no facts at all. No defendant, let alone a model litigant (as the Territory is), could sensibly think a plea in such generic terms complied with the requirement of r 443(5). The whole point of the rule is to ensure that plaintiffs in personal injury proceedings know the case with which theirs will be met and are not subjected to trial by ambush.
On the second day of the hearing, Mr Whybrow made an oral application for leave to file an amended defence. I rejected that application, reserving my reasons. My reasons for that ruling are set at the end of this judgment.
Accordingly, the issues in the case are confined to whether the force used against Mr Palmer was authorised in the circumstances having regard to his admitted conduct of breaking the glass in the viewing window of his cell. That is not to say that every surrounding detail must be ignored; only that Mr Palmer is not required to meet the broader case opened by Mr Whybrow.
Narrowing of the issues by admissions and concessions
Officer Ward is no longer a corrections officer. He could not be located for service of a subpoena and did not attend Court to give evidence. Accordingly, as to any assault on Mr Palmer by him, the Territory was unable to prove the subjective elements in s 138 of the Corrections Management Act (that he believed that the purpose for which force was to be used by him could not be achieved in another way and his grounds for holding that belief). In those circumstances, on day 5 of the hearing, the Territory made limited admissions of liability in relation to two discrete acts of Officer Ward as recorded in the following exchange:
MR WHYBROW: Your Honour, it’s been of some benefit to have us come back at 3.45. I have instructions to admit all liability for the Territory in relation to the unilateral applications of force by Officer Ward.
HER HONOUR: Officer Ward.
MR WHYBROW: At the beginning when he moves Mr Palmer and the twisting motion to the ground. And in relation to the jerking of his arm at the end on the basis that, given our onus, that the Territory would not be able to satisfy the onus that those applications of force, that otherwise prima facie amount to an assault, were reasonable and necessary.
The admission was repeated in slightly different terms in the written submissions where the Territory conceded that it could not be established that:
[T]he force used by Officer Ward that led to the plaintiff being turned around within the first 2-3 seconds of contact inside the cell or the jerking of the arm in the holding cell was reasonable and necessary.
In closing submissions, counsel for Mr Palmer in turn indicated by way of concession that Mr Palmer would not be seeking findings that all officers who used force did so in breach of s 138 of the Act. Counsel stated that he had no reason to question the evidence of Officers Psaila and Sarri that they believed Mr Palmer was a non-compliant detainee. The principal reason Officers Psaila and Sarri believed Mr Palmer was a non-compliant detainee was that Officer Ward’s act of pulling Mr Palmer from the wall, spinning him around, throwing him to the ground and pinning him down created the appearance of a violent struggle. Officers Psaila and Sarri believed, not unreasonably, that Mr Palmer must have done something aggressive himself to warrant such aggression from Officer Ward. Officer Sarri gave the following evidence:
MR RICHARDS: If I – thank you. If I understood your – or I understand your earlier evidence, you presumed that if Mr Palmer remained compliant and did not move then what ultimately occurred would not have happened, he would not have been thrown on the floor. Is that what you presume?---Yes, like yes.
The second officer into the cell, Officer Davis, also did not give evidence. The significance of his absence is considered below.
The statutory regime
As already noted, the use of force in corrections management is governed by part 9.7 of the Corrections Management Act. That part contains six sections. Section 137 is concerned with the management of force and speaks to the Director-General:
137 Managing use of force
(1)The director‑general must ensure, as far as practicable, that the use of force in relation to the management of detainees is always—
(a) a last resort; and
(b) in accordance with this part.
(2) Without limiting section 14 (Corrections policies and operating procedures), the director‑general must make a corrections policy or operating procedure in relation to the use of force, including provision in relation to the following:
(a) the circumstances, and by whom, force may be used;
(b) the kinds of force that may be used.
Mr Palmer sought to prove that the Director-General has not made a corrections policy or operating procedure in relation to the use of force. There was a document in evidence that appears to meet the description of an operating procedure in relation to the use of force but even if there was no such document, it would not follow, as counsel for Mr Palmer appeared to contend, that any individual instance of use of force was not authorised under the Act. That is not the operation of the legislation. As already noted, the use of force is governed by s 138, which is directed to the conduct of individual corrections officers. That section provides:
138 Authorised use of force
(1) A corrections officer may use force that is necessary and reasonable for this Act, including for any of the following:
(a)to compel compliance with a direction given in relation to a detainee by the director‑general;
(b) to act under section 126 (Searches—use of force);
(c) to prevent or stop the commission of an offence or disciplinary breach;
(d) to prevent the escape of a detainee;
(e) to prevent unlawful damage, destruction or interference with property;
(f) to defend the officer or someone else;
(g) to prevent a detainee from inflicting self-harm;
(h) anything else prescribed by regulation.
(2) However, a corrections officer may use force only if the officer believes, on reasonable grounds, that the purpose for which force may be used cannot be achieved in another way.
Upon analysis, the section specifies four elements that must exist for the use force by a corrections officer to be authorised.
The first is the purpose for which force is used. The wording of that part of the section is curious: s 138(1) states that a corrections officer “may use force that is necessary and reasonable for this Act”. It is possible that words are missing before the qualifying phrase “for this Act”. Whether or not that is the case, it is clear enough that the section should be construed only to authorise force that is necessary and reasonable for a purpose consistent with the functions and duties conferred under the Act. The list of purposes set out in the balance of the section is inclusive, not exhaustive. Mr Palmer did not suggest that the purpose of removing him from his cell after he broke the front window was not a proper purpose of the Act.
The second element, the content of which will be informed by the first, is whether the force used was “necessary and reasonable” for the purpose in question. That is an evaluative assessment, but it posits an objective test. The question under that subsection is not whether the particular officer thought the force used was necessary and reasonable, but whether it was objectively so.
The third element, raised by s 138(2), is whether the corrections officer who used force believed at the time force was used that the purpose for which it was used could not be achieved in another way. That is a question of fact as to the state of mind of the relevant officer.
The fourth question, also raised by s 138(2), is whether the officer had reasonable grounds for that belief. That requires identification of the grounds the officer in fact had in mind at the time force was used and, separately, an objective assessment of the reasonableness of those grounds in all the circumstances known to the officer.
Beyond a consideration of the Act as a whole, the broader context provided by the legislative history and any extrinsic materials is helpful “if, and in so far as, it assists in fixing the meaning of the text”: Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39].
The explanatory statement for the Corrections Management Bill stated by way of outline that the Bill was informed by human rights principles and jurisprudence and that the Bill’s provisions were “consistent with modern prison management”. The Act has a preamble, which is taken to be part of the Act: s 126(3) of the Legislation Act 2001 (ACT). The preamble is in the following terms:
1 The inherent dignity of all human beings, whatever their personal or social status, is one of the fundamental values of a just and democratic society.
2 The criminal justice system should respect and protect all human rights in accordance with the Human Rights Act 2004 and international law.
3 Sentences are imposed on offenders as punishment, not for punishment.
4 The management of imprisoned offenders, and people remanded or otherwise detained in lawful custody, should contribute to the maintenance of a safe, just and democratic society, particularly as follows:
(a) by ensuring justice, security and good order at correctional centres;
(b) by ensuring that harm suffered by victims of offenders, and their need for protection, are considered appropriately in making decisions about the management of offenders;
(c) by promoting the rehabilitation of imprisoned offenders and their reintegration into society;
(d) by ensuring that imprisoned offenders and people remanded or otherwise detained in lawful custody are treated in a decent, humane and just way.
In addition to the explicit reference to the Human Rights Act, the language of the preamble indicates that the Corrections Management Act is to be construed in a manner that is coherent with a recognition of the dignity and value of the lives of prisoners and corrections officers alike. Clause 2 of the preamble puts that beyond doubt.
It is necessary also to consider the provisions of ss 7, 8 and 9 of the Act, which state the main objects of the Act and mandate the management of correctional services in a manner calculated to achieve those objects:
7 Main objects of Act
The main objects of this Act are to promote public safety and the maintenance of a just society, particularly by—
(a) ensuring the secure detention of detainees at correctional centres; and
(b) ensuring justice, security and good order at correctional centres; and
(c) ensuring that detainees are treated in a decent, humane and just way; and
(d) promoting the rehabilitation of offenders and their reintegration into society.
8 Management of correctional services
Correctional services must be managed so as to achieve the main objects of this Act, particularly by—
(a) ensuring that public safety is the paramount consideration in decision-making about the management of detainees; and
(b) ensuring respect for the humanity of everyone involved in correctional services, including detainees, corrections officers and other people who work at or visit correctional centres; and
(c) ensuring behaviour by corrections officers that recognises and respects the inherent dignity of detainees as individuals; and
(d) ensuring that harm suffered by victims, and their need for protection, are considered appropriately in decision-making about the management of detainees.
9 Treatment of detainees generally
Functions under this Act in relation to a detainee must be exercised as follows:
(a) to respect and protect the detainee’s human rights;
(b) to ensure the detainee’s decent, humane and just treatment;
(c) to preclude torture or cruel, inhuman or degrading treatment;
(d) to ensure the detainee is not subject to further punishment (in addition to deprivation of liberty) only because of the conditions of detention;
(e) to ensure the detainee’s conditions in detention comply with section 12 (Correctional centres—minimum living conditions);
(f) if the detainee is an offender—to promote, as far as practicable, the detainee’s rehabilitation and reintegration into society.
Where the use of force is authorised under s 138, its application is further constrained by s 139. That section provides:
139 Application of force
(1) A corrections officer may use force under this part only if the officer—
(a) gives a clear warning of the intended use of force; and
(b) allows enough time for the warning to be observed; and
(c) uses no more force than is necessary and reasonable in the circumstances; and
(d) uses force, as far as practicable, in a way that reduces the risk of causing death or grievous bodily harm.
(2) However, the corrections officer need not comply with subsection (1) (a) or (b) if, in urgent circumstances, the officer believes, on reasonable grounds, that doing so would create a risk of injury to the officer, the detainee or anyone else.
It may be seen that while the requirement to give a warning of the intended use of force may be suspended in urgent circumstances, the constraint to use “no more force than is necessary and reasonable in the circumstances” always applies.
While “use of force” is not defined in the Act, s 140(1) makes clear that the use of force includes the use of restraints and weapons. Section 140(5) expressly authorises corrections officers, when applying force in accordance with the Act, to use handcuffs and riot control equipment (among other things).
Evidence and findings as to the use of force
Mr Palmer gave evidence that, from the morning of 8 September 2017, he and another inmate, Cedric Roberts, were housed in the cell block known as “Sentence Unit 1”. Mr Roberts lit a fire in that cell, as a result of which both Mr Palmer and Mr Roberts were transferred to separate cells. Mr Palmer was placed in cell 19. He did not struggle or resist when being moved to that cell.
Mr Palmer remained in cell 19 for about two or three hours before the hard extraction. He said there was nothing in that cell except for a mattress with a sheet and a hospital blanket. He agreed that he felt angry and agitated that he had been moved into an isolated cell and also in relation to what he perceived to be unfair treatment earlier of another inmate, Mr Fort, by corrections officers.
Mr Palmer said that, at some point, he heard glass shattering and realised that Mr Roberts had smashed the front viewing window of his cell. He said that Mr Roberts was “taken out the nice way” (that is, without the use of force) and then Mr Palmer broke his window by smashing it with a plank of wood. Mr Palmer was cross-examined about the fact that the report of Ms Kerrianne Abbott, the psychologist retained by Mr Palmer for the purpose of these proceedings, recorded that the plank of wood was one Mr Palmer had broken off his own bed. Mr Palmer steadfastly denied having broken the plank off the bed. He maintained it was already broken off. It is possible that Ms Abbott misheard or misunderstood what she was told. This is not a central point and I make no finding either way. The point is that there must have been a plank of wood loose in the cell but that must also have been the case for Mr Roberts.
After approximately 20-30 minutes, Officer Kent spoke to Mr Palmer through the glass and gave him a single warning. The words used as recorded on the video are summarised earlier in this judgment. Mr Palmer recalls words to the effect “get to the wall. Don’t move. Any movement will be taken as a threat”.
Mr Palmer said he “complied straight away”. No witness contradicted that evidence. Furthermore, while Mr Palmer cannot be seen in that part of the video (because the door is still closed), there is nothing on the footage to suggest he was other than compliant. Officer Kent can be seen watching through the window to ascertain compliance after each separate instruction (“get up off the bed”, “face the wall”, “get on your hands and knees”). After giving each instruction and warning clearly and quickly, Officer Kent opens the door and moves aside. I am satisfied that Mr Palmer complied immediately with the directions given to him by Officer Kent, as recorded on the video, and that he was on his knees facing the back wall when the corrections officers entered the cell.
Mr Palmer described what happened next:
When they come in – when I was on my knees …(inaudible)… my fingers at the back of the cell, when they’ve come in like, I should’ve braced myself because I wasn’t directly against the wall. Like I – and I bounced – so when they’ve hit me I’ve bounced off the – into the wall. Like, my body was up to it but my head was, you know, like this far off the wall and when they’ve come in and I’ve bounced off the wall and thrown on the ground and twisted up and stuff and then taken out, yes, so that’s - - -
He confirmed that it was his head that bounced off the wall.
Mr Palmer still had his back to the officers at that point. He said:
I was grabbed by – I can't say how many but there was more than one that grabbed me and turned me from the – off the wall and just straight down on the ground, like, face-down.
He said:
[O]nce they grabbed hold of me physically, they just spun me around and then just dropped on me with all their weights and then just each just grabbed an arm and they went to town.
The footage shows that those events unfolded very quickly. Officer Ward can clearly be seen on the video moving directly to the back of the cell, physically pulling Mr Palmer away from the wall, spinning him around and throwing him to the ground. When he gets Mr Palmer onto the ground, Officer Ward holds the back off his neck down hard, pushing it into the ground, as shown in this still shot of the video:
The corrections officer immediately behind Officer Ward was Officer Davis. It is difficult to see his acts clearly on the video as the line of sight is obscured, partly by Officer Ward and partly by Officer Psaila (who is standing directly in front of the camera). Officer Davis was certainly involved in holding Mr Palmer face-down on the ground once he had landed there but it is difficult to see what role he played, if any, in pulling Mr Palmer away from the wall and spinning him onto the ground. That appears to have been primarily the act of Officer Ward. Officer Davis may have assisted in that act but I cannot be satisfied of that on the balance of probabilities.
Mr Palmer said the officers then grabbed his arms, twisted them behind his back and applied handcuffs. That is confirmed by the video. Mr Palmer is crying out in pain at that point and it is not difficult to see why. He has three large men pinning him to the ground and pulling his arms up high behind his back to position them for handcuffing by the female officer.
Mr Palmer was then lifted from the ground and taken along the landing, down the stairs and into the exercise yard. He said he experienced severe pain in one shoulder while he was being walked along the landing and that the pain intensified as he was being taken down the stairs. He described it as an 8, 9 or “maybe even 10” out of 10 level of pain. Mr Palmer was then walked along a corridor on the floor below and taken to an exercise yard. He recalls Officer Psaila and Officer Ward saying words to the effect: “[w]e’re going to place you on the knees. Face the corner on your knees. Don’t turn around. We’re going to sit you down here”. He then recalls, as he was lowered to his knees, that his right arm was pulled up by Officer Ward and his head went into the cage that surrounds the yard area. The video confirms that Officer Ward yanked Mr Palmer’s arm up behind his back at that time. Mr Palmer said that he did not resist at any point in the extraction. That is confirmed by the video which shows no resistance at any point.
The Territory mounted a substantial attack on Mr Palmer’s credibility, primarily in relation to his account of his injuries and ongoing symptoms. In light of the admissions and concessions to which I have referred, and the video evidence, the issue of credit is of little significance on the question of liability.
Turning to the evidence in the defence case, the most senior officer involved in moving Mr Palmer was Officer Kent. He gave evidence that he entered Sentence Unit 1 that evening to find that a number of inmates had smashed the front viewing window of their cells. He observed that there was shattered glass across the floor. Mr Palmer clearly had to be moved to another cell in those circumstances.
Officer Kent made the decision that the move would be effected by means of a hard extraction. Mr Whybrow opened his case by saying this meant that, even if Mr Palmer was compliant, he would not be taken out “the nice way as opposed to the hard way”. At one point, Mr Whybrow appeared to submit that the decision to effect a hard extraction was of itself determinative of the issue whether the use of force was necessary, because that is what a hard extraction is; an extraction by force. But the question whether the force used against Mr Palmer was “necessary and reasonable” within the meaning of s 138 of the Corrections Management Act cannot be determined by that reasoning, which is circular. It is no answer to the use of force to say that force was necessary for the purpose of achieving a purpose by the use of force. Section 138 authorises only the use of force that is necessary and reasonable for a purpose of the Act. The question here is whether the force used was necessary and reasonable for the purpose of getting Mr Palmer out of his cell and taking him to another cell.
In any event, returning to the evidence, Officer Kent said he understood that, as a level 3 corrections officer, he had authority to order a hard extraction by delegation of the Director-General. However, there was no evidence of the existence of any such delegation. It will be necessary to return to that issue.
While he could not recall details, Officer Kent said that he always gave a briefing beforehand to officers involved in a hard extraction. His regular briefing included an instruction to handcuff the prisoner. I am satisfied that instruction was given on this occasion as Officer Sarri remembered that that was to be her role. Officer Kent explained that handcuffs are used to address the risk of non-compliance, the possibility of possession of a prison-made weapon and Officer Kent’s duty to protect his staff and keep them safe during the extraction. He also explained that there was only a small number of officers on nightshift and that was a relevant factor in his decision.
Officer Kent said that Sentence Unit 1 houses two types of detainees: those freshly admitted into custody at the AMC and overflow from the management unit, being prisoners who have been noncompliant. He took that into account when dealing with detainees in Sentence Unit 1. He said that, at the time of the extraction, he held concerns that Mr Palmer may be attempting to escape. He agreed that Mr Palmer’s back cell window was five metres above ground level but explained that detainees have in the past created homemade ropes from blankets and sheets to climb through windows.
Officer Kent’s recollection of the cell extraction itself was consistent with the handheld camera footage. He confirmed that he gave Mr Palmer a single warning. He agreed that Mr Palmer complied with the instruction he gave and that the back window of the cell was not broken when the other officers entered the cell. Officer Kent did not himself enter the cell and is not alleged to have assaulted Mr Palmer in any way.
I have already noted that Officer Davis did not give evidence. He was served with a subpoena and attended Court to give evidence. He remained available for the first three days of the hearing. By the fourth day, he was on annual leave. The Court was informed that he had set off on a long-planned trip to ride his motorcycle across the Simpson Desert. He could not be contacted by telephone after that time. Mr Whybrow tendered an incident report prepared by Officer Davis (ex 4). However, that report does not shed any light on the issues for my determination.
Mr Palmer submitted that, in accordance with the principle in Jones v Dunkel (1959) 101 CLR 298, the Court should draw an inference that Officer Davis’s evidence would not have assisted the defendant’s case. I am not inclined to draw that inference in the circumstances. The officer’s absence was explained. There is no reason to conclude that his departure was strategic. It is unfortunate that the prospect of his impending absence on leave was not raised in a timely way. Had it been raised, his evidence could have been interposed or dealt with at another time, but I doubt I would have stopped him from riding across the Simpson Desert. Front line workers need to be allowed to take their scheduled recreational leave. In any event, in light of the narrowed issues in the case, the inference that Officer Davis’s evidence would not have assisted the defendant’s case does not assist Mr Palmer’s case much, if at all.
The third in was Officer Sarri. She gave evidence that she received a “panicked” radio call from an officer at Sentence Unit 1 raising a Code Green alarm, which is the code used for attempted escapes. She said she was “terrified” as she ran to the relevant area. When she arrived at Sentence Unit 1, she was asked by Officer Ward to join a team of officers to extract an inmate from his cell.
Officer Sarri explained her understanding of the “usual procedure” for cell extractions in the following evidence:
Now when you have used the term 'cell extraction', what does that encompass? Is it the same thing every time or what do you mean?---No. It's generally going in to extract a person out of the cell who is being non-compliant.
Okay, and what, in your experience, opportunity are they given to indicate compliance?---Yes, so in my experience there's usually a negotiator at the door or team leader or someone who's running the operation that will negotiate with the detainee and give them opportunity to present themselves at the door to be removed compliant – like, in compliance and if not, then usually we'll go in and use force to gain compliance and remove them from that cell.
Mr Palmer was not given an opportunity to present himself at the door “in compliance”. As already explained, however, he was compliant before the officers entered the cell. There was no need in his case to use force to “gain compliance”.
Officer Sarri was given instructions at the briefing that her role would be to handcuff the detainee and possibly also remove the riot shield from the cell. She did not understand that there was to be a use of force irrespective of Mr Palmer’s indicated compliance. She understood they were “just on standby” and that “however the negotiation played out would determine what – how we went in and how he was removed out of the cell, whether he gave himself up or we would be going in”.
Officer Sarri said she did not see anything at the beginning of the cell extraction. She was positioned tightly behind the other officers as they entered the cell and just heard “crashing and bashing”. She did not see how Mr Palmer made his way onto the ground. Consistent with the handheld camera footage, she remembers going around to the back of Mr Palmer and applying the handcuffs once the other officers had brought his hands behind his back.
The last in was Officer Psaila. He received a radio message from another officer “yelling” that there were several detainees attempting to break out of the back of Sentence Unit 1 and escape. He was in the presence of Officer Tracey Psaila (his wife), Officer Kent and Officer Ward at that time. At Sentence Unit 1, he noticed that the front viewing panels of several cells had been broken. He could hear detainees and corrections officers yelling. He understood the glass of the front viewing panels to be armoured glass. From his past experience as a glazier, he did not believe such glass could be broken with a human fist. He therefore assumed the inmates must have weapons of some kind.
Officer Psaila said the decision was made to “go in, use the shield, cuff them, secure them, get them down the stairs, out of the glass and outside”. He said he did not go into the cell extraction knowing that he would use force. He understood his role to be the officer that removes the shield from the cell to make space after the first officer in has cast it aside.
The first thing that Officer Psaila recalled seeing when he entered the cell was that Mr Palmer was face-down on the floor with his head facing towards the cell door, that is, facing away from the back wall of the cell. The video shows that Officer Psaila walked in more slowly than the other three. I accept that he would not have been in a position to see how Mr Palmer came to be in the position he was in, face-down and facing towards the door. Officer Psaila said that was inconsistent with the usual procedure, which is to face the detainee down in the direction in which he is kneeling. Officer Psaila assumed on that basis that Mr Palmer must have been non-compliant. Because he thought Mr Palmer was resisting, Officer Psaila assisted in twisting Mr Palmer’s arms behind his back to allow another officer to apply handcuffs. He assumed one of the other officers stepped in to remove the shield.
After getting Mr Palmer off the floor, Officer Psaila used the lever hold to walk Mr Palmer along the landing and down the stairs. He explained that this hold was used to protect himself and the prisoner from falling over. He said the reason for pushing Mr Palmer’s head down towards the floor was to ensure that neither officer got headbutted or spat on.
Officer Psaila gave the following evidence in chief:
Given he had indicated a willingness to comply, once he had been handcuffed was there some reason why you did not walk him out like you may have walked out another person at another time?---No. At that time of night with – that we weren't taking any chances because of the number of staff we had. So for – the best way to get down the stairs with Mr Palmer was to do that hold and that way me and Mr Ward were able to hold the handrail just in case you tripped or something going down the stairs
In cross-examination, Officer Psaila agreed that he could have escorted Mr Palmer from his cell without the use of that hold. However, he said that was “not an option” in the circumstances because he “didn’t know whether he was going to be violent or not”. Officer Psaila accepted that Mr Palmer had never been violent towards him and that he was not aware of Mr Palmer’s history of compliance either way at the AMC. Having seen the video, I have no doubt Officer Psaila’s concerns about the risk of violence were heightened by the appearance of a struggle with Officer Ward at the outset of the extraction.
On the strength of the video footage, the evidence of Mr Palmer, the evidence of Officers Sarri and Psaila and the Territory’s admissions, I am satisfied on the balance of probabilities and in terms of the findings contended for by Mr Palmer that he was subjected to the following acts of force:
(1) that Officer Ward rushed into the cell, collided with Mr Palmer causing his head to bounce off the wall, grabbed him with both arms and physically pulled him away from the wall, spun him around 180 degrees, threw him to the ground and pinned his head to the ground for a few seconds by pushing the back of his neck into the ground;
(2) that Mr Palmer was then handcuffed with his hands behind his back;
(3) that Officers Ward and Psaila pulled Mr Palmer’s arms up as he got to his feet and had him in a continual head-down-arms-up hold while they walked him along the corridor, down the stairs and along another corridor before placing him on his knees on the ground in the yard causing him significant pain; and
(4) that Officer Ward gratuitously jerked Mr Palmer’s arm upwards as Mr Palmer was being lowered to his knees in the yard.
I am satisfied that each of those acts of force constituted an assault sounding in damages unless authorised by s 138 of the Corrections Management Act. That section operates by way of defence. The onus of proof of the elements of the section is on the Territory.
Whether the degree of force used was authorised
Both parties called expert evidence on the issue of whether the use of force was necessary and reasonable. Before turning to that evidence, it is appropriate to sound a note of caution. While I accept that the use of force in a custodial setting is an area of specialised knowledge, expert evidence on that issue should not be adopted as a proxy for the evaluative assessment required to be made by the Court. I am not bound to accept the evidence of any expert on that issue. The difficult question as to what degree of force is necessary and reasonable for any particular purpose of corrections management will always depend very much on the individual circumstances of the case, as established by the totality of the evidence in the case, which will rarely be comprehensively captured in the instructions to an expert. The determination of that question also requires the Court to consider the full range of matters that are relevant on the proper construction of the statute. That is a legal question, not a matter for expertise.
The statute requires the Court to place a high value on the importance of protecting prisoners from violence and injury. As already explained, it also acknowledges that the use of force will be necessary in some circumstances. In assessing the need for force on any particular occasion, the Court must pay careful attention to the circumstances faced by the particular custodial officers involved in the context of their regular experience of themselves being exposed to violence and injury in the discharge of their functions.
Returning to the expert evidence, Mr Palmer sought to lead evidence from Mr Paul Stephens. The Territory objected to his evidence on the ground that, while he was experienced in the use of force in the broad field of security, he did not have relevant training, study or experience in the use of force in the custodial setting. The course I took during the hearing was to permit Mr Stephens to participate in the joint evidence of the two experts, reserving my decision as to its admissibility. In the result, I have concluded that I should not admit Mr Stephens’ evidence because he does not have the appropriate expertise.
Mr Stephens was cross-examined as to his expertise on the voir dire. The cross-examination confirmed that, apart from undertaking one module on the use of force as part of his Diploma of Security Risk Management, Mr Stephens does not have relevant study, training or experience in the use of force in a correctional setting. The one module he did undertake was concerned with the use of force more generally, not within the custodial setting.
Accordingly, I reject his evidence and have not considered it in determining Mr Palmer’s claim.
The specialised knowledge of Professor Alpert, the defendant’s expert witness, was not disputed. However, as already explained, it does not follow that I am obliged to accept his opinion as to what was reasonable or necessary in the circumstances of this case.
Professor Alpert’s opinion was that the use of force is authorised to prevent unwarranted or threatened action by detainees, and to respond to resistance by those who do not follow lawful orders. Professor Alpert explained that the AMC adopts a situational use of force model: a policy that allows officers to decide whether to use force, and adopt the type and extent of force, that is reasonable in the totality of the circumstances. He stated that it is important that officers not use too much force, but equally that they use enough force to ensure their own safety.
In determining whether the use of force against Mr Palmer was reasonable and necessary, Professor Alpert said it was relevant to consider whether the officers were on notice of possible resistance, that Mr Palmer had been involved in an earlier altercation in Cell 4, and whether Mr Palmer was compliant.
Professor Alpert was of the opinion that the use of force in the cell extraction element of the handheld footage – entering Mr Palmer’s cell, turning him onto the ground, applying cuffs and lifting him from the ground with his hands behind his back – was reasonable and necessary in the circumstances, and was proportional to the job that needed to be done: to remove Mr Palmer from his cell. In the joint expert report, Professor Alpert stated that, when the officers entered the cell, Mr Palmer was not controlled and the force used was necessary in order to gain control of Mr Palmer. That must be taken to be an assumption on which his opinion was based. The evidence was admitted without qualification and accordingly is admissible for all purposes in accordance with s 60 of the Evidence Act 2011 (ACT). However, for the reasons I have explained, I do not accept that Mr Palmer was “not controlled” when the officers entered his cell.
Professor Alpert was not provided with any relevant policies and procedures in relation to the hold used on Mr Palmer when walked across the landing and down the stairs to the exercise yard. Accordingly, he could not offer an opinion as to whether the actions were necessary. However, he did identify the hold as one he has seen used around the world as an extreme method of transporting someone who was potentially dangerous. He said the tactic of the forward hold is designed for officer safety. Professor Alpert acknowledged that there were alternative methods of transporting Mr Palmer that would cause less pain.
Professor Alpert expressed the opinion that the jerking of Mr Palmer’s arm by Officer Ward would only be justified if Mr Palmer was resisting. Otherwise, such force would be unreasonable, unnecessary and excessive. He noted that, on the material before him, he could not determine whether Mr Palmer was resisting. I am satisfied that Mr Palmer was not resisting at that time. Accordingly, based on my own assessment of the evidence and consistent with Professor Alpert’s opinion, I am satisfied that the jerking action was not authorised and so amounted to an assault.
Counsel for Mr Palmer submitted that, in light of the narrowed issues in the case, it was not necessary for the Court to rely on the expert evidence.
Mr Whybrow submitted that the Court should still have regard to Professor Alpert’s evidence. He was careful to note that the Territory’s admission was not an admission of assault but only an admission that one of the elements of the statutory defence could not be proved. The legal effect is the same. However, to be clear, having viewed the handheld camera footage many times and in light of my undisputed finding that Mr Palmer was completely compliant with Officer Kent’s instructions, I have no doubt that Officer Ward’s act when he entered the cell involved unnecessary and unreasonable force. I am further satisfied that Officer Ward’s act of jerking Mr Palmer’s arm upwards was deliberate, unnecessary and unreasonable. Professor Alpert did not suggest that the force used was necessary and reasonable on the assumption that Mr Palmer had not shown any resistance to being extracted from his cell.
Professor Alpert did not express an opinion as to the reasonableness or necessity of the head-down-arms-up hold used in escorting Mr Palmer from the cell to the yard. He explained that he did not have before him any policies and procedures relating to the transportation of prisoners.
The Territory submitted that the hold was reasonable and necessary to transport Mr Palmer while ensuring his safety and that of the corrections officers. It relied on the evidence of Officer Psaila that, if Mr Palmer was to fall, the forward hold would protect the officers from also falling; and vice versa. Officer Psaila also gave evidence that the hold is necessary to ensure the detainee does not spit on or headbutt the corrections officers.
While Professor Alpert did not express an opinion as to reasonableness and necessity, he did identify the hold as a technique used around the world. He explained that it was an “extreme method” of transporting detainees who are potentially dangerous.
I am not satisfied that the use of the head-down-arms-up hold was necessary and reasonable in the circumstances. In reaching that conclusion, I make no criticism of Officer Psaila. Based on his evidence and my viewing of the video, I accept that he believed, on reasonable grounds, that he was dealing with a prisoner who was struggling and resisting against being extracted from his cell. His perception of the risk posed by Mr Palmer was skewed by the contrived appearance of a struggle at the outset of the extraction.
Before Officer Ward entered the cell, there was no reason to think Mr Palmer could not be transported another way. As he lay face-down on the ground in the cell, it was Officer Ward who gave him the direction as to how he was to be transported. The whole incident escalated from the minute Officer Ward entered the cell. I am satisfied that the escalation was due to Officer Ward’s treatment of Mr Palmer when he entered the cell and the impression that conveyed to the other officers.
As already noted, Mr Whybrow at times submitted that the use of force was reasonable because this was a “hard extraction”, which means that compliant or not, the prisoner is not going to be taken out “the nice way”. I reject that submission for the reasons I have explained above. The use of force cannot be justified on the basis that there was a decision to use force. The most compelling witnesses on this issue were Officer Sarri and Officer Psaila. Neither entered the cell thinking or knowing they would use force; that was to depend on Mr Palmer’s conduct. It was Officer Ward who treated the need for force as a foregone conclusion. As a result of the Territory’s inability to prove that his use of force in the cell was necessary and reasonable (and my finding that it was not), I cannot be satisfied that what followed, particularly the manner of transporting Mr Palmer and the hold used, was necessary and reasonable.
Mr Palmer submitted, in the alternative, that the hard extraction of Mr Palmer was not necessary and reasonable because Officer Kent did not have delegated authority by the Director-General to order the hard extraction. In light of the foregoing conclusions, it is not necessary to address this alternative submission but I will address the point in case of error in my dispositive findings.
As already noted, Officer Kent believed he had delegated authority to order the hard extraction but that was not proved in the hearing before me. So far as I have been able to ascertain on the material before me, the question of delegated authority is irrelevant to the issues in proceedings. The Act authorises the use of force by any corrections officer, regardless of delegation, provided the force is used in accordance with the requirements of the Act.
Section 138 prescribes a non-exhaustive list of examples whereby force is considered reasonable and necessary. Among a list of several examples, is “under delegation of the director-general”: see 138(1)(a) of the Act. If the intention of the provision was that corrections officers were only to use force under delegation of the Director-General, the test of reasonableness and necessity, and the use of other examples, would effectively have no function within the provision.
The same argument was put forward by Mr Palmer in relation to the use of restraints and weapons. Mr Palmer submitted that, in order for an officer to use restraints and weapons in conformity with s 140(6), subsections (2)-(5) of that same provision must be complied with by the Director-General. Leaving aside the question of whether I am persuaded that the Director-General was in breach of those subsections in the use of handcuffs and a riot shield during the hard extraction of Mr Palmer, I do not interpret s 140 to apply in that way.
I do not accept Mr Palmer’s submission that the use of handcuffs, including handcuffs behind the back, is of itself unnecessary or unreasonable. That will always depend on the individual circumstances of the case. I would not seek to second guess the views of the corrections officers involved on this issue. However, I am not satisfied on the balance of probabilities that it was necessary to have Mr Palmer in the head-down-arms-up hold continuously over the entire distance from the cell to the yard.
Causation
Mr Palmer contends that the unlawful conduct of Officer Ward caused him to suffer:
(a) bruising and swelling to his head;
(b) glass lacerations to both of his legs and elbows;
(c) pain and injury to his body from being thrown to the cell floor;
(d) pain and injury to his shoulders and arms;
(e) a tear to his right supraspinatus; and
(f) Post traumatic stress disorder (PTSD) and adjustment disorder.
He seeks an award of damages in the sum of $242,434 or such other amount as the Court finds appropriate.
The Territory denies that the events surrounding the hard extraction caused any ongoing injury and that any damages awarded to Mr Palmer would be nominal.
Credibility of the plaintiff
The Territory submitted that Mr Palmer was not a credible witness and that his evidence as to his injuries should be treated with caution. Mr Whybrow submitted that Mr Palmer gave inconsistent evidence, changing his evidence to suit what he believed would advance his case. It was submitted on that basis that the Court should place no weight on any statement made by Mr Palmer that was not corroborated by independent evidence.
There are two difficulties with that submission. First, I do not accept it to be a fair characterisation of Mr Palmer’s evidence. While his evidence contained some inconsistencies, I do not think those inconsistencies were anything more than a reflection of the way memory and perception can change over time. I assessed Mr Palmer to be truthful. I consider he was doing his best throughout his evidence to give his best recollection or perception of the events he was being questioned about. Some of his answers may have been unreliable but I accepted his evidence as earnest and honest.
Secondly, as a general rule, it will be a rare case in which the Court can properly discharge its function of making an assessment of the evidence of any single witness by the approach of placing no weight on any statement made by that witness unless it finds corroboration in other evidence before the Court. In my respectful opinion, such an approach reflects outdated notions of credibility based on untested assumptions about the nature of memory and, often, unwarranted stereotypes about particular kinds of witnesses. Mr Palmer is not highly-educated and he was not a practised witness. Contrary to the Territory’s submission, I do not think he changed his evidence to say what would best suit his case. On the contrary, in my assessment, he was not astute to potential weaknesses in his evidence or inconsistencies as between one answer and the next. He simply answered each question as it came. At times, that produced anomalies in his evidence but that did not cause me to doubt his honesty. To the extent that it was relevant to my assessment of his reliability as a witness, confining that assessment to a search for corroboration is unhelpful. A more nuanced approach, in which any anomalies are analysed with an understanding of the circumstances of the witness at the time of the relevant event and at the time of giving evidence, is appropriate.
A particular criticism of Mr Palmer’s evidence was that he did not complain about his injuries to doctors, nurses, prison officials or lawyers. Mr Palmer gave a plausible explanation for that. He noted the general lack of privacy in the prison when he was visited by healthcare professionals. He also explained that he “didn’t want it to get out that [he] was whinging, sooking or you know, like that so I just – it was just best to keep it to myself”. Mr Whybrow strenuously tested that contention in cross-examination in terms suggesting that it was implausible. In my assessment, it is not at all surprising that a prisoner would try to be stoic rather than complain about injuries caused by a corrections officer. That makes perfect sense in the context of the prison environment as revealed in the evidence before me.
My understanding of Mr Palmer’s evidence is that he had concerns that, if he made complaints about the injuries sustained in the hard extraction, he might suffer repercussions and, to use his words, “cause trouble for [himself]”. It is unsurprising in that context that the first Mr Palmer complained of his injury was to his mother, Ms Julie Tongs, during a private visit to the AMC.
While a clinic is available at the AMC, Mr Palmer said “if you’re not dying, don’t fix it”. He said he did not want to be “constantly back and forth from the clinic”. He also explained that his participation in the AMC’s methadone program meant he was receiving pain relief regularly. When asked why he did not complain about his pain to nurses who administered his methadone, Mr Palmer explained that appointments are for the administering of methadone only and that it is not treated as an opportunity by inmates to air their unrelated health concerns. There is nothing inherently implausible about that. No evidence to the contrary was led by the Territory, which has ultimate responsibility for the AMC.
Mr Palmer agreed that he did not make a complaint about his shoulder to the nurse who treated him immediately following the hard extraction. He agreed that the report that he was “treated…for minor injuries and has not required any further assessment or treatment” was correct and accurate. However, that assessment was carried out in the yard, apparently while Mr Palmer was still handcuffed. Mr Palmer explained that he was aware that Winnunga Nimmityjah Health and Community Services, a First Nations community-controlled healthcare service, was to begin providing services at the AMC imminently and that he intended to wait for that to occur before seeking treatment. None of that is surprising in the prison context. Once Mr Palmer was taken on by Winnunga as a client, he was able to have an MRI conducted and seek diagnosis for his pain.
Mr Whybrow’s cross-examination of Mr Palmer did not cause me to doubt Mr Palmer’s credibility or reliability as a witness.
Physical injury
The most significant injury sustained by Mr Palmer, which he attributes to the hard extraction, is a tear to the supraspinatus in his right shoulder. Each party called evidence from an orthopaedic specialist about that injury. They agreed that Mr Palmer had suffered a partial thickness tear of the supraspinatus tendon in his right shoulder. He has also suffered associated subacromial bursitis, AC joint arthritis and subacromial spur.
Mr Palmer also claims to have suffered several more minor injuries in the process of the hard extraction including bruising and swelling to his head, glass lacerations on both legs and elbows, pain and injury to his shoulders and arms and pain and injury to his body more generally.
Mr Palmer’s claim initially included an allegation that he was hit in the back of the head with the riot shield. That allegation was not pressed in final submissions in light of the evidence. However, as outlined above, Mr Palmer did say that his head bounced off the wall as a result of impact with the corrections officers when they first entered the cell. On the strength of Mr Palmer’s evidence and the video footage, I am satisfied, as accepted by the Territory, that the hard extraction caused Mr Palmer temporary pain to his body and that he suffered glass lacerations on his legs and elbows. The principal matter in dispute is whether Mr Palmer experienced the injury to his shoulder as a result of the hard extraction.
The orthopaedic experts for Mr Palmer and the Territory, Dr Ridalgh and Dr Ruff respectively, gave joint evidence at the hearing. They agreed that it was uncommon for a tear of the kind suffered by Mr Palmer to occur as a result of degeneration to the shoulder in someone as young as him. Dr Ruff was nonetheless of the opinion, noting Mr Palmer’s history of working as a roofer, that the tear was a degenerative tear rather than one that occurred as a result of the hard extraction. Dr Ridalgh disagreed with Dr Ruff’s opinion. He explained that, if that were the case, the subacromial spur on Mr Palmer’s AC joint would be larger than was observed on the MRI scans.
Dr Ruff also expressed the opinion that the way in which Mr Palmer’s shoulders were rotated during the hard extraction would not cause a tear in the location of that found to have been suffered by Mr Palmer. Again, Dr Ridalgh disagreed. He explained that, if a person is rough enough and does not take care, they can cause damage to any part of the shoulder. He identified the area of the tendon as the most typical location for a tear. Dr Ridalgh was of the opinion that the tear was caused at some point during the extraction of Mr Palmer from the cell. However, he considered it was equally likely the tear occurred when Mr Palmer was being escorted to the yard as it was that the tear occurred from the jerking of Mr Palmer’s arm by Officer Ward. Mr Palmer’s evidence that his pain levels were equally excruciating when he was being walked down the stairs and when his shoulder was jerked in the exercise yard. He described the pain as something he was “never going to forget”. That is confirmed by his spontaneous cries of pain heard on the handheld camera footage.
The Territory submitted that Mr Palmer was an unreliable historian and that the unreliable symptomology he recounted to Dr Ridalgh contributed to Dr Ridalgh’s opinion. For the reasons already explained, I am satisfied that Mr Palmer gave Dr Ridalgh a truthful account of the pain in his shoulder during and following the extraction.
There is little evidence to suggest that Mr Palmer had suffered shoulder pain before the extraction. The onus of proving any relevant prior condition is on the Territory: Purkess v Crittenden (1965) 114 CLR 164 at 168. As I understood Dr Ruff’s evidence, he came to the conclusion that the tear was degenerative and was not caused by the hard extraction. However, Dr Ruff could not identify any aspect of Mr Palmer’s history that caused enough degeneration to his shoulder to cause the tear:
[H]is life experience is a relatively sedentary existence, it doesn’t explain the advanced arthritis of his AC joint. Somewhere along the line he's been doing repetitive activities that resulted in AC joint arthritis and ideally that’s the genesis of his degenerative tear, which are common in association occurred in a single episode as the one that we reviewed during the extraction.
In light of the common ground between the experts that it is uncommon to suffer a tear caused by degeneration of the shoulder, and, as Dr Ruff put it, the “relatively sedentary existence” of Mr Palmer, I am not satisfied on the balance of probabilities that the cause of the tear pre-dates the cell extraction.
As to whether the tear was caused by the acts of Officer Ward during the extraction, the opinions of the experts were diametrically opposed. In assessing their competing views, two particular considerations have caused me to accept the evidence of Dr Ridalgh. The first is his significantly greater clinical experience in the treatment of shoulder injuries of the kind suffered by Mr Palmer. Dr Ruff’s practice is more closely concentrated on bone fractures. Dr Ridalgh has extensive experience diagnosing and operating on shoulder injuries including the shoulder tendons. Dr Ruff accepted that he had no experience operating on shoulder tendons.
Secondly, Dr Ruff was very dogmatic in his evidence and appeared unwilling to entertain even the possibility that his opinion could be wrong, notwithstanding Dr Ridalgh’s greater clinical experience. A dogmatic witness can of course be correct. I nonetheless found Dr Ruff’s evidence less considered and less convincing for that reason.
In disputing the causation of the tear injury, the Territory relied on a claim notification form under the Civil Law (Wrongs) Amendment Regulation 2004 (ACT) completed by Mr Palmer on 14 October 2020. In that document, Mr Palmer provided the following description of the hard extraction: “[i]mproper and extreme force used by corrective officers causing injury to my head and right knee” (emphasis added). In the same form Mr Palmer claimed to have suffered injury to his head and left knee, and psychological injury. The Territory submitted that the contents of the form, which was completed before Mr Palmer had an MRI scan on his shoulder, reveals that his shoulder injuries were not caused, or at least was not believed by Mr Palmer to have been caused, by the hard extraction on 8 September 2017.
I accept that the absence of any complaint about the shoulder in that form is capable of casting some doubt on Mr Palmer’s claim that it was the hard extraction that caused the tear. However, the simple fact is that the video footage provides an obvious explanation for the tear. There is no need to speculate as to whether enough force was used on that occasion to cause that injury. The pressure placed on the shoulder can be clearly seen, and an experienced orthopaedic surgeon is satisfied that it was probably the cause of an injury it is agreed now exists. The mere absence of complaint is not enough to undermine that compelling combination of evidence.
On the strength of the evidence of Dr Ridalgh and Mr Palmer’s evidence, I am satisfied on the balance of probabilities that the tear of the supraspinatus tendon in Mr Palmer’s right shoulder was caused by Officer Ward’s acts during the extraction. It is neither necessary nor possible to determine precisely which act caused the tear.
Psychiatric injury
The assessment of Mr Palmer’s psychiatric injury is more complex. The expert witnesses on this issue agreed that Mr Palmer has had a long and complex psychiatric history and that he suffers from PTSD and anxiety.
Ms Thabila Twala, Mr Palmer’s treating psychologist from Winnunga, has been treating Mr Palmer since 2018. Ms Twala echoed Mr Palmer’s evidence that it was difficult to have confidential conversations about Mr Palmer’s mental health in the prison setting. She noted that getting access to a psychological appointment room is particularly difficult. She said that, even when a room is obtained, there is no privacy. The majority of their sessions were conducted through a fence with custodial officers present. Ms Twala thought this prevented Mr Palmer from expressing his true feelings and concerns to her. She explained that, in relation to the incident, Mr Palmer had said to her that he did not “want to make things worse and be seen as problematic to officers, as this will make my life hell”. Ms Twala was of the opinion that Mr Palmer suffers from complex PTSD and Adult Attachment Disorder (AAD). Notably, however, she did not draw any connection between those conditions and the events of 8 September 2017 in her report or her evidence.
Mr Palmer also relied on the report of a psychologist, Ms Kerrianne Abbott. Ms Abbott expressed the opinion that Mr Palmer sustained psychological injury as a result of the hard extraction. She acknowledged that he had an extensive background of pre-existing psychological trauma and anxiety. She said he reported that his anxiety always escalates when he is incarcerated.
There was a plausible explanation for the difference in how M Palmer presented to Ms Abbott and how he presented to Ms Twala. Mr Palmer explained that, by the time he was being assessed by Ms Abbott, he had already commenced these proceedings. He said there was “no point in…keeping [what had occurred and how he felt] confidential”.
The Territory relied on evidence of the opinion of Dr Paul Ventura. After undertaking an assessment of Mr Palmer, Dr Ventura found that there was no psychological condition which had been aggravated by the hard extraction. Dr Ventura agreed with Mr Palmer’s experts that Mr Palmer suffered from symptoms of PTSD and anxiety. However, he was critical of Ms Abbott’s report, saying:
Ms Abbott reports that “he also reported an increase in his level of anxiety and hypervigilance pertaining to his safety. He continues to regulate and restrict his own interactions with corrections officers to this day, due to fear of similar incidents happening again”. In my experience working in custodial settings, this is not a pathological reaction but a normal reaction.
Dr Ventura accepted that Mr Palmer experienced increased vigilance after the hard extraction but described this as “highly common and normal behaviour among prisoners”. Whilst I am respectful of Dr Ventura’s opinion, I do not think Mr Palmer’s evidence of increased anxiety and hypervigilance can dismissed by that reasoning. The mere fact that Mr Palmer’s reaction to the hard extraction was one other prisoners might also experience does not mean that it is a source of considerable anxiety for Mr Palmer over and above that which he would have experienced had the incident not occurred. A single viewing of the handheld camera footage is enough to establish to my satisfaction that the incident very likely exacerbated Mr Palmer’s condition of anxiety. He was completely vulnerable to the correction officer’s conduct at the time of the incident and for the balance of his sentence.
The experts did at least agree that the events of 8 September 2017 aggravated one aspect of Mr Palmer’s condition, that is, the need to be hypervigilant and cautious around corrections officers. Dr Ventura described this hypervigilance as normal in a prison setting and therefore not pathological. But the impact of being in a prison is part of the assessment. The fact that many prisoners have the same symptom does not derogate from the symptomatology of any individual prisoner. It simply describes one of the consequences of being in prison. I accept Dr Abbott’s opinion and am satisfied on the balance of probabilities that Mr Palmer’s pre-existing generalised anxiety disorder was aggravated by the events of the hard extraction.
Mr Palmer gave evidence that he had suffered nightmares from time to time in relation to the hard extraction. However, he told Dr Ventura that he did not have any intrusive memories or flashbacks from the events. Ms Twala’s and Ms Abbott’s reports did not explore whether his PTSD has been aggravated by the events of the hard extraction. Ms Abbott’s report focussed on the aggravation of Mr Palmer’s generalised anxiety disorder. Accordingly, I am not persuaded on the balance of probabilities that the hard extraction aggravated Mr Palmer’s PTSD.
Assessment of quantum of damages
Whether the plaintiff requires surgery
The most significant dispute between the parties as to economic loss is whether Mr Palmer requires surgery to repair the partial thickness tear to his supraspinatus tendon.
Both Dr Ridalgh and Dr Ruff agreed that Mr Palmer’s prognosis is guarded and that he may need surgery at a future time. Dr Ridalgh explained that the usual treatment for a partial thickness tear would be a round of steroid injections and a course of physiotherapy. However, he was of the opinion that Mr Palmer’s injury will continue to cause pain until the tear is surgically repaired.
Dr Ridalgh said that most surgeons would recommend surgery where a patient has experienced disrupted sleep. Mr Palmer gave evidence that, since the hard extraction, if he is not experiencing pain during the day, he is experiencing pain at night when he sleeps. He also gave evidence that he continues to have issues with his shoulder when he sleeps on his right side and feels pain and discomfort when he wakes up in the morning.
Mr Palmer gave evidence that, if the pain and discomfort in his shoulder could be fixed, he would be willing to undergo surgery. Dr Ridalgh explained, and Dr Ruff agreed, that the success rate of surgery of that kind is around 85-88%.
Mr Palmer was careful in his response about the prospect of surgery. He did not claim that he would undergo surgery no matter what. It was clear that he intends to consider the medical advice he receives. Dr Ridalgh’s evidence persuaded me that Mr Palmer will be advised to undergo surgery at some point. Accordingly, I am satisfied on the balance of probabilities that surgery will be recommended as being required in the future and that Mr Palmer will undergo surgery when it is recommended.
General damages
Mr Palmer addressed general damages on alternative assumptions. On the assumption that he does not require surgery, he submitted that an appropriate award would be $75,000. Mr Palmer relied in that context on the decision of Loukas-Karlsson J in Ryan v Bunnings Group Limited [2020] ACTSC 353. In that case, her Honour held that an assault causing a relatively brief aggravation of longstanding conditions warranted an award of $40,000 in general damages: at [583]. Mr Palmer submitted that his case is worse because he has suffered ongoing pain in his right shoulder which lasted at least eight months.
On the assumption that surgery is required, Mr Palmer submitted that general damages should be awarded in the sum of $110,000 to compensate future pain and suffering caused by the surgery. In that context Mr Palmer relied on the decision of McWilliam AsJ in Jenning v George Harcourt Management Pty Ltd [2019] ACTSC 33 where her Honour awarded $125,000 in general damages to a 63 year old plaintiff who suffered chronic adjustment disorder with mixed anxiety and depressed moods, as well as ongoing issues with pain and mobility.
In Ryan, Loukas-Karlsson J summarised decisions of the ACT and NSW courts in relation to general damages in several comparative cases. Mr Whybrow submitted identified two cases he submitted were most relevant to the present case. The first was the decision of the Federal Court in Goldie v Commonwealth of Australia (No 2) [2004] FCA 156. The applicant in that case was held in migration detention following a mistaken determination that his visa had expired. He was awarded $2,000 in general damages for the conduct of pat searches and medical examinations. The second was the more recent decision of State of New South Wales v Cuthbertson [2018] NSWCA 320 where the plaintiff was awarded $12,000 in general damages after being assaulted and unlawfully restrained by police officers.
The Territory’s ultimate submission was that damages should be nominal general, being in the order of $1,000-$5,000 for the transient pain and minor injuries experienced by Mr Palmer during the hard extraction. However, the Territory accepted that, if the Court finds that the actions of corrections officers amounted to an assault and caused an injury to Mr Palmer requiring surgery, general damages in the order of $20,000-$50,000 should be awarded.
The assault of Mr Palmer has caused him ongoing pain and suffering in his right shoulder. He explained that he has experienced pain every day since the hard extraction. The pain was described by Mr Palmer as:
Well, I've just - the pain has been just like deadness, a deep, deep ache, like deadness if I lay on my arm, if I sit with my arm like this for too long, put my weight on it, sharp pain starts to occur and all sorts of thing.
The Territory submitted that Mr Palmer was exaggerating the extent of the pain he has suffered. It was noted that he did not seek pain relief, such as Panadol, from medical staff at the AMC during the period he claims to have suffered pain. It is relevant in that context to note the evidence that, for at least part of that period, Mr Palmer was a participant in the AMC’s methadone and bupranolol programs. Those treatments have the effect of masking pain. Mr Palmer said he did request Panadol from time to time.
Mr Palmer also gave evidence that he experienced pain doing physical tasks. However, the report of Dr Abbott, Mr Palmer’s expert witness, records that Mr Palmer “can engage in all physical tasks required of him”. Dr Ridalgh expressed the opinion that it is still possible for a person with a supraspinatus tear to complete physical tasks while experiencing pain. He cited the example of world champion boxer Sonny Liston who continued to fight in boxing matches with a torn rotator cuff.
Dr Ridalgh also gave evidence that, while elderly persons can be asymptomatic while suffering a supraspinatus tear, symptoms are usually more severe in younger persons because the tear is caused by trauma rather than being degenerative. Mr Palmer was relatively young at the time of the assault, being 39 years of age. I have already indicated that I am satisfied that Mr Palmer’s tear was caused by trauma (that is, the hard extraction) and not degeneration.
I consider that the appropriate award of general damages is $100,000. Mr Palmer submitted that he should be awarded interest at 2% on half the award of general damages. I agree.
Future loss of earning capacity
Mr Palmer makes no claim for past economic loss, for obvious reasons.
It is necessary to consider whether there is any future economic loss including loss of income, out-of-pocket expenses and domestic care.
To obtain damages for future loss of income, Mr Palmer must establish a reduction in his earning capacity as a result of the injury.
Mr Palmer claimed loss of earning capacity of $40,768 per annum (being $700 per week x 52 + superannuation). The earning capacity of $700 per week was based on Mr Palmer’s evidence that, when he was last employed in 2012 as a roofer, he earned $700-$1,100 per week. No records or expert evidence were adduced to support that contention. Mr Palmer accepted that, in light of his interrupted work history and his history of being incarcerated, the Court would not calculate loss of future earnings in that way. Instead, he submitted that it would be appropriate to award a lump sum by way of “buffer” in the amount of $80,000.
I am not satisfied on the balance of probabilities that Mr Palmer’s loss of earning capacity can be quantified in the sum of $40,768 per annum. The evidence did not establish that Mr Palmer will have no future earning capacity as a result of his injuries. I accept that, when Mr Palmer undergoes surgery, he will have no earning capacity for a period of time. Dr Ridalgh gave evidence that, if the result of the surgery is good (a likelihood of 85-88%), Mr Palmer would be able to sleep on his shoulder at night and raise his arm up in forward elevation at 150-160 degrees, presumably without discomfort. On that basis I am satisfied that Mr Palmer’s capacity to work will return to his pre-injury capacity following his recovery from surgery.
No evidence was adduced from the experts as to the length of time of recovery. However, neither party disputed my suggestion during closing submissions that ordinary surgical recovery may take approximately 12 weeks. I am satisfied that it is appropriate to calculate the loss of earning capacity for that period as $700 per week for 12 weeks, which gives an amount of $8,400.
As to the period between Mr Palmer being released from custody and undergoing surgery, the extent to which Mr Palmer has suffered loss of earning capacity, is difficult to quantify. At the time of the hearing, Mr Palmer was working as a gym sweeper at the AMC. He had previously worked on ground maintenance at the AMC but stopped doing that because he “just wasn’t interested in it [and]…it wasn’t worth the pain that it caused for $30.50 a week”. Mr Palmer explained that he had experienced pain while undertaking physical tasks and that, as a gym sweeper, he sometimes needed to swap arms while sweeping due to pain. Mr Palmer’s evidence was that any sustained physical task, no matter how labour-intensive, causes him pain or discomfort to some extent. On that basis, I am satisfied that Mr Palmer’s earning capacity will likely be impaired to some extent in the period between his release from custody and undergoing surgery.
Given the number of unknown circumstances, it is appropriate to award a buffer for that period. I am satisfied that $20,000 is an appropriate buffer.
It is necessary to adjust the total damages for future loss of earning capacity to reflect the vicissitudes of life. The usual or default discount is 15%. The Court is entitled to adjust the default discount to reflect the circumstances of the case: Berkley Challenge Pty Ltd v Howarth [2013] NSWCA 370. I am inclined to increase the discount to 20% to reflect Mr Palmer’s “propensity for…imprisonment”: Taupau v HVAC Constructions (Qld) Pty Ltd [2012] NSWCA 293 at [190].
As a result, the award of damages for loss of earning capacity will be $22,720 reduced from $28,400.
Future out-of-pocket expenses
The cost of surgery was agreed between the surgical experts, Dr Ridalgh and Dr Ruff, to be $15,824. Mr Palmer submits that a buffer of $5,000 should be allowed to account for the subsequent GP consultations, medications, investigations, physiotherapy and specialist costs likely to arise as a result of the surgery. I am satisfied that is appropriate. The total award for out-of-pocket expenses arising as a result of the shoulder surgery is $20,824.
The evidence establishes that there have been multiple causes of Mr Palmer’s generalised anxiety disorder including his tumultuous and traumatic childhood and his struggle to come to terms with his cultural identity in light of what he termed his racist upbringing. However, as already explained, I am also satisfied that Officer Ward’s conduct has exacerbated the anxiety suffered by Mr Palmer and increased his need for psychological treatment.
Dr Abbott is the only expert who provided an estimate as to the cost of psychological treatment. She was of the opinion that Mr Palmer would require fortnightly sessions for 12 months (26 sessions in total) ranging in cost between $200-$270 per session, depending on the psychologist engaged, to properly treat his anxiety.
On that basis, an appropriate award for out-of-pocket expenses arising from psychological treatment is $6,110, representing 26 sessions priced at $235.
The consequential total award of damages for future out-of-pocket expenses is $26,934.
Future domestic assistance
Mr Palmer submitted that a buffer should be awarded for future domestic assistance of $20,000, reflecting under half an hour per week for the rest of Mr Palmer’s life (41 years). I am not satisfied that Mr Palmer will require domestic assistance for the rest of his life as a result of the injuries caused by the hard extraction. Having regard to the evidence of Dr Ridalgh referred to above, I am satisfied that Mr Palmer will be able to perform domestic duties once he has recovered from his shoulder surgery.
I propose to grant a buffer of $5,000 for future domestic assistance until the surgery and for the period of recovery from the surgery.
Reasons for rejecting application to amend the defence
The proposed amendments sought to plead the version of facts on which Mr Whybrow had opened, as follows:
(a) That Mr Palmer was housed in Cell 4 with another detainee (Cedric Roberts);
(b) That the fire started in Cell 4 happened shortly after two other detainees (Mr Evans and Mr Fort) had refused to comply with a direction to return to their cell, requiring the intervention of ten custodial officers;
(c) That, during the extraction of Mr Palmer and Mr Roberts from Cell 4, Mr Roberts had assaulted a custodial officer;
(d) That, at the same time as Mr Palmer, three other detainees smashed through the glass observation panel at the front of their cell in what seemed to be a coordinated assault. Specifically:
(i) Mr Fort smashed the glass observation panel of Cell 20;
(ii) Mr Evans smashed the glass observation panel of Cell 9; and
(iii) Mr Walters attempted to smash through the rear glass panel of Cell 16;
(e) That, about 32 minutes prior to the facts alleged in (d), Mr Roberts smashed through the front glass observation panel of Cell 11;
(f) That a decision was made to remove the plaintiff and other detainees who had caused damage to their cells, as a matter of priority and urgency, and relocate them out of the cell block;
(g) That the defendant admits that force was used by corrections officers by way of the following acts, but denies that the force was excessive and says that the force was necessary and reasonable in the circumstances:
i. Three officers entering the cell, placing the plaintiff on the ground and handcuffing his hands behind his back;
ii. Two corrections officers assisting the plaintiff to roll onto his side and to a standing position by lifting his shoulders and arms;
iii. Escorting the plaintiff from his cell and down a set of stairs to the external exercise yard of the premises.
(h) In relation to the acts of the corrections officers set out at (g) above, the amended defence seeks to include the following particulars:
i. That the coordinated course of conduct by the detainees occurred when there was only minimal staff on duty or available to respond;
ii. That if the situation had escalated further, there would have been insufficient staff to contain that escalation;
iii. If a detainee breached the glass panel at the rear of the cell it would allow the detainee to escape that cell, in which case a detainee would be able to obtain weapons or free other detainees from other areas within the AMC; and
iv. It was not known if Mr Palmer might seek to cause injury to, or had secreted a weapon or some item capable of causing injury to, himself or a custodial officer.
Mr Whybrow accepted that, if the amendment was allowed, the hearing would have to be vacated to allow the plaintiff to respond to the new case. It was also common ground that a trial of the broader case sought to be propounded by the defendant would significantly increase the estimate for hearing.
Rule 501 of the Court Procedures Rules provides:
501 Amendment—when must be made
All necessary amendments of a document must be made for the purpose of—
(a) deciding the real issues in the proceeding; or
(b) correcting any defect or error in the proceeding; or
(c) avoiding multiple proceedings.,
The defendant submitted that the proposed amendments were necessary for the purpose of deciding the real issues in the proceedings and correcting a defect or error.
The defendant relied alternatively on r 502, which relevantly provides:
502 Amendment—of documents
(1)At any stage of a proceeding, the court may give leave for a party to amend, or direct a party to amend, an originating process, anything written on an originating process, a pleading, an application or any other document filed in the court in a proceeding in the way it considers appropriate.
(2)…
(3)The court may give leave to make an amendment even if the effect of the amendment would be to include a cause of action arising after the proceeding was started.
As to the application of r 501(a), Mr Palmer relied on the joint judgment in the decision of the High Court of Australia in AON Risk Services Australia v Australian National University [2009] HCA 27; 239 CLR 175 at [82] (Gummow, Hayne, Crennan, Kiefel and Bell JJ):
The need for amendment will often arise because of some error or mistake having been made in the drafting of the existing pleading or in a judgment about what is to be pleaded in it. But it is not the existence of such a mistake that founds the grant of leave under rules such as r 501(a), although it may be relevant to show that the application is bona fide. What needs to be shown for leave to amend to be given, as the cases referred to above illustrate, is that the controversy or issue was in existence prior to the application for amendment being made. It is only then that it is necessary for the court to allow it properly to be raised to enable a determination upon it.
The need to show that “the controversy or issue was in existence prior to the application for amendment being made” was emphasised by French CJ in his separate judgment in AON. His Honour explained at [14] that r 501 engages with the obligation of the trial judge to make “all such amendments as may be necessary to determine the real questions in controversy”, which is to be distinguished from the discretion conferred by a rule such as r 502 to allow a party to amend its pleading on that party's motion. To allow the amendment under r 501, I would have to have been satisfied that the existing defence did not distil the issues that were in fact in controversy between the parties and on which they had come to trial.
The “defect or error” relied upon by the defendant as the basis for invoking r 501 was a misapprehension as to the applicable law. Prior to January 2021, r 443 would not have applied to these proceedings. At that time, the rule applied only to motor vehicle and employment death and personal injury claims. The rule was subsequently extended to apply to all types of personal injury claims: Court Procedures Amendment Rules 2020 (No 5) (ACT). The defendant’s representatives explained that they were operating under the misapprehension that, at the time of filing the defence, r 443 remained in its pre-January 2021 state.
As explained in AON, that misapprehension would only form a basis for allowing the amendment under r 501 if the relevant factual controversy or issue was in existence at that time, that is, if the parties were mutually at issue on the defendant’s version of facts. The defendant contended, in effect, that Mr Palmer well knew the version of facts the defendant would seek to the prove at the hearing. It relied on documents exchanged in advance of the hearing which, so it was submitted, indicated that the use of force was in response to the conduct of several inmates, not just Mr Palmer. I do not think that is what the correspondence shows. First, in a letter to an expert witness, Mr Paul Stephens, Mr Palmer’s solicitor wrote:
On 8 September 2017, Mr Palmer and his cellmate witnessed another inmate being attacked outside their cell by six correctional officers. In an effort to halt the attack, Mr Palmer and his cellmate lit a fire within their cell to attract the attention of the officers. Mr Palmer, his cellmate, and the victim of the attack, were then placed in separate isolated cells. In unison, the three inmates, proceeded to destroy the glass viewing windows of their cells to protest what they perceived as their unfair treatment.
(Emphasis added.)
However, in a briefing letter to its own expert, Professor Alpert, the defendant set out the events leading up to the cell extraction (specifically, the lighting of a fire in Cell 4) in detail but then stated “the plaintiff’s claim only relates to the…plaintiff’s extraction following the second glass smashing incident” and that “the details of the earlier incident are contained within [the] brief as relevant background information”. This indicates that the defendant understood the narrow basis on which Mr Palmer’s claim was put.
Finally, the defendant relied on the joint briefing letter sent by the parties to the expert witnesses. Annexed to that letter were reports from corrections officers and video footage relating to the conduct of other inmates. The defendant argues that these documents ought to have indicated to Mr Palmer that the actions of other prisoners would be relied on by the defendant to justify use of force. In response to that submission, Mr Palmer tendered a copy of a draft version of the joint briefing letter in which Mr Palmer had proposed that a large portion of material be excluded from the brief to the experts on the basis that it was irrelevant. Ultimately, Mr Palmer acquiesced to providing the full list of documents but the fact that the issue of relevance was raised again reinforced Mr Palmer’s narrow conception of his case.
That correspondence did not demonstrate that the requirement to amend under r 501 was enlivened. At best, it reveals in hindsight that the parties may have been at cross purposes as to the version of facts against which the appropriateness and reasonableness of the force used was to be judged. That was not due to any fault or dereliction on the part of the plaintiff. It is trite that the obligation to put one’s opponent on notice of the case to be met is not discharged by providing reams of documents from which the case might be divined. The simple fact is that, prior to the application to amend, the parties were not at issue on the defendant’s version of facts.
In the circumstances, I was not persuaded that the application brought forward a “necessary amendment” as that expression is understood in r 501. As French CJ said in AON at [31], “[t]he requirement to make amendments for the purpose of deciding ‘the real issues in the proceeding’ does not impose some unqualified duty to permit the late addition of any new claim”.
It followed, as was the case in AON, that the amendment could only be allowed as an exercise of the discretion under r 502. The principal consideration against allowing the amendment under that rule was the parties’ acceptance that to do so would have necessitated vacating the hearing that was already in its second day. It is helpful again to turn to the words of French CJ in AON at [30]:
It might be thought a truism that ‘case management principles’ should not supplant the objective of doing justice between the parties according to law. Accepting that proposition, J L Holdings cannot be taken as authority for the view that waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of interlocutory discretions of the kind conferred by r 502. Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes.
To like effect, it was noted in the joint judgment at [94] that the Court is required to do justice to all parties (not just the applicant for leave to amend), adding:
Where a party had had a sufficient opportunity to plead his or her case, it may be necessary for the court to make a decision which may produce a sense of injustice in that party for the sake of doing justice to the opponent and to other litigants.
It was also relevant to have regard to the provisions of s 5A of the Court Procedure Act, particularly s 5A(2)(b), which requires the Court to have regard to the “efficient use of the judicial and administrative resources” available to the Court. The vacation of an allocated hearing date always comes at the expense of other litigants waiting in the queue.
Furthermore, at the time of the hearing, Mr Palmer remained an inmate at the AMC. It may be taken that the importance of this action to him personally had an enhanced significance in that context.
The defendant submitted that Mr Palmer had himself engaged in litigation by ambush in that:
(a) he was aware of the defendant’s misapprehension of the issues in the case and should have raised it at an earlier stage of the proceedings; and
(b) he had deliberately waited until the morning of the hearing to indicate that he did not press the allegation that the defendant had breached its statutory duties.
The defendant relied in that context on the decision of the New South Wales Court of Appeal in South Sydney West Area Health Service v MD [2009] NSWCA 343. In that case, the defendant had failed to plead s 5O of the Civil Liability Act 2005 (NSW). The plaintiff had deliberately withheld an objection on that basis to an expert report until the very end of the case. The Court held that the reason for withholding the objection was to gain a tactical advantage amounting to litigation by ambush: at [30] and [54].
There is no basis for apprehending any such conduct on the part of Mr Palmer in the present case. As already explained, the defendant ought to have gleaned, from its correspondence with the plaintiff, that he held a narrower understanding of the facts in issue than the version the defendant proposed to raise at the hearing.
Mr Palmer provided a cogent explanation for not pressing the third limb of his claim, namely, legal uncertainty as to whether a breach of the Human Rights Act 2004 or the Corrections Management Act 2007 gives rise to an entitlement to an award of damages. He was careful to note that he maintained his reliance on the existence of those statutory duties to inform the content of the defendant’s entitlement to use force against him.
Conclusion and orders
The assessment of damages in accordance with these reasons is:
Head of damage Award General damages $100,000 Interest on general damages $5,000 Future economic loss $22,720 Future out of pocket expenses $26,934 Future domestic assistance $5,000 Total $159,654
Accordingly, I give judgment for the plaintiff in the sum of $159,654.
The parties asked to be heard as to costs in light of my findings.
| I certify that the preceding one hundred and ninety-four [194] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: L Ireland Date: 20 November 2023 |