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Dienaar v Austernin[2018] QDC 262

DISTRICT COURT OF QUEENSLAND

CITATION:

Dienaar v Austernin & Anor [2018] QDC 262

PARTIES:

ROLPH JAMES CORNELIUS DIENAAR

(plaintiff)

v

HERMAN AUSTERNIN

(first defendant)

and

STATE OF QUEENSLAND

(second defendant)

FILE NO/S:

BD 974/2011

DIVISION:

PROCEEDING:

Civil Trial

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

13 December 2018

DELIVERED AT:

Brisbane

HEARING DATE:

24, 25 and 26 October and 3 November 2016

JUDGE:

Andrews SC DCJ

ORDER:

The plaintiff’s claim is dismissed

Judgment for the defendants against the plaintiff

Liberty to apply in respect of costs

CATCHWORDS:

TORTS – MALICIOUS PROCEDURE AND FALSE IMPRISONMENT - FALSE IMPRISONMENT – whether defence under section 69 of the Domestic and Family Violence Protection Act 1989 (repealed) – where police officer responded to 000 call that a male and female had been heard fighting a child heard screaming and a male heard yelling a death threat – where upon arrival the whereabouts of the female and child were unknown to the police officers – where the plaintiff said he had a domestic and threw hot water on his partner – where the plaintiff advised that they went to the doctor and he did not know to whom – where 10.15pm on a Sunday – where a police officer detained the plaintiff – whether the police officer then had “reasonable grounds for suspecting” that either the female or the child was a person “in danger of physical injury” by the plaintiff

TORTS – BATTERY – whether defence under section 69 of the Domestic and Family Violence Protection Act 1989 (repealed) – where police officer intended to manoeuvre the plaintiff to the ground for handcuffing the plaintiff’s wrist – where the police officer lost control of the manoeuvre – where the plaintiff was propelled to the ground – whether the officer then used only “such force as is reasonable and necessary” – whether police officer’s conduct constituted battery

TORTS – FALSE IMPRISONMENT – DAMAGES – AGGRAVATED DAMAGES – assessment of damage

TORTS – BATTERY – DAMAGES – assessment of damage

Domestic and Family Violence Protection Act 1989 (Qld) (repealed), s 69

Civil Liability Act 2003 (Qld)

Bulsey & Anor v State of Queensland [2015] QCA 187 at [4]

Coleman v Kinbacher & Anor (Qld Police) [2003] QCA 575 at [31] and [32]

Ferguson v State of Queensland & Anor [2007] QSC 322 at [13] – [15]

Grosse v Purvis [2003] QDC 151 at [446]

Hamilton v State of New South Wales (No.13) [2016] NSWSC 1311

Lewin v Button [1996] QCA 073

Misel v Teese [1942] VLR 69 at 72.

COUNSEL:

Stobie for the plaintiff

Sorbello for the first and second defendants

SOLICITORS:

McNamara & Associates for the plaintiff

Crown Law for the first and second defendants

TABLE OF CONTENTS

Background4

Issues4

Section 69 of the Domestic and Family Violence Protection Act 1989 (repealed)5

Reliability of the evidence6

Assessing Credit – the Constables8

Assessing Credit - the Plaintiff13

Events prior to the Constables’ attending the dwelling15

Entry into the dwelling and a threat to use force on the door16

Plaintiff’s disclosures to the constables about his absent family19

The evidence of battery21

Analysis of the contentious evidence of battery27

First issue: Did Constable Austernin then have reasonable grounds for suspecting that the absent woman or child was in danger of personal injury?30

Second issue: Did Constable Austernin throw the plaintiff to the floor?32

Third Issue: Was Constable Austernin then using only “such force as is reasonable and necessary”?32

Fourth issue: Did Constable Austernin falsely imprison the plaintiff?33

Fifth issue: Did Constable Austernin commit battery taking the plaintiff to the floor?33

Sixth issue: Did the plaintiff’s fracture occur when the plaintiff was taken to the floor by Constable Austernin?33

Seventh issue: Causation of the plaintiff’s injuries.34

Eighth issue: Quantum of damage for personal injuries.38

Ninth issue: Quantum of aggravated damage and damage for deprivation of liberty.40

Background

  1. [1]
    On 30 March 2008, late in the evening, Constable Austernin was responding to a 000 call alleging that someone had heard:
  1. a male and female fighting;
  1. a child screaming; and
  1. a male yelling a death threat.
  1. [2]
    Constable Austernin attended the address. A male, the plaintiff, was there. After a cursory search of the house, the plaintiff appeared to be alone. It was 10.15pm on a Sunday. The plaintiff said he had poured boiling water on his partner. His partner and their child were not in the house. The plaintiff said they had gone to the doctor but he did not know to whom. Any police officer who then had “reasonable grounds for suspecting” that “a person is in danger of personal injury” by a respondent, may “take the respondent into custody”.[1] In the course of being taken into custody the plaintiff landed on the floor. The plaintiff was taken to the watch house. After his release his left wrist was found to be broken. The plaintiff was unfit to take up a work opportunity in the Peoples Republic of China. He claims damages for personal injuries for battery and damages for deprivation of liberty including aggravated damages.

Issues

  1. [3]
    First issue: Did Constable Austernin then have reasonable grounds for suspecting that the absent woman or child was in danger of personal injury? The constable bears the onus of proof that he had reasonable grounds.
  1. [4]
    When taking the plaintiff into custody, Constable Austernin was entitled to use “such force as is reasonably necessary”. Constable Austernin placed a handcuff on one of the plaintiff’s wrists. The plaintiff soon fell or was thrown to the floor. Either way, the constable would have committed the tort of battery and be liable in damages unless he is excused by Section 69 of the Domestic and Family Violence Protection Act 1989 (repealed) (the Act).
  1. [5]
    Second issue: Did Constable Austernin throw the plaintiff to the floor? Or did the plaintiff fall to the floor in the course of resisting the constable’s placing a second handcuff on him?
  1. [6]
    Third Issue: Was Constable Austernin then using only “such force as is reasonable and necessary”? The relevant time in issue for assessing the use of force was when the plaintiff’s wrist was fractured.
  1. [7]
    Constable Austernin bears the onus of proof that he was using only such force as was reasonable and necessary.
  1. [8]
    Constable Austernin completed handcuffing the plaintiff on the floor then lifted the plaintiff off the floor, walked him to the police car and took him to the police watch house.
  1. [9]
    Fourth issue: Did Constable Austernin falsely imprison the plaintiff? Constable Austernin would have falsely imprisoned the plaintiff unless he satisfies his onus on the first issue.
  1. [10]
    Fifth issue: Did Constable Austernin commit battery when taking the plaintiff to the floor? Constable Austernin’s actions would constitute the tort of battery unless he satisfies his onus on the third issue.
  1. [11]
    Sometime during 30 March or 1 April 2008 the plaintiff sustained a fracture of the radius of his left arm. The plaintiff initially attributed his fracture to being lifted by the handcuffs or to the handcuffs’ being too tight. The plaintiff commenced this proceeding in 2011. The statement of claim alleged that the fracture was caused by Constable Austernin’s lifting the plaintiff by the handcuffs[2] but not to his falling or being thrown to the floor.  After the proceeding commenced medical opinions were obtained which identified that such a fracture is typically caused by falling onto the floor with an outstretched left hand. After this mechanism was identified as the typical cause, the plaintiff amended his statement of claim in 2014 to include being thrown to the floor as one of 3 actions causing his injuries.[3] At trial, the plaintiff amended his case to allege[4] that any one of the 3 actions caused his injuries. But at trial, in his own evidence the plaintiff attributed his fracture to one cause, his fall to the floor and that is the mechanism submitted by his counsel to have been the cause of the fracture.
  1. [12]
    Sixth issue: Did the plaintiff’s fracture occur when the plaintiff was taken to the floor by Constable Austernin? Or was it at some other time during the day or night? The plaintiff bears the onus that it occurred when he was taken to the floor.
  1. [13]
    Seventh issue: Causation of the plaintiff’s injuries. The plaintiff has since lost income and suffered depression, anxiety and possibly a post-traumatic stress disorder. The seventh issue is whether the loss and these injuries have been caused by the constable’s actions.
  1. [14]
    Eighth issue: Quantum of damage for personal injuries.
  1. [15]
    Ninth issue: Quantum of aggravated damage and damage for deprivation of liberty. Awards may be due if the constable was not entitled to take the plaintiff into custody. The plaintiff’s entitlement to aggravated damages and for damages for deprivation of liberty is dependent upon his succeeding on the fourth issue, namely that he was falsely imprisoned. The plaintiff submits that the quantum for deprivation of liberty, including aggravated damages is $20,000.[5]
  1. [16]
    After hearing the evidence, the plaintiff abandoned his case for damages for negligence and his case for damages for assault. There was little or no evidence to support a submission of negligence. The plaintiff maintains his stronger case for damages for personal injuries arising from the tort of battery and for damages for deprivation of liberty. It is stronger than the case based upon negligence because there was prima facie the tort of battery and the defendants bear the onus of proof that the battery was justified.

Section 69 of the Domestic and Family Violence Protection Act 1989 (repealed)

  1. [17]
    Battery is any act of a defendant which, either intentionally or negligently causes some physical contact with the plaintiff without the plaintiff’s consent.[6] The defendants concede that by apprehending, handcuffing and transporting the plaintiff to the Ipswich watch house and keeping him there for several hours, there is prima facie evidence of battery and unlawful deprivation of liberty. That concession is consistent with authority.[7] The defendants rely on section 69 of the Act as justifying Constable Austernin’s actions.
  1. [18]
    Section 69 of the Act conditionally authorised arrest and battery at the relevant dates in March 2008. A suspect could be detained for a maximum of four hours. The section provided, so far as is relevant to the issues in this proceeding:

69 Presence at domestic violence incident

  1. (1)
    A police officer who has reasonable grounds for suspecting that an act of domestic violence has been committed and—
  1. (a)
    a person is in danger of personal injury by a respondent;

… may take the respondent into custody using such force as is reasonable and necessary.

  1. [19]
    The plaintiff concedes that Constable Austernin had reasonable grounds for suspecting that an act of domestic violence had been committed. That suspicion is one element which the defendants are required to establish to justify taking the plaintiff into custody. An element in issue is whether the constable had reasonable grounds for suspecting that a person was then in danger of personal injury by the plaintiff. It is the first issue set out more fully above.

Reliability of the evidence

  1. [20]
    There were three primary witnesses to the crucial battery, being the plaintiff and two constables. The evidence included their oral evidence given at trial and records of statements they made eight years before. Honest witnesses may be unreliable. The reliability of the memories of three primary witnesses is affected by the passing of eight years.
  1. [21]
    The events occurred in March 2008. The evidence was given in 2016. The memories of the plaintiff and the constables at trial were likely to be less reliable than their memories soon after the events. The long delay between 2008 and trial causes me significant doubt about the reliability of their memories at trial. There were two investigations in 2008 arising out of the events of 30 March 2008. Those investigations resulted in more contemporaneous evidence than the oral evidence at trial. Some more contemporaneous statements were tendered by the plaintiff.

On 11 June 2008 the plaintiff was prosecuted for an offence of obstruct police, alleged to have been committed by him on 30 March 2008.  The charge was dismissed.  A QP9 form was prepared and provided to the prosecutor. The QP9’s summary was prepared by Constable Austernin in 2008, reflected what Constable Austernin understood to be the facts at the time[8] and at trial he still thought the facts in it were completely correct. The plaintiff tendered the QP9 summary after Constable Austernin had confirmed those matters.[9] Constable Austernin prepared a statement on 29 May 2008.[10]    It was tendered by the plaintiff after Constable Austernin gave evidence that he satisfied himself that all the facts in the statement were correct to the best of his recollection.  Constable Campbell prepared a statement on 12 May 2008. The statement of Constable Campbell[11] was reviewed by her a few weeks before she gave evidence in 2016. That statement of Constable Campbell was tendered by the plaintiff. She gave evidence at trial that:

  1. There was nothing in it she wished to change;
  1. If she remembered something in May 2008 she would have put it in that statement;
  1. She could remember less at trial than in May 2008.
  1. [22]
    The plaintiff made a complaint in 2008 about the conduct of Constable Austernin. That led to an investigation in 2008 into the conduct of the constables on the night of 30 March 2008. The complaint was dismissed. But the proceeding led to the recording of some statements or evidence. Part of the transcript[12] of an undated recorded statement by the plaintiff given to Detective Senior Sergeant Trezise was admitted into evidence in the trial in this proceeding after being tendered by the plaintiff. Constable Austernin was interviewed by Detective Senior Sergeant Trezise on 20 November 2008. Some parts of that interview were read to the constable by the plaintiff’s counsel and adopted by Constable Austernin as correct. A video recording was made of the plaintiff and Constable Austernin at the watch house after the plaintiff was detained. These pieces of more contemporaneous evidence have been useful as evidence of the events and for checking consistencies and inconsistencies in the oral evidence given eight years later at trial.
  1. [23]
    Statements given in 2008 were given when memories are likely to have been more reliable. It became clear on the night of 30 March 2008 that the plaintiff was complaining of mistreatment of painful handcuffs and was threatening to have the constables’ badges. By the next day, it became clear that the plaintiff had fractured his wrist at some unknown time. By the time any statement from 2008 was given by the plaintiff or the constables, the maker was aware that the plaintiff had alleged the use of excessive force by at least Constable Austernin. By the time of any recording of answers to questions by Senior Sergeant Trezise, the plaintiff and the constables knew that the plaintiff was claiming that excessive force had caused him personal injury.
  1. [24]
    The plaintiff gave evidence that he thought he had consumed five cans of Jack Daniels, that he was definitely not sober enough to drive but that he was not overly intoxicated. On 6 November 2008 the plaintiff saw Dr Ratnam. The plaintiff told Dr Ratnam that the spilling of hot water onto his wife had been an accident and that they had both been drunk at the time.
  1. [25]
    During the course of his interview in 2008 with Detective Senior Sergeant Trezise, the plaintiff said that he had consumed probably eight, perhaps seven cans of Jack Daniels. Eight years later at trial, the plaintiff claimed that the information he gave to Dr Ratnam about the quantity of alcohol he consumed was incorrect because he had only a six pack.
  1. [26]
    The plaintiff denied in cross examination at trial that he was drunk when the police arrived. He said “I was inebriated, but I wasn’t paralytic. Yeah. I – I had my wits about me.” In March 2008 he was in the habit of smoking marijuana daily. He conceded he had probably smoked it on that day. Constable Campbell recalled that the plaintiff was intoxicated.[13]
  1. [27]
    I am satisfied that the plaintiff was drunk when he poured boiling water on his partner. There is no direct evidence of the time that occurred. His partner was put under a cold shower by her parents next door and then driven on a journey of about 15 minutes to the Ipswich Hospital where she was triaged at 9:29pm. I am satisfied that the plaintiff was just roused from sleep and affected by alcohol when the police entered his home at about 10.15pm on 30 March 2008.
  1. [28]
    The plaintiff’s degree of inebriation at the time of the constables’ visit at 10.15pm on 30 March 2008 probably affected the reliability of his memories of the events of the constables’ visit to his home.
  1. [29]
    Even honest witnesses may unwittingly reconstruct forgotten events and give inaccurate evidence as a result. I have been cautious about accepting evidence of either constable given at trial unless it was consistent with the relevant constable’s earlier documentary evidence tendered by the plaintiff or unless it was left unchallenged by the plaintiff’s counsel in cross-examination or unless it was both consistent with earlier documentary evidence of the relevant constable and unchallenged in cross-examination.

Assessing Credit – the Constables

  1. [30]
    The plaintiff’s counsel submitted that the number of inconsistencies between the evidence of the Constables was too great to be explained by the passage of time.
  1. [31]
    The first inconsistency he isolated was about an alleged threat by Constable Austernin to use force on the plaintiff’s front door if the plaintiff did not open the door.[14]
  1. [32]
    It seems clear from documents from 2008 that:
  1. The plaintiff, Constable Austernin and Constable Campbell each remembered that the plaintiff was not able to initially open the front screen door and was complaining that he could not find the key;
  1. The plaintiff and Constable Austernin each remembered Constable Austernin to have made some kind of threat to either break the front door or force it if the plaintiff could not open it;
  1. The plaintiff and Constable Austernin remembered that the plaintiff then suggested that the back door was open;
  1. Constable Campbell remembered that the plaintiff suggested that the back door was open; and
  1. Each of the three recalled that the Constables went to the back door to enter the dwelling.
  1. [33]
    The inconsistency between the constable’s recollections about whether Constable Austernin threatened to force the front door does not cause me to doubt the credibility or reliability of either of them. I accept the evidence of the plaintiff and Constable Austernin that there was a threat to force the front door. The fact that Constable Campbell did not remember it more than eight years later or record it in her statement in 2008 is unexceptional.
  1. [34]
    There was no express submission about what finding I should make once persuaded that Constable Campbell’s version and Constable Austernin’s were different on this issue. The implied submission may be that I should reject Constable Austernin’s version that he threatened force on the door.[15] I do not reject Constable Austernin’s version that he threatened force on the door. It is consistent with the plaintiff’s version in 2008 and at trial. Alternatively, the implied submission may be that I should find that Constable Campbell is unreliable because she omitted this detail from a statement in 2008.
  1. [35]
    Constable Austernin was the speaker making the threat and the plaintiff was the person threatened and offering a solution. It is plausible that they would each have remembered the conversation because of their personal investments in the confrontation and its resolution. Constable Campbell’s failure to include in her statement one sentence spoken by each man does not assist with the resolution of any issue. Her failure to recall the two sentences eight years later is explicable by the passage of time.
  1. [36]
    The second inconsistency isolated for the plaintiff was really a trio of alleged inconsistencies:
  1. Constable Campbell’s evidence in chief that the plaintiff said his wife had taken their daughter to the doctor was inconsistent with her evidence in cross-examination that it was possible that the plaintiff had said that his wife had gone to the doctor as a result of being hit with hot water;[16]
  1. Inconsistency between Constable Campbell’s evidence that the plaintiff’s daughter was going to a doctor and Constable Austernin’s evidence that the plaintiff’s wife had “gone to find a doctor”[17] or “gone to the doctors”;[18]
  1. Inconsistency between Constable Campbell’s evidence and the note in Constable Austernin’s police notebook[19] that “wife taken to hospital” which Constable Austernin confirmed in cross-examination to have been information given to him by the plaintiff.[20]
  1. [37]
    It was submitted that those inconsistencies should lead to a finding that Constable Campbell’s evidence was given “to exaggerate the issue of uncertainty as to the location of the Plaintiff’s partner”.[21]
  1. [38]
    I reject the submission that Constable Campbell’s evidence that the plaintiff said his daughter was taken to the doctor exaggerated the uncertainty as to the location of his partner or his daughter. The location of the plaintiff’s partner, as described by the plaintiff, was uncertain because the plaintiff did not say which doctor she went to. The location of was equally uncertain whether the plaintiff’s partner was with her daughter or not or whether it was the daughter being taken to the doctor or the partner going to the doctor.
  1. [39]
    The plaintiff submitted that Constable Campbell’s failure, in evidence in chief, to mention the possibility that the plaintiff had said that his wife had gone to the doctor as a result of being hit by hot water “is telling”. I am unsure what inference the plaintiff urges. I see from Constable Campbell’s statement made on 12 May 2008[22] at paragraph 7, set out above, that she then made allegations consistent with hearing that the plaintiff’s partner took the plaintiff’s daughter with her to a doctor so that the plaintiff’s partner could be treated for the effects of boiling water. I note from cross-examination of Constable Campbell that she made the appropriate concession that the plaintiff may have said that his partner had gone to the doctor as a result of being hit with hot water. I am not satisfied that Constable Campbell made the omission from her evidence in chief intentionally. I do not find the omission of “telling” in any way which impeaches the credibility of Constable Campbell. I accept the evidence of Constable Campbell in cross-examination that she thought she had mentioned it in her evidence in chief.
  1. [40]
    A third inconsistency was submitted[23] to exist between the evidence of the constables and to be significant. The relevant passage of Constable Austernin’s evidence follows:[24]  

Based on the information that there was an injured party and there was a domestic situation I’ve gone to detain Mr Dienaar under the provisions of the Domestic Violence Act.

Where was Mr Dienaar at this time?He was still sitting on the couch.  He stood up and then we got him to – I think both of us directed him to sit back down and then his – then I’ve taken out my cuffs because he was starting to become very agitated and aggressive and   

In what way was he starting to become agitated and aggressive?You could – his posture changed and his muscles tensed and it appeared that he was about to start fighting.

Okay.  Now, you’ve said he sat back down.  Did he remain seated?No.  He started to get up as I’ve taken out my cuffs.

What happened next?I’ve managed to get one of my cuffs onto his right arm and as I’ve done that he’s launched forward towards Constable Campbell.  I still had a hold of the cuffs.  The – we’ve spun or moved – slipped on the floor.

  1. [41]
    The plaintiff’s counsel submits that Constable Austernin there gave evidence that after the plaintiff was directed to sit down the plaintiff sat back down. One sees that the plaintiff’s counsel made a statement (highlighted in the passage above) which assumed two facts, firstly, that the witness said that the plaintiff sat back down after rising and  secondly that the plaintiff sat back down after rising. The assumption by the plaintiff’s counsel was:
  1. Inconsistent with the oral evidence of the plaintiff;
  1. Inconsistent with the oral evidence of Constable Campbell;
  1. Inconsistent with the oral evidence of Constable Austernin and was not adopted by the constable in his answer;
  1. Inconsistent with the QP9 of Constable Austernin; and
  1. Inconsistent with the statement of Constable Campbell dated 12 May 2008.[25]
  1. [42]
    I reject the submission that Constable Austernin gave evidence that the plaintiff sat back down. I reject the submission that Constables Austernin and Campbell were inconsistent about whether the plaintiff sat back down. I reject the submission[26] that Constable Austernin’s evidence was a recent invention. There was no inconsistency between the evidence of the constables on this topic. On the contrary, the consistency of their evidence with each other and with statements made by each of them in 2008 that the plaintiff:
  1. Rose from the couch;
  1. Was directed to sit back down; and
  1. Did not sit back down

assists me to accept their evidence of those three matters.

  1. [43]
    A fourth inconsistency between the constable’s evidence was submitted to exist. I accept that it does exist. Constable Austernin’s statement[27] prepared just two months after the event described that the Plaintiff “lunged forward in the direction of Constable Campbell” and “moved to push past me”. A lunge might occur with a change of balance and without shifting feet. The same may be said of a move to push past. Eight years later, during Constable Austernin’s cross-examination he gave two descriptions of the plaintiff’s lunge or move to push past that suggested more lateral movement. He spoke of the plaintiff’s moving a couple of step across the floor and of rocketing past. I am not satisfied that those two descriptions, first added by Constable Austernin eight years after the event, were accurate.
  1. [44]
    A couple of steps, if running, might be two metres while a couple of steps, if commencing to move, might be as little as a few centimetres. At trial, Constable Campbell could not recall a lunge towards her.[28] If the plaintiff had lunged or moved to push past Constable Austernin, Constable Campbell would not necessarily have seen it. I am not satisfied that this inconsistency between Constable Austernin’s evidence of a lunge and move to push past and Constable Campbell’s failure to recall it should cause me to doubt the credibility of either constable.
  1. [45]
    The plaintiff’s counsel submitted that Constable Austernin showed a preparedness to grossly exaggerate. One particular was an alleged tendency to falsely attribute violent behaviour to the plaintiff. One submission was:  

This tendency was on display again in Austernin’s evidence about events at the watchhouse.  In evidence in chief, Austernin described steps taken at the watchhouse due to the Plaintiff’s “violent behaviour”[29].  Under cross examination Austernin was shown watchhouse video and asked to identify any point at which the Plaintiff was exhibiting violence.  Coverage was played from the Plaintiff’s arrival, up to the point where the handcuffs were removed in the holding cell.  Austernin was only able to identify one instance of what he described as “violence”, saying “You can see just a moment ago he pushed back”[30].  Examination of the tape shows that describing the motion as violence is a stretch.  This demonstrates Austernin’s preparedness to grossly exaggerate his evidence, in both impugning the Plaintiff’s conduct, and defending the conduct of the police.

  1. [46]
    Constable Austernin did give evidence that “we got him to kneel down because of his violent behaviour”.[31]  As an adjective, “violent” was an inappropriate choice and rightly described as exaggeration. The plaintiff’s behaviour at the watch house was not violent. That adjective, used only once, was inconsistent with the rest of the constable’s descriptions of the plaintiff’s behaviour at the watch house. Constable Austernin also described the plaintiff as pushing back at the watch house. I could not see the movement on the video. It may have occurred. The constable did not suggest that the push back movement was violent. Constable Austernin had been asked to describe the behaviour of the plaintiff at the watch house.  He did not describe any violent behaviour, but gave evidence of the plaintiff’s turning around when he was expected to face the front and of alleging that the constables had made a mistake and that he was going to have their jobs and badges.  I am not persuaded that Constable Austernin’s misuse of the adjective “violent” in the context of his descriptions of non-violent conduct renders the rest of his evidence incredible or unreliable. I have given the plaintiff the benefit of the doubt where I have seen the possibility for Constable Austernin’s exaggeration on the issue of the plaintiff’s lateral movement before he fell to the floor.
  1. [47]
    The plaintiff’s counsel submitted the constables were mistaken about a rug:[32]
  1. Both officers insisted in their evidence that the “take down” took place on what was described as a wooden floor[33].  This seems likely to be true, and accords to the Plaintiff’s evidence.  However the Plaintiff testified that as at the date of the incident, there was a rug on the floor in front of the couch[34].  This indicates a tension between the officers’ evidence that the incident occurred right in front of the couch[35], and it occurred on a wooden surface.
  2. The Plaintiff’s evidence in this regard was supported by photographs taken in about 2006 which showed a rug in front of the couch (exhibit 6, in particular numbers 5 and 8).  The photographs were taken in about 2005[36].  The Plaintiff’s evidence in this regard is for acceptance; he was familiar with the inside of his own house, and the issue would be a strange one for conscious dissimulation.
  3. That both officers were mistaken in this regard throws considerable doubt on all of the detail of their evidence as to what occurred inside the house.
  1. [48]
    The argument for the plaintiff is essentially this:
  1. The plaintiff and the constables agree that the fall was on a wooden floor;
  1. The constables’ evidence is that the fall was in front of the couch;
  1. The plaintiff has photographs showing a rug was in front of the couch in 2005 and 2006 and he believes there was a rug in front of the couch at material times in 2008;
  1. It follows that there was a rug in front of the couch when the plaintiff fell to the floor;
  1. It follows that the fall cannot have been in front of the couch;
  1. It follows that the constables were mistaken in their evidence that the fall was in front of the couch; and
  1. It follows that this “throws considerable doubt on all of the detail of their evidence as to what occurred inside the house”.
  1. [49]
    The rug, if it was in front of the couch, was not implicated in the mechanism of the fall. No witness suggested that the plaintiff or Constable Austernin tripped on a rug or at all. Constable Austernin did not remember a rug or mat but was open to the possibility that a mat may have slipped underneath him.[37] I am not satisfied that a rug was in front of the couch when the plaintiff fell to the floor.  If there was a rug in front of the couch when the plaintiff fell to the floor, the failure of the constables to remember that detail would not assist the plaintiff in the particular circumstances of this case. People tend to overlook and forget details which they regard as irrelevant. The movements of the three persons in the plaintiff’s house and what they said are two matters of particular significance. A rug on the timber floor would have no special significance unless it caused somebody to trip. I reject the submission that the inconsistency between the evidence of the plaintiff on the one hand and the constables on the other throws doubt on the detail of the constables’ evidence. 
  1. [50]
    Further inconsistency was submitted to have emerged between Constable Austernin’s evidence in chief and his evidence during cross-examination. In evidence in chief there was this exchange:

The method that you used to detain Mr Dienaar, was that in accordance with the instruction and training that you’ve been given?Yes.

  1. [51]
    The plaintiff’s counsel submitted that under cross-examination, Constable Austernin was unable to describe any relevant training or instruction in that regard.[38]  The relevant passage was:[39]

“Well, were you given any specific guidelines for the use of force in respect of alleged domestic violence offenders? - - you – you respond as required.

Is that all you were told, to respond as required? - - - there is no specific – you attend, you investigate and some people are compliant, some aren’t.”

  1. [52]
    I infer that Constable Austernin was given instruction and training as to what to consider, what to say and what to do if exercising powers pursuant to s 69(1)(a) of the Act. The fact that Constable Austernin’s second answer suggests that he was not given specific guidelines about the force to use when exercising powers under s 69(1)(a) of the Act is unsurprising. Instruction about the proper occasion to exercise a power under a statute and instruction on how to respond physically to aggression or the threat of it would seem to be different topics. There is no reason to infer that the two topics would have been the subject of instructions at the same time. The difference between the two answers does not persuade me that Constable Austernin’s evidence is unreliable.
  1. [53]
    The plaintiff’s counsel used the comparison of the constable’s two answers to support his submission that “This failure is relevant to Austernin’s credit, insofar as it demonstrates the willingness to make a general statement without being in a position to justify it”. I reject that submission.

Assessing Credit - the Plaintiff

  1. [54]
    The plaintiff’s statements about when and how he fractured his wrist have changed over the eight years to trial. In 2008 he told Detective Senior Sergeant Trezise that he thought his wrist was fractured at the watch house,[40] that while at the watch house the cuffs were squeezed even tighter and he was jerked and that was when his wrist was broken,[41] although he accepted that it could have been broken earlier.[42]  Dr Gillett examined the plaintiff at the request of the plaintiff’s solicitors.  The examination was on 12 November 2010.  At that time Dr Gillett recorded:[43]

On 30 May 2008 Mr Dienaar was arrested by police officers and in the process thrown to the ground had his hands behind his back and handcuffed.  He was then lifted to his feet by the handcuffs.  In this process he sustained a fracture of his left wrist.

  1. [55]
    Secondary evidence of the plaintiff’s notice of claim appears in the plaintiff’s cross-examination and is set out in the report of Dr Coleman[44] which notes:

I note the Notice of Claim of the 21/6/2010, which Mr Dienaar confirmed was signed by himself, where he states “Constable Augustine put handcuffs on the Claimant behind his back and squeezed the cuffs together as hard as he could.  Constable Augustine then lifted the Claimant off the floor using the chain of the handcuffs, and bending the Claimant’s arms backwards and breaking his wrist.”

  1. [56]
    The plaintiff’s first pleading dated 29 March 2011 attributed the fracture to lifting the plaintiff by the handcuffs[45] but not to his falling or being thrown to the floor. 
  1. [57]
    Dr Coleman also reported that the plaintiff claimed he experienced no pain in the episode when he was “thrown to the ground” but that his pain began only after he was lifted from the floor using the handcuffs and the pain he felt then was on the radial side of the left wrist.
  1. [58]
    On 26 June 2012, fifteen months after the plaintiff’s first pleading, Dr Coleman expressed the opinion that the fracture was consistent with the plaintiff having fallen onto an extended arm and that this is the most common mechanism for the Colles’ fracture of the distal radius, which is the plaintiff’s fracture. He expressed the opinion that it could not have been caused by being lifted by handcuffs, that given that the fracture was un-displaced and in a good stable position it was plausible that the plaintiff could have continued to use his wrist following the fracture and that it was plausible that he would not have felt a significant degree of pain until the handcuffs were applied. Dr Gillett was asked in conference on 17 October 2016 about whether the handcuffs were involved in the fracture. He expressed the opinion in that conference that he could not see the cuffs as being the cause of the injury and said that 99.9 per cent of the time the cause is a fall onto outstretched hands. I accept all of that uncontested, orthopaedic evidence.
  1. [59]
    By the time of trial, the plaintiff was persuaded that the opinion of the orthopaedic specialists was correct and that it was impossible for him to sustain his injury in the way he had once maintained.[46]  At trial, the plaintiff gave evidence in chief that he had symptoms of immense pain in the wrist since he hit the floor.[47]  The only event to which the plaintiff could attribute his fracture when giving evidence at trial was his being put to the ground.[48] Those were two significant changes to the plaintiff’s earlier statements and instructions and each served to achieve better consistency with the opinion of Dr Coleman. I am satisfied that the plaintiff tailored his evidence for that purpose rather than because of a change in his recollection. The plaintiff’s willingness to change his recollections lessens confidence in his credibility generally. Consistent with the plaintiff’s evidence at trial, I find that the fracture occurred when the plaintiff fell to the floor and not when he was lifted by the handcuffs. I am persuaded of that finding by the evidence of Dr Coleman, Dr Gillett and the constables.
  1. [60]
    The plaintiff had a left knee arthroscopy at Ipswich Hospital on 29 March 2010.[49]  The plaintiff did not simply claim to have forgotten.  When shown the hospital records the plaintiff asserted “this is not me”.[50]  Such decisive confidence in the teeth of contrary evidence is unimpressive. The plaintiff’s counsel’s submissions on quantum were premised on the hospital records correctly identifying the plaintiff as the patient.
  1. [61]
    The plaintiff signed a statement of loss and damage. It was dated 24 March 2015 and provided to the defendants. It asserted:

As at the date of the incident, the plaintiff was in secure employment as a fibre glasser with Classic RTM Proprietary Limited.

In fact, prior to 30 March 2008 the plaintiff had given notice to his employer, Classic RTM Proprietary Limited, that he was terminating his employment and his employment was due to terminate in a week.[51] It was false and misleading to have stated that he was in secure employment with that employer on 30 March 2008.

  1. [62]
    The plaintiff’s schedule of pre-accident and post-accident employment and income history[52] suggests that he was unemployed from 30 March 2008 until 1 October 2010.  The plaintiff confirmed that he advised his solicitors of all his employment and that he paid particular attention to ensure that it was correct.[53]  By cross-referencing to information given by the plaintiff to Dr Fitzell and recorded by Dr Fitzell, counsel for the defendants extracted from the plaintiff a concession that he had done odd jobs before 1 October 2010.  He then accepted that on 25 June 2010 he had told Dr Fitzell that he had been working three days in the week before and two days in that week.  It follows that in the two week period he worked no less than 5 days. He accepted that he was being paid some money cash in hand for his work and that he was not declaring it to Centrelink.  The plaintiff gave evidence that he was paid $50.00 a day but could not remember how many days’ work he did for this employer, Sunfab.  The plaintiff deceived Centrelink and his legal advisors about some undisclosed income earned in 2010. It is difficult to be confident of his uncorroborated recollections about income earned. I am satisfied that the plaintiff was being frank with his treating psychologist at the time, Dr Fitzell, and I infer that this undisclosed work was likely to have commenced only shortly before 4 June 2010.

Events prior to the Constables’ attending the dwelling

  1. [63]
    Constable Austernin was a custodial corrections officer from about 1995 to 2000. In 2000 he joined the Queensland Police Service. In both occupations he had received training which included identifying aggressive behaviour. On 30 March 2008 he was about 183 cm tall and of medium build. Senior Constable Kate Campbell joined the Queensland Police Service in 2005, was a constable on 30 March 2008 and was promoted to senior constable in 2009.
  1. [64]
    On Sunday 30 March 2008 the plaintiff, his partner and a couple of friends were having drinks at the plaintiff’s home.  The plaintiff and his partner of that time have a daughter who was five years old at the time. The plaintiff’s partner’s parents lived next door. The plaintiff and his partner started drinking at about 1.00pm.  His partner was drinking glasses of beer poured from a tall bottle.  The plaintiff was drinking cans of Jack Daniels.  The friends left and the plaintiff went for a walk carrying a can of Jack Daniels. He returned at about 5.00 pm.  During the evening an argument began between the plaintiff and his partner.  The plaintiff gave evidence that:
  1. The argument lasted for about half an hour;
  1. There were loud voices and that he was always loud;
  1. The plaintiff possibly made threats during the argument;
  1. Their daughter was at home;
  1. There was boiling water in a jug;
  1. The plaintiff was making noodles;
  1. The plaintiff spilled water in his partner’s beer;
  1. So his partner poured beer on the plaintiff’s noodles;
  1. So the plaintiff tried to push his partner;
  1. All the boiling water in the jug went onto his partner’s chest;
  1. It was “something I’m not proud of”;
  1. His partner went next door to her parents;
  1. The plaintiff followed her trying to make amends but could not;
  1. His partner’s parents put her in the shower;
  1. His partner’s parents or his partner’s father then took her away by car;
  1. The plaintiff assumed that they drove to the Ipswich Hospital;
  1. The journey to the Ipswich Hospital by car would be expected to take 15 to 20 minutes;
  1. He returned home and wandered about the house, cursing himself for about half an hour “because I’d done something that I shouldn’t have…”;
  1. The plaintiff did not eat a meal;
  1. He then went to bed and fell asleep;
  1. He woke upset and distressed “because I’d done something that I never thought I could ever do”;
  1. The next thing he was aware of was banging on his front screen door while blue light was flashing through his window;and
  1. The plaintiff later learned that his partner had been taken to the Ipswich Hospital.
  1. [65]
    His partner was triaged at Ipswich Hospital Emergency Department at 9.29 pm on 30 March 2008.  Records included a sketch of the burn area to his partner.  The burns were confined to the left and extended from about the left collarbone to the base of the left breast.
  1. [66]
    On Sunday 30 March 2008 Constables Austernin and Campbell were on duty for a 4pm to midnight shift and were in the process of arresting an individual in Brisbane Street Ipswich at about 10.00pm. They were directed to abandon that arrest and to proceed to an address in Riverview, the plaintiff’s address. The instruction they received was that it was a code 2. There were four basic codes. Code 1, the most urgent, meant that there was a report of an imminent threat to life or property. Code 2 meant that there was a report of a threat to life or property. The information provided to the Constables was that there had been a triple zero call to the effect that:
  1. A male and female had been heard fighting;
  1. A child had been heard screaming;
  1. A male had been heard to yell “I’m going to kill you”; and
  1. The address was in darkness.
  1. [67]
    Constable Austernin drove. He activated lights and siren on the police vehicle, which was appropriate for responding to a code 2. The journey would ordinarily take about 15 minutes. Using lights and siren, the Constables took less time. When they arrived, the house was in darkness. It was about 10.15 pm.

Entry into the dwelling and a threat to use force on the door

  1. [68]
    The plaintiff gave evidence that when he heard the banging on the door:
  1. He awoke, got out of bed and approached the front door;
  1. His partner had locked it with a key and taken the key;
  1. He saw the two constables at the door;
  1. They asked to be let in;
  1. He said that he would as soon as he could find the key;
  1. They said if you don’t the key soon we’re going to break the door down;
  1. The plaintiff replied “if you’re going to do that, come round the back… it’s open”; and
  1. They ran down the front stairs and around the back.
  1. [69]
    It is uncontroversial that the constables told the plaintiff through the screen door that they were attending in relation to a domestic dispute, that they identified themselves and that Constable Austernin advised the plaintiff that if he did not give them access he would use force to open the door.
  1. [70]
    The plaintiff gave a statement in 2008 for the disciplinary proceeding. A part of the statement is to the effect that the plaintiff did not realise that his partner had taken the key to the locked front door, that he could not unlock the screen door for the waiting police without a key, that he took some time looking for a key and eventually found it in a Jack Daniels box, but the constables had entered through the back door by the time he unlocked the front door.[54]  That statement by the plaintiff is consistent with his evidence at trial.
  1. [71]
    Constable Austernin gave evidence that the plaintiff “claimed that the door was locked and he couldn’t find the key and kept fumbling around and stalling inside. I eventually stated or advised him that if he didn’t – if we didn’t get access I would be forced to use force on the door to open it”.[55]
  1. [72]
    On 29 May 2008 Constable Austernin gave a statement which included:
  1. On our arrival at the address at approximately 10:15pm, we immediately went to the front door of the residence.  The house was in darkness with no sound.  After knocking a number of times and after a delay…Dienaar answered the door, and after opening the front door did not open the security screen door which was locked, stating he could not find the key. 
  1. Dienaar went back into the house and appeared to be stalling walking around and calling out he could not find the key.  At which time I advised him that if he failed to open the door it would be opened with force.  Dienaar then called out something like “The back door is open”.
  1. [73]
    Constable Austernin’s evidence about his threat to use force on the front door is consistent with a statement he gave eight years before.
  1. [74]
    Constable Campbell gave evidence that she wondered why the plaintiff was taking so long to find a key to open the front door and that it aroused her suspicion. However, Constable Campbell was unable to remember whether Constable Austernin had threatened to open the front door with force.
  1. [75]
    In a statement that Constable Campbell made on 12 May 2008, she also omitted to make any reference to Constable Austernin’s giving a warning that the door could be opened by force. Constable Campbell’s statement of 12 May 2008[56] included:
  1. On arrival at the address…we entered the property via the front stairs.  The front screen was locked and the door behind it shut and both Constable Austernin and I knocked on the door.  There was no answer so I knocked on the door again. 
  1. We heard movement inside the house and then heard a male person ask, Who is it?  We replied “Police open the door”.  A male person who I now know as Rolph Dienaar opened the front door.  He then stated that the screen was locked and went searching for a key.  He was taking a long time to find a key and searching out of our sight through the screen door.  I could hear him moving around the lounge room and kitchen.  He then stated that the back door was unlocked.  So Constable Austernin and I went down the front stairs and walked around the right hand side of the house and up the rear stairs. 
  1. [76]
    The constables entered through the back door. The constables were taught that best practice in a situation of potential domestic violence was for one of two police officers to check the house to determine whether there were any other occupants. Constable Austernin walked from the back of the house to engage with the plaintiff, while Constable Campbell made a cursory search of each of the rooms checking for any other occupants. She may have been up to fifteen seconds behind Constable Austernin because of her search. Constable Campbell’s search did not include looking under beds or in cupboards. She saw no persons in the house other than the plaintiff and Constable Austernin.
  1. [77]
    The plaintiff’s counsel submitted that Constable Austernin’s threat to use force on the door was “precipitate and uncalled for in the circumstances”. I bear in mind that the plaintiff does not appear to have known that his partner had taken the key when he went to open the door. That may explain his delay. He did not explain to the constables that the usual key was missing or had been taken. The amount of time that he spent looking for the usual key and then an alternate and failing to open the door is unclear. I am not satisfied that it was precipitate for Constable Austernin to threaten to use force on the door if it could not be opened. The constable did not use force on the door. His threat brought an immediate invitation from the plaintiff for the constables to use the open back door. I am not satisfied that Constable Austernin’s threat to force the screen door was uncalled for in the circumstances.
  1. [78]
    The plaintiff’s counsel submitted that Constable Austernin’s description of the plaintiff as “stalling”[57] was designed to paint the plaintiff in an unfavourable light.  Constable Austernin explained why he described the conduct as stalling:
  1. There was no immediate response to directions;
  1. The response was “I can’t find the key”;
  1. The search for the key continued for an extraordinarily long time for someone who lived in the residence and would ordinarily know where the key is; and
  1. He had the opportunity to tell us that the back door was open.[58]
  1. [79]
    The plaintiff submitted that this evidence showed that Constable Austernin was neither professional nor detached. I accept the evidence of Constable Campbell that she wondered what was taking the plaintiff so long. It corroborates Constable Austernin to some extent. I am not satisfied that this example justifies that adverse finding about Constable Austernin.
  1. [80]
    I am satisfied that the plaintiff took an unexpectedly long time without opening the front door. I am not satisfied that the plaintiff was deliberately stalling. The plaintiff submitted that it was not reasonable to conclude that the plaintiff was stalling. As a conclusion on the balance of probabilities, that may be so. It was reasonable for Constable Austernin on 30 March 2008 to have regard to the plaintiff’s delay as having possibly been deliberate stalling. It would have been naïve to ignore that as a possibility.

Plaintiff’s disclosures to the constables about his absent family

  1. [81]
    There is an issue about what the plaintiff told the constables regarding the whereabouts of his partner and child before he was detained. If they were known to the constables to be safe, it would affect whether there were reasonable grounds for suspecting that the absent woman or child was in danger of personal injury. The plaintiff also submitted that inconsistencies between the constables’ evidence about what the plaintiff said cast doubt on the credibility of Constable Campbell. The credibility issue is whether the plaintiff told the constables that his partner had gone to a doctor on the one hand or to a hospital on the other hand. It would arguably have been less suspicious if the plaintiff had said that they went to the hospital. Emergency departments are likely to be open and contactable but individual doctors are not.
  1. [82]
    Constable Austernin entered details in his police note book. A photocopy of the two pages[59] which relate to the incident contains these details on the second page:

Obstructed Police when detained

DV.

Stated had thrown hot

water over wife.

Claimed did it when she threw

attempted to throw hot water over him.

Wife taken to hospital.

  1. [83]
    Constable Austernin agreed under cross-examination that the notation “Obstructed Police when detained DV” would indicate that it was made following the restraint of Mr Dienaar. He could not otherwise recall when he entered the details in the notebook or even if it was while he was at the plaintiff’s house.
  1. [84]
    Constable Austernin made a statement on about 29 May 2008[60] which alleged:
  1. I asked DIENAAR the whereabouts of the woman and the child.  DIENAAR stated “she had gone to the doctors” I asked “Which doctor”?  DIENAAR said “I don’t know to the doctor”.  I asked DIENAAR what happened and he said “We had a Domestic and I threw hot water on her”.  DIENAAR then told us that he had been making noodles and the woman who we established was his partner had thrown water at him and he threw hot water on her.

  1. Additional Police arrived as we placed DIENAAR into the Police vehicle.  Constable CAMPBELL established that the woman had been taken to Ipswich Hospital to have the burns treated.
  1. [85]
    Constable Campbell made a statement on 12 May 2008[61] which alleged:
  1. …I heard Constable AUSTERNIN ask where the other persons were?  He said that his partner had taken their daughter to the doctor.  Constable AUSTERNIN then questioned him about the Doctor.  I then heard DIENAAR say that he tipped hot water over his partner and she’s gone to the doctor.

  1. Due to his behaviour DIENAAR was then held by Constable AUSTERNIN at the Police vehicle and I requested a van.  Constable AUSTERNIN then decided to place DIENAAR in the rear of the police vehicle and waited there, while I went next door to number 54 where a lady was standing a her gate.  I then had a conversation with this person who was the aggrieves mother and who had DIENAAR and the aggrieves daughter asleep inside the house.  I did a visual check on the child and established that the aggrieved has been taken Ipswich Hospital by her father. 
  1. [86]
    In evidence in chief, Constable Austernin said the plaintiff’s response to questions asking for his partner’s whereabouts was initially “don’t know”,[62] that the plaintiff then advised that he had thrown hot water on his partner and Constable Austernin’s concern was for the plaintiff’s partner. He again asked where she was and the plaintiff said “don’t know, gone to find a doctor”[63] or “She’s gone to the doctors.”[64]
  1. [87]
    In cross-examination Constable Campbell gave the following evidence:[65]

Mr Dienaar told you that his wife had gone to the doctor as a result of being hit with the hot water or words to that effect.  He connected those two things?   Quite possibly.  Yeah.  Yep.  But he couldn’t elaborate on what doctor or anything for me to double-check that was correct.

Right.  And you didn’t pursue those things at the time, did you?   Yeah.  I kept – we further questioned that, and there was no – there was no reasonable answer given to satisfy me that she was at a doctor or okay, or that we couldn’t contact her to establish that she was okay.

There was one sensible place to take someone who’d been hit with hot water at that time of a Sunday night, wasn’t there?   Well, to me the only place would be a hospital, not a doctor’s…     

  1. [88]
    I am satisfied that the note “Wife taken to hospital” was made after the plaintiff was detained. Five matters are inconsistent with Constable Austernin’s having made the note before the plaintiff was detained. They are:
  1. The note’s position on the page five lines below the note “Obstructed Police when detained”;
  1. There is no evidence that the plaintiff told the constables that his partner had been taken to hospital;
  1. Each constable gave evidence that the plaintiff spoke of his partner (or his daughter) going to a doctor as opposed to a hospital;
  1. The plaintiff’s counsel put to Constable Campbell:  “I’m specifically putting this to you:  that Mr Dienaar told you that his wife had gone to the doctor as a result of being hit with the hot water or words to that effect”; and
  1. There is unchallenged evidence that Constable Campbell learned that the plaintiff’s partner was at Ipswich General Hospital, not from the plaintiff, but from the plaintiff’s partner’s mother who was next door and that Constable Campbell learned it after the plaintiff had been taken outside to the police car. Constable Campbell will have been the source of Constable Austernin’s information about the hospital.
  1. [89]
    I am satisfied that the plaintiff said to the police officers words to the effect that his wife had gone to the doctor as a result of being hit by the hot water which he had thrown or tipped on her. I am satisfied that the constables then had reasonable grounds for suspecting that an act of domestic violence had been committed by the plaintiff.

The evidence of battery

  1. [90]
    In 2008 the plaintiff gave evidence or a statement to Detective Senior Sergeant Trezise. An undated transcript[66] was made. Relevant extracts are:

I’m standing by the walking machine here he’s standing ah I’m closest to the walking machine he’s grabbed me by the left arm twisted around my hand and thrown me tripped me up thrown me on the ground and then said you’re under arrest never gave me a chance to resist arrest at all and he’s charged me with resisting arrest

Basically walked me out of the door right down the stairs the neighbours across the road have seen me coming down the stairs…

MT: So is this when your arm got broken or was it inside the house?

RD: Ah I’m not nah I think it was at the ah watch house

They got me to the watch house as soon as I got out of the car I said loosen my cuffs please pulled me into the thing I said can you loosen my cuffs please I just kept saying that can you loosen my cuffs please he wouldn’t do it and then when they led me around the little room there he squeezed em up even tighter and started jerking me around that’s when I reckon it got broken

MT: Alright okay so is there any assault other than the handcuffs?

RD: No

MT: So the only complaint you have about the police is the way that they handcuffed you too tight and obviously it caused a fracture to your arm

RD: yes broke my wrist I’ve been out of work for six weeks and if it wasn’t for the fact that I had holidays I’d be out of a house too

And I’m I’ve also losing $1,000 or $1,800 a week now because I’m supposed to be in China

…She’d looked through the house and uhm and said there was nobody else here he’s just grabbed me without any warning whatsoever and thrown me on the ground

MT: Did they have discussion with you while you were sitting on the couch?

RD: No.  I was standing here I never got to sit down I never got to do anything I was just standing here he’s just grabbed me and landed me on the ground

MT: Alright.  Was there some discussion about a bottle of beer they were talking to you and they wanted to move the bottle of beer, something like that?

RD: No

MT: …you got to the watch house… you said you were taken to… an observation cell with glass with Perspex panels

RD: Yes… he’s dragged me around asked me to get down so I get down on my knees so I put my knees on the bench and he’s forced me to the ground… and then he’s taken the cuffs off.

MT: … you said that you’re of the opinion that’s when your… wrist got broken

RD: Yeah when he grabbed me from the line cause he squeezed the cuffs harder again and he’s taken me away from the line and led me off to the room… I think that’s when I got broken yes… Oh it could’ve been broken earlier but it really hurt then yes.

  1. [91]
    At trial, the plaintiff gave the following evidence of the battery:[67]
  1. The plaintiff was standing;[68]
  1. He was at the end of the wall between the kitchen and the lounge room;
  1. Constable Austernin was holding the plaintiff’s left arm;
  1. He held the plaintiff’s left arm while Constable Campbell was searching the house for a minute;
  1. Constable Austernin said nothing when he took hold of the plaintiff’s arm and there was no conversation between Constable Austernin and the plaintiff while Constable Campbell searched the house;
  1. He did not make an aggressive move and does not remember using an aggressive tone;
  1. Constable Campbell came out of the bathroom, looked down the hallway, nodded her head and Constable Austernin threw the plaintiff to the ground;
  1. Constable Austernin was holding the plaintiff’s left arm when Constable Austernin threw him to the ground;
  1. Constable Austernin dragged the plaintiff down with the plaintiff’s left arm;
  1. Constable Austernin was standing on the plaintiff’s left-hand side when he dragged the plaintiff down;
  1. Each of the plaintiff and Constable Austernin had been facing the same way which was down the hall way;
  1. The plaintiff ended face down with his head facing the front door;
  1. Constable Austernin came down with the plaintiff and then dug his knees into the plaintiff’s back, pulled the plaintiff’s arms around behind him and put the handcuffs on;
  1. Constable Austernin then said “you are under arrest for domestic violence”;
  1. The handcuffs were still in Constable Austernin’s belt when he took the plaintiff to the ground;
  1. The plaintiff felt immense pain when the cuffs were put on because they were squeezed as tight as Constable Austernin could make them;
  1. The plaintiff began to ask for the cuffs to be loosened and asked this constantly.
  1. [92]
    In both those accounts, the plaintiff recalled that he was standing before being put on the ground. In his oral evidence at trial, when he described Constable Austernin’s action, the plaintiff described an action different from a throw: Constable Austernin “came down with me” and dragged the plaintiff down by his left arm. Notably, the plaintiff also omitted the allegation he made in 2008 that the constable “tripped me up”.
  1. [93]
    Constable Austernin’s statement[69] dated 29 May 2008 contained the following relevant passages:
  1. …Dienaar was seated on a lounge in the living room.  I removed an empty beer bottle from his reach.  Dienaar started to carry on about me moving the bottle and saying things like “move the can as well” referring to an empty drink can that was also on the lounge.
  1. Dienaar again told us that he had thrown boiling water over his partner.  I advised Dienaar that he was detained for committing an act of Domestic Violence.  Dienaar has then become aggressive refusing to comply with directions shouting things like “I have done nothing wrong, she cheated on me, she had an affair”.
  1. I have attempted to handcuff Dienaar, I managed to get one hand cuff on his right wrist, he has tensed his muscles to prevent being handcuffed and refused to comply with directions, and come with us.  Dienaar was shouting things like “I let you into my house.  You have no right.  I haven’t done anything”.
  1. Dienaar has then attempted to pull away by violently pulling his right arm and body to the left, in an attempt to prevent me from handcuffing him.  Dienaar jumped up from the lounge and lunged forward in the direction of Constable Campbell.  I still had a hold of the handcuffs which are hinged.  As Dienaar moved to push past me I used the handcuffs in a push-pull method and managed to get Dienaar into a straight arm bar and he went down to the floor pulling me down with him, we both hit the floor hard.  Dienaar continued to struggle to prevent being handcuffed.  Constable Campbell and I managed to handcuff Dienaar.  I handcuffed him stacking the handcuffs (One hand over the other).
  1. [94]
    The QP9 document[70] contained the following passage relevant to the battery.

Police directed the defendant to sit on a lounge and stop moving around when Police removed a large beer bottle from his immediate reach the defendant became argumentative.  The defendant argued with Police that his partner had had an affair and he had done nothing wrong. 

Police advised the defendant he was detained under the provisions of the Domestic Violence and Family Protection Act and was required to accompany Police to the Police Station.  The defendant became aggressive and argued that he had let Police into his house and Police had no right.

Due to the defendant’s demeanour Police have moved to handcuff the defendant.  As Police put the first cuff on the defendant the defendant has jumped to his feet from the lounge and tried to push past Police. 

Police have had to forcibly take the defendant to the floor and restrain him…

  1. [95]
    Constable Austernin gave evidence in chief that:[71]
  1. The plaintiff was in the lounge room sitting on a lounge with his back to the wall while Constable Austernin was standing in the centre of the lounge room off to the side of the plaintiff and with the front door to the Constable’s left and the rest of the lounge-room to the Constable’s right;
  1. He removed an empty beer bottle from the lounge and moved it out of the plaintiff’s reach;
  1. Beer bottles make an awful weapon;
  1. Constable Campbell was searching the house for the woman and child;
  1. The plaintiff started to argue and carry on about the beer bottle and observed that there was an empty can on the lounge and asked “why don’t you move that as well”;
  1. Constable Campbell returned and said that she had found no-one;
  1. Constable Austernin asked again “where are they?” and again got the response “gone to a doctor”;
  1. Constable Austernin went to detain the plaintiff under the provisions of the Act when the plaintiff was still seated;
  1. The plaintiff stood up;
  1. Both Constables directed the plaintiff to sit down;
  1. When Constable Austernin took out his handcuffs it was because the plaintiff was starting to become agitated and aggressive, his posture changed and his muscles tensed and it appeared to Constable Austernin that he was about to start fighting;
  1. Constable Austernin put one cuff onto the plaintiff’s right arm and the plaintiff “launched forward” towards Constable Campbell;
  1. After putting one cuff on the plaintiff, Constable Austernin still had hold of the cuffs and “we’ve spun or moved – slipped on the floor.  Mr Dienaar, who’s still managed to make it a couple of steps past me – I have managed to use the handcuffs to get into what is referred to as a – a push/pull motion and then we’ve fallen to the floor … I fell straight down on my right side and Mr Dienaar fell beside me … it was not an intended act … I had some sore ribs for the next few days, but the covert body armour I was wearing took the brunt of the impact … I was on my side … I still had the handcuffs in my hand … he was immediately to my left … I managed to recover and by that stage Constable Campbell was coming in and there was a slight wrestling match on the floor and we’ve managed to restrain Mr Dienaar with his hands behind his back with the handcuffs in a stacking motion … where you actually handcuff the hands one above the other.”[72]
  1. [96]
    In cross-examination Constable Austernin’s evidence on this topic was that:
  1. The fit and muscular[73] plaintiff tensed his muscles and clenched his fists which is an indicator of potential for a fight;
  1. A police officer can use the body mechanics of an offender to force the offender to the ground in a controlled way in order to restrain the offender;[74]
  1. In the course of work in general duties at Ipswich in 2008 he saw other police officers take people to the ground to restrain them;
  1. He had safely performed the tactic of taking a person to the ground many times;[75]
  1. Taking an offender to the ground is a tactic taught to minimise injury;[76]
  1. Because the plaintiff said he threw hot water on his partner, Constable Austernin determined that the plaintiff’s act was deliberate;
  1. When the plaintiff was sitting on the edge of the lounge Constable Austernin said to him that he was detained for committing an act of domestic violence;
  1. When sitting on the lounge the plaintiff’s arms were on his knees and he was making fists and tensing;
  1. As he attempted to handcuff the plaintiff, the plaintiff claimed he had done nothing wrong and that his partner had cheated on him;
  1. When Constable Austernin lifted the plaintiff’s right hand to get the cuff on, the plaintiff was “still half on the lounge”;
  1. He was starting to stand when Constable Austernin got one handcuff on his right wrist;
  1. He got the handcuff on fairly easily;
  1. “He was becoming aggressive.  His body stance, his – clenching his fists.  It was an aggressive move”;
  1. The plaintiff jumped up from the lounge and lunged forward in the direction of Constable Campbell and “it would have been a couple of steps”;
  1. Constable Austernin managed “to get the straight arm bar on”;
  1. Constable Austernin agreed that the plaintiff was “rocketing past”;
  1. “He’s passed me.  Handcuffs are pulled, and then we’ve fallen to the floor.” as “he’s pulled me over with him”;[77] The intent was to restrain him and use the push-pull method to get him to the floor… But as a result we’ve slipped and we’ve fallen.[78]
  1. Constable Austernin could not say whether the plaintiff was moving towards Constable Campbell because she was behind Constable Austernin to his right but she was standing in that direction;
  1. The action that took the plaintiff to the floor was a combination of the straight arm bar and the falling – slipping on the polished floor;[79]
  1. (When the plaintiff was standing) Constable Austernin applied force to the plaintiff’s handcuff with intent to take the plaintiff to the floor with a “controlled take-down”;[80]
  1. Constable Austernin does not recall a mat on the floor and cannot say whether a mat slipped underneath him.
  1. [97]
    Constable Austernin added in cross-examination:
  1. The take-down procedure does not ordinarily result in the police officer falling as well;
  1. Constable Austernin would have been able to restrain the plaintiff without taking him to the ground if the plaintiff had not resisted;
  1. Constable Austernin applied force to the plaintiff’s handcuff with the intention of taking him to the floor in a controlled take-down;

“You tried to take him to the floor.  That’s your evidence, quite clearly?Yes”[81] “And he fell   ?As a result   

   as a result of that?    of him trying to resist being handcuffed.”[82]

“I moved to handcuff.  He has tried to prevent me from handcuffing him.  As a result, I have tried to take him to the floor and it’s not inconceivable that the wrist got broken during the fall…we fell because he tried to pull away from me.”[83]

  1. [98]
    Constable Campbell made the following relevant observations in her statement[84] dated 12 May 2008:
  1. Constable Austernin then asked that Dienaar sit down (on) the lounge in the lounge room…Dienaar then touched a coloured bag that was on the couch next to him.  I then observed an empty large ‘tallie’ beer bottle and a can that was half in the bag.  Constable Austernin then grabbed the bottle from the couch and placed it away from where Dienaar could touch it and use it as a weapon against us.  Dienaar started questioning why Constable Austernin took the bottle off him.  Dienaar then carried on about the can and if he wanted to take that too.
  1. Dienaar then stood up and was told to sit down by Constable Austernin and then myself.  He did not do so.  Constable Austernin then told him he was detained under the Domestic Violence Act
  1. Constable Austernin was facing Dienaar but off to Dienaar’s right side and I was on his left.  Dienaar started getting aggressive in his voice and Constable Austernin got out his handcuffs and went to place them on Dienaar.  I saw Constable Austernin get one cuff on.  Dienaar failed to comply with the directions that Constable Austernin was giving him and was resisting the cuffing.  I then grabbed Dienaar’s left arm and Constable Austernin then took Dienaar to the ground and they both landed on the floor.  I then assist Constable Austernin in getting the other handcuff on Dienaar. 
  1. Whilst on the ground Dienaar carried on about him not doing anything wrong and that his partner was the one that had an affair and something about him letting us into the house.
  1. [99]
    Constable Campbell gave the following relevant evidence in chief on this topic:
  1. She entered the back door and then checked each of the rooms in the house to make sure there was no one else there, for the safety of the constables and to check that no one was hurt.  She did not open the cupboards or look under beds;
  1. The plaintiff said his partner had taken their daughter to the doctor;
  1. She thought it was strange, being a Sunday night at 10 o’clock, that a doctor would be open;
  1. He mentioned pouring boiling water;
  1. He was sitting on the couch with a coloured crocheted bag beside him and in it was a tall bottle and a can;
  1. Constable Austernin took the bottle and put it out of the way;
  1. The plaintiff got agitated, took offence to that and asked “what did you move the bottle for?” and “do you want the can as well”;
  1. He stood up from the couch and Constable Austernin and I said “sit down”;
  1. He started getting louder and argumentative, getting more aggressive in his demeanour, getting angrier, arguing “I let you into my house”;
  1. He did not sit down after he was told;
  1. Constable Austernin then told him that he was “under arrest – under – he was detained under – for domestic violence” and proceeded to grab his cuffs out of his utility belt and placed one cuff on Mr Dienaar’s wrist…it would have been his right wrist”;
  1. “At that stage, Mr Dienaar’s tensed up and hasn’t complied with any instructions and they’ve ended up going to the ground.  I can’t recall exactly the specifics of that.”
  1. Once he was on the ground he’s refused to put his left hand behind his back, and that’s when I’ve assisted to put it behind so the second cuff could go on the left wrist.
  1. [100]
    In cross-examination,[85] Constable Campbell gave evidence on this topic that:
  1. “I remember that he was arguing.  His demeanour was aggressive.  It wasn’t compliant.  He wasn’t following instructions, like when we told him to sit down again…”;
  1. “…he was told he was detained for domestic violence – like, under domestic violence legislation”;
  1. “Constable Austernin took his cuffs out… off his belt and attached one cuff… I don’t know the exact further details…”;
  1. “I have been present when lots of people have been… taken to the ground and handcuffed”;
  1. “In Ipswich… we have a high rate of domestic violence, which we deem as high risk.  And… I’ve done it (put a member of the public down to the ground in order to handcuff) myself”;
  1. “He had one cuff on when he went to the ground, so… it wasn’t that he was taken to the ground to be handcuffed”;
  1. The push/pull technique does not necessarily involve a straight arm bar and Constable Campbell does not recall what technique Constable Austernin used;
  1. Constable Campbell was reminded of evidence she had given in the Magistrates Court that besides the plaintiff’s voice getting louder and angrier the only sign of aggression was that he stood up.  Constable Campbell accepted that she did not tell the Magistrate about any other gestures of aggression.
  1. “But there was more to it.  Once he was told he was detained, and one cuff was put on his wrist, and then, it just escalated from there, when he tensed up and started carrying on”;
  1. She did not recall when questioned by Senior Sergeant Trezise and did not recall at trial in 2016 whether the plaintiff had made a movement towards her before going to the ground.  If he had moved towards her, she would not necessarily have seen it.  She accepted that in the Magistrates Court in 2008 she said “Constable Austernin has then taken the defendant to the floor” and that those words were her recollection then, less than three months after 30 March 2008;
  1. She accepted that in her statement of 12 May 2008 she said she grabbed the plaintiff’s left arm before Constable Austernin took the plaintiff to the ground but omitted to mention grabbing the left arm in the Magistrates Court in June 2008 and gave evidence at trial that she does not know whether she was within a metre and grabbed the left arm;
  1. The plaintiff had the opportunity to place his other hand out to be cuffed;
  1. The incident occurred on a wooden floor right in front of the couch;
  1. She accepted that in the Magistrates Court in 2008 she had said “Constable Austernin has then taken the defendant to the floor” but explained that she did not recall at trial in 2016 how the plaintiff ended up on the ground.[86] She speculated in an unhelpful reconstruction of an unremembered event “That doesn’t mean that it’s deliberate, but – deliberate in what sense?  Yeah.  He needed to take him to the floor to complete the cuff.”[87]

Analysis of the contentious evidence of battery

  1. [101]
    Each of the constables made statements in 2008 and gave evidence at trial in 2016 to the effect that Constable Austernin removed an empty tall beer bottle from either a bag on the sofa or from the sofa and moved it out of the plaintiff’s reach, that the plaintiff carried on or became argumentative as a result and asked whether Constables Austernin wished to remove a can. This alleged episode was not put to the plaintiff by either counsel for comment. Counsel for the plaintiff made a complaint when Constable Campbell gave this evidence, that it had not been put to the plaintiff and that Brown v Dunne would suggest that I should give the evidence less weight.  I advised that counsel had the opportunity to recall the plaintiff.  The plaintiff’s counsel had prior notice of the potential evidence as a result of disclosure of at least three documents. Further, the plaintiff later tendered the three documents, namely:
  1. The QP9 summary which contained evidence to this effect;
  1. Constable Austernin’s statement which had evidence to this effect; and
  1. Constable Campbell’s statement which had evidence to this effect.
  1. [102]
    Counsel for the plaintiff:
  1. Did not lead evidence from the plaintiff on this topic;
  1. Chose not to recall the plaintiff to allow the evidence to be put to him in cross-examination;[88] and
  1. Did not suggest in cross-examination of either constable that the evidence relating to the bottle and can and the plaintiff’s conversation about them and his alleged agitation in respect of Constable Austernin’s removal of the bottle was incorrect or were matters about which they could be mistaken. 
  1. [103]
    I find that in the short period of up to 30 seconds while Constable Campbell completed her cursory search of the house, Constable Austernin took the precaution of removing a tall, empty, beer bottle from the sofa on which the plaintiff was seated or from a bag on the sofa and moved it out of the plaintiff’s reach. That caused the plaintiff to then ask in an argumentative way whether the constable wanted to remove a nearby can too.
  1. [104]
    In cross-examination of each constable, neither was challenged about his or her evidence that:
  1. The plaintiff sat on the sofa;
  1. The plaintiff rose from the sofa;
  1. The plaintiff was asked to sit (back) down but did not; and
  1. The plaintiff had his right hand cuffed before he went to the floor.
  1. [105]
    I am satisfied of those four matters. My finding that the plaintiff sat on the sofa, had spoken argumentatively about the bottle and can and had risen to his feet rejecting at least one constable’s instruction to sit down means that I reject the plaintiff’s implausible evidence that Constable Austernin had stood beside the standing plaintiff, holding the plaintiff’s left arm as Constable Campbell searched the house and that there had been no conversation and or sign of aggression by the plaintiff before the constable put the plaintiff to the floor.
  1. [106]
    The amended defence denied the allegation that the plaintiff was thrown to the floor on the bases that Constable Austernin did not throw the plaintiff to the floor and that the plaintiff and the constable fell to the floor. Constable Austernin’s statement of 2008[89] was that the plaintiff “went down to the floor pulling me with him.” Constable Austernin’s evidence in chief was that he “fell straight down … it was not an intended act…” Constable Campbell’s statement from 2008 and her evidence at trial were each to the effect that both men landed on the floor.
  1. [107]
    The plaintiff’s counsel did not put to either constable that:
  1. Constable Austernin had thrown the plaintiff to the floor; or
  1. Constable Austernin had not also fallen to or landed on the floor.

The plaintiff’s counsel put the proposition that “You tried to take him to the floor” and put it on three occasions[90] but without suggesting that there was any throw or attempt to throw.

  1. [108]
    I am satisfied that after Constable Austernin told the plaintiff that he was detained and had placed a handcuff on the plaintiff’s right wrist, the plaintiff was standing. At that stage, I am satisfied that the plaintiff made movements consistent with resisting being cuffed on the right wrist. After showing signs to Constable Austernin of an attempt to resist, I am satisfied that Constable Austernin formed the intention to use a “push pull” method and to force the plaintiff to the ground by a method he had been trained to use with a view to minimising the risk of injury. The method Constable Austernin envisaged did not involve the constable falling to the ground.
  1. [109]
    Violent movement by the plaintiff while resisting being cuffed on the left wrist and by pulling away led to both men falling to the ground. The method which Constable Austernin had in mind was a “controlled take-down”. I accept the evidence of Constable Austernin to the effect that a controlled take-down did not happen and that the fall by both men was not what he intended. The method envisaged by Constable Austernin was controlled and did not involve the plaintiff’s uncontrolled fall to the ground. His evidence at trial is also consistent with paragraph 12 of his statement made in 2008.[91] There is some arguably contrary evidence which was given by Constable Campbell.  Constable Campbell made a statement in 2008 and gave further evidence in the Magistrates Court in 2008 to the effect that Constable Austernin took the plaintiff to the ground.  That seems to imply that she had the opinion that Constable Austernin was in control of the manoeuvre.  I prefer the evidence of Constable Austernin on this topic.  He was in a better position to know what happened and whether it was intended or controlled by him. He lost control of the manoeuvre. The force which propelled the plaintiff into the floor was not force used by or intentionally applied by Constable Austernin.
  1. [110]
    A “slip” was added at trial by Constable Austernin in two of his descriptions of how he fell. The plaintiff’s counsel submitted that I cannot be satisfied that there was a slip. I accept that submission. A slip is not mentioned in any earlier statements put into evidence. The addition of the mechanism of a slip is consistent with a reconstruction of events which have become difficult to recall. The plaintiff’s counsel did not put to the constable that he was mistaken or that his evidence was a reconstruction. Nevertheless, I am not satisfied that there was a slip involved because it is not corroborated in Constable Austernin’s evidence from 2008. The plaintiff’s counsel submitted that I should find that the plaintiff was thrown without warning. That is a submission that I should find two things. I accept that the plaintiff was not warned that Constable Austernin intended to put the plaintiff to the floor. It was not put to Constable Austernin that he threw the plaintiff to the ground. I am not satisfied that there was a throw. I reject the submission that the plaintiff was thrown to the ground.
  1. [111]
    The mechanism most likely to have caused the Colles’ fracture, which the plaintiff was found next day to have sustained, is the mechanism of a fall to the floor with an outstretched left hand. The plaintiff remembered Constable Austernin to have been holding his left arm when he hit the ground. If that recollection is correct, the plaintiff’s left wrist fracture was unlikely to have occurred when he fell to the floor. The plaintiff’s counsel accepted that it would be improbable that the left hand would strike the ground outstretched if the plaintiff’s recollection was accepted as correct. But the constables’ evidence was to the contrary and supports the case for the plaintiff that his left arm was unrestrained by Constable Austernin and was free to strike the floor outstretched. Their evidence is that the right wrist was cuffed and Constable Austernin’s evidence was that he held the cuffs. It follows that if I accept the evidence of the constables, the plaintiff’s left arm was not restrained by either constable during the plaintiff’s fall. I am satisfied that the plaintiff was wrong in recalling that neither wrist was cuffed before he fell to the floor and was wrong in recalling that his left wrist was held by Constable Austernin as they fell. I am satisfied that the plaintiff had an unreliable recollection of the events in his home relating to the battery.

First issue: Did Constable Austernin then have reasonable grounds for suspecting that the absent woman or child was in danger of personal injury?

  1. [112]
    The plaintiff concedes that Constable Austernin had reasonable grounds for suspecting that an act of domestic violence had been committed. The first issue is whether Constable Austernin had reasonable grounds for suspecting that the absent woman or child was in danger of personal injury when he commenced to take the plaintiff into custody. The defendants submit[92] that Constable Austernin had reasonable grounds for suspecting danger of personal injury to the plaintiff’s partner and child.
  1. [113]
    There was evidence by Constable Austernin of a move or push past by the plaintiff in the direction of Constable Campbell. But the evidence was that the plaintiff’s movement occurred after Constable Austernin began to take the plaintiff into custody. It is less feasible to consider any suspicion of danger of personal injury to Constable Campbell as the condition precedent for taking the plaintiff into custody because any arguable movement giving reason to suspect danger to Constable Campbell occurred after Constable Austernin began his process of taking the plaintiff into custody. The defendants’ submissions ignored the suspicion of personal injury to Constable Campbell and addressed only the grounds for suspecting danger of personal injury to the plaintiff’s partner and child.
  1. [114]
    Reasonable grounds for suspecting that a person is in danger of personal injury by the respondent is the issue. It is very different from the orthodox issue in civil litigation of sufficient evidence to justify a finding on the balance of probabilities that a future event will occur. A “danger of personal injury” is not the same as a likelihood of personal injury. The search for reasonable grounds for suspecting a danger of personal injury is not a search for reasonable grounds for concluding that there will probably be personal injury unless the respondent is taken into custody.
  1. [115]
    The defendants concede that it is an objective test whether Constable Austernin had reasonable grounds for suspecting a danger of personal injury by the plaintiff to the plaintiff’s partner or child. I was given references to statements in Ferguson v State of Queensland & Anor [2007] QSC 322 concerning Section 198 of the Police Powers and Responsibilities Act 2000 (Qld). The statute under consideration was different. The condition precedent in Ferguson for arresting a person without warrant was different from the condition precedent for taking the plaintiff into custody. I respectfully adopt the observations at [130] where Lyons J, as her Honour then was, cited Misel v Teese.[93] Applying that principle to the statute before me, reasonable grounds for suspecting that a person is in danger of personal injury would exist where suspicion was based on certain facts which, if they actually existed, were such as would lead an ordinary prudent and cautious person in the position of Constable Austernin to the conclusion that the plaintiff’s partner or child were in danger of personal injury by the plaintiff.  The danger need not be imminent.[94]
  1. [116]
    The facts as I find them and as they would have appeared to a person in the position of Constable Austernin when he determined to take the plaintiff into custody were:
  1. There had been a triple 0 call that a male and female had been heard fighting at that house, a child screaming and a male voice had been heard to yell “I’m going to kill you”, and the house … had gone into darkness;
  1. The two constables arrived at the plaintiff’s home on a Sunday at 10.15pm;
  1. One constable knocked several times and only one person, the plaintiff, emerged and came to the door;
  1. The constables identified themselves to the plaintiff and advised that they were there in relation to a domestic dispute and asked to come in;
  1. The plaintiff having opened the main front door then failed to open the front screen door, saying that he could not find the key;
  1. The delay at the front screen door was for sufficiently long to reasonably cause a suspicion that the plaintiff was deliberately delaying;
  1. Only after Constable Austernin had warned that he might force the front door did the plaintiff advise that the back door was open;
  1. Once Constable Austernin had entered through the back door he asked the plaintiff for the whereabouts of the other occupants and the plaintiff said “I don’t know”;
  1. As Constable Campbell searched the house in a cursory way, the plaintiff advised Constable Austernin that “he’d had a domestic and threw hot water on his partner.” Constable Austernin had reasonable grounds for suspecting that an act of domestic violence had been committed. That is conceded.
  1. Constable Austernin asked the whereabouts of the plaintiff’s injured partner and the plaintiff said “I don’t know, gone to find a doctor”.
  1. Few doctors are open for business at 10.15pm on a Sunday;
  1. Constable Austernin removed a beer bottle from the sofa on which the plaintiff was seated the plaintiff started to argue and carry on about the beer bottle. The plaintiff saw an empty can on the lounge and asked “why don’t you move that as well?”
  1. Constable Campbell indicated to Constable Austernin that her search had not revealed any other persons in the house;
  1. The constables had by that time been unable to establish the whereabouts of the injured partner or the absent child;
  1. The plaintiff was intoxicated and argumentative;
  1. The constables could not then be reasonably satisfied that the plaintiff was not wanting to cause further personal injury to his partner;
  1. The constables could not then be reasonably satisfied that the plaintiff’s partner and child were able to keep away from the plaintiff if he wanted to cause them personal injury; and
  1. It was reasonable to suspect that if the plaintiff’s child and injured partner were at liberty, they might return soon to the house.
  1. [117]
    I am satisfied that Constable Austernin determined to take the plaintiff into custody when the plaintiff was seated on the edge of the sofa after the events outlined above were apparent. He then advised the plaintiff words to the effect that he was detaining him for committing an act of domestic violence. There were then reasonable grounds for suspecting that the plaintiff’s absent partner and daughter were in danger of personal injury by the plaintiff.
  1. [118]
    The plaintiff then became physically agitated and more verbally aggressive. The degree depends on which parts of the constables’ evidence I accept. I give the plaintiff the benefit of the doubt to the extent of declining to be satisfied by Constable Austernin’s evidence of the plaintiff’s rocketing towards Constable Campbell’s direction as it was not matched by the statement Constable Austernin made or the QP9 he approved in 2008. But I accept that the plaintiff stood up and that there was more verbal complaint by the plaintiff, that he remained standing after being directed to sit back down and that he physically tensed and changed position in a way that would have appeared to Constable Austernin to be consistent with a desire by the plaintiff to be uncooperative. I accept that these acts occurred, at the latest, after the first cuff was placed on his right wrist and before Constable Austernin formed an intention that it would be appropriate to put the plaintiff to the floor. He attempted a push pull movement. Violent movement by the plaintiff in resisting being cuffed on the left wrist led to both men falling to the ground. Soon after being told that he was being detained, the plaintiff said words to the effect that he had done nothing wrong, that his partner had cheated on him and had an affair, that he had let the police into his house and that they had no right to detain him.
  1. [119]
    That further uncooperative conduct would have been an additional reasonable basis for then suspecting that the plaintiff was volatile and that the plaintiff’s partner or child was in danger of personal injury by the plaintiff.
  1. [120]
    Constable Austernin had “reasonable grounds for suspecting” that a person was in danger of personal injury by the plaintiff when he took the plaintiff into custody.

Second issue: Did Constable Austernin throw the plaintiff to the floor?

  1. [121]
    I have given reasons above[95] for preferring the evidence of Constable Austernin about how the plaintiff ended on the floor.
  1. [122]
    The plaintiff was standing after his right arm was cuffed and he moved uncooperatively, consistently with an intention to resist. Constable Austernin formed the intention of using a controlled manoeuvre to take the plaintiff to the ground: “the push-pull method to get him to the floor”. The two men fell because the plaintiff tried to pull away from Constable Austernin. Constable Austernin’s method would not have involved the plaintiff’s uncontrolled fall to the floor.
  1. [123]
    I reject the evidence of the plaintiff that he was thrown to the floor. I am satisfied that the plaintiff has a poor memory of the sequence of events between his standing from the couch and the completion of handcuffing as he lay on the ground.
  1. [124]
    Constable Austernin fell to the floor with the plaintiff in the course of the plaintiff’s resisting the constable’s placing a second handcuff on him and both men fell because of the plaintiff’s resistance.

Third Issue: Was Constable Austernin then using only “such force as is reasonable and necessary”?

  1. [125]
    At trial, the force in issue was the Constable’s force which led to the plaintiff’s going to the floor. For reasons explained below, I am satisfied that the left wrist fractured when the plaintiff fell to the ground before the second handcuff was applied to his uncuffed left wrist.
  1. [126]
    Counsel for the plaintiff submitted[96] that:
  1. The facts of Hamilton v State of New South Wales (No.13) [2016] NSWSC 1311 are strikingly similar even perhaps to the type of restraint which the police officer attempted to apply;
  1. At paras 172 and 173 the court observed that the failure to specifically intend the precise consequences of a violent act does not necessarily lead to the conclusion that the force was reasonably necessary;
  1. Use of a “learned and accepted technique” for the control of a violent offender is relevant but not decisive as to whether the force was reasonable.
  1. [127]
    I reject the submission that the factual scenario is strikingly similar. I reject the further submission that the similarity is even down perhaps to the type of restraint which the police officer attempted to apply. The relevant findings in Hamilton appear from para [116].  Not only did Hamilton offer no resistance whatsoever, he was grabbed without warning by his left arm and swung around into a wall and forced down onto a bench.  He believed he was being mugged.  The purpose of the manoeuvre was to inflict pain on Hamilton to extract compliance from him as a suspect.  The specific result of his collision with the wall was unintended.  The police officer gave evidence in Hamilton that he applied the “arm bar take down” in response to a perception that he needed to defend himself. That is somewhat similar to a part of Constable Austernin’s evidence. Constable Austernin may have applied a straight arm bar before the plaintiff fell. But that evidence by the police officer in Hamilton evidence was rejected.  It is clear from the finding that the rejection was of both propositions: that he needed to defend himself and that it was an “arm bar take down”.  I reject the implied submission that the precise consequence, namely the plaintiff’s striking the floor, was a consequence of a violent act by Constable Austernin.  On the contrary, my finding was that Constable Austernin was attempting an act which would have involved a controlled taking down of the plaintiff to the floor until that was interrupted by the plaintiff’s attempt to pull away.  I accept that the fact that a police officer attempts to apply a learned and accepted technique can be relevant to the issue of reasonableness though not decisive.  It is relevant that the method Constable Austernin intended to use is a method he had been trained to use with a view to minimising the risk of injury. To attempt a controlled take down was reasonable.
  1. [128]
    The defendants have discharged their onus. I am satisfied that Constable Austernin was using such force as was reasonable and necessary.

Fourth issue: Did Constable Austernin falsely imprison the plaintiff?

  1. [129]
    I am satisfied for the reasons above that when Constable Austernin took the plaintiff into custody he then had reasonable grounds for suspecting that the absent woman or child was in danger of personal injury. It follows that he did not then falsely imprison the plaintiff.

Fifth issue: Did Constable Austernin commit battery taking the plaintiff to the floor?

  1. [130]
    Constable Austernin used only such force as was reasonable and necessary when taking the plaintiff into custody, for the reasons given above. It follows that his acts which would otherwise have constituted battery were justified. He did not commit a battery.

Sixth issue: Did the plaintiff’s fracture occur when the plaintiff was taken to the floor by Constable Austernin?

  1. [131]
    Or was it at some other time during the day or night? The plaintiff bears the onus that it occurred when he was taken to the floor.
  1. [132]
    The defendants’ counsel submitted at paragraph 31 of her outline, in effect, that the plaintiff’s purported recollection was tailored at trial to match the later medical reports; that medical opinion was to the effect that such a fracture probably occurs falling to the floor with an outstretched hand. The defendants’ counsel further submitted:
  1. It is accepted that the plaintiff is holding his wrist in what appears to be pain at the watch house.  However, as the mechanism of injury is likely to be 99.9% (ex 13) caused by a fall onto outstretched hand, in circumstances where the plaintiff is by his own admission intoxicated, affected by alcohol, disorientated by having being woken from bed, your honour cannot be satisfied that such a fall did not occur at a time prior to the police attending at the premises.
  1. [133]
    I satisfied by the orthopaedic evidence that the fracture was likely to have occurred by a fall onto the outstretched left hand. I am satisfied that such a fall onto the left outstretched hand is consistent with the evidence of the constables of what they observed when the plaintiff fell to the ground with his right hand restrained. I am satisfied that the plaintiff did not fall onto his left hand at the watch house or in the police vehicle. He would have complained of it if he had. I am satisfied on the balance of probabilities that the fracture occurred when the plaintiff was taken to the floor by Constable Austernin.
  1. [134]
    This finding would have been significant if the constable had used more than such force as was reasonable and necessary and thus been deprived of his defence to the tort of battery. It would have followed that the defendants would have been liable for damages for personal injury caused by the battery.

Seventh issue: Causation of the plaintiff’s injuries.

  1. [135]
    This issue and other issues related to quantum of damages and aggravated damages are unnecessary to decide as the plaintiff has failed to establish the liability of the defendants. I should consider the issues on the hypothesis that my decision on liability is successfully appealed.
  1. [136]
    I reject, for reasons expressed above, the submission for the defendants that the plaintiff failed to establish that the wrist was fractured in the fall to the floor at his house.
  1. [137]
    Since 30 March 2008 the plaintiff has suffered lost income, depression, anxiety and possibly a post-traumatic stress disorder. The seventh issue is whether these injuries have been caused by the Constable’s actions. The defendants raised some plausible arguments against a finding that the plaintiff’s psychiatric symptoms were caused by the defendants. It requires a consideration of the chronology of events, symptoms and treatment.
  1. [138]
    On 31 March 2008 the plaintiff attended Ipswich Hospital emergency department at 12:30pm with a sore and swollen wrist, bruising and skin abrasions on both wrists.  A finding was made of a possible fracture involving the dorsal aspect of the distal radius of the left wrist.
  1. [139]
    On 3 April 2008 the plaintiff received an email from a Mr Dewhurst.  The email[97] advised:

I have one more meeting reference, what visa etc. you will need and I should have everything squared away, As I said previously the 1800 for the first 4 weeks is confirmed and return flight with accommodation, the agreement will be a 1 month trial for both parties and then a further 5 month assessment, this is normal, it allows both you and the nautic star to have an out if people wish.

The projects that you will be having fun with are the Kharima, a new 40ft power and sail cat and the 14 Atlantic Challenge Boat that will be equipped with 3 by 515hp inboards to try and break the recode, from New York to London.

I should have a start date in the next 5 days …

  1. [140]
    The Plaintiff had a consistent work record. He had worked for a substantially unbroken period of 21 years as a fibreglasser. The employment schedule in evidence shows that net earnings were $39,998.00 from 1 July 2007 to 30 March 2008, a period of 39 weeks. This equates to $1,025.58 net per week. In 2007 he earned approximately $800 per week net. His earnings in 2008 were higher but inflated by holiday pay. He had allergies to some chemicals used in that occupation and wanted to avoid those chemicals. The potential job in the Peoples Republic of China was one which the plaintiff hoped would involve more supervision by him with less exposure to the relevant chemicals. There was no binding contract. The plaintiff’s counsel rightly accepted that one cannot be certain the job opportunity would have come to fruition, nor for how long it would have lasted. I am satisfied that, if the plaintiff had been employed in the Peoples Republic of China, it would have been for no less than 4 weeks and at AU$1,780.00 gross per week. The expenses of earning that income and the net income after tax were not the subject of evidence. The plaintiff had given his Australian employer notice of his intention to quit and his employment terminated within days after his injury. His counsel again rightly accepted that if the plaintiff had been forced to ask for reemployment by his former Australian employer, then one cannot be sure that he would have been re-employed.
  1. [141]
    Because of the wrist injury, the plaintiff could not have worked for at least six weeks, even as a foreman.[98] His injury meant he could not pursue such opportunity as he may have had in the Peoples Republic of China.
  1. [142]
    The plaintiff did not return to employment for two years or so.
  1. [143]
    On 22 May 2008 the plaintiff attended Ipswich Hospital physiotherapy complaining that his wrist was painful to use. 
  1. [144]
    On 27 October 2008 the plaintiff attended Dr Ratnam complaining that his six year old daughter jumped into his arms and that he fell backwards and jarred his lower back.  He was tender at L4/5 and had a restricted range of movement. 
  1. [145]
    On 6 November 2008 the plaintiff attended Dr Ratnam complaining that he was depressed, that he had been since March and that it was getting worse.  He advised that his wife ran off with his best friend, that he felt like crying, was not motivated, had trouble sleeping and felt guilty about hot water being spilt by accident on his wife.  He said they were both drunk at the time.  He complained of poor concentration.  He said that he did not feel like doing things he used to enjoy like tinkering with cars.  He said that he had not worked since March 2008 because of his left wrist when the police handcuffed him.  He said that as a result he lost his job.  Dr Ratnam diagnosed depression and prescribed Cymbalta to treat the depression.  He returned twice that month complaining that he had no improvement and the prescription was changed to Efexor.
  1. [146]
    On 16 February 2009 Dr Ratnam increased the Efexor dose. 
  1. [147]
    On 18 February 2009 a job capacity assessment was prepared for Centrelink which contained information reported by the plaintiff.  Relevantly, he had been attempting to contact two of his children from another relationship.  He had not seen those children for 10 years and Legal Aid had refused him aid and that was also having a negative impact on his situation.  He stated that his depression started in approximately March 2008, around the time of his family breakdown.  He stated he had spent the last four weeks in bed, only moving from there to attend to his daughter.
  1. [148]
    On 15 March 2009 the plaintiff suffered chest pain and vomiting after drinking heavily.  He missed his dose of Efexor at 3am and felt anxious.
  1. [149]
    On 14 April 2009 the plaintiff attended Dr Ratnam complaining of insomnia. 
  1. [150]
    On 2 June 2009 the plaintiff attended on Dr Ratnam.  He gave a history of falling down a large hole at a friend’s job site four weeks before injuring himself and he complained of pain in the left knee on the medial aspect.  On 22 July 2009 he saw Dr Ratnam again with a painful left knee and was diagnosed with depression.  A week later he attended Dr Ratnam who instituted a mental health care plan and referred the plaintiff to Ipswich psychology services.
  1. [151]
    On 30 July 2009 a job capacity assessment was conducted for Centrelink.  Barriers to employment were noted as including mood disorder, pain and stiffness in the knee joint when trying to stand, allergies preventing him from working in the fibreglass industry, financial distress which impacts upon mood, attempt to locate two children with whom he had lost contact and legal action for compensation following wrongful arrest and a wrist injury.  The plaintiff advised that he does not want to work in the fibreglass industry due to his allergy to products. 
  1. [152]
    On 13 August 2009 the plaintiff was diagnosed at Ipswich Hospital as suffering conductive hearing loss.  A left tympanotomy and stapedectomy were performed.  Next day he was certified unfit for work for a month due to deafness.  Before that month expired, the plaintiff received a Centrelink medical certificate of Dr Chan to the effect that he was unfit for work due to left hearing loss until 12 October 2009.
  1. [153]
    On 17 September 2009 the plaintiff attended Dr Fitzell, clinical psychologist presenting with depression and anxiety, sleeping 18 hours a day and unable to get motivated.  He complained that it was since he broke his wrist during an altercation with his wife from whom he separated that month.  He complained of nightmares of the police breaking his wrist, of not wanting to go outside and of feeling worthless, suicidal ideation, smoking cannabis daily, using speed and ecstasy and an allergy to boat materials.
  1. [154]
    On 10 November 2009 Dr Chan noted that the plaintiff had no concerns with hearing. 
  1. [155]
    On 27 November 2009 the plaintiff saw Dr Fitzell again.  He reported being terrified in crowds, that he had experienced panic attacks in the past but they had increased significantly following his arrest and that he has nightmares about his arrest.
  1. [156]
    In December 2009 the plaintiff attended on Dr Fitzell twice.  In January 2010 he attended on Dr Fitzell five times and on Dr Ratnam once.  In February 2010 the plaintiff attended on Dr Fitzell another four times.  Dr Fitzell reported on 24 February that the plaintiff had a “pattern of poor judgment and decision making resulting in law breaking behaviour” (the plaintiff had frankly advised Dr Fitzell of historical criminal conduct which resulted in a sentence of two years’ probation, a disqualification from driving for five years and imprisonment for three months for breach of probation, personal losses e.g. marital separation, loss of his house, estrangement from his children) and added life stress, as well as a strong sense of hopelessness.  Dr Fitzell reported that most recently a domestic dispute which resulted in Mr Dienaar sustaining a fractured wrist while being arrested by police, in addition to the subsequent break down of his relationship and loss of his job due to his injury, appears to have activated his beliefs and his distress.
  1. [157]
    On 26 March 2010 the plaintiff attended Dr Fitzell and reported, among other things, that he had significantly deteriorated again after an altercation with the police after he was pulled over for having a passenger without a seat belt and a child passenger in the wrong seat and that police were unfair to him and picked on him once they identified him as a person of interest. 
  1. [158]
    On 27 March 2010 the plaintiff attended Dr Ratnam for a prescription for Efexor and Temazepam.  On 29 March 2010 the plaintiff attended Ipswich Hospital for a left knee arthroscopy. 
  1. [159]
    In April 2010 the plaintiff attended Dr Fitzell three times, Dr Ratnam twice and underwent a job capacity assessment for Centrelink.  He indicated that the wrist injury was no longer having an impact but that he had become extremely withdrawn, fearful of crowds, a poor sleeper and unable to return to employment and that he had a breathing disorder which created problems working with fibreglass and that he no longer felt safe in that industry.
  1. [160]
    In May 2010 the plaintiff saw Dr Fitzell and said that Centrelink were supporting him with retraining and to get an apprenticeship and that his plan was to re-enter the work force 15 hours a week.  He felt more energetic and less hopeless but complained that he continued to experience anxiety. 
  1. [161]
    In June 2010 the plaintiff saw Dr Fitzell for his eighteenth and nineteenth sessions.  He reported on 4 June that his physical health was improving, that he had been doing part-time work for a friend and noticed that his mood had been better since then, that he was more motivated and not going back to bed.  On 25 June he had worked two days that week and three days the week before, he was exercising daily, experiencing improvements in his mood and sleep and was only rarely having distressing dreams. 
  1. [162]
    In August 2010 the plaintiff had his twentieth session with Dr Fitzell, he attended Dr Nandam, psychiatrist, and on 25 August had another job capacity assessment performed for Centrelink.  In that assessment he noted that he had a suspended driver licence until the end of October.  He reported that he left one job in the fibreglass industry which he held for three years because he was asked to pay child support. He explained in evidence that he had left that job to take another job one which the applicant for child support would not know about.  He reported to the Centrelink assessor that he wanted to only work for top money or to gain an adult apprenticeship in carpentry. 
  1. [163]
    On 20 July 2011 the plaintiff attended Dr Nandam, who reported that the plaintiff’s symptoms of PTSD had gone into partial remission and were no longer sufficient to qualify for the diagnosis under DSM-IV TR criteria and had no incapacity for work and no need for medication. I accept that evidence.
  1. [164]
    The defendants’ counsel submitted that the plaintiff’s psychiatric injuries were not caused by the defendants. The submission is:
  1. … the Court cannot be satisfied that the plaintiff suffered post-traumatic stress disorder as a result of the conduct of the first defendant.  By the plaintiff’s own admission, he was only distressed at the time following his detainment because of what he had done.   He was not distressed for any other reason necessarily including any perceived mistreatment by the first defendant.
  1. That is consistent with his early presentations to his general practitioner and reports to Job Capacity Assessor’s.  Further, whilst the plaintiff was evasive in his evidence, it is clear that the plaintiff has breached sufficient traffic laws for his licence to be suspended – inconsistent with his reported avoidance of contact with the police.
  1. Finally, a chronological review of the medical records suggests that the plaintiff first reported “PTSD-like” symptoms only occurred after he had made a decision to pursue a claim for damages.
  1. In accordance with the evidence of Dr Nandam the plaintiff’s major depressive symptoms were largely from discovering his partner had been cheating with his best friend and feeling guilty about pouring boiling water on his partner.
  1. If the Court is satisfied that the plaintiff’s mental health interfered with his capacity for employment following the event, then it is submitted that the depression is not causally related to the conduct of the officers.
  1. Any mental health difficulties bought about by the financial distress also does not relate.
  1. [165]
    Dr Nandam’s reports establish the nature of the psychiatric injury. The plaintiff suffered post-traumatic stress disorder. There is a plausible argument that his depression was caused by the stress of his wounding his partner, by her affair, by the loss of her company and the loss of their daughter. He also soon had a serious lack of financial resources. Those distressing events occurred at or from the same time as the plaintiff’s confrontation with the police. Dr Nandam’s diagnosis of PTSD survived challenge under cross-examination.[99] PTSD was caused by the battery and imprisonment.   The late perception of the PTSD like symptoms appeared suspiciously to coincide with the plaintiff’s pursuit of compensation. I accept the evidence of Dr Nandam that the condition commenced almost immediately after the incident but was not perceived and treated until much later.  The condition was severe until treatment commenced in approximately mid 2009.
  1. [166]
    Dr Fizell’s treatment over twenty visits was concerted and intensive. Dr Fizell had to deal with preliminary issues such as the plaintiff’s severe lack of finances, lack of sustenance and extremely low mood before moving on to treatment specifically related to post traumatic stress disorder.

Eighth issue: Quantum of damage for personal injuries.

  1. [167]
    General damages: Damages for pain, suffering and loss of the amenities of life are assessed pursuant to s 61 of the Civil Liability Act 2003, as in force at 30th March 2008 (reprint 2A).  This involves assigning a single injury scale value (“ISV”) to the injuries.  The ISV is assigned by reference to schedule 4 to the repealed Civil Liability Regulation 2003 as in force at 30th March 2008 (reprint 1A), which prescribes an ISV range for individual injuries.  The relevant items in the schedule are as follows: -

item 13, “Minor mental disorder”. ISV range of 0 - 1

item 108, “Minor wrist injury”, ISV range of 0 - 5

  1. [168]
    Schedule 3, s 3 of the Regulation requires, for a case such as this involving multiple injuries, that the “dominant injury” be identified. This is the injury having the highest ISV range. In this case, that is the wrist injury. Schedule 3, s 3(1) provides that the range of ISVs for the dominant injury must be “considered”, and s 3(2) provides that the ISV for the multiple injuries may be higher in that range than the ISV the court would assess for the dominant injury alone.
  1. [169]
    Item 108 is designed to meet the case of a wrist injury involving some minor but ongoing disability. An ISV of 3 would ordinarily seem appropriate. The post-traumatic stress disorder was initially extremely severe and the effect of injuries on the plaintiff’s life was devastating. For that reason the plaintiff submits for an ISV of 4 and corresponding general damages award of $4,000.00.
  1. [170]
    I accept the submission.
  1. [171]
    Past economic loss: Uncertainty about the job overseas is a very relevant factor. Even assuming that the plaintiff had received the job, obtained the visa and worked more than the minimum four week trial period, the duration of his employment overseas was uncertain. The hiatus period of unemployment upon his hypothetical return to Australia is uncertain, particularly as he was determined to avoid employment which would expose him to chemicals commonly used by fibreglasser and to which he was allergic. A knee injury supervened. It would have reduced his ability to perform work. The knee injury may have required an absence of employment in about May 2009.[100] In August 2009 the ear surgery would have interfered with his capacity to work for two months. The injured knee would have interfered with his capacity to work as a fibreglasser for two to three months after the surgery on 29 March 2010.[101]
  1. [172]
    Some undisclosed income was earned from Sunfab, at the latest by June 2010.
  1. [173]
    The defendant submits that one week’s lost income of $800 is appropriate. The plaintiff submits that two years’ lost income at net $1,025 weekly is appropriate.
  1. [174]
    I assess past economic loss as the equivalent of two years’ loss of income at $800 per week net: $83,200.
  1. [175]
    Interest on past economic loss: Interest should be calculated on that component of past economic loss, less the Centrelink benefits received (which as per Exhibit 7 totalled for this period less than $11,196.00 + $12,038.00 = $23,234.00). It follows that interest should be calculated on an amount of $59,966.
  1. [176]
    The plaintiff’s past economic loss was incurred by 30 March 2010. It is appropriate to allow interest from 30 March 2009 to the date of judgment. Since that hypothetical judgment would be after appeal, I need not calculate the interest.
  1. [177]
    Past loss of superannuation: An allowance for the loss of employer superannuation contributions for the past should be calculated at 9%, representing the applicable rate under the Superannuation Guarantee Charge Act (1992) (Cth) over the applicable period, of the allowance for past economic loss ($83,200.00) = $7,488.00.
  1. [178]
    Special damages: Special damages are established by exhibit 8 – hospital refund ($630.25), exhibit 9 – Medicare refund ($3,062.55), exhibit 10 – pharmaceutical expenses ($154.80) and exhibit 11 – travel expenses ($340.10).  These total $4,187.70.

Ninth issue: Quantum of aggravated damage and damage for deprivation of liberty.

  1. [179]
    This issue is unnecessary to decide as the plaintiff has failed to establish the liability of the defendants. The defendants contest that an award of aggravated damage is payable “as the Court cannot be satisfied, that the first defendant’s actions were an unlawful intentional act done with the intent to cause personal injury as is required by section 52 of the CLA”. If I am mistaken in finding that there was no deliberate throw, I must assess an award for aggravated damages. The defendants contest that an award of damages for deprivation of liberty is due on the basis that the constable was entitled to take the plaintiff into custody. If the plaintiff was wrongly arrested the defendants submit that an amount of no more $5,000.00 should be awarded as damages.
  1. [180]
    I assess this damage on the hypotheses that there were reasonable grounds for suspecting that an act of domestic violence has been committed, but there were not reasonable grounds for suspecting danger of further personal injury by the plaintiff and that Constable Austernin threw the plaintiff to the ground knowing that involved an unacceptable risk of personal injury. Because I must deal with two hypotheses, I should assess the damages for aggravated damages and for deprivation of liberty separately.
  1. [181]
    The plaintiff submits that the quantum for deprivation of liberty, including aggravated damages, rolling the figure into one is $20,000.[102]
  1. [182]
    The plaintiff’s submission was based primarily upon Bulsey & Anor v State of Queensland[103] where an award of $80,000 was held to be manifestly inadequate and an award of $160,000 was made for damages, including aggravated damages, for assault, battery and false imprisonment during and after wrongful arrest.  The facts in Bulsey were significantly worse than the facts in the case before me. The distress and the humiliation would have been significantly worse. The circumstances were:
  1. Mr Bulsey would have gone to the police station if asked, whereas the plaintiff resisted detention, hypothetically correctly;
  1. It was the morning after serious damage had been done to public buildings in Mr Bulsey’s island community;
  1. Mr Bulsey was grieving for the death of a close friend, who had earlier died in police custody;
  1. The police rejected Mr Bulsey’s heavily pregnant wife’s offer to open the door, preferring to brandish arms, shout orders and break through;
  1. Mr Bulsey was arrested in bed by a masked armed swat team and thrown naked to the floor;
  1. Mr Bulsey was innocent of any offence, whereas the plaintiff was reasonably suspected of having committed an act of domestic violence.  Having poured boiling water on his partner, the plaintiff thought that he would be taken away and was sure he was going to be arrested.[104]
  1. Mr Bulsey was arrested for highly publicised offences;
  1. Mr Bulsey was very scared, worried about his wife’s pregnancy and taken away in an aircraft. The plaintiff had the confidence to repeatedly complain that the handcuffs were too tight and to warn the constables that he would have their badges;
  1. Mr Bulsey was taken into the street in a towel;
  1. Mr Bulsey’s wife and children witnessed as he was dragged from his home and his wife protested he should be left alone;
  1. He was embarrassed to have police dress him in trousers in the street;
  1. The period of Mr Bulsey’s imprisonment continued for days; and
  1. Mr Bulsey was not otherwise to be compensated for the violence done to him, his damages for personal injury having been limited to $5,000 for his psychological injury. The plaintiff will hypothetically be compensated for the injuries resulting from being deliberately thrown to the ground.
  1. [183]
    Contrasting levels of distress, humiliation, mental suffering and indignity is an unfamiliar task. Considering compensation for distress and mental suffering is familiar enough, but considering compensation for indignity and humiliation is not. Contrasting the plaintiff’s level of all four with the level of all four of the innocent, compliant, frightened, grieving Mr Bulsey, who was treated as a dangerous criminal by an armed SWAT team in front of his family, who was concerned for his heavily pregnant wife, who was distressed through no fault of his own and who was kept for days, is difficult. I assess the plaintiff’s hypothetical damages under this head at $20,000, being $5,000 for aggravated damages and $15,000 for deprivation of liberty.

Footnotes

[1]Section 69 of the Domestic and Family Violence Protection Act 1989 (Qld) (repealed).

[2]Statement of claim filed 29/03/11 par 5(c).

[3]Amended statement of claim filed 28/03/14 par 5A.

[4]Further amended statement of claim filed 24/10/16 par 5A.

[5]T4-17 line 39.

[6]Grosse v Purvis [2003] QDC 151 at [466].

[7]Bulsey & Anor v State of Queensland [2015] QCA 187 at [4]. 

[8]T3-41, l 33.

[9]Exhibit 21.

[10]Exhibit 19.

[11]Exhibit 17.

[12]Exhibit 18.

[13]T2-72 line 17.

[14]Plaintiff’s Outline of Submissions par 3.

[15]Plaintiff’s Outline of Submissions par 5.

[16]T2-73 l 37.

[17]T3-6 l 37-38.

[18]T3-28 l 26-28.

[19]Exhibit 22.

[20]T3-52 l 36.

[21]Plaintiff’s outline of submissions [6].

[22]Exhibit 17.

[23]Plaintiff’s outline of submissions [9].

[24]T3-7

[25]Exhibit 17.

[26]Plaintiff’s outline of submissions [10].

[27]Exhibit 19 par 12.

[28]Transcript 2-106 line 12 - 45

[29]Transcript 3-17 line 37

[30]Transcript 3-37 line 22

[31]T3-17 line 37.

[32]Plaintiff’s outline of submissions paragraphs 16 to 18.

[33]Transcript 2-110 lines 12 - 20

[34]Transcript 1-28 lines 27 - 30

[35]Transcript 2-110 line 23

[36]Transcript 1-23 lines 19 - 20

[37]T3-33 line 2.

[38]Plaintiff’s outline of submissions par 14.

[39]T3-18 lines 40-43.

[40]Exhibit 18 line 141.

[41]Exhibit 18 lines 149 to 155.

[42]Exhibit 18 line 403.

[43]Exhibit 3 report Dr Gillett 12 November 2010 p 2.

[44]Exhibit 3 report Dr Coleman 29 November 2011.

[45]Statement of claim filed 29/03/11 par 5(c).

[46]T2-55 line 25 and lines 45-46.

[47]T33 lines 4-8.

[48]T34 lines 20-28.

[49]Exhibit 4 Ipswich Hospital records pp 113-140.

[50]T77 line 36.

[51]T2-22 line 12 to T2-23 line 5.

[52]Exhibit 7.

[53]T73 lines 1 to 5.

[54]Exhibit 18 lines 69-76.

[55]T3-6 lines 10-13.

[56]Exhibit 17.

[57]T3-6 line 11.

[58]T3-19 lines 11-18.

[59]Exhibit 22.

[60]Exhibit 19.

[61]Exhibit 17.

[62]T3-6 line 26.

[63]T3-6 lines 37 – 38.

[64]T3-28 lines 26- 28.

[65]T2-72 line 36 to T2-73 line 3.

[66]Exhibit 18.

[67]T1-42 line 45 to T1-45 line 4.

[68]T1-42 line 45.

[69]Exhibit 19.

[70]Exhibit 21.

[71]T3-7 to T3-8, l 35.

[72]T3-7 lines 45 to T3-8 line 35.

[73]T3-46 line 39.

[74]T3-22 lines 36-42.

[75]T3-23 line 11.

[76]T3-24 line 5.

[77]T3-30 line 31.

[78]T42 line 20

[79]T3-32 line 11.

[80]T3-45 line 10.

[81]T3-45 line 5.

[82]T3-45 line 8.

[83]T3-45 line 13.

[84]Exhibit 17.

[85]T2-72.

[86]T2-109 line 36.

[87]T2-108 line 26.

[88]T2-68.

[89]Exhibit 19 par 12.

[90]T 3-45 lines 1-15.

[91]Exhibit 19.

[92]Defendants’ Closing submissions pars 18-22

[93][1942] VLR 69 at 72. 

[94]Lewin v Button [1996] QCA 073, p 4 per Davies JA, Pincus and McPherson JJA agreeing.

[95]Analysis of the contentious evidence of battery.

[96]T4-13, ll 30-44.

[97]Exhibit 14.

[98] T2-32 lines 29-39.

[99]T1-100 line 20; T1-101 line 3; T1-102 line 26; T1-103 line 6.

[100] Ex 3 – Ratnam’s records:p6-7

[101] T2-37:L15

[102]T4-17 line 39.

[103][2015] QCA 187.

[104]T1-88 lines 12-14.

Close

Editorial Notes

  • Published Case Name:

    Rolph James Cornelius Dienaar v Herman Austernin and State of Queensland

  • Shortened Case Name:

    Dienaar v Austernin

  • MNC:

    [2018] QDC 262

  • Court:

    QDC

  • Judge(s):

    Andrews DCJ

  • Date:

    13 Dec 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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