Tear-gassed detainees entitled to compensation

Limelight Articles

Limelight 09/23

Tear-gassed detainees entitled to compensation

Author, Katrina Fitzgerald

The recent decision of the Northern Territory Supreme Court in Binsaris, Webster, Austral & O’Shea v Northern Territory of Australia [2023] NTSC 79 provides guidance on the assessment of damages for civil claims for assault and battery where there is not also a personal injury claim.

Background

The plaintiffs were detainees within the Behaviour Management Unit (BMU) at the Don Dale Youth Detention Centre (the Centre) in the Northern Territory.

On around 5.00pm on 21 August 2014, another detainee escaped from his cell, damaged property and caused a serious disturbance. Early in the disturbance, two of the plaintiffs joined in by damaging property within their cell, but, at all times, remained within the cell.

As part of the response to the disturbance, those in charge of the Centre decided to employ CS gas (a form of tear gas) with a view to temporarily incapacitating the detainee who had initiated the disturbance, so that he could be taken back into safe custody.

While the plaintiffs were not the target of the CS gas, they were exposed to it. The Centre staff used three bursts of less than one second each in the BMU, followed by another burst of about two seconds. A second deployment was then used consisting of about six short bursts of the gas in the BMU. There is evidence that the plaintiffs were exposed to the gas for between 3 and 6 ½ minutes. Once the initiating detainee was secured, the cells in the BMU were unlocked and the plaintiffs were handcuffed behind their backs and taken to a basketball court where they were hosed down to remove any residue of the gas.

Each plaintiff commenced a proceeding against the Northern Territory claiming damages for assaults and batteries said to have been committed during the events of 21 August 2014 and the following days.

Original decision and appeals

The trial judge held that the deployment of CS gas was lawful. This was upheld on appeal to the Northern Territory Court of Appeal. Following a further appeal, the High Court set aside those orders and remitted the plaintiff’s claims to the Northern Territory Supreme Court to assess damages.

During the remitted hearing on damages, the plaintiffs submitted that they were treated in a rough manner and were not properly decontaminated or given proper first aid in accordance with proper procedures, considering how dangerous CS gas is. None of the plaintiffs were given timely medical attention. One of the plaintiffs recalled seeing a nurse for around two minutes at 10pm. Two of the plaintiffs were asthmatic and were at greater risk due to their medical conditions.

The plaintiffs also submitted that the deployment of the CS gas was unlawful and constituted an offence under the Weapons Control Act 2001 (NT). This was relevant to an award of exemplary damages.

The Northern Territory, as defendant, submitted that those who made the decision to deploy CS gas did so in a pressured environment while attempting to regain control of the BMU. It also submitted that the plaintiffs were removed from the BMU as quickly as could be safely managed and were decontaminated. The plaintiffs engaged in coughing, spitting, swearing and laughing as they were being decontaminated.

Decision

Each of the plaintiffs received an award of between $20,000 – $30,000 in general damages based on the impact of the incident on them. Three of the plaintiffs received aggravated damages in the range of $15,000 – $20,000, again based on their individual circumstances.

Her Honour Justice Blokland stated that the awards for general and aggravated damages were appropriate for the amount of time the plaintiffs were subject to mistreatment constituting battery and its associated distress, both physical and psychological.

Her Honour Justice Blokland then considered the question of exemplary damages and observed that exemplary damages may be awarded for any tort that is committed ‘in circumstances involving a deliberate, intentional or reckless disregard of the plaintiff’s interests’. Whatever the cause of action, there must have been ‘conscious wrongdoing in contumelious disregard for another’s rights.’

Each plaintiff received $200,000 for exemplary damages “to ensure the defendant knows this must never happen again and to show the Court’s disapprove (sic) of unlawful force being used on children or youths in detention.”

Her Honour also awarded exemplary damages on the stated basis that the plaintiffs were for the most part, bystanders. They were not the reason for which the CS gas was deployed. They were under the age of 18 and the Northern Territory was responsible for their safety and welfare. Her Honour found that the plaintiffs were treated in a manner which recklessly disregarded their rights and interests.

In making the decision, her Honour considered a number of decisions.

In Bulsey v State of Queensland [2015] QCA 187, the plaintiff’s home was forcibly entered by 6 members of the police ‘special emergency response team’ in the early hours of the morning. The male plaintiff was taken from his bed, handcuffed and dragged into the street. He was then held in custody, questioned, charged and remanded in custody. Ultimately, the charges against him were dropped. The female plaintiff was faced with a team of armed police entering her home and shouting orders at her. The Queensland Court of Appeal awarded $165,000 in damages to the male plaintiff and $70,000 to the female plaintiff for assault, battery and false imprisonment. Exemplary damages were excluded by statute, so these sums comprised only general and aggravated damages.

In Majindi v Northern Territory [2012] NTSC 25, the plaintiff was 31 years old and awarded damages for assault and battery, unlawful arrest and false imprisonment. He had been falsely imprisoned for 5 hours and 40 minutes, sustained a blow to his head with a baton, was handcuffed, unlawfully searched twice and struck a second time. He was awarded $105,000 which included exemplary damages of $40,000.

In Wooton v State of Queensland (No 5) [2016] FCA 1457, the plaintiff was awarded $95,000 in damages under s 9 of the Racial Discrimination Act 1975 (Cth) following the arrest, tasering, handcuffing and shackling of the plaintiff arising out of a large-scale police operation during the 2004 protests on Palm Island. Of that sum, $65,000 was for physical shock and temporary pain and humiliation and anxiety. The Court had no power to award exemplary damages.

In Cruse v State of Victoria (2019) 59 VR 241, a claim in assault and battery was brought against police. In the course of a counter terrorism investigation, several members of Victoria Police raided the plaintiff’s family home and arrested the plaintiff, causing injuries to his head and upper body. The plaintiff was subsequently diagnosed with PTSD, major depression and anxiety. The plaintiff was awarded $400,000 in damages for assault and battery including $200,000 in general damages, $80,000 in aggravated damages and $100,000 in exemplary damages.

In White v South Australia (2010) 106 SASR 251, a number of protesters were unlawfully arrested, falsely imprisoned and subject to various batteries. One of the protesters was an 11 year old girl. She was in a group of protesters who were sprayed by police with capsicum spray. She was affected by the gas, was in fear and suffered pain and discomfort as a result of the use of the gas. She was awarded $10,000 in general damages, $5,000 in aggravated damages and $3,000 in exemplary damages.

Another adult offender in that case was tackled to the ground by police and her face was pushed into the dirt and her hair was pulled. She was restrained and sprayed with capsicum spray at close range in the eyes and nose. She was unlawfully arrested and placed in a vehicle. She was verbally abused by police and insulted. Personal items were broken or damaged as a result of police conduct. She was imprisoned in a shipping contained for three hours and exposed to fumes and smoke from nearby welding. She was falsely imprisoned for a total period of seven hours. As a consequence, she suffered depressed mood and anxiety for two years. She was awarded $40,000 in general damages, $25,000 aggravated damages and $15,000 in exemplary damages.

Implications

This case, and the cases it summarises, should assist lawyers and claims officers in assessing awards of damages in custody cases that do not involve a personal injury element. As such cases rarely proceed, the number of decisions across Australia has been limited.

Katrina Fitzgerald Senior Associate, Adelaide Direct: + 61 8 8215 7035 kfitzgerald@gclegal.com.au

This publication constitutes a summary of the information of the subject matter covered. This information is not intended to be nor should it be relied upon as legal or any other type of professional advice. For further information in relation to this subject matter please contact the author.