Battery & exemplary + aggravated damages in taking a DNA sample

Coffey v The State of Queensland & Ors [2012] QSC 186

In a somewhat usual claim an award for damages including exemplary damages was allowed when the prisoner was forced to the ground to take a DNA sample and in the process knocked unconscious and suffered a gash to his head. His Honour Henry J found the force applied was excessive as well as the number of hairs taken (239).

Henry J

[64] It was not reasonably necessary for four men, with no material warning to Mr Coffey, to jointly apply force to him, pushing him forwards and downwards, taking his legs out from under him and toppling his upper body downwards unprotected and thus causing his head to impact into the hard floor. It was an ineptly executed and unsafe method of taking Mr Coffey to ground and from the outset exceeded the force that was reasonably necessary. There might arguably be situations where, as an event unfolds, it becomes reasonably necessary for some mild application of force to be increased to a significant degree, for instance if the subject flails about or is physically aggressive, but as I have already found, this was not such a situation.

[65] The force used was not authorised at law.

[66] As to the intention of the officers who applied the force, it appears clear on the authorities that for the plaintiff to prove battery it is sufficient to prove an intention to do the act that results in the battery and not necessary to prove an intention to cause injury.[29] The application of force constituting the battery here was deliberate. I accept the officers involved did not intend to cause injury, however, it is irrelevant to liability that they did not intend that the end result of their combined application of force would be the forceful impact of Mr Coffey’s head into the ground and consequent injury.

[73] Sergeant Smith gave evidence he took four lots of hairs, as is apparent from the video recording, on the basis that he considered some in the first two batches were not viable because they were brittle or without roots.[31] The video recording shows his method of removal was solely using his gloved hands rather than tweezers. Mr Coffey emphasises reference to tweezers in a DNA hair sample kit referred to in the Commissioner’s Circular No. 2/2001.[32] When it was put to Sergeant Smith that it would have been logical to have tweezers in his kit his response included, “Well, if they’re offering resistance you don’t want to be putting tweezers anywhere near anyone. That’s probably why we wouldn’t have tweezers, I would imagine.”[33] Mr Coffey was lying stationary on the ground at the time the hair sample was taken and his hair-laden scalp was a fixed target. It would have been appropriate to use tweezers.

[74] Sergeant Smith said he was looking for 10 to 20 viable hairs but could not recall how many he took.[34] The sample (presumably minus the strand(s) used for actual DNA analysis) was tendered in the trial, becoming ex 17. Looking at the hairs clustered as a group within the clipseal bag is inadequate to allow an assessment of them. I have removed and inspected them. The exhibit contains 239 strands of hair. Mr Coffey had long hair and it possible some of the hair samples broke, giving rise to a now greater number of individual pieces of hair than was actually taken, but the samples do not appear so fragile or brittle that this would have occurred in any significant proportion. However, even allowing for that aspect and the latitude earlier mentioned it is obvious that the number of hairs taken must have far exceeded what was necessary for taking a DNA sample.

[75] It is was likely not perceived by officer Smith that any harm would be done by erring upwards in the volume of hair taken and I accept he was not acting with an intention to cause personal injury. However, the taking of such a large volume of hairs from Mr Coffey’s head for the purpose of taking a DNA sample involved application of force to his person that went beyond what was reasonably necessary to take a DNA sample. It thus exceeded the force authorised by law. Mr Coffey has proved this application of force constituted battery.

[76] Sergeant Smith is not a defendant in the proceeding however the first defendant is vicariously liable for this battery, as is effectively admitted by it in paragraph 5A(b) of the Fourth Further Amended Defence of the defendants.

[83] However Mr Coffey advanced little evidence to demonstrate exactly what pain and suffering he experienced. This is presumably because of his long-held stance, driven by his desire for a jury trial, that his matter was not a personal injury proceeding. When prompted to give some detail about his injury caused by the battery, Mr Coffey said when he awoke he was covered in blood and was “pretty sore”[37] although he then said that “it didn’t seem all that important to me at the time as I – I really just wanted to get out of that room”.[38]

[84] The video recording informs my view of the injuries suffered. It shows Mr Coffey did receive a gash above his eyebrow and was rendered unconscious. In the aftermath it appears he may have suffered some anxiety resulting in hyperventilation.

[85] Twenty-four hours later Mr Coffey was released from medical care and it must be inferred, as Mr Coffey lead no evidence to the contrary, that his pain and suffering had ended by that time.

[86] The defendants, who acknowledge the general damages in this matter fall to be determined unconstrained by legislative limit, submitted that in the circumstances the most that could be awarded would be $5,000.[39]

[87] I will award damages only for the pain and suffering I considered proved, namely, a gash to the head and a resulting sore head and brief period of unconsciousness.

[88] There is little clear pattern in the authorities in respect of quantum in respect of injuries of this minor nature, although I have regard to an array of them.[40]

[89] In all of the circumstances $7,500 should be awarded for general damages occasioned by this battery.

[90] As to the pain and suffering occasioned by the battery relating to the taking of the hair samples Mr Coffey was unconscious when the hairs were removed. There is no positive evidence of any physical injury or pain. Such very limited pain and suffering as may in these circumstances be inferred can only support, as the Defendants submitted, “an extremely modest award of about $500”.[41]

[91] In all of the circumstances $500 should be awarded for general damages occasioned by this battery.

[92] Thus the total general damages for battery should in total be $8,000.

 

[103] Exemplary damages are intended to punish a defendant for contumelious disregard of a plaintiff’s rights and also act as a deterrent.[46] They should mark this court’s strong disapproval of the actions of the Corrective Services Officers constituting the battery associated with taking Mr Coffey to ground for which the State is liable. I bear firmly in mind that there was no intention to do injury to Mr Coffey. However, the finding of battery reflects a finding that the officers deliberately applied force to Mr Coffey. The hard impact of his head into the ground and the injury and unconsciousness caused by that was an obviously foreseeable risk of the officers handling Mr Coffey as they did. That in a room containing multiple police and Corrective Services Officers a handcuffed prisoner who did not behave violently could not be guided safely to lay on the floor speaks for itself. The exercise was carried out in a hurried, ill-prepared and excessively forceful way without any proper regard for the safety of Mr Coffey. It warrants strong disapproval.

[104] I award $12,000 exemplary damages for that battery.

[105] The purpose of aggravated damages is to compensate a successful plaintiff for injury to his dignity or feelings caused by the defendant’s reprehensible conduct.[47]

[106] Dealing firstly with an appropriate award for aggravated damages in respect of the battery in taking Mr Coffey to ground, I bear in mind Mr Coffey had been unco-operative in his dealings with the PST. His expectations of dignity cannot be regarded as being as high as they would be were he not a prisoner but on the other hand that status placed him in a vulnerable, largely powerless position. His disinclination to co-operate was plainly no justification for the completely overwhelming use of power inflicted upon him and does not significantly temper the need for an award sufficient to restore his dignity. There has been no evidence to suggest any apology was communicated to Mr Coffey for his mistreatment and no admission made in this proceeding such as to diminish or appease the affront caused to him.

[107] I award $7,500 aggravated damages for that battery.

[108] In respect of the battery involving the hair removal, an event for which Mr Coffey was unconscious, it ought attract only a modest award for aggravated damages.

[109] I award $500 aggravated damages for that battery.

[110] Thus the total aggravated damages awarded will be $8000.

 

Brisbane Barrister – David Cormack

NB: damages increased on appeal:

Coffey v State of Queensland & Ors [2012] QCA 368

[17] The exercise of arriving at a figure which appropriately recognises the aims of
exemplary damages is necessarily a subjective one, but I have concluded that
the appellant is right in saying that the award in this case was inadequate. An award
of $12,000 was not such as to be likely to make a real impression of the kind
needed; to mark disapproval and to ensure that the first respondent took steps to
deter such conduct for the future. The trial judge erred in the exercise of his
discretion. A figure of $24,000 should be substituted in order to achieve the
purposes of awarding exemplary damages.

See also: Bulsey & Anor v State of Queensland [2015] QCA 187

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