Coleman v Watson & Shaw & Anor [2007] QSC 343

SUPREME COURT OF QUEENSLAND CITATION: Coleman v Watson & Shaw & Anor [2007] QSC 343 PARTIES: PATRICK JOHN COLEMAN (Plaintiff) v SENIOR CONSTABLE MITCHELL DOUGLAS WATSON (First Defendant) CONSTABLE ASHLEY ROBERT SHAW (Second Defendant) STATE OF QUEENSLAND (Third Defendant) FILE NO/S: S344 of 2004 DIVISION: Trial Division PROCEEDING: Trial ORIGINATING COURT: Supreme Court at Townsville DELIVERED ON: 20 November 2007 DELIVERED AT: Supreme Court at Townsville HEARING DATE: 13 & 14 November 2007 JUDGES: Cullinane J ORDER: I give judgment for the plaintiff against the first defendant in the sum of $20,000 together with interest at the rate of ten per cent for 5.2 years producing a figure of $10,400 and a total of $30,400. I give judgment for the plaintiff against the second defendant in the sum of $20,000 together with interest at the rate of ten per cent for 5.2 years producing a figure of $10,400 and a total of $30,400. I give judgment for the plaintiff against the third defendant in the sum of $20,000 together with interest at the rate of ten percent for 5.2 years producing a figure of -- 1 of 10 -- 2 $10,400 and a total of $30,400. I order that the first defendant, second defendant and third defendant pay the plaintiff’s costs of and incidental to the action to be assessed, such costs to be limited to the costs which would have been recoverable had the plaintiff instituted the proceedings in the Magistrate’s Court. CATCHWORDS: POLICE – ACTIONS FOR WRONGFUL ARREST, TRESPASS AND OTHER WRONGS – GENERALLY – LIABILITY OF CROWN AND ITS EMPLOYEES – where plaintiff was not allowed by police into a sitting of parliament - where first and second defendant admitted liability for wrongful arrest and wrongful imprisonment. TORT – JOINT OR SEVERAL TORTFEASORS – GENERALLY. DAMAGES – COMPENSATORY DAMAGES – whether plaintiff is entitled to compensatory damages for the conduct of the first and second defendant. DAMAGES – EXEMPLARY AND AGGRAVATED DAMAGES – where plaintiff after being told he could not enter the public area to view a sitting of parliament approached the media attracted their attention and gave a short speech – where plaintiff invited the police to speak with the media and the media to speak with the police – where plaintiff contends that the media coverage of his arrest was hurtful to him - whether in the circumstances exemplary and aggravated damages should be awarded. Personal Injuries Proceedings Act 2002 (Qld) Cassell and Co Ltd v Bruin (1972) A.C. 1027, considered Henry v Thompson [1989] 2 Qd.R. 412, cited Lamb v Cotogno (1987) 164 C.L.R 1, discussed COUNSEL: The plaintiff appeared on his own behalf Mr Rashleigh for the first, second and third defendants SOLICITORS: The plaintiff appeared on his own behalf Crown law for the first, second and third defendants [1] The plaintiff has instituted proceedings against the first and second defendants (both police officers) and the third defendant, the State of Queensland for damages for false imprisonment, assault and trespass to the person. -- 2 of 10 -- 3 [2] The third defendant is vicariously liable for the actions of the first and second defendants (who hold the ranks of Senior Constable and Constable respectively). [3] On the morning of the trial, the defendants admitted their liability to the plaintiff. [4] The matter was then litigated on the issue of damages. [5] The plaintiff claims both compensatory (including aggravated) damages and exemplary damages. [6] Some of the evidence which the plaintiff gave on the issue of damages related to consequences which, it seems to me, fall within the definition of personal injury in the schedule to the Personal Injuries Proceedings Act 2002. The plaintiff did not follow the procedure provided for by that Act, with the consequence that damages cannot be awarded for those matters. [7] The relevant events occurred on the morning of 3 September 2002. [8] On that day the Queensland Legislative Assembly was meeting at the Entertainment/Convention Centre situated at Sir Leslie Thiess Drive, Townsville. [9] This was an historical event being the only occasion on which the parliament had met outside of the capital city. The parliament has been a unicameral one since 1922. [10] The plaintiff was at the centre for the purposes of being present at this sitting when he was arrested by the first defendant and the second defendant and removed from the site and placed in the watchhouse. He was placed in the watchhouse at 9.20a.m. and admitted to bail by the Magistrates Court at Townsville at 2.38p.m. [11] What was said between the defendants (primarily the first defendant) and other police officers on the one hand and the plaintiff on the other hand was captured on an audio tape which is Exhibit 1. Much of the relevant events was also captured on a video (Exhibit 2) which contains footage taken by no less than three television stations. [12] Before turning to the facts of that day it would be appropriate to say something about the plaintiff as his position emerged from the evidence. [13] The plaintiff is a man in his mid-thirties. He describes himself as an activist. He has on a number of occasions been arrested by the police. His criminal history includes offences such as conducting an unlawful public address, failing to state his name and address, assaulting or obstructing police in the performance of their duty. He has successfully defended a number of charges brought against him by the police and has instituted proceedings against police in respect of claims for unlawful arrest and wrongful imprisonment, in some of which he was successful. [14] It can be said that there is a history of clashes between the plaintiff and the police arising out of the plaintiff's activities as an activist. I think that the word agitator would not be a term that the plaintiff would cavil with. -- 3 of 10 -- 4 [15] By 3 September 2002 it is obvious that police treated the plaintiff as someone to be kept under observation when he appeared in a public place or at a public event. [16] It is common ground here that the first and second defendants were instructed by their superiors to take action to prevent the plaintiff from entering the convention centre for the sitting of the parliament. [17] The plaintiff’s statement of claim accurately records in paragraphs 13, 18 and 19 the various exchanges between the plaintiff and the police (primarily the first defendant but at times other police officers). The only conversation in which the second defendant took part was to ask the plaintiff to keep walking at a time after he had been arrested and whilst he was being taken to a police van. [18] The plaintiff was standing near the entrance to the convention centre when he was approached by a Sergeant Edwards and the first defendant. Edwards asked to speak to him and shortly after the first defendant said words to the effect that their superiors had told them that the plaintiff was not allowed to go in “cause you’re a possible – ah – breach of the peace --.” [19] The plaintiff stated his name and said that he was a free speech activist and that all he wanted to do was to watch the parliament and he did not want to get arrested. [20] Thereafter there were a number of exchanges between the first defendant and Edwards on the one hand and the plaintiff on the other. The police officers repeated a number of times that their instructions were that he was not to enter into the centre and the plaintiff continued to state his desire to do so and asked who had authorised the police to prevent him from entering the centre. There was also some conversation about police numbers and the plaintiff asked to be allowed to write an objection in one of the police officers’ notebook. [21] Some time during this period two more senior police officers came on the scene – a Senior Sergeant Last and Superintendent Scholtz. [22] The plaintiff knew the former and when he asked the latter his name, was given it. [23] The plaintiff complained to them about not being allowed in and Scholtz told him that he would not be able to get in. The plaintiff stated that Scholtz was not able to give that direction. Edwards said that he and the other police officers who were there would look after the matter. [24] About this time the plaintiff left where he was standing near the entrance to the convention centre with the police officers and went a short distance to where a significant number of people were standing including some members of the press. It appears that there were groups of people protesting about various matters and members of the press were covering these. [25] The plaintiff told the police that he was going to go over to this group and tell them what the police had done and that he was going to then return and stand in line and that all he wanted to do was to go in, sit down, watch parliament and come out. [26] Last, who was still present, said: “We have reserved the right based on what your behaviour has been in the past, we have refused you entry ---.” -- 4 of 10 -- 5 [27] There was then some exchange about some other matters in which the plaintiff and Last were apparently involved. [28] The video which is Exhibit 2 shows the plaintiff standing in front of a crowd of people and making a brief speech to the effect that he was not being allowed in. He also referred to the fact that police were agitating for a pay rise and stated that he opposed this and expressed the view that any money given to the police force should be directed into accountability mechanisms. It is a fair inference that the plaintiff was in this way attempting to attract the attention of the press to his situation. [29] The plaintiff then returned to the entrance to the centre, followed this time by a number of media personnel. He took certain items out of his pocket and held them up in front of the cameras. [30] As he reached the door he was stopped by the two defendants and Edwards. [31] The first defendant told him that he could not go in and when the plaintiff asked why not the first defendant said that he had been given numerous instructions that he could not go in. He was asked to leave the premises at that time. [32] The plaintiff invited the police to tell the members of the media why he was not able to enter the centre and when the first defendant again repeated that he could not enter the plaintiff turned to the media and invited them to ask the police officer why he could not go in and watch the parliament “like everyone else”. He said that he did not want to get arrested. All he wanted to do was watch the parliament and then leave. When he was again told by the first defendant that he could not go in and that he would be arrested if he walked through the plaintiff said: “Well, I put my foot in. Are you gunna arrest me?” The video shows him putting his foot past the entrance to the centre. [33] There were some further exchanges in which the first defendant and Edwards repeated that the plaintiff could not enter and the plaintiff continued to ask why not and argue with the police officers. Edwards is recorded as saying “Let’s go. Just take him.” [34] The first defendant and the second defendant each took one of his arms. At this time the press were gathered round and photos were being taken. The plaintiff called out to the press stating what his name was and that all he wanted to do was to watch parliament and said “I’m afraid I have to – as usual - sit on the ground.” [35] The video shows that he sat on the ground and that each defendant took him by one elbow and each took a hand which they bent over at the wrist and that in this way he was restrained and moved some distance. The police asked him to stand up and to walk and a point was reached at which the plaintiff did stand up. However he again adopted the position of sitting down and was largely carried to the waiting police vehicle. However, at this time his feet touched the ground occasionally, whereas before his lower legs which were bent at the knee appeared to be off the ground. -- 5 of 10 -- 6 [36] He was taken to the police watch house and as I have said, was held in the cells until he was taken to the Magistrates Court where he was granted bail on certain conditions, one of which was that he did not go near the parliament during the time it was sitting in Townsville. [37] The plaintiff alleges that as a result of these events he was humiliated and shocked, felt he had been treated as an outlaw, and felt himself to be stigmatised. He said in evidence that he felt that he had suffered, to use his words, “a civil death.” He saw his honour as having been slighted and says he generally suffered a good deal of anxiety and distress both during the time he was at the convention centre when the events that I have just described occurred and when he was taken to the watch house and before the Magistrates Court and then when he was taken back to the convention centre to obtain his bicycle which was there. He spoke of members of the public laughing at him when he was arrested. [38] The following day articles appeared in the Townsville Bulletin and the Courier Mail about the incident. On the following Sunday the Sunday Mail published an article. The plaintiff complains about some aspects of these articles which he says were untrue. For example, the article in the Courier Mail under the name of Nathan Scholtz described him as a “confessed serial pest”. The plaintiff had had previous dealings with this journalist which he regarded as positive and felt hurt by the tone of this article. [39] He complains about similar references in the Sunday Mail in which he was described as a “northern nuisance and serial pest”. [40] He contends that these are matters which flowed from the torts committed against him and which have exacerbated the wrongs he has suffered. [41] The plaintiff was charged with two offences of obstructing a police officer in the exercise of his duty. The first it seems related to the point at which the plaintiff sought to physically enter the centre and move forward attempting to push past the first defendant. The second relates to the dropping of the plaintiff’s legs from underneath him after he had been arrested and when the police officers were taking him to the police van. [42] The transcript of the evidence is Exhibit 10. [43] The plaintiff was acquitted of both of these charges. [44] It is clear from the evidence of the first defendant that the defendants had been given instructions by senior staff including an Inspector Walmsley that the plaintiff was not to be allowed to enter the centre where the parliament was being held. [45] The defendants acted upon this instruction and arrested the plaintiff when he failed to obey the instruction not to enter. [46] In their evidence, before the Magistrates Court the defendants expressed the view that because of information they had received about the plaintiff’s history there was a risk that there might be a breach of the peace. -- 6 of 10 -- 7 [47] Reference was made to intelligence which the police had and the plaintiff tendered certain police documents which he obtained under the Freedom of Information legislation which include information in the nature of intelligence about the plaintiff’s activities (see Exhibit 11). [48] It is not clear whether this was included in the information which the defendants had received but it is likely that it was. [49] The plaintiff relies upon this evidence given before the Magistrate as exacerbating the wrongs suffered as a result of the torts of the defendants. [50] The plaintiff also referred to the fact that the defendants have persisted in their defence to this action from the time it was to commence in June 2004 until the morning of the hearing. [51] Neither defendant gave evidence before me. [52] As I have said there is to be excluded from any consideration of damages any personal injuries sustained by the plaintiff. However it would be an entirely artificial exercise if some attempt were made to exclude considerations of anguish and shock from the assessment of damages in a case of this kind and I did not understand it to be contended otherwise. [53] I think it fair to say that a reading of the authorities justifies the conclusion that damages are, in cases of this kind, primarily awarded to compensate for a sense of outrage, injury to feeling, humiliation and disgrace, indignity and the like. [54] The plaintiff claims damages by way of compensatory damages, aggravated damages, and exemplary damages. [55] The first of these two categories are compensatory damages. Lord Diplock in Cassell and Co Ltd v Bruin (1972) A.C. 1027 at pages 1124-1126 explained the nature of such damages and the principles applicable to them; “The three heads under which damages are recoverable for those torts which damages are ‘at large’ are classified under three heads: (1) Compensation for harm caused to the plaintiff by the wrongful physical act of the defendant in respect of which the action is brought. In addition to any pecuniary loss specifically proved the assessment of compensation may itself involve putting a money value upon physical hurt, as in assault, upon curtailment of liberty, as in false imprisonment or malicious prosecution, upon injury to reputation, as in defamation, false imprisonment and malicious prosecution, upon inconvenience or disturbance of the even tenor of life, as in many torts, including intimidation. (2) Additional compensation for the injured feelings of the plaintiff where his sense of injury resulting from the wrongful physical act is justifiably heightened by the manner in which or -- 7 of 10 -- 8 the motive for which the defendant did it. This Lord Devlin calls ‘aggravated damages.’ (3) Punishment of the defendant for his antisocial behaviour to the plaintiff. This is what Devlin calls ‘exemplary damages’--- ” [56] Exemplary damages are to be assessed separately from compensatory damages. See Henry v Thompson [1989] 2 Qd.R. 412. [57] The nature of exemplary damages and the principles governing the award of such damages were discussed by the High Court in Lamb v Cotogno (1987) 164 C.L.R 1. [58] There are various factors which might give rise to an award of exemplary damages and no particular type of conduct is essential. Generally speaking however, the purpose of such damages is to mark the disapprobation of the court for the conduct and to deter others from like conduct although an award of exemplary damages is not wholly in the nature of punishment. [59] The defendants pointed to the plaintiff’s approach to the press and his invitation to the police to explain to the press what powers they had to do what they had directed him to do followed by his invitation to the press to question the police about such powers. The defendants also pointed to the plaintiff’s sitting on the ground whilst the press was present and questioned his claim of injury to feelings, indignity, humiliation and the sense of desolation and stigmatisation that he asserted in the light of this conduct. [60] The plaintiff on the other hand gave evidence that notwithstanding his sense of shame and humiliation he did not simply want to leave with “his tail between his legs”. He went on to say: “---Your Honour, back to how I was feeling when I got arrested. You might know a person could have walked away. A person could have walked away from that situation, but I was faced with two humiliating prospects. The first was to walk away with my tail between my legs and let these people know that they could do that to me any time I want, in front of all those people many of whom would know that I stick up for the right to free speech. And this wasn’t an activist thing on that day. I wasn’t protesting, apart from what I said about police when I took the opportunity. And the other humiliation of possibly getting arrested for attempting to enter. I did think right near the end there before I got arrested that they’d relented and they’d let me in. I did put my food inside and I did say, “Are you going to arrest me?” that wasn’t an invitation, Your Honour. I did not consent to be arrested. I did not want to be arrested. I wanted to be let in and that was also very, very, very humiliating. So I’m stuck between a rock and hard place with all these people around me. What am I going to do? I got a reputation to uphold in that I believe in sticking up for myself. The law says that a man has the right -- 8 of 10 -- 9 to self-defence against an assault and that’s what an unlawful arrest is. You can do what is necessary to get out of an unlawful arrest, an unlawful assault, unjustified, without reasonable cause, assault and unlawful arrest, and that force can increase with the degree of force that’s being used against you and if they’re carrying guns well----- Well-----?-- You know what I mean? So a man has the right to defend himself, and I knew it, and yet I’m forced basically to hold myself back, not to fight. It was my right to fight, you know what I mean, to – like I do believe in honour, your Honour. You know what I mean? It was an attack on my honour and there was not getting out of it, whichever option I took I was going to get humiliated. Walk away, humiliation, they do it again. Get arrested, go through all that slander again, ‘cause they’d – they’d come into court, they write stories about you. I knew people write stories about people who get arrested, especially myself; I’ve been through it before, this is notorious facts, your Honour.” [61] The plaintiff on my assessment of him is of a somewhat combative and pugnacious character who is not in any way intimidated by police. He gave evidence in what can be described as an argumentative manner, often speaking over my attempts to stop him making assertions and expressing opinions. [62] The video shows that with some alacrity he took advantage of the presence of the media. He firstly made a short speech and having attracted their attention, returned, followed by media personnel to the entrance where he resumed his verbal dispute with the police. He invited the police to speak to the media and the media to speak to the police. [63] His complaints that the subsequent media coverage was particularly hurtful to him cannot be accepted. The fact of such coverage was inevitable given the plaintiff’s own actions. Responsibility for the errors in the coverage of which he complains, if error there be, cannot be laid at the door of the defendants. [64] I think it would be quite unrealistic to accept his claims of indignity, shame, mental suffering, feeling like an outlaw and the like at face value. [65] That is however not to say that there has not been a serious infringement of his rights. [66] When approached by the police he was not acting in a way that might have suggested a possible breach of the peace, nor was he courting the attention of the police or the media, nor was he taking part in any form of protest. He was on the evidence, simply walking towards the entrance to the centre for the purposes of, with other members of the public, entering the area where the parliament was to be sitting. [67] The right he was seeking to exercise was an important, indeed fundamental one. I have already referred to the historically unique character of the occasion. It is -- 9 of 10 -- 10 unlikely that the plaintiff as a resident of Townsville would have such an opportunity again or at least for a long time in his home city. [68] Making full allowance for the seriousness of the loss of liberty involved and the infringement of his rights as a citizen as a free person I think an appropriate award of compensatory damages is $20,000. [69] So far as exemplary damages is concerned I do not think this is a matter which calls for such an award. Although it is acknowledged that the defendants acted unlawfully and at the commencement of the trial admitted their liability there is nothing to suggest that they were acting in anything other than good faith. [70] The defendants had been instructed by their superiors to prevent the plaintiff from entering the premises. [71] It is not a case in which their attention to the plaintiff was in any sense arbitrary. There was evidence of conduct on his part in the past which would to any reasonable person have justified paying some attention to him when he was seen at the convention centre. The defendants were part of a group of police officers having the obligation to provide security at a gathering of parliamentarians. Members of the public who had a variety of interests including grievances were in attendance and the police undoubtedly were obviously going to be fully occupied. [72] There is nothing about the manner in which the defendants spoke to or otherwise dealt with the plaintiff which could be regarded as high handed or unreasonable. The audio tape rather suggests they dealt with him with considerable patience and courtesy. [73] The circumstances that I have outlined would justify the conclusion that the defendants were joint tortfeasors given the concerted action in which they engaged on the instructions of their superiors. As I understand matters the plaintiff contends that they are liable as joint tortfeasors. The consequence is that they are jointly and severally liable for all of the plaintiff’s damages as is the third defendant whose liability is vicarious. [74] I give judgment for the plaintiff against the first defendant in the sum of $20,000 together with interest at the rate of ten per cent for 5.2 years producing a figure of $10,400 and a total of $30,400. [75] I give judgment for the plaintiff against the second defendant in the sum of $20,000 together with interest at the rate of ten per cent for 5.2 years producing a figure of $10,400 and a total of $30,400. [76] I give judgment for the plaintiff against the third defendant in the sum of $20,000 together with interest at the rate of ten percent for 5.2 years producing a figure of $10,400 and a total of $30,400. [77] I order that the first defendant, second defendant and third defendant pay the plaintiff’s costs of and incidental to the action to be assessed, such costs to be limited to the costs which would have been recoverable had the plaintiff instituted the proceedings in the Magistrate’s Court. -- 10 of 10 --