Burke v State of Queensland[2013] QDC 186

DISTRICT COURT OF QUEENSLAND

The Claims

1. [1]
   Dominic Burke claims damages for alleged wrongful assault and battery, negligence and/or deprivation of liberty by a number of on-duty Queensland police officers. Burke says that:

1. (a)
   on September 16, 2007, he was punched to the face or pushed or tackled to the ground by Snr Const Price;
2. (b)
   on September 17, 2010 he was assaulted by Price and Snr Const Harris, after which he was taken to the watch-house;
3. (c)
   as a result, he suffered a fractured nose, damaged teeth, cuts, bruises and a psychiatric disorder; and
4. (d)
   he is entitled to damages of $217,662.80.

Background 

2. [2]
   Just before 4:00am on Sunday September 16, 2007, Burke (who was intoxicated) was arrested by Price in Ann Street, Fortitude Valley, Brisbane for public nuisance (urinating in a laneway). Burke then ran away from Price. After only a few metres, he was stopped by a man standing in a nearby taxi queue. Price then handcuffed Burke and stood with him on the footpath to await the arrival of a paddy wagon. Shortly afterwards, as more police were arriving, Burke ran away again. He ran across the 4 lanes of oncoming traffic in Ann Street and into a dimly-lit laneway beside The Beat Nightclub. Price and other police officers (who were in the vicinity) chased after Burke. Unbeknown to Burke or Price, the laneway doglegged to the right after about 40 metres and later reached a dead end. Price apprehended Burke just past the dogleg. The events which then occurred are disputed and are discussed further below. There is no dispute that Burke sustained a fractured nose whilst being apprehended.

3. [3]
   About 3 years later, having commenced proceedings for damages against Price and State of Queensland, Burke made arrangements to serve Price with the court process. On Friday September 17, 2010, Burke went to the Charlotte Street Police Station in Brisbane and served Price. Price had previously alerted Harris (who wanted to speak with Burke about another incident in which Burke was suspected of unlawful assault) that Burke would be at the station at that time. Harris then spoke with Burke. Again, the events which then occurred are disputed and are discussed further below. Burke was then arrested by Harris, handcuffed and taken to the watch-house.

The 2007 incident

4. [4]
   Burke says that Price king-hit him in the laneway. He gave slightly different accounts (both before and at the trial) of the events and of which police officers were present at the time. I will proceed on the basis of his version that when he realised that the laneway came to a dead end, he stopped running and went down to his knees. Price then caught up with him and with a closed fist, deliberately punched him hard to his face, fracturing his nose and causing him to fall forwards onto his face.

5. [5]
   CCTV was operating in Ann Street at the time of these events. It shows Burke running away from Price, across the Ann Street traffic and into the laneway. It shows Price and other officers in pursuit. Burke ran into the laneway just as Price ran from the street onto the footpath about 4 metres behind him. Snr Const Rankin (who has since left the police service) was about 2 seconds after Price. Other officers followed in the next few seconds. Price would have been only about 5 metres behind Burke as they ran down the laneway. Rankin was probably another 10 metres further back. Price said that Burke looked back as he ran around the dogleg and slowed down. Price then push-tackled the still-running Burke to the ground and into the side of a parked car. Price denied punching and assaulting or deliberately injuring Burke. Rankin said that he had Burke and Price in sight as they rounded the dogleg and then saw Price tackle Burke.

6. [6]
   Having regard to the speed at which the men were running, it was impossible, in my opinion, for Burke to have come to a complete stop and then dropped to his knees before Price caught up with him. I do not accept Burke’s evidence about that and I reject his evidence that Price punched him.

7. [7]
   I accept the evidence of Price and Rankin. They were impressive witnesses. Although Rankin later thought that the laneway doglegged to the left (it actually doglegged to the right), I do not regard that as negatively impacting upon the clear account that he gave of seeing Price tackle Burke. Price’s evidence was also clear and convincing. In my view, Price and Rankin were witnesses of truth.

8. [8]
   Burke also alleges, in the alternative, that Price “pushed or tackled” him to the ground. That, of course, is inconsistent with Burke’s version that Price punched him. But a party is permitted to plead inconsistent and alternative versions of a claim. Price admits that he did push-tackle Burke to the ground.

9. [9]
   Burke says that Price and State of Queensland were negligent in various respects. Essentially, as Burke submitted, the allegations were that (a) it was unnecessarily risky to attempt to tackle him, in order to seize him, when a tackle would lead to an unprotected fall, and (b) Price should have been trained in relation to the scenario of a handcuffed offender fleeing on foot.

10. [10]
    Snr Sgt Hayden, an experienced instructor at the Queensland Police Academy, gave evidence that in his opinion, Price’s response in tackling the handcuffed Burke was the most appropriate and reasonable action that could have been taken, even though there was a risk of injury to Burke—given that Burke had run away from police on 2 occasions and had given no indication that he was willing to stop or to co-operate with police. Hayden regarded Price’s actions in the circumstances to be in accordance with correct police training. I found Hayden to be an impressive witness and I accept his evidence. There was no contrary evidence.

11. [11]
    I reject Burke’s allegations of negligence. I also find that Price acted appropriately in arresting, pursuing and ultimately tackling Burke.

12. [12]
    In any event, section 45(1) of the Civil Liability Act 2003 (CLA) prevents any award of damages for negligence to a person who is harmed whilst committing an indictable offence—relevantly here, escaping from lawful custody. Section 45(2) however, permits an award of damages if the section 45(1) exclusion would operate “harshly and unjustly”.

13. [13]
    Burke submitted that section 45(1) would so operate because he was under arrest for a nuisance offence and the legitimate purpose of effecting his recapture did not outweigh the substantial risk of injury involved in that exercise. That submission effectively restated one of Burke’s rejected submissions about negligence, whereas section 45(2) is directed towards the effect upon the injured offender of the damages exclusion.

14. [14]
    The Defendants submitted that given (a) the minimal damages which could be awarded to Burke, it could not be said that the removal of damages would be harsh, and (b) Burke’s deliberate decision to flee from police on 2 separate occasions, it could not be said that the exclusion would operate unjustly.

15. [15]
    Having regard to the Defendants’ submissions and in the absence of any evidence by Burke that (and how) the exclusion would operate upon him in a harsh and unjust way, I am not satisfied that this is an appropriate case for the section 45(2) exception to apply.

The 2010 incident

16. [16]
    Burke says that after discussing a matter with Harris, he went to leave the police station but was arrested by being grabbed by Harris on the right arm. Price then assisted Harris to hold Burke and force him to the floor. He was held by them until transferred to the watch-house.

17. [17]
    At the time of the incident at the police station, Harris was interviewing Burke about an alleged assault at the Iceworks Restaurant & Bar at Paddington, Brisbane on Melbourne Cup Day 2009. Harris suspected Burke of assaulting people there. Harris asked Burke for his address, which Burke supplied. It was different from Burke’s address that Harris had seen on the documents that Burke had just given to Price. Burke denied to Harris that he lived at a different address. Harris then asked Burke to go upstairs with him so that Harris could prepare and give him a notice to appear. Burke said that he would not do so and had other business. As Burke then went to leave the police station and the electronic front doors were opening, Harris placed his hand on Burke’s right forearm and told him that he was under arrest for assault “for the purpose of the investigation and further questioning.”

18. [18]
    Section 365(2) of the Police Powers and Responsibilities Act 2000 (PPRA) lawfully authorises a police officer, without warrant, to arrest a person whom the officer reasonably suspects of committing an indictable offence (for example, assault), for questioning the person about the offence or investigating the offence. They were the 2 reasons that Harris gave Burke at the time of his arrest. Harris was also concerned about the accuracy of the address that Burke gave him and that Burke would not accompany him for the notice to appear.

19. [19]
    Burke submitted that the question of whether he was lawfully arrested was one of fact—namely whether the arrest was effected for the stated purpose. I agree.

20. [20]
    Harris gave evidence that he “had hoped to be able to interview Mr Burke in regards to the assault” and that he “didn’t expect that that was the reaction that I was going to get” (T 5-44: L 29-31). That strongly suggests that Burke’s responses and behaviour at the police station caused Harris to conclude that he was lawfully authorised to arrest Burke for the purposes of further investigating and questioning him about the 2009 assault—which Harris intended to do. Burke’s submissions disputed whether Harris really did effect the arrest for the stated reasons. But Harris was not cross-examined about that and I do not see any basis upon which Burke’s submission could be upheld or Harris’ evidence doubted.

21. [21]
    I accept Harris’ evidence and find that his arrest of Burke was lawful.

22. [22]
    As Burke’s arrest was lawful, so too was his subsequent detention in police custody at the station and then at the watch-house: see PPRA, sections 391(3), 403. I did not understand Burke to dispute that. Burke’s allegations of assault (said to be his “initial seizing” by Harris and Price when he struggled after being arrested and had to be restrained and hand-cuffed) and deprivation of liberty (presumably, his detention at the police station and later at the watch-house) cannot be maintained. These claims are dismissed.

Contributory negligence

23. [23]
    Burke was intoxicated at the time of the 2007 incident. Section 47(2) of the CLA presumes that an intoxicated person who suffers harm from a breach of duty is at least 25% contributorily negligent. Sections 23 and 24 of the CLA permit reductions of up to 100% for contributory negligence if an injured person failed to take reasonable precautions against the risk of suffering harm and the Court considers it just and equitable to do so. In my opinion, Burke so failed by fleeing, handcuffed, from Price in circumstances where he knew or ought to have known that it was likely that he would be pursued and re-apprehended with the use of reasonable force—which involved the risk of injury to him.

24. [24]
    The Defendants submitted that taking account of Burke’s intoxication and his deliberate decision to flee from custody without regard for his own safety, a reduction of 100% on account of contributory negligence was appropriate. Burke’s submissions did not address that point.

25. [25]
    Having considered all of the circumstances of this case, I have come to the conclusion that it is just and equitable that because of Burke’s own actions, his damages (if awardable) should be reduced by 100%.

Quantum

26. [26]
    Although I have rejected all of Burke’s allegations of assault and battery, negligence and deprivation of liberty, it is appropriate that I consider the quantum of damages that might otherwise have been awarded.

27. [27]
    Burke claims the following damages:

D109/10

Pain, suffering & loss of the amenities of life$8,600.00

Special damages$3,112.80

Damages for trespass to person$10,000.00

Aggravated damages$30,000.00

Exemplary damages$30,000.00

 $81,712.80

D25/13

Pain, suffering & loss of the amenities of life$12,950.00

Economic loss$90,000.00

Future expenses$3,000.00

Deprivation of liberty$30,000.00

 $135,950.00

28. [28]
    Thus the total amount claimed is $217,622.80 ($81,712.80 + $135,950.00). Burke initially claimed $1,595,808.32 but abandoned that part of his claims which exceeded this Court’s jurisdictional limit of $750,000. During final submissions, Burke reduced his claim even further to $217,622.80.

29. [29]
    Burke sustained a fractured nose (which required surgery) in the 2007 incident. He says that he also suffered a dental injury and a psychiatric injury. But there was no objective evidence before the Court supporting the dental injury and Burke made no submissions about that. That claim must be taken to have been abandoned. Burke’s alleged injuries in the 2010 incident are limited to a psychiatric injury. Two psychiatrists gave evidence at the trial. Both Dr Lockwood and Dr Larder agreed that (a) Burke had a longstanding pre-existing psychiatric condition due to alcohol abuse and depression, and (b) that condition had been exacerbated by the incidents. However, under cross-examination, Dr Lockwood conceded that she was unaware of some “information … of great interest and relevance” about Burke’s employment and medical history—and that as a result, she could not then express an opinion as to any sort of impairment attributable to the 2007 and 2010 incidents without a further formal interview with him. Burke submitted that that concession only meant that the issue of causation was “difficult”. That submission grossly understates the thrust and significance of the concession, in my opinion. Dr Larder’s view was that there were a number of stressors (which included the 2007 and 2010 incidents) impacting upon Burke’s psychiatric condition and that it was “not possible” for him to “state with any percentage certainty that one [stressor] is any more significant than the other.”

30. [30]
    Given Dr Lockwood’s quite proper concession and Dr Larder’s assessment of multiple causation, I accept the Defendants’ submission that the most appropriate approach is to proceed on the basis that Burke suffered a minor aggravation or exacerbation of his pre-existing psychiatric condition as a result of the 2007 and 2010 incidents.

31. [31]
    General damages: Under the Civil Liability Regulation 2003, a minor (item 13) to moderate (item 12) mental disorder results in an award of between $1,180 and $12,950. In my opinion, the award should be $5,900 (an ISV of 5). A moderate facial injury such as a displaced nasal fracture (item 16) results in an award of between $6,200 and $15,200. In my opinion, the award should be $8,600 (an ISV of 8).

32. [32]
    Special damages: Burke seeks $3,112.80 for this and the Defendants do not suggest that it is excessive. I would allow the amount claimed.

33. [33]
    Future expenses: Dr Larder recommended future psychiatric treatment, costed at $8,500. I accept Burke’s submission that given the apportionment issues, he should be allowed $3,000 in respect of this claim.

34. [34]
    Aggravated & exemplary damages: Pursuant to section 52 of the CLA, the Court cannot award exemplary, punitive or aggravated damages unless it is satisfied that the act that caused the personal injury was an unlawful intentional act done with intent to cause personal injury. I am not satisfied that any of Burke’s injuries were caused by any such intentional act. No award for these damages is appropriate.

35. [35]
    Damage for intentional trespass & deprivation of liberty: These damages were not claimed in Burke’s statements of claim. No award for these damages can be made.

36. [36]
    Economic loss: Burke conceded in cross-examination that neither the 2007 incident nor the 2010 incident prevented him from returning to work. That is consistent with Dr Larder’s opinion that neither of those incidents materially affected Burke’s capacity for employment. These very compelling points were not addressed in Burke’s submissions. In the circumstances, an award of damages for economic loss has not been demonstrated to be appropriate.

37. [37]
    Conclusions on quantum: If Burke had succeeded completely on the question of liability, I would have awarded him damages of $20,612.80, as follows:

General damages$14,500.00

Special damages$3,112.80

Future expenses$3,000.00

Aggravated & exemplary damagesnil

Intentional trespass & deprivation of liberty damagesnil

Economic lossnil

 $20,612.80

Disposition

38. [38]
    Burke’s claims are dismissed, with costs.