Unreasonable force, false imprisonment, assault, battery & negligence

Barker v Commonwealth of Australia [2016] QSC 310

Jackson J

The plaintiff was injured in 2011 during the process of an arrest by an Australian Federal Police Officer (the “AFP”) and a protective services officer (the “PSO”) at the Brisbane International Airport. The plaintiff had been consuming alcohol on a flight back to Brisbane and began exhibiting disorderly behaviour when confronted by airport staff.

After a struggle with the officers, the plaintiff was taken to the ground where he suffered a left leg fracture and ankle injuries. The plaintiff claimed damages for false imprisonment, assault and battery and negligence.

False imprisonment

The plaintiff claimed that the direction by the AFP or PSO to remain on the tarmac until the time of arrest constituted false imprisonment. Jackson J found:

[65] In my view, there is no serious case of false imprisonment in these facts. The substance was that the plaintiff was reasonably requested and then directed to wait while the AFP representatives investigated the complaint that had been made requesting their attendance. I find that the plaintiff did not attempt to leave in a way that called for the AFP representatives to make an earlier decision as to whether to arrest the plaintiff in the circumstances and the directions given did not of themselves amount to a false imprisonment by overbearing the plaintiff’s will in the requisite sense.

Assault and battery

The plaintiff claimed that the force used during the arrest was not reasonable or necessary and constituted battery. Section 14B of the Australian Federal Police Act 1979 (Cth) provides that:

(1) A protective service officer must not, in arresting or attempting to arrest a person for an offence or in preventing a person who has been arrested for an offence from escaping, use more force, or subject the person to greater indignity, than is reasonable and necessary in order to make the arrest or prevent the escape of the person.

Jackson J referred to Johnson v Northern Territory of Australia and stated:

[273] This last phrase may be taken to refer to circumstances such as escape, resist or other significant non-compliance with submission to the arrest or to the continuation of offending. As the right to liberty is sacrosanct, the use of force and whether it is reasonable must be assessed in the context of orthodox and strict principles governing the power of arrest.

In assessing whether the force used in the arrest was reasonable and necessary, Jackson J found:

[80] … First, apart from the plaintiff, none of the five other people who were involved in or witnessed the arrest noticed or saw any circumstances that were indicative of unreasonable or unnecessary force being used to arrest the plaintiff.

[82] Second, in my view, it was not unreasonable or unnecessary for the AFP officers to take the plaintiff to the ground. Again, the general tenor of the evidence of the witnesses other than the plaintiff was that the plaintiff resisted the arrest and sought to break free. In those circumstances it was not unreasonable … to take the plaintiff to the ground and apply handcuffs to restrain him. In the lead up to the arrest, the plaintiff had made several direct physical threats and made many abusive comments to those standing nearby. He had physically displayed signs of anger and rage, including clenching his fists.

[83] Third, it is not entirely clear what mechanism caused the plaintiff’s leg fracture and ankle injury. It is apparent enough that there must have been a twisting load applied to the bone so as to cause what was later discovered to be a fracture. However, there is nothing in the evidence otherwise to suggest any particular force or pressure applied to the plaintiff’s lower leg so as to cause the injuries.

Dismissing the plaintiff’s claim, Jackson J was not satisfied that the force used in the arrest was unreasonable or unnecessary.

Negligence

Alternatively, the plaintiff claimed that the personal injuries were caused by negligence. Referring to Dowse v New South Wales and State of Victoria v Richards Jackson J found that there was no duty of care owed to the plaintiff.

Assessment of Damages

His Honour did not assess damages as the components of damages largely did not depend on disputed questions of fact.

David Cormack – Brisbane Barrister & Mediator

Related Posts

Recent Comments

    Categories