NEIL FOSTER

Associate Professor, Newcastle Law School

Faculty of Business and Law

409 Hunter St

Newcastle

T: +61 2 49217430

E: neil.foster@newcastle.edu.au

Further details: http://www.newcastle.edu.au/profile/neil-foster

My publications: http://works.bepress.com/neil_foster/ , http://ssrn.com/author=504828

Blog: https://lawandreligionaustralia.blog

The University of Newcastle (UoN)

University Drive

Callaghan NSW 2308

Australia

CRICOS Provider 00109J

From: "A.M.Tettenborn@swansea.ac.uk" <a.m.tettenborn@swansea.ac.uk>
Date: Wednesday, 3 June 2020 at 4:01 pm
To: Neil Foster <neil.foster@newcastle.edu.au>
Cc: "obligations@uwo.ca" <obligations@uwo.ca>
Subject: Re: ODG: HCA on battery and use of force with passing comments on bystanders

My first reaction is to be sceptical of Gageler J's interpretation. I would be surprised if, say, police were unable to use force to keep order merely because there were bystanders at risk. And applying this reasoning to the defence of self-defence would be grotesque: I would lose the right to defend myself against violence by A if there were bystanders B C and D nearby who would be injured.

I also doubt if this is a case of using bystanders instrumentally. If the officer had incapacitated the other bystanders because they obstructed his way to the youth they were subduing it might be. But I'd see this injury as incidental rather than instrumental. Compare the rules of necessity on property damage. I can't destroy your property to prevent damage to mine. But I can take steps to divert a flood from inundatng my land even though the effect is to cause it to inundate yours.

Andrew

Sent from BlueMail

On 3 Jun 2020, at 03:05, Neil Foster <neil.foster@newcastle.edu.au> wrote:

Dear Colleagues;

Very interesting tort decision today from the High Court of Australia in Binsaris v Northern Territory; Webster v Northern Territory; O'Shea v Northern Territory; Austral v Northern Territory [2020] HCA 22 (3 June 2020) http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2020/22.html . The question is whether the tort of battery was committed when prison officers used tear gas in controlling a disruptive detainee in a youth detention centre; the allegations of battery in this respect were brought, not by the disruptive detainee themselves but by 4 other detainees who were located nearby and were affected by the gas.

This was 5-member bench (Kiefel CJ and Keane J in one judgment; Gordon and Edelman JJ in another; Gageler J wrote separately.) A clear majority (the two “dual” judgments, if I can use that term) found that the use of the CS gas was not justified against either the main offender (and hence obviously not against the “bystanders”) by the relevant legislation governing use of such. While this as a “prohibited weapon” under NT law was allowed to be used in “prisons” (for adults), it was not authorised for use in “youth detention centres”. Hence the use of gas was a battery (confirming the common sense view that causing a substance to be propelled into someone’s body can be just as much an interference with physical integrity as actually hitting them with your hand.) There are some general comments from Gordon and Edelman JJ that a power to do what is “necessary” to enforce discipline is not sufficient statutory authorisation on its own for the commission of a battery:

[100] conferral of powers necessary or convenient to enable the superintendent to perform their statutory functions does not give the superintendent general authority to commit what would otherwise be crimes or torts against detainees.

However, Gageler J differed from the other members of the court on the interpretation of the legislation. He took the view that the Acts in question did authorise use of CS gas against the main offender. But this meant that he had to consider the very interesting question as to whether a defence in relation to one person, authorised harm incidentally caused to bystanders. See [38]:

Mr Walker SC, who appears with Ms Foley and Mr McComish for the other detainees, submits that the common law power of a police officer to use such force as is reasonably necessary to restrain or prevent a breach of the peace confers no common law immunity from liability in battery to a bystander who is injured through the application of that force. He submits that police have no privilege to make "instrumental use" of a bystander so as to cause "collateral damage" to the bystander with impunity. Despite a surprising dearth of modern authority on the topic, I believe the submission to be correct (emphasis added)

There is a very interesting review of the law on this area. For example, his Honour notes that some of the older cases may have been decided on the basis that police officers were personally liable for wrongs and that the Crown could not be sued for the torts of “constables”. He notes that due to a series of statutory amendments around Australia, this is no longer the case- that the Crown will usually be held vicariously liable. And he concludes at [44]:

legislative development, and the underlying legislative acceptance of public responsibility for torts committed by police officers, are appropriate to be factored into the contemporary expression of the common law of Australia.

In coming to the conclusion that the law should put responsibility for “incidental” harm to bystanders on the Crown, his Honour refers to what he says are analogous principles in property cases and cites Virgo, "Justifying Necessity as a Defence in Tort Law", in Dyson, Goudkamp and Wilmot-Smith (eds), Defences in Tort (2015) 135, esp at 146-147 (at n 42).

The conclusion at [49] even involves some comment on equity!

Doctrinally, my preferred analysis is to focus on the scope of the common law "privilege" or "immunity" attendant on the common law "power", or "right" and "duty", of a police officer to use force reasonably necessary to restrain or prevent a breach of the peace. The attendant common law immunity is unquestionably such as to provide a defence to a claim in battery by the wrongdoer who is the target of the force. The attendant common law immunity, in my opinion, is not such as to provide a defence to a claim in battery by a bystander who suffers collateral harm by reason of the necessitous use of force. The bystander is entitled to damages at common law to compensate for the harm for the simple reason that the use of force has interfered with the bystander's bodily integrity. The interference is tortious in the absence of a defence. The tortious liability and concomitant entitlement to an award of compensatory damages by a court administering the common law is unaffected by the circumstance that a court administering equity would decline to restrain the tortious but necessitous use of force by pre-emptive injunction.

Hence he agrees with the orders proposed by the majority, because the statutory defences did not authorise the incidental harm caused to the “bystanders”.

His Honour’s judgement of course is not part of the ratio of this case, and indeed there is a passing comment by Gordon and Edelman JJ at [54] that the appeals can be resolved by statutory interpretation and “do not turn on engaging or applying any wider principle”. But they provide a very fruitful basis for further discussion of this interesting question.

It is also worthy of note that a decision of this sort has been handed down on the day after a high profile incident in the USA where it seems that tear gas may have been used on a crowd outside the White House when it was not really needed to deal with actual or threatened violence. But of course US law is another matter altogether!

Regards

Neil

NEIL FOSTER

Associate Professor, Newcastle Law School

Faculty of Business and Law

409 Hunter St

Newcastle

T: +61 2 49217430

E: neil.foster@newcastle.edu.au

Further details: http://www.newcastle.edu.au/profile/neil-foster

My publications: http://works.bepress.com/neil_foster/ , http://ssrn.com/author=504828

Blog: https://lawandreligionaustralia.blog

The University of Newcastle (UoN)

University Drive

Callaghan NSW 2308

Australia

CRICOS Provider 00109J