Andrew Stephen Benn v State of New South Wales [2015] NSWLC 16

Local Court New South Wales

Medium Neutral Citation: Andrew Stephen Benn v State of New South Wales [2015] NSWLC 16 Hearing dates: 5 December 2014, 10 February 2015 Decision date: 14 April 2015 Jurisdiction: Civil Before: Heilpern LCM Decision: Claim dismissed Catchwords: CIVIL PROCEEDINGS – assault – plaintiff detained by police under s 22 Mental Health Act 2007 – lawful justification for police action - whether use of Taser was reasonable and not excessive Legislation Cited: Law Enforcement (Powers and Responsibilities) Act 2002, s 230 Mental Health Act 2007, ss 22, 81 Police Act 1990, s 6 Cases Cited: McIntosh v Webster (1980) 43 FLR 112 R v Ali Alkan [2010] NSWLC 1 Woodley v Boyd [2001] NSWCA 35 Williams v State of New South Wales (District Court (NSW), Blanch CDCJ, 22 February 2014, unrep) Texts Cited: NSW Ombudsman, How are Taser weapons used by the NSW Police Force? (October 2012) Category: Principal judgment Parties: Andrew Stephen Benn (plaintiff) State of New South Wales (defendant) Representation: Counsel: Mr Cochrane for the plaintiff Mr Bateman for the defendant File Number(s): 2013/295720

Judgment

Reasons for Decision 1. At the intersection of Barker Street and Walker Street in the Northern Rivers town of Casino there is a roundabout with a flagpole, a cenotaph memorial, some street signs, paving and grass. It is one of the major intersections in the town. At about 1300 on 1 October 2010 Andrew Stephen Benn (Benn) was sitting on the roundabout when he came into contact with NSW police. After a period of time he was shot with a Taser in the back by Senior Constable Reddell (Reddell). 2. Benn sues the State of New South Wales for assault, also known as battery, a species of trespass to the person.