Sittrop v State of Victoria (Ruling)
[2024] VCC 448
•23 April 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-22-04212
| MIRJAM SITTROP | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDGE: | HER HONOUR JUDGE ROBERTSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 January 2024 and 25 March 2024 | |
DATE OF RULING: | 23 April 2024 | |
CASE MAY BE CITED AS: | Sittrop v State of Victoria (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 448 | |
RULING
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Subject:PRACTICE AND PROCEDURE – PLEADINGS – STRIKE-OUT APPLICATION
Catchwords: Pleadings – strike out application – parties – State of Victoria – police tort claims – tort – negligence – police officer exposed to traumatic events – alleged harassment – psychiatric injury – whether duty of care owed by one police officer to another police officer in performance of duties – scope of duty – breach – liability of the State of Victoria – vicarious liability of State for tortious conduct of police officers
Legislation Cited: Crown Proceedings Act 1958, s23; Victoria Police Act 2013, s72, s73, s74 and s75; Police Regulations Act 1958; County Court Civil Procedure Rules 2018, r23.02; Civil Procedure Act 2010; Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Ahamed v Coles Supermarkets Australia Pty Ltd [2023] VSCA 239; New South Wales v Fahy (2007) 232 CLR 486; Kozarov v State of Victoria (2022) 273 CLR 115; Uber Australia Pty Ltd v Andrianakis (2020) 61 VR 580; Hoh v Frosthollow Pty Ltd [2014] VSC 77; Trkulja v Google LLC (2018) 263 CLR 149; Wheelahan v City of Casey (No 12) [2013] VSC 316; SMEC Australia Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd (No 2) [2011] VSC 492; Wyong Shire Council v Shirt (1980) 146 CLR 40; Caridi v State of Victoria (Ruling) [2023] VCC 1708; Sullivan v Moody (2001) 207 CLR 562; Hill v Chief Constable of West Yorkshire [1989] AC 53; Van Colle v Chief Constable of the Hertfordshire Police [2009] 1 AC 225; Gesah v Ross [2013] VSC 165; Smith v State of Victoria (2018) 56 VR 332; Stuart v Kirkland-Veenstra (2009) 237 CLR 215; Caparo Industries Plc v Dickman [1990] 2 AC 605; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; Zalewski v Turcarolo [1995] 2 VR 562; State of Victoria v Richards (2010) 27 VR 343; State of New South Wales v Briggs (2016) 95 NSWLR 467; Sills v State of New South Wales [2019] NSWCA 4; McDonald v State of New South Wales [2001] NSWCA 303; Enever v the King (1906) 3 CLR 969; Little v Commonwealth (1947) 75 CLR 94; Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626; Sheikh v Chief Constable of Greater Manchester Police [1990] 1 QB 637; Attorney-General for New South Wales v Perpetual Trustee Co (Limited) (1955) 92 CLR 113; Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; Hunter and New England Local Health District v McKenna (2014) 253 CLR 270; Perre v Apand Pty Ltd (1999) 198 CLR 180; Bird v DP (a pseudonym) [2023] HCATrans 145 (20 October 2023)
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T P Tobin SC with Ms G Angelowitsch | Mr Wolf Legal |
| For the Defendant | Ms R N Annesley KC with Ms L Burke | Wisewould Mahoney |
Table of Contents
Introduction.......................................................................................................................................... 1
Procedural history............................................................................................................................... 1
The Application.................................................................................................................................... 2
Summary of the Plaintiff’s allegations.............................................................................................. 4
Issues and submissions..................................................................................................................... 5
Plaintiff’s submissions................................................................................................................... 5
The State’s submissions............................................................................................................... 6
Legal principles.................................................................................................................................... 7
Strike-out application..................................................................................................................... 7
Requirements for proper pleadings............................................................................................. 8
Liability for “police torts”..................................................................................................................... 9
Liability of negligence.................................................................................................................. 11
Analysis.............................................................................................................................................. 16
Necessity to replead the Proposed Amended Statement of Claim...................................... 22
Conclusion......................................................................................................................................... 25
HER HONOUR:
Introduction
1The plaintiff is a sworn member of Victoria Police, who was previously stationed at Rosebud Police Station. She claims to have suffered psychiatric injuries as a result of “police torts” for which the State of Victoria (“the State”) is liable pursuant to s74 of the Victoria Police Act 2013 (“the VPA”). She claims her injuries occurred as a result of the negligent acts and omissions of six superior officers (Sergeant Edwina Neale, Senior Sergeant Steve Wood, Acting Sergeant Stephen Drew, Sergeant Michelle Bradley, Superintendent Adrian White and Inspector Janene Denton) and the Chief Commissioner of Victoria Police acting through other police officers and in particular the superior officers, while undertaking their duties as police officers between April 2012 and September 2018.
Procedural history
2The proceeding was originally commenced by Writ and Statement of Claim filed in the Supreme Court of Victoria on 13 April 2022 against the entity known as State of Victoria (Victoria Police) ACN 446 481 493 (“the original defendant”).
3A Defence was filed on 31 May 2022 which raised, among other things, the application of s23(1)(b) of the Crown Proceedings Act 1958 (“the CPA”) and the application of s72 and s74 of the VPA.
4On 20 June 2022, the original defendant served a request for further and better particulars on the plaintiff.
5On 14 September 2022, an order was made by the Supreme Court of Victoria transferring the proceeding to the County Court of Victoria.
6The requested Further and Better Particulars were provided on 20 January 2023.
7On 10 February 2023, the plaintiff was granted leave to file an amended statement of claim.
8The Amended Statement of Claim was filed on 28 February 2023. The plaintiff continued to sue the original defendant (then still named as State of Victoria (Victoria Police) ACN 446 481 493) on the basis of s72, s74 and s75 of the VPA. She claimed the alleged incidents of negligent conduct relied upon, constituted torts which were “police torts” for the purposes of the VPA and that the defendant was liable pursuant to s74 of the VPA. She also claimed the Chief Commissioner was vicariously liable for the negligent conduct of the six superior officers.
9An Amended Defence (in response to the Amended Statement of Claim dated 28 February 2023) (“Amended Defence”) was filed on 21 June 2023. Paragraph 1 of the Amended Defence admitted that, by operation of s72 and s74 of the VPA, the defendant may be made liable in respect of a “police tort claim”, as defined in s73(1) of the VPA. However, to engage the operation of s72 and s74, the plaintiff was required to establish a “police tort” as defined in s72(1). The defendant alleged any liability in respect of “police torts” was limited to the circumstances set out in s74 of the VPA. Further, it pleaded that police members under the Police Regulations Act 1958 (“the PRA”), and police officers under the VPA, are not Crown servants, agents or employees, and consequently the defendant was not liable, pursuant to s23(1)(b) of the CPA, in respect of any torts committed by them in the performance, or purported performance, of their duties.
10Pursuant to orders made by his Honour Judge Pillay on 2 December 2022, the proceeding was set down for trial before a judge sitting alone on 30 January 2024.
The Application
11Shortly prior to the date listed for trial, by application commenced by summons dated 10 January 2024 (“the Application”), the defendant sought orders pursuant to r23.02 of the County Court Civil Procedure Rules 2018 to strike out various paragraphs of the Amended Statement of Claim as follows:
“1.That paragraphs 2(c), 3, 3A, 3B, 4, 5, 6, 7, 8 and 9 of the Amended Statement of Claim dated 28 February 2023 be struck out in accordance with Rule 23.02 of the County Court Civil Procedure Rules 2018 on the following grounds:
i.Police members under the Police Regulations Act 1958 (Vic), and police officers under the Victoria Police Act 2013 (Vic), are not employees of the Defendant. They are sworn officers and holders of public office under statute They are consequently not Crown servants, agents or independent contractors within the meaning of section 23(1)(b) of the Crown Proceedings Act 1958 (Vic). The Defendant may not be made liable pursuant to section 23(1)(b) of the Crown Proceedings Act 1958 (Vic).
2.That paragraphs 3A, 4, 5, 6, 7 and 8 of the Amended Statement of Claim dated 28 February 2023 be struck out in accordance with Rule 23.02 of the County Court Civil Procedure Rules 2018 on the following grounds:
i.The pleadings do not comply with the Victoria Police Act 2013 in describing the alleged duty, and alleged breach of that duty, of a particular police officer (pursuant to section 72(1)).
3.That paragraphs 3(b), 3B, 7 and 9 of the Amended Statement of Claim dated 28 February 2023 be struck out in accordance with Rule 23.02 of the County Court Civil Procedure Rules 2018 on the following grounds:
i.A claim is made for damages for psychiatric injury for breach of contract, which is not an available remedy.
4.The Plaintiff pay the Defendant’s costs of and associated with this application.
5. Such further order as the court deems fit.”
12The Application was opposed by the plaintiff.
13The Application came before the Court on 24 January 2024.
14At the conclusion of the Application, orders were made, among other things, substituting the State of Victoria (“the State”) as defendant,[1] requiring the plaintiff to serve on the State a draft proposed further amended statement of claim and, if necessary, providing for the parties to appear before the Court again to re-agitate the issue of the adequacy of any further proposed amended statement of claim.
[1]As to the appropriate defendant see Ahamed v Coles Supermarkets Australia Pty Ltd [2023] VSCA 239 at paragraph [5]
15The plaintiff prepared a further version of a Proposed Amended Statement of Claim dated 5 February 2024 (“PASOC”) which it served on the plaintiff. It is now the third version which has been produced.
16The defendant maintained its objection to the pleading and sought to strike out various paragraphs of it, or, alternatively, to have the plaintiff replead.
17On 25 March 2024, I heard further argument from the parties about the adequacy of the PASOC.
Summary of the Plaintiff’s allegations
18By the PASOC, the plaintiff pleads that six superior police officers, and the Chief Commissioner of Victoria Police acting through other police officers and in particular the superior officers, owed her a broad and general duty:
“… to take reasonable care to avoid exposing her to unnecessary risk of injury by providing her with a safe place to perform her duties and proper and safe plant and appliances to undertake her duties and a proper and safe system for conducting their work and efficient supervision of such duties.”[2]
[2] PASOC, paragraph [3A]
19She alleges the duties of care were breached by the six superior officers, variously, by the allocation of insufficient resources to the Rosebud Police Station; the exposure of the plaintiff to traumatic circumstances without provision of adequate counselling or assistance; mocking, chiding and calling the plaintiff a “scaredy-cat” for not attending a welfare check and, instead, waiting for back-up, and by re-rostering the plaintiff to work at the Rosebud Police Station after she returned from a period of personal leave, and in circumstances where there was an alleged failure to discuss the plaintiff’s concerns regarding the jeopardy of her mental health.
20She alleges the Chief Commissioner was vicariously liable for the acts or omissions of the superior officers towards the plaintiff, which acts or omissions constituted a “police tort” pursuant to s72 of the VPA.
21Further, an allegation is made that the plaintiff’s injuries were caused by breaches of duty by the Chief Commissioner and/or the superior officers resulting in injury, loss and damage to the plaintiff.
22The PASOC identifies that the State has been sued pursuant to s72, s74 and s75 of the VPA, and that by reason of clause 25 of Schedule 6 of the VPA, the State is vicariously liable for police torts prior to 1 July 2013.
23The only defendant in the proceeding is the State. The Chief Commissioner, nor Victoria Police, are named defendants. Determination of the application requires consideration of the State’s liability for the actions of police officers, including under statute. It also requires consideration of the basis for the types of claim the plaintiff seeks to make.
Issues and submissions
Plaintiff’s submissions
24The plaintiff submitted the PASOC should be allowed to proceed and that the essential aspects of the alleged causes of action had been pleaded sufficiently.
25The plaintiff accepted, based on the decision in New South Wales v Fahy[3] that, save for exceptional circumstances, police officers, when making operational decisions, do not owe a duty of care to members of the public to prevent them from harm. It was submitted the decisions made by the six superior officers, which were said to found liability, were not operational decisions. Further, no question of a duty of care owed to the public arose. The duty of care alleged was a duty owed by one police officer to another.
[3] (2007) 232 CLR 486 20 (“Fahy”)
26The plaintiff submitted the duty of care was an established category of duty. Alternatively, it was a novel duty of care which arose, among other things, because of the relationship between the Chief Commissioner and each of the six superior officers, and the level of control the Chief Commissioner exercised over police officers, which included an ability to give directions pursuant to the PRA. It was contended the duty of care said to be owed was akin to that owed by an employer to an employee and the situation which arose for consideration was similar to the situation in Kozarov v State of Victoria,[4] where the work the plaintiff did, exposed her to traumatic events.
[4] (2022) 273 CLR 115
27The plaintiff further submitted that, even if the pleading was deficient, rather than dismissing the plaintiff’s claim, the appropriate course was for the plaintiff to be ordered to file and serve a further proposed amended statement of claim addressing the deficiencies.
The State’s submissions
28The State submitted the proposed amendments to the PASOC should not be allowed. There was no basis for imposition of a duty of care in favour of the plaintiff on any of the six superior officers. The plaintiff was not an employee of the defendant. She was the holder of a public office. A duty of care owed by one police member to another was not an established duty of care and the salient features of the relationship between one police officer to another were not such as to give rise to a novel duty of care.
29Further, there could be no basis for the imposition of a duty of care in favour of the plaintiff against the Chief Commissioner or for a finding of vicarious liability.
30In any event, liability on the part of the State could only be found in respect of “police torts”. Such liability could only arise if a tort had been committed by a police officer in the performance or purported performance of their duties. That was not this case.
31Even if, as a matter of law, a novel duty of care was capable of being pleaded against the six superior officers, or the Chief Commissioner, such that a “police tort” arose, the PASOC, as currently pleaded, should not be permitted to stand because it failed to properly plead and/or inadequately pleaded the “police torts” relied upon; it failed to identify a proper basis for a finding of vicarious liability; it was otherwise embarrassing and lacked material facts; it continued to rely on a duty of care akin to that of an employer and employee, without pleading the necessary facts required to establish the salient features of the relationship between the plaintiff and each of the six superior officers and the Chief Commissioner that gave rise to a novel duty of care, and it failed to properly articulate and plead the necessary elements of the alleged causes of action.
Legal principles
Strike-out application
32Rule 23.02 provides:
“Striking out pleading
Where an indorsement of claim on a writ or originating motion or a pleading or any part of an indorsement of claim or pleading—
(a)does not disclose a cause of action or defence;
(b)is scandalous, frivolous or vexatious;
(c)may prejudice, embarrass or delay the fair trial of the proceeding; or
(d)is otherwise an abuse of the process of the Court—
the Court may order that the whole or part of the indorsement or pleading be struck out or amended.”
33In Uber Australia Pty Ltd v Andrianakis,[5] the Court of Appeal[6] identified that the test in r23.02 requires the defendant to establish that:
“… it would be futile to allow the statement of claim to go forward, because it raises a claim that has no real prospect of success in the sense of being ‘fanciful’. … .”[7]
[5] (2020) 61 VR 580
[6] Consisting of Niall, Hargrave and Emerton JJA
[7] At paragraph [35]
34The power in r23.02 is a discretionary power and should only be exercised if the claim is so manifestly hopeless that a trial would be a futility.
35If there is a contentious or debatable point of law raised by a pleading, it is usually inappropriate for the point to be decided on a strike-out application, particularly where the answer may depend upon the factual context. The case must be a very clear case, which will not be altered by the evidence, before a statement of claim will be struck out.
36The power to strike out a pleading should be exercised with caution, particularly where the boundaries of the law underlying the pleaded causes of action are developing.[8] It follows that if a case involves the application of clear principles of law to the facts in a novel context, it would be inappropriate to strike out a Statement of Claim.[9]
[8] Hoh & Ors v Frosthollow Pty Ltd & Ors [2014] VSC 77 (“Hoh”) at paragraph [20]
[9] Trkulja v Google LLC (2018) 263 CLR 149
Requirements for proper pleadings
37Pleadings perform essential functions in a trial. They enable the issues in dispute to be identified; they enable the other party to know the case they are required to meet,[10] and they also enable the precise basis for a claim to be identified so that, in giving effect to the objects of the Civil Procedure Act 2010, baseless claims can be brought to an end without the time and expense of a trial.[11] A pleading which does not fulfil these functions does not promote the objects of the Civil Procedure Act.
[10] Wheelahan & Anor v City of Casey & Ors (No 12) [2013] VSC 316 (“Wheelahan”) at paragraph [25]
[11] Hoh at paragraph [19]
38For those reasons pleadings must state all material facts required to establish the essential elements of a cause or causes of action relied upon and avoid all facts which are not material.[12] If a pleading does not contain all the necessary material facts, it is defective. So, too, a pleading which contains extraneous and unnecessary facts can be defective.[13]
[12] Wheelahan at paragraph [25(c)]
[13]SMEC Australia Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd (No 2) [2011] VSC 492 at paragraph [8]
39Pleading conclusions is only permissible if the underlying facts leading to the conclusion are also pleaded.[14]
[14] Wheelahan at paragraph [25(g)]-[25(h)]
40Where multiple causes of action are pleaded or the same cause of action is pleaded against multiple defendants, each cause of action needs to be separately articulated so that the defendant understands the case it is required to meet and the basis upon which liability is sought to be imposed.
41Where negligence is alleged, the factors giving rise to any alleged duty of care should be specifically pleaded; particularly where a novel duty of care is concerned. There is also a need to formulate the content or scope of any duty of care with precision to articulate what discharge of the duty would require. It is necessary to articulate prospectively[15] in the pleading, what the reasonable person “would have foreseen” and “would do by way of response to the risk”.[16] This may be particularly so where psychiatric, as opposed to physical, injury is alleged.
[15] Fahy at paragraph [125]
[16] Wyong Shire Council v Shirt (1980) 146 CLR 40 (“Shirt”) at 47
42Articulation of the scope of the duty of care is also required to properly assess any allegations of breach. Because of the nature of police duties, police officers will be exposed to traumatic events and may be directed to participate in duties which are particularly difficult or risky. The plaintiff needs to clearly identify how it is said each of the defendants failed to discharge their duties, having regard to the scope of duties pleaded. Police officers may be subject to “conflicting responsibilities” which, as Mason J stated in Wyong Shire Council v Shirt,[17] must be considered in determining whether a breach of duty has been made out.
[17] Shirt at 47
43Further, where derivative or vicarious liability is sought to be imposed, the plaintiff must plead the facts giving rise to such liability.
Liability for “police torts”
44Sections 72, 73 and 74 of the VPA provide as follows.
“72 What is a police tort?
(1)For the purposes of this Act, a police tort is a tort committed by a police officer or protective services officer in the performance or purported performance of the officer’s duties.
…
73What is a police tort claim?
(1)For the purposes of this Act, a police tort claim is a claim for damages or other relief in respect of an alleged police tort.
(2)A police tort claim includes—
(a)an action for damages under Part III of the Wrongs Act 1958 in respect of an alleged police tort; and
(b)a counterclaim for damages or other relief in respect of an alleged police tort committed by a police officer or protective services officer that is made by a person in a legal proceeding brought by the officer against that person; and
(c)any other prescribed action, claim or proceeding in respect of an alleged police tort.
(3)To avoid doubt, subsection (2) does not limit what is a police tort claim.
74Liability of the State for police torts
(1)Subject to this section, the State is liable for a police tort.
(2)Subject to subsection (5), the State is not liable for a police tort if the State establishes on a police tort claim that the conduct giving rise to the police tort was serious and wilful misconduct by the police officer or protective services officer who committed the police tort.
(3)If a police officer or protective services officer commits a police tort for which the State is liable, the officer—
(a)is not liable to any person for the police tort; and
(b)is not liable to indemnify, or to pay any contribution to, the State in respect of the liability incurred by the State.
(4)Subject to subsection (5), the State is not liable for a tort committed by a police officer or protective services officer that is not a police tort.
(5)Subsections (2) and (4) do not apply to a claim brought in reliance on Part XIII of the Wrongs Act 1958.”
45For a “police tort” to arise, there must first be a tort committed by a police officer or protective services officer in the performance, or purported performance, of the officer’s duties.
Liability in negligence
46Where negligence is the tort relied upon as founding the “police tort”, to succeed in her claim, the plaintiff would need to establish that a duty of care was owed to her, which was breached, resulting in the plaintiff suffering injury loss and damage.
47In Victoria, liability has been extended for alleged “police torts” in only a limited number of cases. Usually, the conduct giving rise to liability has arisen out of operational decisions made by police officers and in situations where a police officer is said to have owed a duty of care to a member of the public.
48In Caridi v State of Victoria (Ruling),[18] his Honour Judge Purcell helpfully undertook an extensive analysis of when liability has been imposed. He referred to the decisions in Fahy, Sullivan v Moody; Thompson v Connon;[19] Hill v Chief Constable of West Yorkshire;[20] Van Colle v Chief Constable of the Hertfordshire Police;[21] Gesah v Ross & Ors[22] and Smith v State of Victoria.[23]
[18] [2023] VCC 1708
[19] (2001) 207 CLR 562 (“Sullivan”)
[20] [1989] AC 53 (“Hill”)
[21] [2009] 1 AC 225 (“Van Colle”)
[22] [2013] VSC 165 (“Gesah”)
[23] (2018) 56 VR 332 (“Smith”)
49Both Hill and Van Colle were decisions of the House of Lords in England. In both cases, the House of Lords decided that, in the absence of special circumstances, police officers do not owe a duty of care to members of the public when investigating crime.[24] Referring to the immunity provided to police officers which had previously been found, the House of Lords identified this had been justified on grounds of public policy. The same public policy reasons have not been accepted by the High Court of Australia as part of the common law of Australia.[25] Hill and Van Colle were decided utilising the three-stage duty of care test enunciated in Caparo Industries Plc v Dickman[26] and subsequently accepted and applied in English courts.[27] That test, including the requirement of proximity of relationship for imposition of a duty of care, was rejected by the High Court of Australia in favour of the “multi-factorial” or “salient features” approach.[28] Hill and Van Colle are consequently of limited assistance in determining when a duty of care arises in an Australian context.
[24] Hill at page 63 (per Lord Keith of Kinkel)
[25]Stuart v Kirkland-Veenstra (2009) 237 CLR 215 at page 256, paragraph [120] (per Gummow, Hayne and Heydon JJ)
[26] [1990] 2 AC 605 (“Caparo”)
[27] Caparo per Lord Bridge at pages 617-618. See also Van Colle at paragraph [42] per Lord Bingham.
[28]Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 (“Graham Barclay Oysters”) at 624-627, paragraphs [236]-[238] (per Kirby J)
50Sullivan decided that medical workers, social workers and departmental officers involved in investigating and reporting allegations of child sexual abuse, did not owe a duty of care to persons who were suspected of being the sources of harm. The imposition of a duty of care in those circumstances would have been inconsistent with the objects of the Community Welfare Act 1972 (SA), which treated the interests of children as paramount. The existence of the duty of care was rejected because it was seen to be inconsistent with the applicable statutory scheme. While the case highlights the necessity for any common law duty of care to be coherent with existing legislative obligations, it does not otherwise advance the resolution of whether a duty of care ought to be imposed in respect of the acts and omissions of police officers towards other police officers.
51Fahy involved a claim by a member of police against the Police Service of New South Wales alleging negligence for failing to provide a safe system of work for police officers. The police member claimed damages in respect of psychiatric injuries she developed following attendance upon an armed robbery scene where a victim was being treated for stab wounds. The litigation in Fahy was conducted on the basis that it was admitted the Police Service of New South Wales owed the plaintiff a duty to take reasonable care for her safety, and that the duty of care embraced a duty to institute and maintain a safe system of work.[29] There was no necessity for the High Court of Australia to consider the circumstances in which such a duty might be said to arise. The question of whether a duty of care ought to be imposed in respect of the acts and omissions of police officers towards other police officers, and in what circumstances, was not the subject of the litigation.
[29] Fahy at paragraph [4]
52In Gesah, a prisoner was transferred to a maximum-security prison following murder charges laid on the basis of DNA evidence. The charges were later withdrawn. The plaintiff sought damages for psychiatric injuries alleging breaches of duties of care owed by the Victoria Police Forensic Science Centre and homicide squad detectives. Beach J granted summary judgment to the defendant.
53In granting judgment, his Honour noted the plaintiff’s reliance on Zalewski & Anor v Turcarolo,[30] in which police officers who fired at a psychiatrically-unwell plaintiff were found to be negligent. He also referred to State ofVictoria v Richards,[31] in which summary judgment was refused in circumstances where a bystander sued for damages because police had used capsicum spray in a small shop. His Honour considered those cases involved the infliction of physical injury in one-on-one situations, rather than the existence of a duty of care in relation to the investigation of criminal activity.[32]
[30] [1995] 2 VR 562
[31] (2010) 27 VR 343
[32] Gesah at paragraph [40]
54Beach J considered in the absence of exceptional circumstances, police officers do not owe a duty of care to an individual to investigate a complaint of actual or threatened criminal conduct. This was because the imposition of such a duty would be inconsistent with the performance of a police officer’s public duty to enforce the criminal law, which requires them to exercise discretion in prioritising the use of investigative resources in the public interest.[33]
[33] Gesah at paragraph [41]
55In Smith, J Dixon J considered an application for summary dismissal of proceedings, alternatively a strike-out of allegations of a common law duty of care said to have been owed by police to child victims of family violence, because of the police officers’ response to complaints of family violence. His Honour noted that the court was being asked to consider the imposition of a novel duty of care. In those circumstances, J Dixon J considered the proper approach was to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by reference to the salient features affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm.[34]
[34] Smith at paragraph [91]
56J Dixon J determined that the Victorian authorities demonstrated that police in Victoria do not enjoy immunity from suit. A duty of care to investigate criminal conduct will not arise other than in exceptional circumstances and police may be found to owe a duty of care where the salient features’ test is satisfied.[35]
[35] Smith at paragraph [123]
57The conclusion based on these authorities is that, in Victoria, police officers do not enjoy immunity from suit. They may, in exceptional circumstances, be liable to third parties. Usually this has been for operational decisions made. There is no authority for the proposition that a duty of care automatically arises as an established category between one police officer and another. Nor are there decided cases in Victoria which consider the circumstances in which there may be liability in negligence for harm suffered by a police officer because of the acts or omissions of another police officer in performance, or purported performance, of their duties.
58In New South Wales, there is some authority that a duty of care may be owed by the State to police officers. There have been cases where psychiatric injury was suffered following incidents or exposure to traumatic events in the course of service or performance of a police officer’s duties.
59In State of New South Wales v Briggs,[36] a police officer suffered psychological injury due to his exposure to traumatic events in the course of his service. He commenced a “work injury damages claim” under Part 5 of the Workers Compensation Act 1987 (NSW) against the State of New South Wales, claiming damages for breach of duty in connection with his employment. He alleged his injury was caused by the tortious acts of the Commissioner of Police and his officers, for which the State was vicariously liable. It was not in issue that there was an obligation to take reasonable care to avoid foreseeable risks of injury arising from the plaintiff’s service in the New South Wales police force. The plaintiff’s claim failed because of his failure to identify a system of work which was not, but allegedly should have been, in place.
[36] (2016) 95 NSWLR 467 (“Briggs”)
60Leeming JA referred to the duty of care owed by the State to police officers and accepted that it was equivalent to that owed by an employer to employees, save for two qualifications. First, that the State was in effect a deemed employer and vicariously liable for tortious conduct by police officers, and second that the duty of care alleged ꟷ namely that the New South Wales police force had an obligation to take reasonable care to avoid foreseeable risks of injury to the plaintiff[37] ꟷ was only equivalent to that between an employer and an employee at a high level of generality. As his Honour also identified, the outcome of the appeal did not ultimately turn upon the issue of the existence of a duty of care.
[37] Briggs at paragraph [44]
61McColl JA did not agree with Lemming JA’s reasons with respect to duty of care, but also noted that the outcome of the appeal did not turn on that issue.
62In Sills v New South Wales,[38] the plaintiff, a police officer, brought a claim against the State of New South Wales, seeking damages pursuant to s5 of the Crown Proceedings Act 1988. In the course of performing her duties, the plaintiff had been exposed to numerous traumatic incidents and claimed, as a result, to have suffered a psychiatric injury. She claimed the State owed her a non-delegable duty of care to avoid exposing her to a foreseeable risk of injury, including the risk of psychiatric injury. She did not challenge the adequacy of the system of work, nor argue that it was negligent not to have had a better system of work. She contended the breach arose because there was a failure of the police force to properly implement its system of work in relation to its dealings with the officer, who was known to suffer from post-traumatic stress disorder, and because there was a failure to respond to the knowledge that the officer had accumulated exposure to multiple incidents within a short period.
[38][2019] NSWCA 4 (“Sills”) (per Payne JA, Sackville and Simpson AJJA)
63There is also some authority in New South Wales that any duty of care owed by the State is in no way distinguishable from that owed by an employer to its employees.[39]
[39] McDonald, Wilson & Shepherd v State of New South Wales [2001] NSWCA 303 at paragraph [48]
64As to vicarious liability, where police officers have engaged in tortious conduct, it has been consistently held, starting with Enever v the King,[40] that the State is not vicariously liable for tortious conduct of police officers. While that principle has been criticised,[41] until it is re-considered by the High Court, it remains established as part of the common law of Australia.
[40](1906) 3 CLR 969 (“Enever”) (see summary by Dixon J in Little v Commonwealth (1947) 75 CLR 94 at 114)
[41]See Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626 at 537 (per Gibbs CJ)
Analysis
65The amendments I have considered for the purposes of the strike-out application are those set out in the PASOC.
66The exercise I am required to undertake when considering r23.02, is to consider whether it would be futile to allow the Statement of Claim to go forward because it raises a claim that has no real prospect of success in the sense of being “fanciful”.
67For the following reasons, I am not satisfied that the proceeding has no real prospect of success.
68To establish negligence, the plaintiff must establish that the six superior officers or the Chief Commissioner committed a “police tort”, that is, a tort in the performance, or purported performance, of their duties. This requires the plaintiff to allege what acts constitute the torts said to give rise to the “police torts” for the purposes of s72 of the VPA. Because the plaintiff’s claim, as articulated, is based on negligence, a necessary first step in that exercise is for the plaintiff to plead the required facts necessary to establish that a duty of care was owed to her as a police officer by another police officer and/or the Chief Commissioner, and to identify, with particularity, the scope of that duty of care.
69The allegation with respect to duty of care is made in paragraph 3A of the PASOC. It provides:
“At all relevant times:
(a) the Chief Commissioner of Victoria Police acting through other Police officers, and in particular the superior officers;
(b) the superior officers;
owed a duty to the plaintiff to take reasonable care to avoid exposing her to unnecessary risk of injury, including by providing her with a safe place to perform her duties and proper and safe plant and appliances to undertake her duties and a proper and safe system for conducting their work and efficient supervision of such duties.”
70The plaintiff initially submitted that a duty of care arises automatically as an incident of the relationship between the plaintiff and the other police officers. It was contended it was a duty which is akin to the duty between employer and employee. At the hearing on 24 January 2024, however, Mr Tobin SC accepted that police officers are not employees. Rather, they are sworn members of the police force and as such, no employment relationship arises. Consequently, there is no established category of relationship between one police officer and another, which has traditionally been held by the courts to contain features which give rise to a duty of care.
71As identified already, the authorities indicate that a duty of care has been imposed on police officers in only a limited number of novel cases. These have largely been restricted to situations involving conduct by police officers in relation to people in their custody and to “exceptional” situations in which the police officer had engaged in positive dangerous behaviour that created a situation of risk to third parties. Additionally, while there have been cases where liability in negligence has been considered in the context of acts or omissions of one police officer against another while performing their duties, notably the cases referred to from New South Wales, in my view, those authorities are not determinative of whether, and when, a duty of care might be owed by one police officer to another to prevent harm in the performance, or purported performance, of their duties.
72First, the New South Wales’ authorities are not binding on this court.
73Second, in each of the New South Wales’ decisions, and in Fahy, a duty of care was either assumed or not argued[42] and argument centred on the scope of such duties and whether they had been breached.
[42] See for example Fahy at paragraph [4]; Briggs; Sills
74Third, in cases where duties of care were assumed, such as the New South Wales’ authorities, different legislation circumscribed the relationships of the police officers to that under consideration in this instance.
75Fourth, even if a duty of care of some type could arise, it would not automatically follow that the scope of duty would be indistinguishable from that owed by an employer to its employees. This is because police officers are not employees of the Crown.[43] It is “trite law” that police officers are not employed in the usual legal sense of that word.[44] There is a “fundamental difference” between the service of a constable and the domestic relationship of master and servant.[45]Police officers are in the service of the Crown and the two concepts are distinct.
[43] Enever
[44] Sheikh v Chief Constable of Greater Manchester Police [1990] 1 QB 637 at paragraph [15]
[45]Attorney-General for New South Wales v Perpetual Trustee Co (Limited) (1955) 92 CLR 113 at 122 and 129
76In Victoria, if the plaintiff’s claim is not covered by any accepted category of liability, which in my view it is not, whether a claim based on negligence could succeed would depend on the plaintiff establishing a novel duty of care. If a duty of care were to arise which required one police officer to take reasonable care for another, it would be imposed because of the relationship between the parties and an analysis of the salient features of their relationship. This would include an examination of the obligations between the parties and any applicable statutory provisions,[46] such as the VPA and the PRA,[47] coherence of the law, control, foreseeability, degree of harm, vulnerability, and legal policy. The assessment requires consideration of the facts bearing on the relationship between the plaintiff, the other superior police officers and the Chief Commissioner, and analysis of the salient features of those relationships.[48]
[46]Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 at paragraphs [21]-[22]; Fahy at paragraph [18]; Hunter and New England Local Health District v McKenna; Hunter and New England Local Health District v Simon (2014) 253 CLR 270 at paragraphs [20] and [22]
[47]The Workplace Injury Rehabilitation and Compensation Act 2013 may also be relevant, particularly as a member of Victoria Police is deemed to be a “worker” for the purposes of clause 14(1)(h) of Schedule 1, Part 1 of the Workplace Injury Rehabilitation and Compensation Act 2013.
[48]Perre v Apand Pty Ltd (1999) 198 CLR 180 at 198, paragraph [27] (per Gleeson CJ at 253); paragraph [198] at 254; paragraph [201] (per Gummow J at 302); paragraph [333] (per Hayne J at 326); paragraph [406] (per Callinan J); Graham Barclay Oysters at 597-8, paragraph [149] (per Gummow and Hayne JJ at 624-5); paragraphs [236]-[237] (per Kirby J)
77To determine whether a case based on negligence has no real prospect of success in the sense that it is fanciful, in this case the statutory framework which underpins the relationships between the plaintiff, the Chief Commissioner and the six superior officers, is of central relevance. The police force is a hierarchical and disciplined organisation. The plaintiff has taken an oath or affirmation of office.[49] She has the functions of a constable at common law,[50] as well as those conferred by statute.[51] She is a public officer charged with discretions and responsibilities in the execution of an independent legal duty.
[49] VPA, s50
[50] VPA, s51(a)
[51] VPA, s52(b)
78Like the plaintiff, each of the Chief Commissioner and the six superior officers are also in the service of the Crown. They are not employees of the Victorian police force or the State. For the same reasons, they, too, have functions of constables at common law, as well as obligations conferred by statute, and they exercise independent legal duties.
79Subject to the direction of the Minister under s10 of the VPA, the Chief Commissioner is responsible for the management and control of Victoria Police.[52] He has power to issue instructions to other police officers and members of the Victorian police force for the general administration of Victoria Police and for the effective and efficient conduct of the operations of Victoria Police.[53]
[52] VPA, 16(1)(b)
[53] VPA, s60(1)
80These matters, and the totality of the legislative scheme governing relations between police officers, is important to determine the likelihood of the imposition of a duty of care.
81Similarly, other salient features of the relationship between the plaintiff, the Chief Commissioner and the six superior officers will be relevant, including coherence of the law, control, foreseeability, degree of harm, vulnerability and legal policy.
82Having considered the authorities, I am of the view that it is conceivable that no duty of care may be owed by one police officer to another in the performance of their duties, because the imposition of such a duty would be inconsistent with other police duties and responsibilities and a variety of public policy considerations. Ultimately, however, the existence or otherwise of a duty of care of the type alleged is not a question I need to decide.
83In circumstances where this application comes before the Court by way of a summons seeking orders pursuant to r23.02 of the County Court Civil Procedure Rules to strike out the plaintiff’s claim, and there is no evidence before the Court from which it is possible to determine, finally, whether a duty of care does in fact arise, I am not satisfied that a duty of care could not arise. It is at least arguable. The issue of whether any “police tort” has been committed must be determined once all the relevant facts have been established at trial.
84I have reached this conclusion for several reasons.
85First, as J Dixon J noted in Smith:
“Australian common law has not affirmatively recognised that a police officer can never owe a duty of care. Whether a police officer does owe a duty of care in the terms identified in the amended statement of claim must necessarily be determined on a close analysis of the facts bearing on the relationship between the plaintiffs and the putative tortfeasor for whom the defendant is responsible. … .”[54]
[54] Smith at paragraph [170]
86Ultimately, in Smith, his Honour disallowed the summary dismissal application because the defendant had not persuaded him that no duty of care could arise on the assumed facts. He did so because:
“… the task involved in the resolution of this proceeding is fact rich and fact intensive. … .”[55]
[55] Smith at paragraph [171]
87That is also the situation in this case.
88Second, even giving due weight to the statutory context and the desire to maintain the independence of police officers in the performance of their duties (whether that be operational decisions or otherwise), nothing submitted leads to the inevitable conclusion that the plaintiff’s cause of action involves inconsistency between any duty to take reasonable steps to take care of the plaintiff and the other duties of police officers.
89Third, while it is unnecessary for me to decide, it seems incorrect to contend, based on the development of the law in relation to immunity of police against civil action by third parties, that there could never be liability in negligence for the acts or omissions of police officers when psychological harm is occasioned to other police officers.
90For each of these reasons I will disallow the application for summary dismissal and will not dismiss the plaintiff’s claims against the six superior officers and the Chief Commissioner (in his capacity as a police member), at least insofar as the claim seeks to allege direct tortious conduct on the part of those police officers.
91It remains unclear how the Chief Commissioner is said to be vicariously liable. The pleading is unclear about who the tortfeasor was for whom the Chief Commissioner is said to be vicariously liable, and what it was they did in the course of performance of their duties that gave rise to the alleged tortious conduct or vicarious liability of the Chief Commissioner. If the six superior officers were acting in the performance of their duties, how is vicarious liability relevant? If they were not acting in the performance of their duties, no police tort would arise and there would be no basis for imposition of liability on the part of the State. The State can only be liable for the conduct of a police officer when it is not serious and wilful misconduct, and it is a police tort. How, in those circumstances, is it alleged the Chief Commissioner is vicariously liable? How does liability to the State follow? If, as the plaintiff contended in argument, the decisions made in this case were not operational decisions, or decisions made in the performance of the police officers’ duties, such that a duty of care might potentially arise, in what capacity were the six superior officers acting? How does the plaintiff maintain that the State can nevertheless still be liable?
92Any claim of vicarious liability on the part of the Chief Commissioner, in my view, as currently pleaded, cannot succeed. According to the plain words of the VPA, there is no statutory basis for the State to be liable for the vicarious liability of the Chief Commissioner. The only basis for liability of the State is if a “police tort” has been committed as defined in the VPA. If there is a “police tort”, the State will be liable, but not otherwise.
93To the extent that the position with respect to vicarious liability might be different in respect of tortious acts committed prior to 1 July 2013,[56] by reason of clause 25 of Schedule 6 of the VPA, the basis for that claim should be pleaded.
[56] PASOC at paragraph [1(b)]
Necessity to replead the Proposed Amended Statement of Claim
94In my view, as currently pleaded, the PASOC is confusing and difficult to follow.
95First, the pleading of each of the alleged novel duties of care said to be owed by each of the six police officers and the Chief Commissioner are conflated and insufficiently articulated. Because this is not a case involving an established relationship, such as an employer/employee relationship, the plaintiff needs to clearly articulate, and plead, each of the salient features of the relationship between the plaintiff and other police officers necessary to establish the novel duty of care alleged. She has not done so.
96Mr Tobin SC submitted that the duty arises because of control. If this is the intention of the pleading it is not clear. How is it said, for instance, that the six superior officers each had control over the plaintiff? What facts give rise to that conclusion? If control is said to have a legislative basis, that needs to be articulated.
97Second, the PASOC contains no identification of the scope of each of the alleged duties of care. This needs to be rectified if the claim is to proceed.
98Third, insofar as the plaintiff makes allegations that the alleged duties of care were breached, such allegations should be pleaded separately from allegations of duty rather than collectively, as is currently done in paragraph 3C. Further, the plaintiff is required to plead the facts giving rise to a conclusion of breach in a logical and coherent way in relation to each of the six superior officers, rather than simply pleading the conclusion.
99In my view, as it stands, much of the Statement of Claim should properly be struck out.
100Paragraph 3A pleads a duty akin to that owed by an employer to an employee. As I have observed, this is not a case where that type of established duty automatically arises. It is necessary for the plaintiff to properly articulate the duty. Further, the allegation made in paragraph 3A of a:
“… duty to the plaintiff to take reasonable care to avoid exposing her to unnecessary risk of injury, including by providing her with a safe place to perform her duties and proper and safe plant and appliances to undertake her duties … .”
is so broad as to be meaningless, particularly when there are only limited facts pleaded.
101Paragraph 3B fails to clearly identify the premises at Rosebud and the premises at Sorrento, or the specific periods when the plaintiff was stationed at each. No particulars are given in relation to staff absences or shortages.
102Paragraph 3C conflates concepts of duty and breach. The material facts by which it is alleged Superintendent White and/or Inspector Denton are said to have been “aware of the extreme staff absences and shortages” are not pleaded.
103The allegations of breach are unclear. The pleading makes references to matters such as the allocation of resources at the Rosebud Police Station by Superintendent White and Inspector Denton; failure to arrange counselling or assistance for the plaintiff following attendance at traumatic events; adjustments to the plaintiff’s rosters and deliberately intimidatory, exclusionary or humiliating behaviour. However, because the duty pleaded is so broad, it is virtually meaningless and may be of little assistance.[57] The scope of the duties of care have not been pleaded. Resultingly, it is unclear how it is said any of the six superior officers, or the Chief Commissioner, failed to discharge the alleged duties of care and, resultingly, how the State is liable.
[57] As to which see Leeming JA in Briggs at paragraph [44]
104Paragraph 3H does not plead how it is alleged Sergeant Neale was negligent.
105Similar complaints can be made about the allegations in paragraphs 3L, 3P, 3V, 3X, 3AA, 3AE, 3AG and 4.
106The pleas are more difficult to comprehend, given the breadth of the duty of care pleaded in paragraph 3A.
107There is no pleading, other than a general reference to s72, s74 and s75 of the VPA, detailing how the State is said to be liable for either the acts and omissions of the six superior officers or the Chief Commissioner. This needs to be rectified.
108Similarly, as presently pleaded, I consider there is no basis for a claim of vicarious liability to be made against the Chief Commissioner. Enever decided that there are certain independent statutory office holders for whose torts no government body or public authority has vicarious liability.[58]
[58]There are recent divergent views in Victoria, albeit in cases involving sexual abuse, as to whether vicarious liability is confined only to cases involving a relationship with employment. In Bird v DP (a pseudonym) [2023] HCATrans 145 (20 October 2023) special leave to appeal to the High Court of Australia was granted on 20 October 2023. The appeal was heard on 14 March 2024 and judgment is pending.
109Overall, the allegations made in the PASOC are hard to understand. Further and better particulars may clarify some of the issues, but they are not a substitute for proper pleadings. All the elements of the postulated causes of action need to be pleaded with clarity and need to be sufficiently particularised. This is especially the case, where, as here, serious allegations are being made about the conduct of police officers and the way they have, or have not, performed their public duties and where the injuries alleged to have been suffered are psychiatric, rather than physical.
Conclusion
110I will disallow the State’s application to strike out the plaintiff’s PASOC in its entirety. However, I will strike out paragraphs 1(b), 3A, 3B, 3C, 3H, 3L, 3P, 3V, 3X, 3AA, 3AE, 3AG and 4. I will grant the plaintiff leave to prepare a further version of the Amended Statement of Claim.
111In my view, given that the proposed pleading is currently the third proposed version, it would be appropriate for the plaintiff to consider formulating an entirely new and clean document which addresses all the elements of the causes of action she seeks to bring, as well as the matters raised in this ruling and in the course of argument.
112I will hear argument with respect to costs.
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