The actions of some Victorian police officers have recently been called into question following footage being released of a disabled pensioner and Sudanese-born Melbourne man being detained, pinned down, hit, kicked and hosed.  

While details of the circumstances surrounding both incidents are still under investigation, and there is no doubt that our Police officers in large part do a very good job of balancing conflict in potentially explosive circumstances, both incidents raise issues of what is reasonable force and whether the force used was reasonably necessary.

A similar issue was considered earlier this month by the Queensland District Court in the decision of Hunold v Twinn & The State of Queensland [2018] QDC 43.  Mr Hunold had been partying at various nightclubs in Surfers Paradise in 2009 and had been drinking from 3:00 pm the afternoon before.  At around 4:00 am Mr Hunold’s sister and cousin became embroiled in an argument with two other females on the footpath.  Mr Hunold advised he had stepped in to assist when police officer Twinn approached him, pinned him to the ground, struck and detained him.

As is often the case with these matters, neither Mr Hunold nor Mr Twinn could agree on the circumstances surrounding the incident.  The Court found Mr Hunold had been drinking rum for a 12 hour period before the incident occurred.  He had pushed the other female involved in the alteration away and put himself between her and his sister and attempted to hold his sister back.  His behaviour was described as disorderly and disruptive but not violent.  Mr Hunold was restrained by a male bystander before police officer Twinn, who was standing on the outskirts of the group, approached him.   Mr Twinn forced him to the ground and then struck him in the right hand flank and lower back.  Mr Hunold was subsequently diagnosed with a fracture to his lumbar spine and sought damages sustained as a result of his injury.

His eligibility for compensation turned on whether the force used by police officer Twinn to affect the arrest was reasonably necessary.  If so, Queensland Police and the State of Queensland would bear liability for Mr Twinn’s actions as they were undertaken within the course of his employment as a police officer.

The Court found that in this matter, some degree of force was reasonably necessary, but the strike to Mr Hunold’s lower back was excessive and unjustified as the police officer was in control of Mr Hunold who was on the ground in the foetal position and the threat of danger by him, at that stage, was minimal.  The Court went on to find that it was this strike to Mr Hunold’s lower back which caused him to sustain injury and that he was therefore, eligible for compensation.

At first glance, it sounds like a win for Mr Hunold.  But was it?

The medical evidence indicated his fracture had united and would generally not cause ongoing pain or disability for more than twelve months.  The Court decision was handed down 9 years after the incident occurred.  By that time, Mr Hunold had left his position as a storeman in the army and had not been in paid employment since 2012, other than a relatively short period of employment in 2013.    During this time, Mr Hunold had not sought to obtain further employment or explore retraining opportunities.  He sought to recover not just lost income, but also the lost opportunity for deployment to East Timor and Afghanistan where he would have earned extra, tax free allowances.

In the end the Court allowed economic loss only on the basis there was some small chance he could have been deployed for the one year after he was injured and before his fracture resolved.  In total he was awarded $27,500 in damages.

This case highlights that in winning the battle, you do not necessarily win the war. 

While we are not privy to the legal costs and outlays incurred by Mr Hunold, it would be surprising if he received significant compensation after funding the long and arduous litigation process and then trial.  On the other hand, being able to affect a settlement, even for a lesser amount, in the negotiation process prior to trial may have resulted in a better result for all parties.

This does not mean that litigation should be avoided.  However, it is appropriate to make sure only the right matters progress to trial and when they do, they are properly prepared on all fronts.

For advice on getting the right result in the right way, contact us at Hughes & Lewis Legal.

About the author
Belinda Hughes is a Director of Hughes and Lewis Legal

Contact
info@hughesandlewis.com.au