Police Assault Victim Still Entitled To Receive Over $135,000

The Supreme Court has upheld an award of damages of over $135,000 to a man who successfully sued after he was the victim of assault, battery and unlawful imprisonment by SA Police.  The Court found that the action by police constituted a ‘grave and frightening abuse of their powers of entry, search and detention’ after the man, who hadn’t committed any offence, was threatened with violence if he didn’t come out of his house.

Police Arresting drugs dealer

The Trial

In an earlier trial in the District Court the Court heard how armed members of the police STAR Group went to the man’s home intending to arrest his brother.  They had received information that the brother was at the house and might have had access to a firearm and had indicated he was willing to ‘shoot it out’ with police.  When they arrived, the brother ran out the back door and was quickly arrested.  What followed formed the basis for the man’s claim.

The police called out, “Will the tenant of 36 come out with your hands on your head, or we’ll throw a percussion grenade, a stun grenade, we’ll throw that in and we’ll drag you f*cking out.”  In view of the threats the man was reluctant to go outside and replied, “You can come in,” but the police told him that he would be dragged out if he didn’t immediately come out walking backwards with his hands on his head.

The man complied but when he didn’t get down onto the ground when told to do so by the police, one of the officers ran up behind him and swept his legs out from underneath him, forcing him to the ground.  There was a struggle and the man was restrained and held at the location for 20 or 30 minutes while police searched the house.

The Court had found that the actions of police in directing the man to leave the house were unlawful and that the police had no lawful authority to search the man’s property or to remain on there.  The force used by the police to restrain the man was also not authorised and certainly not reasonable.

The man was awarded over $135,000 in damages.

Exemplary Damages

In cases against the police, as with other State Government institutions, the claim is actually made against the State of South Australia.  Although the man’s original claim was defended by the State, the appeal was not against the finding of liability against the police, but concerned one specific area of damages that was awarded.  A claim for personal injury will involve different ‘heads’ of damage, or different grounds on which compensation is claimed such as pain and suffering, loss of income and future medical expenses.  In this case the Court awarded an amount of $35,000 for what is called ‘exemplary damages’.  Exemplary damages can be given when the conduct involved is so bad that the usual compensation would not sufficiently express the Court’s disapproval of how the wrongdoer behaved.  As the Court in this case noted, “Exemplary damages may be awarded for any tort that is committed in circumstances involving a deliberate, intentional or reckless disregard of a plaintiff’s interests.”

The Judge who heard the trial found that the assault, battery and wrongful detention of the man was ‘high handed and showed a contemptuous disregard” for his rights, and ruled that there needed to be an amount awarded to ‘punish and deter’ and to bring home to the police officers involved along with their superiors that police need to be trained and disciplined so that such abuses doesn’t happen.

Appeal Dismissed

In dismissing the State’s appeal against this finding the Supreme Court noted the exemplary damages will be awarded when the defendant’s conduct (in this case the police) was of such a character that it merits punishment.  That is, conduct that is ‘wanton, fraudulent, malicious, violent, cruel, insolent, high-handed or an abuse of power’.  The Courts award exemplary damages to make it clear that it will not tolerate the outrageous use of power or unconstitutional action by servants of the government.  They also serve the purpose of deterring any repetition of the conduct in question.  In this case it was clear that exemplary damages were awarded because the assaults committed by the police occurred in the course of conduct that was, “a grave and frightening abuse of their powers of entry, search and detention,” and the man had done nothing at all to warrant the aggressive and high-handed approach of the police officers.

When the wrongful conduct of police that gives rise to a claim is due to ordinary human fallibility, a person who has suffered loss as a result will still be entitled to damages but not to an additional award of exemplary damages.  Nevertheless, as this and other cases show, there remains a need for the Court to make an example in instances where the behaviour of police amounts to a deliberate abuse of authority.

Anyone who has suffered loss as a result of police misconduct can obtain advice about the options available to them by contacting Websters Lawyers and arranging a free initial consultation, either by calling 8231 1363 or submitting a request through our contact page.

State of South Australia v Holder [2019] SASCFC 135





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