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In search of certainty

Feature Articles

Cite as: December 2014 88 (12) LIJ, p.12

The Victoria Police Act 2013 introduces reforms for litigation for police torts. The policy adopted by the state will determine the practicality of the scheme and whether parliamentary intentions are realised.  

By Jeremy King and Merys Williams

The Victoria Police Act 2013 (Vic) (the Police Act) received Royal Assent on 17 December 20131 and came into effect on 1 July 2014.2 The Police Act was intended to abolish the Police Regulation Act 1958 (Vic) and create “a new principal act for the administration and governance of the Victoria Police”.3 Accordingly, the Police Act includes new laws that deal with police regulation issues such as rank structure and employment of recruits.

However, perhaps the most significant changes are those outlined in Division 8 of the Police Act in respect to the way in which civil torts litigation is conducted against the state of Victoria and individual officers. These changes have also proved to be the most controversial aspect of the legislation.4 The Minister for Police and Emergency Services, Kim Wells, noted in his Second Reading speech that “the nature of policing duties leaves police officers particularly vulnerable to being sued for torts such as negligence, assault, battery, false imprisonment and malicious prosecution. Without an express legislative scheme, police officers and PSOs are personally liable at common law”.5 He says the purpose of the changes at Division 8 is to provide “greater certainty and clarity for all parties involved in tort claims involving police and PSOs”.6

Civil litigation before the

Police Act

Before the introduction of the Police Act, civil tort claims against the state of Victoria and individual police were governed by the common law and the Police Regulation Act. The common law position was principally set out in the case of Enever v R7 in which Griffith CJ held that:

“. . . the powers of a constable, qua peace officer, whether conferred by common or statute law, are exercised by him by virtue of his office and cannot be exercised on the responsibility of any person but himself . . . A constable therefore when acting as a peace officer, is not exercising a delegated authority but an original authority, and the general law of agency has no application”.8

Accordingly, at common law it was accepted that the state was not liable for torts committed when an officer is exercising his or her independent discretion.9 The rationale behind the premise was that “the officer is not subject to the employer’s control at the time he or she is executing some legal duty that arises independently of the employment relationship”.10 This legal principle came to be known as the Independent Discretion Rule.11 As noted by Mr Wells, an express legislative scheme was required to overturn the common law position. Before the introduction of the Police Act, the legislation that purported to modify the Independent Discretion Rule was set out in s23 of the Police Regulation Act (“s123”) which held that the state, and not the individual member, was liable for “anything necessarily or reasonably done or omitted to be done in good faith and in the course of his or her duty as a member”. The parliamentary intention behind s123 was to “free responsible police members from the worry of legal proceedings while performing their duties”.12

The practical operation of s123

The limited nature of the provision meant that s123 was the subject of substantial criticism.13 This criticism primarily focused on the fact that the state was only liable when its officers were acting “necessarily”, “reasonably” and “in good faith”. The vast majority of police torts, such as assault, false imprisonment or malicious prosecution, are intentional in nature and therefore do not fall within the exception in s123.14 The provision also meant that plaintiffs were almost always forced to add individual police officers to any civil action to “avoid the risk of non-suit.”15 Additionally, if a plaintiff succeeded in proving such an intentional tort, then they were forced to try to recover damages from individual officers. Recovering damages from any individual following a court order can be a costly and difficult task, particularly if the defendant is impecunious. Individual police officers were also exposed to damages claims and costs orders, even if they may have been simply acting in the course of their employment, albeit perhaps unreasonably.

The problematic nature of s123 was highlighted by the infamous case of Horvath.16 In this case, Corinna Horvath suffered injuries during extreme police brutality and was awarded significant damages by the County Court. However, because the police in question were clearly not acting in good faith when they assaulted Ms Horvath, the state sought immunity from liability pursuant to the common law and s123. This immunity was subsequently upheld by the Victorian Court of Appeal.17 Further, several individual officers in Ms Horvath’s case were impecunious. As a result, she was left with only a hollow moral victory and no financial compensation.18

After a failed attempt to appeal to the High Court, Ms Horvath took her case to the United Nations Human Rights Committee (UNHRC). Ms Horvath argued that s123 was in breach of Articles 2 and 14 of the International Covenant on Civil and Political Rights (“ICCPR”) which provide that a person shall have a right to a fair hearing and an effective remedy.19 The UNHRC held that s123 was incompatible with Article 2 of the ICCPR because it “limits the responsibilities of the state for wrongful acts committed by its agents without providing for an alternative mechanism for full compensation for violations of the Covenant by State Agents”.20 That is, the police officers had breached Ms Horvath’s human rights and the state should have mechanisms in place to ensure that she be adequately compensated.

Civil litigation under the

Police Act

Division 8 of the Police Act tries to address some of the issues with s123 that were highlighted in Horvath. In particular, s74(1) of the Police Act specifically holds that the state will be liable for all police torts. Police torts are defined in s72(1) as being “a tort committed by a police officer or protective services officer in the performance or purported performance of the officer’s duties”. Further, s72(2) goes on to provide a list of police torts but specifically notes that the list is not exhaustive. Section 74(3) also provides a measure of protection to individual officers by specifically stating that where the state is liable, individual police officers will not be liable to make a contribution towards the damages.

Ostensibly, s74(1) seems to be a significant improvement on the Police Regulation Act and common law as it provides that, prima facie, the state will be liable for police torts committed by individual officers. However, s74(2) does contain an exception that the state is not liable for the acts of individual officers where “the conduct giving rise to the police tort was serious or wilful misconduct by the police officer . . .” According to the Explanatory Memorandum,21 “serious and wilful misconduct” is to be defined as:

“. . . conduct beyond negligence, even beyond culpable or gross negligence. In order to establish serious and wilful misconduct, it must be demonstrated that the person performing an act or suffering an omission knows that it will cause risk of injury, or acts in disregard of consideration whether it will cause injury. The word ‘wilful’ connotes that the applicant must have acted deliberately. As it seems to me, in order to establish serious and wilful misconduct, a person accused of it must be shown to have knowledge of the risk of injury and, in the light of that knowledge, proceeded without regard to the risk”.22

However, in an effort to ensure that plaintiffs are not left without compensation where a court has found in their favour but serious and wilful misconduct has also been made out, s79(2) of the Police Act provides that the state must pay “an amount” to the plaintiff. This amount must not exceed the total amount of damages and costs, and will only be paid if the minister “is satisfied that:

  1. the claimant is unlikely to recover the amount from the officer who committed the police tort; and
  2. the claimant has exhausted all other avenues to recover the amount. Example: the amount may be recoverable from a co-defendant or an insurer”.23

In addition, there are several procedural reforms to the civil tort litigation process including that the initial proceeding must be brought only against the state, not against the individual police officer,24 and that the individual officers may be joined only if the state pleads in its defence that there was serious and wilful misconduct and/or the tort was not a police tort.25 Further, the Police Act allows the state extra time beyond that prescribed under the normal court rules to consider whether it will plead serious and wilful misconduct in its defence.26 Parliament suggests that additional time may be appropriate when an internal investigation has not yet been completed, when there are multiple police involved or when the issues are complex and require further investigation or further legal advice needs to be obtained.27 When the state successfully defends proceedings on the basis of serious and wilful misconduct by an officer, then pursuant to s78 the state is not entitled to recover any costs or be awarded any costs against the plaintiff or the police officer.28

Issues with the Police Act

The new legal regime outlined in Division 8 of the Police Act has met with considerable criticism by the legal profession.29 Critics argue that, in the same way that most police torts are implicitly not done in “good faith”, most police torts that are the subject of litigation will almost invariably fall within the definition of “serious and wilful misconduct”.30 Further, it has been argued that the creation of a “serious and wilful misconduct” exception to liability creates a bizarre situation that victims of the most serious flagrant and abhorrent police torts will not have the assurance of actually being able to recover compensation, whereas those who suffer loss and damage from lesser police torts will have that assurance.31 Last, it has also been argued that by placing potential barriers to ex-gratia payments under s79, the state’s position on police torts is in fact unchanged and remains in conflict with Articles 2 and 14 of the ICCPR and the UNHRC decision of Horvath.32

There is also considerable concern over the ambiguities in s79 of the Police Act.33 In particular, there is concern that while s79(1) mandates that the state “must pay an amount to the claimant”, such a payment is subject to the conditions of s79(2)(a) that the claimant has “exhausted all other avenues” and is “unlikely” to recover from the police officer. The vague and undefined nature of s79(1)-(2), such as the term “unlikely”, means that the state potentially has significant discretion as to when it considers itself bound to make an ex-gratia payment under s79(1). Further, the fact that it has to pay only “an amount” means that technically the state is not obliged to pay the full amount of damages awarded by a court.

Unfortunately, the Explanatory Memorandum does not provide any further insight, simply noting that the claimant must “demonstrate” that they are “unlikely” to recover the amount from the officers “to the satisfaction of the minister”.34 The Explanatory Memorandum, and indeed s79(2), provide only two examples of what Parliament considers “other avenues”. Such potential avenues are noted as being from a “co-defendant” or an “insurer”. However, the examples provided by Parliament are perhaps unhelpful as it is extremely unlikely that an insurer would ever be involved in a police tort claim for an individual officer and in many cases there may be only a single officer named as a defendant. Further, trying to recover from a co-defendant may place a plaintiff in the same position as Ms Horvath, by being forced to try to recover monies from individuals and facing the costly uncertainty that accompanies such recovery actions.

Further, it should be noted that in its submissions to the UNHRC in Horvath, the state argued that Ms Horvath had not exhausted all other avenues to obtain compensation. Some of the examples provided by the state as potential further avenues available to Ms Horvath included using court rules regarding discovery to presumably find out the officer’s financial position, and applying to the Victims of Crime Compensation Assistance Tribunal (VOCAT).35 In response to these submissions, the committee noted that Ms Horvath had in fact taken steps to enforce the judgment using court processes and that VOCAT claims are largely “symbolic” and limited in nature.36

Potential advantages of the

Police Act

Despite the above criticisms, Parliament’s intention to address the issues raised in Horvath is admirable and some of the provisions of Division 8 of the Police Act must be seen as a step forward for both police officers and potential victims. While it is fair to argue that many police torts may indeed fall within the exceptions contained at s74(2), the Police Act does contain several disincentives for the state to use this defence. For example, if this defence is invoked by the state, and serious and wilful misconduct is subsequently proved, then pursuant to s78 it will be unable to recover any of its costs from either the plaintiff or the individual police. As demonstrated by Horvath, such cases tend to involve long trials and significant legal costs. Further, where the state has successfully invoked the s74(2) defence, if a plaintiff ends up in a similar position to Ms Horvath, then pursuant to s79 the state may find itself paying compensation to the plaintiff despite having technically avoided liability for the action. As such, it could be argued that it would be unwise for the state to invoke the defence in s74(2), save for rare circumstances, as it may find itself unable to recover any of its legal costs and must still pay compensation.

Conclusion

Ultimately, whether the Police Act will overcome the shortfalls of the Police Regulation Act will largely depend on the policy position adopted by the state of Victoria. The Police Act gives extremely broad discretion to the state regarding the use of the serious and wilful misconduct defence. If the state elects to use this defence in most civil litigation torts cases then the intention of the Police Act may well be undermined. Additionally, the state’s policy on how it will interpret s79(2) regarding ex-gratia payments may be key to the success or failure of the new legislation. If a technical and legalistic approach is adopted by the state then plaintiffs may find themselves no better off than Ms Horvath.

In light of the potentially significant disincentives for the state to use the s74(2) defence and the uncertain and potential adverse consequences for plaintiffs, there seems little point to many of the provisions of the Police Act when a simple provision extending liability to the state in all cases would easily solve issues for the state, police officers and potential litigants. Such a legal position may also mean that the state of Victoria would finally be in compliance with recommendations of the UNHRC. Arguably, the only way of truly ensuring compliance with the ICCPR would be to have the state liable for all police torts. The NSW and Queensland governments have introduced similar legislation without significant problems.37 As such, it is perhaps only by adopting such a course that the state of Victoria could truly give meaning to Parliament’s intention to ensure “certainty” for all parties, including protection for police, compensation for claimants and proper compliance with human rights law.

Note: Ms Horvath recently received an ex gratia payment from Victoria Police (www.theage.com.au/victoria/victoria-police-apologises-pays-compensation-to-corinna-horvath-20140922-10kd9o.html).

JEREMY KING is a principal lawyer at Robinson Gill Lawyers, holds a Masters of International Human Rights Law (Utrecht University) and has practised extensively in police torts. MERYS WILLIAMS is a trainee lawyer at Robinson Gill Lawyers and is a member of the Administrative Law & Human Rights Section of the LIV.

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1. Victoria, Victorian Government Gazette, No S 450, 17 December 2013, 1.
2. Victoria, Victorian Government Gazette, No S 200, 24 June 2014, 2.
3. Victoria, Hansard, Legislative Assembly, 16 October 2013, 3428 (Kim Wells).
4. See, e.g., Sophie Ellis, “Opinion: Why the Police Act needs changing” (2014) 88(09) LIJ 28.
5. Kim Wells, Note 3 above, 3429.
6. Note 5 above.
7. (1906) 3 CLR 969.
8. Note 7 above, 977.
9. See, e.g., The State of Victoria v Horvath & Ors (2002) 6 VR 326, 343 [42].
10. Slaveski v State of Victoria & Ors [2010] VSC 441, 640.
11. The Victorian Bar, Submission of the Victorian Bar on civil wrongs by police officers, 20 September 2007, 2.
12. Victoria, Parliamentary Debates (Hansard), Legislative Assembly, 2 December 1999, Book 4, 789 (Andre Haermeyer).
13. See, e.g., Tamar Hopkins, “When police complaint mechanisms fail: The use of civil litigation” (2011) 36(2) Alternative Law Journal, 99; Federation of Community Legal Centres, Submission to Victorian Minister for Police and Emergency Services: Reform to the vicarious liability of Victoria Police for wrongs committed by police officers, 4 June 2008; and The Victorian Bar, Note 11 above.
14. Federation of Community Legal Centres, Note 13 above, 7.
15. State of Victoria v McIver and Ors (2005) 11 VR 458, 461.
16. The State of Victoria v Horvath & Ors (2002) 6 VR 326.
17. Note 16 above, 357.
18. Jane Lee, “Abbott government says it is not legally bound to compensate Corinna Horvath”, The Age (online), 30 June 2014 www.smh.com.au/national/abbott-government-says-it-is-not-legally-bound-to-compensate-corinna-horvath-20140630-zsr14.html.
19. Corinna Horvath, “Individual communication to the United Nations Human Rights Committee”, Communication to the Human Rights Committee in Horvath v Australia, 19 August 2008, 21.
20. Human Rights Committee, Views: Communication No 1885/2009, 110th sess, UN Doc CCPR/C/110/D/ 1885/2009 (27 March 2014) 16 [8.5] (“Horvath v Australia”).
21. Explanatory Memorandum, Victoria Police Bill 2013 (Vic) 31.
22. Sawle v Macadamia Processing Co Pty Ltd [1999] NSWCC 26. [24].
23. Victoria Police Act 2013 (Vic) s79(2).
24. Note 23 above, s75(1).
25. Note 23 above, s75(2).
26. Note 23 above, s77(1)-(2).
27. Explanatory Memorandum 34.
28. Victoria Police Act s78.
29. Joint Letter from Flemington & Kensington Community Legal Centre et al to Dr Denis Napthine and others, 24 July 2014, 3 and Ellis, Note 4 above.
30. Flemington & Kensington Community Legal Centre et al, Note 31 above, 3.
31. Note 30 above.
32. Note 30 above.
33. Note 30 above.
34. Explanatory Memorandum, Victoria Police Bill 2013 (Vic) 34.
35. Horvath v Australia, 14 [7.4].
36. Note 35 above, 14-15 [7.4-7.5].
37. The Victorian Bar, Note 11 above.

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