Blacher, Liat; Freeman, Lauren --- "Police, Security Guards and Insufficient Liability" [2015] PrecedentAULA 59; (2015) 130 Precedent 18

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POLICE, SECURITY GUARDS AND INSUFFICIENT LIABILITY

By Liat Blacher and Lauren Freeman

This article addresses the current status of the laws relating to civil claims against police officers and security guards and contrasts these laws with the common law position that applies in other personal injury contexts.

The job of the police force is clearly one of great importance in today’s society. Police powers are as broad as their tasks. Sometimes circumstances arise whereby physical force is used and injury sustained, and this creates the landscape for civil litigation.

Claims against the state in this regard are traditionally hard fought and result, some would say, far too much in favour of protecting the police than the injured.

The law needs to strike the best balance between allowing police officers to be free to go about their duties without the worry of legal proceedings, deterring abuses of power by police officers, and providing appropriate redress for victims in all circumstances.

CLAIMS AGAINST THE POLICE

The critical question is whether or not the state will indemnify a police officer who is found liable for a tortious act causing injury. To do so, it must be accepted that the police officer was acting within the scope of employment.

If it is alleged that the police officer was acting outside the scope of employment, then the ability to claim against the state is lessened and the injured party may need to pursue the police officer personally.

Historically, the common law protected the state from liability for police torts by applying the ‘independent discretion’ rule. Police were regarded as having independent rather than delegated authority and thus the state was not vicariously liable for a police officer’s conduct (‘the Enever position’).^[1] Accordingly, a victim had appropriate redress only where the offending police officer had financial resources to pay damages, and police officers were burdened with the risk of litigation against them while carrying out their duties.

In Victoria, this position was modified by statute in 1958. Section 123 of the Police Regulation Act 1958 (Vic) (the PRA) prescribed that:

‘(1) A member of the force or a police recruit is not personally liable for anything necessarily or reasonably done or omitted to be done in good faith in the course of his or her duty as a member of the force or police recruit.

(2) Any liability resulting from an act or omission that, but for subsection (1), would attach to a member of the force or police recruit, attaches instead to the State.’

The purpose of s123 was to rectify some of the perceived unfairness of the common law position. In practice however, it became apparent that the provision was flawed. The test of ‘good faith’ gave the state a strong defence against indemnifying police officers found liable for torts causing injury. In cases of police assault, malicious prosecution or unlawful arrest, a case worthy of litigation must surely include an injury of significance and an act causing such injury intrinsically could not be said to arise out of an act in good faith. Individual police officers therefore remained defendants in many cases and recovering damages remained difficult, even if liability was arguable.

A need for change

The inadequacies of s123 were highlighted in the well-known case of Horvath,^[2] in which Ms Horvath and other plaintiffs were found to have been subjected to extreme police brutality, and were awarded significant damages against individual, impecunious defendants. The Court of Appeal overturned the trial judge’s decision to transfer liability for some of the awarded damages to the state under s123, on the basis that the officers’ actions failed the good faith test under the provision.^[3] Ms Horvath was refused special leave of the High Court, with the Court making it clear that the issues with the law identified in the case were best remedied by legislative reform.^[4] The victims were accordingly left with an award of damages that was unrecoverable and a great deal of legal costs. Ms Horvath’s case was ultimately taken to the United Nations Human Rights Committee (UNHRC), which handed down its decision on 22 April 2014 – 18 years after the assault.

The UNHRC found that the state had violated Article 2 of the International Covenant on Civil and Political Rights (ICCPR) by virtue of the operation of s123 of the PRA in Ms Horvath’s case.^[5] Article 2, paragraph 3 of the Covenant prescribes that signatory states are to undertake as follows:

‘(a) To ensure that any person whose rights or freedoms as herein recognised are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the state, and to develop the possibilities of judicial remedy;

(c) To ensure that the competent authorities shall enforce such remedies when granted.’

The UNHRC was particularly critical of the state’s failure to provide an alternative mechanism for compensation in circumstances where it had limited its own responsibilities for the wrongful acts of its agents, stating that the procedure for state remedy (as provided by s123) had ‘proved to be ineffective’.^[6]

The Victoria Police Act 2013

Cue the introduction of the Victoria Police Act 2013 (Vic) (VPA), one of the aims of which was to provide greater certainty and clarity in these cases. Whether or not this will happen is still to be seen but the authors have some doubt.

Section 74(1) of the VPA provides that the state is liable for all police torts. A police tort is defined as a tort committed by a police officer or protective services officer in the performance or purported performance of the officer’s duties.^[7]

However, s74(2) of the VPA provides that the state is not liable for a police tort if it can establish that the conduct giving rise to the tort ‘was serious and wilful misconduct’. Section 74(2) is accordingly a replacement provision for s123 of the PRA and while ‘serious and wilful misconduct’ is arguably a much higher threshold than the old ‘not in good faith’ test, the end result is the same – the more abhorrent the conduct of the police officer, the less likely there is to be relief afforded to victims by the state.

From a practical point of view, the initial claim is made against the state^[8] and the joinder of the individual officer or officers is made only if the state pleads in its defence that the s74(2) exemption applies.

What the authors consider most likely is that the state will now plead in the alternative, making indemnity issues front and centre and advice in relation to success as complicated as it was previously. Ultimately, the policy approach taken by the state will also determine the manner in which this is applied.

The current legislation does attempt to deal with the aftermath of the UNHRC decision in Horvath by providing for an ex gratia payment to be made by the state in circumstances where plaintiffs are successful in their actions, but the serious and wilful misconduct exemption is applicable. Section 79(2) allows such payment in circumstances where:

a) The claimant is unlikely to recover the amount from the officer who committed the police tort; and

b) The claimant has exhausted all other avenues to recover the amount.

This provision, while admirable in its intention, still leaves the state with undefined discretion. It only serves to create more uncertainty for a plaintiff who has suffered injury by way of the serious and wilful misconduct of a police officer – both in relation to the amount and the manner in which the payment may occur. The need to have ‘exhausted all other avenues to recover the amount’ is likely to lead to significant additional legal costs for a plaintiff that cannot be recovered on a party/party basis. A further question remains as to whether the legislation goes far enough to rectify the breach of the ICCPR identified by the UNHRC in the Horvath case.

Comparative provisions

These uncertainties are better dealt with by other Australian states – both NSW and Queensland have legislation in place making the State liable to pay damages awarded against police.

In Queensland, s10.5 of the Police Service Administration Act 1990 determines the civil liability of police officers when engaging in conduct in an official capacity. It provides at subsection (3) that liability attaches to the Crown instead of a person. Contribution against the individual is still possible but only if the conduct engaged in was both other than in good faith and with gross negligence. Those practising in the personal injuries jurisdiction know how difficult it is to establish gross negligence in the compensation sphere. Clearly, the circumstances contemplated for recovery mean that the behaviour must be so abhorrent so as to constitute gross negligence, and the reality must surely be that the Crown will rarely seek contribution.

In NSW, the Law Reform (Vicarious Liability) Act 1983 governs the manner in which police tort claims can be made. It provides that a person may not make a police tort claim against the police officer concerned (s9B) but may make a claim against the Crown. An individual may be joined if the Crown denies vicarious liability for the alleged tort (s9B(3)) and if the degree of vicarious liability is in issue; the court will make initial determination of that issue (s9C) prior to the proceeding continuing.

These provisions do not impact on the Crown’s ability to join a police officer or a party’s ability to bring a claim against another tortfeasor, but it does contemplate initial liability disputes and allows any dispute as to the scope of such liability to be dealt with expediently, allowing for more certainty for all affected parties.

There needs to be consistency in the manner in which these cases are approached. The legislation in NSW and Queensland, as outlined, although they vary in their strengths, leans towards a presumption of liability and accordingly more certainty to victims of the most violent of acts.

A problem with injury

Many police tort cases in Victoria are pleaded under the Wrongs Act 1958 (Vic). Section 28LC (2)(a) prescribes that the gateway provision of significant injury for the purpose of seeking non-economic loss damages does not apply in cases where the fault concerned ‘was or related to an intentional act that was done with intent to cause death or injury’. Implicit in this exception is the need to adequately compensate those who are injured as a result of objectively abhorrent actions, irrespective of the severity or permanency of the injuries suffered.

By comparison, a lack of indemnity by the state where ‘serious and wilful misconduct’ is made out under s74(2) of the VPA potentially leaves those injured as a result of objectively abhorrent actions without adequate recourse to compensation.

The authors therefore question whether the serious and wilful misconduct immunity in the VPA is at odds with the objectives of the Wrongs Act. Commonly, the allegations against police officers will include assaults, false imprisonment or malicious prosecution. These will constitute intentional torts, thereby satisfying the s28LC exemption from the significant injury gateway test. However, most intentional police torts will also arguably be categorised as ‘serious and wilful misconduct’, thereby allowing the state to defend indemnity. This scenario certainly doesn’t sit comfortably.

Similarly in the industrial compensation arena, a worker who is assaulted in the course of employment, while needing to satisfy the serious injury test, is nonetheless afforded more clarity and certainty as to the manner in which such litigation is likely to proceed than a person assaulted in the very same manner, albeit in the course of life outside of employment.

Vicarious liability – control and causation

Perhaps the difficulties associated with police torts can further be understood by reference to principles of vicarious liability in other common law contexts.

The High Court judgment of Modbury Triangle Shopping Centre Pty Ltd v Anzil ^[9] stands for the proposition that there is no duty of care imposed on an occupier of premises to protect users of its premises from harm caused by the criminal action of a third party.

It was acknowledged by the High Court, however, that ‘there are circumstances where the relationship between two parties might mean that one has a duty of care to protect the other from the criminal behaviour of third parties, random and unpredictable as such behaviour might be’.^[10] The key consideration in determining such a special relationship is a party’s ability to control the situation.

The idea of ‘control’ as being central to the attachment of liability to third parties has also been explored in varying scenarios in the industrial workers’ compensation sphere. In Stevens v Brodribb Sawmilling Co Pty Ltd,^[11] the issue critical to a company’s liability for injuries sustained by an independent contractor hinged upon an analysis of the nature of the relationship between the two. Although it wasn’t the sole consideration, the level of control exercised over the system of work of the subcontractor was relevant – including whether the work could have just as readily been done by an employee of the company, and the need for directions to be given as to when and where work is to be done.^[12]

The Court of Appeal distinguished the facts of Modbury Triangle in the case of Karatjas v Deakin University.^[13] The court held that Deakin University owed a ‘Stevens v Brodribb Sawmilling’ type duty of care to Mrs Karatjas (employed by a company contracted to operate a cafeteria on the university’s premises) to protect her from an assault by an unknown assailant while walking to her car after completion of her shift.^[14] Consideration of the degree of control exercised by the university over aspects of Mrs Karatjas system of work (particularly, her means of entering and exiting the premises) was crucial to the finding of a duty of care.

In dealing with the fact that there was no direct contractual relationship between Mrs Karatjas and the university, Nettle J stated that ‘lack of a contract is not determinative. Liability in negligence turns on foreseeability and proximity, the total relationship between the parties and questions of fairness, policy, practicality, proportion, expense and justice’.^[15] In this context, the authors consider that the common law protects a vulnerable individual’s right to redress for injuries resulting from the abhorrent behaviour of a third party far more appropriately than the VPA purports to do in the case of police torts.

SECURITY INDUSTRY

The philosophical and practical problems of gaining appropriate redress for victims of police torts are also emerging in the largely unregulated security industry. Any claim for personal injury caused by assault by a bouncer or security guard in the purported performance of their duties can be littered with road blocks and uncertainties.

Bouncers are rarely employed directly by a venue, but more commonly by a security company which may have little or no insurance or assets. Successful actions against the employing company can therefore often lead to no means of enforcement of an order for compensation. As with police officers, suing a bouncer individually is only viable in the case of a wealthy defendant. The attention of a plaintiff’s legal team is accordingly often turned to the liability of the premises which engaged the security services.

The liability of either an employing security company or the venue itself for torts committed by a bouncer will depend on the contractual arrangements in existence between the two, their insurance coverage and, arguably most significantly for a victim, the degree of control exercised by each party in the circumstances.

The NSW Court of Appeal case of Day v The Ocean Beach Hotel Shellharbour Ltd & Ors^[16] dealt with this scenario. Day, who was injured by the conduct of bouncers engaged by the Ocean Beach Hotel, sought to sue the hotel in circumstances where the employing security company (found vicariously liable by the trial judge) was no longer in existence.^[17] The injury occurred when a bouncer, attempting to eject Day from the hotel, pulled a bar stool out from under her, causing her to fall.^[18]

Day argued that the hotel was liable for four reasons:

1. The bouncer’s acts were authorised by the hotel;

2. The bouncer was an agent of the hotel;

3. Section 91 of the Liquor Act 2007 (NSW) implied agency and liability; and

4. The hotel should be held to account on the basis of dual vicarious liability with the bouncer’s employer for the actions of the bouncer.

The court found that the hotel had not authorised the bouncer’s actions nor was he their agent at law ^[19] or deemed to be under the Liquor Act.^[20] It also held that there is no current authority giving rise to dual vicarious liability in Australia and that this is a matter best addressed by the High Court.^[21]

The current state of affairs is that an individual injured by the negligent or criminal action of a bouncer must hope for the bouncer to be a wealthy individual or else must severely compromise the scope of their civil claim to take into account risks of not establishing liability against either the venue or the security company. Once again, the most violent of acts may go unpunished from a civil perspective.

CONCLUSION

In essence, despite attempted legislative reform, the current position with respect to police tort claims in Victoria is not substantially different in practice to that of an Enever position.

Uncertainty and inconsistency means that a victim of a police tort could find themselves in a situation where the actions of a police officer could be construed as serious and wilful misconduct – in essence that the officer acted completely independently of his duties such that vicarious liability is not invoked.

Further, the differences in the law and its application between different states creates additional potential inequities. A clearer position for the victims would also be more consistent with international law standards and basic protections of human rights.

Liat Blacher is a Special Counsel at Adviceline Injury Lawyers. She practises broadly within the personal injuries area with particular expertise in industrial common law, medical negligence and public liability claims. She also has experience in Wrongs Act and intentional tort litigation. PHONE [phone] EMAIL [e-mail].

Lauren Freeman is a Senior Associate at Adviceline Injury Lawyers with expertise in industrial common law, medical negligence, public liability, Wrongs Act and intentional tort claims. PHONE [phone] EMAIL [e-mail].

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^[1] Enever v R [1906] HCA 3.

^[2] State of Victoria v Horvath and Ors [2002] VSCA 177; State of Victoria v Horvath (No. 2) [2003] VSCA 24; Horvath v State of Victoria [2004] HCA.

^[3] State of Victoria v Horvath and Ors [2002] VSCA 177 [52].

^[4] Submission of the Victoria Bar on Civil Wrongs by Police Officers (20 September 2007) p5.

^[5] UN Decision number 1885/2009 [8.8].

^[6] UN Decision number 1885/2009 [8.7].

^[7] Victoria Police Act 2013 (Vic) s72 (1).

^[8] Ibid, s75(1).

^[9] [2000] HCA 61; (2000) 176 ALR 411.

^[10] Ibid, [26].

^[11] (1986) 63 ALR 513.

^[12] Ibid, [16].

^[13] [2012] VSCA 53; (2012) 35 VR 355.

^[14] Ibid, [46].

^[15] Ibid, [36].

^[16] (2013) NSWCA 250.

^[17] Ibid, [6] and [7].

^[18] Ibid, [5].

^[19] Ibid, [19].

^[20] Ibid, [20].

^[21] Ibid, [25 and [33].