Ratcliffe v State of South Australia - [2012] SADC 93

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
RATCLIFFE v STATE OF SOUTH AUSTRALIA
[2012] SADC 93
Judgment of His Honour Judge Boylan
24 July 2012
POLICE - ACTIONS FOR WRONGFUL ARREST, TRESPASS AND OTHER WRONGS - GENERALLY
Plaintiff claims damages for injuries caused by handcuffs during lawful arrest - claims in intentional torts of assault and battery and in negligence.
Held, claim dismissed as handcuffing was reasonable in the circumstances. Further, the undoubted injury to the plaintiff's wrist not caused by the handcuffing but by an earlier unrelated injury.
Trindade, Cane and Lunney: Law of Torts in Australia, Fourth Edition, OUP, 2007 ; R v Turner [1962] VR 30 ; Perkins v County Court of Victoria (2000) 2 VR 246; the Council of the Shire of Wyong v Shirt and Ors (1980) 146 CLR 40; McIntosh v Webster [1980] 43 FLR 112, considered.

RATCLIFFE v STATE OF SOUTH AUSTRALIA
[2012] SADC 93
A Claim for damages for personal injury

In January 2003, police officers arrested and handcuffed Mr Ratcliffe before taking him to the Mount Gambier Police Station. There, he was sprayed with capsicum foam before being transferred to a padded cell. He now claims that the handcuffing caused permanent injury to his wrist, so much so that he has been unable to work ever since. He also claims damages for pain and suffering occasioned by the use of the capsicum foam.
In my judgment, Mr Ratcliffe’s claim fails because all the police officers acted reasonably in their treatment of him. Further, the undoubted problem that he has with his left wrist was not caused by his being handcuffed but by an injury which he suffered some year or so before his arrest.
The witnesses
I heard evidence about the arrest and handcuffing from Mr Ratcliffe, from his two housemates and from the arresting officers, Constables Johnston and Murray. Murray had no independent memory of the occasion. Johnston had some memory of it but had to rely mainly on notes made at the time. Two duty sergeants at the police station gave evidence about events there, and I saw film of Mr Ratcliffe’s behaviour at the charge counter and in the holding cell.
Mr Ratcliffe and his housemates, Peter and Craig Walker, had all been drinking for some hours before the arrest. Mr Ratcliffe became angry and agitated at his arrest and he remained angry for some hours afterwards. The reliability of the evidence of Mr Ratcliffe and both Walkers has been affected by their intoxication and, in Mr Ratcliffe’s case, has also been affected by his anger. All the police officers were sober and attending to their duties. Where the evidence of police witnesses differs from that of Mr Ratcliffe and the Walkers, I prefer and I accept the evidence of the police.
There is an aspect of Mr Ratcliffe’s evidence which has caused me to doubt his reliability about the cause of the ongoing pain in his wrist: the differing description of the state of his wrists given in evidence on the one hand and to doctors on the other; and the inconsistency between his evidence about the degree of pain he suffered at the police station and his behaviour in the holding cell.
In evidence, he gave this description of his hands shortly after the handcuffs were removed:
My hands were discoloured, deep grooves and indentations around my hands, and very painful my wrists were, and my hands were numb.
But the film I saw showed Mr Ratcliffe in the holding cell banging on the windows with his fists. That behaviour is not consistent with his claim that his wrists were very painful and his hands numb.
In evidence, Mr Ratcliffe made no mention of cuts to his hands. Nor did Sergeant Long, one of the duty sergeants. Sergeant Long observed only indentations commonly seen on the wrists of those who have been handcuffed. Sergeant Long also said that there was no blood. When giving his history to doctors, the plaintiff said that his wrists had been cut. To Mr Forbes, orthopaedic surgeon, he complained of lacerations and he told Dr Suzette Blight that he had serrated cuts on his wrists. There is an inconsistency between what he said in evidence and what he told the doctors. Further, I have examined the handcuffs and seen their use demonstrated. I do not see how they could cause “serrated” cuts: the serrated or ratchet section of the handcuffs faces outwards and cannot come into contact with the skin of the wrist.
Findings of Fact
The following narrative constitutes my findings of fact.
The plaintiff was 47-years-old at the time of his arrest on 23 January 2003. He is a big man, tall and broad shouldered.
Mr Ratcliffe spent the later afternoon and early evening of 23 January 2003 drinking with his friends, Peter and Craig Walker and his former partner, Ms Kelly Millowick. Mr Ratcliffe and Ms Millowick argued and Ms Millowick left the house. Back at her own house, she telephoned the police. Johnston and Murray were tasked to her house where Ms Millowick told them that the plaintiff had assaulted her while she was at the Walker house. Johnston saw that she had an injury to her eye.
At about 9 00 pm, the two officers attended at Peter Walker’s house. One of the officers knocked at the door. Peter Walker answered it and was told that the police wanted to speak to Mr Ratcliffe. Mr Ratcliffe then went out of the front door onto the lawn and Johnston began telling him why he and Murray were there. Murray went to enter the house. Seeing that, the plaintiff became angry and abusive, shouting to Murray that he had no right to enter without a warrant. At that stage, Johnston told Mr Ratcliffe that he was under arrest. Owing to his belief that Mr Ratcliffe had been behaving violently a little earlier towards Ms Millowick, and to the fact that he had become angry and abusive and was showing signs that he could become violent again, Murray handcuffed him. He used regulation rigid handcuffs. Murray handcuffed the plaintiff not only because Mr Ratcliffe was showing signs of possible aggression but also because he had to be taken back to the police station in a conventional sedan rather than a secure cage car. In those circumstances, if unrestrained, Mr Ratcliffe posed a threat to the safety of the two police officers travelling with him.
Almost as soon as the handcuffs were applied, Mr Ratcliffe complained that they were too tight. Murray did not loosen them and Mr Ratcliffe continued to be abusive. I am unable to find that the handcuffs were, in fact, too tight. The plaintiff wanted to get the police car’s registration number and the numbers of the two police officers. Accordingly, he called to the Walkers to fetch pen and paper. Craig Walker did so. While Peter Walker was trying to see Murray’s badge number, he touched Murray, who then threatened to arrest Peter Walker. Mr Ratcliffe and Senior Constable Murray walked to the police car. Mr Ratcliffe resisted when he was being put into the car and Johnston had to go to the opposite side and drag him into the car by pulling him across the rear seat by the upper arms. That action increased the pressure on the handcuffs and caused pain to Mr Ratcliffe. Owing to his being handcuffed behind his back and his continuing agitation, the cuffs continued to hurt Mr Ratcliffe during the drive to the police station. He sat in the rear passenger side of the vehicle, leaning forward and pressing his knees against the seat and in front of him.
At the police station, Mr Ratcliffe at first refused to get out of the car and a number of officers went out to where the car was parked in the sally-port. Mr Ratcliffe eventually got out of the car and was escorted to the charge counter. Either on the way to the counter or immediately upon arriving at it, Sergeant Long ordered that the handcuffs be removed.
Mr Ratcliffe was in handcuffs for no more than 11 minutes.
At the charge counter, he continued to be abusive, demanding that he see the officer in charge of the station and that he be examined by a doctor. He complained of injuries to his wrists. There were indentation marks caused by the handcuffs but there was no blood.
From the charge counter, the plaintiff was taken to a holding cell. Once there, he held his wrists up in front of the security camera inside the cell. He was dressed in shorts and T-shirt only. The plaintiff was very cold so he took a mattress from a concrete bench and removed the vinyl cover by tearing it at the seams. Shortly thereafter, officers came into the cell and removed the mattress and cover. They did so to prevent Mr Ratcliffe using any part of the mattress to harm himself. Mr Ratcliffe was still very angry. He began banging with his fists on the perspex window of the cell to attract attention. Later, he removed all of his clothing and again banged on the window of the cell; he also head-butted the window. Police then became concerned for his own safety and a number of them entered the cell and subdued Mr Ratcliffe with capsicum foam before removing him to a padded cell from which he was released at about 5.00 am immediately before being granted bail.
He returned to Peter Walker’s house and, later in the morning, presented at the Mount Gambier Hospital but I heard no evidence of any observations that may have been made by staff there. Mr Ratcliffe did not see a doctor at the hospital but went to the rooms of his general practitioner, Dr Humen, who was unavailable. He did not see Dr Humen until 3 February 2003. He continued to see Dr Humen, complaining of pain in his wrists, throughout 2003 and the first half of 2004.
In July and September 2004, he underwent surgery for open carpal tunnel releases on both sides. In November 2005, he was referred to Mr Henry Forbes, orthopaedic surgeon, who in turn, referred him to an upper limb specialist at Modbury Hospital. Mr Ratcliffe was offered various surgical options but decided not to go ahead with surgical treatment.
Mr Ratcliffe continues to suffer significant pain in his left wrist.
Liability
While the plaintiff concedes that his arrest was lawful, he claims that the initial application of the handcuffs and their continued use until they were removed at the police station amounted to assault and battery. He also claims that the use of the capsicum foam amounted to assault and battery. In the alternative, he claims that the police officers were negligent in their use of the handcuffs and in using the capsicum foam.
Assault
In my view, there is no basis for a claim in trespass to the person on the basis of an assault. Assault is “any direct threat by the defendant that places the plaintiff in reasonable apprehension of contact with the plaintiff’s person either by the defendant or by some person or thing within the defendant’s control.[1]” That did not happen here. The claims in assault are dismissed.
[1] Trindade, Cane and Lunney : Law of Torts in Australia, Fourth Edition, OUP, 2007 at p48.
Battery
A battery consists of a direct act of the defendant causing contact with the plaintiff’s body without the plaintiff’s consent.[2] Here, the relevant contact is the application and continued use of the handcuffs and, later, the application of the capsicum foam. Battery is an intentional tort and is actionable per se but lawful restraint is a defence.
[2] Ibid at p36.
At common law, the amount of force used to affect an arrest must be reasonable.[3] If it is not, the person effecting the arrest may be liable in the intentional tort of trespass to the person, here battery. So, too, with the use of handcuffs: their use in affecting an arrest must also be reasonable.[4] So, too, must be the use of any force, including the use of capsicum foam, while an arrestee is in custody. Liability in the plaintiff’s claims in battery depends upon the reasonableness or otherwise of the conduct of police officers while the plaintiff was in custody; that is, from the time when he was handcuffed just after his arrest was complete, until he was released from custody early the following morning. Reasonableness is also the touchstone of his claim in negligence.
[3] R v Turner [1962] VR 30 at p36.
[4] Perkins v County Court of Victoria (2000) 2 VR 246 at 267, para 44 per Charles JA; Kumar v Minister for Immigration (1991) 28 FCR 128 at 130, per Lockhart J.
Negligence
There is no doubt that the police, both of the arresting officers and those in charge at the station, owed a duty of care to the plaintiff. Whether the police breached that duty depends upon its scope and what was reasonable in the circumstances. The formulation of a breach of duty of care in negligence is set out in the well known passage in The Council of the Shire of Wyong v Shirt and Ors:
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.[5]
[5] (1980) 146 CLR 40 at 47-48.
The amount of force used when keeping a person in custody must be proportionate to the mischief being presented. In assessing the reasonableness of the force being used, the court is entitled to consider the “agony of the moment” as well as the speed at which events occur. The reasonableness of the force used cannot be assessed with reference to hindsight.[6]
[6] McIntosh v Webster [1980] 43 FLR 112 at 123 per Connor J.
Here, the arresting officers, Johnston and Murray, were entitled to take proper precautions for their own safety by restraining the plaintiff while he was in their custody. They were dealing with a man who was abusive and verbally aggressive, whom they suspected may have been behaving violently not long before he was arrested, and who had to be conveyed not in a secure cage car but in the rear seat of a police sedan. In those circumstances, it was reasonable to handcuff him during the journey. I find that the use of the handcuffs initially and throughout the journey was necessary and reasonable. The plaintiff exacerbated the normal discomfort caused by handcuffs by his behaviour while handcuffed, especially by the position he adopted in the rear seat of the police vehicle: he leaned back into the seat with his knees up, thus putting pressure on the handcuffs.
In the same way, the police behaved reasonably in applying the capsicum foam. The plaintiff’s behaviour while in the holding cell, especially his head-butting and banging on the cell window, gave the police cause to be concerned that he would harm himself. It was reasonable to place him in a padded cell. Owing to his earlier abusive behaviour upon his arrest, at the charge counter, and on account of his bizarre behaviour in the cell, it was also reasonable to subdue him with capsicum foam before police officers removed him to the padded cell.
Mr Ratcliffe’s counsel suggested in submissions that the arresting officers breached standing orders in two ways; first, by not using flexi-cuffs or two sets of rigid handcuffs on a man as big as Mr Ratcliffe and, secondly, by handcuffing him to the rear rather than to the front when he was travelling in the vehicle. I reject those submissions. Senior Constable Murray had to act quickly once he had decided to use handcuffs. It is unreasonable to insist that, in the circumstances as they were at the time, he should have paused to consider handcuffing other than in the usual way, namely, by using one set of standard rigid cuffs. For the reasons which I have already given about the necessity for the police officers to look to their own safety in the car, it was appropriate for Mr Ratcliffe to remain handcuffed to the rear while on the short journey to the station.
Because the officers behaved reasonably in the use of their handcuffs and in using the foam, they are not liable in battery or in negligence.
If I am wrong about liability, I would have awarded nominal damages only for some transient pain and discomfort and loss of dignity occasioned by the use of the handcuffs and the capsicum foam because the medical evidence that I accept is that an earlier injury is the cause of Mr Ratcliffe’s left wrist pain. There is no dispute that, on 15 January 2002, a year or so before the handcuffing incident, Mr Ratcliffe broke his left wrist in a fight. He consulted Mr Forbes. Having discussed treatment with Mr Forbes, the plaintiff declined to have a metal plate and pins in his wrist. He also declined manipulation of the fracture under a general anaesthetic, instead opting for a plaster cast. Some time later, after he had removed the cast himself, he complained to Mr Forbes that his wrist was “bodgie” but he decided against having the wrist re-broken and re-set. As a result of breaking his wrist, the plaintiff was unable to work for about five months.
There is also no dispute that there was mal-union of the bones in the fractured left wrist. That is, he is left with what is known as “ulnar variance”: his ulnar bone is somewhat longer than his radial bone.
Three doctors gave evidence before me. I deal first, and briefly, with Dr Humen’s evidence.
Dr Humen was Mr Ratcliffe’s general practitioner in Mount Gambier. He noted serrated lines which he recorded as having seen on Mr Ratcliffe’s wrists about ten days after the arrest and handcuffing. Dr Humen was relying on the history given by Mr Ratcliffe. I do not accept that his wrists had been cut to the extent that serrations were still present ten days after the event. If so, I think he would have sought medical treatment sooner and if he had such cuts I think he would have had them photographed. He had caused one or other of the Walkers to take photographs of his wrists immediately upon his return from the police station but I did not see those photographs. I was told they were of very poor quality. Further, as I said earlier, I do not regard Mr Ratcliffe as a reliable witness. I do not accept that any marks seen by Dr Humen were caused by the handcuffs.
Dr Suzette Blight, rehabilitation physician, and Mr Forbes disagree about the cause of Mr Ratcliffe’s chronic wrist pain.
Dr Blight gave evidence for the plaintiff, whom she saw only twice. She agreed that carpal tunnel syndrome no longer relates to Mr Ratcliffe’s ongoing disability. She also agreed that it was no more than a possibility that the handcuffing contributed to the carpal tunnel syndrome. Dr Blight said:
I am just saying that having the handcuffs on could have contributed to his carpal tunnel symptoms. I do not think it is possible to exclude it, that’s what my point is.
With respect to the ongoing pain in Mr Ratcliffe’s left wrist, the effect of Dr Blight’s evidence is that the compression caused by the handcuffs contributed to the wrist damage.
Mr Forbes took a different view. He said:
I believe that Mr Ratcliffe suffers from persistent left wrist pain, resulting from mal‑union of a distal radial fracture suffered in January 2002. Subsequent to that he suffered bilateral carpal tunnel syndrome proven by electrophysiological studies and underwent standard bilateral carpal tunnel decompression.
I believe that the primary cause of the left wrist pain is the pre-existing mal‑union of the distal radius and that any injury he may have suffered during the course of his arrest 12 months later is unlikely to have been a substantial causative factor, this may have produced minor symptomatic exacerbation but I do not believe it has caused the underlying problem.
I believe that the carpal tunnel syndrome is a common condition which may have occurred spontaneously and is, in my opinion, unlikely to have been caused by wrist trauma related to his arrest.

I have carefully considered all of the medical evidence. With respect to Dr Blight, I found some of her evidence unclear. I also note that, in coming to her opinion, she relied very much on the fact that Mr Ratcliffe began complaining about his pain very soon after his arrest on 23 January 2003. Mr Ratcliffe is not a reliable historian in relation to his pain. I do not accept that he had been free of pain in his left wrist until the handcuffing.
Mr Forbes, who was called by the defence, had been the plaintiff’s treating surgeon after the wrist fracture in 2002 and saw him again when Mr Ratcliffe continued to complain of pain. Mr Forbes was well acquainted with the history and treatment of Mr Ratcliffe’s left wrist. While Mr Forbes conceded in cross examination that it was a possibility that the handcuffing might have contributed to the carpal tunnel, he did not waver from the opinion which I have quoted earlier. In re-examination he maintained his opinion that the carpal tunnel syndrome occurred spontaneously.
I prefer Mr Forbes’ evidence to that of Dr Blight. I find that the handcuffing did not cause or contribute to Mr Ratcliffe’s carpal tunnel syndrome; nor did it cause or contribute to his ongoing problem with his left wrist. That problem has been caused by the mal-union of the earlier fracture and by degenerative change.
I dismiss Mr Ratcliffe’s claims in battery and in negligence in respect of the handcuffing and the capsicum foam.
In some cases it would be appropriate for me to assess damage on the basis that I am wrong about causation. Given the medical evidence and my findings of fact about liability, I do not think that this is such a case
Further, in view of my findings above, there is no need for me to consider the submissions of counsel about the “egg shell skull” cases and the provisions of the Wrongs Act as it stood in January 2003.