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Walker v State of Queensland[2022] QDC 168

Walker v State of Queensland[2022] QDC 168

DISTRICT COURT OF QUEENSLAND

CITATION:

Walker v State of Queensland [2022] QDC 168

PARTIES:

RICHARD SCOTT WALKER

(plaintiff)

v

STATE OF QUEENSLAND

(defendant)

FILE NO/S:

1135/18

DIVISION:

Civil

PROCEEDING:

Hearing for assessment of damages

ORIGINATING COURT:

Brisbane District Court

DELIVERED ON:

5 August 2022

DELIVERED AT:

Brisbane District Court

HEARING DATE:

12 – 14 April 2022

JUDGES:

Byrne QC DCJ

ORDERS:

  1. I assess damages, including aggravated damages, in the total amount of $30,000.
  2. I allow interest pursuant to section 58 of the Civil Proceedings Act 2011 from 10 September 2014 to the date of judgment.
  3. I will hear the parties as to costs.

CATCHWORDS:

TORTS – FALSE IMPRISONMENT – INERFERENCE WITH PERSON – ASESSMENT OF DAMAGES – CIVIL PROCEDURE – TRIAL – where a jury in the District Court found for the defendant in claims for malicious prosecution and false imprisonment – Where the Court of Appeal allowed the plaintiff’s appeal on the false imprisonment claim only and remitted the matter for an assessment of damages – where the plaintiff is seeking damages for general, aggravated and exemplary damages – where the plaintiff was unlawfully detained by police while he believed his father was about to pass away in hospital – where police would not allow the plaintiff to leave to be with his father – where police officers believed they were acting according to their training and mandated requirements – whether the plaintiff suffered emotional distress from the false imprisonment – whether the plaintiff suffered reputational damage due to false imprisonment – whether the plaintiff should be awarded damages for injury to liberty – whether exemplary damages are appropriate

LEGISLATION:

Evidence Act 1977 (Qld)

Police Powers and Responsibilities Act 2000 (Qld)

CASES:

Adams v Kennedy [2000] 49 NSWLR 78

Beckett v State of New South Wales [2015] NSWSC 1017

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

Cassell & Co Ltd v Broome [1972] AC 1027

Coleman v Greenland, Donaldson, Powers etc & The State of Queensland [2004] QSC 037

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

Cunningham v Traynor [2016] WADC 168

Eaves v Donnelly [2011] QDC 207

Gray v Motor Accident Commission [1998] 196 CLR

Hemelaar & Red v Walsh, Gough & State of Queensland [2018] QDC 151

Lamb v Cotogno [1987] 164 CLR 1

Majindi v Northern Territory of Australia & Ors [2012] 31 NTLR 150

McDonald v Coles Myer (trading as K-mart Chatswood [1995] NSWCA 67

Re Bolton; Ex parte Beane [1987] 162 CLR 514

State of New South Wales v Delly [2007] 70 NSWLR 125

State of New South Wales v Ibbett [2006] HCA 57

State of New South Wales v Smith [2017] 95 NSWLR 662

State of Western Australia v Cunningham (No. 3) [2018] WASCA 207

Walker v State of Queensland [2020] QCA 137

Whitfield v De Lauret & Co Ltd [1920] 29 CLR 71

Wotton v State of Queensland (No. 5) [2016] FCA 1457

COUNSEL:

Mr. M. de Waard for the plaintiff.

Mr. D. Favell for the defendant.

SOLICITORS:

Robinson Locke Litigation Lawyers for the plaintiff.

Crown Solicitor for the defendant.

Introduction

  1. [1]
    On 28 March 2018, the plaintiff filed a Claim seeking damages for both Malicious Prosecution and for False Imprisonment, together with interest and costs.  The claims were heard before Koppenol DCJ sitting with a jury. On 29 August 2019, the jury found for the defendant on both Claims, and judgment was entered accordingly. 
  2. [2]
    The plaintiff successfully sought leave to appeal. On 23 June 2020, the Court of Appeal granted the appeal, ordered judgment for the plaintiff on the False Imprisonment claim only, remitted the proceedings to the District Court for an assessment of damages and made consequential costs orders.[1]  On the remitted hearing for the assessment of damages the plaintiff abandoned his request for trial by jury. 

The pleadings

  1. [3]
    By his statement of claim, at paragraph 47, the plaintiff claimed $120,000 for false imprisonment, pleaded as follows:

“… Mr Walker has suffered and claims the following damages for False Imprisonment:

  1. (a)
    General damages of $30,000.

Particulars

The matters relied on in support of the claim for general damages are:

  1. The restriction on Mr Walker’s liberty during the False Imprisonment;
  2. Distress, injury to the plaintiff’s feelings, embarrassment and reputational damage caused by:
    1. (A)
      being detained on the roadside in view of those passing by;
    2. (B)
      having the Car towed;
    3. (C)
      having the Car impounded.
  3. The reasons in paragraph 6 to 29 above;
  4. Mr Walker being prevented from spending time with his father in Hospital when Mr Walker knew that his father was dying;
  5. Mr Walker being prevented from the opportunity to say a final goodbye to his father;
  6. The concern Mr Walker experienced with respect to his father whilst at the Roadside;
  7. The distress and inconvenience that Mr Walker experienced not being able to leave with his brother to take Mr Walker with him to the Hospital (sic);
  8. the distress Mr Walker experienced by witnessing the Traffic Accident;
  9. The lack of any action by Officer Ahrens or Officer Brett to have the Charge withdrawn and the Car released from impoundment;
  10. The lack of any apology by Officer Ahrens or Officer Brett.
  1. (b)
    Aggravated damages of $40,000.

Particulars

The matters relied on in support of the claim for aggravated damages are:

  1. The particulars in support of general damages at 46(a) above;
  2. The reasons in paragraph (including particulars in those paragraphs) 32, 35 and 36 above.
  1. (c)
    Exemplary damages of $50,000.

Particulars

The matters relied on in support of the claim for exemplary damages are:

  1. The particulars in support of aggravated damages at paragraph 46(b) above;
  2. Officer Ahrens acted callously towards Mr Walker as set out at paragraph 33(i) above.
  1. [4]
    Paragraph 46 of the Statement of Claim pleaded the loss said to have been caused by the Malicious Prosecution of the plaintiff. Paragraph 46(a) pleaded a claim for damages said to have been caused to the motor vehicle resulting from the impoundment. Paragraph 46(b) pleaded a claim for legal costs incurred in defending the Proceedings.
  2. [5]
    Paragraphs 6 – 29 contained factual allegations, and need not be reproduced as the findings in this judgment will deal with those allegations. Paragraphs 32, 35 and 36 were all pleaded in relation to the Malicious Prosecution claim.
  3. [6]
    Paragraph 33(i) was in the following terms:

“Officer Ahrens acted callously towards Mr Walker by:

  1. Knowing that Mr Walker’s father was in Hospital and dying and offering no sympathy or support and not taking into account his actions;
  2. Telling Mr Walker that the Traffic Accident would not have happened if he had driven normally …;
  3. Refusing to take the key to the Car when Mr Walker offered to give it to him …;
  4. Not allowing Mr Walker to leave to go to the Hospital with his brother …;
  5. Forcing Mr Walker to remain at the Roadside when Officer Ahrens knew (that Mr Walker’s father was in Hospital and was dying and that Mr Walker was in a hurry to get to the Hospital).”
  1. [7]
    It can be seen that the pleadings for the False Imprisonment claim were heavily intertwined with the claim for the Malicious Prosecution. There was no attempt to replead the basis for the damages in light of the failure of that latter claim and the remittal to this Court, and some of the allegations cannot be supported on evidence admissible for this Claim.
  2. [8]
    By its amended defence the defendant, relevantly for the limited purposes of this assessment, pleaded a ground denying liability, denied liability for damage to the vehicle by dint of the operation of s 122(3) of the Police Powers and Responsibilities Act 2000 and asserted the amounts claimed were unreasonable.[2]
  3. [9]
    It is common ground that the individual police officers involved were protected from personal liability in the circumstances and that instead the State of Queensland is liable for anything they might have otherwise been liable for.[3] 

Factual summary

Agreed facts

  1. [10]
    The parties have agreed certain facts for the purpose of the hearing.[4] I treat those facts as proven.
  2. [11]
    At about 9.59am on 10 September 2014, the plaintiff was detained by Senior Constable Ahrens (“Ahrens”) and Constable Brett (“Brett”).  He was told he had been stopped because he had performed burnout. He denied doing that but accepted he had briefly lost traction. 
  3. [12]
    The plaintiff said he wanted to leave to be with his father who was dying and was currently in hospital.  The plaintiff said he was in a hurry to get back to the hospital.
  4. [13]
    I interpolate briefly that the Court of Appeal held that the Police Powers and Responsibilities Act 2000 did not authorise the detention of the plaintiff for those purposes.  Although the Court of Appeal found the plaintiff was unlawfully detained between 10.20am and 11.19am,[5]  for the purposes of this hearing the parties have agreed that the period of unlawful detention was between 10.16am and 11.19am.[6]  Therefore, it is also agreed that the plaintiff was lawfully detained until 10.16am that day. 
  5. [14]
    It is jointly agreed that while the plaintiff was lawfully detained[7] he gave police his father’s name and invited them to ring the hospital to confirm his father was there.  Ahrens rang the Sunshine Coast University Private Hospital and confirmed that the plaintiff’s father was there. Police then checked the plaintiff’s traffic and criminal history, they then consulted each other and decided to issue him with a Traffic Infringement Notice and to impound his vehicle for 90 days.
  6. [15]
    Police left their flashing lights on while at the roadside. A traffic accident involving a truck and three other vehicles occurred on the adjacent roadway and a woman was trapped in her car and others were injured.
  7. [16]
    It is also jointly agreed that from 10.15am onwards[8] Ahrens told the plaintiff his car would be impounded for 90 days for a “hooning offence”. The plaintiff denied any such offence, again said that his father was dying and that he was in a hurry to get back to the hospital. At one point Ahrens told him that the traffic accident would not have happened if he had driven normally.
  8. [17]
    Subsequently the plaintiff was given a Traffic Infringement Notice. During the period of the detention Ahrens had various interactions with the plaintiff, the effect of which was that he was to remain at the roadside until his car had been put on a tow truck and the necessary documentation had been completed.
  9. [18]
    The plaintiff’s father passed away on 12 September 2014.[9]

The oral evidence

Richard Scott Walker

  1. [19]
    The plaintiff’s father had been hospitalised on and off for the previous eight years.  The plaintiff spoke to him at the hospital on the night of 9 September 2014 by phone.  As his father sounded confused and because he could not get an understanding of what was happening with him, he decided to travel from his home in Darra to the hospital on the Sunshine Coast the next day.  He arranged to meet his brother at the hospital that next day, seemingly at about 10.30am. 
  2. [20]
    His mother had passed away, on 19 March 2012.  That occurred in circumstances of her passing within a couple of hours of a palliative care team assuming responsibility for her care.[10]  That was the only previous experience he had with palliative care.[11] 
  3. [21]
    The plaintiff arrived at the hospital at about 9.30am.  He saw that his father appeared unwell; his skin was more greyish than usual and his body swollen.  A nurse told the plaintiff that the palliative care team was to be there at 10am.  The plaintiff took that to mean that he was initially being admitted to palliative care at that time.  He felt “sheer panic, just despair” because, based on what had happened with his mother, he thought his father had hours to live.[12]
  4. [22]
    He managed to compose himself and told his father he was going to the service station.  He rang his brother on the way and, after filling up his vehicle with petrol and buying cigarettes, he left the service station and was then detained. 
  5. [23]
    When first pulled over by police, he was in “sheer panic” and “in panic mode” because he believed his father was hours from death.  All he wanted to do was get back to the hospital.[13]
  6. [24]
    When first approached by Ahrens, he was on the back foot.  He was in panic mode and just wanted to get to the hospital.  He said that the footage which was tendered in the course of the hearing[14] was only for five minutes, but Ahrens behaviour continued for the whole time he was with him.[15]  There were interactions not recorded on the body-worn camera footage where Ahrens was “very derogatory very callous and very very rude to me”.[16]
  7. [25]
    He invited Ahrens to call the hospital because it was the only way he thought he would be allowed to go there, or be given an escort there, “because he was just carrying on”.  He was never told that either police officer had called the hospital.  As a consequence he remained of the belief that his father would die within a couple of hours.  There were no other relatives with his father at the time.[17]
  8. [26]
    He was shocked and in absolute disbelief that he was to be charged and his vehicle impounded.  He didn’t believe he had done anything to warrant that.  He offered the police officers the keys to the car several times so he could leave to get to the hospital, but the police officers would not take them.[18] 
  9. [27]
    He did not see the collision on the adjacent roadway occur, but did hear it and looked over.  He saw that three cars and a truck were involved.  He wanted to go over to help but was told he had to remain with his car.  The “jaws of life” had to be used to remove one lady from her Toyota Seca. Police didn’t seem to be in too much of a hurry to help and that shook him up as well.[19]  He denied it was “a fairly standard bumper-to-bumper accident”.[20]
  10. [28]
    He said to Ahrens “while you’re sitting here with your lights on, old mate is watching you and he has a rear-ender” and Ahrens replied “well none of that would have happened if you had just driven normally”.  He took that as an accusation he had caused the collision, which stuck with him for years.  It made him feel humiliated and really embarrassed that he was being blamed for the collision.[21]
  11. [29]
    Traffic was slowing down when passing where he was detained.  He felt like everyone was staring at him like he was a criminal.[22] 
  12. [30]
    When he asked how he was supposed to get home if his vehicle was impounded, he was told to use a cab, catch public transport or get a friend to give him a lift.  He considered that none of that was viable because of his financial situation.  It was an “absolute nightmare”.  He just had to get back to see his father.[23]
  13. [31]
    He felt that Ahrens was dismissive of the trauma he was experiencing and was callous towards him.[24]
  14. [32]
    He told the officers multiple times that his father was sick and dying in hospital and also offered them his car keys multiple times.  This occurred more than was shown on the body-worn camera footage.  Neither officer ever told him that his father was not dying.  In fact, he said, his father did die hours later.[25]  Nor did they tell his brother that his father was not dying.[26]
  15. [33]
    He was not allowed to leave with his brother to go to the hospital.  He does not recall if it was that time or another, but on one occasion Ahrens threaten to arrest him if he tried to leave.[27]
  16. [34]
    When tow trucks turned up but attended to the vehicles in the collision first, he was devastated because he realised he would be there a lot longer than he originally would have been.[28]
  17. [35]
    After being released at 11.19am, he returned to the hospital.  His father was unable to communicate.  He sat there for a few hours and finally had to go,[29] using his father’s car to return to Brisbane.  He had to work but arranged a half day off on the 12th.[30]  On 12 September 2014, he had started to return to the Sunshine Coast, after working for longer than he expected to, when he rang the hospital and was told that his father had passed at 11am.[31] 
  18. [36]
    Some people at work found out about his having been detained on the roadside and having his car impounded.  He said that he suffered workplace bullying as a result, which was also to do with the allegation of performing a burnout.[32]
  19. [37]
    He testified that the time he was deprived of seeing his father was the most important thing at the time, and he could never get that time back.[33] 
  20. [38]
    Over objection from the defendant, the plaintiff testified that he received several notices, and phone calls, requiring payment of the impoundment fees.[34]
  21. [39]
    On 22 February 2015, the plaintiff wrote to Police Prosecutions seeking the discontinuance of the “hooning” charge.[35]  In that submission he included a statement setting out the impact of the proceedings on him.[36]  That statement is relied on by the plaintiff as evidence of the impact on him for present purposes also, and its admissibility is also contested.[37]
  22. [40]
    Further, every time the present matter gets close to trial, the plaintiff feels anxiety and depression.  Having to relive the death of his mother and father is not easy. “It’s been horrific”.[38]  He has never received an apology from the State of Queensland, or from either of the two police officers.[39]
  23. [41]
    In cross-examination, it was established that the plaintiff had far fewer direct dealings with Brett than Ahrens.[40]
  24. [42]
    The plaintiff accepted he was never physically assaulted by the officers, he was not handcuffed and he was not detained at the watchhouse.[41]  He was not aware of the incident being reported in the media.[42]  No friends or family have thought less of him as a result of the incident.[43] 
  25. [43]
    He considered that the difficulties he had at work after this incident were related to the unlawful detention;

“… the way it works, I’m automatically a hoon. It doesn’t matter if I did it or not or if I’ve been found not guilty; my car was taken off me for 90 days.  I was placed on the hoon list … and because of my car being lost, a lot of people just automatically assumed I was a hoon”.[44]

Philip Peter Ahrens

  1. [44]
    Senior Constable Ahrens testified to the circumstances leading to the detention of the plaintiff.  He testified that the plaintiff had performed a burnout.  He said that when the plaintiff was pulled over, he activated a body-worn camera.  That equipment was not Queensland Police Service issued.  It had a limited battery life and so judgment calls had to be made when to operate the camera and when to turn it off.[45]
  1. [45]
    He said he rang the hospital to see if the plaintiff’s father was there.  He was informed that he was and, after asking further questions, was told that “he wasn’t passing away immediately, right there and then”.  Otherwise, the father’s health status was not discussed with him.[46] 
  2. [46]
    In evidence-in-chief, Ahrens didn’t think that he relayed that information to the plaintiff.[47] In cross-examination, he accepted he did not at any time tell the plaintiff what he had been told by the hospital about his father’s health.  He did not want to argue about that on the side of the road.  He denied he argued with the plaintiff about whether he had committed an offence; he was only investigating it.[48]  He accepted he did not record his conversation with the hospital.[49]
  3. [47]
    Based on his and Brett’s joint belief that a “Type 1 vehicle offence had occurred”, the Traffic Manual at the time[50] dictated that they “had to impound the car unless exceptional circumstances existed, which they didn’t”.[51] Examples of exceptional circumstances are where there was no towing capability, no holding yard or being called away to urgent duties.[52] Ahrens confirmed that while alternatives to impoundment were provided for in the Traffic Manual, “the direction from the manual is that we must impound the vehicle at that time unless exceptional circumstances exist”.[53] Now, the preferred method is vehicle immobilisation.[54]
  4. [48]
    Ahrens accepted that responding to the plaintiff about the vehicle collision in the terms referred to earlier was, in hindsight, not appropriate.  He said it was just a response and in fact the person responsible for the crash was the driver of that vehicle.[55] In cross-examination, he accepted that his was insensitive, but denied he was being callous, derogatory, offensive or insulting.[56]
  5. [49]
    To his recollection, there were no other significant interactions other than those recorded on the body-worn camera footage.[57]  But he accepted that on one occasion the plaintiff asked if he could leave and was told he had to stay until the vehicle was on the tow truck.[58]  He thought, but could not be sure, that the first tow truck that arrived went to the collision.  He did not direct the tow truck where to attend to. Because there were differing arrangements made between the police service and tow truck operators concerning impoundments and collisions, that was handled by police communications.[59]
  6. [50]
    His understanding was that the plaintiff had to remain with his vehicle until it was on the tow truck because that was how he was trained. He had understood the documents had to be served personally, and one of them could not be completed until the tow truck driver signed it.[60]
  7. [51]
    Ahrens did not accept that when first he approached the plaintiff at the roadside, he went after him in a manner that confirmed he had already concluded the plaintiff was guilty of something.[61]  Cross-examination on the terms of their conversation, and the closed-circuit television footage from the service station, did not alter his position.
  8. [52]
    He accepted that a “call record” kept by QPS concerning the collision indicated advice had been received at about 10.20am that one of the drivers in the vehicles was “quite badly hurt”.[62] 
  9. [53]
    He did not accept that the fact that the collision was afforded a higher priority by police communications meant that an exceptional circumstance existed and that he could have acted without impounding the plaintiff’s vehicle.  In his view, the close physical proximity of both events meant that he was not called away to a more urgent task.[63]  Attending to both events did not, in his opinion, add to the length of time the plaintiff was detained.[64] 
  10. [54]
    He still has not apologised to the plaintiff.

Gregory John Brett

  1. [55]
    Officer Brett also testified to seeing the plaintiff perform a burnout. During his involvement with the plaintiff, Brett also activated a body-worn camera. There was no significant interaction with the plaintiff other than that captured on the footage.[65]
  2. [56]
    He was with Ahrens in the police vehicle when Ahrens rang the hospital.  He could only hear what Ahrens said, which included the words “so, he’s not dying then”.[66]
  3. [57]
    To his recollection, the “jaws of life” were not used at the collision.  People may have been taken to hospital from the collision for examination, but no-one was admitted to hospital.[67] Although he did not watch the vehicles involved in the collision for the whole time he was there, he did not see or hear any power tools being used.[68]
  4. [58]
    He accepted that the plaintiff was saying that his father was dying in hospital and that he had to go and see him. He also accepted that the plaintiff’s agitation increased once he was informed police believed he had committed an offence and action would be taken, namely impounding the vehicle.[69]  He was aware that the plaintiff was trying to leave and was told he was not allowed to leave.
  5. [59]
    He has not apologised to the plaintiff because he considered that their actions were in accordance with the Traffic Manual at the time.[70]
  6. [60]
    Officer Brett was cross-examined about alternatives to impoundment.  His evidence is illuminating and should be repeated verbatim:

Did you on the day of the incident have anything to do with working out whether an alternative to impoundment was the right thing to do that day? --- At the time the standard procedure on the Sunshine Coast was to impound all vehicles when impoundment was appropriate.

Yes. But there are alternatives to impoundment in certain circumstances, correct? --- Not at that time.

OK.  So you weren’t aware of them?---I was aware they existed but they were not in – that we were not – that was not the practice at the time.

So the practice at the time was that if you thought someone had committed a Type 1 or Type 2 offence, you would just impound the vehicle.  That was it? ---To prevent the further commission – commission of further offences, yes.”

Dr Peter James Larsen

  1. [61]
    Dr Larsen is a cardiologist who visits the hospital involved.  Mr Walker Snr (“the patient”) was his patient.  Dr Larsen was not called at the hearing to provide expert opinion evidence.  He was called to, in effect, decipher and interpret the hospital notes relating to the patient. Those hospital notes had been admitted by consent as part of the trial bundle, Exhibit 1.
  2. [62]
    The following aspects of those records were highlighted:
  1. Dr Larsen attended the patient at about 7.00am on 10 September 2014.  He was alert, orientated, awake and responsive.  He was experiencing a heart murmur.  Further tests were required and in the event of cardiac arrest, he was not to be resuscitated.[71]
  2. Dr Larsen attended to the patient at about 7.00am on 11 September 2014. He was experiencing decreased arterial saturation of oxygen, which was discussed with him. Further tests were required.[72]
  3. Dr Larsen attended the patient at about 6.30pm on 11 September 2014. The records show that the patient’s condition had deteriorated and that this was discussed with his sons Richard and Peter.  The doctor at that time ordered comfort measures and the administration of subcutaneous morphine as needed.[73]
  4. Dr Larsen attended the patient at about 7.00am on 12 September 2014.  He noted the prognosis was poor, that there had been discussions with the family and that palliative care was to be applied.  Morphine was again prescribed.[74]
  5. The first administration of morphine to the patient occurred at about 6.30pm on 11 September 2014.[75]
  1. [63]
    In cross-examination, Dr Larsen accepted that there had been discussions with the patient and his family about entering a palliative care phase of his treatment on or before 8 September 2014,[76] although precisely which family members is not specified. He also accepted that he could not comment on the patient’s level of consciousness on the afternoon and evening of 10 September 2014 as there was no record to suggest that he had seen him at that time.[77]

The videos

  1. [64]
    All video footage was contained in a USB marked as Exhibit 3. There were two portions of footage from each of Ahrens’ and Brett’s body worn cameras and CCTV from the service station.
  2. [65]
    Ahrens’ first video commences at 9.59 am and runs for 1 minute 59 seconds. It records his initial interactions with the plaintiff. The second video commences at 10.16 am and runs for 2 minutes 57 seconds. It captures the plaintiff being told his vehicle would be impounded, and some of Ahrens’ involvement in the management of the collision scene. It is obvious the collision happened only a short time prior to the commencement of the second video. Some of the conversation between Ahrens and the plaintiff is reproduced in Exhibit 1.[78]
  3. [66]
    Brett’s first video also commences at 9.59 am and captures some of the initial interaction between Ahrens and the plaintiff, as well as a random breath test administered by him. It runs for 2 minutes 23 seconds. His second video commences at 10.15 am and deals with his involvement in the management of the collision scene and his taking of a statement. It runs for 30 minutes and 7 seconds.
  4. [67]
    I have watched all of these videos.

The applicable principles

  1. [68]
    The Court of Appeal in Bulsey & Anor v The State of Queensland[79] considered the relevant principles underpinning the assessment of damages for the tort of false imprisonment.  In that judgment, McMeekin J[80] recited the well-known passage from McGregor on Damages.[81]  As noted in the same passage, the distinction between ordinary and aggravated damages may become blurred.  His Honour also cited the oft quoted passage from the judgment of Lord Diplock in Cassell & Co Ltd v Broome[82] to attempt to delineate between the categories of damages.[83]  All of these matters are of relevance to the present hearing.
  2. [69]
    Further, Mortimer J in Wotton v State of Queensland (No. 5)[84] said:

Another description of the function of aggravated damages was given by Windeyer J in Uren at 149, where his Honour said that aggravated damages ‘compensate the plaintiff where the harm done to him by a wrongful act was aggravated by the manner in which the act was done’.  This passage was cited with apparent approval in Gray v Motor Accident Commission at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ) … The character of the conduct necessary for an award of aggravated damages was described by the High Court in Triggell v Pheeney [1951] HCA 23; 82 CLR 497 at 541 as lacking bona fides or being improper or unjustifiable.”

  1. [70]
    In so far as the plaintiff seeks exemplary damages, the oft referred to statement of principle is that they are justified when there has been conscious wrongdoing in contumelious disregard of another’s rights.[85]  That formulation is still current.[86] Other formulations have also been utilised,[87] but the common thread is that there must be something in the conduct, whether before, during or after the commission of the tort which properly justifies the awarding of exemplary damages, bearing in mind they are both punitive and deterrent in nature, as opposed to aggravated damages which remain compensatory in nature.
  2. [71]
    While malicious conduct may entitle the successful party to an award of exemplary damages, the absence of malice does not necessarily disentitle an award of that nature.  Depending on the circumstances, the type of conduct necessary to justify an award of exemplary damages may be founded on contumelious behaviour which falls short of being malicious or which is not aptly described in those terms.[88]
  3. [72]
    The plaintiff submits that exemplary damages may also be awarded “as a means of ensuring that those responsible for overseeing the Police force ensure that officers are trained so that abuses do not happen again”,[89] relying on Cunningham v Traynor.[90]  The defendant acknowledges such an outcome occurred in Majindi v Northern Territory of Australia & Ors.[91] 
  4. [73]
    That proposition requires consideration.  The starting point is Lamb v Cotogno[92] where the primary issue was whether it was appropriate to order exemplary damages where the wrong doer was insured.  In that context, the earlier referred to directions as to the standard of conduct required to justify exemplary damages were made. 
  5. [74]
    Then, in Adams v Kennedy,[93] Priestley JA (Sheller and Beazley JJA agreeing) found that the conduct of the defendant police officer in that case should have led to an award of exemplary damages in respect of trespass to property, trespass to person and false imprisonment.  He reached that conclusion after reference to the passages in Lamb v Cotogno dealing with the standard of conduct required to be proven before exemplary damages should be awarded.  His Honour then considered[94] that the question of exemplary damages should, in part, reflect a message to the hierarchy of the Police Force that training and discipline are required so that similar abuses of position do not happen again.  There is nothing in the judgment to suggest that consideration is a stand-alone basis for the awarding of exemplary damages. 
  6. [75]
    In State of New South Wales v Ibbett[95] the High Court held, in part, that exemplary damages could be awarded against the State where it assumed vicarious responsibility by operation of legislation for the conduct of police officers (as is the case in the present matter) who committed the tort of trespass to land.  In so holding, the whole of the Court adopted the observations of Priestley JA in Adams v Kennedy.[96]  Further, they observed[97] that there was evidence in that case of poor re-education dealing with the issues such as to justify that style of component of exemplary damages.  There is nothing in the judgment of the High Court to suggest that such a consideration is a stand-alone basis for the award of exemplary damages. 
  7. [76]
    In Majindi v Northern Territory of Australia & Ors,[98] Mildren J included a component of exemplary damages on the basis spoken of by Priestley JA in Adams v Kennedy, but he had also found that the conduct of the police was “high handed and a contumelious disregard of the plaintiff’s rights.”
  8. [77]
    While I accept that Davis DCJ’s comments in Cunningham v Traynor[99], may be read as suggesting that a message for the need for training and supervision of police officers and the need for deterrence in respect of conduct contrary to proper standards creates a stand-alone basis for the award of exemplary damages, they cannot in my view be properly understood in that manner.  First, the cases her Honour cites to support the statement do not support that proposition.  Second, the judgment in Cunningham v Traynor was lengthy, and it seems to me that this was one small passage which could have been more clearly expressed.  There is nothing in the appeal by the State in that case, or the cross-appeal by the plaintiffs,[100] to suggest the passage was understood as a stand-alone basis for the award of exemplary damages. 

Findings and conclusion

  1. [78]
    I keep firmly in mind that I am assessing damages only for the tort of false imprisonment, and not for that of malicious prosecution.  The period of 63 minutes the subject of these proceedings is intertwined with an allegation of “hooning” (and the consequential impoundment and towing of the plaintiff’s vehicle) and a counter allegation of malicious prosecution; both of which are unproven. The intertwining of the allegations is evidenced by the content and structure of the pleadings.  Another example, but not the only one, is the plaintiff’s evidence about why he was bullied at work after these events, which is reproduced at paragraph [43] herein. 
  2. [79]
    That does not mean that particular conduct is deprived of relevance or weight unless it can be attributed solely to the false imprisonment but, when it is in part attributable to the malicious prosecution, it may attract less weight. 
  3. [80]
    I found the plaintiff to be a generally honest witness whose reliability suffered in some respects from the passage of time, the fact he has had to recount events several times prior to this hearing and the distress he experienced in recalling events.  Further, or perhaps as part of these features, he had a tendency to exaggerate on occasion.  For reasons which will later be explained, one example was when he described the extent of the adjacent traffic collision and the use of the “jaws of life”. Another was when he asserted his father passed away only within hours of his detention.  
  4. [81]
    Further, the hospital notes expressly record that Dr Larsen spoke with the plaintiff on the evening of 11 September 2014,[101] yet he testified to the effect that he had heard nothing. This discrepancy was not put to the plaintiff for explanation, and so I should be careful in using it, but it does tend to suggest another occasion of exaggeration.
  5. [82]
    I considered Ahrens’ testimony to be a little mechanical, probably as a result of the passage of time. He seemed to me to want to rigidly adhere to anything that was in other material and was reticent to accept something that was not in that material, even if it was obvious. It is hard to accept that he recalled everything he claimed to as being a conclusive recollection, rather than from having refreshed his memory.  Further, for reasons to be explained below, there are aspects of his evidence which cannot be accepted. 
  6. [83]
    There was no particular attack on the honesty and reliability of Brett and I accept he is a generally reliable witness.  However, it was concerning that both he and Ahrens testified in positive terms that the plaintiff had “hooned”, notwithstanding findings to the contrary by another Court. 
  7. [84]
    I accept that each of the police officers honestly believed that a motorist detained for the purposes of a type 1 vehicle offence had to have his or her vehicle impounded and be detained until the last of the paperwork was signed and served, in the absence of exceptional circumstances. While it is clear that the Traffic Manual in fact provided for a discretion in deciding to impound the vehicle, each of the officers appeared to me to be honest and reliable about their belief, and nether were cross-examined in an effort to suggest they were aware of the existence of the discretion separate from the issue of exceptional circumstances. 
  8. [85]
    Ahrens was however cross-examined in an effort to establish that special circumstances existed when the collision occurred, and hence there was a discretion not to impound the vehicle. It follows that it is suggested that the discretion should have been exercised in the plaintiff’s favour.
  9. [86]
    This issue is another example of the intertwining the of present matter and the decision to charge, and the consequential impoundment and towing of the vehicle. Nonetheless it is worth considering as the reason for the detention, and the length of it, is relevant to the assessment of damages.
  10. [87]
    While I accept that the collision was afforded a higher priority code than the impoundment and that Ahrens and Brett were required to attend to and monitor that incident until another crew arrived, I do not accept that Ahrens was called away to those other duties, namely attending to the collision. The physical proximity between the two incidents, that there was no need for Ahrens keep his attention directed to it all the time, the fact that Ahrens’ physical presence was not required at the collision the whole of the time and the fact that there seems to have been little else required to be done for the impoundment other than waiting for the arrival of a tow truck and the completion of a few relatively simple forms means I am not satisfied that he was “called away” in a real sense.
  11. [88]
    Hence, I accept that the reason for the detention, and the length of it, was an honest but erroneous belief that they (the officers) were required to impound the vehicle and to detain the driver until all forms had been completed and signed, including by the tow truck driver.
  12. [89]
    That does not alleviate each of the officers, and thereby the State of Queensland, of the duty to satisfy himself that he is acting in accordance with the law,[102] but it is relevant to an assessment of aggravated and exemplary damages.
  13. [90]
    I accept that when the plaintiff was detained, he believed that his father’s death was imminent, albeit erroneously.  There has been no real challenge by the defendant to that proposition. 
  14. [91]
    I do not accept that Ahrens “attacked” the plaintiff from the outset of their interactions, as the plaintiff testified.  This is just not borne out by a viewing of the body-worn camera footage.  However, I do accept that the plaintiff may have perceived this to be the case.  It is natural that a motorist stopped by police will, at least initially, have heightened senses of concern, whether or not for good reason.  This is however another instance of the plaintiff’s tendency to exaggerate. 
  15. [92]
    I accept that while detained he became increasingly distressed.  This was, in part, because he felt that he had to see his father whose passing, he believed, was imminent.  But I also accept it was in part attributable to the fact that he had been told he would be charged with an offence that he maintained he did not commit and because of the consequential towing and impoundment of his vehicle for 90 days. This involved a financial impact which contributed to his distress. 
  16. [93]
    I do not accept that that comment by Ahrens was an improper statement that further contributed to the distress and upset that he felt. First, it was if anything an accurate statement of the then existing state of affairs. Second, I consider that any impact that had was subsumed by the overall realisation of the financial impact the impoundment of the vehicle would have, and which is directly attributable to the “hooning” offence.
  17. [94]
    I accept that his distress was contributed to by the fact that motorists were watching him as they passed, and his perception that they thought he was a criminal. However, the amount of that contribution is, in the particular circumstances of this case, less than it might otherwise have been. Although the precise time of the collision has not been established, it seems from the body worn cameras to have been about 10.15 am, and perhaps a little before that. That is, the collision either happened during the period of lawful detention, or only very shortly into the period of unlawful detention. The reality is that while many of the passing motorists may well have observed the plaintiff before the collision, the majority of them would not have noticed him, or only barely noticed him, after the collision given that their attention is more likely to have been directed to that event.
  18. [95]
    I accept that the plaintiff asked to be permitted to leave to go to the hospital on several occasions, and more than is captured on the body-worn camera footage.  It is highly unlikely in my view, that he would have limited his requests to the first few minutes of the around 79 minutes of the total period of detention, given his sense of urgency to attend the hospital.  It also accords with common sense that he would again ask to leave when his brother arrived at the scene enroute to the hospital, which was during the period of unlawful detention. 
  19. [96]
    I also accept Ahrens at some stage told the plaintiff words to the effect that he would be arrested if he left or attempted to leave the scene of the impoundment, and the defendant admits something to that broad effect in its Amended Defence.[103]  Given the plaintiff’s sense of urgency, and the repeated refusals to permit him to do so, it is unsurprising that Ahrens would, on such an inquiry, do so. Given that Ahrens believed that the plaintiff had to remain until the last of the documents were signed by the tow truck driver, as I accept, such a response was a natural and understandable response. There is insufficient evidence to conclude the response was said callously or other than as an honest response in the circumstances.
  20. [97]
    It is true that the plaintiff was not handcuffed, as occurred in some other cases of this nature and was considered to be a relevant feature, but he did not need to be. He was compliant with the directions he was given. That he was in the company of police was obvious to anyone who was curious given his positioning near the police car with the flashing lights.
  21. [98]
    I accept that when Ahrens rang the hospital, he was told something to the effect that Mr Walker Snr was not imminently dying, and it has not been seriously pressed that he was not told that. His evidence in that respect is supported by Brett’s unchallenged testimony, and is consistent with the hospital notes.
  22. [99]
    However, what he was told did not exclude the fact that Mr Walker Snr was very ill, and this still did not seem to motivate either officer to exercise their discretion, which existed regardless of what they were trained. It is also interesting to note that there is no suggestion that they would have acted differently even if Ahrens had been told that Mr Walker Snr was not expected to live for long.
  23. [100]
    I accept that neither police officer told the plaintiff what Ahrens had been told by the hospital.  It seems to me that this omission was not done to deliberately magnify or increase the emotional turmoil the plaintiff was experiencing, but I accept that it had that effect.  It seems to me that the genesis of the omission was a lack of empathy by the police towards the plaintiff, consistent with what is seen in the body-worn camera footage, while recognising that the footage does not cover the whole of the detained period. 
  24. [101]
    Accordingly, while I find the omission to tell the plaintiff that information was not done with malicious or callous intent, I accept that the fact he was not told, failed to alleviate his growing distress at the time and, in that sense, aggravated it.  It would have taken little thought on the part of the officers to realise it would have that effect. 
  25. [102]
    Ahrens’ testimony that he didn’t tell the plaintiff because he didn’t want to argue with him about that on the side of the road cannot be accepted.  First, it assumes there would be an argument.  Second, he had no difficulty in asserting what he said the plaintiff had earlier done apropos the allegation of hooning.  There are reasons to doubt both that he was initially conducting an investigation and did not have a closed mind to the issue but regardless of whether his allegations were accurate or not, he was not obviously reticent to “argue” about it, nor about what he then saw as the cause of the traffic collision. 
  26. [103]
    Contrary to the defendant’s submissions,[104] it follows I do not accept that the failure to tell the plaintiff of what Ahrens was told was reasonable.  Further, I fail to understand how telling a man in obvious stress something that may relieve that distress to some degree would be construed as being callous. 
  27. [104]
    I accept that the comment by Ahrens about the cause of the collision would have aggravated the upset the plaintiff was already feeling.  Ahrens acknowledged it should not have been said, but it is argued that the seriousness of saying it should be seen in light of the fact that police officers perform their duties in dynamic situations.[105]  That is often the case, but not necessarily so.  Here, Ahrens was not dealing with a physical confrontation, and he was dealing with only one person who was not behaving with volatility.  This was a comparatively benign environment in which the officers were operating.  Further, as recorded in the body-worn camera footage, there was a slight pause between what the plaintiff said and Ahrens’ response, suggestive of some deliberation in the response.  However, I find it was not said out of malice or with an intent to hurt the plaintiff, but was again the product of the lack of empathy earlier referred to.
  28. [105]
    I am not satisfied that being present at the time of the collision, and hearing it occur, and observing the aftermath materially added to the upset the plaintiff was feeling as a consequence of being unlawfully detained.  First, there is the issue earlier referred to as to whether the collision in fact occurred whilst he was unlawfully detained.  Second, the body-worn camera footage shows the extent of the damage from the collision was not particularly serious or likely to arouse strong feelings of upset at the mere exposure to it.  This is not to minimise the seriousness of the collision, and I note the agreed position that a woman was trapped in her car, but the body-worn camera footage does not support the description given by the plaintiff.  My conclusion is supported by the fact that the plaintiff accepted that, at least until the time of his testimony in this hearing, his witnessing the collision had not been particularly traumatic.[106]  Thirdly, any asserted trauma he suffered in that regard must be directly related to his observation that “the jaws of life” were used, something that did not in my view happen. 
  29. [106]
    While it is jointly admitted, and therefore accepted by me, that a woman was “trapped” in her car, the term is imprecise and does not necessarily mean that machinery was required to remove her. I accept that Brett did not see or hear heavy machinery being used, and none can be heard in his body-worn camera footage, which continues for some notable period of time after the arrival of the fire truck, and continues to a point in time where it can be accepted that attending ambulance and fire personnel are winding down their attention. Further, while it cannot be seen in the footage which woman it is who was trapped in her car, the damage to the vehicles is not such as to make apparent the need for the “the jaws of life” to be used at all.
  30. [107]
    While it is clear that Mr Walker Snr did not pass away until about 11.00am on 12 September 2014, I accept that his levels of consciousness may well have been rising and falling between the time the plaintiff left him later on 10 September 2014 and the time of his passing.  I accept that Mr Walker Snr was not sufficiently conscious to meaningfully interact or converse with the plaintiff for the whole of the time the plaintiff was with him after he returned to the hospital. 
  31. [108]
    It is clear however, that there were periods in which he was conscious and communicating after that, notwithstanding that care must be taken in understanding the hospital notes.  Medical reference to observations such as coherence and alertness do not always carry the same connotation as when used by lay people in ordinary conversation.  The records reveal periods of consciousness after about 1.00pm on 10 September 2014 and so I cannot accept that paragraph 15 of the Statement of Claim[107] has been proven.
  32. [109]
    However, my acceptance that the plaintiff was unable to communicate with his father in the period between his return to the hospital and having to return home does not mean that his unlawful detention deprived him of the opportunity to speak with his father for the final time.  I am unable to determine at what point or points in time his father fell to the low level of consciousness that the plaintiff described. He is unable to demonstrate that had he been permitted to leave the scene of the detention at 10.15 am that he would have been able to converse with his father.
  33. [110]
    In any event, the records show that Mr Walker Snr’s consciousness lifted to a point where he could converse at later times. While the plaintiff felt the need to work the following day, as understandable as that was, the period of unlawful detention was not necessarily the cause of any loss of opportunity to converse before his passing. 
  1. [111]
    Objection was taken to the receipt of evidence from the plaintiff as to steps he had twice taken to have the “hooning” charge discontinued and the tendering of a written statement of impact that had been attached to the latter of those two submissions to police, as well as an apparent lack of meaningful case conferencing in the Magistrates Court.[108] It was said that all this evidence was relevant to the steps taken by police in the conduct of the matter to the present day, and hence is relevant to the assessment of damages. Broadly speaking, the objection was taken on the basis that the evidence involved re-litigating the hooning charge and the malicious prosecution claim. I allowed the evidence on the basis that there was relevance in the fact that allegations were repeated, and its impact on the plaintiff. The matter of weight was not then resolved.
  2. [112]
    I accept that the two written submissions and the impact statement were admissible pursuant to section 92 of the Evidence Act 1977. However, their weight is affected by the fact that they were directed to the discontinuance of the hooning charge, and hence were more relevant to the failed pursuit of the malicious prosecution claim.
  3. [113]
    Further, for that material to have any particular weight, it would need to be established that the defendant has improperly, as opposed to maliciously, pursued the prosecution in the Magistrates Court or improperly conducted the defence of the proceedings in the District Court. While it is true that the proceedings against the plaintiff were dismissed in the Magistrates Court, that does not of itself permit a conclusion of impropriety. Indeed, the failure in the Malicious Prosecution claim suggests that the defendant was entitled to defend that claim.
  4. [114]
    In my view, something more than a mere defence of the False Imprisonment claim is required to be shown for this evidence to have any appreciable weight, otherwise the legitimate defence of a claim, albeit unsuccessfully, may result in increased or aggravated damages. An instance where that occurred is McDonald v Coles Myer (trading as K-Mart Chatswood)[109] where the action was defended on the basis of justification. That is not the situation here, nor has there been any sort of analogous defence run.  Subject to a matter that will be considered below, there is nothing in the present defence of the Claim which suggests it should increase or otherwise aggravate the otherwise appropriate damages.
  5. [115]
    The exception is that both police officers continued to assert in positive terms in this hearing that the defendant had committed a “hooning” offence notwithstanding the acquittal by the Magistrate. I accept that this has aggravated the hurt and distress caused to the plaintiff by the period of false imprisonment, as that was the reason he was detained. Each of their evidence failed to acknowledge in any way that the plaintiff had been acquitted. That could have easily, and more accurately, been accommodated by referring to a statement of belief of what each saw, rather than an accusatory statement in conclusive terms.
  6. [116]
    In a similar vein, I accept that the failure of either officer to ever apologise to the plaintiff, including at trial, is a relevant feature. Even the acceptance by Ahrens that his comment about the cause of the collision was wrong in hindsight did not contain an implied apology.
  7. [117]
    In effect, it was submitted that the absence of any apology was explicable on the basis that both believed that they had done nothing wrong by acting as they had been trained; a variation on the so-called Nuremburg defence. That is perhaps sufficient to explain why I do not accept the submission. The finding of the Court of Appeal, if not that also of the Magistrate, the force of which is obviously not accepted by either officer, would have allowed for an acceptance that they thought they acted properly but accepted they had not. This failure is in my view relevant to the assessment of damages.
  8. [118]
    Returning to the admissibility of the evidence, there may have been some weight in the fact that the written submissions and the impact statement demonstrate that, from an early time, the plaintiff has complained of impact which is partially attributable to the false imprisonment complaint, but it was never suggested he didn’t suffer distress. Also, the impact statement arguably establishes some prior inconsistency concerning the degree and cause of impact, but as the plaintiff was not cross examined on that, I draw no conclusions about it. They are otherwise of limited utility.
  9. [119]
    Objection was also taken to evidence of distress caused by a private company chasing fees related to the impoundment of the vehicle. Exhibit 5 was tendered as an example of a notice demanding payment that had been received. The topic is also covered in the impact statement. I accept that there is no relevance, or if I am wrong about that, no real weight in the impugned evidence. That is directly related to the impoundment of the vehicle, and has not arisen from the false imprisonment. I do not have regard to it in the assessment of damages.
  10. [120]
    It is true that the plaintiff was not assaulted, handcuffed nor taken to the watchhouse. These have been considered to be relevant features in some other cases of this sort, but in this case he did not need to be handcuffed as he had been.
  11. [121]
    I do not accept that the plaintiff has suffered reputational damage, as opposed to hurt and distress arising from embarrassment. His own account accepted that his family and friends did not think any less of him as a result of being detained, and there is no evidence that the fact was publicised more broadly. Accordingly, I do not accept that this aspect is relevant for present purposes.
  12. [122]
    The plaintiff is entitled to general damages to reflect the injury to liberty and the injury to feelings, otherwise considered as the distress and embarrassment suffered, including mental suffering.
  13. [123]
    I consider that the plaintiff is also entitled to aggravated damages, particularly because of the officers’ failure to inform him as to what they were told of his father’s status Ahrens comment about the cause of the collision, the failure to apologise and the officers’ insistence on giving conclusive evidence of offending of which he had been found not guilty. Each of those types of conduct was, in my view, improper and unjustifiable, both singularly and in combination, and goes beyond the bounds of ordinary human fallibility.
  14. [124]
    I however do not accept that this is an appropriate case for the award of exemplary damages. While I accept that some of the officers’ conduct goes beyond the range of ordinary human fallibility, I do not accept that it reaches the necessary threshold for an award of exemplary damages, no matter how described. As deserving of condemnation as the officers’ conduct was, that of itself does not necessarily warrant an award of exemplary damages. That conduct is, in my view, appropriately met with an award of aggravated damages, and does not call for a further award of damages of a punitive nature.
  15. [125]
    Further, I have earlier noted that, in my view, there is no power to make an award of exemplary damages as referred to by Priestley JA in Adams v Kennedy concerning the need for training and education unless the underlying conduct of the police officers would also justify such an award. In any event, in the present case the unchallenged evidence is that QPS policy has now changed around the impoundment of vehicles in these circumstances. While something is sought to be made of the timing of that change, and there is no evidence of precisely when that occurred, it seems to me that the essential issue is that it has changed and so this matter stands in contrast to the situation in Adams v Kennedy.
  16. [126]
    There is considerable difference in the submissions as to quantum of the damages that should be ordered. The plaintiff’s claims were earlier set out, and the submissions do not noticeably diverge from that claimed. The defendant on the other hand contends that damages should be awarded in the range of $5,000 to $10,000. If aggravated damages are to be awarded, which was not conceded, the total award should still fall within that range.
  17. [127]
    I have been assisted by consideration of numerous other cases in which damages have been awarded for false imprisonment or wrongful arrest. Some of them were of more assistance than others, and none were completely on all fours in terms of all relevant considerations. The reference to them was not intended to provide the upper or lower limits of an appropriate award, but to provide a feel for what has been awarded in broadly similar situations in the past. In some cases, I have made a broad allowance for the effects of inflation to accommodate the time that has passed since the award was made.
  18. [128]
    The cases that I found to be of most assistance were Eaves v Donnelly,[110] Coleman v Watson & Shaw & Anor,[111] State of New South Wales v Smith,[112] State of New South Wales v Delly,[113] Cunningham v Traynor[114] and some of the cases cited by Harrison J at [672] - [696] in Beckett v State of New South Wales.[115]
  19. [129]
    It is instructive to remember that in each of the cases particularly relied by the defendant, namely Hemelaar & Red v Walsh, Gough & State of Queensland[116] and Coleman v Greenland, Donaldson, Powers etc & The State of Queensland,[117] the plaintiffs’ respective conduct effectively invited the adverse attention of police, and once receiving that attention their respective conduct appeared designed to invite arrest, or to at least provoke some sort of response from the attending police officers. That is not the case here. Further, in each of those cases, the respective plaintiffs did not suffer the indignity, embarrassment and upset that is present here.[118] The significance of the first distinguishing feature is evidenced by the fact that one of those plaintiffs, Coleman, was the recipient of a notably higher award of damages when he was acting lawfully and without antagonism to police.[119]
  20. [130]
    While there are some similarities between the present case and the others mentioned above, particularly Eaves v Donnelly and Cunningham v Traynor, there are also features in each of those cases that justified a higher award of damages than in the present case.
  21. [131]
    There is force in the plaintiff’s submission that although the period of unlawful detention was relatively short, being 63 minutes, it was a period of time which was particularly precious to the plaintiff and a period of time during which he was susceptible to experiencing considerable distress and upset. On the other hand, the period is not measured in days or weeks as in some of the comparable awards and there are the limiting factors earlier referred to, not the least of which is the limitation of the recoverable damages to those referrable to the false imprisonment, as opposed to other causative features.
  22. [132]
    I assess damages, including aggravated damages, in the total amount of $30,000. I allow interest pursuant to section 58 of the Civil Proceedings Act 2011 from 10 September 2014 to the date of judgment.
  23. [133]
    I will hear the parties as to costs.

Footnotes

[1] Walker v State of Queensland [2020] QCA 137 (“the appellate decision”).

[2]  Amended defence, paragraph 21.

[3]  Statement of Claim, paragraph 45; amended defence, paragraph 20; agreed statement of facts, paragraph 6.

[4]  Exhibit 2.

[5]  The appellate decision, [53].

[6]  Ts 1-13, ll 3-5; 1-58, l 29 to 1-59, l 12.

[7]  Exhibit 2, paragraph 8.

[8]  Exhibit 2, paragraphs 9 - 11.

[9]  Exhibit 2, paragraph 12.

[10]  Ts 1-20, ll 1-13.

[11]  Ts 1-22, ll 4-8.

[12]  Ts 1-20, l 30 – 1-21 l 3; 1-56 ll 1-5.

[13]  Ts 1-22, ll 1-10.

[14]  Exhibit 3.

[15]  Ts 1-22, ll 18-28.

[16]  Ts 1-51, l 28.

[17]  Ts 1-22, l 36 – 1-23 l 23.

[18]  Ts 1-24, ll 7-24.

[19]  Ts 1-25, ll 6-21.

[20]  Ts 1-57, ll 25-32.

[21]  Ts 1-22, ll 32-44; 1-25, ll 23-38.

[22]  Ts 1-25, ll 1-4; 1- 2,5 ll 35-38; 1-47, l 38 – 1-48, l 9.

[23]  Ts 1-26, l 4 – 1-27, l 6.

[24]  Ts 1-27, ll 10-16.

[25]  Ts 1-27, l 34 – 1-28, l 7.

[26]  Ts 1-28, ll 36-39.

[27]  Ts 1-28, ll 17-34.

[28]  Ts 1-28, l 41 – 1-29, l 42.

[29]  Ts 1-30, ll 30-43.

[30]  Ts 1-31, ll 15-38.

[31]  Ts 1-33, ll 4-14.

[32]  Ts 1-33, l 46 – 1-34, l 20.

[33]  Ts 1-35, ll 34-45.

[34]  Ts 1-37, l 34 – 1-39, l 17; Exhibit 5.

[35]  Exhibit 6.

[36]  Exhibit 7.

[37]  Ts 1-39, l 28 – 1-41, l 30.

[38]  Ts 1-47, ll 33-42.

[39]  Ts 1-41, ll 44-47.

[40]  Ts 1-43, ll 28-35.

[41]  Ts 1-47, ll 19-36.

[42]  Ts 1-48, l 11 – 1-49, l 1.

[43]  Ts 1-49, ll 3-14.

[44]  Ts 1-50, ll 16-23.

[45]  Ts 1-69, l 31 – 1-70, l 20.

[46]  Ts 1-72, ll 1 – 28; 2-16, ll 11 – 34.

[47]  Ts 1-72, ll 30 – 32.

[48]  Ts 2-17, l 28 – 2-19, l 6.

[49]  Ts 2-19, l 9 – 2-20, l 23.

[50]  The relevant part of which, s 16, is Exhibit 8.

[51]  Ts 1-72, ll 34 – 47.

[52]  Ts 1-73, ll 1 – 3.

[53]  Ts 2-10, l 23.

[54]  Ts 1-73, l 27.

[55]  Ts 1-74, ll 14 – 26; 2–20, l 38 – 2-21, l 4.

[56]  Ts 2-22, ll 1 – 37.

[57]  Ts 1-74, ll 32 – 35.

[58]  Ts 1-75, ll 23 – 27.

[59]  Ts 1-75, ll 5 – 21.

[60]  Ts 1-75, l 31 – 1-76, l 12.

[61]  Ts 2-3, ll 32 – 34.

[62]  Ts 2-8, ll 21 – 48.

[63]  Ts 2-11, l 44 – 2-13, l 40.

[64]  Ts 2-14, l 1 – 2-15, l 6.

[65]  Ts 2-24, ll 35 – 37.

[66]  Ts 2-24, l 39 – 2-25, l 3.

[67]  Ts 2-26, ll 1 – 21.

[68]  Ts 2-31, ll 5 – 19.

[69]  Ts 2-28, l 27 – 2-29, l 1.

[70]  Ts 2-30, ll 1 – 9.

[71]  Ts 2-34, l 7 – 2-35, l 40; Exhibit 1, p 38.

[72]  Ts 2-35, l 27 – 2-36, l 16; Exhibit 1, p 40.

[73]  Ts 2-35, l 31 – 2-37, l 6; Exhibit 1, p 45.

[74]  Ts 2-37, ll 8 – 27; Exhibit 1, p 46.

[75]  Ts 2-40, ll 13 – 17.

[76]  Ts 2-41, l 7 – 2-43, l 3.

[77]  Ts 2-43, l l5 – 31.

[78]  See especially pages 11 and 12.

[79]  [2015] QCA 187, especially at [84], [100], [123] – [126].

[80] supra at [123].

[81]  15th Ed, (1988) at para 1619.

[82]  [1972] AC 1027, 1124 – 1126.

[83]  See also Bulsey, supra at [124] and [126].

[84]  [2016] FCA 1457, [1732].

[85]  See Whitfield v De Lauret & Co Ltd (1920) 29 CLR 71, per Knox J at 77.

[86] Gray v Motor Accident Commission (1998) 196 CLR 1, [20].

[87]  See for example State of New South Wales v Delly (2007) 70 NSWLR 125 per Tobias JA at [86]-[88] and per Basten JA at [115]-[117].

[88] Lamb v Cotogno (1987) 164 CLR 1, 13; State of New South Wales v Ibbett (2009) 226 CLR 638, [33].

[89]  Ts 1-16, ll 39-42.

[90]  [2016] WADC 168, [826], which cited State of New South Wales v Ibbett, supra at [51] and [54] and Adams v Kennedy (2000) 49 NSWLR 78, [36].

[91]  (2012) 31 NTLR 150, [74].

[92] supra

[93] supra at [35].

[94] supra at [36].

[95] supra.

[96] supra at [51] and [54].

[97] supra at [28] and [60].

[98] ibid.

[99] supra at [826].

[100] State of Western Australia v Cunningham (No. 3) [2018] WASCA 207.

[101]  See paragraph 61(3) herein.

[102] Re Bolton; Ex parte Beane (1987) 162 CLR 514, 528-529 cited favourably by McMeekin J in Bulsey, supra at [122].

[103]  Amended Defence, para 4E

[104]  Defendant’s Written Submissions, para 27.

[105]  Defendant’s Written Submissions, paras 32-34.

[106]  Ts 1-57, ll 28-42.

[107]  That paragraph alleges that Mr Walker Snr lost consciousness at approximately 1.00 pm on 10 September 2014 and never regained consciousness.

[108]  Ts 1-36 to 1-41

[109]  [1995] NSWCA 67

[110]  [2011] QDC 207

[111]  [2007] QSC 343

[112]  (2017) 95 NSWLR 662

[113]  (2007) 70 NSWLR 125

[114]  [2016] WADC 168

[115]  [2015] NSWSC 1017

[116]  [2018] QDC 151

[117]  [2004] QSC 037

[118]  See for example Hemelaar, supra at [15]-[35], [124] and Coleman v Greenland, supra at [21]-[22], [34], [132]-[136].

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

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Editorial Notes

  • Published Case Name:

    Walker v State of Queensland

  • Shortened Case Name:

    Walker v State of Queensland

  • MNC:

    [2022] QDC 168

  • Court:

    QDC

  • Judge(s):

    Byrne QC DCJ

  • Date:

    05 Aug 2022

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