Johnston v State of New South Wales

[2019] NSWSC 1206

Supreme Court

New South Wales

Medium Neutral Citation:

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

Hearing dates:

19 May 2019

Date of orders:

11 September 2019

Decision date:

11 September 2019

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

The Court orders that:

 

(1) In accordance with s 9C(a) and (b) of the Law Reform (Vicarious Liability Act 1983 (NSW), the Court makes an initial determination that the Crown is not vicariously liable for the second defendant’s alleged sexual assault and battery to the plaintiff.

 

(2) The defendant’s notice of motion filed 21 December 2018 is listed for direction before the Registrar at 9.00 am on 18 September 2019

 (3) Costs of the plaintiff’s notice of motion filed 13 February 2019 are reserved.

Catchwords:

PRACTICE AND PROCEDURE - Law Reform (Vicarious Liability) Act 1983 (NSW) s 9C - Initial determination as to the vicarious liability of the Crown - Whether an initial determination under s 9C requires the determination of a separate question under UCPR 28.2

TORT - Vicarious liability — Intentional torts - Assault and battery - Police tort claim - Law Reform (Vicarious Liability) Act 1983 (NSW) s 8 - Vicarious liability of the Crown - Where a police prosecutor is alleged to have committed assault and battery against a trainee prosecutor

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56, 62(2)
Employees’ Liability Act 1991 (NSW), s 5
Law Reform (Vicarious Liability) Act 1983 (NSW), ss 6, 8, 9B, 9C, 9D
Uniform Civil Procedure Rules 2005 (NSW), r 28.2, 28.4

Cases Cited:

Deatons Pty Ltd v Flew (1949) 79 CLR 370
Ilkiw v Samuels [1963] 2 All ER 879
Landini v New South Wales [2008] NSWSC 1280
Lister v Hesley Hall Ltd [2001] UKHL 22; [2002] 1 AC 215
Prince Alfred College Inc v ADC [2016] HCA 37; (2016) 258 CLR 134
Prior v State of New South Wales [1998] NSWCA 289
Trotman v North Yorkshire County Council [1999] LGR 584

Category:

Procedural and other rulings

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 and D Stanton (First Defendant)
C P O’Neill (Second Defendant)

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

File Number(s):

2018/283027

Publication restriction:

Nil

Judgment

1. HER HONOUR: There are two notices of motion before the Court. By notice of motion filed 13 February 2019, the plaintiff seeks firstly, an order that the Court make an initial determination pursuant to s 9C of the Law Reform (Vicarious Liability) Act 1983 (NSW) 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; secondly, should the Court determine that the first defendant would be vicariously liable for the torts allegedly committed by the second defendant, that leave be granted to the plaintiff to amend her statement of claim against the first defendant in accordance with the Court’s determination including, without limitation, to discontinue the proceedings against the second defendant; and finally, should the Court determine that the first defendant would be vicariously liable for the torts allegedly committed by the second defendant, that the proceedings against the second defendant be dismissed. The second defendant played no active role in this notice of motion.

2. By notice of motion filed 21 December 2018, the second defendant seeks an order that insofar as it advances any claim for relief against the second defendant, these proceedings be dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) and/or s 61 of the Civil Procedure Act 2005 (NSW). As this motion is dependent upon the judgment in the first motion, the second defendant’s notice of motion is to be stood over for directions to a date after the judgment in relation to the plaintiff’s notice of motion filed 13 February 2019 has been handed down.

3. The plaintiff is Lina Johnston. The first defendant is the State of New South Wales. The second defendant is Mark Christopher Gorman (“the police officer”).

Background

4. The plaintiff is a former police officer of the NSW Police Force. She brings a Work Injury Damages (“WID”) claim against the first defendant on behalf of the NSW Police Force pursuant to Division 3 of Part 5 of the Workers Compensation Act 1987 (NSW) seeking damages for her past and future economic loss. The plaintiff alleges in her WID claim that she suffered personal injury, damage and loss arising out of the intentional torts of assault and battery occasioned against her by the police officer in the employ of the first defendant, on or about 6 April 2010.

5. These claims are brought against the first defendant pursuant to the Crown Proceedings Act 1988 (NSW). The plaintiff claims that the first defendant is vicariously liable for the second defendant’s alleged tortious conduct pursuant to s 8 of the Law Reform (Vicarious Liability) Act 1983 (NSW). My understanding is that this is the first time that an application has been made to this Court pursuant to s 9C of the Law Reform (Vicarious Liability) Act.

The pleadings

6. I shall refer to the relevant paragraphs of the plaintiff’s statement of claim.

The pleading in the statement of claim

7. The plaintiff’s allegations pleaded in the statement of claim are as follows.

8. The second defendant was a member of the NSW Police Force in the service of the first defendant as a police officer ([23]-[25]) (“the police officer”). As a member of the NSW Police Force, the second defendant was at all material times required to obey any lawful direction given to him by the Commissioner of the NSW Police Force, which he could not lawfully refuse without committing an offence ([27]).

9. On 19 December 2003, the plaintiff commenced employment with the first defendant as a police officer.

10. On or about 11 September 2008, the plaintiff suffered a psychological injury as a consequence of workplace bullying and harassment she experienced while working at the Apprehended Violence Order Unit, Operational Information Agency. The plaintiff submitted a claim for workers compensation and remained off work on sick leave for the period of about 11 September 2008 to 7 December 2008 ([33]-[34]).

11. While on sick leave, the plaintiff sought psychiatric treatment. The first defendant was aware of her treatment ([35]). This aspect of the plaintiff’s claim against the first defendant does not involve the second defendant.

12. The part of the plaintiff’s claim which involves the second defendant begins after the plaintiff returned to work on 8 December 2008. Certain restrictions were imposed upon her after her return, including that the plaintiff was not to work at the Apprehended Violence Order Unit, Operational Information Agency ([36]).

Training as a Police Prosecutor

13. On 8 December 2008, the plaintiff was temporarily deployed by the first defendant to Police Prosecutions Command. In October 2009, she was formally deployed to the Police Prosecutions Unit, where she began training as a Police Prosecutor. Her training as a prosecutor took place at Penrith Local Court, Parramatta Local Court and Parramatta Children’s Court.

Determination of the Crown’s vicarious liability

14. Specifically at paragraphs [48] and [49] of the statement of claim, the plaintiff pleaded:

“48 On or about 6 April 2010, after the Plaintiff had arrived at Parramatta Children’s Court, she reported to her superior officer, Senior Sergeant Ashley Metcalfe (“Metcalfe”), a police officer in the employ of the first defendant, who allocated her to conduct the general court list that day.

49. On or about 6 April 2010, at or about 9:20 AM, the second defendant, in the course of his employment with the first defendant, committed intentional torts of assault and battery against the plaintiff, in the course of her employment with the first defendant, at Parramatta Children’s Court.

Particulars of intentional torts of assault and battery.

a. The second defendant leered at the plaintiff outside the prosecutors office at the Parramatta Children’s Court in an inappropriate and suggestive manner, which made the plaintiff uncomfortable.

b. Pursuant to the direction given to the plaintiff by Metcalfe, the plaintiff began reviewing the Court files for the matters listed that morning.

c. The plaintiff was at the ‘list table’ next to the prosecutor’s office at Parramatta Children’s Court when conducting her review.

d. The plaintiff was standing but slightly bent over the table at the time.

e. The plaintiff felt someone suddenly push their body up against hers. The unidentified person then forcibly bent the plaintiff over the list table from her waist up, and the plaintiff had to brace herself against the table with both of her hands to avoid falling face first onto the table.

f. [The second defendant sexually assaulted the plaintiff]

g. The plaintiff looked over her shoulder and identified her assailant as being the second defendant, who again leered at her in an inappropriate and suggestive manner.”

15. The State of New South Wales in its amended defence filed 7 March 2019 denies paragraphs [48] and [49] pleaded in the plaintiff’s statement of claim.

The relevant statutory framework – the Law Reform (Vicarious Liability) Act 1983 (NSW)

16. The relevant legislative framework to determine the issue of vicarious liability in respect of legal proceedings is to be found in Part 4 of the Law Reform (Vicarious Liability) Act, which is headed “Legal proceedings for damages for torts by police officers.”

17. Section 5 of the Law Reform (Vicarious Liability) Act defines independent function. It relevantly reads:

“…

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.

…”

18. Section 6 reads:

“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.”

19. Section 8 describes the elements that need to be present before a court can determine that the state is vicariously liable. It reads

“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

…”

20. Section 9B of the Law Reform (Vicarious Liability) Act reads:

“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.

…”

21. Section 9C is central to the plaintiff’s application. It reads:

“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.”

22. Section 9E reads:

“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).”

23. On 25 November 2003, the second reading speech of the Police Legislation Amendment (Civil Liability) Bill, Mr John Watkins, Minster for Police stated:

“Our police need and deserve the community’s full support in tackling crime and making the community safe. They need to know that in carrying out their challenging duties—in a fair and impartial manner—they will not be subject to spurious claims that will put them and their families at risk. They need to know that if a criminal tries to abuse the system to escape justice, the system will back them up. That is why the Police Legislation Amendment (Civil Liability) Bill is so important. It will provide protection against legal claims for police and swing the balance back in their favour. This bill continues the reforms brought forward under the Civil Liability Act 2002 and the Civil Liability Amendment (Personal Responsibility) Act 2002.

The bill strikes the necessary balance. It protects police from personal legal claims, while still ensuring officers who have engaged in serious and wilful misconduct can be held accountable. The bill is governed by a fundamental principle: no police officer should ever fear that their home or other personal assets are at risk simply because they have done their job. In November last year the Australasian Centre for Policing Research published a paper entitled “Issues in Civil Litigation Against Police”. It found the incidence and nature of civil litigation by members of the public against police are growing issues of concern. Although New South Wales has laws to prevent individual police and other public officers from being personally liable for damages arising from their acts or omissions, the Government believes these additional measures are needed.

…

I turn to the detail of the bill. The most significant provisions are in schedule 2 to the bill, which amends the Law Reform (Vicarious Liability) Act. Items [1] to [4] of schedule 2 are machinery provisions that make that Act easier to read and interpret. Item [5] of the schedule inserts into the Act a new part 4 to deal with legal proceedings for the torts of police officers. A new section 9B is the central provision of the bill. Section 9B (1) provides that, subject to specified exceptions, a person cannot directly sue a police officer for a police tort claim. Section 9B (2) provides that in such cases the plaintiff can only sue the Crown. Section 9E (f) makes it clear that this restriction does not apply where the plaintiff is suing the police officer for something the officer did in a personal capacity. The practical effect of subsections (1) to (3) of section 9B is to prevent an individual officer from being directly sued, unless the vicarious liability of the Crown is ultimately an issue in dispute.”

The State of NSW’s submissions

24. The State of NSW submitted that the Law Reform (Vicarious Liability) Act does not have the effect of making the State liable for an act to which the common law principles of vicarious liability do not apply to make an employer liable. The Law Reform (Vicarious Liability) Act extends the application of the principles of vicarious liability to the State, but does not otherwise expand the circumstances in which liability will be attributed to the State.

25. Section 6 of the Law Reform (Vicarious Liability) Act deems a police officer to be a person in the service of the Crown, and not a servant of the Crown. Consequently, s 8 of Law Reform (Vicarious Liability) Act has application to the conduct of police officers. The opening words demonstrate the purpose of s 8, namely to reverse the common law rule that the State could not be liable for a person in its service.

26. In relation to a police officer, the phrase “in the performance or purported performance by the person of a function” is a reference to the function of a police officer. For present purposes that phrase creates at a minimum (a proposition demonstrated by s 9B and s 9E of the Law Reform (Vicarious Liability) Act) the same condition for the attribution of vicarious liability to the State as identified in cases such as Prince Alfred College Inc v ADC [2016] HCA 37; (2016) 258 CLR 134 (“Prince Alfred College”), namely that the service of the Crown was both the opportunity and the occasion for the wrong. So much follows, applying the well-known principles of statutory construction, from (a) the language used, (b) the purpose which was to remove an immunity of the State, not to create a liability of a different scope, and (c) the use of language in s 8 which discloses an intention to reflect the well-established common law conception of vicarious liability. A gratuitous criminal act, although committed during work hours, is not a function of a police officer. The alleged acts are not capable of having been committed “in the performance or purported performance by the person of a function” (that is, that performance of the function arising from the service of the Crown is both the opportunity and occasion for the wrong).

27. Section 8(1)(a) makes it clear that, for the State of NSW to be vicariously liable for the act of a police officer, there must be a sufficient connection between the “person’s service” with the Crown, or that the act or omission “is directed to or is incidental to the carrying on of any business, enterprise, undertaking or activity of the Crown”. The connection with the function of the Crown is apparent. Simple contemporaneity in point of time (the opportunity) is not sufficient. Put another way, the Law Reform (Vicarious Liability) Act provides that the State will only be vicariously liable in the circumstances that have previously been identified at common law, namely, when a person is acting within their authority or alternatively is performing an authorised act in an unauthorised manner (the opportunity and the occasion for the wrong). An example of the latter would be a police officer arresting a suspect but assaulting the person while doing so. Assaulting a person while walking through the officer’s workplace is of a different character and not in the course of the officer’s service.

24. Section 9B of the Law Reform (Vicarious Liability) Act reinforces the need for there to be a sufficient connection between the performance of an officer’s functions as a police officer and the tort committed. Section 9B(1) is in the following terms:

“A police tort claim is a claim for damages for a tort allegedly committed by a police officer (and 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 separately with any other person.”

29. Likewise, section 9E supports application of the common law approach to vicarious liability is unaffected by the introduction of the Law Reform (Vicarious Liability) Act. Section 9E states reads:

“Nothing in this part:

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

… “

30. The common law continues to apply when considering the issue of vicarious liability of the State for the conduct of police officers. Not every act performed in the course of service as an officer will result in the Crown being held liable: see Prior v State of New South Wales [1998] NSWCA 289 (“Prior”), referred to in more detail later in this judgment. Given the pleading against the police officer discloses a gratuitous criminal act by him not in any way connected with a function he was required to perform, a finding of vicarious liability should not be made.

31. Both parties submitted that the common law is relevant to a consideration of vicarious liability under the Law Reform (Vicarious Liability) Act. Counsel for the plaintiff argued that s 8 does not “rub out” the common law, but creates a statutory regime of vicarious liability (T 17.31). Counsel for the State of NSW argued that this language in s 8(1)(a) “picks up conceptually the same idea [as] common law vicarious liability”. Otherwise, counsel for the State of NSW argued, the draftsperson would not have used the phrase “vicarious liability” but would have simply declared the Crown to be statutorily liable in respect of relevant torts (T 26.15). The effect of the section is therefore that the Crown is “vicariously liable if vicarious liability is attractive” (T 26.16-17).

The caselaw

32. In relation to vicarious liability in police tort claims, both parties referred to Prior and Prince Alfred College.

Prior

33. Prior is a helpful starting point for the understanding the law of vicarious liability in the context of police tort claims. In Prior, the appellant claimed for damages after a police officer assaulted and falsely imprisoned him in the course of an arrest. Under s 8(1) of the Law Reform (Vicarious Liability) Act, the Crown was held to be vicariously liable for his tortious acts.

34. In Prior, the Court of Appeal (per Meagher JA, Sheller and Handley JJA agreeing) discussed the “three factual ingredients” which needed to be made out for s 8(1) of the Law Reform (Vicarious Liability Act) to be operative. The first is that a tort must be committed by someone in the service of the Crown, which under s 6 includes a police officer. The second was that the person was actually or purportedly performing a “function”, which his Honour found included performing an arrest. The third ingredient was that the function must be in the course of, or incidental to, the person’s service with the Crown, which his Honour held was to be interpreted in the same way the words “in the course of his employment” had been interpreted generally in cases concerning employment.

35. It was not the trial judge’s three ingredient approach to the application of s 8(1) of the Law Reform (Vicarious Liability) Act which was subject of an appeal, but rather his holding with respect to the third ingredient. His Honour had held that there was no evidence on which a jury, properly instructed, could find that this ingredient arose on the facts of the case. However, on appeal, Sheller JA stated that for the purposes of determining vicarious liability under the circumstances:

“…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.”

36. Sheller JA continued that the difference would depend on the facts of the case. On the one hand, he stated:

“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 Constable Standley’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.”

37. Sheller JA then considered that the jury may have come to a different conclusion had it heard from another witness, whose evidence was that the officer only punched the appellant after he was prevented from arresting him because his seat belt held him in the car. His Honour stated that on that evidence:

“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 Constable Standley 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.”

38. In reaching the same conclusion as Sheller JA, Meagher JA explained:

“In my view, it would have been open to the jury to conclude that the behaviour of Constable Standley 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’. It was for the jury to say. They would have found their task all the easier in the absence of evidence from Constable Standley. Why should they conclude, or even presume, that the Constable was merely acting out of personal spite? Why could they not conclude that the Constable was attempting to effect an arrest which everyone in the world except him knew he had no right to make and in any event was effected in a wrongful and inappropriate manner? Deaton v Flew has nothing to do with this case; the barmaid in that case was employed to serve beer not to maintain law and order; in this case the policeman’s job was to maintain law and order, by (inter alia) making such arrests as he saw proper.”

39. As Prior illustrates, determining whether an officer committed a tortious act in the course of, or incident to, his or her service to the Crown involves a careful characterisation of the act in context.

40. Returning to these present proceedings, counsel for the plaintiff framed the question before this Court as follows: is the police officer’s alleged assault to be considered an act in the performance of authorised duties but performed in an unauthorised manner, or an act insufficiently connected with his duties such that it was a “frolic of his own?” (T 9.39-44).

41. So far as Prior is concerned, the plaintiff argued that no practical, realistic distinction can be drawn from the circumstances that arise in the proceedings to those in Prior. In the present proceedings, the police officer and the plaintiff were standing in a room to which they were assigned. The evidence was that the police officer “was in the movement of walking to his desk to get a book” when he allegedly assaulted the plaintiff (T 19.47). Counsel for the plaintiff asked, “Why is it more, or less, descriptive of someone performing [his] duty as a police officer to be preparing a brief as best [he] can for prosecution, than arresting a suspect?” The plaintiff argued that to distinguish between the two is to artificially extract the moment of the tortious act from the police officer’s authorised activities (T 10.3). If that were the operation of the law, no claim against a police officer who has departed from his or her authorised duties in a criminal way could ever be one for which the Crown was vicariously liable, because the Crown never authorises criminal acts.

42. Counsel for the State of NSW argued that to the contrary, Prior distinguishes between actions which are “incident of a police officer’s function but…in an improper manner, and assaulting someone out of personal spite.” In the present proceedings, the officer is alleged to have walked across a room and engaged in a gratuitous indecent assault. He wasn’t working the case up or conducting it in court (T 26.14-17). Whether he was holding a book in his hand, counsel submitted, was of “spectacular irrelevance” (T 36.18).

Prince Alfred College

43. Prince Alfred College is a more recent authority on the common law approach to vicarious liability. In Prince Alfred College, the plaintiff sued the college in respect of sexual abuse committed by a housemaster in its employ decades earlier, when the plaintiff was a young boarder. This case provides a thorough consideration of the state of the law of vicarious liability in Australia, with reference to its development in Canada and the United Kingdom. In its judgment at [39]-[42], the plurality outlined the evolving language employed by Australian courts when considering vicarious liability:

“[39] …Vicarious liability is imposed despite the employer itself not being at fault. Common law courts have struggled to identify a coherent basis for identifying the circumstances in which an employer should be held vicariously liable for negligent acts of an employee, let alone for intentional, criminal acts.

[40] Vicarious liability has not to date been regarded as a form of absolute liability, although policy choices, and the questions posed for the determination of vicarious liability, can lead in that direction. The traditional method of the common law of confining liability, in order to reflect some balance between competing interests, is the requirement that the employee’s wrongful act be committed in the course or scope of employment. At least this provides an objective, rational basis for liability and for its parameters.

[41] Difficulties, however, often attend an enquiry as to whether an act can be said to be in the course or scope of employment. It is to some extent conclusionary and offers little guidance as to how to approach novel cases. It has the added disadvantage that it may be confused with its use in statutes, where it has a different operation. In statutes providing compensation for injury suffered by employees it operates as a limit upon a right to compensation; in the common law it is an essential requirement for vicarious liability. But it has not yet been suggested that it should be rejected. It remains a touchstone for liability.

[42] Long ago, Sir John Salmond proposed tests for determining whether an act was in the course of employment. They were whether the act (a) is authorised by the employer; or (b) is an unauthorised mode of doing some other act authorised by the employer. He went on further to explain that an employer would also be liable for unauthorised acts provided that they are ‘so connected’ with authorised acts that they may regarded as modes, although improper modes, of doing them.”

44. The language of “authorisation” in [42] above reflects the approach in Prior, where the Court spoke of the Crown’s vicarious liability in respect of an officer’s acts which were incident to his function, but performed in an improper manner.

45. In Prince Alfred College, their Honours then stepped through more recent authorities from the courts of Canada and the United Kingdom, before outlining what they call the “relevant approach” to the present Australian case. At [80]-[81], their Honours stated:

“[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 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 the opportunity for the commission of a wrongful act is not of itself a sufficient reason to attract vicarious liability. As Deatons 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 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.”

46. In their judgment in Prince Alfred College at [130]-[131], the plurality agreed that the “relevant approach” is applicable law. However, their Honours cautioned against applying the approach as if it were an “absolute rule”:

“[130] We accept that the approach described in the other reasons as the ‘relevant approach’ will now be applied in Australia. That general approach does not adopt or endorse the generally applicable ‘tests’ for vicarious liability for intentional wrongdoing developed in the United Kingdom or Canada (or the policy underlying those tests), although it does draw heavily on various factors identified in cases involving child sexual abuse in those jurisdictions.

[131] The ‘relevant approach’ described in the other reasons is necessarily general. It does not and cannot prescribe an absolute rule. Applications of the approach must and will develop case by case. Some plaintiffs will win. Some plaintiffs will lose. The criteria that will mark those cases in which an employer is liable or where there is no liability must and will develop in accordance with ordinary common law methods. The Court cannot and does not mark out the exact boundaries of any principle of vicarious liability in this case.”

The plaintiff’s submissions

47. In considering whether the plaintiff is entitled to rely upon the Law Reform (Vicarious Liability) Act for the purposes of establishing that the State of New South Wales is vicariously liable for the second defendant’s alleged tortious conduct, section 8(1) of the Law Reform (Vicarious Liability) Act requires the following:

1. that a tort was committed, or allegedly committed, by a person “in the service of the Crown”; and

2. that the tort was committed while the tortfeasor was performing, or purportedly performing, a “function”, which pursuant to section 5(2)(a) of the Law Reform (Vicarious Liability) Act “includes a reference to a power, authority or duty”; and

3. that the performance or purported performance of the “function” was “in the course of the person’s service with the Crown”, or incidental to that service.

48. In respect of each of those elements, the plaintiff submitted the following:

1. the intentional torts of assault and battery were allegedly committed against the plaintiff on 6 April 2010 by the second defendant. Section 6 of the Law Reform (Vicarious Liability) Act provides that “a police officer shall be deemed to be a person in the service of the Crown and not a servant of the Crown”. Accordingly, the second defendant was a person in the service of the Crown at the time of his alleged wrongdoing;

2. the second defendant was a police officer in the employ of the NSW Police Force who admits that he was “on duty” at Parramatta Children’s Court as a police prosecutor on 6 April 2010;

3. although it is not necessary to make findings of fact at this interlocutory stage, it appears uncontroversial that the second defendant was present at that time, as he stated in an interview with the NSW Police Force on 20 September 2010:

“... I was running the matter of Jebba Dennis ... concerning a two year old African girl that had been whipped with a power cord 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 argued that by accepting the police officer’s account at face value, the activity in which he was engaged at the relevant time undoubtedly involved the performance of his duty and/or function as a police prosecutor in the service of the Crown. He allegedly assaulted the plaintiff in the course of his employment and in the performance of his function as police officer. The plaintiff contends that his act, which he committed while moving from one area of the Prosecutor’s Office to another, constituted an unauthorized or improper mode or manner of doing what he was authorized and employed to do.

49. The plaintiff submitted that for the purposes of determining the State of New South Wales’ vicarious liability, the police officer’s acts are analogous to an police officer assaulting a suspect during an arrest. The duties that the police officer performed in the service of the State of NSW which ultimately necessitated him moving past and behind the plaintiff, at which moment the alleged assault occurred, are equally in the purview of the role of an officer as conducting an arrest. The police officer was authorized to pass behind the plaintiff to move to the desk, but was not authorized in the manner in which he used the opportunity as the occasion to allegedly commit the act.

50. In Landini v New South Wales [2008] NSWSC 1280 (“Landini”), Hall J discussed the application of s 8 of Law Reform (Vicarious Liability) Act at [164] as follows:

“[164] It is, in my opinion, clear that the application of s 8 is not to be determined simply by asking the question as to whether the acts of a police officer (such as assault, false imprisonment, obtaining admissions under duress or using fabricated evidence for the purpose of maintaining a prosecution) were ‘so foreign to a police officer’s duty’. Its application depends upon whether, on the facts of the particular case, it can be said that, though they be actions that are contrary to the sworn duty of a police officer and involve criminality, they nonetheless, on the facts, attract the operation of the provisions of s 8 because they can be said to be ‘in the performance or purported performance of a function’.”

51. The plaintiff also referred to the English case of Trotman v North Yorkshire County Council [1999] LGR 584 (“Trotman’s case”). In Trotman’s case, (and seemingly in agreement with the State of NSW’s position in these current proceedings), Chadwick LJ of the English Court of Appeal stated 592-593 that it was “impossible to hold that the commission of acts of indecent assault can be regarded as a mode - albeit, an improper or unauthorized mode - of doing what, on the case advanced, the deputy headmaster was employed by the Council to do…Rather, it must be regarded as an independent act of self indulgence or self gratification.”

52. However, the decision was later criticised in Lister v Hesley Hall Ltd [2001] UKHL 22; [2002] 1 AC 215 (“Lister”). In Lister, Lord Steyn stated at [23]:

“…at the root of the reasoning of the Court of Appeal [in Trotman's case] lay a terminological difficulty. Butler-Sloss LJ thought…that the sexual acts were ‘far removed from an unauthorised mode of carrying out a teacher’s duties on behalf of his employer’...”

53. Lord Steyn then extracted Chadwick LJ’s statement at 592-593 reproduced above, before continuing at [23]:

“In giving the unanimous judgment of the Canadian Supreme Court in Bazley v Curry (1999) 174 DLR (4th) 45 McLachlin J criticised the decision in Trotman's case in the following terms (at 57 (para 24)):

‘… the opinion’s reasoning depends on the level of generality with which the sexual act is described. Instead of describing the act in terms of the employee’s duties of supervising and caring for vulnerable students during a study trip abroad, the Court of Appeal cast it in terms unrelated to those duties. Important legal decisions should not turn on such semantics. As Atiyah points out [Vicarious Liability in the Law of Torts, p 263]: “conduct can be correctly described at varying levels of generality, and no one description of the ‘act’ on which the servant was engaged is necessarily more correct than any other”.’

I am in respectful agreement with this comment.”

54. The plaintiff argued that in determining whether the police officer’s tortious conduct occurred in the performance or purported performance of his functions authorised by the State of NSW, albeit in a wrongful and unauthorised manner, it is crucial to focus on the right act of the employee. In Lister at [42], Lord Steyn referred to Ilkiw v Samuels [1963] 2 All ER 879 at 889, where Diplock LJ stated that the nature of the employment in question “must be looked at broadly, not dissecting the servant's task into its component activities… [but] by asking: What was the job in which he was engaged for his employer? and answering that question as a jury would.”

55. In answering that question, the plaintiff argued that the job, role, function and/or duty in which the second defendant was engaged on 6 April 2010 was the prosecution of a matter at the Parramatta Children’s Court. The State of New South Wales authorised that function. The State of New South Wales does not contend that the police officer was not performing his functions of a prosecutor on that day. All the State of New South Wales has said is that “assaulting a person while walking through the officer’s workplace is of a different character and not in the course of the police officer’s service”. The plaintiff argued that the fundamental issue with this submission is that it falls into the error of dividing or dissecting the police officer’s task of prosecution into component activities, which is the approach cautioned against by Lord Steyn in Lister referred above. If the State of New South Wales’ submission was to be adopted, the Court would be engaged in an artificial dissection of each moment of the police officer’s functions and activities on 6 April 2010, examining and asking whether each of those individual components were “in the performance or purported performance of his functions.”

56. According to the plaintiff, looking at the matter broadly, the police officer’s employment with the Police Force was both the opportunity and occasion for the wrong. The State of New South Wales is therefore “responsible not merely for what he authorises his servant to do, but also for the way in which he does it.”

The State of New South Wales’ submissions

57. The State of NSW submitted that a gratuitous criminal act, although committed at work, is not a function of a police officer. For this reason, the alleged acts are not capable of being “in the performance or purported performance by the person of a function” as outlined under s 8 of the Law Reform (Vicarious Liability) Act.

58. For the following reasons, the State of New South Wales submitted that it is not liable for the conduct in which the police officer is alleged to have engaged.

1. In the relevant pleading at [49] of the plaintiff’s statement of claim, she repeatedly describes the act as an intentional tort of assault and battery against her.

2. Noting the factual basis alleged, the intentional tort would be properly characterised as a criminal act. In order to prove vicarious liability, the plaintiff must prove that the act of the police officer was either an act authorised by the employer or alternatively, the relationship between the defendants was both the opportunity and the occasion for the wrong. That is the test at law to establish vicarious liability for a wrong of this character.

3. It is not alleged, nor could it be sensibly suggested, that what the police officer did was something authorised by the State of NSW.

4. Further, the alleged assault is not an act that was performed as part of the duties or functions of the police officer. Much like the barmaid in Deatons Pty Ltd v Flew (1949) 79 CLR 370 (“Deatons”), it was an act of a personal nature unconnected with the second defendant’s employment duties: see also Prince Alfred College at [53]-[55]. The fact that the employment created the opportunity for the assault to take place is not enough to result in the employer being vicariously liable for the assault. Put another way, the alleged conduct was not the performance of an authorised act in an unauthorized manner. It cannot be said that the assault of another employee was a mode (albeit illegal) of performing a function the employee was required to do.

Additional submissions

59. Counsel for the State of New South Wales argued that the facts so far known indicate that the Crown provided the opportunity for the alleged tort, and nothing more. The plaintiff and the police officer were put into the same room, but in a manner “no different to an office environment” (T 37). Counsel also submitted that the word “may” in [81] of the majority decision in Prince Alfred College has a different emphasis than that suggested by the plaintiff. “May” means could be enough to establish vicarious liability, but will not necessarily be so.

60. Counsel for the plaintiff argued that the effect of the legislation is that the officer “should not be the first point of call”, and if he or she is, “it should be the suit of the state, not of the plaintiff” (T 18.10-11). According to the plaintiff, the court’s obligation to make a determination pursuant to s 9C “as early as practicable” cannot mean that a Court can only make a determination in cases where the facts are all agreed, or where it’s “so obvious that there’s no dispute” (T 43.43). That would be analogous to saying that there was no factual issue to be determined at trial, which is “nonsense in practical terms” (T 43.45).

61. The plaintiff’s position is that under the circumstances of this case, it is not only practicable to make an initial determination, but “essential” (T 8.35-37). Counsel for the plaintiff argued that the wording of 9C makes it clear that it is not intended to be a trial within a trial, but rather asks the Court to engage in a hypothetical of a kind (T 17.1-2). Approached in this way, the initial determination under s 9C is like an application for summary judgment, where the Court is asked to take the plaintiff’s case at its highest.

62. The plaintiff further submitted that the State of NSW could cross claim against the police officer, so that in the event that at it was not found to be vicariously liable, it would have a claim against him.

Conclusion

63. It is convenient that I start with the second reading speech of the Police Legislation (Civil Liability) Bill. As the then Minister for Police stated, the bill strikes a balance between protecting the Police Force from personal legal claims while still ensuring that officers who have engaged in serious and wilful conduct can be held accountable. In the second reading speech, no specific reference was made to s 9C of the Law Reform (Vicarious Liability) Act.

64. Pursuant to s 6 of the Law Reform (Vicarious Liability) Act, the second defendant, the police officer, shall be deemed to be a person in the service of the Crown.

65. Part 3 of the Law Reform (Vicarious Liability) Act is headed “Vicarious liability of Crown for persons in its service”. Part 3 consists of only s 8. Section 8 provides that notwithstanding any law to the contrary, the Crown is vicariously liable for a tort committed by a person in the service of the Crown in his or her performance of a function where that performance is in the course of, or incident of, the person’s service.

66. According to Landini, excerpted at [52] of this judgment, the application of s 8 is not to be determined simply by asking whether the acts of a police officer such as assault were “so foreign to a police officer’s duty”. Rather, its application depends upon whether, on the facts of the particular case, it can be said that those acts attract the operation of the provisions of s 8 because they can be said to be “in the performance or purported performance of a function”.

67. Hence, in accordance with s 8(1)(a) of the Law Reform (Vicarious Liability) 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.

68. Part 4 of the Law Reform (Vicarious Liability) Act is headed “Legal proceedings for damages for torts by police officers”. Part 4 consists of ss 9-9G. Pursuant to s 9B(1), a police tort claim is identified as a claim for damages for a tort allegedly committed by a police officer in performance or purported performance of the officer’s functions as a police officer. In these present proceedings, the police officer on the day of the alleged sexual assault and battery was performing his role as a police prosecutor, and was therefore acting in performance or purported performance of his functions as a police officer.

69. Pursuant to s 9B(2) of the Law Reform (Vicarious Liability) Act, except as provided under Part 4, 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.

70. Section 9B(3) of the Law Reform (Vicarious Liability) Act provides that a person who makes a police tort claim against the Crown may join the police officer concerned as a party to the proceedings only if the Crown denies that it would be vicariously liable if it were established that the police officer concerned had committed the tort. In these present proceedings, the State of New South Wales denied liability for the second defendant’s alleged tortious acts of sexual assault and battery. As the Crown has denied vicarious liability, then pursuant to s 9B(3), the plaintiff may join the police officer as a party to the proceedings.

71. Because vicarious liability of the Crown is in issue, s 9C of the Law Reform (Vicarious Liability) Act is applicable. As the statement of claim is currently pleaded, both the State of New South Wales and the police officer are parties to the proceedings. In accordance with ss 9C(2) and (3), that means this 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. That determination is to be made as soon as is reasonably practicable during the proceedings, unless the Court considers it impracticable to make such a determination before it determines whether or not the tort was committed.

72. As previously stated, I will take the plaintiff’s case at its highest on the facts as pleaded in her statement of claim, which are reproduced at [14] of this judgment. Briefly those allegations are as follows. The plaintiff alleges that on the morning of 6 April 2010, the police officer leered at her outside the prosecutor’s office at the Parramatta Children’s Court (“the Court”) in an inappropriate and suggestive manner. Later, the plaintiff was directed to and began reviewing the Court files for the matters listed that morning at a table next to the prosecutor’s office at the Court. While standing at the table conducting her review, the plaintiff felt someone suddenly push their body up against hers. That person then forcibly bent her over the list table from her waist so that she had to brace herself against the table with both of her hands. The person then sexually assaulted and committed battery against her. When she looked over her shoulder, she identified her assailant as being the police officer, who again leered at her in an inappropriate and suggestive manner.

73. The police officer’s version of events is summarised at [48](c) of this judgment. He says that it was while walking across the room towards his desk, perhaps to retrieve a law book in relation to a hearing, that he is alleged to have “come into contact” with the plaintiff. As I am to make a determination under s 9C(a) of the Law Reform (Vicarious Liability) 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.

74. The plaintiff and the State of NSW agree that Prior and Prince Alfred College outline the applicable case law on vicarious liability in relation to these proceedings, the latter of which is most relevant.

75. As discussed earlier in this judgment, the fact that a wrongful act is a criminal offence, such as sexual assault and battery, does not preclude the possibility of vicarious liability. It is possible for a criminal offence to be an act for which the apparent performance of employment provides the occasion: see Prince Alfred College at [80]. The parties agree that this is so. However, the fact that employment affords the opportunity for the commission of a wrongful act is not of itself a sufficient reason to attract vicarious liability: Prince Alfred College at [80]. A wrongful act for which employment provides an opportunity may yet be entirely unconnected with the employment, such as in Deatons.

76. The “relevant approach” outlined in Prince Alfred College states that the role and responsibilities given to an employee may lead the Court to conclude that the employment not only provided the opportunity, but also the occasion for the wrongful act. Relevant factors the Court may consider include the nature of the employee’s power, trust, control and the ability to achieve intimacy with the victim: see Prince Alfred College at [81]. In circumstances where the employee has taken advantage of the position given to him or her, the wrongful act may be regarded as committed in the course or scope of employment.

77. In this case, the plaintiff was a trainee police officer and the police officer was a police prosecutor. In other words, he was in a position superior to hers. The plaintiff and the police officer 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. The plaintiff submitted that the facts demonstrate that the police officer’s employment provided more than an opportunity for the wrong. By placing the plaintiff into the room with the police officer, the State of New South Wales provided the occasion for the wrong because it “exposed her to what ultimately took place” (T 13.46-47).

78. The State of New South Wales says that on the contrary, the parties were put in the room “in a manner no different to an office environment”, and that it did not provide the occasion for the wrong. I note that other police officers were also present in the room at the time of the alleged assault.

79. The plaintiff’s submissions in relation to Prior are outlined at [41] of this judgment. In essence, counsel for the plaintiff argued that it is no more or less descriptive of an officer performing his duty if he is preparing a brief for prosecution, as the officer was in this case, than if he is arresting a suspect, as the officer was in Prior. The plaintiff argued that to distinguish between the two actions is to artificially extract the moment of the tortious act from the police officer’s authorised activities (T 10.3). If that were the operation of the law, the Crown would never be vicariously liable for the tortious acts of a police officer who has departed from his or her authorised duties in a criminal way.

80. Determining whether the officer’s alleged tortious acts were committed in the course of, or incident to, his service to the Crown requires a careful consideration of the acts in context. In Prior, excerpted at [37] of this judgment, 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 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.

81. Vicarious liability of the Crown is in issue. Both the State of New South Wales and the police officer are parties to the proceedings. In my view, it is not impractical in these circumstances to make an initial determination for the purposes of s 9C of the Law Reform (Vicarious Liability Act. For the reasons given above, it is my view that the Crown would not be vicariously liable for the tortious acts alleged, if it were established that those acts were committed by the police officer. In accordance with s 9C(a) and (b) of the Law Reform (Vicarious Liability) Act, I make an initial determination that the Crown is not vicariously liable for the second defendant’s alleged sexual assault and battery to the plaintiff.

82. I note that that the State of New South Wales can bring proceedings against the police officer claiming damages, or a cross claim seeking contribution or indemnity in any legal proceedings from the police officer for a tort he has committed: see 9E(b).

Separate determination

83. The State of New South Wales submitted that by virtue of order 1 of the notice of motion, the plaintiff effectively seeks the determination of a separate question. The power to order that a question be decided separately from, and before any other, questions in the proceedings is found in s 62(2) of the Civil Procedure Act and in Uniform Civil Procedure Rules 28.2.

84. The plaintiff disagreed and submitted that first defendant’s position is misconceived in two important respects. They are firstly, the statutory scheme set out in Part 4 of the Law Reform (Vicarious Liability) Act clearly sets out the required process where vicarious liability is pleaded by a plaintiff but denied by the State; and secondly, in making its determination, the Court is not called upon to make any final findings as to the facts of the matter or the credit of a party or witness.

83. The general rule is that proceedings are listed for trial generally, for hearing of all questions and issues arising in the proceedings: see s 56(1) and (2) of the Civil Procedure Act. The court’s power to make orders for the decision of any question separately from any other question under UCPR 28.2 arises as an exception to the general rule.

84. It is my view that an order pursuant to UCPR 28.2 and 28.4 are not appropriate here. This is because this Court is compelled by force of statute, namely s 9C of the Law Reform (Vicarious Liability) Act to 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, unless the Court decides that such a determination is impracticable. I have already made a decision in accordance with s 9C of the Law Reform (Vicarious Liability) Act. In these circumstances, UCPR 28.2 and 28.4 are otiose. For these reasons, I decline to make orders pursuant to UCPR 28.2 and 28.4.

Costs

87. Costs are discretionary. In the exercise of my discretion, the appropriate order is that costs are reserved.

The Court orders that:

(1) In accordance with s 9C(a) and (b) of the Law Reform (Vicarious Liability Act 1983 (NSW), the Court makes an initial determination that the Crown is not vicariously liable for the second defendant’s alleged sexual assault and battery to the plaintiff.

(2)   The defendant’s notice of motion filed 21 December 2018 is listed for direction before the Registrar at 9.00 am on 18 September 2019.

(3)   Costs of the plaintiff’s notice of motion filed 13 February 2019 are reserved.

**********

Decision last updated: 11 September 2019