Sittrop v State of Victoria (Ruling No 2)

[2024] VCC 1525

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:	HIS HONOUR JUDGE PILLAY
WHERE HELD:	Melbourne
DATE OF HEARING:	12 & 17 September 2024
DATE OF RULING:	7 October 2024
CASE MAY BE CITED AS:	Sittrop v State of Victoria (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2024] VCC 1525

RULING
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Subject:PRACTICE AND PROCEDURE

Catchwords:              Pleadings – strike out application – police tort claim – negligence – psychiatric injury – whether duty of care owed – scope of duty – breach of duty of care

Legislation Cited:      Victoria Police Act 2013; County Court Civil Procedure Rules 2008

Cases Cited:Sittrop v State of Victoria (Ruling) [2024] VCC 448; Wheelahan & Anor v City of Casey & Ors (No 12) [2013] VSC 316; State of New South Wales v Fahy (2007) 232 CLR 486; Sills v State of New South Wales [2019] NSWCA 4; State of New South Wales v Briggs (2016) 95 NSWLR 467; Malaspina& Ors v State of Victoria [2024] VSC 338; Enever v The King (1906) 3 CLR 969; Konrad v Victoria Police (1998) 152 ALR 132; Attorney-General for New South Wales v Perpetual Trustee Company Limited (1955) 92 CLR 113; Attorney-General for New South Wales v The Perpetual Trustee Company (Limited) & Ors (1952) 85 CLR 237; Kruisselbrink v Nationwide Maintenance Services Pty Ltd [2010] VSC 260

Ruling:  Application granted

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Tobin SC with Ms S Bailey	Mr Wolf Legal
For the Defendant	Mr S Smith KC with Ms L Burke	Wisewould Mahony

HIS HONOUR:

1This is an application by the defendant for:

(a)   orders requiring the plaintiff to amend her proposed statement of claim dated 16 September 2024 to properly plead her cause of action and to particularise that claim;

(b)   alternatively, that the proposed statement of claim be struck out in its entirety and the plaintiff be ordered to replead her claim.

2A similar application was made in respect of an earlier proposed statement of claim (the third version) of that document.  That application was heard by her Honour Judge Robertson of this court.[1]  She struck out that pleading and allowed the plaintiff to re-plead.  By reason of that most recent decision, the history of this matter does not need to be rehearsed in detail, but these reasons should be read in conjunction with that earlier decision.

[1]Sittrop v State of Victoria (Ruling) [2024] VCC 448 (“Sittrop”)

3For the reasons which follow, the plaintiff’s proposed statement of claim, dated 16 September 2024, does not disclose a cause of action. Leave to file that document is refused.  The plaintiff will, however, be given an opportunity to re-plead her case.

Brief factual context

4The plaintiff was a sworn police officer from 2012 to 2018.  She was stationed on the Mornington Peninsula at Rosebud and Sorrento police stations.  In her work, she was exposed to traumatic events such as suicides, unfortunate deaths, motor vehicle accidents and workplace incidents.  She wishes to bring a claim, broadly speaking, that Victoria Police ought to have identified and treated any psychiatric injury occasioned to her from these events in a more appropriate (reasonable) manner.  She further alleges that, when she complained, a fellow superior colleague treated her poorly and once again the response of Victoria Police (via her supervisor) was unreasonable.

Relevant procedural history

5Once again, this is set out in her Honour Judge Robertson’s recent ruling and does not need to be rehearsed.  Since her Honour ruled in late April 2024 striking out the pleading, the plaintiff delivered a further proposed amended statement of claim dated 21 May 2024.  In response, the defendant provided a further amended defence dated 1 August 2024.  That further amended defence took the same points as had been agitated before her Honour.  At their heart, the defendant alleged the duty of care as pleaded was novel and improperly pleaded, such that it did not disclose a cause of action.  There, matters stood, until the matter came on for trial on Thursday, 12 September 2024, before me.  On that day, the defendant re-agitated its application. The plaintiff conceded the proposed Amended Statement of Claim had difficulties and needed to be re-pleaded.  Orders were made requiring a further pleading and submissions of the defendant in response by the end of Court Friday, 13 September 2024.  The plaintiff delivered a further proposed pleading on the second day of trial, Friday 13 September 2024, to which the defendant similarly objected.  Unbidden and without leave of the Court, the plaintiff then took it upon herself to file a further proposed amended statement of claim, dated 16 September 2024.  It is that document that is in issue.  I shall title it “the Fifth PASOC”.

6The Fifth PASOC, in my view, suffers from fundamental flaws in the promulgation of the alleged duty owed to the plaintiff.  Issues of the material facts necessary to support that duty of care or further particularisation cannot remedy a pleading of a duty which does not disclose a cause of action.[2]

[2]Wheelahan & Anor v City of Casey & Ors (No 12) [2013] VSC 316 at paragraph [25(k)] (per John Dixon J)

7Particularly, this can be seen from the following paragraphs of the Fifth PASOC which set out the alleged duty:

“4.The Chief Commissioner was, pursuant to s13 of the Act, the senior ranking officer of Victoria Police.

5.    The Chief Commissioner by reason of s16 of the Act was:

(a) the Chief Constable and Chief Executive Officer of Victoria Police; and

(b) responsible for the management and control of Victoria Police.

6.The Chief Commissioner by reason of his ranking and capacities as referred to in paragraphs 4 and 5 thereof had the power:

(a) to classify the various duties that members of Victoria Police were required to perform;

(b) to allocate the duties to be carried out by such members;

(c) to issue instructions to member of Victoria Police for, and with respect to, the management and control of Victoria Police;

(d) instruct reviews in respect of the health and wellbeing of members of Victoria Police.

7.The Chief Commissioner by reason of the matters alleged in paragraphs 4-6 herein owed a duty to the ranks of Victoria Police akin to the duty of a common law employer in respect of ranks under his control, being a duty to take reasonable care for their safety by providing a safe place of work for them and proper and safe plant and appliances for their work and a proper and safe system of conducting their work and efficient supervision of such work.

8.   The Chief Commissioner in discharge of the general duty as referred to in paragraph 7 hereof owed a duty to the plaintiff to take such steps as to protect her insofar as was reasonable from suffering psychological injury as a consequence of undertaking her duties as a police officer and in particular to develop/have developed, implement, and enforce a safe system of work in respect of exposure to traumatic incidents and the anticipation of psychological response in respect thereto.

…

15.By reason of the matters aforesaid the Chief Commissioner in discharge of his duty as referred to in paragraph 7 owed a duty to police officers to develop, implement, and enforce a system of work, including processes and procedures to minimise the risk of psychological injury subsequent to attending critical incidents including:

(a) developing, implementing, maintaining and enforcing a system for reporting when officers were subjected to or exposed to incidents that had the potential to cause psychiatric injury or harm;

(b) ensuring that subsequent to critical incidents there was adequate investigation and intervention in respect of relevant police officers as to the effect of such critical incidents upon them;

(c) developing, maintaining and implementing mandatory psychological supervision of police officers exposed to incidents with the potential to cause psychiatric harm;

(d) identifying and implementing an appropriate critical incident review program for police officers;

(e) ensuring that relevant officers and in particular senior ranks to the plaintiff were instructed and required to maintain appropriate supervision and intervention in respect of officers who were subjected or exposed to critical incidents;

(f) ensuring that systems are in place and operational to assess minimum staffing levels required for each Police station and to ensure that each Police station is resourced with the minimum staffing levels and operates with at least their minimum staffing levels;

(g) developing, implementing, and maintaining a system to ensure that police officers are rotated in their roles with such regularity as to minimise the exposure to incidents with potential to cause psychiatric harm;

(h) developing, implementing and maintaining a system to ensure that police officers are provided with a minimum number of ‘correspondence’ shifts per each block worked.”

8I consider these paragraphs to be fundamentally flawed for the following reasons.

9First, as to the pleading at paragraph 7.  The plaintiff sought to rely on various decisions arising in New South Wales, but particularly that of State of New South Wales v Fahy.[3]  A police officer, while attending a confronting crime scene in the course of her duties, alleged her fellow officer had failed to stay with her as required.  This failure was said to have resulted in psychological harm to her.  She brought an action against the State.  In that case, the issue of duty had been conceded by the State of New South Wales and the case was conducted on the basis that the Crown or Commissioner of Police owed the respondent officer a duty of care that exists in an ordinary employment relationship.[4] This focused attention on scope and breach of duty.  This makes Fahy of limited use in illuminating the principles that guide the formulation of the duty of care owed to police officers by the Commissioner. That issue found expression in what their Honours Gummow and Hayne JJ (in the majority) considered to be the “logically anterior question” of whether the Chief Commissioner was “duty bound to establish a system of work” that would not have left the respondent officer in the position she was.[5]  Informing that question was a tension which arose because a sworn officer has statutory obligations which they could be ordered to perform, but which may put them in the path of death and destruction.[6]  Their Honours considered that an ordinary pleading simply describing the Crown as being vicariously liable, arguably needed to set out the statutory framework which would give rise to the duty.[7]  It would need to grapple with the obligations of a sworn officer and the control which could be exercised by the Commissioner. That tension did not need to be resolved in Fahy because the State admitted duty and so their Honours did not further explore the issue.  Nor has it been an issue in subsequent New South Wales decisions involving sworn police officers alleging psychiatric injury in the course of their employment.[8] However, that tension arises in this case because the State does not concede duty.  It is accepted that the alleged duty is a novel one, arising in part by reason of the introduction of the Victoria Police Act 2013 (“VPA”), which makes the State liable for a tort committed by a police officer in the performance or purported performance of the officer’s duties.[9]  Overall, then, I consider that Fahy and the line of New South Wales cases is of little support to the plaintiff’s case.

[3](2007) 232 CLR 486 (“Fahy”)

[4]Fahy at 489, paragraph [2] (per Gleeson CJ)

[5]Fahy at 499, paragraph [39]

[6]Fahy at 413, paragraph [27]

[7]Fahy at 419 , paragraph [53]

[8]For example, see Sills v State of New South Wales [2019] NSWCA 4 and State of New South Wales v Briggs (2016) 95 NSWLR 467

[9]Section 72 of the VPA and Malaspina& Ors v State of Victoria [2024] VSC 338 at paragraph [3] (per Keogh J)

10Second, the VPA sets out the way such liability may be brought home against the State. These provisions are 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.

(2)For the purposes of subsection (1), a tort includes—

(a)detrimental action (within the meaning of the Public Interest Disclosures Act 2012) taken by a police officer or protective services officer in reprisal for a disclosure to which Part 6 of that Act applies; and

(b)any other prescribed action or conduct.

(3)To avoid doubt, subsection (2) does not limit what is a tort for the purposes of subsection (1).

(4)For the purposes of subsection (1), it is irrelevant whether the tort is committed by the police officer or protective services officer alone or jointly or severally with any other person.

73   What 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..

74 Liability 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.”

11Those sections describe liability for tortious conduct by police and how it is sheeted home to the State.  It is clear that a sworn officer who claims damages for injuries sustained in the course of employment as a result of tortious conduct by another officer must satisfy these sections in order to render the State liable.

12The statute modified the position at common law.  Since Enever v The King,[10] the position has been that the appointment or swearing of an officer vests in them original authority.[11]  That means the body that appoints them could not be responsible for an officer’s individual acts of negligence or misfeasance.[12] That position was changed by the VPA obviously.

[10](1906) 3 CLR 969 (“Enever”)

[11]Enever at 977

[12]Enever at 976 (per Griffiths CJ)

13In this case, the plaintiff makes such claims.  First, that the Chief Commissioner did not have a reasonable system for dealing with psychiatric injuries of serving officers sustained in the course of duties.  Allied with that is whether the actions of supervising officers, when told of the plaintiff’s psychological difficulties, were unreasonable and breached the duty imposed.  To plead such claims, the plaintiff has to formulate a duty. 

14Turning back to paragraph 7 of the Fifth PASOC.  It is useful to repeat the reference the defendant took the Court to in its submissions as to why paragraph 7 is wrong in law.  Marshall J in Konrad v Victoria Police,[13] referred to Viscount Simonds’ judgment in Attorney-General New South Wales v Perpetual Trustee Company (Limited),[14] who stated, in respect of what police duties are:

“ ‘… neither changes in organisation nor the imposition of ever-increasing statutory duties have altered the fundamental character of the constable’s office. Today as in the past he is in common parlance described in terms which aptly define his legal position as ‘a police officer’, ‘an officer of justice’, ‘an officer of the peace’.

…

… there is a fundamental difference between the domestic relationship of servant and master and that of the holder of public office and the State which he is said to serve.’

His Honour Marshall J went on to quote from Kitto J, in Attorney-General of New South Wales v The Perpetual Trustee Company (Limited) & Ors,[15] who said:

“The matter may be summed up by saying that a member of the police force is under an obligation to perform duties of which some are statutory, some derive from the common law, and all are of a public character; and although a member of the police force is bound to obey the lawful orders of his superiors … , neither they nor the Crown itself can lawfully require him to abstain from performing the duties which the law imposes upon him with respect to the preservation of the peace and the apprehension of offenders, or can lawfully direct the detailed manner in which he shall perform those duties, and neither they nor the Crown itself … can be held liable for acts done by a constable in relation to the duties of his office.  These considerations seem to me sufficient in themselves to negative the existence of a master and servant relationship. … .”

[13](1998) 152 ALR 132 at 140 (“Konrad”)

[14](1955) 92 CLR 113, affirming the decision of the High Court in the matter (1952) 85 CLR 237

[15](1952) 85 CLR 237

15Marshall J said these matters showed:

“The decision of the Privy Council in Perpetual Trustees unambiguously provides that a member of a police force is not an employee of the Crown. In the High Court of Australia … the majority of the six justices sitting expressed views inconsistent with the proposition that police constables are employees of the Crown or State.”

16The plaintiff’s bland pleading that the duty owed is “akin” to that of an employer does not grapple with these issues.

17It is plain that the plaintiff’s pleading contains the following difficulties.  It seeks to equate an officer’s relationship to the Chief Commissioner as giving rise to a duty akin to an ordinary employer/employee relationship.  This is clearly incorrect.  There is no reference to the original authority vested in the officer,[16]  the statutory obligations imposed on their service,[17]  or the position occupied by the Chief Commissioner and how it relates to his management (control) of sworn officers.[18]

[16]Enever

[17]Konrad at [140]

[18]Fahy at paragraph [27]

18Further, the failure to engage with these matters makes the pleading so broad as to be meaningless.  In this, I join with Judge Robertson who made the same comment in relation to the version of the Statement of Claim before her.[19]

[19]Sittrop at paragraphs 100-110

19Lastly, the proposed duty seeks to draw in completely irrelevant matters to do with “safe plant and appliances”.  No breach of that component of the duty is alleged to and so its inclusion is entirely superfluous.

20In argument, it seems clear that the plaintiff is seeking to complain only in respect of what could be termed as “non-operational matters”.  Yet this distinction, which may be critical in defining the duty of care, is not clearly expressed.

21Turning, then, to paragraph 8 of the Fifth PASOC.  It can be seen immediately that the pleading makes no distinction between the operational and non-operational duties the plaintiff performed.  To draw in both types of work (operational and non-operational) requires the plaintiff to attempt to resolve the tension exposed in the decision of their Honours Gummow and Hayne JJ in Fahy. The pleading makes no such attempt. It similarly suffers from the same issues as identified above at paragraph 16 of this ruling.

22Turning to paragraph 15 of the Fifth PASOC.  It does seem to seek to limit the duty to take reasonable care to the “risk of psychological injury subsequent to … critical incidents”.  It is clearly focused on the content of the duty.  To this extent, it is unclear how it operates in conjunction with paragraphs 7 and 8, which draw in matters prior to critical incidents. Furthermore, the particulars are so vague as to be embarrassing.  For example, what constitutes the “minimum staffing levels” or a “minimum number of ‘correspondence shifts’”?  In areas of the law, with well-established categories of duty, such as industrial accidents, where particulars are more formulaic, this may be appropriate, as well-experienced litigants understand the thrust of the complaint against them.  In situations of an alleged novel duty, the particularisation assumes greater significance and ought be precise.  Here, they do not illuminate the content of the duty owed and how it has been breached.

23Coupled together, the significant formulation difficulties, at a conceptual level in paragraphs 7 and 8, together with the imprecise pleadings as to the practicalities filling the duty with content in paragraph 15, mean the defendant’s application to strike out the Fifth PASOC must succeed.

24While the defendant raised a further point in respect of whether the plaintiff went further in her pleadings than the grant of the serious injury certificate allows, this question does not, at this stage, need to be determined.  However, I would indicate my preliminary view is that the Fifth PASOC does appear to transgress the boundaries of the Certificate in a way which offends the principles set out by J Forrest J in Kruisselbrink v Nationwide Maintenance Services Pty Ltd.[20]

[20][2010] VSC 260

25I propose to strike out the pleading in its entirety in accordance with r23.02.  I will grant the plaintiff an opportunity to re-plead her case.

26The parties are to formulate orders in accordance with this ruling within five days.

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