Gary James Linden v Grant Douglas Shirdon and Commonwealth of Australia [1996] ACTSC 104 (25 October 1996)

SUPREME COURT OF THE ACT

GARY JAMES LINDEN v. GRANT DOUGLAS SHIRDON AND COMMONWEALTH OF
AUSTRALIA
No. SC 644 of 1992
Number of pages - 5
Negligence

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HOGAN AJ

CATCHWORDS

Negligence - Police officer - apprehending person - applying handcuffs - duty to take reasonable care - applying handcuffs too tightly - complaint by apprehended person - failure to loosen handcuffs

HEARING

CANBERRA, 21 October 1996
25:10:1996

Counsel for plaintiff: Mr A. Bartley

Solicitor for plaintiff: Gary Robb and Associates

Counsel for defendants: Mr G. Stretton

Solicitor for defendants: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:
1. Judgment be entered for the defendants.

2. The plaintiff pay the defendant's costs.

DECISION

HOGAN AJ The plaintiff in this action seeks to recover damages for personal injury which he claims he received as the result of the negligence of the first defendant.

2. The first defendant was, in October 1986, a constable of the Australian Federal Police, and it is common ground that the second defendant, the Commonwealth of Australia, is liable for any damages that might be awarded against him.

3. Following a police chase and collision on Belconnen Way on 1 October 1986, Constable Shirdon apprehended the plaintiff and handcuffed him. It is also common ground that the circumstances were such that he was justified in doing so.

4. The plaintiff alleges that when the handcuffs were put on, they were too tight, especially on his left wrist. He claims that he said to the defendant, "Listen, these are too tight." They were not loosened. He was placed in a police vehicle and taken to Belconnen Police Station, where he was placed in a holding cell. During the journey, he alleges that he was in fear, and concerned about the pain in his wrist, and again asked for the handcuffs to be loosened. There was no response to his request.

5. He was in the cell for some time, of the order of three quarters of an hour. Over that time, he says that he suffered intense pain in his left wrist, and his left hand became discoloured. He was eventually taken to the room set aside for breath analysis, where the operator of the breath analysis machine said, " We had better get those off you", and removed the handcuffs. At that time , he says his hand was completely discoloured. The blood alcohol reading was between .170 and .180.

6. According to the times recorded in various documents , the plaintiff was apprehended in Belconnen Way at 5:54pm. He was introduced by Constable Shirdon to the approved operator of the breath analysis machine, Constable O'Reilly, at 6:35pm. He was formally charged with a series of offences between 9pm and 9:24pm.

7. On 3 October 1986, the plaintiff consulted his general practitioner, Dr Rowland. He complained that he had been handcuffed for over an hour, the handcuffs had been extremely tight, and when released he had a groove in his wrists. He stated to Dr Rowland that there had been a total loss of feeling in his left hand, which persisted. At the consultation, he complained of loss of feeling in the first, second and third fingers and part of his hands. On examination Dr Rowland found a sensory loss in the vicinity of the thumb on the dorsal side of the left hand. Dr Rowland recorded that the plaintiff told him that he had injured his left thumb 5 months before, and there had been a temporary loss of sensation in the thumb at that time.

8. Dr Rowland saw him on a number of occasions subsequently, when the plaintiff said that the loss of sensation was still present. The next two such occasions appear to have been on 2 February 1987 and 29 September 1987. On 18 July 1988, the plaintiff complained of numbness in the tips of the fingers and the inside aspects of the thumb. Another consultation relating to the wrist took place on 8 September 1988. There were a number of consultations over the next few years, which Dr Rowland reported as being related to an attack of depression.

9. On 14 April 1992, the plaintiff consulted him specifically about continued pain and tightness in the back of the hand and the dorsal surface of the wrist. The plaintiff is left handed. He complained that he could not write for more than 20 minutes without pain, and could not use a chainsaw safely at all. The condition of his hand had deteriorated over the previous 12 months.

10. Dr Rowland referred him to Dr Tuck, neurologist, sho saw him about 2 weeks later. The plaintiff complained to Dr Tuck of pain in his left wrist when he used his arm and hand. The tightness and pain was located in the region of the anatomical snuff box and over the distal end of the radius. He claimed that his symptoms began a week after the handcuffs had been applied, that his left hand had been black and there was numbness on the dorsum of the left hand. Dr Tuck found no neurological abnormality on that examination. He could not find any clinical evidence of a median, radial or ulnar nerve lesion. Nevertheless, he arranged a nerve conduction test, which he carried out on 12 May 1992. Sensory conduction was impaired in the left ulnar nerve at the wrist. There was no clinical evidence of an ulnar nerve lesion. His findings were consistent with an old, asymptomatic, distal ulnar nerve lesion at the wrist, which might well have been caused by a handcuff injury. He summarised his findings as providing evidence of mild peripheral nerve damage affecting the ulnar nerve in the left wrist. He did not think that the symptoms of which the plaintiff then complained had a neurological basis.

11. In his report of 17 June 1992, Dr Rowland commented that there was some evidence that the handcuffs had caused some degree of ulnar nerve damage, but it was difficult to relate the plaintiff's considerable disability to an injury sustained so long ago. He had an open mind as to the causation of the plaintiff's problems.

12. Dr Rowland is deceased and it was not possible to explore his views. He did not give any further treatment in respect to the wrist, as he did not think that the mild peripheral nerve damage would respond to any treatment. In July 1994, he reported that since the plaintiff's history had been consistent, the handcuffing had probably caused the disability. He did not advert in that report to the question whether the original complaint of a sensory loss in the vicinity of the thumb on the dorsal side was consistent with peripheral ulnar nerve damage, and did not advert to the previous thumb injury, which had been reported to him on 3 October 1986. The ulnar nerve, according to Schmidts Attorney's Dictionary of Medicine, is a motor and sensory nerve distributed to the skin of the little finger, the ring finger and part of the hand on the side of the little finger, and to various muscles.

13. The Australian Government Solicitor sought an opinion from Dr Hopkins, orthopaedic surgeon, who examined the plaintiff on 16 January 1995. The plaintiff told him that the handcuff was not loosened until some 60 minutes after it was first put on, and that he had significant pain around the wrist, and the back of the hand was throbbing, particularly over the dorsum of the index and middle fingers. His then current complaint was that after writing for any time, the hand ached over the back of the index finger and middle finger, and the fingers became tight and numb at the tips. The thumb also became tight and the area became painful and tender so that he had to stop writing. On examination, Dr Hopkins found that the hands showed signs of significant physical work. There was some very minor muscle wasting on the left thumb. There was no evidence of loss of motor power of muscles reliant on the ulnar nerve.

14. Accepting the history that he was given, that the handcuffs had been applied with excess force and left on for an inappropriately long period, Dr Hopkins nevertheless thought that the incident could have produced only a temporary interruption to some cutaneous nerves. The only sensory impairment was in an area supplied by terminal elements of the radial nerve. The plaintiff's claimed disability, in his opinion, could not have been caused by the 1986 incident. The result of the nerve conduction studies relating to the ulnar nerve could have been explained by a childhood accident to his left elbow. It had no functional significance at all.

15. Dr Hopkins was not cross examined. Neither was Dr Tuck.

16. In evidence in chief the plaintiff complained of numbness across the back and left side of his left hand. I think that the variety in the description of the locality of symptoms in the hand is significant.

17. Evidence was given by Constable Shirdon, who said that he had no recollection of any complaint about the handcuffs.

18. Sergeant Dunn also gave evidence. He had been on patrol with Constable Shirdon, but had not been involved in the arrest or conveyance of the plaintiff to the police station. He had no memory of any complaint about the handcuffs.

19. The approved operator of the breathalyser, Constable O'Reilly, had no recollection of any complaint to her by the plaintiff about the handcuffs. She was quite certain that she had never removed hand cuffs from any person undergoing breath analysis while she held that position. It was her duty to ask a series of questions set out on a form, "Statement of approved operator" and to record the answers. The form is in evidence, Exhibit 3. It records the following, "I said 'are you sick or injured?' He said, 'Not to my own knowledge except I suffer from a high sugar level."

20. Sergeant Smith charged the plaintiff in the Station Watch House, which is a different room from that occupied by the breath analysis machine operator. It was also part of his duty to observe and note any sign of injury on a person being charged. He had no recollection of seeing any injury on the plaintiff's wrist.

21. An arresting officer, when handcuffing a person being taken into custody, owes a duty to that person to take reasonable care that the handcuffs are not put on in such a way as to cause injury, and if they have been put on too tightly, to loosen them as soon as he becomes aware of that fact. Any other officer, who became aware that the handcuffs on a person in custody were too tight, would also be under a duty to avoid further harm by loosening them. I agree with the submission of counsel for the plaintiff that the plaintiff could well have a cause of action if the handcuffs were applied too tightly, whether or not I am satisfied that he complained about it.

22. But I think that in the circumstances of this case, it is likely that if they were applied so tightly as to cause real damage he would have complained, and there would have been some sign of injury that night. His complaint two days later to Dr Rowland is consistent with his having suffered some discomfort as a result of being handcuffed. But all Dr Rowland found on examination was a sensory loss in the vicinity of the thumb.

23. It is perhaps possible, at this length of time, that if he made some complaint, Constable Shirdon and Sergeant Dunn might not remember it, but I think it more likely that Constable Shirdon would at least recall it if it happened.

24. However, neither Constable O'Reilly nor Sergeant Smith have any memory of any complaint, nor of having seen the sign of injury described by the plaintiff, which would have been obvious. If any complaint had been made in the presence of either of these two officers, it is to be expected that a written record would have been made both of the complaint and of the signs of discolouration of the hand.

25. Counsel for the defendant made a number of criticisms of the plaintiff's recollection of the events of that evening. It is not necessary to list them again. Suffice it to say that I agree with them.

26. It is possible that the plaintiff's evidence is in accordance with his present recollection. But I am not persuaded that it is in accordance with the facts that actually happened. In fact I think that the probabilities lie in the opposite direction.

27. Even had it been otherwise, I accept Dr Hopkins' opinion about the extent of any possible injury that the plaintiff could have suffered that night. I am also not persuaded that the plaintiff suffered any loss of income at all as a result of the incident. Even if I had been satisfied that Constable Shirdon applied the handcuffs too tightly, and that they had been left on too long, the damages that would have been awarded would have been minimal, that is, of the order of $1000 including out of pocket expenses.

28. On the whole of the evidence however, I find that the plaintiff did not in fact receive the injury that he described. The handcuffs were not applied too tightly in the first place , he made no complaint about them while in custody, and his hand was not discoloured at the time he was introduced to Constable O'Reilly.

29. I direct the entry of judgment for the defendants.

30. I order the plaintiff to pay the defendants' costs.