Enever v the King

Case [1906] HCA 3


3 CLR 969

RESPONDENT. DEFENDANT,

ON APPEAL FROM THE SUPREME COURT OF Liability of Crown- Wrongful arrest-Relation between peace officers and the Crown

- Employment or agency-Power of arrest-Police Act 1865 (29 Vict. No. 10), sec. 179-Police Act 1898 (62 Vict. No. 48)-Crown Redress Act 1891 (55 Vict. No. 24), sec. 4.

Under the Tasmanian Crown Redress Act, by which a right of action against the Government is given to any person having any just claim against the Crown for an actionable wrong in respect of " any act or omission, neglect or default of any officer agent or servant of the Government of Tasmania," it is not com- petent to bring an action against the Government for the wrongful arrest of the plaintiff by a constable in the intended performance of his duties as an officer of the peace.

A peace officer is himself responsible for unjustifiable acts done in the intended exercise of his lawful authority; but the responsibility for his acts does not extend to the person or body whereby he was appointed to his office, whether his acts were done in the exercise of the common law powers of an officer of the peace or of those powers as extended by Statute.

Stanbury v. Exeter Corporation (1905), 2 K.B., 838), approved. Nor is the peace officer an "agent or servant" of the person or body appointing him, for in the preservation of the peace his authority is original, not delegated, and is exercised at his own discretion by virtue of his office, and on no responsibility but his own. His powers under the law being definite, he is not held out by the authorities, who appointed him, as having any greater authority than was lawfully his.

3 CLR 970

970

HIGH COURT Tobin v. The Queen (16 C.B. N.S., 310; 33 L.J. C.P., 199), applied. At the time of the passing of the Crown Redress Act 1891, the appointment of officers of the peace was in some cases vested in the Government, and in others in municipal bodies. No responsibility attached to the latter for the acts of officers appointed by them the Crown Redress Act therefore, in allowing a right of action against the Government under circumstances in which an action previously lay between subject and subject, was not intended to create against the Government a responsibility for the acts of peace officers whom it had appointed, that not being a liability which had ever existed against any subject exercising similar powers. The Police Regulation Act 1898, which vested the appointment of all such officers in a Government Commissioner, did not alter this position.

The word "Government" in sec. 4 of the Crown Redress Act 1891 means the Crown in its capacity of the Executive Government only, and not in its legislative or judicial or other capacities.

APPEAL from a decision of the Supreme Court of Tasmania 1.

Appellant was wrongfully arrested in a public street in Hobart by a police constable…

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Enever v the King [1906] HCA 3
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[1906] HCA 3
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CaseChat Overview and Summary

The plaintiff, Enever, brought an action against the Crown for damages for wrongful arrest. The dispute concerned the liability of the Crown for the actions of a police officer. The case was heard by the High Court of Australia, comprising Griffith C.J., Barton and O'Connor JJ.

The central legal issue before the Court was whether a police officer, acting in the course of their duties, was an agent or servant of the Crown for the purposes of establishing Crown liability under the Crown Redress Act 1891. Specifically, the Court had to determine if the Crown could be held responsible for the tortious acts of a police officer, such as wrongful arrest, committed while exercising powers conferred by legislation like the Police Act 1865 and the Police Act 1898.

The Court reasoned that the relationship between the Crown and police officers was not one of employment or agency in the ordinary sense. While police officers were appointed and paid by the Crown, their powers and duties were primarily derived from statute, and they were expected to exercise an independent discretion in carrying out their functions. The Court held that the Crown was not liable for the wrongful acts of a police officer unless it could be shown that the Crown had directed or authorised the specific wrongful act, or that the officer was acting as the Crown's agent in a particular instance. The principle applied was that the Crown is not vicariously liable for the torts of its servants or agents unless the relationship is akin to that of employer and employee, which was not the case with police officers in their exercise of statutory powers.

The High Court allowed the appeal, finding that the Crown was not liable for the wrongful arrest by the police officer.

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