Auret v Casino Austria International (Cairns) Pty Ltd [2003] QDC 418

DISTRICT COURT OF QUEENSLAND CITATION: Auret v Casino Austria International (Cairns) Pty Ltd [2003] QDC 418 PARTIES: DEREK MICHAEL AURET (Plaintiff) v CASINO AUSTRIA INTERNATIONAL (CAIRNS) PTY LTD (Defendant) FILE NO/S: 80 of 2001 DIVISION: Trial PROCEEDING: ORIGINATING COURT: District Court, Cairns DELIVERED ON: 31 October 2003 DELIVERED AT: Cairns HEARING DATE: 8,9,12,13 May 2003, 11,12 and 13 August 2003. JUDGE: Bradley DCJ ORDER: The claim is dismissed. That the plaintiff pay the defendant’s costs of defending this action including any reserved costs, if any, to be assessed. CATCHWORDS: COUNSEL: Plaintiff self represented T Matthews for the defendant SOLICITORS: Plaintiff self represented Quinlan Miller & Treston for the defendant Uncontested facts [1] On the evening of 8 December 2000 the plaintiff with a number of other people, including his girlfriend, attended at the premises of the Reef Casino, Cairns, owned and operated by the defendant. Initially he and his companions were in the foyer bar area where there was a live band and dancing. When one of the men in the group asked the plaintiff’s girlfriend to dance the plaintiff expressed his displeasure and his girlfriend verbally abused him (the plaintiff) and walked off. It appears from that point on the plaintiff was essentially on his own and his evidence is that he approached the dance floor intending to dance by himself but heard one of the band members say “Here comes Elvis” and found that as he attempted to dance in time with the rhythm of the band, the band slowed down and thwarted his dancing. -- 1 of 10 -- 2 The plaintiff then says that he decided to go and look for his girlfriend and to that end he entered the gaming area of the casino adjacent to the foyer. [2] At around ten past midnight the plaintiff came to the attention of James Potter, a security officer employed by the defendant. Mr Potter’s evidence was that he observed the plaintiff in the gaming area jumping up and down and bumping into other patrons. Mr Potter brought the plaintiff’s behaviour to the notice of his immediate superior Tony Walsh, a security operations manager who was also on duty in the gaming area. Mr. Walsh and Mr Potter observed the plaintiff for approximately 30 seconds following which Mr Walsh contacted the surveillance operations room of the casino and requested that the plaintiff be monitored by camera as he had instructed Mr Potter to approach the plaintiff and ask him to leave the premises. The video [3] The casino operates some 300 cameras which allow security and surveillance staff to observe most areas of its premises. The premises are monitored by surveillance operations officers via the cameras from a surveillance operations room. The procedure is that when security staff intend to approach a patron the surveillance operations room is notified and requested to monitor the approach and the patron’s movements thereafter. This was done in the case of the plaintiff and the plaintiff’s movements from the point of him being approached by Mr Potter until he was handed over to police some 15 minutes later were filmed and a video tape of that film is before the Court. [4] The video shows that after being approached by Mr Potter the plaintiff initially walked with Mr Potter towards the exit of the gaming area but after a few steps placed his right arm around Mr Potter’s shoulders. Mr Potter removed the plaintiff’s arm from his shoulders and at that point Mr Walsh approached the plaintiff. After a short time the plaintiff then continued to walk with Mr Walsh towards the exit but at one point when the two men were walking past a gaming table, the plaintiff took hold of Mr Walsh’s arms and appeared to push him up against other patrons. Mr Walsh appeared to regain his balance and again indicated to the plaintiff that he continue to walk towards the exit. As the two men walked through the exit area into the foyer the plaintiff stopped and commenced to move in a rhythmical fashion. The plaintiff then suddenly pushed past Mr Walsh and approached the dance floor area where he jumped up and down and waved his arms around somewhat dramatically. Mr Walsh followed the plaintiff and confronted him in response to which the plaintiff pushed Mr Walsh in the chest causing him to fall backwards into a large potted plant. [5] At that stage a number of security officers converged upon the plaintiff and after an apparently short but violent struggle, the view of which is partially hidden by the pot plant, the plaintiff was restrained with Mr Walsh on his right side and Mr Potter on his left and another security officer behind him. Mr Walsh and Mr Potter held the plaintiff’s hands and arms in a wrist-lock and commenced to walk him towards the main doors of the casino. However, after a short distance the plaintiff jumped violently up and down, managing to break Mr Walsh’s hold on his left arm and hand and the security officers struggled to regain control of him. The plaintiff was again held by way of wrist-locks and walked towards the glass front doors but immediately upon passing through the doorway the plaintiff again broke free and -- 2 of 10 -- 3 struck Mr Walsh in the chest, head and shoulders. There were at that time five security officers surrounding the plaintiff and he was taken to the ground with one officer on either side and another holding his lower legs. The plaintiff was held on the ground in a “crucifix position” with his arms outstretched and his lower legs held on the ground. The plaintiff remained in this position for some 12 minutes during which time he can be seen on a number of occasions to bob his pelvis up and down. [6] Upon the arrival of two police officers the plaintiff was handcuffed and allowed to sit up on the ground. He was spoken to by the police officers and eventually assisted to his feet and taken away. The plaintiff’s allegations [7] The plaintiff claims that whilst being held on the ground by the defendant’s security officers he was held in a “finger-lock restraint” which bent his fingers and wrists back causing him extreme pain and that this continued for the entire time he was on the ground despite his complaints and pleas to be released. The pain and discomfort was so great that at one point he lost control of his bowels. The plaintiff claims that as a result of being so held he sustained personal injuries, namely – (a) bi-lateral carpel tunnel syndrome (b) median nerve dysfunction (c) bruising and swelling (d) shock [8] Whilst admitting that he was initially requested to leave the premises, the plaintiff denies behaving in a disorderly manner or creating a disturbance and contends that the defendant had no basis on which to ask him to leave the premises. The plaintiff further claims that the conduct of the defendant was intentional and trespassed against the plaintiff’s person and that the defendant’s conduct was intended to and did humiliate the plaintiff in public and subject the plaintiff to ridicule and contempt and the plaintiff thereby claims aggravated and exemplary damages from the defendant. The plaintiff further claims for wrongful or false imprisonment. [9] The defendant’s case is that the plaintiff was acting in a disorderly manner in the gaming area prior to being requested to leave and again acted in a disorderly manner and created a disturbance in the foyer area, that he twice assaulted Mr Walsh and that the defendant’s security personnel used such force as was reasonably necessary to restrain the plaintiff in those circumstances to ensure his removal from the premises. [10] Mr Walsh did not press charges against the plaintiff for assault but the plaintiff was charged with behaving in a disorderly manner in a public place, namely The Reef Hotel and was convicted (apparently in his absence) of that offence in the Cairns Magistrates Court and fined $90, on 12 January 2001. [11] The plaintiff was engaged in work as a skylight fitter at the time of the incident and claims that he was unable to work for three weeks following the incident but that subsequently his ability to work has decreased and become restricted as a result of ongoing pain and disability. Request to leave premises -- 3 of 10 -- 4 [12] The plaintiff denied in cross examination that whilst in the gaming area he had on at least two occasions bumped into other patrons. However, the evidence of Mr Potter was that he noticed the plaintiff “jumping up and down and bumping into patrons…and generally dancing around about on the gaming floor”. When Mr Potter approached the plaintiff he formed the impression that the plaintiff was “under some influence of some drug or alcohol…I could smell alcohol on his breath, he had glassy eyes. He was incoherent when I was speaking to him he couldn’t focus on what I was saying.” Mr Walsh’s evidence was that when his attention was drawn by Mr Potter to the plaintiff he observed that the plaintiff “seemed to be unsteady on his feet and sort of acting in a strange manner”. Neil White, a surveillance operator employed by the defendant, heard the two-way radio call to the surveillance department regarding the plaintiff and observed Mr Potter attempting to get the plaintiff’s attention, “it appeared that he was having trouble getting his attention to get him to stand still”. When Mr Potter commenced walking with the plaintiff towards the exit Mr White observed that “Mr Auret just seemed a bit vague on what was going on the entire time sort of, and his arms were out, looking around the ceiling – that sort of thing”. Peter Elliott, the defendant’s security operations manager, was on the gaming floor that night and described the plaintiff as “acting in a different type of manner to a normal person” which was “a type of dancing – just jumping up and down, light toed type of action, swinging his arms around”. [13] The plaintiff’s evidence was that during the evening prior to entering the Casino he had consumed one and a half small plastic cups of wine, two stubbies and three schooners of VB beer, and had inhaled two puffs from a marijuana cigarette over a period of approximately four hours. He said that he did not drink anything at the Casino because he had run out of money. [14] With respect to all of the issues in dispute in this matter I found each of the witnesses who were employees of the defendant to be very credible witnesses. Each presented as rational sensible witnesses who were certainly not out to sensationalise the plaintiff’s behaviour. If anything the plaintiff’s behaviour was down-played by those witnesses. Each of the defendant’s employees who gave evidence before me impressed me as being well trained, knowledgeable regarding their powers and duties and properly supervised. They gave the impression of security personnel who even in trying circumstances, were trained to and, indeed, did act with restraint and discretion. The evidence of each of the defendant’s personnel was consistent with that of the others and importantly consistent with the objective evidence of the video. [15] The plaintiff, on the other hand, whilst I accept that his evidence was honest in that he does hold a genuine belief that he was not acting in a disorderly manner in the gaming area, nevertheless did not appear to have a good recollection of the events of the night of 8 December 2000. Whilst the plaintiff’s evidence was that he was behaving in a normal sober fashion in the gaming area, his evidence of a dispute with his girlfriend and being made fun of by the dance band immediately prior to entering the gaming area would suggest that he was in a somewhat agitated frame of mind when in that area, even if not significantly affected by drugs or alcohol. The plaintiff’s conviction for the offence of behaving in a disorderly manner in the casino that night is further evidence supporting the defendant’s allegations. -- 4 of 10 -- 5 [16] I accept the evidence given on behalf of the defendant in this regard and find that the plaintiff was acting in a disorderly manner prior to being asked to leave and on the dance floor area and that therefore the defendant’s employees were acting lawfully in requesting the plaintiff to leave and in ensuring his removal from the premises subsequently. Section 165 of the Liquor Act 1992 gave the defendant’s employees the power to require the plaintiff to leave the premises in these circumstances and to use “necessary and reasonable force” to remove him if he failed to leave. How was the plaintiff held? [17] The crux of the plaintiff’s claim is that the method in which he was held down on the ground outside the front doors of the Casino was such as to cause injury to his wrists. His statement of claim alleges:- “For that period of about 15 minutes, [servants and/or agents of the defendant] held the plaintiff in a finger-lock restraint by gripping the plaintiff’s fingers and bending his finger and wrists back.” [18] When asked in examination-in-chief whether he remembered what angle his wrist was being held in during the restraint on the floor the plaintiff replied “At the time I didn’t even know….at the time, I mean, it was just me, the pain.” The following exchange then occurred, Okay. Did you have any difficulty remembering it because of the level of pain?” -- It wasn’t – which way my wrist was bent wasn’t relevant to me, eh. Okay. HER HONOUR: But you are saying it was bent? – Yeah. At this stage when you were on the ground? – Yeah. And it was bent the same for the whole duration. Right from when you were inside around that pot plant area? – Accept [sic] for a brief time when I broke loose. Broke away. Okay. MR SHERIDAN: And you were describing the level of pain that you experienced when you were being led out of the casino in that restraint as being ---? – Yeah. ---eight out of 10? – Mmm. Could you estimate on a scale of 1 to 10 how much pain you were experiencing whilst you were on the ground? – I’ve never experienced – this is the – this is the – this is – yeah. This is the – I’m sorry I didn’t quite pick this up? – Well, I expected my wrist [sic] were going to break. [19] In cross-examination the plaintiff was asked the following:- -- 5 of 10 -- 6 I suggest you were held with your arm turned through about 45 degrees with the upper portion of your wrist on the ground and any pressure to restrain you being exerted on your elbow that that was the extent of your being held? – On the face of it I’d say you’re wrong, but at the time there was myself and – and the pain. And I was very preoccupied with that pain and the exactness of – the exactness of the execution of the hold is – is – is beyond me. Well Mr Auret, you’ve said in your statement of claim that you were held in “fingerlocks” with your wrists bent backwards. That’s just not true; is it? – I don’t know. Oh, okay. And you’ve said in your evidence-in-chief that you were held in “wristlocks” on the ground? – That – that is my perception. That is ---. [20] The evidence of the defendant’s employees regarding the way in which the plaintiff’s hands and wrists were held whilst he was on the ground was clear and consistent. Mr Potter who was holding down the plaintiff’s right arm described the plaintiff being placed “gently” on the ground with his hands in a “Y position” with his hands facing up and with pressure applied to the plaintiff’s shoulder to keep his arms straight and his elbow down towards the ground. Mr Potter stated “you just apply enough pressure to stop him moving” and denied that it was a wrist restraint but said that rather his thumb was on the plaintiff’s wrist while his fingers held the plaintiff’s palm upwards so as to make it easier to push the plaintiff’s elbow into the ground. [21] Mr Walsh, who initially had hold of the plaintiff’s left arm described the manoeuvre as follows:- “We’ve gently placed Mr Auret on the ground, then we’ve placed Mr Auret’s arms in a Y position, and placed downward pressure on his elbow and holding his hand with the palm facing upwards. This is known as a passive restraint, and at no time did we see any reason to apply any pressure to Mr Auret’s wrists in the lock-down position.” [22] Mr Walsh denied that any wrist restraints were applied to the plaintiff when he was in the lock-down position on the ground and stated that the reason why the plaintiff’s hand was held upright was so as to apply downward pressure to his elbow and to prevent him using his hands to push upwards. [23] Mr Voss, who relieved Mr Walsh on the plaintiff’s left hand side, also described holding the plaintiff’s palm in an upright position to enable his elbow to be placed on the ground with downward pressure on the elbow. He denied exerting any force or pressure on the plaintiff’s wrist. He denied hearing the plaintiff complain that his wrists were breaking and that he needed his wrists for his work. Both Mr White, who was holding the plaintiff’s legs whilst he was on the ground, and Mr Elliott, who was the senior officer at the scene and who gave the order to take the plaintiff to the ground, confirmed in their evidence that the plaintiff’s hands and wrists were held as described by Messrs Potter, Walsh and Voss. -- 6 of 10 -- 7 [24] The way in which the defendant alleges the plaintiff’s arms were held whilst he was on the ground was physically and graphically demonstrated before me by a number of witnesses on the solicitor instructing the defendant’s counsel. [25] Evidence was also given for the defendant by William Turner, a Senior Sergeant in the Queensland Police Service with 32 years policing experience, who is currently employed as the Chief Police Operational Skills and Tactics Instructor and is an expert in the use of methods of restraint. After viewing the video Mr Turner described the plaintiff as being held on the ground by security officers and “pinned and secured by means of straight arm locks and wrist locks”. It was Mr Turner’s opinion that the officers applied minimal pressure to the plaintiff’s wrists and that “the video tape clearly shows the officer controlling Auret’s right arm applying a wristlock however, the officer does not change his grip or apply leverage against Auret’s wrist for the duration of the hold-down. I can say this because the angle of hold does not change – even when Auret is trying to resist – Auret made several attempts to resist [in bobbing his backside up and down] however, he was securely and effectively held”. [26] When asked by myself whether the restraint being used on the plaintiff’s arms and hands whilst he was on the ground involved any use of pain control Mr Turner replied “Not pain control as such. What you’re doing is you’ve restricted the movement of their arm and their body. There’s not much pain associated with that hold.” In his report Mr Turner concludes that throughout the episode captured by the video:- “…the physical restraint and the force used by the security officers was reasonable and in accordance with good practice. There is no such thing as an easy restraint. All restraining incidents are dynamic and require skill, knowledge, confidence and teamwork. It is my opinion that the security officers had significant difficulty in controlling Auret because of his acts of resistance. The consequences of this resistance were such that the officers were ultimately forced to take Auret to the ground (in an attempt to regain and maintain control of him) and hold him there until the arrival of Police. I can find no video evidence to indicate that Auret was in significant pain as a result of his restraint and removal. There is also no evidence to indicate that the Security Officers used fingerlock holds or any excessive force.” [27] In evidence Mr Turner gave his opinion that from the plaintiff’s body language and his reaction as portrayed on the video there was no indication that the plaintiff was in any significant pain during the removal process. It was Mr Turner’s opinion that the fact that the plaintiff lost control of his bowels was not necessarily an indication that he was suffering from pain. [28] The evidence is clear that the plaintiff’s hands were placed in wrist-locks by Mr Walsh and Mr Potter as they attempted to walk the plaintiff through the foyer area to the front doors of the Casino. However the fact that the plaintiff was able on two occasions to jump up and down and break free of those holds indicates that even when such holds were applied to the plaintiff excessive pressure was not used by the defendant’s employees. This would indicate that even when such “pain -- 7 of 10 -- 8 compliance” techniques were applied to the plaintiff in effect the pain was not such as to elicit compliance with the defendant’s employees’ directions by him. [29] With respect to the issue of how the plaintiff was held on the ground by the defendant’s staff, again each of the security officers who gave evidence on behalf of the defendant gave persuasive, cogent and consistent evidence that the way in which the plaintiff was held did not involve any undue pressure being placed on his fingers or his wrists. In particular their evidence was that the plaintiff was not held in a finger-lock or wrist-lock restraint or in a manner which involved the use of “pain control”. The evidence of the defendant’s security officers is supported by that of Mr Turner whose expertise was not challenged, and in view of the plaintiff’s inconclusive and equivocal evidence of his recollection as to how he was being held on the ground, I have no difficulty in finding that the plaintiff was not held “in a finger-lock restraint by gripping the plaintiff’s fingers and bending his finger and wrists back” as pleaded or in any other manner that caused undue or unnecessary pressure to his wrists. I also find that the plaintiff did not verbally complain of pain to those around him whilst being held on the ground. Medical evidence [30] Whilst the medical evidence before me does indicate that the plaintiff has suffered some injury to his wrists (the evidence differs as to the extent to which he continues to be disabled by those injuries) and whilst the orthopaedic and neurological assessment appears to be that his injuries are consistent with the forcible flexing or extension of his wrists, the opinions of the medical specialists as to the cause of the injuries are of course dependant on the accuracy of the history given to them by the plaintiff. It appears that the plaintiff told the doctors he saw with respect to his injuries that he had had no prior history of problems with his wrists. However, the plaintiff in a written statement tendered during the hearing stated: “At the end of a heavy week in a period of increasing workload the claimants hands were in a tired condition from installing skylights. It is the opinion of the claimant that the defendants misinterpreted the stiffness of those tired hands for resistance which caused them to use excessive force, the result of which is evident on the video footage”. In cross-examination Dr Bruce Low, an orthopaedic surgeon, conceded that the carpal tunnel syndrome suffered by the plaintiff was “totally consistent with the sort of work that he does”. [31] The medical evidence does not therefore assist the plaintiff in proving that any injury (particularly, any permanent injury) to his wrists was caused by the actions of the employees of the defendant. Findings [32] In any event even if it could be proven that the actions of the defendant’s employees caused or contributed to any injury suffered by the plaintiff, I am satisfied on the evidence before me that the defendant’s employees at all times acted appropriately and responsibly and in accordance with their training, which training was proper and appropriate and that they were properly instructed and supervised. Mr Turner, after viewing the video, described the physical restraint and the force used by the defendant’s employees as “reasonable and in accordance with good practice”. In view of the evidence of the plaintiff’s behaviour in the Casino and particularly his assaults on Mr Walsh, I am satisfied that the defendant’s employees were justified -- 8 of 10 -- 9 in using, and did only use, such force as was reasonably necessary to remove the plaintiff from the Casino premises as permitted by s 277 of the Criminal Code or s 165 of the Liquor Act 1992. Further, on the evidence I am satisfied that the detention of the plaintiff by the defendant’s employees whilst awaiting the arrival of police was lawful and that in the circumstances the actions of the defendant’s servants or agents did not amount to a trespass against the plaintiff’s person or a false imprisonment of him and there is no evidence that the defendant’s conduct was intended to humiliate the plaintiff or subject him to ridicule and contempt. [33] At the commencement of this trial the plaintiff had solicitors acting for him and was represented by counsel. However, in the middle of the second day of the hearing the plaintiff’s counsel and solicitor were given leave to withdraw. The plaintiff then continued the trial representing himself for a day until on the morning of the fourth day of the trial the plaintiff’s father wrote to the court requesting that in view of the plaintiff’s difficulties in representing himself the trial be adjourned to allow the plaintiff to obtain legal representation. The trial was therefore adjourned part-heard on 13 May 2003 to be resumed on 11 August 2003. When the trial resumed however the plaintiff had not organised legal representation and he completed the trial representing himself. Whilst the plaintiff was at a disadvantage in being self- represented I am satisfied that he was not deprived of a fair trial and on the evidence before me, particularly the strength of the defence evidence and the plaintiff’s inability to recall exactly how his wrists and hands were held whilst he was on the ground outside the Casino, a finding of fact against the plaintiff was almost inevitable regardless of his lack of legal representation. [34] Evidence did emerge during the trial of a discrepancy between the apparent time of commencement of the surveillance video tendered in evidence and the compilation video tape from which it was copied. A possible inference is that some seconds of footage of the plaintiff in the gaming area prior to being approached by Mr Potter was missing from the tape relied upon by the defendant. The plaintiff believes that the missing footage would support his claim that he was not acting in a disorderly manner in the gaming area. The evidence of the defendant’s witnesses, particularly that of Glen Donald, its surveillance operations manager, satisfies me however, that there is nothing sinister about the discrepancy between the two tapes and that it is highly unlikely that the plaintiff’s behaviour in the gaming room prior to being approached by Mr Potter was recorded on tape. Quantum [35] Had I been able to make findings with respect to the question of liability in the plaintiff’s favour then the following facts and findings are relevant:- 1. The plaintiff was born on 12 May 1963 and is now 40 years of age. He was 37 in December 2000. 2. The plaintiff’s occupation in December 2000 was as a fitter of skylights, venetians, verticals, awnings and security screens both as a contractor for a building company operated by his parents and in relation to his own security screen business. 3. On the Monday following the incident at the Casino the plaintiff finished off the fitting of a skylight but then took “two to three weeks off work” because of the pain in his wrists. -- 9 of 10 -- 10 4. For three months following the incident the plaintiff experienced numbness and throbbing in his wrists and a burning sensation in his hands and a minor amount of pain inside his wrists. 5. After a three to four month period the plaintiff gradually started to get feeling back into his fingers which are now almost back to normal although he has a slight “delayed feeling which makes me a bit clumsy”. The plaintiff continues to experience intermittent tingling sensations mainly in his left hand. 6. The plaintiff experienced increasingly intense pain in his wrists from early in 2002 until he quit his work as a contractor in August 2002. 7. The thrust of the medical evidence is that the plaintiff’s current symptoms are most likely attributable to the physical demands of his occupation and that the plaintiff was suffering some degree of tenosynovitis and/or carpel tunnel syndrome prior to the incident. The plaintiff’s general damages for pain and suffering and loss of amenities should therefore be limited to a period of three months following the incident. 8. The plaintiff would be entitled to damages for economic loss for the three weeks that he was unable to work immediately following the incident. 9. I would assess quantum for pain and suffering and loss of amenities at $5,000. For loss of earnings at $1,608.75 (3 weeks x $536.25 per week) and special damages (medical expenses) at $1,314.65. 10. The evidence does not support an award for damages for other loss of earnings or for future loss of income. 11. There is no evidence to support the plaintiff’s claim for aggravated and/or exemplary damages. [36] Accordingly, the plaintiff’s claim is dismissed and I order that the plaintiff pay the defendant’s costs of defending this action including any reserved costs, if any, to be assessed. -- 10 of 10 --