Barker v Commonwealth of Australia [2016] QSC 310

SUPREME COURT OF QUEENSLAND CITATION: Barker v Commonwealth of Australia [2016] QSC 310 PARTIES: GEOFFREY KENNETH BARKER (plaintiff) v COMMONWEALTH OF AUSTRALIA (defendant) FILE NO: BS7055/14 DIVISION: Trial Division PROCEEDING: Trial DELIVERED ON: 20 December 2016 DELIVERED AT: Brisbane HEARING DATE: 5, 6 and 19 December 2016 JUDGE: Jackson J ORDER: The order of the court is that: 1. The plaintiff’s claim is dismissed. 2. The plaintiff pay the defendant’s costs of the proceeding to be assessed on the standard basis until 19 February 2016 and on the indemnity basis thereafter. CATCHWORDS: TORTS – TRESPASS – TRESPASS TO THE PERSON – where the plaintiff was drinking before and during a flight to Brisbane – where on arrival at Brisbane the plaintiff was swearing, slurring, using abusive language and appeared aggressive – where the plaintiff was arrested by police and after a scuffle was taken to the ground – where the plaintiff’s left leg and ankle were injured – where the defendant’s several witnesses were consistent and contradicted the plaintiff’s account – where evidence indicated that the plaintiff was heavily affected by alcohol and had limited recollection – whether the force used was reasonable and necessary as required by s 14B of the Australian Federal Police Act 1979 (Cth) TORTS – MALICIOUS PROCEDURE AND FALSE IMPRISONMENT – FALSE IMPRISONMENT – where the plaintiff was requested to remain on the tarmac for approximately 10 to 20 minutes until the time of arrest – where the plaintiff appeared to remain there voluntarily – where the -- 1 of 13 -- 2 validity of the arrest was not challenged – whether the plaintiff was falsely imprisoned TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – SPECIAL RELATIONSHIPS AND DUTIES – POLICE OFFICERS – where the plaintiff was injured while being arrested – whether a duty of care was owed Australian Federal Police Act 1979 (Cth), s 14B, s 64B Aviation Transport Security Act 2004 (Cth), s 84(1) Criminal Code (Qld), s 6, s 355 Dowse v New South Wales (2012) 226 A Crim R 36; [2012] NSWCA 337, applied Enever v The King (1906) 3 CLR 969; [1905] HCA 3, cited Johnson v Northern Territory of Australia [2016] NTSC 49, cited Majindi v Northern Territory (2012) 31 NTLR 150; [2012] NTSC 25, cited R v Turner [1962] VR 30, cited Slaveski v Victoria [2010] VSC 441, cited State of Victoria v Richards (2010) 27 VR 343; [2010] VSCA 113, applied COUNSEL: S Anderson for the plaintiff D Atkinson for the respondent SOLICITORS: Shine Lawyers for the plaintiff Minter Ellison for the respondent [1] Jackson J: On 28 November 2011, Air Niugini flight PX025 from Port Moresby to Brisbane arrived at the Brisbane International Airport and stopped on the tarmac near the terminal at approximately 4:40 pm. Passengers from the flight disembarked down a stairway onto the tarmac. From there, they crossed a distance of approximately 50 to 60 metres to another set of stairs ascending into the terminal aerobridge. Once in the terminal, passengers would proceed through a duty free area towards immigration control and thence to the baggage area and customs clearance. [2] The plaintiff and his companion had been drinking on the flight. They had been directed by the cabin crew to cease drinking. On arrival, ground staff attended the flight. One of the ground staff was Michael Raleigh, another was Asher Mall. Having been alerted to a potential problem on the flight, Mr Raleigh asked the plaintiff to wait while he spoke to the cabin manager about what had happened. Meanwhile, at Mr Raleigh’s request, Mr Mall contacted the Australian Federal Police (“AFP”) and requested their attendance. [3] Initially, the plaintiff waited with Mr Raleigh and Mr Mall near the wing of the aircraft. They spoke. [4] A few minutes later, two Australian customs officers came over. One of them spoke to the plaintiff. Mr Raleigh and Mr Mall stepped back a little. They moved from near the wing to a point near the stairs ascending into the terminal aerobridge. -- 2 of 13 -- 3 [5] After an approximately ten minute period, two protective services officers (“PSOs”) and a member of the AFP arrived. The plaintiff and the two protective services officers then waited near the stairs ascending into the terminal aerobridge. They spoke. The plaintiff says he was directed to remain where he was. [6] The AFP member and Mr Raleigh went onto the aircraft and spoke to the cabin crew and flight crew on the aircraft. Mr Mall remained in attendance and the customs officers also remained in the area. [7] After a few more minutes, the member of the AFP returned from the aircraft to where the plaintiff and the two PSOs were waiting. He spoke to the plaintiff. [8] At approximately 5:12 pm, he made a decision to arrest the plaintiff and informed both the accompanying PSOs and the plaintiff that he was doing so. [9] The arrest was carried out by the AFP officer taking hold of the plaintiff’s right arm and one of the PSOs taking hold of his left arm. The plaintiff resisted. He was taken to the ground by the officers and handcuffed behind his back. [10] In the process of the arrest, the plaintiff’s left leg and ankle were injured. [11] The plaintiff claims damages for the torts of false imprisonment, assault and battery and negligence. [12] The claim of false imprisonment is limited. The plaintiff does not challenge the validity of the arrest as such. So the claim of false imprisonment is limited to the period from when the plaintiff alleges that he was directed by one of the PSOs to remain on the tarmac until the point of the plaintiff’s arrest. That is, the plaintiff claims that a request or direction by the AFP member or PSOs that he remain on the tarmac until the point of his arrest was unlawful and constituted false imprisonment. The damages claimed for false imprisonment do not include the personal injury sustained to the plaintiff’s left ankle during the arrest. [13] Second, although the plaintiff does not challenge the validity of his arrest, he claims that the force used during the arrest was not reasonable or necessary and therefore constituted the tort of battery. [14] Third, and alternatively, he claims that the personal injury he sustained to his left leg and ankle was injury caused by the tort of negligence. [15] The defendant is sued vicariously for the actions of one of the PSOs in directing the plaintiff to remain on the tarmac and the member of the AFP in detaining the plaintiff before the arrest and in carrying out the arrest, in reliance on s 64B of the Australian Federal Police Act 1979 (Cth). That section reversed the common law rule that the defendant was not vicariously for the torts of a peace officer in making an arrest under Enever v The King.1 Witnesses other than the plaintiff [16] The trial progressed unusually, because the plaintiff went overseas on business only a few days before it was set down to commence. Accordingly, directions were made 1 (1906) 3 CLR 969. -- 3 of 13 -- 4 that the trial proceed in two parts. The first part consisted of the witnesses other than the plaintiff, after which the trial was adjourned. At the resumption, the plaintiff gave evidence. [17] The defendant called Mr Raleigh, Mr Mall, Rex Rodwell, Craig Burnham, Kenneth Leith-Head, Christopher Denyer and Gary Turnbull, all of whom witnessed some of the events. Only Mr Raleigh and Mr Mall did not witness the arrest being carried out. [18] By the time of the trial the events over the relevant half hour and in the hours following were five years past. There were some understandable differences in the recollections of the defendants’ witnesses. However, in general, they were consistent. With the exception of Sgt Turnbull, all appeared to be giving evidence from recollection. In some respects, Sgt Turnbull’s evidence was disconcertingly detailed and given in long rehearsed answers not responsive to the question he was asked. But in the important respects, his evidence did not contradict that of the other witnesses, except for the plaintiff. Accordingly, in setting out the effect of the defendant’s witnesses evidence it is not necessary to distinguish each witnesses’ version of what happened. [19] The plaintiff descended the stairway from the aircraft without assistance. Mr Raleigh asked him to wait for the AFP to arrive at a point near the wing the aircraft. Mr Raleigh and Mr Mall waited with the plaintiff. [20] Mr Raleigh said: “Most of the words I couldn’t understand. He was very agitated. He was very – I couldn’t understand. He was very incoherent. But he kept on saying that I was a fucking cunt.” [21] Mr Mall observed the plaintiff. His speech was quite slurred. He was not “100 per cent steady” on his feet. They spoke. The plaintiff asked what he had done. At some point in this conversation, the plaintiff acted in a manner that Mr Mall found menacing and threatening. He called Mr Mall names. Among them, he called Mr Mall “a fucking cunt”. The plaintiff moved towards Mr Mall and came within only a few inches of Mr Mall’s face as he called him names. He said to Mr Mall: “I’m going to mess you up, you cunt.” [22] The two customs agents who came over were Mr Rodwell and Mr Burnham. Mr Rodwell spoke to the plaintiff and asked him to calm down. Mr Raleigh and Mr Mall stepped back a little, but Mr Mall stayed in the vicinity. [23] Mr Rodwell said to the plaintiff that he needed to wait. Initially, they were still standing near the aircraft wing. Then the group moved to the base of the stairs that ascended into the aerobridge and the terminal. [24] After a while, the AFP representatives arrived. From then, the conversation continued between the plaintiff and the AFP representatives. The customs officers stepped back but were still in the vicinity. [25] Mr Burnham saw the plaintiff speaking to Mr Leith-Head. The plaintiff had a negative reaction to the AFP representatives’ arrival. He swore at the AFP -- 4 of 13 -- 5 representatives. In particular, Mr Burnham recalls the plaintiff saying to Mr Leith- Head: “I’ll kill your wife, I’ll kill your kids, I’ll kill you.” [26] It appears that Mr Leith-Head arrived a little before the other two AFP representatives. He was talking with the plaintiff when Sgt Turnbull and Mr Denyer arrived. Mr Denyer also overheard the plaintiff making comments to Mr Leith-Head about Mr Leith-Head’s wife. [27] Mr Denyer observed the plaintiff. He had bloodshot eyes, was acting aggressively and was clenching his fists. He raised his voice and was slurring his speech. [28] When Sgt Turnbull first descended the stairs from the aerobridge onto the tarmac and approached the plaintiff, he heard the plaintiff say (to someone else) in a loud voice: “Well fuck me wouldn’t we all be happier to know that.” [29] Sergeant Turnbull noticed the plaintiff’s words were slurred, his face was red, his eyes were bloodshot and watery, he appeared unsteady and Sgt Turnbull could smell alcohol on his breath. [30] Sergeant Turnbull went onto the aircraft and spoke to aircrew, cabin crew and ground staff, after which he returned to where the plaintiff was standing with the others near the base of the stairs to the aerobridge. Mr Leith-Head and Mr Denyer had remained with the plaintiff while Sgt Turnbull went onto the aircraft. [31] When Sgt Turnbull returned, he spoke to the plaintiff. The plaintiff responded abusively, tensed up and clenched his fists in a rage of yelling and screaming. As a result of his conversations with the plaintiff Sgt Turnbull decided to arrest him. He informed Mr Denyer and Mr Leith-Head of his intention. He said to the plaintiff: “You are now under arrest for disorderly behaviour.” [32] He placed his hand on the plaintiff’s arm and squeezed it. Sgt Turnbull took the plaintiff’s right arm. Mr Denyer took the plaintiff’s left arm. From that point, the plaintiff immediately resisted. The plaintiff tried to break the AFP officers’ grip. He was yelling and screaming. [33] This was an important point in the narrative. Mr Mall did not see the arrest. Sgt Turnbull said the plaintiff pulled his arms and moved his body from side to side to break free of the hold. Mr Denyer said that the plaintiff wildly tried to escape the grip. Mr Burnham saw a bit of a struggle or scuffle. Mr Leith-Head said that the plaintiff resisted, braced himself and started to struggle against Sgt Turnbull and Mr Denyer. Mr Rodwell recalled a scuffle. [34] Sergeant Turnbull and Mr Denyer took the plaintiff to the ground. [35] Mr Denyer described the technique as rolling his arm along the plaintiff’s upper body and propelling the plaintiff’s body forward into a position where they could lower him onto the ground to place handcuffs on him. Mr Denyer believes Mr Leith-Head may have assisted by stabilising the plaintiff’s legs to stop him kicking. He did not see precisely what Sgt Turnbull did. Sergeant Turnbull’s impression was that the plaintiff tipped himself towards the ground. The difference in that impression and Mr Denyer’s recollection in this respect is not important. -- 5 of 13 -- 6 [36] The plaintiff moved forward towards the ground with Sgt Turnbull and Mr Denyer holding his arms. At the end of that movement they were crouched on either side of him and his hands were handcuffed behind his back. [37] Ater being taken to ground, the plaintiff was assisted to his feet by the AFP representatives. He complained that his leg or foot hurt. However, he proceeded up the stairs into the terminal with an AFP representative on either side. [38] When they reached the top of the stairs, Sgt Turnbull and Mr Burnham both recall that the plaintiff was offered assistance by way of a wheelchair but declined to wait for one, preferring instead to proceed into the terminal. He was taken to the AFP area while his passport and baggage were processed and cleared for him by the customs officers. [39] Later he was taken to the Royal Brisbane Hospital where his leg or ankle was x-rayed. [40] Following that, the plaintiff was taken to the Brisbane Watchhouse and formally charged. The plaintiff’s account and credibility [41] The plaintiff’s account of these events differs in substance from all the other witnesses. It is not necessary to set out all the detail but there are a few points of particular importance. [42] First, the plaintiff disputed that he was heavily affected by alcohol or drunk as a number of the other witnesses’ evidence would support or suggest. [43] Second, while the plaintiff accepted that he used bad language (although not perhaps to the extent stated by the other witnesses) he did not accept that he had threatened or attempted to physically intimidate any of those present by verbal threats or menacing behaviour such as clenching fists, tensing his body, moving into close proximity or appearing aggressively enraged. [44] Third, the plaintiff said that Mr Leith-Head behaved aggressively towards him, saying both to shut up and successively directing him to stand where he was then to sit down and telling him he was under arrest. [45] Fourth, the plaintiff said that his arrest was precipitated by him saying to Sgt Turnbull and the other AFP representatives that he was going to sue them. I observe that this serious allegation was not put to any of the AFP representatives or other witnesses to the arrest. [46] Fifth, he says that when he was arrested he offered no resistance until he arched upwards while being taken to the ground in order to avoid hitting his head on the ground as he was pushed forward but that his head hit the ground and he was groggy afterwards from the impact. I observe that it was not put to any of the AFP representatives or other witnesses to the arrest that the plaintiff only resisted in this way or that he hit his head and was made groggy by it. [47] Sixth, he said that he was fearful of the AFP representatives from the point of the arrest and offered both the head knock and that fear as an explanation of his subsequent behaviour at the hospital. -- 6 of 13 -- 7 [48] The plaintiff’s credibility was challenged by the defendant on a number of bases. First, the defendant submitted that the plaintiff’s intoxication was such that he had little recollection of the events. In support of this contention, the defendant relied on later admissions made by the plaintiff as to the amount of alcohol he had consumed before the arrest and admissions as to his recollection being affected by alcohol in the days and months following the arrest. [49] A relevant background circumstance is that the plaintiff generally avoids drinking alcohol because he has a problem with binge drinking. He said he had not consumed alcohol for 14 months before the day of the arrest. The plaintiff accepted that during the morning before boarding the flight at 1 pm on that day he had consumed probably about 7 rums at a hotel in Port Moresby with his companion. He denied that he had had at least eight rums. [50] He denied that he had three more rums on the flight but accepted that he had a coffee cup of whiskey and coke on the flight poured for him by his companion from a duty free bottle purchased in Port Moresby. [51] He denied that he was so affected by alcohol that his memory cut out from the time of the aircraft descending into Brisbane. [52] At 10:50 am on the day following the arrest, the plaintiff’s left ankle was examined at Pindara Hospital. The history recorded of the examination stated that the plaintiff had a “fall yesterday – can’t remember the mechanism – ETOH++”. The abbreviation ETOH stands for alcohol. The double plus signs signify emphasis. [53] At 3:19 pm on the same day the plaintiff attended the Gold Coast Hospital. Again the notes recorded that the plaintiff was “unable to recall events (due to) alcohol xs”. [54] On 2 December 2011, the plaintiff attended an outpatients clinic at the Gold Coast Hospital. The notes record the history that “the plaintiff does not remember exact mechanism of injury”. [55] On 11 January 2012, the plaintiff attended his general practitioner. The notes record the history that “has no memory of the events of the injury – loss of memory for about two hours – remembers plane descending – next memory was in hospital laying in bed … had 3 rums on plane – 1 hr before flight had about 8 rums”. [56] When confronted with the note that he had given a history that he had 3 rums on the plane the plaintiff suggested that he had converted the scotch he said he drank with his companion on the flight to an equivalent measure in rum. I reject that explanation as not credible. [57] As well as the evidence given by all the other witnesses to the effect that the plaintiff was at times incoherent on the tarmac, the defendant tendered a copy of a recording and transcription of the recording of the period when the plaintiff attended the Royal Brisbane and Women’s Hospital in the hours after the arrest as evidence of his drunkenness when arrested. [58] I find that the plaintiff was heavily affected by alcohol at the time of the arrest and that he has a very limited recollection of events (to the extent that he has one at all) and that his evidence about the relevant events suffers from being largely a reconstruction that is not genuinely based on any reliable recollection. -- 7 of 13 -- 8 [59] I also find that the plaintiff has failed to prove the facts in accordance with the other points of difference I have summarised from his evidence above. That finding follows principally from the weight of the evidence given by all of the other witnesses to the arrest and events shortly before the arrest and from my finding that the plaintiff’s recollection of the events is not reliable. [60] A further attack was made by the defendant on the plaintiff’s credibility based on what were submitted to be untrue statements made in the plaintiff’s statement of loss or damage. I do not accept the plaintiff was dishonest in those respects. False imprisonment [61] The plaintiff’s case is that a direction was given by Mr Leith-Head to the plaintiff to remain on the tarmac while the incident on the flight to Brisbane was investigated and that direction was unlawful and amounted to false imprisonment. As previously stated, the false imprisonment is alleged to have continued until the point at which the plaintiff was arrested. [62] It is unclear over what period of time the plaintiff alleges the false imprisonment occurred. Bearing in mind that the period between when the flight arrived at the terminal at or about 4:40 pm and the plaintiff’s arrest at approximately 5:10 pm was about 30 minutes and that the AFP representatives did not arrive until sometime likely to have been more than 10 minutes into that period, it could not have been more than approximately 20 minutes. The period was more likely than not to have been not more than 10 minutes. [63] More importantly, all of the witnesses called to give evidence apart from the plaintiff said that upon being requested to remain on the tarmac the plaintiff did so voluntarily. He did not ask whether he was free to leave. He did not insist on being able to leave. He was not told that he could not leave, although he was requested to remain by AFP representatives in apparent authority. [64] I do not accept the plaintiff’s evidence that Mr Leith-Head told him that he was arrested. I do find that Mr Leith-Head told the plaintiff to remain on the tarmac where he was and to sit down. It is strictly unnecessary to make a finding whether he told the plaintiff to shut up. Given the evidence that I accept of what the plaintiff said to Mr Leith-Head previously discussed, including offensive remarks about Mr Leith- Head’s wife and as to killing Mr Leith-Head’s wife and children, I accept that it is quite likely that Mr Leith-Head might have told the plaintiff to shut up, but if he did so, in my view, there was good reason for it. [65] In my view, there is no serious case of false imprisonment in these facts. The substance was that the plaintiff was reasonably requested and then directed to wait while the AFP representatives investigated the complaint that had been made requesting their attendance. I find that the plaintiff did not attempt to leave in a way that called for the AFP representatives to make an earlier decision as to whether to arrest the plaintiff in the circumstances and the directions given did not of themselves amount to a false imprisonment by overbearing the plaintiff’s will in the requisite sense. [66] The defendant relied on the statutory power to stop a person who is in an airside area under s 84(1) of the Aviation Transport Security Act 2004 (Cth) as authorising Mr -- 8 of 13 -- 9 Leith-Head’s direction to the plaintiff to stand or sit where he was. On the fact as I find them to be, it is unnecessary to decide whether s 84(1) supports a direction to stop without a search or whether Mr Leith-Head reasonably believed that it was necessary to stop the plaintiff for the purposes of safeguarding against unlawful interference with aviation in accordance with the meaning of that term as defined in s 10 of that Act. Section 355 of the Criminal Code (Qld) [67] As an alternative to the tort of false imprisonment at common law, the plaintiff alleges a breach of s 355 of the Criminal Code (Qld). That section provides: “Any person who unlawfully confines or detains another in any place against the other person’s will, or otherwise unlawfully deprives another of the other person’s personal liberty, is guilty of a misdemeanour, and is liable to imprisonment for 3 years.” [68] Section 6 of the Criminal Code Act 1889 (Qld) provides: “(1) When by the Code any act is declared to be lawful, no action can be brought in respect thereof. (2) A person who suffers loss or injury in, or in connection with, the commission of an indictable offence of which the person is found guilty has no right of action against another person for the loss or injury. (3) Subsection (2) applies whether or not a conviction is recorded for the offence. (4) Except as aforesaid, the provisions of this Act shall not affect any right of action which any person would have had against another if this Act had not been passed, nor shall the omission from the Code of any penal provision in respect of any act or omission which before the time of the coming into operation of the Code constituted an actionable wrong affect any right of action in respect thereof.” [69] In my view, the error in the claim based on s 355 of the Criminal Code is that a breach of s 355 does not confer a private cause of action for damages. Negligence [70] The plaintiff further pleads a cause of action in negligence. In my view, this claim is misconceived. There was no duty of care. See Dowse v New South Wales2 and State of Victoria v Richards.3 Assault and battery [71] Assault and battery are torts at common law. Although it will be necessary to take into account the statutory provisions that regulated the AFP representatives use of force in arresting the plaintiff, statute law has not generally altered the substance of the elements that constitute these torts at common law. Assault does not require 2 (2012) 226 A Crim R 36, 51 [52]. 3 (2010) 27 VR 343, 346-348 [14]-[17]. -- 9 of 13 -- 10 separate analysis in this case because there is no doubt that there was an application of force to the plaintiff’s person that would constitute an assault and battery unless it was justified by law. [72] A recent simple statement of the law in a case such as this was made by Mildren J in Majindi v Northern Territory,4 as follows: “The apprehension of the plaintiff, the handcuffing of him … is prima facie evidence of an assault and battery … unless justified by law.”5 [73] The relevant justification was the exercise by Sgt Turnbull of a power of arrest. As previously stated, the plaintiff does not dispute that the power of arrest had arisen. [74] However, where an otherwise lawful arrest is effected, there is a limit upon the force that may be deployed depending upon the situation. [75] The extent of the force which the AFP officers were authorised to use in the present case was regulated by statute. Section 14B of the Australian Federal Police Act 1979 (Cth) provided: “(1) A protective service officer must not, in arresting … a person for an offence … use more force, or subject the person to greater indignity, than is reasonable and necessary in order to make the arrest … (2) …” [76] The relevant principles at common law are similar to the statutory requirements that apply in this case. They were stated by Kyrou J in Slaveski v Victoria6 as follows: “[The person exercising the power of arrest] is entitled to use such a degree of force as in the circumstances [they] reasonably believes to be necessary to effect [their] purpose, provided that the means adopted by [them] are such as a reasonable [person] placed as [they were] placed would not consider to be disproportionate to the evil to be prevented.”7 [77] The subject matter dealt with in Slaveski was reviewed recently by Blokland J in the context of the law of the Northern Territory in Johnson v Northern Territory of Australia8 as follows: “This last phrase may be taken to refer to circumstances such as escape, resist or other significant non-compliance with submission to the arrest or to the continuation of offending. As the right to liberty is sacrosanct, the use of force and whether it is reasonable must be 4 (2012) 31 NTLR 150. 5 (2012) 31 NTLR 150, 165 [44]. 6 [2010] VSC 441. 7 [2010] VSC 441, [127]; citing R v Turner [1962] VR 30, 36. 8 [2016] NTSC 49. -- 10 of 13 -- 11 assessed in the context of orthodox and strict principles governing the power of arrest. Clearly arrest constitutes the deprivation of liberty of the person arrested. To protect personal liberty the law that permits and provides the circumstances in which a police officer may arrest or detain an individual is strictly construed. The approach that is taken to strictly construing s 123 of the Police Administration Act applies equally to the application of principles governing the circumstances in which the use of force will be considered reasonable. The relevant authorities also emphasise that the assessment of whether a police officer’s conduct is reasonable must be made in a manner that has regard to the many exigencies relevant to the circumstances in which an arresting officer’s decision is made. Those include the need for a quick decision, possibly in an emergency or other pressured environment. The assessment should not be made by reference to hindsight.”9 (footnote omitted) [78] A further statement of the common law was made by Kyrou J in Slaveski10: “In Walker v Hamm, Smith J emphasised that an assessment of the reasonableness of a police officer’s conduct must be made in a ‘realistic manner’ that takes into account the ‘reality that the officer has to make decisions quickly, often in emergencies and under pressure’. Similar statements appear in other cases. In Woodley v Boyd, for example, Heydon J said that ‘in evaluating the police conduct, the matter must be judged by reference to the pressure of events and the agony of the moment, not by reference to hindsight.’ His Honour then referred to the following observation of Connor J in McIntosh v Webster: ‘Arrests are frequently made in circumstances of excitement, turmoil and panic [and] it would be altogether unfair to the police force as a whole to sit back in the comparatively calm and leisurely atmosphere of the courtroom and there make minute retrospective criticisms of what an arresting constable might or might not have done or believed in the circumstances.’”11 (footnotes omitted) [79] In my view, s 14B does not gainsay some of the common sense propositions set out above that describe how to assess the reasonableness of a police officer’s conduct in using force in making an arrest. Was the force used reasonable and necessary? [80] There are a few notable features of the circumstances as I have outlined them previously. First, apart from the plaintiff, none of the five other people who were involved in or witnessed the arrest noticed or saw any circumstances that were indicative of unreasonable or unnecessary force being used to arrest the plaintiff. 9 [2016] NTSC 49, [273]-[274]. 10 [2010] VSC 441. 11 [2010] VSC 441, [130]. -- 11 of 13 -- 12 [81] On the contrary, generally the descriptions given were of the plaintiff being the aggressor leading up to the point of and during the arrest. [82] Second, in my view, it was not unreasonable or unnecessary for the AFP officers to take the plaintiff to the ground. Again, the general tenor of the evidence of the witnesses other than the plaintiff was that the plaintiff resisted the arrest and sought to break free. In those circumstances it was not unreasonable for Sgt Turnbull and Mr Denyer (possibly with help from Mr Leith-Head) to take the plaintiff to the ground and apply handcuffs to restrain him. In the lead up to the arrest, the plaintiff had made several direct physical threats and made many abusive comments to those standing nearby. He had physically displayed signs of anger and rage, including clenching his fists. [83] Third, it is not entirely clear what mechanism caused the plaintiff’s leg fracture and ankle injury. It is apparent enough that there must have been a twisting load applied to the bone so as to cause what was later discovered to be a fracture. However, there is nothing in the evidence otherwise to suggest any particular force or pressure applied to the plaintiff’s lower leg so as to cause the injuries. [84] In my view, on the basis of probabilities it cannot be concluded that the force used by Sgt Turnbull and Mr Denyer in carrying out the arrest was unreasonable or unnecessary, bearing in mind the general consistency of the evidence of those who were involved in or saw the arrest, apart from the plaintiff. [85] It follows that the plaintiff’s claim must be dismissed. Damages [86] In many cases it is appropriate for a trial judge to make an assessment of damages so that a successful appeal would not result in a retrial. [87] I have decided not to assess damages on that basis in this case. The components of damages claimed other than the assessment of past and future loss of earning capacity do not depend to any significant degree upon findings about disputed questions of fact. [88] Although I formed a negative view of the plaintiff’s evidence about the events of the day of the arrest, I did not form a general view that his evidence on damages should also be rejected. [89] One qualification is that the plaintiff’s opinions about the medical consequences of some of his injuries are irrelevant where they are not supported by qualified medical opinion evidence. [90] A few other comments on the damages evidence are called for. The leg fracture was undisplaced. It did not call for specific treatment nor has it resulted in any functional deficit. The plaintiff has also made a very good recovery from his ankle injury. Nevertheless, the pain and suffering associated with his recovery would have been significant. There were two surgical procedures involving fixing a ligament to the bone with a screw and later removing the screw followed by an extensive period of rehabilitation. In this respect, the plaintiff has no doubt assisted with his own recovery. Still, he has not returned to recreational activities that he used to enjoy being golf and running, although he frankly conceded he could return to golf. -- 12 of 13 -- 13 [91] Second, I found the evidence that the plaintiff suffered a significant loss of earning capacity to be generally unacceptable, both as to the factual bases for the loss claimed and as to whether the formulation of that loss was a robust or acceptable methodology for the calculation of the loss claimed. [92] There is no real dispute on the evidence as to the extent of the physical disability suffered by the plaintiff as a result of his leg fracture and ankle injury. Equally, there is no real dispute on the evidence that the plaintiff had a pre-existing degenerative lower back injury that might have prevented him from returning to heavy physical work, in any event, although the plaintiff would not accept that fact in evidence. [93] The calculation of loss on which the plaintiff’s claim for past and future economic loss is predicated on the difference between his earning capacity as a specialist welder supplying his personal labour as services and the earning capacity reflected in the profitability of the plaintiff’s companies’ business of supplying specialist welding equipment and services with the work being done through employees or subcontractors. [94] Acceptance of the fact that the plaintiff’s existing degenerative lower back injury might preclude him from returning to heavy physical work in any event undermines one important factual assumption on which the plaintiff’s claim for economic loss was based. [95] As well, the model that was constructed of the hypothetical earnings of the plaintiff failed to recognise that the plaintiff’s area of expertise is not as a welder as such. It is in the provision and operation of the specialist welding machines from which he or his company have derived earnings since 2009 or thereabouts. As the plaintiff frankly said in evidence, the market for the supply of those machines and services in Australia has changed because of the absence of significant pipeline projects in recent times. That is the reason for the change in the nature of the plaintiff’s companies’ business since January 2014 rather than his physical inability to do the work. [96] Third, the assumption that the “reduced” earning capacity of the plaintiff as a result of the injury to his ankle is reflected in a past and future projection of the 2015 or 2016 financial year results, as they were adjusted, was unwarranted, in my view. [97] Accordingly, in my view, there is no acceptable evidence of the amount of the plaintiff’s past or future loss of earning capacity. -- 13 of 13 --