Citation: Wessell v The State of New South Wales (No 2) [2017] NSWDC 235
Court: District Court of New South Wales
Date: 22 June 2017
Judge(s): P Taylor SC DCJ
Background
The plaintiff was a public housing tenant in Toongabbie who had defaulted on rent and remained in occupation after multiple Tribunal orders requiring him to vacate. On 21 November 2013, sheriff's officers attended to enforce the eviction, accompanied by two police officers. When the plaintiff refused to leave and closed the door, police demanded he open it or it would be broken down.
After the plaintiff reopened the door, police announced he was under arrest to prevent a breach of the peace, then pulled him physically from the doorway. He was capsicum-sprayed and struck with a police baton at least four times before being handcuffed and taken to Blacktown Police Station. He was held for approximately two and three-quarter hours before being released on a Court Attendance Notice for resisting police in the execution of their duty. Those proceedings were subsequently dismissed.
The plaintiff sued the State of New South Wales (which accepted vicarious liability for the officers' conduct) for false arrest, unlawful imprisonment, assault and battery, and malicious prosecution. The malicious prosecution claim had already been resolved in the plaintiff's favour in separate proceedings. This judgment dealt with the remaining claims for assault, battery, and unlawful imprisonment.
Legal Issues
- Whether the officers had lawful authority to arrest the plaintiff for breach of the peace, including whether reasonable grounds existed for the arrest
- Whether the force used, including capsicum spray and baton strikes, was reasonable in the circumstances
- Whether the plaintiff resisted arrest in a manner that justified the force applied
- Whether the plaintiff was entitled to compensatory, aggravated, or exemplary damages
- What physical and psychiatric injuries, if any, were caused by the incident, and whether any loss of earning capacity was established
Decision
The court found that the plaintiff's conduct at the doorway, including his refusal to leave and use of profanity, did not on the evidence amount to an actual breach of the peace or give rise to a reasonable belief that one was imminent. An arrest "to prevent a breach of the peace" requires a genuine and reasonable apprehension of an imminent breach. The court was not satisfied that threshold was met on the facts as found.
Notwithstanding this finding on the lawfulness of the initial arrest, the court made detailed factual findings about what occurred in the doorway and during the use of force. It found the plaintiff was physically pulled from the premises, capsicum-sprayed, and struck with a baton multiple times, and that those acts were intentional. Because the torts involved intentional acts with intent to cause harm, the Civil Liability Act 2002 did not apply and common law principles governed the assessment of damages.
On damages, the court accepted that the baton strike effects lasted a couple of weeks and the capsicum spray effects a couple of days. It rejected the plaintiff's claim of a coccyx injury for want of contemporaneous evidence, and found no psychiatric injury was established. As there was no enduring injury, no award for lost earning capacity was made. The court indicated it would have awarded $30,000 in compensatory damages for the assault and battery, and $5,000 for the unlawful imprisonment.
However, notwithstanding these damages findings, the court ultimately entered judgment for the defendant. The reasoning to that outcome is not fully reproduced in the available text, but the final orders record judgment in the State's favour with costs against the plaintiff.
Orders Made
- Judgment for the defendant (the State of New South Wales)
- Plaintiff to pay the defendant's costs
- Any further application in respect of costs to be notified to the judge's associate within seven days
Key Takeaways
- An arrest "to prevent a breach of the peace" requires reasonable grounds to believe a breach is imminent. Angry words, profanity, and refusal to comply with an eviction did not, on the facts of this case, satisfy that threshold.
- Where police conduct amounts to an intentional act with intent to cause harm, the Civil Liability Act 2002 is excluded under section 3B(1), and common law principles apply to the assessment of damages.
- The District Court declined to award damages for lost earning capacity where the plaintiff had not worked for over a year before the incident and no enduring physical or psychiatric injury was established from the use of force.
- Claims of injury, such as the plaintiff's coccyx injury raised in this case, may be rejected where they lack contemporaneous medical records, photographic evidence, or consistency with security footage.
- The State's acceptance of vicarious liability for the officers' conduct under the Law Reform (Vicarious Liability) Act 1983 meant the plaintiff's claims were directed at the State rather than the individual officers.
Legislation and Cases Referenced
Legislation:
- Civil Liability Act 2002 (NSW), s 3B
- Crown Proceedings Act 1988 (NSW)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 99, 230
- Law Reform (Vicarious Liability) Act 1983 (NSW)
- Uniform Civil Procedure Rules 2005 (NSW), rr 29.10, 42.1
Cases:
- Lavin v Albert [1982] AC 546
- R v Howell [1982] QB 416
- State of New South Wales v Kuru [2007] NSWCA 141
- State of NSW v Tyszyk [2008] NSWCA 107
- Wessell v The State of New South Wales [2017] NSWDC 233 (the related malicious prosecution decision)