'ictoria r Smith v Visser junner y

[49]

conservators of the peace, amongst which perhaps the most important was the authority to arrest on suspicion of felony. To these powers others of a like nature have from time to time been added by statutory provisions, of which the 179th section of the Police Act is an instance. But there is no reason for thinking that the mere statutory addition to the list of their powers altered the essential nature of those powers. It seems also to have been always accepted as settled law that, although a peace officer was himself responsible for unjustifiable acts done by him in the intended exercise of his lawful authority, no responsibility for such acts attached to those by whom he was appointed. In Stanbury v. Exeter Corporation (1), Lord Alverston C.J., referring to the subject, said: - "This case . . . is, I think, very analogous to that of police and other officers, appointed by a corporation, who have statutory duties to perform, where, although they owe a duty to the corporation appointing them, there is no ground for contending that the corporation are responsible for their negligent acts." In the same case Wills J. said (2): "This case is, to my mind, almost exactly analogous to the case of a police officer. In all boroughs the watch committee by Statute has to appoint, control, and remove the police officers, and nobody has ever heard of a corporation being made liable for the negligence of a police officer in the performance of his duties." The learned Judge went on to say : - 'I think that the reason why that is so, although it is not stated in any English authorities, is expressed in the passage quoted from Beven on Negligence, 2nd ed., vol. 1, pp. 388-9. If the duties to be performed by the officers appointed are of a public nature and have no particular local characteristics, then they are really a branch of the public administration for purposes of general utility and security which affect the whole Kingdom; and if that be the nature of the duties to be performed, it does not seem unreasonable that the corporation who appoint the officer should not be responsible for acts of negligence or misfeasance on his part." Whether this be the reason for the rule or not, I think that the passage which I have quoted contains an accurate statement of the law, and that the rule was firmly established that the authorities by whom a constable was

[55]

necessity vested in the representative of the Crown. At that time the maxim respondeat superior did not apply to the Crown, so that it was not important to consider whether the circumstance that the appointment was made by an authority representing the whole community would make any difference as to the responsi- bility of the appointor for the acts of the appointee. In may be suggested that, if the reason given by Wills J. for the rule of liability is the true one, it would no longer apply when once the maxim just referred to was by the Crown Redress Act made applicable to the Crown. I have already sufficiently dealt with this suggestion, and will now proceed with the history of the law of Tasmania as to the appointment of constables. Up to 1865 the appointment continued to be made by the Executive Govern- ment, but by the Act 29 Vict. No. 9, the appointment and control of constables was vested in municipal authorities where they existed, being however retained, where no such authorities were in existence, by the Government. The law continued in this state until 1898, when the Police Regulation Act (62 Vict. No. 48) was passed, by which the appointment and control of constables was vested in an officer called the Commissioner of Police, who was himself appointed by the Executive Government. During the period from 1865 to 1898 there can, I think, be no doubt that the municipal authorities were not liable for the acts of constables appointed by them. But, if the argument for the appellant is sound, the liability of the Government for the acts of the non-municipal police attached as soon as the Crown Redress Act became law in 1891. This argument, if accepted, leads to the singular result that the applicability of the maxim respondeat superior to the case of constables then depended, not upon the nature of the office or of the relationship between the appointor and the appointee, but upon the personality of the employer, with the still more singular consequence that the maxim applied as against the Crown only, and not as against other authorities exercising a precisely similar power under the same Statute. This would in effect be to construe the Act of 1891 not merely as abrogating a rule conferring a special immunity upon the Crown, but as creating a new kind of liability which had

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the Government in this case the ordinary law of master and vant must be applied. In a general sense, no doubt, the constal was the servant of the Government at the time when the tre ' complained of was committed. He held his office under the Police Regulation Act 1898, which gave the Government power to. employ, to pay, and to dismiss him. He was probably required to perform many duties besides those imposed upon a constable - at common law or by Statute, and in the performance of such - duties he would be the servant of the Government, and they would be directly liable for any neglect or default committed by - him in the course of his employment; but the question for our decision is was he the servant of the Government in the per- formance of the particular duty of making the arrest which is the subject of this action. The test of liability in this as in every case is, was the servant in doing the particular act complained of subject to the control of the master, as stated by Bowen LJ. in Donovan vy. Laing, Wharton, and Down Construction Syndicate (1). The rule is well explained by Erle C.J. in Tobin v. The Queen (2). " The liability of a master for the act of his servant attaches in the case where the will of the master directs both the act to be done and the agent who is to do it." It is not contended here that there were any direct instructions from the Government to make this arrest. It was made by the constable in the ordinary course of his duty as constable under the authority conferred on a constable by sec. 179 of the Police Government Act (20 Vict. No. 10). The Act is one for the preservation of order, decency, and public health in - municipalities and towns ; that section makes the disturbance of the public peace under certain circumstances an offence punishable on summary conviction, and gives authority to arrest for the offence - in the following words : - * And any Constable or Public Officer _ may take into custody without warrant and forthwith convey before a justice any person who within his view commits any such offence." The liability of the Government, therefore, did not arise directly, but it was sought to be implied from the genet relation of master and servant between the Government a the constable created by the Police Regulation Act 1898 under - which the constable served. It becomes necessary, then, to con- -

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le serving the Government under the Police Regulation Act , when the constable is using the power conferred on him tatute for the preservation of the peace. It will be noted the constable by his oath under the Police Regulation Act swears that he "will well and truly serve . . . the in the office of constable for the Colony of Tasmania" and it he will to the best of his power &c. . . ."cause the peace be kept and preserve and prevent all offences against the ms and properties of Her Majesty's subjects" and will hold e "said office" to the best of his ability while he continues to arge all the duties thereof faithfully according to law." "office of constable" is still further recognized in sec. 15, h provides that every member of the police force appointed the authority of the Act shall- have such powers and privileges, and be liable to all such duties as any constable duly appointed now has or hereafter may have, either by the common aw or by virtue of an Act of Parliament now or hereafter to be in force in Tasmania. Whilst, by the joint effect of secs. 31 and 1, any member of the police force who is guilty of misconduct, glect, or violation of duty in his office may be punished by fine on summary conviction, and, as at common law, he may be pro- led against for such offences by any member of the public may complain against him. By see. 18 it is provided that a on taking the oath shall be deemed "to have entered into a itten agreement with and be thereby bound to serve Her jesty as a member of the police force in whatsoever capacity he may be at any time thereafter required to serve" at the 'current rate of pay for the rank to which he may be appointed. _ The common law has always recognized the office of constable. 1e duty of locally preserving the peace in England from the liest times has been placed upon local bodies, upon the cennaries and hundreds in the time of Alfred, and later upon rent local bodies, in more modern times upon the Boroughs

Municipalities. The recognized officers for the preservation the peace in these localities have been the constable or 5 ables chosen, elected, or appointed by the local bodies as by provided. The power to arrest for breach of the peace or

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other offences is given by the common law, not to the local bodies responsible for keeping the peace, but to their officer the constable, who in the words of Bae. Abr. (" Constable" Chapter C.) "is not only empowered as all private persons are to part an affray in his presence, but is bound at his peril to endeavour it." In another passage of the same work the constable's duty is stated as follow "And it is said that if he sees persons actually engaged in an affray whether the violence were done or offered to another or even to himself or see them upon the very point of entering on an affray; as where one threaten to beat another . . . . . he may either carry the offender before a Justice of the Peace in order to his finding sureties for the peace," &e. Statutes giving power to arrest have followed the same principle. The power to arrest is given not to the local body, nor the municipality, nor, in cases where a Government Police Force exists, to the Government - but to a constable, that is to a person who for the time being holds the office of constable. It is in this form that the power to arrest without warrant is given under sec. 179 of the Police Government Act which I have quoted - not to the Municipality, which at the time when that Act was passed employed and controlled the police in towns, but a constable of police, the holder of an office, which by law carried with it an obligation to the public to discharge its duties faithfully and efficiently, and a liability to punishment on summary conviction at the suit of any member of the public if those duties were violated or neglected. The Police Regulation Act 1898 makes it clear from. the sections I have cited that the office of constable, with its duties, obligations, and responsibilities directly to the public, was intended to be recog- nized under the Act just as it was recognized by the former Act, the Police Regulation Act 1865, under which the municipality, instead of the Government, controlled the police in towns. Ican see no difference between the two Acts in their recognition of the office of constable with all its direct responsibilities and liabilities to the public. It is abundantly clear that the municipality could not have been held liable for this arrest if it had occurred while the Police Regulation Act 1865 was in force. That a municipality would not, under such circumstances, be liable appears from the

'ictoria r Smith v Visser junner y - [1906] HCA 3 - HCA 1906 case summary — Zoe

At a glance

Court

Decision date

Before

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Judgment (118 paragraphs)

Parties