Daniels v NT [2007] NTSC 65

Houda v NSW [2005] NSWSC 1053; [2005] Australian Torts Reports 81-816

Lackerstein v Jones (1988) 92 FLR 6

NSW v Ibbett [2005] NSWCA 445; (2005) 65 NSWLR 168

[1] The plaintiffs claim damages, including punitive damages, for false imprisonment and assault and battery. It is alleged that, on 14 December 2005, Phillip Mather and James O'Connell ("Mather" and "O'Connell" respectively) and another man, Clifford McGuinness, were walking along a street in Palmerston when they were approached by two police officers, one of whom "physically restrained" O'Connell. When Mather attempted to extricate O'Connell he was also restrained. Additional police attended the scene, and Mather and O'Connell were grappled to the ground and sprayed repeatedly with capsicum spray. They allege that at no time were they told what offence they had committed, or that they were under arrest. They were taken to the police station where they were "forcibly incarcerated" and subjected to the washing of their eyes. They were later left at Royal Darwin Hospital.

[2] The defendant denies the initial allegation of physical restraint. It is admitted that two police officers, First Class Constable Connor ("Connor") and Constable Riesenweber ("Riesenweber"), approached the men. It is alleged, inter alia, that Connor tapped O'Connell on the shoulder and asked him to wait while Connor sought information about him by means of his portable police radio. While they were waiting, O'Connell is alleged to have attempted to assault Riesenweber, and Connor sprayed him with capsicum spray to prevent the assault. Mather was accidentally sprayed at the same time. This was followed by a struggle during which Connor was punched on the jaw by O'Connell and Mather was dragged away and sprayed with capsicum spray by Riesenweber.

[3] The defendant pleads reliance on section 148C(3) of the Police Administration Act, which precludes damages in the nature of punitive damages, and section 27(2) of the Personal Injuries (Liabilities and Damages) Act , which, in civil claims for damages for personal injuries, excludes damages for non-pecuniary loss if the degree of permanent impairment is less than 5% of the whole person. The defendant has not raised any issue as to vicarious liability.

[4] Mather has applied, pursuant to section 148F(2), for leave to join Connor and include a claim for damages in the nature of punitive damages. Such damages appear to equate to exemplary damages (see Lackerstein v Jones (1988) 92 FLR 6, 40-42 and Daniels v NT [2007] NTSC 65). Evidence in support of this application includes copies of statements made by Mather and McGuinness to the police. Mather has not specifically deposed as to the truth of these statements, but no issue was taken as to their admission. The gist of his evidence is that, for no apparent reason, O'Connell was seized, thrown to the ground and sprayed with capsicum spray by the older officer. Mather attempted to intervene and was seized, roughly handled and sprayed with capsicum by the younger officer, and seized and roughly handled by the other police when they arrived. Mather and O'Connell were then taken to the police station, and, later, to the hospital.

[5] There is also evidence of statements made by Connor to other police officers immediately after the incident and during the course of a police enquiry. In his formal statements he states that he thought that there was a warrant out for the arrest of O'Connell, and that he had requested him to wait while this was being checked. He admits touching O'Connell on the shoulder, but says that he sprayed him, and, by accident, Mather, with capsicum when he saw that O'Connell was about to assault Riesenweber. He also said that O'Connell punched him on the jaw during the course of the scuffle that ensued and that he called for the assistance of other police officers. There is evidence that, immediately following the incident, he spoke to another police officer, and made no mention of the attempted assault on Riesenweber, and that he later pleaded guilty to a police disciplinary charge that he had arrested O'Connell without lawful power.

[6] O'Connell died after the commencement of this proceeding, and his estate has been joined as a party. It is conceded, on behalf of the plaintiffs, that the estate of O'Connell has no claim for punitive damages by reason of section 6(a) of the Law Reform (Miscellaneous Provisions) Act and it appears to be common ground that the Mather is precluded from claiming punitive damages for assault by reason of section 19 of the Personal Injuries (Liabilities and Damages) Act. It appears to remain open for him to claim punitive damages for false imprisonment (see Houda v NSW [2005] NSWSC 1053; (2005) Aust Torts Reports 81-816 and NSW v Ibbett [2005] NSWCA 445; (2005) 65 NSWLR 168).

[7] Part VIIA of the Police Administration Act appears to be designed to protect members of the Police Force from personal civil liability (see Daniels v NT paragraph [4]). It may be inferred that leave should not be granted to include a claim for damages in the nature of punitive damages unless there are proper and adequate grounds. The discretion is not otherwise constrained.

[8] There is a difficulty in that Connor did not directly constrain Mather and the evidence does not appear to support a case that Connor and Riesenweber were acting in concert. However, Connor appears to have been the officer in charge. If the plaintiffs' version of events is accepted, it is arguable that there was no basis for the seizure of Mather, and that Connor should have known this and he should not have allowed Mather to be seized and taken to the police station. It may thus be established that Connor was directly responsible for the seizure of Mather and liable for his false imprisonment. If such was the case, the Court may well award damages in the nature of punitive damages on the grounds of a conscious and contumelious disregard for Mather's rights (see Lackersteen at page 41). This is an appropriate case for leave to include a claim for damages in the nature of punitive damages. It follows that Connor may be joined as a party.

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