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District Court 4 May 2009

Broughton v The State of New South Wales

[2009] NSWDC 5

Assault & violence
TORT ASSAULT USE OF OLEORESIN CAPSICUM SPRAY WHETHER IN SELF DEFENCE

Citation: Broughton v The State of New South Wales [2009] NSWDC 5
Court: District Court of New South Wales
Date: 4 May 2009
Judge(s): Levy SC DCJ

Background

Following Australia's rugby league defeat to New Zealand at Sydney Olympic Stadium on 15 October 2005, a large number of New Zealand supporters entered the playing field in a mood of post-match euphoria. The plaintiff was among those supporters on the field, and her sister had earlier physically assaulted a female police officer who was attempting crowd control.

The police officer sought to arrest the plaintiff's sister. The plaintiff remained on the field and took hold of her sister during the arrest. The plaintiff maintained she was trying to calm her sister down. The police perceived her conduct differently, treating it as an attempt to pull her sister free from police restraint.

During this struggle, the police officer deployed oleoresin capsicum spray (OC spray, sometimes called capsicum or pepper spray) and the plaintiff was sprayed. She brought a civil claim for damages against the State of New South Wales, as the employer of the police officer, alleging assault.

  • Whether the plaintiff's presence and conduct on the field, particularly holding her sister during the arrest, amounted to unlawful hindrance of police executing their duties
  • Whether the police officer was justified in using OC spray either as a measure of self-defence or to address the plaintiff's hindrance of the arrest
  • Whether the use of OC spray constituted an intentional battery amounting to civil assault
  • Whether, if liability were established, the plaintiff would be entitled to compensatory, exemplary, or aggravated damages

Decision

The court found that the police officer was justified in deploying OC spray in the circumstances and entered a verdict for the defendant. The court accepted that the plaintiff had been asked to leave the field and remained unlawfully. Her conduct in holding her sister during the arrest was found, on the police evidence, to constitute a hindrance to the lawful execution of police duties rather than a benign attempt to calm the situation.

The court accepted the defendant's self-defence argument. The plaintiff's sister had delivered a strong punch to the police officer shortly before the spray was deployed. The spraying occurred as part of a rapid, continuous sequence of violent events, and the court found the officer's response fell within the bounds of justified force.

On the assault analysis, the court confirmed that the tort requires proof of an intentional battery where the apprehension of harmful contact was either intended or foreseeable. The defendant bore the onus of proving justification, whether by self-defence or lawful authority. The court was satisfied the defendant discharged that onus.

On damages, had the claim succeeded, the court would have assessed general compensatory damages at $10,000. The court found no basis for exemplary damages, characterising the officer's conduct at worst as an error of judgment made in a rapidly evolving violent incident, rather than a contumelious disregard for the plaintiff's rights. No aggravated damages were warranted either, given the absence of aggravating features.

Orders Made

  • Verdict and judgment for the defendant
  • Plaintiff to pay the defendant's costs
  • Exhibits returned
  • Liberty to apply on 7 days' notice if further orders are required

Key Takeaways

  • The District Court confirmed that self-defence is available as a defence to a civil assault claim, provided the force used was not excessive, and that the defendant bears the onus of proving justification.
  • Actions taken pursuant to lawful authority can also defeat a civil assault claim, even where those actions would otherwise constitute a battery.
  • Where a police officer deploys OC spray in rapid response to a physical assault and ongoing hindrance of an arrest, a court may find the use of force justified rather than constituting a civil assault.
  • Remaining on a field after being directed to leave, and physically holding a person who is being arrested, may amount to unlawful hindrance of police executing their duties, even if the person's subjective intention was simply to calm the situation.
  • Exemplary damages require proof that the officer acted with contumelious disregard for the plaintiff's rights; conduct characterised as an error of judgment made in a violent, fast-moving incident will not ordinarily reach that threshold.

Legislation and Cases Referenced

Legislation:
- Civil Liability Act 2002 (NSW)
- Crimes Act 1900 (NSW)
- Sydney Olympic Park Authority Regulation 2001

Cases:
- Rixon v Star City Pty Ltd [2001] NSWCA 265; (2001) NSWLR 98
- McIntosh v Webster (1980) 43 FLR 112
- Pringle & Ors v Everingham [2006] NSWCA 195
- Walker & Anor v Hamm & Ors [2008] VSC 596
- Woodley v Boyd [2001] NSWCA 35