The recent use of a police taser on Ms Clare Nowland – a 95-year old woman in an aged care facility in Cooma – has left medical and legal professionals in a state of dismay and disbelief.
Senior NSW Police have attempted to justify this apparently excessive use-of-force by alleging that Ms Nowland, who suffered from dementia and was supported by a walking frame at the time of the incident, was approaching officers at the scene with a steak knife.
Ms Nowland fell immediately upon being struck with the taser. She fell and hit her head. She suffered a fractured skull and severe bleeding on the brain. Ms Nowland was receiving end-of-life care at a nearby hospital before she passed away on Wednesday, 24 May.
Despite the NSW Police refusing to release bodycam footage of the incident, which in itself raises issues of transparency and public service accountability, several additional legal questions concerning the incident have begun to emerge.
Could the use of a taser on a frail 43kg lady, by a 33-year old male Senior Constable with 12 years experience, amount to the intentional torts of assault, battery or wrongful death? What civil damages could be sought, on behalf of Ms Nowland, against the NSW Police?
The availability of self-defence for police officers, in response to a civil claim made against the State, was affirmed by the NSW Court of Appeal in State of NSW v McMaster [2015] NSWCA 228. But in that case, damages were still payable for battery. A claim for tortious immunity, for police officers in the course of their duties, was rejected by the Full Court of the NSWCA.
In this case, and aside from any wrongful death claim, the availability of tortious damages will largely rely on whether, under the circumstances, Ms Nowland was acting unlawfully. But even if she was, the police officer will still need to establish that his response to her conduct was a reasonable or necessary one under the circumstances.
From the few facts already at hand, it is difficult to imagine how self-defence might be available so to prevent the Nowland family from succeeding in a civil damages claim against the NSW Police.
