Johnston v State of New South Wales

1. [1]

   HIS HONOUR: On 9 October 2019, the plaintiff filed a notice of motion seeking to appeal a judgment of Harrison AsJ, which involves a question of the vicarious liability of the Crown (“the first defendant”) for a tort allegedly committed by a police officer (“the second defendant”) against the plaintiff. The relevant background to the matter is as follows.

2. [2]

   On 14 September 2018, the plaintiff filed a statement of claim in the Supreme Court of New South Wales, alleging that on 6 April 2010, whilst she was on duty at Parramatta Children’s Court as a police officer of the New South Wales Police Force training as a police prosecutor, the second defendant, who was a Senior Constable and police prosecutor also on duty, assaulted her. The plaintiff alleged that, while she was standing in an office and facing a table, the second defendant approached her from behind and deliberately pushed his body against hers, with sufficient force to require her to brace herself against the table to avoid falling, and pushed his erect penis against her buttocks.

3. [3]

   The second defendant denied the allegation. In an interview with police on 20 September 2010, he stated:

4. [4]

   The plaintiff pleaded that the second defendant was liable in tort, being assault and battery, for damages. The plaintiff also pleaded that the second defendant was in the service of the first defendant pursuant to s 6 of the Law Reform (Vicarious Liability) Act 1983 (NSW) (“the Act”), and that pursuant to s 8 of the Act, the first defendant was vicariously liable for the tort committed by the second defendant. The plaintiff sought damages from the first defendant for her past and future economic loss.

Relevant provisions of the Law Reform (Vicarious Liability) Act 1983 (NSW)

1. [5]

   The long title of the Act is: “An Act with respect to the vicarious liability of masters and of the Crown in respect of the commission of certain torts”. The relevant sections of the Act are as follows:

The notice of motion

1. [6]

   On 13 February 2019, the plaintiff filed a notice of motion seeking orders that:

2. [7]

   Further orders were sought to the effect that, if the court granted the first order, leave be granted to the plaintiff to discontinue proceedings against the second defendant and that those proceedings be dismissed with an order that the first defendant pay the costs on the motion of the plaintiff and second defendant, or that a Bullock or Sanderson order be made for those costs.

3. [8]

   On 20 May 2019, the first defendant filed an amended defence, in which it was admitted the plaintiff was on duty on 6 April 2010 and that she had submitted a complaint that she had been indecently assaulted on that date, but otherwise denied the allegation.

4. [9]

   The plaintiff’s motion was heard by Harrison AsJ on 10 May 2019. Her Honour handed down judgment on 11 September 2019, determining that, pursuant to s 9C of the Act, the Crown would not be vicariously liable, if it were established that the tortious acts were committed by the second defendant: Johnston v State of New South Wales [2019] NSWSC 1206.

5. [10]

   On 9 October 2019, the plaintiff filed a notice of motion seeking the following orders:

6. [11]

   The motion was heard by me on 25 February 2020. At the outset, the plaintiff sought leave to file an amended notice of motion in court. That application was not opposed by the first defendant, and I granted that leave. The amended notice of motion sought three additional orders, styled 2A, 2B and 2C. However, further into the hearing, the plaintiff abandoned orders 2B and 2C and effectively sought to amend order 2, which concerned costs, and ask for an order that costs be reserved. Accordingly, the only other order that was sought by the plaintiff was as follows:

The relevant principles

1. [12]

   The parties agreed that the relevant principles were stated in two cases, being Prior v State of New South Wales [1998] NSWCA 289 and Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; [2016] HCA 37, the latter being the most relevant case.

2. [13]

   Prince Alfred College v ADC concerned the question of whether proceedings could be brought against a school by a former boarder pupil who had been sexually assaulted by a boarding housemaster. The assaults had occurred in 1962, when the plaintiff was 12 years old. One of the questions for the Court was whether the school could be vicariously liable for the sexual assaults.

3. [14]

   The plurality (French CJ, Kiefel, Bell, Keane and Nettle JJ) stated the relevant principles applicable to the determination of whether an employer is vicariously liable for the tortious acts of its employee, as follows:

4. [15]

   The factual analysis by the Court of Appeal in Prior v State of New South Wales was of importance in Harrison AsJ’s judgment, making it appropriate to relate the facts and judgments in some detail.

5. [16]

   In Prior, the Court of Appeal heard an appeal from a decision of the trial judge to withdraw from the jury a claim for damages for assault and false imprisonment. The appellant had been the passenger in a car that was stopped by police. A police officer breath-tested the driver, with the result being negative. The appellant’s evidence was that the officer then asked the driver to open the boot of the car. The appellant, who was in the passenger seat, said to the officer, “You’re a big man aren’t you?” The officer came around to the appellant’s door, opened it, leaned in and said: “Yes, I’m a bigger man than you”, then delivered heavy punches to the appellant’s face with a closed fist. Following the punches, the police officer undid the appellant’s seat belt, dragged him out of the car and threw him in the gutter. The officer then straddled the appellant and continued to punch him to the face, rendering him semi-conscious. When the appellant regained consciousness, he found himself handcuffed. He then had his handcuffs removed, and he was taken to hospital for treatment by other police who had arrived at the scene.

6. [17]

   Evidence was also given by the driver, whose account varied in some respects. He said that the appellant made the comment to the officer following the officer shining a torch in the appellant’s eyes and refusing to remove it. He said that the officer tried to pull the appellant out of the car but was prevented by the appellant’s seat belt being attached, so he punched him once in the face and then reached in and unhooked the seat belt. A second officer assisted the removal of the appellant from the vehicle. As soon as he was out, the police officers pushed him to the ground, where the first officer punched him multiple times. The driver called out “that’s enough”, but the first officer continued to punch the appellant. A statement made the same day by the driver was tendered by the respondent, which varied in some respects with the driver’s evidence but, consistent with his evidence, included the account that the officer struck the appellant to the face once while he was in the car, when he could not disengage the seat belt.

7. [18]

   The Crown did not call any evidence, and Sheller JA noted, at 4, that the appellant was not cross-examined to suggest that his recollection of events was in any way incorrect.

8. [19]

   Meagher JA, at 3, noted that the Crown submitted that:

9. [20]

   The trial judge referred to s 8(1) of the Act and concluded that it was open to the jury to conclude that that the torts were committed in purported performance of a function, that being the function of the arrest of the appellant. Sheller JA, at 6, noted that the trial judge had said:

10. [21]

    However, the trial judge entered a verdict by direction for the respondent, having concluded that there was no evidence upon which the jury, properly instructed, could reasonably find that the officer was acting within the course of his service of the Crown. The trial judge held that:

11. [22]

    Sheller JA, Handley JA agreeing, upheld the appeal, finding that if the jury accepted the driver’s account, it was open to the jury to conclude that the appellant was assaulted for the purpose of being arrested. His Honour, at 7-8, said:

12. [23]

    Earlier in his judgment, Sheller JA, at 7, drew an example of an assault and arrest by a police officer that would not be committed in the service of the Crown, as follows:

13. [24]

    Meagher JA noted, at 2-3, that the trial judge had correctly identified three factual elements that are to be established pursuant to the Act, in order for the Crown to be held vicariously liable of the tortious acts of a police officer. Firstly, that the person in the service of the Crown committed a tort; secondly, that the person was actually or purportedly performing a ‘function’; and, thirdly, that the ‘function’ was in the course of, or incidental to, the person’s service with the Crown. The trial judge had found there was sufficient evidence of the first and second elements to go to the jury (the second being that, at the relevant time, the officer was making the arrest). In relation to the trial judge’s conclusion as to the third factual element, Meagher JA said, at 3:

The judgment of Harrison AsJ

1. [25]

   Her Honour noted that the plaintiff submitted that under the circumstances of the case, it was not only practicable to make an initial determination, but “essential” for the Court to do so.

2. [26]

   The first defendant submitted to her Honour that, pursuant to s 9C(b) of the Act, it was “impracticable in the circumstances” to make a determination as to whether the Crown was vicariously liable before determining whether the tort had been committed but, if the Court determined otherwise, it was clear on the relevant authorities that the Crown was not vicariously liable.

3. [27]

   As her Honour noted, at [25] of her judgment, the first defendant accepted that the effect of the opening words of s 8 of the Act was to reverse the common law rule that the State could not be liable for a person in its service. Her Honour accepted, at [30], that the common law as to vicarious liability was not reduced by the terms of the Act and therefore continued to apply.

4. [28]

   Her Honour noted that, pursuant to s 6 of the Act, the second defendant was “a person in the service of the Crown”. Her Honour accepted, at [66], that the reference in s 8 to “the performance or purported performance by the person of a function”, is to the function of a police officer, so that the question became whether, assuming the tort was proved, it was committed in the performance or purported performance by the second defendant of a function that comes within s 8(1)(a) of the Act. Her Honour, at [67], put it in these terms:

5. [29]

   Her Honour found, at [68], that on the day of the alleged assault, the second defendant was performing his role as a police prosecutor, and was therefore acting in the performance, or purported performance, of his functions as a police officer.

6. [30]

   However, her Honour concluded, at [80], that the third element for vicarious liability was not made out:

The parties’ submissions

1. [31]

   In written and oral submissions, the first defendant contended that there was a preliminary issue concerning the nature of the review that was sought by the plaintiff of Harrison AsJ’s judgment.

2. [32]

   The first defendant submitted that, although the first order sought a “review”, r 49.4 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) provides for an “appeal” which, pursuant to s 75A(5) of the Supreme Court Act 1970 (NSW), is by way of a re-hearing. Accordingly, the plaintiff must demonstrate error in her Honour’s judgment. If no fresh evidence is called, the appeal is limited in accordance with the following observations of Cross J in Do Carmo v Ford Excavations Pty Ltd [1981] 1 NSWLR 409 at 420:

3. [33]

   In written submissions in reply, the plaintiff accepted the first defendant’s characterisation, that is, that it is appealing the decision at first instance.

4. [34]

   The plaintiff sought orders to the effect that her Honour’s decision be set aside and that an initial determination as to the vicarious liability of the first defendant not be made, as it is impracticable. The plaintiff submitted that her Honour erred in characterising the acts of the second defendant as not being in the performance or purported performance of his function in the service of the Crown.

5. [35]

   The first defendant submits that the plaintiff has failed to identify the alleged errors on which it relies. Further, the first defendant submits that these should have been pleaded and were not, although the first defendant does not take issue on that point. I accept, however, that although the plaintiff’s submissions could have been more succinct, the essence of the plaintiff’s submission is that her Honour misapplied the relevant principles to the facts. The first defendant also submits that the plaintiff has an insurmountable difficulty in adopting on the appeal the opposite of what it contended at first instance, namely, that an initial determination is impracticable.

6. [36]

   The first defendant submits that, although its stance at first instance was that it was impracticable to make an initial determination, its alternative submission that the Crown was not vicariously liable was available on the evidence and should stand. If, however, this Court overturned that decision, then this Court should find that it is impracticable to make an initial determination.

Consideration

1. [37]

   A step in her Honour’s reasoning in coming to the conclusion that she did was to disregard the second defendant’s account in response to the allegation of the tortious behaviour, other than acknowledging that he denied it. Her Honour said, at [73]:

2. [38]

   The plaintiff’s account is circumstantial in nature as to why the second defendant came over to where she was at the table. The “leering” the plaintiff allegedly observed before and immediately after the physical contact is consistent with him having approached her at the table specifically and exclusively for the purpose of sexually assaulting her.

3. [39]

   The brief account by the second defendant that appears in her Honour’s judgment is an admission that, firstly, he had physical contact with the plaintiff at the time and place where she alleged it occurred. Since her Honour accepted the plaintiff’s version for the purposes of the s 9C determination, that admission did not relevantly add to the material before her. However, the admission that he did so whilst moving from one part of the office to another as part of his work duties, namely, “to get a law book of some kind related to the hearing I was running”, had the effect of further aligning his work duties with the “occasion” of the assault. Although he denied he sexually assaulted the plaintiff, on the scant material before her Honour, it would be open to the court at the final hearing to accept elements of the second defendant’s account and still find for the plaintiff. If the court accepted the plaintiff’s account but nevertheless was satisfied that the second defendant sexually assaulted her as he passed her at the table en route to get the book for his prosecution, the gap between his “function” and the tortious act dissolves further, on the basis of “the relevant approach” which is set out in Prince Alfred College v ADC at [81].

4. [40]

   Her Honour did not further elaborate on why she thought it was appropriate to disregard the second defendant’s account for the purposes of an initial determination. The terms of s 9C do not expressly or, in my view, impliedly disallow the court from having regard to material other than the plaintiff’s account or allegation, the premise for the court’s determination being “if it were established that the tort was committed by the police officer” (emphasis added).

5. [41]

   The court is not to make an “initial determination” on the question of the vicarious liability of the Crown if it is “impracticable” to do so. An obvious situation that would enliven that proviso is if the court concludes that it is unclear on the material before it whether the alleged tortious act, if proved, was committed in the service of the Crown. In that circumstance, it would be practicable to leave that question to the hearing, when evidence may be led from the parties on that question.

6. [42]

   It is a situation that is not dissimilar to the state of the evidence on the “no prima facie case” issue that arose in Prior v State of New South Wales. As Sheller JA noted, at 6, it would have been open to the jury to prefer the driver’s version of events over the appellant’s evidence, as to the number and sequence of punches and the releasing of the seatbelt by the officer, thus affording sufficient evidence of the third element for the matter to be left with the jury.

7. [43]

   Harrison AsJ noted the parallels in this matter with some of the features to be identified in “the relevant approach” in Prince Alfred College v ADC. At [77], her Honour said:

8. [44]

   In considering whether the alleged tortious acts were committed in the course of, or incident to, the second defendant’s service to the Crown, her Honour had recourse to Prior v State of New South Wales, and concluded that they were not. Her Honour stated, at [80]:

9. [45]

   In my view, this analysis placed undue emphasis on the factual circumstances of Prior. Although Prior concerned the application of principle to a question of the vicarious liability of the State for a tortious act of a police officer in the context of the Act, it is of limited assistance in a case with this factual matrix, which is closer to cases concerning an abuse of trust or authority placed by an employer in an employee, such as those canvassed in Prince Alfred College v ADC. Indeed, it is not dissimilar to the example provided at [80] of Prince Alfred College, of a criminal act committed by an employee which was facilitated by the position in which the employment placed them vis-à-vis the victim.

Conclusion

1. [46]

   I have come to the conclusion that her Honour’s decision should be set aside. However, for the reasons I have expressed, it is impracticable to make an initial determination as to the vicarious liability of the first defendant. That decision should wait until the Court has the benefit of being presented with evidence and making relevant findings of fact as to what precisely occurred in the incident, in order to determine whether the assault, if proved, satisfies the final element of s 8(1)(a) of the Act.

2. [47]

   Although the court was obliged to make an initial determination pursuant to s 9C of the Act, it did not oblige the plaintiff to argue in favour of it, much less that to do so was “essential”. It was open to the plaintiff to join with the first defendant in its first submission that it was impracticable to do so. Accordingly, I will order that the plaintiff be liable for the costs of the motion.

Orders

1. [48]

   I make the following orders: