Mitchell v Reedy[2011] QDC 157

HIS HONOUR: There are cross applications before the Court seeking to attack the pleadings on the other side. Both applications fall to be determined according to the Court's view of some fundamental questions which depend on whether the plaintiffs' claims, the first and second plaintiffs’ in particular, involve personal injury.

It is convenient to adopt a good deal of the defendants' written submissions which identify the proceeding as one for damages against the first defendant, who was a police officer, and the second defendant, which is Queensland, and said to be responsible for the other's actions.

The first and second plaintiffs assert that they were physically assaulted by Mr Reedy on 15 May 2005 in a hotel in Cunnamulla where they say he had been drinking for quite a while and perhaps on top of other drinking elsewhere with consequences that he had drunk too much. Their allegations go on to assert false imprisonment and malicious prosecution. The third plaintiff's claim is merely one for malicious prosecution. He intervened in a melee that was going on, he asserts, in the interests of protecting his daughter and her mother.

Reading from the defendants' outline in paragraph 8, in the amended statement of claim:

"The plaintiffs allege that the first defendant grabbed the first plaintiff by her arms, pulled her hair and placed an arm around her neck, kneed and punched her, grabbed hold of the second plaintiff's hair, dragged the first plaintiff with his arm around her neck and the second plaintiff by the hair, took hold of the second defendant's [sic] shoulder and continued to drag the first plaintiff. Such physical contact and application of force was intentional, was not consented to by the first or second plaintiffs and there was no lawful excuse or justification for such contact and in the premises constituted assault and battery of the first and second plaintiffs.

(9) The first and second plaintiffs claim general, aggravated and exemplary damages for the acts that they allege constituted assault and battery as well as for malicious prosecution.

(10) The allegations of assault and battery are the foundations of the proceedings against the defendants. The plaintiffs must make out the pleaded facts to support the allegations of assault and battery of the first and second plaintiffs, that is, that the first defendant grabbed the first plaintiff and placed an arm round her neck, kneed and punched her and then dragged her with his arm around her neck and grabbed the second plaintiff by her hair and dragged her by her hair.

(11) For such acts to occur without the first and second plaintiffs feeling any pain or sustaining any bruising, hair loss or other manifestation of a personal injury, belies belief.

(12) To assert that the claim of assault and battery as pleaded can be maintained otherwise is no more than an attempt to circumvent the mandatory requirements of the Personal Injuries Proceedings Act."

That Act applies to all personal injury arising out of an incident whether happening before, on or after its commencement on 18 June 2002. It is common ground that the mandatory pre-litigation procedures established by the Act have not been gone through at all here. If the Act applies, the whole proceeding should not have been commenced: s 9.

The issue in this regard is whether the plaintiffs' claim relevantly involves “personal injury”, which in the PIPA, as it is called, is not exhaustively defined but the subject of an inclusive definition bringing in fatal injury, prenatal injury, psychological or psychiatric injury and disease.

I do not understand the defendants to assert that there is psychological or psychiatric injury relied on as part of any plaintiff's case here. They rely on a more general understanding of personal injury and injury in particular.

Mr Diehm SC suggested that there is an injury whenever there is any alteration, however minor or transient, of the state of a person's body. He was unable to point to any legal or dictionary definition of injury to that effect. The written outline in paragraph 15 underlines the point he was making. "'Personal injury' must include the ordinary meaning of personal injury such as personal injury which would inevitably be sustained in an assault and battery such as alleged by the plaintiffs."

The plaintiffs’ assertions, based on authorities such as Vattiato v. Lagama [1992] 1 Qd R. 234, is that injury or damage is no part of battery. A fortiori, it is no part so far as an assault is concerned, assault technically being the threat preparatory to potential battery.

The point of the defendants' submissions becomes clear on referring to the Court of Appeal's decision in Coffey v. Queensland [2010] QCA 291. It arose out of similar circumstances to the present ones and the self-represented plaintiff's taking issue with the way in which hair samples for DNA analysis were taken from him while he was serving a term of imprisonment without his consent.

His claims were not for damages for personal injury but rather based on the assault, as I understand it, for which he claimed general damages, exemplary damages and aggravated damages, much as the relevant plaintiffs seek here. Ms Morreau representing them conceded that their statement of claim had been drawn and settled with the outcome in Coffey, which was unfavourable to the plaintiff, in mind.

The defendants' outline, accurately enough, shows the effect of the allegations in the statement of claim, are the high water mark of which is in clause 30 for the first plaintiff and paragraph 31 for the second plaintiff. Paragraph 48 takes up the story in respect of the first plaintiff, paragraph 51 in respect of the second plaintiff. By reason of the acts earlier pleaded, each is said to have "suffered deprivation of liberty, outrage, humiliation, indignity, anxiety and distress for which she is entitled to general damages apart from the aggravated and exemplary damages also sought."

It will have been noted from what I have said that the defendants rely on an assumption that personal injury occurred. There is no assertion to that effect in the pleading and here is the distinction which Ms Morreau relies on so far as Coffey, whose authority is accepted by both sides, is concerned.

In paragraph [7] of Fraser JA's reasons, one reads, "The plaintiff alleges that on 5th March 2001 whilst the plaintiff was serving a term of imprisonment, the second defendant or his agents 'assaulted and took an excessive number of hairs from him, attacked the plaintiff without warning, forced his arms behind his back, violently pushed him face first into a window, handcuffed him,' escorted him to a named place and there 'forced the plaintiff's wrists painfully against the handcuffs, threw the plaintiff violently onto the floor and kicked and stood on the plaintiff while he was on the floor causing Agent Smith to observe that the plaintiff had passed out and was hyperventilating and on four separate occasions pulled between 110 and 170 hairs from the plaintiff's head as he lay bleeding on the floor pinned down by the three agents.' The second defendant being 'at best only authorised to take between 10 and 12 hairs from the plaintiff's body' for the purpose of taking a DNA sample."

In paragraph [8], his Honour states that "The pleading expressly refers to the earlier allegations that the plaintiff's wrists were forced painfully against the handcuffs, that he had passed out and was hyperventilating and that an excessive number of hairs were pulled from his head as he lay bleeding on the floor."

Paragraph [9] records that the pleading also alleged that, as a result of the malicious prosecution, the plaintiff had suffered "insult [discomfort], humiliation, frustration, anger and costs."

Paragraph [23] in the reasons underlines what I regard as significant and crucial differences in the present plaintiff's situation: the plaintiff argued that he did not plead any claim for damages for personal injury damages but his general damages claim against the second defendant unequivocally refers to and relies upon his allegations that, as a result of assaults by the second defendant or his agents, the plaintiff suffered pain, lost consciousness, hyperventilated and lost numerous hairs forcibly taken from his head as he lay bleeding on the floor. Those pleaded bases of claim resulted from or themselves constituted personal injuries as is reflected in the plaintiff's own characterisation of his general damages claim as being for 'violation of his person'. To that extent, the plaintiff's claim for general damages against the first and second defendants is therefore a claim for 'personal injury damages'. It is not to the point that, as the plaintiff argued, false imprisonment, malicious prosecution and assault do not themselves constitute personal injuries. Because the plaintiff claimed damages for personal injuries against the second defendant, his proceeding fell within section 73. Contrary to one of the plaintiff's arguments, this is not merely a technical point which might be cured by a minor amendment. Those personal injury claims, particularly including the pleaded allegation that the second defendant or his agents forcibly removed an excessive number of hairs from the plaintiff's head, appear to be at the very heart of this proceeding against the first and second defendants."

The difficulty for Coffey was his inability to separate out personal injuries aspects from his claims. As Douglas J at first instance and the Court of Appeal approached the matter, once that personal injury aspect intrudes, even if in respect of parts of the claim only, a plaintiff is caught by the provisions of legislation treating proceedings arising out of personal injury in special ways.

In paragraph [11], Fraser JA said, "The primary Judge analysed the plaintiff's claim and his fourth amended statement of claim and concluded that the proceeding was based on a claim for personal injury damages, although it may also be based on a claimed assault. A proceeding claiming damages for personal injury was based on that claim, although it was also based on a claim for general, aggravated and exemplary damages for assault. Whilst the plaintiff did not explicitly claim damages for the personal injuries that he suffered, he did claim general, aggravated and exemplary damages in circumstances where those personal injuries were pleaded as matters relevant at least to the existence of aggravated and exemplary damages. The primary judge concluded that adopting a purposive approach to the construction of section 33 [of the Civil Liability Act 2003 (Queensland)] it would not be appropriate to circumvent its prohibition on jury trials in actions of this nature by allowing a party to plead the fact of his having suffered personal injuries and claim damages, at least partly related to those injuries, by reference to their aggravating effect on a claim for damages for assault independent of the personal injuries."

The plaintiff's pleaders in this proceeding have been astute not to plead the fact of personal injuries being suffered if any were. I am not prepared and I do not think it would be appropriate in this application to proceed on the basis urged by the defendants that the first and second plaintiffs must have sustained personal injury.

From the last quotation from Coffey, the relevance of entitlement to request a trial by jury appears. The plaintiffs seek trial by jury under rule 472 which does not apply if trial by jury is excluded by an Act. Section 73 does establish such an exclusion. The section provides, "A proceeding in a court based on a claim for personal injury damages must be decided by the court sitting without a jury."

In the schedule definitions, personal injury is defined in a similar way to the PIPA definition, personal injury damages to mean "damages that relate to the death of or injury to a person" and claim to mean "a claim however described for damages based on a liability for personal injury...whether that liability is based in tort in contract or in another form of action including a breach of statutory duty" and injury means "personal injury". The PIPA definition of claim is, in practical effect, the same. In Coffey, the breadth of the expression ‘relate to’ was noted in paragraph [27], which goes on to reveal the distinction between Mr Coffey and the present plaintiffs, who do not claim any damages ‘with reference to a tort which is alleged to have caused personal injuries’. (italics added)

The Civil Liability Act is of relevance in another way which provides a basis for part of the defendants' attack on the amended statement of claim. That is section 52(1) which provides that "a Court cannot award exemplary, punitive or aggravated damages in relation to a claim for personal injury damages."

Yet another Act referred to is the Limitation of Actions Act 1974. It deals with actions in respect of personal injury in a special way in section 11, establishing a three year limitation period which the plaintiffs have not met, their claim not being filed till 16 February this year.

The general limitation period, apart from those special cases where other periods such as 12 years are allowed, is six years, which the plaintiffs by a fairly narrow margin have been able to satisfy. To the extent that discretionary considerations might become relevant, the limitations considerations may come into play. As Mr Diehm SC admitted, there is no pleading of the limitation period by his clients initially. That may permit assertions that the point has been waived at some time in the future if, indeed, the limitation period is the three year one.

My view is strongly to the contrary as I think that, relevantly, the proceeding has nothing to do with personal injury. The plaintiffs have the advantage of being in a position to plead a case without asserting personal injury and, in my view, they have done it.

I take it the consequence of the Court taking that view is that the impugned paragraphs of the amended defence which raised the PIPA point and the two Civil Liability Act points - one concerning the jury aspect - succeed and that the defendants' cross application attacking various paragraphs of the amended statement of claim fails.

Pursuant to rule 375, Ms Morreau asked appropriately that her application be regarded as amended to refer to the relevant paragraphs of the amended defence as the filed application was based on the original defence.

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HIS HONOUR: I will just cross out "on an indemnity basis", initial that, and order as per initialled draft. The other authority that I think I ought to notice, if only for my own possible assistance on a future occasion, is Bayliss v. Cassidy, in particular, the decisions of Helman J on 10 March 1997, BC9705112, and Muir J of 18 September 1998, BC9804723, the proceeding being 4786 of 1988. Their Honours took the same view in relation to "personal injury" in a limitations context.

Consistently with that view, what the plaintiffs plead regarding anxiety, distress and the like does not amount to personal injury. Muir J, at page 43 of his reasons, referred to the definition of personal injury in section 5 of the Act as including a disease and an impairment of a person's physical or mental condition and said, "The plaintiff's claim, properly understood, is not that he suffered from any recognisable psychiatric illness as a result of the matters alleged in the statement of claim. The emotions alleged by

him are normal responses of a person with an unimpaired mental condition. They do not constitute or evidence an impaired physical or mental condition. The law has not tended to regard such matters as falling within the scope of physical injury or personal injuries." His Honour went on to cite authorities, including Mount Isa Mines Limited v. Pusey [1971] 125 CLR 383 at 394.