Turner, John Raymond v Davis, Glen and Ors (Ruling)
[2012] VCC 1495
•19 October 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL DIVISION
Case No. CI-09-04223
| JOHN RAYMOND TURNER | Plaintiff |
| v | |
| GLEN DAVIS | First Defendant |
| and | |
| CRAIG McDONALD | Second Defendant |
| DUANE LUKE HAGGAR | Third Defendant |
| STATE OF VICTORIA | Fourth Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 October 2012 | |
DATE OF RULING: | 19 October 2012 | |
CASE MAY BE CITED AS: | Turner, John Raymond v Davis, Glen & Ors (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1495 | |
RULING
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SUBJECT – DAMAGES
CATCHWORDS – Proceeding seeking compensation for damages for alleged assault by a number of police officers – application to amend Statement of Claim to include unnamed “supervisory members” within Victoria Police – vicarious liability of fourth defendant – liability pursuant to s123 of the Police Regulation Act 1958, s23 Crown Proceedings Act 1958 – whether proposed amendments untenable – whether sufficient proximity to establish duty of care – whether alleged acts of “supervisory members” sufficiently proximate to be a cause of injury.
LEGISLATION CITED – Police Regulation Act 1958, s123; Crown Proceedings Act 1958, s23
CASES CITED – Costea v Morgan & Anor (VSC, 17 March 1998); Enever v R (1906) 3 CLR 969; Stockwell v State of Victoria [2001] VSC 497; Hall v Whatmore [1961] VR 225; Richards v State of Victoria [1969] VR 136; State of Victoria v Horvath (2002) 6 VR 326; Matthews v SPI Electricity Pty Ltd (No 2) [2011] VSC 168; Matthews v SPI Electricity Pty Ltd (No 6) [2012] VSC 70; Sullivan v Moody [2001] HCA 59; Thompson v Connon (2001) 207 CLR 562
RULING – The plaintiff’s application to amend the Statement of Claim fails.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D F Hore-Lacy SC | Vines Lawyers |
| For the First, Second and Third Defendants | Ms N E Hodgson | Russell Kennedy |
| For the Fourth Defendant | Mr C M Caleo SC with Mr R I Gipp | Victorian Government Solicitor |
HIS HONOUR:
1 This proceeding concerns a claim by the plaintiff for compensation for injury said to have occurred in the course of an assault on 10 September 2006 in a nightclub in Geelong. The first, second and third defendants are serving police officers who, according to the Writ, are alleged to have falsely imprisoned the plaintiff and assaulted him on the evening in question. The Statement of Claim alleges assault, false imprisonment and breach of duty of care by the police officers.
2 It is further alleged that the fourth defendant (“the State”), pursuant to s23 of the Crown Proceedings Act 1958, is vicariously liable for the conduct of the police officers. Alternatively, it is alleged the State is liable pursuant to the provisions of s123 of the Police Regulation Act 1958.
3 Initially, Christine Nixon, the Chief Commissioner of Police at the relevant time, was a defendant in the proceeding. By Order made 22 October 2010, the allegations against Ms Nixon were withdrawn, and she ceased to be a party to the proceeding.
4 By Summons issued 15 August 2012, the plaintiff sought leave to amend his Statement of Claim in accordance with the proposed Amended Statement of Claim marked “MGV1” and annexed to the affidavit of his solicitor, Michael Geoffrey Vines, sworn 26 July 2012.
5 The Summons also sought the issue of a subpoena for production to the Chief Commissioner of Police. By Order made 31 May 2012, his Honour Judge Misso set aside that subpoena.
6 In response, the State filed an affidavit of Daniel Philip McCredden sworn 2 October 2012.
7 I heard oral submissions from the parties on 5 October 2012 and received further written submissions from the plaintiff.
8 The plaintiff’s proposed Amended Statement of Claim seeks amendments to paragraphs 2, 11, 12, 13, 14 and 15 of the Statement of Claim. In addition, counsel for the plaintiff sought the addition of a further paragraph 14(f) as follows:
“(f)permitting the members to have contact with the plaintiff when they were aware or ought to have been aware that they had the propensity for violence, alternatively the propensity for violence when coming into contact with the public.”
9 Essentially, the amendments concern allegations in respect of unnamed “supervisory members” of the police force who, generally, are alleged to have failed to adequately:
· appraise
· supervise
· monitor
· train
the first, second and third defendants (referred to as ‘the members’) to ensure:
· they did not use more force than was necessary in dealing with the plaintiff;
· they did not cause the plaintiff unreasonable injury;
· they were temperamentally suited to engaging in public policing duties;
· they were not disposed to use excessive force or aggression when engaging in policing duties.
It is further alleged the supervisory members:
· failed to heed previous interactions between the members and the public;
· permitted the members to have contact with the public when they knew they had a propensity for violence.
10 The proposed Amended Statement of Claim does not particularise in any way:
· when the supervisory members were said to have acted or failed to act as alleged;
· who the supervisory members are;
· the precise manner in which it is alleged the supervisory members failed to take the action referred to, or took inappropriate action;
· the relationship between the acts or failure to act and the injury said to be suffered by the plaintiff.
11 Mr Hore-Lacy, for the plaintiff, in support of the proposed amendment, said that while the officers were not named, or the detail of the supervision and training was not set forth, that would be a matter for evidence to be provided at the trial. If there was no such evidence, then it would be a matter open to the defendants to apply to the trial judge to strike out the allegations. He referred to the decision in Costea v Morgan & Anor.[1] That case concerned a raid by various police officers at the plaintiff’s premises, in the course of which the plaintiff was shot in the head. The Statement of Claim made allegations against “planning police”, unnamed officers who were said to plan and authorise the raid, who were alleged to have breached their duty to take reasonable care for the safety of the plaintiff at the premises. A similar claim was made in relation to other police officers who took part in the raid. Beach J said:[2]
“… The duties of care relied upon by the plaintiff are not novel. If police officers plan and prepare a raid of the type in question they should reasonably foresee the risk of the likelihood of harm being caused to the occupants of the premises if the raid is not planned properly and carried out efficiently. As to the police officers who actually took part in the raid they too knew, or ought to have known, that if the raid was not carried out properly and efficiently there would be the risk of injury to the occupants of the premises. In my opinion the plaintiff's Statement of Claim establishes a reasonable foreseeability of risk and proximity between the police who planned and executed the raid and the plaintiff. As to the identity of the persons other than the first-named defendant who planned and executed the raid, the plaintiff should be able to provide such information to the defendants following discovery. In any event the defendants would be fully aware of the identity of such persons.
…
Finally, it is said that no material facts are pleaded which establish that the police officers in question were acting within the course and scope of their employment. The basis upon which the plaintiff makes that assertion is that the persons who planned the raid and carried it out were police officers acting as such. In my opinion it is unnecessary for the plaintiff at this stage of the proceeding to plead anything further in relation to the matter. Depending upon what the defendants raise in their defences it may be necessary for the plaintiff to elaborate upon the matter in his reply.”
[1]VSC – Beach J – 17 March 1998 – 4795/95, BC9801102
[2]Costea v Morgan & Anor (supra) at page 4
12 I note in that case, his Honour was of the view that there would be no difficulty identifying the officers who planned the raid, and those other officers who took part. That could be established after discovery. In the present proceeding, the supervisory members are not identified in any way. The pleading against them alleging failure to supervise, is wide and general, and in my view, there is little if any prospect of the State being able to identify the officers who are alleged to have supervised the first, second and third defendants in the manner described. Further, there is no particularisation as to what it is said they did or failed to do in the exercise of their supervisory duties which was causally related to the plaintiff’s injury.
13 Mr Hore-Lacy said the power of a police officer to act in the manner described was an independent power and not the exercise of a delegated authority.[3]
[3]Enever v R (1906) 3 CLR 969 at 977
14 He said that the proposed amendments to the Statement of Claim were analogous to the allegations made commonly in industrial accident cases, where an employer is said to be in breach of his duty to properly train, supervise and oversee a worker. Usually those allegations are not pleaded with precision as to what was actually said or done on a certain day, or the failure by the employer in that regard.
15 Mr Hore-Lacy said that it would be a matter for the evidence at trial to disclose details as to the officers who failed to take the steps suggested in the proposed Statement of Claim. The time to make a submission as to whether that cause of action was made out would be at the conclusion of the evidence, rather than at this point in time. It was thus unnecessary to name the various officers. He said that the fourth defendant would be able to identify the relevant officers through the records which Victoria Police were known to keep in detailed format. A relevant test he said was as to proximity. The supervisory members were sufficiently proximate in order for their acts or omissions to be a cause of the plaintiff’s injury or loss. He said that the Crown may be liable for the torts of its servants or agents pursuant to s23 of the Crown Proceedings Act. He referred to Stockwell v State of Victoria,[4] and the cases referred to therein, including Hall v Whatmore[5] and Richards v State of Victoria.[6] In Stockwell, the Court said:
“The plaintiff must plead facts which establish that an employee, agent or independent contractor of the Crown, acting in the course and scope of the employment or engagement, was liable to the plaintiff. In practical terms, this means proof of a cause of action against the employee, agent or independent contractor, and that the Crown is vicariously liable for the tort committed by the employee, agent or independent contractor. In my opinion, it is unnecessary to identify the employee, agent or independent contractor by name, but, nevertheless, it would be necessary to adduce evidence which would enable the Court to be satisfied of the existence of such a person or body, and that he or it was acting in the course and scope of the employment or engagement at the relevant time. Of course, the best evidence is the identification of the individual or body by name.”[7]
[4][2001] VSC 497
[5][1961] VR 225
[6][1969] VR 136
[7]Stockwell v State of Victoria (supra) at paragraph 21
16 But further:
“If the plaintiff fails to identify such a person by name, then the plaintiff assumes a heavy burden of persuading the Court that some unidentified employee, agent or independent contractor was responsible for the damage. Each case will depend upon its own circumstances. There may be sufficient evidence to enable the Court to consider the acts or omissions of the unidentified person. But if the Court is left in the position where it is not able to identify such a person by name or office, then the plaintiff may fail because he cannot prove the liability of a Crown employee, agent or independent contractor.”[8]
[8]Stockwell v State of Victoria (supra) at paragraph 23
17 Mr Hore-Lacy relied upon a learned article “Civil Litigation Against Police in Australia: Exploring Its Extent, Nature and Implications for Accountability”.[9] It referred to analysis in the United States and Australia of complaints brought against police officers, including various assaults, wrongful death, police pursuits, use of excessive force, forced entry raids, strip searches, pressure point holds, fabrication of evidence and the policing of demonstrations. In the civil actions that followed, the most common allegation, at least in the United States, was the failure of the police process and institution to properly train and supervise the officers involved.
[9]Janet Ransley, Jessica Anderson and Tim Prenzler – The Australian and New Zealand Journal of Criminology – Vol 40 – No. 2 – pp143-160.
18 On behalf of the State, Mr Caleo identified three grounds upon which the application to amend should be refused:
“First, in the proposed form, the amendments sought are embarrassing as they are internally inconsistent and do not disclose clearly what is alleged. In Victoria, the State cannot be directly liable in tort.[10] Further, the State cannot be vicariously liable for the torts of police officers committed in the exercise of their independent discretion.[11] The proposed pleading, however, alleges duties owed to the plaintiff by the State (paragraphs 12 and 13), duties breached by the State (paragraph 14) yet resulting liability on the part of the unnamed “supervisory members” (paragraph 15). It then separately alleges vicarious liability (paragraphs 16-18).
Secondly, irrespective of what the plaintiff is attempting to plead, the proposed causes of action have “no real prospect of success”, within the terms of s63 of the Civil Procedure Act 2010, and thus should not be permitted.[12] The proposed causes of action are fanciful, rather than realistic in respect of the allegations both of duty and causation. They are also statute barred…..
Thirdly, leave to amend should be refused in the exercise of the Court’s discretion because of the absence of any explanation for seeking to amend at this stage of the proceeding[13] and because of the general and unparticularised character of the allegations sought to be made. The McCredden affidavit provides details of the chronology of the proceeding. … The affidavit in support of the application provides no explanation for the lateness of this application nor deposes to any facts alleged to support the general and theoretical allegations of breach of duty.”[14]
[10]Richards v State of Victoria (supra); s23(1)(b) Crown Proceedings Act 1958
[11]State of Victoria v Horvath (2002) 6 VR 326 at paragraphs 42, 62; see also Matthews v SPI Electricity Pty Ltd (No 2) [2011] VSC 168 at paragraphs 28-37
[12]Matthews v SPI Electricity Pty Ltd (No 2) (supra); Matthews v SPI Electricity Pty Ltd (No 6) [2012] VSC 70 at paragraphs 33-34
[13]See Matthews v SPI Electricity Pty Ltd (No 6) (supra)
[14]Outline of submissions on behalf of the fourth defendant
19 In relation to his second point, Mr Caleo said there was insufficient basis upon the proposed pleading to show any relationship between the supervisory members and the plaintiff such as to found a duty of care. He said there was no effective causal link between the alleged acts or omission and the plaintiff’s injury. He referred to Sullivan v Moody,[15] where the High Court referred to the need for “close and direct relations” sufficient to show that the act complained of directly affected the person alleged to be bound to take care. That relationship needed to be sufficiently proximate to give rise to a duty of care.[16]
[15]Sullivan v Moody; Thompson v Connon (2001) 207 CLR 562
[16]See further State of Victoria & Ors v Richards [2010] VSCA 113
20 Further, Mr Caleo referred to State of Victoria v Horvath.[17] In that case, an officer who had supervisory control of a group of officers involved in a raid on a house, although found to be negligent, could not be said to have relevantly caused the damage complained of by the plaintiff. Mr Caleo observed that the supervisory officer in question was much more proximate to the incident, than is the case in respect of the supervisory officers in the present proceeding.
[17](supra) at paragraphs 68-72
21 It is clear the State cannot be directly liable in tort. In order to succeed, the plaintiff must establish that there has been some tort committed by its servants or agents in respect of whom the State is liable either pursuant to s23 of the Crown Proceedings Act 1958 or s123 of the Police Regulation Act 1958.[18] The amendment proposed in paragraphs 12 and 13, where it is alleged the State owed a duty, is misconceived. But that could be accommodated by amendment to plead that the supervisory members owed and then breached the relevant duty, with the State vicariously liable.
[18]Hall v Whatmore (supra) at 228-229
22 It is significant, in my view, that the proposed pleading relating to the supervisory members is general in the extreme. It does not plead who those members were, or even a category into which they could be said to fall. For example, it does not plead that they were the persons responsible for training the members at the Police Academy; or whether they were superior officers where the members were stationed at one or other point in time; or whether they played some supervisory role in respect of the actual alleged assault. I do not see any basis upon which the State, even with the detailed records kept in respect of officers while in the police force, could identify those supervisory members. As the article to which Mr Hore-Lacy referred points out, it may well be appropriate to plead in a civil proceeding such as this that the officers said to have a supervisory or training role owed a duty and that duty was breached by acts or omissions. But that does not get away from the principal that the pleading should be specific as to identity of the officers or the class of officers in question, details of the acts or omissions in the training or supervisory process, and the proximity of those acts or omissions such as to give rise to a duty of care and breach.
23 There is no detail as to when the alleged training and supervision was said to have occurred, or not occurred. There is nothing said as to when the members entered the force and when the alleged training and supervision was said to have occurred. It is a reasonable test as to proximity to pose the question: ‘would the defendants be able to identify the persons referred to so as to be able to obtain instructions to respond to the allegations set forth in the proposed Amended Statement of Claim?’ There is so little detail as to these supervisory members to lead me to the view that that could not be undertaken.
24 As Beach J said in Costea v Morgan & Anor,[19] it may not be necessary to specifically identify in a pleading the names of persons who may be said to be responsible by their negligent behaviour for the injury of a plaintiff, but his Honour implicitly said identification was necessary at some point, in that case, following discovery.
[19](supra)
25 Further, in Stockwell v State of Victoria,[20] the Court found it was not necessary to adduce evidence to enable a particular employee or agent to be identified. That, however, was qualified by the statement that the failure to identify a person by name creates a heavy burden in persuading the Court that the unidentified employee was responsible in damages. Clearly, the Court contemplated there must be sufficient evidence to enable the Court to identify the acts or omissions of a particular employee sufficient to found liability in the Crown. Again, in the present case, the situation is different. Not only are the supervisory members not identified, but the precise acts or omissions by which it is said the duty of care has been breached are not particularised in any way.
[20](supra)
26 I further accept the submissions of the State that there is an absence both in respect of proximity and foreseeability to found any duty of care. Further, I am not satisfied that there is a sufficient connection between the alleged acts or omissions of the supervisory members, and the occurrence of injury to the plaintiff. The link is extremely tenuous.
27 It is not a situation, in my view, where it is appropriate to leave further detail as to the identity of the members, and particularisation of the acts committed or failed to be committed, to evidence at trial. The defendants need to be in a position to obtain instructions to properly respond to the proposed amendments. It would indeed be trial by ambush to enable the evidence to be led and for the defendants then to attempt to respond to the allegations by seeking to identify the supervisory members and obtain instructions as to what part, if any, they played either in the training or supervision of the members, or in relation to the alleged assaults generally.
28 For all of these reasons, the proposed amendments to the Statement of Claim are untenable. I have not found it necessary to consider the issues raised by the State that the proposed amendment is out of time, and that there is no adequate explanation as to why the amendments are being made at a late stage in the proceeding.
29 The plaintiff’s application to amend the Statement of Claim fails.
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