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Accident Compensation Cases

Archbold v Attorney-General (HC, 01/04/03)

Judgment Text

This is a claim for exemplary damages and public law compensation. The case arises out of the plaintiff's allegation that police officers assaulted him after he was arrested in the early hours of 31 July 2001. 
Factual background 
In the early hours of 31 July 2001, the plaintiff, Shane Colin Archbold and a friend, James Hobden, broke into a camera shop and stole two cameras. They were observed by security officers. They left the scene by car but shortly afterwards abandoned the car and endeavoured to make good their escape on foot. James Hobden was soon apprehended but the plaintiff was temporarily able to elude capture. He went onto a residential property and concealed himself in a narrow space between a garage and the adjacent boundary fence 
He was tracked down by a police dog and the dog's handler, Senior Constable Bruce Lamb. Senior Constable Lamb removed him from his hiding place. He was brought out on to the driveway in front of the garage. There Senior Constable Lamb received assistance from Constable Aaron Brady. 
The plaintiff was then handed over to Constable Richard Carolan who came up the drive from the road. Constable Carolan took the plaintiff down the driveway to where his car was parked on the road. The plaintiff was placed in a police car and taken to Christchurch Central Police Station by Constable Carolan and his partner, Constable Turnbull. 
The plaintiff claims that during these events he was seriously assaulted. When his evidence is assessed in the context of the other evidence called in the case, it is clear that he is alleging that he was assaulted by Senior Constable Lamb, Constable Brady and Constable Carolan. 
The allegations against Senior Constable Bruce Lamb and Constable Aaron Brady 
It will be recalled that the plaintiff was located by Senior Constable Lamb's dog while he was concealing himself between a garage and a boundary fence. 
The plaintiff says that Senior Constable Lamb hit him over the left eye with his torch and kicked him. On the plaintiff's evidence he was then handcuffed (with his hands in front of him) and dragged out of the area in which he was hiding and onto the driveway in front of the garage. He was then pulled forwards onto the ground and kicked again and another police officer (who could only have been Constable Brady) put his knee into the small of his back. 
These allegations are denied by Senior Constable Lamb. He says that when he entered the narrow gap between the garage and the fence the plaintiff was feigning sleep. Accordingly he tapped the bottom of the plaintiff's feet. The plaintiff responded by kicking out with his feet in a “biking motion”. At this point Constable Brady (who had clambered onto the roof of the garage) made his presence known and the plaintiff calmed down. So Senior Constable Lamb dragged the plaintiff out of the area in which he had been hiding to the driveway and he then pushed him to the ground. It was not until this point that the plaintiff was handcuffed. From this point Senior Constable Lamb was no longer directly involved with the plaintiff. 
Senior Constable Lamb's evidence was supported by Constable Aaron Brady. It was Constable Brady who assisted Senior Constable Lamb once the plaintiff was on the driveway. He says that the plaintiff was not fighting but was non-compliant. Constable Brady agreed with Senior Constable Lamb's evidence that it was not until this point that the plaintiff was handcuffed and said that this was with his hands behind his back. He denied the use of any inappropriate force. 
Allegations against Constable Richard Carolan 
It is common ground that Constable Carolan took the accused down the driveway to his police car which was on the road. 
The plaintiff says that Constable Carolan had him in a head-lock and had his fingers in his eye. He said that the constable told him to stop biting his fingers, something which he was not doing. He was then swung, head first, into the side of the house. He was dragged to the police car and put in the back. On the way to the police station Constable Carolan sat on top of him and applied his knuckle hard on his neck just below his ear. 
Constable Carolan said that nothing untoward happened save for a minor accident which occurred as he went down the drive with the plaintiff through a narrow gap between a car parked on the drive and the house. At this time, on his evidence, the plaintiff was “playing up”. He says that they both stumbled and he suggests that it is possible at this time that the plaintiff may have injured himself. He cannot recall much of the trip back to the police station (save that the plaintiff was noisy and abusive and kicking the back of the front seat). Given what he can recall of the plaintiff's behaviour, he thought it possible that he (or perhaps Constable Turnbull) had applied a mastoid hold on the plaintiff. 
Constable Aaron Brady recalled seeing Constable Carolan and the plaintiff stumble as they were walking between the house and a vehicle parked in the driveway and recollected Constable Carolan falling on top of the plaintiff. His evidence generally supports that of Constable Carolan. 
The plaintiff's injuries 
When the plaintiff arrived at the Christchurch Central Police Station he had some obvious injuries. These are depicted in photographs which were taken in the Watchhouse at the police station and later at Christchurch Prison (to which the plaintiff was remanded in custody after his appearance in the District Court later in the morning of 31 July). 
The injuries which are apparent in the photographs are as follows:- 
A lump and some abrasions in the vicinity of his hairline on his forehead; 
Abrasions around his right eye; 
More obvious abrasions, cuts and bruising around his left eye and on his left cheek in the general vicinity of the left side of his mouth. 
What would appear to be a bruise or a pressure mark on the left side of his neck. 
The prison nurse who examined the plaintiff on his arrival at Christchurch Prison also recorded injuries or complaints of soreness additional to those which I have just mentioned:- 
Soreness on the chest. 
Soreness in the back. 
Reddening around the wrists associated presumably with the use of handcuffs. 
Broken skin on the calf on the left leg. 
Similar fact evidence 
The plaintiff relies on similar fact evidence relating to an incident between Constable Carolan and a man called John Harden which occurred a little later but still during the early hours of 31 July. 
I confess to some dissatisfaction as to the way that this was dealt with. 
Given that the plaintiff intended to rely on this second incident on a similar fact basis, it would have been sensible to lead evidence as to it, for instance from Harden or the other police officers involved. The evidence shows that Constable Carolan was subject to disciplinary proceedings as a result of this incident and the charge against him was upheld in part on the evidence of another police officer. So it would not have been very difficult to call the relevant evidence. In fact, no such evidence was lead as part of the plaintiff's case and counsel for the plaintiff sought to establish the facts of the other incident through cross-examination of Constable Carolan. 
On this approach, it would have been prudent for Constable Carolan to have been cross-examined as to the detail of what he acknowledged to have happened in the other incident. Instead he was cross-examined in a pretty tendentious way with counsel putting to him propositions based on the findings in the earlier proceeding. Since Constable Carolan did not accept that those findings (at least in all their details) were accurate, this style of cross-examination was unlikely to produce anything of evidential value. In the course of cross-examination, Constable Carolan did, however, indicate a willingness to concede that there had been some inappropriate behaviour on his part and in response to questions from me conceded that he had used inappropriate force on Harden. 
The evidence as to this is as follows: 
Well can you recollect today that you kicked a handcuffed prisoner ie Mr Harden later on that night 
I believe we've just discovered that and I disagree. 
And you were told as a result the enquiry by the Assistant Commissioner that your misconduct was serious and that it had been found you kicked a handcuffed prisoner in the head. You believe this was an erroneous finding do you. 
The circumstances pertaining that to completely separate incident are, the best way to describe it for myself I believe to be confused. I accept the findings relating to myself. I do not accept the facts as outlined. 
What do you mean by that, you accept the findings in that you haven't appealed or you accept that they are right. 
I've accepted that excessive force has been found against myself Your Honour. 
So you accept. 
I do disagree with the specifics of the way the facts were outlined as in the action. 
Do you accept that you did use excessive force. 
Consisting of what. 
Sir my recollection of the events I restrained the offender incorrectly with a foot. I did not kick him ”
That is pretty much all there was in terms of actual evidence as what happened between Constable Carolan and Harden save that I am prepared to draw the inference from the way the evidence as a whole was given that this incident occurred at a time when Harden was handcuffed. While I am entitled to clarify uncertainties or ambiguities in the evidence (which is what I did in the passage I have set out), it is not my job to cross-examine a defence witness with a view to establishing the plaintiff's case. It is fair to say that the plaintiff's case may well have been much further advanced if to what happened between Constable Carolan and Harden had been proved in evidence or if Constable Carolan had been cross-examined with a view to establishing the full details of what he was prepared to acknowledge. 
There is another irritating aspect to all of this. It would appear that the police authorities regarded Constable Carolan's personal circumstances at the time as a contributing factor to what happened between him and Harden. When this was put to him, Constable Carolan accepted that this had been the approach of the police authorities but denied that his personal circumstances had in fact been a factor in his behaviour on 31 July. There was more tendentious cross-examination about this but no attempt to obtain from Constable Carolan the details of just what his circumstances were. So all I know is that the police authorities regarded his personal circumstances (about which I know nothing) as a contributing factor but Constable Carolan does not accept that his personal circumstances were material to what happened on 31 July. So all of this is of no evidential value. 
Another unsatisfactory aspect of all of this is that the defence did not discover the relevant material as to this incident despite requests for it from the plaintiff. This stance was apparently justified at the time on the basis that the material was irrelevant. But it is perfectly obvious that this material was relevant. 
The similar fact principles which apply in civil cases in judge-alone trials are broadly similar to those which apply in criminal cases although in such cases the Courts are less reluctant than in criminal cases to admit similar fact evidence, see Thorpe v Chief Constable of the Greater Manchester Police [1989] 1 WLR 665 at 670 per Dillon LJ. 
In the early hours of 31 July two men were brought into the Watchhouse with obvious and fresh injuries. One was the plaintiff (who arrived at or around 3.50 am) and the other was Harden (who arrived at 5.30 am). Harden's injuries were such that he saw a doctor at 5.50 am. The police evidence as a whole suggests that it is not common (although it does happen) for prisoners to be brought into the Watchhouse with fresh injuries. So the fact that two injured men were brought in less than two hours apart is out of the ordinary. In this context it is a striking fact that both had been under the control of Constable Carolan before being received in the Watchhouse. Constable Carolan accepted the use of excessive force against Harden (involving incorrect restraint with a foot) at a time when Harden was handcuffed. The allegation which the plaintiff makes is that Constable Carolan used excessive force against him when he too was a handcuffed. Given the unities of time, place and circumstance, it is perfectly obvious that the evidence (exiguous as it is) in relation to Harden does, logically, reinforce the evidence which the plaintiff has given. I will revert to this point later in this judgment. 
How the plaintiff's complaint surfaced 
The plaintiff's injuries were perfectly obvious when he arrived at the Watchhouse. The reception form records some of the injuries and also that the plaintiff had no complaints. Whether this is a reference to a particular question put specifically to the plaintiff or simply is a reference to no complaint being made spontaneously is not clear. The plaintiff was not cross-examined on the point. 
When the plaintiff was examined at Christchurch Prison later that day he attributed his injuries to an assault. No particulars were been obtained from him as to the detail of the assault. 
No formal complaint seems to have been made by the plaintiff until early 2002. So the police officers involved in the relevant events were not on notice that their actions were under challenge until many months after 31 July 2001. 
The plaintiff was not cross-examined about this sequence of events. In particular it was not suggested to him that he was attempting to piggy-back on Harden's complaint. This is not surprising given the defendant's position that evidence as to the Harden incident was irrelevant. I mention the point simply to note that this was not a live issue at trial. 
The delay may well have prejudiced the police witnesses. If what they say is right this was pretty much just another day at the office, the detail of which they could not fairly be expected to recall. They did not record in writing details of the incident in a way which is material to the present case. So it is not surprising that their evidence was not entirely consistent and it is quite possible that aspects of what happened have now escaped their memories. 
The delay must also have had an effect on the plaintiff's ability to recall the detail of the events. There is nothing to suggest that he made a contemporaneous record of the detail of what happened. 
Key findings of fact 
The allegations which the plaintiff makes are serious. I must allow for that in my assessment of what I find to be proved and not proved. I can also hardly ignore the fact that the plaintiff is a criminal. This is necessarily relevant to the credibility assessments I must make. 
Allowing for these considerations, I am nonetheless satisfied that the police did use unnecessary violence. 
I am not a great believer in demeanour-based credibility assessments and my conclusions are not heavily influenced by such assessments in this case. I should, however, record briefly my views about the plaintiff. 
I was not left with the view that the plaintiff was lying. Where I have reservations about his evidence, it is largely because I suspect that he may have filled in gaps in his recollections of the precise detail of the events which occurred. It is certainly possible that some of his evidence involves reconstruction based around the hard facts (which include the injuries which he suffered). I also think that he was inclined to exaggerate. There were a number of aspects of his evidence which seemed to me to involve exaggeration. In this context a single instance should suffice to illustrate what I mean. The plaintiff claims to have been bleeding to a significant extent while in his cell in the Watchhouse. On arrival at the Watchhouse he was placed in white overalls in which he was later photographed in prison. The prison photographs do not reveal blood on the collar of overalls. I would have expected to see signs of blood in the photographs if his account of the extent of his bleeding was correct. 
I have no difficulty believing that the plaintiff's attitude in the early hours of 31 July was rather different from what he displayed in Court. 
The police witnesses gave evidence as I would expect and there was nothing in what they said or the way in which they said it which troubled me. 
Although I must allow for the possibilities that the plaintiff has tailored his evidence to fit his injuries and that some or all of these injuries may have been accidentally inflicted in the course of his flight from the police the realities are that his injuries are consistent with his evidence and only explicable awkwardly on the police evidence. There are three distinct sets of facial injuries; first on his forehead: secondly around his right eye; and thirdly around his left eye and on his left cheek. There was no expert medical evidence as to how they could have been inflicted but I think that I am entitled to draw some common-sense inferences from where these injuries were and their appearance. The most likely explanation for them is that there were three separate applications of force. In their totality, the injuries do not look to me as if they were all suffered accidentally. So if it was just a case in which there was the plaintiff's evidence and that of the police officers, I would be troubled, to say the least, by the injuries. 
I have been significantly influenced by the similar fact evidence; this despite the unsatisfactory way in which it came out. 
In the case of Constable Carolan the significance of the similar fact evidence arises in this way:- 
The plaintiff had been in Constable Carolan's custody while handcuffed and he arrived at te watchhouse with fresh injuries. 
These injuries are consistent with the plaintiff's account. 
Less than two hours later Harden arrived at the Watchhouse with fresh injuries. 
Constable Carolan acknowledged using excessive force towards Harden while he was handcuffed. 
So the defence-case involves the coincidence that the plaintiff should make a false complaint of assault in relation to an incident which occurred within two hours or so of another incident involving Constable Carolan in which the latter undoubtedly did use excessive force against a handcuffed man. This does not strike me as a particularly plausible coincidence. As to this, I reiterate that it was not suggested to the plaintiff in cross-examination that he had colluded with Harden. 
This use of excessive force against Harden is also of logical relevance to the evaluation of the defence that injuries suffered by the plaintiff may have resulted from an accidental fall while he was being escorted down the driveway by Constable Carolan. 
For all the reasons which I have given, I am driven to the conclusion that some at least of the plaintiff's injuries were inflicted by Constable Carolan using inappropriate force in the driveway. In this category are the injuries to the plaintiff's forehead (which I believe were caused as the plaintiff alleges) and some of the injuries around his eyes. I also conclude that the Constable did use a mastoid hold on the plaintiff in the car on the way to the police station. If this was a result of the way the plaintiff had been behaving in the car (and I accept that this may well have been so), then this behaviour would have been contributed to by what had happened in the driveway. 
I have found the allegations against Senior Constable Lamb and Constable Brady more problematical. 
Senior Constable Lamb and Constable Brady were involved in the later incident which resulted in Harden and his co-offender being apprehended. It was not suggested, however, that they were implicated in the use of excessive force against Harden. So the similar fact evidence which is referable to Constable Carolan has no probative value as far as the complaints about their behaviour are concerned. On the other hand, the plaintiff's account is obviously, in part, corroborated by his injuries because I struggle to see how the plaintiff's injuries, in their totality, could have been suffered accidentally. 
In the end, I have concluded that the allegations against Constable Lamb and Brady have not been made out to the appropriate standard. The key reasons for this conclusion are as follows:- 
Given the closely balanced nature of the exercise, I am troubled by the delay. 
I have been left with the view that there may well have been an element of reconstruction about the plaintiff's evidence. There was a degree of vacillation in his evidence as to whether Constable Lamb struck him over the left eye or the right eye with the torch. My impression is that the evidence which he gave on this point was not completely based on the evocation of genuine memories but also involved a reconstruction of what he believed happened given the particular injuries which he suffered. 
I have some difficulty (and this may be my fault) visualising a serious assault by Senior Constable Lamb on the plaintiff which involved a torch. A torch is a slightly unusual choice of weapon. I imagine that Senior Constable Lamb would have been reluctant to put himself in the sort of position vis-a-vis the plaintiff which would have been necessary for him to have struck such a blow. The gap between the boundary fence and the garage is narrow. Senior Constable Lamb is a big man who would not have found it easy to negotiate this gap. The plaintiff's head would have been away from Senior Constable Lamb as he approached him. 
The injuries in the vicinity of the plaintiff's eyes do not provide obvious support for the plaintiff's contention that the injuries in relation to one or other of his eyes were caused with a torch. I have expressed this conclusion cautiously and in negative terms because there was no expert evidence. 
I am inclined to accept the police evidence to the effect that the plaintiff was initially uncooperative. In those circumstances, it would not be surprising if some force was applied to him by Senior Constable Lamb when he was first located; this to attract his attention (if he was feigning sleep as the Police say), to get him onto his feet (because he was lying down when he was first located) and to extract him from the gap between the fence and garage (and it is common ground that some force was used in this process). As I have already indicated, I think there is a risk that some of the plaintiff's evidence was exaggerated and this could be particularly significant in relation to this phase of events. 
There is scope for doubt as to whether it was necessary for Senior Constable Lamb to pull the plaintiff to the ground on the driveway in front of the garage. I am, however, very reluctant to second guess decisions made by police officers in situation such as this and am prepared to accord a fair margin of appreciation to the police officers as to what was reasonably required. 
In the end I am not satisfied that either or both of Senior Constable Lamb and Constable Brady assaulted the plaintiff. 
The claims made by the plaintiff 
Against that background I can address the claims made by the plaintiff. 
In light of the findings of fact which I have made and concessions made by counsel for the plaintiff in her closing submissions, I am required to deal only with:- 
The second cause of action which relates to violence used against the plaintiff by Constable Carolan; and 
The third cause of action seeking public law compensation based on s 25(3), New Zealand Bill of Rights Act. 
The second cause of action 
The defendant's principal contention is that exemplary damages should not be awarded against a defendant whose only liability is vicarious. 
There are two decisions in this Court in which a similar proposition has been considered and rejected, see Carrington v Attorney-General [1972] NZLR 1106 and Monroe v Attorney-General (unreported A617/82 Auckland Registry, judgment of Prichard J delivered 27 March 1985). As well, there are many cases in which awards of exemplary damages have been made and upheld against defendants whose only liability was vicarious but without this point being argued. McLaren Transport Ltd v Somerville [1996] 3 NZLR 424 is an example. 
Further, my reading of the speech of Lord Hutton in Kuddus v Chief Constable of Leicestershire [2001] 2 WLR 1789 at 1809-1811 suggests that he is inclined (provisionally) to support the availability of exemplary damages in situations such as the present. The English Law Commission has also recommended that exemplary damages remain available where vicarious liability is invoked, see Law Commission, Aggravated, Exemplary and Restitutionary Damages (Law Com No 247 1997) at paras 5.81-5.99. 
On the other hand, there is academic support for the view that exemplary damages ought not to be available against defendants whose only liability is vicarious, see for instance Professor Todd Exemplary Damages [1998] 18 NZULR 145 at 179 and Professor Smillie, Exemplary Damages for Personal Injury [1997] NZ Law Review 140. To the same effect is a remark by Ronald Young J in S v Attorney-General (2002) 22 FRNZ 39 in which that Judge indicated that only a defendant who was personally complicit or blame-worthy in respect of the underlying tort could be subject to an award of exemplary damages. Finally, there is the speech of Lord Scott in Kuddus in which he expressed the strong (although ultimately only provisional) view that exemplary damages ought not, as a matter of principle, be awarded in vicarious liability cases. 
There is a circular quality to many of the arguments about exemplary damages. For instance, if the sole justification for the right to recover damages is the provision of compensation for loss, then exemplary damages are indeed anomalous. But, if the law as to damages serves purposes which go beyond the compensatory, then the allegedly anomalous status of exemplary damages is more questionable. In all of this, the drift of the cases is more important than any personal view I might have. 
If the exemplary damages jurisdiction was properly seen as being as unsatisfactory as is sometimes claimed, I would have expected the Courts and the legislature to have seized every available opportunity to restrict or limit the scope of exemplary damages and to have resisted vigorously any attempts to expand the scope of the remedy. In fact, however, the very reverse has happened over the last 20 years or so. 
I can illustrate this by reference to what has happened in New Zealand; in particular:- 
The refusal by the Court of Appeal in Taylor v Beere [1982] 1 NZLR 81 to apply the Rookes v Barnard [1964] AC 1129 approach in New Zealand. 
The decision by the Court of Appeal in Donselaar v Donselaar [1982] 1 NZLR 97 that exemplary damages in personal injuries cases were not excluded by the accident compensation legislation. 
The reversal by Parliament, via s 396 Accident Insurance Act 1998, of the Court of Appeal judgment in Daniels v Thomson [1998] 3 NZLR 22 which denied the right to seek exemplary damages where there has been a criminal prosecution. 
The extension of the right to seek exemplary damages to purely commercial cases, see for instance Aquaculture Corporation Ltd v New Zealand Green Mussel Co Ltd [1990] 3 NZLR 299
The upholding of the right to claim exemplary damages against the estate of a deceased wrong-doer, see B v R (1996) 10 PRNZ 73
Most recently the decision of the Privy Council in A v Bottrill [2002] 3 WLR 1406 upholding the availability of exemplary damages even in cases where conscious wrong-doing cannot be established. 
This tendency has not been confined to New Zealand. Kuddus could be regarded as either involving an expansion of the right to seek exemplary damages or alternatively an opportunity to restrict the jurisdiction which was not taken. As well. there are the Australian and English insurance cases. In Lamb v Cotogno (1987) 164 CLR 1, an award of exemplary damages which was covered by compulsory insurance was upheld. Reference can also be made to Lancashire County Council v Municipal Mutual Insurance Limited [1996] 3 WLR 493
Mr Powell, for the defendant, invited me to restrict the scope of exemplary damages in a way which is inconsistent with the existing and conventional practice. If I were minded to accede to that suggestion, the material to which I have referred in paras [56] and [57] above would make dispiriting reading. 
Whether exemplary damages ought to be available in vicarious liability cases is a point upon which reasonable opinion can legitimately differ, see paras [51], [52] and [53] above. In that context, and given the pattern of the authorities referred to in paras [56] and [57], I propose to follow Carrington and Monroe

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