In Hannam v State of New South Wales (No 9) [2022] NSWSC 648, the plaintiff sued police for assault, battery and negligence.  The plaintiff had consumed ‘several’ schooners of beer during a long session that began around midday and ended with his fall from a fourth floor apartment around midnight. 

After drinking at hotel the plaintiff and a number of other people went to a friend’s apartment.   Some of those people reported taking MDMA; ‘The plaintiff asked whether he could have some too. They agreed.’ ([20]).  At [23] Adamson J said:

As soon as the plaintiff snorted the powder, he felt that people were laughing at him. The drug made him feel “angry”, “not right”, “wrong”, “uncomfortable” and “off”. He recalled saying to “no one in particular”, “I didn’t sign up for this.” He felt that he had been given “something else” which was not MDMA and that he had been “stitched up”. Whatever he took on this occasion made him “angrier than [he] had ever felt before”. MDMA had not previously made him angry. The plaintiff agreed that, before he snorted the drug, he had no way of knowing what it was.

The plaintiff had no recollection of events after that but the evidence was that he ended up on the balcony of the apartment.  Other people at the party were concerned and rang triple zero asking for police and ambulance assistance.

The Triple-0 call lasted for a total of about nine minutes. Ms Glynn told the operator that about 10 people at the residence were “massively concerned” and “really worried” about the plaintiff because he “completely intention[ally]” had some drugs (MDMA) and was threatening to throw himself off the balcony. Ms Glynn told the operator that the plaintiff was “semi-violent” in the sense of being “just not there”, that he was “completely off the planet” and “being a fucking weirdo”. She also told the operator that friends were out on the balcony trying to pacify him “but we’re not trusting this anymore”. Ms Glynn told the operator that he had been “forced into a mental institution”, that he has “issues”. She described the plaintiff as a “big boy” who weighed about 110kg, and who could be expected to become agitated when the ambulance came. She also told the operator that the plaintiff would be “antagonistic”.

A least eight police officers attended the scene. Six officers ended up on the balcony, two were trying to talk to Mr Hannam whilst the other four tried to take up positions to stop him jumping off the balcony. One of the police, Probationary Constable Herold, was armed with a Taser.  At [57]-[61]:

The plaintiff, who was “very angry” and “very abrupt” and “waving his arms”, picked up the picnic table and either slammed it down or let it bounce back down, which caused a loud noise. Probationary Constable Herold recalled the plaintiff clenching his fists and pacing around. The plaintiff took hold of at least one of the planks in the table top and dislodged it from the table. Constable Goulding, who was then about 4 or 5m away from the plaintiff, was impressed by the plaintiff’s strength. …

At about that time, the plaintiff turned 90 degrees to his right … which meant that he had his back to Probationary Constable Herold. Probationary Constable Herold was concerned that this movement indicated that the plaintiff was preparing to jump over the balcony railing…

Constable Goulding heard the plaintiff say “fuck this” and saw him put one foot on the seat of the table on the side closest to Young Street. At this time Constable O’Brien said words to the effect, “Go in, get him, get him”.

Probationary Constable Herold had, in any event, decided to activate the taser because he was worried that the plaintiff was about to jump. He moved the safety switch from the “down” position (where it is in safe mode) to the “up” position (the armed position), pointed the red dot just above the plaintiff’s waistline at his back and squeezed the trigger to discharge the probes in an attempt to stop the plaintiff from leaping over the balcony by immobilising him… When he pulled the trigger, nothing happened. He knew immediately that the taser had not operated properly.

When Constable Goulding realised that the taser had not operated correctly, he charged at the plaintiff to try to stop him from going over the balcony railing by grabbing him but the plaintiff “dove” over the balcony railing. While the plaintiff was diving the taser actually went off “properly”. I accept the truth of what Constable Goulding said in a recorded interview the following day: “he’s just rolled over basically head first over the balcony” and “he’s just sort of leapt head first as if he’s diving into a swimming pool basically without his arms”. At that time, he was aware that the prongs of the taser flew straight past him. He considered that the prong of the taser actually hit the plaintiff as he was already going over the balcony railing. I accept his evidence:

“He was already falling when the taser actually fired.”

The entire event on the balcony took not more than 2 minutes ([79]). The plaintiff suffered severe injuries and is now confined to a wheelchair ([190]-[193]; [197]). In an action against NSW police the plaintiff alleged (at [2]) that

• The presence of the police on the balcony was an assault in that it put him in fear of physical contact;
• The use of the Taser was a battery; and
• In any event the police were negligent in their response in part by having so many police on the balcony inflamed the situation.

Adamson J rejected all those claims entering a verdict in favour of the defendant (ie in favour of the state of NSW). 

The alleged assault

The allegation of assault was not made out as there was no evidence that the plaintiff’s behaviour, including his action in jumping off the balcony was ‘a result of fear or apprehension of police or as a result of the taser’ ([142]).

The alleged battery

It was agreed that shooting someone with a Taser, even if it misfired and only one probe hit the victim, would constitute a battery unless the defendant (ie the police) had a lawful justification or excuse for their conduct. Adamson J said the use of force was lawful on several grounds.

First (at [146])he pointed to the Police Act 1990 (NSW) s 6, which provides that it is the function of NSW Police to protect ‘persons from injury or death … whether arising from criminal acts or in any other way’.  The Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) s 230 provided:

It is lawful for a police officer exercising a function under this Act or any other Act or law in relation to an individual or a thing, and anyone helping the police officer, to use such force as is reasonably necessary to exercise the function.

At [148] the judge considered the Mental Health Act 2002 (NSW) s 22 and the power of police to ‘apprehend’ a person who ‘appears to be mentally ill or mentally disturbed’. The Mental Health Act 2002 (NSW) s 81 provides that a police officer authorised to take a person to a mental health facility (as the police were by virtue of s 22) could ‘use reasonable force’.

Finally the Crimes Act 1900 (NSW) s 574B provides:

It shall be lawful for a person to use such force as may reasonably be necessary to prevent the suicide of another person or any act which the person believes on reasonable grounds would, if committed, result in that suicide.”

His Honour found each of those sections justified the use of the Taser and therefore the use of force was lawful.

Other statutory defences

There were several other defences also available to the police. First ([160]) the Civil Liability Act 2002 (NSW) s 48 provides that a plaintiff is not to receive compensation if they were intoxicated, unless the court is satisfied that the injury would have occurred even if they were not intoxicated.  In this case the plaintiff had consumed ‘several’ schooners of beer and an unidentified drug.  At [162]-[163] His Honour said:

… as soon as the plaintiff inhaled the drug, his thinking became disordered and he was unable to appreciate where he was or how he was interacting with others. It made those around him both scared for their own safety and very concerned for his welfare. He threatened to jump off the balcony before the police arrived and was in a position where that was a possibility.

I am satisfied that, but for the intoxication caused by his ingestion of the drug, he would not have experienced significant thought disorder, would not have gone out onto the balcony and threatened to jump (before police arrived) and would not have gone over the railing…

His injuries were due to his self-induced intoxication and that defeated any claim for damages.

The court found that police had made out a defence based on both the common-law of self defence and the provisions of the Civil Liability Act that provide there is no liability for acts done in self-defence ([164]-[168]). The actions of the police were a reasonable response to protect the plaintiff, bystanders and police from harm.

The Civil Liability Act also provides that people should not be compensated for injuries arising from their own criminal conduct (s 54). The self-administration or prohibited drugs was a criminal act and was the effective cause of Mr Hannam’s injuries.

The alleged negligence

The court found, and the plaintiff accepted (at [174]), that prior High Court Authority, (including Stuart v Kirkland-Veenstra (2009) 237 CLR 215 discussed in multiple posts in this blog) established that the police did not owe a duty of care to the plaintiff and so the action in negligence could not succeed.  The plaintiff’s lawyers did not ‘abandon’ their case reserving the option of an appeal to see if they can persuade the High Court to make a new ruling, but accepting that Anderson J could not find that there had been negligence.

His Honour therefore still had to consider the other elements of negligence so that if the High Court does make a new ruling on the issue of duty, a further trial is not required. On the issue of causation (ie assuming there had been negligence) Anderson J said (at [182]):

… the plaintiff fails on causation. He has not established, on the balance of probabilities, that anything the police would, or could, have done differently in the few minutes when they were present would have produced a different result.

Even if that were not true there were other defences in particular:

• The defendant was engaged in a dangerous recreational activity (ie taking drugs). He had observed that the others who provided the drugs had become aggressive and irrational, so he voluntarily accepted the risks to his behaviour (Civil Liability Act 2002 (NSW) s 5L);
• If required to proportion responsibility (s 5R; at [185]) ‘… the plaintiff (as compared with the police) [was] … wholly responsible for what occurred. He failed to take precautions for his own safety in a marked and extraordinary way. A 100% deduction [for contributory negligence] is appropriate’.

Mr Hannan’s case was dismissed with an order for costs.

The issue of costs

The case returned to court as Hannam v State of New South Wales (No 11) [2023] NSWSC 472 (5 May 2023) for orders as to costs.  The normal rule is that the loser of a case must pay the winner’s costs assessed on a ‘party-party’ basis. Without trying to explain what that means the effect is that the loser pays maybe ½ of the actual costs incurred by the winner.

A court can order costs on an indemnity basis which means the loser must pay 100% of the winner’s costs.  That order may be made where the defendant made an offer which the plaintiff rejected but which, if accepted, would have been a better outcome than the ultimate verdict.

In this case the defendant (ie the State of NSW) wanted an indemnity costs order and they wanted the plaintiff’s lawyers to be personally liable for the costs for running a case that was doomed from the start and no doubt because there is no chance the plaintiff will have the money to meet the costs order.

The court ordered that the plaintiff pay party-party costs up until 2 September 2021 and thereafter pay costs on an indemnity basis. The costs were assessed at $600,000.

The application for a costs order against the plaintiff’s lawyers was dismissed.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.