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12 April 2018

How Much is a Broken Back During an Arrest Worth?

There has been a fair bit of publicity in recent days where members of the public have received some unwanted attention from the police.

A decision handed down in the District Court in Brisbane on 23 March 2018 shows some of the issues that can arise when such cases come before the courts.

The case of Hunold v Twinn and the State of Qld [2018] QDC 43 arose out of the arrest of Mr Hunold (“the Plaintiff”) in the early hours of 22 August 2009 in Surfers Paradise.  The Plaintiff along with his sister and cousin were involved in a fracas with others on Orchid Avenue.  The Plaintiff was arrested for public nuisance and alleges he was injured in the process.  He claims the actions of the arresting officer amounted to an assault and battery and was left with a lumbar fracture, bruising to his forehead and an adjustment disorder with mixed anxiety and depressed mood.

The circumstances of the arrest were in issue.  The police said they reasonably suspected the Plaintiff had committed, or was committing, an offence and they were authorized, pursuant to the Police Powers and Responsibilities Act, to arrest him and, in the process, to “use the force reasonably necessary to effect the arrest”.

As is typical in such cases, the Plaintiff’s credit was in issue.  Part of the evidence was that the Plaintiff asked the medical examiner who was doing an assessment for his discharge from the Army on 30 September 2011 “not to include other injuries that were not the subject of this claim in the examiner’s assessment ‘as they would potentially bias the outcome of civil proceedings’”.  There were also the obligatory Facebook posts which were arguably inconsistent with his allegations of ongoing back pain.

The Judge said that “the Plaintiff’s evidence at times was less than forthright and conveniently selective.  However, it is too simple an approach to make a general conclusion that it is unsafe to accept any of his uncorroborated evidence”.  He did say however that “it follows that a careful assessment of the Plaintiff’s evidence is required”.

The questions asked:

In determining the issue of liability, the Judge raised the following questions:

  1. What were the circumstances leading up to the Plaintiff’s arrest on 22 August 2009?
  2. Was the force used to affect the arrest reasonably necessary?
  3. If the force used was not reasonably necessary what injury did the Plaintiff suffer as a result of the arrest?
  4. What impact did the injury have on the Plaintiff’s life?
  5. Has the Plaintiff suffered a psychiatric injury?
  6. Are the defendants liable for any psychiatric injury suffered by the plaintiff?

The Plaintiff said he was trying to break up a fight between his sister and cousin and others.  His arrest was captured on CCTV which was played at trial and tendered into evidence.

The Judge ultimately preferred the version of events as recollected by the Plaintiff.  He found the Plaintiff was not behaving in a violent manner prior to his arrest but the police officer had grounds to form a reasonable suspicion he was committing an act of public nuisance.  He also found that the police officer failed to properly identify himself prior to grabbing the Plaintiff from behind.

The Judge found that the police officer made a relatively quick decision to take the Plaintiff by surprise and grabbed his shoulders before taking him to the ground.  He found that application of force was reasonably necessary to affect an arrest. He found further that the officer struck the Plaintiff in his lower back, which is what caused the fracture, in order to force him to lie on his stomach.  At that stage, the Plaintiff was not aware he was being arrested and the officer had not identified himself as a police officer.  He held that further application of force was not reasonably necessary to affect an arrest of the Plaintiff for public nuisance.

The Plaintiff considerably embellished his evidence regarding his pre-accident health and the impact of the subject injuries.  He suffered from a fairly significant compartment syndrome in both legs which affected the extent of physical activity he could undertake. He also suffered from ongoing back pain prior to the subject injury and an x-ray showed a scoliosis.  His unrelated injuries could have adversely impacted on his ability to undertake an active deployment.

The Plaintiff consulted the base doctor following the incident.  He was told that he could expect spontaneous healing of the fracture within 6 weeks.

The Plaintiff submitted that the subject injury prevented him from obtaining the necessary fitness levels for active duty.  The Court did not accept that submission. Medical imaging noted unrelated disc bulges at L4/L5 and L5/S1.

The Plaintiff was medically retired from the Army on a pension from 15 August 2012.

The Plaintiff had a limited post-discharge work history.  He painted a pretty bleak picture of his life which was challenged via various Facebook posts.

On balance, the Judge found that the Plaintiff’s lumbar fracture was fully resolved in just over 12 months from the date of injury and that the Plaintiff was not suffering from a psychiatric injury.

The Judge assessed damages at a modest $27,500, comprising $11,000 for general damages, $1,500 for out-of-pocket expenses and $15,000 for past economic loss on the basis of the possibility of the Plaintiff not being able to take up deployments whilst affected by the lumbar fracture.

The case highlights the complexities in such cases and the scrutiny applied to pre-accident medical issues.  It is also a salient reminder of the potentially negative impact of inconsistent Facebook posts.

 

 


Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).

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