CLA ss 45 & 47: bouncer ‘assisting’ police + vicarious liability

O’Connell v 1st Class Security P/L [2012] QDC 100

 ISSUES:

Quantum and liability

 BACKGROUND

An intoxicated backpacker/plaintiff was ejected and refused entry and in disobedience to a ‘move on’ direction was arrested by police and whilst being restrained by the police, the bouncer ‘assisted’ the police despite not being “invited or welcomed”. In so doing, the backpacker was thrown to the ground by the bouncer and broke his leg. The less controversial matters were whether this was a breach of duty by the bouncer and the intentional tort of battery.

 Several further issues arose under the Civil Liability Act 2003 (CLA) as to whether the backpacker was committing an indictable offence (s.45) at the time of the injury; whether the intentional tort of battery exempted the operation of .s45 and contributory negligence (s.47). Further issues arose as to whether the bouncer was using ‘reasonable force’ and excused in the battery, and if not; whether a criminal offence was committed [subject to defences under the Criminal Code (ss.254 & 260) and Police Powers and Responsibilities Act 2000 (s.615)], and whether the defendant was vicariously liable for his actions.

 It was held: the bouncer was found to have committed battery; s.45 did not apply because the plaintiff did not materially contribute to “the harm” or alternatively s.45 does not apply to intentional torts such as battery; there was no excuse for the battery (reasonable force etc.); there was no reduction for contributory negligence; and the defendant was vicariously liable for the actions of the bouncer.

Damages were modestly assessed based on the evidence of Dr Montgomery and the plaintiff’s woeful demonstration of a capacity to work ($6,000 for past and nil for future loss).

 Andrews SC DCJ

[36]      What is the effect of Civil Liability Act 2003 (Qld) section 45?  That section

provides, so far as is relevant:

 45 Criminals not to be awarded damages

(1)        A person does not incur civil liability if the court is satisfied on the balance of probabilities that—

(a)        the breach of duty from which civil liability would arise, apart from this section, happened while the person who suffered harm was engaged in conduct that is an indictable offence; and

(b)        the person’s conduct contributed materially to the risk of the harm.

 (2)        Despite subsection (1), the court may award damages in a particular case if satisfied that in the circumstances of the case, subsection (1) would operate harshly and unjustly.

 (3)        If the court decides to award damages under subsection (2), the court must assess damages on the basis that the damages to which the injured person would be entitled, apart from this section, are to be reduced, on account of the injured person’s conduct, by 25% or a greater percentage decided by the court to be appropriate in the circumstances of the case.

 (4)        It does not matter whether the person whose conduct is alleged to constitute an indictable offence has been, will be or is or was capable of being proceeded against or convicted of an indictable offence.

 (5)        If the person has been dealt with for the offence, it does not matter whether the person was dealt with on indictment or summarily.

 [37]      Neither party made submissions on the application of s 45 (1) (b) or s 45 (2) or s 45(3). The parties were probably concerned more by the consequences upon the operation of s 45 if Simi committed a battery upon the plaintiff. I interpret the word ― “conduct” in s 45 (2) as referring to the ― “conduct that is an indictable offence” in s 45 (1) and do not interpret it as a reference to the plaintiff’s conduct generally. This interpretation means that in considering s 45 I can ignore the plaintiff’s earlier conduct in drinking alcohol until he made himself insensible and his earlier behaviours which were designed to infuriate the generally patient bouncer. The plaintiff’s indictable offence was resisting arrest and it is only his conduct in resisting arrest which the section permits to be examined for considering the defence.

 [38]      The reference in s 45 (1) (b) is to ― “the harm”‖ as distinct from a reference to unspecified ― “harm”. The difference is significant. It will more often be that a person’s conduct will materially contribute to the risk of the harm the person suffers if that harm is a reasonably foreseeable consequence of the conduct. By resisting arrest when he did the plaintiff contributed materially to the risk of suffering some harm but not ―the harm‖ which he actually suffered. His conduct in resisting arrest contributed materially to the risk of suffering at least the physical injuries which were reasonably foreseeable from having his arms forcefully held and from being restrained over a car bonnet despite his struggles. Shoulder or muscle strain and bruises, had they been caused by the forces created by the actions of the police and the plaintiff, would have been reasonably foreseeable as harm which might be suffered by the plaintiff while he committed the offence of resisting arrest, in the way he did. The actual harm he suffered was not a reasonably foreseeable consequence of the actual resistance to arrest which the plaintiff was then displaying. The circumstances of the offence at the time the plaintiff suffered ―the harm‖ were that the two constables were in control of the plaintiff who was bent over the bonnet but continuing to resist arrest by moving. I have not been persuaded that his resistance at that stage was more than of a minimal physical kind as he lay face down while one officer had a hand on him. He was picked up from the bonnet and thrown to the ground and Simi fell onto him. The force involved in that ―throw down‖ was sufficient to cause a grotesque fracture of the right femur such that when Simi got off the plaintiff, the plaintiff’s kneecap was turned to face backwards and his right foot ended up beside his face. The fracture required ―a reasonably significant degree of violence‖ or ―quite considerable force‖ in the words of the orthopaedic expert. Such force and such an injury were not reasonably foreseeable at the stage of the arrest when Simi intervened.

 [39]      I am not satisfied on the balance of probability that the plaintiff’s conduct when Simi intervened was contributing materially to the risk of ― “the harm” which he suffered from Simi’s intervention. It follows that the plaintiff’s cause of action based upon negligence is not defeated or affected by the defence in s 45(1) of the Civil Liability Act. 

[40]      The plaintiff’s counsel submits that for a further reason the defendant fails to make good a defence under s 45(1) of the Civil Liability Act. He submits that Simi’s act was a battery and, if so, that the subsection does not create a defence to the cause of action of battery. He submitted, in effect, that s 45(1) (a) relates to only the civil liabilities which arise from a ― “breach of duty”. He submitted, in effect, that the section does not apply to a tort whose elements do not include a breach of duty.

 Battery is an intentional tort and it is not necessary to prove a duty or its breach to establish that a battery occurs. Its elements do not include as a necessary element a ― “breach of duty”. The plaintiff’s counsel relied upon the judgment in Corliss v Gibbings-Johns [2010] QCA 233. The observations relevant to this issue in the judgment of Applegarth J were obiter dicta.6 However his Honour expressed the view that the section does not apply to a case in which civil liability arises from an intentional tort such as an assault.7 Holmes JA and Chesterman JA agreed with his Honour’s reasons. I respectfully agree with their Honours reasons, obiter though they were. The same reasoning would apply to the tort of battery.

 

 [45]      What is the consequence for the defendant if the bouncer’s act was ― “lawful” because it complied with the conditions in Criminal Code s 254 or s 260? The answer appears in the Criminal Code Act 1899 at section 6 (1) and would appear to protect the bouncer from any civil proceeding for loss caused by his use of force if that use of force falls within the condition described by either section. The Criminal Code Act 1899 s 6 provides:

 “6 Civil remedies

 (1)        When by the Code any act is declared to be lawful, no action can be brought in respect thereof.”

             

[47]      It is unnecessary because of two factual matters. Firstly, I am not satisfied that the force used by Mr Simi was ― “reasonably necessary” to ―prevent the continuance or renewal of the breach of the peace by the plaintiff. Secondly I am not satisfied that the force used was ― “reasonably proportioned to the danger to be apprehended” from such continuance or renewal of a breach of the peace. The force which Mr Simi used when he performed his ― “takedown” was not such force as was reasonably necessary to prevent a continuance or renewal of a breach of the peace. A hand on the back may have been reasonably necessary but the ―takedown‖ was not. The force used by Mr Simi was also not ―reasonably proportioned to the danger to be apprehended‖ from a continuance or renewal of the plaintiff’s breach of the peace.

 Objectively: the constables were in control, the danger to be apprehended was minimal, the plaintiff’s final resistance was minimal, the only effect of the resistance was to delay the application of handcuffs. The force applied was much more than was reasonably necessary and was not reasonably proportioned to the danger to be apprehended.

 

[50]      The defendant relied also on the Police Powers and Responsibilities Act 2000 s 615…

 [51]      The force used by Mr Simi was more than ― “reasonably necessary force” to exercise the power of arrest. For that reason the section does not apply. Because of that finding it is unnecessary to determine whether Mr Simi was ― “helping the police officer” within the meaning of those words in s 615. The question appears to require an objective assessment. It appears that intent to help would be insufficient as would a mistaken belief that he was helping. The facts found suggest that Mr Simi was not ― “helping the police officer”.

 

 [55]      Was there contributory negligence? The defendant pleaded that the plaintiff’s injuries were caused or contributed to by his own negligence. Five particulars were pleaded apart from a reference to the Civil Liability Act s 47. Essentially the particulars were: failing to comply with the direction to move on, behaving violently, abusively and aggressively and becoming so intoxicated that it was reasonably foreseeable that the plaintiff’s capacity to exercise reasonable care for his own safety would become impaired. The defendant has satisfied me of all of those facts. However, I accept the submission of the plaintiff that the chain of causation between the plaintiff’s conduct and his sustaining of injury was broken.

 The police officers intervened to put an end to his breach of the peace. They were in control of the situation. They did not require nor request assistance and while the police officers had the plaintiff in custody there was no reasonably foreseeable risk of his suffering the injuries which he ultimately suffered. I do not find that the plaintiff was a cause of his own injuries.

 

 [57]      Was the defendant vicariously liable for the acts of the bouncer? The defendant denied that it was vicariously liable for the acts of its servant or agent insofar as those acts were performed in the course of, or in connection with the service or agency. The denial was pleaded to be on the basis that the ―allegations…are untrue or cannot be admitted because the issue of vicarious liability is a question of law.‖8

 The Uniform Civil Procedure Rules expressly permit a party to plead a conclusion of law. The defendant was at liberty to admit the conclusion of law. The defendant’s pleaded basis for not admitting it is embarrassing. But there is no obligation in the rules to plead a basis for denying a conclusion of law. I infer from reading the pleadings that vicarious liability remained in issue. Yet, the defendant made no submission about vicarious liability despite a comprehensive address about issues of law. Despite the omission of the topic from the defendant’s counsel’s address, vicarious liability for the bouncer seems to remain an issue.

 [58]      I find that the bouncer was authorised by the defendant to use force when dealing with disorderly persons, was authorised to guard the entrance against disorderly intrusion and was authorised to concern himself with persons in the area immediately outside the entrance who evidenced an intention to enter. The bouncer was standing guard at the door watching the plaintiff’s antics before police moved to arrest the plaintiff. The antics were an aggressive display sometimes directed at the bouncer and when not directed at him performed for the bouncer’s intimidation. The plaintiff’s conduct was disorderly until police began the process of arresting him. The bouncer moved directly from where he stood guard to intervene as police subdued the plaintiff. There was no submission for the defendant that the bouncer’s intervention was not an authorised act.

 [59]      It was observed in the judgment of Gummow and Hayne JJ in New South Wales v Lepore.9  For present purposes, it is enough to conclude that when an employer is alleged to be vicariously liable for the intentional tort of an employee, recovery against the employer on that basis should not be extended beyond the two kinds of case identified by Dixon J in Deatons: first, where the conduct of which complaint is made was done in the intended pursuit of the employer’s interests or in the intended performance of the contract of employment or, secondly, where the conduct of which complaint is made was done in the ostensible pursuit of the employer’s business or the apparent execution of the authority which the employer held out the employee as having.

 [60]      A test for vicarious liability was applied in the Supreme Court of Queensland in the year before that decision. Though expressed in different words it does not place any lesser burden on the plaintiff to establish vicarious liability. According to that test, if the bouncer’s acts amount to a tort the defendant is vicariously liable for the damage suffered by the plaintiff even for acts the defendant did not authorise provided they were so connected with the acts it did authorise that they may rightly be regarded as modes, though improper modes, of doing them.10

 [61]      The bouncer’s intervention was so connected with his authorised acts that his intervention may rightly be regarded as a way of doing his authorised acts. Alternatively, I am satisfied that the bouncer’s intervention was in the ostensible pursuit of the defendant’s business. If the intervention was a tort I find that the defendant is vicariously liable for it.

 

  • 6 Corliss at [35]
  • 7 Corliss at [36] to [40]
  • 8 FAD par 2
  • 9 (2003) 195 ALR 412 at [239]
  • 10 See Ferguson v Calnan [2002] QSC 342 [13] per Helman J referring to Daniels v Whetstone Entertainments Ltd [1962] 1 Lloyd’s Rep 1 at p5

 

Brisbane Barrister – David Cormack

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