December 1999 Volume 80 Number 12 "serving the protectors"
To Be Sued or Not To Be Sued
By Mike Woods   (of Bill Morris & Associates)

o you think your assets are safe? You think your employer will be vicariously liable for your mistakes? You think the Government will support you if you’re sued? Bloody idiot! Think again. Active police officers ought to be aware of the dangers of their profession.

Traditionally, Australian law has tended to be based upon English law, with a touch of “Uncle Sam”. Even the drafters of the Constitution used this recipe. We all know how litigious American society has become. And there is clear evidence Australia is following in this regard.

In fact, someone recently told me Australia is now the second most litigious country behind the United States. One need only look at claims relating to “fluffy penises” or people getting a belly ache from orange juice to realize we have come a long way. Even the Premier and high-profile football coaches can no longer seem to settle their differences without resorting to court.

Thankfully, we have not seen too many actions against police officers in the civil courts, although they are on the rise. When I began working for Bill Morris in 1995, I was surprised at how many people wanted advice on suing the police if they managed to be found not guilty. For 15 years before that, I had worked as a detective, police prosecutor and general patrol officer. The thought of being sued hadn’t crossed my mind.

Traditionally, all employers are vicariously liable for their employees’ actions performed during the course of duty, or when acting within the scope of their authority. However, there is a recognized exception where “the employee is exercising an independent authority or discretion conferred by the common law or Statute” (Torts Cases and Commentary).

This rationale was applied to a situation where a police officer made a wrongful arrest, and in the situation where a police officer negligently shot a person while attempting to arrest some prison escapees. In both cases the employer was held not to be liable at common law. There are, of course, many situations where police would be covered at common law.

Thankfully, there has been some statutory intervention. Section 65 of the Police Act 1998 is couched in the same terms as the old Police Act of 1952. Essentially, liability which would normally lie against the individual will lie against the Crown for “honest” acts or omissions in the exercise, discharge or purported exercise or discharge of a power, function or duty conferred under any act or law.

It sounds good, but these provisions are giving your association - and therefore you - a problem. For example, a high-speed chase ensues. The offender is driving at dangerous speeds with police in pursuit. Roadblocks are set up. When approaching the roadblock a police officer adjusts the blocking vehicle and the defendant crashes. A passenger is badly hurt. Other police converge to arrest the driver who resists.

Later, a police complaint is lodged against the arresting officer alleging that he/she used unnecessary force. The defendant issues civil proceedings against the officer for trespass to the person. The passenger decides to sue both the officer who moved the vehicle and the Crown as his or her employer.

This scenario is certainly realistic. In fact, in Winter v Cth (1992) (Australian Torts Reports 81-197) the Commonwealth was sued after a police officer blocked the path of a motor bike (in Canberra) ridden for 20 minutes during a chase at 150km per hour by a person who was drunk.

The plaintiff was convicted of manner dangerous, culpable driving and many other offences. The Commonwealth argued he shouldn’t be able to recover because he was acting unlawfully. The Commonwealth lost and the court held the police officer had a duty of care toward the pursued offender.

While the officer was found to be “legitimately setting up the road block, he was required to stop the offender, not cause him injury.” The plaintiff succeeded, but had his damages reduced by 80 per cent for contributory negligence.

I wouldn’t want to have paid him $30,293.61 (after an 80 per cent reduction). However, given that the officer was acting “legitimately” and made an error of judgment, the liability fell with the Crown.

In this example, I would also expect the Crown to accept that the officer who moved the vehicle was “honestly exercising a power or duty”. Additionally, unless their was any suggestion of a deliberate attempt to ram the car or injure the person, it is likely the Crown would also cover the officer under Section 65.

However, the “excessive force” allegation is more problematical. Obviously, if a gratuitous assault occurs then one is not likely to be covered. Thankfully, not too many of those occur. Most allegations arise during the course of arresting an offender. (Bill and I have a number before the Police Tribunal currently.)

What concerns me is that the Crown often won’t make a decision as to whether it will cover members until the outcome of criminal or disciplinary proceedings is known. The Crown impart an element of “reasonableness” to the test of honesty. I suppose its logic is sound.

There is ample case law to suggest that when a subjective test of “honesty” is stated, then the reasonableness of a person’s belief will go to assist the court to decide whether it was honestly held. That is, to my knowledge, the only way in which reasonableness forms part of the basis for assessing honesty. However, it must be mighty frustrating for the Police Association when it approaches the Crown, which in turn is non-committal, or worse still refuses indemnity on the basis the officer did not act reasonably.

Surely, the Crown is also bound by section 65 of the Police Act 1998. In my opinion it is required under the Police Act to cover every member (not police cadets) unless and until they are shown to have acted dishonestly in the discharge of their functions or duties. There are many acts which may not be reasonable, but which are honestly done. In fact, in many negligence cases the very basis of the breach of duty of care is based on a lack of reasonableness.

Further, there is a presumption of innocence which applies to police as well. Unsubstantiated allegations ought to remain that unless shown otherwise. It is wrong to abrogate a statutory duty on the basis of an “allegation”.

Unless a specific finding is made, there will be many cases in the Police Disciplinary Tribunal where the finding may or may not show the officers acted unreasonably, and certainly won’t assist as to whether they acted honestly.

Police are in a very different position from most people. They are required to answer questions and have no right to silence. It is quite possible the answers they give under compulsion could be used in civil proceedings against them. For that reason alone there ought to be a lot of evidence as to a lack of “honesty” before the Crown decides not to cover police.

Police need to be even more careful now given that the Government has seen fit to reduce the burden of proof in police disciplinary matters. No doubt the Crown will love to interpret any adverse finding in the tribunal as amounting to a lack of “honesty”.

Being sued seems clearly to be on the rise. The Police Association will continue to fight on your behalf, as we will when so permitted, on this and other issues affecting association members. In the meantime, ensure your assets are protected just in case the inevitable occurs.

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