Johnston v State of New South Wales

[2020] NSWSC 174

Supreme Court

New South Wales

Medium Neutral Citation:

Johnston v State of New South Wales [2020] NSWSC 174

Hearing dates:

25 February 2020

Decision date:

06 March 2020

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

(1) The initial determination of the Honourable Associate Justice Harrison on 11 September 2019 that the first defendant is not vicariously liable for the torts allegedly committed by the second defendant, pursuant to ss 9C(a) and (b) of the Law Reform (Vicarious Liability) Act 1983 (NSW), be set aside.

 

(2)   The determination of whether the first defendant is vicariously liable for the tort allegedly committed by the second defendant be reserved for the final hearing.

 (3)   The plaintiff to pay the first and second defendants’ costs of this motion.

Catchwords:

PRACTICE AND PROCEDURE – Law Reform (Vicarious Liability) Act 1983 (NSW) – initial determination – vicarious liability of the Crown – whether initial determination impracticable in the circumstances

  TORTS – intentional torts – assault – battery – vicarious liability of the Crown – police officer – whether alleged tortious acts were committed in the course of service to the Crown

Legislation Cited:

Law Reform (Vicarious Liability) Act 1983 (NSW), ss 5, 6, 8, 9B, 9C, 9D, 9E
Uniform Civil Procedure Rules 2005 (NSW), r 49.4
Supreme Court Act 1970 (NSW), s 75A

Cases Cited:

Do Carmo v Ford Excavations Pty Ltd [1981] 1 NSWLR 409
Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; [2016] HCA 37
Prior v State of New South Wales [1998] NSWCA 289

Category:

Principal judgment

Parties:

Lina Johnston (Plaintiff)
State of New South Wales (First Defendant)
Mark Christopher Gorman (Second Defendant)

Representation:

Counsel:
D O’Dowd (Plaintiff)
J Giles SC; D Stanton (First Defendant)
S Lavery (Solicitor) (Second Defendant)

  Solicitors:
Specialist PTSD & Injury Lawyers (Plaintiff)
TurksLegal (First Defendant)
Laxon Lex Lawyers (Second Defendant)

File Number(s):

2018/283027

 Decision under appeal 

Court or tribunal:

Supreme Court

Citation:

Johnston v State of New South Wales [2019] NSWSC 1206

Date of Decision:

11 September 2019

Before:

Harrison AsJ

File Number(s):

2018/283027

Judgment

1. HIS HONOUR: On 9 October 2019, the plaintiff filed a notice of motion seeking to appeal a judgment of Harrison AsJ, which involves a question of the vicarious liability of the Crown (“the first defendant”) for a tort allegedly committed by a police officer (“the second defendant”) against the plaintiff. The relevant background to the matter is as follows.

2. On 14 September 2018, the plaintiff filed a statement of claim in the Supreme Court of New South Wales, alleging that on 6 April 2010, whilst she was on duty at Parramatta Children’s Court as a police officer of the New South Wales Police Force training as a police prosecutor, the second defendant, who was a Senior Constable and police prosecutor also on duty, assaulted her. The plaintiff alleged that, while she was standing in an office and facing a table, the second defendant approached her from behind and deliberately pushed his body against hers, with sufficient force to require her to brace herself against the table to avoid falling, and pushed his erect penis against her buttocks.

3. The second defendant denied the allegation. In an interview with police on 20 September 2010, he stated:

“... I was running the matter of [name and nature of case] … and I had position (sic) myself in the Court Process room, sitting at the desk next to the printer ... I do recall prior to going into Court, and Court starts at 10am, walking from the Court Process room to my desk ... the incident where you have alleged to have occurred (marked floor plan with an X in black pen), and my desk is, from that point, walking past that point directly in a straight line. I can’t remember the reason why I was going to my desk, I don’t wish to reconstruct my evidence, however, I think it may have been to get a law book of some kind related to the hearing I was running. I do remember at the point that it’s been alleged coming into contact with [the plaintiff] ...”

4. The plaintiff pleaded that the second defendant was liable in tort, being assault and battery, for damages. The plaintiff also pleaded that the second defendant was in the service of the first defendant pursuant to s 6 of the Law Reform (Vicarious Liability) Act 1983 (NSW) (“the Act”), and that pursuant to s 8 of the Act, the first defendant was vicariously liable for the tort committed by the second defendant. The plaintiff sought damages from the first defendant for her past and future economic loss.

Relevant provisions of the Law Reform (Vicarious Liability) Act 1983 (NSW)

5. The long title of the Act is: “An Act with respect to the vicarious liability of masters and of the Crown in respect of the commission of certain torts”. The relevant sections of the Act are as follows:

“5   Definitions

(1)   In this Act, except in so far as the context or subject-matter otherwise indicates or requires:

…

independent function, in relation to a servant or a person in the service of the Crown, means a function conferred or imposed upon the servant or person, whether or not as the holder of an office, by the common law or statute independently of the will of the servant’s master or the Crown, as the case may require.

…

6   Police officer

For the purposes of this Act, a police officer shall be deemed to be a person in the service of the Crown and not a servant of the Crown.

…

8   Further vicarious liability of the Crown

(1)   Notwithstanding any law to the contrary, the Crown is vicariously liable in respect of the tort committed by a person in the service of the Crown in the performance or purported performance by the person of a function (including an independent function) where the performance or purported performance of the function:

(a)   is in the course of the person’s service with the Crown or is an incident of the person’s service (whether or not it was a term of the person’s appointment to the service of the Crown that the person perform the function), or

(b)   is directed to or is incidental to the carrying on of any business, enterprise, undertaking or activity of the Crown.

(2)   Subsection (1) does not apply to or in respect of a tort committed by a person in the conduct of any business, enterprise, undertaking or activity which is:

(a)   carried on by the person on the person’s own account, or

(b)   carried on by any partnership, of which the person is a member, on account of the partnership.

…

9B   How can police tort claims be made?

(1)   A police tort claim is a claim for damages for a tort allegedly committed by a police officer (the police officer concerned) in the performance or purported performance of the officer’s functions (including an independent function) as a police officer, whether or not committed jointly or severally with any other person.

(2)   Except as provided by this Part, a person may not in any legal proceedings make a police tort claim against the police officer concerned, but may instead make the claim against the Crown.

(3)   A person who makes a police tort claim against the Crown in any legal proceedings may join the police officer concerned as a party to the proceedings only if the Crown denies that it would be vicariously liable for the alleged tort if it were established that the police officer concerned had committed the tort.

…

9C   Court required to make initial determination as to vicarious liability in any legal proceedings where in issue

If the vicarious liability of the Crown is in issue in any legal proceedings in which a claim is made for damages for a tort allegedly committed by a police officer (whether or not it is a police tort claim) and the Crown and the police officer are both parties to the proceedings:

(a)   subject to paragraph (b)—the court must make an initial determination as to whether or not the Crown would be vicariously liable for the tort if it were established that the tort was committed by the police officer, and

(b)   that determination is to be made as soon as is reasonably practicable during the proceedings unless the court considers it impracticable in the circumstances to make such a determination before it determines whether or not the tort was committed.

9D   When court to strike out or dismiss claims against police officer or Crown

(1) Subject to section 9E, a court must make such orders as it considers appropriate to ensure that a claim before it for damages against a police officer for a tort allegedly committed by the officer is struck out or dismissed if:

(a) the court makes an initial determination under section 9C that the Crown would be vicariously liable for the tort if it were established that the tort was committed by the police officer, or

(b)   the Crown concedes that it would be vicariously liable for the tort if it were established that the tort was committed by the police officer.

(2) A court must make such orders as it considers appropriate to ensure that a claim before it for damages against the Crown for a tort allegedly committed by a police officer is struck out or dismissed if it makes an initial determination under section 9C that the Crown would not be vicariously liable for the tort if it were established that the tort was committed by the police officer.

9E   Part does not affect certain claims and legal proceedings

Nothing in this Part:

(a)   makes the Crown vicariously liable for a tort committed by a police officer if it would not otherwise be vicariously liable for that tort, or

(b)   prevents the Crown from bringing legal proceedings against, or claiming damages or a contribution or indemnity in any legal proceedings from, a police officer for a tort committed by the officer, or

(c)   prevents the Crown from joining a police officer to proceedings claiming damages for a tort committed by the police officer, or

(d)   prevents a person from bringing legal proceedings, or claiming damages in any legal proceedings, against another person who is not a police officer but who is jointly or severally liable for a tort committed by a police officer, or

(e)   prevents a person from making a police tort claim against a police officer in any legal proceedings brought against the person by the police officer, or

(f) prevents a person from bringing legal proceedings, or claiming damages in any legal proceedings, against a police officer for a tort committed by the police officer otherwise than in the circumstances referred to in section 8 (1).”

The notice of motion

6. On 13 February 2019, the plaintiff filed a notice of motion seeking orders that:

“1. The Court make an initial determination pursuant to Section 9C of [the Act], that the First Defendant would be vicariously liable for the torts allegedly committed by the Second Defendant against the Plaintiff on or about 6 April 2010, if it were established that the torts were committed by the Second Defendant.”

7. Further orders were sought to the effect that, if the court granted the first order, leave be granted to the plaintiff to discontinue proceedings against the second defendant and that those proceedings be dismissed with an order that the first defendant pay the costs on the motion of the plaintiff and second defendant, or that a Bullock or Sanderson order be made for those costs.

8. On 20 May 2019, the first defendant filed an amended defence, in which it was admitted the plaintiff was on duty on 6 April 2010 and that she had submitted a complaint that she had been indecently assaulted on that date, but otherwise denied the allegation.

9. The plaintiff’s motion was heard by Harrison AsJ on 10 May 2019. Her Honour handed down judgment on 11 September 2019, determining that, pursuant to s 9C of the Act, the Crown would not be vicariously liable, if it were established that the tortious acts were committed by the second defendant: Johnston v State of New South Wales [2019] NSWSC 1206.

10. On 9 October 2019, the plaintiff filed a notice of motion seeking the following orders:

“1. Pursuant to r 49.4 of the Uniform Civil Procedure Rules 2005 (NSW), the Court review and set aside the initial determination of the Honourable Associate Justice Harrison on 11 September 2019 that the First Defendant is not vicariously liable for the torts allegedly committed by the Second Defendant, pursuant to section 9C(a) and (b) of [the Act].

2.   The First Defendant pay the Plaintiff’s costs of this motion.”

11. The motion was heard by me on 25 February 2020. At the outset, the plaintiff sought leave to file an amended notice of motion in court. That application was not opposed by the first defendant, and I granted that leave. The amended notice of motion sought three additional orders, styled 2A, 2B and 2C. However, further into the hearing, the plaintiff abandoned orders 2B and 2C and effectively sought to amend order 2, which concerned costs, and ask for an order that costs be reserved. Accordingly, the only other order that was sought by the plaintiff was as follows:

“2A. In the alternative, an order that any determination pursuant to section 9C(a) of [the Act] is impracticable in the circumstances prior to a determination as to whether or not the torts were committed by the Second Defendant.”

The relevant principles

12. The parties agreed that the relevant principles were stated in two cases, being Prior v State of New South Wales [1998] NSWCA 289 and Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; [2016] HCA 37, the latter being the most relevant case.

13. Prince Alfred College v ADC concerned the question of whether proceedings could be brought against a school by a former boarder pupil who had been sexually assaulted by a boarding housemaster. The assaults had occurred in 1962, when the plaintiff was 12 years old. One of the questions for the Court was whether the school could be vicariously liable for the sexual assaults.

14. The plurality (French CJ, Kiefel, Bell, Keane and Nettle JJ) stated the relevant principles applicable to the determination of whether an employer is vicariously liable for the tortious acts of its employee, as follows:

“80   In cases of the kind here in question, the fact that a wrongful act is a criminal offence does not preclude the possibility of vicarious liability. As Lloyd v Grace, Smith & Co shows, it is possible for a criminal offence to be an act for which the apparent performance of employment provides the occasion. Conversely, the fact that employment affords an opportunity for the commission of a wrongful act is not of itself a sufficient reason to attract vicarious liability. As Deatons Pty Ltd v Flew demonstrates, depending on the circumstances, a wrongful act for which employment provides an opportunity may yet be entirely unconnected with the employment. Even so, as Gleeson CJ identified in New South Wales v Lepore … and the Canadian cases show, the role given to the employee and the nature of the employee’s responsibilities may justify the conclusion that the employment not only provided an opportunity but also was the occasion for the commission of the wrongful act. By way of example, it may be sufficient to hold an employer vicariously liable for a criminal act committed by an employee where, in the commission of that act, the employee used or took advantage of the position in which the employment placed the employee vis-à-vis the victim.

81   Consequently, in cases of this kind, the relevant approach is to consider any special role that the employer has assigned to the employee and the position in which the employee is thereby placed vis-à-vis the victim. In determining whether the apparent performance of such a role may be said to give the ‘occasion’ for the wrongful act, particular features may be taken into account. They include authority, power, trust, control and the ability to achieve intimacy with the victim. The latter feature may be especially important. Where, in such circumstances, the employee takes advantage of his or her position with respect to the victim, that may suffice to determine that the wrongful act should be regarded as committed in the course or scope of employment and as such render the employer vicariously liable.”

15. The factual analysis by the Court of Appeal in Prior v State of New South Wales was of importance in Harrison AsJ’s judgment, making it appropriate to relate the facts and judgments in some detail.

16. In Prior, the Court of Appeal heard an appeal from a decision of the trial judge to withdraw from the jury a claim for damages for assault and false imprisonment. The appellant had been the passenger in a car that was stopped by police. A police officer breath-tested the driver, with the result being negative. The appellant’s evidence was that the officer then asked the driver to open the boot of the car. The appellant, who was in the passenger seat, said to the officer, “You’re a big man aren’t you?” The officer came around to the appellant’s door, opened it, leaned in and said: “Yes, I’m a bigger man than you”, then delivered heavy punches to the appellant’s face with a closed fist. Following the punches, the police officer undid the appellant’s seat belt, dragged him out of the car and threw him in the gutter. The officer then straddled the appellant and continued to punch him to the face, rendering him semi-conscious. When the appellant regained consciousness, he found himself handcuffed. He then had his handcuffs removed, and he was taken to hospital for treatment by other police who had arrived at the scene.

17. Evidence was also given by the driver, whose account varied in some respects. He said that the appellant made the comment to the officer following the officer shining a torch in the appellant’s eyes and refusing to remove it. He said that the officer tried to pull the appellant out of the car but was prevented by the appellant’s seat belt being attached, so he punched him once in the face and then reached in and unhooked the seat belt. A second officer assisted the removal of the appellant from the vehicle. As soon as he was out, the police officers pushed him to the ground, where the first officer punched him multiple times. The driver called out “that’s enough”, but the first officer continued to punch the appellant. A statement made the same day by the driver was tendered by the respondent, which varied in some respects with the driver’s evidence but, consistent with his evidence, included the account that the officer struck the appellant to the face once while he was in the car, when he could not disengage the seat belt.

18. The Crown did not call any evidence, and Sheller JA noted, at 4, that the appellant was not cross-examined to suggest that his recollection of events was in any way incorrect.

19. Meagher JA, at 3, noted that the Crown submitted that:

“… the assault and false imprisonment were obviously so foreign to the policeman’s duty that they could not possibly be viewed as in the course of his duty or incidental to it.”

20. The trial judge referred to s 8(1) of the Act and concluded that it was open to the jury to conclude that that the torts were committed in purported performance of a function, that being the function of the arrest of the appellant. Sheller JA, at 6, noted that the trial judge had said:

“Moreover, I do not think one can artificially divide the assault, which took place immediately prior to the putting on of the handcuffs, from the act of arrest. On any version of it, it was one continuous series of acts from the time the first blow was struck to the time that Mr Prior was led, handcuffed, towards the back of the police vehicle.”

21. However, the trial judge entered a verdict by direction for the respondent, having concluded that there was no evidence upon which the jury, properly instructed, could reasonably find that the officer was acting within the course of his service of the Crown. The trial judge held that:

“… the only possible inference which is available is that [the police officer] took a gross dislike to Mr Prior’s words and immediately commenced to extract retributive justice. I do not think there is any other conclusion which is open to the jury on the evidence which has been put before them, and that only highlights, to my mind, the proper position in this case, which is, as I have said, that I consider that the acts of [the police officer] so clearly departed from the scope of his service with the Crown that the Crown is not liable for his wrongful acts, and I consider there is no evidence upon which the jury properly instructed could reasonably find that he was acting within the course of his service with the Crown.”

22. Sheller JA, Handley JA agreeing, upheld the appeal, finding that if the jury accepted the driver’s account, it was open to the jury to conclude that the appellant was assaulted for the purpose of being arrested. His Honour, at 7-8, said:

“But what if the jury accepted [the driver’s] account of what happened? According to [the driver], after the appellant said to the police officer ‘You’re a real big man aren’t you?’ and the police officer said ‘Bigger than you’, the police officer opened the door of the car and tried to pull the appellant out of the car, that is to say, tried to arrest him, but was prevented by the seat belt. When he found he could not get him out of the vehicle he punched him in the face once, then unhooked the seat belt and dragged him out of the car. It was open to the jury to conclude that the police constable was acting out of spite or retributive justice. But it was also open to the jury to conclude that he was arresting the appellant because the appellant had used words to him in his capacity as a police officer, which [the police officer] considered to be offensive or insulting. This would be a case of an improper act, due to error or ill judgment, but done in the supposed furtherance of the interests of the Crown. Moreover, the act was one to which the ostensible performance of the Crown’s work gave occasion and which was committed under cover of the authority the police officer was held out as possessing or had as a result of the position in which he was placed as a representative of the Crown. This points up that it was very much a matter for the jury in this case, when properly instructed, to make a finding whether or not [the police officer] was, from the moment he first touched the appellant, attempting to arrest the appellant in the course of his service with the Crown.”

23. Earlier in his judgment, Sheller JA, at 7, drew an example of an assault and arrest by a police officer that would not be committed in the service of the Crown, as follows:

“Thus a distinction can be drawn between the act of arresting someone as an incident of a police officer’s function but doing so in an improper manner and assaulting someone out of personal spite.

In the present case, if the only evidence before the jury was the account the appellant himself gave, which involved the verbal interchange followed by the assault of punching the appellant in the face with a closed fist, I would accept that it was not open to a jury to conclude that the purported performance of the function of arrest was in the course of or an incident of [the police officer’s] service with the Crown. A police officer walking down the street who comes upon a person against whom he has a grudge and who for that reason assaults and arrests that person is not doing so as an incident of his service with the Crown.”

24. Meagher JA noted, at 2-3, that the trial judge had correctly identified three factual elements that are to be established pursuant to the Act, in order for the Crown to be held vicariously liable of the tortious acts of a police officer. Firstly, that the person in the service of the Crown committed a tort; secondly, that the person was actually or purportedly performing a ‘function’; and, thirdly, that the ‘function’ was in the course of, or incidental to, the person’s service with the Crown. The trial judge had found there was sufficient evidence of the first and second elements to go to the jury (the second being that, at the relevant time, the officer was making the arrest). In relation to the trial judge’s conclusion as to the third factual element, Meagher JA said, at 3:

“In my view, it would have been open to the jury to conclude that the behaviour of [the police officer] was undertaken in the course of his service with the Crown, and that it would have been hard to resist that conclusion once one had decided that he was fulfilling an official ‘function’.”

The judgment of Harrison AsJ

Her Honour’s reasoning

25. Her Honour noted that the plaintiff submitted that under the circumstances of the case, it was not only practicable to make an initial determination, but “essential” for the Court to do so.

26. The first defendant submitted to her Honour that, pursuant to s 9C(b) of the Act, it was “impracticable in the circumstances” to make a determination as to whether the Crown was vicariously liable before determining whether the tort had been committed but, if the Court determined otherwise, it was clear on the relevant authorities that the Crown was not vicariously liable.

27. As her Honour noted, at [25] of her judgment, the first defendant accepted that the effect of the opening words of s 8 of the Act was to reverse the common law rule that the State could not be liable for a person in its service. Her Honour accepted, at [30], that the common law as to vicarious liability was not reduced by the terms of the Act and therefore continued to apply.

28. Her Honour noted that, pursuant to s 6 of the Act, the second defendant was “a person in the service of the Crown”. Her Honour accepted, at [66], that the reference in s 8 to “the performance or purported performance by the person of a function”, is to the function of a police officer, so that the question became whether, assuming the tort was proved, it was committed in the performance or purported performance by the second defendant of a function that comes within s 8(1)(a) of the Act. Her Honour, at [67], put it in these terms:

“Hence, in accordance with s 8(1)(a) of [the Act], the Crown will only be vicariously liable in circumstances identified in common law, namely when a person is acting within their authority or alternatively is performing an authorised act in an unauthorised manner.”

29. Her Honour found, at [68], that on the day of the alleged assault, the second defendant was performing his role as a police prosecutor, and was therefore acting in the performance, or purported performance, of his functions as a police officer.

30. However, her Honour concluded, at [80], that the third element for vicarious liability was not made out:

“While the State of New South Wales provided the opportunity for the alleged tort, it is difficult to see how the State of New South Wales provided the occasion for the wrong. The sexual assault alleged was an act unconnected with the police officer’s duties as a prosecutor. Also it cannot be said that the sexual assault of a junior employee was a mode of performing a function he was required to do.”

The parties’ submissions

31. In written and oral submissions, the first defendant contended that there was a preliminary issue concerning the nature of the review that was sought by the plaintiff of Harrison AsJ’s judgment.

32. The first defendant submitted that, although the first order sought a “review”, r 49.4 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) provides for an “appeal” which, pursuant to s 75A(5) of the Supreme Court Act 1970 (NSW), is by way of a re-hearing. Accordingly, the plaintiff must demonstrate error in her Honour’s judgment. If no fresh evidence is called, the appeal is limited in accordance with the following observations of Cross J in Do Carmo v Ford Excavations Pty Ltd [1981] 1 NSWLR 409 at 420:

“In my view a similar approach should—indeed must—be adopted where the master’s decision is brought on appeal to a single judge. It follows that on such an appeal, if no fresh evidence is called to warrant a departure from a master’s primary findings of fact, those findings of fact are binding on the court hearing the appeal unless those findings, or the inferences drawn from them, are so flawed as to attract the approach taken in Warren v Coombes (1979) 53 ALJR 293.”

33. In written submissions in reply, the plaintiff accepted the first defendant’s characterisation, that is, that it is appealing the decision at first instance.

34. The plaintiff sought orders to the effect that her Honour’s decision be set aside and that an initial determination as to the vicarious liability of the first defendant not be made, as it is impracticable. The plaintiff submitted that her Honour erred in characterising the acts of the second defendant as not being in the performance or purported performance of his function in the service of the Crown.

35. The first defendant submits that the plaintiff has failed to identify the alleged errors on which it relies. Further, the first defendant submits that these should have been pleaded and were not, although the first defendant does not take issue on that point. I accept, however, that although the plaintiff’s submissions could have been more succinct, the essence of the plaintiff’s submission is that her Honour misapplied the relevant principles to the facts. The first defendant also submits that the plaintiff has an insurmountable difficulty in adopting on the appeal the opposite of what it contended at first instance, namely, that an initial determination is impracticable.

36. The first defendant submits that, although its stance at first instance was that it was impracticable to make an initial determination, its alternative submission that the Crown was not vicariously liable was available on the evidence and should stand. If, however, this Court overturned that decision, then this Court should find that it is impracticable to make an initial determination.

Consideration

37. A step in her Honour’s reasoning in coming to the conclusion that she did was to disregard the second defendant’s account in response to the allegation of the tortious behaviour, other than acknowledging that he denied it. Her Honour said, at [73]:

“… As I am to make a determination under [the Act] as if the tort alleged had been established, the officer’s version of events is not relevant at this stage other than to acknowledge, in fairness, that he denies that the assault and battery took place.”

38. The plaintiff’s account is circumstantial in nature as to why the second defendant came over to where she was at the table. The “leering” the plaintiff allegedly observed before and immediately after the physical contact is consistent with him having approached her at the table specifically and exclusively for the purpose of sexually assaulting her.

39. The brief account by the second defendant that appears in her Honour’s judgment is an admission that, firstly, he had physical contact with the plaintiff at the time and place where she alleged it occurred. Since her Honour accepted the plaintiff’s version for the purposes of the s 9C determination, that admission did not relevantly add to the material before her. However, the admission that he did so whilst moving from one part of the office to another as part of his work duties, namely, “to get a law book of some kind related to the hearing I was running”, had the effect of further aligning his work duties with the “occasion” of the assault. Although he denied he sexually assaulted the plaintiff, on the scant material before her Honour, it would be open to the court at the final hearing to accept elements of the second defendant’s account and still find for the plaintiff. If the court accepted the plaintiff’s account but nevertheless was satisfied that the second defendant sexually assaulted her as he passed her at the table en route to get the book for his prosecution, the gap between his “function” and the tortious act dissolves further, on the basis of “the relevant approach” which is set out in Prince Alfred College v ADC at [81].

40. Her Honour did not further elaborate on why she thought it was appropriate to disregard the second defendant’s account for the purposes of an initial determination. The terms of s 9C do not expressly or, in my view, impliedly disallow the court from having regard to material other than the plaintiff’s account or allegation, the premise for the court’s determination being “if it were established that the tort was committed by the police officer” (emphasis added).

41. The court is not to make an “initial determination” on the question of the vicarious liability of the Crown if it is “impracticable” to do so. An obvious situation that would enliven that proviso is if the court concludes that it is unclear on the material before it whether the alleged tortious act, if proved, was committed in the service of the Crown. In that circumstance, it would be practicable to leave that question to the hearing, when evidence may be led from the parties on that question.

42. It is a situation that is not dissimilar to the state of the evidence on the “no prima facie case” issue that arose in Prior v State of New South Wales. As Sheller JA noted, at 6, it would have been open to the jury to prefer the driver’s version of events over the appellant’s evidence, as to the number and sequence of punches and the releasing of the seatbelt by the officer, thus affording sufficient evidence of the third element for the matter to be left with the jury.

43. Harrison AsJ noted the parallels in this matter with some of the features to be identified in “the relevant approach” in Prince Alfred College v ADC. At [77], her Honour said:

“In this case, the plaintiff was a trainee police officer and [the second defendant] was a police prosecutor. In other words, he was in a position superior to hers. The plaintiff and the [the second defendant] were also stationed in the same room in the course of their duties, which both parties agree provided the opportunity for the alleged sexual assault and battery.”

44. In considering whether the alleged tortious acts were committed in the course of, or incident to, the second defendant’s service to the Crown, her Honour had recourse to Priorv State of New South Wales, and concluded that they were not. Her Honour stated, at [80]:

“… In Prior … the Court distinguished between a police officer performing an authorised act in an unauthorised way, and performing an act out of personal spite. It is my view that a police officer who makes an arrest with the use of physical force, in the performance or purported performance of his duty as a police officer, is distinguishable from a police officer who, in the performance or purported performance of his duty as a police officer, sexually assaults a trainee police prosecutor while they are in the same room. While the State of New South Wales provided the opportunity for the alleged tort, it is difficult to see how the State of New South Wales provided the occasion for the wrong. The sexual assault alleged was an act unconnected with [the second defendant’s] duties as a prosecutor. Also it cannot be said that the sexual assault of a junior employee was a mode of performing a function he was required to do.”

45. In my view, this analysis placed undue emphasis on the factual circumstances of Prior. Although Prior concerned the application of principle to a question of the vicarious liability of the State for a tortious act of a police officer in the context of the Act, it is of limited assistance in a case with this factual matrix, which is closer to cases concerning an abuse of trust or authority placed by an employer in an employee, such as those canvassed in Prince Alfred College v ADC. Indeed, it is not dissimilar to the example provided at [80] of Prince Alfred College, of a criminal act committed by an employee which was facilitated by the position in which the employment placed them vis-à-vis the victim.

Conclusion

46. I have come to the conclusion that her Honour’s decision should be set aside. However, for the reasons I have expressed, it is impracticable to make an initial determination as to the vicarious liability of the first defendant. That decision should wait until the Court has the benefit of being presented with evidence and making relevant findings of fact as to what precisely occurred in the incident, in order to determine whether the assault, if proved, satisfies the final element of s 8(1)(a) of the Act.

47. Although the court was obliged to make an initial determination pursuant to s 9C of the Act, it did not oblige the plaintiff to argue in favour of it, much less that to do so was “essential”. It was open to the plaintiff to join with the first defendant in its first submission that it was impracticable to do so. Accordingly, I will order that the plaintiff be liable for the costs of the motion.

Orders

48. I make the following orders:

(1) The initial determination of the Honourable Associate Justice Harrison on 11 September 2019 that the first defendant is not vicariously liable for the torts allegedly committed by the second defendant, pursuant to ss 9C(a) and (b) of the Law Reform (Vicarious Liability) Act 1983 (NSW), be set aside.

(2)   The determination of whether the first defendant is vicariously liable for the tort allegedly committed by the second defendant be reserved for the final hearing.

(3)   The plaintiff to pay the first and second defendants’ costs of this motion.

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Decision last updated: 06 March 2020