Hannam v State of New South Wales

Hannam v State of New South Wales - [2022] NSWSC 648 - NSWSC 2022 case summary — Zoe

[7]

The plaintiff's previous experience of MDMA and other illicit drugs

As at 20 February 2016, the plaintiff was familiar with the effects of MDMA (ecstasy), having "snorted" it himself in powder form (from a capsule or tablet) in the presence of others on prior occasions. The plaintiff's experience was that snorting MDMA produced an immediate effect and tended to make users euphoric, emotional and generous to others, which might lead them to embrace others. It also tended to reduce sensations of anxiety or concern. When asked what he knew about the effects of MDMA when combined with alcohol, the plaintiff responded that he had never thought about it before but agreed that the possibilities were "open". The plaintiff had also taken ice (crystal methamphetamine) as a performance enhancer when he was under pressure to perform commercial jobs within a deadline.
Although he denied that he consumed illicit drugs "regularly", the plaintiff also used marijuana, speed (another amphetamine) and cocaine. In his youth, the plaintiff's illicit drug use had also included steroids to assist in weightlifting. From the age of about sixteen, while he was still at school, he had taken speed, at least when attending rave parties. The plaintiff's father agreed in cross-examination that the plaintiff's use of illicit drugs was a constant feature of his life.
The plaintiff accepted that, on 26 March 2011, he had been admitted to Royal North Shore Hospital following consumption of alcohol, ice and Xanax. He accepted that he had given a history that he had been consuming ice every day in the two days prior to his admission. These admissions were supported by the hospital's discharge summary which recorded: "[The plaintiff] presented to RNSH [Royal North Shore Hospital] after being found at home by friends confused and with decreased level of consciousness. That night he had consumed a cocktail of alcohol (unable to quantify amount), ice, and Xanax. [The plaintiff] had been using ice continually in the preceding 2 days. We were not able to elicit an event that precipitated this drug binge (after several months of abstaining from ice). He reported increased anxiety and agitation after taking these drugs and so took several alprazolam [Xanax] in an attempt to counteract these effects. He was unable to quantify the amount of alprazolam however 2 empty bottles were found in his house (50 x 2mg tablets per bottle)."

[16]

My findings of what occurred

The following narrative is based largely, except where otherwise indicated, on the evidence of Constable Goulding, which I accept and which is substantially corroborated by the evidence of other officers. I will refer to police officers by their rank at the time of the incident.
The call was classified as "priority 2", which required an urgent response. There was a response from a number of Harbourside (HS) units. HS 37, which comprised Constable Aaron Dennis and Probationary Constable Simon Herold (who was then 6 months into his probationary period of 12 months) was the first to respond.
Probationary Constable Herold was armed with an Axon model X26E Taser X00-673320 (the taser). The taser consisted of a capsule with two containers each of which housed a probe with a barb on the end to be fired into the body of the target. The top probe was designed to project straight out from the taser, whereas the bottom probe was designed to project 8 degrees down from the horizontal. Each probe was attached to the taser by a 7.62m wire. After firing, the probes remained attached by their wires to the taser.
A taser is a weapon which enables two barbs attached to wires to be fired at a person. When the barbs make contact with the person's body, an electrical circuit is completed. The charge which passes through the person's body results in Neuro Muscular Incapacitation (NMI), which causes the person to fall to the ground. A taser is, thus, a significantly less harmful weapon than a gun, because it effects only temporary incapacitation.
Probationary Constable Herold had performed a "spark test" on the taser just before starting his shift to confirm that it was safe and operating. He signed out two taser cartridges in accordance with what he understood to be standard operating procedure. Constable Dennis was not armed with a taser.
The taser, which Probationary Constable Herold was carrying, was fitted with an audio-visual recorder. According to the manual, the recorder is activated any time the safety switch is in the up (armed) position. The purpose of the recorder, according to the manual tendered by the plaintiff, is to "[allow] officers to capture vital information prior to, during, and after the deployment or potential deployment of the [taser]."
At 11.57pm, HS 35, which comprised Constable Benjamin O'Brien and Probationary Constable Sean Chen responded, as did HS 36, which comprised Constables Goulding and Tran. Each of these officers had commenced his shift at about 7pm on 20 February 2016. This shift, the night shift, ended at 7.30am on 21 February 2016.
HS 131 also responded, as did HS 16, which comprised Constable Alison Johnson and Probationary Constable Michael Ford.
When Constables Goulding and Tran arrived outside the unit block at about 12.02am, Constable O'Brien and Probationary Constable Chen (who had arrived at 12.00am) as well as Constable Dennis and Probationary Constable Herold (who had arrived at 12.02am) were already there. They were speaking to a woman who introduced herself as Fiona Herriott. I accept Probationary Constable Herold's recollection of what occurred (which appears from his answers in a directed interview which was conducted about 24 hours after the incident) that Ms Herriott had told police that: "[The plaintiff]'s an extremely big man, strong looking and he is aggressive and he's been on MDMA. He thinks he's done some bad acid but it's definitely MDMA."
When Ms Herriott saw the six police officers, she asked, "is that all we got?". Constable Goulding, who, as a Constable 5, was the most senior officer there, considered that six officers would be sufficient. However, Ms Herriott's question led him to call the police radio operator. The call is recorded in the police radio log as follows: "HS 35: … can I just check how many police cars are coming here? We've just been told this bloke's fluffin' huge and extremely violent. We're going to need cars."
At about this time, Senior Constable Aaron Gaskell was performing stationary speed enforcement duties with Constable Stephen Smith on Berry Street, North Sydney as part of the Mosman Highway Patrol unit. When they heard the further request for police assistance on the police radio, they drove to the unit block, where Senior Constable Aaron Gaskell saw six police officers on the footpath speaking to a woman.
Ms Herriott used a pass to take the first six police officers up in the lift to Unit 1. At some stage, Ms Herriott said, in their presence, that the plaintiff had tried to jump off the balcony on the Military Road side but that the guests at the party had managed to coax him back. She also told them that he had taken MDMA and that the plaintiff thought that he might have taken "bad acid".
As there was insufficient room in the lift for Senior Constable Gaskell and Constable Smith, they entered the fire stairs and went up to the top level. One of the police officers who had come up in the lift, let them through the fire stair exit and out into the unit.
When Probationary Constable Herold entered the unit, he heard Constable O'Brien say, "Go in hard". Probationary Constable Herold disregarded this comment as he considered an assessment of risk needed to be undertaken before any such decision could be made.
When Constable Goulding entered the unit, there were about twenty people present at a "house party". Most of them were in the "undercover entertainment area". Police had to "make [their] way through because they weren't too helpful". The guests were huddled in a group trying to keep away from the plaintiff. Some of the guests were swearing at the police officers as they passed through the unit to the balcony, where the plaintiff was standing by himself. Constable Goulding asked the guests for the plaintiff's name and was told it was "Andrew". He passed this information on to Constable O'Brien.
The plaintiff, who was in the corner of the balcony behind the picnic table, was yelling, screaming and swearing. Constable O'Brien went out onto the balcony and stood next to the Young Street side of the balcony, facing the plaintiff in the direction of Military Road. Constable Tran was near him on that side, but was further away from the plaintiff. Constable O'Brien started to talk to him in a loud, calm voice and said (as recalled by Probationary Constable Herold), "Hi, what's your name?" and "Are you okay tonight?"
It was Constable Goulding's impression that Constable O'Brien was trying to calm the plaintiff down so that he understood that he was not in trouble and that the police were there to help him out. Constable Goulding saw that Constable O'Brien was moving slowly towards the table which separated him from the plaintiff.
Constable Goulding decided to position himself near the Military Road side of the balcony because he was worried that the plaintiff might try to jump off that side. He asked Probationary Constable Herold to go with him because he was wearing a taser. Constables Dennis and Chen also came with Constable Goulding and positioned themselves near the Military Road edge of the balcony, keeping their distance from the plaintiff.
At about this time, Senior Constable Gaskell and Constable Smith came into the unit and saw the plaintiff out on the balcony. At that time, the plaintiff was facing north (in the direction of Constable O'Brien), his back was towards Military Road (closer to where Constable Goulding, Probationary Constable Herold and other police officers were), his right side was close to Young Street and his left side was "facing" Senior Constable Gaskell and Constable Smith.
Probationary Constable Herold understood that his superior officers were implementing a "contain and negotiate" strategy. At about this time, Constable Dennis said to Probationary Constable Herold words to the following effect: "If he [the plaintiff] goes to do anything, you need to use your taser on him."
Constable Dennis instructed Probationary Constable Herold to unholster the taser. When Probationary Constable Herold did so, he held the taser near his leg in an attempt to hide it from the plaintiff. He did not turn it on. He had been instructed that the standard procedure was that a taser ought be activated as soon as it was unholstered but considered the departure from this procedure to be warranted since he did not want to inflame the plaintiff and wanted, by unholstering it, to reduce his reaction time if he needed to use it. He thought that the taser might be able to prevent the plaintiff from jumping over the balcony. His understanding, based on his recent training, was that a taser causes NMI which results in the target falling to the ground.
Senior Constable Gaskell saw that the plaintiff was looking in a northerly direction along Young Street in the direction of Constables O'Brien and Tran. He did not turn left and look down the Military Road side of the balcony towards the location where the other police officers, including Senior Constable Gaskell were standing.
Senior Constable Gaskell could hear Constable O'Brien but could not see him. He could also hear the plaintiff who was "yelling and flailing his arms". His words did not make sense to Senior Constable Gaskell and "did not seem to be connected or responsive" to what Constable O'Brien was saying to him.
Senior Constable Gaskell saw a man come out of the unit on his left onto the Military Road side of the balcony. The man yelled out to the plaintiff, "C'mon, man, just let them take you home!" Immediately, the plaintiff became more aggressive in response. I note that neither Constable Goulding nor Probationary Constable Herold mentioned this intervention in their evidence. I regard this circumstance as reflecting the fact that they were both engrossed in watching the plaintiff and working out whether it was necessary to use the taser. By contrast, Senior Constable Gaskell was further back, closer to the door to the unit and in a better position to survey the whole of the scene from his vantage point at the rear.
The plaintiff, who was "very angry" and "very abrupt" and "waving his arms", picked up the picnic table and either slammed it down or let it bounce back down, which caused a loud noise. Probationary Constable Herold recalled the plaintiff clenching his fists and pacing around. The plaintiff took hold of at least one of the planks in the table top and dislodged it from the table. Constable Goulding, who was then about 4 or 5m away from the plaintiff, was impressed by the plaintiff's strength. He could not determine whether the plaintiff was usually that strong or whether his demonstrated strength was a consequence of the substances he had ingested. It was Constable Goulding's impression that the plaintiff was trying to flick the planks in Constable O'Brien's direction.
At about that time, the plaintiff turned 90 degrees to his right to face Young Street, which meant that he had his back to Probationary Constable Herold. Probationary Constable Herold was concerned that this movement indicated that the plaintiff was preparing to jump over the balcony railing. Constable Goulding shared Probationary Constable Herold's concern. Although Constable Goulding did not recall hearing the plaintiff say that he was going to jump he recalled that this information had been communicated by the "party guests" to the police when they arrived at Unit 1.
Constable Goulding heard the plaintiff say "fuck this" and saw him put one foot on the seat of the table on the side closest to Young Street. At this time Constable O'Brien said words to the effect, "Go in, get him, get him".
Probationary Constable Herold had, in any event, decided to activate the taser because he was worried that the plaintiff was about to jump. He moved the safety switch from the "down" position (where it is in safe mode) to the "up" position (the armed position), pointed the red dot just above the plaintiff's waistline at his back and squeezed the trigger to discharge the probes in an attempt to stop the plaintiff from leaping over the balcony by immobilising him. It was the first time Probationary Constable Herold had ever used a taser in the field although he had been trained as to its use and was certified to use it. When he pulled the trigger, nothing happened. He knew immediately that the taser had not operated properly.
When Constable Goulding realised that the taser had not operated correctly, he charged at the plaintiff to try to stop him from going over the balcony railing by grabbing him but the plaintiff "dove" over the balcony railing. While the plaintiff was diving the taser actually went off "properly". I accept the truth of what Constable Goulding said in a recorded interview the following day: "he's just rolled over basically head first over the balcony" and "he's just sort of leapt head first as if he's diving into a swimming pool basically without his arms". At that time, he was aware that the prongs of the taser flew straight past him. He considered that the prong of the taser actually hit the plaintiff as he was already going over the balcony railing. I accept his evidence: "He was already falling when the taser actually fired."
Probationary Constable Herold also saw the plaintiff go over the railing. He did not see, or notice, the position of the plaintiff's feet before he went over. He described the plaintiff's movements as a "swan dive" and said "he jumped up, using the power in his legs and went over the railing." In his directed interview (see below) he could not recall the position of the plaintiff's hands. When the plaintiff did not show any sign of NMI, Probationary Constable Herold realised that at least one of the prongs had failed to hit the plaintiff's body to complete the circuit.
Senior Constable Gaskell described the plaintiff as having put his hands in a triangle above his head and interlocked his fingers as if he was going to dive into a pool. The plaintiff jumped but, notwithstanding that he appeared to put a lot of effort into the jump, was not able to jump very high. However, it was enough for his gut to clear the railing. Because of the momentum and the change to his centre of gravity, he fell forward and landed on the 45 degree incline of the tiled roof next to the balcony and then slid over the edge. At that point, Senior Constable Gaskell ran towards the plaintiff, whose legs were up in the air and whose body was sliding towards the edge of the roof, to try and stop his fall by grabbing his legs. He was unable to do so. Senior Constable Gaskell watched him fall out of sight. When he reached the edge of the balcony, he could see the plaintiff lying on the balcony below.
Mr Hutchings, who appeared with Mr Coffey for the defendant, accepted that it was not possible to determine from the evidence where the plaintiff's centre of gravity was when the taser prong hit him in the right upper leg.
Subject to one matter, I prefer Senior Constable Gaskell's evidence as to the plaintiff's stance immediately before his descent to the descriptions given by other police officers who were more closely involved in trying to deal with the situation. I note that Senior Constable Gaskell, who was further back from Probationary Constable Herold, did not even appreciate at the time that a taser had been discharged as he neither saw nor heard it. I accept Constable Goulding's evidence that the plaintiff put one foot on the seat of the table before he hoisted himself over the balcony railing. Thus, the "jump" was assisted by this manoeuvre. Senior Constable Gaskell could not see the plaintiff's feet at this time and, accordingly, did not see that he had done this.
I regard the small inconsistencies between the officers' versions (including as to whether the plaintiff had his arms by his side or whether they were stretched out in front of him) as explicable by their different vantage points as well as the well-known difficulty of eye-witnesses recalling detail, particularly in the course of a highly-charged traumatic event which lasts for a very short time. I do not consider that these inconsistencies substantially affect the reliability of the evidence set out above. Each of the officers was required to attend mandatory counselling after the event. Senior Constable Gaskell confirmed that it was the first and only time he had ever seen anyone jump off a building.
After the plaintiff had gone over the balcony railing, Probationary Constable Herold pointed his taser towards where the plaintiff was lying on the balcony below. The taser footage depicts this scene.

[18]

The plaintiff's submissions about what occurred

Mr Maconachie QC, who appeared with Mr Tierney for the plaintiff, submitted that, when police arrived: 1. the plaintiff was standing alone on the balcony in no apparent distress and exhibiting no signs of agitation or disturbance; 2. the police decided, early on, that a taser would be the most effective tactical option to contain the situation; 3. Probationary Constable Herold, a junior officer with limited experience, was permitted to use a taser to effect that tactical option and to do so on his own initiative; 4. the plaintiff was in an elevated place from which he might, as occurred, fall from a height; and 5. police protocol prohibited the use of a taser in such situations.
Based on the factual findings above and the reasons given below, I am not satisfied of any of the matters in (1)-(5) above.
As to (1), although the plaintiff was standing alone on the balcony, he was very distressed when police arrived. He was pacing around, waving his hands and swearing. He was extremely agitated and his fists were clenched. He was alone on the balcony because the guests at the party were fearful of him.
As to (2), the police had not decided on any particular tactical response until the taser was actually used, although it was contemplated from the time police came out onto the balcony that it ought be available as an alternative, which was why Probationary Constable Herold, who had a taser, was asked to cover the Military Road side of the balcony.
As to (3), although Probationary Constable Herold had only been a police officer for six months, his training was recent. Other more senior officers, such as Constable Goulding, had not used a taser before either. Constable Goulding's unchallenged evidence was that Probationary Constable Herold was qualified and certified to wear and use a taser.
As to (4), although the balcony itself was elevated, the railing was above the plaintiff's waist height. As long as the plaintiff's centre of gravity was on the balcony side of the railing, he would fall vertically onto the floor of the balcony unless the force of his momentum over the balcony exceeded the force of gravity. I do not regard the document entitled "Use of Conducted Electrical Weapons (Taser)", issued by the police's Major Events & Incidents Group (the Taser Protocol), as being intended to prohibit the use of a taser in a case such as the present. The Taser Protocol is addressed later in these reasons.
For these reasons, I am not satisfied that the prohibition in (5) applied. Further, the Taser Protocol allowed for a discretion to be exercised. Having regard to the limited options available and the risk of death or serious harm to the plaintiff if he went over the railing, the taser was an available and appropriate option in all the circumstances.

[19]

After the plaintiff's descent

At 12.06am, the ambulance log recorded a message from HS 35: "M JUMPED OFF ROOF".
At about 12.08am, the police log recorded HS 51 saying: "… the male[']s just jumped off the roof at this address in Neutral Bay … he's only gone about two floors down and landed on another balcony however he appears to be out cold."
Constable Goulding estimated that police were on the balcony for fewer than two minutes before the plaintiff jumped. His estimate is consistent with the evidence referred to above about the time outside on the footpath, going up in the lift to Unit 1 and passing through the unit before coming out onto the balcony.
There is a significant amount of evidence about the attempts made by police and ambulance officers to gain access to the plaintiff after he went over the balcony railing of Unit 1. However, as no complaint is made about this aspect of the conduct of the police it is not necessary to detail it. It is sufficient for present purposes to note that Constable Dennis jumped down onto the lower level where the plaintiff had landed to be with him while they waited for medical assistance. Probationary Constable Herold saw Constable Dennis remove one barb from the back of the plaintiff's upper leg or buttocks. Probationary Constable Herold found the second barb on the ground of the balcony as the wire was still attached.
It was submitted on behalf of the plaintiff that the audio recording associated with the taser recorded, at 3.35 on the time setting, that Constable Dennis said, when he was with the plaintiff on the lower level, "Shit, Simon, there are two fucking sticks in here", or words to that effect. Probationary Constable Herold did not recall hearing Constable Dennis say that. Constable Goulding accepted that he knew that, some time ago, the word "sticks" was used by some to refer to the probes of a taser, but said that it was some time since he had heard such terminology. Probationary Constable Herold had not heard "sticks" ever being used to describe anything associated with a taser.
I have watched and listened to the taser recording a number of times. Constable Dennis's voice is not sufficiently distinct to make out whether he said the words contended for by the plaintiff, although it is possible that he said those words. Even if he did, they are not inconsistent with the defendant's evidence, which is that the barb of one taser prong went into the plaintiff's right upper leg and that the other one, which was aimed at his belt line, did not attach to the plaintiff so as to cause NMI. There is no notation on the hospital notes which supports there being a second barb in the plaintiff's back or waistline. Further, the hospital notes do not even record the mark left by the barb which Constable Dennis removed from the plaintiff's upper right leg. No note of any such mark was made by the paramedics, notwithstanding that it was their usual practice to make a note of any such mark which they observed. If Constable Dennis had located "two sticks" (an out-dated reference to taser prongs) behind the plaintiff's back when he rolled him over, this would also be inconsistent with the plaintiff's submission (see below) that the second barb had gone into the plaintiff's left sternum.
When Probationary Constable Herold got down to the lower level where the plaintiff was, he saw one probe just under the plaintiff's buttocks on the right side. He did not see where the other probe went.
When Constable Goulding went back through the unit after going downstairs after the incident, he was "a bit shocked" that of the twenty people who had been there when he arrived, there were only four left.
I accept the plaintiff's evidence that he did not discuss the events of 20 February 2016 with anyone because he found it too upsetting. He has returned to Unit 1 only once since that date. He attended with a barrister and a "fall guy" (whom I take to mean an expert in falls) to show them where he was standing on the balcony when he first came to after inhaling drugs. He confirmed that this was the only position in which he actually recalled being. However, as soon as he demonstrated his position, he went to the other end of the balcony because it made him upset to be there. The plaintiff could not recall the date, or approximate time, at which this visit had occurred.

[20]

The involvement of ambulance officers and paramedics

The Triple-0 call referred to above was received at the ambulance control centre at 11.53pm on 20 February 2016.
Ambulance 1950 responded at 12.14am on 21 February 2016. By this time the plaintiff had already gone over the railing. Ambulance 1950 was staffed by two paramedics employed by NSW Ambulance, Scott Miles and Craig Perkins. For that shift, Mr Miles was designated as the treating paramedic and Mr Perkins as the driver. Ambulance 1950 arrived at the Unit block at about 12.25am on 21 February 2016. Another ambulance, number 1527, arrived, with two paramedics, Gareth Copland and Shana Escott.
The NSW Ambulance record noted that the plaintiff was "extricated" at 1.27am.
Mr Miles has no recollection of seeing any taser barbs or any evidence of any taser probe penetration on the plaintiff's body. Nor was any record made in the NSW Ambulance notes of any such marks. I accept that it was Mr Miles's usual practice to record in his notes any taser probes located on the patient's body and, if they had been removed, any signs of a puncture site. In addition to recording any such information in the notes, Mr Miles would have provided "this important information … during the handover at the hospital." Mr Copland and Mr Perkins, neither of whom was cross-examined, gave evidence to similar effect.
At 12.45am, the CAD system recorded that Inspector Thorpe (HS 10) asked whether the plaintiff had been tasered. HS 37 responded that a taser was deployed but that it was ineffective.
At 1.33am, the plaintiff was transported by ambulance to Royal North Shore Hospital. Because of the plaintiff's need for immediate care, both Mr Miles and Mr Perkins remained in the back of the ambulance on the way to the hospital. Ambulance 1950 was driven by Ms Escott, one of the paramedics who had arrived in ambulance 1527. None of the paramedics was at the scene when the plaintiff went over the balcony railing.
Ambulance 1950, which contained the plaintiff, arrived at Royal North Shore Hospital at 1.47am on 21 February 2016.
The Ambulance Electronic Medical Record recorded: "….. [Police] TASERED HIM BEFORE HE JUMPED LANDING ON HIS BOTTOM ON ROOF JUST OVER RAILING BEFORE SLIDING AND FALLING APPROX 4 METRES ONTO BALCONY BELOW."
Mr Miles confirmed that he would have obtained the history from someone at the scene but he had no recollection of the person from whom he had obtained the history or whether the person was a police officer.
For the reasons given below and in light of the findings made above, I regard the history that the plaintiff was "tasered" before he fell as being incorrect if it is intended to indicate that the two prongs of a taser fastened themselves to the plaintiff to complete a connection such that an electrical current passed through his body, causing him to sustain NMI. Although this was what Probationary Constable Herold intended to do, he did not achieve this objective since only one prong went into the plaintiff's body. Further, as witnesses described, there was no sign of any NMI. Therefore, the circumstantial evidence is against the hypothesis that two probes were engaged.

[21]

The clinical notes of Royal North Shore Hospital which recorded a history of the incident

The clinical notes of the Emergency Department of Royal North Shore Hospital recorded, in "Assessment Documents" prepared at 3.07am on 21 February 2016 by Carrie Stannie (the Stannie note), under the heading, "History from paramedics", that the police had "tasered" the plaintiff. The history also noted: "[The plaintiff] [a]llegedly stated he wanted to jump off balcony, police present and tasered patient. Patient tasered to left side of chest according to the parame[d]ics."
I accept that none of the paramedics had any direct knowledge of whether the plaintiff had been tasered or where he had been tasered. If they had been told anything about the plaintiff having been tasered, it could only, reliably, have come from those police officers who were aware of what had occurred. As appears from the narrative set out above, only one of the prongs made contact with the plaintiff. That he displayed no reaction to the discharge of the taser is, as referred to above, also powerful circumstantial evidence that no electric charge passed through his body (as the taser requires a circuit to be completed by the application of two barbs).
For this reason, I find that the plaintiff was not "tasered" since only one of the barbs attached to his right leg just below his buttock. I find that neither of the barbs struck his left chest. At the time the taser was discharged, the plaintiff had his back to Probationary Constable Herold, who aimed the taser at his lower back.
It is well known that hospital records and clinical notes taken by medical practitioners or medical staff can constitute reliable evidence because those who make them are doing so to create an accurate record of that which is included. An appreciation of the value of such sources led to the statutory exception to the hearsay rule for business records: Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 at 548-549 (Hope JA, Reynolds and Hutley JJA agreeing). However, their reliability ought not be overstated, particularly when they purport to record a history without a precise source or where, as here, they nominate a source (the paramedics) who had no personal knowledge of the relevant fact. Thus, in Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36, the High Court (French CJ, Heydon and Bell JJ) held, at [17], that the record made by the ambulance officers that the asserted fact, that the respondent had fallen 1.5m onto concrete, was not admissible because, even if the information had come from bystanders, it was common ground that the bystanders had come onto the scene after the respondent had fallen. In the present case, the source of the information to paramedics was unknown but I infer that it could not have been police officers, unless the paramedics had misunderstood what they had been told by police.
Further, as Basten JA (Macfarlan JA agreeing) observed in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8], the medical histories are recorded for a purpose which does not necessarily correspond with a forensic purpose. When the staff of the Royal North Shore Hospital were recording histories concerning the plaintiff, they were concerned about his catastrophic spinal and head injuries. They knew that he had sustained these injuries as a result of falling from a height. What had precipitated his descent was immaterial to his treatment, except insofar as it might indicate suicidal ideation. Thus, whether the plaintiff was effectively tasered or ineffectively tasered and, if so, where on his body the taser barb had pierced were immaterial to his treatment. On 21 February 2016 at about 7.30pm, Dr Salt had told Officer Townsend, "these do not represent major injuries at this time" (see the extract of the clinical note later in these reasons). In other words, the taser piercing or piercings were insignificant to the Royal North Shore Hospital's purpose in recording the history.
I allowed the hospital records to be tendered as evidence of the terms of the record (that is, for the hearsay purpose) on the basis that, although the paramedics did not have personal knowledge of the asserted fact (that the plaintiff had been effectively tasered and that one of the barbs had gone into his left chest), the information may have been provided by people who, having been present at the scene, might reasonably be supposed to have had personal knowledge of the asserted fact: s 69(2)(b) of the Evidence Act 1995 (NSW). However, although the notes were admissible on that basis, they are of significantly lesser weight than the actual evidence of police officers. Although the evidence was given over six years after the event, the police officers had each made contemporaneous notes in their notebooks and each was interviewed for several hours within a day of the incident. Their evidence positively establishes that the plaintiff was not effectively tasered and that neither barb was aimed at, or hit, the plaintiff in his chest. As referred to above, the plaintiff was facing away from Probationary Constable Herold (with his back in his direction) when the taser was discharged.
For these reasons, I reject the history recorded in the hospital records to the effect set out above. This incorrect history is repeated in other hospital notes. Its repetition does not improve its reliability.

[23]

Police statements and directed interviews

At about 1.30am, Inspector Craig Thorpe spoke to police officers who had been present at the incident and directed them to return to the police station and prepare notes in their notebooks. He also directed the officers not to speak to each other about what had happened until each had made a record of the event in their notebooks.
The police conducted a Critical Incident Investigation of the incident. As part of the investigation, the police officers participated in directed interviews which were recorded. The transcripts of the directed interviews of Constable Goulding and Probationary Constable Herold were in evidence before me.
As part of the investigation, Officer Townsend from Maroubra Police Station attended the intensive care unit (ICU) at Royal North Shore Hospital at 7.30pm on 21 February 2016 to enquire after the plaintiff. He asked about "taser injuries to the plaintiff's leg or back". The response of "G. Salt" was recorded in the clinical notes as follows: "- I stated that as these do not represent major injuries, at this time, I was obliged [to] maintain confidentiality regarding this. - I could neither confirm or deny presence of any taser injuries. - I recommended enquiries through media or legal unit."
Mr Maconachie submitted that Officer Townsend's question of Dr Salt amounted to an admission by the defendant that the plaintiff had been tasered in one of his legs or his back. I do not accept this submission. Officer Townsend was involved in the police investigation into the incident, which had been instigated shortly after the incident. When Officer Townsend visited Royal North Shore Hospital, no more than 20 hours had elapsed since the incident. The directed interviews, which were conducted with Constable Goulding and Probationary Constable Herold, had not yet commenced. The interview with Probationary Constable Herold, which was conducted by Detective Sergeants Downie and Fulham, in the presence of a delegate from the NSW Police Association, commenced at about 8.28pm on 21 February 2016 and concluded at about 10.05pm. The interview with Constable Goulding, which was undertaken by the same officers and in the presence of the same delegate, commenced at about 10.44pm on 21 February 2016 and concluded at 1.06am on 22 February 2016.
At that time, Officer Townsend may have been aware that Probationary Officer Herold had tried to taser the plaintiff and that one prong had been removed from his upper right leg by Constable Dennis when he was on the lower balcony but he is unlikely to have known further details, which only emerged in the course of the lengthy directed interviews. Further, I would infer that the investigation required officers to seek information from various possible sources, of which the Royal North Shore Hospital was one.

[25]

Computerised Operational Policing System (COPS) reports of the incident

The COPS report for the incident recorded, beside the description "Narrative Details" created at 3.13am on 21 February 2016, that a taser had been deployed by Probationary Constable Herold, who was under the HS Local Area Command (LAC). The following narrative appeared under the heading "Brief Outline of Incident": "About 23.57 on Saturday 20th February 2016, Police responded to a job where a male was attempting to jump of [sic] a balcony. Police attended, level 3, unit 1/154- 158 Military Road, Neutral Bay. Police have entered the unit and noticed a male on the balcony who was acting very aggressively. Four Police Officers have approached the male and 2 Officers have attempted to talk to the POI. Police were told that the POI had been drinking alcohol and taken some sort of prohibited drug (possibly MDMA). As Police approached the POI he has become very agitated and very aggressive towards Police and was yelling and screaming. The POI had walked closer to the balcony railing, where a wooden outside table was. The POI has lifted the table up and thrown it up in the air. P/CST HEROLD has drawn and deployed his taser. One probe has hit the POI in the leg, the second probe has missed. The taser has not been effective. The POI has then lifted himself up and jumped over the balcony, head first, landing on Level 1. CST DENNIS has then followed and jumped over the balcony from level 3 to level 1, causing injuries to his legs and hands. CST DENNIS has checked for sign of life, put the POI into the recovery position and the POI was in and out of consciousness. POI has been transported to Royal North Shore Hospital, where he is currently having scanned and x-rays."
A further entry was created at 4.57am on 21 February 2016. It listed as witnesses Sara Graham, Matthew Miller, Fiona Herriot (who was described as "informant"), Mr Manion and Thomas Kelly. Under the heading, "Narrative Details", this entry in the COPS report said: "About 23.57 on Saturday 20th February 2016, Police responded at 154 Military Rd, Cremorne to a job where a male was attempting to jump off a balcony. All Harbourside vehicles have responded code red and HS 37 [sic, HS 35] (CST O'BRIEN/P/CST CHEN), HS 36 (CST TRAN/CST GOULDING) HS 37 (CST DENNIS/P/CST HEROLD) have called off at 00.01 on Sunday 21st February 2016. HS 37, HS 36 and HS 35 have entered the building at 154-158 Military Rd, Neutral Bay met with 2 females who have give[n] Police access to the lift. These ladies have said that the POI was on the balcony and going nuts and threatening to jump. Police were also notified that the POI had been drinking alcohol and taken some sort of prohibited drug (possibly MDMA) Police entered the lift and gone to level 3. Police have attended unit 1. The building located on the corner of Military Road and Young St, with access to the building on Military Rd. There is both residential and commercial businesses within the building with commercial businesses located on the ground floor and about 8 levels of residential apartments. Unit 1 has a large wrap around balcony that extends from Military Road around to Young St. Police attended, level 3, unit 1/ 154- 158 Military Road, Neutral Bay. Police have entered the unit and went through the unit out to the balcony. There was a small gathering going on in the unit, with about 20 patrons within the unit. Once Police were on the balcony, they noticed the POI was in the corner of the balcony against the railing. Police also noticed there was a table was in front of the POI and between the POI and Police. O'BRIEN and TRAN have stood on one side (Northern side) of the balcony, with OBRIEN in front of TRAN. HEROLD, GOULDING, DENNIS and CHEN were standing on the other side (Eastern side) of the balcony. O'BRIEN and GOULDING have attempted to talk to the POI, with O'BRIEN being the primary talker and GOULDING was secondary. The POI said "Fuck off, I'm going to jump" The POI appeared very agitated, aggressive (yelling and screaming) towards Police and incoherent. The POI has then lifted the table that was in front of him into the air and thrown it towards Police. The POI has then stepped closer to the balcony. HEROLD has drawn and covered and attempted to deploy his Taser X00673320, where 1 probe has connected with the POI's leg and the second probe has missed. The Taser had not been effective. The POI has then muttered something and turned toward Young St, with his back to Police, lifted himself up and jumped over the balcony, head first, landing on Level 1. CST DENNIS had then followed and jumped over the balcony from level 3 to level 1, causing injuries to his legs and hands."
A further COPS entry was created at 7.20am on 21 February 2016. This entry is said to be an "AMENDED NARRATIVE AS PER REQUEST BY SERGEANT RUSSELL." The brief outline of incident recorded under this entry was: "About 23.57 on · Saturday 20th February 2016, Police responded to a job where a male was attempting to jump of [sic] a balcony. Police attended, level 3, unit 1/ 154- 158 Military Road, Neutral Bay. Police have entered the unit and noticed a male on the balcony who was acting very aggressively. Four Police Officers have approached the male and 2 Officers have attempted to talk to the POI. Police were told that the POI had been drinking alcohol and taken some sort of prohibited drug (possibly MDMA). As Police approached the POI he has become very agitated and very aggressive towards Police and was yelling and screaming. ·The POI had walked closer to the balcony railing, where a wooden outside table was.· The POI has lifted the table up and thrown it up in the air. P/CST HEROLD has drawn and deployed his taser. One probe has hit the POI in the rear of the leg, the second probe has missed. The taser has not been effective. The POI has then lifted himself up and jumped over the balcony, head first, landing on Level 1. CST DENNIS has then followed and jumped over the balcony from level 3 to level 1, causing injuries to his legs and hands."
At some stage after the incident, the plaintiff was either told by someone whom he could not identify, or read in a document that formed part of his medical records, that he had been "tasered off a balcony … onto the roof, onto the balcony below". At this point he engaged the services of a solicitor, who continues to act on his behalf.

[26]

The allegation that the plaintiff was tasered and that one prong had gone into his left chest

Mr Maconachie submitted that the evidence established that the plaintiff had been "tasered" and that one prong of the taser had hit the plaintiff in the left side of his chest. He relied on the following evidence in support of this submission: 1. the note made by the paramedics in the ambulance record that the patient had been tasered before he jumped; 2. the Stannie note (extracted above), which referred to history provided by paramedics; 3. the taser recording which it was said included a statement by Constable Dennis about there being "two fucking sticks in here"; 4. the enquiries made of Dr Salt by Officer Townsend at 7.30pm on 21 February 2016 in which he asked "about taser injuries to [the plaintiff's] leg + back"; and 5. the unchallenged evidence of Maryanne Baker-Floyd, the plaintiff's mother, as follows: "[The plaintiff] had a sheet which was pulled up to about the base of his sternum. I saw two round red marks about 5 to 10mm in diameter. The marks were about 20 to 25mm apart and around or slightly to the left of the midline of [the plaintiff's sternum].
I have already addressed (1)-(4) above. As to (5), I regard the plaintiff's mother's evidence as inconsistent with a taser barb having pierced the left side of the plaintiff's chest. Each prong of the taser had a single barb (as is evident from the User Manual tendered by the plaintiff and the Taser Protocol tendered by the defendant). Had a barb attached to the plaintiff's chest, there would only have been one mark on the plaintiff's chest, not two. The plaintiff did not contest Probationary Constable Herold's evidence that he saw Constable Dennis remove a barb from the plaintiff's right upper leg. Thus, the presence of two identical or similar marks on the plaintiff's left chest is inconsistent with the proposition that a taser barb went into the plaintiff's chest.
Furthermore, the objective probabilities are entirely against one of the taser barbs going into the plaintiff's left chest. Probationary Constable Herold's evidence was that he pulled the trigger of the taser when the plaintiff's back was facing him, after the plaintiff had turned from having his side facing Probationary Constable Herold. At no time was the plaintiff front on to Probationary Constable Herold such as to make it possible for him to fire a taser in the direction of the plaintiff's left chest.

[27]

The application of Jones v Dunkel

Mr Maconachie submitted that each of the officers who were present (Probationary Officers Chen and Tran, Constables Dennis, O'Brien and Smith) or who became involved in the investigation (Detective Sergeants Downie and Fulham and Inspector Thorpe) or whose name appeared as having amended the COPS report (Sergeant Russell) was a witness whom the defendant could be expected to have called. He submitted that, as the defendant had not called them, I was not permitted to draw any inference in favour of the defendant and relied on Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8. Mr Maconachie repeatedly referred to Constables Dennis and O'Brien as the most senior officers although he ultimately accepted that he regarded them as the most senior because of the key roles they played.
Mr Hutchings submitted that no such inference was available in circumstances where the defendant had called three key eye witnesses to what had occurred on the balcony: Senior Constable Gaskell (who had a good view of what was happening and was not directly involved), Constable Goulding (who was, as a "Constable 5", the most senior officer present) and Probationary Constable Herold (who had fired the taser).
On the basis of the summary of authorities and texts set out by Campbell J (Beazley JA and Pearlman AJA agreeing) in Manly Council v Byrne [2004] NSWCA 123 at [63]-[65], I accept the defendant's submission. The defendant was not obliged to call every police officer who had any connection with the incident. Where an uncalled witness would have been merely cumulative or corroborative of witnesses already called, no Jones v Dunkel inference arises. Much was made of Constable Dennis's absence, since he had jumped from the balcony to gain access to the plaintiff and roll him over. However, whatever evidence Constable Dennis could give could not establish that the plaintiff had suffered NMI since there was no indication of it, given the way the plaintiff moved after being struck by a single probe of the taser. Further, while it was Constable O'Brien who spoke with the plaintiff, he did so in the presence of all the other police officers who were there on the balcony, three of whom were called to give evidence.
I do not accept that Detective Sergeants Downie or Fulham were material witnesses. They asked the questions in the directed interviews, transcripts of which were created. Sergeant Downie authorised the destruction of the taser, the spent taser cartridge, the wire and the two prongs. However, the evidence discloses that he was asked on 23 August 2017 whether these items could be destroyed. He responded by saying that the taser itself was to be returned to North Sydney Police Station but that the other items were to be destroyed. The taser was also destroyed. Sergeant Downie's evidence could not be expected to bear on the issues in the proceedings in circumstances where he authorised the destruction of these items after the police investigation had been completed and before the proceedings had been commenced.
Inspector Thorpe, relevantly, told the officers not to speak to each other and to make notes in their notebooks as to their recollections. They each gave evidence to that effect. Although he downloaded the taser footage, I could not infer from his not having been called as a witness that he did so in such a way as to damage or corrupt the footage.
Sergeant Russell requested that the narrative in the COPS report be amended. The only relevant amendments from previous versions, which I have been able to discern (and none was identified by the plaintiff), apart from clerical matters, are as follows: 1. under the heading "Type of Deployment", in the amended version "Draw Cover" has been deleted and the alternative, "Probes Discharged" remains, whereas in earlier versions both appear as neither has been deleted; and 2. in earlier versions, the narrative recorded that one probe had hit the plaintiff in the "leg", whereas the later version recorded that it had hit the plaintiff in the "rear of the leg".
There is no suggestion that "Draw Cover" is relevant in these proceedings. The evidence of the police officers established that a prong went into the rear of the plaintiff's right upper leg. Accordingly, I do not regard a relevant inference being available against the defendant on the basis contended for by Mr Maconachie.

[28]

Whether the Civil Liability Act 2002 (NSW) applies

Section 3B of the Civil Liability Act relevantly provides: "3B Civil liability excluded from Act (1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows - (a) civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury … - the whole Act except - … (ii) Part 7 (Self-defence and recovery by criminals) in respect of civil liability in respect of an intentional act that is done with intent to cause injury or death … …"
Mr Maconachie submitted that the present case fell within s 3B(1)(a) and that, therefore, the only provisions in the Civil Liability Act that applied in the present case were those in Part 7. He submitted that Probationary Constable Herold deliberately fired the taser with the intention of causing NMI to the plaintiff and that this was sufficient to amount to an intentional act done with intent to cause injury within the meaning of s 3B(1)(a). He submitted that it was irrelevant that Probationary Constable Herold's overall motive was to save the plaintiff's life by stopping him going over the balcony railing, when his intention was to cause him injury.
Mr Hutchings submitted that Probationary Constable Herold's intention was to safeguard the plaintiff's life rather than to cause him injury and that therefore s 3B(1)(a) did not apply to exclude the Civil Liability Act, even though he intended, when firing the taser to cause the plaintiff to suffer NMI.
In Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132, Leeming JA (Beazley P and Ward JA agreeing) at [34]-[35] and [117] emphasised the importance, when determining whether the exception in s 3B(1)(a) applied, of addressing the character of the underlying conduct alleged, rather than the character of the cause of action pleaded. This is significant in the present case because if too narrow a view is taken of the conduct (if it is limited to the taser strike), the conclusion could be reached that there was an intention to injure, when Probationary Constable Herold's actual intention was quite the opposite. In addition, the circumstance that the plaintiff relies on battery cannot determine whether the exception applies.
In the present case, it was accepted that Probationary Constable Herold was in a difficult situation and that he was well-motivated when he fired the taser at the plaintiff. It was also accepted that he intended to cause NMI (although he was unsuccessful in his endeavour due to a malfunction in the taser) but he did not intend the plaintiff to suffer catastrophic injuries as a consequence of going over the railing. Indeed, his intention was to prevent that very occurrence, which was why he fired the taser when he did.
It is significant that the plaintiff claims damages for injuries he sustained as a result of impact with the lower balcony, as opposed to injuries he sustained by being struck by a prong of a taser. The importance of this matter was considered in Dickson v Northern Lakes Rugby League Sport and Recreation Club Inc (2020) 103 NSWLR 658; [2020] NSWCA 294 (Dickson).
In Dickson, a rugby league player suffered personal injury in a match as a result of a "spear tackle", which lifted him off the ground and drove him into the ground, following which the tackler landed on the appellant's head. In the statement of claim in Dickson, the plaintiff alleged: "although he [the player doing the tackling] did not intend to cause the serious injury which in fact occurred, he did intend to cause the plaintiff some minor and temporary injury from contact with the ground, this being an inherent and inevitable feature of vigorous rugby league tackles."
Basten JA held at [15]: "It is not possible to read s 3B(1)(a) as engaged where the intent is to cause an injury which is not the subject of the claim. The injury which was the subject of the present claim resulted from the fact that the tackler fell onto the appellant's head. There was no evidence that he subjectively held an intention to do that, or to cause the injuries which resulted from that act."
In these circumstances, and on the basis of Basten JA's reasoning in Dickson, I am not persuaded that s 3B(1)(a) applies. Accordingly, the provisions of the Civil Liability Act apply to the plaintiff's claims in battery and in negligence.

[29]

Alleged assault and battery

Mr Maconachie submitted that: 1. when the police arrived, the plaintiff was outside on the balcony by himself, was not restrained in any way and demonstrated no signs of disturbance or aggression; 2. six police advanced towards the plaintiff from at least two directions, causing the plaintiff to become agitated; and 3. the police tasered him and at least one barb broke his skin at about the time he jumped over the balcony railing and fell several metres.
For the reasons given above, I do not accept that (1) or (2) is accurate. The plaintiff was highly agitated at all times when the police were there. He did not appreciate that the police were even there, even if, which is doubtful, he registered that there were other people in the vicinity on the balcony. As to (3), for the reasons given above, the police did attempt to taser the plaintiff but only one prong made contact with his skin. At about the time he was tasered the plaintiff was already in the course of trying to go over the balcony railing.
Mr Maconachie submitted that the actions of police amounted to assault and battery and caused the plaintiff to fall by reason of the following: 1. it ought to be inferred that the plaintiff did not want to harm himself since if the plaintiff had wanted to do so he would have jumped over the Military Road side of the balcony (this presenting a significantly greater drop to the ground rather than to a lower balcony, as was the case on the Young Street side of the balcony) when he had the opportunity to do so when he was alone on the balcony before the police arrived; 2. when the plaintiff was struck by the taser, he suffered NMI which caused him to fall over the railing; 3. in the alternative, the plaintiff reacted to being simultaneously rushed by police and hit by a taser by fleeing from the threat and passing over the railing; or 4. the plaintiff reacted to being rushed, tasered and suffering the loud noise made by the taser, which made him go over the railing.
As to (1), I do not regard this inference as being open, much less as being one which ought to be drawn. The evidence of Dr Alex Apler and Dr Antonella Ventura, the expert psychiatrists, was that the plaintiff was exhibiting conduct which was typically associated with a drug-induced psychosis. Dr Ventura did not regard herself as having sufficient information to determine whether it was more probable than not that this was what the plaintiff was actually suffering. Whether the plaintiff was actually psychotic, his thinking was disordered, as is evident from Ms Glynn's assessment that he was "just not there" and "completely off the planet" as well as the observations of police set out above. I do not regard it as helpful to overlay an expectation that the plaintiff was behaving rationally (that, if he wanted to kill himself, he would have jumped over the balcony on the Military Road side), when he was plainly not.
Mr Maconachie submitted that, to the extent to which the plaintiff's actions were reactive to fear of police, the police's actions constituted an assault. I accept Mr Hutchings's submission that the evidence does not establish that the plaintiff's actions were as a result of fear or apprehension of police or as a result of the taser (since the plaintiff had already turned to the Young Street side before the taser was fired or police rushed towards him). Accordingly, the allegation of assault has not been made out.
Further, Mr Maconachie submitted that the striking of the plaintiff by one barb of the taser was sufficient to constitute a battery. Mr Hutchings accepted that the striking of a person with a taser barb, even if there was no NMI, amounted to a battery and that, accordingly, to make out its defence, the defendant was required to prove that its conduct was lawful.

[30]

The defence to battery that the defendant acted lawfully

In Croucher v Cachia, Leeming JA, at [21], after summarising the authorities held that a defendant who directly causes physical contact with the plaintiff will commit a battery unless the defendant proves that it was "utterly without fault": Weaver v Ward [1792] Eng R 2772; (1616) Hob 134; 80 ER 284.
In order to determine the legality of the conduct of the police it is necessary to examine the statutory and common law framework within which they acted.
Sections 6(2) and (3)(b) of the Police Act 1990 (NSW) relevantly provide that the functions of the police include "the protection of persons from injury or death … whether arising from criminal acts or in any other way". This obligation required police to respond and act with a view to preventing the plaintiff from harming himself: see also the authorities referred to in New South Wales v Tyszyk [2008] NSWCA 107 at [106]-[111] (Campbell JA). It also required police to take action, if required, to prevent the plaintiff from harming others, including guests at the party and police officers.
As at 20 February 2016, s 230 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) provided: "It is lawful for a police officer exercising a function under this Act or any other Act or law in relation to an individual or a thing, and anyone helping the police officer, to use such force as is reasonably necessary to exercise the function."
Powers are conferred on police officers by various pieces of legislation, including the Mental Health Act 2007 (NSW). Of present relevance, the Mental Health Act provides: "22 Detention after apprehension by police (1) A police officer who, in any place, finds a person who appears to be mentally ill or mentally disturbed may apprehend the person and take the person to a declared mental health facility if the officer believes on reasonable grounds that - (a) the person is committing or has recently committed an offence or that the person has recently attempted to kill himself or herself or that it is probable that the person will attempt to kill himself or herself or any other person or attempt to cause serious physical harm to himself or herself or any other person, and (b) it would be beneficial to the person's welfare to be dealt with in accordance with this Act, rather than otherwise in accordance with law. (2) A police officer may apprehend a person under this section without a warrant and may exercise any powers conferred by section 81 on a person who is authorised under that section to take a person to a mental health facility or another health facility."
Section 81 of the Mental Health Act relevantly provides: "81 Transport of persons to and from mental health facilities and other health facilities (1) The persons listed below may take to or from a mental health facility or another health facility any person who is authorised by this Act to be taken, or transferred, to or from the facility - … (b) an ambulance officer, (c) a police officer, … (2) A person authorised by this Act to take a person to or from a mental health facility or other health facility may - (a) use reasonable force in exercising functions under this section or any other provision of this Act applying this section, and …"
It was the plaintiff's case that the officers were empowered under ss 22 and 81 of the Mental Health Act to apprehend the plaintiff as appears from the following paragraphs of the further amended statement of claim: "27. … when the police officers and each of them, or alternatively when the actively engaged police officers and each of them, came upon the plaintiff at the said premises the plaintiff appeared to the said police officers and each of them to be mentally ill or, in the alternative, mentally disturbed. Particulars (a) The plaintiff was agitated; and/or (b) The plaintiff was speaking irrationally; and/or (c) The plaintiff was waving his arms and yelling and screaming. 28. Each of the police officers officer believed on reasonable grounds that: (a) the plaintiff had recently attempted to kill himself, or in the alternative that it was probable that the plaintiff would attempt to kill himself, or alternatively would attempt to cause serious physical harm to himself; and (b) it would be beneficial to the plaintiff's welfare that he be dealt with in accordance with the Mental Health Act 2007, rather than otherwise in accordance with law. 29. Each of the police officers was thereupon empowered to apprehend the plaintiff without a warrant pursuant to section 22 of the said Act and to exercise powers, conferred by section 81 of the said Act, on the plaintiff to take him to a mental health facility or another health facility."
Although the defendant formally denied these paragraphs in its defence, it was plain from the way the case was conducted that the defendant accepted these allegations. Mr Hutchings submitted that the denial reflected only the form of the pleading and not the substance of the allegation. It is difficult to follow why the defendant did not admit the allegations set out above. However, nothing turns on this as the defendant accepted them throughout the hearing.
Section 574B of the Crimes Act 1900 (NSW) provides: "574B Prevention of suicide It shall be lawful for a person to use such force as may reasonably be necessary to prevent the suicide of another person or any act which the person believes on reasonable grounds would, if committed, result in that suicide."
I am satisfied, on the basis of the evidence referred to above, that Probationary Constable Herold believed that if the plaintiff went over the railing he might die and that this was his intention. Although the plaintiff was not otherwise suicidal, the effect of the drugs he had taken had caused him, to Probationary Constable Herold's knowledge, to try to jump off the balcony before the police arrived. In those circumstances, Probationary Constable Herold was also authorised by s 574B to use reasonable force to prevent the plaintiff from going over the balcony.
The taser was discharged in the plaintiff's direction because the police were concerned to protect the plaintiff from the harm that would be occasioned if he went over the balcony railing. As set out above, this amounted to battery and involved the use of force. The force used was limited to the firing of the taser. This constituted force, which was, in all the circumstances, reasonable and was inflicted in pursuance of the police functions to protect the plaintiff from harm. The force would have been reasonable had the plaintiff been effectively tasered and was nonetheless reasonable even though he was not. At the point the taser was discharged, the imperative was to prevent the plaintiff from going over the railing. Whether the police would have apprehended him and taken him to a mental health facility for assessment has been rendered largely hypothetical because he did go over the railing. Although the powers under the Mental Health Act were available to police, the function that was actually exercised fell squarely within s 6 of the Police Act. The force used was authorised by s 230 of LEPRA. It was also authorised by ss 22 and 81 of the Mental Health Act and s 574B of the Crimes Act. The powers were exercised lawfully and for a proper purpose.
Thus the use of force (by the discharge of the taser) was lawful. As it was lawful, it provides a complete defence to battery. To the extent to which Mr Maconachie sought to overlay this principle by reference to the words "utterly without fault" (from Weaver v Ward, which was approved by Leeming JA in Croucher v Cachia) and contend that there is an additional element which the defendant must prove in its defence to battery, his contention fails. Beazley P in State of New South Wales v McMaster (2015) 91 NSWLR 666; [2015] NSWCA 228 (McMaster) held at [233] that if the use of force was lawful under s 230 of LEPRA, there was a complete defence to battery. Her Honour said at [230]: "The legislature has expressly made lawful what would or may otherwise be contrary to law, whether criminal or civil. Relevantly for present purposes, s 230 makes lawful action that would otherwise constitute a battery. If Constable Fanning's conduct satisfied the terms of s 230, there was no battery."
This question did not need to be decided by the other judges (McColl and Meagher JJA) in McMaster. While Basten JA in Owlstara v State of New South Wales [2020] NSWCA 217; 285 A Crim R 53 at [11] has expressed reservations about this reasoning, at least in the context of arrest (which is not in issue here), the passage in [230] of McMaster was expressly applied by Leeming JA in Pham v Commissioner of Victim Rights [2019] NSWSC 1060 at [22]. In any event, the use of force in the present case, which I have found to be reasonable, was also authorised by ss 22 and 81 of the Mental Health Act.
If this Court were to find that the defendant was liable in battery by reason of no more than a use of reasonable force which was authorised by legislation, this would produce an incoherence in the law. I am satisfied that the defendant has established a defence to the battery which was committed when the taser barb went into the plaintiff's right upper leg.
In these circumstances, it is not necessary to consider the other defences relied upon. However, I am obliged to do so to fulfil my responsibilities as trial judge.

[31]

The defence of intoxication: s 50 of the Civil Liability Act

The defence of intoxication under s 50 of the Civil Liability Act is in Part 6 of the Civil Liability Act and, by reason of s 47, applies to any civil liability of any kind for damages for injury. Thus, it provides an alternative defence to battery as well as to negligence. Section 48 of the Civil Liability Act defines intoxication as follows: "A reference in this Part to a person being intoxicated is a reference to a person being under the influence of alcohol or a drug (whether or not taken for a medicinal purpose and whether or not lawfully taken)."
Section 50 applies where it is established that the person who suffered injury, the plaintiff, was, at the time of the act that caused the injury, "intoxicated to the extent that the person's capacity to exercise reasonable care and skill was impaired": s 50(1) of the Civil Liability Act. Section 50(2) prohibits a court from awarding damages unless it is satisfied that the injury "is likely to have occurred even if the person had not been intoxicated."
In the present case, the plaintiff was intoxicated as a consequence of the consumption of several schooners of VB. However, until he inhaled the drug at Unit 1, he was conscious of his surroundings, capable of walking from the Oaks Hotel to Tim's place and from there to Unit 1. He was sufficiently co-ordinated to unpack a carton of beer and put the containers in the fridge and to pin another man to the ground as well as to desist, when requested by the man's partner. He was also sufficiently articulate to ask the three men why they were behaving so wildly. At this stage, there was no indication that the plaintiff was either aggressive (notwithstanding the pinning of the man to the ground as a response to being hit with a beer carton) or that he was contemplating self-harm, much less suicide.
However as soon as the plaintiff inhaled the drug, his thinking became disordered and he was unable to appreciate where he was or how he was interacting with others. It made those around him both scared for their own safety and very concerned for his welfare. He threatened to jump off the balcony before the police arrived and was in a position where that was a possibility.
I am satisfied that, but for the intoxication caused by his ingestion of the drug, he would not have experienced significant thought disorder, would not have gone out onto the balcony and threatened to jump (before police arrived) and would not have gone over the railing. As at 20 February 2016 he had much to live for. There was no indication, before he took the drug, that he wished to harm himself, much less take his life. He had a girlfriend whom he intended to marry and was working in his own business. He had a loving family and a circle of friends, with whom he socialised regularly. I am satisfied that he would not have gone over the balcony railing but for the ingestion of the drug. Accordingly, the defence of intoxication under s 50 of the Civil Liability Act has been made out and defeats the plaintiff's claims in battery and negligence.

[32]

The defence of self-defence: s 52 of the Civil Liability Act

Section 52(2) of the Civil Liability Act relevantly provides that a "person carries out conduct in self-defence if and only if the person believes that the conduct is necessary to defend himself or herself or another person … and the conduct is a reasonable response in the circumstances as he or she perceives them." Section 52(1) provides: "52 No civil liability for acts in self-defence (1) A person does not incur a liability to which this Part applies arising from any conduct of the person carried out in self-defence, but only if the conduct to which the person was responding - (a) was unlawful, or (b) would have been unlawful if the other person carrying out the conduct to which the person responds had not had a mental health impairment or a cognitive impairment at the time of the conduct."
The defendant has established that, at the time Probationary Constable Herold discharged the taser, he believed that it was necessary to do so to save the plaintiff from injuring himself by going over the balcony railing. For the reasons given above, I consider that Probationary Constable Herold's response was a reasonable one since, had the taser had the desired effect, there was a real prospect that it would have caused NMI and the plaintiff would have fallen onto the floor of the balcony to Unit 1, with minimal injuries (and certainly much less serious injuries than were sustained, or were likely to have been sustained, when he went over the railing and tumbled to the balcony on the floor below).
The plaintiff's conduct had been unlawful in that he had consumed an illicit drug in contravention of s 12 of the Drug Misuse and Trafficking Act 1985 (NSW) (the DMTA). He had also engaged in a breach of the peace, by pinning down the man on the floor and causing fear among the guests at the party. However, the conduct to which Probationary Constable Herold was responding was the plaintiff's threat to throw himself off the balcony. Neither suicide nor attempted suicide is unlawful: s 31A of the Crimes Act. Although the plaintiff was damaging the table at the time, this was relatively inconsequential in the overall scheme of things. Although the plaintiff clenched his fists, it does not appear that he was engaging or even particularly conscious of those around him such as to be threatening them with violence. In these circumstances, I am not persuaded that the defence under s 52 of the Civil Liability Act has been made out.
It follows from my reasons, that s 53 of the Civil Liability Act does not arise, since I consider that Probationary Constable's conduct was a reasonable response.

[34]

Section 54 of the Civil Liability Act: criminals not to be awarded damages

Section 54 of the Civil Liability Act, which is relevantly a defence to battery and negligence, relevantly provides: "54 Criminals not to be awarded damages (1) A court is not to award damages in respect of liability to which this Part applies if the court is satisfied that - (a) the … injury or damage to, the person that is the subject of the proceedings occurred at the time of, or following, conduct of that person that, on the balance of probabilities, constitutes a serious offence, and (b) that conduct contributed materially to the … injury or damage or to the risk of death, injury or damage. … (3) A serious offence is an offence punishable by imprisonment for 6 months or more. …"
Shortly prior to going over the balcony railing, the plaintiff had inhaled illicit drugs, which amounted to an offence contrary to s 12 of the DMTA, which falls within the definition of serious offence in s 54(3) because it carries a maximum penalty of two years' imprisonment. For the reasons given above in relation to the defence under s 50, I am satisfied that the inhalation of illicit drugs materially contributed to the plaintiff going over the balcony railing.
While I understood Mr Tierney (who took over as lead counsel due to Mr Maconachie's indisposition for the final day of the hearing) to accept that s 54 applied in terms, he contended that the Civil Liability Act, when read as a whole, ought result in s 54 being read down so as to exclude unlawful conduct associated with intoxication, that being a matter which was covered exhaustively in s 50.
I do not accept that submission. Section 54 applies to all torts, including those otherwise excepted by s 3B of the Civil Liability Act, whereas s 50 does not apply to those actions which are excepted by s 3B. Thus, s 54 was intended to have a separate and distinct operation, including in circumstances where s 50 did not apply. Further, the plain meaning of the words in s 54 applies where the intoxication is the consequence of an illicit drug, but not where the intoxication is a consequence of a licit drug, such as VB. I am satisfied that, whether or not the MDMA was as pure as the MDMA which the plaintiff had snorted on previous occasions, the substance he took comprised at least some MDMA and was therefore an illicit drug.
For these reasons, I am satisfied that the defendant has made out the defence in s 54 of the Civil Liability Act.

[35]

Alleged negligence

Mr Tierney accepted that I was bound by authority to find that the police did not owe a duty to the plaintiff in the circumstances of the present case where the police were exercising their duties as police officers in respect of the plaintiff. The authorities cited by the defendant in support of this proposition (which were accepted by Mr Tierney to have this effect) include Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35, Thompson v Vincent [2005] NSWCA 219 at [152]-[153] (Mason P, Handley JA and Pearlman AJA agreeing); New South Wales v Klein [2006] NSWCA 295 (Young CJ in Eq, Beazley and Santow JJA agreeing) and Stuart v Kirkland-Veenstra (2009) 237 CLR 215; [2009] HCA 15.
I understood Mr Tierney not to abandon the plaintiff's claim in negligence, against the possibility that the High Court might find, by departing from earlier authority, that the police owed a duty of care to the plaintiff in the present case.
Trial judges usually have an obligation to make such findings of fact as might be required, even if hypothetically, to avoid the matter having to go back to a first instance judge, if an appellate court overturns the decision at first instance. Thus, trial judges, who find for defendants, are obliged to determine damages. However, in circumstances where I am bound to find that there was no duty owed by the police to the plaintiff, it is difficult to make findings about what such a duty would require, if it existed.
Furthermore, there was considerable prevarication by those appearing for the plaintiff as to the relevant counterfactual, and indeed whether a counterfactual was relevant at all. I understand the measure of damages in tort (whether battery, assault or negligence) to be the amount of money required to put the plaintiff in the position he or she would have been had the tort not been committed: Gates v City Mutual Life Assurance Society Limited (1986) 160 CLR 1 at 12-13 (Mason, Wilson and Dawson JJ); [1986] HCA 3. This is a separate concept from the question whether damage need be proved (it need not in battery and assault but it is the gist of the cause of action in negligence).
However, for the very reasons which ground the rationale for the courts not recognising such a duty, I find it difficult to formulate what "reasonable precautions" were required.
Mr Maconachie, when pressed to identify the counterfactual, submitted that the police should have waited downstairs until the ambulance officers arrived since they were mere "adjuvants" to the ambulance officers. Mr Tierney subsequently disavowed that submission and contended that the police should have gone up and tried to calm the plaintiff down on the balcony but, if they had not been successful, they should have retreated and waited for the ambulance officers. It was also variously suggested that there were too many police officers on the balcony and that fewer would have been less threatening to the plaintiff.
The difficulty with these submissions is that they are founded on hindsight reasoning, which is impermissible: Lim v Cho [2018] NSWCA 145 at [34] (Sackville AJA, Leeming JA agreeing). The reason so many police officers attended was that, as communicated by Ms Glynn to the Triple-0 operator (and, in similar terms, by Ms Herriott to police officers outside the unit block), the plaintiff was large, strong, antagonistic and "semi-violent". The guests at the party were scared and were "huddled" inside the unit. When Ms Herriott saw six officers on the footpath, she expressed a concern that their number was insufficient. Further, the plaintiff appears not to have even been aware that the people on the balcony (if he was aware of them at all) were police officers.
Further, the plaintiff's submissions are premised on the unproved allegation that the plaintiff would not have gone over the railing but for the presence of the police.
Thus, the plaintiff fails on causation. He has not established, on the balance of probabilities, that anything the police would, or could, have done differently in the few minutes when they were present would have produced a different result. As a consequence, his claim in negligence must fail, even if a duty were owed, which I am bound to find that it was not.

[40]

Factual findings relevant to damages

By the age of 16, the plaintiff was using illicit drugs and continues to do so. After he finished school, he worked with his uncle as a painter. He undertook training at TAFE in building. In his youth, the plaintiff worked on various commercial sites owned by Cbus.
In 2012 the plaintiff had a serious car accident (referred to above) from which it took him two or three years to recover. Following his recovery, he engaged in further education, including a diploma in project management and also a course at TAFE in building construction. He had not yet completed the course before 20 February 2016.
While he was recovering from the motor vehicle accident, the plaintiff renovated a friend's house for as many hours as he was able. Subsequently, he worked as a self-employed painter and builder. He operated his business as a sole trader. He also worked on commercial sites. He had worked at Barangaroo until about November 2015, installing and painting fire pipes and plant rooms.
After the incident on 20 February 2016, the plaintiff was taken to Royal North Shore Hospital where he remained for some months. He was in the Intensive Care Unit from his admission in the early hours of 21 February 2016 until he was transferred to the spinal ward on 2 March 2016. He remained in the spinal ward until 5 May 2016 when he was transferred to Royal Ryde Rehabilitation Unit. He remained there until he was discharged to the Mt Wilga Private Hospital on 28 August 2016 where he stayed until 10 October 2016. He made an application for public housing through the National Disability Insurance Scheme (NDIS).
Following his discharge from Mt Wilga Private Hospital, the plaintiff lived with his mother in a rented unit at Beecroft until he was allocated an accessible public housing residence. He was absent from his mother's residence from 29 November 2016 to 5 December 2016 for the purpose of undergoing carpal tunnel surgery.
In June 2017, the plaintiff moved to a dwelling in Ryde which was provided to him by "Link Housing", which provides purpose-built, wheelchair accessible housing.
As part of the NDIS, the plaintiff receives three hours of assistance a day for daily living and social, civic and community participation (such as to help him to go the swimming pool). The assistance also involves cleaning his residence and washing linen and helping to prepare food. The plaintiff has a dog and, in order to ensure that the open wound on his foot does not become infected with dirt or dog hair, the floors of his residence are cleaned regularly.
The plaintiff has required pain relief for the injuries he has sustained. Although medication such as Endone has been prescribed for him, he presently tries to avoid pain relief in order to preserve his vital organs and to avoid becoming addicted to them, although he sometimes takes medicinal marijuana to ameliorate the effects of muscle spasm.

[43]

The claims for aggravated and exemplary damages

Mr Tierney pressed the plaintiff's claim for aggravated and exemplary damages. Mr Hutchings submitted that s 21 of the Civil Liability Act operated to preclude such an award.
Section 21 of the Civil Liability Act provides: "In an action for the award of personal injury damages where the act or omission that caused the injury or death was negligence, a court cannot award exemplary or punitive damages or damages in the nature of aggravated damages."
"Negligence" is defined in s 5 of the Civil Liability Act to mean failure to exercise reasonable care and skill. It therefore has a wider ambit than merely actions which are pleaded as claims in negligence. Thus, s 21 has been held to apply to all cases where damages are awarded on the basis of a failure to exercise reasonable care and skill, however the claim is actually pleaded: State of New South Wales v Ibbett (2005) 65 NSWLR 168; [2005] NSWCA 445 at [118] (Ipp JA) and [200]-[209] (Basten JA), approved in Croucher v Cachia at [35] (Leeming JA). Because there was no relevant intent to injure (see above in the context of s 3B of the Civil Liability Act), the plaintiff's claims are founded on an act of "negligence" within the meaning of s 21. Thus, he is not entitled to an award of aggravated or exemplary damages.
For completeness, I feel bound to add that, even had I not considered the award of aggravated and exemplary damages to be precluded by s 21, I would not have been satisfied that there was any basis for such an award in the present case.
First, the plaintiff gave no evidence to support an award of aggravated damages.
Secondly, Mr Tierney submitted that the following forensic decisions taken by the defendant warranted an award of aggravated damages: 1. the defendant's failure to call Ms Glynn or Ms Herriott or any of the other guests at the party; 2. cross-examining the plaintiff's father about the plaintiff's drug use in the presence of the plaintiff; 3. alleging that there were no taser strikes; and 4. the maintenance of the defence under s 5O of the Civil Liability Act, until it was formally abandoned in submissions.
As to (1), the defendant had no obligation to call either Ms Glynn or Ms Herriott. As to (2), the questions about the plaintiff's drug use arose in the following exchange: "Q. And was drug use a problem in his life, to your perception, before February? A. No, he was functioning, doing whatever he had to do, working consistently. Q. There were periods where he was unable to work, weren't there? A. In relation to previous accidents, yes. Q. What I want to put to you is that he had an illicit drug problem, to your understanding, before 20 February 2016. A. Yes. Q. And it was a constant feature of his life. A. Yes. Q. And that before 20 February 2016, he'd had a persistent problem with abusing alcohol. A. I wouldn't call it abusing it. I would call it binge drinking on occasions, yes. Q. The motor vehicle accident that he had in 2012 was as a result of him being detected drink driving and then seeking to escape from police when he had a very serious motor vehicle accident. A. Correct. Q. And he was unable to work for two to three years after that, correct? A. About that time, yes. Q. Because of the very significant nature of his injuries. A. Correct."
I do not regard this cross-examination as in any way inappropriate. At least part of its forensic purpose was to ascertain whether the plaintiff's father knew of significant events in the plaintiff's life, as well as to impugn the plaintiff's father's evidence that the plaintiff had been working consistently, which other evidence proved was not the case.
As to (3), I understood the defendant's case at all times to be that the taser had not operated effectively and had not caused NMI but that one taser barb had made contact with the plaintiff. As to (4), although the defence was maintained until submissions, it did not appear to take up any time in the proceedings or turn on any evidence which was not otherwise relevant to other issues in the case.
It was my impression that Mr Hutchings and Mr Coffey conducted the defendant's case in a proper way, with due sensitivity to the plaintiff's disabilities and cognitive impairment. After the plaintiff's oral evidence had been concluded, I informed him that he could continue to watch the proceedings remotely or choose not to do so if he preferred. Even had such an award not been excluded by s 21 of the Civil Liability Act, I do not regard any such award as warranted in the present case.
As for exemplary damages, they are, in substance, designed to punish the defendant for its conduct. In the present case, the police were faced with a difficult and challenging situation to which they responded promptly. That their efforts did not ultimately save the plaintiff from himself does not diminish their diligence in coming to the scene as quickly as possible and responding in a way which was designed to protect the plaintiff's life. I am not persuaded that there is any basis for an award of exemplary damages.

[44]

The plaintiff's loss of earning capacity

The plaintiff can drive a vehicle and transport his wheelchair in it. He can unload the wheelchair and single-handed, get it out of his utility and use it on arrival. Notwithstanding his residual strength and ability to drive, the consensus of the experts, which I accept, is that the plaintiff has no, or little earning capacity. A formal assessment would, in my view, confirm the conclusion that the plaintiff's physical injuries put any non-sedentary work out of his reach while his cognitive impairment makes him unsuitable for sedentary work.
As referred to above, the plaintiff was working as a self-employed tradesperson at the time of the incident. He had, according to a history provided to Royal North Shore Hospital, lived with his mother since his motor vehicle accident about four years previously in April 2012. Nothing was produced in answer to a notice to produce issued on behalf of the defendant for his tax returns and other financial records. During his evidence in chief, the plaintiff said that he had no particular memory of his earnings and referred to his accountant.
On 11 May 2022, the third day of the hearing and after the plaintiff had finished giving evidence, Mr Tierney (who adduced evidence and made submissions on damages on behalf of the plaintiff) sought to tender a document entitled "Payment summaries" which covered periods from 2011 to 2021, and a document which purported to be for the financial years ended 30 June 2017 (that is, for the first complete financial year after the incident), 30 June 2016, 30 June 2015, 30 June 2014, 30 June 2013, 30 June 2012 and 30 June 2011. Having regard to the timing of their production, the inference is compelling that they were prepared for the purposes of these proceedings. No underlying documents were produced. In these circumstances, I rejected the tender of these documents.
Mr Tierney submitted that the plaintiff was entitled to have his loss of earning capacity, which he submitted was total, assessed on the basis of average weekly earnings (AWE).
As the Civil Liability Act applies, s 13 is presently relevant. It provides: "13 Future economic loss - claimant's prospects and adjustments (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted."
Although the evidence establishes that the plaintiff was doing home renovation work for friends and associates and also doing some commercial work, there are no documents to establish how much he was earning prior to the incident. There are various possibilities. First, the plaintiff was earning a substantial income which he was paid in cash, which explains the lack of documentary records of bank statements, etc, to establish his earnings. Alternatively, his work product was so low that it did not warrant putting in a tax return because his earnings were below the threshold. There are other possibilities, too, but it would be speculative to postulate them, much less to choose between them. The dearth of evidence not only makes it difficult to assess how much the plaintiff could charge for his labour but also how much the plaintiff worked before the incident. Further, as he was living with his mother, it cannot be assumed that he made enough to support himself independently.
I am prepared to assume that, when the plaintiff worked, he did so as a self-employed tradesperson. The evidence does not establish either how much he worked, or what he earned. The plaintiff's evidence was that he has almost always been self-employed and that, from 2014 to 20 February 2016, he was doing "high-end bathroom and kitchen renovations" which he mainly undertook in Sydney. He said that his earnings were variable as he was paid on completion of jobs.
The plaintiff's father's evidence has been extracted above in the course of my reasons for declining to award aggravated damages. The evidence of the plaintiff's mother, Ms Baker-Floyd, was that between 2005 and 2012, the plaintiff had worked in his uncle's painting business. She said that after the car accident in 2012, the plaintiff moved back to live with her, her husband (not the plaintiff's father) and other members of the family. He then studied building design at TAFE as part of his rehabilitation. She said that in 2015, the plaintiff had his own building and renovation business and that he helped his mother and her husband to paint and renovate their home in Beecroft. Ms Baker-Floyd said that "[the plaintiff's] business was going very well."
But for the incident, I find that the plaintiff's most likely future circumstances would have been to work on home renovation jobs for friends and associates for which he would be paid at the completion of the jobs. I do not consider that there is any necessary relationship between what he would earn doing this and AWE.
In Perez v Reynolds [2020] VSC 537, Forbes J was required to assess damages of a self-employed tradesperson who had been sexually abused by a teacher when he was a child. The plaintiff, who was 47 years old at the time of the proceedings, had been for some years, employed as a labourer, stonemason or handyman in his family business but had no formal trade qualifications. Ultimately, Forbes J adjusted the figure for an AWE figure and refined it to take account of the significant evidence in the form of tax returns, salary estimates in various job guides as well as expert reports, none of which is available in the present case.
In Laws v GWS Machinery Pty Ltd [2007] NSWSC 316; (2007) 209 FLR 53, Rothman J assessed damages for the plaintiff who was a carpenter. His Honour considered the minimum rate of pay for a tradesperson carpenter under the relevant award, as well as the AWE for an adult male in NSW as relevant figures to guide the assessment.
The plaintiff's schedule of damages seeks past economic loss of $489,954 (based on $1,222.70 per week (AWE minus Centrelink disability support pension), plus superannuation of 10% and interest at 2% to 9 May 2022). In the alternative, the plaintiff seeks a buffer of $300,000 if the loss is incapable of precise calculation.
The plaintiff seeks future economic loss on the same basis of $813,767.99 (on the basis that the Civil Liability Act applies). In the alternative, the plaintiff seeks a buffer of $600,000 for future economic loss if the loss is incapable of precise calculation.
The principles in Blatch v Archer (1774) 1 Cowp 63 apply. It was entirely within the plaintiff's power to prove his earnings and his earning capacity. He has chosen to do neither. In these circumstances, it is a matter of speculation as to what he has lost for his past earnings or the quantum of his loss of future earnings.
On a strict reading of s 13 of the Civil Liability Act, I ought make no award for future economic loss since I cannot predict his most likely circumstances in terms of quantum of earnings. However, in circumstances where I accept that the consequence of the incident is that the plaintiff cannot work again, and the assumption that I must make for the purposes of making findings on damages (that the defendant is liable), I propose to accept the buffer figures put forward by the plaintiff in the particulars. In these circumstances, the award for past economic loss is $300,000 and the award for future economic loss is $600,000. These figures are not challenged by the defendant.
I appreciate that there is some tension between this approach and what Basten JA said in Ranger v Turner [2007] NSWCA 162 at [39] that awarding damages by way of a buffer is usually appropriate only where there is no basis for making a calculation. The reason why there is no such basis is because evidence of the basis has not been adduced and not because it is of a type that cannot otherwise be established.

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