Thornton v State of New South Wales (No 4)

[2016] NSWDC 198

District Court

New South Wales

Medium Neutral Citation:	Thornton v State of New South Wales (No 4) [2016] NSWDC 198
Hearing dates:	20, 21, 22, 23, 26, 27, 28, 29 and 30 October 2015
Date of orders:	19 August 2016
Decision date:	19 August 2016
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1)   Judgment for the defendant. (2)   Plaintiff to pay the defendant’s costs.
Catchwords:	TRESPASS – assault - battery – wrongful arrest – quantum of damages
Legislation Cited:	Law Enforcement (Powers and Responsibilities) Act 2002, s 201
Cases Cited:	Gayfer v Leahy (Court of Appeal (NSW), Hutley AP, Glass JA, Samuels JA, 14 September 1984, unrep) Maricic v Dalma Formwork (Australia) Pty Ltd and Anor [2006] NSWCA 174 Poidevin v Semaan [2013] NSWCA 334 State of New South Wales v Williamson [2011] NSWCA 183 Woodley v Boyd [2001] NSWCA 35
Category:	Principal judgment
Parties:	John Edward Thornton (plaintiff) State of New South Wales (defendant)
Representation:	Counsel: Ms E Welsh (plaintiff) Mr J E Maconachie QC with Mr M S Spartalis (defendant)   Solicitors: Stacks/The Law Firm (plaintiff) Crown Solicitor’s Office (defendant)
File Number(s):	2013/363898
Publication restriction:	None

Judgment

1. Introduction

1. John Thornton was injured when he was arrested by police and sues the State of New South Wales for damages. The Amended Statement of Claim alleges assault and battery and false imprisonment. The false imprisonment claim was abandoned at the trial, but wrongful arrest, although not pleaded, was raised as an issue at the outset of the trial without demur.

2. Issues

2. Mr Thornton concedes that the police had reasonable cause to arrest him. However, he claims damages for unlawful arrest on the basis that he was not told by the arresting officers that they were the police, that he was being arrested and the basis for the arrest. Thus, the nature of the statements made by the police at the commencement of and during the arrest is in issue.

3. The second issue is whether, as Mr Thornton claims, he was unlawfully assaulted by being punched and kicked by police officers standing by him as he lay on the ground. In general terms, the contrary police case is that the arrest involved a struggle with a resisting Mr Thornton, and that he was not kicked, at least not with a foot. Brad Smith, a police officer, conceded that he used a “knee strike” in an attempt to subdue Mr Thornton.

4. The third issue is what injuries were caused by the forceful arrest. Mr Thornton was found in the days following the arrest to have suffered a broken nose, bruising, some broken ribs, and most significantly, a severely disfiguring and, for a time, life-threatening abdominal injury apparently as a result of a ruptured duodenal ulcer. The State denies that these injuries, apart perhaps from the broken nose and some bruises, were caused by the arrest.

5. The fourth issue is the quantum of damages sustained.

3. The factual background

6. A police operation known as Operation Gonaro involved surveillance of Mr Thornton and his close friend (his former partner’s son who he referred to as his stepson), Brett Roby, in relation to suspected drug transactions. From that surveillance the police reasonably believed that Mr Roby had made attempts to obtain a firearm.

7. On Saturday, 4 December 2010, the police reasonably believed Mr Thornton and Mr Roby would meet at about 9am at the Metro Service Station at Williamstown to engage in the sale of illicit drugs. At a briefing meeting of police earlier that morning, relevant police were assigned their roles in relation to the arrest of Mr Roby and Mr Thornton and were informed of the criminal background of Mr Thornton and Mr Roby, of the potential of them to possess firearms, and of the importance of the arrest. Dale Woods and Mr Smith were assigned to arrest Mr Thornton and Mr Roby, with the assistance of two other officers, Emilie Deacon and Andrew Wheatley, among others.

8. As events transpired, Mr Thornton and Mr Roby met at a clearing off Cox’s Lane near the Nelson Bay Rd overpass.

9. Mr Thornton arrived first at the clearing. Mr Roby, being followed at a distance by a vehicle driven by Mr Woods in which Mr Smith was a passenger, arrived soon after, around 9 am.

10. When Mr Roby arrived, Mr Thornton alighted from his car and walked towards Mr Roby’s vehicle. Whether he had reached Mr Roby’s door by the time Mr Woods and Mr Smith had arrived is in issue. In any event, Mr Thornton then moved away from Mr Roby. Mr Smith alighted from the police vehicle with his focus on Mr Thornton, whereas Mr Woods proceeded to arrest Mr Roby, apparently without incident. Cash and illicit drugs were found in Mr Roby’s vehicle.

11. The arrest of Mr Thornton was not so uneventful. Significant force was used. Ultimately, Mr Thornton’s face was sprayed with capsicum spray and thereafter Mr Thornton was submissive and was placed in handcuffs. An ambulance was called and he was treated for the after-effects of the capsicum spray. He was conveyed to a police station and declined to be interviewed. He complained further of pain and ill-health and was transported by an ambulance to Maitland Hospital and then transferred to John Hunter Hospital remaining under police guard. He remained in hospital for some months including several weeks in a coma.

12. Mr Thornton is now somewhat recovered, but arising out of operations he has a large and unevenly protruding abdomen, a readily noticeable disfigurement. He claims continuing back problems, post-traumatic stress disorder, and an impaired ability to perform domestic tasks.

4. The evidence of the incident

(a) Mr Thornton’s account

13. Mr Thornton claimed that he met Mr Roby to “walk”. He parked in the clearing at Cox’s Lane. “As soon as” he saw in his rear vision mirror the arrival of Mr Roby’s car, he “opened the door and go out…to go where Brett was”. He did not approach the right-hand driver’s side of Mr Roby’s car. Mr Roby parked two car lengths away. Mr Thornton then “noticed a white station wagon” which he “thought at the time…had a wheel on the roof” and a bale of hay on the tray of the truck. He said the car door was open on the left-hand side and a person was “standing on the running board”. The car was 20 feet away. Whilst the car was still moving, the person on the running board ran at Mr Thornton with a gun in his right hand, pointed it at him and pushed Mr Thornton with his left hand onto the ground. His bottom first hit the ground and he laid back while “the other person” remained standing and started to kick Mr Thornton’s right side.

14. Mr Thornton attributed no words to this person, who, he said, did not hold up his police identification, did not state he was the police, or say, “Don’t move, get on the ground,” or “You are under arrest.” Mr Thornton said, “Take me watch, take me wallet, take me money,” and believed he was being robbed. At some stage, this person said, “Get on the fucking ground." The gun was about 12 inches from Mr Thornton’s head. Mr Thornton stated that the thought of being “pistol-whipped” took his mind to his time in Grafton gaol and he said, “Don't torture me, I've been tortured in Grafton Gaol.” Mr Thornton denied moving away, falling backwards, yelling out anything else, or lying on his back and kicking out. He said his hands “were visible at all times”. He denied being tackled on the ground, receiving shoulder contact to his chest or struggling violently. He was not agitated but scared, and he had his eyes closed most of the time. He said he did not violently resist anybody whatsoever or thrash around. Mr Thornton said only the man’s boots came into contact with him. Most of the time he had his eyes closed. He said, “All I done was refuse to roll into me stomach. Now I know they’re police.”

15. Mr Thornton first denied anything else was said to him but then recalled the other person saying, “Here's another chapter for your book, Johnny,” as he continued kicking: Mr Thornton had written a book about his experience in Goulburn gaol. He then felt other people kicking him, noticed a woman’s face, thought she “may have dive bombed me with her knees because she knocked the wind out of me stomach”. He “was feeling tremendous pain all over my body”. He said he “didn't really know where me hands are” but that “[m]y hands were definitely visible at all times” and that after having “listened to the evidence, I believe that I stretched me hands out to try and prevent the body from being kicked so I'd copped the brunt of the kicks on my arms.” He said that someone “put a foot or a knee” on his nose and broke it, with “tremendous force”. He said, “[W]hen I got sprayed in the eyes…I went, ‘Oh, that's police,’ and I rolled onto me stomach, and I allowed myself to get handcuffed…I didn’t resist”. He said that only after the incident and him being searched did one of the police officers then identify himself and notify him that they were police officers.

16. Mr Thornton said that when the ambulance arrived he “was feeling in pain…All over my body, and the top half of me body…both sides of me ribs and me back” including both sides of his chest and “around into [his] abdomen on both sides”.

17. After about half an hour at the Raymond Terrace Police Station, Mr Thornton said he “was getting colder and colder” and complained, “I've been assaulted and bashed by police officers and I feel like I'm going to faint. Could you please get an ambulance.” Then Mr Thornton told a nurse, “I'm not the accused here, I'm the victim.” That is his last memory of the events. Sometime later he was told by his family that he had been “in a coma for a long period of time”, he “went into shock and…couldn’t talk for two days”. He noticed he was “hand-cuffed, leg-ironed”, and he remained in hospital until granted bail on 16 March 2011 in respect of drug offence charges. He returned home and “walked around with a suction pump on” his stomach.

18. By the time Mr Thornton returned home he had no real problems with his ribs or his nose but his low back “was really hurting” and for a month he had to “crawl to the bathroom…crawl to my bed and I had to drag a box”. The pain was nine out of ten in hospital and “went down to about four out of ten”. In doing housework, “I get tremendous back pain and through bending and everything I get cramps and I can no longer do what I used to do.” Mr Thornton gets embarrassed in public and has been asked by security to lift up his shirt to reveal his abdomen because its irregular appearance might suggest he is hiding something. It affects his social interactions including interaction with his children. Mr Thornton is 65 years old.

(b) Police Officer Brad Smith’s account

19. Mr Smith gave evidence that his vehicle was following Mr Roby’s vehicle at a distance of about 800 metres, and that when he arrived at the clearing Mr Thornton was beside Mr Roby’s vehicle, standing at the driver’s side door. Mr Smith, wearing plain clothes like the other officers, exited the vehicle, drew his gun and pointed it directly at Mr Thornton, and screamed loudly, “Police don’t move get on the ground.” Mr Thornton began walking away, backwards, and as Mr Smith advanced, walking towards Mr Thornton, Mr Thornton stumbled backwards onto the ground. He said Mr Thornton was yelling out, “Just shoot me, you may as well shoot me. I’m not fucking going back to gaol.”

20. Mr Smith continued to move forward towards Mr Thornton, re-holstered his firearm and said, “Police, don’t move,” extremely loudly. Mr Thornton began kicking with his legs towards Mr Smith. Mr Smith then tackled him to pin him to the ground. In doing so, Mr Smith’s right shoulder would have hit Mr Thornton’s chest. He was seeking to control Mr Thornton’s hands because he believed Mr Thornton was reaching towards the front of his pants for a gun.

21. Mr Thornton did not show his hands despite being so commanded a number of times. He was told, “You’re under arrest,” but Mr Thornton struggled violently, kicking and thrusting about. Mr Smith moved lower on Mr Thornton’s torso area. At that stage, Mr Smith believed that Mr Woods was present. Mr Smith was unable to restrain Mr Thornton. Then police officer Emilie Deacon jumped on Mr Thornton in the chest or head area. Mr Smith saw Mr Thornton try to bite Ms Deacon which caused Mr Smith to begin “knee striking” Mr Thornton in his lower torso area, and saying, “Stop struggling you’re under arrest.”

22. Officer Andrew Wheatley then came to assist by placing himself on top of Mr Thornton. Mr Thornton was still struggling. Mr Woods suggested a dose of capsicum spray and threw a can to Mr Smith. Mr Smith sprayed Mr Thornton’s face which caused Mr Thornton to submit, and he was then arrested and handcuffed. Mr Wheatley then identified himself and stated that both Mr Thornton and Mr Roby were under arrest for supplying prohibited drugs.

23. A statement of Mr Smith made on 2 February 2011 evidenced that Mr Smith punched Mr Thornton in order to subdue him and to prevent Ms Deacon from being bitten.

(c) Police Officer Emilie Deacon’s account

24. Ms Deacon was also involved in the arrest. She turned into Cox’s Lane and followed Mr Woods’ vehicle into the sandy clearing where Mr Thornton and Mr Roby were located. She heard Mr Woods and Mr Smith yelling, “Police. Don’t Move. Get on the ground. Police.” She saw Mr Smith standing about a metre from Mr Thornton, who was lying on his side with his hands in front of him and she saw and heard that Mr Thornton was enraged, face purple, screaming, “You’re going to have to fucking kill me I’m not going back to gaol.” It was the most violent resistance she had seen in her policing career. Ms Deacon held open her police wallet with a blue badge inside, and said, “Police, show me your hands, police.” Mr Thornton looked at her and said, “You’re going to have to fucking shoot me. I’m not going back to gaol. Just shoot me then.” Mr Smith then moved forward and wrapped up Mr Thornton, putting his body weight on his upper body and his legs behind Mr Thornton to contain his legs as Mr Thornton was kicking out at him. Ms Deacon then moved to assist, putting her firearm into her bum bag and taking hold of his upper arm and saying, “Get your hands out. Show me your hands.” Mr Thornton continued to lock his hands in tight and struggle, kick and wrestle, and tried to bite Ms Deacon’s hand. She then pushed his face down with her right hand as hard as she could whilst trying to drag his arm out with her left hand. The struggle with Mr Thornton continued until Mr Wheatley arrived, who knelt between Ms Deacon and Mr Smith and attempted to assist by pulling Mr Thornton’s arms out from the front of his body, whilst Mr Thornton was constantly screaming, “You’re going to have to shoot me, you’re going to have to fucking kill me, I’m not going back to gaol.” Mr Wheatley said, “Stop struggling you silly old bugger. You just give me your hands.” Then Mr Woods, who was behind Ms Deacon, said, “Here Smithy give him a dose of this.” A can of capsicum spray went past Ms Deacon and Mr Smith picked it up and sprayed Mr Thornton. She received some of the spray which caused her to cough, splutter and have some difficulty breathing. Mr Thornton soon ended his struggle as he began to cough and splutter from the capsicum spray. He was rolled forward and Ms Deacon handcuffed his hands behind his back. Mr Roby was about five metres away.

25. Ms Deacon denied that Mr Smith had punched Mr Thornton in the stomach, and did not recall or see him kneeing the plaintiff as forcefully as he could. She signed a statement within a day or so of the incident.

(d) Police Officer Andrew Wheatley’s account

26. Mr Wheatley followed the car driven by Ms Deacon into the clearing at Cox’s Lane. He heard Mr Woods yell, “Emilie needs help,” and he ran to see Mr Smith and Ms Deacon struggling with Mr Thornton. Mr Wheatley described that Ms Deacon was struggling with Mr Thornton’s head and chest area, and Mr Smith was struggling with Mr Thornton’s legs and torso. Mr Wheatley went between them and put his weight onto Mr Thornton, to stop him from struggling, kicking and trying to grab his arm. He heard Mr Thornton say “Just shoot me, I don’t want to go back to gaol,” and he heard Mr Smith say, more than once, “Stop struggling. You’re under arrest. Give us your arms.” He observed Mr Thornton’s arms tucked underneath in front of him. He said, “Stop fighting. Give us your arms.” Mr Thornton continued struggling, kicking and moving his legs and was rigid with his arms, refusing to obey the directions he was given. Mr Woods yelled “Give him some of this.” He then saw Mr Smith catch a can of capsicum spray thrown by Mr Woods from about five metres away, and spray that into the face of Mr Thornton. Mr Thornton then stopped struggling and was able to be handcuffed. Mr Wheatley then asked Police Inspector Jeffrey Farmer to call an ambulance. He told Mr Roby and Mr Thornton who he was, that they were under arrest for supplying prohibited drugs and gave them a warning about not being obliged to say anything because it will be recorded and may be used in evidence.

27. Like Ms Deacon, Mr Wheatley signed a statement within a couple of days of the events at Cox’s Lane. He denied that Mr Thornton complained of being assaulted by the police.

(e) Police Officer Jeffrey Farmer’s account

28. Mr Farmer arrived at Cox’s Lane after Mr Thornton was handcuffed. He arranged for an ambulance to be called after he spoke to Mr Thornton. Mr Thornton “was bleeding from the face areas” and said that “his ribs were sore” which he attributed to a car accident the previous Monday. He also said “my back’s fucked too”. Mr Thornton did not then attribute his injuries to the events of his arrest.

29. Mr Farmer was not asked to remember these events between September 2015 and the period shortly after the arrest of Mr Thornton. In cross-examination he also referred to Mr Thornton complaining of chest pains.

5. Analysis

30. Mr Thornton’s account faces some challenges. He claims to not have resisted. However, his evidence that he “didn’t resist” once he had been sprayed with capsicum spray is inconsistent with never having resisted. Indeed, he accepted as “Correct” that he “stopped fighting against these three people” once he was sprayed with capsicum spray. He concedes that he refused to roll onto his stomach, thus indicating resistance to the demands made of him by police. He also informed his doctor that his injuries occurred when he resisted arrest and refused to follow instructions (Exhibit C, p16). The triage notes at Hunter Hospital Emergency, of Mr Thornton’s admission later that day, repeatedly refer to resisting arrest and, alike with the ambulance report, make no reference to a belief about being robbed.

31. Mr Thornton’s evidence of a station wagon, of a bale of hay on the tray, of a wheel on the roof, and of a running board all are contrary to the other evidence, are not elsewhere supported and are inherently unlikely. The reference to a tray and a station wagon are internally inconsistent. His evidence of having his eyes closed for most of the time must lessen his ability to accurately describe what was occurring, including whether the blows he received were from punches, knee strikes or kicks, and from whom the blows came. That is presumably why he states in his next answer: “I believe that I was being kicked over all parts of my body”.

32. Other inconsistent evidence of Mr Thornton included that he said he was only contacted by the initial man’s boot, and yet he also asserted that he was pushed and a hand placed on his shoulder.

33. Mr Thornton’s belief about what he did with his hands and arms after having “listened to the evidence”, quoted above, indicates that some of his evidence is a reconstruction rather than a memory. His account is of a person only telling him to get on the ground and referring to his time in Goulburn gaol, and no explanation is given as to how these words to him indicated a robbery. He gave no evidence of other demands by any person indicating a robbery; his evidence of offering his watch, wallet and money in context indicate an attempt to dissuade the person from an assault, rather than a response to a demand. He gave no evidence of taking action to provide his wallet, watch or money, apart from his words.

30. The evidence of Mr Smith was that Mr Roby was followed at a distance of 800 metres, a distance to be expected given the purpose of following Mr Roby. That would allow Mr Thornton ample time to approach Mr Roby’s car from 20 feet away before the police arrived, if as Mr Thornton says, he was looking for Mr Roby’s car, he saw it in his rear view mirror, and he exited his car immediately to “go to where” Mr Roby was. Yet inconsistently, he denied ever approaching Mr Roby’s car.

31. Although there are minor differences in the accounts of the police officers, they are consistent in their evidence that Mr Thornton resisted arrest by not submitting, by screaming that he was not going back to gaol, by not relinquishing his arms and by kicking out. Both Mr Smith and Mr Wheatley gave evidence of Mr Thornton being told he was under arrest and Mr Smith and Ms Deacon repeated that they were the police. The police accounts of what occurred are supported by the contemporaneous statements of Messrs Deacon and Wheatley, both of whom gave evidence in a straightforward and precise manner which I found credible and persuasive.

32. Mr Thornton’s credit is weakened by his past criminal record. His account could have been assisted by Mr Roby but Mr Roby gave no evidence, and no explanation for Mr Roby’s absence was provided. The treatment of Mr Roby at the time of his arrest, not involving any evidence of violence, also is not supportive of the police having engaged in gratuitous violence against Mr Thornton.

6. Findings regarding the incident

37. I find that Mr Thornton was not in the act of submission, but was resisting, struggling and fighting with police at the time he received blows. I do not accept that he believed he was being robbed, nor that the police did not reveal who they were before the struggle commenced. I prefer the police officers’ evidence of what they said, and heard other officers saying, some of it contemporaneously recorded, than Mr Thornton’s uncorroborated recollection several years later, of what he heard, saw (when his eyes were not closed) and felt during the arrest, which occurred in the days before he was unconscious for an extended period.

38. I conclude that Mr Thornton was told at the outset of the appearance of the police that they were the police, that he should get on the ground and that he was being arrested. I am also persuaded by the evidence that he resisted arrest, that he strongly expressed a great reluctance to return to gaol, and that the force of three police officers and the use of capsicum spray were needed to subdue him. Caroline Puru gave evidence of seeing on his body “like a shoe shape bruise”, but she was unable to identify the location of this bruise, or the side of his body it was on. I found this evidence unconvincing and I reject Mr Thornton’s account that he was kicked with a foot. I find that Mr Thornton was subject to knee striking and punching by Mr Smith and high force and pressure to his nose or face by Ms Deacon.

7. Unlawful arrest

39. The basis of the claim for an unlawful arrest arises out of s 201 of the Law Enforcement (Powers and Responsibilities) Act 2002 (as it was on 4 December 2010) (“LEPRA”).

40. Section 201 of LEPRA relevantly provided:

“201 Supplying police officer’s details and giving warnings

…

(1) A police officer must provide the person subject to the exercise of a power referred to in subsection (3) with the following:

(a) evidence that the police officer is a police officer (unless the police officer is in uniform),

(b) the name of the police officer and his or her place of duty,

(c) the reason for the exercise of the power.

(d) (Repealed)

(2) A police officer must comply with subsection (1) in relation to a power referred to in subsection (3) (other than subsection (3) (g), (i) or (j)):

(a) if it is practicable to do so, before or at the time of exercising the power, or

(b) if it is not practicable to do so before or at that time, as soon as is reasonably practicable after exercising the power.

(2A) A police officer must comply with subsection (1) in relation to a power referred to in subsection (3) (g), (i) or (j) before exercising the power, except as otherwise provided by subsection (2B).

(2B) If a police officer is exercising a power to give a direction to a person (as referred to in subsection (3) (i)) by giving the direction to a group of 2 or more persons, the police officer must comply with subsection (1) in relation to the power:

(a) if it is practicable to do so, before or at the time of exercising the power, or

(b) if it is not practicable to do so, as soon as is reasonably practicable after exercising the power.

(2C) If a police officer exercises a power that involves the making of a request or direction that a person is required to comply with by law, the police officer must, as soon as is reasonably practicable after making the request or direction, provide the person the subject of the request or direction with:

(a) a warning that the person is required by law to comply with the request or direction (unless the person has already complied or is in the process of complying), and

(b) if the person does not comply with the request or direction after being given that warning, and the police officer believes that the failure to comply by the person is an offence, a warning that the failure to comply with the request or direction is an offence.

(3) This section applies to the exercise of the following powers (whether or not conferred by or under this Act):

(a) a power to search or arrest a person,

(b) a power to search a vehicle, vessel or aircraft,

(c) a power to enter premises (not being a public place),

(d) a power to search premises (not being a public place),

(e) a power to seize any property,

(f) a power to stop or detain a person (other than a power to detain a person under Part 16) or a vehicle, vessel or aircraft,

(g) a power to request a person to disclose his or her identity or the identity of another person,

(h) a power to establish a crime scene at premises (not being a public place),

(i) a power to give a direction to a person,

(j) a power under section 21A to request a person to open his or her mouth or shake or move his or her hair,

(k) a power under section 26 to request a person to submit to a frisk search or to produce a dangerous implement or metallic object.

(3AA) Despite subsection (3), this section does not apply to the exercise of a power to enter premises or to search premises or a vehicle, vessel or aircraft that is conferred by a covert search warrant.

(3A) If a police officer is exercising more than one power to which this section applies on a single occasion, and in relation to the same person, the police officer is required to comply with subsection (1) (a) and (b) in relation to that person only once on that occasion.

(4) If 2 or more police officers are exercising a power to which this section applies, only one officer present is required to comply with this section.

(5) However, if a person asks another police officer present for information as to the name of the police officer and his or her place of duty, the police officer must give to the person the information requested.

(6) This section does not apply to the exercise of a power that is conferred by an Act or regulation specified in Schedule 1.

41. As Mr Thornton and Mr Roby were being arrested or directed, the police officer performing the arrest was obliged to give evidence that the police officer was a police officer, his or her name, his or her place of duty and the reason for the arrest. There is no evidence that Mr Smith disclosed to Mr Thornton his name, his place of duty, or the reason for the arrest. Rather, I have found that he conveyed the information that he was a police officer, that Mr Thornton was being arrested and that he directed Mr Thornton to get on the ground and provide his hands. It is not disputed that relevant details were provided immediately after the arrest, at least by Mr Wheatley.

42. Accordingly, whether there has been compliance with the Act depends upon whether it was practicable to provide these details prior to exercising the power of arrest (s 201(3)(a)), the power to stop and detain (s 201(3)(f)) or the power to give directions to Mr Thornton, such as “get on the ground” and “give us your hands” (s 201(3)(i)) some or all of which were exercised during or at about the time of the struggle.

43. In Poidevin v Semaan [2013] NSWCA 334 at [25] and [28], Leeming JA stated:

“25 The time for compliance with s 201(1) depends upon whether or not it is practicable to do so before or at the time of exercising the power, or only at some later time. The explicit premise of the section is that there will be some occasions when a compulsive power referred to in s 201(3) may be exercised without being preceded or accompanied by the provision of information in accordance with s 201(1). In those circumstances, there is a lawful exercise of power or, to use the language of s 546C, the lawful execution by a police officer of his or her duty, notwithstanding the absence at that time of the information required by s 201(1)…

28 …The question of compliance with the duty imposed by s 201(1) turns upon an objective fact, namely, whether or not it is practicable to comply before or at the time of exercising the power.”

44. At the time Mr Smith approached Mr Thornton, Mr Thornton had moved away from Mr Roby’s car and was walking backwards away from Mr Smith. Mr Smith was aware from surveillance that Mr Roby had made attempts to obtain a firearm, and believed Mr Thornton might possess a firearm in his pants. On Mr Thornton’s evidence, Mr Smith ran towards him, although Mr Smith said he walked towards Mr Thornton holding his gun and pointing it at Mr Thornton. Apart from the possibility of violence, there was the possibility of escape by Mr Thornton who was failing to follow Mr Smith’s directions not to move and to get on the ground. Subsequently, there was the struggle as Mr Thornton resisted arrest.

45. Evidence that Mr Smith was a police officer might ordinarily be provided by holding up a police badge. But he was faced with a potentially armed person, resisting directions or arrest, and he had a drawn weapon aimed at Mr Thornton. I do not accept that it was practicable for him to, at the same time, hold up his badge or otherwise evidence that he was a police officer as he had declared himself to be (although Ms Deacon, as the second officer aiming, did manage to display her badge at about the same time). The evidence indicates that Mr Smith did identify the purpose of arrest as being the reason for the direction, “don’t move get on the ground”. In my view, the purpose of the arrest was not practicable to disclose in circumstances of resistance, struggle, the presence of weapons and potential escape. I note also that s 201(4) contemplates there being a proper exercise of the power if multiple police are exercising it, and only one officer satisfies the statutory requirements (e.g. by Ms Deacon displaying her badge).

46. Section 201(2C) also requires the provision of a warning about non-compliance with a direction. In the circumstances given, the display by Ms Deacon of her badge and the reason for the arrest, I do not regard it as practicable at that time to give the warning contemplated by that statute.

47. Accordingly, I find that the obligations imposed by s 201 were adhered to by the police officers, and therefore there was no unlawfulness in the arrest.

8. Assault and battery

48. I have found that Mr Thornton was resisting directions and arrest, fighting and struggling with the police. The police were entitled to use “such force as is reasonably necessary” to subdue him, including by knee strikes and punches, so as to effect the arrest or “prevent the escape of the person after arrest” (see LEPRA, s 231). Thus, the police were entitled to increase force in proportion to the force of the resistance (see Woodley v Boyd [2001] NSWCA 35 at [37]). The resistance of Mr Thornton involved him being “enraged”, his “face was purple” and it was the most violent resistance seen by Ms Deacon. I am satisfied that the force used - not involving use of any firearm or weapon apart from the ultimate use of capsicum spray - was reasonably necessary, and a reasonable person would view such force as not “disproportionate to the evil to be prevented” (Woodley at [37]). That reasonable force was used for effecting a lawful arrest provides justification for conduct that might otherwise be an assault or battery: see State of New South Wales v Williamson [2011] NSWCA 183 at [24].

49. Accordingly, I find that the police officers committed no assault on Mr Thornton and are accordingly not liable for any injuries resulting from his arrest and struggle.

9. Damages

50. As the parties have made submissions on damages, I propose to briefly state some findings in that regard, in accordance with the authorities, see Maricic v Dalma Formwork (Australia) Pty Ltd and Anor [2006] NSWCA 174 at [1], [2], [8]; Gayfer v Leahy (Court of Appeal (NSW), Hutley AP, Glass JA, Samuels JA, 14 September 1984, unrep) per Hutley AP, Glass JA.

51. Mr Thornton’s injuries have been described briefly above. There was a forceful challenge to the rib injuries being a result of arrest, both because of the evidence of earlier broken ribs, and a serious fall by Mr Thornton in the days before the arrest. However, the most significant injury alleged by Mr Thornton was not broken ribs but the abdominal disfigurement and disability resulting from a ruptured duodenal ulcer. This resulted in lengthy hospitalisation and is the primary ongoing disability.

52. I accept that Mr Thornton had gastrointestinal issues before the arrest. A ruptured duodenal ulcer indicates that prior to the arrest Mr Thornton had one or more duodenal ulcers. That was not seriously contested by Mr Thornton. The real issue is whether the circumstance of the arrest caused the rupture.

53. The evidence included knee strikes to Mr Thornton’s abdomen by Mr Smith, Ms Deacon putting her left knee on Mr Thornton’s side, and Mr Wheatley putting his weight onto Mr Thornton’s torso. I would assume such external force could cause the rupture of a duodenal ulcer, and there was no evidence to the contrary.

54. Mr Thornton on admission to hospital complained of abdominal pain and a body surface chart indicated a “semi circular red mark” around and above the navel. Other records from John Hunter Hospital indicated that he had a CT scan of his abdomen on 6 December 2010 for “continued abdominal pain and distention showed bowel perforation with free gas under the diaphragm and gastrograffin leaking from the duodenum”. That resulted in an operation on 8 December 2010 involving a laparotomy and repair of the duodenal ulcer and peritoneal lavage. This problem did not entirely resolve and further operations occurred on 23 December 2010, after Mr Thornton was intubated on 17 December 2010.

55. In these circumstances, I am persuaded that the severe disfigurement from which Mr Thornton now suffers, although in part caused by his pre-existing condition, was materially contributed to by the events of the arrest.

56. The plaintiff seeks an award of $250,000 for this condition. The cosmetic aspect of his abdomen condition, with its psychological consequences, is as significant as any physical disability arising from it, but taking into account Mr Thornton’s age, I would allow the sum of $200,000.

57. There is no established future out of pocket expenses other than psychiatric treatment. I would allow $10,000, being approximately 25 visits over two years. This would allow six visits over three months, 12 visits over the following 12 months, and seven further visits over the next year.

58. I do not accept past or future care. Although Mr Thornton may not be able to do all he could previously do, he has been able to take care of himself since shortly after his release from hospital.

59. In the month following discharge from the hospital, Mr Thornton says he was able to shower and dress himself but could not walk and had to crawl to the bathroom and bed because he had not exercised his leg muscles when in hospital. He could not do housework because he had back pain, stomach cramps and pain when bending over. He could not sit down and feels back pain when vacuuming. He says he has difficulty with hanging clothes, mopping and mowing (although when he feels well enough he forces himself to do it) because of pain when twisting, activities which he said he used to do for perhaps three hours a week before the incident. However, he appears to remain able to do washing, cooking, cleaning the toilet, with limited vacuuming and caring for Guy, his infant son. He does not ask for help and did not tell Dr Gibbs about his restrictions.

60. Mr Thornton’s partner, Ms Puru, covers for any housework he no longer does. She says it was at her instructions rather than his decision that he would stop when doing housework. She would prefer to do the housework herself rather than have him do it, and one of Mr Thornton’s sons does the lawn generally. Sean Thornton, another of Mr Thornton’s sons, who lived with Mr Thornton both before and after the incident, gave evidence but was not asked about Mr Thornton’s performance of domestic duties.

61. In these circumstances, I was not persuaded that Mr Thornton needed care. His restrictions sound in general damages, but he neither has engaged nor would he likely engage any paid assistance, and I do not find he requires voluntary assistance.

62. Thus, were liability established, I would allow damages of $210,000.

10. Orders

63. Accordingly, the orders of the Court are:

1. Judgment for the defendant.

2. Plaintiff to pay the defendant’s costs.

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Decision last updated: 01 September 2016