Binsaris, Webster, Austral & O'Shea v Northern Territory of Australia [2023] NTSC 79

Binsaris, Webster, Austral & O'Shea v Northern Territory of Australia [2023] NTSC 79 | Case summary | Zoe

[26]

[1] The plaintiffs Josiah Binsaris, Keiran Webster, Ethan Austral and Leroy O'Shea were all detainees within the Behaviour Management Unit (the BMU) at the Don Dale Youth Detention Centre (the Centre) in the Northern Territory on 21 August 2014. On that date, another detainee, Jake Roper, escaped from his cell, damaged property and caused a serious disturbance. Early in the disturbance, the plaintiffs Josiah Binsaris and Ethan Austral joined in the disturbance to the extent of damaging property within their cell, but remained within the cell.
[2] As part of the response to that disturbance, those in charge of the Centre decided to employ CS gas with a view to temporarily incapacitating Jake Roper so that he could be taken back into safe custody. CS gas is a form of tear gas that disables those who breathe it by inducing a burning sensation and tearing of the eyes, and intense irritation of the nose and throat, causing coughing and difficulty breathing.
[3] While the plaintiffs were not the target of the deployment of the CS gas, they were nevertheless exposed to it during that deployment. The deployment consisted of an initial instance of three bursts of less than one second each into the BMU, followed by another burst of about two seconds. When this did not render Jake Roper compliant, there was a second deployment consisting of about six short bursts of the gas into the BMU. This resulted in Jake Roper becoming compliant and Centre staff were able to enter the BMU and secure him.
[4] Once Jake Roper was secured, the cells in the BMU were unlocked and the plaintiffs were handcuffed behind their backs and taken to a basketball court where they were hosed down to remove any residue of the gas.
[5] Each plaintiff commenced a proceeding in this Court claiming damages for assaults and batteries said to have been committed during the events of 21 August 2014 and in the following days. One of the claims advanced by the plaintiffs was for damages for battery arising from the use of the CS gas in the BMU. At first instance, the plaintiffs succeeded on some of their claims, but the primary Judge entered judgment for the defendant in the claims based on exposure to the CS gas. The trial judge ruled that the deployment of the CS gas was lawful.[1]
[6] The Court of Appeal dismissed an appeal by the plaintiffs against the dismissal of their claims based on the use of CS gas.[2]
[7] The plaintiffs appealed to the High Court against the decision of the Court of Appeal dismissing their appeal against the primary judge's dismissal of their claims for damages arising out of the use of CS gas.[3] The High Court upheld the appeals, set aside the relevant orders made by the Court of Appeal and the primary judge, and remitted the plaintiffs' claims to this Court before another judge to assess damages. It now falls to me to assess damages, in the light of the judgement and ruling by the High Court.

[38]

[15] The circumstances in Bulsey were that the plaintiffs' home was forcibly entered by 6 members of the police 'special emergency response team' in the early hours of the morning. The male plaintiff was taken from his bed, handcuffed and dragged into the street. He was then held in custody, questioned, charged and remanded in custody. Ultimately, the charges against him were dropped. The female plaintiff, was faced with a team of armed police entering her home and shouting orders at her. Both plaintiffs sued the State of Queensland for damages for trespass to the person. The plaintiffs were unsuccessful at first instance, but succeeded on appeal. The Court of Appeal found that the male plaintiff had proven torts of assault, battery and false imprisonment, while the female plaintiff had proven the torts of false imprisonment and assault. The Court of Appeal awarded $165,000 in damages to the male plaintiff and $70,000 to the female plaintiff. Exemplary damages were excluded by statute, so that these sums comprised only general and aggravated damages.
[16] In Majindi, the plaintiff was 31 years old and was awarded damages for assault and battery, unlawful arrest and false imprisonment. He had been falsely imprisoned for 5 hours and 40 minutes, sustained a blow to his head with a baton, was handcuffed, unlawfully searched twice and struck a second time. He was awarded a total of $105,000.00 which included exemplary damages of $40,000.00.
[17] Kunoth-Monks was a defamation case in which the plaintiff was awarded $125,000.00 general damages on the basis of hurt feelings and damage to her reputation. The Court did not award aggravated damages and exemplary damages were precluded by statute. The present plaintiffs submitted that this award should be borne in mind when assessing damages for the tort of battery.
[18] I will now address the submissions made regarding the individual plaintiffs primarily directed to general and aggravated damages.
[19] I will deal with the submissions relevant to exemplary damages later in these reasons.

[53]

[21] As above, it was submitted that Leroy O'Shea was subjected to the effects of CS gas in the range between 4 ½ and six minutes before he was removed from his cell. It was further submitted in these proceedings that an award in the vicinity of $40,000 should be made for general damages for the use of CS gas with respect to all plaintiffs, noting there are some differences between them to some extent dependent on their behaviour during the disturbance.
[22] It was further submitted that an award of aggravated damages should be made to Leroy O'Shea as he, in common with the other plaintiffs, was not the reason why the CS gas was deployed. In the joint reasons of Gordon and Edelman,[12] their Honours stated: "There were no findings in the courts below, nor was it contended in this Court, that when the CS gas was used the appellant or Jake Roper were committing an offence that justified its use. Nor was there any finding that the appellants, as distinct from Jake Roper, were participating in a breach of the peace at the time of the use of the gas".
[23] Justice Gageler said lawful justification may be established in the face of a common-law action in battery if such an action had been brought by Jake Roper. Exposure of the other detainees to the CS gas could not be said to have been unintentional. His Honour found that exposure to the plaintiffs was understood by the Director and the Immediate Action Team to be the inevitable consequence of the decision to deploy the CS gas for the purpose of incapacitating Jake Roper and was carefully weighed by the Director in making that decision.[13] Gageler J reasoned the plaintiffs were in the position of bystanders who suffered collateral harm and were entitled to damages at common law to compensate for the harm for the simple reason that the use of force has interfered with their bodily integrity.[14] His Honour joined in the orders of the majority to allow the appeal and remit the matter, notwithstanding his view that use of the CS gas was lawful.
[24] It was submitted that given Leroy O'Shea's position as a bystander, or a non-involved person, there should be an award of aggravated damages. This would be in keeping with the reasoning of the High Court. Given his and the other plaintiffs' status as bystanders, it was an aggravating feature that none of the officers took the opportunity to warn them or reassure them of what was about to happen; that they would not be exposed for long and that they would be removed. As this did not happen, it was submitted Leroy O'Shea's fears were not subdued when they could have been.
[25] Further, it was submitted the plaintiffs were treated in a rough manner which can be seen from the available footage. They were handcuffed behind the back and made to lay face down on the basketball court. They were then hosed down. Leroy O'Shea was not involved in the incident at all, however was treated the same way as Jake Roper on the basketball court. It was submitted Leroy O'Shea and the other plaintiffs were not properly decontaminated or given proper first-aid in accordance with proper procedures, bearing in mind how dangerous the CS gas is. None of the plaintiffs were given timely medical attention, Leroy O'Shea recalled seeing a nurse for around two minutes. This did not occur until 10pm and it appears from the nurse's records it was thought all the plaintiffs had been capsicum sprayed.[15] The times noted on the Medical Records indicate very brief consultations.
[26] It was submitted this aggravated the physical harm as it prolonged the effects of the gas and aggravated emotional harm as there was no warning about what would occur. Treatment was not given immediately but rather Leroy O'Shea was handcuffed and placed on his stomach and hosed down. Despite the High Court's decision in this matter, there has not been any acknowledgement by the defendant that what took place in relation to the CS gas was unlawful, that it contravened the Weapons Control Act 2001 (NT), nor has there been an apology.
[27] It was submitted that an award in the vicinity of $40,000.00 for aggravated damages was appropriate for Leroy O'Shea, there being some acknowledgement that not all plaintiffs are in the same situation as Leroy O'Shea.

[78]

[36] These submissions were made after the High Court remitted the proceedings to this Court for further assessment of damages. The plaintiffs submitted that a consequence of the reasons expressed by a majority of the Judges of the High Court on whether the deployment of the CS gas had been unlawful was that the deployment constituted an offence under the Weapons Control Act 2001 (NT). This in turn is relevant to an award of exemplary damages.
[37] In that regard, in a joint judgment Kiefel CJ and Keane J accepted that a CS fogger, such as was used to deploy the CS gas on 21 August 2014, is a prohibited weapon under the Weapons Control Act. Section 6(e) of that Act provides that a person must not possess, use or carry a prohibited weapon except if permitted to do so by an exemption under s 12. Section 12(2)(a) relevantly provides that s 6 does not apply to a prescribed person acting in the course of their duties as a prescribed person in respect of a prohibited weapon that has been supplied to them by their employer for the purpose of the performance of their duties as a prescribed person. The officers who deployed the CS gas were prison officers who were not authorised to use CS gas in a youth detention centre. A prison officer only has power to use the weapon in a prison. 'The provisions of the Weapons Control Act and the Prisons Act did not authorise the use of a CS fogger in the detention centre. Its deployment was unlawful'.[17]
[38] As above, in a separate judgment, Gordon and Edelman JJ reached the same conclusion. Additionally, their Honours' said 'There were no findings in the Court's below, nor was it contended in this Court, that when the CS gas was used the appellants or Jake Roper were committing an offence which justified its use. Nor was there a finding that the appellants, as distinct from Jake Roper, were participating in a breach of the peace at the time of the use of the CS gas.'[18] While Gaegler J did not find the use of the gas unlawful, his Honour noted the plaintiffs were locked in their cells when the gas was deployed and were bystanders. Bystanders are entitled to damages.[19]
[39] The plaintiffs submitted that findings of the Royal Commission into the Protection and Detention of Children in the Northern Territory (the Royal Commission) are relevant to the plaintiffs' claims for exemplary damages in two ways. Firstly, the Royal Commission found that CS gas had been used on 21 August 2014 on children in circumstances where there were no guidelines, or legislative or policy safeguards, specific to youth detention centres regulating its use or any research results available as to the lethal contamination time in children.[20]
[40] The difficulty with relying on the findings of the Royal Commission is that unlike the case here, the Royal Commission was not bound by the rules of evidence, nor bound by pleadings when making its findings. Although it is tempting to simply adopt the work and findings of the Royal Commission, the Court here must be satisfied to draw conclusions from more limited material which is confined to this particular case, based in large part on the facts before and found by the primary Judge.
[41] The plaintiffs contend that these circumstances warrant a higher award of exemplary damages as it should have been clear to those who made the decision to deploy the CS gas, for whose actions the defendant is vicariously liable, that its use was unlawful.
[42] The plaintiffs submitted that there should have been up to date standard procedures making it clear that the use of CS gas within Don Dale was not lawful.
[43] Finally, the plaintiffs referred to two decisions which were delivered after their submissions of 14 October 2016. In Wooton v State of Queensland (No 5)[21] where the plaintiff was awarded $95,000 in damages under s 9 of the Racial Discrimination Act 1975 (Cth) for the arrest, tasering , handcuffing and shackling of the plaintiff arising out of a large-scale police operation during the 2004 protests on Palm Island. Of that sum, $65,000 was for physical shock and temporary pain, and humiliation and anxiety. The Court had no power to award exemplary damages.
[44] The second case to which the plaintiffs referred was Cruse v State of Victoria.[22] That case concerned a claim in assault and battery against police. In the course of a counter terrorism investigation, several members of Victoria Police raided the plaintiff's family home and arrested the plaintiff, causing injuries to his head and upper body. The plaintiff was subsequently diagnosed with post-traumatic stress disorder, and major depression with anxiety. The plaintiff was awarded $400,000 in damages for assault and battery including $200,000 in general damages, $80,000 in aggravated damages and $100,000 in exemplary damages. The plaintiffs accepted that this case is not relevant to assessing general damages in their cases because the award in Cruse was based upon personal injury. The plaintiffs submitted, however, that the awards of aggravated and exemplary damages are relevant.

[80]

[46] The defendant submitted that each of the plaintiffs have extensive histories of criminal offending, including offences of dishonesty. It was submitted accordingly that the Court should apply a high degree of scrutiny to their evidence. In particular, it was submitted that the demeanour of the plaintiff, Ethan Austral, when giving evidence should lead to the conclusion that he is an unreliable witness.
[47] With regard to the plaintiffs' claims regarding the use of CS gas, it was submitted that it is significant in assessing damages that the actions taken by or on behalf of the defendant were directed to controlling detainee Jake Roper. None of the plaintiffs were improperly targeted in the use of the CS gas, and they were unfortunate casualties of conduct directed towards addressing the behaviour of Jake Roper.
[48] The defendant submitted that if the plaintiffs were entitled to an award of damages, a sum of $20,000 in general damages should be awarded. It was submitted that Josiah Binsaris should be awarded less than the other plaintiffs as there was no evidence that he sustained any hurt, humiliation fear or embarrassment. The defendant noted that none of the plaintiffs testified that they had suffered any long-term health or emotional effects to justify an award of aggravated damages. Given the evidence that those present at the incident believed that the use of the CS gas was the only reasonable course available, it was submitted that an award of exemplary damages was inappropriate.
[49] The defendant referred to the evidence of James Sizeland and Kenneth Middlebrook regarding the circumstances surrounding the use of CS gas on 21 August 2014. I will take this opportunity to refer to their evidence. Mr Sizeland was the Deputy Superintendent of Don Dale at the time and Mr Middlebrook was the Commissioner of Correctional Services for the Northern Territory. Mr Sizeland swore an affidavit on 4 September 2016 in which he deposed to the following matters as background to the events of 21 August 2014:

[82]

[50] At about 5:05pm on the evening of 21 August 2014, after he had completed his shift, Mr Sizeland received a telephone report that the detainees accommodated in the BMU, including each of the plaintiffs, were misbehaving and throwing rocks or concrete pieces at staff entering the BMU. Mr Sizeland directed the staff at Don Dale to closely monitor the situation and give the detainees time to calm down. Mr Sizeland received a further call at about 7:45pm informing him that the detainees had not settled down and were becoming increasingly aggressive and violent. Mr Sizeland then attended Don Dale. On the way to Don Dale, Mr Sizeland received a further call advising him that Jake Roper had broken out of his accommodation unit, was armed and attempting to stab staff and to break out of the building. On 21 August 2014 Jake Roper was housed in unit 3 within the BMU, Josiah Binsaris and Ethan Austral were in unit 2 and Leroy O'Shea and Keiran Webster were in unit 4.
[51] On arrival at Don Dale Mr Sizeland had difficulty seeing what was happening within the BMU because the windows on the BMU entry door had been broken. He was not able to see much through CCTV cameras. There was a considerable amount of broken glass on the floor near the BMU entry, which Mr Sizeland considered to be a hazard to staff and detainees. It could also be used as a weapon. While trying to remove the glass, Jake Roper threatened to stab Mr Sizeland. Attempts to calm Jake Roper down were unsuccessful and he continued to yell abuse, throw objects around the BMU and hit doors with a fire extinguisher.
[52] At about 8:34pm a Response Team arrived at Don Dale. This team consisted of three prison officers. They were briefed by Mr Sizeland that Jake Roper had escaped from his cell, was damaging furniture and windows within the BMU, and was threatening staff. Mr Sizeland also told the Response Team that the detainees in unit 2 had made a hole in the steel mesh at the front of their cell and were able to throw things out of the cell. At the direction of Mr Sizeland the Response Team forced entry into the BMU using shields, and were able to remove the glass from the floor. While this was occurring, Jake Roper discharged a dry powder fire extinguisher at the Response Team.
[53] Shortly after the glass was removed, Mr Sizeland was informed that a Youth Justice Officer had been injured when Jake Roper threw a metal pole through a window from the BMU into a store room. Due to some of the objects being thrown by him, a Youth Justice Officer's arm was cut. A further attempt to gain entry to the BMU was unsuccessful as the external door to the BMU had been damaged.
[54] In his affidavit, Mr Sizeland said:

[90]

[55] Mr Sizeland considered the options available and determined that the least use of force to deal with the emergency situation that could be applied in the circumstances to prevent injury and harm to detainees and staff was the deployment of CS gas. Mr Sizeland was trained in the use of CS gas and had been exposed to it many times. He described the effects as uncomfortable and, in large doses, temporarily incapacitating. His understanding was that CS gas did not have long-term effects. In these circumstances, he thought the deployment of CS gas was authorised. Arrangements were put in place to decontaminate detainees from the CS gas as soon as they were removed from the BMU.
[56] Mr Middlebrook testified that he attended Don Dale after being notified of the incident involving Jake Roper on the evening of 21 August 2014. He was informed that Jake Roper had smashed the windows into the admissions area, had smashed the storeroom windows and had glass available to him. He was told he was throwing the glass at officers when they attempted to talk to him and had discharged a dry powder fire extinguisher. There was also a concern that detainees had damaged light fittings and light switches which could lead to a loss of lighting in the BMU. Mr Middlebrook concluded that the situation needed to be resolved quickly. He testified that other options, including the use of a police dog or forced entry to the BMU using shields and batons, were considered and rejected due to the likelihood of injury to either Jake Roper or to Corrections and prison staff. Mr Middlebrook believed that the use of CS gas was the only viable option.
[57] The defendant referred to the decision in White v South Australia,[23] in which a number of protesters were unlawfully arrested, falsely imprisoned and subject to various batteries. One of the protesters was an 11-year-old girl. She was in a group of protesters who were sprayed by police with capsicum spray. She was affected by the gas, and was in fear and suffered pain and discomfort as a result of the use of the gas. She was awarded $10,000 in general damages, $5000 in aggravated damages and $3000 in exemplary damages.
[58] Another adult offender was tackled to the ground by police and her face was pushed into the dirt and her hair was pulled. She was restrained and sprayed with capsicum spray at close range in the eyes and nose. She was unlawfully arrested and placed in a vehicle. She was verbally abused by police and insulted. Personal items were broken or damaged as a result of police conduct. She was imprisoned in a shipping container for three hours and exposed to fumes and smoke from nearby welding. She was falsely imprisoned for a total period of seven hours. As a consequence, she suffered depressed mood and anxiety for two years. She was awarded $40,000 in general damages, $25,000 aggravated damages and $15,000 in exemplary damages.

[93]

[64] Those who made the decision to deploy CS gas did so in a pressured environment. The primary Judge and the Judges of the Court of Appeal, not faced with the same pressure, reached the conclusion that the use of CS gas was lawful. This demonstrates, the defendant submitted, that the unlawfulness of the use of CS gas was not obvious and supported the submission that its use was not the result of deliberate disobedience to the law.
[65] The defendant also noted that the CS gas was deployed in aerosol form which allows the operator control over delivery. The plaintiffs were removed from the BMU as quickly as could safely be managed and decontaminated. The plaintiffs engaged in coughing, spitting, swearing and laughing when they were decontaminated. It was submitted that in the video footage the plaintiffs did not appear particularly distressed or concerned about the events which had occurred.
[66] The defendant accepted that damages should reflect the unquestionably unpleasant experience of indirect exposure to the CS gas, but there is no basis to conclude that the effect was more than transitory. Consistent with the findings of the trial judge as to credit, the video footage, the medical evidence and the disavowal of any personal injury claim by the plaintiffs, damages should not be assessed on the basis of the more extreme allegations raised by some of the plaintiffs.
[67] Josiah Binsaris did not give evidence and relied on inferences as to the manner in which the CS gas affected him. The defendant submitted that the contributions of Ethan Austral and Josiah Binsaris to the events of 21 August 2014 should be reflected in the award of damages to them. The defendant also submitted that there was no evidence of humiliation arising from the plaintiffs being affected by the CS gas.
[68] The defendants submitted the general damages for the transitory physical effects of indirect exposure to the CS gas should be modest. An award for exemplary damages is not appropriate for substantially the reasons given by the trial judge. In that regard, the trial judge said, at [392]-[393]:

[97]

[74] Although the facts found by the primary Judge are not challenged and are relied on here, there are additional considerations relevant to fact finding in the sense that there is now a significant question about how the unlawfulness of the use of the CS gas should affect the assessment of damages. To that extent, some of the relevant issues which fall for consideration here, were not part of the reasoning of the primary Judge because they were not required to be.
[75] Many of the claims before the primary Judge were not related to the matter now under consideration. As pointed out by counsel for the defendant, some of the other claims are closely related to the deployment of the CS gas. An example is the claim at [23] of Leroy O'Shea's Second Further Amended Statement of Claim which includes a sequence of allegations 'marshalling guards in riot uniforms and equipment, and bringing in attack dogs as well as administering CS gas intentionally or recklessly'. Those parts of the claim which failed before the primary Judge, save for the use of CS gas remain undisturbed. So much is clear, however it is appreciated caution is required. The defendant also pointed out the findings about why the CS gas was used and that those findings remain intact including why it was regarded the safest option available. While that may be so, it seems on remittal that the option of the CS gas, how or why it was considered and then used by the officers informs the findings. While respecting the primary Judge's findings, the assessment here must be undertaken on the understanding that the 'option' of the use of CS gas was unlawful. The findings of the primary Judge must now be understood in that context.
[76] That the High Court found the use of CS Gas to be unlawful in a youth detention context must inform the award of damages in a substantial way. There would be no point in remitting the matter for assessment of damages before another Judge if this was simply a technical matter. This was not an adult facility. This was a facility to detain children and youths, albeit in an institution which on the evidence before the primary Judge was "really beyond its life fit for purpose".[26] That being the case, notwithstanding some of the plaintiffs were difficult and hard to control youths, as might be expected in a youth detention centre, the deployment of an unlawful weapon which affected other youths who were in their cells must have some impact on the award of damages.
[77] It is the case as the respondent submitted, the trial Court and the Court of Appeal ruled that the use of the CS gas was not in breach of the Weapons Control Act. While in those circumstances lack of knowledge of the unlawfulness of the use of the CS gas mitigates the position of the officers involved to some degree the same benevolence should not be extended to the Northern Territory. A review of the material before the primary Judge does not indicate that the lawfulness or otherwise of the CS gas had ever been seriously reviewed at an institutional level or that the individuals concerned had turned their mind to the issue. This includes senior officers. There was no indication that advice about the lawfulness or otherwise of such a weapon was ever sought by any relevant Department, the Detention Centre itself or any individual at a time before the occurrence of any critical event such as the one which developed here. There is no evidence that the Youth Justice Officers, including senior officers knew they had positive lawful authority to use the CS gas in a youth detention setting.
[78] It was pointed out in submissions that neither Mr Sizeland, nor Mr Middlebrook, according to their evidence, turned their minds to the question of lawfulness. Mr Sizeland recommended to Mr Middlebrook that the CS gas be used but that "The training did not deal with the use of CS gas on young people in youth detention".[27] He was not aware that the CS gas fogger was a prohibited weapon or that resources were available with reference to use of CS gas in youth detention centres. While Mr Sizeland denied that he knew it was not authorised, there was no evidence he or Mr Middlebrook turned their mind to the question of the lawfulness of the use of the CS gas fogger.[28] Needless to say, senior officers should know, or should find out whether the use of particular weapons are lawful or not in the setting concerned, in particular of a youth detention centre.
[79] I do not underestimate the challenges which the Youth Justice Officers faced on this occasion. I proceed on the basis of the primary Judge's description with respect to how the events unfolded, noting much of disturbance was created by Jake Roper, with some involvement at an earlier time by the plaintiff's Josiah Binsaris and Ethan Austral. Keiran Webster and Leroy O'Shea were not involved in the relevant disturbance. They were playing cards in their cells. The following is extracted from the primary Judge's findings:

[126]

[80] The level of the hazard was plain at various times in the lead up to the deployment of the CS gas as set out in the primary Judges findings above.
[81] As above, the primary Judge also found Mr Middlebrook thought the incident would escalate and thought it needed to be brought to a close quickly. There was also concern expressed about damage to the electrical fittings which was influential in the decisions made about how to bring the disturbance to an end. The advice was that Jake Roper could not be brought down. To attempt to access him was thought to be dangerous and there were concerns about what Ethan Austral and Josiah Binsaris would do given they had made a hole in the wall and had earlier thrown pieces of concrete out.
[82] The defendant submitted the plaintiffs Ethan Austral and Josiah Binsaris were not in the category of innocent bystanders and were part of the reason why other options were not resorted to before the use of the CS gas.
[83] The misconduct of those two plaintiffs on the particular evening is required to be taken into account, however as noted above by members of the High Court, the plaintiffs were bystanders at the time of the deployment of the CS gas. The detention centre was not fit for purpose. As already mentioned, given those circumstances, difficult behaviours may be anticipated given the very purpose of the Detention Centre is to detain children and youths who have committed (often) serious offences and are likely to have come from difficult to extremely difficult social circumstances. While significant latitude is to be given to officers attempting to perform their duties in the heat of a dangerous or emergency situation, it is still fundamental those duties be performed lawfully. The defendant did not give the officers the knowledge or tools to deal with the situation lawfully.
[84] It is appreciated there is a level of abstraction involved in this assessment as the primary Judge was dealing with this issue as though the use of CS gas was lawful. As a ruling has been made by the High Court that its use was not lawful, the CS gas cannot now be considered as a reasonable option. The primary Judge ruled out a number of other options the officers could have taken, but that was in a context where the use of the CS gas was an available option. As its use was unlawful, it cannot now be found to have been reasonable. Had the officers known deployment of the gas was unlawful they would have considered other options. For example, reference was made by the primary Judge to an earlier incident in which police negotiators talked detainees down from the roof of the Detention Centre. Calling police was rejected as an option, however it may be reasonably inferred that conclusion would have been different if the CS gas was not an available option.[29] That option may have been available even accepting the previous incident when police were called had not reached the same level of concern as here. By force of circumstances other options would have been considered but were not taken up given the Youth Justice Officers resort to the CS gas.
[85] Although the Court is required to have regard to the difficult circumstances the officers faced, the footage from Handycam 209 tendered and played, while showing the volatile circumstances and behaviour of Jake Roper, also shows a level of hostility, high handedness or disparaging comments on the part of some officers towards detainees. For example, when determining how to deal with Jack Roper, one of the officers who is unknown said "Nah, let the fucker come through because while he's coming through, he'll be off balance. I'll pulverise the little fucker. Oh shit, you're recording". One of the officers who was in that conversation which took place in the storeroom then said "Go grab the fucking gas, we'll gas him through fucking, get Jimmy to gas him through here."
[86] After the gas was deployed, the footage shows two of the plaintiffs in their cell and two (Keiran Webster and Leroy O'Shea) looking out from their cell and being removed, covering their faces with their hands and either clothes or bedding while the CS gas is being deployed. Prior to being removed from their cells they are seen taking cover under a mattress. When Jake Roper reacts to the spray, the officers in the storeroom are heard to laugh and say "That'll learn you" and "Now he's shitting himself".
[87] When the dog handler Mr Lording arrived in the dining room and asked whether they will "gas the lot of them", Mr Middlebrook responded with the words "I don't mind how much gas you use".[30] The primary Judge noted Mr Middlebrook's evidence when he was asked about that comment and he said "Look, you know, that seems like a very callous comment that I made but I wasn't talking to the IAT officers. I was responding to Mr Lording, the dog handler [who had asked whether or not it was proposed to gas the lot of them]. I knew they had aerosol. I knew that aerosol pack was a limited amount of gas. I knew that the officer who was going to deploy the gas was fully trained, and would have understood how much to actually use to bring Mr Roper under control. I also made sure, and what's not captured on the Handyman, is the fact that I made sure that the officers got the fire hoses rolled out ready to decontaminate the juveniles. And what else is not captured is the fact that we organised the staff into teams to go into that area to remove the juveniles. The other thing I was very mindful of is that only the IAT officers had personal protection and so the officer that deployed the gas fully understood that staff without that protective equipment were going to have to go in there and remove detainees as well." While Mr Middlebrook acknowledged the harshness of his comment, the answer that followed addressed many other subjects but did not explain the comment. The primary Judge did not give the comment the Court's imprimatur.
[88] In the context of the claims for general and aggravated damages there is documentary evidence of Correctional Services material[31] which sets out in some detail the hazardous nature of CS gas including its recognised health effects. The likely effects strongly support the evidence given by the plaintiffs. It also deals with first aid matters. This includes instructions to flush the victim's eyes with water or saline solution for 15 to 20 minutes. Further, Exhibit P24 was a training manual for the IAT ('IAT Course Material') produced at trial on behalf of the defendant. It too describes the physiological effects including: extreme burning of the eyes, irritation of the nose and throat, tightness of the chest, difficulty in breathing, possible fear of suffocation, dizziness, vertigo and nausea. It also gives instructions on removal from the contaminated area and washing or showering with cool water for three to five minutes.
[89] The IAT Course Material also warns of toxicity and notes 'Normal exposure during outdoor use causes no known lasting effects'. The CS gas was not deployed outside, it was in a confined space making it more concentrated than when it is used disperse outside crowds. The IAT Course Material warns that if in large enough concentrations, it can cause serious injury or death. The plaintiffs could not leave their cells so on their case were placed at greater risk than being subject to the gas outside. That risk is likely to have been mitigated due to the method of dispersion being calibrated for use indoors as the amount of gas can be controlled. In any event, the IAT Course Manual warns 'when CS is released in a confined space, the possibility of an overdose must be considered. If the time for a lethal dosage is calculated to be 10 minutes, then theoretically, a person in the room has only a 50/50 chance of survival after 10 minutes'. It seems obvious from the IAT Course Manual that there are certain risks in releasing the gas into a confined space. The heightened risk on the defendant's case did not eventuate as the dosage was modified for indoor use for safety reasons. I accept that to make a final conclusion, expert evidence is required. However, the IAT Course Material does highlight the dangers associated with the gas. This was not an innocuous substance.
[90] Leroy O'Shea and Ethan Austral were asthmatic. Their health status was not checked as the procedures which pertain to adults dictated it should have been. They were at greater risk due to their medical conditions. They gave evidence of having been given asthma medications previously at the Detention Centre.
[91] I now return to the question of exemplary damages. According to Lunz,[32] exemplary damages may be awarded for any tort that is committed 'in circumstances involving a deliberate, intentional or reckless disregard of the plaintiff's interests'. Whatever the cause of action, there must have been 'conscious wrongdoing in contumelious disregard for another's rights'.[33]
[92] The defendant strongly opposes any award of exemplary damages. The basis for the opposition is that such an order would impact negatively or unfairly on the various officers involved, notwithstanding the Northern Territory accepts it is vicariously responsible for their conduct. Additionally, the following arguments were put. The officers did not know the deployment of CS gas in a detention centre was unlawful. It was not obviously unlawful, as later the trial Court and the Court of Appeal found it was lawful. In the difficult and dangerous circumstances of the disturbance, using the CS gas was the safest option. The independent expert evidence of Mr Kelleher was that use of the gas was the least hazardous option available. The plaintiffs were immediately decontaminated and they saw a nurse later that evening where no adverse health outcomes were noted.
[93] If the Court was considering the liability for damages solely of the individual officers concerned a different view might be taken. Here the Northern Territory as defendant at that time allowed an environment to exist where senior officers did not know the extent of their powers when dealing with some of the most vulnerable in the community. The defendant has the right, indeed the obligation, to hold children and young people in detention on remand or to serve sentences imposed by the courts. With that right or obligation comes a high level of responsibility. As well as maintaining order of a detention centre, under s 151(3)(c) of the Youth Justice Act the Superintendent of a detention centre must ensure the safe custody and protection of all persons within the precincts of the detention centre. The Superintendent must also supervise the health of detainees. The fact the officers of the defendant did not know that a particular weapon used in the detention centre was unlawful, meant the defendant failed in some of its most fundamental duty to keep detainees safe. The fact that courts after the event found on a technical basis the use of force was lawful is largely irrelevant. It was an unlawful use of force.
[94] In Lamb v Contogno[34] the High Court quoted from Mayne & McGregor on Damages when describing exemplary damages:[35]

[130]

[96] The awards to be made for general and aggravated damages will be appropriate for the amount of time the plaintiffs were subject to mistreatment constituting battery and its associated distress, physical and psychological. The conditions which gave rise to this unlawful use of force perpetrated on youths in a Detention Centre for whose safety and wellbeing the defendant was responsible for must never be allowed to happen again. I accept the difficulties the Youth Justice Officers experienced, however the defendant must take responsibility for putting them in that position or creating the conditions where they thought they had no option but to resort to unlawful unreasonable and excessive force. The mode of force used should not have been in the range of options available but it is the Northern Territory as the defendant who bears that responsibility. Young people in custody must be protected from exposure to such danger. This is fundamental. The Court must demonstrate its disapproval of the Northern Territory allowing this to take place, noting the Northern Territory accepts vicarious responsibility for the acts of the officers. The plaintiffs have made good the propositions set out at [11] above with respect to the claim for exemplary damages.
[97] In awarding exemplary damages I have regard to the fact the plaintiffs for the most part were bystanders. They were not the reason the CS gas was deployed. As youths under 18 and under the care of the defendants, the Northern Territory was responsible for their safety and welfare. Senior officers working in a youth custodial situation should never have been placed in a situation where they thought it was lawful to use a weapon when it was not. The unlawfulness goes further than mere negligence. It is a contravention of an offence provision of the Weapons Control Act. The deployment of the CS gas was deliberate. Its purpose was to incapacitate Jack Roper but the plaintiffs were directly exposed to it. They were treated as though they were the troublemakers. The trouble caused by two of the plaintiffs was earlier than the deployment of the gas and not at the level of Jack Roper's conduct. At the time of the deployment the plaintiffs were in their cells. As above the excerpts from the footage give some insight into the callous way the plaintiffs were treated both during and after the exposure. The incident as a whole shows the plaintiffs were treated in a manner which recklessly disregarded their rights and interests.
[98] While some acknowledgement of wrongdoing or an apology by the defendant may have lessened the need for a punitive approach to damages, after such a lengthy time since the critical incident it is not such a significant factor. I accept, as reminded by counsel for the defendant that the defendant participated in and helped facilitate the Royal Commission and Board of Inquiry into the Protection and Detention of Children and that is in its favour. Further, through observation of the work of the Court it is clear there have been some improvements in terms of programme availability in the Detention Centre and some legislative change. There has been implementation of a number of the recommendations of the Royal Commission and Board of Inquiry which took place after this incident, but I am principally having regard to the events of 2014. This must never be allowed to happen again.
[99] On behalf of the plaintiffs, it is argued their Indigenous status is relevant. The Northern Territory disagrees. The fact the plaintiffs are Aboriginal is a factor. Unlawful actions by any arm of law enforcement, including Correctional Services, towards Aboriginal people adds to alienation and disengagement from the broader community for complex reasons which for many, but not all Aboriginal people, continue to resonate. It lessens trust between citizens and law enforcement authorities and lessens social cohesion in the broader community.

[140]

[111] I have regard to the fact the plaintiffs were not the targets of the CS gas. They were all in their cells. They could have been, but were not told what was about to happen. One of the plaintiffs gave evidence there was an intercom. In any event they had no reassurance that this would be a brief dose of the gas, that they would be safe and would be taken out of the cells. There is a sense of grievance expressed as to why they were treated roughly, hand cuffed from behind, placed on the basketball court on their stomachs and hosed. It was in order to decontaminate and contain them but it was a rough process. Given what they had endured, they deserved to be treated with more care than the callousness evident on the available footage. The plaintiffs look uncomfortable on the footage. They had not behaved like Jake Roper. Leroy O'Shea and Ethan Austral were asthmatic. They deserved more care after what had occurred but were not seen by a nurse until 10:00pm and then only briefly. The post exposure treatment extended the distress felt. The manner used for decontamination was humiliating.
[112] There were however, fortunately no lasting effects. No further health concerns appear to have been reported to the nurse. The defendant points out the plaintiffs do not appear to be distressed when they are handcuffed on the ground and notes at times they are laughing. They were laughing at times when they could see each other's faces, however that reaction could be for many reasons. It can readily be inferred that there would be a sense of relief after experiencing the sensation of not feeling as though they could breathe when they were in their cells. The three plaintiffs who gave evidence about that part of the episode should receive some form of aggravated damages for the rather callous treatment after the exposure to the gas and the extended physical and psychological consequences. The use of force in the form of the CS gas was contrary to the Youth Justice Act and the obligations on Youth Justice Officers to keep detainees safe. This is all in the broader context of an unlawful use of force. As there is no evidence from Josiah Binsaris, I am unable to make an assessment under this head of compensatory damages.
[113] I will award $20,000 each of the plaintiffs, Keiran Webster and Leroy O'Shea as aggravated damages. I will award Ethan Austral $15,000.
[114] For the reasons already stated and to ensure the defendant knows this must never happen again and to show the Court's disapprove of unlawful force being used on children or youths in detention, I will award $200,000 to each plaintiff by way of exemplary damages.
[115] The plaintiffs claim interest. Interest is potentially applicable to the award of general damages. I am mindful the incident giving rise to this action took place in 2014, some nine years ago. The question of whether interest is to awarded and at what rate is principally governed by s 84(1) of the Supreme Court Act 1979 (NT). Section 84(1) states the Court 'may order that there shall be included in the sum for which judgment is given, interest at such rate as it thinks fit on the whole or any part of the sum for the whole or any part of the period between the date when the cause of action arose and the date of the judgement'. Although it is appreciated the discretion is wide, it must be exercised judicially.
[116] This plaintiffs are unlike a commercial entity where particular features which are not present here apply. On the one hand it is appropriate that the sums awarded under general damages keep their value. On the other hand the plaintiffs will have the benefit of a reasonably significant sum through the award for exemplary damages. Although that it is not at all the purpose of the award for exemplary damages, as a matter of fact the plaintiffs will not be out of pocket by virtue of not being awarded interest for the sums awarded for general damages. In the exercise of the discretion there will be no award for interest to be paid.
[117] Based on previous practice and time required by government parties to make arrangements for payments of this kind, the defendant will be allowed 21 days from 1 September 2023 to pay the plaintiffs the sums awarded.
[118] As previously arranged, these reasons and orders will be forwarded to counsel.

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