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Written by Peter Carter

May 30, 2012

An aggressive 24 yr old British tourist injured during an arrest in the Roma St backpacker precinct has recorded a compensation win against the employer of an over zealous security guard but was penalised in damages for his  “poor work ethic” and “footloose” lifestyle.
Joseph O’Connell was barred by hostel security officer “Mr Simi” from re-entering the Beetle Bar at Cloud 9 Backpackers, after a five hour drinking binge from which he had taken a cigarette break out on to the sidewalk. On their second visit to the scene, police decided to arrest the backpacker for failing to observe their direction, given about two hours earlier, to move on.

The two attending officers restrained the animated offender, moved him towards their vehicle and bent the upper part of his torso down on to its bonnet to retain control while applying handcuffs. He continued to resist for about a minute or so during which the willing bouncer decided to intervene with his own remedy to restore the peace but his “not invited nor welcomed” assistance caused the officers to lose control of their man.

The guard then grabbed the offender and performed a “take down” manoeuvre that put him on the ground with the guard landing on top and breaking the offender’s femur. The evidence was that the two police officers had been in complete control despite the plaintiff’s struggles and that “until the bouncer intervened it was a routine arrest”.

The injured and obstinate backpacker sued the security guard’s employer, 1st Class Security, for arrest-related injuries. The court held that not only had the security guard failed to exercise reasonable care, his interference – regardless that he may not have intended any injury – constituted “battery”.

Notwithstanding, the defendant company argued it was immune from damages liability by courtesy of section 45 of the Civil Liability Act which prevents damage recovery by a person “engaged in conduct that is an indictable offence” if the person’s conduct materially contributes to the risk of harm.

Agreeing that the act of resisting arrest was indeed an indictable offence, the court declined to find that his struggles in any way contributed to “harm” suffered from Simi’s “take down”. Further, section 45 has no application to civil liability arising from the intentional species of torts such as assault and battery, because the elements of such torts do not include “breach of duty”.

The final obstacle which the backpacker had to overcome, was to establish that 1st Class was vicariously liable for the guard’s use of unreasonable force.

Because the bouncer had been authorised by the company to use force when dealing with disorderly persons, his intervention was considered to be “rightly regarded as a way of doing his authorised acts” and was alternatively, “in the ostensible pursuit of the defendant’s business”. Thus the company was liable for the injury caused by its bouncer employee.

The court heard of a record of binge drinking in England before arrival in Australia on a working holiday visa in 2008. Arrested there three times on that score, his history included episodes of amnesia “for up to the whole weekend” as a result of his drinking pursuits.

He claimed his bricklaying role – for which he had done a short course of training and had some on-the-job experience – was now too strenuous and he could not bear the weight of up to 23 kg he was required to haul up ladders in frozen north England winter conditions.

The “grotesque” fracture of the midshaft of his right femur was pinned with fixation screws at the RBH but Dr Montgomery assessed him as having no likely future impairment in the course of his trade. He would, according to Montgomery, have been able to obtain sedentary work within three months of the 2010 accident.

Even a global award for economic loss – claimed at $60,000 – was refused on these grounds, and his unimpressive and patchy prior work history.

A modest result, of barely $44,000 in total.

O’Connell v 1st Class Security P/L [2012] QDC 100 Brisbane Andrews SC DCJ 18/05/2012

Categories: Personal Injury , Litigation & Law Practice

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