New South Wales v Ibbett

Case [2006] HCA 57


HIGH COURT OF AUSTRALIA

GLEESON CJ,
GUMMOW, KIRBY, HEYDON AND CRENNAN JJ

STATE OF NEW SOUTH WALES  APPELLANT

AND

DOROTHY ISABEL IBBETT  RESPONDENT

New South Wales v Ibbett [2006] HCA 57
12 December 2006
S227/2006

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation

J E Maconachie QC with E Chrysostomou for the appellant (instructed by Crown Solicitor for New South Wales)

J J J Garnsey QC with B E Kinsella for the respondent (instructed by James Fuggle)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

New South Wales v Ibbett

Tort – Trespass – Whether recognition of occupiers' rights of quiet enjoyment of land an appropriate consideration when awarding damages.

Damages – Aggravated damages – Exemplary damages – Where assault and trespass committed by police officers – Whether an award of general damages, aggravated and exemplary damages involves punishment twice for the same wrong.

Damages – Exemplary damages – Vicarious liability – Where the Law Reform (Vicarious Liability) Act 1983 (NSW) and the Police Legislation Amendment (Civil Liability) Act 2003 (NSW) assigned liability of police officers to the Crown – Whether award of exemplary or aggravated damages against the Crown appropriate.

Words and phrases – "double punishment", "aggravated damages", "exemplary damages", "vicarious liability".

Crown Proceedings Act 1988 (NSW), s 5.
Law Reform (Vicarious Liability) Act 1983 (NSW), ss 6, 8, 9B, 9G(2).
Police Legislation Amendment (Civil Liability) Act 2003 (NSW).

  1. GLEESON CJ, GUMMOW, KIRBY, HEYDON AND CRENNAN JJ.   This appeal by the State of New South Wales from the New South Wales Court of Appeal[1] raises issues the resolution of which depends upon the interplay between the common law and several items of New South Wales legislation.  The issues involve the nature and extent both of the interests protected and vindicated by an award of damages against the State for trespass to land and of the vicarious liability of the State for exemplary damages awarded in an action for trespass to land and for assault.

  2. It should be observed at the outset that much of the criticism respecting the remedy of exemplary damages has been stimulated by such awards in defamation actions.  This appeal does not arise from an action of that kind and, in any case, under the recent legislation in this country, no plaintiff may be awarded exemplary or punitive damages for defamation[2].

    [2]See, eg, Defamation Act 2005 (NSW), s 37.

    The nature of the action

  3. The respondent ("Mrs Ibbett") brought an action in the District Court for damages occasioned by reason of the conduct at her house of two members of the NSW Police[3].

    [3]Established by the Police Act 1990 (NSW). See, generally, Jarratt v Commissioner of Police (NSW) (2005) 79 ALJR 1581; 221 ALR 95.

  4. The State was identified by…

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New South Wales v Ibbett [2006] HCA 57
Case
[2006] HCA 57
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the State of New South Wales against an award of damages made to Mrs Ibbett. The dispute arose from an assault and trespass committed by police officers against Mrs Ibbett. The core of the appeal concerned the appropriateness of awarding aggravated and exemplary damages against the State, given legislative changes that assigned the liability of police officers to the Crown.

The legal issues before the High Court were whether the recognition of an occupier's right to quiet enjoyment of land was a relevant consideration when assessing damages for trespass, and more significantly, whether an award of aggravated and exemplary damages against the Crown was permissible when the underlying torts were committed by police officers. This involved an examination of the impact of the *Law Reform (Vicarious Liability) Act 1983* (NSW) and the *Police Legislation Amendment (Civil Liability) Act 2003* (NSW) on the principles of vicarious liability and the availability of punitive damages against the State.

The High Court rejected the State's submissions, affirming the approach taken in similar cases where exemplary damages were awarded against public authorities for the misuse of coercive powers. The Court reasoned that the development of Crown liability in tort did not support limiting damages based on the financial means of individual miscreant officers. Furthermore, the legislative reforms did not mandate that damages against the State be determined solely by reference to what would be appropriate against the officers themselves, to the exclusion of broader considerations. The Court noted that the *Police Legislation Amendment (Civil Liability) Act 2003* was intended to require actions to be brought against the State instead of individual officers, without diminishing the plaintiff's rights of recovery.

The High Court dismissed the appeal with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GLEESON CJ, GUMMOW, KIRBY, HEYDON AND CRENNAN JJ
Nor was Priestley JA the first to take such an approach to an award of exemplary damages in respect of the misuse of coercive powers entrusted to public officials. In Peeters v Canada[52], the Federal Court of Appeal (Heald, MacGuigan and Linden JJA) upheld an award of $Can16,000 as "punitive" damages for an assault on the plaintiff, whilst in prison, committed by officers of the Correctional Service of Canada ("CSC"). After referring to the training given to CSC officers respecting the proper use of force on inmates, the Court remarked[53]:"The theory was excellent, but the CSC members clearly had not been trained to the point where reasonable restraint was second nature to them, as they should have been, as employees expected to use force. Instead, at the first temptation they succumbed to what the trial judge rightly called 'goon-squad machismo'."[52](1993) 108 DLR (4th) 471.[53](1993) 108 DLR (4th) 471 at 482.Conclusions respecting vicarious responsibility and exemplary damages The approach taken in cases such as Adams and Peeters should be accepted. It is supported by the observations of Lord Devlin and Lord Hutton to which reference has been made earlier in these reasons. The submissions by counsel for the State should be rejected. First, the course of development over the last two and a half centuries of the law respecting Crown liability in tort does not support attention to the financial means of the miscreant public officers as a significant and limiting determinant of the quantum of liability. Reference has been made earlier in these reasons to what was said on the subject in The Commonwealth v Mewett[54].[54](1997) 191 CLR 471 at 543. Secondly, the New South Wales legislative reforms do not require, in obedience to a "master's tort" theory, determination solely of what would be an appropriate award of exemplary damages against the police officers to the exclusion of considerations affecting the State itself. The doctrine, associated in Australia with Enever v The King[55], which excepted the exercise of independent discretions from the legislative changes otherwise providing for the vicarious tort liability of the Crown, would have denied any award of exemplary or other damages against the State in the present case. The changes introduced by the 1983 Act rendered the State vicariously liable in tort, but s 9B, introduced by the 2003 Act, denies attribution of liability to the State in the present litigation simply by reference to a "master's tort" theory. The scheme of s 9B is to require persons in the position of Mrs Ibbett to sue only the State, and to do so "instead" of making a claim against the police officers.[55](1906) 3 CLR 969. There are several qualifications to this new legal regime. The State is not rendered vicariously liable for police torts if it otherwise would not be so liable (s 9E(a)). The State may deny vicarious liability (s 9B(3)), something it did not do in this case. Further, there is preserved the possibility that the State may claim damages, contribution or indemnity against police officers (s 9E(b)). This too did not occur here. However, a principal object of the 2003 Act was to require the bringing of actions against the State instead of against the police officers concerned and to do so without affecting the rights of recovery by plaintiffs.

Ratio Decidendi

Legal Principle Established

Established by: GLEESON CJ, GUMMOW, KIRBY, HEYDON AND CRENNAN JJ

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